QB-2022-001397 - [2025] EWHC 2193 (KB)

The Claimant contends that the Guardian did not believe, and could not honestly have believed, that publication of the first article was in the public interest given what he describes as the “sheer malice” of intermediaries and sources, many of whom are said to have had “axes to grind”.

Before considering the intermediaries and sources, in view of the way in which Mr Lewis, Ms Osborne and Ms Kale were cross-examined, I emphasise that each of them endeavoured to assist the Court by giving honest and reliable evidence. Each of them approached the investigation from a starting point of having no prior knowledge or opinion about Mr Clarke. Ms Osborne and Ms Kale were each accused in cross-examination of having “an agenda”, seemingly to “get Noel Clarke”. That allegation has no foundation, and is demonstrably disproved by the materials before me which show the extensive efforts they made to investigate, test and corroborate the information they received, and not to publish allegations which they could not substantiate.

Ms Kale was accused of “bias” on the grounds that she described John Barrowman’s behaviour in exposing his penis on set as “tomfoolery”, in contrast to her description of Mr Clarke’s behaviour. However, this reflected the fact that numerous witnesses described the incidents involving Mr Barrowman as “inappropriate pranks”. The fact that those present did not perceive Mr Barrowman’s conduct as “sexually predatory behaviour” had to be, and was, fairly reflected in the sixth article.

The misperception that Ms Osborne and Ms Kale simply “believed the women”, without more, seems in part to have arisen from the approachable way in which they sought to connect with their sources, and show understanding and empathy. However, in doing so, they were using their skills as journalists. As Mr Lewis explained, as an investigative reporter,

“You do have to be somewhat chameleonic and speak to people in different ways. You intuit your way through those conversations. In a conversation with someone who is a victim of alleged misconduct, I think we are probably particularly aware of trying to put people at ease.”

No fair criticism can be levelled at the reporters for adopting such an approach. They continued to exercise their critical reasoning, and to test and further investigate the information they received. I also accept Mr Lewis’s evidence (which was supported by the other Guardian witnesses and the contemporaneous evidence) regarding the role he performed:

“My job as an editor is not just to edit the copy, it is to stress-test the story, to say, ‘How do we know this is true? Is there another explanation for what may have happened here? To what extent do you really believe this person?’, to play Devil’s advocate. I remember doing that repeatedly with Sirin and Lucy…”

The case that Mr Lewis and the reporters themselves became a party to a conspiracy and knowingly deceived Ms Viner and others to secure publication of known falsehoods was not put to them, and cannot be advanced. It is, in any event, wholly unfounded and meritless.

The Claimant’s closing submissions allege that Mr Lewis, Ms Osborne and Ms Kale “accepted that they were aware of the malicious anonymous email campaign, and the lies and malice of the intermediaries”. That is not true. Their evidence was that one of the group of seven (who I find was Kevin Proctor) had set up an anonymous email account to receive and collate allegations (some of which may have been passed on to BAFTA). Ms Whyte heard about that account through a friend in the industry and sent an anonymous email to it. Later, and separately, Ms Powell set up an anonymous email account from which she emailed a number of people whose contact details she had, informing them of the Guardian’s investigation and providing Ms Osborne’s contact details. None of those actions were taken at the behest of the Guardian, but Mr Lewis, Ms Osborne and Ms Kale did not accept the characterisation of any of those actions as “malicious” or a “campaign”.

Nor did they accept that the anonymous accounts, insofar as they were provided by the Guardian’s sources, were “lies”. There was an anonymous email sent to Ms Osborne (which referenced alleged assault or rape of “over 2 dozen victims”) which Mr Lewis acknowledged could arguably be malicious. But it was not from someone who became a source. Ms Osborne explained that the Guardian received another anonymous email from the same email address with details of “what this person was alleging had happened to her”. They were able to work out who they thought had sent these emails, and received some corroborative information, but “we tried to approach that person and she did not want to talk to us”. The woman who Ms Osborne believes sent that email “was not somebody whose allegation formed part of the investigation because we were not able to speak to her so therefore she was not going to be someone we would rely on in any way”. As Mr Lewis said, the Guardian “would never publish anything based on an anonymous email”.

The three intermediaries who are accused of hostility towards Mr Clarke are Mr Krishna Floyd, Ms El Hosaini and Mr Proctor. Their views of Mr Clarke are of little consequence in assessing whether the Guardian’s belief that it was in the public interest to publish the first article was reasonable, given that they were not the sources of any of the material that was published, nor of any material relied on in assessing the credibility of that which was published. But I do not accept that any of them acted out of malice.

Based on the allegations of sexual misconduct that they had heard from people in the industry, it is evident that Mr Krishna Floyd and Ms El Hosaini felt strongly that it was wrong for BAFTA to elevate and further empower Mr Clarke by giving him a prestigious special award. Mr Krishna Floyd expressed concern in a phone call to the Chair of BAFTA that the award may have been “a box-ticking exercise cos he’s black and working class”. Ms Kale did not agree with those comments, which she considered were not well expressed, but reflected Mr Krishna Floyd’s opinion that Mr Clarke’s body of work did not merit such an award (a view he was entitled to hold, albeit it was immaterial so far as the Guardian was concerned). Nonetheless, Mr Lewis’s belief, having spoken directly to both Mr Krishna Floyd and Ms El Hosaini on several occasions in early April 2021, that they were acting responsibly, with good intentions, was well-founded and reasonable in the circumstances.

Mr Proctor was in a relationship with ‘Imogen’ at the time, and Ms Osborne said (without confirming his identity) that he was genuinely upset about how he believed Mr Clarke had treated people he knew through his work in the industry. The submission that Mr Proctor’s acts were malicious is fundamentally inconsistent with Mr Clarke’s admission that Mr Proctor believed the accounts he collated were true (para ‎525 above).

Mr Lewis did not accept that any of the Guardian’s sources had an axe to grind with Mr Clarke. He acknowledged that some people had disputes with him unrelated to sexual misconduct, but he did not think that the sources were speaking to the Guardian for those reasons.

The only source for the first article who had such a dispute was Ms Powell. She was Ms Osborne’s source. Ms Osborne spoke to her at length on at least five occasions prior to publication of the first article. Following discussions with Mr Lewis, Ms Osborne went to great lengths to test and corroborate Ms Powell’s account, including seeking documentary evidence regarding the financial dispute (which Ms Powell had revealed long before it was raised in Simkins’ letter), and questioning Ms Powell about it. Ms Osborne said that Ms Powell was “very willing to send me all her records”. The assessment of Mr Lewis and Ms Osborne, with which Ms Kale agreed, that Ms Powell was a credible source who was not motivated to come forward by a past financial dispute, cannot be faulted.

It was put to Ms Kale that Jing Lusi also had an axe to grind, a proposition with which she disagreed. There is no suggestion in Ms Lusi’s case of any reason, other than the treatment she alleges she was subjected to, for her to be hostile towards Mr Clarke. Ms Kale’s view, having spoken to Ms Lusi on many occasions prior to publication of the first article, was that she is “quite a passionate person” who is “very forceful in her language”. But she was a credible source whose account was consistent when repeatedly tested, and it was corroborated by contemporaneous documents and other sources who she told of her experience shortly afterwards. That, too, was a reasonable assessment.

Mr Fairbanks has been accused of having an axe to grind. But he became a source after publication of the first article, and the only published information for which he was a source was the information (published in the eighth article) that he “contacted the Met shortly after the Guardian’s investigation was published in April 2021”, which has never been disputed. More generally, Mr Lewis gave well-founded and persuasive evidence that:

“I believe we had a strong handle over all of our primary sources and the relationship they had with Mr Clarke, including any prior grievances, because they volunteered it to us.”