A significant defamation case has recently been decided in England, Hay v Cresswell [2023] EWHC 882 (KB), which was handed down on 26 April 2023.

The case is likely to be persuasive in Australian courts, in many respects, including findings in relation to the credibility of the Defendant.

The case involved a sexual abuse victim, Nina Cresswell, who successfully defended a libel claim brought by the perpetrator, William Hay.

This case is noteworthy as it is the first reported case where a sexual abuse survivor naming their perpetrator has successfully relied on the public interest defence under section 4 of the Defamation Act 2013 (England and Wales).

Ms. Cresswell had met Mr. Hay in 2010, after which he sexually assaulted her.

The assault was reported to the police, but they did not treat her complaint as a crime, and so Mr. Hay was never arrested or charged.

A decade later, Ms. Cresswell decided to name him publicly in a blog, an email, and in social media posts, after which Mr. Hay sued her for libel.

The court held that the single meaning of the five publications by Ms. Cresswell was that Mr. Hay had violently sexually assaulted her. While there was limited evidence before the court, it found Ms. Cresswell's evidence more persuasive than Mr. Hay's, thus establishing the substantial truth of the allegations.

The court also noted that the public interest defence was applicable in this case.

The judge considered Ms. Cresswell's publications to be on a matter of public interest, and her belief that her publications were in the public interest was found to be reasonable given the circumstances.

However, this ruling does not provide a carte blanche for survivors to name perpetrators.

The primary question considered by the judge was one of truth versus falsity, and Ms. Cresswell still needed to be able to prove the truth of the allegation to the civil standard (balance of probabilities). If her allegation had been found to be deliberately false, her public interest defence would have failed.

At [20] the Judge stated:

For the avoidance of doubt, I indicate that if I had concluded that the defendant's allegation was a deliberately false one (contrary to my primary finding above), I would not have found that she believed that publishing the statements in question was in the public interest or that such a belief, if it existed, was reasonably held.

The Judge, in this case, expressed some concerns about certain aspects of the Defendant's evidence:

The Judge did not accept the Defendant's claim that she had identified Mr. Hay to the Northumbria Police officers as her assailant on the morning of May 28, 2010, or that she had mentioned specific physical characteristics like tattoos or a septum ring. The Judge felt that even though the police investigation was superficial and inadequate, it was unlikely that the officers would have overlooked such details if they had been provided.
The Judge also questioned the Defendant's account that the police officers told her they had seen CCTV footage of her leaving the nightclub alone and wearing a leather jacket. The Defendant suggested that this was a further indication of the police investigation's deficiency, as she had left her jacket in the nightclub. However, the Judge found no reference to the police attending the nightclub in the incident log and doubted that the officers would have had the time to do so, isolate the relevant footage, and identify her in it. The Judge concluded that this aspect of the Defendant's account seemed aimed at bolstering her criticism of the police's response.

Despite these concerns, the Judge ultimately did not doubt the honesty of the Defendant's account in its essential aspects, which was supported by other evidence. The Judge recognized that an otherwise honest witness might be tempted to embellish their case, particularly in areas where they feel vulnerable. The Judge concluded that this is what had happened in this case.

The judgment shows that civil courts will not shy away from findings of truth even in the absence of a criminal investigation, caution, or conviction.