Depp libel trial reveals problems of proof in domestic violence cases

Despite being a libel case, Depp v News Group Newspapers Ltd & Another felt more like a criminal trial at the Old Bailey, or a domestic violence hearing in the family courts.

Both Sasha Wass QC, for NGN, and Eleanor Laws QC, for Depp, who carried out the respective cross-examinations of the actors and former spouses Johnny Depp and Amber Heard were, for example, drafted in because of their expertise in the criminal courts.

Depp’s lawyers argued that the gravity of the allegations meant that the civil standard of proof applied in defamation cases should be applied “flexibly”, so that the more serious the allegation “the stronger must be the evidence before a court”. The standard of proof in a civil case rests on the balance of probability, whereas in a criminal case it relies on the matter being beyond reasonable doubt.

In his skeleton argument at the start of the trial, David Sherborne, representing Depp, said: “Because [NGN] are seeking to prove true an allegation of guilt of criminal conduct, the standard of proof and the evidence capable of proving the allegation take on particular importance.

“This is because they are seeking to prove true a very serious allegation and a finding to that effect is one with potentially serious consequences. The evidence required therefore to prove their case needs to be compelling.

“The issue of credibility,” he added, “is of particular importance.”

The key issue for the trial judge, Mr Justice Nicol, to determine is whether an April 2018 article in the Sun was defamatory. Under the 2013 Defamation Act, a publication is not defamatory unless it has caused or is likely to cause “serious harm to the reputation of the claimant”.

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Depp’s claim is that the article bore the meaning that he was “guilty, on overwhelming evidence, of serious domestic violence against his then wife, causing significant injury and leading to her fearing for her life, for which he was constrained to pay no less than £5m to compensate her, and which resulted in him being subjected to a continuing court restraining order; and for that reason is not fit to work in the film industry”.

He denies the allegations and maintains he “has never hit or committed any acts of physical violence against Ms Heard”.

The Sun’s publisher, NGN, is relying on a defence of truth. The onus is on the paper to prove that the allegations are “substantially true”, that Depp beat Heard, causing her to suffer significant injury and on occasion leading her to fear for her life. It maintains it was obvious the £5m was part of a divorce settlement, not compensation for physical assaults.

The paper relied on 14 separate allegations of violence and claimed that Depp was “controlling and verbally and physically abusive” towards Heard, particularly when he was under the influence of alcohol and/or drugs.

If Depp wins, the judge will have to decide what level of compensation he should receive for the harm to his reputation and for the “distress, hurt and humiliation caused”.

As well as general damages, Depp may be able to argue he is entitled to aggravated damages. The actor is also asking for a final injunction against NGN, who his legal team say “have retained the article on their website and maintained their allegation to the bitter end”.

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The case raises many issues, among them how difficult cases can be if two people give diametrically opposed accounts of events that occurred in private.

If four weeks of courtroom investigations – aided by first-class lawyers examining CCTV recordings, text messages, photos and numerous witnesses – still struggle to establish the precise truth of what happened, then how hard must it be for family courts processing thousands of domestic violence allegations every year?



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