I now come to section 7(3) because, like the judge, I consider that the questions which arise under section 7(3) constitute the real matters at issue. It will be remembered that it was argued on behalf of Mr. Tsikata that there was no need in 1992 to mention his name at all. This argument, however, can be disposed of quite easily. Mr. Tsikata continued to be a member of the Government in 1992 and he provided the suggested link with the events of 1982. The much more difficult question to my mind is whether the publishers can claim that it was for the public benefit to publish a reference to the recommendations of the S.I.B. without at the same time (a) giving the public any information about the Attorney General's comments and the reasons which he gave for declining to accept the S.I.B.'s recommendations and, (b) referring to Mr. Kwei's subsequent retraction of his allegations that Mr. Tsikata was involved in the killings.

I confess that I have found this to be a more difficult point than did the judge. In the end I think the solution is to be found by considering the basis on which this privilege exists and the surrounding facts. The law provides that in certain circumstances and in relation to certain types of subject matter a newspaper is entitled to qualified protection if it publishes a fair and accurate report of proceedings in public before a tribunal in a Commonwealth country. A newspaper may not know what happened subsequently nor may the newspaper be in a position to assess the quality or effect of any later denials or refutations. Each case must depend on its own facts. But in this case it seems to me that a prima facie defence is made out and that the conditions in section 7(3) are satisfied.

I turn now to the third sentence in the words complained of and the question of qualified privilege at common law. The decision of the Privy Council in Perera v. Peiris (supra) provides guidance as to the scope of the qualified privilege which exists at common law for reports of the proceedings of this nature. Parliament, however, has conferred a statutory privilege in certain circumstances by the provisions enacted in the Act of 1952. In these circumstances the fact that the first two sentences of the words complained of might have been protected by common law privilege is no longer of importance except in so far as it throws light on the possible protection of the third sentence. I have come to the conclusion, as did the judge, that if the facts stated in the third sentence had any defamatory meaning the publication of them was prima facie protected by qualified privilege as being part of the matters relating to the proceedings which the public were entitled to know. I would therefore hold that the third sentence was protected by qualified privilege at common law.

I should make it quite clear, however, that what I have said is wholly without prejudice to the question whether the defence of qualified privilege can be defeated by proof of malice. The care which was exercised in relation to this publication and the reasons why, as it could be said, only one side of the story was told will no doubt require careful examination.

For the reasons which I have endeavoured to outline I would dismiss the appeal. LORD JUSTICE WARD: I agree with Neill L.J.'s judgment. With diffidence, but with deference to the compelling submissions addressed to us on the delicate and important balance between the integrity of personal reputation and the freedom of the press, aspects of the which I did not conceal were troubling me, I shortly state how I came to my conclusions.

These questions seem to me to need answer:

1. What were the "proceedings in public of a body ... appointed to hold a public inquiry by the government" of <> <\l > Ghana <> <\l > ?

Were they:

(a) only those sittings of the S.I.B. which were open to members of the public; or,

(b) did the proceedings comprise not only the evidence, submissions, rulings, etc. occurring in the public hearings but also the report of the body's conclusions even though the Board itself did not make its findings public but only submitted the report to the Attorney General, as it was required to do, "for the necessary action to be taken thereon"; or,

(c) bearing in mind that it was the Attorney General who made the report public, did the "proceedings in public" incorporate his public refutation of the report and his reasons for exonerating the plaintiff and for not prosecuting him? There is no issue about (a) because the public sittings were at least part of, if not the whole of the proceedings but this does not advance the case because the Defendant's publication did not relate to that part. To my mind there is no difficulty about (c) and about excluding the Attorney's comments on the Board's report. "Proceedings" are defined to be the proceedings of "a body appointed to hold an inquiry." The Attorney held no such appointment. He could not be part of the appointed body nor could he become part by doing what he had to do, namely, take action on the report.

Question (b) is not so easy to answer.There is force in the submission that the proceedings in public ended with the last open sitting of the Board. Whilst "proceedings in public of an international court" provided for in paragraph 3 of the Schedule might ordinarily include the most important part of the proceedings - the judgment - that would invariably be delivered in open court. A public inquiry by contrast usually submits its conclusions to the government which decides whether to publish or not. Mr Tugendhat Q.C. submits that had these events taken place in the United Kingdom, the publication of the findings may have fallen within paragraph 12 which covers "any notice or other matter issued for the information of the public by or on behalf of any government department, officer of state...or chief officer of police" but does not fall under paragraph 10(c) which deals with the reports of "proceedings at any meeting or sitting"of any "commission, tribunal, committee or person appointed for the purposes of any inquiry by ...a Minster of the Crown". He submits that paragraph 10(c) is the domestic equivalent of paragraph 5. I cannot accept that submission. Paragraph 10(c) must be narrower because it refers to the report of proceedings at any meeting or sitting . Paragraph 5 has no such limitation. If the reports to be protected under paragraph 5 were intended to be confined to reports of the meetings and sittings of the Board, paragraph 5 could have expressly so provided as was done in paragraph 10(c). Something more than the meetings and sittings must be envisaged.

In my judgment a literal construction of the schedule is not appropriate. If it were, paragraph 12 is wide enough to apply but neither party submits that can be right. That literal approach would produce the absurdity that a judgment of the Supreme Court of the U.S.A. might not be covered but a notice issued by the chief officer of police in Ruritania might be. A purposive construction must be given to the schedule. The purpose was to avoid the common law investigation into the origin and status of the inquiring body and to categorise those whose reports would automatically enjoy privilege. Common sense informs us that the proceedings of a public inquiry begin with the evidence but end with the findings. Save exceptionally,the findings are published in the public interest. Those conclusions are what the public want to know and what the newspapers want to report. The purpose of the Act must be to give such reporting protection. "Proceedings" should be widely enough construed to cover the culminating act of the Board if those findings are made public in the ordinary course of events. That may vary from case to case but the facts here are so close to the facts of Perera v Peiris [1949] A.C. 1 that a statutory privilege must be inferred in place of the common privilege which would previously have been enjoyed.

2. What constitutes a"report" of those proceedings? On the face of it, to write the first two sentences -(1)" ...three High Court Judges were...executed... " and (2) "A special inquiry ...recommended the prosecution of ... (the Plaintiff) ... as the mastermind of the plot", is to give some narration of and so give a "report" of the proceedings. The first sentence, whilst not itself alluding to the report, is necessary to introduce the commentary and only the punctuation separates it from the second sentence. They must be read together. On the other hand, the third sentence deals with events that followed and cannot, therefore, be a report of the proceedings which can thereby gain statutory privilege. In my judgment, it is a report if it is an account of or a resume of the proceedings. There is no limitation of time or editorial purpose as Mr Tugendhat contends. There is no requirement of the kind found in section 3 of the Law of Libel Amendment Act 1888 relating to judicial proceedings that the report must be published contemporaneously with the proceedings. Current reporting was not required by section 4 of that Act (the forerunner of the provisions before us). Nor do I see any justification for a distinction between a report as a news item and a report as a political commentary. The role of the press is to inform the public of fact as well as by comment based on fact.

3. Was the report a "fair and accurate report of (the) proceedings"? The report correctly summarises the board's findings and there can be no challenge to its accuracy. Fairness is essentially a matter of balance. A certain degree of selectivity is given to the reporter who, subject of course to malice, can report a resume only provided that the impression he recounts would approximate with the opinion of the reader of the whole of document thus summarised. The theory is that the reporter represents the public - he is their eyes and ears and he has to do his best, using his professional skill, to give them a fair and accurate picture of what he saw or heard. In Cook v Alexander [1974] Q.B. 279, 288, a case involving a Parliamentary sketch, Lord Denning M.R. gave this test :-

"He need not report it verbatim word for word or letter for letter and it is sufficient if it is a fair presentation of what took place so as to convey to the reader the impression which the debate itself would have made on a hearer of it. Test it this way: if a member of the house were asked: "What happened in the debate ? Tell me about it." His answer would be a sketch giving in words the impression it left on him, with more emphasis on one thing and less emphasis on another, just as it stuck in his memory."

The report must be a fair report "of any proceedings". The proceedings are the Board's proceedings and do not include the Attorney's reasons for rejecting their findings. For the purpose under consideration, the required balance has to be struck internally and the Attorney's view do not come into that equation. Fairness is established.

4. Is this a publication of matter "which is not of public concern and the publication of which is not for the public benefit"? This is the most troublesome question for me. If the answer is yes, then by virtue of section 7(3) protection is lost. At common law the essence of the privilege,as it is expressed in Perera v Peiris at p.21 is that:- "If it appears that it is to the public interest that the particular report should be published privilege will attach."

I venture to think that the public interest may be measured by the degree of public concern and public benefit. I agree that the public are legitimately to be concerned about the extent to which fundamental human rights and freedoms are being upheld in Commonwealth countries. The assassination of the three judges was a gross attack on the freedom of the law. It was an act so reprehensible that the public of the United Kingdom had a concern to know about it and to know that a judicial inquiry had laid the blame squarely on the Plaintiff. But that was not the only view taken of his responsibility. The Attorney analysed the Board's findings and pointed to inconsistencies he found in it. The Plaintiff gave evidence for the prosecution of the others named in the Inquiry,and his denial of his involvement was not challenged and so was accepted by the Military Tribunal. His accuser apparently recanted in the face of the firing squad. There was, therefore, another side to the story. I am not sure how much of that was known to the journalist. What has caused me great anxiety is whether the public truly gain benefit from this article if they are only told half the truth about the matter in issue. Should reputation suffer such a sacrifice to give freedom to the press? At the end Mr Kentridge persuaded me that there a public benefit in receiving this information. Its source was a judicial inquiry whose status derived from a law passed to empower it. The inquiry was conducted along judicial lines. The Plaintiff had the opportunity to put his case. The subject matter was of the gravest relevance to the conduct of affairs in <> <\l > Ghana <> <\l > and the due administration of its government. The Plaintiff was then a Special adviser to ruling Council and was responsible for the security services. He was a close aide of Flight Lt. Rawlings. Moreover, and crucially, he remained in high office in the government whose part in the forthcoming elections was under critical review. He is not part of history though his actions may be. There is a benefit in knowing what view the Inquiry had taken of him. Their status commands some respect. To require a newspaper so thoroughly to investigate subsequent events and report them in order to place the whole picture before the public in order to exclude damage to individual reputation is to make unacceptable inroads into the press' role as the public watchdog. It transforms investigative journalism from a virtue to a necessity. A degree of flexibility must be allowed and that will vary from case to case. Here I have been persuaded that the publication of the report is entitled to its qualified privilege.

5. Is the third sentence privileged?

This can only enjoy a common law privilege if publication is in the public interest. The information conveyed by this sentence is so closely related to the first two that the same considerations will apply to protect it. I agree the appeal should be dismissed.

LORD JUSTICE THORPE:

I have had the advantage of reading in draft the judgment of Lord Justice Neill and I am in complete agreement with it. The unusual facts of this case give rise to a point that I as a newcomer to this field have not found easy. If the first publication of the report of a public enquiry is by a Government minister at press conference and if simultaneously the minister publishes his own report reasoning his rejection of the recommendation contained in the public enquiry report I considered as a matter of strong first impression that subsequent newspaper reports should not be entitled to invoke any special defence to a plea of defamation if they had chosen to report only the criticism contained in the public enquiry report and to omit any reference to the minister's simultaneous dissenting report. However I was persuaded by Mr Kentridge's submission that section 7 of the Defamation Act 1952 allows that outcome.

There can be no doubt, in my judgment, that the report of the Special Investigation Board falls within the terms of paragraph 5 of the schedule to the Act. The Board conducted its inquiry in public and its report was subsequently made public by the Attorney General. It would be quite unrealistic to construe paragraph 5 narrowly to distinguish between the public hearings of the Board and the publication of the report not by the Board but by the Attorney General. The report is an essential part of the proceedings of the Board and its proceedings were throughout essentially public.

Strictly analysed only the second of the three sentences complained of reports the outcome of the Special Investigation Board. Although it is no more than the briefest of summaries it could not be said to be unfair or inaccurate in itself. Thus it is entitled to statutory protection under section 7 unless that protection is forfeit under section 7(3). The issue raised under section 7(3) is agreed by both parties to be the nub of this appeal.

Events in <\l > Ghana at the date of publication seem to me to show beyond doubt that the article complained of addressed matters of public concern and was of benefit to the public in that it enabled the substantial body of the readership interested in current foreign affairs to form a more balanced judgment on the issues in and outcome of the pending Ghanian election. Of course it is said that benefit to the public was sacrificed by such a selective presentation of the history of events in 1983. To be of true benefit the public should have been informed not only of the condemnation of the Special Investigation Board but also of the Attorney General's report with its reasoned rejection of the recommendation of the Special Investigation Board. Mr Kentridge's response is that the Independent was entitled to report the accusatory findings of the Special Investigation Board as a distinct outcome and without reference to subsequent or even contemporaneous qualification. He founds that submission principally on Perera v Peiris [1949] AC 1 and Blackshaw v Lord [1984] QB 1. Only authoritative refutation has the effect of removing the qualified privilege which otherwise attaches to the report. I conclude that that submission is justified by the authorities. Whether or not a report is on a matter of public concern and for the public benefit within the terms of section 7(3) is a question of fact and in this case by agreement that question of fact was to be determined by the judge. There seems little guidance as to what constitutes authoritative refutation. It seems that the phrase was coined by Stephenson LJ in Blackshaw v Lord and I accept Mr Kentridge's submission that it is most easily illustrated by the case of a criminal charge subsequently conceded to have been mistakenly brought alternatively subsequently dismissed. Mr Tugendhat's submission that here was an a fortiori situation I did not find convincing. The facts found by the Special Investigation Board led them to the conclusion that the plaintiff was the mastermind of the conspiracy to murder. They reached that conclusion having heard sworn evidence from those seeking to exonerate themselves. The Attorney General rejected their recommendation on the ground that in his judgment he would not secure a conviction against the plaintiff. The subsequent events during the trial before the Public Tribunal and the circumstances surrounding the execution of Joachim Kwei seemed to me to be of doubtful weight. But the judge gave careful consideration to these and other circumstances before reaching the conclusions which he did. Despite Mr Tugendhat's able submissions no error in those conclusions has been demonstrated to me. Order: appeal dismissed with costs; leave to appeal to the House of Lords refused.