26 Apr 23

“Tattoo MeToo” libel claim won by sexual assault survivor

The claimant (William Hay) sued for libel over a blog, an email and social media posts published in June & July 2020, in which the defendant (Nina Cresswell) accused him of a violent sexual assault a decade earlier.

Ms Cresswell (then a student) had been introduced to Mr Hay (a tattoo artist) by a mutual friend in a nightclub in Sunderland on 27 May 2010 – with the sexual assault happening in the early hours of 28 May 2010. Ms Cresswell made a police report immediately after the assault, but within hours Northumbria Police decided that her complaint was “not to be crimed”.

By 2020, the “Tattoo MeToo” campaign was exposing the prevalence of sexual abuse in the tattoo industry. Ms Cresswell decided to go public about her assault, to alert other women about Mr Hay’s behaviour towards her.

Mr Hay sued for libel, saying that Ms Cresswell’s publications caused serious harm to his reputation. Ms Cresswell principally relied on defences of truth and public interest - sections 2 and 4 of the Defamation Act 2013.

The trial took place over four days in February 2023.

The central question was whether Ms Cresswell had proved the “sting of the allegation” – that is, that Mr Hay had violently sexually assaulted her. To succeed, Ms Cresswell had to prove that her allegation was true on a balance of probabilities (more likely than not).

Truth

The truth defence was at the heart of the case. The Judge was satisfied that Ms Cresswell had proved that Mr Hay had violently sexually assaulted her.

There was no forensic evidence. There was no criminal conviction (Mr Hay had not been charged with a criminal offence). At trial, the evidence of the parties was crucial. Both Mr Hay and Ms Cresswell gave evidence and were cross-examined. The Judge, being aware of the challenges faced by complainants giving evidence of sexual abuse, allowed Ms Cresswell to give evidence from behind a screen. The Judge refused to allow “irrelevant” questions that had the potential for causing Ms Cresswell “unnecessary distress and discomfort.”

The Judge assessed the evidence and credibility of Ms Cresswell and Mr Hay.

The Judge found that there were some inconsistencies in the accounts of the assault given by Ms Cresswell between 2010 and 2020. Although there was a “lack of complete consistency”, the Judge “did not attach any significance” to minor variations, given that Ms Cresswell had been drunk at the time and “the victim of a traumatic sexual assault, which occurred rapidly and unexpectedly”. The Judge decided that Ms Cresswell had given “an essentially honest account”.
The Judge dismissed Mr Hay’s argument that Ms Cresswell’s credibility was reduced because she had not made her allegation publicly at the time of the assault. There were “all sorts of reasons why a victim of sexual assault might not want to air that publicly”, including fear of being disbelieved, a disinclination to revisit a traumatic event, internalised shame, concern about a negative backlash – or being sued.
Ms Cresswell’s evidence was not undermined by the fact that Northumbria Police had decided her complaint was “not to be crimed”. The Judge considered the police incident log in detail. The Judge accepted that the officers appeared unsympathetic to Ms Cresswell, and that their approach had been influenced by an early perception that the incident would not lead to a charge or successful prosecution.
By contrast, the Judge found a number of “significantly unsatisfactory aspects” of Mr Hay’s evidence impacted adversely on his credibility. These included that Mr Hay had changed his account: at an early stage of his libel complaint, Mr Hay said that he had only met and danced with Ms Cresswell in the nightclub; but in his witness statement, he said they had left the club together and, as he walked her home, they had a “moment” in which they had “almost kissed”. The Judge found that Mr Hay did not have a convincing explanation of why he had left the nightclub with Ms Cresswell and that he was “notably evasive about his real intentions”.

The Judge was satisfied that Ms Cresswell had proved that Mr Hay had violently sexually assaulted her.

Public interest

The fact that Ms Cresswell succeeded in her defence of truth was enough to lead to judgment in her favour. However, the Judge also considered the public interest defence. The Judge concluded that all three requirements of the defence were met:

Firstly, the publications were on a matter of public interest. Three specific areas of public interest were raised: the prevalence of sexual abuse committed in the tattoo industry (the issue that had become known as “Tattoo MeToo”); the need to protect women from sexual abuse; and the failure to prosecute sexual abuse cases.
Secondly, the Judge was satisfied that Ms Cresswell believed that her publications were in the public interest. Her motivation was not challenged at trial.
Thirdly, the Judge was satisfied, having looked at all the circumstances, that Ms Cresswell reasonably held that belief. Ms Cresswell had not contacted Mr Hay for his comment before publishing, but it would have been “unreasonable” to expect her to do so when she was “writing from her own knowledge of the sexual assault on her”. The tone of her publications was “less than measured”, but this was “hardly surprising”, since Ms Cresswell was “writing about her own experience of a frightening and violent sexual assault”.