| DEFAMATION — Privilege —Absolute privilege — Qualified privilege — Complaint made to police but no subsequent prosecution resulting — Whether complainant entitled to rely upon absolute or qualified privilege
Westcott v Westcott [2008] EWCA Civ 818; [2008] WLR (D) 241
CA: Ward, Sedley and Stanley Burnton LJJ: 15 July 2008
A person who made a complaint to the police, thereby instigating a police investigation which did not lead to a prosecution, was entitled to rely on the defence of absolute privilege if defamation proceedings were subsequently brought.
The Court of Appeal so held when dismissing the appeal of the claimant, Richard Anders Westcott, from a decision of Richard Parkes QC, sitting as a Deputy Judge of the High Court in the Queen’s Bench Division on 29 October 2007, ruling on a preliminary issue that any oral and/or written publication made to the police by the defendant, Sarah Westcott, and sought to be relied upon by the claimant in his defamation proceedings, was protected by absolute privilege and/or immunity from suit.
The judge dismissed the claim with costs. The claimant appealed on the grounds, inter alia, that neither the oral complaint nor the written statement made thereafter should be treated as part of the investigation but as steps to instigate the investigation, and where no prosecution had ensued neither statement enjoyed the protection of absolute privilege, but only of qualified privilege.
WARD LJ said that an early authority as to the question of privilege in such a case was Shufflebottom v Allday (1857) 5 WR 315, but it was far from clear whether the case was considering absolute or qualified privilege, and where public policy in part provided the answer it was the public policy considerations of the 21st and not the 19th century which prevailed. Furthermore, having regard to the test expounded by Drake J in Evans v London Hospital Medical College [1981] 1 WLR 184, viz whether the oral statement made by the defendant and her subsequent written statement could each fairly be said to be part of the process of investigating a crime or possible crime with a view to a prosecution or possible prosecution in respect of the matter being investigated, and applying dicta in Taylor v Serious Fraud Office [1999] 2 AC 177, which authority endorsed such test, absolute privilege applied. The police could not investigate a possible crime without the alleged criminal activity coming to their notice. Making an oral complaint was the first step in that process of investigation. In order to have the confidence that protection would be afforded, the potential complainant had to know in advance of making an approach to the police that her complaint would be immune from a direct or flank attack. There was no logic in conferring immunity at the end of the process but not from the very beginning; and the distinction proposed between instigation and investigation was flawed. Any inhibition on the freedom to complain would be contrary to the public interest, so that immunity had to be given from the earliest moment that the criminal justice system became involved. It followed that the occasion of the making of both the oral complaint and the subsequent written complaint had to be absolutely privileged. Moreover, it was neither illogical that on the one hand there should be immunity for defamatory statements while on the other malice had to be established to succeed in a claim for malicious prosecution, since these were different torts and protecting different public interests; nor did the immunity granted constitute a disproportionate restriction on the right to respect for private life because the necessity to speak freely overrode the sanctity of good reputation.
SEDLEY LJ agreed with both judgments and STANLEY BURNTON LJ gave a judgment concurring with that of WARD LJ.
|
