West Law Report

WESTCOTT v WESTCOTT

Posted in Westlaw Reports by mrkooenglish on July 23, 2008

Court of Appeal (Civil Division) Ward, Sedley, Stanley Burnton LJJ July 15, 2008 Absolute privilege – Complaints – Police – Slander – Protection for initial complaint to police Court of Appeal (Civil Division) Ward, Sedley, Stanley Burnton LJJ July 15, 2008 Absolute privilege – Complaints – Police – Slander – Protection for initial complaint to police

Last Updated: 6:43PM BST 23 Jul 2008

FACTS

The appellant (W) appealed against a decision ([2007] EWHC 2501) that an oral complaint and written statement made by the respondent (S) were protected by absolute privilege. After a heated family argument, S had telephoned the police and claimed that W, her father-in-law, had assaulted her and her baby. She confirmed those allegations in a written statement. The police did not consider that the complaint warranted further action, and W sued S for defamation. The judge, on a preliminary issue, made the decision challenged. W argued that neither the oral complaint nor the written statement should be treated as part of the police’s investigation but rather as steps taken to instigate that investigation, so that neither enjoyed the protection of absolute privilege.

ISSUE

Whether an oral complaint and written statement made by S were protected by absolute privilege.

HELD (appeal dismissed)

Both the oral complaint and the written statement were protected by absolute privilege. The answer to the question posed in the instant case was to be found in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177. Taylor established that immunity for out-of-court statements was not confined to persons who were subsequently called as witnesses. The policy being to enable people to speak freely, without inhibition and without fear of being sued, the person in question had to know at the time he spoke whether or not the immunity would attach. As society expected that criminal activity would be reported and, when reported, investigated and, when appropriate, prosecuted, all those who participated in a criminal investigation were entitled to the benefit of absolute privilege in respect of statements which they made. That applied whether they were informants, investigators or prosecutors. The answer to the argument that immunity should not protect a malicious informer had been tellingly given by Lord Simon of Glaisdale in D v National Society for the Prevention of Cruelty to Children (NSPCC) [1978] AC 171 . He had stated that although the immunity could be abused, the balance of public interest lay in generally respecting it. The test proposed by Drake J. in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 had received endorsement from their Lordships in Taylor. Thus the question was whether S’s oral and written statements could each fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or possible prosecution in respect of the matter being investigated. 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. In order to have confidence that protection would be afforded, the potential complainant had to know in advance of making an approach to the police that his 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 its very beginning, and W’s distinction between instigation and investigation was flawed accordingly. Any inhibition on the freedom to complain would seriously erode the rigours of the criminal justice system and would be contrary to the public interest. Immunity had to be given from the earliest moment that the criminal justice system became involved, Taylor, D v NSPCC and Evans applied.

Kenneth Craig (instructed by John Stallard & Co, Worcester) for the appellant. Nicholas O’Brien (instructed by BP Collins, Gerrards Cross) for the respondent.

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