False complaints to the Police: the witness immunity rule

In Crawford v Jenkins [2014] EWCA Civ 1035, the Claimant had sued the Defendant in false imprisonment and harassment on the basis of allegedly malicious statements made to the Police which had resulted in his arrest and detention.  The course of conduct said to amount to harassment consisted of two text messages sent to him by the Defendant which complained of his actions, and the Defendant’s subsequent statements to the Police.  At first instance, Her Honour Judge Baucher ruled that the Defendant was immune from suit (both in false imprisonment and harassment) owing to the ‘witness immunity’ rule in Westcott v Westcott [2008] EWCA Civ 818.  Having disregarded the statements to the Police, the Judge struck out the remainder of the harassment claim (the two text messages) on the basis that the conduct was reasonable.  The Claimant appealed.

In giving its Judgment, the Court of Appeal provided useful consideration of the application of the immunity rule.  The rule is that no civil suit can be pursued against a person in respect of words spoken in court, even if they are untrue and malicious.  In defamation parlance, this is a category of ‘absolute privilege’.  The Courts have held that it applies not only to evidence given on the stand but also to words said outside court as part of the investigation of crime (including complaints to the police) and also written words that go towards oral evidence, e.g. statements of case and witness statements.  The Courts have recognised that this rule – a matter of policy intended to ensure that parties to litigation can speak freely and to avoid a multiplicity of actions – is in conflict with the wounded individual’s right to legal remedy.  Thus it has been held to apply only where the statement itself is the principal cause of action.  On that basis, it has been held not to apply in respect of malicious prosecution claims, where it is considered to be the abuse of the court’s process that is the cause of the action.

Deciding the present case, the Court ruled that since it was not the Defendant who had falsely imprisoned the Claimant (that being the Police, against whom an action had been settled), that claim could more accurately be described as ‘malicious procurement of imprisonment’.  Since the arrest had not resulted in a prosecution, no process of the court had been invoked – the claim did not involve an abuse of the court’s process and was therefore not analogous with malicious prosecution.  The Claimant had a remedy against the Police in respect of the arrest, and therefore there was no reason for the witness immunity rule to be disapplied.

The case of Roy v Prior [1971] AC 470 which had been advanced for the Claimant, was distinguished.  In that case, the arrest had been brought about by evidence given to the Court upon an application for a bench warrant.  The Court issued the bench warrant and the arrest was affected.  The arrest was technically lawful since it was made by order of the Court.  The Court could not be sued, and therefore, the Claimant would have had no legal remedy had they been unable to sue the applicant of the bench warrant.  Unlike the instant case, this was one of the categories in which it is the abuse of the court’s process that is the cause of action.

In respect of the harassment claim, it was argued on behalf of the Claimant that since the statement to the police was simply evidence by which the course of conduct could be established, the action was not brought on the statements themselves, and it therefore fell outside the scope of the immunity rule. The Court rejected this distinction – since the course of conduct alleged consisted of the making of statements, the claim was indeed based on those statements.  It was also submitted for the Claimant that since the Protection from Harassment Act 1997 contained an express provision regarding a course of conduct pursued for the purpose of preventing or detecting crime (at section 1(3)(a)), that that should be the limit of any defence of that nature to such a claim.  The Court rejected this suggestion – the defence at section 1(3)(a) of the Act is a wider one, not limited to statements, and it cannot therefore be explained as a statutory substitute for the immunity rule.  There is no reason why the immunity rule should not apply in full to claims under the 1997 Act.

The policy of the immunity rule is equally applicable to harassment claims as to those in defamation.

In the context of the case, the two text messages alone, whilst arguably a course of conduct, could not possibly amount to harassment.  The appeal was dismissed