False complaints to the police do not amount to defamation

Following on from last months article Defamation and the employers reference: a warning to claimants, we now look at another common scenario which can give rise to misconceived defamation claims “ the complaint to the police.

The starting point is that an allegation of criminal conduct is nearly always prima facie defamatory.  If written it is a libel; if spoken it is a slander.  If the offence alleged is one that carries a prison sentence then a slander is actionable per se (this means it is not necessary to prove damages; they are presumed, as in an action for libel).  However, a Defendant will have a complete defence to a claim if he/she can show that the statement was made on an occasion covered by absolute privilege.

The doctrine of absolute privilege is a relatively straightforward one.  If absolute privilege applies then it makes no difference whether the statement was made maliciously.  This means the protection of the privilege applies if such statements are made recklessly or even where the defendant knows the statement to be false.  There are a limited number of situations where absolute privilege applies, for example, in parliamentary debates and the accurate reporting of court proceedings. Another well-established area in which the defence applies is in connection with judicial proceedings - giving evidence in court and within the context of proceedings.  The logic for this immunity is that parties, witnesses, lawyers and judges should be able to litigate, advocate, adjudge and give evidence freely without fear of a flank attack and becoming involved in costly litigation.  It is an extension of this type of absolute privilege which protects criminal complainants and the policy reasons are much the same; it is important that individuals should not be deterred from making criminal complaints out of fear of being sued for libel if a conviction does not follow.

surprisingly, it was not until the relatively recent case of Westcott v Westcott [2008] EWCA Civ 818 until it was confirmed that this form of privilege applied to complaints made to the police.  In Westscott, Richard Westcott (a Justice of the Peace) sued his daughter-in-law sarah Westcott (a doctor) for making an allegation of assault against him to the police.The assault was alleged to have taken place against the unhappy backdrop of the breakdown of her marriage to Edward Westcott (the Claimants son).sarah and Edward had a young baby boy and sarah was delivering him to her parents-in-laws address (where Edward was staying) as per the contact arrangements.  A heated argument took place between sarah, Edward and Richard.  In a witness statement made to the police sarah stated that Richard lashed out at her and struck the young baby she was holding.In bringing proceedings for libel and slander against sarah, Richard stated that his position as a JP and member of the Family Panel of the Family Proceedings Court had been serious compromised. He also indicated that social services had learnt of the allegation and, without any investigation of the facts, appeared to regard him as someone from whom his grandchild should be protected. Understandably, he said that this caused him particular upset and embarrassment.  No prosecution ensued.

The preliminary issue for the Court of Appeal to determine was whether sarahs complaint to the police was protected by absolute privilege or, as Richard said, only qualified privilege.  The defence of qualified privilege, unlike absolute privilege, is defeated by malice.  Richard stated that sarah had acted maliciously as she had made the allegations knowing them to be false.  The judgment contains a comprehensive review of the development of the principle of absolute privilege in the context of court proceedings and whether the principle extends to complaints to the police.  Lord Justice Ward summarised the problem as follows:-

The authorities recited above [in the judgment] have made it clear that the justification for absolute immunity from suit will depend upon the necessity for the due administration of criminal justice that complaints of alleged criminal conduct should always be capable of being made to the police free from fear that the person accused will subsequently involve the complainant in costly litigation. There is a countervailing public interest in play which is that no-one should have his or her reputation traduced, certainly not without affording him or her a remedy to redress the wrong. A balance has to be struck between these competing demands: is it necessary to clothe the occasion with absolute privilege in which event even the malicious complainant will escape being held to account, or is it enough to allow only the genuine complainant a defence? Put it another way: is it necessary to protect from vexatious litigation those persons making complaint of criminal activity even at the cost of sometimes granting that impunity to malicious and untruthful informants? It is not an easy balance to strike. We must be slow to extend the ambit of immunity

In dismissing the appeal, Ward LJ concluded that the need for individuals to report crimes without fear of suit was overriding:-

"The police cannot investigate a possible crime without the alleged criminal activity coming to their notice. Making an oral complaint is the first step in that process of investigation. In order to have confidence that protection will be afforded, the potential complainant must know in advance of making an approach to the police that her complaint will be immune from a direct or a flank attack. There is no logic in conferring immunity at the end of the process but not from the very beginning of the process. Mr Craig's [Richards barristers] distinction between instigation and investigation is flawed accordingly. In my judgment, any inhibition on the freedom to complain will seriously erode the rigours of the criminal justice system and will be contrary to the public interest. In my judgment immunity must be given from the earliest moment that the criminal justice system becomes involved. It follows that the occasion of the making of both the oral complaint and the subsequent written complaint must be absolutely privileged."

so what recourse is there for those who have been falsely accused of committing criminal offences?  Well, defamation is still an option if the allegations have been made to a third party not involved in the criminal proceedings.  However, often the allegation will have only been made to the police.  In exceptional cases there may be scope for a claim for malicious prosecution.  such claims are normally made against the Crown Prosecution service or the police, but they have succeeded against complainants in circumstances where it has been held that the complainant has procured the prosecution by deliberately manipulating the police/prosecuting authorities into taking a course of action they would otherwise not have taken. In addition to establishing that the defendant had procured the prosecution by effectively initiating it, the claimant will need to show that there was an acquittal, the prosecution caused damage, the defendant acted without reasonable and probable cause and that the defendant acted maliciously.  such claims will be very fact sensitive, as demonstrated by two Court of Appeal cases in 2009 (Hunt v AB [2009] EWCA Civ 1092 and The Ministry of Justice (sued as the Home Office) v scott [2009] EWCA Civ 1215)

The fabrication of criminal complaints and/or knowingly giving false evidence are of course serious criminal offences in their own right.  For various reasons, not least the criminal burden of proof, it does not follow that an acquittal or a discontinued investigation/prosecution automatically means that an allegation has been fabricated. However, if credible evidence exists that an allegation has been fabricated then the police are duty-bound to investigate such a complaint.