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| || ||Neutral Citation Number:  EWCA Civ 102|
| || ||Case No: A2/2002/0739/QBENF|
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
(HHJ Richard Walker QC)
| || ||Royal Courts of Justice|
London, WC2A 2LL
| || ||13th February 2003|
B e f o r e :
LORD JUSTICE SIMON BROWN
(Vice-President of the Court of Appeal Civil Division)
LORD JUSTICE SEDLEY
MR JUSTICE JACOB
| || PETER HALFORD||Appellant|
| ||- and -|
| ||(1) CHIEF CONSTABLE OF HAMPSHIRE CONSTABULARY|
(2) TIMOTHY ERIC CURTIS
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Paul McCormick Esq (instructed by Messrs O'Hara Rice Scholes) for the Appellant
John Beggs Esq (instructed by Messrs Barlow Lyde & Gilbert) for the Respondent
HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Simon Brown:
- This is the claimant's appeal in libel proceedings against the order of His Honour Judge Richard Walker, sitting as a judge of the High Court on 25 March 2002, entering judgment for the defendants with costs consequent upon rulings made (i) that the two publications complained of were published on occasions of qualified privilege and (ii) that there was no sufficient evidence upon which a jury properly directed could properly find that the second defendant (the publisher of the words complained of) was actuated by malice.
- The rulings and order followed a five-day hearing before Judge Walker and a jury the previous week, a hearing which itself followed on from an abortive hearing the week before that which had ended, for reasons immaterial to the present appeal, in the jury's discharge. The detailed reasons for the rulings and order were given in a very full and careful reserved judgment on 27 March 2002.
- By this appeal, brought with the permission of Mummery LJ, the appellant seeks to challenge both the judge's rulings. Mr McCormick on his behalf submits first that the judge should have found that the words complained of went beyond the scope of publications attracting qualified privilege, and secondly that the judge, in reaching his conclusion on the issue of malice, took it upon himself to resolve questions of fact which could only properly be decided by the jury and in the result usurped the jury's function.
- The principles of law governing the issues arising on this appeal are not in doubt or dispute; they are now well established. What is in dispute is the judge's application of those principles on the particular facts of this case.
- With that briefest of introductions, let me now turn to the facts which, although they are before us in the greatest profusion, and not a little disorder, I shall endeavour to summarise as shortly and cogently as may be.
- The appellant is a senior Education Welfare Officer ("EWO") employed by the Hampshire County Council. The job has two main elements, child protection and education welfare. In 1995 he married a woman who already had three children by her previous marriage to a Mr K: Sarah (born 25 March 1982); Paul (born 11 October 1984); and Rosamund (born 1 June 1987). Together they then had two more children, Charles (born on 14 October 1995) and Lawrence (born 14 November 1996). All lived together in a house at Fareham. Undoubtedly there were considerable tensions within the household.
- The second respondent, Detective Sergeant Curtis, was at the material time based at Fareham police station. On 18 October 1996 he received a complaint that during the previous evening (17 October) the appellant had assaulted his stepson Paul (then aged just 12) causing him actual bodily harm. Paul had first made the allegation on his arrival (late) at school the following morning. Mr Jackson, his teacher, noticed bruising on his face. Paul told him that the appellant had beaten him up. Mr Jackson immediately telephoned Social Services. Paul made a statement (to other police officers) saying that he had intervened to protect his sister, Sarah (who had scratched the appellant's left hand when he grabbed her by the T-shirt), and that the appellant had then put both hands around his neck and lifted him into the air, then thrown him back on his bed so that his head hit the wooden headboard.
- On the evening of 18 October DS Curtis saw the appellant at the police station and, having arrested him, interviewed him under caution before releasing him on bail. At interview the appellant denied the assault, denied indeed ever having hit any of the children. On 19 October DS Curtis took statements from Mrs Halford and Sarah, and on 22 October from Mr Jackson.
- On 25 October DS Curtis wrote to the local police surgeon, Dr Webb:
"Please find enclosed a copy of the witness statement [Mr Jackson's statement] which best describes the bruising on the victim's face. I would appreciate your opinion on the possible age of the injury. I accept that you may feel that there is insufficient detail available to you upon which to base a finding. If you have any questions regarding this request or would like to view any other documentation in this case to assist you, please feel free to contact me."
A copy of Paul's statement was also enclosed.
- On 9 November 1996 Dr Webb replied to DS Curtis saying:
"At this stage [only some 12 hours after the alleged assault] I would have expected any bruising to be red, possibly beginning to turn blue. If as described by Mr Jackson it was yellowing in the middle and very dark on the edges I would have considered it to be three-four days old. Paul describes other ten pence-size bruises in either side of his face which Mr Jackson does not mention. He also mentions quite traumatic treatment of his neck which one would have expected to leave some signs of redness at least. Furthermore the treatment Paul describes to his head would almost certainly have left some tenderness which Mr Jackson could not detect. To summarise, I feel that there are quite considerable differences between what Paul describes as happening and the physical signs noticed by Mr Jackson"
- Meantime, on 29 October 1996, there took place the first of a series of child protection conferences ("CPC") with regard to the appellant's three step-children. Reports had already been prepared by Fareham Social Services and these were circulated. The conference was attended by twelve people including the appellant, Mr and Mrs K and DS Curtis. The appellant arrived late. The outcome of that CPC was communicated to the appellant by letter dated 20 November 1996. It had been decided to place all three children on the child protection register. DS Curtis had in fact favoured putting only Rosamund on the register.
- On 26 November 1996 there was a meeting between Mr Roy Ward, the council's Assistant Principal EWO, Peta Lack, the council's senior personnel officer, and the appellant. The meeting was held to give the appellant the opportunity to make an initial response to the findings of the CPC. That response was invited "prior to the instigation of an investigation to determine whether suspension of Mr Halford is appropriate and whether any formal action under the disciplinary procedure is required". The notes of the meeting further record:
"The police have reported that their investigation is complete. The case has been referred to the Crown Prosecution Service. Peter remains on bail until 11 December 1996."
- That same day, 26 November 1996, the appellant wrote to Pauline Owen, the Service Manager of the relevant Social Services Department who had chaired the CPC:
"Mrs Halford and I wish to formally appeal and complain about the way in which the child protection conference was conducted and the way in which the investigation of the alleged abuse was carried out by the Social Services Department. In the case of the police investigation, on the contrary, my wife and I believe this has been carried out in a professional and sensitive manner."
- DS Curtis had sent the crime file to the CPS on 25 November 1996. He specifically drew the CPS's attention to Dr Webb's letter "which clearly has an impact on the evidence". His "guide to the prosecution case" further recorded that during his interview with the appellant he had "examine[d] his hands and there are no scratches on the left hand, as alleged by Paul".
- On 17 December 1996 the CPS replied to DS Curtis:
"I have considered the evidence submitted in this case. I will say at the outset that I do not consider a prosecution would be successful in respect of any allegation of assault by Mr Halford upon Paul. The problem as I know you already appreciate is the massive conflicts in the evidence. One might expect a conflict between that of Paul the victim and Peter Halford the alleged offender over what happened, but the most troubling matter is that the description of events by Paul and Sarah are so different as to make it appear that they are talking about entirely different incidents. In addition there is no physical evidence support for the contention that he was held by the neck and there are then the views expressed by Dr Webb that he could find no support for the principal allegation made by Paul in the context of the injuries described by Trevor Jackson. It is of course extremely troubling when one can see that clearly some violence is occurring within this family and it is to be hoped that the proper authorities can address those subjects in the family context. Nevertheless there is no scope evidentially for a prosecution."
- On 19 December 1996 DS Curtis wrote to the appellant:
"Further to my telephone conversation with you, this letter is confirmation that after careful consideration it has been decided that no further action will be taken against you.
However, if further significant evidence becomes available at a later date, the decision may be reconsidered and the advice of the Crown Prosecution Service sought."
As the letter indicates, DS Curtis had already by then telephoned the appellant. This had been to set his mind at rest.
- On 28 January 1997 Peta Lack telephoned DS Curtis with regard to the appellant. Ms Lack's note of the conversation, although not verbatim, is accepted by the respondents to contain the gist of what DS Curtis said. Since this is the first of the two publications complained of in these proceedings I must set it out verbatim:
"Case provided a total conflict of evidence and case not proven.
Does not have concerns about EWO [Education Welfare Officer] role but issues re child prot [Protection] work because:
He observed his behaviour at CP Conference [Child Protection Conference] mitigation considerable stress but seemed to demonstrate an inability to grasp what was required at Child Protection Conference.
DS Curtis was surprised at his behaviour and PH [Peter Halford] tried to offer info [information] that he would know was inadmissible. Demonstrated a personal vendetta against children's father and was reminded by DS Curtis (prior to) and chair (during) about the purpose of the Conference.
DS Curtis sees conflict between PH [Peter Halford] and local Social Services Dept [Department] and questions if issue of conflict is between Social Services Dept or the local Fare + Gosp [Fareham & Gosport] Team - if latter, relocation could solve problem? and to what extent this affects his professional image and rep [reputation] of HCC? [Hampshire County Council]
PH [Peter Halford] (deleted) admitted that conflict at home and had a drink on the way home. DC [sic] Curtis also smelt drink on his breath on after of conference. He was late. (was this dutch courage or had he had a drink?)
'Is his method of conflict mgt [management] avoidance? If his prof [professional] role is re the welfare of children and he cannot cope at home? Is alcohol an issue? Lack of knowledge about CP [Child Protection] procedures?"
- Also on 28 January 1997 there was a further CPC with regard to the three children. The decision then taken was that Rosamund should remain on the register but the other two children should be removed from it. Both Sarah and Paul had in fact been placed with foster parents since 19 October.
- On 30 January 1997 Roy Ward wrote to the appellant in these terms:
As you are aware, following the decision of the Child Protection Conference on 29 October 1996 to place your three step-children namely Sarah [K], Paul [K] Rosamund [K] on the Child Protection Register we have been conducting an investigation.
You may remember that as part of our investigations we met with Peta Lack, Senior Personnel Officer on 26th November 1996 to give you the opportunity to make an initial response to the findings in relation to an incident which occurred on 17th October 1996. I understand that you subsequently provided a statement dated 2nd December 1996 to Peta.
Since then arrangements have been made for you to continue with your duties excluding involvement with any child protection maters. These arrangements were confirmed in writing on 26th November 1996.
However, following the Child Protection review meeting on 28th January 1997 when it was decided that Rosamund should remain on the Child Protection Register, it has been decided to suspend you from your duties as Education Welfare Team Manager with immediate effect pending further investigations and a formal disciplinary hearing under stage III of the disciplinary procedure. You will remain on full pay during the period of suspension.
You should not attend work whilst you are suspended and I hope that this will be for as short a period as possible pending the outcome of the disciplinary hearing, the date of which will be notified to you as soon as possible."
- On the evening of 5 February 1997 the appellant and his wife took Paul out from his foster parents' home to the home of a friend, David Stott, another EWO, for Paul to make a statement retracting his allegation against the appellant. He wanted to return to live with his mother.
- On 14 February 1997 DS Curtis attended a meeting with two of the council social workers concerned to discuss the consequences of Paul's different account of the incident and of his expressed wish to return home.
- On 17 March 1997 Ms McKenna, the Education Personnel Adviser, wrote to the appellant noting that on 30 January he had been suspended from his duties pending a formal disciplinary hearing and continuing:
"Following the decision to suspend you from duty a further incident was reported to Roy Ward. This relates to you taking your stepson out of care to a colleague's house and requesting that a colleague take a statement from your stepson. Aside from the difficulties that this could create for your colleague and the emotional upset this could cause for your stepson, this is contrary to child protection procedures as you should have obtained permission from Social Services in order to do this."
The letter continued:
"The hearing [at that time proposed to take place 27 March 1997] will consider how the decision of the CPC and Review meeting affects both your ability to perform the duties for which you are employed and the ability of Hampshire County Council to continue to employ you. It will also consider the disregard you showed for procedure when you took your stepson to the home of another member of Education Welfare Service in order for a statement to be taken."
- On 21 March 1997 Peta Lack (by then Mrs Holt) wrote to DS Curtis as follows:
"Re: Peter Halford (23-5-54)
You may recall our conversations regarding the above named, latterly on 28 January 1997, regarding an incident alleged to have occurred on 17 October 1996 involving his step-son Paul [K].
As you are aware Peter Halford is employed by this Authority and our investigations are continuing.
I understand from my conversation with you that the case provided a total conflict of evidence and therefore the case was not proven. My understanding from you is that the case remains 'open'. I would be grateful if you could provide written confirmation of these points as soon as possible, but in any case no later than 4 April 1997."
- DS Curtis replied to that letter on 4 April 1997. This is the second of the two publications complained of. The letter reads:
""Thank you for your letter of March 21st 1997 in relation to Mr Peter HALFORD.
I can confirm that the crime record of events that allegedly occurred at 31 The Scimitars, Hillhead on October 17th 1996 are still held on file at Fareham Police Station. Whilst this matter is no longer under current investigation, it is regarded as an undetected crime, not a deleted matter. You will be aware that the views of the Crown Prosecution Service were sought in this case and a decision not to proceed with a prosecution was made because of an apparent conflict in the witnesses accounts. The matter remains unresolved."
- The disciplinary proceedings taken against the appellant took place over two days, 6 and 12 June 1997. The case against the appellant was presented by Mr John Heath, the Principal EWO, assisted by Ms McKenna; the appellant was represented by Mr McCormick (counsel appearing on this appeal) who had already been acting for him for some months. A detailed Hampshire County Council Management Report had been prepared in April 1997. Included in the description of the "Sequence of Events" is:
"(iv) the police arrested Peter and following investigations he was released on bail. In the police terms the case was 'not proven' and the file remains 'open'."
The report's "Conclusions" were as follows:
"i Rosamund remains on the Child Protection Register.
ii Paul was taken to the home of David Stott without the knowledge of Social Services.
iii The police have retained an 'open file' on the incident of 17 October 1996.
iv In Peter's role as team manager he is required to ensure the protection and welfare of children. This fundamental requirement is wholly incompatible with the fact that one of Peter's own step children is on the Child Protection Register.
v Peter, in his role as team manager is required to represent the Director of Education and advise others at multi-agency meetings. The fact that Rosamund remains on the register and is known to be on the register is destructive to the professional credibility of Peter Halford and the Education Welfare service."
The report recommended that the appellant be dismissed from his role of team manager with the Education Welfare Service.
- On 8 May 1997 a list of 32 questions to be put to the appellant was prepared by those presenting the disciplinary case against him. The final question was:
"32 Would you employ someone who was known to have an unresolved allegation of assault against a child? By that I mean an open police file?"
- On 4 June 1997, two days before the hearing, Ms McKenna sent a memorandum to Mr Heath:
"This is the case of the EWO whose child is on the CP register and the police have retained an open file. It's going to be a messy one inasmuch as (1) Peter Halford is seeking a judicial review against the Social Services decision [such proceedings had indeed been issued on 28 April 1997]. (2) He is also instigating a libel action against the police because they advised me that the file remains open. …"
- The writ in this action was in fact issued on 6 June 1997, the first day of the hearing. It complained of the letter of 4 April 1997; the complaint about the telephone conversation of 28 January 1997 was not added until 22 December 2000.
- The disciplinary panel in the event decided not to take disciplinary action against the appellant and accordingly concluded that he should be reinstated in his post of Education Welfare team manager. His return to work, however, was to be phased so that he would not represent the Department in child protection matters until the end of October 1997. That decision was communicated to him initially by telephone late on 12 June 1997 and confirmed by letter dated 17 June.
- Although, as stated, the appellant eventually complained also of the telephone conversation, his main complaint throughout has been of the letter of 4 April. As to this he pleaded that:
"In their natural and ordinary meaning the said words meant and were understood to mean that the plaintiff had committed a criminal offence and/or was believed by the police to have done so and/or was liable to be or stood at significant risk of being prosecuted in respect of the same in the future."
Innuendo meanings were also pleaded, but they carry the matter no further.
- The defendants denied that the words bore any defamatory meaning and asserted that their natural and ordinary meaning was that:
"(i) there had been a police investigation into allegations by Paul K that the claimant had assaulted him;
(ii) the evidence obtained by that police investigation was sent to the CPS who determined that (pursuant to their statutory duty under the Prosecution of Offenders Act 1985) there was insufficient evidence to prosecute because of conflicts in the witnesses' accounts;
(iii) the police file was in those circumstances, and pursuant to standard Force practice, classified as 'undetected'."
- By way of particulars the defendants pleaded:
"The first defendant Force operated a practice whereby an allegation recorded in a Crime Report was, following investigation, classified as an 'undetected crime' until a criminal is 'detected' or the Report is deleted from the system if the investigation reveals that there is no crime to be detected; accordingly pursuant to the first defendant Force's said practice, the reported crime was classified as 'undetected', rather than 'detected' or 'deleted'."
The defendants also asserted that the occasions of publication were occasions of qualified privilege.
- The appellant in reply denied that qualified privilege attached to the publications and pleaded in the alternative that the words were published maliciously. No fewer than 28 paragraphs occupying six pages were pleaded by way of particulars of malice. The judge below rightly characterised them as "lengthy and somewhat diffuse". In argument before us Mr McCormick suggests that they really come down only to some six heads of complaint.
- Evidence at the hearing was given at very considerable length by the appellant and DS Curtis. The appellant called Roy Ward. The respondents called, in addition to DS Curtis, Mr Heath. It would be quite impracticable to attempt in this judgment a full account of this evidence; I shall refer to only a few very brief parts of it.
- At the conclusion of the evidence the respondents invited the judge to give rulings both on qualified privilege and on malice. Full written and oral submissions were advanced by both sides. The judge, having in his judgment set out the applicable law at considerable length, reminded himself as he turned to the evidence of certain important principles: one that he "must be very careful not to usurp the function of the jury as the fact finding forum"; another that he must remember May LJ's warning in Alexander (see paragraph 43 below) "about the risks of taking the case away from the jury if there were then to be a successful appeal". This particular judge, I may point out, is vastly experienced in libel law and practice.
- As already indicated, the appellant now appeals against both his rulings. Logically I must deal with qualified privilege first, although much the greater part of the appellant's argument was devoted to the issue of malice.
- The judge below referred to various of the leading authorities on qualified privilege and concluded at paragraph 19 of his judgment that both the telephone conversation and the letter "constitute clear examples of qualified privilege". He repeated, at paragraph 79, that "these two occasions of publication were classic occasions of qualified privilege". Mr McCormick's attempts to argue the contrary the judge described variously as "brave" and "ingenious". The argument is nevertheless repeated on this appeal. Essentially it comes to this. True, Mr McCormick is bound to acknowledge on the highest authority, privilege attaches to the occasion of the publication, not to the publication itself. But, he submits, the occasion needs to be defined with care and here it was no more than an invitation to DS Curtis to indicate what was the state of the criminal investigation. By the time of the letter, Mr McCormick argues, all that DS Curtis could say within the protection of qualified privilege was that the police investigation had finished and that there had been no prosecution. To say in addition that "the matter remains unresolved", Mr McCormick submits, fell outside the defence. So too, he submits, to have said in the telephone conversation, as DS Curtis plainly did, more than that the "case provided a total conflict of evidence" was gratuitous, damaging and outside the defence.
- The argument is in my judgment hopeless. As Lord Diplock said in Horrocks -v- Lowe  AC 135, 151, the classic authority on malice but highly relevant too on the question of qualified privilege:
"The exception [to the rule he had just enunciated that in certain circumstances to succeed in proving malice the plaintiff must show affirmatively that the defendant did not believe his publication to be true or was indifferent to its truth or falsity] is where what is published incorporates defamatory matter that is not really necessary to the fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded. Logically it might be said that such irrelevant matter falls outside the privilege altogether. But if this were so it would involve the application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion; whereas, as everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not … So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded. As Lord Dunedin pointed out in Adam -v- Ward  AC 309, 326-237, the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn. As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive. Here, too, judges and juries should be slow to draw this inference."
- In the light of that authoritative statement of the law, I think it unnecessary to say any more with regard Mr McCormick's argument. It seems to me nothing short of absurd to suggest that the communications made here by DS Curtis to Ms Lack on behalf of those concerned both with the care of the appellant's step-children and with his suitability for continued employment as an EWO were not made on occasions of qualified privilege. Manifestly they were. I would add only that nothing said by DS Curtis on the occasion of either publication could in my judgment reasonably be thought irrelevant. Rather, assuming always that he was acting honestly, the officer would have been failing in his duty if he had not responded to the inquiries made of him as fully and as candidly as he did.
- The difficulty of establishing malice is in all cases very considerable. As Lord Diplock said in Horrocks -v- Lowe at p151:
"Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty … disliked the person who he defamed … It is only where his desire to comply with the relevant duty … plays no significant part in his motives for publishing what he believes to be true that 'express malice' can properly be found."
- Elsewhere in his speech Lord Diplock explains that malice can be found on either of two bases: first, if the plaintiff shows affirmatively that the defendant did not believe his statement to be true or was indifferent to its truth or falsity (ie, that he lacked "honest belief"); secondly, if it is proved that the defendant's dominant motive is not a desire to perform the relevant duty of communicating what he honestly believes to be the truth, but is rather "to give vent to his personal spite or ill-will towards the person he defames". The appellant here seeks to put his case in both ways. The emphasis, however, is put on the first. Realistically, to my mind, his case must stand or fall on that.
- In order to understand that case it is helpful first to stand back from the relentless mass of fact and submission and begin by considering just the letter itself, its suggested meaning, and how the appellant seeks to advance his central contention: that DS Curtis, when writing it, did not believe it to be true. That, of course, is the critical question: did DS Curtis believe in the truth of what he intended to convey?
- It is convenient at this stage to refer to what undoubtedly now is the leading case with regard to withdrawing the issue of malice from the jury at the conclusion of the evidence, this court's decision in Alexander -v- Arts Council of Wales  1 WRL 1840. The judge below cited from the judgments there at some length. I shall not do so but rather for the most part take them as read. The importance of Alexander in the present context is considerable and nothing that I say in my judgment is intended in any way to qualify or detract from anything there said. May LJ in paragraph 42 identified the all-important issue:
"42. The critical question for the judge was whether there was any evidence, taken at its highest, on which a jury properly directed could properly infer that the second defendant subjectively did not honestly believe that what she intended to say in the publications relied on was true."
- May LJ had cited, and it is perhaps helpful if I too cite, what Hirst LJ said in Loveless -v- Earl  EMLR 530, 538-539:
"[I]t is very important to contrast the test for meaning on the one hand and test for malice on the other. Meaning is an objective test entirely independent of the defendant's state of mind or intention. Malice is a subjective test entirely dependent upon the defendant's state of mind and intention. Thus, in a case where words are ultimately held objectively to bear meaning A if the defendant subjectively intended not meaning A and honestly believed meaning B to be true, then the plaintiff case on malice would be likely to fail."
- Mr McCormick accordingly recognises, as he must, that the critical question arising as to meaning is: what did DS Curtis intend to convey by the words he used? He argues, however, that the jury's decision as to this is likely to be influenced by what they first decide is the objective meaning of the words used. If objectively the words are found to mean A it is the less likely that the defendant intended them to mean B. So far as it goes, the point is obviously a good one, but in my judgment it goes nowhere near as far as Mr McCormick submits. His argument is that because the judge's task with regard to the objective meaning of the words complained of is confined to ruling only on what meanings they are capable of bearing (leaving it to the jury to decide which of such meanings they do bear) the judge will never be in a position to decide by reference to the objective meaning of the words the likelihood of the defendant having in fact meant what he says he meant by them. The argument proves altogether too much. Not least it is inconsistent with this court's approach in Alexander.
- The judge below, I may note at this point, dealt with the objective meaning of the letter of 4 April 1997 thus:
"I have not yet been specifically invited to rule on meanings … but it is perhaps incumbent upon me to give a provisional indication on the meaning of the letter because in my judgment Mr McCormick has pleaded the meaning of the letter too high but [the defendant] has pleaded it too low in his Lucas Box particulars. But I shall approach the present application for a ruling on malice on the basis that the words of the letter are capable of the objective meaning, whether natural and ordinary or innuendo, that there are some grounds to suspect Mr Halford of having assaulted his step-son, Paul."
- Mr McCormick vigorously criticises that approach. He does so not only for the reason already given but because he contends that the objective and the subjective meaning of the words used here are the same and they are these: "case not proven" equals "open file" equals "undetected crime" equals "the matter remains unresolved". All of these expressions, Mr McCormick submits, mean the same thing and that meaning is: "I believe you are guilty but I cannot prove it".
- The judge had no option, submits Mr McCormick, but to accept at the very least that this is an objective meaning which the words are capable of bearing and accordingly that the jury would have been entitled to conclude that this is what DS Curtis in fact meant by them. That is stage 1 of the appellant's case and it is critical to his argument. I shall return to it later. Stage 2 addresses DS Curtis's state of mind, his actual belief at the time of the communication. As to this, Mr McCormick relies on various parts of the evidence, three in particular, in support of his contention that DS Curtis believed the appellant wholly innocent. First was certain evidence given by Roy Ward, summarised in the following passage:
"A: I assumed absolutely and I still believe that the incident did not happen as was related by Paul to DS Curtis. There may have been an incident but certainly not that which was related.
Q: What did you conclude about what was in Sergeant Curtis's mind from his behaviour to you?
A: He definitely did not believe that that incident happened; certainly not as described to him by Paul." (note the "as was related by Paul" and "as described")
- Secondly, the appellant relies upon DS Curtis's own evidence as to what he believed:
"A: I don't think the conflict caused me to think that this is a whole load of rubbish. Certainly something happened that night …
Q: I am talking about the allegation of criminal assault occasioning actual bodily harm … By the time you got to writing to Dr Webb did you actually believe it yourself in your own mind and heart or not?
A: … I am pointing out to Dr Webb … things that undermined the assault allegation as detailed, so maybe I don't believe it at that stage when I am writing to Dr Webb." (note the "as detailed")
- Thirdly, Mr McCormick relies upon what DS Curtis told the appellant at the police station on 6 November 1996 when he was answering to his bail, namely "This case is a waste of public money. This case is going nowhere." DS Curtis accepted that he may well have said "This case is going nowhere". Whether or not he also described it as a waste of public money (which he disputes) seems to me in those circumstances immaterial.
- For my part I am entirely content to accept that DS Curtis may have regarded the appellant as not guilty of assault and certainly not guilty of an offence committed in the way described by Paul. Where, however, does that take the appellant's case on malice? An important question might be thought to arise at this point. If, as Mr McCormick is at such pains to establish, DS Curtis truly thought the appellant to be innocent of any wrong-doing, why then would he want by his letter to suggest the contrary: to convey the meaning which the appellant says the letter bears on its face, namely that DS Curtis in fact believed him guilty but was unable to prove it? It seems a bizarre suggestion. Nevertheless, submits Mr McCormick, the jury were entitled to conclude that the Detective Sergeant was lying specifically in order to get the appellant sacked from his job; was, indeed, maliciously co-operating with the county council in an attempt to strengthen the disciplinary case against him.
- Asked why the officer should be engaged in so outrageous a scheme, Mr McCormick says that he does not need to prove any motive for it; rather, the allegation of malice on this basis is made good simply by establishing (a) that DS Curtis intended to convey the meaning that he thought the appellant guilty and (b) that he in fact believed him innocent. For good measure, however, and in any event as the alternative basis upon which the case on malice is put, he submits that DS Curtis's dominant motive must have been spite or dislike or general ill-will towards the appellant. Who knows, says Mr McCormick, what underlying reason there was for such ill-will. Maybe, he surmises, there was simply a personality clash between the two men.
- I come at this stage to the final additional piece of evidence I need to refer to, one upon which the appellant places much reliance. On 11 December 1996, another occasion when the appellant was answering to his bail at the police station, he alleges that DS Curtis said to him: "You are very lucky not to be prosecuted". When the appellant responded that Paul had invented the allegations against him, DS Curtis is said to have replied: "If you believe Paul would make up a story like that, you should not have a job working with children - you should be a motor mechanic."
- Put aside for present purposes that DS Curtis denied saying any such thing; put aside that this allegation was not raised against him until four years later when it first surfaced in the Amended Reply of December 2000; put aside the striking contrast between grossly offensive and unprofessional conduct of the sort here suggested and the "professional and sensitive" police investigation to which the appellant was referring in his letter of 26 November 1996 (see paragraph 13 above), not to mention DS Curtis's consideration at about the same time in giving the appellant the earliest possible notification that, following consultation with the CPS, no further action was to be taken against him (see paragraph 16 above). This incident, the alleged offensive remarks of 11 December 1996, submits Mr McCormick, was evidence capable of belief by the jury and, even standing alone, was evidence from which they could reasonably conclude that DS Curtis had been acting maliciously in his communications with the county council.
- The judge below described this as "the one matter about which there is a direct conflict of evidence and which might be a singular particular of malice". He said of it "this is potentially a conflict of evidence which could be said to be classically the province of the jury rather than the judge" and then asked himself "but is it sufficient to make it incumbent on me to conclude that on this very short issue I must refuse the defendants' application and leave the issue of malice to the jury?" Even assuming, as he felt he must (because of the need to take the evidence of malice at its highest), that the jury would conclude that DS Curtis had on that particular occasion conducted himself in that manner, the judge decided that that would still not entitle the jury to regard DS Curtis as having had the dominant motive of harming the appellant. Rather they would have been bound to reject the plea of malice. "Any other verdict would be perverse".
- I said in paragraph 48 above that I would return to the meaning which Mr McCormick invites us to put upon the words of the letter, namely "I believe you are guilty but I cannot prove it". For my part I would unhesitatingly decline the invitation. Indeed, I regard the words as wholly incapable of bearing that meaning. The letter said plainly that the matter was "no longer under current investigation" and that a decision had been taken "not to proceed with a prosecution" (because of the evidential conflict). To say in addition that the complaint remains "open" or "not proven" or "unresolved" is no more nor less than the fact. By no means is it an assertion that the person accused is guilty. It says no more than that he may be guilty, he may be innocent, the matter remains unproved either way. Or, as the judge below put it: "there are some grounds to suspect" the appellant of having assaulted Paul. Now, of course, if the presumption of innocence applied in full measure with regard to publications of this nature that might present a difficulty for the defendants: ordinarily, no doubt, it is defamatory to say of someone that he may not be innocent. But the publications here complained of were being communicated to the county council because the officer was plainly under a duty to tell the authority fully and frankly just what the position was. If, as was the case, there remained a real possibility that the appellant had in fact assaulted his step-son (even if not in the way described by the boy), then for my part I would regard it as misleading and wrong to have done what Mr McCormick submits DS Curtis was bound to do: treat the case as closed and the appellant as wholly exonerated of any wrong-doing. In the sensitive field of child care, a field in which all too often tragic errors have been allowed to occur in the past, candour is to be encouraged. If doubts and suspicions exist, they should be acknowledged, not stifled through fear of a libel action.
- This conclusion in my judgment destroys the appellant's entire case on malice, at least in so far as it turns upon whether or not the officer had an honest belief in what he was endeavouring to say. It is suggested that this court, in the absence of any respondent's notice as to meaning, cannot decide for itself that the appellant's central contention as to the ordinary meaning of the words used is misconceived. I respectfully disagree. Let me in this connection refer to what May LJ said in paragraph 41 of his judgment in Alexander.
"In my judgment, the claimant's case on malice is an unsound and artificial one, forensically constructed without any proper evidential basis. The artificiality starts with the meaning of the publications for which the complainant contends. Although the judge decided, with evident lack of enthusiasm, … that the terms of the publications, their meanings and whether they were defamatory should be left to the jury, I am far from convinced that this was a correct decision. [Counsel for the appellant] correctly points out that this part of the judge's decision is not subject to appeal. But it is necessary to explain briefly how, in my view, this contributes to the artificiality of the claimant's case on malice … The fact that the judge was persuaded to assume that this was its meaning contributed to the artificial submission that the second defendant may have intended that meaning and that, if she did, she knew that it was untrue."
- In my judgment the present case yields nothing to Alexander in its unsoundness, artificiality, and having been "forensically constructed without any proper evidential basis".
- As for the other limb of the appellant's case on malice, the contention that even assuming that DS Curtis honestly believed in the truth of what he was endeavouring to say he was nevertheless saying it merely "to give vent to his personal spite or ill-will towards" the appellant, his duty to communicate the true facts "play[ing] no significant part in his motives" (see the citations from Horrocks -v- Lowe set out in paragraph 39 and 40 above), this case too I regard as wholly unsustainable on any possible view of the facts. The judge below was quite right to regard the suggested abuse of 11 December 1996 as "too fragile a foundation" on which to support the "entire edifice" of the appellant's case on spite. I too conclude that no jury on the evidence given in this case could properly have returned a verdict in the appellant's favour on the issue of malice. To have done so would indeed have been perverse.
- In his arguments before this court (which extended over a whole day in addition to three written skeleton arguments previously submitted) Mr McCormick identified what he called "three killer points" in his case: first, the meaning of the words used; secondly, the evidence pointing to DS Curtis's belief in the appellant's innocence (which I have sought to summarise in paragraph 47-49 above); and thirdly, the incident on 11 December which, he suggests, left "a classic conflict of evidence for the jury" and could itself have supported a verdict based on malice. I have now dealt with each of these, the latter on the same basis as the judge below, namely that, even assuming that the appellant's version (however improbable) is to be preferred, it could not support a finding of malice. I think it unnecessary to lengthen this judgment by further detailed consideration of the myriad other points sought to be advanced on the appeal, whether with regard to the telephone conversation, the letter or the various other suggested pointers towards malice. As to all of this I content myself with commending to any interested reader the very detailed and conscientious refutation of all these many arguments undertaken by the judge below.
- I add just this. There is in my judgment no possible basis for thinking that DS Curtis's communications had any significant part to play in the disciplinary proceedings, least of all for concluding that without the telephone call or letter such proceedings would not have been brought. Quite the contrary. It is perfectly apparent from the evidence as a whole that they would have been - see for example paragraphs 19 and 22 above. Nor is there any substance in Mr McCormick's suggestion that the fact that the police retained an "open file" on the incident of 17 October 1996 itself constituted a disciplinary charge against the appellant. This whole claim, impetuously brought as it was at the outset of the disciplinary hearing, no doubt for tactical reasons, should in my judgment have been allowed to rest once, just a week later, those proceedings were resolved in the appellant's favour. To my mind it is a crying shame that it continued. Mr McCormick concluded his third and final skeleton argument with the assertion that this appeal "has constitutional implications. The judge in the court below diminished the role of the jury and augmented the power of the police at the expense of the subject". In my judgment he did no such thing. The role of the jury is not in question here. The judge, as he recognised, could not withdraw from them the issue of malice unless a verdict for the appellant would have been perverse. Nor did he augment the power of the police: he was clearly right to find these communications covered by qualified privilege. All that remained in issue was whether a single police sergeant was malicious. I concur with the judge below that no jury could reasonably have found him to be so. Where are the constitutional implications in that?
- I would dismiss this appeal.
Lord Justice Sedley:
- As May LJ remarked in Alexander v Arts Council of Wales  1 WLR 1853, paragraph 41, libel pleaders never seem content to say that the words in issue mean what they say: a pyramid of insulting paraphrases has to be erected on them. One consequence of this, where the occasion is one of qualified privilege, as it plainly was here, is that an alarming gap opens up for the jury between what they are being invited to say the words mean objectively and what the defendant can have meant to convey in using them.
- In this situation, the higher the claimant pitches his meaning, the harder it becomes for the jury to say that that is what the defendant meant and to deduce malice from it. This case is a paradigm. Nothing in either communication was factually incorrect. The local authority plainly had a legitimate interest in securing the information; DS Curtis was acting entirely properly in responding; and the situation he recounted was one which the Chief Constable was fully justified in maintaining in being. It would be lamentable if a police officer who gave accurate information to a public authority with a need to know could be sued for defamation because the information redounded to someone's discredit. The law of qualified privilege is there to ensure that he cannot be, and to allow it to be circumvented by inflating the words complained of into something far beyond their obvious meaning and then saying that the defendant cannot have believed this to be true is to subvert the law.
- For these reasons, which do no more than echo those fully spelt out by Simon Brown LJ, I too would dismiss this appeal.
Mr Justice Jacob:
- For the reasons given by Simon Brown and Sedley LJJ, I too would dismiss this appeal.
Order; Appeal Dismissed; appellant do pay respondents' costs of the appeal on the standard basis, such costs to be the subject of a detailed assessment if not agreed; application for permission to appeal to the House of Lords refused.
(Order does not form part of the approved judgment)
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