Halford v Chief Constable of Hampshire Constabulary & Anor

Communications made pursuant to a reciprocal duty and interest attract qualified privilege. The privilege is not lost merely because part of the publication may be logically irrelevant. Any irrelevant material may instead bear on whether the publisher acted with express malice.

Malice requires evidence that the publisher lacked an honest belief in the intended meaning, or that fulfilment of the relevant duty played no significant part in the decision to publish. A judge may withdraw malice from the jury where, taking the claimant’s evidence at its highest, no properly directed jury could find it.

The claimant, an education welfare officer, brought libel proceedings over information supplied by a detective sergeant to the claimant’s local-authority employer. The communications concerned an investigated allegation that the claimant had assaulted his stepson, the absence of a prosecution, and the police classification of the matter as unresolved.

Following a jury trial, the High Court ruled that both publications occurred on occasions of qualified privilege and that there was insufficient evidence for a jury properly to find malice. Judgment was entered for the defendants.

The claimant appealed, contending that parts of the communications exceeded the scope of the privilege and that the judge had usurped the jury’s function when determining the issue of malice.

1. Appeal dismissed unanimously. Simon Brown LJ held that both communications were made on clear occasions of qualified privilege. Sedley LJ and Jacob J agreed. The local authority had a legitimate interest in receiving information relevant to child protection and the claimant’s suitability for continued employment, while the police officer had a corresponding duty to respond fully and candidly.

2. Qualified privilege attaches to the occasion rather than to each logically relevant part of the publication. Applying Horrocks v Lowe [1975] AC 135, the inclusion of matter which could be regarded as irrelevant does not automatically remove the privilege. Its inclusion may instead be considered when deciding whether malice can properly be inferred. In any event, none of the information supplied here could reasonably be regarded as irrelevant.

3. Express malice may be established by showing either that the publisher lacked an honest belief in the truth of the meaning intended, or that the dominant motive was personal spite or another improper purpose and the relevant duty played no significant part in the publication. The words stating that the matter was unresolved, open or unproved could not mean that the officer believed the claimant guilty but could not prove it. They conveyed that guilt and innocence remained unproved and that some grounds for suspicion remained.

4. The evidence could not support a finding that the officer disbelieved what he intended to communicate. Nor could an alleged hostile remark, even if made, permit a reasonable jury to find that spite or ill-will was his dominant motive. The officer’s duty to give accurate and candid information remained central to the publications.

5. Following Alexander v Arts Council of Wales [2001] 1 WLR 1853, the question was whether, taking the evidence at its highest, a properly directed jury could infer the necessary subjective dishonesty or improper dominant motive. Any verdict for the claimant on malice would have been perverse. The trial judge therefore acted properly in withdrawing that issue from the jury.

• Court of Appeal (Civil Division): The appeal was dismissed unanimously. The rulings on qualified privilege and the insufficiency of the evidence of malice were upheld.
• High Court of Justice, Queen’s Bench Division: HHJ Richard Walker QC ruled that both publications occurred on occasions of qualified privilege and that no properly directed jury could find malice. Judgment was entered for the defendants with costs.