Wood v West Midlands Police

Qualified privilege for police disclosures requires a specific public justification. Damaging information obtained by the police should be disclosed only to the extent necessary to perform a public duty or enable another public body to perform one. The assessment is fact-sensitive and requires careful judgment, safeguards and consideration of the potential harm to the subject. These principles apply with greater force where the person concerned has been charged but not convicted. Under Part 24, the court may determine the issue summarily where the evidence permits a confident view and the defence has no real prospect of success. A mini-trial is inappropriate, but careful analysis is required where the essential facts are before the court.

The claimant brought a libel action against the Chief Constable arising from letters and a fax sent by a police officer to persons connected with the insurance and vehicle-salvage industries. The communications alleged that Gary Hart had been involved in serious vehicle-related offences and suggested that his business was being used to disguise criminal activity. The claimant alleged that the publications referred to him and damaged his livelihood.

The defendant pleaded qualified privilege, relying on the police officer’s duty to prevent and detect crime and the recipients’ legitimate interest in receiving the information. Before trial, the claimant applied under CPR Parts 3.4 and 24 to strike out that defence. The central issue was whether, on the pleaded and assumed evidence, the defence had any real prospect of success.

1. The application was granted. The plea of qualified privilege was struck out and the issue was removed from the forthcoming jury trial.

2. Under Part 24, the court must not conduct a mini-trial where the defence is genuinely fact-sensitive and material facts require investigation. However, where the essential facts have been deployed and the court can form a confident view of the defence’s prospects, it should analyse the evidence and dispose summarily of a fanciful defence. The guidance in Downtex v Flatley and Swain v Hillman was applied.

3. The principles in R v Chief Constable of North Wales Police, ex parte Thorpe applied. Information obtained by the police which is not generally available and may damage an individual should not be disclosed unless disclosure is necessary for the performance of a public duty or to enable another public body to perform one. Disclosure must be limited to what is necessary. The same principles apply to information about persons charged but not convicted, with greater force.

4. Each case must be assessed on its own facts. Relevant considerations included the effectiveness and necessity of the disclosure, the potential damage, the exercise of careful judgment, consultation with senior officers or other agencies, applicable policies, urgency, prior representations by those affected, and whether the recipients had a materially distinctive legitimate interest.

5. On the assumed evidence, the communications were neither necessary nor materially effective for preventing or detecting crime. There was no adequate safeguard, consultation, urgency, policy or explanation of how the recipients could act upon the information. The disclosure concerning the claimant was even less justified. The defendant therefore had no real prospect of establishing qualified privilege.

6. The potentially affected persons would have been entitled to make representations and, if necessary, seek an injunction, consistently with Marcel v Commissioner of Police for the Metropolis. No useful purpose would have been served by postponing the decision until trial.