Westcott v Westcott

Statements made to the police by a complainant during the early stages of an investigation into possible crime may attract absolute privilege and immunity from suit in defamation. The protection covers both a subsequent witness statement and the preceding oral complaint where the latter forms part of the same investigative process. A complainant is not to be distinguished from another witness merely because the complaint initiated the investigation. The immunity is confined to claims in which the statement itself is the cause of action. It does not prevent a claim for malicious prosecution, where the cause of action is the malicious abuse of legal process. The balance between freedom of communication to investigators and reputation rights remains governed by the necessity principle stated in Taylor v Serious Fraud Office [1999] 2 AC 177.

The claimant, a justice of the peace, sued his daughter-in-law in slander and libel after she reported alleged assaults by him and his infant grandson to the police. The publications comprised an initial telephone complaint and a later account dictated to a police officer. The defendant pleaded justification, absolute privilege and qualified privilege. By consent, the court ordered a preliminary issue concerning whether either publication was protected by absolute privilege or immunity from suit. The central issue was whether the established immunity for statements made by witnesses during criminal investigations extended to an initial complaint by the alleged victim and to the witness statement that followed it.

1. Written statement. The taking of a witness statement after an initial complaint was an essential early step in an embryonic police investigation. It therefore fell within the formulation in Evans v London Hospital Medical College [1981] 1 WLR 184, covering statements fairly said to form part of the process of investigating a crime or possible crime with a view to prosecution.
2. There was no rational distinction between a complainant visited by the police to provide a statement and any other witness invited to give evidence. The policy recognised in Taylor v Serious Fraud Office [1999] 2 AC 177 required free and uninhibited communication to investigators, notwithstanding that a malicious person might benefit. The reasoning and conclusion in Buckley v Dalziel [2007] EWHC 1025 (QB) were therefore followed and approved.
3. The existence of a possible claim for malicious prosecution did not require a different result. That tort concerns the abuse of legal process, whereas the defamation claim concerns the publication itself. The different causes of action and their differing consequences justified the distinction maintained in Taylor v Serious Fraud Office [1999] 2 AC 177 and Martin v Watson [1996] 1 AC 74.
4. The claimant’s Article 8 reputation rights did not alter the result. The necessity test under Article 8(2) was, in practice, no different from the necessity test applied by the House of Lords in Taylor v Serious Fraud Office [1999] 2 AC 177. The court declined to reconsider that balance in light of the Human Rights Act 1998, having regard to domestic precedent.
5. Initial oral complaint. The oral complaint preceded and led to the protected written statement. Excluding it would enable the immunity to be outflanked and would undermine the protection attaching to the later statement. It was also part of the process of investigating possible crime. Both publications were therefore protected by absolute privilege and immunity from suit, and the claim was struck out.

First-instance determination of a preliminary issue ordered by consent. The claim was struck out after both publications were held absolutely privileged.