Westcott v Westcott

A complaint of alleged criminal conduct made to the police is absolutely privileged in defamation proceedings from the moment the criminal justice system becomes involved. The immunity extends to the initial oral complaint and any subsequent witness statement where each forms part of investigating a crime or possible crime with a view to a prosecution or possible prosecution.

The protection applies even where the complainant allegedly acted maliciously. It is necessary so that victims and witnesses may report crime without fear of costly litigation. Malicious prosecution remains distinct because liability there arises from abuse of legal process, rather than from making the statement. The immunity pursues the legitimate aim of administering justice and is compatible with article 8 of the European Convention on Human Rights.

The respondent reported to the police that the appellant, her father-in-law, had assaulted her and her infant son during a family dispute. She made an initial telephone complaint and later gave the police a written statement. The police took no further action.

The appellant brought proceedings for slander and libel, alleging that the accusations were false and malicious. Mr Richard Parkes QC, sitting as a deputy judge of the Queen’s Bench Division, determined as a preliminary issue that both publications were protected by absolute privilege. He dismissed the claim.

The appellant appealed, contending that an initial complaint merely instigated an investigation and attracted no more than qualified privilege. The central issue was whether absolute privilege covers a complaint to the police where the investigation does not result in a prosecution.

1. The appeal was dismissed unanimously. Ward LJ held that both the initial oral complaint and the subsequent written statement were absolutely privileged. Sedley LJ agreed with both judgments. Stanley Burnton LJ agreed with Ward LJ’s conclusion and reasons and added concurring observations.

2. The governing inquiry was whether the statement could fairly be regarded as part of investigating a crime or possible crime with a view to a prosecution or possible prosecution. The test in Evans v London Hospital Medical College, endorsed in Taylor v Serious Fraud Office, applied equally to informants, investigators and prosecutors. It excluded statements wholly extraneous to an investigation, including irrelevant and gratuitous defamatory statements.

3. An initial report is the first step in the investigative process. The distinction between instigating and investigating a crime was therefore unsound. A potential complainant must know when speaking whether immunity attaches; otherwise fear of defamation proceedings could inhibit the reporting of crime. Absolute privilege consequently attaches from the earliest moment at which the criminal justice system becomes involved. It applies whether or not the informant is later called as a witness and even if the complaint is alleged to be malicious.

4. Qualified privilege would provide inadequate protection because it would require the complainant to defend litigation and could be defeated by proof of malice. Stanley Burnton LJ emphasised that this was especially important for alleged crimes committed in private. He also considered it arbitrary to protect a later statement but not an initial report identifying the alleged perpetrator.

5. The rule did not conflict with the continued availability of malicious prosecution. Defamation immunity protects free communication in the administration of justice. Malicious prosecution instead addresses malicious and unreasonable abuse of the court’s process.

6. The immunity was compatible with article 8 of the European Convention on Human Rights. Protecting the administration of justice was a legitimate aim, and enabling people to report crime freely justified the restriction upon protection of reputation. The immunity was not disproportionate.

1. Court of Appeal (Civil Division): By [2008] EWCA Civ 818, dismissed the claimant’s appeal unanimously and upheld the determination that the oral and written complaints were absolutely privileged.

2. Queen’s Bench Division: Mr Richard Parkes QC, sitting as a deputy judge, determined the preliminary issue in the defendant’s favour on 29 October 2007. He entered judgment for the defendant and dismissed the defamation claim with costs. No citation is stated.