Scottish Court of Session Decisions

This was an action of damages for slander at the iustance of Donald M'Murchy, sometime sergeant of police at Oban, against Peter Campbell, late inspector of police, Oban, and John Campbell Maclullich, S.S.C., Procurator-Fiscal, Inveraray.

The ground of action was that the defenders, on or about 19th September 1885, “acting in concert together or separately, or one or other of them,” prepared a report concerning the pursuer, which they sent, signed by the defender Campbell, to Colin M'Kay, Chief-Constable of Argyleshire, in which there was this statement—“I have to report you alleged misconduct on the part of Sergeant M'Murchy, Oban, which, if found on investigation to be true, will seriously affect his moral character. What I am about to state is well known at Inveraray among all classes (including P.-F.), at Taynafaed public-house, and the post-boys at Dalmally Hotel. On the 1st or 2d January 1884 M'Murchy took Alexander Gillies, a boy prisoner, from Bonaw to Inveraray, charged with theft, and it is alleged that while at Inveraray on that occasion, and in broad daylight, he had a woman named Jessie Luke, who is considered a prostitute with two or three illegitimate children, in Buntine's Hotel; that he pulled down the blinds, got whisky, and locked the door, and had the woman there for about two hours, and I need hardly say what is supposed to have taken place.… M'Murchy took the woman Luke in the conveyance to Taynafaed public-house that night, gave the driver, Angus M'Intyre, drink, and kept him waiting outside till the poor old man got benumbed, the result being that the driver was put down for being drunk, by Fraser, when he arrived at Dalmally, dismissed, and has not driven a conveyance since. Again, in June last, M'Murchy had Luke in the conveyance with him, Duncan M'Galium, driver, from Inveraray to Taynafaed, where there was some delay.” … The report concluded—“Of course an independent investigation must be made into all these allegations in the interest of the public and for the purity of the police force.”

The pursuer averred—“These statements regarding the pursuer are unfounded and malicious falsehoods, and represented the pursuer to have acted as an immoral and dissolute person, and to be unworthy of employment in the police force.” He stated that in consequence of the report having been sent to the Chief-Constable he had been suspended for two weeks, but that he had been reinstated after the charges had been investigated by the Police Committee at Inveraray, and found to be without foundation.

The defender Campbell stated in answer that the facts contained in the report were currently reported about Inveraray and Dalmally. This the pursuer denied. Campbell further stated, that as the pursuer's superior officer, and in the discharge of his duties, he had made the report to the Chief-Constable.

The defender Maclullich stated that he had no knowledge of the report until a copy of it was sent him in his official capacity by the Chief-Constable.

The pursuer further averred—“The above-mentioned false and calumnious charges against the pursuer were made and circulated by the defenders maliciously, and without any just or probable cause. The defenders were actuated by a feeling of ill-will against the pursuer, and a desire to damage his character and deprive him of his situation in the police force.”

Campbell pleaded privilege.

Issues were ordered, and on 25th March 1887 the Lord Ordinary ( Lee) found that the pursuer's allegations were not relevant and sufficient to support the action, and assoilzied the defenders.

“ Note.—When issues were ordered in this case it was understood that the question of relevancy was to be raised upon the issues, and accordingly a discussion upon the relevancy took place.

“The case is a peculiar one, but as it involves a question of general importance in actions of slander based upon statements contained in an official report, or what purports to be an official report, I shall state the grounds upon which I have arrived at the conclusion that the action is irrelevant.

“The pursuer was a sergeant in the Argyleshire police, the defender Campbell was an inspector of police in the same force, and the defender Maclullich was and is Procurator-Fiscal of the county. The only slander complained of in the issues proposed is that set forth in condescendenoe, art. 2, and it is said to have been contained in the written report or statement there referred to. That statement or report bears to be written by the defender Campbell,

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and to be addressed to the Chief-Constable of the county. It is not said that the other defender (the Procurator-Fiscal) either signed it or authorised it, and it does not appear to have been written on the responsibility of any person excepting the defender Campbell. All that is alleged in order to connect with it the defender Maclullich is, that ‘the defenders acting in concert together or separately, or one or other of them, prepared a report or written statement,' and in reply to Maclullich's statement in answer it is ‘averred that the said defender acted in concert with the defender Campbell, and was in full cognisance of and party to the writing of the alleged report.’

“In this state of the record, and looking to the terms of the letter, I think that there is no sufficient allegation that the slander was uttered by the defender Maclullich, and that on this ground alone the action fails as against him. Assuming the fact to be that he was cognisant of it and was consulted about it, and a party to it in the sense of approving of Campbell writing it, this would not be sufficient to make him responsible for its contents unless he knew that the statements contained in it were falsehoods, which is not averred.

“As to the case against Campbell the record discloses the fact that the report was made by him in his official capacity, and to his superior officer the Chief-Constable. It does not profess to vouch for the truth of the statements concerning the pursuer, but only that such misconduct was alleged, and that the allegation was current at Inveraray. It assumes and states that ‘of course an independent investigation must be made.’

“In this state of matters I think that the case is one in which it was not enough for the pursuer to allege malice in general terms, and that it was incumbent on him to set forth the facts and circumstances from which he is to maintain that malice may be inferred. He avers that the statements ‘are unfounded and malicious falsehoods,' and he denies that any report affecting his moral character was ever current ‘as alleged in ans. 2.’ But he does not allege that the alleged rumours were inventions by the defenders, or that the report was made to the Chief-Constable recklessly or without probable cause. He states that the information referred to in condescendence 3 was given without probable cause as well as maliciously, but no issue is proposed as to that matter, and no want of probable cause is alleged as regards the report in question. My opinion is that the statements contained in the report to the Chief-Constable, being made by a person within whose duty it was to report matters affecting the character and efficiency of the police force, and as statements requiring investigation, are not actionable if there was probable cause for so reporting them. I therefore think that the general averment of malice is insufficient, and that the action cannot be maintained.

“The case of Craig v. Peebles, 3 R. 441, and the opinion of the Judges in that case, though relating to an action against a Procurator-Fiscal for slander in a complaint before the Justices of Peace, appear to me to apply with equal force to slanderous statements contained in an official report. I may refer also to the case of Green v. Chalmers, 6 R. 318, on this point.”

The pursuer reclaimed, and argued that there was a sufficient averment of malice and want of probable cause— Adie v. Gowans and Ferguson, January 16, 1847, 9 D. 495.

Counsel for the defenders were not called upon.

At advising—