Scottish Court of Session Decisions

This was an action of damages for slander at the instance of William Innes, lately a police constable in the Forfarshire County Police, against Robert Adamson, Chief Constable of the county.

The pursuer averred—“(Cond. 2) On or about 28th August 1888 the pursuer was ordered to perform the duties of constable at Newtyle for the period from said 28th August till 4th September following, during the absence of the Newtyle constable — Constable Laird—on holidays, and he did perform the duties of constable at Newtyle during said period, and gave the defender a written report of the performance of his duties, which report was read by the defender in the County Police Office, Court House Buildings, Dundee, on or about Tuesday, 11th September last, when the defender, without any previous investigation, said he did not believe it, and slandered the pursuer by saying falsely and calumniously and maliciously and without probable cause, in the presence and hearing of James Taylor, Superintendent of Police, Dundee, and Murdoch M'Leod, Inspector of Police, Downfield, near Dundee, that the pursuer had given him a false report, that said report was a lie, meaning thereby that the pursuer wilfully and dishonestly had made a false report regarding the performance of the said duties, and at same time and place, and in presence of the said James Taylor and Murdoch M'Leod, he falsely and calumniously and maliciously and without probable cause, accused the pursuer of neglecting his duties as a police constable, and said that he (the pursuer) instead of attending to his duties had only been putting off his time. The defender had made no inquiries as to the pursuer's performance of his duties, had received no complaints anent the same, and had no cause whatever to make the above statements. In doing so he acted wrongfully and maliciously, and without probable cause.”

On 15th September 1888 the pursuer, in accordance with the rules of the service, gave a month's notice to the defender of his intention to retire from the force. The pursuer further averred—“(Cond. 4) The defender, after receiving the pursuer's resignation, dated 15th September, wrote to the Superintendent James Taylor, Dundee, a letter dated 17th September, in these terms:—‘Constable Innes is dismissed the force. You will see that he immediately delivers up all articles of clothing, &c. His dismissal will date from 15th current.’ This he did without consulting the Police Committee as he was bound to do, and without making any inquiry whatever. The above letter was written most unjustifiably, oppressively, and maliciously, and with the intention of injuring the pursuer, and rendering it impossible for him to join any other police force. Following on said letter, the pursuer was ordered to deliver up his uniform, &c., on the 18th September. This he did. The defender was in the County Police Office, Dundee, on the morning of the 18th, and when there, and in the presence of Superintendent Taylor, Inspector M'Leod, and others, said that he (meaning Innes) would not now be able to join any other force, or used words of the like import and effect. In writing the said letter and making the above statement, the defender acted unwarrantably, illegally, oppressively, and maliciously. By the actings of the defender above set forth the pursuer has suffered in his feelings and reputation. The pursuer did not resign to evade discipline, as stated in answer. He had to remain a whole month in the service after tendering his resignation, and was subject to discipline during that period.”

The pursuer by letter brought his case before the Police Committee of the county, and on 5th October they directed the defender to cancel the pursuer's dismissal, and accept his resignation.

The issues proposed by the pursuer were directed to the following questions:—“1. Whether the defender falsely and calumniously alleged that the report by the pursuer, or part thereof, was a lie, meaning thereby that the pursuer had wilfully and dishonestly made a false report regarding the performance of said duties? 2. Whether the defender falsely and calumniously said of the pursuer that he had wilfully neglected his duties as police constable at Newtyle, and that instead of attending to his duties he had only been putting off time? 3. Whether, on or about the 17th September 1888, after receipt of the pursuer's voluntary resignation from the Forfarshire Constabulary Force, the defender wrongously and oppressively sent the above-mentioned letter to James Taylor, intimating the pursuer's dismissal; and whether in consequence the pursuer was ordered to deliver up all clothing, uniform, and other articles in his possession as a police constable, and did deliver up the same, and was for the time put out of the said police force as a dismissed constable?”

The Statute 20 and 21 Vict. cap. 72, by section 6, provides—“The chief constable shall, subject to the approval of the police I committee, appoint the other constables to be appointed for the county, and a superin—tenefent to be at the head of the constables in each division of the county, and may dis—miss all or any of them, and shall have the general disposition and government of all the constables so to be appointed, subject to such lawful orders as he may receive from the sheriff, or from the justices of the peace in general or quarter sessions assembled, and to the rules established for the government of the force in terms of this Act.”

The defender pleaded, inter alia, that the pursuer's averments were irrelevant; and the Lord Ordinary ( Kinnear) on 18th January 1889 sustained this plea, disallowed the

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issues proposed by the pursuer, and dismissed the action.

“ Opinion.—The pursuer's condescendence discloses that the language of which he complains was used by his superior officer in the performance of his duty.

The case comes to this, that the pursuer was required to present a report to the defender, as Chief Constable, of the manner in which he had performed his duty as a constable under the defender's orders, during a certain period; that he did present such a report in the County Police Office, and that the defender having read it, said he did not believe it, that the report was a lie, and that the pursuer must have been putting off his time. If this was the defender's opinion it was clearly within his right and within his duty to say so. The language imputed to him, that the report was a lie, is not to be commended; but if he used these words, which he denies, it was a rude and unmannerly way of saying what he was entitled to say, but not a legal wrong. It is said that he made a charge of falsehood without previous investigation; but there is nothing to show that any special investigation was necessary in order to enable the Chief Constable to form a judgment as to the correctness of such a report as the pursuer was required to make; and if, upon the face of the statement, he thought it false, he cannot be called upon to prove that this opinion was founded upon reasonable grounds. It was his duty to form an opinion of the report, and to reprimand the pursuer as a constable under his orders if he thought it necessary.

The averments of slander are therefore in my opinion irrelevant, and I do not think the defect is remedied by the use of the word ‘malicious.’ I do not understand it to have been laid down as an absolute rule that special facts, sufficient to prove malice must be averred in every case of privilege. But the cases in which the rule has been applied appear to me to be in point — Scott v. Turnbull, 11 R. 1131, and the cases there cited.

The complaint of wrongful dismissal is in my judgment untenable. The dismissal may have been harsh, but it was not unlawful, and the pursuer was not injured by it, because the Police Committee allowed him to resign, and paid him his salary to the date when the resignation took effect. I think therefore that neither of the issues proposed upon this part of the case raises any question of fact upon which the opinion of a jury ought to be taken.”

The pursuer reclaimed, and argued—The defender had not acted in the discharge of his duty, and his subsequent actings showed that he was actuated by malice— M'Donald v. Fergusson, March 10, 1853, 15 D. 545. The defender had made no inquiries at the time when he charged the pursuer with sending in a false report, and he was not in a position to judge of its accuracy without inquiry. The defender was to a certain extent privileged in his sayings and actings, but the view of the Lord Ordinary was that in circumstances like the present slander could never be uttered. This was carrying a superior officer's privilege too far. No doubt malice must not only be averred on record, but must be put in issue— Macfarlane v. Mochrum School Board, November 9, 1875, 3 R. 88; Marshall v. School Board of Ardrossan, December 10, 1879, 7 R. 359. Sections 4 and 6 of the Police Act showed that the Chief Constable was only primus inter pares, both he and his constables being under the control of the Police Committee of the county. If the pursuer was not allowed to appeal to the civil courts he had no other tribunal from which to claim redress for his wrongs; the public service would suffer, as men of good position would refuse to enter the service to be at the mercy of a despot. The pursuer had averred sufficient facts from which malice might be inferred— M'Murchy v. Campbell, May 21, 1887, 14 R. 725; M'Auley v. School Board of North Uist, November 26, 1887, 15 R. 99; Munster, L.R., 11 Q.B. 588.

Argued for respondent—A case of privilege was disclosed on the pursuer's own statement. Malice had therefore to be sufficiently averred on record, and as this was not done, the Lord Ordinary had dismissed the action as irrelevant— Beaton v. Ivory, July 19, 1887, 14 R 1057. The relation between a Chief Constable and his subordinates was a quasi-military one, and the knowledge that a constable dismissed for negligence or misbehaviour might appeal to the law courts by means of an action of damages would be subversive of discipline, and opposed to public policy. Section 6 of the Act of 1820 gave a Chief Constable an absolute power of dismissal; the defender here had this power, and had used it in the exercise of his discretion, and for the public good. The position of the defender here resembled that of a judge— Dawkins v. Paulett, L.R., 5 Q.B. 94, and 7 H. of L. 744; Dawkins v. Rokeby, L.R., 8 Q.B. 255; Spill v. Maule, L.R., 4 Ex. 232; Haggard v. Hope, June 1, 1821, 1 Sh. (N.E.) 49, and 2 Sh. App. 125.

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