Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH NUMBER
	OPINION OF LADY SMITH in the cause DAVID LYONS Pursuer: against STEPHEN HOUSE QPM, CHIEF CONSTABLE OF STRATHCLYDE POLICE Defender: ­­­­­­­­­­­­­­­­­________________

For pursuer : Bovey QC; Henderson . Drummond Miller LLP

For defender: Jones QC , Solicitor- advocate; MacPherson, Solicitor- advocate, Simpson & Marwick

8 March 2012

INTRODUCTION

[1] The Chief Constable of Strathclyde Police has, on two occasions, advised regulatory bodies that intelligence held by Strathclyde Police indicated that David Lyons, the pursuer, was involved in serious and organised crime including drug trafficking and supply. The pursuer states that he has had no such involvement and that although various members of his family have serious criminal records, he has led a straight life.

[2] The pursuer seeks damages, declarator and interdict. The basis for his claims is that he has been defamed and that the defender has breached the duties imposed on him by the Data Protection Act 1998 ("DPA").

[3] The action came before me on the procedure roll in respect of the defender's plea to the relevancy of the pursuer's pleadings.

THE PURSUER'S PLEADINGS

[4] The pursuer has four conclusions:

"1. For payment by the defender to the pursuer of the sum of TWO HUNDRED THOUSAND POUNDS (£200,000) STERLING with interest thereon at the rate of 8 per cent per year from 18^th October, 2007 or such later date or dates as to the Court shall seem proper until payment.

2. For declarator that any assertion to the effect that the pursuer is involved in serious and organised crime including the trafficking and supply of Class A drugs is false.

3. To interdict the defender or others on his behalf from representing that the pursuer is a career criminal involved in serious and organised crime including the trafficking and supply of Class A drugs.

4. For the expenses of the action."

[5] The pursuer avers that he runs a garage business. He founds on two letters written by the defender.

[6] The first letter was dated 17 October 2007 and addressed to the clerk of the Licensing Committee of Glasgow City Council. A business called Balmore Car Centre - which was said to lease its premises "for free" from the pursuer - had applied for a second hand car dealer's licence. The defender objected to Balmore's application on various grounds including that:

"......intelligence held by Strathclyde police provides that associate Mr David Lyons, DOB 24.10.59, 4, Roseburn Court, Cumbernauld is involved in serious and organized crime including the trafficking and supply of class A drugs."

[7] The second letter - a copy of which was obtained by the pursuer at the end of June 2011, after this action was raised - was dated 8 March 2010 and addressed to the Director of Intelligence at the Vehicle and Operator Services Agency ("VOSA"). In that letter, the defender stated:

"Intelligence

Strathclyde Police operate the Scottish Intelligence Database (SID) which contains information and intelligence from a wide variety of sources, some of whom cannot be more fully described, which spans a considerable period of time.

Synopsis of Intelligence

David Lyons

Born 24/10/1959

4 Roseburn Court

Cumbernauld

G67 3PS

David Lyons is documented on the Scottish Intelligence Database as being involved in Serious and Organised Crime and has many criminal associates who are involved in violence, money laundering and the acquisition and distribution of controlled drugs.

Intelligence provides that David Lyons has come to prominence through his criminal associations and an ongoing feud between rival criminal families. Current intelligence suggests that after the recent murder of a rival in the Glasgow area, David Lyons is fearful of a revenge attack which may take place at Applerow Garage. As a result of this information Strathclyde Police have increased patrols at the premises and surrounding area.

It is the opinion of Strathclyde Police that David Lyons, who is currently licensed under the Vehicle and Operator Services agency and holds an operator's license under the Ministry of Transport, is not fit and proper persons (sic) to hold such a licence and is a danger to public safety due to his links with Serious and Organised Crime."

[8] In March 2010, the pursuer lost his authorisation to carry out MOT tests.

[9] The pursuer avers that the defender's "observations" were "made with malice" and "without probable cause" (Article IV of Condescendence). In support of that, he relies on the fact that he has not been charged with a crime, that so far as he is aware he is not under investigation, that the police did not notify him in advance of writing the two letters or afford him a hearing, and that the police had no duty to make the statements complained of (Article 6 of Condescendence). He also avers:

"On 20^th October, 2009, he visited the Police accompanied by a Journalist (Alan Caldwell). It was conceded that their "intelligence" was not based on any evidence. When pressed by Mr Caldwell to distinguish between rumour and intelligence, the Officer was unable to do so."

[10] He does not aver that the visit to the police in October 2009 related to the first of the above letters (it could not have related to the second letter, which postdated it). It is not averred that the pursuer had any knowledge of that letter at that time. Rather, the averments indicate that there was some general discussion about the basis on which the police record and hold intelligence.

[11] The pursuer's overall approach is that "the Police" allege that he is a "career criminal" involved in drug trafficking and that they have made and are making "continuing representations" to that effect.

[12] The pursuer does not aver that the police knew that the intelligence held about him was untrue.

[13] In Article III of Condescendence, the pursuer makes averments about the 2007 letter which do not bear to be intended to support his case of malice - malice is covered in Article IV. However, counsel for the pursuer relied on Article III as well as Article IV in the course of his submissions on malice. The averments concerned are that the letter was not qualified so as to say that it was not for publication, that the defender "knew or ought to have known" that it would attract attention beyond the licensing authority, and that the authority's appeals board was held in public. He does not aver how or why the defender "knew" nor that any decision by the licensing authority about publicising any of the content of the letter was within the control of the defender - on the face of matters, that decision was manifestly within the sole control of the licensing authority.

[14] Separately, the pursuer avers that the defender has committed "other civil wrongs". As averred, they include "breach of common law obligations of privacy and confidentiality" but the case is not further developed in the pleadings. In particular, there are no averments to show that there was a relationship between the parties which gave rise to duties of privacy and confidentiality.

[15] The pursuer also pleads a breach of the DPA. The pursuer's case is, essentially, that the information disclosed was "sensitive personal data" (see Section 2(g) of DPA) and was misused in respect that it was used "to justify the issuing of some form of finding that the pursuer is a career criminal" (Article VI of Condescendence). He relies on principle 4 of Schedule 1 to DPA and avers that the information concerning the pursuer kept by the defender was neither accurate nor up to date.

RELEVANT LAW

The Police

[16] Police in Scotland have a duty :

"(a) to guard, patrol and watch so as -

(i) to prevent the commission of offences,

(ii) to preserve order, and

(iii) to protect life and property."
[1]

The expression "guard, patrol and watch" is general and connotes a wide range of such activities as, in their judgment, the police consider are required for the implementation of their stated duties. Indeed, it was not suggested by counsel for the pursuer that, in principle, the defender was not entitled to engage in the activities of objecting to licence applications and drawing VOSA's attention to a chief constable's opinion as to a person's suitability to continue holding a licence.

[17] In furtherance of those duties, a chief constable may object to certain applications for statutory authorisation or draw relevant matters relating to existing licence holders to the attention of the relevant regulatory authority. In the case of a person who wishes to carry on business as a dealer in second hand goods, he must first obtain a licence to do so from the relevant local authority
[2]. That authority must send a copy of each such application to the chief constable
[3].

[18] The "MOT test" is a compulsory annual test of automobile safety which must be carried out on certain vehicles. MOT certificates are issued under the auspices of VOSA and may only be issued by an appropriately authorised MOT tester at a duly authorised MOT test station.

Defamation

[19] Defamation is not necessarily actionable. If the statement complained of was made on a privileged occasion, the law protects the maker unless the pursuer establishes that it was made maliciously. This was clearly explained as long ago as 1888, by Lord Young, in the case of Shaw v Morgan
[4]:

"Slander is a defamatory statement maliciously made to the injury of another. If the statement, however defamatory, is not maliciously made, it is not slander. That law is stated both in the English textbooks and by our own Judges. But when a man says or writes anything defamatory of another he is

assumed to do so maliciously. The law presumes malice from the defamatory character of the statement unless the occasion on which it is made is what is termed a privileged occasion, so that the presumption of malice is displaced by the occasion. ................if the occasion be privileged, if the statement be made in the discharge of a duty or in the reasonable attention to a man's own business and affairs, which gives him legitimate cause to write or speak of his neighbour, the occasion displaces the presumption of malice and the presumption of falsehood, and he is only answerable if malice be shown to have existed in fact, and the statement to be untrue."
[5]

[20] In Robertson v Keith
[6], it was held that the keeping of a police watch on a woman's house where it was suspected that a police constable was sheltering (in dereliction of his duty) was privileged, and the pursuer's action failed as she had not proved malice and want of probable cause. The Lord President explained:

"...the question of malice is essentially a question of good faith. It has to be remembered that, in order to succeed, the pursuer has to prove both malice and want of probable cause."
[7]

and the Lord Justice Clerk provided the following summary:

"1. An act is prima facie within the competence of the public official doing or authorising it when it is the kind of act that is within his ordinary duty to discharge.

2. When a public official does an act that is prima facie within his ordinary duty, there is a presumption that he has acted within his authority.

3. This presumption is not absolute, but may be rebutted by showing that the act was unrelated to any duty arising on the particular occasion, in which case the act ceases to be within the authority or competence of the public official

and becomes unlawful.

4. Where an act is within the competence, no civil liability arises from the doing of the act, unless it can be shown that the act was done maliciously and without probable cause.

5. Want of probable cause and malice are not necessarily unrelated and independent. The absence of just cause may go to prove malice, and similarly the presence of oblique or dishonest motive may go to show the absence of probable cause.

6. Malice may be inferred from recklessness, and the facts and circumstances from which it may be inferred need not be extrinsic to the circumstances in which the act is done or to the manner of doing it.

7. Circumstances may show that an act was done with malice, or without probable cause, or that it was an act outwith the competence of the person doing or authorising it. In some cases, according to the angle from which the question is approached, the same facts may be habile to infer each of these conclusions.

8. The onus probandi is on the pursuer to show that the act complained of is outwith the competence of the person doing or authorising it, or, if within the competence, that it was done maliciously and without probable cause."
[8]

The idea that malice involves bad faith also arose in the discussion by Lord Diplock

in the case of Horrocks v Lowe
[9]:

"The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be

accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue."
[10]

[21] Establishing malice normally involves overcoming a high hurdle and the law is astute not to undermine the protections afforded by the important principle of qualified privilege. At p.151 in Horrocks, Lord Diplock also said:

"Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that "express malice" can properly be found."

[22] As to what needs to be averred for a relevant case of malice, whilst there may

be cases in which a general allegation of malice will be sufficient, in others, particular facts and circumstances will require to be the subject of averment. In Elder v Gillespie
[11], Lord Morison, when considering the terms of an issue for the jury in a defamation case, observed:

"Before malice can be inserted in an issue, the Court must, in my opinion, be satisfied that malice on the part of the defender has been relevantly averred; that is to say that there are on record facts and circumstances - intrinsic or extrinsic to the libel - from which, if proved, a jury would be entitled to hold that the defender had acted maliciously, and not in discharge of the duty which he professed to perform."
[12]

and he relied on certain observations by the Lord President in the case of Innes v Adamson
[13] to the effect that there were two classes of case - one where it was enough to make a general allegation of malice and the other where it was necessary to aver particular facts and circumstances. A case where it was considered possible that little more needed to be said than to refer to the terms of the defamatory statement is the decision of Sheriff Principal Bowen QC, in Continental Tyre Group Ltd v Alan Robertson t/a Linlithgow Tyres and Exhausts
[14]. Relying on Lord Deas having said, in Watson v Burnet
[15], that:

" ...the pursuer must allege and prove actual malice, or such grossness, impropriety or excess, as the law will hold equivalent to malice."

Sheriff Principal Bowen commented that for the defender to have said (as was alleged) that he would not put the pursuer's tyres on his worst enemy's car might well be regarded as an example of such "grossness, impropriety or excess" as to be the equivalent of a display of malice.

[23] That is, perhaps, no more than to say that, for malice, averments require to be made which, if proved, would show that the defender acted with ill will - that he acted with some positive intention of injuring the person about whom he is speaking. That requires to be the primary motivation. As Lord Diplock put it, in Horrocks:

"Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed ................the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.

The motive with which a person published defamatory matter can only be inferred from what he did or said or knew."
[16]

[24] Thus, dislike of the person who is the object of the statement or gratitude on the part of the maker of the statement at being able to make it would not, of themselves, negative privilege
[17]. More would require to be averred and proved.

[25] The case of Wood v Chief Constable of the West Midlands Police
[18], which was relied on heavily by the pursuer's counsel, is an example of a set of facts and circumstances surrounding the making of a statement by a police officer which did not support a defence of qualified privilege. Those facts and circumstances were, however, rather different from the present case and involved a Detective Chief Inspector taking it upon himself to write to motor insurers to advise them that a man had been arrested and charged with vehicle theft and that he had been disguising his criminal activities under the "veil" of a legitimate business and asking them to consider their position regarding doing any further business with that organisation. The plaintiff was the man's fellow director and worked full time in the business. The DCI was disciplined; he had no business having written such letters. There was no police policy which supported him doing so, no urgency and no question of the purpose being the prevention of crime. May LJ observed
[19] that the man having been arrested and charged but not yet tried, the police should have been taking particular care, that the DCI had no business making let alone duty to make, statements (as he had done) which anticipated that he would be convicted but, in the same paragraph, stressed - unsurprisingly - that each case depends on a careful consideration of its own facts.

[26] Reference was made in Wood to a list of factors relied on by the trial judge when reaching his conclusion (with which the Court of Appeal agreed) that the occasion was not privileged
[20] and that list was relied on by counsel for the pursuer in the present case as though it was prescriptive. I do not, however, read it as an attempt to lay down guidelines for universal application. As May LJ made plain, the decision on an issue of qualified privilege will depend very much on the facts and circumstances of the individual case.

[27] I would also refer to the case of R v Chief Constable of the North Wales Police and others, ex parte Thorpe
[21], which concerned applications for judicial review

where the police had disclosed information about convicted paedophiles. That is, it did not concern the issue of whether or not a particular occasion was privileged or not (or whether the police had acted maliciously). Lord Bingham of Cornhill CJ did, however, provide general observations which are of some relevance for the purposes of the present case:

"When, in the course of performing their public duties, a public body (such as a police force) comes into possession of information relating to a member of the public, being information not generally available and potentially damaging to that member of the public if disclosed, the body ought not to disclose such information save for the purpose of and to the extent necessary for the performance of its public duty or enabling some other public body to perform its public duty. This principle would not prevent the police making factual statements concerning police operations, even if such statements involved a report that an individual had been arrested or charged, but it would prevent the disclosure of damaging information about individuals acquired by the police in the course of their operations unless there was a specific public justification for such disclosure. This principle does not in my view rest on the existence of a duty of confidence owed by the public body to the member of the public although it might well be that such a duty of confidence might in certain circumstances arise. The principle, as I think, rests on a fundamental rule of good public administration, which the law must recognise and if necessary enforce.
[22]..................................

It seems to me to follow that if the police, having obtained information about an individual which it would be damaging to that individual to disclose, and which should not be disclosed without some public justification, consider in the exercise of a careful and bona fide judgment that it is desirable or necessary to in the public interest to make disclosure, whether for the purpose of preventing crime or alerting members of the public to an apprehended danger, it is proper for them to make such limited disclosure that is judged necessary to achieve that purpose."
[23]

[28] What seems striking from the above passages is that Lord Bingham stresses that whilst it is recognised that these are difficult situations where the police require to strike the right balance between public and private interest, much is to be left to their judgment.

[29] Similarly, in the case of Van Colle v Chief Constable (Hertfordshire)
[24], where the issue was whether or not the police had a duty to advise potential victims of threats directed at them about which the police had intelligence, the majority were clear that it was important to leave the decision about what to do with such intelligence to their judgment.

[30] Finally in relation to the law relating to defamation, I should refer to the case of Halford v Chief Constable of Hampshire and another
[25], which was distinguished in the case of Wood as being a case where disclosure of intelligence by the police was appropriate. There, the police had made disclosures in relation to allegations that an Education Welfare Officer had assaulted his stepson to the local police surgeon and to his employer's personnel officer. No prosecution ensued but the fact of the allegation having been made was retained on the police database. Approving the decision of the trial judge on the issue of qualified privilege, Lord Justice Simon Brown referred to him having classified the communications as being "classic occasions of qualified privilege". At paragraph 39, he added:

"It seems to me nothing short of absurd to suggest that the communications

made here by DS Curtis to Ms Lack on behalf of those concerned both with the care of the appellant's step-children and with his suitability for continued employment as an EWO were not made on occasions of qualified privilege. Manifestly they were."

DPA

[31] The provisions of DPA, insofar as relevant, are:

"1 - Basic interpretative provisions.

(1) In this Act, unless the context otherwise requires -

"data" means information ...

"personal data" means data which relates to a living individual who could be identified -

(a) from those data, or

(b)from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,

and includes any expression of opinion about the individual ...

2. - Sensitive personal data

In this Act "sensitive personal data" means personal data consisting of information as to -

...

(g) the commission or alleged commission by him of any offence.

...

4. - The data protection principles

(1) References in this Act to the data protection principles are to the principles set out in Part I of Schedule 1.

...

70 - Supplementary definitions

...

(2) For the purposes of this Act data are inaccurate if they are incorrect or misleading as to any matter of fact.

...

SCHEDULE I

The data protection principles

PART 1

The principles

...

4.

Personal data shall be accurate and, where necessary, kept up to date.

...

PART 2

Interpretation of the principles in Part 1

...

7

The fourth principle is not to be regarded as being contravened by reason of any inaccuracy in personal data which accurately record information obtained by the data controller from the data subject or a third party in a case where -

(a) having regard to the purpose or purposes for which the data were obtained and further processed, the data controller has taken reasonable steps to ensure the accuracy of the data, and

(b) if the data subject has notified the data controller of the data subject's view that the data are inaccurate, the data indicate that fact."

The Information Commissioner's Office has published a document headed "The Guide to Data Protection". So far as the fourth data protection principle is concerned the Guide states, at p.63, paragraph 4:

"...The law recognises that it may not be practical to double check the accuracy of every item of personal data you receive."

At page 64, the Guide asks and answers the question "When is personal data "accurate" or "inaccurate"?" The Guide explains:

"The Data Protection Act does not define the word "accurate" but it does say that personal data is inaccurate if it is incorrect or misleading as to any matter of fact. It will usually be obvious whether information is accurate or not. For example, if an individual has moved house from Chester to Wilmslow, a record showing that he currently lives in Chester is obviously inaccurate. But a record showing that he once lived in Chester remains accurate even though he no longer lives there. You must always be clear about what a record is intended to show.

Example

A journalist builds up a profile of a particular public figure. This includes information derived from rumours circulating on the internet that the individual was once arrested on suspicion of dangerous driving. If the journalist records that the individual was arrested, without qualifying this, he or she is asserting this as an accurate fact. However, if it is clear that the journalist is recording rumours, the record is accurate - the journalist is not asserting that the individual was arrested for this offence."

SUBMISSIONS FOR THE DEFENDER

Defamation

[32] Counsel stressed the importance of testing matters according to the pursuer's averments. The relevant question was whether, on the face of the pursuer's pleadings, he had put forward an arguable case of defamation. The pursuer had, it was contended, failed to do so. The pursuer had averred two occasions of communication which, on the pursuer's own averments, demonstrated that privilege attached to them. The duties of the police under section 17 of the 1967 Act were all embracing. It was plain that the gathering of criminal intelligence was within those duties. In the case of both letters, the defender was communicating to regulatory bodies which, in turn, were performing public duties. It was not suggested in the pursuer's averments that the information about intelligence held was irrelevant to the issue which either regulatory body had to address. Where police were acting in furtherance of their duties, privilege plainly applied. The case of Wallace v Rooney
[26] was referred to as an example of the court being satisfied that there was no question of a person having been slandered where a constable was acting in furtherance of his duty to remove "bad characters" from a racing enclosure. The police had a duty to hold and deal with intelligence. If they did nothing to pass it on, it was difficult to see how they could carry out their duty. The police had not, according to the pursuer's case endorsed the allegations contained in the intelligence held. The pursuer's averments amounted to no more than that the police passed on certain intelligence not that they stated or demonstrated a belief in the truth of that intelligence. Further, the pursuer did not suggest that the police did not hold the intelligence referred to. It seemed to be accepted by the pursuer that they had done. Insofar as the pursuer sought to rely on Rodgers v Orr
[27], it was not relevant. It concerned an issue of whether confidential information in the control and custody of the Lord Advocate should be disclosed to a third party against the Lord Advocate's wishes. That could be contrasted with the present circumstances where there was intelligence owned by the police which they had decided ought properly to be communicated. Insofar as the pursuer relied on the Commissioner of Police (Bermuda) v Bermuda Broadcasting Company Limited and others
[28], that too was irrelevant. It concerned information owned by the police which had suffered unauthorised removal and an issue of whether the person who had come into possession of it could publish it in the public interest. Gibbs v Rea
[29] was, likewise, of no assistance. Insofar as the pursuer relied on the case of Van Colle v Chief Constable (Hertfordshire)
[30], it was also irrelevant. It did not concern the issues which arose in the present case that concerned the liability of police for alleged breaches of what was said to be a common law duty of care to communicate information to potential victims of crime. Although the pursuer had made reference to the case of Keegan v United Kingdom
[31], the pursuer did not plead any case under the Convention and there was no suggestion that what was referred to as some "vague nod" to it altered the well established criteria in relation to the law of defamation.

[33] The defender's counsel referred to the cases of Shaw v Morgan, Elder v Gillespie, Robertson v Keith and Horrocks v Low as setting out the essential relevant principles. In relation to the case of Wood, counsel pointed to the extent to which it could be distinguished on the facts. The pursuer's reliance on Thorpe and Wood as being supportive of his case was misconceived.

DPA

[34] At the outset, the defender's counsel made it clear that, contrary to what the pursuer appeared to think was the case, the defender was not relying on section 29 of DPA. Turning to the pursuer's DPA case, it was advanced only under reference to the fourth data protection principle. The pursuer made no relevant case of any breach of that principle. The DPA procedure was a statutory procedure for the purpose of regulating the processing of data. Data should be accurate and, where necessary kept up to date. The letters, in this case, were "intelligence" held by the defender. It was important to recognise that the data was that there was intelligence to the effect set out in the two letters. The data was not that the pursuer had committed the crimes referred to or that he was a "career criminal". Accordingly, the fact that the pursuer stated he had not committed any crimes did not show that the data kept by the defender was inaccurate. The issue was not whether that which was referred to in the intelligence was true. The issue was whether the intelligence - the allegation - was received by the police. There was no suggestion that it had not been. Reference was made, by way of illustration, to the guidance provided by the Information Commissioner (as referred to above). It provided a useful illustration of the fact that data was not inaccurate under the DPA simply because it was a record of rumours. Reference was made to various purposes for which the police hold data comprising intelligence received such as for Disclosure (Scotland) purposes. The procedure adopted in Nicol v Caledonian Newspapers
[32], relied on by the pursuer, was not appropriate because the pursuer did not plead a relevant case of breach of statutory duty.

Common Law claim

[35] Counsel for the defender submitted that the pursuer had no relevant case of breach by the defender of any duties owed at common law. There was no averment of any relationship between the parties which could give rise to the obligations relied on. Nor was there any question of the police having a stand - alone duty to warn the pursuer prior to the making of the communications complained of.

Conclusions for Declarator and Interdict

[36] Regarding the conclusion for declarator, counsel for the defender submitted that it plainly had nothing to do with the issue that appeared to concern the pursuer, namely the holding of intelligence by the defender. Further, it was incompetent. Regarding the interdict conclusion, there were no relevant averments to support it.

SUBMISSIONS FOR THE PURSUER

Defamation

[37] Counsel for the pursuer submitted that his averments were sufficient for a proof before answer. An anxious balancing exercise had to be carried out between the rights of individuals and the powers of the police. The two letters involved serious allegations that the pursuer was involved in serious crime. The pursuer's position was that he had led a straight life. An investigation into the facts was required as in the case of Lawrence Builders v Lanark County Council.
[33]

[38] Counsel for the pursuer submitted that the defender misunderstood his case. The pursuer's main point was that the circumstances did not entitle the defender to claim privilege. Malice was, it was said, presented as part of an esto case. Regarding the issue of privilege, the police were not, it was submitted, under any form of duty to make objections to the licence application. It was, however, accepted that the Chief Constable had a right to make objections. Case law suggested that the police had no common law duty to prevent individuals from suffering harm from crime: Van Colle v Chief Constable (Hertfordshire). Separately, police intelligence ought to be kept confidential - counsel referred to Rodgers v Orr and Commissioner of Police v Bermuda Broadcasting Co Limited (Bermuda). The intelligence was sensitive information.

[39] Counsel submitted that it was for the defender to satisfy the court that the occasion was privileged. That determination required, it was said, to be made "against the background" of the European Convention on Human Rights which was geared to protecting against abuse of power. For that proposition, the case of Keegan v United Kingdom was relied on. By way of further observation, it was said that in the European dimension the court was no longer hampered by malice. Reverting to the issue of privilege, the police were not, it was submitted, automatically entitled to privilege. Heavy reliance was placed on the cases of Wood and Thorpe which were said to provide clear authority for the proposition that qualified privilege for disclosure by the police was highly fact sensitive; that meant that a proof before answer should be allowed. It was, however, accepted that it was fair to say that the police had an interest or a legal or moral duty to make communications with the licensing board and VOSA. Further, it was accepted that those bodies had legal duties to receive such disclosures. It was contended that the general principle governing disclosure was that police information should not be disclosed unless there were important considerations of public interest to justify departure from the general rule of confidentiality. Reliance was placed on the case of Thorpe for that proposition. Then, it was, it was said, a problem for the defender that he did not bring himself within the justifications suggested by the trial judge in Wood. Police disclosure could only, properly, be on a "need to know" basis. It was not accepted that that applied in this case. The defender averred privilege. The pursuer, on the above bases, denied the privilege applied. There needed to be a trial of that issue.

[40] Turning to malice, it was submitted that malice was to be presumed: Shaw v Morgan. Under reference to Robertson v Keith, it was submitted that in the present case it was not within the competence of the police to release the information which was communicated. Esto that was not the case, their action in doing so was unrelated to any duty under the 1967 Act. Reference was also made to the case of Clift v Slough Borough Council and another
[34]. It was an example of circumstances where the occasion was found not to have been protected by qualified privilege. The pursuer's averments were, it was submitted, sufficient to support a case of malice. Fraser v Mirza
[35] was relied on as having, it was said, "set the bar" and in that case there had only been one letter, not two. Under reference to the Continental Tyre case, it seemed to be being submitted that an inference of lack of honest belief could be

inferred in the present case from the terms of the communications alone. Reference was also made to the case of Anderson v SIA
[36] where it was held that there had been a breach of Article 6 by the Security Industry Authorities' suspension of certain licenses without affording the licence holders a fair hearing. Suspension had been determined on, on the basis of information provided by the police. In the present case the pursuer, similarly, did not have clear notice of the allegations against him. He ought to know precisely what was being alleged so he could answer it, and if appropriate, refute it. The letters contained only bald averments. It could not be good public administration for public bodies to go between themselves making vague irresoluble assertions about people. Matters required to be looked at in the round and it could not be said that the malice case could not succeed. Reference was also made to the cases of Gibbs v Rea, Paul v Chief Constable of Humberside
[37], Bryant v Edgar
[38] and O'Docherty v Renfrewshire Council
[39]. Regarding further procedure, it was submitted under reference to Nicol v Caledonian Newspapers that if the pursuer's case under the DPA was to be allowed to go through to a proof before answer then it was appropriate that the whole of the pursuer's case be allowed to go ahead since if the defender was in breach of some statutory duty, that might be relevant to the issue of malice.

DPA

[41] Turning to the pursuer's submissions relating to the DPA case, counsel submitted that the two letters could not naturally be read as indicating that the information on the police database was unendorsed by them. The references to the source of the information bolstered the credibility of the content of the information. The defender was not saying that there was information in their records although, it was added, the pursuer was not suggesting that the defender had concocted the information recorded. It was submitted that there was a fortress involving police information. The pursuer had no means of finding out why the records showed what they showed. The fourth data protection principle had been breached. The dignity of the subject was involved. There was a connection between the defamation case and the DPA case. The defender had a duty to keep his information up to date. The Act was concerned with the information not simply the data.

Common Law Claim

[42] Counsel for the pursuer did not specifically seek to defend the common law case. Whilst it was not entirely clear, it may be that their general submissions regarding the need to provide the pursuer with a remedy in relation to what were, at one stage, referred to as pernicious, unverifiable statements were intended to support it.

Conclusions for Declarator and Interdict

[43] The pursuer dealt with these matters but briefly and principally by posing a rhetorical question - why, even if there was no malice on these occasions, should the pursuer not have protection and a remedy in the future?

DISCUSSION AND DECISION

[44] The pursuer is concerned to establish that he is not and has not been a drug dealer or, as he puts it, "a career criminal". That is a shaky foundation for his case because the defender has not alleged or stated that he is or has been. All that the defender communicated in the two letters was that the pc database contained "intelligence" that the pursuer is involved in crime and has criminal associations. At no point in either letter did the defender endorse the beliefs of those who had provided that intelligence. On one view, that might be seen to render the pursuer's pleadings irrelevant in their entirety. The defender approached matters, however, understandably, so as to mount specific attacks, principally on the defamation and DPA cases.

Defamation

[45] Application of the relevant legal principles, as discussed above, means that it is necessary to examine the factual statements which are complained of, the circumstances in which those statements were made and whether there are any averments of other facts or circumstances which point to the statements having been made maliciously.

Privilege

[46] I am readily satisfied that, on the pursuer's own pleadings, the occasions on which the two letters were communicated were privileged ones. There can be no doubt that the communications upon which he relies were within the ambit of police duties; they were communications regarding relevant matters of public concern to public regulatory bodies. They were plainly sent by the defender, in furtherance of his public function, to assist or enable those two bodies to perform their public functions (see: Thorpe per Lord Bingham at p.409). They are not comparable to the letters sent by the DCI in the case of Wood. Rather, they are comparable to the communications which were said by Lord Justice Simon Brown "manifestly" to be privileged, in the case of Halford. I do not accept that any of the pursuer's arguments demonstrated anything other than that these were classic examples of privileged occasions.

[47] I should add that, despite the pursuer's vague averment of "continuing representations", he does not, on his pleadings, in fact rely on anything other than the sending of the two letters, as was confirmed in the course of his counsel's submissions.

Malice

[48] Turning to the issue of malice, I begin by observing that the decision to send the letters in the terms stated was a matter for the judgment of the defender. The pursuer accepts that the defender had intelligence relating to the pursuer. Whether or not to disclose it was a matter for his judgment. As discussed in the case of Van Colle, the law does not seek to inhibit such judgment; in principle, the police are to be left free to exercise their own judgment whether or not to disclose information given to them
[40]. It is, accordingly, against that background that the pursuer's case of malice falls to be assessed.

[49] I would add that, given that a finding of malice infers bad faith, it must be incumbent on a pursuer who seeks to assert it, to make clear averments in support of it. It cannot be right that a case should be allowed to go to proof on malice on bald averments which do not give fair notice of how and why it is that the pursuer says that the communications complained of were maliciously made. That is not to say that there may not be cases where malice could be inferred from the nature of the words used and the surrounding circumstances but if that is the pursuer's case, he requires to make that clear and his averments require to be capable of giving rise to such an inference.

[50] This is not, in my view, a case where the words communicated - which bear to do no more than repeat the intelligence held - could be said to be gross, improper or excessive in nature. Further, the words do not, contrary to what was suggested, state that the pursuer is or was a "career criminal". They could not themselves be demonstrative of malice. Not, I would add, that the pursuer avers that there was anything about the words themselves which was indicative of malice. I turn then to whether the pursuer has averred any other facts or circumstances amounting to a relevant case of malice - that is, facts or circumstances which could show that the defender was motivated by bad faith .

[51] The pursuer's express averments of malice are to be found in Article IV of Condescendence where he relies on the fact that he has not been charged, that he is not aware of being under investigation and that on 20 October 2009, there was a conversation between him, a journalist and a police officer, in general terms, about intelligence and evidence. I do not accept that these factors whether singly or together could be capable of giving rise to an inference of malice. Databases kept by the police commonly contain intelligence held in relation to persons who have not been charged with any crime. Communication of such intelligence is normal in various circumstances including, for instance, for 'Enhanced Disclosure' purposes
[41] and in Halford, the fact that the communications were made in the course of normal and appropriate police work was regarded as destructive of the plaintiff's case of malice (a 'fragile' case of spite on the part of the policeman having been rejected).

The pursuer's counsel accepted that, in principle, the defender was entitled to make the communications which he did. As for the pursuer's averments that he is unaware of being under investigation, that says nothing about the defender's state of mind or intentions in relation to the two letters.

[52] Turning to the pursuer's averments in Article III of Condescendence about the first letter, they do not, in my view, support a relevant case of malice either. They are not pled as such. Moreover, without specification of any basis on which the defender could be said to have known that the contents of the letter would become known outside the members of the committee, the pursuer must be regarded as perilling his case on the weaker "ought to have known" averment yet he makes no averments at all as a basis for that assertion. Further, as indicated above, on his averments, any decision to disseminate any of the contents of the letter was the committee's decision, not the defender's. That is not to say that the pursuer avers that the terms of the letter were made public at the meeting; he does not.

[53] I should add that the pursuer also has averments in his common law and DPA cases, to the effect that the defender has issued findings that he has been convicted of a serious crime (Article VI of Condescendence). However, the two letters (which are all that he relies on for the basis of that averment) cannot, on any view, be read as containing any such findings.

[54] The pursuer's overall approach appeared to be that the circumstances were that if the police had the power to disclose damaging information then they were more powerful than the court, that that was chilling and that the pursuer should be allowed to discuss and explore matters at proof. That submission does not, however, in way assist him in demonstrating that he has pled a relevant case, which I am satisfied he has not done. I should add that I do not accept that those authorities referred to by the pursuer's counsel to which I have not referred in the 'Relevant Law' section above, assist him either. I accept the defender's submissions, as above noted, that they are not in point.

[55] In these circumstances, I conclude that the pursuer has not averred a relevant case of actionable defamation.

DPA

[56] I am satisfied that the pursuer's case of breach of the DPA is wholly misconceived. It proceeds on the basis that a data controller has a duty to investigate the credibility and reliability of the information which he holds but that is to misunderstand the relevant statutory provisions. 'Personal data' within the meaning of DPA is a wide and general term which covers all information held that relates to an individual, including expressions of opinion. Opinions are, of course, not matters of fact and are matters about which people may disagree, sometimes vehemently. Thus, the statute envisages records being kept not only of factual matters but of a range of types of information relating to individuals.

[57] One of the concerns of the legislation is accuracy of the information but nowhere is it provided that the data controller has a duty to investigate whether the information with which he has been provided is correct. Where a person such as the defender keeps records of what is said by one or more persons about other persons - "data subjects" - it is personal data under section 1(1) of DPA
[42]. The fourth data protection principle requires that it be accurate and, where necessary, kept up to date. Thus, if information "X" relating to a data subject has been provided to the data controller, he has a duty to record "X" and he, instead, recorded "Y", he would be in breach of the fourth principle. Similarly, if it came to his knowledge that the information about the data subject, whilst originally "X" , had come to be "Y", he would have a duty to amend his record. The Information Commissioner's guide also provides a useful example of accuracy for DPA purposes in the context of a record being kept of a rumour. The retention by the police of a record of intelligence is directly comparable. It would be a breach of the fourth principle if the data showed that the data subject had in fact done what was alleged but no breach where it showed that the police had received intelligence that he had carried out or been involved in the acts referred to.

[58] If reassurance of the absence of any statutory duty to investigate the veracity of allegations recorded were required, it is provided, in my view, by paragraph 7 of Schedule 1. Whilst the data controller is required to record the data subject's view that the data held by him are inaccurate, he is not required to amend his data nor is he required to investigate whether or not the data subject is correct in his assertions.

[59] Here, in the two letters complained of, the defender reports content of intelligence provided to him. He does not assert that the intelligence is true. He does not endorse the allegations referred to. There is no basis for averring, as the pursuer does, that his letters amount to a finding that the pursuer has in fact committed crimes and is a career criminal. It is not averred that the defender holds no such intelligence. It is not averred that the intelligence that he holds is in fact other than the defender states it to be. The pursuer's case is, simply, that he has not committed crimes and is not a career criminal but that is, for DPA purposes, beside the point. He has pled no relevant DPA case.

Common Law case

[60] I can deal with this briefly. The defender's submissions that the pursuer makes no averments of a relationship existing which would give rise to a duty of confidentiality were really not countered on the pursuer's behalf. There is nothing in the pleadings which could be relied on to do so. No relevant case is pled at common law.

Declarator and Interdict

[61] Dealing with the declarator first, this court could not competently pronounce a declarator that the pursuer was not involved in criminal activity: Law Hospital NHS Trust v Lord Advocate
[43]. It would be outwith its jurisdiction to pronounce a declarator of non-criminality. In any event, the court could not pronounce a declarator that a particular state of affairs regarding voluntary human activity - which could alter at any time - not only existed as at the date of its declarator but would, in all time coming, exist. That, however, is what the pursuer seems to seek.

[62] Turning to the conclusion for interdict, it follows from my finding that the pursuer has no relevant case of defamation that he would not be entitled to such interdict but I would, in addition, reject the pursuer's contention that somehow, even if malice were not established, the pursuer might be entitled to interdict. That seemed to be on the basis that he might be defamed at some future date but he has no averments on which any such case could be based.

Disposal

[63] I will, in these circumstances, pronounce an interlocutor sustaining the defender's first plea in law and dismissing the claim. I will reserve, meantime, all questions of expenses.