United Kingdom House of Lords Decisions

At delivering judgment, on 25th February 1993:

LORD KEITH OF KINKEL —My Lords, this is an action of damages for defamation at the instance of a police officer in the Strathclyde Police Force against an individual who had written a letter to the Chief Constable complaining of his conduct.

The facts are that on 5th January 1984 the pursuer, the appellant in this House, arrested the defender and charged him with the reset of two television sets. The defender was later prosecuted by the procurator fiscal in Glasgow Sheriff Court. On 20th June 1985 the sheriff found the charges not proven. On 20th January 1986 the defender, who is a prominent member of the Pakistani community in Glasgow and a justice of the peace, sent to the Chief Constable of Strathclyde a letter in these terms:

"Dear Sir,

"I want to draw your kind attention regarding my case which I was charged on 5th Jan 1984 for reset of Televisions by D.C. FRASER and other D.C.

"I appreciate that they did their duty and try to bring the case for justice.

"But in my case D.C. Fraser and other D.C. accompanied by him did exceed their power. Authority and exaggerated my case.

"(1) When I was charged and taken to Pollok Police Station, I requested to both Detectives that I want to give my statement in writting but refused. "

"(2) Televisions in my possession were given with out hesitation. After handing over the Televisions I was kept in police cell about 4 Hours. "

"(3) They phoned to my employer same day that I was charged for reset. "

"(4) They went to my Assistant Miss Ellen O'Connors, 535 Eglinton Street at present address 9 MYRTL PL Glasgow GS12, house and told her and mother that Mr Mirza is not coming back. She should find another job. "

"(5) They went to Shaukat Hussian House and threaten him and told him you are telling lies. Even his wife was threatened while he was away to Pakistan. "

"(6) D.C. Fraser also told me that Daily Record Reporter is asking this case. "

"D.C. Fraser & other D.C. were not after the case (justice) but they were after my name, Job, My Colour and Justice of the Peace. "May please be investigated this case as I am providing names and Addresses of those person who can give you all information in detail.

1. (1) MR SHAUKAT HUSSIAN 664 Eglinton Street G5

2. (2) MR MASOOD AKHTAR, 6 Roukenburn Street g46

3. (3) MISS FLORA BALLANTYNE 6 Roukenburn Street G/L

4. (4) Mr Masood may provide the Samee's Address.

"Above mentioned name were threatened by D.C. FRASER

"Thanking you

"Yours sincerely

"M. H. Mirza"

The sentence which follows the numbered paragraph (6) may conveniently be referred to as the "justice" sentence. On 1st May 1986 the appellant's solicitor wrote to the respondent intimating a claim for defamation, in particular in respect of the "complaint that Mr Fraser acted in this manner because of racial prejudice and because of your position as justice of the peace". On 9th May 1986 the respondent's solicitor replied that he had no intention of withdrawing the complaint. On 23rd May 1986 the Chief Constable intimated that no action would be taken on the complaint.

The appellant raised the present action on 19th January 1989, claiming damages of £5,000 as reparation for defamation. In condescendence 4 of the summons the appellant averred inter alia that in the letter complained of the defender alleged that the pursuer "only charged the defender with said criminal offences because the defender was of Asian origin and a justice of the peace". The respondent did not plead veritas but he claimed qualified privilege. However, the appellant averred in condescendence 5 that the defender made the allegations maliciously. A proof took place before Lord Marnoch. Counsel for the appellant at first argued that the occasion was not privileged but eventually conceded that it was. Since the respondent did not dispute that the letter was defamatory the only issue came to be whether the plea of qualified privilege was defeated by express malice. The Lord Ordinary held that it was, and he awarded damages of £5,000, the sum sued for. On all important disputed issues of fact (and many unimportant ones) the Lord Ordinary preferred the evidence for the appellant to that of the respondent. Indeed he gave the respondent a broad certificate of no credibility. He found the following significant facts to be proved: (i) that the statement in para. (2) of the respondent's letter, that he had given up the television sets without hesitation, was untrue; (ii) that the allegation in para. (5) of the letter, that the appellant had threatened Shaukat Hussain, was untrue; (iii) that the respondent's intention in making the statement that "D.C. Fraser and other D.C. were not after the case (justice) but they were after my name, Job, My Colour and Justice of the Peace" was to convey the meaning that the appellant and the other police officers had had no evidence of any kind justifying the charges laid against him; and (iv) that the respondent knew at the time when he wrote the letter that it was not true that the appellant and other police officer had no such evidence.

The finding (iii) arose out of certain passages in the evidence of the respondent. In the course of examination in chief he was asked, "Are you suggesting in any way that the police officers did not have any kind of evidence to bring any kind of prosecution against you?" It is clear that counsel was expecting a negative answer to this question and indeed counsel for the appellant objected to the question as leading. However, the Lord Ordinary allowed the question, and no doubt to everyone's surprise, the respondent answered it, "Yes". Then in the cross-examination of the respondent there is this passage:

"So for the rest of my cross-examination can I proceed upon the basis that having sat through the criminal trial and having sat throughout the evidence in this proof, you still have the belief that there was no evidence against you recovered by the police officers in the course of their investigation?—Yes, still I feel that.

"

Does that not mean that in making these allegations against Constable Fraser and his colleague, you were alleging that in the absence of any evidence they were after your case merely because you were called ‘Mr Mirza’ and you were a Post Office employee, you were of a certain colour and you were a justice of the peace?—Yes.

"That is what you claim to believe?—That's right."

The Lord Ordinary did not accept that the respondent had an honest belief in the truth of what he intended to convey. This was largely based on his finding about the untruth of the statement that the respondent had given up the two television sets without hesitation. The Lord Ordinary's examination of the evidence showed that this was very far from being the case, so that the statement must have been deliberately untrue. Clearly the circumstances under which the television sets were eventually recovered were extremely significant from the point of view of whether there was evidence upon which the respondent might properly be charged with reset, and the Lord Ordinary regarded this false statement as in itself intended to convey that the appellant had no reasonable grounds for charging the respondent. Its deliberate falsity indicated that the respondent had no honest belief in the truth of that allegation. So the Lord Ordinary held that the plea of qualified privilege was rebutted by proof of express malice, established by evidence that the respondent had intended to tell deliberate untruths. Counsel for the respondent argued that his intention was irrelevant; what mattered was the meaning of the defamatory statements objectively construed according to the natural and ordinary meaning of words, that being so construed the "justice" sentence of the letter meant not that the appellant had no evidence upon which he might properly charge the respondent with reset but merely that in doing so he was actuated to some extent by racial prejudice and the fact of the respondent being a justice of the peace, and further that the respondent honestly believed that to be so. The Lord Ordinary, however, held that even reading the sentence in that limited sense the respondent had no honest belief in its truth.

The respondent reclaimed, and the reclaiming motion was heard by the Second Division of the Inner House (the Lord Justice-Clerk, Lord Ross, Lord Murray and Lord Milligan), who on 27th December 1991 allowed it and recalled the interlocutors of the Lord Ordinary (1992 S.C. 150). The appellant now appeals to your Lordships' House.

The opinion of the Lord Justice-Clerk stated two separate grounds for finding in the respondent's favour. His reasoning on the first ground proceeded on these lines: the "justice" sentence in the respondent's letter implied that the charges against him would not have been made if the respondent had not been of Asian origin and a justice of the peace, but did not carry the further implication that the appellant had no evidence justifying the charges; the Lord Ordinary was therefore wrong in holding that the letter carried such an implication, and in any event it had not been pleaded by the appellant; that although the letter was defamatory in alleging that the appellant had been actuated by racial and other prejudice, that was not the appellant's real complaint, which was that the respondent had alleged that he had had no reasonable grounds for charging the respondent: and that since the terms of the letter did not support any such innuendo, that was the end of the case. In my opinion that ground for the decision is quite unsupportable. The appellant was complaining about the allegation of prejudice, whether or not he was also complaining about an allegation that he had charged the respondent without any evidence to warrant it. He was also complaining about the allegation of threats to witnesses.

The second ground for the Lord Justice-Clerk's decision was that although the Lord Ordinary's finding that the respondent's statement in the letter about giving up the television sets was knowingly untrue entitled him to hold that that statement was made maliciously, the statement did not have a defamatory meaning, because it did not support the innuendo that the appellant had no reasonable grounds for charging the respondent; and that although the "justice" sentence contained a defamatory allegation of prejudice it was not established in the evidence that the respondent knew that allegation to be untrue; so in relation to that particular allegation there was no evidence of malice. Both Lord Murray and Lord Milligan agreed with the Lord Justice-Clerk that the restricted meaning of the "justice" sentence in the letter was the correct one, and that in relation to the conveying of that meaning malice had not been proved.

In his submission to the Appellate Committee senior counsel for the appellant accepted that the "justice" sentence in the letter bore the restricted meaning found by the Inner House. He argued, however, that while an allegedly defamatory statement falls to be construed objectively by reference to the ordinary and natural meaning of words, the question whether it was made maliciously depends upon the ascertainment of the subjective state of mind of the maker of the statement at the time it was made. The question was whether the respondent wrote what he did to the Chief Constable in pursuance of a duty or to protect a legitimate interest, or from a desire to injure the appellant. The circumstance that the respondent told at least one untruth in the letter (about giving up the television sets without hesitation) and that he intended to tell another which he knew to be untrue (namely that the appellant had no evidence to warrant charging him), indicated that he was not acting in pursuance of a duty or to protect an interest but out of a desire to injure the appellant. Malice on his part had thus been established, and it was not relevant that the defamatory allegation which he actually conveyed was less serious than that which he had intended to convey. The judges of the Second Division had fallen into error in holding it necessary for the appellant to prove malice specifically related to the defamatory meaning actually conveyed. It was further argued that in any event the Lord Ordinary had found that the respondent had no honest belief even in the truth of the defamatory allegation borne by the "justice" sentence on the restricted interpretation of it, a point apparently overlooked in the Inner House. Finally, it was argued that the Lord Ordinary's finding that the allegation that the appellant had threatened witnesses was "simply untrue" amounted to a finding that the respondent had acted maliciously in making that allegation. This point also was not addressed by the Second Division.

In Horrocks v. Lowe [1975] A.C. 135, Lord Diplock said at pp. 149–150:

"My Lords, as a general rule English law gives effect to the ninth commandment that a man shall not speak evil falsely of his neighbour. It supplies a temporal sanction: if he cannot prove that defamatory matter which he published was true, he is liable in damages to whomever he has defamed, except where the publication is oral only, causes no damage and falls outside the categories of slander actionable per se. 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. With some exceptions which are irrelevant to the instant appeal, the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit—the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.

"

So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. ‘Express malice’ is a term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege 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. If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person." The occasion upon which the respondent wrote his letter to the Chief Constable was that of a citizen making a complaint about the conduct of a police officer. If the citizen has grounds for making such a complaint he has a duty, which can properly be described as a public duty, to make these grounds known to the appropriate authority. So the occasion here was a privileged one, and the appellant accepts that. The question is whether the respondent, to use Lord Diplock's words, "misused" the occasion. It was for the appellant to prove that he did so. Such proof involved that it should be established that the respondent was actuated by some improper motive which was dominant in his mind. That is what is meant by express malice. The motive with which a person made a defamatory communication can only be ascertained from an examination of his state of mind at the time he made it, which as Lord Diplock said, can only be inferred from what he did or said or knew. In this case the respondent knew that he did not give up the television sets without hesitation, but he wrote that he did. It is an unusual feature of the case that according to his own evidence the respondent intended by his letter to convey that the appellant had charged him with reset without having any evidence to warrant that course. It is now accepted by the appellant that upon its true construction the letter did not bear that meaning, but that meaning is nevertheless capable of being regarded as a possible one. In the circumstances I am of opinion that the respondent's intentions in respect of what he was trying to convey by the letter are properly to be taken into account for the purpose of ascertaining what was the dominant motive operating on his mind at the time he wrote it. The Lord Ordinary found that the respondent had no belief in the truth of that aspect of the defamatory allegations he was seeking to convey. Absence of belief in the truth of a defamatory allegation actually conveyed, is, as Lord Diplock said, usually conclusive evidence of improper motive amounting to express malice. There is no valid reason for not holding that the same inference is necessarily to be drawn where the maker of the communication is proved to have intended by it to convey a defamatory allegation in the truth of which he did not believe, but which on a proper construction of the communication it is found not to bear. In each case a similar light is shed on the state of mind of the maker of the communication. If then the communication is found to bear some untrue defamatory allegation, albeit not as serious as the maker of it intended, then the qualified privilege is lost, because the occasion giving rise to it has been misused. The allegation here of prejudice against the respondent, for racial and other reasons, was without doubt seriously defamatory.

That is sufficient for the conclusion that the appellant must succeed in this appeal. But it is to be observed that the Lord Ordinary made a clear finding, having considered the relevant parts of the evidence with care, that the respondent had no honest belief even in the allegation that the appellant was actuated by prejudice. The Lord Justice-Clerk said in the course of his opinion (1992 S.C. at p. 168) that it was not established in the evidence that the respondent knew that it was false to state that the appellant was actuated by prejudice. He did not make any examination of the grounds upon which the Lord Ordinary came to a contrary conclusion. In this case it must have been a considerable advantage for the Lord Ordinary to have seen and heard the respondent in the witness box, an experience which led him to reject the respondent as a credible witness upon all matters of importance. In the circumstances the Lord Ordinary was well entitled to make the finding he did.

As regards the allegations of threats against the witnesses there was evidence that the respondent was informed that the appellant had warned witnesses that if they did not tell the truth they might get into serious trouble and even go to jail. Whether or not the respondent was correct to describe this as the making of threats is not of great significance. The respondent's motive in sending the letter was to injure the appellant, and he thereby abused the privileged occasion. The letter contained quite sufficient defamatory matter to entitle the appellant to substantial damages quite apart from the allegation of threats.

My Lords, for these reasons I would allow the appeal and restore the interlocutor of the Lord Ordinary.

Counsel for the respondent sought to maintain that the arguments advanced by counsel for the appellant were such as could and should have been but were not relied on before the Inner House, and that this ought to be reflected in any award of expenses and costs. The position is that the respondent reclaimed against the Lord Ordinary's decision and succeeded in obtaining before the Inner House a contrary decision which he should not have obtained, thus necessitating the present appeal. It is not apparent that the appellant's counsel could have succeeded by any means in averting the errors into which the Second Division fell. In addition, a large part of the argument there was concerned with whether want of probable cause in making the publication required to be proved by the appellant. The respondent failed on that issue and did not take it up again before your Lordships' House. In all the circumstances the respondent must pay the whole of the appellant's expenses before the Inner House and his costs in this House.

LORD GOFF OF CHIEVELEY —My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Keith of Kinkel. For the reasons he gives I too would allow the appeal.

LORD JAUNCEY OF TULLICHETTLE —My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Keith of Kinkel. For the reasons he gives I too would allow the appeal.

LORD SLYNN OF HADLEY —My Lords, I have had the opportunity of considering in draft the speech prepared by my noble and learned friend Lord Keith of Kinkel. I agree that for the reasons he gives this appeal should be allowed and an order for costs be made in the terms he indicates.

LORD WOOLF —My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Keith of Kinkel. For the reasons he gives I too would allow the appeal.