Comments on: Defamation and anti-social behaviour

By: NJ

NJ — Mon, 20 Jul 2009 11:06:25 +0000

Putting aside the issue of distribution (clearly the list of recipients was determined simply by convenience and common practice rather than any specific need) it appears to me that it is the wording of the entry on the register as well as that in the accompanying email that is essential in this case. By simply using the term “threatnening behaviour” and rating it as medium risk, it does seem that this oversteps the test of proportionality. This is made much worse when in the email, the defendant then refers to “repeated threats of violence towards a member of staff”.
So a comment made by Clift that could give cause for concern as to the safety of staff, was therefore “transformed” to indicate a threat of violence had actually been made on more than one occasion. There is also the issue of the name of the register itself, which as was pointed out, omits the word “potential” which is very relevant here. I believe that this was the crux of the jury award and that had Slough been more careful with its wording and rating of the entry and also its distribution, they would not have had a problem. The jury did not find malice and it is unhelpful to suggest (as above) that this was the motivation. How would anyone feel if they had ignored Clift’s comments only to later find that a member of staff was assaulted by her.

By: simply wondered

simply wondered — Thu, 16 Jul 2009 23:50:50 +0000

indeed, i take your point. maybe we just threaten people differently!

By: Francis Davey

Francis Davey — Thu, 16 Jul 2009 11:16:06 +0000

@Simply – ah, interesting comment, to me a “threat” is something that states that an unpleasant consequence will be contingent on some future action (usually a choice of the person threatened). To say “if I’d had my gun with me I’d have shot you” is not a threat as I understand it, because the interlocutor is not threatened. There is no future contingency that they need concern themselves with. There may be implied threats, but that is another matter. Obviously we understand the term differently.

As to the question of malice – you may well be right, but we’ll never know I suspect.

By: simply wondered

simply wondered — Thu, 16 Jul 2009 09:53:45 +0000

turberville v savage is about what constitutes assault rather than a threat per se isn’t it? because the statement ‘if it weren’t assize time etc’ clearly IS a threat. it defines the mens rea for assault as requiring intention even when there is physical contact.

i would have found malice – there can be no honest belief in the truth of the publication. it was so obviously done to take revenge on someone who complained to yer classic ‘i’ve been trained to say ‘you’re being aggressive and i’m terminating this conversation’ rather than taking proper action’ council. malice on 2 grounds: no honest belief in the violence of the claimant and no honest belief that this had happened on a number of occasions. horrocks v lowe held that:
‘to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication’. i would have found that the defendant’s dominant motive was the time-honoured practice of arse-covering and blame-shifting. injure the trouble-maker and reduce the likelihood of complaint.

By: Michael

Michael — Wed, 15 Jul 2009 22:27:22 +0000

I thought the jury weren’t given the opportunity to find on the justification defence?

[Rest of the comment deleted by NL]

By: Francis Davey

Francis Davey — Wed, 15 Jul 2009 22:18:02 +0000

@Michael: On justification: my mistake, I drafted this very late at night. The jury found for the Claimant which meant they rejected the Defendant’s contention that “she was a violent person who had engaged in threatening behaviour on a number of occasions”. Since she does not appear to have threatened anyone at any time, that seems a reasonable conclusion. There’s certainly no evidence she was violent.

There’s no question about what is, or is not, “acceptable”. The Claimant was not on trial. The Defendant wrote things that were untrue and defamatory about her and distributed them to people who had no real interest in being sent material of that kind. As a result they lost and paid damages. Justice done on that point.

The Claimant never did threaten anyone. Have a read of Turbeville v Savage to see what does, and does not, consist of a threat.

As for the people in the park – clearly they don’t know how to live in a civilised society. What you do about such people who are not better than animals, I don’t know. I wouldn’t pretend to have an opinion and its not for me to judge.

By: Francis Davey

Francis Davey — Wed, 15 Jul 2009 13:24:29 +0000

From the report: she didn’t, she approached its parents/carers and not (it would appear) with violence. The jury found against the plea of justification which included the allegation that she was a violent person.

By: Derek

Derek — Wed, 15 Jul 2009 11:44:34 +0000

“…I am certain that I would have physically attacked her if she had been anywhere near me… this should act as a wake up call to the Borough….”

I wonder how she approached the 3 year old mucking about in the flower bed.

By: J

Wed, 15 Jul 2009 07:07:16 +0000

I agree – sadly, this is all to common a a factual scenario. I wonder if Mrs Clift complained to the Local Government Ombudsman?