Clift v Slough Borough Council [2009] EWHC 1550 considers the extent to which a local authority has an interest or duty to pass on allegations about anti-social behaviour to its employees and contractors for the purposes of the defence of qualified to a claim for defamation. It is also an example of the all too common situation of a victim being targeted as a perpetrator.
Background
On the morning of 11 August 2005 Mrs Clift witnessed a group of five people in the public park drinking. A child of about 3 years of age was pulling plants up from a flower bed and damaging other plants. Ms Clift protested at this behaviour and was herself threatened by one of the men. In addition he himself trampled the flower bed in response to her intervention.
Mrs Clift called the police and the parks department. She was referred to the council who she telephoned. The conversation “went badly” with the council officer threatening to terminate the call, although it was in fact ended by Mrs Clift. She wrote a letter of complaint explaining how upset she was about the handling matter. In the letter she said (referring the the council officer):
“…I felt so affronted and filled with anger that I am certain that I would have physically attacked her if she had been anywhere near me. I truly am not of that nature and so, surely, this should act as a wake up call to the Borough as to the capacity she has for offending people….”
Rather than trying to address the underlying problem (the anti-social behaviour directed against C and her unhappiness that it had not been properly addressed) the council’s Head of Public Protection (Mr Kelleher) investigated the incident itself and decided to enter Mrs Clift’s name in the “Violent Person Register”. She was rated as medium risk, her name to remain on the register for 18 months. The reason being noted as “threatening behaviour on several occasions” together with some inaccurate particulars of the incident.
By way of comparison, another entry on the register of medium risk referred to someone who had prevented a council representative from leaving premises for a period of 2 hours.
Mr Kelleher had circulated an email to 54 individuals stating:
“I have requested that Jane Clift’s name be added to the register of violent persons following repeated threats of violence towards a member of staff.
Whilst we will continue to provide her with our normal range of services, I would ask that any officer making a site visit, or conducting a face to face interview with Ms Clift does so in the presence of an accompanying officer. Equally, any member of staff receiving a telephone call from Ms Clift should make a full note of that conversation including Ms Clift’s manner”.
A hard copy was also sent to 12 council community wardens. The Register itself was circulated – though precisely how and to whom was unclear to the court. Evidence from Slough suggested that there would not have been more than 150 recipients of the Register but the exact number was not an issue left to the jury.
Mrs Clift was, unsurprisingly, unhappy about this and eventually brought proceedings under the Data Protection Act in the county court and a further claim for libel. The DPA claim was stayed pending the determination of the libel action.
Mrs Clift alleged that the register entry meant that she was a violent person who had engaged in threatening behaviour on a number of occasions. Slough defended on two grounds: (1) justification, that is that Mrs Clift was a violent person etc; and (2) qualified privilege. Mrs Clift replied by alleging malice on behalf of Mr Kelleher.
The jury found in favour of Mrs Clift, awarding her £12,000 in damages, but found that there was no malice.
Qualified Privilege
The most interesting part of the case concerned the defence of qualified privilege. For those readers who do not regularly deal with claims of defamation, some explanation is in order. “Qualified privilege” is a defence to defamation on the basis that the defendant had a duty or interest to make the statement to someone who had a duty or interest in receiving it.
Slough defended: justification (i.e. was true – C was a violent person etc) and qualified privilege – on which more later. C replied alleging malice (on which more too). In the words of Lord Atkinson in Adam v.Ward [1917] AC 309 at 334.
“A privileged occasion is …. an occasion where the person who makes the communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. The reciprocity is essential”.
Qualified privilege is not an absolute defence. It is defeated if the claimant is able to show “malice” which has a rather technical meaning, namely that the maker of the statement had no honest belief in the truth of the statement made, or that it was made for an improper motive.
The question the court had to consider was the extent of the defence. In other words: with whom was the council under a duty to communicate?
In Kearns v General Council of the Bar [2003] EWCA Civ 331, the Court of Appeal contrasted a situation where there was a recognised existing relationship between the parties, in which case the qualified privilege question of duty/interest would not be fact sensitive from a situation where there was no such recognised relationship in which case the particular circumstances surrounding the individual publication would have to be investigated.
The judge had followed Kearns in W v Westminster City Council [2005] EWHC 105 concerning the publication of words contained in a report made for the purposes of the Children Act which, employees of the council admitted, should not have been published but that publication had occurred because of a mistake and misunderstanding on their part. The judge had ruled that whether or not the publication should have taken place was irrelevant because there existed a recognised existing relationship which engaged qualified privilege irrespective of the factual details of a publication.
Although the defamation claim failed in Westminster City Council there was a separate claim under the Human Rights Act 1998. In the human rights claim, the judge found that there was an interference with the claimant’s Article 8 rights because the information was highly sensitive and potentially very damaging to him.
A decision of the Court of Appeal that was not cited in Westminster was Wood v Chief Constable of the West Midlands Police [2003] EWHC 2971 (QB). In Wood Lord Bingham CJ said:
the police, as a public body, ought not generally to disclose information which comes into their possession relating to a member of the public, being information not generally available and potentially damaging to that member of the public, except for the purpose of and to the extent necessary for the performance of their public duty. The principle rests on a fundamental rule of good public administration which the law must recognise.
…
The question is whether the occasions of publication were privileged. That said, a decision to publish information which may be untrue may well call for even greater care than a decision to publish information which is known to be true.
Wood concerned information that had been published before the coming into force of the Human Rights Act or the Data Protection Act. The judge thought that it indicated that different principles applied, even at common law, to the consideration by a public body to publish potentially damaging information. Of course Kearns did not concern publication by a public body, but the judge thought that if there was a contradiction between Kearns and Wood he would be bound to follow Wood.
No Human Rights claim was brought by Mrs Clift, but her Reply was amended so as to rely on the Human Rights Act to counter the defence of qualified privilege. The judge thought that, in particular as a result of the guidance in Huang v Home Secretary [2007] 2 AC 167, the Human Rights Act did require that the court engaged in a factual enquiry to consider whether the extent of each publication by the defendant was proportionate, despite the existence of a recognised existing relationship which, on the authority of Kearns would normally preclude such an investigation.
The judge found that qualified privilege did exist in the publication to customer facing staff and managers in Trading Standards, Neighbourhood Enforcement and Community Safety but not in Licencing, Food and Safety, Children and Education Services nor to Community Wardens, Trade Union Officials and anyone in the four partner organisations outside the council. That exclusion had an effect on damages since publications on occasions of qualified privilege would be excluded except where malice was shown.
Conclusion
I think this case does have some relevance to housing law. It touches on a situation that (in my experience anyway) comes up in practice where a client has information about them, possibly highly prejudicial to them, shared between organisations. The case requires an authority to consider the proportionality of that distribution lest it be vulnerable to a claim for defamation. No HRA claim was brought, so this decision is, strictly speaking, confined to a claim for defamation, but in my view the reasoning on the duty of public bodies has wider application.
In practical terms it means that public bodies should be rather more careful about keeping records of alleged criminality or anti-social behaviour and about any distribution of those records. That, in my view, can only be a good thing. Calling a document a “Violent Persons Register” if you know full well that some of those persons have never used violence.
On a very personal note: I think this case sadly illustrates a trend in official behaviour which emphasizes the protection of staff to the detriment of its service to the community. Where officials behave badly, incompetently or insensitively they often provoke angry and vigorous responses from members of the public. This is unsurprising, it is far easier to stay calm when dispensing (in)justice than when trying to obtain it. I suspect most readers will at some time or another have wished the person they were speaking to would drop dead but that does not make us all murderers.
What went wrong here was that Mrs Clift was a victim. She appears never to have had any useful official action concerning the criminal acts she witnessed and that were directed against her. If (and the evidence does not suggest this was the case) she had been impolite to the council employee she spoke to, that does not disentitle her to the protection of the law. Slough ought to have considered whether the way it manages complaints of this kind contributed to what happened and done something about it. The mantra of protection of staff should not excuse all.
I would like to think lessons have been learned but I suspect they have not.