Fraser v Mirza
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Goff of Chieveley,Lord Jauncey of Tullichettel,Lord Slynn of Hadley,Lord Woolf |
| Judgment Date | 25 February 1993 |
| Judgment citation (vLex) | [1993] UKHL J0225-1 |
| Docket Number | No. 3 |
| Court | House of Lords |
| Date | 25 February 1993 |
[1993] UKHL J0225-1
House of Lords
Lord Keith of Kinkel
Lord Goff of Chieveley
Lord Jauncey of Tullichettle
Lord Slynn of Hadley
Lord Woolf
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 5 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 20 June 1985 the Sheriff found the charges not proven. On 20 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) MR SHAUKAT HUSSIAN 664 Eglinton Street G5
(2) MR MASOOD AKHTAR, 6 Roukenburn Street g46
(3) MISS FLORA BALLANTYNE 6 Roukenburn Street G/L
(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 1 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 9 May 1986 the respondent's solicitor replied that he had no intention of withdrawing the complaint. On 23 May 1986 the Chief Constable intimated that no action would be taken on the complaint.
The appellant raised the present action on 19 January 1989, claiming damages of £5000 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 £5000, 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 paragraph (2) of the respondent's letter, that he had given up the television sets without hesitation, was untrue: (ii) that the allegation in paragraph (5) of the letter, that the appellant had threatened Shaukat Hussain, was untrue (iii) that 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...
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