Fraser v Mirza
| Jurisdiction | Scotland |
| Judgment Date | 27 December 1991 |
| Date | 27 December 1991 |
| Docket Number | No. 16. |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Lord Marnoch.
Damages—Award of damages—Defamation—Improper conduct of police officer—Whether amount excessive.
Practice—Reparation—Defamation—Qualified privilege—False complaint against police officer—Averments—No averment of innuendo—Whether words complained of defamatory—Pursuer basing claim on defender using words containing innuendo that pursuer and fellow police officer had no reasonable grounds for charging defender with criminal offence—Whether words complained of supported that innuendo—Whether necessary to prove malice and want of probable cause.
A police officer brought an action claiming damages in respect of alleged defamatory statements made in a letter from the defender to the Chief Constable. The defender, who was a prominent member of the Pakistani community and a justice of the peace, had been charged by the pursuer and another officer with the reset of two television sets. The charges were eventually found not proven. The alleged defamatory statements included an allegation that the pursuer and a fellow officer "were not after the case (justice) but they were after my name, Job, my Colour and Justice of the Peace." No averment of innuendo was pled. The pursuer claimed that the defender had used words containing the innuendo that the two officers had had no reasonable grounds for charging the defender with reset. In evidence, the defender affirmed that his intention in using those words was, in effect, to convey that meaning. At the proof the pursuer accepted that the occasion in question had been privileged and malice would have to be established. He argued that such malice could be established by virtue of the defender publishing the statements when he knew them to be untrue. The Lord Ordinary (Marnoch) held that the statements were not only untrue but were known by the defender to be untrue at the time he made the complaint to the Chief Constable and awarded damages to the pursuer in the sum of £5000. The defender reclaimed to the Inner House.
Held (1) that in determining whether the words complained of could carry a defamatory meaning the rules were: (a) the matter must be tested objectively and the words given their ordinary and natural meaning; (b) the construction is not to be determined by the meaning intended by the person who published the words; (c) the publication must be read as a whole; (d) if an innuendo is to be relied on, then it must be clearly pleaded; (2) that the Lord Ordinary had erred in attaching weight to the defender's intention as expressed in his evidence so that the matter was at large for the appeal court; (3) that once qualified privilege had been conceded the pursuer could only succeed if he proved (a) that the statement was in fact defamatory; and (b) that there was malice referable to the defamatory meaning concerned; (4) that, applying the proper test, although the ordinary and natural meaning of the words used was that the pursuer and his fellow officer had acted as they did because of the defender's racial origin, they did not support the innuendo which formed the basis of the pursuer's claim; and (5) (Lord Murray dissenting) that, in any event, it was fatal to the pursuer's claim that no innuendo in those terms had, in fact, been pled; and reclaiming motion allowed.
Opinion that the ordinary and natural meaning of what was said in the letter was defamatory but no malice had been established in respect of that defamatory material.
Observations, per the Lord Justice-Clerk (Ross) and Lord Milligan on cases requiring averments of lack of probable cause.
Leslie Fraser, a detective constable with the Strathclyde Police Force, brought an action against Mohammed Mirza in which he concluded for £5000 damages for alleged defamation.
The parties averred, inter alia, that:—"COND. 2. On or about 5th January 1984 the pursuer, while acting in the course of his duties as a police officer, detained the defender at the house of one Shaukat Hussein at 664 Eglinton Street, Glasgow, in terms of sec. 2 of the Criminal Justice (Scotland) Act 1980 and thereafter took him to Pollok police station, Glasgow. At said police station the defender was cautioned and charged with the reset of a colour television set, stand and remote control unit in the dwelling house occupied by him at 98 Old Dumbarton Road, Glasgow, or elsewhere. Subsequently that day he was released from detention. Thereafter, on or about 7th January 1984, the pursuer while acting in the course of his duties as a police officer, arrested the defender at the post office and took him to Pollok police station, Glasgow. At said police station the defender was cautioned and charged with the reset of another coloured television set and stand in the dwelling house occupied by Livingstone at 61 Hopeman Street, Glasgow. After consultation between the pursuer and Mr Griffiths in the procurator fiscal's office, Glasgow, the defender was kept in police custody for some four hours. On both said charges the defender subsequently stood trial at Glasgow Sheriff Court on or about 20th June 1985. With reference to the defender's averments in answer, admitted that following trial the charge against the defender was found not proven. Quoad ultra the defender's averments in answer are denied save insofar as coinciding herewith. Explained and averred that initial questioning of the defender by the pursuer and answers thereto occurred on 5th January 1984. Subsequent inquiries thereanent by the pursuer caused him to question the defender further on 6th and 7th January 1984. Ans. 2. Admitted under explanation that following trial the charge against the defender was found not proven. COND. 3. Subsequently on 20th January 1986 the defender wrote a letter to the Chief Constable of Strathclyde Police Force complaining about the conduct of the pursuer. Said letter is referred to for its terms, which are held brevitatis causa to be repeated herein. Said letter of complaint gave rise to an investigation initiated by the said Chief Constable. Following upon the conclusion of said investigation no criminal or disciplinary proceedings were taken against the pursuer. The pursuer for a considerable period of time never saw said letter of complaint, in spite of a written request by a law agent acting on his behalf to the said Chief Constable thereanent. Copy reply from the Deputy Chief Constable dated 18th April 1986 to the pursuer's law agents is produced and referred to for its terms. The pursuer was only made aware of the precise terms of said complaint when said letter was lodged in process in late July 1989 in response to a call for it by the pursuer in his earlier pleadings. The defender's averments in answer are denied save insofar as coinciding herewith. The defender is called upon to produce any copy of the said letter from him to the Chief Constable of Strathclyde Police Force held by him or anyone on his behalf, failing which any notes, jottings or memoranda upon which said letter was based, again held by him or anyone on his behalf. His failure to answer said call will be founded upon. Ans. 3. Admitted that the defender was released from police custody on the said date on which he had been detained. Admitted that he subsequently wrote a letter to the Chief Constable of Strathclyde Police Force. Admitted that said letter gave rise to an investigation initiated by the said Chief Constable. Admitted that following upon the conclusion of said investigation no criminal or disciplinary proceedings were taken against the pursuer. Not known and not admitted whether the pursuer has seen said letter. The said letter from the Chief Constable is referred to for its terms beyond which no admission is made. Quod ultra denied except insofar as coinciding herewith. COND. 4. In the course of said investigation the pursuer was first made aware of the nature of the complaint by Detective Chief Superintendent John Corrie. He was subsequently interviewed on our about 5th February 1986 by Detective Chief Inspector Samuel Smith about the allegations which the defender had made prior thereto in said letter of complaint, and had thereafter repeated on or about 27th January 1986 when giving a statement to the said Detective Chief Superintendent John Corrie. The pursuer avers that in terms of said letter of complaint hereinbefore condescended upon the defender alleged that the pursuer acted illegally and unprofessionally and inter alia that he had contacted the Post Office and Daily Record newspaper to inform them of the facts and circumstances of the defender's detention; that he had threatened witnesses for the defender, viz, Shaukat Hussein and his wife; Masood Akhtar and Miss Flora Ballantyne, and accused them of lying; and that he only charged the defender with said criminal offences because the defender was of Asian origin and a Justice of the Peace. The pursuer further avers that the defender repeated said allegations when being interviewed by arrangement by the said Detective Chief Superintendent John Corrie on or about 27th January 1986. The defender alleged that he had told the pursuer the names of four witnesses who could have established his innocence, namely Shaukat Hussein, Masood Akhtar, Miss Flora Ballantyne and Sammy Hutton and that the pursuer failed to interview these witnesses. Said witness Hussein was interviewed by the pursuer on Thursday, 5th January 1984 and said witnesses Akhtar, Ballantyne and Hutton were interviewed by the pursuer on Friday, 6th January 1984. With reference to the defender's averments in answer, it is denied that the defender had reasonable grounds to believe in the truth of said matters. Denied that said letter and the terms thereof are protected by qualified privilege. Quoad ultrathe defender's averments in answer are denied save insofar as coinciding herewith. With reference to the defender's letter to the Chief Constable, it is explained and averred: (1) That...
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