Peter Halford and Chief Constable of Hamshire CONSTABULARY & Timothy Eric CURTIS
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon Brown,Lord Justice Sedley,Mr Justice Jacob |
| Judgment Date | 13 February 2003 |
| Neutral Citation | [2003] EWCA Civ 102 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2002/0739/QBENF |
| Date | 13 February 2003 |
[2003] EWCA Civ 102
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(HHJ Richard Walker QC)
(QUEEN'S BENCH DIVISION)
Lord Justice Simon Brown
(Vice-President of the Court of Appeal Civil Division)
Lord Justice Sedley and
Mr Justice Jacob
Case No: A2/2002/0739/QBENF
Paul McCormick Esq (instructed by Messrs O'Hara Rice Scholes) for the Appellant
John Beggs Esq (instructed by Messrs Barlow Lyde & Gilbert) for the Respondent
This is the claimant's appeal in libel proceedings against the order of His Honour Judge Richard Walker, sitting as a judge of the High Court on 25 March 2002, entering judgment for the defendants with costs consequent upon rulings made (i) that the two publications complained of were published on occasions of qualified privilege and (ii) that there was no sufficient evidence upon which a jury properly directed could properly find that the second defendant (the publisher of the words complained of) was actuated by malice.
The rulings and order followed a five-day hearing before Judge Walker and a jury the previous week, a hearing which itself followed on from an abortive hearing the week before that which had ended, for reasons immaterial to the present appeal, in the jury's discharge. The detailed reasons for the rulings and order were given in a very full and careful reserved judgment on 27 March 2002.
By this appeal, brought with the permission of Mummery LJ, the appellant seeks to challenge both the judge's rulings. Mr McCormick on his behalf submits first that the judge should have found that the words complained of went beyond the scope of publications attracting qualified privilege, and secondly that the judge, in reaching his conclusion on the issue of malice, took it upon himself to resolve questions of fact which could only properly be decided by the jury and in the result usurped the jury's function.
The principles of law governing the issues arising on this appeal are not in doubt or dispute; they are now well established. What is in dispute is the judge's application of those principles on the particular facts of this case.
With that briefest of introductions, let me now turn to the facts which, although they are before us in the greatest profusion, and not a little disorder, I shall endeavour to summarise as shortly and cogently as may be.
The appellant is a senior Education Welfare Officer ("EWO") employed by the Hampshire County Council. The job has two main elements, child protection and education welfare. In 1995 he married a woman who already had three children by her previous marriage to a Mr K: Sarah (born 25 March 1982); Paul (born 11 October 1984); and Rosamund (born 1 June 1987). Together they then had two more children, Charles (born on 14 October 1995) and Lawrence (born 14 November 1996). All lived together in a house at Fareham. Undoubtedly there were considerable tensions within the household.
The second respondent, Detective Sergeant Curtis, was at the material time based at Fareham police station. On 18 October 1996 he received a complaint that during the previous evening (17 October) the appellant had assaulted his stepson Paul (then aged just 12) causing him actual bodily harm. Paul had first made the allegation on his arrival (late) at school the following morning. Mr Jackson, his teacher, noticed bruising on his face. Paul told him that the appellant had beaten him up. Mr Jackson immediately telephoned Social Services. Paul made a statement (to other police officers) saying that he had intervened to protect his sister, Sarah (who had scratched the appellant's left hand when he grabbed her by the T-shirt), and that the appellant had then put both hands around his neck and lifted him into the air, then thrown him back on his bed so that his head hit the wooden headboard.
On the evening of 18 October DS Curtis saw the appellant at the police station and, having arrested him, interviewed him under caution before releasing him on bail. At interview the appellant denied the assault, denied indeed ever having hit any of the children. On 19 October DS Curtis took statements from Mrs Halford and Sarah, and on 22 October from Mr Jackson.
On 25 October DS Curtis wrote to the local police surgeon, Dr Webb:
"Please find enclosed a copy of the witness statement [Mr Jackson's statement] which best describes the bruising on the victim's face. I would appreciate your opinion on the possible age of the injury. I accept that you may feel that there is insufficient detail available to you upon which to base a finding. If you have any questions regarding this request or would like to view any other documentation in this case to assist you, please feel free to contact me."
A copy of Paul's statement was also enclosed.
On 9 November 1996 Dr Webb replied to DS Curtis saying:
"At this stage [only some 12 hours after the alleged assault] I would have expected any bruising to be red, possibly beginning to turn blue. If as described by Mr Jackson it was yellowing in the middle and very dark on the edges I would have considered it to be three-four days old. Paul describes other ten pence-size bruises in either side of his face which Mr Jackson does not mention. He also mentions quite traumatic treatment of his neck which one would have expected to leave some signs of redness at least. Furthermore the treatment Paul describes to his head would almost certainly have left some tenderness which Mr Jackson could not detect. To summarise, I feel that there are quite considerable differences between what Paul describes as happening and the physical signs noticed by Mr Jackson"
Meantime, on 29 October 1996, there took place the first of a series of child protection conferences ("CPC") with regard to the appellant's three step-children. Reports had already been prepared by Fareham Social Services and these were circulated. The conference was attended by twelve people including the appellant, Mr and Mrs K and DS Curtis. The appellant arrived late. The outcome of that CPC was communicated to the appellant by letter dated 20 November 1996. It had been decided to place all three children on the child protection register. DS Curtis had in fact favoured putting only Rosamund on the register.
On 26 November 1996 there was a meeting between Mr Roy Ward, the council's Assistant Principal EWO, Peta Lack, the council's senior personnel officer, and the appellant. The meeting was held to give the appellant the opportunity to make an initial response to the findings of the CPC. That response was invited "prior to the instigation of an investigation to determine whether suspension of Mr Halford is appropriate and whether any formal action under the disciplinary procedure is required". The notes of the meeting further record:
"The police have reported that their investigation is complete. The case has been referred to the Crown Prosecution Service. Peter remains on bail until 11 December 1996."
That same day, 26 November 1996, the appellant wrote to Pauline Owen, the Service Manager of the relevant Social Services Department who had chaired the CPC:
"Mrs Halford and I wish to formally appeal and complain about the way in which the child protection conference was conducted and the way in which the investigation of the alleged abuse was carried out by the Social Services Department. In the case of the police investigation, on the contrary, my wife and I believe this has been carried out in a professional and sensitive manner."
DS Curtis had sent the crime file to the CPS on 25 November 1996. He specifically drew the CPS's attention to Dr Webb's letter "which clearly has an impact on the evidence". His "guide to the prosecution case" further recorded that during his interview with the appellant he had "examine[d] his hands and there are no scratches on the left hand, as alleged by Paul".
On 17 December 1996 the CPS replied to DS Curtis:
"I have considered the evidence submitted in this case. I will say at the outset that I do not consider a prosecution would be successful in respect of any allegation of assault by Mr Halford upon Paul. The problem as I know you already appreciate is the massive conflicts in the evidence. One might expect a conflict between that of Paul the victim and Peter Halford the alleged offender over what happened, but the most troubling matter is that the description of events by Paul and Sarah are so different as to make it appear that they are talking about entirely different incidents. In addition there is no physical evidence support for the contention that he was held by the neck and there are then the views expressed by Dr Webb that he could find no support for the principal allegation made by Paul in the context of the injuries described by Trevor Jackson. It is of course extremely troubling when one can see that clearly some violence is occurring within this family and it is to be hoped that the proper authorities can address those subjects in the family context. Nevertheless there is no scope evidentially for a prosecution."
On 19 December 1996 DS Curtis wrote to the appellant:
"Further to my telephone conversation with you, this letter is confirmation that after careful consideration it has been decided that no further action will be taken against you.
However, if further significant evidence becomes available at a later date, the decision may be reconsidered and the...
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