C was a resident of Slough who witnessed some anti-social behaviour in a local park. She reported it to the Council’s anti-social behaviour co-ordinator (ASBO Officer). C was dissatisfied with the way the Officer responded to her report and subsequently complained to the Council. She wrote a letter of complaint to the Council in which she stated “I am certain I would have physically attacked her if she had been anywhere near me.” She repeated a similar sentiment, also as a figure of speech in the past tense at a meeting with K, the Council’s Head of Public Protection who was investigating the complaint.
The Council placed C on its Violent Persons’ Register for 18 months with a risk rating of medium. The Register was circulated within the Council electronically to Council employees but also to four external partner organisations, which included 50 businesses in the Town Centre Business Initiative and others that would have no contact with C.
K also published an email stating that C had made repeated violent threats to staff to 66 employees of the Council.
At trial, the judge ruled that the only publications subject to qualified privilege were those to “customer facing staff” in 3 named departments of the Council likely to have contact with C. There was no qualified privilege defence in respect (1) of Council employees in the Licence, Food & Safety, Children & Education Services Departments and (2) in relation to community wardens, trade union officials or anyone in the four partner organisations.
Accordingly, the jury (which rejected the defence of justification but found malice not proven) were directed to assess damages on the basis the the Register had been circulated to 150 people and the email to 30 people – the remaining 66 being covered by qualified privilege.
The judge had held that in order for a public authority to claim it had the interest or duty required at common law for there to be a defence of qualified privilege, it needed to comply with its public law duties under the Human Rights Act 1998 (following Wood v Chief Constable of West Midlands and declining to follow Kearns v General Council of the Bar). The only right engaged was C’s right to her reputation under Article 8. Circulation to the other departments and to ther partner organisations was not proportionate or fair and so was not covered by the defence of qualified privilege.
The Defendant appealed to the Court of Appeal in respect of the ruling on qualified privilege.