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What you hear’s a lethal style of conversation – can you sue or be sued for defamation during a child protection investigation

Or as MC Tunes famously sang, whilst mispronouncing the key word – “Don’t like what I say ? Then sue me for liable”

(He meant libel… Whilst he couldn’t pronounce libel, to be fair, he could pack jams like a party in a tin can. Is this alleged feat more or less impressive than cooking MCs like a pound of bacon? Discuss. )

We have established before that nothing that is said within a Court room can be used in an action for libel, slander or defamation – and that protection covers not only what a lawyer or witness says aloud, but to written documents and to conversations that were for the purpose of creating such documents.

(i.e Mr X can’t sue a social worker for saying in the witness box that “Mr X broke his son’s arm” even if that allegation is later found to be untrue. Nor can he sue the lawyer for saying “The threshold is met because Mr X broke his son’s arm” and nor can he sue the social worker for putting that in her Court statement or for saying such a thing to her lawyer outside the Court room in the preparation of the case. )

That’s all in Cutler v Dixon 1585
As the Courts have said in other cases

“The reasons why immunity is traditionally conferred upon witnesses in respect of evidence given in court, are in order that they may give their evidence fearlessly and to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again. Moreover, the trial process contains in itself, in the subjection to cross-examination and confrontation with other evidence, some safeguard against careless, malicious or untruthful evidence”

But what about defamation during the INVESTIGATION process? This case deals with that very issue, and may be of interest

ABC (A Mother) v The Chief Constable of West Yorkshire Police [2017]

I will try to capture the basic facts as quickly as possible. A mother, ABC, became concerned that her son who was 4 was being sexually abused whilst in the care of his grandparents. This is largely because he told her that they had put talcum powder on his willy and she believed that they were also taking indecent photographs of the boy. She made this complaint to the police, and a DC Green investigated it. As part of the investigation, the police officer asked her what their motivation might be and in answer to this she explained that they were bankrupt and might have a financial motive. In a later written statement, she said that she had not said this.
As part of the investigation, DC Green spoke with a social worker, and mentioned this aspect, saying that ABC had ‘lied’ to him during the investigation and that he did not consider the allegations to have any substance. The social worker, during her investigation, spoke with the GP and a GP record was later made of that discussion.

This is the record that was complained of, and when ABC learned of it, she sued the police officer for defamation

60.It was on 24 April that Victoria Stennett wrote up the GP Record on which the slander claim is based. I shall set out the full entry below, putting the words complained of in bold for clarity and ease of reference. I shall interpose some numbering, to help explain the argument and my findings on the issue of meaning. These points aside, I set out the entry exactly as it appears in the records, with all typographical errors.

“24 Apr 2015 12:30 Mobile Working: Victoria Stennett (Admin/Clinical Sup Access Role) @Supporting Families Unit

Reason for encounter – telephone call from Elsa Newell

Verbal communication interventions

discussion with Elsa newell social care. She has seen [BCD] and mum regarding the concerns that mum has voiced regarding grandparents and dad and sexual abuse towards [BCD]. She has attended court 3 times to stop all contact with the family and has been granted an order to stop grandparents from having over night care however the judge has stated that there is no evidence of abuse at all. Grandparents have admitted that there have been photos taken of him in the bath but police have checked these and they are not abusive mum also states that as grandparents are drying him them put talc on his penis and rubs it. She has stated that this is abusive and she does not even bath him therefore this is not right. There again is no evidence that this is abnormal behaviour other than general bathing of a child of 4. [BCD] has reported that he woke up one night at grandparents house in bed with step sibling Theo and there was a man in his room the man jumped on his bed and then ran out [BCD] did not tell anyone a she is not allowed out of bed when in bed. Mum stated that that [BCD] is drawing pictures of this man and has senn him since however grandparents and dad deny that therehas been an unknown man in the property overnight, [BCD] has also stated to social care that he has never seen this man before or since. Mum has put in a complaint regarding 3 police officers asthey are not taking thisseriously a complaint to the judge for not stopping dads contact and as the gp will not state that dad should have no access she is complaining regarding them [1] the judge has also ordered her not to discuss this matter with [BCD] as there have been witnesses stating that they have heard her putting words into [BCD’s]mouth. [2] She has also lied about the statement she has provided to the police and who was present when the police interviewed [BCD]. she states that her mother overheard the conversation between [BCD] and the police however this happened at nursery.

Elsa has seen [BCD] who likes spending time with his dad and he has not reported any concerns regarding his care from anybody. Nursery have no concerns and he is developing well.

Elsa wanted to know if mum had a history of mental health issues however all her records are private. [3] Elsa intends to close the case as there is nothing to suggest that there issexual abuse however there are reservations regarding mums role in this.

Activity: Patient related activity (20 minutes) Administration with Patient Record

Activity: Patient related activity (20 minutes) Telephone with other Professional

Patient Contact: 0 minutes Total Contact 40 minutes.”

A lot of the judgment deals with whether the mother had established that DC Green had said any of this, because it was a non-verbatim note of a conversation between a GP and a social worker drawing on things that the social worker had been told by other professionals. That’s not terribly interesting for our purposes, so skipping to the conclusion

69.The claimant goes on to set out the specific words of which she complains, and she has produced a written record of them in the form of the GP Record. There is no dispute that those words referred to her. It is not unreasonable to rely on a case that DC Green and/or DC Ridge made slanderous statements about the claimant to social services. The evidence establishes that each of them did speak to social services on the dates alleged. The Chief Constable is responsible for what her officers do.

70.But the GP Record is not a record of any slanderous statement made by a detective constable to Elsa Newell on or about 22 April 2015. It is a record of what Elsa Newell said to health worker Victoria Stennett in a telephone conversation on 24 April 2015. The GP Record does not purport to be or to contain an account of what any police officer said to Elsa Newell. Both the officers concerned have given evidence in which they deny making the statements complained of. The person to whom they are alleged to have made those statements, Ms Newell, has not given any evidence at this trial. The evidence is that she has no independent recollection of what she said. For that among other reasons a witness summons that had been served on her was set aside. The person to whom Ms Newell spoke has not given evidence either. An email that is before me contains some evidence that Ms Stennett thinks she wrote down accurately what Ms Newell said to her. But the email is not from Ms Stennett, and it is dated nearly two years after the initial record was made. It would be unsafe to attach any great weight to it.

71.I therefore have to decide whether I should reject the officers’ evidence and accept the claimant’s case, that it can and should be inferred from the GP Record and the other evidence before me, that the words that the claimant complains of were spoken to Elsa Newell by one or other or both of DC Green and DC Ridge.

72.There is nothing wrong in principle with an inferential case of slander. But it is often going to be hard to prove such a case, and there are real difficulties with the inferences invited in this instance. Some of the more obvious problems are these:

(1) The GP Record does not set out any direct quotation from any police officer. Nor does it contain anything that appears to be an indirect quotation from anything an officer said.

(2) The most recent written accounts of what the detective constables involved had said to social services are dated 15 and 22 April 2015, that is to say 9 and 2 days respectively before the conversation recorded in the GP Record.

(3) The Social Services records of what was said by DC Green on 15 April and by DC Ridge on 22 April 2015 are not helpful to the claimant. None of the language in either those records corresponds with any part of the words complained of.

(4) The first of the three elements of the words complained of (the passage about witness stating they have heard her putting words into her son’s mouth) is in a sentence, which I have labelled [1] above, that appears on its face to be a report of something said by a judge, not a police officer.

(5) The second element of the words complained of (“She has also lied …”) appears rather garbled, which is not what one would expect from a detective constable. There is ample evidence that DC Green writes clearly. DC Ridge seems to do likewise. More significantly, perhaps, this part of the words complained of is not easy to reconcile with the facts that were known to DC Green. It seems to suggest that the only conversation between BCD and the police was at nursery, so that the mother could not have overheard it. DC Green was well aware that was not so. He knew at the relevant time what ABC and her mother was saying about the matter. It is hard to see why he might lie about this. It is hard to see why DC Ridge would say anything on this topic. Her only role in the matter was to interview the claimant. Moreover, Elsa Newell knew that there had been two conversations between the police and BCD, or at least the social services records made that clear.

(6) The third element of the words complained of appears on its face to be a report of Elsa Newell’s intentions, and her reasons for them. It is clear that DC Green did have reservations about ABC’s role in the investigation, but it does not follow that these words reflect or embody a statement he made to Elsa Newell.

(7) The overall impression gained from a reading of Ms Stennett’s record is that it reflects a 20 minute conversation in which, whoever initiated the conversation, Ms Newell was conveying to the health visitor her overall assessment of the case, drawing on a number of sources of information.
73.For the reasons that follow I find that the claimant has failed to prove publication of all but one of the words complained of. That word is “lied”.

The Judge decided that “She has also lied” was a statement that had come from DC Green, and that he had said it to the social worker. That was potentially slander, and had then gone on to be published in the records.

Why might the word ‘lied’ be potentially slanderous?

Here are the ingredients that someone bringing a slander claim has to prove to the Court

82.The requirements that are relevant in this case are these. A claimant in slander must, unless it is admitted, prove that the publication of which they complain (1) conveyed a meaning or imputation which is defamatory at common law (2) has caused special damage, or is actionable without proof of special damage and (3) has caused or is likely to cause serious harm to the reputation of the claimant

86.The word “lie” in the context of the conversation between DC Green and Elsa Newell bears the natural and ordinary meaning that in the course of a police investigation into possible child sex abuse the claimant told a deliberate falsehood to a police officer. That is a defamatory meaning. It is unnecessary to rule on what meaning would have been attached to words which the claimant has not proved were published by any officer of the defendant.

(2) Actionable in slander?
87.It is a general rule of the common law that spoken words are not actionable as slander unless it is proved that their publication has caused special damage. None is alleged in this case, so the statements complained of are only actionable if they fall within one or more of the recognised common law or statutory exceptions to the general rule. Only one such exception is relied on here. A slander which imputes that the claimant committed an imprisonable crime is actionable without proof of special damage: see Lachaux v Independent Print Ltd [2015] EWHC 2242 (QB) [2016] QB 402 [8].

88.For the defendant it has been submitted that those who tell lies to police officers are not always prosecuted. That is no doubt true, but the question of law as to whether a statement is actionable as a slander does not depend on current charging standards or CPS policy. The question is not whether what was imputed would have led to a prosecution, but whether it amounted to a crime for which a sentence of imprisonment could (not would) be imposed.

89.For reasons that will appear, it is not necessary to decide this point, but I would be inclined to accept the claimant’s case on this issue. It may be that not all lies told to the police amount to a criminal offence. Here, though, the imputation of lying to the police that was published in this case might have amounted to the common law offence of perverting the course of public justice, but in any event would at least amount to wasting police time contrary to s 5 of the Criminal Law Act 1967. Both offences are punishable by imprisonment.

This is important – whilst a claimant normally needs to PROVE that the publication of the slander caused them special damage, that isn’t the case if the slanderous words suggest or imply that the claimant committed a crime for which they could be imprisoned.
(That’s probably going to be the case for any allegation of child abuse – it is difficult to think of an allegation that Mr X abused a child by doing Y, where Y would not be a crime for which Mr X might be imprisoned if he were prosecuted and convicted)

However, the claimant failed on the third ingredient, which was that she had to prove that the publication has caused or is likely to cause serious harm to her reputation

(3) Serious harm to reputation?
90.Here, the claimant’s case runs into difficulties. In my judgment she has failed to show that her case satisfies what I have called the “serious harm requirement.” This is contained in s 1(1) of the Defamation Act 2013 which provides that “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

91.The meaning and effect of this provision were explored in Lachaux (above) but the principles have also been looked at in later cases. It is convenient to adopt the relevant parts of the summary which Dingemans J drew from the authorities in Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB), [2016] EMLR 12 at [46]-[50]:

“46. … first, a claimant must now establish in addition to the requirements of the common law relating to defamatory statements, that the statement complained of has in fact caused or is likely to cause serious harm to his reputation. Serious” is an ordinary word in common usage. Section 1 requires the claimant to prove as a fact, on the balance of probabilities, that the statement complained of has caused or will probably cause serious harm to the claimant’s reputation. It should be noted that unless serious harm to reputation can be established injury to feelings alone, however grave, is not sufficient to establish serious harm.

47. Secondly it is open to the claimant to call evidence in support of his case on serious harm and it is open to the defendant to call evidence to demonstrate that no serious harm has occurred or is likely to do so. However a court determining the issue of serious harm is, as in all cases, entitled to draw inferences based on the admitted evidence. Mass media publications of very serious defamatory allegations are likely to render the need for evidence of serious harm unnecessary. This does not mean that the issue of serious harm is a “numbers game”. Reported cases have shown that very serious harm to a reputation can be caused by the publication of a defamatory statement to one person.

48. Thirdly, there are obvious difficulties in getting witnesses to say that they read the words and thought badly of the claimant… This is because the claimant will have an understandable desire not to spread the contents of the article complained of by asking persons if they have read it and what they think of the claimant, and because persons who think badly of the claimant are not likely to co-operate in providing evidence.

50. … as Bingham LJ stated in Slipper v BBC [1991] QB 283 at 300, the law would part company with the realities of life if it held that the damage caused by publication of a libel began and ended with publication to the original publishee. Defamatory statements are objectionable not least because of their propensity “to percolate through underground channels and contaminate hidden springs” through what has sometimes been called “the grapevine effect”. However, it must also be noted that Bingham LJ continued and said: “Usually, in fairness to a defendant, such effects must be discounted or ignored for lack of proof”, before going on to deal with further publications which had been proved to be natural, provable and perhaps even intentional results of the publication sued upon.”

[As Suesspicious Minds side-note – “Percolate through underground channels and contaminate hidden springs” is some dope imagery and one can only surmise at how much Bingham LJ would have wrecked the mic had he chosen to abandon the law and get into spitting dope rhymes with MC Tunes and Vanilla Ice instead…]

97.The allegation is not a trivial one. But allegations of a serious nature do not always or necessarily cause reputational harm that is serious. This is not a case in which inference can provide a satisfactory basis for a finding that serious harm to reputation has been caused. Nor do I accept the claimant’s case that it is proved that serious harm is likely in the future. I can see that a record has been made in the electronic database of GP information. Beyond that, I know and can infer little. The claimant has put forward a series of suggestions as to how the words complained of might affect her prospects of working with children, or adopting, fostering or having more children of her own in future. But that could only be the case if and to the extent that relevant part of the GP Record would be disseminated or made accessible to people making decisions of that kind, and taken seriously in that context. I cannot make assumptions about such matters. On the evidence before the Court this cannot be said to be likely, or anything more than speculative. That is true, whatever the point in time by reference to which the likelihood of future harm needs to be addressed.

So the defamation claim fails.

Of broader importance is that the Judge then went on to consider the defences and to rule on them. These are very important for everyone reading this who is busy sharpening pencils in readiness to issue a defamation claim against social workers and police officers and teachers for saying things at a case conference or for writing things in their records.

Qualified privilege

Qualified privilege is a category of defamation that means in effect that the law accepts that person A is able to say stuff to person B because of the job they are both doing, even if that ends up being slanderous of person C – AS LONG as it is not malicious.

If qualified privilege applies to child protection investigations, then a parent can only sue a professional for defamation if they are able to prove that the professional acted MALICIOUSLY
(which is as football commentator say “A big ask”)

Qualified privilege
116.The general principle of law is that there are circumstances in which, on grounds of public policy and convenience, a person may without incurring liability for defamation make statements of fact about another which are defamatory and untrue. The defence available where such circumstances exist is known as qualified privilege.

117.One well-established category of circumstance giving rise to such a privilege is where the person who makes the communication is under a legal, social or mora duty to communicate on the topic in question and the recipient has a duty to receive or a legitimate interest in receiving information on that topic. One classic formulation of this principle is that of Lord Atkinson in Adam v Ward [1917] QC 309, 334:

“A privileged occasion is … an occasion where the person who makes a 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. This reciprocity is essential.”
118.Ms Hayward relies on this principle. She submits, and I agree, that this is a case in which (i) the police had a duty to communicate with social services about the investigation into the allegations that BCD had been abused, and (ii) social services had a corresponding duty to receive such information. The claimant had alleged that BCD’s grandmother’s partner had sexually touched him and taken indecent photographs of him. BCD stayed frequently at his grandmother’s house, sometimes without his father there, as did BCD’s stepbrother. If true, as Ms Hayward argues, these allegations plainly posed a risk of serious harm to the children concerned. It was clearly appropriate to take a multi-agency approach to such matters. As Ms Hayward points out, when the allegations were first passed to the police they made a safeguarding report to social services almost immediately, and thereafter, as set out in the social services log, ensured that social services were kept apprised of the investigation.

119.It was necessary, submits Ms Hayward, for social services to understand the nature of the allegations, the progress of the investigation and, pending a final decision on the outcome of the investigation, the views of the police (and in particular the investigating officer), as to the substance of the allegations and the reliability of the person making them. It was entirely appropriate for such information to be relayed to social services as it would help them better understand and assess whether there was any risk to BCD and, if so, to manage it.

120.Where a public authority such as this defendant seeks to rely on the defence of qualified privilege the Court must take account of human rights law. A public authority can have no duty to make a communication if it represents an unnecessary or disproportionate interference with the Article 8 rights of an individual: Clift v Slough Borough Council [2010] EWCA Civ 1171 [2011] 1 WLR 1774. Ms Hayward recognizes this. She argues that to the extent that the communication complained of engaged the claimant’s Article 8 rights, it was not more than necessary and proportionate, having regard to shared safeguarding functions of the police and social services. I agree.

121.These activities were taking place within a context governed by statute and well-known statutory guidance. The Children Act 2004 imposes duties on local authorities and the police with regard to the safeguarding and welfare of children. By s 11(2) of the 2004 Act, a local authority and a chief officer of police for a policing area “must make arrangements for ensuring that (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children.” By s 11(4), such bodies and persons must have regard to any guidance given to them by the Secretary of State. The guidance in force at the relevant times was “Working together to safeguard children – A guide to inter-agency working to safeguard and promote the welfare of children” dated March 2015. Relevant passages are to be found in paragraphs 12, 15, 18, 22 and 23. Paragraphs 22 and 23 appear under the heading “Information sharing”. Paragraph 22 makes the obvious point that “Effective sharing of information between professionals and local agencies is essential for effective identification, assessment and service provision.” It is unnecessary to cite these paragraphs more extensively. It is clear that the guidance encourages professionals involved with children to share information with a view to enhancing the prospects for effective safeguarding, or promoting welfare.

122.Of course, it is necessary to consider the particular information provided in the individual case, and whether there was a real need to provide that information to the particular individual(s) with whom it was shared. The statement that “she lied” was not made in order to save a child from abuse. But it was clearly highly relevant to the duties which social services had to perform. In contrast to the factual position in Clift, the statement was communicated to a single individual, Ms Newell, who was personally under a duty to acquire and assess information relating to the welfare of BCD. This was information of that nature. In my judgment it is plain that DC Green had a duty to provide Ms Newell with his assessment of the reliability of the claimant, who had made allegations that her son was the victim of abuse by adults within his family. As Ward LJ observed in Clift at [35] “it cannot be held to be disproportionate for a [public] authority to do what it is bound to do anyway”.

So it falls within qualified privilege for a police officer to share details of his investigation with a social worker AND to give his professional opinion as to whether he believed the allegations and his view of whether the individuals in the case were reliable witnesses.

The same would be true of things said in a case conference or core group. (Whilst it MIGHT be arguable that a father who makes a defamatory allegation about a mother in a Case Conference is not covered by qualified privilege – he has no legal duty to share such information – and it might be arguable that he doesn’t have a social or moral duty unless he genuinely believes it to be true, it is rather academic, because he won’t have any money to make him worth suing…)

The mother was not able to prove that when DC Green told the social worker that “she also lied” that he did so maliciously, rather than acting within his statutory duties.

That means that there is still a very high bar for a claimant to surmount if they do want to successfully sue a professional for defamation.

1. They must prove what was said (the records probably do that) and that it was published and that the words were defamatory
2. They must prove special damages (that they suffered loss as a result) OR that the case is actionable without proof of special damages (though if the words complained of imply that the claimant did something which they could be imprisoned for, that would tick that particular box)
3. They must prove that the words complained of caused serious harm to their reputation or are likely to do so
4. And if the words complained of happened within an investigation process qualified privilege will attach, so the claimant must prove MALICE – i.e not just sharing information but saying those things with malicious intention to cause the claimant harm, distress or embarrassment.

I can imagine a scenario in which a parent is exonerated of an allegation in care proceedings but a professional in the case doesn’t accept that, and subsequently goes on to record on a file or share with another professional “Mr X broke his son’s arm” – if that happens after a family Court has ruled that Mr X didn’t do that, then that is potentially malicious in nature. Saying it before the Court has dealt with it wouldn’t be. And “ Mr X was accused of breaking his son’s arm but the family Court decided he didn’t do it” is not defamatory, because it is true.

The golden rule with any email or letter or record is “Imagine that I am sitting in Court with everyone involved and listening to a Judge read this out loud” – if it says something that would make you squirm or that you cannot defend, don’t say it.


About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

13 responses

  1. Just a small point about malice. Warby J gave his view on malice in the recent Hopkins v Monroe twitter case that it wasn’t so much the intention that mattered as the outward behaviour:-

    Monroe v Hopkins [2017] EWHC 433 (QB)

    [66] I remain of the view I expressed in Barron v Vines [2016] EWHC 1226 (QB) [22], that when malice is alleged in aggravation of damages,
    “… the issue is not the actual state of mind of the defendant. It is whether the claimants have suffered additional injury to feelings as a result of the defendant’s outward behaviour. If the defendant has behaved in a way which leads the claimants reasonably to believe he acted maliciously that is enough.”

    • A good point – I wonder whether that cover a parent who had a dim view of the social worker/police officer reasonably believing that the professional acted maliciously (i.e in legal terms is it a subjective test (Emma believed that the social worker was malicious) or an objective one (an ordinary person looking at Emma’s situation would have believed the social worker was malicious). It seems framed here as a subjective one…

  2. Lovely Social workers malicious ?? Perish the thought ……….

  3. Just a thought.

    If SW detailed in a report something defamatory and malicious against someone then would it not be that the claim for damages should be against the LA.

    The SW being employed by the LA thus carrying out her duties on behalf of the LA so in theory qualified privilege may not be the over all issue.
    Asking for a friend 😀

  4. Is there a human rights law that protects a childs birth certified name from being changed by LA (without a court order allowing them to do so) at the outset of FCP?

    • If a name HAS been registered, it can only be changed if a) all people with PR consent or b)a court gives permission. ( Of course a) also covers adopters changing name post adoption order)

      • Every PARENT or witness within family proceedings cases, should be made aware of the child’s name either by initials or name, used within the proceedings, part of swearing on oath procedure, as a family we were obviously swearing on oath in our child’s birth certified name, whilst witnesses and legal knew this was not the case for their evidence, gave them immunity from stating the truth, they might have thought,

    • Not a human rights law though, it is English law from Children Act and case law

      • The case you have discussed gives the child’s initials I presume this is the childs birth registered or ‘known as’ initials throughout, this protects the child, from any person changing the child’s name for illegal purpose, or possible/probable case, public information should only be printed with initials, anonimity clarifies nothing to the reader, but allows multiple deceit by perpetrators of injustice

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