Police apologise to Marine in High Court, and pay substantial libel & privacy damages
Summary
In a High Court hearing on 8 June 2022, Mr Justice Jay heard that the Chief Constable of West Yorkshire Police (WYP) agreed to pay substantial damages (in the sum of £67,500) to a serving Marine for libel and privacy breaches. The Chief Constable also made an unreserved apology and retraction. He committed, in open court, to “revised procedures and safeguards … implemented as a result of this case” and expressed sincere regret for how the case had been handled in light of WYP’s “commit[ment] to policing fairly and objectively, on behalf of all the communities it serves”.
An anonymity order protects the identity of the claimant – known as TJM - and his child. Mark Henderson, instructed by Filiz Kiani of Cohen Davis, acted for the claimant throughout the proceedings.
The concluding Statement in Open Court follows the preliminary trial judgment of Mr Justice Johnson in TJM v Chief Constable of West Yorkshire [2022] EWHC 2658 (KB) ruling on the meaning of an email sent by WYP to the Royal Navy (TJM’s employer). WYP relayed allegations made against him and told the Navy that “The police will be seeking a charge of controlling and coercive behaviour/harassment against [TJM].” They asked the Navy “to look into an internal investigation into [TJM] as if in the case a criminal charge is unable to be brought against him, his behaviour … are far below the standard expected in the armed forces”.
Only after sending that email to the Navy did WYP arrest TJM for questioning. He was then put on police bail for 16.5 months during which time WYP gave inconsistent accounts of the reason for the prolonged police bail. No charge was brought.
WYP’s case at the Preliminary Trial was that the email meant that there were “grounds to suspect the claimant” of the offences (known as a Chase Level 2 meaning). TJM contended that the overall meaning was that TJM was guilty of the offences, and that WYP were urging a Navy investigation in case he could not be charged.
Johnson J concluded that WYP had endorsed the allegations it relayed about TJM, and conveyed as a fact that TJM was guilty of two criminal offences and (as WYP’s opinion) that his behaviour was incompatible with service in the Armed Forces. He held that WYP defamed TJM at common law.
The judgment is the only known case in the last decade since the Defamation Act 2013 in which the High Court has ruled that a police statement bore a ‘Chase Level 1’ meaning alleging that a person is guilty of an offence.
Following Johnson J’s judgment, WYP entered a defence of Truth to the meaning that TJM was guilty of the offences. TJM rebutted that and other defences raised by WYP.
WYP then admitted liability for libel, misuse of private information, and breach of data protection duties. The size of the libel and privacy damages paid by WYP reflects the seriousness of the police making such allegations and the extent to which TJM and his child’s privacy were invaded.
In the bilateral statement before Jay J, Mr Henderson explained that the Chief Constable of WYP “apologise[d] unreservedly to the Claimant for the distress and embarrassment that the publication of the false allegations has caused him and for the continuing damage and distress” and in addition to paying TJM substantial damages, “he was also here to confirm to the Claimant and the Court how lessons will be learnt from the unfair and unacceptable way in which the Claimant has been treated”. Counsel for the Chief Constable confirmed this (below).
Coverage includes:
In Depth
The claim
The claim was brought in defamation for an email that was sent by WYP to the Royal Navy on 25 August 2020 (appended to the Preliminary Trial judgment in redacted form). It was also brought for misuse of private information and data protection breaches in relation to both the email and its attachment. The attachment disclosed extracts of correspondence between TJM and the other parent about arrangements for the child’s care, which was being managed by the Family Court.
Preliminary Trial
A Preliminary Trial was ordered of issues including the natural and ordinary meaning of the email.
The main issue in dispute was the ‘Chase level’ of seriousness of the meaning of the email. In his judgment, Johnson J explained the “shorthand “Chase Levels 1, 2 and 3” as being: “Chase Level 1 is that the claimant is guilty of the act alleged. Level 2 is that there are reasonable grounds to suspect that the claimant is guilty of the act. Level 3 is that there are grounds to investigate whether the claimant has committed the act.” (para 3) He also explained the role of the repetition law in libel and that “It is perfectly possible to repeat a Chase Level 1 statement in a way that does not bear a Chase Level 1 meaning.” (para 5)
He said that “Much of the argument between counsel has concerned the words, “The police will be seeking a charge of controlling and coercive behaviour/harassment against [the claimant]” (para 18).
He rejected the Chief Constable’s case that the meaning was only that there were “grounds to suspect the claimant” of the offences identified in the email (a Chase Level 2 meaning) and accepted TJM’s primary case that the email conveyed an allegation by WYP that the allegations against him were true and he was guilty of the offences identified (Chase Level 1). In so doing, he considered the relevance of “whether the reasonable reader would be expected to know the process by which a charge is sought, and the involvement of the independent Crown Prosecution Service applying the Code for Crown Prosecutors”. He concluded:
"I appreciate that [the email] acknowledges, firstly, that the matter must be referred for a charging decision, and, secondly, that it was at least possible that the claimant would not be charged. That however simply reflects the fact that the decision-making in respect of charge was out of the police’s hands. It does not alter the fact that the meaning communicated by the email is that the police, for their part, were saying that the claimant had committed the offences.” (para 20)
He ruled that the email meant that:
“The claimant has threatened and told blatant lies to his former partner, sending her emails which make threats, drawing on his military background to control her, and causing her to be scared that she is under constant surveillance and affecting her mental health. He has thereby committed an offence of controlling and coercive behaviour against his former partner and an offence against her of harassment. His behaviour is not compatible with service in the armed forces.” (para 21)
The meaning was factual except for the last sentence, which was opinion (para 22).
After the Preliminary Trial, the Chief Constable entered a Defence defending as True the allegation that TJM was guilty, defending the opinion as Honest Opinion, and claiming that the disclosure of TJM’s private information was justified in the public interest. In Reply, TJM contested the Truth defence, contended that the opinion was insupportable as Honest Opinion, and said that the Truth defence aggravated the damage caused by the libellous email, especially in the context of the 16.5 months spent on police bail without charge.
Following TJM’s Reply, the Chief Constable conceded liability without limitation. After further work by the parties over several months, agreement was reached on damages in the sum of £67,500, and the Court granted permission to read the bilateral Statement in Open Court heard on 8 June 2023.
Mr Henderson explained before Jay J that:
"The defamatory Statement was foreseeably republished, as Johnson J had concluded was intended, within His Majesty’s Armed Forces. The Claimant does not know how widely it has been disseminated, and may never know for sure, something which has greatly aggravated his distress. He has been particularly worried that publication of the false defamatory Statement could affect his relationship with his child.
…
The Defendant is here today to set the record straight and to apologise unreservedly to the Claimant for the distress and embarrassment that the publication of the false allegations has caused him and for the continuing damage and distress. The Defendant has agreed to pay substantial damages to the Claimant. He is also here to confirm to the Claimant and the Court how lessons will be learnt from the unfair and unacceptable way in which the Claimant has been treated."
Counsel for the Chief Constable confirmed that “The Defendant acknowledges that the factual allegations about the Claimant are untrue, and that the opinion expressed about him is insupportable” and that:
"As counsel for the Claimant has said, the Defendant further reiterates to the Claimant and to the Court that West Yorkshire Police are learning lessons from what occurred in this case in order to avoid any repetition of these or similar circumstances. Revised procedures and safeguards have been implemented as a result of this case.
The Defendant finally reiterates that West Yorkshire Police is committed to policing fairly and objectively, on behalf of all the communities it serves, and in that respect too, the way in which this particular situation was handled is sincerely regretted.
The Defendant is accordingly here today to publicly set the record straight, and to apologise to the Claimant for all the distress and embarrassment that he accepts that the false and insupportable defamatory Statement, together with the breach of his privacy, has caused to him."
