TJM v Chief Constable of West Yorkshire Police
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Defamation by the Police
An email sent by the Police to a suspect’s employer was found to be defamatory because it implied that the suspect was guilty of a criminal offence.
Our client, TJM, was a serving Royal Marine Officer who had a young child and was going through custody arrangements hearing to resolve a custody dispute with his former partner. His former partner made a complaint against him to the Police that he was allegedly using controlling and coercive conduct towards her. In August 2020, prior to interviewing him as a suspect and before taking a formal statement from his former partner, a Police officer from West Yorkshire Police published an email to TJM's employer, the addressee being a high-rank officer in the human relations department of the Royal Marines.
The Police officer attached to the email a PDF file containing extracts of selective emails between TJM and his former partner. In the body of the email, the officer wrote that the Police will be seeking a charge of controlling and coercive behaviour and of harassment against TJM, because his former partner felt as though she couldn’t leave the house as she was scared that she was under constant surveillance due to TJM’s military links.
The email continued, that the former partner was yet to give a video interview to the Police, after which the Police will arrest TJM to get his side of the story and put bail conditions on him to prevent him from contacting her. The Police officer then asked that the Royal Marines make an internal investigation into TJM, in case it would not be possible for the Police to bring criminal charges against him as his behaviour, threats, and blatant lies to his wife are far below the standard expected of a member of the armed forces.
TJM believed that the content of the email by the Police implied that he was guilty of a number of criminal offences. He believed it to mean that he 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.
That he has thereby committed offences of harassment and controlling and coercive behaviour against her. The email further stated that his behaviour was not compatible with service in the armed forces.
The publication of the email to TJM’s employer containing imputations of criminality and that he is unfit to be in his job represents the paradigm case of a well-directed arrow fired into the bull’s eye of his reputation. The threat to his employment this entailed, was inevitable and apparently intended, a consequence of the publication of such allegations to his employer.
As was inevitable and intended, the email was republished by his employer, the UK Armed Forces and the Ministry of Defence. It was likely that it had been read by a significant but unquantifiable number of persons within TJM’s employer, the armed forces, and the Ministry of Defence, and that it would be seriously harmful to his reputation in the eyes of superiors, colleagues, officials and/or civil servants.
The Police’s willingness to publish an email about his alleged criminality and unfitness for continued employment, and that the Police wished to have him charged with serious offences, all without bothering to wait to hear his side of the story, made TJM distressed and fearful that this bias against him would undermine any fair investigation of the alleged offences.
Furthermore, TJM had reasonably inferred that the Police’s apparent bias was influenced by racial stereotyping, resulting from him being a young black man whereas his former partner is white, resting on the common racist trope about young black men being aggressors. This has further exacerbated the distress and injury to the Claimant’s feelings.
The email and the attachment which was sent by the Police contained information as to which TJM had a reasonable expectation of privacy and which was confidential. Examples of misuse of private information by the Police are:
- information relating to, and obtained in the course of, the criminal investigation to which TJM was subject by the Police
- purported descriptions of interactions between the TJM and the Police including purported descriptions of his email correspondence with his former partner relating to access arrangements for their child
- selective extracts from said email correspondence dealing with arrangements for the child, including personal information about the child, and, in the attachment, the identification of the child by name over 30 times.
TJM had a reasonable expectation of privacy in the information and it was confidential information that the Police held under a duty or obligation of confidence. As the subject of a criminal investigation, TJM was entitled to a reasonable expectation to privacy regarding the investigation, unless and until a charge was brought against him (which it never was).
The Police were further under a duty of confidence as to information received as part of a criminal investigation, including any allegations received that formed part of the investigation. TJM’s correspondence with his former partner about access arrangements for their Child was plainly private and confidential. It fell within his right to respect his correspondence, his family life, and his private life under Article 8, ECHR.
The correspondence concerned child arrangements which were the subject of active proceedings in the Family Court. The proceedings were private, and information relating to them was private and confidential as was the Child’s identity.
The publication of the email to TJM’s employer constituted a misuse of his private and confidential information, and his right not to have the information published to his employer outweighed any countervailing right of the Police to publish it.
Family Court proceedings relating to children are normally held in private. That means that court papers relating to the proceedings must not be disclosed to anyone else unless the court gives permission. The interactions about the care of the child, and the child’s identity, were highly private and confidential and the subject of active proceedings in the Family Court, which were strictly private.
TJM had a strong expectation that privacy and confidentiality would be respected in the absence of a carefully determined overriding public interest in disclosing the information in the form and circumstances and at the point in time at which it was published to his employer. In the email by the Police, the publication of the information included inaccurate and disproportionate information, comprising false imputations and selectively chosen extracts from the email correspondence.
The publication of this was disproportionate and excessive, including the unlawful and repeated identification of the child who was the subject of the arrangements supervised by the Family Court. Whereas the private and confidential nature of the issue and the correspondence and the Family Court proceedings did not prevent the proper investigation of a potential criminal offence, the publication of the information was not done for the purpose of investigating a potential offence.
The Police did not identify the pursuit of a criminal investigation as a basis for publishing the information to TJM’s employer. On the contrary, the Police purported to provide the employer with conclusions that had already been reached about the TJM’s alleged criminal offences and to inform his employer of what the true position will be if charges cannot be brought, and what action the employer is asked to take in that scenario.
The content of the email which was sent by the Police to TJM’s employer and the attachment to the email constituted TJM’s personal data (and his child’s, who was identified by name). By collating, sorting, filling and preparing the email and Attachment PDF file of email extracts and publishing them to the suspect’s employer, the Police, as data controller, processed the personal data of the TJM (the relevant processing) for the purposes of the General Data Protection Regulation (GDPR) and Data Protection Act 2018 (DPA). Breach of a suspect’s personal data by the Police occurred in the following examples:
- breach of Article 5(1)(a) of the GDPR, the relevant processing of the suspect’s personal data was unlawful.
- breach of Article 5(1)(c) of the GDPR, the relevant processing was excessive and not limited to what was necessary for any legitimate purpose.
- breach of Article 5(1)(d) of the GDPR, the email was inaccurate.
It is untrue that the JSM committed the criminal offences alleged The Police had failed to identify a proper basis to conclude that they took reasonable steps to ensure the accuracy of the data. On the contrary, by omitting to obtain JSM’s side of the story before publishing the email the Police demonstrated that they took no reasonable or proportionate steps to do so.
There are situations where GDPR has only limited application to activities by the Police. In the case of TJM, the email sent by the Police to his employers did breach GDPR because the relevant processing of the data was not for the Police’s Law Enforcement purposes as was identified by the email itself. If the relevant processing was for Law Enforcement purposes, it would, in any event, have constituted unlawful processing under Part 3 of the DPA by reason of failure to comply with:
- the first data protection principle is that the processing of personal data for law enforcement purposes must be lawful and fair (section 35(1)), which will be the case, in the absence of consent, only where the processing is necessary for the performance of a task carried out for that purpose by a competent authority (section 35(2)),
- the third data protection principle that personal data processed for any of the law enforcement purposes must be adequate, relevant and not excessive in relation to the purpose for which it is processed (section 37); and
- the fourth data protection principle is that personal data processed for any law enforcement purposes must be accurate and, where necessary, kept up to date and that every reasonable step must be taken to ensure that personal data that is inaccurate, having regard to the law enforcement purpose for which it is processed, is erased or rectified without delay (section 38).
In defamation cases, whenever there is a dispute between the parties about the meaning of the words which are alleged to be defamatory, The Court’s task is to determine the single natural and ordinary meaning of the words, which is the meaning that the hypothetical reasonable reader would understand the words bear Under English law, there are 3 levels of defamation. Chase Levels 1, 2 and 3.
- Chase Level 1 is that the claimant is guilty of the act alleged.
- Chase Level 2 is that there are reasonable grounds to suspect that the claimant is guilty of the act.
- Chase Level 3 is that there are grounds to investigate whether the claimant has committed the act.
TJM alleged that the defamatory meaning of the email by the Police was a Chase Level 1 meaning. On 25 July 2022, in the Royal Court of Justice, Mr Justice Johnson concluded that the email by the Police fell under Chase Level 1 meaning. In other words, the judge has accepted the submissions on behalf of TJM, that the email by the Police in fact stated that our client was guilty of a criminal offence.
This is because:
- the email was written in an official capacity by a Police officer;
- it used the sender’s and the recipient’s official work email addresses;
- it was written in formal language; the correspondents do not apparently know each other;
- the recipient was a warrant officer, and therefore holds a rank of some seniority, the highest non-commissioned rank;
- there was a clear purpose in sending the email, which was to persuade the recipient to initiate an investigation into the TJM; the nature of the email and the context is such that it was very likely that there would be re-publication by the recipient to his colleagues.
The reason why it is suggested that an investigation should be instigated is spelt out in clear terms in the email. That is because it is said that TJM’s behaviour falls far below the standard expected of a member of the armed forces. It was therefore being said that TJM was not fit to serve in the armed forces.
Furthermore, the balance of the email didn’t simply repeat what the former partner has said but positively endorsed her allegations.
If you believe that you have been defamed by the Police, you should seek legal advice as soon as possible. There is a very strict time limit for bringing a claim for defamation against the Police which is shorter than the period that is available to bring general claims against the Police.
In most cases, if we consider that you have good prospects of success with your defamation case against the Police, we will consider taking on your case on a no-win no fee basis and we will pursue the case on your behalf all the way to the courts, if necessary. Call us now on 0207 1834123.