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The relevant proceedings brought by the solicitor were in relation to a comment made by a member of the PSNI that the solicitor had acted unprofessionally in the course of a recorded interview.

Slander

In the proceedings the PSNI sought to stay, Mark Austin, a solicitor, alleged that Detective Constable Wallace, a servant or agent of the Chief Constable of the PSNI, published a defamatory statement during the course of a police interview of Mr Austin’s client incident on 17 January 2015.

In this interview, DC Wallace declared that Mr Austin was “unprofessional” in his action of offering his client’s pre‑prepared statement at the end of the interview process, rather than at the beginning. Accordingly, Mr Austin is in the process of seeking damages for slander.

Justice Stephens was satisfied that the words spoken by DC Wallace about Mr Austin were heard by the two other people in the interview room, namely Mr Austin’s client and the other interviewing police officer, Constable Julie-Ann Kenny.

In addition, the comments were also recorded on tape and a transcript was made of that tape.

Police Ombudsman investigation

Mr Austin made a complaint to the Police Ombudsman for Northern Ireland who concluded the investigation into the matter in April 2015.

According to information provided to the Ombudsman, immediately after the incident on 17 January 2015 the Custody Sergeant spoke to DC Wallace regarding the comments and provided appropriate disciplinary action, which included reminding them that the comment was inappropriate, unprofessional and should not be repeated. Nevertheless, a question arose as to whether the custody officer did immediately take appropriate action.

The Ombudsman concluded that:

(a) the comments made by the interviewing officer were inappropriate and unprofessional; (b) suitable misconduct action was taken immediately by the Custody Officer and the matter was appropriately dealt with at the time; and (c) the complaint had been upheld.

Publication

On the evidence, Justice Stephens was satisfied that the publication was to:

(a) the two other persons in the interview room;

(b) to those involved in transcribing the tape which transcript was for the purpose of the complaint to the Ombudsman or for the purposes of these proceedings; and

(c) to those in the office of the Ombudsman involved in investigating the complaint.

Counsel for the PSNI sought to rely on the principles established in Jameel v Dow Jones & Co Inc QB 946 and Ewing v Times Newspapers Ltd 63 NIQB, and on Thornton v Telegraph Media Group Ltd EWHC 1414 to support the proposition that the action should be stayed as an abuse of process there having been “no real and substantial tort.”

The PSNI contended that tort was not a “substantial tort” within Jameel given the limited publication; the likely attitude of Mr Austin’s client; and the vindication already given to Mr Austin by the decision of the Ombudsman. Accordingly, they argued that the “action should be stayed given the amount of costs involved in the proceedings and the chilling effect on the article 10 ECHR rights” of the PSNI.

It was submitted that the tort was not a “real tort” within Jameel on the basis that the relevant words used were trivial so that Mr Austin had no real prospect of establishing that they met the threshold of seriousness test set out in Thornton – “the publication of which (the plaintiff) complains may be defamatory of him because it substantially affects in an adverse manner the attitude of other people towards him, or has a tendency so to do”

In relation to meanings, Mr Austin alleged that the words spoken meant that Mr Austin was “unprofessional in the manner by which he conducted himself as an officer of the Court and as a solicitor advising and representing a client suspected of having committed a serious criminal offence.” Furthermore, it suggested “that he was discharging his duties in a disreputable way and in a manner unbecoming of his profession as a solicitor”.

Despite the findings of the Ombudsman, the PSNI pleaded justification in relation to lesser meanings, which the PSNI asserted the words are capable of bearing – i.e. that in disclosing a pre-prepared statement at the conclusion of an interview, Mr Austin departed from recognised practice and caused delay in the interview process.

Justice Stephens was of the view that, “in pleading justification, the defendant, far from apologising, is making a positive case that Mr Austin acted inappropriately”.

Given the “conflict in the approach adopted in the defence with the account given to the Ombudsman”, Justice Stephens thought it appropriate to “proceed on the basis that there was no apology to Mr Austin and that a question might be raised at the trial as to whether there was appropriate action taken by the Custody Sergeant”.

Justice Stephens continued by indicating that if the PSNI were to successfully stay the proceedings, then “the allegations contained within the plea of justification, would not have been withdrawn, but would have been left undetermined as the position adopted by the defendant in relation to Mr Austin’s conduct”.

Consequently, there would remain an allegation against Mr Austin that a defamatory meaning was true.

Conclusions

While emphasising that his conclusions were at an interlocutory stage, and therefore not binding at trial, Justice Stephens held that there remained “a challenge to Mr Austin’s professionalism which he was entitled to take seriously”.

Justice Stephens was satisfied that “the threshold of seriousness as set out in Thornton” had been met, and furthermore, the case had a low value with proportionate costs; applying Jameel, he did not consider it appropriate to stay the proceedings.

The PSNI’s application to stay the proceedings was therefore dismissed.