High Court rejects application that defendant’s defence of truth was an abuse of process as it amounted to a collateral attack on the result of earlier criminal proceedings in which the claimant had been acquitted

HomeInsightsHigh Court rejects application that defendant’s defence of truth was an abuse of process as it amounted to a collateral attack on the result of earlier criminal proceedings in which the claimant had been acquitted

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The article complained of was headed: “Two guilty of killing a woman while racing their cars”. The article stated that the claimant, William Alexander Spicer, was one of the two racers, and that he had been found guilty by a jury. The reader was also told that whilst both men had faced a charge of causing death by dangerous driving, as well as one of causing serious injury by dangerous driving, Mr Spicer had been acquitted of both those charges, and convicted of careless driving. Only the other man, Farid Reza, was actually convicted of causing death and serious injury by dangerous driving.

The defendant was the Commissioner of Police for the Metropolis. Mr Spicer issued defamation proceedings against her on the basis that she was responsible for the operation of the news website for the Metropolitan police on which the article was published.

The meaning of the Article was determined by Mr Justice Warby following a trial of the issue in a judgment dated 7 June 2019 ([2019] EWHC 1439 (QB)). Warby J found that the body of the article made it clear that Mr Reza and Mr Spicer were both charged with and tried for causing death and serious injury by dangerous driving; that Mr Reza was convicted of both charges; but that Mr Spicer was acquitted of both. The headline was inconsistent with the article and, while some readers would only read the headline and not the rest of the article, that was not relevant as there is often discordance between headlines and text, and Mr Spicer was not identified until paragraph [4] of the article. Therefore, the only readers who could identify Mr Spicer as a subject of the article would also know the fuller picture presented in the rest of the article.

The Commissioner of Police put forward a defence of truth. Mr Spicer applied to have it struck out as an abuse of process, arguing that it was, in substance, a form of collateral attack on the result of the earlier criminal proceedings in which Mr Spicer had been acquitted.

Mr Justice Saini said that there are two general boxes into which the relevant abuse of process cases can be put: (i) the “re-litigation” of issues that were raised or should have been raised in earlier proceedings (which includes a form of res judicata) (Henderson v Henderson (1843) 3 Hare 100); and (ii) the “collateral attack” doctrine, where a party in ongoing litigation seeks to contradict an earlier relevant determination of a competent court or tribunal (Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL)).

Saini J agreed with Mr Spicer that if the Commissioner were allowed to maintain her defence of truth, the trial judge in the libel claim would have to decide whether the allegations of “racing” and “showing off” (which Warby J found to be central to the meaning of the article) had been established by the Commissioner on the balance of probabilities. The ultimate question was, therefore, whether the abuse of process doctrine prevented the Commissioner from running such a case.

Saini J found that there was no abuse of process for the following reasons:

  1. the parties to the two sets of proceedings were not the same. In the criminal proceedings, the CPS was the party prosecuting the case, acting independently from the police and the Government. “Right thinking people” would not regard the CPS and the police as the same person such that they should therefore be treated as one for the purposes of the abuse doctrine;
  2. Mr Spicer could not rely on Secretary of State for Business, Innovation and Skills v Weston (2014) EWHC 293 (Ch) to show that abuse of process did not apply only as between the same parties to the original proceedings, but as between the parties to the subsequent proceedings, even if one of those parties had not been a party to the original proceedings. In Weston, the court had refused to allow the Secretary of State to bring a claim seeking disqualification orders against the defendants under s 2 Company Directors Disqualification Act 1986, following their convictions on counts of fraud by the Crown Court, which had also considered the disqualification matter and rejected it. Those facts were very different to the facts of this case and, in any event, in Weston the Secretary of State had, in fact, participated to some extent in the criminal trial in the failed attempt to obtain a disqualification order. Therefore, the court had considered it an abusive attempt by the Secretary of State to take a second bite at the cherry;
  • case law has established that if the parties to later civil proceedings are not parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the “factual findings and conclusions” of the judge or jury in the earlier proceedings if: (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be re-litigated; or (ii) to permit such re-litigation would bring the administration of justice into disrepute. In this case, the jury’s verdict in the criminal proceedings that Mr Spicer was not guilty of the more serious charges did not amount to positive “factual findings or conclusions” about his conduct that had led to the criminal proceedings. It simply meant that his criminal liability had not been established;
  1. even if it could be inferred that the jury had rejected the “racing” and “showing off” allegations, they had done so by asking themselves whether they were “sure” that this had been established, as opposed to applying the civil standard “on the balance of probabilities” required in libel proceedings;
  2. there was no connection between the Particulars of Truth provided by the Commissioner and the charges faced by Mr Spicer. The question for the jury at the criminal trial had been whether Mr Spicer was guilty of causing death and serious injury by dangerous driving. By contrast, the meaning found by Warby J was not focused on whether or not Mr Spicer had, in fact, through his driving contributed to the accident and its consequences, but on Mr Spicer’s conduct in driving his car in the short period of time before the accident took place, which had then led to him being reasonably suspected of causing death and serious injury by dangerous driving;
  3. these proceedings would not result in conflicting decisions of the civil court and the criminal court;
  • the libel proceedings would not amount to a re-trial of Mr Spicer on the same evidence as had been before the criminal court, since the proceedings would not determine whether or not he had caused or contributed to the death of one of the victims. To argue that it was oppressive and unfair for the Commissioner to put forward a truth defence and that Mr Spicer would be “twice vexed in the same manner” was not sustainable as Mr Spicer had chosen to bring these proceedings himself; and
  • the ordinary and reasonable member of society would not consider that it was an affront to justice to allow the Commissioner to defend the allegations of “racing” and “showing off” in libel proceedings that Mr Spicer had brought against her.

Saini J also found that his conclusions were reinforced by the defamation and free speech context. To deprive a party of their right to establish that the facts recounted by them were true is a violation of their right to freedom of expression under Article 10 of the European Convention on Human Rights; it is an interference with that right that is not necessary in a democratic society. Saini J said that it was hard to conceive of circumstances where a court, by way of procedural bar, would allow a claimant to assert a libel, but tie a defendant’s hands to prevent her saying that what was published was true. The protections for free speech both at common law and under Article 10 would not allow this.

The application was dismissed. (William Alexander Spicer v The Commissioner of Police of the Metropolis [2020] EWHC 1778 (QB) (6 July 2020) — to read the judgment in full, click here).