UK: Publish And Be Damned? Clift v Slough Borough Council

Last Updated: 13 February 2011
Article by John Goodman, David Knapp and Tom Walshaw

When is a local authority justified in publishing the name of an individual as a new addition to its Potentially Violent Persons Register? Can a public authority ever do that, or will it always be in breach of that person's human rights?

Local authorities must understand and take into account the important Court of Appeal case of Clift v Slough Borough Council.

But first a word of warning: while it is vital that local authorities understand this case and adjust their policies accordingly, we are seeking leave to appeal the case to the Supreme Court so you will need to keep abreast of developments in this case. We shall update you in due course.

The facts

Mrs Clift had an altercation with a member of the public in a council garden after a little boy had trampled on some flowers. Mrs Clift had a telephone conversation the next day with the Council's Anti Social Behaviour Coordinator. The conversation went horribly wrong. It led to further complaint by Mrs Clift during which she made remarks which were taken as threatening Council staff. These included:

  • a remark over the telephone that she wished that the co-ordinator would drop dead;
  • a statement in a letter that if she had met the co-ordinator then she would have physically attacked her; and
  • repeating during a meeting that she would have hit the co-ordinator if she could have.

So, this event, which started with a little boy trampling on some flowers, ended up with Mrs Clift being put on the Council's Potentially Violent Persons Register.

In accordance with normal procedure a Council officer sent an email about this latest addition to the Register to 66 Council officers across the following departments:

  • Trading Standards;
  • Neighbourhood Enforcement and Community Safety;
  • Licence;
  • Food and Safety; and
  • Children and Education Services.

The officer also sent the email to a number of partner organisations outside the Council in the following areas:

  • refuse collection and road sweeping;
  • building maintenance for Council-owned properties (the claimant – Mrs Clift – did not live in a Council-owned property);
  • the PCT – with Social Service-related activities; and
  • Community Safety Partnership including about 50 businesses.

This took the total number of people emailed to about 150.

The key issue

Mrs Clift claimed that the Register and the email were defamatory of her. The Council pleaded justification but the jury at first instance found against it. The key remaining issue was whether the words complained of were published on an occasion of qualified privilege. Qualified privilege is a longestablished defence to a claim in defamation on the basis that free and frank communication is essential for the general interest of society in this kind of situation, especially where there is a duty or an interest to communicate the information and there is a corresponding interest in receiving it. The Council claimed that the words published were not published maliciously (evidence of malice can defeat the defence of qualified privilege) and so this was a classic example of the qualified privilege defence.

The Council had the backing of longestablished case law in its favour.

But what of the arrival of the Human Rights Act? The Council had a public law duty to uphold the claimant's human rights, including her Article 8 rights to her reputation.

The case therefore turned on the apparent clash between the defence of qualified privilege and the claimant's Article 8 rights.

Court of Appeal decision

The Court of Appeal has upheld the decision of the trial judge in favour of Mrs Clift that her Article 8 rights were indeed breached by this email sent out on a "blanket" basis. It held that her Article 8 rights having been engaged, the publication could only be justified if it was necessary for a legitimate aim and if it was proportionate to that aim. It distinguished between publication to Council officers who were likely to come into contact with the claimant and those who were not.

Publication to Council officers likely to come into contact with her (and their managers) was justified (ie, Trading Standards, Neighbourhood Enforcement and Community Safety) but the wider publication both within and outside the Council to those who were not likely to come into contact with her was not justified.

So the Council ought to have undertaken a balancing exercise between the competing rights of the community on the one hand and the human rights of the individual on the other. In other words, the concept of qualified privilege did not throw a blanket defence around the entire publication in the human rights era. Publication to those who were not likely to be approached by the claimant was disproportionate because they were not at risk of harm from her.

The trial judge considered this approach was consistent with the Council's duties under the Data Protection Act, although this point was not fully argued.

How should councils respond?

1 We are seeking leave to appeal to the Supreme Court so any advice in this note is necessarily temporary.

2 Having a Register of potentially violent persons is not in itself problematic – it is within the law.

3 Holding the names of people on such a Register is also within the law.

4 Publishing the names of those on the Register may in certain circumstances be within the law.

5 What circumstances? Councils cannot argue that administrative convenience requires them to be able to send out "blanket emails" on the basis that to pick and choose recipients would make life impossible.

6 Instead, Councils have to decide, on a case-by-case basis, who the Register should be published to. There has to be an assessment of who is likely to come into contact with the person in question. Local authorities would be well advised to maintain a written record of this assessment to be able to justify the decision at a later date. So they must make a careful and considered assessment on this basis of who to send the email (or other communication) to before there is any publication at all. It would not, for example, be sensible to email a potential recipient to check whether or not they might come into contact with the Claimant as part of that assessment. Such an email could in itself expose the Council to a claim in defamation without a defence.

7 We believe that so long as the assessment is careful and considered, and carefully recorded, local authorities should have confidence in undertaking this process. We believe the Court will be reluctant to substitute its own balancing exercise so long as the decision and the basis for it, appears rational and sensible.

8 The weaker the case to justify placing a person on the Register, the more careful a Council should be about who they send the information to. The converse applies too: with a person who is obviously violent the Council is likely to have the defence of justification.

9 There is nothing inherently problematic in emailing partner organisations so long as the publication can be justified on the above basis. The mere fact that the recipient does not work for the Council does not mean that publication to them cannot be justified as proportionate, so long as the above test is satisfied.

10 It is well worth viewing the guidance from the Information Commissioner on this topic which can be viewed at and .

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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