Where a person is accused of a criminal offence, the effect on their reputation can be devastating and far-reaching, even where the allegation is untrue. It can affect a person’s personal and professional life, damaging relationships and impacting their employment prospects including promotions and future employment. Even if the allegation does not become a police matter, or the individual is cleared in court, the damage caused by the allegations can still be significant. It is understandable that people in these situations may wish to take legal action against those that falsely accused them. Whether or not this is possible depends on where the defamatory statement took place.
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Even where a defendant is found not guilty of a crime they have been accused of, there will still be damage to their reputation and this is obviously a concern for the individual involved. Those called to give evidence as witnesses or alleged victims can make statements that are technically defamatory. However, this does not mean that the defendant is able to bring a claim for defamation.
In some circumstances, it is possible for a person to make a statement that is defamatory in nature but does not make them liable. This is known as absolute privilege and applies even where the statement is untrue or malicious.
Absolute privilege applies to judicial proceedings. It allows all parties involved in a case to speak freely during proceedings about issues that are relevant to the particular case. Any statement made before a court are covered by privilege. This extends to all courts that are exercising functions that are the same as those of an established court and the proceedings are being used to determine truth and justice that is a public concern.
Protection is given to all those involved in the proceedings, such as:
Barristers and other lawyers
Those giving evidence, including witnesses and alleged victims
Expert witnesses (though experts no longer have absolute privilege protection from negligence claims)
All stages are covered, including the preliminary stages, so long as the statements are made for the use in the court proceedings on the subject that the case relates. It covers verbal statements as well as documents that form part of the case and includes:
Witness statements and interviews
Statements of case
Particulars of claim
The protection of privilege only applies to statements made that are relevant to the case. It does not apply to statements that have no connection to the subject matter of the proceedings. For example, if an allegation of a different offence is made during proceedings for an unrelated crime, then this is not covered by the privilege.
Privilege is also offered to those that report on judicial proceedings, if it was:
A fair and accurate report
The proceedings were heard in public
The report was published contemporaneously with the proceedings, which means as soon as practicable afterwards. For newspaper reporting, that would be in the next edition (usually the next day).
It is possible for an individual to be falsely accused be someone of committing a criminal offence without the matter being reported or pursued by the police. If a defamatory statement is made outside of judicial proceedings about a person committing a crime (for example is discussed in a newspaper article) then the accused person would be able to bring a claim of defamation. The protection of privilege does not apply where the matter is not being discussed as part of a court case.
The individual would be able to bring a claim for defamation in this case so long as they met all the necessary requirements.
The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.