– Zia Akhtar
Grays Inn.
– Suella Braverman’s remarks about ‘Pakistani men’ need examination against the law of defamation and the defence of Parliamentary privilege.
Abstract
In an interview on Sky television on 3 April 2023 the UK Home Secretary, Suella Braverman stated that “Pakistan-origin men” were responsible for “grooming white English girls” who were “vulnerable” and often “in care”. She also stated that Pakistani men held cultural values which were diametrically opposed to British values and called them “heinous”. This statement was aired to a live audience and was followed by an article written by her in the Statesman on 24 April when she justified her statement under the title ‘The Truth Can’t be racist’. This statement has drawn a strong reaction and is defamatory of a class of persons and it is necessary to examine if the Home Secretary was making a statement in the public interest and if it was made with honesty and as fair comment. If that does not suffice will the defence of qualified privilege succeed against the vilification of the community that could be argued in court ?
Introduction
The subject of underage sex grooming has been a topic for the criminal law to address under the legal statutes that are in place to eradicate this crime. This has been in the media spotlight for the last decade and the prosecution of those involved in its commission has been the subject of much conjecture. The publicity and nature of the crime has raised the spectre that Pakistani men may be disproportionately represented in committing these crimes. There was a period between 2010-14 when towns in Greater Manchester and South Yorkshire with heavy migrant concentration reported the incidence of under age sex grooming, and the focus was shifted onto the origins of the offenders.
The offences took place within a certain parameter of the towns of Rochdale, Rotherham and Telford where some of the perpetrators were identified as of Pakistani origin who were acting in ‘group’ or co conspirators. The offenders were charged with offences of grooming which was in most cases street sex grooming and not online grooming because in this format they would need to have forged an intimate friendship in the internet chat rooms, that needs cultural familiarity, to be accused of offence online.
The issue led to media attention in 2014 when there were a few reported cases of Asian men acting as accomplices who had been grooming English girls. The issue has drawn much attention from academic researchers, social scientists and NGOs responsible for child welfare. It seems that an industry had grown around the notion that Pakistani men have a predisposition in the conduct of this offence even if the evidence does not amount to any overwhelming involvement of Pakistani men. The factor of race is magnified because of the input of so many experts from different ends of the spectrum.
The issue why has the Home Secretary Suella Braverman raised the ethnicity of the perpetrators when she has not produced any evidence of recent convictions or trials involving Pakistani men who have been charged ? Is she playing the race card towards accruing political capital ? Does her assertion that perpetrators are “almost all Pakistanis” confirm the stereotypical images and raise the bar of prejudice against the Pakistani community already beleaguered by the crises unfolding in that country because of a military crackdown and political turmoil ?
The comments had an immense impact on the morale of Pakistanis in the UK and there were rebuttals in the media and letters written by high profile members of the community, including to the Prime Minister, Rishi Sunak to disown the statements of the senior Minister in his Cabinet. There was complete silence from the government but Suella Braverman, rather than retraction, chose to defend her statement in a Spectator article which defended her remarks and the issue is she has brought the community into disrepute in the estimation of the ‘reasonable’ and ‘unbiased’ members of society.
The road map of this paper is as follows: Part I considers the action in defamation and the principles under the Defamation and Malicious Publication (Scotland) Act 2021 which mirrors English law in the test of serious harm; Part 2 examines the comments made by the Home Secretary and if they were honest, truthful and in the public interest based on the evidence; and Part 3 concerns the availability of privilege as defence when making a statement by an MP which is likely to cause harm to reputation of the community. .
1/
Defamatory comments and harm to reputation
In order to examine the Home Secretary’s comments as giving rise to slander or libel they need to be ascertained for their meaning. She states in her TV interview :
“(We see) a practice whereby vulnerable white English girls – sometimes in care, sometimes in challenging circumstances – being pursued, raped, drugged, and harmed by gangs of British Pakistani men, who work in child abuse rings or networks”.
She also stated
“There have been several reports since about the predominance of certain ethnic groups and I say, British Pakistani males – who hold cultural values totally at odds with British values, who see women in a demeaned and illegitimate way and who pursue an outdated and frankly heinous approach in terms of the way they behave.”
This will bring within it a class of persons who have been disparaged by these remarks and as the vitriol is directed at Pakistani men it leaves no doubt that she views them as perpetrators sui generis. This is obvious from the ordinary meaning of words as spoken which she then affirmed in her article where she defended her use of language that claimed grooming gang members are “almost all British-Pakistani”, describing them as “unfashionable facts”. She also stated that it was not racist to speak “plain truths” – and that there was “ something peculiar about this political moment, where those of us advancing unfashionable facts are beaten over the head with fashionable fictions”.
The test of defamation has to satisfy the test of serious harm and the seriousness of this has to be substantial. This is set out in the Defamation and Malicious Publication (Scotland) Act (DMPSA) 2021 which has finally codified the law of defamation in Scots law.[i] Prior to this Act, the law of defamation in Scotland was based in the common law, spread across various judgments in a ‘patchwork quilt’ of case law which has now been codified into a common law based framework.
The 2021 Act establishes the actionability of defamatory statements confirming that it applies, where one person makes a defamatory statement about another person. By interpretation, that “person” may be a natural person or an entity, including a corporate body, an unincorporated association, or a partnership. This follows closely the common law test adopted in Sim v Stretch [1936] 2 All ER 1237 as a starting point. as regards the nature of a defamatory statement which has been held to represent the law in Scotland (Steele v Scottish Daily Record and Sunday Mail Ltd. 1970 SLT 52).
The DMPSA sets out the test of serious harm to reputation and at present there is no test of serious harm in Scottish law and it will mirror the test of serious harm in English law set out in Section 1 of the Defamation Act 2013.[ii] In Lachaux v Independent Print Ltd [iii] the Supreme Court established the seriousness of harm test to be determined with reference to the actual impact of the statement and not just the meaning of the words. The Court stated that it is the tendency to cause harm to reputation, that “has caused or is likely to cause” harm which is “serious”. [iv] This not only relates to the seriousness of the allegations and the people to whom it was published, but “specific evidence showing reputational harm in meeting the threshold”. [v]
The Court further stated that this can be established by reference to the impact which the statement has had which depends on a combination of the “inherent tendency” of the words and to whom they were communicated.’[vi] It may also includes potential harm because the Court added that “[t]he same must be true of the reference to harm which is ‘likely’ to be caused. In this context, the phrase naturally refers to probable future harm”.[vii]
However, differences in procedure and practice meant that, for example, an English decision on the particulars of pleading might be less persuasive than one involving the purely legal issue of whether the words complained of were capable of bearing a defamatory meaning. In a material change from the existing Scots law, under the 2021 Act, the statement complained of must have been published to a person other than the one who is the subject of the statement. In the past an action lay for injury caused by a defamatory statement even if not published to a third party and only to the aggrieved party. (Mackay v M’Cankie (1883) 10 R 537).
2/
Defence of truth, honest opinion and public interest
There needs to be consideration of the veracity of the Home Secretary’s comments and the fact of whether it is possible that the above defences were available to her in this instance of defaming the Pakistani community. The DMPSA has abolished the common law defence of “veritas” and a statutory defence under Section 5 known simply as the “defence of truth” (essentially on the same terms) is included. As there are no Scottish cases on this provision it will have to follow English precedence.
In this instance the there is a presumption that the defamatory words were false and it is upto the defendant to establish the words were true. The Home Secretary will also have to establish that the words were on a matter of public interest and this is regardless of whether the statement was a fact or an opinion. This is tied in with the defence of public interest.
In English law this was governed by the decision in the case of Reynolds v Times Newspaper Limited [viii] This had to establish the statement was based on responsible journalism, adjudged under a non exhaustive list of factors and that it was in the public interest. There is a statutory defence included in Section 6 which requires that the statement is on a matter of public interest where the author believed that publishing was in the public interest. This defence may be relied upon irrespective of whether the statement complained of is a statement of fact or of opinion.
In the English case of Serafin v Malkiewiez[ix] the Supreme Court stated that the question was not whether the article was in the public interest but whether it was on the matter of public interest. This had to a ruling that considers the public interest in accordance with the two limbs of Section 4 under Defamation Act 2013 does not operate a “checklist” but a range of factors that will determine whether it was in the public interest.[x]However, he confirmed that one or more of the Reynolds factors may well be relevant to whether the defendant’s belief was “reasonable within the meaning of section 4(1)(b)”.
In Scots law the concept of the public interest defence existed under the ‘Reynolds principle was followed and the defence had to meet the standards of “reasonable journalism” with reference to a non exhaustive checklist under the previous Reynolds test. [xi] There is a possibility of being to raise the statutory defence of “honest opinion”, under Section 7 of the DMPSA which requires that the statement is an opinion, when the publisher makes obvious that the evidence on which the statement is based constitutes an opinion which any reasonable third party could have established, on any part of the evidence presented. The defence fails if the publisher cannot prove that the opinion conveyed is ‘genuinely’ held.
The statement of the Home Secretary is not likely to succeed on any of the above defences because her allegations are contrary to the available evidence that is available on the matter. In a 2020 study by the Home Office research the findings showed that the “that group-based Child Sex Exploitation (CSE) offenders are most commonly White”.[xii] The study also stated that links between ethnicity and this form of offending cannot be proven”.[xiii]
The previous research on the same issue in 2015 had found that of 1,231 perpetrators of group and gang-based child sexual exploitation, 42 per cent were White, 14 per cent were Asian or Asian British and 17 per cent were Black.[xiv] The exploitation of data and focus on ethnicity for political gain also has a discriminatory effect on the impact of the crime on victims who are from minority ethnic groups.[xv]
The defence of truth, honest opinion and public interest will not be available to the Home Secretary. It is obvious that she was driven by malice towards the Pakistani community and that her statements were not objective and they were against the evidence that the Home Office has published in considering the background of the perpetrators of this crime.
3/
Defence of parliamentary privilege
If the Home Secretary cannot avail the defences of truth, publication on a matter of public interest, or honest opinion, then she would have to fall back on privilege as an available defence. The DMPSA makes clear that certain statements will be protected by absolute or qualified privilege.[xvi] The contemporaneous publication of a statement which is a fair and accurate report of public court proceedings is absolutely privileged under Section 9. The effect is to exclude (or in the case of qualified privilege, restrict) the bringing of defamation proceedings even where there is evidence that the statement was made with malice.
In this instance the statement was not made in Parliament and the issue is if the defence of qualified privilege will be available under Section 11. This defence is also available if the statement is published in an academic journal. This does not preclude an action in defamation if the statement has been motivated by malice and the defence will then be vitiated. The Home Secretary statement was made in The Spectator which is the flagship journal of the Conservative party and is not an academic journal in which she justified her comments and called them “truthful”.
The scope of the defence will again look to English law for guidance and this will based on the common law judgments by the courts. In Clift v Slough Borough [xvii]it was held that there was a relationship between the qualified privilege defence to claims for libel and the public law duties of public authorities, in particular the duty imposed by section 6 (1) of the Human Rights Act 1998 to act compatibly with Convention Rights. The judge held that a public authority should only be entitled to rely on the defence qualified privilege if publication was in compliance with their public law obligations under the European Convention (ie. publication must be shown to be necessary and proportionate). The public authorities “should only publish information for the purpose of and to the extent necessary for performance of its public duty and in accordance with its obligations under the HRA”.[xviii]
The exemption will not apply in this case of the Home Secretary’s remarks because they were not made in her personal capacity but as a public authority in executing her functions as a government minister. Moreover, there will no qualified privilege if the comments were “Ill-considered and indiscriminate disclosure is bound to be disproportionate and no plea of administrative difficulty in verifying the information and limiting publication to those who truly have the need to know or those reasonably thought to be at risk can outweigh the substantial interference with the right to protect reputations”.[xix]
The only requirement is to prove express malice and in this instance the Home Secretary ‘s contempt and ridicule for Pakistani men is self evident. The extent of Malice, in a libel context, can be established if the defendant makes the statement for some dominant improper motive. If it can be shown that defendant did not believe the words to be true, or was reckless as to their falsity, then that is generally conclusive evidence to show that the defendant has acted with a dominant improper motive.
Conclusion
The Home Secretary, Suella Braverman who made the derogatory comments about Pakistani men was the author, editor and the publisher of the statements. Under the DMPSA 2021 Act the actionability of defamatory statements is confirmed where one person makes a defamatory statement about another person and by interpretation, that “person” may be a natural person or an entity, including a corporate body, an unincorporated association, or a partnership. The categories of defamation does not exclude that of a community and each instance can be unique in the circumstances of the person’s reputation who is a member of the class to be lowered in the estimation of ordinary persons.
In this instance the test of serious harm can be satisfied by the heinous nature of the allegations and the association of an entire community to a crime that it is repugnant to the entire population. The Home Secretary was acting from pre conceived bias against Pakistani men and the vitriol she poured on them came from a poison tipped pen. This cannot be allowed to go un challenged and there is sufficient evidence to proceed on the basis of a cause of action in defamation in Scotland based on her sui generis comments on Pakistani and test the remit of the Act in the courts.
[i] Section 1 Actionability of defamatory statements
(1)This section applies to a defamatory statement made or published by a person (A) about another person (B).
(2)A right to bring defamation proceedings in respect of the statement accrues only if—
(a)A has published the statement to a person other than B, and
(b)the publication of the statement has caused (or is likely to cause) serious harm to the reputation of B.
[ii] The 2021 Act, to a significant extent, mirrors the Defamation Act 2013 which had very limited applicability to Scotland. (Sections 6, 7(9) and 15).
[iii] (2019) UKSC27
[iv] Lord Sumption, Para 16
[v] Ibid, Para 17
[vi] Ibid para 20
[vii] Ibid
[viii] [2001] 2 A.C. 127.
[ix] (2020) UKSC 23
[x] Lord Wilson at 66
[xi] Lord Clark stated in Wildcat Haven Enterprises CIC v Wightman [2020] CSOH 30
[xii] Group-based Child Sexual Exploitation Characteristics of Offending
December 2020, Home Office. para 17, page 7. https://www.gov.uk/government/publications/group-based-child-sexual-exploitation-characteristics-of-offending/group-based-child-sexual-exploitation-characteristics-of-offending-accessible-version
[xiii] Ibid quoting from S. Berelowitz, S., Ritchie, G., Edwards, G., Gulyurtlu, S., and Clifton, J. “If it’s not better, it’s not the end” Office of the Children’s Commissioner’s Inquiry into Child Sexual Exploitation in Gangs and Groups: One year on. (2015)London: Office of the Children’s Commissioner for England.)
[xiv] Ibid p 26
[xv] E. Cockbain, W Tufail, ‘Failing victims, fueling hate: challenging the harms of the “Muslim grooming gangs” narrative’, Race and Class, 61 (3), (2020) pp 3–32.
[xvi] The 2021 Act re-enacts the provisions in respect of absolute and qualified privilege in sections 14, 15 and schedule 1 of the 1996 Act, along with sections 6 and 7(9) of the 2013 Act, insofar as applicable to Scotland, subject to various very minor adjustments.
[xvii] [2009] 1550 QB
[xviii] LJ Ward Para 39
[xix] Para 43 quoting j Tughenhat at 151 at first instance.
Image credit: By Kim Traynor – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=22544850
