Defamatory comments in victim impact statement

Harryhumanity

Hypothetical;
During a victim impact statement, if a victim makes statements (proven) untrue and they are quoted publicly outside the court, could this be considered slander or defamatory.
I know the VIS that they do not have to take an oath...thanks

28064212

IANAL, but I would think any defamation action could be defended using section 17 of the Defamation Act 2009:

it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought was
...
(g) made by a party, witness, legal representative or juror in the course of proceedings presided over by a judge, or other person, performing a judicial function
...
(i) a fair and accurate report of proceedings publicly heard before, or decision made public by, any court
...

My interpretation is that it would be fine for someone to say "A said XYZ in their statement", but not ok for them to say "XYZ" presented as their own statement

Fred Swanson

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Indricotherium

Harryhumanity wrote: »

Hypothetical;
During a victim impact statement, if a victim makes statements (proven) untrue and they are quoted publicly outside the court, could this be considered slander or defamatory.
I know the VIS that they do not have to take an oath...thanks

Struggling to see how this could happen. Surely if it's at the point of a victim impact statement facts are proven and the rest of the statement is personal together victim?

Peregrinus

Indricotherium wrote: »

Struggling to see how this could happen. Surely if it's at the point of a victim impact statement facts are proven and the rest of the statement is personal together victim?

No, not necessarily. The facts of the offence have been proven, but the Victim Impact Statement may contain further statements of fact about how the offence has impacted the victim or those around him, and those statements aren't established by evidence in the same way.

But 28064212 is correct. The Victim Impact Statement is the subject of an absolute privilege, as is any fair report of the VIS. But anyone - whether the victim or not - making the same claims of fact outside the context of the proceedings, or a report of the proceedings, would not benefit from the privilege.

coylemj

I recall a manslaughter case in Co. Cork a few years ago, someone from the deceased's family read out a VIS and dropped a grenade when they introduced 'facts' that had not been included in evidence. Up to that point, the public perception of the case (based on media coverage of the trial) had been that it was a bit of messing about between friends that went tragically wrong but what was said in the VIS put a very sinister complexion on the case.

Has anything happened to stop this from being repeated in the future - like does the judge get to read and approve it before it's read out in court? ? I think the judge in that case was very annoyed (and said so) but there was seemingly nothing he could do about it and what had been read out got reported in the media.

deandean

I think the Judge often reads over the VIS before permitting it to be read out in court. I guess he could disallow the VIS to be read out if there was trouble in the content. IIRC this came in after the above-mentioned Cork case - but I might be wrong.

Harryhumanity

What about an 'absolute' lie, in the statement, and maybe the judge does not object because he isn't aware it's a lie.

Question; outside a judge reading it, does the defendants counsel view it.

I mean what's to stop someone blaming many things on the defendant, say a person was about to loose a house anyhow, and decided to say 'well because of this case, I was so stressful, I stopped paying my mortgage and lost my house'

28064212

Harryhumanity wrote: »

What about an 'absolute' lie, in the statement, and maybe the judge does not object because he isn't aware it's a lie.

The absolute privilege referred to above comes in to play. Anything said in court proceedings can be defended against defamation

Harryhumanity wrote: »

Question; outside a judge reading it, does the defendants counsel view it.

Yes: https://www.dppireland.ie/victims_and_witnesses/making-a-victim-impact-statement/

10. What happens to my Victim Impact Statement?
Once you give your Statement to the Gardaí it becomes part of the evidence in the case. This means that your Victim Impact Statement can be seen by the prosecution team, the defence, the Gardaí, and the court.

Harryhumanity wrote: »

I mean what's to stop someone blaming many things on the defendant, say a person was about to loose a house anyhow, and decided to say 'well because of this case, I was so stressful, I stopped paying my mortgage and lost my house'

The victim is allowed say that in their statement, it does not mean the judge has to accept it as fact. Also, the defence can question the statement:

11. Can I be asked about my Victim Impact Statement?
Yes. If you make a written Victim Impact Statement the court or the defence may ask you questions about the content of the Statement to clarify certain points. If you are making an oral Victim Impact Statement, the court, the prosecution or the defence may also ask you questions about what you say.

Harryhumanity

Great answers, thank you...

Now this part..
"They are quoted publicly outside the court"
Let's say on a web forum/ paper/ radio/ tv, is anyone responsible for damage to the person's "good name or decent character"

Ah, another idea just dawned on me, can the said statement be "requested to be removed from published forum/ paper/TV/ radio".... I suppose a right to be forgotten thing?

coylemj

Harryhumanity wrote: »

Now this part..
"They are quoted publicly outside the court"
Let's say on a web forum/ paper/ radio/ tv, is anyone responsible for damage to the person's "good name or decent character"

No. If the words quoted are exactly what was said in court, absolute privilege applies.

Harryhumanity wrote: »

Ah, another idea just dawned on me, can the said statement be "requested to be removed from published forum/ paper/TV/ radio".... I suppose a right to be forgotten thing?

No, Google rules don't apply. It's an accurate account of court proceedings so can be quoted ad infinitum. This kind of thing is the bane of people's lives if they are considered fair game by the press through them being a minor celebrity or whatever. Some event occurs years down the line and the press use it as an excuse to drag up old scandals, especially salacious court cases.

Harryhumanity

Ok...so your saying they would have to quote the victim to stay on the clear side of defamatory.

What happens when said media mediums go OTT with juicing it up?

coylemj

Harryhumanity wrote: »

Ok...so your saying they would have to quote the victim to stay on the clear side of defamatory.

Quote what was said in court, it doesn't matter who said it.

Harryhumanity wrote: »

What happens when said media mediums go OTT with juicing it up?

They can get a slap on the wrist, as happened during the Catherine Nevin trial when her appearance (makeup and clothes) got the 'juicing up' treatment and the judge told them to lay off.

But the court reporters don't get into that area, they have special training which means they observe strict legal boundaries and only pass back what was said in court and can be reported. They know, for example, that they cannot report (for immediate publication) what was said during a trial in the absence of a jury.

hullaballoo

Sorry, but court reporters don't have any particular training. At least none of any quality. Most of the time, reports on court proceedings are entirely inaccurate.

4ensic15

The victim making the statement only enjoys qualified privilege. A reporter quoting it saying "x was said in court" enjoys absolute privilege. The defence of qualified privilege is not available if the statement was made maliciously. There could be issues for a reported if a statement was demonstrated to be false but the original statement was quoted without mentioning that it had been rebutted.

28064212

4ensic15 wrote: »

The victim making the statement only enjoys qualified privilege

How do you figure that? The defence of a statement in court is quoted above, and it's from section 17, titled "Absolute Privilege"

Fred Swanson

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28064212

Fred Swanson wrote: »

This post has been deleted.

Unless he qualifies it by saying "This is what I said in my impact statement: ..."

Squatter

hullaballoo wrote: »

Sorry, but court reporters don't have any particular training. At least none of any quality. Most of the time, reports on court proceedings are entirely inaccurate.

My mate is a court reporter and he's very upset at your slur.

He asked me to enquire whether your comment could be regarded as defamatory and if so, how can he sue you, please?

Sleeper12

Harryhumanity wrote:

Hypothetical; During a victim impact statement, if a victim makes statements (proven) untrue and they are quoted publicly outside the court, could this be considered slander or defamatory. I know the VIS that they do not have to take an oath...thanks

Hasn't this already happened? Young lad went missing in Cork 10 years ago. One of the ones in the search party was found guilty of manslaughter. The young lads mum said all sorts allegations that weren't true.

Squatter

Sleeper12 wrote: »

Hasn't this already happened? Young lad went missing in Cork 10 years ago. One of the ones in the search party was found guilty of manslaughter. The young lads mum said all sorts allegations that weren't true.

Correct. From memory, the distraught mother let fly with both barrels and mentioned some things that while factually correct, had been deemed inadmissible by the judge.

hullaballoo

Squatter wrote: »

My mate is a court reporter and he's very upset at your slur.

He asked me to enquire whether your comment could be regarded as defamatory and if so, how can he sue you, please?

Tell him to PM me the writ.

coylemj

Sleeper12 wrote: »

Hasn't this already happened? Young lad went missing in Cork 10 years ago. One of the ones in the search party was found guilty of manslaughter. The young lads mum said all sorts allegations that weren't true.

Squatter wrote: »

Correct. From memory, the distraught mother let fly with both barrels and mentioned some things that while factually correct, had been deemed inadmissible by the judge.

Correct? Didn't you contradict Sleeper12 there? He said 'allegations that were not true', you said 'factually correct'

Sleeper12

coylemj wrote:

Correct? Didn't you contradict Sleeper12 there? He said 'allegations that were not true', you said 'factually correct'

I'm not getting into details of the case or victim impact statement. I'd hate to think about the poor mum being online and reading the thread. I brought it up as an example. I'm happy to be corrected

Harryhumanity

We're gone a bit off subject, could I have a clear explanation... thanks in advance

Peregrinus

Harryhumanity wrote: »

We're gone a bit off subject, could I have a clear explanation... thanks in advance

How is post #2 not a clear explanation?

Harryhumanity

Peregrinus wrote: »

How is post #2 not a clear explanation?

Thanks for your input...really, other comments just confused my understanding.

context of the proceedings - so if it's not in context, a person could in fact launch a defamatory case, would that be correct?...

Peregrinus

Suppose the Victim Impact Statement says "In addition to the crime of which he has just been convicted, Harryhumanity is a serial child abuser!"

You cannot sue the victim who says that in his or her victim impact statement.

The Irish Times carries a report of the case, and mentions that the VIS included these allegations. You can't sue the Irish Times either.

But if some time later i say "Harryhumanity? Yes, I remember him. He's the serial child abuser, isn't he?", you can sue me.

Let's assume that the allegation is false, and will be shown to be false if the evidence is examined.

You also face a second problem of proving that my statement has damaged you. I'll point out that the allegation that you were a serial child abuser had already been made in a very public way, and had been widely reported, so whatever damage that allegation was going to do to your reputation had already been done long before I ever made my statement. So I'll argue that even if my statement is found to be defamatory, it hasn't injured your reputation in any significant way - your reputation was already in the toilet - so damages should be nil or nominal.

(This might not bother you, of course, if all you want is an opportunity to have the allegation tested in court so that you can have its falsity publicly verified.)

Mellor

Peregrinus wrote: »

Suppose the Victim Impact Statement says "In addition to the crime of which he has just been convicted, Harryhumanity is a serial child abuser!"

You cannot sue the victim who says that in his or her victim impact statement.

The Irish Times carries a report of the case, and mentions that the VIS included these allegations. You can't sue the Irish Times either.

Would there be a difference in the protection afforded to the Irish Times between saying;

The victim said in court that Harryhumanity is a serial child abuser!"

and

In addition to stealing orphans' donuts, Harryhumanity is also serial child abuser!"

The top one is a statement of fact, regardless of the accuracy of the allegation the allegation was made. The second one, is potentially false.

Harryhumanity

Jeez, I totally understand to need for a VIS...but as a "say what ever you can get away with, wether true or not" is a bit much, I have read up on some cases pro and against...but I'm now falling on the against side of the argument, it's simply not right to be able to 'assasinate' a person's character outside of what they are in court for and only for.....

Peregrinus

The first issue is not whether the underlying allegation is factual or not; it's whether the statement complained of is privileged.

If the Irish Times is giving a "fair and accurate report" of the court proceedings (as in your first example) that's privileged. A libel action cannot succeed. The truth of falsity of the underlying allegation doesn't enter into it.

But suppose the Irish Times is writing more generally about Harryhumanity. ("Harryhumanity - the cars, the girls, the drugs! On page 6 we show the pictures our children must never see!") They include a statement that "he is a serial child abuser". Or, they include a statement that "he has been accused of being a serial child abuser" or "many people regard him as a serial child abuser", but they do not present this as something said in court proceedings. What they have written is not privileged, because it's not a fair and accurate report of court proceedings. Harryhumanity can sue. Even though versions 2 and 3 of these statements are strictly true - he has been accused of being a serial child abuser; many people do regard him as one - that doesn't give the IT a defence. The "sting" of what they wrote, in all three versions, is that he is or is probably a serial child abuser; that's what most readers are going to take away from the article. So if the IT want to defend this on the basis that what they said is justified, they're going to have to convince the jury, to a high degree of probability, that Harryhumanity is indeed a serial child abuser.

Peregrinus

Harryhumanity wrote: »

Jeez, I totally understand to need for a VIS...but as a "say what ever you can get away with, wether true or not" is a bit much, I have read up on some cases pro and against...but I'm now falling on the against side of the argument, it's simply not right to be able to 'assasinate' a person's character outside of what they are in court for and only for.....

This isn't a special rule for Victim Impact Statements - everything said in court proceedings attracts a similar privilege.

Yes, it can work unfairly, but it's felt that there's a strong public interest in having people able to participate in court proceedings without the fear of being sued for what they say. (Especially as many people have no choice - if you are summonsed you must attend and give evidenced, if you are asked a question you must answer it, if as a lawyer your client instructs you to put certain matters to the court or to a witness you must put them, etc.)

Harryhumanity

Peregrinus wrote: »

This isn't a special rule for Victim Impact Statements - everything said in court proceedings attracts a similar privilege.

Yes, it can work unfairly, but it's felt that there's a strong public interest in having people able to participate in court proceedings without the fear of being sued for what they say. (Especially as many people have no choice - if you are summonsed you must attend and give evidenced, if you are asked a question you must answer it, if as a lawyer your client instructs you to put certain matters to the court or to a witness you must put them, etc.)

Yes, i understand, but is it not like "guilty without proof"...what happens to "innocent until proven guilty"..what supersedes what in this case?...I think, you should only be allowed reference the impact of the "charge" you are guilty of in the court, nothing else.

Mellor

Harryhumanity wrote: »

Yes, i understand, but is it not like "guilty without proof"...what happens to "innocent until proven guilty"

You are still innocent of everything they say until proven otherwise. If somebody calls you a murderer in a VIS. A murder conviction doesn't automatically get tacked on to your record.

Peregrinus

Harryhumanity wrote: »

Yes, i understand, but is it not like "guilty without proof"...what happens to "innocent until proven guilty"..what supersedes what in this case?...I think, you should only be allowed reference the impact of the "charge" you are guilty of in the court, nothing else.

Well, as pointed out, there is now a mechanism is place by which a VIS is previewed to ensure that it only containts relevant material. The VIS should deal with the effect on the victim of the crime of which the defendant has been convicted. So if I did want to say in my VIS that you are guilty of other crimes with which you have not been charged, that would be struck out.

But, yeah, I could still say things which have not (up to this point) been proven in evidence and which reflect badly on you. For example if you have been convicted of assaulting me I could say that after the assault, and even after your arrest, you continued to treat me callously and with contempt and to show no signs of remorse, and this has exacerbated the effect of the assault on me. That's proper material for inclusion in a victim impact statement, and you can't sue me for defamation.

But note that when I make a VIS I am giving evidence, just as if I had given evidence earlier in the trial about your guilt or innocence. So you, or your barrister, can cross-examine me to challenge the claims I am making about being callous and contemptuous. You can also ask the court to order that my VIS, or elements of it, is not to be published or broadcast.

Robbo

hullaballoo wrote: »

Sorry, but court reporters don't have any particular training. At least none of any quality. Most of the time, reports on court proceedings are entirely inaccurate.

It's quite staggering how someone can sit in a courtroom day-in day-out and still get the fundamentals wrong.