DARKER AND OTHERS V CHIEF CONSTABLE OF THE WEST MIDLANDS [2000] UKHL 44
FACTS:-
This case concerned the immunity of a police officer when giving evidence. The Claimants had faced trial in criminal proceedings, but in 1993 the trial was stayed for an abuse of process. The police had failed to give disclosure despite court orders, and the main prosecution witness failed to cooperate. The judge stayed the charges permanently and the Claimants were discharged.
They claimed damages from the police not for malicious prosecution, but for conspiracy to injure and misfeasance in public office. It was alleged that police officers knowingly instructed undercover agents to breach police instructions on operations, in particular that a police officer must not act as an agent provocateur and that the police officers manipulated a police informer to prevent the Claimants having a fair trial.
At first instance, the action was struck out and the Court of Appeal confirmed the decision. The Claimants appealed to the House of Lords.
JUDGMENT:-
Lord Hope said that when a police officer came to court to give evidence, he had the benefit of an absolute immunity. That immunity was considered necessary in the interest of the administration of justice and was granted to him as a matter of public policy. The same immunity was given to witnesses, the parties, their advocates, jurors and the judge.
However at the same time, a wrong ought not to be without a remedy. The immunity was a derogation from a person’s right of access to the court that required to be justified.
The claims had not been brought against the police for what they had said in the witness box, since that would attract the core immunity. The criminal trial had been stayed and struck out as an abuse of process. The claims were all based on allegations about things done by the police whilst they were engaged in the investigation of crime.
The rationale behind witness immunity was explained in the case of Silcott v Commissioner of Police for the Metropolis [1996] Admin LR 633.
Lord Hoffman had said in Taylor v Serious Fraud Office [1999] 2 AC 177 that the absolute immunity rule was designed to encourage freedom of speech and communication in judicial proceedings.
In Watson v McEwan [1905] AC 480 the court said that the public policy which rendered the protection of witnesses necessary for the administration of justice must as a necessary consequence extend to the preliminary examination of witnesses to find out what they can prove. In Evans v London Hospital Medical College and Others [1981] 1 WLR 184 it was held that the immunity was available to potential witnesses in criminal proceedings at a time when such proceedings were merely in contemplation. In X (Minors) v Bedfordshire County Council [1995] 2 AC 633 it was held that immunity would extend to an expert’s report prepared in contemplation of childcare proceedings. In Taylor v Serious Fraud Office [1999] 2 AC 177 it was held that the immunity extended also to statements made out of court which could fairly be said to part of the process of investigating a crime or a possible crime. The protection of the immunity was available even if the trial did not take place. (Simon v Callaghan [2000] 1 QB 75)
In Evans it was said that immunity must extend not only to the giving of evidence in court and formal statements made in preparation for the giving of evidence, but also to the acts of the witness in collecting or considering material. This decision was correct on its own facts, but Lord Hope would not accept this description of the extent of the immunity. The judge in that case said that if the immunity was not so extended, a convicted person could sue the police officers for the allegedly negligent manner in which they had investigated the crime. Lord Hope said that this confused the functions of the witness with that of the investigator. It was also important not to confuse the functions of the witness with the question of whether or not in particular circumstances, a duty of care was owed by the police or by prosecutors.
In Silcott v Commissioner of Police for the Metropolis [1996] 8 Admin LR 633 Simon Brown LJ said that he could see no difference between a police officer fabricating a record of interview and a police officer verballing an accused. The immunity should cover all such conduct.
Lord Hope said that he felt that Simon Brown LJ had gone too far in making this statement.
There was a crucial distinction between statements made by police officers prior to giving evidence and things said or done in the ordinary course of preparing reports for use in evidence. There was no good reason to extend the immunity which attached to things said or done by them which could not fairly be said to form part of their participation in the judicial process as witnesses. There could be no public interest in protecting those who produced false evidence.
In the present case, the allegations against the police officers were not related only to the content of the evidence that they might have given if they had been called upon to give evidence at trial. They related, at least in part, to things done by the police during the initial stage when they were acting as investigators, and these matters were not covered by witness immunity. Therefore the appeal would be allowed.
Lord McKay referred to the judgment of Drake J in Evans where the court said that immunity must attach to the acts of the witness in collecting and considering material, as well as the making of statements. If immunity did not attach, then a convicted person could sue police officers for the allegedly negligent manner in which they had investigated the crime, by complaining that they had wrongly assessed the evidential value of certain matters or had failed to interview possible witnesses.
In Evans the claim was based on a post mortem and analysis report, as a result of which proceedings had been taken against the Claimant. Negligence had led to the making of the report. Lord McKay concluded that this decision did not extend the immunity to alleged negligent conduct not reflected in a written report or statement.
Lord McKay also referred to the judgment of Simon Brown LJ in Silcott and agreed with Lord Hope. Immunity should not cover all conduct that could fairly be said to be of the investigatory process and preparatory process. If an officer gave evidence to the effect that he found drugs on a person that should be protected by immunity. However the actual planting of the drugs should not be so protected.
Lord Cooke said that it was obvious that none of the alleged conduct could fairly be said to be part of the process of investigating a crime. The essential point behind the witness immunity rule was the protection of those who might otherwise be falsely accused of such conduct. Absolute immunity was in principle inconsistent with the rule of law, but in a few, strictly limited categories, it had to be granted for practical reasons. Lord Cooke referred to the case of Rees v Sinclair [1974] 1 NZLR 180. A police officer who gave evidence was entitled to the same immunity as any other witness or potential witness. However conduct which was primarily and naturally to be seen as belonging to the investigatory function, should not be within the general protection.
Lord Cooke referred to case from the United States. In Imbler v Pacthman 424 US 409 (1976) the United States Supreme Court held by a majority that a state prosecutor who acted within the scope of his duties in initiating and pursuing a criminal investigation was absolutely immune from suit, even when he knowingly used perjured testimony, deliberately withheld exculpatory information or failed to make full disclosure of all facts casting doubt on the state’s testimony.
On the other side of the line was the case of Buckley v Fitzsimmons 113 S.Ct 2606 (1993) where it was held that a prosecutor’s alleged misconduct when endeavouring to determine whether a bootprint at the scene of the crime had been left by the suspect was closer to the investigatory and administrative function than to the prosecutorial. The prosecutors were entitled only to qualified immunity.
A similar case was Spurlock v Satterfield 167 F.3d 995 (United States Courts of Appeals, Sixth Circuit, 1999). The Defendants were a deputy sheriff and other law enforcement officials. This was a case where there was deliberate fabrication of evidence.
There was also some support from the case of Osman v United Kingdom (1998) 29 EHRR 245. This case had rejected blanket immunity for the police.
The Defendant’s counsel in this case said that there was no blanket immunity because a Claimant could bring an action for malicious prosecution if he could prove an absence of reasonable and probable cause for the prosecution. Lord Cooke said that he would not accept that it was a sound rule of public policy to prevent scrutiny of the investigation by a civil action in a case which might fall within one of the two classes, while allowing it in a case which might fall into another.
Lord Clyde said that it was temptingly easy to talk of the application of immunities from civil liability in general terms. However since the immunity might cut across the rights of others to a legal remedy, and so ran counter to the police that no wrong should be without a remedy, it should only be allowed with reluctance and should not readily be extended.
However some certainty was needed in relation to the scope of such immunity. The immunity could not depend upon the chance of a particular person being called as a witness in court. However as was said in the case of Evans the protection exists only where the statement of conduct was such that it could fairly be said to be part of the process of investigating a crime or a possible crime with a view to prosecution or possible prosecution of the matter being investigated. It was to the function that the immunity attaches rather than to the individual who performed it.
In drawing the line in any particular case it might be necessary to study precisely what was being done and how closely it was linked with the proceedings in court. No immunity should attach to things said or done which would not form part of the evidence to be given in the judicial process.
A witness was not immune from a charge of perjury. Immunity should not be given for matters which were designed to defeat the ends of justice rather than to serve them. The scope of the immunity as discussed in the case of Silcott was too widely expressed. To extend it to cover all conduct which could fairly be said to be part of the investigatory or preparatory process took it beyond the length of the intimate connection with the court proceedings and the extent which was necessary for the purposes for which it was granted.
Where evidence was fabricated or statements concocted, protection from attack should not be gained by a subsequent presentation of false testimony in court. As for the danger of having repeated litigation, in this case there had been no final decision.
In all the circumstances, the sole question was whether the claim made was clearly countered by an absolute immunity as to require it to be struck out.
Lord Hutton went over the facts of the case, and then some older cases, which had affirmed the principle of witness immunity. He alluded to the judgement of the court in Evans and also of Simon Brown LJ in Silcott. However there were considerations of weight that pointed to a different conclusion. The predominant requirement of a public policy was that those who suffered a wrong should have a right to a remedy and the case for granting an immunity should be clearly made out. The immunity in essence related to the giving of evidence. There was a distinction in principle between what a witness said in court and the fabrication of evidence, such as the forging of a suspect’s signature. The distinction might appear to be a fine one, but Lord Hutton felt that it was real.
In any event it was clear law that neither the police nor the Crown Prosecution Service were entitled to a blanket immunity. Actions for malicious arrest or malicious prosecution could be brought. Lord Hutton did not think that the absence of absolute immunity would deter police officers from doing their job. Immunity should not be extended to cover the wrongful fabrication of evidence. The Court of Appeal was in error in stating the immunity rule as widely as it did. Therefore the appeal would be allowed.
FACTS:-
This case concerned the immunity of a police officer when giving evidence. The Claimants had faced trial in criminal proceedings, but in 1993 the trial was stayed for an abuse of process. The police had failed to give disclosure despite court orders, and the main prosecution witness failed to cooperate. The judge stayed the charges permanently and the Claimants were discharged.
They claimed damages from the police not for malicious prosecution, but for conspiracy to injure and misfeasance in public office. It was alleged that police officers knowingly instructed undercover agents to breach police instructions on operations, in particular that a police officer must not act as an agent provocateur and that the police officers manipulated a police informer to prevent the Claimants having a fair trial.
At first instance, the action was struck out and the Court of Appeal confirmed the decision. The Claimants appealed to the House of Lords.
JUDGMENT:-
Lord Hope said that when a police officer came to court to give evidence, he had the benefit of an absolute immunity. That immunity was considered necessary in the interest of the administration of justice and was granted to him as a matter of public policy. The same immunity was given to witnesses, the parties, their advocates, jurors and the judge.
However at the same time, a wrong ought not to be without a remedy. The immunity was a derogation from a person’s right of access to the court that required to be justified.
The claims had not been brought against the police for what they had said in the witness box, since that would attract the core immunity. The criminal trial had been stayed and struck out as an abuse of process. The claims were all based on allegations about things done by the police whilst they were engaged in the investigation of crime.
The rationale behind witness immunity was explained in the case of Silcott v Commissioner of Police for the Metropolis [1996] Admin LR 633.
- To protect persons acting bona fide from the vexation of defending actions
- To avoid a multiplicity of actions in which the value or truth of witness evidence would be tried over again.
Lord Hoffman had said in Taylor v Serious Fraud Office [1999] 2 AC 177 that the absolute immunity rule was designed to encourage freedom of speech and communication in judicial proceedings.
In Watson v McEwan [1905] AC 480 the court said that the public policy which rendered the protection of witnesses necessary for the administration of justice must as a necessary consequence extend to the preliminary examination of witnesses to find out what they can prove. In Evans v London Hospital Medical College and Others [1981] 1 WLR 184 it was held that the immunity was available to potential witnesses in criminal proceedings at a time when such proceedings were merely in contemplation. In X (Minors) v Bedfordshire County Council [1995] 2 AC 633 it was held that immunity would extend to an expert’s report prepared in contemplation of childcare proceedings. In Taylor v Serious Fraud Office [1999] 2 AC 177 it was held that the immunity extended also to statements made out of court which could fairly be said to part of the process of investigating a crime or a possible crime. The protection of the immunity was available even if the trial did not take place. (Simon v Callaghan [2000] 1 QB 75)
In Evans it was said that immunity must extend not only to the giving of evidence in court and formal statements made in preparation for the giving of evidence, but also to the acts of the witness in collecting or considering material. This decision was correct on its own facts, but Lord Hope would not accept this description of the extent of the immunity. The judge in that case said that if the immunity was not so extended, a convicted person could sue the police officers for the allegedly negligent manner in which they had investigated the crime. Lord Hope said that this confused the functions of the witness with that of the investigator. It was also important not to confuse the functions of the witness with the question of whether or not in particular circumstances, a duty of care was owed by the police or by prosecutors.
In Silcott v Commissioner of Police for the Metropolis [1996] 8 Admin LR 633 Simon Brown LJ said that he could see no difference between a police officer fabricating a record of interview and a police officer verballing an accused. The immunity should cover all such conduct.
Lord Hope said that he felt that Simon Brown LJ had gone too far in making this statement.
There was a crucial distinction between statements made by police officers prior to giving evidence and things said or done in the ordinary course of preparing reports for use in evidence. There was no good reason to extend the immunity which attached to things said or done by them which could not fairly be said to form part of their participation in the judicial process as witnesses. There could be no public interest in protecting those who produced false evidence.
In the present case, the allegations against the police officers were not related only to the content of the evidence that they might have given if they had been called upon to give evidence at trial. They related, at least in part, to things done by the police during the initial stage when they were acting as investigators, and these matters were not covered by witness immunity. Therefore the appeal would be allowed.
Lord McKay referred to the judgment of Drake J in Evans where the court said that immunity must attach to the acts of the witness in collecting and considering material, as well as the making of statements. If immunity did not attach, then a convicted person could sue police officers for the allegedly negligent manner in which they had investigated the crime, by complaining that they had wrongly assessed the evidential value of certain matters or had failed to interview possible witnesses.
In Evans the claim was based on a post mortem and analysis report, as a result of which proceedings had been taken against the Claimant. Negligence had led to the making of the report. Lord McKay concluded that this decision did not extend the immunity to alleged negligent conduct not reflected in a written report or statement.
Lord McKay also referred to the judgment of Simon Brown LJ in Silcott and agreed with Lord Hope. Immunity should not cover all conduct that could fairly be said to be of the investigatory process and preparatory process. If an officer gave evidence to the effect that he found drugs on a person that should be protected by immunity. However the actual planting of the drugs should not be so protected.
Lord Cooke said that it was obvious that none of the alleged conduct could fairly be said to be part of the process of investigating a crime. The essential point behind the witness immunity rule was the protection of those who might otherwise be falsely accused of such conduct. Absolute immunity was in principle inconsistent with the rule of law, but in a few, strictly limited categories, it had to be granted for practical reasons. Lord Cooke referred to the case of Rees v Sinclair [1974] 1 NZLR 180. A police officer who gave evidence was entitled to the same immunity as any other witness or potential witness. However conduct which was primarily and naturally to be seen as belonging to the investigatory function, should not be within the general protection.
Lord Cooke referred to case from the United States. In Imbler v Pacthman 424 US 409 (1976) the United States Supreme Court held by a majority that a state prosecutor who acted within the scope of his duties in initiating and pursuing a criminal investigation was absolutely immune from suit, even when he knowingly used perjured testimony, deliberately withheld exculpatory information or failed to make full disclosure of all facts casting doubt on the state’s testimony.
On the other side of the line was the case of Buckley v Fitzsimmons 113 S.Ct 2606 (1993) where it was held that a prosecutor’s alleged misconduct when endeavouring to determine whether a bootprint at the scene of the crime had been left by the suspect was closer to the investigatory and administrative function than to the prosecutorial. The prosecutors were entitled only to qualified immunity.
A similar case was Spurlock v Satterfield 167 F.3d 995 (United States Courts of Appeals, Sixth Circuit, 1999). The Defendants were a deputy sheriff and other law enforcement officials. This was a case where there was deliberate fabrication of evidence.
There was also some support from the case of Osman v United Kingdom (1998) 29 EHRR 245. This case had rejected blanket immunity for the police.
The Defendant’s counsel in this case said that there was no blanket immunity because a Claimant could bring an action for malicious prosecution if he could prove an absence of reasonable and probable cause for the prosecution. Lord Cooke said that he would not accept that it was a sound rule of public policy to prevent scrutiny of the investigation by a civil action in a case which might fall within one of the two classes, while allowing it in a case which might fall into another.
Lord Clyde said that it was temptingly easy to talk of the application of immunities from civil liability in general terms. However since the immunity might cut across the rights of others to a legal remedy, and so ran counter to the police that no wrong should be without a remedy, it should only be allowed with reluctance and should not readily be extended.
However some certainty was needed in relation to the scope of such immunity. The immunity could not depend upon the chance of a particular person being called as a witness in court. However as was said in the case of Evans the protection exists only where the statement of conduct was such that it could fairly be said to be part of the process of investigating a crime or a possible crime with a view to prosecution or possible prosecution of the matter being investigated. It was to the function that the immunity attaches rather than to the individual who performed it.
In drawing the line in any particular case it might be necessary to study precisely what was being done and how closely it was linked with the proceedings in court. No immunity should attach to things said or done which would not form part of the evidence to be given in the judicial process.
A witness was not immune from a charge of perjury. Immunity should not be given for matters which were designed to defeat the ends of justice rather than to serve them. The scope of the immunity as discussed in the case of Silcott was too widely expressed. To extend it to cover all conduct which could fairly be said to be part of the investigatory or preparatory process took it beyond the length of the intimate connection with the court proceedings and the extent which was necessary for the purposes for which it was granted.
Where evidence was fabricated or statements concocted, protection from attack should not be gained by a subsequent presentation of false testimony in court. As for the danger of having repeated litigation, in this case there had been no final decision.
In all the circumstances, the sole question was whether the claim made was clearly countered by an absolute immunity as to require it to be struck out.
Lord Hutton went over the facts of the case, and then some older cases, which had affirmed the principle of witness immunity. He alluded to the judgement of the court in Evans and also of Simon Brown LJ in Silcott. However there were considerations of weight that pointed to a different conclusion. The predominant requirement of a public policy was that those who suffered a wrong should have a right to a remedy and the case for granting an immunity should be clearly made out. The immunity in essence related to the giving of evidence. There was a distinction in principle between what a witness said in court and the fabrication of evidence, such as the forging of a suspect’s signature. The distinction might appear to be a fine one, but Lord Hutton felt that it was real.
In any event it was clear law that neither the police nor the Crown Prosecution Service were entitled to a blanket immunity. Actions for malicious arrest or malicious prosecution could be brought. Lord Hutton did not think that the absence of absolute immunity would deter police officers from doing their job. Immunity should not be extended to cover the wrongful fabrication of evidence. The Court of Appeal was in error in stating the immunity rule as widely as it did. Therefore the appeal would be allowed.