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England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [1996] 8 Admin LR 633, [1996] EWCA Civ 1311

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Neutral Citation Number: [1996] EWCA Civ 1311
QBENI 95/0709/E

(Mr Justice Drake)

Royal Courts of Justice
London WC2
24th May 1996

B e f o r e :



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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
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LORD WILLIAMS OF MOSTYN QC and MR E REES (Instructed by Bindman & Partners, WC1X 8QF) appeared on behalf of the Appellant
MR R SEABROOK QC and MR D MacLEOD (Instructed by the Official of the Solicitor, Metropolitan Police, SW1H OBG) appeared on behalf of the Respondent



Crown Copyright ©

    Friday, 24th May 1996

    LORD JUSTICE SIMON BROWN: This is a plaintiff's appeal against the order of Drake J on 12th April 1995 dismissing his appeal against the striking-out order made by Master Eyre on 2nd February 1995.

    In a sentence, the plaintiff served a Statement of Claim upon the defendant commissioner pleading three causes of action respectively:

    (1) conspiracy to pervert the administration of public justice;
    (2) misfeasance in a public office, and
    (3) malicious prosecution.

    The first two have been struck out; the third stands. By this appeal the plaintiff seeks to have the first two reinstated.

    The principal advantage to the plaintiff of succeeding upon the appeal, let it be made plain at once, is that he would be spared the need to prove the absence of reasonable and probable cause to prosecute, one of the essential ingredients of the tort of malicious prosecution but an ingredient lacking from the other two causes of action. I should add that proof of malice is required for all three.

    With that short introduction let me set out the relevant facts which for the most part I gratefully take from the judgment below. On 6th October 1985 Police Constable Blakelock was killed during a riot on a housing estate at Tottenham in North London. On 12th October at 6.45 p.m. the plaintiff was arrested by Detective Chief Superintendent Melvin for the murder. He was taken from the Tottenham Police Station to Paddington Green Police Station arriving there at 9.03 p.m.

    He was there interviewed by Detective Chief Superintendent Melvin and Detective Inspector Dingle, once on 12th October and four times on 13th October. Detective Inspector Dingle wrote notes purporting to be a contemporaneous record of what the plaintiff said in answer to questions by Detective Chief Superintendent Melvin during the interview which took place between 7.11 and 8 p.m. on 13th October. Detective Chief Superintendent Melvin countersigned those manuscript notes. At 8.45 p.m. on 13th October Detective Chief Superintendent Melvin charged the plaintiff with the murder of Police Constable Blakelock.

    On 19th March 1987 at the Central Criminal Court the plaintiff was convicted of the murder and of riot. He was sentenced to life imprisonment and ten years' imprisonment respectively. The trial judge recommended that he serve not less than 30 years of the life sentence.

    The only witness against the plaintiff at the trial was Detective Chief Superintendent Melvin. He produced the notes made by Detective Inspector Dingle and presented them as a true record of the interview. The notes contained admissions or partial admissions by the plaintiff of his guilt. The plaintiff did not himself give evidence at the trial.

    On 25th July 1991 the Home Secretary ordered an investigation which embraced an enquiry into the way in which the interviews had been conducted and the authenticity of the notes of interview. In the course of that investigation, carried out by officers of the Essex Constabulary, Detective Chief Superintendent Melvin said that the notes of the interview were a true record. On 1st October 1991 the Home Secretary referred the convictions to the Court of Appeal (Criminal Division) under section 17 of the Criminal Appeal Act 1968. On 15th November 1991 the Court of Appeal quashed the convictions on the basis that they were unsafe and unsatisfactory. The prosecution did not resist the appeal.

    On 16th March 1993 the plaintiff's writ in the present action was issued. The Statement of Claim was served on 29th June 1993. The plaintiff's pleaded case (which for the purpose of deciding a striking-out application must be assumed to be true) is as follows:

    (1) The notes are a false record; the questions were not asked and the answers were not given.
    (2) They were the result of an agreement between the two police officers to create a false record in order to harm the plaintiff by showing that he had murdered Police Constable Blakelock.
    (3) The false record did harm the plaintiff in that it contributed to his conviction for murder.
    (4) The intention of the two police officers was to pervert the course of the investigation into that murder.
    (5) In agreeing to create and in creating the false notes the two police officers acted maliciously and in the knowledge that they were abusing the office of constable.

    Although as I repeat those pleaded allegations are for present purposes to be assumed true, I should emphasise two matters: first, that the plaintiff's case against these police officers (who were acting under the control of the defendant commissioner) has not yet been tried or adjudicated upon; second, that the two officers were charged with conspiracy to pervert the course of justice and with perjury, tried at the Central Criminal Court, and on 26th July 1994 both acquitted by unanimous jury verdict on each count.

    The action had been stayed pending that criminal trial. Once it was over, the defendant issued his striking-out application with the result already indicated.

    The issue raised on appeal remains, as it was identified below, "whether the alleged actions of the police officers are protected from any civil action for conspiracy to pervert the course of justice or misfeasance in a public office by reason of a cloak of absolute immunity conferred as a matter of public policy."

    It has never been suggested that the plaintiff should be legally barred from pursuing his action for malicious prosecution.

    Before turning to the arguments, it is convenient to indicate something of the relevant law. Rather than refer in detail to the various authorities, I propose to set out, with only very limited citations, what I take to be the central principles in play.

    (1) There exists a fundamental rule of law that:

    "no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice."

    per Kelly Dawkins v Lord Rokeby [1873] L.R. 8 Q.B. 255. As Sellers LJ put it in Marrinan v Vibart [1963] 1 Q.B. 528 at 535:

    "Whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given."

    I shall call this the immunity rule.

    (2) The public policy purposes underlying the immunity rule are essentially twofold. First, per Fry LJ in Munster v Lamb (1883) 11 QBD 588:
    "... to protect persons acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions."

    Second, as Lord Wilberforce said in Roy v Prior [1971] A.C. 470 at 480:

    "... to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again",

    in other words to avoid the impeachment of evidence given and conclusions reached in one trial by subsequent collateral challenge.

    (3) The immunity rule applies in the context of criminal proceedings
    "... only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or possible prosecution in respect of the matter being investigated",

    per Drake J in Evans v London Hospital Medical College and
    others [1981] 1 A.E.R. 715 at 720. The immunity does not extend to matters outside the relevant proceedings, for example to defamatory communications sent to the Bar Council prior to a disciplinary enquiry; see Lincoln v Daniels [1962] 1 Q.B. 237.

    (4) The immunity rule does not apply to proceedings "in respect of malicious abuse of process", whether for malicious prosecution or malicious arrest - see Lord Morris of Borth-y-Gest in Roy v Prior [1971] A.C. 470 at 477 G to 478 A, itself a case of malicious arrest. This is so even though, as Lord Morris pointed out in that same passage:
    "It must often happen that a defendant who is sued for damages for malicious prosecution will have given evidence in the criminal prosecution of which the plaintiff complains."

    As Lord Keith put it in Martin v Watson [1995] 3 WLR 318
    at 328:

    "The essential feature of malicious prosecution is an abuse of the process of the court. If that has occurred it is immaterial that the abuse has involved giving evidence in a court of law."

    (5) The immunity rule is not
    "to be circumvented by alleging a conspiracy between witnesses to make false statements";

    see Lord Morris in Roy v Prior at page 477, approving the Court of Appeal decision to that effect in Marrinan v Vibart. Similarly, in Marrinan v Vibart itself the court noted the repeated attempts over the years one way or another to escape the immunity rule, attempts variously described as "in despair", or "an obvious try-on".

    A recent decision in point is McDonagh and Another v Commissioner of Police of the Metropolis, The Times, 28th December 1989, where Popplewell J refused to permit the plaintiff to add to a malicious prosecution claim an alternative cause of action for misfeasance in a public office, an action which he pointed out would succeed even without proof of absence of reasonable and probable cause.

    (6) The immunity rule should extend only so far as is
    "strictly necessary ... in order to protect those who are to participate in the proceedings from a flank attack";

    per Devlin LJ in Lincoln v Daniels at page 263.

    As Lord Wilberforce put it in Roy v Prior at page 480:

    "Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest."

    Those being the governing legal principles, how does Lord Williams QC seek to escape the immunity rule in the particular circumstances of this case? His argument is essentially this, that there is a real difference - "a qualitative difference" as he calls it - between on the one hand the preparation of false testimony which may include the making of a report or statement -- which is, he acknowledges, barred by the immunity rule -- and on the other hand the fabrication of a false object, perhaps a physical exhibit -- "the fraudulent creation of real evidence", as he calls it -- which he contends is not.

    This case, he submits, involved the creation of a false document, namely seven pages of manuscript notes purporting to be a contemporaneous record of an incriminating interview with the plaintiff, but in fact a forgery, sheer invention from first to last. Such conduct, he argues, is not immune from suit merely because the police officers' own statements and testimony on the issue were prepared for the plaintiff's criminal prosecution. That, he submits, is coincidental, just as the fact that oral evidence may be given by the prosecutor in a malicious prosecution case is incidental.

    He submits that in fabricating evidence against the plaintiff the officers here were not "investigating crime" and thus cannot benefit from the immunity rule. Similarly, he submits, Detective Chief Superintendent Melvin's continuing assertion, during the course of the section 17 enquiry, over four years after trial, that the interview notes were a true record, is a distinct aspect of misfeasance which falls outside the period.

    Mr Seabrook QC for the respondent Commissioner submits that the requirement in the tort of malicious prosecution to prove absence of reasonable and probable cause strikes what has long been recognised as the right balance between the competing public interests here at stake. The distinctions contended for by Lord Williams are, he submits, artificial, distinctions without a difference. That, I have to say, is very clearly how the case strikes me. I can see no "qualitative difference", nor indeed any rational distinction whatever, between the various situations considered in argument for which Lord Williams contends.

    The same policy considerations as underlie the immunity rule in its most direct and obvious application, i.e. where statements have been prepared for proceedings and evidence has then been given, to my mind apply with equal force to the present situation. Protection must extend to the preparation of evidence equally as to its presentation. Similarly, it must extend to encompass any subsequent section 17 enquiry, such as here took place. I see no difference in principle between a police officer fabricating a record of interview in writing, and the equivalent in times past, a police officer verballing an accused; nor between, say, an officer planting a brick or drug on an accused so that someone else will give truthful evidence of having found it, and an officer giving false evidence that he himself found such a brick or drug.

    In my judgment, Drake J was correct in Evans to have held that the immunity covers all conduct that can fairly be said to be part of the investigatory and, I would add, preparatory process. To Lord Williams' submission that there is no public interest in protecting those who create false evidence or, for that matter, those who destroy sound evidence, I would answer that that misses the essential point: the public interest is in the protection of those who might otherwise be falsely accused of such conduct.

    That of course leaves this position:

    (1) that the assumed miscreant is himself open to criminal prosecution whether for perjury or for perverting the course of public justice, precisely the charges which faced the defendant officers in the present case.
    (2) if the miscreant is himself responsible for the prosecution being brought, whether or not himself technically the prosecutor (see on this point Martin v Watson [1995] 3 WLR 318) he is vulnerable to a claim for malicious prosecution.

    I acknowledge that, if the false information provided by the miscreant was not the determining factor in the decision to prosecute, so that he himself cannot be sued for malicious prosecution, then the effect of the immunity rule is to deny the person aggrieved all civil remedy against him. This, however, seems to me altogether less of an anomaly than would arise upon the appellant's argument: namely that, wherever the alleged miscreant is a police officer, an action lies for misfeasance in a public office; and that, wherever there is alleged to be more than one miscreant, a claim can be brought for conspiracy, in each case without the need for the plaintiff to prove the absence of reasonable and probable cause, or indeed for the plaintiff even to have been acquitted of the crime charged against him.

    In my judgment the law upon the point is clear. This action, insofar as it goes beyond a claim for malicious prosecution, is yet another attempt to evade the immunity rule, "an obvious try-on" as Lord Goddard called a comparable earlier attempt.

    All that I have said is in the context of what I had at first understood to be the case, namely that the fabricated interview notes were signed by the plaintiff and exhibited by Detective Chief Superintendent Melvin. We are now told that this was not so. We are further told, indeed, that Detective Chief Superintendent Melvin's evidence went unchallenged, Detective Inspector Dingle not being required by the defence to give corroborative evidence. On the true facts, therefore, the appellant's case becomes yet more unarguable. That however is by the way. Drake J was, I conclude, correct both in his ruling and in the reasons he gave.

    I would dismiss this appeal.


    LORD JUSTICE NEILL: I also agree. I only add a few words of my own to emphasise the width and importance of this immunity. The nature of immunity was clearly stated by Salmon J in Marrinan v Vibart [1963] 1 Q.B. 234 at 237 when he said that the immunity given to a witness or a potential witness is because

    "the administration of justice would be greatly impeded if witnesses were to be in fear that ... persons against whom they gave evidence might subsequently involve them in costly litigation."

    That passage in Salmon J's judgment was quoted by Drake J in his decision in Evans v London Hospital Medical College [1981] 1 All E.R. 715 and [1981] 1 W.L.R. 184, to which my Lord has already referred. Drake J continued as follows at 720 and 191:

    "If this object [that is the immunity] is to be achieved I think it is essential that the immunity given to a witness should also extend to cover statements he makes prior to the issue of a writ or commencement of a prosecution, provided that the statement is made for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered. In a large number of criminal cases the police have collected statements from witnesses before anyone is charged with an offence; indeed sometimes before it is known whether or not any criminal offence has been committed.

    If immunity did not extend to such statements it would mean that the immunity attaching to the giving of evidence in court or the formal statements made in preparation for the court hearing could easily be outflanked and rendered of little use. For the same reason I think that immunity must extend also to the acts of the witness in collecting or considering material on which he may later be called to give evidence. If it does not so extend then a convicted person could, for example, sue the police officers for the allegedly negligent manner in which they investigated the crime, by complaining that they had wrongly assessed the evidential value of certain matters or had failed to interview possible witnesses whose evidence was thought by the accused to be favourable to him."

    For these reasons and for the reasons much more fully explained in the judgment of my Lord, I too would dismiss this appeal.

    Order: appeal dismissed with costs; legal aid taxation of plaintiff's costs; time for service of defence to be extended by 28 days for disposal of any appeal or expiry of time for petition of appeal.

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