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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Gray v Crown Prosecution Service [2010] EWHC 2144 (QB) (20 August 2010) URL: https://www.bailii.org/ew/cases/EWHC/QB/2010/2144.html Cite as: [2010] EWHC 2144 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
BENJAMIN GRAY |
Claimant |
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- and - |
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CROWN PROSECUTION SERVICE (sued as Chief Crown Prosecutor) |
Defendant |
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Miss C McGahey (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 11th August 2010
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Crown Copyright ©
Mr Justice Akenhead:
Introduction
The Background
"As to the charges under the Police Act 1996, the evidence called by the prosecution demonstrated that by the time of the alleged incident grounds for detaining Mr Gray in police detention no longer applied. The investigating officer had, for all practical purposes, abandoned the allegation of harassment for which detention in police detention prior to charge had been authorised. The custody officer had not authorised detention before charge in relation to the allegation under s.5 of the Public Order Act 1986, in respect of which the investigating officer wished to interview Mr Gray. The investigating officer had told the custody officer that he had arrested Mr Grave for a s.5 offence whilst in police detention. It was by this stage that the officer had abandoned the harassment allegation. It appeared to the court that the custody officer did not then carry out his duties under s.37 of PACE in relation to that information; i.e. to consider the available evidence and then either direct that Mr Gray be charged with that alleged offence (and be detained for that to happen) or to authorise his further detention for that alleged offence to be investigated by way of interview under caution. Absent such authority, Mr Gray was no longer lawfully detained in police detention. The evidence called by the prosecution therefore established that Mr Gray was not, as a matter of law, lawfully detained at the time of the alleged incident which gave rise to the charges under the Act. The prosecution conceded that if that was the finding of law in relation to those charges, then neither charge could proceed as the prosecution would not be able to prove that either of the alleged assaulted officers, or any police officer then concerned was acting in the execution of his duty. Since that was the ruling on the law at the conclusion of the prosecution case, the charges were dismissed at that stage. The court made no finding of fact in relation to the incident itself.
As to the charge under s.5 of the Public Order Act 1986, the court found that whereas the conduct was disorderly, the prosecution had not discharged the burden of proof under s.6 (4) of that Act in relation to Mr Gray."
The Proceedings
The findings of DJ Williams [were] made on the same evidence that was available to the prosecutor prior to the decision to press charges and prosecute. Consequently not only were charges laid "without reasonable or probable cause" and therefore provides pre-established grounds for a Malicious Prosecution claim against the Defendant, but moreover, there is the added outrage that the prosecution was brought against someone who was not only falsely imprisoned but also the victim of injuries to his person whilst illegally deprived of his liberty."
He goes on to criticise in Paragraph 12 the Defendants for not responding to a pre-action protocol letter or offer any apology or explanation for their decision, which he says "in itself is proof of malice"; it is said that the lack of formal response demonstrates "complete contempt, not just for my right to liberty and security and fair trial under the HRA, but any notion that they are indeed accountable for their actions." Paragraph 13 asserts, albeit in non-legal language, a claim for malicious prosecution and negligence.
"9. With regard to the first charge [Public Order Act], there was evidence available to the Defendant to the following effect:
a. That, in about late June 2008, the Claimant had been informed in writing that he was banned from entering the…Job Centre for a period of three months.
b. That the said three-month ban had been the result of a series of incidents at the Job Centre in which, into alia, he had intimidated members of staff and had attempted to film inside the premises.
c. That on 27 August 2008 the Claimant had:
(i) entered the Job Centre in breach of the said ban;
(ii) refused to comply with requests to leave; and
(iii) conducted himself in a way that members of staff and members of the public who were present found objectionable and/or intimidating, into alia by raising his voice and by filming and refusing to comply with requests to stop filming despite being told that people who were being filmed objected to the same.
Whilst it is admitted that the Claimant was not convicted on this charge, it is averred that the evidence available to the Defendant amply met the requirements of the existence of reasonable and probable cause for the prosecution.
10. With regard to the second and third charges, there was evidence available to the Defendant that the Claimant had assaulted both PC Carter and PC Lynch at the Trinity Road Police Station at about 8:55 p.m. on 27 August 2008. This evidence amounted to reasonable and probable cause for the prosecution.
11. It is admitted and averred that the second and third charges were dismissed by the District Judge on the basis of a ruling on the law to the effect that the Claimant was being unlawfully detained at the time of the assaults. The Defendant's case is that this ruling does not amount to evidence of an absence of reasonable and probable cause for the Claimant's prosecution on these charges because:
a. The ruling was wrong in law; and
b. In any event, the evidence of the investigating officer (PC Carter) upon which the ruling was founded, i.e. evidence that he had abandoned his investigation of the Claimant in respect of alleged harassment prior to the assaults, was given orally at trial and the said evidence was not apparent to the Defendant or his offices on the material available to them prior to trial."
Mr Gray's Application
"(1) Where-
(a) a person is arrested for an offence-
(i) without a warrant; or
(ii) under a warrant not endorse the bail,
the custody officer at each police station where he is detained after his arrest shall determine whether he has before him sufficient evidence to charge the person with the offence for which he was arrested and may detain him at the police station in such period as is necessary to enable him to do so."
The whole tenor of Section 37 it is that it is the "custody officer" who makes the requisite decisions and not the investigating officer. If that is the case, then the fact, if true, that the investigating officer had decided in his own mind, without telling anyone else, to abandon the basis upon which the accused was originally arrested and charge him with another offence is not material to the exercise which the custody officer has to do. In the absence of any evidence that the custody officer was aware of the change of mind, it could well be difficult to argue that Mr Gray was unlawfully detained from the moment that PC Carter had changed his mind.
"(1) In his defence, the defendant must state-
(a) which of the allegations in the particulars of claim he denies;
(b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and
(c) which allegations he admits.
(2) Where the defendant denies the allegation-(a) he must state his reasons for doing so; and(b) if he intends to put forward a different version of events from
that given by the claimant, he must state his own version.
(3) A defendant who-
(a) fails to deal with an allegation; but
(b) sets out in his defence the nature of his case in relation to the issue to which the allegation is relevant; shall be taken to require that allegation to be proved…
(5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation."
The Defendant's Application
"While Mr Richards, who appeared for the CPS, disputed that even the element of foreseeability of harm is established, I would be prepared to accept that the plaintiffs can satisfy this requirement. For my part the matter turns on a combination of the element of proximity and the question whether it is fair, just and reasonable that the law should impose a duty of care. It does not seem to me that these considerations can sensibly be considered separately in this case: inevitably they shade into each other.
Recognizing that individualized justice to private individuals, or trading companies, who are aggrieved by careless decisions of CPS lawyers, militate in favour of the recognition of a duty of care, I conclude that there are compelling considerations, rooted in the welfare of the whole community, which outweigh the dictates of individualized justice. I would rule that there is no duty of care owed by the CPS to those it prosecutes. In so ruling I have considered whether a distinction between operational and discretionary lapses, with potential liability in the former but not the latter, should be made. Whatever the merit of such a distinction in other areas of the law, I would reject it in regard to the CPS as impractical, unworkable and not capable of avoiding the adverse consequences for the CPS on which I have rested my decision. Subject to one qualification, my conclusion that there is no duty of care owed by the CPS to those it prosecutes is intended to be of general application. The qualification is that there may be cases, of which Welsh was an example, where the CPS assumes by conduct a responsibility to a particular defendant: see Spring v. Guardian Assurance PLC [1994] 3 WLR 354, per Lord Goff of Chieveley, at 368A-369A. And it is trite law that such an assumption of responsibility may generate legal duties. But that qualification has no relevance to the cases before us.
I have rested my judgment on the absence of a duty of care on the part of the CPS. If my conclusion is wrong, I would for the reasons I have given in dealing with the question whether a duty of care exists rule that the CPS is immune from liability in negligence.
Initially, I was concerned that such an important decision should be taken in the context of the constraints of a striking out application. Given that the parallel case of Hill was decided by the House of Lords on a striking out application, and that one is dealing with a pure question of law, I was ultimately satisfied that it is such a plain and obvious case that it was right to strike out the statements of claim in both cases." (per Lord Justice Steyn)
This judgement was agreed by Lord Justice Rose and Lord Justice Millett gave a strong supporting judgement. There is in any event no good policy reason why there should be no duty of care; if Mr Gray was right and there was generally a duty of care on the prosecuting authorities towards all people who were prosecuted, there would be a potential claim against those authorities every time a person was acquitted of a criminal charge or otherwise had the charges dismissed or withdrawn. If there was such a duty of care, the prosecuting authorities would be acting under a major constraint and there would be a real risk that people who should be prosecuted would not be.
(a) The burden of proof will always be on the Claimant, Mr Gray, to show that the Defendant lacked reasonable and probable cause and acted maliciously.
(b) From the evidence submitted, and from the lack of evidence and particulars provided by Mr Gray, there is no evidence of malice on the part of the Defendant between August 2008 and May 2009. It matters not on this issue how well or badly the Defendant behaved thereafter because the prosecution was over. I certainly have seen nothing in any event which suggests that it acted maliciously thereafter.
(c) There is the Defendant's evidence (which is not challenged by any evidence as such from Mr Gray) to the effect that there was always sufficient evidence to justify prosecution on the two assault charges. That does not mean of course that Mr Gray did not have an arguable defence or that he was necessarily guilty. He would always have been in a position if he had had to give evidence to point to what he says happened that evening.
(d) For reasons given above, I do not see how the Defendant can be criticised for failing to anticipate an argument apparently raised by the District Judge in relation to Section 37 of PACE. Even if the Defendant had anticipated it, for the reasons advanced by its Counsel before the District Judge, it was eminently arguable that, at the time the alleged assaults occurred, Mr Gray was in lawful custody still in relation to the harassment charge for which he had been arrested.
(e) There is no realistic prospect of establishing that in some way the Defendant or individuals within the Defendant should have appreciated that PC Carter would give evidence as he eventually did to the effect that, when he went into Mr Gray's cell to charge him with the Public Order offence, he had "decided" that Mr Gray should not be charged with the harassment offence. There would be no obvious reason why they should have appreciated this. PC Carter's written evidence, which is actually accepted by Mr Gray, was to the effect that he told Mr Gray that there would be a "further" charge; in context that must have been "further" to the harassment charge for which Mr Gray had been arrested. The fact that at some stage later in the evening Mr Gray was formally charged with the three offences and not with a harassment offence does not and would not obviously lead prosecutors to an enquiry which would have led to a conclusion that at the time of the two alleged assaults Mr Gray was unlawfully in custody.
Conclusion and Decision