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England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Elguzouli-Daf v The Commissioner of Police of the Metropolis & Anor [1994] EWCA Civ 4 (16 November 1994)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1994/4.html
Cite as: [1995] QB 335, [1995] 1 All ER 833, [1994] EWCA Civ 4

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JISCBAILII_CASE_TORT

BAILII Citation Number: [1994] EWCA Civ 4
QBENI 94/0152/E

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
(MR PATRICK BENNETT QC (DEPUTY JUDGE)

Royal Courts of Justice
Strand
London WC2A 2LL
16 November 1994

B e f o r e :

LORD JUSTICE STEYN
LORD JUSTICE ROSE
LORD JUSTICE MORRITT

____________________

OSAMA ELGUZOULI DAF
Appellant
-v-
THE COMMISSIONER OF POLICE OF THE METROPOLIS
THE CROWN PROSECUTION SERVICE
Respondents
QBENI 94/0152/E
DANIEL MCBREARTY Appellant
-v-
MINISTRY OF DEFENCE
CROWN PROSECUTION SERVICE
COMMISSIONER OF POLICE FOR THE METROPOLIS
Respondents

____________________

Computer Aided Transcription by John Larking
Chancery House, Chancery Lane, London, WC2
Telephone No. 071-494 7464
Official Shorthand Writers to the Court

____________________

MR M SUPPERSTONE QC and MR D JANNER (Instructed by Stephen Fidler & Co., London, WC1X 8TX) appeared on behalf of the Appellants/Osama Elguzouli-Daf.
MR N BLAKE QC (Instructed by B M Birnberg & Co. London, NW1 7HJ) appeared on behalf of the Appellant/ McBrearty.
MR S RICHARDS and MR I BURNETT (Instructed by the Treasury Solicitor, Metropolitan Police Legal Dept and CPS) appeared on behalf of the Respondents.

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    LORD JUSTICE STEYN: These appeals raise the question of law whether the Crown Prosecution Service ("the CPS") owes a duty of care to those it is prosecuting. We are asked to consider this question in the context of an order made on 8 October 1993 by Mr P. Bennett Q.C., a Deputy High Court Judge, striking out statements of claim in two actions brought by plaintiffs against the CPS. In both actions the plaintiffs alleged that the CPS caused a prolongation of their detention by negligence. The judge ruled that under Order 18, rule 19(1)(a) there was no sustainable cause of action in either case against the CPS.

    The action brought by Mr McBrearty

    On 22 September 1989 a bomb planted by the I.R.A. exploded at the Barracks of the Royal Marine Band at Deal, killing eleven people. On 17 September Mr McBrearty, a 35 year old man from Northern Ireland, had travelled to London. On 5 October 1989 he was arrested by police officers. On the same day swabs were taken from his hands. The swabs were sent for forensic analysis. On 8 October 1989 a forensic scientist claimed to have discovered traces of an explosive residue in the swabs. The police were informed of this finding. In police interviews Mr McBrearty said that, if explosive residues were found on the swabs taken from his hands, such residues must have been present through innocent contamination. On 12 October 1989 the police charged Mr McBrearty with an offence contrary to the Explosive Substances Act 1883, the thrust of the charge being that Mr McBrearty had handled semtex explosives. On 12 October the CPS undertook the prosecution of Mr McBrearty. On 20 December 1989 a judge refused him bail. On 8 January 1990, the CPS offered no evidence against Mr McBrearty at the committal proceedings, giving as the reason for that decision that the possibility of innocent contamination could not be excluded. Pursuant to section 6 of the Magistrates Court Act 1980 he was discharged by the magistrates. In the result he was detained for 85 days before the prosecution was abandoned.

    Mr McBrearty sued the Ministry of Defence, the CPS and the Commissioner of Police for the Metropolis. The claim against the Ministry of Defence was struck out. There is no appeal against this ruling. The claim against the Police was withdrawn. Only the sustainability of Mr McBrearty's claim against the CPS was in issue before the judge and before us.

    The statement of claim, so far as it is relevant to the case against the CPS, alleged breach of a duty of care, having regard to advice "that ought to have been given as to whether any prosecution should be continued". The particulars of negligence against the CPS were as follows:

    "i)failing to clarify from the scientists employed by the First Defendant on or before 12 October 1989 or so soon thereafter as was reasonably practical that the findings of explosive traces on hand swabs taken from the Plaintiff were not inconsistent with innocent contamination;
    ii)failing to advise the Plaintiff or the court between 12 October and 8 January 1990 that the explosives evidence against the Plaintiff was consistent with innocent contamination.

    iii)failing to discontinue the prosecution on the grounds of insufficiency of evidence on the 12 October 1989 or so soon as practical thereafter."

    The gravamen of Mr McBrearty's case in negligence against the CPS is that it was always apparent that innocent contamination could not be excluded. In these circumstances, he says, it should not have taken 85 days to realize that the prosecution was bound to fail. He alleges that he suffered loss and damage in that he suffered anxiety and distress as a result of such detention. At the hearing at first instance an alternative claim by MrMcBrearty for malicious prosecution against the CPS was withdrawn.

    The action brought by Mr Elguzouli - Daf.

    In the early hours of 30 September 1992 Linda Butler was raped. At 2.45 a.m. on 30 September Mr Elguzouli-Daf, a 30 year old man, was arrested in connection with the attack on the victim. He was detained. At 11.36 p.m. on the same day the police charged him with two offences, namely rape and buggery of Linda Butler. Eventually, forensic examination established that semen found on a swab taken from the victim's vagina belonged to two men, neither of whom was Mr Elguzouli-Daf. On 21 October 1992 the CPS notified him that the charges were discontinued under section 23 of the Prosecution of Offences Act 1985. In the result he spent 22 days in custody before the CPS abandoned the prosecution.

    Mr Elguzouli-Daf sued the police and the CPS. The police did not apply to strike out that part of the statement of claim which related to the case against the police. At first instance, and before us, only the sustainability of the case against the CPS was in issue.

    Mr Elguzouli-Daf's claim against the CPS is brought in negligence. The general allegation against the CPS in his amended statement of claim was as follows:

    "The Second Defendant owed the Plaintiff a duty of care in performing and communication of an opinion that might lead to a Prosecution, and in any advice given or that ought to have been given as to whether any prosecution should be continued by reason of matters set out below the Second Defendant was in breach of the said duty."

    The particulars of negligence read as follows:

    "(a)Failing to clarify from forensic scientists on 30 September 1992 or so soon thereafter as was reasonably practicable and in any event not as late as the 21st October 1992, that a swab taken from Miss Butler's vagina revealed that semen from two males present, neither of whom were the Plaintiff's........

    (b)Failing to advise the Plaintiff or the Court between the 1st October and 21 October 1992 that the forensic evidence proved negative against the Plaintiff.
    (c)Failing to discontinue the proceedings before the 21st October 1992 when the result of the said forensic test should and could have been known to the Second Defendant."

    Notwithstanding paragraph (b), it was not argued that the CPS had the forensic test result, which conclusively exculpated Mr Elguzouli-Daf, before 21 October. Helpfully, Mr Supperstone, Q.C., who appeared for Mr Elguzouli-Daf, explained that the essence of the claim is "that the CPS behaved negligently in acting without reasonable diligence in obtaining and/or processing and/or communicating the results of the tests".

    The proceedings at first instance:

    The CPS took out summonses to strike out the statements of claim in both actions so far as they asserted claims in negligence against the CPS. It was common ground that the actions gave rise to a single question of law, namely whether the CPS owes a duty of care to those it is prosecuting. In a robust judgment the Deputy High Court Judge held that no such duty exists. He said:

    "I deal with the matter first of all by way of principle. It seems to me that the consequences of holding that such a duty exists would give rise to a wholly undesirable situation. First, it would spawn a plethora of litigation funded from an already strained public purse. It requires little stretch of imagination to envisage what would happen if such a duty of care was imposed. Secondly, it would involve time-consuming, expensive and lengthy investigation of each and every act of the prosecution.......Thirdly, in my view, such a duty could form an undesirable fetter on the free exercise of their judgment by those concerned with the prosecution process, whether by advice or action: "the looking over one's shoulder syndrome". Fourthly, there already exist remedies available which hithertofore have provided adequate protection for the public. There have been the availability of the tort of malicious prosecution which has stood the test of time, and more recently a remedy in damages in respect of the unsatisfactory conduct of representatives in criminal proceedings: see section 111 of the Courts and Legal services Act 1990."

    Here I pause to observe that the wasted costs procedure under section 19A of the Prosecution of Offences Act 1985, as amended by section 111 of the Courts and Legal Services Act 1990, is demonstrably not "a remedy in damages".

    The judge than turned to the effect of the decided cases. He declined to follow a first instance decision of Tudor Evans J in Welsh v. The Chief Constable of Merseyside Police [1993] 1 AER 692. He said that the case was wrongly decided. For the rest the judge contented himself by annexing to his judgment four skeleton arguments. And he adopted and repeated as part of his judgment the skeleton argument filed on behalf of the CPS and the Ministry of Defence. That was a curious course to adopt. For my part I see no need to discuss the skeleton argument lodged by counsel for the CPS at first instance despite its incorporation into a judgment. Instead I will attempt to analyze the issues and arguments placed before us.

    The general approach

    Leaving aside the first instance decision in Welsh, to which I will turn in due course, the question before us is a novel one.

    The authority of a series of decisions in the House of Lords, and notably Caparo Industries PLC v. Dickman [1990] 2 AC 606, require us to consider the critical question not from the point of view of high principle but pragmatically and by analogy with established categories of liability. And in so approaching the question we must consider the ultimate question from three perspectives, namely (a) the foreseeability of the harm that ensues; (b) the nature of the relationship between the parties, usually called the element of proximity; and (c) the question whether it is fair, just and reasonable that the law should impose a duty of care.

    The impact of the CPS role:

    The defendant is neither an individual nor a trading company. It is a public law enforcement agency. The Crown Prosecution Service was established by the Prosecution of Offences Act 1985. The philosophy of that measure was to separate the functions of the investigation of crime, that being the responsibility of the police, and the prosecution of offences, that being the responsibility of a single national prosecution service. The CPS is an autonomous and independent agency. It reviews police decisions to prosecute. It conducts prosecutions on behalf of the Crown. The Attorney-General in his non-political role as a Law Officer of the Crown appoints, and superintends the Director of Public Prosecutions ("the DPP"): sections 2(1) and 3(1) of the 1985 Act. The Attorney-General, and through him the Director of Public Prosecutions, are accountable to Parliament for what they do, or omit to do, in relation to criminal proceedings: see Mansfield and Peay, The Director of Public Prosecutions, Principles and Practices for the Crown Prosecutor, 1987, at 233-234.

    The general approach enunciated in the House of Lords cases such as Caparo must take into account the public nature of the functions of the CPS. The CPS acts for the public as a whole. It acts in the public interest. In applying the twofold test whether there is a sufficiency of evidence to warrant a prosecution, and whether the prosecution is in the public interest, the prosecutor has a role independent of the interests of the government of the day. It is a matter for examination whether this public role requires the CPS to be treated differently in the law of tort from private citizens and corporations.

    The backcloth of other protections and remedies:

    The need for, or desirability, of a duty of care owed by the CPS to those it is prosecuting must be considered in the context of other protections and remedies offered by the principles on which our democracy is founded. First, by convention the Attorney-General is answerable to Parliament for general prosecution policy and for specific cases where the Attorney-General or the D.P.P. intervenes. The sanction is an adverse vote in Parliament on the conduct of the Attorney-General, which could make his position untenable. But, in the nature of things, Parliament can usually only call the Attorney-General to account after a prosecution has run its course. And Parliament will not give directions to the Attorney-General. That is cold comfort for a citizen who suffered as a result of maladministration. On the other hand, the Attorney-General's accountability to Parliament is a brake on maladministration. Secondly, there is the possibility of judicial review of decisions by the CPS. Given the nature of prosecution process, it is, however, right to say that the scope for such judicial review proceedings is very limited indeed: Wiseman v. Borneman [1971] AC 297, at 308; Nicol v. Attorney-General of Victoria [1982] VR 353; Dickens (1972) 34 MLR 347. Turning to private law remedies there is first of all the tort of malicious prosecution. In order to succeed in such an action the plaintiff must prove that the prosecution failed; that there was no reasonable or probable cause for the prosecution; and that the defendant was actuated by malice. It is also necessary to consider the tort of misfeasance in public office. The essence of the tort is the abuse of public office. Potentially such liability might attach to a decision of a CPS prosecutor. But, as the law stands, the plaintiff has to establish either that the holder of the public office maliciously acted to the plaintiff's detriment or that he acted knowing that he did not possess the relevant power. That is the effect of the decision of the Court of Appeal in Bourgoin S.A. v. Ministry of Agriculture, Fisheries and Food [1986] 1 QB 716. In this corner of the law our legal system possibly has a capacity for further development, notably under the direct or indirect influence of the jurisprudence of the European Court of Justice. See Francovich v. Italian Republic [1993] 2 CMLR 66 and Kirklees MBC v. Wickes Building Supplies Ltd [1993] AC 227, per Lord Goff of Chieveley at 281C-282B. But, it would be wrong to say more in this case about this complex area of the law. By way of summary, one can say that as the law stands a citizen, who is aggrieved by a prosecutor's decision, has in our system potentially extensive private law remedies for a deliberate abuse of power. That still leaves open the question whether the CPS should also be held to owe a common law duty of care to those it is engaged in prosecuting.

    The police immunity:

    The analogy of Hill v. Chief Constable of West Yorkshire [1989] AC 53, is instructive. The issue was whether a claim against the police for negligent failure to apprehend a violent criminal was sustainable. The claim failed at all levels of the judicial hierarchy. The House of Lords held that there was no general duty of care owed by the police to individual members of the public to identify and apprehend a criminal. But the House of Lords further held, as a second and separate ground of decision, that as a matter of public policy the police were immune from actions for negligence in respect of their activities in the investigation and suppression of crime. Lord Keith of Kintel observed (at 75D-75H):

    "In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded......A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted."

    Putting the decision in Hill in perspective I would only add that it does not follow that the police may not be held liable in a case where there is some form of assumption of responsibility by the police. But for present purposes the significance of Hill is that, while the prime function of the police is the investigation of crime, the CPS as part and parcel of its prosecuting function need to investigate and prepare cases. Indeed the complaints in the present cases assert negligence by the CPS in preparing the prosecution cases. The reasoning in Hill militates by way of analogy against recognizing a duty of care in the case of the CPS. Indeed in some ways it could be said that the argument against a duty of care, and for immunity, is even stronger in the present case since much of police work is operational whereas the function of the CPS involves to a large extent matters of judgment and discretion.

    Lawyers' duties to the opposing party

    It must be remembered that a distinctive feature of this case is that the plaintiffs seek to impose liability on the CPS for the negligence of CPS lawyers in failing to protect the interests of the person that they were engaged in prosecuting. In the absence of a specific assumption of responsibility lawyers engaged in hostile civil litigation are not liable in negligence to the opposing party: Al Kandary v. J R Brown & Co (a firm) [1988] QB 665; Business Computers International Ltd v. Registrar of Companies [1988] Ch 229. But I do not wish to take this analogy too far since a prosecutor in criminal proceedings is also a minister of justice. Nevertheless the reality is that a defendant in criminal proceedings must rely on the magistrates or the judge, and his own lawyers, to protect his interests. No doubt there is a public law duty on prosecutors to treat him fairly. But it does not follow that he should have a private law remedy in damages for the negligence of lawyers engaged by the CPS to prosecute him for and on behalf of the whole community.

    The balance of arguments for and against a duty of care There are countervailing arguments. Mr Blake Q.C., for Mr McBrearty, and Mr Supperstone Q.C., for Mr Elguzouli-Daf, argued that the three pronged test outlined in Caparo is satisfied. In particular they emphasized the injustice of depriving a defendant of a remedy where he was deprived of his liberty for a long period due to the carelessness of a CPS lawyer. They also sought assistance in the careful reserved judgment of Tudor Evans J in Welsh v. Chief Constable of the Merseyside Police [1993] 1 All ER 693. In that case the judge held in the context of a striking out application under Order 18, rule 19(1)(a), that it was arguable that the CPS owed a duty of care to a defendant to inform the magistrates court that certain offences had already been taken into court by the Crown Court. The CPS had failed to do so. That had resulted in the plaintiff's re-arrest and detention. Any judgment of Tudor Evans J in such a case requires the most careful consideration by us. But Welsh must be put in perspective. The judge approached the matter on the basis that the CPS assumed by conduct a responsibility to keep the magistrates court informed as to the fact that the offences had been taken into consideration. The judge repeatedly emphasized this feature of the case. By contrast the cases before us do not involve any suggestion of an assumption of responsibility by the CPS. Ultimately, it seems to me that the decision in Welsh is not of assistance on the central point before us. Contrary to the views of the Deputy High Court Judge in the case before us I do not regard Welsh as wrongly decided. But it turned on its own special facts, and in particular on the issue of assumption of responsibility by the CPS.

    That brings me to the policy factors which in my view argue against the recognition of a duty of care owed by the CPS to those it prosecutes. While it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the CPS. In my view such a duty of care would tend to have an inhibiting effect on the discharge by the CPS of its central function of prosecuting crime. It would in some cases lead to a defensive approach by prosecutors to their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence. The CPS would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against the CPS. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of CPS lawyers would be diverted from concentrating on their prime function of prosecuting offenders. That would be likely to happen not only during the prosecution process but also when the CPS is sued in negligence by aggrieved defendants. The CPS would be constantly enmeshed in an avalanche of interlocutory civil proceedings and civil trials. That is a spectre that would bode ill for the efficiency of the CPS and the quality of our criminal justice system.

    Conclusion

    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.

    Finally, if I had answered the substantive question in favour of the appellants, I would have wanted to hear argument on the question whether the CPS is in law vicariously liable for the acts of the CPS prosecutors. Having regard to the duties imposed on prosecutors by statute and common law, the CPS might not have been so liable. See Field v. Nott 62 C.L.R. 660, per Dixon J, at 675. In the result this question falls away.

    I would dismiss both appeals.

    LORD JUSTICE ROSE: I agree.

    LORD JUSTICE MORRITT: These two appeals raise important issues as to the potential liability of the Crown Prosecution Service to those whom it decides to prosecute. The facts of each case are set out in the judgment of Steyn LJ. I gratefully adopt his summary.

    The issue as posed by Mr Blake QC for Mr McBrearty is whether the CPS is liable in damages for negligently prolonging his client's detention. This formulation was accepted by Mr Supperstone QC for Mr Elguzouli-Daf; but, in addition, he also contended that the CPS owed a duty of care to any suspect whether in custody or on bail its relevant officer was considering prosecuting, or had charged, tempered in some circumstances by an immunity based on public policy.

    It is not disputed that the starting point for an inquiry of this sort must now be the principles expressed by Lord Bridge of Harwich in Caparo v Dickman (1990) 2 AC 605 at pages 617\8 namely the foreseeability of damage, a relationship of proximity and a situation in which it is fair, just and reasonable that the law should impose a duty of a given scope upon one party for the benefit of the other. Like my Lords I assume in favour of the appellants that they suffered damage of the type relevant to a claim in negligence, that such damage was caused by carelessness as alleged for which the CPS is responsible and that the damage was the foreseeable consequence of that carelessness.

    CPS was created by Prosecution of Offences Act 1985. It is not a body corporate but a collection of individuals with statutory functions to perform. At the head is the Director of Public Prosecutions. Below but answerable to the Director are the Chief Crown Prosecutors. The third category is the staff appointed by the Director. s1(1),(6). The Director is appointed by and under the superintendence of the Attorney-General. ss.2(1) and 3(1). The duties of the Director are set out in s.3(2) and include the duty

    "(b) to institute and have the conduct of criminal proceedings in any case where it appears to him that (i) the importance or difficulty of the case makes it appropriate that proceedings should be instituted by him; or (ii) it is otherwise appropriate for proceedings to be instituted by him"

    By s.1(6) every crown prosecutor has all the powers of the Director as to the institution and conduct of proceedings but must exercise those powers under the direction of the Director.

    By section 10 the Director is required to

    "issue a Code for Crown Prosecutors giving guidance on general principles to be applied by them
    (a) in determining in any case
    (i) whether proceedings for an offence should be instituted or where proceedings have been instituted whether they should be discontinued; or
    (ii) what charges should be preferred; and
    (b) in considering in any case representations to be made by them to any magistrates court about the mode of trial suitable for that case."

    The code includes a paragraph, para 4, dealing with the sufficiency of evidence to start or maintain a prosecution. It points out the importance of admissible, substantial and reliable evidence that a criminal offence has been committed by an identifiable person and the possible defences which might affect the likelihood or otherwise of a conviction.

    Thus although the CPS is the authorised department for the purposes of bringing proceedings against the Crown under s.17(3) Crown Proceedings Act 1947 the relevant statutory duties are cast on the Director and, through the Director, the Crown Prosecutors and the staff of the Service. In this case neither Plaintiff alleges that there is a breach of any such statutory duty actionable by him whether because of direct and substantial damage sustained by him or otherwise. In these circumstances "it would be strange that a common law duty of care should be superimposed upon such a statutory framework". see per Lord Keith of Kinkel in Yuen Kun Yeu v A-G of Hong Kong (1988) 1 AC 175 at page 195.

    I do not think that the imposition of either of the duties contended for is required by the relationship between the CPS and the plaintiffs or that it would be fair just and reasonable for the law to do so. There are a number of reasons why I reach that conclusion. None of them may be sufficient in itself but the overall combination is in my judgment compelling.

    First there is the analogy with civil litigation. One party to a civil action does not owe a duty of care to the other, nor does his solicitor. Business Computers International Ltd v Registrar of Companies (1988) Ch.229. Al Kandari v Brown (1988) QB 665. The reason is obvious; the duty to the other side might conflict with the duty to his own client. The analogy is not precise because criminal proceedings and the role of the prosecutor are different from civil proceedings and the role of a plaintiff in them. But the respects in which the roles differ appear to me to suggest that the prosecutor is an a fortiori case. Some of his duties and in particular where they differ from those of a plaintiff are equated with those of a minister of justice. In that respect a liability in negligence would be even more inapposite than in the case of the opposing party or his solicitor in civil litigation.

    Second, not only would it be surprising to find a common law duty in the circumstance that the CPS is a recent creature of statute but under no statutory duty to individuals but it would suggest that in this field at least the independent torts of malicious prosecution and misfeasance in a public office are unnecessary. In the case of the former a plaintiff has to establish the absence of reasonable and probable cause and malice. In the case of the latter knowledge of the want of power is an essential element. If the plaintiffs are right want of reasonable care will suffice. To conclude that the duties for which the plaintiffs contend do exist would be to disregard the danger to which Lord Templeman referred in Downshire Nominees v First City Corporation (1993) AC 295,316 namely

    "of extending the ambit of negligence so as to supplant or supplement other torts, contractual obligations, statutory duties or equitable rules in relation to every kind of damage including economic loss".

    I do not understand that warning to have lost its relevance by virtue of the decision of the House of Lords in Spring v Guardian Assurance PLC (1994) 3 WLR 354.

    Third I do not think that it is possible to restrict the ambit of the duty in the way for which Mr Blake contended. The prolongation of Mr McBrearty's detention is the consequence of the carelessness which I have assumed. But any duty would have to be expressed in much wider terms by reference to the functions of the CPS. Thus it would have to equate to the wider duty for which Mr Supperstone argued namely a duty to use reasonable care in the institution and conduct of criminal proceedings. It seems to me that policy considerations similar to those which weighed with Lord Keith of Kinkel in the context of the police in Hill v Chief Constable of West Yorkshire (1989) 1 AC 53, 63 would be as applicable in this field to exclude a general duty of care.

    In deciding as I do that the judge was right and these appeals should be dismissed I do not wish to be thought to be casting doubt on the decision of Tudor Evans J in Welsh v Chief Constable of Merseyside (1993) 1 AER 692 in so far as that decision was grounded on the assumed fact that there had been a voluntary assumption of responsibility. As such liability would rest on the well established principles of Hedley Byrne v Heller and would be irrelevant to the issues before the court on these appeals.

    For all these and the further reasons given by Steyn LJ with which I agree I would dismiss these appeals.

    Crown Copyright


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