Judgments - Darker (Personal Representative of David Stanley Docker (Deceased) and Others (A.P.) (Formerly Head and Others (A.P.)) v. Chief Constable of The West Midlands Police

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    There is nothing new in allegations against the police of pre-trial misconduct. A common type of allegation, familiar to any judge who has had to preside frequently over criminal trials, has been of some impropriety in the obtaining of statements from an accused person. Very often these allegations are found to be false. Usually police officers confronted with such allegations in the witness box face them philosophically and firmly. They are part of the policeman's lot, a well-recognised professional hazard. I think that it would be unrealistic to suppose that the risk of such false allegations has over the years operated as a significant disincentive to the conscientious discharge of police investigatory duties. It would seem equally unrealistic to suggest that this has been due to an understanding that pre-trial investigations were immune from tort claims. Not until Silcott in 1996 had an English court articulated the law in that way. In my opinion it certainly cannot be said that protection has proved to be absolutely necessary in the interests of the administration of justice.

    A police officer who gives evidence or a proof of proposed evidence is entitled to the same immunity as any other witness or potential witness. And to prevent the evasion of this immunity it is necessary to rule out also allegations of conspiracy to give false evidence, as was held in Marrinan v. Vibart [1963] 1 Q.B. 528. There may be some borderline cases where it is not easy to draw the line as to the precise extent of witness immunity. The solution of these cases may be helped to some extent by bearing in mind that witness immunity is a general doctrine applying to all persons called upon to give evidence, whereas the function of official investigation is limited to the police and various other public officials. Conduct which is primarily and naturally to be seen as belonging to the investigatory function, even though it may have some ultimate link with the giving of evidence, should not be within the general protection.

    Many of the authorities cited in argument were concerned to uphold absolute privilege in defamation or the absence of a duty of care in negligence. It would be unsafe to convert what has been said about immunity in such cases to use in respect of the kind of conduct alleged in the present case. Thus Evans v. London Hospital Medical College did not require any consideration of the planting of evidence; it was simply a case of the bona fide but allegedly negligent preparation of evidence. Drake J.'s proposition was entirely apt for such a case, but to give it some wider influence could be dangerous. It is noteworthy that in Taylor v. Serious Fraud Office [1999] 2 A.C. 177, 215, Lord Hoffmann thought that Evans might nowadays have been decided on the ground that the defendants owed the plaintiff no duty of care. That is how Evans happens to have been seen in New Zealand: South Pacific Manufacturing Co. Ltd. v. New Zealand Security Consultants and Investigations Ltd. [1992] L.R.C. (Comm.) 91, 115.

    Taylor's case itself was a defamation action in which the defendants were held (by a majority in your Lordships' House) entitled to absolute privilege. To cite Lord Hoffmann again (at pages 214-215): "In my view it is necessary for the administration of justice that investigators should be able to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued if such statements are disclosed in the course of the proceedings." All the speeches dealt with the subject in similar terms. The fabrication of evidence was never mentioned. It is well understandable that the freedom of police investigators to communicate inter se and with others should be inviolate. The planting of evidence, such as the brick or drug postulated in Silcott, takes one from the field of freedom of speech into different territory. I do not think that Taylor can have been intended to be a guide in that territory. Each category of immunity requires separate consideration and justification, while each set of facts requires full examination in determining whether it can be brought within a particular category.

    Your Lordships have had the advantage, not enjoyed by the Court of Appeal in this case nor evidently in Silcott, of citations of American jurisprudence. Not surprisingly in this difficult field, there have been line-drawing differences; but there appears to have been general agreement on a functional test. A convenient starting point is Imbler v. Pachtman 424 U.S. 409 (1976) where the United Sates Supreme Court held by a majority that a state prosecutor who acted within the scope of his duties in initiating and pursuing a criminal prosecution and in presenting the state's case was absolutely immune from a civil suit for damages for alleged deprivations of the defendant's constitutional rights; and that the absolute immunity was applicable even where the prosecutor knowingly used perjured testimony, deliberately withheld exculpatory information, or failed to make full disclosure of all facts casting doubt on the state's testimony. It was said that these activities were intimately associated with the judicial phase of the criminal process, as distinct from the administrative or investigatory role.

    A case on the other side of the line, where a majority of the Supreme Court denied absolute immunity, was Buckley v. Fitzsimmons 113 S.Ct. 2606 (1993). 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 therefore entitled only to qualified immunity - approximating to the position in English law of a defendant in an action for misfeasance in public office: see Three Rivers District Council v. Bank of England [2000] 3 All E.R. 1. The misconduct alleged in Buckley v. Fitzsimmons was described as fabricating evidence. It was claimed that, when three separate laboratory studies failed to make a reliable connection between the bootprint and the suspect's boots, the respondents obtained a positive identification from a person known for her willingness to fabricate unreliable expert testimony.

    A similar very recent case is Spurlock v. Satterfield 167 F.3d 995 (United States Court of Appeals, Sixth Circuit, 1999). The defendants were a deputy sheriff and other law enforcement officials. The court said at page 1004:

    "Plaintiffs do not allege that Satterfield and others merely presented false testimony. Indeed, they allege that something much more egregious was at work here. Specifically, that not only did Satterfield and other defendants know that Apple's testimony was false, but that they provided Apple with information regarding the Malone murder, fabricated probable cause, created a second tape recording to conceal the events of the first recording, gave Apple 'hush money' after plaintiffs' first trials, and recorded and re-recorded Apple's statements. We find it incredible that Satterfield now contends that these non-testimonial acts fall within the ambit of the aforementioned absolute testimonial immunity caselaw. Considering the facts as alleged by plaintiffs, we decline to broaden the scope of absolute testimonial immunity to encompass the non-testimonial acts alleged here."

    The American cases appear to me to provide support for the kind of functional approach which I have outlined earlier. Some support may be gained also, I think, from Osman v. United Kingdom (1998) 29 E.H.R.R. 245. This decision of the European Court of Human Rights seems to be somewhat controversial in England, and its facts are remote from those of the present case. It has some relevance, nevertheless in its rejection of blanket immunities for the police. The United Kingdom courts can undoubtedly take it into account in developing the common law in grey areas; and this will be obligatory when the Human Rights Act 1998 is brought into full force.

    The respondent seeks to repel any suggestion of blanket immunity by stressing that a claimant who has been a victim of unsuccessful criminal proceedings may be able to sue for malicious prosecution if he can prove an absence of reasonable and probable cause for the prosecution. This argument appears to prove too much. Public policy does not altogether shut out such actions in the interest of protecting honest police prosecutors from the vexation of unfounded claims. The cumulative ingredients of the tort place a series of hurdles in the plaintiffs' way, but pre-trial investigatory work is not sacrosanct. Moreover, although on the moral scale framing a guilty person may be less heinous than framing an innocent one, in both cases the conduct is totally unacceptable. I would not accept that it is a sound rule of public policy to prevent scrutiny of the investigation by a civil action in a case which may fall within one of the two classes while allowing it in a case which may fall within the other.

    For these reasons I would allow the appeal and make the order proposed by Lord Hutton.

LORD CLYDE

My Lords,

    In 1993 the appellants faced trial in criminal proceedings. On 28 September 1993 the trial was stayed for an abuse of process. They have claimed damages from the police for conspiracy to injure and the tort of misfeasance in public office. But the claim has been struck out. The issue in the present case is a narrow one: whether an absolute immunity necessarily attaches to police officers who among other things, as is alleged, along with an informer fabricated statements against the appellants and themselves conspired to cause them to be charged with offences which they knew or believed to be false. The immunity claimed is that which is associated with witnesses in judicial proceedings. Immunity has in the past been recognised in respect of the judge, the jurors, the advocates, the witnesses and the parties themselves, at least within the confines of the court proceedings. But since it may be that distinct considerations may apply to some or all of the other four groups it is proper to restrict the present discussion to the immunity of witnesses.

    The case is not presented as one of malicious prosecution and an argument was presented that was an attempt to side-step the formal requirements of that from of action. But at least in relation to this application for strike-out I am not persuaded that the existence of an arguable case must be determined by the form of action adopted.

    So far as concerns the principles regarding the immunity of witnesses in connection with judicial proceedings, those principles should be of general application regardless of the particular form of the action. Thus, for example, whether the action is one of defamation or of negligence or, as in the present case, of conspiracy to injure and misfeasance in a public office, the same principles should apply. In Marrinan v. Vibart [1963] 1 Q.B. 528 at p. 535 Sellers L.J. stated: "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". A like view was expressed by Starke J. in the earlier Australian case of Cabassi v. Vila [1940] C.L.R. 130 Starke J. at pp. 140-141.

    It is temptingly easy to talk of the application of immunities from civil liability in general terms. But since the immunity may cut across the rights of others to a legal remedy and so runs counter to the policy that no wrong should be without a remedy, it should be only allowed with reluctance, and should not readily be extended. It should only be allowed where it is necessary to do so. As McCarthy P. observed in Rees v. Sinclair [1974] 1 N.Z.L.R. 180, at p. 187, "The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice". Furthermore the idea of a universal immunity attaching to a person in the performance of some particular function requires to be entertained with some caution. As Lord Wilberforce observed in Roy v. Prior [1971] A.C. 470, at p. 480 "Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest". Once a situation has been identified as deserving of immunity it may readily be accepted that the immunity is in its quality absolute. But the process of identification may require to be undertaken with a particular eye to an evaluation of the public interests involved. The quality of an immunity may be absolute, but its application may not be invariable.

    On the other hand there has to be some degree of certainty about the existence of an immunity for it to be effective. The matter cannot be entirely left as one to be determined on each and every occasion. For the immunity of a witness to be effective it is necessary that the person concerned should know in advance with some certainty that what he or she says will be protected. So even although the matter may depend in any case upon a balancing of interests it ought to be possible to predict with some confidence whether or not an immunity will apply. The law has sought to achieve this by making it clear that the substance of the evidence presented to the court in judicial proceedings will be immune from attack. But a more difficult question arises with regard to the preparation of material and the investigation of a case before the matter comes before the court.

    Two reasons can be identified for the justification of granting an immunity to witnesses from civil process. They were expressed by Lord Wilberforce in Roy v. Prior (at p. 480) in these terms: "The reasons why immunity is traditionally (and for this purpose I accept the tradition) conferred upon witnesses in respect of evidence given in court, are in order that they may give their evidence fearlessly and to avoid a multiplicity of actions in which the value or the truth of their evidence would be tried over again". So far as the first of these reasons is concerned it may be considered necessary that witnesses should be granted an immunity so as to secure that they may enjoy a freedom to express themselves without fear of any consequences to themselves. In the interests of the judicial process a witness should not be exposed to the risk of having his or her evidence challenged in another process. Those engaged in the judicial process should be under no restraint from saying what has to be said and doing what has to be done for the proper conduct of that process. As Salmon J. observed in Marrinan v. Vibart [1963] 1 Q.B. 234, at p. 237 "This immunity exists for the benefit of the public, since the administration of justice would be greatly impeded if witnesses were to be in fear that any disgruntled and possibly impecunious persons against whom they gave evidence might subsequently involve them in costly litigation".

    As regards the second reason the law favours a termination to litigation and in various ways endeavours to prevent a re-hearing of a matter which has already passed through the courts. If witnesses were open to a challenge upon the substance of the evidence which they have given in court proceedings, the whole matters to which the evidence related would again be canvassed before another court and in effect the case would be being re-tried. To allow such a proceeding would enable a collateral attack to be made upon the earlier decision and the law is opposed to that kind of repetitive litigation. That principle was recognised in Hunter v. Chief Constable of the West Midlands Police [1982] A.C. 529, where an attempt was made to open up in a civil action allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. That was held to be a collateral attack amounting to an abuse of process. The decision was not in terms exploring the limits of police immunity, but the effect was to provide an immunity.

    The immunity attaches essentially to what persons who may be called to give evidence say or do before the court. It is an immunity "in respect of evidence given in court" (Roy v. Prior at p. 480), or, to quote Crompton J. in Henderson v. Broomhead (1859) 4 H. & N. 569 at p. 579, "for words spoken or written in the course of any judicial proceeding". But the immunity would be worthless if it was confined to actual giving of evidence in the court. Thus, as was recognised in Watson v. McEwan, the immunity should cover what is said at the stage when a witness provides a statement of the evidence which he or she is going to give in court, since the immunity relating to what occurs in the trial could otherwise readily be circumvented. Even if a potential witness provides a statement but is not in the event called as a witness, nevertheless the immunity ought to apply. As the Earl of Halsbury L.C. recognised in Watson v. McEwan, the practical answer to the fear of hardship caused by the allowance of an immunity in such a case is that no one would know anything about the statement; it would simply slumber in the solicitor's office. But at the stage of the obtaining of the statement it would not be possible to affirm with certainty whether or not the evidence which it contained was to be used in court and the possibility is enough to support the immunity. The immunity cannot depend upon the chance of the particular person being called as a witness in court.

    That same consideration of avoiding a circumvention of the immunity should serve to justify its application at the early stages of a litigation or a prosecution where evidence is being collected with a view to court proceedings. It may be that here some delicate questions of fact may arise as to whether or not the material in question was or was not provided with a view to court proceedings. But while the line may be difficult to draw in some cases the distinction in principle is clear. In the case of statements, as Drake J. recognised in Evans at p. 191, the statement must be made "for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered". The test which he formulated (at p. 192) was as follows: "the protection exists 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".

    It is then not enough that there be an investigation; the investigation must also be with a view to an action or to a prosecution which is already under consideration. Before that stage is reached it would be very difficult to justify the grant of an immunity. Even after that stage, if proceedings are commenced, it does not necessarily follow that all that is said or done in connection with the proceedings will be immune. A helpful distinction has been drawn in the American jurisprudence between matters of advocacy and matters of detection. In Imbler v. Pachtman it was recognised that an absolute immunity was appropriate to the conduct of prosecutors which was intimately associated with the judicial phase of the criminal process. In Buckley v. Fitzsimmons the matter was further developed. In that case it was alleged that the prosecutors had conspired to manufacture false evidence which would link the petitioner's boot with a bootprint of a murderer. The Supreme Court held that immunity was given to the actions of a prosecutor not simply because the actions were performed by a prosecutor. A distinction was drawn between the functions which attracted the immunity and those which did not. As Justice Stevens observed (at p. 2616) "There is a difference between the advocate's role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective's role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand". That the police may mount prosecutions or that prosecutors may engage in detective work should not obscure the critical consideration of the function which is being performed. It is to the function that the immunity attaches rather than to the individual who performs it.

    Some activities which may be described as investigative may thus be covered by the immunity, such as the preparation of reports with a view to these forming part of the evidence to be given in court. In Evans it was held that the collection and analysis of material relevant to an offence or a possible offence under investigation, in that case the recovery and analysis of organs from a deceased child, fell within the scope of the immunity. Thus a statement of claim seeking damages for alleged negligence in allowing the organs to become contaminated in a post mortem examination was struck out. In that case those who had been engaged in the examination and analysis would have been potential witnesses and their evidence would have covered the recovery of the organs and the result of the analysis. In X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633 at p. 755G Lord Browne-Wilkinson stated "The psychiatrist must have known that, if such abuse was discovered, proceedings by the local authority for the protection of the child would ensue and that her findings would be the evidence on which those proceedings would be based. It follows in my judgment that such investigations having such an immediate link with possible proceedings in pursuance of a statutory duty cannot be made the subject of subsequent claims". I do not understand that the views expressed in Taylor v. Serious Fraud Office [1999] 2 A.C. 177 innovated upon this position.

    But that is not to say that everything said or done by anyone in the investigation or preparation for a judicial process is covered by the immunity. In drawing the line in any particular case it may 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. The reason for admitting to the benefit of the immunity things said or done without the walls of the court is to prevent any collateral attack on the witness and circumvent the immunity he or she may enjoy within the court. As Devlin L.J. observed in Lincoln v. Daniels [1962] 1 Q.B. 237, at p. 263, "I have come to the conclusion that the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do so in order to protect those who are to participate in the proceedings from a flank attack".

    The protection is granted to a witness in the interest of establishing the truth and to secure that justice may be done. But the witness is not immune from a charge of perjury and that possibility remains as a deterrent against an abuse of his position. Immunity from that would not serve the interests of justice in the case. So also before matters have reached the stage of trial the immunity should not be available to give protection for matter which is designed to defeat the ends of justice rather than to serve them. In Spurlock v. Satterfield Circuit Judge Nathaniel R Jones stated (at p. 1003) "The doctrine of absolute immunity for testimony is a shield to ensure that those individuals intimately involved in the judicial processes are able to carry out their responsibilities without the constant threat of vexatious lawsuits, not a sword allowing them to trample the statutory and constitutional rights of others. By virtue of being a witness, Satterfield is not entitled to absolute immunity in performing any non-testimonial or pre/post-testimonial acts. What plaintiffs, in essence, allege here is the fabrication of probable cause, and contrary to Satterfield's argument, the fabrication of probable cause cannot be immunised by later providing false testimony. Obviously, the two alleged acts, manufacturing the evidence and later presenting that false evidence in the form of testimony, are inextricably linked. Nonetheless, we find that adopting Satterfield's reasoning would lead to the untenable result that officials who fabricate evidence or manufacture probable cause could later shield themselves from liability simply by presenting false testimony regarding the evidence". These observations seem to me to be in point in the present appeal.

    The only case which counsel for the appellants identified as being contrary to his submission was that of Silcott v. Commissioner of Police for the Metropolis. In my view the approach there taken to the scope of the immunity was too widely expressed. To extend it to cover all conduct that can fairly be said to be part of the investigatory or preparatory process takes it beyond the length of the intimate connection with the court proceedings and the extent which is necessary for the purposes for which it is granted. The planting of a brick or a drug by a police officer so that it can be found by another is not matter which would be expected to form part of the prosecution case in court and there is no necessity for such activity to have the protection of an immunity.

    If one seeks to apply the reasons which justify an immunity to the present case it seems to me that it would not be proper to strike out the statement of claim. So far as the first purpose of the immunity is concerned, the necessity to secure that witnesses will speak freely and fearlessly, this justification is substantially irrelevant to the present case. What is alleged here is not the telling of lies about facts which had occurred but a deliberate fabrication of facts which had not occurred. What is under attack is not the investigation of possible realities but the preparation of a fiction. In so far as the immunity granted to a witness relates to the substance of the evidence which he or she gives or is to give, the matters of which the appellants complain will almost certainly not be the intended substance of the evidence of those who were engaged in the conspiracy. It cannot be that everything which is said or done in the preparation for judicial proceedings is necessarily immune. Where evidence is fabricated or statements concocted, protection from attack should not be gained by a subsequent presentation of false testimony in court. So far as the second purpose of the immunity is concerned, the desirability of avoiding repeated litigation on the same issue, that too has no relevance to the present case. In the event there was no concluded trial. The proceedings were stayed on the ground of an abuse of process. There is no decision against which a collateral attack can be made.

    If one turns to consider the other factors which may weigh in deciding whether or not in the circumstances of the present case an immunity should be recognised, it should be noticed that the claimants have been subjected to significant periods in custody, so that in the event they can justifiably complain of some injury. Furthermore the allegations which they present are of machinations by members of a police force of some seriousness. The arranging for the presentation of false evidence to be given by the witness Titley would, if true, constitute a grave abuse of the duties of the police. On the other hand in balancing all the relevant considerations it is right to bear in mind that there may well be grounds for questioning the innocence of the accused. But that cannot affect their entitlement to have access to the courts. The form of action which they have adopted is not a matter for consideration at this stage of the process. Nor are we concerned to explore questions of qualified immunity and malice. The sole question is whether the claim made is so clearly countered by an absolute immunity as to require it to be struck out. In all the circumstances I am not able to return an affirmative answer to that question. I would allow the appeal.

LORD HUTTON

My Lords,

 
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