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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    Therefore there is no general principle that in order to prevent honest police officers from being vexed and harassed by unfounded actions brought by hostile persons whom they have arrested, they should be given absolute immunity in respect of their actions in carrying out their duties, and that in order to protect the many honest police officers from the vexation of rebutting unfounded allegations the immunity should also extend to protect the few dishonest police officers.

    The policy underlying the immunity which it is contended justifies the extension of the immunity to cover this case is that it is given so that persons who may be involved in future cases will not be deterred from playing their part by fear of a civil action being brought against them. Although police officers who give evidence in court or who prepare statements of the evidence which they will give in court are entitled to the same immunity as other witnesses, I think the reality is that police officers are accustomed to having false accusations made against them by suspects whom they arrest in the course of their duties and are much less likely than other persons to be deterred from doing their duty by a fear that suspects may bring civil actions against them which they know will, save in the most exceptional circumstances, be defended on their behalf by the Commissioner or Chief Constable of their force. Police officers are not deterred from arresting or interrogating a suspect by the knowledge that they will not have absolute immunity from suit if the suspect brings a civil action against them alleging improper force in arresting or interrogating him, and I do not think that police officers will be deterred from noting the answers of suspects in interviews or from searching suspects for weapons or drugs if they know that they will not have absolute immunity in respect of a civil action alleging fabrication of interview notes or the planting of an incriminating object.

    Mr. Austin-Smith Q.C. for the Chief Constable submitted that the existence of the tort of malicious prosecution (where immunity cannot be claimed) ensures that the proper balance is struck between the public interest in bringing criminals to justice and the protection of those engaged in doing so from harassment by vexatious actions on the one hand and the public interest in providing redress to a citizen against dishonest and malicious actions by police officers in the investigation of crime on the other hand. However, to establish the tort of malicious prosecution the plaintiff must prove absence of reasonable and probable cause for a prosecution, and in my opinion notwithstanding that there is reasonable and probable cause to prosecute, a suspect should be entitled to sue the police for malicious and dishonest conduct in fabricating evidence against him.

    In Taylor v. Serious Fraud Office, this House approved the test stated by Drake J. in Evans v. London Hospital Medical College (University of London), although Lord Hoffmann expressed no view on the actual outcome of the case, stating at 215E:

    "Actions for defamation and for conspiracy to give false evidence plainly fall within the policy of the immunity and actions for malicious prosecution fall outside it. In between, there is some disputed ground. In Evans v. London Hospital Medical College (University of London) [1981] 1 W.L.R. 184 Drake J. held that it precluded reliance on the statement in an action for negligence in which it was alleged that a carelessly prepared post mortem report had led to the plaintiff being unjustifiably arrested and charged with murder. I express no view on this case, which I think might nowadays have been decided on the ground that the defendants owed the plaintiff no duty of care."

    On the facts of that case I consider that the decision of Drake J. that the defendants were entitled to absolute immunity was correct. Although the plaintiff alleged that it was done negligently, the organs were removed from the body and examined for the genuine purpose of making a report which would constitute a statement of evidence for a possible prosecution and therefore, in my opinion, came within the ambit of the immunity. But I consider that the position is different where, as alleged by the plaintiffs in this case, steps are taken prior to the making of a statement of evidence, not for the purpose of making a statement of evidence which the maker intends to be an accurate and truthful one, but for the wrongful purpose of fabricating false evidence which would be referred to in an untruthful statement of evidence. In my opinion immunity should not be extended to cover the wrongful fabrication of evidence or of a note which will purport to be used to refresh the memory of the witness in the witness box and which will give the impression to the jury that there is support for the witness's false statement that the suspect made an admission. This view is not in conflict with the principle that immunity (where it exists) is given to a malicious and dishonest witness as well as to an honest witness, and I think that the honest (though negligent) examination of articles to enable a statement of evidence to be made comes within the concept of the preparation of a statement of evidence, whereas the deliberate fabrication of evidence to be referred to in a statement of evidence does not come within that concept. It follows that, in my opinion, the Court of Appeal in Silcott was in error in stating the immunity rule as widely as it did.

    In the present case I consider, for the reasons which I have given, that the statement of claim should not have been struck out and the action should not have been dismissed. In my opinion the police officers against whom the allegation of conspiracy and misfeasance in public office are made are not entitled to absolute immunity save in so far as an allegation against them is grounded on their statements of the evidence which they would give when the case came to trial. Therefore I would allow the appeal and would order that the action be remitted to proceed in the High Court. I express no opinion on the extent to which the ten allegations summarised by the parties constitute causes of action in tort against the police.

 
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Prepared 27 July 2000