House of Lords - 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

House of Lords

Session 1999-2000
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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

HOUSE OF LORDS

Lord Hope of Craighead Lord Mackay of Clashfern Lord Cooke of Thorndon Lord Clyde Lord Hutton

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE
DARKER (PERSONAL REPRESENTATIVE OF DAVID STANLEY DOCKER (DECEASED) AND OTHERS (A.P.)

(APPELLANTS)

(FORMERLY HEAD AND OTHERS (A.P.)

(APPELLANTS))

v.

CHIEF CONSTABLE OF THE WEST MIDLANDS POLICE

(RESPONDENT)

ON 27 July 2000

LORD HOPE OF CRAIGHEAD

My Lords,

    When a police officer comes to court to give evidence he has the benefit of an absolute immunity. This immunity, which is regarded as necessary in the interests of the administration of justice and is granted to him as a matter of public policy, is shared by all witnesses in regard to the evidence which they give when they are in the witness box. It extends to anything said or done by them in the ordinary course of any proceeding in a court of justice. The same immunity is given to the parties, their advocates, jurors and the judge. They are all immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of the proceedings were said or done falsely and maliciously and without reasonable and probable cause: Dawkins v. Lord Rokeby (1873) L.R. 8 Q.B. 255, 264 per Kelly C.B. The immunity extends also to claims made against witnesses for things said or done by them in the ordinary course of such proceedings on the ground of negligence.

    No challenge is made in this case to what may conveniently be described as the core immunity. It is not suggested that police officers who participate in the proceedings as witnesses should no longer have the benefit of it in regard to things said or done by them while they are actually in the witness box. The question that has been raised relates to the further extent of the immunity. Where are the boundaries to be drawn? It arises because there is another factor that must always be balanced against the public interest in matters relating to the administration of justice. It is the principle that a wrong ought not to be without a remedy. The immunity is a derogation from a person's right of access to the court which requires to be justified.

    The background to the case has been explained by my noble and learned friend Lord Hutton, whose speech I have had the advantage of reading in draft and with which I agree. The appellants claim damages against the police for conspiracy to injure and misfeasance in a public office. If their claims related only to things said or done by the police officers while they were in the witness box they would be excluded by the core immunity. It was on the ground of the immunity that the claims were struck out by Maurice Kay J., whose judgment was upheld by the Court of Appeal (Millett L.J., Auld L.J. and Schiemann L.J.). But the police officers to whose conduct the claims relate did not enter the witness box. The trial and all further proceedings on the indictment were stayed as an abuse of process. The claims are based on allegations about things done by the police while they were engaged in the investigation of crime and during the process of preparing the case for the trial. If the allegations are true, the police would, but for the immunity, be liable to the appellants in damages.

    The first step that must be taken in order to identify the extent of the immunity is to examine the grounds of public policy which explain the basis for the immunity. In Silcott v. Commissioner of Police for the Metropolis [1996] 8 Admin. L.R. 633, 637C-E Simon Brown L.J. said:

"The public policy purposes underlying the immunity are essentially two-fold. First, per Fry, L.J. in Munster v. Lamb (1883) 11 Q.B.D. 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."

    The second of these two policy reasons relates only to the core immunity, as it is limited in its application to things said or done in court. Lord Wilberforce made this clear when he said at p. 480 that the immunity which he was considering was that of witnesses "in respect of evidence given in court" and when he referred to the fact that the trial process, in the subjection of witnesses to cross-examination and confrontation with other evidence, contains some safeguard against careless, malicious or untruthful evidence. The appellants' allegations relate to things done outside the court room, so it is the first policy reason only which is relevant to this case. In the Court of Appeal Auld L.J. said:

"The whole point of the first public policy reason for the immunity is to encourage honest and well-meaning persons to assist justice even if dishonest and malicious persons may on occasion benefit from the immunity."

As Lord Hoffmann put it in Taylor v. Serious Fraud Office [1999] 2 A.C. 177, 208E, the absolute immunity rule:

". . . is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say."

    It is clear that, if that objective is to be achieved, it would not be satisfactory to confine the immunity to evidence given by witnesses while they are actually in the witness box. Witnesses seldom enter the witness box without having been interviewed beforehand by a solicitor or an investigating police officer. As the Earl of Halsbury L.C. said in Watson v. McEwan [1905] A.C. 480, 487, the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence extend to the preliminary examination of witnesses to find out what they can prove. In Evans v. London Hospital Medical College and Others [1981] 1 W.L.R. 184 it was held that the immunity was available to potential witnesses in criminal proceedings at a time when such proceedings were merely in contemplation but had not yet commenced. The same view was taken in the case of an expert's report prepared in the knowledge that, if there was evidence to bring proceedings for child abuse, proceedings would be brought and the report would form part of the evidence in those proceedings: X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633, per Lord Browne-Wilkinson at p. 755G. In Taylor v. Serious Fraud Office [1999] 2 A.C. 177 it was held that the immunity extended also to statements made out of court which could fairly be said to be part of the process of investigating a crime or a possible crime with a view to prosecution. In the course of my speech at p. 218G I referred in this connection to investigators and the prosecuting officials with whom they are required to communicate. The protection of the immunity is available even if the trial does not take place: Stanton v. Callaghan [2000] 1 Q.B. 75.

    A similar extension of the immunity to statements given by police officers who later gave evidence or were potential witnesses at the trial can be justified on public policy grounds. Here again it is normal for police witnesses to undergo a preliminary examination during the preparatory stage in order to find out what they can prove. Prosecutors and defence solicitors require this information in order that they may take an informed decision as to which witnesses to call and whether they should be cross-examined and, if so, on what grounds. The trial process would be inhibited if police witnesses and potential police witnesses were to be exposed to action for things said or done by them during the preparatory stage when they are undergoing this preliminary examination. The same approach can properly be taken to the preparation of technical reports by police officers with expertise in such matters as ballistics, explosives or fingerprinting. As in the case of other expert witnesses, it would unduly inhibit the trial process if they did not have the protection of the immunity in regard to the content of the reports which they had prepared with a view to giving evidence should the matter come to trial.

    But there is a crucial difference between statements made by police officers prior to giving evidence and things said or done in the ordinary course of preparing reports for use in evidence, where the functions that they are performing can be said to be those of witnesses or potential witnesses as they are related directly to what requires to be done to enable them to give evidence, and their conduct at earlier stages in the case when they are performing their functions as enforcers of the law or as investigators. The actions which the police take as law enforcers or as investigators may, of course, become the subject of evidence. It may then be necessary for the police officers concerned to assume the functions of witnesses at the trial to describe what they did or what they heard or what they saw. But there is no good reason on grounds of public policy to extend the immunity which attaches to things said or done by them when they are describing these matters to things done by them which cannot fairly be said to form part of their participation in the judicial process as witnesses. The purpose of the immunity is to protect witnesses against claims made against them for something said or done in the course of giving or preparing to give evidence. It is not to be used to shield the police from action for things done while they are acting as law enforcers or investigators. The rule of law requires that the police must act within the law when they are enforcing the law or are investigating allegations of criminal conduct. It also requires that those who complain that the police have acted outside the law in the performance of those functions, as in cases alleging unlawful arrest or trespass, should have access to a court for a remedy.

    In Silcott v. Commissioner of the Police for the Metropolis (1996) 8 Admin.L.R. 633, 640C-D Simon Brown L.J. said:

"Protection must extend to the preparation of evidence equally as to its presentation.…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 v. London Hospital Medical College and Another [1981] 1 W.L.R. 184 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."

    I would hold, with respect, that Simon Brown L.J. went too far when he said that the protection of the immunity must extend to such acts to procure false evidence as the planting of a brick or drug or the fabrication of a record of interview. He overlooked the distinction which I would draw between the act itself and the evidence that may be given about the act or its consequences. This distinction rests upon the fact that acts which are calculated to create or procure false evidence or to destroy evidence have an independent existence from, and are extraneous to, the evidence that may be given as to the consequences of those acts. It is unlikely that those who have fabricated or destroyed evidence would wish to enter the witness box for the purpose of admitting to their acts of fabrication or destruction. Their acts were done with a view to the giving of evidence not about the acts themselves but about their consequences. The position is different where the allegation relates to the content of the evidence or the content of statements made with a view to giving evidence, and not to the doing of an act such as the creation or the fabrication of evidence. The police officer who is alleged to have given false evidence that he found a brick or drug in the possession of the accused or that he heard an accused made a statement or a remark which was incriminating is protected because the allegation relates to the content of his evidence. He is entitled to the immunity because he was speaking as a witness, if he made the statement when he was giving evidence, or was speaking as a potential witness, if he made it during his preliminary examination with a view to his giving evidence.

    In Evans v. London Hospital Medical College and Others [1981] 1 W.L.R. 184, 191H Drake J. said that the immunity must extend not only to the giving of evidence in court and formal statements made in preparation for the giving of evidence but also to the acts of the witness in collecting or considering material on which he may later be called to give evidence. While that decision was correct on its own facts, I would not accept for all purposes this description of the extent of the immunity. The explanation which the judge gave was that, if the immunity was not so extended, a convicted person could sue the police officers for the allegedly negligent manner in which they had investigated the crime. But I think that this tends to confuse the functions of the witness with that of the investigator. It is important also not to confuse the immunity rule which extends to witnesses with the question whether or not in particular circumstances a duty of care is owed by the police or by prosecutors: see Hill v. Chief Constable of West Yorkshire [1989] A.C. 53; Elguzouli-Daf v. Commissioner of Police of the Metropolis [1995] Q.B. 335. The purpose of the immunity rule is to protect the witness in respect of statements made or things done when giving or preparing to give evidence. The acts of the witness in collecting material on which he may later be called to give evidence are not protected by the immunity. The immunity extends only to the content of the evidence which the witness gives or is preparing to give based on that material. I think that Sir Richard Scott V. C. described the position correctly when he said in Bennett v. Commissioner of Police for the Metropolis (1997) 10 Admin. L.R. 245, 252D-E that the immunity extends to statements made or agreed to be made out of court "if these were clearly and directly made in relation to the proceedings in court, for example, witnesses' proofs of evidence."

    In the present case the allegations that have been made against the police officers are not related only to the content of evidence that they might have given if they had been called upon to give evidence at the trial. They relate, at least in part, to things done by the police during the initial stage when they were acting as investigators. I do not think that it can be asserted without hearing the evidence that these allegations fall within the boundaries of the immunity. This is a matter which should be considered in the light of the facts as they emerge at the trial. I would allow the appeal and make the order that has been proposed by my noble and learned friend Lord Hutton.

LORD MACKAY OF CLASHFERN

My Lords,

    I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Hutton. I agree with him that this appeal should be allowed and that the order he proposes should be made.

    In view of the importance of the case, I state my reasons briefly. The action has been struck out by the Court of Appeal affirming the judgment of Maurice Kay J. for the reason that "the immunity rule" applied and that if that rule is to be true to the public policy reasons for it, there is no logical basis for distinguishing between making witness statements and investigation and other preparatory conduct with a view to making them.

    By the end of the 19th Century, after a long history, it was settled that witnesses taking part in a trial could not be sued for anything written or spoken in the course of the proceedings. In Watson v. M'Ewan [1905] A.C. 480 the House of Lords held that the privilege which surrounds the evidence actually given in a Court of Justice necessarily involves the same privilege in the case of making a statement to a solicitor and other persons who are engaged in the conduct of proceedings in Courts of Justice when what is intended to be stated in the court is narrated to them.

    In Taylor v. Serious Fraud Office [1999] 2 A.C. 177 this House held that the immunity extended also to out of court statements which could fairly be said to be part of the process of investigating crime with a view to prosecution. However it is vitally important to note that Lord Hoffmann with whom Lord Goff of Chieveley, Lord Hope of Craighead and Lord Hutton agreed said at 214E "The policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. If this object is to be achieved, the person in question must know at the time he speaks whether or not the immunity will attach". At 215C he said "As the policy of the immunity is to encourage freedom of expression, it is limited to actions in which the alleged statement constitutes the cause of action".

    In the present case, the summary of the plaintiffs' allegations, which we have to assume for the purpose of this striking out application are true, includes allegations of police officers knowingly instructing undercover agents to breach police instructions of operation, in particular that a police officer must not act as an agent provocateur, and that the police officers manipulated a police informer to prevent the plaintiffs having a fair trial in particular by refusing to comply with the judge's directions on pre-trial disclosure. The pleaded causes of action are that there was a conspiracy to injure the plaintiffs by use of unlawful means and that police officers committed the tort of misfeasance in a public office.

    The only ground on which it was claimed that this action should be struck out was that the respondent was protected by the immunity to which I have already referred. In my view there are materials in these allegations which do not depend as a cause of action on alleged statements relating to the preparation of evidence for proceedings and go beyond matters of freedom of speech either at, or, in the course of preparation for, a criminal trial. It follows that in my opinion the immunity claimed cannot apply to these allegations and consequently the action cannot be struck out.

    In the course of the argument before us reference was made to the judgment of Drake J. in Evans v. London Hospital Medical College (University of London) and others [1981] 1 W.L.R. 184 at p. 191 after referring to earlier authorities Drake J. said:

"If this object is to be achieved I think it 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 attached 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 the 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 had 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."

    It is clear on looking at the nature of the claim made in that case that it was based upon the report of the post mortem and analysis results which had been prepared by the individual defendants in various capacities as a result of which proceedings had been taken against the plaintiff. In so far as the defendants' conduct was alleged to be negligent this was relevant only because this negligence led to the making of the report in the terms which were the subject of the complaint. I conclude that Drake J's. decision did not extend the immunity to alleged negligent conduct not reflected in a written report or statement. In Silcott v. Commissioner of Police for the Metropolis [1996] 8 Admin.L.R. 633 at p. 637 Simon Brown L.J. quotes from the judgment of Drake J. in Evans in such a way as to leave open the possibility that the immunity extends to conduct which is not related to the preparation of a report or statement in writing. At p. 640 Simon Brown L.J. goes on:

"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."

    I have found the last part of this quotation unacceptable as it seems to me to stretch the immunity beyond an immunity in respect of statements made for the purpose of court proceedings to an immunity not related to any statement made in court proceedings. For example, in the illustration where a police officer plants a brick or drug on an accused person I would find it hard to envisage that any statement is likely to be made by him to that effect and therefore an immunity which stretches so far is not based on protecting a statement to be made by the person who does the planting. The person who subsequently innocently finds the drug or brick on the accused and makes a statement that he so found the brick or drug will be protected in respect of the statement by the immunity but I see no reason to extend it to the conduct of the officer who does the planting, who has no intention whatsoever of disclosing this in any statement. In my view, this part of Simon Brown L.J.'s judgment applies the judgment of Drake J. more widely than its context in the case of Evans warrants. The essential character of the immunity as described in the passages I have quoted from Lord Hoffmann in Taylor limits the application of the immunity to conduct which can be called in question only by a founding on a statement in court or a statement which is part of the preparation of evidence for court proceedings.

    I should also wish to say that in applying some formulations of the immunity in the authorities as it affects judges, the decision of this House In re McC. (A Minor) [1985] A.C. 528 requires to be kept in view and particularly I should refer to the speech of Lord Bridge of Harwich at pp. 540F-541A.

LORD COOKE OF THORNDON

My Lords,

    "But my experience leads me to believe that Her Majesty's servants are made of sterner stuff" said Lord Reid in Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004, 1033, rejecting an argument that public policy required immunity for the Home Office lest the risk of claims could inhibit officers from allowing Borstal boys out of the institution on training exercises. It is essentially for the same reason that I would reject the contention that immunity protects the kind of conduct alleged against police officers in the present case.

    An agreed summary of the allegations appears in the speech of my noble and learned friend Lord Hutton. In terms of the test proposed by Drake J. in Evans v. London Hospital Medical College [1981] 1 W.L.R. 184, 192, on which the respondent relies, it is obvious that none of the alleged conduct could fairly be said to be part of the process of investigating a crime. The fabrication of evidence, for instance, is almost the antithesis of investigation; it is creation. The argument has to be and is, however, that without immunity investigating police officers would be deterred from carrying out their duty by fear of vexatious actions. The reasoning involved is in substance that of Fry L.J. in Munster v. Lamb (1883) 11 Q.B.D. 588, 607, in a well-known passage explaining why defamation actions cannot be brought against judges and witnesses. It is encapsulated in a statement of Simon Brown L.J. in Silcott v. Commissioner of Police for the Metropolis (1996) 8 Admin.L.R. 633, 640, which was cited and followed by Auld L.J. in the judgment now under appeal:

"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."

    Absolute immunity is in principle inconsistent with the rule of law but in a few, strictly limited, categories of cases it has to be granted for practical reasons. It is granted grudgingly, the standard formulation of the test for inclusion of a case in any of the categories being Sir Thaddeus McCarthy P.'s proposition in Rees v. Sinclair [1974] 1 N.Z.L.R. 180, 187, "The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice." Many other authorities contain language to similar effect.

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