Malicious Prosecution, Misconduct of Police, Practice – Pleadings – Striking out – Criminal proceedings against plaintiffs stayed as abuse of process – Action against police for damages for conspiracy to injure and misfeasance in public office – Amended statement of claim alleging fabrication of evidence – Whether police immune from suit – Whether amended statement of claim to be struck out: Darker and others v Chief Constable of the West Midlands Police (United Kingdom)
Darker and others v Chief Constable of the West Midlands Police
House of Lords
 1 AC 435
HEARING-DATES: 15, 16, May 27 July 2000
27 July 2000
Practice – Pleadings – Striking out – Criminal proceedings against plaintiffs stayed as abuse of process – Action against police for damages for conspiracy to injure and misfeasance in public office – Amended statement of claim alleging fabrication of evidence – Whether police immune from suit – Whether amended statement of claim to be struck out
Following a police undercover operation involving an informer, four of the five plaintiffs were indicted on counts alleging conspiracy to import cannabis resin and four on counts alleging conspiracy to forge travellers’ cheques. In the course of the trial the judge ruled that the police had been significantly at fault in respect of disclosure and directed that the charges be permanently stayed on the ground of abuse of process. The plaintiffs brought an action against the defendant chief constable claiming damages for conspiracy to injure and misfeasance in public office, alleging, inter alia, that police officers had fabricated evidence against them. The defendant applied for the statement of claim to be struck out, claiming that the acts alleged were covered by an absolute privilege or immunity. The judge struck out the statement of claim and dismissed the plaintiffs’ action. The Court of Appeal dismissed the plaintiffs’ appeal.
On appeal by the plaintiffs-
Held, allowing the appeal, that public policy required in principle that those who suffered a wrong should have a right to a remedy; that, although the absolute immunity from action given in the interests of the administration of justice to a party or witness, including a police witness, in respect of what he said or did in court extended to statements made for the purpose of court proceedings and to prevent him being sued for conspiracy to give false evidence, public policy did not require it to be extended to things done by the police during the investigative process which could not fairly be said to form part of their participation in the judicial process as witnesses; that, in particular, the immunity did not extend to cover the fabrication of false evidence; and that, accordingly, the plaintiffs’ statement of claim should not have been struck out and the action should be allowed to proceed to trial (post, pp 446D, 448B-F, 449A-B, 450A-C, 451A-B,452C G-H, 453G-454A, 456A-B, H-457A, 461B-G, 463G, 464C-E, 465A, E-F,468F, 469E-H, 470F-G, 471G-472D).
Taylor v Director of the Serious Fraud Office  2 AC 177, HL(E) and Bennett v Comr of Police of the Metropolis (1997) 10 Admin LR 245 applied.
Evans v London Hospital Medical College (University of London)  1 WLR 184 considered.
Silcott v Comr of Police of the Metropolis (1996) 8 Admin LR 633, CA overruled.
Decision of the Court of Appeal reversed.
APPEAL from the Court of Appeal
This was an appeal by the plaintiffs, Darren Haigh Darker (personal representative of David Stanley Docker), Albert Head, William Rea Lamont, Steven Rhodes and John Clark, by leave of the House of Lords (Lord Browne-Wilkinson, Lord Steyn and Lord Hoffmann) given on 16 February 1999 from the judgment of the Court of Appeal (Millett, Auld and Schiemann LJJ) on 24 March 1998 dismissing the plaintiffs’ appeal from Maurice Kay J The judge on 27 September 1996, on an application by the defendant, the Chief Constable of the West Midlands Police, had struck out the plaintiffs’ amended statement of claim and dismissed their action against the defendant in which they claimed damages for conspiracy to injure and misfeasance in public office. The grounds on which the defendant had applied for the statement of claim to be struck out were that it disclosed no reasonable cause of action and/or was scandalous and vexatious and/or that it might prejudice and embarrass the fair trial of the action.
The facts are stated in the opinion of Lord Hutton.
Alan Newman QC and Paul Spencer for the plaintiffs. The effect of the absolute immunity rule is to deny access to justice to a person who may have suffered grievous harm at the hands of another who has maliciously caused him damage. This is because, as a matter of policy, the courts decide that the proper functioning of the justice system requires absolute immunity and overrides the legitimate aims of the victim of such wrongdoing. Such far-reaching consequences require careful balancing of competing interests and a resolution that formulates the absolute immunity rule as narrowly as possible so as to achieve the objectives that the court has identified: see Roy v Prior  AC 470, 480f-g; Saif Ali v Sydney Mitchell & Co  AC 198, 214H, 217 and Rees v Sinclair  1 NZLR 180, 187.
The absolute immunity rule has existed for centuries. Until 1981 the cases had developed so as to “form part of a coherent principle”: see Taylor v Director of the Serious Fraud Office  2 AC 177, 214. The extension of the immunity made by the Court of Appeal in Silcott v Comr of Police of the Metropolis (1996) 8 Admin LR 633, 640c, utilising Drake J’s reference in Evans v London Hospital Medical College (University of London)  1 WLR 184, 192 to “the process of investigating a crime”, was neither necessary nor desirable for the proper administration of justice and created confusion and inconsistency with other decided cases. Moreover, an absolute immunity covering the whole range of police investigative functions is too rigid and over-inclusive. It operates disproportionately to impede a victim’s right of access to the court guaranteed by article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969).
Case after case has dealt with absolute immunity as attaching only to “parties”, “witnesses”, “advocates”, “jurors” and “judge”, categorised in Rondel v Worsley  1 AC 191, 270e as “the five essential ingredients of the judicial process”. The conduct of police officers in the investigative and preparatory stages of a criminal process does not have the requisite “intimate connection”: see Rees v Sinclair  1 NZLR 180, 187 and Saif Ali v Sydney Mitchell & Co  AC 198, 215. [Reference was made to Somasundaram v M Julius Melchior & Co  1 WLR 1394.] If an investigating police officer is a witness at trial, he will qua witness be covered by the immunity rule: see Taylor’s case  2 AC 177, 214G. He does not fit into any of the other five “essential ingredients of the judicial process”: Rondel v Worsley  1 AC 191, 270e.
As to the Watson v M’Ewan; Watson v Jones  AC 480 “extension”, the connection between “the actuality that is undeniably privileged and the foreshadowing of it” must be reasonably close: see Lincoln v Daniels  1 QB 237, 257, 261. All the material in the instant case gathered by the police and forwarded on to the Crown Prosecution Service is too remote: see Szalatnay-Stacho v Fink  KB 1. The witness who has provided a statement to the police with proceedings in mind may be protected, but there is nothing in Watson v M’Ewan to suggest that the solicitor who takes the statement is protected by any rule of absolute immunity: see Somasundaram v M Julius Melchior & Co  1 WLR 1394. [Reference was also made to Gatley on Libel and Slander, 9th ed (1998), para 13.1, pp 280-282; para 13.24, pp 301-303; n 71, p 302; para 14.1, pp 325-327.]
As to the first of the two public policy purposes underlying the absolute immunity rule identified in Silcott’s case 8 Admin LR 633, 637c, Fry LJ when stating that purpose in Munster v Lamb (1883) 11 QBD 588, 607 was referring to judges, witnesses, parties and counsel actually in court. As to the second purpose, it is clear in Roy v Prior  AC 470, 480 that it is limited to witnesses in court. To avoid the immunity being outflanked, it is necessary to extend it to proofs of evidence or other documents given to solicitors or filed in court as a precursor to testifying in court: see Taylor v Director of the Serious Fraud Office  2 AC 177, 208e; Watson v M’Ewan  AC 480, 487; Cutler v Dixon (1585) 4 Co Rep 14b; Astley v Younge(1759) 2 Burr 807; Revis v Smith (1856) 18 CB 126; Henderson v Broomhead (1859) 4 H & N 569; Evans v London Hospital Medical College (University of London)  1 WLR 184; X (Minors) v Bedfordshire County Council  2 AC 633, 755g; Stanton v Callaghan  1 QB 75; Marrinan v Vibart  1 QB 528, 536 and Cabassi v Vila (1940) 64 CLR 130, 140.
So far as concerns the immediate participants in the judicial proceedings, they are covered by the rule and that is sufficient to satisfy the first policy purpose identified in Silcott v Comr of Police of the Metropolis 8 Admin LR 633, 637c. They may participate freely and openly in judicial proceedings without the chilling effect of later being pursued through the courts for what they have said: see Stanton v Callaghan  1 QB 75, 91.
As to the second policy purpose, if a defendant has been found guilty in criminal proceedings there is a public interest in preventing a collateral attack on the verdict through the launching of civil proceedings by the disgruntled defendant, This is achieved through the exercise by the court of its extensive inherent jurisdiction to prevent abuse of process: see Hunter vChief Constable of the West Midlands Police  AC 529, 536. On the other hand, if the criminal proceedings have been resolved in favour of the defendant, there is a public interest in permitting collateral civil proceedings whereby a claimant may seek redress for damage intentionally and maliciously inflicted on him. There is no question of any flank attack on the outcome of the criminal proceedings. On the contrary, the claimant will rely on that outcome. To apply a bulldozer approach by shielding “investigating officers” behind the absolute immunity rule is positively against the public interest.
American jurisprudence provides useful assistance: see Imbler v Pachtman (1976) 424 US 409, 424-431 (n 33); Buckley v Fitzsimmons (1993) 113 S Ct 2606, 2612-2617; Spurlock v Satterfield (1999) 167 F 3d 995, 1001-1004; Forrester v White (1988) 484 US 219, 229 and Burns v Reed (1991) 500 US 478, 486. There is nothing in Taylor v Director of the Serious Fraud Office 2 AC 177 to prevent adoption of the distinction, applying the functional approach, drawn by the Supreme Court in Buckley v Fitzsimmons 113 S Ct 2606. The principle in Spurlock v Satterfield is not confined to the United States courts.
The rule of absolute immunity accorded to a witness in respect of evidence given at court cannot prevent a civil claim for abuse of process merely because, as an incidental aspect, testimony is given in court: see Roy v Prior  AC 470, 477 and Surzur Overseas Ltd v Koros (unreported) 25 February 1999; Court of Appeal (Civil Division) Transcript No 224 of 1999. A plaintiff will only be non-suited if the essence of the tort focuses on the testimony that has been given in court. An action for malicious abuse of process has as an element the absence of reasonable and probable cause (see Gizzonio v Chief Constable of Derbyshire The Times, 29 April 1998; Court of Appeal (Civil Division) Transcript No 559 of 1998), but that is not the litmus test as to whether the absolute immunity rule should be applied. It is not “respectable jurisprudence” to grant the police or the Crown Prosecution Service a blanket immunity from suit arising out of the manner in which they discharge their duties: see Bennett v Comr of Police of the Metropolis (1997) 10 Admin LR 245, 254.
Actions against the police for torts committed in the course of the investigatory process, e g, battery or trespass, are regularly brought. If Silcott v Comr of Police of the Metropolis 8 Admin LR 633 is right, virtually the whole existing jurisprudence dealing with wrongful arrest and police trespass would have to be revised: see Hill v Chief Constable of West Yorkshire  AC 53, 59c. Moreover, there is no policy reason for distinguishing between actions for assault or trespass and actions alleging misfeasance: see Bennett’s case 10 Admin LR 245, 254. [Reference was also made to South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd 2 NZLR 282, 302-303; Palmer v Durnford-Ford 2 QB 483; Calveley v Chief Constable of the Merseyside Police  AC 1228, 1239-1240 and Gray v Comr of Police of the Metropolis (unreported) 30 June 1992; Court of Appeal (Civil Division) Transcript No 612 of 1992.]
Cases such as Hill v Chief Constable of West Yorkshire AC 53 have nothing to do with the absolute immunity rule, which relates solely to judicial proceedings. [Reference was made to Elguzouli-Daf v Comr of Police of the Metropolis QB 335, 349c-e.] Those cases are part of awider developing jurisprudence that provides that those carrying out public/ statutory functions should not as a general rule be liable in negligence: Capital Counties plc v Hampshire County Council  QB 1004; X (Minors) v Bedfordshire County Council  2 Ac 633; Barrett v Enfield London Borough Council  3 WLR 79. While the exclusionary rule formulated in Hill’s case (see pp 59c, 63) serves a legitimate aim, namely, the maintenance of an effective police force, it must not be applied in so rigid a manner as, in reality, to provide a watertight defence: see Osman v United Kingdom (1998) 29 EHRR 245, 316, paras 150, 151. It should, in each case commenced against investigating officers, be balanced against any countervailing public policy considerations identified in Hill’s case. Depending on the circumstances, this may have to await ascertainment of the facts at trial. A failure properly to balance countervailing policy decisions, and therefore in reality to apply the rule as providing an automatic immunity to the police, constitutes a disproportionate restriction on the applicant’s right of access to the court.
There is no inconsistency between domestic law and European Court of Human Rights law as to the manner in which the competing policy considerations should be approached. Although in Barrett v Enfield London Borough Council  3 WLR 79, 84 Lord Browne-Wilkinson found the decision of the European Court “extremely difficult to understand”, the principles announced by the European Court in Osman v United Kingdom 29 EHRR 245 are straightforward; it is the way in which they were applied that presented the difficulty. The Court of Appeal in Osman’s case (see Osman v Ferguson  4 All ER 344) found that the tests of foreseeability and proximity were both satisfied. That being the case, the European Court, whilst using the concept of “disproportionality”, was saying no more than that the particular policy decision was irrational in the light of the Court of Appeal’s findings as to foreseeability and proximity and applied over-rigidly as though it were an automatic immunity as opposed to a factor to be weighed in the balance: see paras 151, 152, pp 316-317. An important consequence of Osman’s case is that each case must be considered separately on its merits, and often this will not be able to occur until trial when the facts have been ascertained.
As regards torts where malice or deliberate wrongdoing is concerned, the balancing of competing policy considerations leads to only one conclusion, namely, that the victim of wrongdoing should be permitted to proceed. In this context, malice is not limited to “targeted malice” but is used in the wider sense identified by Clarke J in Three Rivers District Council v Governor and Company of the Bank of England (No 3)  3 All ER 558, 582. Where a police officer (or any other official carrying out public duties) is alleged to have acted with malice, or to have engaged in deliberate and intentional wrongdoing, the countervailing considerations will inevitably outweigh the policy considerations giving rise to the exclusionary rule. It is in the public interest that an officer exercising his public duties with deliberate malice or intending to do wrong should know that he can be made to account to the victim. An allegation of malice against an individual officer, or a small group of officers, is not going to lead to expensive inquiries into general policing policies. In most of the police negligence cases where the exclusionary rule has been applied the damage has been caused by a third party, namely, a criminal who allegedly should have been apprehendedearlier. In cases of misfeasance, trespass or assault the wrongdoing is by the officer himself. Where a victim has suffered damage as a result of deliberate wrongdoing by a public official, there are strong policy reasons why he should be able to sue: Martin v Watson AC 74, 89. Quite apart from his concern to recover damages, there is a wider public interest in that the courts should be able to identify publicly such wrongdoing and through their judgments seek to prevent its recurrence. The application of an absolute immunity rule which, by its very nature, must be rigidly applied, as opposed to a balancing exercise where the court considers whether permitting the claim to proceed is “just, fair and reasonable”, is necessarily over-rigid and therefore disproportionate. If such rigid application falls foul of article 6(1) of the Convention in cases alleging negligence, a fortiori must that be the case where malice is alleged. Moreover, the grant of absolute immunity to a large class of persons, namely, “investigating officers”, is in itself contrary to the Convention: see Fayed v United Kingdom (1994) 18 EHRR 393, 429, para 65.
Michael Austin-Smith QC and Daniel Janner for the defendant. The boundaries of the immunity rule in the present context were properly identified by Drake J in Evans v London Hospital Medical College (University of London)  1 WLR 184 and approved by the Court of Appeal in Silcott v Comr of Police of the Metropolis 8 Admin LR 633 and the House of Lords in Taylor v Director of the Serious Fraud Office  2 AC 177. [Reference was also made to X (Minors) v Bedfordshire County Council  2 AC 633, 754e-f.]
Although there were specific justifications for each of Lord Pearce’s five categories in Rondel v Worsley  1 AC 191, 268-270, the broad, overarching reason of public policy that he identified for such immunity was the functioning of the judicial process. Although the immunity for each category of beneficiary has the common objective of sustaining the judicial process so that it is not weakened or hampered, those immunities have different origins and have evolved differently to meet the needs of justice in the different situations. [Reference was made to Evans v London Hospital Medical College (University of London)  1 WLR 184, 191d-f; Dawkins v Lord Rokeby (1873) LR 8 QB 255; Roy v Prior  AC 470, 480; Stanton v Callaghan  1 QB 75, 91c; Watson v M’Ewan; Watson v Jones  AC 480, 487-488; Cabassi v Vila (1940) 64 CLR 130 and Marrinan v Vibart  1 QB 528, 533, 535.]
The so-called extension of immunity to cover the classes of potential witnesses in possible proceedings identified by Drake J is in accordance with public policy and authority: see Marrinan v Vibart  1 QB 528, 533, 535 and Taylor’s case  2 AC 177, 214g-215a, 218, 219, 221-222. Police officers intimately connected with the investigation of crime, such as those concerned with the instant appeal, are always potential witnesses and thus fall within the immunity rule in respect of conduct that can fairly be said to he part of the investigatory or preparatory process: see Silcott v Comr of Police of the Metropolis 8 Admin LR 633, 640a-d. [Reference was also made to Gizzonio v Chief Constable of Derbyshire The Times, 29 April 1998; Court of Appeal (Civil Division) Transcript No 559 of 1998.
The protected activities are not limited to words written or spoken but embrace any conduct that fairly falls within the investigatory or preparatoryprocess. Further, the determination of whether such conduct falls within or without the immunity rule cannot depend on its perceived wickedness, notwithstanding that it can serve no public interest to protect the perpetrators of such conduct. If the seriousness of the wrongdoing were to be determinant of whether the conduct should be actionable, it would logically result in the abrogation of the immunity rule in respect of words actually spoken in court. Qualified privilege would not provide a sufficient protection to correspond with the identified public policy reasons: see Taylor v Director of the Serious Fraud Office  2 AC 177, 219. Those who undeservedly gain the benefit of the immunity rule may still find themselves exposed to civil action and to criminal or disciplinary proceedings. If the claimant can prove an absence of reasonable and probable cause in bringing the prosecution, he can claim malicious prosecution. If the conduct otherwise constitutes an abuse of the process of the court he may have a cause of action, notwithstanding that a step in the process involved giving evidence in court. The conduct may result in a criminal prosecution for perjury or perverting the course of justice. In the case of a police officer, he is also exposed to the risk of disciplinary proceedings under the Police Acts. Further, the immunity rule does not provide a blanket immunity; rather, there are clear and important limits to the protection that it affords in that the conduct may be so remote that it falls outside the scope of proceedings in being or realistically contemplated and immunity will not attach if the conduct cannot reasonably be said to be part of the investigation or other preparation for proceedings.
When the basic immunity rule has been challenged, the courts have sought to provide a proximity test of one sort or another, relating to proximity as a witness to court proceedings. The proximity test may in practice be reduced or supported by the necessity test (and the function test). In the context of the present case, one would look no further than the immunity of witnesses. It is plain that those in question are either witnesses or potential witnesses. As to police officers, the appropriate test is one that enables boundaries to be drawn.
As to the ambit of the immunity where there has been conspiracy from the outset, the test is whether the conduct can fairly be said to be part of the investigative process. If the evidence shows that the conduct effectively initiated the process, it would be difficult to justify immunity on the ground of public interest. There is, however, in the present case no indication that that is the situation, and in practice there is no need to interfere with Drake J’s formulation of the test in Evans v London Hospital Medical College (University of London)  1 WLR 184 since if there is onlyconspiracy there is no damage. If the conspiracy is put into effect so as to initiate or prolong the prosecution it will amount to malicious prosecution.
The immunity rule as it applies to witnesses has developed incrementally to meet the emerging problems in an increasingly complex society. Whether it has developed appropriately should be measured against the test proposed by Lord Wilberforce in Roy v Prior  AC 470, 480 which suggests a dynamic approach to immunity with the law evolving to meet the changing needs of society and the interests of justice. It is arguable that nowadays the more important of the two public policies justifying it is that of providing protection to those who are or become involved in litigation or possible litigation, whether voluntarily or under compulsion: see Munster v Lamb(1883) 11 QBD 588, 607. This protection has become an increasingly necessary object of public policy. It may be that in other areas of the immunity rule, for example, the immunity of barristers where the more important of the two public policies may be the avoidance of collateral attack, the balance of public need has altered so that a more restricted immunity is appropriate. Such considerations should not affect the rule as it applies in the present context. It may be that one rule cannot be devised that would satisfactorily meet the public interest requirements of each situation, The Supreme Court of the United States, against a background of positive statutory rights, has sought to develop a common test for immunity based on the conduct being “intimately associated with the judicial phase of the criminal process”: see Imbler v Pachtman (1976) 424 US 409, 430. This is similar to the test proposed in Saif Ali v Sydney Mitchell & Co  AC 198, 215 for advocates based on intimate connection with the conduct of the case in court. Such a test may be appropriate for an advocate qua advocate and also for the corrupt investigator, assuming that he is not in any event exposed to an action for malicious prosecution, but it substantially ignores the first of the public interests identified by Fry LJ in Munster v Lamb 11 QBD 588, the importance of which has become demonstrably more significant.
Over the years, many attempts have been made to circumvent the immunity rule: see Marrinan v Vibart  1 QB 528, 538-539. The “emergent” tort of malicious prosecution has provided a new opportunity. The real reason lying behind this appeal is that the plaintiffs are unable to maintain a claim for malicious prosecution. If they were to be successful in evading the immunity rule, it would effectively mean the end of malicious prosecution: see Gibbs v Rea  AC 786, 802b; Gizzonio v Chief Constable of Derbyshire The Times, 29 April 1998; Court of Appeal (Civil Division) Transcript No 559 of 1998 and McDonagh v Comr of Police of the Metropolis The Times, 28 December 1989. Sir Richard Scott V-C in Bennett v Comr of Police of the Metropolis 10 Admin LR 245 was dealing with a factual situation wholly different from the present. Nothing that he said casts doubt on the immunity rule as it relates to witnesses and others involved in the investigation and preparation for trial.
Misfeasance in public office should not constitute an exception to the immunity rule. To grant a novel ground of action circumventing the restrictions imposed by the requirements of malicious prosecution would, at this stage of its historical development, probably require legislation. In cases where the trial process has been completed with a finding adverse to the claimant, to permit litigation to proceed where in all probability the only damage that he could claim would be that flowing from his allegedly wrongful conviction would breach the declared basis of public policy and raise the same problems as those identified by Lord Diplock in Saif Ali v Sydney Mitchell & Co Ltd  AC 198, 222-223. The reality is that if there is no need to prove absence of reasonable and probable cause few litigants would choose malicious prosecution when misfeasance was available. Immunity provides the reason why malicious prosecution is the tort and misfeasance is not. [Reference was also made to Hunter v Chief Constable of the West Midlands Police  AC 529 and Rondel v Worsley  1 AC 191.]
If the dictum of Sir Richard Scott V-C is to be taken as making any inroad upon the immunity rule, his reasoning ignores the twin justifications of public policy. Attempts at circumventing the immunity rule have at their heart the object of altering the existing balance that exists between two competing public interests. The tort of malicious prosecution has evolved so as to satisfy these competing interests by placing the burden of proving malice and absence of reasonable cause on the claimant. The substitution of misfeasance in public office and/or conspiracy to injure would radically alter that evolved balance: see Silcott v Comr of Police of the Metropolis 8 Admin LR 633, 639-640. The torts of malicious abuse of process will ordinarily provide a sufficient means of providing redress to an aggrieved claimant. Few deserving claimants will find the route barred as it is in the present case. Where such remedies are not available, the concurrent public interest in deterring wrongdoing by investigators and others is satisfied through the criminal and, in the case of the police, disciplinary sanctions for perjury and conspiracy to pervert the course of public justice.
Janner following. Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969) is not applicable in the present context. The plaintiffs have not been denied a right to a fair and public hearing within a reasonable time by an independent and impartial tribunal. Moreover, by virtue of the immunity rule, they cannot rely on any substantive right in domestic law to sue the police in respect of their alleged acts of misfeasance in a public office and conspiracy to injure.
Alternatively, article 6(1) has not been breached, for two reasons: the immunity rule has legitimate public policy aims; and its application is proportionate to the loss of access. Applying the relevant principles stated in Fayed v United Kingdom (1994) 18 EHRR 393, 429, para 65 and approved in Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHHR 249, 271 to any alleged breach of article 6, it is in the general interest of the public to apply the immunity rule. The rule as extended meets the legitimate aims of enabling and encouraging persons to assist in the course of justice without fear of exposing themselves to litigation and avoiding re-litigation. An individual’s right of access to the courts is not barred entirely; he has the right to claim damages for, e g malicious prosecution or malicious process where a defendant has maliciously abused the process of the court. No balancing of the importance of the legitimate aims of the immunity rule against any loss of access can take place in the context of this absolute immunity without identifying the first of the legitimate aims, namely, that the administration of justice should not be impeded or hampered: the integrity of the judicial process, which refers merely to such re-litigation and hampering of justice as is sought to avoid. There is no blanket immunity in this case: compare Osman v United Kingdom 29 EHRR 245. Claims can be brought where conduct falls outside the investigative process. The public is protected against dishonest or corrupt police officers by prosecution for perjury or conspiracy. [Reference was also made to Hill v Chief Constable of West Yorkshire AC 53; Elguzouli-Daf v Comr of Police of the Metropolis  QB 335 and Ashingdane v United Kingdom (1985) 7 EHRR 528.]
Osman v United Kingdom 29 EHRR 245 (see the judgment of the European Court of Human Rights, pp 314, 315 and 316, paras 143, 146 and150) is distinguishable. The court concluded that, in the circumstances of that case, the application of the exclusionary rule, founded on a general immunity of the police from actions for negligence when carrying out their functions of controlling and keeping down the incidence of crime (see Hill’s case  AC 53), amounted to a blanket immunity and as such a disproportionate restriction on the applicant’s right of access to a court; there was accordingly a violation of article 6(1). In so far as Osman’s case 29 EHRR 245 is relevant in the present context the principles enunciated therein have not been breached because the immunity in this case is not a blanket immunity. The plaintiffs could have had access to the court had their prosecution been without reasonable and probable cause. The refusal to consider their action was not, therefore, an obvious denial of justice. Osman’s case, by which the defendant is not bound, has been the subject of strong, and justified, judicial and academic criticism: see per Lord Browne-Wilkinson in Barrett v Enfield London Borough Council  3 WLR 79; Lord Hoffmann, “Human Rights and the House of Lords” (1999) 62 MLR 159, 163-164 and Tony Weir, “Down Hill-All The Way?”  CLJ 4.
In the circumstances, the exclusionary rule did not constitute a disproportionate restriction on the right of access to a court taking into account the torts based on malicious process in respect of which the police have no such immunity.
Newman QC in reply. The proper question is not whether there was reasonable and probable cause but whether the action being impugned was sufficiently proximate (the United States Supreme Court’s formulation) to the judicial phase of the trial process. The defendants’ test must be too wide, otherwise it would apply where a police officer drives negligently in the course of an investigation. For the action to be sufficiently proximate to the judicial process, the process must have started. Even as regards the judicial process, the immunity of magistrates has historically been limited to when acting within their jurisdiction or in good faith: see In re McC (A Minor)  AC 528; Stone’s Justices’ Manual, para 1-3760; section 52 of the Justices of the Peace Act and Gatley on Libel and Slander, 9th ed (1998), ch 26. “In the investigative process” must mean acting within his powers. [Reference was made to Buckley v Fitzsimmons 113 S Ct 2606, 2617 and the Prosecution of Offences Act 1985.]
As to malicious prosecution, the plaintiff can only sue the instigator of the prosecution, not everyone involved: see Clerk & Lindsell on Torts, 17th ed (1995), paras 15-05, 15-07, pp 741 and 742-743; Three Rivers District Council v Governor and Company of the Bank of England (No 3)  3 All ER 558, 582, 584 and Hunter v Chief Constable of the West Midlands Police AC 529.
Osman v United Kingdom 29 EHRR 245 is not limited to the Hill v Chief Constable of West Yorkshire  AC 53 situation. The observations of the European Court of Human Rights should not be limited to misfeasance.
Their Lordships took time for consideration.
PANEL: Lord Hope of Craighead, Lord Mackay of Clashfern, Lord Cooke of Thorndon, Lord Clyde and Lord Hutton
JUDGMENTBY-1: LORD HOPE OF CRAIGHEAD
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 publicpolicy, 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) LR 8 QB 255, 264, per Kelly CB. 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 plaintiffs 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, Auld and Schiemann LJJ). 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 plaintiffs 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 Comr of Police of the Metropolis (1996) 8 Admin LR 633, 637, Simon Brown LJ said:
“(2) The public policy purposes underlying the immunity are essentially twofold. First, per Fry LJ in Munster v Lamb (1883) 11 QBD 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  AC 470, 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. LordWilberforce made this clear, in Roy v Prior  AC 470, 480, when he said 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 plaintiffs’ allegations relate to things done outside the courtroom, so it is the first policy reason only which is relevant to this case. In the Court of Appeal Auld LJ 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 Director of the Serious Fraud Office  2 AC 177, 208, 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 LC said in Watson v M’Ewan; Watson v Jones AC 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 (University of London)  1 WLR 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  2 AC 633, 755g, per Lord Browne-Wilkinson. In Taylor v Director of the Serious Fraud Office  2 AC 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  1 QB 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 Comr of Police of the Metropolis 8 Admin LR 633, 640 Simon Brown LJ 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 (University of London)  1 WLR 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 thatmisses 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 LJ 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 (University of London)  1 WLR 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  AC 53 and Elguzouli-Daf v Comr of Police of the Metropolis QB 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 Comr of Police of the Metropolis (1997) 10 Admin LR 245, 252d-e that the immunity extends to statements made or agreed to be made out of court “if these were clearly anddirectly 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.
JUDGMENTBY-2: LORD MACKAY OF CLASHFERN
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  AC 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 Director of the Serious Fraud Office 2 AC 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 p 214:
“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 p 215 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-trialdisclosure. 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 defendant 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)  1 WLR 184. After referring to earlier authorities Drake J said, at pp 191-192:
“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 anycriminal 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 Comr of Police of the Metropolis 8 Admin LR 633, 637 Simon Brown LJ quotes from the judgment of Drake J in the Evans case  1 WLR 184, 192c-d 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. Simon Brown LJ goes on, at p 640:
“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 inquiry, 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 LJ’s judgment applies the judgment of Drake J more widely than its context in the Evans case warrants. The essential character of the immunity as described in the passages I have quoted from Lord Hoffmann in Taylor v Director of the Serious Fraud Office  2 AC 177, 214, 215 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)  AC 528 requires to be kept in view and particularly I should refer to the speech of Lord Bridge of Harwich, at pp 540-541.
JUDGMENTBY-3: LORD COOKE OF THORNDON
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  AC 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 (University of London)  1 WLR 184, 192, on which the defendant 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 LJ in Munster v Lamb (1883) 11 QBD 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 LJ in Silcott v Comr of Police of the Metropolis 8 Admin LR 633, 640, which was cited and followed by Auld LJ in the judgment now under appeal:
“To Lord Williams’s 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 1 NZLR 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.
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’s case, 8 Admin LR 633 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  1 QB 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 thatwitness 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 (University of London)  1 WLR 184 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 Director of the Serious Fraud Office  2 AC 177, 215 Lord Hoffmann thought that Evans’s case  1 WLR 184 might nowadays have been decided on the ground that the defendants owed the plaintiff no duty of care. That is how Evans’s case happens to have been seen in New Zealand: South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd  2 NZLR 282, 302-303.
Taylor’s case  2 AC 177 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 pp 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 v Comr of Police of the Metropolis 8 Admin LR 633, takes one from the field of freedom of speech into different territory. I do not think that Taylor’s case  2 AC 177 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’s case 8 Admin LR 633 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 (1976) 424 US 409 where the United States 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 prosecutorknowingly 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 (1993) 113 S Ct 2606. 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 Governor and Company of the Bank of England (No 3)  2 WLR 1220. The misconduct alleged in Buckley v Fitzsimmons 113 S Ct 2606 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(1999) 167 F 3d 995 (United States Court of Appeals, Sixth Circuit). The defendants were a deputy sheriff and other law enforcement officials. The court said, at p 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 case law. 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 EHRR 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 defendant 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. Thisargument 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.
JUDGMENTBY-4: LORD CLYDE
LORD CLYDE: My Lords, in 1993 the plaintiffs 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 plaintiffs 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 it was an attempt to side-step the formal requirements of that form 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  1 QB 528 Sellers LJ stated, at p 535:
“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) 64 CLR 130, 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, andshould not readily be extended. It should only be allowed where it is necessary to do so. As McCarthy P observed in Rees v Sinclair  1 NZLR 180, 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  AC 470, 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 for granting an immunity to witnesses from civil process. They were expressed by Lord Wilberforce in Roy v Prior in these terms, at p 480:
“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  1 QB 234, 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 rehearing 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 retried. 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 AC 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  AC 470, 480), or, to quote Crompton J in Henderson v Broomhead (1859) 4 H & N 569, 579, “for words spoken or written in the course of any judicial proceeding”. But the immunity would be worthless if it were confined to actual giving of evidence in the court. Thus, as was recognised in Watson v M’Ewan AC 480, 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 LC recognised in Watson v M’Ewan, 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 v London Hospital Medical College (University of London)  1 WLR 184, 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 was, at p 192:
“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 apossible crime with a view to 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 424 US 409 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 113 SCt 2606 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 v London Hospital Medical College (University of London)  1 WLR 184 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  2 AC 633, 755 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 inpursuance of a statutory duty cannot be made the subject of subsequent claims.”
I do not understand that the views expressed in Taylor v Director of the Serious Fraud Office  2 AC 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 circumvention of the immunity he or she may enjoy within the court. As Devlin LJ observed in Lincoln v Daniels  1 QB 237, 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, 167 F 3d 995 Circuit Judge Nathaniel R Jones stated, at pp 1003-1004:
“The doctrine of absolute immunity for testimony is a shield to ensure that those individuals intimately involved in the judicial process 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 that evidence.”
These observations seem to me to be in point in the present appeal.
The only case which counsel for the plaintiffs identified as being contrary to his submission was that of Silcott v Comr of Police of the Metropolis 8 Admin LR 633. In my view the approach there taken to the scope of theimmunity 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 plaintiffs 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 plaintiffs 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.
JUDGMENTBY-5: LORD HUTTON
LORD HUTTON: My Lords, the work done by a police officer prior to the commencement of a criminal prosecution may relate to the investigation of a suspected crime, to the questioning of a suspect, to the obtaining of witness statements from prospective witnesses and to the preparation of a witness statement relating to the evidence which he himself may give at theprospective trial. The issue which arises on this appeal concerns the width of the absolute immunity from civil action granted to the police officer in respect of such work.
The plaintiffs Head, Lamont and Clark together with David Stanley Docker (now deceased who sues by his personal representative) were indicted on counts alleging conspiracy to import cannabis resin. The plaintiffs Lamont, Rhodes, Clark and Docker were indicted on a count alleging conspiracy to forge American Express travellers’ cheques. The plaintiffs were charged following an undercover operation conducted by members of No 4 Regional Crime Squad. The undercover operation involved the use of two undercover police officers and a police informant named Titley. The arrest of the plaintiffs took place between 16 May and 15 July 1992. All the plaintiffs were remanded in custody, and some remained in custody until the trial commenced in August 1993 in the Crown Court at Wolverhampton before Judge Gibbs QC. The trial was beset with a number of problems, many of which stemmed from the fact that the defence were dissatisfied with the disclosure made by the prosecution. This resulted in the trial judge making orders for disclosure which, regrettably, were not complied with. The fault for this lay with the police and was not due to any default by prosecuting counsel or the Crown Prosecution Service. In addition, the informant Titley, who was to be called as a prosecution witness, proved to be elusive and Detective Constable Ledbrook, a police officer central to the prosecution and to the allegations by the plaintiffs of wrongdoing by the police, was unavailable for attendance at court for medical reasons. On 28 September 1993 the trial judge gave a lengthy and careful ruling in which he held that the police had been significantly at fault in the disclosure process and he directed that the charges be permanently stayed on the ground of abuse of process and the plaintiffs were accordingly discharged.
The plaintiffs then commenced an action against the Chief Constable of the West Midlands Police claiming damages for conspiracy to injure and the tort of misfeasance in public office committed by police officers under his direction and control. No claim was brought for malicious prosecution. A statement of claim was issued and served on 24 March 1995 and an amended statement of claim was served on 6 October 1995. The Chief Constable’s defence was served on 30 January 1996. It is agreed between the parties that the plaintiffs’ allegations can be summarised as follows. (1) Two police officers, Detective Constable Ledbrook and/or Detective Chief Inspector Lowbridge, together with a police informant (Titley), fabricated statements against the plaintiffs. (2) Two police officers (Ledbrook and Lowbridge) conspired to cause the plaintiffs to be charged with offences which they knew or believed to be false. (3) Police officers (Ledbrook and Lowbridge) knowingly instructed undercover agents to breach police instructions of operation, in particular breaching the instruction that “a police officer must not act as an agent provocateur”. (4) DC Ledbrook acting as the handler for the police informer knowingly allowed and/or incited the informer to fabricate evidence. (5) Two police officers (Ledbrook and Lowbridge) manipulated the police informer to prevent the plaintiffs having a fair trial. In particular, refusing to comply with the judge’s directions on pre-trial disclosure. (6) DC Ledbrook covertly shared in the proceeds of reward moneys given to the police informer. (7) Police officers (Ledbrook,Lowbridge and others) used Titley as an agent provocateur and/or entrapper in an attempt to implicate the plaintiffs. (8) Ledbrook and/or Lowbridge acted in breach of codes of conduct and/or standing orders and/or circulars and negotiated rewards on behalf of Titley from American Express UK Ltd. (9) Lowbridge and/or Ledbrook concealed from the plaintiffs during the course of their criminal trial the fact that Titley attended the No 4 Regional Crime Squad Christmas party. (10) Ledbrook and/or Lowbridge together with Titley engaged in similar conspiracies to injure other persons in strikingly similar circumstances.
The Chief Constable applied to strike out the statement of claim and on 27 September 1996 Maurice Kay J, following the principles stated by the Court of Appeal in Silcott v Comr of Police of the Metropolis 8 Admin LR 633, struck out the amended statement of claim and dismissed the action.
The Court of Appeal dismissed the plaintiffs’ appeal in a judgment delivered by Auld LJ In his judgment the Lord Justice considered the immunity given to a witness in court proceedings and cited a portion of the judgment of Drake J in Evans v London Hospital Medical College (University of London)  1 WLR 184, 192:
“It is for these reasons that I think that the words used by the Court of Appeal in Marrinan v Vibart  1 QB 528, that immunity protects witnesses in their evidence before the court and in the preparation of the evidence which is to be given, cover and were intended to cover the collection and analysis of material relevant to the offence or possible offence under investigation, and were not intended merely to cover the preparation of the witness’s formal statement or proof of evidence … 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.”
Auld LJ then observed that this test had been adopted by the Court of Appeal in Silcott’s case 8 Admin LR 633. The immunity which the Court of Appeal held the Chief Constable in this case was entitled to claim on behalf of the officers against whom the allegations of conspiracy and misfeasance were made is an immunity derived from the protection given to a witness in respect of his statements in court. It is therefore necessary to consider the basis of this immunity and the manner in which it has been extended.
The core of the immunity
The rule that a party or witness has immunity in respect of what he says and does in court has been established for centuries. In his submissions to the House Mr Newman cited the judgment of the King’s Bench in 1585 in Cutler v Dixon 4 Co Rep 14b:
“It was adjudged, that if one exhibits articles to justices of peace against a certain person, containing divers great abuses and misdemeanors, not only concerning the petitioners themselves, but many others, and all this to the intent that he should be bound to his good behaviour; in this case the party accused shall not have for any matter contained in such articles any action upon the case, for they have pursuedthe ordinary course of justice in such case: and if actions should be permitted in such cases, those who have just cause for complaint would not dare to complain for fear of infinite vexation.”
The rule was succinctly stated by Kelly CB in Dawkins v Lord Rokeby LR 8 QB 255, 264:
“no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice.”
As Auld LJ observed in the Court of Appeal the plaintiff’s claim in that case related to the defendant’s oral evidence before a military court of inquiry and also to a written statement containing in substance a repetition of that evidence which the defendant handed in to the court of inquiry immediately after he had given his evidence, and the reference to “anything … done” was probably intended to cover the submission of a written statement to a court. The reason for the rule is grounded in public policy: it is to protect a witness who has given evidence in good faith in court from being harassed and vexed by an action for defamation brought against him in respect of the words which he has spoken in the witness box. If this protection were not given persons required to give evidence in other cases might be deterred from doing so by the fear of an action for defamation. And in order to shield honest witnesses from the vexation of having to defend actions against them and to rebut an allegation that they were actuated by malice the courts have decided that it is necessary to grant absolute immunity to witnesses in respect of their words in court even though this means that the shield covers the malicious and dishonest witness as well as the honest one.
The extension of the immunity to the proof of the witness’s evidence given before trial
In order to enable a case to be prepared for hearing, a witness will before trial almost invariably give a statement of the evidence which he will give in court to the solicitor for the party who proposes to call him. It is apparent that the protection given to a witness in respect of his words in the witness box would be easily outflanked if the immunity given in respect of the words spoken in court did not also cover the words spoken by a witness or a prospective witness in giving his proof of evidence before the commencement of the trial. It was for this reason that in Watson v M’Ewan  AC 480 this House held that the privilege which protects a witness from an action for defamation in respect of his evidence in the witness box also protects him in respect of a statement made to a solicitor in preparing his proof of evidence for trial, and the Earl of Halsbury LC said, at p 487:
“It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice-namely, the preliminary examination of witnesses to find out what they can prove.”
The extension of the immunity to protect witnesses against an action alleging a conspiracy by them to make false statements in court
The protection given to a witness against an action for defamation in respect of the words which he speaks in court would also be outflanked if the immunity did not operate where an action is brought against two or more witnesses or prospective witnesses alleging a conspiracy by them to make false statements in court. In Marrinan v Vibart  1 QB 528, two police officers gave evidence on a criminal prosecution against other persons that the plaintiff had behaved improperly by obstructing a police officer in the execution of his duty and subsequently gave similar evidence at an inquiry before the Benchers of Lincoln’s Inn into the conduct of the plaintiff. The plaintiff brought an action against the police officers alleging that they, together with another person, had conspired to injure him by making false and defamatory statements about him. The Court of Appeal held that the immunity given to a witness was not confined to barring an action for defamation but extended to bar an action alleging conspiracy to make false statements in court. The decision of the High Court of Australia in Cabassi v Vila 64 CLR 130 is to the same effect, Starke J stating, at p 141:
“But it does not matter whether the action is framed as an action for defamation or as an action analogous to an action for malicious prosecution or for deceit or, as in this instance, for combining or conspiring together for the purpose of injuring another; the rule of law is that no action lies against witnesses in respect of evidence prepared (Watson v M’Ewan), given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice.”
The extension of the immunity to the preparation of evidence
Whilst it is clear that immunity applies to a statement which is prepared before the trial setting out what the witness intends to say in court, more difficult questions arise as to whether every act which could be regarded as the preparation of evidence comes within the ambit of the immunity.
In Evans v London Hospital Medical College (University of London)  1 WLR 184, the defendants employed by the first defendant carried out a post mortem investigation on the body of the plaintiff’s son. The investigation found that certain organs in the body contained concentrations of morphine and this information was given to the police and/or the Director of Public Prosecutions in the form of statements. In consequence the plaintiff was charged with the murder of her son by morphine poisoning. After further investigation by toxicologists on her behalf the prosecution offered no evidence at her trial and she was acquitted. She brought an action claiming damages for negligence against the defendants in which she alleged that the defendants had been negligent (inter alia) in allowing the organs removed from her son’s body to become contaminated with morphine and in failing to appreciate that the high concentration of morphine revealed by analysis was unlikely to have existed in the child while he was still alive. Drake J held that the defendants were entitled to absolute immunity and upheld the decision of a master dismissing the action.
In Taylor v Director of the Serious Fraud Office 2 AC 177 an investigator employed by the Serious Fraud Office was investigating a fraud. In the course of the investigation she made observations about the two plaintiffs which they claimed were defamatory of them, and one of the persons whom she interviewed also made observations to her which the plaintiffs claimed were defamatory. This House held that the absolute immunity from suit which applied to witnesses in respect of statements made in court extended also to out-of-court statements which could fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution. Lord Hoffmann stated, at pp 214-215:
“It would be an incoherent rule which gave a potential witness immunity in respect of the statements which he made to an investigator but offered no similar immunity to the investigator if he passed that information to a colleague engaged in the investigation or put it to another potential witness. 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. I therefore agree with the test proposed by Drake J in Evans v London Hospital Medical College (University of London)  1 WLR 184, 192: ‘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 a possible prosecution in respect of the matter being investigated.’ This formulation excludes statements which are wholly extraneous to the investigation-irrelevant and gratuitous libels-but applies equally to statements made by persons assisting the inquiry to investigators and by investigators to those persons or to each other.”
In Taylor’s case the House was considering the test stated by Drake J in relation to statements and not in relation to conduct and no question arose as to the fabrication of evidence or the planting of evidence; the issue was confined to whether communications between investigators and persons assisting in the inquiry which was conducted with a view to a possible prosecution were covered by absolute immunity.
In Silcott v Comr of Police of the Metropolis 8 Admin LR 633 the plaintiff alleged that two detective officers had fabricated notes purporting to be a contemporaneous record of admissions to a murder which he had made to them in the course of an interview. At the trial of the plaintiff for the murder one of the two police officers was the only witness against the plaintiff. He produced the notes and said in evidence that the other police officer had written the notes and that he had countersigned them. He did not say that the plaintiff himself had signed the notes. It is therefore relevant to observe that the notes themselves did not constitute evidence but that they were used by the police officer in the normal way to refresh his memory in the witness box. In his action the plaintiff pleaded three causes of action: (1) conspiracy to pervert the administration of public justice; (2) misfeasance in a public office; and (3) malicious prosecution. A master struck out the first two causes of action and his order was upheld by the High Court and the Court of Appeal.
In his judgment in the Court of Appeal Simon Brown LJ, after citing the authorities relating to the absolute immunity of a witness in court proceedings and the policy considerations underlying it, stated, at p 640:
“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 [of the Criminal Appeal Act 1968] inquiry, 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 v London Hospital Medical College (University of London)  1 WLR 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.”
Auld LJ followed and endorsed this reasoning in the present case and stated:
“If the immunity 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. Although the conduct in question must, to qualify for immunity, be of such investigatory or preparatory nature, it does not cease to be so, or the line does not move, according to the seriousness of the allegation made about it. Thus, as Simon Brown LJ observed in Silcott v Comr of Police of the Metropolis 8 Admin LR 633, the ‘planting’ of evidence or ‘fabrication’ of evidence with a view to its presentation in court is no more heinous or less entitled to protection than the giving of the false evidence based on that conduct. The evil of the conduct alleged is irrelevant; it is assumed to be true for the purpose of the rule-all for the greater good of the justice system, not to protect any individual alleged wrongdoer.”
My Lords, there are passages in the authorities which support the reasoning of Simon Brown and Auld LJJ In Marrinan v Vibart  1 QB 528, although the plaintiff’s allegation of conspiracy related to the preparation of statements of the actual evidence which the police officers would give, Sellers LJ commenced his judgment with the statement, at p 533:
“Those who take part in the administration of justice (and it is one of the important functions of police officers to obtain and bring evidence before the court) must be free from the fear of civil proceedings.”
And in Evans v London Hospital Medical College (University of London)  1 WLR 184 (in a passage cited by Neill LJ in Silcott v Comr of Police of the Metropolis 8 Admin LR 633, 642) Drake J stated, at pp 191-192:
“… 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.”
Furthermore, the authorities make it clear, as both Simon Brown and Auld LJJ observe, that where the immunity exists it is given to those who deliberately and maliciously make false statements; the immunity is not lost because of the wickedness of the person who claims immunity. There is also logical force in the reasoning of the two Lords Justices. If the immunity is given to a police officer who falsely says in the witness box or in his witness statement that when he pursued the accused from the scene of a robbery he saw him carrying a knife which the accused threw away in the course of the chase and which was not recovered, why should immunity not be given to a police officer who actually plants a knife on a man whom he has caught after a pursuit from the scene of a robbery and which is found on the accused by an honest police officer who subsequently searches him? If an honest police officer who gives truthful evidence in the witness box that he pursued the accused from the scene of a crime is protected by immunity against a vexatious action, why should an honest officer who gives truthful evidence that he found a knife on the accused not be protected by immunity from a vexatious action alleging that he and another police officer conspired to plant the knife?
However, notwithstanding the logical force of the view taken by the Court of Appeal in Silcott v Commissioner of Police of the Metropolis 8 Admin LR 633 and in the present case, there are considerations of weight which point to a different conclusion. The predominant requirement of public policy is that those who suffer a wrong should have a right to a remedy, and the case for granting an immunity which restricts that right must be clearly made out. In Mann v O’Neill (1997) 71 ALJR 903 the judgment in the High Court of Australia of Brennan CJ, Dawson, Toohey and Gaudron JJ states, at p 907: “the general rule is that the extension of absolute privilege is ‘viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated’.” And in Roy v Prior  AC 470, where this House held that a defendant was not entitled to the absolute immunity which he claimed, Lord Wilberforce stated, 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.”
Moreover there is a danger in extending the immunity given to a witness in court proceedings merely by analogy. In Mann v O’Neill 71 ALJR 903, 912 McHugh J warned against:
“the temptation to recognise the availability of the defence for new factual circumstances simply because they are closely analogous to an existing category (or cases within an existing category) without examining the case for recognition in light of the underlying rationale for the defence.”
And in Lincoln v Daniels  1 QB 237, where the defendant claimed absolute immunity in respect of communications sent by him to the Bar Council alleging professional misconduct by the plaintiff, a Queen’s Counsel, Devlin LJ stated, at p 263:
“It is not at all easy to determine the scope and extent of the principle in Watson v M’Ewan  AC 480. 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. It is true that it is not absolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for a litigant to engage a solicitor. The sense of Lord Halsbury’s speech is that the extension of the privilege to proofs and precognition is practically necessary for the administration of justice; without it, in his view, no witness could be called. I do not think that the same degree of necessity can be said to attach to the functions of the Bar Council in relation to the Inns of Court. It is a convenience to the public to have a central body to deal with, but that is as high as it can be put. In my judgment the defence of absolute privilege fails.”
The underlying rationale of the immunity given to a witness is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court. This immunity has been extended, as I have described, to proofs of evidence and to prevent witnesses being sued for conspiracy to give false evidence. But the immunity in essence relates to the giving of evidence. There is, in my opinion, a distinction in principle between what a witness says in court (or what in a proof of evidence a prospective witness states he will say in court) and the fabrication of evidence, such as the forging of a suspect’s signature to a confession or a police officer writing down in his notebook words which a suspect did not say or a police officer planting a brick or drugs on a suspect. In practice the distinction may appear to be a fine one, as, for example, between the police officer who does not claim to have made a note, but falsely says in the witness box that the suspect made a verbal confession to him (for which statement the police officer has immunity), and a police officer who, to support the evidence he will give in court, fabricates a note containing an admission which the suspect never made. But I consider that the distinction is a real one and that the first example comes within the proper ambit of the immunity and the other does not.
A further consideration is that there are many situations in which false and vexatious accusations may be made against police officers but where the law does not give them absolute immunity when they are sued. These situations were referred to by Sir Richard Scott V-C in Bennett v Comr ofPolice of the Metropolis 10 Admin LR 245, 254, in a passage which it is desirable to set out in full:
“Counsel have argued that the established immunity from action based on evidence given in court proceedings and from a negligence action against the police or the CPS [Crown Prosecution Service] in regard to the manner of discharge of their respective duties are all part of a general immunity that, for reasons of public policy, protects police and prosecutors from any action in tort based upon their discharge of their respective duties. This is, in my judgment, a wholly unacceptable proposition for a number of reasons. First, as Mr Newman for the plaintiff pointed out, the only connection between the immunity from suit based on evidence given in court proceedings and the freedom of the police and CPS from being burdened by a general duty of care in the conduct of their duties is that those rules are attributable to the requirements of public policy. But public policy has many manifestations and underlies very many rules of law. To argue that because for public policy reasons a blanket immunity from action is given in respect of evidence in court proceedings and because for public policy reasons the police and the CPS are relieved of a general duty of care to those who may be affected by the manner in which they discharge their duties it should therefore follow that the police and the CPS are entitled to a blanket immunity from suit arising out of the manner in which they discharge their duties is not, to my mind, respectable jurisprudence. On the contrary, it is clear law that neither the police nor the CPS are entitled to a blanket immunity against tort actions arising out of the manner in which they discharge their duties. Actions for malicious arrest or malicious prosecution can be brought. Actions against the police for assault, in using excessive force in effecting an arrest or in interrogating a suspect, can be brought. Why should an action for misfeasance in public office not be brought? I can see no reason why not. The police and the CPS, like everyone else, are subject in the discharge of their duties to the rule of law. There is no public interest that requires them to be afforded immunity against actions based on malicious or knowing abuses of their powers.”
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 bedeterred 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 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 Director of the Serious Fraud Office 2 AC 177, this House approved the test stated by Drake J in Evans v London Hospital Medical College (University of London)  1 WLR 184, although Lord Hoffmann expressed no view on the actual outcome of the case, stating  2 AC 177, 215:
“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)  1 WLR 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 tocover 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 v Comr of Police of the Metropolis 8 Admin LR 633 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 10 allegations summarised by the parties constitute causes of action in tort against the police.
Appeal allowed with costs.
Solicitors: Warren & Allen, Ilkeston; Sharpe Pritchard for Solicitor, West Midlands Police Authority, Birmingham.
(c)2001 The Incorporated Council of Law Reporting for England & Wales