Criminal evidence and procedure – Evidence – Hearsay – Expert evidence – Admissibility: R v Hodges and another COURT OF APPEAL (CRIMINAL DIVISION)(United Kingdom)

[2003] EWCA Crim 290, [2003] Crim LR 472, (Transcript: Smith Bernal)

R v Hodges and another
COURT OF APPEAL (CRIMINAL DIVISION)
[2003] EWCA Crim 290, [2003] Crim LR 472, (Transcript: Smith Bernal)
HEARING-DATES: 22 JANUARY 2003
22 JANUARY 2003
CATCHWORDS:
Criminal evidence and procedure – Evidence – Hearsay – Expert evidence – Admissibility.

COUNSEL:
R Grey for the First Appellant; L Wilding for the Second Appellant

S Foster for the Respondent

PANEL: ROSE LJ (V-P), AIKENS, ROYCE JJ

JUDGMENTBY-1: ROSE LJ (V-P)

JUDGMENT-1:
ROSE LJ (V-P) (reading the judgment of the court): [1] On 31 January 2002, after a trial which, astonishingly, lasted 18 days, at Portsmouth Crown Court, these appellants were convicted of conspiracy to supply heroin to others, on count 1 in the indictment. Walker also pleaded guilty to possession of cannabis and to possession of heroin, on counts 2 and 3. On 1 March 2002, they were sentenced by Mr Recorder Mather, by whom the trial had been conducted, in the case of Hodges, to 5 years and in the case of Walker to 6 years’ imprisonment on count 1. Walker was also sentenced on count 2 to 1 weeks’ imprisonment and on count 3, to 2 months’ imprisonment concurrently. They now appeal against conviction by leave of the Single Judge.

[2] The appellants were arrested together in Portsmouth on 6 September 2000, after observations had been kept by the police on Walker’s address in Outram Road, Southsea, on at least nine days between the middle of August and 6 September. The appellants had been observed outside Walker’s house and on nearby streets. The effect of the observation evidence was that, either separately or, sometimes, together, the appellants had had numerous short meetings with a variety of people. Those meetings involved hand contact between the appellants and others which was not, according to the police officers, either in the form of handshakes or, as was suggested, in the form of high, medium or low fives. There was no evidence from the officers that they actually saw drugs being passed.

[3] When Walker was arrested, he had £ 350 on him and a bag containing heroin. He claimed that there were 10 grammes inside. In fact there were 14 grammes, that is half an ounce. He said that it was for his personal use.

[4] Hodges had £ 80 on him. When Walker’s house was searched, there was found a set of scales, with traces of heroin on them, some pieces of plastic bag, metal foil and about one cigarette’s worth of cannabis.

[5] At a first trial the judge, sadly, suddenly died. So the appellants were convicted on a second trial.

[6] The prosecution case against the appellants was based on the manual contacts to which we have referred, the drugs and money found on Walker, expert evidence from Detective Constable Stevens, to which we shall return and, so far as Hodge was concerned, statements which he had made in the course of interview.

[7] The defence of both appellants was that they were not dealers. The manual contacts were merely handshakes or gestures of friendship to acquaintances. It was said on their behalf that the drugs found on Walker were for the personal use of both Walker and Hughes, over the coming week or so. It was said that the expert evidence of Detective Constable Stevens was without foundation, and evidence was given by the defendants which, in part at least, contradicted what Detective Constable Stevens said.

[8] On the tenth day of the trial, during the evidence from the witness-box of Hodge, one of the members of the jury apparently fell asleep. In consequence, the following day, she was discharged from the jury. There was a report of that discharge in a local evening newspaper and, on the day after that, there were further reports of that in national newspapers. By reason of these events, applications were made by the defence, first, that the whole of the jury should be discharged and not just the one juror. Next, in the light of the local newspapers report, that the jury should be discharged. And, finally, following the items in the national newspapers that the whole jury should be discharged. The learned Recorder, as is implicit in the history already recounted, rejected those submissions.

[9] There were two main issues of fact for the jury. First: were drugs being transferred during the manual contacts observed by the police? Secondly: were the drugs found on Walker merely for his and Hodges’ personal use, or were they intended for commercial distribution?

[10] This appeal raises two grounds. First, on behalf of Hodges, Mr Grey, in submissions adopted by Miss Wilding on behalf of Walker, submits that the evidence of Detective Constable Stevens was wrongly admitted by the Recorder, in so far as it dealt with three different matters: first, as to what was the usual method of supplying heroin, namely, in a £ 20 bag; secondly, as to the purchase price of heroin in Portsmouth at the time; and, thirdly, that 14 grammes was more than would have been for personal use alone.

[11] In advancing those submissions Mr Grey, rightly, drew attention to certain authorities. In R v Bryan, (unreported, Court of Appeal (Criminal Division) transcript of 8 November 1984) evidence had been called, in the course of a trial of the appellant for possessing cannabis with intent to supply, that the quantity of cannabis found in his possession was too much for personal use and, in the course of this court’s judgment, as appears from para 3E of the transcript, this was said:

“The point taken is that one of the police officers, as indicated in the summing-up at page 15F, had given some evidence about the quantity of cannabis and the cost of a deal on the street. Apparently he was a man who had some two years’ experience in the drugs squad and was described by the learned Recorder thus: ‘In the course of that time he has gained considerable knowledge of the street drug trade. He said that the usual quantity of cannabis pushed in a street deal (for one deal) is about one to two grams, and this costs about £ 5 for a deal.’ It is said that that evidence was hearsay and that, even if it was as to fact, the police officer was not enough of an expert to give that evidence. Indeed it was not a field of expertise which was recognised and therefore that evidence should not have been admitted and that it was unfair because it was not rebuttable. The view of this court is that police officers with their experience of dealing with these problems, being on the streets and with their knowledge and meeting with those having a drug problem and those pushing the drugs, have a very wide experience and can give evidence of fact of what takes place on many occasions on the streets.”

The court went on to hold that the evidence had been properly admitted.

[12] Mr Grey accepts that, following that decision, for very many years, it has been common in Crown Courts for evidence to be given by police officers, in relation to, in particular, the street value of elicit drugs. But, he submits, the position is now changed by reason of a decision of a differently constituted division of this Court in R v Edwards (unreported, [2001] EWCA Crim 2185, Court of Appeal transcript dated 19 October 2001). That was a case in which the Court upheld the trial Recorder’s decision to exclude evidence proffered on behalf of the prosecution and the defence, when the allegation related to the possession of Ecstasy with intent to supply. It was said, in the course of the judgment, that the material on which the two proffered witnesses relied was “classic hearsay”. Mr Grey submits that, notwithstanding that Bryan was not referred to in Edwards, Edwards should have been followed by the Recorder at trial in the present case and should, indeed, be followed by this court. Therefore, he submits, the evidence of Detective Constable Stevens ought not to have been admitted in the present case.

[13] In support of that submission, he relied upon a ruling given by His Honour Judge Burford QC, in R v Stebbing (1992) 14 Cr App Rep (S) 68 at Southampton Crown Court (transcript of 17 September 2002). In the course of that ruling, the learned judge concluded that he should follow Edwards, it being a more recent decision than Bryan, and he quoted from a judgment of Kerr LJ in Abadom 76 Cr App R 48. It is pertinent to rehearse the citation starting at p 53 in Kerr LJ’s judgment, which is set out from p 9C of the transcript of Judge Burford’s ruling:

“It seems to us that the process of taking account of information stemming from the work of others in the same field is an essential ingredient of the nature of expert evidence. So far as the authorities are concerned, the position can be summarised as follows. First, where an expert relies on the existence or non-existence of some fact which is basic to the question on which he is asked to express his opinion, that fact must be proved by admissible evidence. Secondly, where the existence or non-existence of some fact is in issue, a report made by an expert who is not called by a witness is not admissible as evidence of that fact merely by the production of the report, even though it was made by an expert. These, however, are, in our judgment, the limits of the hearsay rule in relation to evidence of opinion given by experts, both in principle and on the authorities. In other respects their evidence is not subject to the rule against hearsay in the same way as that of witnesses of fact. Once the primary facts on which their opinion is based have been proved by admissible evidence, they are entitled to draw on the work of others as part of the process of arriving at their conclusion . . . It does not seem to us in relation to the reliability of opinion evidence given by experts that they must necessarily limit themselves to drawing on material which has been published in some form. Part of their experience and expertise may well lie in their knowledge of unpublished material and in their evaluation of it.”

Judge Burford then goes onto at 10B of the transcript:

“There is nothing in my judgment in Abadom which is contrary to what was said in Edwards. What Abadom says, and what Edwards reinforces, is that the primary facts must be proved by first-hand evidence but that an expert, those facts having been proved, may then in the exercise of his expertise use other material, whether published or unpublished, in order to form his expert conclusion.”

[14] In the case of Stebbing, Judge Burford ruled inadmissible evidence tendered from a police officer, by no means as experienced as Detective Constable Stevens, and he did so having reviewed the authorities. His judgment also includes this passage at p 19, which we are told has been, to some extent, relied upon in adjacent Crown Courts. It is in these terms:

“What must be done, in my judgment, in order for the prosecution to prove the price of a particular drug on the street is for the officer collating information to set out in a systematic form his sources of those primary facts. He must set out how many undercover officers he has received first-hand evidence from about prices and what the prices are that they have told him. He must set out how many tape recordings of actual deals he has listened to and what the prices disclosed on those tape recordings have been. He must set out how much of his information is from consumer informants and what they have said. He must set out how much of his information is from seller informants and from what they have said, and he must set out which information he has disregarded, either because he has not believed it or because he regards it as a one-off transaction.”

[15] In adopting Mr Grey’s submissions, Miss Wilding, on behalf of Walker, added that her primary objection was to the evidence given by Detective Constable Stevens as to the 14 grammes being more than would have been used personally.

[16] On behalf of the Crown, Mr Foster submits that the learned Recorder was right, having heard evidence on the voir dire from Detective Constable Stevens, to rule that expert evidence could properly be received from him, and to permit the evidence to be called to which we have referred. Mr Foster relies on a passage in the judgment of Chief Justice King, in Bonython [1984] 38 SASR 45, the principal judgment delivered in that case by the South Australia Supreme Court. The learned judge said that, in deciding whether a witness is competent to give evidence there are two questions for judges to decide:

“The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This may be divided into two parts (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.”

[17] Mr Foster sought to distinguish Edwards from the present case and relies, unsurprisingly, upon Bryan. He submits that the jury were entitled to hear evidence on all three matters to which, on behalf of the appellants, exception is taken.

[18] In the present case, he submitted that the relevant primary facts, in relation to which Detective Constable Stevens’ expert evidence was pertinent, was that a 14 gramme bag had been found in the possession of one of the appellants; that observations had been kept over a period of time by police officers on both these appellants, and that there had also been found the scales and other paraphernalia to which we have referred.

[19] The separate ground advanced by Miss Wilding, on behalf of Walker, relates to the Recorder’s refusal to discharge the entire jury initially and his second and third refusals to discharge the jury, following the publication of the articles first in the local newspaper and then in the national newspapers.

[20] The submission which is made by Miss Wilding is that the Recorder failed to give sufficient weight to the risk of prejudice or injustice caused by the press coverage. He was furthermore wrong to conclude that the directions which he gave to the jury, albeit that he said all that could have been said by way of directing the jury to disregard the press reports, were incapable of being sufficient to eliminate the risk of prejudice to the appellant, Walker, in particular, from the press reports. At least one of the reports had referred to the appellants as being heroin dealers. There had been a reference to lawyers arguing about abandonment of the trial and the cost of the trial being some £ 96,000. There had been reference to a defence lawyer complaining about the sleeping juror and to the fact that the juror, immediately before she was discharged, declared unequivocally that she was bored by the proceedings, no doubt by way of explanation as to why she had undoubtedly fallen asleep. There was reference in the newspaper reports, or one of them at least, to her having been “kicked off the case” after a complaint by a defence lawyer, and it was said in the same article that lawyers had tried to “scrap the trial.”

[21] Miss Wilding accepted that the Recorder was right in identifying a number of respects in which the press reporting was inaccurate. But, she submitted, the Recorder, in deciding whether to discharge the jury, gave undue weight to the inaccuracy of the reports.

[22] Reference was made by her to McCann 92 Cr App Rep 239, where the Court of Appeal quashed convictions, after the trial judge had declined to discharge the jury, following highly pertinent and potentially prejudicial remarks by a senior judge and a senior politician, to which wide coverage had been given on the television, which directly bore on an aspect of high materiality in relation to the defendants, namely their failure to give evidence before the jury.

[23] Miss Wilding relied on that authority as showing that it is not always possible to remedy potential prejudice to a jury from media comment by a firm and clear judicial direction. That, she submitted, is particularly so where as in the present case, the matters reported referred to what had taken place in the absence of the jury. The Recorder, she submitted, was too readily satisfied that the impact of the articles was lessoned by their inaccuracy, and he too readily accepted that the jury would not be affected by them.

[24] Mr Foster, on behalf of the Crown, submitted that the appellant’s submission on this ground rested on the proposition that the jurors were told more than they should have been about what had happened in their absence. But he drew attention to the fact that, in due course, the jury deliberated about the guilt or otherwise of these appellants for a period in excess of eight hours, during which they asked pertinent questions about details of the evidence. He submitted that this reinforces his proposition that there was no sign of lack of impartiality, or lack of conscientiousness on the part of the jury. He distinguished McCann, particularly having regard to the fact that, in that case, the trial judge had not seen the television coverage about which complaint was made at the time when he exercised his discretion.

[25] In the present case, on the other hand, the Recorder, submits Mr Foster, was in possession of all the relevant material. Miss Wilding accepts that, in the course of his ruling, the learned Recorder accurately rehearsed the contents of the offending articles.

[26] In turning to our conclusions in relation to these two grounds, it is convenient, first, so far as the challenge to the admissibility of Detective Constable Stevens’ evidence is concerned, to rehearse, as appears from the Recorder’s ruling on 21 January 2002, p 5A, the evidence which the Recorder heard about the officer’s experience:

“Mr Stevens is a drugs officer, not of two [I interpolate that was a reference to the officer in Bryan] but of sixteen or seventeen years’ experience. He told me that for the last sixteen months he has worked as drugs liaison officer for Portsmouth. He has in the past worked undercover and one thing which he does presently do is that he sees every forensic science service drugs report which comes into the Portsmouth Division of the Hampshire Constabulary. He also said during the course of the voir dire that his knowledge of drugs matters comes from training videos, it comes from carrying out observation, speaking both to prisoners and informants, and he obviously works closely with colleagues and has been on a Home Office approved drugs investigation course, albeit some little time ago . . .

As to his knowledge of prices, he gets that from talking both to those who buy and sell and to police officers. He says that he has kept details of prices in this area for over the last twelve years. He says that so far as the kinds of bags are concerned, he knows this from seizures which are made and the bags which are taken in by the police. He has had bags made for him. He said that it was done because he wanted to use one in a lecture that he had to give and he watched it done.

As for the transference and the method of doing it, he says that he has obtained that evidence from observations. He has spoken to those who purchase heroin, and I would remind everybody that he says that he speaks to informants as well as those who have been arrested.”

Then at 6E:

“. . . Mr Stevens is a very experienced drugs officer and on the face of it more than competent to give the evidence that he sets out.”

That, of course, was a reference to the statement, served before the first trial in this case, and therefore a considerable time before the trial at which these appellants were convicted, which contained, among other material, the evidence to which exception is taken in the present appeal. The Recorder, at p 7, said this:

“Mr Stevens in this case has built up an enormous body of knowledge after a long career in the drugs investigation side of Hampshire Constabulary. That he cannot produce individual sources for his knowledge does not invalidate his evidence, in my opinion. He is the embodiment of much of the generally acquired knowledge over many years both of him personally and of the force in general. His experience in general is such, and his answers during the voir dire specifically such, that he satisfies me that he is qualified to be called as an expert on all the matters which he goes through in his statement, apart from those which have been excluded by agreement, notwithstanding that the evidence itself was hearsay and some of it opinion evidence.”

The learned Recorder, as is implicit in what we have said, took the view that he should follow Bryan not Edwards.

[27] In Edwards, the court upheld a ruling by the trial judge excluding evidence from potential witnesses, without medical or toxicological qualification, proffered to show the impact, in terms of developing tolerance or suffering serious harm, on a consumer of Ecstasy. The court did so on the basis that, absent such qualifications, what had been told to the proffered witnesses by drug dealers was classic hearsay which might or might not have been reliable. This case does not, in our judgment, bear on the issue in the present case, namely, whether this drugs officer of very many years’ experience could properly give evidence, derived in part from what he had been told by drug users, as to the street price of heroin and in relation to other matters which we have identified. It is to be noted, as we have said, that the authority of Bryan was not cited to the court in Edwards, still less could it, in consequence, be said to have been over ruled. Indeed, had it been relevant, it would plainly have been binding upon the court in Edwards. So far as the ruling by Judge Burford QC in Stebbing is concerned, it seems to us that the learned judge fell into error in three respects. First, in the passage which we have already cited from his ruling, immediately following the conclusion of his citations from the judgment of Kerr LJ, he misread impact of what Kerr LJ was saying, particularly in the last two sentences of the passages of his judgment which we have specifically rehearsed.

[28] Secondly, Judge Burford followed Edwards, notwithstanding that Bryan had not been cited to the court in that case, and in following Edwards (merely because it was the more recent decision), he fell into error because, as it seems to us, not only was Bryan not to be disregarded in the way that Judge Burford disregarded it, but Edwards was not a pertinent authority on the issue which arose in that case. We add that, in Edwards, had the court had the advantage of considering Kerr LJ’s comments in relation to expert witnesses and hearsay in Abadom, it might not have expressed itself in quite the terms it did.

[29] Thirdly, the matters allegedly identified by Judge Burford, at p 19 of his ruling, as primary facts, were not primary facts – they were sources of primary facts.

[30] In any event, as it seems to us, in the present case, the relevant primary facts were the observations carried out by police officers of the activities of the appellants, the finding of the 14 grammes of heroin in the possession of one of the appellants and the finding of the other paraphernalia in his house.

[31] In our judgment, the evidence of Detective Constable Stevens of facts and opinion was, in the light of his experience, properly admitted. It was the sort of evidence which the judgment of Kerr LJ, in the passage to which we have referred, embraced. He had, in his statement served on the defence given the categories of his sources of information and, of course, any witness who is tendered as an expert must do that. But that does not mean, as was submitted on behalf of the appellants, that it is necessary to call the various people to whom the witness has spoken, before the witness can give expert evidence based upon what they have said.

[32] Detective Constable Stevens’ evidence, accordingly was within the approach identified by Chief Justice King in Bonython. It was, furthermore, evidence which was capable of being challenged in cross-examination and by evidence called on behalf of the defence. No independent evidence other than that from the appellants themselves was called on behalf of the defence. The evidence of Detective Constable Stevens, in relation to value and quantities was unchallenged. Having regard to these matters the ground challenging admissibility of Detective Constable Stevens’ evidence fails.

[33] So far as the ground in relation to the failure to discharge the jury is concerned, it is accepted that the question of whether or not to discharge the jury was entirely one for the judge’s discretion. He had a balancing exercise to carry out. He rehearsed, in his three separate rulings, the matters which he took into consideration. They were relevant matters. None of them was irrelevant. All of them were accurately rehearsed. The weighing of them in the balancing exercise which it was incumbent upon the Recorder to carry out was a matter for him. It appears to us, having read the three separate rulings which we gave on this aspect of the matter, that he approached the question he had to decide conscientiously and fairly. In our judgment, no sustainable criticism of his refusal to discharge the whole jury is made out and, therefore, that ground also fails. These appeals must be dismissed.

DISPOSITION:
Appeals dismissed.

[2003] EWCA Crim 290, (Transcript: Smith Bernal)

Breach of Prosecution’s Duties: R v Roulston , Court of Appeal, Wellington (New Zealand)

[1976] 2 NZLR 644; 1976 NZLR LEXIS 692, *

Copyright 1976 New Zealand Council of Law Reporting
New Zealand Law Reports
R v Roulston
Court of Appeal, Wellington
[1976] 2 NZLR 644; 1976 NZLR LEXIS 692
8, 9, 10 June, 29 July 1976
DECIDED-DATE: 29 July 1976
CATCHWORDS:
[*1]

Criminal law — Homicide — Murder — Accused under influence of drug — Evidence and proof — Defence of insanity must show probable evidence of disease of mind — Burden of proof lies on Crown to prove every essential element but may rely on presumption that every man has sufficient mental responsibility for his crimes — Judicial discretion to comment on accused’s failure to give evidence — Address by prosecution — What is permissible or impermissible.

HEADNOTES:
The appellant whilst under the influence of the drug lysergide (LSD) shot and killed his friend at close range. There was no dispute that the appellant and fired the gun. The jury returned a verdict of guilty of murder. The appellant appealed on several grounds, the most important of which were that because of his condition he was not responsible for the actus reus part of an unlawful act, that even if he had been guilty of a technical assault he lacked any intent to kill or cause bodily injury, that he was insane, and that the learned judge had wrongly exercised his discretion to comment on the failure of the appellant to give evidence.

Held, dismissing the appeal:

1 It is not sufficient for a defence of insanity to provide [*2] evidence that merely indicated the presence of a disease of the mind of the accused; the evidence must show the probable presence of a diseased mind (see p 648 line 3).

Jayasena v The Queen [1970] AC 618, 624-628; [1970] 1 All ER 219, 221-224, referred to.

2 The ultimate burden of proving every element essential in the crime rests on the Crown which is entitled to rely on the presumption that every man has sufficient mental responsibility for his crimes. To rebut that presumption the defence must adduce evidence from which the contrary may be reasonably inferred (see p 648 line 19).

Bratty v Attormey-General for Northern Ireland [1963] AC 386, 413; [1961] 3 All ER 523, 534-535; R v Cottle [1958] NZLR 999, 1029, and R v Burr [1969] NZLR 736, 743, applied.

3 A judge has a discretion to comment upon the failure of the accused to give evidence, but if he exercises his discretion the comment should be fair and appropriate to the circumstances (see p 650 line 41).

R v Rhodes [1899] 1 QB 77, 83 and R v Bathurst [1968] 2 QB 99; [1968] 1 All ER 1175, referred [*3] to.

4 Whether self-induced intoxication is or is not a defence to crimes of basic intent in New Zealand was expressly left open by the court (see p 653 line 39).

R v Grice [1975] 1 NZLR 760 and R v Majewski [1976] 2 WLR 623; [1976] 2 All ER 142, referred to.

5 Crown counsel must not become an advocate fighting for conviction and it is quite impermissible for him to persuade a jury to a point of view by the introduction of factors of prejudice or emotion, but must present the case adequately having regard to all the circumstances of the case (see p 654 line 33).

NOTES:
Refer 4 Abridgement 351, 354, 207, 150, 148.

CASES-REF-TO:
Other cases mentioned in judgment
Mancini v Director of Public Prosecutions [1942] AC 1; [1941] 3 All ER 272.
R v Mutch [1973] 1 All ER 178.
R v Ryan [1973] 2 NZLR 611.
R v Stuck [1949] NZLR 108.

INTRODUCTION:
Appeal
This was an appeal against conviction for murder.

COUNSEL:
S G Erber and G F Orchard for the appellant.

Solicitor-General R C Savage QC, P W Graham and G E Langham for the Crown.

JUDGMENT-READ: Cur adv vult

JUDGES: Wild CJ, Richmond (P), Woodhouse and Cooke JJ

JUDGMENT BY: WOODHOUSE J.

JUDGMENTS: WOODHOUSE J. (Delivered the judgment of the court). Robert Douglas Roulston was charged [*4] with the murder of one John Beamsley at Ashburton. He was found guilty and now appeals against conviction. The grounds of appeal are that the verdict could not reasonably have been arrived at by the jury; that Roper J had wrongly exercised his discretion to comment on the failure of the appellant to give evidence; that he had misdirected the jury in several respects; that the defence had not been put adequately to the jury in the summing up; and, finally, that there had been unfair conduct on the part of Crown counsel during his final address.

The deceased died when a shotgun was fired at almost point blank range. It is not in dispute that the appellant held and fired the weapon. His defence rested upon claims that at the time he was incapable of rational thought or action by reason of a pre-existing psychiatric disorder or by the ingestion of the drug lysergide (LSD) a few hours before the shooting took place or by both. The defence was put forward on three alternative bases. First, that because he had been in a condition akin to automatism he was not responsible for the actus reus part of any unlawful act and so was entitled to be acquitted. Second, that even if it could  [*5] be said that he had been guilty of a technical assault he had lacked any intent to kill or cause bodily injury known to him to be likely to cause death and so at worst could be guilty only of manslaughter. And, third, on his behalf the defence of insanity was advanced in terms of s 23 of the Crimes Act 1961.

The appellant is a young man who lived with a married sister at Ashburton. He had drifted into the habit of smoking cannabis and experimenting with LSD. Some of his associates were doing the same thing. At about midday on 25 April 1975 he went with Beamsley (the deceased) to join a number of them at a house at Walker Street. There was a supply of LSD on the premises and he took some of it as did another member of the {646} group. Beer was being consumed and cannabis smoked, probably by both Roulston and Beamsley as well as some of the others. There is evidence that on the previous night Beamsley had taken LSD but he did not do so on this occasion. However, he may have been affected to a degree by cannabis or alcohol and there is a suggestion in the evidence that being acquainted with the effects of LSD he made remarks or gestures which were intended to precipitate some [*6] frightening form of hallucination in Roulston’s mind. By mid-afternoon the group had begun to disperse and at about 4.00 pm Roulston returned to his sister’s home where he was seen standing outside the house by his younger brother who thought he was unusually quiet and withdrawn. The brother said in evidence that after a period of time Beamsley arrived looking for Roulston who had still not come inside. However, there is evidence that the two of them did meet there in the house and that Beamsley suggested to Roulston that they should return together to Walker Street. Roulston indicated that he did not wish to do this but at about 4.50 pm they went off together in a car driven by Beamsley. Before long Roulston returned to his sister’s home. She was not present and he went to find her at a neighbour’s place. They came back together and then he asked the younger brother to call a taxi. After making this request he left his brother for a short period, then went out onto the road and was driven away in the taxi which by then had arrived in answer to the call by telephone. The time was then about 5.30 pm.

In the meantime Beamsley had gone by car from the Walker Street house together [*7] with two companions named Perry and Steel. They returned to Walker Street in the car at about 5.50 pm by which time Roulston was standing near a gate at the entrance to the place. As Perry walked past him to go along the path to the house he noticed that Roulston was carrying a sawn-off shotgun. Like a good deal of evidence in this case his description of what he did or saw is rather uncertain because he had been using drugs of one sort or another but he said he thought he had called out some sort of warning concerning the gun and then made himself scarce at the rear of the premises and found his way through neighbouring properties and back onto Walker Street where he again saw Roulston who by this time was walking away from the house. By then Beamsley had approached the gate and had been shot by Roulston at a range of 6 to 12 feet. After falling to the ground he managed to get to the kitchen of the house where he collapsed. An hour later he died at the hospital to which he had been taken by ambulance.

Steel’s evidence is that as he started to walk up the path he heard a bang and turned round to see Beamsley lying on the ground. Beamsley then jumped up and ran towards the house.  [*8] The note of Steel’s evidence then reads:

Q Did you say anything to [Roulston]? A Yes I think I said, “You’ve shot him, what did you shoot him for,” or something like that. I could have said something more to him I can’t remember. I think I asked him why. I can’t remember what he said. He said something like, “Don’t worry Nev. I’m not going to shoot you”.

Q He said that quite clearly to you or was it hard to follow? A No quite clearly. I cxould have asked him why he had shot him I can’t remember. As to any discussion in the street about the events which happened in the kitchen, I think he said something about he was having a hard time.

Steel went on to say that he put out his hand to try to take the gun from Roulston who would not give it to him. Roulston then walked away down Walker Street.

{647} Not long after leaving Steel, Roulston appeared at the home of another friend named Edward and said “I think I’ve just shot Jug [Beamsley]”. Roulston was still carrying the shotgun and Edward took it and unloaded it without any resistance or comment by Roulston. According to Edward he then hid the weapon beneath the house and returned to Roulston who had been taken inside  [*9] by others. Edward said in evidence that he was uncertain whether to accept Roulston’s statement about Beamsley as true, that he felt shocked and wanted to think clearly what to do and in the end, for the next few hours, he and a companion drove Roulston to Christchurch looking for advice and help in regard to the matter. They finally returned Roulston to his home in Ashburton at about 11.30 pm and the police took him into custody three hours later. When interviewed by a detective sergeant Roulston answered questions about the shooting to the effect that he had walked to the gate where he saw Beamsley; that he thought he had to shoot or he would go mad and be shot; and “that it had to happen”.

The first ground of appeal is that the verdict was one that a reasonable jury, properly directed, could not have arrived at. The argument depends entirely upon an analysis of the considerable volume of psychiatric evidence given by five doctors (three called on behalf of the appellant and two by the Crown) because otherwise the facts surrounding the shooting would certainly prompt the clear inferece that Roulston intended to kill or to cause bodily injury known by him to be likely to cause [*10] death and in circumstances where he was reckless as to whether death ensued or not. The weapon used was a sawn-off shotgun. He had obtained it only a short time earlier from his home together with several rounds of ammunition. Then, at the critical time, he appears to have allowed Perry and Steel to go past him before using the weapon upon Beamsley who was shot at a range of 6 to 12 feet. He then made his way to the place occupied by his friend Edward within minutes of the shooting and said that he thought he had shot Beamsley. At 3.15 am after he had been taken into custody he gave explanations to the police which would enable the jury to conclude that nine hours earlier he had appreciated what he had been doing and that the shot had been fired not merely with deliberation but with a murderous intent.

The analysis of the medical evidence was undertaken on the appellant’s behalf in order to demonstrate that it must have raised a reasonable doubt as to whether he had been capable at the time of the shooting of forming any criminal intention. And the argument included a basic assumption that if by reason of some degree of a disease of the mind he may have been incapable of understanding [*11] the nature and quality of what he was doing then it followed automatically that the Crown had failed to discharge the onus of proving the essential ingredient of mens rea. The validity of that assumption depends upon the outcome of a separate ground of appeal which relates to the summing up — that is, that the judge was wrong in directing the jury that the onus of proof in relation to the defence of insanity lay upon the accused. It is convenient to deal with the issue at this point.

On the basis that the onus always rests upon the Crown to prove criminal intent counsel contended in effect that it was paradoxical and even incongruous that contemporaneously an accused person (in terms of what counsel described as the “orthodox” view) should be expected to demonstrate affirmatively that by reason of disease of the mind he had not been capable at the relevant time of understanding either the physical or moral quality of what he was doing. In his submission the situation created a logical difficulty which could not be resolved unless the onus upon the accused to answer the presumption of sanity referred to in s 23(1) of the {648} Crimes Act could be met simply by providing evidence [*12] of the existence of a disease of the mind; and without some further need to prove that the disease had produced an incapacity of the type and degree outlined in s 23(2). As a gloss upon the general submission he argued as well that it was not necessary for the accused to show the probable presence of a disease of the mind: it would be enough to provide evidence that merely indicated such a disease.

Firt, we do not accept the gloss. Counsel described it as an “evidential burden” upon the accused. It was, he said, a burden limited to the need to lay some foundation for the defence of insanity but when that had been done the general burden of proving the charge would require the Crown to exclude it beyond reasonable doubt. It is the sort of argument put forward (albeit in a different context) in Jayasena v The Queen [1970] AC 618; [1970] 1 All ER 219; and it was rejected for the reasons given by Lord Devlin (ibid, 624-626; 221-224) which are equally applicable and compelling in the present case.

The remaining part of the general submission is concerned with the apparent paradox that co-existent with the onus on the Crown to prove the criminal intent going [*13] with the actus reus the accused, relying on the insanity defence, must prove an incapacity to understand the nature and quality of the same act. It appears to be a variant of a submission advanced in Bratty v Attorney-General for Northern Ireland [1963] AC 386; [1961] 3 All ER 523, and was answered by Lord Denning in the following terms:

“. . . I think that the difficulty is to be resolved by remembering that, whilst the ultimate burden rests on the Crown of proving every element essential in the crime, nevertheless in order to prove that the act was a voluntary act, the Crown is entitled to rely on the presumption that every man has sufficient mental capacity to be responsible for his crime: and that if the defence wish to displace that presumption they must give some evidence from which the contrary may reasonably be inferred” (ibid, 413; 534-535).

The same point is referred to by North J in R v Cottle [1958] NZLR 999 where mixed questions arose as to insanity and automatism. He said:

“. . . I think the trial Judge was obliged also to deal with the case on the assumption that the jury might be of opinion that it had not been shown that the prisoner [*14] was suffering from a disease of the mind, for this in the final result is within the province of the jury. In the ordinary run of cases, no difficulty would be experienced for, if the jury rejected the defence of insanity, a verdict of guilty would be likely to be given. This for the reason that the jury would only go on to consider the special defence, if it were already convinced that the Crown had proved to its complete satisfaction that the act had been committed by the prisoner and — if he was same — in circumstances which compelled the conclusion that the act was deliberate and intentional” (ibid, 1029).

In the later case of R v Burr [1969] NZLR 736 he returned to the matter. He said:

“It is therefore desirable, I think, to begin by looking at the way the law views responsibility for crime in a general way. As I see the matter, in the interests of society, the law has found it necessary to adopt a pragmatic approach to responsibility for crime. Some doctors who no doubt have a far more intimate knowledge of the workings of the mind take a different and broader view, but our law proceeds on the basis that everyone is presumed to be sane until the contrary is shown and  [*15] accordingly a man is presumed to intend the natural and probable consequences of his acts. Now, in my opinion, it is only in that way that {649} the criminal law could ever be satisfactorily administered from the point of view of society” (ibid, 743).

It may well be that when the evidence in a case is considered as a whole the initial presumption of sanity will fail to lead to a clear inference of mens rea and in that event the Crown will have failed at that first stage to take the case to the point when consideration of the defence of insanity will need to arise. But once, sanity being presumed, the necessary intent is clearly to be inferred, then the second stage of the inquiry will be whether the accused has shown in terms of s 23(2) of the Crimes Act that by reason of disease of the mind he did not appreciate either the physical or the moral quality of his acts. If he fails to show that this is more likely than not then the provisional presumption of sanity will not have been displaced, nor the consequential inference of capacity and intention.

Before leaving the general submissions concerning insanity it is necessary to mention two minor matters. Roper J’s explanation of [*16] the law was introduced by a brief statement that at this point in the case the accused said in effect, “Well, I fired the gun that killed Beamsley, I acted intentionally but I was insane and therefore not accountable for my actions in law”. The objection is taken that no concession had been made at any stage of the case or for any purpose that the appellant had acted intentionally, and the statement by the judge was therefore misleading and contributed to a miscarriage of justice. We do not agree. It was obviously intended as a brief prefatory remark in order that the jury would better be able to understand what he was about to say concerning the law and we are satisfied that it would have been understood in that sense. The other point relates to examples given by the judge to the jury of persons affected by a disease of the mind in the sense outlined in s 23(2) of the Crimes Act. He was attempting to draw the jury’s attention to the distinction between an understanding of the nature and quality of one’s actions, on the one hand, and their moral quality, on the other. In essence the criticism is that the graphic manifestations of insanity in the examples provided by the judge [*17] were so far removed from the symptoms of insanity relied upon in the present case as to suggest there could be nothing in the defence. We are unable to accept this criticism. On the contrary, we think that Roper J gave a careful and completely lucid explanation of the separate limbs of s 23(2).

We return to the first ground of appeal and to the medical evidence. As to this evidence it is certainly clear enough that in the opinion of some of the doctors Roulston at the relevant times was insane in the sense defined by s 23; and there is other evidence that his perception and understanding were gravely distorted, either by a psychiatric disorder or by the LSD he had taken or both. But the evaluation of all the medical evidence was fairly and squarely within the province of the jury and the two doctors called in rebuttal by the Crown were of the opinion that he was not insane in the criminal sense. Accordingly, we are satisfied that the jury was justified in rejecting the defence of insanity.

There remains the issue as to whether the appellant was incapable of forming any criminal intent or whether what he did was done in a state of automatism. As to this there is nothing to suggest [*18] that the jury excluded any part of the medical evidence in considering the issues raised or that they failed to act upon the direction given them that, insanity apart, the onus lay upon the Crown to prove all the ingredients of the crime, including, of course, intent. In our view, the opinions expressed upon the point by Dr Savage and in particular by Dr Hewland justified the jury’s conclusion that the appellant at the time of the shooting knew what he was doing, that what he was doing was wrong and that he was acting with conscious volition. There {650} was some criticism of the opinions reached by these two doctors upon the basis that their examinations of Roulston had been somewhat limited. It was said, too, that certain evidence of the doctors called on his behalf had not been put to them in any direct way so that their own opinion could have been given upon it. But the significance to be attached to criticism of this sort is entirely for the jury. In our opinion, the verdict of murder was open on the evidence and this ground of appeal must fail.

The second ground of appeal is concerned with a brief comment made by Roper J concerning the fact that the appellant was not  [*19] called to give evidence on his own behalf. He said:

“. . . there is no onus on an accused to prove anything apart from the matter of insanity and there is certainly no obligation upon him to give evidence. However, I feel justified in this case in expressing the view that it might have been of assistance in your inquiry, which is primarily one into his state of mind at a particular time, if you had had the opportunity to see its workings at first hand. I stress, however, that an accused is perfectly entitled to sit silent and many accused persons do.”

Those three sentences appear at the end of a passage in the summing up where the judge had referred to the alternative verdicts that were open to the jury, including insanity and automatism, and the state of mind that was referable in each situation. Having done that the comment concerning the failure to give evidence was immediately prefaced by a statement:

“We are dealing here with an incident which involved two main participants, Beamsley and the accused Roulston. There is no dispute that Roulston’s hand held the gun when Beamsley was short. Beamsley is dead, and the whole of this case has developted into an inquiry as to Roulston’s [*20] state of mind at the time of that incident. Now his actions, words, thoughts on that fatal day have come to you through others, much of it in a sense filtered through a psychiatric screen.”

Concerning this part of the summing up it was argued that the inference that the jury would draw from the judge’s remarks was that there might not be any real substance in the defences of the accused referable to his state of mind; that it was unreasonable to expect an accused person to give evidence where a defence of insanity had been put forward; that the judge failed to advert to the reasons that could justify the failure to give evidence; and that no real explanation was given as to the use the jury could make of the failure to give evidence taking into account the various defences that had been put forward.

When the exercise of a judicial discretion is under review the issue is not, of course, whether one would necessarily have exercised the discretion in the same way or at all. And in cases where a comment by the judge upon a failure to give evidence is justified the general principle was laid down as long ago as 1898 by Lord Russell of Killowen C J in R v Rhodes [1899] 1 QB 77 [*21] when he said:

“The nature and degree of such comment must rest entirely in the discretion of the judge who tries the case; and it is impossible to lay down any rule as to the cases in which he ought or ought not to comment on the failure of the prisoner to give evidence, or as to what those comments should be” (ibid, 83).

Of course the comment should be fair and it should be appropriate to the circumstances of the case. In R v Bathurst [1968] 2 QB 99; [1968] 1 All ER 1175 (relied upon by the appellant) a defence of diminished responsibility was relied upon by the accused in order to reduce murder to manslaughter. A strong comment had been made by the judge concerning the failure of the accused to give evidence and Lord Parker C J drew attention to the obvious {651} absurdity of expecting that an accused person should give evidence in such a case in order to demonstrate that he was not altogether sane.

The situation here is very different. An important part of the defence was that the appellant acted automatically, in some sort of trance, and so had been unable to relate his mind to his actions. Moreover, his counsel tendered [*22] a great deal of hearsay evidence from the psychiatrists which dealt with the appellant’s descriptions to them of what had taken place at the time of the shooting, and why. Although this evidence was put forward in order to provide a foundation for their professional opinions about his state of mind it also amounted to an important exclupatory account by him of what happened, but provided at second hand through the doctors. In the circumstances it was not unreasonable for Roper J to conclude that the jury may have derived some assistance if they had been able to consider the material from Roulston’s own lips. The acceptance on the appellant’s behalf that he had shot Beamsley with a sawn-off shotgun at point black range followed by the medical evidence designed to show an absence of conscious volition comes close to the situation of “confession and avoidance”, mentioned by Lawton L J in R v Mutch [1973] 1 All ER 178, 181. The factual circumstances of what could be regarded as a deliberate shooting were not in question but the defence of automatism very much was; and the appellant’s explanations to the doctors were an essential part of that defence. Those [*23] explanations were used as a basis for professional opinions but a great deal of the material was susceptible of lay evaluation in a fair and balanced way by the jury and certainly it was likely to have some influence upon the decisions they had to make. Roper J seems to have considered that in the circumstances it deserved some sort of confirmation by teh appellant in evidence. We think that was a justified attitude and also that the jury was well able to appreciate that the comment he made was directed to the automatism defence. It is right to add that considered in terms of likely impact it would be difficult to find a comment upon the failure of an accused person to give evidence put so mildly or with such fair restraint.

The next general ground of appeal is that there was an inadequate direction in relation to manslaughter. It was accepted by counsel that the jury was properly directed concerning mansaughter resulting from an assault. He contende,d however, that it was necessary for the judge to go on to direct them that by reason of s 156 of the Crimes Act, or s 16 of the Arms Act 1958, the negligent use of a firearm could be unlawful and that if the death was caused by  [*24] such negligence that too would lead to a verdict of manslaughter. In this regard there was no suggestion that the weapon was fired accidentally. The argument rested on a theory that although Roulston intended to fire the shot he may not have intended to fire at Beamsley but merely to fire near to him. It was said that the failure to canvass this theory may have led the jury to ignore manslaughter as a genuine alternative to murder and that there was an obligation upon Roper J to open up this alternative version of what may have happened although counsel had not raised the question at any stage of the trial. We were referred to a number of cases including mancini v Director of Public Prosecutions [1942] AC 1, 8; [1941] 3 All ER 272, 276-277, and R v Stuck [1949] NZLR 108.

It is true, of course, that a judge is oblidged to deal with a defence which is properly open on the evidence although it may not have been referred to by counsel for the accused. But we are satisfied that the principle does not support the present submission in the circumstances of this case. The evidence does not readily lend itself to the rather strained inference that a shot fired [*25] with deliberation at a range of 6 to 12 feet was intended to pass by rather than hit the deceased. In any event, Roper J himself did not dismiss as {652} fanciful an inference that the weapon could have been fired intentionally at Beamsley yet without the added intention to kill. What he said upon the subject needs to be repeated. At the conclusion of a review of the medical evidence he interpreted the opinions of the two doctors called by the Crown on the basis that they thought Rouslton had possessed some ability to reason although not completely.

He then added:

“You might well conclude from teh combined evidence that they gave that their conclusion was that while the accused did not have the intent to kill because of his disordered mind, he did intend to shoot, that is the intentional application of force.”

Then, when dealing directly with manslaughter, he said:

“Now the next defence to be considered here is that while the accused may have acted voluntarily and his actions were subject to the exercise of his will, he was so affected by the drug LSD that he was incapable of forming the intents necessary for the crime of murder. Or that he did not in fact form them. That is,  [*26] the intent to kill and the intent to kill recklessly. He fired intentionally but because of the disordered state of his mind at that time he could not or did not form the necessary intent.

“. . . However, you could well have the situation where you were satisfied that an accused had killed by an unlawful act, that is the intentional application of force, intending to fire the gun, but he left in reasonable doubt on all the evidence, including the evidence of drug taking and its effects, that because of that he was incapable of forming the intent to kill or kill recklessly or did not in fact form either of those intentions.”

A little later in the summing up he referred to the apparent lack of motive for the shooting and after remarking that there was no obligation on the Crown to prove motive he added:

“. . . of course as a matter of common sense the apparent lack of it, if there is an apparent lack, must be a consideration to be taken into account particularly on this question of the intent to kill or kill recklessly.”

In this area of the summing up he concluded by saying:

“If you are satisfied beyond reasonable doubt that the accused, when he fired at Beamsley did so intentionally,  [*27] for whatever reason, but he did it intentionally, his will going to the act, doing it voluntarily whatever he may have intended by it, but are left with a reasonable doubt as to whether at that time he had the intent to kill or kill recklessly because of his state, your verdict would be not guilty of murder but guilty of manslaughter.”

It is perfectly plain from those extracts from the summing up that the issue of manslaughter in this case was left as wide open as it could possibly be. Furthermore, Roper J himself clearly regarded the defence as one that required and deserved careful consideration; and by summarising the medical evidence given for the Crown in the way that he did he came close to inviting the jury to regard the opinions of those two doctors as leading to a manslaughter verdict. It should be appreciated, we think, that a new trial was ordered in R v Stuck [1949] NZLR 108 because the hypothesis suggested in the summing up for a verdict of manslaughter was limited to provocation, something that was not suggested by the evidence, while some foundation in accused’s statement for the accidental firing of the weapon by reason of its negligent use was ignored as a basis [*28] for a manslaughter verdict. It is certainly unnecessary, and often it would be undesirable, for a judge who had carefully {653} explained some credible basis for a manslaughter verdict to then proceed to examine other speculative alternatives that had not been raised at any time during the trial. In the present case we are clearly of the opinion that Roper J was quite right to leave the matter where he did.

An associated criticism of the summing up was directed to an answer he gave to a question asked by the jury after they had retired to consider their verdict. The question reads:

“If he does not understand the implication of his actions due to the ingestion of LSD is this a defence against murder, that is, does it make it manslaughter?”

The judge confined his answer to a discussion of the intent needed to justify a verdict of murder and he did not repeat the explanations he had given earlier that if Roulston had been incapable of forming the necessary intent involved in the concept of assault that he would be entitled to an acquittal. The criticism is related to that last point and the short answer to it is that the jury could not have been misled because by their verdict  [*29] of murder it is clear that the question was directed to the issue as to whether they should reduce murder to manslaughter and not whether they could or should go to an acquittal.

There are two other minor criticisms of the directions given to the jury. They relate to the discussion of the defence of lack of voluntary action. On the one hand there is a complaint that Roper J failed to remind the jury sufficiently of the medical evidence in this part of the case. As to this he had discussed the various implications arising fromt eh evidence when dealing with insanity and, in our opinion, it was quite unnecessary and may have been confusing for him to reiterate what he had said to the jury so recently concerning these matters. The other point concerns the judge’s treatment of a contention that Roulston had been so affected by LSD as to regard himself as no more than a “spectator” of what occurred at the time of the shooting. We think there is nothing in this matter. Nor can we find any justification for a more general submission that there was a failure to put the defence adequately to teh jury. In this regard the judge must, of course, put the defence forward in a fair and balanced [*30] fashion but there is no need for him to refer to every fine facet of the case: see R v Ryan [1973] 2 NZLR 611. We are satisfied that here Roper J provided the jury with an admirably coherent and comprehensive survey of the various defences that had been raised on the appellant’s behalf and in no sense could anything further reasonably have been required of him.

Before leaving the summing up it is necessary to mention a matter raised on behalf of the Crown. In R v Grice [1975] 1 NZLR 760, this court, in the light of certain Australian decisions, left open the question whether (apart from teh defence of insanity) drunkenness or durg-taking can do more than reduce murder to manslaughter. Among other things it was indicated that criminal negligence had not been in issue at the trial in that case. Since then the House of Lords has held in R v Majewski [1976] 2 WLR 623; [1976] 2 All ER 142 that self-induced intoxication is not a defence to crimes of basic intent. In the present case Roper J took a different view. He directed the jury to the effect that even to prove manslaughter the Crown had to prove that the accused fired at  [*31] Beamsley intentonally; and that this burden would not be discharged if for any reason the jury were left in reasonable doubt about whether the accused’s action in firing was voluntary. That is to say, the summing up proceeded on the basis that self-induced intoxication could be a defence to manslaughter. On the argument of the appeal the Solicitor-General requested that this question and the whole question of the applicability or otherwise of Majewski’s case in New Zealand be kept open. By arrangement {654} between counsel no argument was submitted on these questions. They must still be regarded as open.

The final issue raises a different question. It involves a complaint that Crown counsel at the trial exceeded the bounds of propriety in his final address in that he did not put the case fairly or completely to the jury (cf R v Thomas (No 2) [1974] 1 NZLR 658); and in general that he used emotive and inflammatory language in order to persuade the jury to a point of view which was not justified by the evidence. It is a complaint that fortunately is rarely levelled at the conduct of prosecuting counsel in this country. In the Thomas case the Crown Prosecutor was criticised on [*32] the basis that he had made certain unreasonable submissions upon the evidence but, after pointing out that the interests of justice did not involve merely the interests of the accused concerned, this court stated that it was satisfied that nothing improper had taken place. On the other hand it has always been recognised that prosecuting counsel must never strain for a conviction, still less adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused. Such conduct is entirely inappropriate and a basic misconception of the function of any barrister who assumes the responsibility of speaking for the community at the trial of an accused person. Naturally enough a proper balance needs to be maintained. The view expressed in 10 Halsbury’s Laws of England (3rd ed) para 761 that prosecuting counsel “should regard themselves as ministers of justice assisting in its administration” ought not to lead to the assumption of a role so emasculated as to merit Lord Devlin’s remarks in Trial by Jury (1966 ed) 122-123:

“. . . in some places the pendulum has swung so far, and the ministry has moved so close to the opposition, that the prosecution’s [*33] case is not adequatly presented, and counsel, frightened of being accused of an excess of fervour, tend to do little except talk of reasonable doubt and leave the final speech on the facts to the judge.”

The feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another. Nevertheless, it is wrong for Crown counsel to become so much the advocate that he is fighting for a conviction and quite impermissible to embark upon a course of conduct calculated to persuade a jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial. With those considerations in mind we turn to the extracts from the agreed transcript of the address which are the subject-matter of the complaint. At an early stage of the address counsel said:

“Yet the defence says that Roulston should be completely acquitted, that is, to leave the court without [*34] conviction — a free man. Can society stand for that — for a man being shot in such brutality in such circumstances. That is one of the tests which you will have to apply when dealing with this case.”

Then, having referred to the appellant’s movements after leaving by taxi from his sister’s home he said:

“His [Roulston’s] movments for the next half hour or more are not covered by the evidence, but you may feel that it would be a fair inference to suggest that he remained at the back of 103 Walker Street until about five to six in ambush with his assassin’s short range gun and that he waited for his victim to come along.”

{655} A little later there are comments to the effect that Steel had spoken to the accused:

“. . . alleging that he said to the accused that the accused had shot Jug, why did he do it and that the accused said something to him quite clearly like ‘Don’t worry Nev I’m not going to shoot you'”, and that:

“. . . it is the Crown’s case that, on this evidence, you could conclude that the accused had deliberately and selectively with cold callous indifference shot and killed his friend Beamsley. . .”.

There is a further complaint that Crown counsel suggested to the [*35] jury that “when the local doctor examined [Roulston at the police station] he had not had time to concoct a story that might assist his defence later”, and that the jury:

“. . . should be on the lookout for a measure of cunning on the part of this accused, on his state of mind immediately after the shooting, before he had these many visitations by specialists and before he had had time to think and work out with the aid of matters he could recollect later some form of defence involving his mental state.”

A final complaint is that although Crown counsel knew that the judge had already ruled that the defence of lack of voluntary action or automatism consequent upon self-induced intoxication would be left to the jury (so as to permit the jury to return a verdict of “not guilty”) counsel said:

“The Crown submits that the mere taking of LSD should not be accepted as an absolute defence for murder nor for any other criminal offence . . . . If it were a complete defence, a man who had partaken of the drug could come out of a house, and say rape a woman, criminally assault a child or drive a car and in that way kill someone else and could escape scot-free. . . . Assuming that the driver [*36] of a car affected by LSD felt himself to be a pilot of a 747, tried to take off and crashed headlong into a vehicle approaching from the opposite direction, are these persons who voluntary [sic] take LSD to escape any penalty to go scot-free for the crimes that they commit while under the influenences of drugs.”

Those various remarks were made in the course of an address to the jury which covered a good deal of territory and no doubt occupied some significant period of time, so they need to be evaluated within that much wider context. That is what we have attempted to do. But having made all proper allowance for that factor we find it necessary to describe some of the language used and the general implication that can be drawn from some of those extracts as prejudicial and unfair. A sawn-off shotgun is likely to be regarded as a deadly enough weapon without describing it in terms of an assassin’s short range gun; and the degree of cold calculation by Roulston which the jury was invited to associate with his actions received no support even from the doctors called by the prosecution itself. And if the final comments were made with foreknowledge of the judge’s direction to the jury [*37] upon the point, they were inexcusable. Even in a civil action no counsel is entitled to attempt to mitigate in advance the effect of a direction in law that he knows will be given by the judge. His remedy lies elsewhere. Moreover, whatever counsel may have wished to convey to the jury the metaphorical licence he employed was far-fetched and remote from both the facts of this case and the law applicable to them.

In the circumstances it has been necessary to consider with particular care the possible effect of the remarks — Whether they may have improperly influenced the jury. Finally, after taking into account the rest of the address and the whole course of the trial we are left satisfied that in the end the real issues in the case were kept in balance. Our reasons are these:

First, the transcript of evidence demonstrates that despite the {656} extravagant language he employed at the end of the case counsel’s conduct during the trial itself was entirely fair.

Second, but for the extracts we have taken from the final address the address itself was a firm but reasoned and entirely professional review of the case — as we would have expected. It needs to be kept in mind as well [*38] that of necessity we have had to repeat in close sequence the various extracts from counsel’s address. In quite a long address they were, of course, isolated from one another. Set out seriatim as they appear in this judgment we are satisfied that they have much greater force and impact than could have been the case on the occasion.

Third, we were told by Mr Erber from the bar that during his own final address (which of course immediately followed upon that of prosecuting counsel) he did what he could in a positive way to redress the damage that he felt had been done to the appellant.

Fourth, there is the supervision of the trial that was exercised on the occasion by Roper J. Mr Erber submitted that the judge should have prevented prosecuting counsel from continuing to deal with the issues as he did and should have expressly told the jury in his summing up that they should not be influenced by the remarks we have quoted. The fact is the judge did not interrupt. He may have felt at the time that the matter had not been taken to a level that warranted action by him. It may be that he felt that what had been said could not be erased and might be given an undesirable emphasis were [*39] he to interfere. But what he did do was to provide for the jury a clear and dispassionate review of the whole case which we think at the very outset succeeded in bringing the jury to recognise the importance of putting aside any sort of moral judgment based upon emotional considerations. He then said:

“That brings me to one of the most important matters I must mention and both counsel have stressed it, that you must do your utmost not to be influenced by any feelings of disgust, sympathy, ill-will or abhorrence about the drug question. No emotion whatsoever whether directed to the accused or anyone else connected with this trial. You have to give the matter calm and fair-minded consideration.

“It is probably almost impossible for you to imagine yourself in the unfortunate position of this accused, but in the course of your deliberations it might not be a bad thing to consider yourself in that situation and then give the case the thoughtful and careful consideration you would want others to give your case.”

He added:

“I think there is a good deal of force in what Mr Erber said that we are dealing here with an alleged offence said to have been committed under the effect of an hallucinatory [*40] drug. . .”.

Earlier in this judgment we have referred to other passages from the summing up that were not unsympathetic to the arguments advanced on the appellant’s behalf and when it is read as a whole we feel satisfied that the remarks made by the Crown counsel were left in proper perspective.

In the result, although some of the remarks which we have quoted were unfair and objectionable when taken by themselves, we are satisfied nevertheless that there is no real risk that they wrongly influenced the verdict and for that reason they did not result in an unfair trial.

We have now dealt with the various matters raised in support of the appeal. For the reasons we have given the appeal is dismissed.

ORDER:
Appeal dismissed.

SOLICITORS:
Solicitors for the Crown: Crown Law Office (Wellington). #020509M001USPENK#

Criminal law — Perjury — Mens rea — Witness wilfully making statement in judicial proceeding knowing it to be false — Statement material in that proceeding — Material — What knowledge prosecution must prove — Whether prosecution need prove that witness knew or believed the statement was ‘material in that proceeding’ — Perjury Act 1911, s 1(1 )(6 ): R v Millward COURT OF APPEAL, CRIMINAL DIVISION (United Kingdom) (Very Good Case for Defendant Who Got Enough Documentation of Proofs)

[1985] 1 QB 519, [1985] 1 All ER 859, [1985] 2 WLR 532, 80 Cr App Rep 280, 149 JP 545

R v Millward
COURT OF APPEAL, CRIMINAL DIVISION
[1985] 1 QB 519, [1985] 1 All ER 859, [1985] 2 WLR 532, 80 Cr App Rep 280, 149 JP 545
HEARING-DATES: 14, 25 JANUARY 1985
25 January 1985
CATCHWORDS:
Criminal law — Perjury — Mens rea — Witness wilfully making statement in judicial proceeding knowing it to be false — Statement material in that proceeding — Material — What knowledge prosecution must prove — Whether prosecution need prove that witness knew or believed the statement was ‘material in that proceeding’ — Perjury Act 1911, s 1(1 )(6 ).

HEADNOTE:
In order to establish that a person charged with perjury, contrary to s 1(1) of the Perjury Act 1911, has the requisite mens rea for the commission of the offence, the prosecution merely has to show that in the judicial proceeding in which he was a witness he wilfully (i e deliberately and not inadvertently or by mistake) made on oath a statement which he knew to be false or did not believe to be true.  The prosecution does not have to show that he knew or believed the statement to be material in that proceeding, for the materiality of the statement is a matter which, by virtue of s 1(6), is to be decided objectively by the judge (see p 861 j, p 862 a b and d to h and p 863 f g, post).
A false statement may be considered ‘material’ within the meaning of s 1(1) of the 1911 Act if it might have affected the outcome of the proceedings (see p 863 a to f, post) R v Lavey (1850) 3 Car & Kir 26 applied R v Sweet-Escott (1971) 55 Cr App R 316 considered.

NOTES:
For the meaning of perjury, and the materiality of a statement, see 11 Halsbury’s Laws (4th edn) paras 938, 941, and for cases on the subject, see 15 Digest (Reissue) 945, 952–955, 8150–8154, 8206–8243.

For the Perjury Act 1911, s 1, see 8 Halsbury’s Statutes (3rd edn) 241.

CASES-REF-TO:

R v Holden (1872) 12 Cox CC 166, Assizes.
R v Lavey (1850) 3 Car & Kir 26, 175 ER 448, NP.
R v Murray (1858) 1 F & F 80, 175 ER 635, NP.
R v Sweet-Escott (1971) 55 Cr App R 316, Assizes.

CASES-CITED:

R v Ryan (1914) 10 Cr App R 4, CCA.

INTRODUCTION:
Appeal

On 24 November 1983 in the Crown Court at Stafford before Drake J and a jury the appellant, Neil Frederick Millward pleaded not guilty to a charge of perjury, contrary to s 1(1) of the Perjury Act 1911.  He admitted that he had made certain false statements while giving evidence on oath as a principal witness in a judicial proceeding, but submitted that he could not be guilty of perjury (i) because the false statements were not made with the mens rea necessary for the commission of the offence, and (ii) because, in any event, the statements were not, within the meaning of s 1(1), ‘material’ to the proceedings.  Drake J rejected both submissions.  The appellant thereupon changed his plea to one of guilty.  He was sentenced to three months’ imprisonment, suspended for one year.  He appealed against conviction on the ground that the judge had erred in rejecting both his submissions.  The facts are set out in the judgment of the court.

COUNSEL:
Richard Tucker QC and Simon Brown (both assigned by the Registrar of Criminal Appeals) for the appellant.

Peter Stretton for the Crown.

JUDGMENT-READ:
Cur adv vult

25 January.  The following judgment of the court was delivered.

PANEL: LORD LANE CJ, RUSSELL AND KENNEDY JJ

JUDGMENTBY-1: LORD LANE CJ

JUDGMENT-1:
LORD LANE CJ.  In November 1983 in the Crown Court at Stafford before Drake J and a jury the appellant, who was at all material times a police officer, was charged with perjury.  He pleaded not guilty.  At the close of the prosecution case submissions were made by counsel on his behalf.  The judge rejected those submissions.  The effect of that rejection was to render the appellant’s proposed defence ineffective.  He was thereupon advised, and correctly advised, to change his plea to guilty, which he did.
He was sentenced to three months’ imprisonment suspended for 12 months and ordered to pay £500 towards his legal aid costs.  The only issue in this appeal is whether the judge was correct in law in the rulings which he made.
The facts were as follows.  On 10 June 1982 the appellant had reason to stop a car containing two Indian men.  He considered that certain offences had been committed by the driver.  He knew the driver by sight but not by name.  The driver gave his name as Parshan Singh.  The appellant asked the driver for his driving licence and other documents, but these were not forthcoming and accordingly the appellant served Form HORT 1 on the driver requiring him to produce the necessary documents at the police station.  These documents relating to Parshan Singh (hereinafter called Parshan) were produced by Parshan at the police station in due course.
On 14 July the appellant saw Parshan at the police station and told him that he, the appellant, was satisfied that Manjit Singh (hereinafter called Manjit) and not Parshan had been the driver of the car on 10 June and that Manjit had given a false name at the scene (presumably because he held no proper driving licence) Parshan had accordingly also been guilty of deception when he produced the documents in answer to the HORT 1 and when he claimed to have been the driver.
On 10 January 1983 Parshan and Manjit duly appeared at Walsall Magistrates’ Court.  Manjit was charged with driving offences and both defendants were charged with offences allegedly committed on 13 June in connection with the production of the driving documents.
Whilst the two Indians were waiting outside the court for the case to be called on, they saw the appellant talking to another police officer, Pc Revelle.  Revelle, it should be said, had no connection with the trial of the two Indians at all.  Revelle left the appellant, came over to the two Indians and asked to see their driving licences.  Parshan produced his.  Manjit did not.  The incident struck the two Indians as being somewhat odd and they reported it to their solicitor.
The hearing started soon afterwards.  The prosecution case depended principally (if not entirely) on the evidence of the appellant to the effect that Manjit and not Parshan was the driver of the car which he had stopped on 10 June.  He was cross-examined on behalf of the two Indians to suggest that his identification of the driver was mistaken.  He was then asked the following questions:

Q. Have you spoken to Pc Revelle this morning?  A. Yes.

Q. Are you aware that Pc Revelle approached my clients this morning and asked to see their driving licences and inspected Parshan’s driving licence, but could not inspect Manjit Singh’s driving licence because he didn’t have it with him?  A. No. [That was a lie.]

Q. Did you ask Pc Revelle to see my clients?  A. No. [That was also a lie.]

Q. Did Pc Revelle talk to you after he had spoken to my clients?  A. No. [That was also a lie.]

Q. Is it not the case that you asked Pc Revelle to see my clients so that you could find out which one was Manjit Singh and which one was Parshan Singh because you were not sure?  A. No.

Q. [This was in re-examination.]  Has there been any sort of conversation between you and Pc Revelle even remotely resembling that suggested to you?  A. No.  [That also was a lie.]’

The matter was investigated.  The appellant eventually admitted the lies and the charges against the two Indians were therefore quite properly dropped.
During the subsequent inquiries the appellant gave as his reason for enlisting the help of Pc Revelle that he suspected Parshan and Manjit were going to try in some way to deceive the magistrates by switching their identities.  It seems that there was some basis for that suspicion.  He wanted to be sure who they were saying they were on that particular day.  When questioned he panicked, hence the lies.
The submissions made to the learned judge were twofold: (1) that there was no prima facie case that the admittedly false statements were made with the requisite guilty mind and (2) that in any event the false statements were not ‘material’ to the proceedings.  As already indicated the judge rejected both submissions.  These submissions have now been repeated before this court.
The basis of counsel’s first submission is that the word ‘wilfully’ requires proof by the prosecution of knowledge or belief by the accused man that the question asked and the answer to be given are material.  No offence is committed, it is submitted, if a person makes a statement even though he knows it to be false and even though it is in law material, if he does so in the honest though mistaken belief that it is not material in that proceeding.  The appellant, it is suggested, believed or may have believed, that the lying answers that he gave were immaterial to the proceedings and if so, it would follow that no offence would have been committed.  In other words the submission is that the prosecution must prove not only that the false statement was made with knowledge of its falsity or lack of belief in its truth, but also that the appellant knew or believed that the false statement was material in the proceeding.
Counsel for the appellant concedes that he has no authority directly bearing on this problem and that this is a point which does not seem to have occurred to anyone in the past.  However that is no reason on its own for rejecting the submission.
It does not seem to us that as a matter of construction the words of s 1(1) of the Perjury Act 1911 can properly bear the meaning which counsel seeks to ascribe to them.  If Parliament had intended that result, it would have been simple to say so, for example by providing that if any person sworn as a witness in a judicial proceeding wilfully makes a statement which he knows to be material in that proceeding and which he knows to be false or does not believe to be true, he shall be guilty of the offence.  Indeed words to this effect can be found in s 1A of the Perjury Act 1911, which was added by Sch 1 to the Evidence (Proceedings in Other Jurisdictions) Act 1975.  It is noteworthy that under s 1A(b) of the Perjury Act a person giving testimony which is false in a material particular commits an offence if he does not believe the testimony to be true whether or not he knows of its materiality.  So, when setting the standard in 1975 for those giving evidence otherwise than on oath, Parliament did not recoil from saying that the materiality of the false statement was something which, at least on occasions, could be viewed objectively.
When seeking to discover the intentions of Parliament in their use of the word ‘wilfully’, it is perhaps instructive to look at s 1(6) of the 1911 Act.  This provides as follows:

‘The question whether a statement on which perjury is assigned was material is a question of law to be determined by the court of trial.’

Looking at s 1 of the Act as a whole, it is clear that the question to which s 1(6) refers can only arise out of s 1(1).  If that subsection means that a statement is only material when the person making it believes it to be so, then s 1(6) is meaningless.  It would be surprising, to say the least, if Parliament intended to say that it was for the judge to decide if the statement was in fact material, and then for the jury to decide if the person making the statement was aware of the materiality.  In other words it seems to us to be unlikely that Parliament should have expressly provided that the question of materiality should be decided as a matter of law by the judge without stating in terms, if such is what they intended, that it would be for the jury to decide whether the defendant believed the statement was material.
Counsel for the appellant did invite our attention to the construction which other courts and some academic writers have attributed to the word ‘wilfully’ when it has been used in connection with other offences such as obstructing a police officer in the execution of his duty (see s 51(3) of the Police Act 1964).  We have carefully considered the various authorities to which our attention has been invited but we do not derive assistance therefrom.
In our judgment the use of the word ‘wilfully’ in this section of the 1911 Act requires the prosecution to prove no more than that the statement was made deliberately and not inadvertently or by mistake.
The second submission is that the lying statements made by the appellant were not material in the proceeding before the justices.  Counsel for the appellant contends that it is the materiality of the truth, if told, which is the question to be decided and that it is only where the truth, if told, would have affected the decision of the magistrates that the requirement of materiality is satisfied.  Here again he cites a number of decisions which he concedes, and we agree, provide examples rather than guidance: for instance, R v Murray (1858) 1 F & F 80, 175 ER 635 and R v Holden (1872) 12 Cox CC 166.
He also draws our attention to R v Sweet-Escott (1971) 55 Cr App R 316.  This was a decision at Devonshire Assizes by Lawton J on the question of materiality in a case brought under the same section of the 1911 Act.  He has this to say (at 320–321):

‘What then is the principle upon which the judge should draw the line? . . . The question arises whether this cross-examination would have affected the decision of the Okehampton Magistrates to commit Miss X for trial had this defendant admitted that he had had those convictions.  In my judgment, it is inconceivable that they would have refused to commit because over twenty years before as a young man he had got into trouble . . .’

This passage is cited by counsel for the appellant as support for his contention that a statement is only material if the truth would have affected the outcome and not if it merely might have done so.  Lawton J was plainly not concerned with that particular distinction in the case he was deciding.
The matter in our judgment was correctly stated by Lord Campbell CJ in R v Lavey 3 Car & Kir 26 at 30, 175 ER 448 at 450, where he directed the jury as follows (it should be noted that this was of course before the provisions of s 1(1) and (6) of the 1911 Act came into existence):

‘You can, I think, have no doubt that she was tried at the Central Criminal Court, and on the question, whether what she falsely swore was material or not, you will consider whether her evidence in this respect might not influence the mind of the judge of the County Court in believing or disbelieving the other statements she made in giving her evidence . . .’

Nor do we subscribe to the view that it is the materiality of the truth, if told, which is in issue, though that in some cases may help to throw light on the materiality of the false statement.  The section is clear.  It is the statement which is made which must be material, in this case the denial that the appellant had enlisted Pc Revelle to make inquiries of the Indians.  Whatever may have been the true reason for that request, the lies told effectively brought to a halt that line of cross-examination, which undoubtedly went to the heart of the case, namely the appellant’s expressed belief that the driver had been Manjit.  The fact that further cross-examination was prevented might very well, it is clear, have affected the outcome of the case.  Even looked at as the appellant asked that we should, the answer would remain the same.  The truth if told would have entailed the admission that the appellant was indeed making inquiries about the respective identity of the two Indians.  Whatever explanation he might have given for this would not alter the fact that the admission itself might very well have affected the justices’ determination of guilt or innocence.
In our judgment in cases under s 1(1) of the Perjury Act 1911 the prosecution have the burden of proving to the requisite standard the following matters: (1) that the witness was lawfully sworn as a witness (2) in a judicial proceeding (3) that the witness made a statement wilfully, that is to say deliberately and not inadvertently or by mistake (4) that that statement was false (5) that the witness knew it was false or did not believe it to be true (6) that the statement was, viewed objectively, material in the judicial proceeding.

This last requirement is, by virtue of s 1(6) of the 1911 Act, a matter to be decided by the judge.
In our judgment the decision of the judge in the present case was correct and this appeal must accordingly be dismissed.

DISPOSITION:
Appeal dismissed.

SOLICITORS:
Director of Public Prosecutions (for the Crown).

Police — Negligence — Duty to take care — Appropriate adult — Plaintiff acting as appropriate adult during interviews of murder suspect considered to be mentally disordered — Plaintiff claiming damages against police for psychological injury — Whether police owing duty of care to plaintiff — Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers: Leach v Chief Constable of Gloucestershire Constabulary COURT OF APPEAL (CIVIL DIVISION) (United Kingdom)

[1999] 1 All ER 215, 46 BMLR 77, [1999] 1 WLR 1421

Leach v Chief Constable of Gloucestershire Constabulary
COURT OF APPEAL (CIVIL DIVISION)
[1999] 1 All ER 215, 46 BMLR 77, [1999] 1 WLR 1421
HEARING-DATES: 4 June, 31 July 1998
31 July 1998
CATCHWORDS:
Police — Negligence — Duty to take care — Appropriate adult — Plaintiff acting as appropriate adult during interviews of murder suspect considered to be mentally disordered — Plaintiff claiming damages against police for psychological injury — Whether police owing duty of care to plaintiff — Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers.

HEADNOTE:
The police decided to interview W, whom they considered to be mentally disordered, about a number of murders committed in particularly harrowing and traumatic circumstances. In accordance with the requirements of the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (Code C) issued by the Secretary of State under s 66 of the Police and Criminal Evidence Act 1984, they asked the plaintiff, a voluntary worker, to attend the police station to act as an appropriate adult during the police interview. She was told nothing of the nature of the case, only that the person to be interviewed was a 52-year-old male. The plaintiff attended as requested and acted as an appropriate adult, sitting in on interviews, accompanying W to scenes of the murders and, on numerous occasions, being locked and left alone in a cell with him. Subsequently the plaintiff claimed that she had suffered post-traumatic stress and psychological injury as well as a stroke by reason of her involvement in the matter, and she brought an action for damages for negligence against the police. She further claimed that she should have been offered counselling during or within a reasonably short time of her exposure to the trauma. The defendant contended that the independent nature of the plaintiff’s role precluded any assumption of responsibility by the police: her task was to advise and assist the person detained and, as such, her special relationship was with him and not the police. The judge struck out her claim for damages, on the basis that it was not just and reasonable in the public interest to impose a duty of care on the police when they were acting at all times within the Codes of Practice and where the plaintiff was performing her role voluntarily. The plaintiff appealed.

Held — (Pill LJ dissenting) The law imposed no duty on the police towards an appropriate adult appointed under Code C to take care to protect that adult from mental or psychological harm. There was no suggestion in Code C that Parliament or the Secretary of State intended that the police should owe a duty towards an appropriate adult. The whole essence of the relationship between the appropriate adult and the police was that they did not assume responsibility towards him in relation to his duties: an appropriate adult was there at the police station to be of assistance and if the police were under a concurrent legal duty to be protective of the appropriate adult’s psychological well-being, they might not be able to do their job of interviewing a suspect effectively. However, the existence of a duty to provide counselling would not interfere with interviews. Accordingly (Pill LJ concurring), the plaintiff’s claim would be allowed to proceed to trial on the issue of failure to provide counselling services. The particulars of claim, so far as they related to the duty of care towards the plaintiff as an appropriate adult, would, though, remain struck out and the appeal would therefore be allowed in part.

NOTES:
For nature of negligence and the duty to take care generally, see 33 Halsbury’s Laws (4th edn reissue) paras 601-605, and for cases on the subject, see 36(1) Digest (2nd reissue) 7-64, 1-325.

For the Police and Criminal Evidence Act 1984, s 66, see 12 Halsbury’s Statutes (4th edn) (1997 reissue) 873.

CASES-REF-TO:

AB v Tameside and Glossop Health Authority (1996) 35 BMLR 79, CA.
Alcock v Chief Constable of the South Yorkshire Police [1991] 4 All ER 907, [1992] 1 AC 310, [1991] 3 WLR 1057, HL.
Alexandrou v Oxford [1993] 4 All ER 328, CA.
Allin v City and Hackney Health Authority [1996] 7 Med LR 167.
Ancell v McDermott [1993] 4 All ER 355, CA.
Attia v British Gas plc [1987] 3 All ER 455, [1988] QB 304, [1987] 3 WLR 1101, CA.
Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605, [1990] 2 WLR 358, HL.
Elguzouli-Daf v Comr of Police of the Metropolis, McBrearty v Ministry of Defence [1995] 1 All ER 833, [1995] QB 335, [1995] 2 WLR 173, CA.
Frost v Chief Constable of the South Yorkshire Police, Duncan v British Coal Corp [1997] 1 All ER 540, [1998] QB 254, [1997] 3 WLR 1194, CA.
Hague v Deputy Governor of Parkhurst Prison, Weldon v Home Office [1991] 3 All ER 733, [1992] 1 AC 58, [1991] 3 WLR 340, HL.
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 2 All ER 575, [1964] AC 465, [1963] 3 WLR 101, HL.
Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238, [1989] AC 53, [1988] 2 WLR 1049, HL.
Hunter v British Coal Corp [1998] 2 All ER 97, [1998] 3 WLR 685, CA.
Kirkham v Chief Constable of the Greater Manchester Police [1990] 3 All ER 246, [1990] 2 QB 283, [1990] 2 WLR 987, CA.
Knightley v Jones [1982] 1 All ER 851, [1982] 1 WLR 349, CA.
McLoughlin v O’Brian [1982] 2 All ER 298, [1983] 1 AC 410, [1982] 2 WLR 982, HL.
Miller v Royal Derwent Hospital Board of Management (29 May 1992, unreported), Aust SC.
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, Aust HC.
Osman v Ferguson [1993] 4 All ER 344, CA.
Page v Smith [1995] 2 All ER 736, [1996] AC 155, [1995] 2 WLR 644, HL.
R v Fagin, ex p Mountstephen [1996] COD 416.
Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985, [1985] 1 WLR 1242.
Robertson v Forth Road Bridge Joint Board, Rough v Forth Road Bridge Joint Board 1995 SCLR 466, Ct of Sess.
Roy v Prior [1970] 2 All ER 729, [1971] AC 470, [1970] 3 WLR 202, HL.
Stovin v Wise (Norfolk CC, third party) [1996] 3 All ER 801, [1996] AC 923, [1996] 3 WLR 388, HL.
Swinney v Chief Constable of the Northumbria Police [1996] 3 All ER 449, [1997] QB 464, [1996] 3 WLR 968, CA.
Tranmore v TE Scudder Ltd [1998] CA Transcript 630.
Walker v Northumberland CC [1995] 1 All ER 737.
Welsh v Chief Constable of the Merseyside Police [1993] 1 All ER 692.
Whitehouse v Jordan [1981] 1 All ER 267, [1981] 1 WLR 246, HL.
X and ors (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorset CC [1995] 3 All ER 353, [1995] 2 AC 633, [1995] 3 WLR 152, HL.
Yuen Kun-yeu v A-G of Hong Kong [1987] 2 All ER 705, [1988] AC 175, [1987] 3 WLR 776, PC.

CASES-CITED:

Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294, [1970] AC 1004, HL.
Schofield v Chief Constable of West Yorkshire (1998) Times, 15 May, [1998] CA Transcript 712.

INTRODUCTION:
The plaintiff, Mrs Janet Leach, appealed from the decision of Judge Batterbury in the Bristol County Court on 17 November 1997, whereby he struck out the plaintiff’s claim for damages for negligence against the defendant, the Chief Constable of Gloucestershire Constabulary, on the ground that the police did not owe the plaintiff a duty of care when acting as an ‘appropriate adult’ in accordance with the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers. The facts are set out in the judgment of Pill LJ.

COUNSEL:
R Denyer QC and J Isherwood for the plaintiff; S Freeland for the defendant.

JUDGMENT-READ:
Cur adv vult 31 July 1998. The following judgments were delivered.

PANEL: HENRY, PILL, BROOKE LJJ

JUDGMENTBY-1: BROOKE LJ

JUDGMENT-1:
BROOKE LJ: The facts for the purposes of this appeal must be taken from the particulars of claim and they must be assumed to be true. They are conveniently set out in the judgment of Pill LJ, and I will not repeat them. Although the pleader averred that the plaintiff was required to remain in attendance, Mr Denyer QC accepted that this word should read ‘requested’ and that she was free to leave at any time. It is clear from the defence that a number of the plaintiff’s allegations will be put in issue, or sought to be set in a different context, at the trial.

As Pill LJ has made clear, the plaintiff contends that because of the history of events he has recounted, she suffered post-traumatic stress and psychological injury, in addition to the stroke she suffered while attending court. It is convenient to put the allegations of negligence she makes against the defendant into three different categories.

The first set of complaints relate to the police’s original request that she should act as an appropriate adult in this case. It is said that it should have been apparent to them that such previous experience as she might have had in the guise of ‘appropriate adult’ on the Young Offenders Project would be limited to juveniles charged, in the main, with minor offences. In those circumstances the police should not have invited her to attend and accompany Mr West over this protracted investigation without any adequate warning of what the case involved. They did not carry out a proper assessment of her suitability for this task, or give proper consideration to the effect that her performance of this role would or might have on her, given that she was an untrained and unqualified voluntary worker whose experience was limited to the young and homeless. They also took insufficient care to ensure that the ‘appropriate adult’ appointed for this task was properly qualified or experienced enough to take it on without risk of mental or psychological harm.

The second group of complaints relates to the fact that she was not offered or provided with counselling and trained support, such as was available to Mr Ogden and his staff, and to the police involved in the case. Such support, it is said, should have been offered or made available to her during the course of her exposure to the trauma she underwent as a result of what she heard and witnessed during the investigation and the interviews.

Finally, it is said that she was falsely advised and assured that she would not have to testify at trial.

These allegations of negligence are summarised as a general failure to make reasonable provision for her health and welfare when it should have been known, from the particularly harrowing and traumatic nature of the offences concerned, that she would be exposed to potentially injurious mental and psychological stress.

Before I turn to the way the judge decided the strike-out application, it is necessary to say something about the arrangements whereby an ‘appropriate adult’ sometimes attends a police station when the police are interviewing someone suspected of crime.

The present arrangements are prescribed by the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (Code C), which was made pursuant to s 66 of the Police and Criminal Evidence Act 1984 (PACE). Pill LJ has set out in his judgment most of the relevant provisions of the second edition of Code C, which was in force in 1994. In addition, para 11.14 provides that a ‘person who is mentally disordered . . . must not be interviewed or asked to provide or sign a written statement in the absence of the appropriate adult’.

Sir Henry Fisher’s report on the Confait case (HC Paper 90 (1977-78)) para 16.4 shows that the arrangements by which a mentally handicapped adult should be interviewed only in the presence of a parent or other person in whose care, custody or control he is, or of some other person who is not a police officer (for example a social worker) were first introduced by means of Home Office circular 109/1976 to chief officers of police, which was issued after consultation with the Lord Chief Justice. The discussion of the similar arrangements in relation to a child or young person at paras 16.26-16.27 of the report shows that their purpose is to ensure that there is some suitable adult person present who is capable of protecting the interests of the vulnerable person who is being interviewed by the police and of being an independent witness of what takes place. The Royal Commission on Criminal Procedure discussed this issue at paras 4.105 to 4.108 of their report (Cmnd 8092 (1981)). It is clear from para 4.108 that they envisaged that an important part of a social worker’s role, when attending as an appropriate adult, was to ensure that the mentally handicapped person understands the questions that are being put to him. By this time the practice was set out in Administrative Direction 4A of the Home Office circular 89/1978 called The Judges’ Rules and Administrative Directions to the Police, and this in turn was subsumed in Code C published under PACE.

The judge held that it was not just and reasonable in the public interest to impose a duty of care on the Gloucestershire police in the circumstances of this case when they were acting at all times within the Codes of Practice. He was clearly influenced by the fact that the plaintiff was performing her role voluntarily, and that it was not being suggested in her pleadings that she ever protested or showed any overt signs of distress or reluctance. He also appears to have been influenced by a passage in the judgment of Lord Hoffmann in Stovin v Wise (Norfolk CC, third party) [1996] 3 All ER 801 at 821, [1996] AC 923 at 946 to the effect that a public authority may have discretionary powers which enable it to do things to achieve a statutory purpose, notwithstanding that they involve a foreseeable risk of damage to others.

On the hearing of this appeal we were shown a number of illustrations of the way in which the courts have decided whether to categorise different types of mishap, or alleged mishap, within the criminal justice system as giving rise to the breach of a duty of care. Most of them were cases in which claims were brought in respect of physical injury or death (Ancell v McDermott [1993] 4 All ER 355, Osman v Ferguson [1993] 4 All ER 344, Kirkham v Chief Constable of the Greater Manchester Police [1990] 3 All ER 246, [1990] 2 QB 283 and Knightley v Johns [1982] 1 All ER 851, [1982] 1 WLR 349), or damage to property, or loss of property (Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985, [1985] 1 WLR 1242 and Alexandrou v Oxford [1993] 4 All ER 328). Two were concerned with loss of liberty (Elguzouli-Daf v Comr of Police of the Metropolis, McBrearty v Ministry of Defence [1995] 1 All ER 833, [1995] QB 335 and Welsh v Chief Constable of the Merseyside Police [1993] 1 All ER 692). In each, the court, after deciding that the type of damage complained of was a reasonably foreseeable consequence of the plaintiff’s acts or omissions, performed the familiar task of determining first whether the necessary relationship of proximity existed, and then whether it was fair, just and reasonable in the public interest to impose a duty of care in the circumstances of the case. In Elguzouli-Daf’s case, where the two plaintiffs complained about their loss of liberty for 22 and 85 days respectively which was allegedly caused by shortcomings on the part of the Crown Prosecution Service, Steyn LJ ([1995] 1 All ER 833 at 842, [1995] QB 335 at 349) said that these two considerations inevitably shaded into each other in the context of those two claims, and it did not seem to him that they could sensibly be considered separately. In the present case the harm alleged is psychiatric injury which was entirely divorced from physical injury, and because in the past this type of claim has been treated as problematical, I consider it appropriate to devote a little attention to it before turning to the principal issues we have to decide.

During the last ten years there have been an increasing number of claims coming before the courts in which plaintiffs have been claiming damages for psychiatric illness caused by the breach of some legal duty it is said that the defendants owed to them, when they have not suffered physical injuries at all. In Page v Smith the House of Lords by a majority ruled that if a duty situation exists, like the duty of a motorist not to cause reasonably foreseeable personal injury to others while he is driving his car, then the old distinction between physical injury and psychiatric injury (not linked with physical injury) no longer forms part of our law. This decision does not, however, help in identifying whether a duty situation exists in any particular context.

Most of the cases in the books are concerned with situations in which a plaintiff suffers psychiatric illness as a result of his own imperilment — as in Page v Smith — or reasonable fear of danger to himself, or as a result of the physical injury or imperilment of a third party (or parties) which has been caused by the defendant. Such claims are now being resolved by the courts on a case by case basis following the guidance given by the House of Lords in Page v Smith and Alcock v Chief Constable of the South Yorkshire Police [1991] 4 All ER 907, [1992] 1 AC 310.

There is, however, a less familiar line of cases in which, as in the present case, a defendant has neither imperilled nor caused physical injury to anyone. One example is Walker v Northumberland CC [1995] 1 All ER 737, where the plaintiff suffered a psychiatric illness caused by stress at work, and Colman J held that he was entitled to recover damages by reason of his employer’s failure to provide him with a safe system of work. There was of course, no difficulty in identifying the existence of such a duty in the context of an employer-employee relationship.

Another example is Attia v British Gas plc [1987] 3 All ER 455, [1988] QB 304, where a plaintiff suffered reasonably foreseeable psychiatric illness as a result of the defendant causing damage to her property: she had to witness her house burning down as a result of the defendants’ negligence. This court declined to strike the claim out, and allowed it to go to trial on the facts.

In addition to these two types of case which can be readily categorised, the Law Commission has identified a miscellaneous group of cases in which recovery may be available for a negligently inflicted psychiatric illness (assuming that the standard elements of the tort of negligence can be made out): see its report, Liability for Psychiatric Illness (Law Com No 249) (1998) para 2.51. These include a case where a patient suffers a psychiatric illness because of negligent treatment by his/her psychiatrist (cf M (a minor) v Newham London BC [1995] 3 All ER 353, [1995] 2 AC 633); where a prisoner foreseeably suffers a psychiatric illness as a result of ill-treatment by prison officers (cf Hague v Deputy Governor of Parkhurst Prison, Weldon v Home Office [1991] 3 All ER 733 at 745-746, [1992] 1 AC 58 at 165-166 per Lord Bridge); and where recipients of distressing news suffer reasonably foreseeable psychiatric illness as a result of the news being broken in an insensitive manner (AB v Tameside and Glossop Health Authority (1996) 35 BMLR 79 and Allin v City and Hackney Health Authority [1996] 7 Med LR 167). These are useful illustrations, but there is not yet any English case of the types described in which it has not been comparatively easy to establish that the requisite duty of care exists, whether from a psychiatrist’s duty to his patient, the Prison Service’s assumption of responsibility for the care of prisoners, or, in the two medical cases I have mentioned, from the defendant health authorities’ acceptance that they owed a relevant duty of care to their patient or former patients. It is noteworthy that in M v Newham London BC (reported sub nom X and ors (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorset CC [1995] 3 All ER 353, [1995] 2 AC 633) the House of Lords declined to recognise a duty of care owed by a local authority or by a psychiatrist retained by the authority towards a child or her parent in the event that the psychiatrist negligently performed his duties of inquiring and reporting on children believed to be at risk.

A case which appears to break new ground, but which was not mentioned by the Law Commission, is Swinney v Chief Constable of the Northumbria Police [1996] 3 All ER 449, [1997] QB 464. The plaintiffs, who were wife and husband, claimed that they were suffering from psychiatric illnesses because they had been threatened with violence and arson after some confidential information furnished by the first plaintiff to the police had been stolen from a police vehicle broken into by criminals. This court did not pay any particular attention to the fact that the claims were for damages for psychiatric illness. It allowed the action to proceed to trial on the facts because it was arguable that the police had assumed responsibility towards the first plaintiff and that there were no policy grounds on which the claim should be barred from proceeding. In evaluating all the public policy considerations that might apply, Peter Gibson LJ ([1996] 3 All ER 449 at 466, [1997] QB 464 at 486) said that it seemed to him plain that the position of a police informer required special consideration from the viewpoint of public policy (see also [1996] 3 All ER 449 at 464, 467, [1997] QB 464 at 484, 487 per Hirst and Ward LJJ).

Swinney’s case illustrates vividly the way in which, after Page v Smith, the courts in future are not going to have their way blocked by some supposed difference in kind between physical injury and psychiatric injury which may ipso facto bar cases of the latter type. On the other hand, where the reasonable foreseeability of harm of a psychiatric nature as a consequence of the defendant’s alleged acts or omissions can be established — as counsel for the police was at first willing to accept as arguable on the facts of the present case, and which I would consider to be arguable — the two other stages of the Caparo test (Caparo Industries plc v Dickman) may well shade together in this type of case, and it may not be sensible to consider them separately. In Stovin v Wise (Norfolk CC, third party) [1996] 3 All ER 801 at 808, [1996] AC 923 at 932 Lord Nicholls of Birkenhead suggested that ‘proximity’ was a slippery word, being a convenient shorthand for a relationship between two parties which makes it fair and reasonable that one should owe the other a duty of care.

I turn now to consider the first set of complaints to which I have referred. These are contained in paras (a), (b), (c) and (g) of the particulars of negligence. As the judge correctly observed, the plaintiff did not have to involve herself in the obligations of an appropriate adult. She agreed to do so, and she could have stopped doing so at any time. Indeed, Mr Denyer accepted that she had in fact been replaced for a short period, but had resumed her duties willingly when Mr West asked that she should come back. As the written agreement made clear, and as was indeed the case, she was not in an employer/employee relationship with the police: indeed she would not have been qualified to act as an appropriate adult if she had been (see Code C, para 1.7). I do not consider that there is anything in the language of the confidentiality agreement, which simply reflected the existence of a duty of confidentiality already imposed by the general law, that could create a duty of care which did not otherwise exist.

In my judgment, there are strong reasons of a policy nature why the law should not impose on the police a duty towards an appropriate adult to take care to protect her from the kind of harm of which the plaintiff complains in this case. It must be remembered that the potential beneficiaries of such a duty would constitute a very wide class. They would include the parents or guardians of any juvenile, or the relative, guardian or other person responsible for anyone who is mentally disordered or mentally handicapped, or, if there is nobody suitable in this category or in the categories of social worker mentioned in para 1.7(a)(ii) and (b)(ii) of Code C, any responsible adult over 18 (other than police officers or those employed by the police) who agrees to do the job. Many parents, guardians and relatives are likely to be in an anxious, nervous state when they come to the police station to perform their role as appropriate adults, and although the crimes imputed to Frederick West were particularly revolting, the police often have to investigate fairly unpleasant activities. I do not know how it could be envisaged that they should fulfil their role if they owed a duty to the appropriate adult of the type for which the plaintiff contends, or how the courts could readily distinguish on the facts of any particular case those adults to whom such a duty is owed from those to whom it is not owed.

Although the requirements of Code C are not enforceable by mandamus (cf PACE s 67(10)), Parliament decided that they were so important that they should not be introduced without a positive resolution of both Houses (s 67(4)) and it used a subtler mechanism for ensuring that the police recognised that their task of obtaining evidence likely to lead to the conviction of alleged offenders would be impeded if they did not comply with requirements of the codes (see s 67(11)). In other words, the police are for all practical purposes obliged to ensure that an appropriate adult is present, although that person will not be performing her independent duties in any sense as an agent for the police.

In his judgment Pill LJ suggests that it would be legitimate to limit the ambit of our decision in this case to those mentioned in para 1.7(b)(iii) of Code C (‘some other responsible adult aged 18 or over who is not a police officer or employed by the police’) and to leave for decision on some future occasion or occasions the question whether the police owe a similar legal duty, which nobody has ever previously identified or, so far as I am aware, suggested, to those in categories (i) and (ii) (a relative etc, or someone who has experience of dealing with mentally disordered people). In the meantime the police would be left in a state of complete uncertainty. They would not know what they are obliged to do in order to comply with their legal duty in relation to category (iii), and it is difficult to see any very logical reason why they should not behave in the same way towards those in categories (i) and (ii), at any rate in relation to their conduct during questioning or visits to the scenes of crimes.

There is no trace of any suggestion in Code C that Parliament or the Secretary of State intended that the police should owe a duty towards an appropriate adult of the type suggested by Mr Denyer. The independence of the appropriate adult is an essential part of her function. She is not formally selected, paid or employed by the police, and they have no power to secure that she be replaced: in the event of an irreconcilable dispute a court, and not a police-appointed authority would have to rule that she could no longer be properly regarded as appropriate. Note for Guidance 1E in Code C, indeed, includes the suggestion that it may in certain circumstances be more satisfactory for all concerned if the appropriate adult (in the case of mentally disordered persons) is someone who has experience or training in their care rather than a relative lacking such qualifications, but if the person himself prefers a relative to a better qualified stranger, the Note for Guidance prescribes that his wishes should, if practicable, be respected.

In a number of cases liability is found to arise because the defendants assumed responsibility vis-a-vis the plaintiff in a relevant respect. Examples in this field include the relationship between the police and a police informer in relation to the security of the information entrusted to police care (Swinney’s case), the relationship between the police and someone they detain in custody and hand over to the custody of the prison service in relation to information about his known suicidal tendencies (Kirkham’s case), and the relationship between the Crown Prosecution Service and an offender in relation to information that his responsibility in respect of a pending charge has been admitted and taken into consideration at a Crown Court, so that he was no longer in jeopardy in respect of that charge before magistrates (Welsh’s case). In my judgment the whole essence of the present plaintiff’s relationship to the police is that they did not assume responsibility towards her in relation to her duties as appropriate adult. She was there at the police station to be of assistance to Mr West, and the police might not be able to do their job of interviewing Mr West effectively if they were under a concurrent legal duty to be protective of the plaintiff’s psychological well-being.

It must be remembered that if a duty of care is found to exist, it would be a duty to take reasonable care not to do reasonably foreseeable injury to the mind of the person to whom the duty is owed. When considering foreseeability, that person, if nothing more is known about him, must be assumed to be a person of customary phlegm, but if the duty is broken, the victim would be treated as a primary victim, and if the victim in fact has an ‘eggshell mind’, then the police would be liable for all the harm suffered by a person with a mind in such a state (see Page v Smith [1995] 2 All ER 736 at 756-760, [1996] AC 155 at 185-190 per Lord Lloyd of Berwick) unless some different rules are introduced on policy grounds for some of the cases in the Law Commission’s third category, as compared with the rules we now have to use for primary victims who are directly imperilled in an accident.

A further problem is connected with the standard of care the courts should apply in determining whether the alleged duty is broken. Judges have no particular expertise in deciding what should or should not be done to avoid the sort of stressor which may trigger off an identifiable psychiatric illness, and counsel did not suggest that there was any repository of wisdom to which the police might have access in order to know what they should do to order to comply with their suggested new legal duty. In cases involving professional men and women the courts will customarily apply the contemporary standard of care accepted as proper by a responsible body of professional people practising in the field in question (Whitehouse v Jordan [1981] 1 All ER 267, [1981] 1 WLR 246). If a duty of care exists, and there is no body of opinion to which the court should look, it will have to apply what it considers to be an appropriate standard, drawn no doubt from the evidence it receives in the particular case it is deciding (see AB v Tameside and Glossop Health Authority (1996) 35 BMLR 79 at 93 per Brooke LJ). It is not very satisfactory to develop the law in a novel field on such possibly unreliable foundations.

Counsel told us that they had not been able to identify any case in any common law jurisdiction which suggested that a legal duty of care might exist in a situation of this kind, so that there would be no model code on which the courts could draw. A hypothetical code of acceptable practice could not be limited to a duty to provide counselling, because if counselling is necessary, foreseeable harm may already have been done. It would have to involve vetting whether the responsible adult is sufficiently robust to withstand exposure to what may be distasteful and shocking details, because the police, saddled with their new legal duty, would wish to have the right to vet the person in question or to relieve her of her responsibilities even if she had won the trust of the person being questioned. This new right of police veto might well militate against the public interest, since a sensitive person, as contrasted with a rather unimaginative, hard-boiled personality, might generally be thought more appropriate for this task, and the code itself suggests that the choice of the appropriate adult should ultimately be one for the person being questioned, not for the police. I had a comparable worry when I was concerned with a case in which free-standing psychiatric injury had been accepted as a means of qualifying for a police pension (see R v Fagin, ex p Mountstephen [1996] COD 416) because it appeared to me that the ramifications of an obligation to pay a pension to a policeman who retired early due to stress-related psychiatric illness, even if he had an eggshell personality when he entered police service, might not have been properly thought out.

I do not derive any assistance at all from the thought that there were well-established duties of care which the police undoubtedly owed to the plaintiff, just as they owed them to anybody else who was foreseeably at risk of personal injury: for instance the occupier’s duty of care to ensure, so far as was reasonable, that the chair she sat on did not collapse, or a duty of care to do what was reasonable to protect her from physical attack by someone in police custody. Where I part company from Pill LJ is that he sees no sensible distinction between the latter situation and the situation with which we are concerned in the present case.

The reason why I see a clear distinction is that in the present case the harm from which the police are said to be under a duty to protect her is harm to her mind, and the history of English law over the last 100 years has shown that this is a highly charged policy area. In my judgment, in our hierarchy of courts it is for the House of Lords to take any new policy decisions in this field, if it is considered to be an appropriate subject for judicial law-making at all, and not for this court (compare the similar approach of this court in the two recent cases of Hunter v British Coal Corp [1998] 2 All ER 97, [1998] 3 WLR 685 and Tranmore v TE Scudder Ltd [1998] CA Transcript 630. See also the difficulties the House of Lords experienced in deciding how policy considerations should stake out the limits of the law in the ‘secondary victim’ case of McLoughlin v O’Brian [1982] 2 All ER 298, [1983] AC 410).

Three years at the Law Commission taught me the very great practical problems that are created when judges, out of sympathy for a particular plaintiff, identify the existence of a quite new duty of care scenario without spelling out what is required to comply with that duty except the vague aspiration that the details may be filled out on a case by case basis hereafter. I have no difficulty in concluding from the story of this case that it would be very desirable for the Home Secretary to initiate consultation about the guidance which should be given to the police in relation to their selection and treatment of appropriate adults, since Code C is at present rather short of details on these matters. The Gloucestershire police already appear to think that they have power to provide counselling at taxpayers’ expense to the solicitor acting for a person being questioned, but as with all items of expenditure from public funds it would be desirable to make this power explicit, if it exists, and to set out the criteria which should control its exercise. For this court to go further than this and to create a new, rather vaguely defined legal duty where none has been perceived to exist before would, in my judgment, not be helpful. The House of Lords, indeed, would be likely to receive the benefit of a much wider range of information to enable them to make policy choices than was available to us.

I am conscious that the House of Lords has repeatedly stated that a plaintiff’s claim should not be struck out unless it is clear and obvious that in law the claim cannot succeed. Where the law is not settled but is in a state of development, it is normally inappropriate to decide novel questions on hypothetical facts (X and ors (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorset CC [1995] 3 All ER 353 at 372-373, [1995] 2 AC 633 at 730-741 per Lord Browne-Wilkinson). In my judgment we are in just as good a position now as we would be at the end of a contested trial to decide the policy question which will be determinative of liability on the first set of complaints. I therefore agree with the judge that paras (a), (b), (c) and (g) of the particulars of claim should be struck out. I also agree with Henry LJ that we should grant liberty to apply to restore sub-para (g) if the plaintiff’s counsel wishes to do so for any reason at the trial.

As to the second set of complaints, which are set out in paras (d) and (e) of the particulars of claim, I do not consider that the fact that the police provided counselling for Mr West’s solicitor and his staff — precisely what they did in relation to the plaintiff is in issue between the parties, but for present purposes we must assume that she did not receive this service — takes the matter any further forward. Mr Denyer accepted that the police owed no legal duty towards Mr West’s solicitor of the type he contends for in respect of his own client, and unfortunate though it is if the plaintiff’s complaint in this respect is well founded, I am very doubtful whether this disparity of treatment could give rise to a legal duty which did not otherwise exist. I have, however, read the judgment of Henry LJ, and I do not dissent from his view that this part of the plaintiff’s claim should be allowed to proceed to trial on these issues, in order that the facts may be definitively established before a court makes a final ruling on the questions whether a duty of care did exist in the circumstances established at the trial, what form it took, and whether it was broken. I would therefore be willing to allow the appeal to the extent that paras (d) and (e) of the particulars of negligence are restored to the particulars of claim.

As to the final complaint, which is contained in para (f) of the particulars of negligence, Mr Denyer did not suggest to us that if his client’s claim was unsustainable on the basis that the police owed her no duty of care to protect her from reasonably foreseeable psychiatric injuries while acting as an appropriate adult, she had a free-standing cause of action in negligence in relation to the allegation that she was falsely advised and assured that she would not have to testify at trial. Although it is easy to imagine circumstances in which carelessness by the police in giving false information on which a plaintiff relied to her detriment might found liability, irrespective of the wider issues raised by this case, it is unnecessary to examine this question in view of the manner in which Mr Denyer argued his case. It appears to me that he was correct to confine his argument in this way, because the nature of the plaintiff’s relationship to the police would have been an essential starting-point for any inquiry as to whether she was owed a Hedley Byrne duty (see Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 2 All ER 575, [1964] AC 465) in relation to this particular statement. Because she was as a matter of law independent of the police, it is easier to see that she could have been owed no such duty in relation to a matter over which the police would have had no control. I therefore agree with the judge that paragraph (f) of the particulars of negligence should be struck out.

For these reasons the judge was in my judgment correct to decide this application in the way he did, save for paras (d) and (e) of the particulars of negligence, which I would be content to see restored to the particulars of claim, along with paras 1-6 and 8-9. To that extent only I would allow the appeal.

JUDGMENTBY-2: HENRY LJ

JUDGMENT-2:
HENRY LJ: Defendants often do themselves no favours when they attempt to strike the plaintiff’s statement of claim under RSC Ord 18, r 19. This is because such applications commonly (and certainly here) have to be decided on inadequate facts and untested but implausible factual assumptions. In this appeal the inadequacy of the factual basis is demonstrated by the fact that we have not seen the transcripts of Frederick West’s interviews with the police, nor even any summary of them. Nor have we seen any medical reports in relation to the plaintiff, nor any medical opinion on causation and foreseeability. Yet problems of foreseeability and causation are normally central in any case where the damage alleged is psychiatric. But for our purposes we must assume, however sceptically, that foreseeability will be established.

Though the case concerns psychiatric damage, it is not the normal psychiatric damage case. That is to say, it is not a case which involved either a near-accident to the plaintiff, nor the plaintiff witnessing an accident or anticipated accident to another, nor its aftermath, nor being told of such an accident. Nor is it a case where the stressing or distressing factor was caused by the negligence of the defendant. That factor was whatever it was that Frederick West said in interview in answer to the questions lawfully asked of him by the police officers who interrogated him under the regime laid down by the Police and Criminal Evidence Act 1984, and the codes approved by Parliament.

In their interviews of Frederick West, the police were playing an important part in their investigative process — important for the person questioned, important for the police, and important for the public interest in the openness and fairness of the judicial process. The safeguards to ensure the integrity of the process are laid down in the Act and in the codes. In the case of an adult offender, where there is any suspicion that he or she might be mentally disordered, then the custody officer must ensure that an ‘appropriate adult’ (AA) is in place. That AA is there for the protection of the suspect. His presence is, as a general rule, necessary at any interview even though (as was the case here) the accused’s solicitor is present. Other police officers or employees of the police are disqualified from performing the role. The role requires independent judgment — the AA is there to advise the person questioned, to see that the interview is being conducted properly and fairly, and to ensure that the person understands the questions. For the purpose of the interview, he is there to assist and advise the person questioned who must be informed that he can consult privately with the AA at any time. The person questioned may object to the AA, or express a preference for another, and the notes to the code reflect that some regard should be paid to the accused’s expressed preference (as here was, when the plaintiff voluntarily resumed her role as AA).

In their conduct of these interviews the police are performing an important part of their public duty in the investigation of crime. So this is a case where public policy may properly ‘confine the duty of care within narrower limits than those which would be defined by an unqualified acceptance of the neighbour principle’ (see Lord Keith in Yuen Kun-yeu v A-G of Hong Kong [1987] 2 All ER 705 at 710, [1988] AC 175 at 191, quoting Brennan J in the High Court of Australia). Lord Keith expanded on this immunity in Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238 at 243-244, [1989] AC 53 at 63-64. There he details the public policy immunity from suit enjoyed by the police. For the reasons there set out it seems to me to be quite clear that the police could successfully rely on that public policy defence to defeat any claim against them in negligence in the way in which they chose to carry out their interviews in their investigative role. As will be seen when we come to the pleadings, the plaintiff does not assert negligence in the conduct of the interviews. Had such a case been made, the public policy defence would have defeated it.

But, as Lord Wilberforce put it in Roy v Prior [1970] 2 All ER 729 at 736, [1971] AC 470 at 480: ‘Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest.’

Accordingly, that public policy immunity must be checked against the public interest. Against that background I come to the pleaded case.

The criticisms made of the defendants are set out in the particulars of negligence already cited by Pill LJ. The provisions of Ord 18, r 19 make it clear that ‘anything’ in a pleading may be struck out if ‘it discloses no reasonable cause of action’. Here the defendants sought and succeeded in striking out the whole action, but it lies within the powers of this court to effect a partial strike-out. And that is what I believe to be appropriate in this appeal.

Of the particulars of negligence (a), (b) and (c), all complain that the plaintiff should not have been invited to become nor accepted as the AA without warning as to the nature of the case, and assessment of her suitability for the role as to whether she was properly qualified and/or ‘experienced’ enough to take on the role ‘without risk of mental or psychological harm’.

It seems to me clear that no such duty of pre-selection lies. First, if Parliament had wished AAs to be limited to those experienced in dealing with mental illness, they would have so restricted the field. But they wished the field to be wider.

Second, as we can only guess at the future, no one knew what form the interviews would take. There would not seem to be much risk, even to the most susceptible psyche, in a ‘no comment’ interview.

Third, being the AA is a voluntary, unpaid task, not a contractual obligation. As Mr Denyer QC acknowledged, though his pleading alleges that Mrs Leach was ‘required’ to attend, in fact she was ‘requested’, and could have stopped at any time. If at any time she had found the interviews in any way distressing, she could have walked out and brought the interview to an end. Where the AA retains such a power, in my judgment there is little point in a rigorous selection procedure for an unpredictable occurrence.

Fourth, public policy militates against there being pressure on the police to act defensively, and to restrict their approaches to act as to AAs to the hardened and cynical.

Therefore, in my judgment the police may rely on their public service immunity to defeat claims made against them in relation to both the conduct of the interviews, and in the choice of appropriate adult. In my judgment the police should not be required to act defensively to avoid claims either in their approaches to individuals to see if they will act as AAs, or in the conduct of their interviews. That would not be in the public interest. Therefore I would strike out paras (a), (b) and (c) of the particulars of negligence.

The next head of claim in the particulars of negligence presents more difficulties:

‘(d) No counselling or trained help and support was offered or made available to the plaintiff during and/or within a reasonably short time of her exposure to the trauma undergone as a result of what she heard and witnessed during the investigation and interviews described.’

I start with the Australian case of Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383. The psychiatric injury had been sustained by an employee plaintiff, who went to the assistance of two fellow employees, who had been badly burnt. There Windeyer J, having earlier wryly commented that in psychiatric damage cases the law marches with medicine, but ‘in the rear and limping a little’ (at 395), went on to say (at 404): ‘Foreseeable harm caused by a master to the mind of his servant is just as much a breach of his duty of care to him as harm to his body would be.’

Since then there has been no doubt as to the validity in appropriate cases, where proximity is established, of that proposition. That was of course a case involving a horrific accident, but the employer may be equally liable for psychiatric damage caused by the employee’s work-load where there is no such shocking trigger event — see Walker v Northumberland CC [1995] 1 All ER 737.

It is pleaded in the statement of claim that ‘the Defendant’s officers on the case were offered counselling in the course of and as a result of their involvement with the case’. For an analogous case see Miller v Royal Derwent Hospital Board of Management (29 May 1992, unreported) — for which I am grateful to the editors of Mullany and Handford Tort Liability for Psychiatric Damage (1993).

There, though the claim failed on forseeability and causation, it seems that the court was prepared to assume that the employer might owe his employee such a duty.

For Ord 18, r 19 purposes I can safely assume that in offering such counselling the police, as employers very familiar with psychiatric stressors in the forms of horrific accidents and natural disasters, recognise a general duty to take all reasonable steps to protect their employees from harm, including psychiatric harm.

Now the plaintiff was not their employee, nor was she allowed to be their employee. But though a volunteer free to leave at any time, she was there at their request and going through whatever the interviewing officers (and we know not whether they had counselling) were going through. In my judgment she would clearly (but for the public service immunity) satisfy the proximity test. Though her presence was voluntary, it was of assistance to the police in their task, because they could not conduct their interviews without an AA, and she clearly enjoyed Frederick West’s trust.

But does the public service immunity argument offer a defence? In my judgment it clearly does not because the existence of a duty where appropriate to offer and provide counselling to AAs in no way hampers or interferes with the police’s discretion as to the content and number of interviews. Their investigative process remains unaffected. There is no reason for the immunity to operate. So I would not strike out either particulars (d) or (e). Particular (g) is a sweep-up allegation. If it were widened to extend beyond the offer and provision of counselling it might conceivably interfere with the interview process. I would strike it out on the basis that (d) and (e) cover counselling, with liberty to apply to the judge responsible for the case.

No reliance on particular (f) was before us. Even if required by the rules governing this application to assume any such thing happened, the chief constable would not be vicariously liable for any such statement. I would strike it out.

For the avoidance of doubt, and in agreement with Brooke LJ, in my judgment the so-called confidentiality agreement is irrelevant to the matters I have had to consider.

In so far as Pill LJ’s judgment does not strike out particulars of negligence (a), (b), (c), (f) and (g) as qualified, I disagree with it for the reasons set out above, and agree with that of Brooke LJ.

Accordingly, I would allow this appeal to the extent of restoring the particulars of claim, with particulars (a), (b), (c), (f) and (g) deleted from the pleading.

DISSENTBY-1: PILL LJ

DISSENT-JDGMT-1:
PILL LJ (giving the first judgment at the invitation of Henry LJ): On 17 November 1997 Judge Batterbury struck out Mrs Janet Leach’s claim for damages against the Chief Constable of Gloucestershire. The plaintiff appeals against that striking out and the issue for this court, as expressed by the defendant in the written submissions made on his behalf, is ‘whether the learned Judge was correct in holding that on the matters set out in the particulars of claim the defendant did not owe the plaintiff a duty of care’.

On 25 February 1994 the plaintiff, then a voluntary worker on the Young Homeless Project in Cheltenham and 38 years old, was asked by a police officer in the Gloucestershire force to attend Bearland police station to act as what is described in the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (Code C) issued by the Secretary of State under s 66 of the Police and Criminal Evidence Act 1984 as an ‘appropriate adult’ during a police interview at the station. She was told only that the person to be interviewed was a 52-year-old male. In fact, the particulars of claim continue, ‘it was one Frederick West who was about to be questioned about a number of murders committed in particularly harrowing and traumatic circumstances’. She had been told nothing about the nature of the case. The police had formed the view that West was mentally disordered so that Code C required the presence at interview of an appropriate adult.

On that day and for many weeks thereafter, the plaintiff acted as ‘an appropriate adult’ ‘sitting in on interviews, accompanying him [West] to scenes of the murders he had committed and, on numerous occasions, being locked and left alone in a cell with him’. It is common ground that on 24 March 1994 the plaintiff signed, at the request of police officers, a confidentiality agreement, which I will set out. Had she declined to sign, she could not have continued to act as an appropriate adult. The plaintiff claims that she was not offered counselling or support until January 1995 after West had committed suicide in custody. The plaintiff subsequently gave evidence at the trial for murder of Rosemary West, wife of Frederick. The plaintiff claims that, by reason of her involvement in the matter, she has suffered post-traumatic stress and psychological injury as well as a stroke.

Further particulars of the particulars of claim have not been sought and the present application is to be considered on the basis of that pleading but it is common ground that the plaintiff attended very many interviews, about forty, as an appropriate adult between 25 February and 24 March 1994 and again between 13 April and 5 May 1994. The West case is notorious amongst modern crimes and it is inconceivable that the police officers concerned were unaware during most if not all of that period that they were dealing with a particularly harrowing case involving allegations of mass murder. That must have been obvious at an early stage of their inquiries. The plaintiff alleges that West’s solicitor (Mr Ogden) and his staff as well as the defendant’s officers on the case were offered counselling in the course of and as a result of their involvement with the case.

The allegations of negligence are:

‘(a) she was caused and/or permitted to attend and accompany Frederick West over the course of the protracted investigation described without adequate or any warning of what the case involved, when it was or ought to have been apparent that such previous experience as she may have had in the guise of “appropriate adult” on the Young Homeless Project would be limited to juveniles charged, in the main, with minor offences; (b) there was no proper assessment of the Plaintiff’s suitability for the task described nor due or any consideration given to the effect that attending and accompanying West in the manner herein described at paragraph 3 would or might have on her, as an untrained/unqualified voluntary worker whose experience was limited to the young and homeless; (c) insufficient care was taken to ensure that the “appropriate adult” caused or permitted to attend and accompany the said West was properly qualified and/or experienced enough to take on the role without risk of mental or psychological harm; (d) no counselling or trained help and support was offered or made available to the Plaintiff during and/or within a reasonably short time of her exposure to the trauma undergone as a result of what she heard and witnessed during the investigation and interviews described; (e) the counselling and trained support available to Mr Ogden, his staff and the Defendant’s officers on the case was not provided for or offered to the Plaintiff; (f) the Plaintiff was falsely advised and assured that she would not have to testify at trial; (g) there was in the premises a failure to make reasonable provision for the health and welfare of the Plaintiff during and as a result of her involvement in the said case when it was or ought to have been known from the particularly harrowing and traumatic nature of the offences concerned that she would be exposed to potentially injurious mental and psychological stress.’

The confidentiality agreement provides:

‘THIS AGREEMENT dated 24-03-94 is made BETWEEN:- (1) The Gloucestershire Constabulary (“the Constabulary”) of Divisional Police Headquarters, Bearland, Gloucester, and (2) Mrs Janet Leach (“the Appropriate Adult”) of 11 Elm Grove Road, Hucclecote, Gloucester.

WHEREBY IT IS AGREED as follows . . .

(3) Definitions “the Appointment” the appointment of the appropriate adult pursuant to the terms of this Agreement “the Constabulary” the Police Force for Gloucestershire “the Appropriate Adult” the person appointed by the Constabulary for the specific purpose of attending interviews as an “observer”.

(4) Purpose of this Agreement The agreement is for the appointment of an Appropriate Adult for the specific purpose of attending interviews as an “observer” conducted by the Constabulary pursuant to their investigation into the alleged crimes perpetrated by Mr Frederick Walter Stephen West of 25 Cromwell Street, Gloucester or any matters arising from or connected thereto.

(5) Date of Agreement This Agreement shall be of no effect until it has been signed by or on behalf of both parties and it is agreed that the terms of this Agreement shall have effect from the date on which the Appropriate Adult was appointed in that capacity as specified in Clause 6.

(6) Period of Appointment The Appointment shall commence on or be deemed to have commenced on 25 February 1994.

(7) Appropriate Adult’s obligations The Appropriate Adult shall attend such interviews and act as an observer as requested by the Constabulary.

(8) Confidentiality In order to protect the confidentiality of notes photographs, plans or other written or spoken information however stored which the Appropriate Adult may have acquired during her appointment and without prejudice to every other duty to keep secret all information given to the Appropriate Adult or gained in confidence or acquired during the Appointment the Appropriate Adult agrees that any such information is confidential and will not either during the Appointment or after its termination disclose to anyone and will use the Appropriate Adult’s best endeavours to prevent the disclosure to anyone of any confidential information concerning all matters heard or disclosed to the Appropriate Adult during interviews and all ancillary discussions including all meetings and discussions which may take place between the Appropriate Adult Mr West and his defence Solicitor or nominated agent in the absence of a member of the Constabulary. The Appropriate Adult will not at any time make any copy abstract summary or precis of the whole of part of any information document or photograph relating to any details acquired during the period of appointment. Any such copy abstract summary or precis of the whole or part of any information document of photograph prepared in breach of the provision shall belong to the Constabulary and should be immediately given over to the Constabulary when so directed by the Constabulary. The Appropriate Adult shall therefore not disseminate during the period of this agreement or after its termination any such information without the written permission of the Constabulary.

(9) Criminal Law Without prejudice to any other duty and remedy implied by law, equity and the terms of this Agreement the Appropriate Adult acknowledges potential liability for prosecution under the Criminal Law for breach of this Agreement.

(10) Effect of Termination The termination of the Appointment shall be without prejudice to any right the Constabulary may have in respect of any breach by the Appropriate Adult of any of the provisions of this Agreement which may have occurred both prior to and after such termination.

(11) Status of Agreement Nothing in this Agreement is intended to create an Employer and Employee relationship and the Appropriate Adult acknowledges that no express or implied duties are owed by the Constabulary to the Appropriate Adult.

(12) The Appropriate Adult acknowledges that she is under an express duty not to disseminate any information as specified in Clause (8) acquired during this Agreement or after its termination in the Course of her specific duty.

(13) The Constabulary acknowledges that this Agreement should not affect the independence of the Appropriate Adult in performing her appropriate task and is intended to protect the confidentiality of information as specified in Clause (8).’

The agreement was signed by the plaintiff and by an officer for and on behalf of the Gloucestershire Constabulary. It is deemed to have commenced on the date of the first interview. While effects of termination are set out, there is no provision dealing with the manner of termination.

The judge’s conclusion was:

‘All in all, having to consider, as I must, whether it is just and reasonable in the public interest to impose a duty of care on the Gloucestershire police whilst they were exercising their duties under the statutory codes of practice, I regret from the plaintiff’s point of view that I am not persuaded that it is thus just and reasonable. There is no duty of care in this case made out upon the pleaded facts, and to that extent the application [to strike out] must succeed.’

The sole issue is therefore whether in the circumstances the defendant owed the plaintiff a duty of care. In making his submissions on that issue, Mr Freeland for the defendant, adopted the approach of Steyn LJ in Elguzouli-Daf v Comr of Police of the Metropolis, McBrearty v Ministry of Defence [1995] 1 All ER 833 at 839, [1995] QB 335 at 345 (following Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605):

‘We must consider the ultimate question from three perspectives, namely (a) the foreseeability of the harm that ensues, (b) the nature of the relationship between the parties, usually called the element of proximity, and (c) the question whether it is fair, just and reasonable that the law should impose a duty of care.’

Foreseeability must be considered in relation to the claim alleged which in this case is post-traumatic stress, psychological injury and a stroke. The learned judge noted that no point had been taken in relation to appropriate medical reports.

Mr Freeland made his oral submissions on the basis that it was arguable that psychiatric harm was foreseeable and the case turned on points (b) and (c) identified by Steyn LJ. At the end of his submissions, Mr Freeland withdrew his concession on the ground that it might be misunderstood. Further particulars were declined. In my judgment, Mr Freeland was right to make his submissions on points (b) and (c). Forseeability of the risk of psychiatric harm to an untrained person present at the West interviews is in my view plainly arguable.

I do of course accept that the elements identified by Steyn LJ must be considered in relation to each other. Mr Denyer QC, for the plaintiff, did not propose a different approach to the question. I respectfully agree with the approach of Steyn LJ as appropriate to test whether, in present circumstances, a duty of care exists.

It is necessary to refer to the Codes of Practice under the 1984 Act, as did the judge. In doing so, it is important to have regard to the purpose of the codes. They are issued by the Secretary of State pursuant to his duty under s 66 of the 1984 Act (subject to approval by resolution of each House of Parliament under s 67(5)). Code C is the ‘Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers’. Its purpose is to provide a fair and effective procedure for that purpose. It is not to regulate the duties inter se under the civil law of all those involved in the procedures. The question is not one which arose in such cases as X and ors (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorset CC [1995] 3 All ER 353, [1995] 2 AC 633, that is whether a common law duty to a person exists in parallel with the authority’s statutory obligations. The code is not concerned to create, negate or define statutory duties to appropriate adults.

Code C provides:

‘. . . 1.4 If an officer has any suspicion . . . that a person of any age may be mentally disordered . . . then that person shall be treated as a mentally disordered . . . person for the purposes of this code . . .

1.7 In this code “the appropriate adult” means . . . (b) in the case of a person who is mentally disordered . . . (i) a relative, guardian or other person responsible for his care or custody; (ii) someone who has experience of dealing with mentally disordered . . . people . . . (iii) failing either of the above, some other responsible adult aged 18 or over who is not a police officer or employed by the police . . .

3.9 If the person is . . . suffering from a mental disorder, then the custody officer must, as soon as practicable, inform the appropriate adult . . . of the grounds for his detention and his whereabouts and ask the adult to come to the police station to see the person . . .

3.12 The person shall be advised by the custody officer that the appropriate adult (where applicable) is there to assist and advise him and that he can consult privately with the appropriate adult at any time.’

Under the heading ‘notes for guidance’ it is stated:

‘1E In the case of people who are mentally disordered . . . it may in certain circumstances be more satisfactory for all concerned if the appropriate adult is someone who has experience or training in their care rather than a relative lacking such qualifications. But if the person himself prefers a relative to a better qualified stranger or objects to a particular person as the appropriate adult, his wishes should if practicable be respected . . .

11.16 Where the appropriate adult is present at an interview, he shall be informed that he is not expected to act simply as an observer; and also that the purposes of his presence are, first, to advise the person being questioned and to observe whether or not the interview is being conducted properly and fairly, and secondly, to facilitate communication with the person being interviewed.’

The plaintiff was requested to attend at interview as ‘some other responsible adult’ under para 1.7(b)(iii). I propose to consider the position of such a person, that is, a member of the public unrelated to the mentally disordered person and without experience of dealing with mentally disordered people. Different considerations may apply if a relative attends or, for example, a trained social worker employed by a local authority.

For the defendant, Mr Freeland submits first that the plaintiff had no special relationship with the police, as distinct from a special relationship with West, such that the police assumed responsibility for her welfare. The independent nature of her role positively precluded any assumption of responsibility by the defendant. Her task was to advise the defendant, to observe whether the interview was proper and fair and to intervene if she thought necessary. Because she was present to advise and assist the person detained and not the police, her special relationship was with him and not with them. Mr Freeland accepts that there can be an assumption of responsibility without police officers expressly saying that they assume responsibility but he submits that the relationship must be such that the assumption of responsibility must inevitably be inferred.

Mr Freeland also relies on the fact that the plaintiff was not remunerated for her services and the degree of control over her was negligible. She could not be forced to attend interviews and the absence of compulsion prevented the plaintiff from establishing an assumption of responsibility.

The defendant’s second submission, and it is the one which found favour with the learned judge, is that it was not fair, just and reasonable in the public interest for a duty of care to exist. It is submitted that the existence of the claimed duty would impinge on the defendant’s ability to investigate crime. The existence of a duty to the plaintiff could conflict with the performance of the duty to investigate crime, for example by requiring curtailment of an interview or by otherwise distracting officers from their investigation. The existence of the duty might lead to an undesirable diversion of resources. Further, the independence of the appropriate adult might be compromised. It is also submitted that, if there is a duty to the appropriate adult, as defined in the code, it would follow that a duty is owed to others at the interview, for example a relative of the person being questioned or his legal advisers. The law ought not to impose such responsibilities on the police. It is further submitted that the defendant can rely upon the silence of the code on the question of duties to the appropriate adult to refute the existence of a duty.

In my judgment this case must be distinguished from those, such as Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238, [1989] AC 53, Alexandrou v Oxford [1993] 4 All ER 328 and Osman v Ferguson [1993] 4 All ER 344 in which members of the public who are victims of crime have sought unsuccessfully to establish a duty of care to them. The circumstances are different in that in the present case the police requested, albeit on a voluntary and unpaid basis, the services of the member of the public concerned.

The question whether a duty of care exists cannot be decided by reference to the Code of Practice alone. The code imposes requirements for the conduct of interviews but does not, and would not be expected to, answer the questions posed by this civil claim. What it does is to provide justification for the request to the plaintiff to attend interviews. It imposes a requirement on the police to create a situation in which a third party, and in this case an appropriate adult as defined in the code, attends interviews at the police station.

In this context, I do not find helpful the distinction between primary and secondary victims considered by the House of Lords in Page v Smith [1995] 2 All ER 736, [1996] AC 155 in the context of road traffic accidents. In the words of Henry LJ in Frost v Chief Constable of the South Yorkshire Police, Duncan v British Coal Corp [1997] 1 All ER 540 at 563, [1998] QB 254 at 278, following those of Lord Hope in Robertson v Forth Road Bridge Joint Board, Rough v Forth Road Bridge Joint Board 1995 SCLR 466 at 475, the plaintiff was an active participant in the events causing the psychiatric damage. The plaintiff was not of course a victim of crime. The police created the situation, as they were required to do, in which it was foreseeable that the plaintiff would be subject to the risk of psychiatric injury. It was not of their choosing that West was interviewed in the presence of the plaintiff and the requirement for the presence of the plaintiff (or some other appropriate adult) was a duty imposed upon them by the code. That duty is different in nature from the duty now under consideration. Their performance of the duty under the code may lead them to assume a duty to the appropriate adult present on their premises for the purpose of their interview. The code is the background against which the police created a situation in which the potential for a duty of care is present. There can be no doubt that, with respect to the state of their premises, they owed a duty of care to the plaintiff though that is not an important factor for present purposes.

In my judgment the defendant did assume responsibilities to the plaintiff in the inevitably stressful situation in which they had placed her and the element of proximity is established. They may not have wished to place her in the situation but, once they did, they assumed responsibilities towards her. If, for example, the person being interviewed was known to be subject to spontaneous outbursts of physical violence (not this case) the police would plainly assume a responsibility for the safety of a member of the public they had asked to be present at the interview. In relation to whether a duty of care exists, I see no sensible distinction between that situation and a situation in which the member of the public was to be subject to a most bizarre and horrific verbal scenario. When foreseeability is in issue, it does not matter whether the injury in fact sustained is physical, psychiatric or both (Page v Smith).

There is in my view no merit in the submission that the duty is avoided because the plaintiff was required to be independent of the police in the performance of her duties and to assist the man being interviewed. She was, from the point of view of the police, a necessary participant in the procedures. The independence required of her did not preclude a duty of care any more than it would to the operators of a factory in relation to an independent safety officer or to the promoters of a boxing match in relation to the referee. Neither does the possibility that an attachment of some kind may develop between the appropriate adult and the person being interviewed negate the existence of a duty, though it may influence the measures necessary for its discharge. It is not a complete answer to the claim that the appropriate adult is entitled to withdraw from the proceedings. It is foreseeable that, once appointed, that person may persist either out of a sense of public duty, or a wish to help the person interviewed, or both.

The existence of the necessary relationship between police and appropriate adult is reinforced in this case by the written agreement signed by the plaintiff and on behalf of the defendant. Undertakings were given to the police by her as to the manner in which her duties would be performed. The perceived need for the agreement and its formality give substance to the relationship, or as I see it, confirm the existence of a relationship in which a duty of care is owed. It has not been suggested that the plaintiff’s acknowledgement in the agreement that no express or implied duties are owed to her determine in context whether a duty of care exists. That must be decided upon the circumstances as a whole amongst which that acknowledgement, given as and when it was, is not a major factor.

I also consider that it is fair, just and reasonable that the law should impose a duty of care. The Code of Practice which requires the presence of an appropriate adult lays down procedures for questioning witnesses. There may be circumstances in which the presence of the appropriate adult, as with other parts of the code, does impose limitations on what the police can do. Indeed, she is expected to be more than an observer. The fact that their activities are circumscribed, in this and other ways, does not make it reasonable for the relationship created to be outside those in which a duty of care exists. The task the police are performing at interview, and a recognition of its problems, may bear upon the definition of the boundaries of their duty and upon whether they are in breach of it but should not negate the existence of the duty.

I fail to see how it is necessary or appropriate in the interests of good policing to deny the existence of a duty of care to this member of the public. The existence of the duty need not itself unduly constrain the interview in a situation which is intended by Parliament to be subject to constraint. It is not suggested that the duty involves a requirement not to ask embarrassing questions or questions which will provoke distressing answers. It does not require the police to prevent the situation becoming stressful but in their dealings with the appropriate adult to have regard to the stress which will inevitably be present. The court will define the nature and extent of a duty appropriate to the circumstances, including the need for the police to be able to question effectively. This is not the time to define the duty but it may involve having regard to the nature of the case when selecting an appropriate person and some degree of instruction and counselling. The possibility that, once appointed, the person may persist in her duties should be borne in mind.

It appears to me eminently fair, just and reasonable that the police should owe a duty of care to a member of the public whom they have requested to assist them in this way. Fairness requires that in my view. There is a public interest in members of the public coming forward as the plaintiff did and that public interest would not be promoted by a finding that no duty of care is owed. There is a public interest in dealing fairly with such members of the public.

In Swinney v Chief Constable of the Northumbria Police [1996] 3 All ER 449, [1997] QB 464 the court held that it was arguable that the police owed a duty of care to an informant who passed on information in confidence implicating a person known to be violent. The court considered the policy reasons for granting the police immunity from suit which emerge from the judgments in Hill’s case and other cases. However, Hirst LJ ([1996] 3 All ER 449 at 464, [1997] QB 464 at 484) stated that ‘public policy in this field must be assessed in the round . . . in order to reach a fair and just decision on public policy’. Peter Gibson LJ ([1996] 3 All ER 449 at 466, [1997] QB 464 at 486) stated that ‘the court must evaluate all the public policy considerations that may apply’. A person asked to act as an appropriate adult under para 1.7(b)(iii) of the code is for the reasons given owed a duty of care as is one who assists by acting as an informant, though the assistance is of a different kind and the obligations which arise will be different.

I find the notion that the police may request a member of the public otherwise uninvolved in the matter to perform the duties of an appropriate adult, without owing her a duty of care, repugnant. The situation created is an unusual one and the task of defining the scope and extent of the duty, and the standard of care required, may be difficult. It may be discharged by minimal or quite simple measures in many cases. Moreover in cases of alleged psychiatric injury, a plaintiff may often have difficulties in establishing causation.

What would in my view be quite wrong, however, would be to allow the question whether a duty of care exists in the present situation to be determined by the difficulty or otherwise of defining the extent of the duty or the standard of care which is required if the duty does exist. The single question for this court is that stated by the defendant and set out in the first paragraph of this judgment. It should be decided according to principle without anticipating real or imagined future difficulties and of course without inappropriate sympathy for either party. Nor, upon the question posed, should the duty be defined or put into compartments.

I am satisfied that there was the necessary proximity to establish a duty of care and that it is fair, just and reasonable to do so. The difficult questions which may arise in this case are not to be met by a denial of the existence of a duty of care. I would allow the appeal and decline to strike out the claim on the ground sought.

DISPOSITION:
Appeal allowed in part. Leave to appeal to the House of Lord refused.

SOLICITORS:
Montague Harris, Bristol; Dolmans, Cardiff.

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R v Schlesinger; R v Dunk; R v Atlantic Commercial Ltd (United Kingdom)

[1995] Crim LR 137, (Transcript: John Larking)

R v Schlesinger; R v Dunk; R v Atlantic Commercial Ltd
COURT OF APPEAL (CRIMINAL DIVISION)
[1995] Crim LR 137, (Transcript: John Larking)
HEARING-DATES: 28 July 1994
28 July 1994
COUNSEL:
G Carey QC, R O’Sullivan and M Evans for the Appellants; A Arlidge QC and D Day for the Crown

PANEL: LORD TAYLOR CJ, OGNALL, GAGE JJ

JUDGMENTBY-1: LORD TAYLOR CJ

JUDGMENT-1:
LORD TAYLOR CJ (reading the judgment of the Court): On 4 November 1985, at the Central Criminal Court, these three appellants were arraigned on an indictment charging two offences of exporting arms to Iraq illegally. Count 1 charged Dunk and the appellant Company together with others with being knowingly concerned in the exportation of arms with the intent to evade the prohibition thereon imposed by the Export of Goods (Control) Order 1978. Both Dunk and the Company pleaded guilty.

Count 2 charged all three appellants together with others with being knowingly concerned in the attempted exportation of arms with intent to evade the prohibition thereon imposed by the Export of Goods (Control) Order 1981. All three appellants pleaded guilty to that offence. They were sentenced as follows: Schlesinger was fined #3,000 on count 2. Dunk was fined #2,500 on count 1 and #10,000 on count 2. He was also ordered to pay #5,000 towards the prosecution costs. The company was fined #2,500 on count 1 and #5,000 on count 2. It too, was ordered to pay #5,000 towards the prosecution costs.

The appellant Dunk is a director of the defendant Company, Atlantic Commercial (UK) Limited, whose business is described as Defence Consultants. The appellant Schlesinger described himself as a consultant. The first count concerned a small consignment of arms manufactured by the Sterling Armament Company Limited, said to be samples, which were exported from the UK in 1982 under arrangements made by the appellant Dunk and the appellant Company. The consignment had been ordered and paid for by the Government of Iraq. Export of arms to Iraq was prohibited at the relevant time by the Export of Goods (Control) Order 1978. Despite the Iraqi order and payment, the goods were said to be destined for the Sudan. An End User Certificate (EUC) to that effect was provided to the Authorities. In fact, the transport of these samples from the United Kingdom was by a chequered route. They were sent on 24 April from the UK to Lisbon. On 23 May they went from Lisbon to Amsterdam. On 19 July, they went from Amsterdam back to Lisbon. Finally, on 27 July, they were transported from Lisbon to Iraq. The appellant Dunk admitted in interview that he went to Lisbon in May and was responsible for the samples going eventually to Iraq. On 14 June 1982, the appellant Dunk wrote a letter to one Bianco, the sales director of Sterling (who was also convicted of an offence) which began as follows:

“Referring to the order that you sent to Heathrow of samples for Khartoum (!), we believe they may arrive this week at their final destination”.

The second count related to a later consignment of 200 Sterling 9mm. machine guns plus ammunition and ancillaries. They were awaiting shipment from Greenwich to Aquaba when they were seized by Customs and Excise on or about 18 February 1983. Again, these armaments had been ordered by Iraq and were paid for by Iraq. This time, it was said that the destination was Jordan and the EUC so stated. As to this, the appellant Dunk, on 14 June 1982, wrote to Sterling as follows:

“Because of the difficulty in obtaining an export licence for Iraq, the Jordanian Embassy agreed to purchase the goods on their behalf, but there has been apparently some trouble about the size of the reward to be paid by Iraq for the issue by Jordan of an EUC and this has delayed matters”.

Later in the same letter, the appellant Dunk said he would be sending the appellant Schlesinger to Sterling to deal with the terms.

Following the seizure of the consignment of 200 machine guns, the Customs authorities visited the homes and office of the appellants. Both Mr Dunk and Mr Schlesinger were interviewed. Mr Dunk admitted that the samples had gone directly to Iraq, that he knew this at the time and that he had been involved in the transport. He had hoped to receive a subsequent order for 2,000 weapons as a result of the shipment.

In the course of his interview, Schlesinger was asked about the count concerning him. The following exchange occurred:

“Customs Officer:Are you saying that Major Dunk did not discuss the 200 mark V’s with you?

Schlesinger:Yes, only as a Jordanian transaction.

Customs Officer:Did you ever discuss it as an Iraqi deal?

Schlesinger:Not really. We joke about these things. My reaction was, yes, a Jordanian transaction but only as a smoke screen. We know everything that goes to Jordan ends in Iraq. Who are we to judge?”

Following the seizure and the interview, there was considerable activity which it is unnecessary to set out in detail, involving correspondence and meetings between the appellant Dunk, his solicitor and the Embassies of both Jordan and Iraq. It is sufficient to say that there emerged a story that although Iraq had ordered and was paying for the two consignments of armaments, they were doing so in order to make gifts to Sudan and Jordan respectively. This, so the story ran, was nothing out of the ordinary. The gifts were being made, to quote one of Mr Dunk’s letters, as a “little present as a token of their continuing friendship etc”. Sir Basil Rhodes, Mr Dunk’s solicitor was assured by the Iraqi Embassy that the first consignment was a present for the Sudan and was assured by both the Iraqi and the Jordanian Embassies that the second consignment was similarly a present to the Jordanian army. Further assurances were given in January/February, July and October 1985 that witnesses would be made available from both Embassies to confirm this story in Court.

The appellants’ trial was fixed for 4 November 1985. It was only when Sir Basil Rhodes sought to take statements from the promised witnesses that he found a change of attitude at the Embassies. This culminated in his being told that authority to provide the witnesses had been withdrawn.

The appellants had, at a pre-trial review on 30 September 1985, clearly indicated that they would be contesting the case, the basis on which they would be doing so and that they intended to rely on witnesses from the two Embassies.

On the day of the trial, the appellants, who were represented by very experienced leading counsel, found themselves faced with a formidable prosecution case as summarised above, and bereft of the witnesses upon whom they had intended to rely. It seems that an indication was given to them that whether they pleaded guilty or were convicted there would be no custodial sentence. In those circumstances, the appellants pleaded guilty and were fined the amounts specified above.

The defence were aware before the trial that Customs and Excise officers had visited the Embassies on 18 February 1983. Inquiries as to what transpired on that occasion were ultimately answered by Customs and Excise who admitted that on 21 February 1983, following the visit, the Iranian Embassy told their officers that the 200 machine guns were a gift to Jordan. However, it was only as a result of evidence to the Scott Inquiry on 15 June 1993, eight years after the trial, that it emerged there had been further contact with the Embassies shortly before the trial on the initiative of both Customs and Excise and the Foreign and Commonwealth Office (FCO).

The documents before this Court which were not disclosed at the time of trial, include the following. On 25 February 1983, Mr M F Knox, Assistant Chief Investigation Officer of H M Customs and Excise wrote to Mr Wogan of the Middle East Department of the FCO. The letter began:

“You asked for a copy of my officers reports concerning their visits to the Iraqi and Jordanian Embassies. These are enclosed.

You will see that, given time, the two Embassies have put their heads together and produced a united front with a story which is neither credible nor supported by the documentary and oral evidence we now possess.

My only concern is the possible effect this story may have in future criminal proceedings should the defence lawyers decide to obtain the agreement of Embassy personnel to appear as witnesses. It may be prudent for us to confront the Ambassadors with the contradictory evidence in our possession before such an eventuality becomes fact in the hope that this will deter them from taking a potentially embarrassing course of action”.

There is an internal minute dated 1 October 1985 from Mr G H Boyce of the Middle East Department of the FCO to Mr Harding (now deceased) referring to information from a Mr Cassey of Customs & Excise. Paragraph 2 of the minute reads:

“Customs & Excise said that the evidence so far presented by the Embassy personnel was conflicting. If they waive their immunity and were prepared to stand as witnesses, then they would have to withstand cross-examination as well. Given H M Customs & Excise belief that the result of this cross-examination could be potentially embarrassing to both Embassies, it was Mr Cassey’s view that the interests of the Embassies would not be served by members of the Embassy staff agreeing to appear for the defence”.

A copy of that minute was sent to Mr Pigott of the Near East and North Africa Department of the FCO (NENAD) who annotated it with a minute in his own hand, addressed to Mr Nixon, also of NENAD. It began:

“MED are contemplating having an informal word with the Iraqi Ambassador to point out the possible pitfalls of waiving immunity”.

Next, there was another minute from Mr Pigott in his own hand to Mr Nixon dated 2 October. The relevant part reads as follows:

“MED have had an informal word with the Iraqi Ambassador to say (a) this is none of the FCO’s business, but (b) it would perhaps be best if the Ambassador did not agree to waive immunity.

I am not sure that we need to make the same noises to the Jordanians….but if you think it appropriate I could have a word with counsellor Kadi.”

Mr Nixon’s response to that is appended in his handwriting and reads:

“Mr Pigott.

I confess to innocent reluctance to connive at impeding the course of justice! But you might gently enquire when talking to Kadi on other business”.

The document is further annotated with a comment, apparently in Mr Pigott’s writing:

“Spoke to Mr Kadi who was grateful and agreed with C and E’s advice”.

By agreement there has been put before us written evidence from the authors of some of the minutes quoted above. Mr Pigott, in answer to a question from the Inquiry: “Do you accept that, in so doing you are conniving at impeding the course of justice?” Reply:

“I accept that this would be a reasonable construction to place on my action, if, by so doing, I would be frustrating the intention of the prosecuting authority to bring a prosecution or secure a conviction. That, however, was not my intention”.

(Exactly so! we would interpolate).

“I repeat that, in passing on that message at the time, I was acting in good faith. After all, I was acting at the behest of the prosecuting authority who, I might reasonably have concluded, had cleared their lines from the legal standpoint. There is no question of my seeking to impede the course of justice”.

Again, with agreement, we have before us the evidence of Sir Stephen Egerton given to the Scott Inquiry on 15 June 1993. Sir Stephen was at the relevant time Under Secretary for the Middle East. After the minutes summarised above had been drawn to his attention, Lord Justice Scott put it to Sir Stephen that what happened was disgraceful and asked “Do you find anything to object to in that adjective?” Sir Stephen replied: “I would say it was a bad show”.

We prefer the plain adjective used by Lord Justice Scott. What was happening was that senior officers in the FCO at the behest of the prosecuting authority, Customs and Excise, were urging the foreign embassies to claim diplomatic immunity and thereby deprive the defendants in a criminal trial of witnesses they wished to call and had been promised would be available. It is clear that their efforts were successful resulting in the defendants being deprived of witnesses they wished to call.

In our view, it is nothing to the point that the story which the Embassies had been prepared to support would take a lot of swallowing. That was a matter for the jury. Had witnesses been available to support that story, it may well be that cross-examination would have discredited them and sunk the defence without trace. But we have no doubt that by seeking to put those witnesses in baulk and succeeding in doing so, those involved were improperly interfering with the course of justice. In addition, the failure to disclose what had taken place kept the defence in ignorance of the impropriety and thus prevented them from raising the matter with the trial judge.

Mr Arlidge QC, on behalf of the Crown has, as one would expect, adopted a frank and realistic approach. He concedes that the conduct of the prosecuting authority and the FCO were capable of being an abuse of the process of the Court. He said: “It is not my role to defend the indefensible”. He further concedes that had counsel for the Crown known of the approach by the FCO to the Embassies at the time of the trial, they would have disclosed that material to the defence. Nevertheless, he seeks to resist this appeal.

Mr Carey submits that there was here, an abuse of process arising from two separate and serious improprieties on the part of the prosecuting authorities. First, he submits that Customs and Excise through the FCO deliberately interfered with potential defence witnesses or manipulated affairs through the foreign embassies so as to prevent defence witnesses, who would otherwise have given evidence in the appellants favour, from being allowed to come to Court at all. They thereby deliberately prevented the appellants from having a fair trial.

Quite separately, the approaches which were made to the embassies and the documents which have been summarised above were not disclosed to the defence so that those acting for the appellants were wholly unaware at the time of the trial and for eight years afterwards why the witnesses, upon whom they had intended to rely, were not available. Had the defence known what had in fact happened at the time of trial they could have drawn the matter to the judge’s attention. It is submitted that the conduct of the prosecution had been such that the judge would in all probability have stayed the proceedings before arraignment as an abuse of process.

It was common ground in the argument before us, that in regard to abuse of process, the Court has recognised two different categories. First, the Court may stop a prosecution for abuse of process if there has been prejudice to the defendant or a fair trial cannot be held. Thus, in R v Derby Crown Court ex parte Brooks 80 Cr App Rep 164, at page 168, Sir Roger Ormrod said:

“The power to stop a prosecution arises only when it is an abuse of process of the Court. It may be an abuse of process if either (a) the prosecution have manipulated or misused the process of the Court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b) on the balance of probability, the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable … the ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness to both the defendant and to the prosecution….”

Secondly, however, there are cases where the conduct of the prosecution has been such as to justify a stay of proceedings for abuse of process regardless of whether a fair trial might still be possible. Thus in R v Horseferry Road Magistrates Court ex parte Bennett [1994] 1 AC 42, [1993] 3 All ER 138 Lord Griffiths, after referring to ex parte Brooks (supra) and other cases, went on at page 61 H of the former report to say:

“Your Lordships are now invited to extend the concept of abuse of process a stage further. In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the Court is to have the power to interfere with the prosecution in the present circumstances, it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.

My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law……if it comes to the attention of the Court that there has been a serious abuse of power, it should, in my view, express its disapproval by refusing to act upon it.”

That was a case in which the Authorities had brought the appellant back to this country to face trial in defiance of the laws of the State where he was found, in breach of international law and in disregard of available extradition processes.

We should cite two further passages from ex parte Bennett. At page 62 F, Lord Griffiths said:

“The Courts, of course, have no power to apply direct discipline to the police or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their behaviour as an abuse of process and thus preventing a prosecution”.

Lord Lowry, at page 74 G said:

“I consider that a Court has a discretion to stay any criminal proceedings on the ground that to try those proceedings will amount to an abuse of its own process either (1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or (2) because it offends the Court’s sense of justice and propriety to be asked to try the accused in the circumstances of a particular case. I agree that prima facie it is the duty of a Court to try a person who is charged before it with an offence which the Court has power to try and therefore that the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the Court’s disapproval of official conduct. Accordingly, if the prosecuting authorities had been guilty of culpable delay but the prospect of a fair trial has not been prejudiced, the Court ought not to stay the proceedings merely ‘pour encourager les autres’.”

Again, in R v Croydon Justices ex parte Dean [1993] QB 769, 98 Cr App Rep 76, the Divisional Court quashed a committal for trial where the defendant had been given to understand he would not be prosecuted but would be used as a prosecution witness. After assisting the police for some five weeks, he was in fact prosecuted. Although it might have been possible to hold a fair trial by excluding any admissions he had made during the five-week period, the Court decided the committal should be quashed. Staughton LJ said at page 84 of the latter report:

“In my judgment, particularly having regard to the fact that Dean was only 17 at the time (although not, as he has since admitted, a stranger to crime), it was clearly an abuse of process for him to be prosecuted subsequently. The impression created was not dispelled for over five weeks, during which period he gave repeated assistance to the police. This case can, I think, be regarded as quite exceptional. The Justices were bound to treat it as one of abuse of process”.

Mr Carey submits that in the present case, the conduct of the prosecution was such that the Court would have stayed the proceedings without more, had it known of what had occurred. The proceedings were not stayed, he submits, because of the further impropriety that the prosecution did not disclose to the defence that which would have enabled them to make the application. Therefore the convictions should be quashed without consideration of prejudice.

Secondly, Mr Carey submits that the conduct of the prosecution did in fact prejudice the appellants, so that if that had been a necessary ingredient here, the appellants can establish it. The prejudice lies first, as already indicated, in the inability of the appellants advisers to make an application to stay the proceedings because of the non-disclosure by the prosecution of what had occurred. Secondly, although it is true that the appellants pleaded guilty, it is clear that they had intended to contest the case, that they only decided to plead guilty when the evidence they were to rely upon failed to materialise and when it had been indicated to them that there would be no custodial sentence. Mr Carey submits that they were prejudiced in that they were deprived of the opportunity to consider their pleas in full knowledge and appreciation of the whole of the facts. It may well be that, deprived of the expected evidence from the embassies, the prospects of a successful defence were so diminished that, balancing the cost of contesting the case unsuccessfully against the probable fines to be imposed, the decision was made to plead guilty which would otherwise not have been made.

Mr Arlidge submitted that the class of case in which the court would grant a stay for abuse of process without prejudice being shown or where a fair trial could still take place, is very small and specifically confined. He said it consisted only of cases in which the defendant could not have been brought before the Court at all had not the prosecution been guilty of impropriety. Thus, in Bennett [1994] 1 AC 42, [1993] 3 All ER 138, the defendant would not have been brought before an English Court had he not been kidnapped improperly in South Africa. In ex parte Dean [1993] QB 769, 98 Cr App Rep 76, the defendant would not have been brought before the Court had not the prosecution reneged on their promise to him. However, although those two specific cases can be brought under the small umbrella erected by Mr Arlidge, we do not consider the class can be so confined. The dicta we have cited from Bennett are couched in wide terms of principle which do not justify Mr Arlidge’s narrow test.

Mr Arlidge also reminded us of the warning given by Lord Lane CJ in Attorney General’s Reference (No.1 of 1990) [1992] 1 QB 630, [1992] 3 All ER 169 at page 643 G of the former report:

“Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust”.

However, in our judgment the machinations in this case to prevent witnesses for the defence being available coupled with the non-disclosure of what had been done, constituted such an interference with the justice process as to amount to an abuse of it. We have little doubt that if the trial judge had been told witnesses for the defence had been prevented from coming to Court at the initiative of the prosecuting authority, it is highly likely that he would have stayed the proceedings unless there was any possible way of enabling those witnesses to attend after all. Even if the story the witnesses would have supported was one the jury would have been likely to reject, it was the appellants’ right to put it forward if they wished. It was for the Court and in particular a jury, not an assistant Chief Investigation Officer of Customs and Excise to decide whether the story was (in his words) “neither credible nor supported by the documentary and oral evidence we now possess”.

If we are wrong in regarding this case as one which involved an abuse of process regardless of whether a fair trial could still take place, we consider Mr Carey’s second argument is sound. There was prejudice here. Whilst the Court is usually slow to set aside pleas of guilty which have been made unequivocally, where they have been made in ignorance of malpractice having operated to the defendants’ disadvantage, different considerations may apply. We consider Mr Carey’s exposition of the prejudice in the present case is well founded. Accordingly on that ground, if necessary, we would again hold that there was an abuse of process.

For these reasons, we came to the conclusion that the appeals of each of the appellants must be allowed and we quashed the convictions.

DISPOSITION:
Appeals allowed, convictions quashed.

In a sentence, the plaintiff served a Statement of Claim upon the defendant commissioner pleading three causes of action respectively: (1) conspiracy to pervert the administration of public justice; (2) misfeasance in a public office, and (3) malicious prosecution: Silcott v Commissioner of Police for the Metropolis COURT OF APPEAL (CIVIL DIVISION) (United Kingdom)

The Times 9 July 1996, (Transcript: Smith Bernal)

Silcott v Commissioner of Police for the Metropolis
COURT OF APPEAL (CIVIL DIVISION)
The Times 9 July 1996, (Transcript: Smith Bernal)
HEARING-DATES: 24 MAY 1996
24 MAY 1996
COUNSEL:
Lord Williams of Mostyn QC and E Rees for the Appellant; R Seabrook QC and D MacLeod for the Respondent

PANEL: NEILL, SIMON BROWN, WAITE LJJ

JUDGMENTBY-1: SIMON BROWN LJ

JUDGMENT-1:
SIMON BROWN LJ: This is a plaintiff’s appeal against the order of Drake J on 12 April 1995 dismissing his appeal against the striking-out order made by Master Eyre on 2 February 1995.

In a sentence, the plaintiff served a Statement of Claim upon the defendant commissioner pleading three causes of action respectively:

(1) conspiracy to pervert the administration of public justice;

(2) misfeasance in a public office, and

(3) malicious prosecution.

The first two have been struck out; the third stands. By this appeal the plaintiff seeks to have the first two reinstated.

The principal advantage to the plaintiff of succeeding upon the appeal, let it be made plain at once, is that he would be spared the need to prove the absence of reasonable and probable cause to prosecute, one of the essential ingredients of the tort of malicious prosecution but an ingredient lacking from the other two causes of action. I should add that proof of malice is required for all three.

With that short introduction let me set out the relevant facts which for the most part I gratefully take from the judgment below. On 6 October 1985 Police Constable Blakelock was killed during a riot on a housing estate at Tottenham in North London. On 12 October at 6.45 pm. the plaintiff was arrested by Detective Chief Superintendent Melvin for the murder. He was taken from the Tottenham Police Station to Paddington Green Police Station arriving there at 9.03 pm.

He was there interviewed by Detective Chief Superintendent Melvin and Detective Inspector Dingle, once on 12 October and four times on 13 October. Detective Inspector Dingle wrote notes purporting to be a contemporaneous record of what the plaintiff said in answer to questions by Detective Chief Superintendent Melvin during the interview which took place between 7.11 and 8 pm. on 13 October. Detective Chief Superintendent Melvin countersigned those manuscript notes. At 8.45 pm. on 13 October Detective Chief Superintendent Melvin charged the plaintiff with the murder of Police Constable Blakelock.

On 19 March 1987 at the Central Criminal Court the plaintiff was convicted of the murder and of riot. He was sentenced to life imprisonment and ten years’ imprisonment respectively. The trial judge recommended that he serve not less than 30 years of the life sentence.

The only witness against the plaintiff at the trial was Detective Chief Superintendent Melvin. He produced the notes made by Detective Inspector Dingle and presented them as a true record of the interview. The notes contained admissions or partial admissions by the plaintiff of his guilt. The plaintiff did not himself give evidence at the trial.

On 25 July 1991 the Home Secretary ordered an investigation which embraced an enquiry into the way in which the interviews had been conducted and the authenticity of the notes of interview. In the course of that investigation, carried out by officers of the Essex Constabulary, Detective Chief Superintendent Melvin said that the notes of the interview were a true record. On 1 October 1991 the Home Secretary referred the convictions to the Court of Appeal (Criminal Division) under s 17 of the Criminal Appeal Act 1968. On 15 November 1991 the Court of Appeal quashed the convictions on the basis that they were unsafe and unsatisfactory. The prosecution did not resist the appeal.

On 16 March 1993 the plaintiff’s writ in the present action was issued. The Statement of Claim was served on 29 June 1993. The plaintiff’s pleaded case (which for the purpose of deciding a striking-out application must be assumed to be true) is as follows:

(1) The notes are a false record; the questions were not asked and the answers were not given.

(2) They were the result of an agreement between the two police officers to create a false record in order to harm the plaintiff by showing that he had murdered Police Constable Blakelock.

(3) The false record did harm the plaintiff in that it contributed to his conviction for murder.

(4) The intention of the two police officers was to pervert the course of the investigation into that murder.

(5) In agreeing to create and in creating the false notes the two police officers acted maliciously and in the knowledge that they were abusing the office of constable.

Although as I repeat those pleaded allegations are for present purposes to be assumed true, I should emphasise two matters: first, that the plaintiff’s case against these police officers (who were acting under the control of the defendant commissioner) has not yet been tried or adjudicated upon; second, that the two officers were charged with conspiracy to pervert the course of justice and with perjury, tried at the Central Criminal Court, and on 26 July 1994 both acquitted by unanimous jury verdict on each count.

The action had been stayed pending that criminal trial. Once it was over, the defendant issued his striking-out application with the result already indicated.

The issue raised on appeal remains, as it was identified below, “whether the alleged actions of the police officers are protected from any civil action for conspiracy to pervert the course of justice or misfeasance in a public office by reason of a cloak of absolute immunity conferred as a matter of public policy.”

It has never been suggested that the plaintiff should be legally barred from pursuing his action for malicious prosecution.

Before turning to the arguments, it is convenient to indicate something of the relevant law. Rather than refer in detail to the various authorities, I propose to set out, with only very limited citations, what I take to be the central principles in play.

(1) There exists a fundamental rule of law that:

“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.”

per Kelly CB in Dawkins v Lord Rokeby [1873] LR 8 QB 255. As Sellers LJ put it in Marrinan v Vibart and Another [1963] 1 QB 528, [1962] 3 All ER 380 at 535 of the former report:

“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.”

I shall call this the immunity rule.

(2) The public policy purposes underlying the immunity rule 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 [1971] AC 470, [1970] 1 QB 283 at 480 of the former report:

“… to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again”,

in other words to avoid the impeachment of evidence given and conclusions reached in one trial by subsequent collateral challenge.

(3) The immunity rule applies in the context of criminal proceedings

“… 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”,

per Drake J in Evans v London Hospital Medical College (University of London) and Others [1981] 1 All ER 715, [1981] 1 WLR 184 at 720 of the former report. The immunity does not extend to matters outside the relevant proceedings, for example to defamatory communications sent to the Bar Council prior to a disciplinary enquiry; see Lincoln v Daniels [1962] 1 QB 237, [1961] 3 All ER 740.

(4) The immunity rule does not apply to proceedings “in respect of malicious abuse of process”, whether for malicious prosecution or malicious arrest – see Lord Morris of Borth-y-Gest in Roy v Prior [1971] AC 470 at 477 G to 478 A, itself a case of malicious arrest. This is so even though, as Lord Morris pointed out in that same passage:

“It must often happen that a defendant who is sued for damages for malicious prosecution will have given evidence in the criminal prosecution of which the plaintiff complains.”

As Lord Keith put it in Martin v Watson [1996] 1 AC 74, [1995] 3 WLR 318 at 328 of the latter report:

“The essential feature of malicious prosecution is an abuse of the process of the court. If that has occurred it is immaterial that the abuse has involved giving evidence in a court of law.”

(5) The immunity rule is not

“to be circumvented by alleging a conspiracy between witnesses to make false statements”

see Lord Morris in Roy v Prior at page 477, approving the Court of Appeal decision to that effect in Marrinan v Vibart. Similarly, in Marrinan v Vibart itself the court noted the repeated attempts over the years one way or another to escape the immunity rule, attempts variously described as “in despair”, or “an obvious try-on”.

A recent decision in point is McDonagh and Another v Commissioner of Police of the Metropolis, The Times, 28 December 1989, where Popplewell J refused to permit the plaintiff to add to a malicious prosecution claim an alternative cause of action for misfeasance in a public office, an action which he pointed out would succeed even without proof of absence of reasonable and probable cause.

(6) The immunity rule should extend only so far as is

“strictly necessary … in order to protect those who are to participate in the proceedings from a flank attack”

per Devlin LJ in Lincoln v Daniels at page 263 of the former report.

As Lord Wilberforce put it in Roy v Prior at page 480:

“Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest.”

Those being the governing legal principles, how does Lord Williams QC seek to escape the immunity rule in the particular circumstances of this case? His argument is essentially this, that there is a real difference – “a qualitative difference” as he calls it – between on the one hand the preparation of false testimony which may include the making of a report or statement — which is, he acknowledges, barred by the immunity rule — and on the other hand the fabrication of a false object, perhaps a physical exhibit — “the fraudulent creation of real evidence”, as he calls it — which he contends is not.

This case, he submits, involved the creation of a false document, namely seven pages of manuscript notes purporting to be a contemporaneous record of an incriminating interview with the plaintiff, but in fact a forgery, sheer invention from first to last. Such conduct, he argues, is not immune from suit merely because the police officers’ own statements and testimony on the issue were prepared for the plaintiff’s criminal prosecution. That, he submits, is coincidental, just as the fact that oral evidence may be given by the prosecutor in a malicious prosecution case is incidental.

He submits that in fabricating evidence against the plaintiff the officers here were not “investigating crime” and thus cannot benefit from the immunity rule. Similarly, he submits, Detective Chief Superintendent Melvin’s continuing assertion, during the course of the s 17 enquiry, over four years after trial, that the interview notes were a true record, is a distinct aspect of misfeasance which falls outside the period.

Mr Seabrook QC for the respondent Commissioner submits that the requirement in the tort of malicious prosecution to prove absence of reasonable and probable cause strikes what has long been recognised as the right balance between the competing public interests here at stake. The distinctions contended for by Lord Williams are, he submits, artificial, distinctions without a difference. That, I have to say, is very clearly how the case strikes me. I can see no “qualitative difference”, nor indeed any rational distinction whatever, between the various situations considered in argument for which Lord Williams contends.

The same policy considerations as underlie the immunity rule in its most direct and obvious application, ie. 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 s 17 enquiry, such as here took place. I see no difference in principle between a police officer fabricating a record of interview in writing, and the equivalent in times past, a police officer verballing an accused; nor between, say, an officer planting a brick or drug on an accused so that someone else will give truthful evidence of having found it, and an officer giving false evidence that he himself found such a brick or drug.

In my judgment, Drake J was correct in Evans to have held that the immunity covers all conduct that can fairly be said to be part of the investigatory and, I would add, preparatory process. 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.

That of course leaves this position:

(1) that the assumed miscreant is himself open to criminal prosecution whether for perjury or for perverting the course of public justice, precisely the charges which faced the defendant officers in the present case.

(2) if the miscreant is himself responsible for the prosecution being brought, whether or not himself technically the prosecutor (see on this point Martin v Watson [1995] 3 WLR 318) he is vulnerable to a claim for malicious prosecution.

I acknowledge that, if the false information provided by the miscreant was not the determining factor in the decision to prosecute, so that he himself cannot be sued for malicious prosecution, then the effect of the immunity rule is to deny the person aggrieved all civil remedy against him. This, however, seems to me altogether less of an anomaly than would arise upon the appellant’s argument: namely that, wherever the alleged miscreant is a police officer, an action lies for misfeasance in a public office; and that, wherever there is alleged to be more than one miscreant, a claim can be brought for conspiracy, in each case without the need for the plaintiff to prove the absence of reasonable and probable cause, or indeed for the plaintiff even to have been acquitted of the crime charged against him.

In my judgment the law upon the point is clear. This action, insofar as it goes beyond a claim for malicious prosecution, is yet another attempt to evade the immunity rule, “an obvious try-on” as Lord Goddard called a comparable earlier attempt.

All that I have said is in the context of what I had at first understood to be the case, namely that the fabricated interview notes were signed by the plaintiff and exhibited by Detective Chief Superintendent Melvin. We are now told that this was not so. We are further told, indeed, that Detective Chief Superintendent Melvin’s evidence went unchallenged, Detective Inspector Dingle not being required by the defence to give corroborative evidence. On the true facts, therefore, the appellant’s case becomes yet more unarguable. That however is by the way. Drake J was, I conclude, correct both in his ruling and in the reasons he gave.

I would dismiss this appeal.

JUDGMENTBY-2: WAITE LJ

JUDGMENT-2:
WAITE LJ: I agree.

JUDGMENTBY-3: NEILL LJ

JUDGMENT-3:
NEILL LJ: I also agree. I only add a few words of my own to emphasise the width and importance of this immunity. The nature of immunity was clearly stated by Salmon J in Marrinan v Vibart [1963] 1 QB 234 at 237 when he said that the immunity given to a witness or a potential witness is because

“the administration of justice would be greatly impeded if witnesses were to be in fear that … persons against whom they gave evidence might subsequently involve them in costly litigation.”

That passage in Salmon J’s judgment was quoted by Drake J in his decision in Evans v London Hospital Medical College [1981] 1 All ER 715 and [1981] 1 WLR 184, to which my Lord has already referred. Drake J continued as follows at 720 and 191:

“If this object [that is the immunity] is to be achieved I think it is essential that the immunity given to a witness should also extend to cover statements he makes prior to the issue of a writ or commencement of a prosecution, provided that the statement is made for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered. In a large number of criminal cases the police have collected statements from witnesses before anyone is charged with an offence; indeed sometimes before it is known whether or not any criminal offence has been committed.

If immunity did not extend to such statements it would mean that the immunity attaching 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 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 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.”

For these reasons and for the reasons much more fully explained in the judgment of my Lord, I too would dismiss this appeal.

DISPOSITION:
Appeal dismissed

SOLICITORS:
Bindman & Partners; Solicitor to the Metropolitan Police

Negligence — Duty to take care — Existence of duty — Crown Prosecution Service — Duty owed to accused in criminal case — Administrative responsibility as prosecutor to keep court informed as to state of adjourned criminal case — Crown Prosecution Service undertaking to inform magistrates’ court that plaintiff’s offences had been taken into consideration by Crown Court — Crown Prosecution Service failing to inform magistrates’ court — Plaintiff not appearing before magistrates to answer charges — Plaintiff arrested and kept in custody under warrant of arrest issued by magistrates — Whether Crown Prosecution Service under duty to inform magistrates’ court that plaintiff’s offences had been taken into consideration by Crown Court — Whether Crown Prosecution Service owing duty of care to plaintiff — Whether Crown Prosecution Service immune from proceedings — Crown Proceedings Act 1947, s 2(5): Welsh v Chief Constable of the Merseyside Police and another QUEEN’S BENCH DIVISION AT LIVERPOOL (United Kingdom)

[1993] 1 All ER 692

Welsh v Chief Constable of the Merseyside Police and another
QUEEN’S BENCH DIVISION AT LIVERPOOL
[1993] 1 All ER 692
HEARING-DATES: 28 February, 1, 27 March 1991
27 March 1991

CATCHWORDS:
Negligence — Duty to take care — Existence of duty — Crown Prosecution Service — Duty owed to accused in criminal case — Administrative responsibility as prosecutor to keep court informed as to state of adjourned criminal case — Crown Prosecution Service undertaking to inform magistrates’ court that plaintiff’s offences had been taken into consideration by Crown Court — Crown Prosecution Service failing to inform magistrates’ court — Plaintiff not appearing before magistrates to answer charges — Plaintiff arrested and kept in custody under warrant of arrest issued by magistrates — Whether Crown Prosecution Service under duty to inform magistrates’ court that plaintiff’s offences had been taken into consideration by Crown Court — Whether Crown Prosecution Service owing duty of care to plaintiff — Whether Crown Prosecution Service immune from proceedings — Crown Proceedings Act 1947, s 2(5).

HEADNOTE:
On 24 July 1987 the plaintiff appeared before a magistrates’ court charged with two offences of theft. He was remanded on bail to appear before the court on 19 August. On 7 August the plaintiff was due to appear in the Crown Court to be dealt with for numerous criminal matters. Before the case was called on in the Crown Court the plaintiff’s counsel informed the police officer in charge of the case, counsel for the prosecution and a representative of the Crown Prosecution Service that the plaintiff wanted the offences of theft with which he had been charged in the magistrates’ court and to which he intended to plead guilty to be taken into consideration when he was sentenced by the Crown Court. The police officer contacted the magistrates’ court to obtain the necessary details and for permission to have the offences taken into consideration. He then spoke on the telephone to a solicitor employed by the Crown Prosecution Service responsible for prosecutions in the magistrates’ court, who agreed to and approved the proposal that the offences should be taken into consideration at the Crown Court. The officer asked the solicitor to indorse the file that the offences were being taken into consideration that morning and then told counsel for the prosecution that the Crown Prosecution Service had agreed to the offences being taken into consideration by the Crown Court. It was agreed between the plaintiff’s legal advisers and the Crown Prosecution Service representative that the offences should be taken into consideration and that was in fact done when the plaintiff appeared before the judge in the Crown Court. On 19 August the plaintiff failed to answer to his bail at the magistrates’ court, believing that the magistrates had been informed that the offences had been taken into consideration. In fact the magistrates’ court was not aware of that fact and issued a warrant for his arrest not backed for bail. On 19 December the plaintiff was arrested, taken to a police station and held in custody under the warrant until he was released by the magistrates’ court on 21 December 1987. The plaintiff brought an action against the police and the Crown Prosecution Service alleging that he had suffered loss, damage and distress as the result of the defendants’ negligent failure to ensure that the magistrates’ court was informed that the offences for which he had been bailed had subsequently been taken into consideration by the Crown Court. On the application of the Crown Prosecution Service the registrar struck out the plaintiff’s claim against it pursuant to RSC Ord 18, r 19(1)(a) (Rule 19(1), so far as material provides: ‘The Court may at any stage of the proceedings order to be struck out . . . any pleading or the indorsement of any writ in the action . . . on the ground that — (a) it discloses no reasonable cause of action . . .’) on the ground that the Crown Prosecution Service did not owe the plaintiff any duty of care. The plaintiff appealed. The Crown Prosecution Service claimed immunity from proceedings under s 2(5) of the Crown Proceedings Act 1947, which provided that no proceedings lay against the Crown ‘in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process’. The Crown Prosecution Service contended (i) that in assuming responsibility for informing the magistrates’ court that the plaintiff’s offences had been taken into consideration by the Crown Court it was discharging a responsibility which it had in connection with the execution of a judicial process, (ii) that the advocate at the resumed hearing before the magistrates was immune from suit and that accordingly in that respect it was protected against the action and (iii) that the action was akin to an abuse of process in which proof of malice was an integral part of the action and that negligent breach of process was not a cause of action.

Held — (1) Section 2(5) of the 1947 Act was directed to the immunity of judicial, not administrative, functions and since the recording of the fact that an offence had been taken into consideration or communicating that fact to a particular court did not fall within the ambit of judicial functions but was instead an administrative act the Crown Prosecution Service could not claim immunity from the plaintiff’s proceedings under that Act.

(2) Although the Crown Prosecution Service was immune from any action based on the failure of the advocate at the resumed hearing before the magistrates to inform the bench that the plaintiff’s offences had been taken into consideration by the Crown Court, that immunity did not extend to any failure by the Crown Prosecution Service to carry out its general administrative responsibility or practice as prosecutor to keep the court informed as to the state of an adjourned criminal case or its particular responsibility to do so in the plaintiff’s case by virtue of having undertaken to do so; Saif Ali v Sydney Mitchell & Co (a firm) [1978] 3 All ER 1033 and Kirkham v Chief Constable of the Greater Manchester Police [1990] 3 All ER 246 applied.

(3) An action in respect of acts or omissions which preceded a court process could be framed in negligence without proof of malice being required. Accordingly, since on the assumed facts the Crown Prosecution Service had a general administrative responsibility as prosecutor to keep a court informed as to the state of an adjourned criminal case or had in practice assumed such a responsibility and had done so in the plaintiff’s case, the relationship between the plaintiff and Crown Prosecution Service was sufficiently proximate for the Crown Prosecution Service to owe a duty of care to the plaintiff to see that the magistrates’ court was informed that the offences committed by the plaintiff had already been taken into consideration by the Crown Court. Furthermore, it was fair, just and reasonable for such a duty to exist and there were no public policy grounds to exclude the existence of such a duty. The appeal would therefore be allowed and the plaintiff’s claim reinstated in so far as it alleged negligence on the part of the Crown Prosecution Service prior to the resumed hearing before the magistrates; Business Computers International Ltd v Registrar of Companies [1987] 3 All ER 465 and Al Kandari v JR Brown & Co (a firm) [1988] 1 All ER 833 distinguished; dictum of Lord Denning MR in Roy v Prior [1969] 3 All ER 1153 at 1155 and Kirkham v Chief Constable of the Greater Manchester Police [1990] 3 All ER 246 considered.

NOTES:
For the duty of care generally, see 34 Halsbury’s Laws (4th edn) para 5, and for cases on the subject, see 36(1) Digest (2nd reissue) 21-54, 132-235.

For claims against the Crown for liability in tort, see Supplement to 11 Halsbury’s Laws (4th edn) para 13.

For the liability of the Crown in tort, see 45 Halsbury’s Laws (4th edn) para 1210, and for cases on the subject, see 11 Digest (Reissue) 692-694, 299-312.

For the Crown Prosecution Service, see 11(1) Halsbury’s Laws (4th edn reissue) paras 645-651.

For the Crown Proceedings Act 1947, s 2, see 13 Halsbury’s Statutes (4th edn) (1991 reissue) 11.

CASES-REF-TO:

Al-Kandari v JR Brown & Co (a firm) [1988] 1 All ER 833, [1988] QB 665, [1988] 2 WLR 671, CA.
Anns v Merton London Borough [1977] 2 All ER 492, [1978] AC 728, [1977] 2 WLR 1024, HL.
Business Computers International Ltd v Registrar of Companies [1987] 3 All ER 465, [1988] Ch 229, [1987] 3 WLR 1134.
Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605, [1990] 2 WLR 358, HL.
Clarke v Bruce Lance & Co (a firm) [1988] 1 All ER 364, [1988] 1 WLR 881, CA.
Davis v Radcliffe [1990] 2 All ER 536, [1990] 1 WLR 821, PC.
Hill v Chief Constable of West Yorkshire [1987] 1 All ER 1173, [1988] QB 60, [1987] 2 WLR 1126, CA; affd [1988] 2 All ER 238, [1989] AC 53, [1988] 2 WLR 1049, HL.
Kirkham v Chief Constable of the Greater Manchester Police [1990] 3 All ER 246, [1990] 2 QB 283, [1990] 2 WLR 987, CA.
McNaughton (James) Papers Group Ltd v Hicks Anderson & Co (a firm) [1991] 1 All ER 134, [1991] 2 QB 113, [1991] 2 WLR 641, CA.
Morgan Crucible Co plc v Hill Samuel Bank Ltd [1991] 1 All ER 148, [1991] Ch 295, [1991] 2 WLR 655, CA.
Myers v Elman [1939] 4 All ER 484, [1940] AC 282, HL.
Peabody Donation Fund (Governors) v Sir Lindsay Parkinson & Co Ltd [1984] 3 All ER 529, [1985] AC 210, [1984] 3 WLR 953, HL.
R v Batchelor (1952) 36 Cr App R 64, CCA.
R v Hicks (1924) 18 Cr App R 11, CCA.
R v McMinn (1945) 30 Cr App R 138, Assizes.
R v Nicholson (1948) 32 Cr App R 98, CCA.
Roy v Prior [1969] 3 All ER 1153, [1970] 1 QB 283, [1969] 3 WLR 635, CA [1970] 2 All ER 729, [1971] AC 470, [1970] 3 WLR 272, HL; rvsg on other grounds.
Saif Ali v Sydney Mitchell & Co (a firm) [1978] 3 All ER 1033, [1980] AC 198, [1978] 3 WLR 849, HL.
Yuen Kun-yeu v A-G of Hong Kong [1987] 2 All ER 705, [1988] AC 175, [1987] 3 WLR 776, PC.

INTRODUCTION:
Appeal

The plaintiff, Anthony Welsh, appealed from the order of District Judge Bowyer, sitting as a registrar of the High Court on 7 February 1991 whereby he struck out pursuant to RSC Ord 18, r 19(1)(a) the plaintiff’s claim against the second defendant, the Crown Prosecution Service, for damages alleging that it negligently failed to ensure that the Ormskirk Magistrates’ Court, from which the plaintiff was on bail for two offences of theft, had been informed that the offences had subsequently been taken into consideration in the Crown Court and that, as a result of that failure, the magistrates’ court had issued a warrant for the plaintiff’s arrest resulting in his detention and that he thereby suffered loss, damage and distress. The first defendant, the Chief Constable of the Merseyside Police, against whom a similar claim had been made, was not involved in the striking-out application. The facts are set out in the judgment.

COUNSEL:
AT Goff for the plaintiff; Martyn Bennett for the Crown Prosecution Service.

JUDGMENT-READ:
Cur adv vult 27 March 1991. The following judgment was delivered.

PANEL: TUDOR EVANS J

JUDGMENTBY-1: TUDOR EVANS J

JUDGMENT-1:
TUDOR EVANS J: The plaintiff appeals against the order of District Judge Bowyer, sitting as a registrar of the High Court. On 7 February 1991 he struck out the plaintiff’s claim against the second defendant, the Crown Prosecution Service, pursuant to RSC Ord 18, r 19(1)(a) on the ground that the second defendant did not owe the plaintiff any duty in law.

The plaintiff claims damages against the first defendant (the Chief Constable of Merseyside Police) and the second defendant alleging that they negligently failed to ensure that a magistrates’ court, from which the plaintiff was on bail for two offences of theft, was informed that the offences had subsequently been taken into consideration at the Crown Court. It is alleged that, as a result of the failure, the magistrates’ court issued a warrant for the plaintiff’s arrest, that he was detained and that he thereby suffered loss, damage and distress.

There is no doubt that the warrant was lawfully issued and that the plaintiff’s arrest was lawful. It is not the plaintiff’s case that the second defendant maliciously and without reasonable cause brought about the plaintiff’s arrest. His case is that there was a want of care by the second defendant in failing to record the relevant information and/or to pass it on to the magistrates’ court or in failing to ensure that the advocate who appeared at the resumed hearing when the magistrates issued the warrant was properly instructed so that he could have told the court that the offences had been taken into consideration. The issue which I have to decide is whether the second defendant owed the plaintiff a duty of care.

It is the second defendant’s case that on any view of the law it is immune from these proceedings because of the provisions of s 2(5) of the Crown Proceedings Act 1947. If not generally immune, it is submitted that the advocate at the resumed hearing is immune from suit and that accordingly in that respect the second defendant is protected against this action. But it is also contended that the action is akin to an abuse of process and that malice is an integral part of such an action. According to counsel, any act or omission which results in a legal process causing a plaintiff loss and damage must be proved to be malicious. It is submitted that negligent abuse of process is a cause of action not known to the law.

Since the appeal comes before me under Ord 18, r 19, I have to decide the issue on the assumption that the facts pleaded in the reamended particulars of claim are true: see, for example, Hill v Chief Constable of West Yorkshire [1987] 1 All ER 1173 at 1176, [1988] QB 60 at 66 per Fox LJ. But Mr Bennett, counsel for the second defendant, conceded in the course of the hearing that the facts pleaded in para 4 of the defence of the first defendant are true. It was as the result of allegations pleaded in that paragraph that the plaintiff joined the second defendant in the action but the specific allegations have not been adopted in the reamended particulars of claim. Nevertheless, Mr Goff, counsel for the plaintiff, advanced part of his argument on the assumption that the matters pleaded in para 4 are true and I shall therefore assume them as fact.

The assumed facts upon which I shall decide the issue are these. (i) The second defendant is responsible, inter alia, for the preparation and the presentation of cases in magistrates’ courts and in the Crown Court. (ii) On 24 July 1987 the plaintiff appeared before the Ormskirk Magistrates’ Court charged with two offences of theft. He was remanded on bail to appear at the court on 19 August 1987. (iii) The plaintiff was due to appear on 7 August 1987 in the Crown Court at Liverpool to be dealt with for numerous criminal matters the details of which I need not repeat. They are contained in further and better particulars of the reamended particulars of claim. (iv) On 7 August 1987 in the Crown Court but before the case was called on, counsel then representing the plaintiff informed Det Con Kanczes, the officer in charge of the case, as well as counsel for the prosecution and a representative of the second defendant, that the plaintiff had been charged with the offences of theft at the Ormskirk Magistrates’ Court, that he intended to plead guilty to them and that he wanted to have the offences taken into consideration when he was sentenced in the Crown Court. (v) Det Con Kanczes was asked to contact the magistrates’ court to obtain the necessary details and for permission to have the offences taken into consideration. (vi) Upon telephoning the magistrates’ court, the detective constable was told by a police officer that the offences were suitable to be taken into consideration. (vii) He then spoke on the telephone to a solicitor employed by the Crown Prosecution Service (and I quote now from para 4(f) of the amended defence) —

‘responsible for Ormskirk who agreed to and approved the proposal that the said offences should be taken into consideration. The solicitor told Detective Constable Kanczes the particulars of the offence. Detective Constable Kanczes told the solicitor that the matter was being taken into consideration that morning (that is the 7th August 1987) and he asked the solicitor to indorse the file accordingly.’

It is agreed that the reference to ‘the offence’ in this passage is an error. It is common ground that two offences were to be and were in fact taken into consideration. (viii) The detective constable typed out ‘another offence’ form stating that on 20 November 1986 the plaintiff stole two purses. It is unnecessary to refer to the details. (ix) The detective constable took several copies of the form to the court where the plaintiff’s case was to be heard. He gave copies of the form to counsel for the prosecution, to counsel then appearing for the plaintiff and to the representative of the Crown Prosecution Service. Further, he told counsel for the prosecution that the Crown Prosecution Service ‘at Ormskirk’ had agreed to the offences being taken into consideration on that day. (x) It was agreed between the plaintiff’s legal advisers and counsel for the second defendant that the offence should be taken into consideration. (xi) On 7 August 1987 the plaintiff appeared before a judge in the Crown Court at Liverpool, who took the offences into consideration. (xii) On 19 August 1987 the plaintiff failed to answer to his bail at the Ormskirk Magistrates’ Court, believing that the magistrates had been informed that the offences had been taken into consideration. But the court was not aware of the fact and issued a warrant for his arrest not backed for bail. (xiii) At about 11.30 pm on Saturday, 19 December 1987 the plaintiff was arrested for the theft of a cassette. He was taken to a police station, where, at about 1.05 am the next day, police officers became aware of the warrant for the plaintiff’s arrest. They arrested the plaintiff. At about 4.00 am the plaintiff was bailed to appear at a police station for the theft of the cassette but he remained in custody because of the warrant. He was transferred to another police station, where he remained until he was released by the Ormskirk Magistrates’ Court on 21 December 1987. (xiv) Throughout the arrest, the plaintiff (and his father) protested that the warrant should not have been issued because all matters had been dealt with in the Crown Court at Liverpool.

Fact (iv) is derived from the particulars of claim and the further and better particulars thereunder and from para 4. They are not in conflict. Facts (v) to (ix) come from para 4.

There is a note in the file from the learned registrar in the course of which it is stated that the ‘plaintiff’s claim is for false imprisonment’. That is not so. On the facts as I have summarised them, it is alleged that the defendants owed the plaintiff a duty of care of which they were in breach. False imprisonment as a consequence of the negligence is an essential element of the claim for damages for loss, damage and distress: see para 5 of the reamended particulars of claim.

In so far as it relates to the second defendants, the duty of care is pleaded in para 3 of the reamended particulars of claim in these terms:

‘It was a duty of the representative of the second defendant present at the Liverpool Crown Court on the 7th August 1987 to record and/or to cause to be recorded and/or to pass on and/or to cause to be passed on the information that the plaintiff had had those offences taken into consideration when he was sentenced by His Honour Judge Pickering on the 7th August 1987. Further the representatives of the second defendant knew or should have known that if the aforesaid information was not recorded and/or passed on to the Ormskirk Magistrates’ Court, the said Ormskirk Magistrates’ Court would issue a warrant for the plaintiff’s arrest when he failed to attend at the Magistrates’ Court on the 19th August 1987. Further the representatives of the second defendant knew or should have known that following the aforesaid matters being taken into consideration the plaintiff would have been told that these matters had now been dealt with and that he need not appear at the Ormskirk Magistrates’ Court for sentence thereon. In the premise the representatives of the second defendant owed the plaintiff a duty of care.’

In answer to a request for further and better particulars of the particulars of claim, it is stated that the duty is not statutory: it is owed at common law and arose from the fact that the second defendant was responsible for the preparation and presentation of cases as stated in fact (i) above.

The duty as pleaded in confined to the representative at Liverpool Crown Court. But the facts in para 4 involve the passing on to the solicitor employed by the second defendant ‘for Ormskirk’ of information that the plaintiff was asking for the two offences to be taken into consideration, the solicitor’s agreement to that course and a request made to him ‘to mark the file accordingly’, which I shall interpret as meaning that he was asked to note on the file that the offences were to be taken into consideration in order that the information would be passed on or made available to the magistrates’ court so that the magistrates would be aware of what had happened. The question of duty therefore arises at three stages: first, at the Crown Court on 7 August 1987, secondly, when the information was conveyed on that date to the solicitor for Ormskirk and, thirdly, when the advocate appearing for the prosecution failed (as it is reasonable to infer that he did) to inform the magistrates that the offences had been taken into consideration.

Mr Goff submitted that the second defendant had an administrative responsibility to record or pass on the information, alternatively, if it did not have such a responsibility, it in practice passed on such information, alternatively that it is reasonable to infer that in this particular case it undertook to do so because of the facts in (vii) above. Counsel formulated the following proposition as containing the criteria by which it is necessary to decide whether a duty of care is owed to a particular plaintiff: first, it is necessary to consider the principle of reasonable foreseeability of loss and damage and, in so far as different factors may be involved, the question of proximity. It is then necessary to consider whether it would be fair, just and reasonable to hold such a duty to exist and finally the question has to be answered whether there is any ground of public policy for excluding a duty.

I have been referred to a large number of authorities in support of this proposition, but I need only list them since Mr Bennett accepted the proposition as I have stated it. The authorities to which I was referred are Anns v Merton London Borough [1977] 2 All ER 492, [1978] AC 728, Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1984] 3 All ER 529, [1985] AC 210, Yuen Kun-yeu v A-G of Hong Kong [1987] 2 All ER 705, [1988] AC 175, Davis v Radcliffe [1990] 2 All ER 536, [1990] 1 WLR 821, Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605, James McNaughton Papers Group Ltd v Hicks Anderson & Co (a firm) [1991] 1 All ER 134, [1991] 2 QB 113 and Morgan Crucible Co plc v Hill Samuel Bank Ltd [1991] 1 All ER 148, [1991] Ch 295.

Mr Bennett submitted that the second defendant did not have any administrative responsibility to pass on information. There is an affidavit sworn by Mr Nasser, a barrister employed by the Treasury Solicitor, in which he states:

‘I . . . contend that it is not part of the responsibility of the Crown Prosecution Service to record (save for its own purposes) such matters. The record of the proceedings is drawn up by an officer of the Court. Further, it is not part of the responsibility of the Crown Prosecution Service to pass on to an inferior Court such matters. The Crown Prosecution Service does not as a matter of practice receive papers regarding offences shown on TIC [taken into consideration] Forms and therefore cannot know whether such offences are the subject of proceedings or not in other courts.’

There is evidential material in the contention contained in this paragraph which would obviously be important when considering findings of fact at trial but the accuracy of which I cannot assume or assess at this stage.

But Mr Bennett submitted that, on authority, it is the duty of the police to make a record of offences taken into consideration. He relied upon R v Hicks (1924) 18 Cr App R 11, where Lord Hewart CJ said:

‘In this case . . . it is not easy to see what other charges were taken into account by the court below when it passed sentence. There is no note here on the indictment. The most convenient procedure is for the officer in charge of the case to make a list of the places, dates and offences alleged with which the court of trial is asked to deal, and to state also on what charges warrants have been issued. That list should be filed in the court below and in this Court.’

On the basis of this passage, which I agree is in the nature of a practice note, Mr Bennett submitted that it is the police who have the duty to make a note of offences which have been taken into consideration and that, so noted, the information will be passed on to any other court, superior or inferior, which has an interest in the case.

There is no direct evidence upon which I can decide whether the second defendant also had the responsibility to note or to send on the information or that they assumed it in practice. The Crown Prosecution Service was established by the Prosecution of Offences Act 1985. Neither in that Act nor in the Code for Crown Prosecutors, issued pursuant to s 10 of the Act, is there any indication of such a responsibility. The claim is put by the plaintiff as arising at common law and not from any statute. But Mr Goff relied on the fact that the second defendant is responsible for the preparation and prosecution of cases at the Crown Court and magistrates’ courts and was so in respect of the cases against the plaintiff in the Crown Court at Liverpool and the Ormskirk Magistrates’ Court. This suggests to me that the second defendant had some responsibility to keep the magistrates’ court informed, especially as it was in charge of a case which was still pending final disposal before the magistrates. If it is wrong to assume that the prosecution has a duty to keep the court informed as to the state of an adjourned criminal case, the matters contained in fact (vii) seem to be explicable at this stage only on the assumption that, at least in practice, the second defendant assumed a responsibility. Why else should the solicitor for Ormskirk be informed and then be asked to indorse the file? I think that it is reasonable to assume that the solicitor would not have been asked if it were not the practice for him to indorse the file. If the facts do not justify the inference of a practice it seems to me to follow from fact (vii) that on this occasion he was asked and he agreed to indorse the file. It is not suggested that he refused to do so. On this last assumption of fact, Mr Goff submitted that the second defendant on this occasion assumed a responsibility to pass on the information and that, in failing to do so, it was in breach of the duty. Counsel relied upon the decision of the Court of Appeal in Kirkham v Chief Constable of the Greater Manchester Police [1990] 3 All ER 246, [1990] 2 QB 283. In that case the police had assumed a responsibility to inform the prison authorities that a man in their custody and who subsequently committed suicide was suicidal but due to an oversight they failed to do so. They were held liable to the man’s widow.

Before I consider Mr Bennett’s submissions that there was no duty of care in law, I shall refer to his argument based on the Crown Proceedings Act 1947. Section 2(5) of that Act provides:

‘No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process.’

Mr Bennett relied on the disjunctive part of the subsection and he contended that, if the second defendant had an administrative responsibility or assumed it in practice or in this particular case, it was discharging a responsibility which it had in connection with the execution of a judicial process.

I do not accept that submission. In my opinion, the language of the subsection shows that it is directed to the immunity of judicial and not of administrative functions. It is a subsection which is dealing with judicial functions. In my view, recording that an offence has been taken into consideration or communicating the fact does not fall within the language of the subsection.

However, Mr Bennett’s submission that the second defendant is immune from any action based upon the failure of the advocate at the resumed hearing to inform the magistrates that the offences had been taken into consideration is well founded. It is not necessary to go further than the decision of the House of Lords in Saif Ali v Sydney Mitchell & Co (a firm) [1978] 3 All ER 1033, [1980] AC 198. That was a case in which a solicitor, sued in negligence by his client, sought indemnity or contribution from a barrister who was alleged to have been negligent in advising and in settling pleadings in accordance with the negligent advice. The House of Lords reaffirmed the immunity which a barrister has from an action for negligence in respect of his management of a case in court. This immunity has been recognised in the relationship between the professional and lay client on the one hand and the barrister instructed on their behalf on the other. Here, the relationship is between the prosecutor and the accused, parties not on the same side, but in my view this makes no difference bearing in mind that the immunity is based on a ground of public policy: see, for example, the speech of Lord Wilberforce in Saif Ali’s case [1978] 3 All ER 1033 at 1037, [1980] AC 198 at 212. Moreover, the immunity in respect of court proceedings extends to a solicitor acting as an advocate: see the speech of Lord Wilberforce ([1978] 3 All ER 1033 at 1039, [1980] AC 198 at 215). If, therefore, a solicitor acting on behalf of the second defendant failed as an advocate in court to inform the court that the offences had been taken into consideration, the second defendant and the solicitor would be immune from any action based on that failure.

I am therefore solely concerned with the question whether the second defendant owed the plaintiff a duty of care apart from what happened at the resumed hearing.

In support of his contention that this is an action for abuse of process and that an allegation of malice is an essential part of such action, Mr Bennett relied upon Roy v Prior [1970] 2 All ER 729, [1971] AC 470. It is necessary to consider the history of that case. The defendant was a solicitor. He acted for a man charged with larceny. The plaintiff was a doctor of whom the accused was a patient. It was thought that the plaintiff could give evidence helpful to the accused at his trial. A witness summons was issued by the defendant but not served on the plaintiff. The plaintiff claimed that the defendant did not take the necessary steps to inform him about the summons or to serve it. According to the plaintiff’s case, the defendant at the trial, acting maliciously and without reasonable or probable cause, instructed counsel to apply to the judge for a warrant of arrest. The defendant gave evidence in support of the application. The judge issued the warrant. The plaintiff was detained. He alleged that the defendant falsely stated on oath that the plaintiff was evading service. The defendant applied to strike out the statement of claim as disclosing no reasonable cause of action.

The matter came before the Court of Appeal (see [1969] 3 All ER 1153, [1970] 1 QB 283) on the defendant’s appeal from the refusal of a judge in chambers to strike out the action. It is necessary to consider how the action was framed. The plaintiff had drafted the pleading himself. Its terms are set out in the speech of Lord Morris of Borth-y-Gest ([1970] 2 All ER 729 at 732, [1971] AC 470 at 472-473). It was alleged in para 5 of the statement of claim that:

‘The Defendant omitted to take necessary and sufficient steps to intimate [sic] the plaintiff about the issue of the said witness summons; omitted to take necessary and sufficient steps to serve the witness summons . . .’

It was pleaded in para 9:

‘The Defendant conducted himself negligently in respect of the Plaintiff in that, having omitted to take necessary and sufficient steps to intimate [sic] the Plaintiff about issue of the witness summons and to take necessary and sufficient steps to serve the witness summons on the Plaintiff, he the Defendant, being a solicitor failed to ascertain the reasons for the non-attendance of the Plaintiff as a witness; made unfounded allegations of wilful evasion against the Plaintiff; and thus improperly caused the arrest and detention of the Plaintiff.’

Other allegations in the statement of claim were interpreted by the Court of Appeal as amounting to an action for procuring the plaintiff’s arrest and imprisonment by instituting judicial process maliciously and without reasonable cause.

The claim was unanimously struck out by the Court of Appeal on the ground that it was based on the evidence which had been given by the defendant at the criminal trial, and that, since there was an absolute immunity from suit in respect of the evidence of a witness on the ground of public policy, the action must fail. In so far as the action was based upon the instructions given by the defendant to counsel to apply for a bench warrant, it was struck out because the decisive factor was not the instructions to counsel but the defendant’s evidence and that the immunity of a witness was not capable of being outflanked by such a means. But the plaintiff also argued the case in negligence. This was rejected by Lord Denning MR in these terms ([1969] 3 All ER 1153 at 1155, [1970] 1 QB 283 at 288):

‘Next counsel for the plaintiff sought to say that an action would lie in negligence on the ground that there was a duty owed by the defendant to the plaintiff to take proper care before he made an application for a warrant. I do not go into the bounds of the duty of care, because the claim in negligence too must fail for the same reasons. No matter how an action is framed, it cannot be used as a way of getting round the high principle that a witness is not liable to a civil suit for words which he says in the witness box.’

Winn LJ described the claim in negligence as ‘impossible to sustain’, but he did not otherwise comment upon it (see [1969] 3 All ER 1153 at 1155, [1970] 1 QB 283 at 288).

Mr Bennett relied upon the passage from the judgment of Lord Denning MR for his proposition that there is no action for a negligent breach of process. It is to be noted that the Court of Appeal refused leave to appeal to the House of Lords but the Appeal Committee gave leave on terms that the pleading should be amended in order to disclose an action for malicious arrest. The House of Lords allowed the plaintiff’s appeal on the amended claim on the grounds that the plaintiff was not suing on the basis of the defendant’s evidence at the trial. The defendant’s evidence was but one step in the procuring of the plaintiff’s arrest by an abuse of the process of the court. The issue of negligence was not argued before the House of Lords and it is therefore submitted by Mr Bennett that the judgment on that issue in the Court of Appeal stands and that I am bound by it.

But the Court of Appeal rejected the claim in negligence on the ground that, however the cause of action may be framed, it could not be allowed to infringe the rule of public policy which protects evidence given by a witness. It seems to me that the Court of Appeal was considering a cause of action in negligence in relation to that principle alone. It was not considering whether an action in respect of acts or omissions which precede a court process can be framed in negligence, which is the issue I have to decide. Nevertheless, in deciding that issue, I must take into account the history of the causes of action which relate to court proceedings and related matters. They are malicious prosecution, abuse of process and misfeasance in a public office. Malice is an essential element in these torts. There is no reported case in which a negligent abuse of process has been recognised.

I think it appropriate here to consider the proposition agreed between the parties as containing the test by which to decide whether a duty of care exists. First, Mr Bennett accepted that it was reasonably foreseeable by the second defendant that the plaintiff would suffer loss if the magistrates’ court were not informed that the offences had been taken into consideration but he qualified this concession by submitting that the plaintiff was represented by solicitors and that the second defendant would therefore contemplate that the plaintiff’s solicitors would inform the court. In my view that is an argument based on causation, that is that the effective cause of the damage was the failure of the plaintiff’s solicitors to inform the court. Causation is not an argument available at this stage. Then Mr Bennett submitted that the parties were not proximate. He contended that they could not be neighbours bearing in mind that they were antagonists in adversarial litigation. Counsel relied on the decision of Scott J in Business Computers International Ltd v Registrar of Companies [1987] 3 All ER 465, [1988] Ch 229 and Al-Kandari v JR Brown & Co (a firm) [1988] 1 All ER 833, [1988] QB 665. In the latter case Lord Donaldson MR said ([1988] 1 All ER 833 at 835-836, [1988] QB 665 at 672):

‘A solicitor acting for a party who is engaged in “hostile” litigation owes a duty to his client and to the court, but he does not normally owe any duty to his client’s opponent (see Business Computers International Ltd v Registrar of Companies [1987] 3 All ER 465, [1988] Ch 229). This is not to say that, if the solicitor is guilty of professional misconduct and someone other than his client is damnified thereby, that person is without a remedy, for the court exercises a supervisory jurisdiction over solicitors as officers of the court and, in an appropriate case, will order the solicitor to pay compensation (see Myers v Elman [1939] 4 All ER 484, [1940] AC 282). That said, it should be emphasised that in the present case there is no allegation and no suspicion of any misconduct on the part of the defendant solicitors.’

Both of these cases were concerned with civil litigation. I think that it is highly arguable that the Crown Prosecution Service, responsible for the preparation and presentation of criminal charges of many types and of varying gravity is not in the same position as a solicitor acting at arm’s length in adversarial civil litigation. The traditions which govern the attitude of a prosecutor in criminal cases in this country suggest otherwise. The Code for Prosecutors issued under the powers conferred by s 10 of the 1985 Act stating, for example in para 8, the factors to be taken into consideration when deciding whether to prosecute in cases where a conviction might otherwise be secured is another example which emphasises the difference. There are many other instances: for example, the duty to make available to the defence witnesses who can give material evidence and whom the prosecution do not intend to call and also the obligation to inform the defence of any previous convictions of a prosecution witness. All these practices are alien to civil litigation.

Apart from Mr Goff’s other submissions on proximity, the question of proximity is raised by the plaintiff as arising from fact (vii), that is that the ‘solicitor for Ormskirk’ approved of the offences being taken into consideration and, by reasonable inference, he agreed to note the file. The plaintiff relies in this context on Kirkham v Chief Constable of the Greater Manchester Police [1990] 3 All ER 246 at 250, [1990] 2 QB 283 at 289, where Lloyd LJ said:

‘The question depends in each case on whether, having regard to the particular relationship between the parties, the defendant has assumed a responsibility towards the plaintiff, and whether the plaintiff has relied on that assumption of responsibility.’

In my view the solicitor for Ormskirk assumed responsibility towards the plaintiff on the basis of fact (vii) or at least it is highly arguable that he did. Moreover, the assumed facts show that the plaintiff was relying on that responsibility. He did not expect to have to answer to his bail. Mr Bennett contended that the plaintiff had not pleaded the case on this basis, but that is a difficult argument for the second defendant bearing in mind that the plaintiff’s case on this aspect of the facts arises out of matters in para 4 of the amended defence of the first defendant conceded by Mr Bennett to be true.

Next, in my view it is fair, just and reasonable to hold that a duty of care exists on the assumed facts of this case. Mr Bennett submitted that it would be wrong to look at this aspect of the question of duty within the narrow confines of this case. There may be cases, he contended, in which there are a very large number of offences taken into consideration and the burden on the second defendant would be such that it would not be fair or just or reasonable to cast a duty. I do not agree.

Finally, is there any ground of public policy for excluding a duty? To hold that a duty exists does not impugn the decision of the magistrates’ court. It does not infringe any of the immunities which arise from the conduct of cases or from the evidence of witnesses. In Business Computers International Ltd v Registrar of Companies [1987] 3 All ER 465, [1988] Ch 229 Scott J, in rejecting the existence of a duty of care in the circumstances of that case, was influenced by the existence of safeguards against impropriety which are to be found in the rules and procedure that controlled the litigation. There are none such on the facts of the present case. I can find no reason for excluding a duty on the grounds of public policy.

It follows that in my view, by every one of the agreed tokens by which to test the existence of a duty, a duty is found to exist. Mr Bennett has not produced an authority which unambiguously states that proof of malice is an integral part in an action which touches on a judicial process. No authority has been produced to show that a duty of care cannot exist at stages anterior to litigation or resumed litigation. In these circumstances, subject to one or two other arguments raised by Mr Bennett, I would decline to strike out this action.

In the first of these arguments, Mr Bennett submitted that the plaintiff’s claim is flawed since it is based upon the misconception that, because the judge took the two offences into account, it must follow that they ceased to exist. It is said that the offences did not cease to exist and that the plaintiff is still accountable for them. Counsel referred to R v Batchelor (1952) 36 Cr App R 64 at 67-68, in which Lord Goddard CJ, delivering the judgment of the court, considered the effect of taking offences into consideration. He said:

‘Everyone knows now — at least, I hope they do — what is the effect of taking offences into account. It is a convention; it is not statutory. I have often thought it would have been a good thing if the matter had been dealt with by statute in the Criminal Justice Act, 1948, but it was not. It is simply a convention under which, if a court is informed that there are outstanding charges against a prisoner who is before it for a particular offence, the court can, if the prisoner admits the offences and asks that they should be taken into account, take them into account, which means that the court can give a longer sentence than it would if it were dealing with him only on the charge mentioned in the indictment. But, technically, taking offences into account does not amount to a conviction. That was decided in this court not very long ago where a man had been charged with an offence and found Guilty by a jury and then had asked for another offence to be taken into consideration, which was done. Then he appealed against the conviction for what I may call the main offence and this court set aside the conviction. Then the man was rearrested and charged with the offence which had been taken into consideration. In one case (McMINN ((1945) 30 Cr App R 138)) a judge on circuit had held that the taking into consideration of an offence amounted to a conviction on which a plea of autrefois convict could be based. But an appeal to this court in another case (NICHOLSON ((1948) 32 Cr App R 98 at 127)) showed that that decision was wrong, and that the prisoner had never been convicted of the offence taken into consideration, and it was right that he should be tried for it, because, although the sentence for the original offence for which he had been tried was probably longer than it would have been had the offence not been taken into consideration, as that conviction was quashed, he had never been punished or tried for the offence which had been taken into consideration. Therefore, we said that it was quite proper to try him for the second offence which had been taken into consideration but had not been the subject of a charge.’

In this case, it is difficult to envisage circumstances in which the offences which were taken into consideration could be revived, bearing in mind that the plaintiff pleaded guilty to the matters for which he appeared before the Crown Court at Liverpool on 7 August (the main offence) and that since these matters could not be revived neither could the offences which were taken into consideration. But I must accept what the court said in R v Batchelor (1982) 36 Cr App R 64, whatever may be the reality in this particular case. Mr Bennett argued, on the basis of R v Batchelor, that, since the plaintiff could still be convicted of the offences taken into consideration, the negligent failure to transmit the information to the Ormskirk court is irrelevant. In my view, that is not an argument which goes to the question whether a duty was owed; it might go to the question whether the alleged negligence caused the plaintiff damage. But causation is not a matter for decision at this stage.

A further argument raised by Mr Bennett was that the Crown Prosecution Service is a single persona and that, on any view of the facts, it was seised of the two matters which were taken into consideration. It was therefore argued, as I understood it, that the Crown Prosecution Service was seised of the two matters and that the question of transmitting information from one branch of the service to another cannot arise. This argument overlooks the fact that the second defendant is responsible for the negligent acts and omissions of its servants.

I can only strike out an action under RSC Ord 18, r 19 in a plain and obvious case. The power conferred by the rule can only be exercised where the case is clear beyond doubt: see the authorities cited in The Supreme Court Practice 1991 Vol 1, para 18/19/3 and see also the judgment of Balcombe LJ in Clarke v Bruce Lance & Co (a firm) [1988] 1 All ER 364 at 366, [1988] 1 WLR 881 at 884, to which I was specifically referred. This is far from being a plain and obvious case. In my judgment the appeal must be allowed.

DISPOSITION:
Appeal allowed.

SOLICITORS:
Canter Levin & Berg, Liverpool; Treasury Solicitor.

Evidence – Expert evidence – Immunity from suit – Expert preparing report and advising plaintiffs in connection with action – Plaintiffs abandoning action after expert’s evidence given – Plaintiffs’ claim for breach of duty against expert – Extent of expert’s immunity – Whether claim to be struck out Practice – Pleadings – Striking out – Abuse of process – Plaintiffs’ claim against expert for breach of duty – Allegation of negligent advice resulting in dismissal of previous action – Expert’s immunity from suit in respect of evidence and preliminary work connected therewith – Whether consent judgment final decision – Whether action against expert impugning final decision of competent court – Whether to be struck out: PALMER and Another v DURNFORD FORD (A FIRM) and Another [QUEEN’S BENCH DIVISION] (United Kingdom)

[1992] QB 483

PALMER and Another v DURNFORD FORD (A FIRM) and Another
[QUEEN’S BENCH DIVISION]
[1992] QB 483
HEARING-DATES: 24, 31 October 1991
31 October 1991

CATCHWORDS:
Evidence – Expert evidence – Immunity from suit – Expert preparing report and advising plaintiffs in connection with action – Plaintiffs abandoning action after expert’s evidence given – Plaintiffs’ claim for breach of duty against expert – Extent of expert’s immunity – Whether claim to be struck out Practice – Pleadings – Striking out – Abuse of process – Plaintiffs’ claim against expert for breach of duty – Allegation of negligent advice resulting in dismissal of previous action – Expert’s immunity from suit in respect of evidence and preliminary work connected therewith – Whether consent judgment final decision – Whether action against expert impugning final decision of competent court – Whether to be struck out

HEADNOTE:
The plaintiff haulage contractors instructed solicitors to act for them in connection with two breakdowns of their lorry tractor unit. The solicitors retained an engineer as an expert to prepare a report on the cause of the breakdowns. He advised that the plaintiffs had good claims against both the vendor and the repairer and proceedings were commenced accordingly. Following the exchange of experts’ reports prior to trial, however, the expert advised that he would have difficulty supporting the claim against the vendor although that against the repairer was still justified. At trial after the expert had given evidence the plaintiffs abandoned their claims and by consent judgment was entered for the vendor and the repairer.

The plaintiffs brought an action against the solicitors and the expert for breach of their contractual duties of care claiming, inter alia, that the expert was not sufficiently qualified to advise, that he should have advised from the outset that they had no claim against the vendor and that his persistence in an obviously wrong view about the repairer’s work had so damaged his credibility before trial that their partly meritorious claim against the repairer had had to be abandoned. The district judge granted the expert’s application to strike out the writ and statement of claim as against him on the ground that it disclosed no reasonable cause of action because he had at all times been acting in the course of preparing evidence for a claim or possible claim and was therefore immune from suit.

On the plaintiffs’ appeal and on the solicitors’ summons to strike out the statement of claim on the ground that it was an abuse of the process of the court because it sought to impugn the correctness of a final decision of a court of competent jurisdiction: –

Held, (1) allowing the appeal, that, since immunity from suit was based upon public policy and was conferred only where absolutely necessary, expert witnesses were prima facie immune only in so far as it was necessary to prevent them being inhibited from giving truthful and fair evidence in court; that the existence of liability for failure to give careful advice to a client should not normally so inhibit an expert witness and his immunity would extend only to evidence given in court and

work which was preliminary to his giving such evidence, so that production or approval of a report for the purposes of disclosure would beimmune but work done for the principal purpose of advising the client would not; and that, accordingly, since it was not plain and obvious that all the expert’s alleged breaches of duty were immune from suit, the statement of claim should not be struck out as disclosing no reasonable cause of action (post, pp. 488C-E, G-489C).

Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198, H.L.(E.) applied.

(2) That notwithstanding that the court had not pronounced on the merits of the plaintiffs’ claim against the repairer the consent judgment constituted a final decision on that claim; and that since the plaintiffs necessarily had to impugn that decision in order to establish their contention that part of their claim against the repairers had been good, that part of their statement of claim which supported that contention would be struck out as an abuse of the process of the court (post, pp. 489G-490B).

INTRODUCTION:
APPEAL from District Judge Catlin.

SUMMONS

By a writ issued from the Eastbourne District Registry on 28 March 1989 and statement of claim served on 20 June 1990 the plaintiffs, Peter Brian Palmer and Marion Patricia Palmer, claimed against the defendants, Durnford Ford, a firm of solicitors, and David J. Neve, a consultant engineer, damages for breaches of the duty of care owed to the plaintiffs by reason of the terms of their respective retainers as solicitors and expert

in connection with the prosecution of the plaintiffs’ unsuccessful claim against two companies which had respectively sold the plaintiffs a lorry tractor unit and purported to repair it when it had broken down.

By a summons dated 13 December 1990 the expert applied under R.S.C., Ord. 18, r. 19 and/or the inherent jurisdiction of the court for the plaintiffs’ claim against him to be struck out on the ground that the writ and statement of claim disclosed no reasonable cause of action against him and/or was an abuse of the process of the court since, as an expert witness, he was immune from suit. On 12 July 1991 District Judge Catlin granted the application and struck out the claim as against the expert. By a notice of appeal dated 16 July 1991 the plaintiffs appealed.

By a summons dated 18 March 1991 the solicitors applied under R.S.C., Ord. 18, r. 19(d) for the statement of claim to be struck out on the ground that the proceedings were an abuse of the process of the court in that they sought to attack a previous decision of a court of competent jurisdiction.

The appeal and the summons were heard together in chambers but judgment was given in open court.

The facts are stated in the judgment.

COUNSEL:
Nicholas Wood for the plaintiffs.

Laurence Marsh for the solicitors.

Charles Utley for the expert.

Cur. adv. vult.

31 October. The following judgment was handed down.

PANEL: Simon Tuckey Q.C. sitting as adeputy High Court judge

JUDGMENTBY-1: MR. SIMON TUCKEY Q.C

JUDGMENT-1:
MR. SIMON TUCKEY Q.C:

Introduction

This is an appeal by the plaintiffs from a decision of District Judge Catlin on 12 July 1991 who, on the application of the second defendant (“the expert”), struck out the writ and statement of claim on the ground that they disclosed no reasonable cause of action. There is also a summons by the first defendants (“the solicitors”) (which I have heard by consent pursuant to R.S.C., Ord. 32, r. 12 and upon which the expert also relies if the appeal is allowed) to strike out the statement of claim on the ground that it is an abuse of the process of court.

The appeal raises the question as to whether an expert can be sued in respect of any and if so what pre-trial work which he does for his client. The summons raises the question as to whether the pleading impugns the correctness of a previous decision of the court. Both questions are of some importance and the parties are agreed that it is appropriate to give this judgment in open court.

The statement of claim

The facts alleged in the statement of claim (which runs to 64 paragraphs) may be summarised as follows. The plaintiffs are haulage contractors. In

September 1978 they bought a new lorry tractor unit from Leyland Vehicles Ltd. It broke down in May 1981 and its engine was repaired by Arlington Motor Company Ltd. In July 1981 the plaintiff sought legal advice from the solicitors as to whether they could recover the cost of the repair and their consequential losses from Leyland. In January 1982, after assurances by him that he had the necessary qualifications and experience, the solicitors retained the expert, who is an engineer, to prepare a report on the cause of the breakdown of the engine. However, before he had reported the engine again broke down and the plaintiffs instructions to the solicitors and their instructions to the expert were extended to include this second breakdown. After inspecting the engine the expert produced a written report dated 12 February 1982 which advised that claims against Leyland and Arlington were justified. Based on this report and counsel’s advice the plaintiffs obtained a full legal aid certificate to take proceedings which were issued in January 1983. In due course the date for the trial was fixed for 7 October 1985. As the expert was to be called to give evidence in support of the plaintiffs’ claim his written report was disclosed to Leyland and Arlington. Leyland and Arlington then disclosed their own experts reports. Having seen these reports the expert advised that he would have difficulty supporting the claim against Leyland but that the claim against Arlington was still justified including a claim that when they had repaired the engine Arlington had unnecessarily replaced certain parts. On 8 October 1985, after the first plaintiff and the expert had given evidence, the plaintiffs abandoned their claims and by consent judgment was given for Leyland and Arlington with costs.

In these proceedings the plaintiffs allege that both the solicitors and the expert were in breach of their contractual duty of care. Against the solicitors it is alleged that they should not have instructed the expert, that they were responsible for the fact that the weakness of the plaintiffs case against Leyland was not appreciated until shortly before the trial and that they allowed this weakness to cloud and obscure a partly meritorious claim against Arlington. Against the expert it is alleged that he should not have accepted the retainer because he lacked the necessary qualifications and experience, that he should have advised from the outset that no claim against Leyland was justified and that he persisted in an obviously wrong view that Arlington had unnecessarily replaced parts. In this way it is alleged that he had so damaged his credibility before trial that the partly meritorious claim against Arlington had to be abandoned as well as the claim against Leyland. The plaintiffs claim damages for their losses which have resulted from pursuing the unmeritorious claim against Leyland and the loss of the opportunity to make good some part of their claim against Arlington.

The allegations made by the plaintiffs in the statement of claim are denied by both defendants but for present purposes I must assume that the facts alleged are true. I should only strike the pleading out if it is plain and obvious that this should be done.

The appeal

The expert’s successful application to the district judge was made on the ground that he was immune from suit because he was at all times acting in the course of preparing evidence for a claim or possible claim.

It is well settled that witnesses in either civil or criminal proceedings enjoy immunity from any form of civil action in respect of evidence given during those proceedings. The reason for this immunity is so that witnesses may give their evidence fearlessly and to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again: see Roy v. Prior [1971] A.C. 470, 480. This immunity has also been held to apply to the preparation of the evidence which is to be given in court. Thus in Marrinan v. Vibart [1963] 1 Q.B. 528, where the plaintiff sought to sue police officers who had prepared a report for the Director of Public Prosecutions and appeared as witnesses against him at his criminal trial, the court said, at p. 535, that the immunity “protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given.”

In Evans v. London Hospital Medical College (University of London)[1981] 1 W.L.R. 184 the plaintiff sued doctors and their employer for negligently investigating the circumstances in which the plaintiffs’ baby died which resulted in her being prosecuted for murder. Drake J. held that the immunity extended to cover the collection and analysis of material relevant to the offence or possible offence under investigation and was not confined to the preparation of the witnesses’ formal statement or proof of evidence. He said, at pp. 191-192:

“. . . I think it essential that the immunity given to a witness should also extend to cover statements he makes prior to the issue of a writ or commencement of a prosecution, provided that the statement is made for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered. In a large number of criminal cases the police have collected statements from witnesses before anyone is charged with an offence; indeed sometimes before it is known whether or not any criminal offence has been committed. If immunity did not extend to such statements it would mean that the immunity attaching 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 that Drake J. was directing his mind specifically to the position of witnesses in criminal or potential criminal proceedings although he does refer in the passage I have cited to statements made prior to the issue of a writ. He did however make it clear, at p. 190, that “It remains, of course, a question to be decided on the facts of each case . . . whether or not the negligent act or omission arose during the course of preparation of the evidence.”

In this case the expert was retained for reward by the plaintiffs to advise them as to whether from an engineering point of view a civil claim against Leyland and/or Arlington was justified. The previous cases have been concerned with witnesses who have given or were to give evidence, usually in criminal proceedings, “against” the plaintiffs. There is no English authority dealing with the position of an expert in circumstances such as those which exist in this case. Nor has this point been considered, as far as counsel have been able to discover, in any other common law jurisdiction.

Mr. Utley, counsel for the expert, submits that whenever an expert is retained with the possibility that he may have to give evidence in court, he is immune from suit for everything which he does. Thus, he accepts that the immunity would extend to a case where an expert negligently advised that there was no claim with the result that the plaintiff did not pursue it and suffered loss because, for example, by the time he realised he had a good claim it has become statute barred.

In considering whether the immunity is so far reaching, I approach the matter by noting first that experts are usually liable to their clients for advice given in breach of their contractual duty of care and secondly that the immunity is based upon public policy and should therefore only be conferred where it is absolutely necessary to do so. Thus, prima facie the immunity should only be given where to deny it would mean that expert witnesses would be inhibited from giving truthful and fair evidence in court. Generally I do not think that liability for failure to give careful advice to his client should inhibit an expert from giving truthful and fair evidence in court.

Accordingly I do not accept that the immunity can be as wide as that contended for. I can see no good reason why an expert should not be liable for the advice which he gives to his client as to the merits of the claim, particularly if proceedings have not been started, and a fortiori as to whether he is qualified to advise at all. Since both these allegations are made in this case I do not think that the decision to strike out the whole of the statement of claim can be justified. At least it is not plain and obvious that this should be done.

The problem is where to draw the line given that there is immunity for evidence given in court and it must extend to the preparation of such evidence to avoid the immunity being outflanked and rendered of little use. This problem was considered by the House of Lords in Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198 in the analogous but not identical situation of the advocate’s immunity from suit for what he does in court. In that case the House decided that the immunity extended to some pre-trial work but only where the particular work was so intimately connected with the conduct of the case in court that it could fairly be said to be a preliminary decision affecting the way that the case was to be conducted when it came to a hearing.

I think a similar approach could be adopted in the case of an expert. Thus, the immunity would only extend to what could fairly be said to be preliminary to his giving evidence in court judged perhaps by the principal purpose for which the work was done. So the production or approval of a report for the purposes of disclosure to the other side would be immune but work done for the principal purpose of advising the client would not.

Each case would depend upon its own facts with the court concerned to protect the expert from liability for the evidence which he gave in court and the work principally and proximately leading thereto. I do not think that difficulty in drawing the line precisely should result in a plaintiff in a case such as this being denied all remedy against his expert.

For the reasons which I have given I do not think that it was right to strike out those parts of the plaintiffs’ claim against the expert which allege that he should not have advised at all because he was not qualified to do so and that he was negligent in advising in his written report of 12 February 1982 that there was a good claim against Leyland. The history of the expert’s involvement after 12 February 1982 is complex. It is not possible to see from the statement of claim whether any and if so which of the allegations which are made fall the wrong side of the line so that the expert cannot be held liable in respect of them. Some or indeed all of them may do so, but this is not plain and obvious and so I cannot strike them out at this stage. The trial judge will be in a much better position to decide where the line should be drawn when he has heard all the evidence.

The summons

The question raised by the summons is related to that on the appeal because it concerns the principle that it is an abuse of the process of the court to bring an action which impugns the correctness of a final decision of a court of competent jurisdiction. As I have said the immunity of a witness is based partly on the need to ensure that the value or truth of the evidence upon which such a decision is based also cannot be impugned.

The principle has been considered in a number of recent cases including Hunter v. Chief Constable of the West Midlands Police [1982] A.C. 529, 541-542, Somasundaram v. M. Julius Melchoir & Co. [1988] 1 W.L.R. 1394 and Sinanan v. Innes Pitassi & Co. (unreported), 20 February 1991; Court of Appeal (Civil Division) Transcript No. 125 of 1991. Where it is shown that a plaintiff’s claim necessarily involves saying (either to establish liability or loss) that a previous decision of the court is wrong it will be struck out because

“it would . . . be undesirable in the interests of the fair and efficient administration of justice to tolerate a system under which, as a sort of by-product after the trial of an action and after any appeal or appeals, there were litigation upon litigation with the possibility of a recurring chain-like course of litigation:” per Lord Morris of Borth-y-Gest in Rondel v. Worsley [1969] 1 A.C. 191, 251.

Two questions arise in the instant case: (a) whether there has been a final decision of the court and (b) if so, whether and if so to what extent the plaintiffs’ claim seeks to impugn it.

As I have already said after a day or so of the trial the court made an order by consent that there be judgment for Leyland and Arlington against the plaintiffs on the claims which they had made. The plaintiffs contend that this was not a final decision of the court because the court did not itself pronounce on the merits of the claims. I disagree. I think that a final decision for this purpose is one which would give rise to a plea of res judicata. Such a decision is one which leaves nothing to be judicially

determined or ascertained thereafter in order to render it effective. Applying this test there can be no doubt that the decision of the court was a final one. Any attempt to resurrect the claims against Leyland or Arlington could be met by a successful plea of res judicata. It does not matter that the judgment was by consent: see Cohen v. Jonesco[1926] 1 K.B. 119, 125.

To what extent, if any, does the plaintiffs’ claim in these proceedings seek to impugn the earlier decision? The plaintiffs accept that there was no claim against Leyland. They do not therefore seek to impugn the earlier decision in this respect. However they do contend that part of their original claim against Arlington was good. In order to establish this they necessarily have to impugn the earlier decision. On the authorities to which I have referred this part of their claim must be struck out as an abuse of the process of court.

Conclusion

(1) The appeal is allowed. (2) On the summons, paragraphs 57(1), the last nine words of paragraph 60(11), paragraphs 60(12), 61(8), 61(9) and 62(3) of the statement of claim and paragraphs 3 and 6 of the schedule thereto be struck out.

DISPOSITION:
Appeal allowed with costs.

Application granted in part.

Leave to appeal.

Legal aid taxation of plaintiffs’ costs.

SOLICITORS:
Solicitors: Mayo & Perkins, Eastbourne; Blake Lapthorn, Fareham; Perring & Co., Hastings.

[Reported by Mrs. Gurinder Gosal, Barrister]

(c)2001 The Incorporated Council of Law Reporting for England & Wales

Action – Immunity from civil action – Privilege of witness in court of justice – No immunity where gist of action malicious abuse of process of court – Action not defeated merely because alleged abuse included giving of false evidence – Evidence given by solicitor to support application for bench warrant – Action for malicious arrest against solicitor – Claim including allegation of perjury by solicitor – Refusal to strike out statement of claim: Roy v Prior , HOUSE OF LORDS (United Kingdom)

[1971] AC 470, [1970] 1 QB 283, [1970] 2 All ER 729, [1969] 3 WLR 635, 134 JP 615

Roy v Prior
HOUSE OF LORDS
[1971] AC 470, [1970] 1 QB 283, [1970] 2 All ER 729, [1969] 3 WLR 635, 134 JP 615
HEARING-DATES: 20, 21 APRIL 7 JULY 1970
7 JULY 1970
CATCHWORDS:
Action – Immunity from civil action – Privilege of witness in court of justice – No immunity where gist of action malicious abuse of process of court – Action not defeated merely because alleged abuse included giving of false evidence – Evidence given by solicitor to support application for bench warrant – Action for malicious arrest against solicitor – Claim including allegation of perjury by solicitor – Refusal to strike out statement of claim.

HEADNOTE:
The defendant, a solicitor acting for A (who had been charged with a criminal offence) issued a witness summons requiring the plaintiff to attend as a witness at A’s trial. The plaintiff failed to attend. After the defendant had stated on oath that the plaintiff was evading service of the summons, the plaintiff was arrested on a warrant issued by the trial judge and brought to court to give evidence. The plaintiff brought a civil action against the defendant for malicious arrest. The plaintiff claimed that the defendant did not take necessary or sufficient steps to inform the plaintiff of the issue of the witness summons or to serve it on the plaintiff. The plaintiff by his amended statement of claim further alleged that the defendant maliciously and without reasonable or probable cause instructed counsel to apply to the trial judge for a warrant to arrest the plaintiff and that in support of the application the defendant falsely stated on oath that the plaintiff was evading service of the witness summons, and caused and procured the issue of the warrant on which the plaintiff was arrested. On appeal against an order striking out the plaintiff’s statement of claim and dismissing his action, made on the ground that the arrest of the plaintiff was caused by the evidence given by the defendant in court and that a witness may not be sued for what he says in the witness box,

Held – The appeal would be allowed, because —

(i) the plaintiff was not suing the defendant on or in respect of the evidence which the defendant gave in court but because the plaintiff alleged that the defendant procured his arrest by means of judicial process which the defendant instigated both maliciously and without reasonable cause; in actions based on alleged abuses of the process of the court, the court would often have been induced to act by false evidence, but the actions were not brought on or in respect of any evidence given but in respect of malicious abuse of process (see p 731 a, p 733 f, p 733 j to p 734 b, p 735 j and p 736 f, post);

(ii) the existence of the well-settled rule that no action would lie against a witness for words spoken in giving evidence in court, even if the evidence was false and malicious, did not mean that an action brought in respect of an alleged abuse of process of court must be defeated if one step in the abuse of process involved or necessitated the giving of evidence (see p 731 a, p 733 g and j, p 735 h and j and p 736 a and f, post); Daniels v Fielding (1846) 16 M & W 200, Revis v Smith (1856) 18 CB 126, Melia v Neate (1863) 3 F & F 757 and Johnson v Emerson (1871) LR 3 Exch 329 applied;

(iii) (per Lord Wilberforce) the reasons of public policy for which immunity was traditionally conferred on evidence given in court did not apply to evidence given in support of a bench warrant, which was given ex parte and in circumstances in which the person against whom the warrant was sought had no means, and no other party had any interest, in challenging the evidence; so far from the public interest requiring that such evidence be given absolute protection, that interest required that it should have been given carefully, responsibly and impartially; to deny a person whose liberty had been interfered with any opportunity of showing that it was ill-founded and malicious was a far more serious denial than the denial of the right to attack a witness to an issue which had been tested and passed upon after a trial (see p 736 d and e, post).

Decision of the Court of Appeal [1969] 3 All ER 1153 reversed.

NOTES:
For malicious arrest, see 25 Halsbury’s Laws (3rd Edn) 370-372, paras 723-727, and for cases on the subject, see 33 Digest (Repl) 396-398, 95-110.

For the privilege of witnesses against actions for evidence given, see 24 Halsbury’s Laws (3rd Edn) 48, para 89, and for cases on the subject, see 32 Digest (Repl) 123, 124, 1440-1453.

CASES-REF-TO:

Daniels v Fielding (1846) 16 M & W 200, 16 LJEx 153, 8 LTOS 474, 11 JP 538, 153 ER 1159, 33 Digest (Repl) 406, 223.
Dawkins v Lord Rokeby (1873) LR 8 QB 255, 42 LJQB 63, 28 LT 134; affd HL (1875) LR 7 HL 744, [1874-80] All ER Rep 994, 45 JLQB 8, 33 LT 196, 4 JP 20, 32 Digest (Repl) 119, 1404.
Elsee v Smith (1822) 2 Chit 304, 33 Digest (Repl) 387, 5.
Hargreaves v Bretherton [1958] 3 All ER 122, [1959] 1 QB 45, [1958] 3 WLR 463, 1 Digest (Repl) 28, 278.
Johnson v Emerson (1871) LR 3 Exch 329, 40 LJEx 201, 25 LT 337, 33 Digest (Repl) 405, 199.
Marrinan v Vibart [1962] 1 All ER 869, [1963] 1 QB 234, [1962] 2 WLR 1224; affd CA [1962] 3 All ER 380, [1963] 1 QB 528, [1962] 3 WLR 912, Digest (Cont Vol A) 536, 4147a.
Melia v Neate (1863) 3 F & F 757, 33 Digest (Repl) 412, 297.
Revis v Smith (1856) 18 CB 126, 25 LJCP 195, 25 LTOS 106, 20 JP 453, 139 ER 1314, 32 Digest (Repl) 123, 1447.
Ross v Norman (1850) 5 Exch 359, 191 LJEx 329, 15 LTOS 208, 155 ER 157, 33 Digest (Repl) 417, 360.
Watson v M’Ewan, Watson v Jones [1905] AC 480, [1904-07] All ER Rep 1, 74 LJPC 151, 93 LT 480, 32 Digest (Repl) 126, 1476.
Whitworth v Hall (1831) 2 B & Ad 695, [1824-34] All ER Rep 484, 9 LJOSKB 297, 109 ER 1302, 33 Digest (Repl) 400, 143.

INTRODUCTION:
Appeal. This was an appeal by the plaintiff, Premananda Roy, from an order of the Court of Appeal (Lord Denning MR, Winn and Cross LJJ) dated 15th July 1969 and reported [1969] 3 All ER 1153, allowing the appeal of the defendant, Ronald Albert Prior, from an order of MacKenna J dated 25th June 1969 dismissing the appeal of the defendant from an order of Master Jacob dated 25th March 1969 refusing to strike out the statement of claim and dismiss the plaintiff’s action for damages for malicious arrest. The facts are set out in the opinion of Lord Morris of Borth-y-Gest.

COUNSEL:
Hugh Griffiths QC and E R Meyer for the plaintiff. J Lloyd-Eley QC and R E Rhodes for the defendant.

JUDGMENT-READ:
Their Lordships took time for consideration.

7th July. The following opinions were delivered.

PANEL: LORD REID, LORD MORRIS OF BORTH-Y-GEST, VISCOUNT DILHORNE, LORD WILBERFORCE AND LORD DIPLOCK

JUDGMENTBY-1: LORD REID

JUDGMENT-1:
LORD REID. My Lords, for the reasons given by my noble and learned friend Lord Morris of Borth-y-Gest I would allow this appeal.

JUDGMENTBY-2: LORD MORRIS OF BORTH-Y-GEST.

JUDGMENT-2:
LORD MORRIS OF BORTH-Y-GEST. My Lords, the appellant (the plaintiff) brought a civil action against the respondent (the defendant) claiming damages for malicious arrest. The plaintiff who is a medical practitioner alleges that the defendant who is a solicitor wrongly procured his (the plaintiff’s) arrest and imprisonment by instituting judicial process maliciously and without reasonable cause.

The defendant acted on behalf of a Mr Advani who was charged with a criminal offence and who was tried at the Central Criminal Court. Mr Advani had been a patient of the plaintiff. It was thought that the plaintiff could give medical evidence as to Mr Advani’s responsibility for his actions. The defendant on or about 27th May 1968 issued a witness summons requiring the plaintiff to attend as a witness at the trial of Mr Advani.The plaintiff claims that the defendant did not take the necessary steps to tell him (the plaintiff) of the issue of the summons or to serve it. The trial of Mr Advani took place some 16 days later, ie on 12th June 1968. The plaintiff claims that on that date the defendant, acting maliciously and without reasonable or probable cause, instructed counsel to apply to the trial judge for the issue of a warrant for the arrest of the plaintiff and that in support of the application he (the defendant) falsely stated on oath that the plaintiff was evading service. The result was that a warrant stated on oath that the plaintiff was evading service. The result was that a warrant was issued. At about 1.00 am on 13th June 1968 the plaintiff was arrested. He was them imprisoned and kept in custody until he was brought to court at 10.30 am. Later he gave evidence.

It is provided as follows by the Criminal Procedure (Attendance of Witnesses) Act 1965:

‘2. (1) For the purpose of any criminal proceedings before a court of assize or quarter sessions a witness summons, that is to say, a summons requiring the person to whom it is directed to attend before the court and give evidence or produce any document or thing specified in the summons, may be issued out of that court or out of the High Court…

‘3. (1) Any person who without just excuse disoberys a witness order or witness summons requiring him to attend before any court shall be guilty of contempt of that court and may be punished summarily by that court as if his contempt had been committed in the face of the court…

‘4. (1) If a judge of the High Court is satisfied by evidence on oath that a witness in respect of whom a witness order or witness summons is in force is unlikely to comply with the order or summons, the judge may issue a warrant to arrest the witness and bring him before the court before which he is required to attend:

‘Provided that a warrant shall not be issued under this subsection in the case of a witness subject to a conditional witness order unless notice has been given requiring him to attend the trial, nor in the case of a witness subject to a witness summons unless the judge is satisfied by such evidence as aforesaid that the witness is likely to be able to give material evidence or produce any document or think likely to be material evidence in the proceedings.

‘(2) Where a witness who is required to attend before a court of assize or quarter sessions by virtue of a witness order or a witness summons fails to attend in compliance with the order or summons, that court may — (a) in any case, cause to be served on him a notice requiring him to attend the court forthwith or at such time as may be specified in the notice; (b) if the court is satisfied that there are reasonable grounds for believing that he has failed to attend without just excuse, or if he has failed to comply with a notice under paragraph (a) above, issue a warrant to arrest him and bring him before the court.’
The facts have not yet been investigated. The reason for this is that a summons was taken out asking for an order that certain paragraphs of the plaintiff’s statement of claim should be struck out on the ground that they disclose no reasonable cause of action. The statement of claim was drafted by and was signed by the plaintiff himself. The summons asked that the action should be dismissed. The summons was taken out under the provisions of RSC Ord 18, r 19. No evidence was therefore admissible on the application. The sole question was whether on the assumption that the facts as alleged could be proved a reasonable cause of action was disclosed. We do not know whether the plaintiff is able to substantiate the allegations which he makes. The statement of claim as drafted by the plaintiff was as follows:

‘1. The Plaintiff is a general medical practitioner, living at 863 Finchley Road, London, N.W.11, carrying on medical practice mainly at 92 St. Stephens Gardens, London, W.2.

‘2. The Defendant is a solicitor of the Supreme Court and was employed by or on behalf of one Mr. T. Advani in connection with the defence of the said Mr. Advani in a criminal cause at the Central Criminal Court.

‘3. The said Mr. Advani, the Defendant’s client, had been registered as the Plaintiff’s patient under the National Health Services.

‘4.The Defendant, as the solicitor of the said Mr. Advani, issued a witness summons on or about 27th May 1968 requiring the Plaintiff to attend Mr. Advani’s trial as a witness.

‘5. The Defendant omitted to take necessary and sufficient steps to intimate the plaintiff about issue of the said witness summons; omitted to take necessary and sufficient steps to serve the witness sumoons on the Plaintiff; and thus failed to serve the witness summons altogether.

‘6. At the trial of Mr. Advani, on or about 12th June 1968, the defendant falsely alleged that he had taken proper steps to serve the said witness summons on the Plaintiff; accused the Plaintiff, maliciously and without reasonable or probable cause, of having wilfully evaded service of the witness summons; instructed Mr. Advani’s counsel to apply to the judge for the issue of a bench warrant for the arrest of the Plaintiff; and thus caused the judge to issue such a bench warrant.

‘7. In consequence of the said bench warrant, the Plaintiff was arrested, detained and produced in custody before the court.

‘8. The said judge, after having heard the evidence of both the Defendant and the Plaintiff on the question of non-attendance of the Plaintiff as a witness, decided to dismiss the charge of wilful evasion and discharged the Plaintiff.

‘9. The Defendant conducted himself negligently in respect of the Plaintiff in that, having omitted to take necessary and sufficient steps to intimate the Plaintiff about issue of the witness summons and to take necessary and sufficient steps to serve the witness summons on the Plaintiff, he the Defendant, being a solicitor failed to ascertain the reasons for the non-attendance of the Plaintiff as a witness; made unfounded allegations of wilful evasion against the Plaintiff; and thus improperly caused the arrest and detention of the Plaintiff.

’10. The Plaintiff has thereby been injured in his reputation and has suffered injuries in respect of his and his wife’s health.’
The paragraphs which it was sought to strike out were paras 5, 6, 9 and 10.

The master made no order save that certain words in para 6 be struck out. The defendant appealed to the learned judge in chambers.The learned judge dismissed the appeal and restored the words which had been struck out. By leave, the defendant appealed to the Court of Appeal n1. The appeal was allowed; the statement of claim was struck out and the action was dismissed. Leave to appeal was refused. The plaintiff petitioned for leave to appeal. Leave was given on condition that the pleadings should be amended so as to disclose an allegation of malicious arrest. Paragraphs 11 and 12 were thereafter added to the statement of claim. Those paragraphs are as follows:

n1 [1969] 3 All ER 1153, [1970] 1 QB 283

11. Further or in the alternative on the 12th June 1968 at the trial of Mr. Advani the Defendant maliciously and without reasonable or probable cause instructed Mr. Advani’s Counsel to apply to His Honour Judge McKinnon Q.C. for a warrant to arrest the Plaintiff. In support of the said application the Defencant falsely stated on oath that the Plaintiff was evading service of the said witness summons and caused and procured His Honour to issue a warrant for the arrest of the Plaintiff. On the 13th June 1968 at about 1 a.m. the Plaintiff was arrested under the said warrant and imprisoned until 10.30 a.m. on the said date at which hour he was brought in custody before His Honour who after hearing the Plaintiff’s evidence in the matter discharged the Plaintiff from such custody. The Plaintiff states that his arrest and imprisonment were procured by the Defendant maliciously and without reasonable or probable cause by wrongful abuse of the process of court.

’12. By reason of the premises the Plaintiff has suffered in body and mind and has been put to expense and inconvenience and has suffered loss and damages.’
The judgments in the Court of Appeal n2 were based on the ground that the arrest of the plaintiff was caused by the evidence which the defendant gave in court and that as a witness may not be sued for what he says in the witness box it followed that the action was not maintainable; if a civil action may not be brought in respect of what a witness says on oath in court neither, it was held, should an action lie in respect of instructions to apply for an arrest.

n2 [1969] 3 All ER 1153, [1970] 1 QB 283

With every respect I consider that this reasoning fails to give due regard to the nature of an action for malicious arrest. What the plaintiff alleges is that the defendant acting both maliciously and without reasonable cause procured and brought about his arrest. The plaintiff is not suing the defendant on or in respect of the evidence which the defendant gave in court. The plaintiff is suing the defendant because he alleges that the defendant procured his arrest by means of judicial process which the defendant instituted both maliciously and without reasonable cause. The fact that in order to procure the arrest someone (who might or might not be the defendant himself) would have to give evidence on oath (see s 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965) does not have the result that an action, if otherwise sustainable, could not be brought. The gist of the complaint, where malicious arrest is asserted, is not that some evidence is given (although if evidence is given falsely it may be contended that malice is indicated) but that an arrest has been secured as a result of some malicious proceeding for which there was no reasonable cause.

It is well settled that no action will lie against a witness for words spoken in giving evidence in a court even if the evidence is falsely and maliciously given (see Dawkins v Lord Rokeby n3 and Watson v M’Ewan n4). If a witness gives false evidence he may be prosecuted if the crime of perjury has been committed but a civil action for damages in respect of the worlds spoken will not lie (see the judgment of Lord Goddard CJ in Hargreaves v Bretherton n5). Nor is this rule to be circumvented by alleging a conspiracy between witnesses to make false statements (see Marrinan v Vibart n6).

n3 (1873) LR 8 QB 255

n4 [1905] AC 480, [1904-07] All ER Rep 1

n5 [1958] 3 All ER 122, [1959] 1 QB 45

n6 [1962] 1 All ER 869, [1963] 1 QB 234

This, however, does not involve that an action which is not brought in respect of evidence given in court but is brought in respect of an alleged abuse of process of court must be defeated if one step in the course of the abuse of the process of the court involved or necessitated the giving of evidence. It must often happen that a defendant who is sued for damages for malicious prosecution will have given evidence in the criminal prosecution of which the plaintiff complains. The essence of the complaint in such a case is that criminal proceedings have been instituted not only without reasonable and probable cause but also maliciously. So also in actions based on alleged abuses of the process of the court it will often have happened that the court will have been induced to act by reason of some false evidence given by someone. In such cases the actions are not brought on or in respeect of any evidence given but in respect of malicious abuse of process (see Elsee v Smith n7).

n7 (1822) 2 Chit 304

In Daniels v Fielding n8, a plaintiff succeeded in an action for malicious arrest. In the Exchequer Chamber Rolfe B said n9:

n8 (1846) 16 M & W 200

n9 (1846) 16 M & W at 207

‘The action is in its character similar to an action for a malicious prosecution on a criminal charge, and the declaration ought therefore, in analogy to the course of pleading in such actions, to state what the false charge or statement was by which the judge has been misled.’
The fact that the false statement had been in an affidavit did not in any way debar the plaintiff from succeeding in his claim. In Ross v Norman n10, the declaration alleged that the defendant maliciously and without any reasonable or probable cause of action caused the plaintiff to be arrested. The arrest was brought about by procuring an order for a capias from a judge as the result of a false affidavit. Certain points were unsuccessfully argued on demurrer. One of the points raised in support of the demurrer was that the declaration had not shown that the affidavit was wilfully false within the defendant’s knowledge, but there was no suggestion that the action would not lie because the defendant was protected in respectof what he has sworn.

n10 (1850) 5 Exch 359

That the curts have distinguished between actions brought in respect of malicious process and those brought in respect of evidence given in proceedings was illustrated by Revis v Smith n11. The Court of Chancery ordered the sale of a testator’s real estate and the plaintiff, an auctioneer, was proposed to the court as a fit and proper person to be appointed by the court to sell the property. The defendant swore and filed an affidavit which seriously reflected on the plaintiff and which contained many defamatory statements. As a result the court did not appoint the plaintiff. He sued the defendant for damages. It was held that the action did not lie. In the Judgments a distinction was drawn between the claim them made and cases in which the process of the courlts had been abused maliciously and without reasonable or probable cause. Jervis CJ held that no action for defamation would lie against the defendant.

n11 (1856) 18 CB 126

In Melia v Neate n12 there was a claim for damages for having maliciously and without reasonable or probable cause procured an order of a judge for the arrest of the plaintiff for an alleged debt. The action was brought against three persons: one was a builder, another was his attorney and the other was the attorney’s clerk. A contract for the erection of a curch had been entered into between the plaintiff and the builder. The builder claimed that a sum for extras was due; the architect told the builder that no sum was due. The attorney on behalf of the builder then issued a writ against the plaintiff claiming that a sum was due; the writ was served by the clerk. There followed an application to a judge in chambers to arrest the plaintiff on the ground that he was about to leave England. The application was supported by an affidavit jointly made by the builder and the clerk. As a result the plaintiff was arrested. In the action which he later brought it was said that there was no justification for certain statements in the affidavit. These were fully considered and examined. The jury were directed that to sustain the action it was necessary to prove that the defendants had caused the arrest maliciously and without reasonable and probable cause. There was no suggestion that any immunity from liability could result from the fact that the arrest had been the result of the affidavit.

n12 (1863) 3 F & F 757

In Johnson v Emerson n13, a claim was brought against two persons for damages for falsely, maliciously, and without reasonable and probable cause procuring the plaintiff to be adjudicated bankrupt. It succeeded against one of them who appealed. In reference to him Cleasby B in the Court of Exchequer said n14:

n13 (1871) LR 6 Exch 329

n14 (1871) LR 6 Exch at 333

‘It was hardly contested that the part taken by the defendant was such, that if he acted without reasonable and probable cause and was actuated by malice he would be responsible in this action, though he acted only as attorney.’
There had been answers given by the jury which showed that the defendant had acted personally in carrying on the proceedings and had acted of his own accord apart from the instructions of his client as to the steps taken. An affidavit in support of the petition for adjudication had been necessary. It had been prepared by the defendant and sworn to by a creditor. It was said to contain false suggestions and statements. All the facts relating to it were examined. One matter that was considered was therefore whether the adjudication was obtained on an affidavit which was untrue. Cleasby B in his judgment said n15:

n15 (1871) LR 6 Exch at 344

‘I apprehend that, if three things concur, the person prosecuting the proceedings is liable to an action. First, if the proceeding be really without foundation; and this must be evidenced by the proceedings having finally terminated in favour of the plaintiff, whether the proceedings be in bankruptcy or by indictment (see Whitworth v. Hall n16, where it is said that actions for malicious prosecutions, malicious arrests, and taking bankruptcy proceedings, stand upon the same foundation). Secondly, the proceeding must have been taken without reasonable and probable cause. And thirdly, lest persons should be deterred, by fear of the consequences, from enforcing the law with despatch upon bona fide suspicion, before a man can be made responsible it must be shewn that, in taking the proceeding, he was actuated by malice or by some bad motive.’

n16 (1831) 2 B & Ad 695 at 698, [1824-34] All ER Rep at 484
A point was taken in the present case that in paras 6 and 11 of the statement of claim are the words ‘at the trial’. It was contended that the defendant gave evidence on matters relevant to the defenceof Mr Advani and that the defendant was therefore entitled to the immunity from action to which a witness is entitled. This, however, raises questions which can only be determined when the facts are ascertained. The only issue now arising is whether the claim of the plaintiff must at this stage be dismissed. Different considerations would apply if the claim was one for damages in respect of evidence given by a witness. The present claim is not such a claim. The gist and essence of the claim is that process was instituted as a result of which the court was induced to order the arrest of the plaintiff. It is alleged that this was done maliciously and without reasonable cause and that the giving of evidence was merely a step in bringing about the alleged abuse of process.

In my view the learned judge came to the correct conclusion in refusing to dismiss the action.

I would allow the appeal.

JUDGMENTBY-3: VISCOUNT DILHORNE.

JUDGMENT-3:
VISCOUNT DILHORNE. My Lords, I have had the advantage of reading the speech of my noble and learned friend Lord Morris of Borth-y-Gest and for the reasons he has given I too would allow the appeal.

JUDGMENTBY-4: LORD WILBERFORCE.

JUDGMENT-4:
LORD WILBERFORCE. My Lords, I have had the benefit of reading in advance the opinion prepared by my noble and learned friend Lord Morris of Borth-y-Gest. That opinion demonstrates that a man cannot be debarred from bringing an action for unlawful arrest by reason only of the fact that a step in procuring the arrest consisted of evidence given in court in the course of another person’s trial. I agree with this proposition but wish to add that I would disagree with the striking out of this action on another broader ground. Even if one concentrates attention on the evidence given by the defendant in the Central Criminal Court, I can see no reason of public policy for basing immunity from civil action on this circumstance. The reasons why immunity is traditionally (and for this purpose I accept the tradition) conferred on 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 truth of their evidence would be tried over again. Moreover, the trial process contains in itself, in the subjection to cross-examination and confrontation with other evidence, some safeguard against careless, malicious or untruthful evidence.

But none of this applies as regards such evidence as was given in support of the application for a bench warrant. It was given ex parte; the plaintiff had no means, and no other party any interest, in challenging it; so far from the public interest requiring that it be given absolute protection, that interest requires that it should have been given carefully, responsibly and impartially. To deny a person whose liberty has been interfered with any opportunity of showing that it was ill-founded and malicious, does not in the least correspond with, and is a far more serious denial than, the traditional denial of the right to attack a witness to an issue which has been tested and passed upon after a trial. Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest. So checked, the present case provides no justification for protecting absolutely whalt the solicitor siad in the court. I need not add that I am not prejudging in any way whether what he said was well-founded or lacking in malice. That is for the action to decide.

JUDGMENTBY-5: LORD DIPLOCK.

JUDGMENT-5:
LORD DIPLOCK. My Lords, I have read the speech of my noble and learned friend Lord Morris of Borth-y-Gest and agree with it in the order that he proposes.

DISPOSITION:
Appeal allowed.

SOLICITORS:
Francis & Solomons (for the plaintiff); Jas H Fellowes & Son (for the defendant).

Practice – Discovery – Use of documents – Documents prepared by prosecution in course of investigation disclosed to accused in criminal proceedings – Documents shown to plaintiff by accused’s solicitor – Plaintiff bringing libel action based on documents – Whether abuse of process – Whether implied undertaking not to use documents for purposes other than defence in criminal trial – Whether absolute immunity from suit: TAYLOR and Another Appellants V DIRECTOR OF THE SERIOUS FRAUD OFFICE and Others (United Kingdom)

[1999] 2 AC 177

TAYLOR and Another

Appellants

and

DIRECTOR OF THE SERIOUS FRAUD OFFICE and Others

Respondents
[HOUSE OF LORDS]
[1999] 2 AC 177
HEARING-DATES: 23, June 22 July 1997, 6, 7, July 29 October 1998
29 October 1998
CATCHWORDS:
Practice – Discovery – Use of documents – Documents prepared by prosecution in course of investigation disclosed to accused in criminal proceedings – Documents shown to plaintiff by accused’s solicitor – Plaintiff bringing libel action based on documents – Whether abuse of process – Whether implied undertaking not to use documents for purposes other than defence in criminal trial – Whether absolute immunity from suit

HEADNOTE:
The first defendant was investigating the activities of D. and F. in connection with a fraud where moneys obtained from the victim had passed through the hands of the first plaintiff, a solicitor practising in the Isle of Man, or the second plaintiff, a company controlled by him. The second defendant, an employee of the S.F.O., wrote a letter to the Attorney-General of the Isle of Man, requesting assistance in the investigation and setting out the facts as they appeared to the S.F.O., which suggested that the first plaintiff had been a party to the fraud. The second defendant also spoke to the fourth defendant, an employee of the third defendant, the Law Society, and made a file note which recorded their views that the first plaintiff was a co-conspirator and should be struck off as a solicitor. The plaintiffs were not charged with any offence. When criminal proceedings were begun against D. and F., the first defendant disclosed to their solicitors the unused material which had come into existence during the investigation, including the letter and the file note. The first plaintiff was shown the unused material when he was asked by F.’s solicitors to give evidence for F. The plaintiffs began an action for defamation against the defendants based on the contents of the letter and the file note. The judge granted the defendants’ application to strike out the action as an abuse of process, holding that the disclosure to F.’s solicitors had been subject to an implied undertaking that the documents would not be used for any purpose other than F.’s defence. The Court of Appeal held that there was no such implied undertaking but dismissed the plaintiffs’ appeal on the ground that the documents were immune from suit because they were brought into existence for the purposes of a criminal investigation.

On the plaintiffs’ appeal:-

Held, dismissing the appeal, (1) that in order to ensure that the privacy and confidentiality of those who made, and those who were mentioned in, statements contained in unused material which had come into existence as a result of a criminal investigation were not invaded more than was absolutely necessary for the purposes of justice, compliance by the prosecution with itsobligation to disclose all such material to the defence generated an implied undertaking not to use the material for any purpose other than the conduct of the defence; and that, accordingly, the documents disclosed to F.’s solicitors could not be used for the purposes of the action for defamation (post, pp. 203C-D, 204G-H, 210E-H, 211A-F, 212D-E, 220C-D).

Mahon v. Rahn [1998] Q.B. 424, C.A. disapproved.

(2) (Per Lord Goff of Chieveley, Lord Hoffmann, Lord Hope of Craighead and Lord Hutton) that the absolute immunity from suit which applied to judges, advocates and 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; and that, accordingly, the statements made in the letter and the file note were subject to absolute immunity from suit in respect of an action for defamation (post, pp. 204G-H, 214D-215B, 219D-F, 220C-D, 221B-G, 222B).

Dictum of Drake J. in Evans v. London Hospital Medical College (University of London) [1981] 1 W.L.R. 184, 192 approved.

Decision of the Court of Appeal [1997] 4 All E.R. 887 affirmed.

INTRODUCTION:
Appeal from Sir Michael Davies sitting as a judge of the Queen’s Bench Division.

By a writ endorsed with a statement of claim issued on 24 March 1996 as subsequently amended the plaintiffs, Thomas Denton Taylor and Monarch Assurance Plc., of which he was managing director, brought an action for defamation against the defendants, the Serious Fraud Office, Katherine McKenzie, the Law Society and Neil Rogerson. By summonses dated 1 May 1996 and 29 May 1996 the first and second defendants, and the third and fourth defendants respectively sought orders that the writ and statement of claim be struck out pursuant to R.S.C., Ord. 18, r. 19 or under the inherent jurisdiction of the court. On 26 July 1996 Sir Michael Davies made the orders sought.

By a notice of appeal dated 20 August 1996 the plaintiffs appealed with leave, on the grounds, inter alia, that the judge had (1) erred in law in holding that the prosecution in the criminal proceedings against D. and F. were under a duty to disclose to them the documents on which the plaintiffs based their action; (2) erred in law in holding that an implied undertaking not to use documents disclosed by one party to another for purposes collateral to the proceedings in which they were disclosed arose by operation of law in criminal proceedings; (3) erred in law in holding that the implied undertaking was binding as against the plaintiffs, who were not defendants to the criminal proceedings and to whom the documents were properly disclosed by F.; and (4) wrongly exercised his discretion in striking out the plaintiffs’ statement of claim.

The facts are stated in the judgment of Kennedy L.J.

The plaintiffs appealed by leave of the House of Lords (Lord Goff of Chieveley, Lord Hoffmann and Lord Saville) granted on 29 January 1998.

COUNSEL:
Leolin Price Q.C. and Julian Knowles for the plaintiffs. Mahon v. Rahn [1998] Q.B. 424 was determinative as to whether the documents were “used” or “unused” since criteria in Young v. Bristol Aeroplane Co. Ltd. [1946] A.C. 163 were not applicable.

If there was an undertaking not to use documents disclosed in the criminal proceedings for any collateral or ulterior purpose that undertaking was not binding on the plaintiffs, who obtained the documents properlyfrom F.’s solicitors. However, the disclosure by F. to the first plaintiff was not in breach of such an undertaking because F. made the disclosure for the purposes of his criminal proceedings. There was no reason of public policy to prevent the first plaintiff from seeking by action protection of his reputation. Documents obtained from public bodies in criminal proceedings, if not covered by public interest immunity, do not fall within the scope of an undertaking given by third parties.

The court should decline to rule on absolute privilege and qualified privilege because they were not pleaded by the defendants as defences.

Andrew Caldecott Q.C. and Catrin Evans for the defendants. Mahon v. Rahn is not decisive on the issue whether unused material is subject to an implied undertaking. [Reference was made to Gold v. Essex County Council [1942] 2 K.B. 293; Morelle Ltd. v. Wakeling [1955] 2 Q.B. 379; Davis v. Johnson [1979] A.C. 264; Johnson v. Agnew [1978] Ch. 176 and Young v. Bristol Aeroplane Co. Ltd. [1946] A.C. 163.]

Prior to the Criminal Procedure and Investigations Act 1996, pre-trial disclosure in criminal proceedings was governed by Practice Note (Criminal Evidence: Unused Material) [1982] 1 All E.R. 734 and Reg. v. Keane [1994] 1 W.L.R. 746. Generally, material disclosed pursuant to an obligation to disclose for a particular purpose should only be used for that purpose: see British Coal Corporation v. Dennis Rye Ltd. (No. 2) [1988] 1 W.L.R. 1113 and Marcel v. Commissioner of Police of the Metropolis [1992] Ch. 225. There are policy reasons why a person should be able to speak freely when giving proofs of evidence, reporting to the Director of Public Prosecutions or otherwise making statements with a view to a criminal prosecution: see Watson v. M’Ewan [1905] A.C. 480; Marrinan v. Vibart [1963] 1 Q.B. 528; Evans v. London Hospital Medical College (University of London) [1981] 1 W.L.R. 184 and X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633. There is a presumption against any collateral use of such material. The concept of an implied undertaking is a convenient mechanism: see Prudential Assurance Co. Ltd. v. Fountain Page Ltd. [1991] 1 W.L.R. 756. [Reference was also made to Ex parte Coventry Newspapers Ltd. [1993] Q.B. 278.] If policy imposes an implied undertaking, it is absurd if third parties receiving the material with notice of the undertaking are free to ignore it: see Distillers Co. (Biochemicals) Ltd. v. Times Newspapers Ltd. [1975] Q.B. 613. [Reference was also made to Munster v. Lamb (1883) 11 Q.B.D. 588 and Lincoln v. Daniels [1962] 1 Q.B. 237.] Striking out the action as an abuse of process in the circumstances was a proper exercise of the judge’s discretion: see Miller v. Scorey [1996] 1 W.L.R. 1122.

In any event, the action should be struck out, under R.S.C., Ord. 18, r. 19, on the ground that the relevant publications were immune from suit because they were protected by absolute privilege: see Silcott v. Commissioner of Police of the Metropolis (1996) 8 Admin.L.R. 633

Price Q.C. replied.

Cur. adv. vult.

22 July. The following judgments were handed down.

Leolin Price Q.C. and Julian Knowles for the plaintiffs. The rival public interests involved in the case are the public interest in granting absolute privilege and immunity from defamation proceedings in respect of communications made in the course of a criminal investigation and the public interest in not denying justice in respect of damage to reputation.

The defence of absolute privilege should be strictly confined. It is for the defendant to allege and prove all the facts necessary to bring the words complained of within that defence. [Reference was made to Trapp v. Mackie [1979] 1 W.L.R. 377; Mann v. O’Neill (1997) 71 A.L.J.R. 903; Roy v. Prior [1971] A.C. 470; Bennett v. Commissioner of Police of the Metropolis (1997) 10 Admin.L.R. 245 and Ex parte Coventry Newspapers Ltd. [1993] Q.B. 278.] In defamation proceedings there is no defence of absolute immunity distinct from absolute privilege, which extends to everything said or done in the course of preparing for a potential prosecution. Absolute immunity is simply the name given to absolute privilege in actions other than defamation actions: Marrinan v. Vibart [1963] 1 Q.B. 528, 535.

Absolute privilege attaches to the character or identity of the person writing or speaking the defamatory matter: see Munster v. Lamb (1883) 11 Q.B.D. 588. The defence of qualified privilege attaches more to the occasion on which the words were spoken. A claimed immunity arising from things done in the course of criminal investigations therefore has the character of a qualified rather than absolute privilege. The immunity that covers proceedings in a court of justice should not be extended to matters outside those proceedings except where such immunity is necessary for the protection of those participating in the proceedings: see Marrinan v. Vibart [1963] 1 Q.B. 528; Watson v. M’Ewan [1905] A.C. 480; Silcott v. Commissioner of Police of the Metropolis (1996) 8 Admin.L.R. 633; Evans v. London Hospital Medical College (University of London) [1981] 1 W.L.R. 184 and X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633. The Court of Appeal erred in holding that absolute immunity extended to what could fairly be said to be part of the process of investigating a crime or possible crime with a view to prosecution.

Considerations of public policy do not require all those involved in criminal investigations to be given immunity from suit. The two public policy reasons underpinning absolute privilege are the need to encourage witnesses to assist the course of justice without fear of exposing themselves to litigation, and the need to avoid relitigation by subsequent collateral challenges. Those policy concerns are sufficiently addressed by the absolute privilege accorded to witnesses and potential witnesses and the doctrine of public interest immunity. It is absurd to suggest that police officers and court officials will be inhibited in the prosecution of crime unless they have immunity from suit. The right of a plaintiff to go to court to protect his reputation must be given its due weight. [Reference was made to D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171; Docker v. Chief Constable of West Midlands Police, The Times, 29 April 1998; Court of Appeal (Civil Division) Transcript No. 472 of 1998; Hill v. Chief Constable of West Yorkshire [1989] A.C. 53; Dooley v. C. N. Weber Ltd. (1994) 118 D.L.R. (4th) 750; Canada v. Lukasik (1985) 18 D.L.R. (4th) 245 and Practice Note (Criminal Evidence: Unused Material) [1982] 1 All E.R. 734.]

There is no implied undertaking as to use attaching to documents disclosed in criminal proceedings. A person receiving documents is free to use them as he wishes unless there is some principle which prevents him from doing so. Under English law that which is not expressly prohibited is lawful. If a person is defamed he ought not to be prevented from seekingredress in the courts, save where that would clearly not be in the public interest.

Unlike a litigant in civil proceedings, the Crown has an interest in the information contained in a document but not in the document. Those who sign witness statements fully expect to give evidence in public and the police cannot know at that stage whether that evidence will be used at the trial. Notions of confidence do not apply to information supplied for use in the criminal justice process. Where there is a genuine public interest in information being kept confidential public interest immunity will apply. [Reference was made to Home Office v. Harman [1983] 1 A.C. 280.]

Mahon v. Rhan [1998] Q.B. 424 was correctly decided. At common law there is no implied undertaking as to the use of documents disclosed by the Crown in the course of criminal proceedings, whether as part of its case or as unused material.

Andrew Caldecott Q.C. and Catrin Evans for the defendants. The restrictions on the application of immunity to actual or potential witnesses and evidence in court, as proposed by the plaintiffs, are impractical. Those restrictions have to be judged at the time when the relevant communication is made since the whole purpose of immunity is that at that point the person concerned knows he can speak freely without fear of proceedings being brought against him. Defamatory statements are a necessary part of any police investigation and a prospective witness’s account will often include a mixture of his own observations and hearsay.

The prosecution’s obligation to disclose unused material is not confined to material which is admissible in evidence but extends to material which may set in train a line of inquiry and which is not prima facie admissible in court. [Reference was made to Reg. v. Brown (Winston) [1994] 1 W.L.R. 1599; Reg. v. Keane [1994] 1 W.L.R. 746 and Reg. v. Ward (Judith) [1993] 1 W.L.R. 619.]

Statements made in the course of an investigation into a possible crime are immune from suit on grounds of public policy developed from the absolute immunity afforded to witnesses in court proceedings. The public interest in protecting the free flow of information to and from those investigating crime outweighs the need for private remedies for those damaged in the course of criminal investigations. Qualified privilege affords insufficient protection for persons wishing to assist in the investigation of crime [Reference was made to Munster v. Lamb, 11 Q.B.D. 588.]

For the purposes of the law of defamation there is no meaningful distinction between absolute privilege and absolute immunity. The former is but an application of the latter in defamation proceedings.

Investigators are obliged by law to use information and documents obtained or generated by them only for the purposes of the investigation. Collateral use without the leave of the court of such information is contrary to the public interest in that such use tends to deter the free flow of information to, and free communication between, investigators. [Reference was made to Marcel v. Commissioner of Police of the Metropolis [1992] Ch. 225.]

An implied undertaking or obligation to the court is a convenient mechanism protecting the administration of justice against the harmful consequences of collateral use, while allowing persons to apply to the courtfor release from the obligation or undertaking where the particular use is in the public interest. In contrast, private law remedies afford wholly inadequate protection. [Reference was made to Connelly v. Director of Public Prosecutions [1964] A.C. 1254.] The person harmed may know of the prosecution or the identity of the person responsible for the improper use. There is no legal aid for defamation and there is uncertainty as to the effectiveness of financial remedies in breach of confidence in such a context. An obligation or undertaking is effective against third parties to whom such information is disclosed since collateral use by them would be an interference with the administration of justice and, prima facie, a contempt of court.

Mahon v. Rahn [1998] Q.B. 424 should be overruled, save in so far as it indicates that material communicated to the public in open court is not protected.

Price Q.C. relied.

Their Lordships took time for consideration.

29 October.

PANEL: Kennedy and Millett L.JJ. and Sir Brian Neil Lord Lloyd of Berwick, Lord Goff of Chieveley, Lord Hoffmann, Lord Hope of Craighead and Lord Hutton

JUDGMENTBY-1: Kennedy L.J

JUDGMENT-1:
Kennedy L.J: This is the plaintiffs’ appeal from a decision of Sir Michael Davies, sitting as a judge of the Queen’s Bench Division, who on27 June 1996 ordered that the plaintiffs’ action be struck out against all four defendants.

Facts

For the purposes of this appeal the facts can be briefly stated. In 1994 the Serious Fraud Office (“S.F.O.”) was investigating the activities of Charles Deacon, James Fuller and John Patrick Savage, who were alleged to have committed a serious and complex fraud. The investigations resulted in January 1996 in Deacon and Fuller being convicted of conspiracy to defraud, by which time Savage had died. But on 4 May 1994, during the course of the investigations, Katherine McKenzie, an investigating lawyer employed by the S.F.O., wrote to seek the assistance of the Attorney-General for the Isle of Man in relation to the investigation. It had apparently emerged that Mr. Taylor, a solicitor in the Isle of Man, (and in England) had, on behalf of clients, invested money with Deacon and Savage, and the letter proposed that Mr. Taylor be interviewed, and that Ms McKenzie and Detective Constable Walker of Staffordshire Police be given authority to undertake their inquiries in the Isle of Man.

On 17 May 1994, as part of the investigation, Ms McKenzie and Detective Inspector Hulse of Staffordshire Police went to the Solicitors Complaints Bureau at Leamington Spa to see Neil Rogerson, a Law Society employee, who explained how the compensation fund worked and its application to the instant fraud inquiry. A file note was made. By that date the criminal proceedings against Deacon and Fuller had already been transferred to the Crown Court and on 24 October 1994 the S.F.O. disclosed to the defendant’s solicitors in the criminal case “unused material” which included the letter of 4 May 1994 and the file note of 17 May 1994.

In May 1995 Mr. Taylor was asked by counsel representing Fuller if he would be prepared to assist, and a meeting was arranged. To enable him to prepare for that meeting he was shown amongst other documents the letter of 4 May 1994 and the file note of 17 May 1994 and he was, he says, concerned because in those documents he was being portrayed by Ms McKenzie as a conspirator.

The defamation action

By a specially endorsed writ issued on 24 March 1996 Mr. Taylor and Monarch Assurance Plc., of which he is managing director, commenced this action against the Director of the S.F.O., Ms McKenzie, the Law Society and Neil Rogerson. The plaintiffs were subsequently given leave to amend the writ and all subsequent proceedings to show the S.F.O. as the title of the first defendant, and nothing now turns on that. The statement of claim sets out in full the letter of 4 May 1994, and asserts that the words used, in their natural and ordinary meaning, were defamatory of the plaintiffs. In paragraph four of the statement of claim the word defendant is persistently used in place of the word plaintiff, but the meaning is clear. Similar allegations are made in relation to the meeting of 17 May 1994, based on the file note, although here again the misdescription of the parties makes it difficult to disentangle what precisely is being alleged. Inparagraph 11 of the statement of claim criticism is made of disclosure of the file note to Fuller’s legal advisers.

On 1 May 1996 the Treasury Solicitor, acting for the first and second defendants, took out a summons which sought an order that the writ and statement of claim be struck out pursuant to R.S.C., Ord. 18, r. 19 or under the inherent jurisdiction of the court, on the grounds that: “(a) as against the first defendant they disclosed no reasonable cause of action and/or are embarrassing: (b) as against each of the first and second defendants they are scandalous and/or an abuse of the process of the court.”

On 29 May 1996 solicitors acting for the third and fourth defendants also took out a summons seeking an order that the action against those defendants be struck out pursuant to Ord. 18, r. 19 or under the inherent jurisdiction of the court. Thus the matter came before Sir Michael Davies on 26 July 1996, when he made the order to which I have already referred.

The decision under appeal

As the judge pointed out:

“All the causes of action derived from the letter, the file note, and any oral statements which led to them and the plaintiffs only acquired access to them because they were disclosed as unused material by the crown to Fuller’s legal advisers. These were documents which were prima facie confidential and private, and this, I think, may be important, neither of the documents nor the oral conversations were read out or referred to at the criminal trial.”

The judge found:

“(1) that it was the duty of the prosecution to disclose the two documents without formal order; (2) that in civil proceedings there is an implied undertaking that documents disclosed on discovery must not be used for any purpose other than the purposes of the case in which they are disclosed [in this court it has been common ground that such an undertaking extends to a third party who sees documents as a result of discovery and knows that they have been available in that way – as the first plaintiff saw them in the present case]; (3) that it is not in the interests of the public that there should be opened up the possibility of countless defamation cases arising from situations like those in the present case; (4) that when shown the documents the first plaintiff was subject to an implied undertaking to the court, which was entitled to control the documents, and that it was a breach of that undertaking for him to use them for the purposes of this action; (5) that if such documents are to be used for any purpose other than that for which they are disclosed an application should be made to the Crown Court to release the undertaking.”

In arriving at his conclusion the judge referred to various authorities including, in particular, the decision at first instance of Brooke J. in Mahon v. Rahn (unreported), 19 June 1996. That decision was reversed by another division of the Court of Appeal [1998] Q.B. 424, and Mr. Leolin Price, who has appeared for the plaintiffs before us, contends that because of theway in which Mahon’s case was decided by this court we must now allow this appeal. Before I turn to consider what was decided by this Court in Mahon v. Rahn, and the extent to which this court is bound by that decision, it is in my judgment appropriate to consider how Mr. Caldecott, for the defendants, puts his case in relation to the main issue, namely whether, in the absence of recent binding authority, this court should say that these plaintiffs were entitled to start proceedings on the basis of documents disclosed to the first plaintiff in the way that I have described.

Why maintain confidentiality?

Unfortunately no prosecuting authority was a party to Mahon’s case, so this court did not have the advantage of the submissions which we have heard.

As Mr. Caldecott pointed out, although it can be valuable to see what, if anything, is done in civil litigation to restrict collateral use of documents disclosed on discovery, the approach if carried too far can lead to error, because if the reasons for restriction which apply in relation to civil litigation are not present in the criminal field it does not necessarily follow that in relation to criminal litigation there should be no restrictions. There may be, and he submits that there are, quite separate and powerful reasons for imposing and maintaining restrictions in the criminal field. The first and most obvious of those reasons is the need to sustain and encourage the free flow of information from informants both to initiate and to achieve progress with criminal inquiries. By informants I do not mean only those who operate close to criminals and give information for reward. I mean anyone in a position to give useful information, such as a neighbour who may have made a potentially significant observation, or an employer who may have suspected an employee of dishonesty. If informants are to be encouraged to be forthcoming and frank it is obviously essential for them to know that so far as possible the information which they give will remain confidential. In order to ensure that no injustice is done to a defendant in a criminal trial the information may have to be made available to that defendant, or to those acting for him, for the purposes of conducting his defence in that case, but the needs of justice require no wider disclosure. So long as the information does not actually become public as a result of it being used at a criminal trial it seems to me that, save in highly exceptional cases, no significant damage can be done to anyone’s reputation as a result of the very limited disclosure to which I have just referred, and so the common good clearly requires that the documents disclosed should go no further. Otherwise not only will there be a real danger of informants being stifled by the threat, if not the reality, of civil litigation, but there will also be a risk of their being ostracised or subjected to violence and intimidation from those sympathetic to the criminal’s cause. To say that informants have nothing to fear because a prosecutor can always seek a special order to safeguard particularly sensitive information and that if the action against them should happen to take the form of a claim for damages for defamation they can, if not malicious, sustain a defence of qualified privilege or even absolute privilege is, in my judgment, a wholly inadequate response. No one, least of all a bona fide potential informer, wishes to be dependent upon the prosecutor’sview of what is sensitive, or to be sued (especially if the cause of action is one for which legal aid is not available), and if he can avoid those risks by withholding information he will do so.

A second compelling reason in favour of maintaining confidentiality as far as possible is that the material gathered in during the course of a criminal investigation and properly disclosed on discovery will often affect others who may never even have given a statement to anyone, and who may not even be aware of the disclosure. For example, disclosed material may show that someone other than the defendant was originally suspected of the crime, or a letter properly written in confidence by A to B may exist which is disparaging to C. Long after the letter was written a prosecution of B may lead to the disclosure of that letter as unused material. If C obtains access to it and sues A it is, in my judgment, plain that justice is not being done if A is simply left to avail himself if he can of such defence as he can raise to an action in defamation. Similarly, if it is not C who obtains access to the letter but a newspaper, which refuses to reveal its source, C’s reputation may be seriously damaged before he can do anything to stop it. It may be information affecting his private life, it may even affect vulnerable children.

A third reason for maintaining confidentiality, demonstrated by the facts of this case, is the need to enable those investigating crime to operate freely, to follow leads, to consider suspects, and to record their thoughts without the fear of parasitic litigation.

I have therefore no hesitation in concluding that the interests of justice are best served if material which is disclosed to a defendant by the prosecution as part of the criminal process is subject to the restriction that it can only be used for the purposes of conducting the defence in those proceedings, at least until it enters the public domain by being referred to in open court. I accept, as will become apparent, that at present, even since the implementation of the Criminal Procedure and Investigations Act 1996, the restriction is not precisely as I have suggested that it should be, but it is Mr. Caldecott’s submission that long prior to the Act the law had demonstrated in many fields, including in particular in the field of defamation, a policy against allowing, without the leave of the court, collateral use of information which it required to be disclosed for the purposes of particular proceedings where such information had not been referred to in open court. Mr. Caldecott submits that it was because it was not alerted to the existence of that well established policy that this court in Mahon’s case fell into error.

Relevant authorities

It is said that only limited assistance can be gained from cases concerning the alleged misuse of material disclosed in criminal proceedings because there are few such cases. No doubt that is because extensive disclosure by the prosecution of material other than that relied on in open court is a recent development: see Practice Note (Criminal Evidence: Unused Material) [1982] 1 All E.R. 734, Reg. v. Ward [1993] 1 W.L.R. 619, and Reg. v. Keane [1994] 1 W.L.R. 746. Bearing that in mind Mr. Caldecott submits that the policy of the law can be seen in many cases in other fields of law to which we were referred. Those cases show, he submits, arecognition that private law remedies, such as seeking an injunction, or raising a defence of privilege, are inadequate. As I have already indicated the injured party may not know of the collateral publication until serious damage has been done. He may not know who to proceed against because he may not know how the information became public, he may not have the necessary means, his opponent may be impecunious, or if he takes proceedings in defamation he may be met by a defence of justification, in which event no interlocutory injunction will normally be granted.

Mr. Caldecott submits, and I accept, that by granting the defence of absolute privilege to every advocate and every witness in a trial in respect of what is said in court, and in respect of fair and accurate reports thereof, the courts have long recognised the need to protect the trial process from extraneous influences, and, he submits, that privilege, which arises from public policy, is more widely available than was recognised by this court in Mahon v. Rahn [1998] Q.B. 424. In Munster v. Lamb (1883) 11 Q.B.D. 588 the defendant to the action in defamation was a solicitor who had used the words complained of when conducting a defence at petty sessions. The Court of Appeal held that he was entitled to the protection of absolute privilege and explained why. Brett M.R. said, at p. 604:

“To my mind it is illogical to argue that the protection of privilege ought not to exist for a counsel, who deliberately and maliciously slanders another person. The reason of the rule is, that a counsel, who is not malicious and who is acting bona fide, may not be in danger of having actions brought against him. If the rule of law were otherwise, the most innocent of counsel might be unrighteously harassed with suits, and therefore it is better to make the rule of law so large that an innocent counsel shall never be troubled, although by making it so large counsel are included who have been guilty of malice and misconduct.”

In other words qualified privilege was not a sufficient safeguard because of the dangers of being “harassed with suits,” one of Mr. Caldecott’s arguments in the present case. Fry L.J. made the same point, at p. 607:

“The rule of law exists, not because the conduct of those parties ought not of itself to be actionable, but because if their conduct was actionable, actions would be brought against judges and witnesses in cases in which they have not spoken with malice, in which they have not spoken with falsehood. It is not a desire to prevent actions from being brought in cases where they ought to be maintained that has led to the adoption of the present rule of law; but it is the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely discharging their duty.”

In Watson v. M’Ewan [1905] A.C. 480 the House of Lords held that the privilege which protects the witness from an action in slander in respect of his evidence in the witness box also protects him against the consequences of statements made to the client and his solicitor when preparing the case for trial. The Earl of Halsbury L.C. 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 anecessary 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.”

Mr. Caldecott invites us to note the thinking which is there articulated. In Lincoln v. Daniels [1962] 1 Q.B. 237 this court made it clear that the decision in Watson’s case [1905] A.C. 480 must not be read too widely, but Devlin L.J. reiterated the reasons for the rule of absolute privilege saying [1962] 1 Q.B. 237, 256:

“The rule of absolute privilege, as has so often been pointed out, has not been devised so as to protect malicious persons but to ensure that judges and others engaged in the administration of justice should be free from the fear of proceedings and ‘the vexation of defending actions.'”

In Marrinan v. Vibart [1963] 1 Q.B. 528 the cause of action was conspiracy, the plaintiff alleging that two police constables had conspired to defame him in a report to the Director of Public Prosecutions, in evidence given at a trial, and in testimony to an inquiry ordered by the benchers of an Inn of Court. On a preliminary issue Salmon J. held that each publication was absolutely privileged, and that decision was upheld by this court. Sellers L.J. said, 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.”

Mr. Caldecott submits that there is an obvious parallel between that case and the position of the second and fourth defendants in the present case. Of course we are not concerned with the defence of absolute privilege – no defence has yet been served. The problem is that even if such a defence is available it does not prevent proceedings being started, and if there is any doubt as to the availability of the defence of absolute privilege it will not be considered as a preliminary issue: see Richards v. Naum [1967] 1 Q.B. 620.

The present case also raises the question of the extent to which confidentiality or privilege attaches to material disclosed so as to restrain someone other than the defendant. In Distillers Co. (Biochemicals) Ltd. v. Times Newspapers Ltd. [1975] Q.B. 613, in the context of civil litigation, that problem was addressed. An expert who was advising some claimants in their action against Distillers was given access to material disclosed by the defendants in that action. He agreed to sell the material to a newspaper, and refused to return it after the claimants’ action had been settled. The court ordered that it be returned, Talbot J. saying, at p. 621:

“Those who disclose documents on discovery are entitled to the protection of the court against any use of the documents otherwise than in the action in which they are disclosed. I also consider that this protection can be extended to prevent the use of the documents by any person into whose hands they come unless it be directlyconnected with the action in which they are produced. I am further of the opinion that it is a matter of importance to the public, and therefore of public interest, that documents disclosed on discovery should not be permitted to be put to improper use and the court should give its protection in the right case.”

Mr. Caldecott of course submits that the same line of reasoning should be adopted in relation to material disclosed to the defence as unused material in the course of a criminal prosecution.

In Evans v. London Hospital Medical College (University of London) [1981] 1 W.L.R. 184 the plaintiff had been arrested and charged with the murder of her five-month-old son by morphine poisoning, on the basis of post mortem investigation results provided by the defendants. Further investigations led to no evidence being offered, and she was acquitted. She then commenced civil proceedings against the defendants alleging negligence, thus illustrating, as Mr. Caldecott has pointed out, that a person who starts civil proceedings on the basis of material disclosed during the course of a criminal prosecution will not always seek damages for defamation. He or she may select a different cause of action. The defendants successfully moved to set aside the statement of claim on the basis that they were at all times acting in the course of preparing evidence for a possible criminal prosecution, and for that reason were immune from any civil proceedings arising from their acts. Drake J. reviewed the line of authority to which I have already referred, and, having referred to a test used by the House of Lords in Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198, said [1981] 1 W.L.R. 184, 192:

“I would alter it to apply it to the immunity attaching to a witness or possible witness in a criminal investigation, thus: 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.”

If that is right then it would appear to have direct application to the facts of the present case. The importance of the decision in Evans’s case is twofold – (1) the immunity from suit is not the same as absolute privilege because the cause of action was one for which absolute privilege would not have afforded any defence; (2) the immunity did not arise out of the way in which the plaintiff obtained the information which enabled her to sue. It arose out of the nature of the activity being undertaken by the defendants at the time of the acts complained of.

In Mahon v. Rahn [1998] Q.B. 424 Otton L.J. did refer briefly at the end of his judgment to Evans’s case and to two other decisions namely Hasselblad (G.B.) Ltd. v. Orbinson Ltd. [1985] Q.B. 475 and X v. Bedfordshire County Council [1995] 2 A.C. 633, saying that it was “at least arguable” that the respondents in Mahon’s case [1998] Q.B. 424 could raise the defence of absolute immunity. But it had not been pleaded or argued, either in the Court of Appeal or in the court below, so Otton L.J. considered that it would not be appropriate to maintain the first instance decision on that ground. That, is not our position. We have had the benefit of argument, in particular at an adjourned hearing, in relation to thatdefence and the relevant cases have been cited to us. The decision in the Hasselblad case [1985] Q.B. 475 is sufficiently far away from the facts of the present case for me not to need to pause to consider it, but X v. Bedfordshire County Council [1995] 2 A.C. 633 is a decision to which I will later refer.

The Criminal Justice Act 1987 established the S.F.O. and gave to the director certain investigative powers, but only for the purposes of an investigation (see section 2(1)), and the Act in section 3(5) sets out the purposes for which information obtained may be used. In Morris v. Director of the Serious Fraud Office [1993] Ch. 372 the court considered a liquidator’s application under section 236 of the Insolvency Act 1986 for an order that the S.F.O. produce certain documents in its possession, and Sir Donald Nicholls V.-C. said, at p. 380:

“I can see no justification for implying a general power for the S.F.O. to disclose information, obtained in the exercise of compulsory powers conferred by the Act, to persons not named in section 3. . . . When information is obtained in exercise of those powers the S.F.O. may use the information for those purposes and purposes reasonably incidental thereto and such other purposes as may be authorised by statute, but not otherwise.”

Mr. Caldecott submits first that the Act of 1987 gives some useful indication how Parliament expects confidence to be respected so far as practicable when documents are brought to light during the course of criminal investigations, and, secondly, that it would be curious, to say the least, if a responsible investigating authority such as the S.F.O. were unable to make or permit collateral use of any documents revealed in the course of an investigation, but if criminal proceedings were commenced and those documents were then disclosed to the defendant, he and those to whom he revealed the documents would be free to use the documents as they chose.

In Prudential Assurance Co. Ltd. v. Fountain Page Ltd. [1991] 1 W.L.R. 756 Hobhouse J. considered the extent to which a party to whom documents had been disclosed during exchanges before trial of a civil action could make use of those documents after the action had been settled. Having reviewed some of the authorities he said, at p. 764h, that an undertaking to the court not to use material supplied in the course of discovery, or allow it to be used, for any purpose other than the proper conduct of the instant action will be implied. The judge continued, at p. 765:

“The rational basis for the rule is that where one party compels another, either by the enforcement of a rule of court or a specific order of the court, to disclose documents or information whether that other wishes to or not, the party obtaining the disclosure is given this power because the invasion of the other party’s rights has to give way to the need to do justice between those parties in the pending litigation between them: it follows from this that the results of such compulsion should likewise be limited to the purpose for which the order was made, namely, the purposes for that litigation then before the court between those parties and not for any other litigation or matter or any collateral purpose.”

Obviously it involves some straining of language to apply that reasoning to disclosure by the prosecution in the course of criminal proceedings. There is no relevant rule of the court, and normally the prosecution does not disclose because the defence obtains an order. Prior to the implementation of the Criminal Procedure and Investigations Act 1996 disclosure was made because, in the light of the authorities, that was known to be what was required, and if the court did make an order it could not be said to invade the prosecutor’s rights.

In Marcel v. Commissioner of Police of the Metropolis [1992] Ch. 225 the court had to consider how to deal with documents which came into the hands of the prosecution during the course of a criminal investigation. The solicitor for the defendant in a civil action was allowed to inspect and copy some documents seized by the police from those who were to be witnesses in that action. A subpoena duces tecum was then taken out requiring the police to produce the documents at court, but a witness from whom documents had been seized asked the court to order, inter alia, that the copies of the documents be returned to the police and that the subpoena be set aside. At first instance Sir Nicholas Browne-Wilkinson V.-C. held that section 22 of the Police and Criminal Evidence Act 1984 does not expressly state the only purposes for which documents seized can be used, and he continued, at pp. 234c, 235c:

“However, there manifestly must be some limitation on the purposes for which seized documents can be used. Search and seizure under statutory powers constitute fundamental infringements of the individual’s immunity from interference by the state with his property and privacy fundamental human rights. Where there is a public interest which requires some impairment of those rights, Parliament legislates to permit such impairment. But, in the absence of clear words, in my judgment Parliament cannot be assumed to have legislated so as to interfere with the basic rights of the individual to a greater extent than is necessary to secure the protection of that public interest . . . In my judgment, subject to any express statutory provision in other Acts, the police are authorised to seize, retain and use documents only for public purposes related to the investigation and prosecution of crime and the return of stolen property to the true owner. Those investigations and prosecutions will normally be by the police themselves and involve no communication of documents or information to others. However, if communication to others is necessary for the purpose of the police investigation and prosecution, it is authorised.”

Those passages, in so far as they relate to voluntary disclosure by the police, were expressly approved by Dillon L.J. in this court. The Court of Appeal declined to set aside the subpoena, but stressed also the need to recognise the private law rights of the owner of the documents seized. Nolan L.J. said, at p. 261b:

“In the context of the seizure and retention of documents, I would hold that the public law duty is combined with a private law duty of confidentiality towards the owner of the documents. The private law duty . . . arises from the relationship between the parties. It mattersnot, to my mind, that in this instance, so far as the owners of the documents are concerned, the confidence is unwillingly imparted.”

Sir Christopher Slade said, at pp. 262d, 263f:

“In my judgment, documents seized by a public authority from a private citizen in exercise of a statutory power can properly be used only for those purposes for which the relevant legislation contemplated they mig ht be used. The user for any other purpose of documents seized in exercise of a draconian power of this nature, without the consent of the person from whom they were seized, would be an improper exercise of the power. Any such person would be entitled to expect that the authority would treat the documents and their contents as confidential, save to the extent that it might use them for purposes contemplated by the relevant legislation. . . . I agree with the Vice-Chancellor that these documents and information were disclosed in breach of confidence.”

So I come to Ex parte Coventry Newspapers Ltd. [1993] Q.B. 278, a decision of the Court of Appeal (Criminal Division) on unusual facts. B. was convicted of unlawful wounding. The evidence against him included that of two police officers who were alleged to have behaved improperly. A complaint was made about their conduct which was investigated by the Police Complaints Authority (“P.C.A.”). A newspaper then published an article which was said to be defamatory of the two officers, and they took civil proceedings against the newspaper. At that stage the conviction of B. was referred to the Court of Appeal (Criminal Division) by the Home Secretary, and for the purposes of that hearing the court ordered disclosure to B. of all witness statements and documents in the possession of the P.C.A. The appeal succeeded, and the newspaper then asked the Court of Appeal (Criminal Division) to release B. from his implied undertaking pursuant to which discovery of the P.C.A. documents to him was given. It was, said Lord Taylor of Gosforth C.J., at p. 285f: “an implied undertaking, analogous to that arising on discovery in civil proceedings, not to use the disclosed documents otherwise than for the purposes for which discovery was given, here the pursuance of the criminal appeal.”

It was accepted, both by experienced counsel and by the court, that an implied undertaking had been given to the Court of Appeal (Criminal Division) which alone had power to vary it, but it was significantly different from such an undertaking arising as a result of discovery in civil proceedings. Counsel for the P.C.A. argued against any variation of the undertaking, and the court said, at p. 291e that his argument “would, we accept, be formidable indeed had the implied undertaking with which we are concerned been one given in the usual way in civil proceedings.” The court went on to recognise that in civil proceedings the concept of the implied undertaking is a necessary way of underpinning the integrity of the discovery process, but whereas in private litigation discovery is “a very serious invasion of the privacy and confidentiality of the litigant’s affairs” (per Lord Keith of Kinkel in Home Office v. Harman [1983] 1 A.C. 280, 308) that is less obviously apt in relation to an order made by the Court of Appeal (Criminal Division). The court held that the implied undertaking added little to the public interest immunity attaching to the P.C.A.documents, and that both should yield to the countervailing public interest which required that the newspaper be able to mount a proper defence.

In X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633 one of the actions considered by the House of Lords was M (A Minor) v. Newham London Borough Council in which an infant and her mother claimed damages for negligence and breach of statutory duty against the local authority and others. It was said that a psychiatrist and a social worker employed by the local authority had erred in diagnosing sex-abuse and in concluding that the child’s mother’s cohabitee was the abuser. The master granted an application to strike out the claim as disclosing no cause of action on the basis that the psychiatric injury complained of could not found a claim for damages in negligence, and that the psychiatrist was protected from suit by a witness’s immunity from actions in negligence. The Court of Appeal disagreed, but in the House of Lords Lord Browne-Wilkinson, with whom the other members of the House agreed, said, at p. 754g, that the Court of Appeal “placed too narrow a limit on the principle of witness immunity.” He referred to the decision of the House of Lords in Watson v. M’Ewan [1905] A.C. 405, to which I have already referred, and [1995] 2 A.C. 633, 755 cited this passage from the decision of Drake J. in Evans v. London Hospital Medical College (University of London) [1981] 1 W.L.R. 184, 191:

“The immunity given to a witness or potential witness is because the administration of justice would be greatly impeded if witnesses were to be in fear that . . . persons against whom they gave evidence might subsequently involve them in costly litigation: see per Salmon J. in Marrinan v. Vibart [1963] 1 Q.B. 234, 237. 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 the possible action or prosecution is being considered. In a large number of criminal cases the police have collected statements from witnesses before anyone is charged with an offence; indeed sometimes before it is known whether or not any criminal offence has been committed. If immunity did not extend to such statements it would mean that the immunity attaching 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.”

Lord Browne-Wilkinson then continued [1995] 2 A.C. 633, 755:

“My Lords, I find the reasoning of Drake J. compelling at least in relation to the investigation and preparation of evidence in criminal proceedings. In my judgment exactly similar considerations apply where, in the performance of a public duty, the local authority is investigating whether or not there is evidence on which to bring proceedings for the protection of the child from abuse, such abusefrequently being a criminal offence. I express no view as to the position in relation to ordinary civil proceedings.”

In my judgment the last sentence quoted by Lord Browne-Wilkinson from the decision of Drake J. plainly applies to the letter and to the file note which are at the heart of this case, and to the discussion which the file note was intended to summarise. It is also important to note that it was precisely because it was potentially a criminal and not a civil investigation that the witness was granted immunity in the Newham case.

In In re Arrows Ltd. (No. 4) [1995] 2 A.C. 75 the liquidators of a company applied to a judge for directions, having received a request from the S.F.O. for transcripts of the examination of the chairman and managing director under section 236 of the Insolvency Act 1986. The judge ordered that the transcripts be released on certain undertakings being given, but the Court of Appeal released the S.F.O. from undertakings, and the appeal to the House of Lords was dismissed. The case is really concerned with the extent of the powers of the S.F.O., and although cited to us in my judgment it is not really of assistance in the present case.

In Silcott v. Commissioner of Police of the Metropolis (1996) 8 Admin.L.R. 633, this court considered a plaintiff’s appeal against an order that his action for conspiracy to pervert administration of justice and misfeasance in public office be struck out. The third cause of action for malicious prosecution was not affected by the order. The factual basis of the case was that, according to the plaintiff, two police officers had conspired together to produce false notes of interview which indicated that the plaintiff was the murderer of Police Constable Blakelock, with the result that he was wrongly convicted of that offence. The issue on appeal was identified by Simon Brown L.J. as being: “whether the alleged actions of the police officers are protected from any civil action for conspiracy to pervert the course of justice or misfeasance in a public office by reason of a cloak of absolute immunity conferred as a matter of public policy.”

Simon Brown L.J. set out the immunity rule which protects parties and witnesses from any action arising out of anything said or done in the ordinary course of any proceedings in a court of justice. He referred to Munster v. Lamb, 11 Q.B.D. 588, Marrinan v. Vibart [1963] 1 Q.B. 234 and Evans v. London Hospital Medical College (University of London) [1981] 1 W.L.R. 184 as indicating the width of the rule and its limitations, and he said that “protection must extend to the preparation of evidence equally as to its presentation.” He said:

“In my judgment, Drake J. was correct in Evans’s case 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.”

That answer, as it seems to me, must be the same if the cause of action happens to be in defamation.

Conclusions from authorities

In my judgment five propositions can be extracted from that rather lengthy examination of authorities.

(1) Whatever the form of action it will be barred if it is founded upon what a witness has said in the witness box, or upon what has been said or done in preparing the evidence for a trial: see Watson v. M’Ewan [1905] A.C. 405; Marrinan v. Vibart [1963] 1 Q.B. 234.

(2) This immunity is not, like absolute privilege, limited to actions alleging defamation. In criminal cases it applies to prevent any form of parasitic litigation (other than an action like malicious prosecution which relates directly to criminal proceedings) where the statement or conduct relied upon 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: see Marrinan’s case, Evans v. London Hospital Medical College (University of London) [1981] 1 W.L.R. 184, X v. Bedfordshire County Council [1995] 2 A.C. 633 and Silcott’s case (1996) 8 Admin.L.R. 633,

(3) Documents seized by the police or other prosecuting authority during a criminal investigation must be treated as confidential. The owners of the documents are entitled to expect that they will only be used for the specific purpose for which they have been seized (i.e. to further the criminal investigation) and the courts will if necessary act to support that expectation: see Marcel’s case [1992] Ch. 225.

(4) In civil proceedings a party who obtains discovery is required in return to give an implied undertaking to the court not to use material supplied in the course of discovery or allow it to be used for any purpose other than the proper conduct of the action in which discovery is obtained. That is to encourage full discovery, and to ensure that the invasion of the rights of the party giving discovery is restricted to what is necessary to do justice in the instant case: Prudential Assurance Co. Ltd. v. Fountain Page Ltd. [1991] 1 W.L.R. 756.

(5) When the prosecution discloses material to the defence in the course of a criminal prosecution, whether it be used material or unused material, the authorities prior to Mahon v. Rahn [1998] Q.B. 224 are silent as to whether that gives rise to an implied undertaking of the kind to which I have just referred. Some such undertaking may well be implied if the Court of Appeal (Criminal Division) orders specific disclosure of documents normally protected by public interest immunity (see Ex parte Coventry Newspapers Ltd. [1993] Q.B. 278) but the reasons for the undertaking will not be the same as in relation to a civil action.

Those propositions are not quite the policy for which Mr. Caldecott contended, but unless there is anything in the Criminal Procedure and Investigations Act 1996 or Mahon’s case which compels me to take a different view I regard the first and second propositions as determinative of this appeal.

Criminal Procedure and Investigations Act 1996

Part I of the Act creates for the first time a statutory scheme for prosecution and defence disclosure in criminal proceedings. As part of that scheme section 17 makes provision for protecting unused material that isdisclosed by a prosecutor to an accused or to his or her legal adviser. It has to be treated as confidential, and cannot be used, except with the permission of the court other than for the purposes of the criminal proceedings to which it relates. As we discovered during the course of argument, it is by no means easy to see how Part I of the Act will apply to persons in the position of the plaintiffs in the present case, but fortunately that is not something we have to decide, because the material parts of the Act did not come into force until April 1997, and so they have no direct application to this case. We were really invited to consider the Act because it was thought it might assist us as to the state of the law before it came into force. I confess that I have not been able to find any such assistance in the Act. Much of the procedure which it lays down is new, and section 17(8) provides:

“Nothing in this section affects any other restriction or prohibition on the use or disclosure of an object or information, whether the restriction or prohibition arises under an enactment (whenever passed) or otherwise.”

Mahon v. Rahn [1998] Q.B. 424

I return now to the case which Mr. Price has submitted that we must follow in deciding this appeal. The plaintiffs were London stockbrokers, and the defendants were partners in a Swiss bank. The defendants instructed the plaintiffs to purchase certain shares for $5m., but provided only $3m. They were pressed for the balance before the S.F.O. and the Securities Association (“S.A.”) began to investigate the plaintiffs. As part of that investigation the defendants were approached, and they wrote a letter to the S.A. Criminal proceedings were commenced, and the letter was read out in court. The criminal proceedings were dismissed and the plaintiffs claimed damages for libel on the basis of the letter. The defence served a defence in which they claimed qualified (but not absolute) privilege. They then issued a summons to strike out on the grounds that the letter had been obtained by the plaintiffs by way of disclosure in criminal proceedings against them. Brooke J. held that when the prosecution discloses material in criminal proceedings that gives rise to an implied undertaking by a defendant similar to that which arises in civil proceedings. The undertaking is to be implied whether the disclosure is voluntary or pursuant of an order of the court. It continues to apply even if the document is read or referred to in court and if a libel action is commenced in breach of the undertaking the court may strike it out. On appeal Otton L.J. examined the scope of the implied undertaking as it exists in civil proceedings, and concluded, at p. 447, that “in the absence of a public interest immunity ruling to the contrary there never has been a fetter on the subsequent use of documents which have been “used” in the criminal process.” He was not satisfied that it was appropriate to imply an undertaking in criminal proceedings by analogy with the implied undertaking which exists in civil procedure and found that to be decisive of the appeal, but then added the postscript to which I have already referred, but which it is now appropriate to quote verbatim. He said, at p. 453, that on the basis of the decisions in the Hasselblad case [1985] Q.B.475, Evans’s case [1981] 1 W.L.R. 184 and X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633:

“it would appear at least arguable that the respondents in this case could raise the defence of absolute immunity. However, this has not been pleaded, nor was the point argued below or before this court. Thus it would not be appropriate for this court to maintain Brooke J.’s decision to strike out on this ground.”

As I hope I have made clear, it is the plea of absolute immunity which I regard as being entitled to succeed in the present case. It follows that the judgment of Otton L.J. in Mahon’s case is in no way decisive because it does not address the issue. Schiemann L.J. simply agreed, and Staughton L.J., at p. 456, emphasised that in that case the court was dealing with a document which was disclosed to the plaintiffs “because it formed part of the material which the prosecution wished to put before the court.” That, of course, is not the position in this case. He did not consider that the defendant in a criminal trial is under any implied undertaking as to material “disclosed to him as part of the prosecution case whether or not it is read out or referred to in open court:” p. 457. So Mr. Caldecott submitted to us that Staughton L.J. having made no finding in relation to unused material, and Schiemann L.J. not having made it clear with whom he agreed, we are free to decide that an implied undertaking does arise in relation to unused material. That is not a decision which I have to make in order to reach a conclusion in relation to this appeal. More significant from my point of view, is what Staughton L.J. said at the end of his judgment, at pp. 458-459:

“Otton L.J. in his penultimate paragraph has referred to cases which elucidate the privilege that is available to witnesses. We heard no argument on that topic, but clearly it may be relevant if this action proceeds further. I agree that we should not rule upon it at the present stage. It is not pleaded, the full facts may not be known, and we would have to recall the parties for further argument. It must be considered, if at all, on some other occasion.”

Contrary to the submissions made by Mr. Price I do not regard the decision in Mahon’s case as being determinative of this appeal, which I would dismiss.

Does Mahon v. Rahn apply to unused material?

Were it not for the decision in Mahon v. Rahn I would have had a second reason for dismissing this appeal, namely that Sir Michael Davies was right for the reasons which he gave. It seems to me that:

(1) Where the needs of criminal justice involve, as they do, invasions of privacy and confidentiality – as, for example, by the seizure of documents during the course of an inquiry, and the disclosure of documents to the court and to the defence (both used and unused material) – the extent of the invasion should be no greater than the needs of criminal justice in the instant case require. That is necessary not only to encourage and protect informants and investigators, but also because those whose privacy and confidentiality have been invaded have a right to expect the law to protectthem from any unnecessary exposure. (2) It follows that save in two exceptional cases the court should be prepared to act so as to ensure that documents created or collected during the course of a criminal inquiry are used only for the purposes of that inquiry, and of any prosecution which arises out of it. (3) The first exceptional case is where a document is used in a criminal court in such a way that the contents of the document become public knowledge. It then becomes no longer practicable for the court to protect the privacy or confidentiality so far as that document is concerned. (4) The second exceptional case is where the court is persuaded that the overall interests of justice require that the document or documents in question be available for use in other proceedings (e.g. where someone released soon after being charged seeks damages for wrongful arrest and false imprisonment, or a problem arises of the kind considered in Ex parte Coventry Newspapers Ltd. [1993] Q.B. 278). (5) In circumstances where there is no protection to be derived from the immunity which in my judgment applies in this case the reasons for restricting the use of documents which come to light in the course of criminal investigations and criminal trials are therefore different from those which underpin the well-established implied undertaking which arises on discovery in civil proceedings, but they are no less powerful, and it can be persuasively argued that they should lead to the same result, namely confirmation of the existence of an implied undertaking in all cases other than those where the document has come fully into the public domain during the criminal trial. (6) However this court in Mahon’s case [1998] Q.B. 424 decided not to follow that route so far as used material was concerned. The way in which the matter was dealt with by Otton and Staughton L.JJ. (even allowing for the latter’s more restricted approach) seems to me to leave no room for a meaningful distinction to be drawn between used material and unused material, nor would such a distinction constitute an adequate response to the reasoning in favour of an implied undertaking which I have attempted to summarise. Although, as I have said, the court in Mahon’s case did not have the benefit of submissions from a prosecuting authority I cannot accept Mr. Caldecott’s submission that an established policy was overlooked, and even if I could accept it I am not persuaded that this court could decline to follow Mahon v. Rahn on that ground.

In conformity with the decision in Mahon’s case I must therefore accept that in this court Sir Michael Davies’s finding as to the existence of and breach of an implied undertaking cannot now be sustained, but for the reasons I have given that, in my judgment, has no effect on the outcome of the appeal.

JUDGMENTBY-2: Millett L.J

JUDGMENT-2:
Millett L.J: I would be very concerned if private and confidential material, such as bank statements, medical records and tax returns, belonging to private individuals and seized by the police or provided to them voluntarily and in confidence, and which was then served on an accused as part of the prosecution case or supplied to him by the prosecution as unused material in order to assist him with his defence, but which was not then used or referred to in open court, could be used by the accused for his own purposes free from restriction. In my opinion this would be contrary to basic legal policy derived from principles whichI regard as fundamental in a free society. In my view: (1) The seizure or compulsory disclosure of material is an interference with the owner’s privacy. The invasion of his privacy can only be justified by the public interest in ensuring that all relevant material should be available to a court of justice and that an accused person should have made available to him all material which may assist him to meet the case against him. It follows that the use to which the material may lawfully be put should be limited by the purpose for which its compulsory production is justified. (2) Persons who voluntarily supply material in confidence are entitled to have their confidence respected save only in so far as they must be taken to have consented to the use of the material. Members of the public who volunteer information to the police are entitled to expect that it will be used only for the purpose of the investigation and subsequent criminal proceedings. Their expectations should be respected. (3) Nothing should be done to discourage members of the public from voluntarily assisting the police or prosecuting authorities. This applies with particular force to informers, but it is not confined to them. The risk that material which they provide will come into the public domain by being used or referred to in open court may discourage co-operation but is unavoidable. But there would be a further and unnecessary disincentive to co-operation if material of only peripheral relevance to the proceedings but disclosed by the prosecution to the accused in conformity with its duty should thereafter be freely available for use for any purpose. (4) A person who is supplied with material for a limited purpose is not entitled without the consent of the person who supplied it to use it for any other purpose.

To a large extent these principles are given effect by the doctrines of public interest immunity and immunity from suit. But these doctrines do not give complete protection. The prosecution may not claim public interest immunity, and even if it does its claim may be refused. Immunity from suit does not extend to pre-existing documents, that is to say documents which are not brought into existence in the course of the criminal investigation, and does not prevent the use of material otherwise than for the purpose of civil proceedings.

In my view, those who volunteer information to and those whose documents are seized by the police are entitled to protection from improper use of their material. So, too, are those who are responsible for creating documents in the course of a criminal investigation. If, therefore the matter were res integra, I would agree with Kennedy L.J. that the accused ought to be subjected to a legal obligation similar to that which arises under the implied undertaking in civil proceedings in relation to documents obtained on discovery. We are, however, bound by the recent decision of this court in Mahon v. Rahn [1998] Q.B. 424 to hold that material supplied to the accused as part of the prosecution case is not subject to any restriction on its subsequent use, even though it has not become public knowledge, and even though it may have been seized under compulsory powers or obtained in confidence.

I have not found the reasoning in that case persuasive. In the first place, I cannot accept the proposition that persons who take part in the administration of justice are sufficiently protected by qualified privilege. This would be contrary to a long line of authority. It is the policy of thelaw to protect such persons against baseless allegations of malice, and this requires nothing less than absolute immunity from suit. In the second place, a very narrow view was taken of the scope of privacy, and no regard appears to have been paid to the fact that it is the privacy of the individual witness or investigator, not the prosecution, which is invaded when his material is supplied to the accused. Thirdly, in my view no support can be derived from the terms of section 17 of the Criminal Procedure and Investigations Act 1996. The section is limited to unused material, but the reason for this is self-evident: other material was beyond the scope of the Act. It is not possible to deduce what Parliament considered to be the position in relation to material served on the accused as part of the prosecution case. It is possible though unlikely that Parliament thought that such material should be at the free disposition of the accused. But it is at least possible that Parliament assumed that the existing law prevented this.

The position in relation to unused material was expressly left open in Mahon’s case. I agree with Kennedy L.J., however, that it is not open to us to distinguish the case on that ground. To do so would be to introduce an indefensible distinction between used and unused material. It would mean that a member of the public whose information undermined the prosecution case would be protected, whereas one whose information advanced it would not. Such a policy would have no rational basis.

Accordingly, I reluctantly agree that it was not open to the judge to strike out the proceedings on the ground that they were brought in breach of an implied undertaking to the court. But I am also relieved to find that the proceedings should be struck out on the ground that they infringe the defendants’ immunity from suit and that to continue them would be an abuse of the process of the court.

I agree that the appeal should be dismissed.

JUDGMENTBY-3: Sir Brian Neill

JUDGMENT-3:
Sir Brian Neill: In these proceedings for defamation the plaintiffs rely on: (a) a letter dated 4 May 1994 from Ms McKenzie of the S.F.O. to the Attorney-General for the Isle of Man; (b) a discussion which took place on 17 May 1994 in Leamington Spa at a meeting attended by Ms McKenzie, Detective Inspector Hulse of the Staffordshire Police and Mr. Rogerson of the Law Society; (c) a file note dated 17 May 1994 in which Ms McKenzie made a record of the discussion referred to in (b).

The claims in respect of (a) and (c) are for damages for libel. The claims in respect of (b) are for damages for slander.

In the course of the hearing in this court Mr. Caldecott advanced two arguments as to why these claims should be struck out: (1) because the documents and the terms of the discussion on 17 May only came to the knowledge of the plaintiffs by reason of the fact that the letter and the file note had been disclosed by the prosecution in accordance with the modern practice in criminal proceedings to a defendant in such proceedings for the purpose of the preparation by him of his defence; (2) because the documents came into existence and the discussion took place in the course of and for the purpose of a criminal investigation.

These two arguments raise quite separate considerations. Thus the first argument, if correct, would mean that the documents which were disclosedby the prosecution to the defence in criminal proceedings could not be used as the basis of a subsequent civil action irrespective of the circumstances in which the documents first came into existence.

If the matter were free from authority I would be disposed, for the reasons explained by Kennedy and Millett L.JJ., to uphold this argument. The law of confidence recognises that there are circumstances in which the protection of the court can be invoked to prevent the use of documents for purposes other than those for which they first came into the possession of a defendant. The limited use that can be made of “without prejudice” documents provides a similar example. It seems to me that on grounds of public policy the court should be able to intervene to prevent the misuse of what are in effect its own processes. But I have come to the conclusion that there is no satisfactory way in which the recent decision of this court in Mahon v. Rahn [1998] Q.B. 424 can be distinguished. Accordingly, had the first argument been the only material available to Mr. Caldecott, I would have felt obliged to allow the appeal.

On the facts of the present case, however, I am satisfied that neither the documents nor the words used in the course of the discussion of 17 May 1994 can found an action for defamation at the suit of the plaintiffs. The documents came into existence and the discussion took place in the context of the investigation of suspected crime. Public policy requires, for the reasons explained by Kennedy L.J., that such documents and such discussions should be immune from suit. In this context I say nothing of course about the exceptional remedies of malicious prosecution and malicious arrest.

A decision on this second ground does not meet the concerns voiced by Mr. Caldecott. In my judgment, however, in the light of the decision in Mahon’s case this is the only ground on which this appeal can be dismissed. I therefore concur in the order proposed by Kennedy L.J.

JUDGMENTBY-4: Lord Lloyd of Berwick

JUDGMENT-4:
Lord Lloyd of Berwick: . I would decide this appeal on the first of the two principles discussed by my noble and learned friend, Lord Hoffmann. This was the ground on which Sir Michael Davies decided the case, correctly in my view. He was following the closely reasoned judgment of Brooke J. in Mahon v. Rhan (unreported), 19 June 1996. Unfortunately Brooke J.’s judgment was reversed on appeal [1998] Q.B. 424. This provided Mr Leolin Price with the ammunition which he needed.

The Court of Appeal [1997] 4 All E.R. 887 in the present case held that it was bound by its previous decision in Mahon v. Rahn. So they could not decide against the plaintiff on the preferred ground of an implied undertaking. Instead they turned with relief (see per Millett L.J., ante, p. 199d) to an alternative ground not argued before them. They held that the absolute immunity which attaches to witnesses and potential witnesses should be extended to all those taking part in a criminal investigation with a view to a prosecution or possible prosecution. Since the point was not argued, it may be that if it had not been for Mahon v. Rahn it would never have been decided.

Whereas the implied undertaking is a clear cut and relatively straightforward point, the absolute immunity raises issues of far reaching importance on which I would for my part have wished to hear fuller argument. In Watson v. M’Ewan [1905] A.C. 480 the House extended the original absolute privilege attaching to a witness’s statement in court to his statements in preparation for court proceedings. This was a natural, necessary and indeed obvious extension of the principle. But I am not persuaded that it is obvious or necessary to extend the principle to those who are not witnesses or potential witnesses at all, but whose only function is to investigate and prosecute crime, such as the Serious Fraud Office, the Crown Prosecution Service and the police.

The new rules on disclosure of unused material, to which my noble and learned friend, Lord Hope, attaches importance, do not seem to me to justify the extension of absoluite privilege to a different class of beneficiary.Nor can I see any logical reason for doing so. Indeed logic would seem to point in the other direction. If the immunity is absolute, how is it to be reconciled with proceedings against the police for malicious prosecution? If there is to be an exception for malice, is this not more consistent with qualified privilege rather than absolute privilege? It is said that qualified privilege is insufficient protection for the reasons stated by Fry L.J. in Munster v. Lamb (1883) 11 Q.B.D. 588, 607. But the same could be said of every case in which the law allows qualified but not absolute privilege.

It is said that the absolute privilege or immunity will not apply unless what is said or done is “fairly part” of the investigation process. But the absolute privilege of the judge and advocate are not subject to that qualification. The privilege applies even though what is said is gratuitous and irrelevant to every issue in the trial: Munster v. Lamb. Does this mean that there is now to be an intermediate level of privilege lying somewhere between absolute privilege on the one hand and qualified privilege on the other?

Reliance was placed on a dictum of Drake J. in Evans v. London Hospital Medical College (University of London) [1981] 1 W.L.R. 184. But I do not see how that case helps. The third and fourth defendants in that case were clearly potential witnesses. This is how Drake J. approached the case, at pp. 191-192. This is how Lord Brown-Wilkinson understood the case in X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633, 755. In that case, too, the psychiatrist was clearly a potential witness. This is confirmed by Mr. Caldecott’s own treatment of the decision in paragraph 3.3 of his written case. The passage in Drake J.’s judgment, at p. 192, on which particular reliance is placed begins with the words “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 . . .” But this passage is prefaced by the words “I would alter [the test suggested in Rees v. Sinclair 1 N.Z.L.R. 180, 187] to apply it to the immunity attaching to a witness or possible witness in a criminal investigation.” There is nothing in these decisions which would extend absolute immunity to the Crown Prosecution Service, the Serious Fraud Office or the police.

The merit of deciding the case on the first ground is that it allows a degree of flexibility. It enables the court to keep control of the material in question. This was regarded by Brooke J. and Sir Michael Davies as a factor of importance. I agree with them. There will be little if any flexibility, and little if any control by the courts, if the police are to enjoy absolute immunity in the course of their investigations. Instead of investigating complaints by members of the public whose rights have been infringed, the courts will presumably be met in every case with an application to strike out. I am bound to say that I regard this development with some alarm. But, as your Lordships take a different view, I say no more about it.

On the first ground I am in complete agreement with the speech of my noble and learned friend, Lord Hoffmann. I would dismiss the appeal on that ground, but leave the second ground undecided.

JUDGMENTBY-5: Lord Goff of Chieveley

JUDGMENT-5:
Lord Goff of Chieveley: . My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hoffmann. For the reasons which he gives I would dismiss the appeal.

JUDGMENTBY-6: Lord Hoffmann

JUDGMENT-6:
Lord Hoffmann: My Lords,

1. The facts

In 1994 the Serious Fraud Office (“S.F.O.”) was investigating a fraud involving U.S.$8m. alleged to have been committed by James Fuller, John Savage and a London solicitor named Charles Deacon. The money which they obtained from the victim had passed through the hands of the first appellant, Mr. Taylor, who was a solicitor practising in the Isle of Man, or the second appellant, a company with which he was connected called Monarch Assurance Plc. By a letter dated 4 May 1994, Katherine McKenzie, a lawyer employed by the S.F.O., made a formal request to the Attorney-General of the Isle of Man, asking for his assistance in the investigation of the fraud. She requested the Attorney-General to exercise his powers under section 24 of the Criminal Justice Act 1990 (Isle of Man) by summoning Mr. Taylor for an interview about the transactions. This section, so far as material, provides:

“(1) The powers of the Attorney-General under this section shall be exercisable in any case in which it appears to him – (a) on reasonable grounds that there is a suspected offence involving serious or complex fraud, wherever committed; and (b) that there is good reason to do so for the purpose of investigating the affairs, or any aspect of the affairs, of any person. (2) The Attorney-General may by notice in writing require the person whose affairs are to be investigated (‘the person under investigation’) or any other person whom he has reason to believe has relevant information to attend before the Attorney-General at a specified time and place to answer questions or otherwise furnish information with respect to any matter relevant to the investigation . . . (10) The Attorney-General may authorise any person to exercise on his behalf all or any of the powers conferred by this section but no such authority shall be granted except for the purpose of investigating the affairs, or any aspect of the affairs, of a person specified in the authority.”

Ms McKenzie’s letter presented the facts as they appeared to the S.F.O. They depicted Mr. Taylor’s part in the transaction in such a way as to suggest that the S.F.O. suspected him to have been a party to the fraud. The letter concluded with a statement that by reason of the facts stated, the S.F.O. had reason to believe that the use of the powers contained in section 24 was justified and desirable. It invited the Attorney-General to authorise Ms McKenzie and a police officer to exercise those powers on his behalf by interviewing Mr. Taylor.

On 3 June 1994 the Attorney-General sent Mr. Taylor a formal notice requiring him to attend for an interview but owing to illness he was unable to do so. Meanwhile Ms McKenzie had been pursuing her inquiries and on 17 May 1994 she and a colleague called upon a Mr. Rogerson, who worked for the Law Society in the administration of the solicitors’ compensation fund, to talk about the transaction, which had given rise to a claim by the victim against the fund. She made a file note of the interview, recording among other things Mr. Rogerson’s view thatMr. Taylor should be struck off as a solicitor and her own contention that Mr. Taylor was a co-conspirator.

Mr. Fuller and Mr. Deacon were indicted on charges of conspiracy to defraud and eventually convicted. Mr. Savage was in the United States and died before an application for extradition had run its course. Mr. Taylor, despite the suspicions I have recorded, was not charged. Mr. Fuller’s solicitors asked him to give evidence on his behalf. Before meeting him to discuss the case, they gave him a file of documents which had been disclosed to them by the S.F.O. as unused material in accordance with the principles stated by the Court of Appeal (Criminal Division) in Reg. v. Ward (Judith) [1993] 1 W.L.R. 619, 679-681 and Reg. v. Keane [1994] 1 W.L.R. 746. It included a copy of the letter of 4 May 1994 to the Attorney-General of the Isle of Man and the file note of the meeting with Mr. Rogerson on 17 May 1994.

2. The litigation

Mr. Taylor commenced an action for libel. He alleged that the letter contained a libel published by the S.F.O. and Ms McKenzie to the Attorney-General and that the file note contained a libel published by the S.F.O. and Ms McKenzie to Mr. Rogerson as well as a libel published by Mr. Rogerson to Ms McKenzie. He also relied upon a publication by Ms McKenzie of both documents by their disclosure to Mr. Fuller’s solicitors.

All four defendants took out summonses to strike out the action as an abuse of process. On 26 July 1996 they were heard by Sir Michael Davies, sitting as a High Court judge. He struck out the action on the ground that the disclosure of the two documents to Mr. Fuller’s solicitors had been subject to an implied undertaking, similar to that which applies to documents produced on discovery in civil proceedings, that they would not be used for any purpose other than Mr. Fuller’s defence. It followed that they could not be used as the basis of a libel action by Mr. Taylor without the leave of the court.

Mr. Taylor appealed. Shortly before the appeal was heard in June 1997 by a Court of Appeal consisting of Kennedy and Millett L.JJ. and Sir Brian Neill, Mahon v. Rahn [1998] Q.B. 424 had been decided by a differently constituted Court of Appeal. The holding, according to the headnote, was that:

“material disclosed by the prosecution to a defendant in criminal proceedings, whether obtained by compulsion or voluntarily . . . was not subject to any implied undertaking, analogous to that which existed in relation to material discovered in civil proceedings . . .”

I shall examine this case in more detail later, but the Court of Appeal regarded it as a binding authority which obliged it to hold that the ground upon which Sir Michael Davies had struck out the action could not be sustained. But the court invited argument on whether the striking out could be affirmed for a different reason, namely that the documents were immune from suit because they were brought into existence for the purposes of a criminal investigation. The court accepted this alternative submission and dismissed the appeal. Mr. Taylor appeals to yourLordships’ House on the ground that the Court of Appeal extended the principle of immunity from suit beyond its proper sphere. The respondents, on the other hand, say that Mahon v. Rahn [1998] Q.B. 424 was wrongly decided and that the judgment ought also to be upheld on the ground upon which they succeeded before Sir Michael Davies.

3. The two principles

The two principles in debate are each well established and the question before your Lordships is the extent of their reach. The concept of an implied undertaking originated in the law of discovery in civil proceedings. A solicitor or litigant who receives documents by way of discovery is treated as if he had given an undertaking not to use them for any purpose other than the conduct of the litigation. As Hobhouse J. pointed out in Prudential Assurance Co. Ltd. v. Fountain Page Ltd. [1991] 1 W.L.R. 756, 764 the undertaking is in reality an obligation imposed by operation of law by virtue of the circumstances in which the document or information is obtained. The reasons for imposing such an obligation were explained by Lord Keith of Kinkel in Home Office v. Harman [1983] 1 A.C. 280, 308:

“Discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant’s affairs. It forms part of English legal procedure because the public interest in securing that justice is done between parties is considered to outweigh the private and public interest in the maintenance of confidentiality. But the process should not be allowed to place upon the litigant any harsher or more oppressive burden than is strictly required for the purpose of securing that justice is done.”

The question in this appeal is whether the public interest in the administration of justice requires the application of an analogous principle to documents disclosed by the prosecution to the defence in criminal proceedings.

Likewise, the core of the principle of immunity from suit is not in doubt. By the end of the 19th century it was settled that persons taking part in a trial – the judge, the advocates, the witnesses – could not be sued for anything written or spoken in the course of the proceedings. The immunity was absolute and could not be defeated even by proof of malice. The reason for the immunity was explained by Fry L.J. in a well known passage in Munster v. Lamb, 11 Q.B.D. 588, 607:

“Why should a witness be able to avail himself of his position in the box and to make without fear of civil consequences a false statement, which in many cases is perjured, and which is malicious and affects the character of another? The rule of law exists, not because the conduct of those persons ought not of itself to be actionable, but because if their conduct was actionable, actions would be brought against judges and witnesses in cases in which they had not spoken with malice, in which they had not spoken with falsehood. It is not a desire to prevent actions from being brought in cases where they ought to be maintained that has led to the adoption of the present rule of law; but it is the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely dischargingtheir duty. It must always be borne in mind that it is not intended to protect malicious and untruthful persons, but that it is intended 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.”

In Watson v. M’Ewan [1905] A.C. 480 the House of Lords extended the immunity to statements made by the witness to a party and his legal advisers with a view to giving evidence. The question in this case is whether the immunity extends more generally to statements made to or by investigators for the purposes of a criminal investigation.

It will be noticed that although both principles are concerned with public policy in securing the proper administration of justice, the interests which they are intended to protect are somewhat different and this is reflected in differences in their scope. The implied undertaking in civil proceedings is designed to limit the invasion of privacy and confidentiality caused by compulsory disclosure of documents in litigation. It is generated by the circumstances in which the documents have been disclosed, irrespective of their contents. It excludes all collateral use, whether in other litigation or by way of publication to others. On the other hand, the undertaking may be varied or released by the courts if the interests of justice so require and, unless the court otherwise orders, ceases to apply when the documents have been read to or by the court, or referred to, in proceedings in open court: R.S.C., Ord. 24, r. 14A.

The immunity from suit, on the other hand 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 generated by the circumstances in which the statement was made and it is not concerned with its use for any purpose other than as a cause of action. In this respect, however, the immunity is absolute and cannot be removed by the court or affected by subsequent publication of the statement.

While therefore the effect of the two principles may occasionally overlap, it is easy to think of cases in which one would apply but not the other. For example, a statement protected by the immunity may be disclosed on discovery and subsequently read out in court. The implied undertaking would cease to apply and anyone would be free to publish the statement but it still could not form the basis of a cause of action.

Nevertheless, there is some degree of interaction between the two principles. The implied undertaking prevents, so far as possible, the publication or dissemination of disclosed documents and therefore restricts the extent to which damage can be caused by defamatory statements which they may contain. In this sense, the injustice which may be caused by the fact that such defamatory statements are protected by the immunity is reduced.

It is now time to make a separate examination of the scope of the two principles. I shall begin with the implied undertaking.

4. The implied undertaking

We are concerned in this appeal with whether an implied undertaking is created by the disclosure of documents pursuant to the prosecution’sduty at common law, in accordance with the principles most recently discussed by Lord Hope of Craighead in Reg. v. Brown (Winston) [1998] A.C. 367, 374-377. Since the trial of Fuller and Deacon took place, the law of disclosure has been put on a statutory basis by the Criminal Procedure and Investigations Act 1996. Section 17 imposes obligations of confidentiality in relation to disclosed material, but I do not think that the statute is of any assistance in deciding whether such obligations existed at common law.

Until recently there was no authority on the subject. The reason, I suspect, is that the perception by prosecuting authorities of their disclosure obligations was substantially widened by the decisions of the Court of Appeal in Reg. v. Ward (Judith) [1993] 1 W.L.R. 619 and Reg. v. Keane [1994] 1 W.L.R. 746. Under the earlier Attorney-General’s guidelines (Practice Note (Criminal Evidence: Unused Material) [1982] 1 All E.R. 734), the documents disclosed would almost invariably have fallen within the immunity principle as extended in Watson v. M’Ewan [1905] A.C. 480. We were told that the disclosure of internal memoranda made by investigators or letters passing between investigators is a relatively new practice.

The matter was however discussed by the Court of Appeal in Ex parte Coventry Newspapers Ltd. [1993] Q.B. 278. The case was unusual in a number of respects and did not involve normal disclosure by the prosecution in advance of the trial. The documents in question were in fact disclosed by the Police Complaints Authority pursuant to an order of the Court of Appeal for the purposes of an appeal against conviction. They related to an investigation of the conduct of police officers who had given evidence against the appellant. As a result of the information contained in the documents, his appeal was allowed. A newspaper which was being sued for libel by the same police officers applied to the court for the accused to be given leave to allow it to use the documents in its defence. Both sides proceeded on the assumption that there had been an implied undertaking which it was necessary to vary. Lord Taylor of Gosforth C.J. endorsed this assumption. He said, at p. 285:

“But for such proposed order the appellant would clearly be unable to hand over the documents: he would be subject to an implied undertaking, analogous to that arising on discovery in civil proceedings, not to use the disclosed documents otherwise than for the purposes for which discovery was given, here the pursuance of the criminal appeal, which is now, of course, successfully concluded.”

The court went on to hold that the interests of justice required the undertaking to be varied so as to allow the appellant in the criminal proceedings to hand over the documents to the newspaper upon its undertaking to use them only for the purposes of its defence.

At first instance in Mahon v. Rahn (unreported), 19 June 1996, Brooke J. held that counsel in Ex parte Coventry Newspapers Ltd. [1993] Q.B. 278 had been right to concede the existence of an implied undertaking. The case concerned a libel action brought by two directors of a London firm of stockbrokers against two Swiss bankers. The alleged libel was contained in a document provided by the bankers to the SecuritiesAssociation and the Serious Fraud Office in connection with an investigation which led to a prosecution of the plaintiffs on charges of conspiracy to defraud. The document was disclosed to the plaintiffs as an exhibit to a witness statement before the trial and subsequently read in open court. At the end of the prosecution case the plaintiffs successfully submitted that there was no case to answer and were acquitted.

Brooke J. said that in his view the general principle was that the use of documents disclosed for the purpose of legal proceedings should remain under the control of the court. The undertaking could always be varied in an appropriate case but the court should retain control. It was a necessary tool for preventing its process from being abused. He also held that the undertaking applied to material disclosed by the prosecution as intended to be used at the trial as well as to unused material and that it survived the use of the document in open court.

In the Court of Appeal [1998] Q.B. 424 his decision was reversed. Otton L.J. said, at p. 448, that he could find “no basis for an implied undertaking in criminal proceedings on the grounds of privacy and confidentiality.” The reason, as I understand it, was that it was foreseeable that the information, if acted upon, would be made public. It is true that in Mahon v. Rahn the letter had actually been made public by use in open court. But that raised the separate and subsequent question of whether the undertaking, if it exists, should survive publication in open court. In the case of information which has not been made public, like the letter and file note in this case, the fact that publication may have been foreseeable as a possibility at the time when the documents were written does not mean that privacy and confidentiality should not be preserved so far as it is possible to do so. It is equally foreseeable that documents disclosed in civil discovery will be published in open court but that does not mean that there is no point in the court retaining control over the use of documents which have not been published or even, for some purposes, over those which have.

Otton L.J. went on to say that he saw no analogy between the position of the Crown in a criminal case and that of a party in civil proceedings. It could not be said that the Crown would be deterred from complying with its obligations of disclosure, whether at common law or now under statute, by concern that the accused might use the documents for some ulterior purpose.

I am not sure that it is right to treat the implied undertaking in civil proceedings merely as an inducement to a litigant to disclose documents which he might otherwise have been inclined to conceal. I think that it is more a matter of justice and fairness, to ensure that his privacy and confidentiality are not invaded more than is absolutely necessary for the purposes of justice. But I readily accept that these considerations do not apply to the Crown as prosecutor with the same force as they apply to an individual litigant. In the case of material disclosed by the prosecution, the main interest in privacy and confidentiality lies at one or sometimes two removes: in the persons who provided the information and in the persons to whom the information refers.

Otton L.J. said that the most impressive argument in favour of an implied undertaking was the need to protect informers close to criminals.But in his view sufficient protection was already provided by public interest immunity, which entitled the prosecution to apply for leave to withhold documents which would disclose the identity of a police informer, and by the immunity from suit accorded to statements made for the purpose of litigation, which I shall consider in more detail later.

In my view, this takes too narrow a view of the interests which require protection and too broad a view of the other rules which may be available for that purpose. Many people give assistance to the police and other investigatory agencies, either voluntarily or under compulsion, without coming within the category of informers whose identity can be concealed on grounds of public interest. They will be moved or obliged to give the information because they or the law consider that the interests of justice so require. They must naturally accept that the interests of justice may in the end require the publication of the information or at any rate its disclosure to the accused for the purposes of enabling him to conduct his defence. But there seems to me no reason why the law should not encourage their assistance by offering them the assurance that, subject to these overriding requirements, their privacy and confidentiality will be respected.

One must also consider the interests of persons who are mentioned in the statements. Information given to the police or investigatory authorities will frequently contain defamatory or at least hurtful allegations about other people. That is to be expected in a criminal investigation. Such people may never be charged or know that they were under suspicion or that anything untoward was said about them. If such allegations are given publicity during the course of the proceedings, they will have to suffer the consequences because of the public interest in open justice. Even then, the judge will often be able to prevent the introduction of allegations about third parties which are not relevant to the issues in the case. But there seems to me no reason why the accused should be free, outside court, to publish such statements to the world at large. The possibility of a defamation action is for most people too expensive and impractical to amount to an adequate remedy.

Otton L.J. thought that the rules of public interest immunity, immunity from suit and qualified privilege should be sufficient protection for people who might be adversely affected by collateral use of disclosed documents. But the first two of these rules are not designed to protect the same interests as those protected by the implied undertaking and can therefore offer only accidental protection. Public interest immunity, in a criminal trial, involves weighing the public interest in confidentiality against the interests of justice – usually, the interests of the accused in being able to establish his defence. But the interests at stake when a question of collateral use arises are quite different. One is, by definition, no longer concerned with the use of the information for the purposes of establishing a defence at the trial. The interests to be weighed are, on the one hand, the public interest in allowing the collateral use (as in Ex parte Coventry Newspapers Ltd. [1993] Q.B. 278) and, on the other hand, the public interest in avoiding unnecessary invasion of the privacy and confidentiality of the maker of the statement and anyone to whom it refers. There may beoccasions on which the answers produced by these two exercises will coincide but that will be accidental.

Likewise, as I mentioned earlier, the interests protected by the immunity rule are different. The immunity rule, for example, offers no protection of the privacy or reputations of people mentioned in the statement. On the contrary, it makes their position worse, since they cannot even clear their names by bringing a libel action against the maker. In the present case, the plaintiff might have taken some comfort from the fact that the documents which showed that he had been under suspicion could go no further than the files of the S.F.O. and Mr. Fuller’s solicitors. They could not have damaged his reputation in the outside world. Instead, he chose to bring libel proceedings and (apparently due to the thoughtlessness of his solicitors) put the statements into the public domain by quoting them in extenso on a specially indorsed writ.

In addition, the immunity rule, at its widest, protects only statements made for the purposes of the investigation. It offers no protection for documents in existence at the time when the investigation commences and which are given to the police or investigators for the purposes of the prosecution. But these documents too would have been disclosed only because the interests of justice so required and there seems no reason why that should justify their collateral use.

Finally, qualified privilege also seems to me an inadequate answer, both for the reasons given by Fry L.J. in Munster v. Lamb, 11 Q.B.D. 588, 607 and because it does nothing to protect the privacy of persons mentioned in the statements.

In my opinion, therefore, the disclosure of documents by the prosecution as unused material under its common law obligations did generate an implied undertaking not to use them for any collateral purpose. I agree with the reasoning of Brooke J. on this point in Mahon v. Rahn and I think that Sir Michael Davies was right to strike out the action for the reasons which he gave.

I do not propose to express a view on the further points which arose in Mahon v. Rahn [1998] Q.B. 424, namely whether the undertaking applies also to used materials and whether it survives the publication of the statement in open court. I do not do so because these questions may well have been overtaken by the express provisions of the Criminal Procedures and Investigations Act 1996. But I would draw attention to the comments of Brooke J. in Mahon v. Rahn on the question of whether the provisions of Ord. 24, r. 14A (which was introduced in response to a decision of the European Court of Human Rights holding that the previous law unduly limited freedom of expression) and, by parity of reasoning, section 17(3)(b) of the Act of 1996, are not too widely drawn. There seems to me much force in his view that the court should nevertheless retain control over certain collateral uses of the documents, including the bringing of libel proceedings.

5. Immunity from suit

In view of the opinion I have expressed on the implied undertaking, it is not strictly necessary for me to consider the ground upon which the Court of Appeal dismissed the appeal, namely immunity from suit.Nevertheless, the question was fully argued before your Lordships and I think it is right to deal with it. It could easily have happened that, as in Mahon v. Rahn [1998] Q.B. 424, the documents were read in open court. I think it would be right for your Lordships to decide whether in that case the plaintiff would have been entitled to rely upon them for the purposes of an action in libel.

I have already described the evolution of the principle of immunity from suit in respect of statements made in the course of litigation and its extension in Watson v. M’Ewan [1905] A.C. 480 to statements made before the proceedings. In that case, a wife who had brought matrimonial proceedings in Scotland claimed that a doctor (who had examined her) had made defamatory statements in the course of giving evidence for her husband. This was held to be subject to absolute immunity, but she relied also upon the publication of the same statements before trial to her husband and his lawyers. In the House of Lords, Lord Halsbury L.C. said that the earlier statements were subject to the same immunity. He 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. It may be that to some extent it seems to impose a hardship, but after all the hardship is not to be compared with that which would arise if it were impossible to administer justice, because people would be afraid to give their testimony.”

In later cases there has been some discussion of the general principle upon which this extension was based. Judges have rightly cautioned against further extension merely by analogy. In Mann v. O’Neill (1997) 71 A.L.J.R. 903, 912 McHugh J. identified two dangers in judicial reasoning – a Scylla and Charybdis through which it was necessary to navigate. The first was:

“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.”

On the other hand, there was an opposite peril in:

“the temptation too readily to dismiss the defence as applicable in novel circumstances because the case is not within or analogous to an existing category but without determining the matter by reference to the defence’s underlying rationale.”

There is no doubt that the claim for absolute immunity in respect of statements made by one investigator to another (as in the case of the letter from the S.F.O. to the Attorney-General of the Isle of Man) or by an investigator to a person helping with the inquiry (as in the statements of Ms McKenzie recorded in the file note) or to an investigator by a person helping the inquiry who is not intended to be called as a witness (as in theremarks of Mr. Rogerson included in the file note) is a novel one. So far as I know, it is not a category of absolute immunity which has been considered before. But it should not for that reason be rejected. Again, I would imagine that the reason why this question now arises for the first time is that before the broadening of the prosecution’s disclosure obligation, such letters and memoranda, internal to the investigation, would never have seen the light of day. At any rate, the question is now whether they fall within the underlying rationale for the existence of immunity from suit.

In Mann v. O’Neill, 71 A.L.J.R. 903, 907 the judgment of Brennan C.J., Dawson, Toohey and Gaudron JJ. describes the rationale as one of necessity:

“It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is ‘viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated.’ Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged.”

Thus the test is a strict one; necessity must be shown, but the decision on whether immunity is necessary for the administration of justice must have regard to the cases in which immunity has been held necessary in the past, so as to form part of a coherent principle.

Approaching the matter on this basis, I find it impossible to identify any rational principle which would confine the immunity for out of court statements to persons who are subsequently called as witnesses. 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. If it depends upon the contingencies of whether he will be called as a witness, the value of the immunity is destroyed. At the time of the investigation it is often unclear whether any crime has been committed at all. Persons assisting the police with their inquiries may not be able to give any admissible evidence; for example, their information may be hearsay, but none the less valuable for the purposes of the investigation. But the proper administration of justice requires that such people should have the same inducement to speak freely as those whose information subsequently forms the basis of evidence at a trial.

When one turns to the position of investigators, it seems to me that the same degree of necessity applies. 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 suchstatements 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) [1981] 1 W.L.R. 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.

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 Marrinan v. Vibart [1963] 1 Q.B. 528 the Court of Appeal held that the immunity in respect of statements made in court or with a view to a prosecution could not be circumvented by alleging that it formed part of a conspiracy with other witnesses to give false evidence. That seems to me to be right. On the other hand, the immunity does not apply to actions for malicious prosecution where the cause of action consists in abusing legal process by maliciously and without reasonable cause setting the law in motion against the plaintiff. It does not matter that an essential step in setting the law in motion was a statement made by the defendant to a prosecuting authority or even the court: see Roy v. Prior [1971] A.C. 470.

Actions for defamation and for conspiracy to give false evidence plainly fall within the policy of the immunity and actions for malicious prosecution fall outside it. In between, there is some disputed ground. In Evans v. London Hospital Medical College (University of London) [1981] 1 W.L.R. 184 Drake J. held that it precluded reliance on the statement in an action for negligence in which it was alleged that a carelessly prepared post mortem report had led to the plaintiff being unjustifiably arrested and charged with murder. I express no view on this case, which I think might nowadays have been decided on the ground that the defendants owed the plaintiff no duty of care. There is also some dispute over whether it applies to the emergent tort of abuse of public office. In Silcott v. Commissioner of Police of the Metropolis (1996) 8 Admin.L.R. 633 and again in Docker v. Chief Constable of West Midlands Police, The Times, 29 April 1998; Court of Appeal (Civil Division) Transcript No. 472 of 1998, the Court of Appeal decided that it did while in Bennett v. Commissioner of Police for the Metropolis (1997) 10 Admin.L.R. 245 Sir Richard Scott V.-C. decided that it did not. The point has not been argued before your Lordships and I therefore likewise express no view. But I am satisfied that the Court of Appeal was right in holding that the statements relied upon in this case were protected by absolute immunity and for that reason also I would dismiss the appeal.

JUDGMENTBY-7: Lord Hope of Craighead

JUDGMENT-7:
Lord Hope of Craighead: My Lords, the plaintiffs in this case are Mr. Taylor, who is an English solicitor practising in the Isle of Man, and Monarch Assurance Plc., an Isle of Man company of whichMr. Taylor is the managing director. Their action is one of damages for defamation. It is based entirely upon the contents of two documents.

The first document is a letter dated 4 May 1994 which was sent by the second defendant Katherine McKenzie, an investigating lawyer employed by the first defendant, the Serious Fraud Office, to the Attorney-General of the Isle of Man. It was a letter of request which was written in connection with an investigation which was being carried out by the S.F.O. into an allegation of fraud committed within the United Kingdom by Charles Deacon and James Fuller and by another man named John Patrick Savage who later died. The request was for assistance to enable inquiries to be undertaken in the Isle of Man under the Criminal Justice Act 1990 (Isle of Man). The second document is a file note which was prepared on 14 May 1994 by the second defendant following a meeting which took place on that date as part of the same investigation at the Solicitors’ Complaints Bureau. At that meeting the second defendant was accompanied by Detective Inspector Hulse of the Staffordshire Police. They had gone to see the fourth defendant, an employee of the third defendant, the Law Society, to obtain information from him about how the compensation fund could be expected to work in the circumstances of the alleged fraud. The plaintiffs maintain in their statement of claim that the letter and the file note contain words which, in their natural and ordinary meaning, are defamatory of them because they allege that they were involved in the fraudulent activity which was being investigated.

A copy of the letter was retained within the office of the S.F.O. together with the file note as part of the papers relating to the investigation. Some months later the criminal proceedings which had been commenced against Deacon and Fuller were transferred to the Crown Court. On 24 October 1994 the solicitors for Deacon and Fuller received from the S.F.O. under the common law disclosure rules material falling within the category of “unused material” which included these two documents. In May 1995 Mr. Taylor was asked by counsel representing Fuller whether he would be willing to assist him with his defence. A meeting with him was then arranged, and in order to enable him to prepare for it he was shown a number of documents. These included the copy letter and the file note which had been disclosed to the solicitors by the S.F.O. In January 1996 Deacon and Fuller were convicted of conspiracy to defraud after a trial in which Mr. Taylor did not, in the event, give evidence. Neither of the two documents were produced or referred to at the trial. The second and fourth defendants were not called upon either by the Crown or by the defence to attend the trial as witnesses.

Two points emerge clearly from this brief narrative. The first is that, had it not been for the obligation which rested on the S.F.O. under the common law disclosure rules, these two documents would never have been seen by Mr. Taylor or by anyone else who was not involved in the investigation by the S.F.O. into the alleged fraud. The copy letter and the file note would have remained on the S.F.O.’s files. There would have been no dissemination to anybody outside its office of any defamatory material which was contained in them. The second is that, as none of the defendants were witnesses or potential witnesses at the trial, they do not have the protection of the absolute privilege which is available in respect of what issaid in court by witnesses and in statements which are taken when the case is being prepared for trial by potential witnesses: Watson v. M’Ewan [1905] A.C. 480.

Two further points need to be made about the common law disclosure rules in order to set these issues into their proper context. The first point relates to the scope of these rules. They have provided the basis for the rules which have now been introduced by statute: see sections 1-21 of the Criminal Procedure and Investigations Act 1996. By October 1994, when the material which is relevant to this case was disclosed by the S.F.O., it was no longer enough to disclose details of the evidence which the prosecution proposed to use at the trial. The duty extended to “unused” material as well, namely to material which the prosecution had decided not to use but which might be useful to the defence. It extended to statements taken from witnesses whom the prosecution had decided not to call at the trial, to items which the prosecution had decided not to exhibit but which the defence might wish to use in support of the defence case and to all manner of other material, irrespective of whether it would be admissible in evidence, which might possibly be helpful to the defence or damaging to the prosecution case. In the interests of ensuring a fair trial the duty had been extended far beyond the original concept of giving fair notice to the defendant of the case which he had to meet. And the consequences of non-disclosure had become so serious for the administration of justice – the setting aside of a conviction, with the prospect of much adverse publicity – that in practice the duty extended to everything on the prosecutor’s files which could not be made the subject of a specific request for non-disclosure. Thus the correspondence, file notes and working papers of investigators, which in the past would have been regarded as purely internal to the prosecutor and not available at all for defence scrutiny, had now become disclosable.

The second point is the recent origin of this development. It first found expression in the Attorney-General’s guidelines (Practice Note (Criminal Evidence: Unused Material) [1982] 1 All E.R. 734). But the extent of the modern common law rules was not clearly established until a series of cases in which the Court of Appeal held that a failure to disclose what ought to have been disclosed was an irregularity in the course of the trial. This enabled the court to hold that the conviction was unsafe: Reg. v. Maguire [1992] Q.B. 936; Reg. v. Ward (Judith) [1993] 1 W.L.R. 619 and Reg. v. Davis [1993] 1 W.L.R. 613. The history of the matter was described in Reg. v. Brown (Winston) [1994] 1 W.L.R. 1599; [1998] A.C. 367. The fact that the development is so recent is important, as one compares the modern law rules about disclosure with the absolute immunity which is given to witnesses for things said in court and in statements taken from potential witnesses. Central to the present case is the question whether the law about the immunity of witnesses and potential witnesses, which was settled by authority long before the evolution of the modern disclosure rules, is in need of some adaptation or adjustment in order to keep pace with the widening of the disclosure rules.

In my opinion it is necessary here, as in so many matters affecting the criminal law, to balance the public interest in the administration of justice against the interests of the individual. The history of the evolution of thedisclosure rules shows that the balance has swung a long way towards the interests of the individual who is being prosecuted. This is in recognition of the fact that the defendant in criminal proceedings has the right to insist on a fair trial. Fairness to the defendant demands the widest possible disclosure. In practice, to avoid the risk of unfairness and because the prosecutor does not have the time or the resources to edit out every item which need not be disclosed, disclosure under the modern rules tends to provide the defence with more material than is strictly necessary.

But the administration of justice is not all about fairness to the defendant. It is also about the interests of those individuals who may be affected by dissemination of the material. There is a public interest also, in the detection and punishment of crime. If that interest is put at risk because of the consequences of the disclosure rules, the balance between the public interest and the interests of the individual is disturbed. It needs to be adjusted in favour of the public interest. This cannot be done by reducing the scope of the disclosure rules. That would prejudice the right of the defendant to a fair trial, which is always paramount. What can be done is to increase the protection to those who may be affected by the disclosure rules against the collateral use of such material – that is to say, against its use for purposes other than to ensure that the defendant has a fair trial.

I consider that Mr. Caldecott for the respondents took your Lordships to the heart of the matter when he submitted that the public interest required that all those involved in a criminal investigation should be able to communicate freely without being inhibited by the threat of proceedings for defamation such as those which have been brought in the present case. Those who give or may give evidence at the trial are protected by the traditional witness immunity when they are in the course of preparing their evidence. But the traditional protection has until now been applied only to persons who fall within that category. Yet the typical criminal investigation involves many other people who are not witnesses or potential witnesses. They include those who simply provide information to the investigators. The information which they give may be useful as background but not worth investigating further for use at the trial. It may not even be admissible as evidence. But it may nevertheless be worth putting on record, perhaps to close one line of inquiry or to open up one which has not yet been investigated. As soon as it has been recorded, perhaps in a file note to ensure that it is not lost sight of should further reference to it become necessary, it is at risk now of being disclosed to the defence. Then there are the investigators themselves and the prosecuting officials with whom they are required to communicate. They are likely to be members of a team, perhaps working from various offices. The memberships of the team may change from time to time. The efficiency of the investigation may be dependent upon the completeness and accuracy of the information which has been committed to paper by the investigators. Yet anything which is committed to paper, whether by the official or the investigator, is now at risk of being disclosed under the disclosure rules.

The risk to the administration of justice lies in the inhibiting effect of collateral use of this material. A criminal investigation may travel in various directions before it settles down and concentrates on the activitiesof those against whom the prosecutor believes there is sufficient evidence. Those who provide information to investigators usually do so in the belief, which may or may not be expressed by them, that the information is being given out of a sense of public duty and in confidence. That information may, if it is to be useful to the investigator, contain material which is defamatory. So long as the information goes no further, no harm is done to anybody. But disclosure releases the defamatory material from the control of the prosecutor. Unless protected, it may be disseminated further and become actionable.

It requires little imagination to appreciate the damaging effects on the supply of information if those who supply it are to be subjected to claims for damages for defamation arising from what they have said. The process of investigation is likely to be inhibited if the investigator is at risk of such a claim because of something which he has recorded for his own use, or for use by others in his team, in a file note. As Lord Keith of Kinkel remarked in Hill v. Chief Constable of West Yorkshire [1989] A.C. 53, 63d, in a different but analogous context, the imposition of liability in such circumstances may lead to the exercise of the investigatory function being carried on in a detrimentally defensive frame of mind. This may prejudice the defendant, because other possible lines of inquiry which might assist his defence will not appear anywhere in writing lest they should be thought, following disclosure, to be defamatory. I do not think that it is possible to overstate the importance, in the public interest, of ensuring that material which is disclosed in criminal proceedings is not used for collateral purposes.

Under the existing rules all those who participate in a criminal investigation in good faith are entitled to claim the protection of qualified privilege. But that is an imperfect protection, because qualified privilege requires to be pleaded and established as a defence. No action can be struck out on the ground of qualified privilege. The requirement therefore is to extend to informants, investigators and prosecutors whose statements are revealed by the operation of the disclosure rules the benefit of the absolute privilege in respect of the statements made which is already accorded to witnesses and potential witnesses. And it is necessary to extend to them the same absolute immunity against actions for conspiracy or for negligence based upon disclosed material as has already been recognised in the case of the police: see Marrinan v. Vibart [1963] 1 Q.B. 528 and Hill v. Chief Constable of West Yorkshire [1989] A.C. 53. Such material may however still be actionable on other grounds where malice and lack of reasonable and probable cause can be established. Just as proceedings for perjury are available to deal with the witness who would otherwise be protected against statements made in the witness box, so also the public interest requires that a remedy for malicious prosecution should remain available against those who would be entitled to the benefit of the absolute privilege but who have acted maliciously and without reasonable and probable cause during the investigation process. But that is a quite separate matter as it is the malicious abuse of process, not the making of the statement, which provides the cause of action. The public policy argument for extending the absolute privilege, consistently with established principles, seems to me to be unanswerable.

I see the two solutions as complementary to each other. If the absolute privilege and the consequent immunity are to be kept within the limits which are necessary for the administration of justice, they must be accompanied by a rule which restricts the use and dissemination of disclosed material. The purpose of the immunity is to ensure the integrity of the investigation process. The disclosure should extend no wider than is necessary to serve the public interest in the administration of justice. It should not be accompanied by risks to the good name of those who are not on trial from whom the protection of defamation proceedings has been removed by the immunity. So a restriction on the release and collateral use of the disclosed material by means of the implied undertaking can be seen as a necessary balance against the possible harm which might flow from the absolute nature of the immunity.

For these reasons as well as those given in the speech of my noble and learned friend, Lord Hoffmann, which I have had the benefit of seeing in draft and with which I agree, I would dismiss the appeal.

JUDGMENTBY-8: Lord Hutton

Lord Hutton: My Lords, I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Hoffmann and Lord Hope of Craighead, with which I am in agreement, and will only add a few observations of my own in relation to the principle of immunity from suit. Under this principle it is settled that no action can be brought against the judge, counsel, witnesses, jurors and parties for words spoken or written in the course of a trial, and this immunity is absolute and cannot be defeated by proof of malice. In Munster v. Lamb, 11 Q.B.D. 588, 604 Brett M.R. stated:

“The rule of law is that what is said in the course of the administration of the law, is privileged; and the reason of that rule covers a counsel even more than a judge or a witness. To my mind it is ill ogical to argue that the protection of privilege ought not to exist for a counsel, who deliberately and maliciously slanders another person. The reason of the rule is, that a counsel, who is not malicious and who is acting bona fide, may not be in danger of having actions brought against him. If the rule of law were otherwise, the most innocent of counsel might be unrighteously harassed with suits, and therefore it is better to make the rule of law so large that an innocent counsel shall never be troubled, although by making it so large counsel are included who have been guilty of malice and misconduct.”

The immunity was extended by this House in Watson v. M’Ewan [1905] A.C. 480 to statements made by a witness to a party and his solicitor in preparing for a trial, Lord Halsbury L.C. stating, 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. It may be that to some extent it seems to impose a hardship, but after all the hardship is not to be compared with that which would arise if it were impossible toadminister justice, because people would be afraid to give their testimony.”

In recent years the procedure has developed whereby very full disclosure is given to the defendant in a criminal case, so that he will become aware, and others may become aware, of what has been said by investigators and those who speak to them in the course of the investigation which preceded the prosecution. Therefore, just as the preliminary examination of a witness by a party’s solicitor out of court is a step towards the administration of justice which requires to be protected, I consider that the investigation of a suspected crime is a step towards the administration of justice so that the protection of absolute privilege should be given to those who, in the course of their public duty in investigating a suspected crime, speak or write to persons who may be able to provide relevant information, and to such persons in respect of what they say or write to the investigators, and to the giving of information by investigators to their colleagues who are also concerned with the investigation. If this protection were not given police officers and investigators, such as officers of the Serious Fraud Office, who had conducted investigations into suspected crimes and persons who gave information to them “might be unrighteously harassed with suits” and, as Fry L.J. stated in Munster v. Lamb, 11 Q.B.D. 588, 607, there would be the risk that “numerous actions would be brought against persons who were merely discharging their duty.”

In my opinion the argument should not prevail that the defence of qualified privilege would give adequate protection to investigators and those who spoke to them because I consider that there would be a real risk that an unfounded allegation of malice made by a plaintiff bringing an action for defamation would subject an investigator or informant to harassment to which he should not be subjected.

I am in agreement with the statement of Drake J. in Evans v. London Hospital Medical College (University of London) [1981] 1 W.L.R. 184, 192c in respect of witnesses and possible witnesses that

“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.”

I would also apply this requirement to an investigator or a person who gives him information so that the protection will not apply to a gratuitous defamatory remark made by an investigator to a third party or by a third party to an investigator.

In D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171 this House held that a similar immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the N.S.P.C.C to that which the law allowed to police informers. In rejecting an argument that such an immunity could give protection to a malicious informant Lord Simon of Glaisdale said, at p. 233:

“I cannot leave this particular class of relevant evidence withheld from the court without noting, in view of an argument for therespondent, that the rule can operate to the advantage of the untruthful or malicious or revengeful or self-interested or even demented police informant as much as of one who brings information from a high-minded sense of civic duty. Experience seems to have shown that though the resulting immunity from disclosure can be abused the balance of public advantage lies in generally respecting it.”

In this case, whilst the immunity may on occasions benefit a malicious investigator or informant, I consider that the balance of public advantage lies in allowing it to the defendants.

I would dismiss the appeal.

[Reported by Alison Sylvester, Barrister]

[Reported by Shiranikha Herbert, Barrister]

(C)2001 The Incorporated Council of Law Reporting for England & Wales

DISPOSITION:
Appeal dismissed.

Leave to appeal refused.

29 January 1998. The Appeal Committee of the House of Lords (Lord Goff of Chieveley, Lord Hoffmann and Lord Saville) allowed a petition by the plaintiffs for leave to appeal.

Appeal dismissed.

SOLICITORS:
Solicitors: Jeffrey Green Russell; Treasury Solicitor.

Solicitors: Jeffrey Green Russell; Treasury Solicitor; Crockers Oswald Hickson.
Copyright © 2001 The Incorporated Council of Law Reporting for England & Wales