It sometimes vexes police lawyers – how the police can be a prosecutor for the purpose of malicious prosecution when it is the Crown Prosecution Service that makes the decision to prosecute. Further, it has not always been easy to identify what acts of officers can result in liability for misfeasance in a public office. In Rees v Commissioner of Police for the Metropolis [2017] EWHC 273 (QB), Mitting J explained both of these - disagreeing with some previous cases and explaining others.

On 10 March 1987, Daniel Morgan was killed when he was struck multiple times to the head with an axe. After unsuccessful investigations, in April or May 2006, Mr Gary Eaton, an assisting offender, stated that he had information about the murder and gave an account which implicated all four Claimants. There was in relation to some (but not all) of the Claimants, however, evidence of other witnesses.  

At the criminal trial, the trial judge concluded that police officer involved, DCS Cook had improperly prompted Mr Eaton’s evidence, excluded it, and stayed the proceedings against one of the Claimants. The Crown Prosecution Service later discontinued the case against all the remaining Claimants, stating that the evidential test was no longer satisfied.  

The judgment

The Claimants claimed damages against the Metropolitan Police Commissioner for malicious prosecution and misfeasance in public office. The claims of Mr Rees, Glenn Vian and Garry Vian failed. Mr Fillery failed in the malicious prosecution claim but succeeded in his claim for misfeasance.  

Mitting J held that it was the CPS, advised at all stages by Treasury Counsel, who decided that there was sufficient evidence to charge each of the Claimants. The information was incomplete due to the actions of DCS Cook. Mitting J rehearsed the settled law that the mere fact that an individual has given information to the police which leads to their bringing a prosecution does not make that individual the prosecutor. He went on to observe that: [146]

... for Cook to be treated as the prosecutor, the law requires to be stated in a manner not established by existing authority. For the Claimants to succeed on this issue, the law must be that an investigator who, by his deliberate conduct in relation to an important element of a case, prevents the independent decision-maker from reaching a fully informed decision, is to be treated for that reason alone as the prosecutor.  

It was held that a vast amount of information and evidence was presented to the CPS to consider and, save in respect of Mr Fillery, that material did not consist only or determinatively of the evidence of Mr Eaton. Mitting J found that the CPS reached the decision to charge in the exercise of independent judgment on the basis of all of the material of which they were then aware and observed: [146]

Applying the principles derived from the authorities, Cook’s conduct did not make it virtually impossible in practical terms for the CPS, advised by Treasury Counsel, to exercise their independent discretion. They were provided, 10 months before charges were laid, with a detailed and, with the qualifications expressed, reasonably accurate summary of the evidence gathered over 20 years about the murder and those believed to have been complicit in it. The raw material on which that summary was based was supplied to the CPS…The only significant fact which they were not told was that Eaton’s evidence had been improperly prompted by Cook. Further, not only were the CPS able to exercise an independent discretion, they did so...

Mitting J concluded that despite the suppression by DCS Cook of facts relevant to Eaton’s evidence, they did not render the prosecution against any Claimant, other than Mr Fillery, baseless. For those reasons, it was held that DCS Cook was not to be treated as the prosecutor such that the claims for malicious prosecution of the First, Second and Fourth Claimants' failed.  

In case he was incorrect on that point, Mitting J went on to consider the other elements of the tort of malicious prosecution. He found that the evidence satisfied the objective and subjective elements of reasonable and probable cause for all of the Claimants save for Mr Fillery, in respect of whom neither the objective nor subjective elements were satisfied. In terms of malice, it was held that DCS Cook’s state of mind was not malicious: his motive was to bring those he believed to have been complicit in the Morgan murder, and in covering it up, to justice such that none of the Claimants, even Mr Fillery, established the tort of malicious prosecution.  

As for misfeasance, Mitting J held that in prompting Mr Eaton, DCS Cook was acting in the exercise of his public functions as an investigating police officer since a police officer is given authority to investigate by his chief constable and it is one of the functions of an investigative police officer to investigate crimes and obtain witness statements for the purposes of criminal investigations; and that misconduct in the performance of police functions is sufficient to found the tort.  

Identifying that the tort can be committed where an act is unlawful and the public officer does not have an honest believe that it is lawful, Mitting J held knowingly prompting a potentially unreliable witness to implicate persons in the murder and then concealing the same from the CPS amounted to the crime of perverting the course of justice. DCS Cook deliberately breached guidelines and express instructions from superiors which he knew would be likely to undermine the integrity of the evidence. Further, it was held, DCS Cook realised that his conduct would probably injure the Claimants since arrest and prosecution would inevitably lead to a period of loss of liberty.  

However, on the final question of whether DCS Cook’s actions caused loss, Mitting J assessed what would have happened if Mr Eaton’s evidence had never been thought to be available. He held, on the balance of probabilities, that prosecuting Counsel and the CPS would have decided to prosecute Mr Rees and Glenn and Garry Vian on the basis of the evidence available when they were charged, other than that of Mr Eaton, such that they had suffered no loss. Further, there was reasonable and probable cause to prosecute. As a consequence their claims failed.  

In respect of Mr Fillery, since the only evidence on which the prosecution proposed to rely was that of Mr Eaton, and since, but for DCS Cook’s conduct in relation to Mr Eaton, Mr Eaton’s evidence would never have seen the light of day, Mr Fillery would not have been prosecuted and it followed that he had suffered loss and his claim for misfeasance succeeded in full.  

Mitting J expressly considered and rejected determining the issue of loss or injury on the basis of the 'material contribution' causation test often applied in medical cases (and per Bailey v Ministry of Defence [2008] EWCA Civ 883; [2009] 1 WLR 1052) on the grounds that there is nothing 'unknown' about the reasons for the prosecution of the Claimants which he, as a Judge, could not determine. He stated that no expertise equivalent to medical science was required to reach such a conclusion and he was not required to assess the chance in percentage terms of prosecution without the evidence of Mr Eaton.

Commentary

The background and history of this case is almost uniquely complex, stretching back as it did to events some 30 years before the civil action. That said, the decision provides helpful clarification of the circumstances in which an action for malicious prosecution or misfeasance may succeed and Mitting J used the multi-factorial events under examination as an opportunity to limit or contain the scope of any potential ambiguity from obiter in earlier decisions.  

When the police will be a prosecutor

Further, and helpfully, the circumstances in which the police may be considered the prosecutor, even when the CPS take the decision to prosecute, have been clarified which may be of assistance to police forces in (no-doubt plentiful) receipt of malicious prosecution and/or misfeasance civil claims following discontinuance or acquittals in the criminal courts.

It bears emphasis that a police force can (by virtue of vicarious liability under section 88 of the Police Act 1996) be treated as the prosecutor where:

- They intend that there should be a prosecution; and
- They alone know the facts of the alleged offence; and
- They deliberately misstated the facts to the person making the decision to lay the charge (almost invariably the CPS); and
- The person who decides to lay the charge did not, and could not have, formed an independent judgment as to whether a charge should be laid.

Importantly for police forces, Mitting J highlighted that there is a difference between making it virtually impossible for the CPS to exercise independent discretion on the one hand; and making the exercise of that discretion more difficult (because of the deliberate concealment of an important fact) on the other. He held that the latter lies on the wrong side of the line for determining whether or not someone other than the CPS is to be treated as the prosecutor for the purpose of the tort of malicious prosecution.  

Mitting J gave specific consideration to the decision of Cranston J in Clifford v The Chief Constable of Hertfordshire Constabulary [2008] EWHC 3154 (QB) and confirmed that he had "not followed or applied the observations" in that case, going on to observe that on one reading of Cranston J's judgment, the police may be treated as a prosecutor if they fail to forward information to the CPS if it is instrumental in the prosecution. Mitting J doubted that was Cranston J's intention and, if it was, Mitting J disagreed and stated that such a scenario is confined to circumstances in which the determinative facts were known only to the police. He added:

... it cannot be that the police become a prosecutor of a case when the charge has been laid by, or on the decision of, the CPS, merely because after charge they fail to forward some non-trivial information to the CPS relevant to the prosecution. I accept that a prosecutor who continues a prosecution after he knows that it has become baseless may be liable for the tort of malicious prosecution from that point on; and that it is arguable that a police officer, responsible for the investigation which has given rise to the charge, may be treated as a prosecutor if he deliberately suppresses information which would reveal to the CPS that the prosecution had become baseless.  

The case also highlights that the issue of malice is a substantial hurdle which will, in all but the clearest of cases, be difficult for a Claimant to overcome. Even where it is found that the police have 'overstepped the mark' to the point of committing a criminal offence and intending to pervert the course of justice, where the officer’s state of mind is to bring those he believed to be guilty to justice, that can be sufficient to demonstrate an absence of the malice element.  

Actions that can amount to misfeasance

In terms of misfeasance, Mitting J dismissed the arguments on behalf of the Metropolitan Police, based on Calveley v Chief Constable of the Merseyside Police [1989] 1 AC 1228, that whatever the officer may have done, he was not exercising a public power such as a constable’s common law and statutory power of arrest or search on the following basis. He held that the tort is not confined to the exercise of a common law or statutory power and misconduct in the performance of police functions is sufficient to found the tort; to hold otherwise would create unjustified anomalies in law which should not be tolerated: [182]

Case law establishes that misconduct in the performance of police functions is sufficient to found the tort. In Cornelius v London Borough of Hackney [2002] EWCA Civ 1073, Waller LJ cited with approval the unreported judgment of the Vice Chancellor in Peter Elliot v Chief Constable of Wiltshire Constabulary 20 November 1996, in which the point had been taken that when a police officer supplied details of convictions to the press, he did not do so, purporting to exercise a relevant public power. He held that the facts alleged would give rise to a claim:

"Police officers have a status at common law, and perhaps statute as well, which is both a privilege and a source of powers and duties. If in the apparent performance of functions pertaining to their office police officers commit misconduct, then if the other ingredients of the tort of misfeasance in public office, and in particular the requisite intention to injure and resulting damage, are present the tort of misfeasance in public office is, in my opinion, made out."

Mitting J highlighted the two ways in which the tort can be made out - targeted malice requiring proof of improper motive or unlawful action where the officer has no honest belief that his actions are lawful: [183]-[184] 

The first way in which the tort can be committed – so called "targeted malice" – requires proof of an improper or ulterior motive. This is either identical to or so closely similar to the element of malice required to be proved in malicious prosecution as to be indistinguishable. For the reasons given before, it is not made out in this context too.

The second way in which the tort can be committed requires proof that the act is unlawful and that the public officer does not have an honest belief that it is lawful. Frequently, the act will be unlawful because it is in excess of powers; but that is not the only way in which a public official can commit an unlawful act. A police officer who discloses confidential data to a journalist... commits a civil wrong under the Data Protection Act 1998 and abuses the authority given to him by his chief constable to gain access to such data. A police officer who interferes improperly with the gathering of evidence for a criminal prosecution may also commit the common law crime of doing an act tending and intended to pervert the course of justice. In any of these cases, the element of unlawful conduct will be made out.

Determination of liability in any case of alleged misfeasance in public office will necessarily involve an assessment of injury or loss. Where the CPS would have prosecuted regardless of the misfeasance, no loss is suffered. This decision affirms that the Court’s role is to determine what would have happened 'but for' the misfeasance, assessed on the balance of probabilities [193]. The question of whether the misfeasance made a mere 'contribution' to the injury is not relevant: a case will fail in the absence of causation of loss on the balance of probabilities.