Akenzua v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Scott Baker,Lord Justice Simon Brown |
| Judgment Date | 23 October 2002 |
| Neutral Citation | [2002] EWCA Civ 1470 |
| Docket Number | Case No: B1/1999/1213 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 October 2002 |
[2002] EWCA Civ 1470
Lord Justice Simon Brown
Vice President of the Court of Appeal, Civil Division
Lord Justice Sedley and
Lord Justice Scott Baker
Case No: B1/1999/1213
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Central London County Court
His Honour Judge Hornby
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicholas Blake Esq, QC & Matthew Ryder Esq (instructed by Christian Fisher Khan) for the Appellants
Jonathan Crow Esq (instructed by Treasury Solicitor) for the First Respondent
Simon Freeland Esq QC & Jeremy Johnson Esq (instructed by the Director of Legal Services) for the Second Respondent
The history
Delroy Samuel Denton is serving a sentence of life imprisonment for the murder of Marcia Zena Laws, whose personal representatives are the claimants and appellants in these proceedings. The question we have to decide is whether it is arguable in law that Zena Laws' death at Denton's hands was the actionable consequence of acts of misfeasance in public office by one or more officials of the Home Office or officers of the Metropolitan Police. No point is taken for the present on the fact that it is the Home Secretary and the Commissioner of Police rather than the individual officers who are sued. (Practitioners tend to overlook the fact that the list published pursuant to s.17 of the Crown Proceedings Act names the Home Office, not the Home Secretary, as the name in which the Crown may be sued.)
The reason why it is said that the killing of Marcia Laws is their legal responsibility is this. Denton entered this country in April 1993 from Jamaica, the country of his nationality. Using his brother's passport he obtained permission to remain for 6 months. He was arrested the following month but not charged. An immigration officer, Brian Fotheringham, interviewed him but was unable to confirm his suspicion that Denton was here on somebody else's passport. On 12 May 1994, however, Denton was again arrested in the course of a raid and charged with possession of drugs with intent to supply and possessing an offensive weapon. At interview his true identity was established. He was, it turned out, a man with a record of violent crime in Jamaica who had served a long sentence there for armed robbery; and it later emerged that this might not be all. It followed also that he had no right to be in the United Kingdom.
Brian Fotheringham, who, albeit he was an immigration officer, was attached to a special operations unit at Scotland Yard, arranged for Denton to become a police informer. Within three days or so of his arrest Denton was bailed by or with the agreement of the police and released from detention by Fotheringham by way of temporary admission to the United Kingdom. The drug charges were dropped and in due course a plea of guilty to possessing an offensive weapon (not insignificantly, it was a knife) was visited with a fine of £100.
From June 1994, in return for payment, Denton provided Fotheringham, DC Barker and DS Bayes, his handlers, with important information on Yardie activity. Then, in December 1994, Denton was arrested on a rape charge. The charge was dropped just over a month later: subsequently Denton claimed that this was the work of his handlers; the handlers denied it.
Three days after the arrest which led to his becoming an informer, Denton had made a claim for asylum, admitting (or asserting) that he had committed a number of murders as a gangster in Kingston during the 1980s and claiming that his activities had been politically motivated. It is a logical inference that the application was made at Fotheringham's instigation. In December 1994 a letter of refusal was drawn up by the Home Office's immigration and nationality department. It was not, however, served until the end of the following year, 1995. As Mantell LJ commented in giving the judgment of the Court of Appeal (Criminal Division) (see paragraph 6 below), the inference that the letter of refusal was held back deliberately in order to prolong Denton's usefulness as an informer is difficult to resist. Mantell LJ noted in particular that it was not until November 1995 that Fotheringham "lifted the embargo" on the letter.
It was in this period of arranged liberty that Zena Laws was murdered by Denton. A young woman with 2 children, she was drug and alcohol dependent. She was known to Denton as a friend of Samantha Thompson, the woman with whom he had lived throughout his time in the United Kingdom. Zena Laws was found sexually assaulted and savagely stabbed to death in April 1995. Denton was arrested on 9 May 1995, interviewed and charged; but for a reason about which the Court of Appeal (Criminal Division) was able only to speculate, the proceedings were discontinued and Denton released from custody on 1 November 1995. He resumed contact with his handlers. But the murder investigation was resumed and on 23 December he was rearrested and again charged with the murder of Zena Laws. It was at the end of that month that the year-old letter refusing asylum was finally served on him. At trial he was convicted of murder and on 19 July 1996 sentenced to life imprisonment. On 15 February 2002, following an extension of time, the Court of Appeal (Criminal Division) dismissed his appeal against conviction.
The proceedings
Effectively all the facts set out above are taken not from the particulars of claim but from the judgment of the criminal division of this court. From this point, however, it will be appropriate to refer to the case pleaded on the claimants' behalf, since the issue for us is whether it discloses a viable claim in law.
In the Central London County Court on 26 August 1999 His Honour Judge Hornby acceded to an application made jointly by the first and second defendants to strike out the claim on the ground that, accepting as established the facts asserted in it, it could nevertheless not succeed. I would like, if I may, to pay tribute to the quality of his extempore judgment. It was delivered, however, at a time when the Three Rivers case, to which I will be coming, was on its way from this court to the House of Lords. His conclusion, in the then state of the law, was that there was insufficient proximity between the victim and the alleged wrongdoers, since the risk they were alleged to have created by arranging for the liberation of a known killer was a risk to the public at large and not specifically to his eventual victim. It is now common ground, in the light of the decision of the House of Lords, that this is not the test and that it is to their Lordships' speeches that it is necessary to look for the law. But the respondents submit that much of the appropriate reasoning and the correct outcome remain the same.
The law
The tort of misfeasance in public office originates, at least so far as the law reports take us, in electoral corruption cases beginning in the late seventeenth century. The right to vote was then a property right, and subsequent cases have likewise typically concerned deprivation of property. There is no reported case where the consequence of the misfeasance has been personal injury or death. But while this may, as counsel for the Commissioner suggests, be indicative of the historical nature of the tort it cannot be definitive of it. Moreover, no reported decision deals frontally with the question of law which we have to decide. The nature of the tort, however, is now authoritatively described in the decision of the House of Lords in the Three Rivers case, and it is from this source that the answer to the present appeal has to be derived.
Three Rivers District Council v Governor and Company of the Bank of England [2000] 2 WLR 1220 concerned the alleged liability of the Bank of England for derelictions of duty resulting in the loss by many depositors, the claimant district council among them, of money placed with the fraudulent Bank of Credit and Commerce International. The conclusion of the House, which was unanimous though not expressed in unitary form, is encapsulated in the headnote:
"Held… that the tort of misfeasance in public office involved an element of bad faith and arose when a public officer exercised his power specifically intending to injure the plaintiff, or when he acted in the knowledge of, or with reckless indifference to, the illegality of his act and in the knowledge of, or with reckless indifference to, the probability of causing injury to the plaintiff or persons of a class of which the plaintiff was a member; that subjective recklessness in the sense of not caring whether the act was illegal or whether the consequences happened was sufficient; …that only losses which had been foreseen by the public officer as a probable consequence of his act were recoverable; and that such a formulation of the tort struck the appropriate balance between providing adequate protection for the public and protecting public officers from unmeritorious claims."
The leading speech, with which the other four members of the House expressly concurred, was delivered by Lord Steyn. For present purposes the following passages from the speech of Lord Steyn are material:
"The rationale of the tort is that in a legal system based on the rule of law executive or administrative power 'may be exercised only for the public good' and not for ulterior and improper purposes…" (1230).
Where the malice is untargeted –
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