Darker and Others v Chief Constable of the West Midlands Police

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD HOPE OF CRAIGHEAD,LORD MACKAY OF CLASHFERN,LORD COOKE OF THORNDON,LORD CLYDE,LORD HUTTON
Judgment Date27 July 2000
Judgment citation (vLex)[2000] UKHL J0727-1
Date27 July 2000

[2000] UKHL J0727-1

HOUSE OF LORDS

Lord Hope of Craighead

Lord Mackay of Clashfern

Lord Cooke of Thorndon

Lord Clyde

Lord Hutton

Darker

(Personal Representative of David Stanley Docker (Deceased) and others (A.P.)

(Appellants)

(Formerly Head and others (A.P.)

(Appellants))
and
Chief Constable of the West Midlands Police
(Respondent)
LORD HOPE OF CRAIGHEAD

My Lords,

1

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

2

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

3

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

4

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

"The public policy purposes underlying the immunity are essentially two-fold. First, per Fry, L.J. in Munster v. Lamb (1883) 11 Q.B.D. 588:

'… to protect persons acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions.'

Second, as Lord Wilberforce said in Roy v. Prior [1971] A. C. 470 at 480:

'… to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again."

5

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

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

6

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

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

7

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

8

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

9

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

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