Elguzouli-Daf v Commissioner of Police of the Metropolis; McBrearty v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEYN,LORD JUSTICE ROSE,LORD JUSTICE MORRITT |
| Judgment Date | 16 November 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J1116-6 |
| Docket Number | QBENI 94/0152/E |
| Court | Court of Appeal (Civil Division) |
| Date | 16 November 1994 |
[1994] EWCA Civ J1116-6
(Mr Patrick Bennett Qc (Deputy Judge)
Before Lord Justice Steyn Lord Justice Rose Lord Justice Morritt
QBENI 94/0152/E
QBENI 94/0152/E
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
MR M SUPPERSTONE QC and MR D JANNER (Instructed by Stephen Fidler & Co., London, WC1X 8TX) appeared on behalf of the Appellants/Osama Elguzouli-Daf.
MR N BLAKE QC (Instructed by B M Birnberg & Co. London, NW1 7HJ) appeared on behalf of the Appellant/ McBrearty.
MR S RICHARDS and MR I BURNETT (Instructed by the Treasury Solicitor, Metropolitan Police Legal Dept and CPS) appeared on behalf of the Respondents.
These appeals raise the question of law whether the Crown Prosecution Service ("the CPS") owes a duty of care to those it is prosecuting. We are asked to consider this question in the context of an order made on 8 October 1993 by Mr P. Bennett Q.C., a Deputy High Court Judge, striking out statements of claim in two actions brought by plaintiffs against the CPS. In both actions the plaintiffs alleged that the CPS caused a prolongation of their detention by negligence. The judge ruled that under Order 18, rule 19(1)(a) there was no sustainable cause of action in either case against the CPS.
The action brought by Mr McBrearty
On 22 September 1989 a bomb planted by the I.R.A. exploded at the Barracks of the Royal Marine Band at Deal, killing eleven people. On 17 September Mr McBrearty, a 35 year old man from Northern Ireland, had travelled to London. On 5 October 1989 he was arrested by police officers. On the same day swabs were taken from his hands. The swabs were sent for forensic analysis. On 8 October 1989 a forensic scientist claimed to have discovered traces of an explosive residue in the swabs. The police were informed of this finding. In police interviews Mr McBrearty said that, if explosive residues were found on the swabs taken from his hands, such residues must have been present through innocent contamination. On 12 October 1989 the police charged Mr McBrearty with an offence contrary to the Explosive Substances Act 1883, the thrust of the charge being that Mr McBrearty had handled semtex explosives. On 12 October the CPS undertook the prosecution of Mr McBrearty. On 20 December 1989 a judge refused him bail. On 8 January 1990, the CPS offered no evidence against Mr McBrearty at the committal proceedings, giving as the reason for that decision that the possibility of innocent contamination could not be excluded. Pursuant to section 6 of the Magistrates Court Act 1980 he was discharged by the magistrates. In the result he was detained for 85 days before the prosecution was abandoned.
Mr McBrearty sued the Ministry of Defence, the CPS and the Commissioner of Police for the Metropolis. The claim against the Ministry of Defence was struck out. There is no appeal against this ruling. The claim against the Police was withdrawn. Only the sustainability of Mr McBrearty's claim against the CPS was in issue before the judge and before us.
The statement of claim, so far as it is relevant to the case against the CPS, alleged breach of a duty of care, having regard to advice "that ought to have been given as to whether any prosecution should be continued". The particulars of negligence against the CPS were as follows:
"i)failing to clarify from the scientists employed by the First Defendant on or before 12 October 1989 or so soon thereafter as was reasonably practical that the findings of explosive traces on hand swabs taken from the Plaintiff were not inconsistent with innocent contamination;
ii)failing to advise the Plaintiff or the court between 12 October and 8 January 1990 that the explosives evidence against the Plaintiff was consistent with innocent contamination.
iii)failing to discontinue the prosecution on the grounds of insufficiency of evidence on the 12 October 1989 or so soon as practical thereafter."
The gravamen of Mr McBrearty's case in negligence against the CPS is that it was always apparent that innocent contamination could not be excluded. In these circumstances, he says, it should not have taken 85 days to realize that the prosecution was bound to fail. He alleges that he suffered loss and damage in that he suffered anxiety and distress as a result of such detention. At the hearing at first instance an alternative claim by Mr McBrearty for malicious prosecution against the CPS was withdrawn.
The action brought by Mr Elguzouli —Daf.
In the early hours of 30 September 1992 Linda Butler was raped. At 2.45 a.m. on 30 September Mr Elguzouli-Daf, a 30 year old man, was arrested in connection with the attack on the victim. He was detained. At 11.36 p.m. on the same day the police charged him with two offences, namely rape and buggery of Linda Butler. Eventually, forensic examination established that semen found on a swab taken from the victim's vagina belonged to two men, neither of whom was Mr Elguzouli-Daf. On 21 October 1992 the CPS notified him that the charges were discontinued under section 23 of the Prosecution of Offences Act 1985. In the result he spent 22 days in custody before the CPS abandoned the prosecution.
Mr Elguzouli-Daf sued the police and the CPS. The police did not apply to strike out that part of the statement of claim which related to the case against the police. At first instance, and before us, only the sustainability of the case against the CPS was in issue.
Mr Elguzouli-Daf's claim against the CPS is brought in negligence. The general allegation against the CPS in his amended statement of claim was as follows:
"The Second Defendant owed the Plaintiff a duty of care in performing and communication of an opinion that might lead to a Prosecution, and in any advice given or that ought to have been given as to whether any prosecution should be continued by reason of matters set out below the Second Defendant was in breach of the said duty."
The particulars of negligence read as follows:
"(a)Failing to clarify from forensic scientists on 30 September 1992 or so soon thereafter as was reasonably practicable and in any event not as late as the 21st October 1992, that a swab taken from Miss Butler's vagina revealed that semen from two males present, neither of whom were the Plaintiff's……..
(b)Failing to advise the Plaintiff or the Court between the 1st October and 21 October 1992 that the forensic evidence proved negative against the Plaintiff.
(c)Failing to discontinue the proceedings before the 21st October 1992 when the result of the said forensic test should and could have been known to the Second Defendant."
Notwithstanding paragraph (b), it was not argued that the CPS had the forensic test result, which conclusively exculpated Mr Elguzouli-Daf, before 21 October. Helpfully, Mr Supperstone, Q.C., who appeared for Mr Elguzouli-Daf, explained that the essence of the claim is "that the CPS behaved negligently in acting without reasonable diligence in obtaining and/or processing and/or communicating the results of the tests".
The proceedings at first instance:
The CPS took out summonses to strike out the statements of claim in both actions so far as they asserted claims in negligence against the CPS. It was common ground that the actions gave rise to a single question of law, namely whether the CPS owes a duty of care to those it is prosecuting. In a robust judgment the Deputy High Court Judge held that no such duty exists. He said:
"I deal with the matter first of all by way of principle. It seems to me that the consequences of holding that such a duty exists would give rise to a wholly undesirable situation. First, it would spawn a plethora of litigation funded from an already strained public purse. It requires little stretch of imagination to envisage what would happen if such a duty of care was imposed. Secondly, it would involve time-consuming, expensive and lengthy investigation of each and every act of the prosecution…….Thirdly, in my view, such a duty could form an undesirable fetter on the free exercise of their judgment by those concerned with the prosecution process, whether by advice or action: "the looking over one's shoulder syndrome". Fourthly, there already exist remedies available which hithertofore have provided adequate protection for the public. There have been the availability of the tort of malicious prosecution which has stood the test of time, and more recently a remedy in damages in respect of the unsatisfactory conduct of representatives in criminal proceedings: see section 111 of the Courts and Legal services Act 1990."
Here I pause to observe that the wasted costs procedure under section 19A of the Prosecution of Offences Act 1985, as amended by section 111 of the Courts and Legal Services Act 1990, is demonstrably not "a remedy in damages".
The judge than turned to the effect of the decided cases. He declined to follow a first instance decision of Tudor Evans J in Welsh v. The Chief Constable of Merseyside Police [1993] 1 AER 692. He said that the case was wrongly decided. For the rest the judge contented himself by annexing to his judgment four skeleton arguments. And he adopted and repeated as part of his judgment the skeleton argument filed on behalf of the CPS and the Ministry of Defence. That was a curious course to adopt. For my part...
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