Jonathan Rees v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cheema-Grubb DBE |
| Judgment Date | 31 July 2019 |
| Neutral Citation | [2019] EWHC 2120 (Admin) |
| Docket Number | Case No: HQ13X02927 & HQ14X01020 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 July 2019 |
[2019] EWHC 2120 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Cheema-Grubb DBE
Case No: HQ13X02927 & HQ14X01020
Nicholas Bowen QC & David Lemer for the First and Second Claimants
Stephen Simblet for the Third Claimant
Jeremy Johnson QC, Charlotte Ventham & Catrina Hodge for the Defendant
Hearing dates: 15–16 May 2019
Approved Judgment
Introduction
This is a quantum hearing to assess damages to be paid following findings for the claimants by the Court of Appeal on liability for malicious prosecution and misfeasance in public office. The judgment at Rees and Others v Commissioner of Police for the Metropolis [2018] EWCA Civ 1587 sets out the relevant facts and procedural history. I adopt these. Wholesale repetition in this judgment would be superfluous.
In summary, as long ago as April 2008 the claimants were charged with murder following the investigation of an alleged contract killing in a pub car park in south London in March 1987. The high-profile case against them reached the Central Criminal Court but in February 2010 Maddison J held that the evidence of a key prosecution witness Gary Eaton (“Eaton”) would be excluded. The reason was that a high-ranking police officer, Detective Chief Superintendent David Cook (“DCS Cook”), had compromised the integrity of the evidence Eaton proposed to give by initiating or allowing extensive contact with the witness in contravention of express agreements and accepted procedures. During this period Eaton's evidence, initially innocuous, expanded appreciably to include presence at the scene of the killing shortly after its commission together with knowledge of the claimants in the vicinity. Despite the ruling, at first the Crown indicated that the trial was to proceed on other evidence, but in March 2011 the judge was told that the prosecution was to be discontinued. No evidence was offered, and each of the claimants obtained not guilty verdicts.
They issued claims for damages. After a preliminary trial on the issue of liability Mitting J dismissed the action at Rees and Others v Commissioner of Police for the Metropolis [2017] EWHC 273 (QB). His factual conclusions, themselves predicated on the findings and decision of Maddison J, were adopted but his decision was reversed on the law by the Court of Appeal. The central points in the appeal were whether the limited but decisive findings in favour of the defendant could be sustained. Firstly, had Mitting J been right to reject the claim on the basis that although it had been established that DCS Cook's actions regarding Eaton had led to the claimants being prosecuted, the defendant was not liable, vicariously, to compensate them for the tort of malicious prosecution because DCS Cook was not a prosecutor, had not been malicious, and there was reasonable and probable cause to prosecute. Secondly, in respect of misfeasance in public office although DCS Cook was a public officer exercising a public power and he had deliberately perverted the course of justice realising that it would probably cause injury to the claimants, the defendant was not liable to compensate them because they would have been prosecuted by the Crown Prosecution Service on other evidence.
The claimants' appeal succeeded. DCS Cook was the most senior police officer in the case and he presented the evidence to the Crown Prosecution Service for a decision on sufficiency of evidence for charge. He did so, knowing that he had suborned the evidence of Eaton and falsely presented him as an eye-witness to the murder scene. On analysis the remaining evidence was weak and circumstantial and it had been rejected previously as insufficient to provide a realistic prospect of conviction, so it was inconceivable that charges would have been brought without DCS Cook's deliberate manipulation. The independent prosecutor's decision was overborne or perverted by the police officer's actions: DCS Cook was a de facto prosecutor. The Court held that he had been malicious, within the meaning of the relevant authorities, because he could not have believed that the case tainted with the evidence of Eaton was fit to go to a jury and such dishonest pursuit of the case, whether or not DCS Cook himself believed the claimants to be guilty, amounted to deliberately perverting the course of justice: sufficient malice.
As to misfeasance in public office, Mitting J had relied on the initial continuation of the case against the claimants after Maddison J had excluded Eaton's evidence as the basis for concluding that DCS Cook's actions did not cause loss. There was no evidence before the judge to show whether, in fact, charges would have been brought without Eaton's contribution to the case. The Court of Appeal held, on a balance of probabilities, that a prosecution would not have been brought had it been known in April 2008 that Eaton's evidence would not have been admissible at trial because of the actions of the Senior Investigating Officer in the case who had perverted the interests of justice in order to obtain it. Accordingly, there had been loss to each claimant.
The claim
The first two claimants seek damages in the sum of £50,000 to £60,000 by way of a basic award for the harm, by way of mental distress, humiliation and anxiety caused by the malicious prosecution for murder itself. They seek a separate award for their loss of liberty of £100,000 to £150,000 and aggravated damages of £80,000 – £100,000. The third claimant seeks £200,000 for mental distress, humiliation and anxiety caused by the murder charge and his more limited loss of liberty, and aggravated damages of £50,000.
This being a case in which malice has been proved on the part of a senior police officer they also seek aggravated damages and an exceptional award for exemplary damages. The first two claimants seek £70,000 – £100,000 each and the third claimant argues for £90,000.
In extensive written submissions the parties have referred to the leading authorities. The arguments were refined orally for more than a day. The established approach is set out in Thompson and Hsu v Commissioner of Metropolitan Police [1997] EWCA Civ 3083. The Court of Appeal laid down guidelines for directions to a jury on damages in cases where claimants succeeded in claims for false imprisonment and/or malicious prosecution against the police. It was emphasised that the total figure for damages should not exceed what the court considers is fair compensation for the injury which the claimant has in fact suffered. In the two claims then under consideration the arresting officers used considerable force leading to physical injury as well as the humiliation resulting from a forced arrest and detention. Plainly, the circumstances were far removed from the claims in this case and the figures provided are now over twenty years old.
The guideline direction for compensatory damages to be awarded to a person arrested and kept in custody for an hour was £500 and for a day £3,000. The case includes all the warnings to be expected to the effect that these figures are guidelines only and it is to be noted that Thompson itself was ‘a straightforward case’. The court commended an approach which kept a sense of proportion to personal injury cases. For malicious prosecution the damages should start at £2,000; if the prosecution continued for two years, £10,000 would be appropriate. Adjusted for inflation the amounts are roughly doubled so the upper end of the bracket on contemporary figures is agreed at about £20,000.
Where aggravated damages are appropriate they are unlikely to be less than £1,000, or more than twice the basic damages except where those basic damages are modest. The principles governing the award are described thus,
“… where there are aggravating features about the case which would result in the plaintiff not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award. Aggravating features can including humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest or the prosecution which shows that they had behaved in a high handed, insulting, malicious or oppressive manner either in relation to the arrest or imprisonment or in conducting the prosecution.”
Self-evidently the justification for aggravated damages must be something not satisfied by the award of basic damages. The aim remains compensation.
Exemplary damages are an exceptional remedy, awarded only where the basic and aggravated damages together are insufficient to punish the defendant. The potential overlap between the factors which provide justification for both aggravated and exemplary awards require the court to be aware of double-counting. Where exemplary damages are appropriate they are unlikely to be less than £5,000. Conduct must be particularly deserving of condemnation to warrant an award of £25,000 and the absolute maximum should be £50,000. It would be unusual for such damages to be more than three times the basic damages being awarded unless those basic damages are modest. It is a relevant consideration in the award of exemplary damages if they are to be paid out of public money as is the fact that the employer pays the damages rather than the person who has done wrong.
The claimants draw attention to the exceptional nature of this case in multiple respects: the horrific facts of the original murder, the everlasting ‘taint’ borne by the claimants due to the suspicions of a senior police officer and his determined attempt to achieve their convictions, the jeopardy of a murder charge both reputationally and potential life sentences, as...
To continue reading
Request your trial
-
Dr Adilya Rahim v General Medical Council
...responsive argument of 25 October 2021, Ms Hearnden for the GMC referred to a decision of the Divisional Court of R (Kuzmin) v GMC [2019] EWHC 2120 (Admin) in which Hickinbottom LJ (with whom Butcher J agreed) adverted to significant differences between criminal and civil proceedings and h......