Jonathan Rees v Commissioner of Police of the Metropolis

Hearing date: 10 th December 2020

Approved Judgment

Introduction

This is an appeal by the claimant, Jonathan Rees, against an assessment of damages (including aggravated and exemplary damages) in a total sum of £155,000. The claim for damages was based on the claimant's incarceration in prison in circumstances of (as was subsequently established) malicious prosecution and misfeasance in public office.

There are two grounds of appeal, for which leave was given by Males LJ on 16 December 2019. The first is that the award was too low, in particular with regard to the element reflecting loss of liberty. The second is that the judge erred in failing to award interest on the basic and aggravated damages. The respondent cross-appeals, by leave given by this court at the hearing, asserting that an award of exemplary damages was not justified or, if it was, that the award made in that respect by the judge was too high.

The appellant was represented before us by Mr David Lemer. The respondent was represented before us by Mr Jason Beer QC and Ms Charlotte Ventham. The arguments, both written and oral, were excellent.

Background facts

The background facts are very striking. They are conveniently summarised by the judge, Cheema-Grubb J, at the outset of her judgment handed down on 31 July 2019, [2019] EWHC 2339 (QB), and are as follows. At that stage, I might add, there were three claimants: the appellant, Glenn Vian and Garry Vian.

In summary, in April 2008 the claimants had been charged with murder following the investigation of an alleged contract killing, of considerable notoriety, in a pub car park in South London on 10 March 1987. The high-profile case against them reached the Central Criminal Court. However, in February 2010 Maddison J held that the evidence of a key prosecution witness, Gary Eaton, should be excluded. The reason was that a high-ranking police officer, Detective Chief Superintendent David Cook, had compromised the integrity of the evidence which 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 that 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 subsequently issued claims in the High Court for damages. After a preliminary trial on the issue of liability Mitting J dismissed the action: Rees and Others v Commissioner of Police for the Metropolis[2017] EWHC 273 (QB). His detailed factual conclusions, themselves to a degree predicated on the findings and decision of Maddison J, were on appeal in that case adopted by the Court of Appeal. The central points on the appeal were whether the limited but decisive conclusions in favour of the defendant could be sustained. First, 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, had Mitting J been right to hold that the defendant was not liable to compensate the claimants because they would have been prosecuted by the Crown Prosecution Service on other evidence.

The claimants' appeal succeeded: [2018] EWCA Civ 1587. 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 of Appeal 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: and that was 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 sufficient 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 the 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.

I note that the murder itself had been committed as long ago as 10 March 1987 and that the appellant was initially arrested shortly thereafter, and subsequently re-arrested, but was released without charge. He was, however, again arrested on suspicion of murder on 21 April 2008 and was detained until charged on 23 April 2008. He was remanded in custody until 3 March 2010, when he was released from custody on restrictive bail conditions. On 11 March 2011, in the circumstances outlined above, the prosecution offered no evidence against the appellant and the other two claimants, who had also been charged with the murder.

The proceedings for malicious prosecution and misfeasance in public office were commenced on 10 March 2014. It was those proceedings, as I have said, which resulted in the decision on liability of Mitting J, which was reversed by the Court of Appeal on 18 July 2018. This then led to the hearing on the quantum of damages to be awarded to the claimants.

It was accepted before Cheema-Grubb J that the arrest on 21 April 2008 and detention prior to charge were lawful. Thereafter the period of detention was agreed to be 682 days (between 23 April 2008 and 3 March 2010). For part of that time – 5 months – the appellant had been detained as a Category A prisoner. It may here also be noted that the appellant, as had the other two claimants, had been in custody before. He himself had previously received a sentence of seven years imprisonment for conspiring to pervert the course of justice.

The three claimants had sought damages, by way of basic award, for distress, humiliation and anxiety and also for loss of liberty. The claimants further sought aggravated and exemplary damages. On behalf of the appellant and the second claimant, the figure proposed to the judge for distress etc. was in the range of £50,000 – £60,000 and for loss of liberty of £100,000 to £150,000. Aggravated damages in the range of £80,000 – £100,000 and exemplary damages in the range of £70,000 – £100,000 were also sought. Differing figures were in some respects propounded for the third claimant.

Legal principles

The relevant legal principles for these purposes are reasonably well established. The task for the judge was to apply those principles to the circumstances of this particular case.

The leading authority on damages in the case of false imprisonment and malicious prosecution remains that of Thompson and Hsu v Commissioner of Police of the Metropolis[1998] QB 498.

The Court of Appeal there gave detailed guidance as to how juries are to be instructed in such cases. Among the many important points there made, the following in particular can, for present purposes, be noted:

(1) An analogy with awards in personal injury claims may properly be made: p512 A-D.

(2) An award of exemplary damages may be more difficult to justify where the person responsible for meeting an award of damages (the defendant) is not the wrongdoer but a vicariously liable “employer”: p512 H.

(3) A risk of double-counting, particularly in cases of awards of both aggravated and exemplary damages, should be guarded against: p. 513 A.

(4) In cases of wrongful deprivation of liberty, damages are to be awarded on a progressively reducing scale, because, among other things, a claimant is entitled to have a higher rate of compensation...