Roy v Prior

In June of 1968 a Mr. Advani, a postman, was charged with stealing mailbags. He was tried at the Central Criminal Court before Judge McKinnon. He was in receipt of legal aid. His solicitor was Mr. Prior. Mr. Advani's defence was that he had taken drugs which had clouded his mind and he was not responsible for his actions. On the advice of Counsel, the solicitor, Mr. Prior, issued a witness summons requiring the attendance of a doctor - Dr Premananda Roy - to give evidence for the defence. The solicitor issued the witness subpoena on the 27th May, 1968. He tried to serve it on Dr. Roy, but he failed. He took the view that Dr. Roy was evading service. So at the trial Mr. Prior instructed Counsel to apply to the Judge for the issue of a Bench warrant so as to compel Dr. Roy to attend. In support of the application Mr. Prior went into the witness-box. He gave evidence to the effect that the witness summons had been issued; that he had tried to serve it on Dr. Roy, but that Dr. Roy was evading service. Whereupon the Judge at the trial issued a Bench warrant. Dr. Roy was arrested and brought to the Court to give evidence. He did indeed give evidence, but his evidence did not help Mr. Advani's defence. He said that the drug would not cloud his mind, but would send him to sleep. The Jury found Mr. Advani guilty. He was sentenced to two years.

Now Dr. Roy has brought an action against the solicitor, Mr. Prior. He issued the writ himself and he delivered a statement of claim claiming damages against Mr. Prior, because he was the cause of his arrest and being brought forcibly to Court to give evidence. He alleges that Mr. Prior, the solicitor, acted maliciously and without reasonable or probable cause. The solicitor, Mr. Prior, asks the Court to strike out the statement of claim on the ground that it does not disclose any reasonable cause of action.

So far as the evidence of Mr. Prior is concerned, it is plain that he cannot be sued for it. Even if it be assumed that the allegations against him are true - which is a very large assumption - no action lies. It is settled law that, if awitness knowingly and maliciously tells untruths in the witness box, and as a result an innocent person is imprisoned, nevertheless no action lies against that witness. (See ( Hargreaves v. Bretherton and anr. 1959 1 Q.B. 45), and Rondel v. Worsley (1969 1 A.C.) at pages 251 and 252 by Lord Morris of Borth-y-Gest, and at page 269 by Lord Pearce. The reason lies in public policy. Witnesses must be able to give their evidence without fear of the consequences. They might be deterred from doing 30 if they were at risk of being sued for what they said. So the law gives a witness the cloak of absolute immunity from suit. This applies not only to statements made by a witness in the box, but also to statements made whilst he is giving his proof to his solicitor beforehand. The reason is because the protection given to the witness in the box would be useless to him if it could be got round by an action against him in respect of his proof. See ( Watson v. M'Ewan 1905 A.C. 480). So also when a police officer makes a report to the Director of Public Prosecutions, that also is absolutely protected (see ( Marrinan v. Vibart 1963 1 Q.B. 234, and 1963 1 Q.B. 528). Whatever the form of action, defamation, conspiracy, negligence, or anything else, the Court, as a matter of high policy, holds that the witness is protected. No action lies against him.

Now we come to the one point which has made me pause....