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Rees and Ors v Commissioner of Police for the Metropolis [2018] EWCA Civ 1587

11 July 2018
The Court of Appeal overturned a ruling that a police officer and police force vicariously, are not deemed a prosecutor in circumstances where the charging decision was made by the CPS but where the investigating officer knowingly manipulated the evidence placed before them.

Background

Daniel Morgan was murdered outside a South East London pub in March 1987 after being struck repeatedly in the head with an axe. The appellants, and a man called Jimmy Cook, were charged with the murder. 

There were no eyewitnesses to the murder.  The prosecution relied heavily on the evidence of a man called Gary Eaton who claimed to have been present at the scene shortly after the attack. He said, in witness statements given in 2007, that he followed Garry Vian from the pub into the car park and saw Jimmy Cook and Glenn Vian in a car close to where the body of Morgan lay. 

Criminal Proceedings

The appellants and Cook were arrested on suspicion of murder on 21 April 2008 and charged on 23 April. They remained in custody until 3 March 2010, when Maddison J refused to extend the custody time limits and made a finding that there had been a significant lack of due diligence in the prosecution's disclosure. 

A number of pre-trial applications were made in the case, one of which to exclude Eaton's evidence was successful.  The case against Cook was withdrawn shortly after and on 11 March 2011, Counsel for the Crown informed Maddison J of their decision to discontinue proceedings against the remaining defendants.  No evidence was offered against them.  

The crucial issue in refusing Eaton's evidence was that the senior investigating officer, Detective Chief Superintendent Cook was found to have compromised the de-briefing of Eaton by making and receiving several unauthorised direct contacts with him in the period leading up to him making his statement in contravention of express procedures of keeping separate debriefing officers and the investigation team.  During that period, Eaton had moved from not being willing to name the three appellants to naming them and giving a graphic yet inaccurate description of the murder scene.  Eaton was also known to have significant mental health problems.    

Civil Proceedings

The appellants brought an action in tort against the MPC for malicious prosecution and malfeasance in public office.

Malicious Prosecution

The MPC argued successfully that DCS Cook could not be defined as a prosecutor in this matter and that the responsibility lay with the Crown Prosecution Service.  The judge also held that there was reasonable and probable cause to prosecute and that DCS Cook had not acted maliciously.  Objectively, the evidence other than that of Eaton's was found to be sufficient to provide a reasonable prospect of conviction and there was no evidence that DCS Cook did not believe that such evidence provided reasonable and probable grounds for prosecution.

Misfeasance in Public Office

It was found that DCS Cook was exercising a public power and that he intentionally perverted the course of justice realising that it would probably injure the appellants.  However, on the balance of probabilities prosecuting counsel and the CPS would have decided to prosecute even in the absence of Eaton's evidence and thus there was no loss suffered by the appellants. 

The Appeal

Malicious Prosecution

On appeal it was found that:

  • DCS Cook deliberately manipulated the CPS into taking a course of action that they would otherwise not have taken and, as such, denied the CPS the ability to exercise independent judgment.  DCS Cook was undoubtedly a prosecutor.
  • DCS Cook could not have believed that the case he presented to the CPS was a 'proper one' or 'fit to be tried'. There was no evidence that he gave any thought to whether there was a fit or proper case in the absence of Eaton's evidence and therefore no subjective evidence that he believed there to be reasonable and probable cause. 
  • Simply believing a person is guilty of an offence is not enough to prevent the prosecution from being malicious. 

Misfeasance in Public Office

The only finding appealed was whether the appellants had suffered a loss. A distinction was made between continuing the prosecution after the evidence of Eaton was excluded and whether one would have been initiated in the first place if DCS Cook's wrongdoing had of been known. It was found that, given the lack of alternative evidence available, the prosecution would not have been initiated and, as such, the appellants suffered a loss under both the tort of malicious prosecution and malfeasance in public office.  They were therefore entitled to damages. 

Further Reading