PROVING THINGS 117: A DISHONEST POLICE OFFICER IS “MALICIOUS”: PROVING A CASE FOR MALICIOUS PROSECUTION AND MISFEASANCE IN PUBLIC OFFICE

In the judgment in Rees & Ors v Commissioner of Police for the Metropolis [2018] EWCA Civ 1587 the Court of Appeal overturned a finding that a police force was not liable for malicious prosecution and misfeasance in public office because the errant officer “believed” in the guilt of the accused.

To say that DCS Cook, a prosecutor guilty of perverting the course of justice by creating false evidence against the appellants, was, on account of his belief in their guilt, not acting maliciously, is rather like saying that Robin Hood was not guilty of theft. One understands the motivation in each case, but any seeming endorsement of such dishonest behaviour, particularly within the police force, leads as McCombe LJ puts it, to a (serious and unacceptable) “negation of the rule of law.”

THE CASE”

The three claimants had been charged with a murder than took place in 1987.  They were in custody for a considerable period before the criminal case against them was discontinued.  The bulk of the case against them came from the evidence of one witness.

CONTAMINATION OF THE EVIDENCE IN THE CRIMINAL CASE

The trial judge found that a police officer, DCS Cook, had contaminated the evidence of the “key witness”.

    1. As I have said, the statements made by Eaton were a major plank of the Crown case against the appellants. I will return below to the extent to which he implicated each appellant, according to the findings of Mitting J. The salient feature of the present proceedings, however, and the salient reason why Maddison J decided to exclude Eaton’s evidence from the appellants’ prospective trial, was that the Senior Investigating Officer (“SIO”), Detective Chief Superintendent David Cook (“DCS Cook”) was found to have compromised the de-briefing of Eaton by making and receiving an extensive number of unauthorised direct contacts with Eaton in the period leading up to Eaton’s making of his statements, in contravention of express procedures for keeping a “sterile corridor” between the debriefing officers and the investigation team. In the course of the debriefing process, Eaton moved from being unwilling to name directly any of the participants in the murder to naming the three appellants and giving his graphic (as it turned out obviously inaccurate) description of the murder scene.”

THE CONCLUSION OF THE TRIAL JUDGE

The trial judge found that DCS Cook had committed the crime of doing an act tending to and intending to pervert the course of justice.

“187. [I]t is inescapable that Cook did deliberately breach both guidelines and express instructions from his superiors which he knew would be likely to undermine the integrity of the evidence of the potential witness Eaton. Further, what he did put the admissibility of the evidence of Eaton at risk, as in fact happened. …[H]e contaminated the source of justice. He knew what he was doing and did it deliberately. He can therefore be taken to have intended to do it. The ingredients of the crime were present.

However the trial judge found

  • DCS Cooke was not a prosecutor.
  • DCS Cooke was not malicious because, “…even if his methods are open to criticism, his motive was not: it was to bring those he believed to be complicit in the Morgan murder…to justice”: paragraph 179 of the judgment.
  • There would have been a prosecution anyway.
  • That there was misfeasance in public office but the claimants had not suffered any damage.

THE JUDGMENT IN THE COURT OF APPEAL

The Court of Appeal overturned the trial judge’s conclusions as to the law in most respects, finding for the claimants. In relation to the argument that the claimants would have been prosecuted in any event. Lord Justice McCombe observed:-

  1. I believe that, from what I have said already, it can be seen that I respectfully disagree with these reasons. For my part, I am prepared to accept that there was admissible evidence, over and above that of Eaton, which might just have passed the test of being a case to answer by the appellants. However, in the absence of evidence from the sources mentioned, we are in as good a position as the judge to determine whether (on the balance of probabilities) a prosecution would have been brought on the date it was (23 April 2008), if it was known a) that Eaton’s evidence would not have been admissible at trial and b) that the reason why it would not have been admissible was that the SIO in the case had obtained that evidence by committing the crime of doing an act tending to and intending to pervert the course of justice.
  2. As I have said elsewhere already, I find that it is inconceivable that any properly informed prosecutor, or counsel advising him or her, would have countenanced the preferring of charges on the relevant date based, as these were, on the report of an SIO who had procured a significant plank of the proposed Crown case by committing the crime which the judge held that DCS Cook had committed. Such a prosecutor would, I am convinced, have wanted DCS Cook, and any influence deriving from him, to be cleared from the scene and a fresh untainted assessment made of the remaining evidence before considering again whether a prosecution should be brought. Given the circumstances, the prosecutor would have wanted to be assured that the taint of DCS Cook’s conduct had not otherwise affected the investigation. The case would have had to be assessed from an unaffected point of view.
  3. Further, the prosecutor would have noted that much of the remaining evidence had previously been rejected as giving sufficient ground for a prosecution and that some of the other evidence later obtained had come from witnesses of highly doubtful credibility. In reaching a decision, in my judgment, the technical admissibility of the other evidence would only have been a part of the judgment call for the CPS. There would have been other issues, as I have sought to explain. As Mr Simblet submitted, the learned judge focused solely on the technical admissibility of the remaining evidence at the date of the prosecution decision (without Eaton) but without taking into account what Mr Simblet (I think accurately) described as the “stench” that would have been given off by the apparent results of the investigation by DCS Cook’s actions while at the very top of the investigation team.
  4. I do not ignore the fact that the prosecution was not abandoned immediately after Maddison J had ruled against the admissibility of Eaton’s evidence. However, continuing with a long running prosecution is one thing and deciding to initiate one is another. Maddison J’s reasoned judgment on Eaton’s evidence was not delivered until a year after his decision to exclude it was communicated to the parties. His ruling was given on 15 February 2010 but his judgment was only handed down on 25 March 2011, shortly after the Crown had discontinued the prosecution. In February 2010, it may have been thought that there was just enough, as I put it to counsel in argument, “to keep the damaged aircraft in the air sufficiently long enough to clear a hedge”, but that did not mean that the aircraft would have taken off at all if the pilot had realised that it was so seriously damaged already when it was still sitting on the airfield before take-off.

THE JUDGMENT OF LADY JUSTICE KING

  1. I would endorse, without reservation, the conclusion of McCombe LJ that DCS Cook was a prosecutor who acted maliciously. McCombe LJ observes that any other finding would be a “negation of the rule of law” [91], and Coulson LJ that it would be “contrary to basic principle”. I agree that that is undoubtedly the case and, in my view, any other conclusion would, in the eyes of the general public, defy common sense.
  2. This is a case where no one has been tried or convicted of a particularly brutal murder. It is of importance that where serious and damaging findings of malicious prosecution and of misfeasance in public office are sought against the MPC in such a case, that the public can understand and appreciate the logic of the outcome. With respect to this very experienced judge, the outcome which he reached namely, that although acting corruptly DCS Cook was not also acting maliciously, may well appear to be counterintuitive to any ordinary member of the public.
  3. To say that DCS Cook, a prosecutor guilty of perverting the course of justice by creating false evidence against the appellants, was, on account of his belief in their guilt, not acting maliciously, is rather like saying that Robin Hood was not guilty of theft. One understands the motivation in each case, but any seeming endorsement of such dishonest behaviour, particularly within the police force, leads as McCombe LJ puts it, to a (serious and unacceptable) “negation of the rule of law”.

THE JUDGMENT OF LORD JUSTICE COULSON: THE CPS SHOULD CONSIDER ITS POSITION ON DISCLOSURE

    1. I agree that, for the reasons set out in detail by McCombe LJ, this appeal should be allowed. I wanted to add some words of my own because I am conscious of both the expertise of the judge at first instance and the careful judgment which he produced, from which we are now departing. However, I am satisfied that this court is not reconsidering the fact-finding exercise already carried out by Mitting J: rather, it is correcting his errors of principle and then, with the right approach in mind, addressing the facts which he set out in his judgment.
    2. I consider that, in accordance with the authorities, DCS Cook was a prosecutor: paragraphs 55-58 of McCombe LJ’s analysis admit of no other conclusion. Equally, I am in no doubt that DCS Cook acted maliciously: as McCombe LJ notes at paragraph 91, any other finding, on the facts of this case, would be a negation of the rule of law. It would be contrary to basic principle to find, as the judge did, that a senior policeman can pervert the course of justice to create false evidence against the appellants, but not be guilty of malice simply because he personally believed them to be guilty of Daniel Morgan’s murder. That would amount to an endorsement of DCS Cook’s criminal conduct and his view that the ends justified the means, which I emphatically reject.
    3. Furthermore, the finding of malice seems to me to make it impossible for this court to reach any conclusion (on the facts as found by the judge) other than that the prosecutor – in this case DCS Cook – did not have the necessary subjective belief that there was RPC. The appellants made detailed submissions to the effect that, not only could the respondent not show subjective RPC, but that this was not an element of the case that the respondent had ever properly grappled with. They said that, in consequence, they won on causation. Mr Johnson QC did not address that in his submissions. In my view, for the reasons summarised by McCombe LJ at paragraph 75, this means that, regardless of the position in respect of objective RPC, the appeal must succeed.
    4. There is however a fourth difficulty for the respondent which, in my view, is also fatal to the respondent’s case. That concerns the inter-relationship between DCS Cook’s wrongful acts and the evidence of Eaton. The criticality of Eaton’s evidence can be summarised as follows:
i) Before Operation Abelard II, there was no reasonable and probable cause to prosecute the appellants. That was why they had not been prosecuted. As a result of Abelard II, it was decided that there was sufficient evidence to prosecute them.
ii) The report prepared by Beswick about Operation Abelard II said that there was “new and compelling” evidence to justify prosecution (Judgment, paragraph 114). That evidence was from Ward and Eaton. However, the report expressly said that Ward’s evidence “in isolation was unlikely to be sufficient to prosecute this case” (Judgment, paragraph 115).
iii) Accordingly, on the analysis in Mitting J’s judgment, the critical element in the decision to prosecute the appellants after so long was the new evidence of Eaton.
iv) However, as DCS Cook knew, Eaton’s evidence was entirely contaminated by his unlawful actions. That was subsequently confirmed when Eaton’s evidence was ruled by Maddison J to be inadmissible.
v) On one view, therefore, the absence of Eaton’s evidence removed the critical element in the decision to prosecute in 2008, which in turn meant that there was no RPC.
  1. But in my view, the analysis cannot stop there. Although Mitting J rightly said that, for the purposes of RPC and causation, he had to assume that Eaton’s evidence had never been available (see paragraphs 158 and 191 of the Judgment), that was only half the exercise he was obliged to do. In my view, he had to go on and ask himself whether the criminal proceedings would have been commenced against the appellants in circumstances where, not only was Eaton’s evidence unavailable, but where it was also known that his “new and compelling” evidence had only been obtained through the criminal conduct of the Senior Investigating Officer. In other words, it was insufficient for the judge merely to subtract Eaton’s evidence from the equation; he also had to consider the contaminating effect of DCS Cook’s criminal conduct, across the case as a whole, when deciding whether or not the appellants would have been prosecuted.
  2. That was not a question that the judge asked himself. If he had done so, given our views on malice and subjective belief, and given all the circumstances of this case, I consider that he would inevitably have concluded that there was no RPC, and that therefore both the malicious prosecution case and the misfeasance case (which only failed before Mitting J on causation) would have succeeded.
  3. There is one final point that I would wish to make. The key question with which both Mitting J and this court have wrestled was whether or not, absent Eaton and the actions of DCS Cook, there was the necessary RPC. Considerable court and judicial resources have been expended on endeavouring to answer this question: the original trial took 3 weeks, and the appeal a full one and a half days, involving 6 counsel, including 2 QCs. And yet it is likely that the answer to that very question was contained in the contemporaneous documents relating to the original decision to charge, for which the CPS did not waive privilege.
  4. I accept that the CPS are entitled not to waive privilege for such documents and we have been scrupulous to avoid drawing any adverse inference at all from their absence, even though this has allowed the appellants to submit that the CPS and/or police have a policy of disclosing the charge documents when it helps them, and not when it does not. That submission was based on the fact that, in the similar case of Mouncher v Chief Constable of South Wales [2016] EWHC 1367 (QB), privilege in this same class of documents was waived.
  5. It seems to me that, in circumstances where the funding for both the Court Service and the CPS comes out of the same MoJ budget, and at a time when budgetary constraints within the MoJ are all-pervasive, it is an obvious waste of valuable resources for courts to spend time trying to answer complex hypothetical questions without sight of the documents that are likely to contain the answers. This issue needs to be considered at the highest level of the CPS: I am not satisfied that its consequences have been fully grasped by those responsible for defending this (and other similar) claims.