Daniel Morgan was killed in a pub car park in March 1987. The subsequent police investigation into his death and resulting prosecutions were the subject matter of claims in malicious prosecution and misfeasance in public office which reached the Court of Appeal and culminated in the recent judgment in (1) Jonathan Rees (2) Glenn Vian (3) Garry Vian v Commissioner of Police of the Metropolis  EWCA Civ 1587.
To establish a claim for malicious prosecution against the police, a claimant must establish five essential elements:
- That the prosecution was terminated in his or her favour
- That the prosecution was instituted or continued by police officers
- That those officers acted without reasonable and probable cause
- That those officers acted maliciously
- That the prosecution caused him or her ‘damage’.
This judgment provides useful guidance to police forces on elements (2) and (4). The dispute related to an allegation that an officer (Cook), in the context of the long running investigation into the murder of Daniel Morgan, improperly prompted a key witness (Eaton) to implicate various suspects (i.e., some of the claimants). Further, Cook was alleged to have deliberately withheld the fact of his actions from the CPS who took the decision to prosecute the claimants.
First instance decision
At first instance, Mitting J dismissed the claimants’ claims for malicious prosecution because:
1. Mitting J determined that Cook had not been the ‘prosecutor’ because it is not enough to say that he had prevented the independent decision maker (the CPS) from reaching a fully informed decision or for him to have made it more difficult for the CPS. Rather he would have had to have made it virtually impossible for the CPS to exercise independent discretion; and Cook’s conduct did not suffice in this respect (paragraph 146);
2. In any event, Mitting J found that Cook had not acted ‘maliciously’. The fact that Cook “overstepped the mark – even to the point of committing the criminal offence of doing an act tending and intended to pervert the course of justice – does not alter his state of mind which was, I am satisfied, to bring those he believed to be complicit in the murder to justice” (paragraph 176).
In respect of the claimants’ claims for misfeasance in public office Mitting J found in the claimant’s favour on every issue save that he did not consider that three of the four claimants had suffered any loss. Rather he considered what would have happened but for Cook’s conduct (which had resulted in the production of Eaton’s evidence); and, in respect of those three claimants, he found that on the balance of probabilities the CPS would have decided to prosecute them anyway, hence their claims failed (paragraphs 191-195).
The remaining claimant succeeded and the three unsuccessful claimants appealed.
McCombe LJ disagreed with the decision below that Cook was not the prosecutor because he “took it upon himself to present to the independent prosecutor for a prosecution decision a case which he knew included an important feature procured by his own criminality [and] The CPS were deprived of their ability to exercise independent judgment” (paragraphs 56-60). McCombe LJ also found it impossible to say that Cook believed he had reasonable and probable cause to prosecute (paragraphs 75-76). He disagreed with Mitting J's approach, commenting that “DCS Cook’s belief … that the appellants were guilty of the murder cannot prevent the prosecution having been malicious”. McCombe LJ considered that just because a prosecutor believes a person is guilty does not negate malice if his or her case is heavily reliant on evidence he or she has criminally obtained. In this respect, Cook deliberately misused the processes of the court and was not bringing a criminal to justice at all (paragraphs 81-91).
With regard to the question of whether the claimants had suffered any loss, which was also necessary for a malicious prosecution claim (and, as above, was the sole reason that the misfeasance in public office claim was dismissed in respect of the three appellants), McCombe LJ considered that whilst there may just about have been enough evidence to prosecute the claimants without Eaton, he considered that the prosecution nevertheless would not have been commenced had the CPS known how Eaton’s evidence had been procured (paragraphs 96-102).
What this means for you
The first instance decision in Rees provided welcome solace to police forces in setting a high bar for the circumstances upon which a police officer can be considered the ‘prosecutor’ in presenting evidence to the CPS. It seemed that even perverting the course of justice may not be enough. Whilst the appeal decision makes clear that the bar may not be quite so high, it is worth remembering the test as set down in Martin v Watson  AC 74 (and recently endorsed in Coghlan v Chief Constable of Cheshire Police  EWHC 34 (QB)): the claimant must show that the police had made it virtually impossible for the CPS to make an independent decision. For example, simply presenting evidence to the CPS, whatever the strength of that evidence, could never suffice.
It is also interesting to note McCombe LJ’s negative view of the honest ‘fit up’, i.e., the illicit procurement of evidence to support a prosecution where the prosecutor honestly believes in the guilt of the accused. In this respect, McCombe LJ follows Eady J in Read v Newcastle City Council  EWHC 1600 (QB) who said that “A police officer who, believing an accused person to be guilty, bends the rules in order to secure a conviction, would be acting in bad faith”.
On the subject of causation, McCombe LJ took a different approach to Mitting J. Whereas Mitting J considered what would have happened had Cook not produced the tainted evidence at all, McCombe LJ (perhaps unusually) considered what would have happened had Cook essentially come clean at the charging stage. One might argue that Mitting J followed the more logical approach in that he simply considered what would have happened but for the wrong doing; whereas McCombe LJ undertook a somewhat artificial exercise in imagining that the wrong doing still occurred but that this wrong doing was discovered at an arbitrary point, i.e., at the point of the charging decision. We will be monitoring closely how this approach to causation is reflected in subsequent decisions.
Authored by Daniel West, BLM Associate