Public policy immunity for police.

Silcott v Commissioner of Police of the Metropolis

(1996) The Times, July 9Court of Appeal

The Facts

Silcott had served a statement of claim on the defendant commissioner pleading three causes of action: (i) conspiracy to pervert the administration of justice; (ii) misfeasance in public office, and (iii) malicious prosecution. The first two had been struck out.

Silcott sought to have them reinstated, the advantage being that he would be spared the need to prove the absence of reasonable and probable cause to prosecute, one of the essential elements of the tort of malicious prosecution, but an element lacking from the other two causes of action.

On October 6, 1995 PC Blakelock was killed during a riot in Tottenham. Silcott was arrested by DCS Melvin for the murder. He was interviewed by DCS Melvin and DI Dingle.

Silcott was convicted at the CCC of the murder and of riot. He was sentenced to life imprisonment and ten years imprisonment respectively.

The only witness against Silcott at the trial was DCS Melvin who produced notes made by DI Dingle of the interview. The notes contained admissions by Silcott of his guilt.

On July 25, 1991 the Home Secretary ordered an investigation of the way in which the interview had been conducted and the authenticity of the notes of the interview.

The Home Secretary referred the convictions to the Court of Appeal, Criminal Division. On November 15, 1991 that court quashed the convictions on the basis that they were unsafe and unsound.

The Law

LORD JUSTICE SIMON BROWN, giving judgment said that Silcott's pleaded case was, inter alia, (i) that the notes were a false record which harmed him by contributing to his conviction for murder; (ii) the intention of the two officers was to pervert the course of investigation into the murder; and (iii) that in creating the false notes the two officers acted maliciously and in the knowledge that they were abusing the office of constable.

His Lordship would emphasise two matters: first, that Silcott's case against the officers, who were acting under the control of the defendant commissioner, had not yet been tried; second, that the two officers had been charged with conspiracy to pervert the course of justice and with perjury, tried at the Central Criminal Court, and acquitted by unanimous jury verdict on each count.

The issue raised on appeal remained, as it was identified below "whether the alleged actions of the police officers are protected from any civil action for conspiracy to pervert the course of justice or misfeasance in a public office by reason of a cloak of absolute immunity conferred as a matter of public policy".

Counsel for Silcott submitted that the instant case involved the creation of a false document, namely seven pages of manuscript notes purporting to be a contemporaneous record of an incriminating interview with Silcott, but in fact a forgery, sheer invention from first to last.

Such conduct, he argued, was not immune from suit merely because the officers' own statements and testimony on the issue were prepared for Silcott's criminal prosecution.

That, he submitted, was coincidental, just as the fact that oral evidence might be given by the prosecutor in a malicious prosecution case was incidental. He submitted that in fabricating evidence against Silcott the officers were not "investigating crime" and thus could not benefit from the immunity rule.

Counsel for the Commissioner submitted that the requirement in the tort of malicious prosecution to prove absence of reasonable and probable cause struck what had long been recognised as the right balance between the competing public interests at stake.

The same policy considerations as underlay the immunity rule in its most direct and obvious application, that is, where statements had been prepared for proceedings and evidence had then been given, to his Lordship's mind applied with equal force to the present situation. Protection must extend to the preparation of evidence equally as to its presentation.

His Lordship could see no difference in principle between a police officer fabricating a record of interview in writing, and the equivalent in times past, of a police officer "verballing" an accused; nor between, say, an officer planting a brick or drug on an accused so that someone else would give truthful evidence of having found it, and an officer giving false evidence that he himself found such a brick or drug.

In his Lordship's judgment, the immunity covered all conduct that could fairly be said to be part of the investigatory and preparatory process.

To Counsel for Silcott' submission that there was no public interest in protecting those who created false evidence or, for that matter, those who destroyed sound evidence, his Lordship would answer that that missed the essential point; the public interest was in the protection of those who might otherwise be falsely accused of such conduct.

That of course left the position:

1. That the assumed miscreant was himself open to criminal prosecution whether for perjury or for perverting the course of justice, precisely the charges which faced the officers in the present case.

2. If the miscreant was himself responsible for the prosecution being brought, whether or not himself technically the prosecutor, he was vulnerable to a claim for malicious prosecution.

His Lordship acknowledged that, if the information provided by the miscreant was not the determining factor in the decision to prosecute, so that he himself could not be sued for malicious prosecution, then the effect of the immunity rule was to deny the person aggrieved all civil remedy against him.

That, however, seemed to his Lordship less of an anomaly than would arise on Silcott's argument, namely that, wherever the alleged miscreant was a police officer, an action lay for misfeasance in a public office, and that, wherever there was alleged to be more than one miscreant, a claim could be brought for conspiracy, in each case without the need for Silcott to prove absence of reasonable and probable cause, or for Silcott even to have been acquitted of the crime against him.

The judge was correct in his ruling and in the reasons he gave.

The Decision

A person whose conviction for a crime was subsequently quashed on the ground that it was unsafe and unsatisfactory could not bring any civil action for conspiracy to pervert the course of justice and misfeasance in public office against police officers investigating the crime who, he alleged, had created a false record of an incriminating interview with him, because the officers were protected by a rule of absolute immunity conferred as a matter of public policy.

The Court of Appeal so stated dismissing an appeal by Silcott, from the decision on April 12, 1995 of his appeal against a striking-out order made on February 2, 1995.

Comment

In Conway v Rimmer [1968] AC 910it Was said that it is in the public interest to withhold material, the disclosure of which would harm the nation or the proper functioning of the public service. It is also in the public interest that justice should be publicly seen to be done, by the reception of all relevant evidence. If there is a conflict between two interests, whether otherwise admissible evidence should be withheld in the public interest is a matter of balance to be done by the courts and not the executive.

Clearly the courts here have applied a similar test to find that balance, police officers investigating crimes must have such a protection.

It should of course be empathised a, as Lord Justice Simon Brown did that the plaintiff's case against the officers has yet to be tried, but both have been acquitted of conspiracy to pervert the course of justice and perjury.

Public Interest Immunity (PII) has already been attached to police communications relating to the investigation of crime, see Taylor v Anderton (1986) The Times, 21 October, Taylor v Chief Constable of Greater Manchester (1995) The Times, 19 January. Regarding Reports sent by the police to the DPP see Evans v Chief Constable of Surrey [1988] QB 588. For Police Complaints and Disciplinary files see R v Chief Constable of West Midlands Police Ex parte Wiley and Others [1995] 159 LGRR 181 which overruled Neilson v Laugharne [1981] QB 736 and Halford v Sharples [1992] 1WLR 736.

In O'Sullivan v Commissioner of Police of the Metropolis (1995) The Times, 3 July, it was held that the initial report form sent by the police to the CPS, following an investigation into a suspected criminal offence belonged to a class of documents to which public interest immunity attached. There there was clear authority to support a claim that class immunity applied to a document in the possession of the police, the claim did not have to be raised by a government minister but could be raised by a responsible official within the police force. The court refused an application by O'Sullivan, for discovery of the initial report form, Form 151, sent by the Metropolitan Police to the Crown Prosecution Service.