England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF HIS HONOUR JUDGE TAYLOR

		Royal Courts of Justice Strand London WC2 Wednesday, 3rd October 2001

1. LORD JUSTICE KENNEDY: This is a claimant's appeal from a decision of Judge Michael Taylor who, on 9th December 1999 at Middlesbrough, dismissed the claimant's action against the defendant. Permission to appeal was granted by the single Lord Justice in relation to one head of claim only, namely the allegation of misfeasance.

Background

2. The background to this civil action is a criminal investigation which resulted in the acquittal of the two claimants. The offences which gave rise to the investigation were committed on 31st January 1991. At 2 am there was an armed robbery at the home of Lisa Stockwell at Eston, Teesside. At 3 am her boyfriend Lee Paul Duffy was shot in the leg at a blues party nearby. He was well known locally to be involved in drugs, dishonesty and violence but contract shooting was not then a feature of Teesside crime so the incident caused the police considerable concern.
3. Statements were obtained from the eye witnesses at Eston and from Duffy. The descriptions of the offenders were not particularly consistent but one woman Ria Maria Nazir was thought to be able to help. Duffy, armed with a gun, had recently visited her and, together with his henchmen, tried to recruit her as a drugs dealer. On 2nd February 1991 she was brought by two police officers to the police station. After a time she was seen alone by Inspector Mallen, who has subsequently become a well known name. There were no tape recording facilities at the police station at that time. No contemporaneous note was made. It was the Crown case that whilst alone with the inspector Nazir admitted involvement in the attempted murder and immediately afterwards the inspector instructed the two police officers who had brought her to the police station to arrest her on that charge. That was done. She was then interviewed by the two officers. The judge found that interview to have been properly conducted and in it the admissions were repeated. For that interview she did not have the services of a solicitor, but after she had seen a solicitor she attempted, as the judge found, to backtrack. She also tried to create a diversion. She said that she had miscarried at the police station, and was removed to hospital where it became clear that she had not even been pregnant. There was a suggestion that in hospital she made some attempt at suicide but there was no real support for that suggestion.
4. While she was in hospital her home was searched. The police found nothing to link her with the offences of 31st January 1991 but they did find the paraphernalia of a drugs dealer and £900 in cash.
5. On 5th February 1991, whilst still in hospital, Nazir asked to speak to a senior police officer. Superintendent Miller and Inspector Leonard went to see her. They were in charge of the investigation into the attempted murder, as it was then believed to be, and the robbery and the burglary. She wanted to do a deal. If not prosecuted she would give information about the crimes committed on 31st January 1991. Superintendent Miller discussed the proposal with Keith Simpson, a senior local Crown Prosecution Service Crown Prosecutor, and with Keith Leigh, Nazir's solicitor. The police officer wanted to get at the men who had used weapons and Mr Simpson agreed. The solicitor was naturally anxious that his client be free. On 6th February 1991, after she was returned from hospital to police custody, the deal was done and she made a long statement in the presence of two women police officers and her solicitor or his representative with occasional visits from Superintendent Miller. At 4 pm her extended custody time limit expired and she was bailed, but she remained to complete the statement.
6. At 6 pm her solicitor, Mr Leigh, came in and found her drinking brandy from a small brandy bottle. He did not intervene or express concern. Superintendent Miller never saw her drinking but one of the women police officers recalled that she did so. The brandy, as the judge found, was hers. It was with the property restored to her when she was granted bail. She was a known alcoholic, but on the evidence the judge found that she had her senses about her and was able to give information. At that stage she did not identify the men involved on 31st January beyond indicating a link with Birmingham, saying that she had turned to Birmingham for help to sort out Duffy. No doubt to try to prompt some identification she was shown photographs. The judge was caused, as he put it, "a degree of disquiet" by the fact that no proper record was made of the use of photographs.
7. The police had or later acquired some other evidence to link Teesside and Birmingham. There was a white BMW motor car which had been seen locally and in company with Nazir's Honda Civic. There were also telephone records that linked Nazir and her brother in law John Leroy Thomas in Birmingham and also linked these two claimants.
8. Nazir was taken to Birmingham and there she gave police officers the names of John Leroy Thomas and the two claimants.
9. John Leroy Thomas was a notorious local fence specialising in jewellery. Jewellery had been taken at the time of the robbery. His appearance was such that he could have been the third man described by witnesses and he owned a white BMW.
10. The two claimants had criminal records and had been involved with robberies and, in the case of the second claimant, with firearms. All three were arrested and taken to Teesside. John Leroy Thomaswas arrested on 27th February 1991 and at that time had on him some £940. They all three denied involvement and the two claimants offered at that stage to take part in an identification parade.
11. Off the record John Leroy Thomas gave some information and Nazir tried to broker a deal for him. Her solicitor - who also became his, Mr Leigh - saw Superintendent Miller who, as the judge found, was less anxious to do a deal than he had been in the case of Nazir. He was prepared to consider what charge should be preferred and, if he received co-operation, to say so to the court. But, in the event, John Leroy Thomas was charged with conspiracy to murder. As Mr Lally, who has appeared before us for the appellants, points out, he was never charged with robbery or burglary.
12. On 25th April 1991 the senior police officers involved in the investigation and the representative of the Crown Prosecution Service met counsel in conference and amongst other things the question of an identification parade was discussed.
13. Inspector Beech, who had been appointed identification officer, asked the two claimants if they would take part and they refused to do so. Therefore the police photographed the two claimants and separately photographed a number of volunteers, everyone being photographed at the charge office. Thus the police were in a position to create a video film which they showed to potential identification witnesses in the presence of the claimant'ssolicitors. The second claimant's solicitor objected to the procedure but Inspector Beech decided to go ahead nevertheless.
14. The second claimant was positively identified by Wendy Stockwell and Nicola Richardson in relation to the burglary or robbery. Nazir did not at first identify him. She indicated a desire to say something different and was allowed to see the film again in the presence of the first claimant's solicitor. She then identified the second claimant on both matters.
15. Committal proceedings followed at which Nazir gave evidence confirming the involvement of John Leroy Thomas and both claimants and others. The case was committed for trial. In October 1992, shortly before the hearing in the Crown Court was due, the indictment was amended on the advice of leading counsel. The allegation of conspiracy to murder was abandoned. In its place there was substituted an allegation of conspiracy to cause grievous bodily harm which reflected the evidence which at that stage Nazir was expected to give. However when the case reached the Crown Court in that same month Nazir refused to give evidence and the prosecution offered no evidence in relation to either matter; so the claimants were acquitted.

Civil Proceedings

16. These civil proceedings were commenced three years later in 1995 with allegations of malicious prosecution and misfeasance in public office. Shortly before the trial began in late 1999 an attempt was made to add allegations of negligence and breach of statutory duty but the trial judge refused to allow the late amendments. He did however allow the claimants to expand the factual basis of their case. In his judgment he rejected the allegations of malicious prosecution and that is no longer a live issue before us. He also rejected the allegations of misfeasance.

General Thrust of Case

17. As Mr Robert Smith QC for the respondent points out in his skeleton argument, it is instructive to see how this case was presented in the pleadings and in the court below. It was presented as a case of dishonesty where the police had acted with corrupt and improper motives and had dishonestly abused their power with the intention of injuring the claimants by getting them convicted at any cost. That case was, in effect, destroyed by the factual findings of the trial judge which I have attempted to summarise. But nevertheless it is contended that there is something left of the allegation of misfeasance which is worthy of further consideration by this court. I turn therefore to the grounds of appeal.

Ground 1

18. In Ground 1 it is asserted that the trial judge erred in law in respect of misfeasance.
19. The judge gave judgment on 9th December 1999, five months before the House of Lords gave judgment in Three Rivers District Council and Others v Governor and Company of the Bank of England [2000] 2 WLR 1220 which is now the leading authority in relation to this branch of the law. Counsel for the appellants and the trial judge did have the benefit of the judgment of Mr Justice Clarke in Three Rivers. That judgment, which was approved by the House of Lords, was reflected in written submissions placed before the judge by leading counsel for the appellants. The judge adopted counsel's formulation, saying at page 19 of the transcript:

"As far as misfeasance is concerned, again no great dispute taken by the defendant as to how misfeasance is committed. Misfeasance or malicious abuse is committed by a public officer in one of two of the following ways. Firstly, where a public officer does something for a malicious motive which causes damage for the plaintiff and secondly where damage is caused by a police officer knowingly doing something which he has no power to do."

20. That means that Mr Lally in this court can only submit that the judge erred if he was misled by counsel in the court below (which is not contended) or if, as a result of the decision of the House of Lords, it is clear that the law is not as the judge believed it to be. But in my judgment the decision of the House of Lords as applied to the facts of this case, shows that the judge was right.
21. The leading speech was that of Lord Steyn who at page 1230 onwards set out the ingredients of the tort. At page 1231B, under the heading "The third requirement concerns the state of mind of thedefendant", he said:

"The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful."

22. At 1231G he continued:

" ..... there are not too separate torts. On the other hand, the ingredients of the two forms of the tort cannot be exactly the same because if that were so there would be no sense in the twofold classification. Undoubtedly, there are unifying features, namely the special nature of the tort, as directed against the conduct of public officers only, and the element of an abuse of public power in bad faith. But there are differences between the alternative forms of the tort and it is conducive to clarity to recognise this."

23. Pausing there, it is worth noting that in the present case it was the first form of the tort - targeted malice - which was alleged. But either way bad faith was, as the House of Lords makes clear, an essential ingredient.
24. Lord Hope agreed with Lord Steyn and Lord Hutton in relation to this aspect of the case, as did Lord Millett. So I turn to Lord Hutton who, at page 1266F, said:

"My Lords, I consider that dishonesty is a necessary ingredient of the tort, and it is clear from the authorities that in this context dishonesty means acting in bad faith. In some cases the term `dishonesty' is not used and the term `in bad faith' or acting from `a corrupt motive' or `an improper motive' is used, or the term `in bad faith' is used together with the term `dishonesty'."

25. He gives some examples and continues:

"However, as the term `dishonesty' in some contexts implies a financial motive, I consider that the term `in bad faith' is a preferable term to use and, as I have stated, I consider that it is an essential ingredient in the tort."

26. Mr Lally invited our attention to parts of the speech of Lord Hobhouse. I do not myself believe that those passages are at odds with the passages I have cited. If I am wrong as to that the passages cited still represent the decision of the House and, as Mr Lally in the end accepted, they do not demonstrate error on the part of the trial judge.

Ground 2

27. I move therefore to Ground 2. In paragraph 17.1 of their amended particulars of claim the appellants give ten particulars of alleged misfeasance and they now complain that the judge failed in his judgment to address three of those particulars, namely those numbered (ii), (iii) and (x). There is a misprint in the notice of appeal in relation to the last number. Paragraph 17.1 (ii) of the amended particulars reads:

"Allowing the charges against John Leroy Thomas for robbery of the Stockwells to be dropped and reducing down the offence of attempted murder to that of attempted assault when there was sufficient evidence to suggest that he was involved in the attempted murder or alternatively the conspiracy to murder or to cause grievous bodily harm and the robbery."

28. In fact John Leroy Thomas never was charged with robbery and, as I have already indicated, the charge of conspiracy to murder was reduced to conspiracy to cause grievous bodily harm in respect of all defendants on leading counsel's advice. Why he was not charged with robbery or burglary is not clear to me at this stage, but even if the charge was withheld in order to encourage him to give information about his co-accused I do not see how that could possibly amount to misfeasance.
29. The next particular of misfeasance referred to in Ground 2 of the grounds of appeal is paragraph 17.1 (iii) of the amended particulars which reads:

"Allowing Ms Nasir to administer brandy whilst being detained and questioned in the investigation at the police station."

30. This apparently relates to the incident at about 6 pm on 6th February 1991, to which I have already referred. But, as is clear from the narrative, Nazir was not then in custody. The police officers who saw her drinking could perhaps have discouraged her from doing so, but apparently neither they nor her solicitor did discourage her. The reality is that the police wanted the statement that she was then giving. To my mind the judge was right not to regard this as any evidence of misfeasance.
31. The final particular of misfeasance referred to in Ground 2 of the grounds of appeal is paragraph 17.1 (x) of the amended particulars of claim. It reads:

"Allowing Ms Nasir to induce John Leroy Thomas to give evidence by administering him with brandy."

32. The incident is not referred to in the judgment. It seems that on 2nd March 1991 when John Leroy Thomas was in police custody he was visited by his sister in law Nazir who was allowed to speak to him in private with a police officer outside the room. When her solicitor entered he found her pouring brandy from a bottle in her possession into John Leroy Thomas's soft drink container. Apparently, she was also trying to persuade him to co-operate with the police. There was, as Mr Smith points out, no evidence that the police knew what was going on. The judge, clearly, at least by inference, rejected the suggestion that the police were trying by improper means to induce John Leroy Thomas to give evidence against his co-accused. Furthermore the reality is that he never did so, or even agreed to do so, from which it follows that his access to brandy had no effect at all on the appellants, even assuming he was allowed to continue to have it, and it cannot possibly amount to misfeasance.

Ground 3

33. Ground 3 begins with these words:

"The learned trial judge was plainly wrong in not establishing that the defendants had acted in misfeasance, given the following;"

there followed eight particulars. The first relates to the decision not to prosecute Nazir. Mr Simpson of the Crown Prosecution Service, in reliance on a file note made some several days later, said when he gave evidence in the present proceedings that when that decision, that is to say the decision not to prosecute Nazir was taken, he was only aware of her admissions to Detective Inspector Mallen, those being admissions which it would be very difficult to adduce in evidence. Clearly he should also have been informed of her admissions to the two interviewing officers. The assertion now is that Superintendent Miller deliberately or recklessly withheld that information.

34. This is not an allegation that was ever pleaded and so it was not fully explored with Mr Simpson. Furthermore it was never even put to Superintendent Miller beyond an assertion that he "downplayed" the effect of the evidence. The point was not developed in argument in the court below. In the circumstances the judge could not safely have found that Mr Simpson was not fully informed. In any event, it is clear from the rest of his findings that he could find no bad faith and no dishonesty.
35. The second particular relates to the immunity granted to Nazir. It reads:

"(ii) in granting a local immunity in not prosecuting Ria Maria Nazir for the attempted murder causing grievous bodily harm and/or drug offences rather than going to the DPP."

36. There was no evidence that procedurally the question of immunity should have gone to the Director of Public Prosecutions. The judge found (at least if Mr Simpson was properly informed) that there was no irregularity.
37. Particulars (iii) and (iv) relate to the consumption of brandy at the police station by Nazir and John Leroy Thomas. I have already dealt with those matters.
38. Particular (v) deals with the failure to charge John Leroy Thomas in respect of the robbery. Again, I dealt with that matter earlier in this judgment.
39. Particular (vi) deals with the return of money to Nazir and to John Leroy Thomas and the judge did, not surprisingly, express some concern about this. The fact is that (1) Nazir got her £900 back on 15th February 1999, nine days after she made her statement on 6th February 1999; (2) John Leroy Thomas got back his £940 on 26th March 1999, just under four weeks after his arrest.
40. As a result of what seems to have been an administrative error, both were repaid for a second time after the conclusion of proceedings int he Crown Court, but, as Mr Lally accepts, nothing can now turn on that. Mr Lally's submission is that the earlier repayments are indicative of misfeasance because of the weight of evidence against Nazir and John Leroy Thomas. But, as it seems to me, once it was decided not to proceed against Nazir she had a right to her money. She could have been charged with drugs offences, but for obvious reasons the decision was taken not to follow that course. Similarly, as Superintendent Miller made clear when giving evidence, he had in his judgment no good grounds for holding on to the £940. He could not show that it was part of the fee for the attack on Duffy committed 27 days before John Leroy Thomas was arrested. So, in my judgment, the judge was right to find in the end that the repayments did not amount to evidence of mesfeasance. Certainly, there was no real room for the inference that the evidence of Nazir and John Leroy Thomas was being bought with their own money.
41. At particular (vii) there is complaint of the handling of the identification procedure. The trial judge expressed disquiet about two matters: (1) the fact that the identification parades were not held soon after the two claimants were arrested, and (2) the fact that Inspector Beech, the identification officer, did not see the descriptions given by witnesses of the attackers.
42. As to the first, the failure was unfortunate but it has nothing to do with the tort alleged given that the two claimants, as the judge found later, refused to take part in an identification parade at all.
43. As to the second matter, Code D of the Codes to the Police and Criminal Evidence Act, only requires that the identification officer should be aware of the first description given. He does not need to be aware of all other descriptions, and I do not share the judge's disquiet.
44. The eighth particular given in support of Ground 3 in the notice of appeal relates to the handling of Nazir and John Leroy Thomas generally and adds nothing to the particulars which precede it.
45. At the end of the day what, in my judgment, makes this appeal virtually unarguable is that the judge - for what I conceive to be good reasons which he gave - rejected the allegation of bad faith. That, as the House of Lords has made clear, was an essential ingredient of the tort. I would therefore dismiss this appeal.
46. LORD JUSTICE MUMMERY: I agree.
47. LORD JUSTICE LAWS: I also agree.
Order: Appeal dismissed with the costs.