England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL Monday 12th March 2001

LORD JUSTICE OTTON:

This is an appeal by the claimants against the decision of Mr Justice Goldring given on the 17th March whereby he ordered that the claims against the second defendant be struck out. By a Respondents Notice it is contended that the learned judge's decisions should be affirmed on additional grounds.

Background

The First Appellant [L]) is now aged 13. In early 1990, when [L] was three years old, her mother made a series of allegations against her father, the Second Appellant (P), claiming that [L] had been the victim of very serious sexual abuse at his hands. The police and social services were called in to investigate. A social worker and police officer, WPC Grey interviewed [L] on 10^th and 11^th April 1990. They erroneously concluded that the complaint by [L]'s mother was well founded and that [L] was at risk of further abuse. It subsequently transpired that [L's] mother suffered from Munchaussen's Syndrome by proxy and that her allegations of abuse were fabricated.

The allegations led initially to private law and then to public law family proceedings that were heard before HHJ Kenny in the Reading County Court between 1993 and 1998. The family proceedings are still in train having been transferred to the High Court. In 1996, in an interim judgment, the father was exonerated and [L] since then has lived with him and had occasional contact with her mother.

The Appellants alleged that the interviews were conducted improperly and that as a result social services were needlessly involved with the family for a number of years. It is alleged that the relationship between [L] and her father was damaged with psychological consequences for both. The factual basis of these proceedings is the 1996 judgment which was highly critical of the conduct of the social worker and the WPC. The Appellants contend that but for the initial damaging, incompetent and misleading video interviewing by the police officer and the social worker and the subsequent misrepresentation of its results there would have been no credible material on which to base the allegation that the father was a sexual abuser. Criminal proceedings were never brought against him. He and [L] would have been spared the subsequent public law children proceedings. [L's] childhood would not have been overshadowed by baseless allegations, neither [L] nor her father would have suffered personal injury, and the father would not have suffered the consequent economic loss and damage to his earning potential and employment prospects.

The Second Defendant, the Chief Constable of the Thames Valley Police, applied to strike out the claims as having no real prospect of success The First Defendant, Reading Borough Council, the employer of the social worker did not make a similar interlocutory application.

The hearing before Goldring J

The application was heard by Goldring J in January 2000. Argument lasted two days and judgment was handed down on the 21^st March.

The Judge found:

(1).That the claim in negligence brought by L was arguable. There was an arguable case of proximity. He found that the Respondent did not owe any duty of care to the father as there was no proximity between a suspect and the police when carrying out their investigatory duties.

(2)That both L's and her father's claims based upon misfeasance and conspiracy were arguable.

(3)That claims should be struck out because the Chief Constable is entitled to witness immunity in respect of the conduct of the WPC during the two interviews and a report of 28^th April 1990 which (it is said) misrepresented the interviews.

Having so found, the learned Judge struck out the whole action. In doing so the learned Judge seems to have treated the application as being for summary judgment under CPR Part 24.2 for the purpose of deciding what test he had to adopt to decide the issue that there was no real prospect of succeeding on the claim or issue. At times he appears to have approached the application as being brought under CPR Part 3.4(2)(a) that the Statement of Case discloses no reasonable grounds for bringing the claim. However we are satisfied that for the purposes of this appeal we should regard Part 24.2 and 3.4 as effectively the same and that no objection can be taken to the Judge's use of language from one rather from the other Part.

At the outset of the appeal we were invited by Mr Andrew Edis QC for the Appellants to read the judgment of HHJ Kenny. We declined to do so for two reasons. We considered it appropriate to approach the application and the appeal on the basis of the pleading in the Statement of Case and not upon the text of Judge Kenny's judgment. Secondly, the Second Defendant does not accept the findings or the strong language in which they were expressed. Mr Edward Faulks QC, on behalf of the Respondent, correctly pointed out that the police were not a party to either the private or the public proceedings. We consider that it would be a matter for the trial judge to determine whether the police can challenge Judge Kenny's conclusions and that it was not appropriate to determine this issue on this appeal.

The Pleading

"2.7 The following day [the mother] telephoned a social worker employed by Berkshire County Council, one Sandra Sullivan, and repeated what she had told Mrs Schofield. It was agreed that [L] would be interviewed at [the mother's] home on 10th April 1990.

2.8 The interview was carried out by Sandra Sullivan and WPC Grey. It was not video recorded, nor were any contemporaneous notes made by either Sullivan or Grey. During the course of the interview both women were concerned by two statements made by [L] :

(i) that Daddy helped her go to the toilet ;

(ii) that she played a "dog and bone" game with her Daddy.

Sullivan and Grey were concerned that these statements were made in an aroused manner and that in their opinion they implied that fellatio had taken place.

2.11 The further interview took place the next day, 11th April 1990, it was video recorded. It will be contended at trial that, as a matter of fact :

(i) The interview was conducted improperly, incompetently, and was grossly unfair to both the 2nd Plaintiff and [L]

(ii) it elicited nothing that could be described as evidence of sexual abuse or improper conduct by the 2nd plaintiff.

(iii) the interview contained both outrageous and oppressive questioning ;

(iv) the interview and the questioning techniques were themselves highly abusive towards [L]

(v) [L] was pestered and pressed by both WPC Grey and Sandra Sullivan until she became upset ; and

(vi) that [L] was exposed to a large number of inappropriate sexual suggestions ;

(vii) that despite this treatment, at no stage of the interview did she indicate anything that could have been consistent with a sexual experience or other abuse ;

(viii) [L] specifically denied that the "dog and bone" game was naughty

(ix) [L] stated that she played it with her mummy as well as her daddy ; and that

(x) it emerged at a later stage of the interview that the 2nd Plaintiff was not the only person [L] referred as "Daddy" but that she was also referring to another boyfriend of [the mother] a Barry Cresswell.

2.12 On 19th April 1990, following various allegations made by [the mother], [P] was arrested and questioned by the Thames Valley Police on suspicion of sexually abusing [L]. He was interviewed and thereafter released without charge. During the said interview, in which he did not have the benefit of legal advice he refuted all suggestions of improper conduct. 2.13 Sandra Sullivan attended a child protection case conference convened by Berkshire County Council on 25th April 1990. She described the interview on 11th April 1990 as follows :

"[L] said she did not like the games she played with her father and that he put his "willy" near her genital area. At this point she broke down and sobbed and the interview was terminated ...."

Sandra Sullivan also stated of the "dog and bone" that [L] was sucking the bone, "one end of which she had put in her mouth, while the other end was attached to her father."

2.14 In a report dated 28th April 1990, on the police file, WPC Grey stated :

"On 10th April 1990 [L] again stated that Daddy had touched her vagina ... she also stated that she played a game where she had to bite and lick a "bone." It appears from what [L] said and actions she carried out, [P] had been putting his penis in her mouth ...."

2.16 Following the July 1995 judgment when the 2nd plaintiff was exonerated of sexual abuse allegations, His Honour Judge Kenny made various orders designed to promote contract between [L] and [P].

2.17 The family proceedings continued and on 23rd October 1996 His Honour Judge Kenny granted Berkshire County Council a full care order in relation to [L].

2.18 On 30th October [L] was placed with the second plaintiff, she has lived with him ever since. [The mother] has had limited supervised contact."

The issues on the appeal and the Respondents notice

The issues raised on the Notice of Appeal are:

(a) Was the Judge right to find that the father's claim in negligence was unsustainable due to a lack of proximity?

(b) Assuming that there may be proximity and that all the remaining causes of action pleaded were arguable, was it right to strike out the claims on the basis that the police were immune from suit because they were entitled to take advantage of the well established immunity which protects all those who take part in the administration of justice?

(c) Does such an immunity and the consequential striking out of their claim act as a procedural bar which infringes Article 6 of the ECHR, placing both L and her father in the position that there is no access to the Court to enable them to pursue their otherwise arguable substantive civil rights?

The issues raised on the Respondent's notice are:

(1).Was L's claim in negligence also bad in law. Should it have been struck out for lack of legal proximity?

(2).Was the Judge right to have concluded that he was precluded from striking out the case because of the decision in the European Court of Justice in Osman -v- UK [1999] 1 FLR 193 and its subsequent interpretation by the House of Lords in Barrett -v- London Borough of Enfield [1999] 3 WLR 79?

(3) Should the Judge have concluded that the claims in negligence should have been struck out due to the binding authority of the House of Lords in Hill -v- Chief Constable of West Yorkshire [1989] AC 53 and as subsequently interpreted by the House of Lords?

(4) Was the Judge correct in not striking out the claims in misfeasance and conspiracy because they were arguable, alternatively should they have been struck out because they had no real prospect of success?

The arguments on both the Appeal and the Respondent's notice are inter-linked and I will deal with them together under the following headings.

The claim in negligence

In deciding the duty issue Goldring J applied the three stage test derived from earlier authority and set out in Caparo Industries PLC -v- Dickman [1990] 2 AC 605, per Lord Bridge at 617G-618E. The first stage, reasonable foreseeability of damage was not in issue before the learned Judge or before us. The Respondent conceded for the purpose of the strike-out application that injury to the Appellants was foreseeable. The second and third stages were in issue.

Proximity :

The learned Judge found that in [L's] case there was an arguable case on proximity but in her father's case there was not. Mr Edis, on behalf of the Appellants contended that the Judge was correct in respect of L's case but fell into error in respect of the father's claim. Mr Faulks, on behalf of the Chief Constable, contended that the Judge was correct in holding that there was no proximity as regards the father and that he should have reached a similar conclusion in respect of [L's] claim.

I deal first with [L's] claim. Mr Faulks submitted that the learned Judge erred in law in finding that there was arguably a relationship of proximity between [L] and the WPC. In interviewing a potential victim of crime, the police are performing a function for the benefit of the public, not the victim. There may be a conflict between the public interest and the interest of the victim. For instance, the victim, for reasons personal to her, may not want to pursue a complaint, whereas it may be in the public interest (for preventing possible attacks on other people) that the complaint is pursued. The class to which [L] belonged, namely a potential victim of or witness to a crime, is too wide for a relationship of proximity to exist.

Mr Edis submitted that proximity is largely a question of fact which must be determined at trial. In the particular circumstances of this case there was not merely physical proximity between the child and the WPC but an assumption of responsibility and a special relationship between [L], the WPC and the social worker. When professionals interview a child in order to investigate not merely past events but protection from future harm, they assume responsibility not to cause damage to their charge in the course of the interview and thereafter not to manipulate or misrepresent her words and actions to superiors.

For my part, I consider the judge was correct. I accept the appellants' argument and that there is an arguable case that there was an assumption of responsibility and a special relationship such as to take it out of the usual situation of interviewing a potential victim of crime, and that the police were not solely performing a function for the benefit of the public. Part of their responsibility included making inquiries to protect her from future harm which might ensue from the manner in which the investigation was carried out and by progressing the matter so that there was a real risk of interference with family life.

The position of the father is more complex and less obvious. Mr Edis submitted that there was a sufficient relationship of proximity between the police and [P]. The father's case is that by the end of the interview on the 11^th April it was clear that there were no grounds on which the allegation of child abuse could be sustained. Nevertheless he was arrested on the 19^th April and an attempt was made by the WPC to trick him into admitting guilt by lying to him in the absence of a solicitor about the state of evidence against him. Even so he made no admission. The gravamen of the conduct of the social worker and the WPC was their subsequent behaviour in concert whereby they misrepresented to their superiors what [L] had said and set in train the distressing family proceedings. In particular leading Counsel relies upon a report of the 28^th April 1990 by the WPC to her superior officer which clearly recorded that there was no evidence that there had been any crime.

Mr Faulks contended that the learned Judge was correct to hold that no duty of care was owed to the father in negligence as there was an insufficient relationship of proximity with him. The Second Appellant was a suspect in a potential crime. He was being interviewed as such. It cannot objectively be said that there was any assumption of responsibility to him when judged against that context. The relationship between police officer and victim is one of conflict or potential conflict. The class which the Second Appellant belonged, namely, potential suspects of crime, is too wide for a relationship of proximity to exist.

On this issue I have come to the conclusion that the finding of the learned Judge cannot be sustained. It is not necessary for this Court to decide that there was, in fact, proximity but merely whether it can be argued with a reasonable prospect of success that a situation of proximity did arise. It is true that the Second Appellant was a suspect in a potential crime. He was interviewed as such. I would accept that at that stage there was no assumption of responsibility towards him as a suspect and that in that respect the relationship between the WPC and [P] was one of conflict or potential conflict. However the matter did not end there. Although there was no evidence to support criminal proceedings the WPC nevertheless came to the conclusion that the complaint by [L's] mother was of sufficient substance that [L] was at risk of further abuse from her father. It is arguable, in my judgment, that from then on there was a legal assumption of responsibility and a special relationship between the WPC and the social worker on the one hand and the father on the other, and that a duty of care arose to take reasonable steps not to damage the father by their subsequent conduct.

Accordingly on the issue of proximity I would uphold the judge's decision in regard to [L] but reverse his decision in regard to P.

Fair Just and Reasonable

Both leading Counsel recognised that the three Caparo criteria have been seen to overlap. "These considerations inevitably shade into one another" (per Steyn LJ in Elguzoli-Daf -v- Commission of the Metropolitan Police [1995] QB 335 at 349). "The two headings (proximity and justice) are no more than two labels under which the Court examines the pro's and con's of imposing liability in negligence in a particular type of case" (per Nicholls VC in White -v- Jones [1995] 2 AC 207 at 221).

However, in Spring -v- Guardian Assurance PLC [1995] 2 AC 296 Lords Goff and Lowry adopted the approach of establishing the prima facie duty on the basis of proximity and then proceeding to consider whether it was ousted or overridden by policy arguments. In a number of emergency service negligence actions the courts have concluded that the particular circumstances did give rise to broad public immunity concerns (e.g. Capital and Counties PLC -v- Hampshire County Council [1997] QB 1004 CA-Fire Services).

The House of Lords addressed the position of the police in Hill -v- CC of West Yorkshire [1989] AC 53. The Plaintiff alleged that the police had been negligent in the investigation of a series of attacks on women by a man known as the Yorkshire Ripper. The Plaintiff's daughter was attacked and killed by him. It was pleaded that if the police had been more diligent they would have apprehended the killer and prevented the murder. The action was struck out. The House of Lords dismissed the mother's appeal and held that there was no general duty of care to individuals of the public who might suffer injury through an unknown criminal's activity unless there were exceptional circumstances. Moreover as a result of public policy the police were immune from actions in negligence in respect of their activities in the investigation and suppression of crime. In Osman -v- Ferguson [1993] 3 AER 344 where the police allegedly failed to protect the plaintiff from a known harasser the Court of Appeal adopted the House of Lords 'immunity' rationale in Hill even where, on the facts, proximity was established.

However, the English Courts have not regarded the immunity as absolute. In Swinney -v- Chief Constable of Northumbria [1997] QB 464 the Court of Appeal declined to give the police an immunity from an action in negligence brought by an informant whose information the police had promised to keep confidential but had carelessly allowed to fall into the hands of the very person informed on. The promise created sufficient proximity. The Court held that the public interest in granting the police an immunity from suit was outweighed by the competing public interest in keeping informants' information confidential.

The European Court of Human Rights (ECHR) considered the scope of immunity from suit in Osman -v- UK [1999] 3 FLR 193 when it reviewed the Court of Appeal decision in Osman and Ferguson. The plaintiff challenged the decision in the ECHR in Strasbourg on the grounds that, inter alia, the way that the court had recognised what amounted to an immunity from a negligence action violated an individual's right to a fair and public hearing under Article 6 of the Convention. The ECHR agreed . It held that the Court of Appeal's application of a generalised public interest ground for denying a duty of care amounted, in the circumstances, to a disproportionate restriction on the plaintiff's right of access to the courts. The English court had failed to demonstrate that it had properly considered the scope and application of any such immunity to the particular facts of the case, by seeking out and balancing any competing public interest arguments.

At paragraphs 150-154 of its decision the Court stated (relevant parts):

"151 The court would observe that the application of the rule (in Hill) in this manner without further inquiry into the existence of competing public interest considerations only serves to confer a blanket immunity on the police for their acts and omissions during the investigation and suppression of crime and amounts to an unjustifiable restriction on an applicant's right to have a determination on the merits of his or her claim against the police in deserving cases.

In its view, it must be open to a domestic court to have regard to the presence of other public interest considerations which pull in the opposite direction to the application of the rule. Failing this, there will be no distinction made between degrees of negligence or of harm suffered or any consideration of the justice of a particular case ……

152 For the court, these are considerations which must be examined on the merits and not automatically excluded by the application of the rule which amounts to the grant of an immunity to the police. In the instant case, the court is not persuaded by the Government's argument that the rule as interpreted by the domestic court did not provide an automatic immunity to the police.

153 (Having considered alternative remedies) … However, they (the applicants) were entitled to have the police account for their actions and omissions in adversarial proceedings.

154 For the above reasons, the Court concludes that the application of the exclusionary rule in the instant case constituted a disproportionate restriction on the applicant's right of access to a court. There has accordingly been a violation of Article 6(1) of the Convention."

This decision has been subjected to judicial and extra-judicial criticism. Although Counsel on both sides gave us an overview of the views expressed it is not necessary, in my view, for the purposes of this appeal to enter this arena. Since the ECHR decision the House of Lords has recognised "that extreme care (has) to be taken in striking out claims in this confused and developing area of the law" (Barrett -v- London Borough of Enfield [1999] 3 WLR 79 per Lord Browne-Wilkinson at page 84H). Later he said:

"In the view of the Strasbourg Court, apparently, the applicability of such exclusionary rule has to be decided afresh in each individual case. If this is not done then it is impossible to determine whether the public interest in an efficient police force is or is not proportionate to the seriousness of the harm suffered by the plaintiff in the individual case: see paragraph 150. On these grounds, the Strasbourg Court held that the English Court had breached Article 6 by striking out the claim made by the Osmans against the police without hearing any evidence by reference to which the proportionality of the rule in that particular case could be judged. The court said that the police had been granted a "blanket immunity" which was disproportionate and therefore an unjustifiable restriction on the Osmans' right of access to the court. The Osmans were entitled to have their case against the police determined in deserving cases …"

And later at page 85G-86A:

"In view of the decision in the Osman case it is now difficult to foretell what would be the result in the present case if we were to uphold the striking out order. It seems to me that it is at least probable that the matter would then be taken to Strasbourg. That court, applying its decision in the Osman case if it considers it to be correct, would say that we had deprived the plaintiff of his right to have the balance stuck between the hardship suffered by him and the damage to be done to the public interest in the present case if an order were to be made against the Defendant Council. In the present very unsatisfactory state of affairs, and bearing in mind that under the Human Rights Act 1988 Article 6 will shortly become part of English law, in such cases as these it is difficult to say that it is a clear and obvious case calling for striking out … for these reasons in my judgment this action should proceed to trial and when all the facts are known the difficult issues of law which arise maybe confronted in the light of real, as opposed to hypothetical facts. In the meantime one can only hope that the law applicable under Article 6 is further interpreted" (i.e. in Strasbourg).

In the instant case the learned Judge posed the question: In the light of Osman and Barrett must the matter go to trial? He observed that "in no case since Barrett, as far as I am aware, has the Court struck out an action on the basis that it is not just and reasonable to impose a duty of care." He concluded:

"4. The positions of L and P are different. In L's case, the public policy considerations may be thought to be more finely balanced. There is arguably a special relationship. There is a public interest in possible victims of child abuse being properly interviewed and the offender arrested and successfully prosecuted. An interview as abusive as this would be against the public interest. To discourage such an interview would be in the public interest. …

8. Without Osman and Lord Browne-Wilkinson's comments in Barrett, I would have felt able to strike these cases out. I would have found in both these cases, that the public policy arguments in favour of so-called immunity were compelling.

Mr Edward Faulks QC for the Respondent in an impressive argument submitted that even if either or both of the Appellants could establish a relationship of proximity with WPC Grey the learned Judge ought to have struck out both claims in negligence on the ground that it was not fair just and reasonable to impose a duty of care. Goldring J. should not have felt constrained from striking out the claims but for the ECHR decision in Osman and the speech of Lord Browne-Wilkinson in Barrett. The decision of the ECHR, when correctly interpreted, does not preclude a claim being struck out if the law is clear. The House of Lords has clearly established that no duty of care is owed by the police when they are investigating crime.

Having referred, inter alia to an article "Human Rights and the House of Lords" (1999) 69 MLR 159 by Lord Hoffman, Leading Counsel submitted that the ECHR decision is itself flawed and of no effect because Article 6 had no application; it is concerned with matters of procedure and not of substance. In the civil sphere it is concerned with ensuring that the parties have access to the courts to have their private law rights determined - it is not concerned with the substantive content of those rights. In a further written submission it is stated:

"The ECHR appear to have misunderstood English law, in that they considered that there was a general tort of negligence which was established whenever foreseeability and proximity were made out. They do not appear to have appreciated that the tort arises only in specific duty of care situations and that the question of whether or not it is fair, just or reasonable to impose a duty of care is not a procedural immunity but a pre-requisite to the existence of a tort at all."

Mr Faulks also contended that even if the ECHR were correct to hold that the fair just and reasonable test was an exclusionary rule which therefore brought Article 6 into play it is possible to determine the issue of "fair just and reasonableness" on a striking out application (per dicta of Lord Woolf in Kent -v- Griffiths [2000] 2 WLR 1158 at 1169E-F etc.). The House of Lords have determined in Hill that no duty of care is owed by the police in relation to the type of activity about which complaint is made in this case. Even on an Osman analysis, there are no additional countervailing policy reasons which would merit the imposition of a duty of care. In other words, an application of the principles enunciated in Hill is not disproportionate to the facts of this case. Moreover the decision does not call into question the English striking out procedure. There would not appear to be any reason why competing policy considerations cannot be determined on a strike out application.

I have given anxious consideration to Mr Faulks's powerful argument and with the benefit of reflection I have found it even more convincing. However, I have come to the conclusion that the learned Judge was correct to approach the matter on the basis that it would be an inappropriate exercise to hold that it was not fair just and reasonable to impose a duty of care on the basis of assumed facts in the pleadings. This, to my mind, is so even if one assumes that Article 6 was of no effect in Osman, the passages at paragraphs 151-4 cited above make this clear. Moreover, Lord Browne-Wilkinson subsequently made it clear when giving guidance that following Osman extreme care had to be taken in striking out claims in this confused and developing area of the law. Moreover, different policy considerations could arise in deciding whether it is fair just and reasonable to impose a duty of care to either [L], or [P], or both, when the officer was conducting an interview with [L], or on a quite separate occasion, when reporting the contents of the interview to a superior officer. Finally, the claim raises issues as to whether the matters complained of constituted a violation of Article 8 of the convention under sections 7(1)(a) and 8 of the HRA 1998. I am therefore satisfied that the determination of stage 3 of the Caparo test must await trial when the balancing exercise can best be carried out of the policy/public interest considerations against those which support the imposition of a duty of care. In my judgment, both claimants are entitled to access to the Court to enable them to pursue their arguable substantive rights, and, if made out, that they have been arguably breached.

The Claim of Misfeasance in a Public Office

In reaching his conclusion that the claim of misfeasance should not be struck out the learned judge took account of HHJ Kenny's findings in this regard. As already explained we declined to look at the judgment because WPC Grey was not a party to those proceedings. It is therefore appropriate only to consider the rest of the pleading :

"5.1

[omitted]

5.2 The plaintiffs will contend at the trial of this action that Sandra Sullivan and WPC Grey were actuated by malice (in the sense of an intention to injure) towards the second (plaintiff)as a result of which the second plaintiff and/[L] have suffered loss and damage.

5.3 In the alternative both Sullivan and Grey knew that their acts were unlawful. They knew and had actual knowledge that in manipulating the contents of the said interviews, making grossly misleading statements as to their contents and/or by fabricating against the second plaintiff that :

(i) They had no power to act in that way, by either statute or at common law, or :

(ii) alternatively suspected they had no power to act but failed to ascertain, or failed to take such reasonable steps as an honest and reasonable social worker/police constable would have taken to ascertain the true position.

5.4 In the premises both Sullivan and/or Grey knew that their actions would probably injure the 2nd plaintiff and/or [L]."

This tort was comprehensively examined by the House of Lords in Three Rivers DC the Governor and Company of Bank of England (2000) 2 WLR 1220. Lord Steyn at 1230H-1236A sets out the elements of the tort. Following his analysis two forms are identified and pleaded to embrace :

(a) Targeted malice, where a public officer engages in conduct intended to injure the claimant ;

(b) where a public officer knowing that he has no power to do the act complained of and that the act will probably injure the claimant. There is no honest belief in the lawfulness of the act.

The essence of the tort is that it is concerned with a dishonest abuse of power. Not every breach of duty or tort committed by a public officer will amount to misfeasance of public office. Mr Faulks submitted that neither claimant has any real prospect of establishing the tort against WPC Grey. On the face of the report which she submitted to her superior (referred to in paragraph 2.14 of the pleading supra) she recommended that no proceedings be brought against the second claimant. If the learned judge had correctly applied the requisite test he would have come to the conclusion that there was no real prospect of establishing misfeasance under either form in which it is pleaded.

Mr Edis submitted that the targeted abuse of power was against the father. Having decided that there was insufficient evidence to found criminal proceedings the WPC nevertheless fabricated or misrepresented the evidence which she had with intent to injure the father. Alternatively knowing that she had no power to perform as she did she did so in the knowledge of, or with reckless indifference to the probability of causing injury to the claimant. Leading counsel acknowleged that the pleading does not assert targeted malice against [L] but submitted that the officer was reckless as to whether [L] would be injured in the process. Her malicious conduct did in fact injure not only its target but also [L]. There is no rule of law which holds that the target of such conduct can sue but that others forseeably and recklessly caught up in the crossfire cannot. Alternatively [L] has a direct claim of the second type. In conducting an abusive interview of [L], Grey exceeded her power knowing that such excess of power would probably injure her. Her behaviour was clearly dishonest ; there is no statutory or common law power to fabricate evidence, she must have known that it was unlawful to do so.

In Bennett v. The Commissioner of Police of the Metropolis, 10 Admin. L. R. 245 at 254 Sir Richard Scott V-C stated :

"Actions against the police for assault in using excessive force in effecting an arrest or interrogating a suspect can be brought. Why should an action for misfeasance in public office not be brought? I can see no reason why not. The Police and the CPS, like everyone else, are subject in the discharge of their duties to the rule of law. There is no public interest that requires them to be afforded immunity against actions based on malicious or knowing abuses of their powers."

In my judgment, the learned judge was right not to strike out this claim. The pleading encapulates a legitimate cause of action based on the particular circumstances alleged. This is a matter which should proceed to trial. It would be illogical to allow the action in negligence to proceed and, at the same time, to strike out the claim for misfeasance on the basis that there was no real prospect of success.

The Claim is based upon Conspiracy to injure

The claim is pleaded thus :

"5.1(sic) on a date between 10 April 1990 and 28 April 1990 Sandra Sullivan and WPC Grey conspired together to injure the second plaintiff. The predominant purpose of the said conspiracy was to inflict harm upon the second plaintiff by fabricating evidence against him which was designed to achieve his conviction in a criminal court and/or a finding in a civil court that he had sexually abused [L]. It was reasonably foreseeable that by reason of the said conspiracy [L] would suffer loss and damage."

Thus the allegation of conspiracy relates not to the interview itself but to the subsequent misrepresentation of its contents. Mr Faulks contended that the form of the tort requires proof that the dominant purpose of the concerted action of Sullivan and Grey was to injure the father. The claim by the second plaintiff that WPC Grey had such a purpose has no realistic prospect of success when judged in the light of the report referred to at paragraph 2.14 of the pleading, still less does such a claim by [L] have any such prospect. However reprehensibly Sullivan may have acted, or be found to have acted by the trial judge, as there is no real evidence to incriminate Grey the allegation of conspiracy must fall away.

I am unable to accept this argument. If the conclusion on misfeasance is correct it follows that there is an arguable case in conspiracy. It is difficult to accept that fabrication of evidence was as a result of a misunderstanding or an error. It is a matter for evidence at trial as to whether there was a conscious decision dishonestly to misrepresent the content of the interview. It may be that one of the alleged conspirators will be found not to have been a party to a joint dishonest enterprise. However on the face of it the predominant purpose of their joint behaviour was to establish that sexual abuse had taken place, when in fact no evidence of sexual abuse was established through the interviews of either the daughter or the father. In the circumstances alleged it was reasonably foreseeable that the appellants would as a result suffer harm, loss and damage. Moreover, if the tort is made out, there is no reason in principle, why [L] cannot sue for damage forseeably sustained by her as a result of the tortious action designed to injure her father. Consequently this is not a matter for striking out but for determination at trial.

Witness Immunity

It has long been considered that those participating in legal proceedings must be given a degree of immunity to ensure that priority is given to the independence and proper functioning of those proceedings. Witnesses have immunity both in relation to evidence given in Court and work on the evidence which is preliminary to its presentation in Court. Accordingly the doctrine of witness immunity applies where the statement or pre-trial conduct is such that it can be fairly said to be part of the process of investigating a crime or a suspected crime with a view to a prosecution or a possible prosecution in respect in the matter being investigated (see Evans -v- London Hospital Medical College [1981] 1 AER 715 at 721B per Drake J; Silcott -v- Commissioner of Police [1996] 8 Admin LR 633 per Simon Brown LJ and Taylor -v- Director SFO [1999] 2 AC 177 per Lord Hoffman).

The immunity is recognised or justified on the ground that it is necessary for the administration of justice that investigators should be able to exchange information, theories and hypotheses among themselves and others assisting in the enquiry without fear of being sued (per Lord Hoffman in Taylor at 214A-215A).

Immunity is not absolute or a total bar to proceedings. It does not preclude actions founded on an abuse of process, such as malicious prosecution, even where an essential step in commencing the prosecution was a statement (see Taylor per Lord Hoffman at 215C-D and Lord Hope 219G-H).

Before Goldring J. Counsel then appearing for the Claimants referred to the time that elapsed between the interviews and the report to superiors (following which there was no prosecution); there was then a long period before the hearing before HHJ Kenny. He submitted that immunity should not in those circumstances attach to what was said and done such a long time before those proceedings. The learned Judge in rejecting this submission, said:

"[Immunity] either applies when the statement is made or it does not. That is when the assessment has to be made. There is in principle no difference between preparatory conduct and later conduct, such as the making of witness statements. Either at the time the statement is made proceedings are too remote for the immunity to apply or not".

Later:

"In the present case at the time of L's interviews, the evidence is that proceedings against [P] were realistically being contemplated. WPC Grey's report sets out this part of the background (presumably accurately). The police were involved on 6^th April 1990. There was a complaint by the mother on that day. There had been a complaint to the general practitioner. The first interview was on 10^th April, at L's home. The second interview was 11^th April. That was more formal. It was on video. It was plainly in contemplation of possible proceedings. No doubt that is why it took place at all. On 19^th April 1990, [P] was arrested at home. He was interviewed by two police officers (WPC Grey and DC Card), no doubt under caution. The caution would in terms have mentioned the possibility of proceedings. "[P] persisted to deny the offence throughout the interview." The justification for the policy of witness immunity in contemplation of criminal proceedings is plain. Lord Hoffman set it out in Taylor. It may be summarised shortly. It is to encourage persons to assist in the course of justice without fear of exposing themselves to litigation and to avoid subsequent re-litigation by subsequent collateral challenge."

And later:

"The justification for the immunity is clear and convincing. The authorities are clear. Once it is decided in the particular case that the statement is not too remote, it applies. If I am required to consider the justification of the immunity on the facts of the present case, I would find it applied. Considering what happened here as against the public interest justification for the immunity, I can see no reason why the immunity should not apply."

Since Goldring J's decision the question of witness immunity has been considered by the House of Lords on two occasions. Hall -v- Simons [2000] 3 WL 543 was primarily concerned with the issue of advocates immunity but also involved a consideration of immunity generally, including witness immunity. Lord Hope said at page 582G-H:

"Any immunity from suit must therefore be clearly justifiable. In terms of Human Rights law it will only be justifiable if it is designed to pursue a legitimate aim and then only if it satisfies the test of proportionality. If the restriction which the immunity imposes on the right of the individual is disproportionate to the aim sought to be achieved on grounds of public policy it will be incompatible with the right secured to the individual by Article 6(1) of the Convention. Although the common law and the Human Rights law tests are expressed in different language, they are both directed to the same essential point of principle that an immunity from suit is a derogation from a fundamental right which requires to be justified."

Closer to the issues of this case is the decision of their Lordships in Darker -v- Chief Constable West Midlands [2000] 3 WLR 747. Following their acquittal of conspiracy to import prohibited drugs the plaintiffs brought an action for conspiracy to injure and misfeasance in public office alleging that the police officers had fabricated evidence, wrongly instructed officers to act as agents provocateurs and manipulated a police informer. The claim was struck out on the ground of immunity. The Court of Appeal dismissed the appeal but the House of Lords allowed the appeal and held that public policy required in principle that those who suffered a wrong should have a right to a remedy; that, although the absolute immunity from action given in the interests of the administration of justice to a party or witness, including a police witness, in respect of what he said or did in court extended to statements made for the purpose of court proceedings and to prevent him being sued for conspiracy to give false evidence, public policy did not require it to be extended to things done by the police during the investigative process which could not fairly be said to form part of their participation in the judicial process as witnesses; that, in particular, the immunity did not extend to cover the fabrication of false evidence; and that, accordingly, the plaintiff's statement of claim should not have been struck out and the action should be allowed to proceed to trial.

Lord Hope said at page 752B

"The purpose of the immunity is to protect witnesses against claims made against them for something said or done in the course of giving or preparing to give evidence. It is not to be used to shield the police from action for things done while they are acting as law enforcers or investigators."

Lord Hutton said at page 773H:

"…There is no general principle that in order to prevent honest police officers from being vexed and harassed by unfounded actions brought by hostile persons whom they have arrested, they should be given absolute immunity in respect of their actions in carrying out their duties, and that in order to protect the many honest police officers from the vexation of rebutting unfounded allegations the immunity should also extend to protect the few dishonest police officers."

Mr Edis submitted that the learned Judge erred in law in reaching the decision which he did or in the alternative, if he was correct on the law as it then stood his decision is unsustainable in the light of the two decisions of the House of Lords.

Mr Faulks recognised that the decision in Darker has undoubtedly narrowed the scope of the witness immunity defence but it is still wide enough to cover the actions of the police officers in the instant case. The interviewing of a witness, whilst part of a police investigation in the broadest sense, is never the less primarily concerned with the obtaining of a witness's account with a view to subsequent court proceedings. This is a preliminary part of the judicial process. Section 96 of the Children Act 1989 and the delegated legislation thereafter permits such interviews to be admissible evidence. Thus the interview itself was potential testimony. This situation is closely analogous with that of the social worker and the psychiatrist in X -v- Bedfordshire County Council [1995] 2 AC 633. It is not analogous to the fabrication of evidence or the other conduct complained of in Darker. The boundaries of witness immunities should have a degree of certainty about them (per Lord Clyde in X (supra) at page 760g). The interviewing of prospective witnesses should be an activity which attracts immunity. Thus, notwithstanding the recent decisions and in their Lordship's House the Judge's decision should stand.

In assessing the effect of these decisions, the dicta cited and the submissions of leading Counsel I return to consider the precise nature of each claimant's case. The conduct complained of in respect of [L] consists of pressurising her in order to induce her to make false complaints and thereafter creating a dishonest document pretending that she had made a complaint of sexual abuse when she had not. None of this involved a statement by Grey of the evidence which she proposed to give. Further, as Mr Edis puts it, the whole point of the claim is that she was not (like the investigator in Taylor, supra) passing on what a witness had said; she was passing on what a witness had not said. The conduct complained of in respect of the father is the way in which the police (with the complicity of the social worker) made use of the video interview and the subsequent misrepresentation to trigger the subsequent unfounded family proceedings.

In my judgment there is no distinction in principle between the situation whether it is fair just and reasonable to impose a duty of care and whether it is proportionate to defeat a claim on the ground of witness immunity. In both situations each case must be determined on its own facts. It is arguable that in the circumstances pleaded in the statement of case the immunity should not be used to shield the police from suit while acting as law enforcers or investigators and if decided to the contrary, the immunity might be disproportionate to the public interest both under the common law and under the jurisprudence arising out of the Convention. As Lord Clyde said in Darker at page 763:

"The protection is granted to a witness in the interest of establishing the truth and to secure that justice may be done. But the witness is not immune from a charge of perjury and that possibility remains as a deterrent against an abuse of his position. Immunity from that would not serve the interests of justice in the case. So also before matters have reached the stage of trial the immunity should not be available to give protection for matter which is designed to defeat the ends of justice rather than to serve them."

In my judgment the allegations contained in the statement of case are capable of amounting to an abuse of the police's position. It is also arguable that the immunity should not be available to give the police the protection for matter which, on one view of the facts, was designed to defeat the ends of justice rather than to serve them by initiating or causing to be initiated the family proceedings based on groundless allegations of child abuse of L.

I have come to the conclusion that in the light of the recent authority which was not available to the learned Judge his decision to strike out the claims on the ground of witness immunity cannot be sustained and the case should now proceed to trial for determination of this issue on the particular facts as found by the trial Judge.

Conclusion

As a result, I would allow the appeal of both appellants, set aside the learned judge's Order striking out the action and would allow the action to proceed to trial.

LORD JUSTICE KEENE:

I agree.

MR JUSTICE MAURICE KAY:

I also agree.

ORDER: Appeal allowed; second respondent to pay appellant's costs on the standard basis; Legal Services Commission assessment; decision on application to appeal to the House of Lords deferred. (Order does not form part of approved Judgment)