Elguzouli-Daf v Comr of Police of the Metropolis (McBrearty v Ministry of Defence)

The Crown Prosecution Service generally owes no common-law duty of care in negligence to a person whom it prosecutes. Although harm from an unduly continued prosecution may be foreseeable, the relationship and the requirement that a duty be fair, just and reasonable must be assessed in light of the CPS’s public function.

A duty would inhibit prosecutorial judgment, divert scarce resources, and encourage defensive practices. It would also inappropriately supplement established remedies for deliberate abuse of prosecutorial power. The conclusion applies to operational as well as discretionary acts. A different position may arise where the CPS has, by its conduct, assumed responsibility to a particular defendant.

The appellants brought negligence claims against the Crown Prosecution Service after prosecutions against them were discontinued. Mr McBrearty had spent 85 days in custody before the CPS offered no evidence. Mr Elguzouli-Daf had spent 22 days in custody before forensic evidence excluded him.

Each alleged that the CPS had negligently failed to obtain, process or communicate material forensic information promptly, thereby prolonging detention. A Deputy High Court Judge struck out the claims on 8 October 1993 under Order 18, rule 19(1)(a), holding that the CPS owed no duty of care to persons it prosecuted.

The common issue on appeal was whether the CPS owed such a duty, including in relation to the institution or continuation of criminal proceedings.

The Court of Appeal unanimously dismissed both appeals. Steyn LJ gave the leading judgment, with which Rose LJ agreed. Morritt LJ reached the same result and agreed with Steyn LJ’s further reasons.

1. Applying the approach in Caparo Industries PLC v Dickman [1990] 2 AC 606, the court was prepared to assume foreseeability. It held, however, that proximity and the requirement that a duty be fair, just and reasonable could not be separated on these facts. Their combined effect was against recognising a duty.

2. The CPS is a public law enforcement agency acting for the public interest. A negligence duty owed to a defendant would inhibit prosecutorial judgment, encourage defensive conduct and divert time and resources from prosecuting crime. The policy reasoning in Hill v Chief Constable of West Yorkshire [1989] AC 53 was a strong analogy, and the case against such a duty was at least as strong for a prosecuting authority.

3. The court also treated the established limits on duties owed by opposing lawyers in hostile civil litigation as relevant, while recognising that a prosecutor is a minister of justice. Existing private-law remedies for malicious prosecution and misfeasance in public office addressed deliberate abuse of power. A negligence action should not simply supplement those distinct torts.

4. No workable distinction could be drawn between operational and discretionary prosecutorial failures. The general conclusion did not preclude duties arising from a particular voluntary assumption of responsibility. Welsh v Chief Constable of Merseyside Police was confined to that special situation and did not assist either appellant.

5. Steyn LJ added, alternatively, that if a duty existed the CPS would be immune from negligence liability for the same policy reasons. The pure legal issue was suitable for determination on a striking-out application. The statements of claim against the CPS were therefore properly struck out.

• Court of Appeal: dismissed both appeals and affirmed the striking-out of the negligence claims against the CPS: [1994] EWCA Civ 4.
• High Court of Justice, Queen’s Bench Division: the Deputy High Court Judge struck out the claims against the CPS on 8 October 1993, holding that no duty of care was owed to those prosecuted.