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

The Crown Prosecution Service generally owes no duty of care in negligence to those it prosecutes. Proximity and whether imposing a duty would be fair, just and reasonable must be considered together. The public interest in effective prosecution outweighs the case for individual compensation. Liability could encourage defensive prosecution and divert scarce resources from prosecuting crime. Distinguishing operational negligence from discretionary decisions would be impractical and would leave those consequences unresolved.

The general rule preserves the possibility of legal duties arising where the CPS voluntarily assumes responsibility to a particular defendant. Allegations presenting only the general duty question may be struck out where their legal unsustainability is plain and obvious.

Two defendants appealed against orders striking out their negligence claims against the Crown Prosecution Service. Each alleged that negligent handling of forensic evidence had prolonged his detention before the prosecution was abandoned.

Daniel McBrearty was prosecuted following the reported discovery of explosive residue on hand swabs. He alleged that the CPS should have established promptly that innocent contamination could not be excluded and should have discontinued the prosecution earlier. He spent 85 days in detention before the CPS offered no evidence. His claim against the Ministry of Defence had been struck out without appeal, his police claim had been withdrawn, and his alternative claim against the CPS for malicious prosecution had also been withdrawn.

Osama Elguzouli-Daf was prosecuted for rape and buggery. Forensic testing excluded him as a source of semen recovered from the complainant. He alleged negligent delay in obtaining, processing or communicating the results and spent 22 days in custody before discontinuance. His claim against the police was outside the strike-out proceedings.

On 8 October 1993, Deputy High Court Judge Patrick Bennett QC struck out both negligence claims against the CPS under Order 18, rule 19(1)(a). The common question on appeal was whether the CPS owed a duty of care to those it was prosecuting.

1. Both appeals were dismissed unanimously. Steyn LJ delivered the principal judgment. Rose LJ agreed, and Morritt LJ expressly agreed with Steyn LJ’s reasons while giving additional reasons of his own.

2. Per Steyn LJ, the duty question required a pragmatic assessment by analogy with established categories of liability. The relevant considerations were foreseeability, proximity and whether imposing a duty would be fair, just and reasonable. Foreseeability could be assumed in the appellants’ favour. Proximity and the fairness of imposing liability were interdependent in this context.

3. The CPS was an independent public prosecution agency acting for the community. Its public role informed the common law assessment. The policy reasoning in Hill v. Chief Constable of West Yorkshire, [1989] AC 53, supported an analogy against liability. A duty could inhibit prosecution, encourage defensive decisions and divert lawyers’ time and scarce resources into avoiding and defending negligence claims. Those considerations outweighed the argument for compensation for individuals injured by carelessness.

4. The absence of a negligence duty owed by lawyers in hostile civil litigation to the opposing party supplied a further, qualified analogy. A prosecutor’s position as a minister of justice and public law duty of fairness did not establish a private law damages remedy. The proposed distinction between operational and discretionary lapses was impractical and would leave the adverse consequences of liability unresolved.

5. The general ruling preserved cases involving a voluntary assumption of responsibility to a particular defendant. Welsh v. The Chief Constable of Merseyside Police, [1993] 1 AER 692, concerned such an assumed responsibility. Steyn LJ rejected the deputy judge’s view that it was wrongly decided, but distinguished it because neither appeal involved that feature.

6. Morritt LJ additionally relied on the statutory allocation of prosecutorial duties under the Prosecution of Offences Act 1985. Neither appellant alleged an actionable breach of statutory duty. He also considered the danger that negligence liability would supplant the distinct requirements of malicious prosecution and misfeasance in public office. A duty addressing prolonged detention could not be confined to that consequence and would extend to reasonable care in instituting and conducting criminal proceedings.

7. Steyn LJ stated, alternatively, that the same policy reasons would justify immunity if a duty existed. The question of the CPS’s vicarious liability for individual prosecutors was left undecided. Since the appeals raised a pure question of law and the claims were plainly unsustainable, striking them out was appropriate.

• Court of Appeal: On 16 November 1994, unanimously dismissed both appeals and upheld the striking out of the negligence claims against the CPS.
• High Court, Queen’s Bench Division: On 8 October 1993, Deputy High Court Judge Patrick Bennett QC struck out both negligence claims against the CPS under Order 18, rule 19(1)(a), holding that no duty of care was owed to those it prosecuted.