Silcott v Commissioner of the Police for the Metropolis

Absolute immunity for parties and witnesses extends beyond evidence given in court. It covers statements, evidence preparation and conduct forming part of the investigation or preparation of a possible prosecution, including fabricated interview records and a subsequent section 17 enquiry. The immunity does not bar claims for malicious abuse of the court’s process, including malicious prosecution and malicious arrest. A claimant cannot evade the rule by pleading conspiracy or misfeasance in a public office where those claims arise from protected conduct. Malicious prosecution remains available, subject to its own requirements.

The appellant had been convicted of murder and riot. His convictions were later quashed as unsafe and unsatisfactory. He then brought proceedings against the Commissioner, pleading conspiracy to pervert the administration of public justice, misfeasance in a public office and malicious prosecution.

Master Eyre struck out the first two causes of action. Drake J dismissed the appellant’s appeal. The malicious prosecution claim remained. The central issue before the Court of Appeal was whether alleged fabrication of interview notes, related conduct and later assertions about those notes were protected by absolute immunity, or whether they fell outside the immunity because they involved false evidence, conspiracy or misfeasance.

1. Unanimous disposition. Lord Justice Simon Brown gave the leading judgment. Lord Justices Waite and Neill agreed. The appeal was dismissed.
2. Scope of the immunity. The rule protects parties and witnesses from civil actions based on things said or done in the ordinary course of judicial proceedings. It extends to the preparation of evidence as well as its presentation. The Court relied on the principles stated in Dawkins v Lord Rokeby [1873] L.R. 8 Q.B. 255 and Marrinan v Vibart [1963] 1 Q.B. 528.
3. The immunity applies in criminal matters where the conduct is fairly part of investigating a crime, preparing for a possible prosecution or presenting evidence. There was no relevant qualitative distinction between fabricating written interview notes, verballing an accused, planting an object so that another person could give evidence about it, or falsely claiming to have found the object. The immunity also covered the later enquiry under section 17 of the Criminal Appeal Act 1968.
4. Limits and attempted circumvention. Immunity does not extend to malicious abuse of the court’s process. Malicious prosecution and malicious arrest therefore remain actionable even where the alleged abuse involved giving evidence. The Court applied the reasoning in Roy v Prior [1971] A.C. 470 and Martin v Watson [1995] 3 WLR 318. Conspiracy and misfeasance could not be used to avoid the immunity where they were founded on the same protected conduct. The Court accepted that the rule could sometimes leave no civil remedy where the information supplied did not determine the prosecution, but considered that consequence less anomalous than allowing such collateral claims.
5. Lord Justice Neill added that the immunity must be broad enough to protect potential witnesses from the fear of costly litigation, including in relation to pre-charge statements and the collection or consideration of evidential material. The formal order was dismissal with costs, legal aid taxation of the appellant’s costs, and a 28-day extension for service of the defence pending any appeal.

1. Court of Appeal (Civil Division): dismissed the appellant’s appeal and upheld the striking-out of the conspiracy and misfeasance claims.
2. Queen’s Bench Division, Drake J: dismissed the appeal from Master Eyre’s striking-out order.
3. Master Eyre: struck out the claims for conspiracy to pervert the administration of public justice and misfeasance in a public office; the malicious prosecution claim remained.