Darker v Chief Constable of the West Midlands Police

Absolute witness immunity protects evidence given in court and statements or acts directly involved in giving, or genuinely preparing to give, evidence. It may extend to proofs of evidence, relevant investigative communications and genuine expert examination intended to produce evidence.

It does not shield police conduct performed as law enforcers or investigators merely because its consequences may later feature in evidence. Deliberately fabricating or planting evidence is an independent, non-testimonial act. Later false testimony cannot retrospectively immunise it.

Because absolute immunity restricts access to the courts, it must extend no further than is necessary for the administration of justice. A claim alleging non-testimonial fabrication or investigatory misconduct cannot be struck out on witness-immunity grounds where the facts needed to define the conduct remain unresolved.

The appellants had been prosecuted following an undercover police operation. Their criminal trial was permanently stayed for abuse of process after failures in disclosure for which the police were responsible.

They subsequently claimed damages from the Chief Constable for conspiracy to injure and misfeasance in public office. They alleged, among other matters, that police officers had fabricated statements and evidence, encouraged an informer to fabricate evidence, used agents provocateurs and manipulated disclosure. Maurice Kay J struck out the action on the ground of absolute witness immunity, and the Court of Appeal dismissed the appellants’ appeal.

The issue before the House in Darker v Chief Constable of the West Midlands Police was whether the immunity associated with witnesses extended beyond evidence and its genuine preparation to allegedly wrongful acts committed by police officers while investigating crime or fabricating evidence.

1. Disposition. The House unanimously allowed the appeal. The striking-out order was set aside and the action was remitted to proceed in the High Court.

2. Per Lord Hutton, in the principal speech, with which Lord Hope expressly agreed: absolute witness immunity protects evidence given in court, proofs of intended evidence and conduct genuinely undertaken to prepare evidence. It also prevents the immunity being evaded by recasting a complaint about evidence as conspiracy or another tort. The immunity nevertheless remains concerned in essence with giving or preparing to give evidence.

   A real distinction exists between the content of evidence, including a false statement by a witness, and an independent act which creates false evidence. Forging a confession, fabricating an interview note or planting an incriminating object does not become immune merely because a witness later refers to its supposed consequences. Genuine, though negligent, examination undertaken to prepare an evidential report may fall within the immunity; deliberate fabrication undertaken to produce false material does not.

3. Per Lord Hope: the immunity protects police officers when they perform the functions of witnesses or potential witnesses. It does not protect their earlier conduct as investigators or law enforcers where that conduct has an existence independent of the evidence later given about it. The broader approach in Silcott v Commissioner of Police for the Metropolis [1996] 8 Admin LR 633 went too far.

   Per Lord Mackay: the immunity is directed to statements made in court or during the preparation of evidence. Allegations which do not depend upon such statements, and which go beyond freedom of speech in or in preparation for a criminal trial, are outside its necessary scope.

   Per Lord Cooke and Lord Clyde: immunity attaches to the function being performed, rather than to the office held by the defendant. Conduct naturally belonging to investigation or detection is not transformed into protected testimonial conduct by a later evidential use. Absolute immunity must be kept within the limits strictly required by the administration of justice.

4. The reasoning in Evans v London Hospital Medical College [1981] 1 WLR 184 was accepted so far as it protected genuine preparation of an evidential report, but not as a general immunity for every act of collecting or considering material. Taylor v Serious Fraud Office [1999] 2 AC 177 concerned protected communications during an investigation; it did not establish immunity for fabricating or planting evidence.

   The pleaded allegations included conduct which might have occurred while the officers were acting as investigators and which was not necessarily grounded upon proposed testimony. It could not be decided without evidence that every allegation fell within witness immunity. Lord Hutton expressed no view on whether the allegations otherwise established actionable torts; only the immunity-based strike-out was determined.

1. House of Lords: In Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435, the House unanimously allowed the appeal, set aside the striking-out order and remitted the action to the High Court.

2. Court of Appeal: The appellants’ appeal was dismissed. The court held that the police officers’ alleged investigatory and preparatory conduct was covered by absolute witness immunity.

3. High Court: Maurice Kay J struck out the amended statement of claim and dismissed the action on 27 September 1996.