Darker and Others v Chief Constable of The West Midlands Police

The House of Lords considered the scope of the absolute immunity afforded to witnesses and to persons participating in the preparation of evidence. The court reaffirmed the core immunity for statements and acts done in the witness box and for proofs of evidence prepared for use in court, but held that the immunity does not extend so far as to protect police conduct that cannot fairly be said to be part of preparing or giving evidence (for example, deliberate fabrication or planting of evidence or other investigatory acts done to procure false evidence). The court applied public policy considerations, balancing the need to protect the administration of justice against the principle that wrongs should not be without remedy, and concluded that absolute immunity should be confined to that which is strictly necessary for the administration of justice.

This was an appeal from an order striking out a claim for damages brought by persons whose criminal trial had been stayed for abuse of process. The claimants alleged conspiracy to injure and misfeasance in public office by police officers involved in an undercover operation and in preparing the prosecution case. They alleged, among other matters, fabrication of statements, manipulation of an informer, and instruction of undercover officers to act as agent provocateur. The Chief Constable relied upon the absolute immunity attaching to witnesses and to preparatory statements as a basis for striking out the claim.

Nature of the claim and relief sought:

• The claimants sought damages in tort for conspiracy to injure and misfeasance in public office arising from alleged misconduct by police officers during investigation and in preparation for trial.

Issues framed by the court:

• What is the scope of the absolute immunity that protects witnesses (and related participants) for things said or done in relation to court proceedings?
• Does that immunity extend to police acts in the investigatory stage that are alleged to include fabrication or planting of evidence and other conduct not properly part of preparing or giving evidence?

Reasoning and outcome:

The Law Lords reviewed the historical foundation of witness immunity and prior authorities (including Watson v McEwan, Evans v London Hospital, Silcott, Taylor v Serious Fraud Office and others). They accepted that immunity is necessary to protect the administration of justice and to secure freedom of expression in the judicial process, and that it extends to proofs of evidence and to some out-of-court statements made as part of investigating a possible prosecution. However, they drew a principled distinction between statements or reports prepared for use in court and investigatory or enforcement acts that are extraneous to that function. On that basis the majority concluded that alleged fabrication of evidence or acts done in the course of investigation to procure false evidence fall outside the absolute witness immunity and should not be struck out as being barred. The House therefore allowed the appeal and remitted the action to proceed in the High Court for trial on the facts.

Appeal allowed. The House of Lords held that absolute witness immunity covers statements made in court, proofs of evidence and statements or reports out of court that can fairly be said to be part of investigating a crime with a view to prosecution, but does not extend to investigative or enforcement conduct that cannot fairly be characterised as preparation or presentation of evidence (for example deliberate fabrication or planting of evidence). Accordingly the strike-out was wrong and the claims should proceed to trial.

The claim was struck out by Maurice Kay J. (27 September 1996). The Court of Appeal (Auld L.J. and others) dismissed the appellants' appeal, relying upon the broad immunity approach (see Silcott). The House of Lords allowed the appeal and remitted the action to the High Court ([2000] UKHL 44; [2000] 3 WLR 747).