Thomas & Anor v Chief Constable of Cleveland

Misfeasance in public office requires bad faith. The tort has two forms: targeted malice, where public power is exercised with an improper or ulterior motive and intent to injure; and knowing excess of power, where the officer knows that the act is unauthorised and will probably injure the claimant. Both forms involve abuse of public power in bad faith. Procedural irregularity, poor investigation, charging decisions or conduct unconnected with injury do not establish the tort without the required state of mind. Where the trial findings reject bad faith and dishonesty, the claim fails.

The claimants sued the Chief Constable after criminal proceedings ended in their acquittal. They alleged malicious prosecution and misfeasance in public office. The trial judge dismissed the action and rejected both allegations. Only the misfeasance issue was pursued on appeal, with permission limited to that head of claim. The central question was whether the trial judge had applied the correct legal test and whether the pleaded complaints could amount to misfeasance despite the absence of a finding of bad faith.

Lord Justice Kennedy delivered the judgment, with Lord Justice Mummery and Lord Justice Laws agreeing.

1. Disposition. The appeal was dismissed with costs. The appeal was confined to misfeasance in public office.
2. Applicable test. The court applied Three Rivers District Council and Others v Governor and Company of the Bank of England [2000] 2 WLR 1220. Misfeasance has two forms: targeted malice, involving an improper or ulterior motive and an intention to injure; and knowingly doing an unauthorised act while appreciating that it will probably injure the claimant. The forms share the abuse of public power in bad faith.
3. State of mind. Bad faith was an essential ingredient of the tort. The trial judge had rejected bad faith and dishonesty. Those findings meant that the misfeasance claim could not succeed, and the Court of Appeal found no legal error.
4. Individual complaints. The decisions concerning charges, immunity, witness treatment and repayment of money did not establish misfeasance. The repayment of money did not support an inference that evidence had been bought. The identification procedure was unfortunate in some respects, but the claimants had refused to participate in an identification parade. Code D of the Police and Criminal Evidence Act required the identification officer to know the first description given, not every subsequent description. The court therefore did not share the trial judge’s disquiet on that point.
5. The remaining allegations either were unpleaded, unsupported by evidence, or incapable of causing the necessary injury. The appeal was accordingly dismissed.

• Court of Appeal (Civil Division): Heard the claimants’ appeal from the order of His Honour Judge Michael Taylor. Permission was limited to misfeasance in public office. The appeal was dismissed with costs: [2001] EWCA Civ 1552.
• Trial court: On 9 December 1999, Judge Taylor dismissed the action and rejected the allegations of malicious prosecution and misfeasance.