Akenzua v Secretary of State for the Home Department

Misfeasance in public office can be actionable where an unlawful exercise of public power is undertaken with subjective recklessness as to both illegality and the probability of harm, even if the eventual victim is not identifiable when the act occurs. The claimant need not show that the defendant foresaw harm to a specified individual or a pre-existing class. It is sufficient that harm of the relevant type was contemplated to one or more persons. References to an individual or class are expansive and do not impose a separate proximity requirement. Personal injury or death is not excluded merely because earlier cases concerned property. A properly arguable claim on this basis should not be struck out.

The administrators of Marcia Zena Laws’ estate alleged that Home Office and Metropolitan Police officials acted in misfeasance in public office by arranging or maintaining the liberty of Delroy Denton, a known dangerous criminal, while using him as a police informer. Denton later murdered Laws.

The Central London County Court, on 26 August 1999, struck out the claim, holding that the pleaded risk was one to the public generally and that there was insufficient proximity between the victim and the alleged wrongdoers. The appeal concerned whether the claim was legally arguable, particularly where the eventual victim was not identifiable when the alleged misfeasance occurred.

1. Disposition. The Court of Appeal unanimously allowed the appeal. The claim, as presently pleaded and subject to clarification, was not liable to be struck out.
2. Governing principles. The court applied the House of Lords’ formulation in Three Rivers District Council v Governor and Company of the Bank of England [2000] 2 WLR 1220. In the untargeted form of the tort, the public officer must have acted subjectively recklessly both as to the illegality of the act and as to the probability of harm of the relevant type. Personal injury and death are not excluded as forms of damage.
3. Victim or class. The references in Three Rivers to an individual or class were not a freestanding requirement. They were a practical means of connecting the contemplated harm with the wrongdoer’s state of mind. The relevant question was whether the officer contemplated harm to one or more persons, not whether the eventual victim or a pre-existing class could be identified at the time. A murder by a person whose violent proclivities were known could therefore be within the relevant harm, whereas an unrelated accident, such as careless driving, would not be.
4. Strike-out and police allegations. Even if the conclusion did not necessarily follow from Three Rivers, the issue was at least open and unsuitable for final determination on a strike-out application. Instigating another officer’s breach of duty would not alone constitute misfeasance. However, allegations that police officers knowingly procured the release of a dangerous criminal, or participated in related unlawful acts, were sufficient to pass the pleaded objection. The pleading required a spring-clean, and the allegation of dishonesty was to be understood as knowledge that the acts were unlawful or improper.
5. Additional observations. Simon Brown LJ added that the negligence decision in K v Secretary of State for the Home Department [2002] EWCA Civ 983 illustrated the separate proximity requirement in negligence, but that proximity should not be imported into the graver tort of misfeasance.

1. Court of Appeal (Civil Division): allowed the appeal and held that the claim was not liable to be struck out.
2. Central London County Court: on 26 August 1999, His Honour Judge Hornby struck out the claim on the basis that, even accepting the pleaded facts, it could not succeed.