Smart v The Forensic Science Service Ltd

Witness immunity is a justified derogation from access to a court and must not extend beyond what the administration of justice requires. Its application may depend on the precise facts. A negligence claim should not be struck out where the conduct may concern the investigation, handling or alteration of evidence rather than the preparation or giving of testimony.

Permission for a late amendment requires a balance between the prejudice to each party, the significance of delay and the public interest in efficient justice. An assertion of irremediable prejudice requires evidential support. Questions whether a forensic service owed a duty of care or was a public authority should proceed to factual investigation where foreseeability and proximity are arguable and the relevant circumstances remain unresolved.

The appellant was convicted of possessing ammunition after the respondent’s forensic report incorrectly attributed a live cartridge from another police case to him. His conviction was later set aside when the mistake emerged. Documents subsequently disclosed showed unexplained alterations to exhibit references and a failure to disclose those alterations in the final report.

The Liverpool County Court struck out claims in negligence and under the Human Rights Act 1998. It held that witness immunity applied, that no duty of care was owed and that the respondent was not a public authority. During the appeal, the appellant sought permission to amend his claim to allege deceit.

The central questions were whether the late amendment should be permitted and whether the negligence and human-rights claims should remain struck out before the facts surrounding the handling and alteration of the exhibits had been investigated.

1. Appeal allowed and amendment permitted. The court unanimously permitted the appellant to plead deceit and restored the negligence and human-rights claims. Although the application was made very late and without a good explanation, the respondent produced no evidence that the delay had caused irremediable prejudice. The proceedings had not progressed beyond an application to strike out. The absence of any satisfactory explanation for the altered records made it just to allow the allegations to be investigated at trial.

2. Witness immunity could not justify summary disposal. Immunity protects testimony and may extend to the preparation of evidence intended for judicial proceedings. Its purposes include protecting witnesses from harassment and preventing collateral attacks on judicial decisions. However, it is inconsistent with the rule of law unless confined to what the administration of justice requires. Darker v Chief Constable of the West Midlands Police [2001] AC 435 established that the fabrication or creation of evidence may fall outside the immunity.

   The boundaries of immunity depend on the facts and could not be drawn before the circumstances of the exhibit alterations were known. The deceit claim would require the respondent’s witnesses to explain their conduct in any event, so immunity would neither prevent questioning nor avoid a collateral attack. The negligence claim therefore had to remain available pending factual findings.

3. The duty-of-care issue was fact-sensitive. Foreseeability and proximity could readily be satisfied. Whether imposing a duty was fair, just and reasonable depended particularly on the respondent’s nature and on how the cartridge came to be mislabelled. It was wrong to exclude at the strike-out stage the possibility that a person who interfered with an exhibit number owed a duty to the person against whom the exhibit would consequently be used.

4. The human-rights claim also required investigation. Whether the respondent was a public authority for the purposes of section 6(1) of the Human Rights Act 1998 could not safely be determined on the limited facts available. That issue was restored for determination with the other claims.

1. Court of Appeal (Civil Division): In Smart v The Forensic Science Service Ltd [2013] EWCA Civ 783, the court allowed the appeal, permitted the proposed deceit amendment and restored the claims in negligence and under the Human Rights Act 1998.

2. Liverpool County Court: His Honour Judge Wood QC struck out the negligence and human-rights claims. He held that witness immunity applied, no duty of care was owed and the respondent was not a public authority. No citation is stated in the judgment.