Crawford v Jenkins

Witness immunity protects a complaint and supporting statements made to the police about conduct which might lead to prosecution. Where no court proceedings follow, the immunity bars a damages claim alleging that the complainant maliciously procured an arrest. The recognised exception for malicious prosecution and analogous torts concerns abuse of court process.

The immunity also applies where protected statements are pleaded as part of a course of conduct under the Protection from Harassment Act 1997. Conduct constitutes harassment only if, viewed objectively and in context, it is targeted at the claimant, calculated to cause alarm or distress, and oppressive and unacceptable. Merely unattractive or unreasonable conduct is insufficient.

The claimant was arrested twice after his former wife complained to the police that his attendance at their daughter’s school breached court orders. He was detained for just over four hours, but no prosecution followed. He claimed that the defendant had maliciously procured his false imprisonment and had pursued a course of conduct amounting to harassment under the Protection from Harassment Act 1997.

The Central London County Court held that the complaint and supporting statements were protected by witness immunity. It also struck out the harassment claim based on two earlier text messages. The claimant appealed against both conclusions. The principal issues were whether witness immunity barred the claims arising from the police complaint and whether the two text messages were capable of constituting harassment.

1. Appeal dismissed. The defendant’s initial complaint and supporting statements to the police fell within witness immunity. That immunity extends to out-of-court statements forming part of the investigation of possible crime, including the initial complaint: Westcott v Westcott [2008] EWCA Civ 818 applied.
2. The claim against the defendant was not an ordinary false imprisonment claim because she had not detained the claimant. It alleged malicious procurement of arrest. The exception recognised for malicious prosecution and analogous torts applies where the defendant has invoked or abused court process. Roy v Prior [1971] AC 470 concerned an arrest under a bench warrant procured through a judicial application. It did not govern an arrest by the police which was neither preceded nor followed by proceedings.
3. Where court process has been invoked, a distinct tort may be necessary because the court cannot compensate the claimant for loss already caused by its order. Where the police make an arrest and no proceedings follow, the police may in principle answer for an unlawful detention. There is consequently no sufficient reason to remove the complainant’s statements from witness immunity. The immunity therefore barred the malicious-procurement claim.
4. Witness immunity also barred reliance on the police complaint and supporting statements as acts within a statutory course of conduct. A harassment claim based upon the making of statements is substantively based upon those statements. The policy protecting freedom of communication in the investigation and judicial process applies as it does in defamation. Section 1(3)(a) of the Protection from Harassment Act 1997 is not an exhaustive statutory substitute for witness immunity. The contrary obiter reasoning in Halcyon House Ltd v Baines [2014] EWHC 2216 (QB) was rejected.
5. The two remaining text messages were incapable of amounting to harassment. Even assuming that they were conduct on at least two occasions, their language was not objectively calculated to cause alarm or distress and was not oppressive or unacceptable when assessed in context. The statutory distinction is between conduct which is merely unattractive or unreasonable and conduct sufficiently oppressive to sustain liability.

Sharp LJ and Beatson LJ agreed with Sir Timothy Lloyd.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the declaration that the police complaint was protected by witness immunity and upheld the striking out of the remaining harassment claim.
2. Central London County Court: Her Honour Judge Baucher declared that the defendant’s complaint to the police was protected by immunity from suit. She held that immunity defeated both the malicious-procurement and harassment claims arising from the complaint, and struck out the harassment claim based upon the two text messages.