South Wales Police v Daniels & Ors

Absolute witness immunity is confined to statements made in evidence and limited extensions necessary to protect the judicial process. Conduct does not acquire immunity merely because it is intimately associated with the judicial phase of a prosecution.

The cause of action must be founded on the evidence or statement for immunity to apply. Deliberately or recklessly concealing or withholding material potentially helpful to the defence falls outside the rationale of immunity, as do fabrication and deliberate destruction of evidence.

Where the applicability of immunity depends on disputed facts, the court may permit an arguable pleading and determine immunity at trial. An appellate court may interfere with a case-management decision only where the judge misdirected himself, considered irrelevant matters, omitted relevant matters, or reached a decision outside the generous ambit of the discretion.

Three former police officers brought civil claims against the Chief Constable, including claims for malicious prosecution and misfeasance in public office. They alleged misconduct during the investigation and prosecution, including deliberate or reckless failures of disclosure, concealment or destruction of documents, improper contacts and continuation of an unfair prosecution.

A circuit judge refused several proposed amendments because he considered the alleged conduct protected by absolute immunity. Gilbart J allowed the claimants’ appeals in [2015] EWHC 228 (QB) and permitted the amendments. He also permitted amendments alleging that the prosecutions were motivated by a wish to assist the Chief Constable’s position in related civil settlements.

The Chief Constable appealed on abuse of process, the scope of witness immunity and appellate interference with the refusal of the settlement-related amendments.

1. Appeal allowed in part. The circuit judge had adopted an excessively broad conception of absolute immunity. Immunity is essentially concerned with statements made by witnesses when giving evidence and with limited extensions necessary to protect the freedom of evidence and the administration of justice. Conduct does not become immune merely because it is intimately associated with the judicial phase of criminal proceedings: Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 applied.

2. For immunity to apply, the action must be brought in respect of the evidence or statement. The proposed misfeasance claims were directed to the manner in which disclosure had been performed, rather than the content of an express or implied statement accompanying a schedule of unused material. The claims therefore did not fall within immunity merely because service of the schedule might communicate compliance with the Criminal Procedure and Investigations Act 1996 and the Civil Procedure Rules 1998.

3. The rationale excluding fabrication and deliberate destruction of evidence from immunity applied equally to deliberately or recklessly concealing or withholding material potentially helpful to the defence. At the interlocutory stage the Chief Constable had not shown that the alleged conduct clearly attracted immunity. The amendments were therefore properly permitted, subject to reconsideration by the trial judge after findings of fact. The fact-sensitive approach in Smart v Forensic Science Limited [2013] EWCA Civ 783 was applied.

4. The appeal was nevertheless allowed on the limited pleading which incorporated earlier malicious-prosecution particulars only insofar as they might apply to misfeasance. A defendant is entitled to know from a properly particularised pleading what conduct is alleged. The defendant should not have to identify which allegations might evade immunity.

5. The failure to appeal an earlier refusal of a materially different amendment was not an abuse of process. Only one respondent had been party to the earlier application, and the later ruling reaffirmed the erroneous view of immunity in relation to different and wider amendments.

6. The appeal concerning the settlement-related amendment was allowed. Gilbart J had substituted his own assessment for a proper appellate review of the circuit judge’s case-management discretion. The circuit judge had considered the delay, prior non-compliance, confidentiality, cost, duplication, prejudice and weakness of the proposed inference. His refusal lay within the generous ambit of his discretion. His order refusing that amendment was restored.

1. Court of Appeal (Civil Division): The Chief Constable’s appeal was allowed in part. The court upheld permission for most amendments concerning disclosure and immunity, disallowed an inadequately particularised incorporation pleading, rejected the abuse-of-process ground, and restored the refusal of the settlement-related amendment.
2. High Court, Queen’s Bench Division: In [2015] EWHC 228 (QB), Gilbart J allowed the claimants’ appeals and permitted all amendments then in issue.
3. County Court: HHJ Seys Llewellyn QC refused several amendments on absolute-immunity and case-management grounds, while permitting allegations based on wilful destruction of documents and certain investigatory conduct.