Mouncher & Ors v South Wales Police

The tort of misfeasance in public office requires deliberate conduct or omission beyond lawful power, knowledge or recklessness as to that lack of power, and knowledge or recklessness as to probable injury or loss. Negligence and inadvertence are insufficient.

For false imprisonment arising from arrest, the arresting officer must genuinely suspect the claimant and have objectively reasonable grounds for that suspicion. Where the statutory necessity requirement applies, the officer must also genuinely believe that arrest is necessary and have reasonable grounds for that belief.

A police investigator who supplies information to the CPS is not ordinarily the prosecutor for malicious prosecution. The CPS remains the prosecutor where it independently decides whether to charge.

The claimants were serving or former South Wales Police officers involved in the original investigation of the murder of Lynette White. After the convictions of three defendants were quashed and another man later pleaded guilty, South Wales Police conducted a further investigation into alleged misconduct during the original investigation.

The claimants alleged misfeasance in public office, false imprisonment, malicious prosecution and breaches of article 8 of the ECHR. Most were arrested and investigated in 2005; Mr Hicks was arrested in 2007. Criminal proceedings against several claimants began in 2009 but ended in 2011 when the prosecution offered no further evidence following disclosure failures.

The central issues were whether the investigation, arrests, detention, prosecution and searches were unlawful or undertaken in bad faith.

1. Misfeasance. Applying Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1, the claimants had to prove deliberate conduct or omission beyond power, knowledge or recklessness as to that lack of power, knowledge or recklessness as to probable injury or loss, causation and bad faith. The evidence did not establish that the investigators knowingly or recklessly exceeded their powers, suppressed exculpatory material or acted in bad faith. The claims therefore failed.
2. Arrests before the statutory necessity amendment. Applying the approach in Castorina v Chief Constable of Surrey and O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286, the defendant proved that the arresting officers genuinely suspected the claimants and had objectively reasonable grounds. The arresting officer’s own state of mind and information were decisive; a superior’s instruction alone was insufficient. The arrests of the claimants arrested in 2005 were therefore lawful, although the early-morning timing was unjustified and unreasonable in a general sense.
3. Incomplete briefing. Following Davidson v Chief Constable of North Wales [1994] 2 All ER 597, Copeland v Commissioner of Police of the Metropolis [2015] 3 All ER 391 and R (Rawlinson and Hunter) v Central Criminal Court [2013] 1 WLR 1634, an arrest may be unlawful where the person procuring it deliberately causes it by false or materially incomplete information. The claimants did not establish that this principle made the other arrests unlawful.
4. Mrs Coliandris. The evidence available when she was arrested did not reasonably support the inference that she had interviewed or intimidated the witness, or participated in a conspiracy. Her arrest was unlawful.
5. Mr Hicks. Applying section 24 of the Police and Criminal Evidence Act 1984 as amended, the defendant failed to prove reasonable grounds for believing that arrest was necessary. The possibility that Mr Hicks might leave during a voluntary interview was insufficient. His arrest was unlawful.
6. Detention and other claims. Some custody reviews were late, but timely reviews would have authorised continued detention. The malicious prosecution claims failed because the CPS, not the investigating officers, made the charging decision; in any event there was reasonable and probable cause and no malice. The article 8 claim concerning the search failed because the warrants had not been quashed. The prolonged unconditional bail did not breach article 8.
7. The claims for misfeasance, malicious prosecution and article 8 breaches were dismissed. The false imprisonment claims of Mrs Coliandris and Mr Hicks succeeded on liability, subject to limitation and assessment of damages. The remaining false imprisonment claims failed.

First-instance decision. No lower-court judgment or appellate decision is stated in the judgment.