Rees & Ors v Commissioner of Police for the Metropolis (Rev 1)

For the purposes of malicious prosecution, the person who supplies information is not ordinarily the prosecutor where the police or CPS retain an independent ability to decide whether and what to charge. The exception applies where the informant intends a prosecution, deliberately supplies or withholds material information, and the professional decision-maker is virtually unable to exercise independent judgment.

Misfeasance in public office may arise from misconduct in the performance of police investigative functions, even where no particular statutory or common-law power is being exercised. Deliberately contaminating an assisting offender’s evidence and concealing that conduct may constitute an unlawful act tending to pervert the course of justice. Causation is determined on the balance of probabilities.

The four claimants brought claims against the Commissioner for malicious prosecution and misfeasance in public office arising from investigations into the murder of Daniel Morgan. They alleged that Detective Chief Superintendent Cook improperly prompted the evidence of an assisting offender, Gary Eaton, and concealed his conduct from the CPS and prosecuting counsel.

The criminal proceedings against the claimants were discontinued after the evidence of Eaton and other witnesses was excluded or withdrawn. Liability was tried as a preliminary issue. The central questions were whether Cook was to be treated as the prosecutor, whether there had been reasonable and probable cause and malice, and whether Cook’s conduct constituted misfeasance in public office causing loss.

1. Malicious prosecution. The claims failed. A person supplying information is not ordinarily the prosecutor merely because the information leads to a charge. The relevant exception requires intent to procure a prosecution, facts peculiarly within that person’s knowledge, deliberate manipulation or withholding of information, and circumstances in which the professional prosecutor cannot practically exercise independent judgment. The CPS and Treasury Counsel had independently considered substantial material and decided whom to charge. Cook’s concealment made that decision less fully informed, but did not make independent judgment virtually impossible. The observations in Clifford v The Chief Constable of the Hertfordshire Constabulary [2008] EWHC 3154 (QB) were not followed to the wider extent contended for.
2. Had the issue arisen, there was reasonable and probable cause to prosecute Rees and the Vian brothers on evidence other than Eaton’s. There was none in Fillery’s case, because the prosecution depended solely on Eaton. Malice was not established: Cook’s improper methods did not prove an improper motive.
3. Misfeasance in public office. Cook was acting in the exercise of public functions as an investigating police officer. Prompting Eaton, deliberately breaching the sterile-corridor safeguards and concealing the conduct amounted to an unlawful act tending and intended to pervert the course of justice. The Commissioner accepted vicarious liability under section 88 of the Police Act 1996.
4. Rees and the Vian brothers failed on causation. On the balance of probabilities, they would have been prosecuted without Eaton’s evidence. Fillery succeeded because, but for Cook’s conduct, Eaton’s evidence would not have emerged and Fillery would not have been prosecuted. His misfeasance claim therefore succeeded in full.