Rees & Ors v Commissioner of Police for the Metropolis

A police investigator may be a prosecutor for malicious prosecution where deliberate misconduct deprives the independent charging authority of a genuine ability to exercise its own judgment. A prosecution is malicious where the investigator knowingly presents a materially tainted case obtained through criminal conduct. A personal belief in the accused’s guilt does not make that use of the court’s process bona fide.

Reasonable and probable cause has objective and subjective elements. A prosecutor who relies substantially on evidence which he has improperly procured, and knows is unfit for trial, cannot honestly believe that the case presented is proper and fit to be tried. Causation must be assessed by considering both the absence of the tainted evidence and the contaminating effect of the investigator’s misconduct upon the investigation as a whole.

The appellants were charged with a murder committed in 1987. A principal element of the prosecution case was evidence from an alleged eyewitness, obtained after the senior investigating officer deliberately breached procedures designed to isolate the witness from the investigation team. The criminal trial judge excluded that evidence, and the prosecution was eventually discontinued.

In civil proceedings, Mitting J held that the officer had committed an act tending and intended to pervert the course of justice. He nevertheless dismissed claims for malicious prosecution and misfeasance in public office: [2017] EWHC 273 (QB). He held that the officer was not a prosecutor, had reasonable and probable cause, did not act maliciously, and caused no loss because the appellants would have been prosecuted on the remaining evidence.

The central issues on appeal were whether the officer was a prosecutor, whether he possessed subjective reasonable and probable cause, whether his conduct was malicious, and whether it caused the appellants’ prosecution and resulting loss.

1. The appeals were allowed. DCS Cook was a prosecutor for the purpose of malicious prosecution. As senior investigating officer, he knowingly presented the charging authority with a case containing important evidence procured through his own criminal conduct. His manipulation overbore and perverted the charging decision, depriving the Crown Prosecution Service of a genuine opportunity to exercise independent judgment.

2. Reasonable and probable cause has objective and subjective elements. There may have been objectively sufficient admissible evidence apart from the contaminated witness evidence. The subjective element was nevertheless absent. DCS Cook relied substantially upon evidence which he knew was certain, or highly likely, to be excluded because of his misconduct. There was no evidence that he considered whether the remaining material alone constituted a proper case fit to be tried.

3. DCS Cook acted maliciously. Malice requires deliberate misuse of the court’s process rather than personal spite. A belief that the accused are guilty does not excuse the knowing presentation of a prosecution case significantly tainted by the prosecutor’s own attempt to pervert justice. Such a case is neither bona fide nor fit to be presented to a jury.

4. The misconduct caused actionable loss for both malicious prosecution and misfeasance in public office. The correct counterfactual required more than merely subtracting the inadmissible evidence. It required consideration of the wider contaminating effect of criminal conduct by the senior investigating officer. A properly informed prosecutor would not have initiated charges without removing that officer’s influence and undertaking a fresh, untainted assessment of the remaining evidence. The later continuation of an existing prosecution did not establish that it would originally have been commenced on the residual evidence.

5. McCombe LJ gave the principal judgment. King LJ and Coulson LJ agreed that the officer was a prosecutor, acted maliciously, lacked subjective reasonable and probable cause, and caused the appellants’ loss. Coulson LJ added that merely subtracting the witness evidence failed to address the effect of the officer’s criminal conduct across the case as a whole.

1. Court of Appeal (Civil Division): The appeals were allowed. The court held that the appellants had established liability in malicious prosecution and misfeasance in public office: [2018] EWCA Civ 1587.
2. High Court, Queen’s Bench Division: Following trial of a preliminary issue on liability, Mitting J dismissed both claims. He held that the senior investigating officer had committed an act tending and intended to pervert the course of justice, but was not a prosecutor and had not caused actionable loss: [2017] EWHC 273 (QB).