Young v Warwickshire Police & Anor

A claim for misfeasance in public office requires properly particularised targeted or untargeted malice and proof that the public officer actually foresaw damage of the relevant kind. Allegations equally consistent with mistake, negligence or incompetence do not suffice. The claimant must also identify the damage and the basis for alleging actual foresight.

A claim may in principle be brought in misfeasance even where malicious prosecution could not be established. However, it will fail where the pleaded facts disclose no realistic inference of malice, causation or damage. Witness immunity extends to statements prepared for use in judicial proceedings and the preparation of such evidence.

The claimant had been prosecuted for murder-related offences. The prosecution collapsed after the trial judge ordered disclosure of intelligence material, including its source, and the prosecution offered no further evidence.

The claimant sued the Chief Constable of Warwickshire Police and the Director of Public Prosecutions for misfeasance in public office. He alleged that intelligence material had been withheld, inadequately investigated and used to support misleading witness statements. The defendants applied to strike out the claim and for summary judgment.

The central issues were whether the claim was barred because there had been reasonable and probable cause for the prosecution, whether malice and damage had been sufficiently pleaded, whether the claim had a real prospect of success, and whether witness immunity applied to statements prepared by scenes of crime officers.

1. Disposition. The claim was struck out under CPR rule 3.4(2)(a), and summary judgment was entered for both defendants under CPR rule 24.2.
2. Misfeasance in public office requires a public officer, conduct in the exercise of public functions, the requisite malice and damage. Malice may be targeted, involving an improper or ulterior motive, or untargeted, involving knowledge of lack of power or reckless indifference to that lack of power and probable injury. The claimant must show that the officer actually foresaw damage of the relevant type.
3. The requirements of malice and damage are onerous. Bad faith is synonymous with dishonesty and must be properly particularised. Reckless indifference also requires proper particulars. Allegations equally explicable by mistake or want of care cannot be converted into misfeasance merely by asserting that bad faith was the only possible explanation. The pleading must also identify the damage and why the officer must have foreseen it.
4. The court rejected the defendants’ broad submission that framing the claim as misfeasance was necessarily an abuse because the claimant could not bring malicious prosecution. Darker v Chief Constable of West Midlands showed that such a claim should not automatically be struck out. It was at least arguable that maliciously prolonging detention, while reasonable and probable cause for prosecution continued, could cause actionable loss of liberty.
5. Applying Easyair Limited v Opal Telecom Limited, the claim was wholly unrealistic. The police had disclosed the relevant material to the CPS at an early stage. As against the CPS, the explanation for later disclosure was plausible and unchallenged, and there was no realistic basis for inferring targeted malice or reckless indifference. The alleged earlier collapse of the prosecution was speculative.
6. Statements by the scenes of crime officers were prepared to address a lacuna in evidence before the court and formed part of the evidence presented to the jury. Under Marrinan v Vibart, as approved and confirmed in Saif Ali v Sydney Mitchell & Co, witness immunity covered statements made for judicial proceedings and acts done in preparing them. The distinction in Darker v Chief Constable of West Midlands concerning antecedent police fabrication did not assist the claimant.

The judgment records an earlier refusal by Master Gidden of an application for pre-action disclosure. The present proceedings were first-instance applications to strike out the claim and for summary judgment.