Rees & Ors v Commissioner of Police for the Metropolis

Factual and Procedural Background

This opinion concerns appeals brought by three appellants against the dismissal by Judge Mitting of their claims against the Commissioner of Police for the Metropolis ("MPC") for malicious prosecution and misfeasance in public office. The claims arose from a murder investigation into the 1987 killing of a man named Daniel Morgan at a public house car park in southeast London. The appellants and another individual were prosecuted for the murder based largely on the evidence of a witness with a criminal past, who claimed to have been present at the scene. The witness’s evidence was later excluded due to improper conduct by the Senior Investigating Officer ("SIO"), Detective Chief Superintendent Cook ("DCS Cook"), who was found to have improperly prompted the witness in breach of investigation protocols. The criminal prosecution was ultimately discontinued without a jury trial. The appellants then brought civil claims alleging malicious prosecution and misfeasance in public office against the MPC, which were dismissed by Mitting J following a preliminary issue trial on liability. Permission to appeal was initially refused but later granted by Lord Justice Jackson.

Legal Issues Presented

1. Whether DCS Cook was a "prosecutor" for the purposes of the tort of malicious prosecution, given that the Crown Prosecution Service ("CPS") formally brought the charges.
2. Whether the prosecution was without reasonable and probable cause.
3. Whether the prosecution was malicious.
4. Whether the appellants suffered actionable damage as a result of the prosecution.
5. Whether DCS Cook committed the tort of misfeasance in public office by his conduct in perverting the course of justice.
6. Whether the appellants suffered loss caused by DCS Cook’s misfeasance.

Arguments of the Parties

Appellants' Arguments

• DCS Cook should be regarded as a prosecutor because he deliberately presented tainted evidence to the CPS, thereby depriving the CPS of the ability to exercise independent judgment.
• The prosecution was without reasonable and probable cause as it relied heavily on the unlawfully procured evidence of the witness whose testimony was excluded.
• DCS Cook acted maliciously by knowingly using unlawfully obtained evidence to instigate prosecution.
• The appellants suffered actionable damage as the prosecution would not have been initiated but for DCS Cook’s misconduct.
• The misfeasance in public office claim is established since DCS Cook, a public officer, intentionally perverted the course of justice causing loss.

Respondent’s (MPC) Arguments

• DCS Cook was not a prosecutor; the CPS made an independent decision to prosecute.
• Even excluding the tainted evidence, there was reasonable and probable cause to prosecute based on other admissible evidence.
• DCS Cook was not malicious as his motive was to bring those he believed guilty to justice.
• The appellants suffered no actionable damage because the prosecution would have proceeded regardless of DCS Cook’s misconduct.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by adopting the primary facts found by Mitting J but disagreed with some of his legal conclusions, particularly regarding whether DCS Cook was a prosecutor and whether he acted maliciously.

On the question of whether DCS Cook was a prosecutor, the court applied established legal principles requiring that the individual must have intended prosecution, known the facts peculiarly within their knowledge, and procured the prosecution by misleading the actual prosecutor. The court found that DCS Cook, as the senior investigating officer, deliberately and knowingly presented tainted evidence procured through criminal conduct to the CPS, which deprived the CPS of the ability to exercise independent judgment. This conduct amounted to procuring the prosecution, making DCS Cook a prosecutor for the purposes of malicious prosecution.

Regarding reasonable and probable cause, the court distinguished between objective sufficiency of evidence and the subjective belief of the prosecutor. While there was objectively sufficient evidence excluding the tainted witness, DCS Cook did not have an honest belief in reasonable and probable cause because he relied heavily on unlawfully obtained evidence he knew would be excluded.

On malice, the court held that knowingly presenting false and tainted evidence to induce prosecution was malicious, even if the prosecutor believed the appellants were guilty. The court rejected the trial judge’s conclusion that DCS Cook was not malicious, emphasizing that malice includes wrongful intent to misuse the court process.

In relation to misfeasance in public office, the court agreed with the trial judge that DCS Cook committed the tort by perverting the course of justice through deliberate unlawful acts. However, the trial judge had erred in finding no causation of loss.

On causation and damage, the court found it inconceivable that a properly informed prosecutor would have initiated prosecution knowing that critical evidence was procured by criminal conduct. The taint of DCS Cook’s actions would have required his removal and a fresh assessment of the case. The court disagreed with the trial judge’s conclusion that the prosecution would have proceeded regardless, finding that the appellants had established causation of loss.

The court also noted concerns about the absence of disclosure of contemporaneous documents that might have clarified whether the prosecution decision was independent, highlighting the inefficiency and resource waste in litigating complex hypothetical questions without access to such material.

Holding and Implications

The court ALLOWED THE APPEALS.

The court held that DCS Cook was a prosecutor for the purposes of malicious prosecution, that he acted maliciously by knowingly presenting tainted evidence procured through criminal conduct, and that the appellants suffered actionable damage as a result. The misfeasance in public office claim was also upheld on causation grounds. This decision reversed the trial judge’s conclusions on key legal issues, reinforcing that deliberate perversion of justice by a senior police officer cannot be excused by a subjective belief in guilt.

The direct effect is that the appellants’ claims for malicious prosecution and misfeasance in public office against the MPC succeed. The court emphasized the importance of upholding the rule of law and ensuring that unlawful conduct by public officers is not endorsed by the courts. No new precedent was created beyond the application of established principles to the facts of this case.