REID v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant, Michael Reid, is a United Kingdom national, born in 1969 and living in Romford, Essex. He is represented before the Court by Mr S. Marine, a lawyer practising in London. The facts of the case, as submitted by the parties, may be summarised as follows. In his statement of 16 February 1988, taken by the police, R. had stated that a gold chain had been stolen from him by a person who he knew as Michael Reid. He described Michael Reid as “about 5’ 10’’ he has got a flat top afro hair and is slim”. On 17 February 1988, the applicant was arrested and charged with robbing R. of his gold chain. In an interview with the police the same day, he had admitted that he had been at the premises known as “Bee-Jays” when the incident occurred on 7 February 1988. He alleged that another man called “Blue” had taken the chain and that he had talked to R., saying that he would try to get it back for him. On 18 February 1988, the applicant was remanded in custody. On 29 March 1988, the committal proceedings took place before the Ilford Magistrates Court. The charges were read and explained to the applicant, who was represented. R. gave evidence and described the person who robbed him as being black, pretty tall and having a flat-top hair cut. He however stated that, “At the time I didn’t know the person who robbed me; I’d never seen him before at that time.” Questions were put to R. in cross-examination by the applicant’s counsel. The applicant was asked whether he wished to say anything in answer to the charge, to which he made no reply. The applicant was also given an opportunity to give evidence and to call witnesses. He did not do so. The applicant was committed for trial and detained on remand by order of the magistrates. On 4 July 1988 at the trial at Snaresbrook Crown Court, prosecuting counsel from the Crown Prosecution Service (“CPS”) offered no evidence in support of the prosecution. According to the statement of claim issued by the applicant in later civil proceedings, prosecuting counsel informed the court that he had only just received the papers and that there were problems with them, referring to the identification of the applicant. After a short adjournment he asked for time to take a further statement from the victim R. He then returned to the court and offered no evidence against the applicant. The applicant was released from custody. On 6 June 1994, the applicant issued proceedings against the CPS claiming damages for negligence. He alleged that the prosecution had failed to take reasonable care in assessing whether there was, at the committal proceedings on 29 March 1988, sufficient evidence against the applicant. On 3 January 1995 the CPS issued an application to strike out the applicant`s claim on the ground that it disclosed no reasonable cause of action. On 9 June 1995 a Deputy High Court Judge struck out the applicant`s statement of claim as disclosing no reasonable cause of action, following the Court of Appeal`s case-law to the effect that there was no general duty of care owed by the Crown Prosecution Service in relation to its prosecutions (Elguzouli-daf v. the Commissioner of Police for the Metropolis [1995] QB 335, see below in Relevant Domestic Law and Practice). The judge was of the opinion that the applicant`s case involved "a point of law of general importance" and issued a certificate, pursuant to Section 12(3)(b) of the Administration of Justice Act 1969 entitling the applicant to "leapfrog", i.e. to petition the House of Lords directly. On 24 July 1995 the applicant petitioned the House of Lords for leave to appeal. Leave to appeal was refused on 30 November 1996. In England and Wales, there is no single tort which imposes liability to pay compensation for civil wrongs. Instead there are a series of separate torts, for example, trespass, conversion, conspiracy, negligence and defamation. Negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort of negligence: a duty of care, breach of the duty of care and damage. The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly. To show a duty of care, the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist. In novel situations, in order to show a duty of care, the claimant must satisfy a threefold test, establishing that: – damage to the claimant was foreseeable; – the claimant was in an appropriate relationship of proximity to the defendant; and – it is fair, just and reasonable to impose liability on the defendant. These criteria apply to claims against private persons as well as claims against public bodies. The leading case is Caparo Industries v. Dickman ([1990] 2 AC 605). If the courts decide that as a matter of law there is no duty of care owed in a particular situation, that decision will (subject to the doctrine of precedent) apply in future cases where the parties are in the same relationship. In the case of Elguzouli-daf v. the Commissioner of Police for the Metropolis [1995] QB 335, the Court of Appeal decided that no duty of care in negligence was owed by the Crown Prosecution Service (“CPS”) to defendants in fulfilling its statutory duty in prosecuting crime. The case concerned two plaintiffs, who had been arrested, charged and arrested in custody for serious offences and after periods of 22 and 85 days respectively the CPS had discontinued the proceedings against them. They had instituted proceedings against the CPS claiming inter alia that the CPS had been negligent in failing to act with reasonable diligence in concluding that they were either innocent/or the prosecution bound to fail. The claims were struck out by the judge on the basis that they disclosed no reasonable cause of action. Their appeals to the Court of Appeal were dismissed. In the leading judgment, Lord Justice Steyn referred to the three criteria laid down in Caparo (cited above) and had regard to the considerations as to whether the CPS should be treated differently in tort from private citizens and corporations. He noted that the CPS was a public law enforcement agency acting for the public as a whole and that, having regard to the torts of malicious prosecution and misfeasance in public office, a citizen aggrieved by a prosecutor’s decision had potentially extensive private law remedies for a deliberate abuse of power. “That brings me to the policy factors which, in my view, argue against the recognition of a duty of care by the CPS to those it prosecutes. While it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the CPS. In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the CPS of its central function of prosecuting crime. It would in some cases lead to a defensive approach by prosecutors of their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence. The CPS would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against the CPS. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of CPS lawyers would be diverted from concentrating on their prime function of prosecuting offenders. That would be likely to happen not only during the prosecution process but also when the CPS is sued in negligence by aggrieved defendants. The CPS would be constantly enmeshed in an avalanche of interlocutory civil proceedings and civil trials. That is a spectre that would bode ill for the efficiency of the CPS and the quality of our criminal justice system. … Recognising that individualised justice to private individuals or trading companies who are aggrieved by careless decisions of CPS lawyers militates in favour of the recognition of a duty of care, I concluded that there are compelling considerations, rooted in the welfare of the whole community, which outweigh the dictates of individualised justice. I would rule that there is no duty of care owed by the CPS to those it prosecutes. In so ruling I have considered whether a distinction between operational and discretionary lapses, with potential liability in the former but not the latter, should be made. Whatever the merit of such a distinction in other areas of the law, I would reject it in regard to the CPS as impractical and unworkable and not capable of avoiding the adverse consequences for the CPS on which I have rested my decision. Subject to one qualification, my conclusion that there is no duty of care owed by the CPS to those it prosecutes is intended to be of general application. The qualification is that there may be cases of which Welsh v. the Chief Constable for the Merseyside Police [1993] 1 All E.R. 692 was an example, where the CPS assumes by conduct a responsibility to a particular defendant… And it is trite law that such an assumption of responsibility may generate legal duties. …” At the relevant time, Order 18 rule 19 of the Rules of the Supreme Court provided that a claim could be struck out if it disclosed no reasonable cause of action. This jurisdiction has been described as being reserved for “plain and obvious cases”, in which a claim was “obviously unsustainable”. In applications to strike out, the courts proceeded on the basis that all the allegations set out in the claimant’s pleadings were true. The question for the courts was whether, assuming that the claimant could substantiate all factual allegations at trial, the claim disclosed a reasonable cause of action. The striking out procedure, now contained in the Part 3.4(2) of the Civil Procedure Rules in force since 1999, is regarded as an important feature of English civil procedure, performing the function of securing speedy and effective justice, inter alia by allowing it to be decided promptly which issues need full investigation and trial and disposing summarily of the others. By means of this procedure, it can be determined at an early stage, with minimal cost to the parties, whether the facts as pleaded reveal a claim existing in law. The CPS is a statutory public law enforcement agency set up by the Prosecution of Offences Act 1985 to prosecute criminal offences. It is an autonomous and independent body which reviews police decisions to prosecute and conducts prosecutions on behalf of the Crown. The CPS is headed by the Director of Public Prosecutions (“the DPP”) and is answerable to Parliament through the Attorney General. The conduct of Crown Prosecutors is regulated by the Code for Crown Prosecutors, issued under section 10 of the 1985 Act. Paragraph 10 provides that review of the police decision to prosecute is a continuing process, so that Crown prosecutors are required to take into account any change in circumstances. Before bringing a prosecution, a Crown prosecutor had, at the relevant time, to be satisfied that it fulfilled two sets of criteria set out in the code, firstly concerning evidential sufficiency and, secondly, concerning the public interest. The first required that that a Crown Prosecutor be satisfied that there was enough evidence to provide a “realistic prospect of conviction”. This involved an assessment whether a jury or bench of magistrates, properly directed in accordance with law, would be more likely than not to convict the defendant of the charge alleged. The Crown Prosecutor was required to draw on his experience of how the evidence was likely to “stand up” (paragraph 6). Under the public interest criteria, the Crown Prosecutor had, inter alia, to consider the very serious harm the stigma of a conviction could cause very young adults and take into account any change in the complainant/victim’s attitude, e.g. the expression of a wish, after the initial complaint, that no action should be taken (paragraphs 8(iii), 8(vii) and 20ff).