Rees & Ors v Commissioner of Police for the Metropolis, Court of Appeal - Civil Division, July 05, 2018, [2018] EWCA Civ 1587

Resolution Date:July 05, 2018
Issuing Organization:Civil Division
Actores:Rees & Ors v Commissioner of Police for the Metropolis

Neutral Citation Number: [2018] EWCA Civ 1587

Case No: A2/2017/0884, A2/2017/0874,

A2/2017/0874(A) and A2/2017/0874(B)





HQ13X02927 and HQ14X01020

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 05/07/2018

Before :





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Between :

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Nicholas Bowen QC and David Lemer (instructed by Freedman Alexander LLP) for the First and Second Appellants; Stephen Simblet (instructed by Guile Nicholas) for the Third Appellant

Jeremy Johnson QC, Charlotte Ventham and Catriona Hodge (instructed by Directorate of Legal Services, Metropolitan Police) for the Respondent

Hearing dates: 24 & 25 April 2018

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Lord Justice McCombe:

(A) Introduction

1. These are appeals brought by Mr Jonathan Rees, Mr Glenn Vian and Mr Garry Vian from the order of Mitting J of 22 February 2017 by which (following a trial of a preliminary issue as to liability) he dismissed their claims against the Commissioner of Police for the Metropolis (``MPC'') for malicious prosecution and for misfeasance in public office. Permission to appeal was refused by the judge by the same order but permission was granted by Lord Justice Jackson by his order of 30 May 2017. For ease, I will refer to Mr Rees as ``Rees'', Glenn Vian as ``Glenn V'' and Garry Vian as ``Garry V''. No discourtesy is intended thereby.

2. In summarising the facts, and in reaching my own decision on this appeal, I adopt entirely the facts as found by Mitting J, which Mr Bowen QC (for Rees and Glenn V) said that he had to accept, albeit in certain respects (which he did not specify) reluctantly. Mr Johnson QC, for the MPC urged upon us a submission that the appeals amounted to an attempt to undermine the trial judge's findings of primary fact, contrary to the principles re-stated in McGraddie v McGraddie [2013] 1 WLR 2477 (to which one might add Re B (Children) [2008] UKHL 35 and Henderson v Foxworth Investments Limited [2014] UKSC 41). I would emphasise at the outset that this judgment is founded entirely upon the primary facts found by the judge. It will be seen, however, that in certain areas I find myself in disagreement either with the judge's legal conclusions or the secondary conclusions which he draws from the primary facts which he found.

(B) Background

3. As long ago as the evening of 10 March 1987 a man called Daniel Morgan was murdered in a car park to the rear of a public house, known as ``The Golden Lion'', at Sydenham in southeast London. He was struck, four or five blows to the head, with an axe. The axe was left embedded in his face. The appellants (and a man called Jimmy Cook (``Cook'')) were eventually prosecuted for the murder. There were no eyewitnesses. However, an important plank of the Crown case presented against the appellants was the evidence of a man called Gary Eaton (``Eaton''), a man with a known criminal past who suffered from a known personality disorder, who was to claim that he had been present at the scene shortly after the attack on Morgan.

4. After a lengthy debriefing which began in July 2006, Eaton made witness statements on 20 April 2007 (just over twenty years after the murder) in which he claimed to have been present at the scene shortly after the fatal blows had been struck. He said that, on that evening, he had followed Garry V (whom he called ``Scott'') (one of two brothers) into the car park from the pub lavatory and saw Cook in the driver's seat of a car with Glenn V (who he named as the other brother) in the front passenger seat. He said he saw Morgan's body on the ground close by with an axe embedded in his head. He did not directly implicate Rees, save to say that (as Rees himself had admitted) he had been in the pub on the night in question.

(C) The Criminal Proceedings

5. The appellants and Cook were arrested on suspicion of the murder on 21 April 2008. They were charged with the murder on 23 April. They remained in custody until 3 March 2010, when Maddison J (the trial judge) refused further to extend the custody time limits in the case, following a finding that there had been a significant lack of due diligence in prosecution disclosure.

6. In the criminal proceedings, there were a number of pre-trial applications to Maddison J, including an application under Police and Criminal Evidence Act 1984 s.78, to exclude Eaton's evidence from the trial and as an abuse of process application. These were heard between October and December 2009. On 15 February 2010, Maddison J informed the parties that Eaton's evidence would be excluded, but the trial should proceed.

7. There were then further setbacks to the Crown case. As a result, on 18 November 2010, the Crown withdrew its case against Cook. On 11 March 2011, counsel for the Crown informed Maddison J of their decision to discontinue proceedings against the present appellants and to offer no further evidence against them. Verdicts of ``not guilty'' were entered accordingly. No jury was ever sworn for the trial.

8. As I have said, the statements made by Eaton were a major plank of the Crown case against the appellants. I will return below to the extent to which he implicated each appellant, according to the findings of Mitting J. The salient feature of the present proceedings, however, and the salient reason why Maddison J decided to exclude Eaton's evidence from the appellants' prospective trial, was that the Senior Investigating Officer (``SIO''), Detective Chief Superintendent David Cook (``DCS Cook'') was found to have compromised the de-briefing of Eaton by making and receiving an extensive number of unauthorised direct contacts with Eaton in the period leading up to Eaton's making of his statements, in contravention of express procedures for keeping a ``sterile corridor'' between the debriefing officers and the investigation team. In the course of the debriefing process, Eaton moved from being unwilling to name directly any of the participants in the murder to naming the three appellants and giving his graphic (as it turned out obviously inaccurate) description of the murder scene.

(D) The judgment of Mitting J

9. Mitting J decided that he was satisfied that, on the facts of the case found by Maddison J as to what DCS Cook did, he had committed the crime of doing an act tending to and intended to pervert the course of justice: see paragraph 186 of Mitting J's judgment. Maddison J's conclusion is quoted verbatim in paragraph 101 of Mitting J's judgment:

"I conclude that DCS Cook probably did prompt Mr Eaton to implicate the Vian brothers. I am not in a position to find whether the prompting was to name two defendants to whom Mr Eaton would not otherwise referred to at all, or whether it was as to details of his final account to which he would not otherwise have referred; but I am satisfied that there was improper prompting of some kind. I have considered whether DCS Cook may have prompted Mr Eaton also in relation to other defendants. I am concerned that he may have done so, given the number of times he contacted Mr Eaton when he should not have done, frequent absence of any records of what was said, and the understatement of the numbers of contacts to which I have recently referred. Despite these anxieties, I am not able on the evidence available to me to find on the balance of probabilities that such further prompting did take place. However, the fact that any prompting occurred, that it occurred in breach of the sterile corridor system, and that the person prompted, Mr Eaton, had personality disorders which included a tendency to lie, sometimes for no apparent reason, are obviously extremely concerning."

10. For his part, Mitting J found that DCS Cook ``contaminated the source of justice''. He continued as follows:

``187. [I]t is inescapable that Cook did deliberately breach both guidelines and express instructions from his superiors which he knew would be likely to undermine the integrity of the evidence of the potential witness Eaton. Further, what he did put the admissibility of the evidence of Eaton at risk, as in fact happened. ...[H]e contaminated the source of justice. He knew what he was doing and did it deliberately. He can therefore be taken to have intended to do it. The ingredients of the crime were present.

188. I reach that conclusion even though I am not persuaded that Cook intended that Eaton should give false evidence. Although no-one, other than Cook and Eaton can know for certain what he said to him, I believe it to be inconceivable that Cook gave Eaton a detailed account of what he believed had happened, knowing that Eaton had not witnessed it. My strong suspicion - it can be no more than that - is that he encouraged Eaton to say that he was present at the Golden Lion on 10 March 1987 and did witness the aftermath of the murder because he believed that Eaton had been there, but was reluctant to say so, because of fears for his and his family's safety and that inaccuracies in his account would be exposed. I strongly suspect that in the two lengthy calls on 28 and 29 August 2006 (referred to in paragraph 71) he encouraged Eaton to say, at the next debriefing session on 1 September 2006, as he had not done before, that he was present at the scene. I strongly suspect that this was because Eaton had said something to Cook which prompted him to believe that Eaton may have been there. Once he began to tell his story, like Maddison J, I accept that Cook prompted him to name "the brothers" as Scott and Garry. The danger in this was that it encouraged an unstable individual with severe personality and psychiatric problems to say what he thought Cook wanted him to say, whether or not it was true. I am satisfied that something...

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