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Welsh v Chief Constable of the Merseyside Police

[1993] 1 All ER 692

Court: QBD

Judgment Date: circa 1993

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NEGLIGENCE - GENERAL PRINCIPLES OF THE LAW OF NEGLIGENCE - NATURE OF NEGLIGENCE - THE DUTY TO TAKE CARE - NECESSITY FOR - NO NEGLIGENCE WITHOUT DUTY - FAILURE OF CROWN PROSECUTION SERVICE TO INFORM MAGISTRATES' COURT

On 24 July 1987 the plaintiff appeared before a magistrates' court charged with two offences of theft. He was remanded on bail to appear before the court on 19 August. On 7 August the plaintiff was due to appear in the Crown Court to be dealt with for numerous criminal matters. Before the case was called on in the Crown Court the plaintiff's counsel informed the police officer in charge of the case, counsel for the prosecution and a representative of the Crown Prosecution Service that the plaintiff wanted the offences of theft with which he had been charged in the magistrates' court, and to which he intended to plead guilty, to be taken into consideration when he was sentenced by the Crown Court. The police officer contacted the magistrates' court to obtain the necessary details and was assured by a police officer at the court that the offences were suitable to be taken into consideration by the Crown Court. He then spoke on the telephone to a solicitor employed by the Crown Prosecution Service responsible for prosecutions in the magistrates' court, who agreed to and approved the proposal that the offences should be taken into consideration by the Crown Court. The officer asked the solicitor to indorse the file that the offences were being taken into consideration that morning so that the magistrates' court could be informed of that fact. It was agreed between the plaintiff's legal advisers and the Crown Prosecution Service representative that the offences should be taken into consideration and that was in fact done when the plaintiff appeared before the judge in the Crown Court. On 19 August the plaintiff failed to answer to his bail at the magistrates' court, believing that the magistrates had been informed that the offences had been taken into consideration. In fact the magistrates' court was not aware of that fact and issued a warrant for his arrest not backed for bail. On 19 December the plaintiff was arrested, taken to a police station and held in custody under the warrant until he was released by the magistrates' court on 21 December 1987. The plaintiff brought an action against the police and the Crown Prosecution Service alleging that he had suffered loss, damage and distress as the result of the defendants' negligent failure to ensure that the magistrates' court was informed that the offences for which he had been bailed had subsequently been taken into consideration by the Crown Court. On the application of the Crown Prosecution Service the registrar struck out the plaintiff's claim against it pursuant to RSC Ord 18, r 19(1)(a) on the ground that the Crown Prosecution Service did not owe the plaintiff any duty of care. The plaintiff appealed. The Crown Prosecution Service claimed immunity from proceedings under s 2(5) of the Crown Proceedings Act 1947, which provided that no proceedings lay against the Crown "in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process". The Crown Prosecution Service contended (i) that in assuming responsibility for informing the magistrates' court that the plaintiff's offences had been taken into consideration by the Crown Court it was discharging a responsibility which it had in connection with the execution of a judicial process, (ii) that its advocate at the resumed hearing before the magistrates was immune from suit and that accordingly in that respect it was protected against the action and (iii) that the action was akin to an abuse of process in which proof of malice was an integral part of the action and that negligent abuse of process was not a cause of action: Held (1) section 2(5) of the 1947 Act was directed to the immunity of judicial, not administrative, functions and since the recording of the fact that an offence had been taken into consideration or communicating that fact to a particular court did not fall within the ambit of judicial functions but was instead an administrative act the Crown Prosecution Service could not claim immunity from the plaintiff's proceedings under that Act.

(2) Although the Crown Prosecution Service was immune from any action based on the failure of its advocate at the resumed hearing before the magistrates to inform the bench that the plaintiff's offences had been taken into consideration by the Crown Court, that immunity did not extend to any failure by the Crown Prosecution Service to carry out its general administrative responsibility or practice as prosecutor to keep the court informed as to the state of an adjourned criminal case or its particular responsibility to do so in the plaintiff's case by virtue of having undertaken to do so.

(3) An action in respect of acts or omissions which preceded a court process could be framed in negligence without proof of malice being required. Accordingly, since on the assumed facts the Crown Prosecution Service had a general administrative responsibility as prosecutor to keep a court informed as to the state of an adjourned criminal case or had in practice assumed such a responsibility and had done so in the plaintiff's case, the relationship between the plaintiff and the Crown Prosecution Service was sufficiently proximate for the Crown Prosecution Service to owe a duty of care to the plaintiff to see that the magistrates' court was informed that the offences committed by the plaintiff had already been taken into consideration by the Crown Court. Furthermore, it was fair, just and reasonable for such a duty to exist and there were no public policy grounds to exclude the existence of such a duty. The appeal would therefore be allowed and the plaintiff's claim reinstated in so far as it alleged negligence on the part of the Crown Prosecution Service prior to the resumed hearing before the magistrates.