Neutral Citation Number: [2018]
EWHC 1784 (QB)
Case No: D90MA146/D90MA175
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH
DIVISION
MANCHESTER
DISTRICT REGISTRY
(sitting at
Liverpool District Registry)
Liverpool Civil Justice Centre
35 Vernon Street, Liverpool, L2 2BX
Date: 12/07/2018
Before :
MRS JUSTICE YIP DBE
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In the matter of D90MA146
Between :
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AARAN CHARLTON COGHLAN
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Claimant
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- and –
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(1) CHIEF CONSTABLE OF GREATER MANCHESTER
POLICE
(2) DIRECTOR GENERAL OF THE NATIONAL CRIME
AGENCY
(3) DIRECTOR OF PUBLIC PROSECUTIONS FOR THE
CROWN PROSECUTION SERVICE
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Defendants
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Mr Nick Stanage (instructed through The Bar public access scheme) for Mr Coghlan
Fiona Barton QC (instructed by Legal
Services, Greater Manchester Police)
for the Chief Constable of
Greater Manchester Police
Jeremy Johnson QC (instructed by Weightmans LLP) for the Director General of the National Crime Agency
Jonathan Kinnear QC & Rupert Jones (instructed by The Government Legal
Department) for the Director
of Public Prosecutions for the Crown Prosecution Service
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In the matter of D90MA175
Between :
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AARAN CHARLTON COGHLAN
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Claimant
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- and –
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(2) CHIEF CONSTABLE OF MANCHESTER GREATER
POLICE
(2) DIRECTOR OF PUBLIC PROSECUTIONS FOR THE
CROWN PROSECUTION SERVICE
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Defendants
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Mr Stanage (instructed through The Bar
public access scheme) for Mr
Coghlan
Fiona Barton QC (instructed by Legal
Services, Greater Manchester Police)
for the Chief Constable of
Greater Manchester Police
Jonathan Kinnear QC & Rupert Jones (instructed by The Government Legal Department) for the Director of
Public Prosecutions for the Crown Prosecution Service
Hearing dates: 23 & 24 May 2018
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Judgment Approved
1.
This judgment deals with applications made in two sets of proceedings brought
by Mr Coghlan against the police and Crown Prosecution Service.
2.
The first case (D90MA146) relates to Mr Coghlan’s prosecution for
conspiracy to supply class A drugs (cocaine) between 1 June 2009 and 14 April
2010, referred to as “Operation Confection”. Mr Coghlan was arrested on 11
September 2010. The criminal proceedings came to an end on 8 June 2011,
when the prosecution offered no evidence. A claim form was issued on 8 June
2017 against the Chief Constable of Greater Manchester Police; the Director
General of the National Crime Agency and the Director of Public Prosecutions,
claiming damages for false imprisonment; malicious prosecution and misfeasance
in a public office. The Particulars of Claim were served on 5 October 2017. I
shall refer to this as “the Operation Confection claim”.
3.
The second case (D90MA175) relates to a charge of assault occasioning
actual bodily harm arising out of events on 18 August 2008. Mr Coghlan was
charged with that offence on 22 October 2008. That prosecution came to an end
when the Crown offered no evidence on public interest grounds on 15 July 2011.
The claim form was issued on 14 July 2017 against the Chief Constable of
Greater Manchester Police and the Director of Public Prosecutions. Particulars
of Claim were served on 13 November 2017. I shall refer to this as “the ABH
claim”.
4.
In February 2018, each defendant made applications in each case for the
summary disposal of the claims, by way of striking out pursuant to CPR 3.4 and/or
summary judgment under CPR 24.2. In March 2018, those applications were listed
for hearing on 23 and 24 May 2018.
5.
On 11 May 2018, Mr Coghlan made an application for an order that “the
Court appoints Special Counsel” and that “the Defendants’ applications be adjourned
generally pending the completion of the review of disclosure by Special
Counsel”.
6.
I heard all the applications together, on the basis that if I concluded
that it was appropriate for Special Counsel to be appointed and to be involved
in a review of disclosure prior to determination of the defendants’
applications, I would then adjourn those applications before ruling on them.
7.
Mr Coghlan was represented at the hearing by Mr Stanage of Counsel, who
was instructed on a direct access basis. I recognise that he did his best to
assist the court while vigorously pursuing his client’s position. This was not
an easy task. He had been instructed at short notice and came to the case
afresh. He also had to deal with several interventions from Mr Coghlan with
additional instructions being given during the hearing. I allowed a
significant amount of time for Mr Stanage and Mr Coghlan to confer. Some would
say I was too indulgent. Certainly, I believe that the claimant was given
every opportunity to “put his case in order”. I am grateful to Leading Counsel
who appeared for the defendants for their well-focused submissions and
pragmatism in dealing with the hearing so that it could still be concluded
within the time estimate.
8.
I also record that some concerns were raised by the claimant about
delays in papers reaching me before the hearing. As I indicated to the
parties, there was no difficulty at all with the papers in the end. I had been
able to pre-read sufficiently and was afforded ample time to read everything during
adjournments.
9.
The claimant’s position was not entirely clear until the afternoon of
the second day of the hearing when a number of further documents were produced.
Through Mr Stanage, he conceded that the Operation Confection claim could not
proceed on the basis of the case currently pleaded in the Particulars of
Claim. That concession was not made in relation to the ABH claim. The
claimant maintained his request for the defendants’ applications to be adjourned.
The basis on which the court was invited to adjourn was reduced to writing in
an email timed at 14.22. This included seeking orders for the following:
(i)
Permission to substitute “The National Crime Agency” for “The Director
General of the National Crime Agency” as second defendant in the Operation
Confection claim.
(ii)
Permission to amend the Particulars of Claim in the Operation Confection
claim. (Another email timed at 14.06 provided an outline of the proposed
amendment, although no draft Amended Particulars of Claim have been produced.)
(iii)
A declaration that both claims are proceedings in which a closed material
application may be made to the court, pursuant to section 6 of the Justice and
Security Act 2013. Alternatively, a declaration that “the non-statutory closed
material procedure be ordered by the Court’s own motion.”
10.
Mr Coghlan’s position had therefore shifted. He had not made a formal
application to amend his Particulars of Claim or to substitute the second
defendant in the Operation Confection claim. The defendants allowed Mr Stanage
to make the applications that he did and opposed them on their merits rather
than taking procedural points. However, they fairly pointed to the very late
stage at which the claimant was seeking permission to amend his claim. That
approach was sensible since it allowed all matters to be aired and for me to
look at the wider picture, including whether there was any realistic prospect
that adjourning the defendants’ applications would allow for any deficiencies
in the claims to be cured.
11.
At the end of the hearing, Mr Coghlan sought to address me directly. I
did not consider that appropriate given that he was represented by Counsel and
that I was not hearing evidence. Mr Coghlan reacted with what he describes as
an outburst. This was short-lived, and I recognised that he was upset at the
time. Immediately after the hearing, Mr Stanage asked to see me to apologise
on Mr Coghlan’s behalf. I indicated via my clerk that there was no need, the
apology was accepted, I understood emotions can run high and it would have no
bearing on the outcome. Having said and meant that, I mention it only because
Mr Coghlan has since written to me via my clerk providing an explanation and further
submissions as to the defendants’ conduct. Having ensured that the defendants
have had sight of his letter dated 18 June 2018, I have taken what Mr Coghlan
says into consideration.
12.
The merits of the claimant’s application for an adjournment cannot be
divorced from the merits of the defendants’ applications. By hearing
submissions on all the applications before ruling on any of them, I have been
able to weigh everything in the balance. When considering the defendants’
applications, I have had in mind at all stages that the claimant seeks an
adjournment and an opportunity to strengthen the pleaded case.
The factual background
13.
There is a significant history to these matters, which Mr Coghlan was
keen I should recognise. He provided me with lengthy statements and a total of
three bundles of exhibits, all of which I have considered.
14.
Mr Coghlan maintains that the prosecutions giving rise to these claims
are “intrinsically linked” to previous unsuccessful prosecutions. His case is
that the defendants in the claims before me are determined to see him convicted
of a serious offence “at all costs”. He has been charged with murder on three
occasions. He was tried for the July 1994 murder of a man named Chris Little
and acquitted by the jury. He was subsequently charged with the kidnapping and
murder of David Barnshaw in September 1999. The indictment in that case was
stayed by Penry-Davey J on 16 June 2003. I have read the ruling in full. It
is extremely troubling. The judge concluded that important material had been
deliberately withheld from the defence and from prosecuting counsel and the
court.
15.
On 9 February 2010, Stephen Akinyemi died at Mr Coghlan’s home. Mr
Coghlan was found with serious knife wounds; Mr Akinyemi had been shot. On 13
February 2010, Mr Coghlan was charged with murder. He maintained that Mr
Akinyemi had brought the weapons to the scene and had died as Mr Coghlan sought
to defend himself from a violent attack. On 29 July 2010, at Liverpool Crown
Court, the Crown offered no evidence and a not guilty verdict was entered. Mr
Coghlan brought a claim in similar terms to the ones I am concerned with
against the Chief Constable of Cheshire Police; the Chief Constable of Greater
Manchester Police and the Director General of the National Crime Agency. That
claim was summarily determined in the defendants’ favour by Mr Edward Pepperrall
QC, sitting as a Deputy High Court Judge, on 17 January 2018 (see Coghlan v Chief Constable of Cheshire Police and
others [2018] EWHC 34 (QB)). That judgment provides useful
additional background, which I need not repeat.
The ABH claim
16.
On 18 August 2008, there was an altercation between Mr Coghlan and two
police officers, Sergeant McDonald and Constable Kiomasy. Mr Coghlan does not
dispute that he struck the officers and that he did so without them having used
any force on him. McDonald suffered a cut lip and Kiomasy sustained a broken
nose. Mr Coghlan maintains, as he has from the outset, that he did not know
the men were police officers, he believed he was about to be attacked and that
his pre-emptive strike was self-defence.
17.
Mr Coghlan was arrested at the scene. He was interviewed on three
occasions, on 19 and 20 August 2008 and on 8 October 2008. The transcripts of
those interviews are lengthy. The account Mr Coghlan gave then is consistent
with the facts pleaded in his Particulars of Claim. He gave reasons for being
in fear for his safety, including that he had been warned by the police of
threats to his life. His account also contained relevant admissions, including
that he had not driven away from the scene when the opportunity was there; he
had called friends for assistance and that the officers’ car had been boxed in
by his associates. The only issue was whether Mr Coghlan was acting in
reasonable self-defence.
18.
Mr Coghlan is particularly concerned with an issue as to whether or not he
knew or could have been expected to know that the men were police officers. I
will assume at this stage that if the matter went to trial he would establish
that he could not have known this.
19.
Mr Coghlan places heavy reliance on the involvement of Detective
Inspector Moran as the senior investigating officer. He claims that DI Moran
was involved in the David Barnshaw murder case and was one the officers
involved in supressing disclosure. His case is that DI Moran became involved
in this case and had another go at “fitting him up”. He maintains DI Moran
attempted to hide his involvement. Mr Coghlan also contends that another
officer implicated in what occurred in the Barnshaw prosecution (Detective Chief
Superintendent Shenton) was involved in the ABH case. He vigorously maintains
that the ABH prosecution was motivated by the officers’ malice.
20.
One of the documents supplied at the end of the hearing was headed
“Position Note on DI Moran”. This was provided after I had questioned in the
course of submissions why DI Moran’s involvement was relevant to the issues I
had to determine at this stage. I wondered whether Mr Coghlan had understood
that I was not required to determine the issue of malice. The conclusion at the
end of that note was that DI Moran “was the prosecutor” and that “he influenced
(in a malign way) the whole process ... and took a series of steps to avoid the
CPS exercising independent judgment.” Insofar as the submissions were
addressed towards the issue of whether there was any real prospect of
establishing that he was prosecuted by the Chief Constable, I have considered
what he says about the role of DI Moran.
21.
I have been provided with an extract of a file note which records a
review on 21 October 2008 by Ian Lee of Manchester Crown Prosecution Service. The
pages which were disclosed and appear in the defendants’ bundle have some
redactions. After this was queried, Mr Kinnear QC reviewed the document and
produced a new version of the first and last page, which revealed the contents
of two sections that had previously been blanked out. The explanation for
removing these sections originally was that they were not part of the note of
the relevant review decision. A passage on the final page remained redacted.
By the time this issue arose, Mr Coghlan had indicated an intention to
discontinue his claim against the DPP. However, Mr Kinnear continued to assist
the court with the document. He said that he had personally reviewed the
unredacted document and that the remaining redaction concerned something in
respect of which privilege would be claimed on PII grounds.
22.
Amongst the documents served on the afternoon of the second day of the
hearing was a document headed “Redacted Document: Application for the court to
review the whole document and the redacted section and to disclose to the
claimant”. There was no attempt to identify the basis of the application by
reference to a rule or Practice Direction. There was no formal application
before the court. While I acknowledge that judges have expressed real concerns
about disclosure in previous criminal proceedings and that this fuels Mr
Coghlan’s belief that disclosure is not being dealt with properly in this case,
it would have been inappropriate to embark on hearing an application for
disclosure of the unredacted document in this manner. Mr Stanage did not press
this ‘application’.
23.
From the material before me, it is apparent that Mr Lee attended a
conference with counsel on 21 October 2008. DI Moran, DS Hudson and Nicola
Moore were present. The evidence was reviewed. Mr Lee noted that Mr Coghlan
admitted assault but claimed he was acting in self-defence. He concluded that
whatever Mr Coghlan said about his honest belief that he was under threat he
could not be said to have acted reasonably and proportionately. He said that
Mr Coghlan took the fight to the officers and had a number of opportunities to
leave but chose not to.
24.
Mr Coghlan was charged with assault occasioning actual bodily harm, the
following day, 22 October 2008.
25.
Mr Coghlan was due to stand trial on the ABH charge in September 2009.
However, the trial was vacated. It was relisted for April 2010. In the
interim, Mr Coghlan was arrested and charged with the Akinyemi murder. On the
claimant’s application, the ABH trial was postponed until the conclusion of the
murder proceedings. The prosecution offered no evidence in that case in July
2010 and the claimant was released from custody. The ABH trial was relisted
but was again vacated after the claimant was charged with the Operation
Confection conspiracy. After the discontinuance of that prosecution, a
conference with counsel took place on 23 June 2011. The note of that
conference indicates that it was agreed that the combined effect of the age of
the offence together with the amount of time spent on remand would render any
sentence negligible. The Crown Prosecution Service decided to offer no evidence,
on the ground that it was no longer in the public interest to prosecute.
26.
At the outset of the hearing, Mr Stanage confirmed that the ABH claim
was now pursued only against the Chief Constable and only on the basis of
malicious prosecution. The claimant wished to discontinue his claim against
the DPP and to amend the claim form to remove his claims for false imprisonment
and misfeasance in a public office against the Chief Constable.
The Operation Confection claim
27.
Mr Coghlan was arrested at Manchester Airport on 10 September 2010 by
officers of the Serious Organised Crime Agency (the predecessor of the National
Crime Agency). His arrest arose out of a police investigation code-named “Confection”
into the importation, distribution and supply of cocaine.
28.
Mr Coghlan was interviewed on 11 September 2010 and provided a prepared
statement denying the allegations.
29.
By the time that Mr Coghlan was arrested, fourteen other defendants had
already been arrested and charged in connection with Operation Confection. The
claimant points to an intelligence briefing on 13 April 2010 at which one of
the Greater Manchester Police officers (Officer Hull) made a note in his
notebook that there was no evidence to support charges against Coghlan and “he
was not to be mentioned by GMP”.
30.
Mr Coghlan was charged with conspiracy to supply cocaine on 11 September
2010. A note of that date by Andrew Penhale, Unit head of the CPS Organised
Crime Division (North), records his decision that Mr Coghlan should be charged.
He had reviewed a case summary drafted by counsel; pre-interview disclosure and
Mr Coghlan’s statement. He recorded that there had been thorough discussions
involving the reviewing lawyer, counsel, Greater Manchester Police and SOCA.
31.
It is the claimant’s case that the defendants set out to falsely
implicate him in the drug offences by inventing a global conspiracy by amalgamating
a series of unrelated conspiracies and alleging that he sat at the top. He
alleges that evidence was fabricated to support this. He relies in particular
on mis-transcription of recordings obtained from a probe; what he says was the
deliberate false creation of a telephone call between other alleged
conspirators (which became known as the Mel/El call) and erroneous evidence
about another call on 3 November 2009. Against the background of what happened
in the Barnshaw murder case, the mis-transcription of the probe recordings and the
erroneous reporting of telephone evidence does raise concerns.
32.
On 20 January 2011, HHJ Brown gave a ruling on an application to dismiss
following a four-day hearing at Liverpool Crown Court. The judge scrutinised
the evidence. This included the amended transcripts of the probe evidence. He
said that it would come as no surprise to the Prosecution that he was concerned
about what had occurred with that evidence. He was basing his observations on
the revised (that is corrected) transcripts. He considered that the probe
evidence was at best ambiguous and at worst had been completely misunderstood.
He left it out of account in determining the application. HHJ Brown heard
argument about the Mel/El telephone call. At that stage, the Crown were still
asserting that the call had taken place although the defence told him that did
not fit with billing records. The judge referred to the call in his ruling
without giving it any particular prominence. He also considered events on 3
November 2009, referring to a schedule of telephone traffic between
conspirators. The judge did take account of the contentious call (Barnes to
Hartwell at 18.29, alleged to have been for 2 minutes but in fact lasting only
4 seconds) but this was only one of a significant number of calls that day
which he considered. HHJ Brown concluded that there was a case for Mr Coghlan
to answer and that the application should be dismissed.
33.
It appears that HHJ Brown took a robust view in relation to disclosure.
He said that he understood why the defence were sceptical and suspicious about
the present situation and stressed the need for careful review of the
disclosure exercise.
34.
On 13 May 2011, Special Counsel was appointed. In a note to counsel
dated 16 May 2011 HHJ Brown said “It is important to stress that Special Counsel
has been appointed in respect of three discrete areas of sensitive material and
not in relation to disclosure as a whole. Therefore, the ambit of her
involvement is limited though the prosecution have informed me they will show
her any material she wishes to see.” HHJ Brown also noted that day that he had
told Special Counsel what the case was about in general terms and had
identified to her that “one of the key issues was whether there was one or more
than one conspiracy. In particular as regards the events of the 3rd
November 2009 and whether these were part of the conspiracy charged.”
35.
Mr Coghlan contends that the Operation Confection prosecution against
him collapsed “because of what Special Counsel uncovered.” He also asserts
that Special Counsel had barely made a start and suggests there was clearly far
more sensitive material not seen by Special Counsel.
36.
On 9 June 2011, at a hearing before HHJ Brown at Liverpool Crown Court,
Leading Counsel for the Prosecution, Brian Cummings QC, offered no evidence
against Mr Coghlan and two co-defendants. Special Counsel were in court for
the hearing. Mr Cummings told the court that “in light of evidential and other
developments the prosecution no longer considers that there is strong evidence
to prove this nexus as against these defendants in this trial.” He went on to
tell the court that the prosecution no longer considered it to be in the public
interest to proceed. That must be read in light of a note provided by Mr
Cummings to the judge on 10 June 2011. In that note, Mr Cummings indicated
that Mr Penhale, the lawyer who took the decision, had expressed concern that
what he said in court did not accurately reflect Mr Penhale’s reasons for his
decision. Mr Penhale’s simple point was that the decision was taken purely on
the basis of the first limb of the CPS’s Full Code Test (i.e. that there was no
longer sufficient evidence to provide a realistic prospect of conviction).
37.
The claimant says that there was never a realistic prospect of
conviction. That was the case at the outset as evidenced by Officer Hull’s
notebook entry and it was the case at the end as evidenced by the decision to
offer no evidence and the reasons for that. Further, the claimant relies upon
what he says was a “remarkable” concession made in proceedings in the Court of
Appeal Criminal Division, concerning Elliott Hartwell. Hartwell pleaded guilty
to the conspiracy alleged and was sentenced on the basis that he had an
organisational role. He was said to have been the link between the architect
of the conspiracy (Simon Dutton) and Mr Coghlan. In the context of appeals
against conviction and sentence by Hartwell, Counsel for the Crown, Mr
Ainsworth, conceded that contact between him and Mr Coghlan could no longer be
relied upon as evidence of Hartwell’s involvement in the conspiracy. Mr
Coghlan states that Mr Ainsworth went so far as to concede that if the case
were to be started again his name would not feature in any summary of the Crown’s
case. He relies upon what he described as the two “bookends”, namely the note
of Officer Hull at the start and the concession made to the Court of Appeal at
the end, as demonstrating that there was never any realistic prospect of his conviction.
I have considered the Court of Appeal’s judgment in R v Hartwell [2016] EWCA Crim 42
and will return to this in due course.
38.
As I have indicated, the claimant accepts that the Operation Confection
claim cannot proceed as currently pleaded. He seeks permission to amend his
Particulars of Claim generally and to substitute the National Crime Agency as
second defendant. The claims for false imprisonment and misfeasance in a
public office included in the claim form are not pursued. As with the other
claim, this is now a claim for malicious prosecution only.
Application to appoint Special Counsel
39.
Having set out the background to these claims, I shall deal with the
claimant’s application dated 11 May 2018 first. That application sought an
order that “The Court appoints Special Counsel to review the disclosure
process” and that “The Defendants’ applications be adjourned generally with
liberty to restore pending the completion of the review of disclosure by
Special Counsel.” The application did not identify the basis on which it was
claimed the court had jurisdiction to make such an order.
40.
In his skeleton argument, Mr Stanage referred to Part 2 of the Justice
and Security Act 2013 as containing the relevant law. In his oral submissions,
he suggested that the court could alternatively make the order outside the
statutory scheme of its own motion.
41.
Section 6 of the Justice and Security Act 2013 provides that a court
seised of relevant civil proceedings may make a declaration that the
proceedings are proceedings in which a closed material application may be made
to the court. Such an application may be made if two conditions are met. The
first is that a party would be required to disclose sensitive material or would
be required to make such a disclosure but for the possibility of claiming
public interest immunity; the fact that there would be no requirement to
disclose it if the party chose not to rely on it or by virtue of section 17(1)
of the Regulation of Investigatory Powers Act 2000 or any other enactment. The
second condition is that it is in the interests of the fair and effective
administration of justice in the proceedings to make a declaration.
42.
“Sensitive material” is defined in section 6(11) as “material the
disclosure of which would be damaging to the interests of national security.”
43.
Section 9(1) of the Act allows for the appointment of a special advocate
to represent the interests of a party in any section 6 proceedings from which the
party (and any legal representative of the party is excluded).
44.
CPR Part 82 contains the procedural rules applicable to proceedings to
which section 6 applies. Rule 82.2 modifies the overriding objective, with
r.82.2(2) providing:
“The court must ensure that information is not disclosed in a
way which would be damaging to the interests of national security.”
Rule 82.9 provides the procedure
through which the Attorney General may be asked to appoint a special advocate.
Rule 82.21 provides that any person who intends to apply for a declaration
under section 6(2) of the Act must give at least 14 days written notice of that
intention to the court, every other party to the relevant proceedings and to
the Secretary of State. An application for a declaration under section 6(2) is
governed by r.82.22 and requires the applicant to file specific material,
including a statement of reasons to support the application and material on
which the court is asked to find that the first condition in section 6 is met.
45.
Mr Stanage referred to the decision of the High Court in Northern
Ireland in Morley v Ministry of Defence [2017] NIQB 8 at paragraphs 13 and 14. In reality, this simply provides a summary of
the statutory provisions in which it is correctly identified that the two
statutory conditions must be met before the court can make a declaration under
section 6 and that even then the court retains a discretion to refuse to make a
declaration. He also referred to CF v Security Service [2014] 1 WLR 1699, in particular paragraph 36 where Irwin J held that the court may make
a declaration, and adopt a closed material procedure, before disclosure has
been given and without a PII claim having been made or determined.
46.
The reliance on CF by the claimant is a little curious. I
believe it was cited in response to the contention in Ms Barton QC’s skeleton
argument that the application was “premature in that it would only be
appropriate to consider this issue when the disclosure process is complete and
public interest immunity is said to attach to a document or documents.”
However, it is notable that the context of the decision in CF was one
involving strong objections by the claimants as to the inherent unfairness (to
claimants) of closed material procedures. The claimants asserted that the PII
process is necessarily fairer than the process which would follow a declaration
under section 6 of the Act.
47.
Consideration of the statutory provisions, CPR Part 82 and the
authorities cited by Mr Stanage (including CF and Rahmatullah v Ministry of Defence
[2017] EWHC 547 (QB)) simply demonstrates that the claimant’s application for a
declaration under section 6 is wholly misconceived.
48.
The claimant has not even attempted to comply with Part 82. There is no
material before the court to begin to justify a finding that the first
condition in section 6 is met. At the end of the hearing, the claimant
provided a document headed “Classes of sensitive material for which Public
Interest Immunity (PII) would be claimed”. The categories identified are:
A.
Intrusive surveillance of the Claimant, his vehicles, home and office
premises
B.
Grice probe material
C. NCA/GMP Officers’ notebooks
D. Dutton phones
E. Hartwell probes
F. Mel/El call
G. 3 November 2009: Hartwell
H. 3 November
2009: The Hartwell call
I. Operation Confection/ Separate Conspiracies
49.
There is nothing within any of these categories that could even remotely
be said to satisfy the first condition. Indeed, it would appear that the
claimant seeks to apply his own definition of “sensitive material” rather than
looking to the statute. The statutory definition is “material which would be
damaging to the interests of national security”. I accept that the defendants
are likely to have material which they would seek to withhold on grounds of
public interest immunity but there is no reason to believe that any such
material would be damaging to the interests of national security. The best
that Mr Stanage could do in his submissions was to say that there was “an
international element” to the Operation Confection investigation; the claimant
did not know what material existed but that “somewhere within what there is,
there is likely to be something touching on national security”. With respect,
that is hopeless.
50.
There is no possible basis for a declaration under section 6. In my
judgment, the claimant’s attempt to use this to justify an adjournment of the
defendants’ applications subverts the purpose of the procedure under Part 2 of
the Justice and Security Act 2013.
51.
Further, the suggestion that the court has an inherent jurisdiction to
adopt a closed material procedure and to appoint a special advocate in an
ordinary civil claim for damages is answered by Al Rawi v Security Service [2011] UKSC 34. There is no such common law power.
52.
I dismiss the claimant’s application dated 11 May 2018. This
application was bound to fail and wholly failed to address the basis upon which
the court had power to make the order sought. It was totally without merit and
should be recorded as such.
Legal principles – malicious prosecution
53.
It is well established (see Lord Keith of Kinkel in Martin v Watson
[1996] AC 74 at 80C) that in an action for malicious prosecution, a claimant
must prove that:
(i)
he was prosecuted by the defendant in question;
(ii)
the prosecution was determined in his favour;
(iii)
it was without reasonable and probable cause;
(iv)
it was malicious.
54.
In each case, the Director of Public Prosecutions admits to being the
prosecutor. She maintains that there was reasonable and probable cause for the
prosecution and denies any malice. The other two defendants deny prosecuting
the claimant. In the case of the Director General of the National Crime Agency,
it is now conceded that she is not vicariously liable for the officers in
question and therefore that she has been wrongly named. The claimant seeks to
substitute “the National Crime Agency”. That application is resisted by Mr
Johnson QC on various grounds, including that there are no reasonable grounds
for maintaining a claim against the NCA.
55.
The authorities concerning the principles to be applied in determining
whether a defendant will be held to be a prosecutor for the purpose of the tort
of malicious prosecution were recently reviewed by Wyn Williams J in Moucher & others v Chief Constable of South Wales
Police [2016] EWHC 1367 (QB). At para. 446 he said:
“It is now well established that a person who simply provides
information to the police or the Crown Prosecution Service upon which a
decision to prosecute is then made cannot be liable for the tort of malicious
prosecution even if the information which he provides is false and even if he
knows the information to be false. However, a person will be liable for the
tort if (1) he falsely and maliciously provides information about an alleged
crime, expresses a willingness to testify against the alleged perpetrator and
desires and intends that a prosecution should be brought against the alleged
perpetrator (2) the facts relating to the alleged crime are exclusively within
the knowledge of the person providing the information so that it is impossible
for the person to whom it is imparted to exercise any independent judgment in
the matter and (3) the conduct of the person providing the information is such
that he makes it virtually inevitable that a prosecution will result from his
complaint.”
56.
A similar review of the authorities was conducted by Mitting J in Rees & others v Commissioner of Police for the Metropolis
[2017] EWHC 273 (QB). At paragraph 144, the judge concluded:
“The case law establishes that an individual or group of
individuals may be treated as the prosecutor where
(i)
they alone know the facts about the alleged offence.
(ii)
they deliberately misstate the facts to the person who makes the
decision to lay the charge and so start the criminal process.
(iii)
they intend that there should be a prosecution.
(iv)
the person who decides that the charge should be laid and prosecution
brought cannot be expected to and does not form an independent judgment on the
question whether or not a charge should be laid and if so which.”
Since circulating my judgment
in draft, the Court of Appeal have given judgment, overturning Mitting J’s
decision on the facts. See Rees v Commissioner of Police for the Metropolis
[2018] EWCA Civ 1587. However, the Court of Appeal (at para.45) endorsed
Mitting J’s summary, noting also his citation of a passage from the judgment of
Brooke LJ in Mahon v Rahn [2000] 1 WLR 2150,
paragraph 269:
"In a simple case it may be possible to determine the
issue quite easily by asking these questions. (1) Did A desire and intend that
B should be prosecuted? (2) If so, were the facts so peculiarly within A's
knowledge that it was virtually impossible for the professional prosecutor to
exercise any independent discretion or judgment? (3) Has A procured the institution
of proceedings by the professional prosecutor, either by furnishing information
which he knew to be false, or by withholding information which he knew to be
true, or both?"
57.
I do not think I can usefully add to those recent and comprehensive
reviews of the authorities on the issue of whether a defendant is to be treated
as a prosecutor and adopt what is set out above as helpful summaries of the
correct legal principles.
58.
Both prosecutions were determined in the claimant’s favour, so that
element need not be considered further.
59.
Each element of the tort must be proved by the claimant. It is
important to appreciate that absence of reasonable and probable cause and
malice must be established separately. Want of reasonable and probable cause
cannot be inferred from malice: see Sharp J in Qema v News Group Newspapers Limited
[2012] EWHC 1146 (QB) [58].
60.
In Glinski v McIver [1962] AC 725 at 758, Lord Denning restated
the rule of law that:
“In order to succeed in an action for malicious prosecution,
the plaintiff must prove to the satisfaction of the judge that, at the time
when the charge was made, there was an absence of reasonable and probable cause
for the prosecution.”
61.
The prosecutor must act honestly as well as reasonably. This involves
an objective issue and a subjective one, see Dallison v Caffery [1965] 1
QB 348 at 371, per Diplock LJ:
“The test whether there was a reasonable and probable cause
for the arrest or prosecution is an objective one, namely, whether a reasonable
man, assumed to know the law and possessed of the information which was in fact
possessed by the defendant, would believe that there was a reasonable and
probable cause. Where that test is satisfied, the onus is on the person who has
been arrested or prosecuted to established that his arrestor of prosecutor did
not in fact believe what ex hypothesi he would have believed had he been
reasonable.”
62.
In Herniman v Smith [1938] AC 305 [319], Lord Atkin said:
“his duty is not to ascertain whether there is a defence, but
whether there is a reasonable and probable cause for the prosecution.”
On the other hand, a defence such
as self-defence cannot be ignored in considering reasonable and probable
cause. See Paul v Chief Constable of Humberside Police
[2004] EWCA Civ 308 where the Court of Appeal found that there was a case to go
to the jury that the police did not honestly believe that the claimant had had
acted unlawfully where they had downplayed or ignored “the growing volume of
supportive evidence that he had, or might have been acting in reasonable
self-defence”.
63.
I recognise that the issue of malice would be a significant and hotly contested
one at trial. The claimant vigorously asserts that both prosecutions were
malicious, motivated by a desire to see him convicted “at all costs”. This is
denied by the defendants. However, the issue is not central to the
determination of the applications before me at this stage and I can therefore
deal with the legal position in relation to this issue briefly.
64.
Malice “covers not only spite and ill-will but also any motive other
than a desire to bring a criminal to justice” per Lord Devlin in Glinski v
McIver p766.
65.
In Scott v Home Office [2009] EWCA Civ 1215, Longmore LJ said [47]:
“It is usually impossible to decide any issue of the bad
faith elements of malicious prosecution in summary proceedings”
However, there must be some
evidence of malice and there must be a case that is capable of succeeding.
Principles applicable to strike out / summary judgment
applications
66.
CPR r.3.4(2)(a) provides that:
“The court may strike out a statement of case if it appears
to the court –
(a) that
the statement of case discloses no reasonable grounds for bringing or defending
the claim,”
67.
CPR r 24.2 provides that:
“The court may give summary judgment against a claimant … on
the whole of a claim or on a particular issue if –
(a) it considers
that –
(i)
that the claimant has no real prospect of succeeding on the claim or
issue;”
… and
(b) there
is no other compelling reason why the case or issue should be disposed of at
trial.”
68.
In James-Bowen & Others v Commissioner of Police for
the Metropolis [2016] EWCA Civ 1217, the Court of Appeal noted
that defendants seeking to challenge claims at an early stage will frequently
seek to rely on both provisions but that it is important to appreciate that
they provide different grounds of relief. An application under r.3.4(2)(a) is
concerned with striking out defective statements of case. It requires the
court to examine the statements of case to decide whether the allegations, if
established, are capable as a matter of law of supporting the claim. Part 24
is concerned with the prospects of success, in relation to which Moore-Bick LJ
said:
“It proceeds primarily on the assumption that the statement
of case is not defective as a matter of law, but that the pleaded case has no
real prospect of being made good at trial. Inevitably the two overlap when the
pleaded case is said to be bad in law, because a case which is bad in law has
no prospect of success, but in principle it is desirable not to confuse the
different procedures.”
69.
In relation to an application to strike out under r.3.4(2)(a), it should
be assumed that the claimant will be able to establish the facts pleaded in the
Particulars of Claim (see TBS v Metropolitan Police Commissioner
[2017] EWHC 3094 (QB) at [7]).
70.
An application for summary judgment may succeed where a strike out
application would not but the court should be satisfied that all substantial
facts relevant to alleged cause of action are before the court and that there
is no real prospect of oral evidence affecting the court’s assessment of the
facts (see S v Gloucestershire County Council [2001] Fam 313).
71.
The court will not strike a claim out or give summary judgment lightly.
A claim is only to be struck out if it is clear and obvious that the claim, as
pleaded, cannot succeed. I bear in mind what Judge LJ said in Swain v Hillman [2001] 1 All ER 91:
“To give summary judgment against a litigant on papers
without permitting him to advance his case before the hearing is a serious step.”
Application to Amend the Particulars of Claim
72.
CPR Part 17 deals with amendments to statements of case. The claimant
requires the court’s permission to amend his Particulars of Claim.
73.
In Kim v Park [2011] EWHC 1781 (QB), Tugendhat J said:
“where the court holds that there is a defect in the
pleading, it is normal for the court to refrain from striking out that pleading
unless the court has given the party concerned an opportunity of putting right
the defect, provided that there is reason to believe that he will be in a
position to put the defect right.”
74.
The court’s general power to grant permission for the Particulars of
Claim to be amended is subject to the special provisions set out in CPR r.19.5
where the amendment involves the addition or substitution of a party after the
end of a relevant limitation period as is the case here.
Analysis of the ABH claim
75.
Simply considering the Particulars of Claim reveals that this claim is
hopeless against both defendants. Without meaning any disrespect to Mr Stanage
who has done his best to put his client’s case, his skeleton argument in
relation to this claim is very weak.
76.
The claimant does not wish to continue his claim against the Director of
Public Prosecutions. He is right to recognise that he could not succeed
against the DPP. The Particulars of Claim (which I understand to have been
pleaded by the claimant himself) contain no allegations of malice on the part
of the DPP or anyone acting for the CPS. Further, the case as pleaded puts
forward no basis for a finding of lack of reasonable and probable cause on the
DPP’s part.
77.
The claimant having acknowledged that the claim against the DPP cannot
succeed but not having formally discontinued against her, I strike out the
claim against her under CPR 3.4(2)(a) since the Particulars of Claim disclose
no reasonable grounds for bringing such a claim.
78.
The Claimant did not allege in the Particulars of Claim that he was
prosecuted by the Chief Constable. He acknowledged that the Chief Constable was
likely to contend he was not the prosecutor and admitted he had no knowledge of
who took the decision to charge him. He asserted that the Chief Constable has
“potential liability for the prosecution” and suggested that he would only have
the necessary knowledge as to who was the prosecutor following disclosure.
79.
Within the defendants’ bundle is a CPS record dated 21 October 2008
prepared by Ian Lee, the reviewing lawyer. It is clear from this that the
decision to charge the claimant, and as to which charge to lay, was taken by
the CPS, following a conference with Counsel. Mr Lee had been provided with
evidence including statements from the police; a note relating to forensic
analysis of blood staining; medical evidence and transcripts of the claimant’s
interview. The claimant’s case that he was acting in self-defence was
considered by Mr Lee. He concluded:
“Whatever is said about his honest belief that he was under
threat from an imminent attack, he cannot in my view be said to have acted
reasonably and proportionately to the threat. The threat was in his own mind.
He had options to leave the scene … He took the fight to the police officers.
He called for support and with that support he boxed in the officers so that
they couldn’t get away. … He had a number of opportunities to leave but chose
not to. For those reasons I do not feel his defence to be credible.”
80.
In light of that note, the claimant cannot properly maintain that the
prosecution was brought by the Chief Constable. By her Defence, the DPP admitted
that she (acting through the reviewing lawyer, Mr Lee) had made the decision to
charge the claimant. She said that “This was the independent decision of a
professional prosecutor” and that it “was based purely on the evidence before
him”. That is entirely supported by the note. There is nothing within the
claimant’s pleaded case that is capable of establishing that the Chief
Constable in any way prevented the CPS from exercising independent judgment.
On the contrary, it is clear that Mr Lee exercised a judgment, having sought
advice from Counsel, which largely depended on his assessment of the claimant’s
own account.
81.
Had the claimant sought pre-action disclosure, he would have obtained a
copy of this note prior to pleading his case. Having not done so, I do not
consider it appropriate for him to contend that he was unable to put forward a
positive case on the first limb of the tort, namely that he was prosecuted by
the Chief Constable.
82.
The claimant has pleaded a case in relation to malice against the Chief
Constable. However, as Sharp J said in Qema, want of reasonable and
probable cause cannot be inferred from malice. Even on his own case, there was
a case for him to answer on the assault charges. The charges could properly
have been left to a jury. The subsequent decision not to proceed with this
prosecution was taken on the basis of the public interest test rather than the
evidential test. The analysis of Mr Lee as to the reasonableness and
proportionality of the claimant’s use of force is perfectly logical. The
claimant’s case is not capable of establishing want of reasonable and probable
cause.
83.
There is no application to amend the Particulars of Claim in this matter
and no basis to think that any further disclosure could assist the claimant. In
my judgment, the claimant’s pleaded case does not disclose any reasonable
grounds for bringing a claim against the Chief Constable. Accordingly, the
claim should be struck out in its entirety against both defendants under CPR
3.4(2)(a).
84.
Had I concluded that the allegations as pleaded against the Chief
Constable were capable, if established, of supporting a claim for malicious
prosecution as a matter of law, I would nevertheless have given summary
judgment for the Chief Constable under CPR Part 24 on the ground that the
claimant has no real prospect of succeeding on the claim, having regard to the
contents of Mr Lee’s note.
85.
Having struck out the claim under r.3.4, I am required to consider
whether this claim was totally without merit. In my view it was. A finding
that the Particulars of Claim disclose no reasonable grounds for bringing it
and/or that there is no reasonable prospect of succeeding on the claim cannot
lead automatically to it being totally without merit. In R (Wasif) v Secretary of State for the Home Department
[2016] EWCA Civ 82, the Court of Appeal distinguished cases that were “bound to
fail” or “hopeless” from those in which the claimant “has identified a rational argument in support of his claim but
where the judge is confident that, even taking the case at its highest, it is
wrong.” I have in mind what Maurice Kay LJ said in R(Grace) v Secretary of State for the Home Department
[2014] EWCA Civ 1091:
“[N]o judge will certify an application as TWM unless he is
confident after careful consideration that the case truly is bound to fail. He
or she will no doubt have in mind the seriousness of the issue and the
consequences of his decision in the particular case.”
The consequence here is that
recording the claim was totally without merit will require me to go on to
consider whether it is appropriate to make a civil restraint order.
Analysis of Operation Confection claim
86.
The claimant, through Mr Stanage, concedes that the claim cannot succeed
on the basis of the Particulars of Claim as currently pleaded. I repeatedly
invited Mr Stanage to address the claimant’s case by reference to the correct
legal framework. It is fair to say that his submissions were vague. The
claimant was given the opportunity to identify how he would propose amending
the Particulars of Claim. Mr Stanage’s emailed document timed at 14.06 on 24
May 2018 purported to do that, although I am not convinced that this really
addressed deficiencies in the Particulars of Claim rather than simply
highlighting evidence that might be relied upon.
87.
It is further conceded that the claim against the currently named second
defendant, the Director General of the National Crime Agency cannot be
maintained. The claim is put on the basis of vicarious liability for the acts
of officers from the Serious Organised Crime Agency. SOCA became the National
Crime Agency pursuant to the Crime and Courts Act 2013. For the purpose of
this application, the parties are agreed that the Director General cannot, as a
matter of law, be vicariously liable for the conduct of the officers concerned
and that the correct defendant so far as the allegations against SOCA officers
are concerned would be the National Crime Agency.
88.
The claimant therefore seeks to amend his Particulars of Claim to
substitute the National Crime Agency as second defendant and generally to
correct deficiencies in the pleaded case. He invites the court to adjourn the
defendants’ applications and to direct that he amends his Particulars of Claim
rather than striking the claim out at this stage.
89.
For reasons which will become apparent, I intend to deal first with the
defendants’ applications in relation to this claim (and the claimant’s
cross-application to amend his Particulars of Claim generally) as though the
second defendant were correctly named as the National Crime Agency and I will
then return to the application to substitute the NCA for the Director General.
90.
The claimant is, as the defendants put it, “trying to ride two horses”.
In the Particulars of Claim, he asserts that he has no knowledge of who took
the decision to charge him and that he will only have such knowledge following
disclosure. He then goes on to set out his case as to who prosecuted him in
the alternative. He alleges either that the CPS was unable to exercise any
independent judgment or alternatively that the CPS maliciously prosecuted him.
Throughout the Particulars of Claim, there is a failure to clearly set out the
case against each defendant. The defendants are frequently grouped together or
referred to simply as “the prosecution”.
91.
Again, the claimant did not seek pre-action disclosure. Had he done so,
he would have obtained the note of Andrew Penhale dated 11 September 2010, which
has been disclosed within this application. Mr Penhale was the Unit head of
the CPS Organised Crime Division (North). He advised that the claimant should
be charged. The Defence of the DPP sets out that the CPS had been considering
the drugs conspiracy case in respect of the claimant and others for some time
prior to his arrest. The claimant’s pleaded case would need to identify, with
greater particularity, how he puts his case that each of the first and second
defendants were responsible for his prosecution and how they precluded Mr
Penhale or the CPS from exercising an independent judgment. The claimant has
chosen not to address this issue pre-action and instead to put forward vague
alternative cases. He suggests that the appointment of Special Counsel will,
in some unidentified way, allow the claim to be properly formulated.
92.
The claimant seeks to place heavy reliance upon what was said in the
Court of Appeal Criminal Division in R v Hartwell. However, the
contentions he makes in his witness statement dated 11 May 2018 appear to
ignore much of the judgment of Treacy LJ.
93.
Having read that judgment carefully in full, it is clear that the
argument was advanced before the Court of Appeal that evidence in the case
against Hartwell had been manipulated for the purpose of implicating Mr Coghlan
and that this was rejected by the court. It is also apparent that there had
been a series of hearings in the Court of Appeal as part of a lengthy process
including the instruction of special counsel and involving issues of public
interest immunity and disclosure. The Crown conceded that it could no longer
assert that the events of 3 November 2009 were part of the relevant
conspiracy. However, after what Treacy LJ described as “a lengthy and
painstaking review and inquiry into extremely substantial materials generated
by investigations into the conspiracy”, the court rejected the assertions of
prosecutorial misconduct or bad faith. At paragraph 42, the Court of Appeal
expressly rejected the assertion that the events of 3 November 2009 were only
included to provide a link between Dutton and Coghlan.
94.
In relation to the Mel/El call, the Court of Appeal found that there had
been an inadvertent error on the part of prosecuting counsel rather than any
bad faith and noted that the defence had the necessary data available to show
the error.
95.
Mr Coghlan suggests (at paragraph 84 of his statement of 11 May 2018)
that Hartwell pleaded guilty “unwittingly and equivocally to a global
conspiracy”. Again, this is contrary to the findings of the Court of Appeal
that Hartwell’s plea was tendered in an entirely unqualified way and that there
was evidence of the conspiracy to which he pleaded guilty.
96.
In the final paragraph of the judgment, Treacy LJ reiterated that
“this court has rejected the assertions of bad faith and/or
improper prosecutorial manipulation in the conduct of this case.”
97.
The claimant having conceded that the claim as presently pleaded does
not disclose reasonable grounds for proceeding against any defendant, the issue
for me is whether I should allow the opportunity for him to amend his Particulars
of Claim so to proceed against all or any of the defendants. That necessarily
involves considering whether there is any real prospect of the claimant
succeeding on his claim once it is amended. Even if that is the case, I must
still consider whether I should, in the exercise of my discretion, give the
claimant permission to amend his Particulars of Claim rather than striking the
claim out.
98.
I do not consider that there is any real prospect of the claimant
establishing that he was prosecuted by the first and/or second defendants. As
the third defendant’s defence makes clear, the decision to prosecute was taken
by the CPS. That accords with the procedure laid down by section 37B(2) of the
Police and Criminal Evidence Act 1984 and is evidenced by the note of Andrew
Penhale of 11 September 2010. The CPS lawyers had been advising for some time
before the claimant was charged. Advice was sought from experienced counsel. Although
the Court of Appeal decision in Rees is a reminder that a police officer
may still be a prosecutor where the CPS and counsel are involved, it also makes
it clear that cases are fact specific. On the facts of this case, it cannot
properly be maintained that it was virtually impossible for the CPS to exercise
any independent discretion or judgment.
99.
The claimant admitted in the Particulars of Claim that he could not
advance a positive case such as would justify a finding, as a matter of law,
that he was prosecuted by the first and/or second defendants. He suggested
that he required disclosure to enable him to know when and by whom the decision
to charge him was made. Having had disclosure of the Penhale note, he has made
no attempt to provide draft amended Particulars of Claim. The reality would
appear to be that he is unable to advance his case that he was prosecuted by
the first and/or second defendant, not through want of disclosure but because
that contention is not supportable applying the correct legal principles to the
facts of this case.
100.
In those circumstances, there is no proper basis for allowing the
claimant the opportunity to amend his Particulars of Claim. Since they are
defective in relation to the first essential limb of the tort, they do not
disclose reasonable grounds for bringing the claim against the first two
defendants and should be struck out.
101.
In relation to the third defendant, the Particulars of Claim do not
properly particularise any allegations of malice or bad faith. No employee or
agent of the CPS is identified as having acted maliciously. The CPS sought the
advice of independent counsel. The re-transcription of the probe evidence is
not alleged to have been done by the CPS. After a painstaking review, the
Court of Appeal rejected the allegations which the claimant now seeks to
maintain that the evidence in relation to Hartwell had been manipulated
through bad faith on the part of the prosecution to implicate the claimant.
102.
There is no reason to believe that allowing the claimant to amend his
Particulars of Claim would allow him to put forward any reasonable grounds for
maintaining a claim of malice against the third defendant.
103.
I have concluded that the claim is defective against all three
defendants, in that it fails to address all the essential elements of the
tort. I do not believe there is any real prospect that amendment of the
Particulars of Claim would allow the claimant to put forward a case that
discloses any reasonable grounds for bringing a claim against any defendant.
It follows that I strike the claim out in its entirety pursuant to CPR r.3.4(2)(a).
104.
Had I concluded that the claimant may have been able to put his case in
order by amendment of the Particulars of Claim, I would have had to consider
whether I should exercise my discretion to permit him the opportunity to do
so. In addition to taking account of the merits of the case, I would have had
to take into account a number of relevant factors:
(i)
The claimant chose to issue his claim at the very end of the limitation
period and without complying with the Practice Direction for pre-action conduct.
(ii)
He has had a long period in which to put his claim in order.
(iii)
The defendants served their Defences in February and made their strike
out applications then. Despite this, the claimant has still not provided draft
Amended Particulars of Claim.
(iv)
The claimant has not discharged his liability to the first and second
defendants under the costs order made in the earlier claim arising out of the
death of Mr Akinyemi.
Those factors
would have had to be balanced, weighing the merits of the claim and the
principle identified in Kim v Park that generally a claimant will be
given an opportunity to put right defects in his statement of case, provided
that there is reason to believe that he will be in a position to do so. Even
had I thought that might be the case, it certainly would not have been a
foregone conclusion that I would have permitted amendment at this stage.
105.
Had I decided not to strike out under r.3.4(2)(a), I would have gone on
to consider the defendants’ alternative applications for summary judgment under
r.24.2.
106.
I have concluded that the claimant has no real prospect of succeeding on
his claim against any of the defendants. In addition to the factors relied
upon in my decision to strike out the claim under r.3.4(2)(a), it seems to me
that the claimant has no real prospect of proving lack of reasonable and
probable cause.
107.
At paragraph 32, I have identified the basis upon which HHJ Brown refused
the claimant’s application to dismiss and concluded that there was a case to
answer. I acknowledge the claimant’s argument that on dates either side of HHJ
Brown’s ruling it was considered that there was insufficient evidence against
him to provide a realistic prospect of conviction (as evidenced by the entry in
Officer Hull’s notebook; the basis on which his prosecution was discontinued
and what was said in the Court of Appeal). I also recognise his argument that
nothing in reality had changed and his suspicions as to what was revealed in
the closed material procedure. However, the evidence before me indicates that
the decision to prosecute Mr Coghlan was taken by Mr Penhale on the basis of a
proper review of the available evidence and following consultation with
independent Counsel. After a lengthy hearing involving review of the evidence,
HHJ Brown concluded that there was sufficient evidence for the prosecution to
proceed. In doing so, he discounted the probe evidence and was aware that the
Mel/EL call was disputed. Having considered what the Court of Appeal said in R
v Hartwell, I do not consider that the concession made there gives rise to
a real prospect of establishing a want of reasonable and probable cause when Mr
Coghlan was charged and throughout the prosecution.
108.
It follows that, had I not struck this claim out under r.3.4(2)(a), I
would have given summary judgment against the claimant under r.24.2 on the
basis that he had no real prospect of succeeding on the claim.
109.
Given my conclusions above, the question of substituting the National
Crime Agency as second defendant in place of the Director-General does not
arise. Had it remained a live issue, it would have fallen to be considered by
reference to CPR r.19.5, given that it was an application to substitute a party
after the end of the relevant limitation period. The court may substitute a
party only if that is necessary as defined in r.19.5(3), namely if the court is
satisfied:
“(a) the
new party is to be substituted for a party who was named in the claim form in
mistake for the new party;”
(b) the
claim cannot be properly be carried on by or against the original party unless
the new party is substituted or added as claimant or defendant; or
(c) …” [Not relevant]
110.
The issue of whether a mistake as to a party is of the type falling
within r.19.5(3)(a) is one on which there is a considerable body of case law
and has been described by the Court of Appeal in Adelson v Associated Newspapers Ltd [2008] 1 WLR 585 as a “difficult area of procedural law”. The authorities were
reviewed by Leggatt J in The Insight Group Ltd v Kingston Smith
[2012] EWHC 3644 (QB).
111.
I heard very limited argument on this point. It was not addressed
within the parties’ skeleton arguments and the relevant authorities were not
provided. Mr Johnson invited me to find that there was no jurisdiction to
allow the substitution having regard to CPR 19.5 and took me to the notes in
the White Book and the test laid down in The Sardinia Sulcis [1991] 1
Lloyd’s Rep 201. He pointed out that the mistake must be as to name rather
than identity, albeit the test is broader than mere correction of name. Mr
Johnson referred to paragraph 7 b. of the Particulars of Claim and submitted
that this was not a case where the claimant had got the right description but
the wrong name for the intended defendant but rather one where the claimant was
wrong in law in alleging that the named second defendant was vicariously
liable. Mr Stanage did not respond to these submissions. Neither party addressed
me as to r. 19.5(3)(b).
112.
Had this issue been determinative of whether I allowed the claim against
the NCA to proceed, I would have called for further submissions. However,
since I would have struck it out even had the NCA been correctly named, this
difficult procedural issue no longer arises. In those circumstances, I do not
consider it necessary to seek further submissions; nor do I think it would be
particularly useful for me to add to the body of case law by expressing a
conclusion when the point has not been fully argued before me.
113.
Again, since I am striking the claim out under r.3.4, I must go on to
consider whether it was totally without merit. As I have indicated above, this
must be considered separately and does not follow simply from a finding that
the Particulars of Claim disclose no reasonable grounds for bringing it and/or
that there is no reasonable prospect of succeeding on the claim. Applying the
same test, I reach a different conclusion in relation to this claim. I am
prepared to accept that there was a rational basis for the claim even though I
am confident that, even taking the case at its highest, it is wrong. To some
extent, this is a matter of ‘feel’, noting that claims should not lightly be
certified as being totally without merit. I can understand why the claimant
sought to bring this action, albeit I do not accept it had any real prospect of
success.
Consideration of a Civil Restraint Order
114.
Having decided that the ABH claim was totally without merit, I am also
required to consider whether it is appropriate to make a civil restraint
order. I bear in mind that I have also decided that the claimant’s application
of 11 May 2018 was totally without merit and that Mr Edward Pepperall QC
determined that the earlier claim was totally without merit. There was a
suggestion in that case that at least one previous claim or application had
been determined to be totally without merit, but no details were provided to
the deputy judge nor do I have any confirmation of this.
115.
Practice Direction 3C deals with civil restraint orders and paragraph
3.1 indicates that an extended civil restraint order may be made where “a party
has persistently issued claims or made applications which are totally without
merit”. On the basis of the information currently before me, I am not yet
persuaded that I should make such an order at this stage. I recognise that
there is a basis on which the defendants might urge me to do so and am prepared
to give them the opportunity to make representations if they seek such an
order. If that course is to be taken, they will need to identify all matters
relied upon and provide a draft order setting out the precise terms sought.
The claimant would, of course, be given an opportunity to respond.
116.
My provisional view, subject to further representations, is that the
circumstances (two claims and an application now being recorded as totally
without merit) are such that the court is coming close to making an extended
civil restraint order. However, I would be inclined to allow the dust to
settle from these claims in the hope that Mr Coghlan would then think carefully
about the wisdom of pursuing any further wholly unmeritorious claims or
applications without the need for an order restraining him from issuing any
further proceedings without permission. If, having considered this indication,
the defendants seek to persuade me otherwise, directions will be required for
them to provide further submissions and for the claimant to respond.
Disposal
117.
I dismiss the claimant’s application dated 11 May 2018 and will record
that it was totally without merit.
118.
I strike out both claims in their entirety pursuant to CPR r.3.4(2)(a).
119.
In relation to the ABH claim (claim number D90MA175), I will record that
it was totally without merit.
120.
If the defendants seek to persuade me that I should make a civil
restraint order, there will need to be directions for the provision of further
submissions.
121.
I invite Counsel to seek to agree an order that reflects my judgment.
If they are unable to do so, they should provide alternative drafts for my
consideration.
