Taylor_SFOHL1998
References: Times 04-Nov-1998, [1998] UKHL 39, [1999] 2 AC 177, [1998] 4 All ER 801, [1998] 3 WLR 1040
Links: House of Lords, Bailii
Coram: Lord Lloyd of Berwick, Lord Goff of Chieveley, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton
Ratio: The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later trial of others. The plaintiff sought damages in defamation.
Held: The documents which had been prepared for a criminal investigation, and which were disclosed as part of prosecution case, but not relied on in that prosecution, may only be used by defence for the purposes of that trial. They cannot be used to form the basis of an action for defamation. The documents were disclosed under an obligation imposed on the prosecution. The absolute immunity rule ‘is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say.’ The immunity extended also to statements made out of court which could fairly be said to be part of the process of investigating crime. The court referred in this connection to investigators and the prosecuting officials with whom they are required to communicate.
Lord Hope (with whom Lord Hutton agreed) observed: ‘I do not think that it is possible to overstate the importance, in the public interest, of ensuring that material which is disclosed in criminal proceedings is not used for collateral purposes’.
Lord Hoffmann said: ‘I find it impossible to identify any rational principle which would confine the immunity for out of court statements to persons who are subsequently called as witnesses. The policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. If this object is to be achieved, the person in question must know at the time he speaks whether or not the immunity will attach. If it depends upon the contingencies of whether he will be called as a witness, the value of the immunity is destroyed. At the time of the investigation it is often unclear whether any crime has been committed at all. Persons assisting the police with their inquiries may not be able to give any admissible evidence; for example, their information may be hearsay, but none the less valuable for the purposes of the investigation. But the proper administration of justice requires that such people should have the same inducement to speak freely as those whose information subsequently forms the basis of evidence at a trial.
When one turns to the position of investigators, it seems to me that the same degree of necessity applies. It would be an incoherent rule which gave a potential witness immunity in respect of the statements which he made to an investigator but offered no similar immunity to the investigator if he passed that information to a colleague engaged in the investigation or put it to another potential witness. In my view it is necessary for the administration of justice that investigators should be able to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued if such statements are disclosed in the course of the proceedings.’
This case cites:
- Appeal from – Taylor Monarch Assurance Plc v Director of Serious Fraud Office, McKenzie, Law Society Rogerson CA (Gazette 24-Sep-97, Times 27-Aug-97, Bailii, [1997] EWCA Civ 2163)
Qualified privilege attached to defamatory documents which had been prepared as part of a criminal investigation. For the court to allow an action would be approve a form of parasitic attack on the trial. . . - Cited – Mahon v Rahn QBD (Unreported, 19 June 1996)
Directors of a London firm of stockbrokers brought libel proceedings against two Swiss bankers.
Held: The absolute immunity which is given to both witnesses and potential witnesses extends to all those taking part in a criminal investigation . . - Cited – Mahon, Kent v Dr Rahn, Biedermann, Haab-Biedermann, Rahn, and Bodmer (a Partnership) (No 2) CA (Times 14-Jun-00, Gazette 29-Jun-00, Bailii, [2000] EWCA Civ 185, [2000] 1 WLR 2150, [2000] EMLR 873, [2000] Po LR 210, [2000] 2 All ER (Comm) 1, [2000] 4 All ER 41)
The defendant’s lawyers wrote to a financial services regulatory body investigating the possible fraudulent conduct of the plaintiff’s stockbroking firm. The letter was passed to the Serious Fraud Office who later brought criminal proceedings . . - Cited – Munster v Lamb CA ((1883) 11 QBD 588)
Judges and witness, including police officers are given immunity from suit in defamation in court proceedings.
Fry LJ said: ‘Why should a witness be able to avail himself of his position in the box and to make without fear of civil consequences . . - Cited – Watson v M’Ewan HL ([1905] AC 480, [1905] UKHL 1, Bailii, (1905) 13 SLT 340, (1905) 7 F (HL) 109)
A claim was brought against a medical witness in respect of statements made in preparation of a witness statement and similar statements subsequently made in court. The appellant was a doctor of medicine who had been retained by the respondent in . . - Cited – Home Office v Hariette Harman HL ([1983] 1 AC 280, [1982] 2 WLR 338, [1982] 1 All ER 532, (1982) 126 SJ 136)
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . . - Cited – Evans v London Hospital Medical College and Others ([1981] 1 WLR 184, [1981] 1 All ER 715)
The defendants employed by the first defendant carried out a post mortem on the plaintiff’s infant son. They found concentrations of morphine and told the police. The plaintiff was charged with the murder of her son. After further investigation no . . - Cited – Regina v Ward (Judith) CACD (Gazette 15-Jul-92, [1993] 1 WLR 619, (1993) 96 Cr App Rep 1)
The defendant had been wrongly convicted of IRA bombings. She said that the prosecution had failed to disclose evidence.
Held: The prosecution’s forensic scientists are under a common law duty to disclose to the defence anything they may . . - Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL (Independent 30-Jun-95, Times 30-Jun-95, [1995] 2 AC 633, Bailii, [1995] UKHL 9, [1995] 2 FLR 276, [1995] 3 All ER 353, [1995] 3 WLR 152, [1995] 3 FCR 337, (1995) 7 Admin LR 705, 94 LGR 313, [1995] Fam Law 537, [1995] 3 FCR 337)
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case, only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give . . - Cited – Regina v Keane CACD (Independent 16-Mar-94, Times 15-Mar-94, [1994] 1 WLR 746, [1994] 2 All ER 478, (1994) 99 Cr App R 1)
Public Interest Immunity Certificates for the protection of informants must be used only carefully. The Crown must specify the purpose of the public interest immunity certificate. The principles on disclosure in Ward are not limited to scientific . . - Cited – Mahon and Another v Rahn and Others (1) CA (Times 12-Jun-97, [1998] QB 424)
Two company directors sued Swiss bankers who had responded to enquiries from the police in London. The charges which followed had been dismissed, and the directors sued in defamation, seeking to rely upon the materials sent to the police. - Cited – Regina v Brown (Winston) HL (Gazette 03-Sep-97, House of Lords, Bailii, [1997] UKHL 33, [1998] AC 367, [1997] 3 All ER 769, [1997] 3 WLR 447, [1998] 1 Cr App Rep 66)
The victim had been stabbed outside a nightclub. Two witnesses identified the defendant. The defendants complained that evidence had not been disclosed to them.
Held: There is no duty at common law on the prosecution to warn the defence of . . - Cited – Prudential Assurance Co Ltd v Fountain Page Ltd ([1991] 1 WLR 756)
A party and his legal representatives receiving documents under a process of discovery is under an implied undertaking to use those documents for the purposes of those proceedings only. It is an obligation imposed by operation of law by virtue of . . - Cited – Ex parte Coventry Newspapers Ltd CA ([1993] QB 278, [1993] 1 All ER 86, [1992] 3 WLR 916)
Documents had been disclosed by the Police Complaints Authority under court order for an appeal against conviction. They related to an investigation of the conduct of police officers who had given evidence against the appellant. The newspaper, now . . - Cited – Marrinan v Vibart CA ([1963] 1 QB 528, [1962] 3 All ER 380)
Two police officers gave evidence in a criminal prosecution of others, that the plaintiff, a barrister, had behaved improperly by obstructing a police officer in the execution of his duty and subsequently gave similar evidence at an inquiry before . . - Cited – Roy v Prior HL ([1971] AC 470, [1970] 2 All ER 729)
The court considered an alleged tort of maliciously procuring an arrest. The plaintiff had been arrested under a bench warrant issued as a result of evidence given by the defendant. He sued the defendant for damages for malicious arrest.
Held: . . - Cited – Bennett v Commissioner of Police of the Metropolis Admn (Times 24-Oct-97, (1997) 10 Admin LR 245)
Police and prosecuting authority have no inherent immunity from suit for tort of misfeasance in public office if the breach is properly made out. Immunity extends to statements made or agreed to be made out of court ‘if these were clearly and . . - Cited – Silcott v Commissioner of Police of the Metropolis CA (Times 09-Jul-96, [1996] 8 Admin LR 633, Bailii, [1996] EWCA Civ 1311)
The claimant had been convicted of the murder of PC Blakelock. The only substantial evidence was in the form of the notes of interview he said were fabricated by senior officers. His eventual appeal on this basis was not resisted. He now appealed . . - Cited – Attorney-General’s Guidelines Practice Note (Criminal Evidence: Unused Material) ([1982] 1 All ER 734)
. . - Cited – Regina v Jeffries CACD ([1968] CLY 661)
. . - Cited – Regina v Ward (Judith) CACD (Gazette 15-Jul-92, [1993] 1 WLR 619, (1993) 96 Cr App Rep 1)
The defendant had been wrongly convicted of IRA bombings. She said that the prosecution had failed to disclose evidence.
Held: The prosecution’s forensic scientists are under a common law duty to disclose to the defence anything they may . . - Cited – Director of Public Prosecutions v Shannon ([1974] CLY 546)
. . - Cited – Regina v Maguire CACD ([1992] 2 All ER 433, [1992] QB 936, (1992) 94 Cr App Rep 133 , [2006] EWCA Crim 1239)
The defendant, convicted of murder, had died. It later came to light that materials with the prosecution forensic team had not been disclosed by the prosecution.
Held: The Home Secretary could make a reference to the Appeal court despite the . . - Cited – Regina v Davis; Regina v Rowe; Regina v Johnson CA (Gazette 10-Mar-93, [1993] 1 WLR 613, [1993] 97 Cr App R 110)
Guidance was given on the procedures to be followed for applications for non-disclosure for public interest immunity. The court identified three types of case. In the first, and most frequent case the prosecution must notify the defence of the . . - Cited – Regina v Brown (Winston) CACD (Independent 22-Jun-94, Gazette 31-Aug-94, Times 20-Jun-94, [1994] 1 WLR 1599)
The Crown Prosecution Service was under no obligation to disclose evidence which might be damaging to a Defendant’s witness’ credibility. The Attorney General’s disclosure guidelines do not have the force of law and need updating. . . - Cited – D v National Society for the Prevention of Cruelty to Children HL ([1978] AC 171, [1977] 2 WLR 201, [1977] 1 All ER 589, Bailii, [1977] UKHL 1)
Immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the NSPCC similar to that which the law allowed to police informers.
Lord Simon of . .
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This case is cited by:
- Cited – Darker v Chief Constable of The West Midlands Police HL (Gazette 17-Aug-00, Times 01-Aug-00, House of Lords, Bailii, [2000] UKHL 44, [2001] AC 435, [2000] 3 WLR 747)
The plaintiffs had been indicted on counts alleging conspiracy to import drugs and conspiracy to forge traveller’s cheques. During the criminal trial it emerged that there had been such inadequate disclosure by the police that the proceedings were . . - Cited – Preston Borough Council v McGrath CA (Bailii, [2000] EWCA Civ 151)
The defendant had been investigated for fraud against the claimant. He had disclosed documents to the police, but now complained at their use in the civil proceedings against him.
Held: The document had not been given to the police under . . - Appealed to – Taylor Monarch Assurance Plc v Director of Serious Fraud Office, McKenzie, Law Society Rogerson CA (Gazette 24-Sep-97, Times 27-Aug-97, Bailii, [1997] EWCA Civ 2163)
Qualified privilege attached to defamatory documents which had been prepared as part of a criminal investigation. For the court to allow an action would be approve a form of parasitic attack on the trial. . . - Cited – Regina v Legal Aid Board ex parte Kaim Todner (a Firm of Solicitors) CA (Times 15-Jun-98, Gazette 01-Jul-98, Bailii, [1998] EWCA Civ 958, [1999] QB 966, [1998] 3 All ER 541, [1998] 3 WLR 925)
A firm of solicitors sought an order for anonymity in their proceedings against the LAB, saying that being named would damage their interests irrespective of the outcome.
Held: The legal professions have no special part in the law as a party . . - Cited – Bowman v Fels (Bar Council and Others intervening) CA ([2005] 4 All ER 609, Bailii, [2005] EWCA Civ 226, Times 14-Mar-05, [2006] 1 WLR 3083)
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . . - Cited – A, Re Application for Judicial Review QBNI (Bailii, [2001] NIQB 21)
The applicant, who feared for his life if identified, sought the release to him of materials discovered by the police in searching premises associated with a loyalist paramiliitary group. He thought that they might include information sourced form . . - Cited – General Medical Council v Professor Sir Roy Meadow, Attorney General CA (Bailii, [2006] EWCA Civ 1390, Times 31-Oct-06, [2007] 2 WLR 286, (2006) 92 BMLR 51, [2007] 1 All ER 1, [2006] 3 FCR 447, [2007] LS Law Medical 1, [2007] Fam Law 214, [2007] ICR 701, [2007] QB 462, 92 BMLR 51, [2007] 1 FLR 1398, [2006] 44 EG 196)
The GMC appealed against the dismissal of its proceedings for professional misconduct against the respondent doctor, whose expert evidence to a criminal court was the subject of complaint. The doctor said that the evidence given by him was . . - Cited – H, Regina v (Interlocutory application: Disclosure) HL (Times 02-Mar-07, Bailii, [2007] UKHL 7, [2007] 3 All ER 269, [2007] Crim LR 731, [2007] 2 Cr App Rep 6, [2007] 2 AC 270)
The trial judge had refused an order requested at a preparatory hearing by the defence for the disclosure of documents held by the prosecutor. The House was now asked whether a right of appeal existed against such a refusal.
Held: The practice . . - Cited – Buckley v Dalziel QBD (Bailii, [2007] EWHC 1025 (QB), Times 07-Jun-07, [2007] 1 WLR 2933, [2007] EMLR 624, [2007] EMLR 23)
There was a heated dispute between neighbours, culminating in some generous or perhaps over-generous pruning by the claimant of the defendant’s trees and shrubs on the boundaries. The defendants reported the matter to the police. Both Mr and Mrs . . - Cited – Westcott v Westcott QBD (Bailii, [2007] EWHC 2501 (QB))
The claimant said that his daughter in law had defamed him. She answered that the publication was protected by absolute privilege. She had complained to the police that he had hit her and her infant son.
Held: ‘the process of taking a witness . . - Cited – Westcott v Westcott CA (Bailii, [2008] EWCA Civ 818, Times 27-Aug-08, [2009] QB 407, [2009] 2 WLR 838, [2009] 1 All ER 727, [2009] EMLR 2)
The defendant was the claimant’s daughter in law. In the course of a bitter divorce she made allegations to the police which were investigated but did not lead to a prosecution. The claimant appealed dismissal of his claim for defamation on the . . - Cited – Flood v Times Newspapers Ltd and others QBD ([2009] EMLR 18, Bailii, [2009] EWHC 411 (QB))
The claimant police officer complained of an alleged defamation in an article published by the defendant. The defendant wished to obtain information from the IPCC to show that they were investigating the matter as a credible issue. The court . . - Cited – White v Southampton University Hospitals NHS Trust and Another QBD (Bailii, [2011] EWHC 825 (QB))
The claimant doctor sued in defamation for letters written by the defendants to the Fitness to Practice Directorate. She now sought to appeal against a finding that she could not rely upon one letter which had come to her attention through . . - Cited – Nunn v Suffolk Constabulary and Another Admn (Bailii, [2012] EWHC 1186 (Admin))
The claimant had been convicted of murder and his appeal had failed. He now sought disclosure of the forensic material held by the police to his own legal team.
Held: Permission to apply for review was granted, but the claim failed. ‘It is . . - Cited – Smart v The Forensic Science Service Ltd CA (Bailii, [2013] EWCA Civ 783)
On a search of his house, the police found a bullet cartridge on the claimant’s property. It was sent for testing but due to a mistake it was reported as a live cartridge. The prosecution was only dropped after some months when the mistake was . . - Cited – Tchenguiz v Director of The Serious Fraud Office and Others CA (Bailii, [2014] EWCA Civ 1409)
The appellant challenged an order of the Commercial Court refusing permission for documents disclosed in English litigation to be used in litigation proceedings in Guernsey. The principal issue is whether the judge correctly weighed up the . . - Cited – Singh v Moorlands Primary School and Another CA (Bailii, [2013] EWCA Civ 909, [2013] IRLR 820, [2013] WLR(D) 306, [2013] 1 WLR 3052, [2013] ICR 1158, [2013] CP Rep 46)
The claimant was a non-wite head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .
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Leading Case
Last Update: 07 August 2018
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