Jonathan Rees, Glenn & Garry Vian - Awarded £414,000 for Met Frame Up

“Those with previous criminal histories are more likely to be targeted for malpractice by police officers” Justice Cheema-Grubb

In my judgment exemplary damages are required. This award is to highlight and condemn the egregious and shameful behaviour of a senior and experienced police officer, DCS Cook. He oversaw the investigation at the relevant time. He was warned about his behaviour on several occasions and misled superior officers. Axiomatically, honest belief in guilt cannot justify prosecuting a suspect on false evidence. Justice Cheema-Grubb

1. This is a quantum hearing to assess damages to be paid following findings for the claimants by the Court of Appeal on liability for malicious prosecution and misfeasance in public office. The judgment at Rees and Others v Commissioner of Police for the Metropolis [2018] EWCA Civ 1587 sets out the relevant facts and procedural history. I adopt these. Wholesale repetition in this judgment would be superfluous.

2. In summary, as long ago as April 2008 the claimants were charged with murder following the investigation of an alleged contract killing in a pub car park in south London in March 1987. The high-profile case against them reached the Central Criminal Court but in February 2010 Maddison J held that the evidence of a key prosecution witness Gary Eaton ("Eaton") would be excluded. The reason was that a high-ranking police officer, Detective Chief Superintendent David Cook ("DCS Cook"), had compromised the integrity of the evidence Eaton proposed to give by initiating or allowing extensive contact with the witness in contravention of express agreements and accepted procedures. During this period Eaton's evidence, initially innocuous, expanded appreciably to include presence at the scene of the killing shortly after its commission together with knowledge of the claimants in the vicinity. Despite the ruling, at first the Crown indicated that the trial was to proceed on other evidence, but in March 2011 the judge was told that the prosecution was to be discontinued. No evidence was offered, and each of the claimants obtained not guilty verdicts.

3.They issued claims for damages. After a preliminary trial on the issue of liability Mitting J dismissed the action at Rees and Others v Commissioner of Police for the Metropolis [2017] EWHC 273 (QB). His factual conclusions, themselves predicated on the findings and decision of Maddison J, were adopted but his decision was reversed on the law by the Court of Appeal. The central points in the appeal were whether the limited but decisive findings in favour of the defendant could be sustained. Firstly, had Mitting J been right to reject the claim on the basis that although it had been established that DCS Cook's actions regarding Eaton had led to the claimants being prosecuted, the defendant was not liable, vicariously, to compensate them for the tort of malicious prosecution because DCS Cook was not a prosecutor, had not been malicious, and there was reasonable and probable cause to prosecute. Secondly, in respect of misfeasance in public office although DCS Cook was a public officer exercising a public power and he had deliberately perverted the course of justice realising that it would probably cause injury to the claimants, the defendant was not liable to compensate them because they would have been prosecuted by the Crown Prosecution Service on other evidence.

4.The claimants' appeal succeeded. DCS Cook was the most senior police officer in the case and he presented the evidence to the Crown Prosecution Service for a decision on sufficiency of evidence for charge. He did so, knowing that he had suborned the evidence of Eaton and falsely presented him as an eye-witness to the murder scene. On analysis the remaining evidence was weak and circumstantial and it had been rejected previously as insufficient to provide a realistic prospect of conviction, so it was inconceivable that charges would have been brought without DCS Cook's deliberate manipulation. The independent prosecutor's decision was overborne or perverted by the police officer's actions: DCS Cook was a de facto prosecutor. The Court held that he had been malicious, within the meaning of the relevant authorities, because he could not have believed that the case tainted with the evidence of Eaton was fit to go to a jury and such dishonest pursuit of the case, whether or not DCS Cook himself believed the claimants to be guilty, amounted to deliberately perverting the course of justice: sufficient malice.

5. As to misfeasance in public office, Mitting J had relied on the initial continuation of the case against the claimants after Maddison J had excluded Eaton's evidence as the basis for concluding that DCS Cook's actions did not cause loss. There was no evidence before the judge to show whether, in fact, charges would have been brought without Eaton's contribution to the case. The Court of Appeal held, on a balance of probabilities, that a prosecution would not have been brought had it been known in April 2008 that Eaton's evidence would not have been admissible at trial because of the actions of the Senior Investigating Officer in the case who had perverted the interests of justice in order to obtain it. Accordingly, there had been loss to each claimant.

Discussion

46. I noted earlier in this judgment those with previous criminal histories are more likely to be targeted for malpractice by police officers in the first place so although I am compelled to make a reduction from the basic award and the aggravated damages for the previous convictions of the claimants I recognise this aspect in the award of exemplary damages.

47. As I have already made clear I do not accept that the failure to apologise should add to the punishment in this case. Although Fillery is not before this court the three men charged with murder on the evidence secured by DCS Cook's wrongdoing are. The court has not been informed as to the exemplary damages proportion of the settlement reached with Fillery and apart from acknowledging that during the course of oral argument Mr Johnson QC suggested a possible breakdown of the award including both aggravated and exemplary damages, whilst maintaining that he was not able to say how the award was actually made up, the compensation paid to Fillery does not inform my decision as to quantum.

48.I recognise that the defendant will be required to pay substantial damages and costs. The claimants have achieved a Court of Appeal judgment in their favour. I have considered the parties' submissions on Cairns v Modi [2012] EWCA Civ 1382. In some cases, the reasoned and extremely clear judgment of the Court would be enough to punish and publicly castigate the defendant for her ex-officer's conduct, but this is not such a case. In my judgment adequate punishment and public censure requires a separate award of exemplary damages to mark the court's denunciation of DCS Cook's unconstitutional behaviour as an agent of the state Washington v Commissioner of Police of the Metropolis [2003] Police Law Reports 35. As this part of the award has this function I bear in mind that three claimants are before the court. This ingredient of the total award is a windfall for the claimants, and it comes from public funds which will not be available to be expended for the public good. The award will be split equally between them so that there is no gratuitous punishment Riches v News Group Newspapers Ltd [1986] QB 256.

Determination

49.In setting individual components I bear in mind the total award I make in favour of each claimant and strive to avoid double-counting. My attention has been directed to many cases which are said by one party or another, to provide some assistance to me in my task in an unusual case. I refer to some of them but even those which provide guidance cannot be applied mechanistically given that the task I am engaged in is an assessment which, although broadly expressed, must be bespoke for this unusual case.

50.As to the distress element: a murder charge is of a different order to most criminal offences. The anxiety and stress of being prosecuted for a high profile murder and the risk of a conviction with the mandatory life sentence must have a far graver impact for the period that it hangs over a suspect than the sort of offending alleged in Thompson. I do not accept that an award which is at least three times the top end of the basic damages in that case for the prosecution itself, is justified. I propose a more modest uplift namely 50%.

51.
In the present circumstances a separate element of the award must recognise the period in custody on the murder charge. The first and second claimant spent 682 days in custody charged with murder, but it is conceded that they were initially lawfully detained. In due course they were transferred to category A detention with more onerous restrictions. The third claimant's position is less clear, but I am satisfied on the balance of probabilities that he some spent time as a serving Category A prisoner as a consequence of this murder charge. Nonetheless, the element of initial shock at being deprived of liberty based on a false charge is missing in the case of all three claimants. In addition, this was not the first period in custody for each claimant. In these circumstances the quantum of the claim is ambitious.

52.
I do also reduce the aggravated damages award because of the claimants' antecedent history but in a balanced way as I have explained, and the reduction would certainly have been far more significant had the claimants acquired convictions for serious offences of violence. I reject the argument that I should nonetheless ascribe such a propensity because the second and third claimants were overheard on a covert probe discussing the shortening of a gun. The broad approach that the cases indicate is recognition of convictions rather than allegations.

53. In my judgment exemplary damages are required. This award is to highlight and condemn the egregious and shameful behaviour of a senior and experienced police officer, DCS Cook. He oversaw the investigation at the relevant time. He was warned about his behaviour on several occasions and misled superior officers. Axiomatically, honest belief in guilt cannot justify prosecuting a suspect on false evidence. Although the publicly available decision of the Court of Appeal provides some succour it does not replace the impact of a suitable financial award both to the claimants themselves and on the public perception that there is no place for any form of 'noble-cause' justification for corrupt practices in those trusted to uphold the law.

54. The first and second claimants are each awarded £155,000. This recognises (as set out above) the tapering effect of a longer period in custody, and incorporates an uplift for the period spent in Category A and on restrictive bail conditions. The award for distress and aggravated damages incorporates a 10% reduction for previous criminality. The previous convictions of these claimants are already allowed for in the loss of liberty figure. The constituent parts of the award for each claimant are:

a. Basic award
i. Distress etc from the charge £27,000
ii. Loss of liberty £60,000
b. Aggravated damages £18,000
c. Exemplary damages £50,000 (one third of exemplary damages of £150,000)

55. The third claimant is awarded £104,000. This recognises the shorter period of relevant incarceration, and the uplift for being held in Category A for a period and being subject to restrictive bail conditions. The award for distress and aggravated damages incorporate a 10% previous criminality reduction. The previous convictions are already allowed for in the loss of liberty figure. The break down is:

a. Basic award
i. Distress etc from the charge £27,000
ii. Loss of liberty £9,000
b. Aggravated damages £18,000
c. Exemplary damages £50,000 (one third of the total award of £150,000)

56. Interest from the date of this judgment. Costs and interest should be agreed between the parties. It is to be hoped that no further public money need be expended in resolving disputes by a hearing.

Justice Cheema-Grubb, High Court of Justice, 31/07/2019, https://is.gd/6Zjbw1