The publication of the long-awaited inquiry report into the 1987 murder of Daniel Morgan and the media storm that accompanied it, laid bare the imbroglio of the Metropolitan Police’s handling of the investigation as well as its four failed attempts to prosecute a number of suspects for their alleged involvement in the murder.
Nicholas Bowen QC and David Lemer have represented Jonathan Rees and Glenn Vian in their ultimately successful claims for damages arising from their malicious prosecution and the misfeasance in public office perpetrated by Detective Chief Superintendent David Cook. This article will consider six key lessons to be derived from the two Court of Appeal judgments (2018 and 2021) arising from this litigation.
On 21st April 2008 Jonathan Rees, Glenn Vian, Garry Vian and Jimmy Cook were charged with the murder of Daniel Morgan. The men remained in custody, thereafter, until 3rd March 2010.
The evidence of a Gary Eaton formed a central plank of the case against the defendants. Mr Eaton, a man with a known criminal past, who suffered from a personality disorder, claimed that he had been present at the murder scene shortly after the fatal axe blows had been administered to Daniel Morgan. As the Court of Appeal later recorded:
He said that, on that evening, he had followed Garry V (whom he called "Scott") (one of two brothers) into the car park from the pub lavatory and saw Cook in the driver's seat of a car with Glenn V (who he named as the other brother) in the front passenger seat. He said he saw Morgan's body on the ground close by with an axe embedded in his head. He did not directly implicate Rees, save to say that (as Rees himself had admitted) he had been in the pub on the night in question
In the course of a lengthy pre-trial process, Maddison J, on 15th February 2010, decided to exclude the evidence of Gary Eaton since, as the Court of Appeal noted:
'The Senior Investigating Officer ("SIO"), Detective Chief Superintendent David Cook ("DCS Cook") was found to have compromised the de-briefing of Eaton by making and receiving an extensive number of unauthorised direct contacts with Eaton in the period leading up to Eaton's making of his statements, in contravention of express procedures for keeping a "sterile corridor" between the debriefing officers and the investigation team. In the course of the debriefing process, Eaton moved from being unwilling to name directly any of the participants in the murder to naming the three appellants and giving his graphic (as it turned out obviously inaccurate) description of the murder scene'
In November 2010 the Crown discontinued proceedings against Jimmy Cook, and on 11th March 2011 proceedings were discontinued against the remaining defendants.
Rees and the Vian brothers subsequently brought a claim against the Metropolitan Police for malicious prosecution and misfeasance in public office. Whilst their claims were dismissed at first instance by Mitting J on 22nd February 2017, that decision was overturned by the Court of Appeal on 5th July 2018. On 31st July 2019 Cheema Grubb J handed down a judgment awarding Rees and Glenn Vian damages in the sum of £155,000 each. That judgement was appealed by both Rees and the Metropolitan Police, leading to a further judgment of the Court of Appeal, on 20th January 2021 which upheld Cheema Grubb’s approach.
Lesson 1 – There is no place for noble cause corruption
Mitting J agreed with the approach of trial judge (Maddison J) to the evidence and accepted that DCS Cook had intended to pervert the course of justice in his actions in relation to the evidence of Gary Eaton. However, he reached the remarkable conclusion that since Cook believed in the guilt of the suspects, it was not possible for the claimants to establish either a lack of reasonable and probable cause for the claimants’ prosecution, or malice.
Before Mitting J and the Court of Appeal, Nicholas Bowen QC, Counsel for Jonathan Rees and Glenn Vian, argued that this amounted to ‘a judicial sanction of corruption’.
The Court of Appeal held that there was neither subjective nor objective reasonable and probable cause to lay murder charges against the Claimants. As Lord Justice McCombe explained:
‘In my judgment, it is entirely clear that the case presented by DCS Cook to the CPS [Crown Prosecution Service] was not a “proper” one, nor was it “fit to be tried”. It included (and relied strongly upon) evidence, on the judge’s finding, procured by DCS Cook’s own acts which were intended by him to pervert the course of justice. There is no evidence that he gave any thought to the question whether there was a fit or proper case to be laid before the court absent that tainted evidence. In such circumstances, I cannot see that DCS Cook could be found to have honestly believed that there was a “proper” case to lay before a court.’
The Court of Appeal profoundly disagreed with Mr Justice Mitting’s reasoning and held that former DCS David Cook was ‘malicious’ in what he did. It was the only point on which all three judges felt it necessary to give judgment individually.
Lord Justice McCombe stated:
‘Can it be the law, as assumed by the judge, that because a prosecutor believes a person is guilty of an offence, he prosecutes that person without malice (in the sense of dishonesty), even if the case which he presents to prove guilt is heavily reliant on the evidence of a witness which he has procured by subornation amounting to a criminal intention to pervert justice? In my judgment, that is not the law. Before probing the matter more, I would hold that bringing a prosecution in that manner is not “bringing a criminal to justice” at all.'
Lady Justice King concluded that:
'To say that DCS Cook, a prosecutor guilty of perverting the course of justice by creating false evidence against the appellants, was, on account of his belief in their guilt, not acting maliciously, is rather like saying that Robin Hood was not guilty of theft. One understands the motivation in each case, but any seeming endorsement of such dishonest behaviour, particularly within the police force, leads as McCombe LJ puts it, to a (serious and unacceptable) "negation of the rule of law'
Finally, on the same point Lord Justice Coulson observed:
‘It would be contrary to basic principle to find, as the judge did, that a senior policeman can pervert the course of justice to create false evidence against the appellants, but not be guilty of malice simply because he personally believed them to be guilty of Daniel Morgan’s murder. That would amount to an endorsement of DCS Cook’s criminal conduct and his view that the ends justified the means, which I emphatically reject.’
Lesson 2 - You can have more than one prosecutor, but the prosecutor must have reached the decision to prosecute through the exercise of a truly independent judgment
The Court of Appeal accepted, in principle, the possibility of there being more than one prosecutor in an individual case. Further, in rejecting an argument that the relevant prosecutor was the CPS, the Court relied upon DCS Cook’s actions in knowingly presenting the fruits of his criminal conduct, namely Eaton as a purported eyewitness to the murder scene, to influence the charging decision. Those actions denied the CPS the opportunity to exercise a truly independent charging decision, meaning that DCS Cook/ the Metropolitan Police was the relevant prosecutor in the claim.
At paragraph 57 of the judgment McCombe LJ concluded:
'In assessing whether the CPS and Treasury Counsel were able to exercise a truly independent judgment, it is necessary to stand back from the printed word and, postulating the reverse of the facts as they were, to ask what effect it would have had on their judgment if they had been told that the SIO had deliberately presented to them a case in which the evidence of the only supposed eyewitness had been improperly procured by that officer by acts intended by him to pervert the course of justice. The case otherwise was supported only by evidence, not to mince words, of extremely "dodgy" witnesses and some circumstantial material. In my judgment, on this hypothesis, it is inconceivable that, in such circumstances, the CPS would have advised that murder charges be brought, without DCS Cook having been removed from the process entirely and a fresh review of the material having been prepared from which his malign influence had been removed.'
Lesson 3 - The need for the CPS to consider, at the highest level, whether privilege should be waived to allow potential Claimants to understand the rationale behind a decision to charge.
A problem often faced by Claimants seeking to pursue claims of malicious prosecution is in establishing whether, absent the impugned actions of certain individuals (in the present case the actions of DCS Cook), there would still be a reasonable and probable cause for the prosecution. The answer to that question will often be found in the advice and charging documents relating to the original decision to charge. Those documents are, however, said to be protected by privilege which, in the Rees case, was not waived by the CPS, or indeed the Metropolitan Police. Coulson LJ lamented that failure as giving rise to a significant waste of public resources. At paragraph 117 he concluded:
'It seems to me that, in circumstances where the funding for both the Court Service and the CPS comes out of the same MoJ budget, and at a time when budgetary constraints within the MoJ are all-pervasive, it is an obvious waste of valuable resources for courts to spend time trying to answer complex hypothetical questions without sight of the documents that are likely to contain the answers. This issue needs to be considered at the highest level of the CPS: I am not satisfied that its consequences have been fully grasped by those responsible for defending this (and other similar) claims.'
Whilst it might be thought that that judicial exhortation will have led to a more cooperative stance being adopted in such cases, the authors have not detected any recent change in the attitude of either the police or the CPS.
Lesson 4 - The absolute maximum for exemplary damages set out by the Court of Appeal in Thompson is not to be read in such a limited way and is, in any event, not directed at a case involving more than one Claimant.
Cheema Grubb J had awarded the Claimants £150,000 in exemplary damages, to be shared between them, to “mark the court’s denunciation of DCS Cook’s...egregious and shameful behaviour.” The Metropolitan police had sought to argue, on appeal, that such an award fell foul of the ‘absolute maximum’ level for exemplary damages referred to in Thompson and Hsu v Commissioner of Police for the Metropolis  QB 498 as being £50,000 (adjusted for inflation to £91,500). The Court of Appeal upheld her approach, observing, at paragraph 54, that the observations in Thompson were directed at the paradigm of a single claimant.
'It was not directed at cases where there were several claimants: and plainly the greater number of persons wrongly detained by reason of malicious prosecution or misfeasance in public office in a particular case must at least be capable of bearing on the quantum of any award of exemplary damages.... Overall, I see no reason for a court being required in a case such as this to confine its total award of exemplary damages to a total figure of £50,000 (adjusted for inflation); and every reason for it not being so confined.'
Lesson 5- Loss of liberty in immigration detention cases should not be placed in a separate silo from awards in non-immigration cases
In light of the lack of malicious prosecution comparator cases for the loss of liberty suffered by the Claimants, reliance had been placed on awards made in unlawful immigration detention cases. Cheema Grubb J had treated those comparator cases with caution given the context in which such awards were made, an approach which was challenged by Mr Rees on appeal. Upholding the approach of the Judge, the Court of Appeal concluded, at paragraph 29 that:
'As the judge noted, in such cases the awards tend not to be broken down into constituent parts of distress etc. on the one hand and loss of liberty on the other hand. Further, the context can be very different. Such cases also may involve, amongst other things, the detainee being detained on an open-ended basis, in circumstances of having the particular stress of potentially facing forced return to a country where he fears persecution. These, as it seems to me, are valid considerations in approaching, in a context such as the present, cases of that kind advanced as proposed comparators. I would be inclined to accept Mr Lemer's submission that there are no "separate silos" (in his phrase) between awards of damages in unlawful immigration detention cases and the present kind of case. But it does not follow at all from that that such cases are to be treated without any differentiation; and the judge's note of caution in this respect was, in my opinion, justified'
Lesson 6 - Pre-judgment interest should not be awarded in cases involving damages for loss of liberty and malicious prosecution
On appeal Mr Rees sought to argue that Cheema Grubb J had erred in failing to either award him pre-judgment interest on his damages awards for malicious prosecution, or, in the alternative, to uplift the damages award to take account of the time it had taken for him to obtain vindication. The Court concluded (paragraphs 45 and 47 judgment) that pre-judgment interest should not be awarded in cases involving damages for loss of liberty and malicious prosecution. As regards the alternative argument, the Court did accept the Appellant’s contention that judges should award damages to take account of both intervening inflation and also the fact that the award of damages is being calculated by assessing the situation up to the date of judgement (reflecting the time taken for a Claimant to be finally vindicated). Whilst concluded that that was exactly what Cheema Grub J had done, Davis LJ observed that it would, further, be good practice for a Judge to expressly state, albeit briefly, that that is what they were doing.