Irregularities and failures in prosecutions: identifying where a client is entitled to civil redress
Criminal solicitors often see clients who have been subject to serious failures or abuses of power by police or the CPS following arrest or during a prosecution, or whom they think have been prosecuted without any serious belief that they committed an offence.
In our experience, clients in these circumstances may have grounds for a civil claim and it is essential that timely steps are taken to investigate avenues for redress and to protect the client’s position, particularly where there is a short limitation period for issuing a claim.
We regularly represent clients who have been the victim of malicious prosecution or misfeasance in public office (abuse of power) by the police. In one case plain clothes officers from the Territorial Support Group had purportedly stopped our client, a young black male, to search him for drugs (his hood being up and him allegedly looking suspicious), but had simply put an arm out in front of him, without identifying themselves as officers, telling him they wanted to search him or the reasons. When he tried to walk on, brushing the officer’s arm aside, he was grabbed and seriously manhandled before being arrested for assault (for the brushing away of the hand). The prosecution was pursued for some time before the defence solicitor was able to establish that there was no evidence the officers had followed the formalities they should have done, and the stop and grabbing was therefore unlawful. The client pursued a successful claim in assault, false imprisonment and malicious prosecution, the officers having known that they had not followed the rules when they stopped him, and that him brushing their hand away was not an assault. The claim settled for a five figure sum.
In another case we successfully sued the police for a serious abuse of power in the window post arrest and pre charge. Our client was suspected of having stolen a phone from a lady in a pub on a night out. Police attended and arrested him for theft; he was not violent, but the officers used excessive force, causing a serious arm fracture. He was held in custody overnight and despite repeated requests for medical attention given nothing but painkillers. During the night, it became clear that the alleged victim had made a drunken assumption that her phone had been stolen, when in fact she had left it charging in the pub. As a result there was no prospect of charging the suspect for theft; however officers decided instead to issue a fixed penalty notice for him being drunk and disorderly. This was purely due to the fact that they had broken his arm and wanted to ward off a successful complaint and civil claim (meaning they could point to his conduct rather than their own), and without considering any of the evidence from the officers who had attended the scene. We only discovered this when the defendant inadvertently disclosed custody CCTV with full sound, enabling us to hear the officers’ decision making process. This claim also settled for a five figure sum.
Civil claims can also be pursued under the Human Rights Act where there are police and/or CPS failures in the evidence collection, disclosure and review process post charge. Such failures can become apparent post-charge, during the prosecution, at or after trial or when a case is discontinued. The police may have taken a partisan approach to their investigations and, keen to get results and bring a successful prosecution, have failed to collect evidence which undermines the case. Typically they will not have secured relevant mobile phone records or CCTV footage that would exonerate the client, or failed to interview witnesses who would cast doubt on the established version of events.
Where this evidence has been collected, police may have delayed disclosing it or have not disclosed it at all; this has a significant impact on the everyday lives of suspects, often causing months of uncertainty and anxiety and where the suspect is on remand this results in a prolonged detention.
Further, even if the police have collected relevant evidence, they may delay in passing it to the CPS, or fail to alert the CPS as to the significance of a particular piece of information or evidence which fundamentally undermines the prosecution.
In turn, delays can also be caused by the CPS failing to review cases in a timely way, leading to prolonged prosecutions when a timely review would immediately show there was no longer any case to answer, and lead to the CPS discontinuing the prosecution. Sometimes it becomes clear that if important evidence had been collected, examined and presented at the outset, the client would never have been charged.
In a 2012 case of ours, the client had been arrested, charged and detained for two months on the basis of what police termed a ‘fake’ passport. The passport was in fact genuine and we sued the prosecutor (in this case the Department for Work and Pensions (DWP)) under the Human Rights Act. The defendants applied to strike out the claim but the High Court ruled that there was an arguable case and the DWP settled the claim soon after. Our client also obtained an apology and the removal of her biometric data (fingerprints and DNA) from the Police National Database.
In another case, the police held onto evidence which exonerated another of our clients for weeks (namely a withdrawal statement, which totally contradicted the initial victim statement which was the sole basis for the prosecution). When they did finally pass it to the CPS, they did nothing to flag up its importance and so it went overlooked for weeks; when it was finally reviewed, the case was discontinued immediately; all the while the client had been held on remand, suffering psychiatrically as a result of being imprisoned for a prolonged period for a crime he had not committed.
Another of our clients remained in prison for two months before the police took crucial witness statements from individuals present at the time of the alleged crime; the presence of these witnesses and their significance had been clear to the police from the outset. It took a further two months for these crucial statements to make their way to the CPS and further weeks before the evidence was reviewed and the case discontinued. The client had never been in prison before and was traumatised by the experience.
We have been pursuing claims of this kind for some time, but the recent Court of Appeal case of Zenati v Commissioner of Police of the Metropolis & Crown Prosecution Service  has shone the spotlight on the opportunities and challenges in this area.
In that case, the claimant held both British and Libyan citizenship. On 7 December 2010 he was arrested on a public order offence, and produced his British passport. The police suspected this was counterfeit and charged him under the Identity Cards Act 2006.
He was brought before magistrates on 10 December and remanded in custody. On the same day, the CPS completed a request for the police to conduct a thorough examination of the passport. This was not passed to the investigating officer until 31 December, while the passport did not reach the National Document Fraud Unit (NDFU) until 13 January 2011. Six days later, the NDFU informed the police that it was real but this was not communicated to the CPS until the following month, resulting in the claimant being detained long after it was clear he had no case to answer.
Claims were brought for false imprisonment and breaches of the Human Rights Act. Whilst the claimant lost at the county court, the Court of Appeal found in his favour, establishing that there is a duty on police and prosecutors to act with ‘special diligence’ in cases where a person has been detained and that where there is no reasonable suspicion they committed the offence, steps must be taken to ensure that person is released; however a false imprisonment claim cannot be pursued on this basis.
Human Rights Act challenges are not always easy claims to bring, as the Zenati case demonstrates, however they do provide an additional means of redress for those who find themselves subject to failures during prosecution. The CPS and police do have a duty to thoroughly and effectively investigate reports of serious crimes and the judgment in Zenati brings some much-needed clarity in relation to the rights of those people who find themselves supposedly “lawfully” detained in prison, where investigative failings and inexplicable delays have deprived them of their liberty.
Failings such as this may be brought about by ill will or prejudice by individuals against those being prosecuted. Often, however, it will be for more benign reasons, such as someone going on leave without reviewing a case properly or having cover for their workload. Where a person’s liberty is at stake however, whether a failing is brought about by human error or as a result of deliberate decision-making, it causes significant damage. Clients can be left feeling deeply aggrieved, with lives turned upside down and work and family life affected.
One can’t help but fear that internal pressures brought about by targets, combined with budget and personnel cuts within those authorities tasked with investigating and prosecuting crimes will only serve to increase such failings.
Whether a client has a potential claim might not be immediately obvious but in our experience, criminal solicitors have a good instinct for spotting red flags. It is then important to investigate any actionable failings at an early stage. Knowing the signs to look out for and having a good idea of the civil remedies available can make a real difference to a client who has been let down by the justice system.
Sasha Barton is an associate in the civil liberties team at Hodge Jones & Allen
This article first appeared in Criminal Law & Justice Weekly: http://www.criminallawandjustice.co.uk/features/Irregularities-and-Failures-Prosecutions