Reference:  EWCA Civ 1035
Court: Court of Appeal (Civil Division)
Judge: Beatson LJ, Sharp LJ, Sir Timothy LLoyd
Date of judgment: 24 Jul 2014
Summary: Witness Immunity Rule; Harassment; Protection from Harassment Act 1997; Malicious Procurement of Arrest; Complaint to the Police; Whether complaint is immune from suit; Whether the immunity that covers defamation also covers torts of false imprisonment, malicious procurement of arrest and harassment.
Download: Download this judgment
Adam Speker QC (Respondent)
Instructing Solicitors: Both parties instructed Counsel via Direct Access Scheme
C and D were formerly husband and wife. On 16 July 2009 C was arrested for breach of an order made in matrimonial proceedings. An hour later he was arrested again for breach of a different order made in other proceedings. He was detained for just over 4 hours as a result of the two arrests. The arrests were effected following information being given to the police by D. C was released on bail and no prosecution ensued.
C sued the Police before bringing D into the claim alleging false imprisonment/ wrongful arrest and breach of the Protection from Harassment Act 1997 against her. The claims were based upon the complaint to the police save that the claim in harassment also included two text messages. D raised several defences including that her complaints to the police were immune from suit. She contended that the text messages were reasonable.
The case came on for trial before HHJ Baucher in October 2013 at Central London County Court against D only, C having settled with the police. The Judge ruled that the complaints to the police were covered by immunity from suit. She held in a further judgment that the claim in harassment based on the claim in respect of the two text messages could not succeed because the statutory defence that the conduct was reasonable was made out. C apppealed.
1. Whether the Judge was correct to hold that D was not liable to be sued for damages for false imprisonment on the basis that her acts which would be relevant to the cause of action were statements made to the police which might have been the basis of evidence in court if the matter had led to a prosecution (‘the witness immunity rule’).
2. Whether the Judge was correct to hold that a claim under the Protection from Harassment Act 1997 was also barred by immunity from suit for the same principle, insofar as it relied on statements made to the police.
3. Whether the Judge was correct to strike out the claim under the Protection from Harassment Act 1997 in respect of two remaining text messages not covered by the witness immunity rule.
Dismissing the appeal, Sir Timothy Lloyd (with whom Beatson LJ and Sharp LJ agreed) held:
1. The Judge was correct to rule as she did. D’s complaint to the police was within the scope of the immunity rule because it was the first step in a process that might have involved the criminal justice system, Westcott v Westcott  QB 407 followed. There is a significant difference between a case where statements made lead to the abuse of the court process and a case where what happens is that the claimant is arrested by the police on the basis of information provided by a defendant, but no prosecution follows: Roy v Prior  AC 470 distinguished.
2. The Judge was correct to rule as she did. The policy of the immunity rule applied just as much to a claim under the Protection from Harassment Act 1997 based on a complaint to the police as it does to a claim in defamation. To the extent that the course of conduct complained about was based upon complaints to the police then those particulars must be ignored.
3. The Judge was correct to strike out the claim under the 1997 Act in respect of the two remaining text messages. Whilst the Court’s conclusion was not quite the same as the judge’s reasoning, the language was simply not capable of being seen as harassment.
An important decision on witness immunity holding that the principle as it relates to defamation claims covers other causes of action where a complaint to the police does not lead to prosecution.
The Court has drawn a clear line between complaints made to the police that result in prosecution and those that do not. Where a complaint results in prosecution or other court proceedings, if procured wrongfully it will be an abuse of the court’s process and therefore an action will lie against the complainant (in malicious prosecution or a similar tort), whereas where proceedings do not follow, the normal witness immunity rule will apply. The court’s reasoning of where the line should be drawn is based on the fact that a remedy may be available against the police and there will be independent consideration of the circumstances by the CPS before a prosecution is commenced (-) whereas when an order is made by the court there is no remedy against the court for loss caused.
However, whilst the decision is clear the conflict between immunities and the rule that where there is a wrong there should be a remedy remains. ]