No witness immunity for the Forensic Science Service

15 July 2013 by Rosalind English

Thomas James Smart v The Forensic Science Service Ltd [2013] EWCA Civ 783 – read judgment

There was evidence in this case that employees of the Forensic Science Service had altered the exhibit numbers on the evidence in question, possibly to cover up their mistake.

The appellant challenged an order of the court below striking out his claim that the respondent (the FSS) had acted negligently and in breach of his rights under Article 8 of the European Convention on Human Rights.

Factual background

The police had searched the appellant’s home for drugs. During the search, the officers found a bullet which the appellant claimed he had bought as an ornament, assuming it not to be live. Whether it was live could not be discerned from a visual examination, and it was sent to the FSS for analysis. The FSS confirmed that it was live. The appellant pleaded guilty to the strict liability offence of possession of live ammunition contrary to the Firearms Act 1968. Some months later, it transpired that there had been a mix-up at the FSS. The appellant’s bullet, which was not live, had been confused with another bullet, which was. When it was discovered that the appellant’s dummy bullet had been wrongly labelled as live, the appellant’s plea was vacated and the charge was dismissed. Unfortunately this meant that the appellant was not eligible for statutory compensation.

He then began civil proceedings alleging that the FSS owed him a duty to operate proper systems to ensure that the continuity of exhibits was secure, and that it had failed in that duty. He also argued that the defendant had violated his Article 8 rights. The defendant applied for a strike out of this claim on grounds of witness immunity. The judge concluded that the evidence relating to the collection, transmission and examination of exhibits was indeed protected by witness immunity, and that this immunity covered both the negligence and the claims pursuant to the Human Rights Act 1998. He further held that the respondent owed the appellant no duty of care and was not a public authority for the purposes of the Human Rights Act.

The issues in this appeal were whether the appellant should be allowed to add deceit to his claim against the FSS for altering the records relating to the bullets and whether the order striking out the negligence and human rights claims should be maintained.

The Court of Appeal allowed the appeal.

Reasoning behind the judgment

The amendment including allegations of deceit against the FSS should be permitted.  The evidence showed that somebody had altered the exhibit numbers on the bullets, had made no contemporaneous note as to why, and had later concealed the fact of the alteration. Indeed, the fact of the alteration had not been disclosed until a year after the proceedings had been begun. It appeared to be a grave state of affairs, and it could not be assumed that the absence of an explanation was due to the appellant’s delay in applying for the amendment.

As for the negligence and human rights claims, Darker v Chief Constable of West Midlands [2001] 1 A.C. 435 established that there was no immunity covering the fabrication of evidence in circumstances where the fabrication was never intended to appear in any statement. The paradigm circumstance falling within the protection of judicial proceedings immunity was the giving of evidence by a witness in court, and that had been extended to the preparation of evidence with a view to it being adduced. The rationale for the immunity was the need to protect witnesses from the fear that they would be harassed by subsequent actions against them. It was designed to encourage freedom of communication in judicial proceedings and to prevent a collateral attack on any decision arising from allegedly false evidence. Given that amendment including a claim for deceit had been allowed, the rationale for conferring judicial proceedings immunity had gone. Witnesses for the FSS, if called, would have to explain and justify their handling of the exhibits. They could not be protected from being questioned or from accounting for their actions. Now that the allegations of deceit were to be fully aired, the immunity served no purpose because it would not prevent a collateral attack. In the light of the amendments made, Moses LJ thought it would be wrong to exclude the proposition

that whoever it was who interfered with the correct exhibit number, whether it was the forensic examiner or not, owed a duty to the person to whom the bullet would be attributed as a result of interference with the exhibit number.

The effect of interference with the exhibit numbers, whether it was designed originally to conceal confusion or “mix up” or not, was the same as planting the real bullet in the appellant’s premises.

Moses LJ was doubtful that the human rights claim would need resolution but did not agree that the question whether the respondent was a public body or not should rest upon summary judgment without any full examination of the facts.

Aikens LJ observed in his concurring judgment that the present case was not the right one to analyse and define the outer limits of the scope of witness immunity:

The general principle must be that where there is a wrong there is a remedy and immunity is a derogation from a person’s right of access to a court which requires to be justified. A justifiable boundary has to be drawn somewhere, but it cannot be drawn when you do not know the terrain.

Sign up to free human rights updates by email, Facebook, Twitter or RSS