Coghlan v Chief Constable of Cheshire Police & Ors [2018] EWHC 34 (QB)

Case No C90BM220

[2018] EWHC 34 (QB)

Date 17 January 2018

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

BIRMINGHAM DISTRICT REGISTRY

Before

MR EDWARD PEPPERALL QC

SITTING AS A DEPUTY HIGH COURT JUDGE

Between

ARRAN CHARLTON COGHLANClaimant

(1) CHIEF CONSTABLE OF CHESHIRE POLICEDefendants

(2) CHIEF CONSTABLE OF GREATER MANCHESTER POLICEDefendant

(3) DIRECTOR GENERAL OF THEDefendant

NATIONAL CRIME AGENCYDefendant

Mr Mark Heywood QC and Mr Christopher Snell (instructed by Banahan Rogers Smith LLP) for Claimant

Mr Jeremy Johnson QC and Miss Georgina Wolfe (instructed by Cheshire Constabulary Legal Services) for First Defendant

Miss Fiona Barton QC (instructed by Greater Manchester Police Legal Services) for Second Defendant

Mr Russell Fortt (instructed by Weightmans LLP) for Third Defendant

Hearing Hearing dates: 18 & 19 December 2017

Judgment sent out in draft: 5 January 2018

Judgment handed down: 17 January 2018

Judgment

MR EDWARD PEPPERALL QC:

[1]On 9 February 2010, the police were called to Arran Coghlan’s Alderley Edge home to find him bleeding from knife wounds and Stephen Akinyemi dead. Mr Akinyemi had been shot in the head at close range by a 9mm Beretta handgun fitted with a silencer. He had also been shot twice in the chest, but the bullets were lodged in the body armour that he was wearing. The dead man was found clutching a bloodied lock knife with a three-inch blade.

[2]This was no ordinary crime scene. Indeed, it bore the hallmarks of the violent settling of a gangland dispute.

[3]Both men were known to the police:3.1 Arran Coghlan had twice before been charged with murder. First, he had been tried for the July 1994 shooting of Chris Little. He was subsequently tried for the September 1999 kidnapping and brutal murder of David Barnshaw. He was acquitted by the jury in the first case and the indictment was stayed by Penry-Davey J in the second case. At the time of the February 2010 incident, Mr Coghlan was the subject of covert surveillance initiated because of his suspected involvement in conspiracy to murder, the supply of Class A drugs and firearms offences. Such investigation was given the codename “Operation Confection.”

3.2 While there is no clear evidence before me, it appears that Stephen Akinyemi was suspected of involvement in serious organised crime, including murder. Specifically, he was suspected of involvement in the January 2008 stabbing of Mr Coghlan. At the time of his death, Mr Akinyemi was also suspected of the recent knifepoint rape of a woman.

[4]While these matters are relevant to Mr Coghlan’s claim, it is important to state from the outset that none of these very serious allegations have ever been proved against him. I am told that Mr Coghlan has some relatively minor convictions, but he has been acquitted of two of the murder charges that he has faced and the indictment stayed in the third. Further, the circumstances of Mr Akinyemi’s death have been thoroughly investigated by HM Assistant Coroner, Bernard Richmond QC, over an 8-day inquest. The coroner was satisfied on the balance of probabilities that Mr Akinyemi had been the aggressor and that he had died as Mr Coghlan sought to defend himself against a violent attack.

[5]On 9 February 2010, Mr Coghlan was taken to hospital and, later that day, arrested on suspicion of murder by officers from Cheshire Police. The murder investigation was given the codename “Operation Aspic.” On 13 February 2010, Cheshire Police formally charged Mr Coghlan with Mr Akinyemi’s murder. He was remanded in custody where he remained until 29 July 2010 when the prosecution offered no evidence at a hearing before His Honour Judge Globe QC. A verdict of not guilty was entered and Mr Coghlan was released from custody.

[6]The case collapsed because a number of significant pieces of expert evidence undermined the murder charge:6.1 First, a forensic scientist reported on 2 March 2010 that both men’s blood was found on the knife:

(a) Mr Coghlan’s blood was found on the blade, such finding being consistent with his having been stabbed by the knife.

(b) There was also a fine mist of Mr Akinyemi’s blood that was probably deposited on the knife when he was shot. Importantly, the mist of Mr Akinyemi’s blood was overlaid on top of Mr Coghlan’s blood. These findings indicated that it was likely that Mr Coghlan had been stabbed before Mr Akinyemi was shot.

6.2 Secondly, a forensic scientist reported that Mr Akinyemi’s non-blood DNA was found on a bullet casing, thereby indicating that he had probably loaded the gun. This supported Mr Coghlan’s claim that the gun was brought to the scene by Mr Akinyemi.

6.3 Thirdly, medical evidence concluded on 2 April 2010 that Mr Coghlan’s injuries were consistent with self-defence.

6.4 Fourthly, on 22 July 2010 further scientific evidence found that flakes of paint on the knife matched samples of paint taken from Mr Akinyemi’s house but not samples from Mr Coghlan’s home. Such finding suggested that Mr Akinyemi had brought the knife to the scene.

[7]After thorough investigation, the coroner made the following findings:7.1 Mr Akinyemi was in dispute with a Phillip Atkinson. Mr Akinyemi was upset that the other man was also known by the nickname Aki and that Mr Atkinson had used the resulting confusion to avoid trouble in his business dealings by those who respected, or perhaps - I venture to add - feared, Mr Akinyemi.

7.2 Mr Coghlan was on friendly terms with both men and sought to mediate in their dispute. He sought to broker a deal under which Mr Atkinson would, or would appear to, change his name. In any event, Mr Atkinson was planning to leave the area.

7.3 Mr Akinyemi insisted on a face-to-face meeting with Mr Atkinson to seal the agreement. The meeting was arranged for Mr Coghlan’s home on 9 February 2010.

7.4 That day, Akinyemi and Coghlan met at Mr Coghlan’s office and travelled together in Mr Coghlan’s car to his home. Unknown to Mr Coghlan, the other man was carrying the handgun and knife and was wearing body armour. He was also wearing gloves with the trigger finger removed that are, the coroner heard, popular with those involved with guns in gang culture.

7.5 Once at Mr Coghlan’s home, Mr Akinyemi became agitated and insisted that Mr Coghlan call Mr Atkinson. Coghlan texted Atkinson telling him not to answer his mobile. He then called him. Despite the text, Mr Atkinson not only answered the call but, when Mr Coghlan pretended that there was no answer, he phoned Mr Coghlan back.

7.6 Mr Akinyemi asked to use the bathroom. He called for Mr Coghlan who he then confronted with the gun. Mr Akinyemi punched Mr Coghlan, breaking and dislodging his glasses and thereby putting Coghlan at some disadvantage.

7.7 A violent struggle ensued, in the course of which Mr Coghlan fought for control of the handgun. Meanwhile, the ambidextrous Akinyemi pulled out the lock knife and started stabbing Coghlan.

7.8 Fighting for his life, Mr Coghlan either obtained control, or at least restrained Mr Akinyemi’s use, of the gun. Four shots were fired. Two bullets lodged harmlessly in Mr Akinyemi’s body armour, a third hit the wall while a fourth passed through Mr Akinyemi’s brain.

[8]On these findings, Mr Coghlan was not guilty of murder having acted in lawful self-defence.

[9]On 5 August 2016, Mr Coghlan issued the current proceedings against the Chief Constables of Cheshire and Greater Manchester Police and the Director General of the National Crime Agency (“the NCA”). By applications issued in May and June 2017, each defendant now seeks to strike out the claim against it or, in the alternative, seeks summary judgment against Mr Coghlan. By his own application dated 13 December 2017, Mr Coghlan seeks permission to amend the claim form and to join the Director of Public Prosecutions (the “DPP”) as a Fourth Defendant. While the cross-application was listed before me, Mr Heywood QC, leading counsel for Mr Coghlan, accepted that the DPP would have to be given notice of the application for joinder and, accordingly, it could not be dealt with at this hearing.

[10]On 19 December 2017, I indicated that the claim against the Greater Manchester Police and the NCA would be struck out pursuant to r.3.4(2)(a) of the Civil Procedure Rules 1998 and that, in any event, there would be summary judgment in favour of all three defendants. This judgment sets out the detailed reasons for those decisions. THE PLEADED CLAIMS CAUSES OF ACTION

[11]Although proceedings were issued on 5 August 2016, the court received the draft claim form on 28 July 2016. Accordingly, by para. 5.1 of Practice Direction 7A, the claim is treated for limitation purposes as having been issued on the day of receipt.

[12]The claim form gave the following brief details of the claim:

“Declaratory finding that the Claimant was maliciously prosecuted in the criminal case code named Operation Aspic, a case in which no evidence was eventually offered against the Claimant but which he spent 5¾ months on remand for. In addition the Claimant will seek a declaration that the Defendants are guilty of misfeasance in public office.”

[13]Consistently with the claim for purely declaratory relief, the claim was said to have no value. The claim form did, however, include the following additional particulars:

“The Claimant will be pursuing another malicious prosecution case relating to a failed prosecution in Operation Confection which is intrinsically linked to this claim (and which the Claimant spent 9 months on remand for) but has a limitation date of 9 June 2017. The Claimant will be seeking damages in this claim, and will seek to consolidate this claim to that.”

[14]In settling the claim form, the Claimant’s solicitor ticked the box to indicate that the claim included issues under the Human Rights Act 1998.

[15]The original Particulars of Claim were filed in November 2016 and asserted that Mr Coghlan would not be in a position to file fully pleaded Particulars of Claim until the conclusion of the inquest into this shooting, the disclosure of documents by the Cheshire Police and the conclusion of an investigation by the Independent Police Complaints Commission. The Particulars of Claim pleaded claims for malicious prosecution and misfeasance in public office against all three defendants. Further, Mr Coghlan purported to reserve the right to pursue a claim under the Human Rights Act 1998. The action was then stayed until the conclusion of the inquest.

[16]Counsel settled Amended Particulars of Claim in April 2017. Mr Coghlan now alleged false imprisonment and malicious prosecution. By the prayer, Mr Coghlan sought both aggravated and exemplary damages and declarations that he had been maliciously prosecuted and that the defendants were guilty of misfeasance in public office.

[17]Finally, by Mr Coghlan’s recent application, he sought permission to amend the claim form. Leaving the matter of the joinder of the DPP to one side, he sought, less controversially, to delete the claim for misfeasance in public office.

[18]Accordingly, it appeared to me upon reading these papers that Mr Coghlan sought only to pursue claims for false imprisonment and malicious prosecution. At the outset of the hearing, Mr Heywood QC helpfully clarified that there was no claim under the Human Rights Act 1998 and that the claim for misfeasance had been abandoned. Thus, defence counsel only addressed the claims for false imprisonment and malicious prosecution.

[19]In fact, when he came to make his own submissions, Mr Heywood QC also abandoned any claim for false imprisonment. This was a change of position since Mr Coghlan’s skeleton argument (drafted before Mr Heywood’s instruction) had sought to argue that he should be allowed to pursue the false imprisonment claim notwithstanding the acknowledged expiry of the limitation period for such claim and that he simply needed permission to amend his claim form. Such argument was, in my judgment, obviously bad and rightly not pursued:19.1 First, as Mr Johnson QC, leading counsel for Cheshire Police, demonstrated, any claim for false imprisonment necessarily ended upon the court’s remanding Mr Coghlan in custody: Austin v Dowling (1870) LR 5 CP 534, at 540; Zenati v Commissioner of Police of the Metropolis

[2015] QB 758

, at [50]-[53].

19.2 Secondly, since Mr Coghlan was first remanded by the Magistrates’ Court on 15 February 2010, the claim for false imprisonment was already statute barred by the time that the court received the claim form. Accordingly, even if the case could otherwise be brought within r.17.4 of the Civil Procedure Rules 1998 and section 35 of the Limitation Act 1980, such provisions could not be relied on in this case.

[20]Thus, the case has been reduced to the single allegation that the three defendants maliciously prosecuted Mr Coghlan. THE AMENDED PARTICULARS OF CLAIM

[21]After reciting the history (including the previous and subsequent failed prosecutions of Mr Coghlan for murder, assault and conspiracy to supply Class A drugs), the events of 9 February 2010 and Mr Coghlan’s plea of self-defence were pleaded at paras 5-6 of the Amended Particulars of Claim. The pleading then complained, at paras 7-8, that Mr Coghlan was charged with murder on 13 February 2010 and remanded in custody until the Crown Prosecution Service (“the CPS”) offered no evidence on 29 July 2010.

[22]It was asserted, at para. 9, that Greater Manchester Police and the NCA were third-party agencies that Cheshire Police deemed to hold material relevant to the murder enquiry. It was pleaded that a policy was agreed for the disclosure of relevant material to Cheshire Police, and specifically “anything that undermines the prosecution case or assists the defence.”

[23]At para. 10, it was asserted that sensitive material held by Greater Manchester Police and the NCA was provided directly to the CPS, and specifically that the Manchester force therefore became directly involved in disclosure from 3 March 2010.

[24]At para. 11, Mr Coghlan pleaded: “Further, the Second Defendant, in conjunction with the Third Defendant, had jointly commenced a targeted surveillance operation into both the Claimant and Stephen Akinyemi during the early part of the year 2008 pursuant to an investigation codenamed Operation Confection.” (For completeness, in the course of submissions, Mr Heywood QC withdrew the suggestion that Mr Akinyemi had been a target of Operation Confection.)

[25]The pleader then asserted at, para. 12:

“As a result of the Second and Third Defendants’ integral role in matters relating to: (i) surveillance; (ii) the provision of information / disclosure; (iii) co-operation with and assistance provide (sic) to the First Defendant; and (iv) co-operation and assistance provided directly to the Crown Prosecution Service, the Claimant avers that the Defendants acted individually and collectively to prosecute him.”

[26]Allegations, which are now abandoned, of false imprisonment were then pleaded against all three defendants at paras 13-14. There was also a suggestion, neither pursued before me nor pleaded in either the original or amended claim form and, in any event, obviously out of time, that Mr Coghlan had been wrongfully arrested.

[27]Particulars of malicious prosecution were given under para. 14(c) of the pleading.

(a) and (c):

“(a) The Defendants, or each of them, were actuated by malice; instituting proceedings against the Claimant as a result of an indirect or improper motive arising out of the past, unsuccessful, attempts that had been made to secure the conviction of the Claimant as further set out at paragraph 2 of these Particulars of Claim.” “(c) The over-arching motive of the Defendants, and each of them, was to secure the conviction of the Claimant, who they perceived (wrongly) to be a violent gangland boss, at any cost.”

[28]In support of this central contention, Mr Coghlan relied on his unjustified arrest in respect of Operation Confection and prosecuting counsel’s concession in a related appeal that, if he were opening the case again, he would “not even mention (the Claimant’s) name.”

[29]At para. 15 of the Amended Particulars of Claim, Mr Coghlan pleaded that the senior investigating officer in the murder inquiry made clear that there were only two possible case theories. Either:

“(a) … the Claimant had lured Stephen Akinyemi to his home and had there carried out an ‘execution’ by shooting Stephen Akinyemi in the head before staging the crime scene, including causing himself injuries via knife wounds in order to suggest self-defence; or (b) … the Claimant … was attacked by Stephen Akinyemi and had acted in self-defence.”

[30]Mr Coghlan pleaded that it was therefore critical to establish who had brought the weapons to his house and in which order they were used to inflict injury. He then asserted that the Crown dropped the case on the basis of what it claimed was “recent” evidence that Mr Akinyemi had brought the knife to the house. Mr Coghlan challenged the suggestion that such evidence was recent and contended that the prosecution should never have been brought, alternatively that it should have been dropped sooner.

[31]At para. 18, detailed particulars were given of Mr Coghlan’s assertion that there was no reasonable or probable cause for his prosecution.31.1 He relied, first, on the defendants’ alleged prior knowledge that Mr Akinyemi was going to attend at Mr Coghlan’s home, that Coghlan was seeking to mediate a dispute between Akinyemi and Atkinson and that Akinyemi was a violent man with access to weapons and a suspect in serious criminal investigations, including for murder and rape.

31.2 He also relied on Cheshire Police’s acceptance that it could not seek to rely on the previous failed prosecutions against Mr Coghlan for murder.

31.3 He then referred to the circumstances of the case, including that Mr Akinyemi was likely to have been armed, that he was wearing body armour and gloves said to be typical of those worn by gunmen in gang culture, that Mr Akinyemi was found with a knife in his hand and that Mr Coghlan was badly injured.

[32]At para.

(e) , Mr Coghlan advanced a secondary case:

“… a point was reached at an early stage of the prosecution such that the Defendants knew, or ought upon proper investigation and analysis to have known, that there was no longer reasonable and probable cause to continue to detain and prosecute the Claimant. That point was reached as a result of the findings of forensic examinations carried out shortly after the Claimant’s detention that significantly or substantially undermined the case theory on which the prosecution was pursued.”

[33]Mr Coghlan relied on the fact that Anna Ellison of the Chorley Laboratory of the Forensic Science Service had e-mailed her findings to Cheshire Police on 18 February 2010. Specifically, she had found blood on the knife that had been sent away for DNA analysis, but also spots of blood that had dripped on to the blade from above. She had also found blue and white debris on the blade and retained samples.

[34]Mr Coghlan then pleaded that Ms Ellison later made a statement in which she explained that the spots of blood indicated that it had been in the vicinity of airborne blood after it had been used to slash Mr Coghlan. This finding, Mr Coghlan asserted, was ultimately fatal to the prosecution case since it demonstrated that the knife was used to injure him before a misting of blood was deposited on to the knife by the shooting of Mr Akinyemi.

[35]Mr Coghlan asserted that:35.1 by 2 March 2010, the defendants were aware of the results of the forensic analysis of the blood found on the knife;

35.2 by 29 March 2010, they were aware, or should have been aware, that a bullet cartridge recovered from the scene held Mr Akinyemi’s non-blood DNA and no match for Mr Coghlan, thereby indicating that Mr Akinyemi had loaded, and probably owned, the gun; and

35.3 by 2 April 2010, they were aware, or should have been aware, that medical evidence concluded that Mr Coghlan’s injuries were consistent with self-defence.

[36]Further, he pleaded that the defendants failed to act properly or in a timely manner in taking and testing paint samples from both men’s houses. Such investigation was only authorised on 2 July 2010, and ultimately showed that the knife came from Mr Akinyemi’s home address.

[37]At para. 20 of the pleading, Mr Coghlan asserted that there were no lawful grounds for his excessive detention and then pleaded:

“20. … The Defendants unlawfully caused the Claimant’s excessive detention by their failures to cause the prosecution to be dropped at an earlier stage following receipt of the evidence set out at paragraphs 15-18 hereinabove which rendered the prosecution case untenable. 21. Further or alternatively, the Defendants failed to take such enquiries as were reasonably expedient to confirm the true position, or failed to heed the information that had been presented to them within a reasonable period of time thus resulting in the Claimant’s prolonged incarceration. 22. Further … there were no reasonable grounds not to authorise the Claimant’s release on bail, or to oppose his request for bail following charge.”

THE TORT OF MALICIOUS PROSECUTION

[38]In order to establish malicious prosecution, Mr Coghlan must prove five matters:38.1 He was prosecuted by the relevant defendant.

38.2 The prosecution was determined in his favour.

38.3 The prosecution was without reasonable and probable cause.

38.4 The prosecution was malicious.

38.5 He suffered actionable damage.

[39]Mr Coghlan was acquitted on 29 July 2010. That aside, all of the other elements of the alleged tort are in dispute in this case. The hearing before me was not, however, a trial and the submissions were focused upon the question of whether Mr Coghlan was prosecuted by one or more of the Defendants.

[40]The leading case as to who in law is the prosecutor for the purposes of the tort of malicious prosecution is Martin v Watson [1996] 1 A.C. 74. Lord Keith said, at p.86C:

“The mere fact that an individual has given information to the police which leads to their bringing a prosecution does not make that individual the prosecutor.”

[41]He qualified that general position, at pp.86G-87A:

“Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.”

[42]In Martin v Watson, the defendant had made a complaint of indecent exposure against the plaintiff. There were no other witnesses. Accordingly, Lord Keith held, at pp.87E-F:

“In the circumstances of this particular case, therefore, I find that the defendant was indeed actively instrumental in setting the law in motion against the plaintiff. To hold otherwise would, I consider, be an affront to a proper sense of justice. She wanted the plaintiff to be arrested and dealt with from the start, and that is what she achieved in causing DC Haynes to obtain the warrant from the magistrate. She was, as I say, the only person who could testify about the alleged indecent exposure. I therefore find that the defendant is to be regarded as a prosecutor in setting the law in motion against the plaintiff.”

[43]In the unreported case of Moon v Kent County Council (15 February 1996), Mr Moon had been prosecuted for falsifying returns to Kent County Council in respect of the revenue achieved from running a bus service. The prosecution relied on complex calculations provided by a Mr Walters from the local authority. The case collapsed at trial when the flaws in Mr Walters’ methodology were exposed.

[44]Allowing Mr Moon’s appeal against the striking out of his claim, McCowan LJ held, at page 13 of the transcript, after citing the then recently decided case of Martin v Watson:

“In my judgment it is properly arguable that it was virtually impossible for the police officers to exercise an independent judgment and that the prosecution was procured by Mr Walters.”

[45]Of particular relevance in that case was that the calculations were very complicated. Indeed, McCowan LJ confessed that he had struggled to follow the calculations despite a detailed explanation from counsel. He said, at page 14:

“I am convinced that without Mr Walters’ schedule, the police would not have started to make sense of this case. This was not a case of a man reporting his suspicions to the police and leaving it to them. He led them to the extent of providing the very figures which were inserted into the charge. There is no evidence before the court, nor has it ever been asserted in the defence, that any exercise to check the detail of Mr Walters’ figures or working was ever carried out by the police or anyone else connected with the prosecution.”

[46]Agreeing, Auld LJ added, at pages 17-18 of the transcript:

“I take the test to be that indicated by Lord Keith in Martin v Watson …, namely that an action for malicious prosecution may lie against one who was in substance the person responsible for the prosecution, even though not technically the prosecutor. Such substantial responsibility for the prosecution is not confined to cases where the alleged prosecutor is the only one who knows whether or not the offence has been committed, though that is likely to be the most common instance. It may also exist where, as a matter of practicality, his assertion as to the facts is unlikely to be audited or tested to destruction by others before the prosecution is launched.”

[47]While crimes in England and Wales are investigated by the police, they are ordinarily prosecuted by the CPS. In summary, the system works as follows:47.1 Where a police officer has reasonable grounds for suspecting that an offence has been committed, he may arrest without warrant anyone whom he has reasonable grounds to suspect of being guilty of such offence in order to allow a prompt and effective investigation: s.24 of the Police and Criminal Evidence Act 1984.

47.2 Having been arrested, if the custody officer determines that there is sufficient evidence to charge the suspect then the officer may either release him on bail or keep him in police detention to enable the DPP to make a charging decision: s.37(7).

47.3 It is the DPP (or rather a Crown Prosecutor acting on her behalf) who decides whether there is sufficient evidence to charge the suspect with an offence and, if so, with which offence: ss.37B(2)-(3).

[48]A number of the more recent cases have considered the separate roles of the police and the CPS in the investigation and prosecution of offences. For example, in AH v AB

[2009] EWCA Civ 1092

, AB alleged rape against AH. AH was convicted at trial but his conviction was set aside on appeal. He subsequently sued AB for malicious prosecution. Blake J dismissed the claim holding that AB was not the prosecutor. His appeal was dismissed in part because of the independent intervention of the CPS. Sedley LJ stated the principle at [3] and [47]:

“[3] … even if AB had gone straight to the police and made it clear that she wanted Mr H prosecuted, the independent intervention first of the police and then of the CPS would, in the absence of proof that the prosecution was in reality her doing and not theirs, have made the latter the prosecutor.” “[47] Even if she had gone directly to the authorities, the professional responsibility for the case assumed first by the police and then by the CPS would prima facie have made the latter for all legal purposes the prosecutor. It would have been necessary to establish that she had deliberately manipulated them into taking a course which they would not otherwise have taken if, pursuant to Martin v Watson, she was to be regarded in law as the prosecutor.”

[49]In his supporting judgment, Wall LJ agreed, at [59]:

“In my judgment, provided the CPS makes an independent decision to prosecute, and its process is not overborne or perverted in some way by the complainant, the complainant is protected.”

[50]Moore-Bick LJ considered that the trial judge had been wrong to try the issue of whether AB was a prosecutor as a preliminary issue. Nevertheless, he also dismissed the appeal, holding on this point, at [84]:

“… I think [Blake J] was right to hold that this was not a case in which the prosecuting authorities were deprived of the ability to exercise independent judgment. Unfortunately, cases of this kind, in which the complainant’s word is pitted against that of the accused, are not uncommon, especially if there has been any significant lapse of time between the events in question and the investigation. However, that does not normally prevent the authorities from assessing the credibility of the complainant by reference to the inherent plausibility of the account and such circumstantial evidence as may be available. As to this, I entirely agree with the observations made by Sedley LJ in para. 47 of his judgment. In my view the court should be very cautious before reaching the conclusion that the authorities were unable (or even, as Mr Warby emphasised, virtually unable) to exercise independent judgment.”

[51]Thus, while the fact that the decision to prosecute was taken by the CPS is not necessarily fatal to a claim that another person was the prosecutor, Wall LJ observed, at [58]:

“Like Moore-Bick LJ, I would anticipate that cases in which an action for malicious prosecution would lie following a decision by the CPS to prosecute would be rare.”

[52]In Ministry of Justice v Scott

[2009] EWCA Civ 1215

, five prison officers had complained of assault by Mr Scott. Scott was prosecuted but acquitted of assault, and subsequently sued the Ministry of Justice as the employers of the five officers for malicious prosecution. The case was a second appeal from a decision of a Recorder sitting in the County Court dismissing the Ministry’s application to strike out the claim, alternatively for summary judgment. The Court of Appeal dismissed the appeal. Pill LJ accepted that evidence might have been available from other sources such as other prisoners, but held, at [43]:

“The CPS received statements alleging assault from five prison officers who were eyewitnesses to an incident in the prison. Arguably, it was virtually, in practical terms, impossible for the CPS to exercise independent discretion in the face of such evidence.”

[53]He nevertheless expressly agreed, at [41], with Wall and Moore-Bick LJJ’s observations in AH v AB that cases in which a claim for malicious prosecution would lie following a decision to prosecute by the CPS would be rare.

[54]Longmore LJ agreed with the result, adding at [49]:

“To my mind it is not plain that the circumstances of the present case were such as to enable (the CPS lawyer) to exercise an independent judgment on 19 December 2002 when she advised that Mr Scott should be prosecuted for assault and affray. She had little option but to accept the account given by the prison officers.”

[55]In Rees v Commissioner of Police for the Metropolis

[2017] EWHC 273 (QB)

, Mitting J reviewed the authorities. Referring to Moon v Kent County Council, AH v AB, Ministry of

Justice v Scott and one other case, the judge observed, at [143]:

“Each of the four cases was a simple one. In three of them, the basis of the prosecution was the word of one person. In one, it was the word of five colleagues, working in a closed environment. In none of them was it possible for the charging police officer or the CPS or both to exercise a judgment independent of the word of the person or persons making the allegation.”

[56]In Mahon v Rahn (No 2) [2000] 1 W.L.R. 2150, Brooke LJ summarised the principles at [269]:

“In a simple case it may be possible to determine the issue quite easily by asking these questions. (1) Did A desire and intend that B should be prosecuted? (2) If so, were the facts so peculiarly within A’s knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment? (3) Has A procured the institution of proceedings by the professional prosecutor, either by furnishing information which he knew to be false, or by withholding information which he knew to be true, or both?”

[57]Brooke LJ added, at [270]:

“In the more complex case it is likely to be more difficult to apply these tests, but I would adopt the approach suggested by Richardson J in Commercial Union Assurance Co. of NZ Ltd v Lamont [1989] 3 NZLR 187, 199 when he said that the tests should be the same when the police had conducted an investigation and decided to prosecute, but that they should be cautiously applied. The reason, of course, is, as he also took into account, that prosecuting authorities are trained and accustomed to consider the evidence placed before them with an appropriately critical eye. Crown Prosecutors, for instance, have to be satisfied that there is enough evidence to provide a realistic prospect of conviction, and paragraph 5 of the current Code for Crown Prosecutors describes in clear terms the tests they have to apply before they can allow themselves to be so satisfied.”

[58]Rees was a murder case. Mr Morgan had been murdered with an axe in the car park of a pub. The prosecution relied heavily on the evidence of a criminal called Gary Eaton who said that he was at the pub on the night of the murder. While Eaton did not claim to have witnessed the fatal blow, he claimed to know who had been involved. He gave an account of seeing the dead man together with his assailants before they drove off. Eaton’s evidence was contaminated by the improper actions of the senior investigating police officer, Detective Chief Superintendent Cook.

[59]Nevertheless, Mitting J dismissed the malicious prosecution claim against DCS Cook holding that he was not to be treated as the prosecutor for the purposes of the tort. He said, at [146]:

“In this case, a vast amount of information and evidence was presented to the CPS for Sampson (the CPS lawyer) and Treasury Counsel to consider. With one significant exception – the case of Fillery – that material did not consist only or determinatively of the evidence of one flawed witness, Eaton. Eaton’s evidence was important to the case as a whole. It had been contaminated by the actions of Cook which Cook deliberately withheld from the CPS and Treasury Counsel. However, I have no doubt that Sampson, advised by Treasury Counsel, reached the decision to charge three of the claimants with murder and Fillery with doing an act tending and intended to pervert the course of justice in the exercise of independent judgment on the basis of all of the material of which he was then aware. His information was necessarily incomplete, because of the actions of Cook. Nevertheless, for Cook to be treated as the prosecutor, the law requires to be stated in a manner not established by existing authority. For the claimants to succeed on this issue, the law must be that an investigator who, by his deliberate conduct in relation to an important element of a case, prevents the independent decision-maker from reaching a fully informed decision, is to be treated for that reason alone as the prosecutor. There is a difference between making it ‘in practical terms virtually impossible for the CPS to exercise independent discretion’ and making the exercise of that discretion more difficult, because of the deliberate concealment of an important fact. In my judgment, the latter lies the wrong side of the line for determining whether or not someone other than the CPS is to be treated as the prosecutor for the purpose of the tort of malicious prosecution. Applying the principles derived from the authorities, Cook’s conduct did not make it virtually impossible in practical terms for the CPS, advised by Treasury Counsel, to exercise their independent discretion.”

[60]In Clifford v The Chief Constable of the Hertfordshire Constabulary

[2008] EWHC 3154 (QB)

, Cranston J addressed the issue of the police’s continuing liability for malicious prosecution once the matter is in the hands of the CPS. He said, at [49]-[50]:

“49. In advancing the claimant’s case Mr Thomas contended that the police remained liable in tort for the prosecution. Having launched the prosecution they had a duty to inform the CPS of matters such as the implication of the images being found in temporary internet folders because that undermined the prosecution case. No authority on the point was cited. A standard treatise opines that when the CPS are involved, if the police are still to be regarded as prosecutor proof of the absence of reasonable and probable cause may be exceptionally difficult when the evidence has been reviewed by CPS lawyers. Effectively, it continues, the claimant will normally need to establish that the information supplied to the CPS was a tissue of lies: Clerk & Lindsell on Torts, 19th Ed, 2006, 993. 50. In my view Mr Thomas is correct in his submissions. The police may still be regarded as prosecuting an offence for the purposes of tort liability even if, after charge, they transfer the prosecution to an independent prosecutor, or even if it is the prosecutor who lays the charges. That is because the independent prosecutor is reliant on the police for the collection of the evidence which grounds the charge. If the police fail to forward evidence to the independent prosecutor then he or she may well charge incorrectly, or may continue with a prosecution which has subsequently become baseless. None of this turns on whether what the police have told the independent prosecutor is a tissue of lies; the police are potentially liable for failure to forward information if this is instrumental in a prosecution. The crucial issue is whether the conduct of the police, in terms of what they have done or failed to do in relation to the independent prosecutor, satisfies the components of the tort.”

[61]Such observations were obiter. They were not followed by Mitting J in Rees, who observed, at [154]:

“On one reading of what Cranston J said the police may be treated as a prosecutor if they fail to forward information to the CPS if it is instrumental in the prosecution. I doubt that Cranston J intended that that should be taken as his definitive analysis of the first element of the tort of malicious prosecution. If he did, I respectfully disagree with him, for the following reasons. First, no authority on the point was cited to him by either side. If the authorities cited above had been cited to him, he would surely have expressed himself more cautiously and confined his remark to situations in which the determinative facts were known only to the police – as was, in fact the case, as McKay J found (on the re-trial in Clifford). Secondly, it cannot be that the police become a prosecutor of a case when the charge has been laid by, or on the decision of, the CPS, merely because after charge they fail to forward some non-trivial information to the CPS relevant to the prosecution. I accept that a prosecutor who continues a prosecution after he knows that it has become baseless may be liable for the tort of malicious prosecution from that point on; and that it is arguable that a police officer, responsible for the investigation which has given rise to the charge, may be treated as a prosecutor if he deliberately suppresses information which would reveal to the CPS that the prosecution had become baseless. If and when such a situation arises, it would fall for decision. On the true facts in Clifford it did not. It does not arise in this case, because, despite the deliberate suppression by Cook of facts relevant to Eaton’s evidence, that did not render the prosecution against any claimant other than Fillery baseless.”

THE DEFENDANTS’ APPLICATIONS

[62]Each defendant seeks to strike out Mr Coghlan’s claim pursuant to each of the limbs of r.3.4(2). Alternatively, the defendants seek summary judgment.

[63]Cheshire Police relies on the evidence of Sarah Phillips, a solicitor within the force’s Legal Services Department. She briefly identifies the arguments, and adds that Mr Coghlan was prosecuted by the CPS and not Cheshire Police.

[64]Greater Manchester Police relies on the witness statement of Catherine Shackleton, a solicitor within its Legal Services Department. She makes the point that Mr Akinyemi’s death happened within the area policed by the Cheshire force. Further, Mr Coghlan was investigated, arrested, detained and charged by Cheshire Police. She adds that Greater Manchester Police was not involved in his prosecution and was not “the prosecutor.”

[65]The NCA relies on the witness statement of Martin Forshaw, a partner of Weightmans LLP who act for the agency. He confirmed, at para. 5 of his statement, that the coroner had gone to exhaustive lengths to ensure that all relevant information was obtained during the inquest. He added that this included the unusual step of the coroner attending at the defendants’ offices in order personally to review material generated during Operation Confection.

[66]Mr Forshaw asserts that the murder case was investigated by Cheshire Police and that the NCA’s only involvement was to pass the surveillance evidence from Operation Confection to Cheshire. He complains that the pleader has made no attempt to explain how the officers of the NCA are said to have committed acts or omissions in respect of Mr Coghlan’s arrest, charge, remand or prosecution. Mr Forshaw also put in evidence a statement by Gregory McKenna of the agency that was prepared for the purposes of the inquest and which set out the extent of the evidence that the NCA had that might be relevant to the circumstances of Mr Akinyemi’s death.

[67]Much of Mr Coghlan’s statement in reply, made on 13 December 2017, is devoted to explaining the extraordinary background to this matter:67.1 Mr Coghlan explains the collapse of the Barnshaw murder case. He exhibits to his statement the ruling of Penry-Davey J given on 16 June 2003 when the judge stayed the indictment against him. The judge found an appalling and sustained failure to give proper disclosure in that case and made serious findings against senior officers within Greater Manchester Police. Specifically, the judge found that one Detective Inspector had either not told him the truth or had been grossly negligent in failing to ensure that critical information was passed on to the investigation team while a second Detective Inspector had lied to the court. Further he found that a Detective Chief Inspector had removed evidence and lied about his own conduct.

67.2 Mr Coghlan then explains that he had been stabbed on 1 January 2008 after an incident in Cobden’s wine bar. He claims not to have known who had stabbed him, but says that CCTV disclosed in the inquest later showed that his assailant had been a friend of Mr Akinyemi. He complains that Greater Manchester Police did not arrest or charge Akinyemi either for this assault or a litany of other offences, including the knifepoint rape of a woman days before Mr Akinyemi’s death.

67.3 Mr Coghlan also complains about a case in which he had been prosecuted for assaulting two police officers. He says that the officers approached him in plain clothes and, given that he had justifiable fears for his own safety, he feared that he was in imminent danger. He says that Greater Manchester Police manipulated evidence and that the assault case had been contaminated by the involvement of a key officer from the failed Barnshaw prosecution.

67.4 Mr Coghlan also gives evidence as to the collapse of the drugs case arising out of Operation Confection. Again, he identifies serious failings of disclosure. He describes the prosecution of his partner, Claire Burgoyne, for alleged offences of conspiring to pervert the course of justice. Yet again, the case collapsed because of failures to give proper disclosure.

[68]Turning to the Akinyemi case, Mr Coghlan says that the court can have no confidence in the disclosure process. He complains that he was accused of murder “where the prosecuting authorities knew I was innocent.” He then identifies further disclosure that he says has still not been given in respect of the Akinyemi case.

[69]Finally, Mr Coghlan refers to his concerns about the way in which DS McKenzie had completed form MG6 on 2 March 2010 and the fact that he then appeared to have further evidence about the blood found on the knife than that recorded by Anna Ellison, the forensic scientist, in her e-mail of 18 February 2010. Looking at the extract from the form MG6 exhibited to Mr Coghlan’s statement, I note that it was date stamped “DRAFT CPS 02/03/10.” It therefore appears that the police passed on to the CPS on or about 2 March 2010 the scientist’s finding that the major DNA profile on the knife was that of Coghlan but that there was also a trace amount of DNA matching Mr Akinyemi’s profile.

[70]The decision to charge Mr Coghlan with murder was taken by Ian Davies, a CPS caseworker on 13 February 2010. His reasons were recorded on the form MG3. He wrote:

“I am satisfied that it is appropriate to apply the Threshold Test because there is at least a reasonable suspicion on the available evidence that Coghlan has committed the offence of murder and that there is a realistic likelihood of further evidence being obtained within a reasonable time in order to meet the Full Code Test and that the public interest test is satisfied on a charge involving the death of another person. I am satisfied that although the police investigation is still at an early stage Cheshire Constabulary are undertaking their enquiries in a diligent and expeditious manner. In this case Coghlan would be kept in custody to appear at court by virtue of (statutory provisions restricting the availability of bail in murder cases).”

[71]The Threshold Test referred to is that set out in the Code for Crown Prosecutors. Paragraph 5.2 of the Code provides that prosecutors must determine whether the following conditions are met before applying the test:

“1. there is insufficient evidence currently available to apply the evidential stage of the Full Code Test; and 2. there are reasonable grounds for believing that further evidence will become available within a reasonable period; and 3. the seriousness or the circumstances of the case justifies the making of an immediate charging decision; and 4. there are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and in all the circumstances of the case it is proper to do so.”

[72]There are two parts to the evidential consideration:72.1 First, the prosecutor must be satisfied that there is “at least a reasonable suspicion that the person to be charged has committed the offence.” In determining this issue, the prosecutor must consider relevant admissible evidence in the case. [See paras 5.5-5.6 of the Code.]

72.2 Secondly, the prosecutor must be satisfied that there are “reasonable grounds for believing that the continuing investigation will provide further evidence, within a reasonable period of time, so that all the evidence together is capable of establishing a realistic prospect of conviction in accordance with the Full Code Test.” [See paras 5.8-5.10 of the Code.]

[73]Further, prosecutors must consider whether prosecution would be in the public interest.

[74]In reaching these conclusions, Mr Davies confirmed that he had considered the statements of the first police officers and paramedics to attend the scene, a scene examination report, preliminary forensic evidence, Mr Coghlan’s prepared statement and police interview, photographs of Mr Coghlan’s injuries, police notebook entries and the previous convictions of both Mr Coghlan and Mr Akinyemi.

[75]Mr Davies had also been provided with a statement from Phillip Atkinson that spoke in “glowing terms” of Mr Coghlan and rather more negatively of Mr Akinyemi. Mr Davies recorded:

“Both Coghlan and Akinyemi are known to each other and there has (sic) been incidents between the men, AKINYEMI was arrested in (sic) after an incident during early hours of 1.1.2008 at the Cobden’s nightclub, Stockport when a number of males involved in verbal altercation with Coghlan who was stabbed with a knife receiving 9 stab wounds and a broken wrist. Akinyemi never charged.”

[76]Mr Davies then analysed the matter:

“I have considered the accounts provided by Coghlan to the police officers and paramedic staff at scene and to other officers during his detention and in the prepared statement. It is apparent that upon any consideration of the circumstances as outlined by Coghlan he would suggest that he was the subject of a sustained and brutal attack with Akinyemi intending to kill him. However, paramedic Ferns was not concerned about the neck injury which had stopped bleeding and did not cause her too much concern. A small wound to the hand did not require treatment and a minor injury to the abdomen described as a tiny penetration wound to the sternum. Therefore, the initial medical assessment of Coghlan does not appear consistent with the violent attack described by him. Conversely, Akinyemi has been shot a number of times with 2 bullets lodging in his bullet-proof jacket and one shot killing him via a head wound. A further bullet was also discharged. The scene examination indicates that the shots, and especially the lethal shot, must have been discharged in the bathroom because of the consequential damage to tiling and the blood distribution. Claire Lowrie concludes that there was nothing in the blood distribution in the bathroom or elsewhere in the areas of the house which were examined to indicate that Arran COGHLAN had been involved in a violent struggle whilst bleeding freely. The police theory in respect of the injuries sustained by Coghlan are (sic) that there is a potential for them to have been self-inflicted post the killing of Akinyemi. Coghlan has never indicated that he was in possession of the firearm during the struggle and would suggest that he was repeatedly stabbed during the struggle by Akinyemi who was also in possession of the gun. I have already commented upon the disparity of the injuries sustained by the respective men involved in this incident. Coghlan has never explained how, if Akinyemi was in possession of the gun, did the gun ultimately end up downstairs when it is clear that the shots were fired upstairs in the bathroom. I have concluded that on the evidence presently available to me that I am satisfied that there is sufficient evidence to charge Coghlan applying the Threshold Test and it is in the public interest to proceed to charge at this time.”

[77]After confirming the charging decision, Mr Davies recorded the evidential criteria for his decision. His account summarised the evidence then available and carefully recorded Mr Coghlan’s consistent claims that Mr Akinyemi had threatened him with a gun and then stabbed him, and that he had acted in self-defence. The account quoted Mr Coghlan’s concern that he had been arrested and his questions of the police inspector:

“Look it is simple. How many times do you need to get stabbed before you retaliate?” “Do you have an answer for me Inspector? How many times is it? In the arm or in the neck?”

ARGUMENTS

[78]Mr Johnson QC argued that while the police investigate allegations of criminal conduct, charging decisions are made by the independent CPS. Accordingly, in law the prosecutor was the CPS and not Cheshire Police. Thus, he submits, the claim is bound to fail at the first hurdle.

[79]Mr Johnson argued that the authorities show that the police should only be regarded as the prosecutor in narrow circumstances and that this case was distinguishable from the sexual complaint cases such as Martin v Watson. He particularly relied on Rees, observing that despite the serious findings against the police officer that tainted key evidence, the judge still held that, on the authorities, the police were not to be regarded as the prosecutor.

[80]Miss Barton QC, leading counsel for Greater Manchester Police, pithily submitted that there was no evidence that Mr Coghlan had been prosecuted by her clients. Likewise, Mr Fortt, counsel for the NCA, argued that Mr Coghlan had failed to demonstrate any basis for asserting that he had been prosecuted by the agency.

[81]Mr Heywood QC invited me to step back and consider the wider picture, particularly the involvement of the Second and Third Defendants in surveillance of Mr Coghlan and the co-operation between all three defendants. He urged the court not to consider Mr Akinyemi’s death in isolation, but against the picture of that surveillance.

[82]He criticised the charging decision and argued that while the prosecution had been carried forward by the Cheshire Police submitting a file to the CPS, the roots of the matter went back many months. He submitted that the murder case fell to be decided on evidence within the province of the police.

[83]Mr Heywood QC submitted that the charging decision had been influenced by the material put forward by the police. Specifically, he criticised the police for failing to put forward evidence of the recent rape or the surveillance under Operation Confection.

[84]Mr Snell, junior counsel for Mr Coghlan, followed on some more detailed pleading points. He particularly submitted that if the pleadings were defective, the court should allow the Claimant an opportunity to amend rather than strike out the claim. DISCUSSION

[85]I am of course conscious of the fact that I am being asked to determine this case summarily. McCowan LJ cautioned in Moon (at the foot of page 10 of the transcript), by reference to Lord Keith’s review of the New Zealand jurisprudence on this issue, that the “(close) analysis of the particular circumstances” of a case meant that, at least cases such as Moon, were not appropriate cases for a striking-out application.

[86]In Ministry of

Justice v Scott, Longmore LJ observed, at [47]:

“The law in relation to the question whether a defendant in a civil action is rightly to be regarded as ‘the prosecutor’ in criminal proceedings which have failed is in danger of becoming a little over-complicated. It is usually impossible to decide any issue about the bad faith elements of malicious prosecution in summary proceedings (whether on a strike-out application or an application for summary judgment). But it may well be appropriate summarily to decide the more modest question whether the circumstances of the case are such as to enable the professional prosecutor (usually the CPS) to exercise an independent judgment in the matter. If it is plain that the circumstances are such as to enable the prosecutor to exercise an independent judgment, then a claim for malicious prosecution should not usually go to trial.”

[87]In my judgment, there could be no question of the court engaging in a summary trial upon the papers of questions of malice. It has not, however, been suggested that I should not consider the narrower question of whether Mr Coghlan was prosecuted by any of the defendants. STRIKE OUT: NO REASONABLE GROUNDS

[88]The court may strike out Particulars of Claim pursuant to r.3.4(2)(a) if it appears that the pleading “discloses no reasonable grounds for bringing the claim.” The focus of the enquiry under r.3.4 is upon the pleading (per Clarke LJ in The Royal Brompton Hospital NHS Trust v Hammond [2001] 1 Lloyd’s Rep. PN 526, at [106]) and, accordingly, the court must assume the truth of the Claimant’s pleaded case. The court must be certain that the case is hopeless before it can be struck out.

[89]The Amended Particulars of Claim in this case appear to take as read that the First Defendant, as the police force with conduct of this murder investigation, was necessarily the prosecutor. This is simply wrong in law. As demonstrated above, the starting point is that the prosecutor was the CPS. Nevertheless, as the case law shows, there can be rare cases in which the investigating police force might be considered to be the true prosecutor. Accordingly, I am persuaded that I should not strike out the claim against Cheshire Police simply upon consideration of the pleadings.

[90]I turn then to the other defendants. The shooting did not happen in the Greater Manchester police area. Neither the Manchester force nor the NCA attended the crime scene, investigated the case, arrested Mr Coghlan, prepared a file for the CPS or charged Mr Coghlan. How then, is it said that they prosecuted Mr Coghlan?

[91]In my judgment, para. 12 of the Amended Particulars of Claim (set out at para. 25 above) is key to the case against these two defendants. However, even if the Claimant can establish at trial that the Greater Manchester Police and the NCA:91.1 conducted surveillance in respect of Mr Coghlan and/or Mr Akinyemi;

91.2 provided information and disclosure to Cheshire Police and/or the CPS; and

91.3 co-operated with and provided assistance to the investigation, it would not follow that either defendant would in law be regarded as having prosecuted Mr Coghlan.

[92]Accordingly, in my judgment, the Amended Particulars of Claim disclose no reasonable grounds for bringing claims of malicious prosecution against the Second and Third Defendants.

[93]In the event of such finding, Mr Snell urged me to allow the Claimant the opportunity to amend his claim. I certainly accept that where a pleading has some technical defect that can easily be cured by amendment, the court should allow amendment rather than take the Draconian step of striking out the defective pleading. Here, however, these strike-out applications have been on foot since the summer of 2017. There has been ample time to formulate an amendment. Indeed, Mr Coghlan has already proposed an amendment to his claim form but no attempt has been made to plead some alternative case as to how the Second and Third Defendants prosecuted him. The point is not just one of discipline; neither Mr Heywood QC nor Mr Snell was able to explain how Mr Coghlan might amend his case in order to overcome this defect. I am satisfied that the problem is fundamental, namely that there never was a proper basis for contending that the murder case was prosecuted by the Second and Third Defendants.

(a) SUMMARY JUDGMENT

[94]Rule 24.2 provides:

“The court may give summary judgment against a claimant … on the whole of a claim or on a particular issue if– (a) it considers that … that claimant has no real prospect of succeeding on the claim or issue; … and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”

[95]While applications to strike out under r.3.4(2)(a) and for summary judgment have in common the core assertion that the other party cannot succeed on its pleaded case, there is of course a difference in approach. Whereas the focus of the enquiry under r.3.4 is upon the pleading, Part 24 requires analysis of the evidence. That said, the court should be wary of any invitation to weigh competing evidence and make findings upon the papers. Summary judgment is only to be given in clear cases.

[96]I have considered two separate time periods. First, that up to the decision to charge Mr Coghlan on 13 February 2010 and, secondly, the period between charge and the collapse of the prosecution in July 2010. 9-13 February 2010

[97]Whatever surveillance had been conducted, there is no evidence that, at the outset of this investigation, Cheshire Police knew precisely what had happened inside Mr Coghlan’s home on 9 February 2010. As Mr Coghlan pleaded, the police had two working theories: one that Mr Coghlan had executed Mr Akinyemi, the other than Mr Akinyemi had been killed in lawful self-defence as Mr Coghlan fought off a violent assault. In my judgment, there can be no sensible argument against the proposition that Cheshire Police had a duty properly to investigate these matters and place the evidence before the CPS, rather than simply take Mr Coghlan’s claim at face value.

[98]The police investigation was principally dependent upon analysis of the crime scene, the nature and extent of Mr Coghlan’s injuries, Mr Coghlan’s account and forensic analysis of the gun, the knife and the bullet cartridge. Accordingly, Cheshire Police could not know the truth of this matter without proper investigation. In my judgment, Cheshire Police was not therefore in the position of the complainant in the indecent assault case of Martin v Watson who inevitably knew the truth of her allegation, or the council official in Moon v Kent County Council upon whom the police relied, or indeed the five prison officers in Ministry of Justice v Scott who knew the truth of their allegations against Mr Scott.

[99]Rather, this is a case in which the police had to investigate the circumstances of this shooting and place the results of their investigation before the CPS. That is what happened and, as already recounted, the charging decision was made by Mr Davies of the CPS. I have considered his reasoning with some care. On its face, it is the careful analysis of an independent prosecutor.

[100]Irrespective of whether the charging decision was flawed, there is no plea that the police falsely represented or withheld key evidence from the CPS such as to undermine Mr Davies’ decision. In his oral submissions, Mr Heywood QC criticised the failure of the police to mention Operation Confection or Mr Akinyemi’s alleged recent commission of a knifepoint rape. He submitted that this was to present a knowingly one-sided view of the case and to treat Operation Aspic as a stand-alone murder investigation.

[101]I do not follow these criticisms:101.1 Mr Davies plainly knew that there was a history between Akinyemi and Coghlan since he recorded the fact together with Mr Akinyemi’s suspected involvement in the January 2008 stabbing of Mr Coghlan.

101.2 Mr Davies considered the actual convictions of both Akinyemi and Coghlan, and not material as to the far more serious but unproven suspicions against both men.

101.3 Liaison with Greater Manchester Police and the NCA as to any relevant evidence from Operation Confection was important, but the core focus of the charging decision was rightly upon the evidence of the witnesses who attended this shooting, Cheshire Police’s own investigation of the crime scene, Mr Coghlan’s injuries and his account to police.

101.4 It is in any event clear from the Claimant’s own pleaded case that the CPS was receiving intelligence from Operation Confection directly from the Greater Manchester Police and the NCA by at least 3 March 2010.

[102]Even if it is established at trial that Cheshire Police wrongly withheld Operation Confection and the rape allegation from the CPS, I am satisfied that there is no real prospect of Mr Coghlan’s establishing that such default meant that Mr Davies’ charging decision was not the independent decision of a professional prosecutor. Specifically, there is no real prospect of his proving that any such default made it impossible, or virtually impossible, for Mr Davies to make such independent decision. Whether Rees (which is subject to appeal) was correctly decided, this case falls a long way short of the position where the evidence of an important witness was contaminated by a senior police officer and such contamination was deliberately withheld from the CPS. 13 February to 29 July 2010

[103]I turn then to Mr Coghlan’s secondary case, pleaded at para. 18(e) of the Amended Particulars of Claim, that the point was reached when “the Defendants knew, or ought upon proper investigation and analysis, to have known that there was no longer reasonable and probable cause to continue to detain and prosecute the Claimant.” As already indicated, Mr Coghlan then relies on the emerging picture from forensic investigation of the knife, the gun and a bullet cartridge.

[104]Like Mitting J, I treat the obiter observations of Cranston J in Clifford (set out at para. 60 above) with some caution. I accept Mitting J’s conclusion (itself obiter) in Rees that it is at least arguable that a police officer responsible for a criminal investigation might be treated as a prosecutor if he deliberately suppresses information that would reveal to the CPS that the prosecution had become baseless. But here there is not only no such evidence; such deliberate suppression is not even pleaded. On the contrary, as already noted, it appears that the police passed on to the CPS on or about 2 March 2010 the scientist’s finding that the major DNA profile on the knife was that of Coghlan but that there was also a trace amount of DNA matching Mr Akinyemi’s profile.

[105]Although not argued before me, I should add that the agreed chronology records that Dr Holden’s evidence as to the paint found on the knife was sent to Cheshire Police on 22 July 2010 but not forwarded to the CPS until 27 July 2010. The position is not quite so straightforward since the chronology records some dispute as to the precise date when the police received the report. I am prepared to assume for current purposes that there might have been some slight delay by the police in sending Dr Holden’s important evidence to the CPS. That is, however, neither pleaded nor argued to have been deliberate suppression.

[106]The pleaded case, at paras 20-21 of the Amended Particulars of Claim, is that the defendants “failed to cause the prosecution to be dropped at an earlier stage” or that they failed to make or heed all reasonable enquiries within a reasonable period of time. In my judgment, such allegations that the defendants failed to act proactively by intervening to cause the CPS to drop the case at an earlier stage fall far short of that required in law to render the investigating police officers the true prosecutor.

[107]In his submissions, Mr Heywood QC invited me to stand back and consider the overall picture. Doing so, I find that there is nothing surprising about the actions of Cheshire Police in determining that it should investigate the shooting of Mr Akinyemi, or its decision that Mr Coghlan should be arrested as a suspect in order to effect a prompt and effective investigation. I cannot see anything in the papers to indicate that the police concealed or misrepresented material evidence when presenting the file to the CPS for a charging decision. Equally, I am not surprised that the CPS lawyer concluded that Mr Coghlan should be charged with murder upon a proper application of the Threshold Test and pending further forensic investigation. The fact that such further investigation caused the CPS to review the case and conclude that the prosecution could not be pursued does not, of itself, mean that Mr Coghlan was wrongfully arrested, falsely imprisoned or maliciously prosecuted. But, even if – which seems unlikely on the material before me – Mr Coghlan could show that the CPS had maliciously prosecuted him, there is no evidence before me to indicate that this is one of those rare cases in which the professional prosecutor was unable to exercise its own independent judgment such that the true prosecutor was one of these defendants, whether acting alone, together or with the CPS.

[108]For these reasons, I conclude that Mr Coghlan has no real prospect of establishing that any of the defendants were in law his prosecutor.

[109]Given the troubling history of disclosure problems, the serious findings against Greater Manchester Police in an earlier murder trial and the allegation against the NCA pleaded at para. 2(g) of the Amended Particulars of Claim, I have considered whether this might be one of those unusual cases in which there might nevertheless be a compelling reason to allow the case to proceed to trial. I take the point briefly since Messrs Heywood QC and Snell did not argue such fall-back position. I consider that this case should not be allowed to proceed to trial in the absence of a real prospect of success:109.1 First, the circumstances of Mr Akinyemi’s death and the surveillance conducted by both the police and the NCA have already been thoroughly considered in a public forum by the coroner.

109.2 Secondly, one must be careful not to hold the past proven defaults of the Manchester force or the NCA against Cheshire Police.

109.3 Thirdly, the focus upon Cheshire Police’s investigation into the death of Mr Akinyemi rather than upon the history of other failed prosecutions and surveillance was, in my judgment, appropriate.

[110]I therefore give summary judgment in favour of the First Defendant. If I am wrong to strike out the claims against the Second and Third Defendants, then I would in any event have given summary judgment in their favour. OTHER GROUNDS FOR STRIKE-OUT

[111]With varying degrees of enthusiasm, the defendants also contended that the claim should be struck out:111.1 as an abuse for failing properly to plead the claim in malicious prosecution and for seeking damages by the Amended Particulars of Claim despite the claim form stating that the claim had no value and seeking only declaratory relief; and

111.2 for breach of r.16.4 in failing properly to plead the grounds on which Mr Coghlan seeks aggravated and exemplary damages.

[112]In view of my conclusions as to the principal grounds, it is unnecessary for me to deal with these additional arguments. If, however, there had otherwise been good claims for malicious prosecution against any of these defendants, I would have acceded to Mr Snell’s submissions that, notwithstanding the Claimant’s failure to remedy these matters over the six months before the hearing, striking out would have been a disproportionate response. OUTCOME

[113]I therefore dismiss this claim against all three defendants:113.1 I strike out the Amended Particulars of Claim against the Second and Third Defendants pursuant to r.3.4(2)(a) for failing to disclose reasonable grounds for bringing the claim against such defendants.

113.2 Further, the Claimant has no real prospect of succeeding upon his claim against any of the defendants and there is no other compelling reason why the case should be disposed of at trial.

[114]Mr Fortt goes further and invites me to certify, pursuant to r.3.4(6), that the claim against the NCA was totally without merit. I remind myself that the test is whether the claim was “bound to fail”: R (Grace) v Secretary of State for the Home Department

[2014] EWCA Civ 1091

, [2014] 1 W.L.R. 342. It might be thought that where a case is struck out for failing to disclose reasonable grounds for bringing the claim, the court would necessarily find it to be totally without merit. Judges should, however, be careful not to label an unsuccessful but arguable claim as being totally without merit: R (Wasif) v Secretary of State for the Home Department

[2016] EWCA Civ 82

, especially at [15]-[17].

[115]In my judgment, Mr Coghlan’s legal team failed to put forward any rational argument as to why the NCA should be regarded in law as having prosecuted this murder charge. Accordingly, I find that the claim against the Third Defendant was totally without merit.

[116]Rule 3.4(6) therefore requires me to consider whether I should make a civil restraint order. Of course, such an order only falls to be made where a litigant persists in making claims or applications that are totally without merit. Here, Mr Fortt tells me that the NCA is aware of one other case in which a judge has found a claim or application made by Mr Coghlan to have been totally without merit. The NCA does not, however, put details of that case before me and does not invite me to make a civil restraint order. Accordingly, I simply record my finding that Mr Coghlan’s claim in this case against the NCA was totally without merit pursuant to r.3.4(6)(a).