Two bites of the apple- limitation in professional negligence cases
The Magna Carta reaches its 800th birthday this year. Multiple celebrations are planned for this milestone including a march by Justice Alliance which took place on 23 February to celebrate the rights enshrined in the Magna Carta including:
“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by lawful judgement of his equals or by the law of the land. To no one will we sell, to no one deny or delay right of justice.”
Justice Alliance is also keen to highlight those rights being eroded by cuts to the justice system. Delayed justice will be an evitable consequence of those cuts and was particularly pertinent in the case of Mr Sofian Zenati v The Commissioner of Police of the Metropolis, The Crown Prosecution Service ( EWCA Civ 80).
The background: Mr Zenati is a UK and Libyan national owning passports for both countries. On 7 December 2010 he was arrested in relation to a racially aggravated public order offence. Following his arrest, he produced his British passport. An officer trained in forgery detection considered that the passport was a counterfeit and as a result three days later Mr Zenati was charged with offences under the Identity Cards Act 2006 and remanded in custody. On the same day, the CPS put in a request to the police officer for a more comprehensive examination of Mr Zenati’s passport to the National Document Fraud Unit (“the NDFU”); it was requested that this be completed by 24 December. Unfortunately the request was not forwarded by the police officer until 31 December and the passport not delivered until 13 January 2011. On 19 January the police officer was told by the NDFU that the passport was in fact genuine.
At his PCMH on 4 February 2011 Mr Zenati pleaded not guilty to the passport offence. The CPS requested 28 days to obtain the necessary statement from the immigration authorities to confirm that the passport was a forgery. The judge allowed 14 days. The CPS said it would agree to grant Mr Zenati bail as long as he could provide a residential address acceptable to the police officer; Mr Zenati was unable to do this. At the PCMH there was no mention of the information which had been provided by the NDFU some 15 days prior. On the same day (but after the PCMH) the police told the CPS that the passport had been examined “some time ago” and was genuine.
On 9 February a bail hearing took place at the request of Mr Zenati’s solicitors, at which point the prosecution disclosed that the NDFU had confirmed the passport was genuine and Mr Zenati was granted bail. Mr Zenati ultimately pleaded to the public order offence and was fined.
Mr Zenati initially brought a claim for a judicial review however permission was refused and the claim was sent to the county court as a claim for false imprisonment and breach of Article 5. Both these claims were dismissed. Mr Zenati took the matter to the Court of Appeal which allowed the appeal in respect of the article 5 claims however it dismissed the claims in relation of false imprisonment.
Mr Zenati’s claims were that his detention from 19 January 2011 until his release on 9 February 2011 was in breach of article 5(1)(c) and his detention from 10 December 2010 to 9 February 2011 was unreasonably long and in breach of article 5(3) – the police and the CPS failed to act with “special diligence” in investigating the alleged offence. Secondly he argued that the police and the CPS are liable in the tort of false imprisonment for his detention from 19 January 2011 until 9 February 2011.
On the article 5(1)(c) claim the Court of Appeal concluded on the facts of the case there is arguably a case. It was stated that the earliest time when the police ceased to have reasonable suspicion of the offence was on 19 January 2011 when the police officer received information from the NDFU that the passport was genuine. By failing to inform the CPS (and therefore the court) as soon as possible after 19 January 2011 of this information, the police caused a breach of article 5(1)(c).
On the article 5(3) claim the Court of Appeal said it was arguable that the police are liable for breach of article 5(3) in respect of the detention shortly after 19 January and 9 February because the police were responsible for the failure of the court to conduct the proceedings with “special diligence” during this period. Lord Justice Lewison, Master of the Rolls, accepted that whilst the period between 10 December and 4 February was 8 weeks and was a short period of time when compared to other similar cases, it was a long period in the context of this straightforward case.
The Article 5 claim was reinstated and remitted to the county court for determination – this is yet to be heard.
What is of concern is that delays such as this will continue as public bodies’ budgets are squeezed. Equally worrying is that challenges to such injustices will be left to lawyers, who will receive little remuneration, or those privileged enough to fund their battles privately.
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