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You are here: BAILII=20 >> Databases=20 >> England and=20 Wales Court of Appeal (Civil Division) Decisions >> = Smart v The=20 Forensic Science Service Ltd [2013] EWCA Civ 783 (02 July 2013) =
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Cite as:=20 [2013] EWCA Civ 783

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Neutral Citation Number: [2013] EWCA = Civ=20 783
Case No:=20 B2/2012/2933

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM = LIVERPOOL=20 COUNTY COURT
His Honour Judge Wood QC
OLV 20334

Royal Courts of = Justice
Strand,=20 London, WC2A 2LL
02/07/2013

B e f o r e :

LORD JUSTICE MOSES
LORD JUSTICE RIMER
and
LORD = JUSTICE=20 AIKENS
____________________

Between:
Thomas James = Smart
 Appellant
- and -
The Forensic Science Service=20 Limited
 Respondent

____________________

(Transcript of the Handed Down Judgment = of
WordWave=20 International Limited
A Merrill Communications Company
165 Fleet = Street,=20 London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 = 8838
Official=20 Shorthand Writers to the Court) =

____________________

Mr Pete Weatherby QC (instructed by Broudie Jackson Canter) = for the=20 Appellant
Mr Daniel Squires (instructed by The Treasury Solicitors) = for the=20 Respondent
Hearing dates: 10th-11th April and 5th June 2013=20
____________________

HTML VERSION OF = JUDGMENT
____________________

Crown Copyright =A9

    Lord Justice Moses:

  1. The appellant, Thomas Smart, appeals = against the=20 order of His Honour Judge Wood QC on 18 May 2012. HHJ Wood QC struck = out the=20 appellant's claim for negligence and breach of the Human Rights Act = 1998. For=20 the purposes of striking out the appellant's claim, certain factual=20 allegations contained in the particulars of claim of 10 March 2010 = must be=20 assumed.

  2. On 9 January 2008 police searched the = claimant's=20 home at 100 East Lancashire Road, Liverpool L11, for drugs, which they = believed had been kept there by the claimant's brother. During the = search they=20 found what appeared to be a live bullet and arrested the appellant on=20 suspicion of possession of live ammunition pursuant to s.1(1) of the = Firearms=20 Act 1968.

  3. The appellant told the police in = interview that he=20 had bought the bullet as an ornament at a car boot sale and had = assumed that=20 it was not live. Whether it was a live bullet or not could not be = discerned=20 from visual examination and the police, having charged the appellant, = sought=20 to make good their case by sending what appeared to be a live bullet = to the=20 defendant for scientific analysis. The defendant was a company, all of = whose=20 shares were held by the state.

  4. On 30 May 2008 a forensic scientist = employed by the=20 defendant, Philip Rydeard, produced a witness statement pursuant to = s.9 of the=20 Criminal Justice Act 1967. The witness statement gave a laboratory = reference=20 and described the "receipt of items". It read:-

    "Laboratory records show that on 19 February 2008 the = following=20 item was received at the Northern Firearms Unit from the Merseyside=20 Police:
    PG1 cartridge =96 100 East Lancashire Road,=20 L9."

    The expert described the item as a bulleted cartridge. He = dismantled the=20 cartridge and found it contained the required components of ammunition = designed for use in self-loading pistols and sub-machine guns. He = classified=20 the cartridge PG1 as ammunition for the purposes of s.57(2) of the = 1968=20 Act.

  5. The appellant was then charged and = pleaded guilty,=20 since s.1(1) of the 1968 Act is an offence of strict liability. He was = sentenced to four months' imprisonment, suspended, with a requirement = to=20 undertake 180 hours of unpaid work.

  6. On 23 January 2009 the Merseyside Crown = Prosecution=20 Service told the claimant's solicitors that, following an internal = review=20 carried out by the Forensic Science Service, the item recovered from = the=20 appellant was not in fact ammunition. The letter made the suggestion = that the=20 appellant should invite the Magistrates' Court to re-list the case = pursuant to=20 the provisions of s.142 of the Magistrates' Court Act 1980 with a view = to the=20 conviction and sentence being set aside. It said the Crown Prosecution = Service=20 would support that application and offer no evidence. It concluded:- =

    "As I am sure you will appreciate, the proceedings were = brought=20 against your client in good faith, based upon the evidence presented = to the=20 Crown Prosecution Service by the Forensic Science = Service."
  7. The letter dated 23 January 2009 = enclosed a letter=20 from the Forensic Science Service dated 9 January 2009. The relevant = parts of=20 the letter dated 9 January 2009 signed by the General Manager of the = Forensic=20 Science Service read:-

    "I would like to inform you of a quality issue that has = arisen=20 at the NFU with regard to two Merseyside cases which require the=20 classification of ammunition.
    On 19 February 2008 two cases, each comprising a single = round of=20 ammunition, were received at the Northern Firearms Unit (NFU) from=20 Merseyside Police. One case was assigned FSS laboratory reference = number=20 (300735613 [40104862]) and the other (300735611 = [40104860]).
    300735611  
    Division Lower Lane Police Station, = Liverpool North=20 Area E
    Officer in case Constable 8975 = Mahoney
    Number of items = received: 1
    Details re items: PG1, labelled as '1 x bullet = inside blue=20 wash bag'
    Requirement: Classification of = bullet
    Suspect: Thomas Smart, DOB = 28/08/1987
    Other: URN number =96 05E60221908; date = of offence=20 09/01/08; drugs related; suspect said he bought as an ornament = from a=20 car boot sale
    300735613  
    Division: Admiral Street, Liverpool South = Area=20 F
    Officer in case: DC 2153 Smith
    Number of items = received:|1  
    Details re items: PR1, labelled as '1 = bullet'
    Requirement: Classification of=20 bullet

    On 28th March 2008 the OIC for 300735611 = (bullet in=20 blue wash bag) contacted NFU to check on the progress of case. The = officer=20 was informed that the case had not been started and the delivery = date would=20 be the 19 May 2008. The officer said he would call at the end of = April for=20 an update. On 30th May 2008 the OIC contacted NFU = regarding the=20 status of 300735611 and it was agreed that the case would be = progressed that=20 day.
    On 30th May 2008 the case was allocated to a=20 Reporting Officer who carried out an examination of an item which = was=20 believed to be the exhibit relevant to that case and a report was = prepared,=20 posted and faxed to the OIC.
    The conclusion was that the cartridge constitutes = ammunition=20 as defined in section 57 (2) of the Firearms Act 1968 and is subject = to the=20 provisions of Section 1 of this Act.
    However, the item reported under laboratory reference = 300735611,=20 was an exhibit bearing the affidavit PR1 and assigned the laboratory = reference number 300735613. This exhibit relates to the other case = from=20 Merseyside received at the NFU the same day and not case reference = number=20 300735611.
    When the correct item PG1 from laboratory reference = 300735611=20 was examined on 8th January 2009, it was found to be a = dummy=20 round.
    I would like to offer my sincere apologies for this = quality=20 failure and assure you that a full and thorough internal = investigation is=20 currently underway. The Forensic Science Service appreciates that = this=20 failure has taken some time to come to light and that there is the = potential=20 for a miscarriage of justice to have occurred. It is for this reason = that=20 despite our internal investigations being at any (sic) early = stage=20 that we considered it appropriate to bring this matter to your = immediate=20 attention."
  8. On 6 February 2009, as suggested by the = Crown=20 Prosecution Service, an application was made to the Magistrates' Court = pursuant to s.142 of the Magistrates' Court Act 1980, the plea was = vacated,=20 the CPS offered no evidence, and the charge was dismissed. This had = the=20 unfortunate effect, not realised at the time, that this appellant fell = outwith=20 the statutory scheme for compensation (see s. 133(1) and (5) Criminal = Justice=20 Act 1998). Neither side advanced any submission before us that the = statutory=20 scheme was relevant to the issues of immunity. Proceedings were then = launched=20 in the Liverpool County Court with the particulars of claim dated 10 = March=20 2010. At that stage, there was no further information as to how a = bullet had=20 been wrongly attributed to the claimant. The claim merely referred to = the=20 letter from the Crown Prosecution Service dated 23 January 2009 as = indicating=20 "that there had been a mix-up of exhibits between two unconnected = cases=85". The=20 claim alleged negligence:-

    "8. The defendant owed the claimant a duty to operate = proper=20 systems to ensure that the continuity of exhibits was secure, and = that=20 expert reports actually related to the exhibits referred to in those = reports. The defendant knew that the claimant had admitted = possession of the=20 said bullet, and that errors in continuity could lead to = miscarriages as=20 occurred in the instant case, and dire consequences such as damage = to=20 reputation and loss or restriction of liberty.
    9. The actions and omissions of the defendant breached the = aforesaid duty. Particulars of negligence:
    (a) The defendant failed to maintain a proper system to = ensure=20 the continuity and integrity of = exhibits.
    (b) The defendant failed to ensure that the bullet = seized from=20 the claimant's home was the same exhibit as was examined by Mr = Rydeard and=20 referred to his report under the same exhibit=20 reference."

    The particulars of claim also alleged that the defendant had = violated the=20 appellant's Article 8 rights.

  9. The defence dated 2 July 2010 admitted = the alleged=20 "mix-up" but denied that the Forensic Science Service Limited owed any = duty of=20 care, and asserted that Mr Rydeard, an employee of the respondent, was = immune=20 from civil proceedings as a witness, and that no duty of care was owed = to=20 suspects or witnesses by the police in relation to the investigation = of crime=20 or third parties employed to assist the police. It also denied that = the=20 defendant was a public authority "within the meaning of s.6(1) of the = Human=20 Rights Act 1998".

  10. On 10 December 2010 the defendant = applied to=20 strike out the claim and on 19 January 2011 to stay the proceedings, = pending=20 the hearing of the strike-out application.

  11. The judge, in a full judgment dated 12 = February=20 2012, held that the respondent was protected by witness immunity which = covered=20 both the negligence and the claims pursuant to the Human Rights Act = 1998, that=20 the respondent owed the appellant no duty of care and was not a public = authority for the purposes of the Human Rights Act. The appellant then = appealed.

  12. By the time the judge heard the = respondent's=20 application to strike out the appellant's claim, further documents had = been=20 disclosed on 3 March 2011. These showed that the original draft = statement of=20 Philip Rydeard gave the same laboratory reference number, 300735611, = as the=20 statement which was subsequently served but where the served statement = refers=20 to PG1 cartridge, the draft refers to the PR1 cartridge and, although = it is=20 difficult to see, someone has written in hand the exhibit number PG1 = above the=20 typed exhibit number PR1. Where the typed address reads 100 East = Lancashire=20 Road, L19, beneath the postcode L19, someone has written in hand the = code L9.=20 No explanation for the difference between the draft statement and the = final=20 statement has ever been forthcoming.

  13. A packaging sheet under the box = showing item=20 number seems to show an exhibit number overwritten by PG1, crossed = out, and=20 then the exhibit number PR1 underneath. An ammunition examination = sheet seems=20 again to show PG1 overwritten, crossed out, and the exhibit number PR1 = written=20 underneath.

  14. The only explanation for these = handwritten=20 alterations is contained in a document dated 14 January 2009 which is = headed=20 "Investigation into P1 NFU action =96 Reference CO1911", and under the = heading=20 "Casefile 300735611:-

    "1. Movement of items on back of casefile is not fully=20 documented. There is no exhibit reference number present and also no = year=20 present in the date column. It is common practice to write "all" = under the=20 item column.
    2. A photocopy of the exhibit bag was on file but this had = only=20 been added after the draft statement had been reviewed and is not = common=20 practice at the NFU.
    3. On the packaging sheet, TF1 128, the item number was=20 originally documented as PR1. This was overwritten as PG1 and then = crossed=20 out, PR1 was later written in red. On the ammunition examination = sheet, TF1=20 127, the exhibit was also originally documented as PR1, overwritten = as PG1=20 and then crossed out, PR1 was again later written in red. The = amendments=20 were not signed and dated.
    4. Draft statement refers to 'PR1. Cartridge =96 100, East = Lancashire Road, L19'. The file reviewer has put a question mark = next to=20 this information, written PG above PR1 and amended the postcode to = L9. This=20 doesn't correspond to the MGFSP, which describes the item as 'PG1, 1 = x=20 bullet inside blue wash bag, East Lancashire Road L9', nor to the = packaging=20 'PR1, 1 x Bullet.'
    5. The tag number referred to on the packaging sheet = (FA116551),=20 is different to the tag number on the MGFSP (FA15264).
    Interview with RO, Phil Rydeard
    The overwriting of exhibit numbers and the strikethrough=20 referred to in point 3 were carried out by the RO. He also amended = it to PR1=20 in red ink and further made a comment on the MGFSP 'PR1 on bag'. He = believed=20 this was done after the draft statement was reviewed.
    The RO believes he photocopied the exhibit packaging after = the=20 draft statement was reviewed in order to show the reviewer the item=20 reference number.
    The item was reported in the final statement as PG1, which = was=20 the correct exhibit reference relating to the case but this was not = the=20 reference of the item which was examined.
    RESTRICTED: Staff
    The file reviewer was offsite during the investigation = and=20 was therefore not available for questioning.
    Interview with SDTL, Ben Astley
    In August/early September 2008, Ben was conducting an = audit of=20 the stores in order to update the firearms register. He noticed that = the=20 item PG1 from 300735611 was present in the stores when the OMS = record=20 indicated that the item had been returned to the customer on = 27th=20 June 2008. He asked the CSD SDC to request the exhibit which had = been=20 returned under 300735611 back from the customer.
    On 23rd September 2008, the item previously = returned=20 to Merseyside under lab reference 300735611 was resubmitted in a = crate,=20 along with other items which were required for defence examination. = The=20 items relating to the defence exam were booked onto OMS and the = firearms=20 register updated accordingly. The item resubmitted under lab = reference=20 300735611 was not booked in and there is no electronic record for = the=20 resubmission of this item, therefore the SDTL was unaware that the = exhibit=20 had not been resubmitted.
    No follow up action was taken by the team leader to check = why=20 the genuine item relating to 300735611 was still in the = stores."
  15. Counsel instructed by the Treasury = Solicitor=20 frankly admitted that this provides no adequate explanation as to what = happened, still less why it happened.

  16. At this appeal the appellant = challenged all three=20 conclusions of the judge. But after one and a half days' argument, he = sought,=20 to some extent prompted by the court, to amend his particulars of = claim so as=20 to allege deceit. We were compelled to grant an adjournment so that = the=20 appellant could draft his proposed amendment and to afford the = respondent a=20 proper opportunity to make submissions about it. A further hearing was = arranged.

    17. The relevant parts of the proposed amendment read:-

    "6A Records relating to the bullet examined by Mr Rydeard = for=20 the purposes of preparing the aforesaid 30 May 2008 report had been = altered=20 by an employee, servant or agent of the defendant, or several of = them, to=20 incorrectly show that it was the dummy bullet seized from the = claimant's=20 home.
    =85
    10A The claimant was deceived by a misrepresentation of = fact=20 which appeared in the final version of Mr Rydeard's 30 May 2008 = report, that=20 the live bullet that formed the subject matter of the report was the = item=20 seized from the claimant's home. The claimant acted to his detriment = in=20 reliance on the misrepresentation.
    PARTICULARS OF DECEIT
    Mr Rydeard and /or an employee, servant or agent of the=20 defendant, or several of them:
    (a) Altered exhibit records relating to a live bullet, to=20 falsely represent that it was the dummy bullet seized from the = Claimant's=20 home.
    (b) Altered the exhibit reference in the final 30 May 2008 = report to show the reference of the dummy seized from the Claimant's = home,=20 PG1, instead of the reference of the actual bullet examined, PR1, = which=20 appeared in the draft report.
    (c) Knew that the representations were false, or were = recklessly=20 indifferent to their truth.
    (d) Knew or were recklessly indifferent to whether the=20 misrepresentations on the exhibit records would be repeated in the = 30 May=20 2008 report.
    (e) Intended or knew that the Claimant would act on the = findings=20 of the said report to his potential detriment.
    10B The Claimant did rely on the misrepresentations of = fact by=20 pleading guilty to the charge, and the said deceit thereby caused = the=20 Claimant loss, injury and damage.
    PARTICULARS OF INJURY AND DAMAGE
    (a) the particulars at paragraph 10 are = repeated."
  17. In its response to the proposed = amendment the=20 Forensic Science Service Limited accepts that it has not been able to = provide=20 a satisfactory explanation of how the report dated 30 May 2008 came to = state=20 incorrectly that the bullet found at the appellant's home contained = live=20 ammunition. It accepts that it cannot assert that the appellant has no = proper=20 basis for pleading deceit although it does not accept that the claim = is made=20 out in law or in fact. But it does contend that the proposed amendment = fundamentally alters the basis upon which the claim is brought. It = says that=20 the documents on which the deceit allegation is founded were disclosed = more=20 than two years ago, on 3 March 2011, and it is far too late to make = such an=20 amendment now. Further, it maintains its objection to the original = claim and=20 contends that even if the court allows this late amendment, the = allegations of=20 negligence and breach of the Human Rights Act, 1998 should remain = struck out=20 as the judge ordered.

  18. There was no dispute as to the = principles which=20 this court should apply in relation to late amendments. The court must = strike=20 the balance between the prejudice which will be caused to the = appellant if the=20 amendment is refused against the prejudice to the Forensic Science = Service=20 Limited. It may not be possible to compensate the resisting party by = an award=20 of costs. The later the application is made, the more difficult it = will be for=20 the applicant to establish that justice demands permission to make the = amendment. The court must also take into account the public interest = in the=20 efficient administration of justice which may be damaged by the = disruption and=20 delay caused by late amendments (see White Book at 17.3.7, = Worldwide=20 Corporation v GPT Limited [1998] EWCA Civ 189 (pages 11-13), = Swain=20 Mason v Mills & Reeve [2011]=20 1 WLR 2735 (paragraph 72) and the useful summary of Hamblen J in = Brown=20 v InnovatorOne [2011] EWHC 3221 [5]-[14]).

  19. It must be recalled that the = application for an=20 adjournment came right at the end of the argument in relation to the = appeal=20 and over two years after the documents on which it was based. No good=20 explanation was advanced as to why it was not made shortly after the = documents=20 to which I have referred were revealed. Even though they are, largely, = incomprehensible the stark fact was revealed that someone had altered = the=20 exhibit numbers, had made no note at the time of the alteration as to = why it=20 was necessary to alter those numbers, and had concealed the fact of = those=20 alterations in the statement that was served on the defendant and his = legal=20 advisers. The application for an amendment should have been made = shortly after=20 those documents were disclosed and, certainly, well before the hearing = in the=20 Liverpool County Court.

  20. The Forensic Science Service Limited = contends that=20 it has been prejudiced in a way which cannot be compensated in costs. = It=20 points out the events on which the allegations are based occurred = nearly five=20 years ago. It says that it could have provided evidence as to the = systems=20 operated at the material time but responding to "specific factual = allegations=20 of falsifying records is quite different". It argues that had the = amendment=20 been made earlier it would have been in a "considerably better = position" to=20 produce evidence.

  21. The Forensic Science Service Limited = adduces no=20 evidence as to whether those responsible for altering the records and=20 producing the final witness statement are still available or not. If, = as I=20 will charitably assume, the alteration of exhibit numbers is a rare = event, one=20 might have expected whoever is responsible to remember it. All the = more so=20 since the alteration was not disclosed in the final written statement. = Without=20 any evidence from the witnesses responsible for what at this stage = appears a=20 grave state of affairs, I cannot assume that the absence of = explanation is due=20 to delay in applying for the amendment. The respondent has not given = any=20 explanation as to why there is no contemporaneous note of the reasons = for the=20 manuscript alterations of exhibit numbers or why those alterations = were=20 concealed in the written statement served on the appellant.

  22. In those circumstances, as the court = has already=20 announced, I would grant permission to amend in the terms proposed. =

  23. It remains necessary, however, to = decide the=20 question whether the judge's order striking out the claim for = negligence and=20 under the Human Rights Act should be maintained. For that purpose I = should=20 deal with the basis upon which the judge struck out those claims.

  24. First, the judge concluded that the = evidence=20 relating to the collection, transmission and examination of exhibits = was=20 protected by witness immunity. This conclusion was based upon the = decision of=20 Drake J conferring immunity in Evans v London Hospital Medical = College=20 (University of London) [1981] 1 WLR 184 and the distinction = between=20 Evans and Darker v Chief Constable of the West Midlands = Police=20 [2001]=20 AC 435 in which the House of Lords refused immunity. In Evans=20 organs removed from a dead child had been, so it was alleged, = negligently=20 contaminated with morphine, leading to a false charge of murder. In=20 Darker, police had allegedly planted evidence. Two features in=20 Darker are of significance in this appeal. First, absolute = immunity is=20 in principle inconsistent with the rule of law and the protection it = affords=20 must not be given any wider application than is absolutely necessary = in the=20 interests of the administration of justice (see Lord Cooke, page = 435D-E).=20 Second, there is no immunity which covers the fabrication or creation = of=20 evidence in circumstances where that fabrication is never intended to = appear=20 in any statement, (see, e.g., Lord Cooke at 454C and Lord Hutton at = 466F).=20

  25. The paradigm circumstance which falls = within the=20 protection of witness immunity is the giving of evidence by a witness = in=20 court. This has been extended to the preparation of evidence with a = view to it=20 being adduced, whether or not the witness is to give evidence (see = Lord Hutton=20 463G-465E). The rationale for the immunity is: first, the need to = protect=20 witnesses from the fear that they will be harassed by subsequent = actions=20 against them. The immunity is designed to encourage freedom of speech = and=20 communication in judicial proceedings (see Lord Hoffman in Taylor v = Director of the Serious Fraud Office [1999]=20 2 AC 177, 208). Second, the immunity is designed to prevent a = collateral=20 attack being made on the decision in which the allegedly false = evidence was=20 given (see, e.g., Lord Clyde, 461D-E).

  26. Now that we have allowed the = amendment, the=20 rationale for conferring witness immunity has gone. First, witnesses, = if=20 called by the respondent, will have to explain and justify the = handling of the=20 exhibits in this case. They cannot be protected from being questioned = or from=20 accounting for their actions. Second, now that the allegations of = deceit are=20 to be fully aired, the immunity serves no purpose because it will not = prevent=20 a collateral attack.

  27. In Darker their Lordships gave = differing=20 reasons for declining to extend the immunity to what was alleged to be = the=20 fabrication of evidence. It is, no doubt, for that reason that the = respondent=20 accepts that the documents now disclosed afford a proper ground for = alleging=20 deceit and that in those circumstances, apart from the resistance to = the=20 amendment, they accept that the new allegation should not be struck = out. If,=20 as a result of this court's ruling, the trial continues on the basis = of the=20 allegations of deceit, then it does not seem to be wise to strike out = the=20 allegations of negligence. The boundaries between those circumstances = in which=20 an immunity can be conferred and those where it will not depend upon = the=20 facts. As Lord Cooke envisaged:-

    "Each category of immunity requires separate consideration = and=20 justification, while each set of facts requires full examination in=20 determining whether it can be brought within a particular category." = (454G)=20
  28. Some of the reasons given in the = speeches in=20 Darker justify keeping the claim for negligence alive. Not all = of their=20 Lordships founded their conclusion upon the distinction between = negligence and=20 fraud. Lord Hope, for example, noted that the allegations referred to = things=20 done by the police "during the initial stage when they were acting as=20 investigators". He did not think that it could be asserted, without = hearing=20 the evidence, that the allegations fell within the boundaries of the = immunity=20 (450B). Whilst agreeing with the conclusion, Lord Mackay did not think = that=20 Drake J's decision in Evans extended the immunity to "alleged = negligent=20 conduct not reflected in a written report or statement" (451G). For = those=20 reasons, I would not strike out a claim in negligence.

  29. For similar reasons, I do not think it = appropriate=20 at this stage to uphold the judge's view that no duty of care was = owed. All=20 the more so since, as Lord Cooke, following Lord Hoffman, thought that = Evans' case might be decided on the ground that the defendants = owed the=20 plaintiff no duty of care (454D). The judge took the view that no duty = of care=20 was owed by a forensic scientist, an employee of the respondents. In = the light=20 of the amendments now made, I think it would be wrong to exclude the=20 proposition that whoever it was who interfered with the correct = exhibit=20 number, whether it was the forensic examiner or not, owed a duty to = the person=20 to whom the bullet would be attributed as a result of interference = with the=20 exhibit number.

  30. It must be recognised that as a result = of=20 interference with the exhibit number the real bullet was falsely = attributed to=20 this appellant. The effect of interference with the exhibit numbers, = whether=20 it was designed originally to conceal confusion or "mix up" or not, = was the=20 same as planting the real bullet in the appellant's premises. It is = alarming=20 that the course of justice appears to have been perverted by the = alteration of=20 exhibit numbers and the failure to disclose that that had occurred or = any=20 reason why it occurred. I suggest any court would be most reluctant to = allow=20 immunity to be deployed in a way which prevents these matters being = litigated.=20 All the more so when the suggestion that the matter be rectified in = the=20 Magistrates' Court removed any right of statutory redress.

  31. It is unlikely that the Human Rights = Act claim=20 will need resolution. But in the light of the continuation of the = claim on=20 other grounds it seems to me wrong that the question whether the = respondent=20 was a public body or not should rest upon summary judgment without any = full=20 examination of the facts.

  32. For those reasons, without the need = for any=20 searching analysis of the distinction between Evans and = Darker=20 or full examination of the reasons given for the distinction in the = speeches=20 in the House of Lords, I would allow the amendment and uphold the = appeal. If=20 my Lords agree with my conclusions, then we will consider written = arguments in=20 relation to directions and costs.

    Lord Justice Rimer:

  33. I agree with both judgments.

    Lord Justice Aikens:

  34. I agree. Mr Squires, for the=20 respondent, accepted that the proposed amendments alleging deceit = were=20 properly pleaded and could not be struck out on the ground that they = did not=20 raise an arguable case.   In the absence of any evidence = whatsoever=20 as to why this amendment would cause irremediable prejudice to the = FSSL, =20 I cannot accept the submission Mr Squires made that these amendments = should=20 not be permitted because it is now too late.  After all, his case = has not=20 got beyond the stage of an attempt to strike out the claim. It is not = like=20 many of the decisions to which we were referred, (including that = of=20 Brown v InnovatorOne) which concern an attempt to amend = during=20 the trial itself.

  35. Once that amendment is = allowed, the trial of=20 the deceit claim will have to go ahead unless it is settled in the = meantime.=20  As my lord has pointed out, the precise scope of the immunity of = witnesses, which may have seemed clear at the time Evans was = decided,=20 is no longer so as a result of the five speeches of their Lordships in = Darker, which lay different emphasis on different = factors.=20 The present case is not the right one to analyse and define = the outer=20 limits of the immunity, because I suspect that, as a result = of=20 Darker, whether there is immunity or not will = depend on the=20 precise facts of a particular case. We must not prejudge what will be = found=20 when the facts are investigated here. To the riposte that such an = approach=20 undermines the purposes of granting immunity in the first place I = would give=20 the same answer as Lord Hope of Craighead gave in Darker at = 446C-D.=20  The general principle must be that where there is a wrong there = is a=20 remedy and immunity is a derogation from a person's right of access to = a court=20 which requires to be justified.  A justifiable boundary has to be = drawn=20 somewhere, but it cannot be drawn when you do not know the = terrain.

  36. The next question, that is, whether = the respondent=20 can owe the appellant a duty of care so as to found any claim in = negligence,=20 must also depend on the facts. As Mr Squires accepted, the issue = here=20 must be whether it is "fair just and reasonable" to impose such a=20 duty, because the requirements of foreseeability of damage and = proximity=20 can readily be satisfied.  Whether it is fair just and reasonable = to=20 impose a duty of care must depend on the facts, in particular the = nature=20 of the body "The Forensic Science Service Limited" and what precisely = happened=20 to the bullet and how it came to be mislabelled.  They are all = going to=20 be investigated in any event as a result of the amendment pleading = deceit.=20

  37. As for the Human Rights Act claim, the = key issue=20 (assuming that there is no immunity) is whether the FSSL is a public = body or=20 not.  It is not clear to me, on the facts we = have, which side=20 of the line it falls on.  That also needs investigation.

    39. For those reasons I would allow this appeal.

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