Crawford v Jenkins [2014] EWCA Civ 1035 (24 July 2014)

A barrister sued his former wife, a solicitor, for false imprisonment and harassment after she complained to police that he breached court orders, leading to his arrest. The Court of Appeal held that witness immunity protected her police statements from suit, and that two text messages she sent could not constitute harassment.

Facts

The appellant, Lincoln Crawford, a barrister, and the respondent, Bronwen Jenkins, a solicitor, were formerly husband and wife with two children. On 13 June 2009, both attended their daughter’s school Open Day, during which the respondent sent two text messages to the appellant objecting to his presence. On 19 June 2009, the respondent complained to police that the appellant had breached a 2003 contact order and a 2006 restraining order made under the Protection from Harassment Act 1997. She provided oral and written statements to police.

On 16 July 2009, the appellant was arrested twice at Holborn Police Station: first for breach of the 2003 contact order (which carried no power of arrest), and then for breach of the 2006 restraining order. He was detained for just over four hours before being released on bail. The Crown Prosecution Service decided no prosecution should follow.

The appellant brought proceedings against both the Metropolitan Police Commissioner (subsequently settled) and the respondent, claiming false imprisonment and harassment under the 1997 Act.

Issues

Primary Issue

Whether the respondent was immune from suit for false imprisonment and harassment in respect of her complaints and statements to police, by virtue of the witness immunity rule.

Secondary Issue

Whether the two text messages alone could sustain a claim for harassment under the Protection from Harassment Act 1997.

Judgment

The Court of Appeal dismissed the appeal, upholding the judge’s decision that witness immunity applied to the respondent’s statements to police and that the harassment claim based solely on the two text messages should be struck out.

Witness Immunity and False Imprisonment

Sir Timothy Lloyd, delivering the leading judgment, distinguished between cases involving abuse of court process and cases where no court proceedings occurred. He noted that the immunity rule applies to statements made to police as the first step in a process that might lead to prosecution, as established in Westcott v Westcott [2009] QB 407.

The court held that the tort of malicious procurement of arrest, as recognised in Roy v Prior [1971] AC 470, requires the involvement of court process. Where no court proceedings occur, there is no abuse of court process, and therefore no exception to witness immunity applies. The appellant could seek remedy against the police for unlawful arrest, but could not circumvent witness immunity to sue the respondent for her statements to police.

Witness Immunity and Harassment

The court rejected the argument that witness immunity did not apply to harassment claims because the cause of action was based on a course of conduct rather than the statements themselves. Sir Timothy Lloyd held that where the course of conduct alleged consists of making statements protected by witness immunity, the immunity applies equally to harassment claims as to defamation claims.

The Two Text Messages

Applying the test from Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233 and Dowson v Chief Constable of Northumbria [2010] EWHC 2612, the court held that even if the two text messages could constitute a course of conduct, they could not amount to harassment. The messages were not objectively likely to cause alarm or distress, nor could they be judged oppressive or unacceptable in context.

Implications

This decision clarifies the scope of witness immunity in relation to claims for malicious procurement of arrest and harassment. The key principle is that the exception to witness immunity for abuse of court process only applies where court proceedings are actually invoked. Where police arrest a person based on information from a complainant but no prosecution follows, the complainant remains protected by witness immunity, and the claimant’s remedy lies against the police alone.

The decision also confirms that witness immunity applies to harassment claims under the 1997 Act where the alleged course of conduct consists of statements that would be protected in a defamation claim. This prevents claimants from circumventing witness immunity by reframing claims under different causes of action.

Verdict: Appeal dismissed. The respondent was immune from suit in respect of her complaints to police for both false imprisonment and harassment claims. The harassment claim based on two text messages was struck out as the messages could not amount to harassment.

Source: Crawford v Jenkins [2014] EWCA Civ 1035 (24 July 2014)