Prosecuting authorities liable for delay in criminal investigations

11.02.15 | |

The Court of Appeal has, today, handed down judgment in Zenati v Commissioner of Police of the Metropolis and another [2015] EWCA Civ 80. The issue in Zenati was whether prosecuting authorities, including the police and the CPS, owe a duty of “special diligence” when investigating a criminal offence, where a suspect is in custody, pursuant to article 5 of the European Convention on Human Rights.  It has long been established that prosecuting authorities owe no such duty at common law.  


The Master of the Rolls held that it is implicit in article 5(1)(c) and article 5(3) that investigating / prosecuting authorities are required to bring the relevant facts to the attention of the court as soon as possible, where they cease to have a reasonable suspicion that the detained person committed the offence in question (paragraph 20).  If delay on the part of the investigating / prosecuting authorities causes a court to fail to conduct proceedings with special diligence, then those who are responsible for the delay will be responsible for the breach of article 5(3) (paragraph 43).   If the investigating authorities fail to bring to the attention of the court material information of which the court should be made aware when reviewing a detention, this may have the effect of causing a decision by the court to refuse bail to be in breach of article 5(3) (paragraph 44).  Lord Justice Lewison (at paragraph 58) and Lord Justice McCombe (at paragraph 60) agreed.


Sofian Zenati was arrested and remanded in custody for possession of a false passport on 10 December 2010.  The police and CPS took limited steps to investigate whether the passport was genuine until mid January 2011.  Although the police became aware that the passport was genuine on 19 January 2011, the police did not tell the CPS about this until 4 February 2011, after a plea and case management hearing on the same day at which bail had not been addressed.  The Central London County Court struck out his article 5 and false imprisonment claims.  The Court of Appeal held that it was arguable that the police had breached article 5(1)(c) between 19 January 2011 and 9 February 2011, when bail was finally granted (paragraph 21).  It was also arguable that the police and the CPS had conducted the investigation in a dilatory fashion, causing Mr Zenati to be held in custody for an unreasonably long time.  There was therefore an arguable breach of article 5(3) by the police and the CPS between 10 December 2010 and 4 February 2011 (paragraphs 47-48).  The Court of Appeal refused an application for permission to appeal to the Supreme Court made by the police and the CPS.


Following the judgment of the Supreme Court in Michael, this judgment of the Court of Appeal again demonstrates the fundamental importance of the Human Rights Act 1998 to victims of failures by the police and prosecuting authorities.  The Court of Appeal struck out a common law false imprisonment claim, but article 5 stepped in to fill the gap.


Jude Bunting acted on behalf of Mr Zenati at all levels, along with Hugh Southey QC in the Court of Appeal. Andrew Arthur of Fisher Meredith acted as solicitor throughout the claim.

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