Tort revived

Regarding Nicola Laver's feature (see [2001] Gazette, 12 April, 18), the tort of misfeasance in public office does have a 'new lease of life'.

Practitioners advising on actions for wrongful prosecution should be aware of the landmark House of Lords' judgment in Darker and Others v Chief Constable of the West Midlands Police [2000] 4 All ER 193.

In Darker, it was held that prosecuting authorities no longer have absolute immunity from civil actions except for witness statements and evidence given at trial.

Therefore, the immunity no longer extends to malicious acts in the investigation of crime or in the preparation of a case for trial.

For example, there would be no immunity where evidence is fabricated or planted or there is a failure to give proper disclosure.

This is an important point.

The only other cause of action for wrongful prosecution had been malicious prosecution, which requires an absence of reasonable and probable cause whereas misfeasance in public office does not.

Lawrence Kormornick, Dechert, London