Raising a criminal case in the civil courts

1st February 2022

Allegations of criminal behaviour are normally tried in the criminal courts. But where a crime is either not prosecuted, or cannot be proved beyond reasonable doubt, the question may end up being tried in a civil court, even where the allegation is as serious as it could be, such as murder. This may cause difficulties where the evidence relied upon has been obtained by a third party, such as a police force whether in England or abroad, and the claimant is not in a position to give a detailed account of the allegation until that evidence is available.

Leslie Blohm QC

In Leeson v Mcpherson Paula Leeson’s family have alleged that Paula was murdered by her husband, Donald Mcpherson, when they were on holiday in Denmark. Mcpherson was acquitted of murder in March 2021 at Manchester Crown Court when the judge considered that the Crown’s evidence did not establish beyond reasonable doubt that Paula had been deliberately drowned in a swimming pool, rather than suffering an accidental death. Paula’s family then sued her husband to prevent him inheriting her estate. They also applied for an order that Greater Manchester Police make disclosure to them of their evidence in the case, pursuant to CPR 31.17. The Particulars of Claim simply alleged that Mcpherson unlawfully killed Paula in the following terms:

“The unlawful killing of Paula Leeson

1. Paula Elizabeth Leeson (‘the deceased’) died on 6 June 2017 at Sondervang 61,

Reward, 6830 Norre-Nebel, Denmark.

2. The deceased was unlawfully killed by the defendant by drowning her.

…..

7. The claimants continue to pursue disclosure from Greater Manchester Police of the documents relating to the investigations in both Denmark and the UK into the deceased’s death. Upon receipt of the same, the claimants shall apply to amend these Particulars of Claim to plead such further facts and matters in support of their claims as may be necessary.”

Mcpherson applied to strike out the claim, arguing that the claimants had not provided details of the illegality as required by CPR 16.4(1)(a) and PD 8.2(2), being the circumstantial evidence relied upon the establish murder, and also as an abuse of the court process. He also resisted the application for disclosure.

The Judge (HHJ Pearce) held that the pleadings were not defective, and set out the required allegation sufficient for the defendant to plead to it. It was not necessary for the claimants to set out the evidence on which they relied at the outset. The pleading asserted a proper basis for the claim of forfeiture.

Cases that dealt with the pleading of dishonesty and fraud (see e.g. Armitage v Nurse [1998] Ch 241) were not helpful analogies, and not comparable to an allegation of unlawful killing.

The Judge also held that the disclosure should in principle be made, but there would be a further hearing to consider specific objections to disclosure, such as allegations of privilege. Where evidence had been supplied by the Kingdom of Denmark to Greater Manchester Police under the Crime (International Co-operation) Act 2003, an order for disclosure would be made conditional upon consent to disclosure being given by Denmark (distinguishing the comments of Tugendhat J. in Mitchell v News Group Newspapers [2004] EWHC 879 QB that conditional orders for disclosure should not be made).

Leslie Blohm QC, leading Tom Gosling of 23ES chambers and instructed by Glaisyers, appeared for the claimants.

To see the ruling of Goose J. on the submission of no case to answer in the criminal trial, click here.