Moulton v Chief Constable of the West Midlands

This is an appeal from the order of HH Judge McKenna, sitting in the Birmingham County Court on 15 January 2008. He dismissed the claim of Kirk Carlson Moulton against the Chief Constable of the West Midlands Police for damages for malicious prosecution and misfeasance in public office. Mr Moulton now appeals against that order with the permission of Ward LJ.

The events with which this appeal is concerned took place as long ago as September 2000. On 17 September 2000, the appellant was arrested by West Midlands police on charges of rape and assault occasioning actual bodily harm. The complainant in the allegation of rape was a young woman aged 16 whom I shall call BB. Her friend, whom I shall call PP, a young woman aged 17, had complained of assault. The allegations related to events which took place in the early hours of 17 September. In interview, the appellant denied rape although he admitted having had intercourse with BB; he claimed that she had consented. He denied having assaulted PP. He was charged in the late evening of 18 September and on 19 September was remanded in custody by magistrates. On 15 November 2000, he was committed to the Crown Court for trial and was granted bail on condition that he resided in a bail hostel. On 27 November, being in breach of his bail conditions, he was remanded in custody where he remained until 3 January 2001 when the matter came before the Crown Court and the prosecution offered no evidence. The appellant was discharged.

On 15 September 2006, very shortly before the expiry of the statutory limitation period, the appellant commenced a claim against the police for false imprisonment alleging that the officers involved had not investigated the allegations as they should have done. It was averred that any detention beyond 18 September was unlawful. The appellant also alleged malicious prosecution, the gist of the allegation being that no person examining the available evidence could have concluded that there was any reasonable or probable basis for the prosecution. The defence denied liability.

The action came on for trial in January 2008 on pleadings which had been amended on both sides. By that time, the appellant was pursuing claims for malicious prosecution and misfeasance in public office but not false imprisonment. Given that it was common ground that the prosecution had ended in the appellant’s favour, the essential matters that the appellant had to prove for malicious prosecution were that the police had not had reasonable and probable cause to pursue the prosecution and that they had acted with malice, that is from a motive other than a legitimate desire to bring the appellant to justice.

The evidence comprised a detailed examination of the police investigation and the motivation of the police officers in pursuing the allegations. In essence, the appellant was contending that the evidence the police collected was so riddled with inconsistencies that they could not at any stage have had reasonable and probable cause to pursue a prosecution. Also important further evidence was not collected and scientific examination of samples was not commissioned. As to malice, it was contended that malice should be inferred from the way in which the investigation had been pursued and from the attitude of the officer in charge. On this appeal, it will be necessary to review the evidence of the investigation in some detail.

The judge held that the appellant had failed to show either a lack of reasonable and probable cause or malice. He also rejected the claim for misfeasance in public office. He was, however, quite critical of the thoroughness of the investigation and the lack of expedition with which the police had acted. In this appeal, Miss Cherie Booth QC, for the appellant contends that the judge’s conclusions on reasonable and probable cause were irrational. The only conclusions open to him on the evidence would have led to the malicious prosecution claim succeeding. She also sought to persuade us that this Court should take a broader approach to the requirement upon a claimant to prove malice than has hitherto been taken in the courts of this country. While not abandoning the appeal in respect of misfeasance, Miss Booth was content to rely on the written argument. In effect, she accepted that, if the appellant could not show malice for the purpose of malicious prosecution, he could not succeed on misfeasance.

At about 6am on 17 September 2000, BB attended at Dudley Police Station and made a complaint that she had been raped by the appellant in a car park about an hour or two earlier. She was accompanied by PP who complained that the appellant had assaulted her. Soon after their arrival, a friend of theirs, a youth whom I shall call MS, also attended. He told the police that BB had complained to him that she had been raped a short time earlier. He remained at Dudley Police station until he had given a witness statement. The police observed that PP had some minor injuries (marks to the face and scratches on the chest and forearm) and these were photographed. They also observed that BB had dirt on her hands. Both girls were taken to the rape suite at Brierley Hill Police station and a ‘child’s evidence log’ was commenced.

On arrival, BB’s initial account of events was recorded in the log by WPC Sarah Burns. BB said that after being in a night club, she and PP were waiting for a taxi when a lad called Kirk (the appellant) whom she had seen a couple of times offered them a lift. He drove them to a car park and asked her to get out. He turned the music up very loud. She got out and they walked away from the car. They were standing by some bushes when the appellant pushed her into the bushes, pinned her down and raped her. Afterwards they went back to the car, PP got out and BB told her what had happened. PP ‘went mad’ at the appellant. The two girls had then walked back to Dudley and had gone to the police station. She added that she had been wearing a tampon but had ‘chucked it in the bushes’.

A statement was taken from PP in which she gave a good deal of detail about the events of the day and the contact she and BB had had with the appellant at a night club in Dudley town centre. She then described how, at about 3.45 am the two girls had accepted a lift in the appellant’s car and he had driven to a parking area behind some maisonettes at Tudor Court. The appellant had asked BB to get out of the car and she agreed. The appellant turned the music in the car up very loud and locked the car doors as he got out. The two of them disappeared behind the car. PP waited about 15 minutes and then tried to get out of the car; she could not. Nor could she turn down the volume of the music. She tried shouting to BB as she was concerned. After about another 10 minutes, BB arrived back at the car and started banging on the windows; she was in a distressed state with her clothing awry. Then PP saw the appellant. His shirt was hanging out and there were grass marks on the knees of his trousers. BB then told the appellant to let her (PP) out of the car and he unlocked the doors. PP got out and BB hugged her and was crying. She said that the appellant had raped her. PP then went to the appellant and pushed him with both hands. He fell backwards but then recovered and came towards her, grabbed her by the shoulders and threw her on the ground. He pinned her down and threatened to rape her. BB intervened and between them the two girls were able to push the appellant off PP. The two girls then ran away and carried on running until they got to a phone box. PP telephoned MS and arranged to meet him at Dudley Bus Station. From there the two girls went to the police station. She added that she had left her bus pass and keys in the appellant’s car.

At about 9.30 that day (17 September), PP took police officers to Tudor Court and identified an area of bushes and bracken behind the maisonettes where she said the appellant and BB had gone. She also identified the appellant’s car, which was parked there.

Internal police records revealed that the appellant was suspected of harassing a young woman who lived nearby. A team of officers was assembled and at about 11.15am, the appellant was arrested at his home at Tudor Court. A bus pass, later found to belong to BB, was found on the living room window sill. It was seized. The appellant’s car was examined and fingerprint lifts were taken. There is no record that a bus pass was found in the car. Later in the day the appellant provided samples including intimate samples. It should be noted that, although the scene at the back of the maisonettes was later photographed, the area to which PP had said that the appellant and BB had gone was never searched.

Starting at about 12.30pm that day, BB was medically examined. She was found to be menstruating. She told the doctor that she had been using a tampon and that she was sure that the man who had raped her had removed it. She was found to have an injury to the back of her left upper arm consistent with contact with the ground or a rough surface. A range of samples, including intimate samples and samples for DNA testing were taken.

During the afternoon of 17 September, a short statement was taken from BB. She said that she and PP had accepted a lift home from a night club in the appellant’s car. He had driven them into a car park and asked her to get out and speak to him. As BB walked towards the appellant he pushed her backwards; she fell backwards over a low green metal fence or railing which surrounded the car park. He then raped her. Then she got up and ran back to the car, where PP had remained and the two girls ran away. She said she realised later that she had lost her bus pass.

On the following day, the police were unable to contact BB until lunchtime. In the afternoon, she provided a full written statement, taken in the presence of an appropriate adult. This statement was taken by WDC Amos, an officer with special training in the investigation of rape offences. It provided a wealth of detail about contact between BB and the appellant culminating in them both being in the same night club on the night of 16/17 September. It is fair to say that her account of these earlier events was different from that of PP in that BB appeared anxious to diminish her interest in the appellant whereas PP had said that the two had met at the night club by arrangement and had spent time together while there. When it came to the car journey, BB described how the appellant turned into a car park surfaced with tarmac and marked out with yellow lines. It was big enough for about 12 cars; it had a low yellow railing at the edge and one light. The appellant stopped the car by some trees and bushes. He turned the music up very loud and got out of the car. He beckoned to BB to get out and she did so. She walked round the front of the car which was very close to the railing. He then suggested that they have intercourse. She backed away from him so that her calves were against the railing. She said “No Friends”. He then pushed her backwards. She said “Don’t.” She fell backwards over the railing and landed on her back. She tried to sit up but the appellant climbed over the railing and pushed her down again. BB was shouting for her friend, PP. The appellant pulled her by the wrists and dragged her backwards towards some trees. She was still shouting for help. She could hear the loud music and realised that PP was not going to come. Then the appellant stood astride her and pulled her trousers and knickers down. He put his knee on her stomach while he took his trousers down. BB was struggling all the time, trying to sit up and calling for PP. She described what amounted to a battle between them before he was able to insert his penis into her vagina. He began to move for some time and then stopped. She said that she assumed that he had ejaculated. They got up, pulled their trousers up and walked to the car. She added that she had been wearing a tampon and she did not know what had happened to it. BB said that she went to the rear offside door of the car, opened it and told PP to get out; she had just been raped. PP did so and went angrily to the appellant shouting at him and punching him. BB tried to intervene but the appellant was holding PP and shaking her saying “Do you want the same?” Then the two girls managed to get away and ran off out of the car park. The appellant followed in his car and told them not to “breathe a word about this”.

That evening, 18 September, WDC Amos accompanied BB in a police car when they attempted to identify the car park where the rape had occurred. BB who is not a native of Dudley and had lived there for only a few months, said that she recognised a turning from the route taken by the appellant. This led into the car park of Dudley Port railway station. She identified the railing over which she had fallen. The scene was later photographed but was never searched.

Also that evening, the appellant was interviewed by two police officers (DS Mason and DC Smith) in the presence of his solicitor and an appropriate adult. Attendance by the latter was necessary as the appellant has mental health problems. In the interview, the appellant answered all questions without apparent hesitation. He provided an immensely detailed account of the events of Friday 15 September, Saturday 16 and the early hours of Sunday 17. He said that he and BB had been together in the night club and had been kissing. Afterwards, he had hoped to take BB home but she had gone off with others and he had gone home alone. Then she had telephoned him to ask for a lift and he had gone back into Dudley to collect her. He found she was still with PP and both girls got in the car. They agreed to go back to his flat. On arrival they all went in; he put some music on and offered them a drink. PP said she was very tired and wanted to go to bed. He showed her the only bedroom and she went in. He and BB were then kissing and cuddling in the living room and then decided to go to bed. They took their clothes off and got into the bed where PP was lying. They had consensual intercourse but he did not ejaculate. PP then got up and started putting on clothes which belonged to the appellant. He told her not to. BB also put on some of the appellant’s clothes including a Nike top. He objected. Both girls then left. After they had gone he found a bus pass on the window sill. He tried to speak to BB on the telephone but the line went dead. He went back to bed. When he awoke, there were police outside.

The girls’ accounts were put to him. He denied that he had a stereo in his car or that it was possible to lock anyone in. He asserted that he had found BB’s bus pass on his living room window sill where she had left it. It is clear from the line of questioning that the police officers did not believe his denials. The interview concluded with a discussion about the items which BB might have touched within the flat. This was plainly with a view to obtaining fingerprint or DNA evidence. At the end of the interview, the appellant was charged with both offences and denied both. The prosecution was under way.

The judge held that at the time when the appellant was charged there was reasonable and probable cause to commence a prosecution. Miss Booth submitted that he erred in so doing.

First, I observe that it is not clear who made the decision to charge the appellant. DC Smith was appointed officer in charge of the case. When giving evidence at the hearing, he said that, due to the passage of time, he had little recollection of the case. That is not surprising. As a result he was dependent upon the contemporaneous records. It may well be that the two officers decided jointly that the appellant should be charged.

Miss Booth submitted to this court that any competent officer reviewing the available evidence would have realised that the evidence was so riddled with inconsistencies that he should not have proceeded to charge, at least not until further enquiries had been made. She pointed to the need to search the areas in the two car parks either of which might have yielded a discarded tampon. She pointed to the need for scenes of crime examination of the flat. As to the former, I would agree that the scenes should have been searched. However, such a search could not have exonerated the appellant. If a tampon had been found, that would have been helpful evidence for the prosecution, but a negative result would not have helped the appellant greatly. As to the need for scientific evidence, once it was known that the couple had had intercourse, the intimate samples became unhelpful. In any event, it is well known that it can take several weeks for the results of tests to be available and, unless the case is mainly dependent on such evidence, it is usual to charge without waiting for such results. This was not a case in which the scientific evidence was essential to the prosecution’s case.

Mr Andrew Fisher QC for the respondent accepted before us that close examination of the witness statements revealed that there were a number of inconsistencies. However, he submitted that that was by no means unusual in cases such as this. The existence of such inconsistencies did not necessarily mean that either girl was not telling the truth. It is not apparent to me from the interview record that the officers had realised that there were inconsistencies within the evidence. When putting the case to the appellant, they put a composite and quite coherent version of the allegation.

As for what Ms Booth submitted was the most stark inconsistency, the identification of two different car parks, Mr Fisher submitted that this did not mean that the girls had concocted their evidence. BB was not familiar with Dudley. She had apparently recognised the route out of the town centre and had led the police down a turning which was very close to the turning to Tudor Court. This turning led to the railway car park. It is not clear to me from the interview record that, at the time of the interview, the officers were aware that the girls had identified two different car parks. Indeed, I rather think they may not have been. The interview started at 8.58pm on 18 September. BB met the police officers who were to help her identify the car park at 7.30 that evening and there is no note of the time at which the railway car park was identified or when information about the identification was passed to other officers. I would say that, if the officers did know that the girls had identified different car parks, they should have attempted to clarify the uncertainty before proceeding further. It would be a matter of some concern that both the appellant and PP had said that the car went straight from Dudley town centre to Tudor Court whereas BB had identified the railway car park and had claimed to recognise the very railing over which she had been pushed (albeit she was inconsistent about its colour).

The judge did not break down the history of the investigation into events which occurred before charge and those which occurred thereafter. However, he plainly recognised the importance of the decision to charge which requires an assessment of the adequacy of the evidence. After considering all the evidence, both pre- and post charge, he concluded at paragraph 28 of his judgment that:

Miss Booth has submitted that the judge did not direct himself correctly as to what was meant by ‘reasonable and probable cause’. I cannot accept that submission. At paragraph 24 of his judgment he set out what he said was the standard explanation of the term as given by Hawkins J in Hicks v Faulkner [1878] 8 Q.B.D. 167 at page 171 as approved by the House of Lords in Herniman v Smith [1938] AC 305. There must be:

That definition requires a finding as to the subjective state of mind of the police officer responsible and an objective consideration of the adequacy of evidence. If the judge did not spell out his findings as to the subjective and objective limbs, it is not to be assumed that he did not have them in mind.

Miss Booth also submitted that the judge’s conclusion at his paragraph 24 was irrational. I do not accept that. Indeed, I would have reached the same conclusion myself. I would have articulated my reasons as follows. Examination of the interview record, the police incident log and all other pre-charge documents reveal nothing to suggest that the officers conducting the interview, who were those who decided that the appellant should be charged, had any doubts about the validity of the accusations made by BB and PP. They may have been wrong, - indeed events were to prove them so – but at the time of charging, they appear honestly to have believed that these were true accusations. Second, an objective examination of the evidence, if scrupulously careful, would have revealed a number of inconsistencies within the evidence and a number of matters which required clarification. But such examination would not in my view have led a conscientious police officer to any view other than that the appellant was probably guilty. I would hold that the judge was right to hold that there was reasonable and probable cause to commence the prosecution.

The judge did not make any specific reference to evidence of malice at the time of the charge. He did not need to. The claim could not succeed in respect of that period if there was reasonable and probable cause to prosecute. But I would observe that there is not a shred of evidence from which it could be inferred that, at that early stage, the officers were motivated by anything other than a legitimate desire to bring the appellant to justice.

After the appellant had been charged in the late evening of 18 September, the prosecution did not progress as well as it should have done. The following morning the appellant’s flat was examined by scenes of crime officers and various items were taken for scientific examination. They were never submitted for such examination. Also his car was examined again. It was found that although a stereo system was fitted, the front panel was missing and, at the time of examination, it was inoperative. It seems to me that that was helpful to the appellant but far from conclusive. As for the locking system, it was found that the central locking system did not work normally. It did not function at all when the key was inserted in the driver’s door. When inserted in the front passenger door, it operated all the locks save that of the offside rear door. That evidence tended to discredit PP’s account of events.

Also on 19 September, the appellant was brought before magistrates who refused bail.

As I have said, DC Smith was appointed officer in charge of the case. However, within a very short time, he was also assigned to another investigation and it appears that he had little time and/or paid little further attention to the appellant’s case. The file was passed to the Crown Prosecution Service (CPS) and any further investigations were to be undertaken at their instruction.

After 21 September, nothing very much appears to have happened save that the papers were prepared for a committal hearing on 15 November. Meanwhile the appellant remained in custody. On 13 November, the CPS sent the police a memo asking for various items of information. Among other things, they asked when the results of the forensic tests were expected. Some of these queries were answered by an officer on 16 November and the rest were referred to DC Smith. He does not appear to have responded and it is clear that the CPS tried to chase him up.

On 15 November, the appellant’s solicitor representative consented to committal for trial to the Crown Court on both charges. In effect, on the appellant’s behalf, it was accepted that there was a case to answer. At the committal hearing, the appellant was granted bail on condition that he resided in a bail hostel.

On the following day, 16 November, PP happened by chance to meet PC Sullivan, the officer to whom she had given her initial statement. She informed him that she had not told the whole truth in her earlier statement. It does not appear from the note made of that conversation that she indicated in what respect her earlier statement required correction. It was clear that it would be necessary for the police to take a further statement from PP. In the event that did not happen until 29 November.

In late November, the CPS were still chasing DC Smith to deal with their queries and there is an entry in police records dated 24 November signed by DS Smith to the effect that he had left a message for Michelle Brown of the CPS. A later note suggests that, on 24 November, DC Smith spoke to Ms Brown and told her that he had reason to believe that the police would soon have a new statement from PP who would say that the circumstances of the offence were not as first stated. It was for that reason that he had not had any forensic testing done to date. The appellant was to lay considerable emphasis on that note at the trial, as did Miss Booth in arguing the appeal. It was submitted that it was indicative of malice.

Meanwhile, on 22 November, the appellant was found in possession of a small amount of crack cocaine. He was brought before the magistrates and fined. This conduct amounted to a breach of the rules of the bail hostel and he was refused readmission. The police consulted with the CPS who advised that, notwithstanding the likelihood that new evidence was coming from PP, the appellant should be arrested so that an address could be established and to prevent him committing further offences. On 27 November, he surrendered voluntarily to the police. He was brought before the magistrates who remanded him in custody. Miss Booth complains that, on that day the police should not have opposed bail as they should have realised that the case against the appellant was coming unravelled. They did not even tell the appellant that PP was going to make a new statement. That too was evidence from which malice should be inferred.

On 29 November, PP was re-interviewed by PC Sullivan. She told him that most of her earlier statement was true but that the rape had not taken place in the car park at the back of the Tudor Court maisonettes. In fact it had taken place in the appellant’s own flat. She said that she had told the police the rape had occurred outside because BB had asked her to; she had feared that if she told the police it had happened in the flat they would not believe her allegation. PP then gave an account of what she claimed had happened. If that were the truth, then a great deal of what she had said earlier was a complete fabrication. She said that the three of them had gone into the appellant’s flat. She had fallen asleep in a chair in the living room. She was awakened by a scream. She went to find BB and banged on a door which she thought was a bedroom. BB shouted that she would be out in a minute. A few seconds later, BB emerged, fully dressed, and said they were leaving. They left rapidly and PP asked what was wrong. BB would not say. Then she said that the appellant had raped her. PP went back to the flat to remonstrate with the appellant and there was a scuffle in which she pushed him and slapped his face and he punched her face and pushed her against a wall. The girls both left. PP telephoned MS and they met him at the bus station. Then they went to the police.

That statement plainly put a new complexion on the prosecution case and it was imperative that BB be re-interviewed. For reasons which are not entirely clear, that did not take place until 19 December. I would observe that, some years after the event, it is not entirely surprising that the reasons for delay are unclear. When seen, BB declared that everything she had said in her earlier statements was true. The rape had taken place outside in the car park. It was PP who was telling lies.

That new statement was faxed to the CPS on 20 December and a decision was taken, apparently on 2 January 2001, that the prosecution must offer no evidence. That was done on the following day.

The judge was critical of the conduct of the police investigation. I think that his criticisms were levelled at the period after what he called ‘the initial flurry of activity’. I say that because it does not seem to me that there was much to criticize in the early stages save that there was no search of the car park areas identified by the two girls. But, after that initial period, I think the judge was right to be critical of the police. Indeed, Mr Fisher did not seek to suggest that the investigation was as it should have been. The real problem as it appeared to the judge was that there was no guiding mind applied to the case. DC Smith was appointed as officer in charge of the case but was almost immediately assigned to another investigation, working in a different building from the one where this investigation was based. He failed to keep on top of this case, in particular by failing to send the samples for scientific examination. That is an unacceptable failing because some of those samples were capable of exonerating the appellant or at least of demonstrating that he was telling the truth when he said that the girls had come into his flat. The judge was also critical of DC Smith in respect of the excuse he apparently gave Michelle Brown for not having yet sent the samples for testing. The judge said that DC Smith had been economical with the truth when he said that the reason was that he expected a change in the evidence. That plainly could not have been a proper explanation; the samples should have been sent off in September and it was not known until 16 November that there might be a change of evidence. But the judge thought that DC Smith told that untruth in order to ‘cover his back’, realising that the samples should have been sent off much earlier. The judge did not think that this indicated any malice in the officer.

The judge concluded that there was never a stage when it could be said that the police acted without reasonable and probable cause. I have already dealt with the period before charge. Miss Booth submitted that, even if there had been reasonable and probable cause to commence the prosecution, there came a time when there no longer was reasonable and probable cause and it should have been brought to an end. Miss Booth did not contend that there had been no subjective honest belief in the existence of reasonable and probable cause to prosecute; her contention was that, examined objectively, a reasonable person would have realised that there was not. Her difficulty was in showing when that objective assessment would have resulted in that realisation.

In my view, there was no reason for anyone to think of discontinuance before 16 November. Indeed, on 15 November, the appellant’s solicitors had effectively admitted that there was a case to answer. On 16 November, it was known that PP was to say that part of her story was untrue; but it does not seem to have been known which part was untrue. I would agree that the police may be open to criticism for the delay in taking PP’s statement on 29 November. There may have been good reason for that, although none was demonstrated. But it must be borne in mind that both girls lived somewhat unconventional and unsettled lives. It may not have been easy to locate PP. But even if there was no good reason for that delay, the delay does not affect the continuing reasonable and probable cause to continue with the prosecution. After PP had said that the girls had been in the appellant’s flat, there was good reason to be concerned about the ability of the Crown to adduce such evidence as would justify the court in convicting the accused. But until BB had been re-interviewed the position as to the rape would remain unclear. I feel bound to say that, whatever BB said when asked, the prospects of conviction had been greatly reduced by PP’s assertion that part of her story was untrue. But I do not think it could be said that, as soon as the case was diminished in its cogency as it was by PP’s new statement, there were no longer objective reasons to think that the prosecution would not be able to adduce evidence capable of supporting a conviction.

Once BB had asserted that her story was true and the prosecution were faced with a stark conflict of evidence between its own witnesses, it was clear on any objective consideration that the prosecution could not properly proceed; there was no longer reasonable and probable cause. Under our system discontinuance is a decision for the CPS and not for the police. BB’s new statement was sent to the CPS the day after she made it. As the judge remarked, there was no delay in that. It was, to my mind, unfortunate that the CPS did not make its decision more quickly. But even if it would not have been possible to withdraw the case formally until after the New Year, it would have been possible for either the police or the prosecution to tell the appellant’s solicitors of the decision and to withdraw any further objection to bail. The appellant would not have had to spend Christmas in jail. That failure of communication was bad practice but, in my view, it cannot be said that the police continued with the prosecution after they no longer had reasonable and probable cause

As is apparent, I would entirely agree with the judge’s criticisms of the police. There was a general lack of direction and proper management of this investigation. Also, the police should have kept the appellant’s solicitors informed of developments. When the appellant was brought before magistrates for breach of bail on 27 November, the court should have been told that some change of story was expected from PP, even though it was not known what she would say. Also when PP’s new statement had been taken on 29 November, the contents should have been communicated to the appellant’s solicitors immediately. That would have triggered a fresh application for bail which may well have been successful. If in this country it were possible to sue for negligent police conduct, it may well be that the appellant would have been able to recover damages. However, it is not: see Elguzouli-Daf v Commissioner of Police for the Metropolis [1995] QB 335. Miss Booth drew our attention to the case of Hill v Hamilton-Wentworth Regional Police Services Board [2007] SCC 41 where the Supreme Court of Canada has decided that, in that jurisdiction, such an action should be available.

In my judgment, the appeal in respect of malicious prosecution fails because the appellant has been unable to demonstrate that the judge was wrong to hold that there was never a time when the police did not have reasonable and probable cause to bring and continue the prosecution. Strictly speaking it is not necessary to say anything about malice. I do so, briefly, only out of respect for Miss Booth’s interesting submissions on this topic.

Miss Booth’s submissions had to proceed on the basis that she would succeed in persuading the court that, on objective examination, there was no reasonable and probable cause for beginning or continuing the prosecution. Her submissions fell into two parts. First, she submitted that, even on the state of English law as it presently is, there was evidence of malice in the present case and the judge had been wrong to say that there was not. Second, she submitted that this court ought to lower the threshold requirement for malice to be proved in cases of malicious prosecution in order to comply with article 5(1)(c) of the European Convention on Human Rights (ECHR).

As to her first point, she submitted that there was some direct evidence of malice and a good deal from which malice should be inferred. She accepted that the standard definition of malice is that it must be shown that the prosecutor acted from a motive other than a legitimate desire to bring the accused to justice; it was not necessary for the claimant to prove what that other motive was.

The direct evidence she wished to rely on was the judge’s finding that, when asked about the samples which were to be submitted for forensic examination, D C Smith had been economical with the truth and had made an excuse designed to ‘cover his back’. I cannot accept her submission. I do not consider that either D C Smith’s failure to send the samples off or his alleged untruth about why he had not done so amount to evidence of malice. In my view, that evidence tends to suggest that D C Smith was being dilatory in his pursuit of the prosecution rather than that he was showing a desire to pursue it for ulterior motives.

Miss Booth also submitted that malice should be inferred from the whole of the evidence of the investigation. She had earlier accepted that at all times the police had subjectively believed in the truth of the allegations. It will always be difficult to infer malice where there is an honest belief in the allegations. I agree with Miss Booth that there was much to criticise in the police investigation. I agree with the judge that the case did not receive the attention it required. The main problem was that the officer nominally in charge of the case had his mind on something else. He appears to have forgotten to sort out which of the samples should be sent for examination and which would not be relevant. He did not progress the collection of the additional statements as he should have done when it emerged that PP was going to change her evidence. He did not communicate with the appellant’s solicitor as he should have done. But none of these failings suggests that he was continuing the prosecution for an improper motive. Rather they all suggest that he was not advancing it as well as he should have done. It seems to me that the judge was quite entitled to find that there was nothing to suggest that D C Smith was actuated by any improper motive.

Miss Booth’s second submission was that, in this jurisdiction, the burden of proving malice which lies on a claimant is unduly onerous. She submitted that malicious prosecution is an out of date and inadequate remedy. It provides no redress for victims of investigatory or prosecutorial maladministration. She compared the position in England and Wales with that in other jurisdictions. She took us to cases from some jurisdictions in the United States of America where the burden of proving malice is reversed where there has been a holding of no reasonable and probable cause. I can see the good sense of such a rule. However, it is not the rule in this jurisdiction. She also referred to the Canadian case of Hill which I have already mentioned where the tort of malicious prosecution has for practical purposes been superseded by the tort of negligent prosecution, proof of which imposes a lesser burden on the claimant. She submitted that, although the House of Lords ruled in Elguzouli-Daf that no such tort existed in this jurisdiction, Lord Steyn left open the possibility of further development of remedies in connection with prosecutions, possibly under the influence of the European Court of Justice. She invited this Court to take a fresh look at the requirement of proving malice in the light of article 5(1) of the ECHR which, so far as material provides:

Article 5(5) provides an enforceable right to compensation for infringement of this right and article 13 provides the right to an effective remedy.

Despite the attractive way in which Miss Booth advanced her submissions, I cannot see how article 5 can help her. Miss Booth cannot contend that the appellant’s article 5 right had been infringed. He had been arrested and deprived of his liberty for the purpose of bringing him before a competent legal authority on suspicion of having committed an offence and in accordance with a procedure prescribed by law. Reasonable suspicion is a low threshold; in this jurisdiction it is the threshold which justifies arrest. A higher threshold is required before the commencement of a prosecution by preferring a charge. It seems to me that the wording of article 5 imposes a rather lower requirement on the authority which deprives the individual of his liberty than do the present requirements of the tort of malicious prosecution. Put another way, I do not think that the words of article 5 suggest that there is any need for the burden on the claimant to prove malice to be reduced.

Miss Booth stressed that, where there is a lack of honest belief in the truth of the allegation and the adequacy of the evidence available to prove it, the courts should be willing to infer the necessary degree of malice. I entirely agree. If the court holds that there was no honest belief in the validity of the prosecution, the court may well be ready to infer that the prosecutor has proceeded from some motive other than a legitimate desire to bring the accused to justice. In such circumstances, it may not greatly matter where the burden of proof lies. But in the present case, Miss Booth expressly acknowledged that the officers did subjectively believe in the validity of the allegations; her complaint was that this was irrational and any objective consideration would have produced a different decision. It is axiomatic that it will be more difficult to prove malice in a case in which there was an honest but irrational belief in the validity of the allegation. That was what Miss Booth hoped she would be able to do. Because she failed to prove that the prosecution was not objectively justified, proof of malice is academic in this case. But even if Miss Booth had persuaded me that, as from say, 29 November 2000, continuance of the prosecution could not be objectively justified, I would still not be prepared to hold that continuance of it suggested malice. To my mind, continuance, if inappropriate, suggested only a lack of direction and careful thought. It did not suggest a desire to achieve a conviction regardless of justice or the merits.

For those reasons, I would dismiss the appeal against the judge’s decision on malicious prosecution.

The judge dealt with this very briefly; so did Miss Booth on the appellant’s behalf. The judge said that to succeed the claimant had to show that the police officer had acted in a way which amounted to a malicious abuse of his office. He held that that had not been shown. Miss Booth accepted that she could not succeed on misfeasance unless she could show malice. She submitted that the judge should have found malice; her reasoning was the same as that advanced in the claim for malicious prosecution. For reasons I have already given, that argument fails. Accordingly, I would also dismiss the appeal in respect of misfeasance.

I agree.

I also agree.