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Cite as: [2009] EWCA Civ 1215

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Neutral Citation Number: [2009] EWCA Civ 1215
Case No: B2/2009/0511

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE (BIRMINGHAM DISTRICT REGISTRY)
HIS HONOUR JUDGE PEARCE-HIGGINS QC

Royal Courts of Justice
Strand, London, WC2A 2LL
20/11/2009

B e f o r e :

LORD JUSTICE PILL
LORD JUSTICE DYSON
and
LORD JUSTICE LONGMORE

____________________

Between:
The Ministry of Justice (sued as the Home Office)
Appellants
- and -

Jason Samuel Scott
Respondent

____________________

Mr Jeremy Johnson (instructed by The Treasury Solicitor ) for the Appellants
Ms Heather Williams QC and Mr Steven Powles (instructed by Hickman & Rose, Solicitors) for the Respondent
Hearing date : 21 October 2009

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Pill :

  1. This is an appeal against the order of His Honour Judge Pearce-Higgins QC dated 19 February 2009 whereby he dismissed an appeal by the Home Office ("the appellants") against a decision of Mrs Recorder Wilson dated 26 June 2008. The Recorder dismissed the appellants' application to strike out, or alternatively to grant the appellants summary judgment on, a claim by Jason Samuel Scott ("the respondent") for malicious prosecution.
  2. The respondent was a serving prisoner at HMP Long Lartin when, on 30 June 2002, an incident occurred between him and prison officers as a result of which he was prosecuted on charges of assaulting Hawkins, one of the prison officers, and of affray. He was acquitted on both charges. He brought a claim for damages against the appellants alleging assault and malicious prosecution by prison officers, for whom the appellants were vicariously liable. The appellants sought to strike out the claim for malicious prosecution on the ground that the prison officers were not in law the respondent's prosecutors for the purposes of the tort of malicious prosecution.
  3. In the leading case of Martin v Watson [1996] AC 74 at page 80, Lord Keith of Kinkel stated that it was common ground in that case that the ingredients of the tort of malicious prosecution were correctly stated in Clerk & Lindsell on Torts, 16th Ed (1989), at paragraph 19-05:
  4. "In action of malicious prosecution, the plaintiff must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious. The onus of proving every one of these is on the plaintiff".
  5. In the present case, the second element is admitted and it is accepted for the purposes of the application to strike out that the third and fourth elements are to be treated as capable of proof. It is claimed that the respondent, by the terms of that definition, was prosecuted by the appellants' employees. The appellants accept that, for the purposes of the appeal, it must be assumed that the respondent's allegations in relation to the incident are true.
  6. The allegations are set out in the particulars of claim. I refer to them in so far as is necessary for the purposes of this appeal:
  7. "At approximately 3.15 pm, the Claimant was escorted by prison officers to use one of two telephones in the wing. The telephone booths were located on the ground floor at one end of the wing near the wing office and behind or underneath some stairs.
    The claimant made two phone calls, the first to a man known as Bilal who owed him money, and the second to a friend, Mr. Cassie, to ask for assistance to get his money back. The Claimant was on the telephone for a total of 3 minutes and 11 seconds. While on the telephone with Mr. Cassie, the Claimant became upset over the money owed to him by Bilal, and raised his voice while on the telephone.
    Upon hearing the Claimant's raised tone, Prison Officer Hawkins banged on the door of the telephone and told the Claimant to terminate the call. At least four other officers surrounded the telephone booth including SO Careless, Officer Winkley, Officer Peel and Officer Culwick. The Claimant refused, stating that he was having a private conversation. Officer Hawkins unlocked the telephone booth and reached his arm in to terminate the call and told the Claimant 'You're finished now.' Officer Hawkins then grabbed hold of the Claimant's right arm and said 'Come on,' ordering him to return to his cell.
    The Claimant asked Officer Hawkins to let go of his arm. Officer Hawkins ignored the Claimant's request and ushered him out of the telephone booth by grabbing his arm. Outside the telephone booth, the Claimant repeated his request for Officer Hawkins to let go of his arm. Officer Hawkins released his grip and walked in front of the Claimant, ordering him back to his cell. At least five other officers were at the Claimant's side and rear escorting him back to his cell.
    At the area between the stairs and the office, the Claimant asked Officer Hawkins why he had grabbed him by the arm out of the telephone booth. Officer Hawkins turned to face the Claimant and nodded at the officers around the Claimant. Without any provocation, Officer Hawkins then punched the Claimant in the left eye. Immediately after being punched, the Claimant was grabbed by the arms by at least four other officers. The Claimant managed to struggle free and ran to the landing. The officers, led by Officer Hawkins, charged at the Claimant and surrounded him.
    The Claimant, fearing a further assault, screamed and flailed his arms around to prevent any further assault of him. Prison officers surrounded the Claimant and grabbed his arms and body and tried to force him backwards. The Claimant ended up falling forward with his face toward the floor. The Claimant's legs were held down. His arms were then twisted and his head was restrained. The Claimant was also kneed in the head. At least five officers were involved in the restraint."
  8. In his judgment, the judge stated: "the issue that arises is whether the circumstances are such that the prison officers (and therefore the Home Office) should be regarded as the prosecutor, although in fact the decision to prosecute was that of the West Mercia police and the CPS". Having referred to Martin v Watson [1996] AC 74, the judge stated: "the test is whether the complainant can be said to have procured the prosecution" and that "it must in every case be a matter of degree".
  9. The judge referred to the statements before him, statements from Officer Hawkins and the other officers involved and other evidence which, in his judgment, "did not amount to much". The judge continued:
  10. "It is clear that the officers reported that they had been assaulted see pages B34-38 and the statements recently provided to me. In addition it appears that officer Hawkins wanted a complaint made see page B8 in the middle. The Police summary is at page B59/60. The actual decision taken by the CPS on 19 December 2002 rested entirely on the officers' evidence see page B6.
    In my judgment the reality here is that once these prison officers had given their statements then a prosecution would follow, unless the statements taken together were incredible or there was very strong evidence to cast doubt on what these 5 officers were saying. I note the Police comment at page B59
    'Following the incident SCOTT then made complaint to the Police of assault on him by the prison officers'. There follows what looks like an exclamation mark which clearly indicates the view that the police took, when faced with the combined evidence from the prison officers.
    There was in reality no material actually or likely to be available to permit the decision maker to exercise a discretion or judgment as to whether this matter should proceed to trial. The circumstances were such that an important part of the action took place where CCTV cover was obscured and the only other possible witnesses were long-serving prisoners who would probably not be believed. There was complaint by prison officers of assault, with more than trivial injuries and no real evidence in opposition, other than Mr. Scott's version. The prison officers' complaints ensured that a prosecution would follow. In my judgment they procured the prosecution. Mr.áScott's case is clearly arguable and should be allowed to proceed."
  11. For the appellants, Mr Johnson submitted that the judge erred in law in failing to hold that the circumstances in which a complainant is to be regarded as the prosecutor are limited to cases where the facts relating to the alleged offence can be within the knowledge only of the complainant. The judge further erred in holding that evidence from persons other than the prison officers "did not amount to much" and in holding that there was no material actually or likely to be available to permit a decision-maker within the CPS, or the police force, to exercise a discretion or judgment as to whether to initiate criminal proceedings. It was further submitted that the judge was wrongly influenced in his decision not to strike out by the absence to the respondent of an alternative remedy. I say nothing about that ground, which is not pursued.
  12. The case of Martin arose out of a dispute between neighbours. A prosecution was brought because of a complaint made to the police by a woman that the claimant in the proceedings for malicious prosecution had indecently exposed himself to her. There were no other witnesses to the alleged offence. Eventually, the CPS offered no evidence and the claimant was discharged.
  13. A narrow approach to the definition of the tort had been advocated in the House of Lords as appears from the report. Lord Keith, with whom the other members of the House agreed, referred to Commonwealth authorities and stated, at page 84H:
  14. "In the absence of any countervailing authority in the English courts, I am of the opinion that the principles to be derived from the foregoing sources should be accepted as valid in English law."

    Lord Keith stated a test at page 86A:

    "In that case the realistic view is that the prosecution was initiated by the county court judge, the defendant being only technically the prosecutor. But that did not enable the defendant to escape liability. It was his own perjured evidence which had caused the judge to bind him over to prosecute. The present case is in a sense the converse. The defendant did desire that a prosecution should be brought but was not technically the prosecutor. The circumstance that a defendant in an action of malicious prosecution was not technically the prosecutor should not enable him to escape liability where he was in substance the person responsible for the prosecution having been brought."
  15. That approach is, in my respectful view, consistent with the authorities cited. In Commonwealth Life Assurance Society Limited v Brain [1935] (53 CLR 343), Dixon J, in the High Court of Australia, recognised, at page 379:
  16. "that no responsibility was incurred by one who confines himself to bringing before some proper authority information which he does not believe, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority . . . but, if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible".
  17. In Commercial Union Assurance Co. of NZ Ltd v Lamont [1989] 3NZLR 187, Richardson J, in the Court of Appeal of New Zealand, stated, at page 196: "a defendant who has procured the institution of criminal proceedings by the police is regarded as responsible in law for the initiation of the prosecution . . . that requires close analysis of the particular circumstances". Richardson J added, at page 199:
  18. "It does not follow that there is any call for modifying the test which has been developed in the decisions of this court for determining whether a third party is responsible in an action for malicious prosecution for criminal proceedings instituted by the police. What is required is a cautious application of that test where the police have conducted an investigation and decided to prosecute. The core requirement is that the defendant actually procured the use of the power of the State to hurt the plaintiff. One should never assume that tainted evidence persuaded the police to prosecute. In some very special cases, however, the prosecutor may in practical terms have been obliged to act on apparently reliable and damning evidence supplied to the police. The onus properly rests on the plaintiff to establish that it was the false evidence tendered by a third party which led the police to prosecute before that party may be characterised as having procured the prosecution."
  19. At the end of his speech in Martin, at page 89E, Lord Keith having also referred to Roy v Prior [1971] AC 470 stated:
  20. "Similar considerations apply to statements made to the police under circumstances where the maker falls to be regarded as having in substance procured the prosecution. There is no way of testing the truthfulness of such statements before the prosecution is brought. To deny any remedy to a person whose liberty has been interfered with as a result of unfounded and malicious accusations in such circumstances would constitute a serious denial of justice."
  21. That is a strong indication, in my view, that the judge applied the correct legal test. Has the complainant in substance procured the prosecution? Martin was a case within narrow confines in that the only evidence on the charge of indecent exposure was that of the complainant and the defendant. However, MráJohnson relied on the statement of Lord Keith at page 86H:
  22. "Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant."
  23. In his oral submissions, Mr Johnson deployed a series of propositions. While, for the purposes of the tort of malicious prosecution, a prosecution is usually brought by setting the law in motion against a claimant on a criminal charge, that is by laying an information or charging, there are some very special cases, which should be rare and exceptional, where the lay complainant can properly be regarded as bringing the prosecution. The law needs to take into account two policy considerations, on the one hand, the policy aim of providing a remedy to those subject to malicious and groundless prosecution and, on the other hand, the policy aim that members of the public should not be deterred, by the risk of subsequent litigation, from making complaints to the police.
  24. An important factor to be taken into account in balancing those considerations, submitted Mr Johnson, is that prosecutions by the CPS are now brought in accordance with the Code for Crown Prosecutors which requires the CPS to exercise an independent judgment.
  25. On the authorities, he submitted, a complainant is a prosecutor if (a) the complainant desires and intends that the person be prosecuted (which might be inferred where false information has been provided in bad faith and the complainant says he is willing to give evidence in court), (b) the prosecuting authority cannot exercise any independent discretion or judgment because the facts can only be within the knowledge of the complainant and (c) the complainant thereby procures the prosecution.
  26. The controversial proposition is that in (b). Mr Johnson submitted that if there is any evidence independent of that of the complainant, the person prosecuted cannot make a claim for malicious prosecution, whether or not the separate evidence supports that of the complainant. Thus in a case involving a sexual offence, the existence of any medical or scientific evidence, whether or not it supported the complainant and whether or not it incriminated the defendant, would make a claim for malicious prosecution impossible. Mr Johnson needs to put it so strongly because, on the present strike-out application, he can succeed only if the test is a very narrow one.
  27. Mr Johnson submitted that his proposition is supported by Lord Keith's reference, at page 86H in Martin, to facts that "can be within the knowledge only of the complainant". Mr Johnson referred to the decision of this Court in Mahon v Rahn (No.2) [2000] 1 WLR 2150. That was a complex case where the Serious Fraud Office ("SFO") instituted proceedings for fraud in connection with a share transaction. The proceedings were instituted after extensive investigation. Amongst the material considered was a letter concerning the share transaction from the Securities Association, a Financial Services Regulatory body. The SFO had carried out an extensive investigation and acquired a substantial volume of evidence independently of the Securities Association. It was held that the SFO, a skilled organisation set up to handle prosecutions involving serious fraud, had exercised its own independent discretion as to whether to prosecute.
  28. Brooke LJ, with whom Mantell LJ and Laws LJ agreed, drew a distinction, at paragraph 268, between "a simple case" like Martin and "a more complex case" in which a prosecuting authority is in receipt of evidence from a variety of sources and has to decide in the exercise of its discretion whether it is in possession of sufficient evidence to justify setting the law in motion against the defendant. At paragraph 269, Brooke LJ stated:
  29. "In a simple case it may be possible to determine the issue quite easily by asking these questions. (1) Did A desire and intend that B should be prosecuted? (2) If so, were the facts so peculiarly within A's knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment? (3) Has A procured the institution of proceedings by the professional prosecutor, either by furnishing information which he knew to be false, or by withholding information which he knew to be true, or both?"
  30. On the basis of that statement, Mr Johnson submitted that the circumstances in which a complainant is to be regarded as the prosecutor are limited to cases where the facts are so "peculiarly within the complaint's knowledge that the professional prosecutor is denied the opportunity to exercise any independent discretion or judgment".
  31. Mr Johnson also relied on public policy considerations mentioned both by Lord Keith and by Brooke LJ. A decision in favour of the respondent would tend to discourage members of the public from bringing criminal activities to the notice of the police, lest they should find themselves harassed by actions of malicious prosecution in the event that the alleged perpetrator of the offence were acquitted (a submission also considered by Lord Keith in Martin).
  32. Save that the word "peculiarly" is substituted for Lord Keith's word "only", Brooke LJ's question 2 is not materially different from the first part of Lord Keith's statement at page 86H in Martin. Brooke LJ has adopted Lord Keith's use of the expressions "virtually impossible" and "procuring" the prosecution. When using the words "simple case", Brooke LJ was, in my view, referring to the limited nature of the evidence and not to the ease with which a decision can be taken.
  33. At paragraph 267, Brooke LJ stated:
  34. "It appears to me, in the light of these authorities, that it would be unwise to be over-prescriptive in setting out the circumstances in which a lay informant may properly be regarded as the prosecutor, or as one of the prosecutors, for the purposes of the tort of malicious prosecution."

    It is noteworthy that, at paragraph 270, Brooke LJ stated that "in the more complex case it is likely to be more difficult" to apply the test advocated and that he would adopt the approach suggested by Richardson J in Commercial Union, at page 199, which I have already cited.

  35. Brooke LJ stated, at paragraph 246, that Lord Keith "was concentrating on a very simple case like Martin v Watson (or perhaps a simple case in which a limited number of malicious lay informants are acting in concert)". I agree that the passage at page 86H did so concentrate, and understandably so because that was the case to be decided, but read as a whole, Lord Keith's reasoning was not confined to that situation.
  36. After the hearing before this court, another constitution of the court gave judgment in Hunt v AB [2009] EWCA Civ 1092 where a claim of malicious prosecution had been made. Further written submissions were invited and provided by Mr Johnson and Ms Williams QC, for the respondent. In his further submissions, MráJohnson accepted that a decision by the CPS to pursue proceedings will not always make it inappropriate to regard the informant as the prosecutor. He submitted that the question is whether it was "virtually impossible" for the CPS to exercise a discretionary judgment.
  37. The case before this court in Hunt was very different from the present case. First, the facts were very different. An act of sexual intercourse took place between the complainant AB and a work colleague. He had always asserted that it was consensual and she had always asserted it was not. She did not go to the police but some years later a colleague in whom she had confided did so. The police approached AB and persuaded her to give evidence. She would never have made a complaint to the police and did not want the case brought. The police officer in charge of the case said that she had "applied a great deal of pressure and influence to make AB provide a statement for the purpose of a criminal investigation. She was consistently reluctant to support the criminal case . . . and I cannot stress enough how much pressure I put her under to assist the prosecution". The CPS report in the present case is in stark contrast with that in Hunt. As early as the third paragraph of his judgment in Hunt, Sedley LJ stated:
  38. "The factual answer to this appeal, however, is that the prosecutor manifestly was not AB, who had neither approached the police nor sought a prosecution of the appellant. Her role, albeit as the key witness, was limited to agreeing to give evidence and to doing so."
  39. That gives rise to the second difference which is that Hunt was decided on the question whether the complainant desired and intended that the defendant should be prosecuted. It did not turn on the second of the questions posed by Brooke LJ in Mahon, basing himself on Lord Keith at page 86H in Martin, but rather on the issue whether the CPS exercised an independent discretion, though the two issues are clearly linked. In the present case there can for present purposes be no doubt that the complainant desired and intended a prosecution.
  40. The third difference is that the judge in Hunt tried the question of the identity of the prosecutor as a preliminary issue but it was not, as it is in the present case, a preliminary issue tried on assumed facts. Blake J made findings of fact when deciding the issue.
  41. I have to remind myself that the court is deciding the particular case before it. In Hunt, all three members of the court were in no doubt about the result on the facts in that case but they nevertheless embarked on a detailed consideration of the scope of the tort of malicious prosecution. To some extent, especially when the present case, on the result achieved, is likely to proceed, this court has to do the same thing. I am conscious of the danger that, in doing so, and analysing judgments which in their turn are analysing earlier judgments one may by elaboration contribute to obscurity rather than to clarity. It is a danger to which our system, in particular with successive judgments of different constitutions of the Court of Appeal, is prone. I intend to limit my analysis of the judgments in Hunt, first, because they were clearly not intended to reverse or override statements of principle in the House of Lords and, secondly, because the factual differences are such that much of the analysis in Hunt is inappropriate on the present facts.
  42. Considerable weight must be given to the role of the CPS in initiating prosecutions. I agree with Moore-Bick LJ's analysis, at paragraph 81 in Hunt, of page 86H of Martin:
  43. "Mr. Warby relied primarily on the second sentence of the passage cited earlier which begins with the words "Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, . . . ". This sentence must be read in the context of what precedes it, that is, the giving of false and malicious information. In my view the authorities do not support the conclusion that an informant who provides information to the police about a matter which is solely within his own knowledge is always to be regarded as the prosecutor; indeed, Mr. Warby's submission, if correct, would involve attributing to an honest informant a desire and an intention that he may well not possess. Moreover, I do not think that in that passage Lord Keith was seeking to provide a definitive statement of the law. He was simply making two points which followed naturally from his discussion of Danby v Beardsley: first, that deliberately giving the police false information about another is evidence of a desire and intention that that person should be prosecuted; and second, that if the circumstances are such as to prevent the authorities from exercising their independent judgment, he can properly be treated as having brought about the prosecution. That is how this court in Mahon v Rahn (No.á2) appears to have understood the position: otherwise it would not have been possible for BrookeáL.J. to formulate the three-stage test suggested in paragraph 269 of his judgment."
  44. I also agree with Moore-Bick LJ's statement at paragraph 77 of Hunt:
  45. "However, cases vary and each case must be considered on its own facts. The question will always be whether the defendant actively procured the prosecution of the plaintiff."

    That involved, as Moore-Bick LJ stated at paragraph 69:

    ". . . active steps of some kind to ensure that a prosecution ensues (what Richardson J in [Lamont] described as "procuring the use of the power of the state"."

    It may involve "deliberate manipulation", as contemplated by Sedley LJ at paragraph 47 in Hunt, or the decision of the CPS being "overborne or perverted in some way by the complainant", as contemplated by Wall LJ at paragraph 59. But the circumstances in which it can be concluded that a complainant has procured a prosecution are not limited to these.

  46. Before expressing conclusions, I set out the facts relevant to the second ground of appeal, though the judge's summary of events, set out at paragraph 7 of this judgment, was fair and appropriate. It is claimed that the judge erred in stating that the evidence available to the CPS, in addition to the statements from the prison officers, when the decision to prosecute was taken, "did not amount to much". The decision to prosecute was taken by the CPS on 19 December 2002 and Mr Johnson agreed and asserted that that was the material date on which to assess whether the complainant (or complainants) was the prosecutor. The potential relevance of evidence other than that of the prison officers is of course that it might lead to and support a conclusion that an independent discretion as to whether to prosecute was exercised by the CPS.
  47. The police submission to the CPS was made on 28 November 2002. The prison officers had each completed "crime offence report CO1", a police document, on 1 July 2002. Statements were taken from them by the police between that date and 1 August 2002 when Officer Hawkins made his statement. It is not clear what, if any, further evidence was submitted to the CPS. A statement had been taken from the respondent.
  48. Mr Johnson sought to rely, as independent evidence available to the CPS, on a transcript of a contemporaneous telephone conversation involving Morrison, a fellow prisoner, who stated: "Well there's about 5 of them on top of him. Well he smacked a screw, he smacked about 3 or 4 times". Morrison later made a statement in which he said that the respondent acted in self-defence. (In their defence in the action, the appellants have alleged that the evidence of Morrison is "irrelevant and unworthy of belief".) Both Hawkins and the respondent were medically examined at the time but medical evidence was not produced to the CPS.
  49. The submission to the CPS states:
  50. "The assault occurred when SCOTT was removed from the cubicle. Despite being surrounded by officers he managed to assault Officer HAWKINS, in the following actions and whilst being restrained he also assaulted Officer CULWICK and Officer CARELESS, these were however, minor assaults. Following the incident SCOTT then made a complaint to the police of assault on him by the prison officers!"

    The exclamation mark is undoubtedly present indicating, as the judge found, the police view of the value of the respondent's evidence. The submission refers to the absence of relevant coverage from video cameras. It concludes by suggesting what summonses would be appropriate. It claimed that the investigation was complete.

  51. The advice of the CPS was provided on 19 December 2002 by MsáJáRosamond:
  52. "I have been asked to advise re the above named [the respondent]. Having reviewed the matter in accordance with the Code for Crown Prosecutors I advise that he be prosecuted for assault occasioning actual bodily harm, contrary to section 47 Offences against the Person Act 1861 upon Officer Hawkins and affray to reflect what happened immediately after the assault. I have considered both criteria in the code of sufficiency of evidence and public interest.
    The evidence seems clear re the assault and the ferocity of it. However, we will need medical evidence to support it.
    It seems clear from the witness statements that this was an unprovoked assault aggravated by the fact that the officer is trying to carry out his duties on the date in question. WINKLEY corroborates the events as does CULWICK who describes it as a frenzied assault. CARELESS confirms it was an unprovoked attack and O'HARA sees in the region of 10 punches plus the kick to the groin. It is essential that we have medical evidence to support the assault charge. Upon the evidence of HAWKINS it appears to be a Sec 47. HAWKINS describes internal swelling to the groin, a black eye, swelling to the head, pain to the base of the spine and the groin, and he states that he passed blood for 1 week and was off work for 3 weeks."
  53. I do not consider that the tort of malicious prosecution is confined to cases where the facts are "within the knowledge only of the complainant". When putting it in that way at page 86H of Martin, Lord Keith was considering the facts in Danby v Beardsley (1880) 43 LT 603 and Brooke LJ in Mahon was considering the "simple" case posited by Lord Keith.
  54. The test is that stated by Lord Keith at page 86A and 89E in Martin, already cited. It was applied to the facts of that case at page 86H, also cited. Must the complainant be "regarded as having in substance procured the prosecution"? Were the circumstances such that it was "virtually impossible" for the decision maker to exercise an independent discretion or judgment? I read the word "virtually" as meaning "in practical terms", the expression used by Richardson J in Commercial Union, and following as it does Lord Keith's earlier use of the expression "in substance the person responsible". Lord Keith repeated the expression that "the prosecution has been procured by the complainant" at page 86 of Martin. The test is to be applied cautiously (Commercial Union). A cautious approach will assist in safeguarding the public policy principle advocated. I find it impossible to hold that the test can only be satisfied in a case where the evidence is as limited in scope as that in Martin. The requirement is that the complainant has "procured the use of the power of the State to hurt the plaintiff" (Commercial Union).
  55. This is an application to strike out and the facts in the particulars of claim must be assumed. On those facts, it is plainly arguable that the prison officers desired and intended that the respondent should be prosecuted. The question is whether, on the facts, it is arguable that the prosecution was procured by the prison officers and the circumstances were such that it was virtually impossible for the CPS to exercise any independent discretion or judgment.
  56. I have not accepted that the right to bring an action for malicious prosecution is confined to cases in which there is a single prosecution witness with exclusive knowledge of the facts. Of course, it far from follows that the possibility of a claim will inevitably arise in a situation in which the prosecution evidence comes from a single source. The question whether it is open to a defendant in criminal proceedings to bring an action for malicious prosecution is fact sensitive, as was fully recognised in Hunt. The present issue is whether the prison officers can be said to have procured the prosecution, bearing in mind the potentially intervening role of the police and the CPS. Given the modern role of the CPS, I agree with Wall LJ and Moore-Bick LJ in Hunt that "cases in which an action for malicious prosecution would lie following a decision by the CPS to prosecute would be rare" (paragraph 58).
  57. I can put it briefly. The complaint was made by five prison officers, responsible public officials. The events occurred in the closed world of a prison in which the respondent was detained. Their statements were consistent with each other. Complaint was made to the police in clear and strong terms. It can strongly be argued before a jury that it was unrealistic to expect the CPS to take a decision other than to prosecute. The responsible solicitor advised a prosecution. She did so without first considering medical evidence, which she acknowledged would in due course be necessary. The decision of the CPS was entirely predictable and the five complaining officers would have expected no other. Indeed, they would have been dismayed if a different decision had been taken.
  58. I bear in mind the second ground of appeal which I have already considered. The availability of other potential evidence (for example from other prisoners) does not defeat an arguable case that it was the five prison officers who, by making the statements they did, in the circumstances they did, procured this prosecution. The CPS received statements alleging assault from 5 prison officers who were eye witnesses to an incident in the prison. Arguably, it was virtually, in practical terms, impossible for the CPS to exercise independent discretion in the face of such evidence. I give full weight to the need to protect those who complain to the police of alleged criminal conduct and also to the modern role of the CPS. I am, however, unable to hold that this claim that the prison officers had procured the prosecution, as that term is used in the authorities, should be struck out.
  59. The existence of five complainants rather than one complainant in the present case has not much featured in argument because Mr Johnson accepted that, for present purposes, the five can be treated in the same way as one would be. Brooke LJ, at paragraph 246 in Mahon, rightly contemplated a case of a limited number of lay informants "acting in concert". This aspect of the case may achieve greater prominence at the trial. I do not, of course, exclude the possibility of an argument at the trial based on the prison officers' expectations as to what the CPS would do before taking their decision but I do not regard that possibility as a proper basis for a strike-out.
  60. I would dismiss this appeal.
  61. Lord Justice Dyson :

  62. I agree with the judgments of Pill and Longmore LJJ.
  63. Lord Justice Longmore :

  64. The law in relation to the question whether a defendant in a civil action is rightly to be regarded as "the prosecutor" in criminal proceedings which have failed is in danger of becoming a little over-complicated. It is usually impossible to decide any issue about the bad faith elements of malicious prosecution in summary proceedings (whether on a strike out application or an application for summary judgment). But it may well be appropriate summarily to decide the more modest question whether the circumstances of the case are such as to enable the professional prosecutor (usually the CPS) to exercise an independent judgment in the matter. If it is plain that the circumstances are such as to enable the prosecutor to exercise an independent judgment, then a claim for malicious prosecution should not usually go to trial.
  65. I derive this test from paragraphs 81 and 84 of the judgment of Moore-Bick LJ in Hunt v AB [2009] EWCA Civ 1092:-
  66. "the circumstances are such as to prevent the authorities from exercising their independent judgment."

    and

    "unable (orů.. virtually unable) to exercise independent judgment."

    Moore-Bick LJ in turn derived it from para. 269(2) of the judgment of Brooke LJ in Mahon v Rahn (No 2) [2000] 1 WLR 2150 and ultimately from the passage in Lord Keith's speech in Martin v Wilson which my Lord has quoted. Moore-Bick LJ understood Sedley LJ to have agreed with this test.

  67. To my mind it is not plain that the circumstances of the present case were such as to enable Ms Rosamond to exercise an independent judgment on 19th December 2002 when she advised that Mr Scott should be prosecuted for assault and affray. She had little option but to accept the account given by the prison officers. There is no evidence that the police tested the evidence of the prison officers when they were giving their statements or were in any position to do so. Indeed the exclamation mark at the end of the police submission to the CPS of 28 November 2002 rather indicates that no statement from Mr Scott giving his account of the matter was available to Ms. Rosamond. Nor was any medical evidence. No doubt a clearer picture may emerge at trial but the action should not be dismissed at this stage.
  68. I should perhaps emphasise that, in so concluding, I make no criticism of Ms Rosamond of any kind whatever. She would no doubt robustly assert that, of course, she was exercising an independent judgment; so she was in the sense that she was making up her own mind on the information available to her. But "independent judgment" in the sense used by Lord Keith, Brooke LJ and Moore-Bick LJ must mean judgment exercised independently of the mere assertion of the potential witnesses for the prosecution. Of that I cannot, at the moment, on the facts of this case, be sure.
  69. For these reasons and the reasons given by Pill LJ, I agree that this appeal should be dismissed. I particularly agree with the first sentence of paragraph 38 of my Lord's judgment to the effect that proceedings for malicious prosecution cannot be regarded as being confined to cases in which the facts are "within the knowledge only of the complainant."


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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/1215.html