Palomares v The Thames Valley Police

In malicious prosecution, malice, absence of honest belief and absence of reasonable and probable cause are distinct questions. Malice does not establish lack of reasonable and probable cause, and a jury should not be asked about honest belief unless affirmative evidence supports that issue. The judge must identify disputed facts, direct the jury on the elements of each alleged offence, and require it to reconcile the evidence rather than choose wholesale between competing accounts. A failure to do so may cause a substantial wrong and require the verdict and judgment to be set aside and the matter retried. Loss of employment also requires proper directions on legal causation and whether the loss would have occurred independently.

The Chief Constable appealed from a Reading County Court judgment entered after a jury awarded the claimant £55,200 and interest for false imprisonment and malicious prosecution. The jury found that the claimant had used abusive language, that his arrest was explained to him, that he had not been charged as soon as reasonably practicable, and that the officers did not honestly believe he was guilty of the four offences originally charged.

The appeal challenged the consistency of those findings, the directions on honest belief, reasonable and probable cause, the individual offences and damages, and the award for loss of employment. The central issue was whether the summing-up enabled the jury to determine the legal issues separately and reliably.

1. Disposition. Lord Justice Beldam delivered the leading judgment. Lord Justice Ward agreed with the conclusion and added observations; Lord Justice Schiemann agreed with the course proposed. The appeal succeeded. The jury’s decision and the judgment based on it were set aside, and the matter was ordered to be retried.
2. Malicious prosecution. The claimant had to establish absence of reasonable and probable cause and malice. Those requirements were distinct from the question whether the officers honestly believed in the case they put forward. Malice may coexist with an honest belief that there were proper grounds for prosecution and, by itself, did not prove want of reasonable and probable cause. The court relied on Glinski v McIver [1962] AC 726 for the need to keep these questions separate.
3. Functions of judge and jury. The judge must determine whether reasonable and probable cause existed, while the jury determines disputed facts relevant to that issue. A question about honest belief should not be left to the jury without affirmative evidence capable of supporting absence of that belief. In a case where the prosecutor’s own evidence is central, an acquittal or mistaken account does not itself establish absence of reasonable and probable cause. Honest belief in the facts as stated may provide cause, whereas consciously putting forward a false case will not.
4. Directions in the present case. The evidence was not a simple contest in which one side was wholly truthful and the other wholly false. The claimant’s interview created substantial common ground with the officers’ evidence. The judge failed to identify the underlying facts, direct the jury on the elements of the individual offences, or explain how question 4 should be approached if questions 1 and 2 were answered for the defendant. The jury’s reference to no reasonable belief suggested that it may have applied the wrong test. These omissions deprived the defendant of a reasonable prospect of a favourable verdict and caused a substantial wrong or miscarriage.
5. Damages and further guidance. There was no proper legal basis for the £30,000 award for loss of employment. The jury required directions on the causal connection between the prosecution and the dismissal, including whether the employer’s decision would have caused the loss independently. The court declined, in this case, to extend the approach discussed in John v MGN Limited [1996] 2 AER 35 by giving guidance on comparable personal-injury awards. There was no order for the costs of the appeal; costs below were to follow the event, with legal-aid taxation of the claimant’s appeal costs.

• Court of Appeal (Civil Division) [1996] EWCA Civ 709 (11 October 1996): appeal allowed; jury decision and judgment set aside; retrial ordered.
• Reading County Court (6 July 1995): His Honour Judge Holden and a jury awarded damages for false imprisonment and malicious prosecution.