BT v Crown Prosecution Service

In malicious prosecution, a claimant must prove favourable termination, absence of reasonable and probable cause, and malice. Reasonable and probable cause is assessed objectively by the judge on the material available to the prosecutor. The prosecutor need only have a proper case to place before the tribunal, not certainty of guilt. A failure by CPS lawyers to review a case, or other negligence or incompetence, does not by itself establish absence of reasonable and probable cause or malice. Malice requires evidence of an improper motive. It cannot be inferred merely from an honest but unreasonable assessment or inadequate investigation.

BT brought proceedings against the Crown Prosecution Service alleging malicious prosecution and misfeasance in public office. The criminal prosecution followed allegations of kidnapping and indecent assault. The magistrates committed BT for trial, but at the Crown Court the prosecution offered no further evidence after evidence from the complainant and another witness, and BT was acquitted.

BT alleged that the CPS should have discontinued the prosecution after the committal proceedings. Judge Mellor discharged the jury and dismissed the civil claim. The appeal concerned only malicious prosecution and the question whether the claim should have been left for a jury.

1. Appeal dismissed. The three members of the court agreed that the claim failed because the continuation of the prosecution was supported by reasonable and probable cause and there was no evidence of malice.
2. Malicious prosecution requires proof of prosecution, favourable termination, absence of reasonable and probable cause, and malice. Reasonable and probable cause is assessed objectively. The judge must determine whether the known facts and information reasonably justified the prosecution. The prosecutor need not be satisfied of guilt; it is sufficient that there is a proper case to place before the tribunal. The formulation in Hicks v Faulkner (1878) 8 QBD 167, as approved in Herniman v Smith (1938) AC 305, does not provide a substitute for the ordinary rule.
3. The court rejected the contention that the CPS’s failure to conduct a post-committal review, contrary to the Code for Crown Prosecutors, established liability. Negligence or incompetence is not actionable in this context and cannot be converted into malicious prosecution. The approach in Elguzouli-Daf v Commissioner of Police for the Metropolis [1995] QB 335 was applied.
4. On the evidence, the complainant’s consistent account, its corroboration, BT’s reaction on arrest, the evidence about prescriptions in his car, and the possibility that the other witness was mistaken or unreliable provided a proper basis for leaving the issue to a jury. The apparent alibi did not eliminate reasonable and probable cause.
5. Malice requires evidence of an improper motive. The absence of reasonable and probable cause does not automatically establish malice where the prosecutor may have held an honest but unreasonable belief. Negligence or incompetence alone cannot justify leaving malice to the jury. Glinski v McIver (1962) AC 726 and Brown v Hawkes [1891] 2 QB 718 supported that analysis.
6. Judge LJ and Chadwick LJ added that claims alleging negligence should be scrutinised carefully so that the immunity from negligence claims is not circumvented by pleading malicious prosecution. The formal order was appeal dismissed, with the stated legal-aid costs directions.

1. Court of Appeal (Civil Division) On 16 December 1997, the court dismissed BT’s appeal concerning malicious prosecution: [1997] EWCA Civ 3000.
2. First instance at Norwich Judge Mellor discharged the jury and dismissed BT’s claim on 19 November 1996. No separate citation for that decision was stated in the judgment.