Isaac v West Midlands Police

Malicious prosecution requires a prosecution, acquittal, absence of reasonable and probable cause, and malice. Reasonable and probable cause has both an objective and a subjective element: the prosecutor must have objectively reasonable grounds and an honest belief in them. Malice alone cannot establish absence of reasonable and probable cause, although absence of reasonable and probable cause may support an inference of malice.

A jury may accept part of a defendant’s evidence and reject the remainder. A suspicion sufficient to justify arrest does not necessarily establish an honest belief sufficient to justify prosecution. Aggravated and exemplary damages serve different purposes. An award of exemplary damages does not require an award of aggravated damages.

The claimant sued the Chief Constable after being arrested during a police operation and prosecuted for public order and assault offences. He was acquitted and claimed damages for assault, false imprisonment and malicious prosecution.

A jury found for the claimant and awarded damages, including exemplary damages, but made no award for aggravated damages. The Birmingham County Court entered judgment for him. The defendant appealed against the malicious prosecution finding and related damages. The claimant cross-appealed against the absence of aggravated damages.

The central issues were whether the jury’s findings were inconsistent, particularly as to reasonable and probable cause and honest belief, and whether exemplary damages could properly be awarded without aggravated damages.

1. Appeal and cross-appeal dismissed. The jury’s findings were capable of standing together. It was open to the jury to find that the police officer had a suspicion sufficient to justify the arrest for the public order offence, while also finding that he lacked an honest belief that the claimant was guilty of the charges eventually preferred.

2. Per Lady Justice Hale, the tort of malicious prosecution has four ingredients: prosecution, acquittal, absence of reasonable and probable cause, and malice. Under Glinsky v McIver [1962] AC 726, reasonable and probable cause requires objectively reasonable grounds and an honest belief in those grounds. Malice alone cannot establish absence of reasonable and probable cause, although the absence of reasonable and probable cause may support an inference of malice.

3. The jury had not been asked whether the claimant had struck the officer after arrest in the manner alleged. The officer’s alleged remark that the police would think of something later was capable of bearing on his honest belief in the charges, not merely on malice. The jury were entitled to take a middle course by accepting some parts of the police evidence and rejecting others. The malicious prosecution finding was therefore sustainable.

4. The guidance in Thompson v The Commissioner of Police for the Metropolis [1998] QB 498 did not require aggravated damages to be awarded whenever exemplary damages were awarded. Aggravated damages compensate for injury aggravated by humiliating, insulting, malicious or oppressive conduct. Exemplary damages exceptionally punish oppressive or arbitrary conduct where basic and aggravated compensation is inadequate. The jury could award exemplary damages while making no award of aggravated damages, particularly in light of the judge’s direction concerning the minimum level of aggravated damages.

5. The respondent was awarded the costs of the appeal, excluding the costs of applying for leave to cross-appeal. The judgment debt was to be paid within 28 days.

• Court of Appeal (Civil Division): dismissed the defendant’s appeal and the claimant’s cross-appeal from judgment entered by His Honour Judge Bruce Coles QC in Birmingham County Court on 21 September 2000.