Spencer v Chief Constable of the West Midlands Police

In a claim for malicious prosecution, the existence of reasonable and probable cause is determined by the judge in light of facts found by the jury. Disputed facts relevant to that issue should be left to the jury. The prosecutor’s honest belief is relevant, but should be left to the jury only where there is affirmative evidence that the prosecutor lacked such belief. Malice alone does not establish absence of reasonable and probable cause. A jury’s rejection of parts of the prosecution case does not, without more, make the prosecution malicious. An appellate court will not entertain a new detention argument which was not advanced at trial. An award of damages for assault will not be disturbed merely because exemplary or aggravated damages were sought.

The claimant was acquitted of affray and assault after an incident involving two police officers. He subsequently sued the Chief Constable, alleging assault, wrongful arrest and detention, and malicious prosecution. At trial, the jury found that the claimant had raised his hands in circumstances causing an officer reasonably to believe that he was about to strike, but rejected several other allegations concerning his conduct. The judge awarded £4,000 for assault but rejected the malicious-prosecution claim and made no separate award of exemplary damages. The claimant renewed an application for permission to appeal, challenging the ruling on reasonable and probable cause, the length of detention, and the damages award.

1. Application refused. The Court of Appeal, comprising Pill LJ and Chadwick LJ, refused permission to appeal, with costs. Enforcement and, if necessary, quantum were referred to a costs judge.
2. A claimant alleging malicious prosecution must establish prosecution by the defendant, acquittal, absence of reasonable and probable cause, and malice. The existence of reasonable and probable cause is for the judge. Disputed facts relevant to that question are for the jury: Herniman v Smith [1938] AC 305.
3. The question whether the prosecutor honestly believed the facts relied upon is relevant to reasonable and probable cause, but should not be left to the jury unless there is affirmative evidence of lack of honest belief. Evidence of malice does not of itself establish lack of honest belief: Glinski v McIver [1962] AC 726.
4. The jury’s rejection of parts of the police officers’ account did not itself negate reasonable and probable cause. The finding that the claimant had raised his hand in a way which caused an officer to believe that he was about to be struck supplied a sufficient basis for the judge to reject the malicious-prosecution claim. The proposed complaint about the length of detention had not been argued at trial and was not open on appeal. The pleading also did not identify the newly advanced basis for alleging lack of reasonable and probable cause.
5. The judge was not at fault in declining to make a separate exemplary-damages award or in assessing damages for the assault at £4,000, having regard to Thompson v Commissioner of Police of the Metropolis [1997] All ER 762.

• Court of Appeal (Civil Division): Application for permission to appeal refused, with costs.
• Wolverhampton County Court: His Honour Judge Geddes awarded £4,000 damages for assault and rejected the claims concerning wrongful arrest and detention and malicious prosecution.