Matin v Commissioner of Police of the Metropolis

In a malicious prosecution claim, malice does not by itself establish a want of reasonable and probable cause or an absence of honest belief. The judge determines whether reasonable and probable cause was lacking, with the assistance of the jury on disputed facts. The question of honest belief should be left to the jury only where there is affirmative evidence that the prosecutor lacked it. A prosecutor must investigate whether there is reasonable and probable cause, but need not test every possible defence. At the summary judgment stage, the court assesses the evidence available when the prosecution was initiated. Evidence which was inadmissible or unresolved at trial may nevertheless contribute to reasonable and probable cause. The appeal was dismissed because the handwriting evidence and surrounding circumstances supplied reasonable and probable cause, and there was no evidence of lack of honest belief.

The claimant brought proceedings arising from his arrest, a search of his home and a discontinued prosecution for attempting to obtain property by deception. Master Trench struck out the malicious prosecution claim on an application under CPR 24.2. Garland J restored claims for wrongful arrest and conspiracy but upheld the striking-out of the malicious prosecution claim. The claimant appealed to the Court of Appeal on the limited question whether evidence of malice, or an alleged absence of honest belief, required the issue of reasonable and probable cause to be left to a jury. The central issue was whether the malicious prosecution claim had a real prospect of success on the evidence available when the prosecution was commenced.

1. Appeal dismissed. The three-member court agreed that the malicious prosecution claim had no real prospect of success. The order below stood, with costs. Permission to appeal to the House of Lords was refused.
2. The tort requires prosecution by the defendant, favourable termination, absence of reasonable and probable cause, and malice. The first two requirements were satisfied and malice remained arguable, but the third requirement was not established. The judge decides whether reasonable and probable cause was lacking, while the jury decides disputed facts relevant to that issue.
3. Following Herniman v Smith and Glinski v McIver, reasonable and probable cause requires an honest belief in guilt founded on reasonable grounds. The prosecutor need investigate whether there is reasonable and probable cause for prosecution, rather than every possible defence. The evidence is assessed at the date the prosecution was initiated.
4. Malice and want of reasonable and probable cause are distinct issues. Malice may coexist with an honest belief in guilt and cannot, without more, support an inference that the prosecutor lacked honest belief. The issue of honest belief should reach the jury only if there is affirmative evidence of its absence.
5. The handwriting expert’s report, together with the surrounding evidence, supplied reasonable and probable cause. Difficulties of admissibility and conflicts in the evidence did not prevent reliance on that material at the initiation stage. Clements v Ohrly was confined to the proposition that handwriting similarity alone is insufficient; this case involved additional evidence and modern expertise.

• Court of Appeal (Civil Division): [2002] EWCA Civ 907 dismissed the appeal and upheld the refusal to restore the malicious prosecution claim.
• Queen’s Bench Division: Garland J restored the wrongful arrest and conspiracy claims but upheld summary judgment on malicious prosecution.
• Master Trench: on an application under CPR 24.2, struck out the malicious prosecution, wrongful arrest and false imprisonment claims, leaving trespass.