Larrier v Merseyside Police

In claims for false imprisonment and malicious prosecution arising from police action, the judge decides whether the defendant had lawful justification or reasonable and probable cause. However, disputed facts material to that assessment belong to the jury. Where conflicting evidence concerns whether the claimant committed the alleged offence, the judge must leave that issue to the jury and then apply the legal standard to the facts found. Police good faith and the reliability of their account cannot be assessed independently where that account is central to the justification. Removing the issue from the jury and deciding the factual dispute personally is an error of law requiring a retrial.

The claimant appealed against the Liverpool County Court’s dismissal of his claims for false imprisonment and malicious prosecution. The claims arose from his arrest, roadside detention and prosecution for alleged speeding. The trial judge discharged the jury, decided that the police had reasonable cause to stop and prosecute him, and dismissed the claims. The central issue before the Court of Appeal was whether the judge had wrongly withheld from the jury the disputed question whether the claimant was speeding, although that question materially affected the assessment of reasonable and probable cause.

1. The appeal was allowed. The trial judge had been wrong to decide that no factual issue should be left to the jury.
2. In a false imprisonment claim where detention is admitted, the defendant bears the burden of proving lawful detention on the balance of probabilities. In malicious prosecution, the claimant must prove the necessary ingredients, including that the prosecution lacked reasonable and probable cause and was malicious: Gregory v Portsmouth City Council [2000] 1 AC 419.
3. The judge decides whether evidence raises a factual issue fit for the jury, identifies the facts relevant or requisite to the legal question, and determines whether police conduct was reasonable. Where there is conflicting evidence on a relevant fact, the jury must resolve that conflict. The judge then applies the legal standard to the facts established: Dallison v Caffery [1965] 1 QB 348; Balchin v Chief Constable of Hampshire Constabulary [2001] EWCA Civ 538.
4. Whether the claimant was speeding was a material factual issue. The police relied on their account that they had followed him for a substantial distance while recording a speed of 95 mph. If the jury rejected that account, the police evidence about what the speedometer showed and what they honestly believed could not be assessed independently. The issue therefore had to be left to the jury.
5. The respondent’s alternative argument that the officers had power to stop the claimant provided they had not acted capriciously did not remove the factual issue. That was not the pleaded or evidential basis of the case. The only suggested basis for showing that the stop was non-capricious was the alleged speeding or reasonable suspicion of it.
6. The order dismissing the claims was set aside. The claims for false imprisonment and malicious prosecution were remitted to the county court for a retrial or rehearing before a different judge and jury. Costs were awarded to the claimant in the Court of Appeal and below, subject to assessment if not agreed.

• Court of Appeal (Civil Division): [2004] EWCA Civ 246. Appeal allowed; the county court order was set aside and the claims were remitted for a retrial or rehearing.
• Liverpool County Court: On 7 October 2003, His Honour Judge MacMillan, sitting with a jury, dismissed the claims for false imprisonment and malicious prosecution.