McHarg v Chief Constable of Thames Valley Police

For malicious prosecution, the claimant must establish prosecution, favourable termination, absence of reasonable and probable cause, and malice. Reasonable and probable cause requires an honest belief in guilt based on reasonable grounds which, if true, would lead an ordinarily prudent person to conclude that the accused was probably guilty.

The prosecutor must investigate whether there is reasonable and probable cause for prosecution, rather than whether a possible defence exists. Malice does not itself establish absence of honest belief. On an application for summary judgment, the court asks whether the claim has a real prospect of success, considering the evidence at its highest.

The claimant, a police officer, was charged with rape after an investigation and a decision by the Crown Prosecution Service to institute proceedings. The proceedings were later discontinued when the complainant no longer wished to give evidence.

He brought a claim for malicious prosecution against the Chief Constable. The defendant applied for summary judgment under CPR 24.2, arguing that the claimant could not establish prosecution by the defendant, absence of reasonable and probable cause, or malice. The central issues were whether the evidence disclosed a real prospect of proving want of reasonable and probable cause or malice.

1. Summary judgment. The application under CPR 24.2 was determined first. The test is a high one, but the court had to decide whether the claim had a real prospect of success on the evidence, taken at its highest.
2. Reasonable and probable cause. The claimant had to show an absence of reasonable and probable cause. That requires consideration of the prosecutor’s honest belief and the objective grounds supporting it. The prosecutor’s duty is to ascertain whether there is reasonable and probable cause for prosecution, not to investigate whether there is merely a possible defence.
3. The information supplied to the CPS included the material matters relied upon concerning the complainant’s account, the medical evidence, the circumstances of the alleged intercourse, and the parties’ intoxication. The CPS was not misled by omission or misrepresentation. The evidence therefore disclosed no real prospect of proving absence of reasonable and probable cause.
4. Honest belief and malice. The honesty of the prosecutor’s belief is an essential ingredient. That issue should reach the jury only where there is affirmative evidence of lack of honest belief. Evidence of malice does not itself permit that inference. The assumed facts concerning DI Colchester’s attitude towards Dr Barker were consistent with a belief that reasonable and probable cause existed and did not provide evidence of deliberate concealment or misrepresentation.
5. The inappropriate appointment of DI Colchester, the failure to interview certain witnesses, and the complainant’s withdrawal from the proceedings did not materially support want of reasonable and probable cause or malice. The arguments that those matters could affect the charging decision were fanciful.
6. The court did not decide whether the police were the prosecutor for the purposes of the tort, because the claim failed on reasonable and probable cause and malice. Summary judgment was entered for the defendant.