Clifford v The Chief Constable of the Hertfordshire Constabulary

Police officers may remain potentially liable for malicious prosecution or misfeasance in public office after the Crown Prosecution Service assumes conduct of a prosecution. Liability may arise where police failures in supplying material information are instrumental in the prosecution continuing. CPS review does not automatically absolve the police, although it is relevant to whether reasonable and probable cause existed.

Reasonable and probable cause is assessed objectively on the evidence available, while recognising that a prosecutor need not investigate every possible defence. In internet-image cases, downloading may constitute making, and possession may arise where the defendant knowingly downloads or retains an image. On the facts, the charges were reasonably brought and their continuation remained justified until further expert evidence removed any realistic prospect of conviction.

The claimant sought damages from the Chief Constable for malicious prosecution and misfeasance in public office arising from his prosecution for making and possessing indecent images of children, together with an incitement charge. The charges were laid by a police officer in July 2004. The Crown Prosecution Service later assumed responsibility for the prosecution, discontinued the incitement count, and ultimately offered no evidence on the remaining counts in April 2005.

The claimant alleged that the police lacked reasonable and probable cause, failed to disclose the significance of images found in temporary internet folders, and improperly disclosed information to a witness. The central legal issue was whether the police could remain liable after the CPS had taken over the prosecution and whether the evidence justified bringing or continuing the charges.

1. Outcome. The claim for malicious prosecution and misfeasance in public office was dismissed. The evidence justified the charges laid in July 2004 and the continuation of the prosecution after December 2004. No civil liability arose when the charges were later discontinued.
2. For malicious prosecution, the claimant had to establish prosecution, favourable termination, damage, absence of reasonable and probable cause, and malice. Applying Glinski v McIver [1962] AC 726, reasonable and probable cause depended on whether the available circumstances would lead an ordinarily prudent and cautious person to conclude that the accused was probably guilty, or at least that there was a proper case to lay before the court. The prosecutor need not test every possible fact or ascertain whether a defence existed: Herniman v Smith [1938] AC 305.
3. The police could remain potentially liable after charge where the CPS conducted the prosecution. The CPS depended on the police for the collection and transmission of evidence. Failure to forward material information could therefore be instrumental in an incorrectly brought or continued prosecution. CPS review and approval did not automatically absolve the police, although the independent assessments by CPS lawyers and prosecuting counsel were relevant to the existence of reasonable and probable cause.
4. The evidence available in July 2004, including the computer examination, credit-card material, the claimant’s account of the computer, and his no-comment interview, gave reasonable and probable cause for the charges. The officer was not shown to have known before charge that the images were in temporary internet folders.
5. After December 2004, the information about temporary internet folders did not necessarily eliminate reasonable and probable cause. Further expert examination might have established deliberate access or knowledge. The officer’s communication with the CPS and the CPS’s independent reviews supported the conclusion that continuation remained justified until the defence expert’s analysis removed any realistic prospect of conviction.
6. Misfeasance in public office required a public officer exercising public power, an intention to injure or knowing or reckless excess of power, damage caused thereby, and knowledge that the act would probably cause damage of the relevant kind, applying Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1. Those requirements were not established.