Hunt v AB

A witness or complainant becomes a prosecutor for the tort of malicious prosecution only by positively intending and effectively procuring the prosecution. Providing essential evidence, even about matters known only to the complainant and accused, does not suffice.

An independent decision by the police and Crown Prosecution Service will ordinarily make the public authority the prosecutor. A complainant may nevertheless be liable in the rare case where deliberate manipulation deprives those authorities of a genuine independent judgment. Dishonesty may evidence the necessary intention and procurement, but it remains distinct from them and from the separate requirements of want of reasonable and probable cause and malice.

The claimant was convicted of raping the defendant after she reluctantly gave evidence following pressure from the police. She had neither reported the allegation to the police nor initially wished to support a prosecution. The Criminal Division later quashed the conviction without ordering a retrial.

The claimant sued the defendant for malicious prosecution. Blake J tried the identity of the prosecutor as a preliminary issue and held in [2008] EWHC 2756 (QB) that the defendant was not the prosecutor.

The claimant appealed, relying principally on Martin v Watson and Mahon v Rahn (No 2). The central issue was when an informant whose evidence provides the essential foundation of criminal proceedings can be regarded as the prosecutor despite the Crown Prosecution Service's decision to proceed.

1. Appeal dismissed. All three Lord Justices agreed that the defendant was not the prosecutor. The prosecution was undertaken independently by the police and the Crown Prosecution Service. The defendant had not reported the allegation, had resisted participation and had agreed to give evidence only after persistent police pressure.

2. Per Sedley and Moore-Bick LJJ, setting the law in motion requires more than making an allegation or supplying evidence. The defendant must desire and intend that a prosecution occur and must take effective action to procure it. Those requirements are distinct from want of reasonable and probable cause and malice.

3. The guidance in Mahon v Rahn (No 2) was followed. Relevant inquiries include whether the informant desired and intended the prosecution, whether the circumstances made independent prosecutorial judgment virtually impossible, and whether the informant procured proceedings by knowingly supplying false information or withholding known truth. The inquiries must be applied cautiously and with regard to all the circumstances.

4. The fact that only the complainant and accused can give direct evidence does not itself make the complainant the prosecutor. Nor does an assertion that the complainant lied establish prosecutorial status. Dishonesty may be evidence of intention and procurement, but the court must still determine whether the informant actively brought the prosecution about.

5. A decision by the Crown Prosecution Service does not confer absolute protection. An informant may exceptionally remain the prosecutor where deliberate manipulation overbears or perverts the authorities' independent process. Ordinarily, however, the professional decisions of the police and Crown Prosecution Service make the public authority the prosecutor. No manipulation occurred here.

6. Moore-Bick LJ considered that the preliminary issue had been framed too broadly because questions concerning the defendant's honesty were intertwined with issues suitable for a jury. It would have been preferable to confine the preliminary issue to the authorities' capacity for independent judgment. That procedural concern did not alter the result.

1. Court of Appeal (Civil Division): The court dismissed the claimant's appeal in [2009] EWCA Civ 1092 and upheld the determination that the defendant was not the prosecutor.

2. High Court, Queen's Bench Division: Blake J determined a preliminary issue in [2008] EWHC 2756 (QB), holding that the defendant was not the prosecutor and therefore could not be liable in malicious prosecution.