The Ministry of Justice (Sued As the Home Office) v Scott

A complainant may be treated as the prosecutor in an action for malicious prosecution even though the police or CPS formally brought the criminal proceedings. The question is whether the complainant actively procured the prosecution and was, in substance, responsible for it. This may occur where the circumstances made it virtually impossible, in practical terms, for the professional prosecutor to exercise an independent judgment.

The inquiry is fact-sensitive and must be applied cautiously. It is not confined to cases where the alleged facts were known only to a single complainant. A CPS decision to prosecute will rarely permit such a claim, but it does not automatically prevent it.

The respondent, a serving prisoner, was prosecuted for assaulting a prison officer and affray following an incident involving several prison officers. He was acquitted and brought claims for assault and malicious prosecution against the Ministry of Justice, alleging that the officers had made false complaints which procured the prosecution.

A Recorder refused the Ministry’s application to strike out the malicious-prosecution claim or grant summary judgment. His Honour Judge Pearce-Higgins QC dismissed the Ministry’s appeal. The Ministry appealed again, contending that the officers could not in law be prosecutors because the police and CPS had independently decided to prosecute.

The central issue was whether the pleaded facts could arguably establish that the officers had, in substance, procured the prosecution.

1. Appeal dismissed. Pill LJ, with whom Dyson and Longmore LJJ agreed, held that the claim was properly allowed to proceed to trial.

2. The controlling question, drawn from Martin v Watson [1996] AC 74, is whether the complainant was in substance responsible for the prosecution having been brought. A person who is not the formal prosecutor may nevertheless be liable if he or she actively procured the use of state power against the claimant.

3. The formulation that the relevant facts may be known only to the complainant was an application of the principle to a simple factual situation. It was not an exhaustive condition of liability. The proper inquiry is whether the circumstances made it virtually impossible, in practical terms, for the police or CPS to exercise an independent discretion or judgment. The test is fact-sensitive and should be applied cautiously, particularly in view of the CPS’s modern role. Cases in which a CPS prosecution supports a malicious-prosecution claim will be rare.

4. On a strike-out application, the pleaded facts had to be assumed. It was plainly arguable that the five officers desired a prosecution. Their mutually consistent accounts, as responsible officials in the closed environment of a prison, could have made a CPS decision to prosecute entirely predictable. The CPS advice relied upon the officers’ accounts and was given before medical evidence had been obtained. Potential evidence from prisoners or other sources did not necessarily prevent a finding that the officers had procured the prosecution.

5. The court did not determine whether the officers had actually procured the prosecution. It held only that the issue could not properly be resolved summarily and should proceed to trial.

• Court of Appeal (Civil Division): Dismissed the Ministry’s appeal in this judgment, [2009] EWCA Civ 1215.
• High Court of Justice, Birmingham District Registry: His Honour Judge Pearce-Higgins QC dismissed the Ministry’s appeal on 19 February 2009 from the Recorder’s decision.
• Recorder: Mrs Recorder Wilson refused, on 26 June 2008, to strike out the malicious-prosecution claim or enter summary judgment for the Ministry.