Clifford v The Chief Constable of Hertfordshire Constabulary

On an appeal from a judgment based on disputed witness evidence, the trial judge must address all relevant evidence bearing on the crucial issues. A direct conflict between witnesses cannot be disposed of simply as a failure of recollection where contemporaneous or otherwise independent documents materially support one account. An appellate error of that kind may require a retrial where it goes to the heart of the issues, including credibility. The appellate court may allow the appeal without deciding which witness is ultimately to be believed.

The claimant brought claims for malicious prosecution and misfeasance in public office arising from his prosecution for offences involving indecent images of children. The prosecution was discontinued and he was acquitted after expert evidence highlighted the significance of the images being located in temporary internet files. Cranston J dismissed the claims.

The appeal concerned principally the judge’s assessment of whether the police officer knew, before charge, that the location of the images undermined the prosecution case, and whether the judge had adequately considered the April note, the Service Improvement Document and a solicitor’s pre-action letter. The central issue was whether the judge’s treatment of that evidence was legally sufficient.

1. Appeal allowed. The judge’s reasoning on the crucial issue of the officer’s state of knowledge could not be upheld.
2. The case involved a direct conflict between the evidence of two witnesses. The judge was required to assess that conflict by reference to all relevant evidence. He could not dispose of the former officer’s account merely as a failure of recollection, particularly where independent documents provided material support for it.
3. The April note was potentially important because it was consistent with the former officer’s account that the temporary-file issue had been known from the outset and suggested that the possession charges had been intended to support the incitement charge. The Service Improvement Document and the solicitor’s letter also required proper evaluation. It was insufficient to reject them simply because they did not expressly state that the information was communicated before charge; their natural reading was capable of referring to that period.
4. The appellate court did not determine the ultimate credibility of either witness or the merits of the claims. Its conclusion rested on the judge’s failure adequately to engage with the three documents, and that error went to the heart of the issues.
5. The subsidiary allegation concerning the officer’s conduct after receiving the information in December was troubling, particularly because the weakness of the evidence was not expressly passed on. The court did not decide whether that allegation alone could sustain any part of the claim.
6. There was no practical alternative to a retrial, unless the parties reached an accommodation through mediation or otherwise.

• Court of Appeal (Civil Division): Appeal from the judgment of Cranston J allowing the appeal and ordering a retrial unless the dispute was resolved out of court.
• Queen’s Bench Division: Cranston J dismissed the claims for malicious prosecution and misfeasance in public office.