Moulton v Chief Constable of the West Midlands

For malicious prosecution, the claimant must establish both the absence of reasonable and probable cause and malice. Reasonable and probable cause requires an honest belief in the accused’s guilt, based on an objectively reasonable assessment of the available evidence. The court assesses the position when the prosecution began and whether that justification continued. Investigative shortcomings, delay, poor case management and failure to obtain potentially helpful evidence do not, without more, show either want of reasonable and probable cause or an improper motive. Where the prosecutor honestly believes the allegation, an irrational objective assessment makes malice harder to prove. Articles 5(1)(c), 5(5) and 13 of the European Convention on Human Rights do not require the domestic threshold for proving malice to be lowered. The same malice requirement defeated the misfeasance claim.

The appellant was prosecuted for rape and assault following allegations by two young women. The prosecution ended when the Crown offered no evidence. He brought claims against the Chief Constable for malicious prosecution and misfeasance in public office. The Birmingham County Court dismissed both claims on 15 January 2008.

On appeal, the appellant challenged the finding that the police had reasonable and probable cause to commence and continue the prosecution. He also argued that the investigation supported an inference of malice and that the requirement to prove malice should be reduced to comply with the European Convention on Human Rights. The central questions were whether reasonable and probable cause had ceased before discontinuance and whether malice or malicious abuse of office had been established.

1. Appeal dismissed. The court upheld the dismissal of the claims for malicious prosecution and misfeasance in public office.
2. Reasonable and probable cause contains subjective and objective elements. The prosecutor must honestly believe in the accused’s guilt, and that belief must be founded on reasonable grounds arising from circumstances which would lead an ordinary prudent and cautious person in the prosecutor’s position to conclude that the accused was probably guilty. The trial judge correctly applied that standard, derived from Hicks v Faulkner [1878] 8 Q.B.D. 167 and approved in Herniman v Smith [1938] AC 305.
3. At charge, the officers appeared honestly to believe the allegations. Although careful examination would have disclosed inconsistencies and matters requiring clarification, the evidence still provided reasonable and probable cause to prosecute. The Court of Appeal would have reached the same conclusion.
4. Reasonable and probable cause must also be considered in relation to continuation. The cause remained sufficient while the significance of the proposed change in PP’s account was unknown. Once BB maintained her account and the prosecution faced a stark conflict between its own witnesses, reasonable and probable cause ceased objectively to exist. The police’s failures in investigation, communication and management were serious, but the case was sent to the CPS promptly after BB’s further statement. The failure to withdraw opposition to bail or communicate developments was bad practice, but did not amount to continuing the prosecution without reasonable and probable cause.
5. Malice means acting from a motive other than a legitimate desire to bring the accused to justice. Delay, failure to submit samples, inadequate supervision and an inaccurate explanation to the CPS suggested dilatoriness and poor management, not an ulterior motive. An honest but irrational belief in the validity of an allegation makes malice more difficult to prove. The European Convention on Human Rights did not require a lower threshold.
6. The misfeasance claim failed because the appellant accepted that it depended on proving malice, and malice had not been established.

• Court of Appeal (Civil Division) [2010] EWCA Civ 524: appeal dismissed.
• Birmingham County Court: HH Judge McKenna dismissed the claims for malicious prosecution and misfeasance in public office on 15 January 2008.