Gray v Crown Prosecution Service

A prosecution is not malicious merely because criminal charges are dismissed or the defendant is acquitted. A claimant must show both absence of reasonable and probable cause and malice. The prosecuting authority may rely on an arguable basis in fact and law, including a reasonable argument that the criminal court’s ruling was wrong. The Crown Prosecution Service owes no general duty of care to persons whom it prosecutes, subject to any specific assumption of responsibility. A defence is not liable to be struck out merely because an allegation is not expressly traversed where the pleading sets out the nature of the defendant’s case.

The claimant brought proceedings against the Crown Prosecution Service alleging malicious prosecution, negligence and breach of human rights following his acquittal on a public-order charge and dismissal of two assault charges. The assault charges had been dismissed after the District Judge concluded that the claimant was unlawfully detained when the alleged assaults occurred. The claimant applied to commit the CPS’s senior prosecutor for contempt and to strike out the defence. The CPS applied for summary judgment on the malicious-prosecution claim and for strike-out of the negligence and human-rights claims.

The central issues were whether the pleaded defence could properly argue that the District Judge’s ruling was wrong in law, whether the CPS owed a duty of care, and whether the malicious-prosecution claim had any realistic prospect of success.

1. The claimant’s applications were dismissed. Signing a statement of truth confirmed the pleaded facts, not legal assertions advanced by the defendant. The assertion that the District Judge’s ruling was wrong in law was an arguable legal submission and could not constitute perjury or contempt.
2. It was permissible for the CPS to contend that there had been a reasonable and probable basis for prosecuting the assault charges. The dismissal of criminal charges did not itself establish malice. It was reasonably arguable that the custody officer’s statutory responsibilities under Police and Criminal Evidence Act 1984, section 37, were not affected merely because an investigating officer had privately changed his mind about the original allegation.
3. The defence was not liable to be struck out under CPR 16.5. Even if allegations concerning assaults by police officers were taken to be admitted, the defence stated the nature of the CPS’s case: that evidence existed showing that the claimant had assaulted the officers and justified prosecution.
4. The human-rights claim disclosed no arguable cause of action based on failure to respond to a pre-action letter. The negligence claim was unsustainable. Following Elguzouli-Daf v Commissioner of Police of the Metropolis [1994] EWCA Civ 4, the CPS owed no general duty of care to persons whom it prosecuted. The recognised possibility of an assumption of responsibility did not arise on the facts.
5. The malicious-prosecution claim had no realistic prospect of success. There was no evidence of malice, sufficient evidence existed to justify the assault charges, and the CPS could not realistically have anticipated the evidence or legal argument concerning the claimant’s detention. The defendant’s applications were therefore granted and the claim was struck out.