Howarth v Gwent Constabulary & Anor

In a claim for malicious prosecution, the claimant must establish both the absence of reasonable and probable cause and malice. Reasonable and probable cause has subjective and objective aspects: the prosecutor must honestly believe that there is a case fit to be placed before the court, and the available material must objectively justify that conclusion. The threshold is a prima facie case, not evidence sufficient to secure conviction. Investigators need not conduct a mini-trial or investigate every possible defence. Competent legal advice may support both subjective belief and the objective assessment, provided the material facts were fairly presented. Personal hostility, investigative zeal or poor judgment do not establish malice without an improper purpose. The claim and the related claim for misfeasance in public office failed.

The claimant sought damages from the Chief Constable of Gwent Constabulary and the Gwent Police Authority for malicious prosecution and misfeasance in public office. He had been charged with perverting the course of justice after his involvement in advising a client and the client’s family in relation to notices of intended prosecution. He was acquitted at Bristol Crown Court.

The claimant alleged that the investigating officers lacked reasonable and probable cause, acted maliciously, and exceeded their powers. The defendants relied on documentary material, witness evidence and legal advice from the CPS and counsel. The central issues were whether the officers honestly and reasonably believed that there was a case fit to be placed before a jury, whether they acted for an improper purpose, and whether the elements of misfeasance were established.

1. Malicious prosecution. The governing elements were identified by reference to Martin v Watson [1996] AC 74. Only reasonable and probable cause and malice were in issue.
2. Reasonable and probable cause. The phrase contains a subjective and an objective question. The prosecutor must honestly believe that a charge is warranted or that there is a case fit to be placed before the court. Objectively, the known circumstances must be sufficient to justify that conclusion to an ordinarily prudent person. The issue is not whether conviction is likely or whether the evidence is sufficient to secure a conviction, but whether there is a prima facie case fit to be tried.
3. Inconsistencies or matters requiring clarification do not ordinarily deprive a prosecution of reasonable and probable cause. Investigators are not required to conduct a mini-trial or test the full strength of every possible defence. The relevant inquiry is whether there is reasonable and probable cause for prosecution, not whether a possible defence has been disproved.
4. Legal advice may be relevant to both aspects of the inquiry. A prosecutor who fairly places the material facts before competent legal advisers may ordinarily rely on their advice, even if it later proves wrong. Advice cannot, however, create reasonable and probable cause where there is otherwise no supporting evidence.
5. Application. The documentary material, the Leftons’ evidence and the surrounding circumstances provided ample material for a prima facie case. The officers genuinely believed that there was a case fit to be placed before a jury, and that belief was objectively justified. The CPS and counsel had not been materially misled.
6. Malice and misfeasance. Malice requires an intention to subvert the legal process for an extraneous and improper purpose. Rudeness, personal dislike, over-zealousness, unequal treatment or poor investigative judgment did not establish that purpose. The officers acted within the scope of their powers, and the requirements of misfeasance in public office were not made out.
7. There was accordingly judgment for the defendants.