Clifford v The Chief Constable of the Hertfordshire Constabulary

For malicious prosecution, the prosecutor must have both an honest belief in the existence of reasonable and probable cause and reasonable and probable cause in fact. Mere belief is insufficient. Malice may be inferred where the prosecution was brought without reasonable and probable cause and the evidence supports an improper motive.

Where several charges form one prosecution process, compensatory damages are assessed globally rather than separately for each charge. Aggravated damages require a distinct basis beyond matters already included in the basic award. Exemplary damages remain exceptional.

The claimant brought claims for malicious prosecution and misfeasance in public office after being charged with child pornography offences. The prosecution initially included an incitement charge and three possession or making charges based on images recovered from a computer.

The incitement charge was dropped. No evidence was offered on the remaining charges, and the claimant was acquitted. The central issues were whether the possession charges had been brought without reasonable and probable cause, whether the investigating officer acted maliciously or for an improper purpose, whether any disclosure to a former business associate constituted misfeasance, and the appropriate damages and costs.

1. Claim succeeded. Judgment was entered for the claimant in the sum of £20,000. The possession charges had been brought without reasonable and probable cause.
2. The court applied Glinski v McIver [1962] AC 305. The prosecutor must honestly believe that there is reasonable and probable cause, and reasonable and probable cause must also exist objectively. The mere presence of images in temporary internet files did not provide evidence of the claimant’s knowledge, which was required for the possession charges. The investigating officer knew the evidence was insufficient but charged the claimant to strengthen the separate incitement case.
3. That improper purpose, together with concealment of material information from the prosecuting authorities and subsequent false explanations, established malice. Malice in this context includes an improper motive and is not confined to personal ill will.
4. The allegation that the officer told a former business associate about the prosecution was not proved to the required standard. A separate allegation concerning disclosure to another officer was dismissed.
5. Damages were assessed for the single prosecution process, not separately for each charge. Applying the approach in Thompson v Commissioner of Police of the Metropolis [1998] QB 498, the court awarded £10,000 for psychiatric injury and £10,000 for distress, stigma and non-psychiatric injury to feelings. Exemplary damages were refused because the case did not justify that exceptional remedy.
6. The claimant recovered the costs of both trials. The costs of the first trial were payable on the standard basis and the retrial costs on the indemnity basis. The defendant’s application for a show-cause order was refused.

The judgment concerned a retrial following an earlier trial before Cranston J. The judgment does not state a citation for the earlier decision or any separate appellate disposition.