Qema v News Group Newspapers Ltd

In malicious prosecution, reasonable and probable cause concerns the prosecutor’s honest belief, based on reasonable grounds, that the accused committed the offence and the sufficiency of evidence for a proper case to be tried. It does not generally require assessment of the public interest or whether prosecution might constitute an abuse of process. Entrapment by non-state actors may affect abuse-of-process questions in the criminal proceedings, but does not itself remove reasonable cause where the prosecutor personally knew of the criminal acts and had admissible evidence. Malice cannot establish want of reasonable and probable cause. A claim lacking any realistic prospect of proving that element may be summarily determined.

The claimant sued the defendant newspaper publisher for malicious prosecution, alleging vicarious liability for the conduct of its investigations editor. The claimant had supplied cocaine, possessed further cocaine with intent to supply it, and possessed a forged passport after an alleged journalistic sting operation. He pleaded guilty, but his pleas were later vacated following a Criminal Cases Review Commission referral; the prosecution offered no evidence and not-guilty verdicts were entered.

The defendant applied for summary judgment. The central issue was whether the alleged entrapment, non-disclosure, possible abuse of process, lack of legal advice, or reliance on inadmissible evidence could establish absence of reasonable and probable cause.

1. Application granted. The defendant obtained summary judgment because the claim had no realistic prospect of establishing absence of reasonable and probable cause and there were no other compelling reasons for trial.
2. The tort has objective and subjective elements. The relevant time is when the prosecution is set in motion. The judge examines the facts known to or appearing to the prosecutor and asks whether they provided reasonable and probable cause. The claimant must produce evidence of lack of honest belief. Want of reasonable and probable cause cannot be inferred from malice.
3. The prosecutor need not believe that conviction is probable or test the full strength of the defence. The question is whether there was a proper case fit to be tried, supported by sufficient evidence. The prosecutor is not generally required to decide whether prosecution is in the public interest or whether it might be an abuse of process.
4. Entrapment is not a defence to the criminal charge. Misconduct by non-state agents may, in an exceptional case, support a stay of proceedings as an abuse of process, but does not negate the criminal acts or the prosecutor’s knowledge of them for the purposes of reasonable cause.
5. The journalist personally observed the claimant’s supply and possession of drugs and forged documents. The evidence was admissible and did not depend on the source whose role was allegedly concealed. State non-disclosure and the possibility of an abuse-of-process stay therefore did not undermine reasonable cause.
6. A failure by a lay informant who personally witnessed the criminal acts to obtain legal advice could not, on these facts, support an inference of want of reasonable cause.