Sandra Juman v The Attorney General of Trinidad and Tobago and another

In a malicious prosecution claim, the claimant must prove both absence of reasonable and probable cause and malice. Reasonable and probable cause has subjective and objective elements: the prosecutor must honestly believe there is a case fit to be tried, and that belief must be objectively justified. An appellate court reviewing concurrent factual findings does not rehear the case and intervenes only for an identifiable error or where the decision cannot reasonably be explained or justified. Malice means deliberate misuse of the court’s process. Inadequate investigation, sloppiness or alleged recklessness may provide evidence of misuse, but does not itself establish malice. The appeal was dismissed because the lower courts’ findings were open to them and there was no evidence of deliberate misuse or an ulterior improper purpose.

The appellant was arrested after firearms and ammunition were found in premises which the police considered her to occupy with others. She was charged under section 6(1) of the Firearms Act, Chapter 16.01, but the criminal charges were dismissed at the close of the prosecution evidence.

Shah J awarded damages for false imprisonment but dismissed the malicious prosecution claim, finding reasonable and probable cause and no malice. The Court of Appeal of the Republic of Trinidad and Tobago dismissed the appellant’s appeal. The central issues before the Board were whether the lower courts had erred in their factual assessment of reasonable and probable cause, and whether inadequate investigation or alleged recklessness could amount to malice.

Appeal dismissed. Lord Toulson delivered the judgment of the Board.

1. An appeal to the Board is a review, not a rehearing. In the absence of an identifiable error, an appellate court should interfere with factual findings only where the decision cannot reasonably be explained or justified, as summarised in Henderson v Foxwith Investments Ltd [2014] 1 WLR 2600, para 67.
2. The Board also reaffirmed the established practice of not interfering with concurrent findings of fact by two lower tribunals. That practice is not absolute, but departure is confined to cases of a most unusual nature, as illustrated by Devi v Roy [1946] AC 508, at 521, and Central Bank of Ecuador v Conticorp SA [2015] UKPC 11, paras 4 to 8.
3. The test for reasonable and probable cause, accurately summarised by the Court of Appeal, requires an honest belief by the charging officer that there is a case fit to be tried and objectively sufficient evidence to justify that belief. The deeming provision in section 5(2) of the Firearms Act was relevant on the factual premise that the appellant occupied the whole premises where the firearms were found.
4. The lower courts had accepted the officer’s account and found that the premises constituted one household. They had carefully considered the appellant’s criticisms and reached concurrent conclusions. The case disclosed no basis for appellate intervention.
5. The Board stated, in the alternative, that malice in malicious prosecution requires deliberate misuse of the court’s process. A failure to make elementary inquiries may sometimes be an evidential pointer towards such misuse, but sloppiness alone is not malice. Recklessness is too variable a concept to serve as the yardstick. The officer believed that there were sufficient grounds to prosecute and intended to place the issue before the magistrate; there was no evidence of an ulterior improper motive. Even if reasonable and probable cause had been absent, malice would not have been established.

The parties were directed to make written submissions on costs within 28 days.

• Privy Council: The appeal from the Court of Appeal was dismissed. [2017] UKPC 3
• Court of Appeal of the Republic of Trinidad and Tobago: On rehearing, the court dismissed the appellant’s appeal against dismissal of the malicious prosecution claim and later issued fuller written reasons.
• High Court: Shah J awarded damages for false imprisonment but dismissed the claim for malicious prosecution.