Rudall v The Crown Prosecution Service & Anor

For malicious prosecution, the claimant must establish each element separately, including both absence of reasonable and probable cause and malice. Reasonable and probable cause has subjective and objective components: the prosecutor must honestly believe that there is a proper case to lay before the court, and that belief must have a reasonable evidential basis.

At the charging stage, the question is whether there is prima facie admissible evidence of each element of the offence. The court does not conduct the more intensive assessment required by the Code for Crown Prosecutors or determine whether evidence may ultimately be excluded after a full trial. Malice cannot be inferred merely from the absence of reasonable and probable cause.

The claimant, a solicitor, brought claims against the Crown Prosecution Service and the Chief Constable arising from a prosecution for money laundering. The claim against the Chief Constable was discontinued, leaving the CPS as the sole defendant.

The principal issue was whether the CPS prosecutor lacked reasonable and probable cause because the prosecution depended on a compact disc containing Latvian banking material, and whether the prosecution was malicious. The claimant also pursued claims for misfeasance in public office and breach of Human Rights Act 1998 section 6, which were said to depend on the malicious prosecution claim.

1. The claim was dismissed. The claimant failed to establish either absence of reasonable and probable cause or malice. The derivative claims for misfeasance in public office and breach of section 6 of the Human Rights Act 1998 also failed.
2. Malicious prosecution requires proof of prosecution by the defendant, favourable termination, absence of reasonable and probable cause, and malice. The last two elements must be established separately. Malice cannot be inferred from absence of reasonable and probable cause alone (paras [74]-[77], [97]).
3. Reasonable and probable cause has subjective and objective strands. The prosecutor must honestly believe that there is a proper case to lay before the court, and that belief must have a reasonable basis judged by the facts known or apparent at the time of charge (paras [76], [96]-[98]).
4. The relevant charging-stage inquiry is whether there is prima facie admissible evidence of each element of the offence. It is not the same as the evidential stage of the Code for Crown Prosecutors, which requires consideration of the realistic prospect of conviction, reliability, credibility and possible defences. Normally, the court need not anticipate a later application to exclude evidence after full argument, although an obvious feature may justify limited consideration of whether evidence could be used in court (paras [79]-[81]).
5. The prosecutor honestly believed that the Latvian banking material was prima facie admissible. Applying Foxley, the material and the circumstances in which it was obtained provided a reasonable basis for inferring its provenance. The documentary evidence was not plainly inadmissible under section 117 of the Criminal Justice Act 2003, notwithstanding later concerns about reliability and continuity (paras [127]-[148]).
6. The court rejected allegations that the prosecutor had concealed a further letter of request, knew of defects in the exhibit, or had been infected by improper motives attributed to counsel. The evidence did not establish that the prosecution was motivated by spite, ill-will, or any purpose other than bringing a person to justice (paras [150]-[175]).