Coghlan v Chief Constable of Cheshire Police & Ors

For malicious prosecution, the professional prosecutor is ordinarily the Crown Prosecution Service. An investigating police force, or another person, will be treated as the prosecutor only in rare circumstances where its conduct made it impossible, or virtually impossible, for the professional prosecutor to exercise independent judgment. Investigation, surveillance, disclosure, co-operation or assistance alone is insufficient. Deliberate suppression of information which rendered a prosecution baseless might in an appropriate case alter the position, but a failure to intervene proactively or to ensure that a prosecution is discontinued does not. The issue may be determined summarily where the evidence plainly shows that the professional prosecutor exercised independent judgment.

The claimant had been charged with murder after a fatal shooting at his home. The Crown Prosecution Service later offered no evidence, and a not-guilty verdict was entered. He brought claims for malicious prosecution against Cheshire Police, Greater Manchester Police and the National Crime Agency. Claims for false imprisonment, misfeasance in public office and under the Human Rights Act 1998 were abandoned or not pursued.

The defendants applied to strike out the claim or obtain summary judgment. The central issue was whether any defendant, rather than the Crown Prosecution Service, had prosecuted the claimant in law.

1. Disposition. The claim was dismissed against all three defendants. The claims against Greater Manchester Police and the National Crime Agency were struck out under r.3.4(2)(a). Summary judgment was given for all defendants because the claimant had no real prospect of establishing that any of them was the prosecutor and there was no compelling reason for a trial.
2. The tort of malicious prosecution requires proof of prosecution by the defendant, favourable termination, absence of reasonable and probable cause, malice and actionable damage. The first issue was whether the defendants had prosecuted the claimant. The starting point was that the CPS, which made the charging decision, was the prosecutor.
3. The authorities establish a narrow exception. A person who supplies information is not ordinarily the prosecutor. That person may be treated as the prosecutor where, in substance, the prosecution was procured and the professional prosecutor could not, or was virtually unable to, exercise independent judgment. Such cases are rare, particularly where the CPS has independently assessed the evidence.
4. Greater Manchester Police and the NCA had not attended the scene, investigated the murder, arrested or charged the claimant, or prepared the prosecution file. Even if they had conducted surveillance, supplied information or assisted the investigation, those matters did not amount to prosecution in law. The pleadings therefore disclosed no reasonable grounds against them.
5. As to Cheshire Police, the investigation required assessment of the crime scene, injuries, accounts and forensic evidence. The CPS charging lawyer considered the available material and applied the Threshold Test. There was no real prospect of proving that any failure to disclose intelligence or alleged evidence made the charging decision impossible or virtually impossible to take independently.
6. The court treated with caution observations that deliberate suppression of information rendering a prosecution baseless might make an investigating officer the prosecutor. That situation was neither pleaded nor supported by evidence. A possible delay in forwarding evidence, and an alleged failure to cause the CPS to discontinue the prosecution earlier, fell short of the legal threshold.
7. The claim against the NCA was certified as totally without merit under r.3.4(6)(a). No civil restraint order was made.