Adrian Daly v Independent Office for Police Conduct

A malicious prosecution claim cannot be maintained against a body which referred allegations to the Crown Prosecution Service where the CPS independently decided to prosecute. The referral does not make the referring body the prosecutor unless its conduct effectively set the law in motion, for example through deliberate manipulation or false information. A claimant must also show absence of reasonable and probable cause and malice; investigative shortcomings, incompetence or want of care do not themselves establish malice. For misfeasance in public office, dishonesty or bad faith is required. An error of judgment, even a serious one, is insufficient. Claims lacking a real prospect of proving these essential elements may be struck out or determined summarily.

The claimant, a serving Metropolitan Police officer, brought claims in malicious prosecution and misfeasance in public office against the Independent Office for Police Conduct arising from criminal and disciplinary proceedings concerning an alleged assault during a police operation.

The defendant applied to strike out the claims under CPR r.3.4(2)(a) or, alternatively, for summary judgment under CPR r.24.2. The claimant had been acquitted of the criminal charge, and the disciplinary proceedings were later dismissed. The central issues were whether the defendant was the prosecutor, whether the pleaded facts could establish the elements of malicious prosecution, and whether they gave the claimant a real prospect of proving dishonesty or bad faith for misfeasance.

1. Malicious prosecution. The claim relating to disciplinary proceedings could not proceed: the claimant conceded that such proceedings do not found a claim in malicious prosecution, following Gregory v Portsmouth City Council [2000] 1 A.C. 419.
2. The CPS was the prosecutor in relation to the criminal proceedings. The defendant referred its investigation report to the CPS, but the CPS independently decided whether to charge and prosecute. The defendant’s referral therefore did not make it the prosecutor. The claim could not succeed on the pleaded case, and amendment would not give it a real prospect of success.
3. In any event, the claimant had no real prospect of proving the other ingredients of malicious prosecution. The evidence, although controversial and finely balanced, provided a case fit to be put before a court. Investigative failures, inadequate identification procedures, disclosure criticism and lack of fairness might show incompetence or want of care, but did not establish malice.
4. Misfeasance in public office. The claimant had to prove dishonesty or bad faith, applying Three Rivers District Council v Governor and Company of the Bank of England (No.3) [2003] 2 AC 1. Even an unlawful decision in public-law terms would not, without more, establish dishonesty or bad faith. An error of judgment, including a serious error, was insufficient.
5. The malicious prosecution claims were struck out under CPR r.3.4(2)(a). Summary judgment was entered for the defendant on the misfeasance claim, which was dismissed.

First-instance decision. The judgment does not state any prior appeal or appellate decision.