Andrew Breeze & Anor v Chief Constable of Norfolk Constabulary

A malicious prosecution claim against investigating police officers will ordinarily fail where an independent prosecutor made the charging decision after reviewing the evidence. Police officers become prosecutors only in narrow circumstances, such as where deliberate manipulation or suppression of evidence deprives the professional prosecutor of independent judgment.

Reasonable and probable cause requires both an honest belief that there is a case fit to be tried and objectively sufficient, prima facie admissible evidence. Malice requires an improper or ulterior dominant purpose. Errors of judgment, incompetence or negligence do not establish malice. The same principles substantially govern a claim for misfeasance in public office, which also requires deliberate abuse of public power and bad faith.

The claimants, directors and shareholders of a private psychiatric hospital, were prosecuted for conspiracy to defraud Primary Care Trusts by charging for alleged extra care that was said not to have been provided. The prosecution was brought after a lengthy police investigation and a charging decision by the Crown Prosecution Service. The claimants were acquitted after the prosecution offered no further evidence during the trial.

They sued the Chief Constable for malicious prosecution and, alternatively, misfeasance in public office. They alleged that the police investigation was conducted with a closed and malicious mind, that evidence was manipulated or suppressed, and that the police effectively procured the prosecution by misleading the CPS. The central issues were whether the police were prosecutors, whether there was reasonable and probable cause, whether the investigation was malicious or in bad faith, and whether the misfeasance claim was statute-barred.

1. Claim dismissed. The claimants failed to establish malicious prosecution or misfeasance in public office.
2. The CPS prosecutor, Mr Tarrant, made an independent decision to charge after receiving a lengthy case summary, witness statements and supporting material. His judgment was not overborne or perverted by the police. The police therefore did not have the status of prosecutors.
3. There was reasonable and probable cause. Subjectively, the investigating officers honestly believed that the evidence disclosed a case fit to be tried. Objectively, the evidence could lead an ordinary and prudent person to believe that a charge was warranted. The evidence included the account of Mr Deveney, corroborative evidence, inconsistent descriptions of extra care, unclear contractual documentation, inadequate audit trails, evidence concerning staffing, and evidence from commissioners.
4. The later collapse of the prosecution and the CPS review applied a different and higher evidential test from the test for reasonable and probable cause. They did not demonstrate that the earlier decision to prosecute lacked reasonable and probable cause.
5. The investigation contained errors of judgment and inadequacies. These included failures to interview or fully analyse certain witnesses, insufficient analysis of evidence from Mr Cooper and Mr Prior, inadequate treatment of Dr Barker’s patient-confidentiality concerns, and failure to use a more specific indictment. Those errors were not deliberate attempts to mislead, suppress evidence or manipulate the CPS.
6. Malice was not proved. The officers’ dominant purpose was the proper invocation of the criminal law. Malice requires an improper or ulterior purpose; incompetence, negligence, poor judgment and professional shortcomings are insufficient.
7. The misfeasance claim failed on the merits for the same reasons. In addition, it was statute-barred because the relevant cause of action accrued more than six years before proceedings were issued, and no relevant post-charge act or omission was established.

The hand-down hearing was adjourned part-heard because the parties had not agreed the final order. The time for filing any appeal notice would begin only after the adjourned hearing concluded.