Full case report
Qema v News Group Newspapers Ltd
Case Reference  EWHC 1146 (QB)
Court Queen's Bench Division
Judge Sharp J
Date of Judgment 2 May 2012
Malicious prosecution - drug and passport offences – witnessed by journalist - reported to police by journalist - C prosecuted - plea of guilty - prison sentence - Criminal Cases Review Commission - C alleges was innocent but 'set up' by journalist - CCRC recommends vacation of plea - Court vacates plea - Crown offers no evidence - not guilty verdict - C sues publisher for malicious prosecution - relies on set up to prove no reasonable and probable cause - summary judgment application by D - application granted - claim dismissed
In February 2005 C supplied M, the investigations editor of the News of the World, with 3g of cocaine. C also obtained, and arranged to supply M with more cocaine and a forged passport. M recorded his dealings with M, had forensic analysis carried out, and reported the facts to the police. C was charged. He pleaded guilty and mitigated on the basis that he had been entrapped, but that this was not a defence. C was sentenced to 4 ½ years imprisonment, later reduced on appeal.
C’s case was later taken up by the Criminal Cases Review Commission. C contended that he was an innocent man who had been induced to commit the offences by G, an associate of M, posing on an internet chatroom as a female fellow Albanian. G was alleged to have induced C to commit offences when he would not otherwise have done so, by holding out the prospect of sexual favours and well-paid employment by a Sheikh if C would do so. The CCRC concluded that it was possible a Court might find that C was not given proper disclosure prior to his choice of plea and/or that the prosecution might have been an abuse of the process. C’s case was referred back to the Court, which allowed him to vacate his plea. The prosecution then offered no evidence, and formal not guilty verdicts were entered. C had by this time served his sentence.
C now sued D, the publisher of the News of the World, for damages for malicious prosecution. C alleged that D was responsible because M had in substance been the prosecutor of C, that G had been acting on M’s instructions or authority, and that the prosecution was malicious. D disputed these points, but accepted they were triable. D applied for summary judgment on the basis that since C admitted that he had committed the offences, with the necessary mens rea, he had no real prospect of establishing that the prosecution was without reasonable and probable cause; hence his claim must fail. C argued that he had a real prospect of showing want of reasonable cause on the footing that M had provoked his prosecution whilst deliberately suppressing evidence of G’s role, knowing that if this was disclosed any prosecution would be an abuse of the process and/or that the CPS would decide not to proceed.
Did C have any real prospect of proving that D (through M) caused his prosecution without reasonable or probable cause, when C had admittedly committed the criminal acts in question and M had witnessed him doing so?
The claim had no real prospect of success, because C could not prove want of reasonable and probable cause. In the decided cases the focus always has been on the sufficiency of evidence to support the prosecution of the offence in question and the defendant’s knowledge of and honest belief in that. If it is apparent that the defendant knew from personal observation sufficient facts to prove the criminal charges brought against the defendant (and nothing by way of a defence), it would be impossible to conclude that the charges were brought without reasonable and probable cause. There is no support in the decided cases for the proposition that a prosecutor should assess generally whether it is reasonable to prosecute still less whether it is in the public interest to conduct a prosecution (i.e. something akin to the second limb of the prosecutorial test).
The judgment is also of interest for its discussion of other issues raised in argument, including the question of whether a lay witness would reasonably be expected to take legal advice before making an allegation of crime (no); and the existence in the authorities of support for the view the tort is not concerned to protect the guilty but to provide compensation to innocent persons who are prosecuted both maliciously and groundlessly.
Simons Muirhead & Burton for D; Guile Nicholas for C