Reference:  EWCA Civ 1092; The Times, 28 October 2009
Court: Court of Appeal
Judge: Sedley, Wall & Moore-Bick LJJ
Date of judgment: 22 Oct 2009
Summary: Malicious prosecution - Rape charge - Acquittal on appeal - Claim against accuser - Identity of prosecutor - Trial of preliminary issue - Appeal
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Instructing Solicitors: Coyle White Devine for the Claimant; Lovells for the Defendant
H and AB had sex in 1995. Seven years later AB’s friend reported this as a rape. Questioned, H asserted that AB had consented. AB was initially reluctant to give a statement but was persuaded by police to do so and to confirm her willingness to give evidence. H was charged, prosecuted and convicted, AB’s evidence being the key evidence at his trial. H’s conviction was later quashed on appeal due to misdirection and fresh evidence. After his release H brought a claim against AB for damages for malicious prosecution. Blake J directed the trial of a preliminary issue and having tried the issue held that AB was not the prosecutor and dismissed the claim. H appealed, contending that the judge had failed properly to apply binding House of Lords and Court of Appeal authority; had wrongly tried and determined the issue of AB’s honesty without a Jury, without H’s consent, and without hearing oral evidence.
(1) Did the Judge properly interpret and apply Martin v Watson  AC 74 and Mahon v Rahn (No.2)  1 WLR 2150, when determining whether AB was the prosecutor?
(2) Was the Judge wrong to determine AB’s veracity?
(3) Was the Judge entitled to strike his own policy balance?
(1) (a) In law, the first key requirement for a person to be a prosecutor is that they desire and intend the defendant should be prosecuted. This is a subjective not an objective test. AB was manifestly not the prosecutor; she did not want H prosecuted. So the appeal failed on the facts.
(b) Normally responsibility for a prosecution will lie with the police or CPS who exercise a discretion. A witness, even a key witness, is not exposed to liability for malicious prosecution unless, exceptionally, it is proved that she and not the authorities were truly responsible for bringing it about; that they were manipulated or their discretion overborne or perverted by her, which was not shown here;
(2) (per Sedley LJ) The Judge was entitled to take a view on AB’s veracity; (per Moore-Bick LJ) the Judge was wrong to try that issue on the papers without a Jury, absent H’s consent;
(3) (per Sedley and Moore-Bick LJJ) the Judge did not strike his own policy balance.
The treatment of complaints to police by the law has had something of a confused history. Prior to <A
href=”https://www.5rb.com/5rb/casereports/detail_redirect.asp?case=743″ target=_parent>Westcott v Westcott, it had always been thought that such complaints were protected by only qualified privilege. As a result of the reassessment of the principle of immunity from suit in Mahon v Rahn (No.2), the only basis on which to challenge what is alleged to be a malicious complaint to police is by a claim for malicious prosecution. Care has to be taken however that the rebalancing properly accommodates the legitimate interests of both parties.