[2025] EWHC 2684 (KB)

Due to relevant policy considerations malicious prosecution “is on a tight rein” as a cause of action. Here Mr Deveney was front and centre of the case against the Claimants and its consequences but no claim was brought against him, rather the focus has been solely on the Police.

In my judgment there was reasonable and probable cause for the prosecution. As for the subjective element, the officers involved honestly believed that there was a case fit to be tried i.e. that a charge against the Claimants was warranted. In this case (although not a necessary element), contrary to the Claimants’ central argument the officers did actually believe in the Claimants guilt. As for the objective element, consideration of the adequacy of the evidence, the evidence was such that it would lead an ordinary and prudent man to believe in the charge. In this regard it is particularly noteworthy that Mr Tarrant, a specialist fraud prosecutor and also two Counsel believed that there was a case against the Claimants that warranted prosecution.

It is also my finding that the relevant officers involved in the investigation who were responsible for its progression did not act maliciously. No officer falsely and maliciously provided “slanted” information either by furnishing information which he knew to be false, or by supressing or withholding information which he knew to be true (or he knew would support the Claimants’ case). Put simply there was no deliberate manipulation of the evidence.

In my view there were errors of judgment. However, the tort of malicious prosecution is not concerned with incompetence and/or negligence. In this case there was no ill-will or any motive or purpose other than the proper invocation of the criminal law a fortiori an improper purpose that was the sole or dominant purpose actuating the prosecutor.

In a case such as this where the body of evidence obtained by the Police is reviewed by the CPS as the prosecuting authority, with the CPS taking the decision to charge, the starting point is that the CPS is to be regarded as the prosecutor, and there must be compelling reasons, a sound basis in fact established, for regarding the Police as the “true” prosecutor. It is the duty of a prosecuting authority to assess the credibility of prosecution witnesses and the strength of circumstantial evidence before matters can proceed to a charge. The circumstances in which the police can be regarded as the prosecutor when an independent prosecuting authority has carefully considered the case against a person, will be limited and requiring manipulation of the authority in order to achieve the prosecution. Here Mr Tarrant made an independent decision to prosecute, and his evaluation was not “overborne or perverted” in any way by the Police officers involved. I find that Mr Tarrant was not deprived of the opportunity to exercise any independent discretion or judgment. I have identified some errors. Had these been rectified (e.g. statements obtained from Mr Graham, Ms Smith and Dr Barker and more analysis of the statements of Mr Cooper and Mr Prior been provided) it would have had no effect upon his judgment.

I should also make it clear that I find that given the provision of the case summary (which was reasonably accurate and did not deliberately misstate the content of the statements) and statements themselves, the relevant facts relating to the offence were not solely within the knowledge of the Police.

For these reasons the claim of malicious prosecution fails.

Turning to misfeasance in public office, I reject as without foundation the Claimants’ case that the Defendant’s officers did not approach the investigation with an open mind and held an improper and malicious motive and that they maliciously abused their powers as public officers in the knowledge that such abuse of power would probably cause them damage. The claim fails on its merits for the same reasons that applied to the malicious prosecution claim, in particular the absence of malice and the absence of any wrongful act constituting an abuse of power. Accordingly this claim also fails on its merits.

Although it is not necessary given the findings which I have made I also find that the claim in misfeasance in public office is statute barred as there was no relevant act or omission after charge, specifically there was no failure to reveal misconduct and “the true state of the evidential picture”.

Although a draft of this judgment was circulated in July, the parties have been unable to agree the terms of a final order. It is therefore necessary to adjourn the hand down hearing part-heard to a further hearing. For the avoidance of doubt the time allowed for filing of any notice of appeal will not start to run until the conclusion of the adjourned hearing.