[2025] EWHC 2684 (KB)

The failure of the prosecution was also followed by complaints about conduct of officers resulting in professional standards and the IPCC investigations. I need not cover these in considerable detail as this is not an inquiry into the professionalism of officers. I have referred to some extracts when considering specific issues.

Mr Breeze sent a letter dated 16 June 2009 to the Chief Constable of Norfolk Constabulary containing his complaints about Operation Meridian. As a result of Mr Breeze’s letter, a statement of complaint was taken from him on 20 July 2009. In that statement, Mr Breeze raised numerous complaints, some of which were about the conduct of individual officers throughout the course of Operation Meridian, and some more general complaints about the conduct of the investigation as a whole. The former were investigated by the force’s Directorate of Professional Standards and the latter were investigated by Detective Superintendent Henwood in the course of his review of Operation Meridian. The outcome of the investigations was set out both in report form (with separate reports from Det Supt Henwood and Stephen Fernandes of DPS) and again in a written response entitled “response to issues raised in Mr Breeze’s statement dated 20 July 2010.

In his report dated 16^th September 2009 Detective Superintendent Henwood stated;

“The main issue for the investigation team identified by both the police and the CPS was focused on the term extra care. The first element was to attempt to understand what extra care was. This proved very difficult for the investigators and it is fair to observe that none of the inquiry team, CPS or prosecuting counsel ever understood the ethereal, intangible and often changing definition of extra care, in line with this the review team have also been unable to establish a precise definition of the term extra care that could be relied on.”

I note DS Henwood stated;

“The review has not seen a written SIO record of a formalised strategy relating to the arrest of the identified suspects.”

I have already set out observations about the arrest of Mr Prior (but this is not an issue in this case).

Mr Breeze appealed against the investigation into his complaints in a letter dated 15 September 2010. A number of aspects of the appeal were upheld; including that the investigation should have obtained a statement from David Graham, poor judgments were made in respect of the choice of expert and the decision to attend the City Club showed poor judgment on the part of DS Brownsell and DC Flynn.

The report of Janet Anderson and Simon Cousins, IPCC investigators dated 12^th September 2012 concluded that in respect of Mr Ward’s interview and statement that:

“The evidence strongly suggests that DC Baker attempted to mislead the independent investigation in his prepared statement by indicating DS Brownsell briefed him as to the status of DLA Piper during the interview contrary to earlier assertions to the professional standards department.”

And

“165.

The investigation has examined the statement prepared by DC Baker from the recording of the interview with Mr Ward on 28 March 2008.

166.

The investigation has concluded that DC Baker was selective in his drafting of Mr Ward’s statement to the Operation Meridian investigation and the statement did not accurately reflect, in some parts, what Mr Ward had said.

167.

The investigation has examined the prepared statement provided to the independent investigation by DC Baker in relation to the quote of Mr Ward.

168.

The investigation has concluded that DC Baker was selective in his quote of Mr Ward in his prepared statement, which gave an inaccurate meaning to what had actually been said for the purpose of supporting his assertion that Mr Ward made the allegation to Mr Breeze to explain why he was not in contact with him.

169.

In the circumstances, while his actions do not meet the threshold for misconduct and there is therefore no case to answer, they raise performance issues which Norfolk Constabulary should address.”

I have borne these findings in mind when considering my findings in relation to both Mr Ward and DC Baker, and have reviewed the statement content on the central issues.

Before I proceed to my analysis of the Claimants’ case it is necessary to set out the law.

I turn first to malicious prosecution.

It has long been recognised that a person who has been subjected to criminal proceedings improperly instituted against him/her will naturally be aggrieved by the institution of those proceedings. He/she is put to the time and expense of defending themselves, damaging publicity may harm their reputation and cause financial loss; the trauma of litigation may injure health; and other significant and potentially long-lasting implications may follow.

In Crawford Adjusters and others v Sagicor General Insurance [2013] UKPC 17, Lord Wilson set out the early development of the law relating to malicious prosecution starting in 1285 when the Parliament of Edward I provided a right to damages for the victims of malicious appeals (i.e. prosecutions) of homicides and other felonies against those who had conspired to procure them (Anno 13, Edw I, stat 1, c12). A central feature of the development of the law has been the recognition that the interests of a claimant must inevitably be weighed against countervailing interests. First of these is the defendant’s right to institute proceedings if done with the honest intention of protecting the public interest. Associated with this is the need to avoid any “chilling” effect on law enforcement, whether through susceptibility to civil actions or through potential adverse influence on prosecutorial discretion, whether of the police or of independent prosecutors.

In the Court of Appeal in Martin v Watson [994] Q.B. 425 Ralph Gibson LJ referred to the conflicting principles of policy and cited the following passage from Fleming, The Law of Torts (8^th Ed);

“The tort of malicious prosecution is dominated by the problem of balancing two countervailing interests of high social importance: safeguarding the individual from being harassed by unjustifiable litigation and encouraging citizens to aid in law enforcement. On one side, it needs no emphasis that the launching of scandalous charges is apt to expose the accused to serious injury, involving his honour and self-respect as well as his reputation and credit in the community. Malicious prosecution, therefore, bears close resemblance to defamation, both being infringements of essentially the same complex of interests on the part of the plaintiff. On the other side, however, is the competing interest of society in the efficient enforcement of the criminal law, which requires that private persons who co-operate in bringing would-be offenders to justice, no less than prosecutors, should be adequately protected against the prejudice which is likely to ensue from termination of the prosecution in favour of the accused. Moreover, there exist other sanctions against misconducting informants. [Making false statements to the police and perjury are crimes, and defamation is a tort.] So much weight has been attached to this consideration that the action for malicious prosecution is held on tighter rein than any other in the law of torts. Incidentally, it may also explain why this action was never absorbed into the law of defamation. For, though we have seen that the stringent liability of defamation is tempered by privileges when the importance of encouraging free speech outweighs the competing value of vindicating those unjustly defamed, it was probably felt that this would be an insufficient safeguard for the social interests here at stake. Thus, malicious prosecution has remained a distinct cause of action which in several particulars, notably in the allocation of the burden of proof and the functions between judge and jury, affords greater protection to private persons who initiate criminal proceedings than is accorded by conditional privileges to publish defamation.”

The relevant legal principles to be applied in this case were not in dispute and I am grateful to all Counsel for the most helpful summaries provided.

The elements of the tort of malicious prosecution are as follows:

The burden of proof for each element falls on the claimant; it is a heavy burden. As Otton LJ observed in Sinclair v Chief Constable of West Yorkshire & British Telecoms Plc (unreported, Court of Appeal, 12 December 2000) at p.10:

“Malicious prosecution is one of the most serious allegations in our jurisprudence. It is akin to fraud and imparts an assertion of deliberate dishonest behaviour on the part of the defendant. In order to succeed the Plaintiff faces a considerable task.”

Although each element of the tort requires to be proved separately, there is a conceptual and, in many cases evidential, overlap in determining (1) the identity of the prosecutor, (2) whether the prosecution was brought without reasonable and probable cause, and (3) whether the prosecution was brought maliciously, since the absence of reasonable and probable cause and malice must combine in the same individual (who must be the prosecutor) for the tort to be made out.

A prosecutor is someone who is responsible for setting the law in motion against another on a criminal charge.

Section 1 of The Prosecution of Offences Act 1985 established an independent prosecution service, the Crown Prosecution Service (CPS), headed by the Director of Public Prosecutions. The Director and under his directions Crown Prosecutors are charged with the duty of taking over the conduct of criminal proceedings instituted by the police. So the starting point is that the DPP, taking over proceedings originally initiated by the police, exercises independent judgment. A person who makes the decision to charge is, accordingly, the (but not necessarily the only) prosecutor. There are narrow, and highly fact specific, circumstances in which other individuals who were actively instrumental in setting the law in motion may be regarded as the prosecutor for the purposes of the tort.

The relevant principles emerge from the decision of the House of Lords in Martin v Watson [1996] 1 AC 74 and the decisions of the Court of Appeal in H v AB [2009] EWCA Civ 1092, Ministry of Justice v Scott [2009] EWCA Civ 1215 and, more recently, Commissioner of Police for the Metropolis v Copeland [2014] EWCA Civ 1014 and Rees v Commissioner of Police of the Metropolis [2018] EWCA Civ 1587.

For prosecutor status to attach to an individual who has provided facts to (or concealed facts from) the person who actually made the charging decision, it must be shown that the circumstances were such that the decision-maker was deprived of the opportunity to exercise any independent discretion or judgment on the question of whether to charge, so dependent were they on that individual for the veracity of the facts presented to them.

In Martin v Watson the issue was whether a complainant who had falsely and maliciously made a complaint of a sexual offence could be regarded as the prosecutor notwithstanding that she had not signed the charge sheet. Lord Keith of Kinkel, giving the leading Opinion for the House of Lords, held that she could. This was because she was in substance the person responsible for the prosecution having been brought. Lord Keith held at pp.86-87:

“Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.”

For an individual to be a prosecutor in such circumstances they must have falsely and maliciously provided, or failed to provide, information. As a result the issue of whether a third party (that is, someone other than the person who actually laid/decided on the charge) is the prosecutor will in many (but not all) cases stand or fall with the questions of whether the third party honestly believed that there was reasonable and probable cause for the prosecution. In this case this is a central issue.

In Rees -v-Chief Constable of Police for the Metrolis [2014] EWCA Civ 1014 a senior investigating officer (SIO) in a murder investigation had suborned the evidence of a principal witness (in so doing, committing the crime of doing an act tending and intended to pervert the course of justice and “contaminated the source of justice”) and concealed this fact from the CPS. The decision to prosecute was therefore “overborne and perverted” by the SIO’s conduct. It is also of note that at first instance; [2017] EWHC 273 (QB), Mitting J accepted at paragraph 144 that:

“45.

As already noted, the MPC accepts vicarious responsibility for any tortious liability of DCS Cook. She also accepts that, in principle, there may be more than one prosecutor in an individual case. As the judge noted in paragraph 144 of the judgment:

"144.

The case law establishes that an individual or group of individuals may be treated as the prosecutor where

i)

they alone know the facts about the alleged offence.

ii)

they deliberately misstate the facts to the person who makes the decision to lay the charge and so start the criminal process.

iii)

they intend that there should be a prosecution.

iv)

the person who decides that the charge should be laid and prosecution brought cannot be expected to and does not form an independent judgment on the question whether or not a charge should be laid and if so which."

He also cited a passage from the judgment of Brooke LJ in Mahon v Rahn [2000] 1 WLR 2150, paragraph 269 as follows:

“269.

In a simple case it may be possible to determine the issue quite easily by asking these questions. (1) Did A desire and intend that B should be prosecuted? (2) If so, were the facts so peculiarly within A's knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment? (3) Has A procured the institution of proceedings by the professional prosecutor, either by furnishing information which he knew to be false, or by withholding information which he knew to be true, or both?”

This passage was cited by McCombe LJ in the Court of Appeal without criticism. McCombe LJ stated:

“50.

The judge referred to certain passages in the judgments in this court in AH(unt) v AB [2009] EWCA Civ 1092, which were also relied upon by Mr Johnson QC before us. This was a case in which AB alleged that she had been raped by AH. After the lapse of some time she complained to the police, who persuaded her to give evidence. She did so and AH was convicted, but his conviction was quashed on appeal. Blake J held that she was not the prosecutor and that decision was upheld on appeal. First, it was not proved that she had the desire and intention that AH should be prosecuted, but also (per Sedley LJ at paragraph 3):

"The answer of principle is that, even if AB had gone straight to the police and made it clear that she wanted Mr H prosecuted, the independent intervention first of the police and then of the CPS would, in the absence of proof that the prosecution was in reality her doing and not theirs, have made the latter the prosecutor."”

At paragraph 47, Sedley LJ added:

“Even if she had gone directly to the authorities, the professional responsibility for the case assumed first by the police and then by the CPS would prima facie have made the latter for all legal purposes the prosecutor. It would have been necessary to establish that she had deliberately manipulated them into taking a course which they would not otherwise had taken if, pursuant to Martin v Watson, she was to be regarded in law as the prosecutor.” (my emphasis)

51.

Wall LJ and Moore-Bick LJ agreed. Wall LJ said, at paragraph 5:

“In my judgment, provided the CPS makes an independent decision to prosecute, and its process is not overborne or perverted in some way by the complainant, the complainant is protected.”

Finally, Moore-Bick LJ said:

“More importantly, however, I think he was right to hold that this was not a case in which the prosecuting authorities were deprived of the ability to exercise independent judgment. Unfortunately, cases of this kind, in which the complainant's word is pitted against that of the accused, are not uncommon, especially if there has been any significant lapse of time between the events in question and the investigation. However, that does not normally prevent the authorities from assessing the credibility of the complainant by reference to the inherent plausibility of the account and such circumstantial evidence as may be available. As to this, I entirely agree with the observations made by Sedley LJ in paragraph 47 of his judgment. In my view the Court should be very cautious before reaching the conclusion that the authorities were unable (or even, as Mr Warby emphasised, virtually unable) to exercise independent judgment.”

And

“57.

In assessing whether the CPS and Treasury Counsel were able to exercise a truly independent judgment, it is necessary to stand back from the printed word and, postulating the reverse of the facts as they were, to ask what effect it would have had on their judgment if they had been told that the SIO had deliberately presented to them a case in which the evidence of the only supposed eyewitness had been improperly procured by that officer by acts intended by him to pervert the course of justice. The case otherwise was supported only by evidence, not to mince words, of extremely "dodgy" witnesses and some circumstantial material. In my judgment, on this hypothesis, it is inconceivable that, in such circumstances, the CPS would have advised that murder charges be brought, without DCS Cook having been removed from the process entirely and a fresh review of the material having been prepared from which his malign influence had been removed.”

58.

It seems to me that the case falls squarely within what this court said in AH(unt) v AB . DCS Cook deliberately manipulated the CPS into taking a course which they would not otherwise have taken (Sedley LJ). The decision to prosecute was "overborne and perverted" (c.f. Wall LJ) by DCS Cook's presentation of the material to the CPS with the implicit suggestion that its procurement was not tainted in the manner that it was.

59.

This is not to say, as Mr Johnson submitted it was, that the mere provision of false information to a prosecuting authority leading to a prosecution makes the provider a prosecutor. I accept that the test is, as he argued, "drawn more restrictively". However, the cases are fact specific: see in this respect the very different results reached in not entirely dissimilar cases in Martin v Watson and in AH(unt) v AB . This present case was one in which DCS Cook took it upon himself to present to the independent prosecutor for a prosecution decision a case which he knew included an important feature procured by his own criminality. There is nothing more likely to have "overborne or perverted" the decision to prosecute. The CPS were deprived of their ability to exercise independent judgment.

60.

In my judgment, therefore, DCS Cook was undoubtedly a "prosecutor" in the sense decided by the authorities.”