QB-2020-004171 - [2025] EWHC 2773 (KB)

Reasonable and probable cause has a subjective element and an objective element. As Lord Devlin explained in Glinski at p.768, “the question is a double one: did the prosecutor actually believe and did he reasonably believe that he had cause for prosecution?”

There is a useful summary of the legal principles of when there is a reasonable and probable cause in the judgment of Lambert J in Rudall v Crown Prosecution Service [2018] EWHC 1587 at [76] as follows:

“a.

the question of whether there was an absence of reasonable and probable cause has two strands; the objective and the subjective: it involves considering whether the prosecutor had an honest belief in the charge and whether, viewed objectively, there was a reasonable basis for that belief.

b.

An absence of honest belief in the charge by the prosecutor is conclusive of the absence of reasonable and probable cause, even if a reasonable man could have believed in the charge on the basis of the facts known to the prosecutor. See: Haddrick v Heslop [1848]12 QB 268 at 274 -5 "It would be quite outrageous if, where a party is proved to believe that a charge is unfounded, it were to be held that he could have reasonable and probable cause" per Lord Denman CJ.

c.

It is not necessary for the prosecutor to believe in the guilt of the person accused, he has only to be satisfied that there is a proper case to lay before the court: see Thacker v Crown Prosecution Service [1997] EWCA Civ 3000 where Kennedy LJ observed "Guilt or innocence is for the Tribunal and not for him" and Coudrat v Commissioners of Her Majesty's Revenue and Customs [2005] EWCA Civ 616 where Smith LJ stated "an officer is entitled to lay a charge if he is satisfied that there is a case fit to be tried. He does not have to believe in the probability of conviction."

d.

The Court arrives at the answer to the question of whether there was reasonable cause by examining the facts as they were known to, or appeared to, the prosecutor at the time of charge, "the facts upon which the prosecutor acted should be ascertained.. when the judge knows the facts operating on the prosecutor's mind, he must then decide whether they afford reasonable and probable cause for prosecuting the accused": see Herniman v Smith [1938] AC 505 at 316 per Lord Atkin.

e.

The absence or otherwise of reasonable and probable cause involves an analysis of the sufficiency of the evidence. As Sharp J expressed the position in Besnik Qema v News Group Newspapers Limited [2012] EWHC 1146 (QB) "whether one considers the objective or subjective element of reasonable and probable cause, the focus is always 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."

f.

In Coudrat, Smith LJ framed the assessment of evidential sufficiency as follows: "when considering whether to charge a suspect, consideration must be given to the elements of the offence with which it is intended to charge him. There must be prima facie admissible evidence of each element of the offence. Although anything plainly inadmissible should be left out of account, we do not think that, at the stage of charging it is necessary or appropriate to consider the possibility that evidence might be excluded at the trial after full legal argument or in the exercise of the judge's discretion. Nor is it necessary to test the full strength of the defence. An officer cannot be expected to investigate the truth of every assertion made by the suspect in interview." (my emphasis).

g.

Absence of reasonable and probable cause must be established, like each of the elements of malicious prosecution, separately. Want of reasonable and probable cause can never be inferred from malice:

i.

"From the most express malice, the want of probable cause cannot be implied. A man from malicious motives may take up a prosecution for real guilt, or he may, from circumstances which he really believes, proceed upon apparent guilt and in neither case is he liable to this kind of action": Johnstone v Sutton (1786) 1 Term Reports 510, 545

ii.

"The importance of observing this rule cannot be exaggerated… It behoves the judge to be doubly careful not to leave the question of honest belief to the jury unless there is affirmative evidence of the want of it" Glinski v McIver [1962] AC 726 per Viscount Simonds.

h.

The preparedness of counsel to act for the crown is relevant to (and potentially determinative of) the question of reasonable and probable cause. However, each case must be considered on its own facts: see Abbott v Refuge Assurance Co [1962] 1 QB 432 "the variations in the circumstances of cases are almost infinite. Clearly the view of counsel, who was not experienced in work of this kind, would not be of any great value to persons seeking his advice; neither would that advice be of any great value however experienced the counsel, if the whole of the facts were not put before him."

The last of these points at (h) above can be amplified by reference to the case of Glinski. A person laying a charge is entitled to act on the advice of counsel to the effect that there is reasonable and probable cause to prosecute, see e.g. Glinski, per Viscount Simonds at 744-745 (and also Lord Denning at 759 and Lord Reid (who agreed with Viscount Simonds) at 753):

“Can he rely on the legal advice given to him? He believes the facts and is advised that they constitute an offence. He prosecutes accordingly, but the accused is acquitted either because the advice is wrong or because the information proves to be wrong or incomplete, or because some unexpected defence is revealed. ... It appears to me that, just as the prosecutor is justified in acting on information about facts given him by reliable witnesses, so he may accept advice upon the law given him by a competent lawyer. That is the course that a reasonable man would take and, if so, the so-called objective test is satisfied. Applying this principle to the case of a police officer who lays an information and prefers a charge, and at every step acts upon competent advice, particularly perhaps if it is the advice of the legal department of Scotland Yard, I should find it difficult to say that that officer acted without reasonable and probable cause. I assume throughout that he has put all the relevant facts known to him before his advisers.”

An issue arose in Rudall as to whether the test in Coudrat in the last sentence of sub-para. c of the quotation, namely that it was sufficient for the officer to lay a charge if there was a case which was fit to be tried, such that it was not necessary for the officer to believe that the defendant was probably guilty. In her analysis at para. 80, Lambert J stated that she did not accept that the evidential Code for Prosecutors was the correct test for the purpose of examining whether there is reasonable and probable cause. She said: “The exercise undertaken by the prosecutor in that context is to identify whether there is a realistic prospect of conviction which is a different, and higher, threshold than that which I must apply when considering whether there is a case fit to be tried or a proper case to lay before the court. The intensiveness of the scrutiny to be applied to the evidence is correspondingly different and greater than that relevant to the consideration of reasonable and probable cause.”

This view of the law has been confirmed by the clarification on this point by the Privy Council, obiter but intended expressly to clarify the law, in the Privy Council case of Stuart v A-G for Trinidad and Tobago [2022] UKPC 53 at [26] per Lord Burrows with whose judgment the other Justices agreed:

“26.

Nevertheless, and although nothing turns on it in this case, there is one point on the law which it is helpful to clarify. This concerns the question as to what the police officer’s honest (and reasonably held) belief must be about in the context of deciding whether there is a lack of reasonable and probable cause. It has commonly been stated that the honest belief must be as to the accused’s guilt in respect of the offence charged: see Hicks v Faulkner (1878) 8 QBD 167, 171, per Hawkins J, which was approved by the House of Lords in Herniman v Smith [1938] AC 305. But in the Board’s view, the principled and correct approach was articulated by Lord Denning in the House of Lords in Glinski v McIver [1962] AC 726. He said at pp 758-759:

“[T]he word 'guilty' is apt to be misleading. It suggests that in order to have reasonable and probable cause, a man who brings a prosecution, be he a police officer or a private individual, must, at his peril, believe in the guilt of the accused. That he must be sure of it, as a jury must, before they convict. Whereas in truth he has only to be satisfied that there is a proper case to lay before the court. … After all, he cannot judge whether the witnesses are telling the truth. He cannot know what defences the accused may set up. Guilt or innocence is for the tribunal and not for him ... So also with a police officer. He is concerned to bring to trial every man who should be put on trial, but he is not concerned to convict him. ...No, the truth is that a police officer is only concerned to see that there is a case proper to be laid before the court." (Apart from second sentence, emphasis added)

It therefore follows that insofar as a higher standard is expected of Crown Prosecutors in the current guidance of whether or not to prosecute, that does not provide a definition of whether or not it is proper for a case to be laid before the Court. This is different from the higher realistic prospect of success test under the Code for Crown Prosecutors which involves determination of whether a fair-minded tribunal properly applying the law would be more likely than not to convict, and if it is in the public interest to proceed. The Court will therefore accept the law as articulated to this effect by Lambert J in Rudall v CPS at [76] and by Lord Burrows in Stuart at [26].

A prosecutor may not pick and choose so as to rely only on portions of the evidence that support prosecution. However, the prosecutor is not bound to assume that a theory put forward by the defence is sound, but in certain cases “on the explanation given... the reasonable and probable cause cease[s]”: Musgrove v Newell (1836) 150 ER 567 at p.568. Similarly, in Herniman v Smith [1938] AC 305, Lord Atkin said at p.319: “It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is reasonable and probable cause for a prosecution”. Herniman was approved by Viscount Simonds in Glinksi at p.745.

More recently, in Hughes, Jay J cited Glinski, Coudrat and Rudall and held (judge’s emphasis): “The authorities which I have cited demonstrate that the CPS’s failure to undertake a line of inquiry which might just have been relevant to the Claimant’s defence does not negative the existence of reasonable and probable cause” [105].

Similarly, Jay J held that the fact that almost no work had been done on disclosure prior to charge (i.e. there were no disclosure schedules, and a review of unused digital material had not even been commenced - see [28]) did not have a bearing on reasonable and probable cause: “even taking the matter at its very highest I do not think that full disclosure was capable of more than indicating possible lines of defence for the Claimant. That is not relevant to the existence or otherwise of reasonable and probable cause” ([106]).

The Court of Appeal in the case of Hughes v HMRC [2025] EWCA Civ 113 provided guidance in respect of the application of the reasonable and probable cause test at the stage of the charging decision, which is only the first step in a multistage process. Although the decision of the Court of Appeal was to refuse permission to appeal and is therefore not generally reported, this decision in Hughes appears on Bailii and it contains a clear statement of general principle of broader application. At para. 18, the Court (William Davies and Jeremy Baker LJJ) said:

“We reject the proposition that the requirement of "a fit case to be tried" means that, were the case not ready to be placed before a jury the day after the charges were laid, it would not meet that test. This is not what evidential sufficiency to support the charges means. The argument betrays a profound misunderstanding of the criminal justice system. The laying of a criminal charge is the first step in a multi-stage process. For any number of reasons the prosecution case as put at the outset will evolve. It may be that, whether in response to matters raised by the defence or otherwise, the nature and focus of the prosecution case will change completely. That does not mean that the original decision to prosecute lacked reasonable and proper cause.”

If it is established that there is relevant material that was not placed before the prosecutor the Court will assess what difference it would have made to the charging decision. In Alford v Chief Constable of Cambridgeshire Police [2009] EWCA Civ 100 the Court of Appeal agreed with the first instance judge’s view that a report, which clearly should have been placed before the CPS and the prosecutor, would have weakened the strength of the evidence but the “advice and the decision would probably have been the same” [46].

A malicious prosecution claim may be based on a wrongful decision to initiate criminal proceedings and/or the wrongful continuation of criminal proceedings. It was said at first instance in Tims v John Lewis & Co Ltd [1951] 2 KB 459, at p.472, that a prosecutor who continues with the prosecution after “something comes to light which shows the prosecution to be in fact groundless” will “possibly have no reasonable or probable cause for continuing the prosecution and at any rate will be guilty of malice” if he does not inform the Court of the facts that he has since discovered. The decision was reversed on another point by the House of Lords, but not on this point: see [1952] A.C. 676 (HL).