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

The above suffices for the purpose of summary judgment and/or strike out. Nevertheless, the judgment goes on to consider whether there is a case with a real prospect of success that the prosecution was malicious. First, the necessary legal test will be considered. It has been said that malice means “some other motive then a desire to bring to justice a person whom [the accuser] honestly believes to be guilty.”: see Brown v Hawkes [1891] 2 QB 718, 732 per Cave J.

In Glinski, Lord Devlin said at 766: "Malice, it is agreed, covers not only spite and ill-will but also any motive other than a desire to bring a criminal to justice." Or "any motive other than that of simply instituting a prosecution for the purpose of bringing a person to justice, is a malicious motive on the part of the person who acts in that way."

Malice can be inferred from the absence of reasonable and probable cause but not from a finding of lack of reasonable and probable cause where there is an honest but unreasonable belief: see Thacker v Crown Prosecution Service [1997] EWCA Civ 3000.

In Rees at paras. 88 - 89, McCombe LJ said the following:

“88.

Mr Simblet relied upon the case of Gibbs v Rea [1998] AC 786, a case in which the majority of the Privy Council found that malice could be inferred from the absence of evidence from the police officer who had sought the search warrant in issue. I refer to that case only for a citation in the majority opinion of the Board (given by Gault J) from the judgment of Lord Tenterden CJ in Taylor v Williams (1831) 2 B & Ad 845, 857 in which the Chief Justice had said,

“Why might not the forbearance of Taylor to give evidence at the trial... raise an inference that his motive was a consciousness that he had no probable cause for instituting the prosecution.” (emphasis added)

The italicised words serve to indicate that a prosecutor is guilty of malice if he is conscious that the case that he presents is not fit to go before the court.

89.

Mr Simblet rounded off this submission and the reference to Gibbs v Rea thus:

"…the dishonest pursuit of a case even in a "noble cause" is always malicious prosecution. It is an improper motive to act knowingly unlawfully. Pursuit of the ends of justice must mean pursuit by honest and lawful means, not just the conviction of the guilty at any cost. It is approaching perverse not to infer malice from the absence of reasonable and probable cause, particularly where Cook has failed to give any evidence as to why he had done what he did."

Mere incompetence or gross negligence falling short of reckless indifference will not suffice to prove malice. “A failure to take steps which it would be elementary for any reasonable person to take before instituting proceedings might in some circumstances serve evidentially as a pointer towards deliberate misuse of the courts process, but sloppiness of itself is very different from malice.” per Lord Toulson in Juman v A-G of Trinidad and Tobago [2017] UKPC 3 at [19].

Some definitions of malice have focused on the motive of the defendant in that it has been said that “an improper and wrongful motive lies at the heart of the tort”: see Williamson v A-G of Trinidad and Tobago [2014] UKPC 29 at [12] per Lord Kerr. Lord Kerr went on to say as follows at [12]:

“It must be the driving force behind the prosecution. In other words, it has to be shown that the prosecutor's motives is for a purpose other than bringing a person to justice: Stevens v Midland Counties Railway Company (1854) 10 Exch 352, 356 per Alderson B and Gibbs v Rea [1998] AC 786, 797D. The wrongful motive involves an intention to manipulate or abuse the legal system Crawford Adjusters Ltd (Cayman) v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17, [2014] AC 366 at para 101, Gregory v Portsmouth City Council [2000] 1 AC; 426C; Proulx v Quebec [2001] 3 SCR 9. Proving malice is a "high hurdle" for the claimant to pass: Crawford Adjusters para 72a per Lord Wilson.”

There are difficulties where a claimant has mixed purposes. It may be that it is necessary to show the predominant purpose is improper or that there is an improper purpose which negates a proper purpose. An example of an improper motive case where a re-trial was ordered is Paul v Chief Constable of Humberside [2004] EWCA Civ 308 where the improper motive considered was (paragraph 26), “that the police had been activated in their dealings with his client by an improper motive, namely that they wished to distract public attention from the fact that a young black man had died while lying on the floor in a police custody suite with his hands handcuffed behind his back. The fact that the conduct of the police was in question in relation to the events surrounding Mr Alder's death had induced them to take decisions they would not have taken in the way they did if there had not been this background, and these decisions had rebounded to Mr Paul's manifest disadvantage.”

To similar effect is a dictum of Lord Richards in Maharaj v A-G of Trinidad and Tobago [2024] UKPC 1 at 11:

“The element of malice requires the claimant to prove that the proceedings initiated by the defendant were not a bona fide use of the court's process. While proceedings brought in the knowledge that they were without foundation may be the most obvious case, it will be sufficient if, for example, the defendant was indifferent whether the charge was supportable and brought the proceedings for an illegitimate collateral purpose: see Willers v Joyce at para 55 per Lord Toulson.”

Para. 55 of Willers v Joyce involved consideration of the related tort of malicious abuse of process which was found to exist. Lord Toulson said the following in respect of malice:

“Malice is an additional requirement. In the early cases, such as Savile v Roberts, the courts used the expression “falso et malitiose”. In the 19th century “malitiose” was replaced by the word “malicious”, which came to be used frequently both in statutes and in common law cases. In Bromage v Prosser (1825) 4 B & C 247, 255, Bayley J said that “Malice, in common acceptation, means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse.” His statement was cited with approval by Lord Davey in Allen v Flood [1898] AC 1, 171. (For a recent discussion of the nineteenth century understanding of the meaning of “malicious” in the law of tort, see O (A Child) v Rhodes [2016] AC 219, paras 37 to 41.) As applied to malicious prosecution, it requires the claimant to prove that the defendant deliberately misused the process of the court. The most obvious case is where the claimant can prove that the defendant brought the proceedings in the knowledge that they were without foundation (as in Hobart CJ’s formulation.) But the authorities show that there may be other instances of abuse. A person, for example, may be indifferent whether the allegation is supportable and may bring the proceedings, not for the bona fide purpose of trying that issue, but to secure some extraneous benefit to which he has no colour of a right.The critical feature which has to be proved is that the proceedings instituted by the defendant were not a bona fide use of the court’s process. In the Crawford case Mr Delessio knew that there was no proper basis for making allegations of fraud against Mr Paterson, but he did so in order to destroy Mr Paterson’s business and reputation.” (emphasis added)

Winfield & Jolowicz on Tort 20th Edition at [20-016] refers to cases where motives are mixed and says “... We suggest that malice exists where the predominant purpose of the accuser is something other than the vindication of law.”

In the case of Rees v Commissioner for the Metropolitan Police [2018] EWCA Civ 1587, the Court found that malice could be established notwithstanding that a prosecutor believed in the guilt of the accused. The reason for this was that it was found that the prosecution was heavily reliant on the evidence of a witness which the prosecutor procured by subornation amounting to a criminal intention to pervert justice. In that case, McCombe LJ held at [81] that “that bringing a prosecution in that manner is not "bringing a criminal to justice" at all.” McCombe LJ said at [90] that it was difficult to better what Mr Simblet (as he then was) counsel for an appellant in that case had submitted, namely that “…the dishonest pursuit of a case even in a "noble cause" is always malicious prosecution”. At para. 91, McCombe LJ said: “…I consider that DCS Cook's belief (as found by the judge) that the appellants were guilty of the murder cannot prevent the prosecution having been malicious. He knowingly put before the decision-maker a case which he knew was significantly tainted by his own wrongdoing and which he knew could not be properly presented in that form to a court. To find that the element of malice was not satisfied in this case, to my mind, would be, quite simply, a negation of the rule of law.”

In the same case, it was held that there was an inability for the prosecutor to show that there was a reasonable and probable cause because the subjective element could not be shown. The consequence of the finding of malice was that the prosecutor did not have a subjective reasonable and probable cause for a prosecution if they present a case heavily reliant upon evidence which, because of his own misconduct, they know is "certain or at least highly likely" to be ruled inadmissible by any trial judge.

A question which arises is whether Rees was a case with a mixed motive such that an object of bringing the accused to justice is not an answer to a malicious prosecution case even where the improper motive is not a predominant one. Properly analysed, Rees is a case where the motive to bring a person to justice is negatived by the criminal conduct of the prosecutor by suborning a witness. In such a case, there is no longer a mixed motive: the effect of the criminal conduct has been to negative any motive of bringing a criminal to justice.

The above cases provide sufficient support for the conclusion that where there is a mixed purpose or motive in the tort of malicious prosecution, a predominant improper purpose or motive needs to be established for malice to be established.