Jason Beer QC and Andrew Waters successfully represented the Defendants in Trevor Howarth v. (1) Chief Constable of Gwent Constabulary (2) Gwent Police Authority [2011] EWHC 2836 (QB)

Mr Howarth brought a claim against the Chief Constable and the Police Authority for damages for malicious prosecution and misfeasance in public office. He had been charged with, but acquitted of, perverting the course of justice. He had worked for a firm of solicitors who had represented a client charged with road traffic offences. The client had been acquitted on the basis that he had not had knowledge of a notice of intended prosecution served at his parents' address, his mother confirming on oath that the notice had not been received. Subsequently, the whole family admitted that they had lied, pleading guilty to perjury and perverting the course of justice. The Claimant was alleged to have instigated the deception. The case against him was based partly on documents in the files of the firm of solicitor for whom he worked and partly on the evidence of the client and his family. The Claimant's case was that the police had held no genuine belief in his guilt but had pursued the prosecution with the dominant motive of wishing to damage the solicitor’s firm, it having achieved notoriety for successfully defending a number of motoring prosecutions on technical points.

Dismissing the claim, Eady J held that, in order to establish malicious prosecution, a claimant had to prove that the prosecutor had no reasonable and probable cause for the prosecution and that he had acted maliciously. It was clear that, throughout, the police had sought guidance from the Crown Prosecution Service and from Counsel. The Claimant would therefore have to establish, on a balance of probabilities, that despite that advice, the police officers had not believed in the prosecution or that they had believed, for other reasons, that the evidence did not give rise to "reasonable and probable cause". The question of reasonable and probable cause broke down into two issues: firstly, the subjective question of whether the prosecutor had an honest belief in the relevant charge, in the sense that he believed it to be warranted; and secondly, the objective question of whether the circumstances were such that they would lead an ordinary and prudent man to believe in the charge. In relation to the second question, what mattered was whether the material before the prosecutor would be sufficient to make out a prima facie case and to warrant the preferring of a criminal charge, even though it might not be enough to justify a finding of guilt. It was not enough for a claimant to point to inconsistencies in the evidence which might require explanation or clarification, Moulton v Chief Constable of the West Midlands [2010] EWCA Civ 524 followed. Nor was it necessary for the prosecutor to test the full strength of any possible defence, Glinski v McIver [1962] AC 726 and Coudrat v Revenue and Customs Commissioners [2005] EWCA Civ 616 followed. Moreover, if the prosecutor had placed all the relevant facts before counsel and acted in good faith on his opinion, then he would not be liable. In order to show malice, a claimant had to prove to the civil standard that the prosecutor had intended to subvert the legal process for some extraneous and improper purpose. The court's task was to ascertain the evidential material known to the police officers at the time of charging; to consider what that evidence would, if true, convey to a reasonable observer; to decide in the light of those matters whether the officers genuinely believed that there was a case fit to be placed before the court; and if satisfied that they did have such a belief, then to consider whether, objectively judged, there was indeed such a case. In the instant case there was ample material to support "reasonable and probable cause". In light of the evidence available to them at the time of charge, the police officers genuinely believed that there was a case fit to be placed before a jury and, objectively judged, there was indeed such a case. In reaching those conclusions the court took into account, but did not regard as determinative, the legal advice given by counsel to the police. Neither Counsel nor the CPS were materially misled by the officers, and nor were the available facts not "fairly" laid before them. There was nothing to support the allegation of malice against the officers. They believed, at all material times, that there was a case against the Claimant fit to be placed before the court. Finally, there was nothing to underpin the claim for misfeasance in public office. The officers had clearly been acting within the scope of their powers at all times.