B3/2001/2604
Neutral Citation Number: [2002] EWCA Civ 649
IN THE SUPREME COURT OF JUDICATURE          
IN THE COURT OF APPEAL (CIVIL DIVISION)    
ON APPEAL FROM WOLVERHAMPTON COUNTY COURT 
(His Honour Judge Geddes) 
							Royal Courts of Justice 
							Strand 
							London WC2A 2LL 
 
							Wednesday, 24th April 2002 
B e f o r e:

LORD JUSTICE PILL
LORD JUSTICE CHADWICK

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PAUL SPENCER

Applicant

‑v‑

CHIEF CONSTABLE OF THE WEST MIDLANDS POLICE

Respondent
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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0170 421 4040
Official Shorthand Writers to the Court)
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MR PEARSE‑WHEATLEY (Instructed by Maurice Andrews, Alfred Andrews House, 180‑182 Soho Hill, Hockley, Birmingham, B19 1AG) appeared on behalf of the Applicant.
MR RICHARD PERKS (Instructed by Legal Services, Civic House, 156 Great Charles Street, Birmingham B3 2HN) appeared on behalf of the Respondent.
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J U D G M E N T

Wednesday, 24th April 2002 
1.	LORD JUSTICE PILL: This is an application for permission to appeal against the judgment of His Honour Judge Geddes at Wolverhampton County Court sitting at Worcester on 14th November 2001. The applicant, Mr Paul Spencer, was awarded damages in the sum of £4,000 for assault, the assault being by officers of the West Midlands Police Force whose Chief Constable is the proposed respondent. 
2.	The incident out of which the claim arose occurred on the evening of 26th March 1996. Two police officers, Constable Hoare and Constable Smith, spoke to the applicant in Maxwell Road, Wolverhampton. An incident then occurred which according to the officers assumed serious proportions. They regarded it as serious and Constable Hoare drew his CS spray canister and discharged a burst at the applicant's face. A crowd gathered and there was evidence that someone was shouting: “Kill the police.” Constable Hoare also drew his baton. The applicant was arrested, being told by Constable Smith: “You are under arrest for an affray and assaulting me and my colleague.” 
3.	Later that night the applicant was charged with affray and two assaults. He was indicted with one count of affray, but the indictment was later amended to include counts of assault. The applicant was acquitted by the jury on all counts and subsequently brought the present proceedings against the police force. Wrongful arrest and detention and malicious prosecution were alleged, as well as the claim of assault which was determined in the applicant's favour and for which damages were awarded. Questions were posed for the jury's consideration in the civil trial. Upon receiving answers to those questions the judge gave a ruling as to the consequences. 
4.	This is a renewed application. I refused permission on paper. I identified two issues which it appeared to me the applicant was seeking to make in his skeleton argument settled by counsel, Mr Pearse‑Wheatley, and I directed the presence of the proposed respondent by counsel and the filing by and on his behalf of a skeleton argument. At the hearing the court has heard Mr Pearse‑Wheatley orally and has considered the skeleton argument of Mr Perks for the proposed respondent, along with brief oral submissions from him. 
5.	I refer first to the questions which were posed for the consideration of the jury following the giving of evidence. It is necessary to set them out in full with the answers: 
“1.Have the Police satisfied you that it is more probable than not that Mr Spencer pushed PC Hoare in the chest at the start of the incident?
No 
2.Have the Police satisfied you that it is more probable than not that when Mr Spencer raised his left hand/both hands that PC Hoare believed that Mr Spencer was about to strike him?
Yes
3.Have the Police satisfied you as more likely than not that Mr Spencer was resisting the efforts of PC Hoare and PC Smith to restrain him immediately prior to the use of CS spray by PC Hoare?
Yes 
4.Have the police satisfied you as more likely than not that Mr Spencer behaved in a threatening manner to PC Smith and/or PC Hoare prior to PC Smith hitting Mr Spencer on his right leg with a baton?
No
5.Have the Police satisfied you as more likely than not that as PC Mootham reached PC Hoare, PC Smith and Mr Spencer, Mr Spencer was kicking out?
No
6.Has Mr Spencer satisfied you as more probable than not that PC Smith or another officer hit him on the head with a baton or kicked him causing the wound to his head? 
Yes”
6.	When I adjourned the application for an oral hearing inter partes, I stated on 14th March 2002: 
“As I understand the grounds, the submission is that, given the jury's answers:
1.The prosecution for affray, though not that for ABH, was malicious. 
2.It was the length, and not the fact, of detention which was tortious.” 
7.	I deal with the second point first. My understanding was correct. However, upon a consideration of the respondent's skeleton argument, it is plain that there is no merit in this proposed ground of appeal. Mr Perks, who was present at the trial, states, and Mr Pearse‑Wheatley does not dissent from the view, that until after the jury's verdicts the case was argued on the basis that if the arrest was lawful the detention too was lawful. It is sought to make the point that, on the jury's answers, giving an entirely different view of the incident from that which had been presented in evidence by police officers, the detention would have been much shorter had those facts been in the mind of the custody officer. This point was not taken during the hearing. It would have required much closer examination of the position with the custody officer and other witnesses. It is not, in my judgment, open to take the point now. 
8.	My understanding of the other point was only partially correct. I had understood from the skeleton argument - paragraph 2.5 - that it was not going to be alleged that the prosecution for assault, as distinct from affray, was a malicious prosecution. The skeleton argument stated: 
“2.5Although PC Hoare may have had reasonable grounds to arrest the Claimant for assault on the basis that he believed the Claimant was going to strike him, it does not follow that a prosecution for affray could have proceeded on the basis of this allegation alone.” 
9.	It is then suggested that the prosecution was “actually” founded on further allegations against the applicant which the jury have found not to be true. 
10.	What Mr Pearse‑Wheatley has submitted orally, however, is that the admission only relates to the arrest. It is conceded that an arrest for assault would have been justified by reason of the jury's answer to question 2; but it is submitted that prosecution for assault would not have been justified, still less either arrest or prosecution for affray. 
11.	Mr Pearse‑Wheatley submits that the judge's ruling following the verdicts of the jury on malicious prosecution, the burden of proving which is of course on the applicant, was wrong. The judge stated this: 
“So far as malicious prosecution is concerned, it seems to me quite clear that the police, in initiating those proceeding, did so with reasonable and probable cause or, put another way, the Claimant has not satisfied me that they did so without reasonable and probable cause, the reasonable and probable cause being the fact of the assault, or what the police believed to be the assault, and indeed that of course was what he was essentially prosecuted for. The fact that the police elaborated on that in a way which the jury have not accepted is not a basis for saying that they had no reasonable or probable cause; they did, albeit one which was somewhat less than the cause which they claimed to have. In other words, the facts were somewhat different from the ones which they claimed were the basis of that prosecution. But the reasonable or probable cause here, as I say, was the assault which the jury have found PC Hoare believed in. So that is the answer to that.”
12.	Mr Pearse‑Wheatley's submission is that on the jury's findings serious and plain lies were told by the police officers. They had embellished their account of the incident. It is submitted that the only reasonable conclusion is that they have brought the prosecution to cover their conduct and the false account of the incident which they had reported. If they had told the truth at the time, there would have been no prosecution either for assault or for affray. 
13.	Mr Pearse‑Wheatley does not dispute that the elements necessary for a charge of assault were present by reason of the jury's answer to question 2. But, he submits, in accordance with the CPS standing instructions that for an assault such as that no prosecution is brought, on the basis of the jury's findings no prosecution for affray would have been brought. The only explanation for the fact that any prosecution was brought was that it was a malicious prosecution. There were strong allegations against the applicant. They were rejected by the jury. It should have followed from the jury's answers to questions 4, 5 and 6 that the judge rule that there had been a malicious prosecution. 
14.	Mr Perks disputes that proposition. He submits that, upon the jury's answer to question 2, the ingredients both of the offence of assault and the offence of affray were established. The judge, whose duty it was, could only rule in the manner he did in the circumstances. 
15.	I should add that Mr Pearse‑Wheatley has alleged in his skeleton argument that other and different questions should have been put. It has been no part of his case that it was other than the duty of the judge to rule upon the question upon which he did rule. It is, nevertheless, necessary to consider the duties of the judge in a situation such as this. 
16.	A necessary element of the tort of malicious prosecution is that the proceedings complained of must have been instituted or continued without reasonable and probable cause. The existence of reasonable and probable cause is for the judge and not for the jury. However, the existence of reasonable and probable cause has to be answered in the light of the ascertained facts of the particular case. The ascertainment of facts, where they are in dispute, is a matter for the jury: Herniman v Smith [1938] AC 305. Moreover, although the question of honest belief in the guilt of the accused is relevant to the question of reasonable and probable cause, it should not be submitted to the jury unless there is affirmative evidence of want of such belief. Evidence which shows malice does not per se amount to evidence of lack of honest belief, for a prosecutor actuated by malice may have an honest belief in the guilt of the accused (Clerk & Lindsell on Torts, 18th edition, paragraph 1623, by reference to the decision of the House of Lords in Glinski v McIver [1962] AC 726). 
17.	In those circumstances the judge was entitled to make the ruling he did. It is plain from the jury's answer to question 2 that, notwithstanding the answers to the later questions, the judge was entitled to say that the lack of reasonable and probable cause had not been established. On the finding of the jury, the police officers had such cause, or at any rate the judge was entitled to find that they had such reasonable and probable cause, to bring the prosecution they did. It is perhaps a surprising feature of the law that, if that is the case, false evidence may be given by police officers without rendering a prosecution malicious within the test imposed by the law. But I accept the submission of Mr Perks that, while a prosecution for perjury might have been a possibility, as to which I make no comment, there can be no criticism of the judge for making the ruling he did upon receipt of the verdicts of the jury. The other questions which Mr Pearse‑Wheatley suggests might have been asked would not have thrown more light on this question. 
18.	I add that the claim would, in any event, have failed on a point of pleading. In the particulars of claim dated 28th August 1998 prepared on behalf of the claimant, particulars were given of lack of reasonable and probable cause and malice (page 63 of the bundle): 
“(a)At a time unknown to the Plaintiff but prior to his being charged the said Police officers fabricated a false account of the events giving rise to his arrest, in that they falsely alleged that the Plaintiff had raised his fist [containing] a black shiny object, believed to be a weapon, and assaulted the said officers.” 
19.	There is no allegation of a lack of reasonable and probable cause arising from the other evidence upon which the jury made a finding in the applicant's favour. It may also be noted that the point which was relied on in the pleading was in the event conceded by the applicant. He accepted that he did have in his hand an object, and of course it was upon his conduct in raising his arm when holding that object that the jury reached the answer they did on question 2. In my judgment there is no arguable case that there was any defect in this trial, and I see no merit in that ground of appeal in the circumstances of this case. 
20.	The further point made is in relation to the award of damages of £4,000. It is submitted that this case calls for aggravated damages, and reliance is understandably placed by counsel upon the unlawfulness of the conduct by the police officers by way of assault and the seriousness of the assault which was committed. I have regard to the authorities on exemplary damages, in particular Thompson v Commissioner of Police of the Metropolis [1997] All ER 762. In my judgment this was not a case where the judge was at fault either in failing to make a specific award of exemplary damages or in his assessment at the sum of £4,000 of the appropriate award. 
21.	For the reasons I have given, I would refuse this application. 
22.	LORD JUSTICE CHADWICK: The claimant in an action for malicious prosecution must establish four elements: first, that he was prosecuted by the defendants; second, that he was acquitted; third, that the prosecution was without reasonable and probable cause; and fourth, that the prosecution was malicious. It is for the judge to decide whether there was want of reasonable and probable cause. He should leave to the jury disputed facts which are relevant to that determination. The question whether the prosecutor honestly believed the facts which are said to support the decision to prosecute is a fact relevant to that determination. But that question should not be put to the jury unless there is affirmative evidence of a lack of honest belief: see the analysis in the speech of Viscount Simonds in Glinski v McIver [1962] AC 726 at pages 742 to 744. 
23.	In the present case it was accepted on behalf of the claimant that, in the context of the judge's determination whether or not there was reasonable and probable cause to bring the prosecution there was no question of honest belief to be put to the jury: see the transcript of proceedings 12th November 2001, at page 1 between C and D. The judge was therefore right to treat the question whether there was reasonable and probable cause for the initiation of the prosecution as a question for him alone. 
24.	On the basis of the evidence which the police officers were expected to give, and did give, at the criminal trial there was only one possible to answer to that question. As the judge said, the reasonable and probable cause was the assault alleged, coupled with the perceived threat of violence. The fact that the jury at the criminal trial had found that the facts which the police officers alleged were not made out - or that some of them were not made out - is not of itself relevant to the question whether there was reasonable and probable cause for bringing the prosecution. The fact that the jury at the civil trial found that the facts which the police officers alleged were not made out might have been relevant to the distinct and separate question whether the police had had any honest belief in those facts; and, if that question had been put to the jury, their answer would have been relevant to the question of reasonable and probable cause which the judge had to decide. But there was no affirmative evidence of lack of honest belief; and rightly, the question of honest belief was not put to the jury. The judge was entitled to proceed - indeed was bound to proceed - on the basis that honest belief in the truth of the facts was not in issue. It follows that I am not persuaded that there is any real prospect of success in an appeal against the judge's refusal to hold that malicious prosecution had been made out. 
25.	On the other points raised by the applicants - including the complaint in relation to the judge's failure to award exemplary damages - I agree with the observations of Pill LJ. There is nothing that I wish to add on those points. 
26.	I too would refuse this application. 
Order: Application refused with costs. The question of enforcement and, if enforcement, quantum to be referred to a cost's judge.