Hunt v AB; [2009] EWCA Civ 1092; [2009] WLR (D) 305

TORT — Cause of action — Malicious prosecution — Complainant alleging rape — Accused prosecuted by CPS but eventually acquitted — Whether complainant liable as prosecutor in criminal proceedings

Hunt v AB

[2009] EWCA Civ 1092; [2009] WLR (D) 305

CA: Sedley, Wall, Moore-Bick LJJ: 22 October 2009

In order to found a cause of action in tort for malicious prosecution against a complainant, it had to be shown that the complainant had deliberately manipulated the police and the CPS into taking a course which they would not otherwise have taken.

The Court of Appeal so held in a reserved judgment in dismissing an appeal by the claimant, Anthony Hunt, against the decision of Blake J [2008] EWHC 2756 (QB) that the defendant, AB (the complainant in criminal proceedings brought against the claimant by the Crown Prosecution Service), was not the prosecutor and so was not amenable to an action for malicious prosecution.

SEDLEY LJ said that AB was a married woman who allowed or invited the claimant, a work colleague, into her home. An act of sexual intercourse took place which he always asserted was consensual and she always asserted was not. She did not go to the police but some years later a colleague in whom she had confided did so. The police approached AB and persuaded her to give evidence. The claimant was convicted of rape, but after he had served some two years in prison the conviction was overturned. He then issued the present proceedings against AB for malicious prosecution, which were dismissed by the judge on a preliminary issue. The prosecution was in every material sense the responsibility of the police and the CPS. AB, far from instigating it, did nothing to promote a charge until the police, alerted by a friend in whom she had confided, approached her and persuaded her to give evidence. If she were to be regarded as a prosecutor, so was every key witness whom an acquitted defendant considered to have lied, with incalculable consequences for both the civil and criminal justice systems. The fact that AB did nothing designed to promote the prosecution of the claimant was a sufficient ground for the judge’s decision that she was not the prosecutor, it was not a necessary one. 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 be necessary to establish that she had deliberately manipulated them into taking a course which they would not otherwise have taken if, pursuant to Martin v Watson [1996] AC 74, she was to be regarded in law as the prosecutor. The assertion that the claimant was telling the truth and the defendant was not, even if a jury were satisfied of it, would not establish that.

Wall and Moore-Bick LJJ delivered concurring judgments.

Appearances: Mark Warby QC and Stephen Ferguson (instructed by Coyle White Devine) for the claimant; Roger ter Haar QC, Anthony Metzer and Sarah Harris (instructed by Lovells) for the defendant.

Reported by: Geraldine Fainer, barrister