Prosecution for indecent exposure malicious

LAW REPORT 19 July 1995
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Martin v Watson; House of Lords (Lord Keith of Kinkel, Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead and Lord Steyn) 13 July 1995

A person who, by making a false complaint, procured the institution of criminal proceedings by the police was to be regarded as responsible in law for the initiation of the prosecution, and could therefore be sued for malicious prosecution, even though it was the police who made the final decision to proceed.

The House of Lords unanimously allowed an appeal by the plaintiff, John Martin, reversed the decision of the Court of Appeal (Independent, 26 January 1994; [1994] QB 425) and restored that of Judge Goodman on 13 July 1992, awarding the plaintiff pounds 3,500 damages against the defendant, Mrs Ulka Watson, for maliciously prosecuting him for indecent exposure.

Robert Sherman and Jonathan Rose (Wellers, Bromley) for the plaintiff; James Munby QC and Richard Christie (C R Burton, Penge) for the defendant.

Lord Keith said the parties, who lived next door to each other in Orpington, had a long history of mutual antagonism and acrimony. Eventually the defendant began to make accusations that the plaintiff had indecently exposed himself to her.

The present action arose out of an incident which was alleged to have occurred on 20 July 1989. The defendant called the police and stated that the plaintiff had appeared over the garden fence at about 5pm. He was standing on something behind the fence and was naked. He shook his private parts at her.

The next day DC Haynes took a full witness statement, recording that the complainant was prepared to attend court and give evidence. The plaintiff was later arrested, interviewed at the police station and bailed to attend court. He did so but the Crown Prosecution Service offered no evidence and he was discharged. He then sued the defendant for malicious prosecution.

As correctly stated in Clerk & Lindsell on Torts (16th edition, 1989) at para 19-05: "In an action of malicious prosecution the plaintiff must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious."

The judge found all of these proved. It was not disputed that he was entitled so to find as regards the last three ingredients; but it was maintained by the defendant, and the majority of the Court of Appeal agreed, that he was not entitled to find that she had set the law in motion against the plaintiff.

In his Lordship's opinion, the mere fact that an individual had given information to the police which led to their bringing a prosecution did not make that individual the prosecutor. But where the defendant in an action for malicious prosecution was in substance the person responsible for the prosecution having been brought, the fact that he was not technically the prosecutor should not enable him to escape liability.

Where an individual falsely and maliciously gave a police officer information indicating that some person was guilty of a criminal offence and stated that he was willing to give evidence in court of the matters in question, it was properly to be inferred that he desired and intended that the person he named should be prosecuted.

Where the facts relating to the offence could be within the knowledge only of the complainant, as was the position here, then it became virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution was instituted by the police officer the proper view of the matter was that the prosecution had been procured by the complainant.

In the circumstances of the present case, the judge was right to conclude that the defendant was to be regarded as a prosecutor for the purpose of an action for malicious prosecution.

His Lordship rejected the argument that members of the public would be discouraged from bringing criminal activities to the attention of the police if they feared they might find themselves harassed by actions for malicious prosecution. It must be borne in mind that in actions for malicious prosecution the onus lay on the plaintiff to prove malice and want of reasonable cause. This would not be possible in the case of genuine complaints.

Lord Slynn, Lord Lloyd, Lord Nicholls and Lord Steyn agreed.

Paul Magrath, Barrister

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