LAW REPORT: Bind-over no bar to action against police - Hourihane and a nother v Metropolitan Police Commissioner. Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Beldam and Lord Justice Hoffmann), 19 Decemb er 1994

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A defendant against whom charges had been dismissed with costs was not automatically precluded from claiming that he had won the case and suing the police for malicious prosecution simply because he had agreed to be bound over to keep the peace.

The Court of Appeal unanimously dismissed an appeal by the Metropolitan Police Commissioner against the refusal of Judge Quentin Edwards to strike out a claim for malicious prosecution brought against him by the plaintiffs, Joanna and Sarah Hourihane.

The two sisters had been arrested after an incident outside a public house and were charged with assault and disorderly behaviour. At Old Street Magistrates' Court, both disputed the charges and, subject to the court's approval, the Crown Prosecution Service offered not to proceed if they agreed to be bound over to keep the peace and be of good behaviour. They agreed and each was bound over, in her own recognisance of £50, for six months; the charges were dismissed and they were granted costs from central funds.

They subsequently brought an action for damages for false imprisonment, assault and battery and malicious prosecution. The Commissioner sought to strike out the action on the ground that prosecution had not been determined in the plaintiffs' favour.

Colin Challenger (Metropolitan Police Solicitor) for the Commissioner; Tim Owen (Magrath & Co) for the plaintiffs.

Lord Justice Beldam said: The fact that on the occasion when the charges were dismissed the plaintiffs were bound over to keep the peace and be of good behaviour could not of itself bar their claim that the dismissed charges were maliciously brought.

An acquitted defendant might be bound over. Nor did the fact that an acquitted defendant had been bound over necessarily mean the justices were satisfied he had been guilty of conduct amounting to a breach of the peace. Justices need only have material before them from which they could reasonably consider there was a risk of a breach of the peace in the future unless action was taken to prevent it.

There might be many reasons why a defendant would prefer to agree to be bound over to keep the peace in future than to run the risk of a conviction. If he was not convicted, the fact that he was bound over would not form part of his record. It was therefore impossible to draw any inference that proceedings had terminated adversely to a defendant from the mere statement that he was bound over to keep the peace, or from his agreement to that course. In the present case the record showed that, no evidence having been offered against the plaintiffs, the charges for which they were prosecuted were dismissed. As the issue in the civil proceedings was whether the charges were brought maliciously and without reasonable and probable cause, the existence of a record showing that, following dismissal of the charges, the plaintiffs were bound over could not be a good ground for striking out their claims.

Lord Justice Hoffmann gave a concurring judgment.

Sir Thomas Bingham MR, also concurring, said a claim could be struck out only if it was bound to fail.