(1) Joanna Louise Hourihane (2) Sarah Jane Hourihane (Plaintiffs v The Commissioner of Police for The Metropolis (Defendant
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BELDAM,LORD JUSTICE HOFFMANN,THE MASTER OF THE ROLLS |
| Judgment Date | 19 December 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J1219-4 |
| Date | 19 December 1994 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No. CCRTI/93/0791/F |
[1994] EWCA Civ J1219-4
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Quentin Edwards Q.C.)
Before: The Master of The Rolls (Sir Thomas Bingham) Lord Justice Beldam and Lord Justice Hoffmann
No. CCRTI/93/0791/F
MR. T. OWEN (instructed by Messrs. Magrath & Co, West End) appeared on behalf of the Plaintiffs.
MR. C. CHALLENGER (instructed by the Solicitors Department of the Metropolitan Police, London SW1H) appeared on behalf of the Defendant.
Shortly after midnight on 25th November 1989, two of the appellant's officers, P.C. McClintock and P.C. Allen, were called to a disturbance in Hoxton Street, London N1, outside the London Apprentice Public House. Among a group of young people frustrated by the cancellation of a party were the respondents to this appeal, Joanna and Sarah Hourihane who are sisters. According to the appellant's officers, when asked to leave, Sarah Hourihane refused, shouting swear words, and was arrested for disorderly conduct. They said that when she resisted, Joanna Hourihane joined in trying to pull P.C. McClintock's arm away from her sister, and that the respondents continued to shout and swear: Joanna Hourihane then struck P.C. McClintock in the face and on the leg and was arrested for assault. The respondents were taken to City Road Police Station and shortly before 2.30 a.m. were charged. Joanna Hourihane was charged with assaulting P.C. McClintock in the execution of his duty contrary to sec. 51(1) of the Police Act 1964. Sarah Hourihane was charged with disorderly conduct contrary to sec. 5 of the Public Order Act 1986. They were bailed to appear at Old Street Magistrates Court. After a remand, the charges came before the magistrate on 1st February 1990. The Crown Prosecution Service conducted the case for the prosecution. The respondents were represented and disputed the police officers' accusations. Subject to court approval, the prosecution offered not to proceed with the charges if the respondents consented to be bound over to keep the peace and be of good behaviour. They agreed. The prosecutor outlined the facts to the magistrate and then offered no evidence. Each of the respondents was bound over in her own recognisance of £50 to keep the peace and be of good behaviour for six months. The charges against them were dismissed. They applied for costs which were awarded from central funds. On 24th January 1992 the respondents commenced proceedings against the appellant claiming damages for false imprisonment, assault and battery and malicious prosecution. In their particulars of claim they alleged that the proceedings in the Magistrates Court had terminated in their favour. This the appellant denied and on 15th December 1992 applied to strike out their claims for malicious prosecution. The district judge struck out the claims but on appeal His Hon. Judge Quentin Edwards restored them. From the judge's order, the appellants now appeal. The question raised is whether by agreeing to be bound over in these circumstances the respondents are precluded from claiming that the proceedings in the Magistrates Court were decided in their favour. The appellant argued that in an action for malicious prosecution it was essential for a plaintiff to show that the prosecution had determined in his favour. A person who agrees to be bound over to keep the peace and be of good behaviour must be taken to have admitted the existence of facts which would justify a magistrate in making such an order against him. Where those facts arise from the same events which gave rise to the charge for which he was prosecuted, he cannot contend that the outcome of the case was favourable to him.
The minute of adjudication of the Old Street Magistrates Court was said to be conclusive evidence that the proceedings did not terminate in the respondents' favour. But the minute shows that the specific charges brought against the respondents were in each case dismissed after a plea of not guilty was tendered. It records that in each case the defendant was bound over to keep the peace in the sum of £50 for six months, and that an order for costs out of central funds was made in the defendants' favour. Such orders would only be appropriate in the case of successful defendants. See the Guide to the Award of Costs in Criminal Proceedings issued by the Lord Chief Justice in May 1991.
The magistrate ordered the respondents to be bound over exercising his power under the Justices of the Peace Act 1361 or at common law. These were not proceedings brought on complaint to the magistrate under sec. 115 of the Magistrates Courts Act 1980, a power first introduced by sec. 25 of the Summary Jurisdiction Act 1879.
Had the respondents' claim been founded on such proceedings and had they been bound over under that section, the appellant's submission would have been correct, see Basebe v. Matthews [1867] LR 2 Common Pleas 684 and Everett v. Ribbands [1952] 2 QB 198. A record that on the occasion when the charges against the respondents were dismissed they were bound over to keep the peace and be of good behaviour cannot of itself bar their claim that the dismissed charges were maliciously brought. An acquitted defendant may be bound over to keep the peace, see Sheldon v. Bonfield Justices [1964] 2 QB 573, R. v. Woking Justices, Ex Parte Gossage [1973] 1 QB 448 and see R. v. Hendon Justices, Ex Parte Gorchein [1973] 1 WLR 1502. Nor does the fact that an acquitted defendant has been bound over to keep the peace and be of good behaviour necessarily mean that the justices were satisfied that he had on the occasion in question been guilty of conduct amounting to a breach of the peace. Justices need only have...
To continue reading
Request your trial