Besnik Qema v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Sharp |
| Judgment Date | 02 May 2012 |
| Neutral Citation | [2012] EWHC 1146 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ11X00510 |
| Date | 02 May 2012 |
[2012] EWHC 1146 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Sharp DBE
Case No: HQ11X00510
Nicholas Bowen QC and Alex Gask (instructed by Guile Nicholas Solicitors ) for the Claimant
Mark Warby QC and Victoria Jolliffe (instructed by Simons, Muirhead & Burton) for the Defendant
Hearing date: Wednesday 29th February 2012
Introduction
This is an application by the Defendant, News Group Newspapers Limited, as publishers of the erstwhile newspaper, the News of the World, for summary judgment pursuant to CPR 24.2 and/or for an order striking out the claim pursuant to CPR 3.4(2) brought against it for malicious prosecution, by the Claimant, Besnik Qema. The action is brought against the Defendant on the ground that it is vicariously liable for the conduct of Mazher Mahmood (also known as the "Fake Sheikh") who was at the time material to this application, the investigations editor of the News of the World.
In an action for malicious prosecution a claimant must prove 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; second, that the prosecution was determined in his favour; third, that it was without reasonable and probable cause; and fourth, that it was malicious: see Lord Keith of Kinkel in Martin v Watson [1996] A.C. 74 at 80C (citing Clerk v Lindsell on Torts 16 th ed (1989) p. 1042, para 19–05).
Martin established that a private individual who does not sign the charge sheet or bring a private prosecution but who is a lay informant can nonetheless be treated as the prosecutor in certain circumstances, and it is part of the Claimant's case that Mr Mahmood, and therefore the Defendant, is properly to be regarded as the prosecutor for the purposes of this claim.
The Defendant strongly disputes that the Claimant will be able to establish any of the elements necessary to found a claim for malicious prosecution. But this application focuses entirely on the third of those elements, that is, the prosecution was without reasonable and probable cause, or there was an "absence of reasonable and probable cause" which is the phraseology used in most of the decided cases.
It is the Defendant's case that on the facts which are not in dispute, the Claimant has no realistic prospect of establishing the prosecution was without reasonable and probable cause, and it is therefore entitled to summary judgment on that ground alone.
In February 2005 the Claimant supplied cocaine to Mr Mahmood and was filmed and recorded doing so. Shortly afterwards, he went to a pre-arranged meeting at the Hilton Hotel in Park Lane in possession of more cocaine and a forged passport for the purpose of supplying them to Mr Mahmood, and was then arrested by police in possession of both. Shortly after his arrest, the Claimant pleaded guilty to 3 criminal charges; possession of, and possession with intent to supply class A drugs, and possessing a fraudulent instrument (the forged passport). In March 2005 he was sentenced to 4 1/2 years imprisonment for those offences, a term subsequently reduced by 9 months on appeal. The Defendant's case on this application centres on the simple and undisputed facts of the Claimant's acknowledged criminal conduct which was observed by Mr Mahmood personally.
The Claimant is able to bring these proceedings because of what happened subsequently. Though his subsequent appeals against the default period of a confiscation order and his conviction were dismissed, in 2010 the Criminal Cases Review Commission (the CCRC) referred the Claimant's case to the Crown Court on the ground there may have been material non-disclosure by the prosecution and/or that the prosecution may have been an abuse of the process. Southwark Crown Court then permitted the vacation of the Claimant's guilty pleas, the prosecution offered no evidence and formal verdicts of not guilty were then recorded. The Claimant had by then served his term of imprisonment.
For the purposes of this action it is the Claimant's case that he was 'set up' by a man called Florim Gashi acting on Mr Mahmood's instructions (that is, induced to commit the offences in question, which would otherwise not have been committed), that Mr Mahmood failed to reveal Gashi's involvement to the police, that the Defendant is responsible for causing the Claimant's prosecution which was an abuse of the process for which the Defendant is responsible. It is also said that the 'set up' was engineered for the purpose of enhancing Mr Mahmood's professional reputation with the Defendant; and in all the circumstances the Claimant is entitled to damages for malicious prosecution, including aggravated and exemplary damages, from the Defendant, including for the indignity and humiliation of his arrest and subsequent period in custody and his loss of liberty.
The Defendant's case on the other hand is that the Claimant is a thoroughly dishonest person who was disposed, ready and willing to commit the offences in question, and that Mr Mahmood's conduct in posing as a customer and then passing to the police the information on which the prosecution was based was entirely proper.
It is common ground that there are many disputed issues of fact in the case, that these are unsuitable for summary determination and that for present purposes I must accept the Claimant's account of those events where they are controversial.
The Claimant's pleaded case
In summary, it is said that in late January 2005 or early February 2005 Mr Mahmood asked Florim Gashi, a contact of his who he had used in other sting operations, to find someone who could be implicated in a story he or the News of the World wanted to run about false passports, guns and drugs. Gashi then adopted the identity of a female called Aurora and through an internet chat room used by expatriate Albanians, established contact with the Claimant.
Over the course of 4 or 5 lengthy telephone calls, Gashi then "honey trapped" the Claimant. Using his false female identity, he held out the prospect of romance/sex between them and also the prospect that the Claimant might be able to get employment as a security guard with a rich Arab family at the rate of £8,000 a month. Gashi told the Claimant 'she' had facilitated a meeting between him and a member of this family called Mohammed, and that the Claimant's chances of employment would be enhanced if he could supply the family with cocaine and a false British passport. Mohammed was in fact Mr Mahmood.
The Claimant obtained 3 grams of cocaine from a man called Mehmet, a person he says was previously unknown to him. On 4 February 2005 at a pre-arranged meeting at McDonald's in Liverpool Street the Claimant then supplied those drugs in three individual wraps to Mohammed in return for £210 and further supply was discussed. Mohammed was accompanied by Kishan Athulathnudazi (KA), an employee of the News of the World, who was posing as a member of Mohammed's family.
Gashi, again under the guise of Aurora, then asked the Claimant to obtain a false British passport for Mohammed because, so it was said, Mohammed wanted one for a cousin of his who was in the country illegally. At further meetings with KA, the Claimant was given a passport photograph to use in the false passport and a £200 deposit for it which he then handed over to Mehmet. On 11 February 2005 arrangements were made between the Claimant and Aurora for more cocaine and the false passport to be handed over to Mohammed on 12 February 2005 at the Hilton Hotel in Park Lane.
Mr Mahmood then tipped off the police that an undercover operation had led the newspaper to discover via a confidential source that the Claimant was actively involved in crime in dealing with drugs, and false passports and he had access to firearms. He supplied the police with a photograph of the Claimant and told them analysis had shown the powder already supplied by the Claimant on 4 February was cocaine. He also told them the Claimant would be in possession of more cocaine and a false passport at a meeting arranged to take place at the Hilton Hotel on 12 February 2005.
He did not tell the police however that the confidential source was Gashi, or of the circumstances in which the Claimant came to be in possession of cocaine and a false passport, in particular, of the inducement offered of a job as a security guard, or that the drugs had been a suggested sweetener to enhance the Claimant's chances of getting the job.
On 12 February 2005 the Claimant met Mohammed at the Hilton Hotel. In a car outside the Hilton the Claimant was given 3 grams of cocaine and a false French passport by Mehmet. He went back into the Hilton and was arrested by police in the coffee shop minutes later, in possession of both the cocaine and the false passport. He says that by this point he had seen that the photograph in the passport was of Mohammed, not of another member of his family, and had written "for police" on the envelope with the intention of going to the police.
On 14 February 2005 the Claimant pleaded guilty at Bow Street Magistrates Court to 3 charges: one of supply of a class A drug (the 3 grams of cocaine supplied to Mr Mahmood), one of possession with intent to supply a class A drug, and one of possession of a false instrument (respectively the drugs and the false French passport he had in his possession when arrested). He was remanded in custody and committed to Southwark Crown Court for sentencing.
Further events pre and post conviction
To complete the picture it is necessary to refer to some pre-conviction facts, and the evidence put before the court for this application, including...
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