Glinski v Mclver
| Jurisdiction | UK Non-devolved |
| Judge | Viscount Simonds,Lord Radcliffe,Lord Denning,Lord Devlin |
| Judgment Date | 22 February 1962 |
| Judgment citation (vLex) | [1962] UKHL J0222-1 |
| Date | 22 February 1962 |
| Court | House of Lords |
[1962] UKHL J0222-1
Viscount Simonds
Lord Reid
Lord Radclifle
Lord Denning
Lord Devlin
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Glinski (A.P.) against McIver, that the Committee had heard Counsel, as well on Tuesday the 28th, Wednesday the 29th and Thursday the 30th, days of November last, as on Monday the 4th, Tuesday the 5th, Wednesday the 6th, Thursday the 7th, Monday the 11th, Tuesday the 12th, Wednesday the 13th, Thursday the 14th and Monday the 18th, days of December last, upon the Petition and Appeal of Christopher Glinski, of 28 Pembridge Gardens, London, W.2, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 5th of February 1960, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of David McIver, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 5th day of February 1960, in part complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, provided that such Order shall not be enforced without a further Order of this House: And it is also further Ordered, That the Costs incurred by the said Appellant in respect of the said Appeal to this House, as from the date of the issue of an amended Civil Aid Certificate, namely the 22d day of March 1961, be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act, 1949, as amended by the Legal Aid Act, 1960, the amount of such Costs to be certified by the Clerk of the Parliaments.
My Lords,
On the 31st January, 1956, the Appellant issued a writ against the Respondent, a detective sergeant stationed at New Scotland Yard, claiming damages for false imprisonment and malicious prosecution. By his Statement of Claim as amended he alleged that he had been tried and acquitted before a jury at the Central Criminal Court upon charges of conspiracy and of obtaining goods by false pretences and that the Respondent was at all material times responsible for laying the information and the complaint and was in charge of the case. This is not denied. He also alleged that on the 13th September, 1955, at 9.45 a.m. the Respondent wrongfully arrested him and falsely imprisoned him and took him to Marylebone Lane Police Station where he was detained, that he was thereafter unlawfully put up for identification and detained in a detention cell until about 5 p.m. when he was released. Upon this issue the Appellant recovered £100 damages, and its only relevance is the bearing, if any, which it has on the further claim for malicious prosecution. This claim as amended was that on the 28th September, 1955, at Marylebone Magistrates' Court before a justice of the peace the Respondent laid an information and maliciously and without reasonable and probable cause preferred charges of conspiracy to defraud and obtaining goods by false pretences against him thereby causing him to be committed for trial and causing him to be imprisoned thereon and thereafter prosecuted him upon such charges at the Central Criminal Court where he was acquitted upon the said charges at the direction of the learned Judge at the trial.
The action was first heard before Mr. Justice Pilcher and a jury on divers days in the month of October, 1958, but owing to the illness of that learned Judge the jury were discharged from giving a verdict. It was further heard before Mr. Justice Cassels and a jury for many days in the same month and after much discussion the following questions were put to the jury:
(1) Has it been proved that the Respondent in starting the prosecution of the Appellant for conspiracy to defraud was actuated by malice, that is, any motive or motives other than a desire to bring the Appellant to justice? If Yes, what damages?
To this the jury answered: "Yes. £2,500 damages".
(2) Did the Respondent honestly believe on September 29, 1955, that the Appellant was guilty of the offence of conspiracy to defraud?
To this the jury answered: "No".
A third question was asked and answered favourably to the Respondent. I do not think it desirable, at any rate at this stage, to confuse the broad issues in the case by referring to it.
A further question related to the admittedly false imprisonment on the 13th September for which the Appellant was awarded £100 damages.
The significance of the date September 29th, 1955, is that both parties agreed that it is at that date that the belief of the Respondent as to what I will without prejudice call the guilt of the Appellant must be ascertained. That does not mean that subsequent events may not throw light upon what was then his belief.
The jury having thus answered the questions put to them, the learned Judge said: "As it is for me to decide if there was reasonable and probable cause, I hold that there was no reasonable and probable cause for the prosecution", and gave judgment for the Appellant accordingly.
From that judgment, so far as it related to the sum of £2,500, the Respondent appealed to the Court of Appeal and, after a hearing which lasted fourteen days, that Court unanimously allowed the appeal. The Appellant now seeks to have the judgment restored and in the course of a hearing which has again lasted many days there can be few of the complex facts of which this story is made up and few of the great number of authorities on the law of malicious prosecution which have not more than once engaged your Lordships' attention.
Of that I would make no complaint. For, as was forcibly pointed out, in such cases as these the liberty of the subject is involved on the one side and on the other the risk that the citizen in the performance of his duty may be embarrassed if a jury too readily gives a verdict in favour of a plaintiff who has been prosecuted and acquitted. For that reason it has throughout the centuries been the law that the question whether there was reasonable and probable cause for a prosecution has been left in the hands of the judge. And still today it appears to be the unanimous opinion of those who have greater experience of such trials than I that this need for the judge to hold the reins is as great as ever, see for example, Leibo v. D. Buckman Ltd. and Another [1952] 2 A.E.R. 1057.
My Lords, before I come to the facts, which I will state as briefly as possible since they are carefully and exhaustively stated in the judgment of Lord Justice Morris in the Court of Appeal, I will make some general observations on the law which will, I hope, be found pertinent to the present case.
Of the four essentials to a successful action for malicious prosecution the first two, namely, that the appellant was prosecuted by the respondent and was acquitted, are not in debate. It is upon the third and fourth essentials that controversy has arisen. The third is that the prosecution was without reasonable and probable cause and the fourth that it was malicious. I need not remind your Lordships that it is for the plaintiff in such an action to prove these facts.
My Lords, such difficulty as there is in the correct statement and application of the law as to want of reasonable and probable cause arises from the fact that, while it is for the judge to determine (whether as fact or law) whether there was such want, it is for the jury to determine any disputed facts which are relevant to that determination, and his difficulty is reflected in the controversy in this case before your Lordships and in the Court of Appeal whether the second question was correctly left to the jury: "Did the Respondent honestly believe", and so on. It was, I think, challenged on two grounds, the first being that though the belief of the prosecutor in the guilt of the accused may be relevant to malice it is not relevant to the question of reasonable and probable cause as to which the test is purely objective, the jury finding the facts and the judge coming to his conclusion upon them. I think that there is here a confusion of thought. For if the judge is to decide upon facts found by the jury, how can he ignore what may be the all-important fact that the prosecutor did not himself believe in the facts which if they were believed might afford a reasonable and probable cause? The judge, equipped with the information which at the relevant date the prosecutor had, has to decide, adopting the standard of the reasonable man, whether there is reasonable and probable cause. How can that information include something which the prosecutor knows to be false or at least knows not to be true? But then it is said that at least the form of the question is wrong and that the jury should be asked not whether the prosecutor believed in the guilt of the accused but whether he believed in the existence of the facts which, if they existed, would afford reasonable and probable cause for thinking him guilty. This contention has some merit. But there are, I think, two serious objections to it. The first is that as a practical matter it might be extremely difficult...
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