House of Lords
| Published date | 01 February 1996 |
| DOI | 10.1177/002201839606000104 |
| Date | 01 February 1996 |
| Subject Matter | House of Lords |
HOUSE
OF
LORDS
LIABILITY AS PROSECUTOR IN CRIMINAL PROCEEDINGS
Martin vWatson
Where proceedings are brought in the form of a public prosecution, who is
the prosecutor? The euphemisms and abstractions of the
past-the
King or
Queen, the Crown, the prosecution and so
on-had,
it seems removed the
necessity for the determination of that question, with the result that, when
the courts at last came to consider it, in Martin vWatson, they met with the
'curious fact' that there was no authority to be found in the decisions of the
English courts. The question had to be decided as a matter of principle or
as a matter of policy, with such assistance as could be obtained from other
common law jurisdictions, in the Commonwealth and in the USA. The lack
of direct and binding authority is the more remarkable in the light of the
fact that the first question which may face a court before which an action
for malicious prosecution is brought is whether the defendant in those
proceedings was indeed the person who brought, that is who was the
prosecutor in, the criminal proceedings. The difficulty of the question is
demonstrated by the fact that in Martin vWatson the Court of Appeal was
divided (see
[1994]
QB 425) and the House of Lords accepted the minority
opinion of McCowan LJ (see
[1995]
3 WLR 318). The defendant in that
case, it will be recalled, made several complaints against her neighbour that
he was guilty of indecent exposure, which complaints led to his arrest and
prosecution for an offence contrary to s 4 of the Vagrancy Act
1824.
When
the case came to trial, the Crown Prosecution Service offered no evidence.
He sued the complainant for malicious prosecution, but she replied that she
was not the prosecutor. The majority of the Court of Appeal decided that,
as the defendant had not signed the charge sheet, it could not be said that
the plaintiffhad succeeded in proving the first ingredient of the allegedtort,
namely that it was in fact the defendant in the civil action who had in fact
brought the prosecution. The judgments in the Court of Appeal and in the
House of Lords make clear the nature of the questions raised: before a
person can be held to be responsible for a malicious prosecution, must it be
shown that he was the prosecutor in the legal, formal, technical sense or will
it suffice to show that he was the prosecutor in the sense of the de facto
instigator or initiator of the prosecution? If it be the former, it would appear
to be a question oflaw, in which the difficulty liesin determining the answer
in the absence of any authority.
If
it be the latter, the difficulty lies in
determining what facts must be established other than that the complainant
made statements to the police or other person in authority.
The opinion of Lord Keith opened with the statement made in Clerk and
Lindsell on Torts (16th ed,
1989)
para 1042 that 'the plaintiff must show
that he was prosecuted by the defendant, that is to say, that the law was set
in motion against him on a criminal charge'.
It
is to be observed that the
first part of the statement does not 'say' the second part unless one adds to
the second part the words 'by the defendant'. The passage does not answer
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