House of Lords
| DOI | 10.1177/002201839606000104 |
| Published date | 01 February 1996 |
| Date | 01 February 1996 |
HOUSE
OF
LORDS
LIABILITY AS PROSECUTORIN CRIMINAL PROCEEDINGS
Martin vWatson
Where proceedings arebrought inthe form ofa public prosecution,who is
the prosecutor? The euphemisms and abstractions of the
past-the
King or
Queen, the Crown, the prosecutionand so
on-had,
it seems removedthe
necessity forthedetermination of thatquestion,with the result that,when
the courts atlast cameto consider it,inMartin vWatson, they met with the
'curiousfact'thattherewas noauthority to befoundin thedecisions of the
English courts.Thequestionhadtobe decidedasamatter of principle or
as a matter of policy, withsuch assistanceas couldbe obtained from other
common law jurisdictions, in theCommonwealthand inthe USA.The lack
of direct and binding authority is themore remarkablein thelight of the
fact thatthe first questionwhich may face acourt beforewhich anaction
for malicious prosecutionis brought is whether the defendant in those
proceedings was indeed the personwho brought,thatis who was the
prosecutorin,the criminalproceedings.Thedifficulty ofthequestionis
demonstrated by the fact thatin 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 WLR318). Thedefendantinthat
case, itwill be recalled, madeseveral complaintsagainstherneighbourthat
he was guilty of indecent exposure, which complaints led tohis arrest and
prosecutionforan offence contrary tos 4of theVagrancy Act
1824.
When
the case cametotrial,theCrown ProsecutionService offered no evidence.
He sued the complainant for maliciousprosecution,but she replied thatshe
was notthe prosecutor.The majorityof the Court ofAppeal decided that,
as the defendant had notsigned 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 defendantin the civil action who had in fact
broughttheprosecution.The judgments in theCourt of Appealandin the
House of Lords make clear the natureof the questions raised: before a
person can be held tobe responsible for a malicious prosecution,mustit be
shown thathe was theprosecutor inthe legal, formal,technical sense orwill
itsuffice toshowthathewastheprosecutorinthesenseofthedefacto
instigator or initiator of the prosecution?If it be the former,it wouldappear
to be a questionoflaw, in which thedifficulty liesin determiningthe answer
in the absence ofanyauthority.
If
itbe thelatter,the difficulty liesin
determining whatfacts mustbe establishedother thanthatthe complainant
made statementstothepolice orotherperson inauthority.
The opinion of LordKeith opened with thestatementmade in Clerkand
Lindsell onTorts (16th ed,
1989)
para 1042 that'theplaintiff must show
thathe was prosecutedbythe defendant,thatis tosay, thatthe law was set
in motion againsthim on a criminal charge'.
It
is to beobservedthatthe
first part of the statement does not'say'the second part unless one addsto
the second partthewords'bythe defendant'. Thepassage does notanswer
72
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