Hunt v AB

JurisdictionEngland & Wales
JudgeLord Justice Sedley,Lord Justice Wall,Lord Justice Moore-Bick
Judgment Date22 October 2009
Neutral Citation[2009] EWCA Civ 1092
Docket NumberCase No: A2/2008/2960
CourtCourt of Appeal (Civil Division)
Date22 October 2009

[2009] EWCA Civ 1092

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MR JUSTICE BLAKE

HQ06X03909

Before: Lord Justice Sedley

Lord Justice Wall and

Lord Justice Moore-Bick

Case No: A2/2008/2960

Between
Anthony Hunt
Claimant/Appellant
AB
Defendant/Respondent

Mr Mark Warby QC and Mr Stephen Ferguson (instructed by Messrs Coyle White Devine) for the Appellant

Mr Roger ter Haar QC, Mr Anthony Metzer and Ms Sarah Harris (instructed by Messrs Lovells) for the Respondent

Hearing dates: 15 and 17 July 2009

Lord Justice Sedley

Lord Justice Sedley:

The appeal in summary

1

AB, the respondent, is a married woman who allowed or invited the appellant, a work colleague, into her home for a cup of tea. An act of sexual intercourse took place which he has always asserted was consensual and she has always asserted was not. She did not go to the police, but some years later a colleague in whom she had confided did so. The police approached her and persuaded her to give evidence. The appellant was convicted of rape, but after he had served some two years in prison the conviction was overset. He then issued the present proceedings against AB for malicious prosecution.

2

Blake J, on the trial without a jury of a preliminary issue, held that AB was not the prosecutor and therefore not able to be sued for malicious prosecution. Although, in the view of this court, he was undoubtedly right so to hold, the appeal touches on at least one question of potentially wide importance: if, like most people who believe themselves to have witnessed or been the victim of a serious crime, AB had gone immediately to the police, would she now be open to a civil action as the prosecutor if the outcome of the prosecution had been an acquittal?

3

The factual answer to this appeal, however, is that the prosecutor manifestly was not AB, who had neither approached the police nor sought a prosecution of the appellant. Her role, albeit as the key witness, was limited to agreeing to give evidence and to doing so. The answer of principle is that, even if AB had gone straight to the police and made it clear that she wanted Mr Hunt prosecuted, the independent intervention first of the police and then of the CPS would, in the absence of proof that the prosecution was in reality her doing and not theirs, have made the latter the prosecutor.

The facts

4

There has never been any dispute that on 15 July 1995 the respondent, a special constable, allowed the appellant, a senior traffic warden, into her home or that sexual intercourse took place there. Nor is there any need to detail each party's account of it, save to say that AB's account is consistent only with rape and the appellant's consistent only with consent. I will return later to the implications of this polarity.

5

AB made no complaint to the police. The reason she subsequently gave was that she did not know whether she would be believed and that she was worried about the impact that the episode would have on her marriage. But evidence was given at the trial that within half an hour she had telephoned her supervisor to say that she had been raped by a traffic warden. She believed that she had named him, but the supervisor did not recall this. In the course of that summer she gave her account to two other work colleagues, and in May the following year to another traffic warden, Ms Whelan.

6

It was not until March 2002 that Ms Whelan, in circumstances which are not material here but might have been material had the full action gone to trial, related AB's account to a senior officer, who immediately reported it to the police. A criminal investigation was initiated under the supervision of DCI Scott who, however, did not approach AB directly until mid-April.

7

AB, who until then was not aware that Ms Whelan had passed on the allegation, declined to make a statement or otherwise assist in a prosecution. It was under the persistent pressure of DCI Scott that she finally agreed to make a statement and give evidence. The appellant was arrested on 14 May 2002. Interviewed under caution, he gave the account of consensual intercourse which he has given consistently ever since.

8

DCI Scott referred the papers to the Crown Prosecution Service for a decision as to whether the criteria for a prosecution were met. She included a report to the effect that AB was in her judgment a credible witness whose evidence was supported by such investigations as had so far been made and who had no apparent motive for making an untruthful accusation.

9

The head of the local criminal justice unit of the CPS on 12 June 2002 sent a response to the Deputy Chief Constable which, after summarising the factual allegations and noting the appellant's answer, continued:

…..

Having reviewed the evidence supplied to me it is my view that there is sufficient evidence to provide a realistic [prospect] of conviction in respect of an allegation of rape. In reaching this decision I have considered the following:—

(1) [AB] made a complaint within 30 minutes of the incident to Barry Young her sub-divisional officer. Mr Young recalls the conversation and states that [AB] appeared to be upset and hesitant and told him in a disjointed way that a traffic warden had raped her. Mr Young's account of the conversation is consistent with [AB's] version of it.

(2) [AB] appeared at work 2 days after the attack in a distressed manner. When pressed by Fiona Medway a work colleague and close friend, [AB] burst into tears and told her that she had been raped by a traffic warden. Again Mrs Medway's statement is consistent with the statement of [AB].

(3) [AB] subsequently confided in a serving police officer PC Whitfield during the summer of 1996 and subsequently to Marie-Claire Whelan a traffic warden and work colleague of Mr Hunt. Both PC Whitfield (now retired) and Mrs Whelan have made statements that are consistent with the statement of [AB].

(4) There is no suggestion that [AB] and Mr Hunt had been having a sexual relationship or that they knew each other on a social basis.

(5) A number of witnesses have described how after the alleged incident [AB's] personality changed. In her statement [AB] states that her work declined and as a result of this her employer offered her counselling for stress which she declined. It would be helpful if evidence could be obtained from [AB's] manager confirming this.

(6) [AB] is described by a number of witnesses as being very reliable and honest. She has confirmed that although initially she felt unable to proceed with the matter she now feels strong enough to give evidence in court. I have spoken to the senior investigating officer Detective Inspector Scott and she has confirmed to me that she considers that [AB] would make a very good witness.

(7) Detective Inspector Scott has confirmed that there is nothing in [AB's] background that is likely to weaken the prosecution case.

In view of the serious nature of the allegation a prosecution is clearly in the public interest.

10

Accordingly the appellant was charged with rape. He was convicted by a majority verdict and sentenced on 18 December 2003 to 4 years' imprisonment.

11

While in her third witness statement AB had finally expressed herself “happy to attend court”, at trial the cross-examination of her included the following:

Q. You never wanted this case to be brought, did you?

A. No.

Q. You made it very clear in your statement of 22 April of last year that you would not support a police prosecution and you would not attend court?

A. That's right.

Q. And you would never yourself have made a complaint, would you?

A. No.

Q. It was Traffic Warden Whelan betraying your confidence?

A. That's correct.

Q. That resulted in the police coming round and taking a statement from you?

A. That's correct.

Q. And even at that point you did not want anything to do with a prosecution?

A. No, I didn't.

Q. Did you then after 22 April of your own free will and volition contact the police?

A. No.

Q. So the police came back to you?

A. Yes.

12

On 6 December 2005 the appellant's case came before the Criminal Division of this court (Richards LJ, McCombe J and Judge Stewart QC). The appeal was allowed, in part because of inadequacies in the trial judge's direction to the jury and his approach to the admission of evidence, and in part because fresh evidence was tendered which was capable of having made a difference to the verdict. The latter consisted of statements from two witnesses who recounted having seen AB, apparently relaxed, in the company of the appellant after the date of the material incident. In the nature of things, neither statement had been tested; nor was it to be, because the court declined, in view of the time the appellant had already served in prison, to order a retrial.

Malicious prosecution

13

In these circumstances the appellant is entitled not only to the benefit of the presumption of innocence but to the status of a person accused and acquitted. It is the latter that gives him the necessary standing to sue for malicious prosecution. The other ingredients of the tort are, as counsel agree, that the prosecution must have caused him damage (as it plainly did), that the civil defendant must have instituted or continued the prosecution, that she must be proved to have done this without reasonable and probable cause, and that she must be proved to have done it maliciously.

14

The final step – from want of good cause to malice – is not simply an exercise in recycling the claimant's allegation that he was innocent. A witness who has convinced himself of...

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