Kevin Stuart v Attorney General of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Burrows,Lord Sales,Lord Hamblen,Lord Leggatt,Lord Stephens |
| Judgment Date | 15 December 2022 |
| Neutral Citation | [2022] UKPC 53 |
| Docket Number | Privy Council Appeal No 0067 of 2017 |
| Court | Privy Council |
[2022] UKPC 53
Lord Sales
Lord Hamblen
Lord Leggatt
Lord Burrows
Lord Stephens
Privy Council Appeal No 0067 of 2017
Privy Council
Michaelmas Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant Ernest H Koylass SC
Kevin Ratiram
Debbie Roopchand
(Instructed by Duke Street Chambers (San Fernando))
Respondent
Thomas Roe KC
(Instructed by Charles Russell Speechlys LLP (London))
Heard on 15 November 2022
Lord Burrows ( with whom Lord Sales, Lord Hamblen, Lord Leggatt and Lord Stephens agree):
The central question on this appeal is whether the Court of Appeal was entitled to overturn certain factual findings of the trial judge in relation to the tort of malicious prosecution. The tort of malicious prosecution has five elements all of which must be proved on the balance of probabilities by a claimant: (1) that the defendant prosecuted the claimant (whether by criminal or civil proceedings); (2) that the prosecution ended in the claimant's favour; (3) that the prosecution lacked reasonable and probable cause; (4) that the defendant acted maliciously; and (5) that the claimant suffered damage. See, eg, Clerk and Lindsell on Torts (2020, 23 rd edition) para 15–13; Winfield and Jolowicz on Tort (2020, 20 th edition) para 20–006. This appeal is concerned with factual findings made by Charles J, but overturned by the Court of Appeal, in respect of the third and fourth of those elements.
Charles J (CV2012-00113, 30 June 2015) held that the defendant, the Attorney General of Trinidad and Tobago, was vicariously liable (under the State Liability and Proceedings Act) for the malicious prosecution of the claimant, Kevin Stuart, by a police officer, PC Nicholas Phillips. She found, on the facts, that PC Phillips had acted maliciously and that was closely linked to her finding that, in respect of the third element of the tort, PC Phillips did not have the relevant honest belief. The Court of Appeal (Bereaux JA giving the judgment, with whom Moosai and Jones JJA agreed: Civil Appeal No P162 of 2015, 25 July 2017) overturned her findings of fact on lack of honest belief and malice and decided, as a consequence, that the tort of malicious prosecution was not made out. The claimant now appeals to the Board.
It is important to note at the outset that it was not suggested by the Court of Appeal, and has not been suggested by either party on this appeal, that Charles J misdirected herself on the law in respect of malicious prosecution. The sole dispute is whether the Court of Appeal was correct to have overturned Charles J's findings of fact on lack of honest belief and malice.
The Anti-Gang Act (No 10 of 2011) came into force in Trinidad and Tobago on 15 August 2011. Less than a week later, on 21 August 2011, a state of emergency was declared in Trinidad and Tobago.
On 27 August 2011, the claimant was arrested at his home in Marabella by a group of police officers, including PC Phillips. The arrest was in purported exercise of the powers conferred on a police officer, by section 12(1) of the Anti-Gang Act, to arrest a person whom the police officer reasonably believed to be a gang member or to have committed an offence under that Act.
The claimant was taken in custody to Marabella Police Station. On 28 August 2011, he was interviewed as to his alleged involvement in gang-related activities, which the claimant denied.
On 29 August 2011, PC Phillips charged the claimant with the offence of being a gang member (being such a member on Saturday 27 August 2011, at Union Park East, Marabella) contrary to section 5(1)(a) of the Anti-Gang Act.
Later on the same day (29 August 2011), the claimant was brought before a magistrate. On the charge being read to him, he pleaded “Not Guilty”. He was denied bail pursuant to the provisions of the Bail (Amendment) Act 2011 (under which bail was not to be granted to a person charged with an offence under the Anti-Gang Act) and was remanded in custody until 29 September 2011.
On 28 September 2011, the Director of Public Prosecutions (“DPP”) filed a notice discontinuing the proceedings against the claimant. On 29 September 2011, the claimant appeared before the Magistrates' Court. The DPP, for the prosecution, informed the court of his filing of a notice of discontinuance expressed to be on the basis of there being insufficient evidence to support the charge. The magistrate thereupon formally discharged the claimant who was released from custody later that day.
On 11 January 2012, the claimant commenced an action in the High Court for false imprisonment, including wrongful arrest, and malicious prosecution.
Charles J held that the defendant was liable for false imprisonment, including wrongful arrest, and malicious prosecution. The Board is not concerned with the false imprisonment because Charles J's decision on that tort (covering the period between the arrest and being charged and brought before the magistrate) was upheld by the Court of Appeal and there has been no cross-appeal by the defendant against that ruling. Charles J awarded for both torts a single sum comprising compensatory general damages (including aggravated damages) of $300,000 plus exemplary damages of $50,000 (all the references to currency in this judgment are to the Trinidad and Tobago dollar). Additionally, she awarded $1,800 as special damages for loss of earnings (but it was accepted by the claimant in the Court of Appeal that no special damages should have been awarded).
As regards the tort of malicious prosecution, the two elements in dispute before Charles J were whether the claimant had proved that PC Phillips lacked reasonable and probable cause to charge the claimant of being a member of a gang, contrary to section 5(1)(a) of the Anti-Gang Act; and whether the claimant had proved that PC Phillips had acted maliciously. Charles J decided that both those elements had been proved.
Taking first the “lack of reasonable and probable cause” element, there is an objective aspect to this (whether PC Phillips had reasonable grounds for bringing the case to court) and a subjective aspect (whether PC Phillips had the honest belief that this was a proper case to bring to court). The claimant would succeed on this element if he could prove that PC Phillips did not have the required reasonable grounds or lacked the required honest belief. It would appear that the objective aspect of this was not seriously in dispute and hence was not focused on, as a separate matter, by Charles J. After all, as Charles J pointed out at para 40:
‘… when Assistant Superintendent of Police Mohammed finally carried out his duty and reviewed the file submitted by Police Constable Phillips, he immediately realised that there was not sufficient evidence to charge the Claimant…”
As has already been mentioned, it is also an agreed fact that the DPP dropped the case before the magistrate, at the first substantive hearing, for insufficiency of evidence. In the light of those facts, it was a straightforward conclusion that PC Phillips did not have reasonable grounds for the charge.
But central to this appeal is that, irrespective of that objective aspect, Charles J found – and this was a factual finding – that PC Phillips lacked the required honest belief. In deciding this, Charles J had the benefit of the live evidence of PC Phillips as well as his witness statement. She found him a very unsatisfactory witness. In important respects, his live evidence was inconsistent with his witness statement. In particular, his live evidence contained new important details that had not been included in his statement. These included that he had seen the claimant selling drugs between February and August 2011 albeit that there was no available record of this (eg in the station diary) and he had never sought a warrant for the claimant's arrest; that he and other police officers had attempted to arrest the claimant on 5–10 previous occasions for selling drugs but that the claimant had evaded arrest by running away; that search warrants were executed at the premises of the claimant, albeit that no drugs were found, but he could not account for there being no record of those search warrants; that he had interviewed the claimant's wife, who he alleged was a gang member, on 29 August 2011, but he could not remember her name and there was no available record of this interview. He also claimed to have noted down in his personal diary important details of some of the above events but he could not now locate that personal diary. His evidence was also inconsistent with the evidence of Assistant Superintendent of Police Mohammed because PC Phillips said that he had submitted a written report or file to that officer before proceeding to charge the claimant: but Assistant Superintendent Mohammad testified that he had not received anything written from PC Phillips before the claimant was charged.
Charles J concluded that PC Phillips' testimony “was riddled with so many inconsistencies that I do not consider him to be either creditworthy or reliable” (para 45). After examining the defects in his evidence, she went on to say the following in paras 47–51:
“[47] The inconsistencies in Police Constable Phillips' evidence all relate to the important issue of whether there was reasonable and probable cause to charge the Claimant and whether Police Constable Phillips could have had an honest belief in the guilt of the Claimant in respect of the offence for which he was charged. The fact that this officer throughout his testimony attempted to buttress, strengthen and fabricate new evidence against the Claimant is a strong basis for concluding that...
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