Tempest v Snowden
| Jurisdiction | England & Wales |
| Date | 1951 |
| Court | Court of Appeal |
Malicious prosecution - Questions for jury - “Did the defendant honestly believe that there were reasonable grounds for instituting the prosecution” - Whether proper question for jury.
In an action brought before Cassels J. sitting with a jury for malicious prosecution, the judge left to the jury questions which with the answers were: (1) Did the defendant honestly believe that there were reasonable grounds for instituting the prosecution? — No. (2) Has the plaintiff satisfied you that the defendant was actuated by malice? — Yes. The jury accordingly fixed the general damages. Thereupon Cassels J. held that there was no reasonable or probable cause for the prosecution and made an order for damages. On appeal it was argued for the defendant that the first question was improper as leading the jury to consider whether there were reasonable grounds for the prosecution, a question for the judge and not the jury.
Held, that, having regard to Lord Atkin's speech in Herniman v. Smith [
Per Evershed M.R.: Where the question of the existence or absence of honest belief is relevant, the form of question is better put as “Did the defendant honestly believe in the plaintiff's guilt” or Did the defendant honestly believe in the charges he had preferred” with all reference to “reasonable grounds” omitted.
APPEAL from Cassels J. sitting with a jury.
The defendant was the chairman of directors of the Radio Research Development Laboratories Ld. In September, 1949, the company was manufacturing burglar alarms and other electrical equipment and employed the plaintiff as a salesman at a salary of £6 a week and £2 a week for travelling expenses, the plaintiff claiming to have a car, which was, however, out of use. At first the plaintiff was employed in trying to sell portable amplifiers. He had a sample amplifier and microphone and later placed two amplifiers with one Craig to try to sell. In October the plaintiff reported to the defendant that the Co-operative Wholesale Society, Manchester, was interested in burglar alarms. The defendant then drove the plaintiff to the society with certain burglar apparatus. He meant to go in with the plaintiff but suggested that the plaintiff avoided him, and he returned to the car. The plaintiff deposited the apparatus in the stores by leave of one Booth, with the intention, he said, of leaving the apparatus to be used for demonstrations. The defendant said he was shortly after told by the plaintiff that all the departments of the society were interested and the company prepared an estimate of £704, which the plaintiff took for delivery.
At the beginning of January, 1950, it was found that Craig had done nothing with the amplifiers; the defendant told the plaintiff to try to sell them and he took them to his home at Halifax. A little later the plaintiff ceased to be employed at a salary, though there was a dispute whether or not he was kept on on a commission basis. Soon after the plaintiff was taken ill and had to be in bed till the end of February, and afterwards in bed for part of the day until April. Meanwhile the defendant was concerned at hearing nothing from the society and ascertained that no department knew anything about the burglar alarms nor where any burglar alarm apparatus was. He then tried to find out from the plaintiff by telephone where the goods entrusted to him were, but without result.
In these circumstances the defendant laid an information against the plaintiff, with the result that two summonses were issued against him at the beginning of May, of which only that charging the plaintiff with theft was in the end proceeded with. When served, the plaintiff went to the society and found the burglar apparatus where he had deposited it and got it sent to the company, where it was received on May 10. The summons was, however, proceeded with, and after he had produced to the court the three amplifiers and the microphone the summons was dismissed.
The plaintiff then brought proceedings against the defendant for damages for malicious prosecution. Cassels J. left to the jury questions which, with the answers, were as follows: (1) Did the defendant honestly believe that there were reasonable grounds for instituting the prosecution? No. (2) Has the plaintiff satisfied you that the defendant was actuated by malice? Yes. (3) Damages, if any. £200 generally. Cassels J. then held that there was no reasonable or probable cause for the prosecution and gave judgment for the sum of £200 and £5 5s. solicitor's costs.
The defendant appealed.
Granville Sharp K.C. and J. S. Snowden for the defendant. Cassels J. ought not to have left to the jury question 1, that is: “Did the defendant honestly believe that there were reasonable grounds for instituting the prosecution?” In doing so he was in fact leaving to the jury one of his own functions, which is to decide whether there was reasonable and probable cause for the prosecution. If the jury determined question 1 it might well treat the vital part of the question as whether there were reasonable grounds for instituting the prosecution and then go on to think that, if not, the defendant could not have honestly believed that there were. He referred to Herniman v. Smith, F1 where Lord Atkin laid down that the question “was there reasonable and probable cause for the prosecution” was a question for the judge, as opposed to the question, “Did the defendant honestly believe in the plaintiff's guilt,” which was for the jury but which must be contrasted with question 1, which ought never to have been put to the jury. There is no lack here of reason for honest belief. Question 1 has mixed two questions, one for the jury and one for the judge.
[EVERSHED M.R. The judge in summing up had made it clear that he did not believe that there was malicious prosecution.]
When once the jury had found that there was an absence of reasonable grounds for an honest belief by the defendant in the plaintiff's guilt, that was strong evidence of malice and the jury was left to hold that there was malicious prosecution.
Gilbert Beyfus K.C. and D. S. Forrester-Paton for the plaintiff. It had been left to the defendant's counsel in the court below to say what questions should be left to the jury and, having accepted the questions suggested, they cannot come and complain at one of the questions being left to the jury. From beginning to end the judge asked for suggestions, and a question was omitted when it was objected to by Mr. Forrester-Paton. The judge is entitled to get as much assistance from the jury as he can to enable him to decide whether there was reasonable and probable cause for the prosecution. Without honest belief in the plaintiff's guilt there could not be...
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Keith Brown v Constable Neville Heaven and Others
...whether the defendant did himself honestly believe that the plaintiff was guilty. In relation to the subjective test, Lord Denning in Tempest v Snowden, ([1951] 2 The Times Law Report , page 1201), stated that the issue of the honest belief in the accused's guilt should not be regarded as a......
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