Trevor Howarth v The Chief Constable of Gwent Constabulary and Another
| Jurisdiction | England & Wales |
| Judge | The background to the claim,THE HONOURABLE MR JUSTICE EADY,Mr Justice Eady |
| Judgment Date | 01 November 2011 |
| Neutral Citation | [2011] EWHC 2836 (QB) |
| Court | Queen's Bench Division |
| Date | 01 November 2011 |
| Docket Number | Case No: HQ11X01438 |
[2011] EWHC 2836 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Eady
Case No: HQ11X01438
Heather Williams QC andNick Stanage (instructed by Squire, Sanders & Dempsey (UK) LLP) for the Claimant
Jason Beer QC and Andrew Waters (instructed by Dolmans Solicitors) for the Defendants
Approved Judgment
Hearing dates: 4–17 October 2011
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Eady :
The Claimant in these proceedings, Mr Trevor Howarth, seeks damages against the Chief Constable of Gwent Constabulary and/or against the Gwent Police Authority for alleged malicious prosecution and misfeasance in public office. Mr Howarth had been charged on 17 May 2007 with perverting the course of justice, an offence in respect of which he was acquitted on 19 March 2008 following trial at the Bristol Crown Court. The allegations he makes are principally against Mr Michael Hayward, who was a detective constable with the Financial Crimes Unit of the Gwent Police until 1 September 2006, when he ceased to be a police officer but was still employed in the same department by the Gwent Police Authority. Accordingly, in respect of any wrongdoing the Chief Constable would be liable in accordance with s.88(1) of the Police Act 1996 until the changeover date. Any misconduct thereafter would be attributable to the Gwent Police Authority on the basis of vicarious liability. The other police officer primarily involved in the relevant investigations was Detective Sergeant Lewis, who remained in the police force until 2 September 2011, when he retired.
It is right to record that Mr Howarth was, and following his trial remains, a man of good character. Although without any legal qualifications, he had been employed as practice manager with a small Manchester firm of solicitors, Freeman & Co (of which the principal was Mr Nicholas Freeman), from January 1999 until May 2008 (i.e. about two months after his acquittal). The prosecution of Mr Howarth related to work undertaken in the course of his employment in respect of a client, Mr Jeremy Lefton, who had faced prosecution for speeding and for failing to furnish requisite information, as to the identity of the person driving a motor vehicle at a certain time, contrary to s.172(3) of the Road Traffic Act 1988. In the event, he faced only the latter charge, of which he was acquitted at the Abergavenny Magistrates' Court on 19 April 2006. He was represented by counsel instructed by Freeman & Co, Mr Robert McMaster (against whom no criticism can possibly be levelled). Mr Lefton was acquitted following what is now accepted as false evidence to the effect that he had no knowledge of a Notice of Intended Prosecution ("NIP") served at his parents' address and dated 2 June 2005. He was supported by evidence from his mother, Mrs Janet Lefton, who also confirmed on oath that the NIP had not been received. Later, the mother and son were both charged with perjury and perverting the course of justice in respect of their false evidence. His father, Mr Harold Lefton, was also charged with perverting the course of justice. All members of the family pleaded guilty at the Newport Crown Court and were each sentenced, on 12 April 2007, to three months imprisonment.
On that occasion, the police provided the sentencing Judge with a letter (of the kind often referred to as a "text"), which was signed by Detective Chief Inspector Dodd and referred to the Leftons as having "all admitted their wrongdoing in full". It went on to state that they had provided written witness statements and indicated their willingness to give evidence against others who were to be "prosecuted in this investigation". This was obviously relied on in the hope that their sentences would be correspondingly reduced.
It was just over a month later, as I have indicated, that Mr Howarth was himself charged with perverting the course of justice in relation to his conduct of Mr Jeremy Lefton's case and, in particular, advice which he was alleged to have given. The decision to charge was taken by Mr Grenville Barker of the CPS, who gave evidence in the course of the trial before me. That decision was the culmination of prolonged and careful consideration not only by him but also by leading and junior counsel. Leading counsel drafted the charge and settled the indictment. They too gave evidence.
Thereafter, Mr Howarth suffered considerable stress and was under medical care and treatment. He took sick leave until January 2008, being effectively incapable of carrying out his normal duties. He later found other employment.
Matters had come to light following the original acquittal of Mr Jeremy Lefton before the Abergavenny magistrates in April 200An application had been made for costs and, for that purpose, some of the documents contained in his solicitor's file were submitted to the Magistrates' Court for assessment. The suspicions of court officials were aroused when they were inspecting these documents and discovered material which appeared flatly to contradict the defence put forward by Mr Lefton and his mother. There was correspondence passing between Freeman & Co and the Leftons which expressly referred to the NIP. There was also an attendance note, dated 10 June 2005, in which Mr Nicholas Freeman himself made reference to the NIP and suggested that the Leftons had received it and informed the solicitors. It will be necessary to go into these matters more fully in due course, when considering the evidence, but for the moment all I need say is that Mr Adrian Bates, the official who had examined the file at the Magistrates' Court, submitted it in August 2006 to the police. He had a copy of the NIP which had been produced by the prosecution at Jeremy Lefton's trial. He confirmed in a statement dated 21 August of that year that Jeremy Lefton and his mother had both given evidence to the effect that the original NIP had not been received. This began the train of enquiries which led to the prosecutions to which I have referred.
The legal principles
Before turning to the evidence in any detail, it is necessary to have in mind throughout the legal principles governing the causes of action relied upon and, in particular, the hurdles which a claimant has to overcome in establishing the tort of malicious prosecution. He must prove inter alia that the relevant prosecutor had no "reasonable and probable cause" for the prosecution in question. The difficulties confronting such a claimant are underlined in a number of well known authorities. In the present case, the prosecution was based partly upon documents found in the files of Freeman & Co which called for explanation and partly also upon evidence from the Leftons. Furthermore, it is clear that, throughout, the police sought guidance on the approach to be adopted, and upon the implications of the evidence, from the Crown Prosecution Service and in due course also from counsel. It follows that Mr Howarth will need to establish, on a balance of probabilities, that despite this advice the relevant police officer(s) did not believe in the prosecution brought against him or that for other reasons the evidence relied upon did not give rise to "reasonable and probable cause".
The leading authority of Martin v Watson [1996] AC 74 shows that a claimant founding himself upon malicious prosecution must establish four elements:
i) the proceedings must have been instituted or continued by the relevant defendant;
ii) the defendant must have acted without "reasonable and probable cause";
iii) he must have acted maliciously;
iv) the proceedings must have been unsuccessful, in the sense that they terminated in favour of the claimant.
The only elements in issue in this case are the second and third of those; that is to say, "reasonable and probable cause" and malice. It is not disputed that the Claimant would be able to establish damage. It is acknowledged that the charge brought against him was defamatory, put him at risk of imprisonment and led in due course to financial loss.
It is also accepted that it was one of the Gwent police officers who charged Mr Howarth with perverting the course of justice and that, on that basis, the Defendants are properly sued–notwithstanding the significant role played throughout by independent legal advisers: see e.g. Alford v Chief Constable of Cambridgeshire [2009] EWCA Civ 100 at [42].
It is well established that the fundamental element is the absence of "reasonable and probable cause". It will not suffice to prove malice alone. My attention was drawn to the words of Tindal CJ in Williams v Taylor (1829) 6 Bing 183, at 186:
"Malice alone is not sufficient, because a person actuated by the plainest malice may none the less have a justifiable reason for prosecution."
Albeit somewhat archaic, the phrase "reasonable and probable cause" is well understood. Reference is often made to the judgment of Hawkins J in Hicks v Faulkner (1878) 8 QBD 167, at 171, where he gave the following definition:
"…an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed."
That exposition of the law was approved in Herniman v Smith [1938] AC 305 by Lord...
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