Thomas Roe KC Instructed by Charles Russell Speechlys LLP (London) for the Respondent
LORD BURROWS (with whom Lord Sales, Lord Hamblen, Lord Leggatt and Lord Stephens agree):
1. Introduction
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, 23rd edition) para 15-13; Winfield and Jolowicz on Tort (2020, 20th 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.
2. Central facts that are not in dispute
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.
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