Establishing malicious prosecution is both difficult and complicated and it is a fact that although thousands of people are acquitted of offences of which they were accused every year, only a relatively small proportion of those people will have a viable claim for malicious prosecution.
Unlike claims for false imprisonment and assault/battery, the burden of proof lies upon the Claimant, i.e. it is for the Claimant to prove by the evidence available that the criminal proceedings brought against him were motivated by malice.
Whilst it should be easy enough to establish that the Claimant was prosecuted, that the prosecution concluded in his favour and that the prosecution resulted in damage to his reputation or freedom, the Claimant must also establish that;
- reasonable and probable cause were absent in the bringing of the prosecution; and
- the police acted maliciously.
What does “Lack of reasonable and probable cause” mean?
This means a lack of either –
- Actual belief in the guilt of the Claimant (a subjective evaluation; in other words, the Police knew the Claimant wasn’t guilty); or
- Reasonable belief in the guilt of the Claimant (an objective evaluation; in other words, the Police should have known that the Claimant wasn’t guilty).
What does “Acted with malice” mean?
This means that the Claimant must show that the police were motivated by something other than a desire to bring the Claimant to justice, for example to conceal their own misconduct towards the Claimant.
Furthermore, Defendants are likely to robustly defend claims for malicious prosecution because of the political and reputational fall-out of conceding the action. The police are a public body and as such are rightly concerned not to be labelled “malicious”.
This discussion brings me onto a case that is presently ongoing.
On the day in question, my client Salman Khan attended at his local Police Station in order to collect items of property which had been taken from him following his arrest several months before. Fortunately, what happened next was caught on CCTV.
Mr Khan proceeded in a normal manner to the enquiry desk where he spoke with an enquiry assistant who I’ll call Andrea, who advised that she would retrieve his items from the property store.
Thereafter Mr Khan waited calmly for the return of his property, spending the majority of the period outside the police station.
Upon her return to the enquiry desk, Andrea beckoned Mr Khan towards a secure corridor which separates the enquiry area of the police station from the Custody Suite.
In the corridor, Andrea provided Mr Khan with some property (in bags) and thereafter requested that he sign what was purported to be a property sheet.
Mr Khan noted that the document being offered to him was not the original property sheet, but a copy. Mr Khan requested production of the original property sheet (which he had seen previously). Mr Khan was particularly concerned because a substantial amount of money had been taken from him by the Police at the time of his arrest and not yet returned.
Andrea continued to insist that the document in question was the property sheet, albeit that she accepted that it was not the original.
Mr Khan asked to speak to the Property Officer who he had seen previously. Andrea refused. Mr Khan then requested to speak with an Inspector in order to complain. Again Andrea refused.
After several minutes of discussion Andrea refused to discuss the matter any further and closed the side window of her office, leaving Mr Khan standing in the corridor with the property bags.
As Mr Khan remained waiting in the corridor a police officer emerged from the Custody Suite, proceeding towards the enquiry/foyer area.
Mr Khan explained to the officer that he wished to speak to a senior officer but was simply directed to return into the foyer to continue waiting.
As Mr Khan returned to the foyer, he attempted to engage with enquiry desk staff but they continued to be uncooperative. Mr Khan, whilst asserting his unhappiness with the state of affairs (his missing property) and making it clear that he wished to speak to an Inspector,was neither shouting nor displaying any physical aggression. Indeed, his body language was relaxed and non-confrontational. All of this is clear on the CCTV footage.
Two officers, PC A and PC B then emerged into the foyer and walked towards Mr Khan.
Upon receiving a call on his mobile phone, Mr Khan then moved towards the seating area which was adjacent to the entrance of the police station in order to use his phone.
PC A then approached Mr Khan, stood over him and said to him “You’re in my grasp, you arrogant bastard.”
Mr Khan did not wish to argue with PC A and therefore walked to an empty seat, still attempting to use his mobile phone, and sat down next to other members of the public who were waiting.
As Mr Khan was sitting down, he commented to PC A “Go away” and in response PC A pointed aggressively towards him and shouted “Get outside, get outside!”
In response Mr Khan said to PC A that he was now in the presence of witnesses (in an attempt to get PC A to desist from his unreasonable behavior). PC A then attempted to grab hold of Mr Khan’s arms.
Mr Khan recoiled from PC A’s grasp, and got to his feet in a natural attempt to escape PC A’s assault. At no point, did Mr Khan in any way attempt to strike out at PC A. PC A then pushed/ shoved Mr Khan and pursued him in an aggressive manner towards the door.
PCs A & B now attempted to put handcuffs on Mr Khan and also kicked Mr Khan’s leg. In response Mr Khan ran away from PC A. He had no idea why the Officers were doing this to him. PC A had not stated that Mr Khan was under arrest.
Mr Khan was now pursued across the grounds of the police station by PC A and PC B and numerous other officers.
Mr Khan was sprayed with PAVA gas, handcuffed and returned to the police station where he was escorted to the Custody Suite.
During the pursuit, Mr Khan merely attempted to evade the officers by running behind trees and weaving to avoid their grasp, as if playing a game of ‘tick’ (albeit with sadly higher stakes than most playground games). He did not display any physical or verbal aggression to the officers and did not attempt to strike any of them.
Upon Mr Khan’s presentation before the Custody Sergeant, PC A stated his grounds of arrest which were recorded as follows – “He has become aware of shouting and swearing at the front desk and has attended at that location with arresting officer and sees DP verbally abusing front desk clerks over matters to do with his property. DP is warned regarding his conduct but ignores requests to desist by continuing to shout, swear and bang on the counter. Arresting officer attempts to remove DP from the police station and in doing the DP attempts to strike the arresting officer. DP is restrained and arrested for disorderly behaviour contrary to Section 5 of the POA 1986, but runs away and tries to hide behind a tree”.
During his presentation of Mr Khan to the Custody Sergeant PC A can clearly be heard to make the following false accusations against Mr Khan –
- He started waving his hands about and towards me
- He’s got up and come back towards me
- He is throwing his arm out towards me again
- I told him I’d remove him at which point he started throwing a fist at me
- As I’ve pushed him out of the Police Station, he’s continued to throw his arms about
- He started making a fist so I pushed him away
Mr Khan was detained for a few hours before being released on bail so that further enquiries could be made.
When Mr Khan did return to the police station, he was charged with an offence contrary to Section 4A of the Public Order Act 1986 and bailed to appear at his local Magistrates Court.
Mr Khan subsequently pleaded not guilty and the case went to trial, where he was formally acquitted. In their judgment, the Magistrates were highly critical of the evidence which had been offered against Mr Khan by police staff, describing that evidence as being“discredited by the CCTV footage”.
Mr Khan was advised to bring an action against the police.
Following an internet search, Mr Khan contacted me and asked me to take on his case.
On his behalf, I intimated a claim for false imprisonment, assault and battery, malicious prosecution and/or misfeasance in public office.
Notwithstanding the obstacles that he faces, Mr Khan has issued court proceedings. Indeed the Police have now admitted falsely imprisoning Mr Khan, but continue to dispute his claim for malicious prosecution. As I alluded to above, I believe this approach on the part of the Police is because they do not wish to admit that their officers or staff are guilty of telling deliberate lies as opposed to ‘merely’ making an error of judgment (as damages can be recovered for an unreasonable /incompetent arrest without needing to show it was malicious – unlike for a prosecution). The trial is a way off but in light of the available evidence I am confident that Mr Khan’s claim will succeed in its entirety.
Mr Khan’s case is a fairly classic example of a malicious prosecution, where the Claimant alleges that the prosecution case brought against him was based on concocted Police evidence. Fortunately for Mr Khan, early efforts were made to secure and preserve both the waiting room and custody CCTV footage, which I believe will weigh heavily in his favour as the claim proceeds. Not all such Claimants are so fortunate, and I am caused to reflect on the number of occasions Police Officers ‘fit’ someone up for an offence by telling deliberate untruths – often false allegations that they were assaulted or obstructed by the person – without being caught out by the unblinking eye of video evidence.
Please note that for the purposes of anonymity, all names in this blog have been changed.