Appeal Court says prisoner can sue Ministry of Justice where prison officers cause a prosecution

On 20 November 2009, the Court of Appeal dismissed an appeal brought by the Ministry of Justice against a judge's refusal to strike out a malicious prosecution claim brought by a prisoner.  The claim arose from an incident with prison officers in the segregation unit of HMP Long Lartin on 30 June 2002.

On 30 June 2002, prison officers used significant force on Mr Scott, resulting in a black eye and other injuries.  Six prison officers made statements to the police claiming that Mr Scott had assaulted three of them. Mr Scott made a complaint to the police that he had been assaulted by the prison officers, threatened and racially abused, and that they had fabricated the claim that he had assaulted them to cover up their own wrongdoing and the injuries he sustained.

Mr Scott was prosecuted for assault and affray. He was acquitted of all criminal charges after a full jury trial at Worcester Crown Court in March 2004.

Mr Scott then started civil proceedings against the Ministry of Justice for the assault by prison officers and malicious prosecution. He was granted a jury trial. At that point, just before exchange of witness statements, the Ministry of Justice (MoJ) asked the Court to strike out the malicious prosecution claim, saying that the prison officers could not be treated as the prosecutor. (Without the malicious prosecution claim, Mr Scott would lose the right to have a jury trial.)

The MoJ application was dismissed by judges in the County Court and the High Court. The MoJ then appealed to the Court of Appeal.

They argued that a malicious prosecution claim could not succeed because the prison officers could not be treated as the prosecutor. The detailed arguments were that:-

1.  Someone who complains to the police can only be regarded as the prosecutor in a malicious prosecution claim where the facts of the alleged offence are only within the knowledge of the accuser and the accused; and

2. The High Court judge wrongly held that the Crown Prosecution Service had not made an independent decision about charging and prosecuting Mr Scott, as there was evidence available additional to the prison officers’ statements.

Today, in a unanimous judgement, the Court of Appeal rejected those arguments and upheld the decisions below. In the leading judgment, Lord Justice Pill held the following:-

The question is whether, on the facts, it is arguable that the prosecution was procured by the prison officers and the circumstances were such that it was virtually impossible for the CPS to exercise any independent discretion or judgment.

I have not accepted that the right to bring an action for malicious prosecution is confined to cases in which there is a single prosecution witness with exclusive knowledge of the facts….

The complaint was made by five prison officers, responsible public officials.  The events occurred in the closed world of a prison in which the respondent was detained.  Their statements were consistent with each other.  Complaint was made to the CPS in clear and strong terms.  It can strongly be argued before a jury that it was unrealistic to expect the CPS to take a decision other than to prosecute.  The responsible solicitor advised a prosecution.  She did so without first considering medical evidence, which she acknowledged would in due course be necessary.  The decision of the CPS was entirely predictable and the five complaining officers would have expected no other.   Indeed, they would have been dismayed if a different decision had been taken.

…The availability of other potential evidence (for example from other prisoners) does not defeat an arguable case that it was the five prison officers who, by making the statements they did, in the circumstances they did, procured this prosecution…Arguably, it was virtually, in practical terms, impossible for the CPS to exercise independent discretion in the face of such evidence.  I give full weight to the need to protect those who complain to the police of alleged criminal conduct and also to the modern role of the CPS.  I am, however, unable to hold that this claim that the prison officers had procured the prosecution, as that term is used in the authorities, should be struck out.

Mr Scott is delighted with the decision and trusts that his civil claim can now be heard by a jury, without any further delay.

His solicitor, Kate Maynard, said:-

“This is a fantastic decision for Mr Scott and all those in the custody of the state, and is a significant step towards combating impunity for the abuse of power by public officers like prison officers towards those in their care.

I have been acting for Mr Scott in this case since working on his criminal defence. Years later, I hope that I can help him to bring this case to a swift conclusion, so he can move on. Mr Scott thanks the Legal Services Commission for continuing to support his fight for justice.”

For more information please contact:

Kate Maynard, Partner              Telephone: 00 44 (0)7812 974613

NOTES FOR EDITORS

1.  In a malicious prosecution claim, the claimant must show:-

(i) That he was prosecuted by the defendan

(ii) That the prosecution was determined in his favour

(iii) That it was without reasonable and probable cause

(iv) That it was malicious

2.  This case confirms that prison officers (and therefore the Ministry of Justice who are vicariously liable) can now be regarded as the prosecutor, although in fact the decision to prosecute is made by the police and the CPS.

3. Hickman & Rose is a niche city firm with a criminal defence team and civil department. The civil team is renowned for its work in seeking public and private law remedies in the UK and other jurisdictions on behalf of victims of crime and other victims of the abuse of power by state agents within the criminal justice system.  Chambers 2010 UK Guide to the Legal Profession describes the civil department as ‘a fantastic team – one of the best’. The combined resources of the civil and criminal teams position the firm uniquely to fight for justice on behalf of their clients.