McHarg v Chief Constable of Thames Valley Police [2004] EWHC 5 (QB)

Case No HQ 03X00653[2004] EWCH 5 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 9 TH January 2004
Before
THE HONOURABLE MR JUSTICE TUGENDHAT
Between
ROBERT MCHARGClaimantTHE CHIEF CONSTABLE OF THAMES VALLEY POLICEDefendant
John Beggs (instructed by Barlow Lyde and Gilbert) for the DefendantAnthony Metzer (instructed by Russell Jones & Wlaker) for ClaimantHearing Hearing dates: 18 December 2003
Approved JudgmentI 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..............................The Honorable Mr Justice Tugendhat

Introduction

[1]The Claimant is a police officer serving with the Thames Valley Police. He was arrested on suspicion of rape on 19 July 1998 after the complainant had reported him in the early hours of that morning. He was charged on 11 September 1998. By letter dated 18 December 1998 the Crown Prosecution Service (‘CPS’) notified the Defendant that the proceedings against the Claimant had been discontinued because the complainant was no longer willing to give evidence.[2]Earlier this year, 2003, he commenced these proceedings claiming damages for malicious prosecution arising out of the charge. No complaint, or claim for false imprisonment, is made in respect of the arrest.[3]The case is ready for trial. Witness statements have been exchanged, and the trial could take place on or after 19 January 2004.[4]The Defendant now applies for the Claimant’s Particulars of Claim to be struck out under CPR 3.4(2)(a) on the grounds that they disclose no reasonable grounds for bringing the claim. Alternatively, the Defendant applies for summary judgment under CPR24.2 on the grounds that the Claimant has no real prospect of succeeding on the claim and there is no other compelling reason why the case should be disposed of at trial. Given the stage which the proceedings have reached, I shall consider the matter first under CPR 24.2.

The factual background

[5]The factual background can be conveniently stated by citation of the Report of the Investigating Officer, DI Colchester, dated 15 August 1998. The Report is addressed to the Defendant’s Complaint’s and Discipline Department. The report was submitted by the Assistant Chief Constable on behalf of that Department to the CPS (addressed to the Director of Public Prosecutions) on 20 August 1998, with a covering letter requesting advice. It was accompanied by a file of evidence. The file contained some 177 pages of Exhibits and 21 witness statements, all of which are before me. These statements include a number showing the immediate complaint by the complainant and her distress, the fact of which the Claimant could not explain in interview.[6]Reports of this kind are commonly protected by public interest immunity. This report is put before me as an exhibit to a witness statement filed for the Claimant. Although not referred to in his Particulars of Claim (because he did not then have it, so I understand), the case for the Claimant has been developed by his counsel Mr Metzer by reference to the Report, as well as by reference to the pleaded case. There is a close relationship between the pleaded points and the points made by reference to the Report.[7]On 3 September 1998 advice was given to the Assistant Chief Constable at the Defendant’s Complaints and Discipline Department by a Senior Crown Prosecutor on behalf of the CPS. After acknowledging receipt of the letter of 20 August 1998 and enclosures, she wrote: ‘Having carefully considered this case I am satisfied that criminal proceedings should be instituted against [the Claimant] for the offence of rape’.[8]At the time of the alleged offence, the complainant was aged 25 years, and was a waitress. She was the daughter of a lady who lived very near to the home where the Claimant lived with his wife and young son.[9]The Report reads in part as follows (I have inserted substitutes for the name of the complainant – where she is referred to by name - and for the names of the witnesses): ‘7. At about 5.00am on Sunday 19th July 1998 the victim [the complainant] attended Slough Police Station front counter where she spoke first to WPC 1615 SKINNER. She appeared in a distressed state, crying and smelling of alcohol. The victim put her car keys on the counter, stated that she had driven to here from Old Windsor over the limit and wanted to speak to someone.[8]At 5.15am PC 3817 COURTENEY of the Traffic Department was on duty at the Police Station and spoke to WPC SKINNER about the victim. As a result of their conversation the victim was breath tested, which was positive, and was subsequently arrested. Custody record …. At 5.52am the victim provided a positive breath test sample of 72ug%, the limit being 35%. The victim was subsequently reported for summons by WPC GREAVES in relation to this matter.[9]The victim was spoken to further by WPC SKINNER and WPC 3202 MOUNTJOY during which the victim gave an account of an incident, which had occurred prior to her attending the Police Station. A tissue used by the victim was later handed to Sgt SEATON. The victim told the officers that she had been out with her family the previous evening at the …. Club. Her parents had introduced her to a police officer, who lived in the same road as them, by the name of “Rob” (PC McHARG). At the end of the evening they had all walked back to the mother’s home at … Avenue … where they had stayed for sometime until around 3.00am.[10]The victim stated that she and Rob walked back to his house at … Avenue, where in the garage, despite her repeatedly telling him she didn’t want to, he had sex with her against her will. She had then gone home and argued with her mother before leaving the house and driving to the Police Station.[11]Mr …., the victim’s stepfather, states that following the social gathering at the house, at about 3.00am, he saw [the complainant] leave the house and walk off with Rob towards his house. He retired to bed and then about half an hour to an hour later he heard [the complainant] return. He got up to see her and found her sitting, curled up, on the doorstep, sobbing. He attempted to comfort her and she said, “All he wanted was a shag”. [The step-father] went back upstairs to speak with the victim’s mother.[12]Mrs…., the victim’s mother, says that she left the social gathering at their home and retired to bed before 3.00am leaving the others downstairs. She went to sleep but was later aware of her husband telling her, at about 3.30am, that [the complainant] had gone off with Rob and that he was worried. He had retired to bed and then about half an hour later he went back downstairs. [The complainant] then came into the bedroom crying.[13]Mrs …. had asked the victim if she had sex with Rob, to which [the complainant] replied, still crying, “Yes, but I didn’t want to”. She was then asked, “Why didn’t you walk away”. [The complainant] replied, “I couldn’t. [The complainant] went back downstairs and later left the house in the car.[14]At about 4.15 –4-30am Mrs … had gone up the road to Rob`s house because she was worried about where [the complainant] had gone. Mrs McHARG answered the door and said that Rob had just got in and was drunk. Rob McHARG came to the door and Mrs … said, “[the complainant]’s gone missing in the car, she told me she had sex with you, why did you do it”. She says Rob replied, “It’s life or that’s life”. He didn’t seem concerned and this upset her so she returned home. INVESTIGATION[15]An officer in the case was appointed, Detective Inspector David COLCHESTER. The conduct of the investigation was to be overseen by Thames Valley Police, Complaints and Discipline Department, Detective Chief Inspector James McBETH.[16]WPC Stephanie BURLEIGH from the Family Protection Unit was contacted and spoke with the victim. The victim consented to a medical examination and gave further details of the incident.[17]At 10am on Sunday 19th July 1998 the victim was medically examined by Dr Jean BARKER at her surgery. She gave an account of what had happened to Dr. BARKER. A general examination showed no evidence of any recent injury to her private parts. A number of forensic samples were taken: the swabs would tend to indicate the presence of semen. The victim discussed and received appropriate advice and accepted the morning after pill.[18]A full statement was taken from the victim later that day within which she formally records the details of the allegation. The main elements of her allegation are as follows:[19][The complainant] says that her mother introduced Rob to her in the … Club and that during the evening they were chatting occasionally and at one point had a dance. They left the club at about 11.30pm on Saturday 18th July 1998 and walked home together following her parents.[20]At the entrance to the church on … they stopped to have a cigarette. At this time, with the victim’s consent, they proceeded to kiss and cuddle. They moved into the churchyard to get out of the light and he led her around to a paved area at the rear of the church. She states that Rob undid her bra and fondled her breasts and that she undid his trouser zip and fondled his erect penis inside his trousers. He then put his hand inside her leggings and put his finger into her vagina. At this point the victim states that she told Rob to stop, as she did not want to continue. She said, “I don’t want to have sex”. He agreed and there then followed a brief disagreement over who had said, “No”, first. The victim concluded by telling Rob that because of him being married with kids she did not want to have sex with him.[21]The victim and Rob then walked to her parent’s home passing Rod’s home on the way. They stayed at the parent’s home for a couple of hours or so, when Mr …. suggested the evening should end. Rob walked outside and the victim states that she went outside with him. She states that Rob was holding her hand leading and persuading her to walk along the road towards his house. He kept saying, “Come on, come on”. He led her down the driveway of his house, … Avenue and into the garage at the rear. Inside he got a blue blanket and laid it on the ground. It was quite dark in the garage.[22]She states that she said, “I don’t want to do anything”, but he kept repeating her name …. Rob then pulled her down onto her knees and then he pushed her down onto her back. He then started to undress her but she couldn’t recall exactly how this happened. She can recall that she kept moving her head from side to side and saying the word, “No”. He kept trying to kiss her. She put her hands across her face and chest and she said she felt totally powerless”.[23]She says that, “he inserted his penis into her using his hand it went in easy because it wasn’t very big”. “He kept trying to kiss my face and I kept moving my head to one side. He then rolled me over onto my hands and knees and entered me again”, “I kept thinking how much I wanted it to end so I could get up and get out”. Rob ejaculated inside the victim and then got up. The victim says she hurriedly got dressed and with her knickers in her hand she left the garage and walked home. “Rob followed for a short time before running back to his house”. ARREST[24]At 8.00 pm on Sunday 19th July 1998 DI COLCHESTER and DCI McBETH attended … Avenue, … , Robert McHARG answered the door and the officers were invited inside. McHARG was asked and he confirmed that he had been with the victim during the early hours and confirmed that sexual intercourse had taken place. He was advised of the allegation and arrested at 8.05pm by DI COLCHESTER. He was cautioned and asked if he understood to which he replied, “Yes”… INTERVIEW[31]At 2.09pm, together with Detective Constable David BRYAN, DI COLCHESTER interviewed McHARG, together with Mr John PARKINSON his solicitor, on tape. Summary … – McHARG gave a more detailed account of his action in the cemetery where both consented to kissing and fondling each other. He says that he fondled the victim’s breasts and vagina under her clothing. She also fondled his erect penis having unzipped his trousers. He accepted that ‘she’ stopped the sexual contact and did not want it to go further because they were in a cemetery and due to the fact that he was married. He recalled some confusing conversation about who said “No” but he acknowledged that when they left the cemetery he knew the answer was ‘No’ to sex.[32]At 2.54pm, together with Detective Constable David BRYAN, DI COLCHESTER interviewed McHARG, together with Mr John PARKINSON his solicitor, on tape. … Summary (…) McHARG gave a more detailed account of his actions upon leaving the cemetery, the walk back to her parents house and the next few hours socialising with the victim and her parents. He describes that when he left the house, the victim walked outside with him. They talked and kissed for a short while before walking off down the road towards his house. He says she went willing to his garage and denied pulling her by the hand or having to persuade her inside.[33]At 4.38pm, together with Detective Constable David BRYAN, DI COLCHESTER interviewed McHARG, together with Mr John Parkinson his solicitor, on tape. … Full transcript (…) – Mc-HARG gave a more detailed account of his actions in the garage where he says they both consented to sexual intercourse and denied that the victim had rejected or denied him having sex.[34]At 5.21pm, together with Detective Constable David BRYAN, DI COLCHESTER interviewed McHARG, together with MR John PARKINSON his solicitor, on tape. (…). Full transcript (…) – McHARG continued to give more details of his actions in the garage, of how the sexual intercourse had taken place. It was strongly put to McHARG that the victim kept moving her head from side to side, kept saying “NO”, how she tried to put her hands across the face and chest and that she said she felt powerless. He said, “It wasn’t like that. I could not have had sex with somebody who didn’t want to have sex with me. It weren’t like that”.[35]McHARG was questioned at length about the allegation but continually denied that the victim had not consented. He could not explain how the two accounts were so different nor explain the very distressed reaction of the victim within minutes of him leaving her outside her house. McHARG denied rape. The interviews were concluded at 5.53pm.[36]McHARG was subsequently released from custody at Bracknell Police Station on Police 47(3) Bail to return on Wednesday 2nd September 1998.[37]Upon his release from custody, McHARG was seen by Supt LOUGHBOROUGH, served a Regulation 7 notice and formally suspended from Police duty. CONCLUSION[45]It is apparent form the accounts of both the victim and Robert McHARG that both of these people had been drinking quite heavily throughout the evening and this may have dulled the recollection of some facts.[46]Fatigue is also an issue in relation to the clarity of the victim’s final statement, when compared to the accounts given to WPC SKINNER initially and Dr BARKER. Particularly in relation to the removal of clothing in the garage which was finally quite vague and some of the conversation.[47]The gradual building of a friendship between McHARG and the victim at the club is not disputed and there are clearly a number of conversations between the two after they were introduced. At one point the victim is offered some part time bar work by Mr McHARG and there is some conversation about McHARG being a Police Officer.[48]At no stage does it appear that McHARG produced his Police warrant card for any specific reason, although I do not rule out that it may have been seen, inadvertently, at some stage during the evening by the victim.[49]The friendship moves on a step when they agree to dance with each other at the end of the evening without issue.[50]The victim has expressed that she was happy to stop at the cemetery and to then kiss and cuddle with McHARG. This element of consented sexual contact is primarily agreed to by both victim and McHARG and their accounts are very similar. There may be an issue with regard to whether the victim voluntarily moved her hand to pull down the sip of McHARG`s trousers or whether McHARG guided her hand to the zip. However it is not in doubt that the victim happily fondled the erect penis of McHARG.[51]The disagreement between the victim and McHARG as to who decided to stop the continuation of sexual contact behind the church is a little confusing. I believe this can be put down to the different interpretations of the words used? What is clear is that, whether the circumstances of the location or the issue of McHARG being married with a child, was the reason why the sexual contact stopped, when both McHARG and the victim left the cemetery, the decision had been agreed to, that sexual intercourse would not take place![52]The walk from the cemetery to the parents` home appears amicable and they are seen by L and N. L saw McHARG with his arm around the victim guiding her along the road.[53]There appears to be very little contact inside the parents` home, McHARG appearing to be speaking with Mr …. for most of the time. It is unclear why the victim goes outside and walks off along the road with McHARG. This is witnessed by Mr …. to appear amicable.[54]McHARG says he kissed the victim by the tree outside the parents’ house although this is not seen by Mr …. and not said by the victim.[55]The accounts vary extensively from this point because the victim says she was reluctant to walk with McHARG towards his house and yet McHARG says she was happy to walk with him. Although there was very little conversation had between the two, McHARG thought, from the contact outside the house, she was now consenting to go with him for sex?[56]The victim describes how she did not want to walk towards the garage but was persuaded by McHARG holding her hand and leading her to the garage. McHARG says the victim just followed him.[57]The victim describes her attempts to stop McHARG from having sexual intercourse with her. These attempts fall short of calling out, which would have been expected to have woken, a number of residents. McHARG describes the victim as willing.[58]The victim cannot really describe how her clothing was removed in any detail.[59]Dr BARKER would say it is unusual for a woman to be raped whilst on all fours without some sort of threat being made. The victim describes feeling dominated and McHARG having his own way.[60]The victim appears to be in a rush to leave, not putting her knickers back on and carrying them home.[61]McHARG describes walking the victim home showing no signs of unhappiness Mr …. describes the victim almost immediately having entered the house as extremely distressed and upset.[62]The disagreement with her mum clearly upset the victim further to the point that she left the house and drove off.[63]Having lived in the … area one might think that the victim would naturally drive to Windsor Police Station and not to Slough.[64]Overall, there are several unanswered questions. “What changed from the ‘No’ outside the cemetery to what McHARG would describe as a ‘Yes’ inside the garage?[65]There appears very little further conversation or activity, which would lead to an agreement or understanding by McHARG that the victim was willing.[66]How much emphasis should be placed on the victim’s responsibility to callout or struggle? Was saying “No” and resisting by moving her head and arms enough?[67]Did McHARG do enough to ensure that the victim was willing?[68]There is clearly an early complaint to both stepfather and mum. This is then further corroborated by the extreme reaction of the victim driving her car over the breath alcohol limit to Slough. RECCOMMENDATION[69]Firstly, in relation to the positive breath test provided by the victim. It is my view that [the complainant] believed she was a victim and therefore this I believe would be a satisfactory defence for her driving. I cannot believe that a court would prosecute her based on these circumstances. Therefore it is my recommendation that a decision of No Further Action be taken with regard to this matter.[70]In relation to the allegation of rape the issue clearly revolves around consent. The allegation is not helped by the fact that a degree of sexual contact was consented to during a first night meeting in a public area namely the cemetery! However, at the conclusion of this incident the answer was a definite and agreed ‘No’.[71]Sexual intercourse taking place in the garage is not disputed.[72]The victim is adamant that she was resisting and that McHARG would have known. McHARG is likewise adamant that consent was given freely.[73]In circumstances of one persons word against the other, evidence of early complaint is sought to help corroborate the allegation – this is clearly present.[74]It is my view that the case should go before a jury to decide whether or not Robert McHARG is guilty of rape’. INVESTIGATION ARREST INTERVIEW Summary … – McHARG gave a more detailed account of his action in the cemetery where both consented to kissing and fondling each other. He says that he fondled the victim’s breasts and vagina under her clothing. She also fondled his erect penis having unzipped his trousers. He accepted that ‘she’ stopped the sexual contact and did not want it to go further because they were in a cemetery and due to the fact that he was married. He recalled some confusing conversation about who said “No” but he acknowledged that when they left the cemetery he knew the answer was ‘No’ to sex. Summary (…) McHARG gave a more detailed account of his actions upon leaving the cemetery, the walk back to her parents house and the next few hours socialising with the victim and her parents. He describes that when he left the house, the victim walked outside with him. They talked and kissed for a short while before walking off down the road towards his house. He says she went willing to his garage and denied pulling her by the hand or having to persuade her inside. Full transcript (…) – Mc-HARG gave a more detailed account of his actions in the garage where he says they both consented to sexual intercourse and denied that the victim had rejected or denied him having sex. Full transcript (…) – McHARG continued to give more details of his actions in the garage, of how the sexual intercourse had taken place. It was strongly put to McHARG that the victim kept moving her head from side to side, kept saying “NO”, how she tried to put her hands across the face and chest and that she said she felt powerless. He said, “It wasn’t like that. I could not have had sex with somebody who didn’t want to have sex with me. It weren’t like that”. CONCLUSION RECCOMMENDATION

The tort of malicious prosecution

[10]In order to establish the tort of malicious prosecution, a claimant must prove(i) that he was prosecuted by the defendant,(ii) that the prosecution was determined in his favour,(iii) that the prosecution of the claimant was ‘without reasonable cause’, and(iv) that the prosecution was malicious. It is accepted that the Claimant can establish (ii). The Defendant does not accept that the Claimant can establish any of the other three matters. As to (i), the submission is that the police were not the prosecutor in this case. I will return to this submission later. As to the other two constituents of the tort, the Defendant submits that the Claimant cannot establish either of them. I shall take first the question of reasonable and probable cause. If the Claimant fails on any of these points, his claim fails.[11]In Matin v Commissioner of Police for the Metropolis [2002] EWCA Civ 907 The President, giving a judgment with which the other members of the Court agreed, said as follows: “15. … The third requirement is that the prosecution was without reasonable and probable cause, and the fourth that it was malicious. In Herniman v Smith [1938] AC 305, Lord Atkin approved the definition of reasonable and probable cause by Hawkins J. in Hicks v Faulkner [1878] 8 QBD 167 at page 171 "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."[16]The fourth issue is one for the jury, but the third is a matter of fact andlaw for the judge with the assistance of the jury who may be asked to find relevant facts which are in dispute. In Glinski v McIver[1962] AC 726 Viscount Simonds said at page 742 "…..such difficulty as there is in the correct statement and application of the law as to want of reasonable and probable cause, arises from the fact that, while it is for the judge to determine (whether as fact or law) whether there was such want, it is for the jury to determine any disputed facts which are relevant to that determination…."[17]Further difficulty may arise in the interaction between malice and want of honest belief. Viscount Simonds defined the relationship between the two elements at 744 "…..though from want of probable cause malice may and often is inferred, even from the most express malice, want of probable cause, of which honest belief is an ingredient, is not to be inferred."[18]He continued at page 744 "It is, of course, possible that the same facts may justify both findings. But it behoves the judge to be doubly careful not to leave the question of honest belief to the jury unless there is affirmative evidence of the want of it."[19]Want of reasonable cause is not therefore to be inferred from malice and if there was no evidence of want of honest belief, nor any other evidence of want of reasonable or probable cause for the prosecution, the question should not be left to the jury.[20]The question also arises as to how far a prosecutor should investigate the possible defence to the facts upon which he has formed the honest belief that it would be reasonable to prosecute. Viscount Simonds in Glinski v McIver said at page 745 " A question is sometimes raised whether the prosecutor has acted with too great haste or zeal and failed to ascertain by inquiries that he might have made facts that would have altered his opinion upon the guilt of the accused. Upon this matter it is not possible to generalise, but I would accept as a guiding principle what Lord Atkin said in Herniman v Smith[1938] AC 305, that it is the duty of a prosecutor to find out not whether there is a possible defence but whether there is a reasonable and probable cause for prosecution."[21]In the present appeal, the case has not yet been heard and we are still at the preliminary stage of an application for summary judgment. The issue has therefore to be considered in the light of the evidence which has not yet been tested. But the relevant time for consideration of the evidence available upon which the prosecution was launched was the [date on which the claimant was charged].” "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." "…..such difficulty as there is in the correct statement and application of the law as to want of reasonable and probable cause, arises from the fact that, while it is for the judge to determine (whether as fact or law) whether there was such want, it is for the jury to determine any disputed facts which are relevant to that determination…." "…..though from want of probable cause malice may and often is inferred, even from the most express malice, want of probable cause, of which honest belief is an ingredient, is not to be inferred." "It is, of course, possible that the same facts may justify both findings. But it behoves the judge to be doubly careful not to leave the question of honest belief to the jury unless there is affirmative evidence of the want of it." " A question is sometimes raised whether the prosecutor has acted with too great haste or zeal and failed to ascertain by inquiries that he might have made facts that would have altered his opinion upon the guilt of the accused. Upon this matter it is not possible to generalise, but I would accept as a guiding principle what Lord Atkin said in Herniman v Smith[1938] AC 305, that it is the duty of a prosecutor to find out not whether there is a possible defence but whether there is a reasonable and probable cause for prosecution."[12]Hart J added, also with the agreement of the other members of the Court:
‘In the tort of malicious prosecution, it is for the judge to decide whether there was want of reasonable and probable cause for the prosecution. The honesty of the prosecutor's belief in the existence of reasonable and probable cause is an essential ingredient of that concept and should be left to the jury to determine if, but only if, there is some affirmative evidence of lack of it (see per Viscount Simonds, with whom Lord Reid agreed, at p.744, Lord Radcliffe at pp.753-754 and 755, Lord Denning at p.760, and Lord Devlin at pp.768 and 779). Evidence of malice does not itself allow the inference of lack of honest belief to be drawn (see per Viscount Simonds at p.744, Lord Radcliffe at p.757, Lord Denning at p.762, and Lord Devlin at 780)’
.

The application

[13]That case, like this one, was an application for summary judgment pursuant to CPR 24.2. Although there were claims for wrongful arrest and conspiracy which were in any event proceeding to trial, summary judgment was given on the claim in malicious falsehood because no evidence was presented to the Court upon which a judge might rely in support of the allegation of want of honest belief by the prosecutor in that case, and so that part of the claim had no real prospect of success. The court considered that it was fanciful to suppose that evidence of lack of honest belief on the part of the prosecutor might emerge from that investigation. These are, of course, the tests applicable to an application under CPR 24.2. The test is a high one.[14]Counsel for the Claimant does not criticise the advice given by the CPS. His case as advanced before me was focussed on DI Colchester. In summary he submits that DI Colchester maliciously (in the sense of personal ill will) took and inappropriately seized control of the allegation made against the Claimant, sought to influence Dr Barker in respect of what she should put into her statement, when he visited her at her home address, failed to make obvious further enquiries (in particular of a neighbour who lived next door to the Claimant) was aware of the incredibility of the complainant and ultimately did not present a fair and balanced report to the CPS, which therefore advised that the Claimant be charged without being fully aware of the circumstances set out above. His skeleton argument continues ‘In the premises it is averred that the prosecution of the Claimant lacked reasonable and probable cause, and was malicious, in the legal sense of it being pursued for a wrongful motive’.[15]It is therefore necessary to consider what the Claimant submits was omitted from the information provided to the CPS, and to consider the fairness of the Report. After that it will be necessary to consider the honesty of the belief of DI Colchester.[16]The primary point relied on for the Claimant is in relation to Dr Barker. Her involvement is specifically mentioned in paras 17 and 59 of the Report. The Claimant places reliance on a document headed ‘Disclosure Officers Report’ dated 10 October 1998 and signed by DI Colchester. While post-dating the charge, I shall assume that the contents of it were known to DI Colchester before that date. In it there is reference to Dr Barker’s apparent ‘negative stance towards the victim’ and it is reported that Dr Barker ‘has only seen one rape where intercourse was carried out from behind with the victim on hands and knees. This case involved an offender with a knife. Dr Barker takes the view that the victim had opportunity to escape’. I shall also assume that Dr Barker’s views were relevant and admissible.[17]Dr Barker’s contemporary handwritten notes were included in the files sent to the CPS. They include a number of entries clearly indicating scepticism, such as:
‘?did she say anything to stop him?? She alleges she tried to go but he stopped her by talking – not physical force … ?‘rape’ occurred about 02.00 she is unsure’
. Dr Barker’s typed witness statement of 20 July 1998 was also included in the file. While that statement includes the complainant’s medical history and result of examination, it also contains, indeed largely contains, a report of what the complainant told Dr Barker. This included a number of points which would be likely to raise scepticism about the complaint. For example:
‘[she] told me she went willingly into the garage … I asked [her] if she did or said anything to stop [the Claimant] and she told me she did not – she felt he would not listen so she just lay there. She told me [the Claimant] used no physical force on her but she feel he had stopped her from leaving by talking to her. [She] told me [the Claimant] asked her to get on to her hands and knees, which she did and that vaginal sex was had in that position… [She] told me she made no effort to shout for help although she knew that [the Claimant’s] wife was in the house and likely to have heard if she called out … I saw [her] at 10.00am on 19th July..’
[18]For the purposes of this action witness statements have been obtained. One dated 30 August 2003 is by Dr Barker, filed for the Defendant. In this statement she says that her contemporaneous notes and July statement contain her best recollection of events. She then adds: ‘In July 1998 I saw and examined a woman who alleged that she had been raped by a serving Police Officers. At the time I was with the woman and afterwards, I was very concerned that much of her account of the event as she told it to me, was more consistent with consensual sex than with sexual assault. Despite this, I considered that the woman herself genuinely felt she had been assaulted’.[19]In her statement Dr Barker goes on to speak of a visit by DI Colchester to her home, which she says disturbed her. She says she was unsure whether he was coming to collect her statement, or to attempt to assist her in the writing of it. She states that this was in fact after she had written her July witness statement, and adds, of the visit: ‘9. … I felt it gave me a chance to talk to him and tell him that in my opinion the account of the alleged offence as the woman had told me it was consistent with consensual sex rather than rape…[11]I gave the statement to David Colchester when he arrived and I think I asked him to read it before we discussed the contents. I remember feeling that David Colchester was unhappy with the statement. I cannot remember his exact words but it was clear to me that he would have preferred me only to report the clinical findings and not to include the preamble which, in this case, I felt was very relevant.[12]However, David Colchester did not ask me to change the statement or to limit my statement. If he had done so, I would have refused.[13]As we discussed the case, I was left with the feeling that David Colchester was not really listening to my opinion. He was, I felt, to say the least in single minded manner.[14]I went to David Colchester in his office in Slough Police Station a few days later as I was concerned about his attitude. I had prepared some further notes explaining my serious concerns about the case but as far as I remember David Colchester declined the offer of a further statement. He said something along the lines of “you and I don’t think the same way” and that his experience was “different” from mine’.[20]A number of the statements filed for the Claimant refer to what Dr Barker had reported to those witnesses about the visit of DI Colchester to her home relating to the making of her July 1998 witness statement. They refer to what Dr Barker said at a meeting on 18 December 1998 at the Claimant’s home, at which Dr Barker was present for part of the time. While they attribute to Dr Barker much the same as she herself said in the statements and notes referred to, they suggest that Dr Barker was perhaps more emphatic than she herself appear to me to be in her own documents. The substance, however, is the same.[21]The Claimant invites me to conclude that on this evidence from and about Dr Barker the Claimant has a real prospect of establishing at trial two things: first that in the light of Dr Barker’s findings and opinions, there is an absence of reasonable and probable cause, and second, even if that is not so, then DI Colchester’s actions and conversations with Dr Barker show that he did not believe that there was reasonable and probable cause.[22]Neither conclusion appears to me to be possible. For this purpose I assume that the jury would find as a fact everything that is said in the witness statements referred to above, all of which (including Dr Barker’s) were relied upon in the Skeleton argument for the Claimant. As to the submissions on malice, I remind myself of the words of Lloyd LJ (as he then was) that ‘if there are no pieces of evidence that are more consistent with malice than the absence of malice, there is no evidence of malice to go to the jury’: Telnikoff v Matusevitch [1991] 1 QB 102, 102A.[23]The facts on which Dr Barker based her opinions were fully set out in the documents included in the file sent to the CPS. The Report draws attention to Dr Barker’s statements, albeit with less emphasis than she puts on them, and without endorsement. The facts on which Dr Barker bases her views are also to be found clearly set out in a number of other documents in the file, for example the fact that the complainant was on all fours at the time of penetration, the previous consensual sexual conduct, the proximity to the Claimant’s home of the scene, the alcoholic intoxication of both parties and other matters. Dr Barker’s views were not disregarded, but neither were they, nor should they have been, regarded as determinative of the question whether the Claimant should be charged or not. Mr Metzer submits that if the CPS had been provided with the information as to Dr Barker which goes further than that contained in the Report, then the CPS would have been bound to conclude that a 50 per cent chance of obtaining a conviction did not exist.[24]I cannot accept this submission. On this matter the CPS were not misled in any way, whether by omission or misrepresentation, by the information provided to them. Since it is accepted, inevitably in my view, that the decision of the CPS is not open to criticism, I conclude that there is no prospect at all of persuading a trial judge that there was an absence of reasonable and probable cause, on the basis of this point. It is the duty of a prosecutor to find out not whether there is a possible defence but whether there is a reasonable and probable cause for prosecution. There clearly was a possible defence to the charge, and Dr Barker’s points would doubtless have been deployed, had the case come before a jury. The fact remains that there is no real prospect of the Claimant showing that there was no reasonable and probable cause for the prosecution.[25]As to the belief of DI Colchester, I remind myself that the honesty of the prosecutor's belief in the existence of reasonable and probable cause is an essential ingredient of that concept and should be left to the jury to determine if, but only if, there is some affirmative evidence of lack of it. I find no such evidence. For this purpose I assume (without making any finding) that DI Colchester would have preferred Dr Barker only to report the clinical findings and not to include the preamble (as Dr Barker sates). That is entirely consistent with DI Colchester believing that there was reasonable and probable cause. There is no evidence at all for the alternative interpretation, namely that he shared Dr Barker’s opinions and beliefs, and deliberately concealed and misrepresented his own (or Dr Barker’s) beliefs in his Report.[26]The other matters on which the Claimant relies can be taken more shortly. One is that DI Colchester should not have been the Investigating Officer at all. This formed one of a number of matters in respect of which the Claimant made a complaint. In reporting the findings of the inquiry into that complaint on 17 February 2003, the Deputy Chief Constable agreed that it was inappropriate for DI Colchester, an officer from the Claimant’s own police area, to have been appointed to deal with the investigation of a serious crime alleged against the Claimant. I am not surprised at that conclusion. A number of reasons might be advanced in support of that view, but it is not for me to elaborate upon that in the present proceedings. That conclusion in itself does not advance the claim in malicious prosecution. At most it alerts the court to scrutinise with particular care the evidence as to the conduct of the prosecutor, to see whether there is evidence of malice. It might be suggested that if the CPS had been aware of the positions of the Investigating Officer and the suspect vis-à-vis one another, they too might have been more alert. But since I can find no evidence of absence of reasonable and probable cause or malice, this submission seems to me to be fanciful.[27]Another matter relied on is the failure to obtain statements from the complainant’s a neighbour. This complaint was made and was upheld in the letter of 17 February 2003. It is said that the neighbour would have been likely to assist as to whether he heard any noise at the time of the sexual intercourse in the garage next door to his house. Since there is no suggestion that the complainant did make any loud noise in protest, and since the fact of intercourse is not disputed, it is fanciful to suggest that any evidence from the neighbour could affect the question whether there was reasonable and probable cause. There is no evidence that the failure to obtain this statement was malicious.[28]Another matter relied on is the failure to obtain statements from the complainant’s mother-in-law (or it may be her mother who is intended to be referred to, it makes no difference for this purpose). It is pleaded that DI Colchester had been informed on 20 July 1998 that the complainant’s mother-in-law did not believe the allegation of rape and suggested that a possible motive for making it up might be as a ploy to gain sympathy from the complainant’s estranged husband, from whom she was in the process of obtaining a divorce. This does not seem to me to add anything to the case on reasonable and probable cause, still less on malice. At most it is a point that might go to a possible defence case.[29]In a witness statement dated 6 July 2001 the complainant has explained her decision to ask the police to drop the charge against the Claimant. In that statement she re-iterates the allegations of rape, but explains that she did not want to wait the time it would take for the matter to come to court, and that she wanted ‘to get on with my life’. There is no credible case for suggesting that DI Colchester had any role to play in this, and none to call in question the complainant’s explanation. In any event there would be nothing wrong or malicious in a police officer advising a complainant to consider such a decision carefully. The fact that she made this decision does not provide any basis for suggesting absence of reasonable and probable cause, still less malice.

Was the Defendant the prosecutor?

[30]Given the conclusions I have reached on the issues of reasonable and probable cause and malice I do not need to reach a conclusion on the interesting arguments addressed to me as to whether, since the introduction of the CPS, the police are to be regarded as a prosecutor at all in a case such as this.

Conclusion

[31]It follows that I do not need to consider the application under CPR3.4(2), and that summary judgment should be entered for the Defendant.[32]In reaching the conclusions that I have reached, I have not referred to the statement by DI Colchester in which he disputes certain of the matters in question, including the alleged visit by him to Dr Barker on 20 July 1998. That is not to be taken as a finding of fact against him on any point. It is a purely formal assumption made in favour of the Claimant to test whether, taken at its highest, he has a real prospect of success.