Gray v Crown Prosecution Service [2010] EWHC 2144 (QB)

Case No HQ 09X04370[2010] EWHC 2144 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/08/2010
Before
MR JUSTICE AKENHEAD
Between
BENJAMIN GRAYClaimantCROWN PROSECUTION SERVICE (sued as Chief Crown Prosecutor)Defendant
The Claimant appeared in person via video link for in personMiss C McGahey (instructed by The Treasury Solicitor) for DefendantHearing Hearing date: 11 th August 2010
JUDGMENT

Introduction

[1]The Claimant is Mr Benjamin Gray who was formerly an administrative assistant living in Bristol. Unfortunately for him he is currently in custody in relation to matters which are wholly irrelevant to his current Claim and application and to the Defendant’s application in these proceedings. The hearing took place with Mr Gray participating through a video link from HMP Horfield and the Defendant and its Counsel appearing in front of me in court. The Defendant is the Chief Crown Prosecutor, in effect however the Bristol Crown Prosecution Service (“CPS”). Mr Gray was courteous towards the Court and presented coherent and well researched arguments.[2]Mr Gray issued his Claim against the Defendant on 30 September 2009 effectively claiming negligence and malicious prosecution against the Defendant in relation to charges which led to him standing trial in Bristol Magistrates Court on various days between 25 March and 1 May 2009; he was acquitted of all charges. By application he seeks a finding that a Ms Sullivan is committed for contempt and that the Defence is struck out. The Defendant applies for summary judgement against Mr Gray and to strike out the Claim. The Background[3]For one reason or another, Mr Gray had attended at the Stapleton Road Job Centre in Bristol but in late June 2008 he was informed in writing by the Job Centre that he was banned from entering it; the reasons were said to have been a number of incidents in which he was said to have intimidated members of staff and tried to film inside the premises.[4]On 18 July 2008, PC Davies attended the Job Centre and arrested Mr Gray supposedly to prevent a breach of the peace by him as he was inside the building filming staff and they had asked him to cease filming and leave the building. On 27 August 2008, during the working day Mr Gray entered the Job Centre with a camcorder and started to film. The police were called and PC Davies attended again and arrested him on a charge of harassment. He was handcuffed and taken to the police station arriving there at about 3 PM.[5]He was detained in custody on the charge of harassment. Later that day, PC Carter, having been to the Job Centre, went into Mr Gray’s cell and said that he was "further arresting" Mr Gray for an offence under Section 5 of the Public Order Act 1986. That is recorded at 19.27 on the police Detention Log and is pleaded by Mr Gray at Paragraph 4 of his Particulars of Claim. Following an interview, he was returned to his cell and it was said that he then assaulted PC Carter by throwing a plastic cup at him and kicked him and assaulted another officer, PC Lynch. Whilst he accepts that he threw a cup and kicked out at PC Carter, Mr Gray says that he was seriously assaulted by the police officers. A nurse’s evidence was that he had a swollen area with a linear abrasion central to the swelling on his left lower jaw, swelling above the right elbow and several skinned areas above and below together with a skinned area over the left elbow.[6]In the result, Mr Gray was charged with offences, firstly of using threatening words or behaviour contrary to Section 5 of the Public Order Act 1986, and secondly and thirdly assaulting PCs Carter and Lynch respectively in the execution of their duty contrary to Section 89 (1) of the Police Act 1996. No charge was made in relation as such to harassment. The Section 5 offence related to what happened at the Job Centre whilst the other two assault charges related to what happened at the police station.[7]There is no doubt that the file was reviewed by a senior CPS lawyer Mr King on 5 September in 2008 and in his view the charges merited prosecution. The case was also reviewed again on 9 September 2008 by a more junior prosecutor, May Li, who also concluded that the case should be prosecuted.[8]The case having been listed initially in November 2008 and Mr Gray pleading not guilty, the trial took place from 25 to 27 March 2009, going part heard to 1 May 2009.[9]Ms Sian-Elin Sullivan was the Senior District Crown Prosecutor of the CPS for Avon and Somerset who took over the conduct of the prosecution of these charges in October 2008, the decision to prosecute having been made beforehand. Counsel, of some 17 years call, Mr Brendon Moorhouse was instructed to prosecute.[10]Mr Gray represented himself at trial. PC Carter gave evidence during the course of which he said that, by the time that he had made his decision to charge Mr Gray with an offence under Section 5 of the Public Order Act 1986, he had decided not to pursue a charge of harassment under the Protection from Harassment Act 1997 which was the charge on which Mr Gray had been arrested initially on 27 August 2008. The Custody Sergeant was called as a witness and in effect appears to have confirmed that no review of detention had taken place.[11]The District Judge (DJ Williams) trying the case dismissed the charges. In a letter from HMCS dated 25 June 2009, the District Judge indicated that his reasons for deciding the case as he did were as follows: “As to the charges under the Police Act 1996, the evidence called by the prosecution demonstrated that by the time of the alleged incident grounds for detaining Mr Gray in police detention no longer applied. The investigating officer had, for all practical purposes, abandoned the allegation of harassment for which detention in police detention prior to charge had been authorised. The custody officer had not authorised detention before charge in relation to the allegation under s.5 of the Public Order Act 1986, in respect of which the investigating officer wished to interview Mr Gray. The investigating officer had told the custody officer that he had arrested Mr Grave for a s.5 offence whilst in police detention. It was by this stage that the officer had abandoned the harassment allegation. It appeared to the court that the custody officer did not then carry out his duties under s.37 of PACE in relation to that information; i.e. to consider the available evidence and then either direct that Mr Gray be charged with that alleged offence (and be detained for that to happen) or to authorise his further detention for that alleged offence to be investigated by way of interview under caution. Absent such authority, Mr Gray was no longer lawfully detained in police detention. The evidence called by the prosecution therefore established that Mr Gray was not, as a matter of law, lawfully detained at the time of the alleged incident which gave rise to the charges under the Act. The prosecution conceded that if that was the finding of law in relation to those charges, then neither charge could proceed as the prosecution would not be able to prove that either of the alleged assaulted officers, or any police officer then concerned was acting in the execution of his duty. Since that was the ruling on the law at the conclusion of the prosecution case, the charges were dismissed at that stage. The court made no finding of fact in relation to the incident itself. As to the charge under s.5 of the Public Order Act 1986, the court found that whereas the conduct was disorderly, the prosecution had not discharged the burden of proof under s.6 (4) of that Act in relation to Mr Gray."[12]Although Mr Gray instituted proceedings against the police, they stand, at least currently, dismissed. The Proceedings[13]Mr Gray’s Particulars of Claim runs through the history of him entering the Job Centre on the 27 August 2008 (Paragraph 2), his subsequent arrest by PC Davies for harassment (Paragraph 3), his being told later by PC Carter that he had been "further arrested" on the Public Order Act offence (Paragraph 4), his being interviewed and assaulted by PC Carter and others (Paragraph 7), his being subsequently charged with three offences (Paragraph 8), and his trial and acquittal (Paragraphs 9-10). He pleads at Paragraph 11: The findings of DJ Williams [were] made on the same evidence that was available to the prosecutor prior to the decision to press charges and prosecute. Consequently not only were charges laid "without reasonable or probable cause" and therefore provides pre-established grounds for a Malicious Prosecution claim against the Defendant, but moreover, there is the added outrage that the prosecution was brought against someone who was not only falsely imprisoned but also the victim of injuries to his person whilst illegally deprived of his liberty." He goes on to criticise in Paragraph 12 the Defendants for not responding to a pre-action protocol letter or offer any apology or explanation for their decision, which he says "in itself is proof of malice"; it is said that the lack of formal response demonstrates "complete contempt, not just for my right to liberty and security and fair trial under the HRA, but any notion that they are indeed accountable for their actions." Paragraph 13 asserts, albeit in non-legal language, a claim for malicious prosecution and negligence.[14]The Defence, served on 10 November 2009, does not follow the traditional method of traversing every paragraph in the Particulars of Claim. It sets out the three charges which were ultimately laid against Mr Gray relating to incidents occurring at the Job Centre and at the Police Station (Paragraph 2), the conduct of the CPS in considering the file, and reviews by Mr King and Ms Lee (Paragraphs 3-5), and the fact of the trial and the acquittal (Paragraphs 6-7). Paragraph 8 denies the allegation that there was "an absence of reasonable and probable cause for the prosecution of the Claimants at any time when the Defendant was responsible for the conduct of the said prosecution". Paragraphs 9 to 11 plead:
“9. With regard to the first charge [Public Order Act], there was evidence available to the Defendant to the following effect: a. That, in about late June 2008, the Claimant had been informed in writing that he was banned from entering the…Job Centre for a period of three months. b. That the said three-month ban had been the result of a series of incidents at the Job Centre in which, into alia, he had intimidated members of staff and had attempted to film inside the premises. c. That on 27 August 2008 the Claimant had: (i) entered the Job Centre in breach of the said ban; (ii) refused to comply with requests to leave; and (iii) conducted himself in a way that members of staff and members of the public who were present found objectionable and/or intimidating, into alia by raising his voice and by filming and refusing to comply with requests to stop filming despite being told that people who were being filmed objected to the same. Whilst it is admitted that the Claimant was not convicted on this charge, it is averred that the evidence available to the Defendant amply met the requirements of the existence of reasonable and probable cause for the prosecution. 10. With regard to the second and third charges, there was evidence available to the Defendant that the Claimant had assaulted both PC Carter and PC Lynch at the Trinity Road Police Station at about 8:55 p.m. on 27 August 2008. This evidence amounted to reasonable and probable cause for the prosecution. 11. It is admitted and averred that the second and third charges were dismissed by the District Judge on the basis of a ruling on the law to the effect that the Claimant was being unlawfully detained at the time of the assaults. The Defendant’s case is that this ruling does not amount to evidence of an absence of reasonable and probable cause for the Claimant’s prosecution on these charges because: a. The ruling was wrong in law; and b. In any event, the evidence of the investigating officer (PC Carter) upon which the ruling was founded, i.e. evidence that he had abandoned his investigation of the Claimant in respect of alleged harassment prior to the assaults, was given orally at trial and the said evidence was not apparent to the Defendant or his offices on the material available to them prior to trial.” a. That, in about late June 2008, the Claimant had been informed in writing that he was banned from entering the…Job Centre for a period of three months. b. That the said three-month ban had been the result of a series of incidents at the Job Centre in which, into alia, he had intimidated members of staff and had attempted to film inside the premises. c. That on 27 August 2008 the Claimant had: (i) entered the Job Centre in breach of the said ban; (ii) refused to comply with requests to leave; and (iii) conducted himself in a way that members of staff and members of the public who were present found objectionable and/or intimidating, into alia by raising his voice and by filming and refusing to comply with requests to stop filming despite being told that people who were being filmed objected to the same. a. The ruling was wrong in law; and b. In any event, the evidence of the investigating officer (PC Carter) upon which the ruling was founded, i.e. evidence that he had abandoned his investigation of the Claimant in respect of alleged harassment prior to the assaults, was given orally at trial and the said evidence was not apparent to the Defendant or his offices on the material available to them prior to trial.”
[15]The Defence continues in effect to complain that Mr Gray had not in his pleading identified which of the CPS’ servants or agents had acted with malice, that he had not particularised his malice allegation and that a Request for Further Information was served with the Defence (Paragraph 12); there is a positive assertion that there was no malice (Paragraph 13). The claim in negligence was said to be bad in law and should be struck out (Paragraph 14). At Paragraph 15 the Defendant expressed confusion as to whether any claim under the Human Rights Act was being pursued; the Request related to this also. The Request has never been answered.[16]The Statement of Truth ("I believe that the facts stated in this Defence are true") was signed by Ms Sullivan. The pleading was served by the Treasury Solicitor and the pleading was drafted by Counsel.[17]Mr Gray’s application is that(1) Ms Sullivan be held in contempt of court,(2) she be investigated for perjury under Section 5 of the Perjury 1911 and perverting the course of justice and/or(3) that the Defence is struck out as an abuse of process pursuant to CPR 16.5. It is supported by a witness statement of Mr Gray dated 16 November 2009, together with various exhibits and his Skeleton Argument.[18]The Defendant’s application is that there should be summary judgement in respect of the claim for malicious prosecution, that the claim for negligence and breach of Human Rights should be struck out pursuant to CPR 3.4 and that Mr Gray should pay its costs. The application is supported by five pages of explanation, witness statements from Ms Sullivan, Mr Moorhouse, Mr King and Ms Li and Counsel’s outline Submissions, which deal with both sides’ applications.[19]Mr Gray sought to argue about I should pay no regard to much of Ms Sullivan’s witness statement because it, he argued, went beyond what the Defence stated. In my view that was a bad point because Ms Sullivan is entitled to say within reason whatever she thinks fit, given that she is facing a contempt charge. In any event, I formed the view that the vast bulk of what she said either simply confirmed or amplified by way of evidence what the Defence in substance said.[20]I am not going to reiterate separately all the detailed arguments which are set out in the Skeleton and Submissions, made in writing and orally. In dealing with the parties’ respective applications, I will necessarily refer to the primary arguments. Mr Gray’s Application[21]The application relating to Ms Sullivan’s alleged contempt largely if not entirely arises from the fact that she signed the Statement of Truth at the end of the Defence. Mr Gray’s main argument was that she was lying in the context of the Defence in Paragraph 11 that DJ Williams’ ruling was "wrong in law”. However, this is a bad point in my judgement because the Statement of Truth affirms the truth of "facts" stated in the Defence. An assertion that the magistrate’s ruling was "wrong in law" is not a “fact” stated in the Defence; it is an assertion of law made on behalf of the Defendant and obviously supported as arguable by Counsel and Solicitors concerned in producing the draft pleading.[22]In my view, contrary to the argument put forward by Mr Gray, it is and must be open to a defendant such as this faced with a claim for malicious prosecution or indeed in negligence to be able to argue that there was a reasonably arguable basis in fact and in law for the prosecution. It cannot be right to argue that simply, because a case is dismissed by a judge on the grounds either that there is no case to answer (for instance at the conclusion of the prosecution case) or that as a matter of law the charge is not made out, the prosecution must have been malicious.[23]In any event, I am wholly satisfied that it is and was reasonably and realistically arguable that the learned District Judge was wrong. It is unnecessary to me to find that he actually was wrong. I do not sit as a Court of Criminal Appeal or Divisional Court reviewing the validity of his decision. However any court considering a claim for malicious prosecution must consider whether there was any proper basis in fact or in law for the prosecution. It is said that this involves a "collateral attack on the findings" of DJ Williams and that somehow it is perjury even to assert by way of defence in a civil malicious prosecution case that the finding was wrong or arguably wrong. I do not consider that this statement in the Defence does or can amount to perjury, let alone contempt of court.[24]The whole basis of the argument before the District Judge related to whether or not, so far as the two assault charges were concerned, the two policemen said to have been assaulted were acting at the time " in the execution of [their] duty” within the meaning of Section 89(1) of the Police Act 1996; it was argued that they could not have been acting in the execution of their duty if a decision had already been made not to charge Mr. Gray with the harassment charge for which he had been arrested and detained. PC Carter said in evidence something which was not in his witness statement, which was that he had decided not to charge Mr. Gray with harassment before going to see him in his cell to tell him that he faced a further charge under Section 5 of the Public Order Act 1936. DJ Williams formed the view that pursuant to Section 37 of PACE that he should have been charged with the Section 5 offence and told that he was being detained in respect of that. Because that did not happen, he was being unlawfully detained and the two police officers would not therefore have been acting in the execution of their duty (which presumably is to act lawfully).[25]Without deciding the point, I consider that it is and always was realistically arguable that this reasoning was wrong. Section 37 of PACE states:
“(1) Where- (a) a person is arrested for an offence- (i) without a warrant; or (ii) under a warrant not endorse the bail, the custody officer at each police station where he is detained after his arrest shall determine whether he has before him sufficient evidence to charge the person with the offence for which he was arrested and may detain him at the police station in such period as is necessary to enable him to do so.”
The whole tenor of Section 37 it is that it is the "custody officer" who makes the requisite decisions and not the investigating officer. If that is the case, then the fact, if true, that the investigating officer had decided in his own mind, without telling anyone else, to abandon the basis upon which the accused was originally arrested and charge him with another offence is not material to the exercise which the custody officer has to do. In the absence of any evidence that the custody officer was aware of the change of mind, it could well be difficult to argue that Mr Gray was unlawfully detained from the moment that PC Carter had changed his mind. the custody officer at each police station where he is detained after his arrest shall determine whether he has before him sufficient evidence to charge the person with the offence for which he was arrested and may detain him at the police station in such period as is necessary to enable him to do so.”[26]It follows from the above that it can not have been perjury let alone contempt of court for Ms Sullivan to sign a statement of truth to a pleading which asserts that a particular ruling was wrong in law in circumstances when it was and remains eminently arguable that it was wrong. The fact that Counsel produced a reasoned skeleton argument on this topic before DJ Williams adds support to this.[27]Mr Gray then argues that Ms Sullivan has somehow deliberately and inaccurately misled everyone by signing a statement of truth in a Defence which asserts that he had been informed in writing in late June 2008 that he was banned from entering the Job Centre. This part of the Defence is simply explaining that there was evidence available to establish reasonable and probable cause for prosecution under Section 5 of the Public Order Act. The fact pleaded is true: Mr Gray did receive a letter from the Job Centre in June 2008 purporting to ban him from the building. In the same way that any owner or occupier of a building can refuse someone entry to their building, it appears that the Job Centre, for good or bad reason, did not want him on the premises. It simply can not be perjury let alone contempt to plead something which is true. The fact itself is of course not a justification for a charge under Section 5: it would not be a breach of Section 5 as such to disobey a ban. However it is clearly a material background fact in determining whether someone has committed a public order offence. The fact, as Mr Gray puts forward, that he had made complaints to the police beforehand that he was being harassed and assaulted by staff at the Job Centre does not make it perjury or contempt to plead the basic fact that he received a letter purporting to ban him from the building.[28]Mr Gray seeks to argue that, because Ms Sullivan makes no mention in the Defence about the camcorder footage taken by him, she has been guilty of perjury and content is a misguided one. The Statement of Truth only goes to the facts which are actually pleaded in the Defence. There is no requirement that all possibly relevant facts, for or against a party, must be pleaded. It would of course always be open to a litigant such as Mr Gray to plead in a Reply that the facts relating to what the camcorder footage showed did or did not demonstrate something relevant to his case.[29]Finally, it is argued that the Defence should be struck out because it does not comply with CPR 16.5. This states:
“(1) In his defence, the defendant must state- (a) which of the allegations in the particulars of claim he denies; (b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and (c) which allegations he admits. (a) which of the allegations in the particulars of claim he denies; (b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and (c) which allegations he admits. (2). Where the defendant denies the allegation- (a) he must state his reasons for doing so; and (b). if he intends to put forward a different version of events from (3). A defendant who- (a) fails to deal with an allegation; but (b) sets out in his defence the nature of his case in relation to the issue to which the allegation is relevant; shall be taken to require that allegation to be proved… (5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation.”
[30]In this context, he says that the Defence does not specifically deny the allegations of assault by police officers which he makes at Paragraphs 5 to 7 of the Particulars of Claim. It seems to me however that, even if that is right, this is not a ground for striking out the Defence. If these paragraphs are deemed to be admitted, then Mr Gray would not have to prove them. On any count, the CPS is not responsible as such for any (alleged) assaults on Mr Gray. However, in any event, in my view CPR 16.5(3) is engaged. It is clear from the Defence that the thrust of the case put forward by the CPS is that, as Paragraph 10 pleads, there was evidence available that it was Mr Gray who assaulted the two police officers and that it was sufficiently cogent to justify prosecution. That is the nature of the case and it necessarily relates to the issue as to whether it was Mr Gray who was assaulted or was the assaulter. It needs to be borne in mind that Mr Gray himself candidly accepts that he threw a cup and kicked out at one or more police officers; that could be an assault even if no physical contact was made. Technically, if he assaulted the police officers first but was then subjected to excessive force by the police officers in restraining him, there could still be a charge of assault against him; what followed might be a mitigation but would not in itself provide a defence.[31]In any event and in the light of all the above it would be wholly inappropriate to strike out the Defence. Mr Gray’s application is dismissed. On any analysis, it has no merit. The Defendant’s Application[32]I will deal first with the claims under the Human Rights Act and for negligence. It is clear from the Particulars of Claim that there is no claim under the Human Rights Act in relation to the events of 2008 or the actual prosecution itself. The only complaint is made in Paragraph 12 of the Particulars of Claim and relates to the alleged failure to respond to the pre-action protocol letter sent by Mr Gray on 14 July 2009. I am by no means convinced and, indeed, Mr Gray put forward no certainly no coherent arguments, that any pre-action protocol applied to this sort of case and, even if it did, the failure to respond by a public authority gave rise to a cause of action under the Human Rights Act. I can not see any intellectual or legal basis why any such cause of action could or should arise. The simplest available remedy for a potential litigant who is faced with a refusal by the potential defendant to respond to letters of claim is to issue proceedings, which is exactly what Mr Gray has done.[33]As for the case based in negligence, I am satisfied that there is no arguable case that Mr Gray has a cause of action against the defendant for negligence. In Elguzouli-Daf v Commissioner of Police of the Metropolis [1994] EWCA Civ 4, the Court of Appeal emphatically rejected the existence of a duty of care in the current circumstances: “While Mr Richards, who appeared for the CPS, disputed that even the element of foreseeability of harm is established, I would be prepared to accept that the plaintiffs can satisfy this requirement. For my part the matter turns on a combination of the element of proximity and the question whether it is fair, just and reasonable that the law should impose a duty of care. It does not seem to me that these considerations can sensibly be considered separately in this case: inevitably they shade into each other. Recognizing that individualized justice to private individuals, or trading companies, who are aggrieved by careless decisions of CPS lawyers, militate in favour of the recognition of a duty of care, I conclude that there are compelling considerations, rooted in the welfare of the whole community, which outweigh the dictates of individualized justice. I would rule that there is no duty of care owed by the CPS to those it prosecutes. In so ruling I have considered whether a distinction between operational and discretionary lapses, with potential liability in the former but not the latter, should be made. Whatever the merit of such a distinction in other areas of the law, I would reject it in regard to the CPS as impractical, unworkable and not capable of avoiding the adverse consequences for the CPS on which I have rested my decision. Subject to one qualification, my conclusion that there is no duty of care owed by the CPS to those it prosecutes is intended to be of general application. The qualification is that there may be cases, of which Welsh was an example, where the CPS assumes by conduct a responsibility to a particular defendant: see Spring v. Guardian Assurance PLC[1994] 3 WLR 354, per Lord Goff of Chieveley, at 368A-369A. And it is trite law that such an assumption of responsibility may generate legal duties. But that qualification has no relevance to the cases before us. I have rested my judgment on the absence of a duty of care on the part of the CPS. If my conclusion is wrong, I would for the reasons I have given in dealing with the question whether a duty of care exists rule that the CPS is immune from liability in negligence. Initially, I was concerned that such an important decision should be taken in the context of the constraints of a striking out application. Given that the parallel case of Hill was decided by the House of Lords on a striking out application, and that one is dealing with a pure question of law, I was ultimately satisfied that it is such a plain and obvious case that it was right to strike out the statements of claim in both cases.” (per Lord Justice Steyn) This judgement was agreed by Lord Justice Rose and Lord Justice Millett gave a strong supporting judgement. There is in any event no good policy reason why there should be no duty of care; if Mr Gray was right and there was generally a duty of care on the prosecuting authorities towards all people who were prosecuted, there would be a potential claim against those authorities every time a person was acquitted of a criminal charge or otherwise had the charges dismissed or withdrawn. If there was such a duty of care, the prosecuting authorities would be acting under a major constraint and there would be a real risk that people who should be prosecuted would not be.[34]It can not be said, and to be fair to Mr Gray is not said by him, that the specific "assumed responsibility" exception applies. It follows that I am bound by this authority and Mr Gray’s case in negligence is unsustainable. It should therefore be struck out in the same way as happened in the Elguzouli-Daf case.[35]As for the claim for malicious prosecution, it is clear that this matter must relate to the two assault charges. The whole thrust of Mr Gray’s case is that the CPS in general and Ms Sullivan in particular should not have initiated and pursued the prosecution of these offences in circumstances in which it and she should have known that, as the harassment charge was in the mind of PC Carter not to be pursued, Mr Gray was being unlawfully detained and therefore no assault on a police officer in the execution of his duty could be effected in those circumstances.[36]In my judgement, the claim for malicious prosecution is simply unsustainable. There are many reasons for this, the more important ones of which are:(a) The burden of proof will always be on the Claimant, Mr Gray, to show that the Defendant lacked reasonable and probable cause and acted maliciously.(b) From the evidence submitted, and from the lack of evidence and particulars provided by Mr Gray, there is no evidence of malice on the part of the Defendant between August 2008 and May 2009. It matters not on this issue how well or badly the Defendant behaved thereafter because the prosecution was over. I certainly have seen nothing in any event which suggests that it acted maliciously thereafter.(c) There is the Defendant’s evidence (which is not challenged by any evidence as such from Mr Gray) to the effect that there was always sufficient evidence to justify prosecution on the two assault charges. That does not mean of course that Mr Gray did not have an arguable defence or that he was necessarily guilty. He would always have been in a position if he had had to give evidence to point to what he says happened that evening.(d) For reasons given above, I do not see how the Defendant can be criticised for failing to anticipate an argument apparently raised by the District Judge in relation to Section 37 of PACE. Even if the Defendant had anticipated it, for the reasons advanced by its Counsel before the District Judge, it was eminently arguable that, at the time the alleged assaults occurred, Mr Gray was in lawful custody still in relation to the harassment charge for which he had been arrested.(e) There is no realistic prospect of establishing that in some way the Defendant or individuals within the Defendant should have appreciated that PC Carter would give evidence as he eventually did to the effect that, when he went into Mr Gray’s cell to charge him with the Public Order offence, he had "decided" that Mr Gray should not be charged with the harassment offence. There would be no obvious reason why they should have appreciated this. PC Carter’s written evidence, which is actually accepted by Mr Gray, was to the effect that he told Mr Gray that there would be a "further" charge; in context that must have been "further" to the harassment charge for which Mr Gray had been arrested. The fact that at some stage later in the evening Mr Gray was formally charged with the three offences and not with a harassment offence does not and would not obviously lead prosecutors to an enquiry which would have led to a conclusion that at the time of the two alleged assaults Mr Gray was unlawfully in custody.[37]I accept that the Court should be slow to strike out cases, and the current type of case might call for a jury trial (see Section 69 of the Senior Court Act). However, it seems to me that it is better for all concerned if a case which has no realistic or arguable prospect of success is struck out before too much time and cost has been wasted by both parties. Indeed, in the interests of the overriding objective, the case should be struck out. Conclusion and Decision[38]For the reasons given above, Mr Gray’s applications are dismissed. The Defendant’s applications are granted and the Claimant’s claim is struck out. I will hear the parties on costs and any other matters when this judgement is formally handed down. In accordance with usual practice, I will circulate to the parties a draft of this judgement before handing down.