Howarth v Gwent Constabulary & Anor [2011] EWHC 2836 (QB)

Case No HQ11X01438

[2011] EWHC 2836 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 1 November 2011

Before

THE HONOURABLE MR JUSTICE EADY

Between

TREVOR HOWARTHClaimant

THE CHIEF CONSTABLE OF GWENT CONSTABULARYDefendants

(2) GWENT POLICE AUTHORITYDefendant

Heather Williams QC and Nick Stanage (instructed by Squire, Sanders & Dempsey (UK) LLP) for Claimant

Jason Beer QC and Andrew Waters (instructed by Dolmans Solicitors) for Defendants

Hearing Hearing dates: 4 – 17 October 2011

Judgment

Mr Justice Eady :

The background to the claim

[1]The Claimant in these proceedings, Mr Trevor Howarth, seeks damages against the Chief Constable of Gwent Constabulary and/or against the Gwent Police Authority for alleged malicious prosecution and misfeasance in public office. Mr Howarth had been charged on 17 May 2007 with perverting the course of justice, an offence in respect of which he was acquitted on 19 March 2008 following trial at the Bristol Crown Court. The allegations he makes are principally against Mr Michael Hayward, who was a detective constable with the Financial Crimes Unit of the Gwent Police until 1 September 2006, when he ceased to be a police officer but was still employed in the same department by the Gwent Police Authority. Accordingly, in respect of any wrongdoing the Chief Constable would be liable in accordance with s.88(1) of the Police Act 1996 until the changeover date. Any misconduct thereafter would be attributable to the Gwent Police Authority on the basis of vicarious liability. The other police officer primarily involved in the relevant investigations was Detective Sergeant Lewis, who remained in the police force until 2 September 2011, when he retired.

[2]It is right to record that Mr Howarth was, and following his trial remains, a man of good character. Although without any legal qualifications, he had been employed as practice manager with a small Manchester firm of solicitors, Freeman & Co (of which the principal was Mr Nicholas Freeman), from January 1999 until May 2008 (i.e. about two months after his acquittal). The prosecution of Mr Howarth related to work undertaken in the course of his employment in respect of a client, Mr Jeremy Lefton, who had faced prosecution for speeding and for failing to furnish requisite information, as to the identity of the person driving a motor vehicle at a certain time, contrary to s.172(3) of the Road Traffic Act 1988. In the event, he faced only the latter charge, of which he was acquitted at the Abergavenny Magistrates’ Court on 19 April 2006. He was represented by counsel instructed by Freeman & Co, Mr Robert McMaster (against whom no criticism can possibly be levelled). Mr Lefton was acquitted following what is now accepted as false evidence to the effect that he had no knowledge of a Notice of Intended Prosecution (“NIP”) served at his parents’ address and dated 2 June 2005. He was supported by evidence from his mother, Mrs Janet Lefton, who also confirmed on oath that the NIP had not been received. Later, the mother and son were both charged with perjury and perverting the course of justice in respect of their false evidence. His father, Mr Harold Lefton, was also charged with perverting the course of justice. All members of the family pleaded guilty at the Newport Crown Court and were each sentenced, on 12 April 2007, to three months imprisonment.

[3]On that occasion, the police provided the sentencing Judge with a letter (of the kind often referred to as a “text”), which was signed by Detective Chief Inspector Dodd and referred to the Leftons as having “all admitted their wrongdoing in full”. It went on to state that they had provided written witness statements and indicated their willingness to give evidence against others who were to be “prosecuted in this investigation”. This was obviously relied on in the hope that their sentences would be correspondingly reduced.

[4]It was just over a month later, as I have indicated, that Mr Howarth was himself charged with perverting the course of justice in relation to his conduct of Mr Jeremy Lefton’s case and, in particular, advice which he was alleged to have given. The decision to charge was taken by Mr Grenville Barker of the CPS, who gave evidence in the course of the trial before me. That decision was the culmination of prolonged and careful consideration not only by him but also by leading and junior counsel. Leading counsel drafted the charge and settled the indictment. They too gave evidence.

[5]Thereafter, Mr Howarth suffered considerable stress and was under medical care and treatment. He took sick leave until January 2008, being effectively incapable of carrying out his normal duties. He later found other employment.

[6]Matters had come to light following the original acquittal of Mr Jeremy Lefton before the Abergavenny magistrates in April 2006. An application had been made for costs and, for that purpose, some of the documents contained in his solicitor’s file were submitted to the Magistrates’ Court for assessment. The suspicions of court officials were aroused when they were inspecting these documents and discovered material which appeared flatly to contradict the defence put forward by Mr Lefton and his mother. There was correspondence passing between Freeman & Co and the Leftons which expressly referred to the NIP. There was also an attendance note, dated 10 June 2005, in which Mr Nicholas Freeman himself made reference to the NIP and suggested that the Leftons had received it and informed the solicitors. It will be necessary to go into these matters more fully in due course, when considering the evidence, but for the moment all I need say is that Mr Adrian Bates, the official who had examined the file at the Magistrates’ Court, submitted it in August 2006 to the police. He had a copy of the NIP which had been produced by the prosecution at Jeremy Lefton’s trial. He confirmed in a statement dated 21 August of that year that Jeremy Lefton and his mother had both given evidence to the effect that the original NIP had not been received. This began the train of enquiries which led to the prosecutions to which I have referred.

The legal principles

[7]Before turning to the evidence in any detail, it is necessary to have in mind throughout the legal principles governing the causes of action relied upon and, in particular, the hurdles which a claimant has to overcome in establishing the tort of malicious prosecution. He must prove inter alia that the relevant prosecutor had no “reasonable and probable cause” for the prosecution in question. The difficulties confronting such a claimant are underlined in a number of well known authorities. In the present case, the prosecution was based partly upon documents found in the files of Freeman & Co which called for explanation and partly also upon evidence from the Leftons. Furthermore, it is clear that, throughout, the police sought guidance on the approach to be adopted, and upon the implications of the evidence, from the Crown Prosecution Service and in due course also from counsel. It follows that Mr Howarth will need to establish, on a balance of probabilities, that despite this advice the relevant police officer(s) did not believe in the prosecution brought against him or that for other reasons the evidence relied upon did not give rise to “reasonable and probable cause”.

[8]The leading authority of Martin v Watson

[1996] AC 74

shows that a claimant founding himself upon malicious prosecution must establish four elements: i) the proceedings must have been instituted or continued by the relevant defendant; ii) the defendant must have acted without “reasonable and probable cause”; iii) he must have acted maliciously; iv) the proceedings must have been unsuccessful, in the sense that they terminated in favour of the claimant. The only elements in issue in this case are the second and third of those; that is to say, “reasonable and probable cause” and malice. It is not disputed that the Claimant would be able to establish damage. It is acknowledged that the charge brought against him was defamatory, put him at risk of imprisonment and led in due course to financial loss.

[9]It is also accepted that it was one of the Gwent police officers who charged Mr Howarth with perverting the course of justice and that, on that basis, the Defendants are properly sued – notwithstanding the significant role played throughout by independent legal advisers: see e.g. Alford v Chief Constable of Cambridgeshire

[2009] EWCA Civ 100

at [42].

[10]It is well established that the fundamental element is the absence of “reasonable and probable cause”. It will not suffice to prove malice alone. My attention was drawn to the words of Tindal CJ in Williams v Taylor (1829) 6 Bing 183, at 186:

“Malice alone is not sufficient, because a person actuated by the plainest malice may none the less have a justifiable reason for prosecution.”

[11]Albeit somewhat archaic, the phrase “reasonable and probable cause” is well understood. Reference is often made to the judgment of Hawkins J in Hicks v Faulkner

(1878) 8 QBD 167

, at 171, where he gave the following definition:

“ … 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.”

That exposition of the law was approved in Herniman v Smith

[1938] AC 305

by Lord Atkin.

[12]The question of “reasonable and probable cause” itself breaks down into two issues which have to be considered in the light of the evidence before the court. The first is generally described as being a subjective question; namely, whether the prosecutor had no honest belief in the relevant charge. The second is the objective question of whether the circumstances were such that they would lead an ordinary and prudent man to believe in the charge. Sometimes, it is possible to infer the absence of an honest belief from a lack of “reasonable and probable cause”; but not the other way about. Malice cannot of itself lead to an inference that “reasonable and probable cause” was lacking: Glinski v McIver

[1962] AC 726

, 744.

[13]There are authorities relevant to each of these primary issues. As to the subjective question, it has long been recognised that the beliefs of the prosecutor are relevant to take into account on the issue of “reasonable and probable cause”. It is necessary for a claimant to prove that the relevant person or persons did not actually believe in the charge laid against him. In Glinski v McIver, cited above, at p.770, Lord Devlin made the following observations:

“At first sight it is undoubtedly an attractive proposition that a police officer should not be expected to hold an opinion about the guilt and innocence of those he prosecutes; a prosecuting counsel is not expected to hold such an opinion any more than the magistrate who commits for trial. … It derives, I think, a lot of its attraction from the ambiguous use of the word ‘guilt’. If the word is used without qualification, I entirely agree, for the reasons I have given, that a police officer should not be expected to hold an opinion. But when the question to which his mind ought to be directed is no more than the strength of his case, I think it would be unsatisfactory and impracticable to attempt to distinguish between facts proved directly and facts inferred, or (for inference depends on opinion), between fact and opinion generally. Opinion enters into everything from the beginning. The value of a statement taken from a witness depends, until it is tested in court, on the officer’s opinion of the witness’s honesty, accuracy and power of observation.”

It is thus still necessary to enquire into the state of the prosecutor’s mind as a distinct issue from the objective question of whether there is overall “reasonable and probable cause”.

[14]It is important to emphasise, however, that the question is not whether the prosecutor actually believes in the suspect’s guilt, but rather whether he believes that a charge is warranted: see e.g. Tempest v Snowden

[1952] 1 KB 130

, 135; Glinski v McIver, cited above, at 758 and 766-767. In a more recent case, the Court of Appeal posed the question whether there was “a proper case to lay before the court”: Thacker v Crown Prosecution Service, The Times, 29 December 1997.

[15]It is to be noted also that in Glinski v McIver, at 744, Viscount Simonds warned that a judge should be “doubly careful not to leave the question of honest belief to the jury unless there is affirmative evidence of the want of it”: see also Lister v Perryman (1870) LR 4 HL 521.

[16]I turn to consider the principles of law specifically concerning the objective test. The question of “reasonable and probable cause” is not to be confused with the issue of whether the material before the relevant prosecutor would be sufficient, in law, to secure a conviction. Once again, what matters is whether it is sufficient to make out a prima facie case and to warrant the preferring of a criminal charge, even though it may not be enough in itself to justify a finding of guilt: see e.g. Dawson v Vasanau (1863) 11 WR 516. It is necessary to consider whether there is adequate material to place before a jury, rather than to attempt to predict what the jury will conclude.

[17]It follows that it is not enough for a claimant to point to inconsistencies in the evidence, which might require explanation or clarification. That may be true in a majority of prosecution cases. It is not for police officers to attempt a mini-trial of the issues at the investigative stage. My attention was drawn, in this context, to the recent decision of the Court of Appeal in Moulton v Chief Constable of West Midlands Police

[2010] EWCA Civ 524

, where Smith LJ said at [26]:

“[It was submitted for the appellant that] an objective examination of the evidence, if scrupulously careful, would have revealed a number of inconsistencies within the evidence and a number of matters which required clarification. But such examination would not in my view have led a conscientious police officer to any view other than that the appellant was probably guilty. I would hold that the judge was right to hold that there was reasonable and probable cause to commence the prosecution.”

I must, however, recall that it is not essential in every case to go so far as to establish that a prosecutor believes that a suspect will probably be convicted: Dawson v Vasanau, cited above, at 518. As I have already indicated, the question is whether there is a case fit to be placed before the court.

[18]An important point in the present case is how far it is appropriate for a prosecutor to investigate the merits of a possible defence that has been, or could possibly be, raised by way of explaining the prosecution evidence relied upon. I refer again to the leading case of Glinski v McIver, where Viscount Simonds dealt with the point at p.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.”

It was again made clear in Coudrat v Commissioners of HMRC

[2005] EWCA Civ 616

, at [42], that it is not necessary to test the full strength of a possible defence. “An officer cannot be expected to investigate the truth of every assertion made by the suspect in interview”: per Smith LJ. These are matters properly to be left for resolution at trial.

[19]A further important, and indeed potentially critical, factor which arises in this case is the role which legal advice and guidance played in the decision-making process. A leading judgment in this context is that of Bayley J in Ravenga v Mackintosh (1824) 2 B & C 693, 697, where he pointed out, albeit obiter, that:

“ … if a party lays all the facts of his case fairly before counsel, and acts bona fide on the opinion given by that counsel (however erroneous that opinion may be) he is not liable to an action.”

This part of the judgment has been approved in the House of Lords in Glinski v McIver, cited above, at pp.697 and 759. Naturally, whether the relevant facts have been “fairly” laid before counsel may be, as here, the subject of dispute. If the advice relied upon by the prosecutor turns out to have been given on a misapprehension of the underlying facts, for whatever reason, plainly little weight can be attached to it.

[20]There may even be circumstances in which the advice of counsel will be conclusive evidence on the issue of “reasonable and probable cause”, but each case must be considered on its own facts: see e.g. the remarks of Ormerod LJ in Abbott v Refuge Assurance Co

[1962] 1 QB 432

, at 448 and 450, and those of Stephenson LJ in Riches v DPP

[1973] 1WLR 1019

, 1025. Obviously, the time by reference to which the issue has to be decided is when the prosecution was set in train. It is accordingly of no consequence that any legal opinion relied upon by the prosecutor is subsequently shown to have been in error. On the other hand, it is clearly right that if there is otherwise no evidence to support “reasonable and probable cause”, that lacuna cannot be plugged by the mere fact that a lawyer or lawyers came to a mistaken view to the contrary: see Abbott at 456, per Upjohn LJ (citing the 11th edn of Clerk & Lindsell on Torts (1954) at p.867).

[21]It is always necessary to pay close attention to the facts of the individual case, but the general principle was simply stated by Viscount Simonds in Glinski at 697:

“It appears to me that, just as the prosecutor is justified in acting on information about facts given him by reliable witnesses, so he may accept advice upon the law given him by a competent lawyer. That is the course that a reasonable man would take and, if so, the so-called objective test is satisfied.”

In this case it is submitted by Mr Beer QC that the effect of the legal advice received from the CPS, and ultimately also from leading and junior counsel, was to take the relevant officers beyond the minimum necessary to pass the “reasonable and probable” test, since they were of opinion that there was a realistic prospect of obtaining a conviction. I was asked in this context to have in mind the remarks of Smith LJ in Coudrat v HMRC

[2005] EWCA Civ 616

at [44], where she reaffirmed the minimum hurdle as being only to establish “prima facie evidence”.

[22]Ms Williams QC, on the other hand, takes the unusual stance that the legal advice had virtually no impact on the mind of “the prosecutor”, in the sense that the officers were not interested in it, and to an extent disagreed with it. They were pursuing their own agenda and had no honest belief in the case against Mr Howarth despite the legal advice.

[23]I turn now from the important issue of “reasonable and probable cause” to the additional ingredient of malice. This requires it to be shown, to the usual civil standard, that the defendant(s) intended to subvert the legal process for some extraneous and improper purpose. It will often be the case that a claimant will have to rely, for this purpose, upon an inference; that is to say, that the circumstances were such that the decision to prosecute is only explicable by the attribution of an improper motive. That is quite legitimate, but there must be some evidence from which such an inference can fairly be drawn: otherwise, the case may be struck out or withdrawn from the jury.

[24]Here, the claim is that the officers held no genuine belief that Mr Howarth had committed the crime in question, despite the legal advice received, but rather pursued the prosecution with the dominant motive of wishing to damage Freeman & Co. The suggestion is made that they wished to punish the firm for having successfully advanced defences on a number of occasions, in relation to driving offences, that were perceived as “technical”. The firm is said to have acquired a certain notoriety through media coverage to this effect. That is a question of fact which I shall have to consider in the light of the evidence, but the essential question remains whether the officers believed there to be a genuine case to be made against Mr Howarth. If they did, a finding of malice could hardly be made out on the basis, for example, that they also disliked him personally, or treated him with disdain, or wanted to see Freeman & Co exposed and humiliated. As Lord Diplock observed in Horrocks v Lowe

[1975] AC 135

at 151, “it is difficult to hate the sin but love the sinner”. Personal feelings should not, therefore, be allowed to become a distraction and divert attention from the central issue of whether the legal process was being abused for an improper purpose.

[25]Ms Williams for Mr Howarth submits that the court should approach the subjective, rather than the objective, question first. The basis of this argument, as I understand it, is that the court needs first to make a judgment on what the officers believed at the material time(s) before a conclusion is reached on whether there were, objectively judged, reasonable grounds to prosecute. She summarised this argument, in closing, by pointing to Mr Howarth’s primary case; namely, that the officers did not at the time honestly believe in the credibility of the Leftons’ evidence which incriminated him. She says that this should, therefore, be the focus of the court’s attention. The critical issue is what “the prosecutor” honestly believed. Ms Williams argues, therefore, that it is a distraction to focus on documents which a hypothetical reasonable person might have thought gave rise to “reasonable and probable cause”.

[26]Mr Beer has argued that one cannot ignore what a reasonable person would think of the available evidence in coming to a decision as to what the particular officers believed. He accepts that if, here, Mr Hayward or Mr Lewis did not in fact honestly believe that there was a case worthy to be placed before a criminal court, then the objective question would not fall to be considered. Mr Howarth would have established the absence of “reasonable and probable cause”. But that does not mean that the likely reaction of a reasonable onlooker should be put out of mind altogether.

[27]He therefore proposes that the court should take what he calls a more “nuanced” approach: i) ascertain the evidential material known to the officers at the time of charging on 17 May 2007; ii) consider that evidence and what it would convey (if true) to a reasonable observer; iii) decide in the light of those matters whether Mr Hayward and Mr Lewis genuinely believed that there was a case fit to be placed before the court as at 17 May 2007; iv) if they both did have such a belief, then consider whether, objectively judged, there was indeed such a case. That seems a reasonable approach to take in the light of the authorities, as a matter of analysis, but to go through those steps seriatim in the course of this judgment would become unnecessarily repetitive. Nonetheless, I bear in mind that these are the tasks that need to be performed in determining the subjective and (if they arise) the objective questions on malicious prosecution.

[28]It is not clear to what extent the claim of misfeasance in public office adds anything of substance, but the principles can be derived from the decision of the House of Lords in Three Rivers DC v Bank of England (No 3)

[2003] 2 AC 1

. It gives rise to four principal questions: i) Was the conduct complained of that of public officers, exercising power in that capacity? ii) Did the officers act knowingly or recklessly beyond their powers? iii) Did they thereby cause damage to the claimant? iv) Did they know that the act(s) in question probably would cause such damage or were they reckless in that regard? It was established in the same case that, in this context, the concept of recklessness is to be confined to so-called subjective recklessness; that is to say, did the officer in question realise that he could be exceeding his powers but, nonetheless, decided to go ahead with the relevant act or course of conduct?

[29]It is of interest that in Darker v Chief Constable of West Midlands Police

[2001] 1 AC 435

the House of Lords considered the relationship between the torts of malicious prosecution and misfeasance in public office. An issue that was touched upon, but not finally decided, was whether there might be a legitimate claim based on misfeasance notwithstanding the existence of “reasonable and probable cause”. There is no logical reason why this should necessarily be a bar. It will, I apprehend, depend upon a close examination of the facts. I shall proceed on the basis that the misfeasance criteria could be fulfilled, notwithstanding “reasonable and probable cause” and the absence of malice, but this is a situation that is unlikely to arise very often. I shall answer the question in due course, if it arises, following consideration of the evidence.

A consideration of the facts leading to the prosecution

[30]I must now turn to address the factual background giving rise to these claims. Mr Howarth received a telephone call from Janet Lefton on 6 June 2005. She was seeking the help of Freeman & Co in connection with two NIPs served pursuant to s.172 of the Road Traffic Act 1988. They were dated respectively 1 and 2 June of that year and each required the registered keeper to provide the name and address of the person who had been driving at the time of the offence specified therein.

[31]It seems that a vehicle was spotted by a speed camera travelling at an excessive speed on the A449 on 21 May and the notice relating to that incident was addressed to Harold Lefton as the registered keeper of the vehicle. The second notice was addressed to his son, Jeremy Lefton, being the registered keeper of a Volkswagen Polo vehicle, which had been detected as travelling at an excessive speed on the same road on 23 May. As a matter of fact, on both occasions Jeremy had been driving the vehicle. Accordingly, he was liable to the imposition of six penalty points on his licence and, being a recent holder of a driving licence, he was also at risk of disqualification. Ultimately, after telling various lies about the matter, Jeremy Lefton did acknowledge in the course of a police interview on 20 February 2007 that he had been driving on 21 May 2005. Also, on 7 March 2008, during Mr Howarth’s criminal trial, Mrs Janet Lefton admitted that she had known shortly after the events in question that her son had been driving both on 21 and 23 May 2005. It is thus tolerably clear that the family’s lies, and in due course their attempts to pervert the course of justice, came about as a result of their wish to avoid Jeremy Lefton’s disqualification.

[32]Returning, however, to the first conversation between Mr Howarth and Mrs Lefton on 6 June 2005, I record that there is a dispute between the participants as to exactly what was said. Mr Howarth’s account is that Mrs Lefton told him at that stage that she was unaware who was driving on either occasion. She told police later that she had explained to him, during this first conversation, that her husband and son had been sharing the driving on 21 May but that her son had been driving two days later.

[33]There was also a letter of instruction from Mrs Lefton, dated 6 June 2005, which made no admission that her son was driving on either occasion. To that extent, at least, it is consistent with Mr Howarth’s account.

[34]The two NIPs, which had obviously been served within the relevant 14 day period following the alleged offences, were enclosed with the letter of instruction to which I have referred. The papers were submitted to Mr Freeman for his consideration and his preliminary advice is to be found in two attendance notes, which are dated 10 June 2005. One relates to Mr Harold Lefton and was expressed in these terms:

“NF perusing Notice Of Intended Prosecution dated 1st June 2005 in relation to an allegation on the 21st May 2005. The Notice Of Intended Prosecution appears to be in order and the letter suggests that the driver was either the defendant or his son Jeremy. Jeremy has been driving for 18 months and as there is another Notice Of Intended Prosecution which I will deal with in a moment he of course needs to be aware of the potential ramifications of 6 penalty points if his son was to accept culpability. The father could seek to argue reasonable diligence and he could write a letter providing his details and his son’s details and saying that they are not sure but as the registered keeper I anticipate that they will simply issue a notice against him. The defendant can be advised of all the legal defences and really it is a matter for him for which way he decides to go.”

The second relates to Mr Jeremy Lefton and was even shorter:

“NF perusing Notice Of Intended Prosecution dated 2nd June 2005. This is in relation to an incident on the 23rd May 2005. Again the Notice Of Intended Prosecution appears to be in order and I make the same comments in relation to this one as I make in relation to the one relating to Harold Lefton. The defendant should be advised of the various potential defences and he and his father then need to take a view.”

[35]In the meantime, four letters dated 7 June 2005 had been sent out. They contained nothing about the allegations made but were of a formal nature, dealing with money laundering issues and setting out the terms on which the firm did business. Two were sent to Mr Jeremy Lefton and two to his father. Their potential significance for the present litigation is that each of the four letters was headed “Re: Notice of Intended Prosecution”. Copies of the two letters sent to Jeremy Lefton were placed on his file and in due course submitted to the Magistrates’ Court. This fact tended to suggest both to Mr Bates, on his examination of the file for costs purposes in May 2006, and to the police officers when it came to their attention, that his solicitor must have been fully aware that the NIPs had been served in time, and had that knowledge when Jeremy Lefton and his mother gave perjured evidence before the Abergavenny magistrates in April 2006. (Actually, Mr Howarth did not know that Janet Lefton would be giving evidence. He had not prepared a proof for her. The decision to call her was made at court by Mr McMaster after a brief discussion with her.)

[36]On 17 June 2005 a further telephone conversation took place between Mr Howarth and Janet Lefton. Mr Howarth says that the purpose of the telephone call was to inform Mrs Lefton of the terms of Mr Freeman’s advice as set out in the two attendance notes of 10 June. Telephone records show that there were two calls from Freeman & Co to Janet Lefton’s mobile, timed respectively at 11.24 and 11.27 a.m.

[37]At 11.32 a.m. on the same day Janet Lefton sent herself an email message via her Blackberry device. It was her case that this was to remind herself of the advice she had just received on the telephone from Mr Howarth. The message was in these terms:

“Tcf trevor howarth. When get reminder give him a call. Are busy and behind. Only way they know we get notice is if we confirm it to them Then get h to write to police saying received notice of prosecution, unsure who was driving. In order to find out can they supply copy of photographic evidence.”

There was again a dispute between Mrs Lefton and Mr Howarth as to what passed between them during the telephone call and as to the nature of any advice given. In addressing that dispute, one can set alongside her Blackberry message the terms of Mr Freeman’s attendance notes of 10 June since, on Mr Howarth’s account, it was that advice he was intending to convey.

[38]It seems clear that the thrust of Mrs Lefton’s summary was to the following effect: i) The Leftons should do nothing about the NIPs at the moment, but simply await a reminder which would be sent to them in due course. ii) The relevant authorities at the Safety Camera Unit were “busy and behind” with their work. iii) The only way they would know that the Leftons had been effectively served with the NIPs would be if they were to “confirm” receipt. iv) Once the reminder was received, Mr Harold Lefton was being advised to write to the police saying that they had received the notice of prosecution (or, perhaps, the reminder), but that they were unsure who was driving on either of the relevant occasions. v) In order to assist the Leftons in establishing who was driving, a request should be made for photographic evidence.

[39]Up to that point, on Mr Howarth’s evidence, the instructions he had received were to the effect that his clients remained in ignorance as to who had been driving at the relevant times on 21 and 23 May 2005. To that extent, therefore, Mrs Lefton’s brief summary would be consistent with his understanding. On the other hand, Mr Howarth denies that he or Mr Freeman gave any advice or encouragement to ignore the NIPs received.

[40]Mr Freeman’s distinctly unhelpful attendance notes of 10 June gave little positive guidance as to the course the Leftons should take: it was apparently left to Mr Howarth to determine, and to pass on to the Leftons, what “the various potential defences” were in the light of the fact that each of the NIPs appeared “to be in order”. The attendance note in respect of Harold Lefton was a little more informative, in that it included the possible argument of “reasonable diligence” and the suggestion that they should write a letter to the effect that they were not sure who had been driving.

[41]It is difficult to see why, if he was merely conveying the “advice” of Mr Freeman, Mr Howarth should tell Mrs Lefton to ignore the NIPs but, on the other hand, it is also unclear as to why Mrs Lefton should, within a few minutes of the telephone call, seek to invent “advice” to the effect that the Safety Camera Unit in Cardiff was very busy and that they should merely wait for a reminder. Mr Beer points also to the fact that the file itself was noted “Hold. Await instructions”. It is at all events clear that, at this stage, the documents do not disclose any overt suggestion that service of the NIPs should be denied.

[42]On 5 July a reminder was indeed sent in respect of the 23 May incident. It seems that on 7 July 2005 Mr Harold Lefton submitted a draft letter, intended for the Safety Camera Unit, for Mr Howarth’s consideration. It appears that this was sent as part of an email of that date. The draft letter was in these terms:

“Dear Sirs, Thank you for your letter dated ( ). I was somewhat surprised to have received the reminder letter as this is the first correspondence I have received. The incident happened some considerable time ago. Please could you forward full details and/or photographs taken at the time as I have no recollection of the incident or in fact who was driving the vehicle at the time. Yours sincerely Jeremy Lefton”

Yours sincerely Jeremy Lefton”

Yours sincerely

[43]Such a letter, if sent, would be dishonest in two respects. First, the “reminder” could hardly have been the “first correspondence I have received”, since everyone knew that the NIPs had been served in time and received by the Leftons at the parental address. Secondly, the Lefton family knew perfectly well that the son had been driving on both occasions.

[44]The text of the email sent to Mr Howarth and which contained, or had attached to it, the draft letter was in these terms:

“Dear Trevor, You spoke to my wife Janet regarding the speeding notices received by Jeremy and myself. Your advice was not to respond to the notices and await the reminder. Jeremy has now received his, should he respond to it and if so is the draft letter ok, can you suggest how it should be improved/changed. Regards Harold Lefton”

Regards Harold Lefton”

Regards

[45]There is no doubt that, shortly thereafter, the draft letter at least was placed in front of Mr Howarth, since he scribbled a note on it. There is some doubt, on the other hand, whether this was placed before him as a separate document or (as it now appears in the evidence) as the lower half of a page which contained the text of the email itself at the top. This was a point raised by Mr Howarth for the first time during his criminal trial in March 2008. The copy he actually wrote upon has in the bottom left hand corner “08/07/2005”. This would appear to suggest that it was on that date that someone in Freeman & Co’s office (almost certainly Denise Hennessey) printed out a single sheet containing both the email from Harold Lefton (at the top) and the draft letter for Mr Howarth’s consideration (on the lower half of the page). In my judgment, that accords with the balance of probability.

[46]According to the evidence, Mr Harold Lefton, having sent the draft for consideration, tried unsuccessfully to contact Mr Howarth by telephone – eventually managing to do so on 14 July. He wanted to hear the reaction. The call lasted on this occasion for one minute and five seconds. It is accepted by Mr Howarth that the telephone call did take place on 14 July 2005.

[47]Mr Howarth’s case is that it was during this conversation that the draft letter was placed in front of him. He did not spot that it was effectively denying receipt of the NIP. He scribbled on it purely to deal with the “due diligence” point and did not consider it in any detail. This is a reference to s.172(4) of the 1988 Act, which provides that a person shall not be guilty of an offence of failing to furnish information as to the identity of the driver if he did not know, and could not “with reasonable diligence” have ascertained, who the driver of the vehicle was. Mr Howarth’s scribble was intended to convey that further information should be given:

“also vehicle driven by father and mother and 1 other”

. Mr Howarth says that he has no recollection of seeing the text of Mr Lefton’s email. Had he done so, one would expect him (a) to deny that his advice had been to ignore the notices and (b) to point out that the claim in the draft letter not to have received the NIPs would have been false. It was dealt with in a remarkably slipshod way, and Mr Howarth admits incompetence while denying any dishonesty. The truth is that he was very over-worked, bearing responsibility for managing a busy practice and corresponding with all its clients. He explained that he would often receive 40 to 50 telephone calls a day in addition. He was unable in these circumstances to give their cases proper attention.

[48]The telephone conversation of 14 July 2005 led to Mr Harold Lefton amending the draft letter by referring to several named persons who supposedly drove the vehicle. This was plainly misleading, since the Leftons knew that Jeremy was driving on 23 May, although Mr Howarth denies that anyone had told him. The dishonest letter was then sent off. There was thereafter a considerable delay.

[49]It is said on behalf of the Defendants that the content of Harold Lefton’s email of 7 July tends to confirm Janet Lefton’s account of the telephone conversation with Mr Howarth on 17 June. Unless he believed that Mr Howarth had given advice to ignore the NIPs, Harold Lefton would have been taking an extraordinary risk in writing in the terms he chose. What he said at the Bristol trial was that he had put it together in the light of his understanding of the oral advice Mr Howarth had given his wife. It remains a telling point.

[50]It is interesting to note also, in this context, that Janet Lefton admitted to the police much later, on 13 December 2006, that she had written a very similar dishonest letter dated 24 March 2006 concerning her daughter, Michelle Lefton. She had been detected contravening a red traffic light and her mother sent a letter modelled on that drafted by Harold Lefton. She claimed that she did so because that was the course recommended earlier by Freeman & Co in relation to the NIP intended for Jeremy Lefton. Yet again, therefore, her conduct was consistent with her understanding of Mr Howarth’s advice as reflected in her email of 17 June 2005.

[51]On 1 December 2005 Jeremy Lefton, having failed to enter a plea, was convicted in his absence before the Abergavenny Magistrates’ Court of the offence under s.172(3) of the 1988 Act. It was later set aside and the matter was listed for trial in April 2006.

[52]On 11 April, a telephone conversation took place between Mr Howarth and Jeremy Lefton. This was the first time there had been any direct communication between them. The call lasted seven minutes and 29 seconds. Once again, there is a dispute as to what was said.

[53]Jeremy Lefton claimed to police officers that he told Mr Howarth that he had received the NIP (which would be what Mr Howarth had understood from Mrs Lefton’s instructions ten months earlier). Yet he claims that Mr Howarth then advised him to stick to his “original story” (which Jeremy Lefton interpreted as referring to the pretence that he had not received the NIP). Mr Howarth, however, contends that Jeremy Lefton told him on that occasion, for the first time, that not only had he not received the NIP himself, but he had not even been informed about it by either of his parents. That would presumably have come as a surprise in view of Janet Lefton’s earlier instructions. Nevertheless, Mr Howarth says that he proceeded in compliance with his client’s instructions and dictated a draft proof accordingly – during the course of the seven minute phone call. There appears to have been little time for probing, analysis or discussion. No attempt was made to examine the file or attempt to reconcile the account given by Janet Lefton.

[54]Of course, it is right to record that, on Mr Howarth’s version of events, he did not refer to any “original story”. Indeed, he had not been given any such story. He knew that the NIPs had been received and claims not to have been aware of the false account contained in the letter of 14 July 2005 – even though it had been placed in front of him for his comments. He says that he never took it in at the time, because he was very busy, and it is highly unlikely that in the brief time he devoted to the case on 11 April 2006 he would have brought it to mind, unless Jeremy Lefton told him about it. Copies of the proof were sent to both Jeremy and Janet Lefton. Neither of them took issue with its contents.

[55]On the basis of the instructions he was given during this brief telephone call, Mr Howarth put together some instructions for Mr Robert McMaster, who was to represent Jeremy Lefton at the forthcoming trial on 19 April. By that time, Mr Howarth had gone away on holiday. Mr McMaster received no proof from Janet Lefton, but she accompanied her son to court and confirmed his story. On the basis of these dishonest instructions, Mr McMaster decided to call mother and son, who both proceeded to commit perjury, although of course Mr McMaster was quite unaware of that.

[56]Although Mr Hayward later claimed that the perjury was “inadvertent” on the part of the Leftons, and appears to have swallowed Jeremy Lefton’s claim that he did not realise it was dishonest, this is manifest nonsense. Any adult of minimal intelligence would know that to lie in court is a criminal offence. Janet Lefton is herself a solicitor and Jeremy Lefton was a university student at the time. The police officers tried on a number of occasions to minimise what the Leftons had done and to put the blame on Mr Howarth for having put them up to it and for giving them the impression that it was either “clever lawyer’s stuff” or a technicality of some kind. That is quite absurd. In particular, how was it supposed that Janet Lefton, a solicitor, was going to be persuaded by an unqualified clerk that lying in court could be treated so casually? Whether Mr Howarth gave them such advice or not, they plainly knew that what they were doing was wrong. Mr Howarth, of course, denies ever having given such advice either on 17 June 2005, when relaying the contents of Mr Freeman’s vague attendance notes of 10 June, or when speaking to Jeremy Lefton on 11 April 2006.

[57]The fact remains that the Leftons’ dishonesty paid off, albeit only for the time being. The magistrates unsurprisingly acquitted Jeremy Lefton of the offence under s.172(3) and he avoided receiving penalty points on his licence. He was also awarded costs, as I have said, and this proved to be their undoing. On 31 May 2006, the Jeremy Lefton file was submitted for assessment to the Magistrates’ Court, containing letters headed “Notice of Intended Prosecution” and Mr Freeman’s attendance note of 10 June 2005, which referred to the NIP as “in order”. Naturally, these aroused suspicion. It was clear on the face of the documents that Janet Lefton had lied to the court and, to say the least, they raised a strong suspicion that Jeremy had done so too.

[58]The contents of the file did not give any clear indication, however, that Freeman & Co were parties to the deception, although it is fair to say even at that stage it would have raised a suspicion. The file did not contain the email of 7 July 2005 or the draft letter to which Mr Howarth appeared to be assenting. That only emerged later, as it seems to have been “mis-filed” under “Harold Lefton”. There was no other evidence in the file to suggest that Freeman & Co were doing other than carrying out instructions (however uncritically). The allegation that Mr Howarth had actually instigated or encouraged the wrongdoing came later.

The issue of “reasonable and probable cause”

[59]I pause to reflect at this stage how the contents of the file, which was sent by Mr Bates to the police in August 2006, would have struck a reasonable investigator at this juncture. Mr Hayward explained his state of mind in his witness statement at paragraphs 42-43:

“It was clear from the papers in the possession of Mr Bates that a Notice of Intended Prosecution had been received at the address of Mr Jeremy Lefton. The same was contained in the file of papers and there was reference to the same in a note prepared by Mr Freeman and in correspondence apparently sent by the firm to Mr Jeremy Lefton. Despite the existence of these documents, Mr Jeremy Lefton had run the defence at the Magistrates Court that he had never seen this document and in this regard, his mother, Mrs Janet Lefton, had also given oral evidence to that effect. Mr Bates had remembered being present during that trial and was now astounded to see that this document was sitting on the file when the members of the Lefton family had apparently given perjured evidence that they had not received the same. It was important to ascertain the extent to which the solicitor’s practice might have played a part in assisting this apparent deception of the Court.”

[60]In due course, it seems that the investigators became convinced that there were solid grounds for suspecting Mr Howarth of wrongdoing. Many criticisms have been made of the conduct of the police investigation. They have been accused, for example, of rudeness, arrogance, over-zealousness and treating the Leftons more favourably than Mr Howarth. Even if these criticisms are valid, however, such conduct is not necessarily to be equated with malice – still less with the absence of “reasonable and probable cause”. Zeal, and indeed over-zealousness, can be quite compatible with a strongly held belief that the prosecution has a strong case.

[61]The Defendants place considerable reliance on the content of Freeman & Co’s documents. Mr Beer makes the following points on the file.

[62]Janet Lefton’s letter to Mr Howarth of 6 June 2005 enclosed both NIPs. They were, therefore, “sitting there” for Mr Howarth to see on every subsequent occasion when he gave legal advice and when he apparently approved the letter of 14 July 2005 in the name of Jeremy Lefton. They were also there, available to him, when he drafted the proof and instructions to counsel, in April 2006. If counsel had been properly instructed, he would have been in a position to make a critical assessment of the evidence offered at court by Janet Lefton.

[63]The Jeremy Lefton file had written on the front of it “Notice of Intended Prosecution” (again making it clear to anyone consulting the file that the relevant NIP had been received).

[64]There were various letters in the file headed “Notice of Intended Prosecution” and Mr Freeman’s note of 10 June, acknowledging that the NIP was “in order” (i.e. properly served).

[65]The email to Mr Howarth dated 7 July 2005, which only emerged later, asked him to approve what was on its face a dishonest letter to the prosecuting authorities. It also contained the proposition that Mr Howarth had, when he spoke to Janet Lefton on the telephone, advised that they should not respond to the notices. The Defendants rely upon an inference that Mr Howarth was content to approve the 14 July letter containing a false denial. Furthermore, when the police visited the Freeman & Co premises on 30 October 2006, they brought with them a production order that required production of inter alia all correspondence and information relating to the alleged offence concerning Jeremy Lefton. Yet that email, having apparently been “mis-filed”, was not produced to them. Although it was shown the following day to Mr Howarth, it was not disclosed until 9 February 2007. The police, the CPS and counsel regarded that prolonged delay in compliance as highly suspicious in itself. (It is true that the disclosure order was directed to Freeman & Co, rather than Mr Howarth, and it may well be true that the delay occurred at Mr Freeman’s insistence. It may also be true that at least part of that delay was attributable to his wish to take advice. From a prosecutor’s point of view, however, the delay was nonetheless suspicious.)

[66]There are, as I have already made clear, explanations offered by Mr Howarth which tend to rebut some of these adverse inferences. He says, for example, that he only addressed the draft letter of 7 July 2005 in relation to the “reasonable diligence” defence and did not take on board the dishonest denial that the NIPs were received. He also has explained the failure to disclose the 7 July email on the basis that the production order was directed towards Freeman & Co, not to him personally, and that Mr Freeman himself wanted to take advice on the matter before disclosing it. It is necessary to remember, however, that in the context of the tort of malicious prosecution a defendant is not required to analyse the merits of any possible defence or to come to a conclusion on it. The question is whether there is a case fit to be tried. It is not for the prosecutor to usurp the function of the jury.

[67]The draft proof prepared for Jeremy Lefton on 11 April 2006 contains not only the proposition that he was never informed by his parents about the receipt of the NIP (in itself surprising enough) but also the assertion that “… my parents were completely unaware of any earlier correspondence”. Of course that was false, as Mr Howarth well knew. His explanation would appear to be that he had never bothered to read the file before completing the draft. He dictated it while he was on the telephone to Mr Jeremy Lefton. He readily admits to incompetence, yet again, but denies dishonesty. Mr Howarth was, of course, acquitted of the offence with which he was charged, as long ago as March 2008, but once again I need to remember that it is not for the prosecutor to accept or reject such a proposed defence at the stage of investigating: it is his or her task to decide, if appropriate with advice, whether the facts disclose a prima facie case.

[68]Reliance is also placed on the instructions to counsel which Mr Howarth also drafted before the hearing at Abergavenny. Instead of informing counsel that the NIPs had been received, his attention was drawn to the point that the police officer’s statement contained no evidence as to when and by whom the NIP was served and that it might be insufficient to prove service. Attention was drawn also to “a postal problem in the Cumbria area”. It would not have been proper for an advocate, knowing of the service of the NIPs, to advance an argument of that kind before the court, suggesting as it does, at least implicitly, that the “postal problem” could be an explanation for the NIPs not having been received.

[69]There was also a covering letter to counsel suggesting that a point should be taken that Jeremy Lefton had made enquiries of his parents and that they had stated that an NIP had “simply not been received”. Not only did Mr Howarth know that it had been, but his instructions appear to accept the proposition that Janet Lefton had lied to her son. The instructions even went on to submit that in the absence of the NIP “our client was unable to respond to the same”. Mr McMaster should plainly have been told the truth. It was conceivable that he could advance a case, if the evidence warranted it following due enquiry, that although the NIP had been received, his parents had kept that fact from their son. What was plainly unacceptable was to lead counsel to believe that there was no evidence that an NIP had been received. As I have already indicated, if counsel had known the truth, he would have either withdrawn from the case or refused to countenance placing Janet Lefton’s perjured evidence before the court. Again, as I understand it, Mr Howarth’s explanation is that he did not carry out a proper or thorough search of the file before instructing counsel. This was not an argument which investigators or prosecutors had to swallow unquestioningly, but rather was a matter to be resolved by the court at trial.

[70]There was obviously at least a prima facie case, since any casual observer would find it incredible that someone in a solicitor’s office, qualified or not, could be quite so consistently slapdash in preparing a proof or instructions to counsel.

[71]One of the incidental consequences of Mr Howarth’s cavalier approach to instructing counsel was that it led to personal embarrassment for Mr McMaster who, through no fault of his own, fell under suspicion and was interviewed by the police on the basis that he personally might have been implicated in a conspiracy to pervert the course of justice.

[72]Weight is also placed by the Defendants on Janet Lefton’s email to herself of 17 June 2005. To the reasonable investigator, there would be no obvious reason why she should invent advice within a few moments of the conversation. It is possible, of course, either that she did so nonetheless or, alternatively, that she misunderstood Mr Howarth’s potted summary of what Mr Freeman had described on 10 June as “the various potential defences”. While he was going through potential defences such as, for example, not having been served with the NIP or having shown “reasonable diligence”, Janet Lefton may have interpreted what he said as encouraging them to pray one or more of them in aid. What a competent lawyer would have done is not merely to list potential defences, and leave it up to the client to choose one, but rather to relate them to her particular circumstances and eliminate any arguments that did not apply. In this instance, for example, Mr Howarth was told that NIPs had been received: there would be no point in addressing a hypothetical situation in which due service has not been achieved. It is no good just providing the client with a “pick ’n’ mix” bowl of possible defences and asking her to make a selection.

[73]At all events, Janet Lefton’s email plainly gave rise to the (rebuttable) inference that Mr Howarth had advised her to pretend that the NIPs had not been received. Why else should she have made a note of what appeared to be insider’s knowledge; namely, that the Safety Camera Unit was very busy and had no way of knowing whether an NIP had been received or not?

[74]Apart from the contents of the Freeman & Co file, the investigators were also confronted, some months later, with the evidence of the Leftons themselves, who sought to put the blame on Mr Howarth for having taken these false points. As proven liars, of course, their evidence was not necessarily to be relied upon. But prosecutions are often launched on the basis of witnesses who are less than pristine. In so far as there was to be a conflict between the Leftons and Mr Howarth, it was reasonable to take the view that this should be resolved at a court hearing.

[75]In the light of all this material, how was the charge eventually framed? Sir Robin Spencer, who when in practice had been instructed as leading counsel by the CPS, set out in some detail in his witness statement the thinking which led to the formulation of the charge against Mr Howarth and the particulars on which it was based. There were three elements to the charge and in respect of each he had been satisfied that there was a strong case on the evidence as it stood on 17 May 2007 and thereafter. Any one of them would be sufficient, if the jury was satisfied of it on the evidence, to justify a guilty verdict.

[76]First, there was Janet Lefton’s evidence as to the telephone advice on 17 June 2005; namely, that he told her to ignore the NIPs and simply do nothing. As Mr Howarth acknowledged at his trial, had he done so that would have been dishonest advice. He would have been encouraging her not to comply with a legal obligation to provide information (pursuant to s.172 of the 1988 Act). Her evidence appeared to be borne out by the contemporaneous note sent via the Blackberry and by the fact that Mr Howarth himself had marked the file “Hold. Await reminder”. (Indeed, in the trial before me, Mr Howarth himself accepted that it would have been a reasonable interpretation of that note that he had given positive advice to break the law.) Furthermore, Harold Lefton’s email of 7 July 2005 was consistent with his wife’s account. He rehearsed the advice as having been “not to respond to the notices and await the reminder”. What is more, there was no record on file of any denial by Mr Howarth (although he did deny it during his interviews on 12 December 2006). He raised the possibility, at his trial in Bristol, that Harold Lefton’s email might have been printed out on a separate document, but at the time of charging it appeared to be clear that he had scribbled notes on the same document.

[77]Secondly, there was the evidence that Mr Howarth had approved the dishonest letter sent out in Jeremy Lefton’s name on 14 July 2005 to the Safety Camera Unit. It was obviously dishonest, since it denied that the NIP had been received and implied that someone else might have been driving. In Sir Robin’s view, the email and draft letter of 7 July (withheld by Freeman & Co for three months after the production order and only disclosed on 9 February 2007) demonstrated “an unanswerable case that Mr Howarth had been a party to approving the dishonest letter”. He had offered no explanation prior to trial. When he gave interviews to the police, on 30 October and 12 December 2006, the email and draft letter had yet to be disclosed by Freeman & Co. When his tentative explanation first emerged (i.e. as to the possibility of the email and draft letter having been printed out from Denise Hennessey’s computer as two separate documents), Mr Spencer explored the possibility of introducing expert evidence to show that it could not have happened but, understandably, Mr Howarth’s counsel objected that it was too late to introduce expert evidence at that stage of the trial. This inevitably meant that Mr Howarth would obtain the benefit of the doubt in relation to this new “separate document” theory. What matters for present purposes, however, is the position as it seemed to the reasonable prosecutor at the material time. As Sir Robin confirmed in his evidence, there had before the trial been “ … no reason to doubt the integrity of the document in its composite form, annotated by Mr Howarth”.

[78]Thirdly, the Crown placed reliance on Mr Howarth’s conversation with Jeremy Lefton on 11 April 2006, when he was alleged to have told him to stick to the supposedly “original story”. This was part of the same course of action which led him to prepare an apparently dishonest proof for his client and apparently dishonest instructions to Mr McMaster. There was no reason for any reasonable onlooker to conclude otherwise than that Mr Howarth had taken the trouble to read the file before taking these steps. Indeed, his own attendance note typed on 13 April 2006 claims that he had spent 48 minutes attending upon the client, which included “going through the entire prosecution evidence”. It is not possible to come to a definitive conclusion on how much of the file’s contents he did peruse, as his account changed significantly between his witness statement and oral evidence in court. What matters, however, is how it would seem to a reasonable prosecutor. I do not believe that Mr Howarth, even now, appreciates how suspicious the contents of the file would look to anyone unfamiliar with his casual working methods. The explanations he offers for his various omissions tend to prompt incredulity rather than offer reassurance. (Sir Robin, for example, described his explanation over the 7 July email as “preposterous”.)

[79]Sir Robin confirmed his overall view, as conveyed at the time to the CPS and to the investigating officers:

“There was never any doubt in my mind that, on the evidence available at the time the decision to charge Mr Howarth was made, there was a realistic prospect of conviction.”

[80]An important factor to which I have already referred is the role played by this legal advice in the reasoning processes and decision taking which led to the charging of Mr Howarth. The CPS were consulted at the outset, on 8 August 2006, and the officers received guidance on legal issues and strategic planning throughout. Thus, before Mr Howarth was charged after considerable delay, on 17 May 2007, the CPS had been advising for some nine months and leading and junior counsel for four months. One question that needs to be considered, therefore, is the extent to which this throws light on the officers’ belief, or otherwise, on the viability of the proposed case against Mr Howarth. There was much communication between these legal advisers and the investigating officers and, from time to time, robust exchanges of views took place about the right approach to take in the light of the evidence. This is plainly part of the relevant background for answering the subjective question on “reasonable and probable cause”.

[81]For example, the officers for some time thought that the Leftons, Mr Freeman and Mr Howarth should be charged together with conspiracy to pervert the course of justice. On the other hand, counsel took the view that there was not enough evidence to prosecute Mr Freeman and that, although Mr Howarth should be charged in due course, it would not be feasible to go ahead unless the Leftons were willing to provide statements and give evidence against him. It is difficult to see how otherwise the case could have been presented. The officers, however, were conscious of the risk that if, as counsel advised, the Leftons were prosecuted first, and especially if they were convicted, they might decide that there was no reason why they should thereafter continue to co-operate.

[82]Counsel’s approach prevailed, in the event, and proceedings were concluded against the Leftons before Mr Howarth was charged. Thus it is clear not only that the officers were acting in accordance with legal advice but that their own actions were guided by a strategy with which, in certain respects, they did not agree. This hardly seems consistent with their setting out to abuse the legal process, in the context of a claim in malicious prosecution, or with exceeding their legal powers in the way contemplated by the House of Lords in Three Rivers.

[83]As I have said, counsel advised the officers that there was a realistic prospect of the Claimant being convicted of perverting the course of justice in the light of the documents and the Leftons’ evidence (flawed though it plainly was). That presents a considerable hurdle to Mr Howarth on the issue of whether they genuinely believed that there was a prima facie case. That obviously goes to the subjective element in “reasonable and probable cause”. It is also relevant on the closely related issue of whether they acted in good faith. Mr Beer submits that this hurdle is insurmountable.

[84]As I have already noted, Ms Williams suggests that the legal advice did not play any part in the officers’ mental processes and points to their dissent from it in support of this. I regard this as unrealistic. I accept that the officers strongly took the view that Mr Freeman also was a co-conspirator and that all the participants should be tried together. But that does not entail that they also lacked faith in the legal advice concerning the strength of the case against Mr Howarth. That is what matters for present purposes.

[85]Mr Beer referred in addition to the attitude of Mr Howarth’s own leading counsel, Mr Robert Smith QC, who was interviewed in connection with his client’s complaint against the police officers. He said that the evidence against him was, on the face of it, very strong. The circumstances certainly called for an explanation, as they suggested that he had indeed perverted the course of public justice. He added that he understood why the decision had been made to prosecute him. Mr Beer also points to the fact that Mr Smith had neither suggested that the case should be dismissed nor, at the close of the Crown’s case, that there was no case fit to go to the jury. I remind myself, however, that I am concerned with matters as they stood at the time of the decision to prosecute. It does not seem appropriate to take into account these later factors. Nor could Mr Smith’s views have had any impact upon the state of mind of the investigating officers.

[86]I need to address Ms Williams’ suggestion that the evidence was not “fairly” placed before counsel and that this undermines the weight that can be placed upon this legal advice (whether for the subjective or the objective test). Ms Williams argues that the officers did not themselves expressly claim to have placed any reliance on the legal advice; indeed, they did not have any belief in the merits of the prosecution case and were not influenced by that advice because they knew that the lawyers were (thanks to them) working on false or incomplete factual data. In particular, it was said that the police officers “talked up” the quality of the Leftons’ evidence as being, for example, “full and frank”. Yet, as Sir Robin Spencer made very clear in the witness box, counsel were not so much interested in the officers’ assessment of the Leftons, but rather in the underlying documents. They were only too well aware of the Leftons’ shortcomings. This is what I would have expected.

[87]An argument that Ms Williams puts at the forefront of her case on subjective “reasonable and probable cause” is based on the offering of inducements to the Leftons by the police officers – effectively to “buy” their co-operation. This is another serious allegation which needs to be carefully considered. Ms Williams submits that it should be decisive of her client’s case on the subjective element because, if it is true, the officers would have known that any evidence was without genuine credibility and could never have been used if the facts had emerged. I should make clear that each of the officers firmly denies that any offers were made and Ms Williams recognises that it can only be established if I draw an inference.

[88]She invites this inference from a number of specific factors and also from the general context. First, the officers were keen to prosecute someone from Freeman & Co and were very concerned that the Leftons would not co-operate if they were prosecuted and dealt with in advance of any proceedings against Mr Howarth. Moreover, they were aware, at least from 15 January 2007 when a conference took place with counsel, that the Leftons’ evidence was regarded as indispensable. This is the context which Ms Williams suggests could have put temptation in the officers’ path. What they could offer, she says, was assistance with the sentencing process. They could indicate that the Leftons had been fully co-operative and thereby hope to reduce the sentences imposed and even, perhaps, to the extent of keeping them out of custody – although that would seem to be unrealistic. I should draw the inference, in Ms Williams’ submission, from the following pointers.

[89]First, there was the provision of the “text” of 12 April 2007 containing three “falsehoods” she has identified: i) She points out that Mr Dodd was inaccurately described as “the SIO in this investigation”, and argues that this would convey to the court a greater degree of personal knowledge than the facts warranted. ii) It was said that the offences with which the Leftons were charged “came to notice during an investigation into a firm of solicitors”, which she suggests would have given the false impression that the Leftons were merely at the fringes of an investigation centred on Freeman & Co. iii) The letter inaccurately described the Leftons as having “admitted their wrongdoing in full”, whereas they had in a number of respects been less than frank.

[90]There was also an apparent admission by Jeremy Lefton in the course of the Bristol trial, when the following exchange took place:

“Q. Had the police ever told you that your assistance to them might result in you not having to go to prison? A. Yes.”

I agree this looks promising from Ms Williams’ point of view, but Jeremy Lefton is clearly both suggestible and unreliable. Moreover, the matter was not thrashed out to a conclusion. It remains no more than a tantalising “straw in the wind” and has to be set against the firm denials by the officers under oath.

[91]Mr Hayward in his evidence before me mentioned several times that Mr Mackey volunteered witness statements on the Leftons’ behalf and denied that this had been initiated by the police officers. Moreover, he made a note in his action log on 9 November 2006:

“Indication from Mr Mackey of possible witness statements from his clients”

. But Ms Williams points to references in interviews on 19 February 2007 by Janet Lefton and Mr Mackey to the police having requested statements. This in itself, of course, would not entail the offering of inducements. There is also a somewhat cryptic passage in an interview with Janet Lefton on 9 November 2006, where she appears to be saying that she had a conversation about Mr Howarth the evening before with an unidentified man (“he”), who told her (correctly) that Mr Howarth was not an ex-police officer. Ms Williams submits that this conversation appears to have been with someone who was present at the interview (other than her solicitor) – therefore a police officer. Having read the passage several times, I find it rather confusing. I certainly cannot extract from it a secret meeting on 8 November 2006 at which a police officer offered inducements.

[92]Harold Lefton referred in a taped interview to “off the record” discussions having occurred on 19 February 2007 about his evidence. When this remark was made, no one present purported to correct him. Ms Williams suggests, in the light of this, that something improper must have been going on. Again, however, I simply find it muddled and inconclusive.

[93]Evidence was given by Mr William Pettit (a retired Detective Inspector of the Greater Manchester Police) to the effect that, when the Leftons were sentenced at Newport to three months immediate custody, Mr Hayward reacted with a stage whisper of disappointment, “Oh, fucking hell”. (There appears to be no evidence that anyone else present heard it.) Mr Hayward denies this, of course, but Mr Lewis put forward the possible explanation that (had he actually said the words) Mr Hayward might have been disappointed at the leniency of the sentence. That is unreal. I think Mr Hayward probably did make the remark out of frustration, although not because he had promised a lower or non-custodial penalty (how could he?), but rather because it might render the Leftons less co-operative in relation to the forthcoming prosecution against Mr Howarth.

[94]Reference was also made to the contents of a statement prepared by Mr Hayward for the purpose of a complaint made against him. He said, “I am unable to say whether the topic of credit for the statement was ever mentioned, but if I had been asked then I would have told the truth and say that in many cases it does assist. I can see nothing wrong in an honest answer that would not be misconstrued as an inducement”. It is suggested that this is something of a “give-away”, in that Mr Hayward was anticipating that such an allegation might be made against him. But this passage was immediately preceded by the clear statement: “At no time was any inducement or offer made to the LEFTONS by DS LEWIS or I concerning their forthcoming court case in respect of the statements that were to be provided by them concerning the actions of FREEMAN and Co”.

[95]Ms Williams also observes that Mr Hayward appeared to enjoy a surprisingly close relationship with the Leftons’ solicitor, Mr Mackey, given the circumstances. She cites as an example the fact that Mr Hayward relied on Mr Mackey’s reassurance that Michelle Lefton had been doing voluntary work in Costa Rica – an alibi offered by Janet Lefton in connection with the alleged motoring offence and which was contained in a letter of 27 May 2006. I see this as rather clutching at straws, since there is no reason why a solicitor’s word should not be accepted at face value. Mr Hayward might reasonably have assumed that Mr Mackey had carried out some independent check to confirm Michelle Lefton’s whereabouts at the material time. Another point taken is that when Mr Hayward advised Janet Lefton on 1 November 2006 that she needed the services of a solicitor, the only possible explanation is that he wished to make the solicitor, once instructed, an offer of co-operation if the Leftons provided witness statements implicating Freeman & Co. This also seems to me a rather tenuous link.

[96]I have already noted that the officers deny the offer of any inducements to the Leftons. I am unable to infer, even taking all Ms Williams’ straws in the wind together, that there is enough material to justify a finding, on the balance of probabilities, that they were all lying.

[97]I should now consider in a little more detail the material that Ms Williams argues that the officers withheld from the legal advisers. She says that this led Sir Robin to advise, between January and May 2007, on a false basis; that the facts had not been fairly laid before him.

[98]It is said, generally, that the officers failed to test the Leftons’ accounts under caution or to follow obvious lines of questioning. In particular, in February 2007 they failed in certain respects to follow up on “bullet point” lines of enquiry suggested to them by Sir Robin Spencer in a document he had prepared over the previous weekend (for example, in relation to Harold Lefton’s account of the email of 7 July 2005). Moreover, they misrepresented the Leftons as having been “frank” in their admissions and as making a “clean breast” of their wrongdoing. Without going into unnecessary detail, I can say that this is almost certainly correct. The officers did apply rather rose-tinted spectacles to the Leftons’ evidence, not least because they were being advised that they were essential to bringing home a case against Mr Howarth.

[99]In significant respects, the officers allowed themselves to be persuaded that aspects of the Leftons’ evidence were credible and so presented them to the lawyers, even though a proper analysis would have shown this not to be the case.A number of examples were given.

[100]On 9 November 2006 in his interviews Jeremy Lefton claimed not to know who had been driving the vehicle when the speeding offence was committed on 21 May 2005. He added “I couldn’t tell you who was driving to be honest. I don’t even know where it [i.e. the offence] was or anything like that”. In his witness statement of 19 March 2007, he continued to maintain that he had shared the driving with his father. Yet, on 20 February 2007, he had admitted during his interview that he had been driving on that date.Thereafter, obviously the police knew that he had lied in his original interviews.

[101]Janet Lefton had also known early on that her son had been driving both on 21 and 23 May 2005. She admitted this at the Bristol Crown Court on 7 March 2008. Yet in her statement of 9 November 2006, like her son, she referred to the driving as having been shared between him and her husband on 21 May. The police officers failed to probe her account even after they knew that Jeremy Lefton had admitted driving on 21 May. It is said that this was a point of significance, as to her credibility, since her instructions over the telephone on 6 June 2005 to Mr Howarth, and her letter of instruction to Freeman & Co of the same date, also gave the false impression that she was unaware of who had been driving. This was obviously at a time before anyone could suggest that she had fallen into the “clutches” of Freeman & Co.

[102]In a pre-prepared statement that Janet Lefton provided for the purpose of her police interviews on 9 November 2006, she said that the dishonest letter of 14 July 2005 had been prepared following a conversation with Mr Howarth in which he had told her husband to deny that he had ever received the original NIP. She claimed that it was “effectively drafted by Mr Howarth”. Mr Lewis also included in her March 2007 statement a similar account. Yet, from 9 February 2007, the officers had available to them the email of 7 July 2005 which appeared to make clear that it was Harold Lefton who had composed the first draft before talking to Mr Howarth. Despite this, the officers continued to present Janet Lefton as a “frank” witness.

[103]The same point applies to Harold Lefton himself, who had failed to disclose to the police that his draft of the 14 July letter had been prepared before speaking to Mr Howarth. He also suggested in interview that the format of the letter corresponded to a “standard” Freeman & Co response for motoring cases of that kind, even though he had composed the text himself. Despite the fact that the officers had the 7 July email from 9 February 2007, his witness statement of March 2007, prepared by Mr Lewis, continued to reflect the earlier account. (It is fair to point out, of course, that Harold Lefton’s drafting could have been based on his understanding of the advice given to Janet Lefton orally on 17 June 2005.)

[104]In November 2006, Harold Lefton’s case was that he did not believe the letter of 14 July 2005 to have been dishonest, but merely “sharp practice”. This discredited material was also included in the March 2007 witness statement prepared by Mr Lewis. This was hardly consistent with his being put forward as a “frank” witness. Mr Hayward doggedly persisted in interview, in February 2007: “So at all times you took the advice of Freeman & Co in the form of advice given to you by Trevor Howarth”.

[105]Janet Lefton persisted in her police interviews that she did not know what Jeremy Lefton’s evidence was to be, or what his defence was, until arriving at Abergavenny Magistrates’ Court on the morning of the hearing. This was despite travelling with him to Abergavenny the night before. She had also been sent a copy of his proof of evidence. This case was maintained in her witness statement prepared by Mr Lewis in March 2007, despite the scepticism expressed by Mr Hayward during her interview of 20 February.

[106]Likewise, Mr Hayward was sceptical about Jeremy Lefton’s account of these matters during his interview on 20 February 2007. He maintained then, as he had during the previous November interviews, that he did not know that he would be giving evidence or what his defence was supposed to be until he met counsel at court. This absurd case still found its way into the witness statement prepared by Mr Lewis.

[107]In his pre-prepared statement, for the interviews in November 2006, Jeremy Lefton had claimed that he did not realise that he was doing anything wrong and thought that running a false defence was just “clever lawyer stuff” recommended by Mr Howarth. This was obvious nonsense too and the police officers cannot have found it credible. Yet the same theme was echoed in his statement of March 2007. Janet and Jeremy Lefton also lied to the Magistrates’ Court in claiming that Jeremy Lefton had faxed a document to the court containing his “not guilty” pleas. The court set aside the guilty verdict originally entered on the basis of this information. The false claim was maintained also in their pre-prepared statements handed to the police for the 9 November 2006 interviews and in the witness statements of March 2007. Mr Howarth managed to establish for the purposes of his trial at the Bristol Crown Court that no such faxed document had ever been received at Abergavenny.

[108]I see the force of all these criticisms, of course, but it does not seem to me to demonstrate that either(a) the legal advice was proffered on a materially false basis, or

(b) the police officers had no honest belief in the strength of the prosecution case against Mr Howarth. The legal advisers were only too well aware, from the outset, that the Leftons were flawed witnesses. Their advice took that into account. It was always recognised that they could be discredited in cross-examination at the Crown Court. The strength of the prosecution case against Mr Howarth did not depend on the police officers’ assessment of their credibility. Furthermore, the fact that a police officer may seek to gild the lily, in making an assessment of a witness’s credibility, does not necessarily mean that he has no faith in the witness on the central issues or, more generally, in the strength of the prosecution case.

[109]The provision of legal advice can be relevant when resolving both the subjective and objective issues in relation to “reasonable and probable cause”. Ms Williams argues, first, that it should be discounted when coming to a decision on the subjective question, since there is no evidence that the officers actually placed any reliance upon it in forming a view as to the strength of the case against Mr Howarth. I have already addressed this argument and the reasons why I found it unpersuasive: see [84] above.

[110]So far as the objective issue is concerned, she submits that little or no reliance should be placed on the advice because the facts had not been “fairly” presented to the lawyers. She again rehearsed the argument that there were material matters of which Sir Robin was unaware at the time he gave his advice. She identified the following (by now familiar) examples: i) The Leftons had been far less than “fully frank” with the police. ii) The officers had failed to explore relevant lines of questioning with each of the Leftons, including by reference to the specific “bullet points” prepared for them in February 2007 by Sir Robin. iii) The officers had not been even handed in their treatment of the Leftons and of Mr Howarth, a fact which would potentially impact on the quality of their respective accounts. iv) Mr Bates was unable to support a passage in his witness statement which he had asked to be deleted (i.e. speculating as to what “must have been” in the instructions to counsel). v) Harold Lefton was very likely to have tailored his original account to the police in order to avoid mentioning the email of 7 July 2005, rather than simply forgetting about it, because he knew at the time what documents the police had (since the Jeremy Lefton file had been couriered to him on 14 November 2006). vi) The letter or “text” dated 12 April 2007, supplied to Judge Curran for the purposes of sentencing the Leftons, was false in the three respects she identified: see above at [89]. Although signed by Mr Dodd, and dated 12 April, computer data appear to establish that the text was created on Mr Hayward’s computer two days earlier. vii) The Leftons were not motivated by remorse or by wanting to make a “clean breast of the matter”. viii) Their witness statements of March 2007, in significant respects, failed to reflect what they had said in their interviews in February of that year. (It seems clear, however, that counsel had received the transcripts of the February interviews on 15 March 2007 and were thus in a position to check for themselves what the Leftons had said.) ix) Janet Lefton had committed a separate offence of perverting the course of justice by sending the dishonest letter dated 24 March 2006 relating to her daughter Michelle, who had also been spotted by a camera on the A193, and had adopted this strategy (she said) because it was what Mr Howarth had recommended the previous summer in relation to her son. Yet in a case summary Mr Hayward failed to disclose this further crime (which was relevant to her credibility).

[111]I hope that I shall not be thought dismissive of these arguments if I address them compendiously. As I have already observed, the CPS and counsel had taken the dishonesty of the Leftons as a datum from the outset. They knew they were vulnerable to cross-examination and that it was in their interests to put as much blame on Mr Howarth as they could. They attached much greater significance to the documents from Freeman & Co. Thus, if all these matters had been drawn to their attention, I do not believe that it would either have made any significant difference to their view of the Leftons or have detracted from their view as to the strength of the case against Mr Howarth. I therefore regard the legal advice as carrying weight not only in judging the genuineness of the officers’ belief in the case (the subjective test) but also when deciding how the material available prior to charge would strike the reasonable onlooker (the objective test).

[112]I accept Mr Beer’s submission and am quite satisfied that the test identified by Hawkins J in Hicks v Faulkner, cited above at [11], is amply fulfilled.

The Claimant’s case on malice

[113]Much attention was focussed in the course of the trial upon the state of mind of the relevant officers. There is no doubt that there was a clash of personalities here. The officers reacted adversely to the way they were treated by Mr Howarth, and to some extent also by his legal advisers. He on the other hand regarded Mr Hayward, in particular, as rude, arrogant and patronising. He was not alone in this, as other witnesses have testified. There was also a complaint against him that, during a witness interview at the police station on 21 November 2006, he had made a rather coarse and sexist remark to one of the young women from Freeman & Co’s office. She complained shortly afterwards and her complaint was upheld. Regrettable though it was, it is not a matter which really assists me on the issue of malice in the relevant sense (i.e. whether there was a lack of genuine belief in the case against Mr Howarth). Another complaint that was upheld was of his making silly gestures in court when Mr Howarth was in the witness box. Again, however, it does not help on the central issue. It is neutral as to the state of his belief and it certainly does not show any intention to abuse the legal process.

[114]Mr Hayward, I believe, accepted in cross-examination that they had treated Mr Howarth in their investigations less favourably than the Leftons (who he believed to be his co-conspirators). The case against the Leftons, both with regard to perjury and perverting the course of justice, was clear cut. They were obviously, therefore, people whose evidence had to be approached with caution, but in view of the strength of the documentary evidence there was no conclusive reason why the officers should have totally discounted their claims against Mr Howarth.

[115]Nevertheless, they appear to have lost perspective so far as the Leftons were concerned. I have rehearsed some of Ms Williams’ examples above. There was even a draft letter, prepared by Mr Hayward, in which he referred to the Leftons as “victims” of Mr Howarth (despite the fact that he also acknowledged that they were intelligent and well educated people). That was unreal and I have no doubt that Mr Hayward was “enthusiastic” in his pursuit of Mr Howarth, but that is in my view largely because he thought genuinely that he was dealing with a “bent” firm of solicitors and that Mr Howarth personally was dishonest.

[116]This is illustrated, for example, in the course of an interview he conducted with Mr Harold Lefton, when he encouraged Mr Lefton to say that the dishonest letter of 14 July 2005 (drafted in fact by Mr Lefton himself) was a standard form of letter recommended by Freeman & Co to clients who had been served with a NIP. That was criticised by Ms Williams in the course of cross-examination, for reasons which I understand, but I refer to the incident at this juncture because I believe it simply bears out the strength of Mr Hayward’s belief that he was dealing with a “bent” firm. It does not, in my judgment, point to a lack of honest belief in the proposed charge – rather the opposite. It is fair to say also that the suggestion of a “standard letter” does at least appear to have originated with the Leftons (as part of their tactic of shifting blame on to Freeman & Co) rather than with the police officers. For example, Harold Lefton raised it in his pre-prepared statement for his interview of 22 November 2006. Also, in her interview of 13 December 2006, Janet Lefton referred to modelling her dishonest letter of 24 March 2006 about her daughter upon a Freeman & Co “formula”.

[117]The suggestion is made that Mr Hayward, following contact by Adrian Bates in August 2006, saw an opportunity to discredit Freeman & Co and/or to pursue a “police vendetta” against them. This is said to be because the police had grown increasingly frustrated at the success of Freeman & Co in securing acquittals in road traffic cases. It was submitted that it was apparent that from a very early stage Mr Hayward was preoccupied with building a prosecution against someone from the high profile Freeman & Co, “thereby both discrediting the firm and enhancing Gwent police / his own prestige, rather than conducting any genuine investigation”. This seems to have been put forward on a rather speculative basis.

[118]It is necessary to remember that this matter was drawn to the attention of the Gwent police by Mr Bates. It was not something initiated by them. Mr Hayward was asked to investigate the matter, following the initial approach, by a senior officer, Mr Dodd, who gave evidence before me. He said that this was the first time he had ever heard of Mr Freeman or his firm. He was originally going to take a witness statement from Mr Bates, but in the event he was unable to do so because he had just been appointed as senior investigating officer in a murder inquiry. Moreover, Mr Hayward said that he was up to then unaware of Freeman & Co or of its proclaimed success. I see no reason to disbelieve him or Mr Dodd. Yet again, I remind myself that the CPS were involved from the outset and it would be fanciful to implicate Mr Barker (or the independent counsel advising him) in any such vendetta.

[119]There is certainly no allegation that any police officer in the case had previously had any dealings with Mr Freeman or Mr Howarth or had any personal motive to seek revenge for anything. Nor was there any reason for the Gwent police in general to seek revenge over any of Mr Freeman’s cases. Mr Howarth may simply have had a somewhat exaggerated perception of the firm’s public profile.

[120]Nevertheless, it is said that Mr Hayward would not analyse the evidence fairly or objectively, since “Freeman & Co were pre-determined by Mr Hayward as having been the catalyst for the Leftons’ perjury”. This is based upon Mr Barker’s evidence. That was his first impression following a meeting on 9 August 2006 with Mr Hayward. Ms Williams argues that he can only have obtained this impression from Mr Hayward, rather than the file itself, since the documents furnished by Mr Bates gave no such indication. I do not accept that. As I have already made clear, it is a possible interpretation of those documents that Freeman & Co were (in Mr Barker’s phrase) “steering the Lefton family to providing false evidence”. If that impression was given to Mr Barker by Mr Hayward following his initial reading of the file, I see no reason to conclude that this was prompted by malice. On reading the proof of Jeremy Lefton, prepared in April 2006, Mr Hayward obviously found it difficult to reconcile with the contents of the file and was entitled to draw an adverse inference that the evidence pointed towards impropriety on the part of Freeman & Co. (That is even without the material which came to light later on, such as Janet Lefton’s email of 17 June 2005, Harold Lefton’s email and draft letter of 7 July and Mr Howarth’s annotations upon it, and the instructions to counsel of April 2006.)

[121]Another point taken at this early stage is that Mr Hayward failed to make an amendment or deletion to Mr Bates’ draft witness statement, as he had requested. He felt unable to support a sentence to this effect:

“Also, there were clear differences in the instructions that the barrister [Mr McMaster] must have received from Freeman & Co on which the defence appeared to be based”

. He was not prepared to speculate. He sent an email to that effect on 16 August 2006:

“I don’t think I am in a position to say what the barrister’s instructions from Freemans may have been … Certainly if he knew that the NIP had been received he has put himself in a difficult situation by running that defence on his client’s behalf.”

Despite this, the alteration was not made and Mr Bates signed the final draft without checking. It is said, correctly, that Mr Hayward had no good explanation for failing to make the change. But Ms Williams goes on to invite the inference that “he was not prepared to countenance a ‘watering down’ of his pre-determination of the solicitor’s role”. I think it more likely that the explanation is carelessness. He could hardly expect that Mr Bates would fail to spot that his instructions had not been carried out. He would, in any event, be likely to disown the passage again as soon as he spotted it. I cannot, therefore, attach the sinister significance to Mr Hayward’s omission that Ms Williams proposes.

[122]There are some other specific claims in support of Mr Howarth’s case on malice. First, there is the disparity in treatment as between the Leftons and Mr Howarth. This is accepted, at least in part, and I have already recognised that the police officers lacked a proper sense of perspective, in seeking to minimise the Leftons’ casual dishonesty, and perhaps showed undue enthusiasm in pushing the responsibility for this in Mr Howarth’s direction. Their judgment can be criticised in this respect, but this is not to be equated with malice in any relevant sense.

[123]It was an inherent part of the CPS strategy that different considerations applied to Freeman & Co which called for separate treatment. Mr Barker explained that he saw this as the appropriate way to further the investigation. The papers disclosed by Mr Bates had led him to believe that the inquiry should be primarily focussed in the direction of Freeman & Co. There could be little doubt that the Leftons had lied. What required further investigation was the extent to which Freeman & Co had been complicit. In the early stages, the priority was to secure the papers in the possession of Freeman & Co and to obtain a production order for that purpose. Also, he thought it inappropriate in the light of the material before him to give them advance notice of the production order, since this might be counter-productive and frustrate their investigation. There would obviously be the opportunity to conceal or fillet the contents of their files. (There was concealment, as it later emerged, of the very important email of 7 July 2005 which was discovered on 31 October 2006 and then withheld, unjustifiably, until 9 February 2007.) The other side of the coin is that Mr Hayward’s course of action, so far as the arrests were concerned, took place following consultation with the CPS. The tactical distinctions in the approach taken to the various suspects are explained on this basis. Accordingly, I am unable to accept the submission that “Mr Hayward’s unjustified pre-occupation with Freeman & Co set the course for the whole investigation right from this early stage”. I can find no evidence to show that they were in any way motivated by malice on the part of any police officer.

[124]The next significant stage in the enquiry was the arrest and interview of Mr Howarth on 30 October 2006. Further criticism is levelled at the police over timing and execution. There is said to be no logical reason why they should have arrested him and Mr Freeman prior to ascertaining whether the Leftons made any allegation against them. As is already clear, the Leftons were plainly going to be unsatisfactory as witnesses, since they had apparently conspired to pervert the course of justice and two of them had brazenly committed perjury. Although they would form an essential link in any prosecution of Mr Howarth, it would be necessary to have independent corroboration. That was why it was appropriate to see any relevant documentation in the Freeman & Co files. I can see no evidence of impropriety or malice in the adoption of that strategy. It is true, as Mr Barker admitted, that the arrests did not need to take place on the same date as the production order was executed. Mr Lewis was unable to give any reason for making that choice, but in itself this provides no evidence of malice.

[125]Following the arrests, there was evidence of pettiness on the part of the officers. They refused to let Mr Howarth’s solicitor, Mr Judge, have a copy of the disclosure document, with the result that he was obliged to sit there and copy it out manually while Mr Howarth sat in a police cell. This was indefensible and no attempt was made to defend it. Mr Lewis accepted that it was because he found Mr Judge obstructive in some (unspecified) way. By contrast, on 3 November 2006, this document was emailed to the Leftons’ solicitor, Mr Mackey, in advance of their arrest (of which he had been given a week’s notice by telephone two days earlier).

[126]Another example cited by Ms Williams relates to Mr Howarth’s interview on 12 December 2006. It was being put to him by Mr Hayward that he had advised Mrs Lefton to deny receipt of the NIP in order to “frustrate a successful prosecution”. Mr Howarth wanted to know if this allegation came out of the officer’s head or whether it was an accusation against him made by Janet Lefton. Mr Hayward refused to answer and asked him sarcastically whether he simply wanted to know so that he could “make a decision on whether or not you are going to lie to us”.

[127]It is clear that the officers found Mr Judge and Mr Howarth irritating and rude, and indeed it was mutual, but it would be a mistake to confuse pettiness or irritation with malice in the relevant sense.

[128]It is also pointed out by Ms Williams that on 14 November, eight days before the appointed day of Harold Lefton’s arrest, the officers took the trouble to courier a copy of Freeman & Co’s Jeremy Lefton file to Mr Mackey. This again is said to illustrate more favourable treatment accorded to the Leftons, as indeed it does. The particular advantage for Harold Lefton, of course, was that he was enabled to tailor his account in interview to what he knew or believed was already in the possession of the police investigators. In the absence (so far) of the email of 7 July 2005, he could avoid reference to his role in drafting the dishonest letter of 14 July. He could also confer with his wife and son generally about the case in the intervening period.

[129]Two other allegations are relied upon in support of the plea of malice against Mr Hayward. First, it is said that he must have been behind the leaking of the arrests at Freeman & Co to the media. He denies it and there is nothing to tie him into this. Secondly, it is said that Mr Hayward and Mr Lewis discussed their evidence in the interval between their appearances in the witness box at the Bristol Crown Court trial. They deny this and it is simply not made out as a ground for inferring malice such as to support the claim of malicious prosecution.

My conclusions on liability

[130]In conclusion, there was ample material to support “reasonable and probable cause”, largely corresponding to the reasons identified in the charge against Mr Howarth. Addressing the matter in terms of Mr Beer’s questions, as identified at [27] above, I would hold that in light of the evidence available to them as at 17 May 2007 both Mr Hayward and Mr Lewis (whatever their shortcomings) genuinely believed that there was a case fit to be placed before a jury. I also accept that, objectively judged, there was indeed such a case. In coming to those conclusions I have taken into account the cogent legal advice given by counsel between January and May 2007, although I would not categorise it as determinative. I do not accept that counsel or the CPS were materially misled by the officers or that the available facts were not “fairly” laid before counsel.

[131]Furthermore, I am not satisfied that there is anything to support the serious allegation of malice against the officers. Mr Hayward and Mr Lewis believed that there was, at all material times and specifically on 17 May 2007, a case against Mr Howarth fit to be placed before the court to the effect that he had done one or more of a series of acts tending to pervert the course of justice. They wanted him to be prosecuted for that legitimate reason and wished to avoid any repetition of what they perceived to have been a miscarriage of justice.

[132]There has been shown to be nothing to underpin the claim for misfeasance in public office. The relevant officers were clearly acting within the scope of their powers at all times.

[133]There will accordingly be judgment for the Defendants.

[134]Finally, I wish to thank counsel on both sides for their hard work, skill and efficiency in the presentation of what had become quite voluminous evidence.

Cited in 1 later judgment

Qema v News Group Newspapers Ltd 2012