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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> BT v Crown Prosecution Service [1997] EWCA Civ 3000 (16 December 1997) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1997/3000.html Cite as: [1997] EWCA Civ 3000

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORWICH COUNTY COURT

		Royal Courts of Justice
		16th December 1997

Lord Justice Kennedy.:

1. This is a plaintiff's appeal from a decision of Judge Mellor who on 19th November 1996 in the Norwich Crown Court dismissed the plaintiff's appeal for damages for malicious prosecution and misfeasance in public office. The appeal relates only to the allegation of malicious prosecution, which, it is submitted should have been left for consideration by the jury.
2. Facts

The history of events giving rise to the civil proceedings begins in the spring of 1992 in Kings Lynn. KT was then 19 years of age and unemployed, but she had previously worked for Boots The Chemist at Kings Lynn, where the plaintiff BT, then 49 years of age, was a part time warehouseman. After KT ceased to work at Boots they saw each other occasionally, sometimes he gave her a lift in his car, on one occasion they had a cup of coffee together, and, according to her, he kept asking her to go for a drink but she refused.

KT says that on 2nd April 1992 she left home at about 9.30 am to go to the Job Centre. The plaintiff saw her in the street and offered her a lift, which she accepted. Instead of taking her to the Job Centre he drove her to an area about 20 minutes drive away from Kings Lynn where he stopped the car in a quiet place, and, against her will kissed and indecently assaulted her. He then drove her back to the centre of Kings Lynn and let her go. She saw a couple of policemen but did not report the matter straight away. She went to the Job centre, and at about 5.15 pm that evening she made a tearful telephone call to her boyfriend, AF, when she told him what had happened. The Police were then informed and on the following day KT made her first statement to the police. The sequence of enquiries in this case is, as it seems to me, of some importance.

On 9th April 1992 P.C. Money and P.W. Starland saw the plaintiff at Boots and told him that he was being arrested on suspicion of indecently assaulting KT. He was cautioned and said "whose she?" That is accepted by him to have been his response. He was taken to the police station and interviewed. He then admitted knowing KT, and seeing her from time to time. He said that on the Thursday, exactly a week earlier, he got to work at 8.45 am, and that he did not see KT at all that week. He said that he was at work all day until 5.45 pm, unless he went out to deliver tablets to old peoples homes, which he could not remember doing as he was on his own and busy. He denied the offence and his car was, he said, a silver Peugeot, not a blue Sierra as KT had said.

Next day, on 10th April 1992, KT was seen again by the police, and made another statement. She said that on 2nd April the plaintiff told her he usually started work at 9 am, but that on that day he had started at 8 am because he had to deliver prescriptions for the dispensary unit at Boots. She noticed that he had two prescriptions in his car lying by the gear stick, stamped Fairhead Estate. When asked again about his car she said that having looked at other cars she now thought it was a blue/grey Peugeot. She also said that as a result of the incident she was very upset, she had been prescribed sedatives and had started to see a counsellor.

Eleven days later on 21st April 1992 the police took a statement from DC, the 25 year old pharmacist at Boots in Kings Lynn. By then 19 days had passed since the 2nd April, and DC said that on Wednesday 1st April she asked the plaintiff to collect prescriptions from surgeries including Fairstead (sic), on his way to work, his normal starting time that week being 9 am. Because the surgeries did not open until 9 am the plaintiff did not get to Boots with them until some time later. She said "I think he was back before tea break which starts at a quarter to ten, but I can't be exact."

Three days later, on 24th April 1992, the plaintiff was interviewed again. He said he went to work at 9 am on the day in question and went to collect prescriptions from four surgeries and to an old peoples home, and was back at Boots by 9.45 am. That was, he said, normal for a Thursday, but he could not explain how KT would know of him having prescriptions in his car on 2nd April, unless she was with him (which he denied) or why she should make this false allegation against him.

On 17th May 1992 the police took a statement from KT's boyfriend, AF, who confirmed what she had said about her phone call to him.

On 19th August 1992 there were committal proceedings at Hunstanton Magistrates' Court, and KT, DC and P.C. Money all gave evidence. KT's account of what happened on 2nd April was substantially unchanged, she said that the assaults took place at or near Terrington St John's, and that the clock was showing 9.25 am in her home when she left. She said that together with the plaintiff she arrived back in Kings Lynn at about 10.15. She was then reminded that in her second statement she had put the time at ten to or five to ten, and reverted to saying that ten to or five to ten was correct.

DC confirmed her statement and said in re-examination :-

"I know Mr BT was back before we sent another employee who is a diabetic off for his tea break which would have been at quarter to ten."

P.C. Money said that it would take 15 to 20 minutes to get from Kings Lynn to Terrington St John's by car, so of course it followed that if the plaintiff and DC were right as to the time when the plaintiff got back to Boots on 2nd April 1992 and the complainant was right about the time at which she left home her evidence as to the assault could not be accepted. There simply would not have been time after 9.25 am when she said that she left home for the plaintiff to collect her, drive her to Terrington St John's, assault her, drive her back and for him to be at work at 9.45. The Magistrates were therefore asked by the defendants legal representative not to commit the case for trial, but they found a prima facie case, and committed. The prosecution was represented at the committal proceedings by a lawyer agent Mr Jonathan Eales, and it seems that he was not asked to report or advise, nor did any CPS lawyer review the case thereafter before it reached the Crown Court. Instructions to prosecuting counsel were drafted by a law clerk, and the brief was delivered to counsel's chambers on 21st September 1992.

On 25th November 1992 the trial of the plaintiff began before Judge Langan Q.C. and a jury at Kings Lynn Crown Court. After the complainant and DC had given evidence prosecuting counsel, Mr Charles Kellett, offered no further evidence, and verdicts of not guilty were returned on the two counts of kidnapping and indecent assault. Costs were awarded against the CPS.

The plaintiff then commenced these proceedings on 6th August 1993, in which it is alleged that this was a malicious prosecution because the prosecution was not discontinued as it allegedly it should have been, after the proceedings in the Magistrates' Court.

3. The Judgment appealed from

The matter came before Judge Mellor and a jury at Norwich Crown Court in November 1996, and at the conclusion of the evidence the judge ordered that the jury be discharged and that the plaintiff's claim be dismissed.

4. Malicious Prosecution

It is common ground that in order to establish malicious prosecution a plaintiff must show not only that he was prosecuted and that the prosecution was determined in his favour, but also :-

(1) that it was without a reasonable and probable cause and

(2) that it was malicious.

5. Reasonable and Probable Cause

It is clear from the decision of this court in Elguzouli-Daf v Commissioner of Police for the Metropolis (1995) QB 335 that the Crown Prosecution Service owes no general duty of care in relation to the conduct of a prosecution. Mere negligence is not enough, and in the present case it is accepted that the prosecution was properly instituted. The substance of the plaintiff's complaint in these civil proceedings is that the prosecution should have been abandoned at or immediately after the hearing in the Magistrates' Court but his first difficulty, it seems to me, is that there is no evidence that the continuation of the prosecution after the hearing in the Magistrates' Court can be attributed to anything other than at the highest a want of care. It appears from the judgment of Judge Mellor that Mr Tomlinson and Mrs Pulsford-Harris, the two senior representatives of the CPS, both accepted that :-

(a) a review should have been conducted after the committal proceedings, in accordance with the Code for Crown Prosecutors, and -

(b) if such a review had been conducted it is likely that the prosecution would have been dis continued.

Judge Mellor clearly agreed. He said that the only options were to discontinue, to investigate further, or perhaps to tender the evidence of Mrs DC. At page 7F of the transcript he said :-

"It seems to me that once the evidence that was given at the committal was given any lawyer who considered the matter without negligence should have concluded, on the basis that KT and DC were both to remain witnesses for the Crown, that the case was bound to fail unless further evidence was forthcoming."

I respectfully disagree. It seems to me that at least since the committal proceedings far too much weight has been attached to the evidence of DC at the expense of the rest of the prosecution case, which on the face of it was persuasive, and worthy of serious consideration. It can be summarised as follows :-

(1) The complainant, KT, was consistent in the account which she gave and no one ever advanced any reason why she should have made these serious allegations against the plaintiff unless they were true.

(2) Her consistency was confirmed by her boyfriend, and her apparent veracity obviously impressed the investigating police officers and the Magistrates.

(3) When the plaintiff was arrested, a week after the alleged offence, his re-action was, to say the least, curious :

(1) he denied knowing KT, whom he knew well:

(2) he claimed that on the day in question he got to work at 8.45 am and remained there all day. Nothing was said about being out after 9 am collecting prescriptions.

(4) Next day KT said she recalled seeing prescriptions in the car. How could she have known that unless she was in the car herself? No one, as far as I am aware, has offered a satisfactory answer to that question.

(5) DC was not seen until 19 days after the alleged offence, and recalled then asking the plaintiff to collect prescriptions on his way to work. She thought he was at work by 9.45 am.

(6) Three days later the plaintiff was seen again. It seems at least possible that by then he knew what DC had said, and he volunteered that having gone to work at 9 am he had gone out to collect the prescriptions.

(7) DC's reference to the plaintiff being back in time to let the diabetic member of staff to go for his tea break at 9.45 am was only made at the Magistrates' Court, 4½ months after the alleged offence.

Even bearing in mind that the plaintiff is a man of entirely good character, in my judgment a responsible prosecutor might well take the view, as I would, that this was a case for a jury to decide. Having seen and heard the witnesses the jury might conclude that the complaint was reliable, and that DC was mistaken or possibly even lying as to the time at which the plaintiff returned to work on 2nd April 1992. Everything would depend on the assessment of the witnesses.

That conclusion is sufficient to dispose of this appeal, but in deference to the arguments advanced before us I propose to say a little more about reasonable and probable cause, and about malice.

Reasonable and probable cause for initiating (or continuing) a prosecution was said by Hawkins J in Hicks v Faulkner (1878) 8 QBD 167 at 171 to be :-

"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 proposition was approved by Lord Atkin in Herniman v Smith (1938) AC 305 at 316, but as Lord Denning pointed out in Glinski v McIver (1962) AC 726 at 758, it does not fit the ordinary run of cases, and cannot serve as a substitute for the rule of law which says that :-

"In order to succeed in an action for malicious prosecution, the plaintiff must prove to the satisfaction of the judge that, at the time when the charge was made, there was an absence of reasonable and probable cause for the prosecution."

Adapting those words to the circumstances of this case, in order to succeed the plaintiff must prove to the satisfaction of the judge that during the period in question, after the hearing in the Magistrates' Court, there was an absence of reasonable and probable cause for the prosecution. As Lord Denning emphasised, it is not necessary for the prosecutor in the person of a CPS lawyer or a police officer to believe in the guilt of the person accused, he has only to be satisfied that there is a proper case to lay before the court. "Guilt or innocence is for the tribunal and not for him". Somewhat to my surprise Miss Melanie Hall, for the CPS, sought to rely on the fact that the plaintiff was unable to point to any individual member of the CPS staff as having the requisite state of mind between 19th August 1992 and 25th November 1992. In my judgment that is simply an unmeritorious pleading point. The fact is that in May 1992, before criminal proceedings were commenced, the file was considered, first by Mrs Pulsford-Harris, the Senior Crown Prosecutor at Kings Lynn, and then by Mr David Tomlinson, Branch Crown Prosecutor for Norfolk. They both decided that there was a realistic prospect of conviction, and so the criminal proceedings were commenced. Thereafter, for the purposes of these civil proceedings, it seems to me to be clear that the conclusion reached by Mrs Pulsford-Harris and Mr Tomlinson at the outset remained the state of mind of the CPS until the start of the trial in the Crown Court, and it is nothing to the point that the plaintiff cannot identify the CPS lawyer, if any, who at any given time had responsibility for the plaintiff's case. The lack of identification is of significance in relation to the question of malice, but at the moment I am only dealing with the alleged absence of reasonable and probable cause.

Where, as here, it is conceded that the institution of criminal proceedings was justified, the plaintiff has a problem. In Timms v John Lewis & Co Ltd (1951) 2 KB 459 Lord Goddard CJ said at 742 :-

"It is quite easy to imagine a case in which a person was thoroughly justified in bringing proceedings, and then in the course of the case something comes to light which shows the prosecution to be in fact groundless. Then if the prosecutor insists on continuing the prosecution without at any rate informing the court of the facts which he has since discovered, he will, I think, possibly have no reasonable or probable cause for continuing the prosecution and at any rate will be guilty of malice."

Part of the plaintiff's problem in the present case is that the unidentified prosecutor plainly did not discover the change of circumstances now relied on. Lord Goddard went on to say :-

"The question of whether there was reasonable or probable cause is not, I think, to be determined subjectively, as has been suggested. It is a question which objectively the court has to decide on the evidence before it."

Lord Denning made the same point in Glinski at 760, saying that where, as here, the facts and information known to the prosecutor (if he or she had chosen to review the case) are not in doubt :-

"the judge should leave no question to the jury. He should take the undoubted facts and information and decide upon them himself. If, on considering them, he finds there was no want of reasonable and probable cause, he should dismiss the claim without more ado."

For the reasons already given I find that there was no want of reasonable and probable cause for continuing with the prosecution, and that is another reason why, in my judgment, the claim had to be dismissed.

6. Malice

In Glinski it was agreed that malice "covers not only spite and ill-will but also any motive other than a desire to bring a criminal to justice" (per Lord Devlin at 766). Here there is no evidence that any member of the CPS ever had any other motive, and although malice is for the jury rather than the judge, it is only to be left to the jury if there is some evidence of it (per Lord Devlin at 779). Mr Denyer submitted that the issue should have been left to the jury because in some cases malice can be inferred when a prosecution is launched or continued without reasonable and probable cause. That, as it seems to me, evolves some positive evidence of mala fides on the part of the prosecutor which is wholly absent in this case, and in any event, for the reasons I have already given, Mr Denyer's submission cannot succeed.

7. Conclusions

In my judgment :-

(1) in so far as any CPS lawyer was unaware of the full circumstances necessary to reach a judgment as to whether there was reasonable and probable cause to continue with the prosecution after the hearing in the Magistrates' Court his or her ignorance was not, on the evidence, attributable to any more than breach of duty and a failure to comply with the CPS Code of Practice out of which, in this class of case, no liability can arise.

(2) In any event there was in fact reasonable and probable cause for continuing with the prosecution.

(3) There was no evidence whatsoever of malice.

In those circumstances the judge was entirely right to enter judgment as he did and I would dismiss this appeal.

Judge LJ:

I agree with Kennedy LJ and the reasons he has given for dismissing this appeal.

There was ample evidence to justify the initiation and continuation of the prosecution against Mr BT. Having heard the complainant's oral evidence the committing justices found that there was a case for him to answer. Accordingly he was committed for trial. The propriety of the conduct of the CPS before that date is not impugned.

Thereafter counsel was instructed by the CPS and, instead of acting as he should have done, he failed to read his instructions until the morning of the hearing when, having read the brief, he elected to proceed and called the complainant to give her evidence. She reiterated her case that Mr BT had kidnapped and indecently assaulted her. In the meantime the Crown Prosecutors themselves did nothing to reconsider the papers, which admittedly contravened the Code for Crown Prosecutors. At the close of the case for the Crown counsel decided to offer no further evidence against Mr BT. The reason, in a nutshell, was that one of the witnesses called by the Crown, DC, provided Mr BT with an alibi. Without for one moment going behind his acquittal, notwithstanding her evidence, it remained open to the Crown to proceed with the case and invite the jury to convict on the basis either that the witness providing the alibi was wrong, or that the complainant, while inaccurate about her timing of the incident, had nevertheless been truthful in the substance of her evidence. For present purposes it is enough to note that in my judgment many counsel for the prosecution would, without derogating from their duty to act in a fair and dispassionate way, have concluded that the case should be considered by the jury, and many Crown Court judges, faced with a submission of no case to answer, would have rejected it.

The omission of a post committal review by the CPS probably demonstrated incompetence in the sense identified in El Guzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335. As a matter of principle however such negligence is not actionable and in my judgment this omission did not of itself provide the plaintiff with a prima facie case that there was no reasonable and probable cause for the continuation of the prosecution. To that extent I disagree with the judge, who nevertheless concluded that he could find no evidence of malice.

Before malice can be left to the jury there must be some evidence from which a jury properly applying its mind to the evidence would be entitled to infer it. If there is, the decision is for the jury. Evidence that the defendant lacked any reasonable and probable cause for continuing with the prosecution may of itself provide the necessary basis to enable the jury to consider malice, but this conclusion does not always follow, and it would be strange if it did. The question has to be decided in the light of the evidence in the individual case. In the present case the basis of the judge's finding that the defendant lacked reasonable and probable cause for continuing with the prosecution suggested not malice by anyone for whom the Crown Prosecution Service could be held responsible, but an unintended fault of omission. The judge concluded that there was no evidence of malice and I agree with him.

My final observation is not intended as a criticism of the plaintiff's legal advisors in the present case who began these proceedings before the decision in El Guzouli-Daf . Prosecutors or employees of the Crown Prosecution Service are not immune from actions for malicious prosecution. Nevertheless it is essential that before such actions are supported by legal aid, or allowed to be pursued through the Courts, anxious scrutiny should be made of them to ensure that the immunity against actions for negligence acknowledged in El Guzouli-Daf is not circumvented by the pleading device of converting what in reality are no more than allegations of negligence into claims for damages for malicious prosecution.

Chadwick LJ: I agree that this appeal must be dismissed. It is because I share the concern of Judge LJ that claims against the Crown Prosecution Service in respect of conduct that may properly be regarded as negligent or incompetent, but which contains no element of malice, should not be brought under the guise of malicious prosecution that I add some observations of my own.

In Elguzouli-Daf v Commissioner of the Police for the Metropolis [1995] QB 335 this Court held that there were reasons of public interest which compelled the conclusion that Crown Prosecutors did not owe a duty of care to those whom they prosecuted. In reaching that conclusion Steyn LJ referred to the other protections and remedies that were available to a person who had been prosecuted wrongfully. At page 347A-B he said this:

Turning to private law remedies there is first of all the tort of malicious prosecution. In order to succeed in such an action the plaintiff must prove that the prosecution failed, that there was no reasonable or probable cause for the prosecution and that the defendant was actuated by malice.

The present case seems to me to present a clear example of an attempt to circumvent the decision in Elguzouli-Daf by seeking to found a claim in malicious prosecution on conduct by some member or members of the Crown Prosecution Service which may well have been negligent or incompetent, but which cannot be shown to have been actuated by malice. The attempt must fail. It is based on a failure to appreciate the proper relationship between the second and third elements in the tort of malicious prosecution, both of which the plaintiff must prove if he is to succeed.

Lord Radcliffe considered the second element - lack of reasonable and probable cause - in Glinski v McIver [1962] AC 726 at page 753. He regarded as settled law two propositions: (i) that if the defendant can be shown to have initiated the prosecution without himself holding an honest belief in the truth ofthe charge he cannot be said to have acted upon reasonable and probable cause (notwithstanding that there might well exist reasonable and probable cause in the objective sense) and (ii) that the mere belief in the truth of his charge does not protect an unsuccessful prosecutor (given, of course, malice) if the circumstances before him would not have led "an ordinarily prudent and cautious man" to conclude that the person charged was probably guilty of the offence. As Lord Radcliffe pointed out, at page 754:

. . . while the state of the prosecutor's mind or belief or opinion, if a disputed issue, is a question of fact to be left to the jury, the question whether the circumstances reasonably justified a belief in the truth of the charge is a question for the judge himself to decide . . .

Both Lord Radcliffe, in the immediately following paragraph of his speech, and Lord Denning, at page 760, were careful to point out that where the only evidence as to the state of the prosecutor's mind is the fact that he decided to prosecute (or to continue the prosecution) on the facts and information which were before him - and there is no dispute as to what those facts and that information were - thenthe state of the prosecutor's mind is not a question which should be left to the jury. Lord Radcliffe explained the position in these words, at page 754:

To put a question to the jury as to the defendant's state of mind when it is only to be deduced by inference from the alleged feebleness of the case, is, I think, to put to them indirectly exactly the same issues as the judge himself has to decide directly when he rules that there is or is not an absence of reasonable and probable cause. . . . In my opinion it [the jury question as to the defendant's belief or lack of belief] does not arise unless there is some contested evidence bearing directly upon the defendant's belief at the relevant date, apart from anything that could merely be inferred as to his belief from the strength or weakness of the case before him.

There is a passage to the same effect in the speech of Lord Devlin at page 768.

The present case was one in which there was no evidence as the state of mind of any person who could be identified as having responsibility for the decision to continue the prosecution after the committal proceedings, other than whatever could be inferred from the fact that the prosecution continued on the basis of the material which was available. In those circumstances the second element - lack of reasonable and probable cause - was not a question which could be left to the jury. It was for the Judge to ask himself the question whether the material which was available could reasonably justify a decision to continue the prosecution. He held that it could not. It followed that he held that there was no reasonable and probable cause for continuing the prosecution.

Both Kennedy LJ and Judge LJ have expressed their view that the Judge was wrong to reach the conclusion that the material available to the Crown Prosecutor (whoever he or she may have been) could not reasonably justify a decision to continue the prosecution. I accept their analysis of the position. It leads, necessarily, to the conclusion that the plaintiff's claim in this action must fail; and that this appeal must be dismissed. It leads, also, to the conclusion that the Judge would have been wrong (had he done so) to put the question of malice to the jury. On the true analysis of the position that question never arose.

Nevertheless, it is, I think, pertinent in the present context to go on to consider the position on the basis that the Judge was right in his conclusion that:

once the evidence that was given at the committal was given, any lawyer who considered the matter without negligence should have concluded, on the basis that KT and DC were both to remain witnesses for the Crown, that the case was bound to fail unless further evidence were forthcoming.

It is important to keep in mind that that was a finding of lack of reasonable and probable cause based on assumed negligence or incompetence. It was not a finding that any individual Crown Prosecutor decided to continue the prosecution in the absence of an honest belief that there was a proper cause to do so. The finding is consistent with the existence of an honest but unreasonable belief. That is a likely conclusion in most cases where the only evidence as to the prosecutor's state of mind is the fact that he or she decided to prosecute on the basis of the facts as known; so that there is no direct evidence on that question which can be put before the jury.

The problem for the plaintiff in such a case is that he still has to prove malice - the third element in the tort of malicious prosecution. The Judge addressed that problem in the present case in the following passage of his judgment:

It follows that the only issue that arises in this case under this head is as to whether there is evidence of malice to go to the Jury. To succeed there, the plaintiff must show that a desire to secure the ends of justice was not the predominant motive of at least one of the Crown Prosecution Service employees involved in taking steps to progress the prosecution following the committal. There is in this case no evidence whatsoever of any alternative identifiable motive, and accordingly the question remains as to whether there is evidence from which that negative proposition could be found as a probability.

The Judge held that there was no evidence from which it could be found as a probability that any member of the Crown Prosecution Service was not motivated by a predominant desire to secure the ends of justice. In particular, that that was not an inference which could properly be inferred from the facts which could be put before the jury. I agree with Kennedy LJ and Judge LJ that the Judge was correct to take that view. A finding that the prosecution was commenced, or continued, without reasonable and probable cause, if based on a finding by the jury that the prosecutor did not himself hold an honest belief in the truth of the charge - see the first of Lord Radcliffe's two propositions in Golinski v McIver [1962] AC 726,753 - may lead to a conclusion that the prosecutor was actuated by malice. But a finding of lack of reasonable and probable cause which is consistent with the existence of an honest but unreasonable belief cannot, of itself, lead to that conclusion. The point was considered by this Court in Brown v Hawkes [1891] 2 QB 718. Kay LJ said this, at page 728:

As I understand the argument for the plaintiff, it was said that the evidence to prove malice was that the defendant did not make proper inquiry as to the facts of the case. If that is all, and if that evidence is sufficient, the result would be that the finding on the first question put to the jury, that the defendant did not take proper care to inquire into the facts of the case, would, without more, determine the action in favour of the plaintiff. That cannot be so, . . .

The fact that someone in the Crown Prosecution Service may have been negligent or incompetent in the course of reaching a decision to commence or to continue the prosecution - whether by failing to evaluate the evidence correctly at the outset, or in failing to review the evidence after committal or in the light of new material - cannot, in itself, justify an inference of malice. If that is all the evidence that there is, the question of malice cannot be left to the jury. It is because, in many of these cases, that that will be all the evidence there is, an attempt to dress up a claim in respect of negligence or incompetence in the guise of malicious prosecution must fail.

Order: Appeal dismissed; order nisi against the Legal Aid Fund with nil contribution; legal aid taxation of appellant's costs.

(Order not part of the judgment of the court)