England and Wales Court of Appeal (Civil Division) Decisions

You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Matin v Commissioner of Police of the Metropolis [2002] EWCA Civ 907 (20 June 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/907.html
Cite as: [2002] EWCA Civ 907

[New search] [Printable RTF version] [Help]

		Neutral Citation Number: [2002] EWCA Civ 907
		Case No: A2/2001/1467

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
(Mr Justice Garland)

Royal Courts of Justice
Strand,
London, WC2A 2LL

20th June 2002

B e f o r e :

THE PRESIDENT
LADY JUSTICE HALE
and
MR JUSTICE HART
____________________

Between:

	ABDUL MATIN	Appellant
	- and -
	THE COMMISSIONER OF POLICE OF THE METROPOLIS	Respondent

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

The Appellant appeared in Person
Ms Fiona Barton (instructed by Bircham Dyson Bell) for the Respondent
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Dame Elizabeth Butler-Sloss, P.:

This is a second tier appeal by leave of this Court given on the 11^th October 2001. The action has not yet come to trial. The appeal before us arises from the application by the defendant, the Commissioner of Police for the Metropolis who is respondent to this appeal, (the respondent), for summary judgment against the claimant, Mr Matin, who is the appellant. The appellant, who is acting in person, issued proceedings on the 7^th June 2000, claiming damages for wrongful arrest on the 12^th May 1999, an improper search of his home and seizure of documents following the arrest, conspiracy and malicious prosecution. The application for summary judgment, pursuant to CPR 24.2 on the ground of no real prospect of success, was made to Master Trench. After a two day hearing, on the 12^th February 2001 Master Trench struck out the claims for wrongful arrest, false imprisonment and malicious prosecution and left alive the claim for trespass. The appellant appealed to Garland J who, on the 18^th June 2001, restored the claims for wrongful arrest and conspiracy. He did not restore the claim for malicious prosecution upon which the appellant sought the permission of this Court to appeal.

On the 11^th October 2001 permission to appeal was given on the without notice application of the appellant, on the limited ground identified in the judgment of Ward LJ

“The point of law which would be argued if the appeal is to be permitted to go forward would be, in a nutshell, that if the prosecutor lacked an honest belief in the guilt of the accused then that would justify the matter going to the jury because it would undermine the reasonableness of the belief in the probable outcome of the prosecution.

…..If there is evidence of malice, is that as a matter of law a reason for the judge leaving it to the jury to decide the question of reasonable and probable cause. That, in my judgment, is arguable and very hesitantly I agree that there is compelling reason why that should be argued.”

History

The events which gave rise to these proceedings originate in a dispute between the appellant and other members of a charitable association, the North London Sylhety Community and Welfare Association, (the Association). It was formed on the 5^th July 1995 and became a company limited by guarantee. The appellant was involved in its creation and became Company Secretary and responsible for the banking arrangements. The Chairman was Fakarul Islam whose son, Tajul Islam, was a special constable. One of the Directors was Helal Uddin, and Abdul Mannin was Vice-Chairman. As Garland J put it graphically, ‘the seeds of the falling out lie in the purchase of a minibus in May 1998.’ It was the appellant’s case that he lent £1,050 towards the price of the minibus and a cheque for that amount was drawn on the appellant’s Abbey National account in favour of A Rahim, Helal Uddin’s cousin. There is a dispute whether that money was intended to be taken by Mr Rahim who was going to Bangladesh and wished to avoid bank charges for transferring funds or was for the purchase of the minibus. A further sum of £376.04 was claimed by the appellant as expenses owed to him by the Association. In support of his claim to be owed a total of £1426.04, representing these two sums, the appellant relied upon a document described as a ‘Resolution’ dated the 15^th June 1998. This document was, according to him, drawn up following a general meeting of the Association on the 14^th June. It identified the indebtedness of the Association to him and at the foot of the document there were four signatures: Fakarul Islam, Abdul Mannan, Helal Uddin and the appellant. Mr Uddin asserted in a statement to the police that the signature, Helal Uddin, on the ‘Resolution’ was not his and he had no knowledge of the loan or the expenses.

On the 20^th November 1998 Fakarul Islam, as Chairman of the Association, wrote to the appellant, heading the letter, “Re Misconduct in handling the management and misuse of responsibility of the Ivy Hall and NLSW Assoc." setting out a series of allegations and concluding

“On the basis of the above charges, I hereby suspend you from the post of voluntary secretary and demand that you return the Assoc books, accounts, cash, papers and any other materials belonging to the Assoc. I also demand that you return the key immediately. Your reinstatement shall be considered after the hearing takes place.”

The 23^rd November 1998

The incident which was the starting point of these proceedings occurred on the 23^rd November when the appellant went at about 9.20am to the National Westminster Bank in the Seven Sisters Road and presented a cheque for £1,426,04 drawn on the Association’s account to the bank. There were two signatures on the cheque, that of Fakarul Iskam and the appellant. The cheque was made out to A. Matin. The bank version of events was that the appellant asked for cash and was told by the cashier that the cheque would have to be altered and re-presented with the alteration to cash signed by both signatories. The cashier and the Manager were aware of difficulties between the Chairman and the appellant. The appellant left the bank with the cheque and returned a few minutes later with a signature to the alteration. He said that he had met Mr F Islam in the street. The Manager decided to contact Mr Islam by telephone and was told by Mr Islam that he had not signed the cheque nor confirmed any change of payee. The appellant left the bank during the telephone conversation leaving the cheque behind. Later in the morning Mr Islam attended at the bank and confirmed to the manager that he had not signed the alteration to the cheque.

The appellant’s account of 23^rd November

He attended the bank where the Association account was held. He presented the cheque made out to him with the authorised signatures of himself and the chairman, Mr Islam. When he was told that the cheque could not be cashed without altering the payee to cash and without authorisation of both signatories to the alteration, he left the bank and went to find Mr Islam who lived close by. He found him returning to his house with a loaf of bread in his hand. Mr Islam signed the cheque to authorise the alteration to cash and the appellant returned to the bank with the intention of cashing the cheque. When there was a delay as a result of the intervention of the bank manager, he left the bank because he was in a hurry since he had to be at court for 10.30am.

Subsequent events

On the 30^th November Fakarul Islam wrote again to the appellant asking for the return of the cheque book and keys, asserting that the minibus had been paid for by the Association and that the appellant’s claim was fraudulent. The appellant set out his refutation in, as Garland J expressed it, ‘strong and colourful language’. He alleged ‘criminal conspiracy and devious plot’ among members of the Association in relation to the allegation that he had changed the locks at Ivy Hall. On the 13^th December Fakarul Islam wrote formally dismissing him as Secretary and asking for the return of documents and keys.

Police investigation

Mr Fakarul Islam made a witness statement to the police on the 23^rd December 1998 but has since died. His widow made a witness statement on the 16^th June 1999 in which she said that her husband had not left home until 10.30 am following the telephone call from the bank which was long after the appellant had left the bank for the second time. The time of 10.30 am was clearly incorrect. It appears from the statements of Mr Islam and Mr Uddin that, after the Bank Manager telephoned the Chairman, he telephoned Mr Uddin who went to Mr Islam’s house. Together they went to the bank. A CCTV video showed them entering the bank at 9.54 am.

The bank did not treat the presentation of the cheque as a criminal matter although Mr Islam reported it to the police, and his son, Tajul Islam, was in touch with the investigating officer. In January 1999 the bank told the police that they regarded the matter as a civil dispute and would not release the documents, including the cheque. On the 10^th February 1999 Mr Islam died and the police were informed of his death by his son. The police at that stage took the matter no further and on the 10^th February D.I. Pink wrote to the appellant that it was not a matter suitable for investigation by the police. In April 1999 the bank agreed to release the documents and DC Gravestock took over the investigation. He received the cheque and CCTV video from the bank on the 5^th May. He viewed the video with Mr Tajul Islam and Mr Uddin on the 11^th May.

Libel proceedings/arrest of appellant

The appellant issued proceedings for libel on the 12^th January 1999 against the Chairman, Mr Islam, and 8 other members of the Committee of the Association who were looking into the allegations made against him in the Chairman’s letters. He obtained judgment in default in the libel action and the defendants applied to have the judgment set aside. The application was listed before Master Eyre for 10.30 on the 12^th May 1999. On the arrival of the parties the case was adjourned until 2.00 pm. On leaving the Master’s room, the appellant was arrested by DC Gravestock who was aware that the appellant would be at the Royal Courts of Justice for the application before the Master. After the arrest the appellant was taken to his home which was searched and documents removed. He was then interviewed and was unable to attend the adjourned hearing at 2.00 pm. Master Trench in his judgment was satisfied that Mr Tajul Islam was pressing the bank to release the documents and that probably the police officer resuscitated the police intervention at the request of the Islam family and learnt of the appointment before the Master from them.

Handwriting expert

Further witness statements were taken and the cheque dated the 23^rd November 1998 was examined by a handwriting expert. His report was dated the 26^th November 1999 and his conclusion was

“There is strong evidence to support the proposition that the two questioned signatures in the name of Fakarul Islam on the cheque are not genuine signatures by him but are fairly proficient simulations of his signature. The evidence as to whether or not these were produced by Abdul Matin is inconclusive.”

The prosecution

DC Gravestock had discussed the case in October 1999 with Hugh Sheppard, a barrister employed by the Crown Prosecution Service and on the basis of the information supplied to him, Mr Sheppard advised that there was sufficient evidence to prefer a charge of attempting to obtain by deception and forgery, if it was felt to be appropriate. On the 15^th December 1999 the appellant was charged with attempting to obtain property by deception. The case was due in court on the 3^rd March 2000 but the Crown Prosecution Service decided to discontinue it on the 28^th February. The confirmation of discontinuance set out the reasons for the conclusion that there was not enough evidence to provide a realistic prospect of conviction in the following terms.

“There are a number of significant features in this case (see memo dated 7.1.2000)

1. The unexplained reason for the cheque and the circumstances in which it was written.

2. The incongruous nature of the level of preparation required to forge minutes compared with the inept deception.

3. The fact that a set-up is alleged by the defendant when there was a clear opportunity for collusion.

4. The fact that the case boils down to the disputed Islam signature. His statement would not be admitted because of the need to cross-examine.

I note the last paragraph of your MG20 dated 9^th February 2000. This case should not have been dealt with by charging after oral advice when the oral advice was given at such an early stage.”

Appeal Hearing before Garland J

Under the heading ‘Malicious Prosecution’, the judge correctly set out the requirements of the tort and considered whether the issue of lack of reasonable and probable cause was arguable or did it have no real prospect of success. He looked at the evidence available to the prosecutor at the time the appellant was charged on the 15^th December 1999. He pointed out that there were considerable problems in relation to admissibility of much of that evidence. He concluded

“In my view, the handwriting expert’s evidence, in the narrative context of how the cheque came to be drawn and the attempt to negotiate it, supplies reasonable and probable cause. There is, accordingly, no real prospect of an allegation of Malicious Prosecution succeeding. I have considered the expressed reasons for discontinuance. They appear to reveal an entirely pragmatic approach based on the possible reactions of a Jury to internecine strife in the NLSC&WA, the drawing of a cheque in favour of Helal Uddin’s cousin, the endorsing of a cheque for a slightly different amount to the claimant so that he could draw cash for the minibus, the circumstances of the drawing of the disputed cheque and whether or not the Resolution was genuine. A realist could be forgiven for thinking that a Jury might return a verdict which expressed the view “a plague on all your houses! ”

The judge allowed the applications of the appellant to reinstate the claims for false arrest and conspiracy, although he considered that the appellant’s pleading required substantial amendment. Since those claims fall to be decided at the trial it is not necessary for me to set out a considerable number of other facts surrounding this convoluted and extremely acrimonious dispute between the appellant and other members of the Association. Despite the understandable wish of the appellant to range widely over many issues, the limited permission to appeal granted to him makes a recital of further facts unnecessary for the appeal before this court.

The law of malicious prosecution

In an action for malicious prosecution the onus of proof is upon the claimant who pleads the tort. The first two of the four essentials to a successful action for malicious prosecution are that the appellant was prosecuted by the respondent and that the prosecution was determined in his favour. That is the position in this case. The third requirement is that the prosecution was without reasonable and probable cause, and the fourth that it was malicious. In Herniman v Smith [1938] AC 305, Lord Atkin approved the definition of reasonable and probable cause by Hawkins J. in Hicks v Faulkner [1878] 8 QBD 167 at page 171

“An honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.”

The fourth issue is one for the jury, but the third is a matter of fact and law for the judge with the assistance of the jury who may be asked to find relevant facts which are in dispute. In Glinski v McIver [1962] AC 726 Viscount Simonds said at page 742

“…..such difficulty as there is in the correct statement and application of the law as to want of reasonable and probable cause, arises from the fact that, while it is for the judge to determine (whether as fact or law) whether there was such want, it is for the jury to determine any disputed facts which are relevant to that determination….”

Further difficulty may arise in the interaction between malice and want of honest belief. Viscount Simonds defined the relationship between the two elements at 744

“…..though from want of probable cause malice may and often is inferred, even from the most express malice, want of probable cause, of which honest belief is an ingredient, is not to be inferred.”

He continued at page 744

“It is, of course, possible that the same facts may justify both findings. But it behoves the judge to be doubly careful not to leave the question of honest belief to the jury unless there is affirmative evidence of the want of it.”

Want of reasonable cause is not therefore to be inferred from malice and if there was no evidence of want of honest belief nor any other evidence of want of reasonable or probable cause for the prosecution, the question should not be left to the jury.

The question also arises as to how far a prosecutor should investigate the possible defence to the facts upon which he has formed the honest belief that it would be reasonable to prosecute. Viscount Simonds in Glinski v McIver said at page 745

“ A question is sometimes raised whether the prosecutor has acted with too great haste or zeal and failed to ascertain by inquiries that he might have made facts that would have altered his opinion upon the guilt of the accused. Upon this matter it is not possible to generalise, but I would accept as a guiding principle what Lord Atkin said in Herniman v Smith [1938] AC 305, that it is the duty of a prosecutor to find out not whether there is a possible defence but whether there is a reasonable and probable cause for prosecution.”

In the present appeal, the case has not yet been heard and we are still at the preliminary stage of an application for summary judgment. The issue has therefore to be considered in the light of the evidence which has not yet been tested. But the relevant time for consideration of the evidence available upon which the prosecution was launched was the 15^th December 1999.

Submissions of the appellant

The appellant’s arguments to this court were that the entire case, including the prosecution was a wicked conspiracy and the prosecution a ‘put up job’. He based his oral argument to us on further written submissions which he helpfully provided to us at the end of the hearing. The points he made amounted in his view to a credible case that there was a lack of reasonable and probable cause for the unsuccessful prosecution. The judge had not scrutinised his defence where the answers to the allegations had been set out and was wrong to say he would not succeed. The police officer had manufactured the case for his own purpose and fraudulently arrested him for forgery and deception. The case was overwhelming that the appellant had been framed. The case in respect of conspiracy and malicious prosecution were intertwined and could not be separated. His points can be summarised under a number of headings.

a. The statements of Fakarul Islam and his widow.

In his statement of the 23^rd December 1998, Mr Islam did not allege either forgery or deception in respect of the cheque presented to the bank on the 23^rd November. Garland J ignored the absence of an allegation of forgery. There were obvious contradictions in the evidence of Mr Islam and that of Helal Uddin about the date when the appellant was dismissed as secretary of the Association. He was not dismissed until the 13^th December although it was said that he had been dismissed as early as August. Mr Islam had no authority to seek the return of the cheque book. He had died in February 1999 and his statement was inadmissible and unreliable but this was ignored by the police officer. The widow was lying when she said that her husband did not leave the house before 10.30 am on the 23^rd November when the video showed that he was at the bank at 9.54 am. This was known to the police officer. It was clear to the prosecution that the evidence of the Islam family was not to be relied upon and the police officer continued with the investigation after he had knowledge of the countervailing information.

b. Evidence of other members of the Association

The other witnesses impeached their characters, by concealing the truth, committing perjury and conspiring with the police officer. They contradicted each other. The police officer was selective in the statements he relied upon and none of the statements alleged forgery or deception. The perjury of the witnesses was known to the police at the time of prosecution and should be placed before the jury. Mr Uddin’s statement that the minutes of the meeting (the ‘Resolution’) were false and that it was not his signature at the foot of them was a perjured statement and the police officer knew that evidence was not reliable. The appellant had told him that it was not reliable. The statement of Mr Uddin to the police and his affidavit in the libel proceedings were inconsistent. The video of the arrival of Mr Islam and Mr Uddin to the bank on the 23^rd November was viewed by Mr Islam’s son, Mr Uddin and DC Gravestock but the statement of the police officer did not identify Mr Islam.

c. Bank evidence

The bank considered this was a civil dispute. It had not wished to become involved. This was known to the prosecution. There were inconsistencies and concealment of the truth in the statements of the bank manager and the bank clerk. For instance the bank manager said that Mr Islam had told him that he had not signed the cheque, but Mr Islam did not say so in his statement. The bank manager’s statement was made after there had been a complaint about the bank.

d. Handwriting expert

The handwriting expert made no reference to the context of how the cheque came to be drawn. He merely analysed a limited number of signatures of Fakarul Islam when a much larger number were available to the police officer. The appellant had asked for the expert to see further examples of handwriting. The information supplied was insufficient for the expert to come to a conclusion. He did not blame the expert who was misled by the deliberately selected examples shown to him. The expert had been told of the allegations of forgery before he made his analysis. The report was further evidence of the dishonesty of the police officer. Garland J was wrong to rely upon the report of the handwriting expert since there was countervailing information. The similarity of the handwriting was not sufficient without other evidence to show forgery, and he relied upon Clements v Ohrly (1847) 2 C & K 686.

We were shown a file of numerous signatures including those of Mr Islam, but we declined to be drawn into expressing views on similarities or dissimilarities of handwriting.

e. Crown Prosecution Service

D.I. Pink had been satisfied that this was a civil dispute and not a suitable matter for the police to prosecute. That was known to D.C. Gravestock when he initiated the prosecution. The affidavit of Hugh Sheppard of CPS was based upon a dishonest and misleading summary of the facts by DC Gravestock who had attempted to hoodwink the CPS. He relied upon the grounds of the discontinuance of the case.

f. Malice

Malicious motive is sufficient for want of reasonable and probable cause. The issue of want of honest belief ought to be put to the jury at the trial. He relied also upon the fact that the reactivated investigation was at the instance of the Islam family when other police officers had declined to take the matter further. He also relied upon the circumstances of his arrest on the 12^th May during the civil proceedings as further evidence of dishonesty in the prosecution.

Case for respondent

Miss Barton, for the respondent, accepted that the facts were intertwined but the appellant was relying upon different causes of action. The question of honest belief should only be left to the jury in cases where there was clear evidence of want of honest belief. She set out the salient points upon which the respondent relied to rebut the case raised by the appellant.

The evidence at the relevant date was that the appellant went to the bank twice attempting to cash the cheque. He said he met Mr Islam after the first visit and Mr Islam signed the alteration whereas the handwriting expert said it was not his signature. The handwriting evidence was crucial. If there had not been sufficient evidence upon which the handwriting expert could form an opinion he would have said so and refused to give an opinion. It was not for the accused to tell the prosecution what evidence to send to the expert and after the death of Mr Islam it was impossible for DC Gravestock to check the authenticity of the signatures proffered by the appellant. The expert’s conclusion was that the signature on the cheque was not Mr Islam’s signature. There was also the evidence of the telephone call from the bank to Mr Islam who did not go out until after the call, the statement of Mr Uddin that he had a telephone call from Mr Islam and went to collect Mr Islam and they went to the bank together about 9.45 am supported by the CCTV video showing their arrival at 9.54 am. Since the DC did not know Fakarul Islam he was unable to give hearsay evidence by identifying him in his statement. It was not up to the DC to check the credibility of the witnesses; that was a matter for the trial process. The figures and the dates for the payment of the van did not coincide. These facts put together were sufficient for a prima facie case. The test for the appellant was to show a want of honest belief. A police officer can be malicious provided he believes that there is reasonable and probable cause to prosecute.

Conclusions

The facts of this case are complicated and hotly disputed. They are set against a background of accusation and counter-accusation and high emotion. It is a sad story following on from the excellent charitable intentions of the founders of the Association. The allegations made by the appellant, based on a conspiracy to frame him, permeated the picture drawn by him and formed part of all the claims he seeks to present to a jury in his civil proceedings. Nonetheless the facts which form the alleged conspiracy can be divided into different and discrete claims as the appellant has sought to set out in his pleadings. Malicious prosecution is a separate tort with its special requirements which are unlike the other claims raised by the appellant. It is clear that the first two essentials, a prosecution by the respondent which was unsuccessful, are met in this case. The issue of malice was said by Garland J to be arguable and was clearly a matter for the jury. The issue of want of reasonable and probable cause and whether the prosecutor lacked an honest belief in the prosecution are matters which are not, in my view, so intertwined that the judge, whose task it is, cannot disentangle them from other parts of the case.

I agree with Garland J that the statement of the handwriting expert provided reasonable and probable cause for the initiation of the prosecution. The expert’s report set out that there was strong evidence to support the proposition that the two signatures on the cheque were not the genuine signatures of Fakarul Islam. The old case of Clements v Ohrly to which the appellant has referred the Court does no more than to state that similarity of handwriting alone is not enough to constitute probable cause for charging a person with forgery without evidence of other circumstances (per Lord Denman CJ at page 689). But the present state of expertise is much better than in 1847, and in any event the respondent was not solely reliant on the handwriting expert’s evidence. Although there were problems of admissibility of other evidence which might at trial prove insoluble, the other facts set out by Miss Barton to which I refer above, taken together with the evidence of the handwriting expert, supported the case for the respondent. I agree with the judge that the issue of admissibility was not a complete bar to reliance on the evidence for the purpose of initiating the prosecution.

The appellant has alleged that members of the Committee of the Association lied, perjured themselves and conspired to frame him. He asserted that he was telling the truth and the others were obviously lying. As was pointed out by Lord Atkin in Herniman v Smith (referred to above) the prosecutor did not have to test all the facts or the strength of the defence. Despite the arguments of the appellant and his careful analysis of the discrepancies and inconsistencies in the evidence, the conflict in the accounts of the appellant and members of the Association was not capable of resolution before trial. Once the evidence of the handwriting expert was available, the other evidence relied upon by the prosecutor gained some credibility. I agree with Garland J that the grounds upon which the discontinuance was based were sensible and pragmatic and did not disclose any want of reasonable and probable cause.

The fact that there might be an arguable case that the prosecutor was activated by malice, that is to say, to prosecute for an improper motive, does not of itself demonstrate a want of honest belief that there was reasonable and probable cause to mount the prosecution. On the hearing of the permission to appeal, Ward LJ raised the question, which I set out above, whether evidence of malice was a reason for the judge leaving to the jury the question of reasonable and probable cause. They are, in my view, two different questions and want of reasonable and probable cause cannot be inferred from evidence of malice. Malicious motives may coexist with a genuine belief in the guilt of the accused. Viscount Simonds said in Glinski v McIver (above) that it was possible that the same facts might justify both findings but the judge had to be doubly careful not to leave the question of honest belief to the jury unless there was 'affirmative evidence of the want of it'. To my mind no evidence has been presented to us upon which a judge might rely in support of a 'want of honest belief' by the prosecutor in this case. Consequently I can see no reason why this question should be posed to the jury and agree with Garland J that the action for malicious prosecution has no real prospect of success.

I would dismiss this appeal.

Lady Justice Hale

I agree for the reasons given by my lady, the President, and my Lord Mr Justice Hart that this appeal should be dismissed.

Mr Justice Hart

I agree with the judgment of my Lady, the President, which I have seen in draft.

The answer to the point of law identified by Ward LJ is clearly given in the speeches in Glinski v McIver [1962] AC 726. In the tort of malicious prosecution, it is for the judge to decide whether there was want of reasonable and probable cause for the prosecution. The honesty of the prosecutor’s belief in the existence of reasonable and probable cause is an essential ingredient of that concept and should be left to the jury to determine if, but only if, there is some affirmative evidence of lack of it (see per Viscount Simonds, with whom Lord Reid agreed, at p.744, Lord Radcliffe at pp.753-754 and 755, Lord Denning at p.760, and Lord Devlin at pp.768 and 779.). Evidence of malice does not itself allow the inference of lack of honest belief to be drawn ( see per Viscount Simonds at p.744, Lord Radcliffe at p.757, Lord Denning at p.762, and Lord Devlin at 780).

For the reasons given by my Lady, I agree that there is no evidence before the Court which would make it proper in this case to leave the question of lack of honest belief to the jury, and that Mr Matin has not established any objective want of reasonable and probable cause. The question I have found more difficult is whether this plea should be struck out at this stage, given that the action is in any event proceeding to trial on the issues of wrongful arrest and conspiracy. The facts relevant to those issues are, however, distinct from those relating to the plea of malicious prosecution. In particular they relate to the events surrounding the arrest of Mr Matin in May 1999. Further investigation of those facts, either as a result of pre-trial process or at trial itself, may provide further material for Mr Matin’s case on the malice of the prosecution. It is, however, fanciful to suppose that some distinct evidence of lack of honest belief on the part of the prosecutor in December 1999 might emerge from that investigation. All that is realistically likely to be available on that question is already before the court and it is not, in my judgment, enough.

Order: appeal dismissed with costs; costs order below to stand; respondent's application for immediate detailed assessment of the costs of the appeal refused; application for permission to appeal to the House of Lords refused.

(Order does not form part of the approved judgment)