England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAMBRIDGE COUNTY COURT
(His Honour Judge O'Brien)

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/02/2009

Lord Justice Richards :

1. In December 2004 the appellant, a police constable serving with the Lincolnshire Police, was the driver of a police car involved in a police pursuit which ended when the pursued vehicle crashed, killing a passenger in the vehicle. Most of the pursuit took place in Lincolnshire but the accident happened just over the county border in Cambridgeshire. An investigation carried out by the Cambridgeshire Police under the management of the Independent Police Complaints Commission ("the IPCC") led to the appellant being arrested on suspicion of causing death by dangerous driving and in due course being charged with that offence, but the prosecution was subsequently discontinued. The appellant then brought a claim against the Chief Constable of Cambridgeshire Police for false imprisonment and malicious prosecution. That claim was dismissed by His Honour Judge O'Brien following a four-day trial.
2. This appeal is brought against the dismissal of the claim. The main issues in the appeal are whether the judge was wrong to find (1) that there were reasonable grounds to suspect that the appellant had committed the offence, and (2) that the prosecution was brought with reasonable and probable cause. They involve mainly factual questions, but there is also a point under (1) about the position in law if, although the arresting officer has reasonable grounds to suspect, the officer who briefed him has failed to provide him with relevant information that would undermine those grounds. In the event that the judge's finding on (2) is reversed, there is a further issue, raised by a respondent's notice, as to the judge's finding on the question whether the prosecution was brought with improper motive.

The facts

3. At about mid-day on 23 December 2004 the appellant and his passenger, PC McCulley, were on duty in a marked police car. They saw a white Cavalier car driven, as was later found, by Ambrose Farrell and in which Gareth Moore was travelling as a passenger. The appellant flashed his lights to indicate to Mr Farrell that he wanted him to stop. Mr Farrell, however, drove off at speed and a pursuit ensued. The pursuing officers did not know whether the occupants of the Cavalier had committed any criminal offence, though it seems that the vehicle was suspected of having been involved in an earlier incident, and in the course of the pursuit the officers were informed that the vehicle had not been taxed.
4. The pursuit, which lasted just over eleven minutes, was filmed on video by a camera in the police car, and there was also an audio recording of exchanges between the officers and their central control. The pursuit took place in part through built-up areas and in part on open rural roads, at speeds that reached a maximum of 113 mph. There was a considerable amount of traffic on the road, in both directions, and the pursuit involved both cars in numerous overtaking manoeuvres. On occasions the police car got very close to the Cavalier, whilst at other times the distance between them was greater and there were also some vehicles between them. The pursuit ended when Mr Farrell lost control of the Cavalier and it crashed off the road, killing Mr Moore. At that point the police car was several hundred yards behind, with other vehicles between them.
5. Mr Farrell was arrested and was subsequently charged. In due course he pleaded guilty to causing death by dangerous driving and was sentenced to five and half years' imprisonment.
6. Because of the involvement of police officers, the incident was referred to the IPCC by the Lincolnshire Police. It was initially expected that the same force would conduct the investigation under the supervision of the IPCC. It therefore commissioned one of its traffic experts, Police Constable Parker, to prepare a report on the incident.
7. On 20 January 2005, however, the IPCC decided that it should manage rather than supervise the investigation, so as to exercise an increased level of control over it, and that the investigation should be conducted by the Cambridgeshire Police as an independent force. The officer put in charge of the investigation was Detective Superintendent Hankins; his number two in the team was Detective Chief Inspector Joyce; and his number three was Inspector Etherington.
8. The Cambridgeshire Police commissioned a report from a traffic expert in their own force, Police Constable Price.
9. On 3 February 2005, before a report was received from PC Price, the senior officers in the investigation decided that in due course, at the appropriate moment, the appellant would be arrested and interviewed. This was supported by the IPCC, though there was a difference of view as to the amount of notice the appellant should be given. A meeting for the purposes of the arrest and interview was planned for 1 March but was postponed to 16 March at the request of the appellant's solicitor.
10. On 2 March a report was received from PC Price. It was critical of the appellant. It identified a number of occasions during the pursuit when, in PC Price's opinion, the police car got too close to the Cavalier, leaving insufficient stopping distance and also placing undue pressure on the driver of the Cavalier (the concern being that this may result in increased speeds and greater risk to the safety of the public). The pursuit also involved the police car committing an offence by crossing solid double white lines while overtaking. Further, it was PC Price's belief that, in adherence to the relevant ACPO guidelines, the pursuit should have been discontinued after about seven minutes because there were no pursuit resolution tactics readily available, the continuance of the pursuit could not be justified in relation to the offences committed or suspected to have been committed, and the pursuit had become too dangerous to continue.
11. On 10 March PC Parker produced the report that had been commissioned from him by the Lincolnshire Police. It was much less critical of the appellant, concluding in relation to him:

"Constable Alford's standard of driving on the whole was of a satisfactory standard and I do not believe he committed any Road Traffic Offences in relation to his manner of driving. Overtakes taken by him were, on the whole, of a good standard and he claimed all exemptions with regard to Road Traffic legislation in line with his training. He did however on two definite occasions get very close to the subject vehicle … and this in an ideal situation should not [have] happened as the subject could have felt pressurised."

12. The Lincolnshire Police sent the Parker report, in undated and unsigned form, by email to DCI Joyce on 10 March and he forwarded it to Inspector Etherington on 11 March. The report was discussed by those two officers and there was some evidence that it was discussed at case meetings, but subject to that it seems to have been put on one side. The judge found that it did not come to the attention of DS Hankins who was in overall charge of the investigation. It was not taken into account in the subsequent decisions to arrest and prosecute the appellant. The reasons for this troubling feature of the case are not fully explored in the judge's judgment. He commented that the police officers appeared to attach more significance than a court would to the fact that the report was undated and unsigned. It appears, however, that the provenance of the report may have been the most important consideration. The report had been commissioned by the Lincolnshire Police, the appellant's own force, rather than by the Cambridgeshire Police, the investigating force. Inspector Etherington described it as "unsolicited", and there is some evidence that, because it came from the appellant's own force, it was not considered to be objective enough. In any event, whatever the reasons why the report played so little part in their thinking, the judge was satisfied that neither Inspector Etherington nor any other officer deliberately withheld it from the arresting officer. It was also Inspector Etherington's evidence that he could only conclude that it was a genuine oversight that the report was not included in the later disclosure to the Crown Prosecution Service.
13. On 16 March the appellant's arrest took place. The arresting officer was Sergeant Johnson. I shall examine later the basis upon which he made the arrest. Following the arrest there were a number of interviews under caution, but on legal advice attributable to dissatisfaction with the extent of disclosure the appellant made no comment in response to questions on the substance of the case. The total period for which he was detained before being granted bail was six and a half hours.
14. On 21 March the case file, completed by Inspector Etherington, was forwarded to the Crown Prosecution Service. It included the Price report but it did not include the Parker report and it made no reference to that report. It included the witness statements and a summary of those statements, but the judge described the summary as "not of the best or fairest", in that it omitted various remarks from the witnesses which were either supportive of the appellant's driving or were in no way critical of it in circumstances where they could have been if there was anything wrong with it.
15. On 16 May a CPS lawyer advised in writing that the claimant should be charged with the offence of causing death by dangerous driving. He said that having considered all the available evidence (i.e. as set out in the case file sent to him) he had decided that there was sufficient evidence to provide a realistic prospect of conviction. He added that he had asked counsel to provide him with advice on evidence.
16. Counsel's advice was received by Cambridgeshire Police on the following day. In that advice counsel considered not only the position of the appellant but also the position of PC McCulley, the passenger in the police car, in respect of whom there were ongoing enquiries. In relation to the appellant, counsel concluded:

"The video tells the story. It is supported by the audio evidence. The decision to continue that pursuit in those conditions was that of the two officers in the police car. PC Alford should be charged with causing death by dangerous driving. Alternatively, with dangerous driving."

Counsel further advised that an expert be instructed to consider the evidence against PC McCulley and any senior officer on the question of corporate responsibility within the police service. He went on to say that if the expert came to the conclusion that PC Alford's driving was not dangerous, then his advice needed to be reconsidered. In addition to his written advice, there was a conference with counsel on 20 June, though the details of that conference were the subject of a claim to privilege.

17. In the light of counsel's advice, the Cambridgeshire Police contacted the Surrey Police for a further expert's report, and PC Campion-Smith was commissioned to prepare such a report. The judge said that he was plainly "the man" in respect of chases. He had been involved in designing the rules and in training many police forces up and down the country.
18. On 24 June the decision was taken, in discussion with the CPS, not to charge the appellant until the picture in respect of PC McCulley was clear, to see whether a joint charge against them would be appropriate. The proposal was made to the appellant's solicitors that bail should be continued until some time in August. The solicitors, however, wrote objecting to this course and asking that when the appellant attended the police station on 27 June either he should be charged or bail should be ended. The response of the police was that the decision to charge the appellant should now be carried out. He was therefore charged on 27 June on attendance at the police station.
19. On 31 August the Cambridgeshire Police received the report of PC Campion-Smith. The judge described it as "a bit of a bombshell" because it advised that there should be no prosecution. It was a lengthy report, but included the following summary:

"… I do not agree with [PC] Price's conclusion, I believe there is no case to answer against the driver or passenger of the police vehicle for causing death by dangerous driving, I consider that the driver of the subject vehicle made his own decisions from the outset of the incident and was not directly influenced by the actions of the police car. He may have continued as a result of the presence of the police vehicle, but I cannot see a case where the manner of driving of the police car was directly responsible for the subject driver's manner of dangerous driving. The police car driver showed a responsible degree of restraint as opposed to the subject who appeared to continue on regardless while the police driver was aware of the other road users and did not cause any other vehicle any safety concerns.

Where [PC] Price refers to stopping distances between the police vehicle and the subject vehicle, and in his view considers this to be dangerous on the part of the police driver, I again beg to differ."

20. On the other hand, the report agreed with the earlier assessments that the pursuit should have been discontinued before the end:

"While at the start they were correct to initiate the incident, as it continued, the risk increased and became unacceptable as the traffic flows changed and the manner of driving by the subject did not change for these conditions, then the pursuit should not have continued any further, particularly without a dynamic risk assessment being concluded."

21. On receipt of the Campion-Smith report the immediate reaction of DS Hankins was that "this will obviously seriously undermine our case", and a rapid decision was taken to discontinue the appellant's prosecution. The appellant was informed of the decision, and the case was formally discontinued on 20 September 2005.

The judgment below

22. The judge commenced his judgment with a detailed analysis of the factual history, which I have summarised above: it included much more extensive quotation from the various reports. The judge then referred to the witness evidence at trial. The appellant gave evidence of his extensive police experience, particularly in advanced driving and tactical pursuit and containment. He then gave an account of the pursuit itself which, as the judge observed, caused one or more police witnesses to say that if they had heard that explanation of his driving before he had been arrested he would not have been arrested; but the appellant had given up that opportunity by deciding, on legal advice, to make no comment in interview. The appellant also gave evidence, supported by a psychiatric report, of the serious adverse effect that the decisions to arrest and charge him, and the associated extensive publicity, had had upon him.
23. The appellant's case in respect of the pursuit was supported by his passenger, PC McCulley, and by the evidence of two lay witnesses who had witnessed parts of the chase and had contacted the police after the incident but from whom no police statements had been taken.
24. Evidence for the Chief Constable included that of DS Hankins and Inspector Etherington and the evidence of a number of officers involved in the arrest, detention and subsequent interviews of the appellant. Of those other officers the most important was Sergeant Johnson, who effected the arrest itself.
25. Having outlined the evidence, the judge identified seven main issues: (1) had the Chief Constable proved that Sergeant Johnson genuinely suspected that the appellant had committed the offence of causing death by dangerous driving? (2) had the Chief Constable proved that Sergeant Johnson had reasonable grounds for his suspicion? (3) had the appellant proved that Sergeant Johnson exercised his discretion to arrest unreasonably? (4) had the Chief Constable proved that the continuing detention of the appellant for six and a half hours was justified? (5) had the appellant proved that the prosecution was brought without reasonable and probable cause? (6) had the appellant proved that the prosecution was malicious, in this case in the sense of being brought with an improper motive? (7) what damage had the appellant proved?
26. The judge answered issues (1) to (5) in the Chief Constable's favour. Although on that basis issue (6) did not strictly arise, the judge considered it and answered it in the appellant's favour. He also indicated what award he would have made under issue (7) if the answers to the previous issues had led to the claim succeeding.
27. I shall consider the judge's reasoning as necessary in the context of the issues that arise on the appeal.

(1) Lawfulness of the arrest: were there reasonable grounds for suspicion?

28. The claim of false imprisonment related to the period of detention following the appellant's arrest. The defence to that claim was that the arrest was lawful. The lawfulness of an arrest depends on the answers to three questions, conveniently set out in the judgment of Sir Anthony Clarke MR in Commissioner of Police of the Metropolis v Raissi [2008] EWCA Civ 1237, para 4, quoting from earlier authority:

"(1) Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.

(2) Assuming the officer had the necessary suspicion, was there reasonable cause for suspicion? This is a purely objective requirement to be determined by the judge if necessary on the facts found by a jury.

(3) If the answer to the two previous questions is in the affirmative, then the officer has a discretion which entitles him to make an arrest and in relation to that discretion has [to be] exercised in accordance with the principles laid down by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223."

29. The judge found in this case that the arresting officer, Sergeant Johnson, (1) had the necessary suspicion, (2) had reasonable grounds for his suspicion, and (3) did not exercise his discretion unreasonably. There is no challenge to the findings on (1) and (3). The challenge relates to the finding of reasonable grounds for suspicion.
30. That issue, however, has more than one facet to it. The complication arises out of the fact that the Parker report was not brought to the attention of Sergeant Johnson but was and is relied on by the appellant as having undermined any grounds for suspicion. An important part of the appellant's case before the judge concerned the consequences, for the lawfulness of the arrest, of the Parker report being withheld. The judge held that this would not be relevant to the lawfulness of the arrest. He also considered that the report did not exonerate the appellant and that its effect had been overstated by the appellant's counsel. The judge accepted Inspector Etherington's evidence that reading the report did not alter that officer's suspicion, which he had already formed, that the appellant had committed the offence. As already mentioned, the judge also found no evidence that Inspector Etherington or any other officer had deliberately withheld the report. He concluded that "[i]n those circumstances, I come to the conclusion that the defendant has easily satisfied [me] that Sergeant Johnson had reasonable grounds for suspicion".
31. One of the issues raised in argument before us was the correct approach of an appellate court towards a finding of a first instance judge as to the existence of reasonable grounds. It is settled that the question whether the established facts disclose reasonable grounds for an arrest or a prosecution is a question of law to be decided by the judge, rather than a question of fact for the jury (if there is one): Lister v Perryman (1870) LR 4 HL 521, Dallison v Caffery [1965] 1 QB 348, 371G-372. On that basis Mr Cragg submits that an appellate court is required to make its own independent evaluation of the facts and to decide for itself on the existence of reasonable grounds. He cites Clayton and Tomlinson, Civil Actions against the Police, 3^rd ed., where the authors state at para 3-128 that "the judge's decision on reasonableness is fully open to review on appeal"; and at para 3-151 that whilst the Court of Appeal is reluctant to reject a judge's primary findings of fact, it will form "an independent assessment" of the proper inferences to be drawn from the primary facts. The authority cited for the latter proposition is Benmax v Austin Motor Co. [1955] AC 370.
32. In relation to issues of fact, a more up-to-date statement of the correct approach of an appellate court is to be found in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] 1 WLR 1325, at para 46, where the House of Lords approved a passage in the judgment of Clarke LJ (as he then was) in Assicurazioni Generali SpA v Arab Insurance Group (BSC) [2003] 1 WLR 577. In that passage Clarke LJ stated that in appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge (which will depend upon the extent to which, as trial judge, he had an advantage over the appellate court), but that some conclusions of fact involve an assessment of a number of different factors which have to be weighed against each other, which is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ: such cases may be closely analogous to the exercise of a discretion, and appellate courts should approach them in a similar way.
33. A decision on the existence of reasonable grounds for arrest or prosecution will also involve an evaluation of the facts and, in many cases, a weighing of different factors, but because the question is treated as one of law rather than of fact it seems to me that the situation is materially different from that which Clarke LJ had in mind when drawing an analogy with the exercise of a discretion. In my view the question is one on which an appellate court has to reach a conclusion of its own, rather than limiting itself to deciding, for example, whether the trial judge's conclusion was plainly wrong. If, however, the trial judge has approached the task correctly, it will generally be appropriate to place weight on his assessment, given his proximity to the evidence and his better overall "feel" for the case; and I would expect an appellate court to be slow in practice to interfere with the trial judge's conclusion.
34. With that introduction, I turn to consider the judge's conclusion that there existed reasonable grounds for suspicion in this case. I think it important to separate out the various strands more clearly than appears in the judge's reasoning. It is appropriate to consider first the position of Sergeant Johnson, as the arresting officer. The power of arrest is vested in an individual constable (see s.24 of the Police and Criminal Evidence Act 1984) and what matters is whether the conditions for a lawful arrest were satisfied in relation to that constable. Sergeant Johnson was found to have had a genuine suspicion that the appellant had committed the offence of causing death by dangerous driving. Whether he had reasonable grounds for his suspicion must be determined as an objective question on the basis of the matters known to him at the time. At this stage of the analysis, therefore, the Parker report is an irrelevance, since it was not provided to Sergeant Johnson and he did not know about it. It is also important to have in mind, as observed in Commissioner of Police of the Metropolis v Raissi (above) at para 20, that the threshold for the existence of reasonable grounds for suspicion is low.
35. The judge referred to the undisputed evidence that Sergeant Johnson was a pursuit trained advanced driver who had watched the video, had driven the route and had read the Price report. On behalf of the appellant, Mr Cragg draws attention to other relevant matters, including the fact that the appellant was a grade 1 advanced driver and knew the roads very well, that none of the witness statements taken from drivers along the route said anything critical about the appellant's driving, and that the police car was a substantial distance behind when the Cavalier crashed. There is no reason to believe that any of those matters was unknown to Sergeant Johnson. Mr Cragg submits that the conclusion properly to be drawn from the matters known to Sergeant Johnson, taken as a whole, is that his suspicion lacked reasonable grounds. In support of that submission he emphasises the various elements of the offence of causing death by dangerous driving contrary to s.1 of the Road Traffic Act 1988: the driving must not only cause the death but must also be dangerous, which by s.2A requires that (a) the way the person drives falls far below what would be expected of a competent and careful driver, and (b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.
36. I am unable to accept that submission. In my judgment the matters known to Sergeant Johnson did provide reasonable grounds for his suspicion that the appellant had committed the offence. He was able to, and did, form his own assessment of the quality of the appellant's driving from his study of the video and the route. He had sufficient expert knowledge for that purpose. I have watched the video myself and, without the requisite expertise, would not be able to draw conclusions of my own from it, but it contains nothing obviously inconsistent on the face of it with the assessment made by Sergeant Johnson. Moreover the Price report provided expert support for Sergeant Johnson's assessment. Bearing in mind the relatively low threshold for the existence of reasonable grounds, there can in my view be no doubt that reasonable grounds existed here for the suspicion upon which the appellant's arrest was based. I therefore agree with the judge's conclusion on this issue.
37. I turn to consider the implications of the failure of senior officers, in particular Inspector Etherington, to provide the Parker report to Sergeant Johnson. Mr Cragg does not seek to go behind the judge's finding that the failure was not deliberate, but submits that the failure nonetheless rendered the arrest and resulting detention unlawful. The submission is founded on a passage in the judgment of Sedley LJ in Clarke v Chief Constable of North Wales Police (5 April 2000, unreported). One of the issues in Clarke's case was whether an arresting officer was entitled to make an arrest based on a briefing from other officers, without knowing anything about the offence beyond what he learned from the briefing. In giving an affirmative answer, Sedley LJ, with whom the other members of the court agreed on that issue, said this (at para 23):

"Although the power of arrest without warrant depends on the existence in the mind of the arresting officer of reasonable suspicion of the material elements of an arrestable offence, there is no requirement of law that the constable must have first-hand knowledge of these. So long as they come from a source which it is reasonable for her to rely on, they can properly form the basis of a reasonable suspicion in the constable's own mind: see O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286. Policing would otherwise be a practical impossibility. Contrary to [counsel's] submission, I do not accept that the arresting constable must affirmatively satisfy herself that the information conveyed by other officers comes from reliable sources. Of course if the briefing makes it apparent that the sources are unreliable or non-existent, the arresting constable's suspicion will not be reasonable in the absence of other good grounds for it. And if the briefing officer has told the arresting officer that there is reliable information when there is not, the Chief Constable may become vicariously liable for a wrongful arrest – but on behalf of the briefing officer, not of the arresting officer. These, it seems to me, are the protections the law affords against arrest on unjustified suspicion. They do not extend, and do not need to extend, to requiring each constable involved in an arrest and search operation to make an independent evaluation of the grounds for suspicion. Nothing in O'Hara suggests otherwise" (emphasis added).

Mr Cragg relies on the emphasised words as supporting the submission that Inspector Etherington's failure to provide the Parker report to Sergeant Johnson, in circumstances where on his case the report undermined the existence of reasonable grounds for suspicion, rendered Inspector Etherington liable (and the Chief Constable vicariously liable) for a wrongful arrest even though Sergeant Johnson was not so liable.

38. The judge rejected that submission, saying that Sedley LJ's words must mean that if in the circumstances there is a tort committed by officers withholding material, such as misfeasance in public office, then the chief constable would be liable for that. I agree with the judge. The lawfulness of an arrest depends, as I have said, on whether the arresting officer has a genuine suspicion and there are reasonable grounds for that suspicion. If, as was the premise of Sedley LJ's observation, the arresting officer has such a suspicion and the briefing provides reasonable grounds for the suspicion, the arrest will be lawful. In those circumstances the omission of relevant material from the briefing cannot possibly render the briefing officer liable for wrongful arrest, since there is no wrongful arrest for which he can be liable, whether as sole or joint tortfeasor. On the other hand, the deliberate withholding of relevant material, leading to an arrest that would not otherwise have taken place, might render the briefing officer liable for misfeasance in public office. It is, however, unnecessary to consider the matter any further, since misfeasance was not pleaded and the judge's finding that the withholding of the Parker report was not deliberate would be fatal to any such claim. Nor is it necessary to consider whether the careless withholding of such material could ever render the briefing officer liable in negligence, which was neither pleaded nor argued, no doubt because of the well established limitations on actions in negligence against the police in respect of the investigation of crime (see, for example, Hill v Chief Constable of West Yorkshire [1989] AC 53).
39. I therefore take the view that knowledge of the Parker report by Inspector Etherington, as the briefing officer, is incapable in law of affecting the lawfulness of the arrest effected by Sergeant Johnson. Even if I were wrong on that, then for reasons that will be apparent from my consideration of the issue of malicious prosecution, I am satisfied on the facts that the Parker report did not undermine the existence of reasonable grounds for suspicion that the appellant was guilty of the offence.

(2) Was there reasonable and probable cause for the prosecution?

40. As to the question whether there was reasonable and probable cause for the prosecution, in Herniman v Smith [1938] AC 305, 316, the House of Lords approved the following statement of principle:

"I should define reasonable and probable cause 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."

41. The judge cited that passage and it is accepted that he directed himself correctly in law. The appellant's challenge is to the conclusion the judge reached in the application of the legal test to the facts. The challenge is based entirely upon the effect of the Parker report.
42. It is not in dispute that the decision to charge the appellant was taken by the police, on the advice of the Crown Prosecution Service, rather than being the direct responsibility of the latter. The decision was in fact taken by DS Hankins and the charge was laid by a Sergeant Stonebridge. Neither of those officers had seen the Parker report, though DCI Joyce and Inspector Etherington had of course done so and it had apparently been discussed at case meetings. Mr Cragg submits that DCI Joyce and Inspector Etherington, even if not directly involved in the charging, should be treated as responsible for the prosecution, on the principles in Martin v Watson [1996] 1 AC 74, so that their knowledge of the report should be taken into account in determining whether there was reasonable and probable cause for the prosecution. For the reasons given below, I think it unnecessary to reach any concluded view on that point. The issue can be considered on the assumption that all those responsible in law for the prosecution had knowledge of the Parker report.
43. The judge dealt with the matter in this way (at paras 129-130):

"My conclusions on the evidence … are that Mr Hankins and [Sergeant] Stonebridge did, indeed, have reasonable and probable cause to charge based on the evidence, without the Parker report. I conclude that other members of the team, Inspector Etherington and, apparently, Joyce, had reasonable and probable cause to charge, even having read the Parker report.

On balance, I am satisfied that had Mr Hankins or Sergeant Stonebridge read the Parker report, each of them would still have had reasonable and probable cause to charge the claimant as charged …."

The judge had previously said that it was his judgment, on the balance of probability, that if counsel or the Crown Prosecution Service had seen the Parker report as well as the Price report, the decision they took would also have been the same.

44. Mr Cragg submits that the judge was wrong and that the correct conclusion, taking the Parker report into account, is that there were no reasonable grounds for the prosecution. The essence of the submission is that the Parker report was as favourable to the appellant as was the Campion-Smith report; and, just as it was acknowledged on receipt of the Campion-Smith report that the prosecution needed to be discontinued, so the Parker report should lead to the conclusion that there was no reasonable basis for the prosecution in the first place. As to the similarity between the Parker report and the Campion-Smith, Mr Cragg points out that both reports had some points of criticism of the appellant's driving and both took the view that the pursuit ought to have been discontinued, but both concluded that the appellant's driving was of a satisfactory standard overall and that he had not committed any road traffic offence.
45. For my part, I do not consider that the two reports can be equated in the way that Mr Cragg seeks to equate them. First, there are differences between them in the detailed analysis of the pursuit, and the Parker report does not provide the same focused and emphatic conclusion that there was no case for the appellant to answer in respect of causing death by dangerous driving. Secondly, PC Campion-Smith was from an independent force and was "the man" in the field, so that his report properly carries greater weight than a report prepared by an officer in the appellant's own force. It was also commissioned on the advice of counsel and in circumstances where counsel had said that his advice to prosecute needed to be reconsidered if the report concluded that the appellant's driving was not dangerous. Thus the impact that the Campion-Smith report had in practice does not serve to demonstrate what would or should have happened if the Parker report had been taken into account at the time when the decision to prosecute was taken.
46. If those concerned in the advice to prosecute and in the decision to prosecute had had full cognisance of the Parker report as well as of the Price report and other evidence, the balance of factors in favour of prosecution would certainly have been weaker, but I share the judge's view that the advice and decision would probably have been the same. More importantly, I take the view that on the evidence as a whole, including the Parker report, there were reasonable grounds for bringing the prosecution. By contrast, when the Campion-Smith report was received, it altered the balance very significantly, not just because of the weight to be given to the report itself but also because there were now, in broad terms, two reports in the appellant's favour and only one against. Although it was plainly right at that stage to discontinue the prosecution, there were, in my judgment, reasonable grounds for bringing the prosecution in the first place.
47. Accordingly, I would uphold the judge's finding that there was reasonable and probable cause for the prosecution.

(3) The issue of improper motive

48. On the basis of the conclusions I have reached in relation to the appeal it is unnecessary to deal with the issue raised by the respondent's notice concerning the judge's finding in respect of malice. For the avoidance of any misunderstanding, however, I should explain briefly the nature of that finding. The judge held that "[h]ad the claimant proved a lack of reasonable and probable cause for prosecuting, he would have succeeded in establishing malice in the sense of improper motive" (para 153). This is not, as I read the judgment and as counsel for the Chief Constable agreed, a finding of malice, but an observation that there would have been an improper motive if the appellant had proved a lack of reasonable and probable cause for prosecuting, which he did not. That was because the evidence showed that part of the thinking of those responsible for the prosecution was to make an example of the appellant, as a police officer, and to show the public that the police were treating seriously innocent deaths caused in police road pursuits – a point that can be linked to the disquieting degree of publicity given to the arrest and charging of the appellant. However, that was as far as the point went; and the finding that there was reasonable and proper cause for the prosecution meant that the question of malice or improper cause became irrelevant to liability. It would be wrong in the circumstances to go any further into the issue.

Conclusion

49. For the reasons given I would dismiss the appeal.

Lord Justice Rimer :

50. I agree.

The President of the Queen's Bench Division :

51. I also agree that this appeal should be dismissed for the reasons given by Richards LJ.