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Rudall v The Crown Prosecution Service & Anor
Factual and Procedural Background
This action concerns claims for damages brought by Plaintiff, a solicitor, against the Crown Prosecution Service ("CPS") and South Wales Police ("SWP") arising from two failed prosecutions related to alleged involvement in fraudulent schemes and money laundering. The Plaintiff was investigated by SWP Fraud Squad between 2002 and 2013 and prosecuted twice by the CPS: first in 2004 for conspiracy to defraud and perverting the course of justice, resulting in acquittal; and second in 2010 for laundering proceeds of a Ponzi scheme known as Lifeclub, with charges dismissed in 2013 due to inadmissibility of key evidence (exhibit TE/91).
Following the dismissal of the second prosecution, the Plaintiff commenced proceedings in 2014 against both SWP and CPS. The claims related to the first prosecution were struck out on limitation grounds, and the claims for misfeasance and breach of the Human Rights Act were limited to conduct within six years prior to the claim. The claim against CPS relating to the second prosecution proceeded to trial, with the Plaintiff discontinuing claims against SWP. The principal claim at trial was malicious prosecution against the CPS prosecutor, Defendant, who made the charging decision in 2010.
The trial was limited to liability issues and heard solely by the presiding Judge. The Plaintiff alleged that the Defendant and the prosecution team acted maliciously and without reasonable and probable cause, primarily focusing on the admissibility and reliability of exhibit TE/91, a CD Rom containing banking data central to the prosecution.
Legal Issues Presented
- Whether the Defendant had reasonable and probable cause to bring the charges against the Plaintiff in the 2010 prosecution.
- Whether the Defendant was motivated by malice in instituting the prosecution.
Arguments of the Parties
Plaintiff's Arguments
- The key evidence (exhibit TE/91) was inadmissible due to lack of provenance, absence of proper chain of custody, absence of consent from Latvian authorities, and its incomplete nature ("Viborka for Prok" indicating an excerpt).
- The Defendant knowingly relied on inadmissible evidence and concealed critical defects, including the existence of an undisclosed second International Letter of Request ("ILOR") related to the production of TE/91.
- The prosecution was motivated by malice, including a desire to stop the Plaintiff from practicing as a solicitor and general ill-will, supported by statements from members of the prosecution team and alleged procedural improprieties such as misleading information in search warrant applications and delays in charging.
- Malice should be inferred from the conduct and statements of the prosecution team, including Counsel and police officers, who allegedly acted in concert with the Defendant.
Defendant's Arguments
- The Defendant is an honest and experienced prosecutor who had an honest belief in the case and reasonable and probable cause to prosecute.
- Exhibit TE/91 was not plainly inadmissible; it was business records admissible under section 117 of the Criminal Justice Act 2003, supported by surrounding material and consistent with established case law (R v Foxley).
- Concerns about the chain of custody and provenance were not known to the Defendant at the time of charging and were attributable to police failings outside the Defendant's control.
- There was ample circumstantial evidence of the Plaintiff’s involvement in criminality beyond TE/91, including email communications and witness statements.
- Successor Counsel's opinion that the evidence met the higher evidential test under the Prosecutor's Code supports the reasonableness of the Defendant's belief.
- No direct evidence supports the claim that the Defendant was motivated by malice, and malice cannot be inferred merely from association with other members of the prosecution team.
- Procedural choices, including the route for the search warrant application, were made based on legal advice and not for improper purposes.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Martin v Watson [1996] 1 AC 74 | Elements of malicious prosecution: prosecution by defendant, determination in plaintiff’s favor, absence of reasonable and probable cause, and malice. | Used to establish the legal framework for malicious prosecution claims. |
| Haddrick v Heslop [1848] 12 QB 268 | Honest belief by prosecutor is conclusive of reasonable and probable cause. | Confirmed that absence of honest belief negates reasonable and probable cause. |
| Thacker v Crown Prosecution Service [1997] EWCA Civ 3000 | Prosecutor need not believe in guilt, only that there is a proper case to try; malice can be inferred from absence of reasonable and probable cause but not from honest but unreasonable belief. | Clarified the subjective and objective elements of reasonable and probable cause. |
| Coudrat v Commissioners of HMRC [2005] EWCA Civ 616 | Prima facie admissible evidence of each element of offence required at charging stage; no need to consider trial exclusions or full defence strength. | Guided the court’s assessment of sufficiency of evidence at charging stage. |
| Herniman v Smith [1938] AC 505 | Facts known to prosecutor at time of charge determine reasonable and probable cause. | Supported approach to assessing evidence from prosecutor's perspective. |
| Besnik Qema v News Group Newspapers Limited [2012] EWHC 1146 | Focus on sufficiency of evidence and honest belief for reasonable and probable cause. | Reinforced the evidential sufficiency standard. |
| Johnstone v Sutton (1786) 1 Term Reports 510 | Malice cannot be inferred from malice alone; absence of reasonable and probable cause must be proven separately. | Emphasized separation of malice and absence of reasonable and probable cause. |
| Glinski v McIver [1962] AC 726 | Definition of malice as any motive other than bringing a criminal to justice. | Clarified the meaning and inference of malice in malicious prosecution. |
| Abbott v Refuge Assurance Co [1962] 1 QB 432 | Value of advice from counsel depends on experience and completeness of facts presented. | Considered in evaluating the role of counsel’s advice in establishing reasonable and probable cause. |
| R v Foxley [1995] 2 Cr. App. R 523 | Admissibility of hearsay business documents obtained abroad without witness testimony. | Key authority supporting admissibility of exhibit TE/91. |
Court's Reasoning and Analysis
The Court undertook a detailed examination of the Defendant's honesty and integrity, focusing on whether he genuinely believed that exhibit TE/91 was prima facie admissible evidence and whether that belief was reasonable. The Court found the Defendant to be a conscientious and honest prosecutor with a methodical approach to his work, rejecting the Plaintiff's assertion that the Defendant fabricated or concealed documents or deliberately misled the Director's Case Management Panel ("DCMP").
Regarding the provenance and continuity of exhibit TE/91, the Court accepted that while police handling was poor and the chain of custody was inadequately maintained, the Defendant was unaware of these deficiencies and reasonably relied on the police to maintain proper procedures. The Court found that the Defendant had clearly disclosed the limitations of the evidence to the DCMP and had taken appropriate legal advice, including applying the principles from R v Foxley to conclude the exhibit was admissible business evidence.
The Court rejected the Plaintiff's contention that the Defendant knew of and concealed a second ILOR or that the Defendant lacked consent from Latvian authorities to use the evidence, finding no credible evidence to support these claims.
On the objective sufficiency of the evidence, the Court distinguished the test for reasonable and probable cause from the higher evidential standard required at trial, finding that the Defendant’s honest belief was reasonable given the evidence available at the time. The opinion of successor Counsel, who advised that the evidence met the higher Prosecutor's Code test, was given significant weight.
On malice, the Court held that no direct evidence existed to show the Defendant was motivated by ill-will or improper motives. The Court rejected the Plaintiff's attempt to infer malice from the conduct or statements of other members of the prosecution team ("malice by osmosis"), emphasizing that malice must be proven against the Defendant personally.
The Court found no basis to conclude that procedural choices, such as the route for the search warrant application or the decision to prosecute the first case (Wolfram II), were motivated by malice. The Defendant’s decisions were found to be consistent with his duty to the public interest and legal advice received.
The Court also rejected the Plaintiff's argument that the delay in charging was indicative of malice or an improper determination to prosecute at all costs, viewing the delay as attributable to investigatory complexities and resource issues.
Holding and Implications
The Court's final decision is to DISMISS the Plaintiff’s claims for malicious prosecution, misfeasance in public office, and breach of section 6 of the Human Rights Act 1998.
The dismissal of the malicious prosecution claim, based on findings that the Defendant acted honestly, reasonably, and without malice, precludes the related claims for misfeasance and Human Rights breaches, which were parasitical on the success of the malicious prosecution claim.
The direct effect of this decision is that the Plaintiff’s claims fail in their entirety. The Court’s reasoning clarifies the application of legal principles concerning reasonable and probable cause and malice in malicious prosecution claims, particularly in complex fraud investigations involving foreign evidence and procedural intricacies. However, the judgment does not establish new precedent beyond the application of established principles to the facts.
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