Law Report: Prosecution for indecent exposure was not malicious: Martin v Watson. Court of Appeal (Lord Justice Ralph Gibson, Lord Justice McCowan and Lord Justice Hobhouse), 21 January 1994

A person who made a complaint to the police, knowing that it was untrue, but who left it to the police to decide whether to proceed, was not a 'prosecutor' for the tort of malicious prosecution.

The Court of Appeal by a majority allowed an appeal by the defendant, Mrs Ulka Watson, against the decision of Judge Goodman on 13 July 1992, awarding the plaintiff, John Martin, pounds 3,500 damages for his malicious prosecution by the defendant for indecent exposure.

Richard Christie (C R Burton, Penge) for the defendant; Jonathan Rose (Welles, Bromley) for the plaintiff.

LORD JUSTICE RALPH GIBSON said that the parties were neighbours living in Orpington. For 13 years, each had accused the other of unneighbourly conduct. Their behaviour, in what the judge described as an 'appalling history', had been disgraceful for both of them.

The act of indecent exposure for which the plaintiff was prosecuted was said by the defendant to have occurred on 19 or 20 July 1989. She called the police and made a statement.

On 21 July, DC Haynes took a further statement, in consequence of which he obtained a warrant for the plaintiff's arrest, on a charge that he had 'exposed his person with intent to insult the defendant', contrary to section 4 of the Vagrancy Act 1824. The plaintiff was arrested and interviewed but no evidence was offered and the case was dismissed.

He alleged that the defendant had repeatedly made similar false allegations and that the police who arrested and interrogated him were acting as the defendant's agents.

The essential elements of the tort of malicious prosecution were stated in Clerk and Lindsell on Torts, 16th edition, para 1905: 'The plaintiff must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious.'

The judge concluded that the defendant was responsible for calling the police in to deal with her complaint, and was actively instrumental in setting the law in motion against the plaintiff, and that she was therefore to be regarded as a prosecutor.

There had been no clear statement or binding decision by an English court as to what conduct would suffice for the purpose of showing that the law had been 'set in motion' by the defendant. The question was to be answered by finding that answer which best served the demands of two conflicting principles of policy: (i) safeguarding the individual from harassment by unjustifiable litigation, and (ii) encouraging citizens to aid in law enforcement.

If the defendant, with the intention of causing a police officer to initiate a prosecution against the plaintiff, made an allegation which (1) if believed was likely to cause the police officer to initiate the prosecution; (2) was to her knowledge false, and (3) the police officer was thereby caused to initiate the prosecution, then there was nothing to prevent a finding that such a defendant had been 'actively instrumental in the making of the charge': see Danby v Beardsley (1880) 43 LT 603.

There was much to be said for a rule which confined a cause of action for malicious prosecution to claims against a defendant who had done by himself, or by his agent, some formal act by which he assumed responsibility for the prosecution, such as by laying an information. But in his Lordship's judgment it would not be right so to limit and define the concept of 'setting the law in motion'.

On the other hand, it would be wrong to accept that it could be satisfied by proof that a defendant had done no more than to make an allegation to a police officer, with the intention that the police officer should act upon it against the party accused, and with knowledge that the allegation was untrue.

A person who went to the police to complain but who left it to the police to decide what to do was not a prosecutor for the tort of malicious prosecution.

The importance of the policy of the law, in protecting those who complained or gave information to the police, justified the rule, notwithstanding its apparent unfairness to this plaintiff.

Nor did the additional acts of the defendant, in the number, nature and manner of her complaints to the police, justify taking the case outside the ordinary rule and treating her as a prosecutor.

LORD JUSTICE HOBHOUSE concurred. LORD JUSTICE McCOWAN dissented.