Court of Appeal

Published October 28, 2009

Hunt v AB

Before Lord Justice Sedley, Lord Justice Wall and Lord Justice Moore-Bick

Judgment October 22, 2009

A person acquitted of rape did not have a cause of action in tort for malicious prosecution against the complainant, unless it could be shown that the complainant had deliberately manipulated the police and the Crown Prosecution Service into taking a course which they would not otherwise have taken.

The Court of Appeal so held in a reserved judgment when dismissing an appeal brought by the claimant, Anthony Hunt, against the decision of Mr Justice Blake ([2008] EWHC 2756 (QB)) that the complainant, AB, was not the prosecutor and so was not liable to an action for malicious prosecution.

Mr Mark Warby, QC and Mr Stephen Ferguson for the claimant; Mr Roger ter Haar, QC, Mr Anthony Metzer and Ms Sarah Harris for AB.

LORD JUSTICE SEDLEY said that AB was a married woman who allowed or invited the claimant, a work colleague, into her home for a cup of tea. An act of sexual intercourse took place which he always asserted was consensual and she always asserted was not.

She did not go to the police but some years later a colleague in whom she had confided did so. The police approached the complainant and persuaded her to give evidence.

The claimant was convicted of rape, but after he had served some two years in prison the conviction was overturned. He then issued the present proceedings against AB for malicious prosecution, which were dismissed by the judge on a preliminary issue.

The decision of Mr Justice Blake was correct. The prosecution was in every material sense the responsibility of the police and the Crown Prosecution Service. AB, far from instigating it, did nothing to promote a charge until the police, alerted by a friend in whom she had confided, approached her and persuaded her to give evidence.

If she were to be regarded as a prosecutor, so was every key witness whom an acquitted defendant considered to have lied, with incalculable consequences for both the civil and criminal justice systems.

The fact that AB did nothing designed to promote the prosecution of the claimant was a sufficient ground for the judge’s decision that she was not the prosecutor; it was not a necessary one.

Even if she had gone directly to the authorities, the professional responsibility for the case assumed first by the police and then by the Crown Prosecution Service would, prima facie, have made the latter for all legal purposes the prosecutor.

It would be necessary to establish that she had deliberately manipulated them into taking a course which they would not otherwise have taken if, pursuant to Martin v Watson (The Times July 14, 1995; [1996] AC 74), she was to be regarded in law as the prosecutor.

The assertion that the claimant was telling the truth and the defendant was not, even if a jury were satisfied of it, would not establish that.

Lord Justice Wall and Lord Justice Moore-Bick delivered concurring judgments.

Solicitors: Coyle White Devine; Lovells.

Times Recommends

• BGC 'set aside £40m to lure Tullett brokers'
• Legal aid review to ensure value
• Fears as 21 magistrates' courts face closure