Glinski v McIver: HL 1962

The court considered the tort of malicious prosecution when committed by a police officer, saying ‘But these cases must be carefully watched so as to see that there really is some evidence from his conduct that he knew it was a groundless charge.’
A charging officer is simply required to make an assessment of whether there is sufficient evidence to withstand examination in the course of ‘a fair and impartial trial’.
The idea of malice covered ‘any motive other than a desire to bring a criminal to justice’. ‘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.’
The House discussed the interaction between malice and want of honest belief: ‘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.’
Lord Devlin observed: ‘At first sight it is undoubtedly an attractive proposition that a police officer should not be expected to hold an opinion about the guilt and innocence of those he prosecutes; a prosecuting counsel is not expected to hold such an opinion any more than the magistrate who commits for trial . . It derives, I think, a lot of its attraction from the ambiguous use of the word ‘guilt’. If the word is used without qualification, I entirely agree, for the reasons I have given, that a police officer should not be expected to hold an opinion. But when the question to which his mind ought to be directed is no more than the strength of his case, I think it would be unsatisfactory and impracticable to attempt to distinguish between facts proved directly and facts inferred, or (for inference depends on opinion), between fact and opinion generally. Opinion enters into everything from the beginning. The value of a statement taken from a witness depends, until it is tested in court, on the officer’s opinion of the witness’s honesty, accuracy and power of observation.’
Viscount Simonds discussed the extent to which an officer should investigate a possible defence: ‘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.’


Lord Denning, Lord Devlin, Viscount Simonds


[1962] AC 726, [1962] 1 All ER 696


England and Wales


CitedDawson v Vasandau 1863
It is not necessary for a charging officer to believe that the prosecution will result in a conviction before charging a prisoner. . .
CitedTempest v Snowden 1952
Decision too charge – whether was warranted
A custody officer is not required to be sure that the accused person is guilty before charging him, but rather he should believe that a charge is warranted . .
CitedHicks v Faulkner 1878
Before charging a prisoner, a police officer must have ‘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 . .
CitedHerniman v Smith HL 1938
The court considered the tort of malicious prosecution.
Held: 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. The House approved the . .

Cited by:

CitedPalomares v Chief Constable of Thames Valley Police CA 11-Oct-1996
The Chief Constable appealed a finding of false imprisonment. The claimant had been arrested, but later the charges were dismissed. The jury found on the trial for malicious prosecution that the officers had not believed the truth of the allegations . .
CitedOsman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
CitedGibbs and others v Rea PC 29-Jan-1998
(Cayman Islands) The respondent worked for a bank. He disclosed a business interest, but that interest grew in importance to the point where he resigned in circumstances amounting to constructive dismissal. His home and business officers were raided . .
CitedKeegan and Others v Chief Constable of Merseyside CA 3-Jul-2003
The police had information suggesting (wrongly) that a fugitive resided at an address. An armed raid followed, and the claimant occupant sought damages.
Held: The tort of malicious procurement of a search warrant required it to be established . .
CitedMcHarg v Chief Constable of Thames Valley Police ChD 9-Jan-2004
The claimant police officer sought damages for malicious prosecution. The defendant applied for the claim to be struck out.
Held: There was insufficient evidence to establish malice. The claim was struck out. . .
CitedMatin v Commissioner of Police of the Metropolis CA 20-Jun-2002
The claimant sought to have restored his claim for malicious prosecution.
Held: ‘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 . .
CitedSinclair v Chief Constable of West Yorkshire and British Telecommunications Plc CA 12-Dec-2000
The claimant had been prosecuted, but the charge was dismissed as an abuse of process. He now appealed a strike out of his civil claim for damages for malicious prosecution.
Held: The appeal failed. The decision to dismiss the criminal charge . .
CitedCoudrat v Revenue and Customs CA 26-May-2005
The claimant appealed against dismissal of his claim for false imprisonment and malicious prosecution against the Customs and Excise. He was arrested and held accused of VAT fraud. Proceedings were discontinued. He had signed an application for . .
CitedClifford v The Chief Constable of The Hertfordshire Constabulary QBD 1-Apr-2011
The claimant alleged malicious prosecution and misfeasance in public office bought by the claimant who was charged with child pornography offences in July 2004. The prosecution had eventually offered no evidence. He said that it should have been . .
CitedBT v Crown Prosecution Service CA 16-Dec-1997
The plaintiff appealed against dismissal of his claim for malicious prosecution brought against the Service.
Held: Actions for malicious prosecution, against the Crown Prosecution Service are to be examined closely to ensure that they are not . .
CitedWilliamson v The Attorney General of Trinidad and Tobago PC 3-Sep-2014
(Trinidad and Tobago) The claimant had been held after arrest on suspicion of theft. He was held for several months before the case was dismissed, the posecution having made no apparent attempt to further the prosecution. He appealed against refusal . .
CitedMotasim v Crown Prosecution Service and Others QBD 15-Aug-2017
The claimant had been arrested on suspicion of terrorism, from his innocent association with people later convicted of terrorism. The defendant discovered evidence which would undermine the case against him, but refuse to disclose it. Eventually, . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Police

Updated: 16 May 2022; Ref: scu.182185