° a CA Davidson v Chief Constable of North Wales 597 Davidson v Chief Constable of North Wales and another COURT OF APPEAL, CIVIL DIVISION ‘SIR THOMAS BINGHAM MR, STAUGHTON AND WAITE LI} 20 APRIL 1993 False imprisonment — Elements of tort — Cause of false imprisonment — Information leading to wrongful arrest — Police officers lawfully arresting plaintiff on wrong information provided by informant — Whether informant merely giving information to properly constituted authority to act on — Whether informant instigator, promoter and active inciter of arrest - Whether informant liable for false imprisonment. H, a friend of the plaintiff, purchased a cassette at a store and, having made the purchase, returned to the cassette counter where the plaintiff was waiting. They stood there talking before leaving the store. A store detective who had observed them standing at the cassette counter gained the impression that they had left without paying for the cassette and telephoned the police. When two police officers arrived the store detective told them that the plaintiff had taken the cassette without paying and pointed them out. The officers arrested the plaintiff and H on suspicion of shoplifting. H denied that he had taken anything dishonestly and produced the cassette but was unable to produce the receipt as he had thrown it away. The plaintiff remained silent. The plaintiff and H were taken to the police station but were released after two hours when the police received a message from the shop assistant who had served H confirming that he had paid for the cassette. The plaintiff brought an action against, inter alia, the store detective’s employers for false imprisonment. At the trial of the action the police officers gave evidence that they had exercised their own judgment in arresting the plaintiff and H acting on the information received from the store detective. The judge withdrew the case from the jury on the grounds that the police officers were protected by s 24(6) of the Police and Criminal Evidence Act 1984 because they had had reasonable grounds to make the arrest and since they had acted independently of the store detective there was no case to answer. The plaintiff appealed. Held — Since the police officers had been justified in arresting the plaintiff and H because they had had a reasonable suspicion, derived from the information supplied by the store detective, that the plaintiff and H had been shoplifting, the issue in relation to the liability of the store detective’s employers for her actions depended on whether the store detective had merely given information to a properly constituted authority on which that authority could act or not as it saw fit or whether she herself was the instigator, promoter and active inciter of the arrest and imprisonment. On the facts, there was no evidence that the store detective’s actions went beyond the giving of information to the police officers for them to take such action as they thought fit and that it amounted to some direction, or procuring, or direct request, or direct encouragement that they should act by arresting the plaintiff and H. In those circumstances the judge had been right to withdraw the case from the jury. The appeal would therefore be dismissed (see p 602 d e, p 603 j, p 604 h to p 605 cf to j to p 6064, post).598 All England Law Reports [1994] 2 AIER Aitken v Bedwell (1827) M & M 68, Grinham v Willey (1858) 4H & N 496 and Meering v Grahame-White Aviation Co Ltd (1920) 122 LT 44 applied. Notes For false imprisonment, see 45 Halsbury’s Laws (4th edn) paras 1325-1338, and for cases on the subject, see 46 Digest (reissue) 307-311, 2675-2707. Cases referred to in judgment Aitken v Bedwell (1827) M & M 68, 173 ER 1084, NP. Grinham v Willey (1858) 4 H & N 496, 157 ER 934, Exch. Harnett v Bond [1925] AC 669, [1925] All ER Rep 110, HL. Meering v Grahame-White Aviation Co Ltd (1920) 122 LT 44, CA. Pike v Waldrum and Peninsula é Oriental Steam Navigation Co [1952] 1 Lloyd’s Rep 431. Appeal ‘The plaintf, Marina Davidson, appealed against the decision of Judge Roberts sitting in the Llangefni County Court on 12 December 1991 withdrawing the plaintiff's claim against the second defendant, Frances Clarke Ltd, for damages for false imprisonment from the jury trying the action. At the outset of the trial the plaintiff had submitted to judgment against her in favour of the first defendant, the Chief Constable of North Wales. The facts are set out in the judgment of Sir Thomas Bingham MR. Anthony Clover (instructed by Patrick Blackmore, Menai Bridge) for the plaintiff. Andrew Lewis (instructed by Ford & Warren, Leeds) for the second defendant. SIR THOMAS BINGHAM MR. This is an appeal against a decision of Judge Roberts given in the Llangefni County Court on 12 December 1991. The decision appealed against was made in the course of the hearing of a civil claim for false imprisonment which was proceeding before the learned judge and a jury and was to the effect that the case should be withdrawn from the jury. ‘The plaintiff in one of the actions which was proceeding before the judge, then called Marina Davidson, now appeals against the learned judge’s decision contending that there was an issue which the learned judge should properly have left to the jury. The facts giving rise to the appeal fall within a small compass and they took place within a very short period of time. On 30 June 1988 the plaintiff, Marina Davidson (now called Mrs Astbury), was with a friend named Mr Robert Halford in Woolworths store at Bangor in North Wales where they were shopping. Mr Halford bought and paid for a cassette priced at £2:99. There is no doubt whatever that that was an entirely honest and bona fide transaction. Having paid for the cassette he and Miss Davidson did not leave the store at once. He retuned to where she was standing by the cassette counter and they stood there for a period of some minutes talking together. While they were doing that a store detective, Mrs Jane Yates, who was employed by Frances Clarke Ltd as a store detective, observed them. It is important to note that she started observing them, so it would appear, at that stage and after the stage at which the cassette had been duly paid for. Having watched them she gained the impression that the cassette which she could see them handling had been obtained dishonestly and without paying. It is the case that Miss Davidson and= CA__ Davidson v Chief Constable (Sir Thomas Bingham MR) 599 Mr Halford left the store without paying for the cassette during the period that Mrs Yates was watching them. She followed them out of the store and saw them go into a cafe across the street where they had a cup of coffee. Mrs Yates herself went into a nearby branch of W H Smith to telephone the police as a result of which two police constables named Walker and Garland came on the scene. They saw Mrs Yates at or outside W H Smith and she told them what she had seen. When she came to give evidence she indicated she had told them that she was not 100% sure that she had seen Miss Davidson or Mr Halford take the cassette without paying but the police constables in their evidence denied that there had been any qualification at all about the information that she gave. Certainly, no qualification of that kind is to be found in the contemporary statement which she made in writing and signed. The learned judge concluded that probably there was no qualification such as she suggested and he dealt with the case on that basis. Having received the information which Mrs Yates gave them the two police constables went into the cafe and Mrs Yates pointed out the plaintiff and Mr Halford. She then left and was not present when the next events took place. ‘The two police constables approached Miss Davidson and Mr Halford. Pc Walker told them that he was arresting them on suspicion of shoplifting. The plaintiff herself was silent. Mr Halford denied that he had taken anything dishonestly. There was further discussion in the course of which Mr Halford produced a cassette that no longer had its cellophane wrapping on, he having earlier removed that, and he was unable to produce the receipt which he had received on purchasing the cassette, having thrown it away. The fact that he could not produce a receipt but did, nonetheless, have the cassette confirmed the police officers’ suspicions that the cassette had been taken unlawfully. The plaintiff and Mr Halford were taken to the police station. They were detained and questioned but they were released after a period of about two hours. The reason for their release without charge was that a message was received from a shop assistant at Woolworths to the effect that Mr Halford had paid for the cassette and that the shop assistant who had served him remembered doing so and remembered his appearance. It is, therefore, quite clear that the plaintiff and Mr Halford were innocent of theft and it is right that should be made quite clear since they undoubtedly suffered some embarrassment and humiliation as a result of this incident. Miss Davidson then instructed a solicitor. It appears that Mr Halford also instructed a different solicitor. Miss Davidson’s solicitors wrote to the defendants on 5 July and received an answer by letter on 13 July which we have seen. It is correct to observe that the account of the matter given in the letter is not correct. Mrs Yates’s employers say: ‘She did not approach or arrest your client and there was no query on your client’s behaviour. The police were not called, but happened to be passing. We must point out that your client’s behaviour was in no way thought of as suspicious and all action taken was by the police.’ 1 observe in passing that it is very difficult to understand that letter since the police undoubtedly were called and the whole burden of Mrs Yates’s statement, was that she had been watching Mr Halford and the plaintiff and did consider their behaviour to be suspicious.600 All England Law Reports [1994] 2 AILER Proceedings were issued in May 1990 against (as first defendant) the Chief Constable of the North Wales Police and (as second defendant) the company who were the employers of Mrs Yates. A parallel action was brought by Mr Halford but since no appeal arises in that case it can be ignored. At the outset of the trial before the learned judge the plaintiff submitted to judgment against her in favour of the chief constable. The learned judge gives his reason for the decision made when he said in the course of his ruling: “At the beginning of the hearing, the plaintiffS submitted to judgment in favour of the chief constable on the ground that Constable Walker had been justified in arresting the plaintiff upon the reasonable suspicion that he had formed on the strength of the store detective’s account of what she had seen. The authorities upon which Constable Walker acted in arresting the plaintiffs, as is apparent from his evidence as I have recited it and as he himself confirmed, is s 24(6) [of the Police and Criminal Evidence Act 1984] ... which provides as follows: “Where a constable has reasonable grounds for suspecting that an arrestable offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence.” ‘The police constable’s evidence was recited by the leamed judge in the course of his judgment. Pc Walker said of the incident: ‘She [referring to Mrs Yates] said what she had witnessed. I then decided if I had reasonable suspicion. I did not need the store detective to tell me my job. I am not an agent. I act on information that witnesses give me. The store detective gave me information and I acted on it. What she did was to give me information and point them out. I was not acting under orders from her.” ‘The other officer, Pc Garland, also gave evidence which the learned judge recited, to this effect: “We arrested them because of what the store detective said. It was Constable Walker who actually arrested them. We were acting on the information received. We act on information that we receive. If we are not satisfied with it we don’t act upon it. We take the responsibility for an arrest that we make on information. The store detective did not say directly to us, “go and arrest them”; we don’t take orders from her; we are not her agents. The information that she gave us led me to believe that an offence had been committed; we were acting on it.’ It is pertinent to observe that the evidence of the two police officers was adduced by the plaintiff at the hearing before the learned judge and was accordingly not the subject of cross-examination. It is plain on the facts that Mrs Yates herself did not arrest, imprison, detain or restrain the plaintiff's liberty directly in any way herself. She gave information to the police constables and according to their evidence they acted on it. If she is liable, therefore, it can only be through the police constables either as her agents or, as Mr Clover who appears for the appellants would prefer to put it, as persons whom she procured to act as they did. It is however plain, as I have indicated, that the police constables acted under s24(6) of the Police and Criminal Evidence Act 1984. It was accepted that they had reasonable suspicion and acted in pursuance of that section and it is accepted that their action wasCA__ Davidson v Chief Constable (Sir Thomas Bingham MR) 601 proper. It, therefore, is correct, as the learned judge observed, that a somewhat anomalous situation arises if the appellant’s case is correct, since the defendant would be liable for an act of persons who were not themselves liable in respect of what they had done. The high watermark of the appellant's case derives from answers which Mrs Yates gave when she was cross-examined by counsel for the plaintiff. In the course of a series of answers she said that she expected information given by a store detective such as herself to carry weight with police officers. She intended and expected the police officers to act upon it. They had always done so in the past. She had never known of any occasion when they had failed to do so and accordingly she regarded the arrest as made on her behalf or for her. We, nonetheless, as I repeat again, have a case in which the constables, according to them, exercised their own judgments and effected the arrest pursuant to s 24(6) of the 1984 Act. Mr Clover complains that the judge wrongly withdrew the case from the jury but does not, I think, quarrel with the test which it was proper for the learned judge to apply, namely that he was certainly entitled and probably bound to withdraw the case from a jury if in all the circumstances, and on the evidence that had been given, a decision for the plaintiffs would be quashed upon appeal to this court as being either wrong in law or perverse. ‘The way in which the leamed judge put it in the course of his judgment appears most clearly in two passages, the first of which is where he said: “Iwas invited on behalf of the plaintiffs at the close of the evidence when submissions were being made to me to put an issue to the jury along these lines; did the officers make the arrests for the store detective on her behalf at her express or implied request? That issue is directed to the officers making the arrests. The arresting officer, Constable Walker, told the court that he was acting under s 24(6) and his colleague confirmed it. Of course, as I well appreciate, I have to look at the whole of the evidence, but Iam unable to find any sufficient evidence upon which the jury could reasonably find otherwise than as the officers said.’ The leamed judge then referred to the evidence again and to various authorities to which I will come and at the end of his judgment said this: ‘In the circumstances which I have set out I am unable to put the suggested question, or indeed any other question, to the jury and I am therefore withdrawing the case from them. Learned counsel for the plaintiffs put the ultimate question in the case in his opening to the jury in this way, whether the store detective is responsible in law for what the police did, namely arresting and detaining the plaintiffs; in my judgment that question must be answered in the negative. Accordingly, there will be judgment for the second defendants against each of the plaintiffs.” ‘The authorities to which the leamed judge made reference have been the subject of consideration in this court, ‘The first of them in order of time is the authority of Aitken v Bedwell (1827) M & M 68, 173 ER 1084. The case was one in which the master of an English merchant vessel lying in Odessa had procured that one of the members of his crew should be taken ashore and subjected to severe physical punishment at the hands of the Russian602 All England Law Reports [1994] 2 All ER authorities. Lord Tenterden CJ summing-up to the jury put the issue in this way: “The plaintiff contends that what was done on shore was the act of the captain, the defendant says it was the act of the Russian authorities only. The question for you is, Whether the punishment inflicted on shore was done by the constituted authorities, on the mere complaint of the defendant, or whether the defendant was the actor and immediate promoter of it? If you think the defendant merely preferred his complaint, and left the constituted authorities to act as they thought fit, the defendant is entitled to your verdict; if, on the other hand, you think he did more, and was active in promoting and causing the punishment to be inflicted, then he is answerable in this form of action.” Following that direction the verdict was given for the plaintiff, the evidence having been very clear that when the punishment was administered the defendant was himself standing by and ordering the punishment and throughout taking an active part in the proceedings on shore. Accordingly, even in that early authority one sees the germ of a principle that what distinguishes the case in which a defendant is liable from a case in which he is not is whether he has merely given information to a properly constituted authority on which that authority may act or not as it decides or whether he has himself been the instigator, promoter and active inciter of the action that follows. ‘The second authority in course of time is Grinham v Willey (1858) 4 H & N 496, 157 ER 934. The case was one in which a barmaid was detained on an accusation that she was party to a theft or receiving of stolen property. The complaint was made against her by the defendant who, it appears, summoned the police and himself signed the charge sheet in which the details of the offence were set out. The question as to whether in those circumstances the defendant was liable for the false imprisonment of the plaintiff was the subject of consideration by a number of judges. Pollock CB himself ruled (4 H & N 496 at 499, 157 ER 934 at 934): “A person ought not to be held responsible in trespass, unless he directly and immediately causes the imprisonment.’ Martin B opined that— ‘there should be no rule, upon the ground that the policeman must be taken to have given a true account of the matter. If so, the mere writing of the defendant’s name on the charge sheet does not make a defendant a trespasser.’ (See 4 H & N 496 at 499, 157 ER 934 at 934.) Bramwell B put it in this way (4 H & N 496 at 499-500, 157 ER 934 at 934): “An offence was committed; the defendant sent for a policeman, who made inquiry, and on his own authority arrested the plaintiff. The defendant signed the charge sheet; but in doing so he did nothing but obey the direction of the police. It may have been hard upon the plaintiff that she was imprisoned, but it was the act of the constable.” In that decision also the line seems to have been drawn at the point where the person actually effecting the arrest makes the decision to do so.CA __ Davidson v Chief Constable (Sir Thomas Bingham MR) 603 Taking the cases chronologically, the third case is Meering v Grahame-White Aviation Co Ltd (1920) 122 LT 44. Warrington LJ giving the first judgment said (at 47): ‘I think that that evidence satisfies me that the officers of the defendant company did not give the plaintiff in charge, but that in that matter the Metropolitan Police acted on their own responsibility, and by virtue of the powers which were conferred upon them as police constables. That being so, the arrest of the plaintiff by them was not wrongful, because I think that they had at the time they arrested him sufficient reasonable ground for suspecting that a felony had been committed, and that the plaintiff had been involved in the commission of that felony. | think, therefore, that the arrest by the Metropolitan Police was not wrongful, was made on their own responsibility, and not as agents of the defendant company.” Duke LJ said (at 50-51): “The causes of action which were alleged were two: The first was a claim of damages for false imprisonment. In the statement of claim there was alleged a false imprisonment of the plaintiff by the officers of the Metropolitan Police, acting at the instance and under the direction or at the request of the defendants, and that was the ground of claim in respect of false imprisonment. To my mind it is very significant that there was no other ground of claim. So far as that matter of the alleged false imprisonment is concerned, it is necessary to consider whether the facts as they appear afford any proof of the allegation that the defendants requested or directed the officers of the Metropolitan Police to arrest the plaintiff, The police have specific duties and specific powers in the matter of arrest for the purpose of enforcement of the criminal law. In this case it was clear that the prosecution had been instituted by the defendants. It was not disputed that the defendants had left it to the police to do what they considered necessary. Nothing more than that was proved, as I think, and in that state of the case, my view of the matter is that the arrest on the part of the police which follows the placing of the case in their hands to do their duty is not an arrest by a private prosecutor, and is an arrest by the police.’ ‘The third judgment was that of Atkin LJ. He said (at 55): “But the main imprisonment that was complained of in the pleadings, and that which no doubt was that which gave rise to the substantial complaint, was the imprisonment which took the form of arrest by the detective officer, the plaintiff's removal—conveyance the police called it— to the railway station, and locking him up in a cell on a February night and bringing him before the justices the next morning. | think that can only be brought home to the defendants by establishing that the police acted under their direction and with their authority, which comes to the same thing.’ In that case, therefore, although somewhat different language is used, the essential test that is applied is the same, namely whether the defendant gave the information to a prosecuting authority so that what followed was the result of that prosecuting authority or whether the defendants themselves were responsible for the acts that followed.604 All England Law Reports [1994] 2 All ER The fourth of the cases that I should mention, and the most recent, is Pike v Waldrum and Peninsula & Oriental Steam Navigation Co [1952] 1 Lloyd’s Rep 431. In that case the master of a vessel had in effect put a member of the crew ashore at Hobart in Australia and put strong pressure on the local authorities in Hobart to detain the crew member which they did, as it was held, unlawfully. There was, therefore, no question whatever but that the master of the vessel was calling for punishment of the crew member and that the local authorities acted improperly in acceding to that request. The test which was formulated by Barry J in the course of a lengthy judgment was put in this way (at 454): ‘I must now turn to what I consider to be the more difficult problem which concerns the defendants’ responsibility in law for the illegal arrest and imprisonment of the plaintiff that was carried out under the orders of the Naval Officer-in-Charge. Mr, Berryman contended that, under the Regulation, the Naval Officer-in-Charge had a discretion as to whether or not to order an arrest, and as this discretionary power was interposed between the acts of the first defendant and the arrest itself, the defendants are under no liability for the plaintiffs illegal arrest and imprisonment, He cited a number of authorities and relied in particular upon the case of Harnett v. Bond and Another,([1925] AC 669, [1925] All ER Rep 110). The order or warrant issued by the Naval Officer-in-Charge was, he submitted, equivalent to a warrant or other judicial order of a Court of Justice, which is clearly a novus actus interveniens absolving the person at whose instance it has been obtained from any action for false imprisonment.’ He then deals with an authority to which I need not refer and continues: ‘I agree with the plaintiff's submission that the functions of the Naval Officer-in-Charge were more closely akin to those of a police officer or other executive official who is entitled to exercise some independent judgment, but not a judicial discretion, before taking an accused person into custody. The authorities cited to me, to which | need not refer in detail, establish quite clearly to my mind that a person who requests a police officer to take some other person into custody may be liable to an action for false imprisonment; not so if he merely gives information upon which the constable decides to make an arrest.’ ‘That case was decided against the defendant on the facts but the principle upon which the learned judge relied appears plainly from that passage. ‘Accordingly, as it would seem to me, the question which arose for the decision of the learned judge in this case was whether there was information properly to be considered by the jury as to whether what Mrs Yates did went beyond laying information before police officers for them to take such action as they thought fit and amounted to some direction, or procuring, or direct request, or direct encouragement that they should act by way of arresting these defendants. He decided that there was no evidence which went beyond the ~ giving of information. Certainly there was no express request. Certainly there j was no encouragement. Certainly there was no discussion of any kind as to what action the police officers should take. ‘The crux of Mr Clover’s submission is that this case is different from the case in which an ordinary member of the public gives information to a police officer because this is a store detective, somebody better informed than an ordinary member of the public as to what was likely to happen upon making aCA _ Davidson v Chief Constable (Sir Thomas Bingham MR) 605 complaint, and somebody with a very clear intention and expectation as to what would happen. No doubt the store detective did have an intention and expectation as to what would happen. ‘The fact remains that the learned judge to my mind quite correctly held that what Mrs Yates did and said in no way went beyond the mere giving of information, leaving it to the officers to exercise a discretion which on their unchallenged evidence they did as to whether they should take any action or not. In those circumstances the learned judge was, as I think, entirely correct to withdraw the matter from the jury since it seems to me inevitable that had he left it to the jury, and had the jury found for the plaintiff, that verdict would have been open to challenge in this court which would have led to its being overruled. I, therefore, dismiss this appeal. STAUGHTON LJ. Section 24(6) of the Police and Criminal Evidence Act 1984 provides that where a constable has reasonable grounds for suspecting that an arrestable offence has been committed he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence. That applied to Pc Walker, who was the person who physically arrested Miss Davidson and Mr Halford. On that ground proceedings against the police were abandoned. That subsection could not apply to Mrs Yates, the store detective, because she was not a constable. In other circumstances she might have had the power of arrest under s 24(4), which enables any person to arrest without a warrant anyone whom he has reasonable grounds for suspecting to be committing such an offence. At the time of the arrest the offence, if there had been one, was no longer being committed. Section 24(5) might have applied to Mrs Yates. That provides that when an arrestable offence has been committed a person may arrest without a warrant anyone whom he has reasonable grounds to suspect is guilty of it. But there had been no offence committed in this case. So Mrs Yates had no power of arrest by the time that these two persons were in the cafe. Was there any evidence to go to the jury that she did arrest Miss Davidson and Mr Halford? It was not she who physically detained them. That was Pc Walker. She was not even there; but she had given information to the police officers and had pointed out Miss Davidson and Mr Halford to them. In those circumstances, like Sir Thomas Bingham MR, I would refer to the passage in the judgment of Barry J in Pike and Waldrum é Peninsular & Oriental Steam Navigation Company [1952] 1 Lloyd’s Rep 431 at 454: “The authorities cited to me, to which I need not refer in detail, establish quite clearly to my mind that the person who requests a police officer to take some other person into custody may be liable to an action for false imprisonment; not so if he merely gives information upon which the constable decides to make an arrest.” Whether a request by itself is sufficient to make a person liable does not arise in this case. What is clear in the passage I have read is that merely giving information is not enough. That does not give rise to false imprisonment. Mrs Yates did no more than that. However much one may look at evidence and analyse what possible consequences might or would arise from the information which she gave, the fact is that all she did was give the information. I too would dismiss this appeal.606 All England Law Reports [1994] 2 AIER WAITE LJ. 1 agree the appeal should be dismissed for the reasons given by the Sir Thomas Bingham MR and Staughton LJ. Appeal dismissed. L1Zysman Esq Barrister. Martin v Watson ‘COURT OF APPEAL, CIVIL DIVISION c RALPH GIBSON, MCCOWAN AND HOBHOUSE LJ 9 DECEMBER 1993, 21 JANUARY 1994 Malicious prosecution — Action — Essentials to action for malicious prosecution — Setting law in motion — Defendant providing false information to police ~ Police charging plaintiff with indecent exposure — Prosecution offering no evidence at hearing of charge — Plaintiff bringing action for malicious prosecution against defendant ~ Whether defendant setting law in motion - Whether defendant liable for malicious prosecution of plaintiff. ‘The plaintiff and defendant were neighbours between whom there had been a history of bad feeling for some 13 years culminating in the defendant making a complaint to the police that the plaintiff had indecently exposed himself to her. The plaintiff was arrested and charged with the offence of exposing his person with intent to insult, contrary to s 4 of the Vagrancy Act 1824, At the hearing of the charge the prosecution offered no evidence and the magistrates f dismissed the charge. The plaintiff then brought an action against the defendant in the county court for malicious prosecution, The judge found that the defendant had maliciously made a false allegation against the plaintiff and held that the defendant, having been actively instrumental in setting the law in motion against the plaintiff, was to be regarded as a prosecutor in setting the law in motion against him. The judge awarded the plaintiff damages of £3,500. 9 ‘The defendant appealed to the Court of Appeal. Held — (McCowan LJ dissenting) A person who made an allegation to the police knowing that the allegation was untrue with the intention that the police should act against the person accused was nevertheless not ‘setting the law in motion’ and was not the prosecutor for the purposes of the tort of malicious prosecution. For an action for malicious prosecution to succeed it was not sufficient for the plaintiff to show that the defendant maliciously provided false evidence with the intent that a prosecution should follow. Instead, it was necessary to show that the defendant had been actively instrumental in the application to the relevant judicial authority. The actual prosecution of the plaintiff had been undertaken by the police and the only steps in the prosecution had been taken by them. Accordingly, the defendant's involvement, which amounted to holding herself out as willing to give untruthful evidence in order to secure the conviction of the plaintiff, did not amount to the malicious prosecution of the plaintiff. The appeal would