LORD DENNING M.R. (reading the lead judgment)
On Thursday, April 9, 1959, a sum of £173 was stolen from a solicitor’s office in Dunstable. A man named Dallison was arrested and charged with the offence. On Monday, May 11, 1959, at quarter sessions, counsel for the prosecution offered no evidence against Dallison. It was a case, he said, of mistaken identity. Accordingly Dallison was found not guilty and was discharged. The police officer in charge of the case was Detective Constable Caffery [the defendant]. Dallison now sues Detective Constable Caffery for false imprisonment and malicious prosecution. The judge dismissed the claim. On the issue of false imprisonment the judge ruled that Detective Constable Caffery had reasonable cause to suspect that Dallison had committed the crime and was therefore justified in arresting him. On the issue of malicious prosecution, the judge ruled that there was not a want of reasonable and probable cause for the prosecution: and the action therefore failed. Dallison now appeals to this court.
Many points have been raised in the appeal. So many that I must state the facts in some detail. There is a solicitor in Dunstable called Mr. Blow. He employed a young lady, Miss Janet Phillips, as a shorthand typist. She was only 17. On Thursday morning, April 9, 1959, Mr. Blow was engaged in the magistrates’ court. He was defending a man called William Long. While he was out, Miss Phillips went to the bank to collect some money. She collected it in notes, returned, went into Mr. Blow’s office, and put £173 in the safe. She shut the door of the safe, but did not lock it. She left the keys in the lock. This was about a quarter past twelve. She was just leaving the office when she saw a man on the landing about three yards away, with his back towards her. She said to him: “Can I help you?” He turned round and faced her. He said: “No, I have got the wrong office.” She saw him at that moment full face, but then he started to go down the stairs leading to the way out. She went upstairs to her own room, signed two forms, and was just coming downstairs, when she heard a door bang. It was the door of Mr. Blow’s office. She hurried down and heard footsteps going down the stairs. She looked over the banisters and saw the figure of a man disappearing. She said he was wearing dark grey trousers. She went into Mr. Blow’s office, saw that the safe door was open, and, on looking inside, that the £173 was missing. She immediately informed the rest of the staff. Mr. Blow was informed. So were the police. Detective Constable Caffery came, together with Police Constable Young. This was about 12.30 p.m. Soon afterwards they were joined by Detective Inspector Hepworth. Miss Phillips told the police officers what had happened and gave a description of the man. It was this: “50 to 60 years of age, medium height, light grey hair pushed back and receding at the front and sides, medium build, clean shaven, fresh complexion, he was wearing a charcoal grey suit, no hat or overcoat, a collar and a tie but I do not know the colours.” She said in her statement: “I could identify this man again if I saw him.” The police officer thought that this description fitted a local man named Robinson. So they tried to find him. Detective Constable Caffery went to Robinson’s address to see if he was there. But he had left three weeks ago and was believed to be at sea. Meanwhile Detective Inspector Hepworth took Miss Phillips to the C.I.D. office in Dunstable, and showed her 10 photographs of known persons whom the description might fit, including Robinson. She did not pick out Robinson. But she picked out Edward George Dallison. She pointed to his photograph and said: “That’s the man.”
Now Dallison was a man well known to the police. He had a long list of convictions stretching from 1925 to 1953, including several for larceny. His last sentence was three years’ imprisonment in 1953. The larcenies were chiefly what were described as “in and out” jobs, such as stealing from a shop. When Detective Constable Caffery returned, Detective Inspector Hep-worth told him that Miss Phillips had not picked out Robinson, but she picked out Dallison. Detective Inspector Hep-worth told Detective Constable Caffery to make inquiries to see if Dallison had been in the area that day. He also circulated a description of Dallison as a man whom the police wanted to interview.
Detective Constable Caffery started making inquiries to try to find Dallison. He had his lunch and, as he was going home, he saw William Long (the man who was in the magistrates’ court that morning being defended by Mr. Blow) together with his father, James Long. The two men, father and son, were coming out of the Borough Arms public-house. Detective Constable Caffery knew that Dallison was the brother-in-law of William Long, and was known as “Nigger Dallison.” They all had criminal records. Detective Constable Caffery stopped to talk to them. William Long, the son, said facetiously to Detective Constable Caffery: “I’ll have to break in somewhere to raise £60 for my defence.” Detective Constable Caffery replied: “Well, you’ve got rich relatives. Nigger Dallison can fix you up with £60.” Whereupon James Long, the father, said: “Nigger Dallison was down here this morning.” This was, of course, important information for Detective Constable Caffery. He went back and reported it straight away. Next he tried to find out if anyone else had seen Dallison in Dunstable that day. He did not find anyone who had. In particular, he saw James Long again, and asked him if he knew anybody who could give evidence that Dallison was in town that morning. But by this time James Long had changed his attitude. He said he had not said that Dallison was there but his son had said it. This retraction did not impress Detective Constable Caffery. He took a full statement from Miss Phillips at 4 o’clock that afternoon. In it she said that she had identified one of the photographs as the man she saw. The police circulated the facts and named Dallison as wanted for the crime.
Two days afterwards, on April 11, 1959, Dallison was found gaming in a public house in London. He was summoned before the Old Street magistrate and appeared on the morning of Monday, April 13, 1959. He was fined a pound or two but was then detained by the Old Street police. This was about 11.15 a.m. They told him that he was wanted for an offence at Dunstable. He strenuously denied it. They telephoned to Dunstable. Detective Constable Caffery and Police Constable Young went up to London to fetch him. Before they left Dunstable Detective Constable Caffery got Miss Phillips to go along to the police station and asked her to look at the 10 photographs again. She again positively, without the slightest doubt, picked out Dallison. The two officers then drove up to London, and at 3 o’clock in the afternoon saw Dallison at Old Street police station. Detective Constable Caffery cautioned him and told him that he answered the description of a man who had stolen £173 from a solicitor’s office in Dunstable, and he was being taken back to Dunstable in connection with it. He said: “God love a duck. I was working at 40, Millfields Road all day. You are mistaken. What makes you think I stole any money at Dunstable?” Now 40, Millfields Road is in Clapton in the East End of London, 34 miles from Dunstable.
Before the police officers took Dallison back to Dunstable, they did certain things which have since been criticised and are alleged to constitute false imprisonment. They first took Dallison to his own home at Thistlewaite Road not far away. His wife was out, so they did not go in. They then took him to 40, Millfields Road in Clapton where he said he was working on Thursday the 9th. They saw the people next door at No. 38, Millfields Road. They were Mr. and Mrs. Stamp, very respectable and reliable people. Mr. Stamp told the police officers that he had given Dallison tea on the morning of Thursday, April 9 at about half past 10 or between half past 10 and 11. After seeing Mr Stamp, the officers then took Dallison back to his own home again in Thistlewaite Road. His wife was then in. They searched the house with his consent, but found nothing. The officers then took him back to Old Street.
At some time Detective Constable Caffery asked Dallison whether he had anyone to support his alibi. He said he was working at 40, Millfields Road with a man named “Jock.” He did not know anything about him. He did not know his surname, nor where he lived. He said he had met him in a public-house some weeks earlier. But he could not say which public-house it was.
At 5.25 p.m. on April 13 the officers left London by car with Dallison for Dunstable. They got there at 6.35 p.m. So it took one hour and 10 minutes. On the way Dallison told the police officers that the owner of No. 40, Millfields Road had visited him on the afternoon of the 9th at the house where he was working. The officers afterwards verified that that was correct.
Shortly after they got back to Dunstable, an identification parade was held. It was conducted by Chief Inspector John. There were 11 men there of somewhat similar appearance to Dallison. Miss Phillips went up and down the parade and looked at each man closely. She asked each man to say: “No, this is the wrong office.” Afterwards she said (according to the police officers): “There is only one man here who I think it is.” She pointed to Dallison and went up and touched him. But according to Dallison, she said: “I think that is the man but I am not sure.” After the identification parade Detective Constable Caffery took Miss Phillips into the office of the inspector, Chief Inspector John, and said to her: “Now, are you absolutely certain that that was the man, because you must be absolutely certain?” She replied: “Yes, I am absolutely certain that is the man I saw that morning – I am absolutely sure “it was him.” Detective Constable Caffery then went back to Dallison and told him that he would be charged. According to Dallison, however, Detective Constable Caffery said to him: “Well, Nigger, I have been talking to the young lady and she is positively sure it was you.” At about 8.15 p.m. Detective Constable Caffery charged Dallison with the offence. He said: “I didn’t do it, sir.” He was detained in custody.
On the morning of the next day, Tuesday, April 14, Dallison was brought up in the magistrates’ court. Formal evidence of arrest was given. He was remanded in custody for a week until April 21. On the afternoon of April 14 Detective Constable Caffery went up to London and saw Mr. and Mrs. Stamp, who lived next door to 40, Millfields Road, and Mrs. Lansman, the owner of 40, Millfields Road. He took statements from them which were clearly material. They showed that on Thursday, April 9, Mr. Stamp gave Dallison tea sometime between 10.30 and 11 – nearer 11 o’clock than 10.30. He was then dressed in his working clothes. Mrs. Lansman saw him at about 1.40 p.m. on Thursday the 9th, when she visited 40, Millfields Road; and at that time Dallison was working there with another man. These witnesses were completely trustworthy. So that, if it was Dallison who stole the money, he must, between 11 a.m. and 1.40 p.m., have driven in a car from Clapton to Dunstable, 34 miles, changed his clothes, got there at 12.15 p.m., stolen the money, and got back again, with clothes changed, by 1.40 p.m. It would need, as Mr. Jukes said, “split-second timing” for Dallison to do this. It was so unlikely that he could do it that the evidence of these witnesses was undoubtedly much in his favour. Detective Constable Caffery submitted the statements to his superior officers; and they were handed, with all the others, to the solicitor who was instructed to prosecute.
On Tuesday, April 21, Dallison was brought up again before the magistrates. The solicitor called only Miss Phillips and Detective Constable Caffery to give evidence. The solicitor did not tell the magistrates of the statements of Mr. and Mrs. Stamp and Mrs. Lansman. I will consider, later on, this omission. Miss Phillips gave evidence of identification. Detective Constable Caffery gave other evidence, some of which has been criticised. Speaking of the occasion when he went up to London to fetch Dallison, Detective Constable Caffery said that after he had taken Dallison into custody at Old Street: “The accused was then conveyed to Dunstable police station.” Detective Constable Caffery did not mention in his deposition that he had taken Dallison to his own house or to 40, Millfields Road. Much has been made of this omission; but it seems to me it may well have been due to the way in which the solicitor asked the question.
On April 21 Dallison was committed for trial to Bedford Quarter Sessions. But he was released on bail meanwhile. On May 11, 1959, Dallison came up for trial. Counsel for the prosecution, Mr. Niall MacDermot, offered no evidence against Dallison and Dallison was acquitted. Now at the hearing, Mr. MacDermot made a statement, which has figured largely in this case. It was recorded by the shorthand writer at the time. We do not know whether it was correctly recorded or not, but this is what the shorthand writer’s note of it disclosed, when transcribed: “(The Chairman): ‘The evidence of the prosecution rests almost entirely on the evidence of one lady?’ (Counsel for the prosecution): ‘Yes, sir, she is 16 years of age, and she only had a very short time to see the person: she had only a momentary glimpse of the man and the way in which suspicion came to fall on the accused was rather unusual. That often happens in cases of this kind, where police make inquiries, and suspicions fall on a particular person, they are able to show photographs and so on to an identifying witness. She was shown a collection of photographs but the person she indicated was not the accused man, and I think the matter would have been ended there except for a quite astonishing coincidence that the accused happened to be a relation by marriage with another man who was in court that day and who” was represented by the man from whom this money was stolen. That, not unnaturally, made the police feel that was an identification they must investigate and take seriously; and whereas there was some evidence that he had been in London that day – the defendant [Dallison] said at once when he was challenged that he had been working on a building site that day, and as far as the police inquiries went it would just have been possible for him to come to Dunstable, commit the offence and return – I do understand my learned friend has other quite independent alibi evidence which carries the matter a great deal further and leaves definitely no doubt at all that a mistake has been made in this case,'” and he finished: “If you think, sir, it is the right course to take, I will offer no evidence.” So Dallison was acquitted. Two and a half years later, on September 12, 1961, he issued this writ against Detective Constable Caffery for false imprisonment and malicious prosecution.
Such being the facts I turn to consider the issues canvassed before us.
(A) False imprisonment. Two points were raised on false imprisonment. (1) Was Detective Constable Caffery at fault in making the arrest? (2) Was he at fault in taking Dallison round London before taking him back to Dunstable?
(1) The arrest: The burden was on Detective Constable Caffery to prove that he had reasonable cause for suspecting that Dallison had committed the crime. That is a question for the judge to decide, not the jury. The evidence on this point was all one way. When Detective Constable Caffery went up to London to arrest Dallison, he had trustworthy information that Miss Phillips from the photographs had picked out Dallison as the man. In answer to this, Mr. Jukes placed great reliance on Mr. MacDermot’s statement to quarter sessions. He said that this statement was evidence that Miss Phillips, when she was first shown the collection of photographs, did not pick out Dallison: and that the issue should have been left to the jury whether she did so or not. I cannot agree with this contention, for three reasons: First, what counsel says in one case is not evidence in any subsequent case, except as an admission by his client, and then only if it can be inferred that his client authorised it. Detective Constable Caffery was not Mr. MacDermot’s client: and in any case Detective Constable Caffery did not authorise this statement. He was not even present when it was made. Secondly, the statement of Mr. MacDermot is quite inconsistent with the known facts of the case. It must have been made by a slip of the tongue or it must have been incorrectly taken down by the shorthand writer. It seems to me that Mr. MacDermot must have said, or intended to say, this: “She was shown a collection of photographs but the person she indicated was not (the man whom the police suspected but was) the accused man.” Thirdly, the issue of “reasonable cause” is for the judge. He is not bound to leave to the jury every single issue of fact which may bear on it. He is entitled to make his own findings of fact. He need only leave to the jury the issues on which he feels he needs their help. The evidence here was overwhelming that Miss Phillips, when shown the photographs, did in fact pick out Dallison as the man. The judge was entitled to act on that evidence, and to hold, as he did, that as she had picked out Dallison (and Detective Constable Caffery knew that she had picked him out) it afforded reasonable cause for him to suspect that Dallison had committed the crime. Detective Constable Caffery was therefore not guilty of false imprisonment in making the arrest.
(2) The taking of Dallison round London. Mr. Jukes next said that, even if the arrest was justifiable, nevertheless it was not lawful for Detective Constable Caffery to take Dallison to 40, Millfields Road and not to take him straight back to the police station at Dunstable. This raises an interesting point as to the power of the police in regard to a man whom they have in custody. Mr. Jukes says that a constable has no more power than a private person. I cannot agree with this. So far as arrest is concerned, a constable has long had more power than a private person. If a constable makes an arrest without a warrant, he can justify it on the ground that he had reasonable cause for suspecting that the accused had committed a felony. He does not have to go further (as a private person has to do) and prove that a felony has in fact been committed. So far as custody is concerned, a constable also has extra powers. If a private person arrests a man on suspicion of having committed a felony, he cannot take the man round the town seeking evidence against him: see Hall v. Booth1 The private person must, as soon as he reasonably can, hand the man over to a constable or take him to the police station or take him before a magistrate; but so long as he does so within a reasonable time, he is not to be criticised because he holds the man for a while to consider the position: see John Lewis and Co. Ltd. v. Tims10, A constable,however, has a greater power. When a constable has taken into custody a person reasonably suspected of felony, he can do what is reasonable to investigate the matter, and to see whether the suspicions are supported or not by further evidence. He can, for instance, take the person suspected to his own house to see whether any of the stolen property is there; else it may be removed and valuable evidence lost. He can take the person suspected to the place where he says he was working, for there he may find persons to confirm or refute his alibi. The constable can put him up on an identification parade to see if he is picked out by the witnesses. So long as such measures are taken reasonably, they are an important adjunct to the administration of justice. By which I mean, of course, justice not only to the man himself but also to the community at large. The measures must, however, be reasonable. In Wright v. Court3 a constable held a man for three days without taking him before a magistrate. The constable pleaded that he did so in order to enable the private prosecutor to collect his evidence. That was plainly unreasonable and the constable’s plea was overruled. In this case it is plain to me that the measures taken were reasonable. Indeed, Dallison himself willingly co-operated in all that was done. He cannot complain of it as a false imprisonment. I hold, therefore, that the judge was right in rejecting the claim of false imprisonment.
(B) Malicious prosecution. Three points were raised on malicious prosecution: (1) Whether the judge asked the right question: (2) Whether he ought not to have asked a question as to “honest belief”: (3) Whether the judge’s ruling was right.
(1) Whether the judge asked the right question: The judge asked the jury this one question: “Did Miss Phillips appear to be positive in her identification of the plaintiff?”, to which they answered “Yes.” Mr. Jukes said that that was an omnibus question which should have been split into three separate questions, such as: Did she appear to be positive (i) when shown the collection of photographs: (ii) when she attended the identification parade: (iii) in the inspector’s office? I do not think that this criticism is justified. It is a mistake to suppose that in these cases the judge must ask a question of the jury on every fact in issue. If that were the law, the questions to the jury might have no end. It is for the judge, and not the jury, to decide the question of reasonable cause. He need only ask questions on the salient issues of fact on which he needs the help of the jury. In this case one question was enough. By answering “Yes,” the jury obviously indicated that they thought that Miss Phillips was positive in her identification at every stage. If they thought otherwise, they would have given some such answer as this: “We think she was not positive at first but was later,” or something of that kind. I am quite satisfied that their finding means that she was positive at every stage of the case.
(2) The question of honest belief: Mr. Jukes submitted that the judge should have put to the jury the question of “honest belief in guilt.” He should have asked them the time-honoured question: did the defendant honestly believe that the plaintiff was guilty? I know that question has been asked of juries for well over 150 years now, but it has caused a cartload of trouble. The House of Lords in Glinski v. McIver4 pointed out its defects. I hope it will now be cast into the limbo. It is only to be used in the most exceptional circumstances. Mr. Jukes sought to point out several exceptional circumstances to justify it in this case. Thus he pointed out that Dallison had given evidence that, at the identification parade, Miss Phillips was not at all sure of his identity, in that, according to Dallison, she said: “I think it is the man but I am not sure.” Mr. Jukes said that if that evidence was accepted, it showed that Detective-Constable Caffery was knowingly putting forward a false case. This evidence by Dallison is very similar to the evidence given by Glinski in the House of Lords case. It is in flat contradiction to every known fact: and it should not be made a ground for leaving the question of “honest belief” to the jury. Else it would mean that every police officer would be at the mercy of every accused who happened to be acquitted.
Next, Mr. Jukes pointed out that, at the committal proceedings, the evidence of Mr. and Mrs. Stamp and Mrs. Lansman was not made available to the magistrates. I do not see that this should be taken against Caffery. He did not conceal these statements. He put them before his superior officers and also before the solicitor for the prosecution. It was not his fault that the solicitor did not think it necessary to put them before the magistrates. Nor do I think the solicitor need have done. The duty of a prosecuting counsel or solicitor, as I have always understood it, is this: if he knows of a credible witness who can speak to material facts which tend to show the prisoner to be innocent, he must either call that witness himself or make his statement available to the defence. It would be highly reprehensible to conceal from the court the evidence which such a witness can give. If the prosecuting counsel or solicitor knows, not of a credible witness, but a witness whom he does not accept as credible, he should tell the defence about him so that they can call him if they wish. Here the solicitor, immediately after the court proceedings, gave the solicitor for the defence the statement of Mr. and Mrs. Stamp; and thereby he did his duty.
Lastly, Mr. Jukes referred to the evidence given by Caffery before the magistrates; in particular, that he omitted any reference to the visit to Millfields Road and to Dallison’s house. The jury might, he said, take the view that Caffery was keeping evidence back. I think that this is far too slender a basis to warrant the question of “honest belief” being put to the jury. I am quite satisfied that in this case there was no need for the question to be put.
(3) Reasonable and probable cause. The final point taken by Mr. Jukes was on the general question whether there was any evidence on which the judge could find as he did that there was reasonable and probable cause for the prosecution. He said he should have found that there was a want of reasonable and probable cause. I cannot accede to this suggestion. It seems to me that the positive identification by Miss Phillips, coupled with the statement by James Long (which I think can be taken into account, despite the fact that he afterwards retracted it) and the phantom “Jock,” all show that Caffery had reasonable and probable cause for the prosecution. True it is that Dallison was innocent all the time. But that is no reason for making a police officer liable when he has only done his duty in investigating a crime. I would dismiss the appeal.
DANCKWERTS L.J. I agree and I have not anything to add.
DIPLOCK L.J. I, too, would dismiss this appeal. It is common ground in this case that a felony had in fact been committed. Where this is so, the common law as to the right of a person to arrest, detain and prosecute another person whom he suspects of having committed the felony is, I think, simpler and more sensible than Mr. Jukes, in his able and ingenious argument for the plaintiff, has suggested – and so are the respective functions of judge and jury at the trial of the action. It is in the public interest that felons should be caught and punished. At common law a person who acts honestly and reasonably in taking steps to serve this public interest commits no actionable wrong. What is honesty in this connection does not change: what is reasonable changes as society and the organisation for the enforcement of the criminal law evolves. What was reasonable in connection with arrest and detention in the days of the parish constable, the stocks and lock-up, and the justice sitting in his own justice room before there was an organised police force, prison system, or courts of summary jurisdiction, is not the same as what is reasonable today. Eighteenth- and early nineteenth-century authorities are illustrative of what was reasonable in the social conditions then existing. They lay down no detailed rules of law as to what is reasonable conduct in the very different social conditions of today.
The rule that a person who arrests, detains or prosecutes a suspected felon commits no actionable wrong if he acts honestly and reasonably applies alike to private persons and to police officers, but what is reasonable conduct in the circumstances may differ according to whether the arrestor is a private person or a police officer. One difference, too well settled now by authority to be altered, is that a private person can only arrest if a felony has in fact been committed, whereas a police officer can do so if he reasonably believes that a felony has been committed; but this, together with the distinction between felony and misdemeanour, is, I believe, the only respect in which the common law has become fossilised. In all others the rule of reasonableness applies. Where a felony has been committed, a person, whether or not he is a police officer, acts reasonably in making an arrest without a warrant if the facts which he himself knows or of which he has been credibly informed at the time of the arrest make it probable that the person arrested committed the felony. This is what constitutes in law reasonable and probable cause for the arrest. Since arrest involves trespass to the person and any trespass to the person is prima facie tortious, the onus lies on the arrestor to justify the trespass by establishing reasonable and probable cause for the arrest. The trespass by the arrestor continues so long as he retains custody of the arrested person, and he must justify the continuance of his custody by showing that it was reasonable. What is reasonable conduct on the part of a police officer in this respect may not be the same as what would be reasonable conduct on the part of a private arrestor. This is explicit in the early authorities cited by Lord Porter in Lewis (John) and Co. Ltd. v. Tims5 and implicit in the actual decision in that case, which was concerned with the duty of a private arrestor to deliver up custody of his prisoner to a police officer. If Lord du Parcq’s dictum in Christie v. Leachinsky6 was intended to state otherwise, I do not think that it was correct. To prosecute a person is not prima facie tortious, but to do so dishonestly or unreasonably is. Malicious prosecution thus differs from wrongful arrest and detention, in that the onus of proving that the prosecutor did not act honestly or reasonably lies on the person prosecuted. A person, whether or not he is a police officer, acts reasonably in prosecuting a suspected felon if the credible evidence of which he knows raises a case fit to go to a jury that the suspect is guilty of the felony charged. This is what in law constitutes reasonable and probable cause for the prosecution.
One word about the requirement that the arrestor or prosecutor should act honestly as well as reasonably. In this context it means no more than that he himself at the time believed that there was reasonable and probable cause, in the sense that I have defined it above, for the arrest or for the prosecution, as the case may be. The test whether there was reasonable and probable cause for the arrest or prosecution is an objective one, namely, whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe that there was reasonable and probable cause. Where that test is satisfied, the onus lies on the person who has been arrested or prosecuted to establish that his arrestor or prosecutor did not in fact believe what ex hypothesi he would have believed had he been reasonable (see Herniman v. Smith7 per Lord Atkin). In the nature of things this issue can seldom seriously arise.
Next as to procedure. In arresting, detaining or prosecuting a suspected felon a person is acting in furtherance of the administration of justice. It is a well-settled rule of procedure that the question whether in so doing he is acting reasonably is one to be decided by the judge. It may be that this rule reflects the judicial distrust of Jacobinism among juries at the formative period of this branch of English law; but it can at least be rationalised on the ground that a judge, by reason of his office and his experience, is better qualified than a juryman to determine what conduct is reasonable or unreasonable in furtherance of the administration of justice. In those days, however, the jury was the only tribunal which at common law was competent to determine disputed issues of fact. If there was conflicting evidence as to what had happened, that is, as to what the conduct of the defendant in fact was, the jury alone was competent to resolve the conflict. But when what had happened was established, whether by uncontradicted evidence or, in case of conflict, by the jury’s finding of fact, it was for the judge to rule whether the defendant’s conduct was reasonable or unreasonable. This is still the position today where an action for false imprisonment or malicious prosecution arising out of the arrest, detention or prosecution of a suspected felon is tried by judge and jury. It is for the judge to decide what facts given in evidence are relevant to the question of whether the defendant acted reasonably. It is thus for him to decide, in the event of a conflict of evidence, what finding of fact is relevant and requisite to enable him to decide that question. But a jury is entitled to base findings of fact only on the evidence called before it and, as in any other jury trial, it is for the judge in an action for false imprisonment or malicious prosecution to decide whether the evidence on a relevant matter does raise any issue of fact fit to be left to a jury. If there is no real conflict of evidence, there is no issue of fact calling for determination by the jury. This applies not only to issues of facts as to what happened, on which the judge has to base his determination whether the defendant acted reasonably, but also to the issue of fact whether the defendant acted honestly, which, if there is sufficient evidence to raise this issue, is one for the jury. (See Herniman v. Smith8 For the reasons already indicated, however, where there is reasonable and probable cause for an arrest or prosecution the judge should not leave this issue to the jury except in the highly unlikely event that there is cogent positive evidence that, despite the actual existence of reasonable and probable cause, the defendant himself did not believe that it existed: see Glinski v. McIver.
In the light of this summary of what I believe to be the relevant law, I hope I can deal with Mr. Juke’s contentions briefly.
On false imprisonment he contends that the judge ought to have left to the jury the question whether Miss Phillips indentified Dallison’s photograph when it was first shown to her by Detective Inspector Hep-worth. On any view this would not be the relevant question. The defendant was not present at that identification. He was informed about it by Detective Inspector Hep-worth, a credible informant. His evidence that he was so informed was not even cross-examined to. In any event there was, in my view, no evidence fit to go before a jury which conflicted with Detective Inspector Hepworth’s evidence that Miss Phillips did identify Dallison’s photograph. Mr. Jukes relied solely on what a shorthand writer who was not called thought that Mr. MacDermot, counsel for the prosecution, had said when announcing his intention of proffering no evidence at Bedford Quarter Sessions. Whatever statement of fact Mr. MacDermot made, it was not admissible evidence of the facts stated. It was hearsay. Counsel appearing for the Crown in a criminal prosecution is not the agent of the person bound over to prosecute to make admissions on his behalf. In any event, what Mr. MacDermot was reported as saying did not make good sense. It is common ground that he must in some respects have been misreported, but in what respect no one knows. The judge would, in my view, have been quite wrong to have left any question to the jury as to Miss Phillips’ identification of Dallison’s photograph before his arrest.
What, then, was the position at the date of Dallison’s arrest? His photograph had been identified by Miss Phillips on April 9 and that identification had been confirmed by her on April 13. James Long had blurted out the information that Dallison was in Dunstable on the relevant date, but had retracted when he knew that investigations were being made into the crime. Here was ample reasonable and probable cause for the arrest. When arrested, Dallison supported his protestation of innocence by an alibi that he was working at Clapton. This, he claimed, could be supported by a man, who was working with him as his employee but whom he knew only as “Jock,” whose address was unknown to him and whom he had encountered in a public-house which he could not identify – an alibi with a familiarly suspect ring. Instead of taking Dallison straight to Dunstable the defendant, at Dallison’s request, took him to Clapton to see whether or not there were witnesses there to his alibi. The only witness then found there could say only that Dallison was at Clapton at an hour which would have given him time to get to Dunstable and commit the crime. The defendant also took Dallison to his own house near by, though not at his request, and with his consent searched the house and found nothing incriminating. He was then taken back to Dunstable.
Mr. Jukes, in reliance on such old cases as Hall v. Booth10 and Wright v. Court,11 has submitted that as a matter of law the defendant was bound to take Dallison by a direct route to Dunstable and was not entitled to take him anywhere else for the purpose of obtaining evidence, whether incriminatory or exculpatory of Dallison. In my view, the only question (and it was one for the judge, not for the jury) was whether the defendant acted reasonably. It cannot be credibly suggested that Dallison would have been brought before a magistrates’ court or bailed by the police at Dunstable one moment earlier if he had been taken direct to Dunstable. This, of course, is a relevant consideration. Seeing that he was protesting his innocence, it was in Dallison’s own interest, and it was, in part at least, at his request, that he was taken to his place of work to see if his alibi was verifiable, for had it been credibly confirmed, he would have been released. He suffered no harm by being taken to his own house, and it was in his own interest, if he was innocent, that the search of his house, which he knew would have negative results, should take place without delay and in his presence. Furthermore, the defendant as a police officer had a duty to seek to recover the proceeds of the theft and for that purpose to search the house of the suspected thief as soon as possible. In all the circumstances the judge was quite right in holding that he acted reasonably.
On arrival at Dunstable police station, Dallison, with his consent, was put on an identification parade. He was picked out by Miss Phillips; with what appearance of assurance she picked him out was the subject of conflicting evidence. Next morning, April 14, he was charged at the magistrates’ court and remanded in custody for a week. No more than formal evidence of arrest was given. The next day statements were obtained from credible witnesses which showed that Dallison had in fact been in Clapton on the day of the theft: but only at times which would have still enabled him to be in Dunstable at the time of the theft. Only the elusive and anonymous “Jock” could support Dallison’s alibi at the critical time, and Dallison could or would give no information which would enable “Jock” to be traced. In these circumstances the judge took the view that if Miss Phillips appeared to have been positive in her identification of Dallison as the man who was present in the office at the time of the theft, the defendant had reasonable and probable cause to proceed with the charge against Dallison. In taking this view the judge was, I think, right, particularly as, although, in the light of his subsequent retraction of his statement that Dallison was in Dunstable on April 9, Jack Long was unlikely to make a satisfactory witness for the prosecution, his original statement made it reasonable to suppose that Dallison’s unsupported alibi was false and could be broken down on cross-examination. The judge accordingly left to the jury the question whether Miss Phillips appeared to be positive in her identification of the plaintiff. I think that he left the right question of fact to the jury. I do not see why he should leave any other, or break it down, as Mr. Jukes suggests he should, into a series of questions relating to each of the occasions on which Miss Phillips identified Dallison or his photograph. After all, what was vital was whether, as the net result of her two identifications of Dallison’s photograph and her identification of him in the flesh at the identification parade, she did appear to be positively convinced that Dallison was the man whom she had seen in the office on the day of the theft. The only complaint that could be made of the judge’s summing-up on this question was that he did, somewhat inconsistently, refer to the shorthand writer’s note of Mr. MacDermot’s statement at quarter sessions as if it were evidence which the jury were entitled to regard as conflicting with that of Detective Inspector Hep-worth as to what had happened when Miss Phillips was first shown the collection of 10 photographs, which included that of Dallison. For reasons which I have already stated, I do not think that the judge should have done so, but this error could only operate in favour of Dallison. He cannot complain of it.
Next, Mr. Jukes contends that there was evidence fit to be left to the jury that the defendant did not honestly believe that the credible evidence known to him raised a case against Dallison fit to go to a jury. This contention seems to me to be based on the erroneous proposition that it is the duty of a prosecutor to place before the court all the evidence known to him, whether or not it is probative of the guilt of the accused person. A prosecutor is under no such duty. His duty is to prosecute, not to defend. If he happens to have information from a credible witness which is inconsistent with the guilt of the accused, or, although not inconsistent with his guilt, is helpful to the accused, the prosecutor should make such witness available to the defence (see Rex v. Bryant and Dixon12. But it is not the prosecutor’s duty to resolve a conflict of evidence from apparently credible sources: that is the function of the jury at the trial. The prosecutor’s knowledge that there is such a conflict does not of itself constitute lack of reasonable and probable cause for the prosecution, nor is it inconsistent with the prosecutor’s honest belief that there is a case against the accused fit to go to a jury. In the present case the information known to the defendant which supported Dallison’s alibi was not inconsistent with his guilt, for it left time enough for him to get to Dunstable, commit the theft, and return to Clapton. Furthermore, the prosecuting solicitor acted with more than necessary propriety in that not only the relevant witnesses but also their statements were made available to Dallison’s solicitor immediately on Dallison’s committal. There was here no evidence that the defendant did not honestly believe that there was a case against the plaintiff fit to go to a jury: nor was there in the fact that he did not in his deposition in the magistrates’ court volunteer the information that he had made inquiries with inconclusive results into Dallison’s alibi before bringing him from Old Street police court to Dunstable. This was in any event inadmissible evidence in chief and Dallison did not choose to elicit it in cross-examination. The judge, as in most cases of malicious prosecution, was in my view right in refusing to leave the question of honest belief to the jury.
It will be evident that I also think that there is no merit in the final and faintly argued submission that there was no reasonable and probable cause for the prosecution.
Appeal dismissed with costs, not to be enforced without further order.
Leave to appeal to House of Lords refused.