A judge was right to strike out a claim for malicious prosecution and false imprisonment in circumstances where a claimant alleged police falsity and there was no evidence on which a jury could properly have found in his favour.Appeal by the claimant ('C') from an order made by Judge Morgan on 8 November 2002 at Liverpool County Court striking out C's claim for damages for false imprisonment, malicious prosecution and misfeasance in a public office. The claim arose from an attempted robbery that took place at a betting shop. Two shop assistants were held up by a man armed with a sawn-off shotgun who eventually panicked and left the shop empty-handed. One of the shop assistants ('W') gave a description of the man to the police. She later claimed that she had seen the man again locally three times in the following two weeks. After the third occasion she contacted the police and explained that she had been too frightened to report the sightings earlier but had been persuaded to do so the third time by her employer's security officer. The police drove W around the area in an unmarked police car and she identified C as the gunman. C was arrested for attempted robbery and possession of a firearm and remanded in custody. In a subsequent identification parade W picked C out again but the other shop assistant did not. C was prosecuted and acquitted of the offences by a jury. C brought a civil claim for damages alleging that W had not gone to the police with a description but that the police had suggested to her that he was the gunman and persuaded her to point him out. C accepted that there was no direct evidence to support his claim but averred that it could be inferred from the primary facts that W had been persuaded by the police to point out C as the gunman. The facts on which C relied to draw the inference were: (i) differences in the descriptions given by W to the police at different times; (ii) differences between the description given and C's actual appearance; (iii) W's delay in telling the police about the sightings after the attempted robbery; and (iv) a comment allegedly made to C by a police officer in the car that "we know it's you". The judge struck out the claim on the grounds that C had no real prospect of succeeding on his claim under r.3.4(2) Civil Procedure Rules 1998 SI 1998/3132 and CPR r.24.2. It was accepted by the defendant that the striking out under CPR r.3.4(2) was incorrect and could not stand as only the particulars of claim could have been struck out under that rule. C appealed from the decision on the grounds that it was wrong for the judge to make an order preventing him from exercising his constitutional right to have his allegation heard by a jury.HELD: (1) Even in claims for malicious prosecution and false imprisonment it was for the trial judge to rule as a matter of law whether the evidence was such as to leave it open to the jury to draw such inferences as had to be drawn for a claim to succeed (per Dallison v Caffery (1965) 1 QB 348). (2) The primary facts alleged by C were not capable in law of entitling the jury at the trial of the action to infer that W had been persuaded by one or more police officers to identify C as the gunman. There were no differences between the descriptions that W gave to the police: she just referred on each occasion to different features about the man. W had given an explanation for her delay in reporting the sightings to the police. The comment by the police officer in the car, if found to be true, showed only that the police officer thought they had the right man, not that they had put W up to identifying him. C had no ammunition that could have been deployed to challenge the evidence of the police officers. (3) In those circumstances there was no prospect of the claims for malicious prosecution, false imprisonment or misfeasance in a public place succeeding at trial.Appeal dismissed.

[2003] EWHC 412 (QB)

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