The Privy Council’s recent consideration of the tort of malicious prosecution is of some interest to criminal lawyers insofar as it considers the proper appellate approach to the different issues of malice and the sufficiency of grounds for prosecution: Attorney-General of Trinidad and Tobago v Harridath Maharaj [2024] UKPC 1 (25 January 2024).
Whether the prosecutor was motivated by malice is a question of fact, which would only have needed to be considered here if there were insufficient grounds for the bringing of the prosecution or if bringing the prosecution was unreasonable in the circumstances. Sufficiency and reasonableness are matters to be assessed by evaluative assessment. On questions of fact, an appellate court will assess the record of the evidence as best it can, and will endeavour to make up its own mind about what the facts were [64]. This is a process that in New Zealand we call evaluative judgement. [1] But on the sufficiency and reasonableness issue, which was the issue in this appeal, the appellate court will recognise that reasonable minds may differ, and the appeal is analysed by way of review [66]. Here, the grounds for prosecuting were, after analysis, found to be sufficient and the decision to prosecute was reasonable [77], so the question of malice did not need to be considered by the Board (and in any event there was nothing on the record to suggest malice) [79]. The reasonableness aspect of the decision to prosecute is summarised in the recognition that the prosecutor viewed the available evidence with proper caution and took into account evidence in favour of the defendant [77].
This appeal illustrates how different issues are analysed in different ways on appeal. [2] Here, the logical structure put the issue that required review (or what the Board calls “evaluative assessment”) before the issue - which did not need to be considered in this appeal - of fact, namely whether the prosecutor acted maliciously. As far as the tort of malicious prosecution is concerned, if there are proper grounds for a prosecution and the decision to prosecute is reasonable then the plaintiff fails. If there had not been proper grounds to prosecute, or if the decision to prosecute had been unreasonable, the issue would have been whether the prosecutor had acted maliciously.
Often, the logical structure will be the other way around: facts before discretion, as where a factual threshold has to be satisfied before a discretion is exercised.
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[1] I use the spelling judgement because that’s a way to distinguish between the process and the result. The reasonableness of the decision to prosecute is subject to appellate review. This is clear at [66]. Whether the decision to prosecute was supported by reasonable and probable cause is an issue that requires what the Board calls assessment, and this is different from the exercise of determining a fact. I call the former a discretion because it is analysed on appeal by way of review, and the latter an evaluative judgement because on appeal the analysis is of the sort described at [64]. "Review" and "evaluative judgement" are both terms currently applicable to the differing analyses in New Zealand case law. Usually a prosecutor's discretion is confined within narrow limits, but for some offences an alternative to prosecution, such as diversion, may require consideration and the discretion is more obvious.
[2] No one claims that it is always easy to distinguish between appeals against determinations of fact (often classified as general appeals) and appeals against exercises of discretion: Kacem v Bashir [2010] NZSC 112 at [32]. But there is nothing that is in this context discretionary about fact finding: deciding what evidence to accept is a matter of judgement.
