GLINSKI V MCIVER(Abridged)

GLINSKI V MCIVER(Abridged)


GLINSKI V MCIVER: HL 1962

REFERENCES: [1962] AC 726, [1962] 1 ALL ER 696


Coram: Lord Denning, Lord Devlin, Viscount Simonds

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.’