Assessing the grounds for bringing a prosecution: Attorney-General of Trinidad and Tobago v Harridath Maharaj [2024] UKPC 1

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 state of mind 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, and it only needed to be considered 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 judgement. [1] 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]. But on appeals concerning the exercise of a discretion an appellate court will recognise that reasonable minds may differ, so that the appeal is analysed by way of review [66]. Here, the grounds for prosecuting were sufficient and the decision to prosecute was reasonable, so the question of malice did not need to be considered by the Board (and in any event there was nothing in the record to suggest malice) [79].

This appeal illustrates how different issues are analysed in different ways on appeal. [2] Here, the logical structure put the issue that required evaluative judgement before the issue (which did not need to be considered in this appeal) of fact. 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 malice does not matter. Often, the logical structure will be the other way around: facts before judgement, as where a factual threshold has to be satisfied before a judgement is exercised.

_______________________________________

[1] I use the spelling judgement because that’s becoming the way we in NZ distinguish between the process and the result, but the Board’s phrase “evaluative assessment” [63] avoids this sort of refinement. Anyway, to say sufficiency and reasonableness are both treated in the same way on appeal may be inaccurate (this point did not arise in this appeal): sufficiency seems clearly to be a question of fact and a matter for evaluative judgement both at first instance and on appeal, whereas the reasonableness of a decision to prosecute may be a discretionary matter at first instance, reviewable on appeal.

[2] No one claims that it is always easy to distinguish between appeals against evaluative determinations of fact (often classified as general appeals) and appeals against exercises of discretion: Kacem v Bashir [2010] NZSC 112 at [32]. There is nothing that is in this context discretionary about fact finding (deciding what evidence to accept is a matter of judgement).