False imprisonment – Felony – Wrongful detention by private prosecutor – Subsequent formal arrest on suspicion by police constables – Reasonable ground for – Nominal damages Malicious prosecution – Charge of larceny – Absence of reasonable and probable cause – lndirect motive – Evidence of malice – Depositions of witnesses – Fresh caption daily – lndictable Offences Act 1848 (11 and 12 Vict c 42), s 17, sched form M.: Meering v Grahame-White Aviation Company Ltd COURT OF APPEAL

[1918-1919] All ER Rep Ext 1490; [1918-19] All ER Rep Ext 1490

Meering v Grahame-White Aviation Company Ltd
COURT OF APPEAL
[1918-1919] All ER Rep Ext 1490; [1918-19] All ER Rep Ext 1490
HEARING-DATES: 18, 22, 23, 24, 25, 26, 28, 29 JULY 1919
29 JULY 1919
CATCHWORDS:
False imprisonment – Felony – Wrongful detention by private prosecutor – Subsequent formal arrest on suspicion by police constables – Reasonable ground for – Nominal damages Malicious prosecution – Charge of larceny – Absence of reasonable and probable cause – lndirect motive – Evidence of malice – Depositions of witnesses – Fresh caption daily – lndictable Offences Act 1848 (11 and 12 Vict c 42), s 17, sched form M.

HEADNOTE:
A private prosecutor not having the privilege that a police constable possesses of imprisoning a person on mere suspicion that a felony has been committed, false imprisonment results if the person is detained by the private prosecutor. Arrest, however, by a police constable which follows the placing of the case in his hands to do his duty is not an arrest by a private prosecutor, but is an arrest by the police constable.

The fact that a person is not actually aware that he is being imprisoned does not amount to evidence that he is not imprisoned, it being possible for a person to be imprisoned in law without his being conscious of the fact and appreciating the position in which he is placed, laying hands upon the person of the party imprisoned not being essential.

The definition of “Imprisonment” in “Termes de la Ley” is an adequate statement of what is meant by that expression.

Bird v Jones (1845, 7 QB 742) and Warner v Riddiford (1858) 4 CBNS 180, approved.

Absence of reasonable and probable cause for instituting a prosecution against a person affords evidence from which it may be inferred that there was a want of honest belief on the part of the prosecutor in the guilt of the person accused. But absence of reasonable and probable cause alone will not suffice. There must be evidence of some further indirect motive.

The depositions of witnesses taken in pursuance of s 17 of the Indictable Offences Act 1848 in the form set forth in the schedule to that Act should appear in chronological order, a record of the depositions being kept day by day with a fresh caption at the beginning of each day’s proceedings showing what witnesses have been examined on that day, and what part of their evidence has been given on that day.

Observations of Duke, LJ, as to the function of a judge at Nisi Prius.

Observations of Atkin, LJ, concerning the burden cast upon judges in trying civil actions in the High Court of Justice in making the only official record of the whole of the evidence which is adduced before them by taking a note thereof in long hand.

Order of Bray, J, varied.

Appeal from the King’s Bench Division

Application by the defendants for judgment or a new trial on appeal from the verdict and judgment at the trial before Bray, J, and a special jury sitting in Middlesex.

The facts of the case and the arguments of counsel sufficiently appear from the following judgments.

NOTES:
Referred: Tims v John Lewis & Co, [1951] 2 KB 459. Applied: Abbott v Refuge Assce Co Ltd, [1961] 3 All ER 1074.

See Halsbury’s Laws of England, 3rd ed, vol 25, p 362.

CASES-REF-TO:
Cases referred to:

Bird v Jones (1845) 7 QB 742.

Warner v Riddiford (1858) 4 CBNS 180.

COUNSEL:
Sir Edward Marshall Hall, KC, Rigby Swift, KC, and Ellis Hill for the appellants.; Holman Gregory, KC, and S H Lamb for the respondent.

Solicitors for the appellants, Groebel and Co.; Solicitors for the respondent, Bolton, Jobson, and Yate-Lee.

EA SCRATCHLEY, BARRISTER-AT-LAW

PANEL: WARRINGTON, DUKE, ATKIN, LJJ

JUDGMENTBY-1: WARRINGTON LJ:

JUDGMENT-1:
WARRINGTON LJ:

This is an appeal by the defendants from a judgment delivered by Bray, J, after trial before himself with a special jury in an action for false imprisonment and malicious prosecution. The jury found, speaking, for the moment, quite generally, in the plaintiff’s favour, both on the issue of false imprisonment and on the issues raised in the action for malicious prosecution, and awarded the plaintiff £ 250 damages in respect of false imprisonment, £ 1250 for malicious prosecution, and an additional £ 200 for costs incurred by the plaintiff’s father in defending the plaintiff against the charge of larceny which had been preferred against him, and which was the subject of the alleged malicious prosecution.

The defendants appeal both in respect of the findings of the jury against them on the issue of false imprisonment and on the findings of the jury and judgment of the learned judge on the issues raised by the action for malicious prosecution. And they originally appealed against the award of the £ 200 in respect of the father’s costs of defending the plaintiff. But that particular objection has been withdrawn. Therefore if we are in the plaintiff’s favour on the question of malicious prosecution, the damages will stand as they were found by the jury–namely, £ 1250 with the addition of £ 200 for the costs.

I propose to state generally, without going into the details of the evidence, the facts of this case, and then to take in detail the questions asked of the jury and their answers, and see whether there was evidence on which the jury could properly come to the conclusion that they did. It will then be necessary to see, having found those facts, whether the learned judge in the court below was right in finding, as he had to find, that there was an absence of reasonable and probable cause.

The plaintiff is an infant, and at the date of the occurrences in question he was between 18 and 19 years old. He was employed at the Grahame-White aviation works, the aerodrome, at Hendon. His father was a merchant, carrying on business in the City, and having a residence at Finchley, not very far from the Hendon aerodrome. The boy had had £ 100 premium paid for him by his father to the defendant company; he had obtained a pilot’s certificate; and he had also, I gather, acquired a considerable amount of experience as a mechanic in the company’s works, so much so that at the time of the occurrences in question he was designing an aeroplane of his own. Whether it was a good or a bad design is of no consequence. But he was engaged in designing an aeroplane of his own. For that purpose he,

of course, required a certain amount of materials and tools of such a nature as were possessed by the defendant company. He applied to one of the officials of the defendant company, a gentleman of the name of Liddle, as to the possibility of obtaining certain materials and tools from the defendant company, and he was told there was a difficulty about it, but that he might apply to Martin, who was the chief storekeeper of the defendant company, and it was possible that he might be able to obtain at any rate some of the things he wanted.

The plaintiff’s home was with his father at Finchley. But inasmuch as he, being a pilot and instructor in the aviation school at Hendon, sometimes found it necessary to be up quite early in the morning, be occupied a bedroom in a cottage called Rose Cottage, occupied by a man named Lamb, the cottage being just outside the ground of the aerodrome. So matters were with regard to the plaintiff.

There had been for some considerable time extensive thefts of material and other things from the defendant company, and those representing the defendant company were much exercised about the same, and were clearly very anxious to stop it. On 26 January 1918 certain verbal statements were made by two pilots in the employ of the defendant company, a man named Russell and a man named Somersfield, to one or more of the amateur police who were employed at the works, and who may be conveniently referred to as the works’ police. This was reported to the managing director, and he desired to have their statements put in writing. They were put into writing. They consist of the two statements dated 28 January which have been so frequently referred to in the course of the argument before us.

The effect of those two statements-I do not propose to read them at length-seems to me to be that a certain keg of varnish had been traced to the possession of the plaintiff, that it had been first placed in one of the hangars on the aerodrome ground; that it had been removed by the plaintiff from that hangar to another; and that it had afterwards been moved from the aerodrome ground altogether to Rose Cottage, and the persons who made the statements had heard that it had been or was about to be taken from Rose Cottage elsewhere.

With that particular incident connected with the varnish there was associated in those statements the name of the plaintiff, the name of Martin, the storekeeper, and Mr Brackenridge, who was the head of the school, as I understand, or, at any rate, a very important person in the aviation school, and who it was said knew at all events all about the original removal of the varnish to the hangar, although it was said that he had taken no notice of the incident.

The other matter which these two statements suggested was a supposed intimacy between Martin and the plaintiff. It was said that they were in association; that the plaintiff had frequently taken Martin up for flights in his aeroplane, and the suggestion obviously was that Martin and the plaintiff were much too friendly with each other.

Having received those written statements, which, by the way, are addressed to Mr Grahame-White, the managing director of the company, Mr Grahame-White, after consultation with the authorised police officers-not merely with his own works’ police, but the authorised officers of the Metropolitan Police-decided on applying to the magistrate for a search warrant. Application was made to the magistrate on an information which was sworn by Hutchins, who was secretary of the company. That information, which is dated 30 January 1918, was in these terms: “During the past three months, November, December, and January, a considerable

quantity of aeroplane material-comprising sheet steel, brass bolts and sockets, wood and fabric, also varnish and petrol-have been stolen from the Grahame-White Aviation Company’s works. From information I have received in statement form and supplied to me by the poIice”-by the police there he means his own works’ police-“I have every reason to believe, and do believe, that considerable quantities of the said stolen property have been taken to the address of one of the firm’s assistant storekeepers, Charles Lamb, Rose Cottage, Colindeep Lane, Hendon. I respectfully ask that a search warrant be issued for the purpose of searching the said house.”

At that time, so far as the facts of this case are concerned, the only thing that there was reason to believe had been taken to Rose Cottage was the keg of varnish. That was the thing as to which the defendant company had the written information. However, the magistrate granted the search warrant, and, in addition to it merely being a search warrant, it authorised also the arrest of Lamb. The search warrant was placed in the hands of two detective officers of the Metropolitan Police, Askew and Burgess, and on 5 February it was executed by them in the presence of officers of the defendant company.

The result of that search was that there was found in the bedroom occupied by the plaintiff a bundle of things called turnbuckles, about a dozen of them, and there was also found in the same bedroom a bundle of what are sometimes called wire strainers and sometimes short ends. Both of them are connected with the construction of aeroplanes. There was found in the drawer of the kitchen, with which, so far as I know, the plaintiff was not at all connected, two small coils of wire. In a chest in the stable, as to which it was not shown that the plaintiff had any connection whatever, they found some more wire, and, what is most important of all, they found an inner tube with the defendant company’s name upon it, that tube belonging to the under-carriage of an aeroplane. They found also in this chest in the stable a varnish brush and a piece of sheet brass, a small piece only, apparently part of what had been a larger piece, which was stamped with the defendant company’s identification mark, and which, no doubt, had been the property of the defendant company.

Besides these articles the police found on the premises-and I understand in that part of the premises with which the plaintiff had to do-a number of tools and material connected with the manufacture of aeroplanes, but which things the defendant company or the officers of the defendant company could not identify as theirs. They also found in the bedroom occupied by plaintiff-and this is a matter of great importance-drawings and sketches of the aeroplane which he was manufacturing.

The police having made their search arrested Lamb. They then inquired at what time it was likely that the plaintiff would be back again at the cottage. He was not at the cottage at the time, nor, so far as we can see, was he upon the aerodrome ground at the time. This was about six o’clock. They ascertained the address of his father. They were told that the plaintiff himself would most likely be back at the aerodrome at about nine o’clock. They did not make any appointment with him, but it was known-and this is of some importance-to the works’ police that the two detectives, Askew and Burgess, wished to question the plaintiff, and that they expected that he would be there about nine o’clock. Hutchins and Hickie-whose name I have not mentioned before, and who was the superintendent of the works’ police-with the two detectives then went off to the house of the plaintiff’s father. What took place there I will leave for the moment, because I wish to deal with what happened to the plaintiff.

Prudence, who was a sergeant of the works’ police, had been told it was desired to interrogate the plaintiff at the defendant company’s offices, and that he was, when he came back, to inform him of the fact, and see if he could, that he should be at the defendant company’s office for that purpose. Prudence interpreted and carried out his instructions in this way. He told two of the company’s police, a man named Dorry and a man named Liddington, to convey this information to the plaintiff. Dorry and Liddington saw the plaintiff come out of the works and go across the field towards this cottage. They say they saw him signal with an electric torch and receive an answer from the cottage. They then started off one one way and one the other. Liddington went straight across the field towards that part of the hedge against which was the curtilage of the cottage. The other man went off to the left and down a lane by a footpath which led in the same direction. But the point is that two men commissioned by a third to convey a message to the plaintiff thought it necessary to do so in this extremely elaborate way.

Dorry got to the cottage and asked for the plaintiff. He saw him and told him that his presence was desired up at the works, and the plaintiff said: “All right I will get my mackintosh and I will come along.” So they started, and the plaintiff suggested that they had better go a short cut through a place in the fence separating the aerodrome from the cottage, and there was found the other constable, Liddington. They all three went up to the defendant company’s offices together. The plaintiff was taken or invited to go to the waiting-room of the offices there to wait until he was wanted. Prudence, Dorry, and Liddington were all due to go off duty at eight o’clock in the evening. It was then past eight, and, therefore, they were at liberty to go off duty. But they were told that it was desired that they should remain on duty until the Metropolitan detectives had come back. They accordingly remained on duty, and they remained in the immediate neighbourhood of the waiting-room in which the plaintiff was.

Meanwhile Prudence had communicated by telephone with the detectives and with Hickie and Hutchins who were in their company that they had the plaintiff at the works. The detectives and Hickie therefore returned to the defendant company’s works, and one of them, in giving his evidence before the police magistrate, said that he there found the plaintiff detained. The plaintiff had, however, when he was first taken to the waiting-room, asked what he was there for, what they wanted him for, and said that if they did not tell him he should go away. They then told him that what they wanted him for was to make inquiries because there had been things stolen, and he was wanted to give evidence. On that statement be stayed. Askew and Burgess with Hickie then arrived at the defendant company’s offices after the interview that they had had with the plaintiff’s father, and, therefore, for the moment I will leave what took place subsequently, and consider what was the effect of what had already taken place with reference to the plaintiff and the question of his imprisonment.

The learned judge in the court below asked the jury this question in reference to it: “Had the plaintiff been detained in the waiting-room before the detective and Hickie arrived?” Answer: “Yes.” On behalf of the defendant company it was contended before us that there was no evidence that the plaintiff had been detained in the waiting-room before the detectives and Hickic arrived. They say that he was perfectly free to go where he liked, and that he knew he was free to go where he liked, that he could have gone away if he pIeased; he did not desire to go away, and, accordingly, that he was never under any compulsion or under anything which could

amount to an imprisonment. In my opinion there was evidence on which the jury might properly come to the conclusion that from the moment that the plaintiff had come under the influence of these two men, Dorry and Liddington, he was no longer a free man.

It was said by one of them, I think it was by Dorry, at the trial, that he was very anxious that the plaintiff should come from the cottage to the works at the earliest moment, as he did not want him to be at the cottage and find out what had taken place in the execution of the search warrant. I should be inclined to draw an inference in favour of the view which the jury have expressed from the fact that when so simple a matter as sending a message down to the plaintiff that he was wanted up there was concerned, that they should have taken the trouble to employ three people, a police sergeant and two constables, to convey that message to the plaintiff. Then, again, that the message should be conveyed by the two constables in the way in which it was conveyed; that one should go round one way and one should go another; that one should approach the cottage by the lane and footpath, and that the other should approach it by the aviation grounds. I cannot resist the conclusion that they meant to intercept the plaintiff.

Then they accompanied him together across the ground and when he was in the place the sergeant communicated with the detectives, and told them that they had got him there. Having got him there, and having got him there with a view to satisfying the desire of the detectives expressed before they left for Finchley, that they should have him there to interrogate, can anybody believe that they were not keeping him there until the arrival of these detectives?

In addition to that is the fact that the other two constables Dorry and Liddington, and Sergeant Prudence as well, though really entitled to go off duty, were kept there until the arrival of the detectives. Why were they kept there? Why did they go? What had they to do if it was not intended in some way to restrict the movements of the plaintiff-I do not mean to say at some future time to arrest him, but it was intended then to keep control over his will and over his movements.

To my mind there was ample evidence justifying the conclusion to which the jury had come, agreeing in that respect with Askew’s own opinion, that the plaintiff had been detained by the officers of the company. If that had been so, then it is admitted that that act was a wrongful imprisonment, because it was an imprisonment by a private person, and a private person has not the privilege which a constable has of imprisoning a man on mere suspicion that a felony has been committed. I think therefore that that was a correct finding of the jury, and that what they found was a false imprisonment.

Then they were asked a further question: “Were the detectives when they formally arrested the plaintiff in the waiting-room acting as agents and with the authority expressed or implied of the defendants?” They did arrest the plaintiff under circumstances which I will mention directly when I come to that part of the case, because they bear more on the question of malicious prosecution than upon the question of wrongful imprisonment. One of the detectives, Burgess, did in fact arrest the plaintiff. Were they acting as agents, and with the authority, express or implied, of the defendants? The jury answered that in the affirmative, that they were. Now there, I think, the jury had no evidence on which they could properly come to that conclusion. The evidence satisfies me, first, that Mr Grahame-White, the managing director, left the question to Mr Hutchins, the question as to what should be done with reference to the prosecution, and may be said almost to have washed his hands of it as soon as he directed the application

for the search warrant, and that Hutchins and Hickie, the works’ superintendent of police, and the other two officers of the company, were quite alive to the fact that, so far as the arrest was concerned at all events, they must throw the responsibility upon the constables of the Metropolitan Police.

I think that that evidence satisfies me that the officers of the defendant company did not give the plaintiff in charge, but that in that matter the Metropolitan Police acted on their own responsibility, and by virtue of the powers which were conferred upon them as police constables. That being so, the arrest of the plaintiff by them was not wrongful, because I think that they had at the time they arrested him sufficient reasonable ground for suspecting that a felony had been committed, and that the plaintiff had been involved in the commission of that felony. I think, therefore, that the arrest by the Metropolitan Police was not wrongful, was made on their own responsibility, and not as agents of the defendant company.

That being so, but for what Mr Gregory has said on the plaintiff’s behalf, a very difficult question would be involved, because the jury have made no distinction between the damages incurred by the false imprisonment, which only lasted something under an hour, and the subsequent formal arrest and its consequences. But Mr Gregory, on the plaintiff’s behalf, has agreed that, there being no wrongful imprisonment by the arrest on the part of the police constables, the only wrongful imprisonment being that by the officers of the company for a short time in the waiting-room, we may reduce the damages awarded by the jury to a nominal sum. That accordingly I think ought to be done. That will dispose of the question of wrongful imprisonment.

I come now to the malicious prosecution. I left off in the narrative where the detectives and Hutchins and Hickie had gone up to the house of the plaintiff’s father. They did not find the plaintiff there, but they did find the plaintiff’s father. Either they mentioned or the plaintiff’s father mentioned, when the object of their visit was explained to him-I do not know that it matters which-the fact that he had through his son bought and paid for the keg of varnish, and he said: “I have at my office the receipt which my boy procured and gave me for that and other things which had been bought and paid for by him.” He also said that the boy had bought other things from the defendant company, and he, the father, had paid for them by his own cheque in favour of the defendant company, and that at his office he had that paid cheque, showing therefore that the money had been received by the defendant company, and be said at the police-station in the morning, where he understood the plaintiff would be charged, that he would bring and produce that cheque and that receipt.

The detectives therefore knew at that time that so far as the keg of varnish was concerned there was no concealment about it. The plaintiff’s father said: “Yes, I have got it, and I bought it through my son and I paid for it,” and they knew also that with regard to certain other articles that the plaintiff’s father had provided his son with the money to pay for them, and that that money had been paid and received by the defendant company. They interrogated the plaintiff. They asked him first about the turnbuckles. They cautioned him, and the explanation he gave was: “Yes, those turnbuckles were given to me by Martin, they were only samples, and they have been in his office for some time, and he said they were no use and he gave them to me.”

Then he was asked about what are called the short ends. He said: “I made them.” They asked him where he got the wire, and he shrugged

his shoulders, and appeared not to be able at the moment to say where he got the wire. They are a trifling matter, and when they come to be examined now they appear as if they were of different gauges of wire, and therefore might have been made up of odd bits of wire. There is only about a foot of wire in each of them, not much if any more than that.

Then he was asked about the inner tube. Lamb had given two different accounts. Lamb had said in the first instance, when he was shown that, at the time that the search warrant was being executed: “Yes, Teddy White brought that from the Kingsbury Aerodrome.” But when the identification mark of the defendant company was pointed out to him he said that Teddy White had brought something else, a motor bicycle tyre he thought, and that that was brought there by the plaintiff.

When the plaintiff was asked about it he said, “I cannot account for that,” and the answer was “Well,” and nothing more; he did not account for it at the time. Upon him after his arrest was found a receipt for £ 11 14s ld, being the sum which he had paid by his father’s cheque, a receipt signed by Martin, and amongst the articles included in that receipt was some sheet brass. He was asked about the sheet brass, and he said. “That sheet brass I have been working on in the workshop.”

The police arrested him and he was taken to the station. I find I have made one mistake, but not of much importance. I think the inner tube was shown to him and he was asked a question about that at the police station and not at the defendant company’s office. It does not very much matter. The plaintiff was taken to the police station, and there he was charged with Lamb, who had been already arrested, with stealing and receiving 12 turnbuckles, 62 wire strainers, an aeroplane inner tube, a varnish brush, a quantity of steel wire and a piece of sheet brass together valued at £ 3, the property of the defendant company. They mentioned on the charge sheet the things which had been found upon his person and the things which had been found elsewhere which in this case means Rose Cottage.

Among the things found on his person was not mentioned the receipt for £ 11 14s 1d and among the things found elsewhere were not mentioned the sketches and drawings relating to the aeroplane. The police were entirely unable to give any satisfactory account of why those particular things which were of considerable importance were left out from the enumeration of the articles. The plaintiff was locked up for that night, and he was brought before the Occasional Court, as it was called, that is, before a single magistrate, the next morning at the police station, the prosecution asking for a remand and proving the case, or intending to prove the case sufficiently to justify a remand.

To the police station there came down the plaintiff’s father armed with the second of the two receipts, including the keg of varnish, the cheque for £ 11 14s 1d, the money mentioned in the first receipt, and be came accompanied by his solicitor. There was a conflict in the evidence as to whether the two documents, the second receipt and the paid cheque for £ 11 14s 1d, were produced to the detectives before or after the plaintiff had been brought before the magistrate. The jury have in that respect accepted the evidence given on behalf of the plaintiff, and I see no reason for differing from their finding in that respect. The paid cheque and the receipt were therefore on that footing shown to the detectives before the opening of the case before the magistrate.

What did they tell them? They told them that there had been that which appeared on the face of it to be, so far as young Meering was concerned,

a perfectly bona fide case of purchase and sale. It is admitted that Martin had limited authority to sell for cash the goods of the defendant company. Therefore so far as the plaintiff was concerned unless it was shown, as it was not shown, that he had knowledge of the limitation placed upon that authority, he was perfectly entitled to deal with Martin as if he was dealing with an authorised person, and there was no imputation on his honesty in purchasing the things which he bought from the defendant company and paying for them.

On the face of it the police also knew that the plaintiff’s father produced that which appeared to be a valid receipt at that moment for other articles not comprised in the original one for which it appeared he paid £ 11 16s to the company which included the keg of varnish. Not one of those documents was disclosed by the police to the magistrate on that occasion. The solicitor who appeared for the plaintiff did make some reference to them on the question of bail which was applied for, opposed on behalf of the defendant company and refused by the magistrate. It is found by the jury and I believe that is the true view, that the police did not disclose to the magistrate those pieces of evidence which appear strongly to support the plaintiff’s case that he had not stolen the goods from the defendant company but that such goods as he had of theirs had been bought and paid for by him.

The plaintiff, still a prisoner, was remanded. He was brought up the next day on 7 February. A further remand was asked for. He was then let out on bail, remanded till the 14th, the prosecution stating that they desired to make further inquiries. On the 14th some further evidence was taken. Hickie had been examined on the 6th, and in the course of his evidence on the 6th, when he was identifying the various goods sold, he had mentioned that 15lb of steel wire had been borrowed from a man named Hartnett, a foreman in the employ of the defendant company, therefore himself suggesting an explanation of the possession of the wire out of which the short ends had been made.

Further evidence was given on the 14th. A further remand was made till the 21st, and another remand to the 28th, and on the 28th a further charge was preferred against the plaintiff. That leads me to what the fresh charge was. It seems almost incredible, but the second charge was in respect of the things which were comprised in the second receipt. It came about in this way: Martin was lost sight of by the defendant company from the night of 5 February. He was then apprehended and charged with embezzling a sum of £ 4 which be had received from a man named Sage for the sale of a certain wood belonging to the defendant company. Being then charged he made a statement, first by word of mouth, and then in writing, as to the second of the two receipts which he had given to the plaintiff. I need not read the written statement through, it has been read many times. But the effect of it was that he had let the plaintiff have the things mentioned in the receipt-which I take to mean quite plainly acting on behalf of the defendant company-he had purported at all events to sell these things to the plaintiff, that the plaintiff had not paid him, that be had, on the contrary, spent the money which his father had given him to pay for them on another matter, but that to save him from blame on his father’s part he had given him this receipt on the promise that he, the plaintiff, would bring him the money at a future time, and that he had never brought it.

The statement was made by Martin, a man charged with embezzlement, and obviously with a view of averting a charge of embezzlement founded on this receipt, which he had given to the plaintiff, but the defendant

company chose to act upon it, and they charged the plaintiff with stealing the things mentioned in that receipt. They seem to have asked him no questions. They seem to have assumed against him that the statement of Martin was true, and not only that, but that it was a statement that the plaintiff had received these goods knowing them to have been stolen.

They charged him with that on 28 February. He was remanded again until 2 March, and on 2 March he was finally committed for trial. Before quarter sessions he accounted for everyone of these things with the stealing of which he was charged, and in particular with the things with which he was charged on the second occasion. He showed that he had paid for them at different times, and, in respect of 30s, that he had paid for them by certain goods which he had handed over to Martin instead of the actual cash, but he proved that he had paid for them.

With regard to the first receipt and the paid cheques, there was no question he had paid for them, and he not only proved this, but, after considerable difficulty, they had compelled the defendant company to produce requisition forms on which there had been entered some of the goods with the stealing of which the plaintiff had been charged.

On that the jury were asked a series of questions. With regard to the explanations which had been given on 5 February, they were asked: “Do you accept in substance the account given by the plaintiff of the explanations he gave on 5 February or the account given by the detectives and (or) Hickie”? They answered: “We accept in substance the account given by the plaintiff.” With regard to that there can be no criticism on the verdict of the jury. It is not a question of whether there was evidence on which they could come to that or not. They had seen the witnesses, and all they had to do was to say which in their opinion was telling the truth. They said that the plaintiff was telling the truth. They were asked: “Were they explanations such as might reasonably be true?” and they said that they could be. Then: “Were they such as should have been accepted by the detectives and Hickie for the time (1) as satisfactory; (2) as likely to be true,” and they said in their opinion they should have been accepted as satisfactory for the time and as likely to be true.

They then answered the question which I have already alluded to-namely, as the account given by the plaintiff’s father and the detectives respectively of their interview on the evening of the 5th, and they said that they accepted the account given by the plaintiff’s father, and they also found in favour of the plaintiff on the question as to whether the receipt and the cheque were produced before the proceedings were commenced before the magistrate.

For the purpose of establishing his case of malicious prosecution the plaintiff had to prove two things–material I mean to the present case. He had to prove that the prosecution had been instituted by the defendants with malice. That was entirely a question for the jury. He had to prove that the prosecution had been started and carried on without reasonable and probable cause. That was a question partly for the jury and partly for the for the learned judge, for the jury so far as there were any facts in dispute, and for the learned judge whether, when those facts were found, they constituted in law an absence of reasonable and probable cause. Now, with reference to malice. The jury are, in my opinion-I think this is now quite settled by authority-entitled to take into account circumstances on which the judge may properly arrive at the conclusion that there is in law an absence of reasonable and probable cause.

If on those facts the jury came to the conclusion that the prosecutors

did not honestly believe in the charge they might further find that the prosecutors were actuated by some indirect motive in pressing the prosecution, and were therefore actuated by malice. That seems to me is exactly what the jury have done in the present case. We have gone carefully through the evidence. The jury had the evidence put carefully before them by counsel, and they certainly had the defendant company’s evidence put before them by the learned judge in the court below as fully as is necessary in the summing up, and there has been nothing in the summing up which can be pointed to as misdirection in point of law.

On that the jury have come to the conclusion that the prosecutors did not honestly believe in the plaintiff’s guilt, and that they were actuated by an indirect motive. I am not going through any of the details of the evidence. We have had it read to us, and we have paid the best attention we could to it. The conclusion at which I have arrived is that there was ample evidence before the jury to justify them in the finding that the prosecutors did not honestly believe in the charge, and that they were actuated by an indirect motive, the indirect motive in this case probably being that of the works’ police to put a stop to the pilfering which had been going on. Whatever it was, it is not for us to say what it was. I think therefore that there was ample evidence to justify the jury in coming to that conclusion. If there was then I think that does sufficiently establish the suggestion of malice which it was incumbent upon the plaintiff to prove, and there can be no doubt, I think, that under such circumstances the learned judge in the court below was justified in coming to the conclusion that there was an absence of reasonable and probable cause.

The result is that I think that the verdict and the judgment following the verdict cannot be disturbed except as regards the false imprisonment. With reference to that the action must fail, and I suppose the costs of the action will be affected by that. I will defer what I have to say as to the costs of the appeal till my learned brethren have given their judgments on the appeal. But in my opinion, except so far as false imprisonment is concerned, the appeal fails altogether and must be dismissed.

Before I part with it I want to say a word about the way in which the depositions in the magistrate’s court at Hendon were taken and preserved. We had the greatest possible difficulty in this case in ascertaining on what day particular evidence was given, what part of a witness’s evidence was given on one day and what part was given on another. The depositions run on from beginning to end without any indication upon them, except so far as can be supplied by the parties themselves on the matter, and I must say that I am shocked to find that in such a serious matter as an indictable offence a record of the depositions is not kept day by day with a fresh caption at the beginning of each day showing what witnesses have been examined on that day, and what part of their evidence has been given on that day. With that I say no more.

I think that this appeal, except in so far as false imprisonment fails, must be dismissed.

JUDGMENTBY-2: DUKE LJ:

JUDGMENT-2:
DUKE LJ:

This appeal was launched upon a motion for judgment or alternatively for a new trial. It has been argued, at any rate during the greater part of the argument, as a motion for a new trial, and I propose to deal with it in that light.

I think that it is clear upon the matter, if the form, the circumstances, and the facts are understood, that as a motion for judgment it could not possibly succeed, at any rate with regard to the main question in the case, that of the alleged malicious prosecution. So far as the motion for new trial

was concerned, in the opening of the appeal it was founded to a very considerable extent upon a general complaint of the manner in which the case had been conducted at the trial. Complaint was founded upon specific allegations in the notice of appeal, and in particular, par 4, and perhaps to some extent par 5 of the notice of appeal. Par 4 was in these terms: “That the learned judge from the earliest stage of the trial took a strong line against the defendants, and that in consequence the defendants did not obtain a fair and proper trial.”

At the early stages of the argument upon the part of the appellants out attention was called in considerable detail, and with very great skill, to the interpositions of the learned judge in the course of the examination of witnesses, and from time to time attention was directed to observations such as of necessity must be made from the bench in the course of the conduct of the trial; and it was clear that the learned judge had asked searching questions by way of cross-examination, and that the jury had concurred in a view adverse to the defendants, which was expressed in those questions.

If paragraph 4 of the notice of appeal had not been founded upon that kind of objection it would have been sufficient to say that when the case is seen in its proper proportions it is obvious that the part the learned judge took here was well within the discretion with which a learned judge is invested for the conduct of the trial of the cause with the jury. Every question which was asked was a question which might well have been asked by counsel for one or other of the parties. Many of the questions to which strong objection was taken were questions which I think very probably would have been asked by counsel for the respondent, the plaintiff in the proceedings at the trial.

But I want to add to those observations that it appeared to me, having regard to the general scope of the criticism which was levelled at the conduct of the learned judge, that there was a mistake in supposing that the function of a judge at the time was that of an umpire or referee in some contest of sport, in which it was the duty of the learned judge to abstain from word or act which could have any effect upon the result of the trial. In my opinion that is a totally erroneous view of the function of a judge at nisi prius. The learned judge is in charge of the proceedings at the trial, and his knowledge of the law, and his experience, and his observation of the conduct of the parties, are matters which for the purpose of the proper due administration of justice it is necessary that he should use in order that the jury may have before them, when they come to exercise their function, the fullest possible material to which to apply their minds. And although, when detailed passages in the course of this trial were examined, and what appeared to be a definite view was elicited from them, it seemed that there might be a foundation for the sense of grievance under which one of the parties appeared to labour by reason of the conduct of the trial, I say deliberately, after having read, I think, the whole of the evidence-certainly the whole of the material evidence, and some of it more than twice-that in my opinion there is no good ground for the complaints which were made of the conduct of this trial.

The causes of action which were alleged were two: The first was a claim of damages for false imprisonment. In the statement of claim there was alleged a false imprisonment of the plaintiff by the officers of the Metropolitan Police, acting at the instance and under the direction or at the request of the defendants, and that was the ground of claim in respect

of false imprisonment. To my mind it is very significant that there was no other ground of claim.

So far as that matter of the alleged false imprisonment is concerned, it is necessary to consider whether the facts as they appear afford any proof of the allegation that the defendants requested or directed the officers of the Metropolitan Police to arrest the plaintiff. The police have specific duties and specific powers in the matter of arrest for the purpose of enforcement of the criminal law. In this case it was clear that the prosecution had been instituted by the defendants. It was not disputed that the defendants had left it to the police to do what they considered necessary. Nothing more than that was proved, as I think, and in that state of the case, my view of the matter is that the arrest on the part of the police which follows the placing of the case in their hands to do their duty is not an arrest by a private prosecutor, and is an arrest by the police.

So that, so far as the claim for false imprisonment which is found in the statement of claim is concerned, in my opinion the action fails. But the matter of false imprisonment does not rest there, because in the course of the trial-attention was specifically directed to the dealings of the defendants’ servants with the plaintiff before the arrest by the police, and to a direct allegation that there was a wrongful detention of the plaintiff by the defendants’ servants in the defendants’ office for something like an hour before the actual arrest occurred. The matter was discussed; attention was called to the fact that no claim appeared in the statement of claim; and the learned judge in the court below definitely treated the plaintiff’s claim as including that alleged course of action, and he did so without any definite protest on the part of the defendants. And I think that we are bound to take the statement of claim here as amended by the inclusion of a claim for false imprisonment by the servants of the defendants in the defendants’ office.

A serious question arose, and has been argued with great care, upon the question of whether there was evidence to support the finding of the jury upon the specific question which was left to them with regard to the matter, the affirmative finding of the jury that there was, the jury have called it, a “detention.” But I think that it must be taken to mean that there was a false imprisonment by the defendants at that time.

Stress was laid upon a variety of facts: Upon the manifest desire, and it may be determination of some representatives of the defendants that the plaintiff should be available when he was wanted by the Metropolitan Police. I think that there is evidence of that. Upon the fact that three men went to Rose Cottage to convey a message to him, and that it was a very remarkable mode of conveying a message. Upon the fact that the defendants’ sergeant of the works’ police told the Metropolitan Police that they had got him at the office, and upon the fact that at the office, although the door was open and he was not bound down or told to consider himself in custody, or anything of that kind, there were men who could, if they had intended and had thought fit, have prevented him from departing. Upon the further fact that one of the sergeants of the Metropolitan Police-I think it was the detective sergeant Askew-had said before the magistrates, and did not withdraw it at the trial, that when he went to the defendants’ office he found the plaintiff detained.

It is a matter of very great nicety to determine whether upon those facts there is sufficient to warrant a verdict that the person complaining was imprisoned. What constitutes imprisonment has been long ago defined. It is to be found in a work of very good authority in the application of the

common law-namely, “Termes de la Ley”-in these words: “‘Imprisonment’ is no other thing, but the restraint of a man’s liberty, whether it bee in the open field, or in the stocks, or in the cage in the streets”-referring to now obsolete methods of imprisonment-“or in a man’s owne house, as well as in the common gaole; and in all the places the party so restrained is said to be a prisoner so long as he hath not his liberty freely to goe at all times to all places whither he will without baile or main-prise or otherwise.”

Can it be said upon what is affirmatively proved here that there is evidence upon which the jury could act that the plaintiff was so restrained as that he had not his liberty freely to go whither he would? To my mind there is a conclusive fact proved in the case with regard to that matter, which is, that the plaintiff himself does not show the slightest indication of a suspicion that he was restrained of his liberty to go if he had thought fit to go.

Not only is that the case with regard to the plaintiff. He says when he was arrested, and in his statement of claim in the action he defines the imprisonment of which he complains. It becomes in this case very little more than an academic matter whether he was imprisoned or not. But cases of false imprisonment and malicious prosecution are not of uncommon occurrence, and the fact of imprisonment is a fact which very often has to be ascertained, and I can only say on my own part that in my opinion there is not in this case, taking the whole of the evidence together, any proof upon which a jury was reasonably warranted in finding that the plaintiff was imprisoned by the defendants in their office.

I know that I differ from my brothers with regard to this matter, and that affects me with honest anxiety as to whether my view is right, or, as is not unlikely, is wrong. But that is the view I have formed, and, as the matter is not an unimportant matter in the administration of some branches of the law, I am bound to express my opinion, and to state the grounds on which I have arrived at it.

What remains to be discussed in the case is the claim of damages for malicious prosecution. There are two matters, as has been so abundantly demonstrated during the many days that this matter has been under consideration. First of all, was there reasonable and probable cause? Secondly, was there malice? In my opinion there was not reasonable and probable cause. I have read the judgment in which the learned judge in the court below expressed his reasons for coming to that conclusion, and I say very respectfully that I concur entirely in the arguments and the reasons which are expressed in the judgment of the learned judge.

I look at the matter in this way. Here was a lad of 19, of known parentage, good education, good character, with no sort of past reflection upon him, an active and apparently ambitious lad, known to be building an aeroplane of his own, and who could be found at any time, and whose habits and proceedings outside of this charge seem to have been beyond any sort of exception. No charge was brought against him with regard to his general conduct. He was living with his father and he was doing his duty at a very trying time in our affairs as a State. He was engaged in his employment and was working late and early, and rather distinguishing himself, for a youth of his age, in the manner in which he was doing his duty. He was engaged in a great aeroplane works, where a premium had been paid for his qualifying himself to do a public duty. Two persons alleged that they suspected that he was concerned in stealing a keg of varnish, and made some other general suggestions as to an apparent complicity of the plaintiff and a storekeeper called Martin, and a prominent official of the

defendants, Mr Brakenridge, in the pilfering and making away of stores of the defendants.

In that state of the case a search warrant was got, and the cottage where the plaintiff lodged-because apparently he lived at home with his father, but he lodged in the cottage-was searched; and then a great variety of stuff was found there which is useful stuff for a man who is constructing something mechanical, especially in the way of an aeroplane. Among that stuff were four articles upon which stress is particularly laid, and 12-odd turnbuckles, 62 strainers, short ends, as they are called, pieces of wire of various gauges which have been wrought up into useful shapes, an inner tube, such as is used in some aeroplane work, and a piece of brass sheet. Those were the specific matters, and there was also a varnish brush; and those articles of the defendant’s found there he is charged with stealing. They were identified, it is said, as having come from the defendant’s premises; and people took upon themselves to swear that the articles had not been honestly come by, people who were not in charge of them, who had no specific knowledge of them at all, who would not have known of their own knowledge whether they had been dealt with on behalf of the defendants or not. But upon, as is said, the possession of those articles the plaintiff was accused-I will say first “suspected.”

With regard to the inner tube, the plaintiff was suspected without there being possession. First of all, there is no specific proof that the article was stolen, and then there is no case of possession. With regard to the turnbuckles, the only person who knows anything of them is Martin, and they are odd turnbuckles. With regard to the wire strainers they are odd pieces of wire which anybody can see, as we saw for ourselves this morning, wires of varying gauges; and with regard to the brass sheeting, it is 2lbs of brass sheeting, and the plaintiff had been lawfully in possession of 51/2lb. of the same quality of brass sheeting, brass sheeting of the same character.

But it is said that the plaintiff had got them and that there was a prima facie case. The nature of the case I have referred to. What was there at that time, which warranted the supposition that the plaintiff had stolen the articles? It is said that he did not account for them. The jury thought that he did; and Sergeant Burgess said in his evidence at the trial, that upon being charged, the plaintiff answered that he had bought the stuff-speaking generally of everything that was in question.

It is quite true that if a stranger had been found in possession of those miscellaneous articles, there might have been a case of theft against him. The defendants knew a great deal more about the plaintiff than they would have known about any stranger. The fact was that he had not stolen the articles, and that there is no ground for suggesting that he had stolen them, and that the defendants themselves now say, and said at the trial, that they are satisfied that he had not stolen them. For various reasons they were satisfied about it, satisfied upon information which they have; and what was the information? What is said on the part of the plaintiff is that every part of the information was at their disposal at that time. And speaking broadly, looking at the matter as a matter of substance, in my judgment it is the case that what the defendants knew at the time when they admitted that the plaintiff could not be reasonably charged with stealing the goods, they either actually knew by their servants, or were in a position to know if they had made inquiries. And so far as I am able to form an estimate of the proceedings at the trial, the learned judge took that view, and not only took the view, but took it very emphatically, and with great resolution.

The knowledge about these facts was part of the knowledge which could be got from the plaintiff himself, and from his father. There was no real examination of the plaintiff himself; and, after all, these jurymen were human beings who very likely had sons of their own, and they had to consider what a reasonable person who was going to take an act which would blast the life of a young man would do when he was confronted with this possession of a miscellaneous collection of not particularly useful articles in the possession of a young fellow like the plaintiff.

The jury thought that they would ask him. They did ask his father, who admitted that they asked him, and that he told them that the plaintiff bought the goods. His father undoubtedly was asked. He said: “The boy is building an aeroplane, and a friend of his and myself are financing him in getting the necessary materials.” In the face of that state of the case, and bearing in mind that there were people in their works who could trace every commodity which went in and which passed out, the jury had to ask themselves whether it was reasonable for the defendants to make this charge; and the jury said, not with regard to niceties of law but as a matter of common sense and plain dealing between man and man, that it was not reasonable. They said that with regard to the first charge; they said that with regard to the second charge. And really, with regard to the second charge, the matter was somewhat striking, because as to the second charge, the keg of varnish was the substantial matter in it–five gallons of varnish. The defendants had known of that on 5 February. They had spoken to the plaintiff’s father about it. They had received such information that they did not think that they ought to prosecute at that time. Before 5 February, for several days they had been in some question about it. They made no inquiry of all the people who were capable of being questioned about it. Ultimately they made an inquiry of Martin, and what he said about it was, in substance, “I sold him the stuff, but he did not pay for it, and I gave him a receipt to prevent him getting into a scrape with his father.” That proves to have been untrue. But at the time Martin said that and appears to have decided this question whether there should be a second charge the defendants themselves were prosecuting Martin as a man who was embezzling moneys of theirs which he had received.

I agree with the view of the learned judge upon the question of reasonable and probable cause, and I agree with the finding of the jury. It appears to me that when you have a clear finding of the sort there is here in a case of this kind, that there was no reasonable and probable cause, the next question is for the jury, whether any reasonable man, actuated only by a desire to promote the interests of justice, could have prosecuted without reasonable and proper cause-without a real ground for proceeding: whether a reasonable man could have done it. And the jury came to the conclusion that a reasonable man could not, and that there was some other motive.

Matters which were objected to, especially, on the part of the learned judge, were those questions of the learned judge which suggested the kind of motive that is not personally discreditable to persons charged with a malicious prosecution-namely, the motive that being carried away by losses of property, they are impelled without resort to their own reason into a hasty decision to prosecute an alleged offender, not because it is supposed he will be found guilty, but for the protection of their property. The learned judge in question has directed attention to that matter. He directed the attention of the defendants’ managing director; and as I pointed out this morning, in the evidence he gave in chief Mr Grahame-White specified in

the most unqualified terms the losses to which they had been led, and the necessity of an exemplary prosecution as the motive-I think it was spoken of in answer to a question of counsel which was directed to ascertaining the only motive-but as the motive of this prosecution. There there was matter which was evidence to support the finding of the jury.

There was something else: This prosecution, at most of the stages of it, was in the hands of the superintendent of the defendant’s works police Superintendent Hickie. There were three serious things alleged against him which would have been fatal to him in this case, in my judgment, if he had been a private prosecutor. One was that he had failed to produce evidence tending to the acquittal of the prisoner, which was well within his knowledge. The second was an allegation that there were matters of fact upon which his evidence was not true; and the third was that in his “occurrence book” there were entries which appeared to have been made not at the time when material incidents were said by the occurrence book to have actually occurred, but at subsequent times and at one time, and those were serious matters. There were other matters of the disappearance of documents, and matters of that kind. But, with regard to Hickie, those were grave allegations, and the jury formed an opinion adversely to him upon those allegations.

I am satisfied, in that state of the case, that upon the main question-the question whether the prosecution was of such a nature, so unsupported by reasonable and probable cause, that the jury were driven to look for a reason for it-there were grounds to support their verdict. Upon the evident fact that where there was evidence of express ill-will, at any rate on the part of the superintendent, there were facts in the conduct of the superintendent to which the jury were bound to give their attention, and as to which, when they found an adverse verdict to him, they can only be regarded as facts which supported that verdict.

I am expressing no opinion about his conduct. I am regarding the matter merely from the point of view of the weighing of evidence. Now it seems to me in that state of the case the defendants fail upon the material matters, and that the verdict of malicious prosecution must stand.

To my mind, therefore, the true result would be to enter judgment for the defendants with regard to the false imprisonment and to maintain the findings and verdict and judgment upon the question of malicious prosecution.

JUDGMENTBY-3: ATKIN LJ:

JUDGMENT-3:
ATKIN LJ:

After the review that this case has received from my two brothers I myself should not have been disposed to have delivered a separate judgment if it had not been for the extreme importance of the matter, and also in deference to what I venture to call the admirable and forcible argument of Mr Rigby Swift, in which he presented the case for the appellants with so much force and such sustained good temper. I should therefore like to say something in reference to the points which do arise in the case.

I think that we are obliged to take it that the issue as to false imprisonment raised on the pleadings was extended by the assent of both parties to an allegation that the plaintiff had in fact been falsely imprisoned at the works of the defendants before he was formally arrested by the detective sergeant. In respect of that it is said that that, after all, cannot be true because the plaintiff himself never supposed that he was imprisoned at the time. He used language which indicated that he was intending to go away if the persons who were proposing to see him and to take his evidence did not come soon.

Therefore it is said that inasmuch as the plaintiff did not know that he was being imprisoned it is not possible that there could be evidence that he was imprisoned. I think that the case is important when that contention is to be dealt with, because it seems to me upon a review of the possibilities of what is meant by imprisonment, that it is perfectly possible for a person to be imprisoned in law without his knowing the fact and appreciating that he is imprisoned.

I do not think that it is necessary at this stage of the case and with the time at our disposal to go through the authorities dealing with the question of imprisonment. I am disposed to think that the definition of “imprisonment” read by my brother Duke from “Termes de la Ley” is an adequate and sufficient statement of what is meant by that expression. I think that one might add to that a reference to the case of Bird v Jones (1845. 7 QB 742), where Coleridge, J, indicated that to the definition of imprisonment and restraint of liberty, there has got to be added restraint within a particular space. A further discussion of the question of imprisonment and whether there can be imprisonment without in fact laying hands upon the person of the party imprisoned, is to be found in the case of Warner v Riddiford (1858, 4 CBNS 180, at p 204), in a discussion by a very learned judge Wills, J.

It appears to me that a person could be imprisoned without his knowing it. I think a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious, and while he is a lunatic. Those are cases where it seems to me that the person might properly complain if he were imprisoned, though the imprisonment began and ceased while he was in that state. Of course, the damages might be diminished and would be affected by the question whether he was conscious of it or not.

So a man might in fact, to my mind, be imprisoned by having the key of a door turned against him so that he is imprisoned in a room in fact although be does not know that the key has been turned. It may be that he is being detained in that room by persons who are anxious to make him believe that he is not in fact being imprisoned, and at the same time his captors outside that room may be boasting to persons that he is imprisoned, and it seems to me that if we were to take this case as an instance supposing it could be proved that Prudence had said while the plaintiff was waiting: “I have got him detained there waiting for the detective to come in and take him to prison”-it appears to me that that would be evidence of imprisonment. It is quite unnecessary to go on to show that in fact the man knew that he was imprisoned.

If a man can be imprisoned by having the key turned upon him without his knowledge, so he can be imprisoned if, instead of a lock and key or bolts and bars, he is prevented from, in fact, exercising his liberty by guards and warders or policemen. They serve the same purpose. Therefore it appears to me to be a question of fact. It is true that in all cases of imprisonment so far as the law of civil liability is concerned that “stone walls do not a prison make,” in the sense that they are not the only form of imprisonment, but any restraint within defined bounds which is a restraint in fact may be an imprisonment.

Under those circumstances, it appears to me that the sole issue in this case is whether there is evidence upon which the jury could find, quite apart from the plaintiff’s knowledge of what the real fact was-that he was in fact imprisoned in the sense which I have mentioned, so that his liberty was in fact restrained; so that he was substantially in the same position

as if the key had been turned in the door of the waiting-room where he was in fact waiting.

I think that there is evidence. We have to consider the whole of the facts, because we have to remember that, after all, this was a young man who was under suspicion at that time of stealing, and in respect of whom it would appear that the defendants had been taking some steps to ascertain what the true facts were for at least a week if not more. A search warrant had been executed and his room had been searched, and there can be no question, I think, but that at the time the police-both the works’ police represented by Hickie and the detective police-were suspicious of the plaintiff, and having this suspicion they had determined to see him and to interrogate him when they found him at nine o’clock. But we know that there were communications between the police who made the search and the police at the works. What those communications are we are not told, but we know that Prudence as the result of these communications was aware that the police desired to interrogate the plaintiff; and Prudence had formed the opinion, and I think it was for the jury to infer from that communication that the police were desirous that the plaintiff should not reach the cottage and become acquainted with what was taking place in the way of search before they had interrogated him.

The evidence is that Prudence saw the plaintiff go to the cottage at an earlier time than the time when the police would be able to interrogate him. It is quite plain. He says that he made up his mind that it was undesirable that he should be at the cottage, and therefore he sent a message to bring him up to the works-I am using a neutral term-and I think that it is not insignificant, that instead of sending an ordinary messenger, he and two constables followed the plaintiff to the works, and that the two constables were made the bearers of this message, and that in fact the two constables did-I think I am using a neutral term when I say-escort him back to the works.

Then he was shown into the waiting-room, and he was kept there. By “kept” I do not mean to prejudge the question of whether he was kept there against his will. He was, however, in fact induced to remain there by a representation which was untrue, but which from the point of view of the police was quite harmless, on the footing that they were dealing with a person who was at that time a suspect.

In addition to that, the plaintiff being in that room, he was kept there an hour. While he was there a message was sent: “We have got him at the office,” and while he was there one constable at least, if not two, was kept on duty beyond his time for about an hour, and that constable was stationed just outside the main door that opened into the hall where the plaintiff was. The position was that it was unknown to the plaintiff in fact. As I gather during substantially the whole of this time the plaintiff was in the waiting-room which opened out into the hall with the constable standing at the front door and Sergeant Prudence standing in the hall outside the waiting-room, and that is the position where he was found by the detective-sergeant when he came to interrogate him. The detective-sergeant, an experienced policeman, using phrases with which he is familiar, and describing the position at the time, described him as being detained there. That is a phrase which I agree is an ambiguous phrase in ordinary parlance. But that phrase, when used by a policeman in reference to a suspect, whom he in fact arrested within a very few minutes, not very long after the time he got there, is a very extraordinarily significant one to my mind.

At any rate, it appears to me that there are no doubt two inferences that the jury might draw from these circumstances-they might come to the conclusion from all those circumstances that all that happened was that Prudence would have restrained the liberty of the plaintiff if the plaintiff had sought to exercise his liberty by proceeding to the cottage; but they might, to my mind, infer also that Prudence had made up his mind from the time that the plaintiff was in the waiting-room that he should not exercise his liberty, and that he placed the policeman there for that purpose.

Under all the circumstances of the case, it appears to me that it was open to the jury to find that the facts which I have mentioned point more strongly and with greater probability to the latter view than to the former view. And I think therefore that there was evidence upon which they could find that the plaintiff was imprisoned during the time referred to an hour or so, when he was kept in the waiting-room. But the main imprisonment that was complained of in the pleadings, and that which no doubt was that which gave rise to the substantial complaint, was the imprisonment which took the form of arrest by the detective officer, the plaintiff’s removal-conveyance the police called it-to the railway station, and locking him up in a cell on a February night and bringing him before the justices the next morning. I think that can only be brought home to the defendants by establishing that the police acted under their direction and with their authority, which comes to the same thing.

I am impressed by the fact that Hickie made representations to the plaintiff which indicated that he, Hickie, had control of the position, and that the plaintiff might go free if he made a satisfactorv explanation. But at the same time it is quite plain that the police had authority to act upon their own initiative. They were police constables informed as to the allegation that a felony was suspected. They had found property which they had been told was stolen property upon the premises, and some of it in the possession of the plaintiff. And I think that upon that there was ground upon which they could have acted on their own discretion, and have arrested the plaintiff.

The evidence seems to me on this part of the case to point with equal probability to either of the two alternatives. When it points with equal probability to either of the two alternatives, then it cannot be said that there is evidence upon which the jury can find proof of either of the alternatives. Under those circumstances it appears to me that there was not sufficient evidence upon which the jury could find the defendants responsible in respect of the main charge of imprisonment.

All that it is necessary to say further in addition to that is this: It would seem to follow as a matter of course that the damages which the jury gave upon the footing that the defendants were responsible for the whole of the imprisonment, including the actual locking up in a cell, and so on, could not stand as damages which were appropriate, and there would have had to have been a new trial to assess the damages. But Mr Holman Gregory, on behalf of the plaintiff, does not desire that, and therefore the result-and I think the proper result-would be that the damages in respect of the charge of false imprisonment must be reduced to a nominal amount, which would be properly represented by 1s.

In respect of the malicious prosecution, two matters arise: Was there evidence of the absence of reasonable and probable cause? Is there evidence of malice? I do not propose to review the evidence, which has been gone into fully by my brothers and with complete satisfaction to my own mind, but in my opinion there was abundant evidence of the absence of reasonable

and probable cause in this case. I think that the fact that the plaintiff was an ex-pupil of the establishment and the fact of his youth, and the fact of his good character, seem to have been ignored altogether. What seems to me to have been an important thing in the case is that it was proved and known to the defendants that the plaintiff was in the ordinary course a customer of theirs, and that he had goods sold to him for which he had paid. That, to my mind, was one of the illuminating facts which ought to have influenced the conduct of the defendants in every step that they took.

It is a most unfortunate matter, to my mind, that this case was left by the principal people connected with the defendants to subordinates. I can quite understand that in war time there was serious pressure upon most of the responsible people. But, after all, it must be some very serious contract that can outweigh the importance to the company of the life and liberty of a boy of 18 who was an employee of the defendants. I think that all business might have been set aside so far as was necessary to enable the managing director to give his own mind and his own attention to this subject, and to the inquiries that were made.

The next question is that as to malice. The way in which I look at that is this. The jury have found that here there was no honest belief on the part of the defendants in the truth of this charge, and, if there is evidence to support that, I think that there is an end of the case so far as malice is concerned, and to my mind there was evidence upon which that question could be left to the jury upon which the jury could so find. It is to be remembered that the person to whom the defendants eventually delegated this prosecution was Hickie, and under those circumstances they must put up with the consequences of the finding as to Hickie’s belief.

The grounds have been stated by my brother Duke very forcibly as to the reasons upon which the jury might very well infer that Hickie had no honest belief in this case. Honest belief seems to me to be the substantial thing that has always to be decided. If you find that a prosecutor has an honest belief in the truth of the case, then he has an adequate motive and a proper motive for acting, because it would be his duty, having an honest belief in the man’s guilt, with a view to furthering the ends of justice, to prosecute. But absence of good ground for bringing a prosecution affords evidence from which the jury might find that there is no honest belief, and, if so, absence of good ground or reasonable and probable cause is evidence from which the jury may infer malice.

If, on the other hand, the absence of reasonable and probable cause does not satisfy the jury that there is a want of honest belief, and if, notwithstanding the absence of reasonable and probable cause, they find that there is an honest belief, then it is very difficult indeed to establish malice. At any rate, the absence of reasonable and probable cause alone will not be sufficient, and therefore it would appear there must be express evidence of some further indirect motive actuating the prosecutor.

In the present case the jury have found an absence of honest belief, and under those circumstances I think, there being evidence to support it, the verdict and judgment must stand. I want to say one word more

about honest belief. I think that honest belief must be not merely belief by the prosecutor in the guilt of a person, but it must be a belief that the prosecutor will be able to adduce such evidence before the jury or the court as would justify the court in convicting the accused. For instance, it constantly happens-or, at any rate, it happens from time to time-that a person receives information from sources which he knows are unavailable. It is given sometimes confidentially in the sense that the witness cannot be called. It is given sometimes by witnesses who are in themselves untrustworthy of belief, or who have acquired their information in ways which for public reasons or otherwise cannot be disclosed. It seems to me that, if belief were founded solely upon evidence such as that, it could not be said in any way to justify the bringing of a prosecution. A man is not entitled to bring a prosecution, to my mind, unless he believes not merely that the person is guilty, but that he at any rate believes that there is a reasonable prospect of the prisoner being convicted.

That concludes, I think, what I have to say in respect of this matter except as to the summing up, and in respect of the summing up I would say this. As far as I know, no complaint has been made of misdirection by the learned judge in the court below on a question of law. If there is any such complaint it appears to me to be unfounded. I think that the learned judge has stated the law and the onus of proof pretty accurately in every respect. The complaints that are made are in respect of his dealing with the evidence, and in respect of one particular matter where it is suggested that he has in reading from his note not given the complete statement of the evidence given by Mr Grahame-White, where he says be prosecuted because of previous thefts and because he thought it was his duty to stop thefts.

The learned judge has omitted to mention, in stating the matter to the jury, that Mr Grahame-White qualified that shortly afterwards by saying that he himself was fully convinced at this time-namely, when the search warrant was obtained-that the plaintiff was guilty. That was a qualification, no doubt. I think it is quite plain to my mind that that arose from the fact that the learned judge was reading his note, and in a case of this kind a judge may really be excused if, in referring to a note taken in a long case, and taken perhaps 10 days or so before the actual summing up, he makes a mistake. I have said before, and members of this court have said before, and other learned judges have said before, that it is an intolerable burden that is cast upon judges in trying civil cases-especially in trying complicated and long cases of the present kind-they have to spend their time in making the only official record of the evidence. I said before in the course of the argument, and I say it again, that I believe we are almost the only civilised community in the world where in civil cases in the High Court evidence is taken upon our own system, the evidence being heard fully in court in examination and cross-examination, and there is no official shorthand record of the evidence that is taken. In a case of this kind the learned judge has got to appreciate the evidence, not merely the information that is in the possession of the prosecutor, but the evidence given on the depositions, the evidence given at the trial on the indictment, and the evidence which is being given before him, he has to bear in mind the relation of all those facts and the contentions of the parties on the manifold issues of false imprisonment, absence of reasonable and probable cause and malice. He has himself in addition to control the whole course of the trial, and at some stage or other to make up his mind as to whether there is reasonable and probable cause. At the same time his whole time

by our procedure is employed in writing down in longhand the whole of the evidence which is given by the witnesses before him.

It has always been a marvel to me that justice is done at all under those circumstances in complicated cases. No other tribunal does it. If Parliament appoints a committee or otherwise to take evidence, there is no question about a shorthand note. In most of the other divisions of this court a shorthand note is taken, and I think that it is high time that similar conveniences-which are not merely conveniences, but measures which to my mind are often necessary if justice is to be done-should be adopted.

That concludes the matter except with reference to one other thing which is a matter of criticism upon which I think something ought to be said, and that is about the depositions. The duty of justices and justices’ clerks in taking depositions has been determined by statute, and their duty is laid down in s 17 of the Indictable Offences Act 1848 (11 & 12 Vict c 42). It is thereby provided that the examination of a person charged upon an indictment shall be taken in the form set out in the schedule to that Act. The form of the deposition provides that the deposition of each witness shall have the caption which shows that it is taken “this day.” The form was this: “The examination of C D of taken on oath this day of in the year of before the undersigned, one of Her Majesty’s justices of the peace for the said county, in the presence and hearing of A B who is charged this day before me that he the said A B,” did so and so.

The statutory provision is as clear as it can be, and it is really essential for the purpose of fully appreciating in a long case what the evidence actually is that those statutory provisions should be strictly adhered to. To my mind there should be a proper caption for each day’s proceedings, and the depositions should appear in chronological order, so that you could then determine how and when the evidence was given. If a witness was recalled be should appear in his right place, and you are then able to appreciate that be has been recalled, and what evidence has been given for him to be recalled, and it can be explained how and why he is recalled.

All that is extremely important; and also it is likewise extremely important in my view that the caption should be properly indorsed. As a matter of fact at the present moment there is a tendency on the part of magistrates’ clerks to pay no attention to the caption at all until the person has been committted, though the depositions purport to show the examination of witnesses taken upon “this day,” and the person this day is charged before the justice with so and so. They in fact fill up the caption merely with the offence upon which they are proposing to commit the prisoner. The charges that are made before them in the course of the hearing disappear altogether constantly from the caption, and a better test could not be provided than this caption, for the whole of these depositions states the whole evidence as having been taken upon 2 March in the presence of Martin and Meering, when we know that a great deal of it was taken upon other days, some upon the 6th and some upon the 14th, before Martin was ever actually before the court at all.

It is, I repeat, a matter of extreme importance in these days, all the more important because the protection which is given to accused persons by the Grand Jury has entirely disappeared, and the only authority for preferring an indictment against an accused person under ordinary circumstances is the actual commitment by the magistrates. I think that in the present case there can be no doubt that the court below and we ourselves, and counsel on both sides, have been extremely embarrassed by

the highly irregular way in which these particular depositions have been prepared.

JUDGMENTBY-4: WARRINGTON LJ:

JUDGMENT-4:
WARRINGTON LJ:

The order that we propose to make is this judgment to be varied by directing that judgment be entered for the plaintiff for 1s damages for false imprisonment by the defendants’ servants. Judgment for the defendants on the false imprisonment alleged in the statement of claim. Total amount of damages to be reduced to £ 1450 1s The defendants to have the costs of the issue as to the false imprisonment alleged in the statement of claim. That would be in the court below. Then with regard to the costs of the appeal, the appellants to pay to the respondent two-thirds of the costs of the appeal.

DISPOSITION:
Order varied.