A trial judge may not make a finding that a witness fabricated evidence unless that allegation has been squarely put to the witness in cross-examination, even where the parties have agreed not to take Browne v Dunn points. The distinction between rejecting evidence as unreliable and finding that it was deliberately fabricated is fundamental, and the latter requires both that the allegation be put to the witness and that the reasoning process satisfy the Briginshaw standard. The question whether the tort of malicious arrest can apply to an arrest effected by the defendant personally, as opposed to one procured by the defendant, was left open.
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