Malicious prosecution

• Liability for malicious prosecution seeks to

balance two competing principles- the
freedom of action that everyone should have
to set the law in motion and to bring criminals
to justice on the one hand, and the need to
protect individuals from being harassed by
unjustifiable litigation.
 Kinds of damage caused by
prosecution
• Mention at least three kinds of damage that
may occur as a result of prosecution?
1) Reputational damage.
2) Damage to the person.
3) Damage to property.
4) Infringement of a person’s right to privacy of
the home.
• Anyone who sets the criminal law in motion is
liable for malicious prosecution if all the
elements of the tort are met. This is not
restricted to police officers.
• The tort is limited to criminal prosecution
under the English law and does not extend to
civil proceedings where it is generally believed
that the injured party would be compensated
by costs.
• Complications of suing a defendant who gives
information that leads to the prosecution of the
claimant:
– Modern conditions give police officers the discretion to
carry out the arrest and thus use the information supplied
by the defendant. This deprives the claimant of any claim
against the Defendant for false imprisonment.
– The information given by the Defendant is likely to be
defamatory, but any evidence given by him in court will be
subject to absolute privilege and, though the limits are not
easy to draw, this immunity is now extended to preliminary
statements or the preparation of reports outside court
which are part of the process of investigation. Qualified
privilege would also apply to such cases.
 Essentials of the Tort
• Prosecution
• Favourable termination of the prosecution
• Lack of reasonable and probable cause
• Malice
• Damage or loss suffered as a result of
prosecution
Each of these elements must be proven by the
claimant.
 Prosecution
• Prosecution: A person who brings a private
prosecution is obviously a prosecutor for this
purpose.
• One who swears as a prosecutor.
• It is not necessary that a D is a prosecutor in
the technical sense: what matters is that he
should in substance be the person responsible
for the prosecution being brought about.
 Prosecution
• The person to be sued is the person who was
‘actively instrumental in putting the law in
force’ (Danby v Beardsley (1840) 43 LT 603)
• This could be the person who filed the
complaint, signed relevant documents and
was key witness in the matter. Roy v Prior
(1971) AC 470
 Martin v Watson [1996] AC 74
• what is required here is for the defendant to have
been actively instrumental in the instigation of
proceedings, and that merely giving information to a
police officer, who then goes on to make an
independent judgement on the matter, will not be
sufficient to form the basis of an action for malicious
prosecution.
• In this case, the defendant was a person with a long
history of ill feeling against the claimant, and she had
gone out of her way to deceive the police, intending
them to take action and to prosecute the claimant.
 Favourable termination of the
prosecution
• Favorable termination of prosecution is
defined broadly. The prosecution must end in
favor of the claimant-verdict of acquittal or
discontinuance of the prosecution by leave of
court, but not nolle prosequi. No action could
lie if the claimant had been convicted even if
his conviction is reversed at appeal. Renolds v.
Kennedy 95 E.R.591 .
Lack of reasonable and probable cause
• In Herniman v. Smith [1937] UKHL J1222-1
the House of Lords adopted a definition of reasonable
and probable cause given in the Hicks case. That is “ an
honest belief in the guilt of the accused based upon a full
conviction, founded upon reasonable grounds, of the
existence of a state of circumstances, which, assuming
them to be true, would reasonably lead any ordinary
prudent and cautious man placed in the position of the
accuser, to the conclusion that the person charged was
probably guilty of the crime imputed.”

• Hicks v Faulkner [1881] Q.B.D 167

• Glinski v. McIver (1962) AC 726
 Malice
• ‘Malice’ means motivation by some desire other than that of
bringing the accused to justice (Stevens v Midland Counties
Railway 156 E.R. 480)
• Absence of reasonable and probable cause affords some
general evidence of the presence of malice. (Anti-Corruption
Commission v Sambondu (Appeal 54 of 2013) [2017] ZMSC
136 (16 October 2017)).
• If there are mixed motives for the prosecution, the claim will
succeed if the malicious motive was dominant.
• Brown v. Hawkes (1891) 2 QB 718
 Damage/loss
• In Saville v. Roberts (1698) Mod Rep 208 the
court held that a claimant ought to prove
damage in an action for malicious
prosecution. Holt CJ classified damage as
threefold:
– Damage to a person’s fame
– Damage to a person’s safety
– Damage to a person’s security of property by
reason of his expense in repelling an unjust
charge.
 ABUSE OF LEGAL PROCEDURE
• Involves:
– Malicious process: for malicious prosecution the D
must have “prosecuted”, but there may also be
liability if the D has maliciously and without
reasonable and probable cause instituted some
process short of actual prosecution, of which the
most important example is the procuring of a
warrant for the claimant’s arrest. See Roy v. Prior
(1971) AC 470
– Malicious civil proceedings: e.g. malicious
bankruptcy proceedings against a person;
malicious winding up proceedings against a
company. It has the same elements as malicious
prosecution.
– Abuse of process: the law also recognises a
related tort called abuse of process. This lies
where a legal process, not itself without
foundation, is used for an improper, collateral
purpose.