Ma­li­cious pros­e­cu­tion is the ma­li­cious in­sti­tu­tion of crim­i­nal pro­ceed­ings against a per­son with­out rea­son­able and prob­a­ble cause, which is de­ter­mined in that per­son's favour, and re­sults in dam­age to him or her.

The re­quire­ments to prove ma­li­cious pros­e­cu­tion are:

• In­sti­tu­tion of a crim­i­nal charge.

The claimant must show that the de­fen­dant brought the charge or was ac­tive­ly in­volved in set­ting the law in mo­tion against him. This in­cludes know­ing­ly giv­ing false in­for­ma­tion to a mag­is­trate or po­lice that caused them to is­sue a sum­mons or war­rant of ar­rest for the claimant or in­flu­ences the po­lice to help in pros­e­cut­ing an in­no­cent per­son.

• The pros­e­cu­tion is end­ed in the claimant's favour.

The claimant must show that the crim­i­nal case end­ed in his favour. This in­cludes where the claimant was ac­quit­ted of the charge but con­vict­ed of a less­er of­fence, ac­quit­ted on a tech­ni­cal­i­ty, the pros­e­cu­tion was dis­con­tin­ued or with­drawn or stopped by the state, or the con­vic­tion was quashed on ap­peal. The orig­i­nal case need not have gone to tri­al-it is enough that the per­son was forced to an­swer to a com­plaint in court.

• No rea­son­able and prob­a­ble cause.

The claimant must prove that the per­son who be­gan or con­tin­ued the orig­i­nal case did not have rea­son­able and prob­a­ble cause to do so, that is, that the de­fen­dant did not hon­est­ly or have any rea­son­able rea­son to be­lieve that the claimant was guilty. The fact that a claimant was com­mit­ted to stand tri­al or was con­vict­ed be­fore ap­peal does not nec­es­sar­i­ly mean that there was rea­son­able or prob­a­ble cause.

• Mal­ice.

The claimant must al­so prove that the de­fen­dant brought or con­tin­ued the orig­i­nal pro­ceed­ings with an im­prop­er pur­pose. The claimant need on­ly show the de­fen­dant was mo­ti­vat­ed by some­thing oth­er than the pur­pose of bring­ing the claimant to jus­tice. Im­prop­er pur­pose can be in­ferred from facts and cir­cum­stances or the lack of prob­a­ble cause or that there was no hon­est be­lief in the guilt of the ac­cused.

• Dam­age.

The claimant must in all cas­es show that the pros­e­cu­tion brought against him has caused dam­age to his rep­u­ta­tion, per­son or prop­er­ty. For dam­age to rep­u­ta­tion, all the claimant has to show is that the charge against him was defam­a­to­ry such as theft, which would im­ply dis­hon­esty.

Dam­age to per­son can be proven where the claimant is im­pris­oned or oth­er­wise cor­po­ral­ly pun­ished or put in dan­ger of such pun­ish­ment. Re­gard­ing dam­age to prop­er­ty, the costs that the claimant in­curred in de­fend­ing the charge would be enough to sat­is­fy this head.

This col­umn is not le­gal ad­vice. If you have a le­gal prob­lem, you should con­sult a le­gal ad­vis­er.