West­min James

Ma­li­cious pros­e­cu­tion is the in­sti­tu­tion of crim­i­nal pro­ceed­ings by the de­fen­dant, ma­li­cious­ly and with­out rea­son­able and prob­a­ble cause, against the plain­tiff, which are de­ter­mined in favour of the plain­tiff and re­sults in dam­age to that per­son's rep­u­ta­tion, per­son or prop­er­ty.

The re­quire­ments to prove false im­pris­on­ment are:

(1) In­sti­tu­tion of a crim­i­nal charge

A per­son must show that the de­fen­dant in­sti­tut­ed pros­e­cu­tion or was ac­tive­ly in­stru­men­tal in set­ting the law in mo­tion against the plain­tiff. Set­ting the law in mo­tion does not on­ly mean the ac­tu­al con­duct of the pros­e­cu­tion, but in­cludes in­stances where a per­son placed in­for­ma­tion be­fore a mag­is­trate or po­lice that caused them to is­sue a sum­mons of war­rant of ar­rest for the plain­tiff.

It is to be not­ed that if the per­son mere­ly in­forms the au­thor­i­ties of cer­tain facts up­on which the po­lice de­cide to pros­e­cute, then the per­son would not be li­able be­cause the de­ci­sion to pros­e­cute was that of the po­lice. How­ev­er, if the per­son know­ing­ly makes a false ac­cu­sa­tion to the po­lice or mis­leads the po­lice or in­flu­ences the po­lice to help in pros­e­cut­ing an in­no­cent per­son then he is li­able.

(2)The pros­e­cu­tion is ter­mi­nat­ed in the plain­tiff's favour

The plain­tiff must show that the orig­i­nal case was con­clud­ed in his favour. A per­son who has been con­vict­ed of the of­fence that has not been over­turned can­not bring an ac­tion for false im­pris­on­ment even though they can show that were in­no­cent af­ter all and the pros­e­cu­tion was ma­li­cious and un­found­ed as this would be seen as re­open­ing the is­sue of guilt which was al­ready de­ter­mined. The orig­i­nal case need not have gone to tri­al, it is enough that the de­fen­dant or re­spon­dent was forced to an­swer to a com­plaint in court.

Pros­e­cu­tion that is de­ter­mined in a plain­tiff's favour in­cludes where the plain­tiff was ac­quit­ted of the charge but con­vict­ed of a less­er of­fence, ac­quit­ted be­cause of a tech­ni­cal­i­ty, the pros­e­cu­tion was dis­con­tin­ued or with­drawn or stopped by the State. It al­so in­cludes where the plain­tiff was con­vict­ed in a low­er court and his con­vic­tion was quashed on ap­peal on the mer­its or be­cause of some ir­reg­u­lar­i­ty of pro­ce­dure.

(3) No rea­son­able and prob­a­ble cause

The plain­tiff must prove that the per­son who be­gan or con­tin­ued the orig­i­nal case did not have rea­son­able and prob­a­ble cause to do so. Gen­er­al­ly, this means prov­ing that the per­son did not have a rea­son­able be­lief in the plain­tiff's guilt. The plain­tiff would have to show that that a rea­son­able man, hav­ing knowl­edge of facts which the de­fen­dant knew at the time he in­sti­tut­ed the pros­e­cu­tion, would not have be­lieved that the plain­tiff was prob­a­bly guilty of the crime and that the de­fen­dant did not hon­est­ly be­lieve that the plain­tiff was guilty.

A per­son would al­so be li­able if rea­son­able and prob­a­ble cause ex­ist­ed at the time of the in­sti­tu­tion of the pro­ceed­ings and lat­er the per­son re­alis­es that the pros­e­cu­tion is ground­less, the de­fen­dant will be li­able un­less he dis­clos­es the new facts to the court. If the per­son fair­ly and ful­ly lays the fact out for the po­lice or coun­sel and is ad­vised by ei­ther that pros­e­cu­tion is jus­ti­fied then that per­son would be con­sid­ered as hav­ing rea­son­able or prob­a­ble cause. The fact that a per­son was com­mit­ted to stand tri­al or was the plain­tiff was con­vict­ed which was lat­er over­turned does not nec­es­sar­i­ly mean that there was rea­son­able or prob­a­ble cause.

(4) Mal­ice

In ma­li­cious pros­e­cu­tion, the plain­tiff must prove with spe­cif­ic facts that the de­fen­dant in­sti­tut­ed or con­tin­ued the orig­i­nal pro­ceed­ing with an im­prop­er pur­pose. Mal­ice is wider than just sheer ill-will or spite. The plain­tiff needs on­ly show that the de­fen­dant was mo­ti­vat­ed by some­thing oth­er than the pur­pose of bring­ing the plain­tiff to jus­tice. The plain­tiff does not have to prove that the de­fen­dant felt per­son­al mal­ice or hos­til­i­ty to­ward the plain­tiff. Few de­fen­dants ad­mit to im­prop­er pur­pos­es, so im­prop­er pur­pose usu­al­ly must be in­ferred from facts and cir­cum­stances. If the plain­tiff can­not dis­cov­er any ap­par­ent pur­pose, im­prop­er pur­pose may be in­ferred from the lack of prob­a­ble cause or that there was no hon­est be­lief in the guilt of the ac­cused.

(5) Dam­age

The plain­tiff must in all cas­es show that the pros­e­cu­tion brought against him has caused dam­age to his rep­u­ta­tion or per­son or prop­er­ty. In terms of show­ing dam­age to rep­u­ta­tion, all the plain­tiff has to show that the charge against him was nec­es­sar­i­ly and nat­u­ral­ly defam­a­to­ry such as theft which would im­ply dis­hon­esty. Dam­age to per­son can be proven where the plain­tiff is im­pris­oned or oth­er­wise cor­po­ral­ly pun­ished or is put him in jeop­ardy of such pun­ish­ment. As re­gards to prop­er­ty, the costs that the plain­tiff in­curred in de­fend­ing the charge would be enough.