Malicious prosecution
Introduction
Malicious prosecution is the malicious institution of unsuccessful criminal proceedings against another without reasonable or probable cause. This tort balances competing principles, namely freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons. Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge.
In an action of malicious prosecution, the plaintiff must prove:
- That he was prosecuted by the defendant.
- That the proceeding complained was terminated in favor of the present plaintiff
- That the prosecution was instituted against without any just or reasonable cause.
- That the prosecution was instituted with a malicious intention, that is, not with the mere intention of getting the law into effect, but with an intention, which was wrongful in fact.
- That he suffered damage to his reputation or to the safety of person, or to security of his property.
When does Prosecution commence?
The Prosecution is not deemed to have commenced before a person is summoned to answer a complaint. There is no commencement of the prosecution when a magistrate issues only a notice and not summons to the accused on receiving a complaint of defamation and subsequently dismisses it after hearing both the parties.
Elements of malicious prosecution
1. Institution of Legal proceedings
The word ‘prosecution’ means a proceeding in a court of law charging a person with a crime. To prosecute is to set the law in motion and the law is set in motion only by an appeal to some person clothed
2. Termination of the prosecution in the plaintiff’s favor
The plaintiff must prove that the prosecution ended in his favor. He has no right to sue before it is terminated and while it is pending. If the appeal results in his favor then he can sue for malicious prosecution. It is unnecessary for the plaintiff to prove his innocence as a separate issue.
3. Absence of reasonable and probable cause
‘Reasonable and probable cause’ is an honest belief in the guilt of the accused based on a full conviction.
i. An honest belief of the accuser in the guilt of the accused
ii. Such belief must be based on an honest conviction of the existence of circumstances which led the accuser
iii. Mentioned belief must be based upon reasonable grounds
iv. The circumstances so believed and relied on by the accuser must be such as amount to a reasonable ground for belief in the guilt of the accused.
4. Malice
Malice for the purposes of malicious prosecution means having any other motive apart from that of bringing an offender to justice. Spite and ill-will are sufficient but not necessary conditions of malice. Malice means the presence of some other and improper motive.
Anger and revenge may be proper motives if channeled into the criminal justice system. The settled rule is that malice is the gist of the action for malicious prosecution and must be proved by the plaintiff in the first instance.
It is for the plaintiff to prove that there was an existence of malice i.e. the Burden of Proof lies upon the plaintiff.
Evidence of Malice
Malice may be proved by previously stained relations, unreasonable or improper conduct like advertising of the charge or getting up false evidence. The mere fact that criminal prosecution resulted in acquittal or discharge of the accused will not establish that the defendant had acted with malice.
5. Damages
It has to be proved that the plaintiff has suffered damages as a result of the prosecution complaint
The damage must also be the reasonable and probable results of malicious prosecution and not too remote. In assessing damage, the court to some extent would have to consider:
- 1) The nature of the offence the plaintiff was charged of.
- 2) The inconvenience to which the plaintiff was charged to.
- 3) Monetary loss.
- 4) The status and prosecution of the person prosecuted
Malicious Civil Proceeding
The civil action which is false will be dismissed at the hearing. The defendant’s reputation will be cleared against all imputations made against him and he will be awarded costs against the opponent. The law does not award damage for mental anxiety, or extra costs incurred beyond those imposed on unsuccessful parties.
Conclusion
Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge. It is necessary to prove that damages were incurred by the plaintiff as a result of the prosecution. The burden of proof rests on him. He has to prove the existence of malice.
Malice may be proved by previously stained relations, unreasonable and improper conduct like advertising the charge or getting up false evidence.
Though mere carelessness is not the per se proof of malice, unreasonable conduct like haste, recklessness or failure to make enquiries would be some evidence. Malicious prosecution is the malicious institution of an unsuccessful criminal against another without reasonable or probable cause.
Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge. It is an effort to disturb the proper functioning of the judicial machinery.