Law of Tort

Malicious Prosecution

The tort of malicious prosecution is committed where the defendant maliciously and without
reasonable and probable cause initiates against the claimant a criminal prosecution which
terminates in the claimant’s favour, and which results in damage to the claimant’s reputation,
person or property.

In this tort, the law seeks to hold a balance between two opposing interest of social
policy, namely:

(a) the interest in safe guarding persons from being harassed by unjustifiable litigation;
and

(b) the interest in encouraging citizens to assist in law enforcement by bringing

offenders to justice.

The courts have always tended to give more weight to the latter interest, with the result that
‘the action for malicious prosecution is more carefully guarded than any other in the law of
tort’,1 and the number of successful actions is small.

In addition to the tort of malicious prosecution, there is, as the Privy Council has
confirmed an analogous tort of:

 maliciously procuring the issue (as in ‘giving’) and execution of a search warrant. 2

 Maliciously instituting bankruptcy or winding up proceedings. 3

1
Fleming, The Law of Torts, 6th edn, 1983, Sydney: LBC Information Services, p 597.
2
Gibbs v Rea (1998) 52 WIR 102 (PC appeal from the Cayman Islands), where it was held, by a majority, that the
police had no reasonable and probable cause to procure the issue of a search warrant to search the claimant’s
home and place of work on suspicion of drug trafficking, in the absence of any evidence of previous investigations
or of any ‘tip-off’ incriminating the claimant. Further, if the police had no sufficient grounds for suspicion, yet
satisfied the judge in issuing the warrant that that they did, then ‘to procure the warrant in that state of mind was
to employ the court process for an improper purpose’, which amounts to malice.
  In the landmark case of Crawford Adjusters v Sagicor General Insurance (Cayman) Ltd,4 a
majority of the Privy Council held, apparently contrary to establish legal principles, that
in certain circumstance an action for false imprisonment lies in for malicious prosecution
of civil proceedings.

In the commonwealth Caribbean, actions for malicious prosecution are often combined with
actions for false imprisonment. This will occur where C is first arrested on suspicion of having
committed an offence, and later charged and prosecuted for an offence. If C is acquitted of the
charge, he may sue the police officers who were responsible for the arrest and subsequent
prosecution for both false imprisonment and malicious prosecution.

Requirements for the tort

In Wills v Voisin,5 Wooding CJ listed the essentials which must be proved by the claimant in
order to establish a case of malicious prosecution:

(a) That the law was set in motion against him on a charge of criminal offence;

(b) That he was acquitted of a charge or that otherwise it was determined in his favour;

(c) That the prosecutor set the law in motion without reasonable and probable cause;

(d) That, in so setting the law in motion, the prosecutor was actuated by malice;

(e) That he suffered damage as a result.

Failure to establish any one or more of these requirements will result in the claimant losing his
action for malicious prosecution.

Each of the requirements must now be considered in turn.

3
Quartz Hill Gold Mining Co v Eyre (1883) 11 QBD 674
4
[2013] UKPC 17.
5
(1963) 6 WIR 50, 57
 (a) Institution of prosecution

The claimant must first show that the defendant instituted the prosecution against him or,
in the words of Lopes J, that the defendant was ‘actively instrumental in setting the law in
motion’ against the claimant.

The following principles as to what constitutes ‘setting the law in motion’ have been
established by the authorities:

i. It is not necessary that the defendant should have actually conducted the
prosecution. It is sufficient for liability if, for example, he laid information before
the magistrate, on the basis that the magistrate then issued a summons against
the claimant or a warrant for the claimant’s arrest.6

ii. It is not necessary that prosecution be actually commenced, it was sufficient

liability if the proceedings reach a point where it could be said that the claimant
reputation was injured (Mohammed Amin v Bannerjee).

iii. Where the defendant merely informs the police of certain facts which
incriminate the claimant, and as a result the claimant institute proceedings, the
defendant will not be regarded as having instituted proceedings, since the
decision to prosecute is not his. However, if the defendant knowingly makes a
false accusation to the police, if he misleads the police by bringing suborned
witnesses to support it, he will not escape liability (Tewari v Singh).

(b) Termination of Prosecution in the claimant’s favour

6
Campbell v The Jamaica Telephone Ltd, (1991) 28 JLR 527 (Supreme Court, Jamaica) where Clarke J, held that, ‘the
police commenced prosecution by laying information before a justice of the peace who issued the summons,
which the police served on the plaintiff. Plainly, then, the police set the law in motion by appealing to a justice of
the peace, a person who is clothe with judicial authority’
 The second requirement for a successful action in malicious prosecution is that
the prosecution ended in the claimant's favour. It is an inflexible rule that no
person who has been convicted on a criminal charge can sue the prosecutor for
malicious prosecution, even though he can prove that he was really innocent and
that the charge was malicious and unfounded, 7 for if a person were allowed to
sue for malicious prosecution after the criminal trial had ended adversely to him,
it would entail a re-opening of the issue of his guilt, and this would amount to a
challenge to the propriety of the conviction and might lead to the judgment in the
criminal court being 'blown off by a sidewind'.8
What is required is not judicial determination of his innocence but merely
absence of judicial determination of his guilt. 9 'The crux is not so much whether
he has been proved innocent as that he has not been convicted' 10 the underlying
principle being that a man is presumed to be innocent until he is proved guilty.
Thus, the requirement will be satisfied where, for instance:
(a) the claimant was convicted in a lower court but his conviction was quashed on
appeal
(b) the claimant was acquitted of the charge in question but convicted of a
lesser11 offence;
(c) the claimant was acquitted on a technicality such as a defect in the indictment,
inter alia.

(c) Absence of reasonable and probable cause

7
Basébé v Matthews (1867) LR 2 CP 684
8
Vanderbergh v Blake (1661) 145 ER 447, per Hale CJ.
9
Heuston and Buckley, Salmond and Heuston on the Law of Torts, 21st edn, 1996, London: Sweet &
Maxwell, p 398.
10
Fleming, n 1, p 581.
11
Boaler v Holder (1887) 51 JP 277
This third requirement is perhaps the hardest to satisfy. In the first place, it involves proof of a
negative (proof of absence) by the claimant, which is a notoriously difficult task. 12 Secondly,
although several attempts have been made to define 'reasonable and probable cause', the
concept still remains vague and difficult to apply in individual cases. The best known definition
is that of Hawkins J in Hicks v Faulkner:
I should define 'reasonable and probable cause' to be 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 ordinarily 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."
Other authorities have established the following principles:
(a) The overall question is a double one, both objective and subjective, namely: (i) whether
a reasonable man, having knowledge of facts which the defendant knew at the time he
instituted the prosecution, would have believed that the claimant was probably guilty of
the crime imputed (an objective test); (ii) whether the defendant did himself honestly
believe that the claimant was guilty (a subjective test).
(b) Where the defendant acts under a mistaken impression as to the true facts he 'can claim
to be judged not on the real facts but on those which he honestly, and however
erroneously, believes; if he acts honestly upon fiction, he can claim to be judged on
that'.13
(c) The defendant's belief must be based upon facts known to him at the time when he
initiated the prosecution. Thus, if incriminating facts which would have constituted
reasonable and probable cause for the prosecution only come to light later, the
defendant cannot rely on them to justify his action.14
(d) If the defendant, believing in the claimant's guilt, lays the facts fully and fairly before
counsel or the police, and is advised by either that a prosecution is justified, the
12
Abrath v North Eastern Rly (1883) 11 QBD 440. In false imprisonment, the defendant has the burden of proving
that there was reasonable cause for the detention of the claimant.
13
Glinski v McIver [1962] AC 726, at 776, per Lord Devlin.
14
Turner v Ambler (1847) 116 ER 98.
 defendant will normally be held to have had reasonable and probable cause for the
prosecution, though there is no invariable rule to this effect,.

(d) Malice
As in the tort of defamation, 'malice' in the context of this tort has a wider meaning than 'spite',
'ill-will' or a desire for vengeance, for it includes any improper purpose or any 'motive other
than that of simply instituting a prosecution for the purpose of bringing a person to justice'. 15
Is it not malice to launch a prosecution in order to satisfy the rule in Smith v Selwyn" which
requires that where a felony, such as an aggravated assault, has been committed, no civil action
may be brought by the victim until the offender has first been prosecuted. If, on the other
hand, the prosecutor had no honest belief in the guilt of the accused, this will be evidence both
of lack of reasonable and probable cause and of malice. 16 Examples of an improper purpose
amounting to malice are: where a landlord institutes criminal proceedings against his tenant as
a device to procure the latter's eviction from the premises. Where a prosecution is brought
against a man in order to punish him for having given evidence against the police on a previous
occasion.

(e) Damage
The plaintiff must in all cases show that the prosecution brought against him has caused
damage to his:
(i) fame; or
(ii) person; or

15
Stevens v Midland Counties RIY Co (1854) 156 ER 480, per Alderson B.
16
Winfield and Jolowicz, Tort, 15th edn, 1998, London: Sweet & Maxwell, p 687. a regrettably common practice for
police officers who have detained (and, often, assaulted) a person, in circumstances where the officers are well
aware that the detention is unjustified, to concoct charges against the person in order to cover up their own
wrongdoing. Commonly, an arrestee is charged with using obscene language in a public place and/or assaulting or
obstructing a constable in the execution of his duty.
 (iii) property.
In order to show damage to his fame, the claimant must satisfy the court that the
charge brought against him was 'necessarily and naturally' 17 defamatory. Thus, damage
to fame was established where the claimant was wrongfully accused of having travelled
on a bus without paying the fare,18 since the accusation implied that he was a dishonest
person and a cheat. But there will be no such damage where a landlord is prosecuted
for having failed to carry out a statutory duty to cleanse his tenants' rooms, 19 since the
charge does not necessarily carry a defamatory imputation. Nor, for the same reason,
will there be damage to fame where, for example, the claimant is prosecuted for riding
a bicycle without a rear light, or for pulling the alarm lever in a train without lawful
excuse. Damage to the person will be established where the prosecution causes the
claimant to be imprisoned or otherwise corporally punished, or where it puts him in
jeopardy of such punishment.20
As regards damage to property, the costs incurred by the claimant in defending
the charge will be sufficient to ground the action for malicious prosecution, unless the
court trying the offence awarded him an allowance equivalent to the costs he actually
incurred.21 It seems, therefore, that damage will be most easily established under this
head, and in most cases it will be unnecessary to prove damage to fame or to the
person.

Extension to malicious institution of civil proceedings

In the recent case of Crawford Adjusters v Sagicor General Insurance (Cayman) Ltd, 101 a
majority of their Lordships in the Privy Council overturned the long-established principle that

17
Wiffen v Bailey [1915] 1KB 600
18
Rayson v South London Tramways Co [1893] 2 QB 304
19
Wiffen v Bailey [1915] 1KB 600
20
Wiffen v Bailey [1915] 1KB 600
21
Berry v British Transport Commission [1961] 1QB 149
the action for malicious prosecution lies only pursuant to criminal, and not to purely civil
proceedings.

Reference

Kodilinye, G. (2015). Commonwealth Caribbean Tort Law (5th ed.). Third Avenue, New York:

Routledge.