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Malicious Prosecution

Malicious prosecution involves the filing of a civil or criminal case without probable cause and for purposes other than justice, which causes damages to the defendant. To prove malicious prosecution, the plaintiff must show that the original case concluded in their favor, such as through dismissal, acquittal, or a decision in their favor. The court must balance protecting those who assist in justice and protecting individuals from unjust attacks. Elements the plaintiff must prove include that the original filer lacked probable cause and acted with malice. Probable cause depends on a reasonable belief in guilt based on reliable information from trustworthy sources.

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198 views2 pages

Malicious Prosecution

Malicious prosecution involves the filing of a civil or criminal case without probable cause and for purposes other than justice, which causes damages to the defendant. To prove malicious prosecution, the plaintiff must show that the original case concluded in their favor, such as through dismissal, acquittal, or a decision in their favor. The court must balance protecting those who assist in justice and protecting individuals from unjust attacks. Elements the plaintiff must prove include that the original filer lacked probable cause and acted with malice. Probable cause depends on a reasonable belief in guilt based on reliable information from trustworthy sources.

Uploaded by

IbrahimMohamedSaeed
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Malicious Prosecution

It has been said that an action for malicious prosecution proceeds between two
competing principles; every man should have the freedom to bring criminals to
justice and the necessity for checking lying accusations of innocent people. If it be
true,
a) What is the courts role in such a case?

Malicious prosecution is the filing of a civil or criminal case that has no probable
cause, and is filed for some purpose other than obtaining justice and causes
damage to the defendant. In most jurisdictions an action for malicious prosecution
is governed by the common law. This means that the authority to bring the action
lies in case law from the courts, not statutes from the legislature.
To proceed with a malicious prosecution claim, the plaintiff must show that the
original case was concluded in her or his favor. Generally, if the original case was a
criminal prosecution, it must have been dismissed by the court, rejected by
the grand jury, abandoned by the prosecutor, or decided in favor of the accused at
trial or on appeal. If the original case was a civil suit, the respondent must have won
at trial or the trial court must have disposed of the case in favor of the respondent
(now the plaintiff).
During a malicious prosecution proceeding, the first thing the court has to do is to
protect the person who assists in the administration of public justice, regardless of
their real motives. The court also has to protect the reputation of the individual
against unjustified attacks and his pocket against the expense of defending himself
against unjustified criminal proceedings. This means that the court should carefully
examine the facts of the case and should award sufficient compensation for the
individual who had to go through the malicious prosectution.
The maliciously attempting to have one adjudicated a bankrupt (Farley v Danks, 4
El. & Bl. 499), or adjudged a lunatic (Lockenour v. Sides, 57 Ind. 360), maliciously
arresting another in a civil action (Stone v. Swift, 4 Pick. 389; Hayden v. Shed, 11
Mass. 500), falsely suing out an attachment against a person's property (Fortman v.
Rottier, 8 Ohio St. 548), or maliciously issuing execution for a larger sum than is due
(Churchill v. Siggers, 3 El. & BI. 938), are some examples of legal damage resulting
from the wrongful exercise of legal remedies.
The plaintiff must prove that the person who began or continued the original case
did not have probable cause to do so. Generally, this means proving that the person
did not have a reasonable belief in the plaintiff's guilt or liability. In examining this
element, a court will look at several factors, including the reliability of all sources,
the availability of information, the effort required to obtain information,
opportunities given to the accused to offer an explanation, the reputation of the
accused, and the necessity in the original case for speedy judicial action. The
concept of reasonable and probable cause, the most onerous of the elements for a
plaintiff to establish, essentially requires the court to consider two questions; one

subjective (what the prosecutor actually believed) and the other objective (the
reasonableness of that belief). The court has to determine the correct test to be
applied in assessing whether the defendant acted maliciously and in proving that
the defendants conduct was without reasonable and probable cause. The court
must confirm that each of these elements serve a different purpose and remain as
separate elements which a plaintiff must prove in order to succeed in establishing
the tort, as seen in A v New South Wales.
In Mitchell v John Heine Jordan CJ stated:
In order that one person may have reasonable and probable cause for
prosecuting another for an offence, it is necessary that the following
conditions should exist: (1) The prosecutor must believe that the accused is
probably guilty of the offence. (2) This belief must be founded upon
information in the possession of the prosecutor pointing to such guilt, not
upon mere imagination or surmise. (3) The information, whether it consists of
things observed by the prosecutor himself, or things told to him by others,
must be believed by him to be true. (4) This belief must be based on
reasonable grounds. (5) The information possessed by the prosecutor and
reasonably believed by him to be true, must be such as would justify a man
of ordinary prudence and caution in believing that the accused is probably
guilty.
The courts offer to the vindictive and malevolent an easy yet terrible engine with
which to carry out the promptings of their malice. While within their precincts, the
accused is not to be regarded as guilty until proved so.

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