BLL 221 HANDOUT 5

Malicious Prosecution

What is a malicious prosecution?

A malicious prosecution is an abuse of the process of the court by
wrongfully setting the law in motion on a criminal charge.1 To be actionable
as a tort the process must have been without reasonable and probable
cause, must have been instituted or carried on maliciously and must have
terminated in the claimant's favour. The claimant must also prove damage.2
The need to balance competing principles
The concept of liability for malicious prosecution involves striking a delicate
balance between two opposing principles. On one hand, it upholds the
freedom for individuals to initiate legal proceedings and seek justice against
criminals. On the other hand, it seeks to prevent false accusations that can
harm innocent people. The burden of proof in malicious prosecution cases
is substantial, designed to ensure that honest prosecutors are not
discouraged from performing their duty to bring criminals to justice.

Malicious prosecution distinguished from false imprisonment.

I. Basis of Action:
• Malicious Prosecution: It arises when someone initiates a
criminal prosecution against another person with malice (ill
intent) and without probable cause.
• False Imprisonment: It is a form of liability in trespass and
occurs when a person directly causes another's loss of liberty
without lawful justification.
II. Legal Authority:
• Malicious Prosecution: Liability for malicious prosecution can
exist even if there is the intervention of independent legal
authority, such as a judge or magistrate, as long as the
prosecution was initiated with malice and without probable
cause.
• False Imprisonment: Liability for false imprisonment
typically requires that the defendant directly causes the
claimant's loss of liberty. If legal authority, like a judge, is

1
Mohamed Amin v Jogendra Kumar Bannerjee [1947] AC 322 at 330; Martin v Watson [1996] AC 74 at 80,
[1995] 3 All ER 559 at 562, HL, per Lord Keith; Gregory v Portsmouth City Council [2000] 1 AC 419 at 426, [2000]
1 All ER 560 at 565, HL, per Lord Steyn.
2
Savile v Roberts (1698) 1 Ld Raym 374; Gregory v Portsmouth City Council [2000] 1 AC 419 at 426, [2000] 1 All
ER 560 at 565, HL, per Lord Steyn.
BLL 221 HANDOUT 5

involved in remanding or sentencing the claimant, false

imprisonment may not apply.
III. Criminal Proceedings:
• Malicious Prosecution: Liability for malicious prosecution can
arise when a person is wrongly prosecuted for a criminal
offense due to malicious and baseless accusations.
• False Imprisonment: False imprisonment can occur in cases
of wrongful arrest, even if no formal prosecution is initiated. It
involves the unlawful restriction of a person's freedom.
IV. Responsibility for Prosecution:
• Malicious Prosecution: Liability for malicious prosecution is
tied to the initiation of the prosecution. It may apply if the
defendant is responsible for causing the prosecution, even if
they are not the official prosecutor.
• False Imprisonment: This concept focuses on the direct act
of depriving someone of their liberty, often through physical
confinement or restraint.
V. Proof of Damage:
• Malicious Prosecution: Generally, to succeed in a malicious
prosecution claim, the claimant needs to prove that they
suffered damage or harm as a result of the baseless
prosecution.
• False Imprisonment: Unlike malicious prosecution, false
imprisonment is actionable without the need to prove specific
damage. The act of wrongfully restricting someone's liberty is
sufficient for a legal claim.

Elements of the Tort

A will have committed the tort of malicious prosecution in relation to B if:
1. A prosecuted B for committing a criminal offence; and
2. the prosecution ended in B’s favour; and
3. A had no reasonable and probable cause to prosecute B for that
offence; and
4. A acted maliciously in prosecuting B for committing that offence.
Five points should be made about this tort:
1. Prosecution
To establish a claim of malicious prosecution, it is essential to demonstrate
that A initiated a prosecution against B for a criminal offense. The rule is
BLL 221 HANDOUT 5

that the defendant must have been ‘actively instrumental’ in instigating the
proceedings.3 This requirement can be met in two scenarios:
a. Private Citizen Prosecution: If A is a private individual and brings
a private prosecution against B for committing a criminal offense, this
satisfies the requirement.
b. Official Prosecution: If A is employed by an authority like the
Prosecution authorities and prosecutes B in their official capacity for
committing an offense, this also fulfils the requirement.
In both cases, what matters is that A, as the prosecutor, took legal action
against B for a criminal offense as part of the alleged malicious prosecution
claim. In cases beyond the straightforward scenarios, the House of Lords
has clarified that A can be considered to have prosecuted B for a criminal
offense if A was directly responsible for B's prosecution for that offense. For
example, if an informer provides information to the police with the intention
of persuading them to prosecute a suspect, and the circumstances of the
case leave no room for independent police judgment on whether to
prosecute, then the informer can be seen as having ‘prosecuted’ the
suspect. Thus, in the case of Martin v Watson4, the defendant harboured
animosity toward the claimant and intentionally misled the police by falsely
accusing the claimant of exposing himself to her. The House of Lords held
the defendant liable for malicious prosecution because the facts regarding
the alleged offense were known exclusively to her, leaving no room for
independent police judgment in initiating the prosecution. Consequently,
the defendant was treated as having caused the subsequent prosecution.
To be considered the "prosecutor" in such cases, a defendant must meet
certain criteria:
a. The defendant must have provided false and malicious information to
the police, indicating a willingness to be a prosecution witness, with
the clear inference that they desire and intend for the claimant to be
prosecuted.
b. The alleged offense's facts must be such that they are solely within
the defendant's knowledge, making it practically impossible for police
officers to exercise independent judgment on whether to proceed
with the prosecution.
The key element is the absence of independent judgment by the
authorities. Therefore, deliberate and false claims can only amount to
procuring a prosecution if it can be shown that the information provided

3
Danby v Beardsley (1840) 43 LT 603.
4
[1996] AC 74.
BLL 221 HANDOUT 5

effectively manipulated the authorities into taking action they would not
have otherwise undertaken.
2. The case must be resolved in the claimant’s favour
If the claimant is acquitted, or the proceedings are dropped or discontinued,
or the claimant is convicted but the conviction is quashed on appeal, there
will be a good basis for a claim for malicious prosecution.5
3. Absence of reasonable and probable cause
The concept of malicious prosecution is treated cautiously by the courts due
to concerns about discouraging the enforcement of the law against
suspected offenders and a desire to protect the interest in concluding legal
proceedings. This caution is evident in the development of the requirement
that there must be an absence of reasonable and probable cause on the
part of the prosecutor for a malicious prosecution claim to succeed. This
requirement places a challenging burden on the claimant, as they must
prove a negative—that there was no reasonable and probable cause for the
prosecution. Simply demonstrating malice on the part of the defendant is
insufficient to meet this burden. Additionally, the court typically does not
compel the defendant to provide specific details or grounds for initiating
the prosecution.
A Prosecutor will only have had reasonable and probable cause to prosecute
Defendant for an offence if, when he brought the prosecution: (i) Prosecutor
thought that Defendant had probably committed that offence;6 and (ii) it
was reasonable for Prosecutor to think this, given the evidence available to
him at the time he prosecuted Defendant.7 If (i) or (ii) are missing, there
will be no reasonable and probable cause for the prosecution. In Herniman
v Smith8 the House of Lords approved and adopted the definition of
reasonable and probable cause given by Hawkins J in Hicks v Faulkner9 as:
[A]n honest belief in the guilt of the accused based upon a full
conviction, founded upon reasonable grounds, of the existence of a

5
Basébé v Matthews (1867) LR 2 CP 684, 687 (per Byles J): ‘there is [no] doubt that the criminal proceeding
must be determined in favour of the accused before he can maintain an action for malicious prosecution. If this
were not so, almost every case would have to be tried over again upon its merits . . . It makes no difference
that the party convicted has no power of appealing.’
6
See Lindley J in Shrosbery v Osmaston (1877) 37 LT 792, 794: ‘if a man believes that another is not guilty
of a criminal charge, and prosecuted unsuccessfully, I confess I have the greatest difficulty in seeing that such a
man can be held to have reasonable and probable cause for prosecuting.’ But it does not have to be shown that
Prosecutor positively believed that Defendant was guilty: Tempest v Snowden [1952] 1 KB 130, 139 (per
Denning LJ), Glinski v McIver [1962] AC 726, 758 (per Lord Denning). All that has to be shown is that he thought
Defendant was probably guilty.
7
Glinski v McIver [1962] AC 726, 766 (per Lord Devlin): ‘there must [have been] cause (that is, sufficient
grounds . . .) for thinking that [Defendant] was probably guilty of the offence imputed.’
8
[1938] A.C. 305 at 316 per Lord Atkin.
9
(1878) 8 Q.B.D. 167 at 171, affirmed (1882) 46 L.T. 130.
BLL 221 HANDOUT 5

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.
4. Malice
In a claim for damages related to malicious prosecution or other abuse of
legal proceedings, the claimant is required to establish ‘malice in fact’. This
means showing that the defendant was motivated by either spite, ill-will
towards the claimant, or by indirect or improper motives when initiating the
legal proceedings. However, it's important to note that malice is not proven
simply because the claimant's conviction served as a necessary step toward
achieving some ulterior objective of the defendant. The burden of proving
malice rests with the claimant. It is worth emphasising that even if malice
is proven, the claimant still fails to establish a case if they do not
demonstrate a lack of reasonable and probable cause. While malice can be
inferred from a lack of reasonable and probable cause, the absence of
reasonable and probable cause should not be inferred from malice alone.
These two elements must be independently established in a claim for
damages related to malicious prosecution or abuse of legal proceedings.
See Anti-Corruption Commission v Sambondu (Appeal No. 054/2013)
[2017] ZMSC 136 (16 October 2017)
5. Damage needs to be shown for malicious prosecution claim to
succeed.
To support a claim for damages for malicious prosecution, one of three
heads of damage must be shown. The damage may be:
(1) damage to a person’s fame, as where the matter of which he is
accused is scandalous; or
(2) damage done to the person, as where his life, limb or liberty is
endangered; or
(3) damage to his property, as where he is put to the expense of
acquitting himself of the crime with which he is charged. 10
The claimant must show that any damage to fame suffered was a necessary
and natural consequence of the charge itself, and as regards the second
head of damage, that actual loss of liberty was suffered.11 Once one of
these heads of damage is proved, damages are at large and may include
compensation for loss of reputation and injured feelings.

10
Savile v Roberts (1698) 1 Ld Raym 374.
11
Berry v British Transport Commission [1961] 1 QB 149.
BLL 221 HANDOUT 5

Reading list
Cooke J, Law of Tort (12th edn, Pearson 2015)
Harpwood V, Modern Tort Law (7th edn, Routledge 2009)
Jones L, Introduction to Business Law (2nd edn, OUP 2013)
Peel E and Goudkamp J, Winfield and Jolowicz on Tort (19th edn, Sweet &
Maxwell 2014)

©2023
Dumisani J Ngoma LLB, MA, AHCZ, PhD