Essential Elements of Malicious

Prosecution

ABHILASH KUMAR
GAUR
190101004
 INTRODUCTION
 Courts generally agree on the elements required for a malicious prosecution claim, but some states combine elements or

arrange them differently. The six elements of this claim are as follows:

1. The institution or continuation of a civil or criminal legal proceeding against the plaintiff;

2. By, or abetted by, the defendant (the prosecutor or plaintiff in the malicious action);

3. Termination of the prior proceeding in favour of the plaintiff (for instance, the case was dismissed);

4. Absence of probable cause for instituting the prior proceeding;

5. Malice as the primary purpose for the prior action; and

6. Injury or damage to the plaintiff as a result of the prior action.

1. Institution or continuation of legal proceedings;

 A person who brings a private prosecution is obviously a prosecutor for this purpose and so is one who swears information
or who is bound over to act as a prosecutor. However, in Martin v Watson the House of Lords held that it is not necessary
that the defendant should be the prosecutor in any technical sense; what matters is that he should be the person responsible
for the prosecution being brought.

 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.

 The person to be sued is the person who was ‘actively instrumental in putting the law in force. There was a conflict on the
question of whether there is the prosecution of a person before the process is issued calling upon him to defend himself. One
view was that a prosecution began only when the process was issued and there could be no action when a magistrate
dismissed a complaint under section 203 of the code of criminal procedure. The other view was that a prosecution
commenced as soon as a charge was made before the court and before the process was issued to the accused.
2. Termination of the prosecution in the plaintiff’s
favour

 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.

 The termination may be by an acquittal on the merits and a finding of his innocence or by a dismissal of the complaint for technical

defects or for non-prosecution. If however he is convicted he has no right to sue and will not be allowed to show that he was

innocent and wrongly convicted.

 His only remedy, in that case, is to appeal against the conviction. 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.

 It was held in Reynolds v Kennedy that no action could lie if the claimant had been convicted, even if his conviction was later

reversed on appeal, the reason apparently being that the original conviction showed conclusively that there was the foundation for

the prosecution.
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 founded upon reasonable
grounds, of the existence of a circumstances, which assuming them to be true, would reasonably lead an ordinary prudent man and

cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed.

 As laid down in Hicks v. Faulkner there must be an honest belief of the accuser in the guilt of the accused, such belief must be based on

an honest conviction of the existence of circumstances which led the accuser, such secondly mentioned belief as to the existence of the

circumstances must be based upon reasonable grounds that are such grounds, as would lead any fairly cautious man in the defendant’s

situation to believe so and the circumstances so believed and relied on by the accuser must be such as the amount to a reasonable ground

for belief in the guilt of the accused.

3. Absence of reasonable and probable cause

 The fact that the plaintiff has been acquitted is not prima facie evidence that the charge was unreasonable and false. Lack of reasonable

and probable cause is to be understood objectively, it does not connote the subjective attitude of the accuser. The fact that the accuser

himself thinks that it is reasonable to prosecute does not per se lead to the conclusion that he had a reasonable and probable cause.

 If there is reasonable and probable cause for the prosecution no question of malice arises, because the existence of reasonable cause in

the mind of the plaintiff is sufficient, whatever his motive may have been, to enable him to justify the proceedings he brings or the

prosecution he starts.

 It is the responsibility of the plaintiff to show that there was no reasonable and probable cause for the prosecution of the case. If the

defendant can be shown to have initiated the prosecution without himself holding an honest belief in the truth of the charge, it cannot be

said that he acted upon reasonable and probable cause.

  
4. Malice

 The proceeding complained of by the plaintiff must be initiated in a malicious spirit, that is from an indirect and improper

motive, and not in furtherance of justice. A prosecution is not malicious merely because it is inspired by anger, and however

wrong-headed a prosecutor maybe if he honestly thinks that the accused has been guilty of a criminal offense he cannot be the

initiator of malicious prosecution.

 Spite and ill-will are sufficient but not necessary conditions of malice. Malice means the presence of some other and improper

motive that is to say the legal process in question for some other than its legally appointed and appropriate purpose.

 Anger and revenge may be proper motives if channeled into the criminal justice system. The lack of an objective and

reasonable cause is not evidence of malice but lack of honest belief is evidence of malice.
 5. Damage
It has to be proved that the plaintiff has suffered damage as a result of the prosecution complaint. Even though the
proceedings terminate in favor of the plaintiff, he may suffer damage as a result of the prosecution. The damages may not
necessarily be pecuniary. If he cannot do so he will get only nominal damages. This rests on the principle of injuria sine
damnum it seems, but where the attachment is bonafide the principal will not apply.
The damage must also be the reasonable and probable results of malicious prosecution and not too remote. In assessing the
damage the court to some extent would have to consider, the nature of the offense the plaintiff was charged with, the
inconvenience to which the plaintiff was charged to, monetary loss and, the status and prosecution of the person prosecuted.
In Saville v. Roberts, Halt CJ classified damage for the purpose of this tort as of 3 kinds, any of which might ground the
action. Malicious prosecution might damage-

a. A person’s fame (i.e. his character)

b. Safety of his person

c. Security of his property by reason of his expense in repelling an unjust charge.