TORT 066 Malicious Prosecution The Five Essentials and Reasonable and Probable Cause — Law of Torts Notes for Judiciary

Malicious Prosecution: The Five Essentials, Reasonable and Probable Cause, and the Distinctions from False Imprisonment, Defamation and Abuse of Process

Malicious prosecution is the institution of criminal proceedings against a person, without reasonable and probable cause and maliciously, which terminate in his favour and cause him damage. The tort balances two public interests that pull in opposite directions: that a person who believes an offence has been committed should feel free to complain, and that nobody should be dragged through a prosecution for an improper purpose. It resolves that tension by requiring the plaintiff to prove five things, and to prove a negative among them.

The five essentials, the burden of proof, why an acquittal proves nothing, and the three distinctions

1. The Five Essentials

The essential	What must be shown
1. Prosecution by the defendant	That the defendant prosecuted the plaintiff, that is, set the criminal law in motion against him
2. Termination in the plaintiff's favour	That the proceedings have ended, and ended in his favour
3. Absence of reasonable and probable cause	That the defendant had no reasonable and probable cause for the prosecution. This is a negative, and the plaintiff must prove it
4. Malice	That the defendant acted with malice, that is, with some improper or indirect motive
5. Damage	That the plaintiff suffered damage to his reputation, to his person or liberty, or to his property

2. Prosecution by the Defendant

To prosecute is to set the law in motion, and the law is set in motion only where an appeal is made to some person clothed with judicial authority in respect of the matter.
Merely giving information to the police, honestly and without more, is not prosecuting. A person who reports what he believes to be a crime and leaves the authorities to act is not the prosecutor, even if a prosecution follows.
But a person who lays a false charge, or who procures the prosecution by supplying false information, is the prosecutor in substance, and cannot shelter behind the fact that the formal prosecution was conducted by the State.
The question is who was the real and effective cause of the prosecution. Where the police exercised an independent judgment on the material before them, the informant is not liable; where they acted on information the defendant knew to be false, he is.
Proceedings that are merely administrative or departmental are not a prosecution, nor are proceedings before a body exercising no judicial authority.

3. Termination in the Plaintiff's Favour

The proceedings must have ended. A suit brought while the prosecution is still pending is premature, and this requirement exists to prevent the civil court from pronouncing on a matter the criminal court has yet to decide.
They must have ended in the plaintiff's favour, which includes an acquittal, a discharge, a withdrawal, a quashing of the proceedings, or their being dropped.
The plaintiff need not establish his innocence. It is enough that the prosecution did not result in his conviction.
A conviction, even one later set aside on a technicality, will ordinarily defeat the claim, because it establishes that there was cause for the prosecution.

4. Absence of Reasonable and Probable Cause

📖 Hicks v. Faulkner (1878) 8 QBD 167

Facts The plaintiff sued for malicious prosecution, and the question arose as to the meaning of reasonable and probable cause.

Held Hawkins J gave the definition that has been followed ever since, in England and in India.

Ratio Reasonable and probable cause means 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. The definition has a subjective limb, the prosecutor's honest belief, and an objective limb, whether the facts known to him would have led a prudent man to that conclusion. Both must be established, and the defence fails if either is absent.

The question is judged on the facts as they appeared to the prosecutor at the time, and not on what emerged afterwards at the trial.
He need not have been satisfied of guilt beyond reasonable doubt, only that the accused was probably guilty.
A prosecutor who honestly acted on legal advice, after a full and fair disclosure of the facts, will ordinarily be held to have had reasonable and probable cause.
Whether the facts found amount to reasonable and probable cause is a question for the court, and not one to be left to the finder of fact on the evidence alone. What the facts were is a question of fact; what they amount to is a question of law.

5. Malice

Malice here means any improper or indirect motive, and not merely spite or ill will. It is the presence of a purpose other than the proper one of bringing an offender to justice.
Examples of improper motive are prosecuting to extort money or property, to force a settlement of a civil dispute, to silence a witness, to ruin a business rival, or to gratify personal enmity.
Malice may be inferred from the absence of reasonable and probable cause, because a prosecution launched without any basis invites the inference that it was launched for some other reason.
But the absence of reasonable and probable cause is never inferred from malice. Proof that the defendant hated the plaintiff establishes nothing about whether he had grounds for the charge, and the two must be proved separately.
Both must coexist. Malice without want of cause is not actionable, because a person with good grounds may prosecute whatever his feelings; want of cause without malice is not actionable either, because the law does not punish honest error.

6. Damage

The head	What it covers
Damage to reputation	The scandal of the charge itself. It is presumed where the charge imputes something necessarily damaging to the plaintiff's good name
Damage to the person or to liberty	Where the plaintiff was arrested, detained in custody, or put to the indignity of the process
Damage to property	Chiefly the costs incurred in defending the prosecution, which the criminal court may not have awarded, together with any loss of employment or business

Damage is an essential ingredient, and malicious prosecution is therefore not actionable per se, which distinguishes it from the trespass torts.
The charge must be one that would necessarily and naturally cause one of these three kinds of damage. A prosecution for an offence carrying no imprisonment, no scandal and no cost would found no action.

7. The Burden of Proof

The burden of proving every ingredient lies on the plaintiff, including the absence of reasonable and probable cause: Abrath v. North Eastern Railway Co. (1883) 11 QBD 440.
That unusual burden, requiring proof of a negative, is the principal reason these suits so rarely succeed. The plaintiff must in effect establish what was in the defendant's mind, from material to which he has no direct access.
The Supreme Court in West Bengal State Electricity Board v. Dilip Kumar Ray, AIR 2007 SC 976, described malicious prosecution as a judicial proceeding instituted by one person against another, for a wrongful or improper motive and without probable cause to sustain it.
The burden does not shift because the prosecution was withdrawn or ended in an acquittal, and the plaintiff must still prove want of cause affirmatively.

⚠ An acquittal does not prove malicious prosecution

This is the point most often misunderstood, and it is worth stating plainly. An acquittal establishes exactly one of the five essentials: the second, that the proceedings terminated in the plaintiff's favour. It says nothing whatever about whether the prosecutor had reasonable and probable cause when he acted, and nothing at all about his motive. Most acquittals occur because the prosecution failed to discharge the criminal standard of proof, which is a very different thing from establishing that there were no grounds for the charge in the first place. A prosecution may be brought on entirely proper material, conducted honestly, and still fail, and a prosecutor who acted in good faith on information that looked sound at the time owes the acquitted person nothing. A plaintiff who comes to court with nothing but his acquittal has proved one ingredient out of five.

8. Malicious Prosecution of Civil Proceedings

The general rule is that no action lies for maliciously instituting ordinary civil proceedings. The reasons given are that the successful defendant recovers his costs, and that a civil suit does not in itself carry the scandal that a criminal charge does.
The recognised exceptions are proceedings that necessarily damage a person's reputation or credit by their mere institution, such as a petition for insolvency or for the winding up of a company, and the malicious obtaining of certain kinds of process such as a search warrant or an order of attachment.
In England the position has changed. In Willers v. Joyce [2016] UKSC 43 the Supreme Court held by a majority that the tort of malicious prosecution extends to the malicious institution of civil proceedings generally.
Indian law has not followed Willers v. Joyce, and the general rule with its limited exceptions continues to represent the position here.

9. The Distinctions

	Malicious prosecution	False imprisonment
Who imposes the restraint	The court, on judicial process. The defendant only set it in motion	The defendant himself, without any process
Is malice required	Yes, and so is want of reasonable cause	No. The motive is irrelevant
Is damage required	Yes. It is an essential ingredient	No. Actionable per se
Burden of proof	On the plaintiff throughout, including the negative	The plaintiff proves the restraint; the defendant must then justify it
Must the proceedings have ended	Yes, and in the plaintiff's favour	No question of proceedings arises

	Malicious prosecution	Defamation	Abuse of process
The wrong	Instituting a prosecution without cause and with malice	Publishing a false statement injuring reputation	Using a properly begun proceeding for a purpose it was not designed to serve
Was the proceeding rightly begun	No. It was wrongly begun	No proceeding need be involved	Yes. The proceeding itself was proper
Must it have terminated	Yes, and in the plaintiff's favour	No	No
Is want of reasonable cause required	Yes	No	No
Privilege	None attaches. The tort exists because absolute privilege would otherwise leave the victim of a false charge without any remedy	A statement made in the course of judicial proceedings is absolutely privileged	Not in issue
The typical instance	A false charge laid to settle a private score	A false accusation published outside court	A writ or a warrant used to extort a payment

10. The Position Stated Shortly

1. Malicious prosecution requires five things: prosecution by the defendant, termination in the plaintiff's favour, absence of reasonable and probable cause, malice, and damage.

2. Merely giving information honestly to the police is not prosecuting; laying a false charge or procuring the prosecution by false material is.

3. The proceedings must have ended in the plaintiff's favour, but he need not establish his innocence.

4. Reasonable and probable cause is defined in Hicks v. Faulkner and has a subjective limb, honest belief, and an objective limb, reasonable grounds.

5. Whether the facts amount to reasonable and probable cause is a question for the court; what the facts were is a question of fact.

6. Malice means any improper or indirect motive and not merely spite, and may be inferred from want of reasonable cause.

7. Want of reasonable cause is never inferred from malice, and both must be proved separately.

8. The burden of proving every ingredient, including the negative, lies on the plaintiff: Abrath v. North Eastern Railway.

9. An acquittal establishes only that the proceedings terminated favourably, and proves nothing about cause or motive.

10. No action ordinarily lies for maliciously instituting civil proceedings in India, the English extension in Willers v. Joyce not having been adopted here.