TORT 143 False Imprisonment and Malicious Prosecution — Law of Torts Notes for Judiciary

False Imprisonment and Malicious Prosecution: Restraint Without Process and Process Without Cause

Both protect liberty and they protect it at different stages. False imprisonment is a trespass: a total restraint of a person's liberty without lawful justification, complete the moment it occurs, actionable per se, and proved simply by showing the restraint and leaving the defendant to justify it. Malicious prosecution is an action on the case: it concerns a proceeding which was lawful in form, set in motion without reasonable and probable cause and with malice, and it requires the plaintiff to prove four things including damage. The dividing line is the intervention of judicial authority: once a Magistrate has applied his mind, the detention that follows is lawful, and the complaint must be about the institution of the proceeding rather than the restraint.

1. The Comparison

	False imprisonment	Malicious prosecution
The nature of the tort	A trespass to the person	An action on the case
The wrong	A total restraint of liberty without lawful justification	Instituting a proceeding without reasonable and probable cause and maliciously
Legal process	Absent, or defective	Present and regular in form
Actionable per se	Yes	No. Damage must be proved
What the plaintiff proves	The restraint and the absence of consent	Prosecution by the defendant; termination in the plaintiff's favour; absence of reasonable and probable cause; malice; and damage
The burden of justification	On the defendant, who must justify the restraint	On the plaintiff throughout
Malice	Irrelevant	An essential ingredient
Termination in the plaintiff's favour	Not required	Essential
Knowledge of the restraint	Not required. A person may be falsely imprisoned without knowing it	Not in issue
Ease of proof	Comparatively easy	Notoriously difficult
Limitation	One year from the release, under Article 74 of the Limitation Act, 1963	One year from the acquittal or the termination, under Article 74

2. False Imprisonment

Two elements: a total restraint of the plaintiff's liberty, and the absence of lawful justification. Nothing else need be shown.
The restraint must be total. A partial obstruction which leaves a reasonable means of escape is not false imprisonment, however inconvenient.
Bird v. Jones, (1845) 7 QB 742 establishes the point. Part of a public bridge was enclosed for seats to view a regatta. The plaintiff climbed into the enclosure and was prevented from going forward, though he was free to go back the way he had come. Held: not false imprisonment. A partial obstruction is not an imprisonment; there must be a total restraint on every side, and a prison must have a boundary.
No physical force is needed. A restraint by the assertion of authority, which the plaintiff submits to, is enough, and this is how most police cases arise.
Knowledge is not required. Meering v. Grahame White Aviation Co., (1919) 122 LT 44 holds that a person may be imprisoned while asleep, drunk, unconscious or unaware of the restraint, and Herring v. Boyle, (1834) 1 Cr M and R 377, which held otherwise in the case of a schoolboy, is no longer followed.
The subject is examined fully in TORT 065.

3. Malicious Prosecution

Five things must be proved, and the plaintiff bears the burden of all of them.
That the defendant prosecuted him, meaning that he was the person who actively instrumental in putting the law in motion, and not merely a person who gave information to the police honestly.
That the prosecution ended in the plaintiff's favour, by acquittal, discharge, withdrawal or quashing. He need not be proved innocent; it is enough that the proceeding terminated without a conviction.
That there was no reasonable and probable cause, meaning an honest belief founded on reasonable grounds in the existence of a state of circumstances which would lead any ordinarily prudent and cautious man to the conclusion that the plaintiff was probably guilty.
That the defendant acted maliciously, that is, with an improper motive and not from a desire to bring an offender to justice. Malice may be inferred from the absence of reasonable and probable cause, but it does not follow automatically.
That the plaintiff suffered damage, to his person, his property or his reputation.
The subject is examined fully in TORT 066.

4. The Dividing Line: the Intervention of Judicial Authority

Detention before a Magistrate has applied his mind is the domain of false imprisonment. An arrest without lawful authority, a detention beyond the permitted period, a failure to produce the arrested person within twenty four hours: these are trespasses and the defendant must justify them.
Detention after a judicial order is not false imprisonment, because the order is the lawful authority for it. The remedy then lies in malicious prosecution, directed at the person who procured the order.
That is the practical reason malicious prosecution exists at all. Without it, a person who set the criminal law in motion maliciously would be immune, the imprisonment that followed being the act of the court and not of him.
Where an arrest is made on a warrant obtained by fraud or on false information, the claim is ordinarily in malicious prosecution, the warrant being regular on its face.
A single episode may produce both: an unlawful arrest, followed by production before a Magistrate and a prosecution that fails, gives a claim in false imprisonment for the period before the remand and in malicious prosecution for what followed.

5. Why One Is Easy and the Other Is Not

	False imprisonment	Malicious prosecution
What the plaintiff must show	That he was restrained	Five separate ingredients
Who must justify	The defendant	Nobody. The plaintiff must disprove justification
State of mind	Not in issue	Malice must be proved affirmatively
Why the difference	Liberty is an absolute right, and any restraint of it calls for justification	Citizens must be free to report crime without fear of being sued if the prosecution fails
The policy behind it	Protection of the subject against arbitrary detention	Protection of the administration of justice from a chilling effect

The difficulty of malicious prosecution is deliberate. If an acquitted accused could sue merely by pointing to his acquittal, nobody would report a crime, and the criminal justice system depends on complainants who may turn out to be wrong.
That is why absence of reasonable and probable cause is the heart of the action, and why an honest but mistaken complainant is protected however much inconvenience he has caused.
West Bengal State Electricity Board v. Dilip Kumar Ray, decided 24 November 2006, restates the standard: malice is not merely the doing of a wrongful act intentionally, but requires that the defendant was actuated by spite or ill will or some indirect or improper motive; and reasonable and probable cause must be such as would operate on the mind of a discreet and reasonable man, the onus resting on the plaintiff.

6. Which to Plead

The facts	The claim
Arrest without a warrant and without lawful grounds	False imprisonment
Detention beyond twenty four hours without production before a Magistrate	False imprisonment for the excess period
Detention after the sentence has expired	False imprisonment, and a constitutional tort under Article 21
A store detention of a suspected shoplifter that proves unfounded	False imprisonment, unless the detention was lawfully justified
A complaint made maliciously which leads to a prosecution that fails	Malicious prosecution
An arrest on a warrant obtained on false information	Malicious prosecution, the warrant being regular on its face
Custodial violence or death	A constitutional tort under Article 32 or 226, where immunity is no defence and fault need not be proved

⚠ Why the burden sits on opposite sides in the two torts

The single most consequential difference between these two actions is not the ingredients but the burden. In false imprisonment the plaintiff proves the restraint and stops; the defendant must then justify it, and if he cannot, he loses. In malicious prosecution the plaintiff must prove the absence of reasonable and probable cause, which is proof of a negative about somebody else's state of mind, and is as hard as anything the law asks of a litigant. The allocation is deliberate and it follows from what each tort is protecting. Liberty is an absolute right: nobody may detain another at all, so a detention is prima facie wrongful and the person who imposed it is the one who must explain. The administration of justice is a shared enterprise that depends on ordinary people reporting what they believe to be crimes, and a rule that made the complainant answerable whenever the accused was acquitted would silence exactly the people the system needs. So the law makes the restraint presumptively unlawful and the complaint presumptively honest, and a practitioner who does not notice which of the two he is pleading will either take on a burden he did not need to carry or fail to discharge one he did.

7. The Position Stated Shortly

1. False imprisonment is a trespass: a total restraint of liberty without lawful justification, actionable per se.

2. Malicious prosecution is an action on the case, requiring proof of five ingredients including damage.

3. Bird v. Jones holds that a partial obstruction leaving a reasonable means of escape is not an imprisonment; the restraint must be total.

4. No physical force is needed, and a restraint by assertion of authority which is submitted to is enough.

5. Meering v. Grahame White Aviation holds that a person may be falsely imprisoned without knowing it.

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

7. The dividing line is the intervention of judicial authority: detention under a judicial order is not false imprisonment.

8. Malicious prosecution exists because otherwise a person who maliciously set the law in motion would be immune, the detention being the court's act.

9. West Bengal State Electricity Board v. Dilip Kumar Ray requires spite, ill will or an indirect motive, and a cause such as would operate on a discreet and reasonable man.

10. In false imprisonment the defendant must justify; in malicious prosecution the plaintiff must disprove justification, and that allocation is the deliberate design of each tort.