Understanding the Law on Malicious Prosecution, Who is Liable? And, What Remedies are available to the Injured party?
Malicious Prosecution is a tortious Claim (is a claim for damages. This is the monetary award (compensation) that will indemnify the injured party for the harm that the accident has caused. Tort claims are a preferred option in the aftermath of an accident because the injured party can claim and receive damages that compensate the real loss the injured party has suffered.)
According to Winfield & Jolowicz, The history of the Tort of Malicious Prosecution can be traced back to the writ of conspiracy which was in existence as early as Edward I’s reign. This fell into decay in the 16th century, partly because the writ of maintenance supplanted it. However, this was probably confined to officious intermeddling in civil suits. This gap was filled by an action on the case which appeared in Elizabeth I’s reign and eventually became known as the action for malicious prosecution. It was put on a firm footing in 1698 in Saville v Roberts
The general rule is that, ‘every person has the freedom to bring criminals to justice. However, this does not mean that any innocent person should be brought to justice unnecessarily. It is in order to check false accusation of innocent persons and that is what the tort of malicious prosecution intends to protect.’ As Per Justice Ssekaana Musa, in the case of Olango v Attorney General & Anor
Relatively, in the case of Glinski v McIver and Gregory v Portsmouth court observed that;
‘Liability for malicious prosecution has always had to steer a path between two competing principles—on the one hand the freedom of action that everyone should have to set the law in motion and to bring criminals to justice and on the other hand the necessity to check lying accusations against innocent people and the burden which has to be undertaken by the claimant in a case of malicious prosecution is a heavy one, so heavy that no honest prosecutor is likely to be deterred from doing his duty.’
So How Then is this Tort Committed?
The tort of malicious prosecution is committed where there is no legal reason for instituting criminal proceedings. It occurs because of the abuse of the minds of judicial authorities whose responsibility is to administer criminal justice.
However, as already observed by Justice Ssekaana Musa in Olango v Attorney General & Anor that,
‘A mere acquittal in the plaintiff’s favour does not mean that he or she has been maliciously prosecuted. He/she must prove other conditions of malicious prosecution.
So if it is this simple, what makes this Tort so complicated to Claim against?
One reason for the complexity of the law in this area is that a number of other torts and principles come into play where the defendant is involved in the events leading up to a prosecution.
1. First, the claimant may have been arrested based on information given by the defendant. That is to say, a police officer carrying out the arrest is likely to deprive the claimant of any claim against the defendant for false imprisonment.
2. Secondly, the information given by the defendant is likely to be defamatory, but not only will any evidence given by him in court be subject to absolute privilege, it has now been held that the same applies to a mere complaint to the police. As seen in Westcott v Westcott
However,
If, the defendant is a prosecutor the essence of the complaint is that he has abused the process of the court and the fact that for other legal purposes he is immune from suit is irrelevant. The application of the law of negligence in this area would be inconsistent with the restrictions imposed by the law of malicious prosecution.
There is no liability in negligence in respect of the conduct of a prosecution nor the investigation of a charge made against the claimant. There might be liability for misfeasance in a public office but that requires a form of malice and this is not satisfied by negligence, however crass.
Therefore, what are the Elements of the Tort of Malicious Prosecution?
According to Odunga’s Digest on Civil Case Law and Procedure, the essential ingredients to prove malicious prosecution are as follows:
1. The criminal proceedings must have been instituted by the defendant
2. The defendant must have acted without reasonable or probable cause
3. The defendant must have acted maliciously
4. The criminal proceedings must have been terminated in the plaintiff’s favor.
A. The first element to prove is that, the defendant must have instituted criminal proceedings. That is to say, that, (at that time, the defendant was a prosecutor who instituted the criminal proceedings)
So who qualifies as a Prosecutor?
According to Winfield & Jolowicz, A prosecutor is any person who brings a private prosecution, for this purpose and so is one who swears an information or who is bound over to act as a prosecutor (by virtue of statutory authority). However, in Martin v Watson where the defendant made various charges to the police that the claimant had indecently exposed himself to her and this led to a prosecution of the claimant at which no evidence was offered against him. 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 in substance be the person responsible for the prosecution being brought.
Distinguishing the case of Danby v Beardsley where the defendant had been held not to be a prosecutor when he told the police that goods which he mistakenly believed to have been stolen from him had been found in the claimant’s possession, on the ground that in that case there was no malice against the claimant,
Closely referring to the ruling of Lord Keith in the case of Martin v Watson that,
“Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. When the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.”
B. The next element courts look into is that, the defendant acted without reasonable or probable cause.
The definition of Reasonable and Probable cause was defined in Herniman v Smith the House of Lords approved and adopted the definition of reasonable and probable cause given by Hawkins J in Hicks v Faulkner as:
“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.”
This principle applies even where there are multiple or lesser charges. That is to say that If there are several charges in the indictment, the rule as to reasonable and probable cause applies to all of them, but where there is reasonable and probable cause for a prosecution on a lesser charge than that actually preferred, a question of degree may arise: court observed that,
“Where there is a charge of theft of 20s. And reasonable and probable cause is shown as regards 19s. of it, it may well be that the prosecutor, when sued for malicious prosecution, is entitled to succeed, because he was in substance justified in making the charge, even though he did so maliciously. But the contrary must surely be the case if the figures are reversed and reasonable and probable cause is shown as to 1s. only out of the 20s.”
Closely referring to the case of Dr. Willy Kaberuka V Attorney General, wherein Byamugisha J stated that,
“ The question as to whether there was reasonable and probable cause for the prosecution is primarily to be judged on the basis of an objective test and that is to say, to constitute reasonable and probable cause, the totality of the material within the knowledge of the prosecutor at the time he instituted the prosecution whether that material consists of facts discovered by the prosecutor or information which has come to him or both must be such as to be capable of satisfying an ordinary prudent and cautious man to the extent of believing that the accused is probably guilty.”
C. The next element to prove to court is showing that The defendant must have acted maliciously,
According to Gwagilo V Attorney General, malice in the context of malicious prosecution is an intent to use the legal process for some other purpose than its legally appointed and appropriate purpose and the appellant could prove malice by showing for instance that the prosecution did not honestly believe in the case which they were making that there was no evidence at all upon which a reasonable tribunal could convict that the prosecution was mounted a wrong motive and show that motive.
Relatedly Hon. Mr. Justice Bashaija K. Andrew in the case of Mugabi v Attorney General held that,
“It is my view that malice has been established as can be inferred from the Police’ failure to consult the law and/ or to act as a prudent and cautious person would do, and also in acting without reasonable cause. The Police officers at Lugazi Police Station failed even in the simplest of the investigative tasks of retaining copies of the sale agreement Exhibit P III, which would have helped in ascertaining from the witnesses thereto the ownership of the motorcycle. Instead, they kept the Plaintiff reporting to Police for over twelve times without bothering to investigate until when they eventually arrested, detained and subsequently had him prosecuted. This is a manifestation of malice as it was a reckless disregard of the law and the Plaintiff’s legal rights.”
As already observed by Justice Ssekaana Musa in Olango v Attorney General & Anor that,
“The case of Malice in criminal proceedings can be established by looking at the peculiar circumstances of every case or inference from circumstances and cannot be proved by direct evidence. Malice means indirect and improper motive. That is to say; intent to use the legal process in question for some other than it’s legally appointed and appropriate purpose. The plaintiff must show that the prosecution was “motivated not by desire to achieve justice, but for some other reason”. As seen in Zainal bin Kuning v Chan Sin Mian Micheal
He further notes that,
“Malice can be established through enmity, retaliation, haste, omission to make due and proper inquiries, recklessness, harassment, personal spite, sinister motive e.t.c are some of the items which are relied upon for proving the malice.”
D. Lastly, the criminal proceedings must have been terminated in the plaintiff’s favor.
•He (The Claimant) must show that the prosecution ended in his favour but so long as it did, it is of no moment how this came about, whether by a verdict of acquittal, or by discontinuance of the prosecution by leave of the court, or by quashing of the indictment for a defect in it, or because the proceedings were coram non judice.
•The effect of a nolle prosequi (staying by the Attorney General of proceedings on an indictment) was left open to question in an old case which indicated that it was not a sufficient ending of the prosecution because it still left the accused liable to be indicted afresh on the same charge.
•On the other hand, if a conviction stands, then the claimant cannot succeed in an action for malicious prosecution, and this is so even if the conviction is one against which there is no right of appeal and which has been obtained by the fraud of the prosecutor. As seen in Basébé v Matthew, where Byles J observed that, the thought that if the rule were otherwise every case would have to be retried on its merits, and Montague Smith J feared that they would be turning themselves into a Court of Appeal where the legislature allowed none. . The rule rests upon the more general principle that the court will strike out as an abuse of process a suit which is a collateral attack on the decision of a competent criminal court for otherwise there is a risk of inconsistent decisions
•The reason for the favourable termination requirement has been said to be the risk of diverse determinations by different courts on the same facts and between the same parties, but there is no inconsistency in the criminal court finding that the claimant was not guilty and then the civil court finding that the defendant had reasonable and probable cause for the prosecution
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 foundation for the prosecution. In a number of modern cases, however, it was the fact that the proceedings had terminated in the claimant’s favor only as the result of an appeal, but nothing was made of this.”
E. Are there any limitations on the tort of Malicious Prosecution?
According to Section 3(1) of the Civil Procedure and Limitation , which stipulates that;
“No action founded on tort shall be brought against the Government or a local authority or … after the expiration of two years from the date on which the cause of action arose.”
As seen in the case of Picfare Industries Ltd vs Attorney General & Anor wherein Justice Musota while dismissing a suit for being time-barred held at pg. 4 that;
“Statutes of Limitation are in their nature strict and inflexible enactments. Their overriding purpose is ‘interest reipublicalut sit finis litum’, meaning litigation shall be automatically stifled after a fixed length of time irrespective of merits of the case.”
F. The Remedies Available for the Tort of Malicious Prosecution
According to Justice Ssekaana Musa in Olango v Attorney General & Anor He opined that,
‘The plaintiff must prove damage and such damage include damage to reputation, deprivation of liberty or damage to person or property arising from the malicious prosecution. The extent of damage to reputation would depend on the plaintiff’s actual reputation and gravity of the offence for which he was prosecuted. The plaintiff’s reputation should be assessed objectively rather than being focused on his personal circumstances. As seen in Thompson v Commissioner of Police of the Metropolis and Manley v Commissioner of Police for the Metropolis
Plaintiffs must understand that if they bring actions for damages, it is for them to prove their damage; it is not enough to write down particulars and so to speak, throw them at the head of the court, saying, “This is what I have lost, I ask you to give these damages” They have to prove it. As seen in Bendicto Musisi vs Attorney General & Rosemary Nalwadda vs Uganda Aids Commission
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