Malicious intent?

Claims for malicious prosecution are expensive to defend. Aside from the fact that they increase the potential award for compensatory damages, they also raise the spectre of aggravated and exemplary damages. Siobhan Sutton provides some advice for forces.

The majority of claims against the police are funded through the Legal Services Commission (LSC). To satisfy the cost/benefits matrix, claimants’ solicitors have to satisfy the LSC that the likely damages outweigh the costs of pursuing the action. They will have a better chance of doing this by claiming malicious prosecution in addition to false imprisonment.

Claims for malicious prosecution entitle claimants to trial before judge and jury where findings of fact are required. This increases the overall costs of the litigation and enhances the risk of an adverse finding against the police.

This area of litigation is generally fact-specific and it is therefore difficult to provide generic advice on how to risk manage the situations in which these cases arise. However, by focusing on the key elements of this tort, it is possible to determine how these claims can be dissembled and defended successfully.

Essential elements

To succeed in an action for malicious prosecution, a claimant must prove five elements:

1.There has been a prosecution which has caused the claimant damage.

Malicious prosecution is an “action on the case”. Consequently, damage must be proven. This does not include inconvenience or distress. In summary, the types of damage are:

•Damage to reputation to the extent that the accusation “tended to lower him in the estimation of right thinking members of society generally” (Sim v Stretch [1936] 2 ALL E.R. 1237).

•Where the claimant was charged with an imprisonable offence and is therefore in danger of loss of liberty.

•Where a claimant has incurred any additional legal or other cost in defending the charge for which he was not fully compensated – the difference between awarded and actual costs constitutes ‘property damage’ (see Berry v BTC [1962] 1 Q.B. 306).

In the majority of cases, the claimant will be able to establish one if not more of the above.

2.The prosecution was instituted or continued by the defendant. Consideration should be given to determining the identity of the prosecutor. It should not be accepted automatically that it was the police. It is possible to argue that the claim should be directed to the original complainant. The test as set out in Martin v Watson HL [1996] 1 A.C74; followed in Mahon v Rahn and Others (No 2) [2000] 1 W.L.R 2150 is as follows:

•Did the claimant desire and intend that there should be a prosecution?

•If so, were the facts so peculiarly within the complainant’s knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgement?

•Has the complainant procured the institution of proceedings by the prosecutor either by furnishing information which he knew to be false or by withholding information which he knew to be true?

Although there are clear public policy grounds for restricting opportunities where a member of the public can be sued for malicious prosecution, there are equally convincing public policy reasons as to why there must be occasions where claimants can sue individuals who make unfounded and malicious complaints.

In essence, where the facts relating to the offence can only be within the complainant’s knowledge, it becomes virtually impossible for the police to exercise any independent discretion or judgement. Such scenarios include domestic violence, assault and allegations of rape. If a prosecution ensues, it is arguable in those circumstances that it was instituted by the claimant. If convincing arguments can be made on this issue then this is a potentially successful and economic route at avoiding civil proceedings.

3.Was the prosecution terminated in the claimant’s favour?

A favourable terminat