Definition
Wrongful criminal proceedings.
Instituting criminal case without reasonable cause and with malice.
Etymology & Origin
From Old French 'malicieus' (wicked, spiteful), derived from Latin 'malitia' (badness, wickedness) from 'malus' (bad, evil), combined with 'prosecution' from Late Latin 'prosecutio' (pursuit), from 'prosequi' (to follow after, pursue). Malicious prosecution is thus a 'wicked pursuit' through the legal process — the abuse of criminal justice to harass another.
Full Legal Analysis
Malicious Prosecution: The Abuse of Criminal Justice
The criminal law exists to punish genuine wrongdoing, not to serve as an instrument of private vendetta. Malicious prosecution is the tort committed when a person, actuated by malice and without any reasonable and probable cause, sets the criminal law in motion against another who is ultimately shown to be innocent. The harm inflicted — arrest, social stigma, expense, anxiety, loss of reputation — is real, and the law allows the wrongly accused to recover damages from the instigator.
The Four Essential Elements
To succeed in an action for malicious prosecution, the claimant must establish four elements: (a) that he was prosecuted by the defendant — meaning criminal proceedings were instituted and carried forward to a conclusion, usually termination in the accused's favour; (b) that the prosecution was instituted without reasonable and probable cause — an objective test of whether a reasonable person, acting on the facts known to the defendant, would have believed the accused guilty; (c) that the defendant acted maliciously — with some purpose other than bringing an offender to justice, such as personal spite or an ulterior motive; and (d) that the prosecution terminated in the accused's favour — by acquittal, discharge, withdrawal, or quashing.
Reasonable and Probable Cause
The absence of reasonable and probable cause is the heart of the tort. It is not enough that the accused was innocent; the defendant must have lacked an honest belief, based on reasonable grounds, in the guilt of the accused. Mere error or negligence is insufficient; there must be such a want of reasonable cause that no prudent person would have set the law in motion. The Supreme Court of India, in West Bengal State Electricity Board v. Dilip Kumar Ray and other decisions, has reiterated that the burden of proving every element lies heavily on the plaintiff, for the tort strikes at the willingness of citizens to report genuine crime.
“The courts are not weapons to be turned upon one's enemies. He who, without honest belief and lawful purpose, drags an innocent man through the doors of criminal justice must answer in damages for the ruin he inflicts — for reputation once scorched by a false charge is not easily restored.”
