Malicious Prosecution

Overview

There are significant privileges for persons who make criminal complaints. In a criminal context, a person may be prosecuted notwithstanding that he is ultimately acquitted, or indeed it is apparent in hindsight that he is not guilty.

Where, however, a criminal prosecution is initiated maliciously without reasonable and probable cause, the person who instituted the proceedings may be liable to the prosecuted person who has thereby suffered damage.

It must be proved that the person making the complaint did not act in good faith for a proper motive. The complaint must be made without reasonable cause and an honest belief in the guilt of the accused. The circumstances must be such as would lead an ordinary prudent person to conclude there was possible guilt.

The proceedings must not be successful. Damage must be shown to be incurred by the defendant.

There are other protections in the criminal process which seek to reduce the risk of persons being tried for serious offences where there is no reasonable ground. The Criminal Procedure Act allows for an application to the court to prevent a matter proceeding by way of a Circuit Court trial where there is no case to answer.

Complaint

The defendant must have instituted the proceedings.  The institution of proceedings does not imply that the defendant must have prosecuted them. Indeed, they will generally be prosecuted by a public authority.

A person may initiate a criminal action by making a complaint to the Gardai or equivalent authority.  It is sufficient that he asserts the case to the authorities and indicates a willingness to assist the prosecution.

The defendant must have been instrumental in the initiation of the prosecution. If he makes the complaint, initiates the matter and assists in the prosecution, this will suffice.

If a person asserts that he suspects that an offence has taken place and a person is thereby arrested, this may be sufficient.  It may not necessarily be enough, however, if he simply gives an account of events to the police.

Failed Prosecution

It must be shown that the proceedings were not successful. A conviction precludes liability. The mere fact of being wrongly prosecuted is insufficient for a claim for malicious prosecution.

The failure of the prosecution includes proceedings which have started but were not completed by reason of being withdrawn, an acquittal on trial or an appeal. The plaintiff need not have been acquitted, nor need the proceedings even concluded. The proceedings may be withdrawn, discontinued or overturned on an appeal.

Malicious prosecution is not made out if the prosecution is successful.  This is said to be because it would be a collateral attack on the criminal justice system,  as it would involve a criminal verdict or conviction being challenged in subsequent civil proceedings with a lower burden of proof.

This has been criticised as anomalous. It is argued to be anomalous that a person might be prosecuted and convicted maliciously, and the courts may review the position in future.

Intent and State of Mind

The plaintiff must show that the defendant had a lack of reasonable and probable cause for initiating the prosecution. Reasonable and probable cause is an honest belief in the guilt of the accused, with a basis on reasonable grounds and circumstances, which assuming them to be true, would lead an ordinary cautious person in the position of the complainant to the conclusion that the defendant was probably guilty of the crime concerned.

The defendant’s belief must be both honest and have reasonable cause.  The presence of reasonable cause or honest belief by itself is not sufficient. The person instituting a prosecution on a belief honestly held but not based on any examination or reasonable review of the facts or consideration of the circumstances may be liable.

Traditionally, it was said that the plaintiff must be proven to act maliciously.  In the modern context, this refers to an absence of good faith.  This implies that the prosecution has been initiated for some extraneous inappropriate purpose or motive.

Loss and Liability

The claimant must show damage and loss.  The damage may be to the person’s reputation, his safety or his financial interests. It must arise from the charge and prosecution.

If the prosecution is in respect of a matter which is potentially defamatory or scandalous, a loss will be easily shown.  Most serious offences will readily meet this requirement.

Strict liability offences and less serious offences may not of themselves be sufficient to show a loss to reputation. In this case, another basis.