Malicious Prosecutions and the Deliberate Misuse of Police Power

We like to think of the police as the authority responsible for protecting citizens by locating and preventing crime.

Most of the time, we hope that officers act lawfully in carrying out their duties. However, there are occasions where the police misuse their power. Abuse of power can amount to either a civil wrong or a criminal offence.

This article explains the tort of malicious prosecution, a civil wrong arising from the deliberate misuse of police power, and the remedies available to claimants.

What is a malicious prosecution?

A malicious prosecution is a criminal prosecution pursued without reasonable and probable cause, which later concludes in the accused’s favour.

This may occur where the accused is acquitted, the proceedings are discontinued, or the conviction is quashed on appeal.

To establish the tort, the claimant must prove the following elements:

• The police prosecuted.
• The proceedings ended in the claimant’s favour.
• There was no reasonable and probable cause to bring the prosecution.
• The police acted maliciously.
• The claimant suffered damage as a result.

Damage may include harm to reputation, personal injury, loss of liberty or loss of property.

What is reasonable and probable cause?

Reasonable and probable cause was defined in Basebe v Matthews (1867) LR 2 CP 684. The test requires both a subjective and objective element. The police must honestly believe the accused is guilty, and a reasonable person must also believe, based on the facts, that the accused was probably guilty.

If either element is missing, there is no reasonable and probable cause.

Why does malicious prosecution exist?

The tort acts as a safeguard to protect individuals from unwarranted criminal charges.

Being charged with a criminal offence can have serious consequences. A person may be remanded in custody, lose wages, suffer reputational harm or experience significant stress and anxiety. The law must therefore provide a mechanism to ensure that individuals are not subjected to false charges and that the police do not act in bad faith when deciding whether to prosecute.

Who decides the facts at trial?

In malicious prosecution claims, the parties are usually entitled to opt for trial by judge and jury. This is unusual in civil litigation and reflects the seriousness of allegations involving misuse of police power.

A balancing act

While individuals must be protected from unwarranted accusations, it is equally important that the police are not unduly restricted when deciding whether to prosecute. The rights of individuals must be balanced against the need for effective law enforcement.

The essential ingredient in malicious prosecution is bad faith. An acquittal alone does not give rise to a claim. The claimant must prove that the police acted maliciously when bringing the prosecution.

When is a prosecution not malicious?

An acquittal does not automatically make a prosecution malicious. Even if the evidence was minimal, the prosecution will not be malicious if it was brought for a proper purpose. Thousands of people are acquitted each year, but only a small proportion will have a valid claim.

When is a prosecution malicious?

A prosecution is malicious if the police’s motive is something other than bringing an offender to justice. For example, if officers pursue a prosecution out of revenge, this may constitute an improper motive. Fabricating evidence also makes a prosecution malicious.

Can a prosecution be malicious if the claimant committed the offence?

One of the fundamental elements of the tort is that the proceedings must have ended in the claimant’s favour.

However, case law suggests that if the police can prove on the balance of probabilities that the claimant did in fact commit the offence, this may affect the claim. This is more likely to influence the assessment of damages rather than liability, but it may also undermine the tort if the claimant cannot establish that the prosecution was unwarranted.

Remedies for malicious prosecution

Monetary compensation is the primary remedy.

Civil actions against the police may be pursued as a matter of principle, but for many claimants, particularly those who have suffered reputational harm, damages are the only adequate remedy.

To recover damages, the claimant must prove actual loss. The fact that the prosecution was malicious is not enough.

How much compensation is awarded?

In Thompson v Commissioner of Police of the Metropolis [1998] QB 498, Lord Woolf MR provided guidance on damages. The starting point of £2,000 set in 1997 must be adjusted for inflation and for the circumstances of the case. Factors influencing the award include:

• the length of the proceedings
• whether the case went to trial
• the seriousness of the offence charged

Limitation period

A claim for malicious prosecution must be brought within six years of the end of the criminal proceedings.

Other ways to hold the police to account

Individuals may make complaints to the Independent Office for Police Conduct (IOPC), the body responsible for overseeing police complaints in England and Wales. Complaints must generally be made within twelve months.

Rebecca Broadbent hopes to specialise in civil actions against the police, including claims for malicious prosecution.