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The Tort of Malicious Process

The Tort of Malicious Process

Malicious process is the civil wrong, otherwise known as a tort, which relates to the deliberate abuse of power on the part of the police. It involves the commencement of some form of legal procedure other than a prosecution, which is without reasonable or probable cause. In other words, a procedure that has been commenced ‘maliciously’.

Malicious process is the civil wrong… which relates to the deliberate abuse of power on the part of the police.

Malicious process covers situations where the police deliberately misuse the criminal courts in respect of an individual. It differs from the tort of malicious prosecution as no actual prosecution is required for malicious process. Rather, malicious process covers those circumstances in which the police abuse the system of the criminal courts against an individual, other than through instigating a prosecution maliciously. Malicious process therefore encompasses applications for warrants, such as search warrants and warrants for arrest.

Elements of the tort

The tort of malicious process has four components, each of which must be proved for an individual to have a cause of action. They are as follows:

  1. An application for some form of warrant was made, and the application was successful.
  2. There was no reasonable or probable cause for making the application.
  3. The application was made maliciously.
  4. The prospective claimant suffered damage as a result.
Who bears the burden of proof?

As a claim for malicious process is a civil action, the claimant bears the burden of establishing the presence of all elements of the tort. The standard of proof is the civil standard of the balance of probabilities.

Malicious process therefore encompasses applications for warrants…

Lack of reasonable and probable cause

Reasonable and probable cause was defined in the case of Hicks v Faulkner (1878) 8 QBD 167, at page 171 as:

An honest belief in the guilt of the accused… founded on reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary 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.

Therefore, lack of reasonable and probable cause has two components:

  1. Lack of belief in the claimant’s guilt, and
  2. An objective lack of evidence supporting the prosecution.

Malicious process is quite different from the tort of malicious prosecution in that for a prosecution to be malicious, it must have ended in the claimant’s favour. In claims of malicious process, the applications to which the proposed action relates is often an application hearing to which the claimant has no right to attend, such as applications for warrants. In these circumstances, for a claim of malicious process to succeed, it need not be shown that the process to which the claim relates, i.e. the application for a warrant, concluded in the claimant’s favour. If, however, the claim relates to a process to which both parties are in attendance, then the process must terminate in the claimant’s favour for him to be able to pursue a cause of action in malicious process.

Damage

For a claim of malicious process to succeed, it is not enough that the process engaged in by the police was successful, malicious and lacking in reasonable and probable cause. The claimant must have additionally suffered loss as a result of this.

As a claim for malicious process is a civil action, the claimant bears the burden of establishing the presence of all elements of the tort.

Damages for malicious process can be claimed for the following:

  • Financial loss
  • Loss of liberty
  • Death
  • Personal injury (including both physical and psychiatric injury).

The burden is on the claimant to prove that he did in fact suffer damage as a result of the police’s actions.

The Constables Protection Act 1750

Section 6 of the Constables Protection Act provides that if an individual is arrested under a warrant, he has no claim against the police officer if the officer is acting in accordance with the warrant. However, the tort of malicious process provides some remedy for individuals who are making a claim as a result of searches or arrests made in accordance with a warrant. Thus, whilst subservience to a warrant is a complete defence to a claim of false imprisonment (because it is the court that has issued the warrant, the police have merely executed it), if a warrant was applied for on the basis of malice and without reasonable or probable cause, the individual may have a cause of action in malicious process.

 
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