Legal Eagle : Malicious prosecution 101

October 10, 2016

There are many situations that could ground a claim for malicious prosecution.

Consider this scenario. The claimant landed at the airport and upon his arrival at the customs hall, he was taken out of the line and his luggage searched. A package with white, powdery substance was found in his luggage.

In light of the above, the police were called. They told him that he was in possession of cocaine. He told the police that the substance was not cocaine but a form of powder for his ailing mother. He told them that he had a document relating the powder that he could show them and that the powder was already examined by the authorities at the airport in Miami, where had boarded the plane and was allowed to travel with it. The police refused to examine the document. The claimant was arrested and charged for possession of cocaine. He pleaded not guilty on his first appearance in court.

Subsequently, the report from the forensic laboratory confirmed that the substance was not cocaine. By that time, the claimant had already spent three months in custody. Upon the submission of the report to the court, the prosecution offered no evidence against him. A verdict of 'not guilty' was then pronounced by the judge and he was discharged.

For the claimant to succeed, the law requires proof of certain fundamental facts. These are: there was a charge brought against him for a criminal offence; he was acquitted of the charge or otherwise it ended in his favour; the charge was commenced without reasonable and probable cause; and the charged was actuated by malice.

It would not be difficult for the claimant to prove that there was a charge instituted against him by the police, which means that the law was set in motion against him. The laying of the information that went before the court and to which he pleaded not guilty on the first occasion would have marked the commencement of the prosecution.




The second requirement is that there was an acquittal or that there was a withdrawal of the charge. This would have been satisfied when the prosecution offered no evidence in the matter.

The third element that would have to be satisfied is that the police had no reasonable or probable cause to charge him for the offence. This is usually one of the most difficult to prove. An acceptable working definition of reasonable and probable cause is that it should be an honest belief in the guilt of the claimant, supported by reasonable grounds and assuming them to be true, that would cause any reasonable, prudent and cautions man, placed in similar position to the police, to conclude that the claimant was probably guilty of the crime charged. In other words, whether a reasonable man, having the same information as the police at the time, would have believed that the claimant was probably guilty of possession of cocaine.

A failure on the part of the police to fully investigate the facts surrounding the claimant's possession of the powder could be evidence used by him to establish the absence of reasonable or probable cause for his arrest.

Finally, the claimant must be able to prove that the charges were actuated out of malice. Malice in this context is wider than spite. Essentially, it involves wrong or improper motive on the part of the police who laid the charges against him, that is some other motive other than seeing that justice is done. This, too, can be a difficult element to prove.

If the claimant succeeds in establishing these ingredients of malicious prosecution, then the court would determine the amount of the compensation to be awarded to him for the action of the police.

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