Malicious Prosecution Law in the UK

Whether you have been maliciously prosecuted or have had allegations of malicious prosecution brought against you, it’s vital to enlist legal assistance as soon as possible.

In this guide, we’ll take a look at what malicious prosecution law looks like in the UK and how to prove your case.

What Is Malicious Prosecution Law?

Malicious prosecution refers to the police (or any other prosecuting authority) bringing a charge against an individual with malice, or pursuing a prosecution with malicious intent.

This is not the same as wrongful arrest, false imprisonment or being falsely accused of a crime, although these may occur simultaneously. The difference between a claim for false imprisonment and a claim for malicious prosecution is that the latter requires bad faith or malfeasance by police and/or the prosecuting authority. Mistakes by officers may lead to a claim for false imprisonment in the context of wrongful arrest but in the absence of bad faith would not lead to a successful claim for malicious prosecution.

Malicious prosecution is a tort, which means that it is a wrong that has been committed outside of any contract or agreement. There is an expectation that the public can place their trust in authority figures such as police officers or prosecutors to act in a bona-fide manner.

Proving Malicious Prosecution

When it comes to proving malicious prosecution, as opposed to a wrongful accusation, the claimant must meet five criteria to succeed in any claim:

  1. The claimant must have been prosecuted by the defendant.

A police officer will be considered a prosecutor if:

  • They alone know the facts of the alleged offence
  • They deliberately misstated the facts to the person making the decision to lay the charge
  • They intend that there should be a prosecution
  • The person who lays the charge could not have formed an independent judgment as to whether a charge should be laid.
  1. The case must have been resolved in the claimant’s favour.

A malicious prosecution claim cannot be brought whilst proceedings are ongoing – the case must have concluded. If the defendant has been convicted, they will not be able to proceed with a claim for malicious prosecution. However, if they have been acquitted, or if the charges have been dropped, they can.

  1. The proceedings must have been brought against a claimant without reasonable grounds or probable cause.

‘Reasonable grounds’ is the term used to indicate that before any action was taken, the officer or officers held the belief that they had a reason to suspect a crime had been carried out or was going to be carried out.

  1. The officer or officers’ actions and intent must have been malicious.

This is a high hurdle and the most difficult part of proving malicious prosecution, as the claimant must establish that the prosecution was malicious and an intentional misuse of the court process rather than simply a mistaken accusation or conducted negligently.

  1. The claimant must have suffered some damage.

In the vast majority of cases, this will be readily apparent. Damage has a loose meaning and would include, for instance, simply being accused of an imprisonable offence.

Malicious Prosecution Examples

Some of the ways malicious prosecution might be apparent in relation to the police include:

  • Creating a false accusation against someone or fabricating evidence to their detriment.
  • Exaggerating or fabricating their account of events e.g. accusing the individual of assault to justify their own use of excessive force.
  • Intentionally not undertaking a full and proper investigation and/or suppressing evidence that they were obliged to disclose.

Malicious Prosecution in Civil Proceedings

In 2016, following the landmark case of Willers v Joyce, the Supreme Court confirmed the tort of malicious prosecution was not confined to criminal proceedings but could also apply to civil proceedings.  Malicious prosecution claims brought in relation to civil proceedings will be considered in the same way they are in relation to criminal proceedings but, in practice, it will likely be more difficult to establish malice in these claims.

Malicious Prosecution Law with St Pauls Chambers

Damages for claimants who have faced a malicious prosecution can include compensation for time spent in custody, loss of earnings, reputational damage, and any other foreseeable consequences. Successful claims also typically result in awards for aggravated and exemplary damages.

Finding quality legal assistance is key to pursuing a successful claim for malicious prosecution. At St Pauls Chambers, members of chambers are experts in all matters of police law, including actions against the police and police discipline. Our team is led by Sam Green KC who has extensive experience representing clients in cases of malicious prosecution. If you or your client are bringing or defending a malicious prosecution claim, please do not hesitate to contact us today.

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