hello and welcome back to our tutorial sessions on the law of thought this is our fifth episode episode 5 before we deal with this episode a quick recap of episode 4 under our previous episode episode 4 we treated false imprisonment where we established that to be successful you need to prove the act of imprisonment the unjustifiable elements of that imprisonment and the directness of the act of the person who caused the imprisonment we also discussed the principle under awareness of imprisonment in today's episode we are going to identify the elements of the thought of malicious persecution and highlight the major principles you would need to explain when tackling this particular area of thought so to begin with what is malicious prosecution a malicious prosecution is a thought or civil wrong which enables a person who is subject of a groundless or unjustified Court proceedings to seek a civil claim for damages against their prosecutor what must a person prove to be successful in an action of malicious prosecution auk crab CJ as he then was in the case of Musa and another versus limo Wana and another and the decision of mil SoDo as he then was in the case of soda alas SRA and others versus obing and others to succeed the plaintiff must prove five elements namely that one the defendants initiated a persecution against him two that the criminal proceedings terminated in the plaintiff's favor and three that the defendant undertook or instigated or procured the prosecution with no reasonable or probable cause and four that the defendant acted maliciously and five that the plaintiff suffered damage as a result of the prosecution failure to prove any of these essential ingredients will be fatal to the plaintiff's case as held in sodra versus oring mentioned earlier let's now see how to establish these five elements using the applicable principles now to element one that the defendant initiated a prosecution against the plaintiff in sodra versus ofing Ms Oni JSC stated that the requirement is therefore that the plaintiff must establish that the defendant actively instigated the prosecution or was instrumental in getting the proceedings going if the defendant merely reported the matter to the police who do their own investigations before charging the plaintiff the defendant is not liable Lindley J in Danby versus beetley said if you KN only make a false complaint which results in a being prosecuted the first requirement is satisfied however to go with the police and merely pointing a person out is not a basis for establishing the first element you can see in chroma versus fley for more on this point nonetheless where the informant gives false information or tells lies to obtain the prosecution then that could constitute a basis for proving the first element as held by the House of Lords in Martin versus Watson lastly crab JSC in yua versus bating made it known that this element is the first duty of the plaintiff in an action for malicious prosecution let's look at the second element that the criminal proceedings terminated in the plaintiff's favor in Bas B versus Matthews matang J said it is essential to show that the proceedings alleged to be instituted maliciously and without probable cause has terminated in favor of the plaintiff if from its nature it be capable of such termination B J also says showing that the prosecution terminated in the plaintiff's favor applies even to convictions for which there was no appeal termination in his favor also means that the plaintiff was not convicted of the particular offense preferred against him so if he is convicted of Esser offense proceedings have terminated in his favor as it were for instance convicted for man slaughter instead of murder or dishonestly receiving instead of stealing you can see Boer versus holder for more on this examples of persecutions that could be terminated in a plaintiff's favor could include the acquittal of the plaintiff on merits of the case termination where conviction is quashed for technical reasons such as misdirection to the jury by the trial judge and discontinuance of prosecution by the prosecutor before the verdict let's move to element three that the defendant undertook or instigated or procured the prosecution with no reasonable or probable cause the court in basb versus Matthews already mentioned defined reasonable and probable cause in the following words an honest belief in the guilt of the accused based upon 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 in relating Hawkins J in Hicks versus 4 cere JSC in s versus obing also said reasonable and probable cause means an honest belief in the guilt of the accused based upon a full conviction founded upon 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 accused to the conclusion that the person charged was probably guilty of the crime imputed it must be noted that there is a contrast with Hawking J's position with Lord Den's part disagreement in glinsky versus Mark Eva also where the defendant honestly believes in the guilt of the plaintiff owing to loss of memory it does not amount to one of reasonable or probable cause reasonable and probable cause is proven in two ways either a the prosecutor whether the defendant himself or herself or a surrogate in law had no honors belief in the plaintiff's probable guilt when he prosecuted him or B the prosecutor had such belief that the facts would not lead an ordinarily prudent or cautious person to the conclusion that is the plaintiff was rash in his judgment accordingly Lord atking also says the proof of reasonableness and probable cause is a question of Law and not a question of fact let's move on to the fourth element heing that is that the defendant acted maliciously M sooi JSC in sodra versus soing said where a genuine complaint is honestly and Bona laid the accuser is not considered or deemed to be the prosecutor or the person who had set in law in force so as to render him answerable for malicious prosecution note here that the key words to look out for in his decision is the genuine of the complaint laid honestly in good Faith accordingly Lord delin in glinsky versus Maka says malice relates to the prosecutor's motive other than that of Simply instituting prosecution for the purpose of bringing a person to Justice in 2011 the case of HTH versus Chief Constable of gwent Con Ed J in differentiating reasonable and probable cause from proof of malice said the question of reasonable or probable cause itself breaks down into two issues which have to be considered in the light of the evidence before the court the first is generally described as being a subjective question namely whether the prosecutor had no honest belief in the relevant charge the second is that the objective question of whether the circumstances were such that they would lead an ordinary imprudent man to believe in the charge sometimes it is possible to infer the absence of an honest belief from the lack of reasonable and probable cause but not the other way for malice malice cannot of itself lead to an inference that reasonable and probable cause was lacking thus although malice may be inferred from want of reasonable cause want of reasonable cause does not necessarily follow from malice and as gleon CJ said in AV New South Wales malice is a positive requirement to be proven whereas absence of reasonable operable cause is a negative requirement explaining what is malice he further said it suffices to describe malice as acting for purposes other than a proper purpose of instituting criminal proceedings here we are to note that it is not that straightforward and simple to prove malice moving on to the last element that requires that the plaintiff suffered damage as a result of the persecution being an AC on the case the plaintiff must prove damaged as a result of the prosecution to succeed chief justice H laid down the head of damage recognized under this thought in the case of sail versus Roberts in the following words he stated there are three sorts of Damages any one of which is sufficient to support the action for malicious prosecution a damage to his name that is necessarily and naturally affects the fair Fame of the person if he is accused of scandalous matter in B damage of his person where he could lose his life or Liberty that is if he is for example imprisoned and see damage to his property if he is made to incure charges and expenses for his defense crab SI in Musa versus Lio Wana whereof one was accused be scandalous or damaged to one's person as where one was put in danger to lose one's life or Liberty or damage to property as which one was accused he concluded as follows the standard should be that whether a reasonable man hearing of the proceedings brought against the plaintiff would from The View that they were a damaging reflection on his fair theme of the plaintiff this brings us to the end of our fifth episode we hope you learned and will join us for our next episode which will be on the rule in wikinson versus D like comment and share this particular episode subscribe to this particular Channel and tell the people in your circle about what is going on on this channel thank you very much for your attention and on to the next episode