Contract Law

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‘The circumstances showing that an arrest was without reasonable or probable cause may be sufficient to establish malice.”

In applying this principle, we can strongly bring forth the argument that the actions of the Don towards Kevin was wrong, improper and had no reasonable or probable cause, therefore malice is established.

Contrastingly, the actions of the policeman can be justified in SIBBONS V SANDY whereby the police did believe that S stole the oranges from the accusation put forth by the vendors. They did not act on a wrong motive to establish malice. In this issue, the policeman did believe that Kevin stole the parcel from the accusation of Don so he was not acting on a wrong motive to establish malice.

The institution of prosecution states that P must show that D instituted prosecution against him or he was instrumental in setting the law in motion. The case MARTIN V WATSON can be stated whereby D falsely reported to the police that P indecently exposed himself to her causing him to be prosecuted. It was held that D is liable for the institution of the prosecution. Applying to the issue at hand, as a result of the security guard failing to investigate the matter in a procedural manner towards Kevin about his suspicion, the accusation he created was false and he instituted prosecution against him.

In the case of the policeman, he was instrumental in setting the law in motion against P.

The termination of the prosecution in the plaintiff’s favour states that if a person is convicted of a criminal charge, he cannot sue the prosecutor even though he can prove his innocence or that the charge was unfounded (senseless). In such an event, Don will be able to be sued because the court was ruled in the favour of Kevin and he can prove his innocence. Don is not the prosecutor; he is the one who instituted prosecution against Kevin.

However in the case of the policeman, he cannot be sued even if Kevin can prove his innocence or that the charge was unfounded.

We can therefore state that all four requirements are present and Don can be held liable for malicious prosecution.

In assessing malicious prosecution against the policeman, the legal principle states that failure to establish any one or more of these requirements will result in P losing his action for malicious prosecution. In this case, the policeman only suffices two of the requirements so this is not actionable. We must then determine if the policeman will be liable for false imprisonment.