Can a complaint to the police be malicious prosecution?

Posted on 14th September 2020

Claims of malicious prosecution is a developing area of law. New cases appear to be on the increase.

Making life difficult for an ex-partner/spouse by reporting them to the police or some other investigating authority might seem appealing whether for revenge or because of upset about the relationship breakdown. But the consequences and fall-out for that ex could have far reaching effects on their livelihoods, family relationships and personal and professional reputations. Complainants should, of course, bear this in mind but also too of wasting police time by making false reports, which could back-fire with serious consequences.

Proving a malicious prosecution has taken place

But for the individual who suffered because of a malicious prosecution, the law is very clear about whether they can sue their complainant for compensation because of a malicious prosecution. A claimant suing a defendant must show:

  1. The law has been set in motion against them by their complainant on a criminal charge (or, now, through civil proceedings as well).
  2. That the prosecution ended in the claimant’s favour (for example, by acquittal in a criminal trial).
  3. The prosecution was without reasonable and probable cause.
  4. The prosecution was, indeed, malicious.

The recent case of CXZ v ZXC [2020] EWHC 1684 (QB), confirmed these four tests, which any claimant needs to prove that a prosecution against them has indeed been brought maliciously. The case also emphasised some of the difficulties in bringing a malicious prosecution claim: they are by no means easy to prove.

In this case the claimant could not prove the first test and the Judge found there’d been no prosecution against him. The claimant’s ex-wife had reported him to the police for what turned out to be a totally unfounded complaint that he had sexually abused their two children. It is emphasised that the ex-wife’s allegations were wholly untrue. Many people might think that such a complaint could have a ‘malicious’ angle to it. Indeed, the Judge fully recognised that the claimant had endured a stressful, lengthy police investigation and that it had understandably affected his life tremendously.

However, the police/CPS had not taken the criminal litigation further than a voluntary interview under caution. So after the police investigation concluded without the claimant being arrested, charged, tried, convicted or sentenced, the claimant sued his ex-wife for damages for malicious prosecution. But his claim failed because he had not technically been prosecuted – the law had not been set in motion against him by his ex-wife on a criminal charge.

Bringing a malicious prosecution claim

It’s vital that legal advice is sought at the earliest opportunity and that a potential claimant’s lawyers have full access to all the relevant documents from the relevant prosecuting authority – usually the police – so a claim can be assessed and the legal test applied. Securing early legal advice will avoid wasting time and money.

Our specialist Dispute Resolution Solicitors can assist with malicious prosecutions claims. If you require our advice, please call us on 0808 231 6369 or request a call back online at your convenience.

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