Issue: Kevin, a clerk is leaving the office one evening with a parcel of personal effects which he collected from his cousin earlier that day. Don, the security guard, demands a search and upon examining the contexts of Kevin’s bag, accuses him of stealing. He calls the policeman who despite Kevin’s protest, takes him to the police station where he is held overnight and released next morning. They charged against him for theft is subsequently dismissed by the magistrate.
Members: Sarah David-Longe
The legal issue in this case is whether Kevin can succeed in a claim of (1) malicious prosecution and (2) false imprisonment against Don, the security guard and against the policeman.
Malicious prosecution occurs where D maliciously or without probable cause, initiates a criminal prosecution against P which terminates in his favour and which results in damage to his reputation, property or person. Per Wooding CJ in WILLS V VOISIN 1963 stated:
“The law was set in motion against him on a charge of a criminal offence.
He was acquitted of the charge or it was determined in his favour
The prosecutor set the law in motion without reasonable cause
In so setting the law in motion, the prosecutor was actuated by malice.”
As a result, four essential requirements were created and MUST be proven in order to determine if malicious prosecution would succeed.
- P- PROBABLE CAUSE ABSENT
- A- ACTUATED BY MALICE
- I- INSTITUTION OF PROSECUTION
- D –DETERMINED IN THE PLAINTIFF’S FAVOUR
In assessing the claim against Don, we must first examine the absence of a reasonable or probable cause. The test for determining whether a reasonable or probable cause exists is set out in GLINSKI V Mc IVER where an objective and subjective test were created. For this case, we must use the objective test whereby we must determine “Whether a reasonable man furnished with the facts which D knew at the time he initiated prosecution, would have believed P was guilty of the crime.” From the facts of the issue given, we do not believe any reasonable man would perceive Kevin as a thief because he should be aware of what is ethical and appropriate conduct required by the office and he had a right to a fair hearing to explain where he got the parcel from to Don before being falsely accused. Additionally, no reasonable man would believe Kevin was guilty of this crime unless some evidence could be shown e.g. someone in the workplace reported missing personal effects or the parcel was addressed to a colleague of the workplace and he was in possession of it.
The case JANGO VS GOMEZ can be cited whereby, where a senior clerk found a parcel behind a container while leaving the premises on his way home and took to the customs guard. He was accused of stealing the parcel and was arrested. It was held that the security guard had no reasonable grounds for suspecting that the clerk committed the act. Similarly in this case, the parcel was filled with personal effects which would have been for Kevin’s personal grooming; the security guard had no reasonable grounds for suspecting the act of theft.
Likewise, for the policeman, the subjective test of GLINSKI V Mc IVER must be used. This states “whether D himself truly believed that P was guilty.” From the facts, we would believe that the policeman truly believed that Kevin was guilty because of his hasty arrest towards Kevin.
However, IRISH V BARRY stated:
“The right or power to arrest without warrant ought never to be lightly used. Those who possess it ought, before exercising it, be observant, receptive, and open-minded, not hasty in jumping to conclusions on inadequate grounds.”
In applying this principle, the arrest of the policeman was unlawful because he had no reasonable or probable cause to suspect that Kevin had stolen the parcel.
We must then examine if this was actuated by malice. Malice is not limited to spite. It is any wrong or improper motive. Within the previous case cited (Jango vs Gomez) the security guards acted on a wrong and improper motive. This is also seen in the issue given to us by the actions of Don. Wooding CJ asserted in the case IRISH V BARRY that: