Introduction
The law of tort seeks to protect individuals from wrongful interference. Within this broad remit, the torts of malicious prosecution and false imprisonment serve to safeguard two fundamental, yet distinct, interests: the right to be free from groundless litigation and the right to personal liberty. While both torts are categorised as intentional torts against the person, they operate on different principles and address different forms of harm. Malicious prosecution is concerned with the abuse of the legal system itself, where an individual improperly sets the criminal law in motion against another. In contrast, false imprisonment is concerned with the direct and unlawful deprivation of a person's freedom of movement. This essay will first outline the essential requirements that a claimant must satisfy to succeed in a claim for malicious prosecution. It will then provide an overview of the tort of false imprisonment, before undertaking a comparison to highlight the significant differences in their legal elements, burden of proof, and underlying policy objectives.
The Essential Requirements of Malicious Prosecution
The tort of malicious prosecution is notoriously difficult to establish. The courts have historically set a high threshold for claimants, reflecting a public policy concern that an easily accessible tort could discourage the reporting of suspected crimes and unduly hamper the work of law enforcement (Horsey and Rackley, 2021). To succeed, a claimant must prove four distinct elements, as summarised in cases such as Martin v Watson [1996] AC 74.
1. Prosecution by the Defendant
The claimant must first prove that the defendant initiated or continued a prosecution against them. This does not mean the defendant must be the official prosecutor, such as the Crown Prosecution Service (CPS). A private individual can be held liable if they were ‘actively instrumental’ in setting the law in motion (Martin v Watson). A key distinction is drawn between merely providing information to the police, however maliciously, and actively deceiving or influencing the authorities to prosecute. As Lord Keith noted in Martin v Watson, where an individual makes a false complaint to the police and continues to provide false evidence, it can be inferred that they were responsible for the subsequent prosecution, even though the formal decision to prosecute was taken by the CPS. Therefore, the defendant must be shown to have played a significant and causative role in the proceedings being brought.
2. Favourable Termination for the Claimant
The second requirement is that the prosecution must have been resolved in the claimant’s favour. The clearest example of this is an acquittal after trial. However, the requirement is satisfied whenever the outcome is inconsistent with the claimant's guilt. This includes a conviction being overturned on appeal, or the prosecution being formally discontinued by the CPS, as was the case in Wiltshire v DPP [2019] EWHC 501 (QB). The termination must relate to the merits of the case, indicating the innocence of the accused, rather than a dismissal on a procedural technicality that does not address the question of guilt.
3. Absence of Reasonable and Probable Cause
This is often the most significant hurdle for the claimant. They must prove that the defendant, at the time of initiating the prosecution, lacked reasonable and probable cause for doing so. The classic test was established in Hicks v Faulkner (1878) 8 QBD 167, which breaks this element into two parts: a subjective and an objective test. First, the defendant must have had an honest, subjective belief in the claimant's guilt. If the defendant knew the claimant was innocent or knew the evidence was false, this part of the test fails. Second, this subjective belief must have been based on objectively reasonable grounds. That is, would a reasonable person, in possession of the same information as the defendant, have believed that there was a proper case to lay before the court? Both parts must be satisfied for the defendant to have had reasonable and probable cause. The claimant must prove a negative: that the defendant lacked this cause for the prosecution.
4. Malice
Finally, the claimant must prove that the defendant acted with malice. In the context of malicious prosecution, 'malice' has a specific legal meaning that is wider than spite or ill-will. Malice means that the defendant was motivated by an improper purpose, meaning any purpose other than bringing a person to justice. As established in Brown v Hawkes [1891] 2 QB 718, the motive must be something other than a desire to see justice done. Examples of improper purposes include bringing a prosecution to extort money, to damage a business rival, or to silence a critic. While the absence of reasonable and probable cause can be evidence from which malice might be inferred, it is not conclusive; the claimant must separately prove the existence of an improper motive.
The Tort of False Imprisonment
False imprisonment is defined as the unlawful imposition of a total restraint on another's freedom of movement (Collins v Wilcock [1984] 1 WLR 1172). It protects a person's fundamental right to liberty. Unlike malicious prosecution, its requirements are relatively straightforward. The claimant needs to establish only two things: the fact of imprisonment and that it was total.
The restraint must be complete. In Bird v Jones (1845) 7 QB 742, the claimant was prevented from walking on a particular part of a public highway but was free to go by another route. The court held that this did not constitute false imprisonment, as the restraint was not total; an obstruction in one direction is not sufficient. The claimant does not need to be aware of the imprisonment at the time it occurs (Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44).
Crucially, false imprisonment is a tort of strict liability. This means the claimant does not need to prove that the defendant acted with malice or without reasonable cause. All the claimant must do is show they were detained. The burden of proof then shifts to the defendant to demonstrate that the detention was lawful (R v Governor of Brockhill Prison, ex p Evans (No 2) [2001] 2 AC 19). Lawful justification may include, for example, a valid arrest under powers granted by the Police and Criminal Evidence Act 1984. If the defendant cannot prove lawful authority for the detention, liability will be established.
Comparison between Malicious Prosecution and False Imprisonment
While both torts protect individuals from abuses of power, a comparison reveals fundamental distinctions in their nature, scope, and operation.
First, the interest protected is different. Malicious prosecution protects an individual's interest in not being subjected to a groundless and malicious use of the legal system. The harm includes damage to reputation, financial loss from defending the case, and the stress of the proceedings. By contrast, false imprisonment protects the interest in physical liberty and freedom of movement. The harm is the detention itself.
Second, the fault requirement is a primary point of divergence. Malicious prosecution has a high fault threshold, requiring the claimant to prove both the absence of reasonable cause and the presence of malice. This makes it a fault-based tort where the defendant's state of mind is central. False imprisonment, on the other hand, is a tort of strict liability. The defendant’s intention or motive is irrelevant to the question of liability. As long as the defendant intentionally committed the act that resulted in the claimant’s confinement, they are liable unless they can show lawful justification.
Third, this difference in fault leads to a critical distinction in the burden of proof. In a malicious prosecution claim, the claimant bears the onerous task of proving all four elements of the tort. In a false imprisonment claim, the claimant only needs to establish the fact of their total restraint. The burden then shifts to the defendant to prove the detention was lawful. This procedural difference makes false imprisonment a significantly more claimant-friendly tort.
Finally, the role of legal authority is inverted between the two torts. False imprisonment typically occurs where there is a lack of legal authority for the detention. An act of imprisonment carried out under a valid court order or warrant cannot constitute false imprisonment, even if that order was obtained through malice. In such a scenario, where the legal process itself has been subverted, the correct cause of action is malicious prosecution. Malicious prosecution is therefore engaged when the machinery of justice has been used as a tool of oppression, whereas false imprisonment arises from a direct act of detention outside of, or in excess of, lawful authority.
Conclusion
In conclusion, malicious prosecution and false imprisonment are distinct torts that protect different aspects of an individual’s rights. Malicious prosecution is a remedy for the abuse of the judicial process, designed to hold accountable those who maliciously set the criminal law in motion without proper cause. Its four demanding requirements—prosecution, favourable termination, absence of reasonable cause, and malice—reflect a careful policy balance to avoid deterring the good-faith reporting of crime. The heavy burden placed upon the claimant makes it a difficult action to win.
In contrast, false imprisonment provides a more direct and robust protection for the fundamental right to liberty. By requiring only proof of total restraint and placing the burden of justification on the defendant, the law prioritises freedom of movement. Its strict liability nature means that an individual’s liberty cannot be taken away without lawful authority, regardless of the detainer's motive. While both torts address wrongful acts that can cause profound distress, they do so through different legal frameworks, with malicious prosecution targeting the corruption of legal process and false imprisonment providing a direct shield against unlawful physical confinement.
References
Bird v Jones (1845) 7 QB 742
Brown v Hawkes [1891] 2 QB 718
Collins v Wilcock [1984] 1 WLR 1172
Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17
Hicks v Faulkner (1878) 8 QBD 167
Horsey, K. and Rackley, E. (2021) Tort Law. 7th edn. Oxford University Press.
Martin v Watson [1996] AC 74
Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44
R v Governor of Brockhill Prison, ex p Evans (No 2) [2001] 2 AC 19
Wiltshire v DPP [2019] EWHC 501 (QB)
