Chapter 23 Guidance on answering the end-of-chapter problem questions

Misuse of process and public powers

Giovanni is unlikely to have committed a malicious prosecution. A first question would be who has actually brought the proceedings. In order to be liable, Giovanni would have had to be actively instrumental: Danby v Beardsley. In fact, it does appear that Giovanni considers this issue carefully (eg, conducting sting raids in order to obtain evidence), rather than simply relying upon what May-Lou has said. It appears that he has set the law into motion against Zane: Commissioner of Police v Copeland. These proceedings have been terminated in Zane’s favour. Next, Zane must be able to prove absence of reasonable and probable cause. This can be proven if there is a lack of subjective belief (although mere evidence of reasons for non-belief is not enough) or that a person of ordinary prudence and caution would not conclude, in the light of facts which he honestly believed, that the claimant was probably guilty of the offence. It is difficult for us to determine whether the latter test, in particular, could be satisfied. The question would be resolved by looking at the evidence that Giovanni has for believing in Zane’s guilt (which includes Mary-Lou’s statements). However, the greater hurdle will be in proving malice – which means bringing the action for a reason other than the pursuit of justice: Stevens v Midland Counties Railway. On the facts, there is no evidence of this – certainly there is no evidence of the kind found in prior successful cases. In order to be successful, Zane would have to prove damage as well. Where malice is difficult to prove in this tort, it would be even more difficult to prove in trying to bring an action for misfeasance in a public office –  which requires proof of intention to harm or subjective recklessness as to the causation of harm: see Southwark LBC v Dennett.