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37.A favourable termination of the prosecution may arise not only from an acquittal at trial or a conviction being quashed on appeal, but also where proceedings are discontinued.  It is unclear whether a stay of proceedings – for example on the basis that they amount to an abuse of process – constitutes a favourable termination for this purpose.

38.The classic definition of reasonable and probable cause is:

“an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.”

In Glinski v McIver72 the House of Lords held that a claimant has to prove one of two things in order to establish that there was a lack of reasonable and probable cause, namely:

a.the prosecutor did not believe in the guilt of the claimant73; or

b.a person of ordinary prudence and caution would not conclude in the light of the facts honestly believed at the time that the claimant was probably guilty of the relevant offence.

The first element involves a subjective evaluation of the state of the prosecutor’s mind at the time of the prosecution.  Showing that the prosecutor relied on evidence that he knew to be fabricated or otherwise untrue suffices to show this element.  However, a lack of honest belief cannot be inferred simply from a malicious motive in bringing the prosecution74.  The second element entails an objective assessment of whether there was a sufficient basis for the prosecution on the information known at the time.  It has been said that an ordinarily prudent prosecutor would: take reasonable steps to ascertain the true state of the case; consider the matter on the basis of admissible evidence only; and in all but plain case obtain legal advice as to whether the prosecution is justified and act upon that

72 [1962] AC 726.

73 In the sense that they did not believe in the charge brought or in the prosecution case put forward (see the speeches of Viscount Simmonds, Lord Radcliffe and Lord Denning).

74 Glinski v McIver (above).

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