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39.A prosecution is brought maliciously if the main motive of the prosecutor is other than the desire to bring the claimant to justice76.  Malice may be inferred if it is shown that the prosecutor did not honestly believe in the charge brought77.  In the malicious process case of Keegan v Chief Constable of Merseyside Police78 officers sought a search warrant on the basis of slender evidence, having failed to check that their suspects had moved on and that the innocent claimants were now in residence at the relevant address.  The claimants argued by analogy with case law concerning the tort of misfeasance in a public office that ‘malice’ now bore an expanded meaning and included circumstances where officers acted with reckless indifference to the legality of their conduct.  The Court of Appeal rejected this argument, re-affirming that malice required proof of an improper purpose.  They held there was no evidence of malice on the facts as, even if they were careless, officers had obtained and executed the search warrant because they were genuinely seeking to recover stolen monies, a perfectly proper purpose.

Quantification of Non-Pecuniary Damages

40.In Thompson & Hsu (above), the Court gave the following guidance in relation to basic damages for a malicious prosecution:

“(6) In the case of malicious prosecution the figure should start at about £2,000 and for prosecution continuing for as long as two years, the case being taken to the Crown Court, an award of about £10,000 could be appropriate. If a malicious prosecution results in a conviction which is only set aside on an appeal this will justify a larger award to reflect the longer period during which the plaintiff has been in peril and has been caused distress.

The guidance given as to aggravated and exemplary damages set out above in relation to false imprisonment is equally applicable to claims for malicious prosecution.

European Convention on Human Rights

75 Abbott v Refuge Assurance Co [1962] 1 QB 432; Coudrat v Commissioners of HM Revenue and Customs [2005] EWCA Civ 616.

76 Stevens v Midland Counties Railway (1854) 10 Exch 352.

77 Brown v Hawkes [1891] 2 QB 718 at 722.

78 [2003] 1 WLR 2187.

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