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41.ECHR rights do not appear to expand the circumstances in which a claimant can succeed in an action akin to one for malicious prosecution.  As discussed above, article 5(5) provides that everyone who has been detained in contravention of article 5 shall have an enforceable right to compensation.  However, a period of detention is regarded as lawful for these purposes if carried out pursuant to a court order, made within the court’s jurisdiction, even if that order was subsequently quashed on appeal79.   Accordingly, where a conviction is quashed on appeal after the appellant has spent time in custody, any available remedies will normally arise in relation to an action for malicious prosecution or misfeasance in a public office, rather than under the Convention.  The possibility of claiming compensation from the Home Office in such circumstances is looked at separately below.

Elements of the Tort of Malicious Process

42.Malicious process is a civil wrong, separate from malicious prosecution, which entails instituting a legal process short of prosecution without reasonable and probable cause and with malice80. The two most common examples are applications for arrest warrants and search warrants81.    In relation to such warrants there are four ingredients of the tort that the claimant must establish, namely that:

a)a successful application for the warrant was made;

b)there was a lack of reasonable and probable cause for making the application;

c)it was made maliciously; and

d)there was resultant damage82.

43.Proving a lack of reasonable and probable cause and proving malice have been described under the preceding section on malicious prosecution.  In relation to proceedings that the claimant has no right to attend, such as applications for warrants, it need not be shown that they terminated in his favour.  However, if the form of process under challenge involves the attendance of both parties, such as a

79 Benham v UK (1996) 22 EHRR 293.

80 Roy v Prior [1970] 2 All ER 729 HL.

81 For other instances of malicious process see Clayton & Tomlinson, Civil Actions Against the Police (3rd ed) at paras 8-083 – 8-089.

82 Keegan v Chief Constable of Merseyside Police (above).

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