Malicious Prosecution — MCQs

All questions with answers and explanations

Read the full set here, or use the practice card above to test yourself one question at a time.

1. Which of the following is NOT one of the five essential elements of malicious prosecution?

   • Prosecution by the defendant
   • Favourable termination of the proceedings for the claimant
   • Absence of reasonable and probable cause
   • Proof that the defendant was later convicted of perjury (correct answer)

   Explanation. The five elements are: prosecution by the defendant, favourable termination, absence of reasonable and probable cause, malice, and damage — a separate perjury conviction is not required.

2. Does an acquittal, by itself, prove that the defendant lacked reasonable and probable cause?

   • Yes, acquittal is conclusive proof of malicious prosecution
   • No, the two are assessed separately, and a prosecutor may have reasonably believed in guilt at the time despite a later acquittal (correct answer)
   • Acquittal is irrelevant to any element of the tort
   • Only a conviction can support a malicious prosecution claim

   Explanation. Reasonable and probable cause is judged at the time the prosecution began; an acquittal on later evidence does not automatically mean the original belief in guilt was unreasonable.

3. "Malice" in the context of malicious prosecution means:

   • Personal hatred is the only form of malice recognised
   • Some purpose other than a genuine desire to bring an offender to justice, such as spite or business rivalry (correct answer)
   • The defendant must have committed perjury
   • Malice is irrelevant to this tort

   Explanation. Malice here means an improper purpose behind the prosecution — not necessarily personal hatred, but any motive other than genuinely seeking justice.

4. At what point in time is the presence of reasonable and probable cause assessed?

   • At the time of the final judgment
   • At the time the prosecution was launched, based on the evidence then available (correct answer)
   • Only after an appeal is decided
   • It is never actually assessed by courts

   Explanation. Reasonable and probable cause is judged based on the evidence and circumstances known at the time proceedings were initiated, not with hindsight.

5. A complainant had reasonable and probable cause to prosecute but acted out of spite. In a claim for malicious prosecution:

   • The claim succeeds, because spite is enough
   • The claim fails, because reasonable and probable cause existed (correct answer)
   • The claim succeeds, because malice can be inferred from spite alone
   • The claim fails only if the accused was convicted

   Explanation. Malice and lack of reasonable cause are separate essentials. Malice may be inferred from a complete lack of cause, but lack of cause cannot be inferred from malice alone. If there was reasonable cause, the tort fails even if the defendant acted with spite.