malicious prosecution with malice

HEADNOTE:


A private prosecutor not having the privilege that a police constable possesses of imprisoning a person on mere suspicion that a felony has been committed, false imprisonment results if the person is detained by the private prosecutor. Arrest, however, by a police constable which follows the placing of the case in his hands to do his duty is not an arrest by a private prosecutor, but is an arrest by the police constable.



The fact that a person is not actually aware that he is being imprisoned does not amount to evidence that he is not imprisoned, it being possible for a person to be imprisoned in law without his being conscious of the fact and appreciating the position in which he is placed, laying hands upon the person of the party imprisoned not being essential.



The definition of “Imprisonment” in “Termes de la Ley” is an adequate statement of what is meant by that expression.



Bird v Jones (1845, 7 QB 742) and Warner v Riddiford (1858) 4 CBNS 180, approved.



Absence of reasonable and probable cause for instituting a prosecution against a person affords evidence from which it may be inferred that there was a want of honest belief on the part of the prosecutor in the guilt of the person accused. But absence of reasonable and probable cause alone will not suffice. There must be evidence of some further indirect motive.



The depositions of witnesses taken in pursuance of s 17 of the Indictable Offences Act 1848 in the form set forth in the schedule to that Act should appear in chronological order, a record of the depositions being kept day by day with a fresh caption at the beginning of each day’s proceedings showing what witnesses have been examined on that day, and what part of their evidence has been given on that day.



Observations of Duke, LJ, as to the function of a judge at Nisi Prius.



Observations of Atkin, LJ, concerning the burden cast upon judges in trying civil actions in the High Court of Justice in making the only official record of the whole of the evidence which is adduced before them by taking a note thereof in long hand