Malice in Malicious Prosecution and Malfeasance in a Public Office: A Progression or the End of the Tort?

Abstract

It could easily be thought that malicious prosecution and misfeasance in a public office are important in modern society. A Crown prosecutor or Attorney-General could be found liable in malicious prosecution and most public officials could be found liable in misfeasance in a public office, thus being exposed to having to pay large damages and the public scrutiny of a tort law action. However, the Courts have aimed to balance the inherent public policy concerns by requiring that the claimant must prove that the Crown prosecutor or public official was acting with malice that the use of the prosecutorial office or public office was out of spite or for an improper purpose, such as financial gain. The requirement of malice has raised the issue of how relevant these torts are in modern society. Compensation and deterrence, the core functions of tort law, can be used to examine this question. The issue is whether malicious prosecution and misfeasance in a public office are needed to provide a compensation or deterrent function, or if they are even able to.