Compensation of the Innocent
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb00726.x |
| Published date | 01 September 1963 |
| Author | G. H. L. Fridman |
| Date | 01 September 1963 |
THE
MODERN
LAW
REVIEW
~~
Volume
26
September
1963
No.
5
COMPENSATION OF
THE
INNOCENT
THE
growth of police forces and the steady rise in the
importance
of
police action in respect of the detection of crimes and the
capture and prosecution of offenders have made less significant
the role
of
private individuals in such matters. Participation by
private persons in the administration and enforcement of the
criminal law, however, has left its mark upon the civil as well
as the criminal law,
in
the form of remedies for the abuse
of
certain powers.' The problem in connection with those remedies
has been that of balancing one purpose to
be
served by the law
against another.
On
the one hand
it
was, and still is, necessary
to
protect the innocent from
wrongful
arrest
or
process.
On
the
other hand
it
was, and possibly still
is,
imperative, despite the
attenuation of the importance of the role
of
private individuals,
not to impede efforts to bring undoubted criminals to
justice,
by arresting, prosecuting, and convicting them.2 Various factors
are relevant to the determination of this problem.
1.
MaLZcE
I
have elsewhere discussed at length the meanings attributed by
the law to this expression and the problems its ambiguity and
vagueness have engendered.3
In
the present context
it
is
only
relevant to discuss how far malice, in the sense
of
spite,
ill-will
or
improper motive,
is
essential in the formulation of the conditions
of
liability
for
false imprisonment, malicious prosecution,
or
some
other tortious wrongdoing connected with the criminal
process.
1
See the recent case
of
Marn'nan v.
Vibart
[1962]
1
All
E.R.
869;
[1962]
3
All
E.R.
380
(discussed
below),
for
an
attempt
to
widen
the
scope
of
such
remedies.
2
Cf.
the
remarks
of
Lord
Devlin
in
Glinski
v.
McZcer
119621
1
All
E.R. 696
at
p.
721
as
to the situation
160
years
ago.
8
Fridman,
'I
Malice
in
the
Law
of
Torts
"
(1958)
21
M.L.R.
484.
VOL
26
481
17
482
THE
MODERN
LAW REVIEW
VOL
26
(a)
False Imprisonment
or
Arrest
The cases
on
false imprisonment do not in express terms suggest
that malice is relevant to liability. Everything would seem to
turn upon whether the arrester had reasonable cause for effecting
the arrest.
In
1838,
in the case of
Allen
v.
JVrightY4
it was stated
that the two questions to
be
asked in a case of false imprisonment
brought
against
a private individual were: first, whether a felony
had been committed, and secondly, whether any reasonable person,
acting
without
passion
or
prejudice,
would have fairly suspected
the plaintiff of being the
person
who committed the felony con-
cerned.
This
formulation of the law indicates that the test is an
objective one, based upon the conduct
of
a reasonable man in
the situation of the defendant, and not of a man moved by
malicioue feelings towards the plaintiff.
A
century later, in
JlcArdle
V.
EganY5
Lord Wright was discussing whether a police-
mau who
arrested
a
man for committing a particular crime would
be
able successfully to plead that he had reasonable cause for
such
amst
if
he
could
prove that he relied upon the previous
guilt
of
the
person
arrested
of crimes similar to the one in respect
of
which the
false
arrest was made. The defensive effect of
such reliance was very much doubted by the learned judge.
Indeed
it
could
be
argued that to charge a man with a crime
because
he had previously committed similar crimes might be
very
good evidence of a lack of reasonable cause for an arrest.
Admittedly,
it
is not necessary, in order
to
defend an action for
false arrest,
to
prove that the arrester had proof of the
guilt
of
the
person
arrested,
merely that there were reasonable grounds
for suspecting
his
guilt':
admittedly, too, evidence of previous
convictions for the same offence, while possibly not admissible to
prove
guilt
of
the particular offence concerned, might be relevant
to
a decision whether
to
arrest
the man with such previous con-
victions. Nonetheless,
to
arrest a man
on
such grounds might
show that the arrest was made, for example, out of preconceived
dislike of the man because
of
his previous convictions, and not
out of a genuine belief in his guilt of the crime charged, or,
again
for
example,
becam
to
suspect
such a man of the crime
was
an
easy
and tempting line of action in the absence of any
other indications as to the real criminal.7
In
the one instance
4
(l838)
8
c.
h
P.
622.
(m)
160
L.T.
412
8t
p.
413.
fi
Beckwith
v.
Philby
(1827)
6
B.
&
C.
635.
In
respect
of
breaches
of
the
ace,
see
Timothy
v.
Simpaon
(1835) 1
C.M.
&
R.
757;
R.
v.
Light
(1857)
g.
dc
B.
B2.
7
This,
however, should not be over-emphasised, becsuse, in many cases, the
police might
well
arrest
s
man
on
the strength
of
his
previous convictions,
which lead them
to
suspect
his
guilt
of
the crime, and then utilise the
oppo*mity of the arrest
to
dimver further evidence supporting their
suspmionr. The evidence of previous convictions
as
a
consideration in the
To continue reading
Request your trial