When Public Power Turns Predatory: Malicious Enforcement in UK Law
Executive summary
Public authorities in the United Kingdom exercise powers capable of destroying reputations, closing businesses and depriving individuals of liberty. Where those powers are exercised lawfully but harshly, the courts provide limited remedies. Where, however, they are exercised dishonestly, for improper purposes, or in knowing or reckless breach of legal limits, the law offers two narrow but constitutionally important causes of action: misfeasance in public office and malicious prosecution. These torts do not exist to punish error or incompetence. They exist to restrain deliberate abuse of state power. This article examines their legal foundations, the leading cases, and the formidable practical obstacles faced by anyone who seeks to invoke them.
Malicious enforcement, misfeasance and the abuse of state power
The modern British state governs not only through Parliament and the courts but through a dense web of enforcement bodies. Police forces, prosecutors, financial regulators, immigration authorities and professional regulators exercise coercive powers that reach deep into private life and commercial activity. They may compel the production of documents, seize property, suspend licences, initiate prosecutions and impose penalties that are economically or personally catastrophic. Those powers are necessary for the protection of the public. But they are also dangerous. History shows that enforcement bodies sometimes act to protect themselves, to justify earlier mistakes, to appease political pressure or to pursue institutional advantage. When that happens, the rule of law is tested.
Judicial review can set aside unlawful decisions, but it does not address the deliberate misuse of power that has already caused damage. Human rights claims can establish incompatibility with the European Convention, but they do not always confront the motive behind the abuse. The common law’s answer to that problem lies in two torts that operate as constitutional controls on public power: misfeasance in public office and malicious prosecution.
Misfeasance in public office is not a negligence claim. It does not exist to compensate for administrative error or poor judgment. It exists to hold public officials personally and institutionally liable where power is used in bad faith. The modern doctrine was defined by the House of Lords in Three Rivers District Council v Bank of England (No 3). Their Lordships made clear that misfeasance arises in one of two situations: either where an official acts with the intention of injuring a person or class of persons, or where an official acts knowing that he has no lawful power to do so, or with reckless indifference to that fact, and knowing or being recklessly indifferent to the probability that harm will result. The second limb is the more important in regulatory and prosecutorial contexts. It captures the official who presses on with an unlawful course of action because it suits the interests of the institution or the individuals involved, even though they know that what they are doing is legally unjustified and likely to cause damage. Crucially, however, the test is subjective. It is not enough that the conduct was in fact unlawful. The claimant must prove what the decision-maker actually knew or consciously chose to ignore.
That distinction explains why so many misfeasance claims fail. It was illustrated starkly in Bourgoin SA v Ministry of Agriculture, Fisheries and Food. The government imposed a ban on French turkey imports in breach of European law. The minister knew the ban was unlawful. Yet the misfeasance claim did not succeed, because the court held that knowledge of illegality was not enough. The claimant had to show that the unlawful act was chosen as a means of injuring them. In other words, the law demanded proof of abuse, not merely proof of illegality. The BCCI litigation itself demonstrates how severe that evidential hurdle can be. Although the House of Lords held in Three Rivers that subjective recklessness could, in principle, found liability, the depositors failed at trial because they could not prove that senior Bank of England officials possessed the requisite state of mind. After years of disclosure and evidence, the gap between regulatory failure and provable bad faith proved impossible to bridge.
Malicious prosecution occupies a different, though overlapping, space. It traditionally addressed wrongful criminal proceedings brought without reasonable cause and for an improper purpose. A prosecution that is pursued to punish a suspect, to save face, or to advance an ulterior objective is an abuse of the court’s process. For centuries the tort was confined to criminal cases. That changed with the Supreme Court’s decision in Willers v Joyce, which held that civil proceedings of a sufficiently analogous character may also give rise to liability if they are brought without reasonable cause and for an improper purpose. The majority accepted that civil litigation can be used as a weapon just as effectively as a criminal charge, and that the law should not be blind to that reality. That extension was controversial, precisely because of the fear that it might deter legitimate claims. But the court was careful to emphasise that only proceedings brought without reasonable grounds and for an improper motive would be caught. For public bodies, the significance lies in the increasingly civilised form of enforcement. Regulators, prosecutors and agencies now rely heavily on civil recovery, confiscation proceedings and disciplinary actions that can be just as coercive as criminal charges. Where those processes are abused, malicious prosecution may provide a remedy. The difficulty, once again, rests in proof. It is one thing to show that a prosecution or enforcement action was wrong. It is another to prove that it was brought without reasonable cause and for an improper purpose.
The clearest examples of misfeasance arise where officials have consciously manipulated the truth. The aftermath of the Hillsborough disaster provides the most striking illustration. Police officers altered statements, suppressed evidence and misled investigations in order to deflect responsibility for a catastrophic failure. That conduct was not negligent or misguided. It was a deliberate abuse of public office. Misfeasance claims succeeded because the dishonesty and institutional self-protection were provable, following the findings of the Hillsborough Independent Panel and subsequent litigation. By contrast, in many regulatory and prosecutorial cases the courts have been willing to condemn conduct without finding misfeasance. The ENRC litigation against the Serious Fraud Office provides a modern example. The High Court was scathing about the SFO’s use of leaked and privileged material and its investigative practices. Yet claims against the SFO itself for misfeasance failed because the claimant could not establish that SFO officials knew their conduct was unlawful and likely to cause loss. The case illustrates the line the courts draw between impropriety and actionable abuse.
Immigration detention cases reveal the same pattern. In Muuse v Secretary of State for the Home Department and R (Lumba) v Secretary of State for the Home Department, the courts held that the Home Office had acted unlawfully and in breach of its own policies, resulting in prolonged detention. Yet misfeasance claims failed because the evidence showed administrative failure rather than conscious or reckless disregard for legality. A person can therefore be unlawfully detained for months and still recover only nominal damages if bad faith cannot be proved.
These outcomes often appear harsh. But they reflect a deliberate policy choice. The courts have confined misfeasance and malicious prosecution to cases of provable abuse in order to avoid paralysing enforcement bodies through the constant threat of damages claims. That policy choice has practical consequences. The evidence needed to prove these torts lies almost entirely within the control of public bodies: internal emails, memoranda, decision logs and informal communications. Disclosure battles are long and expensive. Public interest immunity and legal privilege further restrict access to the truth. Legal aid is rarely available. Many potential claimants simply cannot afford to fight.
Even where evidence exists, time limits pose a further barrier. Misfeasance claims are subject to the Limitation Act 1980. Malicious prosecution claims cannot be brought until the underlying proceedings end. Often the reality of abuse emerges only years later, through inquiries or whistleblowers, when limitation arguments may already be in play. Where a claimant does succeed, the remedies can be substantial. Courts may award compensation for financial loss, reputational harm and distress. In exceptional cases they may award exemplary damages to punish and deter outrageous abuse. Claims under the Human Rights Act 1998 may also be brought alongside tort claims, particularly where Articles 5, 6 or 8 of the Convention are engaged.
Conclusion
Misfeasance in public office and malicious prosecution are among the most demanding causes of action in English law. They are not designed to correct administrative failure, nor to provide compensation whenever public bodies get things wrong. They are designed for something more serious: the deliberate misuse of state power. The courts have drawn the line carefully. They have insisted on proof of dishonesty, bad faith or conscious illegality before liability will arise. That insistence protects regulators, prosecutors and police from being paralysed by fear of litigation. But it also leaves many victims of wrongful enforcement without a meaningful remedy. That is the price of the current legal balance.
Yet these torts remain constitutionally vital. They affirm that no public office is a licence to act with impunity. They recognise that when power is used not to serve the public but to protect institutions, punish critics, or conceal failure, the law must have a means of response. As regulatory enforcement becomes more aggressive, more politicised and more reliant on coercive civil processes, the importance of these doctrines will only grow. Whether the courts should lower the threshold for liability, or whether Parliament should create clearer statutory remedies for abusive enforcement, remains a matter of debate. What is clear is that without misfeasance and malicious prosecution, there would be no civil law language in which to describe - let alone remedy - the deliberate abuse of state power. In a legal system that entrusts regulators and prosecutors with extraordinary authority over private life and commercial survival, that narrow doorway to accountability, however difficult to pass through, remains indispensable.
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