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malice

1. (in criminal law) A state of mind (see *mens rea) usually taken to be equivalent to *intention or *recklessness: it does not require any hostile attitude. Malice is said to be transferred when someone intends to commit a crime against one person but in fact commits the same crime against someone else (for example, if he intends to shoot X but misses, and instead kills Y). Malice is universal (or general) when the accused has no particular victim in mind (for example, if he shoots into a crowd intending to kill anyone). In both cases this constitutes mens rea. See also *constructive malice.
2. (in tort) A constituent of certain torts. In the English law of tort, the general rule is that a malicious motive cannot make conduct unlawful if it would otherwise be lawful. For example, a right to take water from under one’s own land can lawfully be exercised solely in order to cause damage to a neighbour. However, in some cases malice can be relevant. An action for *malicious prosecution requires proof that the prosecution was instigated maliciously, i.e. without reasonable and probable cause.

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