Civil Actions Against the Police

Civil actions against the police (or other bodies acting with police-like powers) can be complicated and should only be undertaken by specialists in the field.

For that reason, if you want help to sue the police, contact  John on 01207654365.

These are civil claims for compensation made through the judicial system.

Actions against the police are in most circumstances highly defended thus we strongly advise you to instruct an experienced lawyer.

Initial complaints need to be made to the relevant police force within one year of the incident. A claim for personal injury damages needs to made within three years of the incident. Other aspects of your claim such as matters arising under the Human Rights Act must be made within one year and for discrimination complaints, a claim must be made within six months of the incident.

Other areas such as malicious prosecution, false imprisonment and misfeasance in public office, a claim must be made within six years.

But you must have exhausted all compliant remedies before pursuing legal action and that may need to include a complaint to the Independent Office for Police Conduct (IOPC).

The police complaint should always start at the relevant police force however the police force must refer the following to the IOPC;

  • Death or serious injury
  • Serious assault
  • Sexual offence
  • Serious corruption
  • Criminal offence or behaviour

The IOPC will then decide how the investigation will be conducted whether they will direct the police force to conduct a local investigation or whether the IOPC will manage/supervise the investigation or whether the IOPC will conduct an independent investigation.

The use of tort (a civil wrong) law allows citizens who have been subject to the abuse of the police’s extensive powers to sue the police.

These civil claims are made by people who have been wronged by the police in some way, for example:

  • by unlawful arrest
  • false imprisonment
  • the unlawful use of a police warrant
  • police abuse.

When suing the police, victims of police misconduct will usually seek compensation (for details see the compensation information at the bottom of this page) plus a contribution towards their legal costs.

Depending on the circumstances the police may also apologise for their actions, destroy DNA and personal data, correct records on the Police National Computer etc.

Civil actions against the police are different from complaints against the police where the aim is for the police to effectively conduct internal disciplinary matters.

Legal Basis for Making a Claim

Common “heads of claim” (categories of loss) for civil actions against the police include, but are not limited to:

  • False imprisonment
  • Assault/ battery
  • Malicious prosecution
  • Misfeasance in public office
  • Trespass
  • Negligence

False Imprisonment

This is the most common head of claim in civil actions against the police

False imprisonment is the “complete deprivation of liberty for any time, however short, without lawful cause”. (See Clerk and Lindsell on Torts, 19th edition, 2006, 15-23.)

It is also known as:

  • Wrongful arrest
  • Unlawful arrest
  • False arrest.

Innocent victims of police misconduct can claim compensation for false imprisonment as a “head of claim”. Other heads of claim include:

  • Assault/ battery
  • Malicious prosecution
  • Misfeasance in public office
  • Trespass
  • Negligence.

Assault/ Battery

You may be aware that a police officer is entitled to use no more force than reasonable and necessary in the purported exercise of his lawful powers. (See s117 of the Police and Criminal Evidence Act (1984)).

If the purported exercise of the power was unlawful, for example:

  • where there were no reasonable grounds for suspicion in the case of an arrest, or
  • an unapproved method of restraint was employed,

then the application of any and all force will be unlawful from start to finish.

The Claimant would be entitled to compensation for any force used to secure arrest (e.g. handcuffing) as well as any force used during the course of detention, e.g. taking of fingerprints/DNA sample.

If the application of force is in the furtherance of the exercise of lawful powers, then the issue will be whether the application of force itself was excessive.

What is excessive will depend upon the circumstances as apparent to the officer (this is known as “the subjective test”).

Malicious Prosecution

Here the Claimant must prove five things when suing the police under this head:

1. a prosecution of the Claimant;

2. which has been determined in his or her favour; and

3. which has caused him or her damage.

(These are easier to obtain admissions by the police in a malicious prosecution claim.)

But the Claimant must also prove:

4. that the prosecution was brought without reasonable and probable cause, and

5. that it was motivated by malice.

Dealing with the five elements of malicious prosecution in turn:

1. To prove malicious prosecution in a civil action against the police, the Claimant must first prove that the Defendant acted in such a way as to be actively instrumental in putting the prosecution in motion.

This is usually straightforward to prove where the allegation is that one or more officers have fabricated the evidence upon which the charge is based.

2. In malicious prosecution cases, “determination in Claimant’s favour” means an acquittal, quashing on appeal, or discontinuance.

Note the special situations of binding over orders to keep the peace.

An agreement to be bound over to keep the peace does not prevent a claim for malicious prosecution.

This is opposed to the situation where the Claimant is bound over after the hearing of a complaint.

The distinction is that the bind over does not arise from a decision of a court of justice.

3. The prosecution must have resulted in provable damage to the person’s reputation, freedom, injury, or caused a financial loss.

4. Where the Claimant’s case centres on a direct conflict of evidence between him or her and the officers, and the claim is that officers have concocted their version of events, there should be little difficulty in establishing the fourth element of the tort, a lack of reasonable and probable cause.

If the Court finds that the officers have lied, it follows;

a. they lacked an honest belief in Claimant’s guilt; and

b.a person of ordinary prudence and caution would not have concluded that the Claimant was guilty.

5. Finally, the police must have been motivated by malice to prove malicious prosecution.

What is malice?

According to the 1998 case of Gibbs v Rea, malice covers not only spite and ill-will but also improper motive.

I.e. the motive for the prosecution must have been something other than a desire to bring the accused to justice. This presents no difficulty where the Claimant alleges that the police have fabricated evidence.

So in malicious prosecution cases the Claimant must prove either:

  • the prosecution did not have an honest belief in the Claimant’s guilt (“the subjective test”); or
  • a person of ordinary prudence and caution would not conclude in the light of facts honestly believed at the time that the Claimant was probably guilty (known as “the objective test”). See Glinkski v McIver (1961).

The claimant must prove each element of the Tort. If s/he fails to  prove any element then his/her claim in malicious prosecution will fail.

So, for instance, s/he might prove that the prosecution was motivated by malice, but if there was still good reason to prosecute him or her, the claim will fail. A want of good cause to prosecute cannot be inferred from malice.

Consequently, with the evidential and legal test being set so high, most cases for malicious prosecution do not win or are not pursued.

Misfeasance in Public Office

There is an overlap between misfeasance in public office and malicious prosecution in civil actions against the police.

If there is no malicious prosecution claim, because for example, reasonable and probable cause cannot be shown, or where the alleged bad faith is not malice in its classical sense, the tort of misfeasance in public office may be appropriate (as in Darker v Chief Constable of West Midlands Police).

What is misfeasance in public office?

Misfeasance in public office can be defined as a civil tort pursued against the holder of a public office following the misuse or abuse of power.

The Three Rivers DC v Bank of England case set out the test to show misfeasance in public office as follows:

  1.      the person whose conduct is in question is a public officer, and the conduct was an exercise of his or her power in that capacity;
  2.      s/he intended to injure the claimant by the exercise of that power, or knowingly/ recklessly acted in excess of that power;
  3.      by this the officer caused damage to the claimant; and
  4.      the officer knew (or anticipated) that the act would probably cause damage of the kind actually caused.

The second part of this test means that the tort requires bad faith on the part of the officer. A mistake is not enough.

Bad faith can arise in two ways:

  1. When the officer deliberately exercises his or her powers to injure a person; and
  2. When the officer exceeds their powers in the knowledge that they are doing so, or recognises that s/he might be doing so but goes ahead anyway. Here the officer also knows that the result of his or her actions will probably injure the claimant, or he s/recognises a risk that s/he will probably do so, but goes ahead regardless.

Trespass

Another common head of claim is trespass to land, as opposed to the person.

This is defined in “Clerk & Lindsell on Torts” as:

“any unjustified intrusion by one person upon land in the possession of another.”

The “possession” test means that the claim may be brought by the owner/ occupier or tenant of premises. This includes family members.

The legal justification for the police to enter premises is granted under sections 17, 18, and 32 Police and Criminal Evidence Act, or with a search warrant. 

There is an overlap with Article 8 European Convention on Human Rights (or “ECHR”) (which is reproduced in Schedule 1 of the Human Rights Act (1998)).

Section 6 of the Constables Protection Act (1750) protects an officer who searches premises in obedience to the terms of a warrant, even if that warrant was erroneously granted. The remedy in that situation would be under Article 8 of the ECHR.

For an example, read the 2003 case of Keegan v Chief Constable of Merseyside Police which came from a mistaken dawn raid.

The claim failed due to the UK courts finding the police’s actions (i.e. trespass) lawful in the first instance, but it succeeded under Article 8 at the European Court of Human Rights.

The European Court found that:

  • the trespass was not “necessary in a democratic society”;
  • the police ought to have conducted inquiries prior to the raid; and
  • their actions in breaking down the door were disproportionate.

Negligence

A familiar head of claim to many people is negligence.

To make out a case in negligence, the Claimant must prove:

  1. that a legal duty of care is owed by the Defendant to the Claimant;
  2. the Defendant breached that duty;
  3. the Claimant suffered recoverable damage as a result of the breach; and
  4. the damage (or that kind of damage) was a reasonably foreseeable consequence of the negligent conduct.

In civil actions against the police cases, there is a fundamental distinction between actions involving the investigation and suppression of crime, and other operational activities engaged in by the police (e.g. driving a police car on the road).

If you are thinking about suing the police under this head of claim, please note that cases involving negligence in investigation and suppression of crime often fail on the grounds of immunity.

For this see Hill v Chief Constable of West Yorkshire where the mother of a Yorkshire Ripper victim was unsuccessful in her claim for compensation as the House of Lords refused to impose a duty of care on the police.

Other Heads of Claim in Civil Actions Against the Police

Every action against the police claim is different.

As well as the heads of claim detailed above, you may also be entitled to claim compensation for other breaches. For example, under:

  • Equality Act 2010
  • Human Rights Act 1998
  • Breach of confidence
  • Data Protection Act 2018
  • Defamation 
  • Wrongful interference with goods
  • Breach of statutory duty
  • Maliciously obtaining search or arrest warrants
  • Etc.

How to Calculate Police Abuse Compensation

If you have been the victim of police abuse we will work hard to get you the maximum compensation for your claim.

What is Police Abuse Compensation?

In civil actions against the police, financial compensation (also known as “damages”) is payable to successful claimants.

Depending on the circumstances, this police abuse compensation can be paid along with other remedies, including:

  • a finding of liability against the police
  • an apology
  • an agreement to make lessons are learned
  • destruction of DNA records
  • removal of details from the police national computer
  • publicity, to show people that you were the victim of police abuse.

Actionable Police Abuse Claims

Police abuse claims are often difficult to prove (read our page on the law in civil actions against the police to find out why), but if successful, they can result in compensation being awarded.

The amount of compensation varies depending on a number of factors. In successful claims, the court will first consider if the loss claimed is actionable. This varies depending on the case. For example:

Trespass to person claims

These include claims for false imprisonment and assault & battery, and are separate to claims for trespass to land.

In trespass to person claims, the Defendant (usually the police, but it can be anybody acting with police-like powers, such as shop security staff) is liable for any damage that the Claimant would not have suffered but for the Defendant’s wrongdoing.

Equality Act claims

These are similar to trespass to person claims, and also allow the Claimant to claim compensation for distress as part of “basic damages” (see below.)

Human Rights Act claims

As above, but damages are discretionary and only paid to achieve “just satisfaction”.

In practice, this means that a declaration that the Claimant’s human rights were breached may be considered enough, rather than financial compensation.

“Aggravated” and “exemplary” damages (see below) cannot be claimed in Human Right Act cases.

Negligence and Nuisance

With these claims you can only claim damages for:

  • Personal injury/ death
  • Damage to property; and/ or
  • Financial Loss

You must be able to show the court that it was reasonably foreseeable that you would suffer one of these types of injury as a result of the police’s acts and/or omissions.

Malicious Prosecution

As our page on the law in civil actions against the police explains, you cannot claim compensation for malicious prosecution unless you can prove:

  • a favourable outcome in the criminal proceedings
  • loss of reputation
  • the risk of loss of life, limb or liberty; and/or
  • financial loss.

Once proven, the Claimant can seek damages for the effects of the prosecution which usually include distress and anxiety.

Misfeasance in Public Office

To claim compensation for misfeasance in public office the Claimant must prove:

  1. that the police’s action caused “material damage”, and that
  2. the official (usually a police officer) was aware of the probability of causing the material damage by their action.

The material damage includes one or more of:

  • Death or personal injury
  • Loss of liberty
  • Financial loss, and/or
  • Damage to reputation

Categories of Police Misconduct Compensation Claims

Once you have proven your actions against the police the court will consider the following categories of damages:

  • Basic
  • Aggravated
  • Exemplary.

    1. Basic Damages

These are the most common damages paid in police misconduct claims.

They are meant to compensate you for the actual loss and injury you suffered as a result of the police’s actions and put you in the position as if the police misconduct never happened.

Basic damages can include (not all may apply):

  1. General damages
  2. Loss of reputation
  3. Stress (e.g. for a criminal prosecution)
  4. Special damages.

What are General Damages?

General damages are compensation paid to the Claimant for pain, suffering, and loss of amenity (known as “PSLA”). They include physical and/ or psychiatric injury.

What are Special Damages?

Special damages are financial damages paid to the Claimant to remedy the quantifiable losses caused by the police’s misconduct. They often include loss of earnings, medical expenses, travel expenses to attend medical appointments/ court hearings etc.

Basic damages cannot be reduced because of any conduct by the Claimant which contributed to the police’s misconduct.

As with the categories of claims detailed above, basic damages vary in actions against the police.

In false imprisonment claims basic damages are awarded for the length of detention for:

  1. Loss of liberty
  2. Emotional consequences, including shock, damage to reputation, injury to feelings, psychiatric effects.

In malicious prosecution claims basic damages are paid from date of charge/ summons to favourable outcome.

2. Aggravated Damages

Aggravated damages are awarded only in exceptional cases where the police have:

  • deliberately acted to cause injury to the Claimant’s feelings, and
  • where basic damages are insufficient.

Unlike basic damages, aggravated damages are:

  • discretionary
  • intended to be compensatory and not punitive, and
  • the Claimant’s own contributory conduct can be taken into account to reduce or eliminate the aggravated damages award.

They are usually paid in addition to basic damages in serious claims involving, but not limited to:

  • trespass to the person (false imprisonment, assault & battery)
  • malicious prosecution
  • discrimination

They are rarely paid in negligence claims and never paid in Human Rights Act claims.

What does “Injury to Feelings” mean?

“Injury to feelings” includes:

  • using insulting language or behaviour and/ or
  • humiliating
  • degrading
  • distressing and/ or
  • outraging the Claimant.

What Do You Need to Show for Aggravated Damages?

The court will look at how the police behaved including:

  • Humiliating circumstances of arrest
  • Conduct of the police during arrest and/ or prosecution which shows “high-handed, insulting, malicious, or oppressive” behaviour
  • How they dealt with the civil compensation claim and/or trial. E.g. persistently denying liability can justify an award of aggravated damages.

(see Thompson and Hsu v Commissioner of Police for the Metropolis (1997))

3. Exemplary damages

Exemplary damages are awarded even more rarely than aggravated damages.

This is because they are meant to punish the police for outrageous conduct rather than merely compensate the Claimant.

They can only be awarded in tort (not Human Rights Act) cases where there has been:

“oppressive, arbitrary or unconstitutional action by the servants of the government”

(from Rooks v Barnard (1964)

Exemplary damages can be reduced or wiped out entirely due to improper conduct by the Claimant.

The Starting Point for Calculating Compensation in Actions Against the Police

Because every actions against the police claim is different, solicitors who deal with these claims rely on various sources.

For example, if the Claimant has suffered personal injury, the Judicial College Guidelines and case law in Kemp & Kemp can help value the claim.

For heads of claim that specifically relate to police misconduct, the Court of Appeal case of Thompson Hsu (link above) can help your solicitor make an initial assessment of compensation.

It is important to note that this case provided guidelines only.

Because every case is different, courts are free to consider the guideline rates then apply their own figures.

So a person who is familiar with the criminal justice process may receive less compensation than someone who has never had dealings with the police.

The smaller figures below are as they were originally stated. The amounts in brackets are uplifted for inflation as at March 2016 AND apply to matters after 1 April 2013.

(Claims after 1 April 2013, where the success fee is not recoverable from the Defendant, benefit from a 10% uplift in general damages. See Simmons v Castle (2012).)

Thompson Hsu Compensation Calculations

In Thompson Hsu, basic damages for false imprisonment range from between £500 (£842.26) for the first hour to £3,000 (£5,053.55) at 24 hours The first hour is higher to reflect the initial shock of wrongful arrest and detention.

(But note that awards for cases where lawful detention becomes unlawful are significantly lower. For example, in the case of R v Governor of Brockhill Prison ex parte Evans (2000) the Court awarded only £5,000 for an extra 59 days’ imprisonment.)

In proven malicious prosecution cases, the Court in Thompson Hsu suggested figures of £2,000 (£3,369.03) for a “basic prosecution” up to £10,000 (£16,879.83) for a prosecution up to two years in the Crown Court.

The Claimant may be entitled to a higher award if the malicious prosecution results in a conviction which is only set aside on appeal.

If the Claimant is awarded aggravated damages (this would be unusual), then the Court of Appeal said that the minimum amount should be £1,000 (£1,684.52) up to double the basic damages (unless they are very modest).

But basic and aggravated damages combined should not be more than “fair compensation”.

As stated earlier, exemplary damages are very rare. The Court anticipated a range of £5,000 (£8,422.58) to £50,000 (£93,114.15) for them.

Overall, it is unlikely that basic + aggravated + exemplary damages will exceed three times the amount for basic damages.

Discrimination (Equality Act) Claims

Discrimination claims are valued using guidelines established in Da’Bell v NSPCC (2010). Awards for basic damages can range between £6,000 (£7,276.36) to £30,000 (£36,381.79).

(Again, the figures in brackets are updated for inflation to March 2016 in cases after 1 April 2013.)

Aggravated damages may be paid depending on the circumstances.

Human Rights Act Claims

Valuing Human Rights Act claims is complicated because damages are set by European Court case law. Speak to your solicitor for more information.

Factors to Bear in Mind When Valuing Police Compensation Claims

It is important to remember that, even if awarded, aggravated and exemplary damages can be reduced or  eliminated depending on the Claimant’s own conduct.

And, when assessing damages under multiple heads of claim, remember that there can be some overlap between them, so reducing the overall total.

Finally, because actions against the police are complex and difficult to win, both sides must account for “litigation risk” when assessing the value of any claim. This is the risk that the claim might fail at trial and/ or that the court will reduce or eliminate damages for, say, the Claimant’s conduct.

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