How We Brought a Malicious Prosecution Claim Against the Police


Client: “Carl Jackson” (Name changed at our client’s request.)

Claim: Civil action against the police for:

  • malicious prosecution
  • misfeasance in public office
  • false imprisonment
  • assault/ battery
  • trespass.

Claimant’s Lawyers: Kevin Donoghue, Solicitor and Daniel Fitzsimmons, Chartered Legal Executive

Result: £12,000 compensation paid plus legal costs.

What Happened?

Carl Jackson and his ex-wife did not get on after their divorce. In January 2016 her new partner threatened Carl with a firearm. Understandably, Mr Jackson was shaken, afraid, and upset by the assault.

Carl feared for his safety and reported the incident to the police. He spoke to an operator who promised to send someone out. He had a drink to steady his nerves while waiting.

The door was open when a police officer came to the house. Carl’s dog ran out and he went to get it. The policeman went inside without being invited or asking permission.

The officer took a statement but used an unpleasant, questioning tone. Carl didn’t like how the officer was talking to him. He was a victim after all.

(The constable later said Carl was slurring his words, aggressive, and rude. Mr Jackson denies this.)

Mr Jackson told the policeman to leave. The officer refused and angrily told Carl that he had wasted his time. Carl stood up to usher the officer out.

Police Assault

But, instead of leaving peacefully, the policeman grabbed Mr Jackson by the throat. He then pushed Carl back and punched him in chest and ribs.

Carl was shocked for the second time that day. Somehow, he managed to ring 999 for help during the police assault. The operator was no help. She instructed Carl to cooperate with police.

Once the call ended the police officer sprayed Mr Jackson with PAVA “pepper” spray. Carl suffered searing pain, watering eyes, runny nose, and spit came up in his mouth. The spray also caused Carl’s airways to tighten, making it hard to breathe.

The use of pepper spray indoors made things worse. Carl could not get fresh air relief.

Arrest for Assault PC

Another police officer arrived moments later. This officer took his colleague’s side and refused to hear Carl’s version of events. The police arrested Mr Jackson for assaulting a police constable in the execution of his duty (a.k.a. Assault PC).

Carl could not believe what was happening. He was the one under arrest despite:

  1. suffering an assault that day, and
  2. doing the right thing by involving the police.

The police put handcuffs and leg restraints on Mr Jackson. They took him into custody, humiliating him in full view of his neighbours.

The police booked him in at the local station. They took DNA, fingerprints, a photograph, and personal details. They held Carl in a cell while he waited for an interview.

During interview, the police officer who assaulted Carl sought to justify the arrest. He said that Carl threatened to stab him with a decorative sword mounted on a living room wall. Carl denied this but the police still charged him with assaulting a police officer.

Carl feared for his freedom. This serious charge can result in imprisonment. The police released Mr Jackson on bail and he went home.

Criminal Court Proceedings for Assaulting a Police Officer

Carl got a court summons in the post. He briefed a criminal solicitor and explained what had happened.

Mr Jackson went to court as required. His solicitor submitted a “No case to answer” application right away. The lawyer argued that the first police officer’s license to remain in the home expired once Carl instructed him to leave. This meant that the officer’s legal status changed. He went from being a lawful visitor to a trespasser.

As a result, the police officer could not be acting in the execution of his duty when the alleged assault (by Carl) took place.

The court accepted this argument and acquitted Carl.

Reaction to Criminal Proceedings Acquittal

Carl was furious with the police. He had been:

  • assaulted
  • arrested
  • charged
  • prosecuted all the way to trial

for a crime he did not commit.

He submitted a complaint against the police. But, as so often happens, the police closed ranks and it didn’t go anywhere.

In Carl’s view, this made matters worse. The police had treated him appallingly throughout. He wanted justice. The police’s dismissal of his complaint meant had no alternative but to seek help from a civil lawyer.

Photo of Daniel Fitzsimmons, a Legal Executive who helped a client win his malicious prosecution claim.

Daniel Fitzsimmons is a Chartered Legal Executive who specialises in civil actions against the police.

How Donoghue Solicitors Helped With a Civil Claim Against the Police

Carl’s criminal solicitors suggested that he bring a civil compensation claim. They suggested he speak with a specialist actions against the police lawyer, and recommended Kevin Donoghue, solicitor. (We receive many referrals from other solicitors because of our award- winning expertise in this niche area of law.)

How Lawyers Review a Malicious Prosecution UK Claim Against Police

Kevin Donoghue and Daniel Fitzsimmons, Chartered Legal Executive, worked together on Carl’s case.

The lawyers took full details and considered both sides’ version of events. Carl sent photographs showing the injuries caused by the police.

During their case review, Kevin and Daniel wanted to know more about the officers’ conduct.

Could Carl bring civil compensation claims for

  1. malicious prosecution
  2. misfeasance in public office
  3. other things?

They reviewed his case as follows:

1. The tort of malicious prosecution

This has five elements. The Claimant must prove all of them to succeed.

Most importantly, this tort requires the claimant to prove malice on the part of the police. Malice can be spite, ill-will, or improper motive. The Claimant must show that 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”).

The evidential and legal test is high, and most cases do not go forward. Could this one?

2. Misfeasance in public office

Misfeasance claims often overlap with malicious prosecution cases. They involve a civil tort pursued against a holder of public office (such as a police officer) following the misuse or abuse of power.

Again, they are hard to prove. This is because the Claimant must prove bad faith in misfeasance in public office claims.

(Read more about malicious prosecution and misfeasance in public office claims here: The Law in Civil Actions Against the Police.)

3. Other “heads of claim”

If proven, Carl could also claim compensation for the police’s actions around the initial arrest and detention. These included claims for:

Pre-Proceedings Action Against the Police

Despite the long odds on the malicious prosecution and misfeasance in public office claims, Kevin and Daniel felt that Mr Jackson’s case was worth investigating. They agreed to act on a “no win no fee” basis, which meant that he did not have to fund his case privately.

Kevin intimated a claim under the Civil Procedure Rules. He followed the personal injury pre-action protocol because the claim involved a police assault.

The police’s lawyers denied liability, as expected.

Kevin and Daniel were not put off and prepared the case for trial. They got Carl examined by an A&E specialist doctor. The expert confirmed that Carl suffered deep bruises to his chest, arms, and other areas during the police assault and arrest.

Kevin Donoghue, solicitor, helps with malicious prosecution claims against the police.

Kevin Donoghue, solicitor, issued court proceedings in this civil action against the police.

Formal Court Proceedings Against the Police

The police’s stance meant that Carl had no alternative but to issue civil proceedings at court. He claimed compensation for:

  • malicious prosecution damages
  • misfeasance in public office
  • false imprisonment
  • assault/ battery
  • trespass.

Mr Jackson sought aggravated and exemplary damages, which are rarely awarded but justified in cases where the police cause serious injuries to feelings and/ or where the court intends to punish the police for “oppressive, arbitrary or unconstitutional action”.

Police Response to Malicious Prosecution Claim

The police filed a defence in which they said that:

  1. the police officer accepted that he punched Carl in the chest, took him to the ground, and sprayed him with PAVA. But, the force’s lawyers argued that the officer’s actions were lawful. They said the officers were concerned about Mr Jackson’s welfare and acting in self-defence. They disputed Carl’s version of events.
  2. the officers considered arresting Carl for a breach of the peace. (Read why this is a misunderstanding of the law and bound to fail here.)
  3. s.17 of the Police and Criminal Evidence Act gave the police the power to stay in the property. (Kevin and Daniel disagreed.)

With the Particulars of Claim and Defence filed, the parties’ positions were set out and Carl’s case progressed.

Kevin and Daniel were confident a jury would sympathise with Carl’s case. They submitted a jury trial application to the court. (Civil actions against the police are one of the few areas of civil law where this is possible.)

This prompted a response. The police made a £2,500 “Part 36” offer. (Part 36 offers come on strict legal terms. They put pressure on the receiving party to settle, or face costs consequences if not beaten at trial.)

Mr Donoghue and Mr Fitzsimmons considered the offer and Carl’s case. They recommended that their client reject the offer, despite the risks. He agreed.

So, the lawyers thanked the police for their offer and suggested a Joint Settlement Meeting (often referred to by lawyers as “a JSM”) to see if it was possible to settle Carl’s claim before trial.

Joint Settlement Meeting

Daniel and Kevin agreed that the joint settlement meeting could take place at one of the police forces’ stations. This made sense as:

  1. it avoided the expense of hiring rooms. (The lawyers felt that a judge would appreciate this when legal costs were being discussed.)
  2. Claimant and Defendant representatives usually attend. But the lawyers agreed that Carl should stay away from the police station due to his fragile mental state. They worried about the possibility of further trauma after all that had happened. Instead, Daniel would attend with Carl’s barrister, David Hughes.
  3. The proposed meeting was a long way away. But Daniel, Kevin, and David thought that the police might feel more invested in the process if Carl’s lawyers were willing to meet them “on their turf”. This was more likely to result in productive negotiations.

Pre-JSM Preparation

Before the joint settlement meeting, Carl’s lawyers agreed a strategy with Mr Jackson. This included

  • a frank review of the strengths and weaknesses of his case
  • discussions about how to deal with liability
  • a range of settlement values for his compensation claim against the police, backed up by case law and precedent.

Daniel also made sure that Carl was available by phone to discuss any offers from the police during the JSM.

What Happened in the Joint Settlement Meeting?

Daniel and Mr Hughes travelled to the police station for the meeting. A force solicitor and barrister attended on behalf of the Chief Constable.

The legal teams worked together to narrow the issues between them and settle the case at the JSM.

Civil Action Against the Police Result

With Mr Jackson’s approval, Daniel and Mr Hughes agreed that the police would pay Carl:

  1. damages of £12,000, plus
  2. legal costs incurred, which included the joint settlement meeting costs.

Carl received full and fair compensation for his claim. He was delighted with the result and noted that the £12,000 settlement was nearly five times more than the police’s Part 36 offer.

Kevin Donoghue filed a consent order at court which demanded that the police pay Carl his rightful compensation within 14 days. With the help of his lawyers, Carl got the justice he deserved.

Donoghue Solicitors is authorised and regulated by the Solicitors Regulation Authority. Contact us here for help with your civil action against the police.