Overview:
Client: “Pavel” (name and some details changed)
Claim: Civil action against the police for:
- malicious prosecution
- misfeasance in public office
- false imprisonment
- assault/ battery
Claimant’s lawyer: Kevin Donoghue, Solicitor
Result: The police paid £17,000 compensation for this wrongful prosecution claim together with the claimant’s legal costs.
What happened?
Pavel is a 47-year-old businessman.
In September 2018 he drove to meet friends in a local pub. Later, Pavel went back to a friend-of-a-friend’s house to carry on the evening. He knew he was not sober. Sensibly, he walked there from the pub.
Pavel had more drinks at the house and then decided that he wanted a smoke. He asked the friend-of-a-friend if he had a lighter. The man replied that he didn’t in the house, but that he had one in his car, a Ford Focus, on the driveway outside.
Pavel took the car key and got into the car.
A police officer pulled up and blocked the drive while Pavel was rummaging around.
The officer, a young man in his twenties, opened the car door, and asked Pavel what he was doing.
Pavel explained and the constable asked him to come to the police car. Pavel was not concerned, so went to the car without fuss and sat in the back seat.
He gave his details to the officer, who checked them on his pronto (blackberry type) device.
The mood changed quickly. The officer found Pavel’s details on the police national computer database. Entirely unprovoked, the officer said, “you’re a bit of a dickhead, aren’t you?” Perhaps unwisely, Pavel responded, “you’re a dickhead”.
Arrest and detention for drink/driving offences
At this point, the officer turned on his body worn camera, opened the police car’s rear door, and said, “Because you’ve told me you’re going to drive home, I need a specimen.”
Pavel had said no such thing and told the officer so. Sensing that things were taking a turn for the worse, he wisely started an audio recording on his mobile phone.
The officer then told Pavel that he was under arrest and called for backup. This time, Pavel said nothing.
The police took Pavel to a local station. He was breathalysed and blew just over the legal limit.
Pavel was “booked in”, his possessions taken, and personal data and DNA recorded. The police put him in a cell before interviewing him without a solicitor. Pavel denied the police’s allegations and gave a consistent version of events throughout.
The police kept him overnight. Pavel was formally charged and released at lunchtime next day, after being detained for about 11 hours.
Criminal proceedings
But that wasn’t the end of the story. In fact, Pavel’s ordeal was only just beginning.
The police sent details of the alleged offences to the Crown Prosecution Service, who prosecuted Pavel for:
- failure to provide a roadside test without reasonable excuse, and
- drunk in charge of a vehicle.
Pavel instructed a criminal defence solicitor, Paolo Martini at Cobleys solicitors. He entered a “not guilty” plea in January and the case went to trial in March 2019. Before the second hearing, the arresting police officer submitted a written witness statement, which was backed by a statement of truth.
He also gave oral evidence at the trial. At court the officer said he would “tell the whole truth, and nothing but the truth.”
Despite these things, the officer, who is also bound by a strict Code of Ethics which demands honesty and integrity as a core value, gave evidence which was later proven to be false. For example:
- the constable said it was a mere coincidence that he was outside the house
During cross-examination, Mr Martini put it to the officer that this was not true. In fact, the lawyer argued, the officer was sat outside the house because, earlier that night, there had been a car chase involving a van which had been registered to the address. The officer denied this.
- the policeman told the court that Pavel said he was going to drive home, so that was why the officer requested the specimen
In fact, Pavel had said no such thing and insisted that the only reason he was in the car was to find a lighter.
- The officer denied searching Pavel’s police national computer record on the pronto device and calling him a “dickhead”
- In his written witness statement, the constable said that Pavel did not have cigarettes on him.
This last point was especially important because, at the trial, the prosecution produced the constable’s Body Worn Camera footage for the first time. When the court saw the video, it was clear that Pavel was holding a cigarette, which he dropped, prompting the police officer to ask, “any reason why you have just dropped your cigarette?”
The lying constable quickly changed his story. He admitted that Pavel had a cigarette and told the officer that he was looking for a lighter, not that he was going to drive home.
Mr Martini had heard enough. He complained to the court that the defence team didn’t have access to this crucial body worn camera footage or officer notebook evidence before trial. The judge adjourned the hearing until 11 April 2019 to allow time for the Crown Prosecution Service to formally disclose it and for Paolo to review the evidence with his client.
Third Magistrates Court appearance
At the third hearing, the officer changed his story again. He now admitted that he had done a full background check on his pronto device, and that the reason he was outside the house was because of the car chase.
Quite rightly, the District Judge dismissed the allegation that Pavel was drunk in charge of the vehicle after hearing this.
But incredibly, the judge allowed the prosecution to continue with the other criminal charge (refusal to provide a specimen) for which Pavel was found guilty. His punishment was:
- four points on his driver’s licence
- a £250 fine
- a £20 victim surcharge
- £300 costs.
Pavel was furious. He appealed the unjust decision and refused to pay anything. Later, court enforcement officers came to his home to try and enforce the fine, adding to Pavel’s sense of grievance and stress.
The Crown Court appeal
In September 2019, Pavel’s appeal against his conviction for failing to provide a specimen was heard by a senior, three judge panel, at the Crown Court.
By this point, the police officer’s version of events had changed again.
He now:
- denied ever performing the pronto police national computer check
- accepted that he had been sent to the address of the van driver the police suspected had been involved in the car chase
- admitted that his earlier witness statement about the Pavel not having cigarettes was wrong.
The Crown Court was not impressed. A master of understatement, the leading judge said:
“we are not satisfied that the evidence of [the arresting police officer] was reliable and that he had the reasonable suspicion that he claims to have, and in those circumstances we allow the appeal and dismiss the charge.”
Kevin Donoghue, solicitor, got involved in this wrongful prosecution case after a referral from Paolo Martini, a criminal law solicitor.
How Donoghue Solicitors got involved
Pavel had cleared the criminal offence from his record but was understandably angry at his mistreatment at the hands of the police.
An officer had made up false charges and sought to protect himself and his force by lying, not once, but repeatedly, in writing and under oath. And he would have got away with it if Pavel didn’t have the courage to fight the case to the Crown Court.
Pavel wanted to claim compensation and get justice. He asked Paolo Martini for a recommendation of a lawyer who specialises in civil actions against the police.
Mr Martini referred Pavel to Kevin Donoghue, solicitor director of Donoghue Solicitors, because Kevin has a proven track record in these highly specialised malicious prosecution cases (read a case report about one here) and regularly accepts referrals from other solicitors.
Legal analysis of this potential civil claim against the police
Mr Donoghue reviewed the case. In his expert opinion, there were four possible “heads” of claim:
- False imprisonment – Pavel was detained for about 11 hours in total and was entitled to compensation for this if he could prove it.
- Assault / Battery – the officer used handcuffs, and Pavel’s DNA data was taken
- Misfeasance in public office – this is a civil tort (wrong) brought against the holder of a public office (such as a police officer) following the bad faith abuse, or misuse, of power
- The Tort of Malicious Prosecution – among other things, this civil tort requires that the claimant prove malice on the part of the police (which can be spite, ill-will, or improper motive).
And yet, as Kevin explained:
At first blush, this might appear to be a straightforward case given the Crown Court’s findings.
Sadly, this was not the case. Pavel’s claim was primarily based in two seldom-used torts: malicious prosecution and misfeasance in public office.
Although I am well-known in the field for representing clients in these cases it is rare for other civil litigation lawyers to take them. This is because the burden of proof is on the claimant to satisfy the court that all aspects of these complex matters are proven.
For example, malicious prosecution has five elements, all of which must be proven. This is a very high bar. It means that, even if Pavel could prove that the officer acted with malice which resulted in him being prosecuted by the police, they might still convince a civil court that the officer had reasonable and probable cause to prosecute anyway. If the court agreed, a malicious, wrongful, prosecution claim would fail.
Complicating Pavel’s case further was that the Magistrates Court had (albeit wrongfully) convicted him on one of the two charges (failing to provide a specimen). Even though the court’s reasoning was flawed, and the arresting officer had given “not reliable” evidence, the conviction could help the police argue that the officer had the required reasonable suspicion to arrest and prosecute Pavel.
(Case law helps the police argue this point. Reasonable suspicion is defined loosely as “more than a hunch but less than proof”. See Hussein v Chong Fook Kam [1970] AC 942 as explained here).
And, as Pavel found, the police often, and unfairly, get the benefit of the doubt in legal proceedings even when they have misled the court.
Click here for a full explanation of the law in malicious prosecution claims.
Paying for a civil action against the police for malicious prosecution and misfeasance in public office
Kevin explained to Pavel that he had to clear another, more basic hurdle: money. Legal aid is extremely difficult to get, so claimants in civil actions against the police routinely take a financial risk, even if their cases are funded by “no win no fee” agreements. Contrast that with the police and the near limitless resources of the State. As Kevin said:
Pavel was brave. After everything the police had put him through, he was willing to put his own finances on the line and determined to fight for justice all the way to trial, if necessary.
(Read more about funding options in civil actions against the police by clicking on the link.)
Mr Donoghue agreed to represent Pavel on a conditional fee (no win no fee) basis. The decision to take the case was not easy though. Civil actions against the police are very demanding and high-risk cases for lawyers. They can take years and need a considerable financial and time investment.
And, unlike the police’s lawyers, Donoghue Solicitors would not get a penny unless Pavel was successful in his civil claim.
What happened next?
Despite the risks, Kevin felt Pavel had grounds to prove the required elements of malicious prosecution and misfeasance in public office. He gathered evidence and used it to send a formal Letter of Claim to the police in June 2020.
Unsurprisingly, the police responded by denying liability in full. They seemed determined to stand by their man.
Kevin was not deterred. He instructed a specialist barrister, David Hughes, to prepare the Particulars of Claim which described the case in technical terms for Pavel’s legal action. Mr Donoghue also obtained a witness statement from Paolo Martini which covered the contradictory evidence the police officer gave in the Magistrates Court.
(This step was essential because, unlike in the Crown Court, Magistrates Court hearings are not recorded, and no official transcripts are available to help prove what was said.)
Formal court proceedings to seek compensation for wrongful prosecution
Despite Kevin’s best efforts, the police refused to settle the claim. So, Pavel had no alternative but to authorise Kevin to issue formal, expensive, court proceedings. This increased the risk on both Pavel and his lawyer considerably.
In response, the taxpayer-funded police maintained their blanket denial in a formal Defence.
But interestingly, they made a £5,000 “Part 36” offer. (These offers are designed to put the receiving party under pressure because there are severe costs consequences for not beating them at trial.)
Despite this extra risk, Kevin was still confident in his client and case. Mr Donoghue knew that, if proven, Pavel’s claim was worth much more than the police were offering.
How the wrongful prosecution case progressed
Kevin advised Pavel not to accept the police’s offer. Both sides prepared the case for a County Court trial in March 2023.
This involved preparing and disclosing evidence they intended to use, including witness statements.
Kevin relished this stage of the case. He knew that his client had been consistent throughout and would make a good witness. By contrast, the police would be reluctant to produce a witness statement from the arresting officer because he had changed his story so many times.
Sure enough, the police’s lawyers increased their offer to £12,000 on the basis that they would not have to produce the officer’s written statement.
Kevin refused to take the bait. He told the police that he would not discuss the offer until he had seen the officer’s statement.
In October 2022, the police relented and sent over the officer’s statement. It was clear that the officer had been coached. Among other things, the policeman now said:
- that he only formed the suspicion that Pavel was attempting to drive when the constable saw Pavel (allegedly) stumble out of the property and towards the Ford Focus
The officer had earlier said that the reason as to why he formed the suspicion that Pavel intended to commit a crime was due to what Pavel had (allegedly) told him.
He now put forward another reason. It was impossible to say exactly what the officer’s evidence was. Mr Donoghue anticipated he would struggle when giving evidence in court.
- he “could not recall” what he said at the Magistrates Court
Kevin’s view was that he said this knowing full well that those proceedings were not recorded.
- he said he was “too honest” in his previous answers
Mr Donoghue could only laugh at that line, knowing that the officer had changed his story more times than a chameleon changes colour.
Result: malicious prosecution claim settled for three times more than offered
Mr Donoghue advised his client to prepare himself for a trial but to keep an open mind about settlement. Kevin knew that the police were vulnerable. He was determined to get the best possible result for his client.
With Pavel’s agreement, Mr Donoghue made his own Part 36 offer of £20,000. This time, the police said they would increase their offer of £12,000. They proposed £15,000 as a “final offer”.
Kevin recommended that Pavel reject this third offer. His client agreed.
Mr Donoghue kept pushing. He reminded the police that the constable was a “terrible witness” and countered with £17,000 plus legal costs incurred.
The police force agreed, showing that their so-called “final offer” was anything but.
Pavel was thrilled with the result. His compensation was more than three times the police’s first offer, and he did not need to go to court again.
And, because he got expert help to bring a claim against the police, justice had been done.
Read why you should use Kevin Donoghue, solicitor, for help with your civil action against the police by clicking on the link.