The Law in Civil Actions Against the Police

Civil actions against the police (or those 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 Donoghue Solicitors on 08000 124 246, or complete the online form on this page.

Before continuing, please note our Terms and Conditions, and in particular, Section 4 “Disclaimers”.

Read on for a detailed explanation of the law in civil actions against the police.

Kevin Donoghue, Director of Donoghue Solicitors, explains the law in civil actions against the police.

What are civil actions against the police?

Civil actions against the police are claims for compensation made through the judicial system.

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 instruct solicitors, such as Donoghue Solicitors, to investigate their civil claims. They will usually seek compensation (for details see the police abuse compensation page of our website) and 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.

(Read all about the possible remedies in claims against the police by clicking on the link.)

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

Let’s look at these in turn.

False Imprisonment

This is the most common head of claim in civil actions against the police and is a very detailed subject so we have created a dedicated page.

Please click on the link to read all about the legal basis for claiming false imprisonment compensation.

(It opens in a new window so you can easily come back to this page when you’re done.)

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

Moving on now to malicious prosecution, 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 be admitted 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. (Click here to read about police warrant claims.)

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 for negligence, please note that cases involving investigation and suppression of crime often fail on the grounds of immunity. Sadly, we cannot help with these claims.

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 (read this police raid compensation claim case story to find out how this works in practice)
• Wrongful interference with goods
• Breach of statutory duty
• Maliciously obtaining search of arrest warrants
• Etc.

Speak to us about these other heads of claim and find out if you are entitled to sue the police for compensation or other remedies.

What Next?

This page concludes our explanation of the law in civil actions against the police.

Click on the remedies in claims against the police page to read about how we can help you seek justice.

Alternatively, contact us at Donoghue Solicitors today.

Call 08000 124 246 or complete the online form on this page to find out how we can help you sue the police and get the compensation you deserve.