People often claim compensation for false imprisonment in actions against the police (and against those acting with police-like powers).
Donoghue Solicitors are experts at dealing with these claims.
Alternatively, read on for more information about the law in false imprisonment claims.
Before continuing, please note our Terms and Conditions, and in particular, Section 4 “Disclaimers”.
What is False Imprisonment?
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 claim compensation for false imprisonment as a “head of claim”. Other heads of claim include:
- Assault/ battery
- Malicious prosecution
- Misfeasance in public office
Read our page “the law in civil actions against the police” for full details of how the law defines these claims and the legal requirements to prove them.
How Do I Prove False Imprisonment?
The Claimant has to prove that:
- they were detained, and
- there was no lawful authority to justify detention.
The Claimant must simply prove that they were imprisoned but once he or she has done this, the onus then lies on the Defendant (usually the police) to prove justification. This is settled law, dating back to the 1881 case of Hicks v Faulkner, and means that the burden of proof is shifted in false imprisonment claims.
So every imprisonment is “prima facie” (on its face) unlawful. This was stated in Liversidge v Anderson (1942), so again is well-established law.
We’ll look at these in more detail below.
1. How Do I Prove Detention in False Imprisonment Cases?
Detention can occur in many common situations, such as:
- in the course of a stop and search
- during questioning
- on arrest
- in prison.
The place of detention is irrelevant (so, for example, it can be in a car, in your own home, or in the street) but it must be total.
The means used for detention need not be physical (see Bird v Jones (1845)). An assertion of authority, for example, “you’re under arrest”, is enough.
Detention short of actual arrest may constructively amount to a complete deprivation of liberty. For example, where you are told (or led to believe) that you are obliged to remain to assist the police. (Warner v Riddiford (1858)).
There is no minimum period of detention for a claim to succeed although the length of detention has a bearing on the level of compensation.
False imprisonment is actionable in itself.
This means that the Claimant does not need to have suffered any damage or be aware of the false imprisonment, although damages in such cases will be no more than nominal. (Murray v Ministry of Defence 1998) This also applies to cases where, on the balance of probabilities, the Claimant would have been detained if lawful policy and procedure had been followed.
2. Lawful Authority in Wrongful Arrest Claims
Once the Claimant proves that they were detained, the burden of proof shifts to the police to establish that there was lawful authority for that detention.
The most common defence open to the police is that they were carrying out a lawful arrest.
Sections 24 and 28 of the Police and Criminal Evidence Act 1984 (“PACE”) show that the following conditions for a lawful arrest (without a warrant) are necessary:
(i) the arresting officer honestly suspected the arrested person was involved in the commission of a criminal offence (“the subjective test”)
(ii) the arresting officer held that suspicion on reasonable grounds (“the objective test”)
(iii) the arresting officer’s reasons for effecting an arrest amount to a reasonable belief that the arrest was necessary, usually to allow the prompt and effective investigation of the offence or of the conduct of the person in question (“the necessity test”)
(iv) the officer informed the arrested person of the fact and grounds of arrest as soon as reasonably practicable (“the section 28 test”)
(v) the arresting officer’s exercise of his or her discretion to arrest was reasonable in public law terms because PACE confers a discretion, not a duty to arrest. (“the Wednesbury test”).
(i) Honest Suspicion & (ii) Reasonable Suspicion
Both the subjective and objective tests must be considered when assessing suspicion.
For honest suspicion, the court will consider whether:
- the arresting officer honestly suspected in his or her mind at the time of arrest (this is the objective test) that,
- the arrested person was involved in the commission of an offence (this is the subjective test).
But what is “suspicion” in unlawful arrest cases?
Lord Devlin said:
“suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: I suspect but I cannot prove.”
(Shaaban Bin Hussein v Chong Fook Kam (1970))
A simpler definition is that reasonable suspicion is more than a hunch but less than proof.
Whether that suspicion is reasonable will depend on an assessment of what information was in the mind of the arresting officer at the time of arrest. This is the objective test as outlined in O’Hara v Chief Constable of the RUC (1996)
Lord Justice Hughes expanded on these definitions in Buckley and others v Chief Officer of Thames Valley Police (2009) when he said that:
“Suspicion is a state of mind well short of belief and even further short of a belief in guilt or that guilt can be proved.”
He also said in Buckley that:
“an arresting officer may rely on what he had been told by others who may be civilian informants, reliable or unreliable, or other officers, providing that the information thus assembled provides reasonable grounds for suspicion.”
So it is irrelevant if the arrested person actually committed the offence.
A police officer can be completely mistaken (e.g. relying on a mistaken identification given by a witness) and the arrest can still be lawful. The issue would be whether the officer’s reliance upon that identification was reasonable.
What happens to suspicion when the suspect provides an explanation?
If, when challenged by the police, the suspect provides an explanation then the officer should take this into account in deciding whether their initial suspicion can be maintained or remains, based on reasonable grounds. (Again, see Buckley v Thames Valley Police .)
This is especially relevant in police warrant claims where, for example, a wrongfully issued arrest warrant can be easily explained and quickly checked by the police.
Read this arrest warrant claim case report to find out how we helped an innocent man claim compensation after his false imprisonment in these circumstances.
(iii) Necessity of Arrest
Necessity also has subjective and objective tests.
The test is whether:
- the police officer actually believed
- that the arrest was necessary, and
- that it was necessary for a section 24(5) PACE reason; and
- that objectively that belief was reasonable.
Usually the police rely on s.24(5)(e) of PACE. This states that an arrest is necessary:
“to allow the prompt and effective investigation of the offence”.
The 2015 case of B,N,O,Q,R,U,V v The Chief Constable of the Police Service of Northern Ireland confirmed that, where the police use this section of PACE, necessity for arrest must shown as both “prompt” and “effective”, rather than just one or the other. And the Court in that case said “‘Effective’ is not the same as efficient or, for example, cost-effective. It means tending to achieve its purpose.”
The Court’s assessment of necessity will depend on what information was in the mind of the police officer at the time of arrest. (See Hayes v Chief Constable of Merseyside Police (2011))
Another recent illustration of this test being applied is the decision of Mr. Justice Eady in Lord Hanningfield of Chelmsford v Chief Constable of Essex Police (2013). According to the judgment, the Claimant was arrested by police “investigating allegations of fraud by abuse of position relating to expenses claimed when Lord Hanningfield had been leader of the Essex County Council. Those allegations were ultimately not pursued.”
Applying the two-stage test, the Court found that:
- although the arresting officers believed that the arrest was necessary to allow a prompt and effective investigation,
- their belief was not objectively reasonable in the light of what they knew.
As Mr. Justice Eady said,
“I have come to the conclusion that the requirement of “necessity” as laid down by Parliament has not, on any realistic interpretation of the word, been met.
Summary arrest was never going to have any impact on “the prompt and effective investigation” of Lord Hanningfield’s credit card expenses.
It is not for a judge to second guess the operational decisions of experienced police officers, but in the circumstances of this case I cannot accept that there was any rational basis for rejecting alternative procedures, such as those adopted successfully by the Metropolitan Police.
There were simply no solid grounds to suppose that he would suddenly start to hide or destroy evidence, or that he would make inappropriate contacts.
There was only the theoretical possibility that he might do so.
I can, therefore, see no justification for by-passing all the usual statutory safeguards involved in obtaining a warrant.”
Lord Hanningfield received £3,500 compensation for the wrongful arrest, search, and detention.
(iv) Informing the Arrested Person (the section 28 test)
Section 28 of the Police and Criminal Evidence Act demands that upon arrest, or as soon as reasonably practicable thereafter, the police officer informs the suspect of
- the fact, and
- the grounds for arrest.
Failure to do so renders the arrest unlawful.
This must be done even if the fact of the arrest is obvious (e.g. even when an officer handcuffs the arrested person).
In Taylor v Chief Constable of Thames Valley Police (2004) the Court of Appeal clarified the law and said that, for the purposes of s.28(3) of PACE, the person arrested must be told in simple, non-technical language that s/he could understand, the essential legal and factual grounds for his arrest.
(v) The Wednesbury Test
Finally, in this section on Lawful Authority, the Wednesbury Test must be satisfied.
This limb of the test for false imprisonment has traditionally been relied on where:
- it is accepted that the other tests are satisfied (i.e. reasonable suspicion) but that notwithstanding, the arrest is unlawful; and
- because the officer failed to exercise his discretion to arrest lawfully in a public law sense.
In Plange v Chief Constable of South Humberside (1992) the Court considered the Wednesbury Test.
In that case, before effecting an arrest, a police officer was aware that a victim had accepted an apology from the alleged offender.
Even though the victim had confirmed he would not be pressing charges the officer proceeded with the arrest regardless, falling foul of the Test.
In practice, the Wednesbury Test is rarely used when assessing Lawful Authority in false imprisonment cases.
Continued Detention and Unlawful Arrest
Even if arrest and detention is deemed lawful initially it may subsequently become unlawful.
The burden is on the police to show that the detention was lawful “minute by minute” because, as Lord Donaldson said in 1991 in Mercer v CC Lancashire:
“what may originally have been a lawful detention may become unlawful because of its duration or of a failure to comply with the complex provisions of the Police and Criminal Evidence Act 1984.”
The Role of the Custody Officer in Continued Detention
When a person is arrested other than at a police station, he or she must be taken to a police station as soon as possible after the arrest.
As soon as possible the Custody Officer must determine if there is sufficient evidence to justify a charge. If so, the arrested person may be detained for such period as is necessary, subject to statutory limits (see below).
If the Custody Officer feels that there is insufficient evidence, then the suspect’s further detention should only be authorised if:
- there are reasonable grounds for believing that detention is necessary to secure or preserve evidence relating to an offence for which the suspect is under arrest, or
- to obtain such evidence by questioning.
Otherwise, the suspect should be released (with or without bail).
Length of Detention
Once detention is authorised, generally the suspect cannot be held for more than 24 hours.
The period can be extended up to 36 hours where an officer of the rank of Superintendent or above has reasonable grounds for believing that:
- detention of the person without charge is necessary to secure or preserve evidence by questioning; and
- the offence is an indictable offence; and
- the investigation is being conducted diligently and expeditiously.
A warrant of further detention can be obtained from the court for the reasons set out above for a further period of up to 36 hours.
This can be extended by another application to the court for the same reasons.
However, this extra period cannot be longer than 36 hours nor can it end later than 96 hours from when detention was first authorised at the police station.
False imprisonment is just one head of claim in actions against the police. Read about others here.
On this site you can also look at:
- remedies in claims against the police
- calculating your police abuse compensation
- time limits for police claims
- no win no fee police claims
- information your police misconduct solicitors need to help you win your claim.
- why you should use us.
And note that we can help you claim compensation against the police and other detaining bodies, such as shop security staff, magistrates’ court security staff etc. when they have acted outside their powers. (Read this case study about using solicitors specialising in actions against the police to find out more.)
For more information about bringing your own actions against the police claims call us on 08000 124 246 or complete the online form on this page.
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