05. Suing the police

If you want to sue someone, you can do so only for certain reasons - what lawyers call 'causes of action'. When you sue someone, you have to show that what happened to you fits into one of these causes of action.

For example, if a police officer carried out a legal search of you on the street, and was rude and very aggressive in doing it, you would not be able to sue the police, because your complaint would not fit with one of the 'causes of action'. However, you could make a complaint against the police officer.

Also, you can sue the police only for what they have done to you personally. So you can't sue the police if, for example, you see them assaulting someone else. Only the person who was assaulted can sue. However, as someone who saw the assault, you can make a complaint if you want to.

The 'causes of action'
Below are the eight main causes of action. If you have a complaint that you think fits with one of these and you want to sue the police, you will need expert advice to be sure that you will be able to sue. The law on police powers is complicated and you should get help from a legal adviser who specialises in cases against the police (see 'Further help' for more information).

The eight main causes are:
1. assault;
2. false imprisonment;
3. malicious prosecution;
4. trespass;
5. trespass to goods and conversion;
6. negligence;
7. breaching the Human Rights Act; and
8. racial discrimination.

These causes are explained in the following paragraphs.

1 Assault

An assault (sometimes called 'battery') happens when someone touches you or uses violence against you when the law doesn't allow it. It also happens when someone makes you fear that they are about to assault you. It is not always against the law to touch someone, of course. For example, if you are walking along a crowded pavement and you brush against someone, that is not assault.

The rules on assault apply in the same way to the police as they do to anyone else. The police are allowed to use force only where the law allows them to. This includes:

• to protect someone from a crime;
• to stop someone committing a crime;
• to carry out a lawful arrest; and
• to prevent a breach of the peace.

The police also have the power to use force when they need to in other cases, including when they search someone under the the Police and Criminal Evidence Act or the Terrorism Act.

Even when the police are allowed to use force, they commit an assault if they use more force than is reasonable in the circumstances. So, for example, if you were legally arrested, but then the police restrained (held) you with more force or for longer than they needed to, you could sue the police for assault.

When a search becomes an assault
You can sue the police for assault if they search you when:  

• they don't have the power to; or
• they don't follow the right procedures when they search you.

When are the police allowed to stop and search?
The police have the power to search you on the street when they have a good reason to believe that you:

• have items on you that are stolen;
• have items on you that could be used to steal, commit a burglary, take a car or commit deception or criminal damage;
• have a weapon on you; 
• have drugs on you; or
• are a terrorist.

There are also times where they are allowed to search you even if they don't have a good reason to suspect you of any of the above things. They are:

• because they have good reason to think there will be serious violence nearby; or
• to stop someone committing a terrorist act.

However, in these two cases, a senior police officer must have authorised this (agreed that such searches should happen). 

What is the procedure for stop and search?
The procedures the police have to follow when they search you include:

• gving you some proof that they are a police officer, if they are not in uniform;
• giving their name and the police station they are from;
• telling you why they are searching you; and
• (in most cases) telling you that you have a right to have a copy of the search record.

When the police stop and search you on the street, they may hold you for only a few minutes. You may be able to sue them for false imprisonment if you are held for more than a few minutes without a good reason.

What about searches under arrest?
If you have been arrested, the rules on when you can be searched are different. The police are allowed to search you:

• if they have a good reason to believe you may be a danger to yourself or to someone else;
• to check whether you have anything on you that will help you to escape;
• to check whether you have anything on you that may be evidence of a crime; or
• if they need to check what belongings you have on you at a police station.

When is a strip search an assault?
Special rules apply to strip searches. Strip searches should be done by someone of the same sex as you, and they should be done in private. There should usually be at least two other people there with you. A strip search won't always mean the police will touch you (the police simply tell you to take off your clothes). So you may be not be able to sue for assult if the police strip search you when they are not allowed to. However, you may be able to sue the police under the Human Rights Act instead, for breach of your right to respect for your privacy. You will need expert legal help to know whether you will be able to do this. See the Community Legal Service Direct leaflet, 'The Human Rights Act', for more about this.

2 False imprisonment and wrongful arrest

You can sue the police for false imprisonment if they detain you when the law doesn't allow them to.

What is detention?
You will be detained if:

• you are arrested;
• the police stop you in the street and make it clear that you cannot leave (for more than a few minutes); or
• after going voluntarily to the police station you decide to leave, but the police won't let you go.

If the police arrest or detain you, they have to be able to prove that the law allows them to do this.

When is an arrest legally justifiable?
The law says there are two types of offence:

• arrestable offences, which are the more serious type and include theft, taking a car without the owner's permission, and 'affray' (using or threatening violence); and
• offences you can't be arrested for, which include most driving offences. These are called 'non-arrestable offences'.

The police can arrest you if they have a good reason to think that you are:

• committing an arrestable offence;
• about to commit an arrestable offence; or
• guilty of an arrestable offence.

The police can arrest you for a non-arrestable offence only if they have a good reason to think you have committed an offence and one of several conditions applies. These conditions include:

• they don't know your name and can't easily find it out;
• they have a good reason to think the name you have given is false;
• you haven't given an address that is good enough to send a summons to; or
• they have good reason to think the address you have given is false.

When a court decides if a police officer had good reason to think something, it will look at whether:

• the police officer truly thought it; and
• because of what they knew at the time, it was reasonable for them to think it.

The police can also arrest you:

• to stop a breach of the peace; or
• when they think a breach of the peace is about to happen.

Finally, the police can arrest you if a court has issued an arrest warrant for you. If a police officer arrests you and you are the wrong person, you can sue them for false imprisonment. However, it is not the fault of the police if you were arrested because the court that issued the warrant made a mistake. In this case, you may be able to sue the court.

If you are arrested, the police have to tell you why. If they can't do this straightaway, perhaps because you are violent, they have to do it as soon as they reasonably can - otherwise the arrest is illegal.

When you can't legally be detained after being arrested
If you have been legally arrested, your arrest can become illegal if:

• there is no longer any reason for keeping you under arrest;
• you aren't charged even though there is enough evidence to charge you; or
• the police don't follow the rules set out in the Police and Criminal Evidence Act, which say when and how often they should look at whether you should continue to be detained.

'Habeas corpus'
If you have been detained illegally by the police, your family or friends can ask to have you released by what is called 'habeas corpus'. This is the name given to the order that the court can make to release a person in certain circumstances. This involves a different procedure to suing the police and you should consult one of the organisations listed in 'Further help'.

3 Malicious prosecution

Many people go to court for offences and are not found guilty. You cannot automatically claim compensation when this happens. You can claim compensation only if you can show you have been a victim of a malicious (deliberately harmful) prosecution. You have to show all four of the following things to be able to claim compensation.

The prosecution caused you damage or harm
You have to show that:

• you were charged with an offence that you could be sent to prison for;
• being prosecuted damaged your reputation; or
• defending the case cost you money.

You 'won' your case
You win your case if:

• you were found not guilty after a trial;
• the case was dropped before it got to trial;
• the magistrates would not send your case to the Crown Court for trial; or
• you were found guilty, but won your case in an appeal.

The police did not have 'reasonable or probable cause' to prosecute you
You have to prove that:

• the police didn't believe you were guilty; or
• there wasn't a good reason for the police to believe that you were guilty.

In most cases it is difficult to show these two things.

The police acted 'maliciously'
You have to prove that the police prosecuted you for an unacceptable reason. Sometimes you can do this by referring to something that a police officer said. Sometimes the circumstances make it clear that the police can't have been acting properly.

As well as claiming for malicious prosecution, you can get compensation for a miscarriage of justice if you were found guilty of a crime, and new facts have come to light which show that the conviction was a miscarriage of justice.

4 Trespass

You can sue someone for trespass if they come into your property without your permission when the law doesn't allow them to. This includes a rented property if you are the tenant, and property you own. You can also sue someone you have let into your house or flat if they don't leave when you clearly ask them to. If you aren't the owner or tenant, you may be able to sue for trespass if it is clear that the owner or tenant gave you the power to stop people from coming in.

The same rules apply to the police. You can sue the police for trespass if they go into your property and:

• they don't have permission; and
• the law doesn't allow them to.

When can the police enter a property to arrest someone?
The law allows the police to go into private property to arrest you:

• under an arrest warrant issued by a court;
• for an arrestable offence; or
• if you have escaped from prison or anywhere else where you were legally detained.

In each of these situations, the police must have a good reason to believe that the person they are looking for is in the property. They can search the property only to check whether the person they are looking for is there.

When can the police enter a property to carry out a search?
The law also allows the police to go onto private property to carry out a search in such situations as these:

• A court has granted the police a search warrant.
• You have just come from the property, the police have arrested you, and they have a good reason to think there is evidence there relating to the offence you have been arrested for.
• The police have arrested you for an arrestable offence, and the property is your home or a place you control (your business, for example).

In this last case, the police have to have a good reason to think that there will be evidence in the property relating to the offence for which they have arrested you or evidence of a similar or related offence. The police normally have to have a police inspector's permission to carry out such a search.

Why else can the police enter a property?
The police can also enter private property to:

• save people from being killed or injured;
• stop the property being seriously damaged; or
• stop a breach of the peace.

5 Trespass to goods and conversion

If someone damages or interferes with your property, you can sue them for 'trespass to goods' or 'conversion'. You can also sue them if they refuse to give your property back to you when they are not legally allowed to keep it.

When can the police take my belongings?
The law gives the police wide powers to take and keep people's belongings. In particular, they can take and keep property if they have a good reason for thinking the property may be the proceeds of crime (such as stolen goods) or evidence of an offence.

The police are allowed to keep your property only for as long as they need to. This can include when they want to use the item as evidence at a trial - though they shouldn't hold onto something if a photograph or a copy would do. They can also keep something when they want to work out who the true owner is.

How can I get my belongings back?
If property is taken from you after you have been arrested, it should be given back to you when you are allowed to leave the police station. The police can hold onto it only if they have a reason for thinking that it is the proceeds of crime or evidence of an offence.

If you sue the police for interference with your property and you win your case, you can expect to get compensation, as well as getting your belongings back. If you just want your belongings back, you can take out a summons in the magistrates' court under the Police (Property) Act 1897.

6 Negligence

You can sue someone for negligence if they cause you harm or damage when they should have been taking care not to. This is the cause of action you would use if you wanted to sue someone for injuring you or damaging your car in a car accident, for example.

When can I sue the police for negligence?
The law allows you to sue the police if they are negligent in the way they carry out their normal work. So, for example, you can sue the police if a police car knocks you down.

You cannot normally sue the police if they are negligent:

• in the way they carry out an investigation; or
• when deciding wheter or not to protect someone.

However, the rules are very complicated and you should get advice from a lawyer who is an expert in taking legal action against the police.

7 The Human Rights Act

Under the Human Rights Act 1998, you can sue the police if they act in a way that breaches your rights under the European Convention on Human Rights. For more about this, see the Community Legal Service Direct leaflet, 'The Human Rights Act'.

8 Racial discrimination

The police must not discriminate against people because of their race. If the police discriminate against you in this way, you can take action against them under the Race Relations Act 1976. For more about this, see the Community Legal Service Direct leaflet, 'Racial Discrimination - Your legal rights'.