In 2015, the last year for which official statistics exist, there were 896,209 arrests in England and Wales. Day in, day out the police and security forces do invaluable work in apprehending criminals and as a result ensure the well being of the law abiding. However, not every arrest is legal and there may upon conviction be a miscarriage of justice.
One of the modern cornerstones of UK law is the Human Rights Act which guarantees certain freedoms, including the right to go about your daily life unimpeded by the state. This written law is a reflection of the earliest laws enacted concerning the rights to have a fair trial and not to be summarily arrested nor imprisoned.
However diligent the police and judiciary are, on occasions mistakes get made. In general terms any deprivation of liberty even for a very short period of time which could be minutes, must be justified. If it cannot then an actionable wrong has occurred for which monetary compensation is payable. Sometimes this is called wrongful arrest, unlawful arrest or false arrest. Whatever the term used, the essence of the case is that the person claiming damages has been detained, prevented from going about their lawful business and that the detention could not be legally justified. Establishing a case is a two-step process.
The Claimant must prove they were detained.
This sounds straightforward enough, but detention doesn’t just mean taken to a police station. You could for example be detained at the roadside when stopped whilst driving or anywhere else for that matter. Once detention has been established, the onus then falls upon the police (or other person who is responsible for the detention) to prove the detention was lawful. What is or is not lawful is usually a matter of fact, backed by laws that govern when police or other officials can detain someone against their will. Usually there has to be a reasonable suspicion an arrestable offence has taken place or that there is an honest suspicion the person detained had committed an offence. Should neither exist then compensation is payable. Where during the arrest force was used or the person was publicly arrested or otherwise humiliated such as by strip searching, these are aggravating features taken into account when assessing damages.
We often hear about miscarriages of justice where someone has been convicted by Judge and Jury and thereafter has spent maybe months or years in prison only for the conviction to be overturned. You would think that following acquittal of a charge or subsequent quashing of a conviction that compensation would be automatic. Unfortunately, this is not the case at all. If the arrest itself was lawful, then from the start the detained person is a suspected criminal. Detention beyond 36 hours is subject to strict regulation which includes a judicial process to ensure that rights are not impinged.
The burden of proof in criminal cases is that the Crown must prove the charge “beyond reasonable doubt”. In other words, the Court must be convinced of guilt. Once a person is convicted, then the Defendant has to establish innocence. On rare occasions this occurs when fresh evidence comes to light which “casts doubt” upon the security of the original conviction. This fresh evidence in itself might be so compelling that innocence is clearly established, but in most cases the new evidence simply imparts “reasonable doubt”.
If you are looking to claim damages for wrongful conviction, what the law says is that in the situation where you are subsequently found innocent, there is a reversal of the usual burden in civil cases.
Normally a Claimant has to prove their case “on a balance of probabilities” ie that more probably than not something is the case.
With a wrongful conviction this should mean that you probably should not have been convicted. Unfortunately, this is not however the case. Instead, to establish a valid claim, the Claimant must demonstrate “beyond reasonable doubt” that they did not commit the offence for which they were subsequently exonerated. This legal test is a very high bar to surpass and means that in the vast majority of cases where a prosecution has failed, or an appeal has succeeded then no compensation is payable. The law in this area is however very complex and each case is very much fact specific.
Worth mentioning is that the law relating to false imprisonment does not just apply to the police and security forces. Any person depriving another person of their liberty must do so lawfully. This would include medical staff certifying someone as mentally incapable and therefore requiring secure hospitalisation, a teacher imposing detention on a pupil or a security guard arresting a suspected shop lifter.
If you believe that you may have a case for wrongful arrest and/or false imprisonment then action should be taken promptly since in some cases the time limit to claim is limited to one year from the date of the arrest.
The author of the article is our solicitor -
Chris Germain, who is also Legal Director in Optimal Solicitors.