False Imprisonment & Wrongful Arrest

What is False Imprisonment?

False imprisonment arises where a person is deprived of their liberty without lawful justification. It has been defined as a “total restraint on liberty” (Bird v Jones [1845] 7 QB 742).

It can arise in a number of circumstances, including wrongful arrests, unlawful stop and searches, and where a person is detained for longer than the law permits.

Wrongful Arrests

What is a wrongful arrest?

In law, any non-consensual detention of a person is unlawful by default and amounts to “false imprisonment”. But it is a defence for the police to prove that the detention was lawfully justified – for example, in the course of a lawful arrest. Meaning, police must be able to justify how and why they arrested you, or the arrest is unlawful.

Who has to prove what?

In most civil cases, the burden of proof rests with the person bringing the claim. However, in a false imprisonment claim, you only need to prove you were detained. The burden then shifts to the police to prove that that the detention was lawfully justified.

Arrests with a warrant

If you are arrested pursuant to a warrant, as long as you are the subject of that warrant, the arrest is usually lawful. The arresting officer does not have to prove “reasonable grounds for suspicion.”

In the same way, if you are not the subject of the warrant, then the arrest is unlawful – even if the mistake was perfectly reasonable.

The police must also show you the arrest warrant, otherwise the entire arrest will be unlawful (Bhatti v Commissioner of the Police of the Metropolis [2010] EWHC 522).

Arrests without a warrant

When an arrest is not made under a warrant (often called a “summary arrest”), the power comes from Section 24 of the Police and Criminal Evidence Act 1984 (“PACE”).

There are two requirements for such an arrest to be lawful: reasonable suspicion and necessity.

Reasonable Suspicion

The officer must honestly suspect that you are committing, have committed, or are about to commit an office. The officer must hold that suspicion on objectively reasonable grounds.

“Suspicion” is a low threshold. The House of Lords in Hussein vs Chong Fook Kam [1970] AC 942 said it means:

“A state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’”

The suspicion must be the arresting officer’s own, not a colleague’s or superior’s, and be based on the facts known to them at the time, not those which come to light subsequently.

Necessity

In addition to having reasonable grounds for suspicion, the officer must honestly believe (a higher threshold than mere suspicion) that the arrest is necessary for at least one of the reasons in Section 24(5) PACE 1984. That belief must also be objectively reasonable.

The reasons in Section 24(5) PACE 1984 are:

• To establish your name
• To establish your address
• To prevent you from:
  • Causing physical injury to yourself or others
  • Suffering physical injury
  • Causing loss or damage to property
  • Committing an offence against public decency
  • Obstructing the highway
• To protect a child or other vulnerable person
• To allow a prompt and effective investigation
• To prevent you from disappearing

“Necessity” is to be taken as its ordinary meaning; it is a higher threshold than simply what is “desirable” or “convenient.”

Police often rely on “prompt and effective investigation”, but they should still consider less intrusive alternatives, such as a voluntary interview. In Commissioner of Police v MR [2019] EWHC 888 (QB), an arrest was found unlawful where the claimant had attended the police station voluntarily and was arrested in the foyer without good reason.

What the Police Have to Tell You on Arrest (And What They Don’t)

When you are arrested, the arresting officer is required to tell you:

1. That you are under arrest (even if this appears obvious); and
2. The specific grounds for that arrest.

“Grounds” means more than simply naming the offence – it requires clear details such as when and where the alleged offence occurred, so that you can understand why you are being arrested and respond immediately you wish to.

A failure to provide this information may breach Section 28 of PACE, and could render the arrest unlawful until the information is given.

It is a common misconception that police have to “read you your rights” for an arrest to be lawful. In the UK, the police caution (known as the “Miranda rights” in the US) notifies you of your right to silence. While a failure to say it may affect future criminal proceedings, it does not make the arrest itself unlawful.

Continued Detention

Once you are taken to a custody suite, your detention must be authorised by a custody officer (of the rank of at least Sergeant).

The custody officer must consider:

• Whether there is enough evidence to charge you
• If there is not, whether it is necessary to detain you

The following time limits apply:

• 24 hours initially
• Can be extended to 36 hours by a senior officer for indictable offences
• Can be extended up to 96 hours by a magistrate
• For terrorism offences, separate and longer time limits apply

Further, you can be detained only as long as:

1. There remain reasonable grounds to suspect you are guilty, and
2. The detention is necessary to “secure or preserve evidence” or to “obtain evidence by questioning.”

The burden is on the police to show that the detention was lawful “minute by minute”. Lord Donaldson said in Mercer v Chief Constable of Lancashire [1991]:

“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.”

If you are detained beyond the lawful limits, or without good reason, this may amount to false imprisonment – even where the initial arrest was lawful.

Unlawful Stop and Searches

The police have powers to stop members of the public and search them for prohibited items.

The most common stop and search powers in England and Wales are:

1. Section 1 Police and Criminal Evidence Act 1984: Allows an officer to search any person or vehicle in a public place if he has reasonable grounds to suspect they are in possession of stolen or prohibited articles, offensive weapons, bladed articles, or items for use in burglary, theft, criminal damage, fraud, or offences under the Criminal Damages Act.

2. Section 23 Misuse of Drugs Act 1971: Allows an officer to search any person or vehicle in a public place if he has reasonable grounds to suspect they are in possession of controlled drugs.

3. Section 60 Criminal Justice and Public Order Act 1994: Allows searches without suspicion in a designated area where serious violence is anticipated. Must be authorised by an officer of at least Inspector rank, and usually lasts for 24 hours (although this can be extended by a superintendent).

Before carrying out a stop and search, an officer must give certain information (s.2(2) and Code A of PACE). This is often remembered as GOWISELY:

• Grounds – why you are being searched
• Object – what they are looking for
• Warrant card – if in plain clothes
• Identity – the officer’s name
• Station – the officer’s police station
• Entitlement – your right to a copy of the search record
• Legislation – the law they are using (e.g. s.1 PACE, s.23 MDA)
• You are being detained – confirmation that you are not free to leave

Failure to comply with these requirements can make the search unlawful.

Breach of the Peace

Under common law, police have a right to arrest somebody for, or to prevent, a breach of the peace.

Breach of the peace involves harm to a person or (in their presence) their property, or some other form of violent disorder or disturbance. It is not a criminal offence and cannot lead to a caution, charge, or conviction.

The right to arrest arises where breach of the peace has occurred in the presence of the officer making the arrest, or where the officer has reasonable belief that it will occur in the immediate future.

Detention must only be for as long as is necessary to prevent the breach of the peace. You must be released as soon as the risk of a breach has passed.

In certain circumstances, the police can bring the arrested person before the Magistrates’ Court for consideration of whether a “bind over” should be issued – usually a promise to not breach the peace again, at risk of a financial penalty.

Make A Claim for False Imprisonment

We pride ourselves on helping our clients with the issues that matter most. That includes making sure the police are held accountable if they’ve treated you unfairly.

Our expert police claim solicitors are here to help you. We can offer you:

• No win no fee service
• We cover England & Wales
• Clear, easy-to-understand advice throughout the whole process

Call us on 01925 351 350 to get started with your claim.