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How Can I Bring a Civil Claim against the Police?

A civil claim involves arguing that the police violated your private rights in court. Unlike a complaint to an ombudsman, if successful, you will generally be awarded compensation for the harm you suffered as a result of the relevant authority’s breach of your rights.

Unlike a criminal case, the purpose of a civil case is to compensate the person who has been harmed, rather than to punish the relevant authority. If you haven’t suffered a clear form of loss (physical injury, mental injury or financial harm), a civil claim will generally not be appropriate.

1

Is a Civil Complaint against the Police Right for Me?

Before you bring a civil claim against the police, you should consider the advantages and disadvantages of bringing such a claim.

ADVANTAGESDISADVANTAGES
You may be able to get a remedy to compensate you for your loss or harm.National law may allow the police to act in a way that is not compliant with international or human rights principles, so you may not be able to get a remedy.
Making a complaint makes your concerns official, and a record will be made of those concerns and kept by the police force.A civil claim will not challenge the legality of a national law or policy, if this is the problem.
Your complaint might help other people making complaints against the same officer to show a pattern of abuse or misconduct.When responding to a complaint, the officer involved may make allegations about your own behaviour in order to justify their actions, which can be upsetting.
The threat of compensation can act as a deterrent and lead to policy change in the police force.Unless you can access legal aid or get financial support, bringing civil claims can be expensive.
Courts are in principle independent and less likely to be biased towards the police.Civil claims can be very time consuming and you will be responsible for gathering your own evidence.
2

What Laws Could I Enforce?

You will be arguing that the police (or another relevant authority) have violated your private rights. In contrast to public law challenges (which can involve police legislation and constitutional rights), civil claims against the police will usually be based on tort law or general civil wrongs contained in your country’s civil code.

Focus Point: What Is a Tort?

A tort is a civil wrong that causes you to suffer harm or loss. Where the police commit a human rights violation, this often means they’ve also committed a tort.

We outline common examples of relevant civil wrongs or torts below. It’s key to check whether there is a relevant civil wrong in your country that could apply to unlawful or arbitrary arrest by the police.

  • Once you have outlined the facts of your case, look at the areas below and see which most closely relates to your situation.
  • Then check your national law to see what exactly the law in your country is.

Please note, that, if possible, it is always best to seek legal advice. A lawyer should be able to provide advice on the options available to you and to advise you on your chances of success.


(a) Negligence


A key tort is negligence. A relevant authority will commit negligence where its actions fall below the standard of care owed to the claimant, which causes you harm either directly or indirectly.

To bring a claim in negligence, you do not need to show that the relevant authority intended to cause the injury. It can be enough that the relevant authority acted recklessly or carelessly

To hold a relevant authority liable in negligence you have to show three key elements:

 

(i) The relevant authority owes you a duty of care

A duty of care is a standard of expected care and has been termed the “good neighbour” principle. For the relevant authority to owe you a duty of care, you will generally need to show that:

  • There is a relationship between you and the relevant authority;
  • The harm is foreseeable; and
  • It is fair, just and reasonable to impose liability on the relevant authority.

When Might the Police Owe Me a Duty of Care?

If you are put in a police car or the police apprehend you, they are likely to owe you a duty of care.

 

(ii) The duty of care has been breached

This occurs when the relevant authority falls short of the expected standard of care. This will generally turn on whether the police acted unreasonably.

When Might the Duty of Care Be Breached?

There may be a breach if the police have clearly arrested you in breach of the law.

Although you are not enforcing the laws on police powers and procedural safeguards directly, these will be important in proving a breach of the duty of care (see “What Is an Unlawful or Arbitrary Arrest?”).

If the police have acted within their powers, it will usually be very difficult to prove a breach. On the other hand, if the police have clearly outside the scope of their powers and not followed proper procedures, you may be able to prove a breach. This will not necessarily be the case by it will help demonstrate unreasonableness.

 

(iii) The police’s breach of duty caused you damage or harm

In this context, the damage or harm can be either physical or mental. If you have bruises or any visible injuries, this can make it easy to show harm. If you have non-visible injuries, try to record how you feel and how it happened by writing it down.

Remember that evidence of any injuries can greatly help your case once if you later bring a claim.


(b) False Imprisonment or Wrongful Arrest


Another type of tort is false imprisonment. A relevant authority will commit this tort where they unlawfully detain a victim.

To hold the relevant authority liable for false imprisonment, you must show that:

 

(i) You were detained

As the claimant, you will need to prove that you were imprisoned. This means that you were completely deprived of your liberty. There is no minimum period for detention under this law.

  • This will be quite simple if you have been taken into police custody.

 

(ii) There was no lawful authority to justify your detention

Once you prove this, the defendant (e.g. the relevant authority) must then prove that there was justification for your detention.

To do so, the defendant will need to show that your detention was in accordance with national law. In other words, the arrest must be within the scope of police powers (see “What Is an Unlawful or Arbitrary Arrest?”).

Even if your initial imprisonment was lawful, it may amount to false imprisonment where the length of your detention becomes excessive or procedural requirements are not complied with.

When it comes to the level of compensation, you will also need to show that the false imprisonment caused you loss or damage in the same way as negligence.


(c) Assault, Battery or Trespass Against the Person


In general, these torts are when someone:

 

(i) Uses force against you

In many systems, there is no minimum threshold of force that has to be used, but this will be relevant to the level of compensation you receive.

  • When a police officer arrests you, it is clear that a degree of force will have been used (i.e. they will have touched you).

 

(ii) The use of force was intentional

The police officer must have intended to use force. Usually, this will not be an issue.

 

(iii) The use of force must be unlawful

This is what liability will turn on. Once you have proven the above elements, the burden is on the police to show they have have acted within the scope of their police powers. If they can show this, there will be no liability (see “What Is an Unlawful or Arbitrary Arrest?”).

3

Who Can Bring a Claim?

Civil claims are brought by private individuals, who are known as “claimants” or “plaintiffs” in civil courts. To be able to bring a civil claim, you must have standing (i.e. the legal right to bring a claim).

The following people will often have standing in civil claims against the police:


(a) Affected individuals


Civil claims can generally only be brought by the person whose rights have been violated. This would include, for example, the person whose rights in connection with arrest have been violated.


(b) Group action


Certain jurisdictions permit multiple affected individuals to be represented collectively by a claimant. These are termed “group”, “collective” or “class” action.

Claimants in a group action will share an interest in the case but their precise claims and exact level of risk and remedy they are seeking may differ.

For more information on standing generally, see Who Can Take Legal Action? in the A4J Going to Court: Q&A.

4

Who Can the Claim Be Brought Against?

The defendant will be the police force or relevant authority whom you are claiming has breached your rights.

Focus Point: Police Immunity in Civil Cases

In some countries, such as the USA, police are protected from civil claims through a doctrine called “qualified immunity”. This doctrine protects police unless they have acted incompetently and knowingly acted unlawfully. This can make it very difficult to bring successful civil claims.

However, in many countries, such as the UK, police are no longer immune from civil liability.

Check if there is a similar doctrine in your country and think about what arguments can be used to get around it.

5

What do I Need to Prove?

In civil law actions, it’s the claimant who has the “burden of proof”. This means the person bringing a civil claim needs to prove their case.

  • You need to have a set of facts that describes what happened and evidence that supports your “version of events” (i.e. what you are saying happened).
  • In many countries, you have to prove your case to a standard of proof known as the balance of probabilities (i.e. you need to prove that there is more than a 50% chance what you are saying happened).

For tips on what evidence might be useful, see What Evidence Do I Need to Challenge an Arrest?.

When you have gathered evidence, your version of events and the evidence that supports it will need to be presented to the court. Usually, this will be presented in written “pleadings” or submissions that forms the basis of your civil claim (see below).

Practical Tip: What information should I include in my claim?

In your written claim, you should generally:

  • Describe the arrest and the circumstances surrounding the arrest.
  • Identify the police officer and explain their role.
  • The date, time and place of the arrest.
  • Identify the legal basis of your claim (i.e. what civil wrong are you arguing has been committed?)
  • State the reasons why you consider the arrest was unlawful.
  • Outline the evidence that supports your reasons.
  • Explain the consequences of the arrest, and the reasons why it has caused you or other people loss.
  • Explain what remedy or outcome you want.
6

What Procedural Steps do I Need to Take?

Once you have collected your evidence and conducted a legal analysis, you should be in a position to commence your claim at court.

The exact procedure you need to follow will depend upon the type of claim, the court, the procedural rules of the court and the jurisdiction in which you are bringing the claim.

However, here are some general points of procedure that you may have to follow to pursue a civil claim:

Civil Claim Procedure

  • 1

    Notification

    Consider whether to notify the defendant that you are going to bring a claim, or whether this will cause the defendant to destroy evidence or remove assets beyond the reach of the court

  • 2

    File your claim

    File or submit your case in court within the relevant time period after the arrest occurred.

  • 3

    Present your statement of claim

    Present your grounds for the claim to the court, which will be shared with the defendants. This document is referred to as a "statement of claim", "statement of case", "particulars of claim" and "complaint". These documents and your claim form will then have to be shared with or "served" upon the defendant.

  • 4

    The defence

    Defendants will then have a chance to explain their position. They can either accept all or part of your claim, or deny your version of events in full. This document is known as the "defence".

  • 5

    Disclosure

    Parties provide each other with "evidence" on which they are going to rely. The evidence may be in documentary form, electronic, or in the form of oral testimony from a witness. If the evidence is in oral form, it will generally be necessary for the main parts of this evidence to be set out in writing, in a document called a "witness statement".

  • 6

    Trial

    Once evidence has been exchanged, the court will generally notify the parties of a date for the main court hearing (sometimes called the "trial"). At the trial each of the parties have an opportunity to put forward their evidence and explain their case. Witnesses are expected to attend and are asked questions on their testimony.

  • 7

    Judgment

    Once the main trial is over, the judge will consider each of the parties' arguments and form a decision, often in the form of a "judgment".

  • 8

    Appeal

    The losing party generally will have the right to appeal this judgement before a higher court.

7

What Happens if You Win?

At the end of your trial, the judge will issue a decision on the claim. If the claim is successful, the judge will generally award a “remedy” (a court order designed to make amends for something wrong that has happened).

In civil cases, “damages” or compensation are usually awarded as a remedy. Civil law remedies could include:

  • Usually damages will be compensatory (i.e. limited to the amount of loss you have suffered).
  • In some cases, damages can be aggravated if there are “aggravating features” such as humiliating circumstances at the time of arrest or oppressive conduct of those involved.

Example: Mkwate v Minister of Police (South Africa)

Police were ordered to pay R560,000  in damages for the unlawful arrest and detention of a young boy.

The police arrested the boy as he was walking home from school, he was put in the back of a police van, handcuffed and fell around the back of the van when it was moving. He then suffered inhumane conditions of detention. The police suspected that the boy was involved in robbery but was arrested without any evidence to justify the arrest.

Such cases are increasingly common in South Africa.

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