A civil claim involves arguing that the police violated your private rights in court. 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.
Before you bring a civil claim against the police, you should consider the advantages and disadvantages of brining such a claim:
| ADVANTAGES | DISADVANTAGES |
|---|---|
| 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. |
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 detention by the police.
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 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:
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.
Once you prove this, the defendant (e.g. the relevant authority) must then prove that there was a justification for your detention.
To do so, the defendant will need to show that your detention was in accordance with national law. This will depend on whether the legal framework and procedures that relates to detention in your country was complied with (see the relevant sub-sections on the legal framework related to the issue in your case). For example:
When it comes to the level of compensation, you will also need to show that the false imprisonment caused you loss or damage.
What does it mean to cause damage or harm?
In this context, the damage or harm can be either physical, mental or financial.
- 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.
- Note down all impacts of the detention on your personal life (e.g. loss of house or job, family difficulties etc)
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:
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:
When might the police owe me a duty of care?
If you are put in detention, it is likely the police force owe you a duty of care:
- They have assumed responsibility for you; and
- It is foreseeable that you would suffer financial harm or mental distress if you are unlawfully or arbitrarily detained.
The fairness and reasonableness of the duty is a question for the courts to determine, but they generally take into account policy considerations such as whether imposing a duty of care on the police authority would encourage the police to maintain higher standards of practice and follow procedure correctly or, in the alternative may set a precedent allowing others to come forward and seek claims against the police for similar actions.
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 detained you in breach of the law.
Although you are not enforcing the laws on criminal procedure and police powers directly, these will be important in proving a breach of the duty of care (see the legal framework in the relevant issue section).
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 have 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. An example would be where the police had a duty to inform you of the charges against you in a language that you understood but failed to do so.
This is the same as for false imprisonment.
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:
Civil claims can generally only be brought by the person whose rights have been violated. This would include, for example, the person who was detained.
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.
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.
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.
For tips on what evidence might be useful, see the evidence sub-section in the section on the issue that your case relates to.
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).
What information should I include in my claim?
In your written claim, you should generally:
- Describe the detention and the circumstances surrounding the detention.
- Identify relevant police officers or departments and explain their roles.
- The date, time and place of the arrest, the charge and any hearings.
- Explain what happened in any hearings in court.
- Identify the legal basis to your claim (i.e. what duty/law are you arguing has been broken?).
- State the reasons why you consider the detention was unlawful or arbitrary.
- Outline the evidence that supports your reasons (see below).
- Explain the consequences of the detention, and the reasons why it has caused you or other people loss.
- Explain what remedy or outcome you want.
You must gather evidence that will be accepted in court (this is called “admissible evidence”).
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:
Consider whether to notify the defendant corporation that you are going to bring a claim. In some cases, it may be unwise to do this if there's a risk the defendant will destroy important evidence and/or remove assets from the country in question.
File your case in court within the relevant time period after the harm occurred. This could involve giving the court a "claim form".
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.
The defendant will provide a "defence" which outlines their arguments They may say your version of events is wrong, argue their actions were not unlawful, or argue you cannot bring your case due to procedural reasons.
Consider whether to apply to the court to freeze the defendant's assets, force the defendant to disclose key documents/evidence in their possession, or apply for permission to use expert witnesses. Sometimes these need to be made immediately when you file your case.
There may be "interim hearings" on relating to interim applications, specific legal or evidential issues before trial. For example, the defendant may apply for your case to be dismissed before trial. This could lead to a "mini trial" to see if your case has some chance of success.
The defendant and you may be asked to exchange evidence you rely on If you are using witnesses, you will usually need to include what they are going to say in a "witness statement"
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 trial, you will present your arguments, the judge will ask questions, witnesses will give oral evidence and can be questioned by the lawyers. The court then makes its decision.
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".
The losing party generally will have the right to appeal this judgement before a higher court.
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:
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.