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24 Human Rights Act 1998
25 Suing the Police
The Act has effectively incorporated the convention in to UK law. Whereas in the past you had to go to the European court in Strasbourg to seek a remedy under the convention, the Human Rights Act 1998 was designed to “bring home” the convention, enabling people to use it directly within UK courts. This could potentially have an enormous effect on the development of case law in the UK.
From now on, wherever possible, courts must interpret both existing and future legislation so as to be compatible with articles of the convention. If the courts are unable to do this, then they must enforce the legislation anyway and issue a “declaration of incompatibility” that the legislation is inconsistent. But many commentators believe that judges will be reluctant to do this, and more inclined to interpret the law – and alter its literal meaning if necessary - so as to be consistent with the convention.
The police are also now under a duty not to act in breach of your human rights.
Section 3(1) of the Act states that, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
Section 6(1) of the Human Rights Act 1998 states that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
Police officers’ functions are of a public nature and they can therefore be sued under the Act.
Section 6 can therefore be used against the police in all manner of ways where they abuse their power. If for example they make you stop handing out leaflets outside a business premises, you could sue them for acting inconsistently with your rights under Article 10 of the convention – the right to freedom of expression.
Section 4(2) states that if the court is satisfied that a legislative provision is incompatible with a Convention right, it may make a declaration of incompatibility.
The Act could have a big influence on future judicial interpretation of public order law. Articles 10 and 11 of the convention assert the rights of everyone to freedom of expression and freedom of assembly respectively. These are not unlimited rights, of course, and Parliament may impose legislative restrictions on them for the prevention of crime, public disorder etc. But these restrictions imposed have to be proportionate to the objective being sought i.e. public disorder, crime. And if the police interpret the legislation in a way that is disproportionate to that objective, then they are acting illegally and can be sued.
Anyone who goes on animal rights demos these days will be familiar with the Section 12 and 14 orders which the police routinely use to control marches and assemblies. This legislation in itself is not incompatible with the convention. It is supposedly designed to balance the rights of protestors to demonstrate with the rights of others to go about their normal business and to be protected from crime. But nowadays the police often abuse their powers under Section 14, so as to negate entirely the effect of a demonstration. If you can show this to be the case then you can use it as a defence when charged with failing to comply with a Section 12 or 14 direction.
Similarly in the case of Section 42 of the Criminal Justice and Police Act 2001 (the legislation on home demos) the police are currently abusing the discretion granted by them in the legislation. As a result, a number of protestors have sued the police under Section 6 of the Act.
Other police powers have also already been affected by the incorporation of the convention in to UK legislation. For example, the High Court has ruled that it is illegal for the police to detain prisoners held in custody for breach of the peace, where there are no grounds for suspecting that they will cause a further breach when they are released. It has also been ruled that the Protection from Harassment Act 1997 should not be used to stifle legitimate protest, as this would be incompatible with Article 10 of the convention.
If you have been arrested and released without charge you may be able to sue the police for assault, battery, and false imprisonment. When the police arrest you they must have reasonable grounds to suspect you of an offence. Even if you’re released without charge the police may still have had good reason to suspect you – it will depend on the circumstances. Conversely you may be convicted of an offence and still be able to sue for wrongful arrest. For example you may be convicted of affray but the arrest was unlawful, because affray is not an arrestable offence.
If you have been prosecuted and had the charges dropped, you may be able to sue for malicious prosecution if you can show that the police lacked an honest belief that you were guilty of the offence.
You can sometimes sue the police even if you haven’t been arrested. If the police shove or punch you on a demo then they will be liable for assault or battery, if they did so without lawful authority or excuse – for example where a Section 14 notice was unlawful.
When suing the police, you would normally sue the chief constable of the police force in question – he is “vicariously liable” for the actions of his officers whilst in the course of duty.
The amounts awarded against the police can be considerable. If, for example, you are unlawfully detained for as little as six hours you can claim for damages of around £2,000. But if you have been unlawfully handcuffed, strip-searched or treated to any unwarranted force during the course of the arrest, you may well receive much more. The courts may additionally award “exemplary” damages against the police if it can be proved that they have abused their power or acted oppressively. If the police think you have a good chance of winning your case, they may award you out of court damages by way of a settlement.
If you think you may have grounds to sue the police, contact a solicitor who specializes in actions against the police. If you are on Job Seekers Allowance, Income Support or a low wage, you may be entitled to Legal Aid. The Legal Aid system enables claimants on a low income to sue, where they can show that they have a reasonable chance of success. You may still be able to get legal aid if you are working, but you could be asked to part fund the action yourself.
The Legal Aid board will review the case as it goes along as more evidence comes to light. If as a result of evidence presented by the defendant it appears that your case has little chance of success, legal aid will be withdrawn. Legal aid may also be refused if the costs of bringing the case exceed the amount of money you are likely to win if you are successful. So long as you have legal aid, not only will your solicitors and barrister’s fees be paid for you, but usually the defendant’s costs as well if you go to trial and lose.
You can now sue the police for breach of Section 6 of the Human Rights Act 1998, for acting in a way, which is incompatible with your European convention rights. You could do this, for example, if they moved you for obstructing the highway when leafleting outside a fur shop, as they would be disregarding your right to freedom of expression under Article 10 of the European Convention on Human Rights.
The problem with suing in situations for such relatively minor breaches however is that you will be unlikely to be granted legal aid. Without legal aid you will be liable for the defendant’s costs if you lose – thousands of pounds if the case goes to trial – even if you can afford your own legal fees or are representing yourself. There is a process known as the small claims procedure where costs are not awarded against you if you lose. But although this is generally the procedure used for claims below £5,000 it is not normally deemed to be suitable for actions against the police.
The following firm of solicitors specialise in legal actions against the police:
Irwin Mitchell Solicitors,
St Peter's House,
Hartshead,
Sheffield. S1 2EL
Tel: 0870 1500 100
Fax: 0114 275 3306
Web: http://www.imonline.co.uk
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