This is another type of intentional tort, involving a wrongful, intentional act causing restraint on the liberty of another person, for any period of time.
Common applications in relation to police conduct include arrests for breach of bail conditions, for example; where a person is arrested in relation to bail conditions that have previously been varied, dispensed with or are no longer in place. Also, arrests for the purposes of questioning or investigation, for which police have no power.
The elements that need to be proved are:
The defendant intentionally caused the total restraint of the plaintiff’s liberty. The restraint of liberty must be total and not merely a partial constraint of movement. However, the deprivation of liberty can be actuated by non-physical boundaries and does not require physical contact. The element will be made out where it can be demonstrated that the plaintiff felt obliged to submit to the instructions of the defendant. Where a person is arrested and taken into custody by police, an issue regarding this element will not arise.
The restraint was not lawfully justified.The only defence to an action in false imprisonment is that the restraint was performed pursuant to lawful authority. Once the restraint of liberty has been proved, it is up to the defendant to show it was justifiable or lawful.
The power of Police to affect an arrest is outlined in Section 99 of the LEPRA:
99 Power of police officers to arrest without warrant
(1) A police officer may, without a warrant, arrest a person if:
(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and
(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons:
(i) to stop the person committing or repeating the offence or committing another offence,
(ii) to stop the person fleeing from a police officer or from the location of the offence,
(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,
(iv) to ensure that the person appears before a court in relation to the offence,
(v) to obtain property in the possession of the person that is connected with the offence,
(vi) to preserve evidence of the offence or prevent the fabrication of evidence,
(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
(viii) to protect the safety or welfare of any person (including the person arrested),
(ix) because of the nature and seriousness of the offence.
The most common civil claims against police arise out of wrongful arrests, where police have acted outside their powers in performing an arrest. However, actions may also arise where the initial arrest was lawful, but the plaintiff was detained beyond a reasonable time.
How to complain
A complaint about the NSW Police Force or its employees can be made to the Commissioner of Police or the Law Enforcement Conduct Commission (LECC).
- To lodge a formal complaint with the Commissioner of Police you must do so in writing.
- You must lodge your complaint online, OR complete the Complaint Form (PDF) AND:
- lodge it or mail the complaint form to, your local police station, or
- mail the completed complaint form to the Customer Assistance Unit at P.O. Box 3427, Tuggerah, NSW 2259, or
- email your complaint form to email@example.com
- To lodge a formal complaint with the Law Enforcement Conduct Commission (LECC) go to www.lecc.nsw.gov.au. The Law Enforcement Conduct Commission is an independent statutory body responsible for investigating complaints against the police. It has its own independent investigators for these cases. Some less serious complaints will be referred to the police for investigation but, these will be monitored by the Commission’s own staff.
- In most circumstances complaints received by the Law Enforcement Conduct Commission will be referred to the NSW Police Force to investigate (subject to the oversight of the Law Enforcement Conduct Commission).
Assistance – If you need help you can contact the Customer Assistance Unit on 1800 622 571 to obtain assistance on how to lodge a complaint.
To email your complaint – firstname.lastname@example.org
Those who have been mistreated by police in most states have three main options open to them
The first is an ‘internal complaint’ to the Police Force itself. This requires you to provide as much information as possible to the police themselves. That pathway is notorious for bringing about an outcome which is favourable to police – after all, police are essentially investigating themselves.
The second option is to make a complaint to the Law Enforcement Conduct Commission (LECC), which receives thousands of complaints against police each year and is hopelessly under-resourced. What’s more, the LECC does not have the power to discipline police or make a costs order in a complainant’s favour.
This can leave victims of police misconduct feeling justifiably aggrieved.
The third option is to consider making a civil claim against the NSW Police Force.
This page outlines the law when it comes to suing police for assault, false imprisonment and malicious prosecution.
Where police act outside their powers, it may be possible to bring civil proceedings for damages arising from assault, false imprisonment or malicious prosecution.
These types of cases come under the law of ‘intentional torts’ and require the plaintiff (the person who has been harmed) to prove a number of matters before damages can be awarded.
If you believe your situation fits into one of these categories, you can contact our office for an assessment of your case where an experienced lawyer will assess your prospects of success.
The most common civil claims against police are those that involve interference to the person, which are as follows:
Reporting corruption or misconduct
The LECC encourages members of the public and public officials to report suspected serious misconduct or serious maladministration involving the NSW Police Force or NSW Crime Commission.
Anyone can report allegations of misconduct or maladministration to the LECC and you can do so anonymously if you wish. If you do provide contact details, then the LECC will be in touch to let you know it has received your complaint, and then subsequently to inform you of its decision.
If you have information about Police or Crime Commission misconduct, you should pass it on to the LECC. Timely reporting helps the LECC to deal effectively with the conduct and prevent future misconduct.
Email your complaint here: email@example.com