The ‘clang factor’ is the phrase which is often used when legal professionals are trying to describe the disturbing impact of the beginning of a period of false imprisonment upon a person – an onomatopoeic invocation of the sound of a cell door slamming shut upon your liberty. In the leading case of Thompson & Hsu v the Commissioner of Police of the Metropolis [1997] the Court of Appeal enshrined the principle that compensation for a period of false imprisonment should be assessed with each passing hour on a reducing scale; in other words the compensation awarded for the first hour of your loss of liberty will be greater than the amount awarded for your second hour of detention, and that in turn will be greater than the amount awarded for the third hour (and so forth). Applying this reducing scale, the Judges in Thompson found that for a straightforward case of false imprisonment the appropriate sum of compensation for 1 hour of detention would be approximately £1,300 (updated for inflation and subsequent Court rulings), but that rather than this being a flat rate leading to compensation for 24 hours false imprisonment of over £30,000 the reducing scale matrix would mean that the average compensation for an entire day of false imprisonment will only be around £8,000 (updated).
The reasoning behind this approach is that it is the initial shock of the wrongful deprivation of your liberty which most upsets and disturbs you (the quotation from the guidance in Thompson is as follows “The Plaintiff is entitled to have a higher rate of compensation for the initial shock of being arrested”) and that as each hour goes by thereafter the shock (or clang) factor is diminishing and you are coming more to terms with what has happened to you i.e. this infringement of your civil liberty has become less ‘painful’, blunted by the mundanity and monotony of incarceration.
There is a certain logic to this form of approach in the assessment of damages for false imprisonment, but I know from long experience talking to people from all walks of life who have suffered unlawful arrests that the ‘clang’ of the cell door is often only the beginning and not the high point of their anguish; often the reverberations of that noise echo for a long time after a person’s release, in the corridors of their mind, leading to long term mental health issues.
Or, to put it another way, handcuffs can be quickly removed, but mental chains last longer.
The question this poses, given the way that the Court of Appeal guidance on the assessment of damages is structured, is whether it is possible to get a fair compensation award for the long term effects of false imprisonment – and the answer, as I will explain below, is that it is – with the help of expert psychological/psychiatric evidence.
Wrongful arrest and imprisonment has been described as “An extraordinarily stressful psychological trauma” that can cause “serious psychological impairment” (Robert I Simon MD Bulletin of the American Academy of Psychiatry and the Law, Volume 21, number 4, 1993)
“Being unexpectedly wrenched from ones normal, expectable existence and plunged into the sheer terror of imprisonment without apparent reason is a highly traumatic experience. This extreme, abrupt discontinuity in a person’s life experience is capable of producing psychiatric disorders…”
(Simon)
Although I am not a psychiatrist, the thousands of cases of wrongful arrest which I have handled over the course of my career have left me very familiar with the mental scars which can be caused by such events and which frequently include the following –
- Flashbacks and nightmares; the rewind and replay button that you can’t control.
- The previously innocuous sound of a knock on the door becoming something which now causes a person a chilling stab of fear, if not a full blown panic attack, for the ‘go to’ assumption in the mind of a person injured in this way, is no longer that the visitor is probably a courier come to drop off an Amazon parcel, but rather the Police come to take them away.
- A lingering sense of guilt and shame, of having become socially ‘dirty’ and diminished in people’s eyes by this experience of being made a suspected criminal, irrespective of the fact that you know yourself to be entirely innocent.
- A loss of the sense of security that most of us take for granted in our lives caused by the loss of control resulting from arrest, incarceration and accusation. This can lead to long term anxiety conditions. And all of this is exacerbated if the wrongful arrest has occurred in a person’s home – turning what should be safest of safe spaces for them into the arena of their trauma, the ordinary surroundings of their home a daily reminder of what occurred.
- Unwanted personality change – in the form of feelings of paranoia, becoming ‘hypervigilant’ and anger management issues, including shortness of temper/irritability.
- Being made to feel ‘guilty until proven innocent’, in a reverse on normal expectations of societal fair play.
- Feelings of isolation/social withdrawal.
- Strain on relationships.
- Loss of faith in the law and in particular loss of trust in the Police, who have turned from being a protective to a persecuting force in the person’s life.
- Anger towards authority and a feeling of being betrayed by ‘the system’.
- Long term depression often also sets in, flowing from the helplessness and sense of injustice which people experience during those tormenting, powerless hours of fear and frustration in a cell.
- In addition, physical symptoms can flow from this psychological harm – including raised blood pressure, sweating, headaches, dizziness and nausea.
Going beyond a hampering of day to day activities and an impairment of enjoyment in life, very serious consequences flowing directly from these symptoms can include self harm, suicidal thoughts and long term absence from work, potentially causing significant financial loss and career disruption.
As Dr Robert Simon cogently observes (in the article which I have already quoted), comparing the impact of imprisonment upon hostages on the one hand and wrongfully arrested persons on the other –
“Hostages are not stigmatised because they are viewed as being unjustly imprisoned by antisocial individuals operating outside of the criminal justice system. The false arrest of a person by duly empowered authorities entrusted with protecting the public reduces and uncomfortable psychological dissonance. Thus, the person who is falsely arrested may continue to be viewed with suspicion despite his or her proven innocence”.
Any wrongful arrest is also, in effect, a wrongful accusation of criminal behaviour – even if the arrest process does not actually culminate in a criminal charge, let alone a conviction. This in itself is a deeply destabilising experience for people whether or not they have previously experienced arrest for any reason.
As another academic paper puts it –
“It is not unreasonable to assume there is an extra layer of resentment, frustration, confusion, anger and dissonance involved when the individual knows they were wrongfully accused”
(Samantha Kay Brooks and Neil Greenberg, Med Sci Law 2021 Jan: 61 (1): 44-54)
My casework has also demonstrated to me that there is a very significant difference between the experience of being arrested in a scenario in which you can come to terms with the fact that the Police were legitimately investigating a third party’s accusation against you (i.e. any malice originated from that third party) as opposed to being arrested because of malice or incompetence on behalf of the Police or the Court system i.e. where the agents of justice are themselves the bad actors and originators of the crisis.
By way of an illustration of this, I turn to a case which I have recently settled, on behalf of a client whom I will identify as Sajid.
Sajid was originally arrested in January 2023 following an accusation that he had been involved in a ‘road rage’ incident, and was thereafter detained for some four and a half hours before being released on bail.
In December 2023, the same Police Force arrested Sajid again – but this time entirely unlawfully. Sajid was informed that he was under arrest for failing to attend a Court hearing, about which he knew nothing.
He was kept in Police Custody overnight before being transferred to the Court in handcuffs, where he was further detained in the Court cells. When his case was eventually heard later that afternoon, it was established that the Court Summons had been sent to an incorrect address as a result of a Police error. My client had indeed known nothing about the missed Court hearing for which he had been arrested.
In support of Sajid’s claim, I arranged for him to be examined by a Consultant Clinical Psychologist who assessed the impact which this wrongful arrest had had upon him and determined that he had developed a condition of Specific Phobia and depression as a result of the incident.
Sajid’s mental health difficulties following the incident included the following–
- Struggling to fall asleep because he was thinking a great deal about what had happened.
- Loss of weight due to a loss of appetite presumed to be relating from stress.
- Anxiety about the Police – articulated in the phrase “They will come to get me”.
- Feelings of paranoia about the Police – that they were now “Out to get me”. These feelings of fear and paranoia were manifesting themselves in Sajid’s day to day life in such ways as him not walking his dog as often as he used to, for fear that his dog – who is not of a dangerous breed – would nonetheless be labelled as dangerous by the Police, who might then use this as another excuse to arrest him.
- Irritability and withdrawal from others and a lack of self-care, which lead to him developing an oral infection.
When I presented Sajid’s case to the lawyers acting for the Police Force they sought to argue that my client would have experienced a similar range of symptoms in any event, owing to his earlier arrest in January 2023.
I was able to cogently argue that this suggestion was incorrect. There is a world of difference between experiencing a lawful arrest (i.e. one in which the Police are acting upon an ostensibly reasonable third party allegation) and then experiencing an unlawful arrest as a result of an apparently inexplicable Police error. My client’s psychological symptoms thereafter were intrinsically tied into the shock, confusion and sense of vulnerability, persecution and paranoia which would be generated in most of us by an arrest on demonstrably false premises. Such an arrest causes a sense of instability and distortion, opening a Kafkaesque trap door beneath a person’s confidence in the fairness of the system, which a lawful arrest does not do.
Thankfully, the type of expert medical evidence which I was able to obtain in Sajid’s case not only helps to define the full extent of the psychological impact of a wrongful arrest – allowing appropriate levels of compensation to be sought over and above that laid down for loss of liberty counted only by the hours of the Custody clock (as per the Thompson guidelines), it also provides a treatment plan, in that the expert will assess how much and what form of therapy is likely to benefit the victim of a wrongful arrest best, such as Cognitive Behavioural Therapy (CBT), Eye Movement Desensitisation and Reprocessing (EMDR) or, in certain cases, the provision of appropriate antidepressant medication. The cost of such treatment on a private basis can then also be built into a negotiated settlement package. In this way, the expert solicitor and the medical expert, can help the victim of false imprisonment, no matter how long its duration, to access the treatment they need to overcome the psychological harm inflicted.
Because it is often only with the closure of a successful claim, that a person can fully escape the closing of that cell door upon them.
My client’s name has been changed
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