HE was enjoying an innocent night out in York city centre when police arrested him for the vicious assault of a taxi driver.

Anthony Birkitt insisted he was innocent and had an alibi, but then spent the next two-and-a-half months in custody.

He only won his freedom back when DNA evidence proved his innocence, and charges were dropped.

Today the 31-year-old revealed he was suing North Yorkshire Police over his arrest and imprisonment.

He spoke out after two men who did take part in the assault were jailed at York Crown Court last week.

Adam French, 21, formerly of St George's Place, off Tadcaster Road, York, was imprisoned last week for two and a half years and his friend Timothy Walker, 29, of Radford House, Windsor Garth, York, was given two years for joining in the assault in Clifford Street, York on January 19, 2006.

Mr Birkitt said today: "If it hadn't been for the DNA I would be doing their time for them. It was bang out of order."

"It's boring in a police cell - and it's 100 times worse when you haven't done anything.

"You know you haven't done anything and you shouldn't be there."

Mr Birkitt, of Tuke Avenue, Tang Hall, York, said he had been out with friends, ending up drinking at Yates Wine Bar in Low Ousegate.

"When I walked out, they (the police) arrested me. I was in shock," he said.

He added that two of the friends he had been with were also arrested the same evening, also on suspicion of being involved in the attack - Stephen Broadhead and Terry Ratcliffe. Neither was charged with any offence, though both were on police bail for a time.

He told detectives he had an alibi and provided details of his night out - but they charged him with causing actual bodily harm and affray.

"They told me they had a witness and that was enough," he said.

Police sent him to York Magistrates Court, where, at the prosecution's request, he was remanded in custody.

"I was depressed. They just put me in prison - they didn't investigate," claimed Mr Birkitt.

He stayed in prison until March 16, when his solicitor Mark Thompson persuaded magistrates to give him bail.

But it was not until April 24 that the Crown Prosecution Service formally dropped charges.

York Crown Court heard last week that police sent the taxi driver's shirt to a forensic scientist to check for DNA because the attacker bit him.

The scientist did find DNA - but it wasn't Mr Birkitt's - it was French's.

Police arrested French who immediately confessed to the attack - and implicated his friend Walker. Both appeared before York Magistrates Court the same week as the prosecution dropped the charges against Mr Birkitt.

When French and Walker were sentenced, Chris Smith, prosecuting, told York Crown Court that police arrested Mr Birkitt because a doorman identified him, he was in the area and he fitted the description of one of the attackers.

A North Yorkshire Police spokesman confirmed today the force had received a civil claim from Mr Birkitt, but could not comment further as the matter was at an early stage.