How the police abuse the law

By Iain Gould, solicitor

I have previously written on the Andrew Mitchell affair, or what is now known in the media as “Plebgate”

According to Mr. Mitchell, other than swearing at a police officer under his breath in exasperation for the officer’s small mindedness for refusing to open the main gate of Downing Street, he did nothing wrong on the evening of 19 September 2012.

An extract from the log of the officer with whom Mr. Mitchell spoke states how Mr. Mitchell, in the presence of ‘several members of public’ said,

“Best you learn your f—— place…you don’t run this f—— government…You’re f—— plebs.”

The police officer’s log continued,

“The members of public looked visibly shocked and I was somewhat taken aback by the language used and the view expressed by a senior government official. I cannot say if this statement was aimed at me individually, or the officers present or the police service as a whole.”

Tellingly, it concluded,

‘I warned Mr. MITCHELL that he should not swear, and if he continued to do so I would have no option but to arrest him under the Public Order Act, saying “Please don’t swear at me Sir. If you continue to I will have no option but to arrest you under the public order act”. Mr. MITCHELL was then silent and left saying “you haven’t heard the last of this” as he cycled off.’

This account was corroborated by an email from an eyewitness, who claimed to be one of those members of the public looking on.

The police log and media storm that followed was enough to ensure that Mr. Mitchell’s position as Chief Whip was untenable and after a month, he relented to pressure and resigned.

Following a Channel 4 investigation, it now transpires that the independent eye-witness was in fact a serving police officer with Scotland Yard’s diplomatic protection group. Mr. Mitchell claims the man “was nowhere near Downing Street that night”.

Furthermore, CCTV footage allegedly vindicates Mr. Mitchell in that it shows him showing “no sign of any loss of temper or bodily aggression”, and given that the scene lasts only 16 seconds, “hardly time for…a full-on rant”.

And contrary to the police officer’s log, only one member of the public can be seen in the vicinity.

The Independent Police Complaints Commission is now investigating and two men have been arrested, one of whom is the serving officer who allegedly sent the email to his MP.

Similar actions against the police cases

I have previously blogged on how the police use s.5 Public Order Act to pursue unjustified prosecutions. In a recent case involving my client Mr. A, he was only accused of causing ‘harassment, alarm or distress’ when South Yorkshire Police found out that he had lodged a complaint after being attacked by a police dog.

In another actions against the police case I am pursuing to trial, Mr. X made a complaint about a police officer he saw shopping while on duty. His ‘reward’ for highlighting what he felt was a waste of police resources was to be prosecuted for using ‘threatening and abusive behaviour’, an allegation that appears to be totally unfounded in light of available CCTV footage.

And in a further matter I have, my client Mr. W was accosted by police officers as he approached a cash machine. Without explanation they took his bank card, searched him and demanded his name and address. When he complained about his treatment he was arrested, detained and issued with a fixed penalty notice for ‘using words or behaviour likely to cause alarm or distress’. Mr. W fought the charge and ultimately his prosecution was dismissed.

I am confident my clients will recover significant compensation for their actions against the police claims for malicious prosecution.

The law

Mr. Mitchell and my clients share being alleged to have acted contrary to the same section of the Public Order Act, S.5(1) which states:

‘A person is guilty of an offence if he: (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.’

As it is a two stage offence, for a conviction to stand, it has to be established that:

1. the person used threatening, abusive or insulting words or behaviour, and
2. that the said words or behaviour were within the hearing or sight of a person likely to be upset.

This often precludes the police themselves, who are expected to be made of sterner stuff. As I noted in an earlier blog post about a client of mine, swearing in the context of everyday language should not be considered ‘threatening, abusive or insulting’.

Andrew Mitchell has avoided (unlike many of my clients) a criminal prosecution. Had he been prosecuted however, he would no doubt have contested the allegation. Whilst he accepts swearing within earshot of the officer (muttering “I thought you guys were supposed to f—— help us” under his breath as he wheeled his bike into Whitehall), he would argue that such behaviour could never constitute an outrage against public decency and that the officer has deliberately exaggerated his account of misconduct.

Fortunately, he now has CCTV footage that he says discredits the officer’s version of events.

I am afraid that I routinely come across cases where police officers appear to have fabricated and or exaggerated their evidence.  Police officers often take affront when their authority is challenged (legitimately or not) and are well aware that a Court is unlikely to deem behaviour as sufficient to amount to a breach of Section 5 when the conduct is said to have been in their presence only. In the circumstances, the words and behaviour used are deliberately ‘sexed up’ and mysterious members of the public are created so as to justify an arrest/ prosecution.

Too often, police officers get away with it. There are not many who can call on evidence to prove their innocence or who have the will to challenge such behaviour.

Mr. Mitchell maintains that his life-long confidence in the police has been misplaced. He said,

‘If you had told me on September 19 that the sort of experience I have had could have happened in the country today, I would not have believed you…If it can happen to me, it could surely happen to anyone.’

As a Solicitor who specialises in actions against the police, I can assure Mr. Mitchell that his experience is not unique.