Choosing the Right Lawyer (Part 1)

This is a guest post by my colleague and fellow specialist in civil actions against the police, John Hagan.

Photo of John Hagan, solicitor.

John Hagan, solicitor.

When instructing a lawyer to represent you in a claim against the police it is very important that you appoint someone who has the specialist knowledge and breadth of experience necessary to achieve regular success in what can be a complex area of litigation.

There is a certain overlap between claims against the police and general personal injury cases, but I would urge you to beware of putting your case into the hands of a personal injury solicitor, who deals day-to-day with accidental injuries, and who may only be ‘dabbling’ in the area of Actions Against the Police.

Rather, you need a police misconduct claim specialist, and I am pleased to say that I have a 20 year track record of success in these cases.  The experience that this has given me and my specialist team in assessing and analysing police claims means that unlike other lawyers who are less experienced, we do not prevaricate.

If I think you have a good case then I will tell you so, and I will push ahead with the case as swiftly as possible.  Equally if I believe your case will not succeed I will tell you that as early as I can and I will tell you it straight, and I will not allow the limitation period for your claim to be used up by any faint heartedness or hand wringing on my behalf.

I would like to demonstrate these points by reference to two cases which I have recently settled for £20,000 and £15,000 damages respectively.  Both cases involved hard-fought legal battles against West Midlands Police, but I was always confident that we would be successful and was prepared to see both cases through to trial if necessary.   Prior to my involvement, as you shall see, both of my clients had in fact consulted other solicitors who, in my opinion, did not have the relevant experience or knowledge to properly analyse and progress the claims as a result of which both clients suffered from delay, indecision and eventually rejection by their solicitors who – WRONGLY – told them that their claims would not succeed…

The case of Mr EJ

My client EJ is a black man who was stopped by the police in 2011 on suspicion of drink driving.

As EJ exited his car outside his home address he was approached by 7 police officers who questioned him in a hostile and aggressive manner and almost immediately laid hands on him.  EJ attempted to talk to the officers in order to explain his point of view ie that he did not believe he was over the limit (although he accepts that he had had an alcoholic drink) and that he did not believe that he had been driving dangerously.

EJ was a man of good character who worked long hours for the NHS as a mental health care assistant and he was shocked and upset by the immediately hostile attitude of the officers who confronted him.  He was completely outnumbered by the 7 police officers and denied displaying any violence towards them whatsoever – the truth of his account in this regard is surely borne out by the fact he was not charged with any offence of assaulting a police officer and nor did any of the officers involved in his arrest end up with as much as a scratch upon them.

EJ on the other hand suffered far worse than a scratch.  Given that the officers had almost immediately laid hands upon him and had not properly attempted to talk or reason with him, EJ tried to pull away from their grasp in order to avoid being handcuffed.  The officers moved in on my client and although what happened in the next few seconds differs between the accounts of EJ and the police officers, the end result was the same. My client felt a sudden pain in his upper left leg which caused him to scream out in agony, and which felt to him as if someone had kicked him from behind with extreme force.  All of the officers involved in fact denied kicking EJ’s leg, but 6 of them admitted that they had simultaneously laid hands on him (3 men on either side of my client) and had pulled him to the ground.

My client was left lying on the ground face down, with a cut to the right hand side of his face and enormous pain in his upper left leg.  My client’s femur, one of strongest bones in the body, had in fact been broken as he was manhandled to the ground by the police.  As a result of this extremely serious injury my client had to undergo 2 operations and was unable to work, unpaid for the majority of his time off work, for 9 months.  He and his family suffered considerable financial hardship as a result.

My client initially instructed a firm of personal injury solicitors. That firm subsequently went out of business and in March 2013 EJ’s case was transferred to a second firm of personal injury solicitors, who agreed to take his case on a ‘no win no fee basis’.

This second firm subsequently wrote to EJ in October 2013 advising him that, in their opinion, his prospects of succeeding in the claim were less than 50%.

This decision was said to be based on the following factors:-

  • That the incident had been investigated by the West Midlands Police Complaints Department who had found that the officers involved had no case to answer in regards to assault.
  • That it was EJ’s word against the statements of 7 police officers who were all arguing that the use of force against him was reasonable and required in the circumstances.
  • That EJ had been convicted of having been driving whilst over the limit on this occasion.

This was extremely disappointing news for EJ to receive.  The second firm of solicitors did correctly advise EJ that the limitation period for his claim would be the third anniversary of the incident ie September 2014.  If Court proceedings were not issued by that date, then the right to proceed with the claim would effectively be lost as the limitation period in English Law for a claim involving personal injuries is 3 years from the date of the incident.

This meant that EJ now had less than 12 months in which to find a third firm of solicitors, and one willing to act despite the second firm’s rejection of the claim.  Many would be disheartened by being left in such a situation, but fortunately, EJ got in contact with my firm and instructed us to investigate and pursue his claim.

As Police Claims Specialists we soon determined that EJ’s case had merit and we agreed to act on his behalf by way of a ‘no win, no fee’ retainer.

How was it that we were able to come to the CORRECT determination that EJ’s case in fact did have greater than 50% prospects of success, and why were we not dismayed by the same factors that had put the second firm of solicitors off the case?

Police Complaint

The rejection of our client’s police complaint by the West Midlands Police was known by us to be a ‘par for the course’ in that the vast majority of successful claims in which we represent clients start off with disciplinary complaints being rejected, and then go on to result in an award of damages being made to the Claimant.

There is a simple reason for this and it is that the complaint process is not independent but is handled by an Internal Disciplinary Investigation Team within the police force concerned, whereas a civil claim for compensation will go to Court and be heard by an entirely independent judiciary.

Long experience has taught me that the Police Internal Complaints Procedure is not fit for purpose, and that its agenda often seems to be to attempt to brush complaints under the carpet, with police officers, perhaps naturally, inclined to take the side of other police officers (colleagues in the very force with which they serve) and to favour the accounts of officers on almost all occasions over those offered by the victims of police misconduct.

In my opinion therefore, the second firm of solicitors had put far too much weight on the rejection of our client’s complaint by the police.

The number of police witnesses

Over the years I have represented many clients in successful claims where it is their word alone against that of one or more police officers and I know that it is not simply a numbers game of adding up the witnesses on each side.

We carefully assessed EJ’s evidence and concluded, I believe quite rightly, that he would come across as an honest and credible witness.

We carefully analysed the statements of the 7 officers involved and noted that whilst all the officers denied delivering or witnessing any kicks or strikes to our client’s leg, none of them were able to offer any alternative explanation as to how he came to sustain such a severe fracture to his upper leg.  The officers accounts in regards to how EJ came to injure his leg were extremely vague and in certain respects contradictory.  All of the officers denied either striking or holding the Claimant’s leg as he was taken to the floor by the combined efforts of 6 police officers, but could offer no explanation as to the fracture of his leg.  Furthermore, despite the officers accounts of a violent struggle with a muscular and well built individual, none of the officers had sustained any injury whatsoever (as highlighted above).

Two of the officers alleged that EJ was flailing or waving his arms aggressively prior to any attempt being made to handcuff him, but the other 5 officers present did not apparently see this.

One of the officers stated that EJ fell to the ground in an uncontrolled manner, whereas the other officers described our client being lowered to the ground whilst being held by several of them.

Three of the officers described hearing a snapping or popping sound as EJ was being overpowered and before he was lowered to the ground.  The statements of the other 4 officers however did not say anything about this.

I also crossed referenced the officers’ statements with the accounts given by the police to the doctors at the hospital where EJ was transported by ambulance from the scene of the incident.  In those records it states:-

According to police, was being restrained on front, legs crossed behind him and then forced him to flexion at knees.  Then sudden crack/pain”.

I noted that this account was completely contradictory of the accounts given in the police officers statements, none of whom talk about the Claimant’s legs being flexed whilst he was restrained on the ground.

So by utilising my experience of cases of this nature, and by a careful and detailed analysis and comparison of the evidence, I was able to come to the conclusion that simply because it was the word of 7 men against 1 did not mean that the police would be exonerated.

Conviction for drink driving

Of course the fact that EJ was convicted of having been driving on the night of the incident whilst over the legal blood alcohol limit did present a real problem for the case.  I was not proud of my client for having committed this offence, albeit that he had no prior convictions, and he was clearly in the wrong when he committed that offence – however that did not justify the behaviour of the police towards him, and specifically he did not deserve to end up with a severely fractured leg leaving him with permanent pain and scarring as a result of his actions.

The fact of my client’s conviction presented a legal obstacle which it is likely that a solicitor who is not experienced in police misconduct claims, might consider insurmountable.

Section 329 of the Criminal Justice Act 2003 prevents a claim for assault being brought by a person who suffered the assault whilst in the process of being arrested for the commission of an offence for which he was subsequently convicted (in this case drink driving).

The only way this hurdle can be overcome is to demonstrate to the Court that the assault suffered by the injured person was grossly disproportionate or that the police officers carrying out the assault did not believe that it was necessary in order to prevent the commission or continuation of an offence or to apprehend the person who had committed the offence.

Again, drawing on my experience of similar cases where I have had to deal with the obstacle presented by Section 329 of the Criminal Justice Act before my client’s case can proceed to trial, and also by reference to my detailed analysis of the evidence, I was satisfied that there were sufficient grounds for the Court to grant EJ permission to proceed with his claim and to reach a finding that in all the circumstances the police officers acts in causing a fracture to his upper left leg were grossly disproportionate given that:-

  • The offence which he was suspected of having committed had already come to an end.
  • The threat posed by EJ was minimal given that he was not armed with any weapon, he was outnumbered 7-1 by the police officers who were in attendance, and on the evidence of those officers he did not strike or land any blows upon any of them with any part of his body.
  • That none of the officers involved in EJ’s arrest were injured in any way, whereas EJ sustained a fracture necessitating multiple hospital operations and a 9 month absence from work.
  • There was nothing in EJ’s medical history or records as considered by the Orthopaedic expert who I appointed to prepare a report in his case to suggest that EJ was a particularly vulnerable individual who suffered from any medical condition which would have pre disposed him to suffering fractures more easily than any other person in the general population.
  • A leg fracture in the circumstances of this arrest, is a highly unusual injury to be sustained and spoke in itself of disproportionate force being used.  The femur is manifestly one of the longest and strongest bones in the body, and a fracture of the femur, is by common knowledge, an unusual injury to sustain.

Other crucial evidence

In a general personal injury claim there may be only limited classes of documents to obtain, eg hospital records and, if the accident occurred in the course of someone’s employment or at a public place, an accident report form.

In claims against the police numerous documents are generated relating to the arrest of the individual client and the actions of the police officers both before and after the arrest, in the form of computer logs, audio recordings, Custody Suite CCTV footage, interview tapes, police officer notebooks and statements, force medical examiner records etc.

Again, having a solicitor with the appropriate experience to identify all the different categories of document that should be produced by the police in a case such as this, and making sure that none have been overlooked (or deliberately withheld) is crucial.

I sought and obtained from the Defendant disclosure of the Association of Chief Police Officer’s ‘Use of Force’ manual which was the training manual used by West Midlands Police in regards to ‘take down’ techniques at the time of the incident in 2011.  This helped to demonstrate, that in my opinion, if a proper technique had been used it is likely that EJ’s leg would not have been fractured.

I also obtained the police radio log which showed that only 3 minutes had passed between officers first arriving at the scene and EJ being reported as on the floor with a broken leg.  3 minutes does not seem a very long time for the officers to have exhausted all avenues of resolution eg talking/reasoning with EJ – before resorting to violence in a situation in which the crime for which EJ was suspected was not itself one of violence, and nor had EJ assaulted any of the officers present.  In other words, was it necessary for the officers to handcuff/lay hands upon EJ at all?  Again I know from long experience that officers are trained to resolve conflict situation first by none violent methods of communication and negotiation with a suspect unless they are truly threatened with immediate danger which simply could not have been the case here.

I felt that this was another strong factor in my client’s case and gave me the confidence to assure him that we would see his case through to trial if necessary.

The progress of the Court proceedings

As stated above, my firm was instructed by EJ in October 2013 after his other solicitors had rejected his case.

After analysing the second firm’s file of papers we formally agreed to act on EJ’s behalf in December 2013 and set about gathering further evidence from the police.

We sent a formal letter of claim to the Chief Constable of West Midlands Police on behalf of EJ in May 2014.

In August 2014 West Midlands Police replied denying that any police officer had kicked EJ and requesting disclosure of EJ’s medical records in order for the case to be further investigated between the parties.  There was no admission of liability.

Owing to the approach of the limitation date (September 2014) my firm then issued a Claim Form in the County Court Money Claims Centre to protect EJ’s right to proceed with the case.

Medical evidence was obtained from an Orthopaedic Consultant in regards to EJ’s leg fracture in October 2014.

With the Defendant still having failed to admit liability, despite disclosure of the Claimant’s medical records we accordingly served the Court proceedings, along with the Orthopaedic expert’s report in December 2014.

A Defence was then served by the police in January 2015 in which all liability for EJ’s injury was denied and in which the Defendant stated that EJ should not be allowed to continue with the claim on the basis of Section 329 of the Criminal Justice Act (as discussed above).

Accordingly we had to issue an application to satisfy the Court that permission to proceed with the claim for assault against the police should continue, notwithstanding EJ’s conviction, and I am pleased to confirm that this was granted by the Court in April 2015.

Thereafter the case proceeded over the following months with the normal steps of exchange of documentary evidence, witness statements and questions to the medical expert with the police continuing to completely deny liability.

On a number of occasions we invited the police to attend a Joint Settlement Meeting with us to attempt to narrow the issues between the parties and secure an out of Court settlement, thereby saving legal costs for all concerned, but this was rejected.

Eventually, the case was listed for a 5 day trial to take place in October 2016.

Then in June 2016 the police put forwards an offer to my client to ‘drop hands’, ie that he discontinue his claim on the basis of no order as to costs.  In effect all that was being offered was that my client would be allowed to walk away from the case as if he had lost, without getting any damages but without having to pay any legal costs to the Defendant.

With my support my client quite rightly rejected this offer.  I identified the fact that the offer had been made as the first chink in the Defendant’s armour.

Indeed, in July 2016 the Defendant then made an offer to settle my client’s claim for a payment of damages but only in the sum of £3,000.

I advised my client that this was a very low offer in view of the extremely serious nature of the fracture he had sustained to his leg and the permanent damage it had caused to him, even taking into account the litigation risks of him not winning at trial.

Once again with my support therefore, EJ rejected the Defendant’s offer.

We however put forwards a counter offer in August 2016 to settle EJ’s claim for the sum of £20,000 damages.

We then continued to prepare the case for trial and were only a few weeks away from the trial when at the very end of September 2016 the Defendant accepted our offer and agreed to pay EJ £20,000 in compensation for the injuries which he suffered.

It had been a long hard fight over the course of no less than 5 years for my client to achieve justice, but working together with the right firm of solicitors he was able to do so.

Specialist Knowledge

Confidence and perseverance are required to see a challenging case such as EJ’s through to successful conclusion.

I am glad that he came to me before it was too late, and that he was not put off by the unduly pessimistic advice he received from his former solicitors who in my opinion did not have the requisite experience to realise that they had a winning case on their hands.

EJ now has 20,000 reasons to tell his former solicitors why they were wrong!

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About iaingould

Actions against the police solicitor (lawyer) and blogger.
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