Choosing the Right Lawyer (Part 2)

This is a guest post by my colleague and fellow solicitor, John Hagan.

Further to my recent post about the importance of appointing a specialist Actions Against the Police lawyer to represent you in a claim where you believe you are the victim of Police misconduct I will now discuss the other recent case which I settled against West Midlands Police on behalf of my client A.N, who received a compensation award of £15,000.

A.N a young man of exemplary character, was cycling to his local Tesco in March 2012 when he was stopped by a lone West Midlands Police Officer (PC Y) who directed him to stop using his patrol car’s blue lights. A.N, who had been cycling entirely properly along the road, duly pulled his bike over to the side of the road and waited whilst the Officer pulled up alongside him. A.N’s account of what then happened is as follows. A.N asked the Officer if he had done anything wrong.

PC Y stated No, there had been a lot of car crimes in the area and that he wanted A.N’s name and address. As stated above, A.N is a man of good character who has no criminal record. He did not feel he had done anything untoward to warrant the Officer’s suspicion, had simply been cycling along a public road and did not wish to be processed through a computer when he had done nothing wrong. A.N therefore, quite correctly, exercised his right not to give the Officer his name and address.

Police Officers do not have the authority to require members of the public to provide their name and address if they are simply being subjected to a stop/search and have done nothing else to warrant suspicion of a crime. PC Y appeared to become tense and agitated at A.N’s refusal to give his personal details and exited his car and came towards A.N. A.N felt intimidated by the Officer’s demeanour and behaviour but told PC Y “You can search me if you wish, I have nothing to hide.” At this point A.N was standing less than a yard from the kerb, in the carriageway, with his bicycle between his legs and he voluntarily handed his bag to PC Y so that the officer could search it. PC Y dropped A.N’s bag as soon as it was handed to him and then produced handcuffs. A.N was understandably shocked at this serious and unjustified development. PC Y – who even on his own account of events had no justification whatsoever to arrest A.N -stated that he was going to handcuff A.N for the purposes of carrying out the search. As A.N had not been physically resisting the Officer and had actually offered himself to be searched, there was, in my opinion, absolutely no justification for him to be handcuffed and both A.N and I agree that this appears to have been a deliberate attempt by the Officer to intimidate A.N and to make him feel ‘powerless’ in an attempt to get him to answer the Officer’s question as to his name and address which he was not in fact obliged by law to do.

Matters now began to escalate quickly out of hand. A.N describes how PC Y, threw the handcuff onto A.N ’s right wrist and then tugged very hard on the chain, twice backwards, pulling A.N off his bicycle, causing the bike to fall to the ground.

A.N described how the handcuffs were tightly pressing around his wrist and that PC Y then used the handcuff chain as if it were a ‘leash’ to pull A.N violently from side to side, repeatedly. A.N was in utter shock at the Officer’s violent behaviour. As a result A.N experienced significant pain and to his wrist and hand.

PC Y, then took A.N in a body lock and threatened to use a CS gas spray against him ¨Do you want me to spray you?¨A.N stated “I do not know what you want me to do!”; and with that PC Y picked him off his feet and then threw him hard to the ground. A.N landed on his knees and fell forward bumping his forehead on the road surface. A.N then felt PC Y lifting A.N’s right arm up behind his body and felt the handcuff being pressed very hard into his already injured right wrist, which caused him to cry out in pain. A.N felt PC Y applying increased pressure to the handcuff which was digging into his right wrist. PC Y repeated a process of applying, releasing and then re-applying the pressure on A.N’s wrist approximately 6 or 7 times, each time causing A.N to cry out with pain. The whole time no commands were given by the Officer other than to ¨Shut up!” as A.N cried out.

PC Y then finally handcuffed both of A.N’s hands together behind his back and pulled him up onto his knees. A.N felt considerable pain in his left knee as his tibia had been fractured from when PC Y originally threw him to the ground.

PC Y then stood A.N up on his feet and demanded of him “Now you have to give me your name and address.” A.N who was fearful of being assaulted again and was desperate for the excruciatingly tight handcuffs to be removed, did so.

It appears to me that PC Y had lost control in a moment of madness and had launched into a vicious assault against an innocent man who had committed no crime whatsoever and who had not even attempted to argue with the Officer, save for exercising his lawful right to withhold his name and address.

Needless to say PC Y’s subsequent search of A.N’s bag revealed nothing incriminating. However A.N had to remain standing in the road, still handcuffed for a further 20 minutes.

More Police Officers soon arrived and a discussion took place during which PC Y asserted that he had lost the key to the handcuffs. After repeated polite pleading for the cuffs to be removed, eventually, a key was produced, he was then released, given a plaster for the wrist bleeding and told that he could go on his way from the scene.

At the end of the incident, A.N stated to all the officers ¨I want to make a complaint¨. They Refused to take down any notes and even refused A.N a biro so that he could make notes of the car plates and collar numbers.

PC Y issued A.N with a stop/search form pursuant to Section 1 Police and Criminal Evidence Act 1984 (PACE). It stated on the Stop Form – Suspicious male in high crime area, evasive towards Officer.

Legal action

Understandably suffering from both the physical and psychological after effects of this shocking incident A.N instructed a firm of Solicitors, who purportedly specialise in claims against the police. A.N noticed this company at the top of a google search because it paid for an advertising slot.

On 30th July 2012 the Solicitors agreed to act on behalf of A.N in relation to his claim against the Police on a no win, no fee basis without any enquiry as regards his eligibility for legal aid. They also took out a legal expense insurance policy on his behalf to protect A.N from having to pay Police legal costs if his case was lost at Court. Unfortunately, I think that A.N made the wrong choice of Solicitor, as although his Solicitors held themselves out as Actions Against the Police specialists their subsequent conduct of his claim shows that they did not have the requisite knowledge to deal confidently with a claim against the Police and nor to correctly assess the merits of A.N’s case.

A.N, advised by his Solicitors, filed a complaint with West Midlands Police against PC Y.

Regular readers of this blog won’t be surprised to read that the complaint investigation report by West Midlands Police exonerated their Officer and made no findings of wrongdoing against PC Y whatsoever. However, as I have said before, this is neither a legal nor really a practical barrier to making a civil claim for compensation in the County Court. Very often, in my experience, the Police Internal Complaint investigator will give the benefit of the doubt to his uniformed colleague rather than the victim/complainant and will look for reasons to dismiss the complaint rather than impartially and objectively assess all of the evidence.

I am therefore not perturbed by the conclusions of complaint investigation reports, which often appear to me to be half baked, lightweight and lacking in thoroughness compared with the proper, forensic examination and objective weighing up of the evidence which will take place before a Judge and Jury at the Court.

I see the complaint procedure primarily as a means for my client to give initial vent to his feelings of hurt and frustration at what the Police have done to him, and also as a means by which accounts of Police Officers can be obtained, but I am not ‘scared off’ if a complaint report ultimately comes back and concludes that the Police did nothing wrong.
In my opinion, the rejection of a complaint usually does not mean that the Officer involved did not do anything wrong; it just means his case was being assessed by a fellow Police Officer. I can understand why, in the stressful field in which they operate, the Police often do develop a mentality of ‘us versus them’, each force considering itself as a gang with an internal code of honour to protect its own members – and I am not the first to use that comparison, in 2012 Chief Inspector Ian Kibblewhite of the Met gave this warning

You might have 100 people in your gang – we have 32,000 people in our gang. It’s called The Metropolitan Police.

But that does not make it right. The Police complaints system is really a much wider subject for another day. Suffice it to say here that I have the requisite experience to take a Police force’s rejection of my client’s complaint with far more than a pinch of salt. Other lawyers who are not Police claim specialists however, may place far too much weight on the conclusions reached by such a report.

So what action did A.N’s first Solicitor take on behalf of him?

Initially and correctly they sent a letter of claim to the Chief Constable of West Midlands Police in October 2012, 3 months after A.N initially contacted them, setting out the basis of A.N’s claim although they only appeared to be seeking damages for the assault and injuries which A.N had suffered, overlooking the fact that he also had entitlement to damages for false imprisonment for the 20-25 minutes during which he was handcuffed and deprived of his liberty by PC Y.

Thereafter, in accordance with the pre action protocol which is designed to attempt to resolve claims without the need for Court proceedings, the Police should have provided a detailed response to the letter of claim confirming whether or not they admitted liability, what their version of events was if liability was denied, and providing disclosure of relevant documentation, within a reasonable amount of time, usually between 1- 3 months.

The Police did provide a short reply to the Solicitors in February 2013 which indicated that their enquiries would shortly conclude. Rather than pressing West Midlands Police to comply with their obligation to confirm or deny liability and to provide full disclosure, A.N’s Solicitors then allowed themselves to be side tracked into encouraging A.N to pursue a disciplinary complaint against PC Y, at the suggestion of West Midlands Police Professional Standards Department. Thereafter there was little or no progress on the file, with the Solicitors failing to actively pursue the Police for the necessary response to the claim for damages.

A.N was concerned by how long the complaint process took – he was not interviewed until 18 months after the event, during which the time the officer who assaulted him continued on active duties. A.N also felt let down by his solicitors, who had initially agreed to be present at his complaint interview, but ultimately did not attend, leaving A.N and his aged parents to deal with the investigating officer.

A.N felt that at the interview the investigating officer was not being even-handed but was biased against him, and was already trying to make excuses for PC Y’s behaviour including the ‘lost handcuff key’ incident.

Perhaps unsurprisingly, the Complaint Investigation Report was published in January 2014, concluding that there had been no wrongdoing on behalf of PC Y.
This appears to have unduly demoralised A.N’s Solicitors whose lack of experience of dealing with Actions Against the Police claims was then, in my opinion, demonstrated by the fact that the Legal Executive who had conduct of the claim felt it necessary to seek an advice from a Barrister as to whether or not the complaint outcome should be appealed to the Independent Police Complaints Commission. In my opinion, a properly experienced claims against the Police specialist Solicitor should not require guidance from a Barrister on a straightforward point such as this.

In January 2015 – with the 3 year limitation date for commencement of County Court proceedings now looming (the third anniversary of the incident was 17th March 2015), A.N’s solicitors now again turned to a Barrister, to ask them what to do.
The Barrister expressed a view, it appears primarily on the basis that this was “a case of one word against another”,that there were insufficient prospects of success to justify taking A.N’s case to Court. I subsequently read the Barrister’s advice and felt that the Barrister gave far too much credence to the Police Officer’s (uncorroborated) account of events, jumped to conclusions about A.N’s credibility without having taken the time to actually speak to A.N in person (which is absolutely critical for assessing how likely a person’s account is to be believed) and placing too much weight on an entry in A.N’s medical records far back in 2007 which related to him expressing strong views about vegetarianism and environmentalism(!).

It appeared to me that in plucking one single entry out of A.N’s medical history, simply because it related to him being assertive about his moral beliefs to an NHS worker, when there was no evidence available to suggest that he had any kind of unduly aggressive personality, or was of anything other than good character, the Barrister was actively looking for a reason to reject the case.

A.N´s solicitor also stated that the barrister was “ extremely experienced barrister¨ and that his opinion was of the highest level. A.N assumed by this statement that the barrister surely should be someone with experience of at least 20 years. However, A.N researched the barrister and found he was actually a young man who had recently come out of university.

Inevitably, A.N’s Solicitors, who appeared in their conduct of this case to rely entirely on the opinion of external Barristers rather than forming their own view, then decided to ‘sack’ A.N’s case. Accordingly A.N’s Solicitors then wrote to A.N on 4th March 2015 – less than 2 weeks prior to the expiry of the 3 year limitation period for commencing Court proceedings– stating that because of the Barrister’s advice they were no longer able to continue acting for him on a no win, no fee basis.

A.N’s Solicitors did at least take the action of issuing a Claim Form on behalf of A.N which in effect registered his claim against West Midlands Police with the County Court and gave him a further 4 months in which to find and instruct specialist lawyers who were willing to take on his case and prepare all the Court documents necessary to accompany it including the Particulars of Claim, medical evidence and any schedule of financial expenses.
A.N was so deeply disappointed by the prevarication and apparent lack of belief in his case demonstrated by his first solicitors, who he felt had not properly listened to him, nor fully investigated his case, that he lodged a complaint against them with the SRA.

A.N had really been left high and dry and feeling absolutely worn out and demoralised by the litigation process in a situation where many people would struggle to find another Solicitor.

For obvious reasons Solicitors are not keen to take on cases where the limitation period is about to expire, or indeed already has expired, and the clock is ticking to serve Court proceedings, especially where other Solicitors and Barrister have already rated the client’s chances of success as poor.

Fortunately, A.N came to my firm and after an initial discussion with him and review of his former Solicitor’s file of papers we quickly identified that his claim did have merit, and agreed to act for him. We were also able, unlike his former solicitors, to obtain Legal Aid to fund his claim against the police.

A.N came across to me as a very honest individual and there was clear evidence in the form of medical records and photographs of the seriousness of the injuries he had suffered to his wrist and his knee, which to me was simply not justifiable in the circumstances of a straightforward stop and search.

We subsequently served the Court proceedings along with full medical evidence and began to prepare the case for trial. We brought the County Court claim not only for damages for assault but also for false imprisonment, which, as I stated above, his first Solicitors overlooked as a course of action. False imprisonment arises from any complete deprivation of an individual’s liberty no matter how long it actually lasts for nor where it takes place. An inexperienced Solicitor (or as here a legal executive) might well imagine that false imprisonment can only occur if an individual is formally arrested and transported to the Police Station.

However this incident in which A.N was handcuffed in the street for 25 minutes just as much constitutes false imprisonment as if he had been locked behind a cell door for that period of time. It was remiss of his former Solicitors to have overlooked this. The grounds for A.N s claim in false imprisonment and assault were as follows –

  • The stop and search of A.N amounted to a complete deprivation of his liberty and therefore to imprisonment.
  • The said imprisonment lacked lawful authority because it was imposed upon A.N in the absence of reasonable grounds for suspecting that he was in the possession of stolen or prohibited items.
  • No authority other than Section 1 of PACE 1984 was asserted by the Police Officer as justification for the stop and search. No other lawful authority existed.
  • PC Y did not honestly and/or reasonably suspect that A.N was in possession of stolen or prohibited items.
  • Alternatively, even if a power of search existed, the use of handcuffs upon A.N was unjustified, irrational and unlawful and PC Y failed to properly exercise any discretion as to whether A.N should be handcuffed.
  • Furthermore PC Y did not comply with the provisions of PACE by informing A.N of the grounds of the search as soon as practicable, nor identifying himself to A.N by name, rank or station.
  • The force used in taking hold of and/or handcuffing A.N constituted assault and was unlawful on constituted trespass to A.N ’s person either in every respect or as involving the use of excessive and unreasonable force.

Furthermore, in addition to the claims for assault and injury I brought on A.N’s behalf a claim for an award of aggravated damages on the following basis –

  • The conduct of PC Y was a gross affront to A.N ’s personal dignity and integrity.
  • A.N was subjected to gratuitous, unprovoked and violent force by PC Y which amounted to arbitrary, high handed, intimidating and oppressive conduct.
  • PC Y ignored or refused A.N’s repeated pleas to loosen his handcuffs.
  • The conduct of PC Y was vexatious and deliberate and amounted to an abuse of the power of stop and search.
  • The conduct occurred in a public place.
  • PC Y applied excessive force upon A.N in order to compel A.N to provide details (his name and address) which he was legally entitled to withhold during a search.

The Claim Form which had been issued by his previous Solicitors on behalf of A.N had stated that he was bringing a claim for personal injury and financial loss “as a result of negligence and/or breach of statutory duty” on the part of the Police. Legally, this was incorrect. The claim was for the tort of deliberate or reckless assault (not negligence) and neither the commission of assault nor false imprisonment (which in any event had been overlooked by his former Solicitors) amounted to a breach of statutory duty. Both of those civil offences are torts (civil wrongs) under the common law, they are not statutory offences.

Furthermore, as well as overlooking the entitlement to claim damages for false imprisonment, and confusing a claim for injuries inflicted by assault with a claim for negligently inflicted injuries, his former Solicitors had failed to state on the Claim Form that aggravated and exemplary damages would be sought which again suggests to me that they simply did not fully understand the law in this area and/or lacked the necessary experience to properly interpret it in that they had wrongly advised A.N as to his prospects of success and they had failed to properly utilise all legal mechanisms by which the fair and just amount of compensation could be won.

I am pleased to report that after initially fighting the Court proceedings, West Midlands Police, backed down before it was necessary to go to trial and agreed to pay A.N £15,000 damages in compensation plus his legal costs.

This was a fair and just outcome for A.N, and I believe that had he instructed me on day one matters would have been resolved much quicker than they were.

However he had been misled by his previous Solicitors publicity material into believing that they had the requisite experience to properly handle a complex claim against the Police such as this. I will leave the final words in regards this matter to A.N himself who sent me this kind message when the case was concluded –

I feel very lucky to have found you when I did. I was literally almost out of time in 2015 …. Finally some genuine decent help after 3 years of struggle.
Thank you very much. There was definitely some luck in our meeting but also a lot of great work, skill and patience by yourself for the win.

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.

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