NEW CRIMINAL OFFENCE;SHOPPING WHILST BLACK

Iain Gould solicitorBy Iain Gould, solicitor

I have just concluded two cases that were due for trial this month.  In both cases, my clients had been arrested in similar circumstances whilst seeking to establish their ‘consumer rights’

In both cases, each  police force had robustly denied liability forcing my clients to issue court proceedings and press for trial.  Only on the eve of  trial was settlement agreed a five-figure award of compensation plus legal costs in both cases.  Of significance,  both clients are black men.

Arrested for complaining about a pair of shoes?

My first client Mr M had recently purchased a pair of trainers from a well-known national Sports Shop chain which transpired to be faulty.  Along with his wife, he returned to the store with the trainers, the original box and receipt, hoping to receive a refund or credit note.

Mr M spoke to an assistant and then the manager.  The manager  refused to provide a refund or credit note. He advised my client that the trainers could only be returned if they had not been worn or if they had a manufacturing fault. Mr M  was of the opinion that if that was the policy adopted by the Store then such was plainly unlawful, and he forthrightly told the manager ‘That’s BS’.

Mr M and the manager argued about consumer rights and the Sale of Goods Act. My client said the shoes should be returned to the manufacturers.

Mr M was told to leave the store. He refused to do so unless a refund was given.  My client was warned in terms that the store’s security staff would be called.

Two security guards then attended. They asked Mr M to explain his position, which he did calmly. The guards refused to intervene.

Mr M returned to the counter and told the manager  that he would not leave the store until a refund or credit note was proffered.

The manager responded, ‘I’m not talking to you any more, I’m not interested. That’s it’. The Police were called.

Two police officers of West Midlands Police then attended the store. They were PC K and PC A.  They spoke to the manager who told them that he didn’t wish to make any complaint against Mr M. Rather, he just wanted Mr M to leave the store.

Mr M spoke to PC K and explained his position. Whilst he did so, three other officers attended the store.

PC K pointed out to Mr M that this was a civil dispute and that Mr M would have to take it to Court. Mr M advised PC K that to go to Court for a dispute over trainers costing £40.00 would be impractical.

Exasperated,  my client then decided to leave the store and said to his wife, ‘Forget it, love, let’s go’. As Mr M proceeded to walk away, PC K obstructed his path, put his hand up and pushed my client who immediately stepped back and asked why the officer had assaulted him.

PC K then told Mr M that the police required his details so as to effect an arrest.  At this, PC K sought to seize hold of Mr M’s arm. Mr M pulled his arm up so that the officer could not restrain him. A second officer then sought to intervene. Both officers then pushed  Mr M up against a glass counter. PC K said, ‘Take him to the floor’.

Mr M shouted in response, ‘Get the fuck off me’. Mr M was held, pinned down by the two officers using their body weight, across the counter. CCTV footage of the incident showed the  two officers pushing Mr M against the counter.

Mr M was then pulled away and, as a result of the officers’ continuing use of force upon him, felt his legs go from underneath him. He fell to the floor face down with his arms underneath him. Various officers sat astride him, holding him down.

One officer, whom Mr M believes to have been PC K, was shouting, ‘Release your arms’ but Mr M was unable to do so because of the weight/pressure of the other officers, which they continued to use against him.

The other officers began to get off Mr M and simultaneously PC K punched Mr M as hard as he could’ (as he later admitted) to the right shoulder. Mr M was able to release his arm from under himself whereupon his arms were seized and he was handcuffed to the rear by PC A.

Whilst being handcuffed, PC K pushed  my client’s face down onto the floor, which caused  an injury to the right side of Mr M’s forehead.

Other officers assisted Mr M to get to his feet. Mr M was then escorted from the store to a nearby police vehicle and thereafter transported to Sutton Coldfield police station.

The custody record in respect of the ‘Circumstances of Arrest’ indicated;

‘Officers were called to a report of a male and female acting aggressively within the store. Upon arrival at the store, spoke to the store manager who stated that he had been approached by the person in custody in the store who was making a complaint about a pair of trainers. he explained to the person in custody that it was not a manufacturing fault with the item. he claimed the person in custody became verbally aggressive towards him and he felt threatened by his manner. He was happy for matter to be dealt with by prop crime recording. Spoke to person in custody, tried to ascertain his details to carry this out. However he became agitated and tried to walk past me and refused his details. I put hand up in front to prevent him from leaving and then he accused me of assaulting him and refused details. Arrested for section 5 public order for original matter. became rigid and obstructive and refused to comply. Was taken to floor by the counter and struck twice with closed fist on back’.

Mr M was taken to a cell and sometime later also arrested for resisting a constable.   Again, the Custody Record recorded the circumstances of arrest: “During the original arrest, the person in custody became violent and had to be restrained by force”.

Mr M was later interviewed in which he gave a detailed account, denying any criminal behaviour.  Towards the conclusion of the interview, the interviewing officer explained to Mr M  that instead of arresting him, the matter could have been dealt with by an apology, that is why officers were trying to obtain his details.

After a lengthy period of detention, Mr M was released on bail. Upon answering bail several weeks later,  my client was charged as follows;

Words/behaviour-harassment alarm distress; used 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 Contrary to section 5(1) and (6) of the Public Order Act 1986.

 And

Resisting or obstructing a constable contrary to Section 89(2) of the Police Act 1996.

 Mr M later attended Court as required and pleaded a not guilty.  Some 4 months later, Mr M attended Court for the trial.

At the trial, PC K  gave evidence on oath against Mr M to the effect that;

(a)  Mr M had, when asked for his name and address told PC K to ‘fuck off’;

(b)  PC K had given to Mr M a reason for the arrest and for its necessity;

(c)  PC K informed Mr M about resolving the issue by ‘Local Resolution’.

Following evidence, the Magistrates retired to consider the issues. After consideration, Mr M was acquitted.

Shortly after his arrest, Mr M lodged a complaint.  By reason of sub judice, the Police refused to investigate  his complaint until he conclusion of criminal proceedings.    As is so often  the case , the complaint was the subject of  what was in my opinion a poor and lack luster investigation, the conclusion of which was that no officer was culpable of misconduct.

My client did not realise that he could take a civil action against the Police for his arrest and prosecution until several years later following telephone contact.  I agreed to represent him and brought proceedings just in time.

At the time of the incident, Mr M had been employed as a security guard. This brought him into frequent and respectful contact with the Police and made him aware at all times of the need to act reasonably and within the law.

Notwithstanding the passage of time, Mr M had good recall of the incident and presented as a calm and reliable witness and his wife.  Notwithstanding the very different factual accounts of the incident provided by the Police Officers,  I felt that my client’s account was more likely to be believed than the officers.

Irrespective of the different factual accounts, what struck me was that ultimately  this was a dispute over a £40 pair of trainers and the actions of the Police were wholly disproportionate to that dispute.  Quite simply they had made a mountain out of a  molehill.

White Staff Member, Black Customer, Guess Who Gets Arrested?

This suggestion of excessive use of power/force was also evident in the case of my second client, Mr Mc.

Mr Mc had recently purchased a car wax product for £15.00 which he considered to be of poor quality.  He  attended the store and spoke with the manager and asked to exchange his purchase The manager told Mr Mc that the store policy did not allow an exchange once a product had been opened.

Mr Mc had read up on his consumer rights and was of the opinion that he had a statutory right to take another product of equal value to that which he had purchased.  Mr Mc selected another car wax and proceeded to walk out of the store. He left his receipt and the item he had previously purchased on the counter.

The manager informed Mr Mc that he would call the police.  My client replied that he should call the police. Mr Mc was no abusive to the manager at any stage.

After 1 or 2 minutes, Mr Mc returned to the store.  He anticipated that the police would be able to resolve the dispute and decided to await their arrival.

When Mr Mc re-entered the store, the manager was on the phone.  Mr Mc asked the manager , “is that the police?” which the manager eventually confirmed.  Mr Mc told the manager that he would await the arrival of the police.

While Mr Mc was waiting at the till area for the police to arrive, he saw the manager dispose of a piece of paper in the bin under the counter.  Mr Mc asked the manager if the paper was his original receipt, which the manager denied.

Mr Mc was concerned that the receipt was his only proof that he had previously purchased the item from the store. Without his receipt, he would not be able to prove to the police that he was entitled to an exchange.

Mr Mc asked the manager where the original receipt was.  The manager replied that he did not know. In the circumstances, my client walked around the till area and began searching through the bin for his receipt.

The manager did not ask Mr Mc to step away.  He remained with my client behind the till before walking away and leaving Mr Mc searching the bin.

Mr Mc then moved from behind  the till area to the side of the counter.  He was joined  by the manager.  At this point,  Mr Mc had noticed the original receipt  inside the purchase bag which had been moved to the side of the counter.

PC H of the Metropolitan Police arrived at the shop at this time. PC H immediately walked directly towards Mr Mc at a brisk pace.  As he did this, he said “Right, you’re under arrest, put your hands together”.

Mr Mc was perplexed at this.  He immediately presented his hands above his head, palms facing outwards in a stance of ‘surrender’.  Mr Mc asked the officer why he was being arrested.

In response, PC H pushed Mr Mc backwards.  With handcuffs in his hand, PC H grabbed hold of Mr Mc’s arms and hands and attempted to handcuff him.

Mr Mc was forced backwards  against the wall.  He still had his hands up by his sides in a non-threatening, passive stance.  Mr Mc did not know the reason or grounds upon which he was being arrested.  He repeatedly asked PC H to tell him why he was being arrested.

PC H said, “Stop resisting, put your hands together and bend down on the floor”. PC H restrained Mr Mc by holding his arms.

PC H refused to explain the grounds or reason why he was detaining and/or arresting my client.

At this point, PC H suddenly drew out his baton.  Mr Mc asked PC H why he had deployed this weapon and explained that he just wanted to talk with the officer.

Suddenly, PC H then struck Mr Mc with his baton on the lower thigh, just above his knee. At no stage had Mr Mc been violent, aggressive or threatening towards PC H.  There was no reason for this use of force. PC H then struck my client in the same place again with the baton at which point, Mr Mc instinctively struck PC H back with his left hand causing.   Mr Mc did this to defend himself from PC H.

PC H then tackled Mr Mc to the floor and he was restrained  on the ground.

At this point, two other officers entered the shop and assisted with restraining Mr Mc.

Mr Mc was handcuffed and transported to Chiswick police station.

At the police station, Mr Mc was strip searched and placed in a cell.

Mr Mc was later interviewed.  He provided a full account and repeatedly asserted during the interview that PC H would not tell him why he was being arrested, despite repeatedly asking and that he had punched PC H instinctively in self-defence.  Eventually, Mr M was released on bail on condition that he later return to the police station.  Mr Mc was subsequently informed that no further action was to be taken against him.

Once again, Mr Mc lodged a complaint within a few days of his arrest.  Once the Met Police had decided to take no further action against him, the complaint was investigated.  Once again, the complaint was dismissed.  This time, Mr Mc lodged an appeal to the IPCC.  Unfortunately, following what appeared to be to the IPCC upheld the original be a fairly cursory review investigation decision finding that “PC H’s account that he was unable to hold sufficient conversation” with my client when he entered the store was satisfactory and instructed me to act for him.

My client’s only redress now was to bring a civil claim.  Following review, Solicitors acting on behalf of the Met denied liability.  So as to advance the claim, I then issued Court proceedings on behalf of Mr Mc for damages for both false imprisonment and assault and/or battery.

As part of the criminal investigation, some (but not all) of the store’s CCTV footage was secured.  Although there was no sound, the footage verified my client’s account and showed in my opinion unreasonable behaviour by the Police Officer.

The footage showed that upon arrival, PC H  immediately attempted to detain my client with almost no dialogue before PC H attempted to handcuff Mr Mc.  This does not support PC H’s assertion that Mr Mc was aggressive and/or uncooperative.  In fact, the footage showed Mr Mc clearly adopting a submissive gesture with his hands up and palms facing outward.

Once again, the Police Officer’s reaction to a relatively trivial consumer dispute was heavy-handed and completely unnecessary. In both of those case when met with a black man who did not become immediately completely submissive but who tried to set out his version of events in a reasonable manner, the Police Officers involved responded with pure and naked aggression.

It is hard to imagine that the skin colour of my client was not a factor in each case.  We know, for example that black and ethnic  minority people are three times as likely to have taser guns deployed against them by the Police, and by reasonable analogy this presumably applies to other forms of violence as well, for which clear statistics are not so readily available.

At their least both of these matters were minor disputes over in one case a pair of shoes with £40 and in the other a bottle of car wax worth less than that which ended up taking tens of thousands of pounds of tax payer’s money in the time and costs of prosecution, complaint and civil claim and  which could have been diffused and resolved by a few polite words on behalf of the officers included.  Instead the officers jumped to the conclusion and to physical violence almost immediately “seeing red”.

Or should that be “seeing black”?

 

 

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.