In my last blog, I focused on the offence of assaulting a Police Officer in the execution of his duty pursuant to s89(1) of the Police Act 1996.
It is also an offence to resist a Police Officer in the execution of his duty (s89(2)).
To resist is not defined in the Act. The Oxford English Dictionary defines the verb to “resist” as follows; stop or hinder the progress or course of …. strive against, oppose, refuse to yield to ….. refuse to comply”. Reported case law suggests that resisting a Police Officer entails a positive act on the part of the person being arrested. So, whether or not the defendant has ‘resisted’ is often not controversial.
The more contentious issue is often whether the officer at the material time was acting in the execution of his duty. Various actions may take an officer outside the course of his duty such as carrying out an unlawful arrest.
It is a well established common law principle that a person has the right to resist an unlawful arrest.
Take for example, my client Mike Black whose claim I have just settled.
Mr Black was in his front room at home when he became aware that his son was outside and being spoken to by Police Officers PC B and PC H.
Mr Black went outside to find out why the Officers had stopped his son who had been out driving.
He saw that PC B was speaking to his son and that PC H was in the front passenger seat of a police vehicle.
PC H told Mr Black that he was writing a ticket for ‘a dodgy light bulb’.
PC B told Mr Black’s son, “Wind your fucking neck in before I arrest you on section 5”.
Mr Black, whose arms were folded, raised his left forearm, pointed at PC B and said, “Don’t talk to my son like that”.
PC B replied, “Go away, it’s nothing to do with you”.
Mr Black responded, “It’s got everything to do with me, that’s my fucking son”.
PC B stepped towards Mr Black and in so doing stood on Mr Black’s left foot whilst simultaneously pushing him to the left shoulder. This force was used within seconds of Mr Black appearing on the scene and in the absence of any threat or difficulty posed by Mr Black.
Mr Black twisted to his left and as he did so, PC B seized hold of his left arm and forced him over the rear of the police vehicle.
PC B pressed Mr Black’s face down on the car so that he was under the complete restraint of PC B who had twisted his left arm behind and up his back.
PC B repeatedly instructed Mr Black to stop resisting arrest despite the fact that my client was not offering any form of resistance.
PC B then advised Mr Black that he was under arrest for “section 5”. (This is a reference to S.5 of the Public Order Act 1986).
My client then realised that his wife was standing nearby asking what was happening. PC B shouted “Tell him to calm down or I’ll pepper spray him”.
Mr Black sarcastically advised PC B to put his ‘toys’ away.
Suddenly and without warning or explanation PC B sprayed Mr Black to the face with captor spray causing him pain, discomfort, irritation and disorientation.
PC B then pushed Mr Black into the privet hedge outside the premises.
Mr Black then witnessed PC B forcefully push his wife to the chest, causing her to fall to the ground, whilst PC B continued to twist and force Mr Black’s left arm up behind his back. Suddenly there was an audible snapping noise. Mr Black realised that PC B had caused him a serious injury and believed that as a result of the said noise PC B knew this too. Mr Black told PC B that he had broken his arm.
PC B released Mr Black’s arm but continued to pin him to the ground with a knee to the back.
Other officers arrived on the scene. In order to protect his arm, Mr Black manoeuvred both arms beneath his chest. Mr Black’s feet were seized and forced back. A baton was used to prise his arms from beneath him.
Notwithstanding the obvious injury which had been caused to Mr Black, he was handcuffed to the rear and taken to a nearby police van.
At no point during the arrest had Mr Black kicked or attempted to strike out at PC B or at any other officer in any way.
Mr Black was taken to his local Police Station suffering much discomfort en route.
The custody record indicated the circumstances of arrest as follows; ‘Officers have stopped a vehicle …………… When speaking to the driver, suspect has intervened and became abusive and threatening. He refused to leave and was arrested for s5 POA. He then resisted arrest and kicked the arresting officer twice in the testicles’.
In interview without a solicitor Mr Black gave a very detailed denial of the allegations against him.
Notwithstanding Mr Black’s denials, he was subsequently charged with:
- Using 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 therefore, contrary to s5 of the Public Order Act 1986;
- Resisting PC B in the execution of his duty.
Mr Black was released from custody 13 hours and 9 minutes after his arrest and bailed to attend Court.
Mr Black instructed Solicitors, Messrs J.C. Wroe & Co who wrote to the Crown Prosecution Service, urging that the prosecution be discontinued on the following basis –
- With regard to the allegation of threatening behaviour, it was extremely unlikely that an officer would be “harassed, alarmed or distressed” by a minor argument about a traffic incident. This was particularly true of PC B who was prepared to use sufficient force on Mr Black to break his arm, and who at the same time pushed Mr Black’s wife, who was at the time in poor health, to the ground.
- With regard to the allegation that Mr Black resisted PC B in the execution of his duty, it was self evident that given the nature of the injury sustained by Mr Black that the officer was not acting in the execution of his duty. In PC B’s statement, he said that “he took hold of Mr Black’s left arm, using a reasonable amount of force under Common Law to protect himself. He then alleged that Mr Black resisted prompting the officer to say “don’t resist, just go away or you’ll get nicked”. It would seem therefore that the officer had accepted that at the time he took hold of Mr Black, he was not in the process of arresting him, and therefore there was no justification for the officer taking hold of Mr Black. The officer then purported to arrest Mr Black for a Public Order Offence and subsequently broke Mr Black’s arm.
Notwithstanding this persuasive analysis of the facts, the CPS nevertheless continued the prosecution and the case proceeded to trial. At the close of the prosecution evidence the charges against Mike Black were dismissed, following a submission of no case to answer.
The trial notes obtained from the Magistrates’ Court record the following judgment:
‘Having listened very carefully to the prosecution evidence, we do not accept that PC B, with his training, experience and physical advantage, could have felt harassment, distress or alarm by Mr Black’s behaviour given the very short period of interaction between them. We have also not heard evidence of anyone else in the immediate vicinity who would have felt harassed, alarmed or stressed at the time this led to his purported arrest.
We find that a tribunal properly directed could not convict Mr Black of a section 5 PO Offence.
By grabbing Mr Black’s arm and pushing him away within seconds of Mr Black’s appearance at the scene we find that PC B was not acting in self defence and as a result, was not acting in the execution of his duty.
We therefore find the charge of resisting or obstructing a police officer in the execution of his duty as not made out.
In conclusion, we find that there is no case to answer with respect to both charges’.
Mr Black and his wife lodged a complaint. Thames Valley Police investigated and dismissed the same. Mr Black appealed to the IPCC. As is standard practice, the IPCC dismissed his appeal.
Mr Black approached his criminal defence solicitors. They advised that their firm did not have the expertise to act in a civil claim for damages. Subsequently, Mr and Mrs Black instructed myself, as a specialist in actions against the police.
A claim was intimated and following investigation, Thames Valley Police denied liability. Mr and Mrs Black’s only redress was to sue. I commissioned reports from both an Orthopaedic expert and a Psychiatrist in respect of both of my clients. Once medical evidence had been approved, I issued court proceedings.
Thames Valley Police maintained their denial by filing a robust defence.
The case proceeded towards trial (sadly a drawn out saga because of considerable delays in the court process).
A pre-trial review was set for February 2019.
Notwithstanding the strength of the claims, Thames Valley Police continued to refuse to admit liability but did begin to ‘crack’. After protracted negotiations, Mr Black settled his claim for £30k and Mrs Black for £15k.
On case conclusion, Mrs Black kindly wrote to me as follows;
Once again thank you so much for helping us to secure such a brilliant settlement, you have done a far better job than any other solicitor would have attempted.
Until we found you we were mainly turned down by other solicitors who said we had very little chance of success.
We will never forget how supportive you and your colleagues have been and wish you every success in the future. May you long continue to test how robust these laws are.
In this case, it was clear to me – as indeed it was clear to Mr Black’s original criminal defence solicitors (and indeed the Magistrates who tried his case) – both that Mr Black was not “resisting” PC B nor was PC B acting “in the execution of his duty”. There were no grounds for lawful use of force by PC B upon Mr Black (nor indeed upon Mrs Black) and PC B was the aggressor, yet hid behind his badge of office as a Constable.
Sadly, the clarity of these facts was almost exactly matched by the unwillingness of Thames Valley Police to accept them.
As is often the case, the Police seemed determined not to ‘break ranks’ and to shield their officer despite his evident wrongdoing. This ‘wall of resistance’ causes many potential Claimants and their solicitors to abandon perfectly good cases.
I believe it is very important that experienced solicitors such as myself and determined clients such as Mr and Mrs Black continue to hold the police to account to ensure that officers do not abuse the special protections given to them by the law, something which is ever more important in what Mrs Black described to me as these “changing and challenging” times.
Only by actions such as this, as a necessary antidote to the institutional bias of the police in favouring their own officers against members of the public, can the robust health of our civil law be maintained and strengthened.