The problem of self-diagnosis

There  is no generalised principle of liability for police failings only a series of specific torts and Statutory Provisions, each governed by its own conditions.  In order to qualify for a right to compensation, Claimants must be able to present their claims in such a manner that they fit within the structure of an existing tort or law.

In the ‘Google age’  in which we live,  because information on the web is so unfathomably plentiful, so readily available, and so disorganised, it’s easy for the layman to jump to conclusions as to what heads of claim are available to him.  A lot of the legal information available for free online is, in fairness, accurate and reliable.  The problem, however, is that even though that information is reliable, legal issues are complicated and someone without a legal background may come to the wrong conclusions.

This position is aggravated by the fact that some individuals who have been let down by the Criminal Justice System  don’t necessarily trust the advice of solicitors and barristers that they approach.

A case in point is that of a client whose case is presently ongoing. He was arrested and during the course of his arrest was CS gassed, manhandled and then handcuffed before he was taken to the Police Station and detained for several hours before being released with no further action.

Here’s what happened.

On the date in question, my client was in the City Centre. At or around 14:35, he encountered his uncle, by chance.

Following a short conversation between my client and his uncle, my client and his uncle agreed to share a drink in a local park.

My client and his uncle purchased some cans of lager and made their way to the park where they sat on a public bench.

My client opened his can of lager and began to drink from it.  As my client and his uncle were sitting on the bench, an unknown man approached and joined them.

At or around 15:00, my client became aware of the presence of two Police Community Support Officers (“PCSO”).  One of the PCSOs approached the ground and requested that they refrain from drinking alcohol and mentioned that the area was a designated public place.

My client said that he was unaware that he was not allowed to drink in the area and asked if there were any notices in the area to inform members of the public of this law.  The PCSO said that there were notices in the area but that he did not know where they were.

My client placed the open can of lager underneath the bench on which he was sitting.  The PCSO did not at this stage ask my client to surrender the can of lager and my client did not consume any more alcohol.

The PCSOs stood some metres away from my client, his uncle and the third man, occasionally glancing over at them.

After several minutes, one of the PCSOs approached my client again and informed my client that he had a right to confiscate his drink.  The PCSO then picked up the can of lager from beneath the bench on which my client was sitting .

My client, believing that he had complied with the PCSOs instruction not to consume alcohol, thought it unnecessary and inappropriate for the PCSO to attempt to confiscate the can.

My client therefore also took hold of the can of lager that the PCSO was holding.

Since my client and the PCSO both now had hold of the can of lager and were attempting to take possession of it, some of the contents of the can of lager spilled over my client and the PCSO.  The PCSO eventually released his grip on the can.

My client proceeded towards a public bin, emptied the remaining contents of the can of lager into a flowerbed and placed the empty can into the bin.  My client then walked back to the bench and collected  his possessions.

My client announced that he was irritated and that he was leaving and began to leave the park.

The PCSO followed my client and told him that he had called the police to speak with him.  My client then left the park.

As my client was crossing a nearby street, two police officers ran towards my client.  Both officers were wearing plain clothes. What happens next is caught on police officer body cameras.

One officer, PC B introduced himself to my client.

Without identifying himself as a police officer, PC B told my client that he was under arrest for assault.  My client was shocked and surprised and said, “Assault?”

The officers then began to try to handcuff my client. He was then told to hold out his arms or he would be sprayed with CS.

My client asked, “Who did I assault?”

PC B then deployed his CS incapacitant spray on my client, at an extremely close distance.

My client turned away from the CS spray, before turning back to face the officers.  PC B then sprayed my client with the CS spray for a second time.

My client asked again, “Who have I assaulted?”. 

The officers took my client to the floor and held him on the ground.  My client told them, “I have assaulted no one”.

My client was handcuffed and  then escorted to a police vehicle before being transported to the nearest Police Station. As he was led away, some members of the public who had gathered to watch queried the actions of the police officers.

At the Police Station, it was recorded on my client’s custody record that he had been arrested for ‘Assault Person Assisting Constable’.

My client was thereafter interviewed.  He provided a full and detailed account, in which he denied assaulting the PCSO.

Both I and my client agreed that he had viable claims for false imprisonment and assault/battery but my client also wanted to bring a claim for other heads of claim.

What were those other heads?

Breach of Article 5 Human Rights Act, i.e. the right to liberty.

Yes, it’s true that my client’s liberty had been interfered with but he had a perfectly valid claim for false imprisonment so why bother with an additional claim under the Human Rights Act?  People get very excited about establishing a breach of Section 6 of the Human Rights Act but the fact is that establishing a Common Law Tort, i.e. false imprisonment, results in a significantly higher compensation award than under the Human  Rights  Act (and there is no double recovery, i.e. you can’t  recover damages for both false imprisonment and breach of Article 5 of the Human Rights Act in respect of the same act of imprisonment).

Misfeasance in Public Office

To establish misfeasance, my client (and the burden of proof lies on him as the Claimant) would need to show that the officers exercised a power;  and that they intended to injure him by their acts; or the officer knowingly or recklessly (in the subjective sense) acted beyond their powers; and the officers’ act caused damage to the Claimant; and the officers knew or were subjectively reckless to the fact that their act would probably cause damage of the kind suffered by the Claimant.  But in this case, there was no clear evidence of bad faith (or in other words, malice) by the arresting officer.  In the circumstances, there was no merit in pursuing such a claim.  The correct level of compensation can much more easily be obtained by suing in the tort of false imprisonment where there is no need to establish deliberate malice on the part of the officer/s (as opposed to incompetence, mistake or misjudgement).

Malicious process

My client realised that because it had been decided at the Police Station that no further action should be taken, he wasn’t prosecuted and therefore he couldn’t pursue a claim for malicious prosecution.  Instead, he sought to persuade me that he might have a claim for malicious process.  Malicious process is established where the Police instigate a process against an individual that falls short of a prosecution. The most common example is when the police apply for a search warrant. This did not apply to my client’s case. He was arrested by the officer  who was using his general powers granted by the Police and Criminal Evidence Act.


This enables an individual to sue a person or organisation for damage to his reputation. Here my client had been arrested (and therefore detained) and so compensation for damage to reputation is included in the claim for false imprisonment, and I therefore explained to him that an additional claim in defamation would be redundant /unnecessary.

Pursuing a claim should be a collaborative process between the client and his lawyer but it is essential  in my opinion that ultimately the client heed and follow his lawyer’s advice.

Following a lengthy discussion, I am pleased to report that my client accepted my advice and accepted that his “self diagnosis” was inaccurate; his claim was rightly limited to false imprisonment and assault/battery only.

One final word on this issue.  The Claimant who establishes some heads of claim but not all, can be penalised in costs, for the Defendant Police Force will assert that the Claimant was only partially successful and therefore should not be awarded his costs in full.  There would then be a reduction in the award of damages to cover any costs awarded to the Defendant. In short, a wise claimant will pursue the strongest heads of claim only, following full and considered advice of his lawyer.

My client’s claim continues. The Defendant has filed a robust defence and the case proceeds to trial. I am confident of success.

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.

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