It is just over 30 years since the Police and Criminal Evidence Act 1984 (PACE) and the codes of practice came into force. The Act provides a core framework of powers and safeguards around arrest, detention, investigation, identification and interviewing suspects and helps ensure that the police remain subject to the rule of law.
Whilst PACE was undoubtedly a major step forward from the bad old days of poorly regulated policing (think ‘Life on Mars’…) one flaw in the Act is that it only provides after the event remedies for people who have suffered from unlawful police behaviour. There is no mechanism by which the citizen can stop the wrongdoing being perpetuated against him by the police; all he can do is bring a complaint or civil claim for compensation, after the damage has already been done.
I was reminded of this issue when instructed by a young Liverpudlian man, ‘Michael’ (name changed) who was arrested in December 2012.
On the day in question, Michael was at home with his (then) 2-year-old son when someone caused damage to the front door. He immediately contacted the police to report the incident. Earlier that week, Michael had an argument with his girlfriend’s brother and erroneously assumed that he was responsible.
After a short time, Michael’s girlfriend returned to the house. Michael decided to go for a walk to clear his head. He left with his dog. Whilst out and about, he was contacted by the police on his mobile phone and also spoke to officers in a patrol vehicle. Michael then returned home.
CCTV of the road in which Michael lived captured Michael returning to his home walking along the road with his dog before entering the house.
Michael entered the lounge area where he saw two police officers, PC A and PC B. Michael spoke to his girlfriend and asked what was going on. One of the officers jumped up and said to him “Who the fuck are you? Get the fuck out”. Michael replied “Who are you swearing at?” One of the officers then lunged towards Michael and attempted to seize hold of him. Michael protested, insisting that he had done nothing wrong, and that he was quite properly in his own home. Michael moved towards the hallway. The officers pursued Michael and chased him outside to the road.
PC A told Michael he was under arrest for breach of the peace. Michael put his arms into the air, again protesting that he had done no wrong. PC A and PC B then took hold of Michael and punched him on a number of occasions. Michael was in genuine fear for his wellbeing. He was punched further on multiple occasions, twice to the back of his head and on either two or three occasions to the side to the head. He was then forced onto the bonnet of the police vehicle and there subjected to at least two knee strikes. Michael was then dragged from the police vehicle and forcibly taken to the ground. Michael had his arms pulled backwards and was pinned to the ground by means of a foot placed on his back. In desperation, Michael managed to extricate himself from the officers and made off along the road.
As Michael proceeded along a neighbouring road he was approached by PC C who pulled up alongside him and requested his name. Michael told PC C that he was wanted and Michael surrendered himself. As he did so, he said “I just hope you’re not like the other officers”. PC C asked Michael to turn around which he did. PC C then handcuffed Michael and forced him up against some nearby steel railings, resulting in bruising to his chest. The officer then threw Michael to the ground and he fell heavily onto the right side of his face. Michael was then struck to the head on two occasions by what felt like punches.
Michael was then transported to a police station where the custody record indicates that he arrived at 18:05h. According to the custody record Michael ‘was arrested for Breach of Peace’.
The circumstances of the arrest were recorded as:
‘Breach of the Peace – officers dealing with incident at an address when DP (Detained Person) attends and is abusive, DP warned to calm down and leave but refuses DP removed from property continues to be abusive to officers refusing to leave location as such DP cautioned and arrested. DP becomes aggressive on arrest makes off and is detained restrained by officers detained’
Michael complained to the Custody Sergeant about his various injuries, requested to see a Solicitor and stated that he wished to make a complaint against the officers. Michael felt incredibly vulnerable and upset and advised the custody officer that he felt as if he would hang himself whilst in custody. Accordingly, the custody sergeant directed constant supervision. Meanwhile arrangements were made for Michael to see a Health Care Professional.
In an entry timed at 18:36h the custody record indicates:
‘DP has now been further arrested for resist/obstruct police – no reply’.
At 19:20h the custody record records that the Claimant was taken to see a health care practitioner who recorded that Michael was ‘calm and pleasant throughout’. In relation to his injuries, she noted that ‘he had red circular marks around both wrists. That his skin had been broken on his left wrist, where there was a graze. I noted that he had a small laceration to his 4th finger at the knuckle closest to his hand. That there was approximately 3mm of skin loss. I noted that he had grazes to his right inside knee area. I noted that he had grazes to his lower face, chin area on the right side. I lastly noted that he has 2 lumps to the back of his head on the left side and that there was redness seen at these sites. No other injuries were noted’.
At 20:49h, Michael’s nominated solicitor was contacted and advised that the police were ready to interview Michael. The solicitor advised that he would attend within 30 minutes and indeed he attended at 21:19h. Upon arrival, the solicitor requested a copy of the custody record which was handed to him and he then attended upon Michael. Michael denied any allegation of wrongdoing. The Solicitor advised Michael to give a full account in interview. The Solicitor then advised the police that Michael was ready for interview. Only then did the police announce that in fact contrary to what they had said at 20:49h, they were not ready for interview. The custody sergeant recorded as follows;
The DP’s solicitor ‘did not appear happy’ that officers were not ready for interview and had ‘already questioned another officer re: delay. ‘I then informed him that the delay was due to CCTV being obtained, officers mg11s (witness statements) and that officers had to see a medical professional re: injuries received during arrest. I also informed him that the DP had only been in custody for approximately 3 ½ hours’.
At 22:30h the custody record was endorsed to the effect that a new custody officer was now on duty and that continued detention was authorised.
At 23:01h, the Solicitor was contacted again to be advised that the police were ready to interview.
At 23:08h a review of detention was carried out by an Inspector who endorsed the custody record as follows:
‘DP makes the following representations, he has no issues with the treatment of the custody staff but is considering making a complaint against the arresting officers ….. Continued detention is authorised as being necessary in order to secure and preserve evidence relating to the offence for which arrested and to obtain such evidence by questioning’.
At 23:33h, the Solicitor re-attended the police station. CCTV footage of Michael going into the house and officers then chasing him outside was now available along with the statements of PC A, B and C. The officers gave very different accounts as to what had happened in the house and outside.
The Police account
In summary, the officers stated that they had attended Michael’s home address in order to take a crime report for criminal damage. As PC A began to complete the report, Michael walked into the house, pushed a pram across the room and immediately started shouting at his girlfriend saying “Your fucking brother is going to get it”. Both of the officers told Michael to calm down and to stop shouting and swearing. Immediately Michael became abusive and told the officers to “Fuck off, it’s my house”. Both constables warned Michael on numerous occasions to calm down however he refused to desist and his abuse continued. Michael was asked to leave the house whilst the officers dealt with his girlfriend, however again he refused.
As the officers felt that a further breach of the peace was likely should Michael remain in the house and as there was a 2-year-old child awake and present during the incident, PC B placed his right arm on Michael’s shoulder and ushered him towards the living room with the intention of guiding him out of the house. Michael began to resist and therefore the officer removed his hand. Michael then walked out of the property.
Somewhat remarkably, and according to the street CCTV footage, which showed that Michael was only out of sight and in the house for a very short period, all of this allegedly occurred in the space of 20 seconds.
On reaching the street, the officer alleged that Michael began to shout and swear again, waving his arms around and goading the officers saying “Am going to go fucking mad, what are you going to do now”. Such was Michael’s conduct, it was obvious that he was not going to leave the area quietly and should he remain, a further Breach of the Peace was likely as Michael was angry. On being told he was under arrest, Michael became even more angry and aggressive. The officers took hold of Michael who tensed his body and struggled. The officers placed Michael up against the police vehicle with a view to handcuffing him. Michael continued to struggle and in fear that Michael was about to headbutt one of them, PC A punched Michael with his right hand in the hope of disorienting him. Michael continued to struggle and pull away which resulted in the officers having to take Michael to the floor in a spinning motion. Due to the position Michael had landed it was difficult for the officers to get him into a ground pin position. Accordingly, PC B punched Michael twice to the rear of his right arm. By this time PC A was in genuine fear for his safety and that of his colleague and therefore requested urgent assistance. Meanwhile Michael was able to struggle to his feet and make off.
The available CCTV footage captured events outside the house. Notwithstanding that the officers had clearly viewed it (before preparing their statements?) the footage was overwhelmingly more consistent with Michael’s account rather than the officers’ account.
A short time later, PC C was driving in a neighbouring street when he spotted Michael. PC C approached him and asked for his name to which Michael replied, “You fucking know my name”. PC C told Michael he was going to search him and asked him to turn around. PC C then grabbed Michael’s wrist. In response, Michael tensed his body and began to pull away. Accordingly, PC C pulled Michael to the ground and secured the second handcuff. Michael continued to resist and struggle such that he tried to headbutt the officer. PC C was forced to strike Michael twice in the face with an open palm. Michael now tried spitting at the officer resulting in the officer having to hold onto Michael’s head.
By this time, PC’s A and B arrived and Michael was brought to his feet and placed into the rear cage of a police vehicle. Having already been arrested for Breach of the Peace, he was subsequently arrested for obstructing and assaulting a police officer.
In interview Michael gave a full account of the force used upon him by the arresting officers, which he said in terms was unprovoked. He indicated that the statements of PC A, PC B and PC C were untrue. In summary, he stated:
‘To be honest I’m the innocent one. I haven’t done nothing wrong. My window got smashed and I was the one who got beat down…. I just got in the house to see what’s up and then the two officers came straight at me. Why would I wanna throw anything in that living room where my son is?’…..
Viewing the CCTV during the interview, Michael observed:
‘You’ll see me. As soon as I go in I say “What’s going on, have you found him?” The next minute two of your colleagues chase me out of the door as you can see there yourself. I run out…. If I didn’t get out of the house I proper thought they were gonna batter me. And they have battered me’.
And, significantly, his solicitor observed:
‘Michael, you’re out of the house in 20 seconds.’
The interview concluded at 00:43h. Michael was returned to a cell and his solicitor left the police station believing that his client would soon be charged and released on bail.
At 03:00h Michael was charged as follows:
(1) behaved in a manner whereby a Breach of the Peace had been committed, contrary to common law;
(2) resisted Constable A in the execution of his duty, contrary to section 89(2) of the Police Act 1996.
Although the police had now charged Michael, his detention continued for a further 7 hours and 18 minutes, so as to prevent a further Breach of the Peace.
The custody record at 03:09h was endorsed with an entry by an Inspector who conducted a review of detention, noting that:
‘detention necessary to prevent further Breach of the Peace, DP states that he will hang himself if he has to go back into the cell that he has been in for 11 hours and he can’t handle it, I have spoken to the custody sergeant and he will arrange officer for constant observation , DP sits in glass room waiting for officer’.
At 09:33h the Solicitor called the police station to establish what had happened after he left in the early hours of the morning. Although not surprised that in spite of the evidence, Michael had been charged, he was outraged to discover that Michael was still in custody and immediately made representations to the Custody Sergeant.
At 10:08h the custody record was endorsed as follows;
I have reviewed the statements as requested by the legal representative. The statements of the officers record a breach of the peace regarding an incident at [the Claimant’s home address} and the DP’s behaviour directed towards his girlfriend’s brother. He was not present at the time of the incident, or at least he was not present when the comments were made in the presence of the police officers.
The solicitor has made representations that his client is being held to prevent a breach of the peace, and has queried whether this detention is necessary. I have looked at the MG7 which does not provide a great deal of information regarding the reasons for keeping the male in custody, and central to this decision was to protect the girlfriend’s brother. The DP has not been arrested regarding any of threats made towards the girlfriend’s brother.
I have spoken to the girlfriend on the telephone and she has informed me that this is the first time there has been an incident regarding Michael and her brother. I have also been informed that the dispute revolves around an unpaid debt of £20, which she states can be sorted amicably.
Michael’s girlfriend is happy for the DP to return to her address, and has shown no concern to her own safety or that of her brother’s safety.
I am satisfied that the initial arrest of Michael was lawful and that his detention at the custody suite was necessary. I am now at a position to consider the representations made by the solicitor and I have to agree with him that further detention is not necessary to prevent a breach of the peace and that the threats made towards the girlfriend’s brother have not been taken any further in relation to any other criminal matters, such as threats to kill.
In light of this, I do not believe that there is a further likelihood of a breach of the peace reoccurring, yet I am satisfied that the DP should still be charged with a resist/obstruct police offences and can be bailed as the DP has a verifiable address.
Having spoken to the DP, my opinion is that he is not suicidal and he states that he stated he wanted to hang himself last night due to an inability to cope when in a police cell. DP has no previous self harm history, and having spoke to his girlfriend I am satisfied that DP can be released without any concern to his mental/suicidal state.
At 10:18h the day after his arrest Michael was finally granted bail to later surrender to the Liverpool Magistrates’ Court.
On the basis of Michael’s instructions and review of available CCTV footage, Michael had been the victim of Police Misconduct.
To Michael’s credit, upon arrival at the police station he indicated that he wanted to make a complaint against the arresting officers.
To the custody sergeant’s credit, cognizant of Michael’s injuries and perhaps of his complaint, he organised an early medical assessment.
To the Health Care Professional’s credit, she performed a thorough examination and made a careful note of Michael’s injuries.
To the Solicitor’s credit,
- upon first arrival at the police station (having been told the police were ready to interview), he made representations as to the delay in the case progressing which he insisted should be recorded in the custody record;
- he believed his client’s instructions of innocence (a prerequisite you may say but in my experience often missing), reviewed the police evidence available and challenged the police account and legality of arrest in interview and afterwards;
- he encouraged Michael to provide a full account and rebuttal. There are times when criminal defence solicitors advise their client to go ‘no comment’. Given Michael’s assertion of innocence, it was in my opinion crucial for him to provide a contemporaneous account;
- he made robust representations to the custody sergeant as regards the legality of arrest, detention and charge. As is often the case, here there was a conflict over the facts. In such circumstances, the custody sergeant is unlikely to decide in favour of the suspect and the solicitor. Notwithstanding this the representations were again recorded in the custody record, albeit dismissed;
- he expedited other enquiries perhaps over and above what a standard criminal defence representative would do in the expectation that a complaint and/or civil claim would be pursued, for example he;
- arranged for Michael’s Injuries to be photographed.
- requested custody CCTV footage to be preserved as evidence of both Michael’s demeanour and what steps were taken at the police station as regards his arrest, detention and charge.
Michael later attended court where he pleaded not guilty and the case was adjourned for trial. Shortly before trial, the CPS issued a Notice of Discontinuance in relation to both charges.
Once the prosecution had ended, I was able to progress Michael’s case.
In light of my misgivings as regards the impartiality and effectiveness of the complaint process, Michael decided to pursue a civil claim only. The available heads of damages were false imprisonment, assault and battery, malicious prosecution and/or misfeasance in public office.
Once a claim was intimated, Merseyside Police investigated and soon advised that liability was denied, providing a very different factual account to that of Michael (see above). However, Merseyside Police clearly had concerns. Without prejudice, they advised that “as with all litigation, the Defendant is aware of inherent litigation risks”, and so offered to settle the claim for £4,500.00.
In light of Michael’s injuries, I commissioned evidence from both a GP (to report on Michael’s physical injuries) and a Psychiatrist (to report on Michael’s psychological injuries).
Thereafter, I issued court proceedings on behalf of Michael. As is standard practice, a robust Defence was filed and the case proceeded towards trial. Notwithstanding the contents of the Defence, Merseyside Police eventually put forward a revised offer of settlement and after negotiation Michael’s claim settled for £40,000.00 plus costs.
The success of Michael’s claim was multi factorial but part of it lay in the solicitor’s excellent representation both at the police station and immediately afterwards.
Sadly though, notwithstanding the excellent efforts made by Michael’s solicitor at the police station to highlight mistreatment of Michael and clear breaches of police rules and procedure in regard to his arrest and the unnecessary prolongation of his detention in custody, nothing could be done under PACE to get Michael released earlier, despite clear, ongoing breaches of the Act and the fact that each minute that he remained in the cell was clearly having a traumatic effect on Michael’s mental health.
In this, as in so many other cases, PACE failed to prevent police mistreatment and false imprisonment of Michael, and he was left afterwards to have to fight for compensation for the wrong that had been done and injuries inflicted on him, rather than being protected from those harms in the first place.