Back in September 2017, David Lammy MP produced his Government sponsored report on the treatment of black and ethnic minority (BAME) people in the criminal justice system in England and Wales. He concluded that
“BAME individuals still face bias, including overt discrimination, in parts of the justice system.”
I was thinking about Mr Lammy’s findings when recently bringing to a successful conclusion a claim for my client, Edward and his younger brother Simon, both British Citizens of Black African heritage.
Back in April 2016, Edward and his brother were arrested for attempted murder. The night before, a man had been shot outside a local pub. A witness saw the offender fire a gun from a specific vehicle carrying two men. The vehicle was subsequently identified as being used by a Mr Thomas.
By the following evening, Avon and Somerset Police established that Mr Thomas was at a particular location in Bristol. Firearms Officers attended and were given direction by the Senior Investigating Officer from the remote ‘Operations Room’.
Officers forced entry and the occupants of the premises were “called out” to find Mr Thomas. Mr Thomas was soon identified and arrested on suspicion of attempted murder.
Mr Thomas’ arrest had been planned by the Senior Investigating Officer and detailed in a considered arrest strategy. No other males were identified within this strategy.
Following Mr Thomas’ arrest, Officers entered the address to search for the firearm used and any other evidence.
The house was connected to another (via an internal door) in which my client and his brother lived. They were at home at this time. Drawn to the commotion, my client considered that the actions of the Officers in seeking to search both premises was unlawful in the absence of a warrant and made representations to that effect to the Officers. In fact, unbeknownst to Edward the Officers could rely upon Sections 18 and 32 of PACE having just arrested Mr Thomas.
It was at this time that the Firearms Tactical Advisor in the Operations Room directed the Officers on site to arrest “any other males of a similar age group” to the prime suspect, Mr Thomas. It was on this basis that Edward and Simon were also arrested.
Both brothers were transported to custody where the Custody Sergeant recorded and authorised detention on the basis that both Edward and Simon fitted the “descriptions of the offenders”.
A second Senior Investigating Officer had only just come on duty (and in fairness stepped in to cover “at short notice and with the minimal of briefing”) and within minutes of his arrival in the Operations Room, “the room exploded into a frenzy of activity” with the forced entry and arrest of Mr Thomas and confusion as regards the layout of the premises.
Against this background the Firearms Tactical Advisor directed the arrest of Edward and Simon. But on what basis? The Firearms Tactical Advisor’s job is to act as a communications link between the Operations Room and the Operational Firearms Commander at the scene relaying information and command decisions. He is not in a position of command and the Firearms Tactical Advisor was quick to lay responsibility for the decision to arrest the brothers on the Senior Investigating Officer. The Senior Investigating Officer in turn could not recall giving any such command and neither officer made any record of the grounds and reasons for the decision to arrest.
For an arrest to be lawful, it must be founded on reasonable grounds. This necessitates consideration of whether, objectively, it was reasonable to suspect the individual of the offence for which he was arrested.
In the Court of Appeal decision of Buckley and Others v The Chief Constable of Thames Valley Police it was stated that:
“Suspicion is a state of mind well short of belief. The threshold for establishing reasonable grounds for suspicion is a low one. It is an inherent possibility in the need for diligent investigations of serious offences than an innocent person may be arrested on reasonable grounds. Importantly, the correct approach to judgment upon the lawfulness of arrest is not to separate out each of the elements of the constable’s state of mind and ask individually of them whether that creates reasonable grounds for suspicion; it is to look at them cumulatively, as of course the arresting officer has to at the time.”
It is clear that the test for reasonable suspicion represents a low threshold for an arresting officer to meet. What is required to reasonably suspect a person of an offence falls far short of what would be required to charge them and thereafter to ultimately convict them of the same offence. The relevant information is that which was available to the arresting officer prior to the arrest, not any information that might have been gained afterwards, for example, during interview.
Notwithstanding this low threshold, it was clear that no Officer could argue that he had a reasonable suspicion to suspect Edward and Simon of being involved in the shooting.
This failure didn’t, of course, stop the Senior Investigating Officer in a subsequent review try to retrospectively justify arrest on the basis that Edward and Simon had been found in the company of Mr Thomas (albeit 16 hours after the shooting had occurred!).
It was therefore evident at an early stage that the arrest of Edward and Simon was unlawful, the arresting Officer not having reasonable suspicion to arrest.
Both brothers were kept in custody for 28 hours.
After 16 or so hours, both men were interviewed. Both denied any knowledge or involvement. As their time in custody approached 24 hours, the Investigating Officers decided that they needed more time and so sought an extension. The brothers criminal defence solicitor, Peter Denton, argued that they should be released immediately. He argued quite rightly that there was “not a shred of evidence …… that could credibly raise a reasonable suspicion that they were involved in the offence”. Notwithstanding Mr Denton’s robust replies, the custody limit was extended by a Superintendent given the “multiple lines of enquiry”that were ongoing and given that this was a “serious and complex case”, it was “reasonable and necessary for the investigation to be extended.”
Eventually the brothers were released on Police bail which was extended for nearly 9 months until they were eventually advised that no further action would be taken.
Shortly after this notification, Edward happened to be watching a TV programme in which I was interviewed. He made contact with me the next day.
Avon and Somerset Police soon enough offered £5,500 each to Edward and Simon in settlement. Some clients (and dare I say lawyers) are in this game for a quick deal. I advised my clients to reject these offers and fight on to recover a more just award of compensation. I’m pleased to confirm that after the institution of Court proceedings and extensive negotiations, both claims settled for £24,000 and £19,000 respectively plus legal fees.
Both of my clients strongly felt that if they were white, they would not have been arrested. Reflecting upon Mr Lammy’s findings (of institutional racism within the criminal justice system) and my own experience of having represented many young black people who have been unlawfully arrested (read more here and here), I do believe that the perception of black people, and black men especially, as being more prone to criminality is rife amongst Police Officers and that this prejudice informed the decision to arrest my clients Edward and Simon.