I presently represent a young black man. Back in 2012 when he was just 21 years old, he was in the park when he was targeted by a Police Officer for a stop and search. My client has always believed that the only ‘grounds’ for the search was the colour of his skin.
During this encounter, he was subjected to an aggressive assault by the officer, who used a choke-hold around his neck, causing my client to fear he might die. He was then taken into Police custody where he was further subjected to the indignity of a strip-search. The search was, of course, negative; my client was entirely innocent and had been doing nothing more in the park that day than walking his dog and eating a sandwich.
The Officer falsely maintained that he had suspected my client to have been a drug dealer, but during the course of a subsequent misconduct investigation it came to light that the Officer’s superior had concerns about the Officer’s pattern of conducting stop-searches on individuals during his lunch-hour, apparently in order to justify him putting his feet up for the rest of the day.
My client was, it seems the Officer’s latest victim in this regard, being subjected to a totally unnecessary level of force and humiliation.
My client immediately pursued an official complaint against the Officer, which to his increasing despair dragged on for nearly 6 years before resulting in the complete exoneration of the Officer at a Police misconduct meeting.
Undeterred, my client commenced Court proceedings against the Police for false imprisonment and assault and battery.
The Police filed a robust defence to the claim disputing my client’s account of events. Then three months before the scheduled trial, out of the blue, the Defendant Force admitted liability – though without any apology even after all this time, and making it clear that from their point of view they were admitting liability only ‘on a technicality’.
The case is now awaiting an Assessment of Damages hearing.
In addition to basic damages for pain, suffering and loss of liberty, my client claims aggravated and exemplary damages.
Aggravated damages are awarded at the Court’s discretion in addition to basic damages in exceptional cases where:
The Police have acted to aggravate the Claimant’s basic loss by causing injury to feelings, for example by insulting, humiliating, degrading, distressing and/or outraging the individual; and
It could result in the Claimant not receiving sufficient compensation for the injuries suffered if the award was restricted to a basic damages only.
Accordingly, aggravated damages are usually awarded in cases involving very serious misconduct/ misbehaviour on the part of the Police (whether individually in the form of the Officer committing the wrongful behaviour in the first place, or institutionally in the way the Police as an organisation have responded to the person’s claim/ complaint).
The Court has given guidelines on the circumstances which might justify an award of aggravated damages including:
- humiliating circumstances; or
- any conduct of those responsible in the incident which shows they have behaved in a high-handed, insulting, malicious or oppressive manner.
Aggravating features can also include the way litigation and trial are conducted.
An award of exemplary damages is even more exceptional than an award of aggravated damages, as the object of exemplary damages is to punish the Police rather than to compensate the individual.
The principle behind other types of damages (basic and aggravated) is to ‘make up’ to the Claimant for the wrong that has been done to him, and to, insofar as possible, put him back in the position he would have been in were it not for the wrongdoing. Exemplary damages go beyond that, in being designed to punish the Police, almost in the way of a ‘fine’ which they must pay (to the Claimant) on top of the other damages.
Exemplary damages can only be awarded if the Police’s wrongdoing constituted oppressive, arbitrary and/or unconstitutional action. They are designed to have a ‘deterrent’ effect to prevent such behaviour occurring again in the future.
There are, in my opinion, numerous reasons as to why aggravated and exemplary damages should be awarded in my present client’s case, but in particular because of how badly his complaint was investigated and handled, specifically:
- There was an abject failure by the Defendant’s Professional Standards Department to uphold my client’s complaints, despite clear evidence supporting what he said.
- My client had to repeatedly appeal to the then Police watchdog, the IPCC.
- The Defendant force has failed and continues to fail to provide any or any proper explanation to my client and/or to take full responsibility for the actions of its Officer.
- The Defendant force took no action against the Officer following a misconduct meeting.
- The complaints process lasted six years and concluded with no action.
Tomorrow, changes to the Police Complaint system come into effect which will, according to the Home Office, “shake up” how complaints against the police are handled. The changes will (they say) ensure that complaints are dealt with “quickly, effectively and proportionately, not just for the benefit of the public but also for the police”. As well as simplifying the complaints system, it is said that the changes mean Police and Crime Commissioners will have a greater role to increase independence and improve complaints handling.
Policing and Crime Minister Kit Malthouse has said that when Police Forces fall short of their professional standards:
“it is important to have a system that can quickly establish what has gone wrong, hold officers to account where necessary and ensure lessons are learned. These reforms will deliver this and ensure the public can maintain confidence in the integrity of our world-class police.”
The Home Office add that:
“the reforms will also deliver a more efficient system for dealing with police misconduct, making the investigation processes simpler and therefore quicker, including a requirement to provide an explanation where investigations take longer than 12 months and importantly, the reforms aim to make the discipline system more proportionate and encourage a much greater emphasis on learning from mistakes.”
The Home Office maintains that it has worked closely with various bodies to develop a comprehensive package of improvements. These include:
- simplifying the complaints system, making it easier to navigate and putting a greater emphasis on handling complaints in a reasonable and proportionate manner. An enhanced role for Police and Crime Commissioners will strengthen independence.
- further measures to increase the IOPC’s effectiveness and independence in investigating all serious and sensitive matters involving the police
- focusing the formal discipline system on breaches of professional standards that would result in formal disciplinary action, enabling line managers to focus on improving individual learning and behaviours in response to lower level conduct matters – based on a new Reflective Practice Review Process
- there are new provisions to improve the efficiency and transparency of misconduct investigations
- increasing the transparency of appeals against misconduct findings by replacing the current retired police officer as a member of the panel with an independent layperson and introducing new provisions to improve the timeliness and efficiency of proceedings.
Whilst certainly I welcome some of these proposals – specifically those geared towards greater transparency in proceedings, and increasing the independence of the misconduct panels, as well as beefing up the IOPC – long experience has taught me to be cautious about how much real change we will see as opposed to mere ‘window dressing’.
I am also highly suspicious of such phrases as “simplicity and proportionality” which could be used by Police Forces to minimise investigations of certain complaints, or even dispense with them all together, under the guise of “proportionality”.
Proportionality, i.e attaching a theoretical price tag to everything, can sometimes come at the expense of important matters of principle and is, in my opinion, often the enemy of justice and the last refuge of the scoundrel. Proportionality is, after all, a vague and subjective concept which here will be a tool in the hands of the Police, not the Complainant. What is very important to an individual who has suffered wrong at the hands of a Police Force, may be something arbitrarily deemed “disproportionate” to investigate by the Police themselves, for self-serving ends.
In the meantime, I’m not holding my breath in the hope that the new reforms will herald a sea-change in the way the Police conduct complaints, I will continue to pursue meritorious claims such as that of my present client, hoping to achieve a significant result in terms of an exemplary damages award which might go a longer way to encouraging the Police to treat complaints more fairly and independently, than all the pious words of a government report.