This is a guest post by my colleague and fellow solicitor John Hagan.
My colleague Iain Gould wrote last week about his experience of the Police misusing their power of arrest in relation to two women who were never under suspicion of committing any crime themselves, but whom the attending officers accused of ‘obstruction’ for failing to answer questions about a third party.
Even more shocking than that scenario however, is the situation in which a victim of violent crime is himself arrested, for, in effect, failing to confirm the identity of his attacker…
Sadly, this situation is exactly what befell my client David.
David was enjoying a quiet night out with two friends, Alex and Tom, in a local pub. In the early evening, the three of them left the pub, with David intending to go home to his wife and young children. However, as they crossed the pub’s car park they noticed a group of males jumping over a nearby fence. David did not know who these men were, although he was aware that one of his friends, Alex, had earlier received a telephone call from someone with whom Alex had been arguing, possibly in relation to money. The group of males approached and shouted at David, Alex and Tom before, without provocation, suddenly assaulting them. This assault was caught on the pub’s CCTV.
During the course of the assault David was stabbed in the right hand and to the right side of his head/ neck. David immediately retreated back into the pub and was soon joined by Tom and Alex who had sustained similar injuries. Whilst our client was in the pub he received first aid from the bar staff.
Two of the attackers then entered the pub and shouted further threats before leaving.
As David was understandably shocked and distressed at the assault and concerned about his and his friends’ injuries, they decided not to wait for an ambulance but rather to walk to their local Hospital A&E, as it was less than 15 minutes by foot.
En route to the hospital, David and his friends were passing through a park when a darkly dressed individual shouted at them to stop. Fearing that they might be assaulted again, they briefly ran away from this individual before realising he was a police officer, and stopped. Shortly after stopping they were surrounded by several more officers.
David and his friends provided their details and informed the officers that they were the victims of an assault. Their injuries were obvious for the officers to see; indeed, two of them were bleeding from stab wounds. Alex and Tom were searched, although David was not. The officers informed David he was free to go, but suggested that he remain with them and await an ambulance. However, due to the close proximity to the hospital David and Tom instead walked to the A&E department.
David was seen by the A&E staff, who cleaned and dressed his wounds, including four staples for his head wound. Shortly after arriving at the hospital Alex also attended having been released by the officers. Due to his injuries Alex remained in hospital for several days, whereas David was released the same night.
At approximately 23.00 the same evening David telephoned the Police to ensure that they had his details in the event that they needed to contact him further. Around an hour later officers attended David’s home and took a statement from him regarding the incident.
The officers disclosed to David that having reviewed CCTV footage from the pub, they believed that one of the attackers was an individual, known to David by reputation, who was associated with organised crime in the area. On hearing this, David refused to ‘press charges’ for fear of reprisals. The officers asked to take David’s blood stained clothing, but as he did not wish to assist the investigation, he refused.
In the early hours of the morning, two days later the Police returned unannounced to David’s home, rudely awaking David and his young family. This time however, they had not come in their capacity as ‘protectors’, but rather as ‘interrogators’ – with a search warrant authorising them to seize David’s mobile phone and the clothes he was wearing during the assault. To his disbelief, David was arrested on suspicion of affray and conveyed to a local Police Station.
David was interviewed later that day and provided a full account, reaffirming that he and his friends were the victims of the assault. During his interview, David was played the CCTV footage of the assault, from which it was clear that he was a victim and not acting in an aggressive manner in any way.
David was released at 17:21 pending further investigation. This horrible matter hung over him for over 6 months before he was finally informed that he was to face no further action. Following his release David learnt that Tom had been arrested as well, and a week later Alex was asked to attend a voluntary interview. Neither Tom nor Alex were charged with any offences arising from this matter, but one of the males who had attacked them was later convicted of affray.
David subsequently instructed me to pursue a claim for wrongful arrest against the Police and after submitting a letter of claim on his behalf, I was able to obtain from the Police full disclosure of all the evidential material they had relied upon in their investigation.
The question was, did the Police have a justifiable basis for suspecting David of affray; or was this a case of draconian misuse of their powers, targeted so as to encourage David to ‘co- operate’ with their investigation into the real perpetrator, a local gangster?
The incident in question was reported to have occurred at approximately 18.40 and as early as 21.01 on the night in question (i.e. less than 3 hours later) it was noted that a Police patrol had viewed the pub’s CCTV footage of the incident and in a later entry timed as 01.58 the following day, David was correctly identified as a victim, and noted to be in fear of repercussions.
A more detailed summary of the CCTV footage from the pub was entered into the Incident Log at 07.48 on the day after the incident and stated as follows –
- Officers had reviewed CCTV footage, which captured the incident in full, which occurred in the Pub car park.
- The footage clearly showed a large disturbance, which commenced with the three victims (David, Alex and Tom) being approached by five males (identities unknown at this time). The five males commenced to set about the three victims, with numerous blows being delivered, and a large melee erupting.
- One of the victims (believed to be Alex) was knocked to the ground and appears to be kicked to the head.
- Thereafter, David, Alex and Tom entered the pub, and the offenders made off.
It is was therefore already clear from the CCTV footage, which captured the incident in full – and from all the subsequent statements made by Officers who viewed the said footage – that David was a victim of the assault, with he and his companions being ‘ambushed’ as they walked across the car park of the pub, and at no point did Daivd himself commit any acts of violence, not even in what would have been entirely legitimate self-defence.
Statements from officers investigating the incident also confirmed that the staff at the pub had identified David and his companions as the victims of the assault, who were simply attempting to ‘get away’ from their attackers.
However, notwithstanding the weight of the evidence demonstrating that David was in no way an aggressor, and was clearly a victim of the incident, the Police decided to apply for a Search Warrant for David’s home from the Magistrates’ Court. The information which the Police chose to lay before the Court misleadingly referred to the CCTV footage as showing “a large scale fight involving a number of people” without making any distinction between the aggressors and the victims in the incident, or confirming that David himself committed no acts of violence during the incident. The Magistrate considering the Warrant Application, on reading that summary, would no doubt have formed the view that David had actively participated in the fight, which could not in fact be further from the truth.
A further misleading description of the incident was given in the Wanted Person Report which was then generated in regards to David (prior to the execution of the Search Warrant at his address that night).
The description given in that report of the incident is as follows – [David] named as taking part in serious Affray in [Public House] car park…. CCTV shows a number of males involved in violent altercation which results in persons being taken to hospital.
Anybody reading such a description would no doubt immediately form the impression that David was a participant in a fight (and quite possibly had caused injury to other people), whereas anyone actually viewing the CCTV footage , which numerous Officers had access to prior to the Wanted Persons Report being generated, would know full well that David had not participated in any fighting, and rather after being assaulted – clearly unexpectedly- had immediately fled the car park, and taken refuge inside the pub.
In my opinion it was not only disingenuous, but in fact actually malicious, for a Police officer to describe a victim as “taking part” in the assault perpetrated upon him.
Despite the fact that the Search Warrant Application stated that the material being sought included “blood- stained weapons” the Officers on attendance at David’s home address –
- Made no attempt to search the property for the alleged “blood stained weapons”, strongly indicating that the Police did not in fact expect to find any such weapons on the property at all despite the statement to the contrary in the Search Warrant Application. This would hardly have been surprising because the Police were of course in possession of the CCTV footage which demonstrated that David was not an aggressor and at no point had produced or wielded any ‘weapon’.
- The premises search record confirmed that the search (such as it was) commenced at 00.25 and terminated at 00.54 and consisted of nothing more than David being requested to, and then providing to Officers his mobile phone and the clothing he had been wearing at the time of the incident. It is specifically noted that the Officers remained throughout in the hallway and rear living room of the house and made no attempt to search elsewhere, making it manifestly clear that no Officer present believed for one moment that “blood- stained weapons” were anywhere on the premises.
· Nevertheless, David was arrested on “suspicion of Affray” in front of his wife and children, and taken away to custody.
I repeat the point that the CCTV footage was available to Officers on the night of the incident, over 24 hours prior to David’s arrest, and it simply cannot be disputed that David, indeed, “offered no violence” and simply tried to flee from the scene of the assault. This was reinforced by the Police’s own “resume” of the pub CCTV footage which correctly describes David and his two companions as being “intercepted” by the five aggressors (i.e. there is no suggestion that they were looking for or intending to confront the group of aggressors). David was described in that document only in terms which make it manifest he was a victim i.e. “backing away” and “chased around the car” and “running towards the bottom of the screen ….. holding his right hand to the right hand side of his head.”
At no point had David committed any act which could possibly constitute Affray (S.3 Public Order Act 1986) which is defined as –
Using or threatening unlawful violence towards another…causing a person present at the scene to fear for his personal safety.
For all the reasons above I identified that David had strong prospects of succeeding in claims for assault and battery, false imprisonment and trespass to land and goods (or alternatively, malicious procurement of a Search Warrant) and I rejected the initial denial of liability which the Police put forwards.
There was no reasonable, objective basis for any Officer to believe that David was guilty of the offence of Affray arising from this incident. To suggest otherwise was nothing more than a perverse manipulation of the truth, and in my opinion the Police were guilty of a gross misuse of their powers of arrest and misleading the Magistrates Court with histrionic language about “blood stained weapons” and a blatant omission of key facts about the attack. The truth of the matter was that the Police were frustrated by David’s refusal to assist the criminal investigation of the actual perpetrator, and therefore started to treat David as a ‘suspect’ simply to get him to talk.
Faced with the threat of Court proceedings, I am pleased to report that the Police backed down, and settled David’s claim for a substantial damages payment.
Together, David and I were able to hold the Police to account for their abuse of power, and far more important than the financial settlement for David was his sense of justice being done. In David’s kind words to me-
“Thank you for believing in me and taking on my case.”
I am just happy to have played my part, hopefully helping to prevent ‘tactics’ such as this becoming part of the Police playbook.