This week’s blog concerns a case I have recently settled that showcases three distinct police misconduct issues: old school brutality; modern abuse of police computer systems; and the chronic reluctance of criminal justice authorities to hold rogue officers to account.
“We provoked the breach of the peace…we could have sat down and spoke to him”
At the time of these events, my client Robert Clifford lived with his partner in Essex.
On the evening of 14 October 2019, Robert and his partner had an argument and she called Essex Police, alleging that he had slapped her.
PC Gardner-McLean and PC Brannan responded to the call. Upon arrival the Officers spoke to Robert’s partner at the front door and she advised that she wanted Robert removed from the house.
The Officers entered the premises at around 19.36 and found Robert in the kitchen. PC Brannan immediately pointed his taser at Robert and Robert turned to face the Officers. It was clear that he was under the influence of alcohol. At this point, Robert had his left hand in the front pocket of his hooded top, and his right hand down by his side.
Robert was told to remove his hand from his pocket, which he did, showing that he was not holding anything. PC Brannan then approached Robert and took hold of his arm. Robert pulled away instinctively.
PC Gardner-McLean then approached and handcuffed Robert’s right wrist. Neither Officer had informed my client that he was under arrest, and indeed PC Brannan later said that he did not have any intention to arrest my client at this point. The force they were using against him was therefore prima facie unlawful. A struggle ensued and Robert was taken to the floor face-down, with PC Gardner-McLean’s arm around his neck. PC Gardner- McLean was now straddling Robert on the floor.
PC Brannan then punched Robert in his jaw – described as a ‘distraction’ blow- whilst PC Gardner-McLean pulled Robert’s right arm behind his back. PC Brannan then grabbed his left arm.
In shock and distress Robert continued to struggle, although he remained face-down on the floor. PC Brannan’s assessment (as quoted in the subsequent complaint investigation report) was that the situation was effectively under control –
“I recall PC Gardner-McLean calling for assistance. At this time the situation was no more than a struggle between Clifford, PC Gardner-McLean and myself. Knowing that back up was only a few minutes away I did not feel the need to escalate the level of force above that that had already been used…”
However, PC Gardener-McLean then took out his baton and struck Robert multiple times, first to his back and then three times to the back of Robert’s head which caused him immediate and significant blood loss.
Such was the level of violence used by PC Gardner-McLean, Robert’s partner now intervened and pulled PC Gardner-McLean off Robert, whilst PC Brannan later described his own reaction as follows-
“I did not have hands on Clifford now as I was shocked at the level of force used by my colleague and I could not personally justify any further force towards Clifford at this point.”
Bizarrely, PC Brannan, whom we might describe as the ‘good cop’ in this scenario, then decided that he would respond to his colleague’s excessive force by tasering Robert to prevent any further conflict between the two men. He later described his rationale as follows-
“I was still taken back by the level of force used by PC Gardner-McLean. I made a quick decision that I would deploy my taser at this very point to eliminate any chance at all of the situation flaring back up, as I believed if Clifford felt my colleague trying to cuff him to the rear then Clifford would take the opportunity to struggle again. My decision to taser Clifford was also based on preventing any further injuries coming to Clifford and knowing that he had a head injury that needed assessing quickly as I knew it was caused by an ‘asp’…”
Some of us might think that in fact the appropriate use of PC Brannan’s taser at this point would have been for the officer to point it at his colleague…
Robert was then handcuffed to the rear, and a tea-towel had to be used to mop up the blood coming from his head wound. Other Officers now attended including Inspector Wisbey. PC Brannan took Inspector Wisbey aside and advised that he felt PC Gardner-McLean’s behaviour had been unacceptable as PC Gardner-McLean had “drilled a baton” into Robert’s head and “split his head open.” This serious expression of concern appears to have fallen on deaf ears, however; PC Gardner-McLean was not arrested and instead Inspector Wisbey excused him from deployment for the rest of his shift on ‘officer welfare grounds’. When he himself later viewed the body camera footage, Inspector Wisbey opined that he did not consider it to show “a loss of control, or a deliberate attempt to cause injury to a person for no reason.”
PC Brannan then also took Robert’s partner aside and apologised for his colleague’s actions, explaining that the only reason that he had used his taser on Robert was because he didn’t want PC Gardner- McLean to continue to use force on him.
The Body Camera Recording of PC Lawless, who was one of the ‘back up’ officers arriving at the scene, captured PC Gardner-McLean leaving the property with the words “I’m going to have to get out of here.” – a comment the officer later claimed he could not remember making.
Other officers, interviewed for the complaint investigation process, recalled Gardner- McLean saying “I have really fucked up” and “I think I’ve fucked up and really hurt him.” – more comments PC Gardner-McLean later said he couldn’t recall.
Meanwhile, PC Brannan confessed to his Sergeant: “We provoked the breach of the peace…we could have sat down and spoke to him.”
Injury and Investigation
Robert was taken to Colchester General Hospital for medical treatment, where a (thankfully minor) traumatic brain injury was identified.
After he was discharged from hospital, Robert was then taken to Colchester Police Station. According to the Custody Record, it was stated he had been arrested for common assault and assaulting an emergency worker x 2 i.e. the Police Officers. The arrest circumstances were said to be that my client was “alleged to have assaulted [his partner] – slapped to the face, cause no injury…. During the arrest, DP is alleged to have assaulted PC Gardner-McLean and PC Bannan.”
Following custody processing, my client was examined by a Health Care Professional and then interviewed. Subsequently, it was decided that no further action would be taken against Robert in respect of any of the alleged assaults.
Robert subsequently lodged a complaint which was investigated by the Independent Office for Police Conduct.
During this investigation, it came to light that PC Gardner-McLean had unlawfully accessed Police computer records regarding Robert, the incident and Robert’s complaint. Once again, it was PC Brannan who ‘blew the whistle’ about this after PC Gardner-McLean announced to him that he had discovered that the offences of “Assaulting emergency workers” (i.e himself and PC Brannan) were not going to be pursued against Robert. It subsequently transpired that PC Gardner-McLean had accessed the Police Computer system on numerous occasions to check on the progress/ outcome of the investigation, despite lacking a policing purpose to do so, and had also accessed and viewed Robert’s NHS records in relation to the injuries he had sustained at the officer’s hands. PC Gardner-McLean later tried to excuse his behaviour in this regard by claiming it came out of sympathy for Robert, stating that he wanted to “make sure he’s alright because I’m human.”
The suggestion of genuine concern for Robert’s welfare was thrown into doubt by the fact that PC Gardner-McLean also accessed records relating to other investigations involving Robert claiming that he wanted to see how other officers had treated Robert and see if there was anything he could have done differently. We may be sceptical about this rationale, and it certainly seems the IOPC were.
As a result of the brutal attack by PC Gardner-McLean, Robert was left with recurrent headaches and feelings of nausea as well as depression and a deep- seated distrust of the Police, which disturbed him.
The IOPC led investigation report was highly critical of PC Gardner-McLean’s behaviour on a number of grounds, summarising the evidence as follows –
- When officers arrived at the address Robert was calm and immediately removed his hand from his pocket when instructed to do so. PC Gardner-McLean was adamant that Mr Clifford had a knife concealed in his left trouser pocket – however PC Brannan was confident from what he could see that Mr Clifford did not have a knife. Indeed, at no point thereafter was Robert searched for a knife – and a valid question to ask is why, if PC Gardner-McLean genuinely thought at the time that Robert had a dangerous weapon concealed on him, he did not ensure that Robert was searched for that weapon.
- On arrival, PC Gardner-McLean made no attempt to communicate with Robert about the risk he posed/ establish whether in fact he did pose a risk. Furthermore, when placing the handcuffs on Robert, there was no attempt by PC Gardner-McLean to inform Robert that he was under arrest. This lack of communication/ explanation heightened tensions unnecessarily.
- PC Gardner-McLean in both his written statement and in interview under caution, claimed that he hit Robert only once to the back of his head “using not a lot of force” – however, PC Brannan described seeing Gardner-McLean strike Robert’s head three times, and this was supported by the Body Worn Video.
It goes almost without saying that the College of Police’s Code of Ethics requires that Officers must in all cases “Use only the minimum amount of force necessary to achieve the required result”. It is clear that an Officer has gone far beyond that requirement when one of his own colleagues is reporting his behaviour to other Officers in the immediate aftermath of the incident – an occurrence which we must applaud, at the same time as recognising its rarity.
Such was the level of force used by PC Gardner-McLean that he was not only investigated for gross misconduct but indeed for GBH (Section 20 of the Offenses Against the Person Act 1861).
On 20/11/19 PC Gardner-McLean was served with a Notice of Investigation outlining the following allegations:-
- That he used excessive force when he struck Mr Clifford with a baton.
- That he accessed confidential information relating to Mr Clifford using Police Computer Systems, without a legitimate policing purpose for doing so.
PC Gardner-McLean was interviewed by Essex Police under criminal and misconduct caution on 16 December 2019 and again on 12 March 2020.
Holding the Police to Account
Despite matters being referred by the IOPC to the Crown Prosecution Service in April 2020, a charging decision was not made until November 2020 and it was disappointing, although not perhaps ultimately surprising, given the inherent bias within the criminal justice system when it comes to the policing of the Police. The CPS decided to NFA (take no further action) against PC Gardner-McLean in regards to the offences of ABH and GBH, and instead charged the officer with just one count under S.1 Computer Misuse Act for unauthorised access to data.
Following the CPS decision not to prosecute for the offences of violence, the IOPC in collaboration with the Appropriate Authority (a senior member of Essex Police Professional Standards Department) decided that PC Gardner- McLean would not even face any misconduct charges in respect of his use of force.
Eventually, even the data misuse prosecution fizzled out, with the CPS concluding it was not in the public interest to continue, and therefore offering no evidence at Chelmsford Crown Court in June 2021. PC Gardner-McLean was to receive only a ‘written warning’ for his blatant misuse of the trust place in him in this respect: a mere slap on the wrist indeed.
In my opinion, PC Gardner-McLean’s behaviour after the incident, and indeed his wider treatment by the Force, seem to be indicative of the ‘one rule for us, one rule for everyone else’ culture which can become endemic in policing. He was not arrested despite his grossly excessive use of force; he was investigated but ultimately not prosecuted for that violence; and he clearly felt he could use the police database for his own personal purposes and get away with it – and effectively did so.
That was not the end of the story, however. I brought a civil claim on behalf of Robert, and faced with the threat of civil court proceedings, Essex Police agreed to pay out damages in the sum of £17,500 plus legal costs. It was clear to me that the Police did not want this case to see the light of day in a forum over which they have far less influence than criminal or misconduct tribunals.
Even in the face of great obstacles therefore, justice can be won for those victims of Police misconduct who have both the perseverance and courage to ride out initial disappointments and the guidance and expertise of the right lawyer.
Ultimately, Robert was let down by Essex Police, the CPS and the IOPC, but not by me.