Long experience of actions against the Police has taught me exactly which obstructionist/ delaying tactics to expect from the lawyers acting for the Police and I thought I would share here my list of seven of their most ‘deadly’ sins.
1. Disingenuous Limitation Defences
In respect of personal injury claims (whether physical or psychiatric), Court proceedings must be brought within 3 years of the incident giving rise to the injury (if the injured person is an adult); whilst claims in respect of breach of the Human Rights Act (HRA) must be brought within one year of the incident – but the Court has discretion in regards to both such causes of action to allow the claim to be brought late i.e after those ‘limitation’ deadlines, provided there is a reasonable justification for this. Nevertheless, Police solicitors will frequently hide behind limitation arguments even when they know that it is equitable for a claim to be brought ‘late’ because of extenuating circumstances – generally because of delay directly caused by the length of a complaint investigation or the psychological impact which Police failings, abuse and/or criminal proceedings have had upon a person. This is a common tactic to keep Claimants under pressure and at a procedural disadvantage – no doubt utilised by the Police in the hope that this will cause the abandonment, or at least facilitate an under-settlement, of an otherwise meritorious and legitimate claim.
In other words, the Police solicitors seek to gain an advantage over potential litigants by raising limitation even when they know that Court discretion will almost certainly follow – such as in a Human Rights claim I am currently handling on behalf of a rape victim who suffered significant failings in the handling of the criminal investigation conducted by her local Police Force. The failings in question occurred in the second half of 2019, and Court proceedings were not issued until I was instructed by the Claimant in November 2021 – around a year after expiry of the primary limitation period for a HRA claim – but this has to be seen against the context of the Claimant having had to endure first the criminal prosecution of her attacker until late 2020 and then the misconduct proceedings brought against the negligent Police officers which lasted until October 2021.
Key guidance from the Court of Appeal in limitation disputes was provided by Sir Terence Etherton MR in Carroll v Chief Constable of Greater Manchester Police [2017] EWCA Civ 1992. The Limitation Act is specifically designed to protect Defendants from the injustice of having to fight stale claims, especially those in which any witnesses the Defendant might have been able to rely upon are no longer available, or have no recollection of events and/or there are no documents to assist the court in deciding what was done or not done and why. In Carroll, Sir Terence succinctly states-
“It is therefore particularly relevant whether and to what extent the Defendant’s ability to defend the claim has been prejudiced by the lapse of time because of the absence of relevant witnesses and documents……subject to considerations of proportionality …… the Defendant only deserves to have the obligation to pay due damages removed if the passage of time has significantly diminished the opportunity to defend the claim on liability or amount……”
Police lawyers are as aware of such guidance and Court rulings as I am but nevertheless frequently use the threat of limitation defences as spoiling/ delaying tactics, even when that defence has no real merit.
2. Delay by design?
The time limits in regards to the issuing of a claim are, as indicated above, quite clear and if there is in fact no good reason for delay, the expiry of that time will extinguish the victim’s right to claim.
Unfortunately, the time frame for the Police to provide a response to a letter of claim is much woollier; the pre-action protocol on personal injury claims indicates a response should be provided to any claim within 3 months of notification, but this deadline carries no real sting in the tail. If the Police fail to adhere to it, there is no specified penalty. Instead, a prospective Claimant is simply left in the dark, not knowing what the Police’s ultimate response will be, and with his or her solicitor often unable to properly advise about the merits of a claim in the absence of key evidential documents which are in the possession of the Police.
Such delay may be unavoidable in a complex case; or it may be due to incompetence or a lack of resources within the Police legal department – but sometimes it strikes me as a deliberate tactic designed to demoralise a Claimant by dragging matters out and leading them to question themselves/ lose heart in the process and their own solicitor. It must be proactively contested, and I am often required to do this on behalf of my clients.
3. ‘Twisting’ legislation
I have long experience of the Police penchant for hiding behind legislation which wasn’t originally intended to shield them from claims, but which has in effect provided them with a defence – a key example being the provisions of Section 329 of the Criminal Justice Act 2003 which prevents anyone who has been convicted of a criminal offence from bringing a personal injury claim in respect of force used against them at the time of their arrest, unless the force used was not merely “unreasonable” but in fact “grossly disproportionate”.
The legislation in question arose from the infamous 1999 ‘Tony Martin’ case; after shooting dead a 16 year old burglar, Martin was subsequently sued by the young man’s accomplice, whom he had also shot during the incident. The purpose of the Criminal Justice Act was to give reassurance to the general public that people defending themselves, their families or their homes from attack could not be sued by criminals unless they had gone ‘over the top’. In practice, however, it is not private citizens who have repeatedly invoked the protection of the CJA 2003 to frustrate or delay claims for compensation – but rather the Police.
Take, for example, the case of my client Robert, arrested for a very minor benefit law infringement, but who had his leg shattered by a Police officer who deliberately struck him 3 times with a baton whilst he was restrained/ lying on the ground. Robert had to satisfy S.329 CJA in order to bring his claim and then satisfy the Court at Trial that the force used against him was indeed “grossly disproportionate” in order to succeed (which he eventually did, after a long drawn out saga in which the Police appealed over the precise interpretation of S.329, resulting in an eventual damages pay-out to Robert of £100,000.)
Another piece of legislation often used in an unreasonable and obstructive manner by Police lawyers is the Mental Health Act 1983. Section 139 of the MHA provides that permission from the High Court is required before any claim – such as for false imprisonment or assault and battery – can be brought in relation to any incident in which the other party claims to have been relying upon powers under the Act. This is once more a rule which was not really, or certainly not primarily, designed to protect the Police – but rather to prevent mental health practioners from being harassed by vexatious and quite possibly mentally unwell ‘litigants in person’ – but which is nevertheless now used by the Police to shield themselves from legitimate claims, even when on the facts admitted by the Police it does not properly apply – most commonly because the incident took place at a person’s home, where S.136 powers cannot by definition be lawfully used. Nevertheless, by raising the spectre of “S.139 permission” – without which any court claim no matter how meritorious is a nullity – the Police can present a Claimant with considerable obstacle of time delay and cost, including the potentially daunting prospect of an appearance before a High Court judge.
As a result, I have over the years developed an extensive track- record of successfully unlocking the Court doors which the Police seek to close by reliance on one of these two Acts.
4. Bad- faith Denials of liability
Parties are expected to admit liability in good faith when they conclude that they are liable; the overriding objective of the Civil Procedure Rules being justice at proportionate cost and the ethos of pre-litigation behaviour being a “cards on the table” approach – but very often, Police forces – especially the Metropolitan Police Service – will pursue a policy of denying liability in the face of even the strongest claim – only to accompany their ‘denial’ with a ‘without prejudice’ – i.e confidential – and ‘low-ball’ offer of settlement, once again seeking to demoralise the Claimant, undermine his or her faith in the system and then offer what seems like an ‘easy out’ rather than the apparent alternative of hotly contested litigation potentially lasting years. On other occasions the Police will ‘try on’ a denial of liability only to make a volte-face and settle when threatened with proceedings. In many such cases where liability is clear cut, the Police cause wholly unnecessary heartache and cost to all concerned by issuing ‘bogus’ denials.
People often ask me when an early Police denial is received: does this mean the case will go to Trial? The answer is often no, but the Police want you to think that. They don’t fool me.
5. Dishonourable Part 36 offers
Part 36 of the Civil Procedure Rules is a procedure whereby a litigant can make an offer to settle the claim – without making any concession of liability, as the offer must remain confidential between the parties until the conclusion of the case, unless accepted. If such an offer is not accepted within the relevant period – generally 21 days after it is made – the offeror can expect the Court to penalise the other party in legal costs should they ultimately fail to do better than that offer, either by late acceptance of its terms or being awarded a lower sum of money at Trial.
Frequently, Police lawyers will make Part 36 offers when the full value of the claim remains unknown – because medical treatment for a physical or psychological injury is ongoing, for example – thereby putting the Claimant at serious financial risk in a situation where it is simply impossible to be confident about whether the offer can be beaten or not. Unfortunately, the Court rules have no sympathy for a Claimant put in this position – so it is essential that when the Police try to take advantage of ‘known unknowns’ such as eventual medical outcome in a complex case, you have an expert lawyer on hand who has dealt with such situations before and knows how to assess and minimise the risks you face.
6. Social Media Snooping
In this ‘online’ day and age Claimants are well advised to be aware that the Police are likely to go snooping through any available social media records which exist – particularly publicly viewable posts on the Facebook and Twitter platforms etc. People making posts on social media are generally, and quite understandably, trying to present a cheerful and rosy picture of themselves to friends and acquaintances – that is a natural human impulse and the very definition of what ‘socialising’ is. People present not a false face, but often a deliberately partial picture – not wanting to burden others with their real pains, concerns, hurts and worries in an environment that expects positive vibes and ‘putting your best face forwards’. Frequently, however, I have seen Police lawyers obtain clients’ social media posts and seek to exploit them as if they were private diary entries revealing how a person ‘really’ feels and attempting to contrast this to the Claimant’s account of psychological pain and suffering arising from their mistreatment at the hands of the Police, so as to sneeringly shout – or at least snidely infer – “There’s nothing wrong with her!”
Thus the case of my client Hayley Cunningham. The solicitors acting for British Transport Police assembled a ‘dossier’ of her Facebook posts in an outrageous attempt to call her honesty into question. The Police sought to rely upon a number of posts which were all from several years after the incident and which were about her going to exercise classes. As I summarised in my 2017 blog on Haley’s case, this material was –
“Nothing out of the ordinary at all; just run-of-the-mill (or should that be treadmill?) group fitness classes, which my client had participated in, in order, partly, to help build up her social confidence and mental health after the terrible effects of her arrest, imprisonment and prosecution. The Police were, in my opinion, quite unscrupulously, now trying to use these ‘posts’ to suggest that Hayley’s dizziness at the top of the railway station steps must have been due to drunkenness rather than constitutional/ health reasons – as if her ability to participate in a planned exercise class (‘on the flat’ in a gymnasium) years later had any relevance to how she was after climbing 160 stairs years before! It was palbable nonsense – but showed the lengths the Police were prepared to go to in order to frustrate Hayley ’s claim, and demoralise her.”
I am pleased to report that I was, ultimately, able to get the ‘social media’ evidence thrown out at a pre- trial hearing before a Judge who agreed with me that it was irrelevant to the case. Nevertheless however, Hayley had to experience this unwarranted intrusion into her private and social life and I raise this as an example to caution any potential litigant against the Police that they could also face such unscrupulous tactics.
7. Drip- feeding Disclosure
This is another spin on the delaying tactic I have described above, whereby Police lawyers seek to frustrate the Claimant, undermine their will to continue – and, perhaps, undermine their faith in their own solicitor – by responding to the Claim but not providing all of the evidential documentation which they should, leading the Claimant and his lawyer to have to pursue them for documents such as video footage, officer’s complaint histories, officer’s notebook entries, investigation logs etc which could and should have been provided ‘up front’. Often the Police legal team will blame delays within data disclosure units, adopting a frustratingly passive- aggressive stance. A variant of this tactic is where the Police actually admit liability BUT fail to provide any documentation at all – arguing that body camera footage and/or officer statements are no longer relevant for disclosure because ‘the game is up’ and liability is admitted. Of course, the fact remains that admitting an arrest was unlawful does not necessarily mean that all of a Claimant’s allegations about the outrageous nature of that arrest, the derogatory or abusive attitude of the officers or the level of force used is admitted… Very often the Police will attempt to hide their own dirty laundry behind an early admission of liability in the hope that disclosure will then not be pursued.
Fortunately, I am well versed in this as well as the delaying tactic and can advise clients how to circumvent it by utilising Court proceedings – including the efficient mechanism of a pre-action disclosure application which allows a potential party to a claim to obtain an order requiring the other party to produce the documents which are of key relevance to the merits of the claim.
All of these tactics are a reason why you need a highly experienced lawyer fighting your claim who knows them well, and better yet, knows how to beat them. Indeed, I relish getting to grips with the Police on all of these battlefields. If you believe you have been wronged by the Police don’t hesitate to contact me for expert advice and representation.
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