This week’s blog post concerns incompetence and overreach of powers by West Midlands Police in the form of their unlawful arrest of my client Asif Hussain.
Several days prior to the index incident Asif had attended his mother’s house, where his brothers and nephew reside as well. An ambulance was called for my client’s elderly mother as she was unwell, and an argument occurred between Asif and his brothers regarding their treatment of his mother. My client’s nephew then assaulted him and police officers attended, however Asif reasonably declined to make a criminal complaint against his nephew.
On 19 November 2021 at approximately 10:35 am Asif was asleep at his own home in the Sandwell area of Birmingham. Two officers from West Midlands Police, PC Weaver and PC Pugh, attended. The officers proceeded to knock on the front door, however this did not awaken Asif. On not receiving a response the officers proceeded to peer in through the front windows, attracting the attention of passers-by. The officers then returned to the front door where PC Pugh began to bang on the door and shouted Asif’s name through the letterbox.
PC Weaver then climbed over the garden gate, damaging a fence panel in the process, and entered the rear garden of my client’s house. The officer then looked through a rear glass door before trying the handle and discovering it was locked. All of this was captured by my client’s home CCTV security system.
Asif’s son now woke him and informed him of the officers’ presence. Asif opened the front door and PC Pugh immediately stepped, uninvited, inside the property. Asif’s son recorded the subsequent conversation between his father and PC Pugh on his mobile phone.
PC Pugh said that he needed to speak with Asif, who replied that they could speak where they were, however PC Pugh refused and insisted on coming further into the premises. Asif declined to allow PC Pugh further entry into the house and asked if he was under arrest. Asif assumed that the officers had attended to arrest him in relation to the previous incident with his nephew, and certain of his own innocence, and not wanting to make a fuss, put on his shoes and said to PC Pugh to “I know what you’re here for … just do the honours”. Asif then voluntarily stepped out onto the doorstep of the house, whereupon PC Pugh took hold of his right wrist and placed him in handcuffs to the front, which were applied extremely tightly. Over and above this discomfort however, Asif was concerned and embarrassed that his neighbours might see him in handcuffs, and so requested that his son place a coat over his wrists to conceal the handcuffs. He felt quite correctly felt that this use of force was grossly unnecessary, given his entirely compliant behaviour and demeanour.
Whilst this was occurring PC Weaver tried but failed to get back over the premises’ garden gate. Instead, he climbed the fence and entered the garden of a neighbouring property, exiting through their gate and joining my client and PC Pugh at the front of the house.
PC Pugh and PC Weaver then escorted Asif over the road, as they did so PC Pugh told Asif “We’ll jump in the van and then we’ll have a conversation”. Asif was placed into the rear seating area of the police van, accompanied by the two officers who closed the door of the van, apparently to prevent Asif’s son from continuing to record their interactions.
PC Weaver only now informed Asif that he had been arrested for malicious communications in relation to a card he had allegedly sent to his brother. Asif asked PC Weaver to remove the handcuffs as they were too tight, but this was (quite typically) refused.
Asif was then conveyed to Oldbury Custody Suite. After approximately 30 minutes he was brought before the custody sergeant, PS Bains, and only now were his handcuffs finally removed. As recorded on Asif’s custody record PC Weaver gave the circumstances of arrest as:
IP, Shahid HUSSAIN has received a thanks card from the PIC (his brother) which states ‘2 murderers – it was really kind of you to make our mother suffer in pain with severe kidney infection – you have blood on your hands’.
PS Bains then took PC Pugh to one side and spoke to him out of my client’s hearing. After a few minutes PS Bains and PC Pugh returned, and PS Bains informed Asif that he could not hold him. PS Bains then endorsed Asif’s custody record with the following, to confirm that as the Custody Sergeant he was exercising his discretion to refuse to detain Asif:
Reason: From the circumstances I have been given from arresting officers I do not believe the offence of malicious communications has been made out. Therefore detention has been refused.
Asif was then released, although he was now stranded at the Police station and so forced to call his family to come and collect him. Sometime later he received a call from an officer at Perry Barr Police Station informing him that there would be no further action in respect of the allegation.
As a result of the use of handcuffs Asif was left with marks to his wrists that remained visible and painful for several days afterwards. He attended his GP who noted his injuries and that he had potentially suffered nerve damage. The GP recommended that Asif take painkillers and referred him to physiotherapy.
Of course, the effects of this incident upon Asif were not merely confined to the physical pain or temporary inconvenience – he felt humiliated and embarrassed and became deeply concerned about the impact that the incident might have upon his reputation in the local community, as well as suffering anxiety whenever visitors knocked on the door, in case they were once again officers coming to unlawfully arrest him. Asif understandably thought that neighbours might assume he was a ‘hardcore criminal’ given the length to which the over- zealous Police Officers had gone to gain entry to his property, including climbing over the garden fence.
The offence for which my client was purportedly arrested – Malicious Communications – is defined by the section 1 (1) of the Malicious Communications Act 1988 as follows-
1 Offence of sending letters etc. with intent to cause distress or anxiety.
(1)Any person who sends to another person—
(a)a [letter, electronic communication or article of any description] which conveys—
(i)a message which is indecent or grossly offensive;
(ii)a threat; or
(iii)information which is false and known or believed to be false by the sender; or
(b)any [article or electronic communication] which is, in whole or part, of an indecent or grossly offensive nature,
is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.
I would assume that it is obvious to anyone reading that definition of the offence, as it clearly was to Sergeant Bains, and comparing it to the ‘offending card’ that the statement in the card was neither threatening, indecent nor grossly offensive and PC Pugh and PC Weaver should have known this from the outset – however they appear to have given as little regard to this fact as they did to the question of whether it was really necessary to subject my client to painful imprisonment in handcuffs. The officers have focused only on the act of exercising their power and, crucially, not on its lawful justification. Perhaps the officers’ suspicion of the offence was honest – but it certainly wasn’t objectively reasonable. There also appears to have been a total lack of consideration by the Police as to whether the incident could have been dealt with by means of my client being invited to attend a non-custodial interview. This catalogue of failings led to the arrest of an innocent man.
The total period of Asif’s unlawful detention was (fortunately) only 50 minutes, but taking into account the aggravating features which I have highlighted above, being the adverse physical and mental impact upon Asif, I had no hesitation in rejecting West Midlands Police’s initial offer of settlement in the sum of £1,500 and have recently settled the claim for an agreed damages payment of £5,000 plus legal costs.
The default position of Custody Sergeants, in their role as ‘gatekeepers’ of the Police station is to agree with the opinion of their brother officers, and as a result the vast majority of arrestees become detainees following processing at the custody desk; the rare occasions when this does not occur are therefore clear ‘red flags’ that something has gone wrong, and if you have ever been in that position then I would urge you to contact me for review and advice. If a custody sergeant is rapidly showing a person the exit door rather than the cell door, the decision making and actions of the arresting officers deserve to be closely scrutinised and there will be strong prospects of a successful claim.
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