The disturbing video below shows an incident which occurred around midday on 4 December 2016 when my client Shaun Kennelly, then aged 19 years, was mowed down by an unmarked Volvo police car, being driven by PC Copland of Nottinghamshire Police.
Shaun had been spotted by the Police whilst driving in a Rover motor car in a dangerous manner; PC Copland had pursued the Rover (with his blue lights and sirens activated) and then, when the Rover had broken down near a traffic island, Shaun had fled from the vehicle, running along the carriageway.
It can clearly be seen on the video that PC Copland chose to continue his pursuit of Shaun by driving his own car at high speed, and that pursuit came to an end when PC Copland not only drove into, but over Shaun’s body, as the teenager attempted to reach the kerb. Watch what happened here:
As you can see, the front off-side wheel of the Volvo caught Shaun’s lower leg causing him to fall to the ground, face down. The wheel then ran over his upper body, including his torso, right shoulder and right arm, then it ran over the right side of Shaun’s head and mounted the pavement before coming to a halt.
Shaun can only remember part of what immediately followed as the shock and force of a car been driven over his head had rendered him semi-conscious; he can, however, remember being dragged out by his legs from underneath the car by a police officer.
PC Copland appears to have given little or no consideration to the obvious risk that Shaun might have suffered spinal injuries which could be significantly worsened by his being quickly and roughly moved; instead, having dragged Shaun out from under the car, he almost immediately set to handcuffing the young man’s hands behind his back. Shaun was then propped up into a sitting position, against the wheel of the Volvo.
It is my opinion that, notwithstanding Shaun’s own reckless behaviour, and the offence of dangerous driving he had committed, PC Copland’s pursuit of Shaun in the car was more reckless and more dangerous, risking Shaun’s death by the manner of the pursuit. The officer then displayed an uncaring attitude towards Shaun – treating him as a ‘prisoner’ when he needed first to be treated as a patient, just having had a police car roll over not only his body, but also his head.
The Police are fully entitled to use reasonable force to apprehend those suspected of a crime, but if we were to look the other way when Officers use force that is unnecessary/ disproportionate to the circumstances, then the rule of law is endangered, and it is essential that we at least have a mechanism in our civil justice system to rectify and control such abuses of power by the Police – especially if the criminal justice system is not prepared to do so.
Shaun was taken by ambulance to a nearby hospital for treatment. He was in pain all over his body, especially to his legs and was diagnosed with a fractured right kneecap, an injury to his left Achilles tendon, cuts to both hips, a bruised pelvis, a cut to his left ankle, as well as a haematoma and cuts and bruising to his right eye socket and a soft tissue injury to his left shoulder. Frankly, I think his injuries could have been far more severe. Shaun was placed in a full- length plaster cast to his right leg and sent back to Police custody to be interviewed.
It is telling that the hospital records indicate that when the Police brought Shaun in for treatment, they were telling the emergency doctors that Shaun’s injuries had been caused by him first hitting the bus; however, those same records record Shaun’s protests of the truth of the matter – that the Police car had simply run him down.
Shaun was subsequently convicted of dangerous driving and driving with no insurance. He was sentenced to 12 months in custody and disqualified for 2 years and 7 months.
Subsequently, the Independent Police Complaints Commission (IPCC) reviewed the incident and recommended that it be referred to the Crown Prosecution Service; the CPS were sufficiently concerned by what they saw to cause PC Copland to be charged with dangerous driving, and the matter proceeded to trial on 9 January 2019.
However, the presiding judge at Leicester Crown Court, His Honour Judge Dean, accepted the officer’s submission that he had “no case to answer” halfway through the trial, and directed the jury to deliver a verdict of not guilty on the basis that “no jury, properly directed, could reach the conclusion that he [PC Copland] was guilty of the offence [Dangerous Driving]”
PC Copland denied any intention to deliberately collide with Shaun, stating that his intention was simply to get ahead of Shaun and “block” his path, and then get out of the car to detain him on foot; he claimed not to have heard, saw or felt any impact between his vehicle and Shaun’s body, and claimed to have thought that Shaun had collided with the back of the passing bus, and that he had then fallen to the ground as the officer’s vehicle “came alongside him”. I would describe this as dramatically different from the images captured by the bus CCTV, but in any event the only sanction PC Copland was ever to face for this incident was the very minor disciplinary black mark of “management action.”
We should pause for thought here to note, once again, how important the video evidence produced by modern ‘surveillance society’ is to cases of this nature; if we didn’t have the bus camera CCTV – would anyone have believed the convicted criminal who said a Police officer had recklessly run him over, or would the Police account of Shaun colliding with the bus have been preferred?
Following the conclusion of the criminal process, Nottinghamshire Police decided that this was not a matter of ‘conduct’ but only rather ‘performance’ and that the only sanction PC Copland should face would be “management action in the form of a reflective discussion with the Chief Constable, which included reviewing the CCTV footage” (probably over some coffee and a biscuit, might I dare add?). The Independent Office of Police Conduct (IOPC) did not challenge this, notwithstanding that the original investigation conducted into this incident by its predecessor organisation (the IPCC) had concluded both that PC Copland had a case to answer for gross misconduct and that he might have committed a criminal offence, by the manner of his driving.
Civil Proceedings under the Criminal Justice Act 2003
In cases such as this – injuries inflicted upon individuals subsequently convicted of a criminal offence – the Police do not only have the sympathy of the criminal courts, and the fact that the law has always permitted any reasonable use of force in effecting a suspect’s arrest, they also have the additional (and possibly inadvertent) protection afforded by another piece of legislation – namely the Criminal Justice Act 2003.
Section 329 of the CJA 2003 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 Court can only grant permission for claims such as Shaun’s to be brought, therefore, where there is evidence of grossly disproportionate force or (even more rarely) evidence that the person using the force against did not honestly believe it was necessary.
Prior to 2003, the existing law as to use of force by Police officers affecting arrests was that set out in Section 3 of the Criminal Law Act 1967 and Section 117 of the Police and Criminal Evidence Act 1984, which provides that “reasonable” force may be used. I am not the only lawyer to have observed that Parliament almost certainly did not intend for S.3 CJA and S.117 PACE to be ‘replaced’ by the higher bar of “any force that is not grossly disproportionate” when it came to Police officers exercising powers of detention/ arrest, but that was what in fact has occurred in practice.
The legislation in question arose from the famous 1999 case of Tony Martin, who had been convicted of murder, later reduced to manslaughter, for shooting dead a 16 year old burglar; Martin was subsequently unsuccessfully sued by the young man’s accomplice, whom he had also shot during the incident. The premise behind the Criminal Justice Act was therefore to reassure the public that people defending themselves or their property from attack would have greater security against being sued by criminals in the event that they misjudged the force they should use in the heat of the moment. In effect, however, it is not private citizens who have time and time again called upon the protection of the CJA 2003 to frustrate claims for compensation arising from life-changing injuries inflicted upon individuals subsequently convicted of criminal offences, but rather the Chief Constables of England and Wales.
This was recognised by the Court of Appeal in the leading case of Adorian v The Commissioner of the Police of the Metropolis [2009] EWCA Civ 18, wherein, at paragraphs 6 and 7 of the judgment, the Court noted that S.329 “…has nothing on the face of it to do with policing” and that it had seemingly been enacted by politicians who had in mind “…what one can call the Tony Martin situation – a sudden encounter with a crime…it gives the individual a defence of honest, even if unreasonable, belief in the need for his or her act; and it forfeits the defence only if the act was grossly disproportionate. There is nothing on the face of the section or in its shoulder-note which manifests an intention to afford the police a novel protection from claims by offenders for objectively unreasonable or unnecessarily violent arrests.”
However, the Court of Appeal noted, that in the years since the legislation came into force in January 2004, it had only ever been Police defendants who had relied upon this section, cautioning “The consequences should not go unnoticed” and rightly warning that we should not compromise “the principle painstakingly established in the course of two centuries and more, and fundamental to the civil rights enjoyed by the people of this country – that an arrest must be objectively justified and that no more force may be used in effecting it than is reasonably necessary… Conscious of art. IX of the Bill of Rights 1689, we say only that there is no indication that Parliament was aware, much less intended, that what it was enacting would have this effect.”
In the years since then, this defence designed to help the ordinary person who finds themselves in over his or her head in a frightening situation where danger has sought them out, has to my knowledge remained in practice the exclusive province of the Police professional who is actively seeking to arrest somebody – but seeks to avoid accountability for ‘going over the top’. The polite words and sentiments of the Court of Appeal, and invocation of the old ghosts of British liberty and civil rights, have not dissuaded Chief Constables from regularly relying on S.329 to prevent people in such circumstances bringing a claim – creating another hurdle which they need to clear as well as the fundamental one of establishing liability – the goalposts are moved further away; it is a deliberately uneven playing field – and that is exactly what the Police sought to do in Shaun’s case as well.
People who are convicted of a criminal offence are justly punished for that offence by the sentence they receive – and the social stigma which accompanies it; they should not in addition be rendered ‘second class citizens’ with less basic constitutional rights than other people, by means of the inadvertent effects of a statute which had as its primary focus an intention to protect ordinary citizens, rather than an intention to grant ‘immunity’ from civil claims to Police officers who use objectively unreasonable levels of force upon their detainees.
Despite the strenuous opposition of Nottinghamshire Police in this case, I was successful in obtaining permission for Shaun to bring his claim at a hearing at Nottingham County Court in December 2020, and thereafter the Chief Constable rapidly moved to settle the claim for a five figure damages sum. This settlement was reflective of the fact that Shaun had got off rather lightly in terms of the long term effects of his injuries, which could have been a lot worse – but also reflective of the fact that once the artificial barrier of S.329 had been removed the Chief Constable and his officer had no place to hide from the light of full court proceedings: this was without question a grossly disproportionate use of Police force, which could have ended a man’s life in slightly different circumstances.
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