Last week I wrote about the case of my client Mo Izhar, whose claim against Thames Valley Police was won at trial in Oxford County Court. This week I will highlight some of the Judge’s key findings, and what I consider to be the key lessons to be learned from this case, if you want to win a claim against Police.
Key Lessons to be learned from this Case
- If at all possible, create your own record of any potentially adverse interaction with the Police using a mobile phone, given your lack of control over the Police body cameras which are not always switched on when they should be.
It was notable during this Trial, how the barrister acting for the Police suggested, in the course of his cross examination of my client, that it was somehow a dirty or provocative trick by Mo to want to record the interaction on his mobile phone – as if protecting your rights to sue the Police, in an encounter which the Police have themselves initiated against you, is some subspecies of anti-social behaviour which should be frowned upon. Indeed, I suspect that a lot of barristers who conduct such a line of cross- examination at Trial are hoping that the Judge at least privately agrees with them. The barrister cast aspersions upon Mo for wanting to film the encounter, repeatedly using the word ‘sue’ as, I suspect, a dog- whistle intended for the ears of those members of the Judiciary who think that the emergency services should have special protection from “ambulance-chasers”….
The bottom line is that it is healthy for society that people make claims against the Police when they believe their constitutional rights have been infringed; no one should be abashed or ashamed about that, and indeed, I am pleased to confirm that this particular tactic by the Police barrister fell on deaf ears in this particular Court. But consider this: the Judge found that Mo was “Not confrontational, evasive or abusive” and should not be criticised for merely not being as cooperative as the Officers wished him to be; the Judge (HHJ Andrew Davies) also found that one Officer had repeatedly called Mo “a dick” in “an unfortunate exchange of words” – but how difficult would it have been for my client to prove those facts in the absence of video testimony? Would those important findings by the Court have simply fallen away through the gaps in the evidence left by the Officers’ mutual “attrition of memory” without those undeniable recordings?
- If you know or suspect that other public cameras may have recorded the incident – for example, as Mo’s case, and another notable case of mine which involved even greater Police violence on a petrol station forecourt – then take early and prompt steps, as Mr Izhar commendably did, to contact the local authority or business which controls those cameras and get a copy made for your own personal use.
- If the Police have detained you, whether by actual force or by verbal ‘command’ without formally arresting you – then always challenge them as to what the basis of their detention of you is, and if it is for the purposes of a search of yourself or your vehicle, insist upon them complying with the GOWISELY rules, in terms of the information which they are duty bound to provide to you and the written record of the interaction confirming their identity, thereby ensuring that there is an appropriate ‘paper trail’ evidencing the encounter and requiring the Officers to immediately justify their actions and hindering any future ‘reframing of the narrative’.
- Ask the Court to scrutinise the Officers’ actions not only through the lens of basic, compensatory damages but also aggravated and/or exemplary damages– i.e. those discretionary categories of damages which are designed to actively punish the Police for their conduct or to reflect the injury to a person’s feelings caused by the manner in which an unlawful detention or assault is carried out and also to allow the Court to reflect its disapproval of high-handed, oppressive, unprofessional and unconstitutional policing. That proved to be the case here, with the Judge making a significant award of aggravated damages in favour of my client, stressing his disapproval in particular at the Officers’ attempt to deny that a search had been carried out, and then in their apparent attempt to annoy my client by drawing out the process of producing the necessary paperwork, thereby causing Mo a “justifiable sense of outrage” at his treatment.
- Remember how often Police Officers ‘jump the gun’ by treating the driver of a car whose plates have been cloned with the assumption that he is the criminal, rather than the victim of crime (which is actually the more likely scenario, on the basis that cloned vehicles used for the purposes of crime will be driven less frequently than legitimate vehicles used for lawful, everyday purposes) and can and should be criticised for that.
HHJ Davies found that the mere suspicion that my client’s vehicle might have been cloned did not in the unfolding circumstances of the encounter amount to objectively reasonable grounds for a suspicion that Mo’s car might have contained prohibited articles as defined in Section 1(7) of the Police And Criminal Evidence Act 1984 (PACE), and for which the Police, at least retrospectively, claimed they had been searching for – “an offensive weapon or an article made or adapted for use in the course of or in connection with an offence…”
And this, of course, is exactly as it should be. The Police should not be allowed to take away our liberty – even for 10 minutes – or invade our privacy – even if the trespass committed is to a car glovebox or boot rather than our bedroom or office – without a reasonable suspicion of a specific crime and certainly not on a mere whim or hunch, or even a glance taken the wrong way – borne out of an Officer’s arrogance and self-satisfaction in his own power.
- Also remember how often in any Police encounter, the member of the public is handcuffed almost automatically or by default – a mentality of apply the cuffs first; think about what power we have to do so later, which is without lawful justification.
Here, the Officers of Thames Valley Police claimed reliance upon Section 3 of the Criminal Law Act 1967 – “A person may use such force as is reasonable in the circumstances in the prevention of crime…” – which the Judge dismissed on the basis that it was wholly unclear to him what crime the use of force was intended to prevent, and that this resort to the ‘general power’ conferred by Section 3 was nothing more than an “attempt to seek out a legal power” in circumstances where none existed, because there was no actual apprehension of any specific offence.
The Police also sought to rely upon a purported power under the Common Law to use force in the ‘detection of crime’, but the Judge dismissed their suggestion that the Police have any more right to manhandle people under the common law than the common citizen does, and referenced the classic judgment of Robert Goff LJ in Collins v Wilcock [1984] 3 All ER 374 –
“If a Police Officer restrains a man, for example by gripping his arm or his shoulder, then his action will also be unlawful, unless he is lawfully exercising his power of arrest. A Police Officer has no power to require a man to answer him…accepting the lawful exercise of his power of arrest, the lawfulness of a Police Officer’s conduct is judged by the same criteria as are applied to the conduct of any ordinary citizen of this Country.”
In other words: Unless there is some specific power being justifiably used, any use of force going beyond normal contact to attract attention amounts to an assault.
At the end of the day, the law outranks us all – but Police Officers do not. It is unfortunate that the hierarchical nature of policing and its tribal pride all too often spill over into precisely these forms of civil rights abuse.
As my client’s barrister, Una Morris of Garden Court Chambers, quite correctly put it at the conclusion of this case – suing the Police for violation of fundamental constitutional rights is about money, but it is also, crucially, about public vindication; and in this case, Mo has won both.
Watch Crimebodge’s video here.
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