Unlawfully arrested for failing to allow bailiffs into your home?

An Englishman’s home is his castle goes the old saying, enshrined in law by the judgment of Lord Camden (who probably did live in a castle) in the 1765 case of Entick v Carrington: 

Every invasion of private property, be it ever so minute, is a trespass. No man can set foot upon my ground without my licence, but he is liable to an action though the damage be nothing.

Of course, there was an important qualification to this, in the words of Lord Camden –  “Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good” – or in other words, the right of legitimate agents of the State, principally bailiffs and police officers to enter private property in a number of situations which are carefully limited and controlled by the law.

What rights do bailiffs have to enter your home ?

The starting point for Bailiffs (whose correct legal description following the Tribunals, Courts and Enforcement Act 2007 is “Enforcement Agent” – quite a mouthful of a title replaced a historic but well understood term; I will use the two terms interchangeably in this blog) is that they have a right to peaceful entry of premises only i.e. they cannot force their way in, although they could open and go through an unlocked door.  At the same time there is no obligation on you as the occupier of the premises to let the Bailiff in.

What a Bailiff cannot do (except in certain circumstances which are specified below) is break open a door or window, use a locksmith to pick a lock, or to force their way past someone at a door (the classic bailiff manoeuvre being to try to put their foot in the doorway to prevent the door being closed).

A Bailiff will only have a right to force entry to your home on a first visit if they are there to collect unpaid Magistrates’ Court fines.

Even then –

  1.  They are only allowed to use reasonable force  i.e. a locksmith who will unlock the door – not a battering ram!
  2. They cannot force their way past you if you are blocking the door (Paragraph 24 (2) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 expressly states that “Power to use force does not include power to use force against persons”)
  3. They can only enter through a door, not a window.

On a first visit in respect of enforcement of any of other types of debt however, the Bailiff is simply not allowed to use any force at all, eg –

  • Tax arrears
  • Credit card/catalogue debts
  • Parking fines
  • Money owed to Utility Companies (e.g. water, energy or telecoms).

I talk about a ‘first visit’ because if you do allow the Bailiffs into your home and they make an inventory of your belongings and/or you enter into a “Controlled Goods Agreement” (i.e. they agree not to remove your belongings provided you comply with a repayment plan to discharge your debt) then on their return visit the Bailiffs would be able to use reasonable force to gain re-entry to your property, notwithstanding what kind of debt was being recovered.

Visits by Bailiffs are obviously in their nature very stressful and tense affairs, often exacerbated by aggressive actions and behaviour from the Bailiffs, some of whom don’t know the limitations on their powers of entry and others of whom are prepared to abuse those powers in order to ‘bully’ debtors into giving them what they want.

Often, one or both sides to the dispute – the debtor and the Bailiff/Enforcement Agent will call the Police if matters become heated or a ‘stand-off’ occurs.

It is important to understand that the role of the Police is not to automatically side with the Bailiffs. The Police in attending any given situation should have as their priority preventing a Breach of the Peace, but if none is occurring, nor any other crime being committed, it is not their business to get involved.  They are not supposed to function as ‘cavalry’ coming in to back up the Bailiffs and to help them get their job done. As explained above, there are many situations where the Bailiffs may be enforcing a valid warrant for a valid debt but nonetheless still do not have the right to come into your home unless you let them.  Neither they nor the Police have the power to compel you in that situation to open your door and let the Bailiffs in.

It is open to the Bailiff to go back to the Court to seek permission from a Judge to use reasonable force to gain entry if this is denied to them, but as stated above on a first visit there are only a very limited number of situations in which they can resort to force without further permission from the Court.

On the other hand, if a Bailiff is operating within his legitimate powers and a debtor or other occupier of the premises obstructs them from carrying out their job then that can amount to a criminal offence in accordance with Paragraph 68 of Schedule 12 of the Tribunals Court and Enforcement Act 2007 (which codifies the law in regards to the powers of Enforcement Agents in England and Wales, as referred to above).

The question of course, as to whether the Bailiffs are acting within the boundaries of the law, and therefore whether your ‘obstruction’ of them is unlawful or not is the key question – a question often, in my experience, incorrectly answered by Police Officers who have attended at the scene under the mistaken apprehension that they are there as the Bailiffs’ ‘big brothers’.

And it is a question which was very much at the heart of a case I recently concluded on behalf of my client Harry Bush (name changed).

Unlawfully arrested for refusing entry to Bailiffs

Mr Bush instructed me to bring a  claim for compensation against Sussex Police as a result of the following incident.

On the evening of the 25 July 2015 my client made an emergency call to Sussex Police to report that Bailiffs were attempting to unlawfully enter his home address in Eastbourne in order to execute a High Court Order (Writ of Control).  It is understood that at about the same time one of the Bailiffs, a certified Enforcement Agent, Mr Neckett also contacted the Police requesting their assistance to enforce the Writ of Control.

The Writ of Control in question related to a debt owed by Mr. Bush to South East Water – and hence, it will be noted, was one of those types of debt in relation to which Bailiffs/Enforcement Agents do not have an automatic right to force entry to a person’s premises.

Furthermore, Mr. Bush had on the 1 July 2015 agreed a 30 day suspension of any enforcement action against him with the Bailiff Company.

Notwithstanding the fact that he had been given this ‘period of grace’ in which to arrange payment, and which should have took him up until the 31 July, two Bailiffs attended at his premises on the 25 July, only one of whom – Mr. Neckett was a certified Enforcement Agent.

My client explained to Mr. Neckett and his colleague that it had been agreed that enforcement action would be suspended against him until at least the 31 July, but not withstanding this Mr. Neckett insisted on being allowed into his premises. Hence the telephone call from my client to Sussex Police.

As Mr. Bush subsequently attempted to exercise his right to close his front door to the Bailiffs, Mr. Neckett’s assistant Mr. Ball wedged his foot across the threshold, thereby preventing closure of the door.

This use of force by one of the Bailiffs to prevent the door being closed was doubly unlawful, as explained above, in relation to the nature of the debt which the Bailiffs were seeking to enforce. They had neither the right to use force against the door, nor any person present (in this case Mr Bush, who was trying to close the door). The Bailiffs should not have done it.  Mr. Bush was entirely within his rights to close the door to them and not to allow them on the premises if he chose not to.

Nevertheless (though probably unsurprisingly) when four Officers from Sussex Police then attended at the scene, they immediately took the side of the Bailiffs.

When the Officers arrived, Mr. Bush was still standing in the doorway, only being prevented from closing the door by Mr. Ball’s foot.  As explained above, the Bailiff did not in fact have a legal foot to stand on (shall we say) but the Police chose to overlook this. I would suspect this is because of the Police Officers’ ignorance of the law surrounding the rights of Enforcement Agents and (probably of equal importance) their natural inclination to side with the Bailiffs against the debtor.

My client explained to the Police Officers that the Writ was supposed to be on hold for 30 days, but was ignored.

Furthermore, and in any event, my client  asserted the right that he knew he could refuse entry to the Bailiff if he chose to do so. His conversation with the Police officers about this was recorded on one of the officer’s body cam, and throughout the conversation Mr Bush comes across as calm and entirely reasonable; he does not shout or behave in any way aggressively. He simply asserts the law which governs Bailiffs and which he fully understood – but which sadly, no one else present apparently did.

This resulted in a bizarre exchange in which one of the Police officers accepted that the Bailiffs had no right to force their way in – but then asserted that if Mr Bush did not let them in, he would be arrested.

Indeed, one of the officers  then stated that he was arresting Mr. Bush for obstructing an Enforcement Agent (contrary to paragraph 68 of Schedule 12 of the Tribunals Court and Enforcement Act 2007).

The relevant provision states –

A person is guilty of an offence if he intentionally instructs a person lawfully acting as an Enforcement Agent.

Here of course, either overlooked or disregarded by the Police Officers, was the fact that the Enforcement Agents were not acting lawfully because they had attempted to use force to enter the premises, by way of placing a foot in the door. Furthermore, at the moment Mr Bush was arrested, the Bailiffs were standing outside the property, with no right to enter, and he could not therefore have obstructed them.

Sadly, the Bailiffs had overstepped their powers in using force to keep the door open, and now the Police Officers were overstepping their own powers in arresting Mr. Bush without an actual offence having been committed.

On a side note – but one which is not unimportant – the arresting officer handcuffed my client as soon as he arrested him despite no physical resistance being offered. All force including handcuffs must be proportionate to the situation, and Mr Bush’s calm and reasonable demeanour in no way justified tying his hands behind his back.

Whilst in handcuffs, Mr Bush tried again to make the arresting officer understand the law asserting “He [the Bailiff] doesn’t have the right to enter my house without me letting him in”. To this the arresting officer  again agreed that the Bailiff’s warrant doesn’t give an automatic right to enter Mr Bush’s house without his permission, which begs the following question as asked by my client “Then why did you let them in?” (With the doorway now clear because Mr Bush had been handcuffed and taken into the living room by the Police, the Bailiffs had come into the house). The officer’s reply (which you almost couldn’t make up) was “Because you’re obstructing them from doing their job”!

In other words- the officer was agreeing that the Bailiffs had no right to enter without permission, but then asserting that if  permission was refused, a criminal offence would be committed – which of course is exactly the same as saying the Bailiffs did have a right to enter without permission. With respect, it should have been blindingly obvious to the officer that what he was saying made no sense, something the officer perhaps reflected on when he then asked Mr Bush to stop asking him questions.

The arresting officer’s female colleague then offered her own interpretation of the law, telling Mr Bush the following –

“If they [the Bailiffs] can’t get in – they call us [see what I mean about Police Officers thinking they’re there as ‘reinforcements’ for the Bailiffs?] – we act to prevent a Breach of the Peace [at no point was Mr Bush ever arrested for Breach of the Peace] – and if you obstruct them we have legislation which entitles us to arrest you.”

Quite a jumble of misunderstood sections of the law, to which I would like to echo Mr Bush’s reply at this point to the officer –

“I’m really, really sorry but you’re wrong”.

My client was taken from his home in handcuffs to Eastbourne Police Station and there processed, including having to provide his fingerprints and a DNA sample.

He was held in a locked cell, interviewed under caution and not released until 2.35am the following morning after over 6 hours in Police detention.

Initially Mr. Bush was released on Police Bail, but on 2 September 2015 he was notified by the Police that they would not be proceeding with any charges against him.

Quite rightly upset by what had been done to him, my client submitted a formal complaint against the Officers who had dealt with his arrest, a complaint which he lodged on the very day he was released from custody.  The complaint outcome was that management action was taken against each of the Officers who had attended the scene.

Furthermore,  Mr. Bush pursued a complaint against the Bailiff Company,   who after investigation confirmed that his account should have been recorded as suspended for a period of 30 days from 1 July, but had in fact been suspended for unknown reasons for a period of 7 days only, and he was offered a written apology from the company in this regard.

In my opinion, however, the key point on which this case turned was not the failure of the Bailiff’s company to properly record the agreement they had entered into with Mr. Bush, but the failure of the Bailiffs to comply with the law, i.e. their unlawful use of force and the subsequent failure of the Police Officers to understand the illegality of the Bailiffs’ behaviour. The prevailing confusion which was evident amongst the Officers at the scene of the arrest as to what rights the Bailiffs had, and what conduct by the homeowner amounted to a criminal offence, was also apparent during the wider Police investigation in the weeks following Mr Bush’s arrest – the investigating officer  having to resort to an internet search, excerpting quotes from public advice websites, to find out what powers of entry Enforcement Agents had! It is really quite shocking that Police officers apparently routinely arrest people for ‘offences’ committed in relation to a law which they apparently haven’t been given the training to properly understand. Personally, I don’t think we should be conducting law enforcement by ‘Google’ search.

The Police Officer investigating Mr. Bush’s case, increasingly concerned that in fact no crime had been committed, eventually reached the following conclusion which is recorded in an Investigation Log entry dated 8 August 2015 –

Internet research has highlighted a common theme/issue when the EO’s put a foot over the threshold. This then enters the arena of ‘forced entry’ and an EO is not entitled to force entry to residential premises (they can however if dealing with a commercial property).  Rai and Rai v Birmingham City Council 1993 held that a boot in the door was illegal.  Essentially this act of putting a foot in the door is known as a ‘threshold manoeuvre’ and since 2008 this is not a recognised/lawful technique.

As I have stated above, the ‘foot in the door’ manoeuvre is also illegal contrary to Para 24(2), Schedule 12, of the Tribunals, Courts and Enforcement Act 2007.

The Investigating Officer also appears to have, albeit somewhat belatedly, taken into account the fact that on the evidence available, the force was only coming in one direction i.e. from the Bailiffs trying to force their way into the property, and the only ‘threat’ that my client could have been said to have made was his ‘threat’ to call the Police.  Other than this, his refusal to grant the Bailiffs peaceable entry onto the property, and his argumentative but not threatening stance in regards to what he honestly believed to be a ‘suspended’ Enforcement Writ, could hardly be said to constitute obstruction of the Enforcement Agent’s lawful powers. Hence the decision not to prosecute my client, which was very welcome, but had sadly been preceded by all the unnecessary stress, time and expense of his arrest and imprisonment at the Police Station beforehand.

On the basis of the above I brought a claim for compensation for false imprisonment and assault (principally in regards to the unnecessary application of handcuffs to Mr. Bush, and the psychological effect which his incarceration had had upon him) in response to which Sussex Police accepted that they had unlawfully arrested Mr. Bush and that the placing of handcuffs upon him amounted to an assault.

After I had commissioned medical evidence on behalf of my client I was eventually able to negotiate a settlement for him in the sum of £9,000 plus legal costs.

If you feel you have been unlawfully arrested during a dispute with Bailiffs then please contact me for advice.  As you can see, it is not only the Bailiffs themselves but often the Police Officers called upon to keep the peace who do not know or fully understand the law in this area, leading to the heavy-handed treatment and unlawful arrest of people that simply try to stand up for their civil rights.

When is it too late to claim against the police? (Part 2)

In my last post, I explained that there are strict time limits in which an individual can bring a claim.

I explained that of relevance to Police claims, the limitation period for claims for false imprisonment, assault and/or battery, trespass, malicious prosecution and/or misfeasance in public office is 6 years, or 3 years if personal injury is claimed (unless the Claimant is a child or a patient being treated under the Mental Health Act 1983).

Although the general limitation of 6 years is set in stone, if the Claimant pursues a claim for personal injury, section 33 of Limitation Act 1980 allows for an extension of the three-year time limit in circumstances where the court considers it equitable, having regard to the degree to which the Claimant is or would be prejudiced and the degree to which the Defendant would be prejudiced. In determining whether to disapply the limitation period, the court must have regard to all of the circumstances of the case and in particular to the length of and reasons for the delay, the extent to which the evidence adduced or likely to be adduced is or is likely to be less cogent, the conduct of the Defendant after the cause of action arose, including the extent to which the Defendant responded to requests reasonably made by the Claimant for information or disclosure relevant to the cause of action, the duration of any disability of the Claimant arising after the date of the accrual of the cause of action, the extent to which the Claimant acted promptly and reasonably once he knew that the act or omission of the Defendant might be capable of giving rise to a cause of action and the steps taken by the Claimant to obtain medical, legal or other expert advice and the nature of any advice received. In summary, we might call this a ‘common sense’ get- out clause, designed to operate in the interest of fairness.

Limitation operates as a defence to proceedings, not an absolute bar.  Therefore, if the Defendant failed to plead a limitation defence, limitation would not be an issue in the proceedings between the Claimant and the Defendant.  However, as I’ve pointed out elsewhere in my blog, Police Defence Lawyers will usually take any point available to them so rest assured, if there’s an issue to raise, the Police will raise it.

A case in point is that of my client Charles Quichaud. Back in August 2009, Charles, then aged 19 and a French national, came to visit his brother who was then living and working in London.

Charles stayed for 3 weeks, hanging out with his brother and sightseeing in the city. On the day before he was due to return home, Charles met up with some friends.  They gathered in the park at Hoxton Square where they chatted and relaxed on the grass and benches for a few hours. There were no public toilets nearby, so Charles and his friends would discretely use the bushes to urinate. Unfortunately, Charles was spotted by two passing police officers. The Officers approached him. He was afraid and fled to a nearby bar where PC Caulfield followed him for a short time. He managed to evade the officer but when he later returned to the park, the officers were waiting. Fearing the worst, he began running to the park exit. PC Caulfield chased him down a dead end, forced him to the ground, and rained kicks and blows to his face and head. Charles did not fight back and tried to protect himself in the foetal position.

The attacking police officer broke Charles’ nose in the assault, left him with cuts around his right eye, and bruises to his face and body. The officer was uninjured.

Charles was handcuffed, but not formally arrested, and taken by ambulance to University College Hospital, where doctors diagnosed the fracture, stitched and glued his eye injury, and dressed his wounds.

The following day Charles went to Shoreditch Police Station where he was issued with a Fixed Penalty Notice for breaching Section 5 of the Public Order Act (1986).

While waiting at the Station, Charles says that he overheard a Sergeant advise the officer who assaulted him to “just cover your arse”. The arresting officer then completed an Evidence and Actions Book with a false account of the incident, which was not date stamped as required under standard procedure.

PC Caulfield’s female colleague was accused of writing a false account in which she claimed that a group of women ‘complained about the male who was urinating’.

Charles’ brother paid the Fixed Penalty Notice on his behalf, leaving Charles with a criminal record.

Charles returned home to France where he had an operation to repair the fracture on his nose. Unfortunately, the surgery was only partially successful in that Charles’ nose remained deviated to the left causing difficulties breathing. He was also left with facial scars and understandable low mood as a result of both the incident and his altered appearance.

A concerned member of the public reported the incident to the IPCC who took the unusual step of handling the investigation themselves. The IPCC investigators were unimpressed  with the officers’ accounts and found that both officers had a case to answer for gross misconduct. First however, the IPCC passed the case to the CPS who decided to prosecute PC Caulfield for assault occasioning actual bodily harm. PC Caulfield pleaded not guilty, claiming that he acted in self defence. The case proceeded to trial in June 2011 at which time the jury failed to reach a verdict. PC Caulfield then faced a re-trial in November 2011 at which he was acquitted. Misconduct proceedings were then brought against PC Caulfield and at the subsequent tribunal hearing held in February 2013, PC Caulfield was sacked for using “unnecessary, disproportionate and unreasonable” force when arresting Charles and recording a “false, misleading and inaccurate” account of the incident in his notebook. PC Caulfield’s female colleague was issued with a written warning.

Throughout this saga, Charles cooperated with the IPCC, the CPS and the Metropolitan Police.

Charles was advised by the IPCC caseworker to pursue a claim for compensation.  Charles initially consulted the Criminal Defence Solicitors who had advised him at the Police Station the day after his arrest. They had an ‘Actions against the Police’ Department and referred the case. By this time, Charles was back in London and working as a waiter. Although he was on a low income, his wage varied because of tips. His solicitors advised that he apply for Legal Aid but he soon found that both they and the Legal Aid Agency put unnecessary obstacles in his path when in reality, they should have just got on with his case. In October 2013, 14 months after the 3 year limitation period had expired, Charles contacted me following an internet search which had led him to my blog; he was impressed with my experience and proactive approach to claims like his.

On the basis of his instructions, I was satisfied that he had a claim for assault and battery, false imprisonment and misfeasance in public office including a claim for personal injury caused thereby and that prospects were good.  But although his claims for false imprisonment and misfeasance in public office were still in time (6 years), his claim for personal injury (3 years) was not. In fact, he was nearly 1 ½ years out of time.

In this situation, the best course of action is to issue immediately and so, within a few days of instruction, I issued protective court proceedings on behalf of Charles.

At this time, I had the IPCC investigation report and a series of online news reports about his case only. This was enough to identify the key issues and draft and submit a letter of claim.

The Metropolitan Police adopted their standard litigation tactics;

First, they ignored their obligations to respond to the claim within the protocol period set by the Civil Procedure Rules. In the circumstances, I was obliged to force the issue and serve court proceedings.

Second, they denied liability. They filed an Acknowledgement of Service and confirmed that they intended to defend “all of this claim”. They followed this with their “Defence”, a bare denial of liability of each head of claim save this;

The Claimant’s claim for assault causing personal injury is subject to a 3 year limitation period pursuant to section 11 of the Limitation Act 1980.  The limitation period in respect of the assault claim expired on the 27 August 2012.  The Claim Form in this action was issued on the 1 November 2013, approximately 14 months out of time.  Accordingly, the Claimant’s claim for assault and personal injury should be struck out on limitation grounds”.

In the absence of settlement, a Court would have to make a determination as to whether to disapply the limitation period in respect of the claim for personal injuries.

I was convinced that the court would exercise its discretion pursuant to Section 33 of the Limitation Act 1980 for the following reasons;

  1. The length of delay was 14 months. Charles was a naive young man and a French national.  He had lodged a complaint himself, and he had fully cooperated with the Defendant, the IPCC and CPS in their investigations and the prosecution and misconduct proceedings.
  1. The Defendant had not been significantly prejudiced by the delay, particularly given that the incident had been the subject of an extensive investigation by the IPCC who had submitted a report in April 2010 and all evidence had been preserved.
  1. There was no reason to believe that the evidence available was likely to be less cogent.
  1. The evidence relevant to the assault/battery claim would be very substantially the same evidence to be heard in the claim for false imprisonment and misfeasance. In the circumstances, there would be no detriment in permitting the claim for assault/battery to proceed: the case would proceed to trial anyway given that the other torts under which the Claimant claimed, were governed by a 6 year limitation period.
  1. The issues in the proposed claim for assault/battery involved alleged abuse of power by a public authority. Such issues were of legitimate public concern as highlighted by the second criminal trial and the Misconduct hearing.
  1. Applying the decision of  Smith LJ in Cain v Francis, it would  undoubtedly have been “fair and just in all the circumstances” to allow the claim to proceed to be defended on the merits.

Notwithstanding their denial of liability, the Metropolitan Police quickly made it clear (and understandably so) that this was a case that they wanted to settle albeit on a without prejudice basis.  Following extensive negotiations, I am pleased to report that Charles’ claim settled for a substantial award of damages. However had settlement not been achieved, I am satisfied that the court would have agreed to disapply the limitation defence in respect of the personal injury claim.

Another case in which the Police raised a Limitation defence against one of my clients, was that of Hayley Cunningham v the British Transport Police – a case about which I have previously blogged here.

As I explained in that blog, Hayley was subjected to considerable mental stress and pressure as a result of her unlawful incarceration and the prosecution which was wrongly brought against her and which went all the way to Trial at the Magistrates Court before being dismissed. The effect which this had upon a hard working Mum and dedicated educational professional, with absolutely no previous experience of the custodial and criminal justice system can well be imagined.

Suffering from Post Traumatic Stress Disorder, Hayley was simply unable to contemplate dealing with the claim for a long stretch of time, and therefore did not give me instructions to commence County Court proceedings against the British Transport Police until after the 3 year limitation period for her injury claim had expired. The lawyers acting for BTP sought to take advantage of this (of course) by arguing that Hayley’s claim for physical and psychological injuries was ‘time barred’. I very strongly felt that this was an unjust and cynical move on their part given that it was the emotional impact of the wrongful arrest and prosecution, coupled with BTP’s biased internal investigation and rejection of her (legitimate) complaint, which had left Hayley in this state.

As Baroness Hale observed in the case of A v Hoare [2008] 1 A.C 844 (paragraph 60) the Court must in cases such as this seek to prevent “injustice to a Claimant who may be deprived of his claim…as a result of the very injuries which gave rise to it”.

Another good reason for overturning the limitation bar, as highlighted in the case of Cain v Francis [2008] EWCA Civ 1451 by Smith LJ (at paragraph 74), and certainly applicable to Hayley’s case (as well as that of Charles Quichard) was that “the Defendant knew that a claim was to be made against him and also the opportunities he has had to investigate the claim and collect evidence”.

In both Hayley Cunningham and Charles Quichard’s cases, the respective Defendants – BTP and the Met – had available to them contemporaneous statements and all the other documentary evidence (including CCTV footage in Hayley’s case) accumulated as a result of the criminal prosecution and/or lengthy internal investigation processes. Neither claim came ‘out of the blue’; in neither case was crucial evidence likely to have been lost or distorted by the passage of time.

Accordingly, on receipt of the Defence to Hayley’s claim I promptly issued an application to Court for permission to proceed with her personal injury claim, pursuant to Section 33 of the Limitation Act. My arguments clearly persuaded the Police, as (despite going on to fight Hayley’s overall claim all the way to a fiercely contested Trial) they conceded my application and (quite rightly) dropped the ‘Limitation’ aspect of their defence prior to the Court hearing taking place.

The lesson to take from this is that whilst it is very important to seek legal advice as soon as possible after you have suffered a wrong-doing at the hands of the Police, all is not lost if you have in fact exceeded the 3 year time limit, particularly if there are good reasons for your delay in bringing a claim and/or evidence that the Police Force as an organisation is aware of the circumstances of the wrong-doing against you and has investigated and gathered evidence in relation to it.

The 3 year personal injury limitation date is potentially a very serious obstacle to a claim – but with the right advice and representation, it can be overcome.

 

When is it too late to claim against the police? (Part 1)

The law of England and Wales (specifically The Limitation Act 1980) imposes various time limits in which an individual can bring a claim. Once the limitation period has passed, the Defendant can argue that any subsequent claim should be struck out.

The rationale behind the imposition of time limits is to ensure justice is  properly and promptly served; that it would be contrary to public policy if an individual or organisation is perpetually exposed to the threat of litigation for a wrongful act. The theory has it, that with the passage of time, memories fade, evidence can be lost, witnesses are difficult to trace and it is unfair to ‘ambush’ a proposed Defendant with a claim many years, or even decades, after the wrong allegedly occurred.  Most people would agree to the ‘common sense’ basis of this approach; that it is right to require Claimants to ‘get on’ with their claims within a reasonable time frame, and if not, to draw a line under their right to claim, so that everybody has clarity and can ‘move on’ with their lives.

Of relevance to Police claims, the limitation period for claims for false imprisonment, assault and/or battery, trespass, malicious prosecution and/or misfeasance in public office is 6 years, or 3 years if personal injury is claimed (unless the Claimant is a child or a patient being treated under the Mental Health Act 1983).

I am often contacted by clients who have been wronged by the Police sometime in the past but who have for a variety of reasons not yet taken any action.

Irrespective of the facts or merits of the case, the first question I must ask myself therefore  is, is the claim in time?

In late October 2016, Mr B contacted me having read my regular internet blog.  He had been arrested nearly 6 years earlier and wanted to bring a civil claim against the Police.   The fact of his arrest still rankled him and as a man of hitherto exemplary character he was concerned that his personal data was still retained by the Police.

On 7 October 2010,  Mr B had been asked to give a young woman a lift.  He barely knew the woman having only met her on one previous occasion.  As far as Mr B was concerned, the journey was uneventful.

Then a month later on the 4 November 2010, Mr B  was at home when two Police Officers of the Metropolitan Police attended and requested admittance.

Mr B was told that  the officers had attended to discuss information regarding the woman.  Mr B feared that the Officers were about to deliver unfortunate news about her well- being, however  Mr B was then told he was under arrest on the basis that the woman had reported to Police that in return for free lifts, Mr B  had tried to extract sexual services from her.

Mr B was searched, manhandled and then escorted to his local Police Station where his detention was authorised.  The Custody Record states that Mr B  had been arrested for breaching Section 5 of the Public Order Act.

Under Section 5 of the Public Order Act,

 (1) A person is guilty of an offence if he—

(a) uses threatening [or abusive] words or behaviour, or disorderly behaviour, or

(2) An offence under this section may be committed in a public or a private place.

A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1000).

It is self evident that Section 5 will be used in cases which amount to less serious incidents of anti-social behaviour.

The circumstances of Mr B’s arrest were said to be that “an allegation [had been] made by female who stated that on 7 October 2010, (Mr B) gave her a lift in his car as a minicab.  At the end of the journey (Mr B)  is alleged to have said that instead of payment “You can give me a wank”.  This caused alarm and distress to the victim”.

The reason to arrest was said to be “to allow the prompt and effective investigation of the offence or of the conduct of the detained person”.

The reason for detention was said to be to “obtain evidence by questioning” and the grounds for detention were said to be “so the DP can be interviewed on tape regarding the allegation”.   Mr B was searched (again) and then obliged to provide a fingerprint and DNA sample before being escorted to a cell and later interviewed.

After over 7 hours in custody,  Mr B was released on conditional bail (that he not contact the woman directly or indirectly) and to re-attend on 22 November 2010, while further enquiries were carried out.

On the 15 November 2010,  Mr B was contacted by the investigating officer and advised that he would face no further action.

Mr B’s first reaction to the news was sheer relief.  Although Mr B  disputed the allegation, he recognised that it was his word against the woman’s and that the Police had a duty to investigate alleged crimes and that investigation could include arrest.  Mr B however felt wronged and he therefore  set about investigating the criteria for a lawful arrest.

Following review, Mr B was of a mind that he had an arguable case against the Met for false imprisonment on the basis that he shouldn’t have been arrested but instead dealt with by voluntary interview.

Sadly, at about this time Mr B took ill and he did not feel fit enough to pursue a case until  he contacted me nearly 6 years later.

Given the date of arrest, I knew that limitation was about to expire.  Mr B had been arrested on 4 November 2010.  Limitation would therefore expire on 4 November 2016.  His claim was therefore in time; but only just.  But I also had to be satisfied that there was merit in his case.  This necessitated  an initial assessment as to prospects.  Although I was satisfied that the Police would easily establish that they had reasonable suspicion to arrest, I struggled to see how they would be able to prove that objectively, it was necessary to arrest Mr B.

According to the Custody Record, which Mr B had applied for and kept, the Police said that the necessity to arrest Mr B was to allow the prompt and effective investigation of the offence or the conduct of the detained person.  The offence had occurred about 1 month before.  My client did not know the woman’s name or where she lived.  The allegation, whilst unpleasant, was not of an extremely serious nature.  Mr B was easily identifiable and traced. He was compliant and co- operative when approached by the Police. On that basis, why was formal arrest necessary?  To my mind, it simply wasn’t and the arresting Officer had failed to consider if the necessary objectives could have been met by less intrusive means, i.e. voluntary interview.

Following instruction, I therefore immediately issued Court proceedings.  Relevant papers were sent to the Court on 28 October 2016, received by the Court on 31 October 2016 and then issued on the 8 November 2016, so that proceedings were brought in time. (Although the issue date was 8 November, which was after the 6th anniversary of the arrest on 4 November, the relevant date for the purposes of the Limitation Act is the date on which the papers are received by the Court for issue – in this case, 31 October. This is to allow for the fact that Court backlogs often mean that it is weeks after a Claimant attempts to commence proceedings that the Court staff are able to get around to officially ‘opening’ the case).

Having issued Court proceedings, Mr B had 4 months to serve those proceedings.  That gave me sufficient time to finalise my investigations and draft and submit a formal letter of claim.

As is ‘par for the course’, following their own internal investigations, the Metropolitan Police denied liability.

Notwithstanding the denial, I was of the opinion that Mr B had reasonable prospects of successfully establishing that his arrest had been unlawful and therefore with Mr B’s authority, I served Court proceedings upon the Met.

Mr B realised that by serving Court proceedings, he was exposing himself to the risk of a substantial costs order should the claim fail (indeed the Metropolitan Police subsequently advised that they would likely incur costs of around £15,000.00)

The Met filed a Defence and, as is their standard practice, liability was robustly denied.  The case was transferred to Central London County Court.

Mr B  had been arrested and detained for only a few hours.  Notwithstanding their denial, the Met Police subsequently offered to settle his claim for £1,250.00.  Mr B accepted. In truth, his claim wasn’t worth much in monetary terms. But financial compensation was not of significance to Mr B.  What was far more important was vindication and a sense of justice restored.

The fact of settlement will now greatly assist Mr B in his efforts to have his personal details and data deleted from Police Record Systems.

Mr B had approached me in the nick of time. In another 2 weeks he would have been too late to bring a claim. Furthermore Mr B was able to rely upon my expertise and judgment. Many firms have a strict code which prevents them from taking on cases where limitation will expire within  the next 6 – 12 months which means that perfectly meritorious claims are rejected and not pursued. I however always adopt a flexible approach, and assess each individual case on its own merits, no matter how close it is to the limitation ‘cut off point’.

Indeed, I have, when appropriate, taken on and won  cases which have actually passed the 3 year limitation period for incidents of wrongful arrest or assault occasioning physical (or mental) injury.  There is discretion in the law for such cases to be allowed to proceed if there are good reasons for the delay and I will write about these, and other exceptions to the Limitation Act, in my next blog.

To conclude this blog, however, I will leave you with the following kind words that Mr B wrote to me –

“Although small beer for you perhaps, for me the positive settlement of this case draws a line under an unhappy episode and brings a sense of closure. Your initial judgment has been proved correct and I cannot recommend too highly the service I have received from you and your team”.

Attrition warfare

Attrition warfare is a military strategy consisting of belligerent attempts to win a war by wearing down the enemy to the point of collapse through continuous losses in personnel and material. The war will usually be won by the side with greatest resources.

Unfortunately attrition warfare is often employed by Police forces when presented with a claim for damages. To compound matters, such a strategy is often, albeit inadvertently, aided and abetted by an underfunded County Court system which suffers from significant administrative delays. A claim that I have just settled against the Metropolitan Police exemplifies the strategy and delays that ordinary Claimants can expect to face.

I acted on behalf of Mr Dali who is a Project Manager in the Construction Industry.  On the afternoon of the 20 December 2012, plain clothed Police Officers attended at Mr Dali’s brother’s home address in North London.  Both Mr Dali and his brother were of exemplary character and had had no previous encounters with the Police.

At the time, Mr Dali’s brother was at work and no-one else was present at the premises.

Using an enforcer (‘the Rabbit’), one officer forced entry to the external porch door, shattering the pane of glass within the door.

At this point, Mr Dali’s niece had been driving past the house and observed a group of men trying to force entry and so contacted my client, her uncle, to advise as to what was happening.

Mr Dali’s niece collected my client from his home address which is close by and drove him to the house.  My client had a spare set of keys to the house and brought them with him.  En route, Mr Dali telephoned 999 to seek emergency assistance, of course unaware that the perpetrators were in fact Police Officers themselves.

Upon arrival at the premises, my client saw that the external door had been forced in and entry gained to the front porch.

Mr Dali ended his 999 call having been advised that a response unit would be sent.  He then spoke to a man standing outside and asked what was going on.

My client was asked who he was. My client advised that he was the brother of the owner of the premises, confirmed his personal details and that he had keys to the premises.  By this stage, Mr Dali had formed the impression that the men were Police Officers.  My client was asked to hand over the keys.  My client asked for proof that the men were Police Officers which was eventually provided.

My client asked as to why the Police were in attendance and he was advised that they had a Search Warrant. He asked to see it, during which time another of his brothers arrived on the scene.

The officers asked around for the Warrant which was eventually produced and shown to my client.  At this point, my client was directed to a senior officer, DS C who was said to be in charge.  My client was asked a series of questions including who he was, what was his relationship to the Occupier, whether his brother lived alone, whether he had any tenants, etc.

Whilst my client was speaking to DS C, his brother called and spoke to DS C. Whilst DS C was talking to the home owner, my client became aware that other officers were agitating to use the enforcer again so as to force the interior door of the premises to gain access.

My client stepped forward towards the premises (but again not into the porch) to advise the other officers that the officer in charge was speaking to the occupier and that further damage was not necessary.

My client then turned to face DS C and as he did so he then heard the sound of the enforcer being used and turned to see the front interior door opening having been forced.

My client stepped further forward (but not into the porch) and said that such action was uncalled for.  DS C approached having terminated his conversation with the occupier.  My client remonstrated with him as regards the conduct of his officers.  Other family members who had attended began to record events on a mobile phone.

On this recording, my client can be heard saying, “Got the keys, you didn’t allow me to use the keys, you smashed the door in”.  An officer can be heard making references to a Warrant, whereupon the premises alarm activates.

The recording further shows the following; facing the mobile phone and standing next to DS C, my client states, “I had the key to the door ……  this is the guy that I spoke to.  I had the key.  I’ve got the keys here to the house and what he said was, let me have a chat with him.  In the meantime, his Police Officers got aggressive…….”.

At this stage, DS C attempted to snatch the mobile phone and a scuffle broke out.  A male officer can be heard saying “I’ve had enough ……………..”  and the footage ends.

My client was then taken hold of by two officers and handcuffed to the rear.

DS C returned the mobile phone whereupon filming recommences.

My client is filmed saying that the officers had been “aggressive” and that he had “Just been arrested for no reason”.  My client is then searched.  At no point was my client advised that he was under arrest or why.

My client was subsequently transported to a local Police Station.  According to the Custody Record, his detention was authorised for “Obstructing Police”.

The circumstances of arrest were given as, “person detained deliberately obstructed officers who were attempting to carry out a search under a warrant.  He was warned of his actions but persisted in preventing the officers completing their search.”

Some 4 hours later, Mr Dali was interviewed during which he gave a full account.  Following review, it was decided to bail Mr. Dali for further investigation.  He was obliged to return to the Police Station 7 weeks later.

Upon re-attendance at the Police Station, Mr. Dali was charged with “Wilfully obstructing a constable in the execution of his duty” and bailed to attend his local Magistrates’ Court.  At his first appearance, he pleaded not guilty and the case was adjourned for trial.

Only a few days before the scheduled trial, the proceedings were formally discontinued by the Crown Prosecution Service, on the basis (quite correctly) that there was insufficient evidence to provide a realistic prospect of a conviction.

I was subsequently instructed by Mr Dali.  I identified that he had prospective claims for false imprisonment, assault and battery, trespass to land, trespass to goods/conversion, malicious prosecution and/or misfeasance in public office.

As is common, the Metropolitan Police in response to Mr. Dali’s civil claim adopted their preferred strategy of attrition warfare.

The employed strategy consists of a variety of tactics:

Don’t comply with the protocol

At the commencement of a claim, both parties are obliged to comply with the Civil Procedure Rules and in particular, the Pre Action Protocol.

The protocols outline the steps that parties should take to seek information  from, and to provide information to, each other prior to commencing Court proceedings.  The purpose of the protocols is to encourage early exchange of relevant information and early settlement without the need for litigation.

There is no specific protocol for Actions Against the Police but most practitioners adopt the Personal Injury Protocol.

The protocol usually commences when a letter of claim is sent. This will contain a summary of the facts, stating why the Defendant is liable and the nature and extent of the loss claimed.

In response, the Defendant is expected to acknowledge the letter of claim within 21 days and then within the next 3 months, respond and confirm if liability is admitted or denied.  If the Defendant denies liability, their version of events should be supplied and they should disclose documents in their possession material to the claim.

In Mr Dali’s case (after I had taken full instructions and gathered what documentation I could), a letter of claim was sent.  Notwithstanding the protocol, the Defendant failed to acknowledge the letter of claim within 21 days despite the letter having been received by the Met’s Legal Department. After several prompts, we finally received a written acknowledgement 2 months later in which the Defendant advised that they expected (per the Personal Injury protocol) to respond within 3 months.

Needless to say, the Defendant failed to confirm its liability position and/or provide disclosure within that time period.

Pre-issue a Defendant cannot be forced to confirm its liability position.  It can be forced to provide relevant (but not necessarily all) disclosure by an application to Court for Pre Action Disclosure.  No doubt mindful of that and following my threat to issue such an application, the Defendant provided some disclosure 6 months after the letter of claim was sent and 1 month after the Defendant said it would respond.  The Defendant did not, despite a number of reminders ever confirm its liability stance until after proceedings were issued. The net effect of these tactics is to keep the Claimant in the dark and make the expensive process of a  Court claim his only recourse (other than just abandoning the claim).  It is wholly contrary to the ‘cards on the table’ spirit of the Pre-Action Protocol.

Upon issue of Court proceedings deny liability

In the absence of any admission of liability or realistic offer of settlement, I was forced to issue court proceedings on behalf of Mr Dali and in response, the Defendant instructed Solicitors who filed a robust Defence, putting forward a very different factual account and denying liability. This denial was maintained to the very end of the case.

Take advantage of their greater financial resources

At an early stage of the proceedings, the parties are obliged to file a schedule of their incurred and predicted costs. Both parties anticipated that if this case proceeded to trial, the estimated length of hearing would be 7 days.

The general principle as regards costs in litigation is that the loser pays the winner’s costs. The Met Police asserted that it had a “strong defence” to this claim. Had it fought the case all the way to trial, the Defendant advised the Court that its total legal costs would be just under £32,000.

So if the Police continued to dispute liability and the case proceeded to trial and had my client lost at trial, he would have to pay the Defendant £32,000.

I was acting on behalf of my client by no win no fee agreement.  Although such an agreement covers my costs, it does not protect my client from adverse costs (i.e. the Defendant’s costs if he lost).  Further, my client had no insurance.

My client owns his own house and has some savings.  Had he lost, his savings and possibly his home were therefore at risk.

This threat to my client exposes the usual asymmetrical relationship between the parties; despite ever tighter pressures on public finances, the Police are much better resourced than a  Claimant. There is a significant disparity between a Police Force who can draw upon significant public funds to frustrate and defeat a claim and a Claimant, usually of modest means who will struggle to meet his own legal costs if he can’t find a Solicitor prepared to act by no win no fee agreement or be willing to expose himself to the possibility of substantial adverse costs should he discontinue mid-claim or lose at trial.

A Claimant is exposed in Court proceedings to potentially catastrophic personal economic consequences; the Police, whether intentionally or individually, simply aren’t.

Take advantage of the Court’s delay

Once the parties have filed a questionnaire about how they think the case should proceed, the court is expected to list the case for a Costs and Case Management hearing.

Upon filing questionnaires, Mr Dali had to wait nearly 6 months for the case to be listed. Half a year!

In reality certain steps could be taken to progress the case whilst the parties waited for the court to actively consider the case and set down a trial timetable.

But such delay is music to the Defendant’s ears. The longer the case drags on, the more fed up your average Claimant will become, and more amenable to a lower settlement or so despondent at the delays and frustrations of the process, that he/she will simply give up so as to move on with their life.  For that reason, the Met refused to engage in activities that could progress the case claiming that no action should be taken until directed by the court (which is simply untrue).

Put forward a trickle of low ball offers of settlement

Notwithstanding the Defendant’s initial failure to either admit or deny liability until court proceedings were issued and the Defendant’s robust denial of liability thereafter, the Defendant put forward a trickle of low ball offers, starting with £2,000.  A year later, the Defendant offered £3,500,  stated to be their “final offer”.

Mr Dali had been arrested and detained for 10 hours. Whilst detained, his home had apparently been searched.  Upon release, he was advised that his mobile phone would be retained as evidence.  He was ultimately prosecuted over a 5 month period. Shortly before trial, he was advised that the CPS had discontinued proceedings. Subject to establishing liability, Mr Dali was entitled to substantial damages.

Following the issue of court proceedings and notwithstanding that the Defendant had a “strong defence”, the Defendant made further offers of settlement, first £8,000, then 4 months later £9,100.  On my advice, these offers were rejected as were subsequent offers of £15,000 5 months later and £20,000 8 months later. Such offers were made pursuant to Part 36 of the CPR.  Part 36 offers are a powerful weapon in a Defendant’s Solicitors’ armoury.  If a Claimant rejects an offer and then does not beat that offer at trial, the court will impose severe cost penalties on the Claimant such that if for example Mr Dali had rejected this last offer of £20,000 but at trial, won and only recovered for example £17,500, he would almost certainly have forfeited most if not all of the damages awarded such that he would have achieved only a ‘pyrrhic victory’.

The court expects negotiation to be a two-way street and mindful of the risks of litigation and the ordeal of a 7 day trial at Central London County Court Mr Dali authorised me to put forward an offer on his behalf to settle his claim for £28,000. Belatedly (what else), the Defendant ultimately accepted my client’s offer just 1 month before the trial window opened. In addition, an Inspector of the Met’s Civil Actions Investigation Unit wrote to my client to apologise.

Faced with such tactics, only the strongest willed Claimants supported by the very best Solicitors will continue to fight for justice & for everything this entails. I believe that police forces continue to employ such a strategy quite deliberately because by doing so, they put off (or indeed ‘buy off’ cheaply) sufficient numbers of claims presented by weak and experienced solicitors, for the strategy in their eyes to be successful. What they fail to appreciate is that they harm themselves in the process causing yet more damage to  their reputation as public servants and the confidence that society has in them.

Furthermore, such tactics will not work, and indeed will ‘backfire’ ultimately costing them far more financially when they are up against a solicitor who understands what their game is and how to beat it as I am proud to say the clients who I’ve represented will be able to tell you.

How I helped a client claim compensation after a postal summons error

I have previously blogged about the continuing decline in the number of arrests carried out by the Police in England and Wales and the reasons for this, particularly  the shift in Police culture away from arrest now, investigate later to properly and actively considering alternatives to arrest.

This decline was recently reported by the national press.  Here’s the Daily Mail headlines:

I personally welcome the shift in Police culture away from ‘automatic’ arrest, especially for low level crimes where the suspect is of good character and the offence supported by the evidence of only the alleged victim, having represented too many people who should never have been arrested because there was simply no objective justification for their arrest as opposed to prosecution.

But if a person is not to be arrested and then charged in person,  and instead they are going to be ‘charged remotely’ by delivery of a postal summons at a later date following a voluntary interview, then it is essential that the investigating officer properly records the suspect’s current address and ensures that any postal summons is sent to that address.  Failure to comply with this elementary requirement could have serious consequences as my client, Mr O unfortunately discovered.

On 24 June 2016, Mr O was interviewed by Merseyside Police on a voluntary basis in respect of an allegation that he had committed a Section 20 Assault.  At this time, Mr O tendered his then home address.  Following interview, Mr O was advised that the investigating officer would be in touch.  Several weeks later, Mr O contacted the Police for an update and was advised that the case had been referred to the CPS for review and it could e weeks before a decision was made.

On 23 September 2016, Mr O was the subject of a routine stop check.  He provided his personal details and was advised that there was an outstanding no bail warrant for his arrest in respect of his failure to attend Court on 16 September 2016.

Mr O advised that he had no knowledge of any hearing on 16 September 2016 and/or the said warrant having not received any notification from the police or  notwithstanding his representations, Mr O was arrested on the basis of the no bail warrant.  He was transported to his local Police Station where he was kept in overnight to appear before the Magistrates’ Court.

Mr O eventually appeared before the Magistrates whereupon the Court ordered further enquiries to be made.  Mr O was finally released at approximately 12.30h.

It subsequently transpired that following his interview in June, Mr O was summonsed to attend Court on 16 September 2016.  Unfortunately, an incorrect address was endorsed on the postal summons.  The investigating officer gave the Court Mr O’s old home address that had been extracted from Police records. In fact, Mr O had not lived at this address for 10 years.

In all, Mr O was detained between 15.25 on 23 September to 12.30 on 24 September 2016, a period of over 21 hours.

Mr O contacted me to pursue a claim.  I had to advise Mr O that any claim for the tort of False Imprisonment would fail;  Mr O had failed to attend Court, the Court had issued a warrant and Merseyside Police had then arrested Mr O on the basis of that warrant. Although the Police had in effect instigated the wrongful arrest by reason of failing to use Mr O’s correct address, the warrant was still technically lawful and therefore they had a cast iron defence on the basis of Section 6 of the Constables Protection Act 1750, which provides (in somewhat archaic language) immunity from any claims arising out of arrest or search under warrant –

“No action shall be brought against any constable… or other officer, or against any person or persons acting by his order and in his aid, for any thing done in obedience to any warrant under the hand or seal of any justice of the peace…without making the justice or justices who signed or sealed the said warrant defendant or defendants,[and] that on producing and proving such warrant at the trial of such action the jury shall give their verdict for the defendant or defendants, notwithstanding any defect of jurisdiction in such justice or justices…” 

Clearly, this seemed to leave Mr O in a grossly unfair situation, given that the warrant which gave the Police protection was only issued because of Police administrative error. I therefore considered an alternative basis for Mr O’s claim; one possibility was a claim in the tort of Malicious Process which requires 4 elements –

  1. A warrant was issued
  2. Without reasonable and probable cause
  3. The person or persons responsible for procuring the warrant acted maliciously
  4. The person subject to the warrant suffered damage thereby

In this case, 3 of the 4 elements of a successful claim were made out, but crucially not the one requiring “malice” or deliberate ill- intention; this was a serious error by the Police officer handling the case, but there was absolutely no reason to think he had done it deliberately. It was a mistake, albeit one with serious consequences.

That left the options of pursuing the Police on the grounds of the tort of Negligence or, at the opposite end of the spectrum from the archaic Constables Protection Act of 1750, the much more recent provisions of the Human Rights Act or Data Protection Act 1998. As I have explained in other blog posts, the Police enjoy a general immunity from suit in negligence claims connected with their investigative duties, but here I was of the opinion that a Court would find that the Police owed a duty of care to Mr O and that they had breached that duty. The majority of cases in which it has been ruled that the Police cannot be sued for negligence relate to acts of omission rather than commission i.e where the Police have failed to do something rather than taking active steps which initiated the damage (as I firmly believed they had here, by sending the summons to the wrong address in the first place).

An example of this type of claim in practice is the case of Hough v Chief Constable of Staffordshire Constabulary (2001) Times 14 February, CA in which a False Imprisonment claim brought in negligence against the Police failed. Officers had arrested the Claimant in that case because of an incorrect entry on the Police National Computer system, but the officer actually carrying out the arrest had not made that entry and had no reason to believe it was not valid. The Judge in the case, Simon Brown LJ, suggested that the claim should have been brought against the Police either in negligence (on the basis of the mistake of the Police employee inputting the data) or, better yet, under the DPA (for mishandling of the Claimant’s personal data leading to loss and damage).  In my own opinion (although apparently overlooked by the Judge) a claim could also have been brought  under Article 5 of the Human Rights Act.

On behalf of Mr O I was able to successfully argue that his arrest was attributable to the negligence of the arresting officer in that he had failed to update Mr O’s address on the Police system. Following negotiation, I am pleased to report that Mr O’s claim settled by Merseyside Police for £5,300 together with his legal costs.

I was very pleased to be able to use my expertise in this type of case to help Mr O successfully negotiate the ‘no man’s land’ filled with all sorts of legal obstacles that case law and legislation throw in the path of victims of this particular miscarriage of justice. The tightening of Police procedures around the issuing of postal summons, and ever more attention to the correct processing of sensitive and crucial personal data, will hopefully minimise the number of future victims.

Why don’t the police say sorry?

Why is it harder to get the Police to say sorry and admit they were wrong, even just to show some compassion and consideration towards a person who has suffered – or claims to have suffered- at the hands of a Police officer – than it is to get them to pay tens of thousands of pounds in compensatory damages ? This to me is one of the most obvious symptoms of the unhealthy ‘us v them’ tribal mentality prevalent in many Forces which leads to a multitude of abuses and cover-ups, and which seriously undermines public trust and confidence in the Police.

Imagine if you had a case of a fireman who had been deliberately – or even negligently – causing arson. Would you expect the Fire Service as a matter of course to presume that the victims of the fire were in the wrong, and do their damnedest to either stop a complaint being brought or ‘whitewash’ the result? I think we would all be outraged; but this is actually what is happening as a matter of routine in Police Forces up and down the country.

I have recently concluded a hard-fought case against West Yorkshire Police which contains a disturbing example of this endemic problem.

My client Oluwatoyin Binta Shinnel Azeez has kindly given her permission to tell her story. On 22 April 2014 she was at her home in Bradford with her young children (aged between 1 – 13), when officers from West Yorkshire Police came to her property, demanding to speak to Ms Azeez’s lodger (the teenage son of a family friend), who was living with the family at the time. Previous visits to Ms Azeez’s home by the Police to check on the lodger, who was at the time under a curfew order, had passed entirely peacefully, but on this occasion the lead officer, PC H, forced his way into the premises as soon as Ms Azeez answered the door to him, pushing her to the floor in the process.

Ms Azeez is a law-abiding person of good character with no previous convictions. She had willingly answered the door to PC H, and the violence which he then displayed, in bursting past her into the house, was completely unjustified.

Ms Azeez, in a state of considerable distress, protested to PC H that he had no right to enter her house in such a manner. She was at the time, dressed only in a loose-fitting kaftan, having been showering when the Police first knocked at the door. She now asked PC H to leave, whereupon he pushed her in the chest, making contact with her breast, and again knocked her to the floor. Now even more outraged and distressed, Ms Azeez got to her feet and demanded that PC H leave; in response he viciously assaulted her, grabbing her by the neck and pushing her against the wall. All of this was unfolding in front of Ms Azeez’s young children, and the impact upon them can easily be imagined.

Injuries to Ms Azeez shown here.

The Azeez children pleaded with PC H to release their mother, to no avail. As Ms Azeez began to choke and feel lightheaded, PC H then escalated the assault by spraying CS incapacitant gas into her face at close range, and without warning. The gas spread throughout the close confines of the house, and also began to affect Ms Azeez’s young children, one of whom was a one- year old infant.

Injuries caused by a police officer.

PC H then dragged Ms Azeez outside and onto the pavement, causing her to fall and strike her head on the ground. Forcing Ms Azeez to keep her head down by kneeling on her back, PC H then handcuffed her arms behind her back and left her lying in the street. To the pain and degredation she was already suffering, was the added humiliation that she was wearing only loose- fitting clothing and felt exposed to the public view of her neighbourhood.

Assault injuries caused by a police officer.

 

PC H then returned and renewed his assault upon Ms Azeez, pulling her to her feet by her handcuffs and then pushing her back down, causing her to bang her head against her garden wall, and vomit. PC H then further tormented Ms Azeez by informing her that not only was she to be taken into Police custody (for no specified reason whatsoever) but that also Social Services would be called and her children taken away from her.

Ms Azeez was then transported in the cage-section of a Police van to Trafalgar House Police Station, still without any explanation as to what she was being arrested for, or even that she technically was under arrest.

At the Police station PC H falsely asserted that Ms Azeez had assaulted him, but after listening to his account, the Custody Sergeant refused to authorise detention of Ms Azeez on the grounds that PC H had not been acting in the course of his duty, as he had in fact had no right to enter Ms Azeez’s premises uninvited.

Ms Azeez was then told she was free to go, but was offered no explanation or apology.  Given her obvious injuries, the Custody Sergeant advised that she should go to the Hospital, and implied that she would be given a lift.  She was directed to wait in the public waiting area.  She did so for over an hour, during which time she was completely ignored by  Police staff – offered not even so much as a cup of tea- and becoming increasingly worried about her children, who the Police had informed her had been ‘given’ into the care of another Mum at her children’s school whom Ms Azeez did not know well, and who had never looked after the children before. This had been done by the Police without any consultation with my client.  Eventually, finding herself being completely ignored, Ms Azeez had no choice but to just leave the Police Station and walk home in the paper custody slippers she had been given (which soon disintegrated), injured and without any money or a phone. After walking some distance, she had to accept a lift from a stranger to get back home, in itself far from an ideal situation; fortunately she was soon reunited with her children, but all of the family were deeply traumatised by what had happened, and the children as well as Ms Azeez were still suffering from the effects of the CS gas spray which PC H had discharged in their home.

Ms Azeez understandably brought an official complaint against the Police, but found the officers handling her complaint throughout to be generally unhelpful, rude and dismissive.

The first action she took was on the morning after the incident, after she and her children had been seen at their local hospital. She telephoned the Police to lodge a complaint but was rebuffed by being told that the Police apparently had “no trace” of the incident! Disappointed but undeterred, Ms Azeez then attended Trafalgar House Police Station in person, after dropping her eldest child at school, to make the complaint in person.

Her subsequent interactions with the desk officer constitute, in my view, a ‘text book’ example of the way the Police try to frustrate and deter complaints against them. Firstly the officer, who displayed a sceptical attitude to Ms Azeez throughout, tried to deter her by telling her that it was not easy to bring a complaint and that it could only be done via the internet (not true). He repeatedly tried to dissuade her from pursuing the complaint, before reluctantly agreeing to take her details (name and address) and go and “check” on the incident. Ms Azeez was now left waiting for over 2.5 hours – with her younger children and baby-  before the desk officer informed her (and only after she approached him, not vice versa) that he hadn’t been able to find any trace of the previous evening’s raid on her home, or her arrest, and accordingly, had decided to do nothing – not that he had done her even the courtesy of explaining this to her!

Ms Azeez was absolutely “gutted” by this outcome, but after being encouraged by friends, was strong enough of character to return to the station the next day to insist that the Police listen to her and open a formal investigation into her complaint. Knowing the hostile attitude she was going to receive from them, Ms Azeez had the foresight to bring sandwiches, a flask of tea and blankets in order to ‘camp out’ at the station, with her children,  for as long as it took to get the Police to allow her to bring her complaint. Once again, the first officer she spoke to was dismissive and tried to ‘scare her off’ by saying how lengthy and complicated the complaint process would be. Undeterred, Ms Azeez stood her ground and waited for the 2 hours it took for a Sergeant to finally come and take her statement, during which waiting time she had to feed her infant son and change his nappy. Throughout the process of giving her statement, she found the Sergeant to be negative and critical of her account; he clearly did not approach the process of interviewing her with an open mind, and only made arrangements for her injuries to be photographed when she prompted him.

We may well ask; what state would society be in if the Police displayed this sort of attitude to investigating complaints against members of the public generally, and why do Police officers so often get ‘special treatment’ like this when members of the public complain against them ?

Following an investigation which took over 15 months, it was concluded that although the officer did not have a lawful power of entry into Ms Azeez’s home  he had “an honestly held belief” that he did. Accordingly, PC H did not have a case to answer in misconduct or gross misconduct but would “be given words of advice and appropriate training”.

Ms Azeez felt deeply hurt, not only because of the vicious assault she had suffered at the hands of PC H, but because of the total lack of help or sympathy offered to her by the West Yorkshire Police as a whole, who rather than supporting her as the victim in this matter, seemed to rally behind and protect PC H. She instructed me to represent her as a specialist lawyer in actions against the Police, and I commenced Court proceedings on behalf of Ms Azeez against West Yorkshire Police for assault and battery, false imprisonment, trespass to property and breaches of the Human Rights Act.

Following the institution of Court proceedings and just 2 weeks before trial, West Yorkshire Police agreed at a Joint Settlement Meeting on 29 September 2017 to a settlement of £25,000 in damages, plus Ms Azeez’s legal costs and, perhaps most importantly, and very rarely seen even in successful actions against the Police, a formal apology from the Assistant Chief Constable of West Yorkshire Police which is reprinted below.

I ask you to bear in mind that this apology- as fulsome as it seems- was only extracted from the Police after over 3 years of costly litigation, putting a significant dent in the ‘public purse’ which ultimately must pay for Police misconduct and abuse of power. How much time, expense and heartache could have been saved if the ACC’s letter had been written to my client in September 2014 rather than 2017 ? However, that kind of open and conciliatory approach appears to be utterly alien to the prevalent  Police mentality.

Whilst the settlement terms achieved should go a long way to helping Ms Azeez put her life back together after this highly distressing incident, the memories of which have caused her to have to relocate her family from the Bradford area to London,  I still feel that what happened to Ms Azeez and her family was truly outrageous.

Obviously, the assault perpetrated upon her by an armed officer in front of her young children was absolutely unconscionable, but to me, equally shocking and deplorable was the way in which West Yorkshire Police as an organisation callously turned their backs on Ms Azeez once they determined that they had been wrong to force entry into her home, assault and then  arrest her.  It would have been a simple and straightforward matter at that stage for a senior officer to have offered an apology, some words of kindness and  arrange immediate medical treatment and thereafter a lift home.  Even just an explanation as to what had happened.  As it was Ms Azeez was left completely in the dark both as to the reason for her arrest and the reason for her release. It seems that the Force was only interested in her if they could classify her as a villain; they had no concern for her as a victim – the victim of one of their own officers indeed.  Having been assaulted in her home, effectively abducted, separated from her children and taken across town against her will and without any just cause, she was then to all intents and purposes ‘thrown out’ onto the street to make her own way home.  Further insult to injury was added by the Forces’ usual approach to a complaint against its officers: treating the complainant with contempt.  Eventually they did the right thing, but also because my client had the courage and conviction to pursue a court claim to enforce her rights.

Should it really be this hard, and this rare, for the Police as an institution to be able to say “sorry”?

 

Stop and Search: How the Police Misuse their Powers (Part 5)

One of the things I cannot help but reflect upon as I have been writing this series of articles about Police Misuse of Stop and Search powers, is how most of the victims in these cases have been black.

I have commented at the conclusion of one of my previous blogs on this subject that, given the prevalence of those of my clients who have been subjected to unlawful Stop-Searches by the Police who are from an ethnic minority background, it is hard to avoid a conclusion that having a non-white skin colour, or a non-British accent is, in the heads of certain Police Officers, taken as an indicator of likely criminality.  In this regard, my professional experience is borne out by the statistics that show that in 2015–16 black people were 6 times more likely to be stopped and searched by the Police than white people.

This leads me to what I consider to be one of the most flagrant examples of ‘routine’ racism in day-to-day Policing, a case I have recently concluded on behalf of two clients, a brother and sister of African heritage, in which, despite neither of them being the subject of the initial Police Stop and Search they were the only two people arrested at the scene whilst the white subjects of the Stop and Search were not arrested and were allowed to go free.

On the day in question in January 2013 my clients Ellie (then aged 23) and her brother Mark (then aged 21) were at home in the flat where they lived with their mother in Deptford, London.

Both Ellie and Mark were of Nigerian birth, but had resided lawfully in the UK for a number of years.  Mark was a student and Ellie worked for the NHS.

Both Ellie and Mark were of impeccable character, and prior to the incident in question neither had ever been in trouble with the Police.

Ellie had earlier been out in the company of her Polish boyfriend Peter, and Peter’s friend Tomas (who is also Polish).

Peter had dropped Ellie back at her flat, so she could get changed, and then he and Tomas had gone to look for a parking space for their car.  The intention was then that Peter, Tomas and Ellie would then travel by foot and train to Stratford Market.

However as Ellie left her flat she could see that Peter and Tomas were out of their car and the car was being searched by three men.

The three men searching the car were all white skinned and were wearing plain clothes, but as Ellie got closer she could see that they were wearing badges to identify themselves as Police Officers and they also verbally asserted that they were Police.

The three plain clothes officers finished searching the car and were now body searching Peter and Tomas.  The situation was calm and Peter and Tomas were fully cooperating.  Ellie walked to Peter’s car and put her handbag in the back of the car.

Ellie then asked the plain clothes officers what was going on and one of the officers replied that they were searching Peter and Tomas for drugs.   Ellie replied, “Well they haven’t got any drugs, you’re searching the wrong people”. Ellie did not shout at the officers or try to interfere with the search; she knew that both Peter and Tomas were innocent and presumed the search would soon be over.

A fourth Police Officer, also a white male, now arrived at the scene and started to search Peter again, although Peter had already been searched.

Peter politely queried with this newly arrived officer why the Police hadn’t shown any ID badges and whether they needed a Warrant to search him.

In response, the newly arrived officer told Peter to “Shut the fuck up” and asserted that the Police could do whatever they wanted. The officer then made comments to the effect that drug taking was common in Poland.

Ellie was shocked by what she heard and spoke up saying that the officer should not talk to Peter in that way and that she had been to Poland and it was nothing like what the officer was trying to suggest.

The officer became irate at Ellie’s intervention going as far as to push her in the chest telling her to “Shut the fuck up”.

This officer then opened the boot of the car again (although it had already been searched) and Ellie approached to see what he was doing. The officer then slammed the boot lid shut in an aggressive manner, which caused the boot lid to strike a glancing blow against Ellie’s hand which was resting on the corner of the boot.  Fortunately, Ellie was able to snatch her hand away so it was not trapped in the boot.

Peter then protested to the officer that he should be more careful.

Ellie’s left hand was now hurting where it had been struck by the boot lid. The officer had offered no apology for catching Ellie’s hand and when she now spoke to him angrily asking why he had slammed the lid when her hand was there the officer replied “That’s it, you know what, get into the car.”

The officer then started to push Ellie away from Peter’s car and towards a nearby, unmarked, Police car.  Ellie protested to the officer “What are you doing?”  The officer replied “You’re under arrest” but did not say what she was being arrested for.

The officer then grabbed Ellie’s hand in order to apply a handcuff, and Ellie pulled away from him.   The officer took hold of Ellie and attempted to get her hands behind her back so he could handcuff her, hurting Ellie in the process.

The officer kept repeating to Ellie that she was under arrest but not telling her what she was allegedly being arrested for.

Ellie asserted that she would resist the officer until he told her what it was she was being arrested for.

A number of local residents and passers-by had now heard the commotion and were gathering around.

The officer managed to get a handcuff on one of Ellie’s hands and then dragged her towards the Police car, twisting her handcuffed hand as he did this.

The officer then attempted to push Ellie into the back of the Police car. Ellie was resisting being pushed and kept saying to the officer “Tell me what I’ve done”.

Ellie was attempting to hide her hands in her lap so the officer could not take hold of them.  She was understandably extremely distressed by what was being done to her. The officer had launched an unprovoked assault upon her and was now appearing to attempt to arrest her for the ‘crime’ of having annoyed him.

The officer now seemed to lose his temper completely and said to Ellie “You black bitch can you put your hands so that I can handcuff you, stop resisting, you’re making my job harder”.

Ellie was now screaming at the officer to let her go and in reply the officer said “You bitch, you black bitch, you’re resisting arrest, that’s it, you gotta go, that is it”.

A second Police Officer then came over and helped the officer who was struggling with Ellie to push her face down onto the pavement, causing her to bang her head.

Ellie was now lying on her front on the pavement and one of the officers used his boot on Ellie’s spine to keep her head down whilst they handcuffed her hands together behind her back.

Whilst Ellie was lying on the ground she was able to see that amongst a crowd of bystanders was a young man who was recording what was happening on his mobile phone.  Ellie did not know who this man was.  However Ellie then also saw her younger brother Mark amongst the crowd and called out to him to record what was happening to her, and Mark took out his phone to photograph the incident.

Mark had been getting dressed in his bedroom when he heard a commotion in the road outside and recognised the voice of his sister.

Looking out of his bedroom window Mark had seen his sister being assaulted by the Police Officers and had therefore left the flat and had gone outside to see what was happening.  Mark was naturally concerned for his sister.

He was extremely shocked when he came outside to see Ellie being held down on the ground, handcuffed by the Police Officers.

In response to Ellie’s request that he photograph what was being done to her, Mark did indeed take out his mobile phone and took one photograph of the scene, showing Ellie pinned to the floor by the Police Officers.

There was of course absolutely nothing illegal in him taking a photograph of this very public scene.

Neither now, or at any point, did Mark attempt to physically intervene in his sister’s arrest in any way.

Having taken the photograph, Mark did not attempt to approach his sister or any of the Police Officers.

However, one of the Police Officers then approached Mark and demanded that he hand over his mobile phone as the officer wanted to see what he had photographed or videoed.  Mark refused.

The officer then said to Mark words to the effect that if he deleted the picture, then he would not be arrested.

Mark was in shock and asked the officer why he was saying this to him.  He told the officer he would not delete the picture as he wanted evidence of what had been done to his sister.

The Police Officer then said to Mark that he was  under arrest on the grounds of either obstructing or perverting the course of justice.  He took hold of Mark’s arms and handcuffed him to the front.

Mark was in a state of distress and confusion and  could not believe what was happening.

Both Ellie and Mark were now placed in separate Police vehicles (Mark in a Police car, Ellie in a van which had been called to the scene) and were driven away to Lewisham Police Station.

Peter and Tomas meanwhile were released by the officers at the scene and allowed to go about their business.  The search upon them and their car had, of course, been completely negative.

In my opinion, even if the language used by the officer who was arresting Ellie had not been overtly so, the racist motivation for the arrest of Ellie and her brother would appear quite explicit in circumstances where neither of them were the target of the Stop-Search and the white men who were the subject of that search had been allowed to go free.

On arrival at the Police Station, Ellie was taken before the Custody Sergeant and was informed that she had been arrested for fighting an officer. This was the first time this had been said to her.

Meanwhile, Mark was brought before the Custody Sergeant and one of the officers accompanying him falsely alleged that Mark had been arrested for attempting to obstruct the Police from carrying out a Stop and Search.  It was alleged that he had been told to get back by the Police several times  before being arrested, which is simply not true.  Mark could not believe what he was hearing.

Ellie and Mark were then locked in the Police cells for a period of over 13 hours before eventually being released.  This was an extremely distressing experience for both of them, who had never undergone anything like this before.

Both of my clients were ultimately, and perhaps unsurprisingly, released without any charge whatsoever being made against them.

A review of the evidence prior to release by a Police Inspector in Ellie’s case is recorded in the Custody Record as follows –

There is nothing in these notes that identify this person stopping or preventing the officers carrying out the search.

Likewise, the same Inspector was obviously not impressed or persuaded by the evidence of the arresting officers against Mark as recorded in his Custody Record is the following comment by the Inspector shortly prior to release –

There is sufficient doubt over the arrest of the sister for this matter of obstructing that arrest to be NFA’d  as insufficient evidence to obtain a realistic prospect of conviction in that if the sister’s arrest was without grounds then the officers were not acting in the execution of their duty and cannot therefore be obstructed.

This whole story, I’m sure most people would agree, contains quite a shocking series of events. Without meaning in any way to be flippant, rather indeed this is something we should take very seriously, it does appear to me that Ellie was arrested for the ‘offence’ of being black and annoying an officer, whilst Mark was arrested for the ‘offence’ of being black and refusing to hand over his phone (which the officer had no lawful power to demand).

One good thing to take away from this case is that the Senior Inspector who conducted the review had concerns about the evidence of the arresting officers and did the right thing in directing that Ellie and Mark be released without charge.

Nevertheless a considerable amount of harm had already been done.  Both brother and sister had been deprived of their liberty for over 13 hours and their trust and confidence in the Police had been deeply shaken.

Ellie in particular suffered both physical and psychological injuries as a result of her arrest and incarceration which took months to resolve.

I pursued a claim against the Metropolitan Police on behalf of both Mark and Ellie seeking damages for assault and false imprisonment.  Disappointingly, given the conclusions which had been reached by the Inspector in the Police Station, but perhaps not surprisingly, given the usual conduct of the Metropolitan Police when faced with civil claims, liability for both of my clients’ claims was initially disputed by the Police and we were forced to commence Court proceedings against them.

In response to those proceedings the Police asserted that the arrest of both Ellie and Mark had been justified and asserted that Ellie had interfered with the search of Peter, and that Mark had attempted to physically intervene in his sister’s arrest. These allegations did not cause me any great concern however, because I knew that both Ellie and Mark were telling the truth.

Ultimately, it appears that the Police Officers who were involved in this case were reluctant to go to Court to tell their lies on oath, as prior to trial the Metropolitan Police approached us with offers of settlement, and the claims of both Ellie and Mark were eventually settled for total damages of £15,000.00.

In response to this Ellie wrote me the following very kind letter –

I don’t know how to thank you and your team enough in helping me and Mark through this whole terrible incident that happened a few years ago.

I was totally worried the situation will remain unsolved and I didn’t know how I would feel by going to court and getting a biased Judge.

I was also left with so much anger as to why it happened to me because I am just a very calm person. 

I am very happy that this is out of the way and I can focus on my future as this issue has really disturbed me for years.

And even speaking to you every time about it made me very emotional and cry but I’m going past it as time goes on because I have never experienced such.

I am glad with the outcome as I thought what they did was very wrong and I know they have done this to so many people who didn’t know the law and was quiet about it.

Of course it would not be possible without your help so I am saying thank you a million.

As I have said before in this blog, Justice is not just about the pounds and pence of the compensation award, but giving people a real feeling of restitution, that the powerful in society can be held to account when they do wrong and the principles of justice and fairness which it is essential that we can all believe in for society to properly function can be upheld and protected by the mechanisms of the law.  This is especially important for any groups in society who are disproportionately targeted by Police abuses, as is clearly the case with illegal stop/searches of people of non-white appearance.