Author: iaingould

This week’s blog post is intended to highlight the crucial importance of “necessity” in any lawful arrest. The vast majority of arrests carried out by the Police are “summary arrests” under Section 24 of the Police and Criminal Evidence Act 1984 (PACE) i.e arrests carried out by the Police under an Officer’s individual authority, and without the authorisation of a Court Warrant.   

For the Police to deprive you of your liberty in the absence of a Warrant, they must not only honestly and reasonably suspect you of a criminal offence (a relatively low bar if another person has made an accusation against you, even if it is false) but also be able to rely upon one of the 10 justifications set out in Section 24, and expounded in Code G of the Police & Criminal Evidence Act, as to why the suspected offence requires your arrest in order to be investigated, arrest being only a means to an end, not an end in itself (it is not an interim punishment, an early incarceration if you like):   

24Arrest without warrant: constables

(4) [The power of summary arrest]… is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.

(5)The reasons are—

(a)to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person’s name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);

(b)correspondingly as regards the person’s address;

(c)to prevent the person in question—

(i)causing physical injury to himself or any other person;

(ii)suffering physical injury;

(iii)causing loss of or damage to property;

(iv)committing an offence against public decency (subject to subsection (6)); or

(v)causing an unlawful obstruction of the highway;

(d)to protect a child or other vulnerable person from the person in question;

(e)to allow the prompt and effective investigation of the offence or of the conduct of the person in question;

(f)to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.

It is important, therefore, that when Police officers default to ‘arrest mode’ without sufficient critical thinking, failing in their duty to consider the necessity question and alternatives to arrest – that they are held to account. Suing the Police in such circumstances may not only bring you compensation and some peace of mind; it may help to ensure that fewer people in the future are subject to unnecessary arrests.

The test for determining whether an arrest was necessary under PACE Section 24 was summarised by the Court of Appeal in Hayes v Chief Constable of Merseyside [2012] 1 WLR 517 [at paragraph 40] as follows: 

“(1) the policeman must honestly believe that arrest is necessary, for one or more identified section 24(5) reasons, and

(2) his decision must be one which, objectively reviewed afterwards according to the information known to him at the time, is held to have been made on reasonable grounds”.

The Court of Appeal then cited with approval a passage in Alexander and others [2009] NIQB 20 [2009] NIQB 20 at paragraph 19: 

“Given the scope of the decision available to a constable contemplating arrest, we do not consider that it is necessary that he interrogate a person as to whether he will attend a police station voluntarily. But he must, in our judgment, at least consider whether having a suspect attend in this way is a practical alternative. The decision whether a particular course is necessary involves, we believe, at least some thought about the different options. In many instances this will require no more than a cursory consideration, but it is difficult to envisage how it could be said that a constable has reasonable grounds for believing it necessary to arrest if he does not make at least some evaluation as to whether voluntary attendance would achieve the objective that he wishes to secure”.

In Commissioner of the Police for the Metropolis v MR [2019] EWHC 888 (QB) [at paragraph 47], the High Court stressed that the “test of necessity” for summary arrest is more than what is simply desirable, convenient or reasonable. It is, quite rightly, a “high bar, introduced for all offences in 2005 to tighten the accountability of police officers”.  

Failing the Test: An Unnecessary Arrest

At all material times, my client Stevie was in an on/off relationship with a woman whom I will identify for the purposes of this blog post as “Samantha”.

Following a report which Samantha made to the Police in mid- January 2022, Stevie became aware that Cambridgeshire Police wanted to speak to him.

Sensibly and proactively, Stevie phoned the investigating Officer, PC Dickinson, and advised that he would voluntarily attend Peterborough Police Station at 10.00am on 8 March 2022 .

By this time, Stevie had been back in his relationship with Samantha for around three to four weeks. Sam advised him that whilst they were broken up she had reported him to the Police for alleged harassment, and this was evidently what they wanted to speak to him about.

The crime report was therefore several months old, and significantly stale by the time my client attended Peterborough Custody Unit as arranged.  To his shock however, matters did not unfold as amicably as he had reasonably anticipated.

PC Dickinson met Stevie in the waiting area and led him into the Custody Unit whereupon, the Officer told Stevie that he was under arrest for Harassment and cautioned him, for allegedly having pestered Samantha with messages and for turning up at her house unanounced.

Stevie was then taken before the Custody Sergeant, PS Hallam.

The reason arrest was ‘necessary’ was said to be for a “prompt and effective investigation – to interview – as thought unlikely person would attend voluntarily.  PACE Code G 2.9 (e)(i)(a). To protect a child or other vulnerable person from the person in question. PACE Code G2.9(d)”

At 10.16, Stevie’s detention was authorised. The grounds for detention were said to be “to secure or preserve evidence, to obtain evidence, to obtain evidence by questioning.” That, of course,  would be the questioning which he had shown his full willingness to participate in by reaching out to the Police in the first place.

Stevie then faced the indignity of being searched and having his possessions seized.

PS Hallam then completed a Risk Assessment of my client, in which he recorded the following observations to the pro forma questions-

Does the detainee appear injured or unwell?                                                                  NO

Does the detainee need First Aid or medical treatment?                                             NO

Does the detainee appear to have taken or be under the influence

of alcohol, drugs or any other substance ?                                                                       NO

Does the detainee have any indications of self harm?                                                 NO

PS Hallam then sought to obtain Stevie’s own answers to the risk- assessment.  In response, and in protest at the way he had in effect been ambushed with an unnecessary arrest, Stevie exercised the ‘right to silence’ which he had just been informed was his post-arrest (“You do not have to say anything…”) and refused to respond.

The form of Police misconduct which Stevie was experiencing – unnecessary arrest – now collided with another form about which I have written before – the draconian misuse of strip search powers, not to ensure a detainee’s safety but to punish them for being perceived as disobedient or disrespectful by the Custody Sergeant (most often in a basic refusal to answer questions). For PS Hallam now threatened Stevie that should he fail to answer the risk-assessment questions, or to provide his name (which of course, the Police already knew) he would be taken to a cell and have his clothing forcibly removed.

Stevie protested that this was uncalled for as he was no risk to anyone, and he would not remove his clothes. Throughout his dealings with PC Dickinson and PS Hallam, Stevie had remained calm and polite. He was in good health, physically and mentally and clearly not a risk to himself and/or others. His reticence at answering the Sergeant’s pro-forma questions was, I would say, perfectly understandable given that he should not have been arrested in the first place.

Unfortunately, this cut no ice with the Custody Sergeant, who carried out his threat. Stevie was escorted to a cell by at least five officers and ordered to strip naked.

An Unnecessary Strip Search

Lest we forget, this was a man suspected of a relatively low-level offence, who had contacted the Police himself and voluntarily attended the station to be interviewed.

Stevie was understandably shocked and upset by this degrading treatment, but did remove his hooded top, belt, trainers and socks and shoes.  This was not enough to satisfy his captors however, and nor would it be if the purpose of the exercise was not to protect Stevie from self-harm (its ostensible justification) but in fact to punish him for disobedience and assert power over him. Perhaps the words of the Police caution should be amended to: “You have the right to remain silent, but if you do, you won’t remain in your clothes.”

Stevie was told to hand over the rest of his clothes, or they would be taken from him by force.

In addition to the five officers in the cell with him, Stevie was by this time aware of other officers gathered in the hallway outside, including a female officer.

Again, Stevie asserted that he was no risk to anyone and ‘locked’ his hands together to try to protect himself from being stripped, whereupon multiple Officers took hold of him and pressure was applied to his thumbs and his arms were forced apart and behind his back.  He was then handcuffed to the rear.

Stevie was then forced face down on the floor of the cell – remember that this was supposedly to ‘safeguard’ him – whereupon an Officer kneeled on his back and his t-shirt and then jeans and pants were forcibly removed.

Throughout this degrading ordeal, Stevie experienced significant pain and discomfort.

Once Stevie was naked, a pair of shorts were dropped on top of him, and the officers vacated the cell. This was later described in the Custody Record as Stevie being “covered with safety clothes to protect his dignity.”

Stevie put on the pants which he found were dirty and too large and kept falling down. He had nothing to wear on his top. He felt humiliated and disgusted, and was experiencing pain in his hands and arms, particularly his right thumb. He requested the attention of a medical professional; once again it was Police ‘safeguarding’ that proved to have been the real threat to one of my clients, and shorthand for an unjustified assault.

Stevie’s ordeal was now about to escalate further, however, as the Police having used one set of powers to humiliate and injure him, would now use another to criminalise him.

An Unnecessary Drug Test

Whilst Stevie waited in his cell for the interview which he had voluntarily presented himself for hours earlier, Temporary Inspector Jackman authorised a drugs test upon him.  His grounds were said to be that – “the detainee has been arrested for stalking and harassment (DA related).  He has a history of drug offences.  I suspect the use of drugs contributed to the commission of the offence.  Drug use can cause paranoia in many cases, stalking behaviour is exasperated by paranoid thoughts towards the victim and relating to the following non-trigger offence(s) Other – not listed – PNC recordable, harassment, PNC recordable.”

For the record, Stevie has no “history of drug offences”.

For the time being, and unaware of this bizarre decision, Stevie was interviewed by PC Dickinson and DS Thind and then returned to his incarceration. The interview lasted only 20 minutes, after which the Custody Record was noted to the effect that the Police were aware that Stevie and Samantha had now reconciled and there had never been any violence or assaults between them.

Approximately three hours after this interview, Stevie was brought out of his cell and obliged to give fingerprints and to be photographed.

It was now that he was informed that an Inspector had authorised the taking of a drug sample from him; morally outraged at this latest insult after all the other mistreatment which had been piled upon him from unnecessary arrest, to strip search and physical injury, Stevie refused to provide a sample. He was, of course, entirely ‘clean’ but this was a point of principle which he wanted to hold on to, an act of resistance against any further shredding of his dignity.

Finally therefore, at 17.34 that day, Stevie was charged with failing to provide a sample for the purpose of ascertaining whether he had a Class A drug in his body.  He was granted police bail to attend Peterborough Magistrates’ Court in April.

And the other offence – the stale report of harassment which Stevie had originally attended in order to address and clear up? He was “refused charge” for that, i.e it was dropped. His property was returned and he was allowed to leave the Police station.

Winning Compensation

Stevie subsequently attended Peterborough Magistrates Court where he proudly pleaded not guilty.

The case was adjourned for Trial.  Then, just weeks before the Trial, Stevie was advised that the Crown Prosecution Service had discontinued the proceedings against him. I can only presume that this was because the prosecutors on reviewing the evidence had strong cause to doubt the bona fides of the Inspector’s decision to ‘drug test’ Stevie and suspected, as I did, that like the strip search it was just another excuse to humiliate a recalcitrant detainee with one of the many uses of power Police have in their bureaucratic arsenal.

He was at last the free and innocent man he should have been within a short time of his voluntary attendance at the Station. Instead, one act of Police abuse of power in the form of an unnecessary arrest had kicked off a catalogue of others, causing Stevie emotional stress and physical injury. Had the Police proceeded with a voluntary interview with Stevie, he might have been out of the Station as early as 10.30am that morning, with the matter cleared up and the Police able to devote their resources to far more serious matters; instead considerable Police energy was spent on, effectively, tormenting Stevie with one act of humiliation after another for over 7 hours, before he was released with the threat of a criminal conviction  hanging over his head for months.

Stevie’s determination to stand his ground against Police abuse of power led him, after his exoneration in the criminal proceedings, to instruct me to bring a civil claim against Cambridgeshire Police, in which I was more than happy to act after analysing the facts of his case.

I am pleased to confirm that after receiving my detailed letter of claim on behalf of Stevie, whilst they did not admit liability, the Police did agree to compensate Stevie in the sum of £15,000 plus his legal costs  – a considerable settlement which speaks for itself.

An absolutely necessary settlement, in fact.

Often one of the first things that clients who have suffered wrongs at the hands of the Police will say to me, is that they are in pursuit of justice for what happened to them, and that it is “not about the money”.

Whilst I absolutely understand and applaud that sentiment, one of the first things that I will say in response is that as far as the civil courts of this country are concerned, it is about the money. Money is what makes the world of civil justice go round. A claim for loss of your liberty, for trespass to your person or to your property will be treated by the County Court or High Court as ultimately an exercise in assessing which party must pay the other damages and/or costs, monetary restitution as assessed within the parameters of the case law which has been set by the judiciary of England & Wales over the decades.

When the ‘right amount of money’ is on the table, I have to advise you to take it, because the law does not, in fact, want people to ‘have their day in Court’ and penalises those who turn down what the Judge deems to have been the right amount of money offered at an earlier stage, by making even a winning Claimant pay the losing Defendant’s legal costs – if at Court the Claimant’s final award of damages is not greater than an earlier settlement offer made by the Defendant.

In some respects, this is exactly as it should be, of course – because the Court cannot turn back the clock and all that can be done in a civil context for injuries, losses and other wrongs committed against a person, no matter how severe, is to award monetary damages which the Claimant can then put towards future financial security, therapy/ rehabilitation and, frankly, the  kind of pleasures and amenities of life that can be bought with money, so as to balance out the previous harm.

To be entirely clear: whilst I fully appreciate the strength of your feeling and understand that your desire for justice and accountability from the Police is not primarily about money, the fact is that we have to operate within the rules of the civil court system which have been set, and with those legal tools which are available to us. The only legal remedy the Court can ultimately provide is financial compensation; the civil courts cannot order criminal charges to be brought against the Police Officers involved, nor make disciplinary findings against them, nor order the Chief Constable to fire them. A judge cannot even order the Police to apologise to you, no matter how heinous the Judge concluded their actions against you were.

So, I have to advise you in terms of money (damages and legal costs) and that is all that I can promise to recover for you using the mechanisms of the Court, if we win.

But that isn’t actually the end of the story, because although those are the tools and rules that we have, there are, as an indirect but nevertheless potent part of the process, other moral goods which can be achieved through bringing a civil claim, which do get us closer to that unquantifiable sense of justice that I know is at the heart of most people’s motivation in this matter.

It’s Not About The Money: The Other Benefits of Bringing a Civil Claim  

1. Acknowledgment: Although no Defendant can be ordered to apologise, it is not unusual for a formal apology to be negotiable as part and parcel of a financial settlement, and precisely because of the money claim which not only gives you a voice the Defendant has to listen to – it also gives the Defendant an incentive to satisfy you emotionally so as to avoid mounting legal costs (its own as well as yours).

2. Understanding: In response to a civil claim, the Defendant has to hand over all relevant pieces of documentary evidence for you and your lawyer to review. This enables you to gain understanding into the motivations of the Police and the reasons why they acted towards you in the way you did. You are, in effect, investigating them, and searching through Police documents – reversing the interrogatory process to which you were probably subject if you were arrested.

3. Publicity: There is no ‘confidentiality clause’ inherent in either a negotiated settlement or a Court judgment. The greater the monetary award made in your favour, the greater publicity your case is likely to attract, if you then go on to share your story in the media. Media scrutiny generated by successful claims against the Police is one of the best ways to make those organisations change for the better and to help ensure that the same thing doesn’t happen to other people in the future. I am proud to play my part in that process through this very blog, in which each week, with the gracious permission of my clients, I am able to highlight Police wrongdoing, reinforce the public’s knowledge of their civil rights and make my clients’ voices heard.

4. Accountability: Police Forces do not have a bottomless pit of money to allow them to constantly ‘buy off’ claims. The public scrutiny generated by a successful claim accompanied by a sizeable financial settlement (including the legal costs of the claim) create external and internal pressure on the Police that can lead to cultural change, the curbing of bad behaviour and unlawful practices and the tightening of Police vetting procedures, so as to reduce the number of rogue officers who are costing the Force ‘an arm and a leg.’

5. Privacy: A successful money claim, which may be accompanied by an admission of liability or Court judgment in your favour, would greatly assist with any subsequent application made to the Criminal Records Office for deletion of the data relating to your wrongful arrest and the (literal and metaphorical) removal of your ‘thumbprint’ from the criminal justice database.

6. Empowerment: A claim for damages is a very different way to access justice than through the criminal courts – in which you are either the Defendant responding to a case brought against you or a witness in a case brought against, say, an abusive Police Officer, but which case is controlled by a third party (the Crown Prosecution Service) rather than by you and your lawyers. Likewise, in the Police misconduct system, even as an active ‘complainant’ you do not have direct access to the levers of the system or the evidential material, and you are often reduced to the role of a ‘bystander’, frozen out of key decisions or kept in the dark about crucial evidence. In a civil claim, however, you are the agent of your own justice: in bringing the claim you are calling the shots and the Defendant must respond to you, explain its actions, hand over all relevant evidence and answer to Court orders and directions. The Defendant must listen to you, whether it wants to or not. Although it can be stressful, the experience of collaborating on a hard-fought case with your lawyer and winning can also be an immensely rewarding and cathartic one in and of itself, bringing a great sense of personal satisfaction and empowerment.

Monetary awards, in terms of damages and costs, are the sinews of our civil law; they make the world of the Courts go round, just as muscles move the body. Without such systems, the body could not function – but now step back and look at the bigger picture. Muscles and money are both just mechanisms in a far greater and less easily defined whole. Whilst one system powers the human body, the other powers democratic justice.

It is not illegal to record your interaction with a Police Officer in a public place on a mobile phone; indeed, as I have pointed out before, the ubiquity of mobile recording devices in modern society is a major reason why Police accountability for wrongdoing is increasing.  

(An important caveat to the above is that I am generally assuming that the interaction you are filming is one which has been initiated either by the officer approaching you or the behaviour of the officer towards a third party in your presence. If you initiate the interaction for the purposes of trying to get a rise out of officers and film their reaction, that is not something which I morally condone and indeed you might be treading a fine line in such behaviour between legality and a public order offence).

Mobile phones can be shields of our civil rights and Little Brother’s eyes upon Big Brother, both at once; new technology to help preserve age-old rights to liberty and integrity of person.

They are the mirrors of the body cameras which Police Officers now themselves ubiquitously wear – but in this case, you crucially control the ‘on’ and ‘off’ buttons!

Plenty of scandalous cases reveal that Officers themselves cannot be trusted to police their own recordings – either not turning their cameras on in the first place, or seeking to delete incriminating footage.

In this context, it is important to highlight people’s rights in the face of what, experience tells me, is an increasing trend of Officers snatching phones and even arresting people who are filming them, their thuggish behaviour given a cynical veneer of legality by manipulation of the law, or a false conflation of powers.

There is nothing honest or legitimate in officers trying to stop people simply filming them. The officers’ motivations are almost always out of a desire to avoid scrutiny, or negate evidence that could impact on their latter ability to control the narrative of an arrest, stop-search or other potentially adverse encounter with the public.

As there is no law to stop the public from filming them in public, Police Officers with ill-intent or too much ego, or sometimes a lack of basic understanding,  try to twist such a power out of a law designed to allow the seizure of evidence of crime – this being Section 19 of the Police & Criminal Evidence Act (PACE).

A classic example of this, is a case in which I currently act. Because it is at an early stage, I will only provide an outline of the key details without identifying either my client or the Force in question; but in a way these generalities are appropriate, because this is the type of ‘play’ which Officers up and down the country are regularly making – or attempting to make.

In June 2023 my client, a law-abiding woman of entirely good character, was at home, when she saw her sister being arrested by the Police in the road outside, following her sister having been involved in a dispute with a neighbour.

My client went outside to investigate and began recording events on her phone,  whilst keeping her distance from the Officers.

Suddenly and without warning, a male Police Officer grabbed my client’s left wrist and left upper arm and said “I’m seizing that phone under Section 19 of PACE, I believe its got evidence of an offence, pass me the phone”.

Shocked, my client resisted this ‘Police mugging’, whereupon the Officer told her that she was “under arrest for resisting arrest”.

Other male and female Officers now ‘piled in’ and my client was forcefully handcuffed to the rear, whilst being forced face-down onto the bonnet of a Police car, and her mobile phone was wrenched from her grip.

A bystander asked if filming in public was not allowed, to which one of the male Officers chillingly replied, “We seize any mobile device that’s being used to record, it’s capturing evidence, an offence”.  My client quite reasonably responded to this by telling the first Officer that she could have sent him the video, pointing out “All you had to do was ask”. 

My client was then escorted to a Police carrier van, where the first Officer asked her if she understood why she had been arrested.  My client told him that she did not at all understand, and again asserted that if the Officer wanted her phone footage, he could have just asked for it.  The Officer threateningly replied “If you’re going to be difficult, I’ll take you to Custody”. 

Unsurprisingly, however (because in reality, no offence had been committed), my client was now advised that she was being de-arrested and her handcuffs were removed. 

However, when my client asked for her phone back, the Officer  who had arrested her replied “It’s ours now” and said that she might get it back in six months.  The Officer showed no compassion or concern at all for the disruption this would cause to my client’s work and personal life.

It was not until the following month, and after my client had proactively raised a number of complaints, that she was ‘allowed’ to come and collect her phone from a local Police Station.

Upon collection of the phone, my client noted that she had over 30 voice messages, one of which was from a local Walk-in-Centre where she had attended for treatment following her being manhandled by the Officers as described above. The message was now several days old. When my client belatedly made contact, she was advised that following a review of an x-ray which had been taken of her wrist and which had initially been thought to be clear, a fracture had in fact been identified and she now needed to go to hospital for further advice.

It will be noted that the Officers in this incident claimed the power to do what they wanted to do to my client’s person and property under Section 19 of PACE; a law which in my opinion is being as badly twisted by bully-boy Officers as are the limbs of those they unlawfully arrest whilst purporting to rely upon it.

Section 19 PACE actually provides as follows-

19 General power of seizure etc.

(1)The powers conferred by subsections (2), (3) and (4) below are exercisable by a constable who is lawfully on any premises.

(2)The constable may seize anything which is on the premises if he has reasonable grounds for believing—

(a)that it has been obtained in consequence of the commission of an offence; and

(b)that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed.

(3)The constable may seize anything which is on the premises if he has reasonable grounds for believing—

(a)that it is evidence in relation to an offence which he is investigating or any other offence; and

(b)that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed.

(4)The constable may require any information which is [stored in any electronic form] and is accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible [or from which it can readily be produced in a visible and legible form] if he has reasonable grounds for believing—

(a)that—

(i)it is evidence in relation to an offence which he is investigating or any other offence; or

(ii)it has been obtained in consequence of the commission of an offence; and

(b)that it is necessary to do so in order to prevent it being concealed, lost, tampered with or destroyed.

Section 19 is in a part of PACE which is specifically designated “Powers of Entry, Search & Seizure” and the proceeding sections are all about Police powers of entry into premises either with or without search warrants, in certain defined circumstances. It is clearly therefore a piece of legislation (drafted in 1983/4 let us not forget) which is designed to allow Officers investigating a crime to gather evidence of the crime, or the presumed proceeds of crime (such as stolen goods) whilst they are searching premises.

“Section 19” therefore does not give Police Officers the power to confiscate mobile phones in order to prevent filming. It was never intended to be used in this way, and Officers purporting to use it in this manner are doing so illegally. This becomes even clearer when the wording which I have highlighted in the legislation, above, is analysed-

• “Exercisable by a Constable who is lawfully on any premises” – Although ‘premises’ is a word which is not necessarily confined in its meaning to ‘indoors’- it can include a place in the open air – that place must be a distinct piece of land in single occupation/ ownership. The middle of the street (where my client’s encounter with the Police took place) can clearly not be defined as “premises.” If you are on a public highway, you are not “on premises” and thus Section 19 is irrelevant and inapplicable.

• Even if the encounter took place “on premises”, the Constable can still only seize “evidence in relation to an offence.” Filming in public is not itself an offence. Filming an officer talking to you is not an offence. Filming an officer searching or arresting somebody else is also not an offence.

• Even if a Constable can clear the above statutory hurdles, and does have legitimate grounds for believing that an offence has been ‘captured’ on your mobile phone, and you and he are currently “on premises” where Section 19 is exercisable, note the crucial caveat – “that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed.” In encounters of this nature, the person recording the Police is doing so precisely in order to preserve a record of what is happening, and it is nonsense to assert that there is an imminent danger of that evidence being destroyed. Indeed, what the Police really want to do through their intervention in this manner is not to preserve existing evidence, but to prevent the accumulation of further evidence – for the first thing they will do is to switch off the phone. They know this, and so do we, and it is a travesty of the law for them to pretend otherwise. Even if the Officer genuinely wanted to see, rather than stop, the recording – then the correct and lawful first port of call is simply to ask the person filming to send the officer a copy of the recording, as indeed my client pointed out to the Police in the incident described above “All you had to do was ask…”

Mobile phones are an intrinsic, even intimate, part of our lives today  – as crucial to the person of the modern day as the wallet, diary, post-box, photo album, computer, and home and work landline phones were to people of the recent past; indeed, the phone is quite literally a device which is all of those things rolled into one!

It is quite correct in my opinion, for teachers to ban mobile phones from the classroom, and confiscate them from school pupils if they find them. What is totally wrong is for Police Officers to treat the world like a classroom they rule over and our personal privacy and property as fair game for the ‘adults’ to control. We are not children, and they are certainly not our teachers.

So for a start, let’s teach them what Section 19 of PACE actually says.

A lot of attention was grabbed recently by Channel 4’s ‘fly on the wall’ documentary series, “To Catch A Copper”, which followed the trials and tribulations of one of our country’s Professional Standards Departments – in this case that of Avon & Somerset Police.

‘Catching a copper’ can be hard enough, given the sclerotic state of many PSD units, but what is even harder is getting the criminal conviction of a serving Police officer at trial in the Magistrates or Crown Court. A report in the Mirror newspaper this month highlighted that 158 Police Officers/ Police Staff were convicted of criminal offences in the 12 months to April 2023, but in my opinion this is really only the tip of the iceberg – as it remains far more difficult than it should be to get the Courts to convict a criminal in uniform, as opposed to one in civilian dress.

A case in point is that of PC Alan Kirkwood of Lincolnshire Police, who just this month walked free from Nottingham Crown Court, despite admitting kicking a defenceless man in the face. To make the situation even worse, the man he kicked was not the man he was attempting to apprehend – but in fact a ‘Good Samaritan’ who had come to PC Kirkwood’s aid, as the officer struggled with two suspected robbers, and who for his effort got a boot in the face and a broken nose.  

PC Kirkwood’s own body worn camera recorded the Officer – apparently mistaking his heroic helper for one of the suspects – training his taser on the man, ordering him to lie down on the ground and then, quite deliberately and apparently vindictively, kicking the shocked but completely compliant man in the face. In his defence, the Officer claimed that the kick was a “distraction strike” designed to protect himself and gain “compliance.”

PC Kirkwood it seems to me, had taken it upon himself to be judge, jury and executioner – issuing with his boot some ‘summary justice’ to the man he thought was a robber; this was a gross distortion and abuse of his duty as a Police Officer, but the real Judge presiding over Kirkwood’s trial for Actual Bodily Harm seemed to want to give the Officer a medal rather than sanction him for this. After the Jury delivered its ‘not guilty’ verdict, Judge James Sampson declared-

“This [prosecution] was never going to not fail and is a decision which proves a failure to understand the instruction of an English jury by asking them to convict a man of exemplary character with 43 years serving in the police or the military acting in good faith and doing his public duty but who made a mistake. It is simply not fair play.”

Thus, do experienced Judges seem to turn into gushing cheerleaders when it comes to Police Defendants, and the attitude of the Judge naturally has a very strong influence upon the Juries hearing these cases of Police violence. This is not at all an unusual outcome: see my blog post about a case in which the Police Officer who drove his car over a man’s head was ruled to have ‘no case to answer’ at Leicester Crown Court in 2019.

Judicial sympathy for Police Officers in these cases is only half of the story, however. Also upsetting the scales of justice, in my opinion, is the attitude of the Crown Prosecution Service (CPS) which often seems ‘torn’ when it makes a decision to prosecute one of its criminal justice system colleagues in this way, resulting in half-hearted or lukewarm prosecutions of the Officer. This can lead to some strange decisions being made: notably, in the case of PC Kirkwood, the man who he assaulted was not called to give evidence, thus depriving the Jury of seeing and hearing the other half of the human story in this case – that of the man of good character who bravely helped a Police officer, only to become the victim of the Officer’s unprovoked attack. In this way, the victim was effectively rendered faceless, and the Jury’s focus and sympathy was naturally concentrated upon the long- serving ‘Copper’ in front of them.

Such attitudes are long- ingrained in our judiciary and amongst Crown prosecutors, and change will take a long time, but the good news is that we have other mechanisms for justice in such cases, principally the ability to sue the Police for assault and battery in the Civil courts of our country. This is what I did on behalf of the victim in the Nottingham case I referred to earlier, at the conclusion of which the Chief Constable and his officer were found to very much have a ‘case to answer’, in terms of significant damages.

Because in the civil compensation claims in which I specialize, you and I are the prosecutors.

The purpose behind the Constables Protection Act of 1750 is one which carries the ring of common-sense down the centuries; that Police Officers should not be liable for enforcing an arrest warrant which has been issued by the Court, in circumstances where they are only acting as agents of a judicial direction, rather than making their own decision. 

However, the Constables of the 18^th century did not also have responsibility for administering that vast databank of personal records known as the Police National Computer (PNC) and nowadays, many times that the Police invoke the “Constables Protection Act” to avoid liability in civil claims they are doing so notwithstanding the fact that it was a Police error involving use of the PNC which caused the warrant to be wrongly issued in the first place.  A Constables Protection “Act” indeed, we might say.

Thus do the Police shamelessly hide behind the archaic Act to avoid liability for their very modern mistake:  but fortunately, there are ways around this, as Gwent Police found out when I pursued a claim against them on behalf of my client Claudia.

In September 2022, Claudia was involved in a road traffic accident, which was attended by Officers of Gwent Police. Those Officers determined that she should be subject to a roadside breath test to establish whether she was in charge of a motor vehicle whilst over the prescribed alcohol limit. Regrettably, she failed that test.

Claudia was then arrested and escorted to hospital to have a blood sample taken for the further investigation of this offence.  After the blood sample was taken, she was de-arrested and allowed to leave.

Upon arrest, a police officer had asked Claudia for her home address, which she provided.  The police officer accordingly used this address in paperwork relating to the driving offence.

Following analysis of Claudia’s blood sample, a Postal Charge and Requisition was sent to her in January 2023. The Postal Charge stated that Claudia was required to attend her local Magistrates Court later that month, and that the court might issue a warrant for her arrest if she were not to attend.

Unfortunately, the summons was sent not to Claudia’s current address, despite her having provided this to the Police, but to her old residential address, which appeared on the PNC and had not been updated.

Furthermore, the member of Police staff who prepared the Postal Charge had failed to identify the discrepancy between the address on the Police National Computer and the correct address which appeared on other electronic systems.

Naturally, Claudia did not attend Court as required and accordingly, the Court issued a warrant for her arrest.  The fact that the Police had, all along, had Claudia’s correct address was evident from the fact that it was to her current address that the Police came to arrest her one evening in February. Claudia received a phone call advising that the Police wanted to speak to her about the road traffic accident, but the officer she spoke to gave no warning of their true purpose in coming to her house, and thus she suffered the shock and shame of being unexpectedly arrested in front of her 14-year-old daughter and her partner.

Claudia was detained in Police custody for over 14 hours before being taken to the Magistrates Court in handcuffs and further detained in the Court cells. On being brought before the Magistrates, Claudia pleaded guilty to the driving offence, as she would have done in response to the Postal Summons, had she received it. She was already on medication owing to a history of anxiety and depression, and this was considerably inflamed by her traumatic experience of Police arrest as a ‘wanted’ person and the long hours she spent in custody. She felt stigmatised by her experience, became socially withdrawn and suffered from over-eating.

When I first presented a claim on Claudia’s behalf, Gwent Police denied liability and as expected, invoked the Constables Protection Act, arguing that they thereby had immunity against any legal suit for false imprisonment (notwithstanding their undeniable moral culpability for the obvious mistake they had committed). The arrest and detention were “at the behest of the court”, despite the admitted ‘human error’ by Police staff. It was further denied that the Police owed Claudia any duty of care in negligence for their error.

Fortunately, there were other avenues of attack in which I was well versed, and I was able to raise a compelling argument that the Police were liable for Claudia’s loss of liberty as a result of their breaching of the Data Protection Act 2018.  Thus, could a defence almost 300 years old be legitimately outflanked by legislation which more accurately reflects the complexities of modern law enforcement.

After I threatened to issue Court proceedings, Gwent Police quickly came to the negotiating table and after initially offering £3,000, ultimately settled Claudia’s claim for £8,000 damages plus legal costs.

‘School-boy’ errors such as using the wrong address should be confined to the classroom, and there is no excuse for them in today’s data-rich modern era, particularly when people’s liberty, privacy, family life and mental health are at stake.

My client’s name has been changed.

This is the second of a two-part blog post by my colleague and fellow solicitor John Hagan. Read part one here.

This week, in the concluding part of my blog post addressing the remedies for Police failure to disclose documentary evidence in civil claims, I will explain how the rules governing ‘Specific Disclosure’ have been brought to bear against a Police Force which failed to conduct a thorough search of its records, apparently so that it could advance a defence based on the absence of sufficient evidence…

Where a party feels that the other has not provided full disclosure of documents after Court proceedings have been commenced, a mechanism exists in the Court rules to compel that disclosure, as set out in Civil Procedure Rule 31.12–

Specific disclosure or inspection

31.12

(1) The court may make an order for specific disclosure or specific inspection.

(2) An order for specific disclosure is an order that a party must do one or more of the following things –

(a) disclose documents or classes of documents specified in the order;

(b) carry out a search to the extent stated in the order;

(c) disclose any documents located as a result of that search.

The most serious breach of disclosure obligations with which I am presently dealing, is one which has been committed by a Police Force in regards to a claim brought by a woman who, whilst she was a suspect under investigation for a fraud offence, was groomed and impregnated by the very Officer who had arrested her. 

As the events in question took place in 2004, the initial Police response to the claim was that they were ‘prejudiced’ in defending it because of the passage of time and hence, they claimed, an inability to determine the proper facts. 

However, although my client’s legal claim was only brought in recent years, the fact is that she did bring a complaint about what had happened almost 20 years ago, and the matter had, at the time, been the subject of an investigation by the Force’s Professional Standards Department.  It being a different era then, although my client’s complaint was upheld, the Officer – who in the present day would probably face a criminal prosecution for misconduct in public office for his sexual exploitation of my vulnerable client – in fact faced no criminal or disciplinary sanction other than a “Don’t do it again, lad” type of formal warning. 

My client’s present claim against the Police for misfeasance in public office is at this stage disputed by them on a number of grounds – including an argument about how many times the Officer had sexual relations with my client (he claimed it was only once) and whether or not he was on duty at the time.

The fact that he is the father of the child she subsequently gave birth to, is not in dispute however – this was confirmed by a DNA test.

Nevertheless, a legal battleground remains to be fought over, and it is therefore crucial that the parties both provide full and frank disclosure of all relevant documents – all the more so because of the passage of time since these events took place.

My client had done her best to assemble as much evidence as she could prior to commencing Court proceedings, through making a Subject Access Request (SAR) under the Data Protection Act to the Police Force in question, and also a Subject Access Request to the Independent Office for Police Conduct (IOPC).

In their Defence to the claim, the Police argued that they were “prejudiced in their ability to establish the facts” because of the passage of time and the fact that they only had “limited documents” about what had occurred. When this case recently reached disclosure stage, the Police produced a List of Documents (i.e a formal statement of all relevant evidence in their possession or control) which only contained four items – limited indeed one might think – but I knew that there was more than met the eye to that list.

The Police had included as a single item in their list the ‘bundle’ of documents which they had earlier provided to the Claimant in response to her Subject Access Request under the Data Protection Act.  However, no attempt was made to separately identify/ itemise those documents or to offer unredacted copies of them.

Documents obtained by people making Applications to institutions under the Data Protection Act, are often significantly redacted because such a request only entitles the person to see information that is specifically about them and references to other people will be heavily edited – effectively rendering the document unusable in Court proceedings because the context of the data about Subject Access Applicant cannot be fully understood, and key evidence about other people involved in the case is hidden behind the redactions.

By way of a practical example of this – included in my client’s Subject Access Request bundle was a copy of the Complaint Reinvestigation Report relating to the material events, which had taken place following an appeal by my client to the IOPC (which in those days was known as the IPCC).  Huge swathes of that report were redacted in the copy that had been provided, although it was self-evident that for the purposes of a Court claim which overlaps entirely with the subject of the complaint (i.e. the Police Officer’s sexual exploitation of my client) the entirety of the report was relevant and not just those sentences which contain my client’s name.  As matters stood, however, the copy of the report provided was predominantly ‘blanked out’ because, of course, its subject was not really my client – it was the conduct of the Police Officer she had complained about.  For the Police to impose such redactions on the document in response to Subject Access Request was one thing – but it was completely unacceptable in the context of the duty of open disclosure in civil Court proceedings.

The Chief Constable and his legal team appeared to have given no thought to the difference between the disclosure obligation which was owed as a party to civil proceedings and the much more limited duty which was owed to data subjects who pursue a Subject Access Request.

Yet further, it was quite clear from the documents which had been provided to my client (albeit, also in redacted form) by the IOPC in response to her separate SAR to that organisation, that not only had the Police provided incomplete civil disclosure in the form of their seeking to hide behind the heavily redacted versions of the documents released by their own SAR team (as described above), they had also failed to include in either their List of Documents or their SAR bundle, numerous other documents of relevance, the existence of which was revealed by the IOPC response.

These documents, which would manifestly be in the possession/ control of the Police if they were in the possession of the IOPC, included such obviously relevant evidence as –

1. The statement of the Officer who exploited my client, made in relation to her arrest (which is when she says his grooming of her began);

2. An “Information from member of the public” memo regarding my client’s complaint;

3. An “Allegation involving PC” memo also produced by the Police Force regarding my client’s complaint;

4. Handwritten notes taken by the Detective Sergeant who first interviewed my client in regards to her complaint;

5. Correspondence from the Professional Standards Department to the Officer involved, regarding the complaint; 

6. A detailed written record of the Officer’s interview by the Professional Standards Department in regards to the complaint; 

7. Correspondence between the Police and the IPCC;

8. The original Complaint Investigation Report itself.

These documents, as received from the IOPC, were inadequate for the purposes of the claim because they contain the standard SAR redactions – but the original, unredacted documents which must be in the possession/ control of the Police Force and should, therefore, have been included in their disclosure list, but were not. 

And all of this brings us back to the central importance of disclosure in civil proceedings – and, specifically, the Defence advanced by the Police in this particular case: that the Claimant should not be allowed to succeed in her claim because owing to the passage of time and the ‘limited’ amount of documents available, the Police are prevented from mounting a proper Defence and a fair trial cannot take place.

In my opinion, the Police’s prejudice argument can be characterised as akin to that of a fighter claiming prejudice because he has chosen to tie one of his hands behind his back, or has blindfolded himself; I think it is clear that the Police have, in this case, wilfully failed to search for material evidence in its possession, because the ‘less’ documentary evidence there is, the more that suits their defence.

I consider this to be a cynical exploitation of the rules governing ‘time limitation’ defences and have now commenced an application for Specific Disclosure against the Police to force them to properly search, catalogue and account for all of the relevant evidence. I am as confident of success in that application as I was in the other matters discussed in Part 1 of this blog.

These then, are some of the ways, in which Defendant Police Forces can delay, hamper and obstruct claims by failing to comply with disclosure rules; by seeking to keep their cards close to their chest (…or even up their sleeve…) – but experienced actions against the Police lawyers such as myself know how to read those cards, call their bluff and win the game.

This is a guest post by my colleague John Hagan, solicitor and fellow specialist in civil actions against the police.

In order to ensure a fair and efficient litigation process, and to increase the prospects of an early settlement, the Civil Procedure Rules (CPR) which govern the Courts of England and Wales, lay a heavy emphasis on a ‘cards on the table’ approach to the disclosure and sharing of evidence between parties involved in a legal dispute. 

Indeed, the duty to provide the other party with relevant documentary evidence arises even before Court proceedings have been commenced.

The Practice Direction on Pre-action Conduct provides that each party, the Claimant and the Defendant, should set out concise summaries of their case to one another in correspondence and disclose “key documents relevant to the issues in dispute”, whilst the Pre-action Personal Injury protocol specifically requires that the Defendant provide with its letter of response “documents in their possession which are material to the issues between the parties, and which would be likely to be ordered to be disclosed by the court, either on an application for pre-action disclosure, or on disclosure during proceedings.” (And no charge must be made for the provision of copies of those documents)

The duty of disclosure on the parties increases further once Court proceedings have been commenced and generally the first Case Management step that will be ordered by the Court will be for the parties to carry out a search for relevant documents (documents in this sense also including audio and video recordings, as well as written records, of course) and then to provide the other party with a list of all relevant material in relation to the case that is not subject to legal professional privilege (i.e. communications between solicitor and client). 

The parties are certainly not allowed to pick and chose what goes in the list simply to suit their case.  The requirements for standard disclosure are laid down by CPR Part 31 as follows –

Standard disclosure – what documents are to be disclosed

31.6 Standard disclosure requires a party to disclose only–

(a) the documents on which he relies; and

(b) the documents which –

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

(c) the documents which he is required to disclose by a relevant practice direction.

Duty of search

31.7

(1) When giving standard disclosure, a party is required to make a reasonable search for documents falling within rule 31.6(b) or (c).

(2) The factors relevant in deciding the reasonableness of a search include the following –

(a) the number of documents involved;

(b) the nature and complexity of the proceedings;

(c) the ease and expense of retrieval of any particular document; and

(d) the significance of any document which is likely to be located during the search.

(3) Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document.

This duty of disclosure extends not only to documents which are physically in the possession of the party or their solicitor, but also those documents which are held by third parties but which the Claimant or Defendant has a right to obtain (such as, for example, medical records held by a person’s GP, or financial records held by their accountant).

Thus, the duty of disclosure is defined as extending to documents which are in a party’s “possession or control”.

Disclosure is therefore a crucial phase in any Court case, and without proper compliance by the parties with the rules governing disclosure, a fair trial is ultimately not possible – just as the chance of an ‘out of Court’ settlement recedes if parties are kept in the dark about crucial evidence.

Sadly, experience has taught me that, despite the considerable resources at their disposal, the Defendants in most of the cases which I handle – our country’s regional Police Forces – are frequently poor at providing full and frank disclosure of evidence in civil cases. Considering the technologies and methodologies which the Police have available to them as law enforcement agencies, we are bound to consider whether inadequate disclosure on their part is as a result of laziness, incompetence or, – more cynically – is designed as a spoiling or delaying tactic in the litigation.

Thankfully, however, there are mechanisms available by which Claimant lawyers can hold the big Policing institutions to account when it comes to breaches, or apparent breaches, of their disclosure obligations and in this two-part blog post I am going to give some examples of how this works in practice.

1. CPR 31.16  Pre-action Disclosure Applications.
2. CPR 18.1    Requests for Further Information.
3. CPR 31.12  ‘Specific Disclosure’ Applications

In this week’s blog I will address the first two methods.

Pre-Action Disclosure – Vanishing video footage & Missing Dog Bite Reports

In one claim against West Midlands Police, brought on behalf of an innocent student who had a Police dog set upon him, I found the Police denial of liability was inadequately accompanied by relevant documents – in particular, they had only released the body camera footage filmed by one of the many officers involved in the incident and they had not provided all of the training records, operational licence forms of dog bite reports for the animal in question.

After the Police lawyers failed to hand over this material voluntarily, I issued a pre-action application to the Court i.e a stand-alone application prior to the commencement of full blown proceedings, limited in its scope to obtaining the missing evidence.

My application was successful, and the Chief Constable was ordered to provide all of the Police dog’s relevant records, along with photographs which officers had taken of my client’s injuries. During the application process, the Police also formally confirmed that all body camera footage other than that which had been disclosed had already been deleted; which at least allowed us to rule out the possibility of being ‘surprised’ by unexpected footage later in the proceedings. Finally, West Midlands Police also had to pay my client’s legal costs incurred in bringing the application, a measure of the Court’s disapproval of their conduct.

On the back of obtaining that evidence I was able to draft and issue a comprehensive Court claim against West Midlands Police, in response to which they filed a defence reversing their pre-action position and now admitting that my client had been wrongfully detained.

A Request for Further Information Reveals ‘Incriminating’ Emails

Another case which I am currently handling involves Norfolk Constabulary and the Ministry of Justice (MOJ) itself (on behalf of the Magistrates Court).  In this case my client was wrongly arrested for alleged breach of a bail condition which in fact had been rescinded at a Court hearing several weeks previously.   The Police and the MOJ filed Defences effectively blaming one another for the mistake; the MOJ claimed that its staff had correctly updated the Police as to the removal of my client’s bail conditions (albeit after a delay, but prior to the day she was arrested), whilst Police denied all knowledge of this and asserted that accordingly their Officers had carried out a legitimate arrest based on the information available to them on the Police National Computer (PNC).  Clearly their contradictory positions did not add up, and, after receiving their respective Defences, I therefore raised a series of Requests for Further Information under Part 18 of the Civil Procedure Rules, which provides as follows- . 

Obtaining further information

18.1

(1) The court may at any time order a party to –

(a) clarify any matter which is in dispute in the proceedings; or

(b) give additional information in relation to any such matter,

whether or not the matter is contained or referred to in a statement of case.

The purpose of my questions was to closely interrogate the positions which were being adopted by each of the Defendants, because the documentary evidence they had disclosed to date did not fully substantiate either of their positions and it seemed to my client and I that each Defendant was only telling the parts of the story that served their purpose.

I am pleased to confirm that in response to my formal requests, the Police handed over a series of previously unadmitted emails which revealed that senior Police Officers were aware that my client’s bail conditions had been lifted – but that they had failed to properly communicate this to their colleagues and, specifically, failed to update the PNC prior to the day my client was arrested.

Accordingly, Norfolk Constabulary have now held their hands up and admitted liability for my client’s loss of liberty.

Had the Police properly complied with their pre-action duty of disclosure, however,  then the need to involve the Ministry of Justice in these proceedings would probably have been avoided – whereas now Norfolk Constabulary will need to pay not only my client’s legal costs in bringing this claim, but also those incurred by the Government Legal Department on behalf of the MOJ.

The questions which I raised under the Part 18 procedure were thorough and meticulous – but the simple fact is that the Police lawyers should have been raising them of their own client long before I had to prompt them to do so; the shape of the ‘missing pieces’ in the evidential jigsaw puzzle of this case where there to be seen, had they bothered to look.

Next week, in the concluding part of this blog post, I will explain how the rules governing ‘Specific Disclosure’ were brought to bear against a Police Force which had failed to conduct a thorough search of its records, apparently so that it could advance a defence based on the absence of sufficient evidence…

An Englishman’s home is still  his Castle, even if you climb in through the window! As regular readers of this blog will know, the integrity of the home is a fundamental principle of the law of England and Wales which I am proud to uphold on behalf of those many clients of mine who have faced a Police ‘invasion’ of their property and privacy. The latest such client I have assisted is Mr Peter Murphy.

Peter is a 53 year-old man and former Olympic Games and Commonwealth Games Senior Spokesman, who at the time of these events resided in a ground- floor flat in the Wiltshire town of Marlborough.

In the early evening of 31 July 2020, PC Miller of Wiltshire Police attended at my client’s property.  PC Miller spoke with Peter’s neighbour, who alleged that Peter had approached him with what appeared to be a knife in his pocket and had threatened people.  On further questioning, however, Peter’s neighbour stated that it ‘could have been’ simply my client’s hand in his pocket, rather than a knife. For the avoidance of doubt, Peter Murphy did not threaten his neighbour or anyone else with a knife and nor was he is possession of such a weapon. It was a false accusation.  

PC Miller approached Peter’s ground-floor flat and opened a window; through that window he spoke to my client, who was inside the flat, and who stated that he did not wish to discuss the matter. PC Miller then informed Peter that he was under arrest for an unspecified “Public Order Offence”, because he was refusing to provide his account of the incident.

PC Miller then took a leaf out of the burglar’s book and climbed into Peter’s property through the window, completely uninvited. Peter was shocked but remained polite/ calm. Nevertheless, the energetic PC Miller now grabbed Peter and placed his right wrist into handcuffs, before forcing him face down onto a couch, knocking his glasses off in the process, and cuffing his left wrist with the assistance of another officer who also leant in through the window.  Again, Peter remained impeccably calm and did not resist, notwithstanding this gross violation of his home space and the totally unnecessary force being used to ‘shackle’ him in that home. 

PC Miller now stated that he had arrested Peter for an alleged breach of Section 4 of the Public Order Act.

Section 4 of the Public Order Act 1986 provides as follows-

Fear or provocation of violence.

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

(a)uses towards another person threatening, abusive or insulting words or behaviour, or

(b)distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting,

with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked.

…

(4)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale or both.

PC Miller then proceeded to search Peter and found a vape – not a knife – in his pocket. Peter fully co-operated with this search. Nevertheless, the Officers continued to treat him roughly; he was escorted outside and forcibly bundled into the rear of a police car, without his glasses and with only one shoe. 

PC Miller spoke to a female officer and confirmed to her that no ‘knife’ had actually been seen, even on the complainant’s own account.

Peter was then transported to Melksham Custody Suite (I will pause here to observe that the word ‘Suite’ is a gross euphemism for what is, in reality, a Police Prison complex – this is not a ‘suite’ any of us would want to check into…)  

PC Miller stated to the Custody Sergeant that he had arrested Peter on suspicion of a Public Order offence due to Peter’s refusal to “engage” with him, but notably did not address the question of the necessity of arrest. See my previous blog here about the ‘necessity criteria’ for arrest and why Officers must always consider less intrusive means of investigating an alleged offence than arrest.

Necessity Criteria: Why Failure To Consider Alternatives to Arrest is a Police Abuse of Power

The Custody Sergeant advised my client that she was authorising his detention so that the Police could “secure and preserve evidence” and “obtain evidence by question” i.e conduct an interview of Peter, under caution. Peter was taken to a cell, where he was further searched.

After Peter had been escorted to his cell, but now known to us because of the Custody Desk CCTV recording, PC Miller informed the Custody Sergeant that “if he [Peter Murphy] had spoken to me, I would have given him a ticket there and then and been done with it, instead I squeezed my athletic figure through a window…”.

Throughout his detention, Peter politely asked to be released and was repeatedly told that he would be released after he was interviewed.  This was also recorded in the Custody Record.  At 19:38, Officer Hunnisett recorded that “…DPA stated he wanted to go home, to which I stated he needs to be interviewed about the allegation”.   At 19:40, Officer Griffiths recorded that “DP has buzzed up to the desk asking if he can be released, I have tried to explain that he needs to be interviewed first…”

At 20:58, it was recorded on the custody record that the duty solicitor had been contacted and was awaiting a call for an interview.

At 04.30, Peter was brought out of his cell.  He complained of bruises to both of his wrists from the (unnecessary) application of handcuffs.

In the end, Peter was charged with breaching Section 5 of the Public Order Act 1986 and released from custody at around 05:00 on 1 August 2020 without being interviewed.  No explanation was provided to him, or recorded in the Custody Record as to why he had not been interviewed, despite the fact that throughout the night this had been the only apparent ‘justification’ for Peter’s continued incarceration.

Section 5 of the Public Order Act 1986 provides as follows-

Harassment, alarm or distress.

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

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

(b)displays any writing, sign or other visible representation which is threatening [or abusive],

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

...

(6)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.

It need hardly be added that the subsequent prosecution of Peter failed at trial, and he was completely exonerated from any wrongdoing.

Defending the Castle

After hearing about what had happened to Peter, I was keen to help him, and curious to examine the evidence. At the outset, my focus was on the Police’s failure to interview Peter notwithstanding that this appeared to be the justification to arrest and detain him. Accordingly, I insisted that all available Body Worn Camera and Custody CCTV footage be preserved. In due course, that evidence was disclosed to me by Wiltshire Police, along with a blanket denial of liability.

However, on review of the footage I immediately noticed the disjunct between the purported arrest of Peter under the more serious Section 4 of the Public Order Act 1986, and PC Miller’s remark that he would have issued Peter with a “ticket” if  Peter had spoken with him about the allegations. The implication of PC Miller’s remark was that he was intending to issue my client with a Penalty Notice (or “ticket”) for an offence committed under the less serious Section 5 Public Order Act 1986 (see above), rather than Section 4, because contravening the latter did not permit PC Miller to issue a Penalty Notice.

Whereas the more minor offence (Section 5) did allow the issuing of a Penalty Notice, it did not allow an Officer to enter uninvited into a person’s home to effect an arrest for that offence. Section 17 of the Police and Criminal Evidence Act (PACE) extends the power of entry, without a warrant, to a Constable intending to arrest a person for a Section 4 offence, but not a Section 5 offence.

This strongly suggested that PC Miller had improperly claimed to have a reasonable suspicion that Peter had committed a Section 4 Public Order Act offence (when in reality the Officer only suspected a lesser offence under Section 5) so as to justify his entering the flat to arrest Peter. If that was correct then the Officer, lacking honest suspicion of the Section 4 offence, was a trespasser when he entered the flat, was committing assault and battery when he laid hands on Peter, and the arrest itself, and consequent deprivation of my client’s liberty, was unlawful from the outset.

Furthermore, there was no evidence from the complainant, Peter’s neighbour, that he had actually seen Peter holding or threatening to use a ‘knife’. The case against my client, even at its highest, was weak and insubstantial. PC Miller and his colleagues appear to have completely overlooked the possibility of dealing with this matter, if it had to be further investigated at all, by inviting my client to attend the Police Station for a voluntary interview, which would have saved him the shame, stress, humiliation and deprivation of liberty that an arrest entails. No knife, but the Police certainly found “a sledgehammer to crack a nut”.

To compound Police culpability in this matter yet further, was the fact that Peter’s detention in custody, in excess of 10 hours, was supposedly so that he could be interviewed under caution, but no such interview ever took place, despite the Police having ample opportunity to do so. Even if Peter’s initial arrest had been justified, the continuance of his detention for no proper purpose – holding him for an interview that never came – would have given him grounds to sue for false imprisonment. But my considered assessment was now that there never was a basis to arrest, and the Police reluctance to conduct an interview just bore that out; after all, what do you interview a suspect about, when you have no real reason to suspect him of anything?

Peter initially went to the Police Complaints system for redress, only to have his complaint rejected by Wiltshire Police Professional Standards, who in their response  deployed that robotic- sounding,  passive-aggressive mantra :  “The service provided was acceptable.”

Peter himself certainly did not ‘accept’ that opinion, however, neither did I.

He also contacted Philip Wilkinson, the Police and Crime Commissioner for Swindon and Wiltshire, and sought an investigation into his arrest and prosecution.

In the circumstances, on my advice, Peter issued Court proceedings against the Chief Constable of Wiltshire Police, who in light of the evidence now agreed to settle, agreeing to pay Peter £8,000 compensation, plus his legal costs.

My firm view of this case is that Peter Murphy’s arrest was entirely unlawful. All he was actually doing was maintaining the borders of his home against unwarranted intrusion by an agent of the State, who should have respected his refusal not to submit to questioning.

Now Peter has – metaphorically – thrown the invaders from his castle and reaffirmed its integrity, and his own, with this excellent settlement, achieved with my expert assistance and his own courageous pursuit of justice.

On many occasions, the perpetrators of a ‘wrongful arrest’ whom I am called upon to sue for compensation are not the Police, but those self- appointed sheriffs of the high street: Supermarket staff and security guards, who often jump the gun with rabid and rough-handed accusations of shoplifting against innocent shoppers.

One afternoon in April 2023 my client Simon, a man of entirely good character, went into a Tesco Store wearing a backpack. He was hoping to buy a sandwich. Simon briefly browsed the shelves; however, he was unable to find anything that he fancied and therefore went to leave the store empty handed.

Simon was listening to music via headphones, and as he left the store was aware that a security guard said something, however he was unable to make out what was said and had no reason to believe it was directed at him. On that basis, he kept walking.

However, to Simon’s shock, the security guard then grabbed hold of the handle of Simon’s backpack from behind and struck him to the right side of his face. Also, Simon’s mobile phone was dislodged from his pocket onto the ground.

Simon remonstrated with the security guard, who accused my client of shoplifting. Indignant and smarting from the injury to his face, Simon nevertheless willingly emptied his backpack onto the ground to show that he had not taken anything. Simon was aware that the security guard was wearing a Body Worn Video camera that appeared to be recording the incident.

A member of Tesco staff then approached, picked up Simon’s mobile phone and stated words to the effect that he would now be unable to ‘get away’ as they had his phone.

By this point several members of the public had gathered and began recording the incident on their mobile phones. Some of these members of the public remonstrated with the security guard for assaulting my client and asked for the store manager. The Tesco staff member then identified themselves as the acting store manager and asserted that Simon deserved to be assaulted for shoplifting.

Officers from the Metropolitan Police now attended, and Simon’s mobile phone was returned to him. The police officers gathered statements from Simon, the security guard, and the staff member, in order to investigate the incident. Simon, who was of course entirely innocent, was then allowed to go about his business.

The security guard had attacked and detained an innocent man. Simon’s face, where he had been struck by the guard, stung for about 48 hours afterwards; but the psychological impact of that blow and the false accusation against him would sadly linger a lot longer.

Simon subsequently submitted a complaint about the incident to Tesco head office. Further, he made a Subject Access Request for the store CCTV and the security guard’s body worn video footage of the incident, which was disclosed.

After Simon consulted me about the matter, I presented a claim on his behalf to Tesco, seeking damages for false imprisonment, assault and battery and trespass to goods (the latter part of his claim relating to the temporary ‘confiscation’ of his phone).  

When Tesco’s lawyers attempted to buy off Simon’s claim with an offer of only £1,500 I advised him to reject the same and obtained medical evidence for him in relation to the extent of the psychological impact of this disturbing incident.

The evidence of the expert psychologist whom I appointed confirmed that Simon had suffered sleep disturbance and loss of appetite which caused him to feel vulnerable and exhausted.  Simon had also developed an anxiety about security guards and was now hyper-vigilant of any security guard who was similar in appearance to the man who had assaulted him.  Simon also suffered anxiety which caused him to avoid returning to the area of London where the incident had occurred, or indeed entering any Tesco store elsewhere, the sight of which brought back horrible memories for him of this incident in which he had been physically victimised and at the same time publicly labelled as a ‘criminal.’ This was a heavy burden for Simon to bear, given the ubiquitous presence of Tesco stores the length and breadth of the land. He was referred for counselling to address these issues.

I am pleased to confirm that I have recently settled Simon’s claim against Tesco Plc for £6,500 plus legal costs.

If you have been the victim of a false accusation of shoplifting by store employees/ security staff, particularly one involving any use of force against you or a ‘citizen’s arrest’, please contact me for help and advice and I will do my utmost to get you the compensation, accountability and apology you deserve.

Every little helps; but a lot helps a lot more.

I am sure that many of us have had occasion at the beginning of this new year to reflect upon the fact that the beginning of the Covid pandemic was no less than four years ago – although I am sure your memories of that time remain as vivid as mine.

During that first half of 2020, we all had to get use to ‘social distancing’ and lockdowns designed to keep people out of each other’s houses and confined to their own for significant swathes of time – in the middle of all of that, however, my clients the Bennet family suffered the trauma not of isolation in their home, but an invasion of it – by a gang of men whom at first they had no way of knowing were Officers of Cheshire Constabulary.

My client Emily Bennet lived at an address in Northwich, Cheshire with her young son and daughter, then aged 5 & 6 respectively. One morning, the family were all upstairs in their house when Emily saw a man downstairs and froze in fear, believing him to be a burglar. Her fear multiplied as she realised that the man was not alone, and two other members of this ‘gang’ of intruders started to come up the stairs towards her and her children.

Although one of the men now began to shout  “Police, Police, stay where you are, don’t move your hands“ they were not wearing Police uniforms, and had produced no warrant cards or other form of identification. Emily was terrified and her young children hysterical. One of the men now stood by the Bennets, whilst others began to search the rooms around them.

The man ‘guarding’ Emily shouted at her  “Don’t move your hands” and then “Who else is in the property?”. From their behaviour, Emily now began to guess that the men were indeed Police Officers, although this was hardly reassuring for her. She was told that the officers had a warrant to search for ‘drugs’ and was repeatedly asked where was ‘the male’. Emily informed the officers that no man lived in the premises, it was just her and her children.

Emily was now instructed to come downstairs “to do the admin.” She accompanied the Officers into the living room. She noticed that none of these men were wearing masks or gloves notwithstanding the ongoing Covid pandemic. Emily asked if she could take her son and daughter outside because they were traumatised enough and she did not want them to witness the search; the officer replied they were not allowed to leave the premises.

Emily and her children sat on one sofa and one of the Officers sat on the other sofa. Emily could see a second Policeman  in the kitchen on his phone and a third walking around the house. This third Policeman then asked Emily what number she lived at i.e what house they were in, and when she told him, the Officer pronounced “It’s the wrong  house!”. Throughout this time, both Emily and the children were crying and upset. It now became clear that the Officers had actually intended to search the house next door to Emily’s.

Nevertheless, the officers remained in Emily’s house for approximately 20 minutes, and as they were leaving they instructed Emily to wait inside whilst they went to the neighbouring property. Emily then heard her neighbours’ door being smashed in and the Officers shouting “Police, Police“.

Emily had to wait in her house, as instructed, for the officers to return from their search of the target premises, and she and her children thus remained prisoners, nervous and on edge in their own home for around a further 2 hours – a ‘lockdown’ indeed.

One of the Police Officers did then return and ‘apologised’ to Emily for their mistake, but in a flippant and half-hearted manner, that was more of an excuse than an apology, stating that what happened was ‘one of those things’ and that ‘it happens’.

To Emily, the officers appeared to have no understanding or empathy as to what they had done and the harm caused.  She lost faith and confidence in Cheshire Police and would think twice about contacting the Force for help/assistance in the future. To compound matters, Emily subsequently heard from the Officers’ supervisor by telephone and found him too to be dismissive of what had happened, trying to dissuade her from pursuing a ‘pointless’ complaint and flippantly commenting “If it makes any difference, I was on my way round with a box of maltesers”. 

Emily and her children were left in a state of shock and the psychological ramifications of this Police intrusion into their lives would take a lot of hard work and heartache to resolve. Their sense of safety and security in their own home had been grossly violated and Emily’s own trauma was multiplied by her awareness of her children’s upset and her desperate wish to protect them. The Covid years were stressful enough on young families without having your home itself become a place haunted by such a distressing memory, and Emily had to support her children emotionally as they both became very clingy to her, reluctant to sleep alone and fearful of strangers and sudden knocks at the door.

Matters were not finally brought under control for the family psychologically until late November 2022 when they moved out of the house to a new property; like leaving a haunted house and its ghosts behind, Emily and her children found a great psychological burden being lifted from them.

In response to letters of claim which I sent to Cheshire Constabulary on behalf of the family, the Police quickly admitted liability for their mistake – but failed to make any meaningful offers of settlement, resulting in me having to commence Court proceedings and drag the Police almost to the doors of Court, before my clients’ claims were finally settled in December 2023, only a week before the scheduled trial.

I pursued claims for Emily and her children not only for trespass to land and breach of Article 8 of the European Convention on Human Rights (the Right to Family and Private Life) but also for false imprisonment.  The tort of false imprisonment is committed when a person is unlawfully prevented from leaving a defined area, by means of physical barriers or threats/ commands. It does not require physical restraint and a person can be falsely imprisoned in their own home if, as in this case, the Police are issuing commands so as to restrict a person’s liberty, with an implied threat of force or legal punishment if those commands are breached. Most people whose houses are unlawfully searched will therefore also have, over and above a claim for the trespass itself, a claim for false imprisonment in their own home for the duration of the search, by reason of the Police having told them they can’t leave until the search is finished.

Of course ‘Keystone Cops’ errors such as this can occur no matter how meticulous the planning of a drugs operation is, and I have seen enough similar cases in my time to know that this type of ‘human error’ will always be with us – but when they do happen it is absolutely beholden on the Police to treat the matter with seriousness and not a sneer, and move heaven and earth to put things right for the innocent victims of their gross mistake, both financially and emotionally, especially when children are involved. Instead, Cheshire Constabulary approached this case in the usual truculent way the Police as an institution do to even clearly meritorious claims, offering excuses instead of real apologies, displaying enmity rather than empathy, and adding to the family’s stress by forcing them into the combative arena of litigation.

Fortunately, Emily was more than strong enough to face that challenge and with my support and guidance was able to finally achieve an excellent settlement for her and her young children; a damages award totalling £41,210 for the family, plus their legal costs.

I will let Emily have the last word, in the form of the poignant victim impact statement which she read out to Cheshire Constabulary’s legal team, including a senior Police Officer, at the final settlement meeting-

“Have any of you ever stood and watched three men enter your house without permission? Have any of you ever been so scared that your body is frozen to the spot and not even a sound or breath could leave your body? Have you ever had to listen to the terrified screams of your children whilst you’re told not to move and keep your hands where they can be seen whilst three men go into every room of your house without any explanation, leaving you unable to comfort or explain what was happening to your distraught,terrified children?! The answer I imagine is probably no and if the answer is yes then I’m certain that the perpetrators would have been arrested and charged with a crime. Unfortunately for myself and my children our justice was going to be a box of Maltesers as a way of a pathetic apology.

Another thing I’m certain of is that [the Police Officers] went home that night, had a good nights sleep and probably haven’t thought much about that day since or had a single repercussion. After all it was just another day in the office and it was ‘just one of those things, it happens’

Unfortunately, this is not the same reality for my children and I. Living with my own and more importantly my children’s PTSD has been the hardest few years of my life. Lack of sleep, being scared to live in your own home, Watching my children drop to the floor and crawl on all fours because of the sound of someone moving a wheelie bin for example, Having to try and live my life with two children who were until very recently unable to be in a separate room to myself at any time. There hasn’t been many areas of our lives this hasn’t affected!

I feel insulted, angry , shocked and ultimately disappointed with the way this whole ordeal has been dealt with. From the day it happened to this present day I’ve felt that it has in no way been taken seriously. I don’t feel I’ve had a sincere apology from anyone. I also don’t feel that the severity of what happened that day and the way it has affected our lives, mental health and my physical health since then has been taken seriously. Instead I’ve had several lies told by [the Police Officers] to try and justify what happened that day and told my complaints wouldn’t make any difference.

So what will make a difference? What will stop this happening to another family? Three TRAINED professionals entered my house after what I know will have been a result of weeks if not months of planning every detail of the operation, So how could something as simple as getting the right door number go so horribly wrong?! What happened to my family should never have happened and for it to be disregarded as ‘just one of those things’ because it was police officers that entered my house is disgraceful.

Unfortunately as a result of all of this my families faith in the police is diminished.”

My client’s name has been changed.

I have blogged before about the Police misuse of Mental Health Act powers and the distressing approach taken by all too many officers, which is that mental health issues are to be treated as if they are some sort of crime in and of themselves.

I have likewise previously highlighted the unedifying habit of the Metropolitan Police which is seemingly to encourage its officers to exercise a non-existent power of “detention” short of arrest, in the cynical knowledge that most people will assume that they need to ‘stay put’ simply because a Police Officer is telling them to do so.

Sadly, both of these Police vices came together in the Met’s grossly abusive treatment of my client Jervon a black Caribbean man who is vulnerable by reason of several mental health issues and was, to all intents and purposes, criminalised by the Met Police solely because of that vulnerability.

 

One afternoon in April 2019 Jervon made a routine visit to his local Building Society and was minding his own business in the queue, listening to music through his headphones, when he was startled by someone tapping him on the shoulder.

 

Jervon turned and saw that a woman had made physical contact with him; she apologised, stating that she thought Jervon was someone else.

 

Jervon acknowledged the apology but pointed out to the woman that her actions, in laying herhand on him, actually constituted an assault. The woman took offence at this.

 

The Building Society Manager then intervened and asked Jervon if he wanted him to call the Police, to which Jervon indicated that he did.  Jervon’s mental health issues were now causing him distress, in light of the woman’s unwanted physical contact with him, but at no point was Jervon himself aggressive or threatening to anyone present in the Building Society, and nor did anyone allege otherwise.

 

The Manager took Jervon to a partitioned area at the side of the room, offered him a glass of water and directed another member of staff to call the Police, so as to give reassurance to Jervon.

 

However, a second female member of the public now began to make comments about Jervon.  Jervon told the woman to mind her own business.  A man, believed to be this woman’s son, then entered the building society and stood next to her and began to stare at Jervon,  before removing his belt and wrapping it around his fist in a clearly intimidatory manner. 

 

Jervon felt threatened and told the man that he would defend himself if the man hit him.  The Branch Manager then ushered the second woman and the man out of the building.

 

Unbeknownst to Jervon at this time, the first woman who had touched him had called the Police – primarily because Jervon had suggested her actions were an assault and she wanted to explain what had happened.  Several minutes later six Metropolitan Police Officers arrived at the Building Society.

 

These officers spoke to some of the people at the scene, including the woman who had first touched Jervon.  This woman told the officers that Jervon had not done anything wrong and that she believed he was a vulnerable person.  

 

None of the witnesses spoken to by the officers suggested that they wanted Jervon arrested or prosecuted for any offence, which was quite correct because he had of course committed no offence whatsoever.

 

PC Little and PC Hillier then approached Jervon where he was sitting down, still in the partitioned area, and clearly not posing a threat to anyone or anything.

 

Seeing the officers approach, Jervon took out his Driving Licence from his wallet (so as to identify himself) and showed this to the officers.  The officers indicated that it was not required.  Jervon queried if he was under arrest and PC Little said that he was not.  Jervon then said that he did not want to talk to the officers unless he was under arrest and referred to wanting a solicitor.  

 

Jervon began to perceive that the officers were behaving in a hostile manner towards him, with PC Little commenting that his behaviour was “silly” and therefore Jervon took out his mobile phone and began recording the interaction for his own protection.

 

This was a sensible move and in my opinion was entirely within the range of reasonable behaviour by any person confronted by Police Officers who has a mobile phone to hand.

 

The officers seemed unhappy that Jervon was not talking to them, despite also acknowledging that he was not under any obligation to talk to them.

 

As Jervon, now standing up, continued to video record the officers, PC Doyle approached and, despite the absence of any power to lawfully detain Jervon, told him “At the moment you’re detained, while we investigate…”.

 

As I have alluded to above, “You are detained” is the stock phrase which Metropolitan Police Officers, in particular, use when they know that they haven’t got sufficient grounds to justify an arrest (or stop- search) and yet still want to assert power/control over an individual, often while they satisfy their curiosity as to what he has been up to or simply because they are unhappy that he is not ‘engaging’ with them.  In reality, the Police simply do not have a stand alone power of detention short of arrest in such circumstances but the Met’s unwritten playbook clearly includes this as a tactic for their officers to use against unsuspecting members of the public. 

 

Jervon, (who did not fully appreciate this, and nor should he have) – asked what the ‘charge’ against him was.  PC Doyle asserted “A Public Order offence at the moment … Public Order Section 4.”

 

Section 4(1) of the Public Order Act provides as follows-

A person is guilty of an offence if he—

(a)uses towards another person threatening, abusive or insulting words or behaviour, or

(b)distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting,

with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked.

 

As will be clear from my narrative of events above, Jervon could not reasonably be suspected of having committed a public order offence towards anyone; if anything, he had been the victim of such an offence (from the second women’s son). 

 

When Jervon then asked if he was actually under arrest PC Doyle repeatedly reiterated that Jervon was “detained”, as if this were some lawful alternative to arrest.  In reality, it is a trick or a bluff – an Officer relying on the pseudo-authority of his uniform and Police ‘persona’ to try and make someone obey him, when he lacks the legal authority to do so. 

 

Only now did PC Doyle ask the other officers present if there was “enough for a section 4 Public Order”.  None of them appeared to provide a verbal response and certainly none of them stated anything approaching grounds for such an arrest.

 

PC Doyle then pushed Jervon backwards, apparently in order to try to force him to sit down.  Jervon asked why PC Doyle was touching him and again asked if he was under arrest.  PC Doyle repeated his mantra that Jervon was ‘detained’ and instructed him to sit down.

 

PC Doyle then asked the other officers “136?” – which was presumably a reference to Section 136 of the Mental Health Act 1983.  PC Little replied “Happy with that”. In my opinion, the officer, having put the cart before the horse i.e detention without a lawful reason to detain, was now casting about to try and find such a reason. It was a perverse inversion of the way the Police are supposed to operate. 

 

Section 136 (1) of the Mental Health Act provides-

If a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons—

(a)remove the person to a place of safety within the meaning of section 135, or

(b)if the person is already at a place of safety within the meaning of that section, keep the person at that place or remove the person to another place of safety.

 

Once again, I trust it will be clear from the description above, that Jervon was not in the grip of any ‘mental disorder’ requiring ‘immediate control’ and the only danger to him in these circumstances was the officers themselves. 

 

Feeling confused and threatened, and having previously been told by PC Doyle that he would only get a solicitor if he went to Custody, Jervon now said that he would cooperate if under arrest and PC Doyle – despite apparently having ruled out any basis for arresting Jervon (because of course, none existed) and having, just moments before, being apparently contemplating the use of Mental Health Act powers – now told Jervon that he was indeed under arrest. Notably however, he did not provide any grounds for this alleged ‘arrest’.

 

Instead, PC Doyle now again asked his colleagues if they had enough for a “136” and PC Little, despite having earlier said that she was “happy” with this approach now admitted “I don’t know, because he won’t talk to us.”

 

Jervon was now asking the officers for their badge numbers, and while he was doing so PC Doyle apparently noticed the driving licence which Jervon had earlier produced and which he had placed on a table.  

 

Without having any lawful power to do so – Jervon not being under arrest or being subject to any stop and search powers – PC Doyle reached down and picked up Jervon’s driving licence and then referred to my client by his first name, having evidently read it off the licence. 

 

When Jervon noticed what PC Doyle was doing, he asserted that the driving licence was his and told PC Doyle that he was stealing.

 

Jervon again asked if he was under arrest and tried to ask for his driving licence back, but PC Doyle kept hold of it and refused to return it. 

 

Jervon therefore tried to take his driving licence from PC Doyle, but the officer pushed him and tried to prevent him from taking it.

 

A struggle then ensued and the officers took Jervon to the ground and handcuffed him.  PC Doyle then radioed for a van stating “One male arrested, assault police, public order”.

 

In fact, none of the officers had received any information suggesting that Jervon had had at any point committed a Public Order offence and Jervon had not been legitimately told that he was under arrest at any point,  and nor had any grounds for any arrest been given.

 

Jervon’s actions in attempting to recover his driving licence from PC Doyle had been entirely lawful given that he was not under arrest at the time, and therefore the officer was committing an act of trespass to Jervon’s property. The Police would then escalate that situation by committing trespass to Jervon’s person, in the manner described above.

 

Despite Jervon not resisting, the officers continued to restrain him in a prone position on the floor of the Building Society, with his hands handcuffed behind his back.

 

PC Doyle then used his radio again stating “There’s a male been arrested for assault police, punching out at officers…….”

 

This time, PC Doyle did not mention the alleged arrest of Jervon for a ‘Public Order’ offence nor did he give any details of his own conduct which had led up to Jervon’s arrest.

 

The officers then lifted Jervon into a sitting position, whilst the Branch Manager explained to PC Doyle how the incident had started when a woman had touched Jervon and that other customers had then become involved “for no bloody reason” and that “the son’s taken his belt off” which had ‘wound’ Jervon up.

 

Whilst Jervon remained detained by the officers he became extremely distressed, and began to shake and cry out in pain.  He told the officers they were hurting his arm, referring to the handcuffs.

 

Jervon was eventually lifted up by the officers and escorted to a waiting Police van outside.

 

Whilst Jervon was being searched prior to being placed into the van, he again asked what he had been arrested for.  PC Hawton seemed unsure but eventually said “Assault on Police”.  PC Hawton said that Jervon was accused of assaulting PC Doyle and that at the moment that was the only thing he was arrested for.

 

Jervon was then locked into the rear of the van and a short while later was spoken to by PC Hillier who now asserted that he was under arrest “For assaulting Police and section 4 Public Order…” but failed to provide any information about what Jervon was said to have done amounting to either an Assault on a Police officer or a Public Order offence.

 

Jervon was then driven to a local Police Station and taken into custody.  Rather than being given the normal booking in procedure in person at the custody desk – in front of a Custody Sergeant – Jervon was taken from the van and placed straight into a cell. Once again, the officers were riding roughshod over Jervon’s rights and perhaps they thought they could get away with it because of his perceived mental health difficulties. 

 

In the meantime, in Jervon’s absence, the circumstances of his arrest were recorded on the Custody Record as follows – 

 

“Police called to the location to a male being disruptive and abusive.  Upon arrival the PD was spoken to during which  he has punched one officer.”

 

There was no mention in the Custody Record of the account given by the woman who had touched Jervon in the first place, nor that of the Branch Manager, as to what had actually occurred in the Building Society.  There was also no mention made of the officers’s own conduct, and in particular PC Doyle’s conduct in confiscating and refusing to return Jervon’s driving licence, which had directly led up to his arrest. 

 

While in the cell, due to the shock and distress he was experiencing at the treatment he had received, Jervon experienced thoughts of self-harm, to such a degree that he tied items of clothing around his neck. Multiple officers entered the cell, forcibly restrained Jervon upon the ground and stripped him of all of his clothing leaving him naked in the cell.

 

Jervon suffered neck pain, back pain and bruises to his knees by means of his rough handling by the officers and was left feeling utterly degraded. His requests for anxiety medication to alleviate his ongoing mental distress were denied.  It will be noted that all of this was in the context of the Police having chosen to ‘skip’ the proper booking in procedure for Jervon, thereby denying him the protections for detained persons which are laid down by PACE (the Police and Criminal Evidence Act 1984) and which are supposed to include a thorough risk assessment before a person is placed alone in a cell. This disregard for PACE in Custody mirrored the disregard for the proper laws of arrest which Jervon had suffered in the Building Society. In my opinion the officers involved in this incident were disgracefully treating a mentally vulnerable individual like a second-class citizen, denied the full respect and protection of the law. 

 

Jervon was detained overnight at the station and interviewed the following morning in the presence of an Appropriate Adult. 

 

Several hours later a charging decision made by the Metropolitan Police themselves rather than the Crown Prosecution Service led to Jervon being charged with a Section 4 Public Order Act offence against the Manager of the Building Society (despite there having been no altercation between them) and an Assault on an Emergency Worker offence against PC Doyle. 

 

Jervon was then further charged with a similar offence of Assault on an Emergency Worker in respect of PC Little.

 

Jervon remained in detention overnight (now his second night in custody) before being taken to Ealing Magistrates’ Court where he was refused bail and remanded into prison custody at HMP Wormwood Scrubs.  

 

Jervon was to remain detained in the prison for almost three weeks, before finally being released when the Crown Prosecution Service, who were now involved, discontinued all of the charges against him stating that there was insufficient evidence to provide a realistic prospect of conviction.

 

Whilst in Police custody Jervon had made multiple complaints about his treatment which were in my opinion entirely justified but – unsurprisingly – when in December 2019 the Metropolitan Police’s Professional Standards Unit wrote to Jervon to confirm the outcome of his complaint, it was that none of these complaints were upheld. 

 

My shorthand for understanding the likelihood of any member of the public having their complaint upheld by Professional Standards is to imagine that the Professional Standards Departments are all branches of the Police Officers’ Union, the Police Federation.  Professional Standards investigators simply do not approach complaints in a fair and open mind; they seemed dedicated to finding reasons to dismiss complaints, not uphold them.  Curious behaviour for a profession whose purpose is to uphold the law, and bring malefactors to account… 

Fortunately, there are other ways to uphold the law – because we don’t just have criminal justice, we have civil justice as well.

When Jervon turned to me for help, I was proud to fight his corner and bring Court proceedings against the Metropolitan Police.  As a vulnerable individual who has to cope with mental health issues, and who has a heightened sensitivity to unwanted physical contact from strangers, Jervon should have been treated by others – and especially by the Police – with compassion, but instead he was treated with contempt, which then turned into an attempted to criminalise him. 

 

However, Jervon begins this New Year substantially better off than the last one, as I have just settled his claim against the Met for a five-figure sum of damages, but, more importantly, I have helped him to make his voice heard, to achieve accountability from those in power and a sense of justice being done; because despite the way the Police treated him, he is, like all of us, a first-class citizen.

As we draw ever nearer to the Christmas holiday season, many people in this country will be looking forward to travelling to spend time with their families or enjoying a short break abroad.  Many of those travel plans will inevitably involve airport transit, and I wrote recently about the considerable number of wrongful arrests that occur at airports owing to the Police and/or Court record- keeping errors; the simplest mistake in such a system can so easily result in the traumatic experience of an innocent person being arrested at the Departure Gate or at Border Control in front of their friends/ family.

Sadly, such an experience – yet another wrongful arrest at an airport – befell my client Imran, a Safety Inspector and man of unblemished character, in the circumstances which I will explain below.

In December 2020 my client Imran’s ex-wife applied to the Family Court at Birmingham for a “Forced Marriage Protection Order” in relation to their daughter (who was then 15 years old).

This application was initially dealt with “ex parte” i.e. without Imran being present or able to make representations to the Court.  ‘Ex parte’ orders of this nature are designed to ensure a short-term preservation of the ‘status quo’, until the Court has the chance to consider all the evidence at a full hearing attended by all of the parties.

The ex parte order forbade Imran from removing his daughter from the jurisdiction of the Court (i.e.  England and Wales) or for applying for a new passport or any other travel documents for her and it further forbade Imran entering into any matrimonial arrangements for his daughter whether in the UK or abroad.

The order ended with a “Note to Arresting Officer” that stated –

“Under section 63CA of Family Law Act 1996 breach of a Forced Marriage Protection Order is a criminal offence punishable by up to 5 years imprisonment.  It is an arrestable offence and it is not necessary to obtain a warrant.

A person who without reasonable excuse does anything that he is prohibited from doing by a Forced Marriage Protection Order is guilty of an offence.”

The matter then came back before the Family Court for a full hearing in February 2021 at which the Court, notably, amended the Order so as to allow Imran to apply for travel documents for his daughter and to take her abroad – subject to Imran notifying his ex wife of any such travel plans at least four weeks in advance of any trip; Imran providing his ex wife with details of where their daughter would be staying abroad (and copies of her travel tickets) and a stipulation that Imran could not take his daughter abroad for a period of more than two weeks at a time.

The order concluded with the same note to any arresting officer in relation to breach of the order, as cited above.

In the circumstances, although the Forced Marriage Protection Order was to continue until February 2024, my client was now entitled to take his daughter out of the country, subject to satisfying the three conditions referred to above.

Arrested at the Airport

In the summer of 2022, Imran made arrangements to travel to Pakistan with his second wife, their infant son and his now 17-year-old daughter (the subject of the Forced Marriage Protection Order).

The family were to travel from Gatwick Airport on the morning of the 25 September 2022.

My client’s second wife is a Pakistani citizen who speaks very little English.  His infant son was just 4 months old.

In making arrangements to travel, Imran had fully complied with the terms of the Forced Marriage Protection Order in that-

i)                   He had informed his ex wife of his plans to travel abroad with their daughter at least 4 weeks in advance;

ii)                 He had provided to his ex wife details of where they would be staying whilst abroad, together with copies of her travel tickets including her return ticket; and

iii)               The trip was to last for 14 days only.

At approximately 7.45am, my client and his family were at the airport gate ready to board their plane.

Imran was then approached by two officers of Sussex Police. Imran was told that he would not be boarding any plane and that he was under arrest.  He was handcuffed to the front and then led away from his family.

Imran was understandably distraught, as was his family.

Imran was now taken to Crawley Police Station, where he arrived at approximately 9.20am. 

Despite requesting to speak to a solicitor, no such access was provided, and my client was kept in custody throughout the day and overnight, worrying about his family from whom he had been so abruptly and forcibly removed.

On the morning of the 26 September, Imran was informed that he was going to be taken to Crawley Magistrates’ Court.

Imran was then led in handcuffs to a police van, whereupon he was told that he was in fact going to be taken all the way to the Family Court in Birmingham.

Upon arrival, Imran was again handcuffed and brought out of the van and into the Court. Enquiries were made.  It was now suggested that my client should be taken to the Crown Court.

Imran was then returned to the van, his handcuffs were removed, and he was driven to Birmingham Crown Court.

Upon arrival, Imran was, once again, subjected to the shameful experience of being handcuffed and brought out of the van and taken into the Court building. Once again, Court staff were unable to assist, and the transport staff were now directed to take my client to the Magistrates’ Court.

Imran was then transported to Birmingham Magistrates’ Court.

Outside the Court, the van driver apparently made enquiries with his Operations Manager and it was now decided that my client had ‘no case to answer’ and should be immediately released. This twisted ‘magical mystery tour’ had finally come to an end, and not a moment too soon…Imran’s unlawful detention from 7.45am on 25 September 2022 to approximately 7.00pm on 26 September 2022 had been a period of over 35 hours.

By this stage, Imran felt sick and was distressed not only as regards his own predicament, but also that of his family.

Imran’s property was returned to him, and he was finally able to call his wife. He established that his wife and children had stayed the night before at an airport hotel. He was able to make arrangements for a friend, who was a taxi driver, to drive to Gatwick Airport, pick up his family and bring them home. Imran returned home and later that evening, was reunited with his wife and children. The family had incurred considerable expense in terms of wasted flights, hotel and taxi charges, but the emotional toll upon them all was far worse. 

My client is a man of entirely good character and the whole experience was very alien to him and has left him with huge feelings of anxiety when he is at the Airport and an understandable degree of ‘paranoia’ about the Police.  Although this has settled to some extent, his anxiety around going to the Airport and travelling by air is still present. He told me: “It felt horrible being lifted like a criminal at the gate of the Airport.”

After conducting investigations on behalf of Imran, I established that Sussex Police – the Force whose officers actually arrested Imran at the Airport and thereafter arranged for his transportation to Court – were almost certainly not liable themselves for his wrongful arrest, because it transpired that the Police National Computer system (PNC) had not been updated to reflect the significant change in the conditions of the Forced Marriage Protection Order following the hearing in February 2021.  In other words, according to the PNC it was still a ‘crime’ for Imran to be taking his daughter abroad at all, in any circumstances.

I established that the failure to correctly update the PNC lay at the door of the local Force in Birmingham i.e. West Midlands Police.

Accordingly, I pursued a claim on Imran’s behalf against West Midlands Police for breach of Article 5 of the European Convention on Human Rights (ECHR), negligence and breach of the Data Protection Act 2018.

It was the failure of West Midlands Police to ensure that the PNC details were accurate which had caused Sussex Police to wrongly believe that Imran was breaching the Court Order.

I am pleased to confirm that I have this month successfully concluded Imran’s claim, with West Midlands Police agreeing to pay him damages of £17,250 plus his legal costs.

Until the Police significantly sharpen up their data recording practices and staff training, however, I can only see this type of absurd and abusive airport departure – into unlawful custody- continuing time and time again.

My client’s name has been changed.