During this time of year, the delivery of post and parcels is at the forefront of many people’s minds…but none can have such a sting in the tail as an incorrectly addressed Court summons, which brings the very opposite of Christmas cheer to its non- recipient.
On the 9 November 2021, my client Daniel was arrested by the Metropolitan Police for driving a motor vehicle whilst over the prescribed drug drive limit. He was conveyed to Wandsworth Custody Suite where he was processed.
Daniel clearly confirmed his address as “Flat 1”at an apartment block in Wimbledon, London. He was then released under investigation.
It appears that a decision was subsequently made to prosecute Daniel and a postal requisition was drawn up requiring his attendance at Wimbledon Magistrates’ Court on 28 February 2022. However, the requisition was incorrectly addressed to my client at Flat 4 of the apartment building.
According to the witness statement of PC Martin dated 13 February 2022, this requisition was hand-delivered to Flat 4 on 13 February 2022.
Naturally, Daniel did not receive the postal requisition and therefore did not attend Court on 28 February 2022, remaining blissfully, and innocently, ignorant of the same. However, owing to his failure to attend, a Warrant was then issued for Daniel’s arrest.
At around 2.00 am on 1 March 2022, officers attended my client’s home address and, to his shock, arrested him in respect of this Warrant.
Daniel was again conveyed to Wandsworth Custody Suite before later being transported to Wimbledon Magistrates’ Court. At Court, it was established that the address on the postal requisition was incorrect, and the Court accepted that Daniel had never received the requisition. In the circumstances, a new hearing date was fixed, and my client was released.
As a result of this elementary administrative error, Daniel had been wrongfully arrested and deprived of his liberty for a total period of approximately 10 hours.
He instructed me to pursue a claim for wrongful arrest on his behalf against the Met and I am pleased to report that I have recently concluded the same for a damages payment of £5,000 plus legal costs.
I trust that the Met will learn the necessary lessons from this case: what might be a minor ‘typo’ in the hands of somebody else, can in the hands of the Police become the instrument of a person losing their liberty and Court time and resources being vastly wasted. Absolute attention to detail is required when people’s liberty is at stake.
Thankfully, Daniel will now be receiving something far more pleasant in the post…
I have recently settled claims on behalf of a client whom I will identify by the name of “David” who suffered wrongful arrest on no less than three occasions in a space of three weeks owing to mistakes made and the monitoring of his electronic tag by the Electronic Monitoring Service (EMS) – indeed, the very same basic error repeated on three occasions.
As I highlighted in a blog in September 2021, the day-to-day monitoring of electronic tags (EMS) is something which has been out-sourced to the private company Capita, who were reported in a 2016 review by the University of Leeds, to be working on a ‘call centre model’ with staff who are generally lacking in probation, social work or other criminal justice sector training or experience. Reflect on that as you read David’s story…
The Electronic Mistake Service
In June 2021 David appeared before Liverpool Crown Court and was convicted of several offences. In addition to a suspended custodial sentence, David was also sentenced to an electronically monitored curfew requiring him to stay at home daily from 1600h to 0800h for three months.
On the 15th and again on the 16th July 2021, David fell into breach of the curfew, for a total time of approximately 15 minutes. These breaches should have been reported to the Probation Service as breaches of David’s sentence, with the Probation Service then to determine the appropriate level of response. However, EMS erroneously reported these breaches directly to Merseyside Police as breaches of court bail causing police officers to attend David’s home on 18th July and arrest him for “breach of bail”.
David was conveyed to his local Custody Suite, notwithstanding the fact that he was suffering from an illness and vomited in the police car, and on reaching the Custody Suite was searched and had his fingerprints taken.
Unfortunately, David suffers from a number of mental health issues, specifically depression, anxiety and post-traumatic stress disorder, and his prolonged detention in the police station (amounting to almost 22 hours) exacerbated these conditions.
David was also a carer for his disabled mother, and his detention caused them both distress as he was unable to attend to her.
After being held in a police cell overnight David was transferred to Wirral Magistrates’ Court where it was established that he was not in breach of any bail conditions and furthermore that the Probation Service had not requested David’s arrest for breaching his sentence.
He was therefore released from Court after some 26 hours of false imprisonment.
Repeat offenders
Unfortunately, the very same set of events reoccurred a mere two weeks later.
On 31st July 2021 David again fell into breach of the curfew, for a total of approximately 19 minutes. Once again, EMS erroneously reported this breach to Merseyside Police as if it were a breach of bail, causing officers to be sent to David’s home on 2nd August, where they arrested him for breach of bail. Once again he was taken to his local Police Station where he went through the entire custodial process as set out above – although this time he was much more swiftly transferred to the Magistrates’ Court, where once again it was determined that he was not in breach of any bail conditions and that the Probation Service had not requested his arrest and hence he was immediately released, after some 4 hours of unlawful detention.
Third time’s the charm?
This was still not the end of the sorry saga, however. On 6th August 2021 David again fell into breach of the curfew, which once again EMS reported to Merseyside Police as a breach of bail rather than reporting to the Probation Service as a breach of David’s sentence.
Therefore, officers from Merseyside Police were again tasked to attend David’s home and did so on 9 August arresting him for breach of bail, again taking him into Custody where he was processed and detained for over 4 hours. Thankfully on this occasion however, David’s criminal defence solicitor was able to save everybody the time and money that would have been wasted in detaining David overnight to appear before Court the following day – by drawing the Custody staffs’ attention to the fact that that David was not subject to a curfew due to bail conditions, but rather due to a sentence and therefore that the information EMS had given to Merseyside Police was, once again, fundamentally inaccurate.
In total, across these three events David had suffered some 34 hours 24 minutes of false imprisonment and all because of a ‘schoolboy’ error which EMS (Capita) kept repeating.
Whilst it is accepted that on each of these occasions David was genuinely in breach of his curfew – albeit to a relatively minor degree – the fact is that those serving a criminal sentence are not second-class citizens but are often extremely vulnerable individuals who deserve the equal protection of our laws if their rights are infringed. The villain of this piece is not David but rather EMS who through negligent record keeping and/or administration wrongfully caused David to be incarcerated in distressing circumstances on three separate occasions and wasted significant amounts of police and court time in doing so.
It almost beggars belief that EMS did not learn their lesson after the first such error, but instead went on to repeat it on two further occasions in such a short period of time.
I am pleased to report that I have recently recovered damages for David from EMS for each of these wrongful arrests, totalling £14,000 plus legal costs.
Perhaps that will make EMS think twice about their standards of staff training and management and supervision of offenders – or should we say thrice?
Today’s blog post explains how I was able to help a young black man achieve justice against Avon and Somerset Police, despite not being instructed until over 5 years after the incident in question.
My client, whom I will identify as Edward for the purposes of this blog, had originally instructed other solicitors who abandoned his claim when it became too ‘difficult’, after Avon and Somerset denied liability.
I assessed the available evidence – including some short but crucial mobile phone footage of the incident which had been filmed by Edward and his partner Samantha – and confirmed that I was happy to pursue Edward’s case on a Conditional Fee (no win, no fee) basis, despite the fact that by the time he instructed me, we were fast approaching the 6th anniversary of the incident, which is the cut off point for bringing a civil claim in respect of wrongful arrest in England or Wales. I was able to make this apparently risky commitment to Edward’s case because of my decades of experience in assessing the evidence and merits of such claims and the confidence I have which comes from my equally long track record of success.
Had Edward waited another 6 months before instructing me then his right to pursue the claim at all would have been irrevocably lost. What follows is the story of what happened to Edward and how he and I were able to snatch victory from the jaws of defeat and win his claim against Avon and Somerset Police for a substantial award of damages.
Serve, Respect, Protect?
“Serve, respect, protect” is the slogan of Avon and Somerset Police, but during the encounter between two of their Officers and Edward on a day in May 2013, Edward was to be on the receiving end of treatment which was the exact opposite of those self- proclaimed virtues.
On the day in question, Edward was driving his Renault Clio motor car through Bristol. He was driving safely and within the speed limit and his pregnant partner Samantha was with him in the car.
At around 7.00pm a marked police vehicle passed Edward’s car, headed in the opposite direction. The vehicle executed a sudden u-turn and then followed Edward’s car, before turning on its emergency vehicle lights.
When Edward saw this, he pulled in on the left-hand side of the road. The police vehicle pulled up behind.
Edward turned off his lights and wound down the driver’s side window.
A uniformed officer, PC Talbot, approached and spoke to Edward.
PC Talbot asked if Edward was the owner of the car, which Edward confirmed he was. PC Talbot then asked Edward to show him the dashboard lights (which Edward had bought from Halfords). Edward complied with this request.
PC Talbot then said that he did not believe the side lights were legal. Edward believed they were, as they were already fitted to the car when he bought it (from a dealership). PC Talbot asked him to turn them back on and after a mild protest, Edward duly did so.
Whilst Edward was speaking to PC Talbot, another officer, PC Brooks, approached the car and carried out a tint check on the side windows. Upon carrying out the check, PC Brooks told Edward that the windows were below the legal limit. Again, Edward explained that the tinted windows were already fitted to the car when he bought it from a dealership and therefore he had believed them to be legal.
As far as Edward was concerned, the two officers appeared to be looking for a bureaucratic excuse to hassle him and exert their own power.
PC Talbot now asked Edward for identification; Edward explained that he had left his wallet at home, but would be willing to produce his licence at a police station within 7 days.
PC Talbot then stated – out of the blue – that he was going to “seize” Edward’s vehicle. He reached into the car and removed the keys without Edward’s permission and walked away.
Edward was understandably frustrated by PC Talbot’s overbearing actions, but he did not swear or otherwise become physically or verbally aggressive. He simply got out of the car and turned on the video recording function on his phone. What followed next was (briefly) caught on camera – until PC Brooks used force to snatch the phone from Edward and end the recording.
Standing beside his car, Edward began recording PC Brooks. He then approached PC Brooks in a non-threatening manner, speaking in a calm tone of voice and stating that he was with an officer. He first pointed at PC Brooks’s badge number and then raised his phone to capture PC Brooks’s face. He did not ram or otherwise thrust the camera towards PC Brooks in doing so.
PC Brooks said to Edward “You don’t have my permission to film me.” Such permission was not in fact required, but PC Brooks nevertheless then grabbed Edward’s arm and attempted to take the phone from him, giving no warning or explanation to Edward of what he was trying to do.
PC Brooks accused Edward of “ramming the phone” into his face, which Edward denied. Edward maintained hold of his phone and, in so doing, was moved by PC Brooks along the pavement.
At the same time, Samantha also started filming on her phone and exited the vehicle. In a state of shock, she asked what the officers were doing.
Edward attempted to hold onto his phone, quite correctly pointing out that it was his personal property and that he was not under arrest.
In response, PC Brooks stated “Well, you’re now under arrest”. Edward was forced into the nearside rear seat of the police car. PC Brooks announced that Edward was under arrest for “assaulting a police constable”.
Edward now attempted to pass his phone to Samantha; in response, PC Talbot pushed the pregnant woman away.
PC Brooks now roughly handcuffed Edward, causing two abrasions on his left wrist and a cut to his right thumb. Upon handcuffing him, PC Brooks pushed Edward back and said words to the effect of “Sit down you black cunt” and shut the door.
The officers then drove away with Edward imprisoned in their car, in a state of shock and disbelief at how he was being treated and how things had escalated.
On their arrival at the local Custody Suite, PC Brooks provided the arrest circumstances and suggested that Edward had attempted to bite him. Edward immediately disputed this. Rather, Edward pointed out to the Custody Sergeant that it was he who had been unlawfully assaulted by the officers and he rightfully complained about the disgraceful circumstances of his arrest. He showed the Custody Sergeant the injuries he had sustained to his hands. Nevertheless, and as is par for the course, the Sergeant preferred his colleagues’ account and authorised Edward’s incarceration in a cell, pending interview under caution. The Sergeant explained he would contact the duty inspector to deal with Edward’s complaint. Edward requested a duty solicitor and to see an independent medical examiner.
In due course, the duty Inspector did indeed come to hear Edward’s complaint about PC Brooks’s and PC Talbot’s conduct. Edward also showed the Inspector the video footage he had managed to capture before the officers started to manhandle him.
After several hours, Edward was seen by a Healthcare Practitioner who recorded his injuries.
Later, Edward was taken for interview under caution. He gave a full comment interview and an account of being assaulted by the officers. He denied the allegations being made by PC Talbot and PC Brooks and, indeed, offered to have his fingernails tested for PC Brooks’s DNA.
Nevertheless, in the early hours of the morning, Edward was then charged with three offences, namely that:
1. He had assaulted PC Brooks in the execution of his duty.
2. He had used a motor vehicle with windows which permitted insufficient transmission of light.
3. He had used a motor vehicle which was fitted with a device resembling a blue warning beacon.
He was then released on unconditional bail and told to attend Bristol Magistrates Court.
On his first appearance at Court in July 2013, Edward entered a not guilty plea in relation to the charge of assault, whilst pleading guilty to the minor motor vehicle offences – for which his solicitors advised him he was technically liable – and the Magistrates imposed a penalty fine of £175.
The charge of assaulting a Police Officer continued to hang over Edward’s head for a further two months however, causing him all the stress and anxiety which any of us would feel facing such a serious criminal accusation, even though we knew we were innocent.
Almost needless to say, Edward’s own complaint had by this time (after a cursory investigation, lasting less than a month) been rejected on all counts by Avon & Somerset’s “Professional Standards” Department.
In September 2013, Edward attended Bristol Magistrates Court for trial. PC Brooks had made a written statement for the prosecution in which he variously accused Edward of-
1. Having been generally aggressive, loud, shouting and abusive;
2. Of attempting but failing to bite the Officer (presumably to explain why there were no bite marks to be seen – despite the officer having apparently felt Edward’s “lips and teeth on my arm”);
3. Digging his fingernails into the officer’s thumb, causing it to bleed;
4. Of being racist because the officers were white (it was alleged that Edward had called them “white skinhead racist cunts” whereas the officers denied calling Edward a “black cunt” as he had reported)
Perhaps the most incredible part of PC Brooks’s statement, however, was his assertion that he genuinely feared that Edward was about to attack him with a ‘stun gun’ disguised as a phone; the officer first describing that object as if he were a time-traveller from the Middle Ages – “a small black box in his hand, it had an apple symbol on the back case…” – before conceding it “had the appearance of an iphone.”
During the course of the hearing, the Magistrates were played the video footage that had been captured by Edward and Samantha on their phones, and shortly afterwards concluded that there was no case for Edward to answer and dismissed the charge against him.
Victory In The Civil Proceedings
A victory in the Magistrates Court – in which the prosecution has to prove its case ‘beyond reasonable doubt’ – certainly does not automatically equate to victory in a civil claim, where it is far easier for the Police to persuade the Court to prefer their version of events ‘on the balance of probabilities.’ Remember that Edward’s complaint had already been comprehensively rejected and the original solicitors he had instructed had dropped his case when the Police denied civil liability.
Following my review of the evidence and the denial of liability from Avon and Somerset’s legal department, I determined that Edward did have a winnable claim in respect of not only wrongful arrest but also malicious prosecution on the basis that the Officers had falsely accused Edward of assaulting them in order to cover up their own illegal actions towards him. I also identified that Edward was out of time to bring a claim for personal injury (whether physical or psychological) because Court proceedings in respect of such a claim should have been issued within 3 years of the incident i.e. no later than May 2016, which was, sadly, long before I was instructed.
However, Edward was still ‘in time’ to bring claims for loss of liberty and the distress, anxiety and damage to his reputation caused by the false criminal charge – as such claims can be brought within 6 years of the relevant events, irrespective of injury.
My advice to Edward was therefore that we should issue Court proceedings in respect of the wrongful arrest and malicious prosecution claims without further delay, and that was exactly what was done.
I then gave Avon and Somerset Police an opportunity to settle Edward’s claim through negotiation out of Court, but unfortunately, they refused to take it – maintaining their denial of liability and standing 100% behind their Officers’ accounts of what had happened – and accordingly it was necessary to serve the Court proceedings upon the Chief Constable and proceed to full blown litigation.
Avon and Somerset filed a Defence maintaining their denial of liability and continued to fight the litigation vigorously, such that Edward’s case was placed into a trial window of April – July 2023.
However, I remained steadfast in my support of Edward’s case, whilst Edward showed great courage in being committed to taking his case all the way to Trial despite the risk of there being a substantial legal costs order made against him should he fail.
In the end, both Edward and I were vindicated when Avon and Somerset finally cracked and agreed to settle Edward’s claim for damages in the sum of £10,000. Apparently, they did not have as much confidence in the truth of their Officers’ accounts as they had repeatedly asserted in first bringing the prosecution, then ‘white-washing’ Edward’s complaint, and then filing a robust and combative Defence to the civil proceedings – all at great public expense.
I will note here that Edward actually offered to settle his claim for considerably less money than £10,000 – if the payment of damages was to be accompanied by a formal, written apology from the Force; but Avon and Somerset declined that offer, preferring instead to pay my client more money simply so that they did not have to apologise him.
Frankly, this shows how institutional Police pride seems more important to many senior Officers than the responsible management of public funds – but in any event, Edward and I both agree that the way to look at this outcome was that whether they meant it or not, Avon and Somerset Police have given Edward 10,000 apologies – and in my opinion, given the appalling treatment that he suffered at the hands of their Officers, who behaved with both mendacity, brutality and quite possibly racial prejudice towards him on the day of the incident and afterwards – no more than he deserved.
If you have suffered from misconduct at the hands of arrogant, prejudiced or unscrupulous Officers– then turn to me for expert advice and assistance; or in other words – let me serve, respect and protect your civil rights.
A few weeks ago, in the context of the recent Casey Report, I blogged about the pros and cons of bringing a police complaint (in addition to a compensation claim), the conclusion being that the British public simply does not have the effective and independent police complaint system that it deserves.
I began that previous blog with a quotation from the ‘new broom’ at the Met – Police Commissioner Sir Mark Rowley – who had concluded that there were hundreds of people in his Police Force guilty of such ‘disgraceful’ behaviour that they deserved ejecting from the profession – however, as the case study which I will present today amply demonstrates, the pro- police bias of the complaint investigation system is such that many officers who should be at risk of losing their jobs still only end up facing low-grade misconduct charges which cannot result in dismissal. Thus does the system ‘let them off the hook’.
Ehab El-Masry’s case
(For the purposes of this blog, as it involves an ongoing misconduct case, I have changed the names of all parties including my client and the Police officer).
The incident in question happened on Christmas Day 2021 when Ehab El-Masry’s brother returned home and showed Ehab El-Masry a badge which he had found in the street, and which appeared to be a Metropolitan Police Officer’s badge (i.e a Warrant Card). Ehab’s brother, being a good citizen, then called the Police to report what he had found and to arrange for them to come and pick it up. Mr El-Masry thought no more about this.
Unbeknownst to Ehab, it appears that after his brother contacted the Police to report having found the officer’s badge, the Police became aggressively keen on immediately recovering it – notwithstanding that it was Christmas and Ehab’s brother was actually out visiting a friend and his family.
Mr El-Masry was home alone and half asleep when he heard knocking on the door at about 1am in the early hours of Boxing Day.
He then opened his front door to be confronted by three uniformed Police Officers, two male and one female – one of the male Officers being PC Lynch .
The Officers questioned Ehab as to whether he was his brother and when he explained that he wasn’t, one of the Officers threateningly said “We’re not going to wait for your brother all night, he needs to turn up within the next five minutes or he’ll be in trouble.”
Ehab was taken aback by the attitude of the Officers – correctly asserting that his brother had done a good deed by finding the badge and calling the Police. The Police were instead, bizarrely, acting as if his brother had stolen it.
By this point Mr El-Masry had phoned his brother, who confirmed that he had spoken earlier to the Police to report his finding of the badge, and he was surprised that they had now turned up at this time without notice. However, his brother told Ehab that he would immediately get a taxi and return home.
A short while later, Ehab’s brother did indeed arrive home by taxi. He collected the Police badge from the house and returned outside, where the group of Officers confronted him – and one of them grabbed Ehab’s brother stating that he was now under detention for the purposes of a search.
Ehab was shocked by the Officer’s aggressive and totally unnecessary manhandling of his brother and sought to protest – especially in light of the fact that his brother had a pre-existing injury (he had recently fractured his foot).
However, this only caused the Officers to turn their aggression upon Ehab as well and, almost unbelievably, this scene of two ‘good Samaritan’ brothers attempting to return a lost Warrant Card to the Police at Christmas, had now turned completely upside down – with the Officers using brutal force against Mr El-Masry and his brother as if they had been caught red-handed in the act of stealing, not attempting to return, the Warrant Card.
It was PC Lynch who attacked Ehab, my client, and fortunately body-worn video camera footage (BWV) uncontrovertibly demonstrates what happened next (despite the Officer’s attempt to frame his actions in very different terms afterwards) and that footage led the Professional Standards Unit of the MPS to reach the following findings –
That PC Lynch performed an unreasonable and unnecessary, and in fact excessive, neck/head lock upon Ehab
That Mr El-Masry was calm and not appearing to offer any level of aggression that could justify this
That PC Lynch ’s suggestion that he believed that Ehab was trying to grab the warrant card and steal it, is contradicted by what is shown on the BWV
That PC Lynch handcuffed Ehab El-Masry without any objective justification and even without any attempt to communicate with/explain his intentions to my client
That the BWV footage clearly shows Ehab shouting several times that he could not breathe whilst he was being restrained on the floor, but that PC Lynch did not give any consideration to this and continued with the application of handcuffs
That PC Lynch ’s suggestion that he was ‘monitoring’ my client’s breathing is not in any way supported by the footage and furthermore the Officer did not provide any reassurance to Ehab or even consider getting him up from the floor in order to reposition him, rather the Officer shouted at my client and pushed him down
That even after my client was in handcuffs, PC Lynch kept him restrained on the floor without giving any explanation as to why or what was happening, nor any consideration to our client’s welfare – for a period of some 7 minutes
That PC Lynch ’s actions were unnecessary and excessive, especially given the fact that the footage demonstrates that Ehab was not offering any resistance – and yet PC Lynch in his response to the complaint failed to accept that there was no resistance being offered to him and rather attempted to continue to justify his unlawful actions
That PC Lynch demonstrated a total lack of care and respect in the way in which he spoke to Mr El-Masry throughout the entire interaction and his ultimate response to my client’s complaints about breathing difficulties and pain was at first disinterest and then a sarcastic dismissal.
In Conclusion
Despite the seriousness of the above findings reached by the Complaint Investigator, PC Lynch was charged only with misconduct not gross misconduct, and hence whatever the outcome of the misconduct process, the officer is at no jeopardy of losing his job – for only a finding of gross misconduct can justify dismissal from the Force.
Ehab El-Masry is currently pursuing an appeal to the Independent Office of Police Conduct (IOPC) against this failure by Professional Standards to categorise PC Lynch ’s behaviour as gross misconduct – both in terms of the officer’s actions at the time of the incident and also, notably, in his response to the complaint investigation. The available facts demonstrate multiple failings of character on the part of PC Lynch which render him unsuitable to hold the honourable office of Police Constable, including a lack of remorse for his unlawful actions, an apparently mendacious twisting of the facts in order to justify those actions, and an arrogant, brutal and bullying use of force towards my client who was detained without explanation and made the victim of potentially life-endangering acts of assault/battery – being taken in a neck strangle hold and then held down upon the ground and thereby being prevented from breathing normally.
In light of those undisputable facts, my client feels that it is only right and proper that the panel who ultimately decide PC Lynch’s punishment should have the option available to them, under a charge of gross misconduct, of dismissing this Officer from the Force on the grounds of multiple breaches of the standards of professional behaviour in terms of use of force; discreditable conduct; duties and responsibilities; authority respect and courtesy and (in regards to PC Lynch ’s response to the Complaint Investigation itself) honesty and integrity.
Whether the IOPC will agree with our submissions remains to be seen, but experiences like this demonstrate why all too many people are left feeling that there is no real justice in the Police complaint system, and I am caused to reflect upon Baroness Casey’s recent statement:
“There are moments when I have looked at the cases with people I’ve listened to and I have wondered what exactly would constitute gross misconduct in order to get them out of the force.”
The dysfunctionality of the Police misconduct system is long-standing and multi-layered, and I feel it is the responsibility of those of us with direct knowledge of these problems to keep training the spotlight upon them, or else, frankly, nothing is going to change.
All names changed.
Update
I can report that although the IOPC did not uphold Ehab’s appeal, I am pleased to confirm that, after lengthy negotiations, the Metropolitan Police agreed to pay Ehab compensation of £15,180 plus legal fees – a settlement reflecting my client’s claim for wrongful arrest. You can read what happened here.
A Police Officer assaulting someone is bad enough; that same Officer asking his colleague to lose his body camera footage of the incident is sinister evidence of how many Officers still think they are above the law and, sadly, that is exactly what came to light in Birmingham Magistrates Court last week, at a Trial in which PC Neville Bridgewood was found guilty of assaulting my client.
The fact of this case are as follows.
On 26 September 2021, at approximately 7am, my client was returning home from a night out. He had been drinking. He got on a bus, but on arrival at the bus depot he could not find the money to pay his fare. A dispute occurred between my client and the bus driver which attracted the attention of officers at a nearby Police Station. No less than 6 Police officers boarded the bus, including PC Bridgewood.
Giving judgment at the trial, District Judge Wayne was heavily reliant on the body camera footage of the one officer (PC Elwell) who had uploaded/ preserved his video of the incident. The judge noted that despite the large number of officers present they were apparently unable to recall important details, but from the footage he noted-
PC Bridgewood spoke in a derogatory manner to my client, and made no attempt to calm the situation;
Police allegations that my client was behaving in an aggressive manner were not born out by the body-worn footage, and there were no grounds to arrest him;
My client did produce a £5 note so as to pay his fare;
My client then apologised to the bus driver;
Notwithstanding this, PC Bridgewood, without provocation or lawful cause, pushed my client to the floor, shouting at him “Fuck off home…”.
When my client asked the PC Bridgewood why he had done this to him, the officer replied “Because you’re a fucking arsehole.”
In giving his own evidence, PC Elwell admitted that after this incident he was approached by PC Bridgewood who, evidently mindful of the incriminating footage, said “Don’t get uploading that till after 30 days.” This was to all intents and purposes a request by Bridgewood that Elwell destroy the footage – because if body camera files are not ‘uploaded’ within 30 days, they are wiped over. However, Elwell had already uploaded the footage – to PC Bridgewood’s dismay.
There were 4 other Police Officers present (in addition to Elwell and Bridgewood) one of whose body worn camera apparently had an unknown fault, and all of whom apparently couldn’t recollect important details about the incident. It appears that throughout the trial all of the other Police officers were highly reluctant to comment as to the lawfulness of the use of force by their colleague (in a way that they presumably would not have been had my client been the Defendant).
In convicting PC Bridgewood, DJ Wayne found that the officer had lost his temper, resulting in an unlawful use of force – and that he had tried to make sure that the footage was not before the Court.
The case has now been adjourned for sentencing, whilst PC Bridgewood will also quite rightly face misconduct proceedings and I would expect him to be dismissed from the Force. In my view the Officer’s most heinous act was not the momentary loss of temper/descent of red mist which caused him to push my client to the floor and injure him, but the utterly disreputable and equally criminal attempt by the Officer to destroy the footage of that crime afterwards and thereby pervert the course of justice.
It is that sort of behaviour by Police Officers, rather than momentary loss of control or acts of aggression, which really destroys the faith that our communities have in those who are meant to police and protect them.
Evidently, some Officers still think that enforcing the law means being above the law. Whilst it is true that PC Bridgewood did not get away with this offence, the apparently casual way in which he asked his colleague to (in effect) delete evidence of PC Bridgewood’s criminal behaviour is very concerning, because the obvious conclusion to draw is that PC Bridgewood assumed that his colleague would not bat an eyelid at complying with this request. Had that footage indeed been destroyed then Bridgewood would almost certainly have walked free from Court – or, more likely, not even faced criminal charges in the first place.
There is a legitimate question to be raised from this as to how many Officers, with the assistance of equally corrupt colleagues who want to ‘protect’ them, are getting away with this sort of sinister abuse of power.
The Spirit of Justice is meant to be blind; but not because the body camera footage has been destroyed.
“You have to come to the conclusion there must be hundreds of people that shouldn’t be here, who should be thrown out. There must be hundreds who are behaving disgracefully, undermining our integrity and need ejecting.”
Sir Mark Rowley, Metropolitan Police Commissioner, October 2022
In the context of the recent damning Casey report regarding the state of health – or lack of it – of the Metropolitan Police’s complaints and misconduct system, and which occasioned the extremely frank comments of the Met Commissioner as cited above, I am sure that one of the questions which I am frequently asked as a specialist in claims against the Police is at the forefront of many people’s minds – i.e whether or not a victim of Police violence, unlawful arrest or other form of misconduct should pursue a formal complaint…
Whereas a damages claim can entitle a person to significant financial compensation for the wrong which has been done to them, a professional standards complaint cannot result in a compensation award but can lead to the officer or officers involved being found guilty of professional misconduct – and possibly even dismissed from the Police service (although I would stress that later outcome is a rare event indeed).
This is not an ‘either/or’ decision, of course, as many people do bring both a claim and a complaint against the officer who has wronged them – but there are a number of significant pros and cons effecting these two overlapping processes of justice which mean that in each and every case careful consideration must be given to whether it is right for the aggrieved individual to ‘bother’ with a complaint or not.
I will here outline some of the key considerations which go into that decision making process and will start by highlighting that whilst a wide variety of limitation dates apply to claims against the Police (see my recent blog post on that subject) in regards to complaints the Police have discretion to refuse to investigate any complaint which is brought more than 12 months after the event complained about.
The Pros & Cons of bringing a police complaint
Pros
Bringing a complaint is a means of ‘speaking truth to power’; it is through the exercise of our civil rights that we maintain them.
It is the route through which a police officer might be disciplined and/or dismissed and/or criminally prosecuted – often something which the victim of Police abuse of power ultimately wants far more than financial compensation.
It places on record your experience, which will be reflected in complaint statistics, properly highlighting the state of health of our Police service and public opinion of the same.
Your complaint may prove to be one of many which will be placed on the officer’s record over time. Multiple complaints against an individual officer – whether upheld or not – flag up that officer for scrutiny by his superiors (not always acted upon, however) and can assist other victims of misconduct in proving their cases against that officer, if he is indeed a serial abuser of power.
Complaint investigations can provide important evidence to assist subsequent civil compensation claims (e.g. officers’ accounts in writing or indeed in interview under criminal caution, in response to the complaint) and ensure the early and extensive preservation of all available video material (including crucial CCTV and body camera footage).
The complaint process can provide a useful way to ‘sound out’ the merits of a potential civil claim, by requiring the Police to provide an upfront response in writing to the incident.
If the complaint is upheld this can increase the pressure on the Police to agree to an early settlement of a related civil claim – though that is not always guaranteed.
Cons
The practical results of pursuing a Police complaint are often very far removed from the high- minded theory. The Casey report highlights how one Metropolitan officer who faced 11 misconduct allegations (including sexual harassment, assault, fraud and distribution of an explicit image of himself) remains a serving member of the Force. Since 2013, 1,809 Met officers/ staff had been involved in more than one misconduct case, but a mere 13 had actually been dismissed (0.71%). Note that these statistics only relate to complaints made against officers by other members of the Met (or their families) – and therefore do not include the far greater number of complaints made by the general public. However, they certainly map onto my own experience of representing thousands of citizens in Police complaints over the last three decades.
The Police complaint system has a high degree of (I am sure quite deliberate) delay and opaqueness built into it. Complainants are largely excluded from the investigatory process after initial contact and there is never a definite time-frame within which the complaint investigation must be concluded; it can literally drag on for years, adding further insult to the initial injury and leaving people with legitimate complaints feeling frustrated, belittled and disregarded. By way of example, consider the experiences of my clients Zac (whose complaint process lasted 5 years) and Sharon (whose complaint process lasted 4 years). In both of those cases, despite multiple failings being identified on the part of the offending officers, neither officer was ultimately dismissed.
The police still investigate the police in the vast majority of complaints and the approach of most police investigators, in my long experience, is to look for reasons not to uphold the complaint. Indeed, in my experience, complaint investigations often seem to be operations designed to shield the offending officer from criticism.
The fact that a complaint is being pursued can be, and very often is, used by the Police as an excuse not to respond to a person’s civil claim arising from the same incident – causing an eventual delay of months or even years to the resolution of that claim.
A decision to uphold a complaint is not binding on the police in respect of any subsequent civil claim (allowing them to continue to contest the claim if they see fit) but conversely a decision not to uphold a complaint (though also not binding on a civil court) can impact negatively on settlement of a related civil claim, being used by the Police to attempt to adversely influence a Judge and/or Jury against the Claimant/ complainant.
Bringing a complaint will require you (and potentially any witnesses you may have) to put detailed accounts ‘on the record’ in the form of statements and/or answers to Police questions without having the opportunity to first consider crucial Police disclosure, such as body camera footage and officers’ statements, as would happen in a civil claim.
The much- vaunted Independent Office for Police Conduct (IOPC) is in my experience all too often a paper tiger either unable or unwilling to either take the lead in conducting complaint investigations or, when an appeal lands on their doorstep, to overturn the findings of a biased and inadequate local Police complaint investigation. Without a truly independent and robust watchdog, the whole Police complaint system is generally flabby, inadequate, and unfit for purpose.
In the circumstances, my advice to clients is often not to incur the delay and likely disappointment of a complaint but instead to focus on bringing a civil claim, being the method by which my clients can have the type of true control over the justice process which is denied to them in the complaints system (in which they are at best often treated as no more than one witness amongst many). My advice in this regard is based on real world practicalities – because we simply do not have the effective and independent complaint system that we deserve.
That advice is not universal however; in certain circumstances it can be tactically appropriate to bring a complaint in order to ‘flush out’ the Police explanation for their actions ahead of putting pen to paper in the letter of claim. I also, of course, respect those many individuals who feel it is their civic duty to bring a complaint irrespective of the low likelihood of a positive outcome, whilst in other circumstances the misconduct is so heinous and/or obvious that a complaint is likely to result in a satisfactory finding (I stress that such cases are rarer than you would think however because of the complaint process failings which I have listed above).
The decision is ultimately yours; I will treat each case as unique and give you the best of my knowledge and experience as tailored for your particular circumstances – but the 14 points as set out above are the framework for that discussion.
If you have suffered Police misconduct, please reflect upon them, consider what outcome you are looking to achieve, and get in touch with me to discuss further. I look forward to hearing from you.
The disturbing video below shows an incident which occurred around midday on 4 December 2016 when my client Shaun Kennelly, then aged 19 years, was mowed down by an unmarked Volvo police car, being driven by PC Copland of Nottinghamshire Police.
Shaun had been spotted by the Police whilst driving in a Rover motor car in a dangerous manner; PC Copland had pursued the Rover (with his blue lights and sirens activated) and then, when the Rover had broken down near a traffic island, Shaun had fled from the vehicle, running along the carriageway.
It can clearly be seen on the video that PC Copland chose to continue his pursuit of Shaun by driving his own car at high speed, and that pursuit came to an end when PC Copland not only drove into, but over Shaun’s body, as the teenager attempted to reach the kerb.Watch what happened here:
As you can see, the front off-side wheel of the Volvo caught Shaun’s lower leg causing him to fall to the ground, face down. The wheel then ran over his upper body, including his torso, right shoulder and right arm, then it ran over the right side of Shaun’s head and mounted the pavement before coming to a halt.
Shaun can only remember part of what immediately followed as the shock and force of a car been driven over his head had rendered him semi-conscious; he can, however, remember being dragged out by his legs from underneath the car by a police officer.
PC Copland appears to have given little or no consideration to the obvious risk that Shaun might have suffered spinal injuries which could be significantly worsened by his being quickly and roughly moved; instead, having dragged Shaun out from under the car, he almost immediately set to handcuffing the young man’s hands behind his back. Shaun was then propped up into a sitting position, against the wheel of the Volvo.
It is my opinion that, notwithstanding Shaun’s own reckless behaviour, and the offence of dangerous driving he had committed, PC Copland’s pursuit of Shaun in the car was more reckless and more dangerous, risking Shaun’s death by the manner of the pursuit. The officer then displayed an uncaring attitude towards Shaun – treating him as a ‘prisoner’ when he needed first to be treated as a patient, just having had a police car roll over not only his body, but also his head.
The Police are fully entitled to use reasonable force to apprehend those suspected of a crime, but if we were to look the other way when Officers use force that is unnecessary/ disproportionate to the circumstances, then the rule of law is endangered, and it is essential that we at least have a mechanism in our civil justice system to rectify and control such abuses of power by the Police – especially if the criminal justice system is not prepared to do so.
Shaun was taken by ambulance to a nearby hospital for treatment. He was in pain all over his body, especially to his legs and was diagnosed with a fractured right kneecap, an injury to his left Achilles tendon, cuts to both hips, a bruised pelvis, a cut to his left ankle, as well as a haematoma and cuts and bruising to his right eye socket and a soft tissue injury to his left shoulder. Frankly, I think his injuries could have been far more severe. Shaun was placed in a full- length plaster cast to his right leg and sent back to Police custody to be interviewed.
It is telling that the hospital records indicate that when the Police brought Shaun in for treatment, they were telling the emergency doctors that Shaun’s injuries had been caused by him first hitting the bus; however, those same records record Shaun’s protests of the truth of the matter – that the Police car had simply run him down.
Shaun was subsequently convicted of dangerous driving and driving with no insurance. He was sentenced to 12 months in custody and disqualified for 2 years and 7 months.
Subsequently, the Independent Police Complaints Commission (IPCC) reviewed the incident and recommended that it be referred to the Crown Prosecution Service; the CPS were sufficiently concerned by what they saw to cause PC Copland to be charged with dangerous driving, and the matter proceeded to trial on 9 January 2019.
However, the presiding judge at Leicester Crown Court, His Honour Judge Dean, accepted the officer’s submission that he had “no case to answer” halfway through the trial, and directed the jury to deliver a verdict of not guilty on the basis that “no jury, properly directed, could reach the conclusion that he [PC Copland] was guilty of the offence [Dangerous Driving]”
PC Copland denied any intention to deliberately collide with Shaun, stating that his intention was simply to get ahead of Shaun and “block” his path, and then get out of the car to detain him on foot; he claimed not to have heard, saw or felt any impact between his vehicle and Shaun’s body, and claimed to have thought that Shaun had collided with the back of the passing bus, and that he had then fallen to the ground as the officer’s vehicle “came alongside him”. I would describe this as dramatically different from the images captured by the bus CCTV, but in any event the only sanction PC Copland was ever to face for this incident was the very minor disciplinary black mark of “management action.”
We should pause for thought here to note, once again, how important the video evidence produced by modern ‘surveillance society’ is to cases of this nature; if we didn’t have the bus camera CCTV – would anyone have believed the convicted criminal who said a Police officer had recklessly run him over, or would the Police account of Shaun colliding with the bus have been preferred?
Following the conclusion of the criminal process, Nottinghamshire Police decided that this was not a matter of ‘conduct’ but only rather ‘performance’ and that the only sanction PC Copland should face would be “management action in the form of a reflective discussion with the Chief Constable, which included reviewing the CCTV footage” (probably over some coffee and a biscuit, might I dare add?). The Independent Office of Police Conduct (IOPC) did not challenge this, notwithstanding that the original investigation conducted into this incident by its predecessor organisation (the IPCC) had concluded both that PC Copland had a case to answer for gross misconduct and that he might have committed a criminal offence, by the manner of his driving.
Civil Proceedings under the Criminal Justice Act 2003
In cases such as this – injuries inflicted upon individuals subsequently convicted of a criminal offence – the Police do not only have the sympathy of the criminal courts, and the fact that the law has always permitted any reasonable use of force in effecting a suspect’s arrest, they also have the additional (and possibly inadvertent) protection afforded by another piece of legislation – namely the Criminal Justice Act 2003.
Section 329 of the CJA 2003 prevents anyone who has been convicted of a criminal offence from bringing a personal injury claim in respect of force used against them at the time of their arrest unless the force used was not merely unreasonable but in fact “grossly disproportionate”.
The Court can only grant permission for claims such as Shaun’s to be brought, therefore, where there is evidence of grossly disproportionate force or (even more rarely) evidence that the person using the force against did not honestly believe it was necessary.
Prior to 2003, the existing law as to use of force by Police officers affecting arrests was that set out in Section 3 of the Criminal Law Act 1967 and Section 117 of the Police and Criminal Evidence Act 1984, which provides that “reasonable” force may be used. I am not the only lawyer to have observed that Parliament almost certainly did not intend for S.3 CJA and S.117 PACE to be ‘replaced’ by the higher bar of “any force that is not grossly disproportionate” when it came to Police officers exercising powers of detention/ arrest, but that was what in fact has occurred in practice.
The legislation in question arose from the famous 1999 case of Tony Martin, who had been convicted of murder, later reduced to manslaughter, for shooting dead a 16 year old burglar; Martin was subsequently unsuccessfully sued by the young man’s accomplice, whom he had also shot during the incident. The premise behind the Criminal Justice Act was therefore to reassure the public that people defending themselves or their property from attack would have greater security against being sued by criminals in the event that they misjudged the force they should use in the heat of the moment. In effect, however, it is not private citizens who have time and time again called upon the protection of the CJA 2003 to frustrate claims for compensation arising from life-changing injuries inflicted upon individuals subsequently convicted of criminal offences, but rather the Chief Constables of England and Wales.
This was recognised by the Court of Appeal in the leading case of Adorian v The Commissioner of the Police of the Metropolis [2009] EWCA Civ 18, wherein, at paragraphs 6 and 7 of the judgment, the Court noted that S.329 “…has nothing on the face of it to do with policing” and that it had seemingly been enacted by politicians who had in mind “…what one can call the Tony Martin situation – a sudden encounter with a crime…it gives the individual a defence of honest, even if unreasonable, belief in the need for his or her act; and it forfeits the defence only if the act was grossly disproportionate. There is nothing on the face of the section or in its shoulder-note which manifests an intention to afford the police a novel protection from claims by offenders for objectively unreasonable or unnecessarily violent arrests.”
However, the Court of Appeal noted, that in the years since the legislation came into force in January 2004, it had only ever been Police defendants who had relied upon this section, cautioning “The consequences should not go unnoticed” and rightly warning that we should not compromise “the principle painstakingly established in the course of two centuries and more, and fundamental to the civil rights enjoyed by the people of this country – that an arrest must be objectively justified and that no more force may be used in effecting it than is reasonably necessary…Conscious of art. IX of the Bill of Rights 1689, we say only that there is no indication that Parliament was aware, much less intended, that what it was enacting would have this effect.”
In the years since then, this defence designed to help the ordinary person who finds themselves in over his or her head in a frightening situation where danger has sought them out, has to my knowledge remained in practice the exclusive province of the Police professional who is actively seeking to arrest somebody – but seeks to avoid accountability for ‘going over the top’. The polite words and sentiments of the Court of Appeal, and invocation of the old ghosts of British liberty and civil rights, have not dissuaded Chief Constables from regularly relying on S.329 to prevent people in such circumstances bringing a claim – creating another hurdle which they need to clear as well as the fundamental one of establishing liability – the goalposts are moved further away; it is a deliberately uneven playing field – and that is exactly what the Police sought to do in Shaun’s case as well.
People who are convicted of a criminal offence are justly punished for that offence by the sentence they receive – and the social stigma which accompanies it; they should not in addition be rendered ‘second class citizens’ with less basic constitutional rights than other people, by means of the inadvertent effects of a statute which had as its primary focus an intention to protect ordinary citizens, rather than an intention to grant ‘immunity’ from civil claims to Police officers who use objectively unreasonable levels of force upon their detainees.
Despite the strenuous opposition of Nottinghamshire Police in this case, I was successful in obtaining permission for Shaun to bring his claim at a hearing at Nottingham County Court in December 2020, and thereafter the Chief Constable rapidly moved to settle the claim for a five figure damages sum. This settlement was reflective of the fact that Shaun had got off rather lightly in terms of the long term effects of his injuries, which could have been a lot worse – but also reflective of the fact that once the artificial barrier of S.329 had been removed the Chief Constable and his officer had no place to hide from the light of full court proceedings: this was without question a grossly disproportionate use of Police force, which could have ended a man’s life in slightly different circumstances.
This week’s blog post concerns incompetence and overreach of powers by West Midlands Police in the form of their unlawful arrest of my client Asif Hussain.
Several days prior to the index incident Asif had attended his mother’s house, where his brothers and nephew reside as well. An ambulance was called for my client’s elderly mother as she was unwell, and an argument occurred between Asif and his brothers regarding their treatment of his mother. My client’s nephew then assaulted him and police officers attended, however Asif reasonably declined to make a criminal complaint against his nephew.
On 19 November 2021 at approximately 10:35 am Asif was asleep at his own home in the Sandwell area of Birmingham. Two officers from West Midlands Police, PC Weaver and PC Pugh, attended. The officers proceeded to knock on the front door, however this did not awaken Asif. On not receiving a response the officers proceeded to peer in through the front windows, attracting the attention of passers-by. The officers then returned to the front door where PC Pugh began to bang on the door and shouted Asif’s name through the letterbox.
PC Weaver then climbed over the garden gate, damaging a fence panel in the process, and entered the rear garden of my client’s house. The officer then looked through a rear glass door before trying the handle and discovering it was locked. All of this was captured by my client’s home CCTV security system.
Asif’s son now woke him and informed him of the officers’ presence. Asif opened the front door and PC Pugh immediately stepped, uninvited, inside the property. Asif’s son recorded the subsequent conversation between his father and PC Pugh on his mobile phone.
PC Pugh said that he needed to speak with Asif, who replied that they could speak where they were, however PC Pugh refused and insisted on coming further into the premises. Asif declined to allow PC Pugh further entry into the house and asked if he was under arrest. Asif assumed that the officers had attended to arrest him in relation to the previous incident with his nephew, and certain of his own innocence, and not wanting to make a fuss, put on his shoes and said to PC Pugh to “I know what you’re here for … just do the honours”. Asif then voluntarily stepped out onto the doorstep of the house, whereupon PC Pugh took hold of his right wrist and placed him in handcuffs to the front, which were applied extremely tightly. Over and above this discomfort however, Asif was concerned and embarrassed that his neighbours might see him in handcuffs, and so requested that his son place a coat over his wrists to conceal the handcuffs. He felt quite correctly felt that this use of force was grossly unnecessary, given his entirely compliant behaviour and demeanour.
Whilst this was occurring PC Weaver tried but failed to get back over the premises’ garden gate. Instead, he climbed the fence and entered the garden of a neighbouring property, exiting through their gate and joining my client and PC Pugh at the front of the house.
PC Pugh and PC Weaver then escorted Asif over the road, as they did so PC Pugh told Asif “We’ll jump in the van and then we’ll have a conversation”. Asif was placed into the rear seating area of the police van, accompanied by the two officers who closed the door of the van, apparently to prevent Asif’s son from continuing to record their interactions.
PC Weaver only now informed Asif that he had been arrested for malicious communications in relation to a card he had allegedly sent to his brother. Asif asked PC Weaver to remove the handcuffs as they were too tight, but this was (quite typically) refused.
Asif was then conveyed to Oldbury Custody Suite. After approximately 30 minutes he was brought before the custody sergeant, PS Bains, and only now were his handcuffs finally removed. As recorded on Asif’s custody record PC Weaver gave the circumstances of arrest as:
IP, Shahid HUSSAIN has received a thanks card from the PIC (his brother) which states ‘2 murderers – it was really kind of you to make our mother suffer in pain with severe kidney infection – you have blood on your hands’.
PS Bains then took PC Pugh to one side and spoke to him out of my client’s hearing. After a few minutes PS Bains and PC Pugh returned, and PS Bains informed Asif that he could not hold him. PS Bains then endorsed Asif’s custody record with the following, to confirm that as the Custody Sergeant he was exercising his discretion to refuse to detain Asif:
Reason: From the circumstances I have been given from arresting officers I do not believe the offence of malicious communications has been made out. Therefore detention has been refused.
Asif was then released, although he was now stranded at the Police station and so forced to call his family to come and collect him. Sometime later he received a call from an officer at Perry Barr Police Station informing him that there would be no further action in respect of the allegation.
As a result of the use of handcuffs Asif was left with marks to his wrists that remained visible and painful for several days afterwards. He attended his GP who noted his injuries and that he had potentially suffered nerve damage. The GP recommended that Asif take painkillers and referred him to physiotherapy.
Of course, the effects of this incident upon Asif were not merely confined to the physical pain or temporary inconvenience – he felt humiliated and embarrassed and became deeply concerned about the impact that the incident might have upon his reputation in the local community, as well as suffering anxiety whenever visitors knocked on the door, in case they were once again officers coming to unlawfully arrest him. Asif understandably thought that neighbours might assume he was a ‘hardcore criminal’ given the length to which the over- zealous Police Officers had gone to gain entry to his property, including climbing over the garden fence.
The offence for which my client was purportedly arrested – Malicious Communications – is defined by the section 1 (1) of the Malicious Communications Act 1988 as follows-
1 Offence of sending letters etc. with intent to cause distress or anxiety.
(1)Any person who sends to another person—
(a)a [letter, electronic communication or article of any description] which conveys—
(i)a message which is indecent or grossly offensive;
(ii)a threat; or
(iii)information which is false and known or believed to be false by the sender; or
(b)any [article or electronic communication] which is, in whole or part, of an indecent or grossly offensive nature,
is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.
I would assume that it is obvious to anyone reading that definition of the offence, as it clearly was to Sergeant Bains, and comparing it to the ‘offending card’ that the statement in the card was neither threatening, indecent nor grossly offensive and PC Pugh and PC Weaver should have known this from the outset – however they appear to have given as little regard to this fact as they did to the question of whether it was really necessary to subject my client to painful imprisonment in handcuffs. The officers have focused only on the act of exercising their power and, crucially, not on its lawful justification. Perhaps the officers’ suspicion of the offence was honest – but it certainly wasn’t objectively reasonable. There also appears to have been a total lack of consideration by the Police as to whether the incident could have been dealt with by means of my client being invited to attend a non-custodial interview. This catalogue of failings led to the arrest of an innocent man.
The total period of Asif’s unlawful detention was (fortunately) only 50 minutes, but taking into account the aggravating features which I have highlighted above, being the adverse physical and mental impact upon Asif, I had no hesitation in rejecting West Midlands Police’s initial offer of settlement in the sum of £1,500 and have recently settled the claim for an agreed damages payment of £5,000 plus legal costs.
The default position of Custody Sergeants, in their role as ‘gatekeepers’ of the Police station is to agree with the opinion of their brother officers, and as a result the vast majority of arrestees become detainees following processing at the custody desk; the rare occasions when this does not occur are therefore clear ‘red flags’ that something has gone wrong, and if you have ever been in that position then I would urge you to contact me for review and advice. If a custody sergeant is rapidly showing a person the exit door rather than the cell door, the decision making and actions of the arresting officers deserve to be closely scrutinised and there will be strong prospects of a successful claim.
One question which I am frequently asked as a specialist in claims against the Police is the following-
When is it too late to sue the Police?
The answer to that question is highly dependent on the nature of the proposed claim i.e. what is the wrong that you are saying the Police have done to you?
Generally speaking, claims against the Police are usually brought as ‘torts’ i.e. infringements of a person’s civil rights as defined by the age old, foundational common law of England and Wales, built upon by centuries of jurisprudence and case law and/or as claims under the newer layer of citizens’ rights and protections laid down by modern legislation such as the Human Rights Act 1998, Equality Act 2010 and the Data Protection Act 2018.
The main time limits for bringing a civil claim (‘bringing’ in this sense defined as being the last date on which a County Court or High Court action can be commenced) are as follows:-
Claims brought under the common law – 6 years from the adverse event.
Claims under the Data Protection Act – 6 years from the adverse event.
Claims for breach of the Human Rights Act – 1 year from the adverse event.
Claims under the Equality Act – 6 months from the adverse event.
The ‘adverse event’ from which the period of limitation runs is generally a matter of common sense – for example, the date that you were assaulted, or the date that you were wrongfully arrested. Sometimes however the expertise of a lawyer is required to identify the relevant date – for example, the limitation date in a claim for malicious prosecution is not the 6th anniversary of the commencement of the prosecution i.e. when you are charged but rather the 6th anniversary of the prosecution being terminated in your favour i.e. the date on which the prosecution is discontinued or you are acquitted at trial.
Further complexities in terms of defining the limitation ‘anniversary’ arise in cases which involve prolonged abuse, negligence or misfeasance over an extended period of time and there once again careful examination of the facts and evidence by a specialist solicitor is essential.
Special Rules for Children and Personal Injury Claimants
Other, very important, exceptions to the general rules as to limitation periods are as follows:-
Under the terms of the Limitation Act 1980 (which governs limitation rules for common law rights in England and Wales i.e. tort law), the limitation period does not commence in the case of a child who has been injured or otherwise wronged until their 18th birthday. Likewise, the limitation period can be disapplied or suspended in the case of people lacking mental capacity.
Furthermore, and very importantly, the 6 year limitation period for common law claims is reduced to only 3 years if the claim includes personal injury – as of course the majority of claims against the Police do, whether such injury is physical or mental.
What the Limitation Act takes away with one hand, however, it simultaneously grants with the other – because any personal injury tort claim, whilst being subject to a shorter limitation period on the face of it (3 years as opposed to the 6 years you would have if you were claiming for say property damage only or ‘pure’ loss of liberty without physical or psychological injury) is also subject to Section 33 of the Limitation Act, which grants the Court discretion to allow the claim to be brought years – and potentially even decades – ‘late’ provided there is a good reason for this and it is in the interests of justice to allow the claim to proceed. The relevant section of the Act provides as follows-
33 Discretionary exclusion of time limit for actions in respect of personal injuries or death.
(1)If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—
(a)the provisions of section 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b)any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
…
(3)In acting under this section the court shall have regard to all the circumstances of the case and in particular to—
(a)the length of, and the reasons for, the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 or (as the case may be) by section 12;
(c)the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;
(d)the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
This is in effect our justice system’s acknowledgment of the significance of personal injury claims as being damage caused to the core of a person’s being as opposed to merely their property or other external possessions/conveniences. In effect the Court, through the mechanism of Section 33, is saying that personal injury claims are so important and potentially so valuable that they should be brought within 3 years so that both parties to the litigation know what they are facing and can fairly and properly present their cases in a timely manner – but if, however, there is a good reason why the Claimant has not acted within 3 years then discretion can be granted for that claim to be brought well after the expiry of the 3rd anniversary of the adverse event.
It should be immediately obvious that one such good reason to ‘excuse’ delay relates directly to the effect which the injury has had in psychological terms upon the Claimant. In many cases the delay in a person bringing a claim arises from the very harm and shame that they have suffered as a result of the assault or other abuse of power perpetrated upon them. It is only right, therefore, that the doors of Court remain open for such people to be able to argue their case and to present arguments as to why their claim should not be automatically struck out through mere expiry of time.
In a similar vein to Section 33 of the Limitation Act, the Human Rights Act provides at Section 7 (5)(b) that the Court can allow proceedings to be brought for Human Rights infringements well after the ‘basic’ 1 year limit provided that the Court considers such an extension “equitable having regard to all the circumstances”. In any such exercise, similar factors to those discussed above will apply.
Limitation Law: A Case Study
A recent example of the complex interactions of limitation legislation in practice is Mr Justice Johnson’s Judgment in TVZ v Manchester City Football Club[2022] EWHC 7 (QB), in which rulings were made that sexual abuse claims brought by the victims of football coach Barry Bennell were not ‘out of time’ in principle, despite being brought around 35 years after the events, and that S.33 discretion to proceed would have been granted to the Claimants but for a separate point of law relating to Man City’s liability for Bennell’s actions, as they argued that he was not employed by the club at the relevant time (1980- 85), and it was that uncertainty as to Bennell’s relationship with City which ultimately defeated the claims.
Cited with approval in the TVZ judgment are the principles expounded by Sir Terence Etherton MR in Carroll v Chief Constable of Greater Manchester Police[2017] EWCA Civ 1992 – namely, that the essence of the proper exercise of judicial discretion under Section 33 of the Limitation Act 1980 is a test of the ‘balance of prejudice’ and the burden is on the Claimant to show that his or her prejudice in not being allowed to pursue the claim would outweigh the prejudice caused to the Defendant. Sir Terence observed that this burden on the Claimant is “not necessarily a heavy one” and furthermore, that, whilst the ultimate burden is on the Claimant to show that it would be inequitable to disapply the statute, the burden in showing that the evidence adduced by the Defendant is likely to be less cogent because of delay is on the Defendant.
The Limitation Act is designed to protect Defendants from the injustice of having to fight ‘stale claims’ especially when any witnesses the Defendant might have been able to rely upon are not available, or have no recollection of events and/or there are no documents to assist the court in deciding what was done or not done and why. Sir Terence states “It is therefore particularly relevant whether and to what extent the Defendant’s ability to defend the claim has been prejudiced by the lapse of time because of the absence of relevant witnesses and documents……subject to considerations of proportionality …… the Defendant only deserves to have the obligation to pay due damages removed if the passage of time has significantly diminished the opportunity to defend the claim on liability or amount……” (6-7).
In the Carroll judgment Sir Terence Etherton further highlights that proportionality is material to the exercise of S.33 discretion and indicates that a claim that has strong prospects of success and is likely to give rise to substantial damages is one in which the court should lean towards granting permission to proceed.
There is also of note, as highlighted in para 195 of the TVZ judgment, the fact that sometimes delay can improve the evidence in relation to quantum i.e. “If these claims had been brought in time, then it would have been necessary to make a prognosis, forecasting how the abuse would impact on the Claimant’s future lives. A consequence of the delay is that there is a much greater retrospective component to the assessment – it is possible to look back over 35 years of lived experiences (with, in some cases, documentary support) to see how, in fact, the abuse had an impact.”
I am currently fighting a case on behalf of a client who did not approach me until almost 19 years after she suffered abuse from a Lancashire Police officer who after arresting her, went on to seduce and in fact father a child upon her, all whilst she remained under criminal investigation. The officer’s abuse of my client caused her significant psychological harm, and indeed, rendered her the mother of a young child to whom she has had to devote a considerable proportion of her energies over the following 18 years in bringing to adulthood. Furthermore, although my client did not instigate a claim at the time of these events (2003/4) she did lodge a complaint with Lancashire Constabulary and the (then) Police watchdog the IPCC, which concluded that the officer had done wrong but which resulted only in half-baked assurances that the officer in question would be ‘prevented from attending women’s houses’ for the next 3 years. This is quite a time-capsule from another age, as today an officer committing such misdeeds would almost certainly face prison himself.
In other words, this is a claim in which there should exist written records from 2003/4 which provide clear evidence of what occurred, there is no doubt that the officer in question was employed by the Force AND there is a good reason for my client’s delay in bringing her civil action. My client has manifestly suffered psychological injury as a result of the outrageous abuse of power which she suffered, which has affected her self-esteem, confidence and ability to trust those in authority. Her delay in bringing this claim is therefore inextricably linked with the harm she has suffered.
Also of relevance to her claim is the observation of Lord Brown in A v Hoare [2008] UKHL 6 (paragraph 86) in which he favourably contrasted (for the purposes of disapplying the limitation period) a case where “A complaint has been made and recorded, and …… the accused has been convicted of the abuse complained of” with “a complaint [that] comes out of the blue with no apparent support for it……”
Navigating the Maze of Limitation Law
I have not attempted in this blog post to touch upon all of the different issues which can affect limitation periods and a person’s right to bring civil proceedings in England and Wales – indeed any attempt to do so would probably render this essay unreadable and/or counterproductive. There are very many overlapping claims in actions against the Police, which may well be operating under different limitation rules and have different caveats and exceptions applying to them, as I have briefly outlined above.
What is essential however is that people understand two things:-
The primary right to claim under the Human Rights Act expires within a single year; very many claims for personal injury will be time barred after 3 years and therefore it is essential that you act quickly in seeking legal advice if you have suffered a wrong at the hands of the Police and generally within those time frames;
However, even if you are beyond the 3rd anniversary of the incident – perhaps even several decades beyond it – it is never too late to seek expert advice from a specialist in actions against the Police such as myself.
So, in other words, act quickly in seeking to bring your claim – but never think that it must be too late, because in the right circumstances and with the right arguments, the right lawyer can find you a path through the maze of limitation, even many years after the event.
This is the story of my client Sharon who was subjected to a terrifying abuse of power when a Nottinghamshire Police Officer took up the side of a Bailiff in a minor dispute and through his aggression and arrogance escalated the event into what was, frankly, a home invasion.
Sadly, as Sharon was to learn, trauma caused by a Police abuse of power is not confined to a single day and for many years afterwards, Sharon was forced to suffer further reminders of the event, and added insult to injury, as the Officer involved in this incident went through an apparently never-ending series of Misconduct Hearings and eventually escaped with his career intact.
In the end however, justice was done through the terms of a highly significant financial settlement which I secured on Sharon’s behalf from the Police, as I will recount in this week’s blog. It is a story about the power of perseverance.
“Come On In And Help Yourself To Whatever”
The incident in question occurred on 24 April 2017. Sharon was at home alone in her house in Nottingham when she received a visit from a bailiff (High Court Enforcement Officer) who stated that he had come to collect a debt relating to a Penalty Notice.
Sharon initially panicked, as she had no means to pay and denied who she was. The sad background to her financial distress was that a business venture which she had entered into with her sister to open an Afro-Caribbean restaurant the year before had not succeeded, and Sharon had fallen into arrears with her mortgage and council tax. She had resorted to having to borrow money from friends and family and it was a very difficult and stressful time for her.
Sharon refused to allow the bailiff to enter her house – and was entirely within her rights to do so, as the debt which the bailiff was seeking to enforce did not give him a power to force entry to the house against the occupant’s wishes. However, Sharon’s car was parked up outside the house and so the bailiff clamped it. She did also offer him an old TV and computer but he said he wasn’t interested in taking these things. In a state of distress, Sharon phoned her auntie for advice.
Shortly afterwards Sharon’s auntie and male cousin arrived at the house and Sharon saw them talking to the bailiff and went outside to join them.
The bailiff explained that the debt Sharon owed was about £400. As Sharon did not have the means to pay she was content to allow her car, which was worth about £500, to be seized and she therefore began to remove personal items from her car and take them into the house.
The bailiff announced that a recovery truck was now on its way. At around this time, Sharon’s adult son also arrived (with some washing for his mum to do!)
Whilst allowing the bailiff to take possession of the car (which he seemed content with) Sharon was careful to maintain her householder’s right to refuse the bailiff entry into her home and was therefore careful whilst making trips between her car and the house with her possessions not to leave her door unlocked/open. The bailiff seemed to fully understand that Sharon was refusing him entry into the house itself, and did not attempt to press this point.
Time passed and the situation was calm, but then suddenly the bailiff began to made allegations that a parcel had been removed from his own car, which was parked nearby. Sharon’s family members – including her auntie, cousin and son were all still present outside the house at this time.
The bailiff then accused Sharon’s son of ‘keying’ his car, which had a scratch on the side.
Sharon’s son was angered by these accusations and Sharon tried to calm the situation down. She encouraged her son and male cousin to go home so as to de-escalate the situation – as she could now hear the bailiff on the phone to the Police and she was concerned that racial stereotyping might cause any Police Officers called to the scene to ‘zone in’ on the two young black men who were present. She was concerned that the Officers would ‘arrest first and ask questions later’. The lads therefore followed her advice and walked away, in the direction of some local shops. They emphatically did not go inside Sharon’s house, and the bailiff witnessed this.
Sharon now went back into her house, whilst her auntie remained outside talking to the bailiff.
Sometime later a Police car arrived.
Sharon came back outside the house and was confronted by Police Sergeant Flint, who was immediately aggressive towards her. He demanded that she allow the bailiff entry into her home so that he could ‘do his job’. Sharon stood her ground, knowing that the Officer had no power to force her to do this – and furthermore pointed out that arrangements were now in place for her vehicle to be seized. Sergeant Flint was not prepared to give up however. He now stated that the bailiff had reported a parcel stolen from his car and that he suspected it was in Sharon’s house. He threatened to ‘kick in’ Sharon’s front door if she didn’t open it for him willingly.
A second Officer (PC Elliot) now also arrived, and the Officers walked through the side gate to gain entry to the back garden of Sharon’s property and PS Flint attempted to force open the (locked) back door. Once again PS Flint threatened to ‘put through’ the door if Sharon did not immediately unlock it.
Scared and intimidated by the level of aggression from these two male Officers and concerned that Sergeant Flint would carry through his threat and then leave her with a broken door that she would not be able to afford to fix, Sharon agreed, under duress, to let the Officers (although not the bailiff) into her house.
Accordingly, she returned with the Officers to the front of her property and unlocked the front door.
Both Officers entered Sharon’s house and Sharon followed them. She was determined not to allow the bailiff entry and so closed and locked the door behind her.
However, PS Flint continued his bullying and aggression towards Sharon – now he had got what he wanted, entry into Sharon’s house, he accused Sharon of ‘imprisoning’ him and his colleague and demanded that she unlock the front door. Trying to avoid unnecessary trouble, Sharon acquiesced, but kept the key in her hand.
Unfortunately, PS Flint was still not satisfied and continued his animus towards Sharon. He now demanded that she surrender the key to her house to him, threatening her with arrest if she did not.
Sharon walked into her living room, refusing to give the Officer her key but pointing out that the door was unlocked.
Sergeant Flint then threatened that he would ‘lock up’ Sharon’s son, only increasing her distress and upset.
PS Flint then started to advance towards Sharon in a threatening way, causing her to scream, step backwards, lose her balance and fall onto the sofa. She turned her body away from the Officers in a protective manner, curling up into a ball on her knees, half on and half off the sofa.
Both of the Officers now started grabbing and pulling Sharon’s arms and it was clear that PS Flint was intent on removing the keys from Sharon’s hand.
Matters then escalated even more sickeningly as Sharon felt several blows to the back of her head which felt like punches; she was unable to see which of the Officers delivered these blows.
Understandably, Sharon couldn’t believe what was happening to her and was screaming for help. PS Flint then demanded “Give me your keys or I’ll spray you”. A fearful glance told Sharon that the Officer was not just making an idle threat, as he was holding his CS incapacitant spray cannister at the ready and Sharon, terrified, closed her eyes and put her head down.
Thankfully, PS Flint did not discharge the weapon, but he and his colleague continued to pull Sharon’s arms away from her body and eventually overpowered her, with Sergeant Flint announcing, in a terrible travesty of the truth, that Sharon was under arrest for ‘breach of the peace’.
The two men now forced Sharon to lie on her front on the living room floor with her arms behind her body; then they prised the keys out of her hand and handcuffed her tightly with her hands behind her back. Sharon could immediately feel the handcuffs cutting into her wrists.
Sharon later recounted to me how these few minutes were the most frightening she had ever experienced in her life.
With Sharon now in handcuffs, PS Flint returned to the front door of the house, opened it and invited the bailiff in with words to the effect of “Come on in and help yourself to whatever”.
It seemed that as far as Sergeant Flint was concerned, both Sharon and her home were now in his possession and control and Sharon felt disgusted and degraded by the bailiff almost literally trampling all over her rights and privacy. She heard the bailiff go upstairs and then saw him come back downstairs, go into the kitchen and start opening drawers. She was in a state of utter shock.
The bailiff then returned announcing that there was ‘nothing worth taking’ and left the house.
Finally, after about 10 minutes the Officers released Sharon from the handcuffs. She had felt like a prisoner the whole time. She had cuts and bruises and weal marks on both of her wrists and her right wrist and hand had now begun to swell up.
The Officers and the bailiff then departed, without any attempted explanation for what had happened, leaving Sharon utterly confused and humiliated. She burst into tears and then began to feel so unwell that she was concerned, as she had a history of high blood pressure, that she might be suffering a stroke. Her sister drove her straight to see her GP, and whilst she was in the waiting room, Sharon’s sister had to force a ring off her right hand because her finger had become so swollen.
The Misconduct Merry-Go Round
The actions of PS Flint and his colleague had been so outrageous that in the aftermath Sharon was left wondering whether they were actually real Officers or rather agents of the bailiff company. She contacted Nottinghamshire Professional Standard’s Department (PSD) to make a complaint.
However, it took two months before Officers from PSD came to visit Sharon and take details of what had happened. She subsequently had to attend the Police Station in July 2017 to give a full statement and found recounting the whole incident very upsetting.
Sharon quite reasonably questioned why the Police were only treating what had occurred as a ‘disciplinary’ issue. From her point of view – if PS Flint and his colleague had not been wearing uniforms they would simply face arrest and criminal charges for what they had done.
The incident had shattered Sharon’s whole confidence in the Police. She felt that her home had been violated – that she had lost her ‘safe haven’ – because of what the Officers had done. She became extremely nervous whenever she heard an unexpected knock on the door.
In December 2017, some 8 months after the incident, Sharon finally received an Investigation Report from Nottinghamshire PSD. This report contained further traumatic details that Sharon had not previously been aware of – for example PS Flint describing Sharon as ‘a fucking loony’ to the bailiff.
Although the report upheld Sharon’s complaints in many respects, its conclusion was just that both Officers should attend a misconduct meeting and undergo ‘rehabilitation’. I.E. that they had not committed gross misconduct, such as to justify a sanction of dismissal. Sharon felt such an outcome to be totally inadequate – if she had invaded the Officers’ homes and assaulted them as they had done to her, she would fully expect to have been arrested and prosecuted. She did not believe that PS Flint should be allowed to continue as a front-line Officer, fearing that he would victimise other members of the public as he had done to her.
She also noted that Nottinghamshire Police offered no apology to her, nor seemed to feel any undue remorse over the event – as if it was ‘all in a day’s work’.
Accordingly, Sharon exercised her right of appeal to the Police Watchdog, the Independent Office of Police Conduct (IOPC).
In May 2018 the IOPC produced a report which concluded that the disciplinary action proposed by Nottinghamshire Police was indeed inadequate and that PS Flint should face a misconduct hearing i.e a charge of gross misconduct which could result in his dismissal from the Force.
The misconduct hearing was fixed to take place in late 2018. During this time Sharon was suffering from significant ongoing depression and anxiety caused by the incident and the news of the misconduct hearing was very welcome to her and gave her reason to feel more confident that justice would – eventually – be done and that those institutions which govern Police conduct were treating her complaints seriously.
Unfortunately, Sharon then suffered a period of hospitalisation following what should have been a routine operation, and the misconduct hearing had to be adjourned to January 2019.
Before giving evidence at the hearing, Sharon was for the first time allowed to watch the bailiff’s body camera footage of the incident. This demonstrated that everything had pretty much occurred as Sharon had recalled in her statement to the Police. She noted how rudely PS Flint had spoken to her auntie and was shocked at how PS Flint dismissed her assertion that he had no authority to assist the bailiff in accessing her home/seizing her possessions. Furthermore, it was clear from the footage that nothing the bailiff had said to the Police Officers had suggested that her son and cousin had gone into her home rather than walking off to the local shops, further undermining any basis PS Flint might have had for wanting to enter her home. When the video footage got to the part in which she went into the house with the Officers and they began to attack her, Sharon found she simply couldn’t watch anymore. It was simply too distressing.
Sharon subsequently gave evidence for around two hours at the hearing, although it was an ordeal that felt a lot longer to her. Sergeant Flint’s advocate accused Sharon of lying – first saying that she had not in fact unlocked the front door and then accusing her of kicking the Officers when they tried to grab hold of her. It was a very unpleasant experience and Sharon felt like she was the one who was on trial. Nevertheless, she saw it through.
The misconduct case was covered by a local newspaper who published a headline reading “Policeman in fear of violence from woman after being called to house by bailiff”. This twisting of the true facts was, in effect, a succinct summary of Sergeant Flint’s ‘defence’.
After the conclusion of the hearing, Sharon received a call from the Complaint Investigator who told her that the outcome was that Sergeant Flint had been sacked.
She then commenced psychotherapy to try to address the ongoing mental injury which these events had inflicted upon her.
However, in July 2019, Sharon learned that PS Flint had launched an appeal to the Police Appeals Tribunal and in September her worst fears came true when she was informed that his appeal was successful, Sergeant Flint had – at least temporarily – been reinstated and Sharon now faced the ordeal of having to relive the whole incident again at a new misconduct hearing, completely derailing her attempts to obtain psychological closure on this horrible episode.
The second misconduct hearing took place in November 2019 and once again Sharon steeled herself and bravely gave evidence, being subjected to several hours of extensive cross-examination which felt even worse than the first time. Sharon was made to feel as if she was the wrongdoer and the lawyer acting for Sergeant Flint sought to argue that her son and cousin could have climbed through several back gardens in order to sneak into her house. Sergeant Flint seemed utterly unrepentant for his actions.
At the end of this long ordeal it seemed that justice had finally been done and Sharon’s courage and perseverance had been awarded – Sergeant Flint was sacked (again) and Sharon was told that his name would be placed on a register such that he could never serve as a Police Officer again.
Although this was a very welcome result, the hugely extended process of the complaint investigation and two misconduct hearings had played havoc with Sharon’s mental health such that she remained frightened to open her front door. She experienced panic reactions to unexpected noises and the sight of Police cars in her street. Each time she had had to relive these shocking events at the misconduct hearings she felt that her home was being violated and that she was being assaulted all over again by an utterly unrepentant Police Officer.
Unbelievably, Sharon’s ordeal was still not over as she was now informed that Sergeant Flint had once again appealed. The Misconduct Merry-Go Round would continue, and no-one, it seemed was able to remove PS Flint from his high horse.
In June 2020 Sharon was informed that PS Flint’s second appeal to the Police Appeal Tribunal had been successful and that at this time, instead of there being a third hearing to determine his fate, the Tribunal had imposed a sanction of a ‘Final Written Warning’. PS Flint was therefore now back in uniform and able to resume his career. Sharon was devastated and immediately feared repercussions from the Officer and his colleagues.
The terrible rollercoaster ride that she was on in regards to the misconduct proceedings had still not come to an end, however. Nottinghamshire Police themselves challenged the leniency of the Police Appeal Tribunal’s decision via Judicial Review, leading to the High Court overturning the Tribunal’s decision and directing that a newly convened Appeal Tribunal must reconsider the appropriate sanction.
Finally, in October 2021, the new Police Appeal Tribunal reaffirmed the decision of the last one and after four years of considerable expense and heartache to all concerned, it was determined once and for all that PS Flint would remain as a Police Officer under a ‘Final Written Warning’.
Sharon found the whole complaint process completely bewildering. She did not feel like a victim; at best she was treated as a third party witness, and at worse subject to cross examination that made her feel like a criminal. It was her complaint, but she felt largely side-lined by the opaque processes of the investigation and excluded from its decision making. Sergeant Flint was sacked twice but the Police Appeals Tribunal reinstated him both times. Furthermore, at no stage did anyone in the institution of Nottinghamshire Police offer any apology to Sharon, notwithstanding the fact that by the end of the process the Force themselves apparently wanted to see the officer sacked…
Such were Sharon’s feelings of feeling side-lined and degraded at the end of this process, that she made active plans to sell her house and move permanently away from Nottingham, her lifelong home.
I have to say that Sharon’s ordeal with the Police Complaints process echoes my own long experience of this frequently biased and uncaring regime – Police Officers facing complaints have more lives, it seems, than a cat whilst their victims are made to feel at best like mice, and at worse like rats.
Getting Justice Done
Fortunately, the Police Complaint process is not the only mechanism through which justice can be secured for the victims of Police misconduct and I was very pleased to be able to take on Sharon’s case for her in the form of a civil compensation claim against the Chief Constable of Nottinghamshire.
Whilst the Police quickly admitted liability for trespass, wrongful arrest and assault in principle, they continued to dispute the full extent of the force used against Sharon and also disputed her entitlement to aggravated or exemplary damages – notwithstanding their written acceptance that PS Flint’s actions were “high handed and oppressive.” Nottinghamshire Police admitted that Sergeant Flint had entered Sharon’s home without any lawful power to do so and that her arrest for ‘breach of the peace’ was equally unlawful – but their initial offer of settlement was a mere £3,350, which Sharon quite rightly rejected given the impact these events had had upon her life for such an extended period of time.
It proved necessary for me to institute Court proceedings against the Chief Constable, in response to which Nottinghamshire Police upped their offer to £15,000, which was again inadequate.
Drawing strength from her previous adversities, Sharon was fully prepared to go to Trial if necessary – notwithstanding her previous ordeals at the misconduct hearings – but shortly before the Trial was due to commence, in May 2022, Nottinghamshire Police backed down and agreed to pay Sharon damages in the sum of £40,000 for the misconduct of PS Flint and his colleague, as well as Sharon’s legal costs. (Read the BBC’s report here.)
It may seem bizarre that the Police would contest Sharon’s legitimate claim and cause massive expense to be incurred by both parties in terms of legal costs before caving in shortly before Trial – in a matter in which the Police themselves had apparently felt Sergeant Flint should be sacked for his actions – but such unfortunately is the normal defensive mentality, bias and reactive conduct of Police Forces when they are sued – generally putting brawn before brain and often slow to do the right thing in terms of both justice and pragmatism.
The only sour taste left in the mouth at the end of this case is the ultimate failure of Nottinghamshire Police to ever apologise; Sharon even offered them an opportunity to settle her damages for a lower sum if accompanied by an apology, but it would appear that institutional pride prevented pen from being put to paper in this regard.
Although another way of looking at this is that Sharon received 40,000 apologies from the Police, in the only language they were prepared to speak – and that is the result of her bravery and perseverance, prepared to face court room cross-examination for a third time in order to secure justice. When PS Flint went long, Sharon went longer.
The UN Convention on the Rights of the Child (UNCRC) which the UK has signed and ratified, as is only right and proper given our country’s status as both a founding member of the United Nations and wellspring of many of the Human Rights traditions which are at the core of its ethical mission, injuncts that –
“No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”.
A few months ago I blogged about the case of ST v The Chief Constable of Nottinghamshire Police which highlighted the extreme importance of safeguarding children from arrest except in cases of the utmost necessity. In this week’s blog I will be discussing one of my own cases in which, by upholding that principle, I was able to win a substantial financial settlement on behalf of a young teenager who had been wrongfully arrested.
My client, whom I will identify as ‘Harry’ for the purposes of this blog, was only 14 years old when he was arrested at home in October 2020 by PC Parker on suspicion of rape. In a subsequent witness statement made later the same day, PC Parker re-counted the explanation that he gave to Harry at the time of his arrest as follows:-
“We have received an allegation that during the summer of 2020 on two separate occasions during the same day you have engaged a 13 year old female to perform oral sex on you. Therefore I am arresting you on suspicion of 2 counts of rape. Your arrest is necessary to prevent the loss of property and to protect vulnerable people”.
Harry was then transported alone into Custody at a local Police Station where he was processed and later interviewed (the interview taking place in the presence of Harry’s father) before being released at approximately 22.30 under investigation.
The arrest necessity reasons as specified in the Custody Record were as follows:-
Allow a prompt and effective investigation;
Prevent a person causing loss or damage to property;
Protect a child or other vulnerable person.
Whilst Harry was in Custody he was required to provide his fingerprints and a DNA sample.
During Harry’s interview under caution it transpired that the event giving rise to the alleged offence had occurred several months earlier (on an unspecified date in the summer of 2020) and that the Police had not yet obtained a formal statement from the alleged victim.
It was also put to Harry that other teens had been present at the time of the alleged offence and that somebody may have videoed the incident. Under legal advice, Harry chose not to answer any of the questions put to him.
Approximately 2 weeks later, Harry’s parents received a telephone call from DS Mansfield to advise that no further action would be taken against Harry on the basis that no criminal activity had taken place.
DS Mansfield subsequently updated the investigation log with the following summary of her discussion with the alleged victim of the rape:-
“I then explained to REDACTED that the acts she had described did not amount to an offence or to criminal activity. Harry had not forced her into performing the act nor would have had any way of knowing that she did not consent, although REDACTED is not actually saying that she didn’t consent. We spoke about peer pressure and ….. gave advice on dealing with situations in the future.
In summary, this is a case of a truth and dare game that has possibly escalated. REDACTED accepts that she was not forced into committing a sexual act on Harry but felt peer pressured into doing it. This is denied by all other people present at the time. There is no evidence of any coercion or incitement, no assault and no false imprisonment. REDACTED states that there were 2 incidents. This is not supported by any other witnesses who all maintain that there was just one.
Harry and REDACTED 2 and REDACED 3 parents have all been updated with the outcome and their phones returned. The parents have been supportive and provided strong words of advice to their children about these matters. They have voiced their concerns about the way the initial report was dealt with and that their children were arrested, which they found traumatic. …. advice has been given to parents about applying to have their children’s information removed from PNC.
This case therefore is now complete. I request that the matter is filed. Although it is clear that a sexual act has taken place between two 14 year old children, there is no evidence to suggest that this was forced in any way and there was no imbalance of power or threats. Although REDACTED indicates she felt peer pressured into doing it, she also accepts that she did not verbalise this and therefore no one would have been aware. She was not assaulted or falsely imprisoned… at any time and therefore there is no evidence to support or prove any of the offences for which the children were arrested. Although it is confirmed that a recording took place, there are differing stories around how this came about and whose idea it was. It was confirmed that it was recorded on the sister’s phone, again with differing explanations as to how this came about. As stated, CPS would not criminalise children for this. I request that this matter is filed with no further action”.
The unnecessary arrest of a child
A lawful arrest requires 2 elements:-
A person’s involvement or suspected involvement or attempted involvement in the commission of a criminal offence; and
Reasonable grounds for believing that the person’s arrest is necessary.
Both elements must be satisfied, or else the person’s arrest and detention will constitute false imprisonment.
The case which I built against the police on behalf of Harry was that his arrest and detention were unlawful as not being founded upon reasonable suspicion of the commission of the alleged offence and/or because arrest was not necessary as required by Section 24 of the Police and Criminal Evidence Act 1984 (as amended by) Section 110 (4) and (5) (e) of the Serious Organised Crime and Police Act 2005).
Section 24 PACE, so far as is relevant, provides that:
Arrest without warrant: constables
(1) …
(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.
(3) …
(4) But the power of summary arrest conferred by subsection (1), (2) or (3) 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.
Further guidance is provided in PACE Code G regarding certain circumstances which an arrest would be necessary. Code G 1.3 reminds Officers that the use of the power of arrest must be fully justified and Officers exercising the power should consider if the necessary objectives (listed above) can be met by other, less intrusive means. Arrest must never be used simply because it can be used.
The case which I argued on behalf of Harry was that even if, which was not admitted, the Police had on the day of Harry’s arrest sufficient evidence to amount to a reasonable suspicion that the alleged offence had been committed, then given the considerable length of time that had elapsed since the commission of that alleged offence, and the young age of the persons involved it cannot have been necessary to arrest Harry and therefore the investigation could and should have instead been progressed by means of a voluntary attendance and interview at the Police Station with Harry and his father, without arrest.
I am pleased to confirm – not least because a speedy conclusion to litigation in this case was of obvious benefit to Harry in allowing him to put these highly unpleasant events behind him and avoid the experience of a contested trial – that whilst the police initially failed to admit liability, I have now secured Court approval of a settlement in the sum of £6,000 damages for Harry, plus his legal costs, and can confirm that this settlement comes after the granting of Harry’s father’s application for deletion of his son’s Police National Computer records in relation to this wrongful arrest. The settlement damages agreed reflect the fact that Harry’s relatively short period of detention in police custody (just over 4 hours) was accompanied by significant aggravating factors such as the shock and distress caused to a 14 year old child subjected to ‘adultification’ in this way by being deprived of his liberty and processed at the Police Station as a criminal suspect, as well as the fact that Harry’s arrest took place at home in front of his parents, puncturing the sense of safety and security that any child is entitled to enjoy in that environment and the anguish and embarrassment caused by the nature of the offence for which he was arrested.
I fully accept that the allegation which the police received, and which certainly required investigation by them, was an extremely serious one – but even on the face of that allegation it should have been clear that there was no danger of immediate or continuing harm to the alleged victim and that, given the time lapse of several months since the event was said to have occurred, there were simply no reasons to trump the presumption that children should not be subjected to arrest – a presumption enshrined in the Police Codes of guidance, in the case law of England and Wales, and in the UNCRC itself. This matter could properly have been investigated by way of a voluntary interview arranged with Harry and his father, thereby preserving Harry’s dignity and minimising the distress and anxiety caused to him. Indeed, it does seem from DS Mansfield’s review of the evidence that had the police actually carried out proper enquiries with the alleged victim first, that this matter could have been dealt with without Harry being subjected to any police inquisition at all, let alone arrest and detention.
I trust that the Police Force concerned will take the lessons of this case to heart and better safeguard the welfare of children in the future. Sometimes the most important duty of those who hold vast power over others, is simply not to use that power.
The case of my client Aaron Humphries fell under the media spotlight in July of this year, when West Mercia Police exonerated themselves for the ‘accidental’ shooting of Aaron.
The incident in question occurred on 2 October 2021, when Aaron was reported by a member of the public to have what they believed was a firearm in his vehicle – it was in fact a ‘BB’ gun. Aaron, who had fallen asleep in his car, awoke to the sound of shouting and realised that his vehicle was surrounded by Police officers who were training their firearms upon him.
In a state of shock, and following commands given by the firearms squad, Aaron exited his vehicle and stood by the open driver’s door. He was holding nothing in his hands, a fact which was clearly visible to the Police.
One of the officers approached Aaron with handcuffs, whilst another approached with a taser; ‘red-dotting’ Aaron with the less lethal weapon. Aaron remained fully compliant. Then, without warning, he was shot by one of the officers (identified as Officer B) with her carbine, a lethal weapon.
The bullet from Officer B’s carbine punctured the open door of Aaron’s car, hit Aaron’s left knee and then tore through his right leg, creating entry and exit wounds. Aaron fell to the floor, bleeding and in excruciating pain, before being rushed to hospital by ambulance for emergency surgery.
Following the incident, Officer B was interviewed by the IOPC (Independent Office of Police Conduct). Her account of events was that she accidentally fired her carbine whilst holding a large, heavy shield in her left hand and trying to apply the safety catch with her right hand. Indeed, body worn video records the officer shouting “Sorry, sorry!” immediately after her weapon was discharged.
Given the seriousness of this ‘unintentional discharge’ the IOPC – quite rightly in my opinion – determined that Officer B had a case to answer for misconduct, but the subsequently convened West Mercia Police misconduct panel concluded that the officer’s conduct had not breach the Standards of Professional Behaviour and Deputy Chief Constable Julian Moss released a statement to the press announcing that there had been ‘no misconduct’, although Officer B’s authorisation to carry firearms was revoked.
At that time, I released my own statement to the press, highlighting Aaron’s disappointment at the outcome of the misconduct proceedings (which had taken place behind closed doors). The officer in question had, even on her own account, negligently discharged a lethal weapon that had left Aaron crippled and unable to continue in his occupation as a civil engineer; it was sheer luck that the ‘rogue bullet’ did not kill Aaron – or in fact, one of the Officer’s colleagues or indeed an innocent bystander. I highlighted the fact that the public should not feel comfortable at the rather self-congratulatory attitude adopted by West Mercia Police, who seemed very pleased to see their officer get off ‘scot-free’ in misconduct terms. Officer B had chosen to accept the grave burden of becoming a firearms officer and had then shot a fully compliant and non-threatening suspect as a result of a gross and totally unforced error, yet she would face absolutely no personal or professional consequences as a result – unlike my client, for whom the consequences of his horrendous injury are likely to be life-long. Once again this seems to send the message that there is one law for the Police and one law for the rest of us.
However, I am pleased to confirm that there certainly will be institutional accountability for what happened to Aaron, as I have brought the full force of the civil law to bear against West Mercia Police in the form of High Court proceedings, in which they have now admitted full liability for assault and battery. Aaron will in due course receive a significant compensation award – though he would give it all up to change the trajectory of that bullet to a harmless one.
Long experience of actions against the Police has taught me exactly which obstructionist/ delaying tactics to expect from the lawyers acting for the Police and I thought I would share here my list of seven of their most ‘deadly’ sins.
1. Disingenuous Limitation Defences
In respect of personal injury claims (whether physical or psychiatric), Court proceedings must be brought within 3 years of the incident giving rise to the injury (if the injured person is an adult); whilst claims in respect of breach of the Human Rights Act (HRA) must be brought within one year of the incident – but the Court has discretion in regards to both such causes of action to allow the claim to be brought late i.e after those ‘limitation’ deadlines, provided there is a reasonable justification for this. Nevertheless, Police solicitors will frequently hide behind limitation arguments even when they know that it is equitable for a claim to be brought ‘late’ because of extenuating circumstances – generally because of delay directly caused by the length of a complaint investigation or the psychological impact which Police failings, abuse and/or criminal proceedings have had upon a person. This is a common tactic to keep Claimants under pressure and at a procedural disadvantage – no doubt utilised by the Police in the hope that this will cause the abandonment, or at least facilitate an under-settlement, of an otherwise meritorious and legitimate claim.
In other words, the Police solicitors seek to gain an advantage over potential litigants by raising limitation even when they know that Court discretion will almost certainly follow – such as in a Human Rights claim I am currently handling on behalf of a rape victim who suffered significant failings in the handling of the criminal investigation conducted by her local Police Force. The failings in question occurred in the second half of 2019, and Court proceedings were not issued until I was instructed by the Claimant in November 2021 – around a year after expiry of the primary limitation period for a HRA claim – but this has to be seen against the context of the Claimant having had to endure first the criminal prosecution of her attacker until late 2020 and then the misconduct proceedings brought against the negligent Police officers which lasted until October 2021.
Key guidance from the Court of Appeal in limitation disputes was provided by Sir Terence Etherton MR in Carroll v Chief Constable of Greater Manchester Police [2017] EWCA Civ 1992. The Limitation Act is specifically designed to protect Defendants from the injustice of having to fight stale claims, especially those in which any witnesses the Defendant might have been able to rely upon are no longer available, or have no recollection of events and/or there are no documents to assist the court in deciding what was done or not done and why. In Carroll, Sir Terence succinctly states-
“It is therefore particularly relevant whether and to what extent the Defendant’s ability to defend the claim has been prejudiced by the lapse of time because of the absence of relevant witnesses and documents……subject to considerations of proportionality …… the Defendant only deserves to have the obligation to pay due damages removed if the passage of time has significantly diminished the opportunity to defend the claim on liability or amount……”
Police lawyers are as aware of such guidance and Court rulings as I am but nevertheless frequently use the threat of limitation defences as spoiling/ delaying tactics, even when that defence has no real merit.
2. Delay by design?
The time limits in regards to the issuing of a claim are, as indicated above, quite clear and if there is in fact no good reason for delay, the expiry of that time will extinguish the victim’s right to claim.
Unfortunately, the time frame for the Police to provide a response to a letter of claim is much woollier; the pre-action protocol on personal injury claims indicates a response should be provided to any claim within 3 months of notification, but this deadline carries no real sting in the tail. If the Police fail to adhere to it, there is no specified penalty. Instead, a prospective Claimant is simply left in the dark, not knowing what the Police’s ultimate response will be, and with his or her solicitor often unable to properly advise about the merits of a claim in the absence of key evidential documents which are in the possession of the Police.
Such delay may be unavoidable in a complex case; or it may be due to incompetence or a lack of resources within the Police legal department – but sometimes it strikes me as a deliberate tactic designed to demoralise a Claimant by dragging matters out and leading them to question themselves/ lose heart in the process and their own solicitor. It must be proactively contested, and I am often required to do this on behalf of my clients.
3. ‘Twisting’ legislation
I have long experience of the Police penchant for hiding behind legislation which wasn’t originally intended to shield them from claims, but which has in effect provided them with a defence – a key example being the provisions of Section 329 of the Criminal Justice Act 2003 which prevents anyone who has been convicted of a criminal offence from bringing a personal injury claim in respect of force used against them at the time of their arrest, unless the force used was not merely “unreasonable” but in fact “grossly disproportionate”.
The legislation in question arose from the infamous 1999 ‘Tony Martin’ case; after shooting dead a 16 year old burglar, Martin was subsequently sued by the young man’s accomplice, whom he had also shot during the incident. The purpose of the Criminal Justice Act was to give reassurance to the general public that people defending themselves, their families or their homes from attack could not be sued by criminals unless they had gone ‘over the top’. In practice, however, it is not private citizens who have repeatedly invoked the protection of the CJA 2003 to frustrate or delay claims for compensation – but rather the Police.
Take, for example, the case of my client Robert, arrested for a very minor benefit law infringement, but who had his leg shattered by a Police officer who deliberately struck him 3 times with a baton whilst he was restrained/ lying on the ground. Robert had to satisfy S.329 CJA in order to bring his claim and then satisfy the Court at Trial that the force used against him was indeed “grossly disproportionate” in order to succeed (which he eventually did, after a long drawn out saga in which the Police appealed over the precise interpretation of S.329, resulting in an eventual damages pay-out to Robert of £100,000.)
Another piece of legislation often used in an unreasonable and obstructive manner by Police lawyers is the Mental Health Act 1983. Section 139 of the MHA provides that permission from the High Court is required before any claim – such as for false imprisonment or assault and battery – can be brought in relation to any incident in which the other party claims to have been relying upon powers under the Act. This is once more a rule which was not really, or certainly not primarily, designed to protect the Police – but rather to prevent mental health practioners from being harassed by vexatious and quite possibly mentally unwell ‘litigants in person’ – but which is nevertheless now used by the Police to shield themselves from legitimate claims, even when on the facts admitted by the Police it does not properly apply – most commonly because the incident took place at a person’s home, where S.136 powers cannot by definition be lawfully used. Nevertheless, by raising the spectre of “S.139 permission” – without which any court claim no matter how meritorious is a nullity – the Police can present a Claimant with considerable obstacle of time delay and cost, including the potentially daunting prospect of an appearance before a High Court judge.
As a result, I have over the years developed an extensive track- record of successfully unlocking the Court doors which the Police seek to close by reliance on one of these two Acts.
4. Bad- faith Denials of liability
Parties are expected to admit liability in good faith when they conclude that they are liable; the overriding objective of the Civil Procedure Rules being justice at proportionate cost and the ethos of pre-litigation behaviour being a “cards on the table” approach – but very often, Police forces – especially the Metropolitan Police Service – will pursue a policy of denying liability in the face of even the strongest claim – only to accompany their ‘denial’ with a ‘without prejudice’ – i.e confidential – and ‘low-ball’ offer of settlement, once again seeking to demoralise the Claimant, undermine his or her faith in the system and then offer what seems like an ‘easy out’ rather than the apparent alternative of hotly contested litigation potentially lasting years. On other occasions the Police will ‘try on’ a denial of liability only to make a volte-face and settle when threatened with proceedings. In many such cases where liability is clear cut, the Police cause wholly unnecessary heartache and cost to all concerned by issuing ‘bogus’ denials.
People often ask me when an early Police denial is received: does this mean the case will go to Trial? The answer is often no, but the Police want you to think that. They don’t fool me.
5. Dishonourable Part 36 offers
Part 36 of the Civil Procedure Rules is a procedure whereby a litigant can make an offer to settle the claim – without making any concession of liability, as the offer must remain confidential between the parties until the conclusion of the case, unless accepted. If such an offer is not accepted within the relevant period – generally 21 days after it is made – the offeror can expect the Court to penalise the other party in legal costs should they ultimately fail to do better than that offer, either by late acceptance of its terms or being awarded a lower sum of money at Trial.
Frequently, Police lawyers will make Part 36 offers when the full value of the claim remains unknown – because medical treatment for a physical or psychological injury is ongoing, for example – thereby putting the Claimant at serious financial risk in a situation where it is simply impossible to be confident about whether the offer can be beaten or not. Unfortunately, the Court rules have no sympathy for a Claimant put in this position – so it is essential that when the Police try to take advantage of ‘known unknowns’ such as eventual medical outcome in a complex case, you have an expert lawyer on hand who has dealt with such situations before and knows how to assess and minimise the risks you face.
6. Social Media Snooping
In this ‘online’ day and age Claimants are well advised to be aware that the Police are likely to go snooping through any available social media records which exist – particularly publicly viewable posts on the Facebook and Twitter platforms etc. People making posts on social media are generally, and quite understandably, trying to present a cheerful and rosy picture of themselves to friends and acquaintances – that is a natural human impulse and the very definition of what ‘socialising’ is. People present not a false face, but often a deliberately partial picture – not wanting to burden others with their real pains, concerns, hurts and worries in an environment that expects positive vibes and ‘putting your best face forwards’. Frequently, however, I have seen Police lawyers obtain clients’ social media posts and seek to exploit them as if they were private diary entries revealing how a person ‘really’ feels and attempting to contrast this to the Claimant’s account of psychological pain and suffering arising from their mistreatment at the hands of the Police, so as to sneeringly shout – or at least snidely infer – “There’s nothing wrong with her!”
Thus the case of my client Hayley Cunningham. The solicitors acting for British Transport Police assembled a ‘dossier’ of her Facebook posts in an outrageous attempt to call her honesty into question. The Police sought to rely upon a number of posts which were all from several years after the incident and which were about her going to exercise classes. As I summarised in my 2017 blog on Haley’s case, this material was –
“Nothing out of the ordinary at all; just run-of-the-mill (or should that be treadmill?) group fitness classes, which my client had participated in, in order, partly, to help build up her social confidence and mental health after the terrible effects of her arrest, imprisonment and prosecution. The Police were, in my opinion, quite unscrupulously, now trying to use these ‘posts’ to suggest that Hayley’s dizziness at the top of the railway station steps must have been due to drunkenness rather than constitutional/ health reasons – as if her ability to participate in a planned exercise class (‘on the flat’ in a gymnasium) years later had any relevance to how she was after climbing 160 stairs years before! It was palbable nonsense – but showed the lengths the Police were prepared to go to in order to frustrate Hayley ’s claim, and demoralise her.”
I am pleased to report that I was, ultimately, able to get the ‘social media’ evidence thrown out at a pre- trial hearing before a Judge who agreed with me that it was irrelevant to the case. Nevertheless however, Hayley had to experience this unwarranted intrusion into her private and social life and I raise this as an example to caution any potential litigant against the Police that they could also face such unscrupulous tactics.
7. Drip- feeding Disclosure
This is another spin on the delaying tactic I have described above, whereby Police lawyers seek to frustrate the Claimant, undermine their will to continue – and, perhaps, undermine their faith in their own solicitor – by responding to the Claim but not providing all of the evidential documentation which they should, leading the Claimant and his lawyer to have to pursue them for documents such as video footage, officer’s complaint histories, officer’s notebook entries, investigation logs etc which could and should have been provided ‘up front’. Often the Police legal team will blame delays within data disclosure units, adopting a frustratingly passive- aggressive stance. A variant of this tactic is where the Police actually admit liability BUT fail to provide any documentation at all – arguing that body camera footage and/or officer statements are no longer relevant for disclosure because ‘the game is up’ and liability is admitted. Of course, the fact remains that admitting an arrest was unlawful does not necessarily mean that all of a Claimant’s allegations about the outrageous nature of that arrest, the derogatory or abusive attitude of the officers or the level of force used is admitted… Very often the Police will attempt to hide their own dirty laundry behind an early admission of liability in the hope that disclosure will then not be pursued.
Fortunately, I am well versed in this as well as the delaying tactic and can advise clients how to circumvent it by utilising Court proceedings – including the efficient mechanism of a pre-action disclosure application which allows a potential party to a claim to obtain an order requiring the other party to produce the documents which are of key relevance to the merits of the claim.
All of these tactics are a reason why you need a highly experienced lawyer fighting your claim who knows them well, and better yet, knows how to beat them. Indeed, I relish getting to grips with the Police on all of these battlefields. If you believe you have been wronged by the Police don’t hesitate to contact me for expert advice and representation.
Some of the wrongful arrest claims which I handle arise directly from Police malice i.e the deliberate fabrication of falsehoods in order to justify a person’s arrest, very commonly to cover-up the fact that an officer has over-stepped the mark, lost his temper and assaulted a member of the public (whom he now accuses of having ‘thrown the first punch’).
But other wrongful arrests arise from more indirect acts of Police misconduct – including sloppy investigations, mistaken identity and prejudice/ bias on the part of the Police – all three of which factors I believe played a part in a case which I have recently successfully concluded against Thames Valley Police (TVP).
My client, whom I will identify as Adam Butler, lived in Oxford and had recently fallen out with his brother Jack over a relatively innocuous argument involving an x-box.
Adam had a past criminal conviction for which he had served prison time, but was now very much on the straight and narrow.
On 23 December 2020 Thames Valley Police opened an incident log in relation to a reported offence of harassment, said to have been committed in the Oxfordshire village of Kennington, as follows-
Caller noticed a male riding his bike passed her house multiple times a day and stopping outside the bushes in her house back in October. She said she had noticed him looking up at her window and staring, she said to him “Is everything ok?” The male said “Yes” shrugged his shoulders and carried on standing there…
This then escalated to the male dropping a Christmas card off at the house at the end of November – Caller didn’t think this was serious until this point and seeked advice from her room mates about the card and they stated that this was very weird. The Christmas card said “To someone special, Merry Christmas and a happy new year”. This was not signed off…The next day she saw the male walk passed her drive and stop outside the bushes, she looked out of the window and he gestured that she open the window which she did and the male asked her if she got his card, she said thank you it was very kind of you and closed the window.
She then didn’t see him for a while…Then today she has received a letter from the male, she was sat at the window and saw him walk to the door and then walk away and then get on his scooter and ride away. She opened the letter and it said-
FOR THE ATTRACTIVE SEXY GIRL THAT LIVES UPSTAIRS XXX – TO WHOM IT CONCERNS, I HOPE YOU DON’T GET OFFENDED BY THIS AND IM REALLY SORRY IF YOU DO. HOWEVER ME AND MY FIANCEE HAS GOT A PROPOSAL FOR YOU IF YOU WOULD LIKE AND ARE WILLING ME AND MY FIANCEE WILL PAY YOU £65 ON THE DAY TO HAVE SEX WITH ME WHILST RECORDED. AND ANOTHER £65 WITH MY FIANCEE TO COME DOWN AND HAVE A THREESOME WITH US. IF YOU WERE WILLING CAN YOU PLEASE SEND SOME PICS OF YOURSELF AND WE WILL DO THE SAME WE LOOK FORWARD TO HEARING FROM YOU. KIND REGARDS JACK BUTLER.
PS CAN YOU PLEASE IF POSSIBLE SEND ME THE REPLY ON FACEBOOK OR SNAPCHAT.
The ‘proposal’ was then signed off, with the author providing his ‘Snapchat’ and ‘Facebook’ addresses, in anticipation of the victim making contact with him. Both of these addresses were names which were variations of ‘Jack Butler’.
Some might say that this was not necessarily a case to tax the brain of Sherlock Holmes or Hercule Poirot, or dare I say it Inspector Morse – the perpetrator of the harassment clearly having identified himself and signed his name at the end of the letter.
My client’s brother Jack was quite properly identified as the suspect within a few hours of the crime being reported – but the Police then went on to ‘overthink’ the case and identified Adam as an additional suspect, because of his previous criminal record and the fact that they believed that Adam lived in closer proximity to the victim’s house. This was despite the fact that they had Jack Butler’s signature and his correct social media addresses. Furthermore, the Police based their assumption of proximity on a mistaken belief that Adam lived in Kennington – the village where the incident occurred – whereas in fact he lived in Headington, some 5 miles away on the other side of Oxford.
Yet further, the Police were soon in possession of a photograph of the offender – obtained from the victim’s Ring doorbell – and it was noted that this appeared to match the Facebook profile photograph of my client’s brother. The two brothers were not twins, and facially looked quite distinct; Adam was of chubbier build and did not have a slim face – the victim having notably described the offender’s face as appearing ‘very slim and sunken’ in a statement she made the day before Adam’s arrest. Furthermore, Adam had a distinctive gap in his teeth, where his brother did not.
Nevertheless, on 23 December, two officers visited Adam’s flat and and questioned him as to whether he had a girlfriend (which he didn’t) and whether he knew anyone who lived in Kennington . The female officer of the pair explained about the offensive letter which had been posted and asked to see Adam’s diary so she could compare his handwriting to that on the letter. Adam was happy to fully comply with all of these enquiries/ requests. When the female officer handed Adam’s diary back to him she reassured him “You don’t have anything to worry about.”
Sadly, Adam was to receive another visit to his flat the following day, Christmas Eve, and it wasn’t from Santa Claus but rather more Police officers – come this time to arrest him.
The group of officers who turned up to arrest Adam on 24 December were different and didn’t appear to know anything about the visit their colleagues had made the day before. Adam was led out of his house, had his phone confiscated and was transported to Abingdon Police Station. He was booked into custody, searched and incarcerated in a cell – the last place anyone wants to be on Christmas Eve. He was extremely stressed by these unfolding events and, as he suffers from mental health issues – including depression and previous self harm – asked for his support worker to be notified. Adam knew he was entirely innocent and couldn’t understand why he was being arrested.
Eventually, around 3 hours later, Adam was released – without having been interviewed. It seems a senior officer had looked at the Ring doorbell photograph of the offender and realised that this obviously wasn’t Adam. The investigation proceeded in regards to Jack only – who, indeed, subsequently admitted his guilt for the offence (which it should have been patently obvious from the outset he had committed).
It was quite clear that only one of the Butler brothers should ever have been arrested on the known facts – Jack – but the Police appear to have followed a lazy ‘arrest the usual suspects’ approach and to have treated my client as a suspect largely if not solely because of his historical criminal record, which had nothing specifically to do with the offence under investigation. Entirely unnecessary suffering was caused to Adam as a result and he quite rightly sought compensation from Thames Valley Police.
Adam was initially represented in bringing his claim by a criminal defence solicitor (whom I highly respect) who subsequently referred Adam to myself when the Police made it clear they were going to dispute liability for wrongful arrest.
TVP continued to argue that they had the requisite ‘reasonable suspicion’ to arrest Adam, so I issued Court proceedings on Adam’s behalf and shortly afterwards was able to settle Adam’s claim on terms which included a very satisfactory financial settlement but, more importantly, gave Adam a sense that the scales of justice which had been tipped against him by sloppy Policing and prejudice arising from his past criminal record could be rebalanced and the system that had wronged him could be made to work in his favour, and deliver a fair and proper outcome.
I will let Adam have the final word in this blog, in the terms of the kind review which he provided at the end of his case-
I came across Iain Gould as he was highly recommended by another solicitor…He is very understanding, honest, respectful and works very hard to get the best possible outcome…I would highly recommend working with Iain Gould.
The fundamental importance of actions against the Police and other State authorities in maintaining our civil liberties and the good health of our Democratic institutions is strikingly demonstrated by the fact that the area of law in which I specialise, is one of the few remaining areas of civil law in which Claimants generally have a right to elect for Trial before Judge and Jury, rather than by Judge alone.
Whilst even the most serious accident claims (valued at a million pounds or more) are tried without a Jury, the right to a Jury Trial in a limited number of other civil actions is preserved in Section 66 of the County Courts Act 1984 which provides as follows –
(2)In all other proceedings in the county court the trial shall be without a jury unless the court otherwise orders on an application made in that behalf by any party to the proceedings in such manner and within such time before the trial as may be prescribed.
(3)Where, on any such application, the court is satisfied that there is in issue—
(a)a charge of fraud against the party making the application; or
(b)a claim in respect of … malicious prosecution or false imprisonment; or
(c)any question or issue of a kind prescribed for the purposes of this paragraph,
the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.
Thus, very many claims against the Police (or other state bodies) which involve false imprisonment (i.e. wrongful arrest) or malicious prosecution fall within this exception to the general rule pertaining to civil Trials and entitle Claimants to elect for Trial by Jury.
Whilst such a Claimant is certainly not obliged to choose Trial by Judge and Jury – they may well decide to proceed to Trial before a Judge alone for a variety of reasons, in which case they need do nothing – the importance of a Trial by Jury in cases involving allegations of the abuse of power by State agents against private citizens is well established. The Police, after all, police our streets – so perhaps it is appropriate to have issues of fact decided by those who spend more time on those streets than do our often “ivory-towered” judiciary.
In Ward v Chief Constable of West Midlands Police Hobhouse LJ observed:
‘Trials such as this are conducted with the assistance of the jury because of the nature of the allegations made and the issues raised and the desirability in the interests of justice not only being done but being seen to be done of having a jury to decide disputed issues of facts’.
In Darragh v Chief Constable of Thames Valley Police Sir Patrick Russell stated:
‘There is no doubt whatever that some of the issues in this case would be best tried by a jury, for example, allegations of police brutality and, generally, of police misconduct. Those issues are eminently suitable for the decision of a jury and are frequently within the province of the jury, not only in a civil court but more particularly in the criminal courts’.
Most authoritatively of all, Woolf MR said the following in the leading case on damages in civil claims against the police, Thompson and Hsu v Commissioner of Police for the Metropolis [1998]:
‘There are arguments which can be advanced to justify the retention of the use of juries in this area of litigation. Very difficult issues of credibility will often have to be resolved. It is desirable for these to be determined by the plaintiff’s fellow citizens rather than judges, who like the police are concerned in maintaining law and order. Similarly the jury because of their composition, are a body which is peculiarly suited to make the final assessment of damages, including deciding whether aggravated or exemplary damages are called for in this area of litigation and for the jury to have these important tasks is an important safeguard of the liberty of the individual citizen’.
However, the fact that a Trial by Jury is a fundamental constitutional right to Claimants in such cases, does not necessarily prevent Defendant Chief Constables from seeking to restrict that right. Indeed, twice this year I have had to secure that right for my clients at Court hearings in two separate claims against the police in which our application for Trial by Jury was either actively contested by the Police, or obstructively not consented to.
In the first case, which involved a claim brought by a young black teenager against the Metropolitan Police in regards to an unlawful stop and search, the police lawyers sought to play what was – in my opinion – a cynical game of semantics in seeking to argue that the Claimant was not entitled to a Jury Trial because his claim in false imprisonment was not “in issue” because liability had been admitted. This was a case in which the police had accepted that the stop/search had been carried out in an unlawful manner and therefore the Claimant was entitled to compensation – but the amount of that compensation was very much in dispute with the parties contending for vastly different sums and the police denying several of my client’s allegations regarding such serious matters as the use of force, the extent of injury and the attitude and behaviour of the officers involved – including whether their actions were motivated by racial prejudice.
The Metropolitan Police Service were nevertheless seeking to argue that because they had conceded liability the claim was no longer ‘in issue’ – an entirely incorrect argument in my opinion, given the remaining fundamental disputes about the factual circumstances in which that false imprisonment occurred (as outlined above) which would have a real and significant bearing on the level and type of damages to which my client was entitled.
In the second case, which involved a claim brought against Avon & Somerset Constabulary, the Police failed to recognise and agree my client’s right to jury trial by consenting to what should have been a straightforward application (there being no dispute that there was in issue a claim for false imprisonment and malicious prosecution) and instead required us to attend a hearing and persuade a judge that Section 66 of the County Courts Act did apply. It was quite clear that the Police hoped the judge would rule otherwise; they adopted a position of passive aggressive ‘neutrality’ rather than doing the right thing and agreeing the application to save everybody time and costs.
Ultimately, the (failed) attempts by two different Police Forces to dispute/ delay the citizens’ right to Jury Trial in these matters, and thereby allow the Chief Constable the comfort of not being scrutinized by a Jury of the Claimant’s peers, speaks volumes about the importance and need for maintenance of this right and tradition.
Democracy, as they say, dies in darkness – whereas juries shine a light: the light of public scrutiny upon Police misconduct.
It is a terrible thing for any parent to be falsely accused of harming their child but the trauma of that false accusation can only be multiplied if it is accompanied by a wrongful arrest and separation from your child in the early hours of Christmas Day itself – which is, sadly, exactly what befell my client Karen at the hands of Merseyside Police Officers on 25 December 2021.
Karen is employed as a full-time carer, working with elderly and disabled people. She is a single mother and lives with her 9-year-old son.
She had worked Christmas Eve, had Christmas Day off, and was due to return to work on Boxing Day.
The incident arose from concerns that Karen had about her son; she was worried that he was being bullied at school by another boy who always seemed to be shoving/picking on him.
She had reported the matter to the school but they had seemed disinterested, trotting out the old line of ‘boys will be boys’.
On Christmas Eve, Karen’s son had been out with friends. He had marks around his neck which Karen was concerned could have been caused by another boy (although her son denied this). Karen therefore contacted the Police.
At approximately 3.30am on 25 December two officers of Merseyside Police, including PC Percival, attended at Karen’s home and spoke to her and her son (recording their interactions on their body worn cameras).
The subsequent Complaint Investigation Report arising from this incident states that it was clear from the body camera footage that the Officers believed the marks to Karen’s son’s neck to be some sort of rash rather than as a result of an assault. Karen’s son told the officers that his neck had been itching for a number of days and had worsened. The Complaint Investigation Report goes on as follows –
He [Karen’s son] explained that his school were aware that his teacher had provided him with an ice pack and suggested that it may have been caused by washing powder. [Karen’s son] was articulate and provided credible responses to all questions asked of him. There was no indication from his responses that suggested any assault and all he displayed was frustration at the fact that his neck was sore. There was nothing to indicate that [Karen] had caused any injury and it was evident that she was concerned about the marks to her son’s neck.
Indeed, PC Percival now sought to re-assure Karen that the marks on her son’s neck were like eczema and the advice by the Officers was that Karen should take her son to a Walk-in-Centre for treatment. The Officers then left the address stating that they would seek advice from their Supervisor, having gathered all the necessary information.
However, around an hour later the two Officers returned to Karen’s house and PC Percival explained to Karen that they had spoken to their Sergeant and had concerns about her son owing to the fact that Karen appeared to be intoxicated at the time of their first visit and therefore not in a position to care for him. Karen was understandably upset by this and asked to be left alone and for the Officers to leave her home. Karen started to shout at the Officers, whereupon PC Percival handcuffed her. This action further escalated Karen’s anger and the Officers then informed Karen that she was now under arrest to prevent a breach of the peace and she was taken outside to a Police van, with the Police arranging for Karen’s son to be taken to his grandmother’s house.
Meanwhile PC Percival spoke to Karen, who was now in the rear ‘cage’ section of the van and told her that if she calmed down and cooperated, she could be de-arrested. Karen, who was traumatised at being handcuffed in her home and separated from her young son on Christmas Day, angrily replied that she would be making a complaint and demanded the Officer’s name and number.
A mere matter of minutes later, PC Percival informed Karen that she was now also under arrest on suspicion of a Section 47 assault occasioning actual bodily harm upon her son (i.e in relation to the marks upon his neck).
Karen was utterly devastated by this false accusation, which appeared to have come completely out of the blue – and quite possibly in response to her threat of a complaint against the Officers for their initial arrest of her (for breach of the peace).
As the Complaint Report later detailed –
[Karen] was angered by the presence of the Officers and the focus of her anger was directed at them and no one else. It seems that she was arrested for not engaging rather than an imminent risk of violence.
What is difficult to reconcile is why [Karen] was arrested for assault when the evidence had not changed, and the Officers believed it was a rash, judging by the BWV [Body Worn Video]…it would seem that the further arrest was a reaction to the fact that [Karen] would not accept the offer of being de-arrested.
The Complaint Investigation Report also conceded that my client’s arrest for breach of the peace was deeply flawed in that the Officers at the time clearly considered she could be more or less immediately de-arrested; her anger was directed at the Police Officers and no one else and therefore once the Officers left, the ‘breach’ would have been over. Karen should have been released at this point regardless – with any concerns for her son’s welfare because of her alleged ‘intoxication’ having been addressed by the involvement of his grandparents – but her arrest was instead not only continued but now escalated to include accusations of her having physically assaulted her own son.
The Complaint Investigation therefore quite rightly concluded that PC Percival’s conduct was unacceptable.
Because of this unacceptable conduct, Karen had to undergo the deeply traumatising experience of spending Christmas Day not only separated from her young son but in Police Custody (for almost 12 hours) and falsely accused of having harmed him, when all she had done was to reach out to the Police for help, out of concern for his welfare.
On 7 January 2022 my client was fully exonerated when she was informed that there would be no further action against her in respect of any offences arising from this matter.
It is understandable that the Police have to err on the side of caution when it comes to protecting minors, but the truth of the matter here is that at the time of their initial visit the Officers appeared entirely satisfied that there was nothing sinister about the marks to Karen’s son’s neck – and indeed sought to reassure her that it was indeed only a rash. For the Officers to then twist these facts so as to justify their arrest and continued detention of my client, when she became angered at their accusation that she could not look after her son because she was intoxicated, was in my opinion a wretched and despicable abuse of power and one which risked causing deep mental scars to Karen and her young son, had the false accusation not been fairly swiftly dropped.
Karen instructed me and I pursued a claim on her behalf against Merseyside Police in respect of her wrongful arrest, in regards to which the Police admitted liability and have now paid Karen a five- figure damages settlement, plus her legal costs.
Barely a day goes by at the moment without a new story about yet another Police Officer charged with sexual offences – generally the targeting of vulnerable women, often domestic violence victims, whom the Officer has come into contact with and whose suffering he seeks to exploit for his own sexual gratification. This form of abuse of power has now been revealed to be frankly endemic in our Police Forces and all too many women who call 999 risk inviting emergencies into their lives in the form of abusive/exploitative Officers.
One such victim of Police sexual harassment was my client Laura, whose case I have recently concluded.
In late 2020 Laura had broken up with her current partner, Peter. Unlike some of Laura’s previous partners, her current partner was not physically abusive to her, but he had become unfaithful, and he had posted malicious content about Laura on social media. Laura has a past history of suffering domestic violence having been physically abused by one former partner and raped by another. She also suffers from the chronic pain condition fibromyalgia and has had past mental health difficulties including anorexia, depression, and anxiety.
The Police had been contacted to come and collect Peter’s belongings from Laura’s flat as she was scared of meeting him again. As a result, Laura was contacted by PC Long of Suffolk Constabulary, a married officer of some 22 years Police service. PC Long was made aware of Laura’s vulnerability, including that she had experienced suicidal thoughts in the past.
Over the next few weeks PC Long exchanged emails about her matter. Laura never met PC Long in person and initially found him polite and professional in his dealings with her. In February 2021, however, PC Long provided his work mobile phone number and suggested that the two of them communicate by this form; thereafter, his messages to Laura became increasingly personal, suggestive and ‘flirtatious’. The messages would imply that he was often in the vicinity of her home and could visit her for “a cuppa”. The officer was aware that several of his text message exchanges with Laura took place whilst she was drinking alcohol. One such message from PC Long suggested that he “Fingers crossed might be lucky enough to meet u sometime to see ur cheeky and maybe wild side?” Further references in the officer’s messages to having “fun” with Laura but not wanting anything “serious” made it clear that he was seeking a sexual encounter.
Laura became extremely distressed and worried by this tirade of messages from an Officer who was grossly abusing his position as a Public Servant and treating her as a sex object. She contacted the Police about what was happening, and the text messages immediately stopped.
PC Long was then investigated by the IOPC and found guilty of gross misconduct at a hearing in January 2022 – but was punished only with a (final) written warning and he therefore remains at the present time a serving Police Officer. This was despite the misconduct panel finding that PC Long had attempted to establish a sexual or improper personal relationship with Laura, who was clearly vulnerable to his abuse of trust and power.
I have now pursued a claim for harassment/ misfeasance in public office on behalf of Laura against Suffolk Constabulary, and she has been awarded £10,000 damages plus her legal costs.
In regard to the original purpose for which the Police had made contact with Laura, the collection of her ex-partner’s belongings – this task was eventually delegated to a female Police Officer. Of course, it should never have come to this; it is outrageous that Laura, like so many other women have been put in the position of being preyed upon for sex by male Police Officers after turning to the Police for help.
Laura’s mental health was improving up until the time that she had contact from PC Long, but the Officer’s behaviour plunged her back into depression to such an extent that she became tearful most days and felt almost housebound by her fear and mistrust of men.
Sadly, the lack of serious punishment for PC Long despite the misconduct findings against him is not an outlier: Freedom of Information requests widely reported upon in October 2021 revealed that 52% of Metropolitan Police officers (43 out of 83) found guilty of sexual misconduct between 2016-20 were allowed to keep their jobs, a pattern which repeats, sometimes to an even more extreme degree, across the other Forces of England and Wales.
What will it take for this form of despicable abuse of power to be rooted out of our Police Forces? Do we need to go to the extent of having all-female Police units dedicated to dealing with domestic violence victims because their male colleagues simply cannot be trusted not to take advantage of vulnerable women? That is the conclusion that seems to present itself, if those with the power to drive such behaviour out of the Police Service – by sending a message of ‘one strike and you’re out’ to male officers generally – decline to take that opportunity.
Delays and disruptions to many people’s summer holiday plans have been in the news recently as climate change, post-Brexit borders, and the post-Covid travel industry’s problems combine to create backlogs, queues and cancellations at airports, railway stations and ferry terminals.
A far worse experience than lost luggage or hours of waiting afflicted my client Tom Smith, however, when he was subjected to an unlawful arrest at Manchester Airport earlier this year.
One evening in April 2022, Tom flew into Manchester Airport from Amsterdam after a short break with a group of friends.
Having passed through passport control, Tom was approached by several police officers, who advised he was under arrest and handcuffed his hands behind his back. Tom complained that the handcuffs were too tight but was ignored.
Humiliatingly, the arrest took place in front of Tom’s friends, and one of the officers took it upon himself to inform Tom’s friends that Tom was being arrested for failing to surrender at court.
Tom was then led through the airport. Adding to his distress, a number of fellow passengers recorded his arrest and escort through the airport on their phones; he couldn’t believe what was happening to him and was very conscious that everyone witnessing this – both strangers and his friends – must be thinking “There’s no smoke without fire”. He was worried that his face would be all over social media, having been made subject to such a public ‘parade of shame’. Tom was then transported to Cheadle Hulme Police Station.
Tom had never previously been arrested and was shocked and frightened by events. He had recently received a fine for speeding and could only think that his arrest must relate to that.
At Cheadle Hulme Police Station, Tom established that he had been arrested in respect of an outstanding warrant for failing to attend Tameside Magistrates’ Court earlier that month. Tom sought to explain that this must be a mistake, but to no avail.
Tom was processed and searched and then advised he would be detained overnight and produced before the court the next day.
After several hours in custody, Tom was taken for fingerprints whereupon it was established that there had indeed been a mistake; the custody record contains the following entry at 4.18 a.m-
DP [Detained Person] has now been printed and is no trace on the fingerprint system. It appears the wrong male has been arrested. To be released asap. Mancro will be informed to re-circulate the wanted male.
Eventually, in the early hours of the morning, Tom was released from custody having been held against his will for nearly 5 traumatic hours.
Tom found his experience in custody extremely distressing. I am now in the processing of commissioning medical evidence to assess the full extent of the psychiatric impact this incident has had upon him; there is no doubt however that it has caused Tom great anxiety and embarrassment in both his personal and professional lives: his relationship with his girlfriend was strained, and he felt very stressed about having to tell his boss that he had been arrested- albeit quite incorrectly. I will be seeking a significant compensation award from Greater Manchester Police for what appears to have been a gross error on their part, mixing up Tom’s data/ identity with that of the ‘real’ wanted man.
This is far from being the first “mistaken identity” arrest at an airport in which I have been instructed – despite the deeply ironic fact that airports are the one location where people habitually carry their passports and thus where their real identity is very easy to ascertain. If you or anyone you know has suffered in a similar fashion, please contact me for advice and expert representation.
My client’s name has been changed.
Update
I am pleased to confirm that, after the institution of Court proceedings, Greater Manchester Police agreed an out-of-court settlement of £10,000 together with Tom’s legal fees.
I am pleased today to provide an update on a case which I first blogged about in December 2020, regarding Police abuse of ‘Coronavirus powers’ during the early days of the Lockdown. In that blog, as the case was ongoing, I identified my client only by the pseudonym of “Dwight”. In this blog I will refer to him by his real name of Desmond Acquah.
Desmond is a Black man and a British Army veteran who gave almost 10 years of service to this country, including a tour of duty in Afghanistan, service which ultimately saw him being discharged from the army on medical grounds.
At the beginning of the Coronavirus Lockdown in March 2020, Desmond was continuing to serve the British public at risk of his health as a key worker on the railway network, at a time of surging Covid infections.
At around 2 am on 26 April 2020, Desmond was just arriving home in Portsmouth after a 12-hour shift at work, and wanted nothing more than to check on the welfare of his pregnant partner, and then get his head down and sleep.
However, as he drew close to his home, Desmond noticed a marked Police van begin to follow his BMW car.
Desmond pulled up in his normal parking spot near his flat, and the van pulled up behind him.
Two Officers of Hampshire Constabulary, including PC Thisby, then alighted from the van and approached Desmond’s car.
They demanded Desmond’s name and he asked them, “Why, what’s going on?”
PC Thisby replied, “Well because you’re out and about at 2 o’clock in the morning, there are restrictions in place on movement at the moment because of Coronavirus and so I am just asking for your details”.
Desmond explained that he was a key worker and had just come from work.
PC Thisby then asserted that he needed Desmond’s details to check that the Claimant was a key worker and that if he refused Desmond could be arrested for contravening the Coronavirus rules. This was nonsensical as there was no ‘database’ of key workers that the Police had access to, and Desmond was simply not under any obligation to provide his name.
Desmond considered the Officer’s request unreasonable and intimidatory. He explained that he had just come from work on the railways, he was tired and wanted to go to bed. He removed from his car a small ruck sack, his work clothes, boots, and a coffee canister.
PC Thisby then threatened to arrest Desmond for failing to provide his details under the “Health Protection Coronavirus Restrictions Regulations 2020”.
Desmond felt harassed and decided to call his manager for assistance. At this, PC Thisby grabbed Desmond’s jacket/right arm and said, “Put your phone down. You’re under arrest”.
Desmond protested “For what? You shouldn’t be touching me” to which PC Thisby replied, “For failing to provide your details”.
Both Officers now forcibly restrained Desmond and pushed him up against a wall. The second Officer applied handcuffs to the Claimant’s right wrist.
Desmond was incredulous and immediately said “Take the handcuff off, I will give you my name”. The second Officer said “Just give us your name first” to which Desmond advised his name and again requested the Officers to remove the handcuffs. The Officers agreed and the handcuff was now removed. Desmond pulled away and accused the Officers of harassment.
However, PC Thisby persisted in asking for Desmond’s “details” and demanded his address.
Desmond was now highly agitated by reason of the Officers’ actions and the conversation continued as follows:
Desmond: “You have got no fucking reason. I am going to take your fucking number, you have got no fucking reason to arrest me. I just fucking finished work”.
PC Thisby: “Do you want to get arrested?”
Desmond: “Arrested for what? I’ve been up since fucking 7, I have done a fucking 12 hour shift”.
PC Thisby: “Desmond, I have warning you now if you carry on like that you will be nicked for a Public Order Offence”.
Desmond: “Well that’s what you wanted ain’t it?”
PC Thisby: “Say again”
Desmond: “I just driving from work, I am going to fucking….”
PC Thisby: “Calm down”.
Desmond: “Calm down, what you say fucking calm down for? What cos you’re a Police Officer you think you’re what, the law. You’re a fucking citizen yourself. I just fucking finished 12-hour shift, I am tired, I want to go and get my head down”.
PC Thisby: “Desmond give me the rest of your details now or you are definitely going to be arrested”.
Desmond: “What, I have given you my name, what else?”
PC Thisby: “Okay, let’s have your name, your address and your contact details because you are going to be reported for breaking the Coronavirus rules as I explained to you”.
Desmond: “No, what, what am I speaking Swahili to you?”
PC Thisby: “Don’t spit at me when you are shouting”.
Desmond: “I am not spitting at you”.
PC Thisby: “You are shouting and you are spitting. Give me your details so I can report you.”
Desmond: “I have just fucking finished work, what part of that don’t you understand? I have just fucking finished working”.
At this, Desmond went to pick up his belongings and walk away, but the conversation continued:
PC Thisby: “Desmond don’t walk away from me”.
Desmond: “Breaking what Coronavirus? What am I supposed to do, fly to my bedroom after work?”
PC Thisby: “Right you’re nicked. Caution still applies”.
Desmond: “What? What applies?”
PC Thisby: “You’re under arrest”.
Desmond: “For what?”
PC Thisby: “For not giving me your details under the Coronavirus rules”.
Desmond: “I said I have given you my details, I am going to record this because this is fucking harassment”.
Desmond now attempted to record events on his phone, but the officer sought to take the phone from him. Desmond backed away into the street and PC Thisby called for backup.
PC Thisby now escalated matters further by drawing his PAVA spray cannister, pointing it directly at Desmond and ordering him to get down on the ground.
Desmond was incredulous and protested “Are you kidding me?”
However, under duress, Desmond now turned to face the wall with his arms raised. PC Thisby again ordered Desmond to get down onto the ground and to put his arms behind his back, as if he was dealing with a suspected bank robber, rather than a tired key worker who was just trying to get home.
Desmond accordingly dropped to his knees and put his hands behind his back and was then handcuffed to the rear by the second Officer.
Desmond again asserted that this was harassment, but now confirmed his home address.
Unfortunately, Desmond’s ordeal still wasn’t over. He got to his feet, whereupon PC Thisby took hold of Desmond’s right arm and announced that he was to be searched because the Officer wanted to establish Desmond’s identification. Desmond protested and accused the Officer of being racist.
PC Thisby now pushed Desmond towards the wall with both hands and held him against the wall. Desmond again confirmed his name and address and said, “You started fucking roughing me up. For what, doing a 12-hour shift. I just finished work”. The second Officer now began to search Desmond.
Two more Officers, a male and a female now arrived, and began to participate in Desmond’s continued unlawful detention.
Desmond made reference to his work belongings nearby and continued to remonstrate as to the Police action against him, to which the fourth Officer shouted at Desmond, “At the moment there is a virus going around killing thousands of people so shut up and stop behaving like this”. Desmond replied, “No, don’t tell me to shut up….” But the fourth Officer continued harangued him, saying, “You’re behaving like a fucking idiot at the moment, shut up”.
Both PC Thisby and the fourth Officer continued to manhandle Desmond and the conversation continued as follows:
PC Thisby: “Desmond we gave you every single opportunity”.
Desmond: “You gave me what opportunity?”.
PC Thisby: “To try and get your details”.
Desmond: “What opportunity, what opportunity? I have just done a fucking 12-hour shift”.
PC Thisby: “No one is disputing that Desmond”.
Desmond: “Why are you pushing me against the wall”.
PC Thisby now lost his temper and shouted at Desmond, “Because I don’t want you spitting in my face when you’re shouting, you stupid man”.
PC Thisby now directed that Desmond be put in the back of a Police van and he was forcibly marched, bent over, to the van, with Officers continuing to manhandle him.
Desmond felt as if he was going to pass out and asked the Officers to allow him to stand up straight and to then sit down. The Officers advised that he would be allowed to stand up but not sit.
A fifth officer now attended and spoke to Desmond. Desmond again advised his name, that he worked on the railways and that his arrest was unlawful. He was highly agitated and distressed.
PC Thisby directed the second Officer to continue his search of Desmond. Whilst Desmond was being searched, PC Thisby radioed the control room and advised that he made an arrest for a Public Order offence and resist arrest. Desmond overheard and immediately challenged this, saying “What arrest, a Public Order offence, for what, for what?”. He received no explanation.
PC Thisby now stated to Desmond that if he ‘calmed down’ he would be released. Desmond remained highly distressed as a result of what the officers had done to him, convinced that he had been adversely treated because of this race and replied, “You don’t understand, you haven’t even said sorry, do you know what I mean. Why do I deserve this treatment?”
PC Thisby then resorted to seeking advice from his Sergeant, and made the following radio call:
“Alright Serg, I need advice. So we stopped the car, guy got out, he stopped on his own accord, I explained why I was talking to him because of Coronavirus etc. and asked him for his details which he then refused so far. He has then got really animated. I’ve explained if he didn’t give us his details I couldn’t clarify the fact that he was a key worker or not and I report him for the whole Coronavirus thing and in order to report him I need his details, if he wouldn’t give his details he’d end up getting nicked.
So, we have detained him eventually, I have threatened him with PAVA. Another call sign has arrived and in the process of him holding against the wall someone from another call sign sworn at him so we have nicked him for resist arrest and public order offence but now because an Officer has sworn at him does that count as a public order offence.”
Following this consultation, PC Thisby approached the Claimant and advised that he had been “Arrested for a Section 4 Public Order Offence and Resist Arrest”. Desmond was then transported to Copnor custody centre.
According to the Custody Record, Desmond had been arrested at 02.20 for using “threatening/abusive/words/behaviour with intent to cause fear/provoke unlawful violence” and for “obstruct/resist a constable in the execution of duty.”
The circumstances of arrest were described as follows:
“Male stopped to give an account as to why he was out. Because aggressive initially refused details refused COVID-19 questions. Initially arrested for failing to provide details, when details obtained, remained being aggressive towards officers and arrested S4POA and resist arrest.”
Desmond was then processed and obliged to provide a fingerprint and DNA sample and be photographed and was then locked in a cell, feeling highly agitated and distressed.
After several hours, a senior officer viewed the arresting officer’s body worn camera footage and concluded that he had concerns as to the validity of the arrest and, on that basis, directed that Desmond should be immediately released. The officer’s account was recorded as follows:
“The initial reason for the encounter is clear that the officer is simply attempting to identify the reason that the detainee was out.
Although the detainee is quite angry immediately an answer is quickly given that he has just returned from work and is on his way home; he points to where his address is within a nearby block of flats. He shows his fluorescent work gear and states that he has been working on the railways for 12 hours and wants to go home.
The arresting officer engages and attempts to explain the reasons for the encounter. He states that one of the reasons to be out of home is for key workers to get to work. The detainee states that he is a key worker, he is working on the railways. The arresting officer asks for the detainee’s details to confirm that he is a key worker, the detainee refuses to provide these. The detainee is becoming more and more animated.
Eventually the detainee is arrested for failing to provide his details to the officers and attempts to pull away from them. He continues to remonstrate very vocally but does eventually provide his name. He is released whilst the officers then continue to attempt to obtain further details from him. He is still very angry about the whole incident and is shouting loudly in the street. Having heard the language used and watched the behaviour the behaviour might constitute an offence under s5 POA if there are MoPs present who might be caused alarm/distress however my concern is that the reason for wanting the detainee’s details (to show he was a key worker) is not actually one of the reasons that people are allowed to leave their house. The actual legislation is that people are allowed to leave home for the travel to work but only if they cannot work from home. In this case based on the male’s disclosure that he has just finished work on the railway and that he shows his hi-viz clothing it would be reasonable to assume that the detainee was indeed on his way home from work. He highlighted that he was going home and pointed the address out and it can be argued that there was no requirement for these additional details (certainly not for the reason presented in any case) and that it was clear the male was going home, was there any need for further interaction?
All subsequent offences then stem from this arrest so my view is that given the concerns over the validity of original arrest I do not believe that it is right or appropriate to take action for his later anger. Whilst I don’t think his language was acceptable it can be justified in the context that he felt (rightly in my view) he had been wronged and was venting his anger over this. He does not threaten violence towards anyone at any point.
I have therefore released him without charge. He was very angry and agitated on release, initially refusing to leave and wanting to be charged with an offence. I explained that I would not do this as I did not believe he had committed an offence. He did eventually leave. I have provided a taxi on account to get him home and supplied my details along with those of the officers dealing with the incident that he requested.”
Desmond was finally released at approximately 06.25 having been in police custody for 4 hours 5 minutes.
As the highlighted section in the senior officer’s review shows, common sense had at last prevailed – but it should never have come to this.
In a situation where emergency ‘curfew’ type powers had been granted to the Police under the Coronavirus Regulations – hastily drafted and unfamiliar to the Police – Officers should have proceeded with caution in order to ensure that they were not exceeding the limits of their powers. This especially applies in a fairly straightforward case such as Desmond’s – in that he had given an account of being a key worker substantiated by his work gear. PC Thisby and his colleagues should have simply walked away at that point, but unfortunately persisted in trying to, unnecessarily and unlawfully, extract all of Desmond’s identity details – as if we lived in a ‘papers please’ Police state. The pride of the Officers then appears to have got in the way of their de-escalating the situation; they apparently wanted to flex their lockdown muscles and responded in the typical manner which Police Officers do when their presumed authority is challenged.
As I have said, in a situation that was difficult for everyone – but where the legislation that had been put in place was not about unnecessarily criminalising normal activities, but simply trying to keep people safe – the Officers could and should have behaved with tact and respect towards Desmond, and if necessary, simply watched him walk back through his own front door. Instead, they manhandled and handcuffed him, pulled him off the street, drove him several miles to custody and locked him in a cell, after forcing him to have close contact with at least half a dozen people. How was such an action at all in keeping with the ethos of the Regulations which the Police were supposed to be enforcing i.e social distancing?
As I pursued this claim on behalf of Desmond, I then encountered a second manifestation of obstructive Police pride, at a much higher level. The Chief Constable of Hampshire admitted legal liability for Desmond’s wrongful arrest and the assault which he had suffered at the hands of the Officers but refused to grant Desmond’s reasonable request for a formal apology from the Chief Constable herself or one of her senior Officers. Indeed, in an attempt to secure such an apology, which was of importance to Desmond who felt morally outraged by what had been done to him, Desmond offered to settle his claim for a significantly lower sum of money if it was accompanied by such an apology.
Hampshire Constabulary refused to take that offer, instead agreeing a financial settlement only, in the sum of £30,000 damages, plus legal costs.
Although this was an excellent outcome for Desmond in financial terms, and he was further vindicated by the Police admission of liability, I am perplexed by the decision of the Chief Constable to refuse an apology letter and instead write out a bigger cheque from what is, at the end of the day, public funds.
Rather than saying “sorry” for this gross over-reach of power, and attempted criminalisation of a heroic key worker, the Chief Constable was prepared to put public money where her mouth should have been.
Iain Gould, solicitor and specialist in civil actions against the police.
“We consider it perfectly possible to assess quantum [i.e the value of the claim] in the current case at this stage and in our experience it is possible to settle the vast majority of wrongful arrest claims swiftly following an admission of liability. The representatives of both parties are very experienced with respect to claims of this nature. The length of detention is clear and the circumstances surrounding your client’s arrest not in dispute. The realistic likely outcome with respect to any assessment of psychiatric injury resulting from your client’s arrest can be predicted based upon experience of claims of this nature. Our offer has been calculated on that basis and we consider it offers our client adequate costs protection; whether it is accepted at this stage is obviously a matter for your client …..”
This is a communication which I received from the office of the Force Solicitor in response to a claim for wrongful arrest of just 4 hours for a man of relatively good character. At that time the offer of settlement which the Police had put forwards was £7,000 and it was this offer which the Force Solicitor was trying to induce my client to accept by claiming that in his experience it was highly unlikely to be beaten i.e. it offered the Police “costs protection” because my client was (in the Force Solicitor’s opinion) unlikely to achieve a higher award of damages at court.
Sadly, many Claims Against the Police are at risk of under-settlement because of the complex nature of this area of law and the robust and combative approach adopted by Police Forces and their lawyers.
When faced with such an approach, combined with an early admission of liability and an apparently attractive offer of settlement, solicitors with insufficient experience (such as those who primarily deal with accident claims), or those without ‘stomach for the fight’ might decide to fold and cash their client’s chips in early.
I, however, am proud to say that I always have in my hand those trump cards of experience, expertise and determination; the experience and expertise to properly assess the various heads of claim (length of and circumstances of detention; psychiatric impact; aggravating features and the possibility of exemplary damages) and the determination not to take an early pay out, but to see the claim through until my client has achieved the maximum realistic outcome – the financial payment that also brings with it the best sense of satisfaction and closure – the feeling that justice has been done.
Thus I advised my client and he rightly decided to call their ‘bluff’, to reject their offer of £7,000, commission expert evidence and institute Court proceedings.
The claim ultimately settled for damages of over four times that amount.
As I say, experience, expertise and determination.
You must be logged in to post a comment.