Author: iaingould

I have blogged before about the overriding importance of the necessity test when it comes to the question of the legality of an arrest [Read: Necessity Criteria: Why Failure To Consider Alternatives to Arrest is a Police Abuse of Power].

The stringency with which this test, a key safeguard of our civil liberties and restraint upon the power of the Police, must be applied in cases involving the arrest of a child was highlighted in a High Court appeal decision last month.

The watchword of the UK’s ‘unwritten constitution’ is the same word which defines the unwritten social contract that exists between the Police and the public: reasonableness and the test as to whether or not it is reasonable to arrest a child when a crime is being investigated is right and properly set at a much higher level than in the case of an adult.

The case of ST v The Chief Constable of Nottinghamshire Police [2022] EWHC 1280 (QB) concerned the arrest of the Claimant, identified for the Court proceedings as ‘ST’, in December 2011 when he was only 14 years old. 

ST was arrested just after 5.30am on 20 December 2011, in his own home, and thereafter detained in an adult cell in a Police Station for several hours before being interviewed and released on bail.  He was never charged with any offence.

The basis of ST’s arrest was an incident which had occurred some 12 days earlier on 8 December 2011, outside ST’s school.

A pupil, identified in the Court proceedings as ‘J’, snatched a mobile phone from a 12 year old girl identified as ‘EB’.  ST was nearby and came over and asked if EB was okay and then told her he would go and get J, before running off after the other boy.

EB and her mother then drove in their car and located J and ST. J returned the phone to EB but without its pink case or sim card.  The Court noted that the value of the pink case was approximately £5 and the sim card was effectively valueless, as it was on contract and was stopped immediately. 

In the following days, the school decided that J should be excluded as a result of his theft of the phone but the school was equally satisfied that ST had done nothing wrong.

However, on 19 December 2011 J was arrested by PC Lilliman and when being interviewed by the Police J alleged that it was ST who had told him to steal the phone.  He alleged that it was ST who had retained the sim card and phone cover.  As Mr Justice Cotter observed in the Appeal Judgment – “I pause to observe that this would have been a curious step as the value lay in the phone not in the pink case and EB’s sim card”.

PC Lilliman then decided that ST should also be arrested. He recorded his decision as follows –

“Decision taken to arrest ST the next day, to search for the stolen property before he left for school.  Email sent to nightshift to arrest ST and search for outstanding property and I would deal with him in the morning when I started work at 8am”.

The task was allocated to PC Laughland and PC Turnbull who were working the nightshift.

It is important to note here that there is no record of any consideration by the Police as to whether instead of arresting ST, a search warrant could have been obtained and/or a voluntary interview requested.

The low value phone case, and the apparently worthless sim card, had been taken some 12 days previously whereas the valuable item – the mobile phone – had almost immediately been returned to EB. It clearly struck the appeal Court that it was very far fetched to assume both that ST had in fact taken the case and card and that he would have retained, rather than discarded, these very low value items. The Court also noted that the school’s own investigation had identified J as the perpetrator and expelled him, and not ST.

Nottinghamshire Police, on the other hand, appear to have had a tunnel-vision focus on the fact that the theft of the phone met the definition of the “very serious indictable offence of robbery” rather than on the practical details of the age of those involved, the minor nature of the offence and the slim chance that the low value ‘missing’ items were in ST’s possession.  In other words, the decision to take the draconian step of arresting ST appears to have been taken without any adequate consideration of –

• ST’s welfare given his young age (taken in the context of the low level of seriousness of the alleged offence);

• the fact that the offence had occurred 12 days previously; and

• that ST would not be difficult to locate if the Police did indeed want to interview him. 

As Mr Justice Cotter observed, it appeared that the timing of the arrest, in the early hours of the morning, with the deliberate intention that ST would then be ready and waiting in a cell when PC Lilliman came on duty at a more ‘civilised hour’ that morning – was largely, if not solely, for the Officer’s convenience.

Indeed, the Judge at first instance (HHJ Godsmark QC, sitting in Mansfield County Court) had – metaphorically – spilt his coffee when hearing Police witnesses give the glib excuse that 5.30am arrest visitations were common practice because it was a ‘good time to catch people at home’.  HHJ Godsmark found it “extraordinary” that the arrest of a 14 year old boy was tied to the convenience of a particular Officer’s shift and stated –

“In my time sitting as a Judge in both civil and criminal jurisdictions I have not heard of such a thing before. I really wonder how many members of the community would agree with such an arrest”.

That final sentence goes very much to the heart of the matter here, in my opinion – the social imperative that the Police exercise their powers in an objectively reasonable manner so as to ensure the good health of the ‘policing by consent’ relationship between UK Police and public.

When confronted by Police Officers at the door, in these shocking circumstances, seeking, rather grandiosely, to arrest his son for ‘robbery’ the Claimant’s father tried to reason with PC Laughland – offering to bring ST to the station to answer any questions the Police had at a more reasonable hour that morning.

Not only had ST been awoken in these distressing circumstances, but also his four siblings as well, and it is understandable that ST’s father would have been very upset at what was unfolding. However, it was clear that he kept a level head and made a sensible suggestion to try to resolve the situation. 

Indeed, the challenge and alternative suggestion made by ST’s father appears to have given PC Laughland pause for thought, as at this point she telephoned her supervising Officer for advice, but was directed to continue with the arrest. 

PC Laughland’s colleague PC Turnbull later commented –

“I did have my own reservations about attending at such an hour considering the age of the boy and the fact that the offence was 12 days old but such ‘arrestograms’ from other departments are common place and tend not to be questioned. I found it hard not to agree with ST’s dad at the time, but we were stuck in an unfortunate situation”.

Accordingly, ST was subject to the indignity of being arrested and he was taken by the Officers to Bridewell Police Station and detained alone in an adult cell on suspicion of robbery because “there was no other place to put him”.

Ultimately ST was detained for approximately 6 hours, during which time, some 3 hours after his arrival in Custody, he was interviewed in the presence of his father (acting as Appropriate Adult) and a solicitor and shortly thereafter released.

In January 2012 it was decided that no further action would be taken against ST, but the harm of course, had already been done.

Code G of the Police and Criminal Evidence Act (PACE) 1984 contains the following clear direction at paragraph 1.3 – The use of the power [of arrest] must be fully justified and Officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means.

In other words, arrest must never be used simply because it can be used.  As Sir Brian Kerr LCJ said in Re Alexanders Application for Judicial Review [2009] NIQB 20 –

“…it is difficult to envisage how it could be said that a Constable has reasonable grounds for believing it is necessary to arrest, if he does not make at least some evaluation as to whether voluntary attendance would achieve the objective that he wishes to secure”.

The criteria for a summary arrest – as opposed to either the more formal process of applying for an arrest (or search) warrant, or the more informal alternative of a voluntary interview – could be satisfied under the Code G Necessity Criteria if there was evidence that, for example, the suspect was likely to collude with others or to hide or destroy evidence if he was not immediately taken into Police custody.  Those factors simply did not apply on any reasonable analysis of the facts of ST’s case.

As Mrs Justice Thornton stressed in Commissioner of the Police for the Metropolis v MR [2019] EWHC 888 (QB) –

“The test of necessity is more than simply ‘desirable’ or ‘convenient’ or ‘reasonable’.  It is a high bar, introduced for all offences in 2005 to tighten the accountability of Police Officers”.

Despite all of this, as well as his own evident discomfort at the heavy handed nature of the ‘dawn raid’ carried out by Nottinghamshire Police in this case, the Judge at first instance, His Honour Judge Godsmark QC ruled in favour of The Chief Constable by deciding that the arrest necessity criteria were satisfied. 

In his reasoning, Judge Godsmark appeared to fall into a trap of circular logic by deciding that once the Police had knocked on the door of the family’s home at 5.30am that morning “the die was cast” because even though they were now presented with the reasonable offer from ST’s father to bring his son to the police station later that morning, Judge Godsmark felt it was nevertheless lawful for PC Laughland to continue with her intention to arrest ST because to fail to do so was to lose the complimentary power (granted by Section 18 of PACE) which allows Officers to compulsorily and lawfully search the arrestee’s place of residence for evidence associated with the crime.  The Judge’s reasoning was that for the Officers to withdraw at that point without making the arrest would have given ST the opportunity to dispose of the evidence of the crime (if indeed he had committed it).

Nevertheless, HHJ Godsmark did appear troubled by his own finding and again reiterated that the arrest of a 14 year old boy, with no criminal record, at 5.30am in the morning, did not sit comfortably with him, and even whilst finding against ST, Judge Godsmark enunciated that very principle which should be the central ethos of UK Policing and the lens through which the exercise of Police powers should always be scrutinised –

“In a country where it is generally said that Policing is by consent of the community, I really wonder how many members of the community would agree with such an arrest”.

                The Appeal

ST’s appeal against the rejection of his claim, was cogently advanced by Ms Sarah Hemingway of Garden Court Chambers on multiple grounds, of which the key lines of argument were as follows:-

• There was no contemporaneous evidence as to why it was thought necessary to arrest ST and thereby circumvent the usual statutory safeguards in obtaining a search warrant, or otherwise inviting him to a voluntary interview, prior to the Officers attending at the family’s home.  In the circumstances, the Chief Constable had failed to prove that there were reasonable grounds for ST’s arrest prior to the attendance of PC Laughland at his home. 

• Furthermore and following on from this, if there were no reasonable grounds to believe an arrest was necessary up until that moment, then it was perverse in the extreme to find that the arrest could have been made lawful and necessary by the Officers’ own mistakes (i.e. the Officers’ prior decision to attend at the family home at 5.30am thus ‘alerting’ ST to the fact that they wished to interview him and search his property).  Yet it was this very justification that HHJ Godsmark appeared to have applied such weight to in his own Judgment. 

In his detailed analysis of the appeal, the High Court Judge Mr Justice Cotter stressed the crucial importance of the test of arrest necessity noting that it is designed to protect the public from autocratic decisions and that arrest must never be used simply because it can be used (or is simply convenient for the progression of an investigation) –

“In the present case there was a central and obvious consideration; the Appellant was a child. In my judgement the Judge was led into error by submissions which, to a significant extent, equated children with adults…the Judge should have concluded that the approach of the Officers failed to factor into the assessment of the necessity the best interests of a 14 year old child.  Where time for reflection exists, the test of necessity for arrest and detention requires anxious scrutiny of the fact that a child is involved.  This approach is consistent with the duty under the Children Act 2004 and wider obligations”.

(Paragraphs 94 – 95)

In this country the treatment of children in detention is governed not only by our domestic law but also by the UN Convention on the Rights of the Child (UNCRC) which the UK has signed and ratified in accordance with our longstanding traditions of being at the forefront of development of the global gold standard for human rights.

Article 3 UNCRC provides that in all actions concerning children undertaken by public institutions, Courts of Law, administrative authorities and legislative bodies the best interests of the child shall be a primary consideration and, in particular, Article 37 requires that “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”. 

The requirement that the best ‘interests of the child’ should be integral to the decisions and actions of public bodies (including of course the Police) is enshrined in Section 11 of the Children Act 2004.

In any Police Officer’s consideration as to whether or not it is necessary to exercise their power of summary arrest upon a person, in accordance with PACE Code G, the fact that that person is a child should be ‘front and centre’ (Mr Justice Cotter’s words) in that consideration – and an assessment of whether a less intrusive step than arrest is a practical alternative, must be undertaken. 

Indeed, although the Chief Constable of Nottinghamshire appeared to be unaware of this fact for the purposes of the claim brought by ST, the same principle is clearly endorsed by the College of Policing in its Authorised Professional Practice Guide on the arrest and detention of children and young persons –

“Officers must take into account the age of a child or young person when deciding whether any of the Code G statutory grounds for arrest apply.  They should pay particular regard to the timing of any necessary arrest of children and young people and ensure that they are detained for no longer than needed in accordance with paragraph 1.1 of Code C.  Officers should avoid holding children overnight in Police cells unless absolutely necessary”. 

Applying these highly important guidelines and principles to the facts of the specific case the appeal Judge found –

• PC Lilliman did not appear to have weighed up whether there was an alternative to arrest, specifically obtaining a search warrant and/or seeking a voluntary interview.

• An arrest had to satisfy the high bar of being necessary, not just convenient and given the evidence, HHJ Godsmark QC should, on an independent and objective analysis, have reached the conclusion that PC Lilliman had failed to clear it.  This was therefore a serious mistake by the Judge at first instance. 

• The overarching mistake made by the actual arresting Officer PC Laughland (who made the ultimate decision to arrest, albeit acting on PC Lilliman’s instructions) was that ST being a teenager (14 years old) somehow meant that he was not to be considered as a child.

• Furthermore, the limited information set out in the ‘arrestogram’ about the offence/investigation could not have amounted to sufficient detail to provide PC Laughland with reasonable grounds for belief in the necessity of arrest – “An Officer can not ‘play safe’ and arrest someone because given all the circumstances as known to others it may be necessary” (Paragraph 110).

• Yet further, insufficient consideration was taken to ensure that a 14 year old child was detained for no longer than needed.

• The offer by ST’s father to bring him to the station voluntarily at a more reasonable hour that morning was an obvious practical alternative to arrest and yet further – the Officers present at the house, and also the more senior Officer who they consulted, failed to consider the obvious option of asking ST’s father to allow them to undertake a search of his son’s bedroom with the family’s consent and without ST having to be arrested – ST after all was only 14 and therefore had no power to prevent a search if his father, the owner of the house, permitted it (which on the facts available it seems highly likely he would have done so as to avoid the unnecessary stress and stigma for all concerned of his son being arrested and taken into police custody). Instead, the Officers in fact gave no thought at all to achieving the central objective of a search without arrest.

In all the circumstances – and not pulling any punches – Mr Justice Cotter concluded “I cannot see how… the [first] Judge could have found that reasonable grounds existed for the belief that arrest was necessary”.   He therefore granted ST’s appeal, labelling the Police decision to arrest as “lamentable” and without due regard for the welfare of a child.

I very much applaud this Judgment in which the High Court has not only criticised the lazy and ‘glib’ policing which led to a child’s unlawful arrest, and reproved the Police for their tendency to treat teenagers as if they were adults, but has also sent a timely reminder to the rest of our civil justice system that it is the duty of lawyers and the  judiciary to ensure that the exercise of policing power is always balanced by the responsibility to be reasonable.

The IOPC – National Stop and Search Learning Report April 2022 (page 19) states as follows  –

The Code of Ethics describes an expectation that Officers will report, challenge or take action against the conduct of colleagues which is formed below the standards of professional behaviour. Officers must never ignore unethical or unprofessional behaviour by a policing colleague, irrespective of the person’s rank, grade or role (College of Policing 2014) and Forces should be encouraging and supporting supervisors and peers to fulfil their obligation under this standard when they can see things are going wrong.

All too often however, the Code of Ethics seems to be trumped by the Code of Silence i.e. Officers operating under an implicit ‘Us versus them’ mentality failing to challenge or report unlawful conduct by their comrades.

I have previously blogged about the case of my client Ben Joynes who was viciously assaulted by (now ex) PC Mark Knights of Derbyshire Police in November 2019.  Following a minor disagreement about moving a car, PC Knights called my client a “fat cunt” and when Ben tried to complain about this, PC Knights headbutted him, pushed him to the ground, handcuffed and imprisoned him (thankfully temporarily) in the back of a Police van.

Ben found his initial official complaint to Derbyshire Police falling on deaf ears – despite the seriousness of his allegations – to such an extent that anti- corruption campaigner Rob Warner of Crimebodge stepped in to initiate a private prosecution against PC Knights in order to avoid the statutory 6 month time limit for criminal charges expiring whilst the Police erected their usual barriers of delay and prevarication.

Mark Knights was subsequently found guilty of common assault against Ben and dismissed from the Police for gross misconduct.

I am now pleased to confirm that I have settled Ben’s claim for damages arising from the incident for a substantial sum.  See Ben describe what happened on Channel 4 News (at 7 minutes 30 seconds onward).

Although Derbyshire Police had to accept liability for the actions of PC Knights, they initially sought to absolve themselves of institutional responsibility for what was done to Ben – blaming this on the actions of one rogue Officer. After all, the lawyers acting on behalf of the Chief Constable argued, Derbyshire Police had (ultimately) dealt robustly with PC Knights who was prosecuted and convicted of criminal assault and then dismissed from the Force for gross misconduct.

They therefore contended that Ben’s claim for damages should be relatively modest – reflecting only what PC Knights had directly done to him.

However, I strongly felt that this case wasn’t just about the actions of one rogue Officer but rather the complicity through inaction of numerous other Derbyshire Officers who witnessed what PC Knights did to Ben, but who then failed to intervene whether to assist my client, to arrest PC Knights himself or to report PC Knights’ conduct to their Professional Standards Department. 

• At the Trial of PC Knights at Derbyshire Magistrates Court in December 2020 PC Jennifer Salmon confirmed that she witnessed the headbutt but in her answers to the Court refused to describe such action by PC Knights as being either surprising or unacceptable. 

• PC David Naylor likewise told the Court that he heard Ben’s son state that his father had been verbally abused and headbutted by PC Knights, but PC Naylor took no action in response to this information.  Furthermore, body camera footage played to the Court demonstrated that PC Naylor attempted to justify/excuse PC Knights’ use of a headbutt against Ben. PC Naylor asserted to Ben’s son “Trust me, none of us just headbutt somebody for the sake of it”. 

• Likewise, PC Nixon (in his written statement of events) confirmed that he was aware at the scene of Ben and his son’s allegations as to PC Knights’ conduct, and yet he also took no action in regards to these complaints.

In summary, not one of the five other Police Officers who were present at the scene of this incident took any action against PC Knights at the time, nor subsequently reported his conduct, and both of the Officers who attended the Magistrates Court trial were equivocal in their evidence and refused to be drawn into criticism of their colleague. 

In my opinion, it is likely to have been the lukewarm evidence of the other Police Officers, set out in their post incident statements, which led to the Crown Prosecution Service initially refusing to prosecute PC Knights on the basis of “no realistic prospect of conviction” – a decision which Ben had to appeal under the Victims Right to Review. 

The actions of PC Knights himself were undoubtedly arbitrary, oppressive and unconstitutional – demonstrating a complete disregard for the importance of the rule of law and liberty of the person- and undoubtedly gave rise to a claim for damages; but to me it was also clear that the conduct of the other Officers present at the scene – which can best be summarised as ‘looking the other way’ in the moral sense of that phrase – was worthy of sanction by the Court, as being indicative of a Policing culture which tends to look after its own and in which Officers routinely overlook unlawful actions by their colleagues (in this case something as grossly obvious as a brutal headbutt followed by handcuffing and detention without the slightest shred of a reasonable explanation by the Officer) and/or attempt to discourage legitimate complaints. 

The other Officers at the scene uniformly failed to intervene despite flagrant criminal conduct by PC Knights – which was apparently manifest to all non- Police witnesses at the scene – not only including Ben’s son but also independent witness Simon Thompson. Nor did any of these Officers even retrospectively report PC Knights’ act of misconduct, or ever offer any frank condemnation of the same – whether when asked to provide a witness statement of the events, when interviewed by their Professional Standards Department, or in the case of two of them, during sworn testimony at Court.

It was after reflecting upon the submissions that I made on this particular issue that the Police agreed to a final damages amount of £19,950, plus legal costs, a sum which I believe to be commensurate with the wider scale of Police wrongdoing in this case. 

I trust that this outcome may also lead the Police to reflect on the much bigger picture here.  This isn’t just about the quantification of Ben’s claim for damages, but about addressing the ambient level of ‘soft’ corruption which pervades the Police profession in the form of pro-police bias and defensive tribalism and manifests all too often in Officers either failing to intervene to stop another Officer’s wrongdoing, or to report or criticise that wrongdoing afterwards. 

Ben’s faith and trust in the Police, and the rule of law in general, was severely shaken by his brutal treatment at the hands of PC Knights and this had a profound psychological impact upon him.  A psychological impact which would have been substantially minimised if other Officers had come to Ben’s immediate assistance and the handcuffs that day had ended up around PC Knights’ wrists, rather than Ben’s.

Likewise, the damage to Ben and to our society as a whole, would have been minimised had the Police led a pro-active and prompt investigation and prosecution of this ‘rogue’ Officer – rather than delaying, prevaricating and only belatedly getting behind the criminal prosecution process which had not been initiated by them, but rather Rob Warner (Crimebodge).

In other words, the Police must ensure that they Police their own ranks as diligently as they do the streets.

This week’s blog concerns a case I have recently settled that showcases three distinct police misconduct issues: old school brutality; modern abuse of police computer systems; and the chronic reluctance of criminal justice authorities to hold rogue officers to account.

“We provoked the breach of the peace…we could have sat down and spoke to him”

At the time of these events, my client Robert Clifford lived with his partner in Essex.

On the evening of 14 October 2019, Robert and his partner had an argument and she called Essex Police, alleging that he had slapped her.

PC Gardner-McLean and PC Brannan responded to the call. Upon arrival the Officers spoke to Robert’s partner at the front door and she advised that she wanted Robert removed from the house.

The Officers entered the premises at around 19.36 and found Robert in the kitchen. PC Brannan immediately pointed his taser at Robert and Robert turned to face the Officers. It was clear that he was under the influence of alcohol. At this point, Robert had his left hand in the front pocket of his hooded top, and his right hand down by his side.

Robert was told to remove his hand from his pocket, which he did, showing that he was not holding anything. PC Brannan then approached Robert and took hold of his arm.  Robert pulled away instinctively. 

PC Gardner-McLean then approached and handcuffed Robert’s right wrist.  Neither Officer had informed my client that he was under arrest, and indeed PC Brannan later said that he did not have any intention to arrest my client at this point. The force they were using against him was therefore prima facie unlawful. A struggle ensued and Robert was taken to the floor face-down, with PC Gardner-McLean’s arm around his neck.  PC Gardner- McLean was now straddling Robert on the floor.

PC Brannan then punched Robert in his jaw – described as a ‘distraction’ blow-  whilst PC Gardner-McLean pulled Robert’s right arm behind his back. PC Brannan then grabbed his left arm.

In shock and distress Robert continued to struggle, although he remained face-down on the floor. PC Brannan’s assessment (as quoted in the subsequent complaint investigation report) was that the situation was effectively under control –

“I recall PC Gardner-McLean calling for assistance. At this time the situation was no more than a struggle between Clifford, PC Gardner-McLean and myself. Knowing that back up was only a few minutes away I did not feel the need to escalate the level of force above that that had already been used…”

However, PC Gardener-McLean then took out his baton and struck Robert multiple times, first to his back and then three times to the back of Robert’s head which caused him immediate and significant blood loss.

Such was the level of violence used by PC Gardner-McLean, Robert’s partner now intervened and pulled PC Gardner-McLean off Robert, whilst PC Brannan later described his own reaction as follows-

“I did not have hands on Clifford now as I was shocked at the level of force used by my colleague and I could not personally justify any further force towards Clifford at this point.”

Bizarrely, PC Brannan, whom we might describe as the ‘good cop’ in this scenario, then decided that he would respond to his colleague’s excessive force by tasering Robert to prevent any further conflict between the two men. He later described his rationale as follows-

“I was still taken back by the level of force used by PC Gardner-McLean. I made a quick decision that I would deploy my taser at this very point to eliminate any chance at all of the situation flaring back up, as I believed if Clifford felt my colleague trying to cuff him to the rear then Clifford would take the opportunity to struggle again. My decision to taser Clifford was also based on preventing any further injuries coming to Clifford and knowing that he had a head injury that needed assessing quickly as I knew it was caused by an ‘asp’…”

Some of us might think that in fact the appropriate use of PC Brannan’s taser at this point would have been for the officer to point it at his colleague…

Robert was then handcuffed to the rear, and a tea-towel had to be used to mop up the blood coming from his head wound. Other Officers now attended including Inspector Wisbey. PC Brannan took Inspector Wisbey aside and advised that he felt PC Gardner-McLean’s behaviour had been unacceptable as PC Gardner-McLean had “drilled a baton” into Robert’s head and “split his head open.” This serious expression of concern appears to have fallen on deaf ears, however; PC Gardner-McLean was not arrested and instead Inspector Wisbey excused him from deployment for the rest of his shift on ‘officer welfare grounds’. When he himself later viewed the body camera footage, Inspector Wisbey opined that he did not consider it to show “a loss of control, or a deliberate attempt to cause injury to a person for no reason.”

PC Brannan then also took Robert’s partner aside and apologised for his colleague’s actions, explaining that the only reason that he had used his taser on Robert was because he didn’t want PC Gardner- McLean to continue to use force on him.

The Body Camera Recording of PC Lawless, who was one of the ‘back up’ officers arriving at the scene, captured PC Gardner-McLean leaving the property with the words “I’m going to have to get out of here.” – a comment the officer later claimed he could not remember making.

Other officers, interviewed for the complaint investigation process, recalled Gardner- McLean saying “I have really fucked up” and “I think I’ve fucked up and really hurt him.” – more comments PC Gardner-McLean later said he couldn’t recall.

Meanwhile, PC Brannan confessed to his Sergeant: “We provoked the breach of the peace…we could have sat down and spoke to him.”

Injury and Investigation

Robert was taken to Colchester General Hospital for medical treatment, where a (thankfully minor) traumatic brain injury was identified.

After he was discharged from hospital, Robert was then taken to Colchester Police Station. According to the Custody Record, it was stated he had been arrested for common assault and assaulting an emergency worker x 2 i.e. the Police Officers.  The arrest circumstances were said to be that my client was “alleged to have assaulted [his partner] – slapped to the face, cause no injury….  During the arrest, DP is alleged to have assaulted PC Gardner-McLean and PC Bannan.”

Following custody processing, my client was examined by a Health Care Professional and then interviewed.  Subsequently, it was decided that no further action would be taken against Robert in respect of any of the alleged assaults.

Robert subsequently lodged a complaint which was investigated by the Independent Office for Police Conduct. 

During this investigation, it came to light that PC Gardner-McLean had unlawfully accessed Police computer records regarding Robert, the incident and Robert’s complaint. Once again, it was PC Brannan who ‘blew the whistle’ about this after PC Gardner-McLean announced to him that he had discovered that the offences of “Assaulting emergency workers” (i.e himself and PC Brannan) were not going to be pursued against Robert. It subsequently transpired that PC Gardner-McLean had accessed the Police Computer system on numerous occasions to check on the progress/ outcome of the investigation, despite lacking a policing purpose to do so, and had also accessed and viewed Robert’s NHS records in relation to the injuries he had sustained at the officer’s hands. PC Gardner-McLean later tried to excuse his behaviour in this regard by claiming it came out of sympathy for Robert, stating that he wanted to “make sure he’s alright because I’m human.”

The suggestion of genuine concern for Robert’s welfare was thrown into doubt by the fact that PC Gardner-McLean also accessed records relating to other investigations involving Robert claiming that he wanted to see how other officers had treated Robert and see if there was anything he could have done differently. We may be sceptical about this rationale, and it certainly seems the IOPC were.

As a result of the brutal attack by PC Gardner-McLean, Robert was left with recurrent headaches and feelings of nausea as well as depression and a deep- seated distrust of the Police, which disturbed him.

The IOPC led investigation report was highly critical of PC Gardner-McLean’s behaviour on a number of grounds, summarising the evidence as follows –

• When officers arrived at the address Robert was calm and immediately removed his hand from his pocket when instructed to do so. PC Gardner-McLean was adamant that Mr Clifford had a knife concealed in his left trouser pocket – however PC Brannan was confident from what he could see that Mr Clifford did not have a knife. Indeed, at no point thereafter was Robert searched for a knife – and a valid question to ask is why, if PC Gardner-McLean genuinely thought at the time that Robert had a dangerous weapon concealed on him, he did not ensure that Robert was searched for that weapon.

• On arrival, PC Gardner-McLean made no attempt to communicate with Robert about the risk he posed/ establish whether in fact he did pose a risk. Furthermore, when placing the handcuffs on Robert, there was no attempt by PC Gardner-McLean to inform Robert that he was under arrest. This lack of communication/ explanation heightened tensions unnecessarily.

• PC Gardner-McLean in both his written statement and in interview under caution, claimed that he hit Robert only once to the back of his head “using not a lot of force” – however, PC Brannan described seeing Gardner-McLean strike Robert’s head three times, and this was supported by the Body Worn Video.

It goes almost without saying that the College of Police’s Code of Ethics requires that Officers must in all cases “Use only the minimum amount of force necessary to achieve the required result”. It is clear that an Officer has gone far beyond that requirement when one of his own colleagues is reporting his behaviour to other Officers in the immediate aftermath of the incident – an occurrence which we must applaud, at the same time as recognising its rarity.

Such was the level of force used by PC Gardner-McLean that he was not only investigated for gross misconduct but indeed for GBH (Section 20 of the Offenses Against the Person Act 1861).

On 20/11/19 PC Gardner-McLean was served with a Notice of Investigation outlining the following allegations:-

• That he used excessive force when he struck Mr Clifford with a baton.
• That he accessed confidential information relating to Mr Clifford using Police Computer Systems, without a legitimate policing purpose for doing so. 

PC Gardner-McLean was interviewed by Essex Police under criminal and misconduct caution on 16 December 2019 and again on 12 March 2020.

Holding the Police to Account

Despite matters being referred by the IOPC to the Crown Prosecution Service in April 2020, a charging decision was not made until November 2020 and it was disappointing, although not perhaps ultimately surprising, given the inherent bias within the criminal justice system when it comes to the policing of the Police. The CPS decided to NFA (take no further action) against PC Gardner-McLean in regards to the offences of ABH and GBH, and instead charged the officer with just one count under S.1 Computer Misuse Act for unauthorised access to data.

Following the CPS decision not to prosecute for the offences of violence, the IOPC in collaboration with the Appropriate Authority (a senior member of Essex Police Professional Standards Department) decided that PC Gardner- McLean would not even face any misconduct charges in respect of his use of force.

Eventually, even the data misuse prosecution fizzled out, with the CPS concluding it was not in the public interest to continue, and therefore offering no evidence at Chelmsford Crown Court in June 2021. PC Gardner-McLean was to receive only a ‘written warning’ for his blatant misuse of the trust place in him in this respect: a mere slap on the wrist indeed.

In my opinion, PC Gardner-McLean’s behaviour after the incident, and indeed his wider treatment by the Force, seem to be indicative of the ‘one rule for us, one rule for everyone else’ culture which can become endemic in policing. He was not arrested despite his grossly excessive use of force; he was investigated but ultimately not prosecuted for that violence; and he clearly felt he could use the police database for his own personal purposes and get away with it – and effectively did so.

That was not the end of the story, however. I brought a civil claim on behalf of Robert, and faced with the threat of civil court proceedings, Essex Police agreed to pay out damages in the sum of £17,500 plus legal costs. It was clear to me that the Police did not want this case to see the light of day in a forum over which they have far less influence than criminal or misconduct tribunals.

Even in the face of great obstacles therefore, justice can be won for those victims of Police misconduct who have both the perseverance and courage to ride out initial disappointments and the guidance and expertise of the right lawyer.

Ultimately, Robert was let down by Essex Police, the CPS and the IOPC, but not by me.

There was a lot of media attention last week on the case of my client Bryan Allden who was cruelly cost his career as a highly skilled automotive engineer as a result of Police brutality.

Bryan’s hand was fractured when he was subjected to an over-head baton strike by West Midlands PC Paul Knowles in September 2015. You can read the full details of Bryan’s case in my previous blog here.

I am proud to have won significant compensation for Bryan, commensurate with the severity of his injury and the financial impact which it had upon him, but Bryan would be the first to tell you that there is a lot more to the phrase ‘doing justice’ than a monetary settlement. The unreserved apology from West Midlands Police for PC Knowles’ unprovoked attack upon Bryan gave him further comfort and satisfaction. But both he and I were left to reflect in disappointment at the failure of WMP, in conjunction with the Independent Police Complaints Commission (IPCC – now the IOPC), to properly discipline the officer.

PC Knowles was unable to offer any legitimate justification for his vicious attack on Bryan. The officer stated that he was ‘blinded’ by light from Bryan’s mobile phone (with which Bryan was filming a football crowd). We can treat such a suggestion with scepticism, but even were it true, the officer’s response – lashing out with his baton when on his own evidence he couldn’t see what he was hitting – was utterly reckless.

Despite the IPCC report finding that PC Knowles had a case to answer for misconduct, and observing that the officer’s overhead downward baton strike could easily have caused fatal injuries had it connected with Bryan’s head, the officer ultimately received only the half-hearted sanction of ‘management action’ in the form of being sent on a ‘first aid’ refresher course: this scenario would be almost laughable if it wasn’t so serious.

At the end of my previous blog I reflected on the fact that the man who deserved to lose his career after this incident was not Bryan, but PC Knowles: indeed, if Bryan had attacked the officer in a similar manner and broken his hand, Bryan would have been facing not just the loss of his job but also his liberty.

Now, indirect justice has been delivered to Bryan, as PC Knowles – subsequently Detective Constable Knowles – has this month been found guilty of gross misconduct and dismissed from the Force, after committing a data breach which could have jeopardised a murder trial.

The fact is, however, that this is a classic example of how too many police officers get too many second chances, as a result of a habitually toothless complaints and misconduct regime.

As Bryan said to the BBC this week in regards to Knowles “He didn’t give two hoots when he hit me, his colleagues didn’t give two hoots when he hit me.”

Bryan’s complaint was effectively brushed under the carpet, the officer was allowed to continue serving in the privileged role of Detective Constable and as a result almost inflicted further damage to other innocent people’s lives; yet another gross breach of trust.

The systems are in place to deal with rogue officers like PC Knowles, but all too often the willingness to do so is lacking. Decisionmakers need to become more robust and resistant to the centrifugal pull of pro-Police bias in misconduct investigations, and cases like this are a salutary reminder of exactly why. Let’s really put the Independence in the IOPC and let them set the tone.

Click below to hear my interview with BBC West Midlands regarding this case, and my thoughts on the need for Police reform:

In a week in which Police Chiefs have come closer to acknowledging institutional racism in their profession, I reflect upon yet another case involving a non-white child subjected to unlawful force and detention by Metropolitan Police officers.

The February 2021 report of Her Majesty’s Inspectorate of Constabulary highlighted the following grave concerns-

“Over 35 years on from the introduction of stop and search legislation, no force fully understands the impact of the use of these powers. Disproportionality persists and no force can satisfactorily explain why. In 2019/20, Black, Asian and Minority Ethnic people were over 4 times more likely to be stopped and searched than White people; for Black people specifically, this was almost 9 times more likely. In some forces, the likelihood was much higher. Black people were also 18 times more likely than White people to be searched under section 60 of the Criminal Justice and Public Order Act 1994. This gives Officers time-limited powers to search any individuals in an area, without requiring reasonable grounds, in order to recover offensive weapons or dangerous instruments in anticipation of serious violence”.

My client, who for the purposes of this blog I will call Daniel, is of mixed-race heritage and was only 13 years old at the time of the incident in September 2018.

Daniel, his brother and a friend were cycling home after having their hair cut at the barbers, when suddenly a Police patrol car drove up dangerously close behind them. The boys feared being run over.

Two male Metropolitan Police Officers alighted from the vehicle and one of them grabbed hold of Daniel, pushing him against a wall, handcuffing him tightly and then pushing him against the rear of the Police car. Daniel’s requests that the cuffs be loosened were ignored.

The Officer who had taken hold of him then searched Daniel – allegedly, and apparently ‘speculatively’, for drugs – without providing Daniel with his details or, indeed, any grounds for the search. The officer also failed to issue a written record of the search – all of this amounting to a gross breach of the requirements of Code A of the Police and Criminal Evidence Act 1984 (PACE) which are designed to prevent abuses of Police power in ‘street search’ situations.

Another safeguard to which people – especially children – who are being subjected to Police stop/search powers are entitled, is for the Officer to record the interaction on body worn video; but at no point did the Officer dealing with Daniel do so.

Daniel later described the behaviour of the Officer towards him as being like that of an “aggressive bully”.

The second Officer had also grabbed hold of and detained Daniel’s friend, although Daniel’s brother was not apprehended.

After approximately 10 minutes detention the boys were released. Prior to them being released the second Officer – the one who had taken hold of Daniel’s friend – repeatedly told both boys that neither of them had been “detained or searched” despite the fact that this was manifestly untrue, and Daniel was actually in handcuffs whilst these assertions were being made by the Officer.

It is my view that the Officer’s assertions to Daniel and his friend to the effect that neither of them had been ‘detained or searched’ when they certainly had been, was nothing less than a mendacious attempt to mislead both boys, who were minors, as to their rights and thereby for the Officers to escape proper scrutiny/accountability for this wholly unjustified stop.

The incident may only have lasted for 10 minutes in real time, but it felt a lot longer to a 13 year old boy subjected to such overwhelming and terrifying use of force by adults. These events left Daniel not only with pain and bruising to his wrists from the handcuffing – which was in itself an utterly unnecessary and degrading act of assault perpetrated upon a frightened and compliant child – but also a severe psychological impact, later diagnosed as an Adjustment Disorder. Daniel understandably felt that he had been targeted and subjected to excessive force because of his ethnicity. He suffered significantly disturbed sleep for around 6 months after the incident, including frequent nightmares, and his tiredness and fears about the incident also adversely effected his schooling.

We can only hope that like the physical marks, the mental trauma of this incident will fade completely over time – but simply put, Daniel should never have been subjected to this ordeal at all.

The Officers involved in this incident gave a hodgepodge of excuses to attempt to justify their treatment of the boys. They lazily alluded to past reports of thefts from cars in the area, although they were not responding to any current crime report and could not explain why they ‘reasonably’ thought the boys might be involved in such thefts. Furthermore, on taking hold of Daniel, the officer who handcuffed him first claimed he thought Daniel had a weapon, and then purported to search him for ‘drugs’. Daniel also remembers the officer noticing that there was broken glass on the road nearby, after he had handcuffed Daniel, and asking him if he was responsible for it.

What on earth was the suspected offence here? Theft – drugs – weapons – criminal damage? In truth, this appears to have been a classic example of the ‘round up the usual suspects’ methodology of lazy, corrupt policing. The officers’ ‘suspicion’ of Daniel and his companions appears to have been simply plucked from thin air on the basis of their age and/or ethnicity – in other words a totally speculative stop and search of a group of youths simply because of who they were, rather than what they were doing.

The failure of the Officer who apprehended Daniel to activate his body camera, plus the other Officer’s attempt to convince Daniel and his friends that they had not been subjected to use of Police stop/search powers, can be seen in this context as an attempt by those Officers to avoid scrutiny for what they must have known was a blatant misuse of their powers.

The Defence document later filed by the MPS in relation to this matter sought to place great reliance on the fact that shortly before the incident, there had been a theft of a bag from a car in that area and there was also smashed glass on the road near to where the incident took place, consistent with a vehicle having been broken into – but then took the wind out of its own sails by admitting ‘The Defendant’s Officers were not specifically aware of either of these facts prior to the incident…’

Fortunately, Daniel’s mother – who is herself a serving Police Officer – fully understood the rights to which her son should have been entitled and also how to tackle the often obstructive mechanisms of the Police complaint system. An investigation into the incident by the MPS Professional Standards Unit concluded as follows:-

• There was no justification for handcuffing Daniel.
• In regards to carrying out the search, the Officer failed to comply with any of the requirements of PACE.
• The Officer failed to comply with Metropolitan Police policy by not recording any of his actions on his body worn video.
• The Officer failed to properly consider Daniel’s welfare and behaved in an aggressive manner towards him, especially considering Daniel’s age.

The Officer was found to have a case to answer and was ultimately found guilty of misconduct in relation to his use of force upon Daniel, although for this he received only the lowly sanction of ‘Management Advice’.

I subsequently brought Civil Court proceedings on behalf of Daniel against the MPS, and Daniel’s claim has now been settled for a substantial amount of damages (currently pending Court approval as Daniel is a child) and a formal letter of apology from the MPS – albeit not until after we had won a contested Court hearing to confirm Daniel’s right to have his damages claim heard before a Judge and Jury, rather than a Judge alone which is what the MPS wanted.

The apology letter written by Chief Inspector O’Connor acknowledged that the Officers’ actions were unlawful and that this was a deeply unpleasant experience for a 13 year old to undergo. Furthermore, the Chief Inspector wrote:-

The Metropolitan Police Service is committed to ensuring that it provides the highest quality of service from its Officers. It is clear that in this instance that the MPS fell well below that standard. Therefore, on behalf of the MPS, I apologise to you and also to your family who were indirectly impacted.

It is of note however, that the letter of apology contained no acknowledgement of the issue of race – or even of Daniel’s legitimate perception of his aggressive mistreatment and handcuffing by a white Officer.

Daniel and his companions were simply young boys cycling home, not doing anything untoward or suspicious. If the Metropolitan Police Service continue to behave in such a manner – namely stopping, assaulting and frankly terrorising youths without any proper grounds for detaining them – then the culture of Police mistrust and poor community relations is bound to continue. Earlier this month the National Police Chief’s Council and College of Policing announced a new race plan which will accept that policing still contains racism, discrimination and bias for which the Police Chiefs of England and Wales are ashamed, apologise, and are determined to change.

This is a welcome start, albeit long overdue – but we need to see change in the actions of Officers on the street and not just in boardroom policy speak.

Otherwise more young children will suffer the mental scars caused by abusive and authoritarian policing, further distorted by racial bias.

As the custodians of some of the most sensitive personal data which exists about any of us – whether or not we have a clean criminal record, or if we do have convictions or cautions, what they relate to – the Police owe an unparalleled duty to protect such data and only disclose it to appropriate parties with the utmost accuracy. Incorrect criminal records data could have a devastating effect upon a person’s life, and in this respect I am minded to think of a client of mine who almost suffered catastrophic consequences to his career as a result of bungling by British Transport Police.

My client, who for the purposes of this blog I will identify as “David”, was still in high school when he came to the attention of British Transport Police (BTP) at the age of 15, in relation to a minor criminal damage offence.

In March 2010 David, in the presence of his mother, accepted a Reprimand for criminal damage. Reprimands (now known as Youth Cautions) were in 2010 a form of verbal warning delivered by Police officers in respect of minor offences. Any Reprimand or Caution can only be administered by the Police if the suspect admits to the offence: in that respect, therefore, it is almost a form of ‘back door’ conviction. By its very nature, it is generally only suitable to ‘low level’ offences.

David went on with his life and graduated from University.

Then, in early 2020 David applied for an enhanced Disclosure and Barring Service (DBS) check in connection with his new job. He was a young man of good character, having had no further adverse interactions with the Police since 2010. One of the key roles of the DBS is the maintenance of the Children’s and Adult’s Barred Lists, which identify individuals who should be prohibited from jobs in which they might pose a risk of harm to vulnerable individuals.

However, what should have been a routine bureaucratic exercise turned into an experience verging on nightmare for David, because in February 2020 the Disclosure and Barring Service gave David and his employers notice that it was proposed that he be included on the Children’s Barred List and Adults Barred List in light of an alleged Reprimand said to have been issued in March 2010 for the offence of “Making an indecent photograph or pseudo photograph of a child” contrary to S.1 (a) Protection of Children Act 1978.

David was in a state of shock, and spoke to his father for advice. His father was good friends with a solicitor who recommended my services. Upon review, it became clear that the information which the DBS received, which led them to believe that my client had been reprimanded for the said offence and hence should be included on the Barred List, was provided to them by British Transport Police.

David knew he was innocent of this offence and couldn’t understand how this had happened. To his horror he was now facing the potentially life-long stigma of being labelled a paedophile, as well as losing his current job and having his future employment prospects severely blighted by the appearance of his name upon the Barred Lists.

As part of my investigations on behalf of David, I made a Subject Access Request to BTP and received documentation confirming that the only offence he had ever been Reprimanded for was indeed ‘criminal damage’, he had no reprimands, cautions or convictions in relation to any sexual offence whatsoever.

The information apparently provided by BTP to the DBS in January 2020, which stated that David had admitted and received a reprimand for the said sexual offence was entirely inaccurate and without foundation.

The DBS then, quite rightly, withdrew the proposal to include David’s name upon the Barred Lists (although not until he had undergone almost 3 months of stress and anxiety).

Having therefore helped to clear David’s name with the DBS, and ensure he did not lose his job, I then brought a claim against British Transport Police on David’s behalf, for this gross mishandling of his sensitive personal data.

I am pleased to confirm that I have recently concluded David’s claim on the basis of a payment of damages in the sum of £10,000, together with his legal costs.

We should all be entitled to trust that the Police will exercise the utmost care and attention when providing disclosure reports to the DBS, especially regarding matters which could blight the subject’s personal relationships and employment prospects. Thankfully, the error here was identified and corrected before it had gone too far; if not David could have been left to pick up the pieces of a career ruined by slip-shod Police administration.

The name of my client has been changed.

One of the most common offences for which people appear before the Magistrates Court is that known colloquially as “Drunk & Disorderly” i.e an offence contrary to Section 91 of the Criminal Justice Act 1967 –

Drunkenness in a public place.

(1)Any person who in any public place is guilty, while drunk, of disorderly behaviour … shall be liable on summary conviction to a fine not exceeding [level 3 on the standard scale].

(2)The foregoing subsection shall have effect instead of any corresponding provision contained in section 12 of the Licensing Act 1872, section 58 of the Metropolitan Police Act 1839, section 37 of the City of London Police Act 1839, and section 29 of the Town Police Clauses Act 1847 (being enactments which authorise the imposition of a short term of imprisonment or of a fine not exceeding £10 or both for the corresponding offence) and instead of any corresponding provision contained in any local Act.

(3)The Secretary of State may by order repeal any provision of a local Act which appears to him to be a provision corresponding to subsection (1) of this section or to impose a liability to imprisonment for an offence of drunkenness or of being incapable while drunk.

(4)In this section “public place” includes any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise.

It is manifest that all elements of the offence must be proven for a conviction to be secured i.e-

• that the person is drunk AND
• is behaving in a ‘disorderly’ way AND
• the conduct occurs in a ‘public place’.

Equally, for an officer to make a lawful arrest for this offence he or she must have an objectively reasonable suspicion that all three parts of the offence are satisfied.

Whether a person is ‘drunk’ and whether their behaviour is ‘disorderly’ are notoriously woolly terms with a lack of precise definition, and will come down to the impression formed by the Court on the balance of the evidence – which may include video footage and is highly likely to include a statement by the arresting officer, and his or her colleagues, ticking off the following items of what we might call ‘pro-forma testimony’-

• the suspect’s “eyes were glazed”
• “his speech was slurred”
• “he was unsteady on his feet”
• “I could smell intoxicating liquor on his breath”

As a result of their experiences of front-line Policing, officers giving evidence in such cases frequently claim to be “experts in drunkenness”.

What is not normally fair game for debate or subjective opinion, however, is the requirement that the incident occurred in a ‘public place’. Although this can include private premises to which the public are permitted access, that definition does not include a private dwelling house or, indeed, the paths, concourses, corridors and access routes of a private housing estate or apartment block, to which access can only be gained through a locked door/ gateway with permission from the residents, on a case-by-case basis.

The landing of a block of flats, for example, to which access is via a secure door – with visitors having to request entry via an intercom or buzzer system – is not a public place as the general public have no right of entry onto the premises: only residents, their invited visitors and bona fide individuals such as tradesmen and postmen (who can be deemed to have the implied consent of the residents to enter).

A Police decision to overlook this key component of the offence renders them liable for false imprisonment even if the other two elements of the offence are arguably made out – although in such circumstances, the Police may argue that damages should be merely nominal (i.e minimal) on the basis that their failure is a ‘technicality’ as the person could have been legitimately arrested for an alternative offence, such as breach of the peace (which can be committed on private property, including in a person’s own home).

However, such a defence does not have to be accepted. I have recently settled a claim for a client who was arrested for allegedly being drunk and disorderly and who was detained overnight in Police custody. The arrest was prima facie unlawful because it was carried out on private property. Because of this, the Police admitted liability for false imprisonment and assault and battery at an early stage but argued (as above) that only nominal damages should apply. Accordingly, the Police offer of settlement was only £1,000 inclusive of legal costs. I am delighted to report that after negotiations and the threat of legal proceedings, the Police force in question have now agreed to settle my client’s claim for substantial damages plus legal costs, and also to issue a formal letter of apology.

If you have been arrested for drunk and disorderly behaviour in questionable circumstances, particularly if you suspect that the arrest did not take place in a public place, please contact me for expert advice and representation.

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I have blogged on numerous previous occasions about claims which I have brought on behalf of clients to whom the Police have attempted to deny access to justice by invoking Section 136 of the Mental Health Act (MHA), most recently that of a gentleman who was bundled off the street into the back of a Police car against his will whilst he was doing nothing more than simply walking along a Worcestershire road. There was absolutely no suggestion that my client had committed any criminal offence, but the police officers involved subsequently attempted to justify their kidnapping of my client – for it amounted in all particulars to exactly such an act, forcing him into a car and driving him away against his will – by reference to their powers of detention under the Mental Health Act and the Force then tried to use that same legislation not merely to raise a defence to my client’s legitimate claim but – chillingly – to attempt to deny him the opportunity to bring the claim in the first place: in effect, to shut the doors of Court in his face.

Fortunately, I opened them.

Section 136 of the Mental Health Act 1983 provides as follows-

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

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

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

(1A)The power of a constable under subsection (1) may be exercised where the mentally disordered person is at any place, other than—

(a)any house, flat or room where that person, or any other person, is living, or

(b)any yard, garden, garage or outhouse that is used in connection with the house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms.

(1B)For the purpose of exercising the power under subsection (1), a constable may enter any place where the power may be exercised, if need be by force.

1C)Before deciding to remove a person to, or to keep a person at, a place of safety under subsection (1), the constable must, if it is practicable to do so, consult—

(a)a registered medical practitioner,

(b)a registered nurse,

(c)an approved mental health professional, or

(d)a person of a description specified in regulations made by the Secretary of State.]

(2)A person [removed to, or kept at,] a place of safety under this section may be detained there for a period not exceeding [the permitted period of detention] for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an [approved mental health professional] and of making any necessary arrangements for his treatment or care.

Section 135 of the Mental Health Act defines a “Place of Safety” in the following terms-

(3B)

(6)In this section “place of safety” means residential accommodation provided by a local social services authority under [F15Part 1 of the Care Act 2014 or] [F16Part 4 of the Social Services and Well-being (Wales) Act 2014] F17. . . , a hospital as defined by this Act, a police station, [F18an independent hospital or care home] for mentally disordered persons or any other suitable place F19….

[(7)For the purpose of subsection (6)—

(a)a house, flat or room where a person is living may not be regarded as a suitable place unless—

(i)if the person believed to be suffering from a mental disorder is the sole occupier of the place, that person agrees to the use of the place as a place of safety;

(ii)if the person believed to be suffering from a mental disorder is an occupier of the place but not the sole occupier, both that person and one of the other occupiers agree to the use of the place as a place of safety;

(iii)if the person believed to be suffering from a mental disorder is not an occupier of the place, both that person and the occupier (or, if more than one, one of the occupiers) agree to the use of the place as a place of safety;

(b)a place other than one mentioned in paragraph (a) may not be regarded as a suitable place unless a person who appears to the constable exercising powers under this section to be responsible for the management of the place agrees to its use as a place of safety.]

Subsequently, any person who believes that they were wrongfully detained by Police officers purportedly exercising “Section 136” powers and who now wishes to commence an action seeking damages arising out of the incident, requires the prior permission of the High Court in accordance with Section 139 of the Mental Health Act which provides as follows –

(1)No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act, or in, or in pursuance of anything done in, the discharge of functions conferred by any other enactment on the authority having jurisdiction under Part VII of this Act, unless the act was done in bad faith or without reasonable care.

(2)No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions.

In other words, if the Police invoke Section 136 of the MHA as justification for a person’s detention, then the normal freedom available to anyone who has been detained against their will, to commence an action for False Imprisonment or a claim under the Human Rights Act in the civil courts is barred, and any claim which they did issue without first obtaining permission from the High Court, as set out above, would be deemed a nullity.

This is a significant restriction on the rights of an ordinary citizen to seek an accounting in front of the open tribunal of the County Court or High Court for loss of liberty imposed or injury inflicted by agents of the state, and could have amounted to a gross defacement of the constitutional principle of access to justice which underpins the British legal system, were it not for the good health and robust independence of the legal system in England and Wales. Over the years lawyers and judges faced with the provisions of the Mental Health Act have set down cogent legal arguments and given judgments which correct the imbalance of power that might otherwise arise if the Police were simply allowed to use Section 139 as an unquestioned shield against the claims of those purportedly detained under its terms. Indeed,  I am proud to have played my own part in the development of this case law, as set out in this case report – Johnston v Chief Constable of Merseyside.

In the case of Winch v Jones [1986] Q.B. 296, the Court of Appeal determined that the test to be applied when considering to grant permission under section 139 was whether, on the materials immediately available to the court, the complaint appeared to deserve fuller investigation:

“As I see it, the section is intended to strike a balance between the legitimate interests of the applicant to be allowed, at his own risk as to costs, to seek the adjudication of the courts upon any claim which is not frivolous, vexatious or an abuse of process, and the equally legitimate interests of the respondent to such an application not to be subjected to the undoubted exceptional risk of being harassed by baseless claims by those who have been treated under the Acts. In striking such a balance, the issue is not whether the applicant has established a prima facie case or even whether there is a serious issue to be tried, although that comes close to it. The issue is whether, on the material immediately available to the court, which, of course, can include material furnished by the proposed defendant, the applicant’s complaint appears to be such that it deserves the fuller investigation which will be possible if the intended applicant is allowed to proceed.”

In Seal v Chief Constable of South Wales Police [2007] 1 WLR 1910, the appellant had been detained under section 136 of MHA 1983 and removed to a place of safety, following his arrest for breach of the peace. His claim for damages alleged that there had been a misuse of the power to detain him. Here the modern incarnation of the Court of Appeal upheld the test as set down in Winch v Jones,in the context of the post- 1998 Civil Procedure Rules of England and Wales. Again, in this key judgment, the Court took the side of the ‘citizen’ against the ‘State’.

As Baroness Hale astutely observed at paragraph 58 of the Seal judgment –

Police officers lead difficult and dangerous lives. They have to make snap decisions in complex situations where there is no time for quiet contemplation. They deserve the support of the public, the courts and the law. But it has not been shown why they should need more protection and more support when they remove people to a place of safety under section 136 of the Mental Health Act 1983 than they have when they conduct an ordinary arrest.

I also cheerfully endorse the reference at paragraph 18 of this judgment to the principle of English law enshrined by Viscount Simmonds in 1960, a rallying call in support of access to justice and civil liberties made in the language not of the revolutionary but the traditionalist –

It is a principal not by any means to be whittled down that the subject’s recourse to her Majesty’s Courts for the determination of his rights is not to be excluded except by clear words.

And what a long and honourable tradition that is, that underpins our modern liberties and democratic state.

What is disappointing to me is that despite such clear guidance from the Courts, the Police still routinely trot out “Section 139” as a defence to frustrate, delay and demoralise Claimants who clearly have legitimate claims but who are faced with the potentially daunting prospect of having to go to the High Court to clear an artificial hurdle before the Police will properly and reasonably address their claims; all too often I see Police Forces wasting everybody’s time and money forcing High Court proceedings to be brought in cases where there is simply no basis for suggesting that the claim has no prospect of success or is ‘frivolous, vexatious or an abuse of process.’

In this respect, Police Forces often utilise Mental Health legislation to play cynical, tactical games for a litigation advantage, and thereby seek to hide their Officers from proper scrutiny for their actions behind legislation primarily intended to protect medical professionals from vexatious litigants.

There are many occasions on which acts which deprive individuals of their liberty for Mental Health reasons deserve the full investigation that substantive civil proceedings will allow; if you believe you have suffered in this way at the hands of the Police, or they are using the provisions of the Mental Health Act to attempt to frustrate your claim or complaint, please contact me for expert advice.

In certain legal jurisdictions, ‘jaywalking’ is the offence committed by pedestrians who cross a carriageway at a place other than a designated crossing point. No such offence exists in the UK, where the Highway Code does not seek to limit the freedom of movement of pedestrians, allowing individuals to make their own judgment as to whether or not it is safe, based on the well-known precepts of the “Green Cross Code.”

On 3 December 2020 my client Paul McSweeney was working at Euston House on Eversholt Street, over the road from Euston Station. At approximately 1pm he went to buy lunch from Euston Station.

Before crossing Eversholt Street, Paul looked left and right and made sure that there were no vehicles coming from either direction.

As Paul crossed the road he turned back to speak to his colleague, Rob.  As Paul did so he heard someone bellow from behind him “Get out of the road” – despite the fact that there was no nearby traffic.

Paul turned around to see who had shouted and saw that a police officer, PC Armstrong, was staring at him from the top of the stairs outside Euston Station near to a Marks and Spencer’s store. There were three other police officers with PC Armstrong; another Metropolitan Police constable, and two officers from British Transport Police.

Paul shouted back at PC Armstrong words to the effect of “I’m 52 years of age and I managed to survive this long, thank you”. PC Armstrong shouted back for Paul to come up to him.  Paul was in fact already walking up the stairs to go past the Marks and Spencer’s store, on his way to the Sainsbury’s store. PC Armstrong and Paul then met at the top of the stairs.

PC Armstrong demanded that Paul stop and speak to him. Paul replied that he was walking to the shop and PC Armstrong could walk with him if he wanted.

Out of the blue, PC Armstrong then threatened Paul with the words “Don’t walk away from me or I’ll cuff you”.  Paul was shocked; he stopped and raised his arms and said “For what?”  PC Armstrong then approached Paul and pushed him in the chest. 

PC Armstrong then grabbed Paul’s right arm, whilst another officer took hold of his left arm. 

PC Armstrong pushed Paul up against a pillar and twisted his right arm up behind his back causing Paul considerable pain whilst telling him, “Stop getting fucking aggie with me.” 

Paul asked PC Armstrong several times to “Let go.”  PC Armstrong asserted that he had only wanted to speak to Paul about ‘road safety’.  Paul again asked PC Armstrong to release his grip, telling the officer “You’re fucking hurting me.” Outrageously, PC Armstrong, still tightly gripping my client, now warned Paul to ‘stop swearing’ otherwise he would be arrested for “Public Order.”

Meanwhile, the incident had attracted the attention of passing members of the public, one of whom, Professor Jean Parker, stopped and said that she had seen what had happened.  PC Armstrong replied, “Okay, can you go away.”

Professor Parker told PC Armstrong that she was a doctor and expressed concern as to how PC Armstrong was restraining Paul.  PC Armstrong again tried to dismiss her saying, “It’s nothing to do with you.”  The Officer then accused Paul of “Creating a public order” situation, although he was clearly the real culprit.

Paul again asked PC Armstrong to “drop” his arm and Professor Parker told PC Armstrong “I really don’t think you’re helping the situation.”  PC Armstrong once again told Professor Parker to “Go away.”

Professor Parker again asked PC Armstrong to release Paul and PC Armstrong advised that he would not because Paul was “Shouting and swearing in a public place.” In fact, any shouting or swearing on the part of my client had come solely as a result of the officer’s unprovoked assault upon him.

Professor Parker pointed out that it was PC Armstrong who had in fact shouted at Paul and the conversation continued until eventually PC Armstrong relented and released his grip on Paul.

PC Armstrong again sought to justify his conduct by reference to ‘road safety’.  Professor Parker responded, “I think it was great of you to point it out to him …….. now I think we should just let him go.” PC Armstrong replied, “Don’t lecture me how to do my job.”

Paul now walked away and as he did so, PC Armstrong called after him in a sarcastic tone, “You have a great day sir, take care, take care, all the best, enjoy your life.”

When Paul returned home that night he noticed bruising on his upper left arm from the Officer’s totally unnecessary and violent restraint

The following day Paul called both the Metropolitan Police and British Transport Police to report the incident. Later the same day he received a call from a Chief Superintendent to whom Paul made a formal complaint. After making his complaint, Paul noticed that he also had bruising to his upper right arm as well.

Paul’s complaint was investigated by the Directorate of Professional Standards (PSD), who upheld the complaint on the grounds that PC Armstrong had been uncivil to Paul and had used unlawful force against him-

“PC Armstrong did not need to detain you just to speak with you…He had not detained you for the purpose of a search, nor did he mention that you had committed a criminal offence and that you were going to be arrested, therefore making the initial use of force against you unjustified. In my opinion, I do not believe that you had committed a public order offence.”

Although Paul’s detention at the hands of PC Armstrong had only lasted a matter of minutes, it had a profound psychological impact on him, which went over and above the bruises on his arm: Paul found that his whole faith in the Police had been severely damaged and he now experienced anxiety on seeing Police officers.

I have now sued the Met on Paul’s behalf and recovered substantial damages for him: unfortunately, however, no amount of money can restore his trust in the Police as custodians of our law and order.

PC Armstrong may have initially thought he was being helpful to Paul by shouting a ‘warning’ – regrettably, he then let arrogance and aggression take over when he evidently thought Paul was being ‘ungrateful’ towards him, such that the only real risk of harm that Paul faced that day came not from the traffic, but from the officer.

Some Police officers may think that their uniform elevates them into the role of ‘teachers’ patrolling a playground where members of the public are too easily seen as ‘children’. Others of us may think, that same uniform turns those officers into nothing less than school bullies.

Paul might have found it easier to come to terms with what happened to him had the Police complaints system offered true accountability, but sadly it did not. The role of the Police in our communities is to maintain order and exert a calming influence; instead PC Armstrong single- handedly created a conflict out of nothing. Despite finding that PC Armstrong had unlawfully assaulted and detained Paul, the Professional Standards Department closed its eyes to the seriousness of the officer’s misconduct, and found that the appropriate ‘punishment’ was merely for PC Armstrong to “sit down with the Chief Inspector, review the Body Worn Video, discuss and reflect on this and take away valuable learning.”

I find it hard to believe that the Police would endorse such a friendly resolution for a member of the public who had reacted to one of their officers in the same way that PC Armstrong did to Paul.

Serious questions are raised by this incident as to whether PC Armstrong is fit to be a Police officer at all, but the MPS showed no interest in answering them. Changes to Policing culture in this regard, cannot come too soon.  This week, Cressida Dick’s replacement, acting Commissioner Sir Stephen House, called for powers to allow Chief Constables to sack ‘bad’ officers faster. Alongside any such powers, however, would be required a significant change in the attitudes of the people who administer such powers i.e the PSD bureaucracy – which to many observers such as myself displays so much pro-Police bias that it is practically a wing of the Police Federation.

The names of the witnesses referred to in this blog have been changed.

A case which I have recently concluded is yet another reminder of the absolute importance of attention to detail in the processing of data connected with legal matters, where sloppy errors by law enforcement officials – here West Yorkshire Police – can have serious consequences for innocent individuals.

My client Emily Baker is a person of good character and has no previous convictions or cautions.

Unbeknownst to Emily, on 24 August 2020 a Miss Emily Barker was involved in a road traffic accident, Miss Barker failed to stop although her vehicle’s registration was noted. The officer in the case then extracted the vehicle’s registered keeper’s address from the Police National Computer. However, when obtaining further details regarding the registered keeper, the officer misspelt Miss Barker’s name, crucially missing out the “r”, and thereby linking the incident to my client’s details rather than those of Miss Barker.

A request to furnish driver details was then sent to Miss Barker’s (correct) address. However, the letter to Miss Barker included my client’s date of birth and driving licence number. Miss Barker did not return the request.

Miss Barker was subsequently charged by West Yorkshire Police with failing to provide the identification of the driver. On 2 October 2020 Miss Barker was convicted at Bradford Magistrates Court of failing to stop, however due to the earlier mistake 6 points were placed on my client’s licence and a fine was issued in her name (Emily Baker).

Miss Barker (the real culprit) did not pay the fine and therefore a warrant of control was issued by the Court, and High Court Enforcement Officers from Marstons Recovery were instructed to obtain payment of the fine.

On 6 September 2021 my client received a letter from Marstons Recovery alerting her to the points on her licence and the fine, which including other charges, was now £1,126. Emily was understandably shocked and distressed by this, and on learning of the mistake immediately alerted Bradford Magistrates Court and attempted to rectify the situation. The Court replied that they could not rectify the matter themselves and that instead Emily would have to make a report to the Police (which she did, by way of a complaint).

A few weeks later – in fact on Emily’s birthday –  High Court Enforcement Officers from Marstons Recovery attended her home address. The Officers possessed a warrant and locksmith authorisation to enter the address and seize goods. Emily found their attendance to be deeply distressing and intimidating, however, to avoid the seizure she agreed to pay the fine (having to call a family member for assistance in making that payment).

On 15 September Emily attended Bradford Magistrates Court in person to request that she be provided with the details of the case. Despite my client providing her current address to the Court, another letter containing Emily’s personal details was then incorrectly posted to the real driver Miss Barker.

Having received little or no assistance from the Police or the Court, Emily took steps to identify Miss Barker via Facebook and contacted her directly. Miss Barker admitted to Emily that she was in fact the party responsible for the incident on 24 August 2020.

On 21 September 2021 the matter was heard again in Court and the case against my client was withdrawn, and the points removed from her licence. Emily was informed of this by West Yorkshire Police’s Professional Standards Department on 28 September, who confirmed that the data breach was a result of the original officer’s mistake.

Emily was left feeling very shaken by these events, to such an extent that she no longer felt comfortable at home out of concern of more unexpected bailiff visits and suffered sleeplessness. She instructed me to pursue a claim for damages on her behalf and I am pleased to confirm that not only did I secure full reimbursement of the fine  from West Yorkshire Police, but in addition got them to pay compensatory damages in the sum of £4,500 for the distress and inconvenience caused to Emily.

However, the bottom line is that this is a mistake which should never have been allowed to happen in the first place; a casual error, unchecked, leading to significant disruption to a person’s life. In today’s ‘data rich’ age more care than ever must be taken by the Police in the processing of that data, or else our data fingerprints could become connected with another person’s financial or criminal misconduct.

Names have been changed.

Given the indissoluble links of geography, culture and economics between the UK and mainland Europe, it was inevitable that many of the changes ‘Brexit’ brought about, would be changes in name only. One example of this is the system of extradition between EU Member States, known as the European Arrest Warrant (EAW) – which provided for the swift and smooth transfer of ‘wanted’ individuals between legal jurisdictions. In the days before the EAW, the process of extraditing Rachid Ramda, wanted for the 1995 Paris metro bombing, from the UK to France took 10 years; by way of contrast, under a European Arrest Warrant in 2005 it took a mere 56 days for Hussain Osman, wanted for the 21/7 London tube bombings, to be brought back to the UK from Italy.

Although the UK withdrew from the EAW system on 31 December 2020, the same mechanism for streamlined extradition was effectively continued, albeit ‘re-branded’ as part of the terms of the Trade and Co-operation Agreement (TCA) between the UK and the EU, from 1 January 2021.

The arrangements under the TCA continue to be governed by the same UK legislation which applied to the old European Arrest Warrant (the Extradition Act 2003) and continue to be administered in England and Wales by the National Crime Agency, which validates international warrants and alerts local Police Forces. The new UK/EU “surrender arrangements” provided by the TCA mirror the EAW system in important ways-

• An arrest warrant can be issued for any offence which carries a potential custodial sentence of at least 12 months, or where a custodial sentence has already been made against the individual of at least 4 months;
• The issue of the warrant is subject to the principle of “dual criminality” i.e the type of activity must be recognized as a criminal offence in both countries;
• After arrest, the individual will have an initial Court hearing, at which they are given the opportunity to ‘consent’ to be surrendered abroad, and if they do not consent, a more in-depth Extradition hearing at a later date to make a final decision (though all taking place within a tight timeframe).

One important difference that should be noted, however, is that the TCA allows a ‘Nationality Bar’ to be imposed i.e for a given country to refuse to extradite their own nationals. Several major EU countries, including France and Germany, have invoked this clause – although the UK has not.

Fast track extradition between neighbouring democracies is unquestionably a useful tool in law enforcement and the proper functioning of civil society – but as ever, any legal power must be exercised with proper due care and attention, otherwise significant wrongs can occur, as the case of my client Stefan Albescu demonstrates, almost extradited as a result of ‘mistaken identity’.

My client Mr Albescu is a Romanian National who came to the UK in 2015 and who at the time of the material events in 2019 was living in the East Midlands with his wife and children. He was a man of good character who had never before been arrested.

Unfortunately, in the early hours of Sunday 21 July 2019 Mr Albescu was arrested at his home address on suspicion of drink driving. He was taken to his local Police Station.

At 11.12am the following morning Mr Albescu was charged with driving offences and granted unconditional bail to attend Court at a later date.

However, at 11.15am Mr Albescu was then further arrested on the basis of a European Arrest Warrant (EAW) which had been issued by Hungary on 13 October 2016 and certified by the National Crime Agency on 28 June 2017. This was in respect of a conviction warrant issued on 5 September 2016 in relation to an allegation of “fraudulently obtaining a passport”.

The EAW was issued against a man named Stefan Alexandru Albescu, whose date of birth was 30 March 1971.

My client Stefan (not Alexandru) Albescu had a date of birth of 31 March 1976.

The warrant was not backed for bail and therefore the following morning Mr Albescu was transferred to HMP Wandsworth in a state of distress, not only because he knew himself not to be the person named in the EAW, but also because he was claustrophobic and was experiencing considerable alarm at the thought of being confined in the prison transport van.

Mr Albescu was then taken before Westminster Magistrates Court for an initial Court hearing, where he did not consent to extradition and asserted that this was a case of mistaken identity. Bail was refused and his detention continued until 26 July 2019 when the Judge finally agreed that my client was not the person named on the EAW and he was thus released from custody that afternoon, having been detained in prison for over 5 days.

My client’s detention at HMP Wandsworth was particularly distressing given that he was a man of good character, who had never before seen the inside of a Police Custody Suite, let alone a high security prison, where he was being detained at the threat of deportation to a foreign country and separation from his wife and children; all of the time knowing himself not to be the person who was really wanted (and adding insult to injury, he had mistakenly been told following his arrest that the individual was wanted for an offence of murder, significantly increasing the stress of this already nightmarish and Kafkaesque situation)

The effect which these events had had upon Mr Albescu is amply summed up in an entry in his GP records 3 days after his release which describes his condition as follows:-

“Shock, PTSD, put in prison for 5 days as they thought he was another Hungarian man wanted for murder, but different name and DOB. Very shocked when released. Plan: advised to see counselling, insight details given. Zopiclone 7.5mg tablets…one tablet a night when needed to aid sleeping.”

Mr Albescu later described to me how he had suffered disturbed sleep for weeks, including nightmares about being locked in a cell with no one coming to let him out, and the cell getting smaller and smaller so that he thought he was suffocating. He woke up terrified on several occasions even when he was back in the safety of his own home.

I was able to get Nottinghamshire Police to accept liability without the need for Court proceedings, and after rejecting the initial Police offer of settlement in the sum of £5,300 damages I was ultimately able to secure a substantial settlement of £22,500 for Mr Albescu in proper recognition of the duration of his detention and the mental trauma which it had caused to him.

Please contact me for expert advice and representation if you have suffered a wrongful arrest under either the old European Arrest Warrant system or the new Surrender Arrangements provided for by the Trade & Co-operation Agreement.

Names and personal details have been changed.

The failings of Greater Manchester Police have been the subject of numerous news reports in recent times, following on from the Force being placed into “special measures” in December 2020. A Police Effectiveness, Efficiency and Legitimacy (PEEL) report from Her Majesty’s Inspectorate of Constabulary published last month, highlighted continuing areas of concern.

This week in my blog I will illustrate what sub-standard performance can mean on the ‘front line’ of day-to-day policing in the Greater Manchester area, for an innocent man and his family.

In the early hours of Saturday, one day in November 2017, my client David was at his home address in Wigan. He was asleep on his sofa after a night out at a family celebration. His wife, Emma , was still out and their teenage daughter Lucy was in bed upstairs.

Unbeknown to David, Lucy had mistakenly called 999 on her mobile phone just before midnight and quickly cancelled it. There were then two further accidental calls from her phone at 1:26am and 1:33am (“butt dials”). When the emergency call centre called the number back, Lucy answered. When asked if she had called the police she replied no, and apologised. When asked for her address she hung up.  The mobile phone was registered to her mother, Emma, at the family’s home address.

In response to that abandoned 999 call, GMP officers attended at the family home at around 4:20am. Initially, there were just two officers, PC Matthews and PC Brandon. PC Matthews was clearly the older and more experienced of the two officers and took the lead in what happened thereafter.

David did not hear the officer knock on the door but was woken as the officers walked into the living room where he had been sleeping on the sofa. He was surprised to hear about the 999 call and politely answered all of the officers’ questions, explaining that Emma was still out with family/friends. He confirmed that there had not been any ‘domestic’ between him and his wife.

David explained that his daughter was upstairs and went to her bedroom to see if she would speak with the officers. Lucy explained to David that ‘999’ was dialled by accident and he relayed that to the officers.

He then showed the officers upstairs so that PC Matthews could speak directly with Lucy, whilst David provided further details to PC Brandon in the living room. Lucy asserted to PC Matthews that the 999 call was a mistake.

During these interactions, David was very co-operative and allowed the two officers free-rein to explore the house. The officers searched the ground floor living room, dining area, kitchen and even under-stairs cupboard. PC Matthews also searched the upstairs floors (the bathroom and all of the bedrooms).

PC Matthews then saw Emma’s mobile phone (switched off) on the hallway table and David confirmed that it was his wife’s, explaining that she must have not taken it out with her.

“I smell porkies”

At that point PC Matthews asserted, “I smell porkies”, insinuating that David was lying. David took offence at that and clearly asked the officers to leave his home.

The officers refused to leave, at which point David raised his voice and tried to guide the officers from the living room to the front door. He repeatedly asked the officers to leave his house, yet they refused to do so.

It would appear that PC Matthews was assuming that the phone used to make the ‘dropped’ 999 call was Emma’s phone in the hallway – as opposed to Lucy’s phone registered in her mother’s name – and from that had leapt to the wild surmise that something sinister had befallen Emma – despite there being absolutely no evidence of this (and, indeed, significant evidence to the contrary was about to appear).

At this point the officers had already spoken to the couple’s daughter and searched the house from top to bottom. There was no evidence of any crime and the officers should have simply obeyed David’s instruction to leave – by point-blank refusing to do so, they thereby rendered themselves as trespassers, having no power to remain on the premises in these circumstances once the householder’s consent to their presence was withdrawn.

As David moved towards PC Matthews to guide him back towards the front door, PC Matthews shoved David violently in the chest with both hands, pushing him backwards.

PC Matthews then moved into the hallway briefly, before pushing past David to return into the living room and through into the dining area again, apparently searching the area for a second time to see if Emma was there, which she clearly was not. It was around this time that Lucy, having heard the disturbance, came into the living room.

As David approached PC Matthews, repeating his instructions for the officer to leave, PC Brandon suddenly and without warning grabbed hold of David from behind, putting his arm around David’s neck in a ‘choke hold’.

David struggled to free himself from the choke hold, and he and PC Brandon fell onto the sofa, where a struggle ensued.

At that moment, Emma entered the living room with her brother, having just returned home, shocked and stunned to witness a Police officer wrestling with her husband on the couch.

It was now manifestly clear that no harm had befallen Emma, but PC Matthews and PC Brandon continued their assault upon David.

PC Matthews sprayed David in the face with CS Spray. As well as debilitating David, the spray affected everyone else in the room, including Emma and Lucy. Emma’s brother pulled David up from the sofa.

Police Brutality

David then went upstairs and the police officers stepped outside the house with Emma and Lucy. PC Matthews then stepped back into the hallway and walked to the bottom of the stairs.

David came back down the stairs, in distress and pain from the CS spray, again instructing PC Matthews to leave and attempting to close the front door. PC Matthews stood in the doorway, preventing David from closing it and forcing the door against David.

PC Brandon then discharged CS Spray into David’s face for a second time.

Multiple Police units now pulled up outside the house, blue lights flashing.

PC Brandon and a female officer now restrained Emma, who was protesting at the officer’s treatment of her husband and moved her away from the front door. PC Brandon then handcuffed Emma to the rear and detained her on the driveway while the other officers approached David. Let us not forget that this whole incident had ‘kicked off’ because the Police were allegedly concerned as to Emma’s safety – but she was entirely unharmed until the Police subjected her to gas spray, manhandling and handcuffing.

One of the newly arrived officers, PS Brown, then entered the house and took hold of David. PS Brown punched David several times to the face. David struggled in an attempt to defend himself and get away from PS Brown and the other officers. PC Matthews had also grabbed hold of David and both officers dragged him out of the house.

Outside the house and whilst David was restrained by PS Brown and PC Matthews, PC Edwards approached David and Tasered him from close range – making contact with his torso. The Taser incapacitated David causing him to fall to the ground, whereupon he was handcuffed by PC Matthews and taken to a waiting police vehicle. The Police had brutally deployed the full extent of their weaponry upon an innocent man.

Once David was inside the police van, at around 4:50am, PC Matthews arrested him for “assaulting police officers in the execution of their duties”.

David arrived at Wigan custody suite at around 5:15am and his detention was authorised at 5:27am.

Following an interview under caution, in which he asserted his innocence, David was released, after almost 12 hours in Police custody. His shirt and trousers were returned to him but they were ripped and smelled of CS gas so he threw them away. At the time of release he enquired as to how he could make a complaint against the officers involved in the incident.

David was subsequently sent a postal requisition in January 2018 in regard to three offences of assaulting a constable contrary to s.89(1) of the Police Act 1996, based on allegations that he assaulted PC Matthews, PC Brandon and PS Brown. All of the charges against him were dismissed following a trial at the Greater Manchester Magistrates’ Court in October 2018, but he nevertheless had the stress of those charges hanging over his head for almost a whole year.

As a result of the force used against him by the Police, David was left with pain and discomfort from the gas spray and taser, as well as bruises and scratches to his face, and a cut inside his mouth that required hospital treatment.

David subsequently brought a complaint against GMP, but sadly the Professional Standards Branch failed to take this opportunity to apologise and to rectify the failings of PC Matthews and his colleagues – instead endorsing the officers’ actions and rejecting the complaint as “not upheld” on all counts.

Such is the typical reactionary response of most Police Forces in these scenarios, thereby wasting significant opportunities to improve professional standards – of which GMP of all Forces would appear to be sorely in need at the current time.

What a self-inflicted waste of Police time and resources this incident was  – although over and above ‘mere’ incompetence and aggression, we also have the more sinister spectre of the efforts made by the Police to criminalise David for this encounter – despite the fact that he was an innocent man in his own home, trying to get two trespassers to leave, who both assaulted him without warning, including a violent ‘choke hold’ manoeuvre. Multiple officers involved in the event gave sworn statements depicting David as the aggressor. Such falsehoods could have resulted in David being convicted and facing a jail sentence and might have blighted his future career prospects. It is awful and reprehensible conduct on the part of the Police, although in my experience sadly an all too common an outcome of such encounters.

Ultimately, justice was secured, firstly as a result of David’s courage and determination in proving his innocence at the Magistrates Court, and secondly through my expert legal assistance in the Civil Court proceedings which followed, forcing GMP to settle David’s damages claim for a significant five-figure sum.

In light of incidents like this, however, GMP have clearly got a long way to go to improve their Policing to adequate levels – or, indeed, to demonstrate any real intent to reform the errors of judgement and institutional malice which allow misbehaving officers to go unpunished, and put innocent people at risk of being ‘framed’ for offences they did not commit.

Many people were shocked last week to read of the case of  “Child Q” a 15 year old girl strip-searched in her school by the Metropolitan Police because she was wrongly believed to be in possession of cannabis. The Met have issued an apology for this “highly regrettable” incident; sadly, this has once again not arisen because of internal accountability, but because a spotlight has been shone upon the MPS from outside – in this case, a report by the City of London & Hackney Safeguarding Children Partnership – and the ensuing media storm. Indeed, by reference to a very similar case which I have recently concluded, I can confirm that this incident is not a ‘one off’ and nor do the Met typically show any regret for this sort of abuse of power over a minor – until it is forced out of them.

Metropolitan Police Apology After Strip-Search of Child

On the afternoon of 16 November 2019, my client Tom travelled to London Bridge underground station so as to meet up with his girlfriend.  He travelled there with a male friend.  Upon arrival, Tom and his friend split up so as to locate Tom’s girlfriend in the busy station concourse. 

At the time, Tom was 17 years old. 

Whilst he was walking through the station, Tom was stopped by PC Carter of the Metropolitan Police, who asked him what he was doing.  Tom explained that he was meeting his girlfriend.  PC Carter was joined by two other Officers. The officers were present in the station as part of a joint operation with British Transport Police, and an officer with a Police dog trained to detect drugs was also in the vicinity.

Tom asked if he was being detained.  PC Carter replied, “You’re not detained yet, but if you are obviously keen to leave, it’s arousing my suspicion and I might detain you.”

Tom asked why the Officer would detain him. A second unknown Officer then said “Now you are going to be detained.” PC Carter  then said, “You are detained under section 23 of the Misuse of Drugs Act.  This is a passive drugs dog.  It’s indicated that you may have drugs or that you have been in close proximity of drugs.  So if you come over here with me.” (Subsequent evidence showed both that PC Carter had decided to stop/ question Tom prior to any indication from the drugs dog, and also that the drugs dog’s attention was primarily focused on another nearby  individual, unknown to Tom, who was found to be in possession of illegal drugs).

PC Carter then grabbed Tom’s arm with one hand and Tom’s wrist with the other. Tom remonstrated and said, “You don’t need to hold my arm.  I will comply; you don‘t need to hold my arm.  I have a bad arm, I’ve hurt it.” (He was suffering with muscular soreness in both arms from extensive physical training).

The conversation between Tom and PC Carter (captured on the Officer’s Body Worn Video) continued as follows:

PC Carter –  “We’re not holding it tightly, we don’t have to put you in cuffs, but we might do.”

Tom –  “For what?”

PC Carter –  “All I’m asking you to do is to walk over to the wall with me.”

PC Carter then sought to handcuff Tom to the rear.

The conversation then continued as follows:

Tom – “I’m going over, you don’t need to do that.  Why are you putting me in cuffs?”

PC Carter – “Coz you are being reluctant and evasive.”

The handcuffs were applied very tightly and Tom complained:

Tom – “I’m saying that I’m going to meet my girlfriend……  You don’t need to do it that tight.”

PC Carter – “You are not going to dictate what we can and can’t do.”

Tom – “You don’t need to do it that tight.”

PC Carter – “I can get my finger in there still mate.  Let’s go over here to the wall by the tube map.”

Tom – “For what reason?”

Tom was then taken to a nearby wall.

PC Carter informed Tom that he had seen him come around the corner and stop in his tracks and that had aroused the Officer’s suspicions and that the passive drugs dog had then indicated that Tom might have drugs on him.

PC Carter then carried out a ‘pat down’ search of Tom, both front and rear, during which he touched Tom’s penis several times.  PC Carter asked if Tom had any ID on him. Tom said his wallet was in his right pocket.  A female Officer then removed Tom’s wallet, and Tom gave his full name, date of birth and confirmed that his Oyster card was in his wallet. 

Tom’s friend then called his phone.  Tom asked the Officers to take the call and explain that he had been detained and handcuffed, but they refused to do so.

Tom complained that the handcuffs were cutting off the blood circulation to his hands and he could no longer feel his fingers.  PC Carter dismissed this complaint.

Tom’s friend then approached; Tom asked his friend to confirm that he had indeed attended the station so as to meet his girlfriend, which his friend did.

Tom was confused and shocked by what was happening to him, and understandably embarrassed as members of the public were staring at him.

PC Carter advised Tom that he was not satisfied and that Tom would now be taken for a further search.

PC Carter and four other Officers then escorted Tom out of the station.  Tom again complained that his hands were going numb.

Tom was taken to a toilet in the nearby British Transport Police Station by three male Officers, including PC Carter.  At this time, PC Carter finally removed the handcuffs from Tom.

The most distressing part of the encounter now occurred:  Tom was told to remove his upper clothing items one by one.  He was then allowed to put his t-shirt back on and told to remove his lower clothing items again, one by one.  Having done so, he was told to lift his penis up and then his testicles.  He was then told to spread his legs and bend forwards.  This type of ‘strip search’ is what is known in Police jargon as a MTIP (More Thorough Stop and Search, Intimate Parts Exposed).

Tom felt extremely embarrassed, humiliated and degraded.  He was conscious that PC Carter was wearing a plastic glove.  Tom was immediately anxious as to the extent of PC Carter’s search and said “You’re not putting your finger up my bum”. Fortunately, it did not go that far.

Tom was then allowed to re-dress and was released from the Police Station shortly afterwards. The search was, of course, entirely negative.

Multiple Breaches of Codes A and C of PACE

Tom’s mother was understandably outraged with what had happened to her son, and subsequently filed a complaint about the events.  By report dated 25 September 2020, the Met PSD (Professional Standards Department) found that:

• PC Carter failed to comply with Code A, specifically that he had failed to identify himself or provide details of his station or unit or inform Tom that he was entitled to a copy of the search record at the conclusion of the search.

• In breach of Code C, PC Carter carried out a strip search of Tom without an appropriate adult being present (an essential prerequisite given that Tom was only 17 years old).

• In further breach of Code C, PC Carter carried out a strip search of the Claimant in the presence of two other Officers (no more than two people should be present).

• Likewise  in breach of Code C, PC Carter failed to secure authority from a Senior Officer (minimum rank of Sergeant) to carry out the strip search.

• Finally, PC Carter failed to record any justification for the search in an Evidence/Action Book or in his personal issue pocket book.

Notwithstanding all of the identified breaches, the tone of the Complaint report was typically unapologetic, and if anything unsympathetic and hostile towards Tom – excusing the breaches as, in effect, momentary lapses, “accidental oversights” or understandable mistakes on the part of PC Carter. The author of the report was at pains to repeatedly praise PC Carter as “an experienced officer with sound knowledge and capable Policing skills” and at the same time blame Tom – a child lest we forget – for distracting this ‘highly experienced’ officer and making him forget to comply with the law – “My investigation suggests that Tom is partially responsible for the outcome” suggesting without foundation that Tom was unduly “hostile” and dishonest in his dealings with the officer!

The conclusion of the report, therefore, was that despite the investigating officer’s (reluctant) upholding of multiple grounds of complaint, PC Carter was to receive only the minor censure of being advised he had some areas of ‘practice requiring improvement’ to focus on; a mere slap on the wrist indeed.

The tone of the report was really this – Look, you’ve got us on a few technicalities, we’re insensitive to your complaints, we’re not really sorry and we’ll excuse the officer and blame the child wherever possible. It is this type of attitude that stands in the way of real change to problematic aspects of Policing culture: did PC Carter, this experienced officer, somehow make multiple mistakes that day because of misunderstandings/ moments of forgetfulness – or rather did those breaches occur because the Officer’s experience had taught him that corners can be cut, and the requirements of the law as to reasonable grounds for a stop search, reasonable use of force in effecting the search, and compliance with the Codes of Practice can be disregarded or only partially obeyed precisely because his Force will protect him from complaints and either dismiss accusations of unlawful conduct on his behalf, or minimise/ excuse them whilst belittling the complainer?

In any event, I was instructed to pursue matters further by Tom and his mother, who were determined not to let matters rest with such an unsatisfactory complaint outcome.

In response to the letter of claim, the Met failed to admit liability, although at the same time putting forwards a derisory offer of settlement in the sum of £600.

On my advice, Tom rejected that offer and Court proceedings were issued, with the Met soon afterwards making a significantly increased offer of £5,000 (whilst still contesting liability).

Last month, I am pleased to confirm, settlement was agreed in the sum of £10,000 damages for Tom, plus legal costs, and, very significantly given the MPS’s frankly hostile and unconciliatory complaint investigation – a promise of a full apology to acknowledge the unlawfulness of PC Carter’s conduct towards Tom, and the impact it had upon him, to be provided by an officer of at least the rank of Chief Inspector.

Cases such as that of Tom and Child Q leave us not with the scent of cannabis in our nostrils, but a bad taste in our mouths – for all too often the public are forced to swallow the fact that the Police care far too little about Police breaches of the law – even when the law in question has been enshrined to safeguard the rights of children.

All names have been changed in this blog to preserve my client’s anonymity.

I have blogged before about how errors in Police investigations of cloned vehicles can lead to wrongful arrests; in this week’s blog I describe another distressing incident arising out of such a case of ‘mistaken identity’ – the deployment of a ‘stinger device’, without warning, upon my client Simon, his wife and young children, who were on a Sunday morning shopping trip in their new family car.

Simon was driving his newly purchased Mercedes motor car, with his wife Lorna and their three children (aged 8, 12 and 16) in the vehicle.  

Simon and his family left their home at 10.45 a.m in order to travel to a nearby Shopping Centre and the incident occurred approximately 20 minutes later. As Simon was driving in an ordinary and lawful fashion along the road, a ‘stinger’ device was suddenly and without warning thrown across the road in front of his vehicle, causing Simon to have to perform an emergency breaking manoeuvre and he and his family to be thrown violently about inside the car as it collided with the stinger (puncturing the two front tyres).

It is now known that the stinger device was deployed by Officers of West Midlands Police. A stinger is a device/ weapon in the form of a sliding strip of spiked metal designed to puncture a vehicle’s tyres, instantly stopping it in its tracks in order to “resolve potentially dangerous pursuit scenarios” (per West Midlands Force policy). Here, Simon had been given absolutely no opportunity to stop his car peacefully – as he would certainly have done had the Police made their interest in his vehicle known in the usual manner of driving behind the target with flashing lights indicating that the driver should pull over. Simon had had no idea that the Police were following/ lying in wait for his car – what happened to him and his young family can only be described as a total ambush.

Simon’s car was then ‘swarmed’ by a number of Police Officers who ordered him out of the car and then led Simon to an unmarked Police vehicle nearby, making him sit in the rear – effectively he was now their prisoner, although he had not been told that he was under arrest for any offence.

Simon was detained and questioned within the Police car for approximately 10 minutes before the Police evidently became satisfied that his vehicle was legitimate, whereupon he was allowed to leave the Police vehicle and re-join his shocked and shaken family.

Simon was however at the scene for approximately 3 ½ hours in total, waiting for a recovery truck to arrive to collect his vehicle, which was no longer driveable (His car ultimately required extensive repairs, including replacement of the two front tyres and an alloy wheel) Furthermore, an ambulance had to be called for Simon’s family, who had suffered whiplash and seatbelt bruising injuries.

In response to the claim which I subsequently advanced on behalf of Simon and his family, West Midlands Police admitted that Simon had been driving in a perfectly normal manner, and that there was no suspicion that he had committed any driving offence, but alleged that they had “reasonable grounds” for suspecting his car was a ‘cloned’ vehicle. They further admitted that they had not made themselves known to Simon, or attempted to get him to pull over by peaceful means, but also sought to argue that a ‘pre-emptive strike’ was justified in anticipation of the vehicle not stopping if the Police revealed themselves.

Their justification for this assertion was an incident which occurred almost 2 months earlier when WMP officers were conducting speed checks in the local area and a white Mercedes motor car with the same registration as my client’s vehicle had failed to stop (nothing more than that).

It was stated that subsequent Police enquiries via Automatic Number Plate Recognition cameras (ANPR) had established that the vehicle which had failed to stop on the earlier occasion was a ‘clone’ and that the genuine vehicle was registered in Kent, had a GB patch on the number plate and a large sun roof (which the cloned car did not have).

Simon had in fact purchased the genuine motor car in Kent the day before the index incident.

Then, when Simon was driving his family in the vehicle the following day, it was apparently flagged up on the ANPR system as “A potential cloned vehicle”.

Of course, Simon’s vehicle did have a sun roof (it was the real car) so it appears that the only difference between the vehicle as driven by my client and the details the Police had on their system for the legitimate vehicle was that Simon’s registration plate was lacking a ‘GB’ sign.  Obviously however, it is not unusual for registration plates to be changed, and this is what had occurred before Simon bought the vehicle.

The mere lack of the GB marking on the number plate should not give rise to a reasonable suspicion that this was the cloned vehicle – especially because, had Simon’s car been properly observed by the Police, the other key distinguishing feature – and the one which could not be easily or cheaply changed – would have been surely noticed i.e. that Simon’s car had a  sun roof, which the cloned vehicle did not.

West Midlands Police MP also tried to make a play on the fact that Simon’s “vehicle was a long way from where the original was registered, West Midlands rather than Kent.” The UK is hardly a country the size of the USA however, and this was again no basis for the deployment of such dramatic force against Simon’s vehicle – especially because Police logs also revealed that prior to the Stinger deployment the Police had made enquiries which had established that the previous owner of the legitimate vehicle – who lived in Kent –  had notified the DVLA that he had sold it.

There was no dispute that Simon and his family were entirely innocent parties in all of this.

Rejecting the Police denial of liability, and holding them to account for their errors/ mistakes and disproportionate use of force, I am pleased to report that I secured compensation totalling £12,750 for Simon and his wife. I am also now pursuing claims on behalf of the couple’s children.

Elementary errors and the typical Police predilection to use force caused totally unnecessary shock, harm and suffering to an innocent family, and it was right to hold West Midlands Police to account.

With every expansion of Police armaments and technological capabilities, there comes an ever greater responsibility to use those devices with careful precision and proportionality.

Stingers and ANPR are, of course, potentially of great assistance to the essential functions of Police Officers at the frontline of the criminal justice system; however the Police must at all times treat such technology as tools to be carefully deployed and not toys to be played with – as I am sometimes caused to think certain officers are prone to do.

Contact me for expert advice and assistance if you, or anyone you know, has suffered as a result of Police errors and mistakes in relation to cloned vehicles and/or the use of stinger devices.

My clients’ names have been changed.

Update

I am pleased to confirm that, after negotiations, West Midlands Police agreed an out-of-court settlement of £6250 for the couple’s 3 children.

This week’s blog focuses on the case of my client Michael, on whose behalf I sued the Police for damages of £6,500 when a postal summons address error led to his wrongful arrest and detention.

In February 2021 Michael was arrested for harassment by Officers of Wiltshire Constabulary, at the behest of Surrey Police, and taken to a Police Station for interview.

He was subsequently granted Police bail with a condition of residence at a specified address in Cheshire, which belonged to Michael’s parents. 

In April 2021, Michael advised the Officer in charge of the investigation (who I will identify by the initials “CJ”), that he had been offered work in the South of England and therefore planned to relocate (albeit avoiding Surrey).

On 21 April, CJ asked my client to let her know his new address, stating that she would then update his bail conditions. 

On 29 April, Michael duly notified CJ of his new residential address in Sussex. 

That same day, CJ advised that she had emailed the Wiltshire ‘Custody Team’ to ask if Michael’s bail address could be changed from the Cheshire address to the Sussex address.

Subsequently, CJ requested that Michael provide proof of the new address, and he did this by way of email. 

On 30 April, CJ advised Michael that his new address had been approved and provided a new “bail sheet” and asked if he would also like it sent via post. The new bail sheet confirmed that my client’s approved residence was now the Sussex property, and that was where he must live and sleep each night. 

On 8 May, Michael received confirmation that a decision had been made to ‘release him under investigation’, which meant that his bail conditions no longer applied. That notification was also sent via post to his Sussex address. 

All appeared to be well. Two months later, having heard nothing further, Michael emailed CJ for an update as to the investigation. On 21 July, CJ advised in response that the case was with the Crown Prosecution Service for review, and she would update him in due course. 

Then on Saturday 25 September, Michael drove to Cheshire to visit his parents. 

On arrival late that afternoon, Michael found a letter addressed to him at the Cheshire address which at first looked like ‘junk mail’, but which when he opened, to his horror, contained a Postal Requisition/Summons requiring him to attend Staines Magistrates Court in relation to the charge of harassment on 15 September 2021 – some 10 days previously. Michael was understandably shocked/ surprised, but also exhausted given his long drive and the time of day, and decided he would try to resolve the issue the next morning. He knew this must have been an error, as the Police had been fully notified of his Sussex address. 

However, at approximately 9.30am on 27 September, my client’s father woke him with the news that there was a Police Officer downstairs with a warrant for Michael’s arrest.  Michael got up, whereupon he was arrested for failing to attend Court on 15 September.

Michael sought to explain that there had been a mistake, but to no avail.  He was transported to a local Police Station, where he was detained in a cell all day and all night. 

The following morning, Michael’s fingerprints were taken before he was then transported in handcuffs to Chester Magistrates Court, where he spent a further 4 hours detention in a Court cell. 

In Court, it was quickly accepted that there had been a ‘clerical error’ and Michael was then immediately released, and a new hearing date set for the original matter .  Needless to say, Police transportation to Court is a one-way service, even when it arises as a result of a Police negligence – and Michael now had to pay for a taxi to get home. 

Michael’s ordeal was worsened by the fact that he had arranged for his mother to have 3 days home leave from her care home, to coincide with his visit; both of his elderly parents were therefore directly caught up in the stress of the situation, which had arisen from a wholly avoidable Police error. 

I was able to swiftly secure an admission of liability from Surrey Police and an appropriate monetary settlement for Michael, but I remain shocked at how often ‘schoolboy’ errors such as this are committed by the Police – causing in this case unnecessary trauma and disruption to three people’s lives, as well as wasting significant amounts of Police and Court time and money. All for want of properly checking a postal address prior to sending a communication as significant as a Summons which, if unanswered, could lead directly to a person’s arrest. Michael himself had been meticulous in gaining Police approval of his plans to relocate and ensuring they had full details of his new address; he could not have done more, and yet he still ended up in handcuffs and lost an entire day of his life to Police custody. 

Postal Summons mistakes such as this simply aren’t acceptable, and if you or someone you know has suffered in this or a similar way, please contact me for expert advice and representation.

Highlighted in the news recently have been some shocking statistics in relation to rape investigations: victims face an agonising average wait of almost two years before the trial begins, if the case even gets that far. Figures for the 12 months to September 2021 showed that only 1.3% of the 63,136 rape offences recorded by the Police resulted in a suspect being charged – and this in an era when the video and scientific tools available to help secure a conviction are stronger than ever.

The Director of Public Prosecutions, Max Hill QC, has acknowledged a “crisis of public trust” over how the criminal justice system deals with rape and other sexual offences. The Crown Prosecution Service also highlighted how few of the reported cases are actually passed out of Police hands by being referred by local Forces to the CPS – a mere 2,747 rape cases being sent by the Police to the CPS in 2020/21.

When similar failings were in the spotlight last year, a joint report by HM Inspectorate of Constabulary and HM Crown Prosecution Service Inspectorate lamented a “deep division” between the Police and CPS as to how to solve this problem, identifying “continuing underlying tensions between the Police and the CPS, and a desire on both sides to blame the other for low charge and conviction rates.”

Home office statistics for 2021 also indicate that over 40% of rape investigations were closed because the victim did not support further action: that should not be interpreted as absolving the Police from blame, however. In many cases – such as the case study which I will present below – the courage and determination of victims to persevere through the terrible ordeal of a rape investigation and prosecution is severely tested by Police incompetence, callousness – or just simply, lack of faith in the victim in the first place.

Behind the Statistics: A Case Study

My client, whom I will refer to as Emma in this blog, was 16 years old when she was viciously attacked and raped by a stranger in the early hours of the morning of 23 August 2019. During the attack Emma sustained multiple injuries, including being choked by the rapist, and her facial piercing was ripped out. She was also robbed, in that the attacker took her mobile phone and bank card.

Following the attack Emma fled to a nearby hotel and spoke to the night porter, who called her mother. The attack was reported to the police by Emma’s father, shortly afterwards.

Two Police Response Officers then attended and the subsequent investigation was recorded on a Crime Log. Emma provided an initial account of the attack to the officers; one of the officers did write a witness statement following this interaction but was not asked for it until December 2019, whilst the other officer did not produce a witness statement at all. Sadly, this was just the beginning of a catalogue of errors and failures which would blight Emma’s case until its conclusion.

On a log entry at 05:53 the Response Officers noted an indentation in the sand on the beach where Emma indicated the attack had taken place, however the scene was not secured nor was it forensically examined, at any point.

Using a “Find My Phone” application Emma’s father was able to direct the Officers to his daughter’s mobile phone, which had been either discarded or dropped by the attacker on a nearby footpath. This was secured as evidence and placed into a sealed evidence bag.

At 06:38 officers took a brief account from the hotel night porter which differed slightly from Emma’s account as the night porter stated that Emma had initially alleged that she had been attacked by her boyfriend. Also, the night porter stated that he had not noticed any injuries to Emma.

Doubt, Distrust, and Incompetence

The case was then assigned to DC Alice Jones of CID as the Officer In Case (OIC) and supervised by DS Steven Barnes.

That morning, at a time unknown, DS Barnes retrieved Emma’s mobile phone, still in the evidence bag, from the evidence store and ripped a hole in the evidence bag in order to charge the phone. Thereafter DS Barnes circumnavigated the phone’s PIN by means unknown and accessed the phone’s data. Following this he returned the phone to the property store in the ripped evidence bag.

DS Barnes made no written record of this, and did not inform anyone of his actions; furthermore, he had not obtained Emma’s permission to access the phone.

Later that day DC Jones attended Emma’s home and talked her through the process of the investigation. Emma and her father immediately formed the impression that DC Jones did not believe Emma. Shortly after the meeting, DC Jones called Emma’s father to inform him that she thought there were a number of inconsistencies with Emma’s account, although she did not provide any specifics.

Emma’s mother noted a number of injuries to her daughter, including subconjunctival haemorrhaging to both eyes, which Emma took photographs of that afternoon, and again over the next few days. Despite the family making DC Jones aware, these photos were not seized as evidence, raising further concerns about the thoroughness of the investigation, and the attitude and commitment of the officers leading it.

That evening Emma was examined by a Forensic Medical Examiner who took intimate swabs and noted bruising to her left arm, right leg and left eye as well as subconjunctival haemorrhaging to both eyes. The Examiner noted that the injuries were consistent with Emma’s account of the attack. Emma’s clothing worn during the attack was also seized as evidence; however none of this forensic evidence was submitted for DNA analysis at this stage. House to house enquiries were made on the same day; however no report of the outcome of this was made.

On 24 August Emma provided an “ABE” (achieving best evidence) interview, which was consistent with her previous accounts of the attack and confirmed that she had had consensual sexual activity with her boyfriend earlier that night, following which she was attacked by the stranger on the beach. Giving little consideration as to the potential psychological impact, DC Jones then requested that Emma do a “walk-through” of the crime scene the following day. Emma was very uncomfortable with this suggestion, however, believing it to be proper procedure in cases of sexual assault and wishing to assist with the investigation in any way, she agreed to the walk-through.

On 25 August Emma accompanied DC Jones to the Beach to do the walk-through. To my client’s shock she found that the scene, a public beach, had not been secured and had been open to members of the public since the attack. Emma found the experience of the walk-through to be deeply traumatic, as DC Jones callously asked Emma to “re-enact” various elements of the attack, such as walking to the sea without turning around, which she had been ordered to do by the rapist after the attack. Furthermore, contrary to Force policy, DC Jones did not record the walk-through and Emma’s Sexual Offences Liaison Officer was unaware that it had occurred.

The Police now spoke to Emma’s boyfriend; however, this conversation was not video/ audio recorded and he was not asked to complete a witness statement. Emma’s boyfriend later told her that he found the questioning by the Officers to be very “strange”, in that he felt he was treated as a suspect, and that he was being pressured to confess to the attack. This further confirmed to our client that the Officers did not believe her account i.e that they did not truly think she had been attacked by a stranger that night – or in other words, their working premise appeared to be to at least doubt, if not actively disbelieve, this 16 year old victim of rape.

CCTV and Forensic Errors

In today’s ‘surveillance society’ the ubiquity of CCTV cameras in urban locations gives the Police numerous additional ‘eyes’ on criminal occurrences – provided of course, prompt action is taken to secure the footage from diverse businesses/ local authorities before it suffers routine deletion; it is hardly rocket science therefore, to make the preservation of potentially relevant CCTV footage a top priority in the investigation of any crime, let alone one as serious as rape.

However, it was not until 25 August that the Police identified possible CCTV footage opportunities and began to make enquiries for the same; somewhat unsurprisingly, the local train station responded on 29 August that relevant CCTV footage had been automatically deleted after three days.

On 30 August DC Jones retrieved CCTV footage from a nearby beach café. DC Jones then spoke to Emma and her father and informed them that it showed nothing of relevance, thereby implying that this further undermined Emma’s account. Emma was deeply distressed on hearing this, as she felt that without such evidence she was unlikely to be believed, given the coldness and apparent hostility which the Police were displaying towards her.

However, the incorrect footage had been obtained, as it covered the 24 hours after the attack took place. This mistake remained unnoticed for some time despite the footage bearing a clear date and time stamp. By the time that the mistake was identified, the correct footage had been overwritten. Emma was not informed of this gross Police error until much later.

CCTV from local Council cameras was also obtained. One camera did capture the rapist fleeing the scene following the attack, however as no further evidence had been found linking this CCTV to the attack, the Police failed to realise the relevance at that time.

On 2 September it was suggested by the Detective Inspector who had been on duty on the night of the attack, that the case should be referred to the Major Crime Investigation Team.

During this time, entries made on the Crime Log and emails exchanged between DC Jones, DS Barnes and other officers expressed concern about inconsistencies between Emma’s account of the attack compared to the initial account provided by the hotel porter. The officers openly questioned Emma’s veracity, suggesting either that she had been attacked by, or had had further consensual sexual activity with her boyfriend, and that her injuries were self-inflicted.

On 4 September DC Jones informed Emma that due to a lack of any evidence supporting her account the forensic samples had not been sent off for analysis. DC Jones then made it clear to Emma that she could ‘choose’ to not proceed further with the case. If there was any doubt as to what DC Jones herself wanted Emma to do, this was dispelled when the officer spoke to a colleague from the Serious Crime Analysis Section on 13 September, arguing that it was not in the public interest to have the forensic evidence examined.

The investigation team seemed to have made up their mind therefore: Emma was lying, and she had not after all been attacked and raped by a stranger on the beach that night. Frankly, it was this mindset which seemed to have guided DC Jones and DS Barnes’ cynical and lackadaisical attitude to the investigation from the very outset.

Despite this, an email from a Scene of Crime Officer (SOCO) on 17 September advised sending the samples for analysis any way, as Emma was unlikely to have self-inflicted her injuries. The SOCO also expressed concern that the reasoning of DC Jones to not submit the forensics for analysis would be called into question if someone else was attacked; tragically, this was exactly what happened, only two days after that warning.

The Rapist Strikes Again

On 19 September 2019 the man who had raped Emma, attacked another woman (identified in subsequent Police reports as Female B) on the same beach where Emma has been attacked.

Prompted by the second attack, the forensic evidence collected from my client, including her clothes, swabs, and mobile phone, was at last submitted by the investigation team to SOCO for analysis on 30 September. However, the DNA and fingerprint analysis of Emma’s mobile phone was subsequently refused as the hole in the evidence bag made by DS Barnes had compromised its forensic integrity (although at the time the cause of the hole was unknown).

On 7 October, Emma’s father emailed DC Jones a series of questions regarding her conduct of the investigation – and querying whether the officer had actually believed his daughter prior to the second attack. He received no substantive reply from DC Jones, who later provided an account to the IOPC complaining that she found my client’s father to be “demanding”. Evidently, asking the officer for a competent and compassionate investigation of his daughter’s rape was asking too much?

On 17 October Emma attended an E-FIT appointment. The civilian operator that conducted the appointment seemed inexperienced and although an E-FIT was produced, Emma felt that it was not an accurate reflection of the rapist, as the officer had not paid sufficient attention to her description. The E-FIT operator asked Emma to score the likeness he had produced out of 10, to which she replied that it was between 3 and 5 on the scale. The operator then told her that anything less than a 7 was “probably worthless”. Emma found the operator distant and dismissive throughout the process; his attitude further heightening her concern that the Police were disinterested in her case.

CID Failings Exposed

The cases of Emma and Female B, now jointly referred to as Operation Laurel, were then subject to reviews by the Major Crime Investigation Team (MCIT) and the National Crime Agency (NCA). The report of the NCA expressed concern that “the current resourcing and governance (of Operation Laurel) presents a strong risk of a ‘failed investigation”. This led to MCIT providing increased support to the investigation before assuming responsibility for Operation Laurel on 18 November 2019.

On 20 November a formal statement was taken from the hotel night porter who was the first person Emma had spoken to after the attack. However, due to the passage of time since the incident, he was unable to provide any significant detail above and beyond the brief account provided to the response officers.

On 6 December an officer from MCIT met with Emma and her father, who discussed with him the failings of the CID officers, and how this had significantly undermined the confidence of Emma and her family in the Police. This officer then emailed his supervisor noting a number of concerns regarding the initial investigation.

Emma’s father subsequently submitted a formal complaint regarding the conduct of the officers from CID during the investigation. However, the investigation into the complaint was put on hold until Operation Laurel had concluded.

Justice is Done

On 20 December 2019 the rapist was arrested and charged in relation to both attacks, and three days later the same man was linked to another attack, which had happened on 19 October 2019. He was subsequently convicted of the offences against Emma and the two other victims on 13 October 2020. At the trial, Emma courageously gave live evidence to help secure the rapist’s conviction.

Emma’s complaint, along with the conduct of Operation Laurel as a whole, was then referred to the IOPC. In addition, DS Barnes was also investigated for an offence under section 1 of the Computer Misuse Act 1990 for the unlawful accessing of Emma’s mobile phone, for which he received a criminal caution.

During the course of the IOPC investigation, DS Barnes provided an account denying culpability, and instead sought to blame the failings of the investigation on operational demands, and a lack of resources, experienced officers and support from MCIT. DS Barnes claimed that he had expressed his concerns regarding the lack of resources of CID and the inexperience of CID officers on a number of occasions to senior officers, however no action was taken.

DS Barnes was found to have a case to answer for misconduct. The matter proceeded to a misconduct meeting on 6 October 2021 when DS Barnes was issued with a final written warning due to the following derelictions of duty –

1. Did not secure the crime scene or ask SOCO to examine the scene;
2. Failed to ensure that the scene walk-through was recorded or otherwise conducted in accordance with ABE guidelines;
3. Did not ensure that Emma’s injuries were photographed by SOCO, and did not arrange for further photographs to be taken when further signs of injury appeared;
4. Accessed material on Emma’s mobile phone after it had been seized and exhibited, and did not take sufficient steps to ensure that any forensic or digital evidence was preserved, and did not create an auditable record of his actions and decisions;
5. Failed to ensure that the CCTV trawl was undertaken promptly, with the result that some CCTV was lost, and some relevant CCTV evidence was overlooked;
6. Failed to ensure that statements were obtained from key witnesses;
7. Failed to ensure that items were submitted for forensic examination promptly, and in one instance the wrong items were submitted;
8. Did not issue a witness appeal; and
9. Did not believe Emma.

DC Jones was also found to have a case to answer for misconduct and was given management action for her role. In an account provided to the IOPC, DC Jones acknowledged her lack of experience and training with investigations of serious sexual assault and asserted that although she was the OIC, DS Barnes had provided guidance throughout and in effect he had control of the investigation. Having subsequently had additional training to deal with victims of sexual assault, DC Jones now acknowledged the damage to Emma that her actions had caused.

In addition to the failures identified during the investigation of Emma’s case the IOPC also identified further failings in the Police handling of Female B’s case.

During DS Barnes’ misconduct meeting a statement on behalf of my client and her father was read out by the Chair pointing out that had Emma not stayed strong in the face of the adversity and disbelief by the investigating Officers, the rapist might not have been convicted.

Here therefore, is just one illustration of the tragic reality behind the headline statistics with which I began this blog; an investigation littered with basic errors from the start and almost actively undermined by officers who, either through cynicism, prejudice or inexperience, failed to believe the victim – and failed to catch the rapist before two more women had been attacked. No wonder so many rape investigations go nowhere, as this might have done had the perpetrator not struck again.

The Police need to take this criticism to heart, and take the opportunity to improve their attitude towards rape investigations substantially, rather than becoming involved in finger- pointing games with the CPS. The Police are the frontline of these investigations, and no doubt many rape victims ‘drop’ the case because they have every reason to conclude that the Police are not fighting on their side.

At the present time, I continue to represent and assist Emma, who has suffered significant psychological harm from the way the Police handled her case, in seeking appropriate compensation from the relevant force. How much rather she wishes that they had just done their job properly in the first place.

Care, compassion and competence don’t seem too much to ask for, in such traumatic circumstances.

The names of my client, and the Police officers referred to in this blog, have been changed to preserve her anonymity.

Sometimes the best thing to say, is nothing at all.

This is a message seemingly lost on a lot of Police forces when it comes to the thorny issue of ‘apologising’.

Forces seem to acknowledge that in principle they should apologise; but then find themselves, out of pride, unable to do so in practice, or do so only through gritted teeth.

Others use the word ‘apology’ as a form of passive- aggressive weaponry, in contexts where they are paying lip-service to the word – presumably as a public relations exercise – whilst not actually apologising at all: indeed, quite often their supposed apology is closer to being an insult heaped upon the complainant’s injury.

Take for example the following excerpts from a complaint investigation report which one of my clients received from the Metropolitan Police this month:

“Firstly, I would like to apologise on behalf of the Metropolitan Police Service about the name used in regards to your son … I believe the wrong surname was used and referred to within the 1st report that was provided to you.” – This is an actual and legitimate apology, albeit for a relatively minor error.

“On behalf of the Metropolitan Police Service, I would like to apologise for the fact that you and your family have had to go through this frightening experience, especially given the fact that you were all in your home and had not committed any criminal offence.” – Any suggestion that this was an ‘apology’ was undermined by the conclusion of the complaint investigation which was that, in the opinion of the Police, the frightening experience they put my client and her family through was an entirely reasonable and proportionate one, and involved no Police wrongdoing.

“On behalf of the Metropolitan Police Service I apologise for the fact that it was necessary to search your address and I fully understand how this intrusion would have added to the upset caused…” – An apology must be something more than a mere expression of sympathy for somebody else’s bad luck: it must involve real contrition and an admission of fault on the part of the ‘apologiser’: here there was again no acceptance of any fault on the part of the MPS.

“On behalf of the Metropolitan Police Service I apologise for the fact that you believe that your son was racially profiled and that because your son is black, the police chose to use a disproportionate and excessive armed response.” – This is again not an apology (for the report then purports to exonerate all officers involved of racial bias/ prejudice) and indeed appears to be less even than an expression of ‘third party sympathy’ (I’m sorry that happened to you) and more a species of gaslighting: far more provocative when you think about what it is saying in the wider context of the Police response, which is really this: “I don’t apologise for the fact that you wrongly believe your son was racially profiled, but I will taunt, mock or otherwise belittle you by using that word in a context where we both know it’s not meant, and is in fact inferring that your judgment is wrong/ impaired or that you are overly sensitive…”

On the face of those statements, a casual observer might think that the Metropolitan Police Service had offered no fewer than four apologies to my client. In the wider context of the report however, it is absolutely clear that only in regards to the first statement was a real apology being offered, and that the powerful word “sorry”, which can do so much good, both in the context of repairing harm done to an individual who has suffered Police misconduct, and in building wider public and community trust, was on three occasions being taken in vain.

Sorry Is the Hardest Word

This brings me back on to the subject of my client Brett Chamberlain’s case, about which I have previously blogged. Brett received a significant amount of compensation, plus legal costs, in recognition of the fact that he had been unlawfully arrested by Devon & Cornwall Police, a claim which it was necessary for him to bring after his initial complaint had been wrongly rejected (with the Police even going as far at that stage of still accusing him of a non-existent crime of ‘bilking’).

Shamefully, after agreeing to apologise to Brett as a key part of the settlement deal, Devon & Cornwall have failed to do so, hiding behind the following sham apology issued by the Deputy Chief Constable-

“The force has the expectation of the highest standards from its officers and staff and we are sorry that you feel these have not been upheld in this matter. The force has taken on board any lessons which can be learned to ensure it continues to offer the best possible service to the public.”

As can be noted, if the three words I have highlighted were deleted, the message would at least constitute an actual, if somewhat lukewarm, apology; with those words as written, however, it is rendered not an apology at all.

Although I pressed Devon & Cornwall for a full and proper letter of apology, they have maintained their stance, out of what I can only assume is pride and petulance: sorry seems to be such a difficult word for them that I am drawn to question whether there are actually any grown-ups in the room, on the Police side of this debate.

Brett himself has adopted a far more mature and reasonable approach to this issue than the entire institution of Devon & Cornwall Police, from front line officers to senior management, via the legal department, seem capable of, as he recently wrote to me in the following terms-

“Funny how they’re not too fussed about dishing out £5K but a letter of apology is just too much to ask…It’s not really an apology when it’s forced out of them anyway. There’s little to no chance of reforming the Police when they can’t even admit their mistakes in a relatively trivial case. That’s why guys like you do a great job of holding them to account…”

On many occasions, it is my job to teach the Police what the law actually says, and what the parameters of their power within it truly are. Is it also necessary for me to teach them that professional communication and honest dealings should not involve the use of weasel words or doublespeak phrases as barricades to hide behind? Sorry should mean sorry, Chief Constable – and please don’t insult us all by saying it, when you don’t mean it – or indeed when intending the opposite of the word, you mendaciously add insult to injury.

Say sorry honestly, or not at all.

This is the story of my client Hannah Currie who was made the victim not only of Police trespass and violence in her own home, but also – far worse in many ways – a mendacious attempt to frame her for a criminal offence, probably as a tactical ‘smokescreen’ to hide the Police officers’ own flagrantly unlawful actions.

Trespass and Lies

On the morning of 20 January 2018, Hannah’s 12-month-old son Dharma was bitten by the family’s pet beagle.

Although the bite was not severe, Hannah was understandably very distressed and protective of her young son; she immediately washed the wound out and then she and her partner Craig, Dharma’s father, drove Dharma to their local hospital.

The treating hospital nurse made a statement later that day in which he recorded that on examination: “there was no evidence of any severe damage and (the injuries) appeared more consistent with a dog having a quick ‘nip’ and release”. The nurse had: “no immediate concerns for the child (who) …looked well looked after and healthy and the parents seemed genuinely concerned and as far as I could tell it appeared an innocent accident.”

However, Craig became angry/verbally abusive towards the nurse, when he questioned what the couple intended to do about the dog.

Upon leaving the hospital, Hannah in fact telephoned a Veterinary practice and arranged for the dog to be immediately euthanized. Meanwhile the nurse at the hospital had phoned the Police to report Craig’s aggressive behaviour, in the context of concern for Dharma’s welfare.

One of the officers tasked to attend from West Mercia Police later made a statement, recording that he and other officers were directed to: “conduct a safe and well check on the child and also to ensure that the dog was removed from the house… The matter involving the dog bite needed to be investigated but providing that the child was considered to be safe and well and that the dog was no longer at the address, then this matter could be dealt with in slow-time on another occasion”.

At approximately 16.20 that evening, four Officers of West Mercia Police – PC Elland, PC Charles, PC Davies and PC Middleton – attended my client’s home. Upon Hannah opening the outer porch door, which swung outwards, PC Elland immediately held the door open to prevent it from being closed.

PC Charles then asked to come in. Hannah refused entry because of a previous unwelcome incident involving officers of West Mercia Police; she asked PC Elland to let go of the door and move away. PC Elland refused. A female officer, PC Davies, then asked if she and Hannah could talk. Hannah indicated that she was prepared to discuss matters with this officer at the front door, if the other officers moved away, however PC Elland again refused. Hannah explicitly stated that the officers were trespassing on her property (being on the driveway) and that their implied right to be on the premises was removed.

PC Davies advised that they had attended: “To make sure Dharma is okay and to have a chat to you about it and to your partner.” Hannah explained the circumstances of the earlier incident, that she had immediately sought medical treatment for her son, that she had taken the dog to the Vets that afternoon and had the dog put to sleep, and that her son was safe. PC Davies replied: “I’m sure that’s the case”.

Hannah now returned inside her home, shutting the inner door behind her, leaving the officers at the outer porch door.

Indeed, PC Charles then telephoned the Vets who confirmed that the family’s dog had been euthanized. PC Charles then notified all officers present of this information.

Hannah, inside the house, received a telephone call from DS Thomas. DS Thomas demanded that, although Hannah had taken appropriate action as regards medical attention for Dharma and putting the dog down, she must nevertheless allow the officers entry into the premises, otherwise Dharma would be taken into care. Hannah refused – but did explain that she was willing to speak to officers the next day once she and her partner had got over events and/or to speak to PC Davies on her driveway, if the other Officers present left.

In my opinion, this was a more than reasonable suggestion, but meanwhile the original four Officers outside the family’s home had now been joined by PC Hornby, PS Ainsworth, PC Pritchard and PC Scully and at approximately 16.45, PS Ainsworth directed that forcible entry be made into the premises, purportedly under Section 17 of the Police and Criminal Evidence Act (PACE).

In other words, the Police ‘welfare visit’ – despite officers having seen the family, and having established that the dog was no longer in the house (indeed, had been put down) – now escalated into a Police siege and assault of the property.

Section 17 of PACE grants Police officers powers to enter and to search private premises in certain specific situations, generally connected with exercising powers of arrest – however, there was no suggestion even on the Police version of events that they had evidence indicating that any criminal offence had been committed, or that they were seeking to arrest either Hannah or Craig. The remaining justification for exercising a power of entry under Section 17 was the emergency power to enter in order to “save life and limb” but such a situation manifestly did not apply; the dog was gone, Dharma had been treated appropriately at hospital on his parents’ initiative, and the only threat to any occupant of the house was now coming from the Police themselves.

In such a situation, the Police had no right to be on Hannah’s driveway, let alone inside her home, and all of their actions taken after she had instructed them to go away were as trespassers. Hannah was entirely in the right in what she had said to the officers, but they, of course, had might on their side.

PC Elland and PC Pritchard now gained entry into the rear garden by lifting a garden fence which was damaged in the process; the two officers then further gained entry into the premises via an unlocked back patio door.

PS Ainsworth and PC Hornby also gained entry. Having entered the house, PS Ainsworth unholstered his taser, shouting: “Taser”, and then pointed his Taser gun not only towards Hannah and Craig but also – in effect – Dharma who at that point was being cradled in his mother’s arms. The four Officers were at this point in a back room of the house, which connected to the living room.

Hannah was standing in the doorway between the back room and the living room with her son cradled in her left arm. She again told the officers to: “leave”. The officers refused, and indeed one officer now touched Hannah’s arms to which she shouted: “Get off me…assault.”

Again Hannah explained all of the actions she had taken after her son had been bitten. An officer believed to be PC Hornby replied: “We do need to chat, we’d rather do that on calm terms”. Hannah quite fairly responded that: “the one guy (PC Elland) was asked to leave and I said to the lady (PC Davies) if he moves to the end of the driveway, I will happily speak to her”. PC Hornby asked: “Are you willing to talk to her?” and Hannah replied: “When you’re off my property”. PC Hornby then stated: “There are certain things we need to do, we cannot leave the house right now, we do need to have a chat”.

Hannah yet again explained background events and asserted that she had taken all reasonable steps in the circumstances. PC Hornby confirmed that he knew that their dog had been euthanized: “But it would be remiss of us not to check your address for other dogs”. Hannah replied: “We haven’t got any other dogs”.

This was of course entirely true, and the Police had no evidence to suggest otherwise; they had no excuse for intruding on the family’s property – but as is often the case, Police arrogance and assertion of their power seemed to trump lesser matters such as the letter of the law…

Indeed, at this moment, other officers began to force entry to the outer porch door which caused Hannah to become distracted, and PC Hornby and PS Ainsworth stepped past her and into the living room.

PC Elland, who was still in the back room, was now standing at the living room doorway and Hannah directed him to stay where he was and raised her right hand in a defensive manner chest high, but did not touch PC Elland.

Nevertheless, PC Elland surged forwards and grabbed Hannah’s right arm, forcing it behind her back and in doing so, twisted her around. Hannah protested: “Get off me” to which PC Elland shouted out: “Assault” and a second officer then stated: “You’re under arrest for assault”. Whilst the officer was manhandling Hannah in this way, she was still holding Dharma in her left arm, and thus the officer’s actions were now putting the child at risk.

Hannah was understandably reluctant to let go of her son, but after a short while said: “Get this person (PC Elland) behind me to let go of my arm and then I will let go of my son”. PC Elland however continued to manhandle Hannah such that she screamed: “You’re hurting me, you’re hurting me”. At this, Dharma also began to scream in distress. Eventually, after a short period, Hannah released her grip on Dharma (who was taken by an officer) causing both mother and child further distress.

With Dharma ‘out of the way’ Hannah was then violently taken to the ground by the officers, and during that process, she felt pressure on her ear, scalp, arms and shoulder, and a knee on the side of her head. She was then handcuffed to the rear.

Hannah again correctly asserted that she had been in her rights to refuse entry; an officer responded that she was not.

Hannah was then caused further distress by an officer stating that Dharma would be taken into care unless a suitable family member could care for her son; she therefore had to provide her brother’s name and address to the Police. She was then taken away from her son and placed into custody at Hereford Police Station.

After Hannah had been taken away, the officers continued to search her house, including upstairs and then into the loft where boxes were searched; what on Earth were they looking for? Being familiar with the mental play-book for officers in this sort of situation, I would guess that it was evidence of an unconnected crime to ‘retrospectively’ justify the officers illegal entry into the premises in the first place.

The custody record subsequently created at the Police Station indicated that Hannah had been arrested at 16.55 by PC Pritchard for “assaulting a police officer”.

The custody record described the circumstances of arrest as:

“Officers have been at the address and entered to check on the 1 year old child, Officers have attempted to enter the address and the detained has barged at the Officer and it is alleged that the detainee has swung a fist at the Officer”.

Hannah was processed, searched and then obliged to provide her fingerprints and DNA sample and be photographed, before being incarcerated in a cell.

At 19.40, PC Charles then further arrested Hannah for being the owner or person in charge of a dog dangerously out of control causing injury.

An officer believed to be PS Ainsworth then contacted Social Services to report events. A call at 20.29 on 20.01.18 was recorded by a social worker as follows:

…”both parents were aggressive, verbally and physically and had (sic) not regard for Dharma’s welfare.

Father was told that a taser would be used so mother stood in front holding Dharma to protect father. She then hit a police officer while holding Dharma and would not let him go. Police had to restrain her by one arm. They begged her to hand him over but she continued to resist. The home address is being described as filthy and covered in mess and clutter. Police have used body cam to record it.

Parents will receive bail conditions that will not allow them contact with Dharma.”

At 21.13, Hannah was seen by a Health Professional, who described Hannah as being “very emotional and tearful… complaining of a headache and requesting pain relief, pain and redness to wrists and a tender area to left of forehead”.

At approximately 23.30 Hannah was further arrested for “child neglect” on the basis that she had placed herself and Dharma between PS Ainsworth and Craig, whilst PS Ainsworth was pointing his Taser at Craig. This was really the very definition of “throwing the book” at Hannah, and was an outrageous twisting of moral responsibility for what had occurred; PS Ainsworth was a trespasser who had entered the family home and brandished an electroshock/ projectile weapon, and yet Hannah was now apparently to blame for that. The Police were evidently as determined to ‘get’ her on one charge or another, as they were to pretend that they had had lawful justification to enter her home by force in the first place.

At 23.30, Hannah was interviewed under caution, during which she denied committing any offence. Despite the interview concluding by 00.44, Hannah was returned to her cell and kept in custody until approximately 05.30 when she was bailed with conditions to return to the Police Station on 10th February 2018. The other bail conditions were not to have any unsupervised contact with any child under the age of 16, any such contact to be supervised by a person approved by social services and not to attend Hereford Hospital prior to 12.00 on 21st January 2018 except in case of genuine medical emergency.

Upon her return home, Hannah realised that the Defendant’s officers had retained her house and car keys, and she was obliged to return to the police station so as to retrieve the same.

Later that day, Hannah and Craig attended Hereford Hospital to meet Hannah’s brother and then travelled to his house to supply equipment, set up and discuss Dharma’s routine, creams, and equipment. Hannah’s brother then collected Dharma from Hereford Hospital and cared for him for the next 5 days.

To the distress that anyone would suffer after being unlawfully assaulted and arrested during a Police ‘home invasion’, was added for Hannah the anguish of a parent falsely accused of neglecting her child, and now forcibly separated from him.

Following considerable effort, Hannah’s bail conditions were eventually removed, and she was re-united with Dharma again.

Subsequently, Hannah was advised that she was not required to return to the Police Station, and she was instead summonsed to attend Hereford Magistrates’ Court on 25 April 2018 for “assaulting a Police Officer”.

Victory at Court

Hannah attended Court on 25 April 2018 and pleaded not guilty. At trial on 17 September 2018, the case against her was completely dismissed.

Justice was thus eventually done – but not until Hannah had suffered almost 9 months of hell as a result of this “welfare” visit by the Police, all as a result of officers grossly and unnecessarily exceeding their powers and prosecuting her for an offence of which she was entirely innocent; in her own words it was an “agonising” wait for trial in the face of the malicious allegations brought against her.

Seeking restitution for her suffering, Hannah instructed me to pursue a claim against the Police.

In response to the claim, West Mercia Police admitted liability for trespass, false imprisonment and assault and battery but denied malicious prosecution/ misfeasance in public office. They put forwards an initial settlement offer of only £3,000, but by bringing Court proceedings on behalf of Hannah I was able to get them to increase this to the sum of £20,000; properly reflective of their wrongdoing towards Hannah and the serious harm they had caused to her.

Afterwards, Hannah wrote to me in the following very kind and eloquent terms-

Dear Iain,
Whilst words can hardly express my heartfelt gratitude to you for all the care and concern you have shown me, and for working tirelessly to ensure that the law worked in our favour. I have no doubt if it weren’t for your analytical skills and knowledge, the matter wouldn’t have been settled by now.

I hope you will share this testimonial with readers of your blog to help anyone who stumbles across your website looking for your services, that they have indeed arrived at the right solicitor for the job.
Following the events which lead to your instruction… I was at a place where I felt closure had not been reached. Having achieved a law degree myself I was disgusted by the conduct of West Mercia Police who I had been brought up to believe are employed to uphold the laws and protect the public. Their shockingly hostile and overzealous behaviours, erring more towards mob mentality than any sort of policing or indeed law abiding behaviour had caused unquantifiable harm to me and my family on a day where we had been through quite enough. Not only had they acted unlawfully in forcing entry to my home they then made spiteful accusations in a deliberate attempt to taint my character and excuse their unacceptable behaviours, with my son being the biggest innocent victim. On the day the most traumatic thing that had happened to him in his young life, he was ripped from the comfort and security of his parents and home, no doubt believing we had abandoned him when there was absolutely no need.

Not being one for being ‘bullied’ once the criminal trial had been dismissed, I set about requesting the body worn video footage of the event. Upon receipt I became certain there were grounds for a claim/complaint and set about exploring what was involved and whether this was something I could do myself. Having had poor experience of the police complaint processes in the past, when witness to a questionable arrest of another, I was unconvinced this would bring closure. I came across your blog which was accessible and relatable and echoed my feeling about the police complaint process being in need of reform. I read your ‘about’ section and knew instantly you were the right solicitor for me and my family.

Your website was my introduction to yourself and detailed examples of how you had helped so many others, who had also been wronged by the very people you are meant to call on for help. This all led me to completing the online enquiry form. The free text field allowed me to express, in my own words, my version of the events and where I felt there were grounds for a claim. It was extremely easy to do and within four hours you had replied, much to my delight. I finally felt heard and dazzled at your prompt response. Over the following three years you have continued to keep in touch by phone, post and email, I always felt you listened and advised me appropriately. I cannot tell you how relieved I am that we have finally arrived at a life changing settlement. Whilst I didn’t request a formal apology from West Mercia Police or have a day in court to say what I wished, you were able to help remove the malicious accusation from the PNC which was very important to me.

In closing, I do hope with the amazing service you continue to offer that in future the police service will come to recognise it is not sustainable to operate in their current way. The public need to trust the police and to do this THEY need to follow the law and also protect the public from lengthy litigation to correct any errors on their part at a much earlier stage. I hope they move towards a more transparent and open process of being able to say “sorry” and mean it by sustained meaningful change in the ways they conduct themselves.

Thanks once again for your legal advice, time and I will continue to recommend you to anyone and everyone who will listen. I am blown away by your integrity and all the hard work you did on my behalf. I will always be grateful for all of your efforts and kindness shown – you are deservedly a legend in this field.

Keep fighting the good fight!

I certainly intend to!

The names of my client’s son and the Police officers in this blog have been changed.

A case which I have recently concluded on behalf of one of my clients, whom I shall identify for the purposes of this blog by the pseudonym Catherine, centred around one of the most shocking ‘bureaucratic errors’ that I have ever encountered: the release by both the Police and the Crown Prosecution Service of a rape victim’s personal data to her attacker.

Owing to the need to entirely protect my client’s anonymity, I will restrict the details provided to a minimum.

Catherine was the victim of a serious sexual assault (stranger rape) which was subsequently investigated by her local Police Force, and shortly thereafter, the perpetrator of the rape, a man whom I shall identify as “D” was arrested and remanded into custody.

Thereafter, an unredacted bundle of evidence, which had been assembled by the Police, was disclosed by the CPS to D (who was being held on remand in prison). Included amongst this disclosure was Catherine’s full name and home address.

On discovering this ‘mistake’, the Police made contact with Catherine, although they didn’t initially admit their own instrumental role in what had happened, merely telling Catherine that “somehow” her name and address had been disclosed to her attacker. The Police then sought to alleviate concerns as to Catherine’s personal safety by fitting an emergency alarm at her home address (where she lived with her mother and younger siblings) and also giving her a ‘rape alarm’ device to carry around with her; however, she was so shaken and disturbed by this revelation that she actually crashed her car on the way home from work the following day, fortunately avoiding serious injury.

Then, only weeks later, Officers came to visit Catherine at her place of work to give her further information about the disclosure of her sensitive personal data; Catherine was now told that D had written a letter to the Police, telling them that he was in possession of these documents, and making abusive comments about her – which had prompted a search of his cell, and recovery of the documents.

In the months following the rape Catherine had been trying to get her life back to normality; however, these data breach revelations set back her recovery significantly, by causing her terrible concern about the safety of herself and her family. Although D was in custody, Catherine feared that he could have passed on information to someone outside of prison and that they might seek to intimidate and/or assault her and her family, in the run-up to the trial (in which D was pleading not guilty). She felt as though a “bombshell” had gone off in her life and that she could no longer trust the Police to fully protect her; indeed, she felt that they had ‘exposed’ her and given the rapist control back over her.

The Police were blaming the CPS lawyers, and vice versa; Catherine felt that she couldn’t trust anyone and began to suffer flashbacks to the rape, and recurrent dreams in which she was being threatened. Furthermore, as a direct result of the risk which the Police now believed her to be in, Catherine and her family had to hastily relocate to another address, leaving behind the family home in which she had grown up.

In other words, what the Police and CPS had done, had stripped away the security and comfort of the one refuge where she should have been able to feel entirely safe and protected – her family home – and turned it from being a place of healing into a place of danger where her attacker might be able to find her, either now or in the future. The only way to resolve this risk was therefore the massive upheaval of Catherine and all of her family moving to a different location, in circumstances which Catherine and her mother were reluctant to fully explain to Catherine’s younger siblings.

Of course, this bricks- and- mortar relocation could not in itself alleviate Catherine’s concerns for her safety, given the details which her attacker had been made privy to about her; and all of this added massively to the stress which burdens any rape victim who is facing the tortuous criminal trial to try to ensure that her attacker stays behind bars. Catherine felt anxious and panicky most of the time, unable to relax at home (even in the new house) and frequently checking that doors and windows were secure.

Just over a year after Catherine’s rape, D was convicted of that offence, having changed his plea to guilty a day before the trial. He received a mandatory life sentence, though Catherine knew that was not a guarantee he would never be released – and she continued to fear that he could track her down and harm her by means of an associate outside of prison.

The combined effect of these events led to Catherine having to seek psychiatric treatment, and to suffer so much stress that she quit her job, experiencing a (thankfully temporary) period of unemployment. Thereafter, she found herself having to embark on a new career in a different, and less satisfying line of employment.

The Data Breach Claim

I received instructions from Catherine to bring a claim against both the Police and the CPS. This was on the basis that the unredacted evidential material containing Catherne’s personal information, had been first assembled by the Police and then disclosed to D by the CPS (via D’s criminal defence solicitors).

Receiving no formal response from either proposed defendant to the letters of claim, I had no choice but to institute court proceedings on behalf of Catherine in November 2019.

Sadly, neither the Police nor the CPS took the right step of promptly admitting liability; Catherine throughout this ordeal had done all she could to help herself get back to normal – including forging a new career after her break-down, in which she was now prospering – but the Police and the CPS having created this huge burden on her shoulders in the first place, then compounded their wrongdoing by disputing her claim for compensation. Rather than those two organisations, who are such close partners in the criminal justice system, putting their heads together to settle the claim, they denied liability individually – each disputing that they actually owed Catherine a duty of care or that what they had done gave her any right to compensation under the Data Protection Act – and argued that in the alternative, it was the other organisation who was to blame.

Thus Catherine was now put through the additional stress of another contested court case, in which she had to repeatedly give evidence and talk about the impact the data breach had had upon her life after the rape, including undergoing psychiatric examinations by both her own medical expert and one appointed by the Police/CPS; once more re-opening the mental wounds/ trauma of these events. To make matters worse, the medical report of the Police/ CPS psychiatrist was only disclosed at an extremely late stage, in breach of the Court directions timetable, putting the trial itself in jeopardy and only increasing the stress and worry of the litigation process for Catherine. Such conduct by the Defendants frankly smacked of a lackadaisical attitude and disrespect towards both Catherine and the Court, especially egregious given the underlying facts of this case.

It was not until late November 2021, after some 2 years of litigation, and only a few weeks before the scheduled trial of the claim that the Defendants settled Catherine’s claim in the sum of £40,000 damages (their initial offer of £24,000 having been quite properly rejected).

In the meantime however, Catherine had been taken once again almost all the way to trial; she had been wronged by major organisational failings whereby the Police and CPS, both of whom owed her a duty of careful handling of the disclosure process, had released her home address to the last person on Earth it should be provided to, and she was wronged by both organisations once again by the manner in which they adopted the approach of callous bean-counters, and dragged out her suffering through the civil court process (largely prolonged, I believe, by their own internal bickering over their respective share of the responsibility) – rather than properly and promptly compensating her for the gross error they had jointly committed.

It sometimes seems too easy for those agencies who run our criminal justice system to overlook the victims of crime; in this case, a victim of crime whom they further victimised by a data breach which was easily avoidable, and which they then contested – adopting the role not of protectors, but adversaries.

Justice was eventually done, but at significant cost to all involved.

My final word on the case of Yvonne Farrell this week, relates not to the original wrongdoing by Hertfordshire Constabulary – as heinous as it was – but to the attitude and conduct of the Police thereafter, which was littered with obstruction, denial, delay, excuses, and counter- accusations; everything, in fact, apart from an apology until the very last moment.

I felt the need to highlight this after reading the press release which Hertfordshire Police issued following Yvonne’s interview on Newsnight. Therein, the Police strove to present themselves as having been on Yvonne’s side throughout –

“The fair treatment of people detained in custody in Hertfordshire is very important. Following a review of the circumstances we accepted that, regrettably, we didn’t get everything right on this occasion four years ago. We were in regular contact with the complainant’s legal team throughout and the force agreed to settle the matter in recognition of the distress caused. The matter was settled amicably.”

In reality, that statement is nothing more than misleading ‘spin’. Tell me how ‘amicable’ you find the following Police actions/ responses-

• 2/8/18 Yvonne is wrongfully arrested and subjected to an unlawful strip- search
• 15/8/18 Yvonne lodges her complaint
• 15/3/19 Hertfordshire Professional Standards Department provide their response in a 26 page report – entirely rejecting all aspects of Yvonne’s complaint and purporting to find that her claim was entirely lawful and that there was “there is no evidence to suggest the actions of the officers have fallen below the Standards of Professional Behaviour…”
• 14/3/20 I submit a formal letter of claim on behalf of Yvonne
• 4/6/20 Hertfordshire Police Legal Services deny all liability (“your client’s claim is denied in its entirety”) relying heavily on the findings of the Complaint Report (praised by Legal Services as having been “an extensive PSD investigation”) but make a confidential offer of £800 damages.
• Their offer was eventually increased to £5,000 but the denial of liability was maintained.
• 1/9/20 I issued Court proceedings on behalf of Yvonne.
• 19/11/20 The Chief Constable of Hertfordshire filed a Defence to the claim, again entirely denying liability and alleging “All force was necessary, reasonable and lawful.”
• 15/12/20 The Chief Constable accepted the Claimant’s offer to settle her claim for £45,000 damages and agreed to provide a letter of apology.

The reality is that this wasn’t an amicable process, with the Police trying to set things right from the outset, as their publicity implies. Instead, the Force’s long- established internal processes – designed, in my opinion, to demoralise victims of misconduct, deter complaints and frighten off claims (through the spectre of lengthy and costly contested court proceedings) – went to work to obfuscate Police wrongdoing and frustrate a legitimate complaint and claim.

It is those processes, the institutional response to external criticism, which need just as much reform as the dirty practice of stripping detainees of their clothes along with their rights.

Let me therefore offer a re-worded version of Hertfordshire’s statement which more accurately reflects the truth-

“The fair treatment of people detained in custody in Hertfordshire was sadly not as important to us as protecting our officers from criticism. Following a review of the circumstances we wrongly maintained that we had got everything right. We were in regular contact with the complainant’s legal team throughout, repeatedly denying liability and thereby adding to the distress caused to her; and the force agreed to settle the matter only after being sued.”