I was recently interviewed in my firm’s London offices by Mike Semple-Piggott for the Charon QC law tour. We discussed civil actions against the police and police misconduct.
Mike is a popular and experienced blogger who uses the pseudonym ‘Charon QC’ on his many websites. He is touring the country interviewing lawyers, academics and others involved in the legal profession.
The interview was wide-ranging and interesting to do. I described some of the practical issues of pursuing claims against the police using case studies and current examples. We also addressed public interest issues in the widest sense.
According to Mr. Mitchell, other than swearing at a police officer under his breath in exasperation for the officer’s small mindedness for refusing to open the main gate of Downing Street, he did nothing wrong on the evening of 19 September 2012.
An extract from the log of the officer with whom Mr. Mitchell spoke states how Mr. Mitchell, in the presence of ‘several members of public’ said,
“Best you learn your f—— place…you don’t run this f—— government…You’re f—— plebs.”
The police officer’s log continued,
“The members of public looked visibly shocked and I was somewhat taken aback by the language used and the view expressed by a senior government official. I cannot say if this statement was aimed at me individually, or the officers present or the police service as a whole.”
Tellingly, it concluded,
‘I warned Mr. MITCHELL that he should not swear, and if he continued to do so I would have no option but to arrest him under the Public Order Act, saying “Please don’t swear at me Sir. If you continue to I will have no option but to arrest you under the public order act”. Mr. MITCHELL was then silent and left saying “you haven’t heard the last of this” as he cycled off.’
This account was corroborated by an email from an eyewitness, who claimed to be one of those members of the public looking on.
The police log and media storm that followed was enough to ensure that Mr. Mitchell’s position as Chief Whip was untenable and after a month, he relented to pressure and resigned.
Following a Channel 4 investigation, it now transpires that the independent eye-witness was in fact a serving police officer with Scotland Yard’s diplomatic protection group. Mr. Mitchell claims the man “was nowhere near Downing Street that night”.
Furthermore, CCTV footage allegedly vindicates Mr. Mitchell in that it shows him showing “no sign of any loss of temper or bodily aggression”, and given that the scene lasts only 16 seconds, “hardly time for…a full-on rant”.
And contrary to the police officer’s log, only one member of the public can be seen in the vicinity.
The Independent Police Complaints Commission is now investigating and two men have been arrested, one of whom is the serving officer who allegedly sent the email to his MP.
Similar actions against the police cases
I have previously blogged on how the police use s.5 Public Order Act to pursue unjustified prosecutions. In a recent case involving my client Mr. A, he was only accused of causing ‘harassment, alarm or distress’ when South Yorkshire Police found out that he had lodged a complaint after being attacked by a police dog.
In another actions against the police case I am pursuing to trial, Mr. X made a complaint about a police officer he saw shopping while on duty. His ‘reward’ for highlighting what he felt was a waste of police resources was to be prosecuted for using ‘threatening and abusive behaviour’, an allegation that appears to be totally unfounded in light of available CCTV footage.
And in a further matter I have, my client Mr. W was accosted by police officers as he approached a cash machine. Without explanation they took his bank card, searched him and demanded his name and address. When he complained about his treatment he was arrested, detained and issued with a fixed penalty notice for ‘using words or behaviour likely to cause alarm or distress’. Mr. W fought the charge and ultimately his prosecution was dismissed.
I am confident my clients will recover significant compensation for their actions against the policeclaims for malicious prosecution.
Mr. Mitchell and my clients share being alleged to have acted contrary to the same section of the Public Order Act, S.5(1) which states:
‘A person is guilty of an offence if he: (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.’
As it is a two stage offence, for a conviction to stand, it has to be established that:
the person used threatening, abusive or insulting words or behaviour, and
that the said words or behaviour were within the hearing or sight of a person likely to be upset.
Andrew Mitchell has avoided (unlike many of my clients) a criminal prosecution. Had he been prosecuted however, he would no doubt have contested the allegation. Whilst he accepts swearing within earshot of the officer (muttering “I thought you guys were supposed to f—— help us” under his breath as he wheeled his bike into Whitehall), he would argue that such behaviour could never constitute an outrage against public decency and that the officer has deliberately exaggerated his account of misconduct.
Fortunately, he now has CCTV footage that he says discredits the officer’s version of events.
I am afraid that I routinely come across cases where police officers appear to have fabricated and or exaggerated their evidence. Police officers often take affront when their authority is challenged (legitimately or not) and are well aware that a Court is unlikely to deem behaviour as sufficient to amount to a breach of Section 5 when the conduct is said to have been in their presence only. In the circumstances, the words and behaviour used are deliberately ‘sexed up’ and mysterious members of the public are created so as to justify an arrest/ prosecution.
Too often, police officers get away with it. There are not many who can call on evidence to prove their innocence or who have the will to challenge such behaviour.
Mr. Mitchell maintains that his life-long confidence in the police has been misplaced. He said,
‘If you had told me on September 19 that the sort of experience I have had could have happened in the country today, I would not have believed you…If it can happen to me, it could surely happen to anyone.’
It appears I’m not the only one interested in Max Clifford’s arrest last week.
In my latest blog post (which you can read by clicking here), I queried whether the police really needed to arrest him and explained that the Police have to justify necessity in order to prove that an arrest is lawful.
Being arrested is no laughing matter but Mr. Clifford may be amused to read this article on satirical website ‘The Daily Mash’. It seems that the ‘dawn raid’ he was subjected to as part of Operation Yewtree would make great Christmas television!
Another day & yet another high-profile arrest for alleged historic sexual abuse. Yesterday, the well-known publicist, Max Clifford, was arrested by the Metropolitan Police on suspicion of sex offences that date back 35 years.
Mr Clifford, the self-styled ‘PR guru’, was arrested shortly after 7.30 am yesterday (Thursday 6 December) at his home in Hersham, Surrey and taken to a police station in Central London where he was detained and quizzed for 12 hours.
Following his arrest, police searched his house for several hours before emerging with sealed black evidence bags which were placed into the back of two vans.
Undoubtedly the arrest came like a bolt out of the blue for Mr Clifford, who spoke out only a few months ago about the police enquiry into the conduct of BBC DJ and TV presenter Jimmy Saville.
He said that he had been approached by celebrities from the 1960’s and 1970’s who were ‘frightened to death’ that they would be caught up in the scandal.
It is likely that the allegations of sexual abuse have been prompted by the Jimmy Saville enquiry. Indeed, the Metropolitan Police have confirmed that the arrest is part of Operation Yewtree, which is looking at three categories of alleged sexual offences: those involving Saville; those involving Saville and others; and those involving others. Mr Clifford’s arrest comes under the later group.
Mr Clifford has vehemently denied the allegations which led to his arrest, saying that they dated as far back as 1977 and that ‘these allegations are damaging and totally untrue’.
Justifying arrest- the necessity test
The burden of proof falls on the police to justify any arrest. This has proven to be so even during times of great duress or urgency, such as during the darkest days of World War II, when Lord Atkin stated,
“[I]n English law every imprisonment is prima facie unlawful and … it is for a person directing imprisonment to justify his act.” (Liversidge v Anderson (1942))
Historically, under Section 24 of the Police and Criminal Evidence Act (1984) (‘PACE’), an Officer can arrest where he honestly suspects the commission of an offence and he holds that suspicion on reasonable grounds. Those grounds need to be more than a hunch, but can be less than the standard for admissible evidence. I have recently written a guest blog post on the Charon QC website about another recent high-profile arrest, that of Christopher Jeffries, which expands on this.
In 2006, section 24 of PACE was amended to allow an officer to only arrest in the above circumstances, if s/he also had reasonable grounds for believing that it was necessary to arrest for any of the following reasons (emphasis added)
(a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person’s name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);
(b) correspondingly as regards the person’s address;
(c) to prevent the person in question –
(i) causing physical injury to himself or any other person;
(ii) suffering physical injury;
(iii)causing loss of or damage to property;
(iv) committing an offence against public decency (subject to subsection (6)); or
(v) causing an unlawful obstruction of the highway;
(d) to protect a child or other vulnerable person from the person in question;
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.
This was clarified in Hayes v Merseyside Police (2011), when the Court of Appeal established that the test was simply whether:
a. the officer actually believed that arrest was necessary, and for one of the reasons specified above; and
b. that objectively that belief was reasonable.
Common police claims
The consequence of the above statutory guidance and case-law is that I anticipate the Police will argue that the arrest of Mr Clifford was necessary for the purpose of ‘prompt and effective investigation’ by questioning at a formal interview.
But could the Police have simply invited Mr Clifford to attend the police station at a mutually convenient time to give a statement under caution (i.e. voluntary attendance), especially given the age of the allegations?
Was a dramatic ‘dawn raid’ formal arrest really necessary?
The Police would say that the mere fact of an arrest pre-interview will put more pressure on the arrested person during questioning. They may also point out that making a formal arrest prevents any interruption of having to make an arrest should the voluntary attender seek to leave.
They could also argue that arrest was justified due to the possible need to take certain protective measures that can only be taken following arrest, i.e. imposing bail conditions.
There has been limited litigation on this point but it is clear that the Courts will give the Police substantial leeway and that unless there appears to be compelling evidence that the officer knew or ought to have known that the suspect would co-operate fully on a voluntary basis, an arrest will be deemed lawful.
A former chief constable of South Yorkshire, Richard Wells, who took charge in the aftermath of the Hillsborough disaster in 1989, recently said that at the time police forces across Britain had ‘a culture of authoritarianism, defensiveness [and] excessive secrecy’.
Mr Wells statement followed publication of a report by the Hillsborough Independent Panel that found that senior police officers waged a concerted campaign, in the form of private briefings, redacted statements and stories fed to a Sheffield news agency, to “impugn the reputations of the dead” and save that of the South Yorkshire Police.
The current Chief Constable, David Crompton maintained in a BBC interview that “South Yorkshire Police is a very different place in 2012 from what it was 23 years ago”.
Is it? My client, Mr A would strongly disagree.
Attack by police dog
In February 2012, Mr. A, a 19 year-old football fan, was at Hillsborough to watch the derby between United and Sheffield Wednesday.
As he was walking home from the ground he passed a WPC with a police dog. Suddenly and without warning the police dog lunged at Mr. A, biting his right forearm, drawing blood and destroying his jacket, a recent Christmas present from his mum and dad.
Although he was shocked and in great pain, Mr. A asked the officer for her details as he intended to pursue a complaint about the assault by the police dog. She refused and a male police officer ushered him away.
Mr A walked away and met up with some friends who advised him to return to the WPC to insist that she give him her details. Once again, she refused and once again, he was ushered away by the male police officer who belittled and laughed at him as he did so. At no time was it suggested that Mr A had committed any criminal offence and at no time was Mr A obliged to give his details.
As he walked away, Mr. A saw another man receiving treatment in an ambulance. He had also been bitten by a police dog . Mr. A approached the paramedics, was treated and taken to hospital for dog bite injuries and shock.
Mr. A, a student has never been in trouble with the police before, complained to the police the next day and agreed to have the matter investigated by local resolution, an informal process I do not recommend.Before then, the police had no idea who he was.
Malicious Prosecution by the police
A couple of weeks later he was visited at home by two uniformed South Yorkshire Police officers. Rather than discuss his complaint, they served Mr A with a Fixed Penalty Notice for breach of s.5 of the Public Order Act on the day of the derby match, ie that he had caused ‘harassment, alarm or distress’.
Mr. A contacted me for advice. He knew that the s.5 charge was made-up nonsense, but that if he accepted the fixed penalty and paid the £60 fine it would be dealt with and he would not have a criminal record, something of crucial importance to a young man with the rest of his life ahead of him.
However, he also knew that South Yorkshire Police had issued the Fixed Penalty notice merely because he had the temerity to complain. They would not have known who he was, and so would not have served him with the Fixed Penalty Notice if he hadn’t approached them the following day to complain.
Ultimately, Mr. A decided to fight the allegation. Mr A lodged the appeal and waited. It would appear that South Yorkshire Police then bungled their attempt to prosecute. They are now out of time to do so.
I am now representing him in a compensation claim against South Yorkshire Police.
Although South Yorkshire Police’s Chief Constable David Crompton assured us that things had changed, my client was subjected to an entirely unjustified assault and prosecution. I am not re-assured by the Chief Constable’s words.
It appears to me that the s.5 Public Order Act prosecution was brought to put Mr A in his place. Once again, we would hear the old line of the hooligan football fan being restrained by well-meaning police officers. In short; the same lie South Yorkshire Police peddled in the aftermath of the 1989 Hillsborough tragedy would be repeated following an attack by a police dog at the same football stadium 23 years later.
To put a 19-year-old in this position, where he had to decide between the principle of defending himself from trumped-up charges, or letting the matter lie, is nothing short of disgraceful and points to an institutional failing within South Yorkshire Police which has not been addressed. Unlike Chief Constable Crompton, I have no doubt that this leopard has not changed its spots.
Iain Gould is a solicitor who specialises in actions against the police compensation claims.
I was disappointed to read yet another story of police officers using Tasers to restrain innocent people.
Tasers are stun guns used by the police to shoot 50,000 volts of electricity into a person’s body. This has the effect of temporarily paralysing them, and can cause nausea, loss of bowel and bladder control, vomiting and on rare occasions, a heart attack. The police can use these weapons to arrest someone provided they can show that such force is reasonable and proportionate.
Blind man Tasered
The Daily Mail reports how Colin Farmer, a 61-year-old blind man carrying his white stick, was walking slowly in Chorley, Lancashire (he has had two strokes and is partially paralysed) when he was Tasered in the back by a policeman looking for a man carrying a samurai sword. Even after shouting ‘I’m blind’ Mr. Farmer’s back was knelt upon by the policeman while he put handcuffs on with such force that they broke Mr. Farmer’s bracelet.
You can watch Mr. Farmer being interviewed here. I think you will agree he does not come across as a knife wielding threat to society.
Mr. Farmer describes the police officer who Tasered him as ‘a thug’ and is taking legal action against the police force for the assault.
Amazingly, no disciplinary action was taken at the time against the officer by Lancashire Constabulary. Perhaps because of the publicity the matter has now been referred to the Independent Police Complaints Commission.
I have previously blogged on this issue, as I am now routinely receiving enquiries from people who have been subject to this form of police assault.
In one case I am currently pursuing, my client Mr. M, a 51-year-old heavy-set, bald black man, was at home when two police officers knocked on the door. They asked his name, which he confirmed, but said that he was not the person they were looking for. My client shares the same name as his son, but does not resemble him physically. His son is 20 years younger, of slim build, with an ‘afro’ haircut and of mixed race.
The police officers ignored Mr. M and disregarded the fact that he bears no resemblance to his son, whose photograph they had seen before going to Mr. M’s house, and said they were there to arrest him for criminal damage.
Mr. M knew he had done nothing wrong and stepped back into his house. Echoing Mr. Farmer’s case, my client had his back to the police when he was Tasered, falling heavily to the floor where he was then handcuffed.
Even though Mr. M was in great pain, he begged the officers to get his personal identification. Once checked, they acknowledged their mistake. Unlike Mr. Farmer however, they then added insult to injury by arresting Mr. M with assaulting police officers and obstructing a constable in the course of his duties.
Although there were no grounds for this, he was taken to a local police station, detained, interviewed, and eventually released after 17 hours with no further action to be taken.
Not unsurprisingly, Mr. M is now pursuing a claim for police assault, unlawful arrest, trespass, false imprisonment and misfeasance in public office. I am confident he will be successful, resulting in thousands of pounds compensation being paid by the taxpayer as a result of the over-zealous use of a Taser by police officers, who then compounded the mistake by fabricating a story of assault to avoid blame.
Lack of police training
Both Colin Farmer’s and Mr. M’s case have striking similarities, not least being the lack of common sense being shown by the police officers. How can a white stick be confused for a samurai sword? How can a middle-aged, heavy-set man be confused for his son? Although the police are trained in the use of Tasers perhaps it is time a new chapter is added to the training manual: ‘How to use your brain’.
The Tory Chief Whip, Andrew Mitchell is currently under significant pressure after a call for a formal inquiry following his outburst at two police officers on the evening of Wednesday 19 September.
Upon leaving Downing Street, it is alleged he asked officers to open the gates that lead on to Whitehall. When the officers refused and asked him to leave via a side gate, he allegedly shouted ‘You fxxxing plebs, I’ll have your jobs for this’, and ‘You don’t know who I am. I am the Chief Whip. You don’t run this fxxxing country’.
The officers recorded this outburst in their pocket notebooks and subsequently in a report and yet to date no action has been taken against the Minister.
This is surprising as swearing aggressively at a police officer constitutes a potential offence under the Public Order Act.
Mr Mitchell can count himself lucky. My client, Mr X of Leicester was less fortunate.
Shopping in Morrisons Supermarket one day, he encountered a police officer in full uniform also doing his shopping. Mr X approached him and said, ‘There is a 9.2 million pound deficit for the next 3 years and you are here shopping for bloody shoelaces and shoe polish. Do you think this is acceptable?’
The officer was taken aback. After a pause, the officer advised Mr X that he needed new laces in order to enable him to chase criminals. The officer then warned Mr X that his conduct amounted to a breach of Section 5 of the Public Order Act, i.e. that Mr X had used threatening, abusive or insulting words or behaviour.
Mr X advised the officer that he would lodge a complaint and promptly visited the nearby Police Station.
Some 2 months later, Mr X was charged with breaching Section 5 of the Public Order Act and the case proceeded to trial.
The officer provided a statement and accused Mr X of saying, ‘There is a 3 something million deficit for the tax payers and you’re in here, why aren’t you out in the street dealing with crime’ and ‘I’m going to report you for shopping on duty. You’re a bloody waste of money’. During this encounter, Mr X was said to be aggressive and intimidating.
Somewhat remarkably, not only was Mr X prosecuted for his ‘threatening and abusive behaviour’ but he was also convicted by the Magistrates! His defence was hindered by the Police or Crown Prosecution Service’s failure to disclose CCTV footage from the supermarket.
Mr X appealed and the case proceeded to the Crown Court. In advance of the Appeal Hearing, the relevant CCTV footage was finally disclosed. Although there is no audio, no one could conclude from the actions of Mr X that he was aggressive or intimidating in his encounter with the officer or, even more significantly, that the officer showed any signs of alarm or distress. At Court, the prosecution case collapsed and no evidence was offered.
The police officer in question was caught by my client doing something he shouldn’t have. He was embarrassed. Because Mr X had the temerity to lodge a formal complaint, the officer then instigated a formal prosecution. But for the CCTV footage Mr X could still have a conviction for breaching Section 5 of the Public Order Act. Instead, Mr X ought to be compensated by Leicestershire Constabulary and the individual officer and force’s reputation questioned. If, like in the case of (the rich and powerful) Andrew Mitchell, the officer took the view that there had been no offence committed, (the considerably less well off) Mr X and the police would have avoided all of this. In the meantime, I’m sure that the multi-million pound Leicestershire Police deficit is now even greater because of this ludicrous prosecution. Surely a man who claims to ‘run this fxxxing country’ would have something to say about that..
I was saddened to hear about another Taser (‘stun gun’) attack by the police over the weekend.
In the early hours of Sunday morning, James McCarthy, a 22-year-old from the West Derby suburb Liverpool, was allegedly Tasered four times by a Merseyside Police officer. He was rushed to hospital by ambulance and is now in a ‘stable’ condition.
You can read the preliminary reports on the incident here.
I asked in my blog last year if the police are using tasers correctly. The Taser is a powerful and potentially deadly weapon. Training ought to emphasize the risks to the individuals concerned, especially if multiple discharges are made.
Given the physical and emotional trauma of just one discharge, if the family’s claim that Mr. McCarthy was Tasered four times is proven to be correct, it is difficult to imagine how that was a necessary, reasonable and proportionate use of force. If the police officers involved are shown to have used excessive force, serious disciplinary action and a compensation claim against the police ought to follow.
As a solicitor who specialises in these cases, I routinely receive instructions from people who have been victims of police brutality. Often my clients tell me that they pursue compensation claims so that the officers involved are disciplined and then trained properly about the use of force. This, rather than the money they receive, often helps them come to terms with the emotional trauma caused by such a serious assault, which can linger long after the physical symptoms have resolved. It is not uncommon for people to become withdrawn, depressed and anxious after a Taser attack. The effects of being assaulted by the police, who represent authority and ought to be trusted, cannot be dismissed lightly.
Merseyside Police have rightly referred Sunday’s incident to the Independent Police Complaints Commission. Even if the IPCC find no evidence of wrongdoing, the fact that James McCarthy is still in hospital should serve to remind all police forces about the need for proper training, and for the officers issued with Tasers to think twice about their devastating effects before using them.
Listening to BBC Radio 4’s Today programme on 5 March, I was struck by how poorly thought out the Legal Aid Sentencing and Punishment of Offenders Bill (‘LASPO’) appears to be.
It will have devastating consequences for access to justice.
The Justice Secretary advocates reforms detailed in the Bill. This is currently being considered in the House of Lords and is likely to be made into an Act in April 2012, before implementation a year later.
If pushed through, the reforms will make it impossible for many claims against the police to be pursued. This is because the Bill removes the valuable ‘safety net’ of legal aid for previously eligible claimants in cases where allegations of deliberate or dishonest conduct do not apply.
To make matters worse, the current system of conditional fee (‘no win no fee’) agreements backed with after the event insurance (which protects against the risks of paying own disbursements and opponent’s fees in the event of failure) will be reformed to deny the claimant the right to claim a ‘success fee’ from their opponent if they win together with the cost of their insurance policy. These two things have allowed actions against the police solicitors like me to help my clients obtain justice and recover 100% of their damages after police wrongdoing.
Under the changes, these costs will come out of the claimant’s damages even if they are successful. As a result many cases will not be pursued as the financial benefit to the claimant if they win will be outweighed by the potential costs they will have to pay personally if they lose.
Ken Clarke insists that ‘We’re taking legal aid away from lawyers.’ By removing legal aid and reforming litigation funding from civil litigation which includes police compensation claims, police misconduct will go unpunished, lessons will not be learned, and access to justice will be denied. For Mr. Clarke, a barrister and QC, that is a shameful legacy.
At 12pm today (1 February 2012) Commander Tony Eastaugh of the Metropolitan Police participated in a live webchat about the Met’s use of ‘stop and search’ powers.
He stated that, while the police’s powers to stop and search people were not being taken away or reduced, the Met intend to now use them in a more focussed way. In particular they plan to target ‘violent people’, although he did not define such people or provide examples.
In addition, he said that the Met would be seeking to reduce the number of ‘section 60’ searches, which is a stop and search power given to the police in response to violence. This power is widely used by the police and has advantages to the officers who apply it when conducting a stop and search as, unlike with a standard stop and search, they are not required to give reasons. The authority to use s.60 comes from a superintendent or an inspector, which means that the officer conducting the search can simply defer to their superiors. Interestingly though, Commander Eastaugh said that he would expect officers using s.60 to explain their reasons ‘out of courtesy’.
While I applaud the Met’s efforts to target stop and search more appropriately, the police have a long way to go to convince people from black or minority communities in particular that they are not being targeted. It remains a sad fact that you are four times more likely to be stopped and searched in London if you are black or from a minority community. To resolve that issue the police are going to have to show tangible results on wider issues such as race relations rather than simply targeting their use of one power; stop and search. If they fail to do so, more claims for actions against the police will inevitably follow.
Custody CCTV footage can often be helpful in an actions against the police claim.
Every police station in the country has a CCTV system in place recording everything that happens in the custody suite. Not only does the footage produced by the system provide vital evidence about a Claimant’s general demeanor immediately post-arrest, but it can also confirm or disprove the arresting officer’s initial arrest account. Often it contradicts the stated position of the police in correspondence, for example if they deny allegations of assault, leading to compensation being paid for the police’s wrongdoing.
Many police forces operate a system whereby their CCTV footage is deliberately wiped after 90 days. In these days of digital technology, I often wonder why.
Also, increasingly I am coming across situations where CCTV footage is being wiped, despite my request within time that relevant CCTV footage be preserved. Excuses I have received recently include:
‘The Custody suite footage whilst requested by yourselves prior to the expiry of the 90 day period was addressed to the incorrect staff…’;
‘Your letter was received but unfortunately not acted upon…’ and;
‘there is no CCTV footage available as data was not captured due to technical difficulties…’
I have no doubt that these excuses are tactical, as they prevent access to evidence which may assist the Claimant and harm the police’s defence.
We all have an interest in how public funds are spent. If CCTV evidence will assist in early settlement of a claim that is in everyone’s best interests, especially the police’s, who will save money and time. Equally, if it contradicts the Claimant’s version of events, that should be known by his solicitor as soon as possible, who may take a different view as to the prospects of success. In short: custody CCTV footage should be retained and produced in every actions against the police case. Failure to do so can only be viewed with suspicion.
I recently read with interest the Telegraph’s report that a 19-year-old man’s s.5 Public Order Act conviction was overturned by Mr. Justice Bean recently on the grounds that his use of swear words could not have caused the necessary ‘harassment, alarm or distress’ required to convict.
In response, Peter Smyth (chairman of the Metropolitan Police Federation) complained that ‘if judges are going to say you can swear at police then everyone is going to start doing it’.
In my opinion, Mr. Smyth has missed the point completely. I am presently dealing with a similar actions against the police case for a client who was stopped and searched by the police while going to the bank. My client suffers from panic attacks, for which he has received therapy. When approached by them, the police officers used demeaning, offensive and rude language, searched him and made him agitated. He was arrested for a breach of s.5 Public Order Act and forced to sit on the floor of the police transit van while they drove him to the police station. During the journey and at the station he suffered a full-blown panic attack. My client was detained and searched again, and only released once a fixed penalty notice had been issued.
The police say he used abusive language which justified the arrest and subsequent charge under s.5. I dispute this. My client’s alleged use of swear words was in the course of his everyday language (e.g. he is alleged to have said ‘why the f— do you pick on me I just want to go to the f—ing bank.’). He was not squaring up to or challenging the officers, quite the opposite as he was using distraction techniques to try to avoid having a panic attack.
It is the context of the swear words which is important, and the way in which they are used, that may give rise to the ‘harassment, alarm or distress’ necessary to secure a s.5 Public Order Act conviction. S.5 was never intended to allow easy prosecutions for those who use swear words in every day conversation, rather it was intended to deal with those who cause fear and upset; the type of people we would all try to avoid. The sooner the police recognise the difference the better.
I was troubled to see the recent footage of Metropolitan police officers attacking a car in June 2008 to effect an arrest.
The footage (which can be viewed on the Guardian website) shows a mini being set upon by six police officers, one of whom smashed the windscreen with a ‘non-issue’ baseball bat, before arresting the driver. The police officers were told by the Independent Police Complaints Commission that they brought the police into disrepute and acted unreasonably. Amazingly, although they have been suspended, the officers in this case have not been dismissed from the force, despite their ‘overly aggressive approach’ according to the misconduct tribunal.
This seems to me to vindicate the police’s aggressive approach, and has worrying echoes with a case I am presently conducting for four clients.
My clients, two couples in their late 20’s of exemplary character, were driving home at about 9.15pm in April 2010 after visiting friends. They were forced to stop by a police car which swerved in front of them with its lights flashing and siren blaring. More police cars followed and blocked them from behind.
Armed police officers and dog handlers surrounded the car. One smashed in the driver’s side window with the butt of his gun. Conflicting instructions were shouted at the terrified occupants. The driver was dragged from the car, forced to the glass-covered ground, and threatened with a taser. His girlfriend thought he was about to be shot. When she tried to leave the car a machine gun was pointed at her head. Her boyfriend, the driver, was handcuffed and led away out of sight.
The remaining passengers were separated. Although they were told that the police suspected firearms were in the car, it was not searched.
Instead, about 20 minutes later they were re-united and the senior officer explained that their vehicle had been incorrectly identified. They were then allowed to go home.
I was approached by the four friends to pursue an actions against the police claim following an internet search. Following a formal complaint which was upheld, the police denied liability saying they had reasonable grounds to act.
My clients were understandably terrified during and after the ordeal and have sustained psychiatric and physical injuries. I consider that they have good claims for false imprisonment, assault etc. and have issued proceedings. Their case continues.
It is important to my clients, and the wider community, that the police are held to account for their actions that night. Before the police’s attack on them, my clients had confidence in the police and their role in the community. This has been destroyed. The police need to review their procedures immediately to avoid this happening again.
I have many misgivings regarding the police complaint system but one criticism that I could level on near enough every complaint I have handled is the deliberate restriction of time to appeal against a police force decision.
Let me expand.
On the basis that a police force has carried out a full investigation, they will forward their final report to the Complainant.
If the appeal is not lodged within that time period, the IPCC do not have to consider the appeal.
The IPCC say that they “may be able to extend this time period if you have very special circumstances and you can fully explain your reasons for asking for an extension”.
Note that the clock ticks from the date of the letter from the police.
One would assume that a letter would arrive within one or two days of the date of that letter.
With every police force I have dealt with however, it is invariably longer.
I am currently reviewing a case where the letter from Merseyside Police was dated 20th July and yet received at my office on 26th July.
This is, in my opinion, a deliberate tactic to reduce a Complainants “appeal time” and therefore reducing the chances of an appeal being lodged.
As appeals often affect the outcome of civil actions against the police, innocent victims of police misconduct are being denied their legal right to an investigation into their complaint, and may miss out on an apology and/or compensation where wrongdoing has been identified. This unfair practice must stop.
A taser is the latest weapon in a police officer’s armoury. It is a stun-gun which when applied causes 50,000 volts of electricity to go through a victim’s body, side effects of which include temporary paralysis, nausea, amnesia, loss of bowel/bladder control, vomiting and in extreme cases, the heart can stop, occasionally resulting in death.
The police can use force (and therefore the taser) when affecting an arrest provided it is reasonable and proportionate.
It is in the public interest to establish whether the police have been given proper training and are applying their powers correctly. Can an 82 year old man be said to pose such a threat requiring the use of such excessive force?
I am currently pursuing a similar actions against the police claim for a 50 year old man. The police visited him late at night looking for his son. My client, a heavy set, bald, black man bears no resemblance to his 32 year old mixed race, curly haired son. The police, who had seen a picture and read a description of my client’s son, forced their way into my client’s home and indiscriminately tasered him in the back when he was retreating into his kitchen. At the time, he was entirely defenceless and posed no threat.
As well as the physical evidence in front of them, a simple ID check which they performed minutes later proved that my client was not the person they were looking for. Nevertheless, he was arrested for obstruction and assaulting a constable- this is being cited to justify their over zealous behaviour. I am now working with my client to pursue his claim against the police.
I consider that both cases raise serious questions regarding the deployment of taser guns in arrest circumstances.
The sad case of Tommy Meyers, an innocent fan who was attacked by a police dog, mirrors that of Mr. B, a client of mine.
He had been on an awayday to watch Everton play Stoke City with friends. He was transported with hundreds of other fans from the ground to Stoke-on-Trent train station. Upon arrival, he went to enter the station to travel home. As he did so, he was confronted by a British Transport Police officer who told him to disperse. Mr B repeated his appeal in a non confrontational manner to enter the station whereupon the officer unleashed his dog upon him so causing Mr B severe injuries.
Mr. B approached me as I am a specialist actions against the police solicitor. Following investigations I was convinced that he was, indeed, the victim of a serious miscarriage of justice and lodged a civil claim on his behalf.
Over 2 months later, Mr B was informed that he was to be prosecuted for using threatening, abusive or insulting words contrary to section 4 of the Public Order Act.
Following representations, those criminal proceedings were withdrawn.
The civil claim was vigorously defended. Relevant CCTV footage of the incident was mysteriously lost. Other non relevant CCTV footage and witness evidence was disclosed seeking to suggest that Mr B was a known football hooligan.
After a 23 day trial, the jury found that the dog had been negligently unleashed, that Mr B had been unlawfully arrested and then the subject of a malicious prosecution. He was awarded in excess of £93,000 in damages plus all his legal costs.
I am saddened that, despite this high profile case, it would appear that lessons have not been learned.
A recent Supreme Court ruling has confirmed that the police’s policy of keeping innocent people’s DNA after they have been investigated and cleared of an offence is unlawful.
The BBC reported that the UK Supreme Court found by a 5-2 majority that the police’s policy was incompatible with a 2008 European Court of Human Rights decision.
The fact that it has taken 3 years to follow on from our European neighbours is shameful. For several years now I have been advising innocent people that the only way to have their fingerprints etc destroyed is via the Association of Chief Police Officers exceptional guidelines route. Unfortunately, this was fraught with uncertainty as it was entirely discretionary with no right of appeal.
As the Supreme Court have now found those guidelines unlawful, which in my opinion is the right decision, innocent people who have been told in the past that their DNA will be kept now have a right to challenge the police’s stance.
I expect that actions against the police solicitors like me will be very busy in the coming months assisting people to have their DNA information removed from the database, and their right to privacy restored.
As this is my first post, I thought you should know a little about me. I’m a solicitor (lawyer) based in Liverpool. My main practice area is actions against the police work, although I also deal with personal injury cases as they often overlap.
I represent people from all walks of life, some of whom have had regular encounters with the Police, others only the once!
All my client’s have a story to tell and some of these stories will shock you!