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Stop and Search: How the Police Misuse their Powers (Part 2)

In Part 1 of this article, I wrote about Police powers to stop and search that required reasonable suspicion.  

There are also powers to stop and search that do not require reasonable suspicion, in particular under Section 60 of the CJPOA 1994. 

Searches under the Criminal Justice and Public Order Act 1994

The Criminal Justice and Public Order Act 1994 provides:

 “ (1) Where a police officer of or above the rank of superintendent reasonably believes that –

(a)    Incidents involving serious violence may take place in any locality in his area, and

(b)   It is expedient to do so to prevent their occurrence he may give an authorisation that the powers to stop and search persons and vehicles conferred by this section shall be exercisable at any place within that locality for a period not exceeding twenty four hours.”

This authorisation may be given for a period of 24 hours (renewable for a further period of 24 hours).  If such an authorisation is given it 

“(4) ….. confers on any constable in uniform power – 

(a)    To stop any pedestrian and search him or anything carried by him for offensive weapons or dangerous instruments;

(b)   To stop any vehicle in order to search the vehicle, and its driver and any passenger for offensive weapons or dangerous instruments.

 (5)  A constable may, in the exercise of those powers … stop any person or vehicle and make any search he thinks fit whether or not he has any grounds for suspecting that the person or vehicle is carrying weapons or articles of that kind.”

 In a recent legal publication, Legal Actions; ‘Police Station Update’ April 2016, the author, a well respected former solicitor, Professor Ed Cape asserted that “assuming that authorisation has been validly granted, given the fact that an officer does not require suspicion in order to carry out a stop and search, in a S60 designated area, it will be almost impossible for a person aggrieved to sustain a successful civil action or complaint against the police.  Establishing that a stop and search was motivated by an unlawful reason will be almost impossible.” 

‘Almost impossible’ is not the same as ‘impossible’ however as my client, Mr D. O. proved in a successful action against Merseyside Police.  

One sunny morning in August, Mr O left home and drove to work.  At the time Mr O worked for the Highways Department.  Mr O parked up in his usual spot and as he got out of his car, a marked police vehicle pulled up close by and police constables A & B got out to speak to him.  PCs A & B had also stopped and questioned Mr O in the city centre only 5 days earlier.  On that occasion, Mr O had been asked whether he was the owner of the car and where he was going. 

Once again, Mr O was asked whether it was his vehicle and where he was going.  Mr O understandably formed the impression that he was being harassed and informed the officers (as they already knew) that they were asking him the same questions which they had posed and he had answered 5 days earlier.  He said that he saw no point in answering their questions again.  Mr O correctly indicated that he was late for work and wished to proceed.  Ignoring this, Mr O was asked where he worked and he advised the officers that he worked in the Highways Department. The officers told him that they wished to search his vehicle, which they then did.  It was at this point that the officers advised Mr O that he had been stopped because he had previously been arrested for rape and because he was “a danger to women.”  Mr O was asked whether his employers were aware of this. Mr O accepted that he had been arrested but asserts that he was innocent and that no charges had ever been brought against him. 

The officers then said to Mr O that they had “information on him” and that they had been following him.  It was at this point and during an inspection of the vehicle that one of the officers found Mr O’s taxi plates (Mr O was a licensed taxi driver at the time).  The officers then asked Mr O as to whether the local taxi authority had been advised of his arrest for rape. 

Yet again, Mr O was asked for his full details.  Mr O explained that he had given his details to these very same officers only 5 days earlier.  As a black man of Nigerian descent with an unusual surname, Mr O was of the opinion that there could be no doubt in the minds of the officers that they had indeed asked him these very same questions only 5 nights earlier.  Nevertheless Mr O was told that if he refused to provide the information he would be arrested.  Mr O provided his personal information once again and this information was radioed through to the Police Control Room.  After several minutes, Mr O was advised that he was free to go but that he was obliged to advise his employers of the rape allegation.  At this, Mr O was given a stop form and released.  The stop form issued indicated that the reason for the stop was ‘taxi plate _____ badge no _____, searched under Section 60 of the Criminal Justice Public Order Act (CJPOA) 1994. 

With my assistance, Mr O filed a complaint and in response, the officers provided a statement.  

The officers accepted that they had initially seen Mr O driving around the city centre  and were suspicious that he was operating as an unlicensed taxi driver. 

Five days later, the officers were on duty and ‘received information’ that Mr O’s car was in the area.  PC A confirmed that he wished to make further enquiries as regards his suspicions. 

The officers spotted Mr O’s vehicle and Mr O alighting from it.  They stopped and spoke to Mr O.  Both officers were aware that authorisation had been granted under Section 60 CJPOA 1994 to cover stop/searches for that particular area and at that time. 

In the circumstances the officers searched Mr O’s vehicle and found taxi plates and door stickers as well as a valid taxi licence and receipt book.  The officers recall as to the nature of their conversation with Mr O was very different to Mr O’s and they maintained that they asked different questions to those asked on their previous encounter. 

On investigation, I established that at this time and locality, a Superintendant had indeed granted a Section 60 authorisation.  On this basis, the officers did not need reasonable suspicion to stop and search Mr O or his vehicle. 

However, the officers had clearly stated that their decision to search was due to a suspicion that Mr O was an unlicensed taxi driver.  They did not claim to have stopped Mr O to search for “offensive weapons or dangerous instruments” which is the power granted by Section 60.  There was therefore no lawful justification for the stop and search. 

Mr O, although not arrested on suspicion of any offence, was nevertheless subjected to a complete deprivation of liberty without lawful authority in that: 

1.      The officers conveyed to Mr O by their words and actions, and Mr O believed, that he was obliged to submit to their authority and was not free to come and go as he pleased for the duration of the stop and search.

 2.      The officers expressly indicated to Mr O that he was free to go only at the end of the stop and search.

 3.      The officers asserted at the material time that Mr O had been stopped because he had previously been arrested for rape and because he was “a danger to women”.  Such a purported reason for the stop and search, even if genuine, disclosed no justification in law for the same.

 4.      Only after the stop and search did the officers purport to rely upon the Act but in fact it provided no lawful justification for the stop and search.  Sections 4 (b) and 5 of the Act provide a power only to stop and search ‘for offensive weapons or dangerous instruments’.  The officers stated reason for the search was due to suspicion that Mr O was an unlicensed taxi driver, which was not a power granted to them by the Act. 

5.      The stop and search did not have any other lawful justification.

 In the circumstances the search of Mr O’s vehicle amounted to a trespass to goods/unlawful interference with goods and Mr O was unlawfully detained (for about 45 minutes). 

I am pleased to report that although Merseyside Police initially dismissed his complaint, they did, after I brought Court proceedings on Mr O’s behalf admit liability for both trespass to goods and false imprisonment and compensated Mr O for the inconvenience, injury to feeling and loss of liberty caused. 

What this case shows is how police officers can act unlawfully by not understanding the full scope and limitations of their powers.  Incorrect vetting and supervision can allow some officers to abuse their power deliberately, lack of proper training/education can cause other officers to exceed their power unknowingly.  Hopefully this case will have proved a salutating reminder to Merseyside Police to ensure that their officers are taught what rights they have to stop/search people, and when those rights come to an end, to ensure that similar wrongs are not committed. 

I also reflect upon the fact that, just as in the case I discussed in the first part of this series, the person subjected to any unlawful stop/search by the police, was a black man.  It is sadly hard to avoid the conclusion that skin colour appears to remain in the eyes of many police officers, an indication of criminal intent.


Stop and Search: How the Police Misuse their Powers (Part 1)

Banksy's Portrait of Basquiat being welcomed by the Metropolitan Police - an (unofficial) collaboration with the new Basquiat show.
Banksy’s Portrait of Basquiat being welcomed by the Metropolitan Police – an (unofficial) collaboration with the new Basquiat show.

In this series of blog posts solicitor Iain Gould considers how the police are misusing their stop and search powers. As a specialist in civil actions against the police Iain represents people who have suffered as a result of the police’s misconduct. Giving examples from his clients’ cases, Mr Gould highlights issues with stop and search for lawmakers and the public alike.

At the recent Conservative Party Conference, the Prime Minister asserted (amid coughs and splutters, falling set design and a prankster brandishing a P45) that since 2014, government action meant that “the number of black people being stopped and searched has fallen by over two thirds”.

Whilst the number of black people being stopped and searched by the police has indeed fallen by two thirds, this is in fact since 2010-11 and not 2014.

Furthermore, the sad fact is that black people are still four times more likely than white people to be stopped.

The Metropolitan Police Commissioner recently went on record to defend the continuing use of stop and search and the Home Secretary later added her support saying that “we have given the police the powers they need and officers who use stop and search appropriately, within reasonable grounds and in a targeted and intelligence led way, will always have my full support.”

So what are these powers?

As is often the case, the powers available to the police to stop and search persons and vehicles are myriad.

Most – but significantly not all – are circumscribed by the requirement that there be reasonable suspicion that something prohibited will be found.  This will usually be under Section 1 of the Police and Criminal Evidence Act 1984 (PACE) – stolen or prohibited articles or certain articles with a blade or sharp point – or Section 23 of the Misuse of Drugs Act – controlled drugs.

Section 2 of PACE provides safeguards which govern the exercise of all but one pre-arrest search power (the only one exempt is Section 27 of the Aviation Security Act) namely that for a search to be lawful the officer must take reasonable steps to provide the following information:

a)His/her name and police station;

b)The object of the proposed search;

c)His/her grounds for the search; and

d)The availability of the search record at any time within the preceding 12 months.

The officer conducting the search is also required to create a search record recording the object of the search, the grounds for making it, date, time and place of conduct, whether anything was found and if so what, and any injury or damage to property which resulted.

The requirements of S.2 are strictly applied; if the officer does not comply, the stop and search will be unlawful.

An unlawful stop and search will almost inevitably give rise to a claim for false imprisonment (ie for the period of time that the individual is detained) and assault and/or battery (in respect of the apprehension and/or application of physical force) which can then lead to an award of compensation.

Here’s an example of a case that I concluded recently against the Metropolitan Police.

My client, KG and his younger brother SG (both black males) were walking along a road in East London.  SG was going to a fancy dress party.  He’d borrowed some crutches from KG and was going as a man who’d broken his leg.  As they got to a convenience store, KG went in to get a drink.  As he was doing so, 2 PCSOs who had been following the pair, approached SG and began to quiz him as to why he was carrying crutches (given that according to the officers he had no discernible reason as to why he should have them).  SG explained that he was going to a party.  KG came out of the store and challenged the officers as to their actions, explaining that the crutches were his and that his brother was going to a party. KG took the crutches from his brother.  He accepts that he was annoyed and that he said, “What?  Is it a crime for a black man to be carrying a pair of crutches?”  The officers said it was suspicious but failed to explain why.

As a side note, it does beg the question why a person carrying crutches should raise more suspicion than a person carrying other items that they have no apparent use for, but I digress.

KG was outraged.  He knew neither he nor his brother were carrying drugs and told the officers to “search the fucking crutches then”.

The PCSOs called for backup and told KG that he was detained pending their arrival.  KG continued to swear repeatedly saying “Search the fucking crutches”.  When the officers refused, KG sought to walk off but in response, one of the officers grabbed his arm to which KG replied “Don’t fucking touch me”, and again, “Search the fucking crutches”.

After about 10 minutes or so, 2 police constables arrived, PC W and PS H.  The officers conferred with the PCSOs.  PC W was asked to search KG because it was believed that he had drugs secreted on him or inside the crutch notwithstanding, as PC W later admitted, that crutches being used to conceal drugs “was a new one for him”.  PC W explained to KG that the PCSOs believed he may have drugs on him, provided his details, what station he came from and how KG could have a copy of the search record at the end.

By this stage, a group of people had gathered to watch events.  Both KG and his crutches were searched under S.23 Misuse of Drugs Act and nothing incriminating was found.  One of the PCSO’s began to write out a form which KG believed to be a stop and search form which was then handed to him.  On checking however, Mr G discovered that he’d been handed a fixed Penalty Notice for breaching Section 5 of the Public Order Act.  The officers then left without issuing a stop and search form because (they later asserted) to do so was impractical because of concerns that their continued presence was creating ‘a situation’.

Of course it is blindingly obvious that if the officers were able to issue a Fixed Penalty Notice for minor disorder, surely they were also able to issue a stop form, but they did not.

On review, the following issues were relevant to establishing liability for both false imprisonment and assault/battery.

  1. Under paragraph 2 of Schedule 4 of the Police Reform Act 2002, a PCSO has power to detain a person when they have reason to believe that person has committed a relevant offence and who fails to comply with the requirement to give their name and address.  ‘Reason to believe’ is of course a higher threshold than ‘Reason to suspect’.  In other words, it was not sufficient for the PCSOs to suspect that crutches could contain drugs; they needed information to indicate that KG’s crutches did contain drugs.  Accordingly, there was no legal power  for them to detain and physically restrain KG from leaving.
  1. For the search of KG to be lawful, PC W had to (as well as complying with Section 2 PACE) establish that he himself had reasonable suspicion that KG was in possession of a controlled drug.  Just because the PCSO told him of their suspicions was not good enough.  Accordingly, the search was unlawful.

In all, KG was detained for approximately 15/20 minutes.  He suffered no physical injury as such, but certainly did suffer insult to his feelings, being left with a hurtful sense of injustice on the basis of racial bias.

After a lengthy complaint process, I am pleased to confirm that, despite as usual making no formal apology or admission of liability, the Metropolitan Police were clearly persuaded by my argument that KG had been unlawfully detained and assaulted and agreed to pay him £2,200 damages plus legal costs.

As is so often the case, KG remains dissatisfied.  He believes that he and his brother were stopped because they are black.  Such an assumption is understandable because there appears no other reason for the stop.

Whether the stop was conducted because of racial discrimination or not, the impression that KG and his brother have is that the PCSOs were motivated by discrimination, whether conscious or unconscious and that they were targeted unfairly.

I leave you with a quote from the Editorial of the Times in April 2017; “Stop and search is an incendiary policing tool if not used with care….in practical terms the damage such apparent unfairness inflicts on community relations can eclipse any improvement in public safety”.

 

Taking British Transport Police to Task

Cases which go to Trial are by definition the most difficult to win; those in which your opponent thinks he has the best chance of success, refuses an out of Court settlement, and throws all of his resources – massive resources in the case of a Police Force of course – into defeating the Claimant; a real David and Goliath conflict.  For those cases to be pursued to a successful conclusion, it is essential for my clients and myself as their lawyer to have the courage and belief to see the fight through until the end, no matter what is thrown at us by the Police in every attempt to frustrate the course of justice.

My most recent victory was especially satisfying as my client had suffered so much as a result of Police abuse/ misuse of their powers, and had shown tremendous courage not to run away and hide but pursue the case even as far as the often traumatic experience of having to re- live events in front of a Jury whilst being subject to hostile cross- examination from a Police barrister.

In the case in question, my client, Hayley Cunningham (details used with permission) and her husband, both hard- working teachers, had in May 2012 an opportunity for a rare night out together to celebrate her birthday, with grandparents looking after the kids. After enjoying a meal, during which time Hayley had only four glasses of alcohol, they commenced their journey home by underground train. Unfortunately, on reaching the platform they were advised by a station employee that they had missed the last train, and would have to catch a cab instead; my client and her husband were unfamiliar with the train station.  Hayley’s husband opened the nearest exit door.

The staircase in which my client and her husband found themselves was steep and poorly lit; they had to ascend over 160 steps to reach the main station concourse at ground level. Unexpectedly having to climb 160 steps would be an exhausting task for even the fittest amongst us, let alone Hayley who, naturally tired at the end of an evening out (which had followed a busy ‘end of term’ day in school), also suffered from a form of Lupus and from Raynaud’s disease, conditions which cause her to suffer episodes of joint pain, fatigue, low blood pressure and dizziness. It appears that just such an episode was brought on by the exertion of Hayley’s climb; by the time she neared the top of the stairs she was breathless and dizzy, and had to sit down to rest, her head ‘spinning’.  Hayley’s husband continued the short distance up to the concourse, to get help.

Unfortunately, the ‘help’ which Hayley’s husband encountered was in the form of PC T of the British Transport Police. PC T returned with Hayley’s husband to find her short of breath and in obvious distress, sitting down in the stairwell, but rather than approaching her with care and compassion the Officer was immediately aggressive and confrontational, accusing Hayley of being “inebriated”. Refusing to listen to her explanation of the situation, PC T spoke over Hayley in a rude and demeaning way.

Hayley managed to get to her feet and struggle up the remaining steps unaided, but on stepping out onto the brightly lit concourse, felt faint and dizzy once more and had to sit down, her vulnerable condition now being severely aggravated by the fact that PC T was berating her for alleged drunkenness and was trying to chase her out of the station on the grounds that it was closing soon, rather than simply allowing her a few moments to get her breath back. Hayley was understandably appalled by the Officer’s behaviour and spoke up to protest about his attitude – though at no point did she swear or use foul language. She managed to get to her feet again, reproaching PC T for his rudeness and trying to explain about her medical condition, to no avail. In any event, Hayley  and her husband were now making their way towards the station exit, and were only a short distance from the door when, possibly in response to hearing Hayley state that she was going to report him for his unprofessional behaviour, PC T escalated the situation beyond the bounds of common sense by producing a pair of handcuffs and proceeding to chain my helpless client’s hands together announcing to his colleague “She’s winding me up now, I’m arresting her.”

Hayley was in a state of total shock, distraught and sobbing. Her husband’s protests were to no avail as PC T and his colleague bundled her into a police car and drove her away, with her wrists in severe discomfort from the tightness of the handcuffs, which, even had there been justification to arrest her, were totally unnecessary. At no point had Hayley been violent or aggressive. Indeed, when I subsequently reviewed the CCTV footage from the station concourse I was shocked at PC T’s aggression towards Hayley given the massive disparity in their size and strength.  Hayley is a slightly built woman, only 4 foot 11 inches tall, whilst PC T, over 6 feet in height, looms over her, encased in his body armour. His use of any force against her was completely unjustified.

And so too was her arrest – PC T did not even inform Hayley what she was being arrested for, although we now know it was for alleged “drunk and disorderly” behaviour.

Hayley described her feelings at this point as follows –

“By the time I arrived at the Police Station I was shaking. I couldn’t breathe, it was as if I wasn’t in my own body, I just lost it. I was fading in and out of reality”

Hayley now faced the extremely traumatic experience of being processed in a police station as a suspected criminal, subjected to the indignities of a body search and being stripped of her possessions, before being locked, feeling isolated and intimidated in a cold and dirty cell (the toilet roll was floating in the toilet bowl). Her wedding ring and her dress had been taken away from her, and she was forced to wear an ‘all in one’ paper body suit. For a woman of impeccable character, with no previous experience of the criminal justice system, this was all the more traumatic.

Eventually, having been incarcerated all night, Hayley was released from custody the following morning. Prior to her release, the police asked her to accept a “fixed penalty notice” for drunk and disorderly behaviour – which she absolutely refused to do. She knew she had done nothing wrong; but this was the first point at which Hayley ‘s courage and strength of character were put to the test, for she knew that by standing up for what was right – and indeed she was brave enough to do that now, even after the mental torment of being imprisoned in a cell all night in humiliating and degrading conditions – she was exposing herself to a prosecution in the Magistrates Court at which she had every fear PC T would tell lies about her behaviour and try to deceive the Court .

Hayley made this decision to fight for justice, knowing full well that she and her husband would now face many months of litigation leading up to trial and that the trial itself would be a very stressful event likely to put even more pressure on her fragile state of health. She was aware she would not qualify for Legal Aid. She was aware that if she was ultimately convicted this could severely damage her career as a teacher, as the conviction would show up on an enhanced CRB certificate.

In my Hayley’s own words –

“The easy way out would have been to simply accept the notice and pay the fine. However, I was brought up with a strong conviction of what is right and wrong. My arrest was wrong. I was determined to fight”.

A Long Fight for Justice

Some six month after my Hayley’s arrest, her case went to trial at the Magistrates Court. The whole process of preparing for and then attending the trial was incredibly stressful for Hayley and there were times when she felt understandably overwhelmed and physically sick.

She felt as though her personality had been altered as a result of this incident; she found herself to be much more anxious at home and in work, and vulnerable to panic attacks, when previously she had always prided herself on being a strong and confident person. She had to take time away from work, and felt that she was letting down her colleagues and pupils as a result. Nevertheless, she fought on.

It became clear that PC T was going to maintain the lies he had told about Hayley, and was going to claim that she was drunk and had sworn at him, all of which she denied.

On the day of the trial itself, Hayley’s resolve was tested once again when the CPS prosecutor offered to discontinue the proceedings if she accepted a “bind over” (to be of good behaviour or to keep the peace). If she accepted, she was advised that no conviction would be recorded. Her own Barrister, who in fairness had only been instructed the night before disappointingly seemed to lack conviction in her case, and recommended that Hayley accept. She refused, knowing she had done nothing wrong and determined that PC T should not get away with what he had done. The trial went ahead and I will let Hayley tell you the result in her own words-

“After evidence, the Magistrates retired before returning to declare that I was not guilty.  I was so relieved.  I was tearful and emotional”.

But this was just the beginning of her fight for justice. Hayley had not given up, she hadn’t taken the ‘easy’ options – even when alone and vulnerable in the police station, even when advised by her barrister to take the ‘bind over’ – and she had cleared her name. But she knew she was still entitled to restitution, and she could have no proper sense of justice until she had held PC T to account for his actions. It was time for her to turn the tables and put him on trial.

The next step Hayley took, therefore, was to lodge a formal complaint with the British Transport Police about PC T’s behaviour. She was visited by an officer from the Professional Standards Department and gave a full statement about what had happened. The officer took this away, and an investigation was commenced; 6 months later, to Hayley’s total dismay, she received a 14 page report from the Police rejecting her complaint and totally exonerating PC T.

This was very much a case of hurtful insult being added to a deeply felt injury. Hayley was at this time still struggling to come to terms with the enormity of what had happened to her – locked in a police cell and dragged to court to face charges that could have wrecked her professional career – and already felt that she was no longer the person she had been before this incident. In her own words-

“I did not feel like me anymore, that somehow I had been stolen”.

Hayley’s sense of self worth, her pride and confidence, her relationship with her husband, children and friends were all affected by this shadow hanging over her. Although she had been found not guilty at trial, she couldn’t stop thinking about the injustice of what PC T had so casually and arrogantly done to her, and now – with the dismissal of her complaint by the PSD – it felt as though he had ‘won’ again, and all the bad feelings came back. Hayley continued to feel degraded as a person, and now almost gave up – burying her head in the sand and trying to forget about what had happened. This did not ultimately make her feel any better however; she was just bottling up these very hurtful feelings.

Hayley had in fact already contacted me about bringing a claim, but when the PSD report arrived, she was so demoralised that she almost gave up on the case, failing to answer my letters or telephone calls.

For many months I had no contact from her, but I did eventually resume contact and persuaded her to continue.

Notwithstanding the complaint findings, I knew from the papers I had seen that Hayley had a good case, and furthermore, I knew that she was an honest and truthful person who had suffered badly as a result of Police misconduct and deserved to see justice done. I also knew what she did not, from years of long experience, that Police internal complaint investigations are almost invariably biased in favour of the Officer being complained about and their raison d’etre is not a full and frank, impartial investigation into the facts – but an exercise in looking for excuses to cover up Police wrongdoing and let the guilty Officer off the hook.

For that reason, unlike my client, I knew the complaint report probably wasn’t worth the paper it was written on, and the fact that her complaint was dismissed certainly did not mean a claim in the civil courts, heard by a jury of her peers, would be.

Court proceedings were commenced and I set about obtaining medical evidence in relation to the psychological effects of this incident upon Hayley. When the proceedings were served upon the solicitors acting for the British Transport Police, we received no concession or offer of compromise to settle the case, but rather a bold and challenging letter making it clear that BTP intended to fight the case ‘tooth and nail’ all the way to trial –

“We have no doubt that your client is a highly regarded and respectable member of the community…………  However, on the evening of 25 May 2012 and during the early hours of 26 May 2012 your client had too much to drink whilst celebrating her birthday and acted in an uncharacteristic manner which was not befitting of an individual who does so much for her local community. 

Our client has no offers of compensation to make and liability is strongly denied.  Your client’s arrest was lawful and this matter will be vigorously contested. 

Given the strength of our client’s defence ……………… we will seek to enforce our client’s costs against your client in the event that this claim is continued.  If your client pursues a claim for psychological injury then we will regard this as a fraudulent exaggeration.”

With my encouragement and advice, Hayley was strong enough not to be put off by the Police lawyer’s ‘hard ball’ attitude and persevered despite the numerous besmirchments of her honesty and integrity which the Police threw at her as the case continued.

Whilst we had obtained medical evidence from an expert psychiatrist who confirmed that Hayley had suffered Post Traumatic Stress Disorder, the Police appointed their own psychiatrist who disagreed and did his best to play down the seriousness of her symptoms, arguing that she had only suffered a more minor ‘adjustment disorder’. Hayley felt that the Police psychiatrist had not listened to her properly, and his report contained a high number of factual mistakes, which were never corrected. Nevertheless, she persevered.

The solicitors acting for British Transport Police even went to the length of snooping on Hayley’s Facebook pages and putting together a dossier of social media posts – all from several years after the incident in question – in an attempt to ‘discredit’ her. Whilst Hayley and I were deeply disappointed by the Police lawyer’s invasion of her privacy in this manner, neither of us were concerned about what the Police had ‘found’. It was simply a number of posts – all years after the event- relating to Hayley participating in exercise classes. Nothing out of the ordinary at all; just run-of-the-mill (or should that be treadmill?) group fitness classes, which my client had participated in, in order, partly, to help build up her social confidence and mental health after the terrible effects of her arrest, imprisonment and prosecution. The Police were, in my opinion, quite unscrupulously, now trying to use these ‘posts’ to suggest that Hayley’s dizziness at the top of the railway station steps must have been due to drunkenness rather than constitutional/ health reasons – as if her ability to participate in a planned exercise class (‘on the flat’ in a gymnasium) years later had any relevance to how she was after climbing 160 stairs years before! It was palbable nonsense – but showed the lengths the Police were prepared to go to in order to frustrate Hayley ’s claim, and demoralise her.

But they failed entirely in that attempt; Hayley was not demoralised, but rather further energised by their unscrupulous antics, to fight on for justice. Indeed, I was then able to get the ‘social media’ evidence thrown out at a pre- trial hearing by the Judge, who quite rightly rejected it as irrelevant to the case. Still, the Police did not back down, but neither did Hayley, who after all she had been put through, including now almost 2 years of litigation in the civil courts was more determined than ever to hold the Police to account – and that meant not only PC T, but the whole organisation of the British Transport Police who seemed so determined to shield their Officer and to continue to try to oppress and humiliate Hayley, despite the clear evidence, in my opinion, that she was in the right. As we prepared for trial, Hayley had these words to say –

“I wonder how many people do the police do this to who can’t fight because they’re not strong enough or because of their past.  I feel it is right that I challenge the conduct of PC T on my behalf and for others. My husband and I had committed no crime. We were treated with rudeness and contempt when, if anything, I just needed a few kind words and a moment or two to get myself together. We were on our way out of the station causing no harm to anybody when I was arrested. It was all so unnecessary.”

Putting the Police on Trial

Hayley ‘s claim for compensation against British Transport Police finally went to trial at Liverpool County Court in June 2017. Again, the Police made it clear they had no intention of backing down. Hayley bravely relived the trauma of the experience of her arrest on the stand, and despite being brought to tears by the many unpleasant memories this stirred up, answered the Police barrister’s cross- examination with honesty, integrity and clarity.

Then, after PC T himself had given his evidence, on the fourth day of the trial, we applied for summary Judgment – on the grounds that PC T’s testimony that it was necessary to arrest Hayley “to prevent an offence against public decency” could not, on any reasonable analysis of the evidence, be true. It is not enough for an officer to honestly and reasonably suspect a person to be drunk before arresting her. The person must be behaving in a disorderly manner, not merely ‘drunk’, and furthermore – and crucially – the officer must have an honest and reasonable belief in the necessity to arrest that person, and to deprive them for however long of their liberty, and subject them to imprisonment, as opposed to dealing with the suspected offence by less draconian means.

Here PC T’s case was that Hayley simply had to be arrested to prevent an offence against public decency  – yet he had made no such allegation in his notes at the time of arrest, or when delivering Hayley to the custody sergeant in the police station, nor during the criminal prosecution of her. The first time he had made this assertion was in May 2017 as part of his defence to the claim brought by Hayley.

The criminal law guidelines in Archbold and Halsbury Law both define “offences against public decency” as being grossly scandalous behaviour described as “offending and disgusting”. Even on the Officer’s account of Hayley swearing at him – which she denied – her behaviour could never have amounted to this.

The Judge was persuaded by our arguments on the following key points;

  • That there was no reason for PC T to have suspected Hayley of being drunk – and certainly not of her being ‘disorderly’ – PC T had unreasonably dismissed the explanations given by Hayley and her husband.
  • That Hayley’s arrest was not driven by necessity under the law, or any reasonable apprehension of an offence against ‘public decency’ but rather PC T’s impatience and high- handedness, arising out of his rude, abrupt and dismissive attitude towards Hayley.
  • That any reasonable officer, in PC T’s position, rather than berating Hayley, would simply have allowed her a few minutes grace to exit the closing train station, in view of her clearly being unwell. His act of arresting her, was entirely unreasonable, disproportionate and unnecessary; as epitomised in the fact that he callously handcuffed my helpless client, who had offered no violence whatsoever to him – even on his own account of what occurred.

Accordingly, the Judge granted Hayley Judgment on the 5th day of the trial, bringing the proceedings which had been expected to run to a full 8 days to a conclusion there and then.

In English law, all imprisonment is prima facie unlawful unless and until justified by law. The burden of proof in respect of false imprisonment is therefore on the Police to prove that the totality of the Claimant’s imprisonment from the moment of the arrest to the moment of release was lawful. By cutting the trial short after hearing PC T’s evidence, the Judge found that the Police simply had no prospect of proving that any of Hayley’s imprisonment was lawful.

Hayley’s prime motivation was vindication, not compensation.   Having established liability, British Transport Police now put forward an offer of £25,000 to settle her claim.  Hayley had achieved her goal and rather than trouble the Court any further, decided to accept.

Hayley had won.  She had secured justice; my client knew that after all these years, she had been believed; that the system does work, and that wrongdoing by the Police can be put right. This was what she said to me after the conclusion of the case –

“Thank you so much for believing in me, you’ll never know how much that meant. Without people like you willing to offer support to those who have been wronged, justice would not be possible. The fact you believed in me offered me comfort and gave me the strength to challenge the inappropriate behaviour by people in power, who should be respectful, show integrity and protect. All of which were disregarded in my case causing me 5 years of considerable difficulties and greatly impacted upon my mental health. This not only affected me but also my family. You have now given me the opportunity to put this behind me and continue with my life from where it had stopped 5 years ago. I will always be forever grateful and long may you continue to ensure justice prevails for others who face similar challenges.”

But what I want to say to her is this: it is your self- belief, despite everything the Police threw at you, and all the disappointments and frustrations you suffered, and your bravery at facing up to the lies told by PC T not once but twice in both the Magistrates and then County Court proceedings that was ultimately the key to victory.

A Wake Up Call About Police Sexual Abuse

By Iain Gould, solicitor and specialist in civil actions against the police

I was saddened, but not surprised, by the conclusions reached this week by the Police ‘Watchdog’, Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services (HMICFRS) that more than half of the Police Forces in England and Wales have failed to implement plans to stop Police personnel abusing their positions for a sexual purpose.

This is a matter of grave concern to us all. As the introduction to the report states –

Police officers and police staff hold a privileged position within our society; they can use a range of coercive powers and under certain circumstances they are allowed access to people’s homes, businesses and personal information. Often members of the public are at their most vulnerable when they come into contact with the police. It is therefore imperative that all police officers and police staff act with the utmost integrity at all times and do not seek to take any personal advantage from the position they hold.

No one wants to believe that police officers and staff – whose primary function is to help the most vulnerable people in our society – would ever be involved in taking advantage of people in such a way. Nonetheless, such cases do occur, and when they do they can have a devastating effect on the lives of individual victims and corrode the trust and confidence both they and the wider public have in the police. Police forces must therefore work tirelessly to prevent and seek out this form of serious corruption and to pursue the perpetrators.

The National Police Chiefs’ Council (NPCC) has recognised the very serious nature of this type of misconduct and has defined the abuse of position for a sexual purpose as-

Any behaviour by a police officer or police staff member, whether on or off duty, that takes advantage of their position as a member of the police service to misuse their position, authority or powers in order to pursue a sexual or improper emotional relationship with any member of the public. This includes: committing a sexual act, initiating sexual contact with, or responding to any perceived sexually motivated behaviour from another person; entering into any communication that could be perceived as sexually motivated or lewd; or for any other sexual purpose.

Police Officers in the course of their duty are invested with a special trust – given a position of power and authority over members of the public, and access to the personal lives of members of the public when they are at their most emotionally vulnerable, in the aftermath of crimes of violence and abuse. Those Officers must therefore be held to the highest standards of behaviour. It is sickening that some Officers will not only fail to behave with propriety and respect towards victims of crime, but will go on to exploit them by turning a professional relationship into a sexual one. Of course, the vast majority of those cases involve male officers exploiting female victims of domestic abuse and sexual crime. HMIC statistics for the 2 years to March 2016 showed 436 reported allegations of abuse of authority for sexual gain against Police staff, 40% of the allegations involving victims of crime.

I can put a personal face on those statistics, having blogged previously about the cases of my clients “Kate” and “Clare” (and also here) who were the victims of Police officers from the Merseyside Police and West Mercia Constabulary respectively, who sought to use their positions as Officers investigating crimes committed against these young women, to initiate sexual relationships with them. Modern technologies such as personal mobile phones, text messages and social media, give these predatory Officers even more opportunity to harass and exploit their victims. It is unconscionable that Officers who have access to intimate knowledge about what domestic and sexual abuse victims have suffered then use their privileged position as the authority figure handling the case – their position in effect as ‘Protector’ of the victim to groom, seduce, assault and harass these women, thinking only of their own sexual gratification and not at all of the emotional and psychiatric harm they are causing to the woman who first came to the Police as the victim of a criminal or witness to criminal behaviour, and who now the Police are victimising in turn. This is a clear example of one of the worst types of ‘serial exploitation’ of vulnerable young women; almost as if the Police officers involved are collaborating with the original abuser, whose actions left this person at their mercy.

Of course, what compounds this problem – the bigger picture- is the failure of Police Forces to root out and stop these rogue Officers, and this issue is what HMIC’s most recent report is highlighting. Shockingly, despite well meaning statements such as that of the NPCC quoted above, fewer than half of those 436 allegations of sexual abuse perpetrated by Police staff, identified in 2016, were referred to the IPCC, suggesting that Forces were simply failing to appreciate the seriousness of this type of Police misconduct and might very well have a culture of toleration leading to abusers ‘hiding behind the Uniform’ effectively being allowed to ‘get away with it’.

These statistics clearly caused concern to HMIC who in earlier reports of 2014 and 2016 on the subject of abuse of position for a sexual purpose made the following very troubling conclusions –

  • Approximately 1 in 5 Forces were still failing to develop sufficient integrity and anti-corruption related intelligence gathering methods
  • More than half of Police Forces did not regularly monitor their IT systems for evidence of misuse
  • Almost 1 in 3 Forces did not have sufficiently well – resourced Counter Corruption Units (CCUs)
  • Many Forces needed to improve their ability to proactively seek out intelligence, rather than waiting to react to reports, so that they could intervene early to safeguard potential victims
  • Of equal concern to the problem of Forces not having the capacity/ capability to identify abuse of position, was a culture in some Forces of failing to recognise abuse of position for a sexual purpose as a serious form of corruption (indeed, in my opinion, failing to properly act when such crimes are discovered or suspected is surely more reprehensible even than failing to discover them in the first place). If such cases of sexual abuse were not routinely being referred to the IPCC then this spoke volumes about the lack of weight, or indeed even toleration, that some in the Policing community might be placing upon it. HMIC, in tandem with the NPCC and the College of Policing, called for changes to the IPCC’s mandatory referral criteria to include all cases of abuse of position for a sexual purpose.

Following on from these reports, the NPCC set out four main principles that they expect Forces to adopt as a strategy to deal with this problem –

  • Prevention – this covers vetting Officers, professional boundaries training, and guidance for supervisors;
  • Intelligence – this covers intelligence gathering, relationships with other agencies that support vulnerable victims, IT monitoring and audit, development of intelligence and the identification of intelligence gaps;
  • Enforcement – this covers recording cases as serious corruption, oversight of the force’s CCU, referrals to the IPCC, use of an investigative checklist, victim support and access to suitably trained specialist staff;
  • Engagement – this covers working with support agencies, internal and external communication strategies, raising awareness and learning organisational lessons from previous cases.

These are highly laudable principles – but are they now being followed in practice? That is the question which the most recent HMIC report is addressing, and the depressing conclusion is ‘not anything like enough…’

A culture of Police – if not toleration, then ‘oversight’- of this type of abuse and corruption by Officers appears to remain widespread.

26 (more than half) of the Police Forces of England and Wales have failed to fully act to develop plans to prevent this abuse. Whilst 15 Forces stated that they had come up with plans, but not actually implemented them (yet), 11 simply didn’t even respond properly to HMCI’s questions on this subject, demonstrating , in my opinion, a heinous disregard of such a serious problem.

Indeed, only 2 Forces (Derbyshire and Merseyside) were found to have all sufficient elements of a protection/ prevention plan in place and active practice.

Highlighting the seriousness of this problem HMI Mike Cunningham said –

When Police officers and staff abuse their position for a sexual purpose it has a devastating effect on the lives of victims and corrodes trust and confidence in the police.

It is of great importance that forces are prepared to seek intelligence on this type of corruption and when they find it deal with it vigorously and decisively.

The importance of public trust in the police cannot be understated, and forces need to do everything they can to ensure this trust isn’t eroded.

[quoted in Police Oracle 5/10/17]

Again, the work I do on a day to day basis brings me into regular contact with the real victims and real suffering behind the statistics and pious sentiments expressed by HMIC in their reports.

I currently represent two women who have been the victim of the same sexually predatory Police Officer, DC McMillian of Merseyside Police’s Family Crime Investigation Unit, who was subsequently dismissed from the Force for gross misconduct and convicted of Misconduct in Public Office, receiving a custodial sentence of 4 years.

My client ‘Josie’ turned to the Police for help in 2011 after being assaulted by her then partner, who strangled and hit her in the face.

Josie attended Southport Police Station in June 2011 and provided a statement to a female Police Officer. Her injuries were documented and photographed.

Several weeks later, Josie was contacted by DC Michael McMillan.  DC McMillan advised that her partner had been arrested and bailed.  It was suggested that Josie needed to respond to counter allegations made by her partner and in the circumstances, arrangements were made for her to re-attend Southport Police Station.

On attendance, my client was met by DC McMillan and taken into a side room where she was interviewed.

Several weeks later and in the early hours of the morning, Josie received a text from DC McMillan enquiring as to her general wellbeing.

Thereafter, Josie began to receive multiple texts from DC McMillan, who also became her ‘Facebook Friend’ and communicated with her further by the Messenger facility of Facebook and Whatsapp.

Over time, the communications from DC McMillan became of a sexual nature and content;  suggesting that Josie had deliberately worn provocative clothing for the meeting at the Police station; requesting photographs of her breasts.

Merseyside Police subsequently established that DC McMillan had sent over 50 text messages to Josie between September 2012 – February 2014.

Dc McMillan’s behaviour towards Josie was totally inappropriate and clearly exploitative, trying to take advantage of my client when her life was already difficult enough with ongoing issues including her violent ex- partner, her children and a court case involving her mother.

Sadly, Josie was not the only victim of crime who then became a victim of DC McMillan’s predatory behaviour.

Merseyside Police discovered the Officer’s wrongdoing in June 2014 when they were alerted by Cheshire Social Services to the case of a 17 year old girl who had gone missing, and whose phone was discovered to contain numerous messages from DC McMillan, who was apparently trying to get her to meet him for sex.

Subsequently Merseyside Police Anti- Corruption Unit (ACU) confiscated DC McMillan’s personal mobile phone and discovered a vast amount of data relating to his contact by text message and social media with many women, many of whom he had induced to send him pictures of themselves in states of undress and some of whom – just like Josie – he had specifically come into contact with in his role as Officer in Charge of their domestic violence cases.

I am also acting for another of these women, who had the misfortune to have McMillan assigned as the investigating officer in their case.

My client ‘Lisa’ approached Merseyside Police in 2012 reporting serious domestic violence at the hands of her partner, the father of her two children, including having been kicked in the stomach by him when she was pregnant.

DC McMillan was assigned to Lisa’s case and visited her repeatedly at her home address, ostensibly to take statements from her. He then began to send text messages overtly complementing Lisa on her looks and appearance. At first she felt flattered by this, at a time when otherwise her ‘life was on the floor’ and she felt a complete mess, with violent harassment from her former partner continuing.

McMillan’s text messages then became more blatant, referring to Lisa’s breasts and making sexual suggestions. He continued to visit her house, claiming that the CPS required further information before they could decide whether to charge her ex- partner. On one of these occasions he asked Lisa to kiss him, which she refused. Thereafter, he continued to pester her with requests for naked photographs or videos of herself, which again she refused, now in a state of considerable distress and confusion about the Officer’s behaviour.

Throughout all of this time, nothing was being done to prevent Lisa’s ex- partner from continuing to harass and threaten herself and her children. Lisa also discovered that DC McMillan was married and had children of her own, which made her feel even worse about being the victim of his predatory behaviour. Eventually, Lisa attempted to commit suicide, a terrible event to which McMillan had been utterly, callously indifferent as he exploited such a vulnerable woman for his own gratification.

To add insult to injury, Lisa later found out through Merseyside Police that there was no trace of all of the statements which McMillan had taken from her. He had been using the investigation as a cover for contacting her for his own ends, and at the same time was letting Lisa’s ex- partner get away with the crimes which he had committed against her. What a terrible situation when a woman tries to escape from one abuser only to find herself in the hands of another, this time wearing a friendly smile and a Police uniform.

I am currently bringing claims on behalf of both Josie and Lisa against Merseyside Police for Harassment and Misfeasance in Public Office, and I anticipate that they will both be awarded substantial damages, but both I am sure would simply rather these events had never taken place. Compensation can go some way to setting wrongs right after the event, but I call upon all of the Police Forces of England and Wales to ‘wake up’ to the very real and serious problem of predators like DC McMillan using their position of trust as Police Officers to exploit and injure vulnerable women, and to act immediately upon the recommendations of HMIC and the NPCC.

DC McMillan is clearly not a ‘one off’ case, yet the historical and indeed current conduct of our Police Forces in general, as highlighted in the current report, appears to be to not to treat the preventing of these sort of offences as a high priority. The Police exist to protect us from criminal behaviour; their first duty to some of the most vulnerable members of society must be to protect them from the criminals in their own ranks.

Police Search Warrant – Unlawful Entry Part 3

So far, I have explored circumstances where the Police have obtained a Search Warrant following application to a Magistrate and the Police have then either attended the wrong house (Part 1) or alternatively, have raided the right house but on the basis of faulty intelligence (Part 2).

What about situations where the Police have obtained a Warrant on the basis of up-to-date  and accurate intelligence and then raided the address identified in the Warrant but where they have then failed to execute  the Warrant correctly (and in accordance with Section 16 of PACE)?

Section 16 of PACE states as follows;

(1)    Execution of warrants.

A warrant to enter and search premises may be executed by any constable.

(3)    Entry and search under a warrant must be within three months from the date of its issue.

(3a) If the warrant is an all premises warrant, no premises which are not specified in it may be entered or searched unless a police officer of at least the rank of inspector has in writing authorised them to be entered.

(3b)No premises may be entered or searched for the second or any subsequent time under a warrant which authorises multiple entries unless a police officer of at least the rank of inspector has in writing authorised that entry to those premises

(4)    Entry and search under a warrant must be at a reasonable hour unless it appears to the constable executing it that the purpose of a search may be frustrated on an entry at a reasonable hour.

(5)   Where the occupier of premises which are to be entered and searched is present at the time when a constable seeks to execute a warrant to enter and search them, the constable—

(a)shall identify himself to the occupier and, if not in uniform, shall produce to him documentary evidence that he is a constable;

(b)shall produce the warrant to him; and

(c)shall supply him with a copy of it.

(6)   Where—

(a)the occupier of such premises is not present at the time when a constable seeks to execute such a warrant; but

(b)some other person who appears to the constable to be in charge of the premises is present,

subsection (5) above shall have effect as if any reference to the occupier were a reference to that other person.

(7)   If there is no person who appears to the constable to be in charge of the premises, he shall leave a copy of the warrant in a prominent place on the premises.

(8)   A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued.

Where the Police have executed a warrant, it is therefore necessary to check very carefully whether there has been compliance with the criteria.  In R v CC of Lancashire ex P Parker  the Court of Appeal decided  that the wording of S15(1) was such, that any non-compliance  would render the whole search unlawful.

In 2007, I successfully concluded a claim on behalf of my client David Khan against West Yorkshire Police.  I helped establish that he had been the victim of an unlawful arrest and assault by police officers employed by the force and he recovered £15,000 in compensation as well as a full apology.

Several years earlier, David contacted me again. In the early hours of the morning on 6 January 2012, David had been at home preparing  to shower whilst his two children were asleep in bed.  As he closed the bedroom curtains, he saw a bright light from outside shining directly into his bedroom.

David peeped through the curtains and saw what he thought were police officers armed with machine guns approaching the side of his home which is situated in a cul-de-sac.

He started to feel anxious and worried that he was about to be subjected to another wrongful arrest and assault.  He therefore went out onto the hallway and stood at the top of the stairs. From outside David heard a voice shout words to the effect of “Resident of number 24, come outside”.  David  made his way downstairs, unlocked and opened the door.  He could see a number of police officers pointing guns at him but did  not know why they were there.

Given that the police were armed, David did not want there to be any suggestion that he was in possession of a weapon and therefore placed his mobile phone on the floor and then stepped outside and stood in the front yard with his arms held up above his head.

Once outside, David also realised that a police helicopter was above the house.

David could see that there were two armoured police vehicles parked in front of the gates to his driveway and that the road was blockaded in both directions. He could also see that there was an armed officer leaning on the wooden fence of the adjacent premises. There was a third officer stood by the pillar to the gates who was also pointing a firearm towards him.

David was asked if he was ‘Richard Kimble’.  In response David said that he was not and that his name was David Khan and gave his date of birth.

Richard Kimble was his ex partner’s brother.  Richard had never lived at the premises and to the best of David’s knowledge had never used the address for any reason.

The officer asked David who had been looking out of the bedroom window.  David told the officer that it had been himself. The officer repeated his question and he repeated his reply.

The officer  then asked him if there was a child in the house and it then occurred to David  that he was referring to his younger son who was upstairs and who had obviously been awoken by the commotion.  As a result David told the officer that it was his son who was at the bedroom window.

The officer told David  to shout up to his son and tell him to come downstairs.  David did as he was asked and his son made his way downstairs and outside.

David then told the officer that his daughter was also upstairs in bed and he was told to go into the house slowly and call her downstairs.

During this discussion with the officer David noticed that the officer had a photograph of  Richard Kimble and that he appeared to realise David was not the person he was looking for.

David returned  into the house and went upstairs to his daughter’s bedroom. Fortunately, at that time she was asleep and had not witnessed events outside. He woke his daughter.  She was understandably dazed and disorientated and did not realise what was going on.  He told her that the police were outside wanting to speak to him and that they were armed with guns.

David’s daughter  became instantly upset and started to cry. She thought that David would be beaten up by police again as during the incident which led to David’s previous civil claim against the same police force.  David told her that everything would be alright but that she needed to come downstairs with him.  He took his daughter downstairs and both went outside and joined his son.

David was then searched by an armed police officer at the rear of one of the police vehicles  that was parked near his driveway and was then told to make his way towards a police vehicle parked a few metres away and to take his son and daughter with him.

The situation was extremely frightening and embarrassing.  Neighbours who had  become aware of the presence of the police had come outside to see what was going on.  It seemed as though the whole street was outside.

David and his two children sat inside the police van, still in shock and in the dark as to why the police were even at the premises.

There was no police officer in the vehicle with David and the children and the door was kept slightly open. David felt shock, apprehension and concern for his children’s welfare whilst his daughter sat on his lap, crying. They were kept in the van for about 30 minutes.

During this time, firearms officers performed a preliminary search of the house to ensure no one else was in the house and that it was safe for other officers to conduct a full search.

Eventually, the van door opened, David and the children were told they could go back inside if they wished.

By this time, the armoured police vehicles had left the scene, as had most of the police officers.

As they went back into the house, the only police officers remaining were two CID officers in plain clothes.

The officers told David that they would be carrying out a search of the premises.  They explained that they would be starting the search in the children’s bedroom so that the children could go back to bed once the search was finished.

One of the two police officers remained with David and the children in the lounge while the other carried out a search upstairs.

As and when the officer had finished searching the children’s bedrooms, the children were allowed back upstairs and went back to bed. The search lasted for about an hour. At this point, the officer said to David “This is a copy of the search warrant”.

Prior to the officer saying this there had been no mention that the police officers were in possession of a search warrant. Further, no copy of the warrant was shown to David prior to this moment.

The officer produced a document and requested that David sign it to confirm that nothing had been seized by the police.  David signed this document and a copy of the search warrant was then given to him.

The police officers then left the premises.

It transpired that two serious armed robberies had been committed at 02:21 hrs and 04.39 hrs on 4 January 2012.  In each case a gun was used and discharged.  Enquiries showed that the robber had used a particular motor car. At or about 5pm on 5 January 2012 a police officer identified Richard Kimble as a man shown on CCTV getting into that same motor car on 3 January 2012.

Officers applied for and secured  an ‘out of hours’ search warrant to search Mr Kimble’s last known address, namely David’s home address for firearms/ammunition.  This had been falsely given to the police by Richard as his home address when he was stopped in October 2011 and without David’s knowledge or permission.

David was at first concerned that the police raid was some form of ‘pay back’ because he had previously brought a successful civil claim against the force but in truth, the police decision to obtain and execute an armed search warrant was entirely legitimate.

So

  • Police were at the right address as detailed in the warrant.
  • Police intelligence clearly linked the offence to the house (even though David and his children were entirely innocent).

BUT, on close inspection, the police had failed to comply with the terms of Section 16; on David’s account, the officers had entered his home address without producing any search warrant to them and without supplying a copy rendering their entry unlawful since contrary to Section 16(5) of PACE.

It was on this discreet point that West Yorkshire Police subsequently admitted liability and my clients went on to recover substantial compensation for trespass, false imprisonment and assault.

As Parts 1, 2 and 3 show, it is imperative that for the police to establish a lawful entry/search of premises, they must

  • Get the right house.
  • Ensure the intelligence upon which they secured the warrant is up to date and as reasonably accurate as can be, and
  • Comply with the provisions of Section 16 of PACE.

“An Englishman’s Home is his Castle ?”

Reflecting on this case, I am very happy that I was able to secure compensation for David and his family after this highly distressing incident – but also I am conscious that some might think the award of compensation was only due to a ‘technicality’ i.e the family’s entitlement to damages did not arise in this case because of wrongdoing on the part of the West Yorkshire Police but purely because the officers involved failed to give David the search warrant at the start of the process, rather than the end. Had they given it to him at the beginning, the search would have been entirely lawful and no right to compensation would have arisen for David or his children.

Nevertheless, I think it is quite correct that David brought this claim, and it is absolutely right to hold the Police to account to the strictest ‘letter of the law’ when they are claiming entitlement to enter and search a private home, going through all of a family’s personal possessions and  in the process – effectively – holding the family (including children) captives and shattering the sense of peace and security that we are all surely entitled to feel in our homes – particularly children.

I wrote in my last blog on this subject about the importance of the Human Rights Act, enshrining the right to Privacy and Family Life, but of course the concept that a person’s home is their private space and is not to be infringed lightly by the forces of the State is far older than the Human Rights Act or the European Convention on Human Rights – it is one of the fundamental tenets of ‘British Liberty’  long upheld by the Common Law of England & Wales before the HRA was even dreamt of, and summed up by the famous expression “An Englishman’s home is his castle.” That is why it is quite correct that the modern law governing search warrants, as set out in PACE, sets strict guidelines with which the Police must comply before any entry into a private home can be deemed legal. To allow the Police to ‘get away’ with these strict guidelines, such as in this case a failure to produce the warrant for the person whose home was being ‘invaded’ by them, would be to remove an important safeguard  upon the power of Police officers as agents of the State, upsetting the balance between the rights of individuals and the power of government. We must not allow our fundamental liberties to be chipped away in this manner, and if the Police wish to exercise an extraordinary right – to come armed into your family home, and turn it upside down (often both emotionally and physically !), go through your private belongings – well then, they must be held to an extraordinarily high standard of behaviour, including the fair transparency required by the production of the warrant to the homeowner as an absolute condition before a legal search can go ahead.

As a former Prime Minister of this country, William Pitt the Elder, said in 1760 –

“The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail, its roof may shake, the wind may blow through it. The rain may enter. The storms may enter. But the King of the England may not enter. All his forces dare not cross the threshold of the ruined tenement.”

Long may the law continue to uphold these admirable sentiments, in their modern context, and I am sure Mr Pitt would be the first to cheer the safeguards and protections to all of our ‘cottages and castles’ built into the Police and Criminal Evidence Act.

(All names in this blog have been changed apart from the name of an Eighteenth Century Prime Minster)

 

Police search warrant, unlawful entry- Part 2

I previously blogged about situations where on the back of intelligence the Police execute a Search Warrant following application to a Magistrates’ Court.

In the last blog I referred to a case where the Police raided the wrong house, but what about situations where they attend the right house but the house is now lived in by a family wholly unconnected with the object of the search?

After months and months of saving up, my clients Anthony  and his partner Jane were able to purchase a 3 bedroom house in Liverpool.  The house was in something of a state and over a 3 month period, they paid for renovations before finally moving in in December 2015 with their 2 children.

Unbeknown to them on the 15 January 2016 a Search Warrant was issued by a  District Judge at Liverpool Magistrates’ Court upon Police application, permitting the entry and search of the said premises for cash, betting slips and mobile phones.

On the morning of the 28 January 2016,  Officers of Merseyside Police set out to execute the Search Warrant.

On this occasion, both Anthony and Jane were in bed at the premises asleep.  Their 2 children then aged 7 years old and 18 months were also asleep in adjoining bedrooms.

At approximately 06.59 hours 6 uniformed Police Officers attended.

Entry was gained to the rear garden by force to prevent any escape from the rear.  Entry to the house was then sought via the front door which was found to be locked.

In the circumstances, a ‘Method of Entry Team’ forced the door open with an Enforcer (basically a battering ram),  called “Breach” and officers then entered the property which they found to be in darkness.

Anthony and Jane were awoken  by the noise and got out of bed.

Such was the unexpected nature of the incident, Anthony and Jane initially believed that they were the target of dangerous criminal offenders.

Following entry, the officers proceeded upstairs and entered into Anthony and Jane’s bedroom where they were both  “secured”.  An officer asked “Where’s Bill Sykes?”   The officers then ordered that Anthony and Jane to dress and proceed downstairs.

Simultaneously, an officer entered the bedroom of their 7 year old son waking him and causing immediate and immense distress to the boy and another Police Officer entered the bedroom of his 18 month old brother, before removing him from his cot, resulting in an outburst of hysteria from the infant.

The whole family were understandably very upset and distressed.

Anthony and Jane proceeded downstairs as directed.  They were given a copy of the Warrant and realised that the officers were searching for the previous occupant of the premises.  Anthony and Jane explained that they had purchased the property from the main suspect’s mother in August 2015 and that they had moved in in December 2015.  Jane then produced documentation to confirm both her own identity and that of Anthony and their ownership of the premises.  After 20 minutes or so, it was apparent that the officers accepted Anthony and Jane’s account.

Despite Anthony and Jane providing the said evidence, the Warrant only being issued for specific evidentiary items and the officers realising  that Anthony and Jane  were the current owners of the premises and therefore  not who they were looking for, Anthony and Jane continued to be detained during which time  they were asked questions regarding their source of income, the nature of their employment and the purchase price of the premises.  Furthermore, checks were carried out on the premises’ utility meters to ensure that they were operating without interference.  To add further insult, one of the officers present  remarked that Anthony and Jane should regard themselves “lucky” that the search of the premises was not accompanied by television crews, a feature of other searches which had taken place that day. In all, Anthony and Jane were detained for approximately 1 hour.

Such was the force with which entry was gained, the front door was damaged beyond repair.  Anthony and Jane were required to purchase a replacement door at a cost of £900, money for which was not readily available and had to be borrowed.  As a result, it was not until 31 March 2016 that the front door was finally replaced.  Further, forced entry caused damage to the interior plaster around the door frame.  Damage was also caused to the back gate and fencing panels.

As a result of the trauma and anxiety which had been caused by the disturbance to the premises, Jane was unable to attend for work that day.  Likewise their 7 year old son had to be kept home from school.

The whole incident took place in front of Anthony and Jane’s neighbours causing further embarrassment particularly as the family had only just moved in to the house.

Subsequently Anthony and Jane discovered that the search at the premises and other addresses that morning was the culmination of a lengthy Police investigation, spanning several months.  Despite careful planning and preparation which might be expected for such an operation (part of which was being ‘televised’), there had been a complete failure to check and confirm current occupancy of the premises.

Begrudgingly, Anthony and Jane were provided with an apology from Merseyside Police.

Due to their outrage at the treatment they had received, Anthony and Jane instituted a formal complaint and contacted myself to pursue a claim on their behalf.

Ordinarily, the victim of such a raid could allege trespass, assault and false imprisonment (as in the case of Mr and Mrs S reported here), but here, the officers had entered and searched the correct address, the address that was identified in the Search Warrant and had executed the Warrant correctly.

In the circumstances, the Police could rely on Section 6 of the Constables Protection Act 1750 and were thereby protected from a lawsuit.  In short, in the absence of any information to suggest that the Warrant was in any way defective or that it had been executed incorrectly, the Police had a complete defence to any proposed claim for trespass and associated wrongdoing notwithstanding the fact that Anthony and Jane were completely innocent.

So if an action for trespass, assault and false imprisonment was bound to fail, how could Anthony and Jane  seek redress?  Following review, I advised Anthony and Jane to bring a claim under the Human Rights Act and specifically a breach of their right to private and family life as protected by Article 8.

Breach of Article 8 of ECHR

Article 8 provides:

Right to respect for private and family life.

  1. Everyone has the right to respect of his private and family life, his home and his correspondence. 
  1. There shall be no interference by a public authority with the exercise to his right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 

Once an interference with rights to private and family life and respect for the home has been proved, the public authority must then prove that the interference was in accordance with the law, in pursuance of a legitimate aim and necessary in a democratic society.

It was clear to me that if proper enquiries had been made and the facts of those enquiries had been properly reported, the Police would have concluded that in early January 2016, there was no reasonable or probable cause  to apply for a Search Warrant.  In other words, the Police had failed to carry out basic steps  to verify the connection between the address and the offence and suspect under investigation.  The resulting Police action which caused Anthony and Jane considerable fear and alarm was wholly unreasonable and disproportionate and sufficient to constitute an interference with Anthony and Jane’s rights under Article 8.

I’m sure that it was on this basis that following investigation Merseyside Police admitted the breach and agreed to pay compensation.

Both Anthony and Jane and their 7 year old son were traumatised by the incident and I was able to arrange for them to see a Psychologist who recommended that they undergo a course of CBT.  Subsequently, I am pleased to report that  settlement terms  have just been agreed with Anthony and Jane receiving total compensation of £17,500. Their son’s case is presently ongoing.

The Importance of the Human Rights Act

This case really brings home the important part which the Human Rights Act plays in the proper functioning of a modern democratic society.  We often hear negative comments about the Human Rights Act from Conservative politicians such as David Cameron  and Michael Gove and newspaper barons such as Paul Dacre of the Daily Mail, who wish to see it repealed on the basis  that it enshrines ‘political correctness gone mad’ and gives too many rights to criminals, suspected terrorists and others (although Mr Dacre’s list of undesirables probably also includes celebrities as he was particularly concerned about the Human Rights Act reinforcing peoples’ rights to privacy against snooping journalists).

However, I am confident that the Human Rights Act in the hands of the fair, balanced and generally conservative British judiciary  is overwhelmingly a positive rather than a negative tool, and this case I have reported above shows how it was absolutely necessary to ensure that a young family received fair and just compensation for the wrong they had suffered.

Stories such as that of Anthony and Jane showing the real benefit and protections to family and private life that are provided by the Human Rights Act are little reported, and indeed are probably deliberately overlooked by the Tabloids when they are whipping up the next round of fury against the legislation and supposed ‘PC – madness’ or ‘compensation culture’.

I would urge us all to be very careful about letting the Government abolish the Human Rights Act and thereby roll back some of the most important protections we have against unjust treatment by the State, or undue interference with our private lives.

After all, where did the European Convention of Human Rights, the founding charter which is implemented in British law by the Human Rights Act come from?  It was drafted in the immediate aftermath of World War II by a leading British lawyer and Conservative MP Sir David Maxwell-Fyle, with the express intention of ensuring the civil liberties necessary to protect effective political democracy against the dangers of fascism and the totalitarianism that were deeply rooted across the continent. These civil liberties arose from the strongest traditions of British liberty in the UK, going back to the Bill of Rights, Magna Carta and all that the English Common Law had done over many centuries to extend those rights.

So the Human Rights Act and the European Convention of Human Rights, and the European Court of Human  Rights (which has nothing, by the way, to do with the European Union) far from being alien to British justice were from their inception part and parcel of it, and remain a linchpin (as this case shows) of the proper functioning  of a just and peaceable civil society.

Don’t let anyone throw your rights away!

Police search warrant, unlawful entry – Part 1

A common sight in today’s media is news and photographs of an organised early morning Police raid on a residential home or series of homes, carried out in accordance with a Magistrates’ Court Warrant.

These stories are released by the Police to proclaim their success in terms of the seizure of drugs, firearms and/or cash and the arrest of key suspects.

What is often not publicised  is where frankly the Police ‘screw up’ in terms of planning or execution of these Search Warrants. Sadly, this happens more often than one might imagine and for all sorts of reasons.

Police get the wrong house!

I have just concluded a claim on behalf of Mr and Mrs S who live at 43 Lake  Road, Liverpool L99 8BS with their 3 young children. (NB All personal details changed.)

On the morning of 2 August 2016, at approximately 06:45 – 07:00, Mr S was showering in the upstairs bathroom, prior to leaving the premises to go to work.

Mrs S was asleep in the matrimonial bedroom.

Unexpectedly, Mr S  became aware of activity outside, beginning with the noise of his dog barking and thereafter banging noises.

Upon looking outside from the bathroom window, Mr S became aware of the presence of 3 armed Police Officers, who had forcibly entered his rear garden by breaking the back gate.

Mr S called down to the Officers to ask what was going on. They looked up and one Officer pointed a gun directly at him and shouted to him ‘Where’s Cody?’ and instructed him to put his hands up. As he did so, his towel dropped. Mr S tried to reach for his towel whereupon the Officer again shouted, warning him to keep his hands up. Mr S was shocked and frightened. He replied that he did not know anyone by the name of ‘Cody’. He was ordered to go downstairs to the front door. Mrs S was roused from bed by the noise.

As Mr S got to the front door, he  was confronted by 2 Officers one of whom was pointing a gun at him. He was still only wearing only a bath towel, and was again told to keep him hands in the air.

One Officer then said “That’s not him”. It was clear to Mr S  that the Officers had attended at the wrong address.

Mr S questioned the Officers as to whether they had identified the correct address. The Officers ignored Mr S and demanded his name which he gave. Mr S  was then asked as to who else was in the premises.  Mr S advised that his wife  was upstairs.

Mr S was told to dress and to come back and to leave the front door open.

No search warrant or a copy was presented to either Mr or Mrs S.

Mr S returned to the front door and stepped outside. Mr S could see that there was an armoured Police vehicle and several marked Police cars. An Officer who was pointing a gun at Mr S told Mr S  to walk towards him slowly and to keep his hands visible. Mr S was bare footed. There were various neighbours looking on. Officers told these neighbours to get inside and stay away from windows and doors. Mr S was frightened he might be shot. He was ordered to walk to a Police armoured vehicle and to then get inside which he did.  Mr S was then asked his wife’s name.

Mrs S was then told to come outside. As she did, she saw an Officer pointing a gun at her and she was directed to put her hands in the air and walk towards the armoured vehicle and to get inside.

Both Mr and Mrs S remained under armed guard in the Police vehicle during which time they were led to believe that the premises were being searched. During this process, they were obliged to provide their personal details. Both felt that they were in effect under arrest and were not free to leave.

Following a period of approximately 20/30 minutes detention, Mr and Mrs S were advised that the Police had indeed misidentified their address and that they were able to return inside.

Notwithstanding their gross mistake, none of the Officers present offered an apology for the deeply traumatic events which had taken place. Mr S spoke to an officer about the damaged gate and was told that someone would be sent “to sort it”.

As a matter of good fortune, Mr and Mrs S young children had stayed the night with their grandparents. Thoughts ran through their heads as to what would have happened if their children had witnessed these events.

The arrival and presence of the armed Police Officers, the subsequent detention of Mr and Mrs S and the subsequent search of the premises were all witnessed by their immediate neighbours, to their great embarrassment.

Such was the upset and stress which had resulted from the Police raid, Mrs S  was unable to attend for work that day.

Later that afternoon, a Detective Sergeant visited Mrs S apologised for the mistake which had taken place and provided a bunch of flowers.

Despite the apology which was made to Mr and Mrs S no explanation was provided, nor was any reassurance given that no repeat of the incident would occur in the future.

The incident was subsequently reported in the Liverpool Echo but there was no indication in the press coverage that the Police had attended the wrong address.

The claim

Having taken instructions, I was of the view that Mr and Mrs S had viable claims for assault, false imprisonment and trespass.

Both Mr and Mrs S had been caused to apprehend the immediate infliction of unlawful physical contact (the assault). Both Mr and Mrs S had been unlawfully detained (the false imprisonment). The police officers had entered Mr and Mrs S’s property without lawful authority (the trespass).

Following investigation, Merseyside Police admitted liability for all 3 heads of claim.  It transpired that the Police had secured a Warrant for 43 Lake Road, L99 4FU.

Unfortunately, once the Warrant had been obtained, a briefing pack was prepared that by human error now had the Warrant address as 28 Lakes Road, L99 8BS and on the back of this, firearm officers were deployed to the wrong (my client’s) home address.

Both of my clients were understandably traumatised by reason of what had happened and I referred them to a Psychologist who recommended that they undergo a course of CBT.  Both clients then underwent a short course of treatment.

I then sought to negotiate settlement and following discussions, I am pleased to report that my clients received total damages from Merseyside Police of £21,000.00.

My clients were extremely distressed by the intrusion and disruption which this incident caused to their lives, particularly the embarrassment of having the event play out in full view of their neighbours.  But I think they were also conscious of how much worse it could have been were it not for the fact that Mr S was already awake, despite the early hour, and was able to interact with the officers prior to them taking their next step – which presumably (given the threat the officers obviously imagined they might face from the occupant of the house) would have been to kick the door down and burst upstairs with weapons drawn. I am sure we can all imagine the shock of being woken in our bed by armed men shouting instructions and the risk of how the wrong reaction could result in fatal consequences.  An error no matter how small, by the police which results in an armed raid on your family, is not one to be shrugged off or forgotten lightly.