How to Claim False Imprisonment Against a Taxi Driver

By Iain Gould, solicitor

Over the course of my career I have helped hundreds of  people to bring claims for damages arising out of a situation in which they have been unlawfully deprived of their liberty, whether for minutes, hours or days.  Many of these cases naturally involve abuse or misuse of Police powers – what is colloquially known as a ‘wrongful arrest’ but which is classed in the English Common Law as the tort of False Imprisonment, this being the detention or confinement of a person without lawful excuse.  It does not depend upon a person being handcuffed or locked in a cell (or any other room)  – which are perhaps  the most blatant and obvious forms of imprisonment – but covers any situation in which a person is deprived of their freedom to come and go as they please, with or without the application of physical restraint.  For example, verbal threats or commands which unlawfully stop a the person from leaving a place, would amount to false imprisonment.

 So, although many claims for false imprisonment are against Police officers who have improperly used their power of arrest, I have also represented individuals who have suffered deprivation of their liberty in other situations – for example being detained by members of staff in a supermarket on a false accusation of shop lifting or being dragged to the door of a restaurant and thrown out by a security guard, this latter amounting to both an assault and a period of false imprisonment. 

As I have said above, however, it is entirely possible for a person to commit the tort of false imprisonment against you, without actually laying a finger upon you, and that is what happened in a case which I have recently settled on behalf of a young lady from the Merseyside area who was, effectively, kidnapped by her taxi driver. 

Miss JF had been out with a group of friends in Liverpool for a meal/drinks and was making her way home with two of her friends by Hackney Cab.  At first the journey was entirely normal.  Miss JF’s two friends were dropped off first, and then the taxi driver continued towards Miss JF’s home, where she lived with her boyfriend.  

At this point, watching the taxi meter going up, Miss JF realised that she was not going to have enough to pay the full fare when they arrived at her house.  Unfortunately, she had forgotten to take into account that because this was a night over the Christmas holiday period, the taxi fare was being charged at a higher rate. 

Realising she was going to be approximately £4/£5 ‘short’ my client therefore used her mobile telephone to call her boyfriend (who was at home) from her seat in the back of the taxi, asking him to get some additional cash so as to meet her when the taxi arrived and pay the driver the shortfall.  She then also told the taxi driver about what her intention was, although he made no reply to that.  

The taxi then arrived in Miss JF’s road and pulled up a short distance away from her house.  Miss JF removed her seatbelt and leant forward to pass all the money she had through to the taxi driver in the front of the cab, explaining as she did so that although she was short her boyfriend would be there within a few moments to pay the balance of the fare (for she had called him again on her mobile a second time as they were pulling into the road). The shortfall in the fare, as anticipated by Miss JF, was around £4. The total fare was around £30, the majority of which Miss JF immediately paid. 

The taxi driver however, perhaps suspecting – quite wrongly – that Miss JF was about to jump out of the taxi without paying in full, reacted in a bizarre and aggressive manner, shouting “I have F____ing had enough of this!” and throwing the taxi into gear, accelerated away… 

Miss JF had prior to this point made no attempt to exit the taxi but had instead sat back in her seat, looking towards her home address and had just seen her boyfriend exit the house and start to proceed towards them, when the taxi driver suddenly pulled off.  

The taxi driver performed a violent u-turn and then accelerated hard along the road away from Miss JF’s home, much to the shock and horror both of herself and her boyfriend who was witnessing this.  

As a result of the sudden u-turn manoeuvre Miss JF, no longer wearing her seatbelt, was thrown from her seat and landed on the floor of the taxi, banging her head and shoulder against the partition between the passenger area and the driver’s cab.  

In shock and distress, JF tried to regain her seat.  However, the driver then swung his taxi to the left following the bend of the road, and then to the right as he pulled out onto another road and JF was jolted about on the floor of the taxi and was unable to pull herself back up into her seat.  She was having to use her hands to support herself in an awkward sitting position on the floor of the taxi and she told me that it now felt like the driver was doing about 60 miles an hour as he raced along the road. 

The taxi driver now announced to JF that he was taking her to the police station – although she had no idea of knowing whether this was true or not.  She implored the driver numerous times to slow down, but was ignored, and in panic used her mobile to call her boyfriend. 

Her boyfriend answered his mobile and confirmed that he was now in his own car following the taxi.  

Approximately 5 minutes later the taxi driver arrived at the local police station, and it was only as he slowed down on pulling into the car park that Miss JF was finally able to regain her seat in the back of the taxi.  She was in a state of total shock and watched as her boyfriend’s car also pulled up and her boyfriend got out to confront the taxi driver who had now exited his vehicle. 

Two Police officers then approached my client’s boyfriend and the taxi driver as they were arguing and after quickly ascertaining the brief facts as to what had happened, ordered everybody to sort this out between themselves, as the Police had ‘better things to do’. 

In order to see an end to this very distressing incident as quickly as possible, Miss JF’s boyfriend then gave money to the taxi driver (more in fact that he was entitled to), assisted JF out of the taxi and drove her home. 

Falsely Imprisoned by a Taxi Driver 

The taxi driver had negligently inflicted injury upon my client by the manner of his driving, causing her to be thrown from her seat, and thrown about on the floor of the taxi sustaining injury – fortunately her injuries were bruises rather than broken bones, and therefore not too serious, but the driver had also subjected her to a period of False Imprisonment from the moment he sped off from outside her home until she was released from his taxi at the police station.  The biggest effect which this incident had upon JF was, of course, not physical but emotional. 

Miss JF was a young woman, on her own, being driven away at speed by a stranger who had locked the doors of his taxi and was, to all intents and purposes, kidnapping her.  His actions were entirely unlawful, and Miss JF was entirely right to seek legal advice, when she consulted my firm. 

When Miss J F instructed my firm she did not know that she would be able to bring a claim for false imprisonment and instead thought that she could only claim for the injuries she had sustained by being thrown about in the back of the taxi as a result of the driver’s violent u-turn and speeding.  

One of my colleagues identified, however, that this was far more than just an accident claim arising out of negligent driving, and brought the file to my attention – because as well as compensation for her injuries Miss J F could also bring a claim for the very deliberate, albeit thankfully short, period of time in which she was held prisoner in the back of the taxi, being driven away to an unknown destination against her will. 

This meant that on top of the basic damages for pain, suffering and loss of amenity which Miss J F was entitled to in regards to her injuries (which are simply assessed in the same way they would be if those injuries had been sustained in a routine, accidental collision between two vehicles) Miss J F was also entitled to damages for false imprisonment.  

The governing guidelines when assessing damages in false imprisonment claims were set by the Court of Appeal in the case of Thompson and Hsu v the Commissioner of Police of the Metropolis [1998] QB 498,515 as follows:- 

“In a straight forward case of wrongful arrest and false imprisonment, the starting point is likely to be about £500 for the first hour during which the Plaintiff has been deprived of his or her liberties.  After the first hour, an additional sum is to be awarded, but that sum should be on a reducing scale so as to keep the damages proportionate with those payable and personal injury cases and because the Plaintiff is entitled to have higher rate of compensation for the initial shock of being arrested.  As a guideline, we consider, for example, that a Plaintiff that has been wrongfully kept in custody for 24 hours should for this alone normally be regarded as entitled to an award from about £3,000.  Subsequent days, the daily rate would be on a progressively reducing scale”.  

The above figures must, of course, be updated by inflation, and would therefore now equate to around £940 for the first hour and £5,640 for 24 hours detention.  

This Case Law is applicable to all incidents of false imprisonment and it is not relevant in that regard whether the imprisonment was at the hands of the Police or a ‘rogue’ taxi driver (as in this case).  The ‘sliding scale’ set by the Court of Appeal means that the first hour, and indeed the first few minutes, of any period of false imprisonment are worth more than later minutes/hours on a reducing basis, because it is at the beginning of the false imprisonment that the person experiences the severe shock of the realisation of the deprivation of their liberty.  Even so, Miss J F’s period of false imprisonment was for only around 5 minutes so the actual value of her false imprisonment claim, taking into account the Court of Appeal guidelines and allowing for inflation, was arguably not more than £200.  

However, there was another very good reason to pursue the false imprisonment claim, despite the fact that on the face of it, it would only increase my client’s award of damages by a couple of hundred pounds … 

The Claim for Aggravated Damages 

Aggravated damages are awarded where there are special features which would result in a person not receiving sufficient compensation, if the award were restricted to basic damages only.  Lord Woolf in the case of the Commissioner of Police of the Metropolis v Thompson and Hsu [1997] 2 All ER 762 CA described aggravating features as follows:- 

“Humiliating circumstances at the time of arrest or any conduct of those responsible in the arrest or the prosecution which shows that they had paid in a high handed, insulting, malicious or oppressive manner either in relation to the arrest or imprisonment or in conducting the prosecution.  Aggravating features can also include the way litigation and trial are conducted”. 

Whilst Lord Woolf was making those comments in the context of a claim for false imprisonment against the police, they of course equally apply to claims for false imprisonment against ‘ordinary’ members of the public, including the taxi driver in this case, whose conduct towards Miss J F was undoubtedly oppressive, degrading, humiliating and very distressing.  

Aggravated damages cannot be awarded in personal cases which only involve a negligent act or omission (i.e accident claims), but can and frequently are awarded in cases involving deliberate False Imprisonment. 

The Court of Appeal in the case of Thompson and Hsu recommended that if aggravated damages were appropriate the minimum award should be not less than £1,000 (now around £1700 once updated for inflation) whilst the maximum award could be twice as much as basic damages. 

It was therefore undoubtedly in Miss J F’s interest to pursue a claim for false imprisonment, because although the basic damages awarded for the short period of time for which she was actually imprisoned (around 5 minutes) were likely to be modest, the fact that false imprisonment could be proved then opened the door for her to receive an additional award of aggravated damages, more properly reflecting the seriousness of the Defendant’s wrong doing towards her.  

I have to say that I think a lot of practitioners, who do not have my specialist experience of pursuing claims against the Police, might have sadly overlooked Miss J F’s entitlement to damages for false imprisonment (and hence aggravated damages) and simply treated this as a mere claim for negligently inflicted injuries only.  

I presented Miss J F’s claim for both personal injury and false imprisonment to the taxi driver’s solicitors by way of written letter, and then, when they failed to admit liability for any aspect of the claim, commenced County Court proceedings against the taxi driver.  

Although his solicitors quickly filed a very short Defence denying any wrongdoing whatsoever on the part of their client (although failing to advance any explanation at all as to what his justification was in thinking he could drive off with a person imprisoned in the back of his taxi) they quickly started to make offers of settlement to my client.  

The solicitors initial offer to my client on behalf of the taxi driver was £5,000 damages, which I had no hesitation in advising her to reject.  

This might, indeed, have been an appropriate settlement if her claim was confined to the injuries which she sustained only, as her physical aches and pains had lasted for a few months only, but taking into account the claims for false imprisonment and aggravated damages I knew her claim was worth considerably more than that. 

I therefore negotiated further with the taxi driver’s solicitors and within 4 weeks of the initial offer had got the Defendant’s solicitors to increase their offer of settlement first to £7,100, then £9,100 and finally £10,000, which was acceptable to my client. 

By correctly identifying and pursuing the claim for false imprisonment (and hence opening the door to an award of aggravated damages not recoverable in ordinary personal injury claims) we had doubled the amount of compensation achievable by Miss J F, a very satisfactory result which I hope goes some way to helping her to put this unpleasant incident behind her. 

The taxi driver’s motivations remain, of course, ultimately unknown, although it seems likely that he thought he was entitled to take the law into his own hands when he suspected (albeit without due cause) that my client was trying to ‘short change’ him for the journey he had undertaken.  

However I was able to use my specialist knowledge of claims for false imprisonment to make the law work at its best for my client, and put her in the driving seat.

Posted in News

Can the Police detain you without arresting you?

By Iain Gould, solicitor

Do the Police in England and Wales have a power to ‘detain’ you without formally arresting you?  The answer to this question is not as straight forward one might think.  A lot of members of the public – and apparently some Police Officers themselves – assume that the Police can detain a person without arresting them, perhaps whilst they consider whether to formally arrest them or not.  However, with a few limited exceptions, the police do not in fact have such a power.

This was made clear in the case of Walker v The Commissioner of Police of the Metropolis [2014] EWCA Civ 897 in which a Police Officer had blocked Mr Walker in a doorway, preventing Mr Walker from leaving whilst the Officer sought to question him, but without the Officer intending or purporting to arrest Mr Walker.  The Officer in his statement said “I did not touch the Claimant but I made it very clear to him that he was not free to move”.

When the matter came to Court, the Police accepted that Mr Walker’s initial detention in the doorway was not for the purpose of arrest, but rather for the purpose of pursuing enquiries only. When this matter came before the Court of Appeal, the Court considered an earlier case of Collins v Wilcock in which a Police Officer took hold of a woman’s arm for the purposes of asking her questions, but without any immediate intention to arrest the woman.

The woman resisted the Officer and was initially convicted thereby of assaulting an Officer in the execution of her duty – but the conviction was overturned on appeal when the Court concluded that, unless exercising a power of arrest, a Police Officer has no greater powers than a member of the public does to detain another person, and therefore anything that went above and beyond ordinarily accepted physical contact (eg tapping someone on the shoulder to get their attention) constituted unlawful assault and battery. Hence in Collins v Wilcock because her act was unlawful, the Police Officer who was seeking to detain the woman for questioning was not acting in the execution of her Police duty. It was right then that the woman’s conviction for resisting therefore be overturned.

Robert Gough LJ’s Judgment in Collins –v Wilcock concludes as follows (at 11.78D-H) –

“If a Police Officer restrains a man, for example by gripping his arm or his shoulder, then his action will also be unlawful, unless he is lawfully exercising his power of arrest.  A Police Officer has no power to require a man to answer him…accepting the lawful exercise of his power of arrest, the lawfulness of a Police Officer’s conduct is judged by the same criteria as are applied to the conduct of any ordinary citizen of this Country.”

There are 3 exceptions to the general rule that a Police Officer grabbing hold of a person or impeding their freedom of movement (even without physical contact) to ‘detain’ them without arresting them (and any arrest must of course be in accordance with the provisions of the Police and Criminal Evidence Act 1984 which provides that no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as practicable after, the arrest) is unlawful except in 3 particular situations – firstly, if an Officer is using his statutory power of ‘Stop and Search’, or secondly if the temporary restraint/detention of the person is necessary in order to prevent an imminent breach of the peace –

“Every citizen (whether Policeman or not) in whose presence a breach of the peace is being, or reasonably appears to be about to be committed, has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those steps in appropriate cases will include detaining him against his will short of arresting him; ‘Albert Lavin [1982] AC 546, HL’ Archbold 2014 paragraph 19-429.

The third exceptional situation, is when the Police are conducting a lawful search of premises eg your home, and the question arises whether, and to what extent during the search the Police can lawfully detain you and the other occupants of the house.  I shall come back to this question in more detail below, as it was the key issue in a case which I have recently successfully concluded on behalf of a family detained by the Police but not arrested, during the search of their home.

To recap however, before we deal with the specific situation of search warrants at premises, the law is quite clear that unless an Officer is arresting you, or he has reasonable grounds to carry out a stop/search upon your person (eg for drugs for weapons or stolen goods) or he has reason to believe that you are about to be involved in a breach of the peace (ie that you are actually causing or imminently likely to cause harm to a person or his/property) then the Police have no more right to manhandle you or deprive you of freedom of movement than any other member of the public.

Most cases of such illegal ‘detention’ by Police Officers involve physical contact such as the case of Wood v DPP [2008] EWHC 1056 (Admin) which once again involved an Officer taking hold of a person by the arm in order to question, but not arrest them (even if the questioning was in order for the Officer to form a view as to whether or not the person should be arrested).

Such unlawful physical contact by a Police Officer would constitute assault and battery, even if no injury as such was sustained, whilst an Officer detaining a person without touching them but without the threat of force (actual or implied) or, as in the case of Walker by blocking a person’s route of ‘escape’ from a confined space, then this would amount to false imprisonment, and likewise give rise to a claim for compensation.

False imprisonment is a tort (civil wrong) which can of course be committed in any circumstance where a person is deprived of their liberty and cannot freely go about their business and it therefore applies just as much to a situation where a person is handcuffed in the street, or otherwise held by a Police Officer, or is locked in a police car as it does to actually being placed ‘behind bars’ in a police cell.

The amount of compensation that can be awarded, might, however, be fairly minimal if the detention only amounted to a ‘technical’ false imprisonment for a very short period of time.  This was actually the conclusion reached in the ‘Walker’ case, as Mr Walker’s detention in the doorway only lasted for a matter of seconds, before he then became violent himself and was legitimately arrested.

The damages awarded to Mr Walker by the Court of Appeal was therefore only £5!

As you will see, the case in which I have recently represented a family subject to unlawful detention during a Police search of their home resulted in a much more substantial award of damages, which in my view, for all the reasons set out below was only right and proper.

Detained by Police but not arrested during a house search

My clients, Mr and Mrs W and their son J (who was 15 years old at the time) were at home on the morning of 28 January 2015 when Officers from Wiltshire Constabulary burst into their home, startling my clients who were in bed.   The Officers had come in order to execute a warrant to search the premises (and its occupants) under the Misuse of Drugs Act.  The warrant arose from intelligence that drugs were being dealt from the house.

Several officers immediately went to the bedroom of 15-year-old JW, who was in bed, and they then handcuffed J informing him that he was to be detained whilst the search of the premises took place.

J asked the Officers several times whether he was under arrest but his question was ignored.  In fact, at no point did any Officer purport to formally arrest J, but that did not stop them handcuffing him and taking him outside to a police van, in which he was then detained for approximately 2 hours whilst the Police searched the house.

Shortly afterwards, J’s father Mr W was also removed from the house by the Police and locked in a separate van.  Both vans were parked in a community car park close to the local bus stop.  Again, the Officers did not arrest Mr W for any offence, they clearly had no grounds to, but nevertheless, like his son, they kept him imprisoned in a van for 1 ½ hours until he began to ask to be allowed to contact a solicitor for advice as to the legality of his detention.

During his detention Mr W was aware that several of his neighbours and other passersby and bus passengers could see him being detained in the van, which, in his own words made him feel ‘like an animal in a zoo.’

Eventually Mr W and half an hour later his son were released from the vans in which they had been locked, and the Officers departed the premises, having found no drugs or any other illegal material, and no further action was taken against any of the family in connection with this matter.

The W family were understandably aggrieved by what had happened to them.  The family initially sought advice from criminal defence solicitor Paul Cantril of Aitkin & Co.  Paul was of the view that the Police action was unlawful and intimated a claim.  Following investigation Wiltshire Constabulary denied liability suggesting that Mr W and J were disruptive and aggressive towards the attending officers and in order that the warrant could be “executed safely and effectively”, both Mr W and J were “placed” within a police van located outside the property.

The W family disputed that they had been disruptive and aggressive and on that basis, Paul felt the actions of the Officers in detaining Mr W and J were unlawful notwithstanding the denial of liability. Having referred a number of claims to me over the years, he asked if I would take the case on.  On review, I agreed that the W family had a case and agreed to act.

It soon became apparent that the Police had arrived at the W’s property on the day in question with the intention of immediately removing Mr W and J from the property ‘in order to prevent them from interfering with the search unless they demonstrated a willingness to cooperate.’  There was however no evidence that Mr W or his son had in any way actively sought to frustrate or interfere with the search and the allegation that Mr W and J had been ‘aggressive and disruptive’ were dropped.  If they had been disruptive, then the Police could lawfully have arrested my clients for obstructing the Police in the execution of their duty.  As I say however, there was no evidence that any obstruction had occurred, the Police did not attempt to justify the detention of Mr W and his son by reference to a lawful arrest, instead they took what appeared to be an entirely pre-emptive action to lock the 2 of them in confined spaces in the back of police vans in a public road for a period of around 2 hours.

I was of the view that this action was draconian, unnecessary and an illegal act on the part of the Police.

So the question arises, do Police Officers executing a search warrant at premises have a power to detain some or all of the occupants of the premises whilst the search is carried out, if those occupants are not doing anything which would otherwise amount to reasonable suspicion of a criminal offence, and thereby justify a lawful arrest?  To what extent are Police Officers who behave in the way that they did towards the W family behaving outside the bounds of the law, and subjecting people such as the Ws to false imprisonment?

There is extensive case law in regards to this issue.

Sedley LJ in the case of Thames Valley Police v Hepburn [2002] EWCA Civ 1841 gave Judgment as follows (para 14):-

“If a person obstructs a Police Officer in the execution of his or her duty an offence is committed and a power of arrest arises.  That, and not an implied power to detain or manhandle people who are doing nothing wrong, is how the law protects Officers executing a search warrant from interference.” 

 Whilst I wholeheartedly endorse that statement of the law, the Court have in other circumstances put a different interpretation on the powers of the Police whilst carrying out search warrants which might seem to justify limited acts of ‘detention without arrest’ during a search.

The apparently clear-cut definition given by the Court of Appeal in the case of Hepburn was however somewhat ‘diluted’ by a later Judgment (albeit from the High Court, which is a lower tribunal than the Court of Appeal) in the case of DPP v Meaden [2003] EWHC 3005 (Admin) [2004] 1 WLR 945 at paragraph 29 of the Judgment Rose LJ stated as follows:-

“The crucial distinction between Hepburn’s case and the present case … is that the search warrant in that case was limited to the premises, whereas here the warrant applied to both the premises and to any persons found there”.

 The Judge further went on to state, at paragraph 32:-

“Here the warrant authorised a search of premises and persons for controlled drugs … it could not be effective, particularly in premises on 2 floors, presently occupied by a number of people, if the occupiers were permitted to move about freely within the premises while the searches were going on.  Although I accept that it is for the Police to show, and the burden upon them is a heavy one, that the use of force was necessary and reasonable, it seems to me to be entirely reasonable that Officers should seek, by no more force than is necessary, to restrict the movement of those in occupation of the premises while those premises are being searched.”

 I therefore anticipated, that in response to the claim of my clients the W family, the Police might well seek to rely upon the Judgment in the case of Meaden, and although that was a decision by a lower Court than the Court of Appeal Judgment in Hepburn there was also an earlier decision of the House of Lords (therefore outranking the Court of Appeal decision) which I knew the Defendant could rely upon.  This was the case of Murray v Ministry of Defence [1988] 1 WLR 692.

In the case of Murray Army Personnel entered a house in Northern Ireland in order to search for a terrorist suspect.

The Soldiers conducting the search directed all the occupants of the house to assemble in one room until the person who they had come to arrest was identified and could then be formally arrested and removed from the house.

In his Judgment at page 700B Lord Griffiths states as follows:-

“That very short period of restraint when they were asked to assemble in the living room was a proper and necessary part of the procedure for affecting the peaceable arrest for the Plaintiff.  It was a temporary restraint of very short duration imposed not only for the benefit of those affecting the arrest but also for the protection of the occupants of the house and would be wholly insufficient to found an action for unlawful imprisonment.”

 This implied power of Officers, whether of the Army or the Police to temporarily restrict the liberty of the occupants of the premises where a search is being conducted was also endorsed by the Court of Appeal in the case of Connor and Others v Chief Constable of Merseyside Police [2006] EWCA Civ 1549.

This case involved a search of premises by the Police for firearms believed to have been involved in ‘gangland incidents’.  During the search the adult male occupant of the house, Mr Connor, was handcuffed and detained in a police car for less than an hour before then being brought back into the house to accompany a specialist firearms search team as they carried out their search.

Mr Connor brought a claim for false imprisonment against Merseyside Police in relation to his period of detention in the police car, which was dismissed by The Court of Appeal.

The Judgment of Lady Justice Hallett (at paragraph 72) was as follows:-

He was detained in a warm police car and only for so long as was necessary to conclude the first part of the search …  His period of restraint may not have been as short as it was in the case of Murray but it was a restraint of relatively short duration … imposed not only for the benefit of those affecting the search, but also for the protection of those in and about the house.  In my view, it is simply unarguable that on the facts of this case his detention was unnecessary and disproportionate.”

 On the basis of the decisions in Murray and Connor it does appear unarguable that the Police have got a power, when executing a search warrant, to temporarily restrict the movement of people in the premises being searched without necessarily having any grounds or requirement to formally arrest them.

However it is equally clear from the careful wording which each of the Judges have used in those cases, that this power is not a ‘cart blanch’ to allow the Police to do whatever they want with the occupants of the premises.  It is clear that any detention imposed whether by handcuffing, locking a person in a police vehicle, or even restricting their movement to one room of the house, must be reasonable and proportionate and must go on no longer than is absolutely necessary for the police to safely and efficiently carry out the search.

It will be noted that both the cases of Murray and Connor not only involved far more serious circumstances – one was a search for a terrorist suspect, the other was a search for firearms connected with gangland incidents, and both searches carried a real risk that the people involved might be injured, or even killed, in an armed confrontation, whereas the search of the W’s family property was in connection with suspicion of low-level distribution of drugs and the Police had no reason whatsoever to believe that Mr W or any other member of his family were terrorists or gangsters, or in any other way armed and dangerous.   Furthermore, the detention in both of the far more serious cases was significantly shorter than that of the case of my clients.

In Murray the detention was only for a matter of minutes, whereas in Connor, even in the circumstances of it being a firearms search, the detention was for less than an hour.

In my client’s case however, both Mr W and his teenage son were detained for over twice as long as the suspected gangster Mr Connor was.

I therefore had every reason to advise my clients that their detention was almost certainly unlawful on the grounds of it being unnecessary, and even if it was necessary, prolonged to a duration which was completely unreasonable.

There was also no need for the detention to have been carried out in the confined space of police vans parked on the public highway.  I see no reason why the W family couldn’t simply have been asked to assemble in one room and kept there under supervision while the rest of the house was searched.  I agreed with the opinion of Mr W, which that the Police had chosen to publicly humiliate him and his son by treating them in the manner that they had.  There was no reason at all why the search could not have been safely and efficiently carried out with the W family being allowed to remain in the privacy and comfort of one room of their house whilst it was conducted.

As is so often the case, the Police initially disputed my client’s claims and filed a Defence alleging that they had correctly exercised their power to detain Mr W and JW.  Notwithstanding their denial, I believe that the Police knew full well that the Offices involved had gone too far in imposing such a draconian detention, and indeed shortly prior to trial the Police backed down and agreed to pay my clients damages of £7,250 plus legal costs.

In my opinion this was the right outcome, and it is entirely right that the Court protects the liberties of individuals not to be detained by the Police without arrest save in special circumstances and carefully regulates the conduct of the Police in those special circumstances to ensure that the power of detention accompanying a search warrant is not abused or exploited by the Police.

Of course I agree that it is entirely sensible that the Police should have powers to restrict people’s movements during a search, or to briefly detain them in ‘common sense’ situations where otherwise the search cannot be carried out in an orderly manner, or particularly if the safety of people involved is at risk, especially when the search is for firearms or particularly dangerous suspects.

In the case of the W family however none of those special criteria applied – the detention was not a brief one, it was not based on any actual disruption to the search on the part of Mr W or his son (only a suspicion by the Police that they might be disruptive) and the search was for illegal drugs, not firearms with the Police having no reason to suspect violence would be offered to them by the occupants of the house.

I feel that it is important that cases such as those of the W family should be pursued through the Civil Courts as an essential part of the checks and balances which maintain our civil liberties.  If claims as such as those of the W family were not brought then I believe it is likely we would see the Police incrementally extending their use of detention without arrest powers and subjecting more people to unlawful detention in circumstances which do not have to be justified by the strict criteria which are quite rightly applied to formal arrests.  The policing of Police powers through the Civil Justice System is essential to the functioning of a free and healthy democratic society, and I am proud to play my part in that.

 

Posted in News

NEW CRIMINAL OFFENCE;SHOPPING WHILST BLACK

Iain Gould solicitorBy Iain Gould, solicitor

I have just concluded two cases that were due for trial this month.  In both cases, my clients had been arrested in similar circumstances whilst seeking to establish their ‘consumer rights’

In both cases, each  police force had robustly denied liability forcing my clients to issue court proceedings and press for trial.  Only on the eve of  trial was settlement agreed a five-figure award of compensation plus legal costs in both cases.  Of significance,  both clients are black men.

Arrested for complaining about a pair of shoes?

My first client Mr M had recently purchased a pair of trainers from a well-known national Sports Shop chain which transpired to be faulty.  Along with his wife, he returned to the store with the trainers, the original box and receipt, hoping to receive a refund or credit note.

Mr M spoke to an assistant and then the manager.  The manager  refused to provide a refund or credit note. He advised my client that the trainers could only be returned if they had not been worn or if they had a manufacturing fault. Mr M  was of the opinion that if that was the policy adopted by the Store then such was plainly unlawful, and he forthrightly told the manager ‘That’s BS’.

Mr M and the manager argued about consumer rights and the Sale of Goods Act. My client said the shoes should be returned to the manufacturers.

Mr M was told to leave the store. He refused to do so unless a refund was given.  My client was warned in terms that the store’s security staff would be called.

Two security guards then attended. They asked Mr M to explain his position, which he did calmly. The guards refused to intervene.

Mr M returned to the counter and told the manager  that he would not leave the store until a refund or credit note was proffered.

The manager responded, ‘I’m not talking to you any more, I’m not interested. That’s it’. The Police were called.

Two police officers of West Midlands Police then attended the store. They were PC K and PC A.  They spoke to the manager who told them that he didn’t wish to make any complaint against Mr M. Rather, he just wanted Mr M to leave the store.

Mr M spoke to PC K and explained his position. Whilst he did so, three other officers attended the store.

PC K pointed out to Mr M that this was a civil dispute and that Mr M would have to take it to Court. Mr M advised PC K that to go to Court for a dispute over trainers costing £40.00 would be impractical.

Exasperated,  my client then decided to leave the store and said to his wife, ‘Forget it, love, let’s go’. As Mr M proceeded to walk away, PC K obstructed his path, put his hand up and pushed my client who immediately stepped back and asked why the officer had assaulted him.

PC K then told Mr M that the police required his details so as to effect an arrest.  At this, PC K sought to seize hold of Mr M’s arm. Mr M pulled his arm up so that the officer could not restrain him. A second officer then sought to intervene. Both officers then pushed  Mr M up against a glass counter. PC K said, ‘Take him to the floor’.

Mr M shouted in response, ‘Get the fuck off me’. Mr M was held, pinned down by the two officers using their body weight, across the counter. CCTV footage of the incident showed the  two officers pushing Mr M against the counter.

Mr M was then pulled away and, as a result of the officers’ continuing use of force upon him, felt his legs go from underneath him. He fell to the floor face down with his arms underneath him. Various officers sat astride him, holding him down.

One officer, whom Mr M believes to have been PC K, was shouting, ‘Release your arms’ but Mr M was unable to do so because of the weight/pressure of the other officers, which they continued to use against him.

The other officers began to get off Mr M and simultaneously PC K punched Mr M as hard as he could’ (as he later admitted) to the right shoulder. Mr M was able to release his arm from under himself whereupon his arms were seized and he was handcuffed to the rear by PC A.

Whilst being handcuffed, PC K pushed  my client’s face down onto the floor, which caused  an injury to the right side of Mr M’s forehead.

Other officers assisted Mr M to get to his feet. Mr M was then escorted from the store to a nearby police vehicle and thereafter transported to Sutton Coldfield police station.

The custody record in respect of the ‘Circumstances of Arrest’ indicated;

‘Officers were called to a report of a male and female acting aggressively within the store. Upon arrival at the store, spoke to the store manager who stated that he had been approached by the person in custody in the store who was making a complaint about a pair of trainers. he explained to the person in custody that it was not a manufacturing fault with the item. he claimed the person in custody became verbally aggressive towards him and he felt threatened by his manner. He was happy for matter to be dealt with by prop crime recording. Spoke to person in custody, tried to ascertain his details to carry this out. However he became agitated and tried to walk past me and refused his details. I put hand up in front to prevent him from leaving and then he accused me of assaulting him and refused details. Arrested for section 5 public order for original matter. became rigid and obstructive and refused to comply. Was taken to floor by the counter and struck twice with closed fist on back’.

Mr M was taken to a cell and sometime later also arrested for resisting a constable.   Again, the Custody Record recorded the circumstances of arrest: “During the original arrest, the person in custody became violent and had to be restrained by force”.

Mr M was later interviewed in which he gave a detailed account, denying any criminal behaviour.  Towards the conclusion of the interview, the interviewing officer explained to Mr M  that instead of arresting him, the matter could have been dealt with by an apology, that is why officers were trying to obtain his details.

After a lengthy period of detention, Mr M was released on bail. Upon answering bail several weeks later,  my client was charged as follows;

Words/behaviour-harassment alarm distress; used 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 Contrary to section 5(1) and (6) of the Public Order Act 1986.

 And

Resisting or obstructing a constable contrary to Section 89(2) of the Police Act 1996.

 Mr M later attended Court as required and pleaded a not guilty.  Some 4 months later, Mr M attended Court for the trial.

At the trial, PC K  gave evidence on oath against Mr M to the effect that;

(a)  Mr M had, when asked for his name and address told PC K to ‘fuck off’;

(b)  PC K had given to Mr M a reason for the arrest and for its necessity;

(c)  PC K informed Mr M about resolving the issue by ‘Local Resolution’.

Following evidence, the Magistrates retired to consider the issues. After consideration, Mr M was acquitted.

Shortly after his arrest, Mr M lodged a complaint.  By reason of sub judice, the Police refused to investigate  his complaint until he conclusion of criminal proceedings.    As is so often  the case , the complaint was the subject of  what was in my opinion a poor and lack luster investigation, the conclusion of which was that no officer was culpable of misconduct.

My client did not realise that he could take a civil action against the Police for his arrest and prosecution until several years later following telephone contact.  I agreed to represent him and brought proceedings just in time.

At the time of the incident, Mr M had been employed as a security guard. This brought him into frequent and respectful contact with the Police and made him aware at all times of the need to act reasonably and within the law.

Notwithstanding the passage of time, Mr M had good recall of the incident and presented as a calm and reliable witness and his wife.  Notwithstanding the very different factual accounts of the incident provided by the Police Officers,  I felt that my client’s account was more likely to be believed than the officers.

Irrespective of the different factual accounts, what struck me was that ultimately  this was a dispute over a £40 pair of trainers and the actions of the Police were wholly disproportionate to that dispute.  Quite simply they had made a mountain out of a  molehill.

White Staff Member, Black Customer, Guess Who Gets Arrested?

This suggestion of excessive use of power/force was also evident in the case of my second client, Mr Mc.

Mr Mc had recently purchased a car wax product for £15.00 which he considered to be of poor quality.  He  attended the store and spoke with the manager and asked to exchange his purchase The manager told Mr Mc that the store policy did not allow an exchange once a product had been opened.

Mr Mc had read up on his consumer rights and was of the opinion that he had a statutory right to take another product of equal value to that which he had purchased.  Mr Mc selected another car wax and proceeded to walk out of the store. He left his receipt and the item he had previously purchased on the counter.

The manager informed Mr Mc that he would call the police.  My client replied that he should call the police. Mr Mc was no abusive to the manager at any stage.

After 1 or 2 minutes, Mr Mc returned to the store.  He anticipated that the police would be able to resolve the dispute and decided to await their arrival.

When Mr Mc re-entered the store, the manager was on the phone.  Mr Mc asked the manager , “is that the police?” which the manager eventually confirmed.  Mr Mc told the manager that he would await the arrival of the police.

While Mr Mc was waiting at the till area for the police to arrive, he saw the manager dispose of a piece of paper in the bin under the counter.  Mr Mc asked the manager if the paper was his original receipt, which the manager denied.

Mr Mc was concerned that the receipt was his only proof that he had previously purchased the item from the store. Without his receipt, he would not be able to prove to the police that he was entitled to an exchange.

Mr Mc asked the manager where the original receipt was.  The manager replied that he did not know. In the circumstances, my client walked around the till area and began searching through the bin for his receipt.

The manager did not ask Mr Mc to step away.  He remained with my client behind the till before walking away and leaving Mr Mc searching the bin.

Mr Mc then moved from behind  the till area to the side of the counter.  He was joined  by the manager.  At this point,  Mr Mc had noticed the original receipt  inside the purchase bag which had been moved to the side of the counter.

PC H of the Metropolitan Police arrived at the shop at this time. PC H immediately walked directly towards Mr Mc at a brisk pace.  As he did this, he said “Right, you’re under arrest, put your hands together”.

Mr Mc was perplexed at this.  He immediately presented his hands above his head, palms facing outwards in a stance of ‘surrender’.  Mr Mc asked the officer why he was being arrested.

In response, PC H pushed Mr Mc backwards.  With handcuffs in his hand, PC H grabbed hold of Mr Mc’s arms and hands and attempted to handcuff him.

Mr Mc was forced backwards  against the wall.  He still had his hands up by his sides in a non-threatening, passive stance.  Mr Mc did not know the reason or grounds upon which he was being arrested.  He repeatedly asked PC H to tell him why he was being arrested.

PC H said, “Stop resisting, put your hands together and bend down on the floor”. PC H restrained Mr Mc by holding his arms.

PC H refused to explain the grounds or reason why he was detaining and/or arresting my client.

At this point, PC H suddenly drew out his baton.  Mr Mc asked PC H why he had deployed this weapon and explained that he just wanted to talk with the officer.

Suddenly, PC H then struck Mr Mc with his baton on the lower thigh, just above his knee. At no stage had Mr Mc been violent, aggressive or threatening towards PC H.  There was no reason for this use of force. PC H then struck my client in the same place again with the baton at which point, Mr Mc instinctively struck PC H back with his left hand causing.   Mr Mc did this to defend himself from PC H.

PC H then tackled Mr Mc to the floor and he was restrained  on the ground.

At this point, two other officers entered the shop and assisted with restraining Mr Mc.

Mr Mc was handcuffed and transported to Chiswick police station.

At the police station, Mr Mc was strip searched and placed in a cell.

Mr Mc was later interviewed.  He provided a full account and repeatedly asserted during the interview that PC H would not tell him why he was being arrested, despite repeatedly asking and that he had punched PC H instinctively in self-defence.  Eventually, Mr M was released on bail on condition that he later return to the police station.  Mr Mc was subsequently informed that no further action was to be taken against him.

Once again, Mr Mc lodged a complaint within a few days of his arrest.  Once the Met Police had decided to take no further action against him, the complaint was investigated.  Once again, the complaint was dismissed.  This time, Mr Mc lodged an appeal to the IPCC.  Unfortunately, following what appeared to be to the IPCC upheld the original be a fairly cursory review investigation decision finding that “PC H’s account that he was unable to hold sufficient conversation” with my client when he entered the store was satisfactory and instructed me to act for him.

My client’s only redress now was to bring a civil claim.  Following review, Solicitors acting on behalf of the Met denied liability.  So as to advance the claim, I then issued Court proceedings on behalf of Mr Mc for damages for both false imprisonment and assault and/or battery.

As part of the criminal investigation, some (but not all) of the store’s CCTV footage was secured.  Although there was no sound, the footage verified my client’s account and showed in my opinion unreasonable behaviour by the Police Officer.

The footage showed that upon arrival, PC H  immediately attempted to detain my client with almost no dialogue before PC H attempted to handcuff Mr Mc.  This does not support PC H’s assertion that Mr Mc was aggressive and/or uncooperative.  In fact, the footage showed Mr Mc clearly adopting a submissive gesture with his hands up and palms facing outward.

Once again, the Police Officer’s reaction to a relatively trivial consumer dispute was heavy-handed and completely unnecessary. In both of those case when met with a black man who did not become immediately completely submissive but who tried to set out his version of events in a reasonable manner, the Police Officers involved responded with pure and naked aggression.

It is hard to imagine that the skin colour of my client was not a factor in each case.  We know, for example that black and ethnic  minority people are three times as likely to have taser guns deployed against them by the Police, and by reasonable analogy this presumably applies to other forms of violence as well, for which clear statistics are not so readily available.

At their least both of these matters were minor disputes over in one case a pair of shoes with £40 and in the other a bottle of car wax worth less than that which ended up taking tens of thousands of pounds of tax payer’s money in the time and costs of prosecution, complaint and civil claim and  which could have been diffused and resolved by a few polite words on behalf of the officers included.  Instead the officers jumped to the conclusion and to physical violence almost immediately “seeing red”.

Or should that be “seeing black”?

 

 

Posted in News, Police claim comments

Why Claims Against the Police are About More Than Just Compensation

By Iain Gould, solicitor

Some people would have you believe claimants involved in civil actions against the police are only interested in financial compensation. As this blog post shows, they’re not.

Recent news reported the enactment of the Policing and Crime Bill under which approximately 49,000 gay and bisexual men found guilty of decades old sexual offences in England and Wales have been posthumously pardoned.  In addition, the new law will allow approximately 15,000 living men who were found guilty of sex acts that are no longer illegal to apply to the Home Office for a pardon.

The offence of gross indecency was created by Section 13 of the Sexual Offences Act 1956 at a time of intolerance to the practice of homosexuality between men. The offence of indecency between men (colloquially known as “gross indecency”) was referred to, together with the offence of buggery, as  “an unnatural offence”.   Society did not recognise or approve of the practice of homosexuality between men until the Sexual Offences Act 1967, subject to limitations.  However, the legal recognition did not correspond, entirely, to attitudes.  Since 1956, there has been an evolution in the attitude towards homosexuality between men, it being noteworthy that there  was never  any corresponding offence of homosexuality between women.  Effectively, a gender distinction existed until the introduction of the Sexual Offences Act 2003, whereby the concept of “indecency between men” was finally abolished.

This development reminds me of a case in which I was involved in a short time ago. My client was the victim of serious Police Misconduct and pursued a complaint (that was not upheld) and a subsequent civil claim (for which he secured substantial damages and an apology). In line with the complaint findings, and following receipt of a formal letter of claim, the offending police force denied liability.  In the circumstances, it was necessary to issue Court proceedings.

My client considered himself a man of good character and I described him as such in the Statement of Claim. In response to the claim, the police force filed a Defence in which they  denied that my client was a man of good character on the basis that in July 2002, received an adult caution for an offence of “gross indecency” (a consenting homosexual act with another man aged between 18 – 21).

Indeed, my client accepted that he had received a caution in 2002 for Gross Indecency, a year before the final abolition of that offence.  In truth, he (like many) believed the caution to be spent and “scrubbed” from the records.  He was outraged that reference had been made to the caution which was clearly done to blacken his name and intended to scandalise.

I prioritised  my client’s ongoing claim.  Following settlement (my client received substantial damages and a formal letter of apology) I sought to have removed from both local and national police records, details of the index arrest but also of the caution for Gross Indecency.  The deletion of records pertaining to the index arrest was straightforward.  Deletion of the caution for Gross Indecency  was not. My client had been arrested by British Transport Police but processed by another force. Following enquiries with this other force, I lodged an application for deletion with British Transport Police.

The grounds on which the application was based were not only that the caution was for an offence that had since been abolished, but also  because of  a failure to adhere to Guidance on the issuing of cautions.

The Guidance for the administration of a simple caution provides that the following criteria must be satisfied:

  1. The offender has made an admission of guilt.
  2. The offender understands the implications of accepting a caution.
  3. The offender consents to accept the caution.

For the purposes of clarification, the Guidance provides that an admission is “A clear and reliable admission to committing the offence or offences for which the simple caution is being given”.

As the Guidance makes clear, “Accepting a simple caution has potentially significant implications for an offender all of which must be explained to the offender before he or she is invited to accept it and the simple caution is administered”.

Specifically, the implications include:

  1. A simple caution is an admission of guilt to committing an offence and forms part of an offender’s criminal record.
  1. The simple caution forms part of an offender’s criminal record and a record will be retained by the Police for future use.  It may also be disclosed in Court in any future proceedings.
  1. A simple caution may be disclosed to a current or prospective employer in certain circumstances.
  1. All information relating to simple cautions is retained on the Police National Computer (PNC).

Finally, the Guidance recognises that before the administration of a simple caution, a Police Officer should ensure that the offender has had the opportunity to receive free and legal independent legal advice in relation to the alleged offence.

On behalf of my client, I submitted the following;

  1. He did not, at any time, make any admission of guilt which would amount to “a clear and reliable admission to committing the offence”.  Specifically, he disputed that the relevant conduct was such as to amount to an act of “gross indecency”, accordingly, on that basis alone my client was not eligible to be offered a simple adult caution.
  1. The full implications of accepting a Police caution were not explained to him.  Specifically, my client was advised that a caution represented a “slap on the wrist”. Further and more worryingly, my client was told that the caution would last for “between 5-10 years”, which is clearly wrong, when the period is indefinite.  The Guidance, by recognising that a simple caution has “potentially significant implications for an offender” repudiates the suggestion that a caution can ever be regarded as a “slap on the wrist”.  Moreover, my client was not advised that the caution would form part of his criminal record, that it would be retained by the Police for future use, that it may be disclosed in any future Court proceedings, that it may form part of a disclosure to a current or prospective employer or that it would be retained on the Police National Computer.  The failure to advise my client in these terms was a derogation from the accepted practice and misled my  client into believing that it would be no more than a “slap on the wrist”.
  1. He was not at any stage given the option, at any time of receiving any legal advice.

After numerous reminders, my client finally received confirmation that his caution was deleted 12 months after submitting the application.  My client was delighted; “Words can’t express how thankful I am to hear you had the caution successfully removed for me.  I can now continue my life without the thought of it hanging over me”.

My job goes beyond winning compensation in the case I am instructed to pursue.  Vindication, an apology, and removal of erroneous data from the Police database are of significant importance to my clients.  In this case I was proud to be able to help remove the stain on my client’s name and good character caused by an improperly administered caution based on an ‘offence’ of sexual relations between consenting adults which we as a society have thankfully recognised is no crime at all.

 

Posted in News

Choosing the Right Lawyer

This is a guest post by my colleague and fellow solicitor, John Hagan.

Further to my recent post about the importance of appointing a specialist Actions Against the Police lawyer to represent you in a claim where you believe you are the victim of Police misconduct I will now discuss the other recent case which I settled against West Midlands Police on behalf of my client A.N, who received a compensation award of £15,000.

A.N a young man of exemplary character, was cycling to his local Tesco in March 2012 when he was stopped by a lone West Midlands Police Officer (PC Y) who directed him to stop using his patrol car’s blue lights. A.N, who had been cycling entirely properly along the road, duly pulled his bike over to the side of the road and waited whilst the Officer pulled up alongside him. A.N’s account of what then happened is as follows. A.N asked the Officer if he had done anything wrong.

PC Y stated No, there had been a lot of car crimes in the area and that he wanted A.N’s name and address. As stated above, A.N is a man of good character who has no criminal record. He did not feel he had done anything untoward to warrant the Officer’s suspicion, had simply been cycling along a public road and did not wish to be processed through a computer when he had done nothing wrong. A.N therefore, quite correctly, exercised his right not to give the Officer his name and address.

Police Officers do not have the authority to require members of the public to provide their name and address if they are simply being subjected to a stop/search and have done nothing else to warrant suspicion of a crime. PC Y appeared to become tense and agitated at A.N’s refusal to give his personal details and exited his car and came towards A.N. A.N felt intimidated by the Officer’s demeanour and behaviour but told PC Y “You can search me if you wish, I have nothing to hide.” At this point A.N was standing less than a yard from the kerb, in the carriageway, with his bicycle between his legs and he voluntarily handed his bag to PC Y so that the officer could search it. PC Y dropped A.N’s bag as soon as it was handed to him and then produced handcuffs. A.N was understandably shocked at this serious and unjustified development. PC Y – who even on his own account of events had no justification whatsoever to arrest A.N -stated that he was going to handcuff A.N for the purposes of carrying out the search. As A.N had not been physically resisting the Officer and had actually offered himself to be searched, there was, in my opinion, absolutely no justification for him to be handcuffed and both A.N and I agree that this appears to have been a deliberate attempt by the Officer to intimidate A.N and to make him feel ‘powerless’ in an attempt to get him to answer the Officer’s question as to his name and address which he was not in fact obliged by law to do.

Matters now began to escalate quickly out of hand. A.N describes how PC Y, threw the handcuff onto A.N ’s right wrist and then tugged very hard on the chain, twice backwards, pulling A.N off his bicycle, causing the bike to fall to the ground.

A.N described how the handcuffs were tightly pressing around his wrist and that PC Y then used the handcuff chain as if it were a ‘leash’ to pull A.N violently from side to side, repeatedly. A.N was in utter shock at the Officer’s violent behaviour. As a result A.N experienced significant pain and to his wrist and hand.

PC Y, then took A.N in a body lock and threatened to use a CS gas spray against him ¨Do you want me to spray you?¨A.N stated “I do not know what you want me to do!”; and with that PC Y picked him off his feet and then threw him hard to the ground. A.N landed on his knees and fell forward bumping his forehead on the road surface. A.N then felt PC Y lifting A.N’s right arm up behind his body and felt the handcuff being pressed very hard into his already injured right wrist, which caused him to cry out in pain. A.N felt PC Y applying increased pressure to the handcuff which was digging into his right wrist. PC Y repeated a process of applying, releasing and then re-applying the pressure on A.N’s wrist approximately 6 or 7 times, each time causing A.N to cry out with pain. The whole time no commands were given by the Officer other than to ¨Shut up!” as A.N cried out.

PC Y then finally handcuffed both of A.N’s hands together behind his back and pulled him up onto his knees. A.N felt considerable pain in his left knee as his tibia had been fractured from when PC Y originally threw him to the ground.

PC Y then stood A.N up on his feet and demanded of him “Now you have to give me your name and address.” A.N who was fearful of being assaulted again and was desperate for the excruciatingly tight handcuffs to be removed, did so.

It appears to me that PC Y had lost control in a moment of madness and had launched into a vicious assault against an innocent man who had committed no crime whatsoever and who had not even attempted to argue with the Officer, save for exercising his lawful right to withhold his name and address.

Needless to say PC Y’s subsequent search of A.N’s bag revealed nothing incriminating. However A.N had to remain standing in the road, still handcuffed for a further 20 minutes.

More Police Officers soon arrived and a discussion took place during which PC Y asserted that he had lost the key to the handcuffs. After repeated polite pleading for the cuffs to be removed, eventually, a key was produced, he was then released, given a plaster for the wrist bleeding and told that he could go on his way from the scene.

At the end of the incident, A.N stated to all the officers ¨I want to make a complaint¨. They Refused to take down any notes and even refused A.N a biro so that he could make notes of the car plates and collar numbers.

PC Y issued A.N with a stop/search form pursuant to Section 1 Police and Criminal Evidence Act 1984 (PACE). It stated on the Stop Form – Suspicious male in high crime area, evasive towards Officer.

Legal action

Understandably suffering from both the physical and psychological after effects of this shocking incident A.N instructed a firm of Solicitors, who purportedly specialise in claims against the police. A.N noticed this company at the top of a google search because it paid for an advertising slot.

On 30th July 2012 the Solicitors agreed to act on behalf of A.N in relation to his claim against the Police on a no win, no fee basis without any enquiry as regards his eligibility for legal aid. They also took out a legal expense insurance policy on his behalf to protect A.N from having to pay Police legal costs if his case was lost at Court. Unfortunately, I think that A.N made the wrong choice of Solicitor, as although his Solicitors held themselves out as Actions Against the Police specialists their subsequent conduct of his claim shows that they did not have the requisite knowledge to deal confidently with a claim against the Police and nor to correctly assess the merits of A.N’s case.

A.N, advised by his Solicitors, filed a complaint with West Midlands Police against PC Y.

Regular readers of this blog won’t be surprised to read that the complaint investigation report by West Midlands Police exonerated their Officer and made no findings of wrongdoing against PC Y whatsoever. However, as I have said before, this is neither a legal nor really a practical barrier to making a civil claim for compensation in the County Court. Very often, in my experience, the Police Internal Complaint investigator will give the benefit of the doubt to his uniformed colleague rather than the victim/complainant and will look for reasons to dismiss the complaint rather than impartially and objectively assess all of the evidence.

I am therefore not perturbed by the conclusions of complaint investigation reports, which often appear to me to be half baked, lightweight and lacking in thoroughness compared with the proper, forensic examination and objective weighing up of the evidence which will take place before a Judge and Jury at the Court.

I see the complaint procedure primarily as a means for my client to give initial vent to his feelings of hurt and frustration at what the Police have done to him, and also as a means by which accounts of Police Officers can be obtained, but I am not ‘scared off’ if a complaint report ultimately comes back and concludes that the Police did nothing wrong.
In my opinion, the rejection of a complaint usually does not mean that the Officer involved did not do anything wrong; it just means his case was being assessed by a fellow Police Officer. I can understand why, in the stressful field in which they operate, the Police often do develop a mentality of ‘us versus them’, each force considering itself as a gang with an internal code of honour to protect its own members – and I am not the first to use that comparison, in 2012 Chief Inspector Ian Kibblewhite of the Met gave this warning

You might have 100 people in your gang – we have 32,000 people in our gang. It’s called The Metropolitan Police.

But that does not make it right. The Police complaints system is really a much wider subject for another day. Suffice it to say here that I have the requisite experience to take a Police force’s rejection of my client’s complaint with far more than a pinch of salt. Other lawyers who are not Police claim specialists however, may place far too much weight on the conclusions reached by such a report.

So what action did A.N’s first Solicitor take on behalf of him?

Initially and correctly they sent a letter of claim to the Chief Constable of West Midlands Police in October 2012, 3 months after A.N initially contacted them, setting out the basis of A.N’s claim although they only appeared to be seeking damages for the assault and injuries which A.N had suffered, overlooking the fact that he also had entitlement to damages for false imprisonment for the 20-25 minutes during which he was handcuffed and deprived of his liberty by PC Y.

Thereafter, in accordance with the pre action protocol which is designed to attempt to resolve claims without the need for Court proceedings, the Police should have provided a detailed response to the letter of claim confirming whether or not they admitted liability, what their version of events was if liability was denied, and providing disclosure of relevant documentation, within a reasonable amount of time, usually between 1- 3 months.

The Police did provide a short reply to the Solicitors in February 2013 which indicated that their enquiries would shortly conclude. Rather than pressing West Midlands Police to comply with their obligation to confirm or deny liability and to provide full disclosure, A.N’s Solicitors then allowed themselves to be side tracked into encouraging A.N to pursue a disciplinary complaint against PC Y, at the suggestion of West Midlands Police Professional Standards Department. Thereafter there was little or no progress on the file, with the Solicitors failing to actively pursue the Police for the necessary response to the claim for damages.

A.N was concerned by how long the complaint process took – he was not interviewed until 18 months after the event, during which the time the officer who assaulted him continued on active duties. A.N also felt let down by his solicitors, who had initially agreed to be present at his complaint interview, but ultimately did not attend, leaving A.N and his aged parents to deal with the investigating officer.

A.N felt that at the interview the investigating officer was not being even-handed but was biased against him, and was already trying to make excuses for PC Y’s behaviour including the ‘lost handcuff key’ incident.

Perhaps unsurprisingly, the Complaint Investigation Report was published in January 2014, concluding that there had been no wrongdoing on behalf of PC Y.
This appears to have unduly demoralised A.N’s Solicitors whose lack of experience of dealing with Actions Against the Police claims was then, in my opinion, demonstrated by the fact that the Legal Executive who had conduct of the claim felt it necessary to seek an advice from a Barrister as to whether or not the complaint outcome should be appealed to the Independent Police Complaints Commission. In my opinion, a properly experienced claims against the Police specialist Solicitor should not require guidance from a Barrister on a straightforward point such as this.

In January 2015 – with the 3 year limitation date for commencement of County Court proceedings now looming (the third anniversary of the incident was 17th March 2015), A.N’s solicitors now again turned to a Barrister, to ask them what to do.
The Barrister expressed a view, it appears primarily on the basis that this was “a case of one word against another”,that there were insufficient prospects of success to justify taking A.N’s case to Court. I subsequently read the Barrister’s advice and felt that the Barrister gave far too much credence to the Police Officer’s (uncorroborated) account of events, jumped to conclusions about A.N’s credibility without having taken the time to actually speak to A.N in person (which is absolutely critical for assessing how likely a person’s account is to be believed) and placing too much weight on an entry in A.N’s medical records far back in 2007 which related to him expressing strong views about vegetarianism and environmentalism(!).

It appeared to me that in plucking one single entry out of A.N’s medical history, simply because it related to him being assertive about his moral beliefs to an NHS worker, when there was no evidence available to suggest that he had any kind of unduly aggressive personality, or was of anything other than good character, the Barrister was actively looking for a reason to reject the case.

A.N´s solicitor also stated that the barrister was “..an extremely experienced barrister¨ and that his opinion was of the highest level. A.N assumed by this statement that the barrister surely should be someone with experience of at least 20 years. However, A.N researched the barrister and found he was actually a young man who had recently come out of university.

Inevitably, A.N’s Solicitors, who appeared in their conduct of this case to rely entirely on the opinion of external Barristers rather than forming their own view, then decided to ‘sack’ A.N’s case. Accordingly A.N’s Solicitors then wrote to A.N on 4th March 2015 – less than 2 weeks prior to the expiry of the 3 year limitation period for commencing Court proceedings– stating that because of the Barrister’s advice they were no longer able to continue acting for him on a no win, no fee basis.

A.N’s Solicitors did at least take the action of issuing a Claim Form on behalf of A.N which in effect registered his claim against West Midlands Police with the County Court and gave him a further 4 months in which to find and instruct specialist lawyers who were willing to take on his case and prepare all the Court documents necessary to accompany it including the Particulars of Claim, medical evidence and any schedule of financial expenses.
A.N was so deeply disappointed by the prevarication and apparent lack of belief in his case demonstrated by his first solicitors, who he felt had not properly listened to him, nor fully investigated his case, that he lodged a complaint against them with the SRA.

A.N had really been left high and dry and feeling absolutely worn out and demoralised by the litigation process in a situation where many people would struggle to find another Solicitor.

For obvious reasons Solicitors are not keen to take on cases where the limitation period is about to expire, or indeed already has expired, and the clock is ticking to serve Court proceedings, especially where other Solicitors and Barrister have already rated the client’s chances of success as poor.

Fortunately, A.N came to my firm and after an initial discussion with him and review of his former Solicitor’s file of papers we quickly identified that his claim did have merit, and agreed to act for him. We were also able, unlike his former solicitors, to obtain Legal Aid to fund his claim against the police.

A.N came across to me as a very honest individual and there was clear evidence in the form of medical records and photographs of the seriousness of the injuries he had suffered to his wrist and his knee, which to me was simply not justifiable in the circumstances of a straightforward stop and search.

We subsequently served the Court proceedings along with full medical evidence and began to prepare the case for trial. We brought the County Court claim not only for damages for assault but also for false imprisonment, which, as I stated above, his first Solicitors overlooked as a course of action. False imprisonment arises from any complete deprivation of an individual’s liberty no matter how long it actually lasts for nor where it takes place. An inexperienced Solicitor (or as here a legal executive) might well imagine that false imprisonment can only occur if an individual is formally arrested and transported to the Police Station.

However this incident in which A.N was handcuffed in the street for 25 minutes just as much constitutes false imprisonment as if he had been locked behind a cell door for that period of time. It was remiss of his former Solicitors to have overlooked this. The grounds for A.N s claim in false imprisonment and assault were as follows –

  • The stop and search of A.N amounted to a complete deprivation of his liberty and therefore to imprisonment.
  • The said imprisonment lacked lawful authority because it was imposed upon A.N in the absence of reasonable grounds for suspecting that he was in the possession of stolen or prohibited items.
  • No authority other than Section 1 of PACE 1984 was asserted by the Police Officer as justification for the stop and search. No other lawful authority existed.
  • PC Y did not honestly and/or reasonably suspect that A.N was in possession of stolen or prohibited items.
  • Alternatively, even if a power of search existed, the use of handcuffs upon A.N was unjustified, irrational and unlawful and PC Y failed to properly exercise any discretion as to whether A.N should be handcuffed.
  • Furthermore PC Y did not comply with the provisions of PACE by informing A.N of the grounds of the search as soon as practicable, nor identifying himself to A.N by name, rank or station.
  • The force used in taking hold of and/or handcuffing A.N constituted assault and was unlawful on constituted trespass to A.N ’s person either in every respect or as involving the use of excessive and unreasonable force.

Furthermore, in addition to the claims for assault and injury I brought on A.N’s behalf a claim for an award of aggravated damages on the following basis –

  • The conduct of PC Y was a gross affront to A.N ’s personal dignity and integrity.
  • A.N was subjected to gratuitous, unprovoked and violent force by PC Y which amounted to arbitrary, high handed, intimidating and oppressive conduct.
  • PC Y ignored or refused A.N’s repeated pleas to loosen his handcuffs.
  • The conduct of PC Y was vexatious and deliberate and amounted to an abuse of the power of stop and search.
  • The conduct occurred in a public place.
  • PC Y applied excessive force upon A.N in order to compel A.N to provide details (his name and address) which he was legally entitled to withhold during a search.

The Claim Form which had been issued by his previous Solicitors on behalf of A.N had stated that he was bringing a claim for personal injury and financial loss “as a result of negligence and/or breach of statutory duty” on the part of the Police. Legally, this was incorrect. The claim was for the tort of deliberate or reckless assault (not negligence) and neither the commission of assault nor false imprisonment (which in any event had been overlooked by his former Solicitors) amounted to a breach of statutory duty. Both of those civil offences are torts (civil wrongs) under the common law, they are not statutory offences.

Furthermore, as well as overlooking the entitlement to claim damages for false imprisonment, and confusing a claim for injuries inflicted by assault with a claim for negligently inflicted injuries, his former Solicitors had failed to state on the Claim Form that aggravated and exemplary damages would be sought which again suggests to me that they simply did not fully understand the law in this area and/or lacked the necessary experience to properly interpret it in that they had wrongly advised A.N as to his prospects of success and they had failed to properly utilise all legal mechanisms by which the fair and just amount of compensation could be won.

I am pleased to report that after initially fighting the Court proceedings, West Midlands Police, backed down before it was necessary to go to trial and agreed to pay A.N £15,000 damages in compensation plus his legal costs.

This was a fair and just outcome for A.N, and I believe that had he instructed me on day one matters would have been resolved much quicker than they were.

However he had been misled by his previous Solicitors publicity material into believing that they had the requisite experience to properly handle a complex claim against the Police such as this. I will leave the final words in regards this matter to A.N himself who sent me this kind message when the case was concluded –

I feel very lucky to have found you when I did. I was literally almost out of time in 2015 …. Finally some genuine decent help after 3 years of struggle.
Thank you very much. There was definitely some luck in our meeting but also a lot of great work, skill and patience by yourself for the win.

Posted in News

What Everybody Ought to Know About Arming the Police

iain-gould-at-bbc

By Iain Gould, solicitor

I was pleased to have the opportunity to discuss on BBC Television last week an issue which I think we should all be paying ever greater attention to, namely the increasing ‘armament’ of our Police Force.  My colleague John Hagan also had an opportunity to debate this issue with BBC 3 County’s morning talk show host Jonathan Vernon Smith last month, and I have attached an audio file of John’s interview on the JVS show below:

What I believe I am seeing is an agenda by Police Forces which, if they have their way, will likely result in the full armament of our Nation’s Police Officers not only with taser guns, but perhaps even more deadly firearms raising the spectre that Police Forces in England & Wales could soon resemble the US Police in the routine usage of deadly firearms.

I have long warned about the dangers of creeping ‘militarisation’ of the Police as by steady increments we move from a Police Force which 20 years ago was virtually gun free to one in which potentially every Bobby on the Beat might be packing ‘heat’ (as they say…).  This began with the introduction of taser guns back in 2003 and then the steady ‘roll out’ of tasers to more and more Officers, until we stand on the verge of entire Police Forces looking to equip their Constables with tasers as a matter of standard kit.  Once we have Police Forces where all of the Officers are carrying taser guns, it will no longer seem such a dramatic step to move towards increased, and then eventually perhaps universal armament of Officers with bullet firing guns capable of delivering the kind of deadly force which, in the US in 2015 saw 1146 people killed by Police Officers (figures from The Guardian).

This was exactly the issue which I was called onto BBC Humberside to discuss – because Humberside Police Federation is even as I write this pushing to arm all of its Officers with taser guns.  Likewise there is currently a survey being conducted by The Metropolitan Police Federation, which is asking all of its members if they wish to carry tasers and/or bullet firing guns.   Although the Met Police Fed has tried to present its survey as a ‘neutral’ fact finding enquiry, I fully believe that the Federation’s agenda is to get a strong ‘yes’ vote from its members in order to assist its efforts in lobbying the Home Office to arm the Metropolitan Police.  An Ipsos Mori poll in December, suggesting that 71% of the public back more police getting taser guns, was seized upon by Steve White, Chairman of the Police Federation who said “We know Officers support the use of taser … and now we have the evidence that shows the public do as well”.

The Police Federation has already written to all Chief Constables and Police Commissioners across England and Wales urging them to support the wider roll out of tasers.

Whilst I do not object to Police carrying taser guns in principle, as I fully accept that there are situations where taser use is appropriate and can significantly reduce the risk of harm to both Police Officers and civilians caught in a violent situation – the fact is that increased taser ‘roll out’ must go hand in hand with a careful training program and a recognition that not every Officer may be temperamentally suited to carry this weapon.  A fast ‘blanket’ roll out of taser guns that does not go hand in hand with proper training and screening of the Officers that are going to carry these weapons runs a significant risk, in my opinion, of creating a situation of more harm than good, given the potential for these weapons to be misused.

A second significant issue for me, as I have expressed above, is that if we do move to a situation where whole Police Forces are carrying tasers, then we have not created so much a ‘back door’ as a wide open front door for the next ‘logical’ policy step being full armament with bullet firing guns.

One thing that concerns me about the results of the survey carried out in December 2016, indicating 71% support amongst the public for more taser wielding Police Officers is that the public does not necessarily have the full information to properly judge the risk of this weapon.  We must not romanticise, or even fetishize  the taser as if it were some kind of 100% reliable, 100% safe science fiction ‘stun gun’.  It is a weapon which delivers a massive surge of electrical volts to a person’s body, running in every case a risk of fatality, and causing at the very least a temporary paralysis and burst of extreme pain to the person subjected to it.

Whilst the public is aware of the – fortunately small number – of fatalities which have occurred when taser guns have been deployed on people, one of the most notable recent occasions being the death of former Aston Villa footballer Dalian Atkinson in August last year, what the public is not generally aware of, but I am as a Solicitor who handles Police Misconduct claims, are the lower level – but much more frequent – incidences of taser misuse, which whilst not resulting in fatalities, can nevertheless cause significant long-term hurt to the people involved.

I have blogged before on some of the numerous cases in which I have been involved concerning taser misuse including a black man shot in the back with a taser gun in the hallway of his own house and another man, who also in the hallway of his own home,  had a Police Officer turn a taser gun upon him during a minor dispute as to whether or not he had knocked the wing mirror of a Police car.

What was deeply concerning to me were the comments of the Police Officer in that last case who said as follows in regards to shooting someone with a taser gun:-

…it’s worth raising that people’s perceptions of use of taser is that it is quite serious and it’s quite high up on the scale of things, and in actuality it isn’t, it is quite low down, it comes in at the same level as just putting your hands on somebody…” 

These comments were made by the Officer in response to the internal disciplinary investigation launched after this incident.  They are clear evidence that some Police Officers at least are not being properly trained to use the weapon appropriately and are not fully aware of its potential lethality.  Clearly, unless you are some kind of mutant super hero (or villain), placing your hands on somebody is in no way the same as shooting them with a weapon powered by 50,000 volts of electricity.

I was also concerned that these incidents show how easy it is for some Police Officers to use a taser gun not as a weapon of last resort but as a ‘short cut’ to resolve a dispute – even a non violent dispute – in the Police Officer’s favour before other less violent methods of conflict resolution – for example talking and reasoning  – have properly been exhausted, either because the Officer has lost his temper, or even, frankly, because he is being lazy.

These incidents, because they do not result in fatalities, are little reported by the media and hence most people are simply not aware of them.

Indeed, it is not only Lawyers such as I who handle Police Misconduct claims who are trying to sound a note of caution against the increased deployment of tasers.  Some Police Officers themselves are.  The following comes from an article written for the Guardian on 16/8/16 by Janet Hills, President of the National Black Police Association, in the aftermath of the death of Dalian Atkinson –

As a serving Officer I know what it is like to face a man armed with a knife.  I have seen the dreadful consequences of knife crime in our communities.  What I want is for the taser to be used to reduce the number of tragic incidents, not increase them.  Officers are trained to consider the most appropriate option in the circumstances but ultimately it remains the responsibility of Officers and those who employ them to justify their use of force.  These decisions are underpinned by legislation but the law can only ever be a starting point.  We must train Officers to understand behaviour, to consider all the options, and in critical situations, to be able to give the vital aftercare that is needed. 

As President of the National Black Police Association, I am clearly concerned about the disproportionate use and the impact that taser use has on our communities.  Increasing their use may seem an easy option, but we must always be aware of the concern tasers are causing in communities already filled with mistrust and fear towards the Police. 

Statistics bear out this sense of concern which non- white members of the public may well have regarding an increasingly heavily armed Police Force.  Home Office data covering the period 2010 – 15 shows use of tasers against non- white people is disproportionately heavy – a taser is 3 times more likely to be used against a black person than a white person.

That statistic alone, as Janet Hills points out, calls into question the effectiveness of the current training and screening program which Forces have in place when arming their Officers with tasers.  Surely incidents of inappropriate taser use are going to rise as the number of taser guns on our streets increases?  There are real risks of ‘trigger happy’ officers unable to psychologically handle the responsibility of carrying a gun being unleashed upon the public, especially in a time when Government policy dictates massive reductions in police budgets across the country  – Officer numbers are down a staggering 20,000 since 2010 in this ‘age of austerity’. Where on earth would the financial resources for properly training and regulating entire Forces armed with (at least) taser guns come from ?

You may also remember the shocking footage which was revealed last year showing a black motorist having the windscreen of his car smashed to smithereens by a Metropolitan Police Officer who had clearly lost control of his temper and had turned his baton upon the man’s car in a futile outpouring of rage.  I do not think it is going too far to say that situations like that in the US, where of course all Police Officers routinely carry firearms, often result in the fatal shooting of the black ‘suspect’.  If the Metropolitan Police Federation has what I suspect is its wish, and pushes for not only taser guns but actual bullet firing guns in increasing numbers into the hands of its Officers I fear we could see a similar pattern of fatal Police shootings as occurs in the US.

What I would ask everyone to do is to stop and think about whether they really wish to see what would be a fundamental change in the way our society polices itself,  moving from a non- firearm carrying Police Force to one in which all Officers routinely have at least a taser gun on their person.  As the old saying goes, if the system is not broken, why try and fix it – or certainly why make dramatic changes involving placing a significant increased amount of potentially lethal fire power on our street, albeit, in the hands of Police Officers?

The fact is that we live in a more peaceful society than we did 20 years ago.  The statistics which prove this are indisputable.  Our streets are safer than they were two decades ago. In the 12 months to March 2016, Officers had to discharge firearms on only 7 occasions, and this in a UK population of over 60 Million people. There is less violence in society and the number of incidents involving serious injury, or even death to Police Officers is thankfully minimal. The Police Roll of Honour Trust records in the 3 years 2013- 15 only two officers in the whole of the UK dying as a result of aggressive action by criminal suspects (and in both of those tragic cases, the police officer was run down by a car). Police officers are already, as a matter of routine, equipped with stab vests, truncheons and incapacitant sprays. A significant number of them already have tasers, and there are of course armed response units available to every Force. Why do we need to ramp up the militarisation of our Police any more ?

Once again, it is not only lawyers such as myself sounding this warning, but also serving or former Police Officers. Interviewed by the Daily Mirror on 10/1/17, former Metropolitan Police Chief Superintendent said this

I feel uneasy seeing armed officers where they are not needed. We have officers trained in firearms who are used when and where intelligence says they are required. I’m all for reinforcing those numbers if statistics and safety say you should. But no one has shown me that statistically they are currently not able to cope.

One thing which my colleagues and I have noticed as a disturbing and repeated theme in this ongoing debate about arming the Police over the last year and more is how those who wish to see the Police carrying more guns will invariably invoke the bloodstained spectre of Terrorism. For example, the current Met Police Federation survey refers to this as a factor.

This is notwithstanding the fact that since 2006 there has been only one terrorism related killing in the UK (that of the highly publicised case of Lee Rigby). Whilst of course, the July 2005 attacks in London tragically killed 52 people, none of those bombings could have been prevented by taser or firearm carrying officers, and, indeed, the only involvement of firearms officers in the aftermath of those attacks, resulted in the shooting dead of an innocent man, Jean Charles de Menezes.

It is true that there have in the last 2 years been multiple terrorist attacks in France, and another recently in Germany, but those countries already have a routinely armed police force, and clearly that failed to stop any of those attacks from being carried out. The fact of the matter is that the way to stop terrorist attacks is to fund our Intelligence Services, who can discover and prevent the plots before they are implemented; that is where our anti- terrorism resources should be going, not into arming the police.

People are scared, however, almost certainly out of proportion to the real risk of them being caught up in a terrorist attack, by the deeply upsetting nature of these events. However, good policy must surely be dictated by a dispassionate analysis of the actual facts and statistics, not an emotional ‘gut’ response to tragedy.

Terrorists want us to be frightened.  They want us to fundamentally change the character of our society.  Terrorists would no doubt be pleased to see the UK change itself from a society with an essentially unarmed Police Force to one where all the Police carry guns thereby increasing the levels of violence in society both as a result of accidental, angry or otherwise inappropriate or disproportionate use of firearms by Police Officers on members of the public, and the risk that criminal elements in society and/or those communities which feel more excluded from mainstream society or victimised and targeted by the Police are then likely to respond by arming themselves with increasing number of firearms escalating us towards a US style firearms society.

Paranoia and fear about terrorists potentially lurking on every street corner is not a sound basis for the formation of policy or fundamental changes to the character and nature of our Police Force.

Guns in America are responsible for approximately 30,000 deaths a year.  No terrorist campaign has come remotely close to causing that amount of harm to our society over many decades (and let us not forget that this is not the first terrorist campaign that we have faced as a Nation).

Let us not do it to ourselves.  The only way the terrorists will win, is if we allow ourselves to be terrified.  They want us to change.  Do not give in to them.

 

Posted in News

Reflections on 2016

Iain Gould solicitorGreetings to all of you as we come to the end of another busy year; a time for reflection on what we have done and what we hope to achieve in the year to come. I trust that your year, like mine, has been a challenging but rewarding one and a healthy and happy one but if it has not, then here’s hoping that next year will bring you better fortune.

The major political upheaval of 2016, the “Brexit” vote has caused repercussions in the legal sector as we enter a period of great uncertainty ahead but this has not stopped the government’s intended plan to “reform” the Personal Injury sector in favour of the giant insurance companies who contribute so much to the war-chests of the Tory party. We are currently in a ‘consultation’ period which could see people stripped of the right to obtain legal representation in claims worth less than £10,000, and indeed significantly reduce or even bar the recovery of damages for certain types of ‘soft tissue’ injury.

This is clearly going to have a knock-on effect in the area in which I specialise, actions against the police, as it will add another line of argument with which Defendant police forces can try to (effectively) strip Claimants of their right to legal representation by seeking to get cases allocated to the Small Claims track of the County Court. This is something which Defendants in my experience are seeking to do with increasing frequency but which I am pleased to say I have successfully opposed on many occasions. This is because the monetary value of a claim is not the only factor which the Court will consider when it comes to deciding whether a case is suitable for the Small Claims process. Strong reasons why actions against the police Claimants should (in my opinion) always be allowed the benefit of legal representation include the importance of the actions themselves. These types of cases which revolve around not mere ‘accidents’ but often very deliberate abuses of police power including assault, false imprisonment and malicious prosecution, as well as the complexity of the legal issues and the number of witnesses/ length of trial which police claims involve.

So whilst ultimately the changes to the Small Claims limit may not prove a major obstacle to future claims being brought by my clients, other obstacles in the path of access to justice remain which have also been scattered there as indirect consequences of the government’s reforms over the last 5 years (which might also be characterised as their “war on personal injury claims”).

For example, the government’s abolition of the right to recover the costs of your legal expenses insurance policy as part of your claim continues to cause major obstacles to those who are wealthy enough not to qualify for legal aid (most working people) but who are not lucky enough to be amongst the top 1% of the country who could fund a legal claim out of their own pockets with no concern over having to pay tens of thousands of pounds to the Defendant if they lose. A mechanism to protect losing Claimants in personal injury claims – Qualified One Way Costs Shifting (QOCS) – exists and was specifically brought in to recognise the fact that otherwise thousands with valid claims would be ‘scared off’ making a claim if they did not have insurance to cover the other side’s costs if they lost (and the cost of that insurance outweighing their likely damages made it simply not economic to obtain). However, despite repeated calls from police claim lawyers such as myself and indeed the Civil Justice Council itself, the government appears to have no intention of extending ‘QOCS’ to cover those who have suffered significant wrongs (such as loss of liberty) at the hands of the police, but who may not also have suffered an injury. This leaves other claims which do involve injury allegations, but also other aspects including wrongful arrest, in a difficult ‘half-way’ house situation and it is dispiriting for me not to be able to advise my clients with certainty that they will have QOCS protection for their claims. As a result, I have seen clients with valid claims becoming ‘frightened off’ pursuing the matter because their inability to obtain practical insurance cover, coupled with the likely costs of paying the Defendant if they lose, makes it too risky an option for them financially.

One might cynically conclude that even if the government didn’t intend this side effect of its ‘root and branch’ reform of the personal injury sector, they are indirectly benefiting from it and are highly unlikely to change it for reasons of political expediency. If you are in the process of slashing police budgets (officer numbers down 20,000 since 2010) so as to cut central government costs, you are unlikely to enact a law to make it easier for valid claims to be pursued against the police (and by extension the public purse) even though it is undoubtedly the right thing to do.

Another side effect of the government’s anti- personal injury claims agenda has been to drive more and more accident claims practitioners to look for alternative sources of work. Lawyers without the specialist experience which I have in this area are therefore starting to ‘dabble’ in police claims which can have severe adverse consequences for their clients. You need somebody who knows what he is doing!

The government has also signalled intent to impose a system of ‘fixed costs’ across claims of all types and values which will also have an adverse effect upon access to justice for those who have been the victims of police wrongdoing. ‘Fixed costs’ really means ‘Capped costs’ and restricts the amount of legal costs a lawyer can recover from the Defendant even if all the work he has done to win his client’s case is entirely reasonable, necessary and proportionate. Inevitably, lawyers will be less willing to take cases on if they are not going to be fairly recompensed for the significant amount of time and resources they have to put into a legal claim against the police which are claims often fought ‘tooth and nail’ by police forces who have far more resources at their disposal than any single individual who has suffered at their hands. ‘Fixed costs’ will not prevent the police ‘throwing the kitchen sink’ at a clam if they wish to (exacerbating the ‘David v Goliath’ situation) which already faces anybody who wants to bring a claim against what is effectively a State institution. The resources available to a police force (financially and in terms of access to legal representation) are so much greater than those of most members of the public and the police very often adopt antagonistic attitudes towards claims, displaying a mentality of not wanting to admit wrongdoing. They may be prepared to ‘over spend’ in the defence of a claim to purposely ‘stringing it out’ by making the litigation process as difficult as possible so as to exhaust the financial resources (and more importantly the willpower) of the individual Claimant.

Nobody could think that this is right; checks and balances between

a) the rights of individuals without major financial resources, and

b) richer and more powerful individuals or state agencies,

appear to be being systematically dismantled by the government’s ‘reform’ process. Checks and balances established over many centuries during which time our legal system grew to be one of the fairest and most admired in the world. But what now lies ahead?

So we are undoubtedly in the middle of an era of fundamental attacks to our justice system and in particular access to justice, changing fundamental tenets of the age-such as old Common Law of this country and including the right to recover damages for personal injury and to be put financially back in the position you would have been had the wrong against you not been committed in the first place. This situation is unlikely to improve if, as part of the Brexit process, the government abolishes the Human Rights Act (as it has previously threatened to do) stripping a whole layer of additional protections and civil liberties from the citizens of this country.

But the fight for justice will go on. There are obstacles but we can overcome them. The judiciary recently took action to disapply ‘fixed costs’ rules in personal injury cases where a Claimant beats a settlement offer he has previously made. This is certainly a step in the right direction and one which may be echoed by a higher court ruling in regards to QOCS to establish that the protection given to that law does apply to claims against the police even if only very minor injuries were suffered. After all, we do not live in an autocracy and regardless of the government’s agenda, the legal profession, (especially in the persons of the higher judiciary) can fight back to modify the law and establish new precedent to set parties back on a more level playing field.

And personally, I’ve fought against the odds on behalf of my clients before and won, and I believe we can continue to do so despite the obstacles in our path. The determination of the Hillsborough families in their 27 year campaign for justice shows that setbacks and obstacles are what they are, but are not the end.

This year I and my clients have celebrated several noteworthy victories in diverse, challenging and interesting cases:

  • 6,500 awarded to a London man arrested and incarcerated by the police despite voluntarily attending for interview at a police station
  • £35,000 for a man who was asleep in his bed only to wake to find himself under attack and being dry stun tasered by officers who unlawfully had invaded his home
  • £26,000 for a young mother who was falsely arrested on suspicion of sexual abuse of her own 3-year-old daughter as a result of a reckless police investigation
  • £17,500 for a Birmingham City Fan smashed in the head with a police riot shield
  • £13,000 for a young football fan bitten without cause by a police dog
  • £25,000 for a victim of domestic abuse groomed and sexually exploited by a police officer
  • £15,000 plus destruction of his personal data (including DNA sample and fingerprints) of a young man arrested without reasonable suspicion for rape (in my opinion, the police never suspected he was the culprit at all but reprehensibly wanted to use the ‘pressure’ of the arrest to make him provide them with a statement regarding the person they really suspected)
  • £22,500 for a disabled young Black man wrestled to the ground by two police officers after a ‘routine’ traffic stop (in my opinion, a traffic stop that was in the first place without any foundation other than that of ‘driving whilst Black…’)
  • £63,500 for a man who fled to this country to escape persecution at the hands of Robert Mugabe’s tyrannical regime in Zimbabwe, who suffered a severe beating at the hands (and feet) of British police officers after speaking up on behalf of another young man who was being assaulted by bouncers.

I continue to relish the challenge and the fight. I derive immense satisfaction from these victories which always go so far beyond ‘mere’ monetary compensation in what they give back to my clients such as the sense of justice, restored dignity, faith in society, personal satisfaction which they absolutely deserve.

Most of us aspire to do something meaningful with our lives, to serve something greater than them, to have something to look back upon with pride at the end of each and every year. I consider myself immensely privileged and fortunate to represent people who have been mistreated by the police; to be able to fight on their behalf and secure for them the vindication that they deserve and to help them hold the police to account for the greater good of the individual and society, to play my part in making the system fairer.

It goes without saying but deserves to be said at this time of year in particular, that I couldn’t do what I do without the bravery and determination of my clients who have overcome the trauma of their suffering at the hands of the police to come to me in the first place and have the strength of their convictions and the character to see through to the end what can often be a bitter and hard-fought but ultimately rewarding legal battle.

So at this time of year, as ever, I just want to say to all of my clients – past, present & future – that you have my utmost respect and I am proud to be continuing the fight for justice on your behalf into 2017 and beyond.

Posted in News | Tagged ,