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How the Police Can Further Reduce Unlawful Arrests

Recent Government statistics confirm the continuing decline in the number of arrests carried out by Police in England and Wales.  In the year ending March 2015, there were 950,000 arrests carried out by Police, a fall of 7% on the previous year and continuing the downward trend since a peak of 1.5 million arrests in year ending 2007. 

What is the explanation for this decline? Some would argue that the drop off is attributable to the fact that less crime is being committed generally.  Others, like Hampshire Police Federation Chairman John Apter put the drop off down to the reduction in serving Police Officers; “The reduction of numbers clearly shows the consequences of losing so many officers”.  

An alternative explanation is a gradual change in Police culture away from arrest now, investigate later to actively considering alternatives to arrests and in particular, to investigate by way of voluntary interview.  Such alternatives to arrest both spares the suspect the ordeal and distress of incarceration (for example, householders who use reasonable force in self defence against burglars and teachers/school staff facing allegations connected with their employment) and the Police the expense of keeping that individual in Custody (of particular interest in these lean days of austerity) and is of course particularly appropriate when dealing with low level criminality. 

This shift in culture away from seeing the sheer number of arrests made as a sign of success (for example see the Evening Standard’s report “Make more arrests or face punishment Police Officers told” has been encouraged by changes to Code G of PACE (implemented by the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, G and H) Order 2012 (SI 2012 No. 1798) implemented in November 2012. 

Code G contains the following provisions under the section headed ‘Introduction’ 

1.2       The exercise of the power of arrest represents an obvious and significant interference with the Right to Liberty and Security under Article 5 of the European Convention on Human Rights set out in the Human Rights Act 1998. 

1.3       The use of power must be fully justified and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means.  Absence of justification for exercising the power of arrest may lead to challenges should the case proceed to court.  It could also lead to civil claims against police for unlawful arrest and false imprisonment. When the power of arrest is exercised it is essential that it is exercised in a non-discriminatory and proportionate manner which is compatible with the Right to Liberty under Article 5. 

Then the section headed ‘Elements of Arrest under Section 24 PACE’ at paragraph 2.1: 

2.1       A lawful arrest requires two elements: 

A person’s involvement or suspected involvement or attempted involvement in the commission of a criminal offence; 

AND 

Reasonable grounds for believing that the person’s arrest is necessary. 

·         Both elements must be satisfied, and

·         It can never be necessary to arrest a person unless there are reasonable grounds to suspect them of committing an offence. 

2.2       The arrested person must be informed that they have been arrested, even if this fact is obvious, and of the relevant circumstances of the arrest in relation to both the above elements.  The custody officer must be informed of these matters on arrival at the police station…

 Necessity criteria 

2.4       The power of arrest is only exercisable if the constable has reasonable grounds for believing that it is necessary to arrest the person.  The statutory criteria for what may constitute necessity are set out in paragraph 2.9 and it remains an operational decision at the discretion of the constable to decide: 

·                     Which one or more of the necessity criteria (if any) applies to the individual; and

·                     If any of the criteria do apply, whether to arrest, grant street bail after arrest, report for summons or for charging by post, issue a penalty notice or take any other action that is open to the officer…

 2.8       In considering the individual circumstances, the constable must take into account the situation of the victim, the nature of the offence, the circumstances of the suspect and the needs of the investigative process. 

2.9       When it is practicable to tell a person why their arrest is necessary, the constable should outline the facts, information and other circumstances which provide the grounds for believing that their arrest is necessary and which the officer considers satisfy one or more of the statutory criteria in sub-paragraphs (a) to (f), namely: 

(a)    To enable the name of the person in question to be ascertained …. 

(b)   Correspondingly as regards the person’s address …. 

(c)    To prevent the person in question: 

(i)                 Causing physical injury to himself or any other persons…

(ii)               Suffering physical injury ……

(iii)             Causing loss or damage to property ……….

(iv)             Committing an offence against public decency ……..

(v)               Causing an unlawful obstruction of the highway ……… 

(d)   To protect a child or other vulnerable person from the person in question ……. 

(e)    To allow the prompt and effective investigation of the offence or of the conduct of the person in question.

This may arise when it is thought likely that unless the person is arrested and then either taken in custody to the police station or granted ‘street bail’ to attend the station later, further action considered necessary to properly investigate their involvement in the offence would be frustrated, unreasonably delayed or otherwise hindered and therefore be impracticable.  Examples of such actions include:

 (i)                 Interviewing the suspect on occasions when the person’s voluntary attendance is not considered to be a practicable alternative to arrest, because for example: 

·      It is thought unlikely that the person would attend the police station voluntarily to be interviewed.

·      It is necessary to interview the suspect about the outcome of other investigative action for which their arrest is necessary, see (ii) to (v) below

·      Arrest would enable the special warning to be given in accordance with Code C paragraphs 10.10 and 10.11 when the suspect is found:

Ø  In possession of incriminating objects, or at a place where such objects are found;

Ø  At or near the scene of the crime at or about the time it was committed.

·      The person has made false statements and/or presented false evidence;

·      It is thought likely that the person:

Ø  May steal or destroy evidence;

Ø  May collude or make contact with, co-suspects or

Ø  May intimidate or threaten or make contact with, witnesses. 

(ii)               When considering arrest in connection with the investigation of an indictable offence (see Note 6), there is a need: 

·      To enter and search without a search warrant any premises occupied or controlled by the arrested person or where the person was when arrested or immediate before arrest;

·      To prevent the arrested person from having contact with others;

·      To detain the arrested person for more than 24 hours before charge.

 (iii)             When considering arrest in connection with any recordable offence and it is necessary to secure or preserve evidence of that offence by taking fingerprints, footwear impressions or samples from the suspect for evidential comparison or matching with other material relating to that offence, for example, from the crime scene.

 (iv)             When considering arrest in connection with any offence and it is necessary to search, examine or photograph the person to obtain evidence.

 (v)               When considering arrest in connection with an offence to which the statutory Class A drug testing requirements …….. apply, to enable testing when it is thought that drug misuse might have caused or contributed to the offence.

 (f)    To prevent any prosecution for the offence from being hindered by the disappearance of the person in question.

 

By way of illustration of the importance of considering alternating to arrest, and how a failure to use a reasonable alternative can render an arrest unlawful, let me set out the facts of a case I have recently settled.

 Mr G was a 75 year old retired gentleman of exemplary character.  He lives in a bungalow in rural Suffolk and had done so for the previous 8 years.

 At the rear of Mr G’s property is an area of land belonging to the District Council in which pine trees grow.

 Throughout the period that Mr G had lived at his address, he had experienced difficulties with the trees at the rear of his property, specifically the mass shedding of needles, which collected in and around his garden and caused associated problems such as blockage of drains.  Mr G was of the opinion that the mass shedding was attributable to ivy that was allowed to grow on the trees.

 Mr G made a number of complaints spanning several years to the District Council, as regards the problems he was experiencing with the trees, but on each occasion the Council failed to act upon his complaints.

 On or around 1 April 2015, Mr G received an unsolicited visit from a local “odd job man” offering his services.

 Mr G agreed to pay for the male to carry out some work at the rear of his address specifically requesting that the male cut and trim the ivy off the Pine Trees.

 Mr G made it extremely clear to the male that no work should go beyond the cutting of the ivy, so as to protect the integrity of the trees.

 Unbeknown to Mr G, the District Council received information as regards the maintenance work on the trees. 

 On or about the 17 May 2015, Mr G was visited at home by a PCSO who was making enquiries as to the work on the trees.

 Mr G openly accepted that he had paid for work to be carried out on the trees.

 On the morning of the 10 June 2015, 2 Police Officers attended Mr G’s address and arrested him on suspicion of criminal damage.

 As a result of the arrest, a search under Section 32 of the Police and Criminal Evidence Act 1984 was carried out and a number of items received/seized including Mr G’s laptop, mobile phones and chainsaw.

 Mr G who was still in his pyjamas was allowed to change his clothes and was then transported to and detained at Bury St Edmunds Police Station.

 The circumstances of arrest were recorded in the Custody Record as “Detained Person is alleged to have cut some trees down at the rear of his address between 1 April and 8 May 2015, which belong to the District Council”.

 The reason to arrest was said to be “To allow the prompt and effective investigation of the offence or of the conduct of the detained person”.

 The reason for detention was said to be “to obtain evidence by questioning”.

 The grounds for detention were on the basis that there was “insufficient evidence to charge.  Detention necessary to obtain evidence by way of questioning and then to decide on the best means of disposal”.

 Mr G was searched and subjected to a risk assessment and he was then obliged to provide his fingerprints and DNA sample.  Mr G was then taken to a cell.  He was aware of a camera on the ceiling of the cell and a slot in the cell door but no window.   Mr G was particularly upset at being treated like a common criminal.  The stress exacerbated his asthma which was aggravated further because the Police refused to allow him to have the inhaler in his cell and having to ring the bell when he needed it to use it.

 Mr G was subsequently interviewed under caution, whereupon he denied any responsibility for criminal damage.  At the conclusion of the interview, the interviewing officer advised Mr G that the interview was “simply to gain an account from yourself as to what happened”. 

 As a result of an evidential review, a decision that no further action would result was eventually reached and after 8 hours, Mr G was released from custody. 

 Following his return home, he found he was initially unable to sleep and spent the majority of his time thinking about his arrest and the injustice of what had happened.

 Mr G carried out a search on the internet and having established my credentials instructed me to pursue an action on his behalf.

 Whilst it appeared to me that the Police might be able to establish that the Officers had a reasonable suspicion that an arrestable offence had been committed, I could not for the life of me understand how they could argue that there was any necessity to arrest, as opposed – for example – simply inviting Mr G to attend a voluntary interview at the police station.

 I intimated a claim.  True to form, the Police denied liability leaving my client no alternative but to issue Court proceedings.

 Following issue, the Police filed a Defence, again denying liability.

 Notwithstanding this repeated denial, the Police made an offer to settle.  Following negotiations, I settled Mr G’s claim for £10,500.

 So, my own experience, as demonstrated by this case, is that despite the revision of Code G and the statistical evidence of fewer arrests occurring, there still remains ingrained in Police culture a strong tendency to arrest without consideration of other options.  Therefore, it is imperative that Police Officers be trained (or re-trained) to highlight the law as it stands, and perhaps equally important that when mistakes are made, both individual officers and their Force generally learn from their mistakes.  Hopefully, thanks to both less crime being committed generally and increased compliance with Code G (and hence unnecessary arrest being avoided) we will continue to see arrest figures decline in years to come.

Harassed by the Police

Iain Gould solicitor
Iain Gould, solicitor

By Iain Gould, solicitor

According to a joint report just published by Her Majesty’s Inspectorate of Constabulary (HMIC) and Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI), people who have suffered harassment or stalking are often being let down by the Police and Crown Prosecution Service.

The publication of the report is timely in that I have just settled a claim for a young woman who suffered harassment by a Police Officer whom she had turned to for protection.

In or around April 2011, my client who I will call Kate began working as the personal assistant to the owner of an escort agency.

During the course of her work at the agency, Kate became aware that some of those working for the agency were underage. Further, Kate became aware that the owner of the agency was committing sexual offences against a number of women and girls who worked for him, behaving in a threatening manner towards them and otherwise exploiting them. Kate also discovered that the owner of the agency was involved in forging documents for some of the women and girls who worked for him.

On 6 January 2012,  Kate bravely reported matters to Merseyside Police notwithstanding that she was scared of the owner of the agency and of the potential consequences i.e. the retribution he might take against her.

The information that Kate provided to the police led to an investigation into the owner of the agency. DS David Stubbs of the Merseyside Police Public Protection Unit (“PPU”) was allocated to the investigation.

Thereafter, DS Stubbs visited Kate at home. During the course of this visit, Kate tried to provide DS Stubbs with relevant information but DS Stubbs asked Kate a number of personal questions instead. Kate felt that DS Stubbs was behaving unprofessionally towards her and did not feel as though she was being taken seriously. Kate’s laptop and personal mobile telephone were seized from her, along with a laptop and two mobile telephones that belonged to the owner of the agency. Kate later gave a video recorded interview in relation to the criminal activities of the owner of the agency.

Thereafter, DS Stubbs visited Kate on a number of occasions, made a number of telephone calls to her and sent her numerous text messages from both his work mobile and his personal telephone. In total, DS Stubbs sent 264 texts to Kate including between 14 February 2012 and 29 February 2012, 73 texts without reply. This included, (for example) between 23:23 on 15 February 2012 and 00:37 on 16 February 2012, 15 texts sent by the Officer without reply and at a time when he was actually on annual leave. The manner in which DS Stubbs would communicate with and treat Kate was personal and/or sexual in content and nature.

For example, in or around February 2012, DS Stubbs sent Kate text messages in which he said that he was divorced and had children. DS Stubbs also said that he would like to take his dog for a walk with Kate.

Subsequently, DS Stubbs sent Kate a text message in which he said that he would like to take her to Cornwall and see her in a bikini. DS Stubbs said that he realised that he “should not be doing this” but that he could not help himself.

In or around March 2012, DS Stubbs sent Kate a message at or around 01:00 with words to the effect of:

I shouldn’t be saying this to you but you’re gorgeous, you’re a beautiful person inside and out and should be proud of what you have done.

On another occasion, DS Stubbs sent Kate a text message, saying words to the effect of:

…hope someone is spoiling you rotten like I would be.

Increasingly disturbed by DS Stubb’s conduct, Kate told DC X, another female officer involved in the investigation into the escort agency, that she would prefer not to have any further contact with Stubbs. Thereafter, the contact from DS Stubbs decreased. However, Kate would still receive the occasional text message from DS Stubbs, such as:

Hello trouble, how’s you 😉

The last time DS Stubbs contacted Kate was on or around 20 August 2012.

Due to DS Stubbs’ conduct, throughout the course of the investigation into and prosecution of the owner of the agency, Kate felt as though the police were using her and testing her. In or around January 2013, after having attended court one day, Kate had a conversation with DC X, whilst being given a lift home. Kate informed DC X of DS Stubbs’ conduct towards her. DC X urged Kate to pursue a complaint about DS Stubbs and advised her that someone would be in touch with her. DC X informed Kate that there had been other complaints about DS Stubbs’ conduct.

Kate did subsequently report matters and attended a video interview where she gave a detailed account of DS Stubbs’ conduct towards her. Around the same time, the owner of the agency was convicted of a number of offences. Kate’s initial report to the police had been central to those convictions being obtained.

Following Kate’s video interview, she received no follow-up or information from the police as to what was being done in respect of the information she had provided on DS Stubbs’ conduct. Consequently, Kate once again began to feel used by the police. After repeated enquiries, Kate was eventually informed that the Crown Prosecution Service (“CPS”) had decided that there was insufficient evidence to pursue a criminal case against DS Stubbs but that there would be an internal investigation into DS Stubbs’ conduct instead and that he had been suspended from his duties.

That internal investigation ultimately culminated in a full disciplinary hearing in September 2015. Despite DS Stubbs having used his work mobile telephone to send text messages to Kate, the content of the personal and/or sexual text messages could not be retrieved and so were not available to the disciplinary panel.

The Disciplinary panel found that even though the specific content of the texts could not be proven, they were satisfied that the volume and timing  of the messages was way above what could reasonably be expected from an Officer discharging his professional duty. DS Stubbs could offer no reasonable explanation for this, claiming they were for work purposes but offering no record, rationale or evidence as to what this Police purpose was.

Ultimately, DS Stubbs was dismissed for gross misconduct.

Whilst Kate was pleased with the outcome of the disciplinary proceedings, and comforted by the thought that DS Stubbs would not be able to exploit or harass other vulnerable young women, she was dismayed and deeply disappointed at the extent to which she had been ‘shut out’ of the investigation process, being kept entirely in the dark for long periods of time as to what was going on. For example, between March 2013 – May 2014, for over a year, Kate received no contact from Merseyside Police and when she did finally manage to get through to someone, she was coldly and uncaringly informed that for the purpose of the investigation into DS Stubbs she had been classified as a ‘witness’ not a ‘victim’ and hence had no right to expect to be kept updated, and no business contacting the force.

The Police also used a bureaucratic excuse not to formally record Kate’s initial report about DS Stubbs as a public complaint, further allowing them to keep her shut out of the process and thereby denying her entitlement to receive a formal written response/ apology for what had occurred.

DS Stubbs’ dismissal was reported upon by local and national press.

As part of a BBC 5 Live investigation, Kate was interviewed as to her experiences. Here is her account:

During the disciplinary process Kate contacted me for advice in relation to her situation.

DS Stubbs’ behaviour in my opinion clearly constituted harassment contrary to the Protection from Harassment Act 1997. Section 1 of this statutory tort provides that:

1. A person must not pursue a course of conduct –

a. Which amounts to harassment of another; and

b. Which he knows or ought to know amounts to harassment of the other.

  1. For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information, would think the course of conduct amounted to harassment of the other.

‘Harassment’ is not precisely defined in the Act, although it states that references to harassing a person ‘include alarming the person or causing the person distress’.

As well as showing that the behaviour complained of amounts to harassment, a Claimant must show that the Defendant knew or ought to have know that it amounted to harassment. The test of whether the harasser should have perceived his or her conduct in that way is an objective, rather than a subjective one. So, the Claimant need not show that the harasser appreciated the nature of his or her behaviour, but rather that any other reasonable person would have done so.

The Claimant also has to show that there was a ‘course of conduct’. This must involve conduct on at least two occasions.

A civil claim for damages may be brought in relation to conduct that amounts to harassment as defined by the Act. Damages may be awarded for, among other things, anxiety caused by harassment and for any financial losses resulting from it.

By reason of DS Stubbs’ conduct, Kate suffered anxiety, humiliation and distress; specifically DS Stubbs’ conduct towards Kate caused her to feel helpless, frightened, confused, suspicious and paranoid. At times Kate felt that DS Stubbs was questioning her credibility as a witness. DS Stubbs’ suggestive personal comments to her caused Kate to feel dirty, used, humiliated and embarrassed.

As a result Kate lost confidence and began to hate herself. She developed symptoms of severe anxiety and began to have panic attacks. Kate stopped socialising and disliked being in the company of others. She felt nervous and vulnerable, without any guidance or victim support.

Kate even had thoughts of self-harm and began to have involuntary movements at night, which resulted in her causing injury to herself. She suffered sleep disturbance, including waking during the night and vivid dreams and nightmares of acts of deliberate self-harm.

Kate lost trust in others, especially the Police. Contact with male Police Officers would cause Kate to experience severe anxiety, which could develop into panic attacks, and she became reluctant to speak to the Police.

Following DS Stubbs’ dismissal for gross misconduct, Kate began to fear that he would take revenge, which caused her to feel even more anxious and distressed, particularly when alone at night.

In light of DS Stubbs’ conduct, I was satisfied that Kate had a viable claim. I intimated a claim on her behalf against Merseyside Police and issued protective Court proceedings.

Following investigation, Merseyside Police denied liability (as a matter of course?) and yet indicated that this was a claim that they wanted to (quite rightly) settle. Police Forces are very often reluctant to admit liability, even when in reality they know that they are liable for the wrongdoing of their officers.

In November 2015, as part of her legal case for compensation against the Police I referred Kate to a Psychiatrist, who recommended that Kate undergo a course of Cognitive Behavioural Therapy, after which her condition could be further reviewed. Kate went on to have 18 sessions of CBT.

Following further review, it was concluded that Kate had suffered an Anxiety Disorder, which was caused at least, in part, by DS Stubbs’ conduct, which we might rightly call the selfish and callous exploitation of an already vulnerable woman.

At this point, I was able to assess the value of Kate’s claim and Merseyside Police agreed to a Joint Settlement Meeting. After protracted negotiations, Merseyside Police agreed to pay Kate £25,000 compensation plus costs.

The HMIC report, therefore, is welcomed in that it highlights serious cases of Police neglecting the victims of harassment and stalking (whether in person, or increasingly in the ‘digital’ age, on-line) and a culture of, frankly, not treating harassment as a ‘proper’, indeed very threatening and sinister, crime.

What I would also call upon the Police to recognise and tackle as an equal priority is the danger posed to clients such as Kate (and sadly I know from personal experience that her case is far from rare) who are being exploited and harassed by Police Officers themselves, who are abusing the special trust that has been placed in them and seeking, frankly, to take sexual advantage of vulnerable victims of crime. This in itself was highlighted in yet another report published in December 2016 by HMIC reported that abuse of authority for sexual gain was the “most serious” form of corruption facing Police in England and Wales.

One additional factor of concern, highlighted by this case, is the lack of support Kate received from Merseyside Police after making her complaint about DS Stubbs. Whilst her evidence was crucial in helping the force to weed out and remove a rogue, indeed predatory, officer, the Force seemed to have no concern for Kate herself during the long drawn out process. Kate was apparently no longer needed once the Force had her evidence, and the disdain with which they then treated her, apparently failing to recognise her absolutely legitimate interest in the investigation (in which she was the victim and had initiated the complaint) and simply to show her some support and compassion rather than simply ignoring her, added greatly to her emotional anxiety and depression during this very stressful time in her life.

The Force eventually did the right thing in regards to DS Stubbs, but failed to do the right thing by Kate – even to the extent of treating her as an inconvenience or even enemy when she tried to get information about what had happened to her complaint.

Sadly, Kate is not the first victim of crime subsequently subjected to exploitative behaviour by a male Police Officer, and nor do I believe will she be the last; but we can at least hope that in light of the recent reports, Police Forces as institutions will move more swiftly to identify and remove such officers and to treat their victims with proper respect and support.

 

The Price of Justice

I was pleased to be given the opportunity to speak on Channel 5 last week regarding the case of my client Ivan Martin in the documentary series “Where there’s blame, there’s a claim”.

I think it was understandable that the programme concentrated on the level of damages awarded to Ivan, and the other victims of serious personal injury claims (including the horrific Alton Towers roller coaster crash) who were featured in the episode, as obviously there is widespread interest in the amount of money people can recover in such cases, but I would like to take this opportunity to stress that pounds & pence are far from being the be- all and end- all in these claims, particularly in actions against the police which I handle, as opposed to negligently caused accidents. The victims of police misconduct have very often suffered not as a result of an unintended ‘mistake’ (no matter how catastrophic) but rather quite deliberate conduct – such as the misuse of police powers of arrest or a deliberate assault (in Ivan’s case, being shot in the back with a taser gun in his own home) and have then seen this wrong against them compounded by the officers involved – often as a team or institutionally – trying to deny my client justice by telling quite deliberate lies about their conduct,  lies which if believed might result in a criminal conviction and even incarceration – such as the threat Ivan faced when, after being shot by the Officers who came to his home, he was then prosecuted for allegedly assaulting them!

The victims of car crashes or other accidents will first go to hospital to receive treatment, before commencing their fight for compensation, which may or may not be straight forward. My clients will frequently first – after their visit to hospital for injuries inflicted upon them by the Police – have to face prosecution in the Magistrates or even Crown Court on false charges of resisting arrest, obstructing or even assaulting a constable. Only after they have dealt with months of stress and worry, and have cleared their names in the Court, can they bring their own case against the Police in the civil courts.

My clients also often have to go through a lengthy and demoralising process of pursuing a complaint with the relevant Police Force’s professional standards department, resulting most commonly in what feels to many of them distinctly like a ‘whitewash’ of a report – exonerating the investigating officer’s colleagues, and turning blame back onto my client – only to see the same Police Force admit liability/ speedily settle the claim once civil proceedings are commenced, begging the question of the honesty and integrity of the original complaint investigation. Very rare indeed is the apology any Force will offer for the misconduct of its Officers no matter how heinous.

All of this is why I want to stress that whilst compensation in terms of the monetary award of damages is important, the sense of justice being done is always my client’s priority. I think this is in danger of being lost sometimes in media coverage of civil claims which focus only on the amount of “compo”. Indeed, the very title of the Channel 5 series runs the risk of belittling the stories of the deserving people portrayed within it. Yes, we live in a capitalist society where “money makes the world go round” – this is true about everything – jobs, politics, science and medicine – but it does not mean that we only work for money. There is nothing indecent or opportunistic in pursuing a compensation claim after you have been injured or wronged any more than there is in expecting to be paid for the job you do, but in both cases it is about far more than that. We work because we can derive great pride and personal satisfaction from our achievements, irrespective of how much we are paid for them; likewise my clients pursue claims not with pound signs in their eyes, to “grab the money” but for those incalculable but absolutely important things which would otherwise be denied to them – vindication in the eyes of society; self- pride and self- worth; being able to hold to account those invested with special powers over the rest of us, which is absolutely crucial in any liberal democracy; the sense of a wrong being righted and justice being done by the Courts, without which a civil society cannot function, and would run the risk of breaking down into anarchy; to get a fair and proper hearing of their legitimate grievances; to be believed.

This is why I have clients who are prepared to risk exposure to substantial costs in order to pursue a claim where the damages might be only a fraction of that amount – because they are not looking at this ‘claim’ in economic terms but as a matter of principle; they want the feeling of justice won, not money.

This is why another of my clients said these words to me at the conclusion of a very long running and hard- fought case, resulting in a successful outcome at trial after years of stressful litigation –

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

And this is why Ivan Martin, in his Channel 5 interview wanted to make clear what his priority was in pursuing his claim. Getting that sense of fair play; of those to blame being punished, not a claim rewarded. I will leave the last words to him –

If I was in a job and I done something wrong, there would be consequences for me, so why should they get away with it? I know the rules, they know the regulations, we both should be singing off the same hymn sheet. They do something wrong, consequences for them, end of.

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.

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.

 

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”?

 

 

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.