Blog

Police Complaints : A System Which Needs Fixing

Back in October 2017, The College of Policing issued new guidance specifically to those who preside over Police Misconduct Proceedings.  This was to ensure consistent and proportionate determinations by reference to relevant criteria which included the officer’s record, culpability for the misconduct, the harm caused, aggravating factors and mitigation.

The guidance is, in my opinion, clear and comprehensive and the decision to publish it very commendable.  But I question why the guidance is said to be issued only to those chairing misconduct proceedings, i.e. Senior and Chief Officers and independent legally qualified Chairs and not to all those involved in the entire misconduct investigation (from start to finish) and in particular, those involved in determining the level of misconduct once an allegation has been investigated (i.e. ‘the Appropriate Authority’).

What do I mean?

Misconduct for Police Officers will involve a breach of the Standards of Professional Behaviour which are;

Honesty and Integrity 

Police officers are honest, act with integrity and do not compromise or abuse their position. 

Authority, Respect and Courtesy 

Police officers act with self-control and tolerance, treating members of the public and colleagues with respect and courtesy.

Police officers do not abuse their powers or authority and respect the rights of all

individuals. 

Equality and Diversity 

Police officers act with fairness and impartiality. They do not discriminate unlawfully or unfairly.

 Use of Force

 Police officers only use force to the extent that it is necessary, proportionate and

reasonable in all the circumstances.

Orders and Instructions

Police officers only give and carry out lawful orders and instructions.

Police officers abide by police regulations, force policies and lawful orders.

 Duties and Responsibilities

 Police officers are diligent in the exercise of their duties and responsibilities.

 Confidentiality

 Police officers treat information with respect and access or disclose it only in the proper course of police duties.

 Fitness for Duty

 Police officers when on duty or presenting themselves for duty are fit to carry out their duties and responsibilities.

 Discreditable Conduct

 Police officers behave in a manner which does not discredit the police service or

undermine public confidence, whether on or off duty.

 Challenging and Reporting Improper Conduct

 Police officers report, challenge or take action against the conduct of colleagues which has fallen below the standards of professional behaviour expected.

 Each case of wrongdoing is categorised as either misconduct or gross misconduct.  Misconduct is a breach of the standards of professional behaviour whilst gross misconduct is a breach of the standards of professional behaviour so serious that dismissal is justified.

An allegation of misconduct can lead to an internal Misconduct Meeting, whereas an allegation of gross misconduct leads to a Misconduct Hearing which is usually held in public.

An appearance at a Misconduct Hearing can lead to the officer being sacked, whilst a Misconduct Meeting’s maximum penalty is a final written warning.   The distinction is not only pertinent as regards outcome but also public scrutiny; only Misconduct Hearings (with some exceptions) are held in public.

I have long considered Professional Standard Departments to be too protective of those Officers accused of misconduct and their efforts to keep complaints ‘in house’ suspicious.  Yes, sometimes there is a right of appeal to the ‘independent’ IOPC that is exercised and yes, sometimes the IOPC will intervene and reclassify misconduct as gross misconduct and direct consideration by a Misconduct Hearing but in my experience this rarely happens and too often, allegations of misconduct which are clearly serious and ‘gross’ are dealt with, or ‘covered up’ in house.  Take for example the case of PC Norman, which you can read about here.

One case that does buck the trend is that involving a client I am currently representing.

Back in April 2017, my client was at home when she was visited by an Enforcement Officer in respect of an outstanding/unsatisfied debt.

My client went outside to meet the Enforcement Officer and noticed that her vehicle had been fixed with a clamp and a seizure notice.

My client also noted another vehicle, parked in front of her own, which she believed, at that time, to belong to the Enforcement Officer.

My client did not have the financial resources to immediately settle the debt and was content to allow seizure of her vehicle.

At or about this time, my client’s son and cousin also arrived at the scene.

As my client believed that her vehicle was to be seized imminently, she began to remove personal items from the car and transfer these to her home address.

Suddenly and unexpectedly, the Enforcement Officer alleged that a parcel had been removed from his vehicle and that damage had been caused to his vehicle.

My client advised the Enforcement Officer she had no knowledge whatsoever of either issue.

The Enforcement Officer indicated his intentions to contact the Police and my client witnessed a phone call taking place.

My client suggested to her son and cousin that they should leave the area, in order that they did not become embroiled with the Enforcement Officer’s spurious allegations.

My client’s advice was heeded and the two males walked off.

My client overheard the Enforcement Officer providing a description to the Police of her son and cousin and their direction of travel.

My client collected the final few personal items from her car and went inside.

A few minutes later, a Police Sergeant arrived.  He was aggressive from the outset.  He advised my client that he was looking for an unspecified parcel, wished to enter her home to look for it and if she didn’t open her front door voluntarily, he would force entry.

By this stage, a second uniformed officer arrived at the scene.

The Officer continued to insist that he be allowed entry, otherwise he would force entry.

My client refused to allow the Officers entry and so the Officers attempted to force entry to my client’s home.

Concerned that the Sergeant would cause damage, my client agreed to allow the Officers access and opened her front door. My client was however anxious to ensure that the Enforcement Officer did not gain access and so locked the door behind her.

The Sergeant demanded that my client unlock the door and she reluctantly complied.  The Sergeant then demanded that my client hand over her house keys. My client refused.

Both Officers then moved towards my client, who fell onto her sofa. The  Officers then attempted to physically remove the keys from my client, which my client resisted.

During the struggle, my client received a number of heavy blows (which she believes were punches from one or both officers) to her head.

To her horror, my client at one stage witnessed the Sergeant wielding a  CS gas  incapacitant, which he threatened to deploy against her.

Eventually, both officers managed to overpower my client and seize her house keys.  My client was then restrained in handcuffs and advised that she was under arrest for “breach of the peace”.

The Sergeant proceeded to open the front door and invited the Enforcement Officer to enter the house and recover whatever he “wanted”.  To be clear, the Enforcement Officer had no right to enter in the circumstances, nor did the Sergeant have power to let him enter.  This was a gross disturbance of the privacy of my clients’ home, a trespass invited and encouraged by the Officer who had attacked her.

Despite the motivations of the Sergeant being expressed as ‘looking for a parcel’, no such search was carried out.

The Enforcement Officer then carried out a search of the address and concluded that there were no items of sufficient value to satisfy the remainder of the debt and left.

My client was then released from her handcuffs.

The Police Officers and the Enforcement Officer then drove away from the scene.

The next day my client attended her local Police Station to report the conduct of the Officers and was subsequently contacted by Professional Standards who recorded the complaint and commenced an investigation.

Misconduct or gross misconduct?

Upon initial assessment, an Officer considered the Sergeant’s alleged actions to constitute gross misconduct, specifically that 

“it is alleged that the Sergeant has abused his authority and had gained unlawful entry to the complainant’s property. Whilst within the property has used force on the complainant when arresting for a breach of the peace, in circumstances that may make the arrest unlawful.  The complainant states that she has been hit several times and threatened with CS by the Sergeant.  Taking into account the chain of events, I consider the totality of the conduct alleged if proven or admitted to be a breach of the standards of professional behaviour so serious that dismissal would be justified.  Therefore on the information known at this time I assess this as Gross Misconduct which could proceed to a Misconduct Hearing.  The use of force could also amount to a criminal assault”. 

The complaint was then investigated and the evidence was reviewed and assessed by the Force’s Appropriate Authority, a Detective Superintendent who clearly identified the failings of both Officers who had entered my clients’ home and which to a large extent were admitted.  Both Officers accepted in interview that they did not have any lawful powers to enter and/or search my client’s property.  As such any force used upon my client whilst in her home would also be unreasonable and excessive.

However, the  Appropriate Authority took a somewhat different view as to the appropriate outcome than had the initial reviewing Officer.  She considered the case suitable for a referral to a Misconduct Meeting only.  Dismissal, in her view, “could not be justified” and “rehabilitation through the sanctions available at a misconduct meeting” was deemed appropriate.

With my help, my client appealed this decision to the IOPC.  We argued that the Sergeant’s behaviour clearly constituted gross misconduct and that determination of the outcome by a Misconduct Hearing was appropriate.

The IOPC, on review, agreed with us and found as follows;

Culpability

The Sergeant was a Senior Officer with 15 years’ experience as a Police Officer.

It is entirely unacceptable for Police Officers who are responsible for enforcing the law, to break the law themselves, the seriousness of the offence must be considered.  In this case ……, both Officers’ actions were unlawful in forcing entry, in arresting and in their use of force.  Whilst the Officers sought to explain their actions, the fact remains that they did not have any police powers to take the actions that they did.

 Many people come into contact with the Police when they are at a particularly difficult or distressing point in their lives and they are entitled to be treated professionally.  Even though the Police were called by the Enforcement Officer as a result of his car being damaged and a package being stolen from his car, the complainant was in a vulnerable situation, in terms of her social circumstance, she was experiencing financial difficulties and dealing with a distressing situation with a bailiff.  The Sergeant paid no regard to this and concentrated immediately on assisting the bailiff and in gaining entry into the property and not in investigating properly the allegation of crime by the Enforcement Officer.

Harm

The complainant was [wrongfully arrested and caused physical injuries] as a result of the use of force by both Officers.

Mitigation 

In interview, the Sergeant stated he was direct, possibly too direct and abrupt in his approach to the Complainant but denied being aggressive.  The evidence suggested otherwise.  When interviewed, the Sergeant had the opportunity to reflect upon and pass comment on his behaviour and accept responsibility for his actions.  He did not, particularly given he had no powers to do any of the actions taken by him. The Sergeant failed to recognise how his behaviour had had an impact on the Complainant.

In short, the IOPC found that in light of these aggravating factors in terms of the culpability and harm caused, specifically the abuse of trust, my client’s vulnerability and cumulatively, the multiple allegations and breaches of standards of behaviour, this was clearly a serious case that warranted referral to a Police Misconduct Hearing and as such the Force in question was directed to hold a Misconduct Hearing. Months later, the Misconduct Hearing took place, at the conclusion of which the Sergeant was dismissed for gross misuse of his Police powers.

However, the Sergeant appealed to the Police Appeals Tribunal (PAT) arguing that his dismissal was ‘unsafe’ because of an impression of actual or apparent bias on the part of the Misconduct Hearing Panel (another story, another blog).  The PAT agreed and accordingly a second Misconduct Hearing was convened.

Following that second hearing, it was decided once again that the Sergeant should be dismissed.  The new decision, of course, gave the Sergeant a fresh right of appeal and yes, he lodged a further appeal.  He  now has a new representative and a new angle; the sanction imposed (i.e. dismissal),  he argues, was too harsh and should be replaced with a lesser sanction.

Part of the Sergeant’s new appeal relates to the conduct of the Appropriate Authority, specifically her initial decision that his case was not gross misconduct.  Obviously, I feel that initial decision was wrong (as did the IOPC) but it is concerning to me that the Appropriate Authority’s apparent inexperience and lack of training led her to make that incorrect decision, giving the Sergeant a ‘lifeline’ in this case that I do not think he deserves. Perhaps if the AA had had better grounding in the COP Guidance then she would not have made that incorrect decision in the first place.

I remain very optimistic that the Sergeant’s latest appeal – notwithstanding the fact that Police Officers committing acts of  misconduct often seem to have ‘more lives than a cat’ – will be rejected and his dismissal confirmed.  It is the only appropriate sanction for his gross abuse of power.  What is concerning, however, is that without my assistance, leading to the intervention of the IOPC, the Appropriate Authority would have classed this case as “simple” misconduct only (not gross), leading to the Sergeant avoiding the appropriate sanction (dismissal) and being given a mere ‘slap on the wrist’ by comparison.

Sadly, this is yet another example of why the Police cannot yet be trusted to ‘police themselves’ when it comes to complaint investigations, and why the College of Police Guidance should be inculcated at all levels of the decision making chain – from the Officers initially reviewing the complaint, to the Appropriate Authority and upwards – or else it will be pointless, as case of gross misconduct may never come before the Hearing Panels to whom the Guidance is currently directed, allowing rogue Officers such as the Sergeant in this case, to escape justice.  A more wider dissemination of the Guidance would, in my opinion, help to ensure a more healthy, unbiased and effective culture in the Police complaints system.

Police Sexual Abuse – The Wolves in Sheep’s Clothing

A hot topic for Police forces throughout England & Wales of late has been identifying and dismissing officers who have sought to exploit their position for sexual gain. The issue has been highlighted by various agencies charged with holding the Police to account including the IOPC and Her Majesty’s Inspectorate of Constabulary .

In my experience, Anti-corruption units & Professional Standards Departments have finally begun to treat the issue seriously. Often, the Police will receive a report of inappropriate behaviour by an officer that leads to an investigation which establishes that the first complaint is just the tip of the iceberg.

In 2017, Yvonne called me and ask that I take on her case.  She had been contacted by the Anti Corruption Unit of her local force. They were investigating an officer, PC A, for Misconduct.

A vulnerable woman had contacted the force & disclosed that PC A, who had attended upon her regarding a domestic situation, was in contact with her on a social basis and she was considering forming a relationship with him.

PC A’s personal telephone data  was obtained for the previous 12 months which showed contact with 4 females whom PC A had come into contact with during the execution of his duties as a Police Officer and with whom PC A had sought to establish or had established a relationship.  One of these women was my client, Yvonne.

I have written about Yvonne’s story previously (‘How Police Guidance Fails Sexual Abuse Victims’).  In essence, she was a long-term victim of domestic violence,  now groomed by PC A who had been assigned to her case and then encouraged to enter into a sexual relationship with him.

But what of the other women?

The second woman identified, Joanne who was a recent divorcee and single mother, had been involved in a minor road traffic accident. PC A attended. He recorded that her tyres were bald & that she had no valid MOT but he failed to instigate a criminal prosecution. Instead, he called her later from his personal mobile phone and explained that she wouldn’t get any points because he had “sorted it out”. He subsequently made further calls and sent text messages attempting to establish a relationship. Joanne wasn’t interested and  got her brother to call PC A and pretend he was her boyfriend.

The third woman identified, Kelly, had called the Police to report her estranged husband for emotional abuse. PC A attended upon her. He advised that no criminal case was made out, but that he would keep in contact with her in case there were any further developments. He used his personal number to contact her and once again tried to establish a relationship. Ultimately, Kelly  was confident enough to advise PC A that she wasn’t interested & contact tailed off.

The fourth woman, Anne, was another recent divorcee and single mother. Her estranged husband reported her for the theft of a bike and PC A attended upon her. The allegation was groundless but once again PC A  came up with an excuse to contact her using his mobile phone with a view to establishing a relationship.  Once again, Anne was eventually strong enough to advise PC A that she did not want a relationship and once again contact ended.

Unsurprisingly, the investigators established from a review of his phone records that PC A was not in the habit of providing his personal mobile number to members of the public who were male or who were female and in a stable relationship. He was cynically targeting the most vulnerable members of society, the very people most in need of Police protection, for his own sexual gratification. We can rightly describe his behaviour as predatory.

Whilst there may be a distinction between sexual predators, who specifically seek employment as Police Officers with the intention of gaining access to vulnerable women and children – the real ‘wolves in sheep’s clothing’ – on the one hand, and those who may commence their Police careers with honest intentions but who through  some default of character or temperament, succumb to the temptations and corruptions of power and opportunity, there is no doubt that all men who seek to exploit their station in the Police for sexual gratification must be rooted out and their victims given all available help and support.

Police Complaint system overhaul 2020

I presently represent a young black man. Back in 2012 when he was just 21 years old, he was  in the park when he was targeted by a Police Officer for a stop and search. My client has always believed that the only ‘grounds’ for the search was the colour of his skin.

During this encounter, he was subjected to an aggressive assault by the officer, who used a choke-hold around his neck, causing my client to fear he might die.  He was then taken into Police custody where he was further subjected to the indignity of a strip-search.  The search was, of course, negative; my client was entirely innocent and had been doing nothing more in the park that day than walking his dog and eating a sandwich.

The Officer falsely maintained that he had suspected my client to have been a drug dealer, but during the course of a subsequent misconduct investigation it came to light that the Officer’s superior had concerns about the Officer’s pattern of conducting stop-searches on individuals during his lunch-hour, apparently in order to justify him putting his feet up for the rest of the day.

My client was, it seems the Officer’s latest victim in this regard, being subjected to a totally unnecessary level of force and humiliation.

My client immediately pursued an official complaint against the Officer, which to his increasing despair dragged on for nearly 6 years before resulting in the complete exoneration of the Officer at a Police misconduct meeting.

Undeterred, my client commenced Court proceedings against the Police  for false imprisonment and assault and battery.

The Police filed a robust defence to the claim disputing my client’s account of events. Then three months before the scheduled trial, out of the blue, the Defendant Force admitted liability – though without any apology even after all this time, and making it clear that from their point of view they were admitting liability only ‘on a technicality’.

The case is now awaiting an Assessment of Damages hearing.

In addition to basic damages for pain, suffering and loss of liberty, my client claims aggravated and exemplary damages.

  • Aggravated damages

Aggravated damages are awarded at the Court’s discretion in addition to basic damages in exceptional cases where:

             The Police have acted to aggravate the Claimant’s basic loss by causing injury to feelings, for example by insulting, humiliating, degrading, distressing and/or outraging the individual; and

             It could result in the Claimant not receiving sufficient compensation for the injuries suffered if the award was restricted to a basic damages only.

Accordingly, aggravated damages are usually awarded in cases involving very serious misconduct/ misbehaviour on the part of the Police (whether individually in the form of the Officer committing the wrongful behaviour in the first place, or institutionally in the way the Police as an organisation have responded to the person’s claim/ complaint).

The Court has given guidelines on the circumstances which might justify an award of aggravated damages including:

  1. humiliating circumstances; or
  2. any conduct of those responsible in the incident which shows they have behaved in a high-handed, insulting, malicious or oppressive manner.

Aggravating features can also include the way litigation and trial  are conducted.

  • Exemplary damages

An award of exemplary damages is even more exceptional than an award of aggravated damages, as the object of exemplary damages is to punish the Police rather than to compensate the individual.

The principle behind other types of damages (basic and aggravated) is to ‘make up’ to the Claimant for the wrong that has been done to him, and to, insofar as possible, put him back in the position he would have been in were it not for the wrongdoing. Exemplary damages go beyond that, in being designed to punish the Police, almost in the way of a ‘fine’ which they must pay (to the Claimant) on top of the other damages.

Exemplary damages can only be awarded if the Police’s wrongdoing constituted oppressive, arbitrary and/or unconstitutional action. They are designed to have a ‘deterrent’ effect to prevent such behaviour occurring again in the future.

There are, in my opinion, numerous reasons as to why aggravated and exemplary damages should be awarded in my present client’s case, but in particular because of how badly his complaint was investigated and handled, specifically:

  • There was an abject failure by the Defendant’s Professional Standards Department to uphold my client’s complaints, despite clear evidence supporting what he said.
  • My client had to repeatedly appeal to the then Police watchdog, the  IPCC.
  • The Defendant force has failed and continues to fail to provide any or any proper explanation to my client and/or to take full responsibility for the actions of its Officer.
  • The Defendant force took no action against the Officer following a misconduct meeting.
  • The complaints process lasted six years and concluded with no action.

Tomorrow, changes to the Police Complaint system come into effect which will, according to the Home Office, “shake up” how complaints against the police are handled. The changes will (they say) ensure that complaints are dealt with “quickly, effectively and proportionately, not just for the benefit of the public but also for the police”.  As well as simplifying the complaints system, it is said that the changes mean Police and Crime Commissioners will have a greater role to increase independence and improve complaints handling.

Policing and Crime Minister Kit Malthouse has said that when Police Forces fall short of their professional standards:

“it is important to have a system that can quickly establish what has gone wrong, hold officers to account where necessary and ensure lessons are learned. These reforms will deliver this and ensure the public can maintain confidence in the integrity of our world-class police.”

The Home Office add that:

“the reforms will also deliver a more efficient system for dealing with police misconduct, making the investigation processes simpler and therefore quicker, including a requirement to provide an explanation where investigations take longer than 12 months and importantly, the reforms aim to make the discipline system more proportionate and encourage a much greater emphasis on learning from mistakes.”

The Home Office maintains that it has worked closely with various bodies to develop a comprehensive package of improvements. These include:

  • simplifying the complaints system, making it easier to navigate and putting a greater emphasis on handling complaints in a reasonable and proportionate manner. An enhanced role for Police and Crime Commissioners will strengthen independence.
  • further measures to increase the IOPC’s effectiveness and independence in investigating all serious and sensitive matters involving the police
  • focusing the formal discipline system on breaches of professional standards that would result in formal disciplinary action, enabling line managers to focus on improving individual learning and behaviours in response to lower level conduct matters – based on a new Reflective Practice Review Process
  • there are new provisions to improve the efficiency and transparency of misconduct investigations
  • increasing the transparency of appeals against misconduct findings by replacing the current retired police officer as a member of the panel with an independent layperson and introducing new provisions to improve the timeliness and efficiency of proceedings.

Whilst certainly I welcome some of these proposals – specifically those geared towards greater transparency in proceedings, and increasing the independence of the misconduct panels, as well as beefing up the IOPC – long experience has taught me to be cautious about how much real change we will see as opposed to mere ‘window dressing’.

I am also highly suspicious of such phrases as “simplicity and proportionality” which could be used by Police Forces to minimise investigations of certain complaints, or even dispense with them all together, under the guise of “proportionality”.

Proportionality, i.e attaching a theoretical price tag to everything, can sometimes come at the expense of important matters of principle and is, in my opinion, often the enemy of justice and the last refuge of the scoundrel. Proportionality is, after all, a vague and subjective concept which here will be a tool in the hands of the Police, not the Complainant. What is very important to an individual who has suffered wrong at the hands of a Police Force, may be something arbitrarily deemed “disproportionate” to investigate by the Police themselves, for self-serving ends.

In the meantime, I’m not holding my breath in the hope that the new reforms will herald a sea-change in the way the Police conduct complaints, I will continue to pursue meritorious claims such as that of my present client, hoping to achieve a significant result in terms of an exemplary damages award which might go a longer way to encouraging the Police to treat complaints more fairly and independently, than all the pious words of a government report.

Are the Police putting pride before the public purse?

What price an admission of liability in a claim for wrongful arrest?

Upon initial instructions, clients will almost always tell me that their priority is

  • to secure justice
  • for the police to admit wrongdoing, to apologise and/or
  • admit liability.

Financial compensation is a secondary consideration.

The sad reality is that despite, or perhaps because of, their status as a public body, the police are very defensive when accused of knowingly acting outside their powers, and highly reluctant to admit ‘in black and white’ that they have done so. In this respect, Police Forces are aided by the Civil Procedure Rules which as a general rule operate under the assumption that civil claims are all about financial compensation and therefore if the Defendant offers enough, a Defendant can “buy off” a claim without admitting liability, or having their actions scrutinised in the light of day at trial.

The Court has however, on certain occasions, recognised that the purpose and aim of civil justice is not always met by the simple payment of compensation and that sometimes a financial settlement  alone does not provide a Claimant with the vindication he/she seeks.

I am currently acting on behalf of a woman  who is bringing a claim against her local Police Force.

Julie was arrested in 2015.  At this time, Julie was struggling to cope with the behaviour of her 15 year old son Kieron who was prone to violent outbursts. She contacted the Police on a number of occasions to report these concerns and asked for assistance from the Police/Social Services.

On a day in March,  there was a further incident between Julie and her son, when Julie returned home to establish that Kieron had damaged her bedroom door.  Julie asked Kieron why he had caused the damage. In response, Kieron told Julie to “fuck off” and immediately stormed out of the house. When Kieron did not return, Julie contacted the Police to report events and subsequently received a telephone message from a Police Sergeant confirming that Police were looking for Kieron.

Throughout the night, Julie was understandably worried about her son’s welfare and contacted the Police again the next morning for any update.  Julie thought it was best that she and her daughter try to continue as normally as possible, and accordingly she got herself and her daughter ready and accompanied her daughter to school.  At school, Julie  then saw a teacher at the school gate and advised that Kieron was missing.

Later that morning, Julie telephoned her children’s school and was informed that Kieron had attended.

Subsequently Julie’s daughter telephoned Julie in distress, so Julie attended the school to establish what was happening.  Upon arrival, Julie saw and comforted her daughter, and was then asked to speak to two police officers in private.  She was told that Kieron had been out all night. Julie explained what had happened and that she had notified the Police of this. One Officer advised that the Police had no record of her calling.  Julie confirmed that she had and that in response, she had received a voicemail from an Officer and that she could play back the message.  However the  Officers present were not interested and declined to listen to the message.

One Officer radioed through and again it was suggested that there was no record of Julie having reported Kieron missing.  Again, Julie disputed this and again made reference to the message on her phone. However at 12.40, whilst still on the school premises, Julie was arrested on suspicion of child neglect.  Julie was transported to the local Police Station where her detention was authorised.

Julie is a person of good character having had no previous adverse dealings with the police. Given the circumstances that were unfolding, Julie was understandably “upset and emotional” as recorded in the Custody Record.

Julie was processed, searched and then detained in a cell.

Two and a half hours later whilst in her police cell, Julie was informed that no further action was to be taken and she was to be released. Julie was informed that her son would hereafter be accommodated by Social Services and her daughter would be returned to her.

Julie was advised that her call reporting Kieron missing had been inaccurately logged but had now been correctly located.

Upon her release from police custody at 16.05,  Julie was again recorded to be “quite emotional” and transport home was arranged.

Julie was traumatised by the allegation and her arrest. She considered herself to be a devoted mother who was dedicated to, and lived for, her children who were always loved and well cared for.

She stated that she was always amongst the first five parents at the school gate, waiting to collect her children at the end of the school day; she had often helped out on school trips when her children were younger; and she had been a parent helper at swimming classes, at school fitness events, and with reading.  She always attended parents’ evenings and school awards ceremonies, and was very proud of her children’s achievements.  She was emphatic that she was never neglectful, she had always “made a constant effort”.

She reported that in or around 2014 the behaviour of her eldest child, Kieron became problematic; he was around the age of 15 at the time.  Initially she put this down to “teenage rubbish” and hoped that Kieron would grow out of it.  She described him as being destructive to their home, treating her disrespectfully, and being violent towards her.  She had taken her son to the GP, who referred him to Child and Adolescent Mental Health Services (CAHMS), and she had spoken to his school about her concerns that he may have Asperger’s or some other condition.

My client found her arrest to be publicly humiliating and  felt that the record of her arrest would taint her character and employment prospects.

Following review, I decided to take on Julie’s case.  The Police failed to respond to an initial letter of claim, and so it was necessary both to issue and serve Court proceedings.  In response, the Police then filed a Defence denying liability.

Notwithstanding the terms of the Defence, the Police subsequently put forward a financial offer pursuant to CPR Part 36 to settle the claim. By reason of the terms of Part 36, the Claimant must obtain a judgment more advantageous than the stated offer otherwise they will be penalised in legal costs.

The Police’s offer reflected a reasonable valuation of the claim but here, the Claimant’s main objective was not financial compensation but rather securing an admission of liability and deletion of all records pertaining to her arrest.

In the circumstances, and notwithstanding the significant risks of an adverse cost order, but with my blessing, the Police’s offer was rejected.  In turn my client, on my advice, put forward a counter offer, £500 lower than the Police offer on condition that the Police admitted liability –  such that if accepted, the Defendant, a public body, would pay out less money …… surely an attractive option to any cash strapped Police Force in these difficult times?

In response, the Police rejected my client’s counter offer and put forward a revised offer to settle,  £1,000 higher than our offer but again without admission of liability, i.e. yet more money but with no acceptance of responsibility.

Once again, my client wishes to reject the Police’s offer, and I am willing to back her, but the present scenario starkly highlights the risk my client is taking over exposure to adverse costs (and therefore potentially walking away with a “pyrrhic victory” and a costs order against her).  However, she is willing to take that risk because the principle of the Police admitting they were at fault is more important to her than pounds and pence.

If the status quo remains, the case proceeds to trial and the Claimant establishes liability, ‘beats’ her own offer, but fails to beat the Defendant’s offer, I am optimistic that the Court will not penalise my client.  Why?  The reason is that had my client accepted either of the Police’s offers, the real issue would still have been outstanding and my client would not have established that her arrest was unlawful and thereby restored her reputation. That is the real purpose of this litigation.  My view is supported by the recent High Court decision of MR V Commissioner of Police for the Metropolis  (2019) which cited with approval, the House of Lords decision of Ashley v Chief Constable of Sussex (2008); in essence that the remedies provided by the law of tort are not limited to obtaining of financial compensation.

In the MR case, (which, like Julie’s case was essentially a claim for unlawful arrest), it was held on appeal that the Claimant should be able to recover his legal costs despite not beating the Defendant’s offer of £4,000 at Trial (the Claimant was in fact awarded damages of only £2,750).  The reason for this decision was that the Claimant had prior to Trial made an offer to settle for no damages, but an admission of liability and reasonable costs.  On appeal, Mrs  Justice McGowan found the Claimant’s offer to be a genuine and significant concession.

Decisions such as that in MR give me encouragement that the Judiciary increasingly understands that money does not always make the world go round, and that particularly in claims against the Police an admission, or finding, of liability (which is, in effect, a declaration that the Claimant was unlawfully arrested) is often worth far more than a four or even five figure damages sum.

However, it will take brave Claimants such as Julie, and lawyers who are prepared to back them, to firmly establish this as a principle of law, by not being bought off by monetary offers with no admission of wrongdoing attached.   In other words, don’t let the Police give you ‘zero’ answer on liability, or ‘zero’ apology, by buying you off with more ‘zeros’.

Why You Should Always Use a Specialist Solicitor to Sue the Police

Just over 2 years ago, a new client emailed me.  Pedro, from South America, had just been acquitted of assaulting a police officer following a trial at the Magistrates’ Court.   He now wanted to bring an action against the Met Police  and was hoping for some “justice”.

I was in London at the time and suggested he call me in the morning.  Later that same day, he replied advising that he had decided to carry on with the same firm that had represented him in the Magistrates’ Court. You can see our text messages below:

After a few days, Pedro called me.  He explained that following enquiries with his criminal defence solicitors he had decided that he wanted me to act.

I obtained Pedro’s file of papers from his criminal defence solicitors and all other available documentation and then met him for a lengthy face-to-face meeting whereupon I took his full instructions.

Following a night out in April 2017,  Pedro had fallen foul of encountered several Metropolitan Police Officers in an incident that resulted in him being violently arrested for allegedly breaching section 5 of the Public Order Act and assaulting 2 officers, during which arrest he suffered multiple soft tissue injuries.  As above, he was subsequently prosecuted and acquitted following trial at Stratford Magistrates’ Court.

In terms of evidence, we had Pedro’s account (somewhat tainted by his admission that during the day he had drank 6 pints of beer and 3 glasses of spirits), the account of 5 police officers and some limited CCTV footage which caught the later part of the incident only.

The first thing I had to do was disabuse Pedro of the notion that just because he had been acquitted, he had a ‘cast  iron’ claim against the Met.

Certainly his acquittal was of paramount importance to his proposed claim for malicious prosecution (no acquittal, no claim).

Furthermore,  the findings of the Magistrates’ Court were certainly helpful to Pedro’s cause and in my opinion, would make it difficult for the police to defend the claim.  Difficult, but not impossible, as the findings of the Magistrates’ Court were not binding upon the civil court and further, involved meeting a different standard of proof (beyond reasonable doubt).

At the outset of my contact with Pedro,  I had alluded to the difficulties that lay ahead for him in his proposed claim.  After many years of experience in this field of law, I am accustomed to the trials and tribulations (literal and metaphorical) of pursuing a successful civil action against the police.  I have previously blogged about such issues in my blog, ‘Attrition warfare’ and Pedro’s case proved  no exception.

Once I intimated a claim on Pedro’s behalf, the Met refused to either admit or deny liability and instead offered £3,000 plus costs in settlement.  It was necessary to issue Court proceedings whereupon, of course,  a robust defence was filed denying all liability.

Notwithstanding these hurdles, relying on  my expertise and knowledge of the law, and familiarity with the way the police litigate these cases, I was able to guide Pedro’s case to a successful conclusion and, I am pleased to confirm that I have just settled his claim for £30,000 plus costs. This is 10 times the amount that the Met initially offered him in settlement of his claim.

I am pleased for both of us that Pedro decided to trust me to handle his case.  This is a very specialist area of law, and to get the right result when you are fighting what is often an uphill battle against the Police, you need the right lawyer.

The following is the very kind testimonial which Pedro provided me at the conclusion of his case:-

I contacted Iain Gould. He offered a meeting and straight to the point explanation of what was the cards he had in hands.

The determination to help and winning attitude sounded like an extra ability and not just fancy words i remember reading on “professionals” websites.

During the period of whole process Iain has worked effectively with detail in every action and procedures which provided me with the peace of mind knowing that the someone was going to pay for the injustice i was put through.

In every single legal term and language on documentation received to be signed there was a phone call from Iain followed by explanations of their meanings, how he was going to proceed and different options for me to choose. Due the full trust gained within very short period of time, i have many times just allowed Iain to decide on his own in what was the best and act upon it on my behalf.

Iain has been Amazing throughout the whole process proving that he is a outstanding  professional with exceptional standards and vast knowledge on the subject; I could not have chosen better qualified or any other Person to deal with.

 

(All names changed.)

Will the Police learn their lesson? The illegal strip-search of a minor.

Historically, the term ‘juvenile’ as used in the Police and Criminal Evidence Act 1984 (PACE) has referred to a child under 17.  Section 42 of the Criminal Justice and Courts Act 2015 (CJCA) extended the definition of ‘juvenile’ for the purposes of PACE to include any child or young person who appears to be under the age of 18, establishing the same protections for all those aged under 18 and bringing the definition into line with that of the  UN Convention of the Rights of  the Child (UNCRC).

Safeguards for children/young people

PACE incorporates a number of safeguards for children/young people caught up in the criminal justice system.  Any contact between a child and police officers can be very frightening and distressing and have long-term adverse consequences for vulnerable young minds which are still in the process of maturing. The need for such protective measures should be self-evident.  Self-evident to all except for some Police Officers it seems.

I have just concluded a claim for John, a young man from Merseyside who’s just turned 19.  Back on 23rd  February 2017, John was just 16 and as is evident  from his custody photograph taken that day, a young-looking 16.

At the time, his older brother, Kevin was dating a girl from Scarborough (Lauren).  The weekend before, Lauren had come over and stayed with Kevin and his family.  On the 23rd February, Kevin agreed to drive Lauren home.  John had never been to Yorkshire before so went along for the ride.

Upon arrival at Lauren’s home address in Scarborough, Kevin parked up and he and Lauren went inside leaving John sat in the front passenger seat.

A short while later, a Police van pulled up close by and a number of officers alighted and surrounded the car in which John was sat before one of them opened the front passenger door and asked him where the driver was.  John explained that his brother was the driver, that he was in a house close by and that he would be back soon.

An officer instructed John to step onto the pavement.

John was required to provide his name and date of birth, which he did, thereby indicating that he was a minor, which was apparent in any event.

John was then told that he would be taken to the police van.  John was escorted to the van by two officers.   He was instructed to step inside the vehicle, whereupon he was told he was to be subjected to a “strip search.”  No legal justification or grounds for the search were provided to him.

Unlawful intimate strip-search

John was instructed to pull down his track suit bottoms and underwear, whereupon the officers conducted an extremely intimate search.

Wrongful arrest

To his complete shock John was then informed that he was under arrest on suspicion of possession of cannabis, irrespective of the fact that no drugs had been found upon him.

John was then detained in the police van for an extended period of time (in excess of 60 minutes) until he was transported to Scarborough police station, which was no more than a mile away , where his detention continued.

Following arrival at Scarborough police station, details of John’s arrest were reported to the custody officer, but details of the strip/intimate search were not disclosed, nor was the negative result of such searches.

Despite John requesting that his father be promptly informed of his arrest, John’s dad was not in fact informed until some three hours later by which time he was unable to attend the police station to act as appropriate adult.  Consequently it was necessary for a representative from the Youth Offending Team to do so.

John was obliged to provide fingerprints and a DNA sample and was then detained in a cell until the appropriate adult arrived whereupon he was interviewed. After six hours in custody, John was finally released.  In due course, John received confirmation that no further action would be taken.

The facts of the case would form a great quiz for trainee police cadets as to what Codes of Practice were breached except for the sad fact that this catalogue of terrors was actually perpetrated against a real person. Focusing just on the search, what did the officers do wrong?

  • The strip/intimate search was conducted in the absence of an appropriate adult to which John was entitled.
  • No authorisation  for the search was provided by an Inspector.
  • John was not told of the legal authority for the search.
  • John was not told of any legal grounds for the search.
  • John did not provide, nor could he provide, consent to the search.
  • The strip/intimate search was carried out by a police officer, when it ought to have been carried out by a Registered Medical Practitioner or Nurse.
  • No documentation of the search was kept or maintained, thereby breaching section 3 of the Police and Criminal Evidence Act 1984.
  • Contrary to Code A paragraph 4.2B, no record of the search was made in the custody record.
  • The officers knew that the fact and/or manner of the strip/intimate search rendered it unlawful or a breach of the Codes of Practice but conducted it regardless.
  • The officers knew that the fact and/or manner of the strip/intimate search (in the dark, in a van, without giving reasons or legal authority and without any appropriate adult) was highly distressing and embarrassing to John but conducted it regardless.

In short, the search was carried out with wholesale disregard for every significant safeguard guaranteed pursuant to the Police and Criminal Evidence Act 1984.

Formal complaint

Upon John’s release from police custody, John’s dad – having been notified of what had happened –  immediately lodged a formal complaint which was subsequently investigated by the North Yorkshire Police Professional Standards Department. Following  investigation, the Professional Standards Department conceded that the actions of their officer were in breach of

(i) the statutory provisions relating to strip searches in the Police and Criminal Evidence act 1984, and

(ii) the relevant Codes of Practice thereto.

Disciplinary action was brought against the two officers who had carried out the search.

Civil claim

Once the complaint investigation had been concluded, I was instructed to pursue a civil claim for compensation on behalf of John.  Sadly but unsurprisingly and notwithstanding the findings of the Professional Standards Department, the Chief Constable denied liability and it was necessary to issue court proceedings.

I am pleased to report that following issue John’s case has now settled for £10,000.00 damages, plus costs.

This settlement is a fair award of compensation but monetary compensation was not the priority for John and his family.  As John’s dad said to me just last week, by bringing this action, the family wanted to expose this abuse of police power in the hope that other children/young people will not suffer as John did. The power of the police to fulfil their functions and duties is wholly dependent upon public approval of their actions and behaviour and on their ability to police by consent.  The carrying out of illegal strip-searches on children is a gross abuse by officers of the trust and extraordinary power placed in their hands by our society, and it is for the good of everyone that such abuses be highlighted and prevented, in so far as possible, from occurring in the future.

A child’s first real experience of the Police should not be the degrading and humiliating one which John underwent.  If the Police want the next generation to have trust and confidence in them, they should learn the lesson of this case well.

(All names changed.)

Losing the plot: Unlawful Arrests for Terrorism

The Government announced this week that the UK’s terrorism threat level has been downgraded from “severe” to “substantial” and as such the terrorism threat is now at its lowest since August 2014.  “Substantial” is the third of five ratings at which the threat level operates and indicates a terrorist attack “is likely”.

I am quite sure that the risk of a terrorist attack remains real but whatever the level of perceived threat, it’s incredibly important that previous terrorist attacks and/or the current threat level should not affect the way in which Police Officers approach situations, which should be done in accordance with their training and with approved techniques.

Walking whilst black

 I have recently concluded a claim for a young black Londoner (whom I shall identify as “Steven”) where it is blatantly apparent Officers concerned in his arrest and detention lost sight of their powers and responsibilities and carried out what I consider to be an unlawful arrest.  The Metropolitan Police evidently agreed because although liability was disputed they have recently settled Steven’s claim such that he is to receive a five figure settlement award.

Back in October 2014, Steven was walking along Ealing Broadway having been for a haircut, when he was stopped by two Police Officers.

One Officer said that Steven had been stopped because he was suspected of following another police officer from Ealing Police Station.

Steven, who had never been in trouble with the Police, was shocked at the allegation and politely said words to the effect that he had not followed anyone. He told the officers  confronting him that they were in fact the first police officers he had seen all day.

One Officer nevertheless told Steven to “stand over there” and pointed towards a nearby shop. Steven did as instructed.

Unlawful stop and search

The Officer then conducted a pat-down search and asked Steven for his name and address. Steven found the request intrusive but provided the information as requested.

The Officer then said that Steven “looked suspicious” and that he thought Steven was “linked to something that had happened earlier on”.

Steven told the officers where he had been and what he had been doing over the course of the day.

The Officer then asked Steven if he knew “what had been happening on the news as regards to terrorism”. Steven replied, “No.

The Officer said, “Anyone seen acting suspiciously outside a police station is treated very seriously as the police are on red alert.” Steven replied, “I was just going home.

The Officer then repeated the suggestion that a police officer had been followed outside a police station and implied that Steven was the person who had followed this police officer.

It subsequently transpired that a PCSO had earlier that day reported that she had been followed from the Police station by two black males and then several hours later, another Police Officer had left the Police Station and reported that he had been followed by Steven.

Steven again denied the allegation and questioned why he would do such a thing. Steven reiterated that he had simply been on his way home.

More Police Officers, both uniformed and plain-clothed, joined the first 2 Officers on the scene.

Steven was confused and shocked about what was happening to him.

Steven also felt embarrassed, as he was being treated like a criminal, as members of the public in the vicinity were staring at him as he was questioned by the police.

One of the plain-clothed officers told Steven to hand over his phone, so that he could “have a look through it”. Steven did so and provided his password.

After a little while, Steven asked the plain-clothed Officer whether he had found anything on his phone. The plain-clothed Officer replied that Steven had “some nice food on the phone. Steven knew from this that the Officer had been looking through his photographs.

One of the officers then asked Steven what he did for a living. Steven explained that he was a chef.

Steven then heard one of the officers speak into his radio and attempt to verify Steven’s identity. Eventually the response came back that Steven did not have any previous convictions and that he was not wanted by the police.

Throughout this time, Steven repeatedly asked if he could go.

Steven was eventually informed by one of the Officers that he had called for a Sergeant to come down and speak to Steven. The Officer said that the Sergeant was on his way.

Steven, who had been compliant throughout, felt increasingly worried and victimised.

Steven asked how long the Sergeant would be. The Officer said that the Sergeant would be no longer than around five minutes.

After what felt to Steven like 15 minutes, the Sergeant finally arrived on the scene. The Sergeant spoke with some of the Officers, before approaching Steven.

The Sergeant asked Steven for his name and whether he had his passport on him, where he had been that day, and where he had been going when stopped by the police. Steven answered the Sergeant’s questions and explained that he did not have his passport on him.

The Sergeant then said to Steven, “I don’t believe you and your story.” The Sergeant then asked Steven if he was “selling drugs”.

Steven, as a young Black man, immediately felt that he had been stereotyped, targeted and racially discriminated against. This new accusation clearly had nothing to do with the original allegation that Steven had been following a Police Officer.  Steven replied, “No.”

The Sergeant then said words to the effect of,

Coming from where I’m coming from, if you was in my shoes, how would you look at this?

Steven replied words to the effect of,

I was simply walking with an intention to go home and on my way home to get something to eat. I changed my mind and was walking to the bus. What is wrong with that?

The Sergeant ignored Steven’s response and went to speak to some of the other Officers, who were huddled together in a group.

Terrorism, Drugs or Harassment?

A decision was made to arrest Steven and he was handcuffed to the rear.

One of the Officers told Steven he was “under arrest for suspicion of harassment”.

Steven was shocked, distressed and angry.  He could not understand how the position had seemingly changed from an allegation of following a Police Officer, to being questioned about terrorism and drugs, to an arrest for harassment.

The Officers then escorted Steven to a nearby police vehicle and transported to Acton Police Station.

Once at the Police Station, Steven was put before the Custody Sergeant and booked into custody.

Steven was subjected to a pat-down search and had his property removed from him.

Illegal strip search

Steven was then taken to a room away from the custody desk and subjected to a strip search.

Steven understandably felt extremely embarrassed, humiliated and degraded by this experience; like many people who experience a Police strip-search, he felt as though he was deliberately being stripped of his dignity as well as his clothes.

Steven was taken from the room and had his DNA, fingerprints and photograph taken.

Steven was then placed into a small, cold cell.

After a few hours in the cell, a female Officer visited the cell. The officer informed Steven that he was going to have an interview so that he could tell his “side of the story”. She told Steven that he could do this with or without a lawyer but that it might take some time for a lawyer to arrive.

Steven agreed to be interviewed without a lawyer because he wanted to get out of the Police Station as quickly as possible.

Shortly after this, at or around 23:59, Steven was taken from the cell for interview.

During the course of the interview, Steven answered all questions put to him. This included questions about his views on the Police and his views on Syria.

At the conclusion of the interview, Steven was returned to the cell.

Following interview, Steven continued asking the officers what was happening but was told that the people dealing with his case had gone home.

Steven felt trapped and as if he would never get out of the cell.

Steven eventually managed to fall asleep, but periodically woke up due to the noise of the cell-block and thoughts running through his mind.

At some point, Steven pressed the cell buzzer and asked if he could call his family. Steven was worried that his family would be concerned about his whereabouts. He had seemingly vanished from the face of the Earth.

Steven explained to the person who answered the buzzer that the contact  number was in his phone. Steven was informed that his phone had not yet been returned from the lab.

Steven was not able to call anyone else, as he did not know any contact numbers without having access to his phone.

Eventually an Officer attended the cell and told Steven that he could leave the Police Station. Steven was taken to the custody desk.

At the custody desk, Steven was informed that he was being released on bail, to surrender at a later date.

Steven’s property, with the exception of his phone, was returned to him.

Steven was released at or around 16:35.

Steven walked from the police station to the nearest bus stop and caught the bus home.

Release and Complaint

On arrival home, Steven discovered from members of his family that the Police had attended the premises whilst he was at the Police Station and had searched his bedroom.

Members of Steven’s family were upset about what had happened. Again, Steven felt like his privacy had been invaded.

A few days later, two Officers attended Steven’s home to return his phone.  He was told that the Police knew he was “not a terrorist” and that his bail had been “lifted”.

Steven subsequently filed  a complaint. Following investigation, his complaint was dismissed.  He appealed to the Independent Police “Watchdog” (in reality, often the Police “Lapdog” I am afraid) the IPCC.  The IPCC rejected his appeal. They concluded that the stop was justified given the context (i.e. the then terrorist threat level) and the Officers’ allegations of being followed.

Analysis

It’s quite evident that the grounds for Steven’s ‘stop and search’ were questionable to say the least.  On Steven’s account, on the one hand he was told that he had been stopped because of the offence for which he was later arrested and on the other hand he was informed that he looked suspicious and reference was made to drugs and terrorism.  It seems that Steven’s race/ethnicity was a primary factor in the Officer’ decision-making from the outset.

But I believe that the legality of Steven’s arrest for harassment was also highly questionable given that a single act cannot constitute harassment.  The offence is only committed if there is a course of conduct.  If it was not reasonable to suspect Steven of a course of conduct, it could not have been reasonable to suspect him of the offence of harassment.

Furthermore, in respect of the allegation that Steven was a suspect for having followed a PCSO earlier that day, Steven’s description simply did not match the description of the actual suspects (if indeed the men could have been genuinely suspected of having committed an offence or at least one incident that may have formed the basis of an offence of harassment).  It could not have been reasonable to arrest Steven for an offence based on a description of a suspect or suspects that did not correspond to his appearance.  The only feature, it seems, that was broadly similar was the fact that the suspects and Steven were not white as indeed are millions of people in this country. Suggestions about a climate of terrorism/fear about terrorism do not negate the need for every arrest to be founded on reasonable grounds of suspicion.

If it was not reasonable to suspect Steven of having followed the PCSO, even if it had been reasonable to suspect that Steven was following another Officer based on his (entirely innocent) actions, the requisite course of conduct would not have been made out for the purposes of the offence by following that Officer alone.  It would be necessary to show reasonable grounds to establish a course of conduct, which in my opinion could not be shown, because Steven could not have reasonably been suspected to have been involved in following the PSCO.

In the circumstances, Steven’s arrest for harassment was in my opinion entirely unlawful, as was everything that followed afterwards including his degrading strip-search and the search of his home address. This is reflected in the significant damages and legal costs which are now to be paid by the Metropolitan Police in settlement of Steven’s claim.

Conclusion

I believe that it is highly important to pursue claims on behalf of individuals such as Steven as a natural corrective – sometimes the only remedy available – against Police over-reach of their powers of stop search and arrest particularly where the complaint process has failed the victim, as it so often does.

Terrorists commit ghastly, high-profile crimes but the reality is that the percentage of us that they can directly be harmed by their activities is extremely small.  What terrorism is much more effective at doing is creating a disproportionately big climate of fear, whereby, as I am sure is the terrorists intention, they can scare us into harming ourselves and changing the character of our open, liberal, democratic society by swinging towards ‘draconian’ or paranoid policing.  Steven’s arrest and detention was one such over-reaction by the Police, in circumstances heavily tinged with racism, which we must guard against as keenly as we guard against terrorist attacks themselves.

Police abuse of power is a problem which whilst at a much lower-level of wrongdoing is a more pervasive risk and one which could do greater long-term damage to the fabric of our society.