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How PACE Fails Victims of Police Misconduct

It is just over 30 years since the Police and Criminal Evidence Act 1984 (PACE) and the codes of practice came into force.  The Act provides a core framework of powers and safeguards around arrest, detention, investigation, identification and interviewing suspects  and helps ensure that the police remain subject to the rule of law.

Whilst PACE was undoubtedly a major step forward from the bad old days of poorly regulated policing (think ‘Life on Mars’…) one flaw in the Act is that it only provides after the event remedies for people who have suffered from unlawful police behaviour.  There is no mechanism by which the citizen can stop the wrongdoing being perpetuated against him by the police; all he can do is bring a complaint or civil claim for compensation, after the damage has already been done.

I was reminded of this issue when instructed by a young Liverpudlian man, ‘Michael’ (name changed) who was arrested in December 2012.

Michael’s account

On the day in question, Michael was at home with his (then) 2-year-old son when someone caused damage to the front door. He immediately contacted the police to report the incident.   Earlier that week, Michael had an argument with his girlfriend’s brother and erroneously assumed that he was responsible.

After a short time, Michael’s girlfriend returned to the house. Michael decided to go for a walk  to clear his head.  He left  with his dog.  Whilst out and about, he was contacted by the police on his mobile phone and also spoke to officers in a patrol vehicle.  Michael then returned home.

CCTV of the road in which Michael lived captured Michael returning to his home walking along the road with his dog before entering the house.

Michael entered the lounge area where he saw two police officers, PC A and PC B.  Michael spoke to his girlfriend  and asked what was going on.  One of the officers jumped up and said to him “Who the fuck are you? Get the fuck out”.  Michael replied “Who are you swearing at?” One of the officers then lunged towards Michael and attempted to seize hold of him.  Michael protested, insisting that he had done nothing wrong, and that he was quite properly in his own home.  Michael moved towards the hallway. The officers pursued Michael  and chased him outside to the road.

PC A told Michael he was under arrest for breach of the peace.  Michael put his arms into the air, again protesting that he had done no wrong.  PC A and PC B then took hold of Michael and punched him on a number of occasions.   Michael was in genuine fear for his wellbeing. He was punched further on multiple occasions, twice to the back of his head and on either two or three occasions to the side to the head.  He was then forced onto the bonnet of the police vehicle and there subjected to at least two knee strikes.  Michael was then dragged from the police vehicle and forcibly taken to the ground. Michael had his arms pulled backwards and was pinned to the ground by means of a foot placed on his back.  In desperation, Michael managed to extricate himself from the officers and made off along the road.

As Michael proceeded along a neighbouring road he was approached by PC C who pulled up alongside him and requested his name. Michael told PC C that he was wanted and Michael surrendered himself. As he did so, he said “I just hope you’re not like the other officers”.   PC C asked Michael to turn around which he did.  PC C then handcuffed Michael and forced him up against some nearby steel railings, resulting in bruising to his chest.  The officer then threw Michael to the ground and he fell heavily onto the right side of his face.  Michael was then struck to the head on two occasions by what felt like punches.

Michael was then transported to a police station where the custody record indicates that he arrived at 18:05h. According to the custody record Michael ‘was arrested for Breach of Peace’.

The circumstances of the arrest were recorded as:

‘Breach of the Peace – officers dealing with incident at an address when DP  (Detained Person) attends and is abusive, DP warned to calm down and leave but refuses DP removed from property continues to be abusive to officers refusing to leave location as such DP cautioned and arrested.  DP becomes aggressive on arrest makes off and is detained restrained by officers detained’

Michael complained to the Custody Sergeant about his various injuries, requested to see a Solicitor and stated  that he wished to make a complaint against the officers.  Michael felt incredibly vulnerable and upset and advised the custody officer that he felt as if he would hang himself whilst in custody.  Accordingly, the custody sergeant directed constant supervision.  Meanwhile arrangements were made for Michael  to see a Health Care Professional.

In an entry timed at 18:36h the custody record indicates:

‘DP has now been further arrested for resist/obstruct police – no reply’.

At 19:20h the custody record records that the Claimant was taken to see a health care practitioner who recorded that Michael  was ‘calm and pleasant throughout’.  In relation to his injuries, she noted that  ‘he had red circular marks around both wrists.  That his skin had been broken on his left wrist, where there was a graze.  I noted that he had a small laceration to his 4th finger at the knuckle closest to his hand.  That there was approximately 3mm of skin loss.  I noted that he had grazes to his right inside knee area.  I noted that he had grazes to his lower face, chin area on the right side.  I lastly noted that he has 2 lumps  to the back of his head on the left side and that there was redness seen at these sites.  No other injuries were noted’.

At 20:49h, Michael’s nominated solicitor was contacted and advised that the police were ready to interview Michael.  The solicitor advised that he would attend within 30 minutes and indeed he  attended at 21:19h.  Upon arrival, the solicitor requested a copy of the custody record which was handed to him and he then attended upon Michael.  Michael denied any allegation of wrongdoing.  The Solicitor advised Michael  to give a full account in interview.  The Solicitor then advised the police that  Michael  was ready for interview.  Only then did the police announce that in fact contrary to what they had said at 20:49h, they were not ready for interview.  The custody sergeant recorded as follows;

The  DP’s solicitor ‘did not appear happy’ that officers were not ready for interview and had ‘already questioned another officer re: delay.  ‘I then informed him that the delay was due to CCTV being obtained, officers mg11s (witness statements) and that officers had to see a medical professional re: injuries received during arrest.  I also informed him that the DP had only been in custody  for approximately 3 ½ hours’.

At 22:30h the custody record was endorsed to the effect that a new custody officer was now on duty and that continued detention was authorised.

At 23:01h, the Solicitor was contacted again to be advised that the police were ready to interview.

At 23:08h a review of detention  was carried out by an Inspector who endorsed the custody record as follows:

‘DP makes the following representations, he has no issues with the treatment of the custody staff but is considering making a complaint against the arresting officers …..   Continued detention is authorised as being necessary in order to secure and preserve evidence relating to the offence for which arrested and to obtain such evidence by questioning’.

At 23:33h, the Solicitor  re-attended  the police station.  CCTV footage of Michael going into the house and officers then chasing  him outside was now available along with the statements of PC A, B  and C.   The officers gave  very different accounts as to what had happened in the house and outside.

The Police account

In summary, the officers stated that they had attended Michael’s home address in order to take a crime report for criminal damage.  As PC A began to complete the report, Michael walked into the house, pushed a pram across the room and immediately started shouting at his girlfriend saying “Your fucking brother is  going to get it”.  Both of the officers told Michael to calm down and to stop shouting and swearing.  Immediately Michael became abusive and told the officers  to “Fuck off, it’s my house”.  Both constables warned Michael on numerous occasions to calm down however he refused to desist and his abuse continued.  Michael was asked to leave the house whilst the officers dealt with his girlfriend, however again he refused.

As the officers felt that a further breach of the peace was likely should Michael remain in the house and as there was a 2-year-old child awake and present during the incident, PC B placed his right arm on Michael’s shoulder and ushered him towards the living room with the intention of guiding him out of the house.  Michael began to resist and therefore the officer removed his hand.  Michael then walked out of the property.

Somewhat remarkably,  and according to the street CCTV footage, which showed that Michael was only out of sight and in the house for a very short period, all of this allegedly occurred in the space of 20  seconds.

On reaching the street, the officer alleged that Michael began to shout and swear again, waving his arms around and goading the officers saying “Am  going to go fucking mad, what are you going to do now”.  Such was Michael’s conduct, it was obvious that he was not going  to leave the area quietly and should he remain, a further Breach of the Peace was likely as Michael was angry.  On being told he was under arrest, Michael became even more angry and aggressive.  The officers took hold of Michael who tensed his body and struggled.  The officers placed Michael up against the police vehicle with a view to handcuffing him.  Michael continued to struggle and in fear that Michael was about to headbutt one of them, PC A punched Michael with his right hand in the hope of disorienting him.  Michael continued to struggle and pull away which resulted in the officers having to take Michael  to the floor in a spinning motion.  Due to the position Michael had landed it was difficult for the officers to get him into a ground pin position.  Accordingly, PC B punched Michael twice to the rear of his right arm. By this time PC A was in genuine fear for his safety and that of his colleague and therefore requested urgent assistance.  Meanwhile Michael was able to struggle to his feet and make off.

The available CCTV footage captured events outside the house.  Notwithstanding that the officers had clearly viewed it (before preparing their statements?) the footage was overwhelmingly more consistent with Michael’s account rather than the officers’ account.

A short time later, PC C was driving in a neighbouring  street when he spotted Michael.  PC C approached him and asked for his name to which Michael replied, “You fucking know my name”.  PC C told Michael he was going to search him and asked him to turn around.  PC C then grabbed Michael’s wrist.  In response, Michael tensed his body and began to  pull away.  Accordingly, PC C pulled Michael to the ground and secured the second handcuff.  Michael continued to resist and struggle such that he tried to headbutt the officer.  PC C was forced to strike Michael twice in the face with an open palm.  Michael now tried spitting at the officer resulting in the officer having to hold onto Michael’s head.

By this time, PC’s A and B arrived and Michael was brought to his feet and placed into the rear cage of a police vehicle. Having already been arrested for Breach of the Peace, he was subsequently arrested for obstructing and assaulting a police officer.

Police interview

In interview Michael gave a full account of the force used upon him by the arresting officers, which he said in terms was unprovoked.  He indicated that the statements of PC A,  PC B and PC C were untrue.  In summary, he stated:

‘To be honest I’m the innocent one. I haven’t done nothing wrong.  My window got smashed and I was the one who got beat down….  I just got in the house to see what’s up and then the two officers came straight at me.  Why would I wanna throw anything in that living room where my son is?’…..

Viewing the CCTV during the interview, Michael observed:

‘You’ll see me.  As soon as I go in I say “What’s going on, have you found him?”  The next minute two of your colleagues chase me out of the door as you can see there yourself.  I run out….  If I didn’t  get out of the house I proper thought they were gonna batter me.  And they have battered me’.

And, significantly, his solicitor observed:

‘Michael, you’re out of the house in 20 seconds.’

The interview concluded at 00:43h.  Michael was returned to a cell and his solicitor left the police station believing that his client would soon be charged and released on bail.

Charge

At 03:00h Michael was charged as follows:

(1)    behaved in a manner whereby a Breach of the Peace had been committed, contrary to common law;

(2)    resisted Constable A in the execution of his duty, contrary to section 89(2) of the Police Act 1996.

Although the police had now charged Michael, his detention continued for a further 7 hours and 18 minutes, so as to prevent a further Breach of the Peace.

The custody record at 03:09h was endorsed with an entry by an Inspector who conducted a review of detention, noting that:

‘detention necessary to prevent further Breach of the Peace, DP states that he will hang himself if he has to go back into the cell that he has been in for 11 hours and he can’t handle it, I have spoken to the custody sergeant and he will arrange officer for constant observation , DP sits in glass room waiting for officer’.

At 09:33h the Solicitor called the police station to establish what had happened after he left in the early hours of the morning.  Although not surprised that in spite of the evidence, Michael had been charged, he was outraged to discover that Michael was still in custody and immediately made representations to the Custody Sergeant.

At 10:08h the custody record was endorsed as follows;

I have reviewed the statements as requested by the legal representative.  The statements of the officers record a breach of the peace regarding an incident at [the Claimant’s home address} and the DP’s behaviour directed towards his girlfriend’s brother.  He was not present at the time of the incident, or at least he was not present when the comments were made in the presence of the police officers. 

The solicitor has made representations that his client is being held to prevent a breach of the peace, and has queried whether this detention is necessary.  I have looked at the MG7 which does not provide a great deal of information regarding the reasons for keeping the male in custody, and central to this decision was to protect the girlfriend’s brother.  The DP has not been arrested regarding any of threats made towards the girlfriend’s brother.

I have spoken to the girlfriend  on the telephone and she has informed me that this is the first time there has been an incident regarding Michael and her brother.  I have also been informed that the dispute revolves around an unpaid debt of £20, which she states can be sorted amicably.

 Michael’s girlfriend is happy for the DP to return to her address, and has shown no concern to her own safety or that of her brother’s safety.

 I am satisfied that the initial arrest of Michael was lawful  and that his detention at the custody suite was necessary.  I am now at a position to consider the representations made by the solicitor and I have to agree with him that further detention is not necessary to prevent a breach of the peace and that the threats made towards the girlfriend’s brother have not been taken any further in relation to any other criminal matters, such as threats to kill.

 In light of this, I do not believe that there is a further likelihood of a breach of the peace reoccurring, yet I am satisfied that the DP should still be charged with a resist/obstruct police offences and can be bailed as the DP has a verifiable address.

 Having spoken to the DP, my opinion is that he is not suicidal and he states that he stated he wanted to hang himself last night due to an inability to cope when in a police cell.  DP has no previous self harm history, and having spoke to his girlfriend I am satisfied that DP can be released without any concern to his mental/suicidal state.

At 10:18h the day after his arrest Michael was finally granted bail to later surrender to the Liverpool Magistrates’ Court.

On the basis of Michael’s instructions and review of available CCTV footage, Michael had been the victim of Police Misconduct.

To Michael’s credit, upon arrival at the police station he indicated  that he wanted to make a complaint against the arresting officers.

To the custody sergeant’s credit, cognizant of Michael’s injuries and perhaps of his complaint, he organised an early medical assessment.

To the Health Care Professional’s credit, she performed a thorough examination and made a careful note of Michael’s injuries.

To the Solicitor’s credit,

  • upon first arrival at the police station (having been told the police were ready to interview), he made representations as to the delay in the case progressing which he insisted should be recorded in the custody record;
  • he believed his client’s instructions of innocence (a prerequisite you may say but in my experience often missing), reviewed the police evidence available and challenged the police account and legality of arrest in interview and afterwards;
  • he encouraged Michael to provide a full account and rebuttal.  There are times when criminal defence solicitors advise their client to go ‘no comment’.  Given Michael’s assertion of innocence,  it was in my opinion crucial for him to provide a contemporaneous account;
  • he made robust representations to the custody sergeant as regards the legality of arrest, detention and charge.  As is often the case, here there was a conflict over the facts.  In such circumstances, the custody sergeant is unlikely to decide in favour of the suspect and the solicitor.  Notwithstanding this the representations were again  recorded in the custody record, albeit dismissed;
  • he expedited other enquiries perhaps over and above what a standard  criminal defence representative would do in the expectation that a complaint and/or civil claim would be pursued, for example he;
  1. arranged for Michael’s Injuries to be photographed.
  2. requested custody CCTV footage to be preserved as evidence of both Michael’s demeanour and what steps were taken at the police station as regards his arrest, detention and charge.

Michael later attended court where he pleaded not guilty and the case was adjourned for trial.  Shortly before trial, the CPS issued a Notice of Discontinuance in relation to both charges.

Civil claim

Once the prosecution had ended, I was able to progress Michael’s case.

In light of my misgivings as regards the impartiality and effectiveness of the complaint process, Michael decided to pursue a civil claim only.  The available heads of damages were false imprisonment, assault and battery, malicious prosecution  and/or misfeasance in public office.

Once a claim was intimated, Merseyside Police investigated and soon advised that liability was denied, providing a very different factual account to that of Michael (see above).  However, Merseyside Police clearly had concerns.  Without prejudice, they advised that “as with all litigation, the Defendant is aware of inherent litigation risks”, and so offered to settle the claim for £4,500.00.

In light of Michael’s injuries, I commissioned evidence from both a GP (to report on Michael’s physical injuries) and a Psychiatrist (to report on Michael’s psychological injuries).

Thereafter, I issued court proceedings on behalf of Michael.  As is standard practice, a robust Defence was filed and the case proceeded towards trial.   Notwithstanding the contents of the Defence, Merseyside Police eventually put forward a revised offer of settlement and after negotiation Michael’s claim settled for £40,000.00 plus costs.

The success of Michael’s claim was multi factorial but part of it lay in the solicitor’s excellent representation both at the police station and immediately afterwards.

Sadly though, notwithstanding the excellent efforts made by Michael’s solicitor at the police station to highlight mistreatment of Michael and clear breaches of police rules and procedure in regard to his arrest and the unnecessary prolongation of his detention in custody, nothing could be done under PACE to get Michael released earlier, despite clear, ongoing breaches of the Act and the fact that each minute that he remained in the cell was clearly having a traumatic effect on Michael’s mental health.

In this, as in so many other cases, PACE failed to prevent police mistreatment and false imprisonment of Michael, and he was left afterwards to have to fight for compensation for the wrong that had been done and injuries inflicted on him, rather than being protected from those harms in the first place.

 

 

How the Metropolitan Police can learn from America

I was delighted to read that the two black men wrongly arrested at a Starbucks Cafe by Philadelphia Police last month have reached a financial settlement with the Police so quickly.

On April 12, Rashon Nelson and Donte Robinson arrived 10 minutes early for a business meeting at Starbucks in Philadelphia.  Upon arriving, Nelson asked whether he could use the toilet and was told by the white manager of the store that the toilets were for paying customers only.

After Nelson returned to the table where Robinson was sitting, the manager approached them to ask whether they wanted to order.  They declined.

Two minutes later, the manager called the Police to report “two gentlemen in my cafe that are refusing to make a purchase or leave”.  Police Officers arrived a few minutes later.

The officers told Nelson and Robinson that they had to leave without any discussion. They were then arrested but without being told the reason.

Both men were handcuffed to the rear and escorted to the nearest Police Station on the basis of trespass and creating a disturbance.  The arrest was captured on video.

After nearly 9 hours in custody, the men were finally released without charge because prosecutors advised that there was “a lack of evidence that a crime …..  (had been) committed”.

The arrests prompted a #Boycott Starbucks Campaign and protests at the particular store in Philadelphia.  Such was the backlash, Starbucks apologised on Social Media and the Company’s Chief Executive issued a public apology.  The manager who called the Police was sacked and the Company announced that it would close its stores on May 29 to give anti-bias training to all of its employees.

In response to allegations of wrongdoing, the Philadelphia Police Commissioner’s first reaction was that his officers had been “professional” and had done “absolutely nothing wrong. They followed policy; they did what  they were supposed to do”.   After further investigation however, he changed his tune dramatically, offering a personal apology and saying that if he had done anything to worsen race relations in the city, “shame on me”.

I mentioned at the outset that the two men and the Police have reached an out of court settlement just weeks after the incident.  Both men will each receive a symbolic $1.  In addition they have secured a commitment to fund a pilot program to help young entrepreneurs in underserved communities.  One element of that program is training in financial literacy.

In response to the news of the settlement, Jim Kenney, the Mayor of Philadelphia said in a statement that he was “pleased” that the potential claims had resolved “in this productive manner” and that specifically that rather  than spending time, money and resources to engage in a potentially adversarial process, Rashon Nelson and Donte Robinson approached the city and invited us to partner with them in an attempt to make something positive come of this”.

In my opinion, this was a fantastic settlement and a great credit to both the men and the Police Force.

In my experience, those unlawfully arrested by the Police are not normally seeking financial  compensation to enrich themselves but rather a public recognition that they were wronged and ensuring that lessons will be learnt to prevent others from having to share their experience.

Sadly, such a positive and proactive approach to settlement is rarely, if ever,  taken by Police Forces in England and Wales.  I have previously written about the policies adopted in response to claims against the Police.  (click here)

In fact, I am currently embroiled in an ongoing case for another young black man against the Metropolitan Police that exposes the significantly different approach adopted in this country.

On 22 December 2012  my client who I’ll refer to as  Zahi  was walking his dog in a park in London whilst having his lunch.

To his sudden surprise, Zahi  noticed a male proceeding towards him at a pace from across the park, waving his arms in an animated manner.

The male continued to approach Zahi and stopped in very close proximity to him.

The male asked Zahi what he was doing in the area.

Zahi stated that he was simply having a sandwich while his dog exercised a short distance away.  In response, the male replied, “Ok for that smart answer, I’m going to search you”.

At this time, Zahi  noticed that the male was carrying a Police badge in his hand and assumed that he was a Police Officer, albeit in plain clothes.  Indeed, we now know that the male was PC B.

Although PC B appeared to be holding a warrant card, but this was not produced or shown to Zahi  nor did PC B actually identify himself as a Police Officer, nor did he provide his name or  the station to which he was attached (details which he is required by law to give when carrying out a search).

Zahi said to PC B words to the effect of “What have I done to warrant being searched?”  PC B replied the words to the effect of “In my eyes you look suspicious” and “I believe that you’re concealing something”.  Zahi considered PC B’s justification to be unsatisfactory and Zahi was of the view that the proposed stop/search was actually motivated by reason of racial profiling.

PC B proceeded to request further assistance via his personal radio. Zahi queried with PC B as to whether it was genuinely necessary to request further assistance, as it appeared to him that such a response was wholly disproportionate.  Zahi  pointed out to PC B that at no point had he refused to be searched, but that he had merely requested reasons why he should be searched.  PC B asked Zahi whether he would consent to being searched, to which Zahi confirmed that he would, albeit that he had never refused in the first place.

PC B subsequently cancelled his request for assistance but instead requested that a patrol car pass by and check on him.  PC B proceeded to carry out a pat down search on Zahi.  The search proved negative.

Once the pat-down search had been completed, PC B took hold of Zahi by his arm and instructed Zahi that he would not be permitted to leave until colleagues had arrived.  Soon afterwards, two plain clothed individuals arrived at the scene, one male and one female.  Zahi now knows that these individuals to be PC S and PC T.

Upon arrival PC S and PC T, PC B advised Zahi that he would be taken away for a strip search.  Zahi  asked PC B why a strip search was necessary.  Zahi  attempted to explain his concerns to PC B that his dog was wandering about, without supervision.  PC B stated that his only concern was that of Zahi  himself.  As Zahi was attempting to converse with PC S, he was grabbed from behind by PC B in a chokehold manoeuvre, which immediately began to restrict his breathing.  As Zahi struggled for both breath and balance, he was aggressively forced to the ground, landing heavily on his chest, under the weight of PC B.  PC B maintained the chokehold, despite the obvious distress exhibited by Zahi.  As he did so, PC B taunted  Zahi with goading remarks including “Look at you now” and “You’re nothing”. Finally, in an effort to relieve the pressure by PC B, Zahi frantically tapped on the ground, indicating his ‘submission’. As a result, PC B slowly loosened his grip on Zahi only to ask rhetorically “Do you give up?”  Zahi made it clear that he was offering no resistance to PC B who went on to retort “You’re not such a tough guy after all!”

Neither PC S or PC T made an attempt to stop or restrain PC B but simply stood back and watched.

Whilst on the ground, PC B applied handcuffs to Zahi in the rear position before pulling Zahi onto his feet.  In the process, PC B caused Zahi additional pain to his shoulder.  Zahi believes that he was on the floor in a chokehold for approximately  90 seconds.

Once on his feet, PC B attempted to usher Zahi  towards some nearby bushes.  However, PC S finally intervened and stated to PC B that he had “gone too far” and escorted Zahi towards an unmarked Police vehicle and then to the nearest Police Station.

PC B and PC S took Zahi to a room where his handcuffs were removed and he  was strip searched during which he was obliged to squat, turn around and then bend over.  Zahi understandably felt extremely embarrassed, humiliated and degraded.  After, he was allowed to dress, he was issued with a Stop form and left the Police Station via the rear exit, after making it clear that he wanted to lodge a complaint about what had been done to him.

Within a few minutes of leaving the Police Station, Zahi received a telephone call from PS A who stated that she was responding to his complaint.

Following ‘investigation’, PS A prepared a Complaint Investigation Report, under cover of correspondence dated 15 April 2013.

Not content with the conclusion reached by PS A, Zahi submitted an appeal to the IPCC.  Following an appeal assessment, the IPCC upheld Zahi’s appeal and directed a reinvestigation.

In accordance with the IPCC decision, PS C was appointed to reinvestigate Zahi’s complaints.

On 19 June 2014, PS C dismissed the complaints made by Zahi  in their entirety.

On 14 July 2014, the IPCC upheld the appeal and directed a further investigation.

DI D was subsequently appointed to have conduct of the third complaint investigation.

DI D reported on 13 February 2015, partly upholding the complaint on a limited basis, this being that compulsory records for the authorisation of the strip search were absent and that PC B had failed to provide his details to Zahi.  Aside from the limited findings in favour of Zahi, DI D dismissed the majority of the complaint.

On 16 April 2015 the IPCC upheld, for the third time, a further appeal.  On this occasion, the IPCC determined that further investigation by the Metropolitan Police would be inappropriate and appointed themselves to carry out an independent investigation.

By a report dated 12 May 2017, the IPCC concluded that PC B had a case to answer for misconduct.

On the 19 January 2018, PC B appeared at a misconduct meeting at which all allegations of misconduct were dismissed.

You’ll appreciate that this stop and search and then strip search at the Police Station lasted no more than an hour or so and yet the complaint investigation lasted more than 5 years.  5 years!

Throughout, the Met and their Solicitors have argued that Zahi’s proposed civil claim for false imprisonment and assault/battery should be stayed, i.e. put on hold pending the outcome of the complaint process.

I have only recently been instructed.  The civil claim is now underway and in response the Met have denied liability maintaining that the stop and search and strip search at the Police Station were perfectly lawful.  Notwithstanding this, and no doubt conscious of realities, the Solicitors for the Met have in fact put forward an offer of settlement.

Had the Metropolitan Police adopted a proactive and conciliatory approach to this case shortly after it had occurred, I believe a prompt and proportionate outcome could have been achieved.  Instead, after the unrepentant attitude and pro- police bias displayed in the long sequence of complaint ‘investigations’ (or should we say ‘rejections’)  my client is left feeling more angry and resentful  towards the Police and determined to pursue his case through the Courts. As the example in Philadelphia shows us, it is quite possible for early and amicable settlement of a claim if Police authorities are willing to hold their hands up and say sorry, rather than spending massive amounts of time and financial resources on shielding one rogue officer from criticism; sadly, as many of my clients know from bitter experience, the latter approach is almost always the Metropolitan Police’s playbook in response to misconduct incidents.

And this is going to end up costing them a lot more than 2 dollars.

“Caught out” – can the Police Custody Record be trusted?

It is a requirement of Code C of the Police and Criminal Evidence Act 1984 that a detailed Custody Record, now generally computerised rather than handwritten, is kept throughout a person’s detention in Police Custody, from the moment their detention is authorised by a Custody Sergeant until they are released either without charge, on bail, or alternatively transferred to the custody of the Court.

The Custody Record is an invaluable tool for ensuring that a person’s rights are upheld whilst they are in detention and is there to ensure that those rights are not infringed and that everything is done ‘by the book’ in terms of ensuring that they are not detained for an excessive period without being charged, in ensuring their safety from illness, injury or self harm whilst in custody and that all of the rights to which a detained person is entitled such as access to a solicitor as well as the more basic human needs of being provided with food, drink and access to a toilet are maintained.

The purpose of the Custody Record is to ensure compliance with the law and that there is respect for the dignity of the detainee throughout.

Of course, it is not the detainee who completes or has any input into what is recorded in the Custody Record.  All of the entries in the Custody Record are made by police staff, generally the Custody Sergeant, but also other officers, including Civilian Detention Personnel and higher ranking Officers such as Inspectors.

The Custody Record is generally the first document which I will obtain when I am instructed by a client who believes he or she may have a case against the Police, and I will check it to ensure that their rights have not been infringed and to see upon what grounds the police justified their arrest and detention.

Many times after reviewing this document with my clients, I have had clients say to me that they believed their Custody Record was not accurate, in that important information had been omitted or in fact that some entries had been falsified.

Sometimes, for example, the complaint which a client tells me they made against the Officers who arrested them, and who may have been heavy-handed towards them, is not recorded, or is not fully recorded  to the extent that my client recollects.

Sometimes, my clients also report that the timings of various entries are inaccurate and that they were not (for example) visited as often as they should have been to check upon their welfare, or to update them as to what was happening with their detention etc, despite entries in the Custody Record claiming that such visits took place.

Whilst I have long suspected that the Custody Record is a one-sided document, and can sometimes be falsified to the advantage of the Police and disadvantage of the detainee, it is rare to be able to find concrete evidence of this.  Such evidence however, has come to light in an ongoing claim which I am bringing on behalf of a client against Thames Valley Police.

My client was arrested and taken to his local Police Station, where he arrived at 03:04 on 11 July.  He was suffering severe injuries having been bitten multiple times by a Police Dog prior to his arrest and a decision was then made to transfer him to  Hospital at 03:25 on 11 July, where he remained until 18:52 on 13 July undergoing treatment.

In light of that information you may now be surprised to read the following entries which I have taken from the custody log, all covering the period whilst my client was in hospital –

11 July

 05.31                     Detained Person (DP)  visited in cell, he was asleep, all was in order and he was breathing freely.

06.27                     DP visited in cell, asleep, all in order and he was breathing freely.

10.03                     DP’s detention had been reviewed by  Inspector H, review was overdue due to operational commitments.

18.41                     Inspector is aware of review but is currently having technical issues.

18.54                     Remote review – late entry – I am aware that DP is currently in hospital to have an operation … and I am aware that his PACE clock is suspended but his detention is being reviewed … I authorized continued detention in order to establish of sufficient evidence to charge by way of interview.

23.34                     Remote review – DP in hospital (essentially as above) – Inspector R .

 

12 July

08.28                     DP had been visited in cell, was asleep all is in order and he was breathing freely.

08.47                     With regards to above cell check entry – entered in error as DP still in hospital for treatment.

08.47                     Review conducted by C. Inspector A… I am satisfied the arrest is lawful and proportionate and the investigation is being carried out diligently.  The DP is not available at the moment because he is at hospital receiving treatment for dog bites …. Continued detention is authorized (etc).

17.59                     Inspector K – DP is currently in hospital having an operation… when DP has returned from hospital he is to be informed of review and reminded of his rights … continued detention is authorized (etc).

 

13 July

00.21                     Inspector K records that DP’s detention has been reviewed in the same terms as the entry timed at 17.59h above.

07.30                     DP has been visited in cell.  Was asleep, his breathing had been seen and all was in order.

07.53                     Last entry recorded in error.

08.08                     Inspector C – review of detention carried out.  DP asleep.  Continued detention is authorized … when awake DP to be informed of review and reminded of rights.

14.52                     Inspector C– review of detention carried out.  DP away at hospital.  Continued detention authorized (etc).

18.52                     DP returns to police station from hospital.

 

These entries are quite shocking are they not?

In no less than 5 of those entries it is falsely stated that my client had been visited in his cell, and observed to be asleep and breathing freely and all was in order.  In fact when each of those entries was made my client was in hospital and therefore anyone seen asleep in his cell at that time must have been a ghost or figment of the Officer’s imagination.

Joking aside, this is actually a very serious matter.  There is good reason why regular checks are carried out and why the Officer is supposed to ensure that they have observed the person breathing to make sure that they have not fallen victim to illness or injury, particularly in light of the fact that a lot of people who are brought into Police Custody are vulnerable individuals being placed in a very stressful situation – often people against whom violence may have been used (quite possibly lawfully) during their arrest, who may have injuries inflicted by the Police or other individuals before they came in, who may be drunk or under the influence of other drugs, who may have mental health issues, or who might suffer flare ups of existing health issues because of the anxiety inducing circumstances in which they have been placed (cardiac and asthmatic issues for example).

The impression gained from the entries cited above is that Officers were – perhaps routinely – not in fact carrying out the safety observations they should have been upon detainees but simply typing out false entries as a smoke screen to hide the fact that whoever should have been carrying out the review was in fact sitting with his or her feet up enjoying a cup of coffee and a donut …

The only other explanation is that the Officers were on each of the 5 occasions visiting the incorrect cell, which itself is quite shocking and no reason for reassurance.  As I have stated above, one of the key reasons for carrying out these regular reviews is to ensure the safety of the occupant in each specific cell.

As I have said above, the fact is, that it is only because my client was in hospital throughout this time that these entries can be exposed to be the clear falsifications which they are.  Many other times clients have expressed concern to me about entries in which it is stated they were asleep, saying that in fact because of the anxiety of their situation and uncomfortableness of the cell they did not sleep all night.  This does lead me to wonder how many times Officers will take shortcuts and simply not carry out the reviews which they are supposed to by law to ensure the safety of the people they have taken into custody.

It will be noted that the last of the incorrect entries was made by an Inspector C at 8:08 on 13 July.   For the very basic reason that it is falsely recorded that my client was asleep in his cell (when in fact he was in hospital) it does not appear that this review was genuinely carried out and this would in fact mean that even if my client had been validly arrested in the first place on reasonable suspicion of an offence, his detention would have become unlawful from 09:21 until the next time a genuine review by an Inspector was carried out (at 14:52).  This is because Section 40 of PACE requires reviews of a person’s ongoing detention (whilst they are pending charge) to be carried out by an Officer of Inspector rank or above  no more than 6 hours following the initial authorisation of detention, and then at intervals of no more than 9 hours thereafter.   In my client’s case such a review should have been carried out by Inspector Coburn at 09:21, but the false  entry at 08:08 indicates to me that the review was either not done at all, or improperly done.

This therefore gives me a strong basis to argue on behalf of my client that he suffered a period of false imprisonment amounting to just over 5 and a half hours on 13 July between the ‘false’ review and the real review.

This, the claim for false imprisonment, is only one aspect of his claim, which in fact centres primarily around the severe injuries he sustained when, in my opinion, an out of control Police Dog attacked him without justification.  However I am happy to be pursuing the false imprisonment aspect as well, because it is very important that the police are held to account in regards to all breaches of the law which regulates the rights of detained persons and the proper conduct of the police towards people who they have in their power and control.

We must not allow it to become routine for the Custody Record to be manipulated by the Police, nor to be regarded by Officers as an unimportant form filling exercise.  A true and accurate Custody Record, upholding a person’s rights to have their detention under regular review, and to ensure that their health and welfare is being properly monitored and maintained by the Police,  some of the most important ways in which, in a boring and  bureaucratic but also heartwarming way, we ensure the rights of all citizens are properly maintained and we do not slip towards the abuses of an unaccountable  ‘Police State’.

Fighting for Access to Justice

A significant issue when considering taking action against the police or any other Defendant is legal costs; both the Claimant’s own and those of the Defendant which could become payable should the Claimant issue court proceedings and the claim ultimately fails.

There is a significant disparity in arms between the ordinary citizen who believes they have been wronged by a Police Force, and each of our regional Constabularies on the other hand, who naturally have access to significant legal and financial resources beyond the reach of the vast majority of individuals in this Country. One of the fundamental tenets of our Civil Justice system is to protect and correct against such disparities having a negative impact on the delivery of justice – as enshrined, in the text of the Overriding Objective of the Civil Procedure Rules (“…ensuring that the parties are on an equal footing…”).

In personal injury claims, to ensure access to justice, Claimants can bring a case to trial without fear of being ordered to pay the Defendant’s costs  if their claim proves unsuccessful by reason of Qualified One Way Costs Shifting (“QOCS”).

However the remedy of QOCS does not cover claims for False Imprisonment, Malicious Prosecution, Trespass or breaches of the Human Rights or Data Protection Acts which are common causes of action against the police.

Legal Aid does still exist for claims involving false imprisonment or malicious prosecution, assault and battery and misfeasance in public office –  torts which are central to upholding the citizen’s rights in the face of misconduct by agents of the State.  But of course, Legal Aid is subject to a means test, and hence huge swathes of society are not financially eligible for it – i.e most of the working population. When Civil Legal Aid was reviewed in 2008, it was found that only 29% of the population qualified on their means, compared with 80% when Legal Aid was first introduced – and in the decade since, that percentage can only have declined further as eligibility criteria have been made ever more stringent.

Legal Aid gives those people who are eligible for it both a sword and a shield, in the sense that it will fund their legal costs and protect them from having to pay the legal costs of their opponent.  In terms of actions against the Police, and associated matters, for those who are not eligible for Legal Aid funding (which as I say are clearly the vast majority of the population) it is not so much the loss of the sword than of the shield that is the real problem.  In the absence of Legal Aid funding there is a viable alternative for those who cannot afford out of their income or savings the tens of thousands of pounds it often costs to bring a case such as this to a successful conclusion –  lawyers such as me who specialise in this area will assume the risk of taking meritorious cases on a no win, no fee basis.  So in that respect, access to justice is available for that swathe of the population between the very poor and the very wealthy – the middle class in general.

But what neither I nor other Actions Against the Police lawyers can replace is the loss of the ‘shield’ of Legal Aid.  Most legal expense insurance companies simply do not offer cover for claims of such a complex and high risk area of the law as actions against the Police (as oppose to often much more straightforward accident claims against private individuals) and nor are they likely to as the commercial incentive is lacking.  Prior to 2013 the claimant in an action against the police case could take out an insurance policy to protect themselves from the Defendant’s costs (payable if the case failed) and expect to recover the cost of that insurance (which could be in the region of £40,000 + if the case went all the way to Trial) from the Defendant if they (the Claimant) won.  In 2013, the Government changed the law so that legal expense insurance policy costs cannot be recovered from the other party even if you win your case, meaning it is simply ‘not economic’ to take such insurance out, even if you could find an insurer willing to cover your case – as it would wipe out your damages.

It is quite normal for the damages award in a meritorious claim against the Police to not exceed £25,000 (bear in mind that the Thompson & Hsu v Commissioner of Police guidelines (allowing for inflation) set a ceiling of £5,640 for basic damages for 24 hours false imprisonment, and a maximum of £18,799 for a malicious prosecution going all the way to a Crown Court trial over a period of years). There are of course much wider benefits both to the individual Claimant and society as a whole conferred by the successful litigation of such a claim  – vindication for the individual, the reinforcement of his or her sense that justice will be done and that the social contract is not dysfunctional and the holding to account those who abuse positions of power; by means of proper public and judicial scrutiny, ensuring that those invested with authority by government remain within the bounds of the law and thereby preventing, or reducing as far as possible, future incidents of misconduct. Thus, civil legal actions in this field are one important answer to the age-old question “Quis custodiet ipsos custodes?” or “Who polices the police?” As my colleagues in the Police Action Lawyers Group wrote in submissions to Lord Jackson’s Review of Fixed Recoverable Costs (2017) –

These cases serve a crucial function in underpinning and upholding the rule of law by scrutinising the police and other state bodies with power to detain and prosecute. That scrutiny inevitably shapes how those bodies conduct themselves.”

It strikes me as bizarre that the remedy of QOCS which is in effect a ‘replacement’ for insurance policies is available only for those people pursuing personal injury claims arising from negligence and not for those who have suffered much more fundamental infringements of their rights – those who have been injured through targeted malice or deliberate infliction of violence by the police (rather than mere negligence), who have wrongly been subjected to the stress and torment of a drawn out criminal prosecution or who have wrongly been imprisoned in police custody, often for the very first time in their lives.

It is in my opinion clearly inequitable and unjust that Claimants in actions against the police claims do not have the same protection as is offered to road traffic accident victims by QOCS.  Indeed, the application of QOCS in its current format appears in significant contrast to that which was envisaged by its ‘originator’ Sir Rupert Jackson in his Final Report on civil justice reform in January 2010 when he specifically endorsed claimants in actions against the Police as an example of those who might well merit protection under the QOCS umbrella, on the grounds of social policy and because of the strikingly asymmetrical relationship between claimants and defendants in such cases – manifestly undeniable in terms of litigation power and resources.

Sir Rupert spoke in his Final Report of a “coherent package of interlocking reforms, designed to control costs and promote access to justice” – yet the non- application of QOCS to actions against the Police and other State authorities, as matters currently stand, means we have been left, at least in this field of law, with incoherence and an obstruction of access to justice – one reform (the removal of recoverability of ATE premiums) being implemented without the complimentary other (QOCS) – so rather than a neat interlock of reforms, we are left with something that is broken and semi- dysfunctional.

This is not just a theoretical problem.  In my practice I have seen clients scared away from pursuing what I believe to be strongly founded and meritorious claims against the police because they cannot take the risk of losing their house and savings if the claim does not succeed.  Any action brought against an agency of the State by a private individual is clearly one in which the Claimant is fighting an uphill battle, but the gradient up which he must struggle has now been made dramatically steeper (and the risks if he fails significantly greater) because – as it appears to me – the law was changed at a stroke and left those who have suffered from police misconduct hamstrung by the wayside.

I myself have represented Claimants who, after considering these risks, have decided only to pursue a claim for assault against the Police, when they have equally meritorious claims for false imprisonment and/or malicious prosecution, because an assault claim involving personal injury “alone” has the full protection of QOCS. One such example is a case in which I represented a young man of good character who had been savagely bitten by a Police dog, requiring hospitalization – from which hospital he was taken under arrest to a Police station, charged with affray, and subsequently prosecuted over many months before his innocence was vindicated at a Magistrates Court trial. This young man was in regular employment and hence did not qualify for Legal Aid; when faced with the costs risk of pursuing his claim to Court he therefore took the decision to proceed with his personal injury claim only – a decision based not on the merits of his potential claims for false imprisonment and malicious prosecution which I felt were strong – therefore not on considerations of the applicable law or the facts – but simply because of the present defective state of access to justice. My client could have faced financial ruin if he pursued those heads of loss and failed, because they carry no QOCS protection. I felt that this was a grave injustice; when the Police eventually settled my client’s claim (shortly prior to the trial of his County Court action) they only had to compensate him for the injuries inflicted by the dog attack – and not for his loss of liberty nor the immense stress of the prosecution they had brought against him – and thus they escaped proper scrutiny of their actions. I strongly believed that my client had only been arrested, and then prosecuted, to provide a smokescreen for the unlawful actions of the dog handling officer, but these issues never came before the Court for adjudication, plainly and simply because of the absence of QOCS. If my client had been impecunious, or if, on the other hand he had been a millionaire, he could have pursued the full range of legal action open to him; but instead he was really left with no choice but to present an artificially shrunken and limited case to the Court – how can this be called “access to justice” ?

I consider allowing this situation to continue unchanged to be completely indefensible.  It is obstruction of, not access to justice, that currently apply, certainly as they relate to actions against the police and the wider State.  This is surely at odds with some of the fundamental principles of our common law – the right of redress for the citizen who has suffered oppressive, arbitrary or unconstitutional acts by government servants in the form of infringement of their personal freedom and security, their rights to property and freedom from search and trespass, all of which are rights which helped bring into existence modern liberal democracy and which are essential for its continuance and robust health.

The need to address this has become ever more urgent since the recent High Court case of Robert Jeffreys v the Commissioner of Police of the Metropolis (2017)  made it resoundingly clear that on the ambiguous point as to whether QOCS protection applies to the whole of a claim which includes a personal injury element, or only to those costs which can be attributed to the personal injury claim, case law is coming down firmly in favour of the Defendant and is allowing the Claimant only a limited protection from QOCS. Mr Jeffreys brought claims for assault and battery, false imprisonment, misfeasance in public office and malicious prosecution – and was ordered to pay 70% of the Defendant’s costs when his claim failed, the Court determining that under the current framing of the rule, QOCS applied only and specifically to the costs of the assault claim. This is of grave concern as most police cases are hybrids involving, yes, on the one hand personal injury flowing from assault and battery, but also significant and complex claims for false imprisonment and malicious prosecution.  As I have said above, this then leaves lawyers in an artificial position where they need to advise their clients to consider dropping – and many people then will, as in the example I gave above –  all elements of their claim apart from the personal injury claim – potentially allowing Defendants to take away the liberty of individuals, and to subject them to significant psychological stress through false prosecution with impunity, because most people will not be able to take the financial risk of bringing claims in those areas of the law.

So what we are witnessing is a restriction of individual rights. Surely it was never the intention of those tasked with reforming – by which we must surely mean improving – our civil justice system, to give authorities such as a Police a type of ‘immunity’ from claims for false imprisonment, malicious prosecution and trespass ?

The Civil Justice Council did produce a report in March 2016 in which this very important issue was considered and I highlight the conclusions reached which were as follows:-

  • There are strong, if not compelling, arguments of principle –based on access to justice and on the asymmetry of the relationship between the parties – weighing in favour of extending the scope of QOCS protection (or something very similar) to claims against the police.
  • Principled arguments for not doing so do not appear to have been made out [There appears from the comments of the Working Group to have been a deliberate lack of engagement on this important issue by Police Forces and the lawyers who represent them – their silence speaking volumes I might say !]

Successive Governments have done a lot of tinkering with our civil law in recent years, a trend which looks set to continue; in regards to the issue I have set out above, I will continue to campaign for reform and fight for full access to justice for all victims of police misconduct.

In this respect, I recently met Sir Terence Etherton, the current Master of the Rolls and Head of Civil Litigation and specifically discussed this issue with him. Sir Terence accepted that he had not given this issue much consideration.  In the circumstances, I subsequently wrote to Sir Terence and attach his reply here:

Sir Terence helpfully suggests that he will be taking the points raised in  my letter up with the Government as part of the forthcoming review of Civil Justice in England and Wales.  For the sake of access to justice, let us hope that any representations that he makes are both listened to and acted upon and that QOCS is extended.

 

“I should never have been prosecuted. The Police Officer told lies.”

Establishing malicious prosecution is both difficult and complicated and it is a fact that although thousands of people are acquitted of offences of which they were accused every year, only a relatively small proportion of those people will have a viable claim for malicious prosecution.

Unlike claims for false imprisonment and assault/battery, the burden of proof lies upon the Claimant, i.e. it is for the Claimant to prove by the evidence available that the criminal proceedings brought against him were motivated by malice.

Whilst it should be easy enough to establish that the Claimant was prosecuted, that the prosecution concluded in his favour and that the prosecution resulted in damage to his reputation or freedom, the Claimant must also establish that;

  • reasonable and probable cause  were absent in the bringing of the prosecution; and
  • the police acted maliciously.

What does “Lack of reasonable and probable cause” mean?

This means a lack of either –

  • Actual belief in the guilt of the Claimant (a subjective evaluation; in other words, the Police knew the Claimant wasn’t guilty); or
  • Reasonable belief in the guilt of the Claimant (an objective evaluation; in other words, the Police should have known that the Claimant wasn’t guilty).

What does “Acted with malice” mean?

This means that the Claimant must show that the police were motivated by something other than a desire to bring the Claimant to justice, for example to conceal their own misconduct towards the Claimant.

Furthermore, Defendants are likely to robustly defend claims for malicious prosecution because of the political  and reputational fall-out of conceding the action.  The police are a public body and as such are rightly concerned not to be labelled “malicious”.

This discussion brings me onto a case that is presently ongoing.

On the day in question, my client Salman Khan attended at his local Police Station in order to collect items of property which had been taken from him following his arrest several months before. Fortunately, what happened next was caught on CCTV.

Mr Khan proceeded in a normal manner to the enquiry desk where he spoke with an enquiry assistant  who I’ll call Andrea, who advised that she would retrieve his items from the property store.

Thereafter Mr Khan waited calmly for the return of his property, spending the majority of the period outside the police station.

Upon her return to the enquiry desk, Andrea beckoned Mr Khan  towards a secure corridor which separates the enquiry area of the police station from the Custody Suite.

In the corridor, Andrea  provided Mr Khan with some property  (in bags) and thereafter requested that he sign what was purported to be a property sheet.

Mr Khan noted that the document being offered to him was not the original property sheet, but a copy. Mr Khan requested production of the original property sheet (which he had seen previously). Mr Khan was particularly concerned because a substantial amount of money had been taken from him by the Police at the time of his arrest and not yet returned.

Andrea continued to insist that the document in question was the property sheet, albeit that she accepted that it was not the original.

Mr Khan asked to speak to the Property Officer who he had seen previously.  Andrea refused. Mr Khan then requested to speak with an Inspector in order to complain.  Again Andrea refused.

After several minutes of discussion Andrea refused to discuss the matter any further and closed the side window of her office, leaving Mr Khan standing in the corridor with the property bags.

As Mr Khan remained waiting in the corridor a police officer emerged from the Custody Suite, proceeding towards the enquiry/foyer area.

Mr Khan explained to the officer that he wished to speak to a senior officer but was simply directed to return into the foyer to continue waiting.

As Mr Khan returned to the foyer, he attempted to engage with enquiry desk staff but they continued to be uncooperative.   Mr Khan, whilst asserting his unhappiness with the state of affairs (his missing property) and making it clear that he wished to speak to an Inspector,was neither shouting nor displaying any physical aggression. Indeed, his body language was relaxed and non-confrontational.  All of this is clear on the CCTV footage.

Two officers, PC A  and PC B then emerged into the foyer and walked towards Mr Khan.

Upon receiving a call on his mobile phone, Mr Khan then moved towards the seating area which was adjacent to the entrance of the police station in order to use his phone.

PC A then approached Mr Khan, stood over him and said to him “You’re in my grasp, you arrogant bastard.”

Mr Khan did not wish to argue with PC A and therefore walked to an empty seat, still attempting to use his mobile phone, and sat down next to other members of the public who were waiting.

As Mr Khan was sitting down, he commented to PC A “Go away” and in response PC A pointed aggressively towards him and shouted “Get outside, get outside!”

In response Mr Khan said to PC A that he was now in the presence of witnesses (in an attempt to get PC A to desist from his unreasonable behavior).  PC A then attempted to grab hold of Mr Khan’s arms.

Mr Khan recoiled from PC A’s grasp, and got to his feet in a natural attempt to escape PC A’s assault. At no point, did Mr Khan  in any way attempt to strike out at PC A. PC A then pushed/ shoved Mr Khan and pursued him in an aggressive manner towards the door.

PCs A & B now attempted to put handcuffs on Mr Khan and also kicked Mr Khan’s  leg.  In response Mr Khan ran away from PC A. He had no idea why the Officers were doing this to him. PC A  had not stated that Mr Khan was under arrest.

Mr Khan was now pursued across the grounds of the police station by PC A and PC B and numerous other officers.

Mr Khan was sprayed with PAVA gas, handcuffed and returned to the police station where he was escorted to the Custody Suite.

During the pursuit, Mr Khan merely attempted to evade the officers by running behind trees and weaving to avoid their grasp, as if playing a game of ‘tick’ (albeit with sadly higher stakes than most playground games). He did not display any physical or verbal aggression to the officers and did not attempt to strike any of them.

Upon Mr Khan’s  presentation before the Custody Sergeant, PC A stated his grounds of arrest which were recorded as follows – “He has become aware of shouting and swearing at the front desk and has attended at that location with arresting officer and sees DP verbally abusing front desk clerks over matters to do with his property.  DP is warned regarding his conduct but ignores requests to desist by continuing to shout, swear and bang on the counter.  Arresting officer  attempts to remove DP from the police station and in doing the DP attempts to strike the arresting officer.  DP is restrained and arrested for disorderly behaviour contrary to Section 5 of the POA 1986, but runs away and tries to hide behind a tree”.

During his presentation of Mr Khan to the Custody Sergeant PC A  can clearly be heard to make the following false accusations against Mr Khan –

  1. He started waving his hands about and towards me
  2. He’s got up and come back towards me
  3. He is throwing his arm out towards me again
  4. I told him I’d remove him at which point he started throwing a fist at me
  5. As I’ve pushed him out of the Police Station, he’s continued to throw his arms about
  6. He started making a fist so I pushed him away

Mr Khan was detained for a few hours before being released on bail so that further enquiries could be made.

When Mr Khan did return to the police station,  he was charged with an offence contrary to Section 4A of the Public Order Act 1986 and bailed to appear at his local Magistrates Court.

Mr Khan subsequently pleaded not guilty and the case went to trial,  where  he was formally acquitted.  In their judgment, the Magistrates were highly critical of the evidence which had been offered against Mr Khan by police staff, describing that evidence as being“discredited by the CCTV footage”.

Mr Khan was advised to bring an action against the police.

Following an internet search, Mr Khan contacted me and asked me to take on his case.

On his behalf, I intimated a claim for false imprisonment, assault and battery, malicious prosecution and/or misfeasance in public office.

Notwithstanding the obstacles that he faces, Mr Khan has issued court proceedings. Indeed the Police have now admitted falsely imprisoning Mr Khan, but continue to dispute his claim for malicious prosecution. As I alluded to above, I believe this approach on the part of the Police is because they do not wish to admit that their officers or staff  are guilty of telling deliberate lies as opposed to ‘merely’ making an error of judgment (as damages can be recovered for an unreasonable /incompetent arrest without needing to show it was malicious – unlike for a prosecution). The trial is a way off but in light of the available evidence I am confident that Mr Khan’s claim will succeed in its entirety.

Mr Khan’s case is  a fairly classic example of a malicious prosecution, where the Claimant alleges that the prosecution case brought against him was based on concocted Police evidence. Fortunately for Mr Khan, early efforts were made to secure and preserve both the waiting room and custody CCTV footage, which I believe will weigh heavily in his favour as the claim proceeds.   Not all such Claimants are so fortunate, and I am caused to reflect on the number of occasions Police Officers ‘fit’ someone up for an offence by telling deliberate untruths – often false allegations that they were assaulted or obstructed by the person – without being caught out by the unblinking eye of video evidence.

Please note that for the purposes of anonymity, all names in this blog have been changed.

The problem of self-diagnosis

There  is no generalised principle of liability for police failings only a series of specific torts and Statutory Provisions, each governed by its own conditions.  In order to qualify for a right to compensation, Claimants must be able to present their claims in such a manner that they fit within the structure of an existing tort or law.

In the ‘Google age’  in which we live,  because information on the web is so unfathomably plentiful, so readily available, and so disorganised, it’s easy for the layman to jump to conclusions as to what heads of claim are available to him.  A lot of the legal information available for free online is, in fairness, accurate and reliable.  The problem, however, is that even though that information is reliable, legal issues are complicated and someone without a legal background may come to the wrong conclusions.

This position is aggravated by the fact that some individuals who have been let down by the Criminal Justice System  don’t necessarily trust the advice of solicitors and barristers that they approach.

A case in point is that of a client whose case is presently ongoing. He was arrested and during the course of his arrest was CS gassed, manhandled and then handcuffed before he was taken to the Police Station and detained for several hours before being released with no further action.

Here’s what happened.

On the date in question, my client was in the City Centre. At or around 14:35, he encountered his uncle, by chance.

Following a short conversation between my client and his uncle, my client and his uncle agreed to share a drink in a local park.

My client and his uncle purchased some cans of lager and made their way to the park where they sat on a public bench.

My client opened his can of lager and began to drink from it.  As my client and his uncle were sitting on the bench, an unknown man approached and joined them.

At or around 15:00, my client became aware of the presence of two Police Community Support Officers (“PCSO”).  One of the PCSOs approached the ground and requested that they refrain from drinking alcohol and mentioned that the area was a designated public place.

My client said that he was unaware that he was not allowed to drink in the area and asked if there were any notices in the area to inform members of the public of this law.  The PCSO said that there were notices in the area but that he did not know where they were.

My client placed the open can of lager underneath the bench on which he was sitting.  The PCSO did not at this stage ask my client to surrender the can of lager and my client did not consume any more alcohol.

The PCSOs stood some metres away from my client, his uncle and the third man, occasionally glancing over at them.

After several minutes, one of the PCSOs approached my client again and informed my client that he had a right to confiscate his drink.  The PCSO then picked up the can of lager from beneath the bench on which my client was sitting .

My client, believing that he had complied with the PCSOs instruction not to consume alcohol, thought it unnecessary and inappropriate for the PCSO to attempt to confiscate the can.

My client therefore also took hold of the can of lager that the PCSO was holding.

Since my client and the PCSO both now had hold of the can of lager and were attempting to take possession of it, some of the contents of the can of lager spilled over my client and the PCSO.  The PCSO eventually released his grip on the can.

My client proceeded towards a public bin, emptied the remaining contents of the can of lager into a flowerbed and placed the empty can into the bin.  My client then walked back to the bench and collected  his possessions.

My client announced that he was irritated and that he was leaving and began to leave the park.

The PCSO followed my client and told him that he had called the police to speak with him.  My client then left the park.

As my client was crossing a nearby street, two police officers ran towards my client.  Both officers were wearing plain clothes. What happens next is caught on police officer body cameras.

One officer, PC B introduced himself to my client.

Without identifying himself as a police officer, PC B told my client that he was under arrest for assault.  My client was shocked and surprised and said, “Assault?”

The officers then began to try to handcuff my client. He was then told to hold out his arms or he would be sprayed with CS.

My client asked, “Who did I assault?”

PC B then deployed his CS incapacitant spray on my client, at an extremely close distance.

My client turned away from the CS spray, before turning back to face the officers.  PC B then sprayed my client with the CS spray for a second time.

My client asked again, “Who have I assaulted?”. 

The officers took my client to the floor and held him on the ground.  My client told them, “I have assaulted no one”.

My client was handcuffed and  then escorted to a police vehicle before being transported to the nearest Police Station. As he was led away, some members of the public who had gathered to watch queried the actions of the police officers.

At the Police Station, it was recorded on my client’s custody record that he had been arrested for ‘Assault Person Assisting Constable’.

My client was thereafter interviewed.  He provided a full and detailed account, in which he denied assaulting the PCSO.

Both I and my client agreed that he had viable claims for false imprisonment and assault/battery but my client also wanted to bring a claim for other heads of claim.

What were those other heads?

Breach of Article 5 Human Rights Act, i.e. the right to liberty.

Yes, it’s true that my client’s liberty had been interfered with but he had a perfectly valid claim for false imprisonment so why bother with an additional claim under the Human Rights Act?  People get very excited about establishing a breach of Section 6 of the Human Rights Act but the fact is that establishing a Common Law Tort, i.e. false imprisonment, results in a significantly higher compensation award than under the Human  Rights  Act (and there is no double recovery, i.e. you can’t  recover damages for both false imprisonment and breach of Article 5 of the Human Rights Act in respect of the same act of imprisonment).

Misfeasance in Public Office

To establish misfeasance, my client (and the burden of proof lies on him as the Claimant) would need to show that the officers exercised a power;  and that they intended to injure him by their acts; or the officer knowingly or recklessly (in the subjective sense) acted beyond their powers; and the officers’ act caused damage to the Claimant; and the officers knew or were subjectively reckless to the fact that their act would probably cause damage of the kind suffered by the Claimant.  But in this case, there was no clear evidence of bad faith (or in other words, malice) by the arresting officer.  In the circumstances, there was no merit in pursuing such a claim.  The correct level of compensation can much more easily be obtained by suing in the tort of false imprisonment where there is no need to establish deliberate malice on the part of the officer/s (as opposed to incompetence, mistake or misjudgement).

Malicious process

My client realised that because it had been decided at the Police Station that no further action should be taken, he wasn’t prosecuted and therefore he couldn’t pursue a claim for malicious prosecution.  Instead, he sought to persuade me that he might have a claim for malicious process.  Malicious process is established where the Police instigate a process against an individual that falls short of a prosecution. The most common example is when the police apply for a search warrant. This did not apply to my client’s case. He was arrested by the officer  who was using his general powers granted by the Police and Criminal Evidence Act.

Defamation

This enables an individual to sue a person or organisation for damage to his reputation. Here my client had been arrested (and therefore detained) and so compensation for damage to reputation is included in the claim for false imprisonment, and I therefore explained to him that an additional claim in defamation would be redundant /unnecessary.

Pursuing a claim should be a collaborative process between the client and his lawyer but it is essential  in my opinion that ultimately the client heed and follow his lawyer’s advice.

Following a lengthy discussion, I am pleased to report that my client accepted my advice and accepted that his “self diagnosis” was inaccurate; his claim was rightly limited to false imprisonment and assault/battery only.

One final word on this issue.  The Claimant who establishes some heads of claim but not all, can be penalised in costs, for the Defendant Police Force will assert that the Claimant was only partially successful and therefore should not be awarded his costs in full.  There would then be a reduction in the award of damages to cover any costs awarded to the Defendant. In short, a wise claimant will pursue the strongest heads of claim only, following full and considered advice of his lawyer.

My client’s claim continues. The Defendant has filed a robust defence and the case proceeds to trial. I am confident of success.

Presumption of Innocence Restored?

According to a recent report in the Mail on Sunday, the Police are “to drop their controversial policy of automatically believing anyone who reports a crime”.

The College of Policing have apparently produced new guidance for Police Officers encouraging them to be open-minded and impartial but not automatically assume that ‘victims’ are telling the truth.

In my opinion, such guidance cannot come too soon. I am aware of a number of miscarriages of justice that have arisen since the adoption of this ‘believe all’ policy.

The policy arose after the Jimmy Saville scandal when it was established that police had previously not taken seriously many rape and sex abuse claims and had too much power to decide whether or not allegations should be investigated.

Following review by the HM Inspectorate of Constabulary in 2014, it was reported that there was a national under–recording of crime by nearly 20%. In this context, the Chief Inspector, Tom Winsor recommended that “the police should immediately institutionalise the presumption that the victim is to be believed”.

This recommendation led Police Forces to adopt what the previous Metropolitan Police Commissioner, Sir Bernard Hogan-Howe later described as “requiring officers to assume an allegation of abuse is truthful” ie to investigate an allegation on the basis that the crime had been committed and the alleged perpetrator is guilty.  (Radio 4 interview on the Today programme on 11/2/16.)

Not only was this a fundamental shift in policy away from the long-standing practice of the assumption of innocence until proven guilty, it was a misunderstanding of Mr Winsor’s recommendation. His recommendation was in the context of recording crime in official statistics not of how claims should be investigated. Indeed, it led to Mr Winsor to write to Sir Bernard Hogan-Howe advising him of this error and how “the two should not be conflated”.

Sadly, this misguided policy appears to have been very much in the minds of those officers investigating an allegation of rape made against my client, Joe Lovell (name and some details changed) in July.

My client a man of exemplary character, was engaged by his firm to carry out certain works at an address in London on 8 July.  He duly attended, and met the female occupier Miss R and carried out the necessary works.

From the outset, there was an instant connection between my client and Miss R and the two exchanged contact numbers and made arrangements to meet at her address, the next day, the agreed purpose for which was for sexual activity to take place.

My client contacted Miss R on the 9 July to confirm his attendance, arriving shortly after 7.00pm.

On his arrival, Miss R answered the door to the address, appearing with nothing more than a bath towel draped over her.

Mr Lovell was invited into the address, whereupon Miss R began to initiate intimate behaviour, kissing my client and then inviting him upstairs.

My client then engaged in full consensual intercourse with Miss R, she providing him with a condom by means of contraception.

Following intercourse, my client left the address, indicating he would be in touch with Miss R at a later date.

Between the 14 – 18 July, Mr Lovell was out of the country to visit family and friends.

On or about the 16 July, my client was contacted by Miss R, and accused of committing a burglary at her address. Upon his disclosure that he was out of the country and had been for several days, Miss R then suggested that whilst he may not have personally participated in the burglary, but had otherwise orchestrated this to take place.

My client rejected any notion of any involvement in any burglary which may have taken place and went so far as to invite Miss R to provide his details to the Police, if she was convinced as to his alleged involvement.

My client received no Police contact with regards to the alleged burglary.

Miss R went on to report the alleged burglary on the 16 July, making no reference to any other alleged offence to have taken place.

On the 23 July, Miss R was advised by the police that due to there being insufficient evidence to identify any suspect, the burglary investigation was to be closed.

Surprisingly, on being advised that no further action was to be taken, Miss R then chose to allege to the police that she had been raped by my client on the 9 July and wished to pursue a formal complaint.

On the 24 July, Miss R spoke to officers, reaffirming her allegation of rape  and subsequently attended her local Police Station where she provided a full account of her allegation, by means of a video recorded interview.

On the 28 July, officers attended my client’s place of employment, whereupon he was arrested on suspicion of rape, in the presence of his colleagues and taken into Police custody.  The justification to arrest being based on reasonable suspicion and in order to carry out “a prompt and effective investigation into the allegation”.

He was detained for just over 5 hours before being released on Police bail.

On the 8 December, an evidential review was carried out  by the Police which concluded that there was insufficient evidence on which to proceed, the case not reaching the evidential threshold.

My client was devastated by his arrest and detention, his period on Police bail whilst awaiting confirmation as to his fate and of even greater significance, the fact that he now had a Police record; his name, fingerprints and DNA now being stored on the Police National Computer.

He knew that the allegation of rape was that of a liar and fantasist.

Mr Lovell lodged a complaint. Following investigation, a Senior Detective Inspector in the Sex Offences, Exploitation and Child Abuse Command dismissed the complaint finding that the arrest was both lawful and proportionate based on the account of the victim.  He went on; “the underlying principle of rape investigation, as set out by the Her Majesty’s Inspectorate of Constabularies is that “the police should immediately institutionalise the presumption that the victim is to be believed.  If evidence later comes to light which shows that no crime occurred, then the record should be corrected”.

In this case, the Police most certainly had a duty to record the alleged crime.  Thereafter, their job was to “test the accuracy of the allegations and the evidence with an open mind, supporting the complainant through the process”.  (Sir Bernard Howe; article in the Guardian 10/2/16 – “Suspected sex offenders have rights the police must respect”).

So was my client’s arrest “lawful and proportionate”?  The case is ongoing.  I accept this was a difficult case, the central issue being that of “consent” with two differing accounts provided.

But consider the following undisputable facts:-

  1. The failure of Miss R to make any reference to such an extremely serious offence in the immediate aftermath of the 9 July.
  1. The failure of Miss R to allege that she had been raped when reporting the burglary on the 16 July.
  1. The remarkable timing of the allegation of rape, occurring only after notification had been given to Miss R that no further action would be taken in respect of the alleged burglary.
  1. The disclosure to the Police by Miss R that she had voluntarily provided my client with a condom.

The Metropolitan Police openly accept that upon notification of the alleged rape, they applied the “Believe all” policy that they had insisted after misinterpreting the recommendation of Her Majesty’s Inspectorate of Constabularies (as explained above). I believe that this materially affected their subsequent investigation and decision to arrest my client.  Had they instead approached the case with an open mind, perhaps they would have realised either that there was no merit in the allegation or alternatively that rather than arrest, they could and should have sought to proceed by way of voluntary interview thus avoiding my client’s distressing and humiliating arrest in front of friends and work colleagues and leaving him stigmatised with a Police record.

The presumption of innocence is fundamental to the health of the Criminal Justice System in a modern liberal society. “It is better that 10 guilty persons escape, than that 1 innocent suffer” wrote William Blackstone in Commentaries on the Laws of England in 1765 and this principle is enshrined not only in English common law but in Article 6 of the European Convention on Human Rights and underpins much of the US constitution.

Clearly no one wants to return to the ‘bad old days’ when police officers – invariably male–turned a blind eye to accusation of child abuse, and treated many rape victims with disbelief and hostility, but we cannot go from one extreme to the other. Every case could and should be investigated by the Police with an entirely open mind. My client is not, I suspect, the only person to have fallen victim to the Metropolitan Police’s misguided and blinkered policy.