Delays and disruptions to many people’s summer holiday plans have been in the news recently as climate change, post-Brexit borders, and the post-Covid travel industry’s problems combine to create backlogs, queues and cancellations at airports, railway stations and ferry terminals.
A far worse experience than lost luggage or hours of waiting afflicted my client Tom Smith, however, when he was subjected to an unlawful arrest at Manchester Airport earlier this year.
One evening in April 2022, Tom flew into Manchester Airport from Amsterdam after a short break with a group of friends.
Having passed through passport control, Tom was approached by several police officers, who advised he was under arrest and handcuffed his hands behind his back. Tom complained that the handcuffs were too tight but was ignored.
Humiliatingly, the arrest took place in front of Tom’s friends, and one of the officers took it upon himself to inform Tom’s friends that Tom was being arrested for failing to surrender at court.
Tom was then led through the airport. Adding to his distress, a number of fellow passengers recorded his arrest and escort through the airport on their phones; he couldn’t believe what was happening to him and was very conscious that everyone witnessing this – both strangers and his friends – must be thinking “There’s no smoke without fire”. He was worried that his face would be all over social media, having been made subject to such a public ‘parade of shame’. Tom was then transported to Cheadle Hulme Police Station.
Tom had never previously been arrested and was shocked and frightened by events. He had recently received a fine for speeding and could only think that his arrest must relate to that.
At Cheadle Hulme Police Station, Tom established that he had been arrested in respect of an outstanding warrant for failing to attend Tameside Magistrates’ Court earlier that month. Tom sought to explain that this must be a mistake, but to no avail.
Tom was processed and searched and then advised he would be detained overnight and produced before the court the next day.
After several hours in custody, Tom was taken for fingerprints whereupon it was established that there had indeed been a mistake; the custody record contains the following entry at 4.18 a.m-
DP [Detained Person] has now been printed and is no trace on the fingerprint system. It appears the wrong male has been arrested. To be released asap. Mancro will be informed to re-circulate the wanted male.
Eventually, in the early hours of the morning, Tom was released from custody having been held against his will for nearly 5 traumatic hours.
Tom found his experience in custody extremely distressing. I am now in the processing of commissioning medical evidence to assess the full extent of the psychiatric impact this incident has had upon him; there is no doubt however that it has caused Tom great anxiety and embarrassment in both his personal and professional lives: his relationship with his girlfriend was strained, and he felt very stressed about having to tell his boss that he had been arrested- albeit quite incorrectly. I will be seeking a significant compensation award from Greater Manchester Police for what appears to have been a gross error on their part, mixing up Tom’s data/ identity with that of the ‘real’ wanted man.
This is far from being the first “mistaken identity” arrest at an airport in which I have been instructed – despite the deeply ironic fact that airports are the one location where people habitually carry their passports and thus where their real identity is very easy to ascertain. If you or anyone you know has suffered in a similar fashion, please contact me for advice and expert representation.
I am pleased today to provide an update on a case which I first blogged about in December 2020, regarding Police abuse of ‘Coronavirus powers’ during the early days of the Lockdown. In that blog, as the case was ongoing, I identified my client only by the pseudonym of “Dwight”. In this blog I will refer to him by his real name of Desmond Acquah.
Desmond is a Black man and a British Army veteran who gave almost 10 years of service to this country, including a tour of duty in Afghanistan, service which ultimately saw him being discharged from the army on medical grounds.
At the beginning of the Coronavirus Lockdown in March 2020, Desmond was continuing to serve the British public at risk of his health as a key worker on the railway network, at a time of surging Covid infections.
At around 2 am on 26 April 2020, Desmond was just arriving home in Portsmouth after a 12-hour shift at work, and wanted nothing more than to check on the welfare of his pregnant partner, and then get his head down and sleep.
However, as he drew close to his home, Desmond noticed a marked Police van begin to follow his BMW car.
Desmond pulled up in his normal parking spot near his flat, and the van pulled up behind him.
Two Officers of Hampshire Constabulary, including PC Thisby, then alighted from the van and approached Desmond’s car.
They demanded Desmond’s name and he asked them, “Why, what’s going on?”
PC Thisby replied, “Well because you’re out and about at 2 o’clock in the morning, there are restrictions in place on movement at the moment because of Coronavirus and so I am just asking for your details”.
Desmond explained that he was a key worker and had just come from work.
PC Thisby then asserted that he needed Desmond’s details to check that the Claimant was a key worker and that if he refused Desmond could be arrested for contravening the Coronavirus rules. This was nonsensical as there was no ‘database’ of key workers that the Police had access to, and Desmond was simply not under any obligation to provide his name.
Desmond considered the Officer’s request unreasonable and intimidatory. He explained that he had just come from work on the railways, he was tired and wanted to go to bed. He removed from his car a small ruck sack, his work clothes, boots, and a coffee canister.
PC Thisby then threatened to arrest Desmond for failing to provide his details under the “Health Protection Coronavirus Restrictions Regulations 2020”.
Desmond felt harassed and decided to call his manager for assistance. At this, PC Thisby grabbed Desmond’s jacket/right arm and said, “Put your phone down. You’re under arrest”.
Desmond protested “For what? You shouldn’t be touching me” to which PC Thisby replied, “For failing to provide your details”.
Both Officers now forcibly restrained Desmond and pushed him up against a wall. The second Officer applied handcuffs to the Claimant’s right wrist.
Desmond was incredulous and immediately said “Take the handcuff off, I will give you my name”. The second Officer said “Just give us your name first” to which Desmond advised his name and again requested the Officers to remove the handcuffs. The Officers agreed and the handcuff was now removed. Desmond pulled away and accused the Officers of harassment.
However, PC Thisby persisted in asking for Desmond’s “details” and demanded his address.
Desmond was now highly agitated by reason of the Officers’ actions and the conversation continued as follows:
Desmond: “You have got no fucking reason. I am going to take your fucking number, you have got no fucking reason to arrest me. I just fucking finished work”.
PC Thisby: “Do you want to get arrested?”
Desmond: “Arrested for what? I’ve been up since fucking 7, I have done a fucking 12 hour shift”.
PC Thisby: “Desmond, I have warning you now if you carry on like that you will be nicked for a Public Order Offence”.
Desmond: “Well that’s what you wanted ain’t it?”
PC Thisby: “Say again”
Desmond: “I just driving from work, I am going to fucking….”
PC Thisby: “Calm down”.
Desmond: “Calm down, what you say fucking calm down for? What cos you’re a Police Officer you think you’re what, the law. You’re a fucking citizen yourself. I just fucking finished 12-hour shift, I am tired, I want to go and get my head down”.
PC Thisby: “Desmond give me the rest of your details now or you are definitely going to be arrested”.
Desmond: “What, I have given you my name, what else?”
PC Thisby: “Okay, let’s have your name, your address and your contact details because you are going to be reported for breaking the Coronavirus rules as I explained to you”.
Desmond: “No, what, what am I speaking Swahili to you?”
PC Thisby: “Don’t spit at me when you are shouting”.
Desmond: “I am not spitting at you”.
PC Thisby: “You are shouting and you are spitting. Give me your details so I can report you.”
Desmond: “I have just fucking finished work, what part of that don’t you understand? I have just fucking finished working”.
At this, Desmond went to pick up his belongings and walk away, but the conversation continued:
PC Thisby: “Desmond don’t walk away from me”.
Desmond: “Breaking what Coronavirus? What am I supposed to do, fly to my bedroom after work?”
PC Thisby: “Right you’re nicked. Caution still applies”.
Desmond: “What? What applies?”
PC Thisby: “You’re under arrest”.
Desmond: “For what?”
PC Thisby: “For not giving me your details under the Coronavirus rules”.
Desmond: “I said I have given you my details, I am going to record this because this is fucking harassment”.
Desmond now attempted to record events on his phone, but the officer sought to take the phone from him. Desmond backed away into the street and PC Thisby called for backup.
PC Thisby now escalated matters further by drawing his PAVA spray cannister, pointing it directly at Desmond and ordering him to get down on the ground.
Desmond was incredulous and protested “Are you kidding me?”
However, under duress, Desmond now turned to face the wall with his arms raised. PC Thisby again ordered Desmond to get down onto the ground and to put his arms behind his back, as if he was dealing with a suspected bank robber, rather than a tired key worker who was just trying to get home.
Desmond accordingly dropped to his knees and put his hands behind his back and was then handcuffed to the rear by the second Officer.
Desmond again asserted that this was harassment, but now confirmed his home address.
Unfortunately, Desmond’s ordeal still wasn’t over. He got to his feet, whereupon PC Thisby took hold of Desmond’s right arm and announced that he was to be searched because the Officer wanted to establish Desmond’s identification. Desmond protested and accused the Officer of being racist.
PC Thisby now pushed Desmond towards the wall with both hands and held him against the wall. Desmond again confirmed his name and address and said, “You started fucking roughing me up. For what, doing a 12-hour shift. I just finished work”. The second Officer now began to search Desmond.
Two more Officers, a male and a female now arrived, and began to participate in Desmond’s continued unlawful detention.
Desmond made reference to his work belongings nearby and continued to remonstrate as to the Police action against him, to which the fourth Officer shouted at Desmond, “At the moment there is a virus going around killing thousands of people so shut up and stop behaving like this”. Desmond replied, “No, don’t tell me to shut up….” But the fourth Officer continued harangued him, saying, “You’re behaving like a fucking idiot at the moment, shut up”.
Both PC Thisby and the fourth Officer continued to manhandle Desmond and the conversation continued as follows:
PC Thisby: “Desmond we gave you every single opportunity”.
Desmond: “You gave me what opportunity?”.
PC Thisby: “To try and get your details”.
Desmond: “What opportunity, what opportunity? I have just done a fucking 12-hour shift”.
PC Thisby: “No one is disputing that Desmond”.
Desmond: “Why are you pushing me against the wall”.
PC Thisby now lost his temper and shouted at Desmond, “Because I don’t want you spitting in my face when you’re shouting, you stupid man”.
PC Thisby now directed that Desmond be put in the back of a Police van and he was forcibly marched, bent over, to the van, with Officers continuing to manhandle him.
Desmond felt as if he was going to pass out and asked the Officers to allow him to stand up straight and to then sit down. The Officers advised that he would be allowed to stand up but not sit.
A fifth officer now attended and spoke to Desmond. Desmond again advised his name, that he worked on the railways and that his arrest was unlawful. He was highly agitated and distressed.
PC Thisby directed the second Officer to continue his search of Desmond. Whilst Desmond was being searched, PC Thisby radioed the control room and advised that he made an arrest for a Public Order offence and resist arrest. Desmond overheard and immediately challenged this, saying “What arrest, a Public Order offence, for what, for what?”. He received no explanation.
PC Thisby now stated to Desmond that if he ‘calmed down’ he would be released. Desmond remained highly distressed as a result of what the officers had done to him, convinced that he had been adversely treated because of this race and replied, “You don’t understand, you haven’t even said sorry, do you know what I mean. Why do I deserve this treatment?”
PC Thisby then resorted to seeking advice from his Sergeant, and made the following radio call:
“Alright Serg, I need advice. So we stopped the car, guy got out, he stopped on his own accord, I explained why I was talking to him because of Coronavirus etc. and asked him for his details which he then refused so far. He has then got really animated. I’ve explained if he didn’t give us his details I couldn’t clarify the fact that he was a key worker or not and I report him for the whole Coronavirus thing and in order to report him I need his details, if he wouldn’t give his details he’d end up getting nicked.
So, we have detained him eventually, I have threatened him with PAVA. Another call sign has arrived and in the process of him holding against the wall someone from another call sign sworn at him so we have nicked him for resist arrest and public order offence but now because an Officer has sworn at him does that count as a public order offence.”
Following this consultation, PC Thisby approached the Claimant and advised that he had been “Arrested for a Section 4 Public Order Offence and Resist Arrest”. Desmond was then transported to Copnor custody centre.
According to the Custody Record, Desmond had been arrested at 02.20 for using “threatening/abusive/words/behaviour with intent to cause fear/provoke unlawful violence” and for “obstruct/resist a constable in the execution of duty.”
The circumstances of arrest were described as follows:
“Male stopped to give an account as to why he was out. Because aggressive initially refused details refused COVID-19 questions. Initially arrested for failing to provide details, when details obtained, remained being aggressive towards officers and arrested S4POA and resist arrest.”
Desmond was then processed and obliged to provide a fingerprint and DNA sample and be photographed and was then locked in a cell, feeling highly agitated and distressed.
After several hours, a senior officer viewed the arresting officer’s body worn camera footage and concluded that he had concerns as to the validity of the arrest and, on that basis, directed that Desmond should be immediately released. The officer’s account was recorded as follows:
“The initial reason for the encounter is clear that the officer is simply attempting to identify the reason that the detainee was out.
Although the detainee is quite angry immediately an answer is quickly given that he has just returned from work and is on his way home; he points to where his address is within a nearby block of flats. He shows his fluorescent work gear and states that he has been working on the railways for 12 hours and wants to go home.
The arresting officer engages and attempts to explain the reasons for the encounter. He states that one of the reasons to be out of home is for key workers to get to work. The detainee states that he is a key worker, he is working on the railways. The arresting officer asks for the detainee’s details to confirm that he is a key worker, the detainee refuses to provide these. The detainee is becoming more and more animated.
Eventually the detainee is arrested for failing to provide his details to the officers and attempts to pull away from them. He continues to remonstrate very vocally but does eventually provide his name. He is released whilst the officers then continue to attempt to obtain further details from him. He is still very angry about the whole incident and is shouting loudly in the street. Having heard the language used and watched the behaviour the behaviour might constitute an offence under s5 POA if there are MoPs present who might be caused alarm/distress however my concern is that the reason for wanting the detainee’s details (to show he was a key worker) is not actually one of the reasons that people are allowed to leave their house. The actual legislation is that people are allowed to leave home for the travel to work but only if they cannot work from home. In this case based on the male’s disclosure that he has just finished work on the railway and that he shows his hi-viz clothing it would be reasonable to assume that the detainee was indeed on his way home from work. He highlighted that he was going home and pointed the address out and it can be argued that there was no requirement for these additional details (certainly not for the reason presented in any case) and that it was clear the male was going home, was there any need for further interaction?
All subsequent offences then stem from this arrest so my view is that given the concerns over the validity of original arrest I do not believe that it is right or appropriate to take action for his later anger. Whilst I don’t think his language was acceptable it can be justified in the context that he felt (rightly in my view) he had been wronged and was venting his anger over this. He does not threaten violence towards anyone at any point.
I have therefore released him without charge. He was very angry and agitated on release, initially refusing to leave and wanting to be charged with an offence. I explained that I would not do this as I did not believe he had committed an offence. He did eventually leave. I have provided a taxi on account to get him home and supplied my details along with those of the officers dealing with the incident that he requested.”
Desmond was finally released at approximately 06.25 having been in police custody for 4 hours 5 minutes.
As the highlighted section in the senior officer’s review shows, common sense had at last prevailed – but it should never have come to this.
In a situation where emergency ‘curfew’ type powers had been granted to the Police under the Coronavirus Regulations – hastily drafted and unfamiliar to the Police – Officers should have proceeded with caution in order to ensure that they were not exceeding the limits of their powers. This especially applies in a fairly straightforward case such as Desmond’s – in that he had given an account of being a key worker substantiated by his work gear. PC Thisby and his colleagues should have simply walked away at that point, but unfortunately persisted in trying to, unnecessarily and unlawfully, extract all of Desmond’s identity details – as if we lived in a ‘papers please’ Police state. The pride of the Officers then appears to have got in the way of their de-escalating the situation; they apparently wanted to flex their lockdown muscles and responded in the typical manner which Police Officers do when their presumed authority is challenged.
As I have said, in a situation that was difficult for everyone – but where the legislation that had been put in place was not about unnecessarily criminalising normal activities, but simply trying to keep people safe – the Officers could and should have behaved with tact and respect towards Desmond, and if necessary, simply watched him walk back through his own front door. Instead, they manhandled and handcuffed him, pulled him off the street, drove him several miles to custody and locked him in a cell, after forcing him to have close contact with at least half a dozen people. How was such an action at all in keeping with the ethos of the Regulations which the Police were supposed to be enforcing i.e social distancing?
As I pursued this claim on behalf of Desmond, I then encountered a second manifestation of obstructive Police pride, at a much higher level. The Chief Constable of Hampshire admitted legal liability for Desmond’s wrongful arrest and the assault which he had suffered at the hands of the Officers but refused to grant Desmond’s reasonable request for a formal apology from the Chief Constable herself or one of her senior Officers. Indeed, in an attempt to secure such an apology, which was of importance to Desmond who felt morally outraged by what had been done to him, Desmond offered to settle his claim for a significantly lower sum of money if it was accompanied by such an apology.
Hampshire Constabulary refused to take that offer, instead agreeing a financial settlement only, in the sum of £30,000 damages, plus legal costs.
Although this was an excellent outcome for Desmond in financial terms, and he was further vindicated by the Police admission of liability, I am perplexed by the decision of the Chief Constable to refuse an apology letter and instead write out a bigger cheque from what is, at the end of the day, public funds.
Rather than saying “sorry” for this gross over-reach of power, and attempted criminalisation of a heroic key worker, the Chief Constable was prepared to put public money where her mouth should have been.
“We consider it perfectly possible to assess quantum [i.e the value of the claim] in the current case at this stage and in our experience it is possible to settle the vast majority of wrongful arrest claims swiftly following an admission of liability. The representatives of both parties are very experienced with respect to claims of this nature. The length of detention is clear and the circumstances surrounding your client’s arrest not in dispute. The realistic likely outcome with respect to any assessment of psychiatric injury resulting from your client’s arrest can be predicted based upon experience of claims of this nature. Our offer has been calculated on that basis and we consider it offers our client adequate costs protection; whether it is accepted at this stage is obviously a matter for your client …..”
This is a communication which I received from the office of the Force Solicitor in response to a claim for wrongful arrest of just 4 hours for a man of relatively good character. At that time the offer of settlement which the Police had put forwards was £7,000 and it was this offer which the Force Solicitor was trying to induce my client to accept by claiming that in his experience it was highly unlikely to be beaten i.e. it offered the Police “costs protection” because my client was (in the Force Solicitor’s opinion) unlikely to achieve a higher award of damages at court.
Sadly, many Claims Against the Police are at risk of under-settlement because of the complex nature of this area of law and the robust and combative approach adopted by Police Forces and their lawyers.
When faced with such an approach, combined with an early admission of liability and an apparently attractive offer of settlement, solicitors with insufficient experience (such as those who primarily deal with accident claims), or those without ‘stomach for the fight’ might decide to fold and cash their client’s chips in early.
I, however, am proud to say that I always have in my hand those trump cards of experience, expertise and determination; the experience and expertise to properly assess the various heads of claim (length of and circumstances of detention; psychiatric impact; aggravating features and the possibility of exemplary damages) and the determination not to take an early pay out, but to see the claim through until my client has achieved the maximum realistic outcome – the financial payment that also brings with it the best sense of satisfaction and closure – the feeling that justice has been done.
Thus I advised my client and he rightly decided to call their ‘bluff’, to reject their offer of £7,000, commission expert evidence and institute Court proceedings.
The claim ultimately settled for damages of over four times that amount.
As I say, experience, expertise and determination.
The general principle behind the compensation system in the civil courts of England & Wales is to put the Claimant back into the position they would have been in, had the wrong not occurred. Sometimes this can be a relatively straightforward calculation as to direct financial loss or ‘out of pocket’ expense e.g loss of earnings/ the cost of medical treatment, whilst other aspects are more nebulous and complex – such as the calculation of the ‘value’ of the pain, suffering and loss of amenity caused by physical or psychiatric injuries; but the principle behind such calculations is always that of restitution to the Claimant: of not giving the Claimant a ‘windfall’ but rather resetting the balance so as to put them back into the position they would have been in without the tort/ breach of statutory rights committed against them (insofar as money can ever compensate for injuries).
However, there is another type of damages, over and above basic or compensatory damages, which can be appropriately claimed in a limited class of actions, of which claims against the Police are one. Exemplary damages are those awarded by the Courts not to compensate/ reimburse the Claimant for their suffering but to actively punish the Defendant and in this respect can represent something of a ‘windfall’ bonus for the individual Claimant; the overall purpose of such awards being to ensure the good of society as a whole by teaching the wrongdoer a lesson and discouraging future bad behaviour.
There is no question that the ethos of exemplary damages makes them particularly appropriate to claim in actions against the Police, or other Government/ State agents, as they can be a valuable tool in censuring those who have been granted powers over the public and who have grossly or flagrantly abused those powers.
“The jury should be told in a case where exemplary damages are claimed and the Judge considers that there is evidence to support such a claim, that though it is not normally possible to award damages with the object of punishing the defendant, exceptionally this is possible where there has been conduct, including oppressive or arbitrary behaviour, by police officers which deserves the exceptional remedy of exemplary damages. it should be explained to the jury:
(a) that if the jury are awarding aggravated damages these damages will have already provided compensation for the injury suffered by the plaintiff as a result of the oppressive and insulting behaviour of the police officer and, inevitably, a measure of punishment from the defendant’s point of view;
(b) that exemplary damages should be awarded if, but only if, they consider that the compensation awarded by way of basic and aggravated damages is in the circumstances an inadequate punishment for the defendants.
(c) that an award of exemplary damages is in effect a windfall for the plaintiff and, where damages will be payable out of police funds, the sum awarded may not be available to be expended by the police in a way which would benefit the public. [This guidance would not be appropriate if the claim were to be met by insurers].
(d) that the sum awarded by way of exemplary damages should be sufficient to mark the jury’s disapproval of the oppressive or arbitrary behaviour but should be no more than is required for this purpose.
Where exemplary damages are appropriate they are unlikely to be less than £5,000. Otherwise the case is probably not one which justifies an award of exemplary damages at all. In this class of action the conduct must be particularly deserving of condemnation for an award of as much as £25,000 to be justified and the figure of £50,000 should be regarded as the absolute maximum, involving directly officers of at least the rank of superintendent.”
A great many of the cases which I handle include allegations of oppressive, arbitrary and unconstitutional behaviour on the part of serving Police Officers and hence it is regularly appropriate for me to advance a claim for exemplary damages, as well as compensatory damages, on behalf of my clients; whether or not such awards will ultimately be made is another question, as they remain at the discretion of our often cautious and conservative Courts, but it is quite right and proper to include the claim so that the full tools of the civil justice system are available when the matter comes to adjudication.
However, I have recently encountered an argument advanced by solicitors acting for our Chief Constables in such cases, whereby they are seeking to ‘scare off’ claims for exemplary damages by reference to the recent judgment of Nickin J. in Underwood v Hampshire Hospitals NHS Trust  EWHC 888 (QB), para 55 –
“I should record that the claim for exemplary damages ought never to have been included against the Second Defendant. On behalf of the Claimants, Mr Archer did not press the claim at trial (but neither did he formally withdraw it). Claims for exemplary damages are wholly exceptional. The cases in which such damages can properly be claimed are very few; those in which they are awarded fewer still. It is never appropriate to add a claim for exemplary damages simply to mark how upset the claimant is about the defendant’s conduct, or as some sort of negotiating strategy. The Particulars of Claim did not disclose a proper case for an award of exemplary damages against the Second Defendant. Happily, it appears that no significant time or costs has been expended on this issue, but as a matter of principle claims for exemplary damages should only be pleaded where there is a proper basis to do so and supported by admissible evidence or in the expectation that such admissible evidence will be available at trial.”
Indeed, this very argument was raised in a Defence filed on a case I have recently successfully concluded; in this Defence, the Police sought to argue that “there are no facts pleaded in the Particulars of Claim that could conceivably justify any such award and it was improper to plead that head of loss.”
I was able to robustly contest this allegation, for, in my opinion, the fact is that any ‘improper’ conduct lay on the part of the lawyer who drafted that Defence and disingenuously sought to rely upon the Underwood case when it was on its facts wholly different to a claim against the Police. The Underwood judgment related to a claim for breach of the Data Protection Act arising from the activities of a private company marketing offers and services to new/ expectant parents, rather than acts of violence and false imprisonment perpetrated by agents of the State, with which my client’s claim was concerned.
This experience shows the need for continued vigilance, however, in the protection of our civil rights which rest to such a great extent on the ever- evolving body of caselaw; clearly some Police Forces, or their lawyers, are seeking to restrict ever further the types of case to which exemplary damages are applicable and this needs to be resisted. An award of exemplary damages, or even indeed the threat of such an award, is a valuable tool in maintaining the rule of law and the effectiveness of our civil justice system.
As I have made clear many times before, the civil justice system in this country has to do a disproportionate share of the ‘heavy lifting’ when it comes to holding police officers to account for their misdeeds, and regulating the balance of power between Police and public, because of the failure not only of the Police to police themselves but of our supposed Police ‘Watchdog’ the IOPC (Independent Office of Police Conduct) to show any real teeth on all but the rarest of occasions.
The fact of the matter is that this supposed Watchdog is often more like a sheepdog whose flock have run rings around him and then locked him in a pen.
What price a fair and proper complaint system in this country ensuring Police accountability and enforced by a regulator with real steel? Sadly, I am compelled to tell client after client that they can neither have faith in the impartiality and efficiency of the Police complaint system nor invest hope and reliance in appeals to the IOPC who, when not finding reasons to side with the Police, still seem to be able to offer even those whom they consider to have legitimate complaints luke-warm support at best, amidst a culture of delay and apparent deference towards the Police.
A classic example of this is a case in which I have recently been instructed, by a client who I will identify for the purposes of this blog by the name of ‘Anthony’.
Anthony made a complaint about an Officer of Greater Manchester Police following an incident which occurred in July 2020.
In October 2021 the ever-so-slowly turning wheels of the complaint investigation conducted by GMP’s Professional Standard Branch (PSB) delivered to Anthony the ‘outcome letter’ of the Appropriate Authority, Detective Superintendent Keeley. The good news was that DS Keeley determined that the Officer had a case to answer for gross misconduct in relation to honesty and integrity and discreditable conduct.
However, DS Keeley also rejected significant portions of my client’s complaint, determining that the officer did not have any case to answer in respect of use of force or equality and diversity (discrimination).
Although the Officer should now face a Gross Misconduct Hearing which could result in her dismissal, Anthony was bitterly disappointed that the charges against that officer did not encompass the racial discrimination and excessive force which Anthony felt he had been subjected to by the Officer.
As this was the outcome of an internal Police investigation, the Appropriate Authority advised Anthony of his right to “request a review” from the IOPC if he did not agree with his findings.
At the same time however, DS Keeley made it clear that Anthony would not be supplied with a copy of the Complaint Investigation Report on the basis that it contained evidence which would be heard at the Gross Misconduct Hearing. Anthony was informed that he would be entitled to a copy of the report only at the conclusion of those proceedings.
Anthony was therefore left in the farcical and Kafkaesque situation of being told that he had, in effect, a right of appeal against a report which he was not allowed to see. I am sure most of us would agree that it is difficult to argue against evidence and findings if you do not in fact know what that evidence and those findings are. Anthony had simply been informed of the very last ‘punch line’ of the report and no attempt had been made by Professional Standards or DS Keeley to explain to him any of the reasons for the rejection of more than half of his complaint.
Anthony, accordingly had to appeal ‘blind’ to the IOPC, bitterly disappointed by the lack of support and communication he had received and understandably feeling that his case was not being taken seriously, particularly his allegation of racial discrimination.
Anthony’s review request was received by the IOPC in November 2021 (within a few weeks of DS Keely’s decision) but it was not until July 2022 that he received a decision letter from the IOPC.
The good news was that the IOPC Caseworker upheld Anthony’s application for review on the basis that the GMP investigation into his complaint “was not reasonable and proportionate on the grounds of information”.
What did that bureaucratic-jargon phrase mean? The IOPC in reviewing the case had of course been made privy to the Complaint Investigation Report which Anthony himself had been denied sight of.
The IOPC Caseworker concluded:
“I am in no doubt that the response that you have received from GMP is not sufficient to ensure that you have all the information you need and can understand what it means…this has, it may be reasonably argued, adversely impacted on your ability to submit an informed application for review”.
That last sentence is, in my opinion, probably the epitome of stating the completely obvious in the most delicate, diffident and wishy-washy way.
The IOPC decision maker went on to comment that:
“I am not sufficiently satisfied from the information in front of me at this time, that GMP has adequately considered all of the available alternatives to ensure that you are as fully informed as possible in the circumstances”.
Indeed, I would describe the way that GMP’s Professional Standards Branch handled this issue as displaying all the typical hallmarks of arrogance, obstructiveness and lack of concern or compassion for the Complainant that is habitual in Police complaint investigations.
So, what would the IOPC now do – not only to set right Anthony’s situation (so he could be properly provided with the information he is entitled to) but also to send a message to GMP Professional Standards that this sort of behaviour will not be tolerated in the future?
The answer I am afraid, was a whimper rather than a bang.
Cap in hand, the IOPC Caseworker made no firm directions but simply begged GMP to give “consideration” to the “feasibility” of providing Anthony with a “redacted version” of the Investigation Report or – watering the request down even further – merely an ‘outcome letter’ which contains more information.
This was an abject failure by the IOPC to set any firm course of action; rather they simply offered ‘recommendations’ for ‘consideration’.
The IOPC signed off their involvement with the phrase, “We are committed to providing the highest possible standard of customer service” – a bog standard and essentially meaningless phrase when it comes at the end of a decision letter in which the IOPC appear to be saying to Anthony that although they certainly agree with him, they will do nothing to force GMP to comply other than to send Professional Standards a diffidently worded ‘begging’ letter.
It should be transparent to all, that in a healthy and open Police complaint system the balance of power would run in the opposite direction and Professional Standards would ‘jump to attention’ when the IOPC upbraided them and issued definitive instructions for a just and fair resolution of the Complaint process.
Instead, one is left with the distinct impression that both the Police and the IOPC know that this particular Watchdog is little more than a poodle.
So what happened next? Have GMP learned their lesson and in good faith taken the criticism levelled at them by the IOPC to heart and sought to ensure that Anthony is given as much information as possible, such that he can now reasonably and meaningfully appeal their decision to reject over half of his complaint?
I am sure you have already guessed the answer to that question.
The Detective Constable who wrote the Investigation Report confirmed within four days of the IOPC decision that she would not be releasing any further information to Anthony unless GMP’s Data Protection Unit instructed her to do so.
In other words; here is another bureaucratic hoop Anthony, please jump through it.
The likelihood of what will happen next is that, just as GMP’s Professional Standards Branch are now purporting to defer to their Data Protection Unit, the Data Protection Unit will hide behind the proposed Misconduct proceedings against the Officer, coupled with the expressed desire of PSB not to release the report, and will therefore refuse to do so until the Misconduct Hearing is complete and it is too late for Anthony to lodge any meaningful appeal against the Complaint outcome.
The IOPC have exhausted their usefulness and are extremely unlikely to intervene further. Anthony’s only recourse would then be a separate appeal to the Information Commissioner’s Office (ICO) or to the Courts themselves by way of Judicial Review.
None of this would or should be necessary if only the IOPC was fit for purpose; instead people like Anthony are left to count the cost of a depressingly dysfunctional Police complaints regime.
This is a guest post by my colleague and fellow solicitor, John Hagan.
The phrase “An Englishman’s home is his castle” dates back to at least 1505 where it was cited in a King’s Bench ruling, before being enshrined in Sir Edward Coke’s Institutes of the Laws of England in 1628. The familiarity of the phrase in both jurisprudence and common parlance is indicative of the importance which the English common law has always placed upon the security and integrity of a person’s home; the right of a person, when in his or her own home, to be safe from unreasonable interference by the State, whether in its modern or medieval incarnation.
The home owner can decide who enters the house, can refuse entry and can use reasonable force to repel trespassers, even if they are Police Officers, unless they have a specific right of entry granted by a limited number of statutory powers.
Indeed, it is out of this age-old common law right that the right to privacy and family life enshrined in Article 8 of the European Convention on Human Rights itself arises. No matter how much the present Government may revile the Human Rights Act, the fact is that those Human Rights have their roots in the deep and ancient rights accorded to British citizens.
One of the powers of entry which Police Officers can potentially exercise without the consent of the homeowner – indeed even in the face of his or her explicit opposition – is that granted by Section 18 of the Police and Criminal Evidence Act 1984 [PACE]:
18 Entry and search after arrest.
(1)Subject to the following provisions of this section, a constable may enter and search any premises occupied or controlled by a person who is under arrest for an [indictable] offence, if he has reasonable grounds for suspecting that there is on the premises evidence, other than items subject to legal privilege, that relates—
(a)to that offence; or
(b)to some other [indictable] offence which is connected with or similar to that offence.
(2)A constable may seize and retain anything for which he may search under subsection (1) above.
(3)The power to search conferred by subsection (1) above is only a power to search to the extent that is reasonably required for the purpose of discovering such evidence.
(4)Subject to subsection (5) below, the powers conferred by this section may not be exercised unless an officer of the rank of inspector or above has authorised them in writing.
[ (5)A constable may conduct a search under subsection (1)—
(a)before the person is taken to a police station or released … under section 30A, and
(b)without obtaining an authorisation under subsection (4),
if the condition in subsection (5A) is satisfied.
(5A)The condition is that the presence of the person at a place (other than a police station) is necessary for the effective investigation of the offence.]
However, it is an essential component of a lawful exercise of Section 18 Powers of Entry not merely that the Police believe (or purport to believe) that such an arrested individual resides at or owns the target address but that the individual actually does reside at or own the address. Note that the description of “premises occupied or controlled by a person who is under arrest” is not qualified by a ‘reasonable belief’ clause i.e the provision does not say “any premises which the constable reasonably suspects to be occupied or controlled by a person under arrest…”
Therefore, if the Police are acting under false or inaccurate information then any entry which they effect into a private property against the home owner’s consent is unlawful; and the Officers whilst on the property are unquestionably trespassers and therefore not acting in the lawful execution of their duty.
This was a key factor in a case which I have recently concluded against Merseyside Police.
My client, who I will identify for the purpose of this blog post as “Ben”, resides in a leasehold property in Liverpool with his partner and their young son.
The incident in question began in the early hours the morning in March 2019.
Ben was working on his computer in the living room, with his young son asleep on the couch in the living room, whilst his partner was asleep in the bedroom upstairs.
Ben heard a knock on the window at the front of his house and on looking out of the window saw a ‘Matrix’ van and Merseyside Police Officers outside his house. Accordingly, Ben went to the front door and opened it, to find himself confronted by three uniformed Police Officers led by PC Walters.
PC Walters demanded to know if Ben was another individual, George Bishop, and whether George Bishop lived at the address; Ben had never heard of this person, and told the officer this.
At this point in the conversation, Ben was aware that PC Walters had put his foot in the doorway to prevent him from closing it. Ben had initially opened the door half ajar and the Officer’s foot was now over the threshold so that it was clear to my client that any attempt that he made to shut the door would be prevented by the Officer’s foot.
Ben now asked “Can I go now?” to which PC Walters replied “We’re going to be searching this property under Section 18.”
This was despite a female Officer who was present (PC Highland) being overheard by Ben to say “He has clearly given a fake address.” (i.e that the individual George Bishop had wrongly given Ben’s address as if it were his own – which indeed was exactly what had happened).
Ben politely replied to PC Walters that he had no idea what a ‘Section 18’ was and asked the Officer to show him the relevant paperwork (as he assumed that some sort of warrant would be required).
PC Walters then asserted that the Police did not require any form of warrant to effect a Section 18 search (which was correct in principle, although incorrect in fact, owing to the fact that this was not George Bishop’s real address).
My client replied by asking the Officer to explain to him, in that case, what a ‘Section 18’ was, to which PC Walters asserted “I have told you we have the power to enter the property.” No further explanation was offered.
Ben now offered to get documentary proof of who he was and that this was his home (ie that he was not George Bishop) however this offer was ignored by PC Walters who then stated “Move out of my way, now!” The Officers forced their way en masse into the house, lead by PC Walters.
Ben now found himself being crowded by PC Walters and other Officers in the small vestibule of his house. Behind our client was a door (which was slightly ajar) which lead to the hallway within the house.
My client became aware that the family’s pet dog had been awoken (presumably by the voices of himself and the Police Officers) and had come into hallway.
Ben’s back was pushed up against the inner door by PC Walters. He asked the Officer to let him go so that he could deal with the dog.
PC Walters and other Officers however were becoming agitated and shouting at my client “Deal with the dog! Get the dog under control.”
Ben’s partner had now also been awoken by the noise and had come downstairs into the hallway of the house.
PC Walters now produced a canister and used it to spray the pet dog in the face to Ben’s shock and disbelief.
The Police Officers now pushed Ben through the doorway into the hallway. During this process Ben’s young son, who had been asleep on the couch in the living room, awoke and became hysterical at the sight of the strange people in his house manhandling his father.
Ben’s partner then took their dog upstairs, appealing to the Officers to leave, referring to the fact that her son was in the living room, but the Officers ignored this and PC Walters tried to push my client into the living room.
Ben did not want to be taken into the living room because he didn’t want his young son to become further distressed.
PC Walters then dragged Ben outside the property and slammed him up against the wheelie bins situated in the front yard.
As he was taking Ben outside, PC Walters put a handcuff on my client’s left wrist. Throughout this process, Ben offered no resistance to the Officer, and he was shocked at what was being done to him.
In attempting to put the handcuff on, PC Walters caused my client’s coat to become ripped and then he managed to put the handcuff on Ben’s right wrist as well.
PC Walters then made Ben sit on a seat inside the Matrix van and informed him that he was under arrest for obstructing an Officer in carrying out a Section 18 search.
Ben provided his personal details and confirmed that he had never before been in trouble with the Police.
Another officer, Sergeant Michaels was then overheard saying to PC Highland “Make sure you get the child’s details so we can contact Social Services.”
Ben was extremely disturbed by the Officer’s statement, as he was clearly suggesting that the Police were going to try and take his son away from him and his partner.
During the time that Ben was in the van, PC Highland spoke to Ben’s partner inside the house and informed her that ‘George Bishop’ was in Police custody and had given their address as his address. PC Highland added “I don’t think this was explained too well to your partner.” Ben’s partner confirmed to PC Highland that neither she nor Ben knew George Bishop and he had never dwelled at this address.
Ben was then taken to a Merseyside Custody Suite where he was detained for several hours in a cell and experienced ongoing stress and chest pains. Thereafter Ben was interviewed under caution with a Solicitor present and was finally released from Custody almost 15 hours after his arrest.
Ben was subsequently charged with the offence of obstruct/resist a Constable in the execution of his duty. He pleaded not guilty and the matter proceeded to Trial at Liverpool Magistrates Court where he was quite properly found not guilty.
Police Rush In, Where Angels Fear To Tread
The essence of this matter was relatively simple: even if the Police had indeed been ‘hoodwinked’ by George Bishop as to his true address, they had no power to enter Ben’s home under Section 18 of PACE. The summary power of a Section 18 right of entry is not couched in terms of whether the Police ‘reasonably believe’ that the arrested person occupies or controls the address, but the absolutely objective question as to whether or not he really does; and this is only right and proper given the preference which the security and privacy of our homes should be granted over the intrusions of State power, wherever possible, and in accordance with the oldest inclinations of English jurisprudence.
This position was endorsed in the clearest of terms by the Court of Appeal in the case of Khan v Commissioner of Police for the Metropolis  EWCA Civ 723 which also involved Police use of Section 18 powers after a criminal suspect in custody had given a false address (Mr Khan’s address). Mr Khan was successful in his subsequent claim for trespass and the Police appeal against that decision was comprehensively rejected by the Court of Appeal; Lord Justice Pill set out his reasoning as follows (my emphasis) –
I see no justification for reading Section 18 other than in accordance with its plain words. The power may be exercised only at premises “occupied or controlled” by the person under arrest. The scope of the concept “occupation or control” is for decision on another day, though I would not expect it to be construed restrictively. The requirement for occupation or control is central and fundamental to the operation of Section 18 and its absence cannot be treated as a “trivial or unimportant irregularity”…
The expressions “reasonable belief” and “reasonable grounds” appear in different contexts in sections 8, 18 and 32 of the 1984 Act already cited [PACE] and the omission in the relevant part of section 18 (1) cannot have been accidental. Moreover Parliament plainly reviewed the operation of the relevant powers when passing the 2005 Act [Serious Organised Crime and Police Act], which included amendments, and it was not decided to qualify the requirement for occupation or control, which was also introduced, for certain purposes, into section 8.
I find nothing absurd in the construction favoured by the judge. The power in section 18 is more limited than that for which Mr Shetty contends but will be exercisable in those cases, likely to be significant in number, where the arrested person’s occupation or control of the premises is known or can readily be ascertained. In other cases a search warrant may be sought under Section 8, which, like Section 18, now applies to indictable offences. In Section 8, the authority to enter and search is conferred by a Justice of the Peace; in Section 18 it is conferred by a police officer of the rank of inspector or above (section 18 (4)), but in my view there is nothing absurd about the distinction.
Further, to give the words their ordinary meaning asserts the right to respect for private and family life and home provided by Article 8 of the European Convention on Human Rights (“the Convention”). Section 18 of the 1984 Act must be read so far as it is possible to do in a way which is compatible with Convention rights (Section 3 (1) of the Human Rights Act 1998). Article 8 (2) does permit interference with the exercise of the right in the interests of national security or public safety but the entitlement to justify interference does not permit section 18 to be read so as to insert words that the power may be exercised as long as a constable has reasonable belief in the arrested person’s occupation or control.
It is open to the Police to request a premises search warrant from the Court, initiating a process of judicial scrutiny and endorsement of the proposed search which then prevents the Police from becoming unwitting trespassers, if the proper statutory rules are complied with. Such a process, of course, involves the Police obtaining sufficient evidence to satisfy the Court that the premises are indeed those of the suspect/ arrested individual. If instead officers “rush in where Angels fear to tread”, short-circuiting the process of Judicial scrutiny, and end up invading an innocent family’s home, then it is essential that they bear the consequences of this, especially where in the process they resort to bully-boy tactics and unlawfully arrest a homeowner who was standing up for his rights.
I fully believe that notwithstanding the apparently false information given to the Police by George Bishop as to his residential address (notably unsubstantiated by any documentary evidence) this incident would not have escalated so badly to everybody’s detriment had the lead officer, PC Walters, not behaved in an arrogant and high-handed manner, favouring the exercise of his own perceived power and authority over the evidence which was immediately indicative of the officers having been led to the wrong address. Once again, this was a Police officer apparently substituting his own desire for personal power over others, for the carefully balanced powers of the legal system which he was supposed to be administering.
Merseyside Police initially sought to deny liability entirely, but I pressed my client’s case and held them to account, securing a liability admission for the officers’ trespass into Ben’s home and their wrongful arrest of Ben. I have recently recovered damages totalling almost £20,000 for Ben and his partner, plus legal costs, and have hopefully taught Merseyside Police a valuable lesson in the process.
If you have experienced a Police intrusion into your home, whether under PACE powers or a search warrant, please contact me for expert advice and representation; because – thankfully – five hundred years after the principle was first enunciated, English men and women are still well capable of defending their castles.
There is an ever present risk that bullies and abusers are attracted to the Police profession because of the opportunity it offers to exercise power over others – but that problem is frankly several times worse in the far less regulated and scrutinised environment of the ‘security industry’ about which I have blogged before, and many of whose employees seem to display nothing short of ‘Wild West’ standards of morality, behaviour and (lack of) impulse control.
Yet another example of this, is a case I have recently concluded on behalf of a client who I will identify for the purposes of this blog as “Martin”.
In September 2018 Martin had been drinking in a pub in central Liverpool before heading to Liverpool Central Station to catch the train home.
Whilst he was waiting on the platform, Martin was approached by a female member of Merseyrail Staff who asked if he was okay and questioned if he had been drinking. Martin replied that he had had a few pints but that he was fine – but the female member of staff asserted that in her opinion he was not fit to travel.
Martin disagreed with this and was told that he would have to take it up with the staff member’s supervisor. Accordingly, Martin went up the escalator to the station concourse where he spoke to a male member of staff identified as the station manager.
Martin made polite representations as to why he should be allowed to travel, notwithstanding the fact that he had been drinking. The manager seemed sympathetic but ultimately said that he agreed with his colleague’s assessment and that he was refusing Martin permission to travel.
At all times Martin had remained polite and well mannered throughout his dealings with the Merseyrail Staff, and despite his inebriation did not lose his temper.
However, at this point four security guards employed by Carlisle Support Services Group Limited approached and laid hands upon Martin.
The four men physically escorted Martin from the station premises and whilst outside, in protest and what he felt to be their unnecessarily aggressive action, Martin swore at the men calling them “fucking bullies”.
In response to these words the Carlisle Group employees launched a vicious attack upon Martin; the first, who I will identify as Mr S, grabbed the back of Martin’s neck and slammed him face first into a wall. The security staff then forced Martin backwards and downwards to the ground and in the process of so doing fractured his right ankle so badly that it was later to require the insertion of metalwork to fix.
Two of the security staff – Mr S and Mr M – then pinned Martin to the ground and called for onlookers to “Get the Police”.
Martin was then held down on the ground for four long minutes, during which time Mr M applied pressure to Martin’s head and knelt on one of his hands. Mr S lay across Martin’s legs, maintaining a lock on his other hand. In fear, pain and distress Martin yelled out loudly, begging to be released. Fortunately, British Transport Police Officers arrived relatively quickly on the scene and Mr S and Mr M were persuaded to let go of Martin.
It was immediately obvious that Martin’s ankle had been broken and an ambulance was called to take him to the Royal Liverpool Hospital. Mr M then told a series of brazen lies to the Police – variously alleging that Martin had made threats, had assaulted him by grabbing his testicles and had run into the wall.
Thankfully however, CCTV had captured the true events and three of the security guards were subsequently prosecuted, with Mr S and Mr M ultimately pleading guilty to affray and receiving suspended prison sentences.
Martin had suffered a trimalleolar fracture of his right ankle together with damage to his medial ligament, as well as understandable psychological harm, and on his behalf I brought Court proceedings against Carlisle Support Services winning him damages of £42,500.
Too many security staff, it seems to me, are itching for the slightest excuse to flex their muscles, power-fantasies or whatever other urge drives them – often relying on the presumption that their ‘big brother – little brother’ relationship with the Police will protect them; thankfully here it did not, owing no doubt to the unimpeachable testimony of CCTV.
However, brutal assaults like this by security ‘gangs’ putting members of the public at risk of severe internal injuries – and even real risk of asphyxiation, in a manner similar to the murder of George Floyd – are all too common.
If you or anyone you know has suffered excessive violence at the hands of security guards who enjoy their job too much – please contact me for expert advice and assistance; together we can hold them to account.
The stringency with which this test, a key safeguard of our civil liberties and restraint upon the power of the Police, must be applied in cases involving the arrest of a child was highlighted in a High Court appeal decision last month.
The watchword of the UK’s ‘unwritten constitution’ is the same word which defines the unwritten social contract that exists between the Police and the public: reasonableness and the test as to whether or not it is reasonable to arrest a child when a crime is being investigated is right and properly set at a much higher level than in the case of an adult.
ST was arrested just after 5.30am on 20 December 2011, in his own home, and thereafter detained in an adult cell in a Police Station for several hours before being interviewed and released on bail. He was never charged with any offence.
The basis of ST’s arrest was an incident which had occurred some 12 days earlier on 8 December 2011, outside ST’s school.
A pupil, identified in the Court proceedings as ‘J’, snatched a mobile phone from a 12 year old girl identified as ‘EB’. ST was nearby and came over and asked if EB was okay and then told her he would go and get J, before running off after the other boy.
EB and her mother then drove in their car and located J and ST. J returned the phone to EB but without its pink case or sim card. The Court noted that the value of the pink case was approximately £5 and the sim card was effectively valueless, as it was on contract and was stopped immediately.
In the following days, the school decided that J should be excluded as a result of his theft of the phone but the school was equally satisfied that ST had done nothing wrong.
However, on 19 December 2011 J was arrested by PC Lilliman and when being interviewed by the Police J alleged that it was ST who had told him to steal the phone. He alleged that it was ST who had retained the sim card and phone cover. As Mr Justice Cotter observed in the Appeal Judgment – “I pause to observe that this would have been a curious step as the value lay in the phone not in the pink case and EB’s sim card”.
PC Lilliman then decided that ST should also be arrested. He recorded his decision as follows –
“Decision taken to arrest ST the next day, to search for the stolen property before he left for school. Email sent to nightshift to arrest ST and search for outstanding property and I would deal with him in the morning when I started work at 8am”.
The task was allocated to PC Laughland and PC Turnbull who were working the nightshift.
It is important to note here that there is no record of any consideration by the Police as to whether instead of arresting ST, a search warrant could have been obtained and/or a voluntary interview requested.
The low value phone case, and the apparently worthless sim card, had been taken some 12 days previously whereas the valuable item – the mobile phone – had almost immediately been returned to EB. It clearly struck the appeal Court that it was very far fetched to assume both that ST had in fact taken the case and card and that he would have retained, rather than discarded, these very low value items. The Court also noted that the school’s own investigation had identified J as the perpetrator and expelled him, and not ST.
Nottinghamshire Police, on the other hand, appear to have had a tunnel-vision focus on the fact that the theft of the phone met the definition of the “very serious indictable offence of robbery” rather than on the practical details of the age of those involved, the minor nature of the offence and the slim chance that the low value ‘missing’ items were in ST’s possession. In other words, the decision to take the draconian step of arresting ST appears to have been taken without any adequate consideration of –
ST’s welfare given his young age (taken in the context of the low level of seriousness of the alleged offence);
the fact that the offence had occurred 12 days previously; and
that ST would not be difficult to locate if the Police did indeed want to interview him.
As Mr Justice Cotter observed, it appeared that the timing of the arrest, in the early hours of the morning, with the deliberate intention that ST would then be ready and waiting in a cell when PC Lilliman came on duty at a more ‘civilised hour’ that morning – was largely, if not solely, for the Officer’s convenience.
Indeed, the Judge at first instance (HHJ Godsmark QC, sitting in Mansfield County Court) had – metaphorically – spilt his coffee when hearing Police witnesses give the glib excuse that 5.30am arrest visitations were common practice because it was a ‘good time to catch people at home’. HHJ Godsmark found it “extraordinary” that the arrest of a 14 year old boy was tied to the convenience of a particular Officer’s shift and stated –
“In my time sitting as a Judge in both civil and criminal jurisdictions I have not heard of such a thing before. I really wonder how many members of the community would agree with such an arrest”.
That final sentence goes very much to the heart of the matter here, in my opinion – the social imperative that the Police exercise their powers in an objectively reasonable manner so as to ensure the good health of the ‘policing by consent’ relationship between UK Police and public.
When confronted by Police Officers at the door, in these shocking circumstances, seeking, rather grandiosely, to arrest his son for ‘robbery’ the Claimant’s father tried to reason with PC Laughland – offering to bring ST to the station to answer any questions the Police had at a more reasonable hour that morning.
Not only had ST been awoken in these distressing circumstances, but also his four siblings as well, and it is understandable that ST’s father would have been very upset at what was unfolding. However, it was clear that he kept a level head and made a sensible suggestion to try to resolve the situation.
Indeed, the challenge and alternative suggestion made by ST’s father appears to have given PC Laughland pause for thought, as at this point she telephoned her supervising Officer for advice, but was directed to continue with the arrest.
PC Laughland’s colleague PC Turnbull later commented –
“I did have my own reservations about attending at such an hour considering the age of the boy and the fact that the offence was 12 days old but such ‘arrestograms’ from other departments are common place and tend not to be questioned. I found it hard not to agree with ST’s dad at the time, but we were stuck in an unfortunate situation”.
Accordingly, ST was subject to the indignity of being arrested and he was taken by the Officers to Bridewell Police Station and detained alone in an adult cell on suspicion of robbery because “there was no other place to put him”.
Ultimately ST was detained for approximately 6 hours, during which time, some 3 hours after his arrival in Custody, he was interviewed in the presence of his father (acting as Appropriate Adult) and a solicitor and shortly thereafter released.
In January 2012 it was decided that no further action would be taken against ST, but the harm of course, had already been done.
Code G of the Police and Criminal Evidence Act (PACE) 1984 contains the following clear direction at paragraph 1.3 – The use of the power [of arrest] must be fully justified and Officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means.
In other words, arrest must never be used simply because it can be used. As Sir Brian Kerr LCJ said in Re Alexanders Application for Judicial Review  NIQB 20 –
“…it is difficult to envisage how it could be said that a Constable has reasonable grounds for believing it is necessary to arrest, if he does not make at least some evaluation as to whether voluntary attendance would achieve the objective that he wishes to secure”.
The criteria for a summary arrest – as opposed to either the more formal process of applying for an arrest (or search) warrant, or the more informal alternative of a voluntary interview – could be satisfied under the Code G Necessity Criteria if there was evidence that, for example, the suspect was likely to collude with others or to hide or destroy evidence if he was not immediately taken into Police custody. Those factors simply did not apply on any reasonable analysis of the facts of ST’s case.
As Mrs Justice Thornton stressed in Commissioner of the Police for the Metropolis v MR  EWHC 888 (QB) –
“The test of necessity is more than simply ‘desirable’ or ‘convenient’ or ‘reasonable’. It is a high bar, introduced for all offences in 2005 to tighten the accountability of Police Officers”.
Despite all of this, as well as his own evident discomfort at the heavy handed nature of the ‘dawn raid’ carried out by Nottinghamshire Police in this case, the Judge at first instance, His Honour Judge Godsmark QC ruled in favour of The Chief Constable by deciding that the arrest necessity criteria were satisfied.
In his reasoning, Judge Godsmark appeared to fall into a trap of circular logic by deciding that once the Police had knocked on the door of the family’s home at 5.30am that morning “the die was cast” because even though they were now presented with the reasonable offer from ST’s father to bring his son to the police station later that morning, Judge Godsmark felt it was nevertheless lawful for PC Laughland to continue with her intention to arrest ST because to fail to do so was to lose the complimentary power (granted by Section 18 of PACE) which allows Officers to compulsorily and lawfully search the arrestee’s place of residence for evidence associated with the crime. The Judge’s reasoning was that for the Officers to withdraw at that point without making the arrest would have given ST the opportunity to dispose of the evidence of the crime (if indeed he had committed it).
Nevertheless, HHJ Godsmark did appear troubled by his own finding and again reiterated that the arrest of a 14 year old boy, with no criminal record, at 5.30am in the morning, did not sit comfortably with him, and even whilst finding against ST, Judge Godsmark enunciated that very principle which should be the central ethos of UK Policing and the lens through which the exercise of Police powers should always be scrutinised –
“In a country where it is generally said that Policing is by consent of the community, I really wonder how many members of the community would agree with such an arrest”.
ST’s appeal against the rejection of his claim, was cogently advanced by Ms Sarah Hemingway of Garden Court Chambers on multiple grounds, of which the key lines of argument were as follows:-
There was no contemporaneous evidence as to why it was thought necessary to arrest ST and thereby circumvent the usual statutory safeguards in obtaining a search warrant, or otherwise inviting him to a voluntary interview, prior to the Officers attending at the family’s home. In the circumstances, the Chief Constable had failed to prove that there were reasonable grounds for ST’s arrest prior to the attendance of PC Laughland at his home.
Furthermore and following on from this, if there were no reasonable grounds to believe an arrest was necessary up until that moment, then it was perverse in the extreme to find that the arrest could have been made lawful and necessary by the Officers’ own mistakes (i.e. the Officers’ prior decision to attend at the family home at 5.30am thus ‘alerting’ ST to the fact that they wished to interview him and search his property). Yet it was this very justification that HHJ Godsmark appeared to have applied such weight to in his own Judgment.
In his detailed analysis of the appeal, the High Court Judge Mr Justice Cotter stressed the crucial importance of the test of arrest necessity noting that it is designed to protect the public from autocratic decisions and that arrest must never be used simply because it can be used (or is simply convenient for the progression of an investigation) –
“In the present case there was a central and obvious consideration; the Appellant was a child. In my judgement the Judge was led into error by submissions which, to a significant extent, equated children with adults…the Judge should have concluded that the approach of the Officers failed to factor into the assessment of the necessity the best interests of a 14 year old child. Where time for reflection exists, the test of necessity for arrest and detention requires anxious scrutiny of the fact that a child is involved. This approach is consistent with the duty under the Children Act 2004 and wider obligations”.
(Paragraphs 94 – 95)
In this country the treatment of children in detention is governed not only by our domestic law but also by the UN Convention on the Rights of the Child (UNCRC) which the UK has signed and ratified in accordance with our longstanding traditions of being at the forefront of development of the global gold standard for human rights.
Article 3 UNCRC provides that in all actions concerning children undertaken by public institutions, Courts of Law, administrative authorities and legislative bodies the best interests of the child shall be a primary consideration and, in particular, Article 37 requires that “the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”.
The requirement that the best ‘interests of the child’ should be integral to the decisions and actions of public bodies (including of course the Police) is enshrined in Section 11 of the Children Act 2004.
In any Police Officer’s consideration as to whether or not it is necessary to exercise their power of summary arrest upon a person, in accordance with PACE Code G, the fact that that person is a child should be ‘front and centre’ (Mr Justice Cotter’s words) in that consideration – and an assessment of whether a less intrusive step than arrest is a practical alternative, must be undertaken.
Indeed, although the Chief Constable of Nottinghamshire appeared to be unaware of this fact for the purposes of the claim brought by ST, the same principle is clearly endorsed by the College of Policing in its Authorised Professional Practice Guide on the arrest and detention of children and young persons –
“Officers must take into account the age of a child or young person when deciding whether any of the Code G statutory grounds for arrest apply. They should pay particular regard to the timing of any necessary arrest of children and young people and ensure that they are detained for no longer than needed in accordance with paragraph 1.1 of Code C. Officers should avoid holding children overnight in Police cells unless absolutely necessary”.
Applying these highly important guidelines and principles to the facts of the specific case the appeal Judge found –
PC Lilliman did not appear to have weighed up whether there was an alternative to arrest, specifically obtaining a search warrant and/or seeking a voluntary interview.
An arrest had to satisfy the high bar of being necessary, not just convenient and given the evidence, HHJ Godsmark QC should, on an independent and objective analysis, have reached the conclusion that PC Lilliman had failed to clear it. This was therefore a serious mistake by the Judge at first instance.
The overarching mistake made by the actual arresting Officer PC Laughland (who made the ultimate decision to arrest, albeit acting on PC Lilliman’s instructions) was that ST being a teenager (14 years old) somehow meant that he was not to be considered as a child.
Furthermore, the limited information set out in the ‘arrestogram’ about the offence/investigation could not have amounted to sufficient detail to provide PC Laughland with reasonable grounds for belief in the necessity of arrest – “An Officer can not ‘play safe’ and arrest someone because given all the circumstances as known to others it may be necessary” (Paragraph 110).
Yet further, insufficient consideration was taken to ensure that a 14 year old child was detained for no longer than needed.
The offer by ST’s father to bring him to the station voluntarily at a more reasonable hour that morning was an obvious practical alternative to arrest and yet further – the Officers present at the house, and also the more senior Officer who they consulted, failed to consider the obvious option of asking ST’s father to allow them to undertake a search of his son’s bedroom with the family’s consent and without ST having to be arrested – ST after all was only 14 and therefore had no power to prevent a search if his father, the owner of the house, permitted it (which on the facts available it seems highly likely he would have done so as to avoid the unnecessary stress and stigma for all concerned of his son being arrested and taken into police custody). Instead, the Officers in fact gave no thought at all to achieving the central objective of a search without arrest.
In all the circumstances – and not pulling any punches – Mr Justice Cotter concluded “I cannot see how… the [first] Judge could have found that reasonable grounds existed for the belief that arrest was necessary”. He therefore granted ST’s appeal, labelling the Police decision to arrest as “lamentable” and without due regard for the welfare of a child.
I very much applaud this Judgment in which the High Court has not only criticised the lazy and ‘glib’ policing which led to a child’s unlawful arrest, and reproved the Police for their tendency to treat teenagers as if they were adults, but has also sent a timely reminder to the rest of our civil justice system that it is the duty of lawyers and the judiciary to ensure that the exercise of policing power is always balanced by the responsibility to be reasonable.
The IOPC – National Stop and Search Learning Report April 2022 (page 19) states as follows –
The Code of Ethics describes an expectation that Officers will report, challenge or take action against the conduct of colleagues which is formed below the standards of professional behaviour. Officers must never ignore unethical or unprofessional behaviour by a policing colleague, irrespective of the person’s rank, grade or role (College of Policing 2014) and Forces should be encouraging and supporting supervisors and peers to fulfil their obligation under this standard when they can see things are going wrong.
All too often however, the Code of Ethics seems to be trumped by the Code of Silence i.e. Officers operating under an implicit ‘Us versus them’ mentality failing to challenge or report unlawful conduct by their comrades.
I have previously blogged about the case of my client Ben Joynes who was viciously assaulted by (now ex) PC Mark Knights of Derbyshire Police in November 2019. Following a minor disagreement about moving a car, PC Knights called my client a “fat cunt” and when Ben tried to complain about this, PC Knights headbutted him, pushed him to the ground, handcuffed and imprisoned him (thankfully temporarily) in the back of a Police van.
Ben found his initial official complaint to Derbyshire Police falling on deaf ears – despite the seriousness of his allegations – to such an extent that anti- corruption campaigner Rob Warner of Crimebodge stepped in to initiate a private prosecution against PC Knights in order to avoid the statutory 6 month time limit for criminal charges expiring whilst the Police erected their usual barriers of delay and prevarication.
Mark Knights was subsequently found guilty of common assault against Ben and dismissed from the Police for gross misconduct.
I am now pleased to confirm that I have settled Ben’s claim for damages arising from the incident for a substantial sum.
Although Derbyshire Police had to accept liability for the actions of PC Knights, they initially sought to absolve themselves of institutional responsibility for what was done to Ben – blaming this on the actions of one rogue Officer. After all, the lawyers acting on behalf of the Chief Constable argued, Derbyshire Police had (ultimately) dealt robustly with PC Knights who was prosecuted and convicted of criminal assault and then dismissed from the Force for gross misconduct.
They therefore contended that Ben’s claim for damages should be relatively modest – reflecting only what PC Knights had directly done to him.
However, I strongly felt that this case wasn’t just about the actions of one rogue Officer but rather the complicity through inaction of numerous other Derbyshire Officers who witnessed what PC Knights did to Ben, but who then failed to intervene whether to assist my client, to arrest PC Knights himself or to report PC Knights’ conduct to their Professional Standards Department.
At the Trial of PC Knights at Derbyshire Magistrates Court in December 2020 PC Jennifer Salmon confirmed that she witnessed the headbutt but in her answers to the Court refused to describe such action by PC Knights as being either surprising or unacceptable.
PC David Naylor likewise told the Court that he heard Ben’s son state that his father had been verbally abused and headbutted by PC Knights, but PC Naylor took no action in response to this information. Furthermore, body camera footage played to the Court demonstrated that PC Naylor attempted to justify/excuse PC Knights’ use of a headbutt against Ben. PC Naylor asserted to Ben’s son “Trust me, none of us just headbutt somebody for the sake of it”.
Likewise, PC Nixon (in his written statement of events) confirmed that he was aware at the scene of Ben and his son’s allegations as to PC Knights’ conduct, and yet he also took no action in regards to these complaints.
In summary, not one of the five other Police Officers who were present at the scene of this incident took any action against PC Knights at the time, nor subsequently reported his conduct, and both of the Officers who attended the Magistrates Court trial were equivocal in their evidence and refused to be drawn into criticism of their colleague.
In my opinion, it is likely to have been the lukewarm evidence of the other Police Officers, set out in their post incident statements, which led to the Crown Prosecution Service initially refusing to prosecute PC Knights on the basis of “no realistic prospect of conviction” – a decision which Ben had to appeal under the Victims Right to Review.
The actions of PC Knights himself were undoubtedly arbitrary, oppressive and unconstitutional – demonstrating a complete disregard for the importance of the rule of law and liberty of the person- and undoubtedly gave rise to a claim for damages; but to me it was also clear that the conduct of the other Officers present at the scene – which can best be summarised as ‘looking the other way’ in the moral sense of that phrase – was worthy of sanction by the Court, as being indicative of a Policing culture which tends to look after its own and in which Officers routinely overlook unlawful actions by their colleagues (in this case something as grossly obvious as a brutal headbutt followed by handcuffing and detention without the slightest shred of a reasonable explanation by the Officer) and/or attempt to discourage legitimate complaints.
The other Officers at the scene uniformly failed to intervene despite flagrant criminal conduct by PC Knights – which was apparently manifest to all non- Police witnesses at the scene – not only including Ben’s son but also independent witness Simon Thompson. Nor did any of these Officers even retrospectively report PC Knights’ act of misconduct, or ever offer any frank condemnation of the same – whether when asked to provide a witness statement of the events, when interviewed by their Professional Standards Department, or in the case of two of them, during sworn testimony at Court.
It was after reflecting upon the submissions that I made on this particular issue that the Police agreed to a final damages amount of £19,950, plus legal costs, a sum which I believe to be commensurate with the wider scale of Police wrongdoing in this case.
I trust that this outcome may also lead the Police to reflect on the much bigger picture here. This isn’t just about the quantification of Ben’s claim for damages, but about addressing the ambient level of ‘soft’ corruption which pervades the Police profession in the form of pro-police bias and defensive tribalism and manifests all too often in Officers either failing to intervene to stop another Officer’s wrongdoing, or to report or criticise that wrongdoing afterwards.
Ben’s faith and trust in the Police, and the rule of law in general, was severely shaken by his brutal treatment at the hands of PC Knights and this had a profound psychological impact upon him. A psychological impact which would have been substantially minimised if other Officers had come to Ben’s immediate assistance and the handcuffs that day had ended up around PC Knights’ wrists, rather than Ben’s.
Likewise, the damage to Ben and to our society as a whole, would have been minimised had the Police led a pro-active and prompt investigation and prosecution of this ‘rogue’ Officer – rather than delaying, prevaricating and only belatedly getting behind the criminal prosecution process which had not been initiated by them, but rather Rob Warner (Crimebodge).
In other words, the Police must ensure that they Police their own ranks as diligently as they do the streets.
This week’s blog concerns a case I have recently settled that showcases three distinct police misconduct issues: old school brutality; modern abuse of police computer systems; and the chronic reluctance of criminal justice authorities to hold rogue officers to account.
“We provoked the breach of the peace…we could have sat down and spoke to him”
At the time of these events, my client Robert Clifford lived with his partner in Essex.
On the evening of 14 October 2019, Robert and his partner had an argument and she called Essex Police, alleging that he had slapped her.
PC Gardner-McLean and PC Brannan responded to the call. Upon arrival the Officers spoke to Robert’s partner at the front door and she advised that she wanted Robert removed from the house.
The Officers entered the premises at around 19.36 and found Robert in the kitchen. PC Brannan immediately pointed his taser at Robert and Robert turned to face the Officers. It was clear that he was under the influence of alcohol. At this point, Robert had his left hand in the front pocket of his hooded top, and his right hand down by his side.
Robert was told to remove his hand from his pocket, which he did, showing that he was not holding anything. PC Brannan then approached Robert and took hold of his arm. Robert pulled away instinctively.
PC Gardner-McLean then approached and handcuffed Robert’s right wrist. Neither Officer had informed my client that he was under arrest, and indeed PC Brannan later said that he did not have any intention to arrest my client at this point. The force they were using against him was therefore prima facie unlawful. A struggle ensued and Robert was taken to the floor face-down, with PC Gardner-McLean’s arm around his neck. PC Gardner- McLean was now straddling Robert on the floor.
PC Brannan then punched Robert in his jaw – described as a ‘distraction’ blow- whilst PC Gardner-McLean pulled Robert’s right arm behind his back. PC Brannan then grabbed his left arm.
In shock and distress Robert continued to struggle, although he remained face-down on the floor. PC Brannan’s assessment (as quoted in the subsequent complaint investigation report) was that the situation was effectively under control –
“I recall PC Gardner-McLean calling for assistance. At this time the situation was no more than a struggle between Clifford, PC Gardner-McLean and myself. Knowing that back up was only a few minutes away I did not feel the need to escalate the level of force above that that had already been used…”
However, PC Gardener-McLean then took out his baton and struck Robert multiple times, first to his back and then three times to the back of Robert’s head which caused him immediate and significant blood loss.
Such was the level of violence used by PC Gardner-McLean, Robert’s partner now intervened and pulled PC Gardner-McLean off Robert, whilst PC Brannan later described his own reaction as follows-
“I did not have hands on Clifford now as I was shocked at the level of force used by my colleague and I could not personally justify any further force towards Clifford at this point.”
Bizarrely, PC Brannan, whom we might describe as the ‘good cop’ in this scenario, then decided that he would respond to his colleague’s excessive force by tasering Robert to prevent any further conflict between the two men. He later described his rationale as follows-
“I was still taken back by the level of force used by PC Gardner-McLean. I made a quick decision that I would deploy my taser at this very point to eliminate any chance at all of the situation flaring back up, as I believed if Clifford felt my colleague trying to cuff him to the rear then Clifford would take the opportunity to struggle again. My decision to taser Clifford was also based on preventing any further injuries coming to Clifford and knowing that he had a head injury that needed assessing quickly as I knew it was caused by an ‘asp’…”
Some of us might think that in fact the appropriate use of PC Brannan’s taser at this point would have been for the officer to point it at his colleague…
Robert was then handcuffed to the rear, and a tea-towel had to be used to mop up the blood coming from his head wound. Other Officers now attended including Inspector Wisbey. PC Brannan took Inspector Wisbey aside and advised that he felt PC Gardner-McLean’s behaviour had been unacceptable as PC Gardner-McLean had “drilled a baton” into Robert’s head and “split his head open.” This serious expression of concern appears to have fallen on deaf ears, however; PC Gardner-McLean was not arrested and instead Inspector Wisbey excused him from deployment for the rest of his shift on ‘officer welfare grounds’. When he himself later viewed the body camera footage, Inspector Wisbey opined that he did not consider it to show “a loss of control, or a deliberate attempt to cause injury to a person for no reason.”
PC Brannan then also took Robert’s partner aside and apologised for his colleague’s actions, explaining that the only reason that he had used his taser on Robert was because he didn’t want PC Gardner- McLean to continue to use force on him.
The Body Camera Recording of PC Lawless, who was one of the ‘back up’ officers arriving at the scene, captured PC Gardner-McLean leaving the property with the words “I’m going to have to get out of here.” – a comment the officer later claimed he could not remember making.
Other officers, interviewed for the complaint investigation process, recalled Gardner- McLean saying “I have really fucked up” and “I think I’ve fucked up and really hurt him.” – more comments PC Gardner-McLean later said he couldn’t recall.
Meanwhile, PC Brannan confessed to his Sergeant: “We provoked the breach of the peace…we could have sat down and spoke to him.”
Injury and Investigation
Robert was taken to Colchester General Hospital for medical treatment, where a (thankfully minor) traumatic brain injury was identified.
After he was discharged from hospital, Robert was then taken to Colchester Police Station. According to the Custody Record, it was stated he had been arrested for common assault and assaulting an emergency worker x 2 i.e. the Police Officers. The arrest circumstances were said to be that my client was “alleged to have assaulted [his partner] – slapped to the face, cause no injury…. During the arrest, DP is alleged to have assaulted PC Gardner-McLean and PC Bannan.”
Following custody processing, my client was examined by a Health Care Professional and then interviewed. Subsequently, it was decided that no further action would be taken against Robert in respect of any of the alleged assaults.
Robert subsequently lodged a complaint which was investigated by the Independent Office for Police Conduct.
During this investigation, it came to light that PC Gardner-McLean had unlawfully accessed Police computer records regarding Robert, the incident and Robert’s complaint. Once again, it was PC Brannan who ‘blew the whistle’ about this after PC Gardner-McLean announced to him that he had discovered that the offences of “Assaulting emergency workers” (i.e himself and PC Brannan) were not going to be pursued against Robert. It subsequently transpired that PC Gardner-McLean had accessed the Police Computer system on numerous occasions to check on the progress/ outcome of the investigation, despite lacking a policing purpose to do so, and had also accessed and viewed Robert’s NHS records in relation to the injuries he had sustained at the officer’s hands. PC Gardner-McLean later tried to excuse his behaviour in this regard by claiming it came out of sympathy for Robert, stating that he wanted to “make sure he’s alright because I’m human.”
The suggestion of genuine concern for Robert’s welfare was thrown into doubt by the fact that PC Gardner-McLean also accessed records relating to other investigations involving Robert claiming that he wanted to see how other officers had treated Robert and see if there was anything he could have done differently. We may be sceptical about this rationale, and it certainly seems the IOPC were.
As a result of the brutal attack by PC Gardner-McLean, Robert was left with recurrent headaches and feelings of nausea as well as depression and a deep- seated distrust of the Police, which disturbed him.
The IOPC led investigation report was highly critical of PC Gardner-McLean’s behaviour on a number of grounds, summarising the evidence as follows –
When officers arrived at the address Robert was calm and immediately removed his hand from his pocket when instructed to do so. PC Gardner-McLean was adamant that Mr Clifford had a knife concealed in his left trouser pocket – however PC Brannan was confident from what he could see that Mr Clifford did not have a knife. Indeed, at no point thereafter was Robert searched for a knife – and a valid question to ask is why, if PC Gardner-McLean genuinely thought at the time that Robert had a dangerous weapon concealed on him, he did not ensure that Robert was searched for that weapon.
On arrival, PC Gardner-McLean made no attempt to communicate with Robert about the risk he posed/ establish whether in fact he did pose a risk. Furthermore, when placing the handcuffs on Robert, there was no attempt by PC Gardner-McLean to inform Robert that he was under arrest. This lack of communication/ explanation heightened tensions unnecessarily.
PC Gardner-McLean in both his written statement and in interview under caution, claimed that he hit Robert only once to the back of his head “using not a lot of force” – however, PC Brannan described seeing Gardner-McLean strike Robert’s head three times, and this was supported by the Body Worn Video.
It goes almost without saying that the College of Police’s Code of Ethics requires that Officers must in all cases “Use only the minimum amount of force necessary to achieve the required result”. It is clear that an Officer has gone far beyond that requirement when one of his own colleagues is reporting his behaviour to other Officers in the immediate aftermath of the incident – an occurrence which we must applaud, at the same time as recognising its rarity.
Such was the level of force used by PC Gardner-McLean that he was not only investigated for gross misconduct but indeed for GBH (Section 20 of the Offenses Against the Person Act 1861).
On 20/11/19 PC Gardner-McLean was served with a Notice of Investigation outlining the following allegations:-
That he used excessive force when he struck Mr Clifford with a baton.
That he accessed confidential information relating to Mr Clifford using Police Computer Systems, without a legitimate policing purpose for doing so.
PC Gardner-McLean was interviewed by Essex Police under criminal and misconduct caution on 16 December 2019 and again on 12 March 2020.
Holding the Police to Account
Despite matters being referred by the IOPC to the Crown Prosecution Service in April 2020, a charging decision was not made until November 2020 and it was disappointing, although not perhaps ultimately surprising, given the inherent bias within the criminal justice system when it comes to the policing of the Police. The CPS decided to NFA (take no further action) against PC Gardner-McLean in regards to the offences of ABH and GBH, and instead charged the officer with just one count under S.1 Computer Misuse Act for unauthorised access to data.
Following the CPS decision not to prosecute for the offences of violence, the IOPC in collaboration with the Appropriate Authority (a senior member of Essex Police Professional Standards Department) decided that PC Gardner- McLean would not even face any misconduct charges in respect of his use of force.
Eventually, even the data misuse prosecution fizzled out, with the CPS concluding it was not in the public interest to continue, and therefore offering no evidence at Chelmsford Crown Court in June 2021. PC Gardner-McLean was to receive only a ‘written warning’ for his blatant misuse of the trust place in him in this respect: a mere slap on the wrist indeed.
In my opinion, PC Gardner-McLean’s behaviour after the incident, and indeed his wider treatment by the Force, seem to be indicative of the ‘one rule for us, one rule for everyone else’ culture which can become endemic in policing. He was not arrested despite his grossly excessive use of force; he was investigated but ultimately not prosecuted for that violence; and he clearly felt he could use the police database for his own personal purposes and get away with it – and effectively did so.
That was not the end of the story, however. I brought a civil claim on behalf of Robert, and faced with the threat of civil court proceedings, Essex Police agreed to pay out damages in the sum of £17,500 plus legal costs. It was clear to me that the Police did not want this case to see the light of day in a forum over which they have far less influence than criminal or misconduct tribunals.
Even in the face of great obstacles therefore, justice can be won for those victims of Police misconduct who have both the perseverance and courage to ride out initial disappointments and the guidance and expertise of the right lawyer.
Ultimately, Robert was let down by Essex Police, the CPS and the IOPC, but not by me.
There was a lot of media attention last week on the case of my client Bryan Allden who was cruelly cost his career as a highly skilled automotive engineer as a result of Police brutality.
Bryan’s hand was fractured when he was subjected to an over-head baton strike by West Midlands PC Paul Knowles in September 2015. You can read the full details of Bryan’s case in my previous blog here.
I am proud to have won significant compensation for Bryan, commensurate with the severity of his injury and the financial impact which it had upon him, but Bryan would be the first to tell you that there is a lot more to the phrase ‘doing justice’ than a monetary settlement. The unreserved apology from West Midlands Police for PC Knowles’ unprovoked attack upon Bryan gave him further comfort and satisfaction. But both he and I were left to reflect in disappointment at the failure of WMP, in conjunction with the Independent Police Complaints Commission (IPCC – now the IOPC), to properly discipline the officer.
PC Knowles was unable to offer any legitimate justification for his vicious attack on Bryan. The officer stated that he was ‘blinded’ by light from Bryan’s mobile phone (with which Bryan was filming a football crowd). We can treat such a suggestion with scepticism, but even were it true, the officer’s response – lashing out with his baton when on his own evidence he couldn’t see what he was hitting – was utterly reckless.
Despite the IPCC report finding that PC Knowles had a case to answer for misconduct, and observing that the officer’s overhead downward baton strike could easily have caused fatal injuries had it connected with Bryan’s head, the officer ultimately received only the half-hearted sanction of ‘management action’ in the form of being sent on a ‘first aid’ refresher course: this scenario would be almost laughable if it wasn’t so serious.
At the end of my previous blog I reflected on the fact that the man who deserved to lose his career after this incident was not Bryan, but PC Knowles: indeed, if Bryan had attacked the officer in a similar manner and broken his hand, Bryan would have been facing not just the loss of his job but also his liberty.
Now, indirect justice has been delivered to Bryan, as PC Knowles – subsequently Detective Constable Knowles – has this month been found guilty of gross misconduct and dismissed from the Force, after committing a data breach which could have jeopardised a murder trial.
The fact is, however, that this is a classic example of how too many police officers get too many second chances, as a result of a habitually toothless complaints and misconduct regime.
Bryan’s complaint was effectively brushed under the carpet, the officer was allowed to continue serving in the privileged role of Detective Constable and as a result almost inflicted further damage to other innocent people’s lives; yet another gross breach of trust.
The systems are in place to deal with rogue officers like PC Knowles, but all too often the willingness to do so is lacking. Decisionmakers need to become more robust and resistant to the centrifugal pull of pro-Police bias in misconduct investigations, and cases like this are a salutary reminder of exactly why. Let’s really put the Independence in the IOPC and let them set the tone.
Click below to hear my interview with BBC West Midlands regarding this case, and my thoughts on the need for Police reform:
In a week in which Police Chiefs have come closer to acknowledging institutional racism in their profession, I reflect upon yet another case involving a non-white child subjected to unlawful force and detention by Metropolitan Police officers.
The February 2021 report of Her Majesty’s Inspectorate of Constabulary highlighted the following grave concerns-
“Over 35 years on from the introduction of stop and search legislation, no force fully understands the impact of the use of these powers. Disproportionality persists and no force can satisfactorily explain why. In 2019/20, Black, Asian and Minority Ethnic people were over 4 times more likely to be stopped and searched than White people; for Black people specifically, this was almost 9 times more likely. In some forces, the likelihood was much higher. Black people were also 18 times more likely than White people to be searched under section 60 of the Criminal Justice and Public Order Act 1994. This gives Officers time-limited powers to search any individuals in an area, without requiring reasonable grounds, in order to recover offensive weapons or dangerous instruments in anticipation of serious violence”.
My client, who for the purposes of this blog I will call Daniel, is of mixed-race heritage and was only 13 years old at the time of the incident in September 2018.
Daniel, his brother and a friend were cycling home after having their hair cut at the barbers, when suddenly a Police patrol car drove up dangerously close behind them. The boys feared being run over.
Two male Metropolitan Police Officers alighted from the vehicle and one of them grabbed hold of Daniel, pushing him against a wall, handcuffing him tightly and then pushing him against the rear of the Police car. Daniel’s requests that the cuffs be loosened were ignored.
The Officer who had taken hold of him then searched Daniel – allegedly, and apparently ‘speculatively’, for drugs – without providing Daniel with his details or, indeed, any grounds for the search. The officer also failed to issue a written record of the search – all of this amounting to a gross breach of the requirements of Code A of the Police and Criminal Evidence Act 1984 (PACE) which are designed to prevent abuses of Police power in ‘street search’ situations.
Another safeguard to which people – especially children – who are being subjected to Police stop/search powers are entitled, is for the Officer to record the interaction on body worn video; but at no point did the Officer dealing with Daniel do so.
Daniel later described the behaviour of the Officer towards him as being like that of an “aggressive bully”.
The second Officer had also grabbed hold of and detained Daniel’s friend, although Daniel’s brother was not apprehended.
After approximately 10 minutes detention the boys were released. Prior to them being released the second Officer – the one who had taken hold of Daniel’s friend – repeatedly told both boys that neither of them had been “detained or searched” despite the fact that this was manifestly untrue, and Daniel was actually in handcuffs whilst these assertions were being made by the Officer.
It is my view that the Officer’s assertions to Daniel and his friend to the effect that neither of them had been ‘detained or searched’ when they certainly had been, was nothing less than a mendacious attempt to mislead both boys, who were minors, as to their rights and thereby for the Officers to escape proper scrutiny/accountability for this wholly unjustified stop.
The incident may only have lasted for 10 minutes in real time, but it felt a lot longer to a 13 year old boy subjected to such overwhelming and terrifying use of force by adults. These events left Daniel not only with pain and bruising to his wrists from the handcuffing – which was in itself an utterly unnecessary and degrading act of assault perpetrated upon a frightened and compliant child – but also a severe psychological impact, later diagnosed as an Adjustment Disorder. Daniel understandably felt that he had been targeted and subjected to excessive force because of his ethnicity. He suffered significantly disturbed sleep for around 6 months after the incident, including frequent nightmares, and his tiredness and fears about the incident also adversely effected his schooling.
We can only hope that like the physical marks, the mental trauma of this incident will fade completely over time – but simply put, Daniel should never have been subjected to this ordeal at all.
The Officers involved in this incident gave a hodgepodge of excuses to attempt to justify their treatment of the boys. They lazily alluded to past reports of thefts from cars in the area, although they were not responding to any current crime report and could not explain why they ‘reasonably’ thought the boys might be involved in such thefts. Furthermore, on taking hold of Daniel, the officer who handcuffed him first claimed he thought Daniel had a weapon, and then purported to search him for ‘drugs’. Daniel also remembers the officer noticing that there was broken glass on the road nearby, after he had handcuffed Daniel, and asking him if he was responsible for it.
What on earth was the suspected offence here? Theft – drugs – weapons – criminal damage? In truth, this appears to have been a classic example of the ‘round up the usual suspects’ methodology of lazy, corrupt policing. The officers’ ‘suspicion’ of Daniel and his companions appears to have been simply plucked from thin air on the basis of their age and/or ethnicity – in other words a totally speculative stop and search of a group of youths simply because of who they were, rather than what they were doing.
The failure of the Officer who apprehended Daniel to activate his body camera, plus the other Officer’s attempt to convince Daniel and his friends that they had not been subjected to use of Police stop/search powers, can be seen in this context as an attempt by those Officers to avoid scrutiny for what they must have known was a blatant misuse of their powers.
The Defence document later filed by the MPS in relation to this matter sought to place great reliance on the fact that shortly before the incident, there had been a theft of a bag from a car in that area and there was also smashed glass on the road near to where the incident took place, consistent with a vehicle having been broken into – but then took the wind out of its own sails by admitting ‘The Defendant’s Officers were not specifically aware of either of these facts prior to the incident…’
Fortunately, Daniel’s mother – who is herself a serving Police Officer – fully understood the rights to which her son should have been entitled and also how to tackle the often obstructive mechanisms of the Police complaint system. An investigation into the incident by the MPS Professional Standards Unit concluded as follows:-
• There was no justification for handcuffing Daniel. • In regards to carrying out the search, the Officer failed to comply with any of the requirements of PACE. • The Officer failed to comply with Metropolitan Police policy by not recording any of his actions on his body worn video. • The Officer failed to properly consider Daniel’s welfare and behaved in an aggressive manner towards him, especially considering Daniel’s age.
The Officer was found to have a case to answer and was ultimately found guilty of misconduct in relation to his use of force upon Daniel, although for this he received only the lowly sanction of ‘Management Advice’.
I subsequently brought Civil Court proceedings on behalf of Daniel against the MPS, and Daniel’s claim has now been settled for a substantial amount of damages (currently pending Court approval as Daniel is a child) and a formal letter of apology from the MPS – albeit not until after we had won a contested Court hearing to confirm Daniel’s right to have his damages claim heard before a Judge and Jury, rather than a Judge alone which is what the MPS wanted.
The apology letter written by Chief Inspector O’Connor acknowledged that the Officers’ actions were unlawful and that this was a deeply unpleasant experience for a 13 year old to undergo. Furthermore, the Chief Inspector wrote:-
The Metropolitan Police Service is committed to ensuring that it provides the highest quality of service from its Officers. It is clear that in this instance that the MPS fell well below that standard. Therefore, on behalf of the MPS, I apologise to you and also to your family who were indirectly impacted.
It is of note however, that the letter of apology contained no acknowledgement of the issue of race – or even of Daniel’s legitimate perception of his aggressive mistreatment and handcuffing by a white Officer.
Daniel and his companions were simply young boys cycling home, not doing anything untoward or suspicious. If the Metropolitan Police Service continue to behave in such a manner – namely stopping, assaulting and frankly terrorising youths without any proper grounds for detaining them – then the culture of Police mistrust and poor community relations is bound to continue. Earlier this month the National Police Chief’s Council and College of Policing announced a new race plan which will accept that policing still contains racism, discrimination and bias for which the Police Chiefs of England and Wales are ashamed, apologise, and are determined to change.
This is a welcome start, albeit long overdue – but we need to see change in the actions of Officers on the street and not just in boardroom policy speak.
Otherwise more young children will suffer the mental scars caused by abusive and authoritarian policing, further distorted by racial bias.
As the custodians of some of the most sensitive personal data which exists about any of us – whether or not we have a clean criminal record, or if we do have convictions or cautions, what they relate to – the Police owe an unparalleled duty to protect such data and only disclose it to appropriate parties with the utmost accuracy. Incorrect criminal records data could have a devastating effect upon a person’s life, and in this respect I am minded to think of a client of mine who almost suffered catastrophic consequences to his career as a result of bungling by British Transport Police.
My client, who for the purposes of this blog I will identify as “David”, was still in high school when he came to the attention of British Transport Police (BTP) at the age of 15, in relation to a minor criminal damage offence.
In March 2010 David, in the presence of his mother, accepted a Reprimand for criminal damage. Reprimands (now known as Youth Cautions) were in 2010 a form of verbal warning delivered by Police officers in respect of minor offences. Any Reprimand or Caution can only be administered by the Police if the suspect admits to the offence: in that respect, therefore, it is almost a form of ‘back door’ conviction. By its very nature, it is generally only suitable to ‘low level’ offences.
David went on with his life and graduated from University.
Then, in early 2020 David applied for an enhanced Disclosure and Barring Service (DBS) check in connection with his new job. He was a young man of good character, having had no further adverse interactions with the Police since 2010. One of the key roles of the DBS is the maintenance of the Children’s and Adult’s Barred Lists, which identify individuals who should be prohibited from jobs in which they might pose a risk of harm to vulnerable individuals.
However, what should have been a routine bureaucratic exercise turned into an experience verging on nightmare for David, because in February 2020 the Disclosure and Barring Service gave David and his employers notice that it was proposed that he be included on the Children’s Barred List and Adults Barred List in light of an alleged Reprimand said to have been issued in March 2010 for the offence of “Making an indecent photograph or pseudo photograph of a child” contrary to S.1 (a) Protection of Children Act 1978.
David was in a state of shock, and spoke to his father for advice. His father was good friends with a solicitor who recommended my services. Upon review, it became clear that the information which the DBS received, which led them to believe that my client had been reprimanded for the said offence and hence should be included on the Barred List, was provided to them by British Transport Police.
David knew he was innocent of this offence and couldn’t understand how this had happened. To his horror he was now facing the potentially life-long stigma of being labelled a paedophile, as well as losing his current job and having his future employment prospects severely blighted by the appearance of his name upon the Barred Lists.
As part of my investigations on behalf of David, I made a Subject Access Request to BTP and received documentation confirming that the only offence he had ever been Reprimanded for was indeed ‘criminal damage’, he had no reprimands, cautions or convictions in relation to any sexual offence whatsoever.
The information apparently provided by BTP to the DBS in January 2020, which stated that David had admitted and received a reprimand for the said sexual offence was entirely inaccurate and without foundation.
The DBS then, quite rightly, withdrew the proposal to include David’s name upon the Barred Lists (although not until he had undergone almost 3 months of stress and anxiety).
Having therefore helped to clear David’s name with the DBS, and ensure he did not lose his job, I then brought a claim against British Transport Police on David’s behalf, for this gross mishandling of his sensitive personal data.
I am pleased to confirm that I have recently concluded David’s claim on the basis of a payment of damages in the sum of £10,000, together with his legal costs.
We should all be entitled to trust that the Police will exercise the utmost care and attention when providing disclosure reports to the DBS, especially regarding matters which could blight the subject’s personal relationships and employment prospects. Thankfully, the error here was identified and corrected before it had gone too far; if not David could have been left to pick up the pieces of a career ruined by slip-shod Police administration.
One of the most common offences for which people appear before the Magistrates Court is that known colloquially as “Drunk & Disorderly” i.e an offence contrary to Section 91 of the Criminal Justice Act 1967 –
Drunkenness in a public place.
(1)Any person who in any public place is guilty, while drunk, of disorderly behaviour … shall be liable on summary conviction to a fine not exceeding [level 3 on the standard scale].
(2)The foregoing subsection shall have effect instead of any corresponding provision contained in section 12 of the Licensing Act 1872, section 58 of the Metropolitan Police Act 1839, section 37 of the City of London Police Act 1839, and section 29 of the Town Police Clauses Act 1847 (being enactments which authorise the imposition of a short term of imprisonment or of a fine not exceeding £10 or both for the corresponding offence) and instead of any corresponding provision contained in any local Act.
(3)The Secretary of State may by order repeal any provision of a local Act which appears to him to be a provision corresponding to subsection (1) of this section or to impose a liability to imprisonment for an offence of drunkenness or of being incapable while drunk.
(4)In this section “public place” includes any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise.
It is manifest that all elements of the offence must be proven for a conviction to be secured i.e-
that the person is drunk AND
is behaving in a ‘disorderly’ way AND
the conduct occurs in a ‘public place’.
Equally, for an officer to make a lawful arrest for this offence he or she must have an objectively reasonable suspicion that all three parts of the offence are satisfied.
Whether a person is ‘drunk’ and whether their behaviour is ‘disorderly’ are notoriously woolly terms with a lack of precise definition, and will come down to the impression formed by the Court on the balance of the evidence – which may include video footage and is highly likely to include a statement by the arresting officer, and his or her colleagues, ticking off the following items of what we might call ‘pro-forma testimony’-
the suspect’s “eyes were glazed”
“his speech was slurred”
“he was unsteady on his feet”
“I could smell intoxicating liquor on his breath”
As a result of their experiences of front-line Policing, officers giving evidence in such cases frequently claim to be “experts in drunkenness”.
What is not normally fair game for debate or subjective opinion, however, is the requirement that the incident occurred in a ‘public place’. Although this can include private premises to which the public are permitted access, that definition does not include a private dwelling house or, indeed, the paths, concourses, corridors and access routes of a private housing estate or apartment block, to which access can only be gained through a locked door/ gateway with permission from the residents, on a case-by-case basis.
The landing of a block of flats, for example, to which access is via a secure door – with visitors having to request entry via an intercom or buzzer system – is not a public place as the general public have no right of entry onto the premises: only residents, their invited visitors and bona fide individuals such as tradesmen and postmen (who can be deemed to have the implied consent of the residents to enter).
A Police decision to overlook this key component of the offence renders them liable for false imprisonment even if the other two elements of the offence are arguably made out – although in such circumstances, the Police may argue that damages should be merely nominal (i.e minimal) on the basis that their failure is a ‘technicality’ as the person could have been legitimately arrested for an alternative offence, such as breach of the peace (which can be committed on private property, including in a person’s own home).
However, such a defence does not have to be accepted. I have recently settled a claim for a client who was arrested for allegedly being drunk and disorderly and who was detained overnight in Police custody. The arrest was prima facie unlawful because it was carried out on private property. Because of this, the Police admitted liability for false imprisonment and assault and battery at an early stage but argued (as above) that only nominal damages should apply. Accordingly, the Police offer of settlement was only £1,000 inclusive of legal costs. I am delighted to report that after negotiations and the threat of legal proceedings, the Police force in question have now agreed to settle my client’s claim for substantial damages plus legal costs, and also to issue a formal letter of apology.
If you have been arrested for drunk and disorderly behaviour in questionable circumstances, particularly if you suspect that the arrest did not take place in a public place, please contact me for expert advice and representation.
I have blogged on numerous previous occasions about claims which I have brought on behalf of clients to whom the Police have attempted to deny access to justice by invoking Section 136 of the Mental Health Act (MHA), most recently that of a gentleman who was bundled off the street into the back of a Police car against his will whilst he was doing nothing more than simply walking along a Worcestershire road. There was absolutely no suggestion that my client had committed any criminal offence, but the police officers involved subsequently attempted to justify their kidnapping of my client – for it amounted in all particulars to exactly such an act, forcing him into a car and driving him away against his will – by reference to their powers of detention under the Mental Health Act and the Force then tried to use that same legislation not merely to raise a defence to my client’s legitimate claim but – chillingly – to attempt to deny him the opportunity to bring the claim in the first place: in effect, to shut the doors of Court in his face.
Fortunately, I opened them.
Section 136 of the Mental Health Act 1983 provides as follows-
(1)If a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons—
(a)remove the person to a place of safety within the meaning of section 135, or
(b)if the person is already at a place of safety within the meaning of that section, keep the person at that place or remove the person to another place of safety.
(1A)The power of a constable under subsection (1) may be exercised where the mentally disordered person is at any place, other than—
(a)any house, flat or room where that person, or any other person, is living, or
(b)any yard, garden, garage or outhouse that is used in connection with the house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms.
(1B)For the purpose of exercising the power under subsection (1), a constable may enter any place where the power may be exercised, if need be by force.
1C)Before deciding to remove a person to, or to keep a person at, a place of safety under subsection (1), the constable must, if it is practicable to do so, consult—
(a)a registered medical practitioner,
(b)a registered nurse,
(c)an approved mental health professional, or
(d)a person of a description specified in regulations made by the Secretary of State.]
(2)A person [removed to, or kept at,] a place of safety under this section may be detained there for a period not exceeding [the permitted period of detention] for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an [approved mental health professional] and of making any necessary arrangements for his treatment or care.
Section 135 of the Mental Health Act defines a “Place of Safety” in the following terms-
(6)In this section “place of safety” means residential accommodation provided by a local social services authority under [F15Part 1 of the Care Act 2014 or] [F16Part 4 of the Social Services and Well-being (Wales) Act 2014] F17. . . , a hospital as defined by this Act, a police station, [F18an independent hospital or care home] for mentally disordered persons or any other suitable place F19….
[(7)For the purpose of subsection (6)—
(a)a house, flat or room where a person is living may not be regarded as a suitable place unless—
(i)if the person believed to be suffering from a mental disorder is the sole occupier of the place, that person agrees to the use of the place as a place of safety;
(ii)if the person believed to be suffering from a mental disorder is an occupier of the place but not the sole occupier, both that person and one of the other occupiers agree to the use of the place as a place of safety;
(iii)if the person believed to be suffering from a mental disorder is not an occupier of the place, both that person and the occupier (or, if more than one, one of the occupiers) agree to the use of the place as a place of safety;
(b)a place other than one mentioned in paragraph (a) may not be regarded as a suitable place unless a person who appears to the constable exercising powers under this section to be responsible for the management of the place agrees to its use as a place of safety.]
Subsequently, any person who believes that they were wrongfully detained by Police officers purportedly exercising “Section 136” powers and who now wishes to commence an action seeking damages arising out of the incident, requires the prior permission of the High Court in accordance with Section 139 of the Mental Health Act which provides as follows –
(1)No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act, or in, or in pursuance of anything done in, the discharge of functions conferred by any other enactment on the authority having jurisdiction under Part VII of this Act, unless the act was done in bad faith or without reasonable care.
(2)No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions.
In other words, if the Police invoke Section 136 of the MHA as justification for a person’s detention, then the normal freedom available to anyone who has been detained against their will, to commence an action for False Imprisonment or a claim under the Human Rights Act in the civil courts is barred, and any claim which they did issue without first obtaining permission from the High Court, as set out above, would be deemed a nullity.
This is a significant restriction on the rights of an ordinary citizen to seek an accounting in front of the open tribunal of the County Court or High Court for loss of liberty imposed or injury inflicted by agents of the state, and could have amounted to a gross defacement of the constitutional principle of access to justice which underpins the British legal system, were it not for the good health and robust independence of the legal system in England and Wales. Over the years lawyers and judges faced with the provisions of the Mental Health Act have set down cogent legal arguments and given judgments which correct the imbalance of power that might otherwise arise if the Police were simply allowed to use Section 139 as an unquestioned shield against the claims of those purportedly detained under its terms. Indeed, I am proud to have played my own part in the development of this case law, as set out in this case report – Johnston v Chief Constable of Merseyside.
In the case of Winch v Jones  Q.B. 296, the Court of Appeal determined that the test to be applied when considering to grant permission under section 139 was whether, on the materials immediately available to the court, the complaint appeared to deserve fuller investigation:
“As I see it, the section is intended to strike a balance between the legitimate interests of the applicant to be allowed, at his own risk as to costs, to seek the adjudication of the courts upon any claim which is not frivolous, vexatious or an abuse of process, and the equally legitimate interests of the respondent to such an application not to be subjected to the undoubted exceptional risk of being harassed by baseless claims by those who have been treated under the Acts. In striking such a balance, the issue is not whether the applicant has established a prima facie case or even whether there is a serious issue to be tried, although that comes close to it. The issue is whether, on the material immediately available to the court, which, of course, can include material furnished by the proposed defendant, the applicant’s complaint appears to be such that it deserves the fuller investigation which will be possible if the intended applicant is allowed to proceed.”
In Seal v Chief Constable of South Wales Police  1 WLR 1910, the appellant had been detained under section 136 of MHA 1983 and removed to a place of safety, following his arrest for breach of the peace. His claim for damages alleged that there had been a misuse of the power to detain him. Here the modern incarnation of the Court of Appeal upheld the test as set down in Winch v Jones,in the context of the post- 1998 Civil Procedure Rules of England and Wales. Again, in this key judgment, the Court took the side of the ‘citizen’ against the ‘State’.
As Baroness Hale astutely observed at paragraph 58 of the Seal judgment –
Police officers lead difficult and dangerous lives. They have to make snap decisions in complex situations where there is no time for quiet contemplation. They deserve the support of the public, the courts and the law. But it has not been shown why they should need more protection and more support when they remove people to a place of safety under section 136 of the Mental Health Act 1983 than they have when they conduct an ordinary arrest.
I also cheerfully endorse the reference at paragraph 18 of this judgment to the principle of English law enshrined by Viscount Simmonds in 1960, a rallying call in support of access to justice and civil liberties made in the language not of the revolutionary but the traditionalist –
It is a principal not by any means to be whittled down that the subject’s recourse to her Majesty’s Courts for the determination of his rights is not to be excluded except by clear words.
And what a long and honourable tradition that is, that underpins our modern liberties and democratic state.
What is disappointing to me is that despite such clear guidance from the Courts, the Police still routinely trot out “Section 139” as a defence to frustrate, delay and demoralise Claimants who clearly have legitimate claims but who are faced with the potentially daunting prospect of having to go to the High Court to clear an artificial hurdle before the Police will properly and reasonably address their claims; all too often I see Police Forces wasting everybody’s time and money forcing High Court proceedings to be brought in cases where there is simply no basis for suggesting that the claim has no prospect of success or is ‘frivolous, vexatious or an abuse of process.’
In this respect, Police Forces often utilise Mental Health legislation to play cynical, tactical games for a litigation advantage, and thereby seek to hide their Officers from proper scrutiny for their actions behind legislation primarily intended to protect medical professionals from vexatious litigants.
There are many occasions on which acts which deprive individuals of their liberty for Mental Health reasons deserve the full investigation that substantive civil proceedings will allow; if you believe you have suffered in this way at the hands of the Police, or they are using the provisions of the Mental Health Act to attempt to frustrate your claim or complaint, please contact me for expert advice.
In certain legal jurisdictions, ‘jaywalking’ is the offence committed by pedestrians who cross a carriageway at a place other than a designated crossing point. No such offence exists in the UK, where the Highway Code does not seek to limit the freedom of movement of pedestrians, allowing individuals to make their own judgment as to whether or not it is safe, based on the well-known precepts of the “Green Cross Code.”
On 3 December 2020 my client Paul McSweeney was working at Euston House on Eversholt Street, over the road from Euston Station. At approximately 1pm he went to buy lunch from Euston Station.
Before crossing Eversholt Street, Paul looked left and right and made sure that there were no vehicles coming from either direction.
As Paul crossed the road he turned back to speak to his colleague, Rob. As Paul did so he heard someone bellow from behind him “Get out of the road” – despite the fact that there was no nearby traffic.
Paul turned around to see who had shouted and saw that a police officer, PC Armstrong, was staring at him from the top of the stairs outside Euston Station near to a Marks and Spencer’s store. There were three other police officers with PC Armstrong; another Metropolitan Police constable, and two officers from British Transport Police.
Paul shouted back at PC Armstrong words to the effect of “I’m 52 years of age and I managed to survive this long, thank you”. PC Armstrong shouted back for Paul to come up to him. Paul was in fact already walking up the stairs to go past the Marks and Spencer’s store, on his way to the Sainsbury’s store. PC Armstrong and Paul then met at the top of the stairs.
PC Armstrong demanded that Paul stop and speak to him. Paul replied that he was walking to the shop and PC Armstrong could walk with him if he wanted.
Out of the blue, PC Armstrong then threatened Paul with the words “Don’t walk away from me or I’ll cuff you”. Paul was shocked; he stopped and raised his arms and said “For what?” PC Armstrong then approached Paul and pushed him in the chest.
PC Armstrong then grabbed Paul’s right arm, whilst another officer took hold of his left arm.
PC Armstrong pushed Paul up against a pillar and twisted his right arm up behind his back causing Paul considerable pain whilst telling him, “Stop getting fucking aggie with me.”
Paul asked PC Armstrong several times to “Let go.”PC Armstrong asserted that he had only wanted to speak to Paul about ‘road safety’. Paul again asked PC Armstrong to release his grip, telling the officer “You’re fucking hurting me.”Outrageously, PC Armstrong, still tightly gripping my client, now warned Paul to ‘stop swearing’ otherwise he would be arrested for “Public Order.”
Meanwhile, the incident had attracted the attention of passing members of the public, one of whom, Professor Jean Parker, stopped and said that she had seen what had happened. PC Armstrong replied, “Okay, can you go away.”
Professor Parker told PC Armstrong that she was a doctor and expressed concern as to how PC Armstrong was restraining Paul. PC Armstrong again tried to dismiss her saying, “It’s nothing to do with you.” The Officer then accused Paul of “Creating a public order” situation, although he was clearly the real culprit.
Paul again asked PC Armstrong to “drop” his arm and Professor Parker told PC Armstrong “I really don’t think you’re helping the situation.” PC Armstrong once again told Professor Parker to “Go away.”
Professor Parker again asked PC Armstrong to release Paul and PC Armstrong advised that he would not because Paul was “Shouting and swearing in a public place.” In fact, any shouting or swearing on the part of my client had come solely as a result of the officer’s unprovoked assault upon him.
Professor Parker pointed out that it was PC Armstrong who had in fact shouted at Paul and the conversation continued until eventually PC Armstrong relented and released his grip on Paul.
PC Armstrong again sought to justify his conduct by reference to ‘road safety’. Professor Parker responded, “I think it was great of you to point it out to him …….. now I think we should just let him go.” PC Armstrong replied, “Don’t lecture me how to do my job.”
Paul now walked away and as he did so, PC Armstrong called after him in a sarcastic tone, “Youhave a great day sir, take care, take care, all the best, enjoy your life.”
When Paul returned home that night he noticed bruising on his upper left arm from the Officer’s totally unnecessary and violent restraint
The following day Paul called both the Metropolitan Police and British Transport Police to report the incident. Later the same day he received a call from a Chief Superintendent to whom Paul made a formal complaint. After making his complaint, Paul noticed that he also had bruising to his upper right arm as well.
Paul’s complaint was investigated by the Directorate of Professional Standards (PSD), who upheld the complaint on the grounds that PC Armstrong had been uncivil to Paul and had used unlawful force against him-
“PC Armstrong did not need to detain you just to speak with you…He had not detained you for the purpose of a search, nor did he mention that you had committed a criminal offence and that you were going to be arrested, therefore making the initial use of force against you unjustified. In my opinion, I do not believe that you had committed a public order offence.”
Although Paul’s detention at the hands of PC Armstrong had only lasted a matter of minutes, it had a profound psychological impact on him, which went over and above the bruises on his arm: Paul found that his whole faith in the Police had been severely damaged and he now experienced anxiety on seeing Police officers.
I have now sued the Met on Paul’s behalf and recovered substantial damages for him: unfortunately, however, no amount of money can restore his trust in the Police as custodians of our law and order.
PC Armstrong may have initially thought he was being helpful to Paul by shouting a ‘warning’ – regrettably, he then let arrogance and aggression take over when he evidently thought Paul was being ‘ungrateful’ towards him, such that the only real risk of harm that Paul faced that day came not from the traffic, but from the officer.
Some Police officers may think that their uniform elevates them into the role of ‘teachers’ patrolling a playground where members of the public are too easily seen as ‘children’. Others of us may think, that same uniform turns those officers into nothing less than school bullies.
Paul might have found it easier to come to terms with what happened to him had the Police complaints system offered true accountability, but sadly it did not. The role of the Police in our communities is to maintain order and exert a calming influence; instead PC Armstrong single- handedly created a conflict out of nothing. Despite finding that PC Armstrong had unlawfully assaulted and detained Paul, the Professional Standards Department closed its eyes to the seriousness of the officer’s misconduct, and found that the appropriate ‘punishment’ was merely for PC Armstrong to “sit down with the Chief Inspector, review the Body Worn Video, discuss and reflect on this and take away valuable learning.”
I find it hard to believe that the Police would endorse such a friendly resolution for a member of the public who had reacted to one of their officers in the same way that PC Armstrong did to Paul.
Serious questions are raised by this incident as to whether PC Armstrong is fit to be a Police officer at all, but the MPS showed no interest in answering them. Changes to Policing culture in this regard, cannot come too soon. This week, Cressida Dick’s replacement, acting Commissioner Sir Stephen House, called for powers to allow Chief Constables to sack ‘bad’ officers faster. Alongside any such powers, however, would be required a significant change in the attitudes of the people who administer such powers i.e the PSD bureaucracy – which to many observers such as myself displays so much pro-Police bias that it is practically a wing of the Police Federation.
The names of the witnesses referred to in this blog have been changed.
A case which I have recently concluded is yet another reminder of the absolute importance of attention to detail in the processing of data connected with legal matters, where sloppy errors by law enforcement officials – here West Yorkshire Police – can have serious consequences for innocent individuals.
My client Emily Baker is a person of good character and has no previous convictions or cautions.
Unbeknownst to Emily, on 24 August 2020 a Miss Emily Barker was involved in a road traffic accident, Miss Barker failed to stop although her vehicle’s registration was noted. The officer in the case then extracted the vehicle’s registered keeper’s address from the Police National Computer. However, when obtaining further details regarding the registered keeper, the officer misspelt Miss Barker’s name, crucially missing out the “r”, and thereby linking the incident to my client’s details rather than those of Miss Barker.
A request to furnish driver details was then sent to Miss Barker’s (correct) address. However, the letter to Miss Barker included my client’s date of birth and driving licence number. Miss Barker did not return the request.
Miss Barker was subsequently charged by West Yorkshire Police with failing to provide the identification of the driver. On 2 October 2020 Miss Barker was convicted at Bradford Magistrates Court of failing to stop, however due to the earlier mistake 6 points were placed on my client’s licence and a fine was issued in her name (Emily Baker).
Miss Barker (the real culprit) did not pay the fine and therefore a warrant of control was issued by the Court, and High Court Enforcement Officers from Marstons Recovery were instructed to obtain payment of the fine.
On 6 September 2021 my client received a letter from Marstons Recovery alerting her to the points on her licence and the fine, which including other charges, was now £1,126. Emily was understandably shocked and distressed by this, and on learning of the mistake immediately alerted Bradford Magistrates Court and attempted to rectify the situation. The Court replied that they could not rectify the matter themselves and that instead Emily would have to make a report to the Police (which she did, by way of a complaint).
A few weeks later – in fact on Emily’s birthday – High Court Enforcement Officers from Marstons Recovery attended her home address. The Officers possessed a warrant and locksmith authorisation to enter the address and seize goods. Emily found their attendance to be deeply distressing and intimidating, however, to avoid the seizure she agreed to pay the fine (having to call a family member for assistance in making that payment).
On 15 September Emily attended Bradford Magistrates Court in person to request that she be provided with the details of the case. Despite my client providing her current address to the Court, another letter containing Emily’s personal details was then incorrectly posted to the real driver Miss Barker.
Having received little or no assistance from the Police or the Court, Emily took steps to identify Miss Barker via Facebook and contacted her directly. Miss Barker admitted to Emily that she was in fact the party responsible for the incident on 24 August 2020.
On 21 September 2021 the matter was heard again in Court and the case against my client was withdrawn, and the points removed from her licence. Emily was informed of this by West Yorkshire Police’s Professional Standards Department on 28 September, who confirmed that the data breach was a result of the original officer’s mistake.
Emily was left feeling very shaken by these events, to such an extent that she no longer felt comfortable at home out of concern of more unexpected bailiff visits and suffered sleeplessness. She instructed me to pursue a claim for damages on her behalf and I am pleased to confirm that not only did I secure full reimbursement of the fine from West Yorkshire Police, but in addition got them to pay compensatory damages in the sum of £4,500 for the distress and inconvenience caused to Emily.
However, the bottom line is that this is a mistake which should never have been allowed to happen in the first place; a casual error, unchecked, leading to significant disruption to a person’s life. In today’s ‘data rich’ age more care than ever must be taken by the Police in the processing of that data, or else our data fingerprints could become connected with another person’s financial or criminal misconduct.
Given the indissoluble links of geography, culture and economics between the UK and mainland Europe, it was inevitable that many of the changes ‘Brexit’ brought about, would be changes in name only. One example of this is the system of extradition between EU Member States, known as the European Arrest Warrant (EAW) – which provided for the swift and smooth transfer of ‘wanted’ individuals between legal jurisdictions. In the days before the EAW, the process of extraditing Rachid Ramda, wanted for the 1995 Paris metro bombing, from the UK to France took 10 years; by way of contrast, under a European Arrest Warrant in 2005 it took a mere 56 days for Hussain Osman, wanted for the 21/7 London tube bombings, to be brought back to the UK from Italy.
Although the UK withdrew from the EAW system on 31 December 2020, the same mechanism for streamlined extradition was effectively continued, albeit ‘re-branded’ as part of the terms of the Trade and Co-operation Agreement (TCA) between the UK and the EU, from 1 January 2021.
The arrangements under the TCA continue to be governed by the same UK legislation which applied to the old European Arrest Warrant (the Extradition Act 2003) and continue to be administered in England and Wales by the National Crime Agency, which validates international warrants and alerts local Police Forces. The new UK/EU “surrender arrangements” provided by the TCA mirror the EAW system in important ways-
• An arrest warrant can be issued for any offence which carries a potential custodial sentence of at least 12 months, or where a custodial sentence has already been made against the individual of at least 4 months; • The issue of the warrant is subject to the principle of “dual criminality” i.e the type of activity must be recognized as a criminal offence in both countries; • After arrest, the individual will have an initial Court hearing, at which they are given the opportunity to ‘consent’ to be surrendered abroad, and if they do not consent, a more in-depth Extradition hearing at a later date to make a final decision (though all taking place within a tight timeframe).
One important difference that should be noted, however, is that the TCA allows a ‘Nationality Bar’ to be imposed i.e for a given country to refuse to extradite their own nationals. Several major EU countries, including France and Germany, have invoked this clause – although the UK has not.
Fast track extradition between neighbouring democracies is unquestionably a useful tool in law enforcement and the proper functioning of civil society – but as ever, any legal power must be exercised with proper due care and attention, otherwise significant wrongs can occur, as the case of my client Stefan Albescu demonstrates, almost extradited as a result of ‘mistaken identity’.
My client Mr Albescu is a Romanian National who came to the UK in 2015 and who at the time of the material events in 2019 was living in the East Midlands with his wife and children. He was a man of good character who had never before been arrested.
Unfortunately, in the early hours of Sunday 21 July 2019 Mr Albescu was arrested at his home address on suspicion of drink driving. He was taken to his local Police Station.
At 11.12am the following morning Mr Albescu was charged with driving offences and granted unconditional bail to attend Court at a later date.
However, at 11.15am Mr Albescu was then further arrested on the basis of a European Arrest Warrant (EAW) which had been issued by Hungary on 13 October 2016 and certified by the National Crime Agency on 28 June 2017. This was in respect of a conviction warrant issued on 5 September 2016 in relation to an allegation of “fraudulently obtaining a passport”.
The EAW was issued against a man named Stefan Alexandru Albescu, whose date of birth was 30 March 1971.
My client Stefan (not Alexandru) Albescu had a date of birth of 31 March 1976.
The warrant was not backed for bail and therefore the following morning Mr Albescu was transferred to HMP Wandsworth in a state of distress, not only because he knew himself not to be the person named in the EAW, but also because he was claustrophobic and was experiencing considerable alarm at the thought of being confined in the prison transport van.
Mr Albescu was then taken before Westminster Magistrates Court for an initial Court hearing, where he did not consent to extradition and asserted that this was a case of mistaken identity. Bail was refused and his detention continued until 26 July 2019 when the Judge finally agreed that my client was not the person named on the EAW and he was thus released from custody that afternoon, having been detained in prison for over 5 days.
My client’s detention at HMP Wandsworth was particularly distressing given that he was a man of good character, who had never before seen the inside of a Police Custody Suite, let alone a high security prison, where he was being detained at the threat of deportation to a foreign country and separation from his wife and children; all of the time knowing himself not to be the person who was really wanted (and adding insult to injury, he had mistakenly been told following his arrest that the individual was wanted for an offence of murder, significantly increasing the stress of this already nightmarish and Kafkaesque situation)
The effect which these events had had upon Mr Albescu is amply summed up in an entry in his GP records 3 days after his release which describes his condition as follows:-
“Shock, PTSD, put in prison for 5 days as they thought he was another Hungarian man wanted for murder, but different name and DOB. Very shocked when released. Plan: advised to see counselling, insight details given. Zopiclone 7.5mg tablets…one tablet a night when needed to aid sleeping.”
Mr Albescu later described to me how he had suffered disturbed sleep for weeks, including nightmares about being locked in a cell with no one coming to let him out, and the cell getting smaller and smaller so that he thought he was suffocating. He woke up terrified on several occasions even when he was back in the safety of his own home.
I was able to get Nottinghamshire Police to accept liability without the need for Court proceedings, and after rejecting the initial Police offer of settlement in the sum of £5,300 damages I was ultimately able to secure a substantial settlement of £22,500 for Mr Albescu in proper recognition of the duration of his detention and the mental trauma which it had caused to him.
Please contact me for expert advice and representation if you have suffered a wrongful arrest under either the old European Arrest Warrant system or the new Surrender Arrangements provided for by the Trade & Co-operation Agreement.
The failings of Greater Manchester Police have been the subject of numerous news reports in recent times, following on from the Force being placed into “special measures” in December 2020. A Police Effectiveness, Efficiency and Legitimacy (PEEL) report from Her Majesty’s Inspectorate of Constabulary published last month, highlighted continuing areas of concern.
This week in my blog I will illustrate what sub-standard performance can mean on the ‘front line’ of day-to-day policing in the Greater Manchester area, for an innocent man and his family.
In the early hours of Saturday, one day in November 2017, my client David was at his home address in Wigan. He was asleep on his sofa after a night out at a family celebration. His wife, Emma , was still out and their teenage daughter Lucy was in bed upstairs.
Unbeknown to David, Lucy had mistakenly called 999 on her mobile phone just before midnight and quickly cancelled it. There were then two further accidental calls from her phone at 1:26am and 1:33am (“butt dials”). When the emergency call centre called the number back, Lucy answered. When asked if she had called the police she replied no, and apologised. When asked for her address she hung up. The mobile phone was registered to her mother, Emma, at the family’s home address.
In response to that abandoned 999 call, GMP officers attended at the family home at around 4:20am. Initially, there were just two officers, PC Matthews and PC Brandon. PC Matthews was clearly the older and more experienced of the two officers and took the lead in what happened thereafter.
David did not hear the officer knock on the door but was woken as the officers walked into the living room where he had been sleeping on the sofa. He was surprised to hear about the 999 call and politely answered all of the officers’ questions, explaining that Emma was still out with family/friends. He confirmed that there had not been any ‘domestic’ between him and his wife.
David explained that his daughter was upstairs and went to her bedroom to see if she would speak with the officers. Lucy explained to David that ‘999’ was dialled by accident and he relayed that to the officers.
He then showed the officers upstairs so that PC Matthews could speak directly with Lucy, whilst David provided further details to PC Brandon in the living room. Lucy asserted to PC Matthews that the 999 call was a mistake.
During these interactions, David was very co-operative and allowed the two officers free-rein to explore the house. The officers searched the ground floor living room, dining area, kitchen and even under-stairs cupboard. PC Matthews also searched the upstairs floors (the bathroom and all of the bedrooms).
PC Matthews then saw Emma’s mobile phone (switched off) on the hallway table and David confirmed that it was his wife’s, explaining that she must have not taken it out with her.
“I smell porkies”
At that point PC Matthews asserted, “I smell porkies”, insinuating that David was lying. David took offence at that and clearly asked the officers to leave his home.
The officers refused to leave, at which point David raised his voice and tried to guide the officers from the living room to the front door. He repeatedly asked the officers to leave his house, yet they refused to do so.
It would appear that PC Matthews was assuming that the phone used to make the ‘dropped’ 999 call was Emma’s phone in the hallway – as opposed to Lucy’s phone registered in her mother’s name – and from that had leapt to the wild surmise that something sinister had befallen Emma – despite there being absolutely no evidence of this (and, indeed, significant evidence to the contrary was about to appear).
At this point the officers had already spoken to the couple’s daughter and searched the house from top to bottom. There was no evidence of any crime and the officers should have simply obeyed David’s instruction to leave – by point-blank refusing to do so, they thereby rendered themselves as trespassers, having no power to remain on the premises in these circumstances once the householder’s consent to their presence was withdrawn.
As David moved towards PC Matthews to guide him back towards the front door, PC Matthews shoved David violently in the chest with both hands, pushing him backwards.
PC Matthews then moved into the hallway briefly, before pushing past David to return into the living room and through into the dining area again, apparently searching the area for a second time to see if Emma was there, which she clearly was not. It was around this time that Lucy, having heard the disturbance, came into the living room.
As David approached PC Matthews, repeating his instructions for the officer to leave, PC Brandon suddenly and without warning grabbed hold of David from behind, putting his arm around David’s neck in a ‘choke hold’.
David struggled to free himself from the choke hold, and he and PC Brandon fell onto the sofa, where a struggle ensued.
At that moment, Emma entered the living room with her brother, having just returned home, shocked and stunned to witness a Police officer wrestling with her husband on the couch.
It was now manifestly clear that no harm had befallen Emma, but PC Matthews and PC Brandon continued their assault upon David.
PC Matthews sprayed David in the face with CS Spray. As well as debilitating David, the spray affected everyone else in the room, including Emma and Lucy. Emma’s brother pulled David up from the sofa.
David then went upstairs and the police officers stepped outside the house with Emma and Lucy. PC Matthews then stepped back into the hallway and walked to the bottom of the stairs.
David came back down the stairs, in distress and pain from the CS spray, again instructing PC Matthews to leave and attempting to close the front door. PC Matthews stood in the doorway, preventing David from closing it and forcing the door against David.
PC Brandon then discharged CS Spray into David’s face for a second time.
Multiple Police units now pulled up outside the house, blue lights flashing.
PC Brandon and a female officer now restrained Emma, who was protesting at the officer’s treatment of her husband and moved her away from the front door. PC Brandon then handcuffed Emma to the rear and detained her on the driveway while the other officers approached David. Let us not forget that this whole incident had ‘kicked off’ because the Police were allegedly concerned as to Emma’s safety – but she was entirely unharmed until the Police subjected her to gas spray, manhandling and handcuffing.
One of the newly arrived officers, PS Brown, then entered the house and took hold of David. PS Brown punched David several times to the face. David struggled in an attempt to defend himself and get away from PS Brown and the other officers. PC Matthews had also grabbed hold of David and both officers dragged him out of the house.
Outside the house and whilst David was restrained by PS Brown and PC Matthews, PC Edwards approached David and Tasered him from close range – making contact with his torso. The Taser incapacitated David causing him to fall to the ground, whereupon he was handcuffed by PC Matthews and taken to a waiting police vehicle. The Police had brutally deployed the full extent of their weaponry upon an innocent man.
Once David was inside the police van, at around 4:50am, PC Matthews arrested him for “assaulting police officers in the execution of their duties”.
David arrived at Wigan custody suite at around 5:15am and his detention was authorised at 5:27am.
Following an interview under caution, in which he asserted his innocence, David was released, after almost 12 hours in Police custody. His shirt and trousers were returned to him but they were ripped and smelled of CS gas so he threw them away. At the time of release he enquired as to how he could make a complaint against the officers involved in the incident.
David was subsequently sent a postal requisition in January 2018 in regard to three offences of assaulting a constable contrary to s.89(1) of the Police Act 1996, based on allegations that he assaulted PC Matthews, PC Brandon and PS Brown. All of the charges against him were dismissed following a trial at the Greater Manchester Magistrates’ Court in October 2018, but he nevertheless had the stress of those charges hanging over his head for almost a whole year.
As a result of the force used against him by the Police, David was left with pain and discomfort from the gas spray and taser, as well as bruises and scratches to his face, and a cut inside his mouth that required hospital treatment.
David subsequently brought a complaint against GMP, but sadly the Professional Standards Branch failed to take this opportunity to apologise and to rectify the failings of PC Matthews and his colleagues – instead endorsing the officers’ actions and rejecting the complaint as “not upheld” on all counts.
Such is the typical reactionary response of most Police Forces in these scenarios, thereby wasting significant opportunities to improve professional standards – of which GMP of all Forces would appear to be sorely in need at the current time.
What a self-inflicted waste of Police time and resources this incident was – although over and above ‘mere’ incompetence and aggression, we also have the more sinister spectre of the efforts made by the Police to criminalise David for this encounter – despite the fact that he was an innocent man in his own home, trying to get two trespassers to leave, who both assaulted him without warning, including a violent ‘choke hold’ manoeuvre. Multiple officers involved in the event gave sworn statements depicting David as the aggressor. Such falsehoods could have resulted in David being convicted and facing a jail sentence and might have blighted his future career prospects. It is awful and reprehensible conduct on the part of the Police, although in my experience sadly an all too common an outcome of such encounters.
Ultimately, justice was secured, firstly as a result of David’s courage and determination in proving his innocence at the Magistrates Court, and secondly through my expert legal assistance in the Civil Court proceedings which followed, forcing GMP to settle David’s damages claim for a significant five-figure sum.
In light of incidents like this, however, GMP have clearly got a long way to go to improve their Policing to adequate levels – or, indeed, to demonstrate any real intent to reform the errors of judgement and institutional malice which allow misbehaving officers to go unpunished, and put innocent people at risk of being ‘framed’ for offences they did not commit.
Many people were shocked last week to read of the case of “Child Q” a 15 year old girl strip-searched in her school by the Metropolitan Police because she was wrongly believed to be in possession of cannabis. The Met have issued an apology for this “highly regrettable” incident; sadly, this has once again not arisen because of internal accountability, but because a spotlight has been shone upon the MPS from outside – in this case, a report by the City of London & Hackney Safeguarding Children Partnership – and the ensuing media storm. Indeed, by reference to a very similar case which I have recently concluded, I can confirm that this incident is not a ‘one off’ and nor do the Met typically show any regret for this sort of abuse of power over a minor – until it is forced out of them.
Metropolitan Police Apology After Strip-Search of Child
On the afternoon of 16 November 2019, my client Tom travelled to London Bridge underground station so as to meet up with his girlfriend. He travelled there with a male friend. Upon arrival, Tom and his friend split up so as to locate Tom’s girlfriend in the busy station concourse.
At the time, Tom was 17 years old.
Whilst he was walking through the station, Tom was stopped by PC Carter of the Metropolitan Police, who asked him what he was doing. Tom explained that he was meeting his girlfriend. PC Carter was joined by two other Officers. The officers were present in the station as part of a joint operation with British Transport Police, and an officer with a Police dog trained to detect drugs was also in the vicinity.
Tom asked if he was being detained. PC Carter replied, “You’re not detained yet, but if you are obviously keen to leave, it’s arousing my suspicion and I might detain you.”
Tom asked why the Officer would detain him. A second unknown Officer then said “Now you are going to be detained.” PC Carter then said, “You are detained under section 23 of the Misuse of Drugs Act. This is a passive drugs dog. It’s indicated that you may have drugs or that you have been in close proximity of drugs. So if you come over here with me.” (Subsequent evidence showed both that PC Carter had decided to stop/ question Tom prior to any indication from the drugs dog, and also that the drugs dog’s attention was primarily focused on another nearby individual, unknown to Tom, who was found to be in possession of illegal drugs).
PC Carter then grabbed Tom’s arm with one hand and Tom’s wrist with the other. Tom remonstrated and said, “You don’t need to hold my arm. I will comply; you don‘t need to hold my arm. I have a bad arm, I’ve hurt it.” (He was suffering with muscular soreness in both arms from extensive physical training).
The conversation between Tom and PC Carter (captured on the Officer’s Body Worn Video) continued as follows:
PC Carter – “We’re not holding it tightly, we don’t have to put you in cuffs, but we might do.”
Tom – “For what?”
PC Carter – “All I’m asking you to do is to walk over to the wall with me.”
PC Carter then sought to handcuff Tom to the rear.
The conversation then continued as follows:
Tom – “I’m going over, you don’t need to do that. Why are you putting me in cuffs?”
PC Carter – “Coz you are being reluctant and evasive.”
The handcuffs were applied very tightly and Tom complained:
Tom – “I’m saying that I’m going to meet my girlfriend…… You don’t need to do it that tight.”
PC Carter – “You are not going to dictate what we can and can’t do.”
Tom – “You don’t need to do it that tight.”
PC Carter – “I can get my finger in there still mate. Let’s go over here to the wall by the tube map.”
Tom – “For what reason?”
Tom was then taken to a nearby wall.
PC Carter informed Tom that he had seen him come around the corner and stop in his tracks and that had aroused the Officer’s suspicions and that the passive drugs dog had then indicated that Tom might have drugs on him.
PC Carter then carried out a ‘pat down’ search of Tom, both front and rear, during which he touched Tom’s penis several times. PC Carter asked if Tom had any ID on him. Tom said his wallet was in his right pocket. A female Officer then removed Tom’s wallet, and Tom gave his full name, date of birth and confirmed that his Oyster card was in his wallet.
Tom’s friend then called his phone. Tom asked the Officers to take the call and explain that he had been detained and handcuffed, but they refused to do so.
Tom complained that the handcuffs were cutting off the blood circulation to his hands and he could no longer feel his fingers. PC Carter dismissed this complaint.
Tom’s friend then approached; Tom asked his friend to confirm that he had indeed attended the station so as to meet his girlfriend, which his friend did.
Tom was confused and shocked by what was happening to him, and understandably embarrassed as members of the public were staring at him.
PC Carter advised Tom that he was not satisfied and that Tom would now be taken for a further search.
PC Carter and four other Officers then escorted Tom out of the station. Tom again complained that his hands were going numb.
Tom was taken to a toilet in the nearby British Transport Police Station by three male Officers, including PC Carter. At this time, PC Carter finally removed the handcuffs from Tom.
The most distressing part of the encounter now occurred: Tom was told to remove his upper clothing items one by one. He was then allowed to put his t-shirt back on and told to remove his lower clothing items again, one by one. Having done so, he was told to lift his penis up and then his testicles. He was then told to spread his legs and bend forwards. This type of ‘strip search’ is what is known in Police jargon as a MTIP (More Thorough Stop and Search, Intimate Parts Exposed).
Tom felt extremely embarrassed, humiliated and degraded. He was conscious that PC Carter was wearing a plastic glove. Tom was immediately anxious as to the extent of PC Carter’s search and said “You’re not putting your finger up my bum”. Fortunately, it did not go that far.
Tom was then allowed to re-dress and was released from the Police Station shortly afterwards. The search was, of course, entirely negative.
Multiple Breaches of Codes A and C of PACE
Tom’s mother was understandably outraged with what had happened to her son, and subsequently filed a complaint about the events. By report dated 25 September 2020, the Met PSD (Professional Standards Department) found that:
PC Carter failed to comply with Code A, specifically that he had failed to identify himself or provide details of his station or unit or inform Tom that he was entitled to a copy of the search record at the conclusion of the search.
In breach of Code C, PC Carter carried out a strip search of Tom without an appropriate adult being present (an essential prerequisite given that Tom was only 17 years old).
In further breach of Code C, PC Carter carried out a strip search of the Claimant in the presence of two other Officers (no more than two people should be present).
Likewise in breach of Code C, PC Carter failed to secure authority from a Senior Officer (minimum rank of Sergeant) to carry out the strip search.
Finally, PC Carter failed to record any justification for the search in an Evidence/Action Book or in his personal issue pocket book.
Notwithstanding all of the identified breaches, the tone of the Complaint report was typically unapologetic, and if anything unsympathetic and hostile towards Tom – excusing the breaches as, in effect, momentary lapses, “accidental oversights” or understandable mistakes on the part of PC Carter. The author of the report was at pains to repeatedly praise PC Carter as “an experienced officer with sound knowledge and capable Policing skills” and at the same time blame Tom – a child lest we forget – for distracting this ‘highly experienced’ officer and making him forget to comply with the law – “My investigation suggests that Tom is partially responsible for the outcome” suggesting without foundation that Tom was unduly “hostile” and dishonest in his dealings with the officer!
The conclusion of the report, therefore, was that despite the investigating officer’s (reluctant) upholding of multiple grounds of complaint, PC Carter was to receive only the minor censure of being advised he had some areas of ‘practice requiring improvement’ to focus on; a mere slap on the wrist indeed.
The tone of the report was really this – Look, you’ve got us on a few technicalities, we’re insensitive to your complaints, we’re not really sorry and we’ll excuse the officer and blame the child wherever possible. It is this type of attitude that stands in the way of real change to problematic aspects of Policing culture: did PC Carter, this experienced officer, somehow make multiple mistakes that day because of misunderstandings/ moments of forgetfulness – or rather did those breaches occur because the Officer’s experience had taught him that corners can be cut, and the requirements of the law as to reasonable grounds for a stop search, reasonable use of force in effecting the search, and compliance with the Codes of Practice can be disregarded or only partially obeyed precisely because his Force will protect him from complaints and either dismiss accusations of unlawful conduct on his behalf, or minimise/ excuse them whilst belittling the complainer?
In any event, I was instructed to pursue matters further by Tom and his mother, who were determined not to let matters rest with such an unsatisfactory complaint outcome.
In response to the letter of claim, the Met failed to admit liability, although at the same time putting forwards a derisory offer of settlement in the sum of £600.
On my advice, Tom rejected that offer and Court proceedings were issued, with the Met soon afterwards making a significantly increased offer of £5,000 (whilst still contesting liability).
Last month, I am pleased to confirm, settlement was agreed in the sum of £10,000 damages for Tom, plus legal costs, and, very significantly given the MPS’s frankly hostile and unconciliatory complaint investigation – a promise of a full apology to acknowledge the unlawfulness of PC Carter’s conduct towards Tom, and the impact it had upon him, to be provided by an officer of at least the rank of Chief Inspector.
Cases such as that of Tom and Child Q leave us not with the scent of cannabis in our nostrils, but a bad taste in our mouths – for all too often the public are forced to swallow the fact that the Police care far too little about Police breaches of the law – even when the law in question has been enshrined to safeguard the rights of children.
All names have been changed in this blog to preserve my client’s anonymity.