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Police Search Warrant – Unlawful Entry Part 3

So far, I have explored circumstances where the Police have obtained a Search Warrant following application to a Magistrate and the Police have then either attended the wrong house (Part 1) or alternatively, have raided the right house but on the basis of faulty intelligence (Part 2).

What about situations where the Police have obtained a Warrant on the basis of up-to-date  and accurate intelligence and then raided the address identified in the Warrant but where they have then failed to execute  the Warrant correctly (and in accordance with Section 16 of PACE)?

Section 16 of PACE states as follows;

(1)    Execution of warrants.

A warrant to enter and search premises may be executed by any constable.

(3)    Entry and search under a warrant must be within three months from the date of its issue.

(3a) If the warrant is an all premises warrant, no premises which are not specified in it may be entered or searched unless a police officer of at least the rank of inspector has in writing authorised them to be entered.

(3b)No premises may be entered or searched for the second or any subsequent time under a warrant which authorises multiple entries unless a police officer of at least the rank of inspector has in writing authorised that entry to those premises

(4)    Entry and search under a warrant must be at a reasonable hour unless it appears to the constable executing it that the purpose of a search may be frustrated on an entry at a reasonable hour.

(5)   Where the occupier of premises which are to be entered and searched is present at the time when a constable seeks to execute a warrant to enter and search them, the constable—

(a)shall identify himself to the occupier and, if not in uniform, shall produce to him documentary evidence that he is a constable;

(b)shall produce the warrant to him; and

(c)shall supply him with a copy of it.

(6)   Where—

(a)the occupier of such premises is not present at the time when a constable seeks to execute such a warrant; but

(b)some other person who appears to the constable to be in charge of the premises is present,

subsection (5) above shall have effect as if any reference to the occupier were a reference to that other person.

(7)   If there is no person who appears to the constable to be in charge of the premises, he shall leave a copy of the warrant in a prominent place on the premises.

(8)   A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued.

Where the Police have executed a warrant, it is therefore necessary to check very carefully whether there has been compliance with the criteria.  In R v CC of Lancashire ex P Parker  the Court of Appeal decided  that the wording of S15(1) was such, that any non-compliance  would render the whole search unlawful.

In 2007, I successfully concluded a claim on behalf of my client David Khan against West Yorkshire Police.  I helped establish that he had been the victim of an unlawful arrest and assault by police officers employed by the force and he recovered £15,000 in compensation as well as a full apology.

Several years earlier, David contacted me again. In the early hours of the morning on 6 January 2012, David had been at home preparing  to shower whilst his two children were asleep in bed.  As he closed the bedroom curtains, he saw a bright light from outside shining directly into his bedroom.

David peeped through the curtains and saw what he thought were police officers armed with machine guns approaching the side of his home which is situated in a cul-de-sac.

He started to feel anxious and worried that he was about to be subjected to another wrongful arrest and assault.  He therefore went out onto the hallway and stood at the top of the stairs. From outside David heard a voice shout words to the effect of “Resident of number 24, come outside”.  David  made his way downstairs, unlocked and opened the door.  He could see a number of police officers pointing guns at him but did  not know why they were there.

Given that the police were armed, David did not want there to be any suggestion that he was in possession of a weapon and therefore placed his mobile phone on the floor and then stepped outside and stood in the front yard with his arms held up above his head.

Once outside, David also realised that a police helicopter was above the house.

David could see that there were two armoured police vehicles parked in front of the gates to his driveway and that the road was blockaded in both directions. He could also see that there was an armed officer leaning on the wooden fence of the adjacent premises. There was a third officer stood by the pillar to the gates who was also pointing a firearm towards him.

David was asked if he was ‘Richard Kimble’.  In response David said that he was not and that his name was David Khan and gave his date of birth.

Richard Kimble was his ex partner’s brother.  Richard had never lived at the premises and to the best of David’s knowledge had never used the address for any reason.

The officer asked David who had been looking out of the bedroom window.  David told the officer that it had been himself. The officer repeated his question and he repeated his reply.

The officer  then asked him if there was a child in the house and it then occurred to David  that he was referring to his younger son who was upstairs and who had obviously been awoken by the commotion.  As a result David told the officer that it was his son who was at the bedroom window.

The officer told David  to shout up to his son and tell him to come downstairs.  David did as he was asked and his son made his way downstairs and outside.

David then told the officer that his daughter was also upstairs in bed and he was told to go into the house slowly and call her downstairs.

During this discussion with the officer David noticed that the officer had a photograph of  Richard Kimble and that he appeared to realise David was not the person he was looking for.

David returned  into the house and went upstairs to his daughter’s bedroom. Fortunately, at that time she was asleep and had not witnessed events outside. He woke his daughter.  She was understandably dazed and disorientated and did not realise what was going on.  He told her that the police were outside wanting to speak to him and that they were armed with guns.

David’s daughter  became instantly upset and started to cry. She thought that David would be beaten up by police again as during the incident which led to David’s previous civil claim against the same police force.  David told her that everything would be alright but that she needed to come downstairs with him.  He took his daughter downstairs and both went outside and joined his son.

David was then searched by an armed police officer at the rear of one of the police vehicles  that was parked near his driveway and was then told to make his way towards a police vehicle parked a few metres away and to take his son and daughter with him.

The situation was extremely frightening and embarrassing.  Neighbours who had  become aware of the presence of the police had come outside to see what was going on.  It seemed as though the whole street was outside.

David and his two children sat inside the police van, still in shock and in the dark as to why the police were even at the premises.

There was no police officer in the vehicle with David and the children and the door was kept slightly open. David felt shock, apprehension and concern for his children’s welfare whilst his daughter sat on his lap, crying. They were kept in the van for about 30 minutes.

During this time, firearms officers performed a preliminary search of the house to ensure no one else was in the house and that it was safe for other officers to conduct a full search.

Eventually, the van door opened, David and the children were told they could go back inside if they wished.

By this time, the armoured police vehicles had left the scene, as had most of the police officers.

As they went back into the house, the only police officers remaining were two CID officers in plain clothes.

The officers told David that they would be carrying out a search of the premises.  They explained that they would be starting the search in the children’s bedroom so that the children could go back to bed once the search was finished.

One of the two police officers remained with David and the children in the lounge while the other carried out a search upstairs.

As and when the officer had finished searching the children’s bedrooms, the children were allowed back upstairs and went back to bed. The search lasted for about an hour. At this point, the officer said to David “This is a copy of the search warrant”.

Prior to the officer saying this there had been no mention that the police officers were in possession of a search warrant. Further, no copy of the warrant was shown to David prior to this moment.

The officer produced a document and requested that David sign it to confirm that nothing had been seized by the police.  David signed this document and a copy of the search warrant was then given to him.

The police officers then left the premises.

It transpired that two serious armed robberies had been committed at 02:21 hrs and 04.39 hrs on 4 January 2012.  In each case a gun was used and discharged.  Enquiries showed that the robber had used a particular motor car. At or about 5pm on 5 January 2012 a police officer identified Richard Kimble as a man shown on CCTV getting into that same motor car on 3 January 2012.

Officers applied for and secured  an ‘out of hours’ search warrant to search Mr Kimble’s last known address, namely David’s home address for firearms/ammunition.  This had been falsely given to the police by Richard as his home address when he was stopped in October 2011 and without David’s knowledge or permission.

David was at first concerned that the police raid was some form of ‘pay back’ because he had previously brought a successful civil claim against the force but in truth, the police decision to obtain and execute an armed search warrant was entirely legitimate.

So

  • Police were at the right address as detailed in the warrant.
  • Police intelligence clearly linked the offence to the house (even though David and his children were entirely innocent).

BUT, on close inspection, the police had failed to comply with the terms of Section 16; on David’s account, the officers had entered his home address without producing any search warrant to them and without supplying a copy rendering their entry unlawful since contrary to Section 16(5) of PACE.

It was on this discreet point that West Yorkshire Police subsequently admitted liability and my clients went on to recover substantial compensation for trespass, false imprisonment and assault.

As Parts 1, 2 and 3 show, it is imperative that for the police to establish a lawful entry/search of premises, they must

  • Get the right house.
  • Ensure the intelligence upon which they secured the warrant is up to date and as reasonably accurate as can be, and
  • Comply with the provisions of Section 16 of PACE.

“An Englishman’s Home is his Castle ?”

Reflecting on this case, I am very happy that I was able to secure compensation for David and his family after this highly distressing incident – but also I am conscious that some might think the award of compensation was only due to a ‘technicality’ i.e the family’s entitlement to damages did not arise in this case because of wrongdoing on the part of the West Yorkshire Police but purely because the officers involved failed to give David the search warrant at the start of the process, rather than the end. Had they given it to him at the beginning, the search would have been entirely lawful and no right to compensation would have arisen for David or his children.

Nevertheless, I think it is quite correct that David brought this claim, and it is absolutely right to hold the Police to account to the strictest ‘letter of the law’ when they are claiming entitlement to enter and search a private home, going through all of a family’s personal possessions and  in the process – effectively – holding the family (including children) captives and shattering the sense of peace and security that we are all surely entitled to feel in our homes – particularly children.

I wrote in my last blog on this subject about the importance of the Human Rights Act, enshrining the right to Privacy and Family Life, but of course the concept that a person’s home is their private space and is not to be infringed lightly by the forces of the State is far older than the Human Rights Act or the European Convention on Human Rights – it is one of the fundamental tenets of ‘British Liberty’  long upheld by the Common Law of England & Wales before the HRA was even dreamt of, and summed up by the famous expression “An Englishman’s home is his castle.” That is why it is quite correct that the modern law governing search warrants, as set out in PACE, sets strict guidelines with which the Police must comply before any entry into a private home can be deemed legal. To allow the Police to ‘get away’ with these strict guidelines, such as in this case a failure to produce the warrant for the person whose home was being ‘invaded’ by them, would be to remove an important safeguard  upon the power of Police officers as agents of the State, upsetting the balance between the rights of individuals and the power of government. We must not allow our fundamental liberties to be chipped away in this manner, and if the Police wish to exercise an extraordinary right – to come armed into your family home, and turn it upside down (often both emotionally and physically !), go through your private belongings – well then, they must be held to an extraordinarily high standard of behaviour, including the fair transparency required by the production of the warrant to the homeowner as an absolute condition before a legal search can go ahead.

As a former Prime Minister of this country, William Pitt the Elder, said in 1760 –

“The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail, its roof may shake, the wind may blow through it. The rain may enter. The storms may enter. But the King of the England may not enter. All his forces dare not cross the threshold of the ruined tenement.”

Long may the law continue to uphold these admirable sentiments, in their modern context, and I am sure Mr Pitt would be the first to cheer the safeguards and protections to all of our ‘cottages and castles’ built into the Police and Criminal Evidence Act.

(All names in this blog have been changed apart from the name of an Eighteenth Century Prime Minster)

 

Police search warrant, unlawful entry- Part 2

I previously blogged about situations where on the back of intelligence the Police execute a Search Warrant following application to a Magistrates’ Court.

In the last blog I referred to a case where the Police raided the wrong house, but what about situations where they attend the right house but the house is now lived in by a family wholly unconnected with the object of the search?

After months and months of saving up, my clients Anthony  and his partner Jane were able to purchase a 3 bedroom house in Liverpool.  The house was in something of a state and over a 3 month period, they paid for renovations before finally moving in in December 2015 with their 2 children.

Unbeknown to them on the 15 January 2016 a Search Warrant was issued by a  District Judge at Liverpool Magistrates’ Court upon Police application, permitting the entry and search of the said premises for cash, betting slips and mobile phones.

On the morning of the 28 January 2016,  Officers of Merseyside Police set out to execute the Search Warrant.

On this occasion, both Anthony and Jane were in bed at the premises asleep.  Their 2 children then aged 7 years old and 18 months were also asleep in adjoining bedrooms.

At approximately 06.59 hours 6 uniformed Police Officers attended.

Entry was gained to the rear garden by force to prevent any escape from the rear.  Entry to the house was then sought via the front door which was found to be locked.

In the circumstances, a ‘Method of Entry Team’ forced the door open with an Enforcer (basically a battering ram),  called “Breach” and officers then entered the property which they found to be in darkness.

Anthony and Jane were awoken  by the noise and got out of bed.

Such was the unexpected nature of the incident, Anthony and Jane initially believed that they were the target of dangerous criminal offenders.

Following entry, the officers proceeded upstairs and entered into Anthony and Jane’s bedroom where they were both  “secured”.  An officer asked “Where’s Bill Sykes?”   The officers then ordered that Anthony and Jane to dress and proceed downstairs.

Simultaneously, an officer entered the bedroom of their 7 year old son waking him and causing immediate and immense distress to the boy and another Police Officer entered the bedroom of his 18 month old brother, before removing him from his cot, resulting in an outburst of hysteria from the infant.

The whole family were understandably very upset and distressed.

Anthony and Jane proceeded downstairs as directed.  They were given a copy of the Warrant and realised that the officers were searching for the previous occupant of the premises.  Anthony and Jane explained that they had purchased the property from the main suspect’s mother in August 2015 and that they had moved in in December 2015.  Jane then produced documentation to confirm both her own identity and that of Anthony and their ownership of the premises.  After 20 minutes or so, it was apparent that the officers accepted Anthony and Jane’s account.

Despite Anthony and Jane providing the said evidence, the Warrant only being issued for specific evidentiary items and the officers realising  that Anthony and Jane  were the current owners of the premises and therefore  not who they were looking for, Anthony and Jane continued to be detained during which time  they were asked questions regarding their source of income, the nature of their employment and the purchase price of the premises.  Furthermore, checks were carried out on the premises’ utility meters to ensure that they were operating without interference.  To add further insult, one of the officers present  remarked that Anthony and Jane should regard themselves “lucky” that the search of the premises was not accompanied by television crews, a feature of other searches which had taken place that day. In all, Anthony and Jane were detained for approximately 1 hour.

Such was the force with which entry was gained, the front door was damaged beyond repair.  Anthony and Jane were required to purchase a replacement door at a cost of £900, money for which was not readily available and had to be borrowed.  As a result, it was not until 31 March 2016 that the front door was finally replaced.  Further, forced entry caused damage to the interior plaster around the door frame.  Damage was also caused to the back gate and fencing panels.

As a result of the trauma and anxiety which had been caused by the disturbance to the premises, Jane was unable to attend for work that day.  Likewise their 7 year old son had to be kept home from school.

The whole incident took place in front of Anthony and Jane’s neighbours causing further embarrassment particularly as the family had only just moved in to the house.

Subsequently Anthony and Jane discovered that the search at the premises and other addresses that morning was the culmination of a lengthy Police investigation, spanning several months.  Despite careful planning and preparation which might be expected for such an operation (part of which was being ‘televised’), there had been a complete failure to check and confirm current occupancy of the premises.

Begrudgingly, Anthony and Jane were provided with an apology from Merseyside Police.

Due to their outrage at the treatment they had received, Anthony and Jane instituted a formal complaint and contacted myself to pursue a claim on their behalf.

Ordinarily, the victim of such a raid could allege trespass, assault and false imprisonment (as in the case of Mr and Mrs S reported here), but here, the officers had entered and searched the correct address, the address that was identified in the Search Warrant and had executed the Warrant correctly.

In the circumstances, the Police could rely on Section 6 of the Constables Protection Act 1750 and were thereby protected from a lawsuit.  In short, in the absence of any information to suggest that the Warrant was in any way defective or that it had been executed incorrectly, the Police had a complete defence to any proposed claim for trespass and associated wrongdoing notwithstanding the fact that Anthony and Jane were completely innocent.

So if an action for trespass, assault and false imprisonment was bound to fail, how could Anthony and Jane  seek redress?  Following review, I advised Anthony and Jane to bring a claim under the Human Rights Act and specifically a breach of their right to private and family life as protected by Article 8.

Breach of Article 8 of ECHR

Article 8 provides:

Right to respect for private and family life.

  1. Everyone has the right to respect of his private and family life, his home and his correspondence. 
  1. There shall be no interference by a public authority with the exercise to his right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 

Once an interference with rights to private and family life and respect for the home has been proved, the public authority must then prove that the interference was in accordance with the law, in pursuance of a legitimate aim and necessary in a democratic society.

It was clear to me that if proper enquiries had been made and the facts of those enquiries had been properly reported, the Police would have concluded that in early January 2016, there was no reasonable or probable cause  to apply for a Search Warrant.  In other words, the Police had failed to carry out basic steps  to verify the connection between the address and the offence and suspect under investigation.  The resulting Police action which caused Anthony and Jane considerable fear and alarm was wholly unreasonable and disproportionate and sufficient to constitute an interference with Anthony and Jane’s rights under Article 8.

I’m sure that it was on this basis that following investigation Merseyside Police admitted the breach and agreed to pay compensation.

Both Anthony and Jane and their 7 year old son were traumatised by the incident and I was able to arrange for them to see a Psychologist who recommended that they undergo a course of CBT.  Subsequently, I am pleased to report that  settlement terms  have just been agreed with Anthony and Jane receiving total compensation of £17,500. Their son’s case is presently ongoing.

The Importance of the Human Rights Act

This case really brings home the important part which the Human Rights Act plays in the proper functioning of a modern democratic society.  We often hear negative comments about the Human Rights Act from Conservative politicians such as David Cameron  and Michael Gove and newspaper barons such as Paul Dacre of the Daily Mail, who wish to see it repealed on the basis  that it enshrines ‘political correctness gone mad’ and gives too many rights to criminals, suspected terrorists and others (although Mr Dacre’s list of undesirables probably also includes celebrities as he was particularly concerned about the Human Rights Act reinforcing peoples’ rights to privacy against snooping journalists).

However, I am confident that the Human Rights Act in the hands of the fair, balanced and generally conservative British judiciary  is overwhelmingly a positive rather than a negative tool, and this case I have reported above shows how it was absolutely necessary to ensure that a young family received fair and just compensation for the wrong they had suffered.

Stories such as that of Anthony and Jane showing the real benefit and protections to family and private life that are provided by the Human Rights Act are little reported, and indeed are probably deliberately overlooked by the Tabloids when they are whipping up the next round of fury against the legislation and supposed ‘PC – madness’ or ‘compensation culture’.

I would urge us all to be very careful about letting the Government abolish the Human Rights Act and thereby roll back some of the most important protections we have against unjust treatment by the State, or undue interference with our private lives.

After all, where did the European Convention of Human Rights, the founding charter which is implemented in British law by the Human Rights Act come from?  It was drafted in the immediate aftermath of World War II by a leading British lawyer and Conservative MP Sir David Maxwell-Fyle, with the express intention of ensuring the civil liberties necessary to protect effective political democracy against the dangers of fascism and the totalitarianism that were deeply rooted across the continent. These civil liberties arose from the strongest traditions of British liberty in the UK, going back to the Bill of Rights, Magna Carta and all that the English Common Law had done over many centuries to extend those rights.

So the Human Rights Act and the European Convention of Human Rights, and the European Court of Human  Rights (which has nothing, by the way, to do with the European Union) far from being alien to British justice were from their inception part and parcel of it, and remain a linchpin (as this case shows) of the proper functioning  of a just and peaceable civil society.

Don’t let anyone throw your rights away!

Police search warrant, unlawful entry – Part 1

A common sight in today’s media is news and photographs of an organised early morning Police raid on a residential home or series of homes, carried out in accordance with a Magistrates’ Court Warrant.

These stories are released by the Police to proclaim their success in terms of the seizure of drugs, firearms and/or cash and the arrest of key suspects.

What is often not publicised  is where frankly the Police ‘screw up’ in terms of planning or execution of these Search Warrants. Sadly, this happens more often than one might imagine and for all sorts of reasons.

Police get the wrong house!

I have just concluded a claim on behalf of Mr and Mrs S who live at 43 Lake  Road, Liverpool L99 8BS with their 3 young children. (NB All personal details changed.)

On the morning of 2 August 2016, at approximately 06:45 – 07:00, Mr S was showering in the upstairs bathroom, prior to leaving the premises to go to work.

Mrs S was asleep in the matrimonial bedroom.

Unexpectedly, Mr S  became aware of activity outside, beginning with the noise of his dog barking and thereafter banging noises.

Upon looking outside from the bathroom window, Mr S became aware of the presence of 3 armed Police Officers, who had forcibly entered his rear garden by breaking the back gate.

Mr S called down to the Officers to ask what was going on. They looked up and one Officer pointed a gun directly at him and shouted to him ‘Where’s Cody?’ and instructed him to put his hands up. As he did so, his towel dropped. Mr S tried to reach for his towel whereupon the Officer again shouted, warning him to keep his hands up. Mr S was shocked and frightened. He replied that he did not know anyone by the name of ‘Cody’. He was ordered to go downstairs to the front door. Mrs S was roused from bed by the noise.

As Mr S got to the front door, he  was confronted by 2 Officers one of whom was pointing a gun at him. He was still only wearing only a bath towel, and was again told to keep him hands in the air.

One Officer then said “That’s not him”. It was clear to Mr S  that the Officers had attended at the wrong address.

Mr S questioned the Officers as to whether they had identified the correct address. The Officers ignored Mr S and demanded his name which he gave. Mr S  was then asked as to who else was in the premises.  Mr S advised that his wife  was upstairs.

Mr S was told to dress and to come back and to leave the front door open.

No search warrant or a copy was presented to either Mr or Mrs S.

Mr S returned to the front door and stepped outside. Mr S could see that there was an armoured Police vehicle and several marked Police cars. An Officer who was pointing a gun at Mr S told Mr S  to walk towards him slowly and to keep his hands visible. Mr S was bare footed. There were various neighbours looking on. Officers told these neighbours to get inside and stay away from windows and doors. Mr S was frightened he might be shot. He was ordered to walk to a Police armoured vehicle and to then get inside which he did.  Mr S was then asked his wife’s name.

Mrs S was then told to come outside. As she did, she saw an Officer pointing a gun at her and she was directed to put her hands in the air and walk towards the armoured vehicle and to get inside.

Both Mr and Mrs S remained under armed guard in the Police vehicle during which time they were led to believe that the premises were being searched. During this process, they were obliged to provide their personal details. Both felt that they were in effect under arrest and were not free to leave.

Following a period of approximately 20/30 minutes detention, Mr and Mrs S were advised that the Police had indeed misidentified their address and that they were able to return inside.

Notwithstanding their gross mistake, none of the Officers present offered an apology for the deeply traumatic events which had taken place. Mr S spoke to an officer about the damaged gate and was told that someone would be sent “to sort it”.

As a matter of good fortune, Mr and Mrs S young children had stayed the night with their grandparents. Thoughts ran through their heads as to what would have happened if their children had witnessed these events.

The arrival and presence of the armed Police Officers, the subsequent detention of Mr and Mrs S and the subsequent search of the premises were all witnessed by their immediate neighbours, to their great embarrassment.

Such was the upset and stress which had resulted from the Police raid, Mrs S  was unable to attend for work that day.

Later that afternoon, a Detective Sergeant visited Mrs S apologised for the mistake which had taken place and provided a bunch of flowers.

Despite the apology which was made to Mr and Mrs S no explanation was provided, nor was any reassurance given that no repeat of the incident would occur in the future.

The incident was subsequently reported in the Liverpool Echo but there was no indication in the press coverage that the Police had attended the wrong address.

The claim

Having taken instructions, I was of the view that Mr and Mrs S had viable claims for assault, false imprisonment and trespass.

Both Mr and Mrs S had been caused to apprehend the immediate infliction of unlawful physical contact (the assault). Both Mr and Mrs S had been unlawfully detained (the false imprisonment). The police officers had entered Mr and Mrs S’s property without lawful authority (the trespass).

Following investigation, Merseyside Police admitted liability for all 3 heads of claim.  It transpired that the Police had secured a Warrant for 43 Lake Road, L99 4FU.

Unfortunately, once the Warrant had been obtained, a briefing pack was prepared that by human error now had the Warrant address as 28 Lakes Road, L99 8BS and on the back of this, firearm officers were deployed to the wrong (my client’s) home address.

Both of my clients were understandably traumatised by reason of what had happened and I referred them to a Psychologist who recommended that they undergo a course of CBT.  Both clients then underwent a short course of treatment.

I then sought to negotiate settlement and following discussions, I am pleased to report that my clients received total damages from Merseyside Police of £21,000.00.

My clients were extremely distressed by the intrusion and disruption which this incident caused to their lives, particularly the embarrassment of having the event play out in full view of their neighbours.  But I think they were also conscious of how much worse it could have been were it not for the fact that Mr S was already awake, despite the early hour, and was able to interact with the officers prior to them taking their next step – which presumably (given the threat the officers obviously imagined they might face from the occupant of the house) would have been to kick the door down and burst upstairs with weapons drawn. I am sure we can all imagine the shock of being woken in our bed by armed men shouting instructions and the risk of how the wrong reaction could result in fatal consequences.  An error no matter how small, by the police which results in an armed raid on your family, is not one to be shrugged off or forgotten lightly.

 

 

How the Police Can Further Reduce Unlawful Arrests

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

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

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

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

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

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

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

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

2.1       A lawful arrest requires two elements: 

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

AND 

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

·         Both elements must be satisfied, and

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

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

 Necessity criteria 

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

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

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

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

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

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

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

(c)    To prevent the person in question: 

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

(ii)               Suffering physical injury ……

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

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

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

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

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

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

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

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

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

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

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

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

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

·      It is thought likely that the person:

Ø  May steal or destroy evidence;

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Harassed by the Police

Iain Gould solicitor
Iain Gould, solicitor

By Iain Gould, solicitor

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hello trouble, how’s you 😉

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

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

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

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

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

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

Ultimately, DS Stubbs was dismissed for gross misconduct.

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

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

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

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

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

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

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

a. Which amounts to harassment of another; and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

The Price of Justice

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

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

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

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

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

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

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

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

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

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

How to Claim False Imprisonment Against a Taxi Driver

By Iain Gould, solicitor

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Falsely Imprisoned by a Taxi Driver 

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

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

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

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

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

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

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

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

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

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

The Claim for Aggravated Damages 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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