Blog

Presumption of Innocence Restored?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But consider the following undisputable facts:-

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

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

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

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

What does it mean to assault a Police Officer in the execution of his duty? (Part 3)

In my last blog, I focused on the offence of assaulting a Police Officer in the execution of his duty pursuant to s89(1) of the Police Act 1996.

It is also an offence to resist a Police Officer in the execution of his duty (s89(2)).

To resist is not defined in the Act.  The Oxford English Dictionary defines the verb to “resist” as follows; stop or hinder the progress or course of …. strive against, oppose, refuse  to yield to ….. refuse to comply”. Reported case law suggests that resisting a Police Officer entails a positive act on the part of the person being arrested. So, whether or not the defendant has ‘resisted’ is often not controversial.

The more contentious issue is often whether the officer at the material time was acting in the execution of his duty.  Various actions may take an officer outside the course of his duty such as carrying out an unlawful arrest.

It is a well established common law principle that a person has the right to resist an unlawful arrest.

Take for example, my client Mike Black whose claim I have just settled.

Mr Black was in his front room at home when he became aware that his son was outside and being spoken to by Police Officers PC B and PC H.

Mr Black went outside to find out why the Officers  had stopped his son who had been out driving.

He saw that PC B was speaking to his son and that PC H was in the front passenger seat of a police vehicle.

PC H told Mr Black that he was writing a ticket for ‘a dodgy light bulb’.

PC B told Mr Black’s son, “Wind your fucking neck in before I arrest you on section 5”.

Mr Black, whose arms were folded, raised his left forearm, pointed at PC B and said, “Don’t talk to my son like that”.

PC B replied, “Go away, it’s nothing to do with you”.

Mr Black responded,  “It’s got everything to do with me, that’s my fucking son”.

PC B stepped towards Mr Black and in so doing stood on Mr Black’s left foot whilst simultaneously pushing him to the left shoulder.  This force was used within seconds of Mr Black appearing on the scene and in the absence of any threat or difficulty posed by Mr Black.

Mr Black twisted to his left and as he did so, PC B seized hold of his left arm and forced him over the rear of the police vehicle.

PC B pressed Mr Black’s face down on the car so that he was under the complete restraint of PC B who had twisted his left arm behind and up his back.

PC B repeatedly instructed Mr Black to stop resisting arrest despite the fact that my client was not offering any form of resistance.

PC B then advised Mr Black that he was under arrest for “section 5”. (This is a reference to S.5 of the Public Order Act 1986).

My client then realised that his wife was standing nearby asking what was happening.  PC B shouted “Tell him to calm down or I’ll pepper spray him”.

Mr Black sarcastically advised PC B to put his ‘toys’ away.

Suddenly and without warning or explanation PC B sprayed Mr Black to the face with captor spray causing him pain, discomfort, irritation and disorientation.

PC B then pushed Mr Black into the privet hedge outside the premises.

Mr Black then witnessed PC B forcefully push his wife to the chest, causing her to fall to the ground, whilst PC B continued to twist and force Mr Black’s left arm up behind his back. Suddenly there was an audible snapping noise. Mr Black realised that PC B had caused him a serious injury and believed that as a result of the said noise PC B knew this too. Mr Black told PC B that he had broken his arm.

PC B released Mr Black’s arm but continued to pin him to the ground with a knee to the back.

Other officers arrived on the scene. In order to protect his arm, Mr Black manoeuvred both arms beneath his chest.  Mr Black’s feet were seized and forced back.  A baton was used to prise his arms from beneath him.

Notwithstanding the obvious injury which had been caused to Mr Black, he was handcuffed to the rear and taken to a nearby police van.

At no point during the arrest had Mr Black kicked or attempted to strike out at PC B or at any other officer in any way.

Mr Black was taken to his local Police Station suffering much discomfort en route.

The custody record indicated the circumstances of arrest as follows;  ‘Officers have stopped a vehicle ……………  When speaking to the driver, suspect has intervened and became abusive and threatening.  He refused to leave and was arrested for s5 POA.  He then resisted arrest and kicked the arresting officer twice in the testicles’. 

In interview without a solicitor Mr Black gave a very detailed denial of the allegations against him.

Notwithstanding Mr Black’s denials, he  was subsequently charged with:

  1. Using threatening, abusive or insulting words or behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress therefore, contrary to s5 of the Public Order Act 1986;
  2. Resisting PC B in the execution of his duty.

Mr Black was released from custody 13 hours and 9 minutes after his arrest and bailed to attend Court.

Mr Black instructed Solicitors, Messrs J.C. Wroe & Co who wrote to the Crown Prosecution Service, urging that the prosecution be discontinued on the following basis –

  1. With regard to the allegation of threatening behaviour, it was extremely unlikely that an officer would be “harassed, alarmed or distressed” by a minor argument about a traffic incident. This was particularly true of PC B who was prepared to use sufficient force on Mr Black to break his arm, and who at the same time pushed Mr Black’s wife, who was at the time  in poor health, to the ground.
  2. With regard to the allegation that Mr Black resisted PC B in the execution of his duty, it was self evident that given the nature of the injury sustained by Mr Black that the officer was not acting in the execution of his duty.  In PC B’s statement, he said that “he took hold of Mr Black’s left arm, using a reasonable amount of force under Common Law to protect himself.  He then alleged that Mr Black resisted prompting the officer to say “don’t resist, just go away or you’ll get nicked”.  It would seem therefore that the officer  had accepted that at the time he took hold of Mr Black, he was not in the process of arresting him, and therefore there was no justification for the officer taking hold of Mr Black. The officer then purported to arrest Mr Black  for a Public Order Offence and subsequently broke Mr Black’s arm.

Notwithstanding this persuasive analysis of the facts, the CPS nevertheless continued the prosecution and the case proceeded to trial.  At the close of the prosecution evidence the charges against Mike Black were dismissed,  following a submission of no case to answer.

The trial notes obtained from the Magistrates’ Court record the following judgment

‘Having listened very carefully to the prosecution evidence, we do not accept that PC B, with his training, experience and physical advantage, could have felt harassment, distress or alarm by Mr Black’s behaviour given the very short period of interaction between them. We have also not heard evidence of anyone else in the immediate vicinity who would have felt harassed, alarmed or stressed at the time this led to his purported arrest.

We find that a tribunal properly directed could not convict Mr Black of a section 5 PO Offence.

By grabbing Mr Black’s arm and pushing him away within seconds of Mr Black’s appearance at the scene we find that PC B was not acting in self defence and as a result, was not acting in the execution of his duty.

We therefore find the charge of resisting or obstructing a police officer in the execution of his duty as not made out.

In conclusion, we find that there is no case to answer with respect to both charges’.

Mr Black and his wife lodged a complaint. Thames Valley Police investigated and dismissed the same. Mr Black appealed to the IPCC.  As is standard practice, the IPCC dismissed his appeal.

Mr Black approached his criminal defence solicitors. They advised that their firm did not have the expertise to act in a civil claim for damages. Subsequently, Mr and Mrs Black instructed myself, as a specialist in actions against the police.

A claim was intimated and following investigation, Thames Valley Police denied liability. Mr and Mrs Black’s only redress was to sue.  I commissioned reports from both an Orthopaedic expert and a Psychiatrist in respect of both of my clients.  Once medical evidence had been approved, I issued court proceedings.

Thames Valley Police maintained their denial by filing a robust defence.

The case proceeded towards trial (sadly a drawn out saga because of considerable delays in the court process).

A pre-trial review was set for February 2019.

Notwithstanding the strength of the claims, Thames Valley Police continued to refuse to admit liability but did begin to ‘crack’.  After protracted negotiations, Mr Black settled his claim for £30k and Mrs Black for £15k.

On case conclusion, Mrs Black kindly wrote to me as follows;

Once again thank you so much for helping us to secure such a brilliant settlement, you have done a far better job than any other solicitor would have attempted.

Until we found you we were mainly turned down by other solicitors who said we had very little chance of success.

We will never forget how supportive you and your colleagues have been and wish you every success in the future.  May you long continue to test how robust these laws are.

In this case, it was clear to me – as indeed it was clear to Mr Black’s original criminal defence solicitors (and indeed the Magistrates who tried his case) – both that Mr Black was not “resisting” PC B nor was PC B acting “in the execution of his duty”.  There were no grounds for lawful use of force by PC B upon Mr Black (nor indeed upon Mrs  Black) and  PC B was the aggressor, yet hid behind his badge of office as a Constable.

Sadly, the clarity of these facts was almost exactly matched by the unwillingness of Thames Valley Police to accept them.

As is often the case, the Police seemed determined not to ‘break ranks’ and to shield their officer despite  his evident wrongdoing.  This ‘wall of resistance’ causes many potential Claimants and their solicitors to abandon perfectly good cases.

I believe it is very important that experienced solicitors such as myself and determined clients such as Mr and Mrs Black continue to hold the police to account to ensure that officers do not abuse the special protections given to them by the law, something which is ever more important in what Mrs Black described to me as these “changing and challenging” times.

Only by actions such as this, as a necessary antidote  to the institutional bias of the police in favouring their own officers against members of the public, can the robust health of our civil law be maintained and strengthened.

What does it mean to assault a police officer in the execution of his duty (Part 2)

In my last blog, I discussed the offence of assaulting a Police Officer in the execution of his duty and highlighted how various actions may take an officer outside the execution of his duty such as carrying out a wrongful arrest.

Another action that may take an officer outside the course of his duty is if he was unlawfully on premises and therefore a trespasser.

A few years ago, I acted for Jack Harper in an action against Merseyside Police.

In the early hours of 29 January 2007, Jack Harper was at home, in his kitchen talking and drinking with a neighbour, Mark.  Neither man was drunk. Nothing was untoward.

At around 02.55h there was a knock on the front door, which opened into the kitchen.  Jack Harper opened  the door and was shocked as uniformed police officers burst through without warning, invitation or explanation and  attempted to barge past him.

Jack Harper immediately told the officers to leave and repeated that instruction on several occasions to no avail. He had no idea why the officers were there, and nor did they attempt to explain themselves.

Jack stood still and put out his arms to block the officers’ progress into the house. The officers attempted to push past him but couldn’t due to his defensive position within the narrow kitchen.

According to Mr Harper, this was the extent of the physical contact which he instigated with the officers. He did not himself push, hit or attempt to hit any officer. He was doing no more than standing his ground in response to what happened to be an unlawful ‘invasion’ of his home.

Jack Harper was by this point shouting ‘Get out of my fucking house, this is my home’. Without any attempt at explanation or reasoning the police officers forced him to the floor and handcuffed him, causing immediate pain and discomfort to both of his wrists.

At no time did any officer comply with Jack Harper’s clear instruction to leave his property.

Jack Harper was taken from his home to the local police station where he arrived at 03.14h. His detention was authorised at 03.22h. The custody record recorded that he had been arrested for assault upon a constable in the execution of his duty. Specifically that:

“Report of Domestic.  On arrival IP states male had been causing problems banging on door.  Male now believed at being at neighbouring address.  When OIC attends address to speak to male door is opened up and DP immediately violent towards office striking and pushing.  Arrested”.

At 14.30h Jack Harper was interviewed.  In interview, Jack Harper gave a full account and indicated that no officer had at any time told him why they had attended his home. He confirmed that there had been no conversation at all prior to the officers’ entry to the premises. The man who the officers were looking for was not Jack Harper, but his neighbour Mark  who was visiting him at the time.

At 15.04h (therefore after 12 hours and 4 minutes in police custody) Jack Harper was bailed to attend the same police station at a later date.  Jack Harper was subsequently charged and bailed to attend Court where he pleaded not guilty.

At the subsequent trial, one officer gave evidence and claimed that Jack Harper had pushed him twice to the chest then lunged at him in an attempt to punch him. A second officer claimed that Jack Harper pushed the first officer off a step, pushed him again, swung a punch and then pushed both palms to the officer’s face.  A third officer claimed to have arrived later than the other two officers and to have seen Jack Harper raise his arm in the kitchen.  He and other officers pushed Jack Harper to the corner of the kitchen.

A submission of no case to answer was successful. The Magistrates ruled that there were so many inconsistencies in the evidence presented by the police officers that no Tribunal could properly convict Jack Harper.

When I was consulted by Jack Harper, I was satisfied that he had strong grounds for a claim not only because of the clear inconsistencies in the evidence of the Police Officers but because it was equally clear that the Police were trespassers in his home, and as such could not claim to have been acting in the execution of their duty, thereby rendering Jack Harper’s arrest and detention on suspicion of assaulting a constable in the execution of his duty entirely unlawful. 

An officer is not acting in the execution of his duty of he is a trespasser. The starting point for trespassing, is that without at least implied permission to enter onto someone else’s property, you are committing trespass if you do so enter.

Here, not only was there no implied permission to enter Jack Harper’s home, but he was expressly instructing the officers to leave – in no uncertain terms – but they ignored him. They were clearly all trespassers.

In certain situations, the Police can rely upon Section 17 of the Police and Criminal Evidence Act 1984 (PACE) to ‘override’ the general rules of trespass and lawfully enter premises without permission.  There are a number of specified situations where this power can be used e.g.

  • If the Police have a Warrant of Arrest.
  • In order to arrest a person for an indictable offence.
  • To re-capture an escaped prisoner.
  • To save “life and limb”.
  • To prevent an ongoing or imminent Breach of Peace.

(That is not an exhaustive list, but most of the other situations in which Section 17 PACE applies are fairly uncommon.)

In the present case, the only possible power the Police could have been using would have been Section 17(1)(b) – entry for the purpose of arresting a person for an indictable offence.  An indictable offence is a serious criminal offence to which the right of a trial by Jury in the Crown Court applies, as opposed to a more minor ‘Summary offence’ which can only be tried by the Magistrates’ Court.

Here, although I did not know for certain what the Police wanted Mark for, given the entry in the custody record, I suspected it was likely to be a relatively low-level offence e.g. Common Assault which is not an indictable offence – and hence the Police had no lawful authority to enter Jack Harper’s premises and could not have been acting in the course of their duty.

An officer cannot be acting in the execution of is duty if he is committing trespass at the same time.

My suspicions as to the lack of any lawful basis for entry onto Jack Harper’s premises, were confirmed when in response to my letter of claim, Merseyside Police admitted unlawfully arresting and detaining Jack Harper, and I was able to agree an ‘out of Court’ settlement of damages for his claim.

Sadly, Jack Harper is far from the only individual I have represented who has been arrested by Police Officers acting either in ignorance or wilful disregard of the law of trespass.

I currently act on behalf of John Stokes who pursues a claim against Merseyside Police.

During the late evening of the 18 December 2015, John was relaxing at home, in the company of his two children.

Shortly after 11.pm, Mr Stokes heard a knock at his front door.

John Stokes, believing that it was his partner at the door, requested that his son (then aged 16) go to answer the door.

Soon after John’s son returned, and advised that a Police Officer was at the door.

Mr Stokes went to the front door where he found a uniformed Police Officer standing with his left foot over the door threshold, inside the house.

Neither John Stokes nor his son had granted the officer any consent/permission to enter the address.  The officer simply took it upon himself to do so.

Unbeknown to my client, the officer was making house to house enquiries in respect of a serious road traffic accident which had taken place in the street earlier that day.  This accident was nothing to do with my client.

Understandably, John Stokes was displeased with the actions of the officer in standing partially inside his address and immediately requested that he remove his foot from its position.

In response, the officer  became immediately hostile/aggressive, stating that he could detect a smell of cannabis from the address and that he wanted to check for the presence of any substance.  So as to reinforce his intentions, the officer  then stood with both feet inside the house.

John Stokes, shocked at the arrogant and heavy-handed attitude of the officer retorted that there were no drugs within the premises and whatever suspicions the officer may have had in regards to the use of cannabis, these were mistaken.  John went on to suggest that it may well have been a smell emanating from neighbouring properties.

The officer insisted to our client that he had the right to enter the property and search for drugs and that if he wished to do so, then he would.

Mr Stokes was not prepared to be overborne by the officer and insisted that no-one from his address had consumed any drugs and that there was no aroma of cannabis.

The officer then stated that he would be obtaining a warrant and requesting dogs to attend.  My client understood the reference to dogs to mean dogs trained in the detection of controlled drugs.

Eventually, the patience of John Stokes came to an end.  Accordingly, he explained to the officer that it was time for his children to go to bed, his partner was due home and the officer’s suspicions were unfounded.

John then used minimal and reasonable force to push the officer backwards before closing and locking the front door.  Remember that the officer had not been invited onto the premises, and had no power to enter under PACE.  He was therefore at all times a trespasser.

The officer then proceeded to kick repeatedly on the front door, demanding that it be re-opened.

Not only was John concerned by the very conduct of  the officer itself, but was acutely aware that his partner, Julie was due to return home at any moment.  For this reason, he contacted Julie on her mobile to warn her of the presence/conduct of the officer.

Prior to Julie’s return, the officer had requested assistance from colleagues, who arrived a short time later.

When Julie arrived she entered the family home, followed (uninvited) by the officer and his colleagues.

Not only did the officer have no consent to enter the address, he was not acting under any lawful authority/statutory power by entering.

Shockingly, the officers then proceeded to handcuff and arrest John Stokes.

Despite it being obvious that he was in the process of being arrested, Mr Stokes was not told at the outset the reason for his arrest.

Some 10 minutes later, John was told that he was under arrest for assaulting the officer and that he would be moved to a Police Station.

Following arrival at St Ann Street Police Station, John proceeded through the booking in procedure, was searched and lodged in a cell.

Later during his detention, my client was required to provide his fingerprints, DNA sample and be photographed.

The next morning, John Stokes was interviewed under caution, during which he denied all allegations made by the officer.

Notably, during interview, he was not asked any questions pertaining to cannabis.

During the detention period of my client, the officer prepared a witness statement under the provisions of Section 9 of the Criminal Justice Act 1967.  This statement was used as the basis on which to charge my client with the single offence of assaulting the officer in the execution of his duty.

My client was bailed to appear at Liverpool Magistrates Court on the 15 March 2016.

At trial in September 2016 (having earlier pleaded not guilty), John Stokes was found not guilty, following a legal submission to the sitting Justices that the prosecution had failed to establish a case for my client to answer.

On the 6 December 2016, Mr Stokes submitted a formal complaint against the officer.

Following investigation, the complaint was upheld, in terms that John Stokes had been unlawfully arrested and subjected to unnecessary force.

Key findings of the Complaint Report are reproduced below:

“In the statement of the officer requests further patrols attend to assist with gaining entry into the property to arrest but does not stipulate for what offence.  There is a radio transmission which states the female occupant has returned and is opening the door.  In his statement he states that he followed her into the property as he wished to ascertain the safety and whereabouts of John Stokes and the 16 year old male and to arrest John Stokes for the assault. The female was shouting for the police to leave and get out of her house. 

The officer was asked under what power he entered the property to which he responded that he entered under Section 17(1) (D) – to enter and search a premises for the purpose of recapturing a person, as John Stokes had been told he would be arrested by the officer after he had assaulted him.  

Section 17 (1)(D) of the Police and Criminal Evidence Act 1984 (PACE) gives a power of entry to recapture any person whatsoever, who is unlawfully at large and whom he is pursuing.  

John Stokes had not been detained, or arrested, for any offence and was not unlawfully at large. 

At no point did he arrest John Stokes for drug related offences. 

He had no power of entry to enter to arrest for Assault Constable in the Execution of his Duty as it is not an indictable offence, it is a summary offence only. 

The officer had not been invited into the property, in fact in his statement he says that after explaining the reason to enter to Julie, she was shouting for the police to leave and get out of her house. 

The officer had no power of entry, was not invited into the property and was asked to leave.  Therefore, as there was no power of entry, the arrest and force used thereafter in the application of handcuffs was also incorrect.”

 All entries into John Stokes’s home by the Police that night were unlawful and constituted trespass.  Specifically, the officer had no initial consent or license to so enter and by remaining within the premises following a request to leave, his continued presence made him a trespasser.  Thereafter, the subsequent Police entry for the purposes of arresting John Stokes was not permitted by law, neither Section 17 (1) (B) nor (D) of the Police and Criminal Evidence Act 1984 being operative.  As stated above John Stokes had not previously been arrested (he was not an escaped detainee) and nor was the offence alleged by the officer an indictable offence, and nor in any event could the officer have been acting in the execution of his duty when he was in fact trespassing.  When John Stokes pushed the officer out of his house (with minimal force) the officer was not, in the eyes of the law, a Police Officer on duty, but in fact a trespasser.

John Stokes’s claim is continuing and I expect him to recover substantial damages.

Please contact me for advice if you believe Police Officers have unlawfully entered your home. In my experience there are numerous occasions when the Police overstay their powers in such situations, thereby becoming trespassers and it is only right to use the full force of the law to hold them to account when they do so.

What does it mean to assault a Police Officer in the execution of his duty?

According to up to date Home Office statistics, there are approximately 23,000 assaults against Police Officers in the course of their duty every year. There are 124,000 Police Officers in England and Wales, but nevertheless that first figure might appear shockingly high.

But what does it mean to assault a Police Officer whilst on duty? And can you claim compensation if in fact you have been wrongfully arrested for assaulting an Officer.

By virtue of s89(1) of the Police Act 1996, a person commits an offence where he assaults a Police Officer in the execution of his duty.

Assault’  is not defined  in the Act and so the Common Law definition applies; an intentional or reckless application of force (a punch, kick or even merest unwanted touching) or the fear of immediate unlawful violence to the person (even if that does not in fact then occur).   So the first thing to point out is that the majority of arrests and prosecutions for this offence are not brought in respect of violent, unprovoked attacks on Police Officers but rather in respect of ‘technical’ assaults, for example placing a hand on the Officer or lightly pushing the Officer away.   It is imperative therefore to put these statistics in context.

Be that as it may, whether the officer at the material time was acting in the execution of his duty is often the more controversial issue to resolve.  Various actions may take an officer outside the execution of his duty such as carrying out a wrongful arrest or being unlawfully on premises and therefore a trespasser.

It is a cardinal principle of the common law that a Police Officer has no power to take hold of or detain a person in the absence of lawful authority (this would, of course, constitute an assault upon that person) and that a person who is unlawfully detained is entitled to resist such unlawful act provided he uses no more than reasonable force to do so.

I recently concluded a claim for Lee Fisher of Hampshire wherein the Court had to determine whether his arrest was lawful and therefore whether the officer was acting in the execution of her duty. (Lee and his wife, Carley, have kindly agreed to me using their details.)

At all material times, Mr. Fisher and Carley were the owners of a small food service business which ran a catering van which ordinarily parked up for business in the Southampton Market Precinct.

On the afternoon of the 7 June 2014, Mr. Fisher was at the van helping out, together with his wife.

At approximately 3:30pm, Police Constable S and Special Constables S and W arrived at the van.

PC S introduced herself and the two Special Constables. She explained that she had attended so as to issue a harassment warning to Mrs Fisher in respect of comments made on a local news website regarding a local business man, Mr. A.

Mr. Fisher and his wife were at that time embroiled in an ongoing business dispute with Mr. A.

Both Mr. and Mrs. Fisher took exception to the issue of the harassment warning, advising the officers that the Police were being manipulated by Mr. A in an attempt to assist him in the ongoing business dispute and that involvement of the Police was  a waste of valuable public resources.

Mr. Fisher suggested that they all go and speak to Mr. A to resolve issues.

PC S warned  Mr. Fisher that he would be arrested should he approach Mr. A or enter his place of business which was located on the High Street.  Mr. Fisher replied that neither PC S nor any other Police Officer could stop him from going to the High Street.

Before the arrival of the officers, Mr. Fisher had intended to attend the local Argos Store with a view to  purchasing a fan.  The Argos Store was located within a short distance of Mr. A’s business premises on the High Street.

In the circumstances, Mr. Fisher left the van and proceeded towards the Argos Store.  En route, he entered BHS so as to use the toilets.

Mr. Fisher then entered the Argos store and spent three or four minutes in the store browsing before collecting a catalogue and then leaving the store in the opposite direction to Mr. A’s business premises and intending to return to the van.

Having left the store, Mr. Fisher saw PC S, SC B and SC W outside.

PC S called Mr. Fisher over.  He approached as requested.  At the time, he was carrying an Argos catalogue in his right hand and a drink carton in his left hand.

PC S advised Mr. Fisher he was under arrest for breach of the peace, notwithstanding the fact that he was walking in the opposite direction to where Mr A’s business premises were located.

PC S directed SC W to ‘handcuff him’.  SC W then grabbed Mr. Fisher’s left wrist and applied a handcuff to the wrist.  SC W then sought to force Mr. Fisher’s left arm behind his back whilst PC S took hold of Mr. Fisher’s right wrist.

My client believed his arrest to be unlawful and resisted the officers’ efforts to handcuff him by holding on to PC S’s right hand.  Mr. Fisher questioned the officers as to how he had allegedly breached the peace.   PC S advised that Mr. Fisher had been warned not to go to Mr. A’s business premises.

At this point, PC S directed her colleagues to take Mr. Fisher to the ground. The Claimant shouted words like “Don’t throw me to the floor, I’ve just had knee surgery” and resisted.  He was warned that he would be CS gassed. Mr. Fisher continued to protest his innocence and struggle.

SC B then performed a leg sweep manoeuvre taking Mr. Fisher down so that he fell forwards on to his front and landed heavily on both knees causing Mr. Fisher immediate pain and discomfort.

Mr. Fisher was then pinned to the ground with SC B kneeling on the back of Mr. Fisher’s  lower legs.  He was then handcuffed to the rear. Mr. Fisher immediately complained that the handcuffs were too tight and requested that they be loosened.  This request was initially refused.

Much to Mr. Fisher’s embarrassment, the incident took place in a busy shopping area in front of numerous passers-by, some of whom were taking photographs and videos on their mobile phones, presumably believing that they were witnessing the arrest of a violent and dangerous offender. 

Having been detained, Mr. Fisher  was advised that he was now also under arrest for assaulting PC S.  Other officers arrived and my client was escorted into a police van and driven to Southampton Custody Suite.

In the holding room of the Police Station, Mr Fisher was re-handcuffed from rear to front stack position.  By reason of the handcuffs, Mr. Fisher was at this time experiencing excruciating pain in both thumbs, wrists, hands and arms.

Mr. Fisher was taken before the Custody Sergeant where he was advised that he was under arrest for breaching the peace and assaulting PC S.

The circumstances of arrest as recorded in the Custody Record were said to be as follows;

Police giving wife harassment warning.  Male became angry and aggressive and said he is going to go down there.  Police warned that if he went down there he could be arrested for harassment or breach of peace. He said “I’m going to go down there and stand outside, that’s not harassment – Police said “If you go down there I will arrest you in order to prevent a Breach of the Peace”.  Male walked off saying he was going down there.  Police followed male walking in and out of shops and male was next to aggrieved’s address.  Male was arrested to prevent a Breach of the Peace.  During arrest male assaulted Police Officer by gripping and bending wrists back and trying to head butt same officer.

At approximately 23:55, the Claimant was interviewed under caution in the presence of his Solicitor.  In interview, he gave a full and detailed account and denied the offence. By approximately 1.00 on 8 June 2014 the interview had concluded. 

At 01.24, a post interview update was carried out by the investigating officer who endorsed the custody record as follows; 

“There is a statement of complaint from the victim [Police Constable S]. There are statements from the two witnessing Special Constables.  There is apparently no visible injury to the victim [PC S]. 

The DP has been interviewed.  He has given an account.  He denies the offence but states that he took hold of the officer’s hand to prevent himself being handcuffed as he didn’t believe that he had done anything wrong.  He denied trying to headbutt the officer. 

Two other officers, PC B and PC K, attended to assist after the DP has been arrested and were present when the DP tried to headbutt the officer.  Neither officer has yet made a statement. Both officers are on duty from 08.00 hours in the morning, 08/06/2014, and will be requested to make a statement. 

The area of the incident is covered by City CCTV.  However, they will not download the CCTV this evening.  CCTV will be available to review in the morning, 08/06/2014. 

PC S to be contacted in the morning to establish if any visible injury has developed. 

The DP admits in interview to taking hold of the officer in order to prevent himself being handcuffed, although he denies committing any offence in doing so.  The further enquiries documented above may be completed within the constraints of the Pace clock and would allow for a disposal decision to be reached. 

The DP will remain in custody whilst these enquiries are completed”. 

Later that morning, custody staff failed to give Mr. Fisher any breakfast notwithstanding an inaccurate entry on the Custody Record suggesting that at 07:14 Mr. Fisher was offered and accepted a hot meal.  When challenged, custody staff suggested that Mr. Fisher had in fact had his breakfast which he disputed.  Subsequently, Mr. Fisher was told “You’ve assaulted a Police Officer, that’s what you get”.

At 11:14, Mr. Fisher’s Solicitor rang for an update. The Custody Record states;

“The case is proceading (sic) but I do not have access to case/occurrence.  Solicitor advised – he made representations about the delay as he belienved (sic) that all we were waiting for was CCTV.  Sgt to be informed when she is free”.

At 12:00, a further update is recorded specifically;

“I have spoken to CIT in relation to the DP.  I have also reviewed the statements.  In short Fisher was detained for a BOP where he then resisted arrest and in doing so has injured the arresting PC.  Mr Fisher has admitted  to resisting arrest but states  that he was in disagreement with the arresting officer.  We have obtained statements from the arresting officer and also 2 other officers that were at the scene”.

At approximately 12.11, Mr. Fisher was charged with assaulting PC S whilst in the execution of her duty and released at approximately 12.14 on police bail to attend Court having been detained for over 20 hours in custody.

Mr. Fisher subsequently attended Court and pleaded not guilty.  The prosecution against him was adjourned for summary trial. The first trial had to be adjourned by reason of court administrative errors and then again because of  PC S’s unavailability.  The trial eventually took place 10 months later.   Following trial, Mr. Fisher was found not guilty.

The District Judge conducting the trial stated quite correctly that the primary issue to be determined was whether Mr. Fisher’s arrest for Breach of the Peace was justified.

The District Judge found that Mr Fisher was committing no crime by visiting the High Street and specifically was not committing any breach of the peace when the officers decided to arrest him.

Given that Mr. Fisher’s arrest for Breach of the Peace was unlawful, his arrest for assaulting PC S was also unlawful in that PC S was not acting in the execution of her duty.

Following an internet search Mr. Fisher contacted me.  He provided a full account and some prosecution papers.  I was satisfied that in light of the Court’s findings at the Magistrates’ Court trial, Mr. Fisher had a strong claim against Hampshire Constabulary for unlawful arrest, false imprisonment and assault and battery.

By reason of the incident, Mr. Fisher suffered both physical and psychological injuries.  I commissioned reports from both a GP expert and Psychiatrist.

Following examination, the GP expert found that Mr. Fisher

“suffered contusion injuries and neuropraxia to the superficial radial nerve at the dorsum of the wrist and that he made a full recovery within 6 months and that he also “suffered contusion injuries to the knees and calves.  Mr Fisher had suffered pre-existing chronic knee pain and the index incident resulted in aggravation of pain for the period of 6 months after the index incident”.

The psychiatrist concluded that

“Following the index events, Mr. Fisher suffered from an Adjustment Disorder (which was) likely to have lasted around 12 months and so having lasted beyond a 6 month period met the diagnostic criteria for Prolonged Depressive Reaction”.

Notwithstanding my confident assessment, Hampshire Constabulary failed to admit liability and it was necessary to issue court proceedings.  As is often the case, the act of instituting Court proceedings concentrates the mind and the Defendant responded  in a more positive manner. After a flurry of offers, I am pleased to confirm that Mr. Fisher’s claim settled for £20,000 plus his full legal costs.

As this case illustrates it is certainly not the case that all of those 23,000 recorded assaults upon Police Officers in the line of duty by the Home Office are in fact serious or substantiated.  The present case is an example, where the officer in question may have mistakenly believed she was acting in the execution of her duty, when in fact she was not, and Mr Fisher lawfully resisted her in an attempt to protect himself from a wrongful arrest.

Another feature of cases involving allegations of assault upon Police Constables is that it is often – as we saw here –  the suspect for the offence who has been left with serious injury and the alleged victim  (the Police Officer) who shows little or no discernible injury.

Lies, damned lies and statistics as they say?

Can I sue the CPS?

In my last blog, I referred to a successful claim against the National Crime Agency where by reason of an administrative mistake my client had been wrongly arrested and then given onerous bail conditions for several months.

The National Crime Agency admitted, correctly, liability for false imprisonment and breach of Articles 5 & 8 of the Human Rights Act.  However, any claim against the National Crime Agency  in negligence would, in my opinion have failed.  Why?  Because as a general rule, no duty of care is owed by the National Crime Agency (and other prosecuting agencies) because of the “Hill principle” which established that the Police (and other prosecuting agencies) owe no duty of care to individual members of the public for acts committed in the course of investigating  or suppressing crime.

The exception to that general rule is where the Defendant has assumed a responsibility towards a Claimant. That well-established proposition was most recently upheld by the Court of Appeal in An Informer v A Chief Constable [2013] Q/B/ 579 in which the Court cited with approval the decisions in Welsh v Chief Constable of Merseyside and Elguzouli-Daf v Commissioner of Police of the Metropolis and the Crown Prosecution Service.

Toulson LJ held:

  1. A third category case where the Hill principle does not apply is where there is a special relationship between the parties, or, more specifically, an assumption of responsibility by the police to the Claimant. 
  1. Lord Brown in Van Colle considered that Swinney v Chief Constable of Northumbria Police Force [1997] QB 464, considered  below, provided an example of such a case.  Moreover, in Van Colle, Lord Hope referred to the fact that Swinney had been distinguished by Lord Hamilton in Gibson v Orr, and accepted that it fell outside the Hill principle (page 623A).  The other members of the House, apart from Lord Bingham, agreed with Lord Hope. 
  1. An assumption of responsibility could also exist where the police take control of a situation, as where they hold a person in detention in a police cell. 
  1. An assumption of responsibility may be by express words.  In the analogous field of the liability of the Crown Prosecution Service (“CPS”) to a defendant in a criminal case, this is established by Welsh v Chief Constable of Merseyside Police, to which Pill LJ refers at paragraph 139 of his judgment.  Lord Brown also refers to Welsh at paragraph 135 of his speech in Van Colle.  Welsh was itself distinguished by this court in Elguzouli-Daf v Commission of Police for the Metropolis [1995] QB 335. This also concerned the question whether the CPS owed a duty of care to a defendant in the conduct of the prosecution to convey matters to the court.  This court recognised that a duty could arise if the CPS had voluntarily assumed responsibility to the plaintiff.  In Welsh, Tudor Evans J held that there had been an express assumption of responsibility. 
  1. The courts may also find an assumption of responsibility on an evaluation of the facts:  see the authorities cited by Pill LJ at paragraph 165 and 166 of his judgment.  If there is on the facts a sufficient relationship between the parties, the Hill principle does not apply.

Instances of “assumption of responsibility” are relatively few, but one such case concerned my client, Mr. S.

In May 2011, Mr. S , then 19 years old, was lawfully arrested by officers of Merseyside Police when he was found to be in possession of a small amount of Cannabis, a controlled drug of Class B, in contravention of the Misuse of Drugs Act 1971.

Mr. S was taken to his local Police Station where he was lawfully detained.

A short while later, Mr. S was charged as follows:

                ‘On 10/05/2011 you had in your  possession a small quantity of Cannabis, a controlled drug of Class B in contravention of section 5(1) of the Misuse of Drugs Act 1971’.

Immediately after charge Mr. S was bailed on condition that he surrender to the custody of his local Magistrates’ Court on 27 May 2010.

On the 25 May 2011, the CPS sent an email to Merseyside Police in the following terms;

‘Please see attached conditional caution authority.  Please can you arrange an appointment with the Defendant?  I note his phone number is on the charge sheet.  If this can be done prior to first appearance please sent confirmation ……..  The case can then be withdrawn at court without the need for the defendant to attend.  He is due in court on 27 May.  Otherwise the case will be adjourned for two weeks for this to be done.

Many thanks

[redacted name]

CPS Merseyside’.

On 26 May 2011 an officer of Merseyside Police attended Mr. S’s home address and advised him to attend his local Police Station in order to accept a caution and thereby avoid the need to surrender to the custody of the Court on the following day.

Mr. S as requested, attended at the Police Station where he was issued  with a conditional caution and was informed that he was no longer required to attend the Magistrates’ Court on 27 May 2011.

Mr. S’s custody record was then indorsed by Sergeant J.D. as follows:

                ‘D/P attends stn and is issued with cond caution as per CPS. All relevant forms signed and issued.  CPS, CJU and CMU informed’.

Sergeant J.D. at 15.37h on 26 May 2011 sent an email to the CPS as follows;

                ‘Mr. S has now been cond cautioned as req, PNC has been updated.  Please see below for signed docs.

                Cheers JD’.

Mr. S understandably relied upon the fact  that he had accepted the caution with the effect that the prosecution against him was withdrawn.  He therefore did not attend the Magistrates’ Court on 27 May 2011, having been assured by Merseyside Police that, in accordance with the email set out above, he did not need to attend.

On 27 May 2011 following Mr. S’s non-attendance, the CPS advocate in Court failed to inform the Court that the caution had been administered and the case against Mr. S. withdrawn.  No information was before the Court to confirm that the caution had been administered.

The CPS advocate instead at 12.05h asked the Court to issue a warrant not backed for bail for Mr. S’s arrest, which it did.  The Court register confirmed that the warrant for arrest without bail was issued on the following basis: ‘no appearance to answer to bail’.

The said warrant was then executed upon Mr. S at around 18.35h on 27 May 2011 by an officer of Merseyside Police who arrested him under no authority other than that provided by the warrant.

Mr. S was taken to his local Police Station where he arrived at approximately 18.50h and his detention was authorised at 19.02h ‘for the purpose of Warrant (no bail)’.

Mr. S was kept in overnight before production at the Court the next morning.

Mr. S explained  that he had already been cautioned for the offence of possession of Cannabis and  had been told that as a consequence the case against him had been withdrawn.  The Court Register confirmed that Mr. S was then granted unconditional bail until 6 June 2011 for the CPS to make enquiries.

On 6 June 2011 the Claimant returned to Court and after some 30 minutes, he was advised that a mistake had been made and he was released.

Given those circumstances, I was of the opinion that the CPS had “assumed a responsibility” towards Mr. S and were therefore negligent.  I argued that:

  • A duty of care in negligence existed because the CPS had assumed a particular responsibility towards M. S when by an email on 25 May 2011 it had requested Merseyside Police to administer a caution to Mr. S upon which it undertook to withdraw the case against him or, alternatively, because it would inevitably follow from the administration of the caution that the case against Mr. S would be withdrawn;
  • The CPS was (by the email from Sergeant J.D. on 26 May 2011) informed that the caution had been administered as requested.  The said caution was administered that day;
  • The CPS was in the circumstances under a duty on the morning of 27 May 2011 to take reasonable steps to update the Police National Computer, and/or to inform its advocates and/or representatives and the Court that:
  1. the caution had been administered such that the case was withdrawn;
  2. Mr. S need not attend Court;
  3. the Court was not seized of any offence in respect of Mr. S.
  • The CPS failed to take any such reasonable steps and therefore breached the aforementioned duty;
  • The CPS further breached the said duty when it caused the Court to issue a warrant for Mr. S’s arrest, which warrant caused Merseyside Police to arrest and detain Mr. S and to bring him  before the Court on 28 May 2011.

As a result of the said failure, Mr. S suffered loss and damage specifically; loss of liberty from the time of the execution of the arrest warrant at around 18.35h on 27 May 2011 until the time of his release from the custody of the Court on the morning of 28 May 2011, a total time of approximately 16 hours  and a further period of loss of liberty when he was obliged to surrender to the custody of the Court on 6 June 2011 for some 30 minutes.

Of course, the CPS disputed the claim and denied the assumption of responsibility and negligence.

Nonetheless I was satisfied with my assessment.  On my advice, Mr. S issued proceedings. The CPS maintained its denial and the case was eventually fixed for trial.

This was an exceptional but by no means unique case and I was adamant that a duty of care did exist because the CPS had assumed responsibility to Mr. S ‘by express words’.  Moreover, per Welsh and Eguzouli-Daf, that duty was to take all reasonable steps to convey information to the Court.  There was plainly here a ‘sufficient relationship between the parties’.

The facts in Welsh v Chief Constable of Merseyside Police [1993] 1 All ER 693 were strikingly similar: the CPS had agreed to certain offences being taken into consideration when the claimant was before the Crown Court, but then failed to relay that information to the Magistrates’ Court who had been dealing with him for those offences, resulting in him being taken into custody.

The Court of Appeal’s discussion of Welsh in Elguzouli-Daf [1995] Q.B. 335 was also useful.

‘The judge approached the matter on the basis that the CPS assumed by conduct a responsibility to keep the Magistrates’ Court informed as to the fact that the offences had been taken into consideration’.

The existence and nature of the duty of care in Mr. S’s claim was abundantly clear from the contemporaneous documentation:

(i)                  The CPS by email asked Merseyside Police to administer a caution to Mr. S on the explicit basis that if he accepted the same the case against Mr. S would be withdrawn at Court and he would therefore not have to surrender to the Magistrates’ Court the following day, or on any other date;

(ii)                An officer visited Mr. S’s home address to confirm this and Mr. S promptly attended the police station where the above position was again confirmed and the caution accepted.

(iii)               Sergeant JD of Merseyside Police endorsed the Custody Record confirming that the caution had been issued ‘as per CPS’ which, confirmed, if further confirmation were needed, that it was the CPS  who had taken the decision to offer to Mr. S a caution which would obviate the need to surrender to the custody of the Court, as per the email set out above;

(iv)              Sergeant D then indicated on the Custody Record ‘All relevant forms signed and issued.  CPS, CJU and CMU informed’.  The CPS did not deny that it was indeed informed that the caution had been issued.

The existence of the duty of care here was therefore manifest: the CPS had sent an email assuming a particular responsibility to Mr. S and Merseyside Police acted on the CPS’s behalf in communicating that Mr. S need not attend Court because the case against him was withdrawn upon his acceptance of the caution  on 26 May 2011.

Accordingly the duty of care imposed an obligation upon the CPS to inform its own advocate at South Sefton Magistrates’  Court on 27 May 2011 and also the Court that it had discontinued the case against Mr. S the previous day.

I assume that the CPS eventually realised the force of my argument ,as shortly before trial, I am pleased to report that the CPS agreed, albeit without a formal admission of liability, a substantial settlement.

As stated by Lord Justice Pill in  An Informer the “Hill principle” does not give the Police nor the CPS a “carte blanche” to mislead the Court.

There should be no expectation that the police or CPS can hide behind an ‘immunity’ from negligence claims in cases where they have not merely been careless or slow in progressing a case or evaluating evidence but were they have actively caused a person’s imprisonment by way of an obvious error.

Can I sue the National Crime Agency?

I was recently asked to take on a case for a Polish man living in London, Mr K.  He’d been arrested on a European Arrest Warrant and held for just under a day and then granted bail with onerous conditions that lasted nearly 2 months before being advised that his arrest had been “a mistake”.

In June 2012, the Regional Court in Warsaw had issued a European Arrest Warrant, arising from the conviction of Mr K on the 9 May 2006 for criminal offences.

In February 2013, the Serious Organised Crime Agency (now the National Crime Agency) certified the European Arrest Warrant, under Section 2 of the Extradition Act 2003.

In May 2013, Mr K was arrested by Thames Valley Police under the European Arrest Warrant and subsequently detained at his local Police Station.  He appeared in custody at Westminster Magistrates’ Court, whereupon he was granted bail, whilst the extradition proceedings were adjourned to a later date.

In November 2013, the extradition proceedings were formally discharged against Mr K under Section 21(2) of the Extradition Act 2003 on the basis that it would be disproportionate to grant the Extradition request when considering the applicability of the Human Rights Act 1998 to Mr K’s circumstances.

On the 20 November 2013, a representative of the National Crime Agency emailed the Regional Court in Warsaw, providing a copy of the Court’s decision and confirmed that no appeal was to be pursued against the decision to discharge extradition proceedings.

As far as Mr K was concerned, that was that.  He got on with his life.  Having put his past indiscretion behind him, he was focused on raising his young family and working hard as a self employed builder.

Sadly, because of administrative error, in November 2015, the very same warrant was re-certified by the National Crime Agency and on the 30 March 2016, Mr K was arrested for a second time.

Mr K was transported to and detained once again at his local Police Station, where his detention was authorised on the basis of the European Arrest Warrant. Mr K was held overnight before once again, appearing in custody at Westminster Magistrates’ Court the next day.

During the hearing it was explained to the Court that the proceedings appeared to have been commenced in error, resulting from the re-certification of the same Warrant which had been discharged by the Court on the 12 November 2013. Proceedings were adjourned until the 19 May 2016 and thereafter the 31 May 2016 for the issue to be investigated.

Given the concerns which had been raised as to the lawfulness of the proceedings against Mr K, the CPS did not oppose an application made for bail on behalf of Mr K, which was granted, subject to the following restrictive conditions:

  1. Reside each night at the family address.
  2. Curfew between midnight – 04.00h (doorstep monitoring).
  3. The surrender of Mr K’s  passport together with a prohibition on applying for any travel documentation.
  4. To report at his local Police Station each Tuesday, Thursday and Saturday between 5.00 – 7.00pm.
  5. To ensure that Mr K’s mobile telephone was switched on/charged at all times.
  6. Not to attend any Port, Airport or International Rail Station.

On the 19 May 2016, the CPS carried out a review of the proceedings and determined that the European Arrest Warrant (certified by the National Crime Agency on the 12 November 2015) was in fact identical to the previous European Arrest Warrant discharged on the 12 November 2013.

The reviewing CPS lawyer contacted and spoke to a representative of the National Crime Agency, who reviewed the National Crime Agency file and conceded that the European Arrest Warrant was indeed identical to the previously  discharged Warrant, that a new European Arrest Warrant had not been issued and that the certification was in error.  The National Crime Agency  therefore did not oppose the CPS decision to apply to discharge the proceedings.

At Court on the 31 May 2016, the proceedings were formally discharged on the basis that no valid certificate was in force.

Mr K understandably now wanted restitution for his unlawful arrest and found a firm of solicitors online who pay to be number one in the Google rankings and claim to be experts in such cases.

Sadly, despite claiming to be experts in this specialised area, Mr K’s solicitors were fairly clueless as to who might be responsible;  was it the Police who arrested Mr K, the National Crime Agency who re-certified the Warrant or the Crown Prosecution Service for prosecuting the warrant?

The solicitors instructed counsel who following review determined that a claim be intimated against the Crown Prosecution Service.  The solicitors accepted this advice and duly sent a letter of claim.

Following investigation, the Crown Prosecution Service (correctly) denied liability maintaining that they had no involvement in the offending Warrant’s re-certification nor in the Warrant’s execution and Mr K’s arrest.

Upon review, the solicitors again sought counsel’s advice.  Counsel agreed that the denial by the Crown Prosecution Service was justified and further advised that both the Crown Prosecution Service and the National Crime Agency “are essentially immune from the imposition of a duty of care” and that prospects of success were 50% or less.  In the circumstances the solicitors were no longer willing to act and promptly closed their file leaving Mr K ‘up the proverbial creek’.

Mr K wasn’t prepared to give up.  He established contact with me following an internet search for an experienced specialist lawyer.  He provided a detailed history.

It was obvious to me that the only agency at fault was the National Crime Agency for it was they who had re-certified the Warrant in error.  But what of the suggestion that the National Crime Agency (and the CPS) were “immune” from liability?

It’s true that when considering a claim for negligence, a Claimant can only succeed if he can establish that a duty of care existed on the facts of the case.  As a general rule, no duty of care is owed by  the NCA/CPS to those prosecuted by those state agencies. This follows from what has come to be known as the ‘Hill principle’ arising from the House of Lords decision in Hill v Chief Constable of West Yorkshire  [1989] AC 53 which established that the police owed no duty of care to individual members of the public for acts whether they be suspects, or potential victims of crime for the way in which an investigation is conducted. Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 confirmed that the argument against imposing a duty of care on the CPS was even stronger because the work of the CPS involved the use of their discretion.  The prosecutors were under a duty to treat defendant’s fairly but it did not follow that defendants should therefore be able to sue them for negligence.  If such a duty were imposed there was a risk that prosecutors would be encumbered by seeking to protect themselves against such claims and valuable time and resources would be wasted.  This principle applies without doubt to the NCA also.  So, in short any claim for negligence was bound to fail.

But, Mr. K had  been wronged; a mistake had been made and he had suffered loss.  Was there an alternative remedy?

It struck me that Mr. K could bring an action for either false imprisonment or breach of the Human Rights Act.

False imprisonment

The normal test to identify the tortfeasor liable for false imprisonment is to ask who was ‘active in promoting and causing’ the detention.  See Aitken v Bedwell (1827) Mood & M 68; Ansell  v Thomas [1947] Crim LR 31, CA.

Here for the purposes of the claim for false imprisonment  it appeared that the NCA was the instigator, promoter and active inciter of Mr K’s arrest and imprisonment.  That phrase is taken from the Court of Appeal judgment in Davidson v Chief Constable of North Wales[1994] 2 All E.R. 597.

It was the NCA who erroneously re-certified the Warrant that led to the issue of the Warrant and Mr. K’s arrest and therefore the NCA who had instigated Mr. K’s  imprisonment which lacked lawful justification and was therefore tortious.

Breach of Human Rights

I was also of the view that Mr. K might also have a claim for breach of the Human Rights Act 1998 (specifically his right to liberty under Article 5 and right to privacy and family life under Article 8 of the European Convention on Human Rights (“ECHR”).

It is unlawful for a public authority to act in a way which is incompatible  with rights which arise under the ECHR (section 6(1) of the Human Rights Act 1998). The victim of such an alleged  unlawful act may bring proceedings against the relevant public authority (section 7 of the 1998 Act).

Article 5 ECHR

Article 5 ECHR protects the right to liberty and security of the person, and holds that no-one shall be deprived of his liberty “save in accordance with a procedure prescribed by law”.  Article 5(4) states that everyone who is deprived of his liberty by arrest or detention is entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Article 5(5) states that everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

The case of Zenati v Commissioner of Police of the Metropolis [2005] EWCA Civ 80 is helpful in confirming that a person who has been deprived of liberty can bring a successful claim for damages for breach of Article 5, even where he cannot under the English Common Law either –

(a)    bring a claim for False Imprisonment because his detention has been carried out pursuant to a warrant issued by a Judge;  nor

(b)   bring a claim in negligence because of the absence of an established duty of care (indeed the positive and repeated assertions of the Court that there is no duty of care owed in the circumstances – as per Hill and Elguzouli- Daf cited above)

As Lord Dyson said in his judgment in the Zenati case (para 50) “It is well established  that where an imprisonment is effected through judicial proceedings, liability for false imprisonment virtually disappears”.

In Zenati, the Claimant had been detained on suspicion of having a forged passport, and was remanded in custody by the Magistrates Court. At the time of his arrest there was reasonable suspicion he had committed the offence, and the subsequent authorisation of his detention by the Court removed his right to sue for False Imprisonment even when the following events occurred – The National Document Fraud Unit (NDFU) established that the passport was in fact genuine on 19 January, but the Police failed to pass this information on to the CPS until 9 February (whereupon Mr Zenati was immediately released from custody).

Lord Dyson held that whilst Mr Zenati could not bring a claim for False Imprisonment (because the Court had authorised his detention, innocently unaware of the true state of the facts) he did have an arguable claim under ECHR  5.1(c) – that once it was known to the Police that lawful grounds for a person’s continued detention no longer exist, it is incumbent on them to obtain that person’s release as soon as possible – and also under ECHR 5.3 – that in failing to promptly convey the crucial evidence to the CPS and the Court, the Police were responsible for breaching Mr Zenati’s right to have his case investigated and processed with “special diligence” i.e without unnecessary delay.

In respect of the claim under 5.3 Lord Dyson even felt that Mr Zenati had an arguable claim relating to the period of his detention prior to 19 January, on the basis that the CPS were too slow to request a forensic examination of the passport between 10 – 31 December and/or that the Police were then too slow in referring the passport to the NDFU for examination between 31 December – 13 January.

As Lord Dyson concluded “In all the circumstances, I consider that it is arguable that the Claimant was in custody for an unreasonably long time as a result of the dilatory conduct of the CPS and the police”.

Interestingly, it appears that the result in Elguzouli-Daf may well have been different, had the Claimant in that case been able to present his case as a breach of the ECHR rather than just in negligence – but of course it predated the Human Rights Act 1998 which incorporated the ECHR into UK law.

Article 8 ECHR

Article 8 of the European Convention on Human Rights 1950 (“ECHR”) provides (emphasis added):

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is 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 freedom of others.

In this case, Mr K as well as being deprived of his liberty also of course had his right to free and full enjoyment of his  family life infringed with by his detention overnight in Police custody and the onerous bail conditions then imposed upon him.

In the case of Keegan v UK (2007) 44 EHRR 33  the European Court of Human Rights held that a family’s Article 8 right had been infringed by a Police raid on their home because the Police had failed to make proper enquiries to establish if the person they were looking for still resided at that address (the Keegans had in fact moved in 6 months previous to the raid).

Once again, therefore  ECHR rights were utilised to allow for a claim to proceed where, under the Common Law alone, there would have been no right to sue in negligence or for trespass (the latter because the search was carried out in accordance with a warrant of the court).

Arguably, if the NCA had taken reasonable precautions to check whether the warrant should have been re-certified in this case, the unjustified infringement of Mr K’s  Article 8 rights could have been avoided.

Breach

In Mr. K’s case the fact that the European Arrest Warrant was erroneously re-certified meant that there were no legitimate extradition proceedings in place.

In the circumstances of Mr. K’s case, by failing to check (properly or at all) whether or not the warrant should in fact have been re-certified, the NCA failed to act with due diligence or to take reasonable precautions to ensure that Mr. K’s  rights under Article 5 and 8 ECHR were not infringed.

Mr. K’s detention and the bail conditions he was subjected to were therefore  in my opinion not in accordance with the law, and in breach of his rights as protected by Articles 5 and 8 ECHR.

In the circumstances, I was satisfied that Mr. K had a good claim.  Fortunately, Mr. K had approached me just in time.  I immediately issued protective proceedings because of the tight Human Rights limitation period (I year less 1 day).  I then  intimated a claim against the NCA who soon enough recognised the strength of Mr. K’s case and admitted liability for both False Imprisonment and breach of the  ECHR.  Following negotiations, I settled Mr. K’s claim for £11,500.00 plus costs and ensured settlement was on the basis that the NCA system was updated to reflect that any EAW issued against Mr. K had been discharged and that he was therefore no longer at risk of any wrongful arrest.

To conclude, yes you can sue the National Crime Agency but this case demonstrates what a complex area of the law this is, and the importance of obtaining the right specialist legal advice from an experienced practitioner such as myself from the outset.  Mr K’s original solicitors had effectively been ‘scared off’ his case because they only half understood the law.  They were correct to recognise the immunity from a negligence suit which applied to the NCA  but they failed to see the strong alternative bases for his claim in the tort of False Imprisonment and under the Human Rights Act.

Thankfully, Mr K came to me just in time,  and I was able to ensure that justice was done.  If you feel you may have a claim against the National Crime Agency, please contact me for advice.

Unlawfully arrested for failing to allow bailiffs into your home?

An Englishman’s home is his castle goes the old saying, enshrined in law by the judgment of Lord Camden (who probably did live in a castle) in the 1765 case of Entick v Carrington: 

Every invasion of private property, be it ever so minute, is a trespass. No man can set foot upon my ground without my licence, but he is liable to an action though the damage be nothing.

Of course, there was an important qualification to this, in the words of Lord Camden –  “Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good” – or in other words, the right of legitimate agents of the State, principally bailiffs and police officers to enter private property in a number of situations which are carefully limited and controlled by the law.

What rights do bailiffs have to enter your home ?

The starting point for Bailiffs (whose correct legal description following the Tribunals, Courts and Enforcement Act 2007 is “Enforcement Agent” – quite a mouthful of a title replaced a historic but well understood term; I will use the two terms interchangeably in this blog) is that they have a right to peaceful entry of premises only i.e. they cannot force their way in, although they could open and go through an unlocked door.  At the same time there is no obligation on you as the occupier of the premises to let the Bailiff in.

What a Bailiff cannot do (except in certain circumstances which are specified below) is break open a door or window, use a locksmith to pick a lock, or to force their way past someone at a door (the classic bailiff manoeuvre being to try to put their foot in the doorway to prevent the door being closed).

A Bailiff will only have a right to force entry to your home on a first visit if they are there to collect unpaid Magistrates’ Court fines.

Even then –

  1.  They are only allowed to use reasonable force  i.e. a locksmith who will unlock the door – not a battering ram!
  2. They cannot force their way past you if you are blocking the door (Paragraph 24 (2) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 expressly states that “Power to use force does not include power to use force against persons”)
  3. They can only enter through a door, not a window.

On a first visit in respect of enforcement of any of other types of debt however, the Bailiff is simply not allowed to use any force at all, eg –

  • Tax arrears
  • Credit card/catalogue debts
  • Parking fines
  • Money owed to Utility Companies (e.g. water, energy or telecoms).

I talk about a ‘first visit’ because if you do allow the Bailiffs into your home and they make an inventory of your belongings and/or you enter into a “Controlled Goods Agreement” (i.e. they agree not to remove your belongings provided you comply with a repayment plan to discharge your debt) then on their return visit the Bailiffs would be able to use reasonable force to gain re-entry to your property, notwithstanding what kind of debt was being recovered.

Visits by Bailiffs are obviously in their nature very stressful and tense affairs, often exacerbated by aggressive actions and behaviour from the Bailiffs, some of whom don’t know the limitations on their powers of entry and others of whom are prepared to abuse those powers in order to ‘bully’ debtors into giving them what they want.

Often, one or both sides to the dispute – the debtor and the Bailiff/Enforcement Agent will call the Police if matters become heated or a ‘stand-off’ occurs.

It is important to understand that the role of the Police is not to automatically side with the Bailiffs. The Police in attending any given situation should have as their priority preventing a Breach of the Peace, but if none is occurring, nor any other crime being committed, it is not their business to get involved.  They are not supposed to function as ‘cavalry’ coming in to back up the Bailiffs and to help them get their job done. As explained above, there are many situations where the Bailiffs may be enforcing a valid warrant for a valid debt but nonetheless still do not have the right to come into your home unless you let them.  Neither they nor the Police have the power to compel you in that situation to open your door and let the Bailiffs in.

It is open to the Bailiff to go back to the Court to seek permission from a Judge to use reasonable force to gain entry if this is denied to them, but as stated above on a first visit there are only a very limited number of situations in which they can resort to force without further permission from the Court.

On the other hand, if a Bailiff is operating within his legitimate powers and a debtor or other occupier of the premises obstructs them from carrying out their job then that can amount to a criminal offence in accordance with Paragraph 68 of Schedule 12 of the Tribunals Court and Enforcement Act 2007 (which codifies the law in regards to the powers of Enforcement Agents in England and Wales, as referred to above).

The question of course, as to whether the Bailiffs are acting within the boundaries of the law, and therefore whether your ‘obstruction’ of them is unlawful or not is the key question – a question often, in my experience, incorrectly answered by Police Officers who have attended at the scene under the mistaken apprehension that they are there as the Bailiffs’ ‘big brothers’.

And it is a question which was very much at the heart of a case I recently concluded on behalf of my client Harry Bush (name changed).

Unlawfully arrested for refusing entry to Bailiffs

Mr Bush instructed me to bring a  claim for compensation against Sussex Police as a result of the following incident.

On the evening of the 25 July 2015 my client made an emergency call to Sussex Police to report that Bailiffs were attempting to unlawfully enter his home address in Eastbourne in order to execute a High Court Order (Writ of Control).  It is understood that at about the same time one of the Bailiffs, a certified Enforcement Agent, Mr Neckett also contacted the Police requesting their assistance to enforce the Writ of Control.

The Writ of Control in question related to a debt owed by Mr. Bush to South East Water – and hence, it will be noted, was one of those types of debt in relation to which Bailiffs/Enforcement Agents do not have an automatic right to force entry to a person’s premises.

Furthermore, Mr. Bush had on the 1 July 2015 agreed a 30 day suspension of any enforcement action against him with the Bailiff Company.

Notwithstanding the fact that he had been given this ‘period of grace’ in which to arrange payment, and which should have took him up until the 31 July, two Bailiffs attended at his premises on the 25 July, only one of whom – Mr. Neckett was a certified Enforcement Agent.

My client explained to Mr. Neckett and his colleague that it had been agreed that enforcement action would be suspended against him until at least the 31 July, but not withstanding this Mr. Neckett insisted on being allowed into his premises. Hence the telephone call from my client to Sussex Police.

As Mr. Bush subsequently attempted to exercise his right to close his front door to the Bailiffs, Mr. Neckett’s assistant Mr. Ball wedged his foot across the threshold, thereby preventing closure of the door.

This use of force by one of the Bailiffs to prevent the door being closed was doubly unlawful, as explained above, in relation to the nature of the debt which the Bailiffs were seeking to enforce. They had neither the right to use force against the door, nor any person present (in this case Mr Bush, who was trying to close the door). The Bailiffs should not have done it.  Mr. Bush was entirely within his rights to close the door to them and not to allow them on the premises if he chose not to.

Nevertheless (though probably unsurprisingly) when four Officers from Sussex Police then attended at the scene, they immediately took the side of the Bailiffs.

When the Officers arrived, Mr. Bush was still standing in the doorway, only being prevented from closing the door by Mr. Ball’s foot.  As explained above, the Bailiff did not in fact have a legal foot to stand on (shall we say) but the Police chose to overlook this. I would suspect this is because of the Police Officers’ ignorance of the law surrounding the rights of Enforcement Agents and (probably of equal importance) their natural inclination to side with the Bailiffs against the debtor.

My client explained to the Police Officers that the Writ was supposed to be on hold for 30 days, but was ignored.

Furthermore, and in any event, my client  asserted the right that he knew he could refuse entry to the Bailiff if he chose to do so. His conversation with the Police officers about this was recorded on one of the officer’s body cam, and throughout the conversation Mr Bush comes across as calm and entirely reasonable; he does not shout or behave in any way aggressively. He simply asserts the law which governs Bailiffs and which he fully understood – but which sadly, no one else present apparently did.

This resulted in a bizarre exchange in which one of the Police officers accepted that the Bailiffs had no right to force their way in – but then asserted that if Mr Bush did not let them in, he would be arrested.

Indeed, one of the officers  then stated that he was arresting Mr. Bush for obstructing an Enforcement Agent (contrary to paragraph 68 of Schedule 12 of the Tribunals Court and Enforcement Act 2007).

The relevant provision states –

A person is guilty of an offence if he intentionally instructs a person lawfully acting as an Enforcement Agent.

Here of course, either overlooked or disregarded by the Police Officers, was the fact that the Enforcement Agents were not acting lawfully because they had attempted to use force to enter the premises, by way of placing a foot in the door. Furthermore, at the moment Mr Bush was arrested, the Bailiffs were standing outside the property, with no right to enter, and he could not therefore have obstructed them.

Sadly, the Bailiffs had overstepped their powers in using force to keep the door open, and now the Police Officers were overstepping their own powers in arresting Mr. Bush without an actual offence having been committed.

On a side note – but one which is not unimportant – the arresting officer handcuffed my client as soon as he arrested him despite no physical resistance being offered. All force including handcuffs must be proportionate to the situation, and Mr Bush’s calm and reasonable demeanour in no way justified tying his hands behind his back.

Whilst in handcuffs, Mr Bush tried again to make the arresting officer understand the law asserting “He [the Bailiff] doesn’t have the right to enter my house without me letting him in”. To this the arresting officer  again agreed that the Bailiff’s warrant doesn’t give an automatic right to enter Mr Bush’s house without his permission, which begs the following question as asked by my client “Then why did you let them in?” (With the doorway now clear because Mr Bush had been handcuffed and taken into the living room by the Police, the Bailiffs had come into the house). The officer’s reply (which you almost couldn’t make up) was “Because you’re obstructing them from doing their job”!

In other words- the officer was agreeing that the Bailiffs had no right to enter without permission, but then asserting that if  permission was refused, a criminal offence would be committed – which of course is exactly the same as saying the Bailiffs did have a right to enter without permission. With respect, it should have been blindingly obvious to the officer that what he was saying made no sense, something the officer perhaps reflected on when he then asked Mr Bush to stop asking him questions.

The arresting officer’s female colleague then offered her own interpretation of the law, telling Mr Bush the following –

“If they [the Bailiffs] can’t get in – they call us [see what I mean about Police Officers thinking they’re there as ‘reinforcements’ for the Bailiffs?] – we act to prevent a Breach of the Peace [at no point was Mr Bush ever arrested for Breach of the Peace] – and if you obstruct them we have legislation which entitles us to arrest you.”

Quite a jumble of misunderstood sections of the law, to which I would like to echo Mr Bush’s reply at this point to the officer –

“I’m really, really sorry but you’re wrong”.

My client was taken from his home in handcuffs to Eastbourne Police Station and there processed, including having to provide his fingerprints and a DNA sample.

He was held in a locked cell, interviewed under caution and not released until 2.35am the following morning after over 6 hours in Police detention.

Initially Mr. Bush was released on Police Bail, but on 2 September 2015 he was notified by the Police that they would not be proceeding with any charges against him.

Quite rightly upset by what had been done to him, my client submitted a formal complaint against the Officers who had dealt with his arrest, a complaint which he lodged on the very day he was released from custody.  The complaint outcome was that management action was taken against each of the Officers who had attended the scene.

Furthermore,  Mr. Bush pursued a complaint against the Bailiff Company,   who after investigation confirmed that his account should have been recorded as suspended for a period of 30 days from 1 July, but had in fact been suspended for unknown reasons for a period of 7 days only, and he was offered a written apology from the company in this regard.

In my opinion, however, the key point on which this case turned was not the failure of the Bailiff’s company to properly record the agreement they had entered into with Mr. Bush, but the failure of the Bailiffs to comply with the law, i.e. their unlawful use of force and the subsequent failure of the Police Officers to understand the illegality of the Bailiffs’ behaviour. The prevailing confusion which was evident amongst the Officers at the scene of the arrest as to what rights the Bailiffs had, and what conduct by the homeowner amounted to a criminal offence, was also apparent during the wider Police investigation in the weeks following Mr Bush’s arrest – the investigating officer  having to resort to an internet search, excerpting quotes from public advice websites, to find out what powers of entry Enforcement Agents had! It is really quite shocking that Police officers apparently routinely arrest people for ‘offences’ committed in relation to a law which they apparently haven’t been given the training to properly understand. Personally, I don’t think we should be conducting law enforcement by ‘Google’ search.

The Police Officer investigating Mr. Bush’s case, increasingly concerned that in fact no crime had been committed, eventually reached the following conclusion which is recorded in an Investigation Log entry dated 8 August 2015 –

Internet research has highlighted a common theme/issue when the EO’s put a foot over the threshold. This then enters the arena of ‘forced entry’ and an EO is not entitled to force entry to residential premises (they can however if dealing with a commercial property).  Rai and Rai v Birmingham City Council 1993 held that a boot in the door was illegal.  Essentially this act of putting a foot in the door is known as a ‘threshold manoeuvre’ and since 2008 this is not a recognised/lawful technique.

As I have stated above, the ‘foot in the door’ manoeuvre is also illegal contrary to Para 24(2), Schedule 12, of the Tribunals, Courts and Enforcement Act 2007.

The Investigating Officer also appears to have, albeit somewhat belatedly, taken into account the fact that on the evidence available, the force was only coming in one direction i.e. from the Bailiffs trying to force their way into the property, and the only ‘threat’ that my client could have been said to have made was his ‘threat’ to call the Police.  Other than this, his refusal to grant the Bailiffs peaceable entry onto the property, and his argumentative but not threatening stance in regards to what he honestly believed to be a ‘suspended’ Enforcement Writ, could hardly be said to constitute obstruction of the Enforcement Agent’s lawful powers. Hence the decision not to prosecute my client, which was very welcome, but had sadly been preceded by all the unnecessary stress, time and expense of his arrest and imprisonment at the Police Station beforehand.

On the basis of the above I brought a claim for compensation for false imprisonment and assault (principally in regards to the unnecessary application of handcuffs to Mr. Bush, and the psychological effect which his incarceration had had upon him) in response to which Sussex Police accepted that they had unlawfully arrested Mr. Bush and that the placing of handcuffs upon him amounted to an assault.

After I had commissioned medical evidence on behalf of my client I was eventually able to negotiate a settlement for him in the sum of £9,000 plus legal costs.

If you feel you have been unlawfully arrested during a dispute with Bailiffs then please contact me for advice.  As you can see, it is not only the Bailiffs themselves but often the Police Officers called upon to keep the peace who do not know or fully understand the law in this area, leading to the heavy-handed treatment and unlawful arrest of people that simply try to stand up for their civil rights.