This week’s blog post concerns incompetence and overreach of powers by West Midlands Police in the form of their unlawful arrest of my client Asif Hussain.
Several days prior to the index incident Asif had attended his mother’s house, where his brothers and nephew reside as well. An ambulance was called for my client’s elderly mother as she was unwell, and an argument occurred between Asif and his brothers regarding their treatment of his mother. My client’s nephew then assaulted him and police officers attended, however Asif reasonably declined to make a criminal complaint against his nephew.
On 19 November 2021 at approximately 10:35 am Asif was asleep at his own home in the Sandwell area of Birmingham. Two officers from West Midlands Police, PC Weaver and PC Pugh, attended. The officers proceeded to knock on the front door, however this did not awaken Asif. On not receiving a response the officers proceeded to peer in through the front windows, attracting the attention of passers-by. The officers then returned to the front door where PC Pugh began to bang on the door and shouted Asif’s name through the letterbox.
PC Weaver then climbed over the garden gate, damaging a fence panel in the process, and entered the rear garden of my client’s house. The officer then looked through a rear glass door before trying the handle and discovering it was locked. All of this was captured by my client’s home CCTV security system.
Asif’s son now woke him and informed him of the officers’ presence. Asif opened the front door and PC Pugh immediately stepped, uninvited, inside the property. Asif’s son recorded the subsequent conversation between his father and PC Pugh on his mobile phone.
PC Pugh said that he needed to speak with Asif, who replied that they could speak where they were, however PC Pugh refused and insisted on coming further into the premises. Asif declined to allow PC Pugh further entry into the house and asked if he was under arrest. Asif assumed that the officers had attended to arrest him in relation to the previous incident with his nephew, and certain of his own innocence, and not wanting to make a fuss, put on his shoes and said to PC Pugh to “I know what you’re here for … just do the honours”. Asif then voluntarily stepped out onto the doorstep of the house, whereupon PC Pugh took hold of his right wrist and placed him in handcuffs to the front, which were applied extremely tightly. Over and above this discomfort however, Asif was concerned and embarrassed that his neighbours might see him in handcuffs, and so requested that his son place a coat over his wrists to conceal the handcuffs. He felt quite correctly felt that this use of force was grossly unnecessary, given his entirely compliant behaviour and demeanour.
Whilst this was occurring PC Weaver tried but failed to get back over the premises’ garden gate. Instead, he climbed the fence and entered the garden of a neighbouring property, exiting through their gate and joining my client and PC Pugh at the front of the house.
PC Pugh and PC Weaver then escorted Asif over the road, as they did so PC Pugh told Asif “We’ll jump in the van and then we’ll have a conversation”. Asif was placed into the rear seating area of the police van, accompanied by the two officers who closed the door of the van, apparently to prevent Asif’s son from continuing to record their interactions.
PC Weaver only now informed Asif that he had been arrested for malicious communications in relation to a card he had allegedly sent to his brother. Asif asked PC Weaver to remove the handcuffs as they were too tight, but this was (quite typically) refused.
Asif was then conveyed to Oldbury Custody Suite. After approximately 30 minutes he was brought before the custody sergeant, PS Bains, and only now were his handcuffs finally removed. As recorded on Asif’s custody record PC Weaver gave the circumstances of arrest as:
IP, Shahid HUSSAIN has received a thanks card from the PIC (his brother) which states ‘2 murderers – it was really kind of you to make our mother suffer in pain with severe kidney infection – you have blood on your hands’.
PS Bains then took PC Pugh to one side and spoke to him out of my client’s hearing. After a few minutes PS Bains and PC Pugh returned, and PS Bains informed Asif that he could not hold him. PS Bains then endorsed Asif’s custody record with the following, to confirm that as the Custody Sergeant he was exercising his discretion to refuse to detain Asif:
Reason: From the circumstances I have been given from arresting officers I do not believe the offence of malicious communications has been made out. Therefore detention has been refused.
Asif was then released, although he was now stranded at the Police station and so forced to call his family to come and collect him. Sometime later he received a call from an officer at Perry Barr Police Station informing him that there would be no further action in respect of the allegation.
As a result of the use of handcuffs Asif was left with marks to his wrists that remained visible and painful for several days afterwards. He attended his GP who noted his injuries and that he had potentially suffered nerve damage. The GP recommended that Asif take painkillers and referred him to physiotherapy.
Of course, the effects of this incident upon Asif were not merely confined to the physical pain or temporary inconvenience – he felt humiliated and embarrassed and became deeply concerned about the impact that the incident might have upon his reputation in the local community, as well as suffering anxiety whenever visitors knocked on the door, in case they were once again officers coming to unlawfully arrest him. Asif understandably thought that neighbours might assume he was a ‘hardcore criminal’ given the length to which the over- zealous Police Officers had gone to gain entry to his property, including climbing over the garden fence.
The offence for which my client was purportedly arrested – Malicious Communications – is defined by the section 1 (1) of the Malicious Communications Act 1988 as follows-
1 Offence of sending letters etc. with intent to cause distress or anxiety.
(1)Any person who sends to another person—
(a)a [letter, electronic communication or article of any description] which conveys—
(i)a message which is indecent or grossly offensive;
(ii)a threat; or
(iii)information which is false and known or believed to be false by the sender; or
(b)any [article or electronic communication] which is, in whole or part, of an indecent or grossly offensive nature,
is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.
I would assume that it is obvious to anyone reading that definition of the offence, as it clearly was to Sergeant Bains, and comparing it to the ‘offending card’ that the statement in the card was neither threatening, indecent nor grossly offensive and PC Pugh and PC Weaver should have known this from the outset – however they appear to have given as little regard to this fact as they did to the question of whether it was really necessary to subject my client to painful imprisonment in handcuffs. The officers have focused only on the act of exercising their power and, crucially, not on its lawful justification. Perhaps the officers’ suspicion of the offence was honest – but it certainly wasn’t objectively reasonable. There also appears to have been a total lack of consideration by the Police as to whether the incident could have been dealt with by means of my client being invited to attend a non-custodial interview. This catalogue of failings led to the arrest of an innocent man.
The total period of Asif’s unlawful detention was (fortunately) only 50 minutes, but taking into account the aggravating features which I have highlighted above, being the adverse physical and mental impact upon Asif, I had no hesitation in rejecting West Midlands Police’s initial offer of settlement in the sum of £1,500 and have recently settled the claim for an agreed damages payment of £5,000 plus legal costs.
The default position of Custody Sergeants, in their role as ‘gatekeepers’ of the Police station is to agree with the opinion of their brother officers, and as a result the vast majority of arrestees become detainees following processing at the custody desk; the rare occasions when this does not occur are therefore clear ‘red flags’ that something has gone wrong, and if you have ever been in that position then I would urge you to contact me for review and advice. If a custody sergeant is rapidly showing a person the exit door rather than the cell door, the decision making and actions of the arresting officers deserve to be closely scrutinised and there will be strong prospects of a successful claim.
One question which I am frequently asked as a specialist in claims against the Police is the following-
When is it too late to sue the Police?
The answer to that question is highly dependent on the nature of the proposed claim i.e. what is the wrong that you are saying the Police have done to you?
Generally speaking, claims against the Police are usually brought as ‘torts’ i.e. infringements of a person’s civil rights as defined by the age old, foundational common law of England and Wales, built upon by centuries of jurisprudence and case law and/or as claims under the newer layer of citizens’ rights and protections laid down by modern legislation such as the Human Rights Act 1998, Equality Act 2010 and the Data Protection Act 2018.
The main time limits for bringing a civil claim (‘bringing’ in this sense defined as being the last date on which a County Court or High Court action can be commenced) are as follows:-
Claims brought under the common law – 6 years from the adverse event.
Claims under the Data Protection Act – 6 years from the adverse event.
Claims for breach of the Human Rights Act – 1 year from the adverse event.
Claims under the Equality Act – 6 months from the adverse event.
The ‘adverse event’ from which the period of limitation runs is generally a matter of common sense – for example, the date that you were assaulted, or the date that you were wrongfully arrested. Sometimes however the expertise of a lawyer is required to identify the relevant date – for example, the limitation date in a claim for malicious prosecution is not the 6th anniversary of the commencement of the prosecution i.e. when you are charged but rather the 6th anniversary of the prosecution being terminated in your favour i.e. the date on which the prosecution is discontinued or you are acquitted at trial.
Further complexities in terms of defining the limitation ‘anniversary’ arise in cases which involve prolonged abuse, negligence or misfeasance over an extended period of time and there once again careful examination of the facts and evidence by a specialist solicitor is essential.
Special Rules for Children and Personal Injury Claimants
Other, very important, exceptions to the general rules as to limitation periods are as follows:-
Under the terms of the Limitation Act 1980 (which governs limitation rules for common law rights in England and Wales i.e. tort law), the limitation period does not commence in the case of a child who has been injured or otherwise wronged until their 18th birthday. Likewise, the limitation period can be disapplied or suspended in the case of people lacking mental capacity.
Furthermore, and very importantly, the 6 year limitation period for common law claims is reduced to only 3 years if the claim includes personal injury – as of course the majority of claims against the Police do, whether such injury is physical or mental.
What the Limitation Act takes away with one hand, however, it simultaneously grants with the other – because any personal injury tort claim, whilst being subject to a shorter limitation period on the face of it (3 years as opposed to the 6 years you would have if you were claiming for say property damage only or ‘pure’ loss of liberty without physical or psychological injury) is also subject to Section 33 of the Limitation Act, which grants the Court discretion to allow the claim to be brought years – and potentially even decades – ‘late’ provided there is a good reason for this and it is in the interests of justice to allow the claim to proceed. The relevant section of the Act provides as follows-
33 Discretionary exclusion of time limit for actions in respect of personal injuries or death.
(1)If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—
(a)the provisions of section 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b)any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
…
(3)In acting under this section the court shall have regard to all the circumstances of the case and in particular to—
(a)the length of, and the reasons for, the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 or (as the case may be) by section 12;
(c)the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;
(d)the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
This is in effect our justice system’s acknowledgment of the significance of personal injury claims as being damage caused to the core of a person’s being as opposed to merely their property or other external possessions/conveniences. In effect the Court, through the mechanism of Section 33, is saying that personal injury claims are so important and potentially so valuable that they should be brought within 3 years so that both parties to the litigation know what they are facing and can fairly and properly present their cases in a timely manner – but if, however, there is a good reason why the Claimant has not acted within 3 years then discretion can be granted for that claim to be brought well after the expiry of the 3rd anniversary of the adverse event.
It should be immediately obvious that one such good reason to ‘excuse’ delay relates directly to the effect which the injury has had in psychological terms upon the Claimant. In many cases the delay in a person bringing a claim arises from the very harm and shame that they have suffered as a result of the assault or other abuse of power perpetrated upon them. It is only right, therefore, that the doors of Court remain open for such people to be able to argue their case and to present arguments as to why their claim should not be automatically struck out through mere expiry of time.
In a similar vein to Section 33 of the Limitation Act, the Human Rights Act provides at Section 7 (5)(b) that the Court can allow proceedings to be brought for Human Rights infringements well after the ‘basic’ 1 year limit provided that the Court considers such an extension “equitable having regard to all the circumstances”. In any such exercise, similar factors to those discussed above will apply.
Limitation Law: A Case Study
A recent example of the complex interactions of limitation legislation in practice is Mr Justice Johnson’s Judgment in TVZ v Manchester City Football Club[2022] EWHC 7 (QB), in which rulings were made that sexual abuse claims brought by the victims of football coach Barry Bennell were not ‘out of time’ in principle, despite being brought around 35 years after the events, and that S.33 discretion to proceed would have been granted to the Claimants but for a separate point of law relating to Man City’s liability for Bennell’s actions, as they argued that he was not employed by the club at the relevant time (1980- 85), and it was that uncertainty as to Bennell’s relationship with City which ultimately defeated the claims.
Cited with approval in the TVZ judgment are the principles expounded by Sir Terence Etherton MR in Carroll v Chief Constable of Greater Manchester Police[2017] EWCA Civ 1992 – namely, that the essence of the proper exercise of judicial discretion under Section 33 of the Limitation Act 1980 is a test of the ‘balance of prejudice’ and the burden is on the Claimant to show that his or her prejudice in not being allowed to pursue the claim would outweigh the prejudice caused to the Defendant. Sir Terence observed that this burden on the Claimant is “not necessarily a heavy one” and furthermore, that, whilst the ultimate burden is on the Claimant to show that it would be inequitable to disapply the statute, the burden in showing that the evidence adduced by the Defendant is likely to be less cogent because of delay is on the Defendant.
The Limitation Act is designed to protect Defendants from the injustice of having to fight ‘stale claims’ especially when any witnesses the Defendant might have been able to rely upon are not available, or have no recollection of events and/or there are no documents to assist the court in deciding what was done or not done and why. Sir Terence states “It is therefore particularly relevant whether and to what extent the Defendant’s ability to defend the claim has been prejudiced by the lapse of time because of the absence of relevant witnesses and documents……subject to considerations of proportionality …… the Defendant only deserves to have the obligation to pay due damages removed if the passage of time has significantly diminished the opportunity to defend the claim on liability or amount……” (6-7).
In the Carroll judgment Sir Terence Etherton further highlights that proportionality is material to the exercise of S.33 discretion and indicates that a claim that has strong prospects of success and is likely to give rise to substantial damages is one in which the court should lean towards granting permission to proceed.
There is also of note, as highlighted in para 195 of the TVZ judgment, the fact that sometimes delay can improve the evidence in relation to quantum i.e. “If these claims had been brought in time, then it would have been necessary to make a prognosis, forecasting how the abuse would impact on the Claimant’s future lives. A consequence of the delay is that there is a much greater retrospective component to the assessment – it is possible to look back over 35 years of lived experiences (with, in some cases, documentary support) to see how, in fact, the abuse had an impact.”
I am currently fighting a case on behalf of a client who did not approach me until almost 19 years after she suffered abuse from a Lancashire Police officer who after arresting her, went on to seduce and in fact father a child upon her, all whilst she remained under criminal investigation. The officer’s abuse of my client caused her significant psychological harm, and indeed, rendered her the mother of a young child to whom she has had to devote a considerable proportion of her energies over the following 18 years in bringing to adulthood. Furthermore, although my client did not instigate a claim at the time of these events (2003/4) she did lodge a complaint with Lancashire Constabulary and the (then) Police watchdog the IPCC, which concluded that the officer had done wrong but which resulted only in half-baked assurances that the officer in question would be ‘prevented from attending women’s houses’ for the next 3 years. This is quite a time-capsule from another age, as today an officer committing such misdeeds would almost certainly face prison himself.
In other words, this is a claim in which there should exist written records from 2003/4 which provide clear evidence of what occurred, there is no doubt that the officer in question was employed by the Force AND there is a good reason for my client’s delay in bringing her civil action. My client has manifestly suffered psychological injury as a result of the outrageous abuse of power which she suffered, which has affected her self-esteem, confidence and ability to trust those in authority. Her delay in bringing this claim is therefore inextricably linked with the harm she has suffered.
Also of relevance to her claim is the observation of Lord Brown in A v Hoare [2008] UKHL 6 (paragraph 86) in which he favourably contrasted (for the purposes of disapplying the limitation period) a case where “A complaint has been made and recorded, and …… the accused has been convicted of the abuse complained of” with “a complaint [that] comes out of the blue with no apparent support for it……”
Navigating the Maze of Limitation Law
I have not attempted in this blog post to touch upon all of the different issues which can affect limitation periods and a person’s right to bring civil proceedings in England and Wales – indeed any attempt to do so would probably render this essay unreadable and/or counterproductive. There are very many overlapping claims in actions against the Police, which may well be operating under different limitation rules and have different caveats and exceptions applying to them, as I have briefly outlined above.
What is essential however is that people understand two things:-
The primary right to claim under the Human Rights Act expires within a single year; very many claims for personal injury will be time barred after 3 years and therefore it is essential that you act quickly in seeking legal advice if you have suffered a wrong at the hands of the Police and generally within those time frames;
However, even if you are beyond the 3rd anniversary of the incident – perhaps even several decades beyond it – it is never too late to seek expert advice from a specialist in actions against the Police such as myself.
So, in other words, act quickly in seeking to bring your claim – but never think that it must be too late, because in the right circumstances and with the right arguments, the right lawyer can find you a path through the maze of limitation, even many years after the event.
This is the story of my client Sharon who was subjected to a terrifying abuse of power when a Nottinghamshire Police Officer took up the side of a Bailiff in a minor dispute and through his aggression and arrogance escalated the event into what was, frankly, a home invasion.
Sadly, as Sharon was to learn, trauma caused by a Police abuse of power is not confined to a single day and for many years afterwards, Sharon was forced to suffer further reminders of the event, and added insult to injury, as the Officer involved in this incident went through an apparently never-ending series of Misconduct Hearings and eventually escaped with his career intact.
In the end however, justice was done through the terms of a highly significant financial settlement which I secured on Sharon’s behalf from the Police, as I will recount in this week’s blog. It is a story about the power of perseverance.
“Come On In And Help Yourself To Whatever”
The incident in question occurred on 24 April 2017. Sharon was at home alone in her house in Nottingham when she received a visit from a bailiff (High Court Enforcement Officer) who stated that he had come to collect a debt relating to a Penalty Notice.
Sharon initially panicked, as she had no means to pay and denied who she was. The sad background to her financial distress was that a business venture which she had entered into with her sister to open an Afro-Caribbean restaurant the year before had not succeeded, and Sharon had fallen into arrears with her mortgage and council tax. She had resorted to having to borrow money from friends and family and it was a very difficult and stressful time for her.
Sharon refused to allow the bailiff to enter her house – and was entirely within her rights to do so, as the debt which the bailiff was seeking to enforce did not give him a power to force entry to the house against the occupant’s wishes. However, Sharon’s car was parked up outside the house and so the bailiff clamped it. She did also offer him an old TV and computer but he said he wasn’t interested in taking these things. In a state of distress, Sharon phoned her auntie for advice.
Shortly afterwards Sharon’s auntie and male cousin arrived at the house and Sharon saw them talking to the bailiff and went outside to join them.
The bailiff explained that the debt Sharon owed was about £400. As Sharon did not have the means to pay she was content to allow her car, which was worth about £500, to be seized and she therefore began to remove personal items from her car and take them into the house.
The bailiff announced that a recovery truck was now on its way. At around this time, Sharon’s adult son also arrived (with some washing for his mum to do!)
Whilst allowing the bailiff to take possession of the car (which he seemed content with) Sharon was careful to maintain her householder’s right to refuse the bailiff entry into her home and was therefore careful whilst making trips between her car and the house with her possessions not to leave her door unlocked/open. The bailiff seemed to fully understand that Sharon was refusing him entry into the house itself, and did not attempt to press this point.
Time passed and the situation was calm, but then suddenly the bailiff began to made allegations that a parcel had been removed from his own car, which was parked nearby. Sharon’s family members – including her auntie, cousin and son were all still present outside the house at this time.
The bailiff then accused Sharon’s son of ‘keying’ his car, which had a scratch on the side.
Sharon’s son was angered by these accusations and Sharon tried to calm the situation down. She encouraged her son and male cousin to go home so as to de-escalate the situation – as she could now hear the bailiff on the phone to the Police and she was concerned that racial stereotyping might cause any Police Officers called to the scene to ‘zone in’ on the two young black men who were present. She was concerned that the Officers would ‘arrest first and ask questions later’. The lads therefore followed her advice and walked away, in the direction of some local shops. They emphatically did not go inside Sharon’s house, and the bailiff witnessed this.
Sharon now went back into her house, whilst her auntie remained outside talking to the bailiff.
Sometime later a Police car arrived.
Sharon came back outside the house and was confronted by Police Sergeant Flint, who was immediately aggressive towards her. He demanded that she allow the bailiff entry into her home so that he could ‘do his job’. Sharon stood her ground, knowing that the Officer had no power to force her to do this – and furthermore pointed out that arrangements were now in place for her vehicle to be seized. Sergeant Flint was not prepared to give up however. He now stated that the bailiff had reported a parcel stolen from his car and that he suspected it was in Sharon’s house. He threatened to ‘kick in’ Sharon’s front door if she didn’t open it for him willingly.
A second Officer (PC Elliot) now also arrived, and the Officers walked through the side gate to gain entry to the back garden of Sharon’s property and PS Flint attempted to force open the (locked) back door. Once again PS Flint threatened to ‘put through’ the door if Sharon did not immediately unlock it.
Scared and intimidated by the level of aggression from these two male Officers and concerned that Sergeant Flint would carry through his threat and then leave her with a broken door that she would not be able to afford to fix, Sharon agreed, under duress, to let the Officers (although not the bailiff) into her house.
Accordingly, she returned with the Officers to the front of her property and unlocked the front door.
Both Officers entered Sharon’s house and Sharon followed them. She was determined not to allow the bailiff entry and so closed and locked the door behind her.
However, PS Flint continued his bullying and aggression towards Sharon – now he had got what he wanted, entry into Sharon’s house, he accused Sharon of ‘imprisoning’ him and his colleague and demanded that she unlock the front door. Trying to avoid unnecessary trouble, Sharon acquiesced, but kept the key in her hand.
Unfortunately, PS Flint was still not satisfied and continued his animus towards Sharon. He now demanded that she surrender the key to her house to him, threatening her with arrest if she did not.
Sharon walked into her living room, refusing to give the Officer her key but pointing out that the door was unlocked.
Sergeant Flint then threatened that he would ‘lock up’ Sharon’s son, only increasing her distress and upset.
PS Flint then started to advance towards Sharon in a threatening way, causing her to scream, step backwards, lose her balance and fall onto the sofa. She turned her body away from the Officers in a protective manner, curling up into a ball on her knees, half on and half off the sofa.
Both of the Officers now started grabbing and pulling Sharon’s arms and it was clear that PS Flint was intent on removing the keys from Sharon’s hand.
Matters then escalated even more sickeningly as Sharon felt several blows to the back of her head which felt like punches; she was unable to see which of the Officers delivered these blows.
Understandably, Sharon couldn’t believe what was happening to her and was screaming for help. PS Flint then demanded “Give me your keys or I’ll spray you”. A fearful glance told Sharon that the Officer was not just making an idle threat, as he was holding his CS incapacitant spray cannister at the ready and Sharon, terrified, closed her eyes and put her head down.
Thankfully, PS Flint did not discharge the weapon, but he and his colleague continued to pull Sharon’s arms away from her body and eventually overpowered her, with Sergeant Flint announcing, in a terrible travesty of the truth, that Sharon was under arrest for ‘breach of the peace’.
The two men now forced Sharon to lie on her front on the living room floor with her arms behind her body; then they prised the keys out of her hand and handcuffed her tightly with her hands behind her back. Sharon could immediately feel the handcuffs cutting into her wrists.
Sharon later recounted to me how these few minutes were the most frightening she had ever experienced in her life.
With Sharon now in handcuffs, PS Flint returned to the front door of the house, opened it and invited the bailiff in with words to the effect of “Come on in and help yourself to whatever”.
It seemed that as far as Sergeant Flint was concerned, both Sharon and her home were now in his possession and control and Sharon felt disgusted and degraded by the bailiff almost literally trampling all over her rights and privacy. She heard the bailiff go upstairs and then saw him come back downstairs, go into the kitchen and start opening drawers. She was in a state of utter shock.
The bailiff then returned announcing that there was ‘nothing worth taking’ and left the house.
Finally, after about 10 minutes the Officers released Sharon from the handcuffs. She had felt like a prisoner the whole time. She had cuts and bruises and weal marks on both of her wrists and her right wrist and hand had now begun to swell up.
The Officers and the bailiff then departed, without any attempted explanation for what had happened, leaving Sharon utterly confused and humiliated. She burst into tears and then began to feel so unwell that she was concerned, as she had a history of high blood pressure, that she might be suffering a stroke. Her sister drove her straight to see her GP, and whilst she was in the waiting room, Sharon’s sister had to force a ring off her right hand because her finger had become so swollen.
The Misconduct Merry-Go Round
The actions of PS Flint and his colleague had been so outrageous that in the aftermath Sharon was left wondering whether they were actually real Officers or rather agents of the bailiff company. She contacted Nottinghamshire Professional Standard’s Department (PSD) to make a complaint.
However, it took two months before Officers from PSD came to visit Sharon and take details of what had happened. She subsequently had to attend the Police Station in July 2017 to give a full statement and found recounting the whole incident very upsetting.
Sharon quite reasonably questioned why the Police were only treating what had occurred as a ‘disciplinary’ issue. From her point of view – if PS Flint and his colleague had not been wearing uniforms they would simply face arrest and criminal charges for what they had done.
The incident had shattered Sharon’s whole confidence in the Police. She felt that her home had been violated – that she had lost her ‘safe haven’ – because of what the Officers had done. She became extremely nervous whenever she heard an unexpected knock on the door.
In December 2017, some 8 months after the incident, Sharon finally received an Investigation Report from Nottinghamshire PSD. This report contained further traumatic details that Sharon had not previously been aware of – for example PS Flint describing Sharon as ‘a fucking loony’ to the bailiff.
Although the report upheld Sharon’s complaints in many respects, its conclusion was just that both Officers should attend a misconduct meeting and undergo ‘rehabilitation’. I.E. that they had not committed gross misconduct, such as to justify a sanction of dismissal. Sharon felt such an outcome to be totally inadequate – if she had invaded the Officers’ homes and assaulted them as they had done to her, she would fully expect to have been arrested and prosecuted. She did not believe that PS Flint should be allowed to continue as a front-line Officer, fearing that he would victimise other members of the public as he had done to her.
She also noted that Nottinghamshire Police offered no apology to her, nor seemed to feel any undue remorse over the event – as if it was ‘all in a day’s work’.
Accordingly, Sharon exercised her right of appeal to the Police Watchdog, the Independent Office of Police Conduct (IOPC).
In May 2018 the IOPC produced a report which concluded that the disciplinary action proposed by Nottinghamshire Police was indeed inadequate and that PS Flint should face a misconduct hearing i.e a charge of gross misconduct which could result in his dismissal from the Force.
The misconduct hearing was fixed to take place in late 2018. During this time Sharon was suffering from significant ongoing depression and anxiety caused by the incident and the news of the misconduct hearing was very welcome to her and gave her reason to feel more confident that justice would – eventually – be done and that those institutions which govern Police conduct were treating her complaints seriously.
Unfortunately, Sharon then suffered a period of hospitalisation following what should have been a routine operation, and the misconduct hearing had to be adjourned to January 2019.
Before giving evidence at the hearing, Sharon was for the first time allowed to watch the bailiff’s body camera footage of the incident. This demonstrated that everything had pretty much occurred as Sharon had recalled in her statement to the Police. She noted how rudely PS Flint had spoken to her auntie and was shocked at how PS Flint dismissed her assertion that he had no authority to assist the bailiff in accessing her home/seizing her possessions. Furthermore, it was clear from the footage that nothing the bailiff had said to the Police Officers had suggested that her son and cousin had gone into her home rather than walking off to the local shops, further undermining any basis PS Flint might have had for wanting to enter her home. When the video footage got to the part in which she went into the house with the Officers and they began to attack her, Sharon found she simply couldn’t watch anymore. It was simply too distressing.
Sharon subsequently gave evidence for around two hours at the hearing, although it was an ordeal that felt a lot longer to her. Sergeant Flint’s advocate accused Sharon of lying – first saying that she had not in fact unlocked the front door and then accusing her of kicking the Officers when they tried to grab hold of her. It was a very unpleasant experience and Sharon felt like she was the one who was on trial. Nevertheless, she saw it through.
The misconduct case was covered by a local newspaper who published a headline reading “Policeman in fear of violence from woman after being called to house by bailiff”. This twisting of the true facts was, in effect, a succinct summary of Sergeant Flint’s ‘defence’.
After the conclusion of the hearing, Sharon received a call from the Complaint Investigator who told her that the outcome was that Sergeant Flint had been sacked.
She then commenced psychotherapy to try to address the ongoing mental injury which these events had inflicted upon her.
However, in July 2019, Sharon learned that PS Flint had launched an appeal to the Police Appeals Tribunal and in September her worst fears came true when she was informed that his appeal was successful, Sergeant Flint had – at least temporarily – been reinstated and Sharon now faced the ordeal of having to relive the whole incident again at a new misconduct hearing, completely derailing her attempts to obtain psychological closure on this horrible episode.
The second misconduct hearing took place in November 2019 and once again Sharon steeled herself and bravely gave evidence, being subjected to several hours of extensive cross-examination which felt even worse than the first time. Sharon was made to feel as if she was the wrongdoer and the lawyer acting for Sergeant Flint sought to argue that her son and cousin could have climbed through several back gardens in order to sneak into her house. Sergeant Flint seemed utterly unrepentant for his actions.
At the end of this long ordeal it seemed that justice had finally been done and Sharon’s courage and perseverance had been awarded – Sergeant Flint was sacked (again) and Sharon was told that his name would be placed on a register such that he could never serve as a Police Officer again.
Although this was a very welcome result, the hugely extended process of the complaint investigation and two misconduct hearings had played havoc with Sharon’s mental health such that she remained frightened to open her front door. She experienced panic reactions to unexpected noises and the sight of Police cars in her street. Each time she had had to relive these shocking events at the misconduct hearings she felt that her home was being violated and that she was being assaulted all over again by an utterly unrepentant Police Officer.
Unbelievably, Sharon’s ordeal was still not over as she was now informed that Sergeant Flint had once again appealed. The Misconduct Merry-Go Round would continue, and no-one, it seemed was able to remove PS Flint from his high horse.
In June 2020 Sharon was informed that PS Flint’s second appeal to the Police Appeal Tribunal had been successful and that at this time, instead of there being a third hearing to determine his fate, the Tribunal had imposed a sanction of a ‘Final Written Warning’. PS Flint was therefore now back in uniform and able to resume his career. Sharon was devastated and immediately feared repercussions from the Officer and his colleagues.
The terrible rollercoaster ride that she was on in regards to the misconduct proceedings had still not come to an end, however. Nottinghamshire Police themselves challenged the leniency of the Police Appeal Tribunal’s decision via Judicial Review, leading to the High Court overturning the Tribunal’s decision and directing that a newly convened Appeal Tribunal must reconsider the appropriate sanction.
Finally, in October 2021, the new Police Appeal Tribunal reaffirmed the decision of the last one and after four years of considerable expense and heartache to all concerned, it was determined once and for all that PS Flint would remain as a Police Officer under a ‘Final Written Warning’.
Sharon found the whole complaint process completely bewildering. She did not feel like a victim; at best she was treated as a third party witness, and at worse subject to cross examination that made her feel like a criminal. It was her complaint, but she felt largely side-lined by the opaque processes of the investigation and excluded from its decision making. Sergeant Flint was sacked twice but the Police Appeals Tribunal reinstated him both times. Furthermore, at no stage did anyone in the institution of Nottinghamshire Police offer any apology to Sharon, notwithstanding the fact that by the end of the process the Force themselves apparently wanted to see the officer sacked…
Such were Sharon’s feelings of feeling side-lined and degraded at the end of this process, that she made active plans to sell her house and move permanently away from Nottingham, her lifelong home.
I have to say that Sharon’s ordeal with the Police Complaints process echoes my own long experience of this frequently biased and uncaring regime – Police Officers facing complaints have more lives, it seems, than a cat whilst their victims are made to feel at best like mice, and at worse like rats.
Getting Justice Done
Fortunately, the Police Complaint process is not the only mechanism through which justice can be secured for the victims of Police misconduct and I was very pleased to be able to take on Sharon’s case for her in the form of a civil compensation claim against the Chief Constable of Nottinghamshire.
Whilst the Police quickly admitted liability for trespass, wrongful arrest and assault in principle, they continued to dispute the full extent of the force used against Sharon and also disputed her entitlement to aggravated or exemplary damages – notwithstanding their written acceptance that PS Flint’s actions were “high handed and oppressive.” Nottinghamshire Police admitted that Sergeant Flint had entered Sharon’s home without any lawful power to do so and that her arrest for ‘breach of the peace’ was equally unlawful – but their initial offer of settlement was a mere £3,350, which Sharon quite rightly rejected given the impact these events had had upon her life for such an extended period of time.
It proved necessary for me to institute Court proceedings against the Chief Constable, in response to which Nottinghamshire Police upped their offer to £15,000, which was again inadequate.
Drawing strength from her previous adversities, Sharon was fully prepared to go to Trial if necessary – notwithstanding her previous ordeals at the misconduct hearings – but shortly before the Trial was due to commence, in May 2022, Nottinghamshire Police backed down and agreed to pay Sharon damages in the sum of £40,000 for the misconduct of PS Flint and his colleague, as well as Sharon’s legal costs. (Read the BBC’s report here.)
It may seem bizarre that the Police would contest Sharon’s legitimate claim and cause massive expense to be incurred by both parties in terms of legal costs before caving in shortly before Trial – in a matter in which the Police themselves had apparently felt Sergeant Flint should be sacked for his actions – but such unfortunately is the normal defensive mentality, bias and reactive conduct of Police Forces when they are sued – generally putting brawn before brain and often slow to do the right thing in terms of both justice and pragmatism.
The only sour taste left in the mouth at the end of this case is the ultimate failure of Nottinghamshire Police to ever apologise; Sharon even offered them an opportunity to settle her damages for a lower sum if accompanied by an apology, but it would appear that institutional pride prevented pen from being put to paper in this regard.
Although another way of looking at this is that Sharon received 40,000 apologies from the Police, in the only language they were prepared to speak – and that is the result of her bravery and perseverance, prepared to face court room cross-examination for a third time in order to secure justice. When PS Flint went long, Sharon went longer.
The UN Convention on the Rights of the Child (UNCRC) which the UK has signed and ratified, as is only right and proper given our country’s status as both a founding member of the United Nations and wellspring of many of the Human Rights traditions which are at the core of its ethical mission, injuncts that –
“No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”.
A few months ago I blogged about the case of ST v The Chief Constable of Nottinghamshire Police which highlighted the extreme importance of safeguarding children from arrest except in cases of the utmost necessity. In this week’s blog I will be discussing one of my own cases in which, by upholding that principle, I was able to win a substantial financial settlement on behalf of a young teenager who had been wrongfully arrested.
My client, whom I will identify as ‘Harry’ for the purposes of this blog, was only 14 years old when he was arrested at home in October 2020 by PC Parker on suspicion of rape. In a subsequent witness statement made later the same day, PC Parker re-counted the explanation that he gave to Harry at the time of his arrest as follows:-
“We have received an allegation that during the summer of 2020 on two separate occasions during the same day you have engaged a 13 year old female to perform oral sex on you. Therefore I am arresting you on suspicion of 2 counts of rape. Your arrest is necessary to prevent the loss of property and to protect vulnerable people”.
Harry was then transported alone into Custody at a local Police Station where he was processed and later interviewed (the interview taking place in the presence of Harry’s father) before being released at approximately 22.30 under investigation.
The arrest necessity reasons as specified in the Custody Record were as follows:-
Allow a prompt and effective investigation;
Prevent a person causing loss or damage to property;
Protect a child or other vulnerable person.
Whilst Harry was in Custody he was required to provide his fingerprints and a DNA sample.
During Harry’s interview under caution it transpired that the event giving rise to the alleged offence had occurred several months earlier (on an unspecified date in the summer of 2020) and that the Police had not yet obtained a formal statement from the alleged victim.
It was also put to Harry that other teens had been present at the time of the alleged offence and that somebody may have videoed the incident. Under legal advice, Harry chose not to answer any of the questions put to him.
Approximately 2 weeks later, Harry’s parents received a telephone call from DS Mansfield to advise that no further action would be taken against Harry on the basis that no criminal activity had taken place.
DS Mansfield subsequently updated the investigation log with the following summary of her discussion with the alleged victim of the rape:-
“I then explained to REDACTED that the acts she had described did not amount to an offence or to criminal activity. Harry had not forced her into performing the act nor would have had any way of knowing that she did not consent, although REDACTED is not actually saying that she didn’t consent. We spoke about peer pressure and ….. gave advice on dealing with situations in the future.
In summary, this is a case of a truth and dare game that has possibly escalated. REDACTED accepts that she was not forced into committing a sexual act on Harry but felt peer pressured into doing it. This is denied by all other people present at the time. There is no evidence of any coercion or incitement, no assault and no false imprisonment. REDACTED states that there were 2 incidents. This is not supported by any other witnesses who all maintain that there was just one.
Harry and REDACTED 2 and REDACED 3 parents have all been updated with the outcome and their phones returned. The parents have been supportive and provided strong words of advice to their children about these matters. They have voiced their concerns about the way the initial report was dealt with and that their children were arrested, which they found traumatic. …. advice has been given to parents about applying to have their children’s information removed from PNC.
This case therefore is now complete. I request that the matter is filed. Although it is clear that a sexual act has taken place between two 14 year old children, there is no evidence to suggest that this was forced in any way and there was no imbalance of power or threats. Although REDACTED indicates she felt peer pressured into doing it, she also accepts that she did not verbalise this and therefore no one would have been aware. She was not assaulted or falsely imprisoned… at any time and therefore there is no evidence to support or prove any of the offences for which the children were arrested. Although it is confirmed that a recording took place, there are differing stories around how this came about and whose idea it was. It was confirmed that it was recorded on the sister’s phone, again with differing explanations as to how this came about. As stated, CPS would not criminalise children for this. I request that this matter is filed with no further action”.
The unnecessary arrest of a child
A lawful arrest requires 2 elements:-
A person’s involvement or suspected involvement or attempted involvement in the commission of a criminal offence; and
Reasonable grounds for believing that the person’s arrest is necessary.
Both elements must be satisfied, or else the person’s arrest and detention will constitute false imprisonment.
The case which I built against the police on behalf of Harry was that his arrest and detention were unlawful as not being founded upon reasonable suspicion of the commission of the alleged offence and/or because arrest was not necessary as required by Section 24 of the Police and Criminal Evidence Act 1984 (as amended by) Section 110 (4) and (5) (e) of the Serious Organised Crime and Police Act 2005).
Section 24 PACE, so far as is relevant, provides that:
Arrest without warrant: constables
(1) …
(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.
(3) …
(4) But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.
(5) The reasons are—
(a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person’s name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);
(b) correspondingly as regards the person’s address;
(c) to prevent the person in question—(i) causing physical injury to himself or any other person;
(ii) suffering physical injury;
(iii) causing loss of or damage to property;
(iv) committing an offence against public decency (subject to subsection (6)); or
(v) causing an unlawful obstruction of the highway;
(d) to protect a child or other vulnerable person from the person in question;
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.
Further guidance is provided in PACE Code G regarding certain circumstances which an arrest would be necessary. Code G 1.3 reminds Officers that the use of the power of arrest must be fully justified and Officers exercising the power should consider if the necessary objectives (listed above) can be met by other, less intrusive means. Arrest must never be used simply because it can be used.
The case which I argued on behalf of Harry was that even if, which was not admitted, the Police had on the day of Harry’s arrest sufficient evidence to amount to a reasonable suspicion that the alleged offence had been committed, then given the considerable length of time that had elapsed since the commission of that alleged offence, and the young age of the persons involved it cannot have been necessary to arrest Harry and therefore the investigation could and should have instead been progressed by means of a voluntary attendance and interview at the Police Station with Harry and his father, without arrest.
I am pleased to confirm – not least because a speedy conclusion to litigation in this case was of obvious benefit to Harry in allowing him to put these highly unpleasant events behind him and avoid the experience of a contested trial – that whilst the police initially failed to admit liability, I have now secured Court approval of a settlement in the sum of £6,000 damages for Harry, plus his legal costs, and can confirm that this settlement comes after the granting of Harry’s father’s application for deletion of his son’s Police National Computer records in relation to this wrongful arrest. The settlement damages agreed reflect the fact that Harry’s relatively short period of detention in police custody (just over 4 hours) was accompanied by significant aggravating factors such as the shock and distress caused to a 14 year old child subjected to ‘adultification’ in this way by being deprived of his liberty and processed at the Police Station as a criminal suspect, as well as the fact that Harry’s arrest took place at home in front of his parents, puncturing the sense of safety and security that any child is entitled to enjoy in that environment and the anguish and embarrassment caused by the nature of the offence for which he was arrested.
I fully accept that the allegation which the police received, and which certainly required investigation by them, was an extremely serious one – but even on the face of that allegation it should have been clear that there was no danger of immediate or continuing harm to the alleged victim and that, given the time lapse of several months since the event was said to have occurred, there were simply no reasons to trump the presumption that children should not be subjected to arrest – a presumption enshrined in the Police Codes of guidance, in the case law of England and Wales, and in the UNCRC itself. This matter could properly have been investigated by way of a voluntary interview arranged with Harry and his father, thereby preserving Harry’s dignity and minimising the distress and anxiety caused to him. Indeed, it does seem from DS Mansfield’s review of the evidence that had the police actually carried out proper enquiries with the alleged victim first, that this matter could have been dealt with without Harry being subjected to any police inquisition at all, let alone arrest and detention.
I trust that the Police Force concerned will take the lessons of this case to heart and better safeguard the welfare of children in the future. Sometimes the most important duty of those who hold vast power over others, is simply not to use that power.
The case of my client Aaron Humphries fell under the media spotlight in July of this year, when West Mercia Police exonerated themselves for the ‘accidental’ shooting of Aaron.
The incident in question occurred on 2 October 2021, when Aaron was reported by a member of the public to have what they believed was a firearm in his vehicle – it was in fact a ‘BB’ gun. Aaron, who had fallen asleep in his car, awoke to the sound of shouting and realised that his vehicle was surrounded by Police officers who were training their firearms upon him.
In a state of shock, and following commands given by the firearms squad, Aaron exited his vehicle and stood by the open driver’s door. He was holding nothing in his hands, a fact which was clearly visible to the Police.
One of the officers approached Aaron with handcuffs, whilst another approached with a taser; ‘red-dotting’ Aaron with the less lethal weapon. Aaron remained fully compliant. Then, without warning, he was shot by one of the officers (identified as Officer B) with her carbine, a lethal weapon.
The bullet from Officer B’s carbine punctured the open door of Aaron’s car, hit Aaron’s left knee and then tore through his right leg, creating entry and exit wounds. Aaron fell to the floor, bleeding and in excruciating pain, before being rushed to hospital by ambulance for emergency surgery.
Following the incident, Officer B was interviewed by the IOPC (Independent Office of Police Conduct). Her account of events was that she accidentally fired her carbine whilst holding a large, heavy shield in her left hand and trying to apply the safety catch with her right hand. Indeed, body worn video records the officer shouting “Sorry, sorry!” immediately after her weapon was discharged.
Given the seriousness of this ‘unintentional discharge’ the IOPC – quite rightly in my opinion – determined that Officer B had a case to answer for misconduct, but the subsequently convened West Mercia Police misconduct panel concluded that the officer’s conduct had not breach the Standards of Professional Behaviour and Deputy Chief Constable Julian Moss released a statement to the press announcing that there had been ‘no misconduct’, although Officer B’s authorisation to carry firearms was revoked.
At that time, I released my own statement to the press, highlighting Aaron’s disappointment at the outcome of the misconduct proceedings (which had taken place behind closed doors). The officer in question had, even on her own account, negligently discharged a lethal weapon that had left Aaron crippled and unable to continue in his occupation as a civil engineer; it was sheer luck that the ‘rogue bullet’ did not kill Aaron – or in fact, one of the Officer’s colleagues or indeed an innocent bystander. I highlighted the fact that the public should not feel comfortable at the rather self-congratulatory attitude adopted by West Mercia Police, who seemed very pleased to see their officer get off ‘scot-free’ in misconduct terms. Officer B had chosen to accept the grave burden of becoming a firearms officer and had then shot a fully compliant and non-threatening suspect as a result of a gross and totally unforced error, yet she would face absolutely no personal or professional consequences as a result – unlike my client, for whom the consequences of his horrendous injury are likely to be life-long. Once again this seems to send the message that there is one law for the Police and one law for the rest of us.
However, I am pleased to confirm that there certainly will be institutional accountability for what happened to Aaron, as I have brought the full force of the civil law to bear against West Mercia Police in the form of High Court proceedings, in which they have now admitted full liability for assault and battery. Aaron will in due course receive a significant compensation award – though he would give it all up to change the trajectory of that bullet to a harmless one.
Long experience of actions against the Police has taught me exactly which obstructionist/ delaying tactics to expect from the lawyers acting for the Police and I thought I would share here my list of seven of their most ‘deadly’ sins.
1. Disingenuous Limitation Defences
In respect of personal injury claims (whether physical or psychiatric), Court proceedings must be brought within 3 years of the incident giving rise to the injury (if the injured person is an adult); whilst claims in respect of breach of the Human Rights Act (HRA) must be brought within one year of the incident – but the Court has discretion in regards to both such causes of action to allow the claim to be brought late i.e after those ‘limitation’ deadlines, provided there is a reasonable justification for this. Nevertheless, Police solicitors will frequently hide behind limitation arguments even when they know that it is equitable for a claim to be brought ‘late’ because of extenuating circumstances – generally because of delay directly caused by the length of a complaint investigation or the psychological impact which Police failings, abuse and/or criminal proceedings have had upon a person. This is a common tactic to keep Claimants under pressure and at a procedural disadvantage – no doubt utilised by the Police in the hope that this will cause the abandonment, or at least facilitate an under-settlement, of an otherwise meritorious and legitimate claim.
In other words, the Police solicitors seek to gain an advantage over potential litigants by raising limitation even when they know that Court discretion will almost certainly follow – such as in a Human Rights claim I am currently handling on behalf of a rape victim who suffered significant failings in the handling of the criminal investigation conducted by her local Police Force. The failings in question occurred in the second half of 2019, and Court proceedings were not issued until I was instructed by the Claimant in November 2021 – around a year after expiry of the primary limitation period for a HRA claim – but this has to be seen against the context of the Claimant having had to endure first the criminal prosecution of her attacker until late 2020 and then the misconduct proceedings brought against the negligent Police officers which lasted until October 2021.
Key guidance from the Court of Appeal in limitation disputes was provided by Sir Terence Etherton MR in Carroll v Chief Constable of Greater Manchester Police [2017] EWCA Civ 1992. The Limitation Act is specifically designed to protect Defendants from the injustice of having to fight stale claims, especially those in which any witnesses the Defendant might have been able to rely upon are no longer available, or have no recollection of events and/or there are no documents to assist the court in deciding what was done or not done and why. In Carroll, Sir Terence succinctly states-
“It is therefore particularly relevant whether and to what extent the Defendant’s ability to defend the claim has been prejudiced by the lapse of time because of the absence of relevant witnesses and documents……subject to considerations of proportionality …… the Defendant only deserves to have the obligation to pay due damages removed if the passage of time has significantly diminished the opportunity to defend the claim on liability or amount……”
Police lawyers are as aware of such guidance and Court rulings as I am but nevertheless frequently use the threat of limitation defences as spoiling/ delaying tactics, even when that defence has no real merit.
2. Delay by design?
The time limits in regards to the issuing of a claim are, as indicated above, quite clear and if there is in fact no good reason for delay, the expiry of that time will extinguish the victim’s right to claim.
Unfortunately, the time frame for the Police to provide a response to a letter of claim is much woollier; the pre-action protocol on personal injury claims indicates a response should be provided to any claim within 3 months of notification, but this deadline carries no real sting in the tail. If the Police fail to adhere to it, there is no specified penalty. Instead, a prospective Claimant is simply left in the dark, not knowing what the Police’s ultimate response will be, and with his or her solicitor often unable to properly advise about the merits of a claim in the absence of key evidential documents which are in the possession of the Police.
Such delay may be unavoidable in a complex case; or it may be due to incompetence or a lack of resources within the Police legal department – but sometimes it strikes me as a deliberate tactic designed to demoralise a Claimant by dragging matters out and leading them to question themselves/ lose heart in the process and their own solicitor. It must be proactively contested, and I am often required to do this on behalf of my clients.
3. ‘Twisting’ legislation
I have long experience of the Police penchant for hiding behind legislation which wasn’t originally intended to shield them from claims, but which has in effect provided them with a defence – a key example being the provisions of Section 329 of the Criminal Justice Act 2003 which prevents anyone who has been convicted of a criminal offence from bringing a personal injury claim in respect of force used against them at the time of their arrest, unless the force used was not merely “unreasonable” but in fact “grossly disproportionate”.
The legislation in question arose from the infamous 1999 ‘Tony Martin’ case; after shooting dead a 16 year old burglar, Martin was subsequently sued by the young man’s accomplice, whom he had also shot during the incident. The purpose of the Criminal Justice Act was to give reassurance to the general public that people defending themselves, their families or their homes from attack could not be sued by criminals unless they had gone ‘over the top’. In practice, however, it is not private citizens who have repeatedly invoked the protection of the CJA 2003 to frustrate or delay claims for compensation – but rather the Police.
Take, for example, the case of my client Robert, arrested for a very minor benefit law infringement, but who had his leg shattered by a Police officer who deliberately struck him 3 times with a baton whilst he was restrained/ lying on the ground. Robert had to satisfy S.329 CJA in order to bring his claim and then satisfy the Court at Trial that the force used against him was indeed “grossly disproportionate” in order to succeed (which he eventually did, after a long drawn out saga in which the Police appealed over the precise interpretation of S.329, resulting in an eventual damages pay-out to Robert of £100,000.)
Another piece of legislation often used in an unreasonable and obstructive manner by Police lawyers is the Mental Health Act 1983. Section 139 of the MHA provides that permission from the High Court is required before any claim – such as for false imprisonment or assault and battery – can be brought in relation to any incident in which the other party claims to have been relying upon powers under the Act. This is once more a rule which was not really, or certainly not primarily, designed to protect the Police – but rather to prevent mental health practioners from being harassed by vexatious and quite possibly mentally unwell ‘litigants in person’ – but which is nevertheless now used by the Police to shield themselves from legitimate claims, even when on the facts admitted by the Police it does not properly apply – most commonly because the incident took place at a person’s home, where S.136 powers cannot by definition be lawfully used. Nevertheless, by raising the spectre of “S.139 permission” – without which any court claim no matter how meritorious is a nullity – the Police can present a Claimant with considerable obstacle of time delay and cost, including the potentially daunting prospect of an appearance before a High Court judge.
As a result, I have over the years developed an extensive track- record of successfully unlocking the Court doors which the Police seek to close by reliance on one of these two Acts.
4. Bad- faith Denials of liability
Parties are expected to admit liability in good faith when they conclude that they are liable; the overriding objective of the Civil Procedure Rules being justice at proportionate cost and the ethos of pre-litigation behaviour being a “cards on the table” approach – but very often, Police forces – especially the Metropolitan Police Service – will pursue a policy of denying liability in the face of even the strongest claim – only to accompany their ‘denial’ with a ‘without prejudice’ – i.e confidential – and ‘low-ball’ offer of settlement, once again seeking to demoralise the Claimant, undermine his or her faith in the system and then offer what seems like an ‘easy out’ rather than the apparent alternative of hotly contested litigation potentially lasting years. On other occasions the Police will ‘try on’ a denial of liability only to make a volte-face and settle when threatened with proceedings. In many such cases where liability is clear cut, the Police cause wholly unnecessary heartache and cost to all concerned by issuing ‘bogus’ denials.
People often ask me when an early Police denial is received: does this mean the case will go to Trial? The answer is often no, but the Police want you to think that. They don’t fool me.
5. Dishonourable Part 36 offers
Part 36 of the Civil Procedure Rules is a procedure whereby a litigant can make an offer to settle the claim – without making any concession of liability, as the offer must remain confidential between the parties until the conclusion of the case, unless accepted. If such an offer is not accepted within the relevant period – generally 21 days after it is made – the offeror can expect the Court to penalise the other party in legal costs should they ultimately fail to do better than that offer, either by late acceptance of its terms or being awarded a lower sum of money at Trial.
Frequently, Police lawyers will make Part 36 offers when the full value of the claim remains unknown – because medical treatment for a physical or psychological injury is ongoing, for example – thereby putting the Claimant at serious financial risk in a situation where it is simply impossible to be confident about whether the offer can be beaten or not. Unfortunately, the Court rules have no sympathy for a Claimant put in this position – so it is essential that when the Police try to take advantage of ‘known unknowns’ such as eventual medical outcome in a complex case, you have an expert lawyer on hand who has dealt with such situations before and knows how to assess and minimise the risks you face.
6. Social Media Snooping
In this ‘online’ day and age Claimants are well advised to be aware that the Police are likely to go snooping through any available social media records which exist – particularly publicly viewable posts on the Facebook and Twitter platforms etc. People making posts on social media are generally, and quite understandably, trying to present a cheerful and rosy picture of themselves to friends and acquaintances – that is a natural human impulse and the very definition of what ‘socialising’ is. People present not a false face, but often a deliberately partial picture – not wanting to burden others with their real pains, concerns, hurts and worries in an environment that expects positive vibes and ‘putting your best face forwards’. Frequently, however, I have seen Police lawyers obtain clients’ social media posts and seek to exploit them as if they were private diary entries revealing how a person ‘really’ feels and attempting to contrast this to the Claimant’s account of psychological pain and suffering arising from their mistreatment at the hands of the Police, so as to sneeringly shout – or at least snidely infer – “There’s nothing wrong with her!”
Thus the case of my client Hayley Cunningham. The solicitors acting for British Transport Police assembled a ‘dossier’ of her Facebook posts in an outrageous attempt to call her honesty into question. The Police sought to rely upon a number of posts which were all from several years after the incident and which were about her going to exercise classes. As I summarised in my 2017 blog on Haley’s case, this material was –
“Nothing out of the ordinary at all; just run-of-the-mill (or should that be treadmill?) group fitness classes, which my client had participated in, in order, partly, to help build up her social confidence and mental health after the terrible effects of her arrest, imprisonment and prosecution. The Police were, in my opinion, quite unscrupulously, now trying to use these ‘posts’ to suggest that Hayley’s dizziness at the top of the railway station steps must have been due to drunkenness rather than constitutional/ health reasons – as if her ability to participate in a planned exercise class (‘on the flat’ in a gymnasium) years later had any relevance to how she was after climbing 160 stairs years before! It was palbable nonsense – but showed the lengths the Police were prepared to go to in order to frustrate Hayley ’s claim, and demoralise her.”
I am pleased to report that I was, ultimately, able to get the ‘social media’ evidence thrown out at a pre- trial hearing before a Judge who agreed with me that it was irrelevant to the case. Nevertheless however, Hayley had to experience this unwarranted intrusion into her private and social life and I raise this as an example to caution any potential litigant against the Police that they could also face such unscrupulous tactics.
7. Drip- feeding Disclosure
This is another spin on the delaying tactic I have described above, whereby Police lawyers seek to frustrate the Claimant, undermine their will to continue – and, perhaps, undermine their faith in their own solicitor – by responding to the Claim but not providing all of the evidential documentation which they should, leading the Claimant and his lawyer to have to pursue them for documents such as video footage, officer’s complaint histories, officer’s notebook entries, investigation logs etc which could and should have been provided ‘up front’. Often the Police legal team will blame delays within data disclosure units, adopting a frustratingly passive- aggressive stance. A variant of this tactic is where the Police actually admit liability BUT fail to provide any documentation at all – arguing that body camera footage and/or officer statements are no longer relevant for disclosure because ‘the game is up’ and liability is admitted. Of course, the fact remains that admitting an arrest was unlawful does not necessarily mean that all of a Claimant’s allegations about the outrageous nature of that arrest, the derogatory or abusive attitude of the officers or the level of force used is admitted… Very often the Police will attempt to hide their own dirty laundry behind an early admission of liability in the hope that disclosure will then not be pursued.
Fortunately, I am well versed in this as well as the delaying tactic and can advise clients how to circumvent it by utilising Court proceedings – including the efficient mechanism of a pre-action disclosure application which allows a potential party to a claim to obtain an order requiring the other party to produce the documents which are of key relevance to the merits of the claim.
All of these tactics are a reason why you need a highly experienced lawyer fighting your claim who knows them well, and better yet, knows how to beat them. Indeed, I relish getting to grips with the Police on all of these battlefields. If you believe you have been wronged by the Police don’t hesitate to contact me for expert advice and representation.
Some of the wrongful arrest claims which I handle arise directly from Police malice i.e the deliberate fabrication of falsehoods in order to justify a person’s arrest, very commonly to cover-up the fact that an officer has over-stepped the mark, lost his temper and assaulted a member of the public (whom he now accuses of having ‘thrown the first punch’).
But other wrongful arrests arise from more indirect acts of Police misconduct – including sloppy investigations, mistaken identity and prejudice/ bias on the part of the Police – all three of which factors I believe played a part in a case which I have recently successfully concluded against Thames Valley Police (TVP).
My client, whom I will identify as Adam Butler, lived in Oxford and had recently fallen out with his brother Jack over a relatively innocuous argument involving an x-box.
Adam had a past criminal conviction for which he had served prison time, but was now very much on the straight and narrow.
On 23 December 2020 Thames Valley Police opened an incident log in relation to a reported offence of harassment, said to have been committed in the Oxfordshire village of Kennington, as follows-
Caller noticed a male riding his bike passed her house multiple times a day and stopping outside the bushes in her house back in October. She said she had noticed him looking up at her window and staring, she said to him “Is everything ok?” The male said “Yes” shrugged his shoulders and carried on standing there…
This then escalated to the male dropping a Christmas card off at the house at the end of November – Caller didn’t think this was serious until this point and seeked advice from her room mates about the card and they stated that this was very weird. The Christmas card said “To someone special, Merry Christmas and a happy new year”. This was not signed off…The next day she saw the male walk passed her drive and stop outside the bushes, she looked out of the window and he gestured that she open the window which she did and the male asked her if she got his card, she said thank you it was very kind of you and closed the window.
She then didn’t see him for a while…Then today she has received a letter from the male, she was sat at the window and saw him walk to the door and then walk away and then get on his scooter and ride away. She opened the letter and it said-
FOR THE ATTRACTIVE SEXY GIRL THAT LIVES UPSTAIRS XXX – TO WHOM IT CONCERNS, I HOPE YOU DON’T GET OFFENDED BY THIS AND IM REALLY SORRY IF YOU DO. HOWEVER ME AND MY FIANCEE HAS GOT A PROPOSAL FOR YOU IF YOU WOULD LIKE AND ARE WILLING ME AND MY FIANCEE WILL PAY YOU £65 ON THE DAY TO HAVE SEX WITH ME WHILST RECORDED. AND ANOTHER £65 WITH MY FIANCEE TO COME DOWN AND HAVE A THREESOME WITH US. IF YOU WERE WILLING CAN YOU PLEASE SEND SOME PICS OF YOURSELF AND WE WILL DO THE SAME WE LOOK FORWARD TO HEARING FROM YOU. KIND REGARDS JACK BUTLER.
PS CAN YOU PLEASE IF POSSIBLE SEND ME THE REPLY ON FACEBOOK OR SNAPCHAT.
The ‘proposal’ was then signed off, with the author providing his ‘Snapchat’ and ‘Facebook’ addresses, in anticipation of the victim making contact with him. Both of these addresses were names which were variations of ‘Jack Butler’.
Some might say that this was not necessarily a case to tax the brain of Sherlock Holmes or Hercule Poirot, or dare I say it Inspector Morse – the perpetrator of the harassment clearly having identified himself and signed his name at the end of the letter.
My client’s brother Jack was quite properly identified as the suspect within a few hours of the crime being reported – but the Police then went on to ‘overthink’ the case and identified Adam as an additional suspect, because of his previous criminal record and the fact that they believed that Adam lived in closer proximity to the victim’s house. This was despite the fact that they had Jack Butler’s signature and his correct social media addresses. Furthermore, the Police based their assumption of proximity on a mistaken belief that Adam lived in Kennington – the village where the incident occurred – whereas in fact he lived in Headington, some 5 miles away on the other side of Oxford.
Yet further, the Police were soon in possession of a photograph of the offender – obtained from the victim’s Ring doorbell – and it was noted that this appeared to match the Facebook profile photograph of my client’s brother. The two brothers were not twins, and facially looked quite distinct; Adam was of chubbier build and did not have a slim face – the victim having notably described the offender’s face as appearing ‘very slim and sunken’ in a statement she made the day before Adam’s arrest. Furthermore, Adam had a distinctive gap in his teeth, where his brother did not.
Nevertheless, on 23 December, two officers visited Adam’s flat and and questioned him as to whether he had a girlfriend (which he didn’t) and whether he knew anyone who lived in Kennington . The female officer of the pair explained about the offensive letter which had been posted and asked to see Adam’s diary so she could compare his handwriting to that on the letter. Adam was happy to fully comply with all of these enquiries/ requests. When the female officer handed Adam’s diary back to him she reassured him “You don’t have anything to worry about.”
Sadly, Adam was to receive another visit to his flat the following day, Christmas Eve, and it wasn’t from Santa Claus but rather more Police officers – come this time to arrest him.
The group of officers who turned up to arrest Adam on 24 December were different and didn’t appear to know anything about the visit their colleagues had made the day before. Adam was led out of his house, had his phone confiscated and was transported to Abingdon Police Station. He was booked into custody, searched and incarcerated in a cell – the last place anyone wants to be on Christmas Eve. He was extremely stressed by these unfolding events and, as he suffers from mental health issues – including depression and previous self harm – asked for his support worker to be notified. Adam knew he was entirely innocent and couldn’t understand why he was being arrested.
Eventually, around 3 hours later, Adam was released – without having been interviewed. It seems a senior officer had looked at the Ring doorbell photograph of the offender and realised that this obviously wasn’t Adam. The investigation proceeded in regards to Jack only – who, indeed, subsequently admitted his guilt for the offence (which it should have been patently obvious from the outset he had committed).
It was quite clear that only one of the Butler brothers should ever have been arrested on the known facts – Jack – but the Police appear to have followed a lazy ‘arrest the usual suspects’ approach and to have treated my client as a suspect largely if not solely because of his historical criminal record, which had nothing specifically to do with the offence under investigation. Entirely unnecessary suffering was caused to Adam as a result and he quite rightly sought compensation from Thames Valley Police.
Adam was initially represented in bringing his claim by a criminal defence solicitor (whom I highly respect) who subsequently referred Adam to myself when the Police made it clear they were going to dispute liability for wrongful arrest.
TVP continued to argue that they had the requisite ‘reasonable suspicion’ to arrest Adam, so I issued Court proceedings on Adam’s behalf and shortly afterwards was able to settle Adam’s claim on terms which included a very satisfactory financial settlement but, more importantly, gave Adam a sense that the scales of justice which had been tipped against him by sloppy Policing and prejudice arising from his past criminal record could be rebalanced and the system that had wronged him could be made to work in his favour, and deliver a fair and proper outcome.
I will let Adam have the final word in this blog, in the terms of the kind review which he provided at the end of his case-
I came across Iain Gould as he was highly recommended by another solicitor…He is very understanding, honest, respectful and works very hard to get the best possible outcome…I would highly recommend working with Iain Gould.
The fundamental importance of actions against the Police and other State authorities in maintaining our civil liberties and the good health of our Democratic institutions is strikingly demonstrated by the fact that the area of law in which I specialise, is one of the few remaining areas of civil law in which Claimants generally have a right to elect for Trial before Judge and Jury, rather than by Judge alone.
Whilst even the most serious accident claims (valued at a million pounds or more) are tried without a Jury, the right to a Jury Trial in a limited number of other civil actions is preserved in Section 66 of the County Courts Act 1984 which provides as follows –
(2)In all other proceedings in the county court the trial shall be without a jury unless the court otherwise orders on an application made in that behalf by any party to the proceedings in such manner and within such time before the trial as may be prescribed.
(3)Where, on any such application, the court is satisfied that there is in issue—
(a)a charge of fraud against the party making the application; or
(b)a claim in respect of … malicious prosecution or false imprisonment; or
(c)any question or issue of a kind prescribed for the purposes of this paragraph,
the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.
Thus, very many claims against the Police (or other state bodies) which involve false imprisonment (i.e. wrongful arrest) or malicious prosecution fall within this exception to the general rule pertaining to civil Trials and entitle Claimants to elect for Trial by Jury.
Whilst such a Claimant is certainly not obliged to choose Trial by Judge and Jury – they may well decide to proceed to Trial before a Judge alone for a variety of reasons, in which case they need do nothing – the importance of a Trial by Jury in cases involving allegations of the abuse of power by State agents against private citizens is well established. The Police, after all, police our streets – so perhaps it is appropriate to have issues of fact decided by those who spend more time on those streets than do our often “ivory-towered” judiciary.
In Ward v Chief Constable of West Midlands Police Hobhouse LJ observed:
‘Trials such as this are conducted with the assistance of the jury because of the nature of the allegations made and the issues raised and the desirability in the interests of justice not only being done but being seen to be done of having a jury to decide disputed issues of facts’.
In Darragh v Chief Constable of Thames Valley Police Sir Patrick Russell stated:
‘There is no doubt whatever that some of the issues in this case would be best tried by a jury, for example, allegations of police brutality and, generally, of police misconduct. Those issues are eminently suitable for the decision of a jury and are frequently within the province of the jury, not only in a civil court but more particularly in the criminal courts’.
Most authoritatively of all, Woolf MR said the following in the leading case on damages in civil claims against the police, Thompson and Hsu v Commissioner of Police for the Metropolis [1998]:
‘There are arguments which can be advanced to justify the retention of the use of juries in this area of litigation. Very difficult issues of credibility will often have to be resolved. It is desirable for these to be determined by the plaintiff’s fellow citizens rather than judges, who like the police are concerned in maintaining law and order. Similarly the jury because of their composition, are a body which is peculiarly suited to make the final assessment of damages, including deciding whether aggravated or exemplary damages are called for in this area of litigation and for the jury to have these important tasks is an important safeguard of the liberty of the individual citizen’.
However, the fact that a Trial by Jury is a fundamental constitutional right to Claimants in such cases, does not necessarily prevent Defendant Chief Constables from seeking to restrict that right. Indeed, twice this year I have had to secure that right for my clients at Court hearings in two separate claims against the police in which our application for Trial by Jury was either actively contested by the Police, or obstructively not consented to.
In the first case, which involved a claim brought by a young black teenager against the Metropolitan Police in regards to an unlawful stop and search, the police lawyers sought to play what was – in my opinion – a cynical game of semantics in seeking to argue that the Claimant was not entitled to a Jury Trial because his claim in false imprisonment was not “in issue” because liability had been admitted. This was a case in which the police had accepted that the stop/search had been carried out in an unlawful manner and therefore the Claimant was entitled to compensation – but the amount of that compensation was very much in dispute with the parties contending for vastly different sums and the police denying several of my client’s allegations regarding such serious matters as the use of force, the extent of injury and the attitude and behaviour of the officers involved – including whether their actions were motivated by racial prejudice.
The Metropolitan Police Service were nevertheless seeking to argue that because they had conceded liability the claim was no longer ‘in issue’ – an entirely incorrect argument in my opinion, given the remaining fundamental disputes about the factual circumstances in which that false imprisonment occurred (as outlined above) which would have a real and significant bearing on the level and type of damages to which my client was entitled.
In the second case, which involved a claim brought against Avon & Somerset Constabulary, the Police failed to recognise and agree my client’s right to jury trial by consenting to what should have been a straightforward application (there being no dispute that there was in issue a claim for false imprisonment and malicious prosecution) and instead required us to attend a hearing and persuade a judge that Section 66 of the County Courts Act did apply. It was quite clear that the Police hoped the judge would rule otherwise; they adopted a position of passive aggressive ‘neutrality’ rather than doing the right thing and agreeing the application to save everybody time and costs.
Ultimately, the (failed) attempts by two different Police Forces to dispute/ delay the citizens’ right to Jury Trial in these matters, and thereby allow the Chief Constable the comfort of not being scrutinized by a Jury of the Claimant’s peers, speaks volumes about the importance and need for maintenance of this right and tradition.
Democracy, as they say, dies in darkness – whereas juries shine a light: the light of public scrutiny upon Police misconduct.
It is a terrible thing for any parent to be falsely accused of harming their child but the trauma of that false accusation can only be multiplied if it is accompanied by a wrongful arrest and separation from your child in the early hours of Christmas Day itself – which is, sadly, exactly what befell my client Karen at the hands of Merseyside Police Officers on 25 December 2021.
Karen is employed as a full-time carer, working with elderly and disabled people. She is a single mother and lives with her 9-year-old son.
She had worked Christmas Eve, had Christmas Day off, and was due to return to work on Boxing Day.
The incident arose from concerns that Karen had about her son; she was worried that he was being bullied at school by another boy who always seemed to be shoving/picking on him.
She had reported the matter to the school but they had seemed disinterested, trotting out the old line of ‘boys will be boys’.
On Christmas Eve, Karen’s son had been out with friends. He had marks around his neck which Karen was concerned could have been caused by another boy (although her son denied this). Karen therefore contacted the Police.
At approximately 3.30am on 25 December two officers of Merseyside Police, including PC Percival, attended at Karen’s home and spoke to her and her son (recording their interactions on their body worn cameras).
The subsequent Complaint Investigation Report arising from this incident states that it was clear from the body camera footage that the Officers believed the marks to Karen’s son’s neck to be some sort of rash rather than as a result of an assault. Karen’s son told the officers that his neck had been itching for a number of days and had worsened. The Complaint Investigation Report goes on as follows –
He [Karen’s son] explained that his school were aware that his teacher had provided him with an ice pack and suggested that it may have been caused by washing powder. [Karen’s son] was articulate and provided credible responses to all questions asked of him. There was no indication from his responses that suggested any assault and all he displayed was frustration at the fact that his neck was sore. There was nothing to indicate that [Karen] had caused any injury and it was evident that she was concerned about the marks to her son’s neck.
Indeed, PC Percival now sought to re-assure Karen that the marks on her son’s neck were like eczema and the advice by the Officers was that Karen should take her son to a Walk-in-Centre for treatment. The Officers then left the address stating that they would seek advice from their Supervisor, having gathered all the necessary information.
However, around an hour later the two Officers returned to Karen’s house and PC Percival explained to Karen that they had spoken to their Sergeant and had concerns about her son owing to the fact that Karen appeared to be intoxicated at the time of their first visit and therefore not in a position to care for him. Karen was understandably upset by this and asked to be left alone and for the Officers to leave her home. Karen started to shout at the Officers, whereupon PC Percival handcuffed her. This action further escalated Karen’s anger and the Officers then informed Karen that she was now under arrest to prevent a breach of the peace and she was taken outside to a Police van, with the Police arranging for Karen’s son to be taken to his grandmother’s house.
Meanwhile PC Percival spoke to Karen, who was now in the rear ‘cage’ section of the van and told her that if she calmed down and cooperated, she could be de-arrested. Karen, who was traumatised at being handcuffed in her home and separated from her young son on Christmas Day, angrily replied that she would be making a complaint and demanded the Officer’s name and number.
A mere matter of minutes later, PC Percival informed Karen that she was now also under arrest on suspicion of a Section 47 assault occasioning actual bodily harm upon her son (i.e in relation to the marks upon his neck).
Karen was utterly devastated by this false accusation, which appeared to have come completely out of the blue – and quite possibly in response to her threat of a complaint against the Officers for their initial arrest of her (for breach of the peace).
As the Complaint Report later detailed –
[Karen] was angered by the presence of the Officers and the focus of her anger was directed at them and no one else. It seems that she was arrested for not engaging rather than an imminent risk of violence.
What is difficult to reconcile is why [Karen] was arrested for assault when the evidence had not changed, and the Officers believed it was a rash, judging by the BWV [Body Worn Video]…it would seem that the further arrest was a reaction to the fact that [Karen] would not accept the offer of being de-arrested.
The Complaint Investigation Report also conceded that my client’s arrest for breach of the peace was deeply flawed in that the Officers at the time clearly considered she could be more or less immediately de-arrested; her anger was directed at the Police Officers and no one else and therefore once the Officers left, the ‘breach’ would have been over. Karen should have been released at this point regardless – with any concerns for her son’s welfare because of her alleged ‘intoxication’ having been addressed by the involvement of his grandparents – but her arrest was instead not only continued but now escalated to include accusations of her having physically assaulted her own son.
The Complaint Investigation therefore quite rightly concluded that PC Percival’s conduct was unacceptable.
Because of this unacceptable conduct, Karen had to undergo the deeply traumatising experience of spending Christmas Day not only separated from her young son but in Police Custody (for almost 12 hours) and falsely accused of having harmed him, when all she had done was to reach out to the Police for help, out of concern for his welfare.
On 7 January 2022 my client was fully exonerated when she was informed that there would be no further action against her in respect of any offences arising from this matter.
It is understandable that the Police have to err on the side of caution when it comes to protecting minors, but the truth of the matter here is that at the time of their initial visit the Officers appeared entirely satisfied that there was nothing sinister about the marks to Karen’s son’s neck – and indeed sought to reassure her that it was indeed only a rash. For the Officers to then twist these facts so as to justify their arrest and continued detention of my client, when she became angered at their accusation that she could not look after her son because she was intoxicated, was in my opinion a wretched and despicable abuse of power and one which risked causing deep mental scars to Karen and her young son, had the false accusation not been fairly swiftly dropped.
Karen instructed me and I pursued a claim on her behalf against Merseyside Police in respect of her wrongful arrest, in regards to which the Police admitted liability and have now paid Karen a five- figure damages settlement, plus her legal costs.
Barely a day goes by at the moment without a new story about yet another Police Officer charged with sexual offences – generally the targeting of vulnerable women, often domestic violence victims, whom the Officer has come into contact with and whose suffering he seeks to exploit for his own sexual gratification. This form of abuse of power has now been revealed to be frankly endemic in our Police Forces and all too many women who call 999 risk inviting emergencies into their lives in the form of abusive/exploitative Officers.
One such victim of Police sexual harassment was my client Laura, whose case I have recently concluded.
In late 2020 Laura had broken up with her current partner, Peter. Unlike some of Laura’s previous partners, her current partner was not physically abusive to her, but he had become unfaithful, and he had posted malicious content about Laura on social media. Laura has a past history of suffering domestic violence having been physically abused by one former partner and raped by another. She also suffers from the chronic pain condition fibromyalgia and has had past mental health difficulties including anorexia, depression, and anxiety.
The Police had been contacted to come and collect Peter’s belongings from Laura’s flat as she was scared of meeting him again. As a result, Laura was contacted by PC Long of Suffolk Constabulary, a married officer of some 22 years Police service. PC Long was made aware of Laura’s vulnerability, including that she had experienced suicidal thoughts in the past.
Over the next few weeks PC Long exchanged emails about her matter. Laura never met PC Long in person and initially found him polite and professional in his dealings with her. In February 2021, however, PC Long provided his work mobile phone number and suggested that the two of them communicate by this form; thereafter, his messages to Laura became increasingly personal, suggestive and ‘flirtatious’. The messages would imply that he was often in the vicinity of her home and could visit her for “a cuppa”. The officer was aware that several of his text message exchanges with Laura took place whilst she was drinking alcohol. One such message from PC Long suggested that he “Fingers crossed might be lucky enough to meet u sometime to see ur cheeky and maybe wild side?” Further references in the officer’s messages to having “fun” with Laura but not wanting anything “serious” made it clear that he was seeking a sexual encounter.
Laura became extremely distressed and worried by this tirade of messages from an Officer who was grossly abusing his position as a Public Servant and treating her as a sex object. She contacted the Police about what was happening, and the text messages immediately stopped.
PC Long was then investigated by the IOPC and found guilty of gross misconduct at a hearing in January 2022 – but was punished only with a (final) written warning and he therefore remains at the present time a serving Police Officer. This was despite the misconduct panel finding that PC Long had attempted to establish a sexual or improper personal relationship with Laura, who was clearly vulnerable to his abuse of trust and power.
I have now pursued a claim for harassment/ misfeasance in public office on behalf of Laura against Suffolk Constabulary, and she has been awarded £10,000 damages plus her legal costs.
In regard to the original purpose for which the Police had made contact with Laura, the collection of her ex-partner’s belongings – this task was eventually delegated to a female Police Officer. Of course, it should never have come to this; it is outrageous that Laura, like so many other women have been put in the position of being preyed upon for sex by male Police Officers after turning to the Police for help.
Laura’s mental health was improving up until the time that she had contact from PC Long, but the Officer’s behaviour plunged her back into depression to such an extent that she became tearful most days and felt almost housebound by her fear and mistrust of men.
Sadly, the lack of serious punishment for PC Long despite the misconduct findings against him is not an outlier: Freedom of Information requests widely reported upon in October 2021 revealed that 52% of Metropolitan Police officers (43 out of 83) found guilty of sexual misconduct between 2016-20 were allowed to keep their jobs, a pattern which repeats, sometimes to an even more extreme degree, across the other Forces of England and Wales.
What will it take for this form of despicable abuse of power to be rooted out of our Police Forces? Do we need to go to the extent of having all-female Police units dedicated to dealing with domestic violence victims because their male colleagues simply cannot be trusted not to take advantage of vulnerable women? That is the conclusion that seems to present itself, if those with the power to drive such behaviour out of the Police Service – by sending a message of ‘one strike and you’re out’ to male officers generally – decline to take that opportunity.
Delays and disruptions to many people’s summer holiday plans have been in the news recently as climate change, post-Brexit borders, and the post-Covid travel industry’s problems combine to create backlogs, queues and cancellations at airports, railway stations and ferry terminals.
A far worse experience than lost luggage or hours of waiting afflicted my client Tom Smith, however, when he was subjected to an unlawful arrest at Manchester Airport earlier this year.
One evening in April 2022, Tom flew into Manchester Airport from Amsterdam after a short break with a group of friends.
Having passed through passport control, Tom was approached by several police officers, who advised he was under arrest and handcuffed his hands behind his back. Tom complained that the handcuffs were too tight but was ignored.
Humiliatingly, the arrest took place in front of Tom’s friends, and one of the officers took it upon himself to inform Tom’s friends that Tom was being arrested for failing to surrender at court.
Tom was then led through the airport. Adding to his distress, a number of fellow passengers recorded his arrest and escort through the airport on their phones; he couldn’t believe what was happening to him and was very conscious that everyone witnessing this – both strangers and his friends – must be thinking “There’s no smoke without fire”. He was worried that his face would be all over social media, having been made subject to such a public ‘parade of shame’. Tom was then transported to Cheadle Hulme Police Station.
Tom had never previously been arrested and was shocked and frightened by events. He had recently received a fine for speeding and could only think that his arrest must relate to that.
At Cheadle Hulme Police Station, Tom established that he had been arrested in respect of an outstanding warrant for failing to attend Tameside Magistrates’ Court earlier that month. Tom sought to explain that this must be a mistake, but to no avail.
Tom was processed and searched and then advised he would be detained overnight and produced before the court the next day.
After several hours in custody, Tom was taken for fingerprints whereupon it was established that there had indeed been a mistake; the custody record contains the following entry at 4.18 a.m-
DP [Detained Person] has now been printed and is no trace on the fingerprint system. It appears the wrong male has been arrested. To be released asap. Mancro will be informed to re-circulate the wanted male.
Eventually, in the early hours of the morning, Tom was released from custody having been held against his will for nearly 5 traumatic hours.
Tom found his experience in custody extremely distressing. I am now in the processing of commissioning medical evidence to assess the full extent of the psychiatric impact this incident has had upon him; there is no doubt however that it has caused Tom great anxiety and embarrassment in both his personal and professional lives: his relationship with his girlfriend was strained, and he felt very stressed about having to tell his boss that he had been arrested- albeit quite incorrectly. I will be seeking a significant compensation award from Greater Manchester Police for what appears to have been a gross error on their part, mixing up Tom’s data/ identity with that of the ‘real’ wanted man.
This is far from being the first “mistaken identity” arrest at an airport in which I have been instructed – despite the deeply ironic fact that airports are the one location where people habitually carry their passports and thus where their real identity is very easy to ascertain. If you or anyone you know has suffered in a similar fashion, please contact me for advice and expert representation.
My client’s name has been changed.
Update
I am pleased to confirm that, after the institution of Court proceedings, Greater Manchester Police agreed an out-of-court settlement of £10,000 together with Tom’s legal fees.
I am pleased today to provide an update on a case which I first blogged about in December 2020, regarding Police abuse of ‘Coronavirus powers’ during the early days of the Lockdown. In that blog, as the case was ongoing, I identified my client only by the pseudonym of “Dwight”. In this blog I will refer to him by his real name of Desmond Acquah.
Desmond is a Black man and a British Army veteran who gave almost 10 years of service to this country, including a tour of duty in Afghanistan, service which ultimately saw him being discharged from the army on medical grounds.
At the beginning of the Coronavirus Lockdown in March 2020, Desmond was continuing to serve the British public at risk of his health as a key worker on the railway network, at a time of surging Covid infections.
At around 2 am on 26 April 2020, Desmond was just arriving home in Portsmouth after a 12-hour shift at work, and wanted nothing more than to check on the welfare of his pregnant partner, and then get his head down and sleep.
However, as he drew close to his home, Desmond noticed a marked Police van begin to follow his BMW car.
Desmond pulled up in his normal parking spot near his flat, and the van pulled up behind him.
Two Officers of Hampshire Constabulary, including PC Thisby, then alighted from the van and approached Desmond’s car.
They demanded Desmond’s name and he asked them, “Why, what’s going on?”
PC Thisby replied, “Well because you’re out and about at 2 o’clock in the morning, there are restrictions in place on movement at the moment because of Coronavirus and so I am just asking for your details”.
Desmond explained that he was a key worker and had just come from work.
PC Thisby then asserted that he needed Desmond’s details to check that the Claimant was a key worker and that if he refused Desmond could be arrested for contravening the Coronavirus rules. This was nonsensical as there was no ‘database’ of key workers that the Police had access to, and Desmond was simply not under any obligation to provide his name.
Desmond considered the Officer’s request unreasonable and intimidatory. He explained that he had just come from work on the railways, he was tired and wanted to go to bed. He removed from his car a small ruck sack, his work clothes, boots, and a coffee canister.
PC Thisby then threatened to arrest Desmond for failing to provide his details under the “Health Protection Coronavirus Restrictions Regulations 2020”.
Desmond felt harassed and decided to call his manager for assistance. At this, PC Thisby grabbed Desmond’s jacket/right arm and said, “Put your phone down. You’re under arrest”.
Desmond protested “For what? You shouldn’t be touching me” to which PC Thisby replied, “For failing to provide your details”.
Both Officers now forcibly restrained Desmond and pushed him up against a wall. The second Officer applied handcuffs to the Claimant’s right wrist.
Desmond was incredulous and immediately said “Take the handcuff off, I will give you my name”. The second Officer said “Just give us your name first” to which Desmond advised his name and again requested the Officers to remove the handcuffs. The Officers agreed and the handcuff was now removed. Desmond pulled away and accused the Officers of harassment.
However, PC Thisby persisted in asking for Desmond’s “details” and demanded his address.
Desmond was now highly agitated by reason of the Officers’ actions and the conversation continued as follows:
Desmond: “You have got no fucking reason. I am going to take your fucking number, you have got no fucking reason to arrest me. I just fucking finished work”.
PC Thisby: “Do you want to get arrested?”
Desmond: “Arrested for what? I’ve been up since fucking 7, I have done a fucking 12 hour shift”.
PC Thisby: “Desmond, I have warning you now if you carry on like that you will be nicked for a Public Order Offence”.
Desmond: “Well that’s what you wanted ain’t it?”
PC Thisby: “Say again”
Desmond: “I just driving from work, I am going to fucking….”
PC Thisby: “Calm down”.
Desmond: “Calm down, what you say fucking calm down for? What cos you’re a Police Officer you think you’re what, the law. You’re a fucking citizen yourself. I just fucking finished 12-hour shift, I am tired, I want to go and get my head down”.
PC Thisby: “Desmond give me the rest of your details now or you are definitely going to be arrested”.
Desmond: “What, I have given you my name, what else?”
PC Thisby: “Okay, let’s have your name, your address and your contact details because you are going to be reported for breaking the Coronavirus rules as I explained to you”.
Desmond: “No, what, what am I speaking Swahili to you?”
PC Thisby: “Don’t spit at me when you are shouting”.
Desmond: “I am not spitting at you”.
PC Thisby: “You are shouting and you are spitting. Give me your details so I can report you.”
Desmond: “I have just fucking finished work, what part of that don’t you understand? I have just fucking finished working”.
At this, Desmond went to pick up his belongings and walk away, but the conversation continued:
PC Thisby: “Desmond don’t walk away from me”.
Desmond: “Breaking what Coronavirus? What am I supposed to do, fly to my bedroom after work?”
PC Thisby: “Right you’re nicked. Caution still applies”.
Desmond: “What? What applies?”
PC Thisby: “You’re under arrest”.
Desmond: “For what?”
PC Thisby: “For not giving me your details under the Coronavirus rules”.
Desmond: “I said I have given you my details, I am going to record this because this is fucking harassment”.
Desmond now attempted to record events on his phone, but the officer sought to take the phone from him. Desmond backed away into the street and PC Thisby called for backup.
PC Thisby now escalated matters further by drawing his PAVA spray cannister, pointing it directly at Desmond and ordering him to get down on the ground.
Desmond was incredulous and protested “Are you kidding me?”
However, under duress, Desmond now turned to face the wall with his arms raised. PC Thisby again ordered Desmond to get down onto the ground and to put his arms behind his back, as if he was dealing with a suspected bank robber, rather than a tired key worker who was just trying to get home.
Desmond accordingly dropped to his knees and put his hands behind his back and was then handcuffed to the rear by the second Officer.
Desmond again asserted that this was harassment, but now confirmed his home address.
Unfortunately, Desmond’s ordeal still wasn’t over. He got to his feet, whereupon PC Thisby took hold of Desmond’s right arm and announced that he was to be searched because the Officer wanted to establish Desmond’s identification. Desmond protested and accused the Officer of being racist.
PC Thisby now pushed Desmond towards the wall with both hands and held him against the wall. Desmond again confirmed his name and address and said, “You started fucking roughing me up. For what, doing a 12-hour shift. I just finished work”. The second Officer now began to search Desmond.
Two more Officers, a male and a female now arrived, and began to participate in Desmond’s continued unlawful detention.
Desmond made reference to his work belongings nearby and continued to remonstrate as to the Police action against him, to which the fourth Officer shouted at Desmond, “At the moment there is a virus going around killing thousands of people so shut up and stop behaving like this”. Desmond replied, “No, don’t tell me to shut up….” But the fourth Officer continued harangued him, saying, “You’re behaving like a fucking idiot at the moment, shut up”.
Both PC Thisby and the fourth Officer continued to manhandle Desmond and the conversation continued as follows:
PC Thisby: “Desmond we gave you every single opportunity”.
Desmond: “You gave me what opportunity?”.
PC Thisby: “To try and get your details”.
Desmond: “What opportunity, what opportunity? I have just done a fucking 12-hour shift”.
PC Thisby: “No one is disputing that Desmond”.
Desmond: “Why are you pushing me against the wall”.
PC Thisby now lost his temper and shouted at Desmond, “Because I don’t want you spitting in my face when you’re shouting, you stupid man”.
PC Thisby now directed that Desmond be put in the back of a Police van and he was forcibly marched, bent over, to the van, with Officers continuing to manhandle him.
Desmond felt as if he was going to pass out and asked the Officers to allow him to stand up straight and to then sit down. The Officers advised that he would be allowed to stand up but not sit.
A fifth officer now attended and spoke to Desmond. Desmond again advised his name, that he worked on the railways and that his arrest was unlawful. He was highly agitated and distressed.
PC Thisby directed the second Officer to continue his search of Desmond. Whilst Desmond was being searched, PC Thisby radioed the control room and advised that he made an arrest for a Public Order offence and resist arrest. Desmond overheard and immediately challenged this, saying “What arrest, a Public Order offence, for what, for what?”. He received no explanation.
PC Thisby now stated to Desmond that if he ‘calmed down’ he would be released. Desmond remained highly distressed as a result of what the officers had done to him, convinced that he had been adversely treated because of this race and replied, “You don’t understand, you haven’t even said sorry, do you know what I mean. Why do I deserve this treatment?”
PC Thisby then resorted to seeking advice from his Sergeant, and made the following radio call:
“Alright Serg, I need advice. So we stopped the car, guy got out, he stopped on his own accord, I explained why I was talking to him because of Coronavirus etc. and asked him for his details which he then refused so far. He has then got really animated. I’ve explained if he didn’t give us his details I couldn’t clarify the fact that he was a key worker or not and I report him for the whole Coronavirus thing and in order to report him I need his details, if he wouldn’t give his details he’d end up getting nicked.
So, we have detained him eventually, I have threatened him with PAVA. Another call sign has arrived and in the process of him holding against the wall someone from another call sign sworn at him so we have nicked him for resist arrest and public order offence but now because an Officer has sworn at him does that count as a public order offence.”
Following this consultation, PC Thisby approached the Claimant and advised that he had been “Arrested for a Section 4 Public Order Offence and Resist Arrest”. Desmond was then transported to Copnor custody centre.
According to the Custody Record, Desmond had been arrested at 02.20 for using “threatening/abusive/words/behaviour with intent to cause fear/provoke unlawful violence” and for “obstruct/resist a constable in the execution of duty.”
The circumstances of arrest were described as follows:
“Male stopped to give an account as to why he was out. Because aggressive initially refused details refused COVID-19 questions. Initially arrested for failing to provide details, when details obtained, remained being aggressive towards officers and arrested S4POA and resist arrest.”
Desmond was then processed and obliged to provide a fingerprint and DNA sample and be photographed and was then locked in a cell, feeling highly agitated and distressed.
After several hours, a senior officer viewed the arresting officer’s body worn camera footage and concluded that he had concerns as to the validity of the arrest and, on that basis, directed that Desmond should be immediately released. The officer’s account was recorded as follows:
“The initial reason for the encounter is clear that the officer is simply attempting to identify the reason that the detainee was out.
Although the detainee is quite angry immediately an answer is quickly given that he has just returned from work and is on his way home; he points to where his address is within a nearby block of flats. He shows his fluorescent work gear and states that he has been working on the railways for 12 hours and wants to go home.
The arresting officer engages and attempts to explain the reasons for the encounter. He states that one of the reasons to be out of home is for key workers to get to work. The detainee states that he is a key worker, he is working on the railways. The arresting officer asks for the detainee’s details to confirm that he is a key worker, the detainee refuses to provide these. The detainee is becoming more and more animated.
Eventually the detainee is arrested for failing to provide his details to the officers and attempts to pull away from them. He continues to remonstrate very vocally but does eventually provide his name. He is released whilst the officers then continue to attempt to obtain further details from him. He is still very angry about the whole incident and is shouting loudly in the street. Having heard the language used and watched the behaviour the behaviour might constitute an offence under s5 POA if there are MoPs present who might be caused alarm/distress however my concern is that the reason for wanting the detainee’s details (to show he was a key worker) is not actually one of the reasons that people are allowed to leave their house. The actual legislation is that people are allowed to leave home for the travel to work but only if they cannot work from home. In this case based on the male’s disclosure that he has just finished work on the railway and that he shows his hi-viz clothing it would be reasonable to assume that the detainee was indeed on his way home from work. He highlighted that he was going home and pointed the address out and it can be argued that there was no requirement for these additional details (certainly not for the reason presented in any case) and that it was clear the male was going home, was there any need for further interaction?
All subsequent offences then stem from this arrest so my view is that given the concerns over the validity of original arrest I do not believe that it is right or appropriate to take action for his later anger. Whilst I don’t think his language was acceptable it can be justified in the context that he felt (rightly in my view) he had been wronged and was venting his anger over this. He does not threaten violence towards anyone at any point.
I have therefore released him without charge. He was very angry and agitated on release, initially refusing to leave and wanting to be charged with an offence. I explained that I would not do this as I did not believe he had committed an offence. He did eventually leave. I have provided a taxi on account to get him home and supplied my details along with those of the officers dealing with the incident that he requested.”
Desmond was finally released at approximately 06.25 having been in police custody for 4 hours 5 minutes.
As the highlighted section in the senior officer’s review shows, common sense had at last prevailed – but it should never have come to this.
In a situation where emergency ‘curfew’ type powers had been granted to the Police under the Coronavirus Regulations – hastily drafted and unfamiliar to the Police – Officers should have proceeded with caution in order to ensure that they were not exceeding the limits of their powers. This especially applies in a fairly straightforward case such as Desmond’s – in that he had given an account of being a key worker substantiated by his work gear. PC Thisby and his colleagues should have simply walked away at that point, but unfortunately persisted in trying to, unnecessarily and unlawfully, extract all of Desmond’s identity details – as if we lived in a ‘papers please’ Police state. The pride of the Officers then appears to have got in the way of their de-escalating the situation; they apparently wanted to flex their lockdown muscles and responded in the typical manner which Police Officers do when their presumed authority is challenged.
As I have said, in a situation that was difficult for everyone – but where the legislation that had been put in place was not about unnecessarily criminalising normal activities, but simply trying to keep people safe – the Officers could and should have behaved with tact and respect towards Desmond, and if necessary, simply watched him walk back through his own front door. Instead, they manhandled and handcuffed him, pulled him off the street, drove him several miles to custody and locked him in a cell, after forcing him to have close contact with at least half a dozen people. How was such an action at all in keeping with the ethos of the Regulations which the Police were supposed to be enforcing i.e social distancing?
As I pursued this claim on behalf of Desmond, I then encountered a second manifestation of obstructive Police pride, at a much higher level. The Chief Constable of Hampshire admitted legal liability for Desmond’s wrongful arrest and the assault which he had suffered at the hands of the Officers but refused to grant Desmond’s reasonable request for a formal apology from the Chief Constable herself or one of her senior Officers. Indeed, in an attempt to secure such an apology, which was of importance to Desmond who felt morally outraged by what had been done to him, Desmond offered to settle his claim for a significantly lower sum of money if it was accompanied by such an apology.
Hampshire Constabulary refused to take that offer, instead agreeing a financial settlement only, in the sum of £30,000 damages, plus legal costs.
Although this was an excellent outcome for Desmond in financial terms, and he was further vindicated by the Police admission of liability, I am perplexed by the decision of the Chief Constable to refuse an apology letter and instead write out a bigger cheque from what is, at the end of the day, public funds.
Rather than saying “sorry” for this gross over-reach of power, and attempted criminalisation of a heroic key worker, the Chief Constable was prepared to put public money where her mouth should have been.
Iain Gould, solicitor and specialist in civil actions against the police.
“We consider it perfectly possible to assess quantum [i.e the value of the claim] in the current case at this stage and in our experience it is possible to settle the vast majority of wrongful arrest claims swiftly following an admission of liability. The representatives of both parties are very experienced with respect to claims of this nature. The length of detention is clear and the circumstances surrounding your client’s arrest not in dispute. The realistic likely outcome with respect to any assessment of psychiatric injury resulting from your client’s arrest can be predicted based upon experience of claims of this nature. Our offer has been calculated on that basis and we consider it offers our client adequate costs protection; whether it is accepted at this stage is obviously a matter for your client …..”
This is a communication which I received from the office of the Force Solicitor in response to a claim for wrongful arrest of just 4 hours for a man of relatively good character. At that time the offer of settlement which the Police had put forwards was £7,000 and it was this offer which the Force Solicitor was trying to induce my client to accept by claiming that in his experience it was highly unlikely to be beaten i.e. it offered the Police “costs protection” because my client was (in the Force Solicitor’s opinion) unlikely to achieve a higher award of damages at court.
Sadly, many Claims Against the Police are at risk of under-settlement because of the complex nature of this area of law and the robust and combative approach adopted by Police Forces and their lawyers.
When faced with such an approach, combined with an early admission of liability and an apparently attractive offer of settlement, solicitors with insufficient experience (such as those who primarily deal with accident claims), or those without ‘stomach for the fight’ might decide to fold and cash their client’s chips in early.
I, however, am proud to say that I always have in my hand those trump cards of experience, expertise and determination; the experience and expertise to properly assess the various heads of claim (length of and circumstances of detention; psychiatric impact; aggravating features and the possibility of exemplary damages) and the determination not to take an early pay out, but to see the claim through until my client has achieved the maximum realistic outcome – the financial payment that also brings with it the best sense of satisfaction and closure – the feeling that justice has been done.
Thus I advised my client and he rightly decided to call their ‘bluff’, to reject their offer of £7,000, commission expert evidence and institute Court proceedings.
The claim ultimately settled for damages of over four times that amount.
As I say, experience, expertise and determination.
The general principle behind the compensation system in the civil courts of England & Wales is to put the Claimant back into the position they would have been in, had the wrong not occurred. Sometimes this can be a relatively straightforward calculation as to direct financial loss or ‘out of pocket’ expense e.g loss of earnings/ the cost of medical treatment, whilst other aspects are more nebulous and complex – such as the calculation of the ‘value’ of the pain, suffering and loss of amenity caused by physical or psychiatric injuries; but the principle behind such calculations is always that of restitution to the Claimant: of not giving the Claimant a ‘windfall’ but rather resetting the balance so as to put them back into the position they would have been in without the tort/ breach of statutory rights committed against them (insofar as money can ever compensate for injuries).
However, there is another type of damages, over and above basic or compensatory damages, which can be appropriately claimed in a limited class of actions, of which claims against the Police are one. Exemplary damages are those awarded by the Courts not to compensate/ reimburse the Claimant for their suffering but to actively punish the Defendant and in this respect can represent something of a ‘windfall’ bonus for the individual Claimant; the overall purpose of such awards being to ensure the good of society as a whole by teaching the wrongdoer a lesson and discouraging future bad behaviour.
There is no question that the ethos of exemplary damages makes them particularly appropriate to claim in actions against the Police, or other Government/ State agents, as they can be a valuable tool in censuring those who have been granted powers over the public and who have grossly or flagrantly abused those powers.
“The jury should be told in a case where exemplary damages are claimed and the Judge considers that there is evidence to support such a claim, that though it is not normally possible to award damages with the object of punishing the defendant, exceptionally this is possible where there has been conduct, including oppressive or arbitrary behaviour, by police officers which deserves the exceptional remedy of exemplary damages. it should be explained to the jury:
(a) that if the jury are awarding aggravated damages these damages will have already provided compensation for the injury suffered by the plaintiff as a result of the oppressive and insulting behaviour of the police officer and, inevitably, a measure of punishment from the defendant’s point of view;
(b) that exemplary damages should be awarded if, but only if, they consider that the compensation awarded by way of basic and aggravated damages is in the circumstances an inadequate punishment for the defendants.
(c) that an award of exemplary damages is in effect a windfall for the plaintiff and, where damages will be payable out of police funds, the sum awarded may not be available to be expended by the police in a way which would benefit the public. [This guidance would not be appropriate if the claim were to be met by insurers].
(d) that the sum awarded by way of exemplary damages should be sufficient to mark the jury’s disapproval of the oppressive or arbitrary behaviour but should be no more than is required for this purpose.
Where exemplary damages are appropriate they are unlikely to be less than £5,000. Otherwise the case is probably not one which justifies an award of exemplary damages at all. In this class of action the conduct must be particularly deserving of condemnation for an award of as much as £25,000 to be justified and the figure of £50,000 should be regarded as the absolute maximum, involving directly officers of at least the rank of superintendent.”
A great many of the cases which I handle include allegations of oppressive, arbitrary and unconstitutional behaviour on the part of serving Police Officers and hence it is regularly appropriate for me to advance a claim for exemplary damages, as well as compensatory damages, on behalf of my clients; whether or not such awards will ultimately be made is another question, as they remain at the discretion of our often cautious and conservative Courts, but it is quite right and proper to include the claim so that the full tools of the civil justice system are available when the matter comes to adjudication.
However, I have recently encountered an argument advanced by solicitors acting for our Chief Constables in such cases, whereby they are seeking to ‘scare off’ claims for exemplary damages by reference to the recent judgment of Nickin J. in Underwood v Hampshire Hospitals NHS Trust [2022] EWHC 888 (QB), para 55 –
“I should record that the claim for exemplary damages ought never to have been included against the Second Defendant. On behalf of the Claimants, Mr Archer did not press the claim at trial (but neither did he formally withdraw it). Claims for exemplary damages are wholly exceptional. The cases in which such damages can properly be claimed are very few; those in which they are awarded fewer still. It is never appropriate to add a claim for exemplary damages simply to mark how upset the claimant is about the defendant’s conduct, or as some sort of negotiating strategy. The Particulars of Claim did not disclose a proper case for an award of exemplary damages against the Second Defendant. Happily, it appears that no significant time or costs has been expended on this issue, but as a matter of principle claims for exemplary damages should only be pleaded where there is a proper basis to do so and supported by admissible evidence or in the expectation that such admissible evidence will be available at trial.”
Indeed, this very argument was raised in a Defence filed on a case I have recently successfully concluded; in this Defence, the Police sought to argue that “there are no facts pleaded in the Particulars of Claim that could conceivably justify any such award and it was improper to plead that head of loss.”
I was able to robustly contest this allegation, for, in my opinion, the fact is that any ‘improper’ conduct lay on the part of the lawyer who drafted that Defence and disingenuously sought to rely upon the Underwood case when it was on its facts wholly different to a claim against the Police. The Underwood judgment related to a claim for breach of the Data Protection Act arising from the activities of a private company marketing offers and services to new/ expectant parents, rather than acts of violence and false imprisonment perpetrated by agents of the State, with which my client’s claim was concerned.
This experience shows the need for continued vigilance, however, in the protection of our civil rights which rest to such a great extent on the ever- evolving body of caselaw; clearly some Police Forces, or their lawyers, are seeking to restrict ever further the types of case to which exemplary damages are applicable and this needs to be resisted. An award of exemplary damages, or even indeed the threat of such an award, is a valuable tool in maintaining the rule of law and the effectiveness of our civil justice system.
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As I have made clear many times before, the civil justice system in this country has to do a disproportionate share of the ‘heavy lifting’ when it comes to holding police officers to account for their misdeeds, and regulating the balance of power between Police and public, because of the failure not only of the Police to police themselves but of our supposed Police ‘Watchdog’ the IOPC (Independent Office of Police Conduct) to show any real teeth on all but the rarest of occasions.
The fact of the matter is that this supposed Watchdog is often more like a sheepdog whose flock have run rings around him and then locked him in a pen.
What price a fair and proper complaint system in this country ensuring Police accountability and enforced by a regulator with real steel? Sadly, I am compelled to tell client after client that they can neither have faith in the impartiality and efficiency of the Police complaint system nor invest hope and reliance in appeals to the IOPC who, when not finding reasons to side with the Police, still seem to be able to offer even those whom they consider to have legitimate complaints luke-warm support at best, amidst a culture of delay and apparent deference towards the Police.
A classic example of this is a case in which I have recently been instructed, by a client who I will identify for the purposes of this blog by the name of ‘Anthony’.
Anthony made a complaint about an Officer of Greater Manchester Police following an incident which occurred in July 2020.
In October 2021 the ever-so-slowly turning wheels of the complaint investigation conducted by GMP’s Professional Standard Branch (PSB) delivered to Anthony the ‘outcome letter’ of the Appropriate Authority, Detective Superintendent Keeley. The good news was that DS Keeley determined that the Officer had a case to answer for gross misconduct in relation to honesty and integrity and discreditable conduct.
However, DS Keeley also rejected significant portions of my client’s complaint, determining that the officer did not have any case to answer in respect of use of force or equality and diversity (discrimination).
Although the Officer should now face a Gross Misconduct Hearing which could result in her dismissal, Anthony was bitterly disappointed that the charges against that officer did not encompass the racial discrimination and excessive force which Anthony felt he had been subjected to by the Officer.
As this was the outcome of an internal Police investigation, the Appropriate Authority advised Anthony of his right to “request a review” from the IOPC if he did not agree with his findings.
At the same time however, DS Keeley made it clear that Anthony would not be supplied with a copy of the Complaint Investigation Report on the basis that it contained evidence which would be heard at the Gross Misconduct Hearing. Anthony was informed that he would be entitled to a copy of the report only at the conclusion of those proceedings.
Anthony was therefore left in the farcical and Kafkaesque situation of being told that he had, in effect, a right of appeal against a report which he was not allowed to see. I am sure most of us would agree that it is difficult to argue against evidence and findings if you do not in fact know what that evidence and those findings are. Anthony had simply been informed of the very last ‘punch line’ of the report and no attempt had been made by Professional Standards or DS Keeley to explain to him any of the reasons for the rejection of more than half of his complaint.
Anthony, accordingly had to appeal ‘blind’ to the IOPC, bitterly disappointed by the lack of support and communication he had received and understandably feeling that his case was not being taken seriously, particularly his allegation of racial discrimination.
Anthony’s review request was received by the IOPC in November 2021 (within a few weeks of DS Keely’s decision) but it was not until July 2022 that he received a decision letter from the IOPC.
The good news was that the IOPC Caseworker upheld Anthony’s application for review on the basis that the GMP investigation into his complaint “was not reasonable and proportionate on the grounds of information”.
What did that bureaucratic-jargon phrase mean? The IOPC in reviewing the case had of course been made privy to the Complaint Investigation Report which Anthony himself had been denied sight of.
The IOPC Caseworker concluded:
“I am in no doubt that the response that you have received from GMP is not sufficient to ensure that you have all the information you need and can understand what it means…this has, it may be reasonably argued, adversely impacted on your ability to submit an informed application for review”.
That last sentence is, in my opinion, probably the epitome of stating the completely obvious in the most delicate, diffident and wishy-washy way.
The IOPC decision maker went on to comment that:
“I am not sufficiently satisfied from the information in front of me at this time, that GMP has adequately considered all of the available alternatives to ensure that you are as fully informed as possible in the circumstances”.
Indeed, I would describe the way that GMP’s Professional Standards Branch handled this issue as displaying all the typical hallmarks of arrogance, obstructiveness and lack of concern or compassion for the Complainant that is habitual in Police complaint investigations.
So, what would the IOPC now do – not only to set right Anthony’s situation (so he could be properly provided with the information he is entitled to) but also to send a message to GMP Professional Standards that this sort of behaviour will not be tolerated in the future?
The answer I am afraid, was a whimper rather than a bang.
Cap in hand, the IOPC Caseworker made no firm directions but simply begged GMP to give “consideration” to the “feasibility” of providing Anthony with a “redacted version” of the Investigation Report or – watering the request down even further – merely an ‘outcome letter’ which contains more information.
This was an abject failure by the IOPC to set any firm course of action; rather they simply offered ‘recommendations’ for ‘consideration’.
The IOPC signed off their involvement with the phrase, “We are committed to providing the highest possible standard of customer service” – a bog standard and essentially meaningless phrase when it comes at the end of a decision letter in which the IOPC appear to be saying to Anthony that although they certainly agree with him, they will do nothing to force GMP to comply other than to send Professional Standards a diffidently worded ‘begging’ letter.
It should be transparent to all, that in a healthy and open Police complaint system the balance of power would run in the opposite direction and Professional Standards would ‘jump to attention’ when the IOPC upbraided them and issued definitive instructions for a just and fair resolution of the Complaint process.
Instead, one is left with the distinct impression that both the Police and the IOPC know that this particular Watchdog is little more than a poodle.
So what happened next? Have GMP learned their lesson and in good faith taken the criticism levelled at them by the IOPC to heart and sought to ensure that Anthony is given as much information as possible, such that he can now reasonably and meaningfully appeal their decision to reject over half of his complaint?
I am sure you have already guessed the answer to that question.
The Detective Constable who wrote the Investigation Report confirmed within four days of the IOPC decision that she would not be releasing any further information to Anthony unless GMP’s Data Protection Unit instructed her to do so.
In other words; here is another bureaucratic hoop Anthony, please jump through it.
The likelihood of what will happen next is that, just as GMP’s Professional Standards Branch are now purporting to defer to their Data Protection Unit, the Data Protection Unit will hide behind the proposed Misconduct proceedings against the Officer, coupled with the expressed desire of PSB not to release the report, and will therefore refuse to do so until the Misconduct Hearing is complete and it is too late for Anthony to lodge any meaningful appeal against the Complaint outcome.
The IOPC have exhausted their usefulness and are extremely unlikely to intervene further. Anthony’s only recourse would then be a separate appeal to the Information Commissioner’s Office (ICO) or to the Courts themselves by way of Judicial Review.
None of this would or should be necessary if only the IOPC was fit for purpose; instead people like Anthony are left to count the cost of a depressingly dysfunctional Police complaints regime.
This is a guest post by my colleague and fellow solicitor, John Hagan.
The phrase “An Englishman’s home is his castle” dates back to at least 1505 where it was cited in a King’s Bench ruling, before being enshrined in Sir Edward Coke’s Institutes of the Laws of England in 1628. The familiarity of the phrase in both jurisprudence and common parlance is indicative of the importance which the English common law has always placed upon the security and integrity of a person’s home; the right of a person, when in his or her own home, to be safe from unreasonable interference by the State, whether in its modern or medieval incarnation.
The home owner can decide who enters the house, can refuse entry and can use reasonable force to repel trespassers, even if they are Police Officers, unless they have a specific right of entry granted by a limited number of statutory powers.
Indeed, it is out of this age-old common law right that the right to privacy and family life enshrined in Article 8 of the European Convention on Human Rights itself arises. No matter how much the present Government may revile the Human Rights Act, the fact is that those Human Rights have their roots in the deep and ancient rights accorded to British citizens.
One of the powers of entry which Police Officers can potentially exercise without the consent of the homeowner – indeed even in the face of his or her explicit opposition – is that granted by Section 18 of the Police and Criminal Evidence Act 1984 [PACE]:
18 Entry and search after arrest.
(1)Subject to the following provisions of this section, a constable may enter and search any premises occupied or controlled by a person who is under arrest for an [indictable] offence, if he has reasonable grounds for suspecting that there is on the premises evidence, other than items subject to legal privilege, that relates—
(a)to that offence; or
(b)to some other [indictable] offence which is connected with or similar to that offence.
(2)A constable may seize and retain anything for which he may search under subsection (1) above.
(3)The power to search conferred by subsection (1) above is only a power to search to the extent that is reasonably required for the purpose of discovering such evidence.
(4)Subject to subsection (5) below, the powers conferred by this section may not be exercised unless an officer of the rank of inspector or above has authorised them in writing.
[ (5)A constable may conduct a search under subsection (1)—
(a)before the person is taken to a police station or released … under section 30A, and
(b)without obtaining an authorisation under subsection (4),
if the condition in subsection (5A) is satisfied.
(5A)The condition is that the presence of the person at a place (other than a police station) is necessary for the effective investigation of the offence.]
…
However, it is an essential component of a lawful exercise of Section 18 Powers of Entry not merely that the Police believe (or purport to believe) that such an arrested individual resides at or owns the target address but that the individual actually does reside at or own the address. Note that the description of “premises occupied or controlled by a person who is under arrest” is not qualified by a ‘reasonable belief’ clause i.e the provision does not say “any premises which the constable reasonably suspects to be occupied or controlled by a person under arrest…”
Therefore, if the Police are acting under false or inaccurate information then any entry which they effect into a private property against the home owner’s consent is unlawful; and the Officers whilst on the property are unquestionably trespassers and therefore not acting in the lawful execution of their duty.
This was a key factor in a case which I have recently concluded against Merseyside Police.
My client, who I will identify for the purpose of this blog post as “Ben”, resides in a leasehold property in Liverpool with his partner and their young son.
The incident in question began in the early hours the morning in March 2019.
Ben was working on his computer in the living room, with his young son asleep on the couch in the living room, whilst his partner was asleep in the bedroom upstairs.
Ben heard a knock on the window at the front of his house and on looking out of the window saw a ‘Matrix’ van and Merseyside Police Officers outside his house. Accordingly, Ben went to the front door and opened it, to find himself confronted by three uniformed Police Officers led by PC Walters.
PC Walters demanded to know if Ben was another individual, George Bishop, and whether George Bishop lived at the address; Ben had never heard of this person, and told the officer this.
At this point in the conversation, Ben was aware that PC Walters had put his foot in the doorway to prevent him from closing it. Ben had initially opened the door half ajar and the Officer’s foot was now over the threshold so that it was clear to my client that any attempt that he made to shut the door would be prevented by the Officer’s foot.
Ben now asked “Can I go now?” to which PC Walters replied “We’re going to be searching this property under Section 18.”
This was despite a female Officer who was present (PC Highland) being overheard by Ben to say “He has clearly given a fake address.” (i.e that the individual George Bishop had wrongly given Ben’s address as if it were his own – which indeed was exactly what had happened).
Ben politely replied to PC Walters that he had no idea what a ‘Section 18’ was and asked the Officer to show him the relevant paperwork (as he assumed that some sort of warrant would be required).
PC Walters then asserted that the Police did not require any form of warrant to effect a Section 18 search (which was correct in principle, although incorrect in fact, owing to the fact that this was not George Bishop’s real address).
My client replied by asking the Officer to explain to him, in that case, what a ‘Section 18’ was, to which PC Walters asserted “I have told you we have the power to enter the property.” No further explanation was offered.
Ben now offered to get documentary proof of who he was and that this was his home (ie that he was not George Bishop) however this offer was ignored by PC Walters who then stated “Move out of my way, now!” The Officers forced their way en masse into the house, lead by PC Walters.
Ben now found himself being crowded by PC Walters and other Officers in the small vestibule of his house. Behind our client was a door (which was slightly ajar) which lead to the hallway within the house.
My client became aware that the family’s pet dog had been awoken (presumably by the voices of himself and the Police Officers) and had come into hallway.
Ben’s back was pushed up against the inner door by PC Walters. He asked the Officer to let him go so that he could deal with the dog.
PC Walters and other Officers however were becoming agitated and shouting at my client “Deal with the dog! Get the dog under control.”
Ben’s partner had now also been awoken by the noise and had come downstairs into the hallway of the house.
PC Walters now produced a canister and used it to spray the pet dog in the face to Ben’s shock and disbelief.
The Police Officers now pushed Ben through the doorway into the hallway. During this process Ben’s young son, who had been asleep on the couch in the living room, awoke and became hysterical at the sight of the strange people in his house manhandling his father.
Ben’s partner then took their dog upstairs, appealing to the Officers to leave, referring to the fact that her son was in the living room, but the Officers ignored this and PC Walters tried to push my client into the living room.
Ben did not want to be taken into the living room because he didn’t want his young son to become further distressed.
PC Walters then dragged Ben outside the property and slammed him up against the wheelie bins situated in the front yard.
As he was taking Ben outside, PC Walters put a handcuff on my client’s left wrist. Throughout this process, Ben offered no resistance to the Officer, and he was shocked at what was being done to him.
In attempting to put the handcuff on, PC Walters caused my client’s coat to become ripped and then he managed to put the handcuff on Ben’s right wrist as well.
PC Walters then made Ben sit on a seat inside the Matrix van and informed him that he was under arrest for obstructing an Officer in carrying out a Section 18 search.
Ben provided his personal details and confirmed that he had never before been in trouble with the Police.
Another officer, Sergeant Michaels was then overheard saying to PC Highland “Make sure you get the child’s details so we can contact Social Services.”
Ben was extremely disturbed by the Officer’s statement, as he was clearly suggesting that the Police were going to try and take his son away from him and his partner.
During the time that Ben was in the van, PC Highland spoke to Ben’s partner inside the house and informed her that ‘George Bishop’ was in Police custody and had given their address as his address. PC Highland added “I don’t think this was explained too well to your partner.” Ben’s partner confirmed to PC Highland that neither she nor Ben knew George Bishop and he had never dwelled at this address.
Ben was then taken to a Merseyside Custody Suite where he was detained for several hours in a cell and experienced ongoing stress and chest pains. Thereafter Ben was interviewed under caution with a Solicitor present and was finally released from Custody almost 15 hours after his arrest.
Ben was subsequently charged with the offence of obstruct/resist a Constable in the execution of his duty. He pleaded not guilty and the matter proceeded to Trial at Liverpool Magistrates Court where he was quite properly found not guilty.
Police Rush In, Where Angels Fear To Tread
The essence of this matter was relatively simple: even if the Police had indeed been ‘hoodwinked’ by George Bishop as to his true address, they had no power to enter Ben’s home under Section 18 of PACE. The summary power of a Section 18 right of entry is not couched in terms of whether the Police ‘reasonably believe’ that the arrested person occupies or controls the address, but the absolutely objective question as to whether or not he really does; and this is only right and proper given the preference which the security and privacy of our homes should be granted over the intrusions of State power, wherever possible, and in accordance with the oldest inclinations of English jurisprudence.
This position was endorsed in the clearest of terms by the Court of Appeal in the case of Khan v Commissioner of Police for the Metropolis [2008] EWCA Civ 723 which also involved Police use of Section 18 powers after a criminal suspect in custody had given a false address (Mr Khan’s address). Mr Khan was successful in his subsequent claim for trespass and the Police appeal against that decision was comprehensively rejected by the Court of Appeal; Lord Justice Pill set out his reasoning as follows (my emphasis) –
I see no justification for reading Section 18 other than in accordance with its plain words. The power may be exercised only at premises “occupied or controlled” by the person under arrest. The scope of the concept “occupation or control” is for decision on another day, though I would not expect it to be construed restrictively. The requirement for occupation or control is central and fundamental to the operation of Section 18 and its absence cannot be treated as a “trivial or unimportant irregularity”…
The expressions “reasonable belief” and “reasonable grounds” appear in different contexts in sections 8, 18 and 32 of the 1984 Act already cited [PACE] and the omission in the relevant part of section 18 (1) cannot have been accidental. Moreover Parliament plainly reviewed the operation of the relevant powers when passing the 2005 Act [Serious Organised Crime and Police Act], which included amendments, and it was not decided to qualify the requirement for occupation or control, which was also introduced, for certain purposes, into section 8.
I find nothing absurd in the construction favoured by the judge. The power in section 18 is more limited than that for which Mr Shetty contends but will be exercisable in those cases, likely to be significant in number, where the arrested person’s occupation or control of the premises is known or can readily be ascertained. In other cases a search warrant may be sought under Section 8, which, like Section 18, now applies to indictable offences. In Section 8, the authority to enter and search is conferred by a Justice of the Peace; in Section 18 it is conferred by a police officer of the rank of inspector or above (section 18 (4)), but in my view there is nothing absurd about the distinction.
Further, to give the words their ordinary meaning asserts the right to respect for private and family life and home provided by Article 8 of the European Convention on Human Rights (“the Convention”). Section 18 of the 1984 Act must be read so far as it is possible to do in a way which is compatible with Convention rights (Section 3 (1) of the Human Rights Act 1998). Article 8 (2) does permit interference with the exercise of the right in the interests of national security or public safety but the entitlement to justify interference does not permit section 18 to be read so as to insert words that the power may be exercised as long as a constable has reasonable belief in the arrested person’s occupation or control.
It is open to the Police to request a premises search warrant from the Court, initiating a process of judicial scrutiny and endorsement of the proposed search which then prevents the Police from becoming unwitting trespassers, if the proper statutory rules are complied with. Such a process, of course, involves the Police obtaining sufficient evidence to satisfy the Court that the premises are indeed those of the suspect/ arrested individual. If instead officers “rush in where Angels fear to tread”, short-circuiting the process of Judicial scrutiny, and end up invading an innocent family’s home, then it is essential that they bear the consequences of this, especially where in the process they resort to bully-boy tactics and unlawfully arrest a homeowner who was standing up for his rights.
I fully believe that notwithstanding the apparently false information given to the Police by George Bishop as to his residential address (notably unsubstantiated by any documentary evidence) this incident would not have escalated so badly to everybody’s detriment had the lead officer, PC Walters, not behaved in an arrogant and high-handed manner, favouring the exercise of his own perceived power and authority over the evidence which was immediately indicative of the officers having been led to the wrong address. Once again, this was a Police officer apparently substituting his own desire for personal power over others, for the carefully balanced powers of the legal system which he was supposed to be administering.
Merseyside Police initially sought to deny liability entirely, but I pressed my client’s case and held them to account, securing a liability admission for the officers’ trespass into Ben’s home and their wrongful arrest of Ben. I have recently recovered damages totalling almost £20,000 for Ben and his partner, plus legal costs, and have hopefully taught Merseyside Police a valuable lesson in the process.
If you have experienced a Police intrusion into your home, whether under PACE powers or a search warrant, please contact me for expert advice and representation; because – thankfully – five hundred years after the principle was first enunciated, English men and women are still well capable of defending their castles.
All names have been changed.
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There is an ever present risk that bullies and abusers are attracted to the Police profession because of the opportunity it offers to exercise power over others – but that problem is frankly several times worse in the far less regulated and scrutinised environment of the ‘security industry’ about which I have blogged before, and many of whose employees seem to display nothing short of ‘Wild West’ standards of morality, behaviour and (lack of) impulse control.
Yet another example of this, is a case I have recently concluded on behalf of a client who I will identify for the purposes of this blog as “Martin”.
In September 2018 Martin had been drinking in a pub in central Liverpool before heading to Liverpool Central Station to catch the train home.
Whilst he was waiting on the platform, Martin was approached by a female member of Merseyrail Staff who asked if he was okay and questioned if he had been drinking. Martin replied that he had had a few pints but that he was fine – but the female member of staff asserted that in her opinion he was not fit to travel.
Martin disagreed with this and was told that he would have to take it up with the staff member’s supervisor. Accordingly, Martin went up the escalator to the station concourse where he spoke to a male member of staff identified as the station manager.
Martin made polite representations as to why he should be allowed to travel, notwithstanding the fact that he had been drinking. The manager seemed sympathetic but ultimately said that he agreed with his colleague’s assessment and that he was refusing Martin permission to travel.
At all times Martin had remained polite and well mannered throughout his dealings with the Merseyrail Staff, and despite his inebriation did not lose his temper.
However, at this point four security guards employed by Carlisle Support Services Group Limited approached and laid hands upon Martin.
The four men physically escorted Martin from the station premises and whilst outside, in protest and what he felt to be their unnecessarily aggressive action, Martin swore at the men calling them “fucking bullies”.
In response to these words the Carlisle Group employees launched a vicious attack upon Martin; the first, who I will identify as Mr S, grabbed the back of Martin’s neck and slammed him face first into a wall. The security staff then forced Martin backwards and downwards to the ground and in the process of so doing fractured his right ankle so badly that it was later to require the insertion of metalwork to fix.
Two of the security staff – Mr S and Mr M – then pinned Martin to the ground and called for onlookers to “Get the Police”.
Martin was then held down on the ground for four long minutes, during which time Mr M applied pressure to Martin’s head and knelt on one of his hands. Mr S lay across Martin’s legs, maintaining a lock on his other hand. In fear, pain and distress Martin yelled out loudly, begging to be released. Fortunately, British Transport Police Officers arrived relatively quickly on the scene and Mr S and Mr M were persuaded to let go of Martin.
It was immediately obvious that Martin’s ankle had been broken and an ambulance was called to take him to the Royal Liverpool Hospital. Mr M then told a series of brazen lies to the Police – variously alleging that Martin had made threats, had assaulted him by grabbing his testicles and had run into the wall.
Thankfully however, CCTV had captured the true events and three of the security guards were subsequently prosecuted, with Mr S and Mr M ultimately pleading guilty to affray and receiving suspended prison sentences.
Martin had suffered a trimalleolar fracture of his right ankle together with damage to his medial ligament, as well as understandable psychological harm, and on his behalf I brought Court proceedings against Carlisle Support Services winning him damages of £42,500.
Too many security staff, it seems to me, are itching for the slightest excuse to flex their muscles, power-fantasies or whatever other urge drives them – often relying on the presumption that their ‘big brother – little brother’ relationship with the Police will protect them; thankfully here it did not, owing no doubt to the unimpeachable testimony of CCTV.
However, brutal assaults like this by security ‘gangs’ putting members of the public at risk of severe internal injuries – and even real risk of asphyxiation, in a manner similar to the murder of George Floyd – are all too common.
If you or anyone you know has suffered excessive violence at the hands of security guards who enjoy their job too much – please contact me for expert advice and assistance; together we can hold them to account.
The stringency with which this test, a key safeguard of our civil liberties and restraint upon the power of the Police, must be applied in cases involving the arrest of a child was highlighted in a High Court appeal decision last month.
The watchword of the UK’s ‘unwritten constitution’ is the same word which defines the unwritten social contract that exists between the Police and the public: reasonableness and the test as to whether or not it is reasonable to arrest a child when a crime is being investigated is right and properly set at a much higher level than in the case of an adult.
The case of ST v The Chief Constable of Nottinghamshire Police [2022] EWHC 1280 (QB) concerned the arrest of the Claimant, identified for the Court proceedings as ‘ST’, in December 2011 when he was only 14 years old.
ST was arrested just after 5.30am on 20 December 2011, in his own home, and thereafter detained in an adult cell in a Police Station for several hours before being interviewed and released on bail. He was never charged with any offence.
The basis of ST’s arrest was an incident which had occurred some 12 days earlier on 8 December 2011, outside ST’s school.
A pupil, identified in the Court proceedings as ‘J’, snatched a mobile phone from a 12 year old girl identified as ‘EB’. ST was nearby and came over and asked if EB was okay and then told her he would go and get J, before running off after the other boy.
EB and her mother then drove in their car and located J and ST. J returned the phone to EB but without its pink case or sim card. The Court noted that the value of the pink case was approximately £5 and the sim card was effectively valueless, as it was on contract and was stopped immediately.
In the following days, the school decided that J should be excluded as a result of his theft of the phone but the school was equally satisfied that ST had done nothing wrong.
However, on 19 December 2011 J was arrested by PC Lilliman and when being interviewed by the Police J alleged that it was ST who had told him to steal the phone. He alleged that it was ST who had retained the sim card and phone cover. As Mr Justice Cotter observed in the Appeal Judgment – “I pause to observe that this would have been a curious step as the value lay in the phone not in the pink case and EB’s sim card”.
PC Lilliman then decided that ST should also be arrested. He recorded his decision as follows –
“Decision taken to arrest ST the next day, to search for the stolen property before he left for school. Email sent to nightshift to arrest ST and search for outstanding property and I would deal with him in the morning when I started work at 8am”.
The task was allocated to PC Laughland and PC Turnbull who were working the nightshift.
It is important to note here that there is no record of any consideration by the Police as to whether instead of arresting ST, a search warrant could have been obtained and/or a voluntary interview requested.
The low value phone case, and the apparently worthless sim card, had been taken some 12 days previously whereas the valuable item – the mobile phone – had almost immediately been returned to EB. It clearly struck the appeal Court that it was very far fetched to assume both that ST had in fact taken the case and card and that he would have retained, rather than discarded, these very low value items. The Court also noted that the school’s own investigation had identified J as the perpetrator and expelled him, and not ST.
Nottinghamshire Police, on the other hand, appear to have had a tunnel-vision focus on the fact that the theft of the phone met the definition of the “very serious indictable offence of robbery” rather than on the practical details of the age of those involved, the minor nature of the offence and the slim chance that the low value ‘missing’ items were in ST’s possession. In other words, the decision to take the draconian step of arresting ST appears to have been taken without any adequate consideration of –
ST’s welfare given his young age (taken in the context of the low level of seriousness of the alleged offence);
the fact that the offence had occurred 12 days previously; and
that ST would not be difficult to locate if the Police did indeed want to interview him.
As Mr Justice Cotter observed, it appeared that the timing of the arrest, in the early hours of the morning, with the deliberate intention that ST would then be ready and waiting in a cell when PC Lilliman came on duty at a more ‘civilised hour’ that morning – was largely, if not solely, for the Officer’s convenience.
Indeed, the Judge at first instance (HHJ Godsmark QC, sitting in Mansfield County Court) had – metaphorically – spilt his coffee when hearing Police witnesses give the glib excuse that 5.30am arrest visitations were common practice because it was a ‘good time to catch people at home’. HHJ Godsmark found it “extraordinary” that the arrest of a 14 year old boy was tied to the convenience of a particular Officer’s shift and stated –
“In my time sitting as a Judge in both civil and criminal jurisdictions I have not heard of such a thing before. I really wonder how many members of the community would agree with such an arrest”.
That final sentence goes very much to the heart of the matter here, in my opinion – the social imperative that the Police exercise their powers in an objectively reasonable manner so as to ensure the good health of the ‘policing by consent’ relationship between UK Police and public.
When confronted by Police Officers at the door, in these shocking circumstances, seeking, rather grandiosely, to arrest his son for ‘robbery’ the Claimant’s father tried to reason with PC Laughland – offering to bring ST to the station to answer any questions the Police had at a more reasonable hour that morning.
Not only had ST been awoken in these distressing circumstances, but also his four siblings as well, and it is understandable that ST’s father would have been very upset at what was unfolding. However, it was clear that he kept a level head and made a sensible suggestion to try to resolve the situation.
Indeed, the challenge and alternative suggestion made by ST’s father appears to have given PC Laughland pause for thought, as at this point she telephoned her supervising Officer for advice, but was directed to continue with the arrest.
PC Laughland’s colleague PC Turnbull later commented –
“I did have my own reservations about attending at such an hour considering the age of the boy and the fact that the offence was 12 days old but such ‘arrestograms’ from other departments are common place and tend not to be questioned. I found it hard not to agree with ST’s dad at the time, but we were stuck in an unfortunate situation”.
Accordingly, ST was subject to the indignity of being arrested and he was taken by the Officers to Bridewell Police Station and detained alone in an adult cell on suspicion of robbery because “there was no other place to put him”.
Ultimately ST was detained for approximately 6 hours, during which time, some 3 hours after his arrival in Custody, he was interviewed in the presence of his father (acting as Appropriate Adult) and a solicitor and shortly thereafter released.
In January 2012 it was decided that no further action would be taken against ST, but the harm of course, had already been done.
Code G of the Police and Criminal Evidence Act (PACE) 1984 contains the following clear direction at paragraph 1.3 – The use of the power [of arrest] must be fully justified and Officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means.
In other words, arrest must never be used simply because it can be used. As Sir Brian Kerr LCJ said in Re Alexanders Application for Judicial Review [2009] NIQB 20 –
“…it is difficult to envisage how it could be said that a Constable has reasonable grounds for believing it is necessary to arrest, if he does not make at least some evaluation as to whether voluntary attendance would achieve the objective that he wishes to secure”.
The criteria for a summary arrest – as opposed to either the more formal process of applying for an arrest (or search) warrant, or the more informal alternative of a voluntary interview – could be satisfied under the Code G Necessity Criteria if there was evidence that, for example, the suspect was likely to collude with others or to hide or destroy evidence if he was not immediately taken into Police custody. Those factors simply did not apply on any reasonable analysis of the facts of ST’s case.
As Mrs Justice Thornton stressed in Commissioner of the Police for the Metropolis v MR [2019] EWHC 888 (QB) –
“The test of necessity is more than simply ‘desirable’ or ‘convenient’ or ‘reasonable’. It is a high bar, introduced for all offences in 2005 to tighten the accountability of Police Officers”.
Despite all of this, as well as his own evident discomfort at the heavy handed nature of the ‘dawn raid’ carried out by Nottinghamshire Police in this case, the Judge at first instance, His Honour Judge Godsmark QC ruled in favour of The Chief Constable by deciding that the arrest necessity criteria were satisfied.
In his reasoning, Judge Godsmark appeared to fall into a trap of circular logic by deciding that once the Police had knocked on the door of the family’s home at 5.30am that morning “the die was cast” because even though they were now presented with the reasonable offer from ST’s father to bring his son to the police station later that morning, Judge Godsmark felt it was nevertheless lawful for PC Laughland to continue with her intention to arrest ST because to fail to do so was to lose the complimentary power (granted by Section 18 of PACE) which allows Officers to compulsorily and lawfully search the arrestee’s place of residence for evidence associated with the crime. The Judge’s reasoning was that for the Officers to withdraw at that point without making the arrest would have given ST the opportunity to dispose of the evidence of the crime (if indeed he had committed it).
Nevertheless, HHJ Godsmark did appear troubled by his own finding and again reiterated that the arrest of a 14 year old boy, with no criminal record, at 5.30am in the morning, did not sit comfortably with him, and even whilst finding against ST, Judge Godsmark enunciated that very principle which should be the central ethos of UK Policing and the lens through which the exercise of Police powers should always be scrutinised –
“In a country where it is generally said that Policing is by consent of the community, I really wonder how many members of the community would agree with such an arrest”.
The Appeal
ST’s appeal against the rejection of his claim, was cogently advanced by Ms Sarah Hemingway of Garden Court Chambers on multiple grounds, of which the key lines of argument were as follows:-
There was no contemporaneous evidence as to why it was thought necessary to arrest ST and thereby circumvent the usual statutory safeguards in obtaining a search warrant, or otherwise inviting him to a voluntary interview, prior to the Officers attending at the family’s home. In the circumstances, the Chief Constable had failed to prove that there were reasonable grounds for ST’s arrest prior to the attendance of PC Laughland at his home.
Furthermore and following on from this, if there were no reasonable grounds to believe an arrest was necessary up until that moment, then it was perverse in the extreme to find that the arrest could have been made lawful and necessary by the Officers’ own mistakes (i.e. the Officers’ prior decision to attend at the family home at 5.30am thus ‘alerting’ ST to the fact that they wished to interview him and search his property). Yet it was this very justification that HHJ Godsmark appeared to have applied such weight to in his own Judgment.
In his detailed analysis of the appeal, the High Court Judge Mr Justice Cotter stressed the crucial importance of the test of arrest necessity noting that it is designed to protect the public from autocratic decisions and that arrest must never be used simply because it can be used (or is simply convenient for the progression of an investigation) –
“In the present case there was a central and obvious consideration; the Appellant was a child. In my judgement the Judge was led into error by submissions which, to a significant extent, equated children with adults…the Judge should have concluded that the approach of the Officers failed to factor into the assessment of the necessity the best interests of a 14 year old child. Where time for reflection exists, the test of necessity for arrest and detention requires anxious scrutiny of the fact that a child is involved. This approach is consistent with the duty under the Children Act 2004 and wider obligations”.
(Paragraphs 94 – 95)
In this country the treatment of children in detention is governed not only by our domestic law but also by the UN Convention on the Rights of the Child (UNCRC) which the UK has signed and ratified in accordance with our longstanding traditions of being at the forefront of development of the global gold standard for human rights.
Article 3 UNCRC provides that in all actions concerning children undertaken by public institutions, Courts of Law, administrative authorities and legislative bodies the best interests of the child shall be a primary consideration and, in particular, Article 37 requires that “the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”.
The requirement that the best ‘interests of the child’ should be integral to the decisions and actions of public bodies (including of course the Police) is enshrined in Section 11 of the Children Act 2004.
In any Police Officer’s consideration as to whether or not it is necessary to exercise their power of summary arrest upon a person, in accordance with PACE Code G, the fact that that person is a child should be ‘front and centre’ (Mr Justice Cotter’s words) in that consideration – and an assessment of whether a less intrusive step than arrest is a practical alternative, must be undertaken.
Indeed, although the Chief Constable of Nottinghamshire appeared to be unaware of this fact for the purposes of the claim brought by ST, the same principle is clearly endorsed by the College of Policing in its Authorised Professional Practice Guide on the arrest and detention of children and young persons –
“Officers must take into account the age of a child or young person when deciding whether any of the Code G statutory grounds for arrest apply. They should pay particular regard to the timing of any necessary arrest of children and young people and ensure that they are detained for no longer than needed in accordance with paragraph 1.1 of Code C. Officers should avoid holding children overnight in Police cells unless absolutely necessary”.
Applying these highly important guidelines and principles to the facts of the specific case the appeal Judge found –
PC Lilliman did not appear to have weighed up whether there was an alternative to arrest, specifically obtaining a search warrant and/or seeking a voluntary interview.
An arrest had to satisfy the high bar of being necessary, not just convenient and given the evidence, HHJ Godsmark QC should, on an independent and objective analysis, have reached the conclusion that PC Lilliman had failed to clear it. This was therefore a serious mistake by the Judge at first instance.
The overarching mistake made by the actual arresting Officer PC Laughland (who made the ultimate decision to arrest, albeit acting on PC Lilliman’s instructions) was that ST being a teenager (14 years old) somehow meant that he was not to be considered as a child.
Furthermore, the limited information set out in the ‘arrestogram’ about the offence/investigation could not have amounted to sufficient detail to provide PC Laughland with reasonable grounds for belief in the necessity of arrest – “An Officer can not ‘play safe’ and arrest someone because given all the circumstances as known to others it may be necessary” (Paragraph 110).
Yet further, insufficient consideration was taken to ensure that a 14 year old child was detained for no longer than needed.
The offer by ST’s father to bring him to the station voluntarily at a more reasonable hour that morning was an obvious practical alternative to arrest and yet further – the Officers present at the house, and also the more senior Officer who they consulted, failed to consider the obvious option of asking ST’s father to allow them to undertake a search of his son’s bedroom with the family’s consent and without ST having to be arrested – ST after all was only 14 and therefore had no power to prevent a search if his father, the owner of the house, permitted it (which on the facts available it seems highly likely he would have done so as to avoid the unnecessary stress and stigma for all concerned of his son being arrested and taken into police custody). Instead, the Officers in fact gave no thought at all to achieving the central objective of a search without arrest.
In all the circumstances – and not pulling any punches – Mr Justice Cotter concluded “I cannot see how… the [first] Judge could have found that reasonable grounds existed for the belief that arrest was necessary”. He therefore granted ST’s appeal, labelling the Police decision to arrest as “lamentable” and without due regard for the welfare of a child.
I very much applaud this Judgment in which the High Court has not only criticised the lazy and ‘glib’ policing which led to a child’s unlawful arrest, and reproved the Police for their tendency to treat teenagers as if they were adults, but has also sent a timely reminder to the rest of our civil justice system that it is the duty of lawyers and the judiciary to ensure that the exercise of policing power is always balanced by the responsibility to be reasonable.
The IOPC – National Stop and Search Learning Report April 2022 (page 19) states as follows –
The Code of Ethics describes an expectation that Officers will report, challenge or take action against the conduct of colleagues which is formed below the standards of professional behaviour. Officers must never ignore unethical or unprofessional behaviour by a policing colleague, irrespective of the person’s rank, grade or role (College of Policing 2014) and Forces should be encouraging and supporting supervisors and peers to fulfil their obligation under this standard when they can see things are going wrong.
All too often however, the Code of Ethics seems to be trumped by the Code of Silence i.e. Officers operating under an implicit ‘Us versus them’ mentality failing to challenge or report unlawful conduct by their comrades.
I have previously blogged about the case of my client Ben Joynes who was viciously assaulted by (now ex) PC Mark Knights of Derbyshire Police in November 2019. Following a minor disagreement about moving a car, PC Knights called my client a “fat cunt” and when Ben tried to complain about this, PC Knights headbutted him, pushed him to the ground, handcuffed and imprisoned him (thankfully temporarily) in the back of a Police van.
Ben found his initial official complaint to Derbyshire Police falling on deaf ears – despite the seriousness of his allegations – to such an extent that anti- corruption campaigner Rob Warner of Crimebodge stepped in to initiate a private prosecution against PC Knights in order to avoid the statutory 6 month time limit for criminal charges expiring whilst the Police erected their usual barriers of delay and prevarication.
Mark Knights was subsequently found guilty of common assault against Ben and dismissed from the Police for gross misconduct.
Although Derbyshire Police had to accept liability for the actions of PC Knights, they initially sought to absolve themselves of institutional responsibility for what was done to Ben – blaming this on the actions of one rogue Officer. After all, the lawyers acting on behalf of the Chief Constable argued, Derbyshire Police had (ultimately) dealt robustly with PC Knights who was prosecuted and convicted of criminal assault and then dismissed from the Force for gross misconduct.
They therefore contended that Ben’s claim for damages should be relatively modest – reflecting only what PC Knights had directly done to him.
However, I strongly felt that this case wasn’t just about the actions of one rogue Officer but rather the complicity through inaction of numerous other Derbyshire Officers who witnessed what PC Knights did to Ben, but who then failed to intervene whether to assist my client, to arrest PC Knights himself or to report PC Knights’ conduct to their Professional Standards Department.
At the Trial of PC Knights at Derbyshire Magistrates Court in December 2020 PC Jennifer Salmon confirmed that she witnessed the headbutt but in her answers to the Court refused to describe such action by PC Knights as being either surprising or unacceptable.
PC David Naylor likewise told the Court that he heard Ben’s son state that his father had been verbally abused and headbutted by PC Knights, but PC Naylor took no action in response to this information. Furthermore, body camera footage played to the Court demonstrated that PC Naylor attempted to justify/excuse PC Knights’ use of a headbutt against Ben. PC Naylor asserted to Ben’s son “Trust me, none of us just headbutt somebody for the sake of it”.
Likewise, PC Nixon (in his written statement of events) confirmed that he was aware at the scene of Ben and his son’s allegations as to PC Knights’ conduct, and yet he also took no action in regards to these complaints.
In summary, not one of the five other Police Officers who were present at the scene of this incident took any action against PC Knights at the time, nor subsequently reported his conduct, and both of the Officers who attended the Magistrates Court trial were equivocal in their evidence and refused to be drawn into criticism of their colleague.
In my opinion, it is likely to have been the lukewarm evidence of the other Police Officers, set out in their post incident statements, which led to the Crown Prosecution Service initially refusing to prosecute PC Knights on the basis of “no realistic prospect of conviction” – a decision which Ben had to appeal under the Victims Right to Review.
The actions of PC Knights himself were undoubtedly arbitrary, oppressive and unconstitutional – demonstrating a complete disregard for the importance of the rule of law and liberty of the person- and undoubtedly gave rise to a claim for damages; but to me it was also clear that the conduct of the other Officers present at the scene – which can best be summarised as ‘looking the other way’ in the moral sense of that phrase – was worthy of sanction by the Court, as being indicative of a Policing culture which tends to look after its own and in which Officers routinely overlook unlawful actions by their colleagues (in this case something as grossly obvious as a brutal headbutt followed by handcuffing and detention without the slightest shred of a reasonable explanation by the Officer) and/or attempt to discourage legitimate complaints.
The other Officers at the scene uniformly failed to intervene despite flagrant criminal conduct by PC Knights – which was apparently manifest to all non- Police witnesses at the scene – not only including Ben’s son but also independent witness Simon Thompson. Nor did any of these Officers even retrospectively report PC Knights’ act of misconduct, or ever offer any frank condemnation of the same – whether when asked to provide a witness statement of the events, when interviewed by their Professional Standards Department, or in the case of two of them, during sworn testimony at Court.
It was after reflecting upon the submissions that I made on this particular issue that the Police agreed to a final damages amount of £19,950, plus legal costs, a sum which I believe to be commensurate with the wider scale of Police wrongdoing in this case.
I trust that this outcome may also lead the Police to reflect on the much bigger picture here. This isn’t just about the quantification of Ben’s claim for damages, but about addressing the ambient level of ‘soft’ corruption which pervades the Police profession in the form of pro-police bias and defensive tribalism and manifests all too often in Officers either failing to intervene to stop another Officer’s wrongdoing, or to report or criticise that wrongdoing afterwards.
Ben’s faith and trust in the Police, and the rule of law in general, was severely shaken by his brutal treatment at the hands of PC Knights and this had a profound psychological impact upon him. A psychological impact which would have been substantially minimised if other Officers had come to Ben’s immediate assistance and the handcuffs that day had ended up around PC Knights’ wrists, rather than Ben’s.
Likewise, the damage to Ben and to our society as a whole, would have been minimised had the Police led a pro-active and prompt investigation and prosecution of this ‘rogue’ Officer – rather than delaying, prevaricating and only belatedly getting behind the criminal prosecution process which had not been initiated by them, but rather Rob Warner (Crimebodge).
In other words, the Police must ensure that they Police their own ranks as diligently as they do the streets.
This week’s blog concerns a case I have recently settled that showcases three distinct police misconduct issues: old school brutality; modern abuse of police computer systems; and the chronic reluctance of criminal justice authorities to hold rogue officers to account.
“We provoked the breach of the peace…we could have sat down and spoke to him”
At the time of these events, my client Robert Clifford lived with his partner in Essex.
On the evening of 14 October 2019, Robert and his partner had an argument and she called Essex Police, alleging that he had slapped her.
PC Gardner-McLean and PC Brannan responded to the call. Upon arrival the Officers spoke to Robert’s partner at the front door and she advised that she wanted Robert removed from the house.
The Officers entered the premises at around 19.36 and found Robert in the kitchen. PC Brannan immediately pointed his taser at Robert and Robert turned to face the Officers. It was clear that he was under the influence of alcohol. At this point, Robert had his left hand in the front pocket of his hooded top, and his right hand down by his side.
Robert was told to remove his hand from his pocket, which he did, showing that he was not holding anything. PC Brannan then approached Robert and took hold of his arm. Robert pulled away instinctively.
PC Gardner-McLean then approached and handcuffed Robert’s right wrist. Neither Officer had informed my client that he was under arrest, and indeed PC Brannan later said that he did not have any intention to arrest my client at this point. The force they were using against him was therefore prima facie unlawful. A struggle ensued and Robert was taken to the floor face-down, with PC Gardner-McLean’s arm around his neck. PC Gardner- McLean was now straddling Robert on the floor.
PC Brannan then punched Robert in his jaw – described as a ‘distraction’ blow- whilst PC Gardner-McLean pulled Robert’s right arm behind his back. PC Brannan then grabbed his left arm.
In shock and distress Robert continued to struggle, although he remained face-down on the floor. PC Brannan’s assessment (as quoted in the subsequent complaint investigation report) was that the situation was effectively under control –
“I recall PC Gardner-McLean calling for assistance. At this time the situation was no more than a struggle between Clifford, PC Gardner-McLean and myself. Knowing that back up was only a few minutes away I did not feel the need to escalate the level of force above that that had already been used…”
However, PC Gardener-McLean then took out his baton and struck Robert multiple times, first to his back and then three times to the back of Robert’s head which caused him immediate and significant blood loss.
Such was the level of violence used by PC Gardner-McLean, Robert’s partner now intervened and pulled PC Gardner-McLean off Robert, whilst PC Brannan later described his own reaction as follows-
“I did not have hands on Clifford now as I was shocked at the level of force used by my colleague and I could not personally justify any further force towards Clifford at this point.”
Bizarrely, PC Brannan, whom we might describe as the ‘good cop’ in this scenario, then decided that he would respond to his colleague’s excessive force by tasering Robert to prevent any further conflict between the two men. He later described his rationale as follows-
“I was still taken back by the level of force used by PC Gardner-McLean. I made a quick decision that I would deploy my taser at this very point to eliminate any chance at all of the situation flaring back up, as I believed if Clifford felt my colleague trying to cuff him to the rear then Clifford would take the opportunity to struggle again. My decision to taser Clifford was also based on preventing any further injuries coming to Clifford and knowing that he had a head injury that needed assessing quickly as I knew it was caused by an ‘asp’…”
Some of us might think that in fact the appropriate use of PC Brannan’s taser at this point would have been for the officer to point it at his colleague…
Robert was then handcuffed to the rear, and a tea-towel had to be used to mop up the blood coming from his head wound. Other Officers now attended including Inspector Wisbey. PC Brannan took Inspector Wisbey aside and advised that he felt PC Gardner-McLean’s behaviour had been unacceptable as PC Gardner-McLean had “drilled a baton” into Robert’s head and “split his head open.” This serious expression of concern appears to have fallen on deaf ears, however; PC Gardner-McLean was not arrested and instead Inspector Wisbey excused him from deployment for the rest of his shift on ‘officer welfare grounds’. When he himself later viewed the body camera footage, Inspector Wisbey opined that he did not consider it to show “a loss of control, or a deliberate attempt to cause injury to a person for no reason.”
PC Brannan then also took Robert’s partner aside and apologised for his colleague’s actions, explaining that the only reason that he had used his taser on Robert was because he didn’t want PC Gardner- McLean to continue to use force on him.
The Body Camera Recording of PC Lawless, who was one of the ‘back up’ officers arriving at the scene, captured PC Gardner-McLean leaving the property with the words “I’m going to have to get out of here.” – a comment the officer later claimed he could not remember making.
Other officers, interviewed for the complaint investigation process, recalled Gardner- McLean saying “I have really fucked up” and “I think I’ve fucked up and really hurt him.” – more comments PC Gardner-McLean later said he couldn’t recall.
Meanwhile, PC Brannan confessed to his Sergeant: “We provoked the breach of the peace…we could have sat down and spoke to him.”
Injury and Investigation
Robert was taken to Colchester General Hospital for medical treatment, where a (thankfully minor) traumatic brain injury was identified.
After he was discharged from hospital, Robert was then taken to Colchester Police Station. According to the Custody Record, it was stated he had been arrested for common assault and assaulting an emergency worker x 2 i.e. the Police Officers. The arrest circumstances were said to be that my client was “alleged to have assaulted [his partner] – slapped to the face, cause no injury…. During the arrest, DP is alleged to have assaulted PC Gardner-McLean and PC Bannan.”
Following custody processing, my client was examined by a Health Care Professional and then interviewed. Subsequently, it was decided that no further action would be taken against Robert in respect of any of the alleged assaults.
Robert subsequently lodged a complaint which was investigated by the Independent Office for Police Conduct.
During this investigation, it came to light that PC Gardner-McLean had unlawfully accessed Police computer records regarding Robert, the incident and Robert’s complaint. Once again, it was PC Brannan who ‘blew the whistle’ about this after PC Gardner-McLean announced to him that he had discovered that the offences of “Assaulting emergency workers” (i.e himself and PC Brannan) were not going to be pursued against Robert. It subsequently transpired that PC Gardner-McLean had accessed the Police Computer system on numerous occasions to check on the progress/ outcome of the investigation, despite lacking a policing purpose to do so, and had also accessed and viewed Robert’s NHS records in relation to the injuries he had sustained at the officer’s hands. PC Gardner-McLean later tried to excuse his behaviour in this regard by claiming it came out of sympathy for Robert, stating that he wanted to “make sure he’s alright because I’m human.”
The suggestion of genuine concern for Robert’s welfare was thrown into doubt by the fact that PC Gardner-McLean also accessed records relating to other investigations involving Robert claiming that he wanted to see how other officers had treated Robert and see if there was anything he could have done differently. We may be sceptical about this rationale, and it certainly seems the IOPC were.
As a result of the brutal attack by PC Gardner-McLean, Robert was left with recurrent headaches and feelings of nausea as well as depression and a deep- seated distrust of the Police, which disturbed him.
The IOPC led investigation report was highly critical of PC Gardner-McLean’s behaviour on a number of grounds, summarising the evidence as follows –
When officers arrived at the address Robert was calm and immediately removed his hand from his pocket when instructed to do so. PC Gardner-McLean was adamant that Mr Clifford had a knife concealed in his left trouser pocket – however PC Brannan was confident from what he could see that Mr Clifford did not have a knife. Indeed, at no point thereafter was Robert searched for a knife – and a valid question to ask is why, if PC Gardner-McLean genuinely thought at the time that Robert had a dangerous weapon concealed on him, he did not ensure that Robert was searched for that weapon.
On arrival, PC Gardner-McLean made no attempt to communicate with Robert about the risk he posed/ establish whether in fact he did pose a risk. Furthermore, when placing the handcuffs on Robert, there was no attempt by PC Gardner-McLean to inform Robert that he was under arrest. This lack of communication/ explanation heightened tensions unnecessarily.
PC Gardner-McLean in both his written statement and in interview under caution, claimed that he hit Robert only once to the back of his head “using not a lot of force” – however, PC Brannan described seeing Gardner-McLean strike Robert’s head three times, and this was supported by the Body Worn Video.
It goes almost without saying that the College of Police’s Code of Ethics requires that Officers must in all cases “Use only the minimum amount of force necessary to achieve the required result”. It is clear that an Officer has gone far beyond that requirement when one of his own colleagues is reporting his behaviour to other Officers in the immediate aftermath of the incident – an occurrence which we must applaud, at the same time as recognising its rarity.
Such was the level of force used by PC Gardner-McLean that he was not only investigated for gross misconduct but indeed for GBH (Section 20 of the Offenses Against the Person Act 1861).
On 20/11/19 PC Gardner-McLean was served with a Notice of Investigation outlining the following allegations:-
That he used excessive force when he struck Mr Clifford with a baton.
That he accessed confidential information relating to Mr Clifford using Police Computer Systems, without a legitimate policing purpose for doing so.
PC Gardner-McLean was interviewed by Essex Police under criminal and misconduct caution on 16 December 2019 and again on 12 March 2020.
Holding the Police to Account
Despite matters being referred by the IOPC to the Crown Prosecution Service in April 2020, a charging decision was not made until November 2020 and it was disappointing, although not perhaps ultimately surprising, given the inherent bias within the criminal justice system when it comes to the policing of the Police. The CPS decided to NFA (take no further action) against PC Gardner-McLean in regards to the offences of ABH and GBH, and instead charged the officer with just one count under S.1 Computer Misuse Act for unauthorised access to data.
Following the CPS decision not to prosecute for the offences of violence, the IOPC in collaboration with the Appropriate Authority (a senior member of Essex Police Professional Standards Department) decided that PC Gardner- McLean would not even face any misconduct charges in respect of his use of force.
Eventually, even the data misuse prosecution fizzled out, with the CPS concluding it was not in the public interest to continue, and therefore offering no evidence at Chelmsford Crown Court in June 2021. PC Gardner-McLean was to receive only a ‘written warning’ for his blatant misuse of the trust place in him in this respect: a mere slap on the wrist indeed.
In my opinion, PC Gardner-McLean’s behaviour after the incident, and indeed his wider treatment by the Force, seem to be indicative of the ‘one rule for us, one rule for everyone else’ culture which can become endemic in policing. He was not arrested despite his grossly excessive use of force; he was investigated but ultimately not prosecuted for that violence; and he clearly felt he could use the police database for his own personal purposes and get away with it – and effectively did so.
That was not the end of the story, however. I brought a civil claim on behalf of Robert, and faced with the threat of civil court proceedings, Essex Police agreed to pay out damages in the sum of £17,500 plus legal costs. It was clear to me that the Police did not want this case to see the light of day in a forum over which they have far less influence than criminal or misconduct tribunals.
Even in the face of great obstacles therefore, justice can be won for those victims of Police misconduct who have both the perseverance and courage to ride out initial disappointments and the guidance and expertise of the right lawyer.
Ultimately, Robert was let down by Essex Police, the CPS and the IOPC, but not by me.
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