By Iain Gould, Solicitor
I was saddened to hear about another Taser (‘stun gun’) attack by the police over the weekend.
In the early hours of Sunday morning, James McCarthy, a 22-year-old from the West Derby suburb Liverpool, was allegedly Tasered four times by a Merseyside Police officer. He was rushed to hospital by ambulance and is now in a ‘stable’ condition.
You can read the preliminary reports on the incident here.
I asked in my blog last year if the police are using tasers correctly. The Taser is a powerful and potentially deadly weapon. Training ought to emphasize the risks to the individuals concerned, especially if multiple discharges are made.
Given the physical and emotional trauma of just one discharge, if the family’s claim that Mr. McCarthy was Tasered four times is proven to be correct, it is difficult to imagine how that was a necessary, reasonable and proportionate use of force. If the police officers involved are shown to have used excessive force, serious disciplinary action and a compensation claim against the police ought to follow.
As a solicitor who specialises in these cases, I routinely receive instructions from people who have been victims of police brutality. Often my clients tell me that they pursue compensation claims so that the officers involved are disciplined and then trained properly about the use of force. This, rather than the money they receive, often helps them come to terms with the emotional trauma caused by such a serious assault, which can linger long after the physical symptoms have resolved. It is not uncommon for people to become withdrawn, depressed and anxious after a Taser attack. The effects of being assaulted by the police, who represent authority and ought to be trusted, cannot be dismissed lightly.
Merseyside Police have rightly referred Sunday’s incident to the Independent Police Complaints Commission. Even if the IPCC find no evidence of wrongdoing, the fact that James McCarthy is still in hospital should serve to remind all police forces about the need for proper training, and for the officers issued with Tasers to think twice about their devastating effects before using them.
I have recently settled a case on behalf of my clients Nick Fairbairn and friends.
They were involved in a bungled police operation which led to them being wrongfully stopped and detained at gunpoint.
With their consent I spoke about the case with BBC Radio recently.
Click on this link to BBC iplayer and scroll through to 2.37:57.
There you will hear both my client Nick Fairbairn and me being interviewed about the terrifying incident which led to their successful actions against the police claim.
Listening to BBC Radio 4’s Today programme on 5 March, I was struck by how poorly thought out the Legal Aid Sentencing and Punishment of Offenders Bill (‘LASPO’) appears to be.
It will have devastating consequences for access to justice.
The Justice Secretary advocates reforms detailed in the Bill. This is currently being considered in the House of Lords and is likely to be made into an Act in April 2012, before implementation a year later.
If pushed through, the reforms will make it impossible for many claims against the police to be pursued. This is because the Bill removes the valuable ‘safety net’ of legal aid for previously eligible claimants in cases where allegations of deliberate or dishonest conduct do not apply.
To make matters worse, the current system of conditional fee (‘no win no fee’) agreements backed with after the event insurance (which protects against the risks of paying own disbursements and opponent’s fees in the event of failure) will be reformed to deny the claimant the right to claim a ‘success fee’ from their opponent if they win together with the cost of their insurance policy. These two things have allowed actions against the police solicitors like me to help my clients obtain justice and recover 100% of their damages after police wrongdoing.
Under the changes, these costs will come out of the claimant’s damages even if they are successful. As a result many cases will not be pursued as the financial benefit to the claimant if they win will be outweighed by the potential costs they will have to pay personally if they lose.
Ken Clarke insists that ‘We’re taking legal aid away from lawyers.’ By removing legal aid and reforming litigation funding from civil litigation which includes police compensation claims, police misconduct will go unpunished, lessons will not be learned, and access to justice will be denied. For Mr. Clarke, a barrister and QC, that is a shameful legacy.
At 12pm today (1 February 2012) Commander Tony Eastaugh of the Metropolitan Police participated in a live webchat about the Met’s use of ‘stop and search’ powers.
He stated that, while the police’s powers to stop and search people were not being taken away or reduced, the Met intend to now use them in a more focussed way. In particular they plan to target ‘violent people’, although he did not define such people or provide examples.
In addition, he said that the Met would be seeking to reduce the number of ‘section 60’ searches, which is a stop and search power given to the police in response to violence. This power is widely used by the police and has advantages to the officers who apply it when conducting a stop and search as, unlike with a standard stop and search, they are not required to give reasons. The authority to use s.60 comes from a superintendent or an inspector, which means that the officer conducting the search can simply defer to their superiors. Interestingly though, Commander Eastaugh said that he would expect officers using s.60 to explain their reasons ‘out of courtesy’.
While I applaud the Met’s efforts to target stop and search more appropriately, the police have a long way to go to convince people from black or minority communities in particular that they are not being targeted. It remains a sad fact that you are four times more likely to be stopped and searched in London if you are black or from a minority community. To resolve that issue the police are going to have to show tangible results on wider issues such as race relations rather than simply targeting their use of one power; stop and search. If they fail to do so, more claims for actions against the police will inevitably follow.
Custody CCTV footage can often be helpful in an actions against the police claim.
Every police station in the country has a CCTV system in place recording everything that happens in the custody suite. Not only does the footage produced by the system provide vital evidence about a Claimant’s general demeanor immediately post-arrest, but it can also confirm or disprove the arresting officer’s initial arrest account. Often it contradicts the stated position of the police in correspondence, for example if they deny allegations of assault, leading to compensation being paid for the police’s wrongdoing.
Consequently, it is vitally important that custody CCTV footage is retained and made available to the Claimant and his actions against the police solicitor as soon as possible.
Many police forces operate a system whereby their CCTV footage is deliberately wiped after 90 days. In these days of digital technology, I often wonder why.
Also, increasingly I am coming across situations where CCTV footage is being wiped, despite my request within time that relevant CCTV footage be preserved. Excuses I have received recently include:
‘The Custody suite footage whilst requested by yourselves prior to the expiry of the 90 day period was addressed to the incorrect staff…’;
‘Your letter was received but unfortunately not acted upon…’ and;
‘there is no CCTV footage available as data was not captured due to technical difficulties…’
I have no doubt that these excuses are tactical, as they prevent access to evidence which may assist the Claimant and harm the police’s defence.
We all have an interest in how public funds are spent. If CCTV evidence will assist in early settlement of a claim that is in everyone’s best interests, especially the police’s, who will save money and time. Equally, if it contradicts the Claimant’s version of events, that should be known by his solicitor as soon as possible, who may take a different view as to the prospects of success. In short: custody CCTV footage should be retained and produced in every actions against the police case. Failure to do so can only be viewed with suspicion.
I recently read with interest the Telegraph’s report that a 19-year-old man’s s.5 Public Order Act conviction was overturned by Mr. Justice Bean recently on the grounds that his use of swear words could not have caused the necessary ‘harassment, alarm or distress’ required to convict.
In response, Peter Smyth (chairman of the Metropolitan Police Federation) complained that ‘if judges are going to say you can swear at police then everyone is going to start doing it’.
In my opinion, Mr. Smyth has missed the point completely. I am presently dealing with a similar actions against the police case for a client who was stopped and searched by the police while going to the bank. My client suffers from panic attacks, for which he has received therapy. When approached by them, the police officers used demeaning, offensive and rude language, searched him and made him agitated. He was arrested for a breach of s.5 Public Order Act and forced to sit on the floor of the police transit van while they drove him to the police station. During the journey and at the station he suffered a full-blown panic attack. My client was detained and searched again, and only released once a fixed penalty notice had been issued.
The police say he used abusive language which justified the arrest and subsequent charge under s.5. I dispute this. My client’s alleged use of swear words was in the course of his everyday language (e.g. he is alleged to have said ‘why the f— do you pick on me I just want to go to the f—ing bank.’). He was not squaring up to or challenging the officers, quite the opposite as he was using distraction techniques to try to avoid having a panic attack.
It is the context of the swear words which is important, and the way in which they are used, that may give rise to the ‘harassment, alarm or distress’ necessary to secure a s.5 Public Order Act conviction. S.5 was never intended to allow easy prosecutions for those who use swear words in every day conversation, rather it was intended to deal with those who cause fear and upset; the type of people we would all try to avoid. The sooner the police recognise the difference the better.