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I have just concluded yet another claim where a Police Officer abused his position for sexual gain.  In addition to paying my client substantial damages to reflect the harm caused, the Police Force agreed to issue to my client an apology.

Here are the terms;

“Please accept our regret and sorrow for the events that took place that simply should not have happened. 

We have learnt significantly from the events that unfolded in 2015, which has led to changes within our processes. 

• We will strive towards improving the appointment and selection of Family Liaison Officers (FLO’s) to ensure that similar events do not happen in the future.
• We now offer bespoke training to all FLO’s and their coordinators, to ensure there is an increased awareness of boundaries between FLO’s and the individuals they are assigned to. 

We offer our sincere apologies for the harm, injury and damage that was caused to yourself and your family”.

Officers using their position for the purpose of sexual exploitation is a form of serious corruption.  Although the problem was highlighted in the 2012 IPCC/Association of Chief Police Officers (ACPO) report as well as numerous high-profile misconduct and criminal cases, it is depressing that little or no action has been taken to address this.

In 2012, the IPCC/ACPO report called for a number of safeguards to be introduced;

• Enhanced internal vetting procedures.
• Greater supervision to ensure proper boundaries and response to reported concerns.
• Effective use and management of intelligence.
• Review to ensure lessons are learnt.

In 2015 (the year my client was abused), Her Majesty’s Inspectorate of Constabulary (HMIC) reported that the issue was of great concern to the public and hence required further review.  In particular, the watchdog advised that the best way for forces to tackle abuse of authority was to prevent it from happening in the first place.

HMIC identified that “Some counter-corruption units did not have the capability or capacity to seek intelligence on potential abuse of authority for sexual gain”.

It also found that almost half of forces inspected were unable to audit or monitor use of all IT systems – limiting how much information could be gathered to identify officers or staff who might be accessing databases to hunt for vulnerable victims.

In many forces, personnel did not have a “sufficiently clear understanding” of the boundaries regarding “establishing or pursuing relationships with vulnerable people”. 

In light of the recommendation that these issues needed to be addressed, I was outraged to read yesterday of Cheshire Constabulary’s failings as regards the appointment of PC Ian Naude in 2017.

PC Naude has been found guilty of raping a 13-year-old girl who he had first met a few days before following a domestic incident at her home in October 2017.  After looking her up on Facebook and exchanging sexual messages and photos, he returned to her home three days later.

He picked her up while her mother was out and drove her to a country lane where he attacked her. 

This is a very sad case in which opportunities to stop PC Naude were clearly missed.  He had been “vetted” as of suitable character to become a student Police Officer in October 2016, but his recruitment was put on hold in February 2017 when Staffordshire Police (a neighbouring Force) received a complaint from a woman who said Naude had raped her.

When that allegation resulted in ‘no further action’ Naude was allowed to join Cheshire Police in April 2017, going on to groom and rape the 13-year-old girl only 7 months later.

In my opinion, it is clear that following the rape allegation of February 2017, Naude should have been re-vetted by Cheshire Police.

Had they done so (we now know) they would have discovered that Staffordshire Police also had details of an allegation against Naude that he had sexually abused a child and that he had been reported to West Mercia Police for stalking another child on social media (both reports made in January 2017).

This information was available on the Police National Computer system, but because no re-vetting was carried out Cheshire Police remained unaware of these allegations until they started to investigate the October 2017 rape.

It is shocking that such opportunities to identify and stop a rapist and paedophile from joining the Police were missed, especially given the numerous recent cases and reports regarding the problem of predatory police officers which I have highlighted above.

It is time I think for the Police to show to us that they are paying more than just ‘lip service’ to tackling this problem, both in terms of rooting out, but also turning back at the recruitment stage, men who could very well be tempted , or be intent from the outset, of using the tools of power given to them by the honourable office of Police Constable to target and abuse some of the most vulnerable women and children in our society.

 

 

 

Several years ago, I was contacted by Kevin Holt.  He had been arrested a few months before for being Drunk and Disorderly and assaulting a Police Constable.  Following his arrest, he was charged and bailed to attend Court.  He had attended Court, pleaded not guilty and was awaiting trial.

Kevin had declined the services of a Solicitor at the Police Station and so, once bailed to attend Court, was sensible enough to realise that he needed representation for his appearance at Court.

Kevin’s Story

The circumstances of this incident, as reported to me by Kevin were as follows.  Kevin was in York, visiting two old university friends to celebrate one of them turning 40.  In the early hours of the morning, the three friends were on their way towards York Train Station, where they knew there would be a taxi rank so they could travel back to the house where they were staying.  It was then that they were approached by a Police Officer who will be identified in this blog as ‘Police Sergeant Ali’.  Kevin happened to be carrying a bottle of mineral water.  Sergeant Ali approached Kevin and stated that he couldn’t drink alcohol in this area.  Kevin quite reasonably pointed out that what he was drinking was water, not alcohol.  At the Officer’s request, he handed the bottle to him, but it appears the Officer did not smell/check the contents of the bottle.  Had he done so, it would have been quite obvious that it was not alcohol.

Instead of letting the friends go on their way, Sergeant Ali then informed Kevin that he had a power to arrest him, but did not give any reason or specify an offence.  Kevin challenged the Officer as to what offence he could possibly have committed.  Sergeant Ali failed to specify what offence he was considering and now insisted that Kevin provide his name and address.  Kevin refused to do this, beyond giving his middle name of Robert only, because he believed – quite rightly – that the Officer had no power to require him to give his name and address if he had not committed an offence.

Becoming exasperated, Kevin accepted that he did at this point swear (with words to the effect of “I can’t see why you want my fucking details”) and feeling intimidated by Sergeant Ali’s continued demands for his details, ran across to the other side of the road.

Kevin was then chased by Sergeant Ali and a second Officer, who will be identified in this blog as ‘PC Smith’.

PC Smith grabbed Kevin and manhandled him to the ground.  Kevin was incredulous at what was happening to him.  Out of the blue, his enjoyable night with his friends had suddenly turned into a situation in which he was being held face down on the ground by Police Officers.  Kevin could feel PC Smith kneeling on his back and using his hand to hold Kevin’s head to the ground.

PC Smith then forcibly pulled Kevin’s left arm across his back causing him considerable pain and discomfort and then, whilst he remained pinned helplessly to the ground by the combined weight of both Officers, Kevin found himself being sprayed in the face by a canister of PAVA gas which was being wielded by Sergeant Ali.  The gas was sprayed at point-blank range for several seconds into Kevin’s face causing instant and acute pain to his eyes, nose and throat.

Kevin was then handcuffed and roughly manhandled into a Police car, including having his head banged on the car doorway as the Officers moved him (something which you may recall President Donald Trump encouraged American Police Officers to do to ‘felons’ in their custody).

Kevin was subsequently shocked to learn that the two Officers involved – Sergeant Ali and PC Smith-  had given witness statements which painted a dramatically different account of their encounter with him, containing serious allegations about wrongdoing on his part which Kevin completely disputed.   The Officers variously alleged that Kevin had immediately become abusive towards Sergeant Ali (despite the fact that he had handed over the bottle of water without complaint), alleged that Kevin repeatedly swore at Sergeant Ali and that when PC Smith attempted to detain him, Kevin had attempted to grab the Officer’s taser gun, and then furthermore that whilst the Officers were detaining him, Kevin had struggled violently and twice kicked Sergeant Ali in the leg.

Kevin who, as my experience would show, is a thoughtful and well-mannered man of good character, was understandably outraged by these false accusations by the Officers, who sought to paint him as a drunken, foul-mouthed and violent lout.

Magistrates Court Proceedings

At the time of his arrest, Kevin was living in Exeter but had been visiting a friend in York to celebrate the friend’s birthday. In the circumstances, Kevin chose to instruct a local Solicitor in York.

Following an internet search, Kevin identified a criminal defence Solicitor based in the city and made contact. Kevin explained that he had been arrested for being Drunk and Disorderly, was due in Court and intended to plead not guilty.  The Solicitor agreed to act and advised his fee would be £300. Kevin paid up front and attended Court. The prosecution provided some disclosure, notably the statements of the two officers.

Following review and presumably cognizant of both Kevin and the officers’ accounts (By his own admission, Kevin had drunk 6 pints of cider and the arresting officer Sergeant Ali stated that at the time of arrest, Kevin “smelt of intoxicating liquor, his  eyes were glazed, he was unsteady on his feet, he was drunk”) his Solicitor advised him to plead guilty, notwithstanding Kevin’s clear instructions that he had not been disorderly nor assaulted any Police Officer, in short, that he was innocent.

Kevin was understandably disappointed by his Solicitor’s advice and it was this that encouraged him to make contact with me following an internet search.

At this stage, Kevin’s objective was to ensure that the criminal proceedings terminated in his favour (either by discontinuance or acquittal at trial) and to then sue the North Yorkshire Police for wrongful arrest.

So, to begin with, I encouraged him to change Solicitors and I then arranged for representation at the forthcoming trial with a clear direction to the advocate that from the Defence perspective, the trial would be effective and Kevin’s not guilty plea would be maintained.

Several weeks later, I was delighted to be informed that after a contested trial where both arresting officers gave evidence, Kevin was cleared of being drunk and disorderly and of assaulting either officer.

Kevin’s acquittal now opened the gates for him to bring a civil claim against the Police. Had he been found guilty, it would have been ‘game over’.

County Court Claim

Following a review of all the evidence, I intimated a claim against North Yorkshire Police.  Following investigation, the Police Force denied liability, maintaining that Kevin had been Drunk and Disorderly and had assaulted an Officer, therefore justifying his arrest and subsequent prosecution. North Yorkshire Police advised

“The arrest and detention of  your client was entirely lawful, and any force used by the officers in effecting arrest were entirely reasonable given the behaviour and demeanour of your client at the time”.

Notwithstanding the denial, I was satisfied that Kevin’s case enjoyed good prospects of success and therefore on my recommendation, Kevin authorised me to institute Court proceedings for false imprisonment, assault and battery and malicious prosecution.

Following issue of proceedings, North Yorkshire Police maintained their denial of liability and pointed out that even on Kevin’s account,  he had admitted to;

a) Swearing at Police Sergeant Ali before his arrest;

b) Refusing to give and/or confirm his true details to any officer until, on his case, nearly 10 hours after his arrest;

c) Giving a false name and/or seeking to  mislead PS Ali by stating his name was “Robert”, which transpired to be his middle name;

d) Acting foolishly by running away from PS Ali;

e) Being rude and abusive in custody.

Kevin’s admissions aside, I was satisfied that his claim enjoyed good prospects and I encouraged him to ‘bat on’. I felt that Kevin’s only ‘crime’ was not being sufficiently submissive to an officer when Sergeant Ali demanded his details. We do not live in a country where the Police have a right to demand ‘your papers’ (as it were) and Kevin was doing nothing wrong in refusing to give them. I believe that Sergeant Ali had severely overreacted when he felt his authority was being questioned, and any ‘disorder’ that ensued was caused by the Police, not by Kevin.

The Court subsequently fixed the case for a Case Management Hearing in July 2018.  In advance of that hearing, the parties agreed to engage in a Joint Settlement Meeting at which all issues were aired and after extensive negotiation, a settlement of £25,000 damages plus costs was agreed for Kevin.

Kevin was delighted.  Following his initial encounter with officers of North Yorkshire Police, he had been engaged in a long and arduous fight for justice and finally, nearly 4 years later, justice had prevailed.

I am delighted to have played my part in Kevin’s struggle but what concerns me gravely is the fact that, had he listened to his first criminal defence lawyer, he would have pleaded guilty and he would have returned home a broken man, having lost faith in both the Police and our Criminal Justice System. Furthermore, Sergeant Ali and his colleague PC Smith would have gotten away with their oppressive, heavy-handed and frankly unlawful conduct towards an innocent member of the public.

In my experience, too many Solicitors seek to persuade their clients to plead guilty.  Many jaded criminal practitioners it seems to me, made cynical by the nature of their day-to-day job, seem to assume most of their clients are guilty, and seek to get the case off their desks by encouraging a ‘guilty plea’, which they can entice clients to make because of the promise of a reduced sentence (compared to being found guilty after Trial). This attitude lets down honest and upstanding individuals who have simply found themselves in the wrong place at the wrong time, or who have run afoul of Police aggression/ misconduct. This problem amongst criminal defence solicitors was highlighted by Dr Daniel Newman in his recent article “Why do some defence lawyers regard their duties as a problem”. To quote from Dr Newman –

Beyond simply believing clients guilty, I saw every lawyer push clients to plead guilty, in many cases despite the client asserting their innocence and wanted to plead not guilty.

Here, I’m pleased to say, Kevin came to me for a second opinion, and I ensured that he first got the right advice, and then at the end of the day, the right result. I will leave the last words to Kevin himself –

“I’d like to thank Iain Gould and his colleague John Hagan for their support and expertise in conducting my case. I am very happy with the settlement I received. Iain did not shy away from issuing Court proceedings when it was necessary, and he and John provided me with calm advice and robust representation, making what could have been an uncomfortable and nervous process a lot easier.”

I have previously blogged about the impact an arrest can have, especially on those who have a history of anxiety and depressive symptoms and are therefore at risk of a further mental illness (see The Untold Story of Police Detention ).

The law holds, by what is known as the “Egg Shell Skull” rule,  that a Defendant must take their victim as they find them, i.e. if the victim is particularly  mentally or  physically vulnerable or has a pre-existing condition resulting in them suffering greater injury from the Defendant’s actions than would be expected in an ordinary person, the Defendant remains responsible for the full extent of the injury.

I was mindful of this rule when pursuing a claim against the Court Service on behalf of an elderly client, “Sheila” (name changed), whose case has recently settled for substantial damages.

In November 2014, Sheila appeared at her local Magistrates’ Court on charges of common assault and a public order offence following an altercation with a fellow passenger on a bus.

Sheila was 68 years old and of good character. She pleaded not guilty and her case was adjourned for summary trial.

As a result of administrative difficulties, the trial was eventually listed for July 2015.

Unfortunately, Sheila failed to attend the trial as required whereupon the Court proceeded to hear the case in absentia and convicted Sheila of the offences charged.  Due to her non-appearance, the Court also issued a warrant for her arrest.

Sheila had  ‘put her head in the sand’ and hoped the case would go away.  It didn’t.  After she confided in family members, she was encouraged to hand herself in. Accordingly, a few days later Sheila voluntarily surrendered to the Court.  As a result of her non-attendance, Sheila admitted an offence contrary to section 7 of the Bail Act and was sentenced for the original offences that she had been found guilty of.

Accordingly, following this hearing Sheila was no longer ‘wanted’ and all proceedings had concluded. As a result, the Court should have taken steps to ensure that the warrant that had been issued was cancelled and withdrawn.  Sadly they didn’t.

At approximately midday the very next day, a Saturday, Metropolitan Police Officers attended Sheila’s home address and arrested her for failing to appear at Court. Her protests that the warrant had been withdrawn and that she had already been punished were ignored.

Sheila was thereafter detained at her local Police Station for the next 2 days during which she was recorded as  “extremely anxious”, “unable to concentrate on what was being said”, “upset and crying” and generally incoherent.  Eventually, she was produced at Court on Monday morning whereupon it was established that the warrant had indeed been executed and dealt with a few days before.  Accordingly, Sheila was released from custody.

In the circumstances, Sheila had a cast iron case against the Court Service for failure to ensure that the warrant was cancelled and/or for failing to update the PNC.  Court staff had failed to follow standard operating procedure causing the warrant to remain active on the Police National Computer (PNC).

I was instructed to pursue a claim on behalf of Sheila and identified that she had a claim for false imprisonment, negligence and/or breach of Human Rights (Article 5, the Right to Liberty).

Not only had Sheila been unlawfully locked up for 2 days, because of her wrongful arrest she suffered a significant deterioration in her mental health. Shortly afterwards, she had a hypomanic episode.  She was subsequently found in a paranoid and suicidal state in local woods and was detained by the Police under Section 136 of the Mental Health Act and then a few days later jumped into a river. This led to a lengthy acute psychiatric hospital admission at the conclusion of which she was diagnosed with Bipolar Affective Disorder. Following her discharge, she continued to receive treatment from the Community Mental Health Team.  She was prescribed antipsychotic medication to prevent hypomania/mania and antidepressant medication for depression and anxiety.

In October 2016, Sheila suffered a relapse in her condition.  It would appear that this relapse was triggered by a failure to take her prescribed antipsychotic medication.  She was found by a member of the public with bleach on her lips and later observed walking in and out of traffic on a busy road nearby.  She was informally admitted to a psychiatric hospital under Section 3 of the Mental Health Act 1983.  During this admission, Sheila verbalised her thoughts and distress about the incident in July 2015.  Antidepressant withdrawal and an increase in her antipsychotic medication helped to stabilise her mood.  Following improvement Sheila was given one week’s leave from the inpatient unit with support from the Home Treatment Team.  She was finally discharged from hospital 3 weeks later.  The Community Mental Health Team took over her care from thereon.

2 years after her unlawful arrest, Sheila remained under the care of the Community Mental Health Team and a community psychiatric nurse continued to visit her at home. She continued to take regular medication. 

Clearly, Sheila had suffered loss of liberty, but could it be said that the deterioration in her mental health was attributable to the arrest or to other factors? At the time of arrest, Sheila had a long history of anxiety and depression. Further, it was evident from her medical records that in the period leading up to her unlawful arrest, she was suffering from low mood and anxiety.

I commissioned a report from a psychiatrist who found that Sheila was likely to have had a pre-existing vulnerability to developing Bipolar Disorder, particularly in  response to significant life events and concluded that on the balance of probabilities, the stress associated with her wrongful arrest and detention triggered a hypomanic episode, subsequently classified as a Bipolar Disorder.  For the expert what was key was the temporal relationship between Sheila’s detention in police custody and the acute deterioration in her mental health only 3 days later, requiring the use of Section 136 of the Mental Health Act, and a psychiatric hospital admission  5 days after that.  

Bipolar Disorder is a very severe condition.  Many people suffer from periods of anxiety and depression from time to time, but they would be expected to recover and are essentially able to continue with their day to day life during these episodes.  The psychiatrist concluded that the condition would affect Sheila for the rest of her life.  It will be a blight on the rest of her life and she will need to take appropriate medication for Bipolar Disorder for as long as she lives, because, if she stops, she is likely to suffer a relapse.  For the most part, this medication is likely to control her condition, but she is at risk of a relapse, and Bipolar Disorder is well known to entail an increased risk of suicide.

This is a classic example of the Egg Shell Skull Rule which I referred to at the beginning of this article.  In most people, even a stressful incident such as this, including two days’ unlawful detention in Police cells, would not cause them to become ‘Bipolar’ but in Sheila’s case, because of her pre-existing vulnerability, it did.  It is quite right that the law holds the Court Service to account for the dramatic effect their wrongdoing had on Sheila, notwithstanding that in most people it would not have provoked the emergence of such a severe illness.

 

I was recently consulted by the BBC in relation to the case of Koshka Duff, an academic who was arrested and subjected to the gross indignity of a strip search by the Metropolitan Police. You can read Koshka’s story here.

Excessive Force and Unlawful Arrest

I was sadly unsurprised to note that whilst all evidence points to excessive force being used against Ms Duff, she being the one with documented, visible injuries following this encounter – it was she who was accused of assaulting an officer rather than the other way around. An accusation of ‘assault PC’  often seems to be a reflective defence mechanism by the officers involved in ‘over the top’ arrests, who are, no doubt, conscious of the need to justify the force they have used, by alleging violence on the part of the person arrested; in my experience, the majority of these ‘suspect’ allegations of ‘assault PC’ are subsequently dropped before they get to Trial or else are disproven in front of the Magistrates.

Refusal to Provide Personal Details following Wrongful Arrest

Whilst I entirely sympathise with Ms Duff’s strong feelings that because she had been assaulted and wrongfully arrested she did not want to ‘give in’ to the Police and provide her details, long experience tells me that no good comes of such an action. I would advise everyone, once arrest has occurred – no matter how wronged you may feel – to co-operate with the Police and provide disclosure of your personal details. This will give the Police far fewer excuses to prolong your detention, or indeed to detain you at all – if you provide your details, it may not be justifiably “necessary” for the Police to take you into custody as opposed to issuing a penalty notice, a summons or having you attend a voluntary interview at a later date. If you present yourself as John/ Jane Doe you are giving the Officers a valid reason to detain you until your identity is established.

I feel that rather than withholding her details – or trying to use that information to bargain with the officers – Ms Duff should have identified herself, and taken the earliest offered opportunity for interview (by all means going “No Comment”). This may well have led to her earlier release.
In co-operating with them, you may have to swallow your pride for a short time, but all of your rights to pursue a complaint and/ or a civil claim for compensation are intact. By providing your details, you can ‘fight again another day’ and in the meantime have hopefully considerably shortened the time the Police can lawfully detain you for. In the end, everybody ends up having to identify themselves so this kind of protest at arrest is, sadly, inevitably futile.

Misuse of Strip Search Powers by the Police

On the facts available to me, the strip search of Ms Duff certainly seems excessive and unlawful. There appear to have been no reasonable grounds to assume that Ms Duff was carrying a weapon on her person (or any other concealed/ prohibited item) and the truth behind the search appears to have been spelled out by the Custody Sergeant himself when he wrote in the Custody Record “Refuses to tell police her identity”. Refusal to identify yourself – notwithstanding my comments above that Ms Duff should in her own best interests have done so – does not entitle the Police to subject you to the gross indignity of a strip search absent other reasons/ clear risk factors.

I sadly suspect that the decision to strip Ms Duff was born out of Police frustration at her refusal to identify herself, and was in that respect a gross misuse of the power i.e it was intended to frighten/ shock her into ‘submission’ such that she would become compliant with Police demands. In numerous cases in which I have acted, I have seen highly ‘suspect’ strip- searches being authorised in circumstances where it seems the true intent – as here – was to punish/ humiliate the detained person. Indeed, I have recently settled a claim on behalf of Mr Paul Ponting against Lancashire Police, one of the key features of which was a strip search that in my opinion was totally illegal and unjustified; it must have been apparent to the officers that Mr Ponting had no dangerous/ concealed items on his person yet he was nevertheless violently stripped of his clothes and left naked in a cell for hours, all because he had not immediately co-operated with questions put to him by the Custody Sergeant on arrival at the Station. Little or no (less than a minute) attempt was made to reason/ discuss with Mr Ponting before he was carted off to the cell for what we might call his ‘dose of medicine’ (in the eyes of the Police). Footage of this shocking strip search was recently featured in high- profile media reports regarding the settlement of his case, including by the Liverpool Echo and ITV News. I strongly feel that Ms Duff was a victim of the very same brand of Police misconduct.

I would point out that the comments of the Officers as reported by Ms Duff – derisorily referring to her as a “bleeding heart Lefty” and “some sort of Socialist” – demonstrate that at no point did they seriously consider her to be a criminal or gang member carrying weapons or drugs – and in this light we can, I believe, correctly characterise her subsequent stripping as a deliberate and malicious act specifically designed to teach someone who they considered to be an interfering busybody a lesson…In doing so it was, in my opinion, the Police Officers involved who made themselves criminals by perpetrating an unlawful assault upon an innocent citizen.

I wish Ms Duff the very best of luck in proceeding with a Judicial Review of the Misconduct Panel’s decision to exonerate the Custody Sergeant who authorised the strip search. The road to justice can sometimes be a long one, but when a person’s determination is combined with the right legal advice and representation, all obstacles can be overcome.

Guidance issued by the College of Policing (which applies to children/young persons), states as follows: “Children and young people are a protected group with specific vulnerabilities. Their treatment in detention is governed not only by domestic legislation but also by the UN Convention on the Rights of the Child (UNCRC) which the UK has signed and ratified. The UNCRC defines a child as a human being below the age of 18, unless the relevant laws recognise an earlier age of majority”. In particular, the UNCRC specifically states that custody should be used “only as a measure of last resort and for the shortest appropriate period of time”. The bar to justify the detention of a child in a police cell is therefore very high.

The reason is obvious; an arrest has the potential to affect a child’s life adversely in many ways, from the immediate traumatic experience of detention to the uncertainty of prosecution. It can also tarnish their futures, for example through Disclosure and Barring checks that could affect job or study opportunities.

Notwithstanding the UN Convention, the sad fact is that the Police are still arresting some children where an arrest is simply not necessary and could and should have been avoided by means of an invitation to voluntarily assist the Police, by way of interview.

In this respect, I have just concluded claims brought for 5 children against a regional Police Force which resulted in payments totalling £40,000 in compensation for wrongful arrest.

All 5 boys (then aged either 14 or just 15) were arrested on suspicion of assaulting a fellow schoolboy 5 months earlier. At the time the victim had allegedly been too scared and embarrassed to report it.

Upon notification, the Police made initial enquiries, arranged to interview the victim and then arrested the 5 suspects the following day. Given the number of suspects and suggested requirement for them to be arrested and interviewed at the same time, this was identified as a “resource intense process”.

Arrest was said by the Police to be necessary in order to “seize mobile phones from the suspects, and to avoid the possibility of contamination of accounts by way of collusion”.

On the day of arrest, 3 of the boys were arrested at their school and 2 at home. The debrief for this “resource intense process” appears to have been rushed and incomplete; 3 of the boys were arrested for rape and 2 for sexual assault. Phones and laptops were seized and all 5 were escorted separately to a local Police Station whilst efforts were made to contact their parents to act as Appropriate Adults.

All 5 boys had no prior experience of arrest, let alone Police custody. All 5 were, understandably bewildered and intimidated by their arrest and subsequent detention. Upon arrival at the Police Station, the 5 were individually processed; first obliged to provide their personal details and then quizzed as regards their health and general wellbeing. In response, the boys said they were “confused”, “shocked and upset”, “nervous” and “scared and confused”. All 5 were searched and any possessions seized which for one boy included “cash of £5.47, bottle of water, train ticket, school note book, sweet, tie and wrist band” and another “train ticket, jumper, tie and chewing gum”. All 5 were then escorted to and locked up in adult cells which were described as cold and dirty. All 5 subsequently described feeling isolated and scared.

In due course, the nature of the alleged offence was clarified (the complainant alleged that he had been sexually assaulted not raped), parents arrived to act as Appropriate Adults and all 5 boys were interviewed during which each answered questions, robustly denying the allegation. Eventually, after 5 – 6 hours in custody, all 5 boys were released on bail for further investigation. Three months later they were advised that no further action would be taken.

On the basis of the complainant’s account, it was appropriate to interview the 5 boys but was it really necessary to arrest them, particularly given that arrest and detention must only ever be a last resort?

I was instructed to act on behalf of the boys by their parents and I am delighted to report that the Police accepted that each arrest was indeed unlawful. Any theoretical risk of collusion had long passed, as all 5 boys and the complainant had been at the same school for the 5 months since the date of the alleged incident. The trauma of the public arrests and lengthy detention was wholly unnecessary and avoidable.

Following prolonged negotiations, the Police agreed to compensate each boy £8,000 to reflect the shock of arrest and loss of liberty.

Given this was a pre-planned Police operation, concerning 5 suspects, 4 of whom were 14 and 1 who had just turned 15 it is a travesty that more careful consideration was not given to the question of arrest and alternative options to custody.

According to the Howard League for Penal Reform, there were 101, 926 arrests in 2015. It is apparent that at least 5 of those arrests of the children in England and Wales were unlawful. I suspect however that this is just the tip of the iceberg.

 

I am very pleased to see that the recent settlement agreed on the case of my client Paul Ponting is deservedly attracting media attention.

Paul has fought a long campaign for justice ever since he was arrested, and assaulted, by Officers of Lancashire Constabulary in June 2014; last week we agreed terms to settle his case for damages in the sum of £35,000 plus an apology from the Chief Constable of Lancashire as follows –

The Chief Constable wishes to apologise to you for the way the incident on 18 June 2014 was handled. 

The Chief Constable hopes that now your action against the Force has been settled you will be able to regain your health and, in time, your faith in Lancashire Constabulary. 

The background to this matter was that Paul and his family had reported to the Police harassment, including death threats, which they had received from a former employee of their computer maintenance and support business. 

Paul was a law-abiding family man who had never previously had any adverse dealing with the Police, and indeed counted a number of Police officers as personal friends, but he became understandably frustrated when months and months dragged by without the Police taking action against the man whom Paul knew had threatened to kill his wife and young children. Matters culminated on the evening of 18 June 2014 when Paul and his wife Anna were in the process of putting their children to bed and were visited ‘out of the blue’ by two Police Officers – Sergeant Hayes and Constable Ward – who delivered the ‘bomb shell’ news that no action was to be taken against the man who had been harassing the Pontings. This confirmed Paul’s worst fears, as he had knowledge that the man in question was a ‘Police informant’ and he had come to suspect that this was behind the apparent reluctance of the Police to prosecute him.

Owing to what Lancashire Constabulary have subsequently stated was a ‘mix up’ the two Officers who attended seemed to be under the impression that Paul and Anna had already been informed about the ‘no charge’ decision in their case, when in fact they had not, meaning that this surprise visit came as a severe emotional blow to both of the Pontings. Sergeant Hayes and his colleague then said they had no knowledge of the case, and therefore couldn’t answer any of the Pontings questions as to why no further action was being taken against the man who had harassed them.

A discussion took place on the driveway of the Pontings’ home, with Paul and Anna seeking answers as to why – in their eyes- they had been so badly let down by the Police; this culminated in Sergeant Hayes grabbing hold of Paul and placing him under arrest for an alleged ‘Public Order’ offence. The Officer alleged that Paul was shouting and swearing so as to cause distress to nearby members of the public; something vehemently denied by Paul.

As the Officers dragged Paul away before the unbelieving eyes of his wife, Paul although shocked did not attempt to physically resist the Officers in any way, until Sergeant Hayes sought to handcuff Paul’s left arm which was sore and tender following a recent injury. As Paul sought to ‘protect’ his injured arm from being grabbed, twisted and cuffed, Sergeant Hayes, in Paul’s account, seemed to lose control of his temper and sprayed Paul in the face with CS gas, before wrestling him to the ground. As now witnessed both by Anna and by Paul’s parents – who had arrived at the scene following a distressed call from Anna – Sergeant Hayes held Paul down on the ground, with a hand around Paul’s neck, partly choking him and making Paul struggle to breathe.

Numerous other officers then arrived and Paul was manhandled in a Police van and driven to Skelmersdale Station.

Following the subsequent complaint to the Police made by Anna Ponting, the CCTV footage from the Station that night was preserved, and I can confirm that it shows Paul being brought in with obvious injuries before the Custody Sergeant. Paul, understandably incensed – though not foul-mouthed- about the treatment he had received protested about his unlawful arrest and assault and demanded to see a doctor. The response of the Custody Sergeant was to order Paul to be taken to a cell, where he was held- down by multiple officers, who stripped him naked and left him degraded and injured in the cell, with only a thin paper suit provided for him to cover himself. Watch the shocking video here. I consider this to have been an outrageous course of action which was completely unjustified, a subject discussed in my previous blog about this case.

Paul was left naked, humiliated and in physical and emotional distress for several hours in the cell before the Police finally called an ambulance to attend upon him, Paul having suffered chest pains which he feared were a heart attack. Footage from the cell shows officers visiting Paul whilst the ambulance was awaited, trying to persuade him to dress in the paper suit they had left for him. Paul strongly suspected that this was more for the benefit of the Police than him; i.e the officers did not want the paramedics to find a naked, injured man in the cell. When Paul who was frightened to move too much because of his chest pains failed to put the paper suit on, an officer contemptuously dumped it on his head. All of this can clearly be seen on the CCTV footage from the cell.

On arrival, the paramedics quickly assessed Paul as requiring transfer to hospital, and he was finally allowed to dress in his own clothes again and was taken to Wigan Infirmary for treatment, where he was kept in for monitoring until the afternoon of 20 June.

The photo below shows some of Paul’s injuries. It was taken by his wife Anna, whilst Paul was still under ‘Police guard’ at the hospital. I would ask you to reflect on the fact that this was the result of what the Police deemed to have been a “welfare visit” to his home…

Some weeks later, having been released on bail, Paul was charged with a variety of offences including disorderly behaviour contrary to the Public Order Act, assaulting Police Sergeant Hayes and ‘harrassing’ Detective Sergeant Langton, the officer with conduct of the investigation into Paul’s own harassment at the hands of his former employee.

Magistrates Court Trial

The charges against Paul went to trial at Chorley Magistrates Court on 28 November 2014, where I am pleased to say he was completely acquitted.

In order to acquit Paul, the Magistrates had only to find that the charges against him were not proven “beyond reasonable doubt” but in fact the Magistrates judgment showed that they very much favoured Paul’s version of events over that of the two Police officers. Amongst their findings, the Magistrates concluded the following –

• That emails Paul had sent to DS Langton did not constitute harassment and that the officer was neither alarmed nor distressed by them
• That Paul’s behaviour on the evening of 18 June 2014 was not disorderly, and that he had posed no threat to himself or any others, including the Police Officers
• That Sergeant Hayes was not properly acting in the course of his duty when he struggled with Paul, nor that the officer had reasonable grounds for arresting Paul.

Complaint Against Lancashire Constabulary

Within hours of the arrest, assault and strip- search perpetrated upon Paul, his wife Anna had lodged a complaint on his behalf with senior officers in the Lancashire Constabulary.

In my opinion, it would have been wise for the officers investigating Paul’s complaint to have reflected on the impartial conclusions reached by the Magistrates (as outlined above) and taken seriously the Pontings’ complaints about what had happened to Paul that night. In fact, sadly, but in my experience hardly surprisingly, Lancashire’s Professional Standards Department (PSD) chose to perform their usual manoeuvre of ‘circling the wagons’ and rebutting the complaint with the minimum of investigation. On 10 December 2014 a document purporting to be the final Complaint Investigation Report was sent to Anna Ponting, but it was, in fact, incomplete (missing pages). On 12 February a further (complete) copy of the report was sent. I was by now acting on behalf of Paul in regards to a claim for damages against Lancashire Police, and on review of the Complaint report I requested a re-investigation as there were blatant failings and errors in the investigation, most notably that the report was based only on the testimony of the Officers involved, whereas no effort had been made to take statements from other key witnesses such as Anna Ponting, Paul’s mother and father (who witnessed Sergeant Hayes’s shocking assault upon their son) and indeed Paul himself (a minor omission you might say…).

In response, on 18 June 2015 Lancashire PSD indicated that the Complaint was now been reviewed, and, indeed, they wrote again on 27 July, apparently acknowledging errors in the handling of the complaint. Paul and Anna took heart at this believing their Complaint would now be properly investigated, only to receive a further ‘slap in the face’ when Lancashire PSD declared on 22 September 2015 that following re-investigation, the Complaint was once against dismissed. Shockingly, it still remained the case that no statements had been taken from any of the Ponting family about the events in question. Then, in June 2016, following receipt of a formal letter of claim from myself as Paul’s solicitor, Lancashire Constabulary apparently changed tack again, indicating a further review of the circumstances surrounding Paul’s arrest 2 years previously would now take place…only to declare the following January, once again without any apparent effort having been made to gather/ consider the ‘missing’ evidence, that the Complaint was “investigated and finalised” (and still dismissed).

All of this was a very frustrating and demoralising experience for the Pontings, adding insult to a quite literal injury.

Claim Against the Police

The Complaint process having let the Paul down so badly, he felt he had no choice but to bring a claim for damages in the County Court. Accordingly, I commenced proceedings on behalf of Paul in June 2017 seeking compensation for false imprisonment, assault and battery occasioning physical and psychological injury and malicious prosecution.

As with the Complaint, the Police initially ‘circled wagons’ denying any wrongdoing on the part of any of their officers, and disputing Paul’s claims in their entirety. We were forced to litigate these proceedings almost all the way to Trial, incurring significant legal costs as a result, until in late Summer of this year the Police finally indicated that they were prepared to meet to discuss settlement terms, the results of which are spelt out above – a payment of £35,000 damages to Paul and a clear apology from the Chief Constable of Lancashire. I always strongly believed in Paul’s case and knew he would make an excellent witness should the matter come to Trial, as would his wife and parents. The evidence of his shocking treatment at the Police station was available for all to see. What is very disappointing is that the Police adopted such a combative, confrontational approach to Paul’s legitimate complaints, seeking to deny, delay and frustrate and only ‘paying up’ when Paul showed that he was prepared to ‘go the distance’ when his case against them was so strong, as reflected in the judgment given in the first place by the Magistrates Court, as well as the undeniable CCTV footage.

It is worth reflecting that the words chosen by the Chief Constable include a hope that Paul’s faith in the Police will be restored; indeed, that was all Paul ever wanted, to be able to place his trust in the Police and for the Police to approach complaints about their own officers in the same open-minded way they would approach complaints about a member of the public. Sadly this did not happen, as we have seen above, even when Lancashire’s PSD had several opportunities to put things right in responding to Paul’s official complaint. As I have said before, in Paul’s case and those of many more of my clients, the Police in adopting an unnecessarily obstructive and adversarial approach to the case, treating people like Paul as ‘enemies’, end up causing more heartache and alienating those who want to have faith in the Police – as well as wasting huge sums of public money in fighting cases that could have been dealt with by an early, full and honest apology.

I would (if you’ll excuse the pun) echo here the words I said to the Liverpool Echo in regards to Paul, but which would also apply to a great majority of my clients – the most important thing about this long overdue settlement is not the level of damages, it is first and foremost the apology which was sought, which goes some way at least to delivering a sense of justice being done – something which simply can’t be measured in money.

2nd October 2018 update

Watch the ITV news report which features Mr Ponting and my colleague John Hagan here.

 

Can a Breach of the Peace be committed by a person when they are within the boundaries of their own home?  And what powers do the Police have to enter your home under Section 17 of the Police and Criminal Evidence Act (PACE) following a report of a “domestic”?  These are all questions which I address in my blog today, by reference to a case I have recently concluded. 

According to an article in Psychology Today (posted on-line 04/02/18), arguing can be beneficial to relationships in that such conflict can “facilitate talk and awareness of another’s perspective”.  But can an argument in the domestic realm between partners qualify as ‘abuse’ and justify police intervention and arrest? 

In the modern world, Police Officers are taught that they have a duty to take positive action when dealing with domestic abuse incidents to ensure the safety of the victim and any children. 

More often than not, the Police will be responding to a call from an alleged victim or from a neighbour.  Their primary role, to begin with, is to investigate and to assist in this respect, the officers can rely upon Section 17 (i)(e) of PACE which allows them to enter premises (within certain constraints)… for the purpose “of saving life or limb or preventing serious damage to property”. 

This particular section of PACE was judicially scrutinized in the case of Syed v DPP 2010 where it was held that officers seeking to effect entry under Section 17 must be concerned that there is a real threat to life or limb, a fear that something has happened or may happen which would involve serious injury to a person.  A concern for welfare generally was not sufficient to enter premises, it was simply too low a threshold. 

I have recently concluded a claim on behalf of Robert of Northamptonshire.  At the time of the incident, he and his wife had been married for 2 years.  One evening, they went out for a drink.  Robert had approximately 3 pints of beer and his wife had drunk wine.  They returned home at about 9pm.  They had a minor argument about the fact that he wanted to stay for a further drink and she did not.  The row lasted a few minutes but they both calmed down and Robert’s wife went upstairs to get changed for bed.  After a short while, there was a knock at the door. Robert went to answer. 

Robert’s neighbour had heard the argument and called the Police, and two male officers, PC A and PC B responded to the call.  

What happened next was captured by one of the officer’s body cameras. 

On arrival, the house was quiet and when the front door opened, there was no noise from within and Robert was calm.  

The officers asked if they could enter. Robert asked why. The officers explained that a report had been received which they needed to follow-up on, specifically that they needed to check on Robert’s welfare and whoever else was in the house. Robert advised that he had a row with his wife but the officers were not welcome to come in. 

In response, PC A advised that the officers would be entering under Section 17 of PACE ‘to check on welfare of people’ and with that, crossed the threshold into the house. 

The act of Police entry clearly agitates Robert who begins to shout and swear that the Police have no right to enter. 

PC A advises that he and his colleague are entering under Section 17 and that should Robert continue, he will be arrested for Breach of the Peace.  

Robert continues to shout and swear and argues with the officer maintaining that he cannot be arrested for Breach of the Peace in his own home (note that this was actually a misunderstanding of the law by Robert as I will explain below). In light of his behaviour, the officers decide to handcuff Robert ‘for officer safety’. Of interest, PC A radios to Force Control and states that although a male at the address has been placed in handcuffs due to his aggressive behaviour, he is not under arrest. 

Meantime, hearing the commotion, Robert’s wife came downstairs. PC B tries to speak to Robert’s wife to see if she was ok but Robert continues to argue with the officers. After a few minutes, PC A advises Robert that he is now under arrest to prevent a further Breach of the Peace and he is escorted from the house to a patrol car outside. 

Understandably, Robert’s wife is upset. She is asked to explain what had happened, she explained that she and Robert had had a verbal argument only. It is clear that no offence had been committed before the arrival of the officers. 

Robert remained highly agitated and a decision was made to transport him to his nearest Police Station where he was kept in overnight and released without charge the next day. 

As was made clear by the decision in Syed, the officers’ entry into Robert’s home was unlawful.  On several occasions, the officers asserted that entry was necessary to “check on the welfare” of the occupants. That was simply too low a threshold to allow them to force entry under Section 17 of PACE. 

Of course, it was the officers’ decision to enter the home that upset Robert and caused him to shout, swear and argue and ultimately caused the officers to handcuff him and to then arrest him for Breach of the Peace.  

But even then did Robert’s behaviour warrant arrest? Breach of the Peace has been defined as having occurred “whenever harm was actually done or was likely to be done to a person, or in his presence to his property, or a person was put in fear of being so harmed through an assault, affray, riot unlawful assembly or other disturbance” per the case of R v Howell [1982] QB416.  Here, there was no violence or threat of violence.  (Note, however, that there is nothing the definition that says that a Breach of the Peace cannot happen in a private home.) 

When I reviewed the facts of Robert’s case, it was self-evident that the officers’ entry into Robert’s home was unlawful, and thereby constituted a trespass, as was his subsequent arrest (either because it arose specifically because of the officers’ unlawful entry or because his behaviour did not constitute a Breach of the Peace). 

Following an investigation by Northamptonshire Police, I am pleased to report that they agreed with my analysis. Although they quickly admitted liability, it took protracted negotiations before they agreed to pay Robert £9000 plus his legal costs (after having initially offered him only £1800 compensation). 

Robert was a little apprehensive when first considering pursuing a claim.  He felt that he had let himself down when reacting to the officers’ entry into his home. I don’t agree. Robert was asserting an ancient right; that an Englishman’s home is his castle and that he is entitled to protect it and all those within.  Our rights of privacy in our homes are not to be tramped over lightly, and a law (Section 17 of PACE) designed for real life-threatening emergencies  should not be allowed to become watered down through common usage so that it becomes a general power for Police to enter a home following nothing more than an argument between the occupants.  Robert was quite right to fight – and win – this case.

I am pleased to report that I have recently settled claims for two victims of DC McMillan, a Merseyside Police Detective  who abused vulnerable women who had sought help from the Police in response to domestic violence from their respective partners.  I have previously written about what happened to the women (click here).

DC McMillan was a Detective in the Merseyside Police Family Crime Investigation Unit.

In April 2016, DC McMillan was sentenced to four years in prison for targeting vulnerable women for his personal sexual gratification.

According to local Media reports, DC McMillan admitted misconduct involving seven victims.

I was contacted by two of the victims and after instituting Court proceedings, I can confirm that both have now received substantial payouts.

The compensation awarded will now go to assist and help the women to overcome the trauma they have suffered; the settlement payment included an allowance for the cost of Cognitive Behavioural Therapy that had been recommended by a Psychiatrist who had examined the women.

Although I am pleased to have helped these two women, I am concerned that McMillan’s other victims are yet to receive any form of relevant and much-needed support.

Who are the other victims?  DC McMillan admitted abusing 7 women in total so that means there are 5 other women.

However, I suspect that there are other women out there who either refused to assist in the criminal prosecution of DC McMillan or could not be identified and are simply unknown.  The fact is that we simply don’t know how many other women DC McMillan abused.

This is particularly relevant as in my experience corrupt Police Officers like DC McMillan are serial offenders and further, the sad fact is that  many women who have been abused by a Police Officer don’t step forward and actively report their abuser. There are many reasons for this including low self-esteem, shame, denial and a general feeling of hopelessness, and helplessness, and a fear of the consequences. Will they be believed ? What I would like to say to these women is “Yes, you will be.” If you have the courage to step forwards, we can put right the wrongdoings committed by McMillan and other predatory officers like him.

In my experience abusers like DC McMillan are often ‘discovered’ by accident.

In this case, Merseyside Police in June 2014 were alerted to the fact that a 17-year-old girl had been reported Absent from Care from the care of Cheshire Social Services.  Whilst she was absent from this care, the girl’s mobile phone was examined and it was found that the  girl had been messaging an unknown Merseyside Police Detective.   Subsequent enquiries revealed this Officer to be DC McMillan.

Following this, Merseyside Police Anti-Corruption Unit (ACU) commenced an investigation into the conduct and activities of McMillan.

Analysis of Detective Constable McMillan’s mobile phone identified that there was a vast amount of data, inclusive of text messages, iMessages, WhatsApp and social networking conversation to many different females.

It was discovered that McMillan had come into contact with these women as he had been the Officer in Charge of their investigations when they had been subjected to domestic violence at the hands of their partners.

All of the identified females were vulnerable due to the very nature of the circumstances which led them to meet Detective Constable McMillan.  A number of the females were victims of on-going  domestic related incidents and had contacted the Police as a last resort for help. McMillan was now placed in a position of considerable influence and power over them, as the representative of the Police authority to whom they had turned for help in dire straits, and he callously exploited his position and their vulnerabilities for his own sexual gratification.

It is very important I think to highlight these cases and to ensure that they get a good level of publicity, to shine a light on the behaviour of a certain category of predatory individuals like McMillan who hide within the uniform of a Police Officer and exploit the power and opportunity their position gives them.

Increased reporting of cases of this nature will hopefully get the message out to individual victims of such rogue officers that they are not alone and that their abuser can be held to account and they can receive just and fair compensation, which will go some way at least to healing the harm done to them.

It is several years since I blogged on the introduction of Body Worn Cameras for Police Officers (click here).

At that time, I positively welcomed the introduction of this technology which I felt could help re-establish public confidence in the Police.  The danger I foresaw however was that officers could turn the cameras on and off as they chose rather than there be a mandatory rule that such cameras be turned on during any interaction with a member of the public.

Fast forward to November 2017.  Trials for Body Worn Cameras had been conducted and were seen as a success and so Body Worn Cameras had been extended to most, if not all, front line officers in the Metropolitan Police  and a large number of regional forces including West Midlands Police.  Indeed, in a report dated 7 November 2017, the Strategic Policing and Crime Board for West Midlands Police reported that in partnership within Cambridge University,  they had proof that in cases involving Body Worn Cameras, charges (against suspects) had increased, suspects were more likely to plead guilty early, complaints (against officers) were down and the use of force required to be employed by officers was reduced.

Given those findings, the Board had no doubts  that the benefits to the force from the roll-out of Body Worn Cameras to all front line officers were clear.

All  of this seems perfectly understandable and believable,  BUT “benefit realisation” as the report warned was conditional on high “Body Worn Cameras compliance”, i.e. only if the officers use the technology, will the force see the benefits.

Of interest, a short time before the publication of this report, but after Body Worn Cameras had been issued to all front line officers and those officers had been trained,  5 of West Midlands finest were called out to a report of a ‘domestic’ involving one of my clients.   My client had had an argument with his adult daughters and they called the Police.

Following enquiry, a decision was taken to arrest my client, who I’ll refer to here as Abdul.  Let me stress, neither I nor Abdul have any issue about the decision to arrest; it was justified and lawful. What is in issue is the level of force  used by the officers both on arrest and afterwards at the Police Station.

My client states that upon arrival of the officers at his address, he was midway through a telephone conversation and proceeded down a flight of stairs to meet the officers.

So that he could conclude his telephone conversation (with his sister-in-law) my client sat several steps up from the bottom of the stairs.  As his conversation continued, a female police officer proceeded towards my client and snatched his mobile phone away.  It should be noted that this action was prior to my client being placed under arrest.  Accordingly, my client was well within his rights to complete his telephone call.

As my client stood to his feet, 2 uniformed police officers surged towards him, grabbing him by both arms and manhandled him down the stairs.  My client was shocked by the prematurely aggressive force shown to him.

My client disclosed that he suffered from a previous shoulder injury, but to no avail.  He was then handcuffed in the front position.

My client was taken through the property and to the  police vehicle, parked outside.  Upon arrival, my client was pushed, face first, up against the vehicle while he was searched.  My client did not offer any form of resistance to the officers, at any time.

Following search, my client was shoved into the rear of the police vehicle.

My client was subsequently escorted to his local Police Station where he was booked into custody.  At some point, my client was told to remove a ring from his finger.  My client specifically told the officers that this could not be removed easily and would require some form of lubricant, to loosen the jewellery.  Despite this, the officer then repeatedly tried to remove the ring with brute force, causing my client to sustain a cut to his finger.

Subsequently, I filed a complaint against West Midlands Police as regards what I and my client believe to be the excessive use of force by the arresting officers.

Anyone familiar with Police complaint process will no doubt share  my concerns  as regards the impartiality of that  process and it came as  no surprise to me  that when West Midlands Police published their investigation report,  each and every one of my client’s complaints were rejected.

What was surprising, given the date of incident and given the deployment of Body Worn Cameras to all officers by that time, that none of the 5 officers involved activated their cameras at any time during the incident.

All of the officers disputed my client’s account and so of course, in the absence of Body Worn Camera footage, the officers evidence was preferred to that of my client and his complaint of excessive force used upon arrest was dismissed.

Of course, activation of any one Body Worn Camera would have made “any subsequent investigation more straightforward” but the fact that this did not occur  was excused by the Police on the grounds that  use of Body Worn Cameras was not at the time of incident “culturally embedded”.

I mentioned that my client also complained that excessive use of force was also employed at the Police Station.  My client contacted me shortly after the incident and I went to great lengths to ensure that custody CCTV was preserved (Police Forces have a nasty habit of wiping such footage after 31 days or of otherwise conveniently losing it).

In West Midlands Police’s first investigation report, I was pleased to note that such footage had been preserved and had been viewed.  Sadly however the West Midlands Police Investigator failed to address this aspect of the complaint and so it was necessary to appeal.

On appeal, West Midlands Police did address this aspect of the complaint.  This time however the Investigator forgot that this footage had been preserved and asserted that the footage was “no longer available. Of course, in the absence of any other evidence, my client’s complaint was not upheld on the basis that “the officers performance” was “satisfactory”.  In the circumstances, a further appeal has been lodged reminding West Midlands Police that the custody CCTV footage was preserved and can and should be viewed to properly determine the complaint.

Modern technology (Body Worn Cameras and Custody CCTV) is all very good when deployed, preserved and viewed (!) but this case once again proves that technology is not a panacea and what is really required is a change of culture where Police Forces adopt a robust complaint system that is open and transparent and where Police Officers are genuinely held to account. What a very lop-sided picture we see when only one side in a potential conflict is in control of whether or not to turn the cameras on …

All names changed.

Update

I am pleased to confirm that, after the institution of Court proceedings, West Midlands Police agreed an out-of-court settlement together with my client’s legal fees.

In the news recently has been a proposal to provide the Courts with greater sentencing powers for people who are found to have injured a ‘Service Animal’ in the course of its duty i.e a Police dog or Police horse.

Emotively known as ‘Finn’s Law’ in reference to a Police dog who survived a knifing whilst protecting his handler, the proposed legislation – formally entitled the Animal Welfare (Service Animals) Bill – was introduced as a private member’s bill but was derailed following an objection from Tory MP Sir Christopher Chope, and so will have to be reintroduced next month. Time will tell whether it does become part of the established law of the land.

One thing that has struck me in reading reports about this proposed new law, is that a lot of those reports rather misleadingly suggest that a person who harms a Police dog can only be charged with Criminal Damage, which carries a maximum sentence of 6 months in prison. This is not true; a charge could also be brought of causing the animal unnecessary suffering under the Animal Welfare Act 2006, and this carries a potential 51 week sentence of imprisonment with it; further more, an offender who used a knife to harm the animal (as in Finn’s case) could already be charged under S.139 of the Criminal Justice Act 1988 or S.1 of the Prevention of Crime Act 1953, with possession of a bladed instrument/ offensive weapon, and such a charge carries a potential 4 year custodial sentence.

So I do question whether the Bill is actually necessary; new legislation should be introduced to fill real gaps in the law, not as emotive ‘PR’ stunts…The Bill as it stands is very short and does not in itself change the maximum custodial sentence which can be given under the Animal Welfare Act. All that it does is to clarify that a person cannot claim ‘self defence’ as a justification for inflicting suffering upon a Police dog (or other service animal) IF the animal was at the relevant time (a) under the control of a Police or Prison officer AND (b) the officer was acting in the course of his duties and using the animal in a reasonable way. What does this add to the existing legislation? The ‘self defence’ argument would only be available if it was also found that the suffering inflicted on the animal was ‘necessary’, proportionate and could not reasonably have been avoided. It surely goes without saying, and without any amendment to the existing law, that if an officer acting legitimately in the course of his duties was ‘deploying’ a Police dog to track or bite an offender in a reasonable manner, then logically all suffering inflicted on the animal by the suspect would by definition be unnecessary.

In other words the new Bill appears to be saying…if the injuries are inflicted on a Police dog are not necessary…then they are unnecessary.

Hence my concern that this whole piece of legislation is for ‘Political’ purposes, as oppose to legislative needs.

It is also very easy to be caught up in the hype of this type of case, and anthropomorphize Police dogs with words like ‘hero’ whilst forgetting that they are animals trained to cause potential severe injuries, and without proper training and supervision can cause serious harm not only to ‘criminals’ but to innocent members of the public.

This comes to my mind as I have recently concluded two separate cases involving vicious and unprovoked attacks not upon Police dogs, but by those animals upon innocent members of the public.

The first case involved a 13 year old girl in Derbyshire who was attacked by a Police dog, who had escaped from the kennel in which he was kept at the home of the Police officer who was his handler. My client who was then subjected to an unprovoked attack by the dog whilst walking along the street with her friend, was left with permanent scarring to her arms and legs (and understandable mental scars as well), and she was not the only person so attacked as the dog roamed the street for several hours. I am pleased to report that I have recently concluded my client’s case for £35,000.

In that case, the Police force admitted liability in negligence at a relatively early stage, though they nevertheless offered no apology to the girl and tried to keep from her and her family the details of how and why the Police dog had come to be loose in the streets.

In the second case I have recently concluded, the Police Force in question put up a much greater fight over liability – and it was only after I had obtained extensive disclosure of the police dog’s records that they ‘caved in’, for reasons which I think will become clear as I set out the facts of this matter below.

Severe Injuries from Unprovoked Police Dog Attack

My client, who I will identify as “Andy” for the purposes of this blog, was minding his own business in a suburb of Oxford when he was attacked by a police dog who had been released by his handler to chase a man suspected of involvement in a burglary.

The dog handler lost sight of his dog, who then launched an unprovoked attack upon my client causing serious wounds to his arms and legs.  Such was the ferocity of the attack that at one point Andy even feared for his life and unsuccessfully used force to try to get the dog off him (hitting the dog’s head with his hands).

To add insult to injury, when the police officer belatedly arrived at the scene and called his dog off, he then promptly arrested Andy on suspicion of being the man wanted in connection with the burglary and Andy was hauled off to the police station – although he was not there for long before they had to transport him to hospital for treatment for his injuries.  Thereafter, he was, of course, released without charge because he was not the man the officer had been looking for.

I have to say at this point, that the officer’s actions on finding Andy and immediately arresting him do fit with a mindset which I often see in cases I handle, whereby if a police officer (or animal as it was in this case) causes someone injury the response is to then arrest that person to try to provide some ‘justification’ (or perhaps a ‘smokescreen’) for the violence inflicted upon them.

Andy (understandably) instructed me to pursue a claim on his behalf against Thames Valley Police, and during the course of my investigations I obtained disclosure of the training records and dog bite reports for the police officer and police dog ‘team’ involved in this incident.  I have to say that this disclosure was not provided easily or promptly by the police, and I was required to chase them on several occasions to obtain the full picture.  Some of the entries which I will identify below from this particular police dog’s records may indicate why Thames Valley Police were reluctant to release them.

For example, I identified that the dog had bitten 12 people over a 3 year period which in my experience is an unusually high number even taking account the nature of the dog’s work.  In a statement, the dog handling officer asserted “police dogs rarely bite people” – something which did not appear to be true in regards to his own animal on the basis of those statistics.

In an earlier incident in April 2012 the records showed that the dog had gone underneath some stairs in a block of flats to locate a suspect and had bitten the suspect on the arm.  There was no evidence whatsoever that the suspected offender had been attempting to escape or that he had attacked the dog, and therefore this bite may very well have been unprovoked.

Obviously, out of character incidents, and accidents can occur, but sadly this was not an isolated incident and, as later events will show, I believe that the safety and training section of Thames Valley Police thereafter let down and failed to properly support and protect the dog, his handler and several members of the public, including my client.

The records showed that the operational licence for this team of officer and dog was indeed withdrawn in November 2012, some 8 months prior to the incident with my client Andy.  This was as a result of a safety issue involving the dog biting in a situation where he should only have barked.

Police dogs are specifically trained to bark to call their handler’s attention once they have located and ‘cornered’ a suspect, and are not supposed to bite unless the suspect attempts to flee or to attack them.

Clearly this was a further point of concern, but following remedial training, the officer and dog were re-licensed for operational duties 2 weeks later.

However their operational license was again withdrawn in June 2013 following an incident when the police dog was found to have ‘self deployed’ over and above what he was trained to do – in other words to have delivered an unnecessary bite to another ‘cornered’ suspect, rather than just barking to alert his handler (who was very close by) and ‘guarding’ the suspect.

When a police dog teams’ operational licence is withdrawn, guidance contained within the National Police Dog Assessment Model requires that re-assessment be undertaken within the next 30 days following remedial training.

Accordingly an assessment of the team took place later in June 2013 (only a month before the attack on Andy) as a result of which the officer and dog were re-authorised for operational duty notwithstanding the following comments made by their training manager – We identified the dog is still looking for a quick reward and to some extent appears to have been conditioned for it.  If the reward is not evident he will either commute back to the handler or look to self reward on the criminal. 

To explain, ‘self reward on the criminal’ is a well known term in policing circles and means exactly what you might suspect it does – that the dog takes a bite or bites out of the suspect, even a suspect who is not attempting to flee or resist the dog, simply in order to satisfy its animal instincts.

This was a very serious finding, and I was shocked on reading this report to discover that the dog team had been returned to operational duty with such an issue unresolved.

Yet another completely unjustified biting incident occurred in November 2013 when the dog reacted to a person who was walking up behind him and his handler (and who was in no way a suspect for any criminal offence) by biting this unfortunate passerby.  Once again the dog team was suspended from duty, and this time action was taken to place the dog with a different handler in January 2014.

Clearly, in my opinion, this is something which should have been addressed back in June 2013 when the trainer had clearly identified the issue of the dog ‘self rewarding’ or biting without justification.

Sadly no such action had been taken and this dysfunctional police team – comprising in my opinion a dog who was too prone to bite with a handler who had insufficient control over his animal – were allowed to patrol the streets, resulting in the savage attack upon Andy in July 2013.

Once I had obtained full disclosure of all of these records, it may not surprise you to learn that Thames Valley Police soon came to the negotiating table and agreed to pay Andy £10,000 in regards to the injuries inflicted upon him, in respect of which he had been left with permanent scars on his arms and legs.

The law is always a balancing act. Clearly courageous officers and service dogs are entitled to respect and protection in law from criminal violence; but on the other hand there are many occasions when through malice, incompetence or poor training, the perpetrators of unnecessary violence are the police officer and his animal, and the victims of those acts of unlawful violence need their rights protecting as much as Police Dog Finn and his handler.

What does it take to establish a breach of your Right to Private and Family Life  as  protected by the Human Rights Act?

This was the question at the heart of a case of mine which concluded at Liverpool County Court earlier this week against Merseyside Police and which the Police Force chose to use as a test case.

Article 8 of European  Convention on Human Rights provides:

“Right to respect for private and family life 

1. Everyone has the right to respect for his private and family life, his home and his home and his correspondence. 

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.

The facts

My clients, husband and wife, Richard and Michelle Hall live in St Helens, Merseyside with their children. (Mr and Mrs Hall have kindly given me permission to use their details.)

On 4 December 2015,  Mr Hall was arrested and detained by the police.

During the course of Mr Hall’s  detention in police custody, Merseyside Police Officers, including  PC Allen carried out a search of Mr Hall’s home address.

Upon Mr Hall’s release later that day, he viewed his home CCTV and was concerned about what he saw, believing that the search was conducted in a disrespectful and unprofessional way and that during the search PC Allen had taken a packet of crisps from his home. (Watch the CCTV footage on the Liverpool Echo’s website.)

A few days later, Mr Hall made a Police complaint against PC Allen about the conduct of the search (“the first complaint”).

The complaint was investigated by Merseyside Police’s Professional Standards Department (“PSD”).

During the course of the investigation into the first complaint, PC Allen was placed on restricted duties. PC Allen was also interviewed.

On 11 February 2016, PC Allen was informed that he was no longer being investigated in relation to the first complaint and that the restriction on his duties had been removed.  One of the findings was that whilst PC Allen had been eating crisps during the search, he had not stolen them from the Halls.

At or around 07:30 on 12 February 2016,  Mr Hall left the premises to take his children to school.

Shortly after 08:00, Mrs Hall, who was upstairs at the time, noticed a police vehicle parked outside.

The driver of the police vehicle parked outside of the premises was PC Allen. He was with a fellow officer, PC J.

Mrs Hall got dressed, went downstairs and went outside.

Upon closer inspection of the police vehicle, Mrs Hall  was surprised, alarmed and upset to see PC Allen in the van (whom she recognised from the CCTV footage of the search on the 4 December).

Mrs Hall tried to attract the attention of the officers in an attempt to establish the reason for their presence.

Neither officer acknowledged Mrs Hall.

Mrs Hall returned inside and called her husband and informed him of PC Allen’s presence outside. She felt intimidated and was extremely upset.

PC Allen and PC J remained outside of the premises for approximately 13 minutes.

By the time Mr Hall returned to the premises, PC Allen and PC J had driven away.

On 13 February 2016, Mr Hall  made a further police complaint and alleged that PC Allen’s conduct on 12 February 2016 amounted to harassment (the “second complaint”).

Mr Hall’s second complaint was again investigated by Merseyside Police  PSD.

On or around 22 February 2016, the investigation report into Mr Hall’s first complaint was sent to him and he was informed that his first complaint had not been upheld and/or that there was no case to answer, except for Mr Hall’s allegation that PC Allen had failed to leave a copy of the search record at the premises, prior to leaving, which was upheld. PC Allen was deemed to

“need no more than words of advice regarding the importance of documenting all items any damage caused and the correct process regarding the completion of the PCE 10 search record”.

On 10 March 2016, PC J provided an account to Merseyside Police PSD, in which she stated that PC Allen had made the decision to park up at the premises on 12 February 2016. PC J further stated that she did not personally have any enquiries to conduct in the area that day.

On 12 March 2016, PC Allen provided an account to the PSD in which he claimed to have gone to the area to engage in high visibility patrol on 12 February 2016. PC Allen further stated that he had parked the police vehicle outside the premises as he had “finished late the night before and thought that an opportune moment to complete [his] notebook”. PC Allen confirmed in that account that he was aware that Mr Hall lived at the premises, as he had performed a search of the premises previously.

On 21 June 2016, the investigation report into Mr Hall’s second complaint was sent to him and Mr Hall  was informed that his complaint against PC Allen of oppressive conduct/harassment had been upheld and that PC Allen was deemed to require management action. In particular, it was found that PC Allen and PC J had been tasked to respond to another job whilst they were parked outside the Hall’s home but  had failed to do it immediately. The following was also stated in the investigation report:

“…It is…reasonable to believe that the only logical explanation that Constable  Allen has parked outside the Hall’s home address is to either cause annoyance, in response to the complaint made against him previously by Mr Hall, or because he himself was annoyed because of the serious allegations which had been made against him and, the more serious ones had not been proven…”

Was Article 8 engaged?

In order for there to be a Breach of the Right to Privacy, a minimum threshold has to be met.  The Human Rights Act “is not a panacea for every ill”, per Sedley L.J. in A. v. Essex CC (2008 ) EWCA Civ 364.

What is the basic  minimum for Article 8 to be breached?  The phrase used is “a minimum level of seriousness”.

In R (Gillian) v Commissioner of Police of the Metropolis [2006] 2 AC 307, Lord Bingham said,

“It is true that ‘private life’ has been generously construed to embrace wide rights to personal autonomy.  But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage in operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms……”

Here, the issue was whether Mr and Mrs Halls’ rights had been interfered with.

The definition of interference is “the act or an instance of hindering, obstructing or impeding”.

Merseyside Police argued that Article 8 was not engaged because there was no evidence of invasion or intrusion into the Hall’s family life; PC Allen had parked up on a public road outside the Hall’s home but had not blocked their driveway and prevented them from coming or going; at no time did PC Allen or PC J go into or approach the Hall’s home, nor was either Mr and Mrs Hall summoned out of their home;  and yet further, at no time was any word or gesture made towards either Mr or Mrs Hall by PC Allen or PC J.

Notwithstanding those valid points, PC Allen had deliberately parked up outside the Hall’s home address a day after being told that Mr Hall’s complaint had been resolved and that he was back on full duty.

The situation was analogous to Police surveillance which is clearly an interference in a persons’ private and family life, though here we argued PC Allen’s intention was to be overt rather than covert to convey the message “I’m not going to forgive and forget.”

So, if interference could be established, could PC Allen prove that he was outside the premises for a genuine policing purpose and not for any improper purpose or motive?

In response to Mr Hall’s first complaint, PC Allen had asserted that he had a legitimate reason for parking up outside the Hall’s home address; that he was in the vicinity carrying out high visibility patrol.  He claimed that he was aware of and had had experience of people living in the area defrosting and demisting their cars on driveways by leaving their cars unattended with their engine running and that such vehicles were “easy pickings” for opportunistic car thieves.  As he drove around he remembered that he had not completed his pocket note book from the previous day.  In the circumstances, he decided to pull up, “electing a safe place …… to stop”.  By sheer coincidence, it was immediately outside o the Hall’s home address.  Having so parked up, and having completed his pocket notebook entry, he observed a man delivering papers.  As he did so, the man left his engine running and so PC Allen advised him he was committing an offence.  PC Allen obtained the man’s personal details and carried out a radio check to ensure he was insured.  He was and so PC Allen gave him  some words of advice and allowed him to continue. Thereafter, the officers were passed a job over the radio; to obtain a witness statement. The circumstances were complicated and it would be necessary to refer to the Police database . PC J attempted to access the database via her laptop but couldn’t get a connection and so the officers returned to the Police Station.

So, PC Allen’s policing purpose for being in the vicinity  was because of concerns about opportunistic car thieves.  At that morning’s briefing, there had been no tasking for high visibility patrol.  Further, according to PC Allen, he did not share his concerns with his colleague PC J. Yet further enquiries with the Police Intelligence System revealed one theft of a motor vehicle in the area.  There was no simply no evidence that such thefts was an issue or high priority.

In the circumstances, it was clear to me that it was PC Allen’s decision to patrol  the area that morning and there was no evidence to support the reason he gave for going there and therefore no legitimate reason for his presence.

Her Honour Judge Sykes agreed and in Court ruled as follows:

“In my judgment, if powers of police are used arbitrarily, without legitimate cause, that engages Article 8.  The Claimants’ submit that this case is analogous to covert surveillance. I agree that this is an appropriate analogy.  A duty of respect is imposed under Article 8, it calls upon the Police not to carry out acts to intimidate or cause anxiety.  I am satisfied that Article 8 is engaged.  I am also satisfied that the Defendant has failed to show that the interference was in accordance with law and in pursuance of legitimate and proportionate aim”.

Merseyside Police have, in response, indicated that they may seek leave to appeal the Court’s decision.

I have no concerns if they do;  I am very confident that Her Honour Judge Skyes’ findings would be upheld by the Court of Appeal, and the authority in that Higher Court would be an even stronger guarantee of peoples’ rights in the future.

 

As a specialist Actions Against the Police Solicitor, I pursue numerous claims on behalf of my clients for damages under the tort of False Imprisonment ie compensation for my clients being subject to unlawful detention whether that detention is 5 minutes, 5 hours or 5 days (etc).  By their very nature, the majority of these cases are brought against police forces who routinely subject people to deprivation of their liberty whether relatively briefly during a stop on the street or for much longer periods, by holding people in police cells for several hours/days. 

It is therefore natural for claims for False Imprisonment, sometimes colloquially referred to as “unlawful arrest”, to be associated primarily with the Police.  

However, just as any of us can be the victims of False Imprisonment, so equally any of us can commit this tort, whether we are Police officers or not, if we subject another individual to deprivation of their freedom of movement without a legal basis to do so.

 I have previously blogged about a case in which I successfully recovered damages from a taxi firm after one of their drivers locked my client in his cab because she had insufficient money to pay the fare. 

 Another, and even more common example, of a False Imprisonment claim where the Defendant is not the police is the case I am going to talk about today, where my client was detained and then ejected from a Burger King restaurant by a Security Guard.

It is of course perfectly valid for any of us – whether it is in the course of our private lives, or through the course of our employment (such as security personnel) –  to use force to restrain, detain or eject a person from premises if there are lawful grounds for doing so such as self defence, or to prevent that person from committing a criminal offence or a Breach of the Peace, or to restrain them until the police can arrive (the so-called ‘citizen’s arrest’).

It is, for example, valid for security guards to detain a suspected shop lifter, provided there are reasonable grounds to suspect that such an offence has been committed.

However, in the case I am blogging about today, it was quite apparent that there were no reasonable grounds for the security guard’s actions against my client. 

My client, who I shall refer to as Rebecca, was a young woman out with a group of friends, attending a music concert in Liverpool City Centre.

In the early hours of the morning, having left the concert my client and her two female friends entered the premises of the Burger King restaurant.

My client and her friends, in good spirits, ordered and were served food and sat down at a table in order to eat. 

The Burger King restaurant was at the time being patrolled by a Security Guard in a high visibility jacket. 

Whilst sitting and eating her food, Rebecca was aware of some other young women (whom she did not know) who were sitting at an adjacent table. 

One of the girls at this other table then threw some food (believed to be a single French fry) towards the Security Guard who was standing at the food service counter, with his back turned to the customers. 

During the subsequent course of the claim, I obtained the CCTV video footage of this incident from the restaurant’s security cameras, and from this footage it was clear that the security guard did not and could not have seen who had thrown the chip at him, but on turning around he immediately marched up to my client in the apparent (mistaken) belief that it was her.  There was no objective reason why the Security Guard should have picked my client out from amongst all the other customers who ‘could’ have thrown the chip at him.  Sadly, he had jumped to the wrong conclusion and was ignoring the real culprit.

My client tried to explain to the Security Guard that it was not her who had thrown the food at him. 

The Security Guard refused to listen to Rebecca and instructed her to leave the premises.

As it became clear to Rebecca that the Security Guard was not going to accept what she was saying, she stood up, and picked up her handbag with the intention of leaving the premises, albeit under protest.

Rebecca did continue to protest her innocence to the Security Guard, understandably frustrated at being treated so unfairly, but did not refuse to leave the premises.  She was now on her feet, and having collected her coat (which had been laid on the table) was preparing to leave, whilst making it very clear to the Security Guard that she had not thrown the food and she felt his behaviour to be entirely unreasonable. 

The interaction between the Security Guard and Rebecca had not lasted very long – from the CCTV footage it is clear that no more than 2 minutes past since the initial ‘chip throwing’ incident-  when the Security Guard, apparently unhappy at Rebecca’s continued protests of her innocence, suddenly and without warning seized hold of her by her left arm. 

Rebecca instinctively tried to pull away but the security guard’s grasp was too strong and powerful and she could not escape from his grip.

The Security Guard then twisted Rebecca’s arm up behind her back and force-marched her towards the exit from the restaurant.

Rebecca was immediately aware of pain in her left arm and recalled calling out in pain but the Security Guard would not release his grip upon her.

The Security Guard kept hold of Rebecca, before ushering her out of the door onto the street.

Rebecca’s two friends, who had tried to come to her assistance in view of the assault being perpetrated by the Security Guard, were then also ejected from the premises by him.

In a state of understandable shock and distress, and experiencing pain and discomfort to her left arm, Rebecca then took a hackney cab to the Accident and Emergency Department at the local hospital for medical treatment and advice.

Whilst it is immediately apparent from these facts that Rebecca would have a claim against the Security Guard (and hence his employers) for assault and battery occasioning personal injury (the Guard’s manhandling of her left arm) I also knew at once that Rebecca had a valid claim for False Imprisonment.  This arose from the moment the Security Guard laid hands on her and compelled, or force-marched, her to go towards, and then through the door from the restaurant into the street outside.  During this period – albeit that it lasted less than a minute – she was completely deprived of her freedom of movement; loss of liberty is not just when you are held in one place -classically a locked cell with no means of escape-  but also applies if you are being forced to move by a person against your will. 

I advised Rebecca that it was correct for her to bring a claim not just for personal injury, but also for False Imprisonment as although the damages payable for a loss of liberty of less than a minute are not especially high, a successful claim in the tort of False Imprisonment also gives rise to a potential higher tier of damages known as Aggravated damages. 

Aggravated damages apply where a person has suffered a gross affront to their personal dignity and integrity and/or has suffered from arbitrary, intimidating and oppressive behaviour, and includes compensation for such things as injury to feelings, public humiliation, distress, indignation and other mental suffering not amounting to psychiatric injury. 

Pursuant to the case of Thompson & Hsu v The Commissioner of Police of the Metropolis [1998] QB 498 the level of an aggravated damages award begins at £1,000 (to be updated for inflation since 1997) and can rise as high as twice the ‘basic’ amount of damages (ie the ordinary compensation awarded for the other elements of the claim such as injury and the duration of the False Imprisonment itself). 

It is a discretionary award and is not granted in every case but I felt that Rebecca had a strong argument in view of the unpleasant treatment that was meted out to her.

In response to the claim which I brought on behalf of Rebecca, the Security Guard’s employers initially denied any wrongdoing on his part and refused to offer compensation.  I subsequently issued County Court proceedings against them and I am pleased to report that prior to trial we achieved a settlement of £7,100 on behalf of Rebecca which I believe reflected fair compensation for the wrongs which had been committed against her. 

If you have suffered False Imprisonment at the hands of staff members or security personnel in a store or restaurant please contact me for advice.  As in Rebecca’s case, it could well be worthwhile in pursuing a claim even if the period of False Imprisonment was not especially long.  Everybody is entitled to respect for their bodily dignity, integrity and personal liberty and it is through the enforcement of valid False Imprisonment claim such as Rebecca’s that these standards are upheld throughout society.

A few months ago I blogged about the case of my client Mr Bush (name changed for privacy purposes) who was unlawfully arrested by Sussex Police after he refused to allow Bailiffs into his home.

In summary, bailiffs (whose legal title since 2007 is in fact Enforcement Agents) only have a right to force entry to a person’s home on their first visit to the premises if they are there to collect unpaid Magistrates Court fines arising out of criminal convictions. They cannot use force to gain entry to your home if they are pursuing a civil debt only, such as (in Mr Bush’s case) money owed (or allegedly owed) to a utility company.

I explained in my previous blog how Mr Bush was unlawfully arrested by Police Officers after he himself had first called the police because bailiffs in the form of an Enforcement Agent and his assistant were trying to force their way into his home.

Mr Bush had refused entry to the Enforcement Agent, but then when attempting to close his front door found that the Enforcement Agent’s assistant had wedged his foot across the threshold, thereby preventing closure of the door. In my experience, this is a common place, and entirely illegal, bailiff manoeuvre.

Once the bailiffs had been refused peaceable entry by Mr Bush, they should have turned and walked away, but instead they used force to prevent Mr Bush from closing his front door, which he was in fact perfectly entitled to do.

As reported in my previous blog, I successfully recovered damages of £9,000 for Mr Bush for False Imprisonment from Sussex Police who, after receipt of a letter of claim, fully accepted that the Enforcement Agent had not been acting lawfully, and that under those circumstances any person obstructing the bailiffs ie Mr Bush was not committing any offence under the Tribunals, Court and Enforcement Act 2007 and there was therefore no power for the police to have lawfully arrested my client.

Whilst it was pleasing to achieve this victory, that was not the end of the matter because not only had my client been handcuffed and taken from his home by the Police, and locked up at a police station for several hours, but the bailiffs had also (at the time Mr Bush was being detained by the Police) entered his home through the front door which the Police had left open behind them and thereafter remained on the property for several hours, during which time they walked around Mr Bush’s home, threatened to remove goods and extracted by means of those threats a payment of £2,800 in regards to the alleged debt, from Mr Bush’s relatives.

This payment – it should be noted – was subsequently refunded in full by the Bailiff company, but they initially denied any further liability for Trespass to my client’s home.

The Bailiff company initially tried to argue that enforcement of the High Court Writ (the Order in regards to my client’s debt) was carried out in accordance with the Tribunals Court and Enforcement Act 2007.

In response I pointed out that the bailiffs present at my client’s home on the day in question, had manifestly failed to comply with the law, in that they illegally used force in the form of the ‘foot in the door’ manoeuvre to prevent my client from closing the door to them. The fact that this type of action by bailiffs is unlawful was well established in the cases of Vaughan v McKenzie [1969] 1 QB 557 and Rai and Rai v Birmingham City Council [1993].

Mr Bush had made it expressly clear that he was not granting the bailiffs any permission to enter his premises, and at no point did his actions amount to the offence of obstructing an Enforcement Agent. My client was at all times acting within his rights, and displayed no aggression or violence towards either the bailiffs or indeed the Police Officers who subsequently attended.

In my opinion, the bailiffs must have known that they had no right to force entry to my client’s property, and furthermore they were clearly aware that they had refused them entry and that nevertheless (as set out above) they had illegally used force to prevent him from closing the door.

Notwithstanding this, in full knowledge of the fact that my client had refused permission for them to enter his premises, the two bailiffs immediately did so as soon as my client was (unlawfully) arrested and removed from the doorway by the Police Officers who attended.

In such circumstances, it was laughable to suggest that the bailiffs had been granted ‘peaceable entry’ to the property, or that the open doorway left behind when my client was forcibly removed by Police Officers who were using their own powers illegally, was in any way an implied licence for the bailiffs to peaceably enter the house.

In fact the bailiffs must have known that they had expressly no licence to enter my client’s premises, but nevertheless chose to do so as soon as the Police had conveniently moved him out of the way.

I also made strong representations to the Bailiff company that their Enforcement Agent had breached paragraph 20 of the Taking Control of Goods National Standards Guidelines 2014, by falsely implying or stating that a debtor refusing a bailiff entry to a property is a criminal offence (it is not).

Indeed, the illegality of the bailiff’s actions was even worse than that, as when I studied the Sussex Police incident log I noticed that the Enforcement Agent was recorded as having expressly informed the Police that Mr Bush had physically removed him (the Enforcement Agent) and his assistant from the premises – which was entirely untrue. No force whatsoever was used at any point by Mr Bush upon the bailiffs who, indeed, had never actually been on the premises at that point (let alone ejected from them) with the exception of that illegal ‘foot in the door’.

When I pushed back against the Bailiff company’s denial of liability and threatened Court proceedings, I am pleased to report that the Bailiffs quickly came to the negotiating table and agreed to pay to my client a total sum of £2,400 – in addition to the earlier refund of the £2,800 they had illegally extracted from his relatives.

This was a good result, and I am pleased that justice was done without there being any need for protracted Court litigation. The early resolution of this claim was no doubt helped because my client Mr Bush had a very clear understanding of his rights as a home owner and the limits and restrictions which apply to Bailiff’s powers of entry and enforcement; furthermore his partner had made a video showing his interactions with the Bailiffs, and the Police Officers who attended had body worn cameras which also recorded a lot of what proved to be useful evidence regarding the interactions between my client, the Bailiffs and the Police.

It is not always that straightforward. In the absence of video evidence showing ‘what really happened’, and where people who are not so sure of their rights are confronted by Bailiffs who are prepared to ‘bluff’ about the extent of their powers – or indeed even tell bare faced lies about their rights of entry – many people in what is an overwhelming and frightening situation can back down in the face of bailiff threats and may be unaware that the bailiff’s subsequent actions amount to trespass both to their home and their possessions.

I am writing this blog to try to highlight some of the illegal tactics which these Enforcement Agents will use to try to gain entry to private property, and how you in turn can assert your rights either to prevent them from committing trespass, or to seek compensation when they do, whether or not that trespass is with – as in this case – the inadvertent, but not uncommon, connivance of the Police.

It is just over 30 years since the Police and Criminal Evidence Act 1984 (PACE) and the codes of practice came into force.  The Act provides a core framework of powers and safeguards around arrest, detention, investigation, identification and interviewing suspects  and helps ensure that the police remain subject to the rule of law.

Whilst PACE was undoubtedly a major step forward from the bad old days of poorly regulated policing (think ‘Life on Mars’…) one flaw in the Act is that it only provides after the event remedies for people who have suffered from unlawful police behaviour.  There is no mechanism by which the citizen can stop the wrongdoing being perpetuated against him by the police; all he can do is bring a complaint or civil claim for compensation, after the damage has already been done.

I was reminded of this issue when instructed by a young Liverpudlian man, ‘Michael’ (name changed) who was arrested in December 2012.

Michael’s account

On the day in question, Michael was at home with his (then) 2-year-old son when someone caused damage to the front door. He immediately contacted the police to report the incident.   Earlier that week, Michael had an argument with his girlfriend’s brother and erroneously assumed that he was responsible.

After a short time, Michael’s girlfriend returned to the house. Michael decided to go for a walk  to clear his head.  He left  with his dog.  Whilst out and about, he was contacted by the police on his mobile phone and also spoke to officers in a patrol vehicle.  Michael then returned home.

CCTV of the road in which Michael lived captured Michael returning to his home walking along the road with his dog before entering the house.

Michael entered the lounge area where he saw two police officers, PC A and PC B.  Michael spoke to his girlfriend  and asked what was going on.  One of the officers jumped up and said to him “Who the fuck are you? Get the fuck out”.  Michael replied “Who are you swearing at?” One of the officers then lunged towards Michael and attempted to seize hold of him.  Michael protested, insisting that he had done nothing wrong, and that he was quite properly in his own home.  Michael moved towards the hallway. The officers pursued Michael  and chased him outside to the road.

PC A told Michael he was under arrest for breach of the peace.  Michael put his arms into the air, again protesting that he had done no wrong.  PC A and PC B then took hold of Michael and punched him on a number of occasions.   Michael was in genuine fear for his wellbeing. He was punched further on multiple occasions, twice to the back of his head and on either two or three occasions to the side to the head.  He was then forced onto the bonnet of the police vehicle and there subjected to at least two knee strikes.  Michael was then dragged from the police vehicle and forcibly taken to the ground. Michael had his arms pulled backwards and was pinned to the ground by means of a foot placed on his back.  In desperation, Michael managed to extricate himself from the officers and made off along the road.

As Michael proceeded along a neighbouring road he was approached by PC C who pulled up alongside him and requested his name. Michael told PC C that he was wanted and Michael surrendered himself. As he did so, he said “I just hope you’re not like the other officers”.   PC C asked Michael to turn around which he did.  PC C then handcuffed Michael and forced him up against some nearby steel railings, resulting in bruising to his chest.  The officer then threw Michael to the ground and he fell heavily onto the right side of his face.  Michael was then struck to the head on two occasions by what felt like punches.

Michael was then transported to a police station where the custody record indicates that he arrived at 18:05h. According to the custody record Michael ‘was arrested for Breach of Peace’.

The circumstances of the arrest were recorded as:

‘Breach of the Peace – officers dealing with incident at an address when DP  (Detained Person) attends and is abusive, DP warned to calm down and leave but refuses DP removed from property continues to be abusive to officers refusing to leave location as such DP cautioned and arrested.  DP becomes aggressive on arrest makes off and is detained restrained by officers detained’

Michael complained to the Custody Sergeant about his various injuries, requested to see a Solicitor and stated  that he wished to make a complaint against the officers.  Michael felt incredibly vulnerable and upset and advised the custody officer that he felt as if he would hang himself whilst in custody.  Accordingly, the custody sergeant directed constant supervision.  Meanwhile arrangements were made for Michael  to see a Health Care Professional.

In an entry timed at 18:36h the custody record indicates:

‘DP has now been further arrested for resist/obstruct police – no reply’.

At 19:20h the custody record records that the Claimant was taken to see a health care practitioner who recorded that Michael  was ‘calm and pleasant throughout’.  In relation to his injuries, she noted that  ‘he had red circular marks around both wrists.  That his skin had been broken on his left wrist, where there was a graze.  I noted that he had a small laceration to his 4^th finger at the knuckle closest to his hand.  That there was approximately 3mm of skin loss.  I noted that he had grazes to his right inside knee area.  I noted that he had grazes to his lower face, chin area on the right side.  I lastly noted that he has 2 lumps  to the back of his head on the left side and that there was redness seen at these sites.  No other injuries were noted’.

At 20:49h, Michael’s nominated solicitor was contacted and advised that the police were ready to interview Michael.  The solicitor advised that he would attend within 30 minutes and indeed he  attended at 21:19h.  Upon arrival, the solicitor requested a copy of the custody record which was handed to him and he then attended upon Michael.  Michael denied any allegation of wrongdoing.  The Solicitor advised Michael  to give a full account in interview.  The Solicitor then advised the police that  Michael  was ready for interview.  Only then did the police announce that in fact contrary to what they had said at 20:49h, they were not ready for interview.  The custody sergeant recorded as follows;

The  DP’s solicitor ‘did not appear happy’ that officers were not ready for interview and had ‘already questioned another officer re: delay.  ‘I then informed him that the delay was due to CCTV being obtained, officers mg11s (witness statements) and that officers had to see a medical professional re: injuries received during arrest.  I also informed him that the DP had only been in custody  for approximately 3 ½ hours’.

At 22:30h the custody record was endorsed to the effect that a new custody officer was now on duty and that continued detention was authorised.

At 23:01h, the Solicitor was contacted again to be advised that the police were ready to interview.

At 23:08h a review of detention  was carried out by an Inspector who endorsed the custody record as follows:

‘DP makes the following representations, he has no issues with the treatment of the custody staff but is considering making a complaint against the arresting officers …..   Continued detention is authorised as being necessary in order to secure and preserve evidence relating to the offence for which arrested and to obtain such evidence by questioning’.

At 23:33h, the Solicitor  re-attended  the police station.  CCTV footage of Michael going into the house and officers then chasing  him outside was now available along with the statements of PC A, B  and C.   The officers gave  very different accounts as to what had happened in the house and outside.

The Police account

In summary, the officers stated that they had attended Michael’s home address in order to take a crime report for criminal damage.  As PC A began to complete the report, Michael walked into the house, pushed a pram across the room and immediately started shouting at his girlfriend saying “Your fucking brother is  going to get it”.  Both of the officers told Michael to calm down and to stop shouting and swearing.  Immediately Michael became abusive and told the officers  to “Fuck off, it’s my house”.  Both constables warned Michael on numerous occasions to calm down however he refused to desist and his abuse continued.  Michael was asked to leave the house whilst the officers dealt with his girlfriend, however again he refused.

As the officers felt that a further breach of the peace was likely should Michael remain in the house and as there was a 2-year-old child awake and present during the incident, PC B placed his right arm on Michael’s shoulder and ushered him towards the living room with the intention of guiding him out of the house.  Michael began to resist and therefore the officer removed his hand.  Michael then walked out of the property.

Somewhat remarkably,  and according to the street CCTV footage, which showed that Michael was only out of sight and in the house for a very short period, all of this allegedly occurred in the space of 20  seconds.

On reaching the street, the officer alleged that Michael began to shout and swear again, waving his arms around and goading the officers saying “Am  going to go fucking mad, what are you going to do now”.  Such was Michael’s conduct, it was obvious that he was not going  to leave the area quietly and should he remain, a further Breach of the Peace was likely as Michael was angry.  On being told he was under arrest, Michael became even more angry and aggressive.  The officers took hold of Michael who tensed his body and struggled.  The officers placed Michael up against the police vehicle with a view to handcuffing him.  Michael continued to struggle and in fear that Michael was about to headbutt one of them, PC A punched Michael with his right hand in the hope of disorienting him.  Michael continued to struggle and pull away which resulted in the officers having to take Michael  to the floor in a spinning motion.  Due to the position Michael had landed it was difficult for the officers to get him into a ground pin position.  Accordingly, PC B punched Michael twice to the rear of his right arm. By this time PC A was in genuine fear for his safety and that of his colleague and therefore requested urgent assistance.  Meanwhile Michael was able to struggle to his feet and make off.

The available CCTV footage captured events outside the house.  Notwithstanding that the officers had clearly viewed it (before preparing their statements?) the footage was overwhelmingly more consistent with Michael’s account rather than the officers’ account.

A short time later, PC C was driving in a neighbouring  street when he spotted Michael.  PC C approached him and asked for his name to which Michael replied, “You fucking know my name”.  PC C told Michael he was going to search him and asked him to turn around.  PC C then grabbed Michael’s wrist.  In response, Michael tensed his body and began to  pull away.  Accordingly, PC C pulled Michael to the ground and secured the second handcuff.  Michael continued to resist and struggle such that he tried to headbutt the officer.  PC C was forced to strike Michael twice in the face with an open palm.  Michael now tried spitting at the officer resulting in the officer having to hold onto Michael’s head.

By this time, PC’s A and B arrived and Michael was brought to his feet and placed into the rear cage of a police vehicle. Having already been arrested for Breach of the Peace, he was subsequently arrested for obstructing and assaulting a police officer.

Police interview

In interview Michael gave a full account of the force used upon him by the arresting officers, which he said in terms was unprovoked.  He indicated that the statements of PC A,  PC B and PC C were untrue.  In summary, he stated:

‘To be honest I’m the innocent one. I haven’t done nothing wrong.  My window got smashed and I was the one who got beat down….  I just got in the house to see what’s up and then the two officers came straight at me.  Why would I wanna throw anything in that living room where my son is?’…..

Viewing the CCTV during the interview, Michael observed:

‘You’ll see me.  As soon as I go in I say “What’s going on, have you found him?”  The next minute two of your colleagues chase me out of the door as you can see there yourself.  I run out….  If I didn’t  get out of the house I proper thought they were gonna batter me.  And they have battered me’.

And, significantly, his solicitor observed:

‘Michael, you’re out of the house in 20 seconds.’

The interview concluded at 00:43h.  Michael was returned to a cell and his solicitor left the police station believing that his client would soon be charged and released on bail.

Charge

At 03:00h Michael was charged as follows:

(1)    behaved in a manner whereby a Breach of the Peace had been committed, contrary to common law;

(2)    resisted Constable A in the execution of his duty, contrary to section 89(2) of the Police Act 1996.

Although the police had now charged Michael, his detention continued for a further 7 hours and 18 minutes, so as to prevent a further Breach of the Peace.

The custody record at 03:09h was endorsed with an entry by an Inspector who conducted a review of detention, noting that:

‘detention necessary to prevent further Breach of the Peace, DP states that he will hang himself if he has to go back into the cell that he has been in for 11 hours and he can’t handle it, I have spoken to the custody sergeant and he will arrange officer for constant observation , DP sits in glass room waiting for officer’.

At 09:33h the Solicitor called the police station to establish what had happened after he left in the early hours of the morning.  Although not surprised that in spite of the evidence, Michael had been charged, he was outraged to discover that Michael was still in custody and immediately made representations to the Custody Sergeant.

At 10:08h the custody record was endorsed as follows;

I have reviewed the statements as requested by the legal representative.  The statements of the officers record a breach of the peace regarding an incident at [the Claimant’s home address} and the DP’s behaviour directed towards his girlfriend’s brother.  He was not present at the time of the incident, or at least he was not present when the comments were made in the presence of the police officers. 

The solicitor has made representations that his client is being held to prevent a breach of the peace, and has queried whether this detention is necessary.  I have looked at the MG7 which does not provide a great deal of information regarding the reasons for keeping the male in custody, and central to this decision was to protect the girlfriend’s brother.  The DP has not been arrested regarding any of threats made towards the girlfriend’s brother.

I have spoken to the girlfriend  on the telephone and she has informed me that this is the first time there has been an incident regarding Michael and her brother.  I have also been informed that the dispute revolves around an unpaid debt of £20, which she states can be sorted amicably.

 Michael’s girlfriend is happy for the DP to return to her address, and has shown no concern to her own safety or that of her brother’s safety.

 I am satisfied that the initial arrest of Michael was lawful  and that his detention at the custody suite was necessary.  I am now at a position to consider the representations made by the solicitor and I have to agree with him that further detention is not necessary to prevent a breach of the peace and that the threats made towards the girlfriend’s brother have not been taken any further in relation to any other criminal matters, such as threats to kill.

 In light of this, I do not believe that there is a further likelihood of a breach of the peace reoccurring, yet I am satisfied that the DP should still be charged with a resist/obstruct police offences and can be bailed as the DP has a verifiable address.

 Having spoken to the DP, my opinion is that he is not suicidal and he states that he stated he wanted to hang himself last night due to an inability to cope when in a police cell.  DP has no previous self harm history, and having spoke to his girlfriend I am satisfied that DP can be released without any concern to his mental/suicidal state.

At 10:18h the day after his arrest Michael was finally granted bail to later surrender to the Liverpool Magistrates’ Court.

On the basis of Michael’s instructions and review of available CCTV footage, Michael had been the victim of Police Misconduct.

To Michael’s credit, upon arrival at the police station he indicated  that he wanted to make a complaint against the arresting officers.

To the custody sergeant’s credit, cognizant of Michael’s injuries and perhaps of his complaint, he organised an early medical assessment.

To the Health Care Professional’s credit, she performed a thorough examination and made a careful note of Michael’s injuries.

To the Solicitor’s credit,

• upon first arrival at the police station (having been told the police were ready to interview), he made representations as to the delay in the case progressing which he insisted should be recorded in the custody record;
• he believed his client’s instructions of innocence (a prerequisite you may say but in my experience often missing), reviewed the police evidence available and challenged the police account and legality of arrest in interview and afterwards;
• he encouraged Michael to provide a full account and rebuttal.  There are times when criminal defence solicitors advise their client to go ‘no comment’.  Given Michael’s assertion of innocence,  it was in my opinion crucial for him to provide a contemporaneous account;
• he made robust representations to the custody sergeant as regards the legality of arrest, detention and charge.  As is often the case, here there was a conflict over the facts.  In such circumstances, the custody sergeant is unlikely to decide in favour of the suspect and the solicitor.  Notwithstanding this the representations were again  recorded in the custody record, albeit dismissed;
• he expedited other enquiries perhaps over and above what a standard  criminal defence representative would do in the expectation that a complaint and/or civil claim would be pursued, for example he;

1. arranged for Michael’s Injuries to be photographed.
2. requested custody CCTV footage to be preserved as evidence of both Michael’s demeanour and what steps were taken at the police station as regards his arrest, detention and charge.

Michael later attended court where he pleaded not guilty and the case was adjourned for trial.  Shortly before trial, the CPS issued a Notice of Discontinuance in relation to both charges.

Civil claim

Once the prosecution had ended, I was able to progress Michael’s case.

In light of my misgivings as regards the impartiality and effectiveness of the complaint process, Michael decided to pursue a civil claim only.  The available heads of damages were false imprisonment, assault and battery, malicious prosecution  and/or misfeasance in public office.

Once a claim was intimated, Merseyside Police investigated and soon advised that liability was denied, providing a very different factual account to that of Michael (see above).  However, Merseyside Police clearly had concerns.  Without prejudice, they advised that “as with all litigation, the Defendant is aware of inherent litigation risks”, and so offered to settle the claim for £4,500.00.

In light of Michael’s injuries, I commissioned evidence from both a GP (to report on Michael’s physical injuries) and a Psychiatrist (to report on Michael’s psychological injuries).

Thereafter, I issued court proceedings on behalf of Michael.  As is standard practice, a robust Defence was filed and the case proceeded towards trial.   Notwithstanding the contents of the Defence, Merseyside Police eventually put forward a revised offer of settlement and after negotiation Michael’s claim settled for £40,000.00 plus costs.

The success of Michael’s claim was multi factorial but part of it lay in the solicitor’s excellent representation both at the police station and immediately afterwards.

Sadly though, notwithstanding the excellent efforts made by Michael’s solicitor at the police station to highlight mistreatment of Michael and clear breaches of police rules and procedure in regard to his arrest and the unnecessary prolongation of his detention in custody, nothing could be done under PACE to get Michael released earlier, despite clear, ongoing breaches of the Act and the fact that each minute that he remained in the cell was clearly having a traumatic effect on Michael’s mental health.

In this, as in so many other cases, PACE failed to prevent police mistreatment and false imprisonment of Michael, and he was left afterwards to have to fight for compensation for the wrong that had been done and injuries inflicted on him, rather than being protected from those harms in the first place.

 

 

I was delighted to read that the two black men wrongly arrested at a Starbucks Cafe by Philadelphia Police last month have reached a financial settlement with the Police so quickly.

On April 12, Rashon Nelson and Donte Robinson arrived 10 minutes early for a business meeting at Starbucks in Philadelphia.  Upon arriving, Nelson asked whether he could use the toilet and was told by the white manager of the store that the toilets were for paying customers only.

After Nelson returned to the table where Robinson was sitting, the manager approached them to ask whether they wanted to order.  They declined.

Two minutes later, the manager called the Police to report “two gentlemen in my cafe that are refusing to make a purchase or leave”.  Police Officers arrived a few minutes later.

The officers told Nelson and Robinson that they had to leave without any discussion. They were then arrested but without being told the reason.

Both men were handcuffed to the rear and escorted to the nearest Police Station on the basis of trespass and creating a disturbance.  The arrest was captured on video.

After nearly 9 hours in custody, the men were finally released without charge because prosecutors advised that there was “a lack of evidence that a crime …..  (had been) committed”.

The arrests prompted a #Boycott Starbucks Campaign and protests at the particular store in Philadelphia.  Such was the backlash, Starbucks apologised on Social Media and the Company’s Chief Executive issued a public apology.  The manager who called the Police was sacked and the Company announced that it would close its stores on May 29 to give anti-bias training to all of its employees.

In response to allegations of wrongdoing, the Philadelphia Police Commissioner’s first reaction was that his officers had been “professional” and had done “absolutely nothing wrong. They followed policy; they did what  they were supposed to do”.   After further investigation however, he changed his tune dramatically, offering a personal apology and saying that if he had done anything to worsen race relations in the city, “shame on me”.

I mentioned at the outset that the two men and the Police have reached an out of court settlement just weeks after the incident.  Both men will each receive a symbolic $1.  In addition they have secured a commitment to fund a pilot program to help young entrepreneurs in underserved communities.  One element of that program is training in financial literacy.

In response to the news of the settlement, Jim Kenney, the Mayor of Philadelphia said in a statement that he was “pleased” that the potential claims had resolved “in this productive manner” and that specifically that rather  than spending time, money and resources to engage in a potentially adversarial process, Rashon Nelson and Donte Robinson approached the city and invited us to partner with them in an attempt to make something positive come of this”.

In my opinion, this was a fantastic settlement and a great credit to both the men and the Police Force.

In my experience, those unlawfully arrested by the Police are not normally seeking financial  compensation to enrich themselves but rather a public recognition that they were wronged and ensuring that lessons will be learnt to prevent others from having to share their experience.

Sadly, such a positive and proactive approach to settlement is rarely, if ever,  taken by Police Forces in England and Wales.  I have previously written about the policies adopted in response to claims against the Police.  (click here)

In fact, I am currently embroiled in an ongoing case for another young black man against the Metropolitan Police that exposes the significantly different approach adopted in this country.

On 22 December 2012  my client Zac Sharif-Ali  was walking his dog in a park in London whilst having his lunch.

To his sudden surprise, Zac noticed a male proceeding towards him at a pace from across the park, waving his arms in an animated manner.

The male continued to approach Mr Sharif-Ali and stopped in very close proximity to him.

The male asked Zac what he was doing in the area.

Mr Sharif-Ali stated that he was simply having a sandwich while his dog exercised a short distance away.  In response, the male replied, “Ok for that smart answer, I’m going to search you”.

At this time, Zac noticed that the male was carrying a Police badge in his hand and assumed that he was a Police Officer, albeit in plain clothes.  Indeed, we now know that the male was PC B.

Although PC B appeared to be holding a warrant card, but this was not produced or shown to Mr Sharif-Ali nor did PC B actually identify himself as a Police Officer, nor did he provide his name or  the station to which he was attached (details which he is required by law to give when carrying out a search).

Zac said to PC B words to the effect of “What have I done to warrant being searched?”  PC B replied the words to the effect of “In my eyes you look suspicious” and “I believe that you’re concealing something”.  Mr Sharif-Ali considered PC B’s justification to be unsatisfactory and Zac was of the view that the proposed stop/search was actually motivated by reason of racial profiling.

PC B proceeded to request further assistance via his personal radio. Zac queried with PC B as to whether it was genuinely necessary to request further assistance, as it appeared to him that such a response was wholly disproportionate.  Mr Sharif-Ali pointed out to PC B that at no point had he refused to be searched, but that he had merely requested reasons why he should be searched.  PC B asked Zac whether he would consent to being searched, to which Mr Sharif-Ali confirmed that he would, albeit that he had never refused in the first place.

PC B subsequently cancelled his request for assistance but instead requested that a patrol car pass by and check on him.  PC B proceeded to carry out a pat down search on Zac.  The search proved negative.

Once the pat-down search had been completed, PC B took hold of Zac by his arm and instructed Mr Sharif-Ali that he would not be permitted to leave until colleagues had arrived.  Soon afterwards, two plain clothed individuals arrived at the scene, one male and one female.  Zac now knows that these individuals to be PC S and PC T.

Upon arrival PC S and PC T, PC B advised Mr Sharif-Ali that he would be taken away for a strip search.  Zac asked PC B why a strip search was necessary.  Mr Sharif-Ali  attempted to explain his concerns to PC B that his dog was wandering about, without supervision.  PC B stated that his only concern was that of Zac  himself.  As Mr Sharif-Ali was attempting to converse with PC S, he was grabbed from behind by PC B in a chokehold manoeuvre, which immediately began to restrict his breathing.  As Zac struggled for both breath and balance, he was aggressively forced to the ground, landing heavily on his chest, under the weight of PC B.  PC B maintained the chokehold, despite the obvious distress exhibited by Mr Sharif-Ali.  As he did so, PC B taunted  Zac with goading remarks including “Look at you now” and “You’re nothing”. Finally, in an effort to relieve the pressure by PC B, Zac frantically tapped on the ground, indicating his ‘submission’. As a result, PC B slowly loosened his grip on Mr Sharif-Ali only to ask rhetorically “Do you give up?”  Zac made it clear that he was offering no resistance to PC B who went on to retort “You’re not such a tough guy after all!”

Neither PC S or PC T made an attempt to stop or restrain PC B but simply stood back and watched.

Whilst on the ground, PC B applied handcuffs to Zac in the rear position before pulling Mr Sharif-Ali onto his feet.  In the process, PC B caused Zac additional pain to his shoulder.  Zac believes that he was on the floor in a chokehold for approximately  90 seconds.

Once on his feet, PC B attempted to usher Zac towards some nearby bushes.  However, PC S finally intervened and stated to PC B that he had “gone too far” and escorted Mr Sharif-Ali towards an unmarked Police vehicle and then to the nearest Police Station.

PC B and PC S took Zac to a room where his handcuffs were removed and he  was strip searched during which he was obliged to squat, turn around and then bend over.  Zac understandably felt extremely embarrassed, humiliated and degraded.  After, he was allowed to dress, he was issued with a Stop form and left the Police Station via the rear exit, after making it clear that he wanted to lodge a complaint about what had been done to him.

Within a few minutes of leaving the Police Station, Mr Sharif-Ali received a telephone call from PS A who stated that she was responding to his complaint.

Following ‘investigation’, PS A prepared a Complaint Investigation Report, under cover of correspondence dated 15 April 2013.

Not content with the conclusion reached by PS A, Zac submitted an appeal to the IPCC.  Following an appeal assessment, the IPCC upheld Mr Sharif-Ali’s appeal and directed a reinvestigation.

In accordance with the IPCC decision, PS C was appointed to reinvestigate Zac’s complaints.

On 19 June 2014, PS C dismissed the complaints made by Mr Sharif-Ali in their entirety.

On 14 July 2014, the IPCC upheld the appeal and directed a further investigation.

DI D was subsequently appointed to have conduct of the third complaint investigation.

DI D reported on 13 February 2015, partly upholding the complaint on a limited basis, this being that compulsory records for the authorisation of the strip search were absent and that PC B had failed to provide his details to Zac.  Aside from the limited findings in favour of Mr Sharif-Ali, DI D dismissed the majority of the complaint.

On 16 April 2015 the IPCC upheld, for the third time, a further appeal.  On this occasion, the IPCC determined that further investigation by the Metropolitan Police would be inappropriate and appointed themselves to carry out an independent investigation.

By a report dated 12 May 2017, the IPCC concluded that PC B had a case to answer for misconduct.

On the 19 January 2018, PC B appeared at a misconduct meeting at which all allegations of misconduct were dismissed.

You’ll appreciate that this stop and search and then strip search at the Police Station lasted no more than an hour or so and yet the complaint investigation lasted more than 5 years.  5 years!

Throughout, the Met and their Solicitors have argued that Zac’s proposed civil claim for false imprisonment and assault/battery should be stayed, i.e. put on hold pending the outcome of the complaint process.

I have only recently been instructed.  The civil claim is now underway and in response the Met have denied liability maintaining that the stop and search and strip search at the Police Station were perfectly lawful.  Notwithstanding this, and no doubt conscious of realities, the Solicitors for the Met have in fact put forward an offer of settlement.

Had the Metropolitan Police adopted a proactive and conciliatory approach to this case shortly after it had occurred, I believe a prompt and proportionate outcome could have been achieved.  Instead, after the unrepentant attitude and pro- police bias displayed in the long sequence of complaint ‘investigations’ (or should we say ‘rejections’)  my client is left feeling more angry and resentful  towards the Police and determined to pursue his case through the Courts. As the example in Philadelphia shows us, it is quite possible for early and amicable settlement of a claim if Police authorities are willing to hold their hands up and say sorry, rather than spending massive amounts of time and financial resources on shielding one rogue officer from criticism; sadly, as many of my clients know from bitter experience, the latter approach is almost always the Metropolitan Police’s playbook in response to misconduct incidents.

And this is going to end up costing them a lot more than 2 dollars.

Update

I am pleased to confirm that, after the institution of Court proceedings and an aborted 4 day Assessment of Damages hearing, the Metropolitan Police agreed an out-of-court settlement of £30,000 together with my client’s substantial legal fees. You can read more about Zac’s case here.

It is a requirement of Code C of the Police and Criminal Evidence Act 1984 that a detailed Custody Record, now generally computerised rather than handwritten, is kept throughout a person’s detention in Police Custody, from the moment their detention is authorised by a Custody Sergeant until they are released either without charge, on bail, or alternatively transferred to the custody of the Court.

The Custody Record is an invaluable tool for ensuring that a person’s rights are upheld whilst they are in detention and is there to ensure that those rights are not infringed and that everything is done ‘by the book’ in terms of ensuring that they are not detained for an excessive period without being charged, in ensuring their safety from illness, injury or self harm whilst in custody and that all of the rights to which a detained person is entitled such as access to a solicitor as well as the more basic human needs of being provided with food, drink and access to a toilet are maintained.

The purpose of the Custody Record is to ensure compliance with the law and that there is respect for the dignity of the detainee throughout.

Of course, it is not the detainee who completes or has any input into what is recorded in the Custody Record.  All of the entries in the Custody Record are made by police staff, generally the Custody Sergeant, but also other officers, including Civilian Detention Personnel and higher ranking Officers such as Inspectors.

The Custody Record is generally the first document which I will obtain when I am instructed by a client who believes he or she may have a case against the Police, and I will check it to ensure that their rights have not been infringed and to see upon what grounds the police justified their arrest and detention.

Many times after reviewing this document with my clients, I have had clients say to me that they believed their Custody Record was not accurate, in that important information had been omitted or in fact that some entries had been falsified.

Sometimes, for example, the complaint which a client tells me they made against the Officers who arrested them, and who may have been heavy-handed towards them, is not recorded, or is not fully recorded  to the extent that my client recollects.

Sometimes, my clients also report that the timings of various entries are inaccurate and that they were not (for example) visited as often as they should have been to check upon their welfare, or to update them as to what was happening with their detention etc, despite entries in the Custody Record claiming that such visits took place.

Whilst I have long suspected that the Custody Record is a one-sided document, and can sometimes be falsified to the advantage of the Police and disadvantage of the detainee, it is rare to be able to find concrete evidence of this.  Such evidence however, has come to light in an ongoing claim which I am bringing on behalf of a client against Thames Valley Police.

My client was arrested and taken to his local Police Station, where he arrived at 03:04 on 11 July.  He was suffering severe injuries having been bitten multiple times by a Police Dog prior to his arrest and a decision was then made to transfer him to  Hospital at 03:25 on 11 July, where he remained until 18:52 on 13 July undergoing treatment.

In light of that information you may now be surprised to read the following entries which I have taken from the custody log, all covering the period whilst my client was in hospital –

11 July

 05.31                     Detained Person (DP)  visited in cell, he was asleep, all was in order and he was breathing freely.

06.27                     DP visited in cell, asleep, all in order and he was breathing freely.

10.03                     DP’s detention had been reviewed by  Inspector H, review was overdue due to operational commitments.

18.41                     Inspector is aware of review but is currently having technical issues.

18.54                     Remote review – late entry – I am aware that DP is currently in hospital to have an operation … and I am aware that his PACE clock is suspended but his detention is being reviewed … I authorized continued detention in order to establish of sufficient evidence to charge by way of interview.

23.34                     Remote review – DP in hospital (essentially as above) – Inspector R .

 

12 July

08.28                     DP had been visited in cell, was asleep all is in order and he was breathing freely.

08.47                     With regards to above cell check entry – entered in error as DP still in hospital for treatment.

08.47                     Review conducted by C. Inspector A… I am satisfied the arrest is lawful and proportionate and the investigation is being carried out diligently.  The DP is not available at the moment because he is at hospital receiving treatment for dog bites …. Continued detention is authorized (etc).

17.59                     Inspector K – DP is currently in hospital having an operation… when DP has returned from hospital he is to be informed of review and reminded of his rights … continued detention is authorized (etc).

 

13 July

00.21                     Inspector K records that DP’s detention has been reviewed in the same terms as the entry timed at 17.59h above.

07.30                     DP has been visited in cell.  Was asleep, his breathing had been seen and all was in order.

07.53                     Last entry recorded in error.

08.08                     Inspector C – review of detention carried out.  DP asleep.  Continued detention is authorized … when awake DP to be informed of review and reminded of rights.

14.52                     Inspector C– review of detention carried out.  DP away at hospital.  Continued detention authorized (etc).

18.52                     DP returns to police station from hospital.

 

These entries are quite shocking are they not?

In no less than 5 of those entries it is falsely stated that my client had been visited in his cell, and observed to be asleep and breathing freely and all was in order.  In fact when each of those entries was made my client was in hospital and therefore anyone seen asleep in his cell at that time must have been a ghost or figment of the Officer’s imagination.

Joking aside, this is actually a very serious matter.  There is good reason why regular checks are carried out and why the Officer is supposed to ensure that they have observed the person breathing to make sure that they have not fallen victim to illness or injury, particularly in light of the fact that a lot of people who are brought into Police Custody are vulnerable individuals being placed in a very stressful situation – often people against whom violence may have been used (quite possibly lawfully) during their arrest, who may have injuries inflicted by the Police or other individuals before they came in, who may be drunk or under the influence of other drugs, who may have mental health issues, or who might suffer flare ups of existing health issues because of the anxiety inducing circumstances in which they have been placed (cardiac and asthmatic issues for example).

The impression gained from the entries cited above is that Officers were – perhaps routinely – not in fact carrying out the safety observations they should have been upon detainees but simply typing out false entries as a smoke screen to hide the fact that whoever should have been carrying out the review was in fact sitting with his or her feet up enjoying a cup of coffee and a donut …

The only other explanation is that the Officers were on each of the 5 occasions visiting the incorrect cell, which itself is quite shocking and no reason for reassurance.  As I have stated above, one of the key reasons for carrying out these regular reviews is to ensure the safety of the occupant in each specific cell.

As I have said above, the fact is, that it is only because my client was in hospital throughout this time that these entries can be exposed to be the clear falsifications which they are.  Many other times clients have expressed concern to me about entries in which it is stated they were asleep, saying that in fact because of the anxiety of their situation and uncomfortableness of the cell they did not sleep all night.  This does lead me to wonder how many times Officers will take shortcuts and simply not carry out the reviews which they are supposed to by law to ensure the safety of the people they have taken into custody.

It will be noted that the last of the incorrect entries was made by an Inspector C at 8:08 on 13 July.   For the very basic reason that it is falsely recorded that my client was asleep in his cell (when in fact he was in hospital) it does not appear that this review was genuinely carried out and this would in fact mean that even if my client had been validly arrested in the first place on reasonable suspicion of an offence, his detention would have become unlawful from 09:21 until the next time a genuine review by an Inspector was carried out (at 14:52).  This is because Section 40 of PACE requires reviews of a person’s ongoing detention (whilst they are pending charge) to be carried out by an Officer of Inspector rank or above  no more than 6 hours following the initial authorisation of detention, and then at intervals of no more than 9 hours thereafter.   In my client’s case such a review should have been carried out by Inspector Coburn at 09:21, but the false  entry at 08:08 indicates to me that the review was either not done at all, or improperly done.

This therefore gives me a strong basis to argue on behalf of my client that he suffered a period of false imprisonment amounting to just over 5 and a half hours on 13 July between the ‘false’ review and the real review.

This, the claim for false imprisonment, is only one aspect of his claim, which in fact centres primarily around the severe injuries he sustained when, in my opinion, an out of control Police Dog attacked him without justification.  However I am happy to be pursuing the false imprisonment aspect as well, because it is very important that the police are held to account in regards to all breaches of the law which regulates the rights of detained persons and the proper conduct of the police towards people who they have in their power and control.

We must not allow it to become routine for the Custody Record to be manipulated by the Police, nor to be regarded by Officers as an unimportant form filling exercise.  A true and accurate Custody Record, upholding a person’s rights to have their detention under regular review, and to ensure that their health and welfare is being properly monitored and maintained by the Police,  some of the most important ways in which, in a boring and  bureaucratic but also heartwarming way, we ensure the rights of all citizens are properly maintained and we do not slip towards the abuses of an unaccountable  ‘Police State’.

A significant issue when considering taking action against the police or any other Defendant is legal costs; both the Claimant’s own and those of the Defendant which could become payable should the Claimant issue court proceedings and the claim ultimately fails.

There is a significant disparity in arms between the ordinary citizen who believes they have been wronged by a Police Force, and each of our regional Constabularies on the other hand, who naturally have access to significant legal and financial resources beyond the reach of the vast majority of individuals in this Country. One of the fundamental tenets of our Civil Justice system is to protect and correct against such disparities having a negative impact on the delivery of justice – as enshrined, in the text of the Overriding Objective of the Civil Procedure Rules (“…ensuring that the parties are on an equal footing…”).

In personal injury claims, to ensure access to justice, Claimants can bring a case to trial without fear of being ordered to pay the Defendant’s costs  if their claim proves unsuccessful by reason of Qualified One Way Costs Shifting (“QOCS”).

However the remedy of QOCS does not cover claims for False Imprisonment, Malicious Prosecution, Trespass or breaches of the Human Rights or Data Protection Acts which are common causes of action against the police.

Legal Aid does still exist for claims involving false imprisonment or malicious prosecution, assault and battery and misfeasance in public office –  torts which are central to upholding the citizen’s rights in the face of misconduct by agents of the State.  But of course, Legal Aid is subject to a means test, and hence huge swathes of society are not financially eligible for it – i.e most of the working population. When Civil Legal Aid was reviewed in 2008, it was found that only 29% of the population qualified on their means, compared with 80% when Legal Aid was first introduced – and in the decade since, that percentage can only have declined further as eligibility criteria have been made ever more stringent.

Legal Aid gives those people who are eligible for it both a sword and a shield, in the sense that it will fund their legal costs and protect them from having to pay the legal costs of their opponent.  In terms of actions against the Police, and associated matters, for those who are not eligible for Legal Aid funding (which as I say are clearly the vast majority of the population) it is not so much the loss of the sword than of the shield that is the real problem.  In the absence of Legal Aid funding there is a viable alternative for those who cannot afford out of their income or savings the tens of thousands of pounds it often costs to bring a case such as this to a successful conclusion –  lawyers such as me who specialise in this area will assume the risk of taking meritorious cases on a no win, no fee basis.  So in that respect, access to justice is available for that swathe of the population between the very poor and the very wealthy – the middle class in general.

But what neither I nor other Actions Against the Police lawyers can replace is the loss of the ‘shield’ of Legal Aid.  Most legal expense insurance companies simply do not offer cover for claims of such a complex and high risk area of the law as actions against the Police (as oppose to often much more straightforward accident claims against private individuals) and nor are they likely to as the commercial incentive is lacking.  Prior to 2013 the claimant in an action against the police case could take out an insurance policy to protect themselves from the Defendant’s costs (payable if the case failed) and expect to recover the cost of that insurance (which could be in the region of £40,000 + if the case went all the way to Trial) from the Defendant if they (the Claimant) won.  In 2013, the Government changed the law so that legal expense insurance policy costs cannot be recovered from the other party even if you win your case, meaning it is simply ‘not economic’ to take such insurance out, even if you could find an insurer willing to cover your case – as it would wipe out your damages.

It is quite normal for the damages award in a meritorious claim against the Police to not exceed £25,000 (bear in mind that the Thompson & Hsu v Commissioner of Police guidelines (allowing for inflation) set a ceiling of £5,640 for basic damages for 24 hours false imprisonment, and a maximum of £18,799 for a malicious prosecution going all the way to a Crown Court trial over a period of years). There are of course much wider benefits both to the individual Claimant and society as a whole conferred by the successful litigation of such a claim  – vindication for the individual, the reinforcement of his or her sense that justice will be done and that the social contract is not dysfunctional and the holding to account those who abuse positions of power; by means of proper public and judicial scrutiny, ensuring that those invested with authority by government remain within the bounds of the law and thereby preventing, or reducing as far as possible, future incidents of misconduct. Thus, civil legal actions in this field are one important answer to the age-old question “Quis custodiet ipsos custodes?” or “Who polices the police?” As my colleagues in the Police Action Lawyers Group wrote in submissions to Lord Jackson’s Review of Fixed Recoverable Costs (2017) –

“These cases serve a crucial function in underpinning and upholding the rule of law by scrutinising the police and other state bodies with power to detain and prosecute. That scrutiny inevitably shapes how those bodies conduct themselves.”

It strikes me as bizarre that the remedy of QOCS which is in effect a ‘replacement’ for insurance policies is available only for those people pursuing personal injury claims arising from negligence and not for those who have suffered much more fundamental infringements of their rights – those who have been injured through targeted malice or deliberate infliction of violence by the police (rather than mere negligence), who have wrongly been subjected to the stress and torment of a drawn out criminal prosecution or who have wrongly been imprisoned in police custody, often for the very first time in their lives.

It is in my opinion clearly inequitable and unjust that Claimants in actions against the police claims do not have the same protection as is offered to road traffic accident victims by QOCS.  Indeed, the application of QOCS in its current format appears in significant contrast to that which was envisaged by its ‘originator’ Sir Rupert Jackson in his Final Report on civil justice reform in January 2010 when he specifically endorsed claimants in actions against the Police as an example of those who might well merit protection under the QOCS umbrella, on the grounds of social policy and because of the strikingly asymmetrical relationship between claimants and defendants in such cases – manifestly undeniable in terms of litigation power and resources.

Sir Rupert spoke in his Final Report of a “coherent package of interlocking reforms, designed to control costs and promote access to justice” – yet the non- application of QOCS to actions against the Police and other State authorities, as matters currently stand, means we have been left, at least in this field of law, with incoherence and an obstruction of access to justice – one reform (the removal of recoverability of ATE premiums) being implemented without the complimentary other (QOCS) – so rather than a neat interlock of reforms, we are left with something that is broken and semi- dysfunctional.

This is not just a theoretical problem.  In my practice I have seen clients scared away from pursuing what I believe to be strongly founded and meritorious claims against the police because they cannot take the risk of losing their house and savings if the claim does not succeed.  Any action brought against an agency of the State by a private individual is clearly one in which the Claimant is fighting an uphill battle, but the gradient up which he must struggle has now been made dramatically steeper (and the risks if he fails significantly greater) because – as it appears to me – the law was changed at a stroke and left those who have suffered from police misconduct hamstrung by the wayside.

I myself have represented Claimants who, after considering these risks, have decided only to pursue a claim for assault against the Police, when they have equally meritorious claims for false imprisonment and/or malicious prosecution, because an assault claim involving personal injury “alone” has the full protection of QOCS. One such example is a case in which I represented a young man of good character who had been savagely bitten by a Police dog, requiring hospitalization – from which hospital he was taken under arrest to a Police station, charged with affray, and subsequently prosecuted over many months before his innocence was vindicated at a Magistrates Court trial. This young man was in regular employment and hence did not qualify for Legal Aid; when faced with the costs risk of pursuing his claim to Court he therefore took the decision to proceed with his personal injury claim only – a decision based not on the merits of his potential claims for false imprisonment and malicious prosecution which I felt were strong – therefore not on considerations of the applicable law or the facts – but simply because of the present defective state of access to justice. My client could have faced financial ruin if he pursued those heads of loss and failed, because they carry no QOCS protection. I felt that this was a grave injustice; when the Police eventually settled my client’s claim (shortly prior to the trial of his County Court action) they only had to compensate him for the injuries inflicted by the dog attack – and not for his loss of liberty nor the immense stress of the prosecution they had brought against him – and thus they escaped proper scrutiny of their actions. I strongly believed that my client had only been arrested, and then prosecuted, to provide a smokescreen for the unlawful actions of the dog handling officer, but these issues never came before the Court for adjudication, plainly and simply because of the absence of QOCS. If my client had been impecunious, or if, on the other hand he had been a millionaire, he could have pursued the full range of legal action open to him; but instead he was really left with no choice but to present an artificially shrunken and limited case to the Court – how can this be called “access to justice” ?

I consider allowing this situation to continue unchanged to be completely indefensible.  It is obstruction of, not access to justice, that currently apply, certainly as they relate to actions against the police and the wider State.  This is surely at odds with some of the fundamental principles of our common law – the right of redress for the citizen who has suffered oppressive, arbitrary or unconstitutional acts by government servants in the form of infringement of their personal freedom and security, their rights to property and freedom from search and trespass, all of which are rights which helped bring into existence modern liberal democracy and which are essential for its continuance and robust health.

The need to address this has become ever more urgent since the recent High Court case of Robert Jeffreys v the Commissioner of Police of the Metropolis (2017)  made it resoundingly clear that on the ambiguous point as to whether QOCS protection applies to the whole of a claim which includes a personal injury element, or only to those costs which can be attributed to the personal injury claim, case law is coming down firmly in favour of the Defendant and is allowing the Claimant only a limited protection from QOCS. Mr Jeffreys brought claims for assault and battery, false imprisonment, misfeasance in public office and malicious prosecution – and was ordered to pay 70% of the Defendant’s costs when his claim failed, the Court determining that under the current framing of the rule, QOCS applied only and specifically to the costs of the assault claim. This is of grave concern as most police cases are hybrids involving, yes, on the one hand personal injury flowing from assault and battery, but also significant and complex claims for false imprisonment and malicious prosecution.  As I have said above, this then leaves lawyers in an artificial position where they need to advise their clients to consider dropping – and many people then will, as in the example I gave above –  all elements of their claim apart from the personal injury claim – potentially allowing Defendants to take away the liberty of individuals, and to subject them to significant psychological stress through false prosecution with impunity, because most people will not be able to take the financial risk of bringing claims in those areas of the law.

So what we are witnessing is a restriction of individual rights. Surely it was never the intention of those tasked with reforming – by which we must surely mean improving – our civil justice system, to give authorities such as a Police a type of ‘immunity’ from claims for false imprisonment, malicious prosecution and trespass ?

The Civil Justice Council did produce a report in March 2016 in which this very important issue was considered and I highlight the conclusions reached which were as follows:-

• There are strong, if not compelling, arguments of principle –based on access to justice and on the asymmetry of the relationship between the parties – weighing in favour of extending the scope of QOCS protection (or something very similar) to claims against the police.
• Principled arguments for not doing so do not appear to have been made out [There appears from the comments of the Working Group to have been a deliberate lack of engagement on this important issue by Police Forces and the lawyers who represent them – their silence speaking volumes I might say !]

Successive Governments have done a lot of tinkering with our civil law in recent years, a trend which looks set to continue; in regards to the issue I have set out above, I will continue to campaign for reform and fight for full access to justice for all victims of police misconduct.

In this respect, I recently met Sir Terence Etherton, the current Master of the Rolls and Head of Civil Litigation and specifically discussed this issue with him. Sir Terence accepted that he had not given this issue much consideration.  In the circumstances, I subsequently wrote to Sir Terence and attach his reply here:

Sir Terence helpfully suggests that he will be taking the points raised in  my letter up with the Government as part of the forthcoming review of Civil Justice in England and Wales.  For the sake of access to justice, let us hope that any representations that he makes are both listened to and acted upon and that QOCS is extended.

 

Establishing malicious prosecution is both difficult and complicated and it is a fact that although thousands of people are acquitted of offences of which they were accused every year, only a relatively small proportion of those people will have a viable claim for malicious prosecution.

Unlike claims for false imprisonment and assault/battery, the burden of proof lies upon the Claimant, i.e. it is for the Claimant to prove by the evidence available that the criminal proceedings brought against him were motivated by malice.

Whilst it should be easy enough to establish that the Claimant was prosecuted, that the prosecution concluded in his favour and that the prosecution resulted in damage to his reputation or freedom, the Claimant must also establish that;

• reasonable and probable cause  were absent in the bringing of the prosecution; and
• the police acted maliciously.

What does “Lack of reasonable and probable cause” mean?

This means a lack of either –

• Actual belief in the guilt of the Claimant (a subjective evaluation; in other words, the Police knew the Claimant wasn’t guilty); or
• Reasonable belief in the guilt of the Claimant (an objective evaluation; in other words, the Police should have known that the Claimant wasn’t guilty).

What does “Acted with malice” mean?

This means that the Claimant must show that the police were motivated by something other than a desire to bring the Claimant to justice, for example to conceal their own misconduct towards the Claimant.

Furthermore, Defendants are likely to robustly defend claims for malicious prosecution because of the political  and reputational fall-out of conceding the action.  The police are a public body and as such are rightly concerned not to be labelled “malicious”.

This discussion brings me onto a case that is presently ongoing.

On the day in question, my client Salman Khan attended at Barnsley Police Station in order to collect items of property which had been taken from him following his arrest several months before. Fortunately, what happened next was caught on CCTV.

Mr Khan proceeded in a normal manner to the enquiry desk where he spoke with an enquiry assistant  who I’ll call Andrea, who advised that she would retrieve his items from the property store.

Thereafter Mr Khan waited calmly for the return of his property, spending the majority of the period outside the police station.

Upon her return to the enquiry desk, Andrea beckoned Mr Khan  towards a secure corridor which separates the enquiry area of the police station from the Custody Suite.

In the corridor, Andrea  provided Mr Khan with some property  (in bags) and thereafter requested that he sign what was purported to be a property sheet.

Mr Khan noted that the document being offered to him was not the original property sheet, but a copy. Mr Khan requested production of the original property sheet (which he had seen previously). Mr Khan was particularly concerned because a substantial amount of money had been taken from him by the Police at the time of his arrest and not yet returned.

Andrea continued to insist that the document in question was the property sheet, albeit that she accepted that it was not the original.

Mr Khan asked to speak to the Property Officer who he had seen previously.  Andrea refused. Mr Khan then requested to speak with an Inspector in order to complain.  Again Andrea refused.

After several minutes of discussion Andrea refused to discuss the matter any further and closed the side window of her office, leaving Mr Khan standing in the corridor with the property bags.

As Mr Khan remained waiting in the corridor a police officer emerged from the Custody Suite, proceeding towards the enquiry/foyer area.

Mr Khan explained to the officer that he wished to speak to a senior officer but was simply directed to return into the foyer to continue waiting.

As Mr Khan returned to the foyer, he attempted to engage with enquiry desk staff but they continued to be uncooperative.   Mr Khan, whilst asserting his unhappiness with the state of affairs (his missing property) and making it clear that he wished to speak to an Inspector,was neither shouting nor displaying any physical aggression. Indeed, his body language was relaxed and non-confrontational.  All of this is clear on the CCTV footage.

Two officers, PC Darwin and PC Singh then emerged into the foyer and walked towards Mr Khan.

Upon receiving a call on his mobile phone, Mr Khan then moved towards the seating area which was adjacent to the entrance of the police station in order to use his phone.

PC Darwin then approached Mr Khan, stood over him and said to him “You’re in my grasp, you arrogant bastard.”

Mr Khan did not wish to argue with PC Darwin and therefore walked to an empty seat, still attempting to use his mobile phone, and sat down next to other members of the public who were waiting.

As Mr Khan was sitting down, he commented to PC Darwin “Go away” and in response PC Darwin pointed aggressively towards him and shouted “Get outside, get outside!”

In response Mr Khan said to PC Darwin that he was now in the presence of witnesses (in an attempt to get PC Darwin to desist from his unreasonable behavior). PC Darwin then attempted to grab hold of Mr Khan’s arms.

Mr Khan recoiled from PC Darwin’s grasp, and got to his feet in a natural attempt to escape PC Darwin’s assault. At no point, did Mr Khan in any way attempt to strike out at PC Darwin. PC Darwin then pushed/ shoved Mr Khan and pursued him in an aggressive manner towards the door.

PCs Darwin & Singh now attempted to put handcuffs on Mr Khan and also kicked Mr Khan’s leg. In response Mr Khan ran away from PC Darwin. He had no idea why the Officers were doing this to him. PC Darwin had not stated that Mr Khan was under arrest.

Mr Khan was now pursued across the grounds of the police station by PC Darwin and PC Singh and numerous other officers.

Mr Khan was sprayed with PAVA gas, handcuffed and returned to the police station where he was escorted to the Custody Suite.

During the pursuit, Mr Khan merely attempted to evade the officers by running behind trees and weaving to avoid their grasp, as if playing a game of ‘tick’ (albeit with sadly higher stakes than most playground games). He did not display any physical or verbal aggression to the officers and did not attempt to strike any of them.

Upon Mr Khan’s  presentation before the Custody Sergeant, PC Darwin stated his grounds of arrest which were recorded as follows – “He has become aware of shouting and swearing at the front desk and has attended at that location with arresting officer and sees DP verbally abusing front desk clerks over matters to do with his property.  DP is warned regarding his conduct but ignores requests to desist by continuing to shout, swear and bang on the counter.  Arresting officer  attempts to remove DP from the police station and in doing the DP attempts to strike the arresting officer.  DP is restrained and arrested for disorderly behaviour contrary to Section 5 of the POA 1986, but runs away and tries to hide behind a tree”.

During his presentation of Mr Khan to the Custody Sergeant PC Darwin can clearly be heard to make the following false accusations against Mr Khan –

1. He started waving his hands about and towards me
2. He’s got up and come back towards me
3. He is throwing his arm out towards me again
4. I told him I’d remove him at which point he started throwing a fist at me
5. As I’ve pushed him out of the Police Station, he’s continued to throw his arms about
6. He started making a fist so I pushed him away

Mr Khan was detained for a few hours before being released on bail so that further enquiries could be made.

When Mr Khan did return to the police station,  he was charged with an offence contrary to Section 4A of the Public Order Act 1986 and bailed to appear at his local Magistrates Court.

Mr Khan subsequently pleaded not guilty and the case went to trial,  where  he was formally acquitted.  In their judgment, the Magistrates were highly critical of the evidence which had been offered against Mr Khan by police staff, describing that evidence as being “discredited by the CCTV footage”.

Mr Khan was advised to bring an action against South Yorkshire police.

Following an internet search, Mr Khan contacted me and asked me to take on his case.

On his behalf, I intimated a claim for false imprisonment, assault and battery, malicious prosecution and/or misfeasance in public office.

Notwithstanding the obstacles that he faces, Mr Khan has issued court proceedings. Indeed the Police have now admitted falsely imprisoning Mr Khan, but continue to dispute his claim for malicious prosecution. As I alluded to above, I believe this approach on the part of the Police is because they do not wish to admit that their officers or staff  are guilty of telling deliberate lies as opposed to ‘merely’ making an error of judgment (as damages can be recovered for an unreasonable /incompetent arrest without needing to show it was malicious – unlike for a prosecution). The trial is a way off but in light of the available evidence I am confident that Mr Khan’s claim will succeed in its entirety.

Mr Khan’s case is  a fairly classic example of a malicious prosecution, where the Claimant alleges that the prosecution case brought against him was based on concocted Police evidence. Fortunately for Mr Khan, early efforts were made to secure and preserve both the waiting room and custody CCTV footage, which I believe will weigh heavily in his favour as the claim proceeds.   Not all such Claimants are so fortunate, and I am caused to reflect on the number of occasions Police Officers ‘fit’ someone up for an offence by telling deliberate untruths – often false allegations that they were assaulted or obstructed by the person – without being caught out by the unblinking eye of video evidence.

Please note that for the purposes of anonymity, all names in this blog have been changed.

Update

I am pleased to confirm that, after further delay, South Yorkshire Police agreed an out-of-court settlement of £27,500 plus legal fees – a settlement reflecting my client’s claims for false imprisonment, assault and battery, and malicious prosecution.

There  is no generalised principle of liability for police failings only a series of specific torts and Statutory Provisions, each governed by its own conditions.  In order to qualify for a right to compensation, Claimants must be able to present their claims in such a manner that they fit within the structure of an existing tort or law.

In the ‘Google age’  in which we live,  because information on the web is so unfathomably plentiful, so readily available, and so disorganised, it’s easy for the layman to jump to conclusions as to what heads of claim are available to him.  A lot of the legal information available for free online is, in fairness, accurate and reliable.  The problem, however, is that even though that information is reliable, legal issues are complicated and someone without a legal background may come to the wrong conclusions.

This position is aggravated by the fact that some individuals who have been let down by the Criminal Justice System  don’t necessarily trust the advice of solicitors and barristers that they approach.

A case in point is that of a client whose case is presently ongoing. He was arrested and during the course of his arrest was CS gassed, manhandled and then handcuffed before he was taken to the Police Station and detained for several hours before being released with no further action.

Here’s what happened.

On the date in question, my client was in the City Centre. At or around 14:35, he encountered his uncle, by chance.

Following a short conversation between my client and his uncle, my client and his uncle agreed to share a drink in a local park.

My client and his uncle purchased some cans of lager and made their way to the park where they sat on a public bench.

My client opened his can of lager and began to drink from it.  As my client and his uncle were sitting on the bench, an unknown man approached and joined them.

At or around 15:00, my client became aware of the presence of two Police Community Support Officers (“PCSO”).  One of the PCSOs approached the ground and requested that they refrain from drinking alcohol and mentioned that the area was a designated public place.

My client said that he was unaware that he was not allowed to drink in the area and asked if there were any notices in the area to inform members of the public of this law.  The PCSO said that there were notices in the area but that he did not know where they were.

My client placed the open can of lager underneath the bench on which he was sitting.  The PCSO did not at this stage ask my client to surrender the can of lager and my client did not consume any more alcohol.

The PCSOs stood some metres away from my client, his uncle and the third man, occasionally glancing over at them.

After several minutes, one of the PCSOs approached my client again and informed my client that he had a right to confiscate his drink.  The PCSO then picked up the can of lager from beneath the bench on which my client was sitting .

My client, believing that he had complied with the PCSOs instruction not to consume alcohol, thought it unnecessary and inappropriate for the PCSO to attempt to confiscate the can.

My client therefore also took hold of the can of lager that the PCSO was holding.

Since my client and the PCSO both now had hold of the can of lager and were attempting to take possession of it, some of the contents of the can of lager spilled over my client and the PCSO.  The PCSO eventually released his grip on the can.

My client proceeded towards a public bin, emptied the remaining contents of the can of lager into a flowerbed and placed the empty can into the bin.  My client then walked back to the bench and collected  his possessions.

My client announced that he was irritated and that he was leaving and began to leave the park.

The PCSO followed my client and told him that he had called the police to speak with him.  My client then left the park.

As my client was crossing a nearby street, two police officers ran towards my client.  Both officers were wearing plain clothes. What happens next is caught on police officer body cameras.

One officer, PC B introduced himself to my client.

Without identifying himself as a police officer, PC B told my client that he was under arrest for assault.  My client was shocked and surprised and said, “Assault?”

The officers then began to try to handcuff my client. He was then told to hold out his arms or he would be sprayed with CS.

My client asked, “Who did I assault?”

PC B then deployed his CS incapacitant spray on my client, at an extremely close distance.

My client turned away from the CS spray, before turning back to face the officers.  PC B then sprayed my client with the CS spray for a second time.

My client asked again, “Who have I assaulted?”. 

The officers took my client to the floor and held him on the ground.  My client told them, “I have assaulted no one”.

My client was handcuffed and  then escorted to a police vehicle before being transported to the nearest Police Station. As he was led away, some members of the public who had gathered to watch queried the actions of the police officers.

At the Police Station, it was recorded on my client’s custody record that he had been arrested for ‘Assault Person Assisting Constable’.

My client was thereafter interviewed.  He provided a full and detailed account, in which he denied assaulting the PCSO.

Both I and my client agreed that he had viable claims for false imprisonment and assault/battery but my client also wanted to bring a claim for other heads of claim.

What were those other heads?

Breach of Article 5 Human Rights Act, i.e. the right to liberty.

Yes, it’s true that my client’s liberty had been interfered with but he had a perfectly valid claim for false imprisonment so why bother with an additional claim under the Human Rights Act?  People get very excited about establishing a breach of Section 6 of the Human Rights Act but the fact is that establishing a Common Law Tort, i.e. false imprisonment, results in a significantly higher compensation award than under the Human  Rights  Act (and there is no double recovery, i.e. you can’t  recover damages for both false imprisonment and breach of Article 5 of the Human Rights Act in respect of the same act of imprisonment).

Misfeasance in Public Office

To establish misfeasance, my client (and the burden of proof lies on him as the Claimant) would need to show that the officers exercised a power;  and that they intended to injure him by their acts; or the officer knowingly or recklessly (in the subjective sense) acted beyond their powers; and the officers’ act caused damage to the Claimant; and the officers knew or were subjectively reckless to the fact that their act would probably cause damage of the kind suffered by the Claimant.  But in this case, there was no clear evidence of bad faith (or in other words, malice) by the arresting officer.  In the circumstances, there was no merit in pursuing such a claim.  The correct level of compensation can much more easily be obtained by suing in the tort of false imprisonment where there is no need to establish deliberate malice on the part of the officer/s (as opposed to incompetence, mistake or misjudgement).

Malicious process

My client realised that because it had been decided at the Police Station that no further action should be taken, he wasn’t prosecuted and therefore he couldn’t pursue a claim for malicious prosecution.  Instead, he sought to persuade me that he might have a claim for malicious process.  Malicious process is established where the Police instigate a process against an individual that falls short of a prosecution. The most common example is when the police apply for a search warrant. This did not apply to my client’s case. He was arrested by the officer  who was using his general powers granted by the Police and Criminal Evidence Act.

Defamation

This enables an individual to sue a person or organisation for damage to his reputation. Here my client had been arrested (and therefore detained) and so compensation for damage to reputation is included in the claim for false imprisonment, and I therefore explained to him that an additional claim in defamation would be redundant /unnecessary.

Pursuing a claim should be a collaborative process between the client and his lawyer but it is essential  in my opinion that ultimately the client heed and follow his lawyer’s advice.

Following a lengthy discussion, I am pleased to report that my client accepted my advice and accepted that his “self diagnosis” was inaccurate; his claim was rightly limited to false imprisonment and assault/battery only.

One final word on this issue.  The Claimant who establishes some heads of claim but not all, can be penalised in costs, for the Defendant Police Force will assert that the Claimant was only partially successful and therefore should not be awarded his costs in full.  There would then be a reduction in the award of damages to cover any costs awarded to the Defendant. In short, a wise claimant will pursue the strongest heads of claim only, following full and considered advice of his lawyer.

Update

The Defendant filed a robust defence and the case proceeded to trial. I am pleased to confirm that, after further delay, West Midlands Police agreed an out-of-court settlement of £12,500 together with my client’s legal fees – a settlement reflecting my client’s claim for wrongful arrest.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A pre-trial review was set for February 2019.

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

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

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

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

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

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

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

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

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

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