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Can the Metropolitan Police justify Max Clifford’s arrest?

By Iain Gould, Solicitor

Actions against the police solicitor Iain Gould
Iain Gould, police claims specialist solicitor

Another day & yet another high-profile arrest for alleged historic sexual abuse. Yesterday, the well-known publicist, Max Clifford, was arrested by the Metropolitan Police on suspicion of sex offences that date back 35 years.

Mr Clifford, the self-styled ‘PR guru’, was arrested shortly after 7.30 am yesterday (Thursday 6 December) at his home in Hersham, Surrey and taken to a police station in Central London where he was detained and quizzed for 12 hours.

Following his arrest, police searched his house for several hours before emerging with sealed black evidence bags which were placed into the back of two vans.

Undoubtedly the arrest came like a bolt out of the blue for Mr Clifford, who spoke out only a few months ago about the police enquiry into the conduct of BBC DJ and TV presenter Jimmy Saville.

He said that he had been approached by celebrities from the 1960’s and 1970’s who were ‘frightened to death’ that they would be caught up in the scandal.

It is likely that the allegations of sexual abuse have been prompted by the Jimmy Saville enquiry. Indeed, the Metropolitan Police have confirmed that the arrest is part of Operation Yewtree, which is looking at three categories of alleged sexual offences: those involving Saville; those involving Saville and others; and those involving others. Mr Clifford’s arrest comes under the later group.

Mr Clifford has vehemently denied the allegations which led to his arrest, saying that they dated as far back as 1977 and that ‘these allegations are damaging and totally untrue’.

Justifying arrest- the necessity test

The burden of proof falls on the police to justify any arrest. This has proven to be so even during times of great duress or urgency, such as during the darkest days of World War II, when Lord Atkin stated,

“[I]n English law every imprisonment is prima facie unlawful and … it is for a person directing imprisonment to justify his act.” (Liversidge v Anderson (1942))

Historically, under Section 24 of the Police and Criminal Evidence Act (1984) (‘PACE’), an Officer can arrest where he honestly suspects the commission of an offence and he holds that suspicion on reasonable grounds. Those grounds need to be more than a hunch, but can be less than the standard for admissible evidence. I have recently written a guest blog post on the Charon QC website about another recent high-profile arrest, that of Christopher Jeffries, which expands on this.

In 2006, section 24 of PACE was amended to allow an officer to only arrest in the above circumstances, if s/he also had reasonable grounds for believing that it was necessary to arrest for any of the following reasons (emphasis added)

(a)        to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person’s name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);

(b)        correspondingly as regards the person’s address;

(c)        to prevent the person in question –

(i)         causing physical injury to himself or any other person;

(ii)         suffering physical injury;

(iii)        causing loss of or damage to property;

(iv)        committing an offence against public decency (subject to subsection (6)); or

(v)        causing an unlawful obstruction of the highway;

(d)        to protect a child or other vulnerable person from the person in question;

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

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

This was clarified in Hayes v Merseyside Police (2011), when the Court of Appeal established that the test was simply whether:

a. the officer actually believed that arrest was necessary, and for one of the reasons specified above; and

b. that objectively that belief was reasonable.

Common police claims

The consequence of the above statutory guidance and case-law is that I anticipate the Police will argue that the arrest of Mr Clifford was necessary for the purpose of ‘prompt and effective investigation’ by questioning at a formal interview.

But could the Police have simply invited Mr Clifford to attend the police station at a mutually convenient time to give a statement under caution (i.e. voluntary attendance), especially given the age of the allegations?

Was a dramatic ‘dawn raid’ formal arrest really necessary?

The Police would say that the mere fact of an arrest pre-interview will put more pressure on the arrested person during questioning. They may also point out that making a formal arrest prevents any interruption of having to make an arrest should the voluntary attender seek to leave.

They could also argue that arrest was justified due to the possible need to take certain protective measures that can only be taken following arrest, i.e. imposing bail conditions.

There has been limited litigation on this point but it is clear that the Courts will give the Police substantial leeway and that unless there appears to be compelling evidence that the officer knew or ought to have known that the suspect would co-operate fully on a voluntary basis, an arrest will be deemed lawful.

As a result, in the event Mr. Clifford pursues a civil compensation claim against the police, success is by no means assured.

 

Iain Gould is a solicitor who specialises in actions against the police claims. You can read more about him at www.iaingould.co.uk.

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Have South Yorkshire Police really changed?

By Iain Gould, Solicitor

A former chief constable of South Yorkshire, Richard Wells, who took charge in the aftermath of the Hillsborough disaster in 1989, recently said that at the time police forces across Britain had ‘a culture of authoritarianism, defensiveness [and] excessive secrecy’.

Mr Wells statement followed publication of a report by the Hillsborough Independent Panel that found that senior police officers waged a concerted campaign, in the form of private briefings, redacted statements and stories fed to a Sheffield news agency, to “impugn the reputations of the dead” and save that of the South Yorkshire Police.

The current Chief Constable, David Crompton maintained in a BBC interview that “South Yorkshire Police is a very different place in 2012 from what it was 23 years ago”.

Is it? My client, Mr A would strongly disagree. 

Attack by police dog

In February 2012, Mr. A, a 19 year-old football fan, was at Hillsborough to watch the derby between United and Sheffield Wednesday.

As he was walking home from the ground he passed a WPC with a police dog. Suddenly and without warning the police dog lunged at Mr. A, biting his right forearm, drawing blood and destroying his jacket, a recent Christmas present from his mum and dad.

Although he was shocked and in great pain, Mr. A asked the officer for her details as he intended to pursue a complaint about the assault by the police dog. She refused and a male police officer ushered him away.

Mr A walked away and met up with some friends who advised him to return to the WPC to insist that she give him her details. Once again, she refused and once again, he was ushered away by the male police officer who belittled and laughed at him as he did so. At  no time was it suggested that Mr A had committed any criminal offence and at no time was Mr A obliged to give his details.

As he walked away, Mr. A saw another man receiving treatment in an ambulance. He had also been bitten by a police dog . Mr. A approached the paramedics, was treated and taken to hospital for dog bite injuries and shock.

Mr. A, a student has never been in trouble with the police before,  complained to the police the next day and agreed to have the matter investigated by local resolution, an informal process I do not recommend. Before then, the police had no idea who he was.

Malicious Prosecution by the police

A couple of weeks later he was visited at home by two uniformed South Yorkshire Police officers. Rather than discuss his complaint, they served Mr A with a Fixed Penalty Notice for breach of s.5 of the Public Order Act on the day of the derby match, ie that he had caused ‘harassment, alarm or distress’.

Dilemma

Mr. A contacted me for advice. He knew that the s.5 charge was made-up nonsense, but that if he accepted the fixed penalty and paid the £60 fine it would be dealt with and he would not have a criminal record, something of crucial importance to a young man with the rest of his life ahead of him.

However, he also knew that South Yorkshire Police had issued the Fixed Penalty notice merely because he had the temerity to complain. They would not have known who he was, and so would not have served him with the Fixed Penalty Notice if he hadn’t approached them the following day to complain.

Ultimately, Mr. A decided to fight the allegation. Mr A  lodged the appeal and waited. It would appear that South Yorkshire Police then bungled their attempt to prosecute. They are now out of time to do so.

I am now representing him in a compensation claim against South Yorkshire Police.

No change

Although South Yorkshire Police’s Chief Constable David Crompton assured us that things had changed, my client was subjected to an entirely unjustified assault and prosecution. I  am not re-assured by the Chief Constable’s words.

It appears to me that the s.5 Public Order Act prosecution was brought to put Mr A in his place. Once again, we would hear the old line of the hooligan football fan being restrained by well-meaning police officers. In short; the same lie South Yorkshire Police peddled in the aftermath of the 1989 Hillsborough tragedy would be repeated following an attack by a police dog at the same football stadium 23 years later.

To put a 19-year-old in this position, where he had to decide between the principle of defending himself from trumped-up charges, or letting the matter lie, is nothing short of disgraceful and points to an institutional failing within South Yorkshire Police which has not been addressed.  Unlike Chief Constable Crompton, I have no doubt that this leopard has not changed its spots.

Iain Gould is a solicitor who specialises in actions against the police compensation claims.

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Why another Taser assault exposes police failings

By Iain Gould, Solicitor

I was disappointed to read yet another story of police officers using Tasers to restrain innocent people.

Tasers are stun guns used by the police to shoot 50,000 volts of electricity into a person’s body. This has the effect of temporarily paralysing them, and can cause nausea, loss of bowel and bladder control, vomiting and on rare occasions, a heart attack. The police can use these weapons to arrest someone provided they can show that such force is reasonable and proportionate.

Blind man Tasered

The Daily Mail reports how Colin Farmer, a 61-year-old blind man carrying his white stick, was walking slowly in Chorley, Lancashire (he has had two strokes and is partially paralysed) when he was Tasered in the back by a policeman looking for a man carrying a samurai sword. Even after shouting ‘I’m blind’ Mr. Farmer’s back was knelt upon by the policeman while he put handcuffs on with such force that they broke Mr. Farmer’s bracelet.

You can watch Mr. Farmer being interviewed here. I think you will agree he does not come across as a knife wielding threat to society.

Mr. Farmer describes the police officer who Tasered him as ‘a thug’ and is taking legal action against the police force for the assault.

Amazingly, no disciplinary action was taken at the time against the officer by Lancashire Constabulary. Perhaps because of the publicity the matter has now been referred to the Independent Police Complaints Commission.

I have previously blogged on this issue, as I am now routinely receiving enquiries from people who have been subject to this form of police assault.

Police assault

In one case I am currently pursuing, my client Mr. M, a 51-year-old heavy-set, bald black man, was at home when two police officers knocked on the door. They asked his name, which he confirmed, but said that he was not the person they were looking for. My client shares the same name as his son, but does not resemble him physically. His son is 20 years younger, of slim build, with an ‘afro’ haircut and of mixed race.

The police officers ignored Mr. M and disregarded the fact that he bears no resemblance to his son, whose photograph they had seen before going to Mr. M’s house, and said they were there to arrest him for criminal damage.

Mr. M knew he had done nothing wrong and stepped back into his house. Echoing Mr. Farmer’s case, my client had his back to the police when he was Tasered, falling heavily to the floor where he was then handcuffed.

Even though Mr. M was in great pain, he begged the officers to get his personal identification. Once checked, they acknowledged their mistake. Unlike Mr. Farmer however, they then added insult to injury by arresting Mr. M with assaulting police officers and obstructing a constable in the course of his duties.

Although there were no grounds for this, he was taken to a local police station, detained, interviewed, and eventually released after 17 hours with no further action to be taken.

Not unsurprisingly, Mr. M is now pursuing a claim for police assault, unlawful arrest, trespass, false imprisonment and misfeasance in public office. I am confident he will be successful, resulting in thousands of pounds compensation being paid by the taxpayer as a result of the over-zealous use of a Taser by police officers, who then compounded the mistake by fabricating a story of assault to avoid blame.

Lack of police training

Both Colin Farmer’s and Mr. M’s case have striking similarities, not least being the lack of common sense being shown by the police officers. How can a white stick be confused for a samurai sword? How can a middle-aged, heavy-set man be confused for his son? Although the police are trained in the use of Tasers perhaps it is time a new chapter is added to the training manual: ‘How to use your brain’.

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One Rule for the Rich?

The Tory Chief Whip, Andrew Mitchell is currently under significant pressure after a call for a formal inquiry following his outburst at two police officers on the evening of Wednesday 19 September.
Upon leaving Downing Street, it is alleged he asked officers to open the gates that lead on to Whitehall.  When the officers refused and asked him to leave via a side gate, he allegedly shouted ‘You fxxxing plebs, I’ll have your jobs for this’, and ‘You don’t know who I am.  I am the Chief Whip.  You don’t run this fxxxing country’.
The officers recorded this outburst in their pocket notebooks and subsequently in a report and yet to date no action has been taken against the Minister.
This is surprising as swearing aggressively at a police officer constitutes a potential offence under the Public Order Act.
Mr Mitchell can count himself lucky.  My client, Mr X of Leicester was less fortunate.
Shopping in Morrisons Supermarket one day, he encountered a police officer in full uniform also doing his shopping.  Mr X approached him and said, ‘There is a 9.2 million pound deficit for the next 3 years and you are here shopping for bloody shoelaces and shoe polish.  Do you think this is acceptable?’
The officer was taken aback.  After a pause, the officer advised Mr X that he needed new laces in order to enable him to chase criminals.  The officer then warned Mr X that his conduct amounted to a breach of Section 5 of the Public Order Act, i.e. that Mr X had used threatening, abusive or insulting words or behaviour.
Mr X advised the officer that he would lodge a complaint and promptly visited the nearby Police Station.
Some 2 months later, Mr X was charged with breaching Section 5 of the Public Order Act and the case proceeded to trial.
The officer provided a statement and accused Mr X of saying, ‘There is a 3 something million deficit for the tax payers and you’re in here, why aren’t you out in the street dealing with crime’ and ‘I’m going to report you for shopping on duty.  You’re a bloody waste of money’.  During this encounter, Mr X was said to be aggressive and intimidating.
Somewhat remarkably, not only was Mr X prosecuted for his ‘threatening and abusive behaviour’ but he was also convicted by the Magistrates!  His defence was hindered by the Police or Crown Prosecution Service’s failure to disclose CCTV footage from the supermarket.
Mr X appealed and the case proceeded to the Crown Court.  In advance of the Appeal Hearing, the relevant CCTV footage was finally disclosed.  Although there is no audio, no one could conclude from the actions of Mr X that he was aggressive or intimidating in his encounter with the officer or, even more significantly, that the officer showed any signs of alarm or distress.  At Court, the prosecution case collapsed and no evidence was offered.
I am now pursuing a civil claim against the police for compensation on Mr. X’s behalf.
The police officer in question was caught by my client doing something he shouldn’t have. He was embarrassed.  Because Mr X had the temerity to lodge a formal complaint, the officer then instigated a formal prosecution. But for the CCTV footage Mr X could still have a conviction for breaching Section 5 of the Public Order Act. Instead, Mr X ought to be compensated by Leicestershire Constabulary and the individual officer and force’s reputation questioned. If, like in the case of (the rich and powerful) Andrew Mitchell, the officer took the view that there had been no offence committed, (the considerably less well off) Mr X and the police would have avoided all of this. In the meantime, I’m sure that the multi-million pound Leicestershire Police deficit is now even greater because of this ludicrous prosecution. Surely a man who claims to ‘run this fxxxing country’ would have something to say about that..

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Do Merseyside Police use excessive force with their Tasers?

By Iain Gould, Solicitor

I was saddened to hear about another Taser (‘stun gun’) attack by the police over the weekend.

In the early hours of Sunday morning, James McCarthy, a 22-year-old from the West Derby suburb Liverpool, was allegedly Tasered four times by a Merseyside Police officer. He was rushed to hospital by ambulance and is now in a ‘stable’ condition.

You can read the preliminary reports on the incident here.

I asked in my blog last year if the police are using tasers correctly. The Taser is a powerful and potentially deadly weapon. Training ought to emphasize the risks to the individuals concerned, especially if multiple discharges are made.

Given the physical and emotional trauma of just one discharge, if the family’s claim that Mr. McCarthy was Tasered four times is proven to be correct, it is difficult to imagine how that was a necessary, reasonable and proportionate use of force. If the police officers involved are shown to have used excessive force, serious disciplinary action and a compensation claim against the police ought to follow.

As a solicitor who specialises in these cases, I routinely receive instructions from people who have been victims of police brutality. Often my clients tell me that they pursue compensation claims so that the officers involved are disciplined and then trained properly about the use of force.  This, rather than the money they receive, often helps them come to terms with the emotional trauma caused by such a serious assault, which can linger long after the physical symptoms have resolved. It is not uncommon for people to become withdrawn, depressed and anxious after a Taser attack. The effects of being assaulted by the police, who represent authority and ought to be trusted, cannot be dismissed lightly.

Merseyside Police have rightly referred Sunday’s incident to the Independent Police Complaints Commission. Even if the IPCC find no evidence of wrongdoing, the fact that James McCarthy is still in hospital should serve to remind all police forces about the need for proper training, and for the officers issued with Tasers to think twice about their devastating effects before using them.

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BBC Radio interview about a recently settled police claim

I have recently settled a case on behalf of my clients Nick Fairbairn and friends.

They were involved in a bungled police operation which led to them being wrongfully stopped and detained at gunpoint.

With their consent I spoke about the case with BBC Radio recently.

Click on this link to BBC iplayer and scroll through to 2.37:57.

There you will hear both my client Nick Fairbairn and me being interviewed about the terrifying incident which led to their successful actions against the police claim.

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Access to Justice Denied

Listening to BBC Radio 4’s Today programme on 5 March, I was struck by how poorly thought out the Legal Aid Sentencing and Punishment of Offenders Bill (‘LASPO’) appears to be.

It will have devastating consequences for access to justice.

The Justice Secretary advocates reforms detailed in the Bill. This is currently being considered in the House of Lords and is likely to be made into an Act in April 2012, before implementation a year later.

If pushed through, the reforms will make it impossible for many claims against the police to be pursued. This is because the Bill removes the valuable ‘safety net’ of legal aid for previously eligible claimants in cases where allegations of deliberate or dishonest conduct do not apply.

To make matters worse, the current system of conditional fee (‘no win no fee’) agreements backed with after the event insurance (which protects against the risks of paying own disbursements and opponent’s fees in the event of failure) will be reformed to deny the claimant the right to claim a ‘success fee’ from their opponent if they win together with the cost of their insurance policy. These two things have allowed actions against the police solicitors like me to help my clients obtain justice and recover 100% of their damages after police wrongdoing.

Under the changes, these costs will come out of the claimant’s damages even if they are successful. As a result many cases will not be pursued as the financial benefit to the claimant if they win will be outweighed by the potential costs they will have to pay personally if they lose.

Ken Clarke insists that ‘We’re taking legal aid away from lawyers.’ By removing legal aid and reforming litigation funding from civil litigation which includes police compensation claims, police misconduct will go unpunished, lessons will not be learned, and access to justice will be denied. For Mr. Clarke, a barrister and QC, that is a shameful legacy.

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