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How serious does a ‘domestic’ incident have to be to justify arrest?

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.

Why its crucial to expose sexual misconduct by police officers

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.

How Police Avoid Accountability From Body Worn Cameras

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.

My Thoughts On “Finn’ s Law”

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.

Police Corruption Exposed

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. 
  1. 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.

 

False Imprisonment by a Security Guard

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.

How to recover damages for trespass by Bailiffs

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.