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Fe Fi Fo Fum, I smell the weed of an Englishman…

“It’s a pity mobile phones can’t record scents as well as scenes and sounds, isn’t it ?”

That is a thought that has been at the forefront of my mind on many occasions in recent times, particularly when I was writing my recent blog about the great benefit which the prevalence of mobile phones can offer society in terms of providing a proper record of Police interactions with individuals.

Mobile phone films can give us a full colour, ‘surround- sound’ picture of what was going on during a Police stop-and-search event, but they cannot testify to the truth or otherwise of Officer assertions that they can “smell cannabis” – often the only justification the Police can produce for the stop/search.

I have acted for numerous clients who are adamant that neither they nor anyone in their vicinity was or had been smoking weed, but that nevertheless Officers have made the accusation, seemingly secure in the knowledge that no-one after the event is going to be able to disprove it. From my knowledge of the wider facts of their cases, I am strongly inclined to believe my clients in this regard and can therefore only assume that the Officer has some other motivation for wanting to carry out a stop search (suspicion based on personal characteristics? needing to make an arrest quota?) that he is masking behind the ‘phantom smell’ of cannabis.

A classic example of this is the case of my client Tariq Stanley, whose complaint is currently being investigated by the Metropolitan Police. Tariq was sitting in his BMW car outside his home, watching a You Tube video on his phone (having earlier smoked a tobacco cigarette outside the car)  when the following scene unfolded (as this is the subject of ongoing investigation, I have redacted the Officer’s name)  –

  1. Towards the end of the video, I saw a marked police van pull up in the car park of another block of flats 100 meters or so away. I saw at least six uniformed officers get out. They congregated and were talking to each other. I paid them little attention. After a short time, I noticed one Officer approach in my direction. I understand this officer to be PC G.
  1. PC G continued his approach and I formed the impression that he was going to speak to me. I removed the headphones so they were around my neck. I remained sat in the car. PC G came up to the driver side window and said to me, “what are you doing here?” I told him that I lived here and pointed to my flat, which was directly above us. He said that I had a nice car.
  1. PC G then asked if I smoked. I told him that I had not long had a cigarette. PC G then told me that he smelt cannabis. I told him I didn’t smoke cannabis and I had not smoked cannabis.  I told him that he was lying. There was no smell of cannabis emanating from either myself or the car. The cigarette I had smoked contained tobacco only. I do not smoke cannabis. I had not been in the car for four or five days and no one else had access to it other than my girlfriend. She does not smoke cannabis.
  1. PC G said “I want to search you.”  I said he could, that I had nothing on me. He said  “Get out.” 

I have another ongoing case against Merseyside Police, which began after a young motorist (my client’s son) was stopped, with the Officer who pulled him over alleging that he had smelt cannabis as the young man’s car was passing him (he must have a nose like the Bisto kids) – despite the fact that my client’s son’s car window had been up. The young man did not know whether to laugh or cry at such a ridiculous assertion, but had no ‘objective’ way to disprove the allegation – which the Officer was now repeating for the benefit of any future audience of his ‘body camera’ – other than to insist that the officer carry out a drugs test upon him. Ultimately, and perhaps unsurprisingly, the officer declined to arrange such a test and let my client’s son go about his business – instead having seized the opportunity to arrest my client himself after he arrived on the scene to advocate on behalf of his son.

The ‘I smell cannabis’ line is probably the easiest ‘go to excuse’ of lazy/ borderline corrupt Policing practice, allowing an Officer to claim a ‘legitimate’ justification for the search of a person or vehicle, which would otherwise be forbidden by Code A of the Police and Criminal Evidence Act 1984 (PACE).

That similar problematic policing methods are also prevalent on the other side of the Atlantic was starkly highlighted by the comments made by New York City Judge April Newbauer in July 2019, when she deplored the practice of NYPD Officers trotting out the same formula time and time again with these scathing words –

“The time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop…So ubiquitous has police testimony about odors from cars become that it should be subject to a heightened level of scrutiny if it is to supply the grounds for a search.”

My own case experience, which leads me to echo the words of the New York Judge,  is borne out by a rigorous investigation/ statistical analysis carried out the College of Policing in 2017. A report entitled “Searching for Cannabis” concluded that “The smell of cannabis was not associated with outcomes…”. Out of a sample of 2,000 stop/search events the College of Policing team found that searches with the smell of cannabis recorded in their grounds were no more or less likely to result in a ‘Criminal Justice’ (CJ) outcome (i.e an arrest, caution, fine etc). This is a striking finding, as if the Officer was genuinely smelling cannabis on a person, wouldn’t you expect a greater likelihood of that individual being found in possession of the substance, than the search of someone who was not smelling of it? To my mind, borne out my own experience as highlighted above, this indicates that in many of these incidents, the Officers were simply lying about the smell of cannabis, to justify a search which had no other grounds.

Of course, the College of Policing did not suggest that falsehoods from the Officers were an explanation for the apparent discrepancy, but the results clearly caused that body real concern as the conclusion which they drew from the report and advocated to Chief Constables was that “a focus of suspect behaviour is much more important than the smell of cannabis in Officers’ grounds for search and is likely to lead to more productive searches in Criminal Justice terms.”

Whilst stopping short of advising that the (alleged) smell of cannabis should never constitute reasonable grounds (on its own) for a search, the College was clearly leaning heavily in that direction, and the current Authorised Professional Practice guidelines for use of stop and search powers warn that “it is not good practice for an officer to base his or her grounds for search on a single factor, such as the smell of cannabis alone…”

The College was doubtless also influenced in coming to this conclusion by a HM Inspectorate of Constabulary  legitimacy inspection in 2017 which found a difference in ‘find rates’ for black people subject to  drug searches of 29% against a higher ‘find rate’ of 37% for white people, suggesting “that weaker grounds might be used to search black people.” For what it is worth, both Tariq Stanley, and my client’s son in the Merseyside Police case, are black.

Sadly however, even the somewhat watered-down guidance issued by the College of Policing in 2017, was far from universally accepted, and was indeed explicitly rejected by many senior officers, including the Chief Constable of Merseyside Police, Andy Cooke who took to Twitter to boldly proclaim –

Smell of cannabis is sufficient to stop search and I will continue to encourage my officers to use it…”

Indeed, the smell of cannabis might have been shown to be a statistically valid ground for a stop search…if Officers’ claims to have smelt it were always scrupulously truthful.

If Police Officers, and Chief Constables, won’t listen to the logical guidance of their own professional body (the College of Policing) – then is a more radical alternative therefore necessary to tackle this problem?

There are many compelling arguments as to why cannabis should be decriminalised…It would move an industry which can be used to fund organised crime into the ‘straight’ economy, to the financial benefit of society; and it would allow the Police to concentrate their resources on controlling harder, far more dangerous and debilitating drugs, and violent crime. After all, you do not need to be an experienced police officer, lawyer or criminologist to realise that far more crimes of violence are committed under the influence of perfectly legal drug known as alcohol than by those using cannabis, which is also less addictive than alcohol and has recognised benefits to health (in professionally regulated circumstances). Certainly, countries such as Canada and Portugal which have legalised cannabis in recent times have hardly gone off the rails as a result.

But furthermore, a very simple and practical benefit that I can see accruing from such decriminalisation would be to remove any temptation for Officers to use the alleged scent of cannabis as an excuse where no other lawful reason exists to stop and search a person. This would, at a stroke, abolish the need for thousands of totally unnecessary Police-public interactions, saving Policing funds and resources and building up a greater trust between the Police and the communities they serve.

Many more people would escape being left with a bad taste in their mouths, and a distrust in the Police, because of the phantom smell of cannabis.

Police Data breach puts lives at risk

Last week, West Midlands Police were in the news.

Back in late May, a police notebook containing details of operations and a list of young people at risk from, or associated with, gangs was stolen from the back of an unmarked police car. Although the Force described the notebook as containing “rough notes”, the details within included names, addresses, mobile numbers and car registrations. At the time, officers from the gang unit had left the car unattended as they went on a foot chase in the Ladywood area of Birmingham.

According to Assistant Chief Constable Danny Long, “an investigation was immediately launched to determine any threat and risk posed” to any individual and a series of visits were made and formal letters sent to those who might be affected. ACC Long continued, “we did not feel it was appropriate to share this information any wider at the time, as that may have made the situation worse, or put people at further risk.”

Although the Force concluded that the blunder did not directly put anyone at risk, community leaders claim that since the loss of the confidential intelligence, families have been threatened and shootings in the area have increased.

I am presently acting for a family put at risk by a similar “loss” of confidential information by another police Force.

Back in the summer of 2019, police officers attended a residential premises to execute a search warrant of an individual suspected to be in the local Organised Crime Group and involved in the supply of class A drugs. During the course of the search, one officer left behind a key document, a “subject profile” which included sensitive police intelligence about that individual. That intelligence included information provided to the police by my client, Andrew.

Several days later, a member of the Organised Crime Group contacted the Force to confirm that they were in possession of the missing subject profile.

As with West Midlands police, the Force was obliged to report itself to the Information Commissioners Office.

In addition, the Force reviewed a copy of the subject profile to identify any individual put at risk because of the loss.

On review, it was determined that my client faced a high likelihood of “detrimental impact” i.e. that “he might suffer distress or become the victim of a crime”. In the circumstances, my client was contacted and informed.

Although the Force took some measures to help re-locate my client and install additional security measures to his family home, my client and his family believe that the preventative measures taken were wholly inadequate. As a result, my client has had to relocate to another part of the country and his family who remain in the area remain on high alert and feel in danger on a daily basis.

Both this case and the West Midlands case highlights how crucial it is that that data is kept safe and secure and that there is no excuse for these types of “schoolboy errors” which undermine confidence in the police and might very possibly put lives at risk.


Putting the “PR” in IOPC Investigations?

I am currently acting  in a number of high- profile cases for individuals who believe they may have been racially profiled by the Metropolitan Police: the cases of my clients Alice Agyepong and Tariq Stanley have already attracted a great deal of media attention.

They have rightly attracted this attention because there are serious individual questions for the Police to answer in each case, and because they also highlight wider concerns about institutional racism in Policing culture and practices.

Both of my clients were disappointed by the decision of the Independent Office for Police Conduct not to take charge of the investigations into their complaints; rather the IOPC has in each case delegated the investigation to the local Force (in both cases, the Met) albeit that a right of appeal to the IOPC exists at the end of the process.

Although my clients were disappointed, I was not surprised; the IOPC rarely takes a “hands on” approach to complaint investigations, save in the most serious of cases; but how is the seriousness of a case defined by the IOPC and is there consistency in its approach to the same?

Alice Agyepong’s case, as you may recall, involved an armed raid on a family home, with guns being trained on a 12-year-old boy who had been playing (in his own house) with a toy gun. I wrote in the following terms to the IOPC stressing the wider public interest of the case, and my genuine concerns as to the impartiality and potential prejudice of any investigation conducted by the Met themselves –

Our request is in the first part based upon the statement issued by Metropolitan Police Commander Kyle Gordon on 26 July, in which Commander Gordon asserted that he had watched the Body Worn Video footage of the incident and that the Officers involved had “acted in line with their training and my expectations”, and the telephone call  our client received from Inspector Bernie Hayton on the day following the incident (detailed in her complaint) during which the Inspector asserted that the Police response/ use of force was entirely proportionate.

These statements by senior officers seem to form part of a concerted ‘public relations’ campaign on the part of the Metropolitan Police Service  (to assert that there has been no misconduct or mistakes by their Officers) which in our opinion is not compatible with a fair and impartial investigation of our client’s complaint, and rather indicates that the outcome of the complaint has already been determined.

You will also be aware, that our client’s case has garnered a significant amount of attention amongst the national media, leading to the Equalities Minister Kemi Badenoch, during a Radio 4 interview, outrageously accusing our client of using “rhetoric” and “inflaming tensions” about Police behaviour (particularly, Police behaviour towards Black people) despite the Minister clearly not being aware of the most basic fact about this incident i.e that it involved armed Police threatening the use of firearms upon our client and her children.

In the circumstances, given the very serious nature of this case, involving a genuine threat of lethal force against a woman and her minor children, set against a background of genuine national – and indeed international – concern about Police use of disproportionate force against Black people we submit that the right course of action, to assure our client and the wider community that a fair and impartial investigation is being undertaken would be for the IOPC and not the Met to take conduct of the same.

In response to this, the IOPC maintained their decision, replying in the following terms –

The IOPC is responsible for ensuring the police complaints system in England and Wales works fairly and effectively. We do this in a number of different ways. We investigate the most serious incidents involving the police independently, however these make up a small proportion of public complaints against the police.  We are also responsible for reviewing the handling of serious complaints when required.  We set the standards by which policing bodies handle and investigate complaints and monitor/report on the performance of police forces’ professional standards departments. We also work with police forces to improve their complaint handling.

It was never Parliament’s intention that the IOPC would investigate all complaints against the police, and the legislation and statutory guidance sets out the circumstances in which complaints must be referred to the IOPC, and the decisions the IOPC must take upon referral.  This can include requiring a Professional Standards Department of the relevant force investigate the matter.  The IOPC is not, and has never been resourced to consider all complaints. In this particular instance, we considered the referral of this matter and determined it was suitable for local investigation. Whilst the decision not to independently investigate this incident is clearly disappointing to you and your client, we have considered the referral and made our determination, as we are required to do under the legislation. Therefore, the IOPC will not be re-determining their original decision.

The same position was adopted by the IOPC in regards to Mr Stanley’s complaint, notwithstanding that his allegations include racial profiling and grossly excessive force, including entirely unnecessary handcuffing, resulting in serious injury and subjecting him to a strip- search; significant issues as to the integrity and honesty of the Officers involved have been raised. However, the IOPC position is that such a case remains suitable for internal investigation by the Met – despite their acknowledgement that Mr Stanley sustained serious injury. IOPC ‘oversight’ will in that case, as with the vast majority, be limited to sight of the report prepared by the Met’s Professional Standards Unit, and thereafter availability as the designated appeal body.

It was with some surprise, against this background, that I read last week that the IOPC has decided to assume direct conduct of the complaint investigation involving the international athletes Bianca Williams and Ricardo dos Santos, both of whom are protégés of former Olympic champion Linford Christie, who has spoken up on their behalf.

Whilst the events that happened to Ms Williams and Mr dos Santos were no doubt distressing, and doubly so because they took place in the presence of the couples’ young child, all the hallmarks of ‘seriousness’ about the case seem to fall short of the comparative factors in my client’s cases as highlighted above: the perception of racial profiling exists in all of these cases, but the levels of force used against Mr Stanley and Ms Agyepong (and her children) greatly outweigh the force used in the case of the athletes.

By way of a further comparison, I could also offer the case of my client Anthony which involved a stop/search leaving an innocent black man with a broken arm. This matter was also deemed by the IOPC suitable for local investigation (in that case, by West Midlands Police).

There seems to be a significant lack of consistency and transparency being displayed here in how the IOPC is assessing cases and determining whether independent investigation is required, and I am, frankly, concerned that the announcement by the IOPC that it will take direct responsibility for the complaint investigation into the Williams/ dos Santos case is little more than a “PR” exercise, primarily motivated by the public profile of the individuals concerned, and that of their mentor Linford Christie.

How can the ordinary man or woman in the street have faith that the IOPC is diligently discharging its much touted role as the “Police Watchdog”  in a rigorous, analytical and truly objective and independent way if its assessment of “seriousness” seems to have more to do with who the complainants are, than the actual facts of the complaint?

None of the questions my clients frequently raise about the fitness for purpose of the IOPC are being answered by this sort of inconsistent approach; at least, not answered positively.

As ever, Claimants are left with far more likelihood of justice through the Court system than our dysfunctional Police complaint process.

Police Officer Who Broke My Client’s Leg Sentenced To Two Years’ Imprisonment

In a recent blog, I recounted the case of my client (identified as Robert) who successfully sued Hertfordshire Police for damages of £100,000 following an incident in which his leg was broken by a Police Officer who struck him three times with ‘overarm’ baton blows – twice whilst Robert was in fact being held by two other Officers (albeit that he was resisting being pulled out of a car by them) – and for a third time after he had been pulled out of the car and was lying on the ground, leaving Robert permanently disabled. It was a brutal assault upon an unarmed man who, whilst attempting to resist being pulled out of his car, was not being aggressive (rather he was in a state of shock at an over the top Police stop which had already resulted in his car windows been shattered and Robert himself being doused with PAVA gas) and was not offering any violence to the Officers involved.

At least that was my client’s account; it is one which I believe, and I believe you will too, if you have watched the video of the incident, which is embedded in my previous blog.

The one Officer who gave evidence to the contrary – and who accused my client of ‘kicking out’ aggressively at him was – perhaps unsurprisingly – the Officer who delivered the baton strikes. This Officer was PC Nicholas Musto.

It was always my view that PC Musto, who in the evidence he gave at the trial of Robert’s claim highlighted his former career as an actor, was lying about the ‘kicking’ by Robert in a cynical attempt to justify the brutal force he used, and was also grossly exaggerating any risk posed to the Officers in the incident by a torch in the car, or the possibility of Robert using his car as a ‘battering ram’.

Certainly, the trial Judge ruled that Robert had not been attempting to kick any of the Officers, that the presence of the torch in the car had “been given an importance after the incident”  and rejected “any genuine concern that he [Robert] could use the car as some sort of lethal weapon”… although she stopped short of finding that PC Musto had told deliberate falsehoods.

I can now report that PC Nicholas Musto was recently sentenced to 2 years imprisonment for the crime of misconduct in public office. It transpires that PC Musto had been conducting an affair with a female victim of crime, a vulnerable woman with mental health problems, whom he met through the course of his policing duties for over ten years between 2007 – 2018. During this time Musto lied to his superiors, denying in 2013 that he was involved with the woman. The truth was eventually revealed when the woman turned to the Police for help in 2018 and the IOPC became involved. Amongst the evidence she gave was that PC Musto would regularly visit her in uniform, when he was on duty, for casual sex.

This type of ‘sex-ploitation’ of vulnerable female victims of crime, or other vulnerable women (including minors) encountered by Officers in the course of their duties, is sadly a real and present danger in our society. I have represented numerous victims of such crimes by Police officers, and you can read about some of their cases here and here.

It goes without saying that for a Police Officer to exploit the honour and privilege of his position, and the authority which it bestows upon him, to enter into sexual relationships with vulnerable women (often the victims of previous domestic abuse and/or suffering from mental health problems) is a gross abuse of power, and not merely a dereliction of duty but an active inversion of it.

PC Musto must have known that what he was doing was wrong, but shamelessly lied to his superiors and fellow Officers to cover it up. It would hardly seem surprising, therefore, that he would be able to bring himself to tell lies about the victim of his own physical assault does it?

How terribly ironic now are the words with which PC Musto boasted in the statement he gave to the County Court, when attempting to frustrate Robert’s legitimate claim for compensation –

“I have always had a strong sense of what was right and wrong even as a child.”

In the same statement he also said that he had chosen to remain a ‘front line’ Police Constable in order to “best serve the communities that I police”, and furthermore went on to assert “I am proud of the fact that at no time has any substantiated complaint been made against me.” With hindsight, we can now see that his ‘pride’ evidently lay in the fact that – at that time – his ongoing misconduct with the vulnerable woman had not been ‘found out’.

PC Musto may not have faced criminal justice for what he did to Robert, but the good news is that he is now off the streets and following a misconduct hearing, dishonourably discharged from the Police force, and so will never again be in a position to exploit victims of crime for sex, nor gratify himself with the kind of unlawful violence he unleashed upon Robert.   

Trespass by Enforcement Agents: Making the Bailiffs Pay Up

 

 

 

 

Paragraph 19 of the National Standards for Enforcement Agents, published by the Ministry of Justice on 6 April 2014, states that:

“Enforcement agents must act within the law at all times, including all legislation …”

A High Court Writ is not to be regarded as a kind of blank cheque or a licence to act with impunity and yet certain Enforcement companies appear to think and behave otherwise.

This past week, the Court gave Judgment in an action brought by my client Neil Tunstall following trial. It found that Direct Collections Bailiffs Ltd (DCBL) were liable to my client for trespass, assault and Misuse of Private Information and awarded Neil  £10,000 damages plus costs.

Neil lived in a one-bedroomed ground floor flat in Kent and had done for approximately four months.  He was the lawful tenant.

On the afternoon of the 12th of June 2018, Neil was visited by a Mr Hussain who described himself as an Enforcement Agent employed by DCBL. He said he was looking for Nathan Beck.  Neil denied he was or knew Nathan to which Mr Hussain told Neil that he had to “prove it”. Neil considered Mr Hussain’s approach rude and arrogant and took exception. He said he didn’t have to prove anything.  Mr Hussain then showed some ID and advised that he had a Writ to enter the flat.

Mr Hussain then forced his way into the flat. Neil advised him to “get out” several times because he was causing Neil distress. Neil was obliged to call 999 and as he did so, Mr Hussain began to rifle through Neil’s belongings before taking a photograph of Neil’s tenancy agreement.

Having apparently satisfied himself that Neil was not the debtor, he then left.

The incident lasted no more than 5 minutes but had a profound and lasting impact on Neil.  Neil, who had a pre- existing anxiety condition, and who had previously experienced a period of homelessness, felt intimidated by the Bailiff and was outraged and upset that his personal privacy and the security of his home was being violated in such a disrespectful and uncaring manner.

Neil subsequently described feeling “terrified, helpless and pathetic…unable to assert my rights, unable to force him out.”

Because of how aggressive and rude Mr Hussain was, Neil recorded the encounter on his tablet and passed it to Rob Warner of Crimebodge fame who filed a video blog on You Tube about the case. With Rob and Neil’s permission, I attach the video below for you to view:


On viewing the footage and considering Neil’s instructions, I agreed with Rob that Neil had a good claim for trespass, assault and breach of privacy.

I will add here as an aside, that Neil was so (rightly) outraged by the Enforcement Agent’s behaviour, that he also reported the matter to Kent Police, only to be ‘fobbed off’ by them, notwithstanding the fact that the Police obtained a copy of the Writ and confirmed that Neil was not the debtor named on it, nor was his flat the address identified on it. Sadly, this just confirms my own pre-existing impression that the Police tend to look upon bailiffs/ Enforcement Agents as their ‘little brothers’ and have a tendency to side with them against members of the general public.

On Neil’s behalf I intimated a claim. In response,  DCBL advised that liability was disputed.  In the circumstances, I commissioned medical evidence and issued court proceedings.

DCBL filed a robust defence of surprising breadth, claiming that Mr Hussain’s attendance at the flat was carried out lawfully and in line with Schedule 12 of the Tribunals Courts and Enforcement Act 2007 and that there could not be a trespass where an enforcement officer executed his enforcement powers pursuant to Schedule 12 of that Act.

Schedule 12 states;

Entry without warrant

14(1) An enforcement agent may enter relevant premises to search for and take control of goods.

(2) Where there are different relevant premises this paragraph authorises entry to each of them.

(3) This paragraph authorises repeated entry to the same premises, subject to any restriction in regulations.

(4) If the enforcement agent is acting under section 72(1) (CRAR), the only relevant premises are the demised premises.

(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) Otherwise premises are relevant if the enforcement agent reasonably believes that they are the place, or one of the places, where the debtor—

(a)usually lives, or

(b)carries on a trade or business.

Remedies available to the debtor

66(1) This paragraph applies where an enforcement agent—

(a) breaches a provision of this Schedule, or

(b) acts under an enforcement power under a writ, warrant, liability order or other instrument that is defective.

(2) The breach or defect does not make the enforcement agent, or a person he is acting for, a trespasser.

(3) But the debtor may bring proceedings under this paragraph.

In their Defence, DCBL boldly asserted the proposition that – “An Enforcement Agent cannot be liable for trespass in any circumstances as per the Tribunals, Courts and Enforcement Act 2007, Schedule 12 Section 66(1)(2).”

In running such a Defence, it is my firm belief that DCBL were displaying ‘from the boardroom’ – as their individual bailiffs often do ‘on the doorstep’  – an arrogant misunderstanding, or even blatant disregard for the law. Essentially, DCBL were attempting to twist a provision which was designed to stop technical breaches of the Schedule, or defects in the writ, rendering a bailiff who was dealing with the actual debtor a trespasser in circumstances in which he would not otherwise be, into some kind of ‘general immunity’ from suit in trespass.

Neil, of course, was not the debtor named in the writ and therefore, I correctly argued, any defence available under s.66 could not apply to his claim; he was not a debtor, but an innocent third party.

If DCBL were correct in their interpretation of Schedule 12, this would in effect mean that Enforcement Agents had ‘carte blanche’ to enter the home of whoever they felt like, on the flimsiest of pretexts, if there was the vaguest suggestion that the premises were in someway linked to a debtor.

Of course, they were not correct, and whether they wanted to admit it or not, the responsibility now lay on the shoulders of DCBL to prove that Mr Hussain was a legitimately licenced High Court Enforcement Agent, that they had a valid writ and reasonable grounds to suspect that Neil’s house was the real debtor’s residence (as it was not the address of the debtor as given on the writ).

Given that the burden of proof lay with DCBL, I expected their solicitors to file detailed evidence in support of their claims.  All I got was a redacted Writ and a ‘search and trace’ result only, which told us very little.  The case proceeded to trial and as it did so I became more and more confident of success.

Why ?

Firstly, DCBL  failed to adduce evidence that Mr Hussain was a certified High Court Enforcement Agent, pursuant to s.63(2) of the Act and Schedule 12 para.2.

63 Enforcement agents

(1) This section and section 64 apply for the purposes of Schedule 12.

(2) An individual may act as an enforcement agent only if one of these applies—

(a) he acts under a certificate under section 64;

(b) he is exempt;

(c) he acts in the presence and under the direction of a person to whom paragraph (a) or (b) applies.

(3) An individual is exempt if he acts in the course of his duty as one of these—

(a) a constable;

(b) an officer of Revenue and Customs;

(6) A person is guilty of an offence if, knowingly or recklessly, he purports to act as an enforcement agent without being authorised to do so by subsection (2).

Enforcement agents

2(1) In this Schedule “enforcement agent” means an individual authorised by section 63(2) to act as an enforcement agent.

Secondly, DCBL failed to adduce any evidence that Mr Hussain held a reasonable belief that the debtor usually lived or might reasonably be believed to be living at the flat. Similarly, there was no evidence to support the assertion in the Defence that the agent had reason to suspect that Neil was the person named on the writ.  There was no suggestion that Neil was of similar age, ethnicity or height to the debtor; basic information which a reasonable Enforcement Agent ought to have ascertained prior to entering a property not stipulated on a writ.

Thirdly, DCBL failed to adduce a copy of the alleged “Notice of Enforcement” which must be sent to the premises prior to a bailiff’s attendance there.  Neil maintained that no such letter/ notice had ever been received.  Such a Notice is a prerequisite to taking control of goods under para. 7 of Schedule 12 of the Act:

Notice of enforcement

7(1)An enforcement agent may not take control of goods unless the debtor has been given notice.

(2)Regulations must state—

(a)the minimum period of notice;

(b)the form of the notice;

(c)what it must contain;

(d)how it must be given;

(e)who must give it.

(3)The enforcement agent must keep a record of the time when the notice is given.

At Trial, having heard evidence from Neil himself, and arguments from DCBL’s barrister (but, rather disrespectfully, no attendance from either Mr Hussain or any other employee or director of DCBL) the Court concluded that DCBL, through the actions of their bailiff had –

  • assaulted Neil (through fear/ intimidation, which does not require a physical ‘battery’)
  • trespassed in Neil’s home (having no ‘blanket immunity’ as they had contested, but needing at all times to show a reasonable belief that these were the premises of the actual debtor, which they had not, and nor had they proved service of a prior Notice of enforcement)
  • misused Neil’s private information by rifling through and photographing his personal documents

The Court also award Neil “aggravated” i.e enhanced damages to reflect the bailiff’s arrogant and high- handed conduct, and his failure to respect Neil’s personal integrity, thereby causing severe injury to his feelings.

Is it asking too much that those companies such as DCBL who make millions of pounds of profit each year through enforcing penalties for breaches of the law, should themselves both know what the law is, and respect it, whether in their company policies or the behaviour of their bailiffs?

Either DCBL do not understand the law which underpins their entire corporate existence and operations, or are blatantly disregarding it, as evidenced by the bogus Defence they put forwards in response to Neil’s claim.

A hostile or forced entry into someone’s home – even in pursuance to a Court Writ – is an invasion of privacy and violation of a person’s security which should be at all times conducted with professionalism and propriety, as well as a scrupulous respect for the law. Too often it is not; and one suspects that the way DCBL conducts itself from the very top (as evidenced by their response to this claim) is conducive to the kind of ‘cowboy culture’ we should not have to put with from those who bear the grandiose title of “High Court Enforcement Agents.”

Hopefully, DCBL will now show their respect for the law by promptly paying Neil’s damages within 14 days – failing which, I may have to send in the bailiffs…

 

Police Body Camera Footage: Big Brother Turns A Blind Eye?

I was dismayed this week to read the comments of one of the country’s most senior Police Officers, the Metropolitan Police Deputy Commissioner Sir Steve House, who was encouraging his fellow Officers at the Police Superintendents Association to be “more discriminating” when it comes to releasing Body Camera footage.

Whilst I will pause to applaud his honesty – Sir Steve admitted his motivation was to prevent the Police from “looking bad” – I am concerned that his calls for footage to be withheld except “in extremis” will only reinforce a culture of obstruction, delay and lack of transparency when it comes to legitimate requests for the release of this footage, whether that request comes from the general public, the media – or those individuals who have been on the ‘receiving end’ of Police violence.

As matters stand, a number of my clients involved in high-profile cases against the Met have had their very reasonable requests for early release of body camera footage frustrated and delayed by the Met’s Information Rights Unit, which displays a tendency to hide behind jargon rather than facts.

The automatic response of most Police Forces to a request for release of body camera footage by a person who is pursuing a complaint against the Force, is to claim exemption under Data Protection laws which allow refusal of a Subject Access request for data where such release would “prejudice an official or legal inquiry, investigation or procedure” – Section 44(4)(a)(b)(c)of the DPA 2018 (that’s a whole thicket of sub- clauses to hide behind isn’t it?).

How would the release of video footage to complainants in any way ‘prejudice’ the complaint investigation however? Would it not in fact assist in the investigation by allowing the complainant to see that footage and comment upon it early in the process? (It is hard to imagine the Police withholding video footage from a victim of crime until they had decided whether or not the criminal suspect should be charged). When the Met refuses to allow a mother access to the body camera footage of an armed police raid on her house (in which she and her children, including her 12 year old son had guns trained on them), they hide behind the ‘standard line’ of not wanting to cause prejudice to the complaint investigation, without being able to offer a single specific example of how allowing my client to see that footage would be ‘prejudicial’ to the fair outcome of her complaint. Rather, it is the Met’s defensive and obstructive conduct in this regard, which causes my client to – rightfully, in my opinion – fear that the investigation is, in fact, prejudiced against her and in favour of the Officers, from the outset.

Comments from Met leadership, like those of Sir Steve House, are not helping a culture of what I consider to be deliberate delay and obfuscation on the part of the Police – the exact opposite of what the Met should be doing in order to truly live up to its mission statement of “Earning the trust and confidence of every community…”

Or perhaps that mission statement is just ‘jargon’ as well?

In a world in which officers are routinely equipped with these cameras, there should be greater transparency and a greater willingness to show both the good and the bad, for the greater health of Policing culture and the trust people place in that essential institution. 

It is not right that the Police should selectively disclose only the camera footage that they want, allowing officers’s misdeeds to be hidden. This would be to throw away the benefits that would accrue from this technology if people can indeed trust that their interactions in Police encounters are being recorded and preserved on cameras, and will in the future be easily accessible. This helps Police Officers as much as members of the public: false complaints against officers will be easily quashed, and equally it offers protection to people from police violence and misuse of powers.

In my experience, a greater prevalence of Police body camera use is good for everybody. It helps to reassure the public as to Police accountability, and that there will be an objective record of matters which, in the past would have been the domain of ‘one person’s word against two (or more) officers’. This belief is borne out by statistics which show that the introduction of body camera use in recent years led to a dramatic reduction in –

        (a)   Taser use (or misuse): during 2017, the first year following the introduction of body cameras for their Officers, West Yorkshire Police recorded a 27% drop in the number of incidents in which tasers were discharged by their Officers (despite there also being a 26% increase in the number of incidents in which tasers were drawn/ aimed that year).

        (b) The overall number of complaints against Officers: a 2016 study by Cambridge University showed a 93% annual reduction in complaints following the roll out of body cameras (albeit the study involved both UK and US Police forces).

I think there is little doubt that these statistics indicate that Police officers are better at policing their own conduct, when they know that what they are doing and saying is being caught on camera. I would echo here the comments of the academic who led the Cambridge research highlighted above: that Officers “become more accountable” – surely a very good thing – “and modify their behaviour accordingly.”

(It was also of note during the study that ‘control groups’ of front line officers from each Force who patrolled without body cameras were also the subject of less complaints, something which Dr Ariel identified as “contagious accountability” – a sign that good practice and changes in policing culture were becoming embedded across each Force as the number of cameras increased, and Officers adapted to life under frequent, objective scrutiny).

Police leadership should therefore be encouraging greater use of these cameras, and greater transparency through ease of access to this footage, not a culture of keeping the footage under lock and key unless it suits Police purposes. Sadly, rather than learning the positive lessons from this, an officer of the seniority of Sir Steve House now seems to want to ‘turn the clock’ back on accountability, by keeping body camera footage for ‘Police eyes only’ in most cases. In my opinion, this would significantly undermine the benefits of ‘camera culture’ as it would lead some Officers to act more recklessly, rudely or violently, knowing that there was a much reduced likelihood of any incriminating footage seeing the light of day.

By way of example; one of the key features of the case of my client Anthony, highlighted in my previous blog – a black man subject to a negative stop and search which left him requiring an A&E visit after his elbow was fractured – is that none of the Officers, despite initiating the contact with Anthony on the basis that they apparently suspected him to be a drugs dealer, bothered to activate their cameras until after Anthony had been taken to the floor, his arm broken, and handcuffs applied. This in my view is completely unacceptable, the entire incident should have been recorded from the outset and my client allowed access to that footage from day one of his complaint (as it is, almost a year later, the Police are still refusing to release the footage). Surely everyone would agree that this case is a perfect example as to why there should be stricter rules governing Police conduct to require greater use of cameras coupled with greater ease of access to the resulting footage, in the interests of everyone’s safety and the essential maintenance of trust and respect in the Police. Selective, arbitrary use of cameras by front line officers, and then highly defensive comments, encouraging restrictive and secretive practices, like those of the Deputy Commissioner have the opposite effect.

As someone who has viewed hundreds of hours of Police camera footage during the course of my career, I also don’t buy the line Sir Steve House was pushing; that releasing footage may mislead the general public. People aren’t stupid; they know what they are looking at and if Officers’ behaviour on video looks “unnecessary or heavy handed” then the truth is, that it probably is just that.

I would urge the Police leadership to move in the opposite direction to that apparently advised by the Met’s Deputy Commissioner, and embrace this opportunity to be more transparent, fair and accountable in their dealings with the public, particularly those numerous members of  the public who often very legitimately believe they have been wronged by abusive, oppressive or heavy handed Police conduct.

Step into the future; don’t hide in the past.

The GOWISELY Procedure and Unlawful Stop and Search

A story which caught my eye last week –chiming very much with my own thoughts in recent months – was a report in the Guardian newspaper highlighting the fact that ‘stop and search’ procedures conducted by the Metropolitan Police had risen 40% during Lockdown (April – June 2020), equating to over 1,000 searches a day, and yet a lower proportion of these searches than normal (only 21%, down from 33%) led to arrests, fines or cautions. 

I believe this is strongly indicative of bored or otherwise at a ‘loose end’ Officers, with nothing better to do, indiscriminately targeting members of the public without the requisite legal suspicion of criminality. I would echo here the concerns expressed by Maurice Mcleod, chief executive of Race On The Agenda, who said – 

The increased proportion of stops that result in no action suggests that stops are being carried out based on officers pre- existing biases rather than on genuine suspicion of criminality…increasingly disproportionate use of these powers will further damage relations between the police and some of London’s communities. 

It is an undisputed fact that black people, especially black men, are disproportionately the target of Police stop/search procedures, and this has no doubt contributed significantly to the lack of trust black people have towards the Police, as encapsulated in a recent poll by the charity Hope Not Hate, which highlighted that 8 out of 10 black Britons felt that the Police were biased against people from their background/ ethnic group. 

This is despite the fact that Code A of PACE (The Police & Criminal Evidence Act 1984), which governs the legal exercise of stop/search powers, specifically provides against Officers using generic “personal factors” – including a person’s race/sex/appearance – as a basis for suspicion of that individual (para 2.2B of Code A). 

Many of the cases which I handle illustrate the human stories behind these statistics. Take, for example, my client James, a black man who was going about his lawful business in London in January 2019, and who was targeted by a (literal) bus load of Metropolitan officers who piled out of their vehicle and ordered him to halt. 

James had being doing nothing more mundane than posting a letter, and we can be sceptical that the officer’s purported suspicions that he was in possession of drugs were anything more than – shall we say – skin deep. 

The officers exiting their vehicle, ignored a white man who was present and quickly surrounded James, stating that he had been behaving suspiciously and they wanted to search him under the Misuse of Drugs Act. However, their grounds for suspicion appeared to be little more than a perception that James had ‘started to walk away’ on seeing their vehicle. 

The distinct impression I drew from watching this video was that the officers had been looking for a stop/search ‘subject’ to ‘blood’ a junior colleague i.e find someone (a black man?) to practice delivering his “GOWISELY” procedure. More apparently experienced officers can be heard orchestrating the search and prompting the younger officer as to what to say. 

What is GOWISELY? 

GOWISELY is an acronym used by officers as an ‘aide memoire’ for the information they are supposed to give to a stop/search subject, prior to commencing the search, to ensure compliance with Code A of PACE. If the GOWISELY procedure is not followed, then the search is highly likely to have been unlawful – 

Grounds – A clear explanation of the reasons for the Officer’s search, i.e why he finds you suspicious

Object – What the Officer will be looking for (e.g drugs)

Warrant – Warrant card to be produced, if the Officer is not in uniform

Identity – The Officer must state their name and collar number  (except in terrorism cases, where the Officer can provide just his collar number)

Station – The Officer must identify the station at which he is based

Entitlement – The Officer must inform you of your entitlement to a copy of the stop/search record (which will be either handwritten or, increasingly, electronically recorded)

Legal – The Officer must specify the legislation under which he is searching you e.g the Misuse of Drugs Act

You – The Officer must clearly explain to you, that you are being detained for the purpose of a search. 

However, GOWISELY is not a magic spell which officers can use as a shield against a valid complaint or claim for damages. Simply because the words have been said, does not mean that the officer’s action in conducting the search is lawful, and in my experience – as in James’s case – officers all too often ride rough-shod over the other sections of Code A, whilst paying ‘lip service’ to the GOWISELY speech. 

First and foremost, the grounds for the search must be based on a genuine and objectively reasonable suspicion held by the officer, and, as highlighted above, that does not include generic assumptions about a person because of their race/ sex or other factors of appearance. 

Furthermore, para 3.2 of Code A enjoins officers not to use force unless it is established that the person being searched is resistant/ unwilling to co- operate. “Reasonable force” – according to Code A (if not the general practice of Officers on the street) – is a “last resort” if absolutely necessary to conduct the search/ detain a person, and hence should not be the ‘norm’. 

In the case of my client James, however, as the body camera footage indisputably testifies, the officers took hold of James’s hands as soon as they commenced the search, as if it were a simple matter of course for them, and, in my opinion, without any reasonable, lawful justification for that use of force. Up until that point, James had been polite and entirely peaceable towards the officers. I feel that all too often, officers are guilty of the kind of lazy thinking which, as I have highlighted in an earlier blog, leads them to equate a reason to arrest with justification for handcuffing, and in the type of incident we are dealing with here, leads them to consider a stop/search subject’s body equally ‘fair game’ for automatic use of force, whether that be laying on of hands, pulling a person’s arms, twisting them behind his back or indeed, handcuffing him. 

When James did no more than protest about two officers unnecessarily holding his hands whilst another officer searched him (he was not refusing the search), matters quickly escalated with  numerous officers combining to force James’s hands behind his back, handcuff him, kick him, force him against a wall – and then drag him to their van stating he was under arrest for “obstruction” of the search. 

James is far from being the only client I am currently representing who has experienced such unjustified uses of force.

Anthony, another client of mine and another black man, was, during the course of a ‘negative’ stop search by West Midlands Police, left at the end of the search free to go about his business…with a broken elbow. All indications are that Anthony, like James, had been politely engaging with the officers – doing no more than, as was his right, requesting information as to the basis of the search – and, just like James, was on the end of almost immediate and almost certainly gratuitous force. One of the officers, indeed, demonstrated his disregard for Anthony and his assumption that use of force was normal in these circumstances, no big deal perhaps, by mocking Anthony’s exclamations of distress and requests for assistance with his broken arm with the words “You’ll win a BAFTA for this…” 

The claims for Anthony, James and many others are continuing. Perhaps by succeeding in claims for damages for individuals like my clients, we will begin to change the police culture of both unnecessary stops and unnecessarily violent searches, which the Guardian’s figures and my own day-to-day experience indicate is a significant ongoing problem. 

Officers need to police the streets; and through the legal mechanisms of complaints and claims, and journalistic reportage, we need to police the powers they use on those streets, otherwise the trust of many people and communities in this country’s system of law and order, may be irreparably damaged.

£100,000 damages for Police Brutality

The shocking footage embedded in this blog captures the moment in May 2014 when my client Robert had his leg broken by a Hertfordshire Police Constable, who delivered no less than 3 ‘overarm’ blows with his baton to Robert’s shin.  The first two strikes were delivered whilst Robert was being held (effectively immobile) by two of the Officer’s colleagues, and the third, and most gratuitous blow, fell whilst Robert was already lying on the ground, howling in agony from the results of the first two (so called) ‘distraction strikes’.

In the moments leading up to this incident Robert, a middle- aged man of good character, had been going about the normal activities of daily suburban life, driving his elderly father’s motor car on his way to get a haircut.

To Robert’s complete shock, just as he was approaching the junction with a roundabout, a Police car with blaring sirens and flashing lights screeched to a halt in front of him and an Officer began aggressively shouting at Robert through the window of his car, demanding that Robert get out of the car, though without any explanation as to why. Almost without pause, the Officer then began to smash his baton against the driver’s window of Robert’s car, which caused Robert to panic and move his car a very short distance, before stopping again.  Other Police vehicles and Officers rapidly arrived and within seconds of the stop occurring, Robert, who was in a state of complete shock, bewilderment and panic, found the windows of his car being smashed in from left and right by Police Officers, showering Robert with shards of glass, and a canister of PAVA spray being discharged into the interior of the car, right into his face.  As a result of the PAVA spray Robert’s face felt as though it was being burned, and his eyes were ‘glued shut’ such that he was now struggling to see anything.

Unbeknownst to Robert, a warrant had been issued for his arrest in connection with a failure to report a change in his financial circumstances to the DWP. This arose from a claim for Housing Benefit and was due to an innocent administrative error by Robert.  The offence of which Robert was suspected was clearly a non-violent offence, and, I think everyone would agree, somewhat lowdown on the scale of seriousness, but nevertheless the Police seemed to be unleashing the kind of force upon Robert and his vehicle that they would utilise if a suspected drug dealer or murderer was inside the car. 

In the circumstances, it is in my opinion not at all surprising that Robert after initially attempting to move his car away (he moved a very short distance before stopping when he realised he had bumped into the car in front – a manoeuvre which caused no apparent damage to either vehicle), then froze in his seat unwilling to get out of the car because he was terrified as to what the Police were going to do to him.

It is quite clear from the attached video that a mere 20 seconds elapsed between the start of the Police stop and when the first Officer commenced smashing in the windows of the car around Robert, and in my opinion it was completely unacceptable that they escalated to this level of violence so quickly without giving Robert a chance to process or understand what was happening to him. 

Robert in the moments that followed was guilty of nothing more than gripping his steering wheel in terror (as many of us might have done in the circumstances). Whilst he did not willingly exit the car, equally he was in no way fighting back, as two Officers took hold of him and pulled him so that he was turned around and facing out of the car, with his feet on the road, and he was in this position when the baton wielding Officer struck. 

The Police Officer who delivered the baton strikes to Robert attempted to justify what he did by a variety of what were, in my opinion, quite deliberate lies and exaggerations, variously claiming:-

·         That Robert was revving his engine and using, or about to use, his car as a ‘battering ram’ to escape.

·         That Robert was not under the control of his colleagues.

·         That Robert was repeatedly kicking out at him and another officer.

·         That Robert was reaching for a weapon inside the car (Indeed – he was subsequently charged with possession of an offensive weapon, but this charge was later quietly dropped – see below).

All of these statements by the Officer were ultimately rejected by the Trial Judge at Cambridge County Court, and the CCTV footage was crucial in helping her to come to these conclusions; she referred to the footage frequently when rejecting the Officer’s allegations listed above, and this is a prime example of the importance of video footage in modern legal proceedings. Without that footage, we have to ask whether the Officer’s untruths would have hoodwinked the Judge – this particular Officer having been, on his own account, an actor in civilian life…

It turned out that the alleged weapon in the car was not only nothing more than a torch, but was something that the Judge, delicately but clearly, concluded the Officers had invested with “importance after the incident”. My own interpretation is that they were looking for an excuse to attempt to justify/explain the degree of brutal force that had been used upon Robert.

Probably the most reprehensible excuse the Officer used was to claim that it was necessary and justified for him to deliver the third baton strike to Robert, because (the Officer claimed) he could hear one of his colleagues calling out in pain.  The fact is that the Officers who had hold of Robert had pulled him out of the car and the three of them had fallen together in a heap on the floor, but Robert was certainly not attacking either of those Officers.

Indeed, it was never alleged that Robert had assaulted any of the Officers, and I would have been very surprised if the baton wielding Officer could have heard any alleged cry from his colleague over the sound of Robert’s screams of pain (his shin bone having been shattered) which are distressingly captured on the second video attached to this blog, which was filmed by a bystander who was evidently horrified by what he was witnessing.

The effects of the Officers’ actions was to break Robert’s right shin bone in two, necessitating an operation to insert a metal rod and screws into his leg, and leaving him crippled in that leg for life.  Robert was unable to weight bear on his injured leg for about four months after this event, and struggled to care for his elderly father during this time. As climbing the staircase was such a struggle during this time, he had to sleep on his couch and keep bottles beside him to urinate in. Prior to this incident, Robert used to run and play football regularly, as well as doing most of the housework and shopping for himself and his Dad. Now Robert was reduced to being an invalid in need of care himself, which put significant emotional strain upon him.

Although the condition of Robert’s leg has improved as the years have gone by, he remains in need of another operation to remove some of the metal work and even after that operation will be left with life-long pain and discomfort in his leg, affecting his ability to kneel down and to use ladders, and which will also restrict his comfortable walking distance. He will never be able to return to playing football or running. He has also been left with mental scars in the form of Post Traumatic Stress Disorder.

At Trial, the Judge ruled, quite correctly, that the baton strikes were not merely an unreasonable use of force but in fact were ‘grossly disproportionate’.

Nevertheless, Hertfordshire Police were entirely unrepentant and unapologetic, and put Robert through further distress and anxiety by appealing the decision of the Trial Judge, which necessitated further hearings over the course of no less than 20 months in the High Court and the County Court before the original Judgment was reaffirmed and upheld in April 2020.

Despite suggesting that they were going to launch a further Appeal, the Police then opened settlement negotiations and we subsequently reached agreement for a final settlement for Robert in the sum of £100,000 damages.

Whilst this money is undoubtedly welcome, Robert is still left with a bitter taste in his mouth when he reflects on the way the Police conducted this case – their refusal to apologise and their determination to fight it tooth and nail. The Police disregard for Robert, and hostility towards him, did not stop when the baton blows stopped falling.

This case began as a result of the destructive and aggressive actions of one Officer, who was apparently prepared to risk breaking a man’s leg rather than to accept a momentary challenge to his authority from a non-compliant, but also a non-aggressive individual who was suspected only of low level, non-violent crime. 

However in the years that have gone by since the incident it is the arrogant and unrepentant mentality of the Police Force as a whole which has wasted vast amounts of time and money.

In my opinion, the video footage was from day one extremely stark and clear evidence of excessive Police brutality.  It is a great shame that the Police could not, apparently, see this as well, for if they had, they could have moved quickly in a collaborative way to admit liability and offer an early settlement along with treatment and rehabilitation for Robert, thereby increasing not only the trust of Robert and other members of the public in the Police, but also saving themselves, Robert and the Court Service considerable amounts of time and resources.

I now leave you with the video evidence, to judge that question for yourselves.

ALL NAMES CHANGED.

The Phantom Knife? Violence and Lies by Prison Officers

Back in April, the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published a report following a recent ad hoc visit to the UK.

This targeted follow-up visit focused on the persistently high levels of violence in the local male adult Prisons and Juvenile Detention Centres. The visit  followed up on serious concerns raised in the CPT’s report following the April 2016 visit to the UK.

A delegation for the Committee inspected three local male prisons (Liverpool, Wormwood Scrubs and Doncaster) and three Youth Detention Centres, (Feltham,  Cookham Wood and Rainsbrook) between 13th and 23rd May 2019.

Reference to violence in prisons is often to fights between prisoners or assaults by prisoners on prison staff.  The CPT commented on both issues and recommended that the UK authorities ensure that there be far greater investment in preventing violence “to bring prisons back under effective control of the staff, in order to halt and reverse the high levels of violence”.

But the CPT also commented on the prevalence of unprovoked and unjustified infliction of violence perpetrated on prisoners by staff.

The CPT recognised that it may, on occasion, be necessary for prison staff to use force to control violent and/or recalcitrant prisoners whose behaviour may otherwise constitute a danger to themselves and others.  Nonetheless, the force used in such circumstances must be lawful, proportionate and no more than strictly necessary.

During their visit however, the delegation encountered a number of examples of unprovoked and unjustified infliction of violence on prisoners by staff and concluded that events of this nature were unlikely to be isolated incidents.

To compound matters, the delegation also found that when challenged, those staff members accused of assault often produced detailed accounts of their behaviour in ‘Use of Force’ forms in which they claimed that they had been obliged to use protective strikes, but all too often CCTV or Body Worn Camera footage was not available to allow independent verification of those accounts.

The CPT recommended that the UK authorities not only undertake a proper investigation into all allegations of ill-treatment but also institute measures to ensure that all Prison Officers understand that ill-treatment is unacceptable and unprofessional and that it would result in severe disciplinary sanctions and/or criminal prosecution.

My own experience bears out the concerns of the CPT that unlawful use of force on prisoners by prison staff is a real and present danger in prisons throughout England and Wales.

Indeed, I have just settled a claim for James O’Brien.  Back in August 2016, James was serving time at HMP Swaleside.

He secured a key worker position in the kitchens and was a valued member of the prison kitchen inmate staff.

On the morning of 24 November 2016, James was assaulted by a senior officer.  As is often the case, there was a dispute between James’ account and the prison officer’s version of events.  I will set out below what was alleged (and admitted) by the Prison authorities in their response to the claim I brought on James’s behalf.

That morning, it was alleged that James had been banging on the inside of his cell door and had been verbally abusive to an Officer when he was asked to stop.  At this point, James was not to be unlocked because other prisoners were on the landing being fed.  As a result of James’ behaviour, Supervising Officer (“SO”) McDermott directed that 3 Officers should serve James his lunch at his cell door, instead of at the servery with other prisoners.  Those 3 Officers went to James’ cell with James’ lunch.  The cell door was opened.  James stepped forward and took his food, and then placed his foot in the door to prevent it from being closed.  He demanded an explanation for why he was being served his meal in his cell.  The Officers attempted to explain that it was due to his abusive behaviour earlier that day.  James refused to move his foot out of the door and shot the bolt of the door to prevent it being closed.

SO McDermott was contacted to attend and as requested did so and spoke with James, but James continued to protest that he was being treated unfairly. SO McDermott asked for 2 more Officers to attend to assist.  It was alleged that James became increasingly aggressive and, holding his left hand behind his back, stated “The first Officer to lay hands on me will get slashed” or words to that effect.  The Officers present alleged that they genuinely and reasonably believed at this point that James had a sharp or bladed weapon that he was concealing behind his back and intended to use it on them.

The Prison Officers entered the cell, restrained James and forced him onto his bed.  With James under control, the Officers tried to encourage him to calm him down so the restraint could be ended.  Even on the account of the Officers, it was accepted that James was calming down at that point, and it was not disputed that they had him completely under control.

However, SO McDermott then entered the cell and without warning, and whilst James was being held down on the bed by his fellow Officers, punched James hard in the face, in the region of his left eye.  James started to shout “Who banged me?  I’ve been banged” and began to resist the restraint actively again.  Nonetheless, the Officers were able to progressively release the restraint and left the cell. 

In the Officers’ accounts, it was alleged that at this point James produced a ‘bladed article’ from his trousers and moved towards the cell door.

However, this account – that James had a weapon in his possession- was significantly undermined by the fact that James was ‘unlocked’ after lunchtime and allowed to attend to his usual duties in the kitchen, with no suggestion that his cell was searched for a weapon, that any weapon was confiscated from James or that he was charged with possession of such a weapon.

I consider those undisputed facts to be persuasive evidence of “embellishment” of the Officers’ accounts of what had happened, to attempt to justify the gratuitous force used against James; certainly James himself denied ever having been in possession a of weapon during this incident.  

James was subsequently  referred to healthcare, who advised him to collect an ice pack from the treatment room and to contact healthcare with any other concerns.  They did not prescribe any medication but noted bruising and swelling to his left eye, albeit with no visual impairment

As a result of James’ allegation, an investigation was conducted by the Prison Governor, which involved interviewing the staff involved.  The Governor found that there was a case to answer against SO McDermott for punching James.  He was due to attend a disciplinary hearing on 15-17 March 2017, but resigned prior to that hearing taking place.

Whilst continuing to maintain the allegation that James had a knife, in response to the claim the Prison admitted that SO McDermott had unlawfully assaulted James when he punched him in the face.

Fortunately James’ injuries were relatively minor, a black eye for a few weeks, the shock and upset of the incident.  Notwithstanding this, I settled James’ claim for £7,500 plus costs.  The settlement reflected not just the physical injuries and shock and upset but also an allowance for aggravated and exemplary damages, i.e. additional damages claimed to reflect that SO McDermott was a senior Prison Officer, that his conduct was arbitrary, intimidating and oppressive and was an affront to the Rule of Law and to civilised values in a democratic society.

My personal view is that the Prison authorities were keen to settle James’s claim as quickly and fully as possible, in light of the likelihood of the Court concluding that not only had SO McDermott assaulted James, but that he and other Officers had deliberately lied about the ‘bladed article’ so as to attempt to justify what had been done to my client.

Furthermore, and as is typically the case, the Prison staff had not taken the simple steps of operating body cameras during the incident, which would so easily have certified whether their allegations against James were true or not.  A cynical, but perhaps all too accurate view of this is that staff habitually avoid filming such encounters so as to leave themselves ‘room for manoeuvre’ when it comes to justifying their actions.

Unnecessary violence by Prison Officers on prisoners is reprehensible, especially in circumstances such as this where James was under control and calming down, but far more invidious is the suspected culture amongst Prison staff of telling lies to cover up such unlawful violence by their colleagues. Whilst that kind of toxic environment persists inside the Prison system, the CPT will have their work cut out to encourage real change.

ALL NAMES CHANGED

Armed raid and arrest of 12 year old for possession of toy gun

A male in the property was arrested on suspicion of possession of a firearm and taken into a police van outside the house. The other residents were escorted out of the property while a search was conducted…”

Such is the dispassionate, almost robotic, tone of a Metropolitan Police statement made in response to a shocking incident last Friday night involving my client Alice Mina Agyepong and her young family; but sometimes ‘dispassionate’ can shade into ‘disingenuous’, for what that carefully crafted statement fails to make clear is that the “male” who was arrested on suspicion of possession of a firearm, was in fact Mina’s 12 year old son Kai…who had been doing nothing more than playing with his toy gun in the living room of his house. The disingenuous and defensive nature of the Police statement is further reflected in the choice of words used to later describe Kai – “the youth” and (inaccurately) “the teenager” – words which obviously tend to convey an impression that Kai was far older than 12, perhaps a young adult rather than, as he is, a child.

It seems that a passerby telephoned the Police after peering in through the living room of the family’s home and seeing Kai playing (alone) with his plastic toy gun. The rest of the family (Mina and her two daughters) were then awoken in terrifying circumstances as armed Police stormed the house, training their – very real – firearms on Mina and her children and forcing them to march outside with their hands up, where they were detained in full view of the neighbourhood whilst Mina’s house was, in her words, “ransacked” by the Police, who were doubtless hoping to find something – anything ? – that would justify such a gross and disproportionate invasion of the family’s home.

During this time, Kai, a Year 7 pupil at Maria Fidelis Catholic School was kept handcuffed in a Police vehicle before being eventually “de-arrested” when the Police established that they had terrorized the family for no purpose other than to arrest a child for playing with a toy in his own home…

Major questions will need to be answered by the Metropolitan Police as to how this everyday event escalated into an armed raid, during which deadly force could so easily and tragically have been unleashed upon Mina and her children. Even as it stands, with the physical force being ‘confined’ to the handcuffing of a 12 year old boy, the emotional and psychological impact cannot be underestimated. For a family to have the safety and sanctity of their home violated in such a way, is literally the stuff of nightmares.

And not least amongst the questions to be answered will be to what degree the Police response to the report they received was escalated because of the colour of Kai’s skin. Given the knowledge we already have in relation to disproportionate uses of force and Police powers generally upon black people, this is a very real concern.

I have accepted instructions to act on behalf of Mina and Kai to assist with their Police complaint, and, in due course, to commence a claim for compensation against the Police. Mina also feels, quite rightly, that people need to know about this incident so that the full spotlight of  public scrutiny can be shone upon the Police. As a result, she has provided interviews to ITV, BBC and Channel 4 news.

As I have said before, media attention upon cases of suspected Police misconduct and wrongdoing is a crucial part of the power which civil society has to balance out the power of the Police, and to avert future cases of error and abuse. I am happy to be playing my part in this case, but so too is every responsible citizen who learns of the case and reflects upon it, and asks the questions which hold the Police to account.

The Wrong Internet Address: Police Data Errors and Arrests

In the modern world, the police are frequently required to investigate “internet crime”, such as Social Media hacking or the online sexual exploitation of children.

With such cases, a Force Communications Data Investigator will be appointed to identify the offender from the Internet Protocol  (IP) number or address used at the time of the offence.

The IP address is a unique number allocated by a service provider, for example Sky or BT, when a customer connects to the internet.  Each service provider is allocated a range of numbers which in turn it then allocates to its customers at the commencement of their internet use.  This number is generally returned to the service provider at the conclusion of the customer’s internet use and may be re-allocated to the next customer as and when they log on to the internet.

So, when investigating a Facebook hack, for example, the Investigator will request details of all IP addresses which logged into the individual’s Facebook account between set times on a set date.  From the identified IP address, it is then possible to trace a physical address where the IP address was allocated at the relevant time.

The investigation of IP addresses, though seemingly a ‘straightforward’ matter of computer data retrieval, can easily go astray due to human error such as;

·        the submission by an Investigating Officer of an incorrect communications address; for example when s/he has taken incorrect details from a victim or witness;

·        the Investigating Officer or Data Investigator inaccurately  transposing a communications address; a single misplaced digit can lead to the wrong person being identified;

·        the misinterpretation of data by Data Investigators; IP addresses are dynamic and can appear in different date formats and time zones. Time conversion of IP activity from international time zones to GMT or BST creates lots of room for error.

The potential impact of errors on the rights of individuals can be grave, as a case that I recently concluded shows;

One morning in May 2015, Edna Morris was home alone when 2 Police Officers attended.  At the time, she was 56 years old. She was registered disabled and had a history of both physical and mental health conditions, having experienced a number of very traumatic events in her life, including the suicides of two of her brothers within a week of each other.  She lived with her friend and carer, Chris Grant, and was a person of entirely good character, never having had any adverse interactions with the Police before.

Edna invited the officers in.  She was told that she was under arrest for downloading and distributing indecent images of children.  Edna was shocked.  She felt sick and began to panic.

The Officers advised that they had a Warrant and began to search the premises.  The Officers seized her laptop and phone and then transported Edna to the Police Station.

Edna very understandably felt distressed and humiliated, particularly because other people in the area of the custody desk overheard why she had been arrested.  To be involved in the sexual exploitation of children is one of the most ghastly crimes of which a person can be accused. Edna was searched and her property removed.  Her fingerprints, DNA and photograph were then taken and she was escorted to a cell.

Meantime, the Officers contacted Mr Grant and asked that he immediately attend the Police Station.  Chris drove to the Police Station, where he too was arrested on suspicion of possession and supply of indecent images of children.

Mr Grant was similarly processed and both he and Edna were then interviewed, albeit separately.

Just after lunchtime, both Edna and Chris were released on bail with conditions to reside at their home address and to have no unsupervised contact with any child under the age of 16. This was particularly devastating to Edna as she had many young nephews and nieces to whom she was close, and who she feared she might never see again because of these false accusations against her.

Edna and Chris met up outside the station and Chris drove Edna home.  Edna decided that when Chris went to bed that night she would take an overdose of tablets to end her life; her whole world seemed to be collapsing in the face of these sickening accusations. She decided to ‘end it all’ and wrote a farewell letter to her nephews and nieces.

Meanwhile, during the course of the afternoon, one of the arresting officers had received an email from the National Crime Agency that read;

“there has been an error in applying for communications data around the upload IP address.

The time reported is Monday 24th November 2014 at 10:10.39 – 0500 which was converted, in error, to 05:10:39 UTC.

The subscriber results which have today been actioned relate to an innocent party and not the suspect in this case.

I apologise for this error and the inconvenience it has caused.”

Both Edna and Chris were contacted and informed that there had been a mistake and that no further action would be taken against them. Fortunately, this happened during the course of the same day. Had the error not been discovered by the Police until the following day, it might have been too late for Edna, given her suicidal intentions; tragedy was narrowly avoided.

Despite the relief which they felt at this vindication of their innocence, both Edna and Chris understandably suffered significant psychological trauma by reason of the incident, as well as loss of liberty and the indignity of their home being searched and possessions seized.

As regards psychological injury, both Edna and Chris complained of significant emotional distress, sleep disturbance, impaired concentration and anxiety.

I am delighted to report that after a lengthy legal battle involving the National Crime Agency and the Police, both claims settled with Chris recovering £17,500 and Edna recovering £25,000.

In March this year, Prime Minister Boris Johnson commended to Parliament the latest report of the Investigatory Powers Commissioner which covered the year 2018.  Overall he advised, the report demonstrated “that the security and intelligence agencies, law enforcement agencies and other relevant public authorities show extremely high levels of operational competence combined with respect for the law”.

What Prime Minister Johnson did not highlight from the report were the wrongful arrests of four completely innocent people who were accused of offences such as sexualised contact with children online and sharing indecent images of children, nor the cases of several other people whose homes were searched and IT equipment seized for similar reasons. The report made clear that all those wrongfully accused had suffered as a result of Police errors when reviewing relevant Communication Data, just as with Edna and Chris.

After the dust had settled, Edna wrote to the Police seeking compensation. After a lengthy period of investigation, the Police denied any liability on their part and suggested that Edna take the matter up with the National Crime Agency, who had supplied the incorrect data.  Edna felt very disheartened and that there would be no accountability for the errors that had led to her arrest; she struggled to find a solicitor interested in taking on her case. She felt that doors were being shut in her face.

Many months later, Edna happened to be watching a TV programme in which I was interviewed as a specialist in Police Misconduct claims.  She made contact and asked if I could help in her quest for justice. 

I brought a claim on behalf of both her and Chris against the Police and the National Crime Agency for Breach of Data Protection Act 1998, Misuse of Private Information, Trespass to Land and Goods, False Imprisonment and Assault and Battery.

My clients welcomed the compensation that was ultimately awarded, but financial recompense only goes so far.  Edna and Chris have to live with the consequences of what happened to them. In reality, there is no amount of money that can expunge the horrible memory of the hours they spent under accusation of child sexual exploitation.

In a world where more and more crimes are going to be committed and investigated online, it is absolutely essential that rigorous training and practices are enforced to ensure that errors do not occur at the human end of the ‘data chain’ leading to catastrophic impacts on the lives of innocent people such as Edna and Chris.

Handcuffed for No Reason: A Dangerous Police Habit

Over recent weeks, the public have been witness, thanks to the close attention being paid by the media to cases involving unlawful stop/ searches upon black people, to numerous incidents of what I see on a very regular basis in my daily work: the ‘automatic’, almost ‘default’ handcuffing of suspects by Police Officers.

These include such incidents as  –

·         Ryan Colaco, on his way home from a Channel 4 interview about Police racism, having his car window smashed by Officers of the Met Police, who then handcuffed him whilst pursuing a phantom smell of cannabis.

·         Athlete Bianca Williams, apologised to by the Met after Officers forced her and her partner, fellow international athlete Ricardo dos Santos out of their car in Maida Vale, handcuffing both of them in front of their baby son.

Whilst acknowledging that handcuffing people should not be a ‘default’ action, Met Police Commissioner Cressida Dick, addressing the Home Affairs select committee this week, asserted “I don’t believe I do run a police service in which handcuffing is routine.”

With respect, I beg to differ. The robotic, thoughtless handcuffing of people following arrest/ during searches, is an endemic problem amongst the Police nationwide, which really deserves more serious attention than it is getting. Statistics show that during 2018- 19 Officers in England and Wales used handcuffs over 300,000 times (with black people, for the record, some 6 times more likely than white people to be handcuffed).

Many Officers seem to think that the manacling of a person’s hands is almost a formal requisite of every arrest/ detention, irrespective of how compliant, co- operative and non- threatening their subject is. Handcuffing should in fact be the exception, not the rule; it is a use of force, an act of violence, very likely to cause at least transitory pain to a person, whilst at the worse extreme it can result in fractures, nerve damage and/or permanent scaring to the arm. Over and above the physical impact, there is also the psychological damage caused by the shock and humiliation of having your hands chained together, often in a very public place. It is a degrading act to be performed upon anyone and seems wholly at odds with that principle of ‘innocent until proven guilty’ upon which our justice system is founded; to be placed in handcuffs is at once a casual assertion by the Police of their total power over you, and at the same time an emotionally outrageous branding/ marking of you as a criminal – or at least, a suspected criminal.

I fully accept that there are plenty of occasions when the Police are fully justified in using handcuffs to restrain a violent individual, but I have acted for countless people who in no way meet that definition, and the current media spotlight is further highlighting the extent of this problem.

Early this year my client Deborah Brown was awarded damages at Northampton County Court having been handcuffed by Northamptonshire Police within minutes of a fall in which she had sustained a serious fracture to her wrist. Deborah is a middle aged woman of good character, a local businesswoman and indeed Town Councillor who posed no threat of violence or resistance to the Police. The placing of handcuffs on her broken wrist was entirely gratuitous and unnecessary; another example of lazy and thoughtless Policing, in my opinion.

Another example of the prevalence of this Policing problem is the case of my client David Turner, a young man suffering from both ADHD and autism, who was only 13 years old when he was stopped by Police whilst cycling home from the barbers, pushed up against a fence and handcuffed. The Police ‘justification’ of their actions was a drugs search (which was negative) but I do not believe anything can truly justify the placing of a 13 year old child in handcuffs in these circumstances. It demonstrates the mentality amongst Police Officers which Cressida Dick is at once acknowledging and then seeking to refute: the habitual use of handcuffs as if they have become second nature to the Police, without thought for the correct operation of the law. The old driving mantra ‘mirror, signal, manoeuvre’  seems to have a sinister echo in the minds of many Police Officers as:  ‘stop, handcuff, search’, even where the subject of that search is a child.  

And I have already blogged about the case of my client Tariq Stanley, whose claim against the Metropolitan Police is ongoing, and a significant feature of which is the hurtful, humiliating and utterly unjustified decision to handcuff a polite, non- resistant and co- operative person.

Whilst I welcome the suggestion that the Met will now launch a review of their Officers ‘handcuffing practices’, I am cautious about what will be achieved given the fact that Cressida Dick’s pious words seemed almost immediately to be undermined by the defensive language she adopted : “If there are lessons to be learned from this we will learn them” (read that, I suggest, with the emphasis on ‘if’ from the Met’s point of view) and her almost immediate denial, quoted above, that there was any real problem.

I would urge all Forces nationwide to conduct an urgent review of such matters, and to invite testimony upon these issues from members of the public and police claims lawyers such as myself to counteract the inherent bias and defensive attitudes of the ‘Police investigating the Police’.

In the meantime, I will end by echoing my recent thoughts regarding the social good that is done by the increasing prevalence of individual citizen’s mobile phone footage cataloguing and exposing such misdemeanours by the Police. Long may appropriate ‘surveillance of the State’ continue. Widespread Police accountability and reform will only happen under the continued and committed focus of the public gaze.

(Please note that the names of my clients identified in this blog as Deborah and David have been changed to preserve their anonymity).

Kicking Down Doors: The Police Mentality That Leads To Claims

Q: Which self- proclaimed “gang” in London loves nothing more than “kicking down doors” ?

A: The Metropolitan Police

Sadly, whilst this may seem like a joke, it is not. Those words used to described the Met and its motivations came, in the first instance from Chief Inspector Ian Kibblewhite, and in the second from one of the MPS’s official twitter accounts yesterday.

Whilst the MPS moved quickly to delete the tweet, which showed an image of Officers smashing in the front door of a house beneath the boastful caption “Kicking down doors is probably one of our favourite things”, and offered a half- hearted apology (describing the tweet in rather lukewarm terms as “inappropriate”) the very fact that an Officer with public relations responsibilities thought that this was in any way an acceptable message to post demonstrates the prevalence of a dangerous attitude within the Police towards excessive use of force and other punitive powers. It would not be incorrect to describe the tweet as “gleeful” and presumably the Officer who posted it felt it would welcomed by his colleagues and superiors, indicating the extent of the problem.

Working as a specialist in the field of claims against the Police, I see many, many examples of this bad attitude in action, and it is certainly not confined to the Met, but spread widely throughout the UK Police as an institution. Too many Police Officers, it seems, are too quick to use force – whether with batons, battering rams, handcuffs, gas or the other weapons in their arsenal – and it is disturbing but not unrealistic to think that in many cases this may be because the Officers ‘enjoy’ it or are looking for an excuse to get their adrenalin going and assert their power.

Certainly that would be the message conveyed by that tweet, don’t you think ?

I also note that the Officer responsible for this offensive tweet seems to have been let off extremely lightly, his only ‘punishment’ being to be given “words of advice” – an artificial sounding euphemism which the Police often deploy in response to complaints; it seems almost engineered to say to the complainant that ‘here is an apology through gritted teeth’ whilst at the same time saying to the Officer ‘don’t worry we’ve got your back’. I often wonder if the ‘advice’ given is how best to ‘get away’ with this next time…

I think it is also essential for us to remember, when we look at the picture in that tweet, that there is someone on the other side of that door. The Officer from Homerton Police seems to want to  imagine that every time he and his colleagues ‘kick in the door’ some Sweeney-esque villains are waiting to get ‘nicked’ on the other side of it; but all too often, it can be an entirely innocent family who is cowering in terror as the Police with para-military tactics burst into their home.

Take for example, the case of my client Christine, who came to the UK from the Democratic Republic of Congo in 2016, where, in her childhood she had suffered a very traumatic experience when men in uniforms had broken into her home, robbing her family and attempting to rape her older sister.

Christine thought she was safe from such experiences in the UK but early on the morning of 7 March 2018 she was awoken by  the noise of her front door being broken in. Christine was terrified; she was alone in the house with her 5 month old son, her husband having left early for work. Wearing only her nightdress, and suffering flashbacks to the home invasion of her youth, Christine was confronted by numerous Police Officers who swarmed into her house after breaking open the door and started searching all the rooms.

This was all a colossal mistake; after several minutes one of the Officers suddenly announced that they had the wrong address. It wasn’t Christine or her husband they were looking for at all. The scariness of the situation for Christine was compounded by the fact that her first language is French and she was not a fluent English speaker. Furthermore, when the Officers left Christine – alone in a home without a front door anymore – they gave her an incomplete warrant that was neither signed nor dated by a Magistrate.

Although the whole event had lasted only a matter of minutes until the Police realised their error, the effects upon Christine and her family were much more long lasting. For months afterwards she suffered from sleep disturbance and a lack of appetite, and found it impossible to relax at home with her child when her husband was at work, for fear that the Police would repeat their ‘mistake’.

I sued the Police on behalf of Christine and her husband and recovered £7,150 damages for this Police trespass into their home.

This is, of course, only one example amongst many clients I have represented  who have been on the end of a bungled Police search, involving either improper/ excessive force, the Police coming to ‘the wrong address’ or not following correct procedure particularly in regards to the production of search warrants. The safety and sanctity of Christine’s family home had been shattered; perhaps preserving that should be higher on the list of Police Officer’s “favourite things”, rather than the ‘thrill’ of smashing and crashing through someone’s front door.

“Left in the Dark”: The Victims of Criminal Police Misconduct

It’s easy to forget how bewildering the legal system can be and this is certainly the case for the victims of serious police misconduct who in my experience are often left confused, frustrated and in the dark as to what lies ahead.

Given that, I thought I’d write about John’s experience which may help others who find themselves in a similar situation.

In June 2019, John was violently assaulted by a police officer, then arrested on false charges of assaulting that officer. So began the criminal investigation of John’s own conduct on the night in question. By reason of his injuries, he was taken  – in handcuffs –  to hospital for treatment. Thereafter, he was transported to a local police station where he was processed and placed in a cell. Several hours later, he was interviewed under caution. John denied assaulting the officer, stating that he done nothing wrong and that he was the victim. Some Body Worn Camera footage was shown to him which on its face supported John’s account and strongly indicated that the arresting officer had given an untruthful account as to what had happened.

A short time later, John was released from custody “under investigation“. Battered, bruised and bewildered, John returned home.

A few weeks later, John was advised that a decision had been made by the Police to take no further action against him.

By this time, the Force Professional Standards Department had commenced an internal investigation into John’s complaint, with a view to taking criminal and/or disciplinary proceedings against the officers concerned.

John fully cooperated with the investigation, providing a detailed witness statement and allowing access to his hospital records.

Following review by the Crown Prosecution Service, five months after the incident, one Police officer was charged with assaulting John, and that same officer and his three colleagues were also charged with conspiracy to pervert the course of justice by falsifying and interfering with evidence. All four officers have pleaded not guilty and now face a trial scheduled to take place later this year.

The allegation of assault is straight forward; John gives a candid account of how the officer punched him in the ribs, forced him to the ground & then landed further blows to his face.  The allegation of perverting the course of justice less so. It is believed that the officers attempted to delete incriminating body worn camera footage, but full details of what the officers did after the arrest is known only to the Force and the CPS at this time.

John is pleased that appropriate action is being taken. If one or more of the officers are found guilty, they will be punished accordingly. That is the purpose of the criminal process. But that process does not provide redress to the victim; John was injured, wrongfully arrested and detained and deserves to be compensated. He will seek this restitution by bringing a private civil action against the Police, but such a claim must wait until the associated criminal case concludes. Firstly, there is a real risk of serious prejudice to the criminal process if the civil claim were allowed to run in tandem, and secondly, a conviction in the criminal proceedings, based as it would be on the higher standard of proof, should mean that a civil case based on the same facts would not easily be contested by the Police.

Assuming the case against the officers proceeds to trial, John will not be able to bring his own action against the Police until nearly a year and a half after the incident. That delay is frustrating in itself, but this is compounded by the lack of information given by the prosecuting authorities as to the extent of the case against the officers and the likely roadmap to trial, a situation all too common for victims of abuse by agents of the state. Sadly, the “Victims Charter” in these cases is too easily forgotten or not considered relevant.

For the moment then, there is a limit to what I can do at present. I have been able to keep John updated as regards the prosecution and have gathered evidence in preparation for the civil claim where I can. I have sent a young apprentice to court, ensuring a watching brief at each hearing to report progress and in due course the trial, and I’ve arranged for John to be examined by a medical expert who will prepare a report detailing the full extent of John’s injuries as well as exploring the nature and extent of other losses he has suffered.

Fortunately John is a patient man and I am confident that in due course he will see justice both in the criminal case brought by the State against the officers and the civil case for compensation.

 

Police Under Pressure: Wrongful Arrests in the Media Spotlight

Airports have been empty spaces of late, with international travel effectively ‘shut down’ by the Covid- 19 crisis, but news reports at the weekend reminded us of the time Gatwick Airport suffered a shut down of its own at one of the busiest times of  the year, around Christmas 2018, when sightings of ‘drones’ led to the airport having to repeatedly close, causing disruption to hundreds of thousands of passengers.

Paul and Elaine Gait were swept up in the chaos of this incident when armed Officers from Sussex Police raided their home and took them into custody. They then spent 36 hours in distress and anxiety, falsely accused of being involved in the drone attacks despite the fact they did not own any drones and had been at work when the disruption had occurred.

They have now recovered damages of £55,000 and received a formal apology from the Sussex Assistant Chief Constable, David Miller who said he was “really sorry” for the unpleasantness of their arrest and detention.

The drone incidents were extremely high- profile media events, gathering a great deal of attention, given the massive disruption they were causing between 21 – 24 December, when many flights were scheduled for the imminent ‘holiday season’. There is no doubt that Sussex Police were under great pressure to ‘get a result’ and this is probably what led to the premature, and ultimately clearly incorrect, decision to arrest the Gaits.

This is sadly not the only occasion, however, when that particular Force and others have acted perhaps more out of consideration of ‘the Headlines’ rather than a properly measured assessment of the evidence. The somewhat understandable desire to ‘get a result’ because of media attention should not excuse the Police in cutting corners, if the result is the false imprisonment of innocent parties.

My client Nigel was arrested at Brighton train station on 2 June 2019 by Officers of Sussex Police. Whilst Nigel’s arrest was not quite as shocking as the armed raid on Mr and Mrs Gaits home, it was still a very traumatic experience. The Officers were in ‘plain clothes’ and grabbed Nigel’s arms without warning, only later telling him that they were Police; at first Nigel feared that he was being mugged.

What made the experience even more humiliating than it would have been anyway – at a public train station – was the fact that it happened in front of several of Nigel’s former work colleagues whom he had been in the process of meeting at the station.

The Officers searched Nigel, stating he was under arrest for ‘criminal damage’ and repeatedly referring to him by the name of “Steve”. Just as the Gaits clearly had an iron- cast ‘alibi’ to the wrongful accusations brought against them, Nigel was swift to offer the Officers evidence that he was not the man ‘Steve’ whom they apparently thought he was. He produced his driving licence and explained that his former colleagues could vouch him – but he was ignored by the Officers.

It became clear that the Officers were acting on the basis of a photocopied CCTV still of the suspect (whom they had evidently already identified by name), but they refused to show this to Nigel.

Nigel was then, totally unnecessarily, handcuffed (he was putting up no physical resistance at all) and marched to a Police vehicle, during which time the Officers informed Nigel that he was suspected of being responsible for a number of cat mutilations in the local area. This was a reference to the case of the “Brighton Cat Killer” – who had stabbed and wounded or killed 16 cats since October 2018. As I referred to above, the local police were clearly feeling under pressure to apprehend the culprit behind these very distressing attacks.

We now know that a man named Steve Bouquet was in fact the real target of the Police, as they arrested him later the same day, and he has subsequently been charged with these offences.

Nigel, who is in fact an animal lover, was disgusted to be accused of this horrible crime and strongly denied any involvement.

Conveyed to a police station, Nigel had his fingerprints, DNA and photograph taken and was placed in a cell in a state of shock, anger and bewilderment. He had never before been arrested and found himself undergoing a totally shocking, alien experience.

Approximately 5 minutes into his incarceration in the cell, Nigel was visited by an Officer who blithely informed him that this was a case of ‘mistaken identity’ and he was to be immediately released.

Although he was promptly released, the end of his arrest was far from being the end of the impact of this incident upon Nigel. He had physical injuries to his wrists which cleared up relatively quickly, but psychological scars which did not. Nigel felt as though his world had been turned upside down, felt threatened and vulnerable, and experienced thoughts of suicide. He now has to attend a support group to cope with the ongoing effects of this gross misjudgment by the Police.

Handcuffs imageIn response to the claim which I have now brought on behalf of Nigel, Sussex Police initially denied any wrongdoing by their Officers, not withstanding that they have accepted that my client was “an entirely innocent party”. Undeterred, on threat of Court proceedings, the Police have now made an offer of settlement. The offer is not currently acceptable to my client and the litigation will continue until such time as suitable terms are put forwards by the Police, which I would hope will include an apology in the same terms as offered to Mr and Mrs Gaits.

In neither the case of the Gaits, nor that of Nigel, does the distressing/ disruptive nature of the crime committed, nor the fact that these were crimes garnering considerable publicity, justify slipshod Policing or the unlawful arrest of wholly innocent people. Although Sussex Police are currently adopting an official stance that Nigel was, in effect, ‘collateral damage’ in their pursuit of the ‘cat killer’ (they have even stated that he should be pleased with them for catching the “real suspect”) neither Nigel nor anybody else should have to tolerate or accept being subject to false imprisonment because the Police are under pressure to get an arrest ahead of a correct and careful consideration of the evidence, and this will be reflected in the eventual damages award which I will secure for him.

Black Lives and Police Racism

A black man abducted from outside his home, taken away without his family knowing what was happening to him; he was beaten, chained, stripped naked and deprived of his liberty.

Am I talking about an event that happened 200 years ago? No, sadly, I am summarising the events that happened to my client Tariq Stanley in April of this year, when Police officers ‘picked upon him’ as he was minding his own business in his car outside his home address. You can read the shocking details of his case in a Guardian article here.

Scenes of conflict and anxiety, anger and protest continue to play across our TV screens, or social media feeds, from both sides of the Atlantic this week, following the death of a black man, George Floyd at the hands of Police Officers in Minneapolis.

We must be thankful, of course, that the general level of violence that occurs between Police officers and citizens of any colour in the UK is far less than in America (statistics show that the rate of Police killings of civilians is 66 times greater in the US than the UK). However, it is undisputable that the same issues of Police brutality, Police protectionism towards their officers and racial bias – compounded by a reluctance to root out ‘bad apples’, bad practices and toxic cultures amongst the Force as a whole – also exist in this country.

I have taken on the Police on behalf of individuals from all racial and cultural backgrounds; Police abuse of power and brutality can happen to anyone, but experience has shown me that there is an undeniable culture of bias amongst the Police towards black/ ethnic minority people in particular, who Officers as a whole seem predisposed to consider more likely to be guilty of criminality, and if not quite ‘second class citizens’ then not exactly worthy of the same respect as white people, and more likely to pose a threat of violence hence justifying the ‘pre-emptive strike’ and other over-the-top uses of forces.

This bias then intersects with the wider problem of bad attitudes amongst Police officers to any perceived challenge to their authority, and the kind of lazy thinking which seems to suggest to many Officers that an arrest isn’t real unless you put handcuffs on the person (no matter how unnecessary they are), to produce a disproportionally high number of Black victims of Police misconduct.

This type of behaviour is self- reinforcing, as if Police treat black people like this, they are likely to engender the type of psychological damage and resentment towards the Police which then feeds into the Police seeing the black community as something ‘other’, to be mistrusted, and potentially a source of threat and hostility towards them.

The statistics are stark –

  • During 2017 during a 3 month trial by the Police of ‘spit- hoods’ 23% of males on which the device was used were Black and 15% Asian, whilst 72% of the women on whom the hoods were used were Black.
  • In 2018/19 Black people w
    ere 9 times more likely to be stopped and searched than White people;
  • During the same period, 26% of all uses of force by Police Officers were against Black, Asian or people of another non-White ethnic appearance;
  • During the current Covid crisis, Black people, who make up 12% of the population of London, were much more likely than White people to be fined or event arrested for alleged ‘Lockdown’ breaches – they made up 26% of those fined and 31 % of the arrests.
  • And as I have also identified in a recent blog post, Black people are the victims of Police taser use in a grossly disproportionate way, being almost eight times more likely to have a taser pulled on them and/or fired by Police.

However shocking those statistics are, I think it is the real details of real people’s lives which hit home the most effectively in trying to get across the message of Police brutality and racial bias, and so I would like to outline the facts of just two of the many cases I have handled in recent years which highlight these issues.

David’s Story

My client David, a young black man, was travelling to Dagenham in his car one Sunday morning, accompanied by his cousin and friend, who were also black males.

David was doing nothing untoward and was driving within the speed limit, but made ‘eye contact’ with a passing car containing Metropolitan Police Officers. For no reason it seems to me other than the colour of the skin of the occupants of David’s car, the Police decided to activate their sirens and pull David’s vehicle over.

David, who was registered disabled, and suffered from avascular necrosis, which is a degenerative condition of the hips, got out of his vehicle and politely enquired as to how he could help the Officers.

The Officer he spoke to seemed to have no specific reason he could give to David as to the stop other than an assertion that he was carrying out a ‘routine check’.

David co- operated with the Officer’s request for his personal details and thought that he would soon be on his way. David waited on the pavement minding his own business whilst the Officers apparently ran a check on his details and spoke to his passengers (again, their justification for asking the three friends for their details was entirely unspecified/ unexplained).

Then, without any warning at all – and this fact was not even disputed by the Officer himself – one of the Police Officers seized David from behind. David was shocked, did not know who was attacking him and instinctively reacted by pushing away the person who had grabbed him  – only to realise, to his further shock, that it was one of the Officers.

As David demanded to know what was going on the Officer attempted to handcuff him – without apparently thinking that David deserved any explanation whatsoever.

As David struggled in an entirely justifiable manner to stop the Officer from unlawfully handcuffing him, the second Officer joined in, performed a ‘leg sweep’ on David, and took him to the ground.

The two Officers now combined to handcuff David as he lay chest- down on the ground, placing a knee in his back, and holding his head down. David was struggling to breathe and genuinely thought he might die. He called out that he was disabled, but was ignored.

Other Officers now arrived on the scene and took hold of David’s legs, as he continued to lie on the ground, bending them up behind his back, causing excruciating pain to David – all the worse because of his hip disease. The pain was so much, David was close to passing out.

David was then pulled upright and marched to the caged section of a Police van, his pants coming down as the Officers moved him, exposing his buttocks/ genitals in a humiliating manner.

David was then conveyed to custody in a near-by Police station.

It was only there that David was finally informed of the reason for his ‘arrest’. It transpired that there was an outstanding warrant on the Police computer system for a man of the same name as David, although, somewhat ironically, it was noted that the wanted man was white…

To add insult to injury, rather than receiving an apology for this case of mistaken identity and over the top force, David was instead charged with assaulting the two Officers who had in fact assaulted him and was forced to undergo the stress and trauma of a criminal prosecution until he was found not guilty at the Magistrates Court some three months later.

I brought County Court proceedings on behalf of David against the Metropolitan police, and recovered £22,500 damages plus legal costs, though still the Met offered no apology for its Officers behaviour whatsoever.

Image of UK policeSteven’s Story

Steven was another young black person, a man of exemplary character, who was driving home from work one day in South West London. Just as with David he was driving lawfully and within the speed limit in his own motor car, when he was suddenly pulled over by a Police Carrier van with its sirens blaring.

Steven got out of the car to speak to the Officer who approached him, to be met with no explanation but rather an immediate demand that he give his car keys to the Officer. Instead, Steve reasonably requested that the Officer tell him what he was supposed to have done. The Officer suggested, on the basis of no evidence, that Steven might use his keys as a ‘weapon’ and then when Steven calmly continued to respond by asking what he was supposed to have done wrong to justify a Police stop, the Officer grabbed hold of his arm without warning.

Other Officers then joined in and pinned Steven up against the side of his car, before forcing him to the ground, during which Steven banged his head. Steven was then pinned to the ground by a number of Officers and felt humiliated to be treated as if he were some sort of violent criminal in this way.

Just as with David, and sadly George Floyd, Steven was pinned to the ground by overwhelming and unjustified Police force, and had to fight for his breath.

He was trussed up in both handcuffs and leg restraints and informed he was under arrest for allegedly breaching the Public Order Act by ‘swearing’.

Shortly afterwards, Steven heard one of the Officers claiming that the smell of cannabis was in the air – as you will note, this classic Police tactic was also used in Tariq’s case – and feared that the Officers might ‘plant’ something in his car to incriminate him and justify their reckless actions against him. Steven had never in his life used drugs.

Steven was then manhandled into the back of the van and taken to a nearby Police station. He complained that the handcuffs were too tight and were hurting him, but was ignored.

Instead, the Officers now falsely accused Steven of having hit the first Police Officer in the face. He was told he was now also under arrest for this fictitious crime as well.

In the Police station, Steven was subjected to the further indignity of a strip search. He was in a state of considerable shock and distress and was held in custody for a period of almost 19 hours before being released.

As with David, Steven then had to face the further trauma of false charges being pursued against him in the Magistrates Court. The Crown Prosecution Service tried to induce Steven to accept a caution – a criminal record which would have blighted the rest of his life potentially – but believing in the truth and justice of his case, Steven refused and when his case finally came to Trial after some 11 months of stress and anxiety, the CPS suddenly announced that all charges were withdrawn.

Steven now wanted justice against the Officers who had not only brutally assaulted him but who had conspired to have him convicted of criminal offences. He made a formal complaint to the Metropolitan Police, which went as far as a disciplinary hearing the following year; three Officers involved in his case faced charges of Gross Misconduct, but the disciplinary panel found them all not guilty.

Fortunately, that was far from the end of the story, as I was able to bring a County Court claim on behalf of Steven for false imprisonment, assault and battery and malicious prosecution and recovered £46,000 damages for him.

There are inescapable similarities between all of these cases, and I am sure you will agree that the details of these cases bear out the statistics, demonstrating – in black and white – that whilst it may be less of a problem than it was a generation or two ago, British policing is still blighted by the same spectres of racial bias and over the top aggression towards people of a non- White appearance that are now haunting the streets of America.

Can I sue the probation service (or a Community Rehabilitation Company)?

Handcuffs imageAn individual is put on probation either because s/he has been serving a community sentence or because s/he has been released from prison on license or on parole.

The individual is then obliged to engage with the probation service for the entirety of the probation period, during which time they must:

  • attend regular meetings with an offender manager;
  • do  unpaid work;
  • complete an education or training course; and/ or
  • get treatment for addictions like drugs or alcohol.

Should the individual fail to comply with the terms set by probation, they are liable to be “breached” and obliged to return to Court. This might be because the individual did something that the sentence banned them from doing, committing another crime or missing appointments with their offender manager.Alternatively, the individual might be arrested and recalled to prison if they breach their license or parole conditions. The individual will then serve 14 or 28 days depending on the length of their original sentence and upon release will be put back on probation until the end of that sentence.

In 2014, the probation system was transformed with a £3.7 billion program of part-privatisation. The management of low and medium risk offenders was transferred to so-called Community Rehabilitation Companies (CRCs). Only the highest risk individuals were kept under public sector supervision.

But the Government’s privatisation program was dogged by controversy and criticism from the outset. I have previously blogged about concerns highlighted by the Chief Inspector of Probation in 2019. The criticism was such that shortly after, the Secretary of State announced that from December 2020, all offenders would be monitored by the National Probation Service again, thereby ending the role of the CRCs a mere 6 years after their much- vaunted inauguration.

In my last blog on this issue, I highlighted the case of Neil Rogers who by reason of Merseyside Community Rehabilitation Company’s incompetence, was wrongly recalled to prison to serve 28 days. As a result, he suffered not only loss of liberty but also psychological upset, and damage to his relationship with his family, and received an award of compensation to reflect his loss.

Sadly, this was not the only case of incompetence by the Merseyside Community Rehabilitation Company affecting one of my clients. This time, the victim of that Company’s incompetence, my client Tracey Williams (name changed), was not an individual on license and subject to recall to prison but rather someone who was reported for breach of probation and issued with a summons to attend Court.

Tracy was sentenced to 10 months in custody in late 2016. The sentence was suspended for two years and Tracey was to be supervised by Merseyside Rehabilitation Company for that time period.

Initially, the company was satisfied with Tracey’s level of engagement but in May 2018, her engagement allegedly dropped off, such that she was not meeting requirements. Merseyside CRC, conscious of their contractual obligations, believed that Tracey was in breach of the Court’s sentence and therefore reported her for that breach.

The Court processed the breach report and summoned Tracey to Court. Tracey failed to attend and a warrant for her arrest was issued.

Upon notification of the warrant, Merseyside Police then sought to arrest Tracey and in July 2018, attended her home address. Tracey was arrested in front of her partner and two children and then transported to a local police station where she was kept overnight to appear before the Court the next day.

At court and before Tracey appeared before the Magistrates, Tracey was told that there had been a “mistake” and she was immediately released, having spent some 15 hours in wrongful custody.

Upon investigation, I established that Merseyside Rehabilitation Company had failed to record Tracey’s change of address. Tracey had advised her offender manager in May 2017 of her move and she sent emails in October and November 2017 in which she clearly identified her new address.

However, her reported breach notification was sent to her old address, as was the subsequent Court summons. Tracey was therefore oblivious of both the allegation of breach and also the Court summons.

To compound matters, Tracey had not in fact breached the terms of her probation. She had engaged with the CRC’s requirements throughout and done everything asked of her.

Confident of success, I intimated a claim against Merseyside Rehabilitation Company on behalf of Tracey alleging negligence and breach of Human Rights.

Following investigation, the Company denied liability, suggesting that Tracey was entirely responsible for her arrest and detention and that their record keeping was not defective (although we had strong evidence that it was).

I then issued County Court proceedings on behalf of Tracey, and true to their incompetent form, Merseyside Rehabilitation Company missed the deadline for filing a Defence,  such that I was able to apply for Judgment by default. Despite some half baked effort to set Judgment aside, the company subsequently put forward realistic settlement proposals and agreed to pay Tracey damages and costs.

This is yet another case of a probation company sending someone to jail not because they have actually  breached the terms of probation or because they have committed a crime, but rather because of the negligence of the probation officer and/or the probation company.

Sadly, this appears to be a side effect of the botched part-privatisation process, with the CRCs apparently putting profits before people: both in terms of their duty of care owed to people on probation, and in terms of the standards of recruitment and training of their own staff. The latter in particular appears to have been highly inadequate, given the shocking errors these cases highlight, and the gross miscarriages of justice arising from them. If there was anyone in need of close scrutiny and vigilant supervision, it appears to have been more those running the CRCs than the people on probation.

If you or anyone you know has been the victim of similar errors/ incompetence from the Probation Service or a Community Rehabilitation Company, please contact me for advice.

Black & Blue: Police Violence against Ethnic Minorities

Violence begets violence; we have witnessed shocking scenes this week from the other side of the Atlantic, as Minneapolis erupted into flames as protests and riots broke out following the circulation of a video showing the death of George Floyd in Police custody. Actually ‘custody’ is too dainty and dignified a word for what was actually being done to George at the time of his death; a Police officer (now identified as Derek Chauvin and charged with third-degree murder) can be seen pinning him down on the ground by kneeling on his neck, and refusing George’s desperate pleas, and the pleas of numerous passersby, to let him breathe. Floyd’s crime, it seemed, was suspicion of attempting to use a forged cheque in a grocery store. Another Officer stands nonchalantly behind Chauvin in this very distressing video footage, hands in his pockets, apparently utterly unconcerned at his colleague’s actions. In a time when hundreds of thousands of people across the world are struggling for breath as a result of Coronavirus infection, it is tragic to witness the same type of suffering being inflicted by one human to another, and the fact that the violence was being inflicted by a man in a Police uniform against an unarmed black man is even more depressing.

Here in the UK we have, I believe, a similar problem of Police Officers (generally white) reacting with excessive force towards ethnic minority individuals, although fortunately (if we can put it that way) our Police Forces are not as heavily armed with weapons designed to inflict ‘lethal outcomes’ upon suspects and  so at least on this side of the Atlantic, the results of a Police Officer’s brutality does not often cause a fatality – though there is no doubt about the severe physical and emotional scars it can leave.

In the last month I and my colleague John Hagan have blogged about recent cases showing Police brutality against an unarmed black man in a Manchester petrol station (Desmond Mombeyarara, tasered without warning right in front of his young son) and also a 15 year old client of mine, whom an officer first punched in the face and then viciously kicked as he lay helpless on the ground.

I am heartened by the fact that the IOPC is investigating my client’s case and other related matters in the Birmingham area; it has come to light that the same Officer who assaulted my client (and who has now been suspended from the West Midlands Force) was apparently also caught on CCTV footage the previous day dragging a 44 year old black man from his bicycle, and tearing off the man’s coronavirus mask. Media reports state that the video shows the assault then escalating, with a female Officer holding the black man down as the male Officer punches him repeatedly.

Yet further footage has also emerged  from February of this year – shockingly showing what appears to be the very same male Police officer ordering a 30 year old black man (Trevalie Wyse) in the Handsworth area of Birmingham to get down on the ground, although he was not a suspect to crime, but rather a witness to a car crash. When Trevalie refused to comply with this outrageous command, he was then shot with a taser. Sometimes, words just escape you…

I also welcome the announcement made earlier this month that there will be a general review of taser use across the whole of England and Wales, lead by the IOPC in response to a need for greater transparency and scrutiny of the weapon’s continued ‘roll out’. Whilst the Government plans to arm up to 10,000 more Police officers with these ‘stun guns’ in the near future, Worcestershire Coroner Geraint Williams, investigating the 2017 death of 30 year old father Marc Cole, following his being tasered by Police multiple times,  issued a warning in April that “future deaths will occur unless action is taken.”

There is increasing evidence of disproportionate taser use against black men, and also people with mental health issues. Taser incidents in England and Wales rose by 30% during 2018- 19 to a total of 22,000. It is manifestly obvious that there was not a 30% increase in violent crime during that same period.

20% of those incidents involved tasers being used or threatened against black people – who make up only 3.3% of the population.

Let us hope that on this occasion the IOPC will live up to its media billing as the Police ‘watchdog’ and not, frankly, behave like the poodle it often is when reviewing Police crimes and misdemeanours…

As I have made clear on many previous occasions in this blog, I am concerned about the widespread ‘roll out’ of tasers to the majority of frontline Officers, as introducing a ‘paramilitary’ ethos into British Policing which I strongly feel is both unnecessary and counter- productive. This is a country with a largely passive and law-abiding population – witness how obediently the government’s Lockdown rules were followed by the vast majority (with the exception of Prime Minister’s advisers, of course). I am concerned that the more Police Officers are armed with weapons – even ‘less lethal’ ones like Axon Corporation’s increasingly ubiquitous Taser gun – the more those Officers risk becoming dehumanised (perhaps in their conception of themselves, perhaps in the eyes of others), and adopting the mindset of soldiers on patrol in hostile territory, rather than being fellow citizens ‘policing by consent’. This can lead to outbursts of unnecessary violence and/or unnecessary escalations of a conflict situation, whether that takes the form of Officers deploying ‘guns and gas’ or more ‘old school’ beatings and kickings as we have witnessed on countless ‘social media’ channels.

So it is a good thing that the IOPC is finally flexing what muscle it has, and I hope this will be the signal for a wider reconsideration of the role of taser and other weaponry in the hands of the Police, and an investigation into the cultures of Police protectionism which still exist and which both seem to attract ‘bad apples’ in the first place, and then tend to protect far too many of those ‘rogue officers’, for far too long.

Thankfully, it is increasingly hard for those within the Police hierarchies who may want to make excuses for their officers/ shield them from any real sanction when they commit acts of unjustifiable, or questionable violence, when so many of those acts of violence are now caught and exposed by mobile phone footage – smart phones, of course, being even more ubiquitous in our society than tasers amongst the Police.

This is another issue I have highlighted in my recent blogs – the great rebalancing of the scales of justice caused by the ability of people – whether themselves the victims of Police misconduct, or concerned/ socially conscious bystanders – to record the true facts of an interaction with the Police, giving lies few places to hide.

A description posted by a friend on Facebook this week in relation to the Minneapolis crisis, seems a very apt way to frame it: Camera phones and social media circulation together create “a potentially radical mirror of the surveillance state.”

The more videos of this kind are shot, whether in this country or in America, the fewer people will be; we can only hope.

 

Compensation for Police “inappropriate contact”

Another day, another report of a police officer dismissed for inappropriate contact with a vulnerable victim of crime (see here).

The unnamed PCSO of Warwickshire Police used social media to make contact with a female burglary victim after visiting her house in his professional capacity to offer crime prevention tips. The woman reported the officer’s behaviour and the Force’s Professional Standards Department commenced an investigation. Misconduct proceedings were subsequently brought against the officer, which concluded at a hearing on the 5th of May. There, it was found that the officer’s behaviour amounted to gross misconduct and that had he not quit in advance, he would have been sacked.

Media reports of this case coincided with a settlement that I have just agreed with Thames Valley police for another young woman. The background facts are remarkably similar; a police officer making inappropriate contact with a vulnerable female victim of crime.

In November 2017, my client Gemma Hawkins (name changed) attended her local police station to report details of the emotional and physical abuse which she had suffered at the hands of her ex partner.

PC Green attended upon her. Gemma explained what had happened and PC Green took a brief account. Gemma was with PC Green for about 30 minutes and assumed that the Police would now take action.

Following the meeting, PC Green proceeded to text Gemma, first from his work mobile phone and then from his personal mobile phone. Although the texts initially centred on Gemma‘s crime report, PC Green soon became suggestive and flirty with messages such as “Which is your favourite room at home?“, “It’s freezing. I can’t get warm, any ideas?” and “Only place I’m warm is in bed”. Over the following weeks, the messages became increasingly frequent, often daily, and were sent at all times of day when PC Green was both on and off duty.

Gemma was very disturbed by these messages and found them highly inappropriate, but at the same time she was nervous as PC Green was in a position of authority and she didn’t want to do anything to affect the investigation. In the circumstances, she played along, responding to his texts but rarely instigating any conversation herself (other than complaining about the lack of action against her ex partner). Those issues were conveniently ignored by PC Green who, without Gemma’s knowledge had in fact “filed” her report as a “non-recordable incident” and had taken no further action.

 

However, he continued to use the now ‘phantom’ investigation of Gemma’s ex- partner as an excuse to continue to make exploitative contact with her by phone/ text message.

After a few months, Gemma became very frustrated that nothing was happening as regards her ex partner and reported her concerns to a more senior officer. She expressed hope that this time her complaint would be taken more seriously and not as an opportunity to “chat me up“.

An investigation commenced. It was clear that PC Green had abused his position as a Police officer in an effort to pursue an improper emotional/sexual relationship with Gemma, something all the more reprehensible given that she had come to him as the victim of an abusive and exploitative boyfriend. PC Green was interviewed, during which he accepted that he was fully aware of Force guidance defining such behaviour as a serious form of corruption which would not be tolerated, and that he had “overstepped boundaries” in his efforts to form a relationship with my client.

Misconduct proceedings were brought against PC Green. At a misconduct hearing in July 2018, he was found to have failed to have treated my client, a vulnerable victim of domestic abuse, with respect and courtesy by sending messages of a personal nature and had failed to respond with advice to concerns of her domestic situation. As is often the case, Green himself had resigned before the hearing, but the Force made it crystal clear that he would have been dismissed for gross misconduct had he still been a serving Officer.

I intimated a claim on Gemma’s behalf against Thames Valley police, who were vicariously liable for their Officer’s actions/ exploitation of his Police role. TVP suggested that a claim was not made out because there was no evidence of ‘damage’, either injury or loss. Their argument was that although the text messages may have suggested or hinted that PC Green wanted to start a relationship with Gemma, they were not “overtly invasive or sexual” and in fact “might seem innocuous to an outsider“. It was very disappointing to be met with this response, which seemed designed to diminish and demean Gemma and everything she had gone through. On the one hand, the Force had taken appropriate disciplinary action against PC Green, but now with the other they were denying Gemma’s claim and almost endorsing Green’s outrageous conduct as ‘no big deal’, displaying an old school ‘well boys will be boys…’ mentality.

In response, I commissioned expert medical evidence which confirmed that PC Green’s contact had caused a material deterioration in Gemma‘s already vulnerable mental state, resulting in an anxiety and depressive disorder.

Following negotiation, Thames Valley police have agreed to pay Gemma £22,500 in compensation plus legal costs. I am sure you will agree that this is far from an “innocuous” amount of damages, and it reflects the true seriousness of this type of Police misconduct and the real harm it can cause.

No Trigger Warning: Another Case of Police Taser Misuse

This is a guest post by my colleague and fellow solicitor, John Hagan.

Another day, and so another shocking video of excessive force from a Police Officer, this time of Greater Manchester Police.

Mobile phone footage filmed by a bystander (watch it below) captured the moment when a black man was shot from close-range by a taser- wielding GMP Officer with no warning, no notice, no justification.


Mr Desmond Mombeyarara had been stopped by Police apparently on suspicion of driving offences, and was talking to the Officers, having just put down his young son – who distressingly witnessed what then unfolded – when one of them shot him with a taser ‘stun gun’.

The taser caused Mr Mombeyarara to collapse to the ground, where he lay helpless as his son cried out “Daddy, Daddy” and the Officer leant over him and discharged the taser again, causing Mr Mombeyarara to convulse upon the ground, whilst shouting instructions to Mr Mombeyarara to put his hands behind his back.

From the video evidence this appears to have been a fairly straight forward interaction between the Police and Mr Mombeyarara in the minutes beforehand, who can be heard saying (not shouting) that he is “Not causing a problem” just seconds before he is shot.

Image of police officer holding a taserThis is exactly the type of scenario which I and other lawyers spoke up against and warned about, when Police Forces nationwide started to push for greater “roll out” of taser guns to all “front line” officers. Training and vetting of Officers must be tightened and increased as their ‘firepower’ is increased, in my opinion, or you run the risk of this kind of incident occurring – where an Officer will just casually produce a taser and shoot a person they are interacting with, as if it is no big deal (which perhaps from the Officer’s point of view it isn’t).

In most situations, a taser gun should be seen as a weapon of last resort, not a device simply to be used to short- circuit a proper discussion with a suspect. College of Policing guidance to Officers requires them to consider 3 “core questions”-

1. If force is justified, how immediate and grave is the threat posed ?

2. Are there any means, short of the use of force, capable of achieving the officer’s lawful objective ?

3. Having regard to the nature and gravity of the threat, and the potential for adverse consequences to arise from the use of force – including the risk of escalation and the exposure of others to harm – what is the minimum level of force required to attain the objective identified and would use of that level of force be proportionate or excessive ?

I would challenge anyone making an objective assessment of this video to conclude that the Officers involved came anywhere near passing the test for reasonable use of force posed by those core questions. This is hammered home by the Ten Key Principles Governing the Use of Force by the Police Service, which include the following injunction as Principle 3 –

“Police officers shall, as far as possible, apply non- violent methods before resorting to any use of force. They should use force only when other methods have proved ineffective, or when it is honestly and reasonably judged that there is no realistic prospect of achieving the lawful objective identified without force.”

Could either of the Officers involved in this incident honestly argue that they had no alternative other than to taser Mr Mombeyarara at that moment? They appear to have acted with total disregard for the strictures set down by the College of Policing; we can certainly challenge how effective was their training in these guidelines and models of behaviour, if all of that training, as it apparently did, went out of the window simply because one of the Officers had a taser within easy reach.

Image of UK policeIn my opinion, the increasing number of incidents like this being caught on camera is a warning as to quite how many Officers are going straight to a device to which electrocutes and paralyses a person, causing them to fall helplessly – but far from harmlessly – to the floor – as soon as they have any sort of disagreement or dispute with that person. This is a state of affairs which demonstrates laziness from the officers involved and/or a lack of awareness of the extent of the risk this weapon poses to a person’s health (life and limb?); not least to add, in this particular case, the mental scar the Officer may so casually have inflicted on the young child who witnessed his father being, quite frankly, ‘gunned down’ in front of him.

We honestly have to ask what was going through this officer’s mind, and do we want to have a society in which a few moments of ‘talking back’ to an officer justifies him incapacitating you through electrocution?

Let us keep front and centre in our consideration of these issues, the fact that the producers of the Taser weapon themselves (the American corporation Axon) market it as a ‘less lethal’ not non- lethal weapon. The possibility of serious injury or death exists on each and every occasion when the weapon is deployed.

It is also both disturbing and unsurprising that the victim in this case was once again a black male. It is well documented how our predominantly ethnically white police force will use their taser weapons disproportionatly against people of black and ethnic minority backgrounds/ appearance. A recent report in the Guardian newspaper highlighted how use of tasers increased by 39% last year as more and more Officers were armed by them, and Home Office figures revealed that black people in England and Wales were almost 8 times more likely to have tasers used against them than white people. It would seem that the increasing prevalence of this weapon is exacerbating long- existing problems of confirmation bias and ingrained racism in the attitudes of our Police towards black and ethnic minority members of society. That is yet another reason to take a long look at whether their increased ‘roll out’ should be allowed to continue.

Cold, hard statistics like that, as well as the vivid evidence of individual incidents such as this video, demonstrate that some Police officers simply can’t be trusted with these weapons.

We can only hope that the Independent Office of Police Conduct will now do their duty and thoroughly and impartially investigate this incident and sanction the Officers involved – as it seems that many officers are going to have to be snapped out of the dangerous complacency into which they have fallen in terms of their relationship with the taser gun, by a suitable shock to the system.

There is of course an appropriate place for these weapons in the Police officer’s arsenal. The use of a taser to render helpless a knife wielding terrorist on the London underground is an incident we all recall, and the Officers involved in that incident were rightly praised for their bravery. But what these officers of GMP did was not brave; in fact it was totally unnecessary. Officers need these weapons to handle terrorists and other dangerous criminals; they must not become a kind of go to ‘tagging device’ used in any interaction the officer feels like, any low- level dispute, any minor aggravation. Officers should not use this device to bypass their brains, or their duty to always use reason and empathy to attempt to de-escalate and resolve a situation. To do otherwise is an abuse of power, and any Officer who does that is far from being a hero.

I noted that a lot of the media outlets carrying this video included a ‘trigger warning’ captioned before the video started to play… well, that is far more warning than Mr Mombeyarara got.