Fighting for Access to Justice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

“I should never have been prosecuted. The Police Officer told lies.”

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

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

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

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

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

This means a lack of either –

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

What does “Acted with malice” mean?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Two officers, PC A  and PC B then emerged into the foyer and walked towards Mr Khan.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr Khan was advised to bring an action against the police.

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

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

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

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

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

The problem of self-diagnosis

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

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

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

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

Here’s what happened.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

One officer, PC B introduced himself to my client.

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

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

My client asked, “Who did I assault?”

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

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

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

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

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

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

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

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

What were those other heads?

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

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

Misfeasance in Public Office

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

Malicious process

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

Defamation

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

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

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

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

My client’s claim continues. The Defendant has filed a robust defence and the case proceeds to trial. I am confident of success.

Presumption of Innocence Restored?

According to a recent report in the Mail on Sunday, the Police are “to drop their controversial policy of automatically believing anyone who reports a crime”.

The College of Policing have apparently produced new guidance for Police Officers encouraging them to be open-minded and impartial but not automatically assume that ‘victims’ are telling the truth.

In my opinion, such guidance cannot come too soon. I am aware of a number of miscarriages of justice that have arisen since the adoption of this ‘believe all’ policy.

The policy arose after the Jimmy Saville scandal when it was established that police had previously not taken seriously many rape and sex abuse claims and had too much power to decide whether or not allegations should be investigated.

Following review by the HM Inspectorate of Constabulary in 2014, it was reported that there was a national under–recording of crime by nearly 20%. In this context, the Chief Inspector, Tom Winsor recommended that “the police should immediately institutionalise the presumption that the victim is to be believed”.

This recommendation led Police Forces to adopt what the previous Metropolitan Police Commissioner, Sir Bernard Hogan-Howe later described as “requiring officers to assume an allegation of abuse is truthful” ie to investigate an allegation on the basis that the crime had been committed and the alleged perpetrator is guilty.  (Radio 4 interview on the Today programme on 11/2/16.)

Not only was this a fundamental shift in policy away from the long-standing practice of the assumption of innocence until proven guilty, it was a misunderstanding of Mr Winsor’s recommendation. His recommendation was in the context of recording crime in official statistics not of how claims should be investigated. Indeed, it led to Mr Winsor to write to Sir Bernard Hogan-Howe advising him of this error and how “the two should not be conflated”.

Sadly, this misguided policy appears to have been very much in the minds of those officers investigating an allegation of rape made against my client, Joe Lovell (name and some details changed) in July.

My client a man of exemplary character, was engaged by his firm to carry out certain works at an address in London on 8 July.  He duly attended, and met the female occupier Miss R and carried out the necessary works.

From the outset, there was an instant connection between my client and Miss R and the two exchanged contact numbers and made arrangements to meet at her address, the next day, the agreed purpose for which was for sexual activity to take place.

My client contacted Miss R on the 9 July to confirm his attendance, arriving shortly after 7.00pm.

On his arrival, Miss R answered the door to the address, appearing with nothing more than a bath towel draped over her.

Mr Lovell was invited into the address, whereupon Miss R began to initiate intimate behaviour, kissing my client and then inviting him upstairs.

My client then engaged in full consensual intercourse with Miss R, she providing him with a condom by means of contraception.

Following intercourse, my client left the address, indicating he would be in touch with Miss R at a later date.

Between the 14 – 18 July, Mr Lovell was out of the country to visit family and friends.

On or about the 16 July, my client was contacted by Miss R, and accused of committing a burglary at her address. Upon his disclosure that he was out of the country and had been for several days, Miss R then suggested that whilst he may not have personally participated in the burglary, but had otherwise orchestrated this to take place.

My client rejected any notion of any involvement in any burglary which may have taken place and went so far as to invite Miss R to provide his details to the Police, if she was convinced as to his alleged involvement.

My client received no Police contact with regards to the alleged burglary.

Miss R went on to report the alleged burglary on the 16 July, making no reference to any other alleged offence to have taken place.

On the 23 July, Miss R was advised by the police that due to there being insufficient evidence to identify any suspect, the burglary investigation was to be closed.

Surprisingly, on being advised that no further action was to be taken, Miss R then chose to allege to the police that she had been raped by my client on the 9 July and wished to pursue a formal complaint.

On the 24 July, Miss R spoke to officers, reaffirming her allegation of rape  and subsequently attended her local Police Station where she provided a full account of her allegation, by means of a video recorded interview.

On the 28 July, officers attended my client’s place of employment, whereupon he was arrested on suspicion of rape, in the presence of his colleagues and taken into Police custody.  The justification to arrest being based on reasonable suspicion and in order to carry out “a prompt and effective investigation into the allegation”.

He was detained for just over 5 hours before being released on Police bail.

On the 8 December, an evidential review was carried out  by the Police which concluded that there was insufficient evidence on which to proceed, the case not reaching the evidential threshold.

My client was devastated by his arrest and detention, his period on Police bail whilst awaiting confirmation as to his fate and of even greater significance, the fact that he now had a Police record; his name, fingerprints and DNA now being stored on the Police National Computer.

He knew that the allegation of rape was that of a liar and fantasist.

Mr Lovell lodged a complaint. Following investigation, a Senior Detective Inspector in the Sex Offences, Exploitation and Child Abuse Command dismissed the complaint finding that the arrest was both lawful and proportionate based on the account of the victim.  He went on; “the underlying principle of rape investigation, as set out by the Her Majesty’s Inspectorate of Constabularies is that “the police should immediately institutionalise the presumption that the victim is to be believed.  If evidence later comes to light which shows that no crime occurred, then the record should be corrected”.

In this case, the Police most certainly had a duty to record the alleged crime.  Thereafter, their job was to “test the accuracy of the allegations and the evidence with an open mind, supporting the complainant through the process”.  (Sir Bernard Howe; article in the Guardian 10/2/16 – “Suspected sex offenders have rights the police must respect”).

So was my client’s arrest “lawful and proportionate”?  The case is ongoing.  I accept this was a difficult case, the central issue being that of “consent” with two differing accounts provided.

But consider the following undisputable facts:-

  1. The failure of Miss R to make any reference to such an extremely serious offence in the immediate aftermath of the 9 July.
  1. The failure of Miss R to allege that she had been raped when reporting the burglary on the 16 July.
  1. The remarkable timing of the allegation of rape, occurring only after notification had been given to Miss R that no further action would be taken in respect of the alleged burglary.
  1. The disclosure to the Police by Miss R that she had voluntarily provided my client with a condom.

The Metropolitan Police openly accept that upon notification of the alleged rape, they applied the “Believe all” policy that they had insisted after misinterpreting the recommendation of Her Majesty’s Inspectorate of Constabularies (as explained above). I believe that this materially affected their subsequent investigation and decision to arrest my client.  Had they instead approached the case with an open mind, perhaps they would have realised either that there was no merit in the allegation or alternatively that rather than arrest, they could and should have sought to proceed by way of voluntary interview thus avoiding my client’s distressing and humiliating arrest in front of friends and work colleagues and leaving him stigmatised with a Police record.

The presumption of innocence is fundamental to the health of the Criminal Justice System in a modern liberal society. “It is better that 10 guilty persons escape, than that 1 innocent suffer” wrote William Blackstone in Commentaries on the Laws of England in 1765 and this principle is enshrined not only in English common law but in Article 6 of the European Convention on Human Rights and underpins much of the US constitution.

Clearly no one wants to return to the ‘bad old days’ when police officers – invariably male–turned a blind eye to accusation of child abuse, and treated many rape victims with disbelief and hostility, but we cannot go from one extreme to the other. Every case could and should be investigated by the Police with an entirely open mind. My client is not, I suspect, the only person to have fallen victim to the Metropolitan Police’s misguided and blinkered policy.

What does it mean to assault a Police Officer in the execution of his duty? (Part 3)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A pre-trial review was set for February 2019.

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

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

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

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

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

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

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

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

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

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

What does it mean to assault a police officer in the execution of his duty (Part 2)

In my last blog, I discussed the offence of assaulting a Police Officer in the execution of his duty and highlighted how various actions may take an officer outside the execution of his duty such as carrying out a wrongful arrest.

Another action that may take an officer outside the course of his duty is if he was unlawfully on premises and therefore a trespasser.

A few years ago, I acted for Jack Harper in an action against Merseyside Police.

In the early hours of 29 January 2007, Jack Harper was at home, in his kitchen talking and drinking with a neighbour, Mark.  Neither man was drunk. Nothing was untoward.

At around 02.55h there was a knock on the front door, which opened into the kitchen.  Jack Harper opened  the door and was shocked as uniformed police officers burst through without warning, invitation or explanation and  attempted to barge past him.

Jack Harper immediately told the officers to leave and repeated that instruction on several occasions to no avail. He had no idea why the officers were there, and nor did they attempt to explain themselves.

Jack stood still and put out his arms to block the officers’ progress into the house. The officers attempted to push past him but couldn’t due to his defensive position within the narrow kitchen.

According to Mr Harper, this was the extent of the physical contact which he instigated with the officers. He did not himself push, hit or attempt to hit any officer. He was doing no more than standing his ground in response to what happened to be an unlawful ‘invasion’ of his home.

Jack Harper was by this point shouting ‘Get out of my fucking house, this is my home’. Without any attempt at explanation or reasoning the police officers forced him to the floor and handcuffed him, causing immediate pain and discomfort to both of his wrists.

At no time did any officer comply with Jack Harper’s clear instruction to leave his property.

Jack Harper was taken from his home to the local police station where he arrived at 03.14h. His detention was authorised at 03.22h. The custody record recorded that he had been arrested for assault upon a constable in the execution of his duty. Specifically that:

“Report of Domestic.  On arrival IP states male had been causing problems banging on door.  Male now believed at being at neighbouring address.  When OIC attends address to speak to male door is opened up and DP immediately violent towards office striking and pushing.  Arrested”.

At 14.30h Jack Harper was interviewed.  In interview, Jack Harper gave a full account and indicated that no officer had at any time told him why they had attended his home. He confirmed that there had been no conversation at all prior to the officers’ entry to the premises. The man who the officers were looking for was not Jack Harper, but his neighbour Mark  who was visiting him at the time.

At 15.04h (therefore after 12 hours and 4 minutes in police custody) Jack Harper was bailed to attend the same police station at a later date.  Jack Harper was subsequently charged and bailed to attend Court where he pleaded not guilty.

At the subsequent trial, one officer gave evidence and claimed that Jack Harper had pushed him twice to the chest then lunged at him in an attempt to punch him. A second officer claimed that Jack Harper pushed the first officer off a step, pushed him again, swung a punch and then pushed both palms to the officer’s face.  A third officer claimed to have arrived later than the other two officers and to have seen Jack Harper raise his arm in the kitchen.  He and other officers pushed Jack Harper to the corner of the kitchen.

A submission of no case to answer was successful. The Magistrates ruled that there were so many inconsistencies in the evidence presented by the police officers that no Tribunal could properly convict Jack Harper.

When I was consulted by Jack Harper, I was satisfied that he had strong grounds for a claim not only because of the clear inconsistencies in the evidence of the Police Officers but because it was equally clear that the Police were trespassers in his home, and as such could not claim to have been acting in the execution of their duty, thereby rendering Jack Harper’s arrest and detention on suspicion of assaulting a constable in the execution of his duty entirely unlawful. 

An officer is not acting in the execution of his duty of he is a trespasser. The starting point for trespassing, is that without at least implied permission to enter onto someone else’s property, you are committing trespass if you do so enter.

Here, not only was there no implied permission to enter Jack Harper’s home, but he was expressly instructing the officers to leave – in no uncertain terms – but they ignored him. They were clearly all trespassers.

In certain situations, the Police can rely upon Section 17 of the Police and Criminal Evidence Act 1984 (PACE) to ‘override’ the general rules of trespass and lawfully enter premises without permission.  There are a number of specified situations where this power can be used e.g.

  • If the Police have a Warrant of Arrest.
  • In order to arrest a person for an indictable offence.
  • To re-capture an escaped prisoner.
  • To save “life and limb”.
  • To prevent an ongoing or imminent Breach of Peace.

(That is not an exhaustive list, but most of the other situations in which Section 17 PACE applies are fairly uncommon.)

In the present case, the only possible power the Police could have been using would have been Section 17(1)(b) – entry for the purpose of arresting a person for an indictable offence.  An indictable offence is a serious criminal offence to which the right of a trial by Jury in the Crown Court applies, as opposed to a more minor ‘Summary offence’ which can only be tried by the Magistrates’ Court.

Here, although I did not know for certain what the Police wanted Mark for, given the entry in the custody record, I suspected it was likely to be a relatively low-level offence e.g. Common Assault which is not an indictable offence – and hence the Police had no lawful authority to enter Jack Harper’s premises and could not have been acting in the course of their duty.

An officer cannot be acting in the execution of is duty if he is committing trespass at the same time.

My suspicions as to the lack of any lawful basis for entry onto Jack Harper’s premises, were confirmed when in response to my letter of claim, Merseyside Police admitted unlawfully arresting and detaining Jack Harper, and I was able to agree an ‘out of Court’ settlement of damages for his claim.

Sadly, Jack Harper is far from the only individual I have represented who has been arrested by Police Officers acting either in ignorance or wilful disregard of the law of trespass.

I currently act on behalf of John Stokes who pursues a claim against Merseyside Police.

During the late evening of the 18 December 2015, John was relaxing at home, in the company of his two children.

Shortly after 11.pm, Mr Stokes heard a knock at his front door.

John Stokes, believing that it was his partner at the door, requested that his son (then aged 16) go to answer the door.

Soon after John’s son returned, and advised that a Police Officer was at the door.

Mr Stokes went to the front door where he found a uniformed Police Officer standing with his left foot over the door threshold, inside the house.

Neither John Stokes nor his son had granted the officer any consent/permission to enter the address.  The officer simply took it upon himself to do so.

Unbeknown to my client, the officer was making house to house enquiries in respect of a serious road traffic accident which had taken place in the street earlier that day.  This accident was nothing to do with my client.

Understandably, John Stokes was displeased with the actions of the officer in standing partially inside his address and immediately requested that he remove his foot from its position.

In response, the officer  became immediately hostile/aggressive, stating that he could detect a smell of cannabis from the address and that he wanted to check for the presence of any substance.  So as to reinforce his intentions, the officer  then stood with both feet inside the house.

John Stokes, shocked at the arrogant and heavy-handed attitude of the officer retorted that there were no drugs within the premises and whatever suspicions the officer may have had in regards to the use of cannabis, these were mistaken.  John went on to suggest that it may well have been a smell emanating from neighbouring properties.

The officer insisted to our client that he had the right to enter the property and search for drugs and that if he wished to do so, then he would.

Mr Stokes was not prepared to be overborne by the officer and insisted that no-one from his address had consumed any drugs and that there was no aroma of cannabis.

The officer then stated that he would be obtaining a warrant and requesting dogs to attend.  My client understood the reference to dogs to mean dogs trained in the detection of controlled drugs.

Eventually, the patience of John Stokes came to an end.  Accordingly, he explained to the officer that it was time for his children to go to bed, his partner was due home and the officer’s suspicions were unfounded.

John then used minimal and reasonable force to push the officer backwards before closing and locking the front door.  Remember that the officer had not been invited onto the premises, and had no power to enter under PACE.  He was therefore at all times a trespasser.

The officer then proceeded to kick repeatedly on the front door, demanding that it be re-opened.

Not only was John concerned by the very conduct of  the officer itself, but was acutely aware that his partner, Julie was due to return home at any moment.  For this reason, he contacted Julie on her mobile to warn her of the presence/conduct of the officer.

Prior to Julie’s return, the officer had requested assistance from colleagues, who arrived a short time later.

When Julie arrived she entered the family home, followed (uninvited) by the officer and his colleagues.

Not only did the officer have no consent to enter the address, he was not acting under any lawful authority/statutory power by entering.

Shockingly, the officers then proceeded to handcuff and arrest John Stokes.

Despite it being obvious that he was in the process of being arrested, Mr Stokes was not told at the outset the reason for his arrest.

Some 10 minutes later, John was told that he was under arrest for assaulting the officer and that he would be moved to a Police Station.

Following arrival at St Ann Street Police Station, John proceeded through the booking in procedure, was searched and lodged in a cell.

Later during his detention, my client was required to provide his fingerprints, DNA sample and be photographed.

The next morning, John Stokes was interviewed under caution, during which he denied all allegations made by the officer.

Notably, during interview, he was not asked any questions pertaining to cannabis.

During the detention period of my client, the officer prepared a witness statement under the provisions of Section 9 of the Criminal Justice Act 1967.  This statement was used as the basis on which to charge my client with the single offence of assaulting the officer in the execution of his duty.

My client was bailed to appear at Liverpool Magistrates Court on the 15 March 2016.

At trial in September 2016 (having earlier pleaded not guilty), John Stokes was found not guilty, following a legal submission to the sitting Justices that the prosecution had failed to establish a case for my client to answer.

On the 6 December 2016, Mr Stokes submitted a formal complaint against the officer.

Following investigation, the complaint was upheld, in terms that John Stokes had been unlawfully arrested and subjected to unnecessary force.

Key findings of the Complaint Report are reproduced below:

“In the statement of the officer requests further patrols attend to assist with gaining entry into the property to arrest but does not stipulate for what offence.  There is a radio transmission which states the female occupant has returned and is opening the door.  In his statement he states that he followed her into the property as he wished to ascertain the safety and whereabouts of John Stokes and the 16 year old male and to arrest John Stokes for the assault. The female was shouting for the police to leave and get out of her house. 

The officer was asked under what power he entered the property to which he responded that he entered under Section 17(1) (D) – to enter and search a premises for the purpose of recapturing a person, as John Stokes had been told he would be arrested by the officer after he had assaulted him.  

Section 17 (1)(D) of the Police and Criminal Evidence Act 1984 (PACE) gives a power of entry to recapture any person whatsoever, who is unlawfully at large and whom he is pursuing.  

John Stokes had not been detained, or arrested, for any offence and was not unlawfully at large. 

At no point did he arrest John Stokes for drug related offences. 

He had no power of entry to enter to arrest for Assault Constable in the Execution of his Duty as it is not an indictable offence, it is a summary offence only. 

The officer had not been invited into the property, in fact in his statement he says that after explaining the reason to enter to Julie, she was shouting for the police to leave and get out of her house. 

The officer had no power of entry, was not invited into the property and was asked to leave.  Therefore, as there was no power of entry, the arrest and force used thereafter in the application of handcuffs was also incorrect.”

 All entries into John Stokes’s home by the Police that night were unlawful and constituted trespass.  Specifically, the officer had no initial consent or license to so enter and by remaining within the premises following a request to leave, his continued presence made him a trespasser.  Thereafter, the subsequent Police entry for the purposes of arresting John Stokes was not permitted by law, neither Section 17 (1) (B) nor (D) of the Police and Criminal Evidence Act 1984 being operative.  As stated above John Stokes had not previously been arrested (he was not an escaped detainee) and nor was the offence alleged by the officer an indictable offence, and nor in any event could the officer have been acting in the execution of his duty when he was in fact trespassing.  When John Stokes pushed the officer out of his house (with minimal force) the officer was not, in the eyes of the law, a Police Officer on duty, but in fact a trespasser.

John Stokes’s claim is continuing and I expect him to recover substantial damages.

Please contact me for advice if you believe Police Officers have unlawfully entered your home. In my experience there are numerous occasions when the Police overstay their powers in such situations, thereby becoming trespassers and it is only right to use the full force of the law to hold them to account when they do so.

What does it mean to assault a Police Officer in the execution of his duty?

According to up to date Home Office statistics, there are approximately 23,000 assaults against Police Officers in the course of their duty every year. There are 124,000 Police Officers in England and Wales, but nevertheless that first figure might appear shockingly high.

But what does it mean to assault a Police Officer whilst on duty? And can you claim compensation if in fact you have been wrongfully arrested for assaulting an Officer.

By virtue of s89(1) of the Police Act 1996, a person commits an offence where he assaults a Police Officer in the execution of his duty.

Assault’  is not defined  in the Act and so the Common Law definition applies; an intentional or reckless application of force (a punch, kick or even merest unwanted touching) or the fear of immediate unlawful violence to the person (even if that does not in fact then occur).   So the first thing to point out is that the majority of arrests and prosecutions for this offence are not brought in respect of violent, unprovoked attacks on Police Officers but rather in respect of ‘technical’ assaults, for example placing a hand on the Officer or lightly pushing the Officer away.   It is imperative therefore to put these statistics in context.

Be that as it may, whether the officer at the material time was acting in the execution of his duty is often the more controversial issue to resolve.  Various actions may take an officer outside the execution of his duty such as carrying out a wrongful arrest or being unlawfully on premises and therefore a trespasser.

It is a cardinal principle of the common law that a Police Officer has no power to take hold of or detain a person in the absence of lawful authority (this would, of course, constitute an assault upon that person) and that a person who is unlawfully detained is entitled to resist such unlawful act provided he uses no more than reasonable force to do so.

I recently concluded a claim for Lee Fisher of Hampshire wherein the Court had to determine whether his arrest was lawful and therefore whether the officer was acting in the execution of her duty. (Lee and his wife, Carley, have kindly agreed to me using their details.)

At all material times, Mr. Fisher and Carley were the owners of a small food service business which ran a catering van which ordinarily parked up for business in the Southampton Market Precinct.

On the afternoon of the 7 June 2014, Mr. Fisher was at the van helping out, together with his wife.

At approximately 3:30pm, Police Constable S and Special Constables S and W arrived at the van.

PC S introduced herself and the two Special Constables. She explained that she had attended so as to issue a harassment warning to Mrs Fisher in respect of comments made on a local news website regarding a local business man, Mr. A.

Mr. Fisher and his wife were at that time embroiled in an ongoing business dispute with Mr. A.

Both Mr. and Mrs. Fisher took exception to the issue of the harassment warning, advising the officers that the Police were being manipulated by Mr. A in an attempt to assist him in the ongoing business dispute and that involvement of the Police was  a waste of valuable public resources.

Mr. Fisher suggested that they all go and speak to Mr. A to resolve issues.

PC S warned  Mr. Fisher that he would be arrested should he approach Mr. A or enter his place of business which was located on the High Street.  Mr. Fisher replied that neither PC S nor any other Police Officer could stop him from going to the High Street.

Before the arrival of the officers, Mr. Fisher had intended to attend the local Argos Store with a view to  purchasing a fan.  The Argos Store was located within a short distance of Mr. A’s business premises on the High Street.

In the circumstances, Mr. Fisher left the van and proceeded towards the Argos Store.  En route, he entered BHS so as to use the toilets.

Mr. Fisher then entered the Argos store and spent three or four minutes in the store browsing before collecting a catalogue and then leaving the store in the opposite direction to Mr. A’s business premises and intending to return to the van.

Having left the store, Mr. Fisher saw PC S, SC B and SC W outside.

PC S called Mr. Fisher over.  He approached as requested.  At the time, he was carrying an Argos catalogue in his right hand and a drink carton in his left hand.

PC S advised Mr. Fisher he was under arrest for breach of the peace, notwithstanding the fact that he was walking in the opposite direction to where Mr A’s business premises were located.

PC S directed SC W to ‘handcuff him’.  SC W then grabbed Mr. Fisher’s left wrist and applied a handcuff to the wrist.  SC W then sought to force Mr. Fisher’s left arm behind his back whilst PC S took hold of Mr. Fisher’s right wrist.

My client believed his arrest to be unlawful and resisted the officers’ efforts to handcuff him by holding on to PC S’s right hand.  Mr. Fisher questioned the officers as to how he had allegedly breached the peace.   PC S advised that Mr. Fisher had been warned not to go to Mr. A’s business premises.

At this point, PC S directed her colleagues to take Mr. Fisher to the ground. The Claimant shouted words like “Don’t throw me to the floor, I’ve just had knee surgery” and resisted.  He was warned that he would be CS gassed. Mr. Fisher continued to protest his innocence and struggle.

SC B then performed a leg sweep manoeuvre taking Mr. Fisher down so that he fell forwards on to his front and landed heavily on both knees causing Mr. Fisher immediate pain and discomfort.

Mr. Fisher was then pinned to the ground with SC B kneeling on the back of Mr. Fisher’s  lower legs.  He was then handcuffed to the rear. Mr. Fisher immediately complained that the handcuffs were too tight and requested that they be loosened.  This request was initially refused.

Much to Mr. Fisher’s embarrassment, the incident took place in a busy shopping area in front of numerous passers-by, some of whom were taking photographs and videos on their mobile phones, presumably believing that they were witnessing the arrest of a violent and dangerous offender. 

Having been detained, Mr. Fisher  was advised that he was now also under arrest for assaulting PC S.  Other officers arrived and my client was escorted into a police van and driven to Southampton Custody Suite.

In the holding room of the Police Station, Mr Fisher was re-handcuffed from rear to front stack position.  By reason of the handcuffs, Mr. Fisher was at this time experiencing excruciating pain in both thumbs, wrists, hands and arms.

Mr. Fisher was taken before the Custody Sergeant where he was advised that he was under arrest for breaching the peace and assaulting PC S.

The circumstances of arrest as recorded in the Custody Record were said to be as follows;

Police giving wife harassment warning.  Male became angry and aggressive and said he is going to go down there.  Police warned that if he went down there he could be arrested for harassment or breach of peace. He said “I’m going to go down there and stand outside, that’s not harassment – Police said “If you go down there I will arrest you in order to prevent a Breach of the Peace”.  Male walked off saying he was going down there.  Police followed male walking in and out of shops and male was next to aggrieved’s address.  Male was arrested to prevent a Breach of the Peace.  During arrest male assaulted Police Officer by gripping and bending wrists back and trying to head butt same officer.

At approximately 23:55, the Claimant was interviewed under caution in the presence of his Solicitor.  In interview, he gave a full and detailed account and denied the offence. By approximately 1.00 on 8 June 2014 the interview had concluded. 

At 01.24, a post interview update was carried out by the investigating officer who endorsed the custody record as follows; 

“There is a statement of complaint from the victim [Police Constable S]. There are statements from the two witnessing Special Constables.  There is apparently no visible injury to the victim [PC S]. 

The DP has been interviewed.  He has given an account.  He denies the offence but states that he took hold of the officer’s hand to prevent himself being handcuffed as he didn’t believe that he had done anything wrong.  He denied trying to headbutt the officer. 

Two other officers, PC B and PC K, attended to assist after the DP has been arrested and were present when the DP tried to headbutt the officer.  Neither officer has yet made a statement. Both officers are on duty from 08.00 hours in the morning, 08/06/2014, and will be requested to make a statement. 

The area of the incident is covered by City CCTV.  However, they will not download the CCTV this evening.  CCTV will be available to review in the morning, 08/06/2014. 

PC S to be contacted in the morning to establish if any visible injury has developed. 

The DP admits in interview to taking hold of the officer in order to prevent himself being handcuffed, although he denies committing any offence in doing so.  The further enquiries documented above may be completed within the constraints of the Pace clock and would allow for a disposal decision to be reached. 

The DP will remain in custody whilst these enquiries are completed”. 

Later that morning, custody staff failed to give Mr. Fisher any breakfast notwithstanding an inaccurate entry on the Custody Record suggesting that at 07:14 Mr. Fisher was offered and accepted a hot meal.  When challenged, custody staff suggested that Mr. Fisher had in fact had his breakfast which he disputed.  Subsequently, Mr. Fisher was told “You’ve assaulted a Police Officer, that’s what you get”.

At 11:14, Mr. Fisher’s Solicitor rang for an update. The Custody Record states;

“The case is proceading (sic) but I do not have access to case/occurrence.  Solicitor advised – he made representations about the delay as he belienved (sic) that all we were waiting for was CCTV.  Sgt to be informed when she is free”.

At 12:00, a further update is recorded specifically;

“I have spoken to CIT in relation to the DP.  I have also reviewed the statements.  In short Fisher was detained for a BOP where he then resisted arrest and in doing so has injured the arresting PC.  Mr Fisher has admitted  to resisting arrest but states  that he was in disagreement with the arresting officer.  We have obtained statements from the arresting officer and also 2 other officers that were at the scene”.

At approximately 12.11, Mr. Fisher was charged with assaulting PC S whilst in the execution of her duty and released at approximately 12.14 on police bail to attend Court having been detained for over 20 hours in custody.

Mr. Fisher subsequently attended Court and pleaded not guilty.  The prosecution against him was adjourned for summary trial. The first trial had to be adjourned by reason of court administrative errors and then again because of  PC S’s unavailability.  The trial eventually took place 10 months later.   Following trial, Mr. Fisher was found not guilty.

The District Judge conducting the trial stated quite correctly that the primary issue to be determined was whether Mr. Fisher’s arrest for Breach of the Peace was justified.

The District Judge found that Mr Fisher was committing no crime by visiting the High Street and specifically was not committing any breach of the peace when the officers decided to arrest him.

Given that Mr. Fisher’s arrest for Breach of the Peace was unlawful, his arrest for assaulting PC S was also unlawful in that PC S was not acting in the execution of her duty.

Following an internet search Mr. Fisher contacted me.  He provided a full account and some prosecution papers.  I was satisfied that in light of the Court’s findings at the Magistrates’ Court trial, Mr. Fisher had a strong claim against Hampshire Constabulary for unlawful arrest, false imprisonment and assault and battery.

By reason of the incident, Mr. Fisher suffered both physical and psychological injuries.  I commissioned reports from both a GP expert and Psychiatrist.

Following examination, the GP expert found that Mr. Fisher

“suffered contusion injuries and neuropraxia to the superficial radial nerve at the dorsum of the wrist and that he made a full recovery within 6 months and that he also “suffered contusion injuries to the knees and calves.  Mr Fisher had suffered pre-existing chronic knee pain and the index incident resulted in aggravation of pain for the period of 6 months after the index incident”.

The psychiatrist concluded that

“Following the index events, Mr. Fisher suffered from an Adjustment Disorder (which was) likely to have lasted around 12 months and so having lasted beyond a 6 month period met the diagnostic criteria for Prolonged Depressive Reaction”.

Notwithstanding my confident assessment, Hampshire Constabulary failed to admit liability and it was necessary to issue court proceedings.  As is often the case, the act of instituting Court proceedings concentrates the mind and the Defendant responded  in a more positive manner. After a flurry of offers, I am pleased to confirm that Mr. Fisher’s claim settled for £20,000 plus his full legal costs.

As this case illustrates it is certainly not the case that all of those 23,000 recorded assaults upon Police Officers in the line of duty by the Home Office are in fact serious or substantiated.  The present case is an example, where the officer in question may have mistakenly believed she was acting in the execution of her duty, when in fact she was not, and Mr Fisher lawfully resisted her in an attempt to protect himself from a wrongful arrest.

Another feature of cases involving allegations of assault upon Police Constables is that it is often – as we saw here –  the suspect for the offence who has been left with serious injury and the alleged victim  (the Police Officer) who shows little or no discernible injury.

Lies, damned lies and statistics as they say?