Can the arrest of a child ever be justified?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

35,000+1 reasons to sue the Police

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Photo of Paul Ponting in hospital.
Paul Ponting in hospital.

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

Magistrates Court Trial

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

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

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

Complaint Against Lancashire Constabulary

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

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

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

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

Claim Against the Police

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

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

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

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

2nd October 2018 update

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why its crucial to expose sexual misconduct by police officers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How Police Avoid Accountability From Body Worn Cameras

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

All names changed.

My Thoughts On “Finn’ s Law”

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

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

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

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

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

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

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

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

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

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

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

Severe Injuries from Unprovoked Police Dog Attack

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Police Corruption Exposed

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

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

Article 8 of European  Convention on Human Rights provides:

Right to respect for private and family life 

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

The facts

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

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

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

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

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

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

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

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

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

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

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

Mrs Hall got dressed, went downstairs and went outside.

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

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

Neither officer acknowledged Mrs Hall.

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

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

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

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

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

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

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

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

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

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

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

Was Article 8 engaged?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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