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In my last blog, I referred to a successful claim against the National Crime Agency where by reason of an administrative mistake my client had been wrongly arrested and then given onerous bail conditions for several months.

The National Crime Agency admitted, correctly, liability for false imprisonment and breach of Articles 5 & 8 of the Human Rights Act.  However, any claim against the National Crime Agency  in negligence would, in my opinion have failed.  Why?  Because as a general rule, no duty of care is owed by the National Crime Agency (and other prosecuting agencies) because of the “Hill principle” which established that the Police (and other prosecuting agencies) owe no duty of care to individual members of the public for acts committed in the course of investigating  or suppressing crime.

The exception to that general rule is where the Defendant has assumed a responsibility towards a Claimant. That well-established proposition was most recently upheld by the Court of Appeal in An Informer v A Chief Constable [2013] Q/B/ 579 in which the Court cited with approval the decisions in Welsh v Chief Constable of Merseyside and Elguzouli-Daf v Commissioner of Police of the Metropolis and the Crown Prosecution Service.

Toulson LJ held:

96. A third category case where the Hill principle does not apply is where there is a special relationship between the parties, or, more specifically, an assumption of responsibility by the police to the Claimant. 

97. Lord Brown in Van Colle considered that Swinney v Chief Constable of Northumbria Police Force [1997] QB 464, considered  below, provided an example of such a case.  Moreover, in Van Colle, Lord Hope referred to the fact that Swinney had been distinguished by Lord Hamilton in Gibson v Orr, and accepted that it fell outside the Hill principle (page 623A).  The other members of the House, apart from Lord Bingham, agreed with Lord Hope. 

98. An assumption of responsibility could also exist where the police take control of a situation, as where they hold a person in detention in a police cell. 

99. An assumption of responsibility may be by express words.  In the analogous field of the liability of the Crown Prosecution Service (“CPS”) to a defendant in a criminal case, this is established by Welsh v Chief Constable of Merseyside Police, to which Pill LJ refers at paragraph 139 of his judgment.  Lord Brown also refers to Welsh at paragraph 135 of his speech in Van Colle.  Welsh was itself distinguished by this court in Elguzouli-Daf v Commission of Police for the Metropolis [1995] QB 335. This also concerned the question whether the CPS owed a duty of care to a defendant in the conduct of the prosecution to convey matters to the court.  This court recognised that a duty could arise if the CPS had voluntarily assumed responsibility to the plaintiff.  In Welsh, Tudor Evans J held that there had been an express assumption of responsibility. 

100. The courts may also find an assumption of responsibility on an evaluation of the facts:  see the authorities cited by Pill LJ at paragraph 165 and 166 of his judgment.  If there is on the facts a sufficient relationship between the parties, the Hill principle does not apply.

Instances of “assumption of responsibility” are relatively few, but one such case concerned my client, Mr. S.

In May 2011, Mr. S , then 19 years old, was lawfully arrested by officers of Merseyside Police when he was found to be in possession of a small amount of Cannabis, a controlled drug of Class B, in contravention of the Misuse of Drugs Act 1971.

Mr. S was taken to his local Police Station where he was lawfully detained.

A short while later, Mr. S was charged as follows:

                ‘On 10/05/2011 you had in your  possession a small quantity of Cannabis, a controlled drug of Class B in contravention of section 5(1) of the Misuse of Drugs Act 1971’.

Immediately after charge Mr. S was bailed on condition that he surrender to the custody of his local Magistrates’ Court on 27 May 2010.

On the 25 May 2011, the CPS sent an email to Merseyside Police in the following terms;

‘Please see attached conditional caution authority.  Please can you arrange an appointment with the Defendant?  I note his phone number is on the charge sheet.  If this can be done prior to first appearance please sent confirmation ……..  The case can then be withdrawn at court without the need for the defendant to attend.  He is due in court on 27 May.  Otherwise the case will be adjourned for two weeks for this to be done.

Many thanks

[redacted name]

CPS Merseyside’.

On 26 May 2011 an officer of Merseyside Police attended Mr. S’s home address and advised him to attend his local Police Station in order to accept a caution and thereby avoid the need to surrender to the custody of the Court on the following day.

Mr. S as requested, attended at the Police Station where he was issued  with a conditional caution and was informed that he was no longer required to attend the Magistrates’ Court on 27 May 2011.

Mr. S’s custody record was then indorsed by Sergeant J.D. as follows:

                ‘D/P attends stn and is issued with cond caution as per CPS. All relevant forms signed and issued.  CPS, CJU and CMU informed’.

Sergeant J.D. at 15.37h on 26 May 2011 sent an email to the CPS as follows;

                ‘Mr. S has now been cond cautioned as req, PNC has been updated.  Please see below for signed docs.

                Cheers JD’.

Mr. S understandably relied upon the fact  that he had accepted the caution with the effect that the prosecution against him was withdrawn.  He therefore did not attend the Magistrates’ Court on 27 May 2011, having been assured by Merseyside Police that, in accordance with the email set out above, he did not need to attend.

On 27 May 2011 following Mr. S’s non-attendance, the CPS advocate in Court failed to inform the Court that the caution had been administered and the case against Mr. S. withdrawn.  No information was before the Court to confirm that the caution had been administered.

The CPS advocate instead at 12.05h asked the Court to issue a warrant not backed for bail for Mr. S’s arrest, which it did.  The Court register confirmed that the warrant for arrest without bail was issued on the following basis: ‘no appearance to answer to bail’.

The said warrant was then executed upon Mr. S at around 18.35h on 27 May 2011 by an officer of Merseyside Police who arrested him under no authority other than that provided by the warrant.

Mr. S was taken to his local Police Station where he arrived at approximately 18.50h and his detention was authorised at 19.02h ‘for the purpose of Warrant (no bail)’.

Mr. S was kept in overnight before production at the Court the next morning.

Mr. S explained  that he had already been cautioned for the offence of possession of Cannabis and  had been told that as a consequence the case against him had been withdrawn.  The Court Register confirmed that Mr. S was then granted unconditional bail until 6 June 2011 for the CPS to make enquiries.

On 6 June 2011 the Claimant returned to Court and after some 30 minutes, he was advised that a mistake had been made and he was released.

Given those circumstances, I was of the opinion that the CPS had “assumed a responsibility” towards Mr. S and were therefore negligent.  I argued that:

• A duty of care in negligence existed because the CPS had assumed a particular responsibility towards M. S when by an email on 25 May 2011 it had requested Merseyside Police to administer a caution to Mr. S upon which it undertook to withdraw the case against him or, alternatively, because it would inevitably follow from the administration of the caution that the case against Mr. S would be withdrawn;
• The CPS was (by the email from Sergeant J.D. on 26 May 2011) informed that the caution had been administered as requested.  The said caution was administered that day;
• The CPS was in the circumstances under a duty on the morning of 27 May 2011 to take reasonable steps to update the Police National Computer, and/or to inform its advocates and/or representatives and the Court that:

1. the caution had been administered such that the case was withdrawn;
2. Mr. S need not attend Court;
3. the Court was not seized of any offence in respect of Mr. S.

• The CPS failed to take any such reasonable steps and therefore breached the aforementioned duty;
• The CPS further breached the said duty when it caused the Court to issue a warrant for Mr. S’s arrest, which warrant caused Merseyside Police to arrest and detain Mr. S and to bring him  before the Court on 28 May 2011.

As a result of the said failure, Mr. S suffered loss and damage specifically; loss of liberty from the time of the execution of the arrest warrant at around 18.35h on 27 May 2011 until the time of his release from the custody of the Court on the morning of 28 May 2011, a total time of approximately 16 hours  and a further period of loss of liberty when he was obliged to surrender to the custody of the Court on 6 June 2011 for some 30 minutes.

Of course, the CPS disputed the claim and denied the assumption of responsibility and negligence.

Nonetheless I was satisfied with my assessment.  On my advice, Mr. S issued proceedings. The CPS maintained its denial and the case was eventually fixed for trial.

This was an exceptional but by no means unique case and I was adamant that a duty of care did exist because the CPS had assumed responsibility to Mr. S ‘by express words’.  Moreover, per Welsh and Eguzouli-Daf, that duty was to take all reasonable steps to convey information to the Court.  There was plainly here a ‘sufficient relationship between the parties’.

The facts in Welsh v Chief Constable of Merseyside Police [1993] 1 All ER 693 were strikingly similar: the CPS had agreed to certain offences being taken into consideration when the claimant was before the Crown Court, but then failed to relay that information to the Magistrates’ Court who had been dealing with him for those offences, resulting in him being taken into custody.

The Court of Appeal’s discussion of Welsh in Elguzouli-Daf [1995] Q.B. 335 was also useful.

‘The judge approached the matter on the basis that the CPS assumed by conduct a responsibility to keep the Magistrates’ Court informed as to the fact that the offences had been taken into consideration’.

The existence and nature of the duty of care in Mr. S’s claim was abundantly clear from the contemporaneous documentation:

(i)                  The CPS by email asked Merseyside Police to administer a caution to Mr. S on the explicit basis that if he accepted the same the case against Mr. S would be withdrawn at Court and he would therefore not have to surrender to the Magistrates’ Court the following day, or on any other date;

(ii)                An officer visited Mr. S’s home address to confirm this and Mr. S promptly attended the police station where the above position was again confirmed and the caution accepted.

(iii)               Sergeant JD of Merseyside Police endorsed the Custody Record confirming that the caution had been issued ‘as per CPS’ which, confirmed, if further confirmation were needed, that it was the CPS  who had taken the decision to offer to Mr. S a caution which would obviate the need to surrender to the custody of the Court, as per the email set out above;

(iv)              Sergeant D then indicated on the Custody Record ‘All relevant forms signed and issued.  CPS, CJU and CMU informed’.  The CPS did not deny that it was indeed informed that the caution had been issued.

The existence of the duty of care here was therefore manifest: the CPS had sent an email assuming a particular responsibility to Mr. S and Merseyside Police acted on the CPS’s behalf in communicating that Mr. S need not attend Court because the case against him was withdrawn upon his acceptance of the caution  on 26 May 2011.

Accordingly the duty of care imposed an obligation upon the CPS to inform its own advocate at South Sefton Magistrates’  Court on 27 May 2011 and also the Court that it had discontinued the case against Mr. S the previous day.

I assume that the CPS eventually realised the force of my argument ,as shortly before trial, I am pleased to report that the CPS agreed, albeit without a formal admission of liability, a substantial settlement.

As stated by Lord Justice Pill in  An Informer the “Hill principle” does not give the Police nor the CPS a “carte blanche” to mislead the Court.

There should be no expectation that the police or CPS can hide behind an ‘immunity’ from negligence claims in cases where they have not merely been careless or slow in progressing a case or evaluating evidence but were they have actively caused a person’s imprisonment by way of an obvious error.

I was recently asked to take on a case for a Polish man living in London, Mr Kendziorski.  He’d been arrested on a European Arrest Warrant and held for just under a day and then granted bail with onerous conditions that lasted nearly 2 months before being advised that his arrest had been “a mistake”.

In June 2012, the Regional Court in Warsaw had issued a European Arrest Warrant, arising from the conviction of Mr Kendziorski on the 9 May 2006 for criminal offences.

In February 2013, the Serious Organised Crime Agency (now the National Crime Agency) certified the European Arrest Warrant, under Section 2 of the Extradition Act 2003.

In May 2013, Mr Kendziorski was arrested by Thames Valley Police under the European Arrest Warrant and subsequently detained at his local Police Station.  He appeared in custody at Westminster Magistrates’ Court, whereupon he was granted bail, whilst the extradition proceedings were adjourned to a later date.

In November 2013, the extradition proceedings were formally discharged against Mr Kendziorski under Section 21(2) of the Extradition Act 2003 on the basis that it would be disproportionate to grant the Extradition request when considering the applicability of the Human Rights Act 1998 to Mr K’s circumstances.

On the 20 November 2013, a representative of the National Crime Agency emailed the Regional Court in Warsaw, providing a copy of the Court’s decision and confirmed that no appeal was to be pursued against the decision to discharge extradition proceedings.

As far as Mr Kendziorski was concerned, that was that.  He got on with his life.  Having put his past indiscretion behind him, he was focused on raising his young family and working hard as a self employed builder.

Sadly, because of administrative error, in November 2015, the very same warrant was re-certified by the National Crime Agency and on the 30 March 2016, Mr Kendziorski was arrested for a second time.

Mr Kendziorski was transported to and detained once again at his local Police Station, where his detention was authorised on the basis of the European Arrest Warrant. Mr Kendziorski was held overnight before once again, appearing in custody at Westminster Magistrates’ Court the next day.

During the hearing it was explained to the Court that the proceedings appeared to have been commenced in error, resulting from the re-certification of the same Warrant which had been discharged by the Court on the 12 November 2013. Proceedings were adjourned until the 19 May 2016 and thereafter the 31 May 2016 for the issue to be investigated.

Given the concerns which had been raised as to the lawfulness of the proceedings against Mr Kendziorski, the CPS did not oppose an application made for bail on behalf of Mr Kendziorski, which was granted, subject to the following restrictive conditions:

1. Reside each night at the family address.
2. Curfew between midnight – 04.00h (doorstep monitoring).
3. The surrender of Mr Kendziorski’s passport together with a prohibition on applying for any travel documentation.
4. To report at his local Police Station each Tuesday, Thursday and Saturday between 5.00 – 7.00pm.
5. To ensure that Mr Kendziorski’s mobile telephone was switched on/charged at all times.
6. Not to attend any Port, Airport or International Rail Station.

On the 19 May 2016, the CPS carried out a review of the proceedings and determined that the European Arrest Warrant (certified by the National Crime Agency on the 12 November 2015) was in fact identical to the previous European Arrest Warrant discharged on the 12 November 2013.

The reviewing CPS lawyer contacted and spoke to a representative of the National Crime Agency, who reviewed the National Crime Agency file and conceded that the European Arrest Warrant was indeed identical to the previously  discharged Warrant, that a new European Arrest Warrant had not been issued and that the certification was in error.  The National Crime Agency  therefore did not oppose the CPS decision to apply to discharge the proceedings.

At Court on the 31 May 2016, the proceedings were formally discharged on the basis that no valid certificate was in force.

Mr Kendziorski understandably now wanted restitution for his unlawful arrest and found a firm of solicitors online who pay to be number one in the Google rankings and claim to be experts in such cases.

Sadly, despite claiming to be experts in this specialised area, Mr Kendziorski’s solicitors were fairly clueless as to who might be responsible;  was it the Police who arrested Mr Kendziorski, the National Crime Agency who re-certified the Warrant or the Crown Prosecution Service for prosecuting the warrant?

The solicitors instructed counsel who following review determined that a claim be intimated against the Crown Prosecution Service.  The solicitors accepted this advice and duly sent a letter of claim.

Following investigation, the Crown Prosecution Service (correctly) denied liability maintaining that they had no involvement in the offending Warrant’s re-certification nor in the Warrant’s execution and Mr Kendziorski’s arrest.

Upon review, the solicitors again sought counsel’s advice.  Counsel agreed that the denial by the Crown Prosecution Service was justified and further advised that both the Crown Prosecution Service and the National Crime Agency “are essentially immune from the imposition of a duty of care” and that prospects of success were 50% or less.  In the circumstances the solicitors were no longer willing to act and promptly closed their file leaving Mr Kendziorski ‘up the proverbial creek’.

Mr Kendziorski wasn’t prepared to give up.  He established contact with me following an internet search for an experienced specialist lawyer.  He provided a detailed history.

It was obvious to me that the only agency at fault was the National Crime Agency for it was they who had re-certified the Warrant in error.  But what of the suggestion that the National Crime Agency (and the CPS) were “immune” from liability?

It’s true that when considering a claim for negligence, a Claimant can only succeed if he can establish that a duty of care existed on the facts of the case.  As a general rule, no duty of care is owed by  the NCA/CPS to those prosecuted by those state agencies. This follows from what has come to be known as the ‘Hill principle’ arising from the House of Lords decision in Hill v Chief Constable of West Yorkshire  [1989] AC 53 which established that the police owed no duty of care to individual members of the public for acts whether they be suspects, or potential victims of crime for the way in which an investigation is conducted. Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 confirmed that the argument against imposing a duty of care on the CPS was even stronger because the work of the CPS involved the use of their discretion.  The prosecutors were under a duty to treat defendant’s fairly but it did not follow that defendants should therefore be able to sue them for negligence.  If such a duty were imposed there was a risk that prosecutors would be encumbered by seeking to protect themselves against such claims and valuable time and resources would be wasted.  This principle applies without doubt to the NCA also.  So, in short any claim for negligence was bound to fail.

But, Mr. Kendziorski had  been wronged; a mistake had been made and he had suffered loss.  Was there an alternative remedy?

It struck me that Mr. Kendziorski could bring an action for either false imprisonment or breach of the Human Rights Act.

False imprisonment

The normal test to identify the tortfeasor liable for false imprisonment is to ask who was ‘active in promoting and causing’ the detention.  See Aitken v Bedwell (1827) Mood & M 68; Ansell  v Thomas [1947] Crim LR 31, CA.

Here for the purposes of the claim for false imprisonment  it appeared that the NCA was the instigator, promoter and active inciter of Mr Kendziorski’s arrest and imprisonment.  That phrase is taken from the Court of Appeal judgment in Davidson v Chief Constable of North Wales[1994] 2 All E.R. 597.

It was the NCA who erroneously re-certified the Warrant that led to the issue of the Warrant and Mr. Kendziorski’s arrest and therefore the NCA who had instigated Mr. ’Kendziorskis  imprisonment which lacked lawful justification and was therefore tortious.

Breach of Human Rights

I was also of the view that Mr Kendziorski might also have a claim for breach of the Human Rights Act 1998 (specifically his right to liberty under Article 5 and right to privacy and family life under Article 8 of the European Convention on Human Rights (“ECHR”).

It is unlawful for a public authority to act in a way which is incompatible  with rights which arise under the ECHR (section 6(1) of the Human Rights Act 1998). The victim of such an alleged  unlawful act may bring proceedings against the relevant public authority (section 7 of the 1998 Act).

Article 5 ECHR

Article 5 ECHR protects the right to liberty and security of the person, and holds that no-one shall be deprived of his liberty “save in accordance with a procedure prescribed by law”.  Article 5(4) states that everyone who is deprived of his liberty by arrest or detention is entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Article 5(5) states that everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

The case of Zenati v Commissioner of Police of the Metropolis [2005] EWCA Civ 80 is helpful in confirming that a person who has been deprived of liberty can bring a successful claim for damages for breach of Article 5, even where he cannot under the English Common Law either –

(a)    bring a claim for False Imprisonment because his detention has been carried out pursuant to a warrant issued by a Judge;  nor

(b)   bring a claim in negligence because of the absence of an established duty of care (indeed the positive and repeated assertions of the Court that there is no duty of care owed in the circumstances – as per Hill and Elguzouli- Daf cited above)

As Lord Dyson said in his judgment in the Zenati case (para 50) “It is well established  that where an imprisonment is effected through judicial proceedings, liability for false imprisonment virtually disappears”.

In Zenati, the Claimant had been detained on suspicion of having a forged passport, and was remanded in custody by the Magistrates Court. At the time of his arrest there was reasonable suspicion he had committed the offence, and the subsequent authorisation of his detention by the Court removed his right to sue for False Imprisonment even when the following events occurred – The National Document Fraud Unit (NDFU) established that the passport was in fact genuine on 19 January, but the Police failed to pass this information on to the CPS until 9 February (whereupon Mr Zenati was immediately released from custody).

Lord Dyson held that whilst Mr Zenati could not bring a claim for False Imprisonment (because the Court had authorised his detention, innocently unaware of the true state of the facts) he did have an arguable claim under ECHR  5.1(c) – that once it was known to the Police that lawful grounds for a person’s continued detention no longer exist, it is incumbent on them to obtain that person’s release as soon as possible – and also under ECHR 5.3 – that in failing to promptly convey the crucial evidence to the CPS and the Court, the Police were responsible for breaching Mr Zenati’s right to have his case investigated and processed with “special diligence” i.e without unnecessary delay.

In respect of the claim under 5.3 Lord Dyson even felt that Mr Zenati had an arguable claim relating to the period of his detention prior to 19 January, on the basis that the CPS were too slow to request a forensic examination of the passport between 10 – 31 December and/or that the Police were then too slow in referring the passport to the NDFU for examination between 31 December – 13 January.

As Lord Dyson concluded “In all the circumstances, I consider that it is arguable that the Claimant was in custody for an unreasonably long time as a result of the dilatory conduct of the CPS and the police”.

Interestingly, it appears that the result in Elguzouli-Daf may well have been different, had the Claimant in that case been able to present his case as a breach of the ECHR rather than just in negligence – but of course it predated the Human Rights Act 1998 which incorporated the ECHR into UK law.

Article 8 ECHR

Article 8 of the European Convention on Human Rights 1950 (“ECHR”) provides (emphasis added):

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. 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 wellbeing 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 freedom of others.

In this case, Mr Kendziorski as well as being deprived of his liberty also of course had his right to free and full enjoyment of his family life infringed with by his detention overnight in Police custody and the onerous bail conditions then imposed upon him.

In the case of Keegan v UK (2007) 44 EHRR 33  the European Court of Human Rights held that a family’s Article 8 right had been infringed by a Police raid on their home because the Police had failed to make proper enquiries to establish if the person they were looking for still resided at that address (the Keegans had in fact moved in 6 months previous to the raid).

Once again, therefore ECHR rights were utilised to allow for a claim to proceed where, under the Common Law alone, there would have been no right to sue in negligence or for trespass (the latter because the search was carried out in accordance with a warrant of the court).

Arguably, if the NCA had taken reasonable precautions to check whether the warrant should have been re-certified in this case, the unjustified infringement of Mr ’Kendziorskis Article 8 rights could have been avoided.

Breach

In Mr. Kendziorski’s case the fact that the European Arrest Warrant was erroneously re-certified meant that there were no legitimate extradition proceedings in place.

In the circumstances of Mr. Kendziorski’s case, by failing to check (properly or at all) whether or not the warrant should in fact have been re-certified, the NCA failed to act with due diligence or to take reasonable precautions to ensure that Mr. Kendziorski’s rights under Article 5 and 8 ECHR were not infringed.

Mr. Kendziorski’s detention and the bail conditions he was subjected to were therefore, in my opinion, not in accordance with the law, and in breach of his rights as protected by Articles 5 and 8 ECHR.

In the circumstances, I was satisfied that Mr. Kendziorski had a good claim.  Fortunately, Mr. Kendziorski had approached me just in time.  I immediately issued protective proceedings because of the tight Human Rights limitation period (I year less 1 day).  I then intimated a claim against the NCA who soon enough recognised the strength of Mr. Kendziorski’s case and admitted liability for both False Imprisonment and breach of the  ECHR.  Following negotiations, I settled Mr. Kendziorski’s claim for £11,500.00 plus costs and ensured settlement was on the basis that the NCA system was updated to reflect that any EAW issued against Mr. Kendziorski had been discharged and that he was therefore no longer at risk of any wrongful arrest.

To conclude, yes you can sue the National Crime Agency but this case demonstrates what a complex area of the law this is, and the importance of obtaining the right specialist legal advice from an experienced practitioner such as myself from the outset.  Mr Kendziorski’s original solicitors had effectively been ‘scared off’ his case because they only half understood the law.  They were correct to recognise the immunity from a negligence suit which applied to the NCA  but they failed to see the strong alternative bases for his claim in the tort of False Imprisonment and under the Human Rights Act.

Thankfully, Mr Kendziorski came to me just in time, and I was able to ensure that justice was done.  If you feel you may have a claim against the National Crime Agency, please contact me for advice.

My client’s name has been changed.

An Englishman’s home is his castle goes the old saying, enshrined in law by the judgment of Lord Camden (who probably did live in a castle) in the 1765 case of Entick v Carrington: 

Every invasion of private property, be it ever so minute, is a trespass. No man can set foot upon my ground without my licence, but he is liable to an action though the damage be nothing.

Of course, there was an important qualification to this, in the words of Lord Camden –  “Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good” – or in other words, the right of legitimate agents of the State, principally bailiffs and police officers to enter private property in a number of situations which are carefully limited and controlled by the law.

What rights do bailiffs have to enter your home ?

The starting point for Bailiffs (whose correct legal description following the Tribunals, Courts and Enforcement Act 2007 is “Enforcement Agent” – quite a mouthful of a title replaced a historic but well understood term; I will use the two terms interchangeably in this blog) is that they have a right to peaceful entry of premises only i.e. they cannot force their way in, although they could open and go through an unlocked door.  At the same time there is no obligation on you as the occupier of the premises to let the Bailiff in.

What a Bailiff cannot do (except in certain circumstances which are specified below) is break open a door or window, use a locksmith to pick a lock, or to force their way past someone at a door (the classic bailiff manoeuvre being to try to put their foot in the doorway to prevent the door being closed).

A Bailiff will only have a right to force entry to your home on a first visit if they are there to collect unpaid Magistrates’ Court fines.

Even then –

1.  They are only allowed to use reasonable force  i.e. a locksmith who will unlock the door – not a battering ram!
2. They cannot force their way past you if you are blocking the door (Paragraph 24 (2) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 expressly states that “Power to use force does not include power to use force against persons”)
3. They can only enter through a door, not a window.

On a first visit in respect of enforcement of any of other types of debt however, the Bailiff is simply not allowed to use any force at all, eg –

• Tax arrears
• Credit card/catalogue debts
• Parking fines
• Money owed to Utility Companies (e.g. water, energy or telecoms).

I talk about a ‘first visit’ because if you do allow the Bailiffs into your home and they make an inventory of your belongings and/or you enter into a “Controlled Goods Agreement” (i.e. they agree not to remove your belongings provided you comply with a repayment plan to discharge your debt) then on their return visit the Bailiffs would be able to use reasonable force to gain re-entry to your property, notwithstanding what kind of debt was being recovered.

Visits by Bailiffs are obviously in their nature very stressful and tense affairs, often exacerbated by aggressive actions and behaviour from the Bailiffs, some of whom don’t know the limitations on their powers of entry and others of whom are prepared to abuse those powers in order to ‘bully’ debtors into giving them what they want.

Often, one or both sides to the dispute – the debtor and the Bailiff/Enforcement Agent will call the Police if matters become heated or a ‘stand-off’ occurs.

It is important to understand that the role of the Police is not to automatically side with the Bailiffs. The Police in attending any given situation should have as their priority preventing a Breach of the Peace, but if none is occurring, nor any other crime being committed, it is not their business to get involved.  They are not supposed to function as ‘cavalry’ coming in to back up the Bailiffs and to help them get their job done. As explained above, there are many situations where the Bailiffs may be enforcing a valid warrant for a valid debt but nonetheless still do not have the right to come into your home unless you let them.  Neither they nor the Police have the power to compel you in that situation to open your door and let the Bailiffs in.

It is open to the Bailiff to go back to the Court to seek permission from a Judge to use reasonable force to gain entry if this is denied to them, but as stated above on a first visit there are only a very limited number of situations in which they can resort to force without further permission from the Court.

On the other hand, if a Bailiff is operating within his legitimate powers and a debtor or other occupier of the premises obstructs them from carrying out their job then that can amount to a criminal offence in accordance with Paragraph 68 of Schedule 12 of the Tribunals Court and Enforcement Act 2007 (which codifies the law in regards to the powers of Enforcement Agents in England and Wales, as referred to above).

The question of course, as to whether the Bailiffs are acting within the boundaries of the law, and therefore whether your ‘obstruction’ of them is unlawful or not is the key question – a question often, in my experience, incorrectly answered by Police Officers who have attended at the scene under the mistaken apprehension that they are there as the Bailiffs’ ‘big brothers’.

And it is a question which was very much at the heart of a case I recently concluded on behalf of my client Harry Bush (name changed).

Unlawfully arrested for refusing entry to Bailiffs

Mr Bush instructed me to bring a  claim for compensation against Sussex Police as a result of the following incident.

On the evening of the 25 July 2015 my client made an emergency call to Sussex Police to report that Bailiffs were attempting to unlawfully enter his home address in Eastbourne in order to execute a High Court Order (Writ of Control).  It is understood that at about the same time one of the Bailiffs, a certified Enforcement Agent, Mr Neckett also contacted the Police requesting their assistance to enforce the Writ of Control.

The Writ of Control in question related to a debt owed by Mr. Bush to South East Water – and hence, it will be noted, was one of those types of debt in relation to which Bailiffs/Enforcement Agents do not have an automatic right to force entry to a person’s premises.

Furthermore, Mr. Bush had on the 1 July 2015 agreed a 30 day suspension of any enforcement action against him with the Bailiff Company.

Notwithstanding the fact that he had been given this ‘period of grace’ in which to arrange payment, and which should have took him up until the 31 July, two Bailiffs attended at his premises on the 25 July, only one of whom – Mr. Neckett was a certified Enforcement Agent.

My client explained to Mr. Neckett and his colleague that it had been agreed that enforcement action would be suspended against him until at least the 31 July, but not withstanding this Mr. Neckett insisted on being allowed into his premises. Hence the telephone call from my client to Sussex Police.

As Mr. Bush subsequently attempted to exercise his right to close his front door to the Bailiffs, Mr. Neckett’s assistant Mr. Ball wedged his foot across the threshold, thereby preventing closure of the door.

This use of force by one of the Bailiffs to prevent the door being closed was doubly unlawful, as explained above, in relation to the nature of the debt which the Bailiffs were seeking to enforce. They had neither the right to use force against the door, nor any person present (in this case Mr Bush, who was trying to close the door). The Bailiffs should not have done it.  Mr. Bush was entirely within his rights to close the door to them and not to allow them on the premises if he chose not to.

Nevertheless (though probably unsurprisingly) when four Officers from Sussex Police then attended at the scene, they immediately took the side of the Bailiffs.

When the Officers arrived, Mr. Bush was still standing in the doorway, only being prevented from closing the door by Mr. Ball’s foot.  As explained above, the Bailiff did not in fact have a legal foot to stand on (shall we say) but the Police chose to overlook this. I would suspect this is because of the Police Officers’ ignorance of the law surrounding the rights of Enforcement Agents and (probably of equal importance) their natural inclination to side with the Bailiffs against the debtor.

My client explained to the Police Officers that the Writ was supposed to be on hold for 30 days, but was ignored.

Furthermore, and in any event, my client  asserted the right that he knew he could refuse entry to the Bailiff if he chose to do so. His conversation with the Police officers about this was recorded on one of the officer’s body cam, and throughout the conversation Mr Bush comes across as calm and entirely reasonable; he does not shout or behave in any way aggressively. He simply asserts the law which governs Bailiffs and which he fully understood – but which sadly, no one else present apparently did.

This resulted in a bizarre exchange in which one of the Police officers accepted that the Bailiffs had no right to force their way in – but then asserted that if Mr Bush did not let them in, he would be arrested.

Indeed, one of the officers  then stated that he was arresting Mr. Bush for obstructing an Enforcement Agent (contrary to paragraph 68 of Schedule 12 of the Tribunals Court and Enforcement Act 2007).

The relevant provision states –

A person is guilty of an offence if he intentionally instructs a person lawfully acting as an Enforcement Agent.

Here of course, either overlooked or disregarded by the Police Officers, was the fact that the Enforcement Agents were not acting lawfully because they had attempted to use force to enter the premises, by way of placing a foot in the door. Furthermore, at the moment Mr Bush was arrested, the Bailiffs were standing outside the property, with no right to enter, and he could not therefore have obstructed them.

Sadly, the Bailiffs had overstepped their powers in using force to keep the door open, and now the Police Officers were overstepping their own powers in arresting Mr. Bush without an actual offence having been committed.

On a side note – but one which is not unimportant – the arresting officer handcuffed my client as soon as he arrested him despite no physical resistance being offered. All force including handcuffs must be proportionate to the situation, and Mr Bush’s calm and reasonable demeanour in no way justified tying his hands behind his back.

Whilst in handcuffs, Mr Bush tried again to make the arresting officer understand the law asserting “He [the Bailiff] doesn’t have the right to enter my house without me letting him in”. To this the arresting officer  again agreed that the Bailiff’s warrant doesn’t give an automatic right to enter Mr Bush’s house without his permission, which begs the following question as asked by my client “Then why did you let them in?” (With the doorway now clear because Mr Bush had been handcuffed and taken into the living room by the Police, the Bailiffs had come into the house). The officer’s reply (which you almost couldn’t make up) was “Because you’re obstructing them from doing their job”!

In other words- the officer was agreeing that the Bailiffs had no right to enter without permission, but then asserting that if  permission was refused, a criminal offence would be committed – which of course is exactly the same as saying the Bailiffs did have a right to enter without permission. With respect, it should have been blindingly obvious to the officer that what he was saying made no sense, something the officer perhaps reflected on when he then asked Mr Bush to stop asking him questions.

The arresting officer’s female colleague then offered her own interpretation of the law, telling Mr Bush the following –

“If they [the Bailiffs] can’t get in – they call us [see what I mean about Police Officers thinking they’re there as ‘reinforcements’ for the Bailiffs?] – we act to prevent a Breach of the Peace [at no point was Mr Bush ever arrested for Breach of the Peace] – and if you obstruct them we have legislation which entitles us to arrest you.”

Quite a jumble of misunderstood sections of the law, to which I would like to echo Mr Bush’s reply at this point to the officer –

“I’m really, really sorry but you’re wrong”.

My client was taken from his home in handcuffs to Eastbourne Police Station and there processed, including having to provide his fingerprints and a DNA sample.

He was held in a locked cell, interviewed under caution and not released until 2.35am the following morning after over 6 hours in Police detention.

Initially Mr. Bush was released on Police Bail, but on 2 September 2015 he was notified by the Police that they would not be proceeding with any charges against him.

Quite rightly upset by what had been done to him, my client submitted a formal complaint against the Officers who had dealt with his arrest, a complaint which he lodged on the very day he was released from custody.  The complaint outcome was that management action was taken against each of the Officers who had attended the scene.

Furthermore,  Mr. Bush pursued a complaint against the Bailiff Company,   who after investigation confirmed that his account should have been recorded as suspended for a period of 30 days from 1 July, but had in fact been suspended for unknown reasons for a period of 7 days only, and he was offered a written apology from the company in this regard.

In my opinion, however, the key point on which this case turned was not the failure of the Bailiff’s company to properly record the agreement they had entered into with Mr. Bush, but the failure of the Bailiffs to comply with the law, i.e. their unlawful use of force and the subsequent failure of the Police Officers to understand the illegality of the Bailiffs’ behaviour. The prevailing confusion which was evident amongst the Officers at the scene of the arrest as to what rights the Bailiffs had, and what conduct by the homeowner amounted to a criminal offence, was also apparent during the wider Police investigation in the weeks following Mr Bush’s arrest – the investigating officer  having to resort to an internet search, excerpting quotes from public advice websites, to find out what powers of entry Enforcement Agents had! It is really quite shocking that Police officers apparently routinely arrest people for ‘offences’ committed in relation to a law which they apparently haven’t been given the training to properly understand. Personally, I don’t think we should be conducting law enforcement by ‘Google’ search.

The Police Officer investigating Mr. Bush’s case, increasingly concerned that in fact no crime had been committed, eventually reached the following conclusion which is recorded in an Investigation Log entry dated 8 August 2015 –

Internet research has highlighted a common theme/issue when the EO’s put a foot over the threshold. This then enters the arena of ‘forced entry’ and an EO is not entitled to force entry to residential premises (they can however if dealing with a commercial property).  Rai and Rai v Birmingham City Council 1993 held that a boot in the door was illegal.  Essentially this act of putting a foot in the door is known as a ‘threshold manoeuvre’ and since 2008 this is not a recognised/lawful technique.

As I have stated above, the ‘foot in the door’ manoeuvre is also illegal contrary to Para 24(2), Schedule 12, of the Tribunals, Courts and Enforcement Act 2007.

The Investigating Officer also appears to have, albeit somewhat belatedly, taken into account the fact that on the evidence available, the force was only coming in one direction i.e. from the Bailiffs trying to force their way into the property, and the only ‘threat’ that my client could have been said to have made was his ‘threat’ to call the Police.  Other than this, his refusal to grant the Bailiffs peaceable entry onto the property, and his argumentative but not threatening stance in regards to what he honestly believed to be a ‘suspended’ Enforcement Writ, could hardly be said to constitute obstruction of the Enforcement Agent’s lawful powers. Hence the decision not to prosecute my client, which was very welcome, but had sadly been preceded by all the unnecessary stress, time and expense of his arrest and imprisonment at the Police Station beforehand.

On the basis of the above I brought a claim for compensation for false imprisonment and assault (principally in regards to the unnecessary application of handcuffs to Mr. Bush, and the psychological effect which his incarceration had had upon him) in response to which Sussex Police accepted that they had unlawfully arrested Mr. Bush and that the placing of handcuffs upon him amounted to an assault.

After I had commissioned medical evidence on behalf of my client I was eventually able to negotiate a settlement for him in the sum of £9,000 plus legal costs.

If you feel you have been unlawfully arrested during a dispute with Bailiffs then please contact me for advice.  As you can see, it is not only the Bailiffs themselves but often the Police Officers called upon to keep the peace who do not know or fully understand the law in this area, leading to the heavy-handed treatment and unlawful arrest of people that simply try to stand up for their civil rights.

 

In my last post, I explained that there are strict time limits in which an individual can bring a claim.

I explained that of relevance to Police claims, the limitation period for claims for false imprisonment, assault and/or battery, trespass, malicious prosecution and/or misfeasance in public office is 6 years, or 3 years if personal injury is claimed (unless the Claimant is a child or a patient being treated under the Mental Health Act 1983).

Although the general limitation of 6 years is set in stone, if the Claimant pursues a claim for personal injury, section 33 of Limitation Act 1980 allows for an extension of the three-year time limit in circumstances where the court considers it equitable, having regard to the degree to which the Claimant is or would be prejudiced and the degree to which the Defendant would be prejudiced. In determining whether to disapply the limitation period, the court must have regard to all of the circumstances of the case and in particular to the length of and reasons for the delay, the extent to which the evidence adduced or likely to be adduced is or is likely to be less cogent, the conduct of the Defendant after the cause of action arose, including the extent to which the Defendant responded to requests reasonably made by the Claimant for information or disclosure relevant to the cause of action, the duration of any disability of the Claimant arising after the date of the accrual of the cause of action, the extent to which the Claimant acted promptly and reasonably once he knew that the act or omission of the Defendant might be capable of giving rise to a cause of action and the steps taken by the Claimant to obtain medical, legal or other expert advice and the nature of any advice received. In summary, we might call this a ‘common sense’ get- out clause, designed to operate in the interest of fairness.

Limitation operates as a defence to proceedings, not an absolute bar.  Therefore, if the Defendant failed to plead a limitation defence, limitation would not be an issue in the proceedings between the Claimant and the Defendant.  However, as I’ve pointed out elsewhere in my blog, Police Defence Lawyers will usually take any point available to them so rest assured, if there’s an issue to raise, the Police will raise it.

A case in point is that of my client Charles Quichaud. Back in August 2009, Charles, then aged 19 and a French national, came to visit his brother who was then living and working in London.

Charles stayed for 3 weeks, hanging out with his brother and sightseeing in the city. On the day before he was due to return home, Charles met up with some friends.  They gathered in the park at Hoxton Square where they chatted and relaxed on the grass and benches for a few hours. There were no public toilets nearby, so Charles and his friends would discretely use the bushes to urinate. Unfortunately, Charles was spotted by two passing police officers. The Officers approached him. He was afraid and fled to a nearby bar where PC Caulfield followed him for a short time. He managed to evade the officer but when he later returned to the park, the officers were waiting. Fearing the worst, he began running to the park exit. PC Caulfield chased him down a dead end, forced him to the ground, and rained kicks and blows to his face and head. Charles did not fight back and tried to protect himself in the foetal position.

The attacking police officer broke Charles’ nose in the assault, left him with cuts around his right eye, and bruises to his face and body. The officer was uninjured.

Charles was handcuffed, but not formally arrested, and taken by ambulance to University College Hospital, where doctors diagnosed the fracture, stitched and glued his eye injury, and dressed his wounds.

The following day Charles went to Shoreditch Police Station where he was issued with a Fixed Penalty Notice for breaching Section 5 of the Public Order Act (1986).

While waiting at the Station, Charles says that he overheard a Sergeant advise the officer who assaulted him to “just cover your arse”. The arresting officer then completed an Evidence and Actions Book with a false account of the incident, which was not date stamped as required under standard procedure.

PC Caulfield’s female colleague was accused of writing a false account in which she claimed that a group of women ‘complained about the male who was urinating’.

Charles’ brother paid the Fixed Penalty Notice on his behalf, leaving Charles with a criminal record.

Charles returned home to France where he had an operation to repair the fracture on his nose. Unfortunately, the surgery was only partially successful in that Charles’ nose remained deviated to the left causing difficulties breathing. He was also left with facial scars and understandable low mood as a result of both the incident and his altered appearance.

A concerned member of the public reported the incident to the IPCC who took the unusual step of handling the investigation themselves. The IPCC investigators were unimpressed  with the officers’ accounts and found that both officers had a case to answer for gross misconduct. First however, the IPCC passed the case to the CPS who decided to prosecute PC Caulfield for assault occasioning actual bodily harm. PC Caulfield pleaded not guilty, claiming that he acted in self defence. The case proceeded to trial in June 2011 at which time the jury failed to reach a verdict. PC Caulfield then faced a re-trial in November 2011 at which he was acquitted. Misconduct proceedings were then brought against PC Caulfield and at the subsequent tribunal hearing held in February 2013, PC Caulfield was sacked for using “unnecessary, disproportionate and unreasonable” force when arresting Charles and recording a “false, misleading and inaccurate” account of the incident in his notebook. PC Caulfield’s female colleague was issued with a written warning.

Throughout this saga, Charles cooperated with the IPCC, the CPS and the Metropolitan Police.

Charles was advised by the IPCC caseworker to pursue a claim for compensation.  Charles initially consulted the Criminal Defence Solicitors who had advised him at the Police Station the day after his arrest. They had an ‘Actions against the Police’ Department and referred the case. By this time, Charles was back in London and working as a waiter. Although he was on a low income, his wage varied because of tips. His solicitors advised that he apply for Legal Aid but he soon found that both they and the Legal Aid Agency put unnecessary obstacles in his path when in reality, they should have just got on with his case. In October 2013, 14 months after the 3 year limitation period had expired, Charles contacted me following an internet search which had led him to my blog; he was impressed with my experience and proactive approach to claims like his.

On the basis of his instructions, I was satisfied that he had a claim for assault and battery, false imprisonment and misfeasance in public office including a claim for personal injury caused thereby and that prospects were good.  But although his claims for false imprisonment and misfeasance in public office were still in time (6 years), his claim for personal injury (3 years) was not. In fact, he was nearly 1 ½ years out of time.

In this situation, the best course of action is to issue immediately and so, within a few days of instruction, I issued protective court proceedings on behalf of Charles.

At this time, I had the IPCC investigation report and a series of online news reports about his case only. This was enough to identify the key issues and draft and submit a letter of claim.

The Metropolitan Police adopted their standard litigation tactics;

First, they ignored their obligations to respond to the claim within the protocol period set by the Civil Procedure Rules. In the circumstances, I was obliged to force the issue and serve court proceedings.

Second, they denied liability. They filed an Acknowledgement of Service and confirmed that they intended to defend “all of this claim”. They followed this with their “Defence”, a bare denial of liability of each head of claim save this;

“The Claimant’s claim for assault causing personal injury is subject to a 3 year limitation period pursuant to section 11 of the Limitation Act 1980.  The limitation period in respect of the assault claim expired on the 27 August 2012.  The Claim Form in this action was issued on the 1 November 2013, approximately 14 months out of time.  Accordingly, the Claimant’s claim for assault and personal injury should be struck out on limitation grounds”.

In the absence of settlement, a Court would have to make a determination as to whether to disapply the limitation period in respect of the claim for personal injuries.

I was convinced that the court would exercise its discretion pursuant to Section 33 of the Limitation Act 1980 for the following reasons;

1. The length of delay was 14 months. Charles was a naive young man and a French national.  He had lodged a complaint himself, and he had fully cooperated with the Defendant, the IPCC and CPS in their investigations and the prosecution and misconduct proceedings.

2. The Defendant had not been significantly prejudiced by the delay, particularly given that the incident had been the subject of an extensive investigation by the IPCC who had submitted a report in April 2010 and all evidence had been preserved.

3. There was no reason to believe that the evidence available was likely to be less cogent.

4. The evidence relevant to the assault/battery claim would be very substantially the same evidence to be heard in the claim for false imprisonment and misfeasance. In the circumstances, there would be no detriment in permitting the claim for assault/battery to proceed: the case would proceed to trial anyway given that the other torts under which the Claimant claimed, were governed by a 6 year limitation period.

5. The issues in the proposed claim for assault/battery involved alleged abuse of power by a public authority. Such issues were of legitimate public concern as highlighted by the second criminal trial and the Misconduct hearing.

6. Applying the decision of  Smith LJ in Cain v Francis, it would  undoubtedly have been “fair and just in all the circumstances” to allow the claim to proceed to be defended on the merits.

Notwithstanding their denial of liability, the Metropolitan Police quickly made it clear (and understandably so) that this was a case that they wanted to settle albeit on a without prejudice basis.  Following extensive negotiations, I am pleased to report that Charles’ claim settled for a substantial award of damages. However had settlement not been achieved, I am satisfied that the court would have agreed to disapply the limitation defence in respect of the personal injury claim.

Another case in which the Police raised a Limitation defence against one of my clients, was that of Hayley Cunningham v the British Transport Police – a case about which I have previously blogged here.

As I explained in that blog, Hayley was subjected to considerable mental stress and pressure as a result of her unlawful incarceration and the prosecution which was wrongly brought against her and which went all the way to Trial at the Magistrates Court before being dismissed. The effect which this had upon a hard working Mum and dedicated educational professional, with absolutely no previous experience of the custodial and criminal justice system can well be imagined.

Suffering from Post Traumatic Stress Disorder, Hayley was simply unable to contemplate dealing with the claim for a long stretch of time, and therefore did not give me instructions to commence County Court proceedings against the British Transport Police until after the 3 year limitation period for her injury claim had expired. The lawyers acting for BTP sought to take advantage of this (of course) by arguing that Hayley’s claim for physical and psychological injuries was ‘time barred’. I very strongly felt that this was an unjust and cynical move on their part given that it was the emotional impact of the wrongful arrest and prosecution, coupled with BTP’s biased internal investigation and rejection of her (legitimate) complaint, which had left Hayley in this state.

As Baroness Hale observed in the case of A v Hoare [2008] 1 A.C 844 (paragraph 60) the Court must in cases such as this seek to prevent “injustice to a Claimant who may be deprived of his claim…as a result of the very injuries which gave rise to it”.

Another good reason for overturning the limitation bar, as highlighted in the case of Cain v Francis [2008] EWCA Civ 1451 by Smith LJ (at paragraph 74), and certainly applicable to Hayley’s case (as well as that of Charles Quichard) was that “the Defendant knew that a claim was to be made against him and also the opportunities he has had to investigate the claim and collect evidence”.

In both Hayley Cunningham and Charles Quichard’s cases, the respective Defendants – BTP and the Met – had available to them contemporaneous statements and all the other documentary evidence (including CCTV footage in Hayley’s case) accumulated as a result of the criminal prosecution and/or lengthy internal investigation processes. Neither claim came ‘out of the blue’; in neither case was crucial evidence likely to have been lost or distorted by the passage of time.

Accordingly, on receipt of the Defence to Hayley’s claim I promptly issued an application to Court for permission to proceed with her personal injury claim, pursuant to Section 33 of the Limitation Act. My arguments clearly persuaded the Police, as (despite going on to fight Hayley’s overall claim all the way to a fiercely contested Trial) they conceded my application and (quite rightly) dropped the ‘Limitation’ aspect of their defence prior to the Court hearing taking place.

The lesson to take from this is that whilst it is very important to seek legal advice as soon as possible after you have suffered a wrong-doing at the hands of the Police, all is not lost if you have in fact exceeded the 3 year time limit, particularly if there are good reasons for your delay in bringing a claim and/or evidence that the Police Force as an organisation is aware of the circumstances of the wrong-doing against you and has investigated and gathered evidence in relation to it.

The 3 year personal injury limitation date is potentially a very serious obstacle to a claim – but with the right advice and representation, it can be overcome.

 

The law of England and Wales (specifically The Limitation Act 1980) imposes various time limits in which an individual can bring a claim. Once the limitation period has passed, the Defendant can argue that any subsequent claim should be struck out.

The rationale behind the imposition of time limits is to ensure justice is  properly and promptly served; that it would be contrary to public policy if an individual or organisation is perpetually exposed to the threat of litigation for a wrongful act. The theory has it, that with the passage of time, memories fade, evidence can be lost, witnesses are difficult to trace and it is unfair to ‘ambush’ a proposed Defendant with a claim many years, or even decades, after the wrong allegedly occurred.  Most people would agree to the ‘common sense’ basis of this approach; that it is right to require Claimants to ‘get on’ with their claims within a reasonable time frame, and if not, to draw a line under their right to claim, so that everybody has clarity and can ‘move on’ with their lives.

Of relevance to Police claims, the limitation period for claims for false imprisonment, assault and/or battery, trespass, malicious prosecution and/or misfeasance in public office is 6 years, or 3 years if personal injury is claimed (unless the Claimant is a child or a patient being treated under the Mental Health Act 1983).

I am often contacted by clients who have been wronged by the Police sometime in the past but who have for a variety of reasons not yet taken any action.

Irrespective of the facts or merits of the case, the first question I must ask myself therefore is, is the claim in time?

In late October 2016, Mr Bradshaw contacted me having read my regular internet blog.  He had been arrested nearly 6 years earlier and wanted to bring a civil claim against the Police.   The fact of his arrest still rankled him and as a man of hitherto exemplary character he was concerned that his personal data was still retained by the Police.

On 7 October 2010,  Mr Bradshaw had been asked to give a young woman a lift.  He barely knew the woman having only met her on one previous occasion.  As far as Mr Bradshaw was concerned, the journey was uneventful.

Then a month later on the 4 November 2010, Mr Bradshaw  was at home when two Police Officers of the Metropolitan Police attended and requested admittance.

Mr Bradshaw was told that the officers had attended to discuss information regarding the woman.  Mr Bradshaw feared that the Officers were about to deliver unfortunate news about her well- being, however Mr Bradshaw was then told he was under arrest on the basis that the woman had reported to Police that in return for free lifts, Mr Bradshaw had tried to extract sexual services from her.

Mr Bradshaw was searched, manhandled and then escorted to his local Police Station where his detention was authorised.  The Custody Record states that Mr Bradshaw had been arrested for breaching Section 5 of the Public Order Act.

Under Section 5 of the Public Order Act,

 (1) A person is guilty of an offence if he—

(a) uses threatening [or abusive] words or behaviour, or disorderly behaviour, or

(2) An offence under this section may be committed in a public or a private place.

A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1000).

It is self evident that Section 5 will be used in cases which amount to less serious incidents of anti-social behaviour.

The circumstances of Mr Bradshaw’s arrest were said to be that “an allegation [had been] made by female who stated that on 7 October 2010, (Mr Bradshaw) gave her a lift in his car as a minicab.  At the end of the journey (Mr Bradshaw)  is alleged to have said that instead of payment “You can give me a wank”.  This caused alarm and distress to the victim”.

The reason to arrest was said to be “to allow the prompt and effective investigation of the offence or of the conduct of the detained person”.

The reason for detention was said to be to “obtain evidence by questioning” and the grounds for detention were said to be “so the DP can be interviewed on tape regarding the allegation”.   Mr Bradshaw was searched (again) and then obliged to provide a fingerprint and DNA sample before being escorted to a cell and later interviewed.

After over 7 hours in custody,  Mr Bradshaw was released on conditional bail (that he not contact the woman directly or indirectly) and to re-attend on 22 November 2010, while further enquiries were carried out.

On the 15 November 2010,  Mr Bradshaw was contacted by the investigating officer and advised that he would face no further action.

Mr Bradshaw’s first reaction to the news was sheer relief.  Although Mr Bradshaw  disputed the allegation, he recognised that it was his word against the woman’s and that the Police had a duty to investigate alleged crimes and that investigation could include arrest.  Mr Bradshaw however felt wronged and he therefore set about investigating the criteria for a lawful arrest.

Following review, Mr Bradshaw was of a mind that he had an arguable case against the Met for false imprisonment on the basis that he shouldn’t have been arrested but instead dealt with by voluntary interview.

Sadly, at about this time Mr Bradshaw took ill and he did not feel fit enough to pursue a case until  he contacted me nearly 6 years later.

Given the date of arrest, I knew that limitation was about to expire.  Mr Bradshaw had been arrested on 4 November 2010.  Limitation would therefore expire on 4 November 2016.  His claim was therefore in time; but only just.  But I also had to be satisfied that there was merit in his case.  This necessitated an initial assessment as to prospects.  Although I was satisfied that the Police would easily establish that they had reasonable suspicion to arrest, I struggled to see how they would be able to prove that objectively, it was necessary to arrest Mr Bradshaw.

According to the Custody Record, which Mr Bradshaw had applied for and kept, the Police said that the necessity to arrest Mr Bradshaw was to allow the prompt and effective investigation of the offence or the conduct of the detained person.  The offence had occurred about 1 month before.  My client did not know the woman’s name or where she lived.  The allegation, whilst unpleasant, was not of an extremely serious nature.  Mr Bradshaw was easily identifiable and traced. He was compliant and co- operative when approached by the Police. On that basis, why was formal arrest necessary?  To my mind, it simply wasn’t and the arresting Officer had failed to consider if the necessary objectives could have been met by less intrusive means, i.e. voluntary interview.

Following instruction, I therefore immediately issued Court proceedings.  Relevant papers were sent to the Court on 28 October 2016, received by the Court on 31 October 2016 and then issued on the 8 November 2016, so that proceedings were brought in time. (Although the issue date was 8 November, which was after the 6^th anniversary of the arrest on 4 November, the relevant date for the purposes of the Limitation Act is the date on which the papers are received by the Court for issue – in this case, 31 October. This is to allow for the fact that Court backlogs often mean that it is weeks after a Claimant attempts to commence proceedings that the Court staff are able to get around to officially ‘opening’ the case).

Having issued Court proceedings, Mr Bradshaw had 4 months to serve those proceedings.  That gave me sufficient time to finalise my investigations and draft and submit a formal letter of claim.

As is ‘par for the course’, following their own internal investigations, the Metropolitan Police denied liability.

Notwithstanding the denial, I was of the opinion that Mr Bradshaw had reasonable prospects of successfully establishing that his arrest had been unlawful and therefore with Mr Bradshaw’s authority, I served Court proceedings upon the Met.

Mr Bradshaw realised that by serving Court proceedings, he was exposing himself to the risk of a substantial costs order should the claim fail (indeed the Metropolitan Police subsequently advised that they would likely incur costs of around £15,000.00)

The Met filed a Defence and, as is their standard practice, liability was robustly denied.  The case was transferred to Central London County Court.

Mr Bradshaw had been arrested and detained for only a few hours.  Notwithstanding their denial, the Met Police subsequently offered to settle his claim for £1,250.00.  Mr Bradshaw accepted. In truth, his claim wasn’t worth much in monetary terms. But financial compensation was not of significance to Mr Bradshaw.  What was far more important was vindication and a sense of justice restored.

The fact of settlement will now greatly assist Mr Bradshaw in his efforts to have his personal details and data deleted from Police Record Systems.

Mr Bradshaw had approached me in the nick of time. In another 2 weeks he would have been too late to bring a claim. Furthermore Mr Bradshaw was able to rely upon my expertise and judgment. Many firms have a strict code which prevents them from taking on cases where limitation will expire within the next 6 – 12 months which means that perfectly meritorious claims are rejected and not pursued. I however always adopt a flexible approach, and assess each individual case on its own merits, no matter how close it is to the limitation ‘cut off point’.

Indeed, I have, when appropriate, taken on and won  cases which have actually passed the 3 year limitation period for incidents of wrongful arrest or assault occasioning physical (or mental) injury.  There is discretion in the law for such cases to be allowed to proceed if there are good reasons for the delay and I will write about these, and other exceptions to the Limitation Act, in my next blog.

To conclude this blog, however, I will leave you with the following kind words that Mr Bradshaw wrote to me –

“Although small beer for you perhaps, for me the positive settlement of this case draws a line under an unhappy episode and brings a sense of closure. Your initial judgment has been proved correct and I cannot recommend too highly the service I have received from you and your team”.

My client’s name has been changed.

 

Attrition warfare is a military strategy consisting of belligerent attempts to win a war by wearing down the enemy to the point of collapse through continuous losses in personnel and material. The war will usually be won by the side with greatest resources.

Unfortunately attrition warfare is often employed by Police forces when presented with a claim for damages. To compound matters, such a strategy is often, albeit inadvertently, aided and abetted by an underfunded County Court system which suffers from significant administrative delays. A claim that I have just settled against the Metropolitan Police exemplifies the strategy and delays that ordinary Claimants can expect to face.

I acted on behalf of Mr Dali who is a Project Manager in the Construction Industry.  On the afternoon of the 20 December 2012, plain clothed Police Officers attended at Mr Dali’s brother’s home address in North London.  Both Mr Dali and his brother were of exemplary character and had had no previous encounters with the Police.

At the time, Mr Dali’s brother was at work and no-one else was present at the premises.

Using an enforcer (‘the Rabbit’), one officer forced entry to the external porch door, shattering the pane of glass within the door.

At this point, Mr Dali’s niece had been driving past the house and observed a group of men trying to force entry and so contacted my client, her uncle, to advise as to what was happening.

Mr Dali’s niece collected my client from his home address which is close by and drove him to the house.  My client had a spare set of keys to the house and brought them with him.  En route, Mr Dali telephoned 999 to seek emergency assistance, of course unaware that the perpetrators were in fact Police Officers themselves.

Upon arrival at the premises, my client saw that the external door had been forced in and entry gained to the front porch.

Mr Dali ended his 999 call having been advised that a response unit would be sent.  He then spoke to a man standing outside and asked what was going on.

My client was asked who he was. My client advised that he was the brother of the owner of the premises, confirmed his personal details and that he had keys to the premises.  By this stage, Mr Dali had formed the impression that the men were Police Officers.  My client was asked to hand over the keys.  My client asked for proof that the men were Police Officers which was eventually provided.

My client asked as to why the Police were in attendance and he was advised that they had a Search Warrant. He asked to see it, during which time another of his brothers arrived on the scene.

The officers asked around for the Warrant which was eventually produced and shown to my client.  At this point, my client was directed to a senior officer, DS C who was said to be in charge.  My client was asked a series of questions including who he was, what was his relationship to the Occupier, whether his brother lived alone, whether he had any tenants, etc.

Whilst my client was speaking to DS C, his brother called and spoke to DS C. Whilst DS C was talking to the home owner, my client became aware that other officers were agitating to use the enforcer again so as to force the interior door of the premises to gain access.

My client stepped forward towards the premises (but again not into the porch) to advise the other officers that the officer in charge was speaking to the occupier and that further damage was not necessary.

My client then turned to face DS C and as he did so he then heard the sound of the enforcer being used and turned to see the front interior door opening having been forced.

My client stepped further forward (but not into the porch) and said that such action was uncalled for.  DS C approached having terminated his conversation with the occupier.  My client remonstrated with him as regards the conduct of his officers.  Other family members who had attended began to record events on a mobile phone.

On this recording, my client can be heard saying, “Got the keys, you didn’t allow me to use the keys, you smashed the door in”.  An officer can be heard making references to a Warrant, whereupon the premises alarm activates.

The recording further shows the following; facing the mobile phone and standing next to DS C, my client states, “I had the key to the door ……  this is the guy that I spoke to.  I had the key.  I’ve got the keys here to the house and what he said was, let me have a chat with him.  In the meantime, his Police Officers got aggressive…….”.

At this stage, DS C attempted to snatch the mobile phone and a scuffle broke out.  A male officer can be heard saying “I’ve had enough ……………..”  and the footage ends.

My client was then taken hold of by two officers and handcuffed to the rear.

DS C returned the mobile phone whereupon filming recommences.

My client is filmed saying that the officers had been “aggressive” and that he had “Just been arrested for no reason”.  My client is then searched.  At no point was my client advised that he was under arrest or why.

My client was subsequently transported to a local Police Station.  According to the Custody Record, his detention was authorised for “Obstructing Police”.

The circumstances of arrest were given as, “person detained deliberately obstructed officers who were attempting to carry out a search under a warrant.  He was warned of his actions but persisted in preventing the officers completing their search.”

Some 4 hours later, Mr Dali was interviewed during which he gave a full account.  Following review, it was decided to bail Mr. Dali for further investigation.  He was obliged to return to the Police Station 7 weeks later.

Upon re-attendance at the Police Station, Mr. Dali was charged with “Wilfully obstructing a constable in the execution of his duty” and bailed to attend his local Magistrates’ Court.  At his first appearance, he pleaded not guilty and the case was adjourned for trial.

Only a few days before the scheduled trial, the proceedings were formally discontinued by the Crown Prosecution Service, on the basis (quite correctly) that there was insufficient evidence to provide a realistic prospect of a conviction.

I was subsequently instructed by Mr Dali.  I identified that he had prospective claims for false imprisonment, assault and battery, trespass to land, trespass to goods/conversion, malicious prosecution and/or misfeasance in public office.

As is common, the Metropolitan Police in response to Mr. Dali’s civil claim adopted their preferred strategy of attrition warfare.

The employed strategy consists of a variety of tactics:

Don’t comply with the protocol

At the commencement of a claim, both parties are obliged to comply with the Civil Procedure Rules and in particular, the Pre Action Protocol.

The protocols outline the steps that parties should take to seek information  from, and to provide information to, each other prior to commencing Court proceedings.  The purpose of the protocols is to encourage early exchange of relevant information and early settlement without the need for litigation.

There is no specific protocol for Actions Against the Police but most practitioners adopt the Personal Injury Protocol.

The protocol usually commences when a letter of claim is sent. This will contain a summary of the facts, stating why the Defendant is liable and the nature and extent of the loss claimed.

In response, the Defendant is expected to acknowledge the letter of claim within 21 days and then within the next 3 months, respond and confirm if liability is admitted or denied.  If the Defendant denies liability, their version of events should be supplied and they should disclose documents in their possession material to the claim.

In Mr Dali’s case (after I had taken full instructions and gathered what documentation I could), a letter of claim was sent.  Notwithstanding the protocol, the Defendant failed to acknowledge the letter of claim within 21 days despite the letter having been received by the Met’s Legal Department. After several prompts, we finally received a written acknowledgement 2 months later in which the Defendant advised that they expected (per the Personal Injury protocol) to respond within 3 months.

Needless to say, the Defendant failed to confirm its liability position and/or provide disclosure within that time period.

Pre-issue a Defendant cannot be forced to confirm its liability position.  It can be forced to provide relevant (but not necessarily all) disclosure by an application to Court for Pre Action Disclosure.  No doubt mindful of that and following my threat to issue such an application, the Defendant provided some disclosure 6 months after the letter of claim was sent and 1 month after the Defendant said it would respond.  The Defendant did not, despite a number of reminders ever confirm its liability stance until after proceedings were issued. The net effect of these tactics is to keep the Claimant in the dark and make the expensive process of a  Court claim his only recourse (other than just abandoning the claim).  It is wholly contrary to the ‘cards on the table’ spirit of the Pre-Action Protocol.

Upon issue of Court proceedings deny liability

In the absence of any admission of liability or realistic offer of settlement, I was forced to issue court proceedings on behalf of Mr Dali and in response, the Defendant instructed Solicitors who filed a robust Defence, putting forward a very different factual account and denying liability. This denial was maintained to the very end of the case.

Take advantage of their greater financial resources

At an early stage of the proceedings, the parties are obliged to file a schedule of their incurred and predicted costs. Both parties anticipated that if this case proceeded to trial, the estimated length of hearing would be 7 days.

The general principle as regards costs in litigation is that the loser pays the winner’s costs. The Met Police asserted that it had a “strong defence” to this claim. Had it fought the case all the way to trial, the Defendant advised the Court that its total legal costs would be just under £32,000.

So if the Police continued to dispute liability and the case proceeded to trial and had my client lost at trial, he would have to pay the Defendant £32,000.

I was acting on behalf of my client by no win no fee agreement.  Although such an agreement covers my costs, it does not protect my client from adverse costs (i.e. the Defendant’s costs if he lost).  Further, my client had no insurance.

My client owns his own house and has some savings.  Had he lost, his savings and possibly his home were therefore at risk.

This threat to my client exposes the usual asymmetrical relationship between the parties; despite ever tighter pressures on public finances, the Police are much better resourced than a  Claimant. There is a significant disparity between a Police Force who can draw upon significant public funds to frustrate and defeat a claim and a Claimant, usually of modest means who will struggle to meet his own legal costs if he can’t find a Solicitor prepared to act by no win no fee agreement or be willing to expose himself to the possibility of substantial adverse costs should he discontinue mid-claim or lose at trial.

A Claimant is exposed in Court proceedings to potentially catastrophic personal economic consequences; the Police, whether intentionally or individually, simply aren’t.

Take advantage of the Court’s delay

Once the parties have filed a questionnaire about how they think the case should proceed, the court is expected to list the case for a Costs and Case Management hearing.

Upon filing questionnaires, Mr Dali had to wait nearly 6 months for the case to be listed. Half a year!

In reality certain steps could be taken to progress the case whilst the parties waited for the court to actively consider the case and set down a trial timetable.

But such delay is music to the Defendant’s ears. The longer the case drags on, the more fed up your average Claimant will become, and more amenable to a lower settlement or so despondent at the delays and frustrations of the process, that he/she will simply give up so as to move on with their life.  For that reason, the Met refused to engage in activities that could progress the case claiming that no action should be taken until directed by the court (which is simply untrue).

Put forward a trickle of low ball offers of settlement

Notwithstanding the Defendant’s initial failure to either admit or deny liability until court proceedings were issued and the Defendant’s robust denial of liability thereafter, the Defendant put forward a trickle of low ball offers, starting with £2,000.  A year later, the Defendant offered £3,500,  stated to be their “final offer”.

Mr Dali had been arrested and detained for 10 hours. Whilst detained, his home had apparently been searched.  Upon release, he was advised that his mobile phone would be retained as evidence.  He was ultimately prosecuted over a 5 month period. Shortly before trial, he was advised that the CPS had discontinued proceedings. Subject to establishing liability, Mr Dali was entitled to substantial damages.

Following the issue of court proceedings and notwithstanding that the Defendant had a “strong defence”, the Defendant made further offers of settlement, first £8,000, then 4 months later £9,100.  On my advice, these offers were rejected as were subsequent offers of £15,000 5 months later and £20,000 8 months later. Such offers were made pursuant to Part 36 of the CPR.  Part 36 offers are a powerful weapon in a Defendant’s Solicitors’ armoury.  If a Claimant rejects an offer and then does not beat that offer at trial, the court will impose severe cost penalties on the Claimant such that if for example Mr Dali had rejected this last offer of £20,000 but at trial, won and only recovered for example £17,500, he would almost certainly have forfeited most if not all of the damages awarded such that he would have achieved only a ‘pyrrhic victory’.

The court expects negotiation to be a two-way street and mindful of the risks of litigation and the ordeal of a 7 day trial at Central London County Court Mr Dali authorised me to put forward an offer on his behalf to settle his claim for £28,000. Belatedly (what else), the Defendant ultimately accepted my client’s offer just 1 month before the trial window opened. In addition, an Inspector of the Met’s Civil Actions Investigation Unit wrote to my client to apologise.

Faced with such tactics, only the strongest willed Claimants supported by the very best Solicitors will continue to fight for justice & for everything this entails. I believe that police forces continue to employ such a strategy quite deliberately because by doing so, they put off (or indeed ‘buy off’ cheaply) sufficient numbers of claims presented by weak and inexperienced solicitors, for the strategy in their eyes to be successful. What they fail to appreciate is that they harm themselves in the process causing yet more damage to  their reputation as public servants and the confidence that society has in them.

Furthermore, such tactics will not work, and indeed will ‘backfire’ ultimately costing them far more financially when they are up against a solicitor who understands what their game is and how to beat it as I am proud to say the clients who I’ve represented will be able to tell you.

 

I have previously blogged about the continuing decline in the number of arrests carried out by the Police in England and Wales and the reasons for this, particularly  the shift in Police culture away from arrest now, investigate later to properly and actively considering alternatives to arrest.

This decline was recently reported by the national press.  Here’s the Daily Mail headlines:

I personally welcome the shift in Police culture away from ‘automatic’ arrest, especially for low level crimes where the suspect is of good character and the offence supported by the evidence of only the alleged victim, having represented too many people who should never have been arrested because there was simply no objective justification for their arrest as opposed to prosecution.

But if a person is not to be arrested and then charged in person,  and instead they are going to be ‘charged remotely’ by delivery of a postal summons at a later date following a voluntary interview, then it is essential that the investigating officer properly records the suspect’s current address and ensures that any postal summons is sent to that address.  Failure to comply with this elementary requirement could have serious consequences as my client, Jack Oliver unfortunately discovered.

On 24 June 2016, Mr Oliver was interviewed by Merseyside Police on a voluntary basis in respect of an allegation that he had committed a Section 20 Assault.  At this time, Jack tendered his then home address.  Following interview, Mr Oliver was advised that the investigating officer would be in touch.  Several weeks later, Jack contacted the Police for an update and was advised that the case had been referred to the CPS for review and it could e weeks before a decision was made.

On 23 September 2016, Mr Oliver was the subject of a routine stop check.  He provided his personal details and was advised that there was an outstanding no bail warrant for his arrest in respect of his failure to attend Court on 16 September 2016.

Jack advised that he had no knowledge of any hearing on 16 September 2016 and/or the said warrant having not received any notification from the police or  notwithstanding his representations, Mr Oliver was arrested on the basis of the no bail warrant.  He was transported to his local Police Station where he was kept in overnight to appear before the Magistrates’ Court.

Jack eventually appeared before the Magistrates whereupon the Court ordered further enquiries to be made.  Mr Oliver was finally released at approximately 12.30h.

It subsequently transpired that following his interview in June, Jack was summonsed to attend Court on 16 September 2016.  Unfortunately, an incorrect address was endorsed on the postal summons.  The investigating officer gave the Court Mr Oliver’s old home address that had been extracted from Police records. In fact, he had not lived at this address for 10 years.

In all, Mr Oliver was detained between 15.25 on 23 September to 12.30 on 24 September 2016, a period of over 21 hours.

Jack contacted me to pursue a claim.  I had to advise Mr Oliver that any claim for the tort of False Imprisonment would fail; Jack had failed to attend Court, the Court had issued a warrant and Merseyside Police had then arrested Mr Oliver on the basis of that warrant. Although the Police had in effect instigated the wrongful arrest by reason of failing to use Jack’s correct address, the warrant was still technically lawful and therefore they had a cast iron defence on the basis of Section 6 of the Constables Protection Act 1750, which provides (in somewhat archaic language) immunity from any claims arising out of arrest or search under warrant –

“No action shall be brought against any constable… or other officer, or against any person or persons acting by his order and in his aid, for any thing done in obedience to any warrant under the hand or seal of any justice of the peace…without making the justice or justices who signed or sealed the said warrant defendant or defendants,[and] that on producing and proving such warrant at the trial of such action the jury shall give their verdict for the defendant or defendants, notwithstanding any defect of jurisdiction in such justice or justices…” 

Clearly, this seemed to leave Jack in a grossly unfair situation, given that the warrant which gave the Police protection was only issued because of Police administrative error. I therefore considered an alternative basis for Mr Oliver’s claim; one possibility was a claim in the tort of Malicious Process which requires 4 elements –

1. A warrant was issued
2. Without reasonable and probable cause
3. The person or persons responsible for procuring the warrant acted maliciously
4. The person subject to the warrant suffered damage thereby

In this case, 3 of the 4 elements of a successful claim were made out, but crucially not the one requiring “malice” or deliberate ill- intention; this was a serious error by the Police officer handling the case, but there was absolutely no reason to think he had done it deliberately. It was a mistake, albeit one with serious consequences.

That left the options of pursuing the Police on the grounds of the tort of Negligence or, at the opposite end of the spectrum from the archaic Constables Protection Act of 1750, the much more recent provisions of the Human Rights Act or Data Protection Act 1998. As I have explained in other blog posts, the Police enjoy a general immunity from suit in negligence claims connected with their investigative duties, but here I was of the opinion that a Court would find that the Police owed a duty of care to Mr Oliver and that they had breached that duty. The majority of cases in which it has been ruled that the Police cannot be sued for negligence relate to acts of omission rather than commission i.e where the Police have failed to do something rather than taking active steps which initiated the damage (as I firmly believed they had here, by sending the summons to the wrong address in the first place).

An example of this type of claim in practice is the case of Hough v Chief Constable of Staffordshire Constabulary (2001) Times 14 February, CA in which a False Imprisonment claim brought in negligence against the Police failed. Officers had arrested the Claimant in that case because of an incorrect entry on the Police National Computer system, but the officer actually carrying out the arrest had not made that entry and had no reason to believe it was not valid. The Judge in the case, Simon Brown LJ, suggested that the claim should have been brought against the Police either in negligence (on the basis of the mistake of the Police employee inputting the data) or, better yet, under the DPA (for mishandling of the Claimant’s personal data leading to loss and damage).  In my own opinion (although apparently overlooked by the Judge) a claim could also have been brought  under Article 5 of the Human Rights Act.

On behalf of Mr Oliver I was able to successfully argue that his arrest was attributable to the negligence of the arresting officer in that he had failed to update Jack’s address on the Police system. Following negotiation, I am pleased to report that Mr Oliver’s claim settled by Merseyside Police for £5,300 together with his legal costs.

I was very pleased to be able to use my expertise in this type of case to help Mr Oliver successfully negotiate the ‘no man’s land’ filled with all sorts of legal obstacles that case law and legislation throw in the path of victims of this particular miscarriage of justice. The tightening of Police procedures around the issuing of postal summons, and ever more attention to the correct processing of sensitive and crucial personal data, will hopefully minimise the number of future victims.

My client’s name has been changed.

Why is it harder to get the Police to say sorry and admit they were wrong, even just to show some compassion and consideration towards a person who has suffered – or claims to have suffered- at the hands of a Police officer – than it is to get them to pay tens of thousands of pounds in compensatory damages ? This to me is one of the most obvious symptoms of the unhealthy ‘us v them’ tribal mentality prevalent in many Forces which leads to a multitude of abuses and cover-ups, and which seriously undermines public trust and confidence in the Police.

Imagine if you had a case of a fireman who had been deliberately – or even negligently – causing arson. Would you expect the Fire Service as a matter of course to presume that the victims of the fire were in the wrong, and do their damnedest to either stop a complaint being brought or ‘whitewash’ the result? I think we would all be outraged; but this is actually what is happening as a matter of routine in Police Forces up and down the country.

I have recently concluded a hard-fought case against West Yorkshire Police which contains a disturbing example of this endemic problem.

My client Oluwatoyin Binta Shinnel Azeez has kindly given her permission to tell her story. On 22 April 2014 she was at her home in Bradford with her young children (aged between 1 – 13), when officers from West Yorkshire Police came to her property, demanding to speak to Ms Azeez’s lodger (the teenage son of a family friend), who was living with the family at the time. Previous visits to Ms Azeez’s home by the Police to check on the lodger, who was at the time under a curfew order, had passed entirely peacefully, but on this occasion the lead officer, PC H, forced his way into the premises as soon as Ms Azeez answered the door to him, pushing her to the floor in the process.

Ms Azeez is a law-abiding person of good character with no previous convictions. She had willingly answered the door to PC H, and the violence which he then displayed, in bursting past her into the house, was completely unjustified.

Ms Azeez, in a state of considerable distress, protested to PC H that he had no right to enter her house in such a manner. She was at the time, dressed only in a loose-fitting kaftan, having been showering when the Police first knocked at the door. She now asked PC H to leave, whereupon he pushed her in the chest, making contact with her breast, and again knocked her to the floor. Now even more outraged and distressed, Ms Azeez got to her feet and demanded that PC H leave; in response he viciously assaulted her, grabbing her by the neck and pushing her against the wall. All of this was unfolding in front of Ms Azeez’s young children, and the impact upon them can easily be imagined.

The Azeez children pleaded with PC H to release their mother, to no avail. As Ms Azeez began to choke and feel lightheaded, PC H then escalated the assault by spraying CS incapacitant gas into her face at close range, and without warning. The gas spread throughout the close confines of the house, and also began to affect Ms Azeez’s young children, one of whom was a one- year old infant.

PC H then dragged Ms Azeez outside and onto the pavement, causing her to fall and strike her head on the ground. Forcing Ms Azeez to keep her head down by kneeling on her back, PC H then handcuffed her arms behind her back and left her lying in the street. To the pain and degredation she was already suffering, was the added humiliation that she was wearing only loose- fitting clothing and felt exposed to the public view of her neighbourhood.

 

PC H then returned and renewed his assault upon Ms Azeez, pulling her to her feet by her handcuffs and then pushing her back down, causing her to bang her head against her garden wall, and vomit. PC H then further tormented Ms Azeez by informing her that not only was she to be taken into Police custody (for no specified reason whatsoever) but that also Social Services would be called and her children taken away from her.

Ms Azeez was then transported in the cage-section of a Police van to Trafalgar House Police Station, still without any explanation as to what she was being arrested for, or even that she technically was under arrest.

At the Police station PC H falsely asserted that Ms Azeez had assaulted him, but after listening to his account, the Custody Sergeant refused to authorise detention of Ms Azeez on the grounds that PC H had not been acting in the course of his duty, as he had in fact had no right to enter Ms Azeez’s premises uninvited.

Ms Azeez was then told she was free to go, but was offered no explanation or apology.  Given her obvious injuries, the Custody Sergeant advised that she should go to the Hospital, and implied that she would be given a lift.  She was directed to wait in the public waiting area.  She did so for over an hour, during which time she was completely ignored by  Police staff – offered not even so much as a cup of tea- and becoming increasingly worried about her children, who the Police had informed her had been ‘given’ into the care of another Mum at her children’s school whom Ms Azeez did not know well, and who had never looked after the children before. This had been done by the Police without any consultation with my client.  Eventually, finding herself being completely ignored, Ms Azeez had no choice but to just leave the Police Station and walk home in the paper custody slippers she had been given (which soon disintegrated), injured and without any money or a phone. After walking some distance, she had to accept a lift from a stranger to get back home, in itself far from an ideal situation; fortunately she was soon reunited with her children, but all of the family were deeply traumatised by what had happened, and the children as well as Ms Azeez were still suffering from the effects of the CS gas spray which PC H had discharged in their home.

Ms Azeez understandably brought an official complaint against the Police, but found the officers handling her complaint throughout to be generally unhelpful, rude and dismissive.

The first action she took was on the morning after the incident, after she and her children had been seen at their local hospital. She telephoned the Police to lodge a complaint but was rebuffed by being told that the Police apparently had “no trace” of the incident! Disappointed but undeterred, Ms Azeez then attended Trafalgar House Police Station in person, after dropping her eldest child at school, to make the complaint in person.

Her subsequent interactions with the desk officer constitute, in my view, a ‘text book’ example of the way the Police try to frustrate and deter complaints against them. Firstly the officer, who displayed a sceptical attitude to Ms Azeez throughout, tried to deter her by telling her that it was not easy to bring a complaint and that it could only be done via the internet (not true). He repeatedly tried to dissuade her from pursuing the complaint, before reluctantly agreeing to take her details (name and address) and go and “check” on the incident. Ms Azeez was now left waiting for over 2.5 hours – with her younger children and baby-  before the desk officer informed her (and only after she approached him, not vice versa) that he hadn’t been able to find any trace of the previous evening’s raid on her home, or her arrest, and accordingly, had decided to do nothing – not that he had done her even the courtesy of explaining this to her!

Ms Azeez was absolutely “gutted” by this outcome, but after being encouraged by friends, was strong enough of character to return to the station the next day to insist that the Police listen to her and open a formal investigation into her complaint. Knowing the hostile attitude she was going to receive from them, Ms Azeez had the foresight to bring sandwiches, a flask of tea and blankets in order to ‘camp out’ at the station, with her children,  for as long as it took to get the Police to allow her to bring her complaint. Once again, the first officer she spoke to was dismissive and tried to ‘scare her off’ by saying how lengthy and complicated the complaint process would be. Undeterred, Ms Azeez stood her ground and waited for the 2 hours it took for a Sergeant to finally come and take her statement, during which waiting time she had to feed her infant son and change his nappy. Throughout the process of giving her statement, she found the Sergeant to be negative and critical of her account; he clearly did not approach the process of interviewing her with an open mind, and only made arrangements for her injuries to be photographed when she prompted him.

We may well ask; what state would society be in if the Police displayed this sort of attitude to investigating complaints against members of the public generally, and why do Police officers so often get ‘special treatment’ like this when members of the public complain against them ?

Following an investigation which took over 15 months, it was concluded that although the officer did not have a lawful power of entry into Ms Azeez’s home  he had “an honestly held belief” that he did. Accordingly, PC H did not have a case to answer in misconduct or gross misconduct but would “be given words of advice and appropriate training”.

Ms Azeez felt deeply hurt, not only because of the vicious assault she had suffered at the hands of PC H, but because of the total lack of help or sympathy offered to her by the West Yorkshire Police as a whole, who rather than supporting her as the victim in this matter, seemed to rally behind and protect PC H. She instructed me to represent her as a specialist lawyer in actions against the Police, and I commenced Court proceedings on behalf of Ms Azeez against West Yorkshire Police for assault and battery, false imprisonment, trespass to property and breaches of the Human Rights Act.

Following the institution of Court proceedings and just 2 weeks before trial, West Yorkshire Police agreed at a Joint Settlement Meeting on 29 September 2017 to a settlement of £25,000 in damages, plus Ms Azeez’s legal costs and, perhaps most importantly, and very rarely seen even in successful actions against the Police, a formal apology from the Assistant Chief Constable of West Yorkshire Police which is reprinted below.

I ask you to bear in mind that this apology- as fulsome as it seems- was only extracted from the Police after over 3 years of costly litigation, putting a significant dent in the ‘public purse’ which ultimately must pay for Police misconduct and abuse of power. How much time, expense and heartache could have been saved if the ACC’s letter had been written to my client in September 2014 rather than 2017 ? However, that kind of open and conciliatory approach appears to be utterly alien to the prevalent  Police mentality.

Whilst the settlement terms achieved should go a long way to helping Ms Azeez put her life back together after this highly distressing incident, the memories of which have caused her to have to relocate her family from the Bradford area to London,  I still feel that what happened to Ms Azeez and her family was truly outrageous.

Obviously, the assault perpetrated upon her by an armed officer in front of her young children was absolutely unconscionable, but to me, equally shocking and deplorable was the way in which West Yorkshire Police as an organisation callously turned their backs on Ms Azeez once they determined that they had been wrong to force entry into her home, assault and then  arrest her.  It would have been a simple and straightforward matter at that stage for a senior officer to have offered an apology, some words of kindness and  arrange immediate medical treatment and thereafter a lift home.  Even just an explanation as to what had happened.  As it was Ms Azeez was left completely in the dark both as to the reason for her arrest and the reason for her release. It seems that the Force was only interested in her if they could classify her as a villain; they had no concern for her as a victim – the victim of one of their own officers indeed.  Having been assaulted in her home, effectively abducted, separated from her children and taken across town against her will and without any just cause, she was then to all intents and purposes ‘thrown out’ onto the street to make her own way home.  Further insult to injury was added by the Forces’ usual approach to a complaint against its officers: treating the complainant with contempt.  Eventually they did the right thing, but also because my client had the courage and conviction to pursue a court claim to enforce her rights.

Should it really be this hard, and this rare, for the Police as an institution to be able to say “sorry”?

 

One of the things I cannot help but reflect upon as I have been writing this series of articles about Police Misuse of Stop and Search powers, is how most of the victims in these cases have been black.

I have commented at the conclusion of one of my previous blogs on this subject that, given the prevalence of those of my clients who have been subjected to unlawful Stop-Searches by the Police who are from an ethnic minority background, it is hard to avoid a conclusion that having a non-white skin colour, or a non-British accent is, in the heads of certain Police Officers, taken as an indicator of likely criminality.  In this regard, my professional experience is borne out by the statistics that show that in 2015–16 black people were 6 times more likely to be stopped and searched by the Police than white people.

This leads me to what I consider to be one of the most flagrant examples of ‘routine’ racism in day-to-day Policing, a case I have recently concluded on behalf of two clients, a brother and sister of African heritage, in which, despite neither of them being the subject of the initial Police Stop and Search they were the only two people arrested at the scene whilst the white subjects of the Stop and Search were not arrested and were allowed to go free.

On the day in question in January 2013 my clients Ellie (then aged 23) and her brother Mark (then aged 21) were at home in the flat where they lived with their mother in Deptford, London.

Both Ellie and Mark were of Nigerian birth, but had resided lawfully in the UK for a number of years.  Mark was a student and Ellie worked for the NHS.

Both Ellie and Mark were of impeccable character, and prior to the incident in question neither had ever been in trouble with the Police.

Ellie had earlier been out in the company of her Polish boyfriend Peter, and Peter’s friend Tomas (who is also Polish).

Peter had dropped Ellie back at her flat, so she could get changed, and then he and Tomas had gone to look for a parking space for their car.  The intention was then that Peter, Tomas and Ellie would then travel by foot and train to Stratford Market.

However as Ellie left her flat she could see that Peter and Tomas were out of their car and the car was being searched by three men.

The three men searching the car were all white skinned and were wearing plain clothes, but as Ellie got closer she could see that they were wearing badges to identify themselves as Police Officers and they also verbally asserted that they were Police.

The three plain clothes officers finished searching the car and were now body searching Peter and Tomas.  The situation was calm and Peter and Tomas were fully cooperating.  Ellie walked to Peter’s car and put her handbag in the back of the car.

Ellie then asked the plain clothes officers what was going on and one of the officers replied that they were searching Peter and Tomas for drugs.   Ellie replied, “Well they haven’t got any drugs, you’re searching the wrong people”. Ellie did not shout at the officers or try to interfere with the search; she knew that both Peter and Tomas were innocent and presumed the search would soon be over.

A fourth Police Officer, also a white male, now arrived at the scene and started to search Peter again, although Peter had already been searched.

Peter politely queried with this newly arrived officer why the Police hadn’t shown any ID badges and whether they needed a Warrant to search him.

In response, the newly arrived officer told Peter to “Shut the fuck up” and asserted that the Police could do whatever they wanted. The officer then made comments to the effect that drug taking was common in Poland.

Ellie was shocked by what she heard and spoke up saying that the officer should not talk to Peter in that way and that she had been to Poland and it was nothing like what the officer was trying to suggest.

The officer became irate at Ellie’s intervention going as far as to push her in the chest telling her to “Shut the fuck up”.

This officer then opened the boot of the car again (although it had already been searched) and Ellie approached to see what he was doing. The officer then slammed the boot lid shut in an aggressive manner, which caused the boot lid to strike a glancing blow against Ellie’s hand which was resting on the corner of the boot.  Fortunately, Ellie was able to snatch her hand away so it was not trapped in the boot.

Peter then protested to the officer that he should be more careful.

Ellie’s left hand was now hurting where it had been struck by the boot lid. The officer had offered no apology for catching Ellie’s hand and when she now spoke to him angrily asking why he had slammed the lid when her hand was there the officer replied “That’s it, you know what, get into the car.”

The officer then started to push Ellie away from Peter’s car and towards a nearby, unmarked, Police car.  Ellie protested to the officer “What are you doing?”  The officer replied “You’re under arrest” but did not say what she was being arrested for.

The officer then grabbed Ellie’s hand in order to apply a handcuff, and Ellie pulled away from him.   The officer took hold of Ellie and attempted to get her hands behind her back so he could handcuff her, hurting Ellie in the process.

The officer kept repeating to Ellie that she was under arrest but not telling her what she was allegedly being arrested for.

Ellie asserted that she would resist the officer until he told her what it was she was being arrested for.

A number of local residents and passers-by had now heard the commotion and were gathering around.

The officer managed to get a handcuff on one of Ellie’s hands and then dragged her towards the Police car, twisting her handcuffed hand as he did this.

The officer then attempted to push Ellie into the back of the Police car. Ellie was resisting being pushed and kept saying to the officer “Tell me what I’ve done”.

Ellie was attempting to hide her hands in her lap so the officer could not take hold of them.  She was understandably extremely distressed by what was being done to her. The officer had launched an unprovoked assault upon her and was now appearing to attempt to arrest her for the ‘crime’ of having annoyed him.

The officer now seemed to lose his temper completely and said to Ellie “You black bitch can you put your hands so that I can handcuff you, stop resisting, you’re making my job harder”.

Ellie was now screaming at the officer to let her go and in reply the officer said “You bitch, you black bitch, you’re resisting arrest, that’s it, you gotta go, that is it”.

A second Police Officer then came over and helped the officer who was struggling with Ellie to push her face down onto the pavement, causing her to bang her head.

Ellie was now lying on her front on the pavement and one of the officers used his boot on Ellie’s spine to keep her head down whilst they handcuffed her hands together behind her back.

Whilst Ellie was lying on the ground she was able to see that amongst a crowd of bystanders was a young man who was recording what was happening on his mobile phone.  Ellie did not know who this man was.  However Ellie then also saw her younger brother Mark amongst the crowd and called out to him to record what was happening to her, and Mark took out his phone to photograph the incident.

Mark had been getting dressed in his bedroom when he heard a commotion in the road outside and recognised the voice of his sister.

Looking out of his bedroom window Mark had seen his sister being assaulted by the Police Officers and had therefore left the flat and had gone outside to see what was happening.  Mark was naturally concerned for his sister.

He was extremely shocked when he came outside to see Ellie being held down on the ground, handcuffed by the Police Officers.

In response to Ellie’s request that he photograph what was being done to her, Mark did indeed take out his mobile phone and took one photograph of the scene, showing Ellie pinned to the floor by the Police Officers.

There was of course absolutely nothing illegal in him taking a photograph of this very public scene.

Neither now, or at any point, did Mark attempt to physically intervene in his sister’s arrest in any way.

Having taken the photograph, Mark did not attempt to approach his sister or any of the Police Officers.

However, one of the Police Officers then approached Mark and demanded that he hand over his mobile phone as the officer wanted to see what he had photographed or videoed.  Mark refused.

The officer then said to Mark words to the effect that if he deleted the picture, then he would not be arrested.

Mark was in shock and asked the officer why he was saying this to him.  He told the officer he would not delete the picture as he wanted evidence of what had been done to his sister.

The Police Officer then said to Mark that he was  under arrest on the grounds of either obstructing or perverting the course of justice.  He took hold of Mark’s arms and handcuffed him to the front.

Mark was in a state of distress and confusion and  could not believe what was happening.

Both Ellie and Mark were now placed in separate Police vehicles (Mark in a Police car, Ellie in a van which had been called to the scene) and were driven away to Lewisham Police Station.

Peter and Tomas meanwhile were released by the officers at the scene and allowed to go about their business.  The search upon them and their car had, of course, been completely negative.

In my opinion, even if the language used by the officer who was arresting Ellie had not been overtly so, the racist motivation for the arrest of Ellie and her brother would appear quite explicit in circumstances where neither of them were the target of the Stop-Search and the white men who were the subject of that search had been allowed to go free.

On arrival at the Police Station, Ellie was taken before the Custody Sergeant and was informed that she had been arrested for fighting an officer. This was the first time this had been said to her.

Meanwhile, Mark was brought before the Custody Sergeant and one of the officers accompanying him falsely alleged that Mark had been arrested for attempting to obstruct the Police from carrying out a Stop and Search.  It was alleged that he had been told to get back by the Police several times  before being arrested, which is simply not true.  Mark could not believe what he was hearing.

Ellie and Mark were then locked in the Police cells for a period of over 13 hours before eventually being released.  This was an extremely distressing experience for both of them, who had never undergone anything like this before.

Both of my clients were ultimately, and perhaps unsurprisingly, released without any charge whatsoever being made against them.

A review of the evidence prior to release by a Police Inspector in Ellie’s case is recorded in the Custody Record as follows –

There is nothing in these notes that identify this person stopping or preventing the officers carrying out the search.

Likewise, the same Inspector was obviously not impressed or persuaded by the evidence of the arresting officers against Mark as recorded in his Custody Record is the following comment by the Inspector shortly prior to release –

There is sufficient doubt over the arrest of the sister for this matter of obstructing that arrest to be NFA’d  as insufficient evidence to obtain a realistic prospect of conviction in that if the sister’s arrest was without grounds then the officers were not acting in the execution of their duty and cannot therefore be obstructed.

This whole story, I’m sure most people would agree, contains quite a shocking series of events. Without meaning in any way to be flippant, rather indeed this is something we should take very seriously, it does appear to me that Ellie was arrested for the ‘offence’ of being black and annoying an officer, whilst Mark was arrested for the ‘offence’ of being black and refusing to hand over his phone (which the officer had no lawful power to demand).

One good thing to take away from this case is that the Senior Inspector who conducted the review had concerns about the evidence of the arresting officers and did the right thing in directing that Ellie and Mark be released without charge.

Nevertheless a considerable amount of harm had already been done.  Both brother and sister had been deprived of their liberty for over 13 hours and their trust and confidence in the Police had been deeply shaken.

Ellie in particular suffered both physical and psychological injuries as a result of her arrest and incarceration which took months to resolve.

I pursued a claim against the Metropolitan Police on behalf of both Mark and Ellie seeking damages for assault and false imprisonment.  Disappointingly, given the conclusions which had been reached by the Inspector in the Police Station, but perhaps not surprisingly, given the usual conduct of the Metropolitan Police when faced with civil claims, liability for both of my clients’ claims was initially disputed by the Police and we were forced to commence Court proceedings against them.

In response to those proceedings the Police asserted that the arrest of both Ellie and Mark had been justified and asserted that Ellie had interfered with the search of Peter, and that Mark had attempted to physically intervene in his sister’s arrest. These allegations did not cause me any great concern however, because I knew that both Ellie and Mark were telling the truth.

Ultimately, it appears that the Police Officers who were involved in this case were reluctant to go to Court to tell their lies on oath, as prior to trial the Metropolitan Police approached us with offers of settlement, and the claims of both Ellie and Mark were eventually settled for total damages of £15,000.00.

In response to this Ellie wrote me the following very kind letter –

I don’t know how to thank you and your team enough in helping me and Mark through this whole terrible incident that happened a few years ago.

I was totally worried the situation will remain unsolved and I didn’t know how I would feel by going to court and getting a biased Judge.

I was also left with so much anger as to why it happened to me because I am just a very calm person. 

I am very happy that this is out of the way and I can focus on my future as this issue has really disturbed me for years.

And even speaking to you every time about it made me very emotional and cry but I’m going past it as time goes on because I have never experienced such.

I am glad with the outcome as I thought what they did was very wrong and I know they have done this to so many people who didn’t know the law and was quiet about it.

Of course it would not be possible without your help so I am saying thank you a million.

As I have said before in this blog, Justice is not just about the pounds and pence of the compensation award, but giving people a real feeling of restitution, that the powerful in society can be held to account when they do wrong and the principles of justice and fairness which it is essential that we can all believe in for society to properly function can be upheld and protected by the mechanisms of the law.  This is especially important for any groups in society who are disproportionately targeted by Police abuses, as is clearly the case with illegal stop/searches of people of non-white appearance.

 

In parts 1,  2 and 3 of the series, I’ve pointed out that the Police have power to stop and search individuals both with reasonable suspicion (for example under Section 1 of PACE,  Section 23 Misuse of Drugs  Act) and without (under Section 60 CJA). Further, that an unlawful stop and search can lead to a claim for false imprisonment and assault/battery, compensated by an award of monetary damages.

Sometimes, a stop and search can lead to a situation escalating. For example, where the individual takes exception to being stopped and searched and this leads to his arrest for alleged criminality not associated with the primary purpose of the stop, for example, for obstructing or assaulting the conducting officer, breach of the Public Order Act or being drunk and disorderly.

Several years ago, I represented a young man of exemplary character who was training to be an architect.

My client, Ade was born in Nigeria and is black.

One evening, Ade had been playing a 5-a-side football at a local school.

After the game Ade got a lift home with 2 friends, Dan and Sam (who are white).  Dan was driving his BMW motor vehicle. All were wearing football kit and had seatbelts fastened.  Ade sat in the front passenger seat.

At around 20.30h the car arrived at traffic lights and was stopped by a Police van from the ‘Matrix’ department of Merseyside Police.

Two male officers and one female officer alighted and walked towards the car.  The driver of the van remained in it.

A male officer approached the driver’s door of the car.  Dan opened the door and was ready to alight when the officer said, “Stay in the car”.

A male Police Officer came to Ade’s side of the car.  This officer either said or motioned  to Ade that he should alight from the car. Within the officer’s view Ade began to and after a few seconds managed to remove his seat belt and then alighted.  The female Police Officer was standing nearby.

The male officer asked Ade  a number of questions about where he was coming from and what he had been doing.  In answer to those questions Ade confirmed that he was going home, having been playing football.  Ade gestured in the direction of his home on a nearby estate.

The officer told Ade to empty his pockets and Ade, still in football kit indicated he hadn’t any.

The officer then used the palm of his hand upon Ade’s back to usher him towards and then into the back of the police van.

The officer then asked Ade if he had anything on him.  Ade confirmed that he did not.  The officer then told Ade to lose his attitude and to remove his shoes and socks.  Ade was surprised at the officer’s comment about his attitude; he had quietly done everything asked of him.

Ade removed his shoes and socks as requested, revealing nothing of note.

It is worthwhile pointing out that only Ade was searched by the Police.  Neither of his two white companions were.

The officer then informed Ade that he was going to give him a fine for not wearing a seatbelt.

On hearing this, Ade was incredulous.  He had in fact been wearing a seatbelt, as the officer had seen.  Ade told the officer that he always wore a seatbelt and that moreover in the car in which he had been travelling there was an automated warning system which “beeped” continually if a seatbelt was not worn by any occupant.

Ade asked the officer whether he was serious and affirmed that he had been wearing his seatbelt.  The officer told him that he had not been wearing it and began to ask Ade to provide his name and address which he did.  Ade was incredulous but, as before, compliant. Ade was handed a Fixed Penalty Notice and told to get out of the van and not to get into further trouble.

Ade advised the officer that he intended to make a complaint because the way he had been treated was  completely unacceptable to which the officer replied, “Go on then”.

Ade having alighted from the van, for the purposes of his intended complaint attempted to copy its registration number into his mobile phone but the van drove away before he could do so completely.

Ade therefore asked  Dan to follow the van so that he could record its registration number.

After a few minutes, they got close enough to the van to record its registration number when it came to a halt.

Ade alighted from the BMW and approached the front passenger door of the van. The officer in the front passenger seat leant out of the window and  Ade requested his details.

At this, the officer covered his shoulder and pretended to be on his radio.  The officer asked what the matter was and if everything was okay and then alighted from the van.  Ade replied, “No, everything is not ok”.  Ade felt angry but remained calm and again asked the officer for his number.

Ade was not swearing or aggressive but was assertive. There was no one else around.

Another male officer alighted from the van, walked around the back and approached Ade from behind.  This officer was aggressive in his attitude and told Ade that he could ‘get done’ for attacking an officer, disturbing the peace and/or wasting police time.  He accused Ade of being aggressive.

Ade felt angry but remained calm.  The same officer told him to stop being aggressive, even though Ade was not in fact aggressive. He then told Ade to sit in the BMW.

Ade replied, “No, I’m waiting to take down some details I’ve asked for”.  The officer then told Ade that he had given his final warning and that Ade would be arrested.  However, the officer did not say why Ade would be arrested.

Ade stood in the same position silently. Whilst this was going on Dan alighted from the BMW and was standing nearby.  He took hold of Ade’s arm and told him “Leave it be”.

One of the male officers then seized hold of Ade and took him towards the police van saying that he needed to have a ‘strong word’ with him.

The officer who had warned Ade not to be ‘aggressive’ then seized hold of Ade and twisted his arm with the help of the third male officer and pushed Ade against the side of the van.  Ade was handcuffed.

Ade did not struggle or resist.

Another officer then said to his colleagues “Let me have a word with him” referring to Ade.

Ade was then taken into the van. The officer was calm and friendly.  Ade told him that he had recently been stopped by the police and that it was wrong what had happened on that occasion and again on this.

Ade said that he had definitely been wearing his seatbelt whilst travelling in the BMW.  The officer said that he understood and that he would try and speak to his colleagues about letting him off.

Ade said to him that what had happened was wrong and that he thought that it was because of his colour.  Ade said that he was going to make a complaint against the officers for being racist.

Another officer alighted from the van and spoke to the two others.  Ade could not hear the conversation.

One week earlier Ade had been on his way home from work when he had been randomly approached, stopped and searched by police officers.  No reasons had been given.  At the time he had been wearing a suit.  The police had thrown his jacket to the ground, emptied his pockets and had then let him go. At the time Ade had supposed that the stop and search had been due to his age and whereabouts, not his colour.

The conversation between the officers lasted for approximately one minute. All the officers then got back into the van and Ade was transported to the local police station.

Ade was not told that he was actually under arrest or why.

Ade was by now completely incredulous, knowing that he had done nothing wrong. During the journey to the police station Ade’s handcuffs were  reapplied to the front.

Upon arrival at the police station, Ade was kept for nearly an hour in the holding room before being taken to the custody suite to be booked in.  During the wait the police officers appeared to be having some private conversation between themselves and passed a note to each other.

The custody sergeant asked why Ade had been arrested.  One of the officers from the scene asserted that Ade had been causing  trouble and had been a nuisance to people in the neighbourhood.  The officer then said that he had had to arrest Ade to prevent him from continuing to cause distress to the public.  The officer falsely told the custody sergeant that he had given Ade many warnings before he had arrested him.

The handcuffs were removed and Ade’s details fingerprints and DNA sample and photographs were taken.

Ade was released after some 45 minutes and issued with a second Fixed Penalty Notice in relation to the alleged public order offence.

Ade immediately lodged an appeal against both Notices, expecting to be prosecuted.

Of course, the Police officers gave a very different account of events.

One officer, PC B said he had spotted Ade travelling in the car without a seatbelt and therefore caused the car to be stopped whereupon Ade was issued with a Fixed Penalty Notice.  As Ade walked away, he allegedly shouted “Get ready for a race comment”.  There was according to the officers no search under S23 MDA.

A short time later, Ade allegedly ran up to the front passenger window of the van in which the officers were travelling waving the Fixed Penalty Notice and shouting “I want all your fucking numbers now”.

PC B got out of the van and explained to Ade that his details were at the bottom of the Fixed Penalty Notice.  Ade was said to be irate, so much so that one of his friends came over to calm him down.  Ade responded, “Fuck off lad, I’m getting these officers numbers”.  There were members of the public in the vicinity including children who were clearly shocked by Ade’s behaviour and he was accordingly warned to desist or be arrested.  In response, Ade squared up to PC C and came within an inch of his face and said “Why? Little man, what are you going to do?”  PC C felt threatened and so grabbed hold of Ade and forced  him up against the side of the van.  He was handcuffed and arrested for breaching Section 5 POA before being conveyed to the nearest Police Station where he was processed and then released within a few hours having been issued with the second Fixed Penalty Notice for public disorder.

Although Ade challenged both Fixed Penalty Notices and expected to be prosecuted, Merseyside Police in fact took no action despite his alleged criminality.

I strongly believed that Ade was telling the truth and with my assistance, he brought a claim against Merseyside Police for false imprisonment, assault and battery and misfeasance in public office.

Whilst investigating the claim, I established that several members of this particular ‘Matrix Unit’ (set up to fight drug related gun and gang crime) were the subject of a misconduct investigation by the force’s Professional Standards Department.  In short, the clear implication was that these rogue officers had abused their powers on this and other occasions.

Following the issue of Court proceedings, Ade ultimately recovered £32,500 damages plus his legal costs.   Although he was detained for a relatively short period of time (just under 2 hours), the initial stop and search, arrest and then detention had a massive disruptive impact on his life.  He missed out on a promotion at work and he suffered a post traumatic reaction that necessitated a course of counselling.

I think this is another shocking case of Police abusing their powers.  Here, after an unlawful (and probably racially motivated) stop and search of Ade, the officers escalated the situation by ‘fitting him up’ for an offence he had not committed (albeit a minor one) and then arresting him, quite frankly, because he had the temerity to complain about his treatment.  Thankfully, Ade’s example shows that with personal determination and the right legal help, justice can be done.

I have talked in my first two articles in this series about Police powers to stop and search members of the public under Section 1 of PACE 1984 (power to stop and search when there is reasonable suspicion that a person is carrying stolen/ prohibited articles or knives/blades), Section 23 of the Misuse of Drugs Act (when a person is reasonably suspected by the officer of being in possession of controlled drugs) and Section 60 CJPO 1994 (Powers to stop and search in anticipation of, or after violence, but without any targeted suspicion about the actual individual being searched)

A closely related power is also granted to Police officers under S60AA of the Criminal Justice and Public Order Act 1994, which allows a constable in uniform to require the removal of (and subsequently confiscate) ‘any item which the constable reasonably believes that person is wearing wholly or mainly for the purposes of concealing his identity’.

The power is only exercisable if authorisation has been given to the constable by a senior officer of Inspector rank or above. Similar to the stop/search power granted by Section 60 this is a power which enables an officer to interfere with a private citizen going about his or her business in an entirely lawful manner – it is certainly not against the law to wear a mask, hood, or other concealing headgear in public per se, and does not require the officer to have a reasonable suspicion that the person targeted is committing a criminal offence.

Sections 60 and 60AA of CJPO are generally powers used when officers are policing a large public gathering, march or demonstration, and fear that criminality might be about to occur by individuals disguising their identity. In this sense, they are pre-emptive rather than reactive powers, and can be used to target individuals on the basis purely of where they are, rather than what they are doing.

And once again it is a quite draconian power, interfering with normal civil liberties without any evidence of criminal intent at all on the person being required to submit to the power, and as such its use must be carefully monitored and controlled by the Police; there is plenty of opportunity for such a power to be misused either deliberately or accidentally by officers who either do not know, or do not care about the lawful extent of their powers in the ‘heat of the moment’.

The right of citizens to lawfully assemble and peacefully protest is enshrined in the UK’s unwritten constitution, the Common Law, as long as there is no threat of violence or any complete obstruction of a public highway, as it is in the USA’s written version and the European Convention on Human rights; and this right can come into conflict with the rights Police officers have, or believe that they have, under the CJPO and other Acts of Parliament.

Several years ago I acted on behalf of Mrs White (then aged 67) who was involved in a ‘Stop the War’ protest Manchester against the British and American invasion of Iraq.

During the lawful procession through Manchester Mrs White wanted to highlight the financial and human cost of the war. To this end she had had made a banner-sized Bank of England ‘cheque’ payable to ‘Oil Companies and Arms Industry’ which bore as the sum paid to text ‘Twelve billion pounds, the blood of one million Iraqis and the deaths of 300 British soldiers’. To make the political point that responsibility for the war in Iraq lay with the then Prime Minister the ‘cheque’ was signed ‘Gordon Brown’; In addition, Mrs White had also purchased a fitted rubber mask of Gordon Brown (‘the mask’) for theatrical effect and to emphasise her political point. In the many years of campaigning against the war on Iraq (and on Afghanistan) Mrs White had noted an ever greater need for creativity and innovation in order to attract the attention of the press and public. By wearing the mask and having the large ‘cheque’ on display she hoped that the aims of the Stop the War Coalition would be more readily reported by the press who, she hoped, would photograph her using such props for visual and political effect.

In full view of numerous police officers Mrs White had photographs taken of the cheque and of herself and others wear the mask. Not one officer made a comment, still less any complaint, to Mrs White or anyone else regarding the wearing of the mask. No officer suggested that the mask should not be worn at the procession.

Mrs White was a steward for most of the procession which passed peacefully along Oxford Road towards the Manchester Central Exhibition Centre (then ‘G-Mex’) in the city centre. While Mrs White was acting as a steward she wore a fluorescent yellow printed vest identifying her as such and other protestors wore the mask which still attracted no comment or complaint from any officer to anyone who wore it.

The procession was permitted to approach and stop outside the said Exhibition Centre where the Labour Party was holding its annual party conference.

In front of Mrs White at the head of the procession was a line of members of the group ‘Military Families Against the War’, mainly mothers whose sons had been killed in the war on Iraq or on Afghanistan. Rose Gentle, the well-known peace campaigner was part of the group.

Facing the military families and other protestors was a line of police officers who had in effect halted the procession, which was at the time quiet and orderly.

Mrs White (now wearing the Gordon Brown mask) went forward to include Rose Gentle’s husband in an invitation given earlier that day to stay at Mrs White’s home when she was next in Liverpool. Mrs White then moved to return to her original position. She walked away from her friend and was stopped by a female police officer who told her without giving any reason or explanation to take the mask off.

Mrs White asked why and stated that she did not think that it was against the law to wear a mask.

Mrs White was fortified in that view by the fact that at an earlier stage of the procession a police officer had asked her to remove the mask. She had asked why. The officer had replied “I’m not going to make a song and dance about it” and had walked away. Plainly, that officer had seen no reason to believe that he was entitled to remove the mask or that it would have been reasonable or proportionate for him to do so. In this earlier encounter, this officer had apparently accepted that she wished to continue wearing the mask and had made no attempt to dissuade her from doing so.

Now when Mrs White stated outside the Exhibition Centre that she did not think it was against the law to wear a mask, the Officer confronting her replied “It is today” despite the fact that Mrs White had worn the mask in full view of police officers on several occasions throughout the day.

Mrs White, thinking lightly of the matter, politely asked if she could see that in writing and explained that she had bought the mask on E-bay. Mrs White also observed that “It’s a free country and if I want to wear a mask I will”. During this very short conversation, Mrs White was not in the least agitated, angry or confrontational.

Without warning or explanation the officer then grabbed the mask and began to pull it with a firm grip of Mrs White’s hair underneath it. Mrs White was plunged into darkness and became disorientated. She was dragged a number of yards away from the body of the demonstration where she was pushed and pulled very roughly to the ground by this police officer and others. Mrs White felt a number of hands on her body. The mask was a tight fit and as such could not be easily removed. Police officers continued to pull at the mask and tear it from her head.

Mrs White held onto the mask in an instinctive reaction to the unexpected attack and the pain she was experiencing while the mask was being pulled from her head and her hair was being pulled with the mask.

Mrs White felt pain to her neck and to the base of her spine while this force was applied to her and again when she landed on the ground.

While Mrs White was sat on the ground at least two female officers were shouting at her in a very aggressive manner.

Mrs White, still on the ground, did not submit to the unlawful order to “Let go of the mask” which was shouted at her by one of the officers. That officer or one of the others called her a “Stupid woman”.

Officers then succeeded in forcibly removing the mask from Mrs White’s head.

No officer helped Mrs White get up from the ground or showed any thought for her wellbeing. Mrs White, shaking, angry and humiliated, immediately began to try to discover the identity of the officers who had pulled her to the ground so that she could make a formal complaint. She approached the line of officers ahead and asked for the names of those who had used force upon her. Police officers laughed at her and ignored her requests for information. Quite an act of hypocrisy by the guardians of the law who had in effect assaulted her to get her to reveal her identity.

Mrs White addressed the line of police officers stating in terms that they should be ashamed of themselves “To throw an old woman to the ground for wearing a bloody mask for God’s sake”. Mrs White could not believe that the police could treat anyone as they had treated her for wearing a comedic mask.

Mrs White avers that if she had been told or forewarned that if she did not comply with the request to remove the mask it would be ripped from her head then she would have voluntarily removed it.

At no time did any officer mention to Mrs White that the police had a power to forcibly remove masks or face covering or explain to Mrs White the authority to exercise such power and the officer’s note book entry suggested a misunderstanding as to the nature and extent of her powers. The officer recorded that ‘the Section 60 was in place and all facial coverings had to be removed’. (my emphasis) This therefore suggested that the officer believed that the mere wearing of a mask , absent any other reason, would be sufficient to give her the power to remove it.

I therefore argued that removal of the mask was unlawful because Mrs White was not acting in a manner which could activate the power under Section 60 CJPO 1994 –

Mrs White was not wearing the mask in order to conceal her identity.

No reasonable officer could have believed that Mrs White was wearing the mask for that purpose.

No officer claimed in any document to have believed that the intention or purpose of Mrs White in wearing the mask was to conceal her identity.

At numerous stages of the demonstration before its arrival outside the Labour Party Conference Mrs White had been seen wearing the mask for obvious theatrical and political effect.

Throughout most of the demonstration no officer objected to the wearing of the mask.

Throughout most of the demonstration no officer attempted to remove the mask.

Throughout most of the demonstration no officer suggested that at any future point in the demonstration the mask would have to be removed.

Given the circumstances, I advised Mrs White to pursue a claim for assault and battery. Following the issue of Court proceedings and only a short time before trial, I am pleased to report that Greater Manchester Police conceded that the officers had been wrong to remove the mask. They provided a detailed apology, substantial damages and paid Mrs White’s legal costs.

Here once again is a classic example of the Police breaking the law by not understanding, and in fact abusing, the extent of their powers to interfere with a citizen’s public business.

In Part 1 of this article, I wrote about Police powers to stop and search that required reasonable suspicion.  

There are also powers to stop and search that do not require reasonable suspicion, in particular under Section 60 of the CJPOA 1994. 

Searches under the Criminal Justice and Public Order Act 1994

The Criminal Justice and Public Order Act 1994 provides:

 “ (1) Where a police officer of or above the rank of superintendent reasonably believes that –

(a)    Incidents involving serious violence may take place in any locality in his area, and

(b)   It is expedient to do so to prevent their occurrence he may give an authorisation that the powers to stop and search persons and vehicles conferred by this section shall be exercisable at any place within that locality for a period not exceeding twenty four hours.”

This authorisation may be given for a period of 24 hours (renewable for a further period of 24 hours).  If such an authorisation is given it 

“(4) ….. confers on any constable in uniform power – 

(a)    To stop any pedestrian and search him or anything carried by him for offensive weapons or dangerous instruments;

(b)   To stop any vehicle in order to search the vehicle, and its driver and any passenger for offensive weapons or dangerous instruments.

 (5)  A constable may, in the exercise of those powers … stop any person or vehicle and make any search he thinks fit whether or not he has any grounds for suspecting that the person or vehicle is carrying weapons or articles of that kind.”

 In a recent legal publication, Legal Actions; ‘Police Station Update’ April 2016, the author, a well respected former solicitor, Professor Ed Cape asserted that “assuming that authorisation has been validly granted, given the fact that an officer does not require suspicion in order to carry out a stop and search, in a S60 designated area, it will be almost impossible for a person aggrieved to sustain a successful civil action or complaint against the police.  Establishing that a stop and search was motivated by an unlawful reason will be almost impossible.” 

‘Almost impossible’ is not the same as ‘impossible’ however as my client, Derek Odogwu proved in a successful action against Merseyside Police.  

One sunny morning in August, Derek left home and drove to work.  At the time he worked for the Highways Department. Mr Odogwu parked up in his usual spot and as he got out of his car, a marked police vehicle pulled up close by and two officers, PCs Archer and Bousworth, got out to speak to him.  They had also stopped and questioned Mr Odogwu in the city centre only 5 days earlier.  On that occasion, Mr Odogwu had been asked whether he was the owner of the car and where he was going. 

Once again, Mr Odogwu was asked whether it was his vehicle and where he was going.  Mr Odogwu understandably formed the impression that he was being harassed and informed the officers (as they already knew) that they were asking him the same questions which they had posed and he had answered 5 days earlier.  He said that he saw no point in answering their questions again.  Mr Odogwu correctly indicated that he was late for work and wished to proceed.  Ignoring this, Mr Odogwu was asked where he worked and he advised the officers that he worked in the Highways Department. The officers told him that they wished to search his vehicle, which they then did.  It was at this point that the officers advised Mr Odogwu that he had been stopped because he had previously been arrested for rape and because he was “a danger to women.”  Mr Odogwu was asked whether his employers were aware of this. Mr Odogwu accepted that he had been arrested but asserts that he was innocent and that no charges had ever been brought against him. 

The officers then said to Mr Odogwu that they had “information on him” and that they had been following him. It was at this point and during an inspection of the vehicle that one of the officers found Mr Odogwu’s taxi plates (Mr Odogwu was a licensed taxi driver at the time).  The officers then asked Mr Odogwu as to whether the local taxi authority had been advised of his arrest for rape. 

Yet again, Mr Odogwu was asked for his full details.  Mr Odogwu explained that he had given his details to these very same officers only 5 days earlier.  As a black man of Nigerian descent with an unusual surname, Mr Odogwu was of the opinion that there could be no doubt in the minds of the officers that they had indeed asked him these very same questions only 5 nights earlier. Nevertheless Mr Odogwu was told that if he refused to provide the information he would be arrested.  Mr Odogwu provided his personal information once again and this information was radioed through to the Police Control Room. After several minutes, Mr Odogwu was advised that he was free to go but that he was obliged to advise his employers of the rape allegation.  At this, Mr Odogwu was given a stop form and released.  The stop form issued indicated that the reason for the stop was ‘taxi plate _____ badge no _____, searched under Section 60 of the Criminal Justice Public Order Act (CJPOA) 1994.” 

With my assistance, Mr Odogwu filed a complaint and in response, the officers provided a statement.  

The officers accepted that they had initially seen Mr Odogwu driving around the city centre and were suspicious that he was operating as an unlicensed taxi driver. 

Five days later, the officers were on duty and ‘received information’ that Mr Odogwu’s car was in the area. PC Archer confirmed that he wished to make further enquiries as regards his suspicions. 

The officers spotted Mr Odogwu’s vehicle and him alighting from it.  They stopped and spoke to Mr Odogwu.  Both officers were aware that authorisation had been granted under Section 60 CJPOA 1994 to cover stop/searches for that particular area and at that time. 

In the circumstances the officers searched Mr Odogwu’s vehicle and found taxi plates and door stickers as well as a valid taxi licence and receipt book.  The officers recall as to the nature of their conversation with Mr Odogwu was very different to Mr Odogwu’s and they maintained that they asked different questions to those asked on their previous encounter. 

On investigation, I established that at this time and locality, a Superintendant had indeed granted a Section 60 authorisation. On this basis, the officers did not need reasonable suspicion to stop and search Mr Odogwu or his vehicle. 

However, the officers had clearly stated that their decision to search was due to a suspicion that Mr Odogwu was an unlicensed taxi driver.  They did not claim to have stopped Mr Odogwu to search for “offensive weapons or dangerous instruments” which is the power granted by Section 60.  There was therefore no lawful justification for the stop and search. 

Mr Odogwu, although not arrested on suspicion of any offence, was nevertheless subjected to a complete deprivation of liberty without lawful authority in that: 

1.      The officers conveyed to Mr Odogwu by their words and actions, and Mr Odogwu believed, that he was obliged to submit to their authority and was not free to come and go as he pleased for the duration of the stop and search.

 2.      The officers expressly indicated to Mr Odogwu that he was free to go only at the end of the stop and search.

 3.      The officers asserted at the material time that Mr Odogwu had been stopped because he had previously been arrested for rape and because he was “a danger to women”. Such a purported reason for the stop and search, even if genuine, disclosed no justification in law for the same.

 4.      Only after the stop and search did the officers purport to rely upon the Act but in fact it provided no lawful justification for the stop and search.  Sections 4 (b) and 5 of the Act provide a power only to stop and search ‘for offensive weapons or dangerous instruments’. The officers stated reason for the search was due to suspicion that Mr Odogwu was an unlicensed taxi driver, which was not a power granted to them by the Act. 

5.      The stop and search did not have any other lawful justification.

 In the circumstances the search of Mr Odogwu’s vehicle amounted to a trespass to goods/unlawful interference with goods and Mr Odogwu was unlawfully detained (for about 45 minutes). 

I am pleased to report that although Merseyside Police initially dismissed his complaint, they did, after I brought Court proceedings on Mr Odogwu’s behalf admit liability for both trespass to goods and false imprisonment and compensated Mr Odogwu for the inconvenience, injury to feeling and loss of liberty caused. 

What this case shows is how police officers can act unlawfully by not understanding the full scope and limitations of their powers.  Incorrect vetting and supervision can allow some officers to abuse their power deliberately, lack of proper training/education can cause other officers to exceed their power unknowingly.  Hopefully this case will have proved a salutatory reminder to Merseyside Police to ensure that their officers are taught what rights they have to stop/search people, and when those rights come to an end, to ensure that similar wrongs are not committed. 

I also reflect upon the fact that, just as in the case I discussed in the first part of this series, the person subjected to any unlawful stop/search by the police, was a black man.  It is sadly hard to avoid the conclusion that skin colour appears to remain in the eyes of many police officers, an indication of criminal intent.

All names changed.

At the recent Conservative Party Conference, the Prime Minister asserted (amid coughs and splutters, falling set design and a prankster brandishing a P45) that since 2014, government action meant that “the number of black people being stopped and searched has fallen by over two thirds”.

Whilst the number of black people being stopped and searched by the police has indeed fallen by two thirds, this is in fact since 2010-11 and not 2014.

Furthermore, the sad fact is that black people are still four times more likely than white people to be stopped.

The Metropolitan Police Commissioner recently went on record to defend the continuing use of stop and search and the Home Secretary later added her support saying that “we have given the police the powers they need and officers who use stop and search appropriately, within reasonable grounds and in a targeted and intelligence led way, will always have my full support.”

So what are these powers?

As is often the case, the powers available to the police to stop and search persons and vehicles are myriad.

Most – but significantly not all – are circumscribed by the requirement that there be reasonable suspicion that something prohibited will be found.  This will usually be under Section 1 of the Police and Criminal Evidence Act 1984 (PACE) – stolen or prohibited articles or certain articles with a blade or sharp point – or Section 23 of the Misuse of Drugs Act – controlled drugs.

Section 2 of PACE provides safeguards which govern the exercise of all but one pre-arrest search power (the only one exempt is Section 27 of the Aviation Security Act) namely that for a search to be lawful the officer must take reasonable steps to provide the following information:

a)His/her name and police station;

b)The object of the proposed search;

c)His/her grounds for the search; and

d)The availability of the search record at any time within the preceding 12 months.

The officer conducting the search is also required to create a search record recording the object of the search, the grounds for making it, date, time and place of conduct, whether anything was found and if so what, and any injury or damage to property which resulted.

The requirements of S.2 are strictly applied; if the officer does not comply, the stop and search will be unlawful.

An unlawful stop and search will almost inevitably give rise to a claim for false imprisonment (ie for the period of time that the individual is detained) and assault and/or battery (in respect of the apprehension and/or application of physical force) which can then lead to an award of compensation.

Here’s an example of a case that I concluded recently against the Metropolitan Police.

My client, Kaleb Godwin and his younger brother Santiago (both black males) were walking along a road in East London.  Santiago was going to a fancy dress party.  He’d borrowed some crutches from Kaleb and was going as a man who’d broken his leg.  As they got to a convenience store, Kaleb went in to get a drink.  As he was doing so, 2 PCSOs who had been following the pair, approached Santiago and began to quiz him as to why he was carrying crutches (given that according to the officers he had no discernible reason as to why he should have them).  Santiago explained that he was going to a party.  Kaleb came out of the store and challenged the officers as to their actions, explaining that the crutches were his and that his brother was going to a party. Kaleb took the crutches from his brother.  He accepts that he was annoyed and that he said, “What?  Is it a crime for a black man to be carrying a pair of crutches?”  The officers said it was suspicious but failed to explain why.

As a side note, it does beg the question why a person carrying crutches should raise more suspicion than a person carrying other items that they have no apparent use for, but I digress.

Kaleb was outraged.  He knew neither he nor his brother were carrying drugs and told the officers to “search the fucking crutches then”.

The PCSOs called for backup and told Kaleb that he was detained pending their arrival.  Kaleb continued to swear repeatedly saying “Search the fucking crutches”. When the officers refused, Kaleb sought to walk off but in response, one of the officers grabbed his arm to which Kaleb replied “Don’t fucking touch me”, and again, “Search the fucking crutches”.

After about 10 minutes or so, 2 police constables arrived, PC Woods and PS Hamilton.  The officers conferred with the PCSOs.  PC Woods was asked to search Kaleb because it was believed that he had drugs secreted on him or inside the crutch notwithstanding, as PC Woods later admitted, that crutches being used to conceal drugs “was a new one for him”.  PC Woods explained to Kaleb that the PCSOs believed he may have drugs on him, provided his details, what station he came from and how Kaleb could have a copy of the search record at the end.

By this stage, a group of people had gathered to watch events.  Both Kaleb and his crutches were searched under S.23 Misuse of Drugs Act and nothing incriminating was found. One of the PCSO’s began to write out a form which Kaleb believed to be a stop and search form which was then handed to him.  On checking however, Kaleb discovered that he’d been handed a fixed Penalty Notice for breaching Section 5 of the Public Order Act.  The officers then left without issuing a stop and search form because (they later asserted) to do so was impractical because of concerns that their continued presence was creating ‘a situation’.

Of course it is blindingly obvious that if the officers were able to issue a Fixed Penalty Notice for minor disorder, surely they were also able to issue a stop form, but they did not.

On review, the following issues were relevant to establishing liability for both false imprisonment and assault/battery.

1. Under paragraph 2 of Schedule 4 of the Police Reform Act 2002, a PCSO has power to detain a person when they have reason to believe that person has committed a relevant offence and who fails to comply with the requirement to give their name and address.  ‘Reason to believe’ is of course a higher threshold than ‘Reason to suspect’.  In other words, it was not sufficient for the PCSOs to suspect that crutches could contain drugs; they needed information to indicate that Kaleb’s crutches did contain drugs.  Accordingly, there was no legal power for them to detain and physically restrain Kaleb from leaving.

2. For the search of Kaleb to be lawful, PC Woods had to (as well as complying with Section 2 PACE) establish that he himself had reasonable suspicion that Kaleb was in possession of a controlled drug. Just because the PCSO told him of their suspicions was not good enough.  Accordingly, the search was unlawful.

In all, Kaleb was detained for approximately 15/20 minutes. He suffered no physical injury as such, but certainly did suffer insult to his feelings, being left with a hurtful sense of injustice on the basis of racial bias.

After a lengthy complaint process, I am pleased to confirm that, despite as usual making no formal apology or admission of liability, the Metropolitan Police were clearly persuaded by my argument that Kaleb had been unlawfully detained and assaulted and agreed to pay him £2,200 damages plus legal costs.

As is so often the case, Kaleb remains dissatisfied.  He believes that he and his brother were stopped because they are black. Such an assumption is understandable because there appears no other reason for the stop.

Whether the stop was conducted because of racial discrimination or not, the impression that Kaleb and his brother have is that the PCSOs were motivated by discrimination, whether conscious or unconscious and that they were targeted unfairly.

I leave you with a quote from the Editorial of the Times in April 2017; “Stop and search is an incendiary policing tool if not used with care….in practical terms the damage such apparent unfairness inflicts on community relations can eclipse any improvement in public safety”.

All names changed.

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Cases which go to Trial are by definition the most difficult to win; those in which your opponent thinks he has the best chance of success, refuses an out of Court settlement, and throws all of his resources – massive resources in the case of a Police Force of course – into defeating the Claimant; a real David and Goliath conflict.  For those cases to be pursued to a successful conclusion, it is essential for my clients and myself as their lawyer to have the courage and belief to see the fight through until the end, no matter what is thrown at us by the Police in every attempt to frustrate the course of justice.

My most recent victory was especially satisfying as my client had suffered so much as a result of Police abuse/ misuse of their powers, and had shown tremendous courage not to run away and hide but pursue the case even as far as the often traumatic experience of having to re- live events in front of a Jury whilst being subject to hostile cross- examination from a Police barrister.

In the case in question, my client, Hayley Cunningham (details used with permission) and her husband, both hard- working teachers, had in May 2012 an opportunity for a rare night out together to celebrate her birthday, with grandparents looking after the kids. After enjoying a meal, during which time Hayley had only four glasses of alcohol, they commenced their journey home by underground train. Unfortunately, on reaching the platform they were advised by a station employee that they had missed the last train, and would have to catch a cab instead; my client and her husband were unfamiliar with the train station.  Hayley’s husband opened the nearest exit door.

The staircase in which my client and her husband found themselves was steep and poorly lit; they had to ascend over 160 steps to reach the main station concourse at ground level. Unexpectedly having to climb 160 steps would be an exhausting task for even the fittest amongst us, let alone Hayley who, naturally tired at the end of an evening out (which had followed a busy ‘end of term’ day in school), also suffered from a form of Lupus and from Raynaud’s disease, conditions which cause her to suffer episodes of joint pain, fatigue, low blood pressure and dizziness. It appears that just such an episode was brought on by the exertion of Hayley’s climb; by the time she neared the top of the stairs she was breathless and dizzy, and had to sit down to rest, her head ‘spinning’.  Hayley’s husband continued the short distance up to the concourse, to get help.

Unfortunately, the ‘help’ which Hayley’s husband encountered was in the form of PC T of the British Transport Police. PC T returned with Hayley’s husband to find her short of breath and in obvious distress, sitting down in the stairwell, but rather than approaching her with care and compassion the Officer was immediately aggressive and confrontational, accusing Hayley of being “inebriated”. Refusing to listen to her explanation of the situation, PC T spoke over Hayley in a rude and demeaning way.

Hayley managed to get to her feet and struggle up the remaining steps unaided, but on stepping out onto the brightly lit concourse, felt faint and dizzy once more and had to sit down, her vulnerable condition now being severely aggravated by the fact that PC T was berating her for alleged drunkenness and was trying to chase her out of the station on the grounds that it was closing soon, rather than simply allowing her a few moments to get her breath back. Hayley was understandably appalled by the Officer’s behaviour and spoke up to protest about his attitude – though at no point did she swear or use foul language. She managed to get to her feet again, reproaching PC T for his rudeness and trying to explain about her medical condition, to no avail. In any event, Hayley  and her husband were now making their way towards the station exit, and were only a short distance from the door when, possibly in response to hearing Hayley state that she was going to report him for his unprofessional behaviour, PC T escalated the situation beyond the bounds of common sense by producing a pair of handcuffs and proceeding to chain my helpless client’s hands together announcing to his colleague “She’s winding me up now, I’m arresting her.”

Hayley was in a state of total shock, distraught and sobbing. Her husband’s protests were to no avail as PC T and his colleague bundled her into a police car and drove her away, with her wrists in severe discomfort from the tightness of the handcuffs, which, even had there been justification to arrest her, were totally unnecessary. At no point had Hayley been violent or aggressive. Indeed, when I subsequently reviewed the CCTV footage from the station concourse I was shocked at PC T’s aggression towards Hayley given the massive disparity in their size and strength.  Hayley is a slightly built woman, only 4 foot 11 inches tall, whilst PC T, over 6 feet in height, looms over her, encased in his body armour. His use of any force against her was completely unjustified.

And so too was her arrest – PC T did not even inform Hayley what she was being arrested for, although we now know it was for alleged “drunk and disorderly” behaviour.

Hayley described her feelings at this point as follows –

“By the time I arrived at the Police Station I was shaking. I couldn’t breathe, it was as if I wasn’t in my own body, I just lost it. I was fading in and out of reality”

Hayley now faced the extremely traumatic experience of being processed in a police station as a suspected criminal, subjected to the indignities of a body search and being stripped of her possessions, before being locked, feeling isolated and intimidated in a cold and dirty cell (the toilet roll was floating in the toilet bowl). Her wedding ring and her dress had been taken away from her, and she was forced to wear an ‘all in one’ paper body suit. For a woman of impeccable character, with no previous experience of the criminal justice system, this was all the more traumatic.

Eventually, having been incarcerated all night, Hayley was released from custody the following morning. Prior to her release, the police asked her to accept a “fixed penalty notice” for drunk and disorderly behaviour – which she absolutely refused to do. She knew she had done nothing wrong; but this was the first point at which Hayley ‘s courage and strength of character were put to the test, for she knew that by standing up for what was right – and indeed she was brave enough to do that now, even after the mental torment of being imprisoned in a cell all night in humiliating and degrading conditions – she was exposing herself to a prosecution in the Magistrates Court at which she had every fear PC T would tell lies about her behaviour and try to deceive the Court .

Hayley made this decision to fight for justice, knowing full well that she and her husband would now face many months of litigation leading up to trial and that the trial itself would be a very stressful event likely to put even more pressure on her fragile state of health. She was aware she would not qualify for Legal Aid. She was aware that if she was ultimately convicted this could severely damage her career as a teacher, as the conviction would show up on an enhanced CRB certificate.

In my Hayley’s own words –

“The easy way out would have been to simply accept the notice and pay the fine. However, I was brought up with a strong conviction of what is right and wrong. My arrest was wrong. I was determined to fight”.

A Long Fight for Justice

Some six month after my Hayley’s arrest, her case went to trial at the Magistrates Court. The whole process of preparing for and then attending the trial was incredibly stressful for Hayley and there were times when she felt understandably overwhelmed and physically sick.

She felt as though her personality had been altered as a result of this incident; she found herself to be much more anxious at home and in work, and vulnerable to panic attacks, when previously she had always prided herself on being a strong and confident person. She had to take time away from work, and felt that she was letting down her colleagues and pupils as a result. Nevertheless, she fought on.

It became clear that PC T was going to maintain the lies he had told about Hayley, and was going to claim that she was drunk and had sworn at him, all of which she denied.

On the day of the trial itself, Hayley’s resolve was tested once again when the CPS prosecutor offered to discontinue the proceedings if she accepted a “bind over” (to be of good behaviour or to keep the peace). If she accepted, she was advised that no conviction would be recorded. Her own Barrister, who in fairness had only been instructed the night before disappointingly seemed to lack conviction in her case, and recommended that Hayley accept. She refused, knowing she had done nothing wrong and determined that PC T should not get away with what he had done. The trial went ahead and I will let Hayley tell you the result in her own words-

“After evidence, the Magistrates retired before returning to declare that I was not guilty.  I was so relieved.  I was tearful and emotional”.

But this was just the beginning of her fight for justice. Hayley had not given up, she hadn’t taken the ‘easy’ options – even when alone and vulnerable in the police station, even when advised by her barrister to take the ‘bind over’ – and she had cleared her name. But she knew she was still entitled to restitution, and she could have no proper sense of justice until she had held PC T to account for his actions. It was time for her to turn the tables and put him on trial.

The next step Hayley took, therefore, was to lodge a formal complaint with the British Transport Police about PC T’s behaviour. She was visited by an officer from the Professional Standards Department and gave a full statement about what had happened. The officer took this away, and an investigation was commenced; 6 months later, to Hayley’s total dismay, she received a 14 page report from the Police rejecting her complaint and totally exonerating PC T.

This was very much a case of hurtful insult being added to a deeply felt injury. Hayley was at this time still struggling to come to terms with the enormity of what had happened to her – locked in a police cell and dragged to court to face charges that could have wrecked her professional career – and already felt that she was no longer the person she had been before this incident. In her own words-

“I did not feel like me anymore, that somehow I had been stolen”.

Hayley’s sense of self worth, her pride and confidence, her relationship with her husband, children and friends were all affected by this shadow hanging over her. Although she had been found not guilty at trial, she couldn’t stop thinking about the injustice of what PC T had so casually and arrogantly done to her, and now – with the dismissal of her complaint by the PSD – it felt as though he had ‘won’ again, and all the bad feelings came back. Hayley continued to feel degraded as a person, and now almost gave up – burying her head in the sand and trying to forget about what had happened. This did not ultimately make her feel any better however; she was just bottling up these very hurtful feelings.

Hayley had in fact already contacted me about bringing a claim, but when the PSD report arrived, she was so demoralised that she almost gave up on the case, failing to answer my letters or telephone calls.

For many months I had no contact from her, but I did eventually resume contact and persuaded her to continue.

Notwithstanding the complaint findings, I knew from the papers I had seen that Hayley had a good case, and furthermore, I knew that she was an honest and truthful person who had suffered badly as a result of Police misconduct and deserved to see justice done. I also knew what she did not, from years of long experience, that Police internal complaint investigations are almost invariably biased in favour of the Officer being complained about and their raison d’etre is not a full and frank, impartial investigation into the facts – but an exercise in looking for excuses to cover up Police wrongdoing and let the guilty Officer off the hook.

For that reason, unlike my client, I knew the complaint report probably wasn’t worth the paper it was written on, and the fact that her complaint was dismissed certainly did not mean a claim in the civil courts, heard by a jury of her peers, would be.

Court proceedings were commenced and I set about obtaining medical evidence in relation to the psychological effects of this incident upon Hayley. When the proceedings were served upon the solicitors acting for the British Transport Police, we received no concession or offer of compromise to settle the case, but rather a bold and challenging letter making it clear that BTP intended to fight the case ‘tooth and nail’ all the way to trial –

“We have no doubt that your client is a highly regarded and respectable member of the community…………  However, on the evening of 25 May 2012 and during the early hours of 26 May 2012 your client had too much to drink whilst celebrating her birthday and acted in an uncharacteristic manner which was not befitting of an individual who does so much for her local community. 

Our client has no offers of compensation to make and liability is strongly denied.  Your client’s arrest was lawful and this matter will be vigorously contested. 

Given the strength of our client’s defence ……………… we will seek to enforce our client’s costs against your client in the event that this claim is continued.  If your client pursues a claim for psychological injury then we will regard this as a fraudulent exaggeration.”

With my encouragement and advice, Hayley was strong enough not to be put off by the Police lawyer’s ‘hard ball’ attitude and persevered despite the numerous besmirchments of her honesty and integrity which the Police threw at her as the case continued.

Whilst we had obtained medical evidence from an expert psychiatrist who confirmed that Hayley had suffered Post Traumatic Stress Disorder, the Police appointed their own psychiatrist who disagreed and did his best to play down the seriousness of her symptoms, arguing that she had only suffered a more minor ‘adjustment disorder’. Hayley felt that the Police psychiatrist had not listened to her properly, and his report contained a high number of factual mistakes, which were never corrected. Nevertheless, she persevered.

The solicitors acting for British Transport Police even went to the length of snooping on Hayley’s Facebook pages and putting together a dossier of social media posts – all from several years after the incident in question – in an attempt to ‘discredit’ her. Whilst Hayley and I were deeply disappointed by the Police lawyer’s invasion of her privacy in this manner, neither of us were concerned about what the Police had ‘found’. It was simply a number of posts – all years after the event- relating to Hayley participating in exercise classes. Nothing out of the ordinary at all; just run-of-the-mill (or should that be treadmill?) group fitness classes, which my client had participated in, in order, partly, to help build up her social confidence and mental health after the terrible effects of her arrest, imprisonment and prosecution. The Police were, in my opinion, quite unscrupulously, now trying to use these ‘posts’ to suggest that Hayley’s dizziness at the top of the railway station steps must have been due to drunkenness rather than constitutional/ health reasons – as if her ability to participate in a planned exercise class (‘on the flat’ in a gymnasium) years later had any relevance to how she was after climbing 160 stairs years before! It was palbable nonsense – but showed the lengths the Police were prepared to go to in order to frustrate Hayley ’s claim, and demoralise her.

But they failed entirely in that attempt; Hayley was not demoralised, but rather further energised by their unscrupulous antics, to fight on for justice. Indeed, I was then able to get the ‘social media’ evidence thrown out at a pre- trial hearing by the Judge, who quite rightly rejected it as irrelevant to the case. Still, the Police did not back down, but neither did Hayley, who after all she had been put through, including now almost 2 years of litigation in the civil courts was more determined than ever to hold the Police to account – and that meant not only PC T, but the whole organisation of the British Transport Police who seemed so determined to shield their Officer and to continue to try to oppress and humiliate Hayley, despite the clear evidence, in my opinion, that she was in the right. As we prepared for trial, Hayley had these words to say –

“I wonder how many people do the police do this to who can’t fight because they’re not strong enough or because of their past.  I feel it is right that I challenge the conduct of PC T on my behalf and for others. My husband and I had committed no crime. We were treated with rudeness and contempt when, if anything, I just needed a few kind words and a moment or two to get myself together. We were on our way out of the station causing no harm to anybody when I was arrested. It was all so unnecessary.”

Putting the Police on Trial

Hayley ‘s claim for compensation against British Transport Police finally went to trial at Liverpool County Court in June 2017. Again, the Police made it clear they had no intention of backing down. Hayley bravely relived the trauma of the experience of her arrest on the stand, and despite being brought to tears by the many unpleasant memories this stirred up, answered the Police barrister’s cross- examination with honesty, integrity and clarity.

Then, after PC T himself had given his evidence, on the fourth day of the trial, we applied for summary Judgment – on the grounds that PC T’s testimony that it was necessary to arrest Hayley “to prevent an offence against public decency” could not, on any reasonable analysis of the evidence, be true. It is not enough for an officer to honestly and reasonably suspect a person to be drunk before arresting her. The person must be behaving in a disorderly manner, not merely ‘drunk’, and furthermore – and crucially – the officer must have an honest and reasonable belief in the necessity to arrest that person, and to deprive them for however long of their liberty, and subject them to imprisonment, as opposed to dealing with the suspected offence by less draconian means.

Here PC T’s case was that Hayley simply had to be arrested to prevent an offence against public decency  – yet he had made no such allegation in his notes at the time of arrest, or when delivering Hayley to the custody sergeant in the police station, nor during the criminal prosecution of her. The first time he had made this assertion was in May 2017 as part of his defence to the claim brought by Hayley.

The criminal law guidelines in Archbold and Halsbury Law both define “offences against public decency” as being grossly scandalous behaviour described as “offending and disgusting”. Even on the Officer’s account of Hayley swearing at him – which she denied – her behaviour could never have amounted to this.

The Judge was persuaded by our arguments on the following key points;

• That there was no reason for PC T to have suspected Hayley of being drunk – and certainly not of her being ‘disorderly’ – PC T had unreasonably dismissed the explanations given by Hayley and her husband.
• That Hayley’s arrest was not driven by necessity under the law, or any reasonable apprehension of an offence against ‘public decency’ but rather PC T’s impatience and high- handedness, arising out of his rude, abrupt and dismissive attitude towards Hayley.
• That any reasonable officer, in PC T’s position, rather than berating Hayley, would simply have allowed her a few minutes grace to exit the closing train station, in view of her clearly being unwell. His act of arresting her, was entirely unreasonable, disproportionate and unnecessary; as epitomised in the fact that he callously handcuffed my helpless client, who had offered no violence whatsoever to him – even on his own account of what occurred.

Accordingly, the Judge granted Hayley Judgment on the 5th day of the trial, bringing the proceedings which had been expected to run to a full 8 days to a conclusion there and then.

In English law, all imprisonment is prima facie unlawful unless and until justified by law. The burden of proof in respect of false imprisonment is therefore on the Police to prove that the totality of the Claimant’s imprisonment from the moment of the arrest to the moment of release was lawful. By cutting the trial short after hearing PC T’s evidence, the Judge found that the Police simply had no prospect of proving that any of Hayley’s imprisonment was lawful.

Hayley’s prime motivation was vindication, not compensation.   Having established liability, British Transport Police now put forward an offer of £25,000 to settle her claim.  Hayley had achieved her goal and rather than trouble the Court any further, decided to accept.

Hayley had won.  She had secured justice; my client knew that after all these years, she had been believed; that the system does work, and that wrongdoing by the Police can be put right. This was what she said to me after the conclusion of the case –

“Thank you so much for believing in me, you’ll never know how much that meant. Without people like you willing to offer support to those who have been wronged, justice would not be possible. The fact you believed in me offered me comfort and gave me the strength to challenge the inappropriate behaviour by people in power, who should be respectful, show integrity and protect. All of which were disregarded in my case causing me 5 years of considerable difficulties and greatly impacted upon my mental health. This not only affected me but also my family. You have now given me the opportunity to put this behind me and continue with my life from where it had stopped 5 years ago. I will always be forever grateful and long may you continue to ensure justice prevails for others who face similar challenges.”

But what I want to say to her is this: it is your self- belief, despite everything the Police threw at you, and all the disappointments and frustrations you suffered, and your bravery at facing up to the lies told by PC T not once but twice in both the Magistrates and then County Court proceedings that was ultimately the key to victory.

By Iain Gould, solicitor and specialist in civil actions against the police

I was saddened, but not surprised, by the conclusions reached this week by the Police ‘Watchdog’, Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services (HMICFRS) that more than half of the Police Forces in England and Wales have failed to implement plans to stop Police personnel abusing their positions for a sexual purpose.

This is a matter of grave concern to us all. As the introduction to the report states –

Police officers and police staff hold a privileged position within our society; they can use a range of coercive powers and under certain circumstances they are allowed access to people’s homes, businesses and personal information. Often members of the public are at their most vulnerable when they come into contact with the police. It is therefore imperative that all police officers and police staff act with the utmost integrity at all times and do not seek to take any personal advantage from the position they hold.

No one wants to believe that police officers and staff – whose primary function is to help the most vulnerable people in our society – would ever be involved in taking advantage of people in such a way. Nonetheless, such cases do occur, and when they do they can have a devastating effect on the lives of individual victims and corrode the trust and confidence both they and the wider public have in the police. Police forces must therefore work tirelessly to prevent and seek out this form of serious corruption and to pursue the perpetrators.

The National Police Chiefs’ Council (NPCC) has recognised the very serious nature of this type of misconduct and has defined the abuse of position for a sexual purpose as-

Any behaviour by a police officer or police staff member, whether on or off duty, that takes advantage of their position as a member of the police service to misuse their position, authority or powers in order to pursue a sexual or improper emotional relationship with any member of the public. This includes: committing a sexual act, initiating sexual contact with, or responding to any perceived sexually motivated behaviour from another person; entering into any communication that could be perceived as sexually motivated or lewd; or for any other sexual purpose.

Police Officers in the course of their duty are invested with a special trust – given a position of power and authority over members of the public, and access to the personal lives of members of the public when they are at their most emotionally vulnerable, in the aftermath of crimes of violence and abuse. Those Officers must therefore be held to the highest standards of behaviour. It is sickening that some Officers will not only fail to behave with propriety and respect towards victims of crime, but will go on to exploit them by turning a professional relationship into a sexual one. Of course, the vast majority of those cases involve male officers exploiting female victims of domestic abuse and sexual crime. HMIC statistics for the 2 years to March 2016 showed 436 reported allegations of abuse of authority for sexual gain against Police staff, 40% of the allegations involving victims of crime.

I can put a personal face on those statistics, having blogged previously about the cases of my clients “Kate” and “Clare” (and also here) who were the victims of Police officers from the Merseyside Police and West Mercia Constabulary respectively, who sought to use their positions as Officers investigating crimes committed against these young women, to initiate sexual relationships with them. Modern technologies such as personal mobile phones, text messages and social media, give these predatory Officers even more opportunity to harass and exploit their victims. It is unconscionable that Officers who have access to intimate knowledge about what domestic and sexual abuse victims have suffered then use their privileged position as the authority figure handling the case – their position in effect as ‘Protector’ of the victim to groom, seduce, assault and harass these women, thinking only of their own sexual gratification and not at all of the emotional and psychiatric harm they are causing to the woman who first came to the Police as the victim of a criminal or witness to criminal behaviour, and who now the Police are victimising in turn. This is a clear example of one of the worst types of ‘serial exploitation’ of vulnerable young women; almost as if the Police officers involved are collaborating with the original abuser, whose actions left this person at their mercy.

Of course, what compounds this problem – the bigger picture- is the failure of Police Forces to root out and stop these rogue Officers, and this issue is what HMIC’s most recent report is highlighting. Shockingly, despite well meaning statements such as that of the NPCC quoted above, fewer than half of those 436 allegations of sexual abuse perpetrated by Police staff, identified in 2016, were referred to the IPCC, suggesting that Forces were simply failing to appreciate the seriousness of this type of Police misconduct and might very well have a culture of toleration leading to abusers ‘hiding behind the Uniform’ effectively being allowed to ‘get away with it’.

These statistics clearly caused concern to HMIC who in earlier reports of 2014 and 2016 on the subject of abuse of position for a sexual purpose made the following very troubling conclusions –

• Approximately 1 in 5 Forces were still failing to develop sufficient integrity and anti-corruption related intelligence gathering methods
• More than half of Police Forces did not regularly monitor their IT systems for evidence of misuse
• Almost 1 in 3 Forces did not have sufficiently well – resourced Counter Corruption Units (CCUs)
• Many Forces needed to improve their ability to proactively seek out intelligence, rather than waiting to react to reports, so that they could intervene early to safeguard potential victims
• Of equal concern to the problem of Forces not having the capacity/ capability to identify abuse of position, was a culture in some Forces of failing to recognise abuse of position for a sexual purpose as a serious form of corruption (indeed, in my opinion, failing to properly act when such crimes are discovered or suspected is surely more reprehensible even than failing to discover them in the first place). If such cases of sexual abuse were not routinely being referred to the IPCC then this spoke volumes about the lack of weight, or indeed even toleration, that some in the Policing community might be placing upon it. HMIC, in tandem with the NPCC and the College of Policing, called for changes to the IPCC’s mandatory referral criteria to include all cases of abuse of position for a sexual purpose.

Following on from these reports, the NPCC set out four main principles that they expect Forces to adopt as a strategy to deal with this problem –

• Prevention – this covers vetting Officers, professional boundaries training, and guidance for supervisors;
• Intelligence – this covers intelligence gathering, relationships with other agencies that support vulnerable victims, IT monitoring and audit, development of intelligence and the identification of intelligence gaps;
• Enforcement – this covers recording cases as serious corruption, oversight of the force’s CCU, referrals to the IPCC, use of an investigative checklist, victim support and access to suitably trained specialist staff;
• Engagement – this covers working with support agencies, internal and external communication strategies, raising awareness and learning organisational lessons from previous cases.

These are highly laudable principles – but are they now being followed in practice? That is the question which the most recent HMIC report is addressing, and the depressing conclusion is ‘not anything like enough…’

A culture of Police – if not toleration, then ‘oversight’- of this type of abuse and corruption by Officers appears to remain widespread.

26 (more than half) of the Police Forces of England and Wales have failed to fully act to develop plans to prevent this abuse. Whilst 15 Forces stated that they had come up with plans, but not actually implemented them (yet), 11 simply didn’t even respond properly to HMCI’s questions on this subject, demonstrating , in my opinion, a heinous disregard of such a serious problem.

Indeed, only 2 Forces (Derbyshire and Merseyside) were found to have all sufficient elements of a protection/ prevention plan in place and active practice.

Highlighting the seriousness of this problem HMI Mike Cunningham said –

When Police officers and staff abuse their position for a sexual purpose it has a devastating effect on the lives of victims and corrodes trust and confidence in the police.

It is of great importance that forces are prepared to seek intelligence on this type of corruption and when they find it deal with it vigorously and decisively.

The importance of public trust in the police cannot be understated, and forces need to do everything they can to ensure this trust isn’t eroded.

[quoted in Police Oracle 5/10/17]

Again, the work I do on a day to day basis brings me into regular contact with the real victims and real suffering behind the statistics and pious sentiments expressed by HMIC in their reports.

I currently represent two women who have been the victim of the same sexually predatory Police Officer, DC McMillian of Merseyside Police’s Family Crime Investigation Unit, who was subsequently dismissed from the Force for gross misconduct and convicted of Misconduct in Public Office, receiving a custodial sentence of 4 years.

My client ‘Josie’ turned to the Police for help in 2011 after being assaulted by her then partner, who strangled and hit her in the face.

Josie attended Southport Police Station in June 2011 and provided a statement to a female Police Officer. Her injuries were documented and photographed.

Several weeks later, Josie was contacted by DC Michael McMillan.  DC McMillan advised that her partner had been arrested and bailed.  It was suggested that Josie needed to respond to counter allegations made by her partner and in the circumstances, arrangements were made for her to re-attend Southport Police Station.

On attendance, my client was met by DC McMillan and taken into a side room where she was interviewed.

Several weeks later and in the early hours of the morning, Josie received a text from DC McMillan enquiring as to her general wellbeing.

Thereafter, Josie began to receive multiple texts from DC McMillan, who also became her ‘Facebook Friend’ and communicated with her further by the Messenger facility of Facebook and Whatsapp.

Over time, the communications from DC McMillan became of a sexual nature and content;  suggesting that Josie had deliberately worn provocative clothing for the meeting at the Police station; requesting photographs of her breasts.

Merseyside Police subsequently established that DC McMillan had sent over 50 text messages to Josie between September 2012 – February 2014.

Dc McMillan’s behaviour towards Josie was totally inappropriate and clearly exploitative, trying to take advantage of my client when her life was already difficult enough with ongoing issues including her violent ex- partner, her children and a court case involving her mother.

Sadly, Josie was not the only victim of crime who then became a victim of DC McMillan’s predatory behaviour.

Merseyside Police discovered the Officer’s wrongdoing in June 2014 when they were alerted by Cheshire Social Services to the case of a 17 year old girl who had gone missing, and whose phone was discovered to contain numerous messages from DC McMillan, who was apparently trying to get her to meet him for sex.

Subsequently Merseyside Police Anti- Corruption Unit (ACU) confiscated DC McMillan’s personal mobile phone and discovered a vast amount of data relating to his contact by text message and social media with many women, many of whom he had induced to send him pictures of themselves in states of undress and some of whom – just like Josie – he had specifically come into contact with in his role as Officer in Charge of their domestic violence cases.

I am also acting for another of these women, who had the misfortune to have McMillan assigned as the investigating officer in their case.

My client ‘Lisa’ approached Merseyside Police in 2012 reporting serious domestic violence at the hands of her partner, the father of her two children, including having been kicked in the stomach by him when she was pregnant.

DC McMillan was assigned to Lisa’s case and visited her repeatedly at her home address, ostensibly to take statements from her. He then began to send text messages overtly complementing Lisa on her looks and appearance. At first she felt flattered by this, at a time when otherwise her ‘life was on the floor’ and she felt a complete mess, with violent harassment from her former partner continuing.

McMillan’s text messages then became more blatant, referring to Lisa’s breasts and making sexual suggestions. He continued to visit her house, claiming that the CPS required further information before they could decide whether to charge her ex- partner. On one of these occasions he asked Lisa to kiss him, which she refused. Thereafter, he continued to pester her with requests for naked photographs or videos of herself, which again she refused, now in a state of considerable distress and confusion about the Officer’s behaviour.

Throughout all of this time, nothing was being done to prevent Lisa’s ex- partner from continuing to harass and threaten herself and her children. Lisa also discovered that DC McMillan was married and had children of her own, which made her feel even worse about being the victim of his predatory behaviour. Eventually, Lisa attempted to commit suicide, a terrible event to which McMillan had been utterly, callously indifferent as he exploited such a vulnerable woman for his own gratification.

To add insult to injury, Lisa later found out through Merseyside Police that there was no trace of all of the statements which McMillan had taken from her. He had been using the investigation as a cover for contacting her for his own ends, and at the same time was letting Lisa’s ex- partner get away with the crimes which he had committed against her. What a terrible situation when a woman tries to escape from one abuser only to find herself in the hands of another, this time wearing a friendly smile and a Police uniform.

I am currently bringing claims on behalf of both Josie and Lisa against Merseyside Police for Harassment and Misfeasance in Public Office, and I anticipate that they will both be awarded substantial damages, but both I am sure would simply rather these events had never taken place. Compensation can go some way to setting wrongs right after the event, but I call upon all of the Police Forces of England and Wales to ‘wake up’ to the very real and serious problem of predators like DC McMillan using their position of trust as Police Officers to exploit and injure vulnerable women, and to act immediately upon the recommendations of HMIC and the NPCC.

DC McMillan is clearly not a ‘one off’ case, yet the historical and indeed current conduct of our Police Forces in general, as highlighted in the current report, appears to be to not to treat the preventing of these sort of offences as a high priority. The Police exist to protect us from criminal behaviour; their first duty to some of the most vulnerable members of society must be to protect them from the criminals in their own ranks.

Update

Althought Merseyside Police denied liability, I am pleased to report that, following the institution of court proceedings, the police agreed a substantial settlement for both Josie and Lisa.

I previously blogged about situations where on the back of intelligence the Police execute a Search Warrant following application to a Magistrates’ Court.

In the last blog I referred to a case where the Police raided the wrong house, but what about situations where they attend the right house but the house is now lived in by a family wholly unconnected with the object of the search?

After months and months of saving up, my clients Anthony  and his partner Jane were able to purchase a 3 bedroom house in Liverpool.  The house was in something of a state and over a 3 month period, they paid for renovations before finally moving in in December 2015 with their 2 children.

Unbeknown to them on the 15 January 2016 a Search Warrant was issued by a  District Judge at Liverpool Magistrates’ Court upon Police application, permitting the entry and search of the said premises for cash, betting slips and mobile phones.

On the morning of the 28 January 2016,  Officers of Merseyside Police set out to execute the Search Warrant.

On this occasion, both Anthony and Jane were in bed at the premises asleep.  Their 2 children then aged 7 years old and 18 months were also asleep in adjoining bedrooms.

At approximately 06.59 hours 6 uniformed Police Officers attended.

Entry was gained to the rear garden by force to prevent any escape from the rear.  Entry to the house was then sought via the front door which was found to be locked.

In the circumstances, a ‘Method of Entry Team’ forced the door open with an Enforcer (basically a battering ram),  called “Breach” and officers then entered the property which they found to be in darkness.

Anthony and Jane were awoken  by the noise and got out of bed.

Such was the unexpected nature of the incident, Anthony and Jane initially believed that they were the target of dangerous criminal offenders.

Following entry, the officers proceeded upstairs and entered into Anthony and Jane’s bedroom where they were both  “secured”.  An officer asked “Where’s Bill Sykes?”   The officers then ordered that Anthony and Jane to dress and proceed downstairs.

Simultaneously, an officer entered the bedroom of their 7 year old son waking him and causing immediate and immense distress to the boy and another Police Officer entered the bedroom of his 18 month old brother, before removing him from his cot, resulting in an outburst of hysteria from the infant.

The whole family were understandably very upset and distressed.

Anthony and Jane proceeded downstairs as directed.  They were given a copy of the Warrant and realised that the officers were searching for the previous occupant of the premises.  Anthony and Jane explained that they had purchased the property from the main suspect’s mother in August 2015 and that they had moved in in December 2015.  Jane then produced documentation to confirm both her own identity and that of Anthony and their ownership of the premises.  After 20 minutes or so, it was apparent that the officers accepted Anthony and Jane’s account.

Despite Anthony and Jane providing the said evidence, the Warrant only being issued for specific evidentiary items and the officers realising  that Anthony and Jane  were the current owners of the premises and therefore  not who they were looking for, Anthony and Jane continued to be detained during which time  they were asked questions regarding their source of income, the nature of their employment and the purchase price of the premises.  Furthermore, checks were carried out on the premises’ utility meters to ensure that they were operating without interference.  To add further insult, one of the officers present  remarked that Anthony and Jane should regard themselves “lucky” that the search of the premises was not accompanied by television crews, a feature of other searches which had taken place that day. In all, Anthony and Jane were detained for approximately 1 hour.

Such was the force with which entry was gained, the front door was damaged beyond repair.  Anthony and Jane were required to purchase a replacement door at a cost of £900, money for which was not readily available and had to be borrowed.  As a result, it was not until 31 March 2016 that the front door was finally replaced.  Further, forced entry caused damage to the interior plaster around the door frame.  Damage was also caused to the back gate and fencing panels.

As a result of the trauma and anxiety which had been caused by the disturbance to the premises, Jane was unable to attend for work that day.  Likewise their 7 year old son had to be kept home from school.

The whole incident took place in front of Anthony and Jane’s neighbours causing further embarrassment particularly as the family had only just moved in to the house.

Subsequently Anthony and Jane discovered that the search at the premises and other addresses that morning was the culmination of a lengthy Police investigation, spanning several months.  Despite careful planning and preparation which might be expected for such an operation (part of which was being ‘televised’), there had been a complete failure to check and confirm current occupancy of the premises.

Begrudgingly, Anthony and Jane were provided with an apology from Merseyside Police.

Due to their outrage at the treatment they had received, Anthony and Jane instituted a formal complaint and contacted myself to pursue a claim on their behalf.

Ordinarily, the victim of such a raid could allege trespass, assault and false imprisonment (as in the case of Mr and Mrs S reported here), but here, the officers had entered and searched the correct address, the address that was identified in the Search Warrant and had executed the Warrant correctly.

In the circumstances, the Police could rely on Section 6 of the Constables Protection Act 1750 and were thereby protected from a lawsuit.  In short, in the absence of any information to suggest that the Warrant was in any way defective or that it had been executed incorrectly, the Police had a complete defence to any proposed claim for trespass and associated wrongdoing notwithstanding the fact that Anthony and Jane were completely innocent.

So if an action for trespass, assault and false imprisonment was bound to fail, how could Anthony and Jane  seek redress?  Following review, I advised Anthony and Jane to bring a claim under the Human Rights Act and specifically a breach of their right to private and family life as protected by Article 8.

Breach of Article 8 of ECHR

Article 8 provides:

Right to respect for private and family life.

1. Everyone has the right to respect of his private and family life, his home and his correspondence. 

2. There shall be no interference by a public authority with the exercise to his right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing 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. 

Once an interference with rights to private and family life and respect for the home has been proved, the public authority must then prove that the interference was in accordance with the law, in pursuance of a legitimate aim and necessary in a democratic society.

It was clear to me that if proper enquiries had been made and the facts of those enquiries had been properly reported, the Police would have concluded that in early January 2016, there was no reasonable or probable cause  to apply for a Search Warrant.  In other words, the Police had failed to carry out basic steps  to verify the connection between the address and the offence and suspect under investigation.  The resulting Police action which caused Anthony and Jane considerable fear and alarm was wholly unreasonable and disproportionate and sufficient to constitute an interference with Anthony and Jane’s rights under Article 8.

I’m sure that it was on this basis that following investigation Merseyside Police admitted the breach and agreed to pay compensation.

Both Anthony and Jane and their 7 year old son were traumatised by the incident and I was able to arrange for them to see a Psychologist who recommended that they undergo a course of CBT.  Subsequently, I am pleased to report that  settlement terms  have just been agreed with Anthony and Jane receiving total compensation of £17,500. Their son’s case is presently ongoing.

The Importance of the Human Rights Act

This case really brings home the important part which the Human Rights Act plays in the proper functioning of a modern democratic society.  We often hear negative comments about the Human Rights Act from Conservative politicians such as David Cameron  and Michael Gove and newspaper barons such as Paul Dacre of the Daily Mail, who wish to see it repealed on the basis  that it enshrines ‘political correctness gone mad’ and gives too many rights to criminals, suspected terrorists and others (although Mr Dacre’s list of undesirables probably also includes celebrities as he was particularly concerned about the Human Rights Act reinforcing peoples’ rights to privacy against snooping journalists).

However, I am confident that the Human Rights Act in the hands of the fair, balanced and generally conservative British judiciary  is overwhelmingly a positive rather than a negative tool, and this case I have reported above shows how it was absolutely necessary to ensure that a young family received fair and just compensation for the wrong they had suffered.

Stories such as that of Anthony and Jane showing the real benefit and protections to family and private life that are provided by the Human Rights Act are little reported, and indeed are probably deliberately overlooked by the Tabloids when they are whipping up the next round of fury against the legislation and supposed ‘PC – madness’ or ‘compensation culture’.

I would urge us all to be very careful about letting the Government abolish the Human Rights Act and thereby roll back some of the most important protections we have against unjust treatment by the State, or undue interference with our private lives.

After all, where did the European Convention of Human Rights, the founding charter which is implemented in British law by the Human Rights Act come from?  It was drafted in the immediate aftermath of World War II by a leading British lawyer and Conservative MP Sir David Maxwell-Fyle, with the express intention of ensuring the civil liberties necessary to protect effective political democracy against the dangers of fascism and the totalitarianism that were deeply rooted across the continent. These civil liberties arose from the strongest traditions of British liberty in the UK, going back to the Bill of Rights, Magna Carta and all that the English Common Law had done over many centuries to extend those rights.

So the Human Rights Act and the European Convention of Human Rights, and the European Court of Human  Rights (which has nothing, by the way, to do with the European Union) far from being alien to British justice were from their inception part and parcel of it, and remain a linchpin (as this case shows) of the proper functioning  of a just and peaceable civil society.

Don’t let anyone throw your rights away!

A common sight in today’s media is news and photographs of an organised early morning Police raid on a residential home or series of homes, carried out in accordance with a Magistrates’ Court Warrant.

These stories are released by the Police to proclaim their success in terms of the seizure of drugs, firearms and/or cash and the arrest of key suspects.

What is often not publicised  is where frankly the Police ‘screw up’ in terms of planning or execution of these Search Warrants. Sadly, this happens more often than one might imagine and for all sorts of reasons.

Police get the wrong house!

I have just concluded a claim on behalf of Mark and  Emma Stephens who live at 43 Lake  Road, Liverpool L99 8BS with their 3 young children. (NB All personal details changed.)

On the morning of 2 August 2016, at approximately 06:45 – 07:00, Mark was showering in the upstairs bathroom, prior to leaving the premises to go to work.

Mrs Stephens was asleep in the matrimonial bedroom.

Unexpectedly, Mr Stephens became aware of activity outside, beginning with the noise of his dog barking and thereafter banging noises.

Upon looking outside from the bathroom window, Mr Stephens became aware of the presence of 3 armed Police Officers, who had forcibly entered his rear garden by breaking the back gate.

Mr Stephens called down to the Officers to ask what was going on. They looked up and one Officer pointed a gun directly at him and shouted to him ‘Where’s Cody?’ and instructed him to put his hands up. As he did so, his towel dropped. Mr Stephens tried to reach for his towel whereupon the Officer again shouted, warning him to keep his hands up. Mr Stephens was shocked and frightened. He replied that he did not know anyone by the name of ‘Cody’. He was ordered to go downstairs to the front door. Mrs S was roused from bed by the noise.

As Mr Stephens got to the front door, he  was confronted by 2 Officers one of whom was pointing a gun at him. He was still only wearing only a bath towel, and was again told to keep him hands in the air.

One Officer then said “That’s not him”. It was clear to Mr Stephens that the Officers had attended at the wrong address.

Mr Stephens questioned the Officers as to whether they had identified the correct address. The Officers ignored Mr Stephens and demanded his name which he gave. Mr Stephens was then asked as to who else was in the premises.  Mr Stephens advised that his wife was upstairs.

Mr Stephens was told to dress and to come back and to leave the front door open.

No search warrant or a copy was presented to either Mr or Mrs Stephens.

Mr Stephens returned to the front door and stepped outside. Mr Stephens could see that there was an armoured Police vehicle and several marked Police cars. An Officer who was pointing a gun at Mr Stephens told him to walk towards him slowly and to keep his hands visible. Mr Stephens was bare footed. There were various neighbours looking on. Officers told these neighbours to get inside and stay away from windows and doors. Mr Stephens was frightened he might be shot. He was ordered to walk to a Police armoured vehicle and to then get inside which he did.  Mr Stephens was then asked his wife’s name.

Mrs Stephens was then told to come outside. As she did, she saw an Officer pointing a gun at her and she was directed to put her hands in the air and walk towards the armoured vehicle and to get inside.

Both Mr and Mrs Stephens remained under armed guard in the Police vehicle during which time they were led to believe that the premises were being searched. During this process, they were obliged to provide their personal details. Both felt that they were in effect under arrest and were not free to leave.

Following a period of approximately 20/30 minutes detention, Mr and Mrs Stephens were advised that the Police had indeed misidentified their address and that they were able to return inside.

Notwithstanding their gross mistake, none of the Officers present offered an apology for the deeply traumatic events which had taken place. Mr Stephens spoke to an officer about the damaged gate and was told that someone would be sent “to sort it”.

As a matter of good fortune, Mr and Mrs Stephens’ young children had stayed the night with their grandparents. Thoughts ran through their heads as to what would have happened if their children had witnessed these events.

The arrival and presence of the armed Police Officers, the subsequent detention of Mr and Mrs Stephens and the subsequent search of the premises were all witnessed by their immediate neighbours, to their great embarrassment.

Such was the upset and stress which had resulted from the Police raid, Mrs Stephens was unable to attend for work that day.

Later that afternoon, a Detective Sergeant visited Mrs Stephens apologised for the mistake which had taken place and provided a bunch of flowers.

Despite the apology which was made to Mr and Mrs Stephens no explanation was provided, nor was any reassurance given that no repeat of the incident would occur in the future.

The incident was subsequently reported in the Liverpool Echo but there was no indication in the press coverage that the Police had attended the wrong address.

The claim

Having taken instructions, I was of the view that Mr and Mrs Stephens had viable claims for assault, false imprisonment and trespass.

Both Mr and Mrs Stephens had been caused to apprehend the immediate infliction of unlawful physical contact (the assault). Both Mr and Mrs Stephens had been unlawfully detained (the false imprisonment). The police officers had entered Mr and Mrs Stephens’ property without lawful authority (the trespass).

Following investigation, Merseyside Police admitted liability for all 3 heads of claim.  It transpired that the Police had secured a Warrant for 43 Lake Road, L99 4FU.

Unfortunately, once the Warrant had been obtained, a briefing pack was prepared that by human error now had the Warrant address as 28 Lakes Road, L99 8BS and on the back of this, firearm officers were deployed to the wrong (my client’s) home address.

Both of my clients were understandably traumatised by reason of what had happened and I referred them to a Psychologist who recommended that they undergo a course of CBT. Both clients then underwent a short course of treatment.

I then sought to negotiate settlement and following discussions, I am pleased to report that my clients received total damages from Merseyside Police of £21,000.00.

My clients were extremely distressed by the intrusion and disruption which this incident caused to their lives, particularly the embarrassment of having the event play out in full view of their neighbours.  But I think they were also conscious of how much worse it could have been were it not for the fact that Mr Stephens was already awake, despite the early hour, and was able to interact with the officers prior to them taking their next step – which presumably (given the threat the officers obviously imagined they might face from the occupant of the house) would have been to kick the door down and burst upstairs with weapons drawn. I am sure we can all imagine the shock of being woken in our bed by armed men shouting instructions and the risk of how the wrong reaction could result in fatal consequences.  An error no matter how small, by the police which results in an armed raid on your family, is not one to be shrugged off or forgotten lightly.

All names changed.

Recent Government statistics confirm the continuing decline in the number of arrests carried out by Police in England and Wales.  In the year ending March 2015, there were 950,000 arrests carried out by Police, a fall of 7% on the previous year and continuing the downward trend since a peak of 1.5 million arrests in year ending 2007. 

What is the explanation for this decline? Some would argue that the drop off is attributable to the fact that less crime is being committed generally.  Others, like Hampshire Police Federation Chairman John Apter put the drop off down to the reduction in serving Police Officers; “The reduction of numbers clearly shows the consequences of losing so many officers”.  

An alternative explanation is a gradual change in Police culture away from arrest now, investigate later to actively considering alternatives to arrests and in particular, to investigate by way of voluntary interview.  Such alternatives to arrest both spares the suspect the ordeal and distress of incarceration (for example, householders who use reasonable force in self defence against burglars and teachers/school staff facing allegations connected with their employment) and the Police the expense of keeping that individual in Custody (of particular interest in these lean days of austerity) and is of course particularly appropriate when dealing with low level criminality. 

This shift in culture away from seeing the sheer number of arrests made as a sign of success (for example see the Evening Standard’s report “Make more arrests or face punishment Police Officers told” has been encouraged by changes to Code G of PACE (implemented by the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, G and H) Order 2012 (SI 2012 No. 1798) implemented in November 2012. 

Code G contains the following provisions under the section headed ‘Introduction’ 

1.2       The exercise of the power of arrest represents an obvious and significant interference with the Right to Liberty and Security under Article 5 of the European Convention on Human Rights set out in the Human Rights Act 1998. 

1.3       The use of power must be fully justified and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means.  Absence of justification for exercising the power of arrest may lead to challenges should the case proceed to court.  It could also lead to civil claims against police for unlawful arrest and false imprisonment. When the power of arrest is exercised it is essential that it is exercised in a non-discriminatory and proportionate manner which is compatible with the Right to Liberty under Article 5. 

Then the section headed ‘Elements of Arrest under Section 24 PACE’ at paragraph 2.1: 

2.1       A lawful arrest requires two elements: 

A person’s involvement or suspected involvement or attempted involvement in the commission of a criminal offence; 

AND 

Reasonable grounds for believing that the person’s arrest is necessary. 

·         Both elements must be satisfied, and

·         It can never be necessary to arrest a person unless there are reasonable grounds to suspect them of committing an offence. 

2.2       The arrested person must be informed that they have been arrested, even if this fact is obvious, and of the relevant circumstances of the arrest in relation to both the above elements.  The custody officer must be informed of these matters on arrival at the police station…

 Necessity criteria 

2.4       The power of arrest is only exercisable if the constable has reasonable grounds for believing that it is necessary to arrest the person.  The statutory criteria for what may constitute necessity are set out in paragraph 2.9 and it remains an operational decision at the discretion of the constable to decide: 

·                     Which one or more of the necessity criteria (if any) applies to the individual; and

·                     If any of the criteria do apply, whether to arrest, grant street bail after arrest, report for summons or for charging by post, issue a penalty notice or take any other action that is open to the officer…

 2.8       In considering the individual circumstances, the constable must take into account the situation of the victim, the nature of the offence, the circumstances of the suspect and the needs of the investigative process. 

2.9       When it is practicable to tell a person why their arrest is necessary, the constable should outline the facts, information and other circumstances which provide the grounds for believing that their arrest is necessary and which the officer considers satisfy one or more of the statutory criteria in sub-paragraphs (a) to (f), namely: 

(a)    To enable the name of the person in question to be ascertained …. 

(b)   Correspondingly as regards the person’s address …. 

(c)    To prevent the person in question: 

(i)                 Causing physical injury to himself or any other persons…

(ii)               Suffering physical injury ……

(iii)             Causing loss or damage to property ……….

(iv)             Committing an offence against public decency ……..

(v)               Causing an unlawful obstruction of the highway ……… 

(d)   To protect a child or other vulnerable person from the person in question ……. 

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

This may arise when it is thought likely that unless the person is arrested and then either taken in custody to the police station or granted ‘street bail’ to attend the station later, further action considered necessary to properly investigate their involvement in the offence would be frustrated, unreasonably delayed or otherwise hindered and therefore be impracticable.  Examples of such actions include:

 (i)                 Interviewing the suspect on occasions when the person’s voluntary attendance is not considered to be a practicable alternative to arrest, because for example: 

·      It is thought unlikely that the person would attend the police station voluntarily to be interviewed.

·      It is necessary to interview the suspect about the outcome of other investigative action for which their arrest is necessary, see (ii) to (v) below

·      Arrest would enable the special warning to be given in accordance with Code C paragraphs 10.10 and 10.11 when the suspect is found:

Ø  In possession of incriminating objects, or at a place where such objects are found;

Ø  At or near the scene of the crime at or about the time it was committed.

·      The person has made false statements and/or presented false evidence;

·      It is thought likely that the person:

Ø  May steal or destroy evidence;

Ø  May collude or make contact with, co-suspects or

Ø  May intimidate or threaten or make contact with, witnesses. 

(ii)               When considering arrest in connection with the investigation of an indictable offence (see Note 6), there is a need: 

·      To enter and search without a search warrant any premises occupied or controlled by the arrested person or where the person was when arrested or immediate before arrest;

·      To prevent the arrested person from having contact with others;

·      To detain the arrested person for more than 24 hours before charge.

 (iii)             When considering arrest in connection with any recordable offence and it is necessary to secure or preserve evidence of that offence by taking fingerprints, footwear impressions or samples from the suspect for evidential comparison or matching with other material relating to that offence, for example, from the crime scene.

 (iv)             When considering arrest in connection with any offence and it is necessary to search, examine or photograph the person to obtain evidence.

 (v)               When considering arrest in connection with an offence to which the statutory Class A drug testing requirements …….. apply, to enable testing when it is thought that drug misuse might have caused or contributed to the offence.

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

 

By way of illustration of the importance of considering alternatives to arrest, and how a failure to use a reasonable alternative can render an arrest unlawful, let me set out the facts of a case I have recently settled.

 Jack Godwin was a 75 year old retired gentleman of exemplary character.  He lives in a bungalow in rural Suffolk and had done so for the previous 8 years.

 At the rear of Mr Godwin’s property is an area of land belonging to the District Council in which pine trees grow.

 Throughout the period that Jack had lived at his address, he had experienced difficulties with the trees at the rear of his property, specifically the mass shedding of needles, which collected in and around his garden and caused associated problems such as blockage of drains.  Mr Godwin was of the opinion that the mass shedding was attributable to ivy that was allowed to grow on the trees.

 Jack made a number of complaints spanning several years to the District Council, as regards the problems he was experiencing with the trees, but on each occasion the Council failed to act upon his complaints.

 On or around 1 April 2015, Mr Godwin received an unsolicited visit from a local “odd job man” offering his services.

 Jack agreed to pay for the man to carry out some work at the rear of his address specifically requesting that the male cut and trim the ivy off the Pine Trees.

 Mr Godwin made it extremely clear to the man that no work should go beyond the cutting of the ivy, so as to protect the integrity of the trees.

 Unbeknown to Mr Godwin, the District Council received information as regards the maintenance work on the trees. 

 On or about the 17 May 2015, Jack was visited at home by a PCSO who was making enquiries as to the work on the trees.

 Mr Godwin openly accepted that he had paid for work to be carried out on the trees.

 On the morning of the 10 June 2015, 2 Police Officers attended Mr Godwin’s address and arrested him on suspicion of criminal damage.

 As a result of the arrest, a search under Section 32 of the Police and Criminal Evidence Act 1984 was carried out and a number of items received/seized including Mr Godwin’s laptop, mobile phones and chainsaw.

 Jack, who was still in his pyjamas, was allowed to change his clothes and was then transported to and detained at Bury St Edmunds Police Station.

 The circumstances of arrest were recorded in the Custody Record as “Detained Person is alleged to have cut some trees down at the rear of his address between 1 April and 8 May 2015, which belong to the District Council”.

 The reason to arrest was said to be “To allow the prompt and effective investigation of the offence or of the conduct of the detained person”.

 The reason for detention was said to be “to obtain evidence by questioning”.

 The grounds for detention were on the basis that there was “insufficient evidence to charge.  Detention necessary to obtain evidence by way of questioning and then to decide on the best means of disposal”.

 Mr Godwin was searched and subjected to a risk assessment and he was then obliged to provide his fingerprints and DNA sample.  Jack was then taken to a cell.  He was aware of a camera on the ceiling of the cell and a slot in the cell door but no window.  Mr Godwin was particularly upset at being treated like a common criminal. The stress exacerbated his asthma which was aggravated further because the Police refused to allow him to have the inhaler in his cell and having to ring the bell when he needed it to use it.

 Mr Godwin was subsequently interviewed under caution, whereupon he denied any responsibility for criminal damage. At the conclusion of the interview, the interviewing officer advised Mr Godwin that the interview was “simply to gain an account from yourself as to what happened”. 

 As a result of an evidential review, a decision that no further action would result was eventually reached and after 8 hours, Mr Godwin was released from custody. 

Following his return home, he found he was initially unable to sleep and spent the majority of his time thinking about his arrest and the injustice of what had happened.

 Mr Godwin carried out a search on the internet and having established my credentials instructed me to pursue an action on his behalf.

 Whilst it appeared to me that the Police might be able to establish that the Officers had a reasonable suspicion that an arrestable offence had been committed, I could not for the life of me understand how they could argue that there was any necessity to arrest, as opposed – for example – simply inviting Mr Godwin to attend a voluntary interview at the police station.

 I intimated a claim. True to form, the Police denied liability leaving my client no alternative but to issue Court proceedings.

 Following issue, the Police filed a Defence, again denying liability.

 Notwithstanding this repeated denial, the Police made an offer to settle.  Following negotiations, I settled Mr Godwin’s claim for £10,500.

 So, my own experience, as demonstrated by this case, is that despite the revision of Code G and the statistical evidence of fewer arrests occurring, there still remains ingrained in Police culture a strong tendency to arrest without consideration of other options.  Therefore, it is imperative that Police Officers be trained (or re-trained) to highlight the law as it stands, and perhaps equally important that when mistakes are made, both individual officers and their Force generally learn from their mistakes.  Hopefully, thanks to both less crime being committed generally and increased compliance with Code G (and hence unnecessary arrest being avoided) we will continue to see arrest figures decline in years to come.

All names changed.