Category: News

What Everybody Ought to Know About Arming the Police

iain-gould-at-bbc

By Iain Gould, solicitor

I was pleased to have the opportunity to discuss on BBC Television last week an issue which I think we should all be paying ever greater attention to, namely the increasing ‘armament’ of our Police Force.  My colleague John Hagan also had an opportunity to debate this issue with BBC 3 County’s morning talk show host Jonathan Vernon Smith last month, and I have attached an audio file of John’s interview on the JVS show below:

What I believe I am seeing is an agenda by Police Forces which, if they have their way, will likely result in the full armament of our Nation’s Police Officers not only with taser guns, but perhaps even more deadly firearms raising the spectre that Police Forces in England & Wales could soon resemble the US Police in the routine usage of deadly firearms.

I have long warned about the dangers of creeping ‘militarisation’ of the Police as by steady increments we move from a Police Force which 20 years ago was virtually gun free to one in which potentially every Bobby on the Beat might be packing ‘heat’ (as they say…).  This began with the introduction of taser guns back in 2003 and then the steady ‘roll out’ of tasers to more and more Officers, until we stand on the verge of entire Police Forces looking to equip their Constables with tasers as a matter of standard kit.  Once we have Police Forces where all of the Officers are carrying taser guns, it will no longer seem such a dramatic step to move towards increased, and then eventually perhaps universal armament of Officers with bullet firing guns capable of delivering the kind of deadly force which, in the US in 2015 saw 1146 people killed by Police Officers (figures from The Guardian).

This was exactly the issue which I was called onto BBC Humberside to discuss – because Humberside Police Federation is even as I write this pushing to arm all of its Officers with taser guns.  Likewise there is currently a survey being conducted by The Metropolitan Police Federation, which is asking all of its members if they wish to carry tasers and/or bullet firing guns.   Although the Met Police Fed has tried to present its survey as a ‘neutral’ fact finding enquiry, I fully believe that the Federation’s agenda is to get a strong ‘yes’ vote from its members in order to assist its efforts in lobbying the Home Office to arm the Metropolitan Police.  An Ipsos Mori poll in December, suggesting that 71% of the public back more police getting taser guns, was seized upon by Steve White, Chairman of the Police Federation who said “We know Officers support the use of taser … and now we have the evidence that shows the public do as well”.

The Police Federation has already written to all Chief Constables and Police Commissioners across England and Wales urging them to support the wider roll out of tasers.

Whilst I do not object to Police carrying taser guns in principle, as I fully accept that there are situations where taser use is appropriate and can significantly reduce the risk of harm to both Police Officers and civilians caught in a violent situation – the fact is that increased taser ‘roll out’ must go hand in hand with a careful training program and a recognition that not every Officer may be temperamentally suited to carry this weapon.  A fast ‘blanket’ roll out of taser guns that does not go hand in hand with proper training and screening of the Officers that are going to carry these weapons runs a significant risk, in my opinion, of creating a situation of more harm than good, given the potential for these weapons to be misused.

A second significant issue for me, as I have expressed above, is that if we do move to a situation where whole Police Forces are carrying tasers, then we have not created so much a ‘back door’ as a wide open front door for the next ‘logical’ policy step being full armament with bullet firing guns.

One thing that concerns me about the results of the survey carried out in December 2016, indicating 71% support amongst the public for more taser wielding Police Officers is that the public does not necessarily have the full information to properly judge the risk of this weapon.  We must not romanticise, or even fetishize  the taser as if it were some kind of 100% reliable, 100% safe science fiction ‘stun gun’.  It is a weapon which delivers a massive surge of electrical volts to a person’s body, running in every case a risk of fatality, and causing at the very least a temporary paralysis and burst of extreme pain to the person subjected to it.

Whilst the public is aware of the – fortunately small number – of fatalities which have occurred when taser guns have been deployed on people, one of the most notable recent occasions being the death of former Aston Villa footballer Dalian Atkinson in August last year, what the public is not generally aware of, but I am as a Solicitor who handles Police Misconduct claims, are the lower level – but much more frequent – incidences of taser misuse, which whilst not resulting in fatalities, can nevertheless cause significant long-term hurt to the people involved.

I have blogged before on some of the numerous cases in which I have been involved concerning taser misuse including a black man shot in the back with a taser gun in the hallway of his own house and another man, who also in the hallway of his own home,  had a Police Officer turn a taser gun upon him during a minor dispute as to whether or not he had knocked the wing mirror of a Police car.

What was deeply concerning to me were the comments of the Police Officer in that last case who said as follows in regards to shooting someone with a taser gun:-

“…it’s worth raising that people’s perceptions of use of taser is that it is quite serious and it’s quite high up on the scale of things, and in actuality it isn’t, it is quite low down, it comes in at the same level as just putting your hands on somebody…” 

These comments were made by the Officer in response to the internal disciplinary investigation launched after this incident.  They are clear evidence that some Police Officers at least are not being properly trained to use the weapon appropriately and are not fully aware of its potential lethality.  Clearly, unless you are some kind of mutant super hero (or villain), placing your hands on somebody is in no way the same as shooting them with a weapon powered by 50,000 volts of electricity.

I was also concerned that these incidents show how easy it is for some Police Officers to use a taser gun not as a weapon of last resort but as a ‘short cut’ to resolve a dispute – even a non violent dispute – in the Police Officer’s favour before other less violent methods of conflict resolution – for example talking and reasoning  – have properly been exhausted, either because the Officer has lost his temper, or even, frankly, because he is being lazy.

These incidents, because they do not result in fatalities, are little reported by the media and hence most people are simply not aware of them.

Indeed, it is not only Lawyers such as I who handle Police Misconduct claims who are trying to sound a note of caution against the increased deployment of tasers.  Some Police Officers themselves are.  The following comes from an article written for the Guardian on 16/8/16 by Janet Hills, President of the National Black Police Association, in the aftermath of the death of Dalian Atkinson –

As a serving Officer I know what it is like to face a man armed with a knife.  I have seen the dreadful consequences of knife crime in our communities.  What I want is for the taser to be used to reduce the number of tragic incidents, not increase them.  Officers are trained to consider the most appropriate option in the circumstances but ultimately it remains the responsibility of Officers and those who employ them to justify their use of force.  These decisions are underpinned by legislation but the law can only ever be a starting point.  We must train Officers to understand behaviour, to consider all the options, and in critical situations, to be able to give the vital aftercare that is needed. 

As President of the National Black Police Association, I am clearly concerned about the disproportionate use and the impact that taser use has on our communities.  Increasing their use may seem an easy option, but we must always be aware of the concern tasers are causing in communities already filled with mistrust and fear towards the Police. 

Statistics bear out this sense of concern which non- white members of the public may well have regarding an increasingly heavily armed Police Force.  Home Office data covering the period 2010 – 15 shows use of tasers against non- white people is disproportionately heavy – a taser is 3 times more likely to be used against a black person than a white person.

That statistic alone, as Janet Hills points out, calls into question the effectiveness of the current training and screening program which Forces have in place when arming their Officers with tasers.  Surely incidents of inappropriate taser use are going to rise as the number of taser guns on our streets increases?  There are real risks of ‘trigger happy’ officers unable to psychologically handle the responsibility of carrying a gun being unleashed upon the public, especially in a time when Government policy dictates massive reductions in police budgets across the country  – Officer numbers are down a staggering 20,000 since 2010 in this ‘age of austerity’. Where on earth would the financial resources for properly training and regulating entire Forces armed with (at least) taser guns come from ?

You may also remember the shocking footage which was revealed last year showing a black motorist having the windscreen of his car smashed to smithereens by a Metropolitan Police Officer who had clearly lost control of his temper and had turned his baton upon the man’s car in a futile outpouring of rage.  I do not think it is going too far to say that situations like that in the US, where of course all Police Officers routinely carry firearms, often result in the fatal shooting of the black ‘suspect’.  If the Metropolitan Police Federation has what I suspect is its wish, and pushes for not only taser guns but actual bullet firing guns in increasing numbers into the hands of its Officers I fear we could see a similar pattern of fatal Police shootings as occurs in the US.

What I would ask everyone to do is to stop and think about whether they really wish to see what would be a fundamental change in the way our society polices itself,  moving from a non- firearm carrying Police Force to one in which all Officers routinely have at least a taser gun on their person.  As the old saying goes, if the system is not broken, why try and fix it – or certainly why make dramatic changes involving placing a significant increased amount of potentially lethal fire power on our street, albeit, in the hands of Police Officers?

The fact is that we live in a more peaceful society than we did 20 years ago.  The statistics which prove this are indisputable.  Our streets are safer than they were two decades ago. In the 12 months to March 2016, Officers had to discharge firearms on only 7 occasions, and this in a UK population of over 60 Million people. There is less violence in society and the number of incidents involving serious injury, or even death to Police Officers is thankfully minimal. The Police Roll of Honour Trust records in the 3 years 2013- 15 only two officers in the whole of the UK dying as a result of aggressive action by criminal suspects (and in both of those tragic cases, the police officer was run down by a car). Police officers are already, as a matter of routine, equipped with stab vests, truncheons and incapacitant sprays. A significant number of them already have tasers, and there are of course armed response units available to every Force. Why do we need to ramp up the militarisation of our Police any more ?

Once again, it is not only lawyers such as myself sounding this warning, but also serving or former Police Officers. Interviewed by the Daily Mirror on 10/1/17, former Metropolitan Police Chief Superintendent said this –

I feel uneasy seeing armed officers where they are not needed. We have officers trained in firearms who are used when and where intelligence says they are required. I’m all for reinforcing those numbers if statistics and safety say you should. But no one has shown me that statistically they are currently not able to cope.

One thing which my colleagues and I have noticed as a disturbing and repeated theme in this ongoing debate about arming the Police over the last year and more is how those who wish to see the Police carrying more guns will invariably invoke the bloodstained spectre of Terrorism. For example, the current Met Police Federation survey refers to this as a factor.

This is notwithstanding the fact that since 2006 there has been only one terrorism related killing in the UK (that of the highly publicised case of Lee Rigby). Whilst of course, the July 2005 attacks in London tragically killed 52 people, none of those bombings could have been prevented by taser or firearm carrying officers, and, indeed, the only involvement of firearms officers in the aftermath of those attacks, resulted in the shooting dead of an innocent man, Jean Charles de Menezes.

It is true that there have in the last 2 years been multiple terrorist attacks in France, and another recently in Germany, but those countries already have a routinely armed police force, and clearly that failed to stop any of those attacks from being carried out. The fact of the matter is that the way to stop terrorist attacks is to fund our Intelligence Services, who can discover and prevent the plots before they are implemented; that is where our anti- terrorism resources should be going, not into arming the police.

People are scared, however, almost certainly out of proportion to the real risk of them being caught up in a terrorist attack, by the deeply upsetting nature of these events. However, good policy must surely be dictated by a dispassionate analysis of the actual facts and statistics, not an emotional ‘gut’ response to tragedy.

Terrorists want us to be frightened.  They want us to fundamentally change the character of our society.  Terrorists would no doubt be pleased to see the UK change itself from a society with an essentially unarmed Police Force to one where all the Police carry guns thereby increasing the levels of violence in society both as a result of accidental, angry or otherwise inappropriate or disproportionate use of firearms by Police Officers on members of the public, and the risk that criminal elements in society and/or those communities which feel more excluded from mainstream society or victimised and targeted by the Police are then likely to respond by arming themselves with increasing number of firearms escalating us towards a US style firearms society.

Paranoia and fear about terrorists potentially lurking on every street corner is not a sound basis for the formation of policy or fundamental changes to the character and nature of our Police Force.

Guns in America are responsible for approximately 30,000 deaths a year.  No terrorist campaign has come remotely close to causing that amount of harm to our society over many decades (and let us not forget that this is not the first terrorist campaign that we have faced as a Nation).

Let us not do it to ourselves.  The only way the terrorists will win, is if we allow ourselves to be terrified.  They want us to change.  Do not give in to them.

 

Reflections on 2016

Iain Gould solicitorGreetings to all of you as we come to the end of another busy year; a time for reflection on what we have done and what we hope to achieve in the year to come. I trust that your year, like mine, has been a challenging but rewarding one and a healthy and happy one but if it has not, then here’s hoping that next year will bring you better fortune.

The major political upheaval of 2016, the “Brexit” vote has caused repercussions in the legal sector as we enter a period of great uncertainty ahead but this has not stopped the government’s intended plan to “reform” the Personal Injury sector in favour of the giant insurance companies who contribute so much to the war-chests of the Tory party. We are currently in a ‘consultation’ period which could see people stripped of the right to obtain legal representation in claims worth less than £10,000, and indeed significantly reduce or even bar the recovery of damages for certain types of ‘soft tissue’ injury.

This is clearly going to have a knock-on effect in the area in which I specialise, actions against the police, as it will add another line of argument with which Defendant police forces can try to (effectively) strip Claimants of their right to legal representation by seeking to get cases allocated to the Small Claims track of the County Court. This is something which Defendants in my experience are seeking to do with increasing frequency but which I am pleased to say I have successfully opposed on many occasions. This is because the monetary value of a claim is not the only factor which the Court will consider when it comes to deciding whether a case is suitable for the Small Claims process. Strong reasons why actions against the police Claimants should (in my opinion) always be allowed the benefit of legal representation include the importance of the actions themselves. These types of cases which revolve around not mere ‘accidents’ but often very deliberate abuses of police power including assault, false imprisonment and malicious prosecution, as well as the complexity of the legal issues and the number of witnesses/ length of trial which police claims involve.

So whilst ultimately the changes to the Small Claims limit may not prove a major obstacle to future claims being brought by my clients, other obstacles in the path of access to justice remain which have also been scattered there as indirect consequences of the government’s reforms over the last 5 years (which might also be characterised as their “war on personal injury claims”).

For example, the government’s abolition of the right to recover the costs of your legal expenses insurance policy as part of your claim continues to cause major obstacles to those who are wealthy enough not to qualify for legal aid (most working people) but who are not lucky enough to be amongst the top 1% of the country who could fund a legal claim out of their own pockets with no concern over having to pay tens of thousands of pounds to the Defendant if they lose. A mechanism to protect losing Claimants in personal injury claims – Qualified One Way Costs Shifting (QOCS) – exists and was specifically brought in to recognise the fact that otherwise thousands with valid claims would be ‘scared off’ making a claim if they did not have insurance to cover the other side’s costs if they lost (and the cost of that insurance outweighing their likely damages made it simply not economic to obtain). However, despite repeated calls from police claim lawyers such as myself and indeed the Civil Justice Council itself, the government appears to have no intention of extending ‘QOCS’ to cover those who have suffered significant wrongs (such as loss of liberty) at the hands of the police, but who may not also have suffered an injury. This leaves other claims which do involve injury allegations, but also other aspects including wrongful arrest, in a difficult ‘half-way’ house situation and it is dispiriting for me not to be able to advise my clients with certainty that they will have QOCS protection for their claims. As a result, I have seen clients with valid claims becoming ‘frightened off’ pursuing the matter because their inability to obtain practical insurance cover, coupled with the likely costs of paying the Defendant if they lose, makes it too risky an option for them financially.

One might cynically conclude that even if the government didn’t intend this side effect of its ‘root and branch’ reform of the personal injury sector, they are indirectly benefiting from it and are highly unlikely to change it for reasons of political expediency. If you are in the process of slashing police budgets (officer numbers down 20,000 since 2010) so as to cut central government costs, you are unlikely to enact a law to make it easier for valid claims to be pursued against the police (and by extension the public purse) even though it is undoubtedly the right thing to do.

Another side effect of the government’s anti- personal injury claims agenda has been to drive more and more accident claims practitioners to look for alternative sources of work. Lawyers without the specialist experience which I have in this area are therefore starting to ‘dabble’ in police claims which can have severe adverse consequences for their clients. You need somebody who knows what he is doing!

The government has also signalled intent to impose a system of ‘fixed costs’ across claims of all types and values which will also have an adverse effect upon access to justice for those who have been the victims of police wrongdoing. ‘Fixed costs’ really means ‘Capped costs’ and restricts the amount of legal costs a lawyer can recover from the Defendant even if all the work he has done to win his client’s case is entirely reasonable, necessary and proportionate. Inevitably, lawyers will be less willing to take cases on if they are not going to be fairly recompensed for the significant amount of time and resources they have to put into a legal claim against the police which are claims often fought ‘tooth and nail’ by police forces who have far more resources at their disposal than any single individual who has suffered at their hands. ‘Fixed costs’ will not prevent the police ‘throwing the kitchen sink’ at a clam if they wish to (exacerbating the ‘David v Goliath’ situation) which already faces anybody who wants to bring a claim against what is effectively a State institution. The resources available to a police force (financially and in terms of access to legal representation) are so much greater than those of most members of the public and the police very often adopt antagonistic attitudes towards claims, displaying a mentality of not wanting to admit wrongdoing. They may be prepared to ‘over spend’ in the defence of a claim to purposely ‘stringing it out’ by making the litigation process as difficult as possible so as to exhaust the financial resources (and more importantly the willpower) of the individual Claimant.

Nobody could think that this is right; checks and balances between

a) the rights of individuals without major financial resources, and

b) richer and more powerful individuals or state agencies,

appear to be being systematically dismantled by the government’s ‘reform’ process. Checks and balances established over many centuries during which time our legal system grew to be one of the fairest and most admired in the world. But what now lies ahead?

So we are undoubtedly in the middle of an era of fundamental attacks to our justice system and in particular access to justice, changing fundamental tenets of the age-such as old Common Law of this country and including the right to recover damages for personal injury and to be put financially back in the position you would have been had the wrong against you not been committed in the first place. This situation is unlikely to improve if, as part of the Brexit process, the government abolishes the Human Rights Act (as it has previously threatened to do) stripping a whole layer of additional protections and civil liberties from the citizens of this country.

But the fight for justice will go on. There are obstacles but we can overcome them. The judiciary recently took action to disapply ‘fixed costs’ rules in personal injury cases where a Claimant beats a settlement offer he has previously made. This is certainly a step in the right direction and one which may be echoed by a higher court ruling in regards to QOCS to establish that the protection given to that law does apply to claims against the police even if only very minor injuries were suffered. After all, we do not live in an autocracy and regardless of the government’s agenda, the legal profession, (especially in the persons of the higher judiciary) can fight back to modify the law and establish new precedent to set parties back on a more level playing field.

And personally, I’ve fought against the odds on behalf of my clients before and won, and I believe we can continue to do so despite the obstacles in our path. The determination of the Hillsborough families in their 27 year campaign for justice shows that setbacks and obstacles are what they are, but are not the end.

This year I and my clients have celebrated several noteworthy victories in diverse, challenging and interesting cases:

  • 6,500 awarded to a London man arrested and incarcerated by the police despite voluntarily attending for interview at a police station
  • £35,000 for a man who was asleep in his bed only to wake to find himself under attack and being dry stun tasered by officers who unlawfully had invaded his home
  • £26,000 for a young mother who was falsely arrested on suspicion of sexual abuse of her own 3-year-old daughter as a result of a reckless police investigation
  • £17,500 for a Birmingham City Fan smashed in the head with a police riot shield
  • £13,000 for a young football fan bitten without cause by a police dog
  • £25,000 for a victim of domestic abuse groomed and sexually exploited by a police officer
  • £15,000 plus destruction of his personal data (including DNA sample and fingerprints) of a young man arrested without reasonable suspicion for rape (in my opinion, the police never suspected he was the culprit at all but reprehensibly wanted to use the ‘pressure’ of the arrest to make him provide them with a statement regarding the person they really suspected)
  • £22,500 for a disabled young Black man wrestled to the ground by two police officers after a ‘routine’ traffic stop (in my opinion, a traffic stop that was in the first place without any foundation other than that of ‘driving whilst Black…’)
  • £63,500 for a man who fled to this country to escape persecution at the hands of Robert Mugabe’s tyrannical regime in Zimbabwe, who suffered a severe beating at the hands (and feet) of British police officers after speaking up on behalf of another young man who was being assaulted by bouncers.

I continue to relish the challenge and the fight. I derive immense satisfaction from these victories which always go so far beyond ‘mere’ monetary compensation in what they give back to my clients such as the sense of justice, restored dignity, faith in society, personal satisfaction which they absolutely deserve.

Most of us aspire to do something meaningful with our lives, to serve something greater than them, to have something to look back upon with pride at the end of each and every year. I consider myself immensely privileged and fortunate to represent people who have been mistreated by the police; to be able to fight on their behalf and secure for them the vindication that they deserve and to help them hold the police to account for the greater good of the individual and society, to play my part in making the system fairer.

It goes without saying but deserves to be said at this time of year in particular, that I couldn’t do what I do without the bravery and determination of my clients who have overcome the trauma of their suffering at the hands of the police to come to me in the first place and have the strength of their convictions and the character to see through to the end what can often be a bitter and hard-fought but ultimately rewarding legal battle.

So at this time of year, as ever, I just want to say to all of my clients – past, present & future – that you have my utmost respect and I am proud to be continuing the fight for justice on your behalf into 2017 and beyond.

The Untold Story of Police Detention

Iain Gould solicitorBy Iain Gould, solicitor

According to a recent report, hundreds of people have killed themselves shortly after being released from police custody in England  & Wales over the past 7 years.

The Human Rights watchdog, the Equality and Human Rights Commission (EHRC) has said that it had “unearthed serious gaps” in the care of people who had been arrested and taken into custody. Over the past 7 years, 400 people in England and Wales have killed themselves following release from Police custody. Almost all the deaths happened within 48 hours of release.

David Issac, Chairman of the Commission, said “When the state detains people, it also has a very high level of responsibility to ensure they are safely rehabilitated back into their communities, particularly those who may be vulnerable”.

The Home Office acknowledged that while the figures showed a slight fall in the last year, every death in or following police custody “represents a failure and has the potential to dramatically undermine the relationship between the police and the communities they serve”.

Much effort has been made in recent years to reduce deaths in Police custody but in my experience, little consideration is given to the welfare of individuals following their release from custody.

Many of those arrested will undoubtedly feel high levels of shame and social exclusion because of what they have been accused of, for example sex offenders. In my experience however, several will experience similar emotions simply because of the very fact of the arrest and their treatment by the arresting and/or detaining Police Officers.  This is especially true for those who are innocent, of good character and who perhaps  are not what the law terms  “a person of customary phlegm” or normal fortitude, i.e. they have a history of anxiety and depressive symptoms and are therefore at risk of a further depressive episode in the course of their  lifetime.

It is difficult for those of us who haven’t personally experienced it to comprehend the sense of utter dismay felt by an innocent person upon arrest and detention.  You are brought into a custody suite through doors with special locking devices and presented to the Custody  Sergeant. There, you are advised of the reasons for your arrest in very brief terms, stripped of your possessions, interrogated as regards your personal health and welfare and then led to a cell for an indeterminable  length of time. The cell is a bare room with bars on the window, a wooden bench, and a lavatory possibly not maintained to the highest hygienic standard.  There is a small grating in the door and you are obviously locked in, and very much alone, in a totally alien environment.

You’ve got no shoes on by this time and your belt has been taken away and so have all your possessions including your watch and phone – you no longer feel in control of yourself, you are under somebody else’s control and authority.

This is clearly an intensely stressful and depressing situation to find yourself in.  Most people can cope with such an experience but for some, those without ‘customary phlegm’, their resolve may not be so robust.

I recently concluded a claim on behalf of an elderly gentleman of exemplary character from Brighton who I will call Brian.  He was accused of assaulting another man some 7 weeks earlier.  Police Officers attended his home address and invited him to attend the Police Station which he did the following day ‘for interview’.  Upon arrival, he was formally arrested and held for several hours during which time he was interviewed.  He was released on Police bail, and upon his return was again locked up for several hours, re-interviewed and finally charged.

The subsequent prosecution brought against him failed (it was discontinued shortly before trial).

I am satisfied that Brian was entirely innocent.  Notwithstanding this and the fact that Brian was confident he would be acquitted at trial, Brian found the fact of arrest to be overwhelming and his life turned upside down.

Having taken lengthy instructions and intimated a claim against Sussex Police, I commissioned a report from a Psychiatrist  to comment upon my client’s experience and impact on his life.

What follows are extracts from the Psychiatrists report;

PC Brown came from the back and arrested the Claimant.  They took him through to the custody suite. There they ‘processed’ him, as they put it.  Everything seemed to be numb.  He felt that it could not be happening.  It was surreal.  He was going through the motions. 

In the meantime, his solicitor had a meeting with PC Brown.  His solicitor then spoke to the Claimant and told him what the accusation was.  He was told that they  were prepared to offer him a caution.  The only further detail was dates and the detail of the allegation which was that he had ‘head-butted’ someone. They did not identify the victim. 

Then they interviewed him.  They talked about the area where the assault occurred.  He admitted that he did frequent the area.  In the latter part, he was shown two photographs of the injured party.  He could not see any injuries and he did not recognise the person.  PC Brown said that he matched the description (although subsequently they found out that he did not).  He was then put in a cell.  He was in and out of the cell during the night. 

Then it was suggested  that he should take part in an identification parade.  In order to confirm his innocence, the solicitor suggested that he should participate.  This involved having his photograph taken. It was as the Claimant was about to leave that he saw the details of the alleged assailant on a document in his solicitor’s hand and pointed out that the description did not match him. 

On 25 August he was taken back to the police station and charged.  On this occasion he was put in a cell for longer as his solicitor had not arrived. They laughed when they charged him.  He did not think that it was very funny. 

Initially everything seemed a bit of a blur.   He was still going to work.  His faith in the system was such that he believed that it would resolve itself.  So up to December 2010 he continued to work. Then he realised that he was not coping and things were getting on top of him. 

He then went downhill.  All he could do was watch television.  He was not doing any housework. His personal hygiene was being affected. 

His sleep was dreadful.  He would nod off during the day as he was so exhausted.  He would sleep for only short periods and then wake churning it all over in his mind.  His appetite was all over the place.  He was referred to a dietician.  His libido became non-existent.  His concentration was dreadful.  He could easily wander off.  Sometimes he would forget what he was doing and go and do something else. 

He is better but he still gets a physical feeling inside when the doorbell rings – his stomach twists.  He thought that he had overcome the problem with police cars.  When they were on holiday in Spain a police car pulled up and he found himself trembling, he felt a knot in his stomach and he thought that they were coming for him again. 

His sleeping pattern is still not good.  There are times when he falls asleep exhausted and then wakes in the middle of the night wide awake with his mind rushing over all sorts of things.  At the weekends if he does not have work, he wakes at the normal time but he feels too tired.  He still feels quite lethargic.   It is now an effort to do anything.  His libido is getting better but it is helped by tablets.  He has not recovered his interests. 

When he is asleep, he has occasions when things flash though his mind such as police cars or police officers or something to do with being enclosed in  the cell and not being able to get out.  The main thing is feeling trapped, enclosed and unable to get out.  He has sometimes woken from such experiences with a start and quite clammy and sweaty. 

Anything official, he does not trust.  He cannot shower any more as he is having panic attacks.  He has not flown anywhere as they shut the door on the passengers.  He sleeps with the bedroom door open. 

Whenever he sees a police car he thinks they are coming to get him again.  He gets this awful feeling in his stomach.  He feels that they want to do him harm and not help him.

 It is almost every night that he has dreams about the incident as it is not behind him yet.  He then referred to “the shutting of the cell door and the dank coldness, blank concrete walls”.  He referred again to how seeing a police car or a police officer or police community support officer can trigger ‘it’.  By ‘it’ he means that his stomach knots and he has a feeling like almost the opposite of goose bumps over the whole of his body and it feels terrible.  This happens a couple of times a day.  It can take half an hour or more to recover.  It may involve walking in the opposite direction to the stimulus. 

I asked if he had changed.  He said that he had been avoiding social events, meetings and in particular anything  confrontational in case people think that he is a bad person, “I automatically think that they may think I am a bad person.” 

If someone disagrees, he thinks that he has done something wrong whereas previously he would stand his ground.  He does not have the confidence that he had previously.  His confidence is less than zero. 

He is afraid that no one will believe him.  He is held back from saying things that we know are correct.  He would have an opinion previously but he does not have one now.

 Previously he enjoyed his work.  Now it is a chore.

 3 months after  the initial arrest, the Claimant attended his General Practitioner complaining of anxiety and panic attacks.  He was having episodes of swearing and shallow breathing.  When taking a shower he felt as though he was being smothered.  He had palpitations.  His sleep was disturbed by panic attacks.  The general practitioner prescribed anti-depressants. (He continued to see his GP on a regular basis until he was referred to his local community mental health team).

Brian’s therapist subsequently reported as follows –

Before 2010, Brian saw himself as a principled man, who helped everyone and used to interact widely with other people. Since the trauma, he said this had altered his self-identity where he now sees himself as incompetent, weak and bad.

In a later session, the therapist reported that – I provided psychoeducation about the memory in PTSD, and attempted to normalise his experiences.  He described himself as a law-abiding and principled man, who had a strong sense of right and wrong. The trauma has jeopardised his sense of identity and shattered his world, what his identity is – and the people he expected to keep him safe, had not done so.

At present validation is very important to Brian, he fears not being believed by others still and this had led him to imagine that people will accuse him or expect the worst of him.

Fortunately this was a case where, with the help of his partner, his GP and his local Community Health Team, Brian was able to get back on his feet.  After 6 months of treatment, my client’s therapist referred to him as having improved immeasurably. However, it is a salutary  insight into the kind of trauma which people  experience when that cell door is closed upon them, and how many need time, help and the right support to  escape  from the feelings their imprisonment has burdened them with – long after the cell door is physically unlocked, many people remain mentally trapped and isolated within it and those whose cry for help  is not heard or who lack the right support may indeed take extreme action to escape those feelings.

Despite rejecting his complaint, following my intervention, Sussex Police admitted liability for false imprisonment. This was a case in which there was simply no need to arrest  and incarcerate Brian, as he had voluntarily attended for interview and therefore his arrest and detention was unlawful and his claim settled for £30,000 which reflected his period of unlawful incarceration, his psychiatric  injury and lost earnings whilst incapacitated.  Brian was in my opinion fortunate to receive the support that he did otherwise he too could have been one more number in that deeply sad statistic with which  I opened this blog.

Contact me for help with your actions against the police using the form on this page.

 

Birmingham City Football Fan Assaulted by Police Officer

Iain Gould solicitorAccording to latest figures, Birmingham City supporters top the league of shame when it comes to football related arrests. The club’s fans were arrested more times than any other club in the top five divisions of English football.

In light of that statistic, one can imagine the pressure, both internal and external on the officers of (invariably) West Midlands police force to maintain law and order before, during & after any league or cup game.

It no doubt encourages greater pre match preparation on the part of the Police, consideration of “intelligence”, identifying violent troublemakers or “Nominals” as they’re known and ensuring sufficient resources and manpower are available to escort fans to and from and during the game.

It certainly does not however justify wanton, casual violence against any Blues supporter as one officer of West Midlands is now finding out to his cost.

PC Smith was deployed as a football spotter at a local derby game and was attached to an Operational  Support Unit responsible for escorting Birmingham City Supporters from a nearby Train Station to the match.  His specific role was to gather evidence of public order offences by spotting and identifying known high risk “nominals”.

My client on this occasion was one of the Birmingham City Football fans who PC Smith was escorting and who was going to the match.  He had a ticket and was looking forward to supporting his team. He is a man of good character and was not a “known high risk nominal”.

As the crowd of fans neared the ground, they were stopped by a line of Police Officers adjacent to a large set of double gates which led directly into the ground.  PC Smith was one of the officers.  My client began using his iPhone to film the situation.

Whilst standing filming, suddenly he felt a sharp pain as his left hand was struck by something hard. The force of the impact caused him to drop his iPhone and caused damage to his watch.  The strike came from his left hand side and as a consequence, he turned and saw PC Smith standing directly to his left holding a baton.   My client knelt down to pick up his phone and immediately noticed that his left hand was bleeding.  He entered the ground and approached a different Police Officer to report the incident.  The Officer refused to record his complaint.  He then sought medical attention.  The following day, he attended hospital for treatment.  He was diagnosed with a fracture to his left hand. As a consequence of the injury, he was unable to work.

Fortunately, my client had the footage from his iPhone which showed the incident.  Specifically the footage shows a line of Police Officers involved in crowd control, when an Officer’s baton is then seen coming towards the phone in an overhead downward motion.  The filming stops abruptly as the phone is dropped.

My client lodged a complaint to the Independent Police Complaints Commission who launched a full investigation.  All available evidence was gathered including other footage from hand-held video cameras and body worn video of various Police Officers from both West Midlands and British Transport Police.  Owing to the serious nature of this incident the investigation was carried out by the IPCC themselves rather than being delegated to the police force whose officer was the subject of the complaint (West Midlands) as is usually the case.  I have blogged before about the often unsatisfactory nature of a complaint investigation process where the police ‘police’ themselves.

The footage which was gathered showed my client intermittently in the crowd.  He clearly had a device in his hand (the phone) and whilst the crowd around him was pushing him towards the officers, he was not acting in an aggressive or confrontational manner.

My client can be seen standing at the front of a crowd of supporters. A shout of ‘hold the line, hold the line’ can be heard from the Police.  This is then followed by a Police shout of ‘Show of force, show of force’.

PC Smith can be seen with his baton in his right hand, raised above his right shoulder with his left arm outstretched making a pointing gesture towards the supporters.

PC Smith can then be seen to raise his baton in the air and to swing it in a forceful downward movement.

The IPCC carried out an extensive investigation, reviewing all evidence that had been gathered and interviewing all witnesses.

As part of the investigation, PC Smith himself was interviewed under caution.

He reported that he had attended a pre-match briefing where officers were informed that it was believed that 250 known violent Birmingham City Supporters would be amongst the crowd and as such a “zero tolerance” approach would be taken in relation to these individuals.

He recalled that he found himself present in a line of officers that was stood between a crowd of Birmingham City Supporters and the insecure gates to the ground. The officer felt the situation was very volatile and that supporters were trying to rush against the line of officers in an attempt to break the police line.

PC Smith was aware that a command had been given by the OSU Inspector to show a use of force.

The officer stated that he feared for his own safety and felt particularly vulnerable.

He reported that whilst focusing on a known violent nominal at the front of the crowd, he suddenly became aware of a light shining in his eyes.   The light, such as it was, was in fact coming from my client’s phone as he filmed the scene, but was alleged by PC Smith, in my opinion entirely over dramatically to be like a ‘flash bang’ or ‘smoke bomb’ (not a known feature of Apple products in my experience).

PC Smith says he then made the decision to make an overhead baton strike to remove the light from his field of vision.

In doing so, he accepted that he had hit my client’s hand and noted afterwards that he saw a mobile phone on the ground with the light still shining.

PC Smith denied that he had used excessive force.

The appropriateness of PC Smith’s baton strike in the general direction of an illuminated light source must be questioned.

Was the use of such force necessary and proportionate in the circumstances?

Unlike the Police Officers confronting them, the football fans, including my client were not wearing any protective head-gear.  In lashing out at an unknown target with an over-head strike, in response to the provocation which at best can be described as ‘glare from a phone screen’ PC Smith was literally endangering life and limb of my client and other people around him.

Don’t just take my word for it, these are the comments of the IPCC investigator:-

[The overhead downward baton strike luckily connected with a green strike area, could just as easily have connected with a red area and resulted in a fatal injury]

Fortunately my client suffered only a broken bone as a result of the strike.  However, even this took a number of months to heal.

Following review of all the evidence the IPCC have concluded that PC Smith has a case to answer, and he will now face a misconduct hearing.  This in my opinion is only right and proper.

In the meantime, on behalf of my client I have intimated a claim against West Midlands Police.

Following investigation and no doubt cognisant of the findings and recommendations of the IPCC case worker, West Midlands Police have admitted full liability and have agreed to compensate him for his injuries and losses.

I am now in the process of commissioning medical evidence which will identify the full nature and extent of my client’s injuries and assessing and determining my client’s losses.

PC Smith’s fate is presently unknown but at least my client now knows that he will be compensated.

In the meantime, I reflect on other similar cases I have dealt with involving the mistreatment of Birmingham City supporters by West Midlands Police, including that of my client Chris in which an officer delivered a deliberate head strike with the ‘blade’ or edge of his riot shield.

When shields and batons are being used in this fashion against non-violent fans, amidst police cries of “Hold the line!” and “Show force!” reminiscent of macho dialogue from the film Gladiator, we have to question the mentality and training of some elements of the West Midlands Police Force who seem to be casting themselves in the role of Romans versus Barbarians, and using militaristic tactics against unarmed and unarmoured opponents.

Contact me for help with your actions against the police using the contact form on this page.

Is Police ‘Conflict Management’ Training Working?

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

Photo of John Hagan, solicitor.
John Hagan, solicitor.

Those of us who want to live in a civil society, where violence is always the last resort, and not some version of a Judge Dredd comic, in which a ‘hardcore’ police force shoots people for littering, may have been dismayed by the reaction of some sections of public opinion to a video released this week showing a Metropolitan police officer shouting at a motorist and viciously smashing the motor car’s windscreen with his truncheon, before trying to cut his way in through it with a knife.

In the video the police officer can be seen confronting the motorist (identified in press reports of this story as Leon Fontana), who, perhaps not coincidentally, is a young Black man. My colleague Iain Gould has previously blogged about the dangers of “Driving whilst Black” i.e the perception that black men are disproportionately targeted by the police for traffic stops.

The police have powers under S.163 and 164 of the Road Traffic Act 1988 to require drivers to stop their vehicles and produce their licence and insurance and confirm their identity. It does not however empower the police to require that a motorist who has been stopped must exit his vehicle, nor to require that he hand over his car keys.

Whilst it is true that Leon states he is not going to get out of the car, he is otherwise co-operating with the officer, and is not refusing to let the officer check his details. When the officer states that he is concerned that Leon might just drive off, Leon removes his keys from the ignition and places them on the dashboard…then within 30 seconds of the conversation beginning the officer is screaming “Get out of the car! You’re not allowed to drive it!” and starts smashing the windscreen viciously.

It appears that the officer has just received some information suggesting that Leon may only have a provisional licence (this subsequently proves to be incorrect, as it is a case of mistaken identity, cleared up within moments, as soon as other officers become involved…). However the officer immediately reacts to this information by shouting “Get out the car – you’re not allowed to drive it!” and within 15 seconds has started to pummel the side of the car with his truncheon before the man inside has even had a chance to respond. The officer is now screaming his command “Get out of the car!” as if he was involved in a life and death situation rather than a routine traffic stop. If a member of the public had been behaving like this – basically attacking the car and shouting at the top of his voice – he would surely have been arrested. The officer appears to have no impulse control in this situation, and there is no sign that he made any attempt at a reasonable and civil discourse with the driver. Surely this is not how we want our police officers to behave, nor why we empower them with special authority to inflict violence or commit damage to property. The officer was, in my opinion, behaving in a totally unprofessional and irresponsible manner.

As the footage continues, the motorist can be heard telling the attacking officer (in an entirely calm tone of voice) that he has a licence and insurance. The officer informs the motorist “You are not qualified, you’re not allowed to drive” apparently having jumped to an unshakeable belief that the motorist is an unqualified individual without going to the trouble of listening to what he is being told, or making any effort to check documents and establish the driver’s actual identity.

Manifestly, the police are here to reduce violence and aggression in society, not actively introduce it into otherwise calm situations (the motorist had clearly responded to police instructions to stop his car and was talking to them through an open window).

If somebody tells an officer that they have been mistaken for somebody else, surely the officer should spend at least a minute or two investigating that possibility in an amicable manner rather than shouting the person down and smashing his windscreen to pieces? And what purpose was being served by the officer smashing the windscreen – surely he didn’t intend to pull Leon out through it? The destruction of someone’s property by a police officer to make them comply with instructions during a low- level traffic stop is in my opinion a crazy and unjustifiable turn of events.

In my opinion, the police officer’s actions can only be characterised as anti- social, thuggish behaviour which clearly flies in the face of the norms of civilised behaviour as well as the specific training which police officers are given as to how to resolve a conflict situation.

Police officers are extensively taught the techniques of ‘conflict management’ which emphasise that violence must be a last resort after non- violent approaches to resolving the situation in the form of ‘officer presence’ and ‘tactical communications’ are first considered. Does anyone really doubt that the officer pictured in this video could have had a productive conversation with the motorist had he so chosen?

Sadly, as I discovered during my appearance on the Jonathan Vernon Smith (JVS) Show on BBC 3 Counties radio last week, some people do condone the officer’s behaviour.

You can listen to my interview here:

One caller to the show stated “the guy in the car should be prosecuted” whilst another called the motorist a “toe rag” and accused him of “winding up” the officer by the act of filming the confrontation.

JVS himself, perhaps adding fuel to the fire of his listener’s fury, speculated aloud that the police may have believed Leon to be a dangerous criminal with a history of using weapons, and that he might even have had “a gun in the glove box”. However, there was no basis for this assertion. All the evidence available to us is to the effect that the worse the police suspected of Leon was that he was driving without a full licence or insurance, which is a non- imprisonable offence.

The police are entrusted with special powers to use force against other citizens, but it is only right that the officers respect the safeguards that the law has put in place to prevent the abuse of those powers and to ensure that we have a functioning civil society in which people can have trust in the police – without which, they obviously cannot do their jobs and the risk of harm to both officers and citizens generally increases.

Police powers of arrest without a warrant are enshrined in the Serious Organised Crime and Police Act 2005 S.110. In order to exercise his power of arrest, the officer must have a reasonable belief in its necessity on the basis of one or more of the following criteria –

  1. that:
  • the name of the relevant person is unknown to, and cannot be readily ascertained by, the constable,
  • the constable has reasonable grounds for doubting whether a name furnished by the relevant person as his name is his real name,
  1. that:
  • the relevant person has failed to furnish a satisfactory address for service, or
  • the constable has reasonable grounds for doubting whether an address furnished by the relevant person is a satisfactory address for service,

3. that the constable has reasonable grounds for believing that arrest is necessary to prevent the relevant person:

  • causing physical injury to himself or any other person,
  • suffering physical injury,
  • causing loss of or damage to property,
  • committing an offence against public decency, or
  • causing an unlawful obstruction of the highway,
  1. that the constable has reasonable grounds for believing that arrest is necessary to protect a child or other vulnerable person from the relevant person.
  2. that the constable has reasonable grounds for believing that arrest is necessary to allow the prompt and effective investigation of the offence or of the conduct of the person in question, or
  3. that the constable has reasonable grounds for believing that arrest is necessary to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.

It is highly questionable whether the officer in this case could have possibly had a reasonable belief that any of the above conditions applied to Leon Fontana. In which case, he had no power to arrest Leon, and no power to use force against his motor car to effect an ‘arrest’ – which renders his smashing of the windscreen not only a civil but possibly a criminal offence.

Contrary to what some of the listeners of the JVS show apparently believe, there is no seventh criteria of “having reasonable grounds for believing the person to be a toerag” nor any power for the police to arrest someone who is filming their encounter, or refusing to exit a vehicle, if there are no other circumstances such as a refusal to identify themselves or an attempt to abscond or obstruct the investigation of a suspected offence on the part of that person.

Here, as we can all hear, Leon was offering to identify himself – or at least was trying to go through that process in a respectful manner with the officer, but was being obstructed by the officer’s unreasonable anger towards him.

This case reminds me of another I have recently been involved with, also a video taped encounter,  in which police officers stopped a car on suspicion of ‘no insurance’ and in which the driver – a middle- aged white man as it happens – resolutely refused to identify himself to the officers involved and repeatedly made it clear that not only would he not exit the car, he would simply not identify himself or produce any documentation. The officers attempted to reason with him for  approximately 8 minutes, before deciding to discharge a CS gas spray into the car.

Whilst I do not agree that the CS gas should have been used, it is perhaps telling that in a confrontation with an older, white motorist the police gave considerably longer to conversation with an individual who was a lot more obstructive, than did the officer in this video towards a young black man.

I am sure that in the present case, all the unpleasantness could have been avoided, if the officer had just engaged in the civil conversation which Leon was offering him.

But you may think I am biased in that assertion, being a lawyer primarily working on behalf of people who believe they have been the victims of police misconduct.

In which case I will call as my next witness, the other contributor to the JVS show that morning, Peter Kirkham, who was formerly a Detective Chief Inspector with the Met.

Mr Kirkham acknowledged that the officer’s behaviour was “not a good example of conflict management skills” and made the point “when you’re dealing with a conflict situation the idea is you’re not making it more aggressive”.

Acknowledging that it was plain from the video that the officer has lost his temper, Mr Kirkham concluded by saying that if he was the supervising officer he would certainly be investigating the conduct of the officer concerned, whose actions could amount to criminal damage if there was no justification for his use of force.

The officer appears to have suffered a moment of madness; sadly for him he must now face the consequences of this. The uniform he wears is a symbol of the special authority vested in him but it does not, and should not, give him immunity from accountability for actions which if perpetrated by a member of the public may well have resulted in a night in the cells.

 

Why West Mercia Police Paid £25,000 Compensation for Misfeasance in Public Office

Iain Gould solicitor
Iain Gould, solicitor.

I have previously written about ‘Clare’s’ case; a young vulnerable victim of domestic abuse groomed and sexually exploited by a serving Police Officer, PC Powell.

I am pleased to report that Clare’s case has now been successfully concluded; on my advice, Clare brought a claim against West Mercia Police for misfeasance in public office and successfully recovered £25,000 compensation plus her legal costs.

Clare first contacted me shortly after PC Powell had been sentenced to 15 months imprisonment at Gloucester Crown Court for Misconduct in Public Office. PC Powell had admitted that:

  • When acting as a public officer he wilfully neglected to perform his duty and/or wilfully misconducted himself
  • To such a degree as to amount to an abuse of the public’s trust in his office without reasonable excuse or justification.

per Attorney General’s Reference number 3 of 2003 [2004] EWCA Criminal 868.

Clare felt that PC Powell’s personal behaviour was reprehensible but that West Mercia Police were also at least partly responsible, as PC Powell had been warned for similar misconduct in 2008 but had been allowed to continue in office without adequate supervision, and in particular had been allowed to continue to have conduct with victims of domestic abuse.

On review, it struck me that Clare had a potential civil claim for misfeasance in public office, an ancient tort originally developed during the eighteenth century for the benefit of electors willfully refused the right to vote and increasingly deployed in civil actions against the police in more recent times.

What is misfeasance in public office?

In order to establish a successful claim for misfeasance, the Claimant must show that:

  1. A public officer;
  2. Exercised a power in that capacity; and
  3. The officer intended to injure the Claimant by his/her acts.  This is known as ‘targeted malice’; or
  4. The officer knowingly or recklessly (in the subjective sense) acted beyond his/her powers.  This is known as ‘un-targeted malice’; and
  5. The officer’s act(s) caused damage to the Claimant; and
  6. The officer knew or was subjectively reckless to the fact that his/her act(s) would probably cause damage of the kind suffered by the Claimant.

If misfeasance can be established against a serving Police Officer then his Chief Constable, and therefore in effect the whole Force as an organisation, becomes ‘vicariously’ liable to pay damages to the wronged/injured party.  In a case like Clare’s this would be an eminently fair result, owing to the failings of the Force and Senior Officers in allowing PC Powell to prey upon domestic abuse victims (as highlighted in my previous blog).

Proving Clare’s Claim

In support of the claim for misfeasance, it was clear that PC Powell was acting as a public officer in the West Mercia Police Force when he abused Clare:

  • PC Powell was responsible for investigating crimes and incidents in which Clare was a victim and for taking action and providing support to Clare in respect of the same.
  • PC Powell engaged in sexual relations with Clare during his working hours and whilst on duty (and on a number of occasions whilst wearing his uniform).
  • In all the circumstances, there was clearly a very close connection between PC Powell’s conduct and the performance of his duties, such conduct having taken place in the performance or purported performance of his policing duties and his relationship with Clare having been established through the position of authority he held as the investigating officer in her case.

During the course of his office, PC Powell exercised powers as a Police Officer and  was responsible for the following acts:

  1. Sending and receiving text messages and telephone calls of a personal and sexual nature to Clare, a victim of domestic abuse.
  2. Requiring Clare to attend at the police station on a number of occasions.
  3. Attending Clare’s home address on a number of occasions.
  4. Instigating and engaging in a sexual relationship with Clare, a victim of domestic abuse.

Although often difficult for Claimants to prove bad faith on the part of the officer, here it was blatantly apparent that PC Powell acted with malice in that he:

  • Knew that Clare was a vulnerable victim of domestic abuse and that she would, or would be likely to, respond to apparent care, concern and attention on his part and thus knew and intended or did not care that he could injure Clare, by instigating an inappropriate sexual relationship with her;
  • Specifically targeted Clare as a vulnerable victim of domestic abuse in order to exert control over her and for his own sexual gratification;
  • Instigated a personal and sexual relationship with Clare in flagrant disregard for his professional duty as a Police Officer assigned to her case.

In all the circumstances, it was apparent that PC Powell knew of, or was reckless to the risk that his acts would probably cause harm to Clare, but proceeded to act, indifferent to that risk

By reason of PC Powell’s conduct, Clare had suffered material damage, specifically she reported psychological trauma as a result of the relationship and such injury was reasonably foreseeable specifically;

  • Immediately following the incident, Clare experienced disturbed appetite, disturbed sleep, low mood and a degree of weight loss.  Clare lost confidence, which affected her self-esteem.
  • Clare felt as though PC Powell had sexually exploited her.  Clare felt ‘dirty’, ‘used’, and ‘stupid’, and as though she has done something wrong.  Clare felt that PC Powell abused her trust.
  • Clare’s view of the police was also affected by the incident and she felt very negatively about the police. Clare said that she would be reluctant to contact the police for assistance in the future.

Notwithstanding the broad nature of this civil wrong, the Courts have routinely issued warnings to lawyers against actions for misfeasance in public office being brought unless there is clear evidence to support a contention of dishonest abuse of power (see Masters v Chief Constable of Sussex [2002] EWCA Civ 1482)  Unlike claims in false imprisonment and assault, the burden of proof lies squarely on the Claimant at each stage. It is a difficult burden to overcome in the absence of clear evidence of bad faith.

Notwithstanding these issues, I was confident of success and agreed to act on behalf of Clare by way of ‘no win no fee’ agreement.

I believe that my robust presentation of Clare’s case encouraged West Mercia Police to admit liability early on. It is a pity that they did not agree settlement terms swiftly but that will be for another blog.

Should the Police “Arrest First” and Investigate Later?

Iain Gould solicitorBy Iain Gould, solicitor

The head of the National Crime Agency, Lynne Owens has been in the news. According to The Sunday Times and quoted in The Telegraph, whilst Chief Constable of Surrey Police she told police officers investigating rape cases to “arrest first” and investigate later.

Owens, who is now head of the National Crime Agency, is said to have made the changes when she was Chief Constable for Surrey Police between 2011-2015.

According to the report, minutes from a September 2015 meeting called by the then Police and Crime Commissioner for Surrey, Kevin Hurley reveal that Owens was asked how the force was going to improve their detection rates for rape.

The minutes record: “The chief constable was keen to ensure officers were robustly pursuing offenders. Officers tended to receive an allegation then wait to make an arrest after gathering evidence. They needed to change this and make an arrest first and then gather the evidence.”

Nick Ephgrave, then Deputy chief constable and who now leads the force, told the meeting that the tactics had raised the rape detection rate from 6 per cent to 15.8 per cent, a significant turnaround in a year.

It is obviously satisfying to see a Chief Constable adopting a robust approach to the investigation of crime but it is imperative that Police forces operate within the legal powers conferred upon them. In my dealings with various Police forces, I am afraid however that tactics of arresting prior to sufficient evidence to form the basis of reasonable suspicion being gathered first are not necessarily limited to Surrey Constabulary. An arrest on suspicion of a sexual crime, such as rape can have serious long-lasting consequences for the person arrested if they were in fact entirely innocent, and have been arrested by the Police simply as part of a ‘fishing expedition’ which effectively amounts to an abuse of Police power of arrest, as I shall explain.

Robert’s Case

I have recently concluded a case on behalf of Robert (name changed for obvious reasons), a student who when just 16 years old, was arrested by North Wales Police on suspicion of rape.

In the summer of 2013, a music Festival took place in North Wales. Robert attended along with several friends.

Towards the end of the festival, a female complainant, Ms A made a complaint to a crisis worker that she may have been raped the previous evening.  Ms A ‘s initial account was as follows;

“I went to the toilet block, talking to two lads.  I went to a tent…..  I don’t remember anything else but I think I have been raped because it hurts down below.  I think I remember one of the boys wearing a red puffa jacket”.

Ms A subsequently gave a statement to the police.  Her recollection of the evening was vague due to her consumption of a large amount of alcohol.  She recalled that the previous evening, she had visited the site toilets with a friend, GH.  While she was waiting outside the toilets for GH, she started a conversation with an unknown white male.  Ms A started kissing this male.  She was then introduced to the unknown male’s friend, “Robert” who was “mixed race” and who was wearing a distinctive red puffa jacket.

Ms A’s next recollection was of consensual oral sex with the white male in a tent.  Ms A also recalled something hard being pushed into her vagina.  Ms A remembered saying “stop, it hurts and I can’t do this”, getting dressed and then leaving the tent.

Ms A was examined by a paediatrician who concluded that she had received trauma to her genital area and that the marks were consistent with an attempt at intercourse.

GH was interviewed and he recalled he had seen Ms A and the unknown male kissing and then walking off together followed by “Robert”.

Several days later, friends and family of Ms A contacted North Wales Police to report that they had identified the mixed race male in the red puffa jacket introduced as “Robert” as my client.

On the basis of this information, several Police officers travelled to my client’s home address and arrested him on suspicion of rape.  Robert was 16 years old, is of mixed race and had never been in trouble with the Police before. He was taken to a Police Station. This was despite the fact that Ms A had never alleged that the mixed race male had any sexual contact with her, but rather his white friend.

At the Police Station and without the least evidential or reasonable foundation, the circumstances of arrest were said to be;

“The Detained Person has been identified as being responsible for rape.  Circumstances are that the I/P recalls being in a tent at the festival and being subjected to rape. D/P has been identified via clothing worn and full description of a male seen with the I/P prior to the incident”.

The necessity for the Claimant’s arrest was said to be to “allow the prompt and effective investigation”.

My client was obliged to provide his personal details.  He was then searched, his personal belongings including his mobile phone seized, and he was then placed in a holding cell where he was subsequently joined by his mother who had been obliged to travel to the Police Station separately.

Robert was subsequently taken for interview. He answered all questions truthfully and directly. The interview was rather meandering and in fact was a fishing expedition rather than fact based enquiry. On review, it was apparent that the officers had no information whatsoever to implicate Robert.  After 58 minutes of questioning, the Duty Solicitor intervened and put it to the interviewing officers that their questions resembled questions which would ordinarily be put to a witness rather than a suspect.   The relevant passage of the interview is as follows:

Solicitor: Sorry, the two times she’s described having sex, oral sex with a white man and then sex, you haven’t given any description as to the person she’s having sex with then.

IO:  No there is no description actually in the notes here I’ve got.

Solicitor:   So that has led you to arrest him as opposed to a voluntary interview or anything.

IO:  The clothing description and …

Solicitor:  She doesn’t say she’s …………….  red puffa jacket

IO:  The jacket also with the description as well, Robert is seen in the vicinity heading in the same direction.

Solicitor:   Is that just because you have a name? Because you’ve been able to pick a name up.

IO:  Hm hm

Solicitor: You arrested him and used him to get your information, that is disgraceful, Robert is 16 and has never been in trouble before.

IO:  I understand the point you’re making.  I’ll make a note of that.

Solicitor:  I’d like you really to get on and finish this interview because it’s disgraceful

Thereafter, the Police advised Robert that he was to be released on Police bail. The Duty Solicitor again made robust representations as to why Police bail was wholly inappropriate and that Robert should be released NFA (no further action). On the basis of those representations, the issue was reconsidered and a decision made to release Robert without charge.

Finally, in the early hours of the morning, Robert was released. Notwithstanding his release, the Police retained 2 T-shirts belonging to Robert and his mobile phone which were eventually returned several weeks later.

Robert was understandably shocked by what happened to him but equally satisfied that he had done no wrong.

Robert is in my opinion a young man going places and despite his arrest was not going to be deterred from getting on in life. He continued his studies and successfully passed several ‘A’ Levels 2 years later.

Robert was however left with a fear of intimacy with girls; he was concerned that if he developed a relationship with a girl, a similar allegation could be made. He was particularly fearful if he drank leaving gaps in his memories. A Psychologist concluded that this fear represented a chronic adjustment disorder but that with time, he would overcome these issues.

The Law

For any arrest to be lawful, it must be founded on reasonable grounds. This necessitates consideration of whether, objectively, it was reasonable to suspect the Claimant of the offence for which he was arrested. It is also necessary to consider whether the arresting officer honestly suspected the Claimant of the offence for which he was arrested. Further, it is necessary to consider whether the decision to arrest was a lawful exercise of discretion, applying the Wednesbury principle of reasonableness: see Castorina v Chief Constable of Surrey (1996)

Castorina was followed in the more recent case of Buckley and others v The Chief Constable of Thames Valley Police [2009]. The following was stated by the Court of Appeal in Buckley:

“Suspicion is a state of mind well short of belief. The threshold for establishing reasonable grounds for suspicion is a low one. It is an inherent possibility in the need for diligent investigations of serious offences than an innocent person may be arrested on reasonable grounds. Importantly, the correct approach to judgment upon the lawfulness of arrest is not to separate out each of the elements of the constable’s state of mind and ask individually of them whether that creates reasonable grounds for suspicion; it is to look at them cumulatively, as of course the arresting officer has to at the time.”

It is clear that the test for reasonable suspicion represents a low threshold for the arresting officer to meet. What is required to reasonably suspect a person of an offence falls far short of what would be required to charge them and thereafter to ultimately convict them of the same offence. The relevant information is that which was available to the arresting officer prior to the arrest, not any information that might have been gained afterwards, for example, during interview.

Every arrest must also meet the requirement of necessity. Section 24(5) of PACE 1984 sets out a number of criteria for the consideration of whether an arrest is necessary.

The application of the necessity criteria was considered in Richardson v Chief Constable of West Midlands Police [2011], in which a schoolteacher successfully challenged the lawfulness of his arrest for assaulting a pupil, after he had attended the police station voluntarily. The decision in Richardson was then considered in Hayes v Chief Constable of Merseyside Police [2012]

In Hayes, Hughes LJ, having acknowledged that it might be quite unnecessary to arrest a schoolteacher who had attended the police station voluntarily, said that the correct test for the assessment of whether an arrest met the requirements of necessity was:

“…(1) the policeman must honestly believe that arrest is necessary, for one or more identified section 24(5) reasons; and (2) his decision must be one which, objectively reviewed afterwards according to the information known to him at the time, is held to have been made on reasonable grounds…”

The Claim

On Robert’s behalf, I intimated a claim against the Chief Constable of North Wales Police. Following investigation, liability was denied. In relation to the commission of the offence, the Police asserted that there were clearly reasonable grounds on which the arresting Officer was entitled to suspect that an offence of attempted rape had been committed by Robert:

  1. A complaint of rape had been made by Ms A;
  2. The paediatrician had concluded that Ms A had received acute trauma to her genital area;
  3. The marks were consistent with an attempt at intercourse;
  4. Ms A identified a mixed race male as being present when she began kissing the unknown white make and went back to his tent;
  5. Ms A could recall walking back to the tent with the unknown white male and the mixed race male;
  6. This mixed race male was described as wearing a red puffa jacked and being in his late teens/early twenties;
  7. Robert was 16 years of age and of mixed race.
  8. Enquiries by Mrs A’s friends and family identified that this mixed race make was Robert;
  9. The descriptive match with Robert was sufficiently proximate to implicate him (see inter alia, Armstrong -v- West Yorkshire Police [2008] EWCA);
  10. Ms A had been under the influence of alcohol and accordingly had an impaired personal recollection of events.

 In terms of the necessity of Robert’s arrest, his arrest was plainly necessary to allow the prompt and effective investigation of the offence and the arresting Officers was entitled to form the view, as he plainly did, that the relevant necessity ground for arrest was made out.  

As settlement terms could not be agreed, it was necessary to issue Court proceedings.

Court Proceedings

On Robert’s behalf, I argued that:

(a) There were no reasonable grounds to suspect Robert of the commission of the offence for which he was arrested.  I relied in particular on the following facts which individually or in aggregate negated reasonable suspicion;

i) Ms A performed oral sex on a white male.  Robert was of mixed race

ii) Ms A gave no description of the male who allegedly attempted to rape her.

iii) Despite being able to identify Robert by name and description, Ms A did not allege at any stage that Robert had himself committed the or any offence.

iv) Robert was identified as being an associate of the possible suspect.  It was apparent that the Police had arrested him so as to gather information as to the identity of the suspect,   not because of any reasonable or otherwise, suspicion to arrest.

(b) The arresting officer did not reasonably believe that lawful grounds for arrest existed;

(c) The arresting Officer did not at the material time honestly and reasonably believe that it was necessary to arrest Robert on suspicion of any offence or for any other lawful reason; alternatively

(d) There were no reasonable grounds for believing that for any of the reasons specified in s24(5) of PACE it was necessary to arrest Robert.  There was no evidence that this young man of good character would not have answered questions voluntarily; further or alternatively

(e) The arresting officer failed to have any or any proper regard to the requirements of PACE Code of Practice G and in particular paragraph 1.3. of the said Code which requires that ‘officers exercising the power (of arrest) should consider if the necessary objectives can be met by other less intrusive means’; further or alternatively

(f) The arresting officer in deciding whether to arrest Robert failed to exercise his discretion lawfully or at all; further or alternatively

(g) At no material time were there reasonable grounds for believing that Robert’s detention at the police station was necessary for any of the reasons specified in section 37 of PACE or at all.

The arrest and detention having been unlawful, it followed that all touching of Robert amounted to assault (ie to search and take his fingerprints/DNA sample) and that the seizure of Robert’s property amounted to trespass to goods.

As is so often the case, the Police denial of liability was nothing other than strategic manoeuvring and after 6 months of further prevarication, I am pleased to report that the Police agreed to destroy Robert’s personal data (fingerprints, DNA and photograph) and expunge the record of arrest from all local and national Police records and pay compensatory damages of £15,000 plus full legal costs.

The case highlights a more worrying trend in Police tactics employed in the investigation of sexual crimes; ‘arrest first, investigate later’, which may give the victim and Police and Crime Commissioners anxious for positive ‘detection’ rates some comfort but fails to take into account the catastrophic impact it can have on any innocent individual who is caught up in such an investigation.

 

Read more of my blog posts about actions against the police here.

Are Police the Real Football Hooligans?

Iain Gould solicitor, asks if police are the real football hooligans.
Iain Gould solicitor, asks if police are the real football hooligans.

By Iain Gould, solicitor

Last week we saw the ugly side of the beautiful game return; images of wanton violence by football hooligans in Marseille at the start of the Euros.

Although only a minority were involved, the trouble tarnishes all football fans who become by default a hated group viewed with suspicion, even hatred, by the police and the public at large. The fans’ comfort, conditions and even their civil liberties are ignored. They can be herded, corralled, subjected to casual violence and anything can be believed of them.

It is against this backdrop that the prospect of bringing a successful action against the police on behalf of a football fan accused of hooliganism or disorder could look hopeless especially in the absence of compelling CCTV footage or other evidence.

Step forward Chris, a man of exemplary character from Birmingham.  Chris supports Birmingham City FC (someone has to!) and has done since he was a lad.

On the 16 January 2011, Chris, then 23 years old, had been in a pub situated close to the City ground in Birmingham with friends watching the televised derby match between Birmingham City and Aston Villa.  During the game, he drank 4 pints of lager.  At the end of the match Chris and his friends left the premises to meet up with another friend who had been to the match itself.  The group joined thousands of other fans who were heading away from the ground.

The group passed another ‘Birmingham City’ pub, outside which a large number of supporters had gathered.  There was also a large contingent of uniformed Police Officers decked out in full riot gear. For whatever reason, the Police officers began to surround the group and usher them forward and away from the pub believing that trouble was going to erupt between the 2 groups (quite why, is a mystery as both groups of fans supported Birmingham City).

So as to achieve their objective, the officers began to use their shields to push Chris and his friends along.

Here’s Chris’ description of what happened next;

“A number of police officers began to surround us. The officers were wearing uniforms, fluorescent jackets and helmets and carrying round shields.  Initially they began to shout “move on” even though we hadn’t stopped moving forward at any time.  Then they started to repeatedly and aggressively push us using their shields, shouting “Move on” despite the fact that we were still moving along voluntarily.

One officer was immediately behind me.  He was Asian, approximately 6’ 2”, medium build, in his early 30s.  He pushed me with his shield 2 or 3 times hitting my back and elbows really hard, so much so that I was shunted forwards.

A second officer who was white, smaller, about 5’ 8” and in his early 40s came running from behind the Asian officer and began pushing me forwards, hitting me harder with his shield, up to 10 times.  Again, I was shunted forward and caused to trip and stumble.

The force used by the 2 officers and their colleagues against me and the others in the group was wholly unnecessary.  We were voluntarily moving forwards at all times and posed no threat to anyone else.  They seemed to be hitting us for the sake of it.

 I was becoming increasingly annoyed.  I turned to the white police officer and put my right hand onto his shield and asked him to stop pushing.  I shouted “fuck off, we’re moving”.

 I turned around with a view to proceeding forward when the officer used his shield and hit me yet again. 

 I turned to remonstrate again and when I did, I noticed a third officer come charging towards me from the back and in between several police officers including the white officer referred to above.

 As the officer charged, he raised his shield above his head, turning it sideways and slammed it into the right side of my head.  With the force of the blow, I stumbled backwards. I turned and the officer then hit me again a second time, to the rear of my head at the bottom of my skull/top of my neck.

Chris realised that he was bleeding.  He had a throbbing pain in his head and neck.  He was shocked and outraged as were his friends.  He staggered away.  Despite his obvious injuries, no officer stepped forward to offer first aid or assistance.  Chris and his friends walked on to a nearby pub where he tended to his injuries and took a photograph.  Later, he returned home.  It so happens that his sister, a serving Police officer with a different police force was visiting their parents.  She accompanied Chris to hospital.  Whilst waiting to be treated, she had the good sense to write down his detailed account of events.  He was later examined; a 1.5cm cut to the right cheek was noted. The wound was cleansed and closed with glue. The laceration left an indented scar which was cosmetically disfiguring and permanent.  In addition to the laceration/scar, Chris suffered daily headaches which gradually resolved over the months ahead.

Are police the real football hooligans? This photo of a riot shield injury shows the damage they cause.
Photo of Chris’ injury caused by a police officer’s riot shield.

Notwithstanding Chris’ detailed description of events, it is important to bear in mind that;

  • he accepts that he had drank 4 pints during the course of a relatively short period of time (1 ½ – 2 hours) immediately before the incident;
  • he accepts that he verbally remonstrated with officers and physically grabbed an officer’s shield;
  • this was a volatile football derby game which inevitably carried with it a perceived high risk of football related violence or disorder;
  • the Police are present in large numbers supposedly to protect not injure;
  • there was reportedly no CCTV footage of the incident.

Although Chris was a man of good character who could provide cogent witness evidence, in context, to an outside observer, the prospects of a successful civil action against the Police might seem slim.

Unfortunately, when the offending Police Officer’s evidence is considered, that outside observer might conclude the prospects of success were next to impossible because of course the officer who struck Chris, Sergeant A gave a very different account;

“As we pushed the group back, I saw one of the group stand still and face towards us.  He grabbed out and grabbed hold of my Police shield as I pushed towards him.  I told the male to “move back”.  I saw the male’s body weight drop and his eyes became fixated on me.  His shoulders dropped and his fists were clenched.  I honestly believed the male was going to attack me.  The male then shouted “Come on then you cunt”.  At that point I was two feet away from the male.  I was unable to reach for any of my personal safety equipment due to holding my police shield.  My visor was down on my public order helmet.  Due to the nature of the incident and the weather conditions my visor was slightly steamed up and my visibility was not as clear as normal.  I used my shield and punched out with the front of the shield which impacted on the male’s face.  The front of the shield made a direct hit with the male’s face which immediately stunned him.  I hit the male as hard as I could, but only struck him to the face once.  I would describe the male as being 6 foot 2 inches tall, 25 years of age, dark hair, thick set.”

Other officers offered some corroboration for Sergeant A’s account.

The Inspector on duty reported as follows;

“As they reached the bus stops underneath the railway bridge, some of the group were leaning back against the shields, trying to stop.  Officers had to physically push them with their shields to keep them moving, as I instructed.  I saw one youth in particular, face the officers and push back hard at the shields.  He continually shouted at the officer directly in front of him telling him to “fuck off!”.  I was 10 – 15 yards from this and I saw the officer to be Sergeant A.  I saw Sergeant A push hard with his shield held in front of him in a correct, trained, manner, forcing this youth backwards, preventing him from stopping.  I could hear Sergeant A shouting clearly “move back” and “get back”.  The youth was resisting going backwards and tried to grab Sergeant A’s shield”. 

Later on, he noticed the same youth who by now “had a small trickle of blood to his left cheek.  I recognised this youth to be the same one that was pushing at Sergeant A’s shield as he was the most aggressive and volatile amongst them.   The injury was so minor I did not feel he required medical attention.

 From the very start of the policing operation, including the match ‘briefing’, it had been stressed that officers must be robust but fair in their policing style.  It is my opinion that Sergeant A had performed his role in exactly the manner which I, and West Midlands Police, expected.

 I have performed a number of duties as a PSU Commander with Sergeant A as one of my Serial Officers.  He has an excellent leadership style and receives a great amount of respect from his team.  When I perform PSU Commander duties at ………….  football matches, Sergeant A is one of the first names on my list that I would want on my PSU.  This is because I can rely on his firm policing style at times when it is needed but in a proportionate manner.

 In relation to the allegation that Sergeant A had used excessive force I can say that I completely and utterly dispute the allegations.  If I had felt that Sergeant A had acted inappropriately I would have dealt with the incident myself”.

The Asian officer described by Chris added further corroboration; he said he was “looking in the direction of Sergeant A and said to him, “Come on then you cunt”.  I could see that he looked extremely aggressive and he had his fists clenched.  Sergeant A then hit him with his shield towards his face.  This appeared to have the desired effect and the male moved on”.   Other officers gave a similar account.

Shortly after the incident, Chris lodged a formal complaint.  6 months later, Chris received a 20 page investigation report.  It transpired that another officer present had misgivings about the conduct of Sergeant A and no doubt in difficult circumstances had reported Sergeant A to his Inspector who in turn reported to Professional Standards.

Sergeant X recorded that;

“I directed my serial to gently nudge the group with their shields to push them up the road… As we were doing this the serial, which consisted of 6 officers plus myself were explaining to the group why they needed them to move.  I noticed the other serial headed by Sergeant A were also using their shields to nudge the group up the road.  My serial was at the front/side of the group and I was situated behind them so I could monitor the group.  Sergeant A’s serial was behind the group containing them.  Both serials were moving the group away from the ground.  As we were moving the group they were somewhat reluctant and slow moving, two or three members of the group began to take exception to our actions and question our intentions, they were using phrases such as “stop fucking pushing us”….  They wasn’t being aggressive, just ‘arsey’ swearing at us.  At this point we continued to nudge the group gently up the road.  One officer from the serial to my left… ran through the others quickly and hit male 1 with the flat of his shield in his back.  I noticed that this was Sergeant A….  At the time male 1 had turned to face and ask “what the fuck you pushing us for?” as he has turned that is when Sergeant A moved forward to strike him in the back.  He hit male 1 hard as he stumbled violently forwards and managed to stay on his feet by putting his hands on the wall underneath the railway bridge.  When this male re-gained his balance he turned toward Sgt A and said “what the fuck did you do that for you twat?”….  Sergeant A has then struck male 1 again causing him to stagger backwards.  Male 1 then remonstrated with Sergeant A as to why he kept hitting him….  Male 1 was still shouting…. clearly unhappy with what had happened, his hands were open and not making a fist and although very vocal he was not offering any physical threat….  I then saw Sergeant A turn his shield so that the edge/rim was pointing towards the male 1.  I know this technique is taught in public order and is called ‘Blading’.  This is taught to be used only when encountering serious levels of violence and as a last resort.  Sergeant A has pulled the shield back above his head and struck the male with it.  Both strikes were towards the male’s head and face area on the right side….  I felt Sergeant A wasn’t in any danger throughout the incident and felt that his use of force in this situation was inappropriate.”

Another officer who was in Sergeant X’s serial also said that he “saw a round shield above officers’ heads at one point” but that he could not identify the officer it belonged to.

Notwithstanding Chris’ account and that of Sergeant X, the Professional Standards Report dismissed the complaint by concluding;

“Sergeant A describes Chris as standing directly in front of him and threatening him directly. The accounts provided by the Asian officer corroborate Sergeant A.

 It must be noted that when officers use any ‘use of force’ technique it is the responsibility of that individual officer to account for and justify that action based upon their perception of the incident.

 The incident was obviously volatile with a potential for major disorder.  Whilst Chris states that he was moving on as requested; he clearly was offering some resistance to simply moving on.  In the circumstances, Sergeant A therefore used necessary force.  Sergeant A has stated that he felt in fear of his safety based upon his perception of the incident.

 Whilst the area targeted by Sergeant A raises some concern, the question to be addressed is whether the force used is actually excessive. The investigating officer feels that having considered all of the evidence; the force used upon Chris by Sergeant A was necessary, proportionate and reasonable in the circumstances.

Really?  Even allowing for some resistance from Chris, or at worst, threatening behaviour, was the officer’s use of his riot shield as an offensive weapon necessary, proportionate and reasonable in the circumstances?  In my opinion this was a typical Police ‘whitewash’ of a legitimate complaint.  The report’s conclusions were nothing other than perverse.

Chris lodged an appeal to the Independent Watchdog, the IPCC.  On review, the case worker concluded that Sergeant A had, on the balance of probability used the edge of his shield to hit Chris.  The case worker went on;   “The use of the edge of the shield is a recognised method and (force) guidance quotes that “In certain circumstances where the officer feels that there is no other alternative available to them and it is reasonable in the circumstances and absolutely necessary to the level of force being used or threatened, then the edges of the shield can be used by being driven towards the offender.   This use must be the minimum amount necessary and proportionate to the seriousness of the circumstances they find themselves in”.

In the circumstances, the Professional Standards Department’s findings were overturned and the IPCC directed that Sergeant A be reprimanded.

On Chris’s instructions, I subsequently brought a civil claim for compensation against West Midlands Police. The initial response of West Midlands Police was to neither admit or deny liability but offer £750.

Notwithstanding the findings of the IPCC, it was clear that West Midlands Police were not going to properly compensate Chris without a fight.

On Chris’s behalf, I issued Court proceedings.  Although West Midlands Police then belatedly admitted liability they continued to fail to recognise the serious nature of their officer’s misconduct and the implications this would have as regards the likely award of damages that a Court would make.  After a succession of offers and only a short while before the final hearing, West Midlands Police offered and Chris accepted a final settlement of £17,500 plus costs.

So justice was done; but not before the police had – as is their habitual practice – closed ranks against Chris and tried to deny his legitimate complaint. Where would we have been without the honesty of Officer X, who did the right thing and spoke out against wrongdoing by one of his colleagues? Frankly, in my experience, too few officers are willing to speak up or criticise their fellow officers in these situations. The eventual settlement reached with the police was over 20 times as much as their initial offer. There was absolutely no need for the Police to drag this matter out as long as they did, but it seems that the general police mentality when faced with a case like Chris’s is that in these situations, any fan who gets injured ‘must’ by definition have been doing something wrong. Given this aggressive ‘us versus them’ approach to the policing of football fans, cases of police brutality subsequently compounded by a prejudiced refusal to admit any fault on their part, are sadly all too common.

 

Why Paul Ponting’s Strip Search Was Wrong

Photo of Iain Gould solicitor, explains strip search law referring to the case of his client Paul Ponting.
Iain Gould solicitor, explains strip search law referring to the case of his client Paul Ponting.

By Iain Gould, Solicitor

You may have read in today’s papers (Daily Mail, Liverpool Echo) that my client, Paul Ponting, is suing Lancashire Police for compensation following his arrest and strip search in June 2014.

To strip an individual of their clothes following their arrest is one of the greatest invasions of privacy and bodily integrity that the State can perpetrate.

Here I explain the law about strip searches and how it affects Mr Ponting’s case.

(N.B. Paul Ponting has given his consent to publicity and agreed to me using details of his case here, which are based on his version of events.)

Arrest and Strip Search

At the time of his arrest Paul Ponting was a successful 42-year-old businessman and father-of-two. He owns computer shops and lives in Ormskirk, West Lancashire.

In 2014 Paul told Lancashire Police that an ex-employee was harassing him via an online hate campaign. On the evening of 18 June 2014, two uniformed police officers visited Paul and his wife at home to tell them that the police would not be taking action against the ex-employee. Mr Ponting was upset about this and an argument developed. The police arrested him for a minor public order offence and an alleged (but in any event minor) assault against one of the officers.

Paul was taken to Skelmersdale Police Station. He was frightened and worried as he had never been arrested before and was unfamiliar with the process. What happened next is in dispute. Paul’s behaviour is variously described in the Custody Record (which is completed by the Custody Sergeant, not the Claimant) as “erratic” and “violent”. (The available CCTV footage would suggest otherwise.)

The Custody Record also says that Mr Ponting refused to engage in the Risk Assessment Process (whereby the arrested person provides details about their general health). As a result, the Custody Sergeant wrote that he should be stripped of his clothes. The Sergeant justified this decision by stating that it was not possible to determine if Paul had anything on him likely to cause harm to self or others.

Paul was taken to a police cell. There he was violently manhandled, assaulted, and forcibly stripped naked by FOUR police officers. You can see photographs and CCTV footage of his painful and degrading experience here.

Paul began to experience chest pains while in police custody. He was rushed to hospital where his injuries were recorded as “multiple bruises and superficial lacerations to the limbs and a swollen left lateral hand”. He was later bailed to return to the police station where he was eventually charged.

Mr Ponting was prosecuted all the way to trial. Thankfully he was acquitted of all charges at Ormskirk Magistrates Court in November 2014.

Paul’s experience at the police station was humiliating, degrading, and undignified. He contacted me for advice as I specialise in civil actions against the police. I am now helping him bring a compensation claim against Lancashire Police for wrongful arrest, false imprisonment, assault, and malicious prosecution.

The Law in Strip Search Cases

Searching detainees is understandably important: it protects the safety of arrested persons; reduces the risk of harm to police staff; and allows material to be seized that may be subject to legal proceedings. But in my experience, all too often an arrested person’s dignity is ignored and a strip search effected on the flimsiest of excuses.

The rules about searches are rightly strict. The courts say that careful consideration should be given by custody staff before authorisation and execution of a strip search. (See Patricia Zelda Davies (by her litigation friend Zelda Davies v. Chief Constable of Merseyside Police and Just for Kids Law and Children’s Rights Alliance for England (Interveners), Court of Appeal [2015] EWCA Civ 11.)

And, as well as this clear guidance provided by the Court of Appeal, the police must consider:

All this means that:

1.      The custody officer should decide the extent of the search and the subsequent retention of any article that the detainee has with them. Officers must document the decision-making process on the Custody Record and include:

  • the reason for the search
  • those present during the search
  • those conducting the search and,
  • a record of any items found or seized.

2.      The custody officer should explain to the arrested person why it is necessary to carry out the search. Custody officers may seize clothing on the grounds that they believe the arrested person may use them to harm themselves. However, custody officers should, when deciding to remove clothing, balance the need to protect the right to life with the importance of ensuring that an arrested person’s dignity is respected.

3.      The search must be conducted with proper regard to the sensitivity and vulnerability of the arrested person and every reasonable effort must be made to secure the arrested person’s cooperation. Only if they do not consent may the officer(s) use reasonable force to carry out the search/removal of clothes (Section 117 of PACE).

Police Failures in Paul Ponting’s Case

Paul Ponting was rapidly taken from the police van on arrival at the police station, through to the Custody Desk, and then into a cell where he was forcibly stripped naked. This suggests that little or no consideration was given to Paul’s rights, or his dignity.

And if Lancashire Police suggest that its officers were concerned for Paul’s wellbeing whilst in custody, I will argue that more consideration should have been given to alternative and less invasive measures. The College of Policing guidance states:

“Officers should not automatically see strip-searching individuals for their own protection as the best way to prevent them harming themselves.”

On the facts, the police’s conduct was unjustified. I do not understand why a normal “pat down” search of Paul’s person, without removing his clothes, could not have satisfied the officers that he was not carrying anything of potential danger. Furthermore, belts and socks, which could be used to self-harm, can be removed without requiring an individual to be stripped naked. There was simply no need for Lancashire Police officers to strip Mr Ponting of his clothes and his dignity. And to then prosecute him all the way to trial on bogus charges simply added insult to painful injury.

Mr Ponting is right to pursue his case, despite recent government efforts to make it harder for claimants to seek justice and hold police officers to account. By taking action against Lancashire Police he is shining a light on their poor practices, and, hopefully, encouraging the Force to change its approach to strip searches.

Contact me for help with your actions against the police via the online form below.

Is Police Taser Policy Working?

By Iain Gould, Solicitor

The relentless rise in the police use of Taser “stun guns” is confirmed by the latest Home Office figures. The statistics show that police in England and Wales drew their Tasers more than 10,300 times last year, an increase of 55% since 2010.

These statistics are, to a large extent, understandable, as more and more front-line officers are equipped with the devices. This trend seems set to continue as, if it were up to the Police Federation, all front-line police officers would have the opportunity to carry Tasers (confirmed in a unanimous vote on 09 February 2015).

It’s easy to see why the police are so keen on them. The Association of Chief Police Officers like that “Taser provides an additional option to resolve situations, including the threat of violence, which can come from any section of the public.” Senior officers tell us that “The Taser is low-level officer protection equipment that is both safer and more appropriate to be used in many circumstances than a baton or firearm.” (Humberside Police Chief Superintendent Steve Graham). And, According to the Association of Chief Police Officers, “The normal reaction to the discharge of a Taser is pain, coupled with loss of some voluntary muscle control… Recovery from these effects of the Taser should be almost instantaneous, once the discharge is complete.”

So, according to the police, it’s all good. Carry on. But really, should we be concerned?

Taser Risks Exposed

Notwithstanding police claims that Tasers are low-level and safe, police policy seems to reflect the reality that the use of Taser is in fact a relatively high level use of force (IPCC review of Taser complaints and incidents 2004-2013) and that arming all officers with Tasers is effecting “compliance by pain” rather than “policing by consent” (Amnesty International press release 24 November 2008).

For this reason, Steve White, Chair of the Police Federation, said that “Any officer authorised to carry Taser must be fully trained to do so and there are strict procedures and safeguards in place to ensure all officers are fully accountable.”

But is this just hollow propaganda? Are officers fully trained? Are procedures followed? Are police officers held to account?

Consider the ongoing case of my client Rob Sutherland (name changed for privacy reasons).

Police Taser a Peacemaker

On 21 June 2013, Mr Sutherland went to his son’s ex-girlfriend’s flat to mediate in a disagreement over access to their baby son.

Rob arrived at the same time as two police officers. His son’s ex-girlfriend’s mother allowed the officers entry but blocked Mr Sutherland and then sought to slam the door in his face. Rob accepts that he held his ground and may have gripped the door frame. At this, one officer pushed Mr Sutherland away and said, “go away”.

Rob accused the officer of assault and asked for his badge number. The officer replied, “I am the police” and shut the door.

Mr Sutherland felt that the officer’s conduct was unacceptable and thought about lodging a complaint. He approached the officers’ vehicle to look inside for details of the officer’s identity. He accepts that he may have accidentally caught the wing mirror of the car with his hip but he did not deliberately kick or punch it.

Rob returned home. A short while later, the same officers arrived.

One of them advised Mr Sutherland that he was under arrest for public disorder. Rob asked what he had done wrong. The policeman sought to handcuff Mr Sutherland who accepts that he resisted by stiffening and raising his arms in the air. There was a minor struggle for no more than 10 or 15 seconds.

Suddenly, Rob heard a pop, which he described as “like a firecracker” going off. He felt intense but short-lived pain. The right side of his body went into an involuntary spasm and convulsion. His body “felt like jelly”. He momentarily lost his balance but was caught by the officers who grabbed Mr Sutherland’s arms and handcuffed him to the rear.

Rob was put in the back of the officers’ patrol car. The handcuffs had been applied extremely tightly and he asked one of the officers if the handcuffs could be loosened. They refused.

The police drove him to the local Police Station where the handcuffs were finally removed.

At this stage, Mr Sutherland felt terrible. His chest hurt from where the barbs of the Taser had pierced his skin. The ends of his fingers were still trembling. He felt generally unwell. His wrists were sore and painful.

Despite his own situation, as Rob is a full-time carer for his mother, he thought only of her wellbeing. His priority was to get out of the police station as quickly as possible.

He spoke to a duty solicitor before his police interview. He was advised that he had been arrested for both a public order offence and resisting arrest.

The police told Mr Sutherland’s solicitor that if his client accepted a fixed penalty notice for the public order offence, no further action would be taken in relation to the allegation of resisting arrest. The solicitor said that accepting the notice and payment of the fine would not be an admission of guilt. Conscious of the proposed deal, when interviewed, he deliberately underplayed the officer’s unlawful conduct and excessive use of force.

A short time later, Rob was brought out of his cell and issued with a fixed penalty notice which he subsequently accepted and paid.

Police Complaint and Claim

Mr Sutherland was angry about the incident in which, he felt, the police deliberately injured and humiliated him. He lodged a formal complaint. In response, the police offered to resolve his complaints by local resolution.

Rob then researched instructing a solicitor to help. As I specialise in civil actions against the police he asked me to handle his complaint and bring a compensation claim for both wrongful arrest and assault.

After a lengthy investigation process involving no less than two appeals to the Independent Police Complaints Commission (“IPCC”), his local police force have finally admitted that the use of Taser and handcuffs was inappropriate.

This only came about after the IPCC’s extremely critical comments of both PC B (the officer who Tasered Mr Sutherland) and his police force.

In a review of Rob’s appeal, the IPCC caseworker said, 

“I would question whether PC B gave enough emphasis to the first element of the National Decision Model, which is to communicate. He does not appear to have made any attempt to communicate with Mr Sutherland beyond challenging him about hitting the police car then, when Mr Sutherland argued back, telling him he was under arrest. The matter then quickly escalated to the use of force. This is precisely why the National Decision Model places so much emphasis on good communication – in order to diffuse difficult situations, so that they use of force will not become necessary.”

Police officers are entitled to use force to make an arrest provided that it is reasonable and proportionate to the threats presented. But, the caseworker continued, “Mr Sutherland was not waving a weapon and he had not assaulted anyone. He was in his own house and not a danger to the public. He had not been violent, or threatened violence, towards the officers”.

In conclusion, the caseworker reported that “the situation should not have been allowed to develop to the point where the use of Taser became necessary. More effort should have been made, in line with the National Decision Model, to engage Mr Sutherland in dialogue about why his behaviour was not acceptable” and “in situations where the police are confronted with members of the public who are adamant that they have done no wrong, often the best approach to adopt is one of communication and dialogue. A skilled officer will make every attempt to defuse a potentially volatile situation, rather than, in this case, a quick escalation to the use of force.”

Irrespective of the police officer’s rash behaviour, what was even more concerning was his attitude to the use of Taser and his perception of its seriousness. In his interview, the officer said:

“… It’s worth raising that people’s perceptions of use of Taser is that it’s quite serious and it’s quite high up on the scale of things, and in actuality it isn’t, it’s quite low down, it comes in at the same level as just putting your hands on somebody.“ (my emphasis in bold)

He went on:

“….If you have to put hands on someone and you’re struggling with them it makes them angry and human nature is makes you angry as well, and Taser just eliminates that completely because there is no reason to get worked up about anything, it’s just an instant thing and straightaway it stops somebody and generally their response is quite positive, I’ve found… the control is immediate, there is no reason for anybody to get injured, and the person will then generally, you know, have a chat with you afterwards and sort of chat to you about the Taser, and you didn’t like that much and you can be friends about it.” (again, my emphasis in bold)

Quite clearly, just putting your hands on somebody is not the same as inserting barbs into their skin and discharging a 50,000 voltage electrical current through their body, causing extreme pain and loss of muscle control. The officer’s apparent naiveté about the physical and mental impact of being Tasered calls into question his training and fitness to carry a weapon.

Inadequate Taser Training

The officer’s comments led to the IPCC caseworker making a somewhat exceptional recommendation under paragraph 28A of Schedule 3 to the Police Reform Act 2002. The IPCC demanded that the police force concerned should review the training provided to officers to ensure that:

  1. The training conforms with national guidance about when, and for what purpose, a warning is given about Taser discharge, and
  2. Sufficient weight is given in training to the potentially harmful physical and psychological effects of discharging a Taser, and the benefits of using communication to defuse a difficult situation.

In addition, the caseworker criticised the police force’s handling of Mr Sutherland’s complaint. The caseworker said that, “it should never have been treated as a matter suitable for local resolution given that the complaint, if proven, could amount to gross misconduct. As such, it ought to have been subject to a full investigation from the start, with the IPCC, not the force, being the relevant appeal body. Moreover, the matter should have been referred to the IPCC at the outset in line with the requirement to refer all cases where Taser has been used and a complaint is made”. 

Last Resort

Mr Sutherland was traumatised by not only his wrongful arrest but also the excessive and disproportionate use of force against him.  He is currently undergoing counselling and in due course I will present full details of his physical and mental injuries and hopefully negotiate a settlement.

In view of inappropriate Taser use such as this incident, it is right that public concern about the increasingly routine deployment of police Taser should remain high. I accept that there are legitimate reasons for using Taser weapons in policing. Used correctly, it can be a valuable tool in assisting police officers to manage difficult and challenging situations.

But it is essential that officers are taught and understand that the device should be a last resort and not as, in Rob’s case, a default choice where other tactical options, including communication could be effective. And where police officers fall short, their forces should to act quickly to address officer failures and accept responsibility. Only then will the public have confidence in the police’s policy on the use of Tasers.

Contact me for help with your police Taser assault claim using the online form below.

Why “Driving While Black” Might Get Easier

 

By Iain Gould, Solicitor

By tackling the fictitious criminal offence of “driving while black” Home Secretary Theresa May might be about to make a real difference in many people’s lives.

“Driving while black” is where police officers stop, question, and even search black and minority ethnic drivers who have committed no crime, based on the excuse of a road traffic offence.

The Home Secretary has ordered that the “best use of stop and search” code be extended to vehicle stops under the Road Traffic Act. The new rules will require police officers to record the driver’s ethnicity, the reason for the stop and the outcome.

She intends to make the changes because “One of the things I am very clear about is that I didn’t take action on stop-and-search to see the police using other things in a way that could be questioned.”

The rule change is intended to improve transparency and tackle the disproportionate targeting of black and minority ethnic drivers. It is hoped that such a move will restore relations between the police and public.

This is why we should be cautiously optimistic.

Stop and Search Circumvented

In 2014 police forces were encouraged to voluntarily sign up to the “best use of stop and search” scheme, which was intended to limit blanket Section 60 of the Criminal Justice and Public Order Act (1994) stops, keep better records, and publish them online.

At first glance, it appears to be working. The Home Office reported, “In the year ending March 2015, there were 541,000 stops and searches conducted by police in England and Wales, a fall of 40% compared with the previous year.”

But, as Mrs May pointed out, police forces are now using “other things”, including the Road Traffic Act.

Under section 163 of the Road Traffic Act 1988, a person driving a “mechanically propelled vehicle” or riding a cycle on a road must stop on being required to do so by a constable in uniform or a traffic officer.

Failure to stop is a criminal offence.

The Power to stop in section 163 is complimented by the powers in sections 164 and 165.

These provisions require the driver (and supervisor, if the driver is on a provisional licence) to produce certain documentation, such as a driving licence, certificate of insurance and MOT test certificate of roadworthiness where an officer “has reasonable cause to believe to have committed an offence in relation to the use on a road of a motor vehicle”.

The police can also demand names, addresses, and dates of birth of the driver, owner (if different), and supervisor of the driver (if on a provisional licence).

Again, failing to provide this information is a criminal offence.

These sections are so wide that the Road Traffic Act is open to abuse, allowing miscreant police officers to circumvent the stop and search rules which require a “reasonable suspicion” that the driver is carrying an unauthorised weapon or drugs.

Manipulating the law in this way can have serious consequences, as my client Darren Edmonds (name changed for privacy purposes) will confirm.

Stopped for “Driving While Black”

My client, Darren Edmonds, is a disabled black man from Dagenham who was the victim of a dubious Section 163 Road Traffic Act stop in April 2012.

On the day in question, he was driving his Vauxhall Astra to Dagenham Sunday market. He was with his friend and cousin, who are also black males.

Mr Edmonds maintains that he was driving within the 30mph speed limit along Wood Lane, when at about 7:50a.m., they passed a marked police car coming the other way. He made eye contact with one of the officers. As the police car passed, the driver put on his sirens and lights, turned and followed Darren’s car.

(We later found out why the police stopped Mr Edmonds. One officer recorded that the Astra “drove past us seemingly at high-speed”. In subsequent court papers, it was suggested that the officer considered a high-speed as any speed over the set speed limit in that area. So, perhaps 31 mph?)

Darren immediately pulled over, got out and spoke to one of the officers. The officer asked for Mr Edmondss full name and date of birth and returned to the police car so as to check his details on the Police National Computer. The officer’s colleague came out and asked for the same information. Again, Mr Edmonds gave his details.

Both officers told Darren that this was just a routine check. Accordingly, he was shocked when he felt someone grabbing him from behind. Darren turned to see the first officer trying to handcuff him and asked “Why are you arresting me? I haven’t done anything wrong.”

Disabled Man Assaulted

Mr Edmonds can only walk short distances with a stick and is otherwise wheel-chair bound due to avascular necrosis, a chronic degenerative disease which particularly affects his hips and legs. The disease cuts off blood supply to bones, eventually leading to their fracture and collapse. It can be accelerated by physical trauma. Darren is registered disabled because he is in constant pain similar to severe arthritis.

While the first officer attempted to handcuff him, Mr Edmonds struggled to stay on his feet. The second officer came over and performed a “leg sweep”, causing Darren to fall to the ground. The first officer told Mr Edmonds to stop resisting, that there was a warrant out for his arrest, and that he was now also under arrest for assaulting a police officer.

Darren felt himself being handcuffed to the rear.  He then felt pressure being exerted upon him by the officers through what felt like a knee in his back and a hand on the back of his head forcing him down. He had difficulty breathing, told the police repeatedly that he was disabled and begged to be let go.  Other officers arrived.

A number of officers took hold of Mr Edmonds’s legs, brought them up behind his back, and crossed them over. Darren says he nearly passed out with the pain.

By this time there was an audience of Mr Edmonds’s companions, 6-10 male and female police officers, and concerned onlookers.

Nudity Exposed

Darren said that during the struggle his jeans and underpants came down, exposing his buttocks and genitals.

As officers sought to escort him to a police van, they pulled his underpants up but his jeans remained around his ankles.  He was then forced to walk with his trousers around his ankles but was unable to keep up with the pace of the officers and so was effectively dragged to the van to be taken to Freshwharf Police Station.

Mr Edomnds’ nightmare did not end there.

At the station Darrendenied that he was wanted or that he had assaulted any officer. The Custody Sergeant advised Mr Edmonds that he would be kept in overnight, taken to court in the morning, and that anything he wanted to say could be said in interview later. Darren was then asked to provide the Custody Sergeant with his name, but he initially refused on the basis that he had already given it to the two officers who were standing with him.

Rather than simply asking his colleagues, the Custody Sergeant threatened Mr Edmonds that he would be “Tasered” if he did not co-operate.

Darren was then put in a cell and eventually interviewed without a solicitor.

After 6 hours in custody, Mr Edmonds was charged with assaulting both police officers causing actual bodily harm and released on bail.

By this stage, it was accepted that the outstanding warrant did not relate to Mr Edmonds. In fact, it was for a white man with the same details.

Failed Prosecution

Mr Edmonds pleaded not guilty and attended numerous court hearings before trial at Barkingside Magistrates’ Court.  At the trial on 30 July 2012 both officers gave evidence to support alleged false statements made in their notebooks about the incident.

At the end of the prosecution case Darren’s criminal defence solicitor successfully had the proceedings struck out on the basis that his client had “no case to answer”.

Following a search on the internet, Mr Edmonds contacted me given that I specialise in civil actions against the police, to investigate a compensation claim.

The officers claimed that they stopped my client for speeding, but Mr Edmonds was sure he was driving within the speed limit. My client is adamant that his only crime was “driving whilst black”.

Having stopped my client, the officers then aggravated matter by failing to carry out proper checks.

My client provided his full details immediately upon request. An officer then completed a name check via his police radio.  He was advised that a person with my client’s name was wanted for failing to attend court for minor traffic offences.

But rather than complete any further checks (which would have revealed that the suspect was a different skin colour) my client’s case was that the first officer approached him from the rear and took hold of his left arm.  My client instinctively reacted by turning and attempting to push away the person who had taken hold of him. The officers then sought to handcuff my client and a struggle ensued.

I pursued the case on the basis that, it is established law that if a police officer restrains a person but does not at that time arrest (or intend to arrest) him, the officer commits an assault even if an arrest would have been justified.

As such when the officer took hold of my client, he assaulted him and Mr Edmonds was well within his rights to resist.

Unfortunately, my client’s reaction then triggered an alleged overzealous and disproportionate response in that he was aggressively taken to the ground, unlawfully arrested and then prosecuted for an offence which if found guilty could have landed him in jail (the maximum sentence is 5 years).

Compensation Paid

Darren needed hospital treatment for the injuries sustained in the police assault, and a psychiatrist diagnosed him as suffering with post-traumatic stress disorder for which he underwent a course of counselling.

Having intimated a claim, the Metropolitan Police denied liability. I was obliged to issue court proceedings on behalf of my client. Notwithstanding the denial and after numerous offers, I was finally able to achieve an out-of-court settlement of £22,500 plus legal costs.

Caution

In Mr Edmonds’ case the police officers involved abused an existing law (the Road Traffic Act) to fulfil their aim (of effecting a stop and search).

This approach, while effective, has not gone unnoticed, leading to Theresa May’s announcement and a 2015 report by Her Majesty’s Inspectorate of Constabulary. The report’s authors said “it is certainly the case that many people assume that being stopped by a police officer when they are in their car has the same status as being stopped and searched (in the street) when, in fact, the level of scrutiny and accountability that the officer is under is significantly less than is the case for stop and search.”

HMIC added that it had “serious concerns about there being no requirement to record these stops” and “forces cannot demonstrate to us that they are using these powers effectively and fairly”.

I hope that the proposed reforms to this abuse of the Road Traffic Act will have a similar effect to the “best use of stop and search” code, which has led to dramatic reductions in the use of that tactic.

But experience shows that the police can be quite creative in manipulating the law. When they are limited in using one approach (stop and search) they quickly find another (abuse of the Road Traffic Act).

As ever, Government, local communities, and lawyers must remain cautious.

Contact me for help with your civil actions against the police using the online form below.

What You Need to Know About the Deletion of Records from National Police Systems

By Iain Gould, solicitor.

In my experience as a solicitor who specialises in actions against the police, when an individual has been wrongly arrested, their priority is not necessarily financial compensation. Instead, they often seek:

  • an acceptance of wrongdoing;
  • an apology; and
  • deletion of records and data from national police systems obtained as a result of the arrest.

Data held in police systems can include the record of arrest, fingerprints, DNA sample and custody photograph.

This issue is particularly important for individuals who have no prior arrest history and who consider such retention of personal records with grave suspicion.

How Records Are Deleted from Police Systems

In certain cases subject to the Police and Criminal Evidence Act (1984) the individual’s DNA profile and fingerprint record should be automatically deleted by reason of the Protection of Freedoms Act 2012 (the “PoFA”). See below: 

1 Destruction of fingerprints and DNA profiles 

After section 63C of the Police and Criminal Evidence Act 1984 insert—

“63DDestruction of fingerprints and DNA profiles 

(1)This section applies to— 

(a)fingerprints— 

(i)taken from a person under any power conferred by this Part of this Act, or

 (ii)taken by the police, with the consent of the person from whom they were taken, in connection with the investigation of an offence by the police, and

 (b)a DNA profile derived from a DNA sample taken as mentioned in paragraph (a)(i) or (ii).

 (2)Fingerprints and DNA profiles to which this section applies (“section 63D material”) must be destroyed if it appears to the responsible chief officer of police that—

 (a)the taking of the fingerprint or, in the case of a DNA profile, the taking of the sample from which the DNA profile was derived, was unlawful, or

 (b)the fingerprint was taken, or, in the case of a DNA profile, was derived from a sample taken, from a person in connection with that person’s arrest and the arrest was unlawful or based on mistaken identity.

 (3)In any other case, section 63D material must be destroyed unless it is retained under any power conferred by sections 63E to 63O (including those sections as applied by section 63P).

 (4)Section 63D material which ceases to be retained under a power mentioned in subsection (3) may continue to be retained under any other such power which applies to it.

 (5)Nothing in this section prevents a speculative search, in relation to section 63D material, from being carried out within such time as may reasonably be required for the search if the responsible chief officer of police considers the search to be desirable.”

It is important to note the exceptions at points (3)-(5), and be aware that the PoFA does not deal with custody photographs (stored on the Custody Suite Imaging System, “CSIS”) and the associated police national computer (“PNC”) record and/or entry.

As a result, unless an application is made under the Record Deletion Process (“RDP”), even if DNA and fingerprints are destroyed, the PNC records and custody photograph will be retained by the police until the subject is deemed to have reached 100 years of age.

How to Seek Deletion of Records from National Police Systems

Irrespective of any complaint or civil claim pursued, the individual can apply for the destruction of all of his/ her personal data under the Record Deletion Process. Click on this link for guidance and the application form issued by the Association of Chief Police Officers Criminal Records Office (“ACRO”).

Applications can be submitted to ACRO or the individual police force concerned. The applicant must state the grounds for having their records deleted and provide proof of identity/current address. The guidance suggests that the evidence and grounds for deleting records from national police systems will be then be examined by a chief officer. If agreed, the expectation is that any records held will be deleted.

There are no set criteria for the deletion of records. Chief officers must exercise professional judgement based on the information available.

The following are some examples of circumstances in which deletion will be considered:

  • Malicious/false allegation. When a case against an individual has been withdrawn at any stage, and there is corroborative evidence that the case was based on a malicious or false allegation.
  • Proven alibi. Where there is corroborative evidence that the individual has a proven alibi and as a result she/he is eliminated from the enquiry after being arrested.
  • Incorrect disposal. Where disposal options are found to have been administered incorrectly, and under the correct disposal there would be no power to retain the DNA profile. In such circumstances, consideration should be given to deleting records.
  • Suspect status not clear at the time of arrest. Where an individual is arrested at the outset of enquiry, the distinction between the offender, victim and witness is not clear, and the individual is subsequently eliminated as a suspect.
  • Judicial recommendation. If, in the course of court proceedings, a magistrate or judge makes a recommendation that an individual’s records should be deleted.
  • No crime. Where it is established that a recordable crime has not been committed. For example, a sudden death when individual is arrested at the scene but after post-mortem it is determined that the deceased person died of natural causes and not homicide.

Metropolitan Police Record Deletion Process

For deletion of records held by the country’s largest force, the Metropolitan Police (“the Met”), applications must be submitted to the Early Deletion Unit (“EDU”).

It is not a straightforward process, as my client, Kacper Maslowski (name changed for privacy purposes), would confirm.

Mr Maslowski was arrested on 31 July 2012.

A month earlier an employee of Metropolitan Police was driving his car when he saw two individuals arguing in a car upfront.

The female passenger allegedly slapped the male driver (Kacper) and in response he allegedly punched her in the face.

At the next set of traffic lights, the Met employee parked in front of the car and got out to speak to the couple. He allegedly noted that the female, Mr Maslowski’s girlfriend, had injuries to her face and obtained their details.

Several days later the Met employee submitted a report about the incident.

Given the priority that domestic abuse is given, the case was investigated.

Unfortunately, there was a significant delay because:

  1. the police failed to get to grips with the location of the incident; and
  1. there were a large number of people at the Met passing the matter around.

During the investigation, Kacper’s girlfriend was contacted on a number of occasions.

She denied that she had been assaulted and further, refused to lodge a formal complaint. Notwithstanding this, a decision was made to invite Mr Maslowski to attend a police station for voluntary interview a month after the incident.

Upon arrival, despite attending as a volunteer, Kacper was summarily arrested.

He was detained in custody for 3 1/2 hours during which time he was interviewed.

Mr Maslowski was then bailed to attend the police station on 4 September 2012 where he was again detained in custody for a further 4 hours during which time he was interviewed again.

Ultimately, he was charged and bailed to attend court.

Kacper pleaded not guilty and eventually the Crown Prosecution Service discontinued proceedings on the basis of insufficient evidence.

Mr Maslowski searched the internet for guidance and, given my track record of success in this area, contacted me for legal help.

My client’s priority, as a man of exemplary character, was the destruction of all personal data held. He also sought compensation for his false arrest, detention, and the stress of court proceedings.

Kacper could have lodged an Application to the EDU shortly after the Crown Prosecution Service decided to discontinue proceedings. On my advice, he delayed, because, I advised, a complaint about the police’s conduct should come first.

Complaint Against the Metropolitan Police

After discussing the case, I explained to Mr Maslowski that he did not have grounds to complain with the Met’s decision to investigate.

But what was objectionable was:

  • the delay; and
  • inviting Kacper to attend a police station for a voluntary interview followed by an immediate decision to arrest at that time, which was said to be necessary so as “to allow a prompt and effective investigation.”

I submitted a complaint against the Metropolitan Police on Mr Maslowski’s behalf and agreed to act in his civil action against the police for compensation.

As is often the case, the complaint was dismissed by the Metropolitan Police.

On my client’s behalf I appealed to the Independent Police Complaints Commission (“IPCC”).

Following review, Kacper’s complaint was upheld by the IPCC.

This mattered because the legality of arrest was initially considered by the Met’s “Professional Standards Champion”. As they initially dismissed my client’s complaint I am sure that the application for deletion of records would also have been rejected.

Civil Claim Supporting Deletion of Records

Despite the IPCC’s positive findings its decision was not binding upon the police.

As a result, when I submitted Mr Maslowski’s compensation claim to the police citing wrongful arrest, the Metropolitan Police denied liability.

In the circumstances, I had no alternative but to issue court proceedings to seek justice for my client.

Although liability was disputed, solicitors on behalf of the Met offered to settle his claim out of court. This confirmed my view that Kacper’s claim was entirely justified, despite the Met’s formal denial.

After extensive negotiations, Mr Maslowski settled his compensation claim for £6500 plus legal costs.

Despite this, in previous negotiations with the Met, it has been made clear that destruction of personal data has no relevance to any civil claim and that a separate application must be lodged to the EDU.

I used the supportive decision of the IPCC and offer of settlement to persuade the chief officer to agree to the deletion of my client’s records.

Delay in Deletion of Records

You would think that it would be a relatively quick and easy task to delete records. After all, they were easy enough to create when Mr Maslowski was arrested. Not so.

My application to delete his records was acknowledged in mid-January 2015. As is standard, the (laughably misnamed) Early Deletion Unit advised that it would take “up to 12 months” for a decision about deletion to be reached.

Notwithstanding several reminders, no decision was made by mid-January 2016. The EDU advised that “there is no statutory time limit for processing these requests and they may take up to 12 months or longer, due to the volume of similar applications currently being dealt with by the MPS”.

See redacted letter below:

The Metropolitan Police's Early Deletion Unit say that deletion of records requests can take up to 12 months or longer.
Redacted letter from the Metropolitan Police’s Early Deletion Unit confirming that requests may take up to 12 months or longer.

You may wonder how many requests are processed at the EDU. In response to a recent Freedom of Information Act request, the Metropolitan Police said that they were unable to provide this information because, remarkably, “This information is not recorded in a searchable electronic format”.

And yet, in another Freedom of Information Act request, the Met confirmed that:

“As of the 18th September there were 164 requests awaiting decision by the
Commander. These are regularly reviewed by the Commander and dealt with on
a priority basis. The outstanding requests awaiting decision are not
attributable to any staffing issues.”

In any event, I am pleased to confirm that the EDU did eventually process Mr Maslowski’s application. In mid-March 2016, the EDU ironically advised that the case was “eligible for early deletion”.

And you might think that now that a decision has been made, the offensive data would be deleted forthwith. But no, the EDU advise that “the deletion process may take several months to complete”.

See redacted letter below:

The Metropolitan Police wrote this letter to solicitor Iain Gould about deletion of records from their police systems.
Letter from the Early Deletion Unit confirming that Mr M’s case was “eligible for early deletion”.

Despite this, my client is extremely pleased. His arrest has been recognised by an independent body as unlawful, he has received financial compensation for his unlawful detention, but most importantly, ALL personal data obtained as a result of his arrest has been (or will be) destroyed.

His case proves that deletion of records from national police systems is possible, but it takes perseverance and knowledge of the system.

Contact me for help with your actions against the police using the online form below.

How Police Abuse Powers for Sexual Gain

Photo of Iain Gould, solicitor, who discusses police abuse.
Iain Gould, solicitor, discusses how police abuse their powers for sexual gain here.

By Iain Gould, Solicitor

I recently contributed to an investigation lead by the BBC Radio 5Live team about police abuse of powers for sexual gain.

You can hear the first part of the programme here:

Part 2 will be broadcast on 5Live on Sunday 3 April at 11a.m.

During my career as a solicitor who specialises in Actions Against the Police, I have acted on behalf of several victims of sexual exploitation by police officers.

Police officers have wide powers, status, and influence. Their role is to protect and serve the public. Each case of police abuse represents a serious betrayal of the trust and confidence that individuals, and the wider public, should have in them.

In 2012 the Independent Police Complaints Commission (“IPCC”) reported on this issue. (The Abuse of Police Powers to Perpetrate Sexual Violence). The report explained that “It is not possible to know precisely how many people have been victims of police officers or staff abusing their powers. There is no evidence to suggest it is commonplace, but nor can we be confident that all such cases are reported.”

It gave six examples of police abuse of power for sexual gain and concluded that forces were not doing enough to stop this type of corruption.

The authors urged “senior leaders in the police service to be alert and determined to root out this kind of abuse of power,” and said “Police forces should maximise every opportunity to prevent, or at least reduce, the likelihood of police officers and staff from engaging in the behaviours described within this report.”

But are they?

If the experience of my client “Clare” is anything to go by, I doubt it.

Police Misconduct

PC Jordan Powell joined West Midlands Police in 2004.

In September 2007, PC Powell was sent to investigate a report of a house burglary. The woman who made the report (not my client Clare) had been having domestic issues with her ex-partner. He was the suspected burglar.

Powell began texting flirtatious messages to the woman and a relationship developed culminating in PC Powell visiting her home whilst on duty and having consensual sexual intercourse.

The ex-partner found out and made a complaint. In 2008, PC Powell received a written warning for misconduct.

Despite this, it would appear that little was done to monitor and supervise his activities to prevent further abuses of power, in particular with Clare.

Continued Police Abuse

Clare was the victim of domestic abuse by her ex-husband. He was arrested on a number of occasions.

In 2010, Clare reported a burglary to the police and accused her ex-husband of stealing some of her jewellery. The case was handled by PC Powell and went to court, where Clare’s ex-husband was successfully prosecuted.

In May 2012, Clare reported further domestic abuse by her ex-husband and obtained a non-molestation order. The order could not be served on him so she attended her local police station for advice. She was again dealt with by PC Powell, alone.

Subsequently PC Powell texted Clare on his private mobile phone.

Some text messages were exchanged and in one Clare thanked PC Powell for his help. PC Powell responded by asking Clare to keep his number and to call or text if she needed help. He ended his text with a ‘X’ which Clare took to mean a kiss. She wasn’t comfortable with this.

Soon afterwards, Clare’s ex-husband breached the non-molestation order. Clare texted PC Powell to report the breach. There were further texts between them and one of the texts again contained an ‘X’ from the police officer.

The following day Clare sent PC Powell another text to report a further breach of the order by her ex-husband. PC Powell texted back saying that he would meet her at home. He ended the text with an ‘X’.

Again, Clare wasn’t comfortable with the ‘X’ in the text message but was not confident enough to challenge it because Powell was a police officer. PC Powell went to Clare’s home with another officer and took a statement.

Clare and Powell exchanged further texts. She admits that she was flattered by the attention.

Over the next few days, the exchanged text messages became more suggestive. It wasn’t long before PC Powell started visiting Clare in the middle of the night while he was on duty to have sex with her.

The relationship between PC Powell and Clare ended in July 2012. Clare felt PC Powell wanted to control the relationship and was visiting just for sex.

Honey Trap

PC Powell was caught when his own Force became suspicious and set up a “honey trap” operation using an undercover female officer.

The officer pretended to be a victim of domestic violence and rang police in June 2012. PC Powell was sent to her home, which was fitted with covert recording equipment, to investigate the complaint. Within a couple of hours of leaving, PC Powell had sent the “victim” flirtatious text messages from his personal mobile phone.

As part of the investigation, officers from West Mercia Police’s Professional Standards Department visited Clare who was brave enough to provide a full account as to what had happened.

Shortly afterwards, PC Powell was arrested and prosecuted for misconduct in public office. At trial the court heard how, on the day before his arrest, Powell sent text messages to three women asking for sex. He was jailed for 15 months after pleading guilty to three charges of misconduct in public office.

West Mercia Police dismissed Powell at a special case hearing chaired by the Chief Constable. In a statement issued after the dismissal hearing quoted by the BBC, the Deputy Chief Constable acknowledged that “Incidents of this nature have the potential to seriously damage the trust placed in us by those communities.”

Sickening Abuse

PC Powell clearly abused his position for sexual gain. He targeted vulnerable women. He then groomed them with compliments and flattery. Numerous sexual relationships developed.

What could his own force do to prevent such abuse?

West Mercia Police maintain that they did everything possible; that PC Powell was a “lone wolf”.

Maybe. But in light of the misconduct finding by the Force in 2008, West Mercia Police knew that PC Powell posed a risk, and yet they appear to have done little or nothing to monitor and prevent him from abusing his position.

As I said in the 5Live interview, it beggars belief that PC Powell was not dismissed in 2008 (when he was only given a written warning), and allowed to deal with vulnerable victims of domestic abuse alone.

What of Clare?  She says, “It sickens me to think about what PC Powell has done to me and other women. I have, thanks to him, had my self-confidence and esteem shattered, my trust in men and the police robbed. He has in my eyes, behaved more appallingly than my ex-husband, he abused his power as a Police officer; someone you trust and invite into your home and life, at a time when your whole world is falling apart”.

Civil Action Against West Mercia Police

With my help, Clare is now suing West Mercia Police for compensation.

In fairness to the force, the Assistant Chief Constable apologised at an early stage and the Force’s legal department admitted liability early on. Only quantum (the value of Clare’s claim) remains to settle her claim against the police and help her move on with her life.

As a result of PC Powell’s abuse, Clare has suffered psychological damage and has undergone lengthy counselling.

Although full details of her claim were presented in September 2015, West Mercia Police failed to offer suitable compensation and/or actively engage in settlement negotiations.

To progress matters, I had no alternative but to issue court proceedings on Clare’s behalf. This is a serious step, especially for Clare, who has never previously made a claim for compensation and is unfamiliar with the process.

I urge West Mercia Police put forward a reasonable and realistic offer to settle Clare’s claim. By delaying it they are inflicting a second injustice on her and delaying her recovery.

The Chief Constable also needs to conduct a root-and-branch review of Force procedure. As Lord Acton said, “Power tends to corrupt, and absolute power corrupts absolutely.” This appalling abuse of police powers demands strong leadership and control.

If you want help with your police abuse claim contact me using the online form below.

 

Why the Metropolitan Police Won’t Apologise to Lord Bramall

By Iain Gould, Solicitor

Recently the Metropolitan Police was in the headlines because it refused to formally apologise to Lord Bramall over its treatment of him during an investigation into historic child abuse allegations.

The Metropolitan Police raided Lord Bramall’s home in March 2015 and he was later interviewed under caution on 30 April 2015. He strenuously denied the allegations and said that “There wasn’t one grain of truth in the allegations” made against him.

In mid-January 2016, the Metropolitan Police finally declared that there “was insufficient evidence” to pursue charges against the 92-year-old Second World War veteran over the historic abuse inquiry.

Sir Max Hastings, military historian and friend of the peer said that Lord Bramall had “been through absolute hell” over the allegations. He said that in pursuing the investigation of historic abuse, the Metropolitan Police had lost sight of a “sense of justice and fairness” towards those accused and that “decency demanded” an apology.

This is why he won’t get one.

Metropolitan Police Statement

Patricia Gallan, Assistant Commissioner Specialist Crime and Operations, said in a statement: “The Metropolitan Police accepts absolutely that we should apologise when we get things wrong, and we have not shrunk from doing so.

“However, if we were to apologise whenever we investigated allegations that did not lead to a charge, we believe this would have a harmful impact on the judgments (sic) made by officers and on the confidence of the public.

“Investigators may be less likely to pursue allegations they knew would be hard to prove, whereas they should be focused on establishing the existence, or otherwise, of relevant evidence.”

Miss Gallan also said that she recognised “how unpleasant it may be to be investigated by the police over allegations of historic abuse. For a person to have their innocence publicly called into question must be appalling, and so I have every sympathy with Lord Bramall and his late wife and regret the distress they endured during this investigation.”

The force had a duty to fully investigate “many serious allegations referred to us every year” and should do so “irrespective of their status or social standing”, the statement went on.

“It stands to reason that we cannot only investigate the guilty and that we are not making a mistake when we investigate allegations where we subsequently find there is no case to answer,” the assistant commissioner said.

“I accept that we can always learn and improve,” she insisted.

Wrongful Arrest Apology Sought

But do the Metropolitan Police “learn and improve” and apologise when they “get things wrong”?

My client Raheel Khan (name withheld for confidentiality reasons) would disagree after he was wrongfully arrested in October 2013.

Mr Khan had previously served the Community as a part-time magistrate but that experience had not prepared him for a late night visit from police officers and a night in the cells.

Unbeknown to Raheel, on 12 February 2013, the County Court had imposed a non-molestation order against him in response to a series of spurious and vindictive allegations made by his ex-wife.

The non-molestation order was ordered to remain in force until 11 February 2014 at 11.59pm and provided that Mr Khan was, amongst other things, forbidden to use or threaten violence, intimidate, harass or pester, or communicate directly with his ex-wife. His only means of contact with her were to be through her nominated solicitors. Crucially, the order included a power of arrest so that if my client breached the order, he was liable to be arrested and brought before the Court.

Upon service of the order, my client contested it, saying that it had been supported by untrue and unfounded allegations and included a draconian power to arrest.

The Court agreed and, on 6 June 2013, discharged the non-molestation order, which was substituted with a “General Form of Undertaking”. In that both my client and his ex-wife effectively promised to not harass each other. As such, the threat of arrest for alleged breach of the non-molestation order was withdrawn.

On 9 October 2013, Mr Khan’s ex-wife reported a breach of the (now defunct) non-molestation order, claiming that my client had sent her emails. The Metropolitan Police decided to investigate and arrest my client.

On 11 October 2013, two officers attended my client’s home address at about 10.30pm. They told Mr Khan that he was to be arrested for breach of the terms of the non-molestation order.

Raheel told both officers that the non-molestation order had been discharged and replaced with a “General Form of Undertaking” which he had in his house. He offered to show it to the officers but they refused. They told Mr Khan that:

  • they had been instructed to arrest him;
  • they would not consider his documentation; and
  • he could give an account at the Police Station.

My client was dressed in his pyjamas, was not allowed to change, and was humiliatingly led outside in front of his neighbours to a waiting marked police van. He was taken to Ilford Police Station where he was processed and imprisoned in a cell overnight.

The next morning, Mr Khan was interviewed during which he produced the documentary evidence confirming that the non-molestation order had been replaced by an “Undertaking”. The interview lasted for less than 5 minutes and he was soon released without charge.

Complaint Against the Metropolitan Police

In November 2013, Mr Khan, upset at his treatment during the embarrassing and frightening episode, submitted a formal complaint to the Metropolitan Police’s Directorate of Professional Standards.

The Directorate’s long-winded investigation ended in mid July 2014. The Force thanked Mr Khan for raising the issue and confirmed that the officers’ behaviour had been unsatisfactory and breached professional standards. It accepted that Raheel’s arrest had been unlawful and upheld his complaint.  But no apology was forthcoming.

My client felt that the officers’ punishment (“management action”) was wholly inadequate and lodged an appeal.

Following review by the Independent Police Complaints Commission (“IPCC”) in October 2014, it was considered that management action was indeed appropriate but that, in addition, the Metropolitan Police should “give consideration” to Mr Khan’s request for a written apology.

(It was presumably considered that an apology would go some way to satisfy Mr Khan that he had been wronged, that the Metropolitan Police recognised what they had done wrong, and would learn from their mistake.)

Despite this clear recommendation from the IPCC the Metropolitan Police again failed to apologise.

Compensation Claim

Having exhausted the complaint process, Mr Khan felt that he had no alternative but to pursue a civil action against the police. He sought me out as a specialist in actions against the police following an internet search.

After carefully considering the facts I took Raheel’s case and demanded an apology on his behalf. I also intimated a compensation claim, alleging, false imprisonment among other things.

Following investigation, solicitors acting on behalf of the Metropolitan Police responded with a financial offer of settlement without admission of liability or an apology.

As is so often the case, whilst compensation may provide vindication and some comfort to my client, what he really wants is an apology. Despite Mr Khan’s repeated requests, a recommendation from the IPCC, and numerous requests from me, the Metropolitan Police have failed to do this simple, and free, thing.

The Force could easily address this, even while negotiations about compensation continue. At this point there is nothing to be gained by refusing to apologise, so why not do it?

Decency Demanded

My client’s experience is not unique. Mr Khan is one of many clients that I have represented (and continue to represent) who has to fight tooth and nail for justice. Unlike Lord Bramall, most are not in the public spotlight with friends and family in high places who can bring the police to account.

The Metropolitan Police’s response to Mr Khan (offer compensation with no admission of liability or apology) is in line with my experience of their general policy. A policy that fails to recognise what I consider to be its moral and economic duty as a public organisation to apologise when in the wrong, resolve issues quickly, and avoid lengthy and expensive legal battles.

I certainly do not recognise Patricia Gallan’s statement that the Metropolitan Police apologise “when we get things wrong”. Her statement reads more like a defence of their practices and indicates an unsympathetic attitude, despite the platitudes.

Sadly for Lord Bramall, Raheel, and countless others, the “decency demanded” by Sir Max Hastings for an apology does not seem to exist at Britain’s largest police force.

For help with your civil action against the police contact me via using the online form below or at my firm’s website http://www.dpp-law.com.

 

Is Legal Aid Affecting Domestic Violence Reporting?

 

By Iain Gould, solicitor

Her Majesty’s Inspectorate of Constabulary reported this week that police forces across England & Wales are on the verge of being “overwhelmed” by “staggering” increases in reports of domestic violence.

The HMIC, which has statutory responsibility for the inspection of Police Forces in England & Wales, confirmed in its recent report on the police’s response to domestic abuse that the number of domestic violence related crimes increased from 269,700 (in the year to August 2013) to 353,100 (in the year to March 2015), an increase of 31% (see page 10 of the report).

Zoe Billingham, HM Inspector of Constabulary, described this as “a staggering increase in domestic abuse related crime” and added that the workload in many specialist police investigation units is “becoming overwhelming”, affecting the quality and speed of some investigations.

Is this “staggering increase” attributable to a rise in domestic violence cases?

The HMIC suspects not.

The report confirms that calls for assistance to the police for domestic violence related incidents fell by 10% in the 12 months to March 2015.

Instead, the Government watchdog states that the increase could be partly because police forces are:

  1. “actively encouraging” victims to come forward; and
  2. logging crime more accurately.

This would reflect “a determined effort by police leaders to make domestic abuse a priority”, the report says.

Legal Aid and Domestic Violence

I have no doubt that domestic violence has become a priority for some forces but there remain many areas of concern. For example, improving frontline police officers’ attitudes and understanding of domestic violence.

(For more on this read my recent blog posts on the experience of Alex Faragher here, here, and here.)

Another factor to explain this “staggering increase” in reported domestic violence is an unintended but foreseeable consequence of changes in entitlement to Legal Aid.

In April 2013, Legal Aid was withdrawn for almost all private family cases including:

  1. contact and residence over children; and
  2. financial issues.

This greatly reduced eligibility for Legal Aid in family matters, but people can still apply for Legal Aid if they can show “evidence” that they have been the victim of domestic violence in the previous two years. This includes:

  • an arrest for a relevant offence;
  • a caution; or
  • a conviction.

Domestic Violence Evidence

Despite these changes being introduced over two years ago, most people still think that Legal Aid is generally available in family matters.

When seeking advice, people may be surprised to find out they will have to pay for legal help privately or represent themselves in Court, unless they can prove they are a victim of domestic violence.

In the circumstances, some may be tempted to raise false allegations of domestic violence in order to secure Legal Aid.

The changes to Legal Aid introduced in 2013 mean that there is now a financial incentive to fabricate domestic violence in a family law matter.

This can result in serious miscarriages of justice, as an ongoing case of mine shows.

Domestic Violence Wrongful Arrest

My client Kevin Phillips (name changed for confidentiality reasons) believes that his arrest by the police was a direct consequence of his ex-partner’s wish to secure Legal Aid funding for legal help with custody arrangements for their (then) four-year-old son.

Mr Phillips and his partner broke up. He wanted regular contact with his son.  Unfortunately, his ex-partner refused to attend mediation and routinely cancelled informal arrangements. So in June 2014 my client lodged an application to Court to formalise access.

At the first Court hearing in July 2014, my client’s ex-partner agreed to mediation and the hearing was adjourned.

But in mid-August 2014 the ex-partner went to her local police station to report an alleged assault by my client that she said occurred on 15th December 2012.

She alleged that during an argument Mr Phillips kicked her leg resulting in a broken fibula.

She told police that she had attended her local hospital for medical treatment and that to protect her then partner Kevin, she provided an entirely different account to hospital staff, stating that she was injured falling over her dog.

The Officer dealing with the complaint made an entry on the police system that police local to my client should arrest him.

On 15th August 2014 it was recorded that Mr Phillips’ local force had declined to arrest because of the delay between the alleged incident and the complaint.

Instead, on 18th August 2014, the officer assigned to the case arranged with Kevin for him to attend a police station at 6pm for an interview under caution. The relevant entry on the police system contains no reference that the officer in charge was contemplating arrest.

My client attended the police station on the date and time agreed.

Mr Phillips was shocked and confused when, instead of a voluntary interview, he was arrested in the station foyer on suspicion of Grievous Bodily Harm.

During interview under caution, Kevin denied any involvement and said that the assault complaint was a complete fabrication.

He was later released on bail pending further enquiries until 24th September 2014.

On 1st September 2014, the officer in charge recorded on the police computer system:

“I am concerned that even with medical evidence it will not pass the full code test as there is very little prospect of conviction due to the time delays and the complainant told the hospital and her family that the injury was caused by falling over the dog”.

 Despite this my client was subsequently re-bailed on 29th September 2014, 21st October 2014, and 17th November 2014.

On 31st October 2014 the Crown Prosecution Service recommended no further action.

Abuse of Legal Aid System

My client should never have been arrested.

Following his experience, he lodged a complaint against the police. Somewhat unusually, but, no doubt, recognising the strength of his argument, Mr Phillips’ complaint of unlawful arrest was upheld.

This was on the basis that there was no necessity to arrest him as he attended voluntarily for the interview on 18th August 2014.

On the back of this decision, Kevin contacted me to bring a civil claim for compensation against the police.

Despite his complaint being upheld, as expected with this particular police force, liability was denied.

I am now in the process of instituting Court proceedings and have no doubt that his claim will succeed and he will be compensated.

But no matter how much compensation he receives (and the level of compensation available is regrettably modest), I suspect this will be of little comfort to my client. He has suffered:

  • the embarrassment and humiliation of arrest;
  • the stain on his good character; and
  • his life being put on hold for three months while on police bail.

Significantly, the arrest (based on false allegations) meant that the ex-partner got Legal Aid for expert help in the family proceedings to fight his application for regular contact with his son.

My client had to pay his family lawyers privately which added to the strain in a matter of great personal importance.

I hope that other people will not suffer like my client and that malicious accusations of domestic violence are not being used in a cynical attempt to “play” the Legal Aid system.

My concern however is that the recently reported HMIC figures suggest that this is exactly what is happening.

Contact me for help with your civil action against the police using the online form below.

 

Are Police Disciplinary Hearings “robust, independent, and transparent”?

Iain Gould, solicitor, asks if police disciplinary hearings are robust, independent, and transparent.
Iain Gould, solicitor, asks if police disciplinary hearings are robust, independent, and transparent.

By Iain Gould, solicitor

I recently blogged on the case of Alex Farragher whose complaint about police misconduct led to a public police disciplinary hearing.

As of 1 May 2015, in accordance with Section 9 of The Police (Conduct) (Amendment) Regulations 2015, police disciplinary hearings “shall be in public” (subject to the discretion of the person chairing or conducting the hearing to exclude any person from all or part of the hearing).  That change, along with others, was aimed to create a “more robust, independent and transparent” police disciplinary system.

Has it worked?

The Law in Public Hearings

What does “in public” mean? The OED definition is “openly, for all to see or know”.

The concept of open justice has long been recognised.

In Scott v Scott (1913) AC 417, Lord Shaw of Dunfermline said “that publicity in the administration of justice ….(is) one of the surest guarantees of our liberties” and cited passages from Bentham and Hallam in support of the general thesis that in Bentham’s phrase “Publicity is the very soul of justice”.

The principle is just as important now as it was then; in Hodgson v Imperial Tobacco Limited (1998) 1 WLR 1056, Lord Woolf MR relied upon the following passage from Sir Jack Jacob’s Hamlyn lecture, The Fabric of English Civil Justice (1987) where he said:

“The need for public justice, which has now been statutorily recognised, is that it removes the possibility of arbitrariness in the administration of justice, so that in effect the public would have the opportunity of ‘judging the judges’: by sitting in public, the judges are themselves accountable and on trial”.

An application of the principles in Scott v Scott is to be found in McPherson v McPherson (1936) AC 177, a decision of the Privy Council’s in a Canadian case. There the undefended divorce of a well-known politician was conducted not in a court room (though there were empty courts available) but in the Judges’ Library. There was direct public access to the courts, but not to the Judges’ Library. It could be approached from the same corridor which encircled the building and provided direct access to the courts, but only through a double swing door, one side of which was always fixed shut, and on which there was a brass plate with the word “Private” in black letters on it. Through this swing door was another corridor, on the opposite wall of which was a further door to the Judges’ Library. Both this internal door and the free swinging half of the double doors were in fact open during this hearing. The question for the Court was:

“… whether those swing foots with ‘Private’ marked upon one of them were not as effective a bar to the access to the library by an ordinary member of the public finding himself in the public corridor as would be a door actually locked”. (p198)

Their answer, while accepting that no actual exclusion of the public was intended, was that:

“… even although it emerges in the last analysis that their actual exclusion resulted only from that word ‘Private’ on the outer door, the learned judge on this occasion, albeit unconsciously, was ……, denying his court to the public in breach of their right to be present, a right thus expressed by Lord Halsbury in Scott v Scott: ‘every court of justice is open to every subject of the King’.” (subject to any strictly defined exceptions).

In Storer v British Gas plc (2000) 2 All ER 440, the Court of Appeal decided that this fundamental principle was no less important in employment proceedings than in other proceedings. In that case, Mr Storer brought a claim against his employers. At a hearing at the Industrial Tribunal Centre, his claim was dismissed. On appeal, Mr Storer argued that this decision should be quashed on the basis that the hearing had not been held in public.

The relevant facts were as follows:

At the Centre, “12 Industrial Tribunals were sitting on that day.  The lists of cases to be heard in each were on public display.  There was also a list of floating cases, i.e. cases which had not been allocated to a court, but would be heard as and when a court became available.  Mr Storer’s case was one of these.  As the morning wore on, it seemed clear that his case would not be reached unless it was heard in a room not normally used as a court-room.  One was available – namely the office of the Regional Chairman, as that position was unfilled at the time.  As a Judge was available, and as the room was available, the court authorities took the decision to have the hearing there.  They did not consult Mr Storer on this.  The parties (including Mr Storer’s wife) were escorted there by a guide.  No member of the public accompanied them.  It is accepted that Mr Storer’s application for leave to appeal to the Court of Appeal accurately summarises the geographical situation of the room that was used:

(a)    The hearing was held behind a locked door which separated the area to which the public had access from that part which the learned Judge described as the ‘secure area’ on the second floor of the Tribunal office. This ‘secure area’ [is] protected by the door locked with a bush-button coded lock [which] provides the only means of access to the large open plan office off which the Regional Chairman’s room is located.

(b)   This locked door is clearly marked with a large sign stating ‘Private’ in black letters on a white background.

(c)    All access stairs from the public areas on the ground and first floors to the second floor where [the] locked door is located are marked clearly with a large sign stating”

PRIVATE

NO ADMITTANCE

TO PUBLIC BEYOND

THIS POINT

The Court concluded that the hearing had not been held in public, even if, in fact, no member of the public was physically  prevented from attending. The obligation to sit in public was fundamental, and the tribunal had no jurisdiction to conduct itself in this way.

How Public are Police Disciplinary Hearings?

Both my client Mr Edwin Taylor, and myself, have first-hand experience of the lengths to which the police will go to follow the letter of the law while ignoring the spirit of it in public police disciplinary hearings.

Following an incident that occurred on 14th February 2013, my client Mr Edwin Taylor lodged a complaint to the Metropolitan Police. The following description is based on his version of events.

Mr Taylor was driving home from work when he was stopped by a police carrier van. Edwin got out of his car. He was told that he had been driving erratically and asked to hand over his car keys. He refused.

Suddenly, one of the officers grabbed hold of Mr Taylor’s left arm and a struggle began. Many other police officers from the police van then stormed out and forcibly moved Edwin towards the pavement.

In doing so, Mr Taylor fell to the ground where he banged his head.

Edwin, with five or more police officers on top of him, was then handcuffed and leg restraints were strapped on him.

Mr Taylor was then told that he was under arrest for breaching s.5 of the Public Order Act. So as to further justify arrest, one police officer then said that he ‘could smell cannabis’ in Edwin’s car.

Mr Taylor was then transported to a police station. En route, Edwin said to both police officers that he was going to sue them for what they had done. An officer said in response “We’ll just say that you assaulted a police officer”.

Mr Taylor was then kept in custody until the next day and after he was interviewed for the alleged offences. Edwin was then bailed to return to the police station a few weeks later.

On his return, he was charged with assaulting a police officer and resisting arrest.

There was no further action against Mr Taylor in respect of his driving (the reason for his stop), the cannabis allegation or breaching s.5 of the Public Order Act.

At the first opportunity, Edwin pleaded not guilty and his case was eventually listed for trial nearly a year later. At Trial, the CPS without notice or reason decided to discontinue.

Police Disciplinary Hearing Access

After investigating Mr Taylor’s complaint the Professional Standards Bureau decided to bring gross misconduct proceedings against three of the officers.  The police misconduct hearing finally went ahead last week in the Empress State Building, South West London, nearly three years after the incident.

Edwin is intent on bringing a civil claim against the Metropolitan Police for unlawful arrest, assault and malicious prosecution. To find out how the officers performed, I sent my colleague to sit as watching brief.

My colleague met up with Mr Taylor outside the Empress State Building and they went into reception together. Having been frisked by security, Mr Taylor was ushered upstairs to the hearing room. My colleague was denied access as his name was “not on the list”. My colleague queried this given that the hearing was “in public”. He was told it didn’t matter, his name must be on “the list”.

My colleague asked to speak to the Investigating Officer and explained his role. Pursuant to Regulation 30 (3) of the Police (Conduct) Regulations 2012, Mr Taylor was (irrespective of any argument that this hearing was allegedly being held in public!), entitled to attend the hearing accompanied by one other person as an observer and my colleague was that person. The Presenting Officer promptly authorised entry.

My colleague was then escorted to the hearing. Here’s what appeared on the hearing room door:

Public Police Disciplinary Notice.
Public Police Disciplinary Notice.

I must say that I found my colleague’s experience intriguing.

Metropolitan Police hold their misconduct hearings at Empress Buildings. According to their website, “any member of the public or press wishing to attend a misconduct hearing may apply to do so but due to limitations on space and capacity, attendance at the hearing will be administered and booked by application”.

Should you be interested, you must then complete and submit an application providing your full name, address and date of birth.

The lucky few successful attendees are then sent a confirmation email but admission to the hearing is conditional. They must produce their personal registration letter (confirmation email) that was issued by the hearings unit and supporting photographic identification (passport, and/or driver’s licence), along with proof of address (ie a recent utility bill).

Needless to say, my colleague reports that no members of the public attended any one of the five days of the hearing.

Police Disciplinary Hearings Restrictions

Having checked out the websites for most of the other police forces in England and Wales, the Metropolitan Police’s conditions are fairly standard. There are however a few quirks here and there.

West Yorkshire Police state that notice of a public hearing will be made not less than five days prior to the hearing but that applications to attend “must be submitted within 48 hours of the notice being published”. This could effectively be a three-day window.

Most stress that space is limited. Thames Valley Police are bold enough to announce that “available space will limit numbers of the public attending to six people including members of the public”.

Should you be fortunate to apply in time, be selected, and have the necessary proof of ID with you, there’s still no guarantee that you will actually sit in on the hearing. Some like Gwent Police openly admit that “The Public/media will be given access to a room at Gwent Police HQ” which will broadcast “a live feed of the hearing”.

Consequences of Police Policy

To increase public trust in our police force, the police should freely and unconditionally open their doors to members of the public at disciplinary hearings.  Otherwise they are in danger of appearing to be (literally) a closed shop and to encourage an assumption that police officers judging  other police officers do not do so in a fair, unbiased and transparent way.

For example, Deputy Chief Constable of Essex Police Derek Benson claims that “Our intention will be to hold these hearings in public and make them as accessible as possible.”

But his force’s restrictive conditions (shown here) suggest to me that Essex Police (along with other forces) are paying only lip service to the concept of holding disciplinary hearings in public. In reality, they are putting many obstacles and discouragements in the way of the interested public.

This undermines the reputation of the police as being unbiased and effective in the investigation of crimes or misdemeanours committed by their own.

In the case of Storer v British Gas plc, the coded door lock was an actual physical barrier which prevented all access to the public. There was, the Court said “no chance of a member of the public dropping in to see how Industrial Tribunals (as they were then) were conducted, and the fact that none attempted to does nothing to show that this Tribunal was conducting the trial of the preliminary issue in public”.

What would the Court of Appeal make of the various barriers being put up by police forces around the country?

Contact me for help with your civil actions against the police using the online form below or here.

Update

I am pleased to confirm that at a Joint Settlement Meeting, the Metropolitan Police agreed an out-of-court settlement of £46,000 together with my client’s legal fees.

Does an Unjustified Taser Assault Point to a Wider Trend?

Iain Gould solicitor, asks if Taser assaults point to a wider trend.
Iain Gould solicitor, asks if Taser assaults point to a wider trend.

By Iain Gould, solicitor

I have just settled a disturbing Taser assault case for Cornelius Thomas (details used with permission) against West Midlands Police.

I’m concerned about Mr Thomas’ personal experience, and also what this case says about police use of Tasers.

Taser Assault of Mentally Ill Man

Cornelius, who was aged 35 at the time of the incident, has a psychotic illness which has been diagnosed as bipolar affective disorder.

His condition first appeared in 1999 and he has received help from mental health services from 2001 onwards due to it repeatedly recurring.

On Friday 10 June 2011, he sadly suffered a deterioration in his mental state triggered by a combination of life stressors and a failure to take his medication.

After a mid-afternoon visit by his mental health doctor, Cornelius’ mental health team decided that he should be sectioned under the Mental Health Act. The team requested police assistance and an ambulance as this involved taking Cornelius to a psychiatric hospital unit and depriving him of his liberty.

Four Officers from West Midlands Police were assigned and, that evening, met the mental health team outside Cornelius’ home in Birmingham.

Cornelius, who was unaware of the decision to section him, had been out of the house with his 8-year-old daughter. At about 8pm he arrived home in his car with his daughter safely in the back seat. He saw two police cars and an ambulance near his house.

What happened next is a matter of dispute but Cornelius maintains that he was manhandled and then Tasered multiple times despite being non-aggressive and simply trying to escape from the officers into the safety of his own home.

In turn, West Midlands Police suggest that Cornelius was violent and uncooperative and in their Defence which was filed at court, admit that Cornelius was forcibly pulled from his car and Tasered four times:

  • in his chest, then
  • to his upper torso, then
  • to his torso again, before
  • finally in his back.

On each occasion he was Tasered, Cornelius said he felt a surge of electricity, intense pain and fear.

Cornelius told me that each Taser assault resulted in him falling to the ground suffering multiple minor soft tissue injuries, but he managed to get up and move a little closer to his front door.

On the final occasion that Mr Thomas was Tasered, he says that both his hands were in full view and that he was no threat. At this point Cornelius had his back to the police, his left hand on the door handle, and his right hand on the keys in the lock. Despite this, he was electrocuted again.

After the fourth Taser assault brought him to the ground Cornelius was handcuffed and transported to hospital where he was de-arrested and detained under Section 2 of the Mental Health Act 1983.

Following a medical examination, a Taser barb that had become embedded in the skin of his chest was removed.

Police Taser Assault Compensation Claim

Cornelius initially instructed non-specialist local solicitors who formally submitted a claim saying that West Midlands Police were negligent in their decision to deploy Tasers.

Following investigation, liability was denied, the Defendant maintaining that use of the Taser was “lawful, justified and proportionate in the circumstances”.

In response, his then solicitors advised Cornelius that the prospects of success were not good enough to “justify …proceeding further” and promptly closed their file.

Undeterred, Cornelius sought me out following research on the internet as a specialist in actions against the police and in particular the inappropriate use of Tasers.

In my opinion the claim had been poorly framed and investigated.

Cornelius gave a very credible account of what had happened. On his version of events it appeared to me that the officers had acted with unnecessary aggression and coercion rather than care and compassion.

I thought Cornelius had good prospects notwithstanding what his previous lawyers described as “the glaring inconsistencies between the account given by Mr Thomas and …. the Police Officers involved at the time of the incident when he was sectioned under the Mental Health Act”.

My confidence in Cornelius and his Taser assault claim has now been proven. He has agreed to an out-of-court settlement of substantial damages from West Midlands Police following the issue of court proceedings.

You can read more about Cornelius’ experience in The Mirror.

Taser Assaults on Mentally Ill Black People

But what of the wider picture?

I have recently commented on statistics that suggest that black people are three times more likely than white people to be involved in Taser incidents.

The research shows the electric stun gun was drawn, aimed or fired 38,135 times in England and Wales over five years.

In more than 12% of cases Tasers were used against black people, who make up about 4% of the population.

I have long maintained that there is a growing trend for the unnecessary and unreasonable use of Tasers (see here, for example).

This latest research proves a disproportionate use against a certain ethnic group.

Of that community, can it also be said that there is yet further disproportionate and excessive use of Tasers against those with mental health issues?

Matilda MacAttram of the campaign group Black Mental Health UK, maintains that there is emerging evidence that police are using Tasers against people with mental health problems, particularly those from African-Caribbean communities.

She is quoted as telling the BBC, “There’s an increasing amount of data, both anecdotal and also concrete, which show this supposedly “non-lethal” weapon is being used against people who are in a very vulnerable state”.

Cornelius Thomas would, no doubt, agree.

Contact me for expert advice if you have suffered a Taser assault through no fault of your own.

 

Why the Police Disciplinary Tribunal Failed Alex Faragher

Photo of Iain Gould, solicitor, who discusses why a police disciplinary tribunal failed Alex Faragher.
Iain Gould, solicitor, discusses why a police disciplinary tribunal failed Alex Faragher.

By Iain Gould, solicitor

This afternoon, a public police disciplinary tribunal decided on the seriousness of misconduct by two Officers who had admitted breaching the standards of expected behaviour.

The hearing was in respect of a complaint lodged by my client, Alex Faragher. I have previously blogged on this case here, where I explained why police misconduct investigations must be reformed and later asked if the police are guilty of gross misconduct.

Sadly, my comments in the conclusion of the earlier post about a perception of bias have been borne out by today’s proceedings.

The disciplinary panel at today’s tribunal was made up of two senior police officers, Assistant Chief Constable Marcus Beale (Panel Chairman), Detective Superintendent Blackburn, and an independent lay individual, David Bowden.

Police Disciplinary Tribunal Finding

After consideration of the facts and on the basis of the Officers’ record, the disciplinary panel decided that their behaviour was misconduct only rather than gross misconduct.

I am dismayed by this verdict.

Is it right and proper that these two men, who admitted their disgraceful misconduct, continue to be employed as police officers for West Midlands Police?

After much publicity, certain changes have been introduced to the way that police officers are disciplined so as to create a “more robust, independent and transparent” police disciplinary system.

One of the changes introduced is holding misconduct hearings in public. As I have previously said, that’s a start.

Sadly for Ms Faragher and so many others, the system hasn’t changed materially in that the police continue to prosecute, defend, and sit in judgement on themselves.

Disciplinary Tribunal Punishment

Assistant Chief Constable Marcus Beale said the voicemail comments fell “substantially below what is expected of a West Midlands Police officer”.

However, he added: “The panel assess that the breach does not require the full range of sanctions, and that it amounts to misconduct.”

The punishment? Both Officers have been issued with written warnings.

My client, who attended both days of the police disciplinary tribunal, is extremely disappointed with not only the process, but also the findings, and result.

As a woman who was an alleged victim of domestic violence, all she wanted was to be treated with respect and professionalism. After being treated so badly by the two Officers she feels that the disciplinary tribunal has added insult to injury by letting the Officers off the hook.

She is also concerned that this sends a message about how West Midlands Police treat victims of crimes (in particular domestic violence against women) and that others might be put off reporting crime.

The panel at the police disciplinary tribunal had an opportunity to right a wrong and deal with these concerns. They failed.

Ms Faragher is now en route to ITV studios to be interviewed. The panel at the police disciplinary tribunal and two Officers may think that this matter is now settled. But for her, this story is not over.

UPDATE 29 October 2015: Click here to watch the tv news report.

Contact me for help with your civil action against the police using the online form below or via my firm’s website.

 

Are the Police Guilty of Gross Misconduct?

Photo of Iain Gould, solicitor, who discusses gross misconduct in police matters.
Iain Gould, solicitor, discusses gross misconduct in police matters.

By Iain Gould, solicitor

I have previously blogged about the misconduct proceedings brought against two West Midlands Police Officers due to commence today, 26 October.

To recap, my client Alex Faragher called West Midlands Police to lodge a complaint of domestic violence. The Officers assigned to her case, subsequently called her mobile to discuss the allegation. When the call went to answer phone, they inadvertently left an expletive ridden voice mail.

In the voice mail, you can hear these two men calling this victim of domestic violence a “f….. bitch” & a “f….. slag” before suggesting that they “go back,  f.…… draft the statement out ourselves and then just get the bitch to sign it”.

Ms Faragher lodged a complaint about the voice mail and the Officers’ subsequent behaviour at the Police station as regards the preparation of her statement of evidence.

Police Misconduct Hearing

I am pleased to report that at a public hearing today, and despite the best efforts of the force’s Professional Standards Department during the course of the investigation to dilute the misconduct so that it related to the indisputable voice mail only, the Officers admitted all allegations of misconduct, i.e. in relation to the voice mail and conduct at the Police Station.

Apparently recognising the seriousness of the situation, one of the officers, PC Guest, repeatedly apologized, according to today’s newspaper reports.

Gross Misconduct in Police Matters

The issue for the tribunal (made up of two senior police officers and an independent lay person) to now decide is whether the Officers’ conduct amounts to just misconduct or whether their behaviour is so serious as to qualify for gross misconduct. So, what’s the difference?

Misconduct is defined as “a breach of the Standards of Professional Behaviour”.

Gross Misconduct is defined as “a breach of the Standards of Professional Behaviour that is so serious as to justify dismissal”.

(see Para 29 Schedule 3 Police Reform Act 2002).

This is not very helpful.

But, when you recognize that this an employment matter at its heart, things become clearer.

Gross misconduct in that context is either deliberate wrongdoing or gross negligence by the employee (police officer) which is so serious that it fundamentally undermines the relationship of trust and confidence between the employee and employer (Chief Constable).

Today, barristers employed by both officers made representations to the panel that the admitted misconduct was simply that, misconduct. The problem for the Officers is that:

  • the eyes of the world (given that the hearing is in public) are upon them, and
  • in my opinion, the behaviour (as captured on voice mail) is so extreme that it has brought the force into disrepute.

A finding of gross misconduct and dismissal without further notice must be the only possible sanction.

We should know tomorrow.

Read my blog for more insights into matters involving the police.

 

Why Police Misconduct Investigations Must Be Reformed

By Iain Gould, solicitor

At 11a.m. on Monday 26 October, two Police officers of West Midlands Police face a disciplinary hearing for gross police misconduct.

The hearing will take place in public. Police disciplinary hearings became public (subject to certain exceptions) on the 1 May 2015.  That change, along with others, was aimed to create a “more robust, independent and transparent” police disciplinary system.

But have the reforms into investigations of police misconduct worked? Read on to find out why I think not.

Police Misconduct Allegation

The two West Midlands Police officers due to be brought to account on Monday face an allegation lodged by my client, Alex Faragher in January 2014. (Alex gave me permission to use her details.)

Ms Faragher’s complaint centered on an incident that happened during an enquiry into an alleged domestic violence assault.

Two male officers attended upon her shortly after the incident but Alex was too upset and distressed to provide full details. The officers subsequently tried to contact Alex on her mobile phone but were unable to get through.  Accordingly, they left her a message but then failed to hang up properly.  Their subsequent conversation was then mistakenly recorded.

In the two-minute recording (an extract of which you can listen to here) one officer allegedly says to the other, “F…….  bitch, I specifically said, “you’re not going to give us the run around are you?” “No I want to press charges” she said. “F……. slag”.

A second officer then referred to writing their own version of her witness statement after her boyfriend had been arrested for assault.  He can allegedly be heard saying, “Either that or the only other thing we do is go back, f….ing draft the statement out ourselves and then just get the bitch to sign it”.

Later that evening, unaware of the voice recording on her phone, Ms Faragher went to Sutton Coldfield Police Station to give her statement to the same two officers.  Ms Faragher believes that her treatment at the Police Station was equally unprofessional because the officers did not take her dyslexia into account. They prepared a statement in her name and on her behalf and persuaded her to sign it without her first being permitted to read it and further because the officers then ignored her requests to amend particular parts of her statement.

It was only upon her return home later that evening that she both saw and heard the voicemail on her phone.  After hearing it, she felt “victimised and humiliated”. She said, “They turned up after 6:30pm and tried to call me and mistakenly didn’t hang up.  I picked up the conversation they then had in the police car that was recorded as a voicemail. I could not believe what I was hearing.” she said.

Photo of Iain Gould, solicitor, who discusses police misconduct investigation reform.
Iain Gould, solicitor, discusses police misconduct investigation reform.

Police Misconduct Complaint

In line with the policy set by the Independent Police Complaints Commission (“IPCC”), one would assume that the resulting investigation would take a relatively short period of time.  When Ms Faragher first complained she gave the police a copy of the recording along with a detailed account of what had happened.  She has since co-operated fully with the investigators.

Despite this, it took an investigator from the Force’s Professional Standards Department six months to finalise their investigation and produce their Complaint Investigation Report.

The Report was inadequate, even after all that time and my client’s help. Although both officers were interviewed under caution on the 3 April 2014, the Report failed to identify the officers’ response to the recording and answer a crucial question: do they accept that it’s them?

Both officers did however provide an account of subsequent events at the Police Station. Both maintained that they had acted properly at all times and any allegation of misconduct (in this respect) was denied.

After consideration, the investigating officer decided to not uphold this aspect of the complaint on the basis that there was no evidence available to corroborate either Ms Faragher’s account or the officers’ account.

But the Investigating Officer concluded that the officers had a case to answer in relation to the allegation that they had spoken about Ms Faragher in a discourteous and disparaging manner. This part of the complaint was upheld and will be addressed at the misconduct hearing.

Complaint to the IPCC

Whilst Ms Faragher was pleased that the officers were to be brought to account in relation to the taped conversation, this was only part of her complaint and the fact remained that the officers’ treatment of her at the station was unprofessional.

The decision of the investigator was, in my opinion, perverse, and designed to protect the officers from further scrutiny and a form of damage limitation.

On my advice, she appealed to the IPCC, the independent police watchdog.

On review by the IPCC in December 2014, it was found that whilst there was no evidence available to corroborate either the officers’ account or Ms Farragaher’s account of events at the police station, the taped recording added weight to my client’s complaint, particularly the comment that the officers would “go back, f….. draft the statement out ourselves and then just get the bitch to sign it”.

Accordingly, the IPCC case worker found that on balance, Ms Faragher’s complaint held “more credibility” and therefore upheld the appeal and decided that there was a case to answer for gross misconduct for both the recording and what happened at the police station.

The police disagreed.

In March 2015, West Midlands Police told the IPCC that they did not accept its recommendation that the officers face a Gross Misconduct hearing about events at the Police station.

In May, the IPCC stated that their original decision held and that West Midlands Police should include the additional complaints.

As a result, both will be addressed at Monday’s hearing.

Justice Delayed

On the face of it, West Midlands Police are harbouring two delinquent employees who should be dealt with as soon as possible.

But it has taken nearly two years from when Ms Faragher lodged her complaint to get them to appear before a Gross Misconduct hearing. All the time those officers have continued to work, although they are now reported to be on restricted duties in “non-public facing” roles.

Natural Justice demands that investigations into alleged police misconduct are full and fair, and that disciplinary proceedings are finalised in an expeditious manner.

Maintaining a system where police investigations are undertaken by officers in the same force leads to a perception of bias. And because there is no limit on the extent of investigation process or the time allowed, the most that the IPCC can demand is that the investigation process “should be proportionate to the nature of the complaint”.

The biggest stumbling block in assuring public trust and accountability in the police is the sense that internal discipline is not implemented effectively.

Cases like Alex Faragher’s show that, while reforms like public hearings may help, there is much more to do.

Contact me for help with you police misconduct matter using the online form below or via my firm’s website.