Police Search Warrant – Unlawful Entry Part 3

So far, I have explored circumstances where the Police have obtained a Search Warrant following application to a Magistrate and the Police have then either attended the wrong house (Part 1) or alternatively, have raided the right house but on the basis of faulty intelligence (Part 2).

What about situations where the Police have obtained a Warrant on the basis of up-to-date  and accurate intelligence and then raided the address identified in the Warrant but where they have then failed to execute  the Warrant correctly (and in accordance with Section 16 of PACE)?

Section 16 of PACE states as follows;

(1)    Execution of warrants.

A warrant to enter and search premises may be executed by any constable.

(3)    Entry and search under a warrant must be within three months from the date of its issue.

(3a) If the warrant is an all premises warrant, no premises which are not specified in it may be entered or searched unless a police officer of at least the rank of inspector has in writing authorised them to be entered.

(3b)No premises may be entered or searched for the second or any subsequent time under a warrant which authorises multiple entries unless a police officer of at least the rank of inspector has in writing authorised that entry to those premises

(4)    Entry and search under a warrant must be at a reasonable hour unless it appears to the constable executing it that the purpose of a search may be frustrated on an entry at a reasonable hour.

(5)   Where the occupier of premises which are to be entered and searched is present at the time when a constable seeks to execute a warrant to enter and search them, the constable—

(a)shall identify himself to the occupier and, if not in uniform, shall produce to him documentary evidence that he is a constable;

(b)shall produce the warrant to him; and

(c)shall supply him with a copy of it.

(6)   Where—

(a)the occupier of such premises is not present at the time when a constable seeks to execute such a warrant; but

(b)some other person who appears to the constable to be in charge of the premises is present,

subsection (5) above shall have effect as if any reference to the occupier were a reference to that other person.

(7)   If there is no person who appears to the constable to be in charge of the premises, he shall leave a copy of the warrant in a prominent place on the premises.

(8)   A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued.

Where the Police have executed a warrant, it is therefore necessary to check very carefully whether there has been compliance with the criteria.  In R v CC of Lancashire ex P Parker  the Court of Appeal decided  that the wording of S15(1) was such, that any non-compliance  would render the whole search unlawful.

In 2007, I successfully concluded a claim on behalf of my client David Khan against West Yorkshire Police.  I helped establish that he had been the victim of an unlawful arrest and assault by police officers employed by the force and he recovered £15,000 in compensation as well as a full apology.

Several years earlier, David contacted me again. In the early hours of the morning on 6 January 2012, David had been at home preparing  to shower whilst his two children were asleep in bed.  As he closed the bedroom curtains, he saw a bright light from outside shining directly into his bedroom.

David peeped through the curtains and saw what he thought were police officers armed with machine guns approaching the side of his home which is situated in a cul-de-sac.

He started to feel anxious and worried that he was about to be subjected to another wrongful arrest and assault.  He therefore went out onto the hallway and stood at the top of the stairs. From outside David heard a voice shout words to the effect of “Resident of number 24, come outside”.  David  made his way downstairs, unlocked and opened the door.  He could see a number of police officers pointing guns at him but did  not know why they were there.

Given that the police were armed, David did not want there to be any suggestion that he was in possession of a weapon and therefore placed his mobile phone on the floor and then stepped outside and stood in the front yard with his arms held up above his head.

Once outside, David also realised that a police helicopter was above the house.

David could see that there were two armoured police vehicles parked in front of the gates to his driveway and that the road was blockaded in both directions. He could also see that there was an armed officer leaning on the wooden fence of the adjacent premises. There was a third officer stood by the pillar to the gates who was also pointing a firearm towards him.

David was asked if he was ‘Richard Kimble’.  In response David said that he was not and that his name was David Khan and gave his date of birth.

Richard Kimble was his ex partner’s brother.  Richard had never lived at the premises and to the best of David’s knowledge had never used the address for any reason.

The officer asked David who had been looking out of the bedroom window.  David told the officer that it had been himself. The officer repeated his question and he repeated his reply.

The officer  then asked him if there was a child in the house and it then occurred to David  that he was referring to his younger son who was upstairs and who had obviously been awoken by the commotion.  As a result David told the officer that it was his son who was at the bedroom window.

The officer told David  to shout up to his son and tell him to come downstairs.  David did as he was asked and his son made his way downstairs and outside.

David then told the officer that his daughter was also upstairs in bed and he was told to go into the house slowly and call her downstairs.

During this discussion with the officer David noticed that the officer had a photograph of  Richard Kimble and that he appeared to realise David was not the person he was looking for.

David returned  into the house and went upstairs to his daughter’s bedroom. Fortunately, at that time she was asleep and had not witnessed events outside. He woke his daughter.  She was understandably dazed and disorientated and did not realise what was going on.  He told her that the police were outside wanting to speak to him and that they were armed with guns.

David’s daughter  became instantly upset and started to cry. She thought that David would be beaten up by police again as during the incident which led to David’s previous civil claim against the same police force.  David told her that everything would be alright but that she needed to come downstairs with him.  He took his daughter downstairs and both went outside and joined his son.

David was then searched by an armed police officer at the rear of one of the police vehicles  that was parked near his driveway and was then told to make his way towards a police vehicle parked a few metres away and to take his son and daughter with him.

The situation was extremely frightening and embarrassing.  Neighbours who had  become aware of the presence of the police had come outside to see what was going on.  It seemed as though the whole street was outside.

David and his two children sat inside the police van, still in shock and in the dark as to why the police were even at the premises.

There was no police officer in the vehicle with David and the children and the door was kept slightly open. David felt shock, apprehension and concern for his children’s welfare whilst his daughter sat on his lap, crying. They were kept in the van for about 30 minutes.

During this time, firearms officers performed a preliminary search of the house to ensure no one else was in the house and that it was safe for other officers to conduct a full search.

Eventually, the van door opened, David and the children were told they could go back inside if they wished.

By this time, the armoured police vehicles had left the scene, as had most of the police officers.

As they went back into the house, the only police officers remaining were two CID officers in plain clothes.

The officers told David that they would be carrying out a search of the premises.  They explained that they would be starting the search in the children’s bedroom so that the children could go back to bed once the search was finished.

One of the two police officers remained with David and the children in the lounge while the other carried out a search upstairs.

As and when the officer had finished searching the children’s bedrooms, the children were allowed back upstairs and went back to bed. The search lasted for about an hour. At this point, the officer said to David “This is a copy of the search warrant”.

Prior to the officer saying this there had been no mention that the police officers were in possession of a search warrant. Further, no copy of the warrant was shown to David prior to this moment.

The officer produced a document and requested that David sign it to confirm that nothing had been seized by the police.  David signed this document and a copy of the search warrant was then given to him.

The police officers then left the premises.

It transpired that two serious armed robberies had been committed at 02:21 hrs and 04.39 hrs on 4 January 2012.  In each case a gun was used and discharged.  Enquiries showed that the robber had used a particular motor car. At or about 5pm on 5 January 2012 a police officer identified Richard Kimble as a man shown on CCTV getting into that same motor car on 3 January 2012.

Officers applied for and secured  an ‘out of hours’ search warrant to search Mr Kimble’s last known address, namely David’s home address for firearms/ammunition.  This had been falsely given to the police by Richard as his home address when he was stopped in October 2011 and without David’s knowledge or permission.

David was at first concerned that the police raid was some form of ‘pay back’ because he had previously brought a successful civil claim against the force but in truth, the police decision to obtain and execute an armed search warrant was entirely legitimate.

So

  • Police were at the right address as detailed in the warrant.
  • Police intelligence clearly linked the offence to the house (even though David and his children were entirely innocent).

BUT, on close inspection, the police had failed to comply with the terms of Section 16; on David’s account, the officers had entered his home address without producing any search warrant to them and without supplying a copy rendering their entry unlawful since contrary to Section 16(5) of PACE.

It was on this discreet point that West Yorkshire Police subsequently admitted liability and my clients went on to recover substantial compensation for trespass, false imprisonment and assault.

As Parts 1, 2 and 3 show, it is imperative that for the police to establish a lawful entry/search of premises, they must

  • Get the right house.
  • Ensure the intelligence upon which they secured the warrant is up to date and as reasonably accurate as can be, and
  • Comply with the provisions of Section 16 of PACE.

“An Englishman’s Home is his Castle ?”

Reflecting on this case, I am very happy that I was able to secure compensation for David and his family after this highly distressing incident – but also I am conscious that some might think the award of compensation was only due to a ‘technicality’ i.e the family’s entitlement to damages did not arise in this case because of wrongdoing on the part of the West Yorkshire Police but purely because the officers involved failed to give David the search warrant at the start of the process, rather than the end. Had they given it to him at the beginning, the search would have been entirely lawful and no right to compensation would have arisen for David or his children.

Nevertheless, I think it is quite correct that David brought this claim, and it is absolutely right to hold the Police to account to the strictest ‘letter of the law’ when they are claiming entitlement to enter and search a private home, going through all of a family’s personal possessions and  in the process – effectively – holding the family (including children) captives and shattering the sense of peace and security that we are all surely entitled to feel in our homes – particularly children.

I wrote in my last blog on this subject about the importance of the Human Rights Act, enshrining the right to Privacy and Family Life, but of course the concept that a person’s home is their private space and is not to be infringed lightly by the forces of the State is far older than the Human Rights Act or the European Convention on Human Rights – it is one of the fundamental tenets of ‘British Liberty’  long upheld by the Common Law of England & Wales before the HRA was even dreamt of, and summed up by the famous expression “An Englishman’s home is his castle.” That is why it is quite correct that the modern law governing search warrants, as set out in PACE, sets strict guidelines with which the Police must comply before any entry into a private home can be deemed legal. To allow the Police to ‘get away’ with these strict guidelines, such as in this case a failure to produce the warrant for the person whose home was being ‘invaded’ by them, would be to remove an important safeguard  upon the power of Police officers as agents of the State, upsetting the balance between the rights of individuals and the power of government. We must not allow our fundamental liberties to be chipped away in this manner, and if the Police wish to exercise an extraordinary right – to come armed into your family home, and turn it upside down (often both emotionally and physically !), go through your private belongings – well then, they must be held to an extraordinarily high standard of behaviour, including the fair transparency required by the production of the warrant to the homeowner as an absolute condition before a legal search can go ahead.

As a former Prime Minister of this country, William Pitt the Elder, said in 1760 –

“The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail, its roof may shake, the wind may blow through it. The rain may enter. The storms may enter. But the King of the England may not enter. All his forces dare not cross the threshold of the ruined tenement.”

Long may the law continue to uphold these admirable sentiments, in their modern context, and I am sure Mr Pitt would be the first to cheer the safeguards and protections to all of our ‘cottages and castles’ built into the Police and Criminal Evidence Act.

(All names in this blog have been changed apart from the name of an Eighteenth Century Prime Minster)

 

The Price of Justice

I was pleased to be given the opportunity to speak on Channel 5 last week regarding the case of my client Ivan Martin in the documentary series “Where there’s blame, there’s a claim”.

I think it was understandable that the programme concentrated on the level of damages awarded to Ivan, and the other victims of serious personal injury claims (including the horrific Alton Towers roller coaster crash) who were featured in the episode, as obviously there is widespread interest in the amount of money people can recover in such cases, but I would like to take this opportunity to stress that pounds & pence are far from being the be- all and end- all in these claims, particularly in actions against the police which I handle, as opposed to negligently caused accidents. The victims of police misconduct have very often suffered not as a result of an unintended ‘mistake’ (no matter how catastrophic) but rather quite deliberate conduct – such as the misuse of police powers of arrest or a deliberate assault (in Ivan’s case, being shot in the back with a taser gun in his own home) and have then seen this wrong against them compounded by the officers involved – often as a team or institutionally – trying to deny my client justice by telling quite deliberate lies about their conduct,  lies which if believed might result in a criminal conviction and even incarceration – such as the threat Ivan faced when, after being shot by the Officers who came to his home, he was then prosecuted for allegedly assaulting them!

The victims of car crashes or other accidents will first go to hospital to receive treatment, before commencing their fight for compensation, which may or may not be straight forward. My clients will frequently first – after their visit to hospital for injuries inflicted upon them by the Police – have to face prosecution in the Magistrates or even Crown Court on false charges of resisting arrest, obstructing or even assaulting a constable. Only after they have dealt with months of stress and worry, and have cleared their names in the Court, can they bring their own case against the Police in the civil courts.

My clients also often have to go through a lengthy and demoralising process of pursuing a complaint with the relevant Police Force’s professional standards department, resulting most commonly in what feels to many of them distinctly like a ‘whitewash’ of a report – exonerating the investigating officer’s colleagues, and turning blame back onto my client – only to see the same Police Force admit liability/ speedily settle the claim once civil proceedings are commenced, begging the question of the honesty and integrity of the original complaint investigation. Very rare indeed is the apology any Force will offer for the misconduct of its Officers no matter how heinous.

All of this is why I want to stress that whilst compensation in terms of the monetary award of damages is important, the sense of justice being done is always my client’s priority. I think this is in danger of being lost sometimes in media coverage of civil claims which focus only on the amount of “compo”. Indeed, the very title of the Channel 5 series runs the risk of belittling the stories of the deserving people portrayed within it. Yes, we live in a capitalist society where “money makes the world go round” – this is true about everything – jobs, politics, science and medicine – but it does not mean that we only work for money. There is nothing indecent or opportunistic in pursuing a compensation claim after you have been injured or wronged any more than there is in expecting to be paid for the job you do, but in both cases it is about far more than that. We work because we can derive great pride and personal satisfaction from our achievements, irrespective of how much we are paid for them; likewise my clients pursue claims not with pound signs in their eyes, to “grab the money” but for those incalculable but absolutely important things which would otherwise be denied to them – vindication in the eyes of society; self- pride and self- worth; being able to hold to account those invested with special powers over the rest of us, which is absolutely crucial in any liberal democracy; the sense of a wrong being righted and justice being done by the Courts, without which a civil society cannot function, and would run the risk of breaking down into anarchy; to get a fair and proper hearing of their legitimate grievances; to be believed.

This is why I have clients who are prepared to risk exposure to substantial costs in order to pursue a claim where the damages might be only a fraction of that amount – because they are not looking at this ‘claim’ in economic terms but as a matter of principle; they want the feeling of justice won, not money.

This is why another of my clients said these words to me at the conclusion of a very long running and hard- fought case, resulting in a successful outcome at trial after years of stressful litigation –

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

And this is why Ivan Martin, in his Channel 5 interview wanted to make clear what his priority was in pursuing his claim. Getting that sense of fair play; of those to blame being punished, not a claim rewarded. I will leave the last words to him –

If I was in a job and I done something wrong, there would be consequences for me, so why should they get away with it? I know the rules, they know the regulations, we both should be singing off the same hymn sheet. They do something wrong, consequences for them, end of.

NEW CRIMINAL OFFENCE;SHOPPING WHILST BLACK

Iain Gould solicitorBy Iain Gould, solicitor

I have just concluded two cases that were due for trial this month.  In both cases, my clients had been arrested in similar circumstances whilst seeking to establish their ‘consumer rights’

In both cases, each  police force had robustly denied liability forcing my clients to issue court proceedings and press for trial.  Only on the eve of  trial was settlement agreed a five-figure award of compensation plus legal costs in both cases.  Of significance,  both clients are black men.

Arrested for complaining about a pair of shoes?

My first client Mr M had recently purchased a pair of trainers from a well-known national Sports Shop chain which transpired to be faulty.  Along with his wife, he returned to the store with the trainers, the original box and receipt, hoping to receive a refund or credit note.

Mr M spoke to an assistant and then the manager.  The manager  refused to provide a refund or credit note. He advised my client that the trainers could only be returned if they had not been worn or if they had a manufacturing fault. Mr M  was of the opinion that if that was the policy adopted by the Store then such was plainly unlawful, and he forthrightly told the manager ‘That’s BS’.

Mr M and the manager argued about consumer rights and the Sale of Goods Act. My client said the shoes should be returned to the manufacturers.

Mr M was told to leave the store. He refused to do so unless a refund was given.  My client was warned in terms that the store’s security staff would be called.

Two security guards then attended. They asked Mr M to explain his position, which he did calmly. The guards refused to intervene.

Mr M returned to the counter and told the manager  that he would not leave the store until a refund or credit note was proffered.

The manager responded, ‘I’m not talking to you any more, I’m not interested. That’s it’. The Police were called.

Two police officers of West Midlands Police then attended the store. They were PC K and PC A.  They spoke to the manager who told them that he didn’t wish to make any complaint against Mr M. Rather, he just wanted Mr M to leave the store.

Mr M spoke to PC K and explained his position. Whilst he did so, three other officers attended the store.

PC K pointed out to Mr M that this was a civil dispute and that Mr M would have to take it to Court. Mr M advised PC K that to go to Court for a dispute over trainers costing £40.00 would be impractical.

Exasperated,  my client then decided to leave the store and said to his wife, ‘Forget it, love, let’s go’. As Mr M proceeded to walk away, PC K obstructed his path, put his hand up and pushed my client who immediately stepped back and asked why the officer had assaulted him.

PC K then told Mr M that the police required his details so as to effect an arrest.  At this, PC K sought to seize hold of Mr M’s arm. Mr M pulled his arm up so that the officer could not restrain him. A second officer then sought to intervene. Both officers then pushed  Mr M up against a glass counter. PC K said, ‘Take him to the floor’.

Mr M shouted in response, ‘Get the fuck off me’. Mr M was held, pinned down by the two officers using their body weight, across the counter. CCTV footage of the incident showed the  two officers pushing Mr M against the counter.

Mr M was then pulled away and, as a result of the officers’ continuing use of force upon him, felt his legs go from underneath him. He fell to the floor face down with his arms underneath him. Various officers sat astride him, holding him down.

One officer, whom Mr M believes to have been PC K, was shouting, ‘Release your arms’ but Mr M was unable to do so because of the weight/pressure of the other officers, which they continued to use against him.

The other officers began to get off Mr M and simultaneously PC K punched Mr M as hard as he could’ (as he later admitted) to the right shoulder. Mr M was able to release his arm from under himself whereupon his arms were seized and he was handcuffed to the rear by PC A.

Whilst being handcuffed, PC K pushed  my client’s face down onto the floor, which caused  an injury to the right side of Mr M’s forehead.

Other officers assisted Mr M to get to his feet. Mr M was then escorted from the store to a nearby police vehicle and thereafter transported to Sutton Coldfield police station.

The custody record in respect of the ‘Circumstances of Arrest’ indicated;

‘Officers were called to a report of a male and female acting aggressively within the store. Upon arrival at the store, spoke to the store manager who stated that he had been approached by the person in custody in the store who was making a complaint about a pair of trainers. he explained to the person in custody that it was not a manufacturing fault with the item. he claimed the person in custody became verbally aggressive towards him and he felt threatened by his manner. He was happy for matter to be dealt with by prop crime recording. Spoke to person in custody, tried to ascertain his details to carry this out. However he became agitated and tried to walk past me and refused his details. I put hand up in front to prevent him from leaving and then he accused me of assaulting him and refused details. Arrested for section 5 public order for original matter. became rigid and obstructive and refused to comply. Was taken to floor by the counter and struck twice with closed fist on back’.

Mr M was taken to a cell and sometime later also arrested for resisting a constable.   Again, the Custody Record recorded the circumstances of arrest: “During the original arrest, the person in custody became violent and had to be restrained by force”.

Mr M was later interviewed in which he gave a detailed account, denying any criminal behaviour.  Towards the conclusion of the interview, the interviewing officer explained to Mr M  that instead of arresting him, the matter could have been dealt with by an apology, that is why officers were trying to obtain his details.

After a lengthy period of detention, Mr M was released on bail. Upon answering bail several weeks later,  my client was charged as follows;

Words/behaviour-harassment alarm distress; used threatening abusive or insulting words or behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby Contrary to section 5(1) and (6) of the Public Order Act 1986.

 And

Resisting or obstructing a constable contrary to Section 89(2) of the Police Act 1996.

 Mr M later attended Court as required and pleaded a not guilty.  Some 4 months later, Mr M attended Court for the trial.

At the trial, PC K  gave evidence on oath against Mr M to the effect that;

(a)  Mr M had, when asked for his name and address told PC K to ‘fuck off’;

(b)  PC K had given to Mr M a reason for the arrest and for its necessity;

(c)  PC K informed Mr M about resolving the issue by ‘Local Resolution’.

Following evidence, the Magistrates retired to consider the issues. After consideration, Mr M was acquitted.

Shortly after his arrest, Mr M lodged a complaint.  By reason of sub judice, the Police refused to investigate  his complaint until he conclusion of criminal proceedings.    As is so often  the case , the complaint was the subject of  what was in my opinion a poor and lack luster investigation, the conclusion of which was that no officer was culpable of misconduct.

My client did not realise that he could take a civil action against the Police for his arrest and prosecution until several years later following telephone contact.  I agreed to represent him and brought proceedings just in time.

At the time of the incident, Mr M had been employed as a security guard. This brought him into frequent and respectful contact with the Police and made him aware at all times of the need to act reasonably and within the law.

Notwithstanding the passage of time, Mr M had good recall of the incident and presented as a calm and reliable witness and his wife.  Notwithstanding the very different factual accounts of the incident provided by the Police Officers,  I felt that my client’s account was more likely to be believed than the officers.

Irrespective of the different factual accounts, what struck me was that ultimately  this was a dispute over a £40 pair of trainers and the actions of the Police were wholly disproportionate to that dispute.  Quite simply they had made a mountain out of a  molehill.

White Staff Member, Black Customer, Guess Who Gets Arrested?

This suggestion of excessive use of power/force was also evident in the case of my second client, Mr Mc.

Mr Mc had recently purchased a car wax product for £15.00 which he considered to be of poor quality.  He  attended the store and spoke with the manager and asked to exchange his purchase The manager told Mr Mc that the store policy did not allow an exchange once a product had been opened.

Mr Mc had read up on his consumer rights and was of the opinion that he had a statutory right to take another product of equal value to that which he had purchased.  Mr Mc selected another car wax and proceeded to walk out of the store. He left his receipt and the item he had previously purchased on the counter.

The manager informed Mr Mc that he would call the police.  My client replied that he should call the police. Mr Mc was no abusive to the manager at any stage.

After 1 or 2 minutes, Mr Mc returned to the store.  He anticipated that the police would be able to resolve the dispute and decided to await their arrival.

When Mr Mc re-entered the store, the manager was on the phone.  Mr Mc asked the manager , “is that the police?” which the manager eventually confirmed.  Mr Mc told the manager that he would await the arrival of the police.

While Mr Mc was waiting at the till area for the police to arrive, he saw the manager dispose of a piece of paper in the bin under the counter.  Mr Mc asked the manager if the paper was his original receipt, which the manager denied.

Mr Mc was concerned that the receipt was his only proof that he had previously purchased the item from the store. Without his receipt, he would not be able to prove to the police that he was entitled to an exchange.

Mr Mc asked the manager where the original receipt was.  The manager replied that he did not know. In the circumstances, my client walked around the till area and began searching through the bin for his receipt.

The manager did not ask Mr Mc to step away.  He remained with my client behind the till before walking away and leaving Mr Mc searching the bin.

Mr Mc then moved from behind  the till area to the side of the counter.  He was joined  by the manager.  At this point,  Mr Mc had noticed the original receipt  inside the purchase bag which had been moved to the side of the counter.

PC H of the Metropolitan Police arrived at the shop at this time. PC H immediately walked directly towards Mr Mc at a brisk pace.  As he did this, he said “Right, you’re under arrest, put your hands together”.

Mr Mc was perplexed at this.  He immediately presented his hands above his head, palms facing outwards in a stance of ‘surrender’.  Mr Mc asked the officer why he was being arrested.

In response, PC H pushed Mr Mc backwards.  With handcuffs in his hand, PC H grabbed hold of Mr Mc’s arms and hands and attempted to handcuff him.

Mr Mc was forced backwards  against the wall.  He still had his hands up by his sides in a non-threatening, passive stance.  Mr Mc did not know the reason or grounds upon which he was being arrested.  He repeatedly asked PC H to tell him why he was being arrested.

PC H said, “Stop resisting, put your hands together and bend down on the floor”. PC H restrained Mr Mc by holding his arms.

PC H refused to explain the grounds or reason why he was detaining and/or arresting my client.

At this point, PC H suddenly drew out his baton.  Mr Mc asked PC H why he had deployed this weapon and explained that he just wanted to talk with the officer.

Suddenly, PC H then struck Mr Mc with his baton on the lower thigh, just above his knee. At no stage had Mr Mc been violent, aggressive or threatening towards PC H.  There was no reason for this use of force. PC H then struck my client in the same place again with the baton at which point, Mr Mc instinctively struck PC H back with his left hand causing.   Mr Mc did this to defend himself from PC H.

PC H then tackled Mr Mc to the floor and he was restrained  on the ground.

At this point, two other officers entered the shop and assisted with restraining Mr Mc.

Mr Mc was handcuffed and transported to Chiswick police station.

At the police station, Mr Mc was strip searched and placed in a cell.

Mr Mc was later interviewed.  He provided a full account and repeatedly asserted during the interview that PC H would not tell him why he was being arrested, despite repeatedly asking and that he had punched PC H instinctively in self-defence.  Eventually, Mr M was released on bail on condition that he later return to the police station.  Mr Mc was subsequently informed that no further action was to be taken against him.

Once again, Mr Mc lodged a complaint within a few days of his arrest.  Once the Met Police had decided to take no further action against him, the complaint was investigated.  Once again, the complaint was dismissed.  This time, Mr Mc lodged an appeal to the IPCC.  Unfortunately, following what appeared to be to the IPCC upheld the original be a fairly cursory review investigation decision finding that “PC H’s account that he was unable to hold sufficient conversation” with my client when he entered the store was satisfactory and instructed me to act for him.

My client’s only redress now was to bring a civil claim.  Following review, Solicitors acting on behalf of the Met denied liability.  So as to advance the claim, I then issued Court proceedings on behalf of Mr Mc for damages for both false imprisonment and assault and/or battery.

As part of the criminal investigation, some (but not all) of the store’s CCTV footage was secured.  Although there was no sound, the footage verified my client’s account and showed in my opinion unreasonable behaviour by the Police Officer.

The footage showed that upon arrival, PC H  immediately attempted to detain my client with almost no dialogue before PC H attempted to handcuff Mr Mc.  This does not support PC H’s assertion that Mr Mc was aggressive and/or uncooperative.  In fact, the footage showed Mr Mc clearly adopting a submissive gesture with his hands up and palms facing outward.

Once again, the Police Officer’s reaction to a relatively trivial consumer dispute was heavy-handed and completely unnecessary. In both of those case when met with a black man who did not become immediately completely submissive but who tried to set out his version of events in a reasonable manner, the Police Officers involved responded with pure and naked aggression.

It is hard to imagine that the skin colour of my client was not a factor in each case.  We know, for example that black and ethnic  minority people are three times as likely to have taser guns deployed against them by the Police, and by reasonable analogy this presumably applies to other forms of violence as well, for which clear statistics are not so readily available.

At their least both of these matters were minor disputes over in one case a pair of shoes with £40 and in the other a bottle of car wax worth less than that which ended up taking tens of thousands of pounds of tax payer’s money in the time and costs of prosecution, complaint and civil claim and  which could have been diffused and resolved by a few polite words on behalf of the officers included.  Instead the officers jumped to the conclusion and to physical violence almost immediately “seeing red”.

Or should that be “seeing black”?

 

 

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.

 

Choosing the Right Lawyer (Part 1)

This is a guest post by my colleague and fellow specialist in civil actions against the police, John Hagan.

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

When instructing a lawyer to represent you in a claim against the police it is very important that you appoint someone who has the specialist knowledge and breadth of experience necessary to achieve regular success in what can be a complex area of litigation.

There is a certain overlap between claims against the police and general personal injury cases, but I would urge you to beware of putting your case into the hands of a personal injury solicitor, who deals day-to-day with accidental injuries, and who may only be ‘dabbling’ in the area of Actions Against the Police.

Rather, you need a police misconduct claim specialist, and I am pleased to say that I have a 20 year track record of success in these cases.  The experience that this has given me and my specialist team in assessing and analysing police claims means that unlike other lawyers who are less experienced, we do not prevaricate.

If I think you have a good case then I will tell you so, and I will push ahead with the case as swiftly as possible.  Equally if I believe your case will not succeed I will tell you that as early as I can and I will tell you it straight, and I will not allow the limitation period for your claim to be used up by any faint heartedness or hand wringing on my behalf.

I would like to demonstrate these points by reference to two cases which I have recently settled for £20,000 and £15,000 damages respectively.  Both cases involved hard-fought legal battles against West Midlands Police, but I was always confident that we would be successful and was prepared to see both cases through to trial if necessary.   Prior to my involvement, as you shall see, both of my clients had in fact consulted other solicitors who, in my opinion, did not have the relevant experience or knowledge to properly analyse and progress the claims as a result of which both clients suffered from delay, indecision and eventually rejection by their solicitors who – WRONGLY – told them that their claims would not succeed…

The case of Mr EJ

My client EJ is a black man who was stopped by the police in 2011 on suspicion of drink driving.

As EJ exited his car outside his home address he was approached by 7 police officers who questioned him in a hostile and aggressive manner and almost immediately laid hands on him.  EJ attempted to talk to the officers in order to explain his point of view ie that he did not believe he was over the limit (although he accepts that he had had an alcoholic drink) and that he did not believe that he had been driving dangerously.

EJ was a man of good character who worked long hours for the NHS as a mental health care assistant and he was shocked and upset by the immediately hostile attitude of the officers who confronted him.  He was completely outnumbered by the 7 police officers and denied displaying any violence towards them whatsoever – the truth of his account in this regard is surely borne out by the fact he was not charged with any offence of assaulting a police officer and nor did any of the officers involved in his arrest end up with as much as a scratch upon them.

EJ on the other hand suffered far worse than a scratch.  Given that the officers had almost immediately laid hands upon him and had not properly attempted to talk or reason with him, EJ tried to pull away from their grasp in order to avoid being handcuffed.  The officers moved in on my client and although what happened in the next few seconds differs between the accounts of EJ and the police officers, the end result was the same. My client felt a sudden pain in his upper left leg which caused him to scream out in agony, and which felt to him as if someone had kicked him from behind with extreme force.  All of the officers involved in fact denied kicking EJ’s leg, but 6 of them admitted that they had simultaneously laid hands on him (3 men on either side of my client) and had pulled him to the ground.

My client was left lying on the ground face down, with a cut to the right hand side of his face and enormous pain in his upper left leg.  My client’s femur, one of strongest bones in the body, had in fact been broken as he was manhandled to the ground by the police.  As a result of this extremely serious injury my client had to undergo 2 operations and was unable to work, unpaid for the majority of his time off work, for 9 months.  He and his family suffered considerable financial hardship as a result.

My client initially instructed a firm of personal injury solicitors. That firm subsequently went out of business and in March 2013 EJ’s case was transferred to a second firm of personal injury solicitors, who agreed to take his case on a ‘no win no fee basis’.

This second firm subsequently wrote to EJ in October 2013 advising him that, in their opinion, his prospects of succeeding in the claim were less than 50%.

This decision was said to be based on the following factors:-

  • That the incident had been investigated by the West Midlands Police Complaints Department who had found that the officers involved had no case to answer in regards to assault.
  • That it was EJ’s word against the statements of 7 police officers who were all arguing that the use of force against him was reasonable and required in the circumstances.
  • That EJ had been convicted of having been driving whilst over the limit on this occasion.

This was extremely disappointing news for EJ to receive.  The second firm of solicitors did correctly advise EJ that the limitation period for his claim would be the third anniversary of the incident ie September 2014.  If Court proceedings were not issued by that date, then the right to proceed with the claim would effectively be lost as the limitation period in English Law for a claim involving personal injuries is 3 years from the date of the incident.

This meant that EJ now had less than 12 months in which to find a third firm of solicitors, and one willing to act despite the second firm’s rejection of the claim.  Many would be disheartened by being left in such a situation, but fortunately, EJ got in contact with my firm and instructed us to investigate and pursue his claim.

As Police Claims Specialists we soon determined that EJ’s case had merit and we agreed to act on his behalf by way of a ‘no win, no fee’ retainer.

How was it that we were able to come to the CORRECT determination that EJ’s case in fact did have greater than 50% prospects of success, and why were we not dismayed by the same factors that had put the second firm of solicitors off the case?

Police Complaint

The rejection of our client’s police complaint by the West Midlands Police was known by us to be a ‘par for the course’ in that the vast majority of successful claims in which we represent clients start off with disciplinary complaints being rejected, and then go on to result in an award of damages being made to the Claimant.

There is a simple reason for this and it is that the complaint process is not independent but is handled by an Internal Disciplinary Investigation Team within the police force concerned, whereas a civil claim for compensation will go to Court and be heard by an entirely independent judiciary.

Long experience has taught me that the Police Internal Complaints Procedure is not fit for purpose, and that its agenda often seems to be to attempt to brush complaints under the carpet, with police officers, perhaps naturally, inclined to take the side of other police officers (colleagues in the very force with which they serve) and to favour the accounts of officers on almost all occasions over those offered by the victims of police misconduct.

In my opinion therefore, the second firm of solicitors had put far too much weight on the rejection of our client’s complaint by the police.

The number of police witnesses

Over the years I have represented many clients in successful claims where it is their word alone against that of one or more police officers and I know that it is not simply a numbers game of adding up the witnesses on each side.

We carefully assessed EJ’s evidence and concluded, I believe quite rightly, that he would come across as an honest and credible witness.

We carefully analysed the statements of the 7 officers involved and noted that whilst all the officers denied delivering or witnessing any kicks or strikes to our client’s leg, none of them were able to offer any alternative explanation as to how he came to sustain such a severe fracture to his upper leg.  The officers accounts in regards to how EJ came to injure his leg were extremely vague and in certain respects contradictory.  All of the officers denied either striking or holding the Claimant’s leg as he was taken to the floor by the combined efforts of 6 police officers, but could offer no explanation as to the fracture of his leg.  Furthermore, despite the officers accounts of a violent struggle with a muscular and well built individual, none of the officers had sustained any injury whatsoever (as highlighted above).

Two of the officers alleged that EJ was flailing or waving his arms aggressively prior to any attempt being made to handcuff him, but the other 5 officers present did not apparently see this.

One of the officers stated that EJ fell to the ground in an uncontrolled manner, whereas the other officers described our client being lowered to the ground whilst being held by several of them.

Three of the officers described hearing a snapping or popping sound as EJ was being overpowered and before he was lowered to the ground.  The statements of the other 4 officers however did not say anything about this.

I also crossed referenced the officers’ statements with the accounts given by the police to the doctors at the hospital where EJ was transported by ambulance from the scene of the incident.  In those records it states:-

According to police, was being restrained on front, legs crossed behind him and then forced him to flexion at knees.  Then sudden crack/pain”.

I noted that this account was completely contradictory of the accounts given in the police officers statements, none of whom talk about the Claimant’s legs being flexed whilst he was restrained on the ground.

So by utilising my experience of cases of this nature, and by a careful and detailed analysis and comparison of the evidence, I was able to come to the conclusion that simply because it was the word of 7 men against 1 did not mean that the police would be exonerated.

Conviction for drink driving

Of course the fact that EJ was convicted of having been driving on the night of the incident whilst over the legal blood alcohol limit did present a real problem for the case.  I was not proud of my client for having committed this offence, albeit that he had no prior convictions, and he was clearly in the wrong when he committed that offence – however that did not justify the behaviour of the police towards him, and specifically he did not deserve to end up with a severely fractured leg leaving him with permanent pain and scarring as a result of his actions.

The fact of my client’s conviction presented a legal obstacle which it is likely that a solicitor who is not experienced in police misconduct claims, might consider insurmountable.

Section 329 of the Criminal Justice Act 2003 prevents a claim for assault being brought by a person who suffered the assault whilst in the process of being arrested for the commission of an offence for which he was subsequently convicted (in this case drink driving).

The only way this hurdle can be overcome is to demonstrate to the Court that the assault suffered by the injured person was grossly disproportionate or that the police officers carrying out the assault did not believe that it was necessary in order to prevent the commission or continuation of an offence or to apprehend the person who had committed the offence.

Again, drawing on my experience of similar cases where I have had to deal with the obstacle presented by Section 329 of the Criminal Justice Act before my client’s case can proceed to trial, and also by reference to my detailed analysis of the evidence, I was satisfied that there were sufficient grounds for the Court to grant EJ permission to proceed with his claim and to reach a finding that in all the circumstances the police officers acts in causing a fracture to his upper left leg were grossly disproportionate given that:-

  • The offence which he was suspected of having committed had already come to an end.
  • The threat posed by EJ was minimal given that he was not armed with any weapon, he was outnumbered 7-1 by the police officers who were in attendance, and on the evidence of those officers he did not strike or land any blows upon any of them with any part of his body.
  • That none of the officers involved in EJ’s arrest were injured in any way, whereas EJ sustained a fracture necessitating multiple hospital operations and a 9 month absence from work.
  • There was nothing in EJ’s medical history or records as considered by the Orthopaedic expert who I appointed to prepare a report in his case to suggest that EJ was a particularly vulnerable individual who suffered from any medical condition which would have pre disposed him to suffering fractures more easily than any other person in the general population.
  • A leg fracture in the circumstances of this arrest, is a highly unusual injury to be sustained and spoke in itself of disproportionate force being used.  The femur is manifestly one of the longest and strongest bones in the body, and a fracture of the femur, is by common knowledge, an unusual injury to sustain.

Other crucial evidence

In a general personal injury claim there may be only limited classes of documents to obtain, eg hospital records and, if the accident occurred in the course of someone’s employment or at a public place, an accident report form.

In claims against the police numerous documents are generated relating to the arrest of the individual client and the actions of the police officers both before and after the arrest, in the form of computer logs, audio recordings, Custody Suite CCTV footage, interview tapes, police officer notebooks and statements, force medical examiner records etc.

Again, having a solicitor with the appropriate experience to identify all the different categories of document that should be produced by the police in a case such as this, and making sure that none have been overlooked (or deliberately withheld) is crucial.

I sought and obtained from the Defendant disclosure of the Association of Chief Police Officer’s ‘Use of Force’ manual which was the training manual used by West Midlands Police in regards to ‘take down’ techniques at the time of the incident in 2011.  This helped to demonstrate, that in my opinion, if a proper technique had been used it is likely that EJ’s leg would not have been fractured.

I also obtained the police radio log which showed that only 3 minutes had passed between officers first arriving at the scene and EJ being reported as on the floor with a broken leg.  3 minutes does not seem a very long time for the officers to have exhausted all avenues of resolution eg talking/reasoning with EJ – before resorting to violence in a situation in which the crime for which EJ was suspected was not itself one of violence, and nor had EJ assaulted any of the officers present.  In other words, was it necessary for the officers to handcuff/lay hands upon EJ at all?  Again I know from long experience that officers are trained to resolve conflict situation first by none violent methods of communication and negotiation with a suspect unless they are truly threatened with immediate danger which simply could not have been the case here.

I felt that this was another strong factor in my client’s case and gave me the confidence to assure him that we would see his case through to trial if necessary.

The progress of the Court proceedings

As stated above, my firm was instructed by EJ in October 2013 after his other solicitors had rejected his case.

After analysing the second firm’s file of papers we formally agreed to act on EJ’s behalf in December 2013 and set about gathering further evidence from the police.

We sent a formal letter of claim to the Chief Constable of West Midlands Police on behalf of EJ in May 2014.

In August 2014 West Midlands Police replied denying that any police officer had kicked EJ and requesting disclosure of EJ’s medical records in order for the case to be further investigated between the parties.  There was no admission of liability.

Owing to the approach of the limitation date (September 2014) my firm then issued a Claim Form in the County Court Money Claims Centre to protect EJ’s right to proceed with the case.

Medical evidence was obtained from an Orthopaedic Consultant in regards to EJ’s leg fracture in October 2014.

With the Defendant still having failed to admit liability, despite disclosure of the Claimant’s medical records we accordingly served the Court proceedings, along with the Orthopaedic expert’s report in December 2014.

A Defence was then served by the police in January 2015 in which all liability for EJ’s injury was denied and in which the Defendant stated that EJ should not be allowed to continue with the claim on the basis of Section 329 of the Criminal Justice Act (as discussed above).

Accordingly we had to issue an application to satisfy the Court that permission to proceed with the claim for assault against the police should continue, notwithstanding EJ’s conviction, and I am pleased to confirm that this was granted by the Court in April 2015.

Thereafter the case proceeded over the following months with the normal steps of exchange of documentary evidence, witness statements and questions to the medical expert with the police continuing to completely deny liability.

On a number of occasions we invited the police to attend a Joint Settlement Meeting with us to attempt to narrow the issues between the parties and secure an out of Court settlement, thereby saving legal costs for all concerned, but this was rejected.

Eventually, the case was listed for a 5 day trial to take place in October 2016.

Then in June 2016 the police put forwards an offer to my client to ‘drop hands’, ie that he discontinue his claim on the basis of no order as to costs.  In effect all that was being offered was that my client would be allowed to walk away from the case as if he had lost, without getting any damages but without having to pay any legal costs to the Defendant.

With my support my client quite rightly rejected this offer.  I identified the fact that the offer had been made as the first chink in the Defendant’s armour.

Indeed, in July 2016 the Defendant then made an offer to settle my client’s claim for a payment of damages but only in the sum of £3,000.

I advised my client that this was a very low offer in view of the extremely serious nature of the fracture he had sustained to his leg and the permanent damage it had caused to him, even taking into account the litigation risks of him not winning at trial.

Once again with my support therefore, EJ rejected the Defendant’s offer.

We however put forwards a counter offer in August 2016 to settle EJ’s claim for the sum of £20,000 damages.

We then continued to prepare the case for trial and were only a few weeks away from the trial when at the very end of September 2016 the Defendant accepted our offer and agreed to pay EJ £20,000 in compensation for the injuries which he suffered.

It had been a long hard fight over the course of no less than 5 years for my client to achieve justice, but working together with the right firm of solicitors he was able to do so.

Specialist Knowledge

Confidence and perseverance are required to see a challenging case such as EJ’s through to successful conclusion.

I am glad that he came to me before it was too late, and that he was not put off by the unduly pessimistic advice he received from his former solicitors who in my opinion did not have the requisite experience to realise that they had a winning case on their hands.

EJ now has 20,000 reasons to tell his former solicitors why they were wrong!

Calculating Compensation in a Claim Against the Police: A lesson in Damages.

Iain Gould solicitorI have previously blogged on the cases of Chris and Claire, both involving serious police misconduct in very different circumstances.

Chris brought a claim for assault against West Midlands Police having been injured by a Police Officer slamming his shield against his head.

Claire brought a claim for misfeasance in Public Office against West Mercia Police having been the victim of sexual exploitation by a Police Officer.

At an early stage in both cases, liability was admitted and an offer of settlement was made.

Notwithstanding the admission and offer, ultimately it proved necessary to issue Court proceedings and against the Police.  Why?

In both cases, the Defendant Police Force refused to put forward realistic offers of settlement and in the circumstances, it was necessary to issue proceedings so as to bring the respective forces to the negotiating table with the threat of a trial.

So how do we go about valuing such cases which at face value are so different?

Basic Principals

There are three types of damages available to victims of Police Misconduct; Basic, Aggravated and Exemplary.

  • Basic damages

Basic damages are designed to provide basic compensation for the loss and injury suffered as a result of the incident. They encompass:

a. pain, suffering and loss of amenity resulting from the wrongdoing (essentially the physical and psychological injuries inflicted);

b. any identifiable financial losses, for example loss of earnings, medical expenses, etc.

  • Aggravated damages

Aggravated damages are awarded at the Court’s discretion in addition to basic damages in exceptional cases where;

  • The Police have acted to aggravate the basic loss by causing injury to feelings, for example by insulting, humiliating, degrading, distressing and/or outraging the Claimant: and
  • It could result in the Claimant not receiving sufficient compensation for the injuries suffered if the award was restricted to a basic award only.

Accordingly, aggravated damages are usually only awarded in serious claims of wrongdoing.

The Court have given guidelines on the circumstances which might justify an award of aggravated damages including;

i. humiliating circumstances at the time of the incident: or

ii. any conduct of those responsible which shows they have behaved in a high-handed, insulting, malicious or oppressive manner.

iii aggravating features can also include the way litigation and trial are conducted.

Other factors which might found a claim for aggravated damages include;

a. if the conduct took place in public;

b. a lack of apology from the Police;

c. if the Claimant was physically or verbally abused;

d. if the Police were motivated by prejudice;

e. if the Police attempted to obstruct the investigation of a complaint by the Claimant;

f. any other feature of the Police’s conduct throughout the case.

Aggravated damages start at around £1,680 and go up to a maximum of about twice the award for basic damages according to the lead case of Thompson and Hsu v The Commissioner of Police of the Metropolis.

  • Exemplary damages

An award of exemplary damages is even more exceptional than an award of aggravated damages, as the object of exemplary damages is to punish the Police rather than to compensate the Claimant.

Exemplary damages can only be awarded if the Police’s wrongdoing constituted oppressive, arbitrary and/or unconstitutional action.

Exemplary damages will not normally be awarded at less than £8,400 according to the guidelines set out in the case of Thompson and Hsu.

Chris’ case

I have previously provided a full description of Chris’ case in my blog. (Read it here.)

As a result of the Police Officer’s actions in smashing his shield against Chris’s head, Chris suffered injuries as follows;

  • A superficial laceration of several centimetres to his right temple that required closure with surgical glue that was tender/painful for 6 weeks and which left a small indented scar that was only visible on close inspection.
  • Headaches for several months, initially as a consequence of the direct blow to the right side of the head and subsequently as a result of the tension caused by the stress of the complaint process.
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.

By the time I was instructed, Chris had made a full recovery from his injuries.  Although he had immediately attended the hospital following the incident, he had not sought any further medical treatment.

In addition, Chris’ jacket had ripped in the melee, he missed some time off work and he had incurred some normal expenses.  All in all, his additional losses totalled £250.

  • Basic Damages

Notwithstanding the violent nature of the assault and how serious his injuries could have been,  Chris’ injuries were relatively modest.

So as to value Chris’ claim for Basic Damages, I referred to the Judicial College Guidelines which provide appropriate brackets for awards of damage for personal injury.  Of relevance was the guideline for “trivial scarring” (£1225 – £2250) and “minor brain or head injury – headaches” (£1575 – £9100).  I valued Chris’ claim for personal injury to be worth in the region of £3500.  Together with his claim for additional losses (£250), I therefore valued his claim to be worth £3,750.  So, how did Chris end up recovering £17,500?

  • Aggravated Damages

I was satisfied that this was a clear case where aggravated damages should be awarded, particularly in light of the relatively low award of basic damages Chris would receive for personal injuries (which as I have stated above,  were surprisingly minor notwithstanding the officer’s violent attack).

Why?

Sergeant A attacked Chris with his shield which he used as a weapon, specifically he turned his shield and hit Chris with the edge of his shield, a technique known as ‘blading’.  This is a technique taught in public order training specifically to be used only when encountering serious levels of violence or to quote West Midlands Police’s own complaint investigation report, “as a last resort”.

Further Chris was struck to his head (on what West Midlands Police describe as the “final target area”) and his injuries could have been so much more serious.

The incident occurred in full public view and could in fact have caused a far bigger public disturbance because both Chris and a number of his friends were angry and began to remonstrate with Police Sergeant A and other officers.

The officer’s conduct amounted to a gratuitous attack; it was deliberate rather than accidental.

The officer (and several of his colleagues) told lies about Chris’ behaviour, stating that Chris was abusive, aggressive and threatening.

Yet further, the conduct of Police Sergeant A was condoned by his supervising Inspector who stated that “from the start of the police operations, officers had been instructed to be robust but fair in their policing style and he believed that Police Sergeant A had performed his role in exactly the manner in which he expected”.

Furthermore, an additional aggravating feature of the case was in my opinion the Defendant’s Professional Standards Department deliberately failing to investigate Chris’ complaint adequately and objectively and perversely concluding that the actions of Police Sergeant A were lawful, necessary and proportionate.  Such a failure and conclusion upset Chris and exacerbated his legitimate sense of grievance.  The Defendant’s response to his complaint was designed to improperly shield (sadly no pun intended) Police Sergeant A from a finding of misconduct or other legitimate criticism.

Overall, I felt that the Court would award aggravated damages around twice the amount of basic damages ie something in the region of £7,500.

  • Exemplary Damages

Somewhat exceptionally, there were a number of features of this case that I considered made it an appropriate case for an award of exemplary damages.

On Chris’ account and that of Sergeant X (the Officer who lodged a separate complaint against the offender Sergeant A), Sergeant A had deliberately attacked Chris.  Notwithstanding that the officer was in no danger throughout the incident and therefore the force used was excessive and disproportionate.  Such action was clearly oppressive and arbitrary.

Furthermore, there was in my opinion a real prospect that Chris would establish at trial that the complaint process overseen by an Inspector was in reality a cover up.

By this stage, I had assessed Basic and Aggravated Damages combined to be worth in the region of £11,500.

I was of the opinion that the Court would consider this to be inadequate compensation for what Chris had been through and award exemplary damages in the region of £8,500.

Conclusion

I considered Chris was likely to recover approximately £3,750 in basic damages, £7,500 in aggravated damages and £8,500 in exemplary damages, ie a total of £20,000.

At an early stage of the case and without sight of any medical evidence, West Midlands Police offered £750 settlement.  On my advice, Chris rejected this offer.  After medical evidence was commissioned and full details of his claim presented, West Midlands Police offered £3,000 maintaining that his “needs are more than adequately met by a basic award”.  Notwithstanding West Midlands Police’s admission of liability, there was still a significant dispute as regards Chris’ demeanour at the time (according to West Midlands Police, “argumentative”, “abusive” and “argumentative”), and whether the complaint investigation had been pursued improperly and/or inadequately and whether the decision of the Professional Standard’s Department as regards the complaint was perverse, as I argued, or simply “within a range of reasonable conclusions arising from the material available”.

Allowing for litigation risk, I advised Chris to put forward a counter offer of £15,000.  16 months later and just 1 month before the trial window, the Defendant (in my opinion to avoid embarrassment of its officers at trial and a storm of adverse publicity), put forward a revised offer of £17,500.  Allowing for (significant) litigation risks, I had no hesitation in advising my client to accept.

Claire’s case

Claire was the unfortunate victim of sexual exploitation by PC Jordan Powell.  I have blogged about her case previously which you can find here.

As a result of PC Powell’s exploitation, Claire suffered psychological injuries specifically;

i) Immediately following the incident, she experienced disturbed appetite, disturbed sleep, low mood and a degree of weight loss.  She also lost confidence, which affected her self-esteem.

ii) Further, she felt “dirty”, “used” and “stupid” and as though she had done something wrong.  She felt that PC Powell abused her trust.

iii) Claire’s view of the police was also affected by the incident and she experienced negative thoughts towards the police.

In the circumstances, I felt it appropriate to commission a report from a Psychiatrist.  Following examination, the Psychiatrist concluded that; Despite the abuse Claire had suffered at the hands of her ex-husband, there was no evidence of significant psychiatric history.  However following the relationship with PC Powell, Claire had experienced marked psychological disturbance.

Prior to the expert’s assessment, Claire had received numerous counselling sessions for between six and nine months which she found to be helpful and beneficial.

The expert found that Claire was not experiencing any symptoms of acute mental disorder at the time of his assessment but that she had experienced some degree of psychological disturbance directly related to the incident with PC Powell, which led to issues that required addressing in formal therapy.  The expert opined that Claire experienced features of an Adjustment Disorder, with predominant disturbance of other emotions.  Although these acute symptoms resolved around two months after the end of the relationship with PC Powell, Claire had continued to express negative thoughts towards men and the police, which had been exacerbated by the incident, and continued to experience problems with confidence and self-esteem, although she was coping well and her capacity to work, care for her children and carry out activities of daily living had not been affected.

In respect of prognosis, the expert concluded that  it would be favourable if Claire received a further course of therapy, specifically Cognitive Behavioural Therapy (“CBT”) to fully treat her residual symptoms.  The expert was of the view that Claire should make a full recovery within four months of commencing treatment.

Claire subsequently underwent nine sessions of CBT.  In the discharge report, the CBT therapist confirmed that Claire had engaged well with treatment and she had  achieved a full recovery.

Basic Damages

Once again, I referred to the Judicial College Guidelines. According to the Guidelines, there are a number of factors to be taken into account in assessing psychiatric claims, namely: the injured person’s ability to cope with life and work; the effect on relationships with family, friends and those with whom they come into contact; the extent to which treatment would be successful; future vulnerability; prognosis; and whether medical help has been sought.  In respect of claims relating to sexual and physical abuse, the fact of an abuse of trust is relevant to the award of damages.

The Guidelines provided that for minor injury, the appropriate  psychological bracket was £1290 to £4900.  For the application of this bracket, the level of award would reflect the length of the period of disability and the extent to which daily activities and sleep were affected.

There were a number of features of Claire’s case that were relevant to determining the appropriate level of award; she obviously struggled with a number of symptoms, particularly in the first two months when she displayed symptoms of an Adjustment Disorder and the injury was most acute, and thereafter with the ongoing effects but overall her ability to cope with life and with work was not significantly affected. Further, Claire’s relationships with her family, including her children, and friends were not affected.  However, her relationships with men in general were affected, as was her relationship with the police. Recommended treatment was successful and Claire made a full recovery within 3 years.

I determined that there was a basis for saying that this was a sexual abuse case because, notwithstanding that the sexual contact between Claire and PC Powell could potentially be viewed as ‘consensual’, PC Powell’s abuse of power was a sexual abuse of power, in that he improperly commenced a sexual relationship with Claire.  There was undeniably an abuse of the trust that members of the public ought to have in the police.  It was also relevant to take into account that Claire did not necessarily recognise or acknowledge the abuse of power until just before or shortly after the relationship had come to an end.

Taking all matters into account, I assessed damages for Claire’s personal injury to be worth approximately £4000.  In addition, there was a claim for treatment cost and travel expenses of just under £1,000.  So Claire’s claim for Basic Damages was valued at £5,000 – £8,000.  So, how did she end up with £25,000?

Aggravated Damages

In my opinion, this was again a clear case where aggravated damages should be awarded,  particularly in light of the relatively low award of basic damages Claire would receive for personal injuries (which in some ways reflected the fact that Claire was of strong character and for which she should not be inappropriately penalised).

Why?

PC Powell targeted Claire because of her status as a vulnerable victim of domestic abuse. Further it was relevant that at the time the improper relationship started, Claire was in fear of her ex-husband and had sought the protection of the police.

It was also relevant that the incidents took place in Claire’s private sphere, including exploitation of her personal mobile telephone number, which she had provided to the police for contact in relation to the reports she had made to them, and progressed into her home, where Claire lived with her children, who were also vulnerable by virtue of their age.

The sheer number of messages Claire received and their explicit content was relevant, as was the fact that PC Powell was on duty during the course of much of his contact with Claire and at least on some occasions he was in uniform.

It was also an aggravating feature of the claim that Claire was the one to end the relationship, not PC Powell, which suggests that the relationship would have continued but for Claire’s realisation that the relationship was an abuse of PC Powell’s power.

In the circumstances, I concluded that this was an appropriate case for an award of aggravated damages around  twice the basic award and therefore expected Claire to recover between £8000 and £10,500 in aggravated damages.

Exemplary damages

There were also a number of features of this case that I considered made it an appropriate case for an award of exemplary damages.

While potentially the type of conduct involved in this case could give rise to exemplary damages on its own since an admission of liability for misfeasance in public office necessarily amounted to an admission that the officer acted with malice or bad faith, what really strengthened Claire’s claim for exemplary damages was the fact that PC Powell had abused other victims, which suggested that he was allowed to act with impunity, by his superiors  and further that PC Powell had a previous similar misconduct finding against him from 2008 but was nevertheless still serving, and yet further that rather than setting up a complicated ‘honey trap’ operation West Mercia could and should have contacted Claire much earlier so as to prevent or at least minimize PC Powell’s involvement with her.

This means that not only did PC Powell abuse his power but West Mercia Police knew that there was a risk of him doing so and took no or no appropriate action to prevent PC Powell from serving and/or protecting women to whom he posed a risk.  It appears no steps whatsoever, beyond the bare misconduct finding, which amounted to a ‘slap on the wrist’ had been taken to ensure that PC Powell would be prevented from abusing his powers and causing harm to vulnerable women.  It beggars belief that PC Powell was permitted not only continuing as a serving police officer but was specifically allowed to deal with vulnerable victims of domestic abuse on his own, taking into account his history.

In the circumstances, I concluded that despite the exceptional nature of the award, there was a real prospect that a Court would award exemplary damages to reflect the clear abuse of PC Powell’s power and the failure by West Mercia Police to prevent PC Powell from abusing his powers, in spite of his known history, and furthermore for the length of time it took for PC Powell to be investigated and thereafter convicted, which necessarily caused further distress to Claire. I felt that Claire could well recover exemplary damages of around £10,000.

Conclusions

I considered Claire was likely to recover between £4000 and £7000 in basic damages/damages for personal injury, £1000 in special damages. £10,500 in aggravated damages and around £10,000 in exemplary damages, i.e. a total of £25,500 – £28,500.

Settlement

At an early stage of the case and without sight of any medical evidence, West Mercia Police offered £3,000 in settlement.  On my advice, Claire rejected this offer.  After medical evidence was commissioned and full details of her claim were presented, West Mercia Police failed to  respond.  In the circumstances, I issued court proceedings. West Mercia Police instructed external solicitors and over several months, further offers of settlement were made (and rejected) – £9000 and £15000 – until eventually I was able to successfully negotiate a settlement of £25,000.

Both Claire and I were incredibly frustrated by the drawn out process that West Mercia Police forced us to adopt, in Claire’s words “rubbing salt in the wound”, but ultimately delighted with the settlement.   I am really pleased that having achieved justice in what she described to me as a ‘David & Goliath’ situation she is now able to move on with her life.

Calculating Compensation

As can be seen from the above, calculating compensation in a claim against the police is not straightforward, and could be a minefield for a person who does not have the advice of a specialist police claims lawyer.

Awards of ‘basic’ damages are often modest in cases of police misconduct if the physical injuries inflicted are not severe, notwithstanding the reprehensible nature of the wrongdoing, and therefore it is essential that the tools of the civil law, in the form of an injured person’s right to ‘aggravated’ and ‘exemplary’ damages are fully utilised to achieve a fair and just amount of compensation.

After all, an injury suffered ‘accidentally’ is not the same as one deliberately inflicted through police assault, abuse, false imprisonment or other form of misconduct.

As the conduct of both West Midlands and West Mercia police show in the cases of Chris and Claire, the police will normally start by offering a low award of ‘basic’ damages only to try to buy the case off cheaply, and the advice and assistance of an experienced practitioner in this area of law, such as myself, is essential to understand how to obtain aggravated and exemplary awards, and properly hold the police to account for their wrongdoing.

Contact me for help with your civil actions against the police compensation claim by completing the online 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.

 

 

 

 

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.

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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 or my firm’s website.

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R-E-S-P-E-C-T

Photo of Iain Gould solicitor, explains his respect for people who bring actions against the police.
Iain Gould solicitor, explains his respect for people who bring actions against the police.

By Iain Gould, solicitor

I have a tremendous amount of respect for people who to take actions against the police.

Their fight for justice can be a hard, long, and stressful process. Why? Because they have to:

  1. know enough about the law and police procedure to determine if they have a valid complaint and/or potential claim
  2. be mentally strong enough to take action against the police
  3. be determined to find a suitably qualified solicitor they can trust, given the considerable financial risk of litigation.

People often get help with the first part. Duty solicitors at police stations, family and friends, research on the internet, can all help identify wrongs. But the rest is down to the individual.

How matters progress often depends on their past experiences. Many of my clients have never been in trouble with the police and often still trust them, despite what happened.

As a result, they (perhaps naively) think that the police complaint process is fair and impartial. This view is not unusual. Research commissioned by the Independent Police Complaints Commission (“IPCC”) found that:

“those that had the least amount of contact had much higher expectations of police behaviour and were therefore more willing to complain about a range of potential misconduct.”

Sadly, trust in the police complaints process is often misguided. Often, only when it fails do we find out if the person involved is truly determined to seek justice. One such person was my client, Mr R (name withheld at his request), from London. His story shows why I have such respect for people who brings actions against the police.

Racial Abuse Arrest

On 26th February 2014 my client, a professional, middle-aged white man got into an argument with a black woman after parking his car on the narrow street in front of his home. The woman verbally abused him for blocking the path of an oncoming car while he adjusted his road-side wing mirror to stop it from being damaged. He responded by telling her to park her own car behind his to let the traffic pass. Their exchange involved the use of coarse language and ended when the woman took photographs of his car and said that she was going to report Mr R to the police for racial abuse. She told Mr R that, even though she knew he had not racially abused her, she was confident the police would take her seriously, and not “some fat, angry, white guy”.

More than 3 weeks later, on 20th March 2014 at 9:30am, Mr R was shocked when 11 Metropolitan Police officers turned up at his home.

An officer told my client that he was under arrest for using “racially aggravated threatening words and behaviour” following the incident on 26th February.

Mr R vehemently denied that he had been racially abusive. The police refused to listen and told Mr R that they were taking him to his local police station. He was not allowed to shower but was allowed to dress under close supervision of an officer. During this process, one of the officers flippantly said to my client “Your taxi is waiting, the meter is running”.

Mr R was “booked in” before the Custody Sergeant. The circumstances of his arrest were recorded as “Officers investigating an allegation of road rage have cause to believe this male is involved.  Allegation of racially aggrieved (sic) Sect 4 POA.  Arrested to interview, prevent harm.”

The reason for arrest was recorded as “to allow the prompt and effective investigation of the offence or of the conduct of the detained person”. My client was searched and his personal possessions removed.

He requested pre-interview disclosure information. The Custody Sergeant refused, saying, “We don’t, not to people like you”.

Mr R asked for the Duty Solicitor. He was then photographed, his fingerprints and DNA sample taken, and locked in a police cell.

The Duty Solicitor and officer in charge saw Mr R at approximately 11am.  The Duty Solicitor told my client that he had also not been given any pre-interview disclosure information and that he had been advised that the alleged victim, the foul-mouthed woman, had not even been interviewed. Given that the police appeared not to have crucial evidence Mr R immediately asked how they could justify his arrest.  The officer in charge realised they were on shaky ground on this point and tried to dismiss it, saying that he was about to interview the alleged victim at 12pm.

After several hours of detention, an Inspector visited Mr R in his cell for his custody review.  He told Mr R that “I have authorised your further detention”.  My client immediately challenged the officer, saying that he had pre-judged the further detention without hearing from Mr R or his solicitor.

The Inspector agreed to investigate and authorised my client’s release. At 4pm Mr R was released on police bail and told to return to the Police Station on 9th April.

Police Complaint Farce

Readers will be in no doubt that Mr R is an intelligent man. He felt aggrieved that:

  • the police could not justify his arrest having failed to obtain the victim’s evidence first, even though the incident occurred over three weeks earlier.
  • they failed to invite him to attend for a voluntary interview, instead sending 11 officers to his home causing Mr R and his family great embarrassment, shock, and distress.
  • he had been mistreated during arrest and at the police station.
  • the police denied his reasonable request for information.
  • they pre-judged his further detention and delayed his release.

In his opinion, he had the legal grounds for a complaint. Mr R is also confident, determined, and articulate. Consequently, he had the first and second traits of people willing to take on the police.

My client lodged a formal complaint within a few days of his arrest which was handled by an Inspector in the same division as the arresting officers. Incensed by his treatment so far, Mr R’s priority was to ensure that he would not be re-arrested when he returned to the police station on 9th April.

The investigating Inspector agreed that Mr R could attend the Police Station on 9th April as a volunteer.  During interview, Mr R established that the so-called “victim” had just been interviewed earlier that day (9th April), despite being told previously that she was going to be interviewed on the same day he was arrested (20th March). The allegation of racial abuse was put to Mr R which he vehemently denied. The case was referred to the CPS for advice and Mr R was informed that his complaint could not be investigated while the police waited for the CPS’s input.

Eventually, on 21st May, Mr R was advised that no further action was to be taken against him.  Mr R understandably felt aggrieved by the actions of the Metropolitan Police and pursued his complaint.

To say he was given the run-around would be an understatement:

  1. His complaint was (wrongly) dealt with internally by the Metropolitan Police, rather than being referred to the IPCC. Mr R described this as “akin to getting Bernard Madoff to investigate customer complaints about his own investment scheme”.
  2. The Inspector who initially investigated the complaint failed to apologise, even though he confirmed that “You were circulated as a suspect on the 05/03/14 to facilitate a prompt and effective investigation and protect a vulnerable person.  On reflection, once the vulnerability passed the decision to arrest could have been reassessed and could possibly have been investigated utilising less intrusive methods”.
  3. Dissatisfied with the response, he appealed. The same Inspector dealt with the appeal. In January 2015 he said: “the investigation process could have been progressed without the requirement for arrest however the arrest itself was not unlawful”. Despite this, Mr R made some progress when the Inspector finally said “I wish to apologise for the distress this incident has caused you and accept our failings in how we progressed this investigation.  To be clear, this investigation did not require your detention in custody to secure your account, nor was it necessary to affect a prompt investigation”.
  4. Mr R was dissatisfied with the apology for “distress” only, and, among other things, with the Metropolitan Police’s failure to admit his unlawful arrest and false imprisonment, or to confirm that they had breached professional standards. He appealed to the IPCC.
  5. In March 2015, a year after the arrest, the IPCC confirmed Mr R’s view that his complaint was not suitable for Local Resolution and should never have been dealt with internally. It also confirmed that the Inspector’s response to the appeal was effectively a re-hash of the initial investigation, and that the matter should be sent back to the Metropolitan Police for a re-investigation.

Instructing an Actions Against the Police Solicitor

By this time, Mr R was despondent. He, like many, was initially reluctant to engage a solicitor. I suspect this was because he felt comfortable dealing with the complaint himself and wanted to avoid issues about legal fees, trust, and confidence in his legal representation.

He found me on Google and got in touch. At this point, the third trait (finding a suitable solicitor) kicked in and we vetted each other.

I was frank with Mr R. I offered no guarantees but, on the strength of his instructions and the documents he provided, I felt he had a viable compensation claim for wrongful arrest and false imprisonment.  I was confident enough to act under a Conditional Fee (“no win no fee”) Agreement, in which I only got paid if he won.

After the IPCC’s criticism the Metropolitan Police Inspector who originally investigated Mr R’s complaint completely changed his tune. He now confirmed in a third report that, in his opinion, “The arrest was unnecessary and therefore unlawful. Your complaint has been upheld”.

Despite this, Mr R remained unhappy with the complaint investigation. On my advice we focussed on his civil claim for compensation. I intimated a claim.

I explained to my client that the Inspector’s opinion was not binding on the police in the civil claim. Unsurprisingly, the Metropolitan Police’s legal department failed to either admit or deny liability suggesting that “the matter could have been investigated utilising less intrusive methods”.  (my emphasis) They put forward an offer of £2,500.

I advised Mr R that this offer was too low in my opinion. I suggested we put forward a counter-offer and, if the police did not accept it or make a reasonable offer, to issue court proceedings. This was not an easy decision for him to make.

It is a common misconception that “no win no fee” agreements also mean “no risk”. In fact, when the Claimant issues court proceedings they are at risk of paying the Defendant’s legal costs if they do not win or beat an offer. Litigation is not cheap and the police instruct expensive lawyers. It is not uncommon to see legal bills in actions against the police for over £50,000.

The decision to issue court proceedings required Mr R to trust my judgement. He knew that I have the necessary skills, expertise, and confidence which come from practising in this area of law for over 20 years. I was also invested in his success because I was risking my firm’s money and time by acting under a “no win no fee” agreement. But irrespective of the level of confidence and trust, there are no guarantees.

After weighing the options Mr R took my advice and authorised me to issue court proceedings.

In response, despite their previous offer and failure to increase before proceedings, the Metropolitan Police put forward a revised offer of £6500.

Better, but not enough.

Mr R authorised me to negotiate further. I eventually settled his claim for £7400, nearly three times more than the first offer, plus legal costs.

Here’s what Mr R said about my service:

“I was happy with every aspect of advice that you gave me, along with the guidance that you offered, I negotiate contracts for a living, and am quite legally aware. However, the threat of issuing proceedings against the Metropolitan Police caused me concern.  Your constant encouragement that everything was ok along with your experience and attention to detail impressed and bolstered my confidence, I was also happy with the result”.

Specialist Legal Help

People often complain direct to the police to get answers, accountability, and sometimes compensation. They do this without legal representation because they trust the police to investigate their complaint in a fair and just manner, without bias.

Instead, what they get is delay, avoidance, and a strong institutional bias against the person bringing the complaint and in favour of the officer(s) involved. They often only seek a solicitor’s help when they have lost all faith in the police complaint system.

In April 2016 there were 134,785 practising solicitors in England and Wales. Search Google for “actions against the police solicitors” and you’ll get 127,000 results. How hard can it be to find a good one to take on the police?

Answer: not so easy. This is because actions against the police solicitors work in a complicated, niche area of law. There are many lawyers out there who specialise in either criminal defence or civil litigation. There are few who cover both and also have the necessary background, skills, and attitude to risk to take on the State.

People have to spend time to find a solicitor they can work with, potentially for years. They have to look beyond the promises made on slick websites and make sure the solicitor is the right one for them.

Mr R knew enough about the law in actions against the police, had the courage to take them on, and the determination to find a specialist solicitor with whom he could work. He has my respect.

 

For help with your civil actions against the police contact me via the online form below or my firm’s website.

Contact Me:

 

 

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

Iain Gould solicitor, explains what you need to know about deletion of records from national police systems.
Iain Gould solicitor, explains what you need to know about deletion of records.

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, Mr M, would confirm.

Mr M (name withheld to preserve anonymity) 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 (Mr M) 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 M’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, Mr M’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 M to attend a police station for voluntary interview a month after the incident.

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

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

Mr M 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.

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

Mr M 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.

Mr M 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 M that he did not have grounds to complain with the Met’s decision to investigate.

But what was objectionable was:

  • the delay; and
  • inviting Mr M 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 M’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, Mr M’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 M’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 Mr M’s claim was entirely justified, despite the Met’s formal denial.

After extensive negotiations, Mr M 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 M 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 M’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 or at www.dpp-law.com.

Contact Me:

 

 

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 or at www.dpp-law.com

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Is Legal Aid Affecting Domestic Violence Reporting?

Iain Gould, solicitor, asks - Is Legal Aid Affecting Domestic Violence Reporting?
Iain Gould, solicitor, asks – 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 Mr X (details withheld 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 X 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 X 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 Mr X, 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 X’s 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 Mr X 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 X 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, Mr X 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 X’s 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, Mr X 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 or at www.dpp-law.com.

Contact Me:

 

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 E T, 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 E T lodged a complaint to the Metropolitan Police. The following description is based on his version of events.

Mr T was driving home from work when he was stopped by a police carrier van. Mr T 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 T’s left arm and a struggle began. Many other police officers from the police van then stormed out and forcibly moved Mr T towards the pavement.

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

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

Mr T 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 Mr T’s car.

Mr T was then transported to a police station. En route, Mr T 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 T was then kept in custody until the next day and after he was interviewed for the alleged offences. Mr T 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 T 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, Mr T 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 T’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.

Mr T 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 T outside the Empress State Building and they went into reception together. Having been frisked by security, Mr T 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 T 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?

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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.

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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.

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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.

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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.

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Is Confirmation Bias Responsible for Police Taser Assaults on Black People?

By Iain Gould, Solicitor

Photo of Iain Gould, solicitor, who discusses reasons for police Taser assaults.
Iain Gould, solicitor, discusses reasons for police Taser assaults.

According to statistics just released by the Home Office to the BBC, 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). Now, we have concrete evidence of their disproportionate use against a certain ethnic group.

But why?

One theory is that the police, like the rest of us, are subject to “confirmation bias” which is defined in Science Daily as the “tendency to search for or interpret information in a way that confirms one’s preconceptions”.

If police officers have the perception that black people are more likely to be involved in criminal behaviour, that they will attempt to evade capture, or forcibly resist arrest, they will consciously or unconsciously seek out proof. Using Tasers during an arrest is just one way of justifying their (unfounded) assumptions.

Photo of Stephon McCalla's back after a police Taser assault.
Stephon McCalla’s back after a police Taser assault.

Taser Assault on Innocent Black Man

An example of police confirmation bias against black people is the case of my client Stephon McCalla (details used with his permission and based on his version of events).

Stephon is a young black man who had never been in trouble with the police. He was walking to his local gym on a sunny day in June 2010 when, unbeknown to him, local police were actively looking for a black suspect who had raped a student at knifepoint.

Mr McCalla was stopped by an officer with a dog who told him that they were looking for someone with his profile.  Stephon gave his name and address and told him he was heading to the gym. The Officer called for backup. Stephon understandably felt uneasy.

10-15 minutes after he had first been stopped, several police vehicles arrived and positioned themselves so as to box Stephon and the dog handler in. Seven white officers alighted. Stephon was extremely alarmed by developments.

Photo showing close up of Taser barb embedded in Stephon McCalla's back after police assault.
Close up of Taser barb embedded in Stephon McCalla’s back after police assault.

Four of the officers approached. At this stage, Stephon had his thumbs in his back pockets with his arms hanging down. One officer told Stephon to “Give me your hands”. Stephon did so and as he did, the officer took hold of his forearm and suddenly said, “He’s going to attack”.

The officer grabbed Stephon’s wrist and tried to force his arm behind his back and handcuff him. Stephon could not believe what was happening and having done nothing wrong and having been given no explanation, resisted.

In response, other officers applied a succession of knee strikes and blows to his body and then five or six punches to his face. Eventually, Stephon felt his leg about to give way and as he began to fall to the ground, he was Tasered to the back. His body shuddered and he fell heavily onto his right shoulder.

Following his arrest, Stephon could see the officers in discussion. They were holding a picture up on a piece of paper. He could see that the picture was of a black man’s face. The officers held it up and were looking at Stephon and looking back at the photograph. One officer said, “We’ve got the wrong man.”

Despite this Stephon was arrested and taken to a local police station. Upon arrival, he still had two of the Taser barbs embedded in his back. A police nurse and Doctor tried to remove the Taser barb from his body but concluded that the barb was embedded so deeply that Stephon would have to attend hospital.

After a short while, Stephon was taken to hospital where with some difficulty, the barb was extracted and stitches applied.

Photo of Taser barbs which were embedded in Stephon McCalla's back.
Taser barbs were embedded in Stephon McCalla’s back.

Mr McCalla was taken back to the police station where he was eventually interviewed.

The police told him that he had been stopped because he bore a strong resemblance to an armed man wanted for a serious offence but that because of how he had reacted, he had been arrested for a public order offence.

Stephon was eventually released on police bail having spent over 14 hours in custody. Several weeks later, he was advised that no further action was to be taken against him.

With my help, Stephon brought a civil action against the police. Liability was robustly denied. Notwithstanding this denial, Stephon’s claim settled for substantial damages plus costs together with an apology following the issue of court proceedings.

Addressing Confirmation Bias

It appears that the police’s confirmation bias that black men like Stephon are dangerous individuals led to this brutal and unjustified Taser assault.

Stephon’s only “crimes” were being black and in the wrong place at the wrong time. His understandable and perfectly reasonable resistance to an unlawful arrest led to the disproportionate use of force, and especially the unnecessary discharge of a Taser when he had already been subdued and was falling to the ground.

The police then showed their true colours by arresting Stephon for a (bogus) public order offence because of how he had reacted, convincing themselves that his conduct was unlawful, and fitting the confirmation bias narrative. (s.5 of the Public Order Act 1986 says that a person is guilty of an offence if he “uses threatening (or abusive) words or behaviour, or disorderly behaviour”.)

In light of today’s BBC report and Mr McCalla’s case it seems to me that the police still have a long way to go to address what Sir William McPherson described as an “institutional racist” organisation in his 1999 report about the Stephen Lawrence inquiry. They need to address confirmation bias as well.

 

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