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.