It is a little-known fact that some actions against the police compensation claims (specifically cases involving claims for false imprisonment and/or malicious prosecution) can be decided by a jury.
The right to trial by jury in such cases was preserved for such claims against the police after it was abolished for most other civil actions in 1933.
Putting such a case before a Jury does not, however, come without complications.
I am currently representing Peter Garrigan who is suing British Transport Police for false imprisonment, assault, misfeasance in public office, and malicious prosecution. Although, there is some limited CCTV footage, Mr. Garrigan’s actions against the police compensation claim essentially rests on his word against two Police Officers. Last week, his case went to trial before a Jury.
On the fourth day, having heard the evidence, the jury of eight retired.
After a long and stressful week in court, Peter hoped for Judgment in his favour in his police compensation claim.
Unfortunately, the jury were unable to reach unanimity.
In the County Court (as in this case) after a reasonable period of deliberation, the Court can accept a majority verdict of 7-1.
In Mr. Garrigan’s case, after several hours, it was clear that the jury were unable to agree to that and, in the circumstances, the Judge ordered a re-trial.
As it now stands, he must ready himself for another week in court sometime in the next year, and I will have to prepare his case for trial yet again.
So why bother having a Jury?
Judicial guidance in police claims
By s.69 of the Supreme Courts Act 1981, a party wishing to claim the right to have their case heard before a jury has to apply for it within 28 days of the service of the Defence.
Should either party fail to make such an application, the case must be tried by a Judge alone unless the Court in its discretion orders trial by jury. As May LJ noted in Times Newspapers Ltd v Armstrong (2006),
‘the discretion is now rarely exercised, reflecting contemporary practice. Contemporary practice has an eye, among other things, to proportionality; the greater predictability of the decision of a professional Judge; and the fact that a Judge gives decisions.’
Reasons to keep jury trials in police abuse claims
Given ‘contemporary practice’, why then encourage (as I routinely do) a victim of police abuse to elect jury trial?
Because an individual’s belief in the rule of law is shaken when they are a victim of wrongdoing by the police.
The police are agents of the state. The courts can be considered the same way, and I often hear scepticism of judicial independence and the need to avoid the ‘involuntary bias towards those of their own rank and dignity’ (Frank Cook v Telegraph Media Group Ltd (2011)).
Some might query whether my faith and confidence in jury trials in cases involving police abuse has been knocked.
My answer is an unequivocal ‘no’.
Having taken many civil actions against the police to trial with a jury, I remain convinced that, win or lose, my clients are far more accepting of a judgment given by their peers rather than by a Judge who may be perceived as solitary, conservative and out of touch.
Certainly, Mr. Garrigan is un-phased and is keen to have his actions against the police case heard again, confident that a new jury will find in his favour.
For all of us, but especially those making actions against the police claims, it is important that this basic right is preserved.
If you have been a victim of police abuse and want to claim compensation, please click here to read more or contact me, Iain Gould, using the online form below, on 0151 933 5525, or via the contact form at dpp-law.com.
Update
I am pleased to confirm that following a 4 day trial before Judge and Jury, British Transport Police were ordered to pay my client £13,000 together with his legal fees. You can read about it here.
On a regular basis, certain crimes are resolved at the Police Station shortly after arrest by way of a simple (a.k.a police) caution. Many observers view such a disposal as a slap on the wrist without serious consequences. They are wrong. Let me explain why accepting a police caution could be one of the most serious mistakes you ever make.
What is a police caution?
A police caution is a formal warning given to adults for minor offences. It is an alternative to prosecution in minor cases and is usually issued by the police, but can also be handled by other enforcement agencies, such as Local Authorities. Cautions cannot be issued in indictable-only (serious) offences, but otherwise the police retain a broad discretion to issue them.
The consequences of accepting a police caution
Although a caution is not a criminal conviction, if it is imposed for a recordable offence:
it will be entered on the Police National Computer and any subsequent court proceedings,
it may be used as evidence of previous misconduct where this is permitted,
it may prevent a further caution being offered in the future,
fingerprints and other identification data can be taken and retained,
in the case of a relevant sexual offence, the offender is placed on the Sex Offenders’ Register for two years,
if the person cautioned is in a notifiable occupation the police should disclose the caution to the employer. This may have especially serious consequences for people who work with children or vulnerable adults.
How the police issue cautions
In 2008, the Home Office issued Circular 016/2008 about ‘Simple cautioning of Adult Offenders’ to provide guidance on the use of the simple caution. It states that a simple caution ‘may be used for disposing of (low-level) offences when specified public interest and eligibility criteria are met’.
Relevant extracts of the circular are as follows:
The aims of the simple caution are to:
(a) deal quickly and simply with less serious offences where the offender has admitted the offence
(b) divert offenders where appropriate from appearing in the criminal courts
(c) record an individual’s criminal conduct for possible reference in future criminal proceedings or relevant security checks; and
(d) reduce the likelihood of re-offending.
When deciding when a Simple Caution is appropriate, a police officer must answer the following questions:
has the suspect made a clear and reliable admission for the offence either verbally or in writing?…
Is there a realistic prospect of conviction if the offender were to be prosecuted in line with the Code for Crown Prosecutors,
Is it in the public interest to use a Simple Caution as a means of disposal? Officers should take into account the public interest factors set out in the Code for Crown Prosecutors, in particular the seriousness of the offence…
Is the suspect 18 years or older?
Is a Simple Caution appropriate to the offence and the offender? (with reference to ACPO’s gravity Factors matrix and the suspect’s criminal history).
Other Considerations
Has the offender been made aware of the significance of a Simple Caution?
Under no circumstances should suspects be pressed or induced in any way to admit offences in order to receive a Simple Caution as an alternative to being charged.
Has the suspect given an informed consent to being cautioned.
“Informed consent” can be given when the suspect has received in writing an explanation of the implications of accepting a Simple Caution before he/she agrees to accept a Simple Caution. After receiving this, if the suspect does not give his/her consent, the police may choose to continue with the prosecution in accordance with the Directors Guidance on Charging. Officers must avoid any suggestion that accepting a Simple Caution is an “easy option”.
Making the decision
When considering the suitability of an offence for disposal by Simple Caution, the decision should be referred to an officer of at least Sergeant rank.
Consequences of receiving a Simple Caution
The significance of the admission of guilt in agreeing to accept a Simple Caution must be fully and clearly explained to the offender before they are cautioned.
Other legal guidance about police cautions
The Code for Crown Prosecutors
The Full Code test for deciding the appropriate disposal of a case has two stages:
the evidential stage, i.e. whether there is a realistic prospect of conviction, and
whether in all the circumstances, it is in the public’s interest for there to be a prosecution.
The ACPO Gravity Matrix
The Guidance requires an officer to apply the “ACPO Gravity Factors Matrix” when assessing the gravity of an offence.
All offences are given a gravity score (‘1’ for the most minor offences and ‘4’ for the most serious). Other factors, either aggravating or mitigating may raise or lower the score for a particular offence, by 1 point only.
So, for a total score of 1, the guidance states there should always be the minimum response applicable to the individual offender, i.e. No Further Action, Simple Caution or Penalty Notice for Disorder.
For a score of 4, the guidance states to always charge.
How the courts interpret the law on police cautions
It is apparent that police officers responsible for applying the Home Office Circular enjoy a wide margin of appreciation as to the nature of the case and whether the pre-conditions for a caution are satisfied.
As Lord Justice Schiemann put it in R v Metropolitan Police Commissioner ex parte Thompson [1997] I 1 WLR 1519
“it will be a rare case where a person who has been cautioned will succeed in showing that the decision was fatally flawed…”.
Cases where a police caution has been removed after the event:
How CCTV saved Mrs O’Reilly
In a case that I was involved in against West Yorkshire Police, I obtained CCTV footage of the Custody Suite that provided “clear evidence that a caution was not explained in full or correctly” to my client Mrs. O’Reilly, in breach of the Circular’s guidance.
The facts
Mrs O’Reilly was arrested for obstructing an officer in the execution of his duty. She was taken to Dewsbury Police Station where she was kept in overnight.
The following morning, she was advised that she was to be offered a police caution. She was given no explanation as to what it meant to have a caution, nor given a choice in the matter. She was told that she would not have to disclose it and was told to sign a piece of paper stating that she agreed to be cautioned.
But for the incontrovertible CCTV evidence, I have no doubt that West Yorkshire Police would have rejected her complaint and my client would still have a caution against her (otherwise) unblemished name.
Result: removal of the police caution
As a consequence of Mrs. O’Reilly’s reliance on CCTV evidence to support her insistence that she had been mistreated, West Yorkshire Police agreed to expunge the caution from their system/the Police National Computer.
2. Judicial review of the Metropolitan Police
In another recent case brought against the Metropolitan Police, a decision to caution and its subsequent confirmation was challenged in Judicial Review proceedings.
The Court found that the suspect had made a clear and reliable admission, but on review considered:
the circumstances of the offence and offender,
the investigating officer’s thought process when deciding how to resolve the case (i.e. to take no further action, to offer a caution, or to prosecute), and
determined that he should have concluded that a prosecution was inconceivable, and that the public interest did not warrant a caution.
Accordingly, the Court decided to intervene and the caution was expunged.
A cautionary tale
Given the clear Home Office guidance and judicial support described above, successful challenges to the imposition of police cautions are rare.
Careful consideration has to be given by the Police as to whether to offer a caution, the suspect as to whether to accept, and a Criminal Defence Lawyer, if engaged, to advise whether to accept or reject.
The fact remains that challenging a caution after the event will be exceptional and accordingly, for the vast majority who accept a caution at the Police Station this will be on their record for ever-more.
If you (or your clients) have been wrongly issued with a police caution, contact me for confidential advice and assistance using the online form below, via my firm’s website, or call me on 0151 933 5525.
A former chief constable of South Yorkshire, Richard Wells, who took charge in the aftermath of the Hillsborough disaster in 1989, recently said that at the time police forces across Britain had ‘a culture of authoritarianism, defensiveness [and] excessive secrecy’.
Mr Wells statement followed publication of a report by the Hillsborough Independent Panel that found that senior police officers waged a concerted campaign, in the form of private briefings, redacted statements and stories fed to a Sheffield news agency, to “impugn the reputations of the dead” and save that of the South Yorkshire Police.
The current Chief Constable, David Crompton maintained in a BBC interview that “South Yorkshire Police is a very different place in 2012 from what it was 23 years ago”.
Is it? My client, Mr A would strongly disagree.
Attack by police dog
In February 2012, Robert, a 19 year-old football fan, was at Hillsborough to watch the derby between United and Sheffield Wednesday.
As he was walking home from the ground he passed a WPC with a police dog. Suddenly and without warning the police dog lunged at Robert, biting his right forearm, drawing blood and destroying his jacket, a recent Christmas present from his mum and dad.
Although he was shocked and in great pain, Robert asked the officer for her details as he intended to pursue a complaint about the assault by the police dog. She refused and a male police officer ushered him away.
Robert walked away and met up with some friends who advised him to return to the WPC to insist that she give him her details. Once again, she refused and once again, he was ushered away by the male police officer who belittled and laughed at him as he did so. At no time was it suggested that Robert had committed any criminal offence and at no time was Mr A obliged to give his details.
As he walked away, Robert saw another man receiving treatment in an ambulance. He had also been bitten by a police dog. Robert approached the paramedics, was treated and taken to hospital for dog bite injuries and shock.
Robert, a student has never been in trouble with the police before, complained to the police the next day and agreed to have the matter investigated by local resolution, an informal process I do not recommend.Before then, the police had no idea who he was.
Malicious Prosecution by the police
A couple of weeks later he was visited at home by two uniformed South Yorkshire Police officers. Rather than discuss his complaint, they served Mr A with a Fixed Penalty Notice for breach of s.5 of the Public Order Act on the day of the derby match, ie that he had caused ‘harassment, alarm or distress’.
Dilemma
Robert contacted me for advice. He knew that the s.5 charge was made-up nonsense, but that if he accepted the fixed penalty and paid the £60 fine it would be dealt with and he would not have a criminal record, something of crucial importance to a young man with the rest of his life ahead of him.
However, he also knew that South Yorkshire Police had issued the Fixed Penalty notice merely because he had the temerity to complain. They would not have known who he was, and so would not have served him with the Fixed Penalty Notice if he hadn’t approached them the following day to complain.
Ultimately, Robert decided to fight the allegation. He lodged the appeal and waited. It would appear that South Yorkshire Police then bungled their attempt to prosecute. They are now out of time to do so.
I am now representing him in a compensation claim against South Yorkshire Police.
No change
Although South Yorkshire Police’s Chief Constable David Crompton assured us that things had changed, my client was subjected to an entirely unjustified assault and prosecution. I am not re-assured by the Chief Constable’s words.
It appears to me that the s.5 Public Order Act prosecution was brought to put Robert in his place. Once again, we would hear the old line of the hooligan football fan being restrained by well-meaning police officers. In short; the same lie South Yorkshire Police peddled in the aftermath of the 1989 Hillsborough tragedy would be repeated following an attack by a police dog at the same football stadium 23 years later.
To put a 19-year-old in this position, where he had to decide between the principle of defending himself from trumped-up charges, or letting the matter lie, is nothing short of disgraceful and points to an institutional failing within South Yorkshire Police which has not been addressed. Unlike Chief Constable Crompton, I have no doubt that this leopard has not changed its spots.
Iain Gould is a solicitor who specialises in actions against the police compensation claims.
Update
I am pleased to confirm that South Yorkshire Police agreed to pay Robert, shortly before trial, substantial damages together with his legal fees. You can read more here.
Custody CCTV footage can often be helpful in an actions against the police claim.
Every police station in the country has a CCTV system in place recording everything that happens in the custody suite. Not only does the footage produced by the system provide vital evidence about a Claimant’s general demeanor immediately post-arrest, but it can also confirm or disprove the arresting officer’s initial arrest account. Often it contradicts the stated position of the police in correspondence, for example if they deny allegations of assault, leading to compensation being paid for the police’s wrongdoing.
Consequently, it is vitally important that custody CCTV footage is retained and made available to the Claimant and his actions against the police solicitor as soon as possible.
Many police forces operate a system whereby their CCTV footage is deliberately wiped after 90 days. In these days of digital technology, I often wonder why.
Also, increasingly I am coming across situations where CCTV footage is being wiped, despite my request within time that relevant CCTV footage be preserved. Excuses I have received recently include:
‘The Custody suite footage whilst requested by yourselves prior to the expiry of the 90 day period was addressed to the incorrect staff…’;
‘Your letter was received but unfortunately not acted upon…’ and;
‘there is no CCTV footage available as data was not captured due to technical difficulties…’
I have no doubt that these excuses are tactical, as they prevent access to evidence which may assist the Claimant and harm the police’s defence.
We all have an interest in how public funds are spent. If CCTV evidence will assist in early settlement of a claim that is in everyone’s best interests, especially the police’s, who will save money and time. Equally, if it contradicts the Claimant’s version of events, that should be known by his solicitor as soon as possible, who may take a different view as to the prospects of success. In short: custody CCTV footage should be retained and produced in every actions against the police case. Failure to do so can only be viewed with suspicion.
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