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.
I 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?
There are three types of damages available to victims of Police Misconduct; Basic, Aggravated and Exemplary.
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 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.
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.
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.
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.
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?
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).
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.
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.
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 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.
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?
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).
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.
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.
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.
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.
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.
Last week we saw the ugly side of the beautiful game return; images of wanton violence by football hooligans in Marseille at the start of the Euros.
Although only a minority were involved, the trouble tarnishes all football fans who become by default a hated group viewed with suspicion, even hatred, by the police and the public at large. The fans’ comfort, conditions and even their civil liberties are ignored. They can be herded, corralled, subjected to casual violence and anything can be believed of them.
It is against this backdrop that the prospect of bringing a successful action against the police on behalf of a football fan accused of hooliganism or disorder could look hopeless especially in the absence of compelling CCTV footage or other evidence.
Step forward Chris, a man of exemplary character from Birmingham. Chris supports Birmingham City FC (someone has to!) and has done since he was a lad.
On the 16 January 2011, Chris, then 23 years old, had been in a pub situated close to the City ground in Birmingham with friends watching the televised derby match between Birmingham City and Aston Villa. During the game, he drank 4 pints of lager. At the end of the match Chris and his friends left the premises to meet up with another friend who had been to the match itself. The group joined thousands of other fans who were heading away from the ground.
The group passed another ‘Birmingham City’ pub, outside which a large number of supporters had gathered. There was also a large contingent of uniformed Police Officers decked out in full riot gear. For whatever reason, the Police officers began to surround the group and usher them forward and away from the pub believing that trouble was going to erupt between the 2 groups (quite why, is a mystery as both groups of fans supported Birmingham City).
So as to achieve their objective, the officers began to use their shields to push Chris and his friends along.
Here’s Chris’ description of what happened next;
“A number of police officers began to surround us. The officers were wearing uniforms, fluorescent jackets and helmets and carrying round shields. Initially they began to shout “move on” even though we hadn’t stopped moving forward at any time. Then they started to repeatedly and aggressively push us using their shields, shouting “Move on” despite the fact that we were still moving along voluntarily.
One officer was immediately behind me. He was Asian, approximately 6’ 2”, medium build, in his early 30s. He pushed me with his shield 2 or 3 times hitting my back and elbows really hard, so much so that I was shunted forwards.
A second officer who was white, smaller, about 5’ 8” and in his early 40s came running from behind the Asian officer and began pushing me forwards, hitting me harder with his shield, up to 10 times. Again, I was shunted forward and caused to trip and stumble.
The force used by the 2 officers and their colleagues against me and the others in the group was wholly unnecessary. We were voluntarily moving forwards at all times and posed no threat to anyone else. They seemed to be hitting us for the sake of it.
I was becoming increasingly annoyed. I turned to the white police officer and put my right hand onto his shield and asked him to stop pushing. I shouted “fuck off, we’re moving”.
I turned around with a view to proceeding forward when the officer used his shield and hit me yet again.
I turned to remonstrate again and when I did, I noticed a third officer come charging towards me from the back and in between several police officers including the white officer referred to above.
As the officer charged, he raised his shield above his head, turning it sideways and slammed it into the right side of my head. With the force of the blow, I stumbled backwards. I turned and the officer then hit me again a second time, to the rear of my head at the bottom of my skull/top of my neck.
Chris realised that he was bleeding. He had a throbbing pain in his head and neck. He was shocked and outraged as were his friends. He staggered away. Despite his obvious injuries, no officer stepped forward to offer first aid or assistance. Chris and his friends walked on to a nearby pub where he tended to his injuries and took a photograph. Later, he returned home. It so happens that his sister, a serving Police officer with a different police force was visiting their parents. She accompanied Chris to hospital. Whilst waiting to be treated, she had the good sense to write down his detailed account of events. He was later examined; a 1.5cm cut to the right cheek was noted. The wound was cleansed and closed with glue. The laceration left an indented scar which was cosmetically disfiguring and permanent. In addition to the laceration/scar, Chris suffered daily headaches which gradually resolved over the months ahead.
Notwithstanding Chris’ detailed description of events, it is important to bear in mind that;
he accepts that he had drank 4 pints during the course of a relatively short period of time (1 ½ – 2 hours) immediately before the incident;
he accepts that he verbally remonstrated with officers and physically grabbed an officer’s shield;
this was a volatile football derby game which inevitably carried with it a perceived high risk of football related violence or disorder;
the Police are present in large numbers supposedly to protect not injure;
there was reportedly no CCTV footage of the incident.
Although Chris was a man of good character who could provide cogent witness evidence, in context, to an outside observer, the prospects of a successful civil action against the Police might seem slim.
Unfortunately, when the offending Police Officer’s evidence is considered, that outside observer might conclude the prospects of success were next to impossible because of course the officer who struck Chris, Sergeant A gave a very different account;
“As we pushed the group back, I saw one of the group stand still and face towards us. He grabbed out and grabbed hold of my Police shield as I pushed towards him. I told the male to “move back”. I saw the male’s body weight drop and his eyes became fixated on me. His shoulders dropped and his fists were clenched. I honestly believed the male was going to attack me. The male then shouted “Come on then you cunt”. At that point I was two feet away from the male. I was unable to reach for any of my personal safety equipment due to holding my police shield. My visor was down on my public order helmet. Due to the nature of the incident and the weather conditions my visor was slightly steamed up and my visibility was not as clear as normal. I used my shield and punched out with the front of the shield which impacted on the male’s face. The front of the shield made a direct hit with the male’s face which immediately stunned him. I hit the male as hard as I could, but only struck him to the face once. I would describe the male as being 6 foot 2 inches tall, 25 years of age, dark hair, thick set.”
Other officers offered some corroboration for Sergeant A’s account.
The Inspector on duty reported as follows;
“As they reached the bus stops underneath the railway bridge, some of the group were leaning back against the shields, trying to stop. Officers had to physically push them with their shields to keep them moving, as I instructed. I saw one youth in particular, face the officers and push back hard at the shields. He continually shouted at the officer directly in front of him telling him to “fuck off!”. I was 10 – 15 yards from this and I saw the officer to be Sergeant A. I saw Sergeant A push hard with his shield held in front of him in a correct, trained, manner, forcing this youth backwards, preventing him from stopping. I could hear Sergeant A shouting clearly “move back” and “get back”. The youth was resisting going backwards and tried to grab Sergeant A’s shield”.
Later on, he noticed the same youth who by now “had a small trickle of blood to his left cheek. I recognised this youth to be the same one that was pushing at Sergeant A’s shield as he was the most aggressive and volatile amongst them. The injury was so minor I did not feel he required medical attention.
From the very start of the policing operation, including the match ‘briefing’, it had been stressed that officers must be robust but fair in their policing style. It is my opinion that Sergeant A had performed his role in exactly the manner which I, and West Midlands Police, expected.
I have performed a number of duties as a PSU Commander with Sergeant A as one of my Serial Officers. He has an excellent leadership style and receives a great amount of respect from his team. When I perform PSU Commander duties at …………. football matches, Sergeant A is one of the first names on my list that I would want on my PSU. This is because I can rely on his firm policing style at times when it is needed but in a proportionate manner.
In relation to the allegation that Sergeant A had used excessive force I can say that I completely and utterly dispute the allegations. If I had felt that Sergeant A had acted inappropriately I would have dealt with the incident myself”.
The Asian officer described by Chris added further corroboration; he said he was “looking in the direction of Sergeant A and said to him,“Come on then you cunt”. I could see that he looked extremely aggressive and he had his fists clenched. Sergeant A then hit him with his shield towards his face. This appeared to have the desired effect and the male moved on”. Other officers gave a similar account.
Shortly after the incident, Chris lodged a formal complaint. 6 months later, Chris received a 20 page investigation report. It transpired that another officer present had misgivings about the conduct of Sergeant A and no doubt in difficult circumstances had reported Sergeant A to his Inspector who in turn reported to Professional Standards.
Sergeant X recorded that;
“I directed my serial to gently nudge the group with their shields to push them up the road… As we were doing this the serial, which consisted of 6 officers plus myself were explaining to the group why they needed them to move. I noticed the other serial headed by Sergeant A were also using their shields to nudge the group up the road. My serial was at the front/side of the group and I was situated behind them so I could monitor the group. Sergeant A’s serial was behind the group containing them. Both serials were moving the group away from the ground. As we were moving the group they were somewhat reluctant and slow moving, two or three members of the group began to take exception to our actions and question our intentions, they were using phrases such as “stop fucking pushing us”…. They wasn’t being aggressive, just ‘arsey’ swearing at us. At this point we continued to nudge the group gently up the road. One officer from the serial to my left… ran through the others quickly and hit male 1 with the flat of his shield in his back. I noticed that this was Sergeant A…. At the time male 1 had turned to face and ask “what the fuck you pushing us for?” as he has turned that is when Sergeant A moved forward to strike him in the back. He hit male 1 hard as he stumbled violently forwards and managed to stay on his feet by putting his hands on the wall underneath the railway bridge. When this male re-gained his balance he turned toward Sgt A and said “what the fuck did you do that for you twat?”…. Sergeant A has then struck male 1 again causing him to stagger backwards. Male 1 then remonstrated with Sergeant A as to why he kept hitting him…. Male 1 was still shouting…. clearly unhappy with what had happened, his hands were open and not making a fist and although very vocal he was not offering any physical threat…. I then saw Sergeant A turn his shield so that the edge/rim was pointing towards the male 1. I know this technique is taught in public order and is called ‘Blading’. This is taught to be used only when encountering serious levels of violence and as a last resort. Sergeant A has pulled the shield back above his head and struck the male with it. Both strikes were towards the male’s head and face area on the right side…. I felt Sergeant A wasn’t in any danger throughout the incident and felt that his use of force in this situation was inappropriate.”
Another officer who was in Sergeant X’s serial also said that he “saw a round shield above officers’ heads at one point” but that he could not identify the officer it belonged to.
Notwithstanding Chris’ account and that of Sergeant X, the Professional Standards Report dismissed the complaint by concluding;
“Sergeant A describes Chris as standing directly in front of him and threatening him directly. The accounts provided by the Asian officer corroborate Sergeant A.
It must be noted that when officers use any ‘use of force’ technique it is the responsibility of that individual officer to account for and justify that action based upon their perception of the incident.
The incident was obviously volatile with a potential for major disorder. Whilst Chris states that he was moving on as requested; he clearly was offering some resistance to simply moving on. In the circumstances, Sergeant A therefore used necessary force. Sergeant A has stated that he felt in fear of his safety based upon his perception of the incident.
Whilst the area targeted by Sergeant A raises some concern, the question to be addressed is whether the force used is actually excessive. The investigating officer feels that having considered all of the evidence; the force used upon Chris by Sergeant A was necessary, proportionate and reasonable in the circumstances.
Really? Even allowing for some resistance from Chris, or at worst, threatening behaviour, was the officer’s use of his riot shield as an offensive weapon necessary, proportionate and reasonable in the circumstances? In my opinion this was a typical Police ‘whitewash’ of a legitimate complaint. The report’s conclusions were nothing other than perverse.
Chris lodged an appeal to the Independent Watchdog, the IPCC. On review, the case worker concluded that Sergeant A had, on the balance of probability used the edge of his shield to hit Chris. The case worker went on; “The use of the edge of the shield is a recognised method and (force) guidance quotes that “In certain circumstances where the officer feels that there is no other alternative available to them and it is reasonable in the circumstances and absolutely necessary to the level of force being used or threatened, then the edges of the shield can be used by being driven towards the offender. This use must be the minimum amount necessary and proportionate to the seriousness of the circumstances they find themselves in”.
In the circumstances, the Professional Standards Department’s findings were overturned and the IPCC directed that Sergeant A be reprimanded.
On Chris’s instructions, I subsequently brought a civil claim for compensation against West Midlands Police. The initial response of West Midlands Police was to neither admit or deny liability but offer £750.
Notwithstanding the findings of the IPCC, it was clear that West Midlands Police were not going to properly compensate Chris without a fight.
On Chris’s behalf, I issued Court proceedings. Although West Midlands Police then belatedly admitted liability they continued to fail to recognise the serious nature of their officer’s misconduct and the implications this would have as regards the likely award of damages that a Court would make. After a succession of offers and only a short while before the final hearing, West Midlands Police offered and Chris accepted a final settlement of £17,500 plus costs.
So justice was done; but not before the police had – as is their habitual practice – closed ranks against Chris and tried to deny his legitimate complaint. Where would we have been without the honesty of Officer X, who did the right thing and spoke out against wrongdoing by one of his colleagues? Frankly, in my experience, too few officers are willing to speak up or criticise their fellow officers in these situations. The eventual settlement reached with the police was over 20 times as much as their initial offer. There was absolutely no need for the Police to drag this matter out as long as they did, but it seems that the general police mentality when faced with a case like Chris’s is that in these situations, any fan who gets injured ‘must’ by definition have been doing something wrong. Given this aggressive ‘us versus them’ approach to the policing of football fans, cases of police brutality subsequently compounded by a prejudiced refusal to admit any fault on their part, are sadly all too common.
By tackling the fictitious criminal offence of “driving while black” Home Secretary Theresa May might be about to make a real difference in many people’s lives.
“Driving while black” is where police officers stop, question, and even search black and minority ethnic drivers who have committed no crime, based on the excuse of a road traffic offence.
The Home Secretary has ordered that the “best use of stop and search” code be extended to vehicle stops under the Road Traffic Act. The new rules will require police officers to record the driver’s ethnicity, the reason for the stop and the outcome.
She intends to make the changes because “One of the things I am very clear about is that I didn’t take action on stop-and-search to see the police using other things in a way that could be questioned.”
The rule change is intended to improve transparency and tackle the disproportionate targeting of black and minority ethnic drivers. It is hoped that such a move will restore relations between the police and public.
This is why we should be cautiously optimistic.
Stop and Search Circumvented
In 2014 police forces were encouraged to voluntarily sign up to the “best use of stop and search” scheme, which was intended to limit blanket Section 60 of the Criminal Justice and Public Order Act (1994) stops, keep better records, and publish them online.
At first glance, it appears to be working. The Home Office reported, “In the year ending March 2015, there were 541,000 stops and searches conducted by police in England and Wales, a fall of 40% compared with the previous year.”
But, as Mrs May pointed out, police forces are now using “other things”, including the Road Traffic Act.
Under section 163 of the Road Traffic Act 1988, a person driving a “mechanically propelled vehicle” or riding a cycle on a road must stop on being required to do so by a constable in uniform or a traffic officer.
Failure to stop is a criminal offence.
The Power to stop in section 163 is complimented by the powers in sections 164 and 165.
These provisions require the driver (and supervisor, if the driver is on a provisional licence) to produce certain documentation, such as a driving licence, certificate of insurance and MOT test certificate of roadworthiness where an officer “has reasonable cause to believe to have committed an offence in relation to the use on a road of a motor vehicle”.
The police can also demand names, addresses, and dates of birth of the driver, owner (if different), and supervisor of the driver (if on a provisional licence).
Again, failing to provide this information is a criminal offence.
These sections are so wide that the Road Traffic Act is open to abuse, allowing miscreant police officers to circumvent the stop and search rules which require a “reasonable suspicion” that the driver is carrying an unauthorised weapon or drugs.
Manipulating the law in this way can have serious consequences, as my client D E will confirm.
Stopped for “Driving While Black”
My client, D E, is a disabled black man from Dagenham who was the victim of a dubious Section 163 Road Traffic Act stop in April 2012.
On the day in question, he was driving his Vauxhall Astra to Dagenham Sunday market. He was with his friend and cousin, who are also black males.
Mr E maintains that he was driving within the 30mph speed limit along Wood Lane, when at about 7:50a.m., they passed a marked police car coming the other way. He made eye contact with one of the officers. As the police car passed, the driver put on his sirens and lights, turned and followed Mr E’s car.
(We later found out why the police stopped Mr E. One officer recorded that the Astra “drove past us seemingly at high-speed”. In subsequent court papers, it was suggested that the officer considered a high-speed as any speed over the set speed limit in that area. So, perhaps 31 mph?)
Mr E immediately pulled over, got out and spoke to one of the officers. The officer asked for Mr E’s full name and date of birth and returned to the police car so as to check his details on the Police National Computer. The officer’s colleague came out and asked for the same information. Again, Mr E gave his details.
Both officers told Mr E that this was just a routine check. Accordingly, Mr E was shocked when he felt someone grabbing him from behind. He turned to see the first officer trying to handcuff him and asked “Why are you arresting me? I haven’t done anything wrong.”
Disabled Man Assaulted
D E can only walk short distances with a stick and is otherwise wheel-chair bound due to avascular necrosis, a chronic degenerative disease which particularly affects his hips and legs. The disease cuts off blood supply to bones, eventually leading to their fracture and collapse. It can be accelerated by physical trauma. Mr E is registered disabled because he is in constant pain similar to severe arthritis.
While the first officer attempted to handcuff him, Mr E struggled to stay on his feet. The second officer came over and performed a “leg sweep”, causing Mr E to fall to the ground. The first officer told Mr E to stop resisting, that there was a warrant out for his arrest, and that he was now also under arrest for assaulting a police officer.
Mr E felt himself being handcuffed to the rear. He then felt pressure being exerted upon him by the officers through what felt like a knee in his back and a hand on the back of his head forcing him down. He had difficulty breathing, told the police repeatedly that he was disabled and begged to be let go. Other officers arrived.
A number of officers took hold of Mr E’s legs, brought them up behind his back, and crossed them over. Mr E says he nearly passed out with the pain.
By this time there was an audience of Mr E’s companions, 6-10 male and female police officers, and concerned onlookers.
Mr E said that during the struggle his jeans and underpants came down, exposing his buttocks and genitals.
As officers sought to escort him to a police van, they pulled his underpants up but his jeans remained around his ankles. He was then forced to walk with his trousers around his ankles but was unable to keep up with the pace of the officers and so was effectively dragged to the van to be taken to Freshwharf Police Station.
Mr E’s nightmare did not end there.
At the station Mr E denied that he was wanted or that he had assaulted any officer. The Custody Sergeant advised Mr E that he would be kept in overnight, taken to court in the morning, and that anything he wanted to say could be said in interview later. D E was then asked to provide the Custody Sergeant with his name, but he initially refused on the basis that he had already given it to the two officers who were standing with him.
Rather than simply asking his colleagues, the Custody Sergeant threatened D E that he would be “Tasered” if he did not co-operate.
Mr E was then put in a cell and eventually interviewed without a solicitor.
After 6 hours in custody, Mr E was charged with assaulting both police officers causing actual bodily harm, and released on bail.
By this stage, it was accepted that the outstanding warrant did not relate to Mr E. In fact, it was for a white man with the same details.
Mr E pleaded not guilty and attended numerous court hearings before trial at Barkingside Magistrates’ Court. At the trial on 30 July 2012 both officers gave evidence to support alleged false statements made in their notebooks about the incident.
At the end of the prosecution case Mr E’s criminal defence solicitor successfully had the proceedings struck out on the basis that his client had “no case to answer”.
The officers claimed that they stopped my client for speeding, but Mr E was sure he was driving within the speed limit. My client is adamant that his only crime was “driving whilst black”.
Having stopped my client, the officers then aggravated matter by failing to carry out proper checks.
My client provided his full details immediately upon request. An officer then completed a name check via his police radio. He was advised that a person with my client’s name was wanted for failing to attend court for minor traffic offences.
But rather than complete any further checks (which would have revealed that the suspect was a different skin colour) my client’s case was that the first officer approached him from the rear and took hold of his left arm. My client instinctively reacted by turning and attempting to push away the person who had taken hold of him. The officers then sought to handcuff my client and a struggle ensued.
I pursued the case on the basis that, it is established law that if a police officer restrains a person but does not at that time arrest (or intend to arrest) him, the officer commits an assault even if an arrest would have been justified.
As such when the officer took hold of my client, he assaulted him and Mr E was well within his rights to resist.
Unfortunately, my client’s reaction then triggered an alleged overzealous and disproportionate response in that he was aggressively taken to the ground, unlawfully arrested and then prosecuted for an offence which if found guilty could have landed him in jail (the maximum sentence is 5 years).
D E needed hospital treatment for the injuries sustained in the police assault, and a psychiatrist diagnosed him as suffering with post-traumatic stress disorder for which he underwent a course of counselling.
Having intimated a claim, the Metropolitan Police denied liability. I was obliged to issue court proceedings on behalf of my client. Notwithstanding the denial and after numerous offers, I was finally able to achieve an out-of-court settlement of £22,500 plus legal costs.
In D E’s case the police officers involved abused an existing law (the Road Traffic Act) to fulfil their aim (of effecting a stop and search).
This approach, while effective, has not gone unnoticed, leading to Theresa May’s announcement and a 2015 report by Her Majesty’s Inspectorate of Constabulary. The report’s authors said “it is certainly the case that many people assume that being stopped by a police officer when they are in their car has the same status as being stopped and searched (in the street) when, in fact, the level of scrutiny and accountability that the officer is under is significantly less than is the case for stop and search.”
HMIC added that it had “serious concerns about there being no requirement to record these stops” and “forces cannot demonstrate to us that they are using these powers effectively and fairly”.
I hope that the proposed reforms to this abuse of the Road Traffic Act will have a similar effect to the “best use of stop and search” code, which has led to dramatic reductions in the use of that tactic.
But experience shows that the police can be quite creative in manipulating the law. When they are limited in using one approach (stop and search) they quickly find another (abuse of the Road Traffic Act).
As ever, Government, local communities, and lawyers must remain cautious.
Contact me for help with your civil actions against the police using the online form below or at my firm’s website.
deletion of records and data from national police systems obtained as a result of the arrest.
Data held in police systems can include the record of arrest, fingerprints, DNA sample and custody photograph.
This issue is particularly important for individuals who have no prior arrest history and who consider such retention of personal records with grave suspicion.
How Records Are Deleted from Police Systems
In certain cases subject to the Police and Criminal Evidence Act (1984) the individual’s DNA profile and fingerprint record should be automatically deleted by reason of the Protection of Freedoms Act 2012 (the “PoFA”). See below:
1 Destruction of fingerprints and DNA profiles
After section 63C of the Police and Criminal Evidence Act 1984 insert—
“63DDestruction of fingerprints and DNA profiles
(1)This section applies to—
(i)taken from a person under any power conferred by this Part of this Act, or
(ii)taken by the police, with the consent of the person from whom they were taken, in connection with the investigation of an offence by the police, and
(b)a DNA profile derived from a DNA sample taken as mentioned in paragraph (a)(i) or (ii).
(2)Fingerprints and DNA profiles to which this section applies (“section 63D material”) must be destroyed if it appears to the responsible chief officer of police that—
(a)the taking of the fingerprint or, in the case of a DNA profile, the taking of the sample from which the DNA profile was derived, was unlawful, or
(b)the fingerprint was taken, or, in the case of a DNA profile, was derived from a sample taken, from a person in connection with that person’s arrest and the arrest was unlawful or based on mistaken identity.
(3)In any other case, section 63D material must be destroyed unless it is retained under any power conferred by sections 63E to 63O (including those sections as applied by section 63P).
(4)Section 63D material which ceases to be retained under a power mentioned in subsection (3) may continue to be retained under any other such power which applies to it.
(5)Nothing in this section prevents a speculative search, in relation to section 63D material, from being carried out within such time as may reasonably be required for the search if the responsible chief officer of police considers the search to be desirable.”
It is important to note the exceptions at points (3)-(5), and be aware that the PoFA does not deal with custody photographs (stored on the Custody Suite Imaging System, “CSIS”) and the associated police national computer (“PNC”) record and/or entry.
As a result, unless an application is made under the Record Deletion Process (“RDP”), even if DNA and fingerprints are destroyed, the PNC records and custody photograph will be retained by the police until the subject is deemed to have reached 100 years of age.
How to Seek Deletion of Records from National Police Systems
Irrespective of any complaint or civil claim pursued, the individual can apply for the destruction of all of his/ her personal data under the Record Deletion Process. Click on this link for guidance and the application form issued by the Association of Chief Police Officers Criminal Records Office (“ACRO”).
Applications can be submitted to ACRO or the individual police force concerned. The applicant must state the grounds for having their records deleted and provide proof of identity/current address. The guidance suggests that the evidence and grounds for deleting records from national police systems will be then be examined by a chief officer. If agreed, the expectation is that any records held will be deleted.
There are no set criteria for the deletion of records. Chief officers must exercise professional judgement based on the information available.
The following are some examples of circumstances in which deletion will be considered:
Malicious/false allegation. When a case against an individual has been withdrawn at any stage, and there is corroborative evidence that the case was based on a malicious or false allegation.
Proven alibi. Where there is corroborative evidence that the individual has a proven alibi and as a result she/he is eliminated from the enquiry after being arrested.
Incorrect disposal. Where disposal options are found to have been administered incorrectly, and under the correct disposal there would be no power to retain the DNA profile. In such circumstances, consideration should be given to deleting records.
Suspect status not clear at the time of arrest. Where an individual is arrested at the outset of enquiry, the distinction between the offender, victim and witness is not clear, and the individual is subsequently eliminated as a suspect.
Judicial recommendation. If, in the course of court proceedings, a magistrate or judge makes a recommendation that an individual’s records should be deleted.
No crime. Where it is established that a recordable crime has not been committed. For example, a sudden death when individual is arrested at the scene but after post-mortem it is determined that the deceased person died of natural causes and not homicide.
Metropolitan Police Record Deletion Process
For deletion of records held by the country’s largest force, the Metropolitan Police (“the Met”), applications must be submitted to the Early Deletion Unit (“EDU”).
It is not a straightforward process, as my client, Mr M, would confirm.
Mr M (name withheld to preserve anonymity) was arrested on 31 July 2012.
A month earlier an employee of Metropolitan Police was driving his car when he saw two individuals arguing in a car upfront.
The female passenger allegedly slapped the male driver (Mr M) and in response he allegedly punched her in the face.
At the next set of traffic lights, the Met employee parked in front of the car and got out to speak to the couple. He allegedly noted that the female, Mr M’s girlfriend, had injuries to her face and obtained their details.
Several days later the Met employee submitted a report about the incident.
Given the priority that domestic abuse is given, the case was investigated.
Unfortunately, there was a significant delay because:
the police failed to get to grips with the location of the incident; and
there were a large number of people at the Met passing the matter around.
During the investigation, Mr M’s girlfriend was contacted on a number of occasions.
She denied that she had been assaulted and further, refused to lodge a formal complaint. Notwithstanding this, a decision was made to invite Mr M to attend a police station for voluntary interview a month after the incident.
Upon arrival, despite attending as a volunteer, Mr M was summarily arrested.
He was detained in custody for 3 1/2 hours during which time he was interviewed.
Mr M was then bailed to attend the police station on 4 September 2012 where he was again detained in custody for a further 4 hours during which time he was interviewed again.
Ultimately, he was charged and bailed to attend court.
Mr M pleaded not guilty and eventually the Crown Prosecution Service discontinued proceedings on the basis of insufficient evidence.
Mr M searched the internet for guidance and, given my track record of success in this area, contacted me for legal help.
My client’s priority, as a man of exemplary character, was the destruction of all personal data held. He also sought compensation for his false arrest, detention, and the stress of court proceedings.
Mr M could have lodged an Application to the EDU shortly after the Crown Prosecution Service decided to discontinue proceedings. On my advice, he delayed, because, I advised, a complaint about the police’s conductshould come first.
Complaint Against the Metropolitan Police
After discussing the case, I explained to Mr M that he did not have grounds to complain with the Met’s decision to investigate.
But what was objectionable was:
the delay; and
inviting Mr M to attend a police station for a voluntary interview followed by an immediate decision to arrest at that time, which was said to be necessary so as “to allow a prompt and effective investigation.”
I submitted a complaint against the Metropolitan Police on Mr M’s behalf and agreed to act in his civil action against the police for compensation.
As is often the case, the complaint was dismissed by the Metropolitan Police.
Following review, Mr M’s complaint was upheld by the IPCC.
This mattered because the legality of arrest was initially considered by the Met’s “Professional Standards Champion”. As they initially dismissed my client’s complaint I am sure that the application for deletion of records would also have been rejected.
Civil Claim Supporting Deletion of Records
Despite the IPCC’s positive findings its decision was not binding upon the police.
As a result, when I submitted Mr M’s compensation claim to the police citing wrongful arrest, the Metropolitan Police denied liability.
In the circumstances, I had no alternative but to issue court proceedings to seek justice for my client.
Although liability was disputed, solicitors on behalf of the Met offered to settle his claim out of court. This confirmed my view that Mr M’s claim was entirely justified, despite the Met’s formal denial.
After extensive negotiations, Mr M settled his compensation claim for £6500 plus legal costs.
Despite this, in previous negotiations with the Met, it has been made clear that destruction of personal data has no relevance to any civil claim and that a separate application must be lodged to the EDU.
I used the supportive decision of the IPCC and offer of settlement to persuade the chief officer to agree to the deletion of my client’s records.
Delay in Deletion of Records
You would think that it would be a relatively quick and easy task to delete records. After all, they were easy enough to create when Mr M was arrested. Not so.
My application to delete his records was acknowledged in mid-January 2015. As is standard, the (laughably misnamed) Early Deletion Unit advised that it would take “up to 12 months” for a decision about deletion to be reached.
Notwithstanding several reminders, no decision was made by mid-January 2016. The EDU advised that “there is no statutory time limit for processing these requests and they may take up to 12 months or longer, due to the volume of similar applications currently being dealt with by the MPS”.
See redacted letter below:
You may wonder how many requests are processed at the EDU. In response to a recent Freedom of Information Act request, the Metropolitan Police said that they were unable to provide this information because, remarkably, “This information is not recorded in a searchable electronic format”.
“As of the 18th September there were 164 requests awaiting decision by the
Commander. These are regularly reviewed by the Commander and dealt with on
a priority basis. The outstanding requests awaiting decision are not
attributable to any staffing issues.”
In any event, I am pleased to confirm that the EDU did eventually process Mr M’s application. In mid-March 2016, the EDU ironically advised that the case was “eligible for early deletion”.
And you might think that now that a decision has been made, the offensive data would be deleted forthwith. But no, the EDU advise that “the deletion process may take several months to complete”.
See redacted letter below:
Despite this, my client is extremely pleased. His arrest has been recognised by an independent body as unlawful, he has received financial compensation for his unlawful detention, but most importantly, ALL personal data obtained as a result of his arrest has been (or will be) destroyed.
His case proves that deletion of records from national police systems is possible, but it takes perseverance and knowledge of the system.
Contact me for help with your actions against the police using the online form below or at www.dpp-law.com.
Police officers have wide powers, status, and influence. Their role is to protect and serve the public. Each case of police abuse represents a serious betrayal of the trust and confidence that individuals, and the wider public, should have in them.
In 2012 the Independent Police Complaints Commission (“IPCC”) reported on this issue. (The Abuse of Police Powers to Perpetrate Sexual Violence). The report explained that “It is not possible to know precisely how many people have been victims of police officers or staff abusing their powers. There is no evidence to suggest it is commonplace, but nor can we be confident that all such cases are reported.”
It gave six examples of police abuse of power for sexual gain and concluded that forces were not doing enough to stop this type of corruption.
The authors urged “senior leaders in the police service to be alert and determined to root out this kind of abuse of power,” and said “Police forces should maximise every opportunity to prevent, or at least reduce, the likelihood of police officers and staff from engaging in the behaviours described within this report.”
But are they?
If the experience of my client “Clare” is anything to go by, I doubt it.
PC Jordan Powell joined West Midlands Police in 2004.
In September 2007, PC Powell was sent to investigate a report of a house burglary. The woman who made the report (not my client Clare) had been having domestic issues with her ex-partner. He was the suspected burglar.
Powell began texting flirtatious messages to the woman and a relationship developed culminating in PC Powell visiting her home whilst on duty and having consensual sexual intercourse.
The ex-partner found out and made a complaint. In 2008, PC Powell received a written warning for misconduct.
Despite this, it would appear that little was done to monitor and supervise his activities to prevent further abuses of power, in particular with Clare.
Continued Police Abuse
Clare was the victim of domestic abuse by her ex-husband. He was arrested on a number of occasions.
In 2010, Clare reported a burglary to the police and accused her ex-husband of stealing some of her jewellery. The case was handled by PC Powell and went to court, where Clare’s ex-husband was successfully prosecuted.
In May 2012, Clare reported further domestic abuse by her ex-husband and obtained a non-molestation order. The order could not be served on him so she attended her local police station for advice. She was again dealt with by PC Powell, alone.
Subsequently PC Powell texted Clare on his private mobile phone.
Some text messages were exchanged and in one Clare thanked PC Powell for his help. PC Powell responded by asking Clare to keep his number and to call or text if she needed help. He ended his text with a ‘X’ which Clare took to mean a kiss. She wasn’t comfortable with this.
Soon afterwards, Clare’s ex-husband breached the non-molestation order. Clare texted PC Powell to report the breach. There were further texts between them and one of the texts again contained an ‘X’ from the police officer.
The following day Clare sent PC Powell another text to report a further breach of the order by her ex-husband. PC Powell texted back saying that he would meet her at home. He ended the text with an ‘X’.
Again, Clare wasn’t comfortable with the ‘X’ in the text message but was not confident enough to challenge it because Powell was a police officer. PC Powell went to Clare’s home with another officer and took a statement.
Clare and Powell exchanged further texts. She admits that she was flattered by the attention.
Over the next few days, the exchanged text messages became more suggestive. It wasn’t long before PC Powell started visiting Clare in the middle of the nightwhile he was on duty to have sex with her.
The relationship between PC Powell and Clare ended in July 2012. Clare felt PC Powell wanted to control the relationship and was visiting just for sex.
PC Powell was caught when his own Force became suspicious and set up a “honey trap” operation using an undercover female officer.
The officer pretended to be a victim of domestic violence and rang police in June 2012. PC Powell was sent to her home, which was fitted with covert recording equipment, to investigate the complaint. Within a couple of hours of leaving, PC Powell had sent the “victim” flirtatious text messages from his personal mobile phone.
As part of the investigation, officers from West Mercia Police’s Professional Standards Department visited Clare who was brave enough to provide a full account as to what had happened.
Shortly afterwards, PC Powell was arrested and prosecuted for misconduct in public office. At trial the court heard how, on the day before his arrest, Powell sent text messages to three women asking for sex. He was jailed for 15 months after pleading guilty to three charges of misconduct in public office.
West Mercia Police dismissed Powell at a special case hearing chaired by the Chief Constable. In a statement issued after the dismissal hearing quoted by the BBC, the Deputy Chief Constable acknowledged that “Incidents of this nature have the potential to seriously damage the trust placed in us by those communities.”
PC Powell clearly abused his position for sexual gain. He targeted vulnerable women. He then groomed them with compliments and flattery. Numerous sexual relationships developed.
What could his own force do to prevent such abuse?
West Mercia Police maintain that they did everything possible; that PC Powell was a “lone wolf”.
Maybe. But in light of the misconduct finding by the Force in 2008, West Mercia Police knew that PC Powell posed a risk, and yet they appear to have done little or nothing to monitor and prevent him from abusing his position.
As I said in the 5Live interview, it beggars belief that PC Powell was not dismissed in 2008 (when he was only given a written warning), and allowed to deal with vulnerable victims of domestic abuse alone.
What of Clare? She says, “It sickens me to think about what PC Powell has done to me and other women. I have, thanks to him, had my self-confidence and esteem shattered, my trust in men and the police robbed. He has in my eyes, behaved more appallingly than my ex-husband, he abused his power as a Police officer; someone you trust and invite into your home and life, at a time when your whole world is falling apart”.
Civil Action Against West Mercia Police
With my help, Clare is now suing West Mercia Police for compensation.
In fairness to the force, the Assistant Chief Constable apologised at an early stage and the Force’s legal department admitted liability early on. Only quantum (the value of Clare’s claim) remains to settle her claim against the police and help her move on with her life.
As a result of PC Powell’s abuse, Clare has suffered psychological damage and has undergone lengthy counselling.
Although full details of her claim were presented in September 2015, West Mercia Police failed to offer suitable compensation and/or actively engage in settlement negotiations.
To progress matters, I had no alternative but to issue court proceedings on Clare’s behalf. This is a serious step, especially for Clare, who has never previously made a claim for compensation and is unfamiliar with the process.
I urge West Mercia Police put forward a reasonable and realistic offer to settle Clare’s claim. By delaying it they are inflicting a second injustice on her and delaying her recovery.
The Chief Constable also needs to conduct a root-and-branch review of Force procedure. As Lord Acton said, “Power tends to corrupt, and absolute power corrupts absolutely.” This appalling abuse of police powers demands strong leadership and control.
If you want help with your police abuse claim contact me using the online form below or at www.dpp-law.com
Patricia Gallan, Assistant Commissioner Specialist Crime and Operations, said in a statement: “The Metropolitan Police accepts absolutely that we should apologise when we get things wrong, and we have not shrunk from doing so.
“However, if we were to apologise whenever we investigated allegations that did not lead to a charge, we believe this would have a harmful impact on the judgments (sic) made by officers and on the confidence of the public.
“Investigators may be less likely to pursue allegations they knew would be hard to prove, whereas they should be focused on establishing the existence, or otherwise, of relevant evidence.”
Miss Gallan also said that she recognised “how unpleasant it may be to be investigated by the police over allegations of historic abuse. For a person to have their innocence publicly called into question must be appalling, and so I have every sympathy with Lord Bramall and his late wife and regret the distress they endured during this investigation.”
The force had a duty to fully investigate “many serious allegations referred to us every year” and should do so “irrespective of their status or social standing”, the statement went on.
“It stands to reason that we cannot only investigate the guilty and that we are not making a mistake when we investigate allegations where we subsequently find there is no case to answer,” the assistant commissioner said.
“I accept that we can always learn and improve,” she insisted.
Wrongful Arrest Apology Sought
But do the Metropolitan Police “learn and improve” and apologise when they “get things wrong”?
My client Mr K (name withheld for confidentiality reasons) would disagree after he was wrongfully arrested in October 2013.
Mr K had previously served the Community as a part-time magistrate but that experience had not prepared him for a late night visit from police officers and a night in the cells.
Unbeknown to Mr K, on 12 February 2013, the County Court had imposed a non-molestation order against him in response to a series of spurious and vindictive allegations made by his ex-wife.
The non-molestation order was ordered to remain in force until 11 February 2014 at 11.59pm and provided that Mr K was, amongst other things, forbidden to use or threaten violence, intimidate, harass or pester, or communicate directly with his ex-wife. His only means of contact with her were to be through her nominated solicitors. Crucially, the order included a power of arrest so that if my client breached the order, he was liable to be arrested and brought before the Court.
Upon service of the order, my client contested it, saying that it had been supported by untrue and unfounded allegations and included a draconian power to arrest.
The Court agreed and, on 6 June 2013, discharged the non-molestation order, which was substituted with a “General Form of Undertaking”. In that both my client and his ex-wife effectively promised to not harass each other. As such, the threat of arrest for alleged breach of the non-molestation order was withdrawn.
On 9 October 2013, Mr K’s ex-wife reported a breach of the (now defunct) non-molestation order, claiming that my client had sent her emails. The Metropolitan Police decided to investigate and arrest my client.
On 11 October 2013, two officers attended my client’s home address at about 10.30pm. They told Mr K that he was to be arrested for breach of the terms of the non-molestation order.
Mr K told both officers that the non-molestation order had been discharged and replaced with a “General Form of Undertaking” which he had in his house. He offered to show it to the officers but they refused. They told Mr K that:
they had been instructed to arrest him;
they would not consider his documentation; and
he could give an account at the Police Station.
My client was dressed in his pyjamas, was not allowed to change, and was humiliatingly led outside in front of his neighbours to a waiting marked police van. He was taken to Ilford Police Station where he was processed and imprisoned in a cell overnight.
The next morning, Mr K was interviewed during which he produced the documentary evidence confirming that the non-molestation order had been replaced by an “Undertaking”. The interview lasted for less than 5 minutes and he was soon released without charge.
Complaint Against the Metropolitan Police
In November 2013, Mr K, upset at his treatment during the embarrassing and frightening episode, submitted a formal complaint to the Metropolitan Police’s Directorate of Professional Standards.
The Directorate’s long-winded investigation ended in mid July 2014. The Force thanked Mr K for raising the issue and confirmed that the officers’ behaviour had been unsatisfactory and breached professional standards. It accepted that Mr K’s arrest had been unlawful and upheld his complaint. But no apology was forthcoming.
My client felt that the officers’ punishment (“management action”) was wholly inadequate and lodged an appeal.
Following review by the Independent Police Complaints Commission (“IPCC”) in October 2014, it was considered that management action was indeed appropriate but that, in addition, the Metropolitan Police should “give consideration” to Mr K’s request for a written apology.
(It was presumably considered that an apology would go some way to satisfy Mr K that he had been wronged, that the Metropolitan Police recognised what they had done wrong, and would learn from their mistake.)
Despite this clear recommendation from the IPCC the Metropolitan Police again failed to apologise.
Having exhausted the complaint process, Mr K felt that he had no alternative but to pursue a civil action against the police. He sought me out as a specialist in actions against the police following an internet search.
After carefully considering the facts I took Mr K’s case and demanded an apology on his behalf. I also intimated a compensation claim, alleging, false imprisonment among other things.
Following investigation, solicitors acting on behalf of the Metropolitan Police responded with a financial offer of settlement without admission of liability or an apology.
As is so often the case, whilst compensation may provide vindication and some comfort to my client, what he really wants is an apology. Despite Mr K’s repeated requests, a recommendation from the IPCC, and numerous requests from me, the Metropolitan Police have failed to do this simple, and free, thing.
The Force could easily address this, even while negotiations about compensation continue. At this point there is nothing to be gained by refusing to apologise, so why not do it?
My client’s experience is not unique. Mr K is one of many clients that I have represented (and continue to represent) who has to fight tooth and nail for justice. Unlike Lord Bramall, most are not in the public spotlight with friends and family in high places who can bring the police to account.
The Metropolitan Police’s response to Mr K (offer compensation with no admission of liability or apology) is in line with my experience of their general policy. A policy that fails to recognise what I consider to be its moral and economic duty as a public organisation to apologise when in the wrong, resolve issues quickly, and avoid lengthy and expensive legal battles.
I certainly do not recognise Patricia Gallan’s statement that the Metropolitan Police apologise “when we get things wrong”. Her statement reads more like a defence of their practices and indicates an unsympathetic attitude, despite the platitudes.
Sadly for Lord Bramall, Mr K, and countless others, the “decency demanded” by Sir Max Hastings for an apology does not seem to exist at Britain’s largest police force.
For help with your civil action against the police contact me via using the online form below or at my firm’s website http://www.dpp-law.com.
The HMIC, which has statutory responsibility for the inspection of Police Forces in England & Wales, confirmed in its recent report on the police’s response to domestic abuse that the number of domestic violence related crimes increased from 269,700 (in the year to August 2013) to 353,100 (in the year to March 2015), an increase of 31% (see page 10 of the report).
Zoe Billingham, HM Inspector of Constabulary, described this as “a staggering increase in domestic abuse related crime” and added that the workload in many specialist police investigation units is “becoming overwhelming”, affecting the quality and speed of some investigations.
Is this “staggering increase” attributable to a rise in domestic violence cases?
The HMIC suspects not.
The report confirms that calls for assistance to the police for domestic violence related incidents fell by 10% in the 12 months to March 2015.
Instead, the Government watchdog states that the increase could be partly because police forces are:
“actively encouraging” victims to come forward; and
logging crime more accurately.
This would reflect “a determined effort by police leaders to make domestic abuse a priority”, the report says.
Legal Aid and Domestic Violence
I have no doubt that domestic violence has become a priority for some forces but there remain many areas of concern. For example, improving frontline police officers’ attitudes and understanding of domestic violence.
(For more on this read my recent blog posts on the experience of Alex Faragher here, here, and here.)
Another factor to explain this “staggering increase” in reported domestic violence is an unintended but foreseeable consequence of changes in entitlement to Legal Aid.
In April 2013, Legal Aid was withdrawn for almost all private family cases including:
contact and residence over children; and
This greatly reduced eligibility for Legal Aid in family matters, but people can still apply for Legal Aid if they can show “evidence” that they have been the victim of domestic violence in the previous two years. This includes:
an arrest for a relevant offence;
a caution; or
Domestic Violence Evidence
Despite these changes being introduced over two years ago, most people still think that Legal Aid is generally available in family matters.
When seeking advice, people may be surprised to find out they will have to pay for legal help privately or represent themselves in Court, unless they can prove they are a victim of domestic violence.
In the circumstances, some may be tempted to raise false allegations of domestic violence in order to secure Legal Aid.
The changes to Legal Aid introduced in 2013 mean that there is now a financial incentive to fabricate domestic violence in a family law matter.
This can result in serious miscarriages of justice, as an ongoing case of mine shows.
Domestic Violence Wrongful Arrest
My client Mr X (details withheld for confidentiality reasons) believes that his arrest by the police was a direct consequence of his ex-partner’s wish to secure Legal Aid funding for legal help with custody arrangements for their (then) four-year-old son.
Mr X and his partner broke up. He wanted regular contact with his son. Unfortunately, his ex-partner refused to attend mediation and routinely cancelled informal arrangements. So in June 2014 my client lodged an application to Court to formalise access.
At the first Court hearing in July 2014, my client’s ex-partner agreed to mediation and the hearing was adjourned.
But in mid-August 2014 the ex-partner went to her local police station to report an alleged assault by my client that she said occurred on 15th December 2012.
She alleged that during an argument Mr X kicked her leg resulting in a broken fibula.
She told police that she had attended her local hospital for medical treatment and that to protect her then partner Mr X, she provided an entirely different account to hospital staff, stating that she was injured falling over her dog.
The Officer dealing with the complaint made an entry on the police system that police local to my client should arrest him.
On 15th August 2014 it was recorded that Mr X’s local force had declined to arrest because of the delay between the alleged incident and the complaint.
Instead, on 18th August 2014, the officer assigned to the case arranged with Mr X for him to attend a police station at 6pm for an interview under caution. The relevant entry on the police system contains no reference that the officer in charge was contemplating arrest.
My client attended the police station on the date and time agreed.
Mr X was shocked and confused when, instead of a voluntary interview, he was arrested in the station foyer on suspicion of Grievous Bodily Harm.
During interview under caution, Mr X denied any involvement and said that the assault complaint was a complete fabrication.
He was later released on bail pending further enquiries until 24th September 2014.
On 1st September 2014, the officer in charge recorded on the police computer system:
“I am concerned that even with medical evidence it will not pass the full code test as there is very little prospect of conviction due to the time delays and the complainant told the hospital and her family that the injury was caused by falling over the dog”.
Despite this my client was subsequently re-bailed on 29th September 2014, 21st October 2014, and 17th November 2014.
On 31st October 2014 the Crown Prosecution Service recommended no further action.
Abuse of Legal Aid System
My client should never have been arrested.
Following his experience, he lodged a complaint against the police. Somewhat unusually, but, no doubt, recognising the strength of his argument, Mr X’s complaint of unlawful arrest was upheld.
This was on the basis that there was no necessity to arrest him as he attended voluntarily for the interview on 18th August 2014.
On the back of this decision, Mr X contacted me to bring a civil claim for compensation against the police.
Despite his complaint being upheld, as expected with this particular police force, liability was denied.
I am now in the process of instituting Court proceedings and have no doubt that his claim will succeed and he will be compensated.
But no matter how much compensation he receives (and the level of compensation available is regrettably modest), I suspect this will be of little comfort to my client. He has suffered:
the embarrassment and humiliation of arrest;
the stain on his good character; and
his life being put on hold for three months while on police bail.
Significantly, the arrest (based on false allegations) meant that the ex-partner got Legal Aid for expert help in the family proceedings to fight his application for regular contact with his son.
My client had to pay his family lawyers privately which added to the strain in a matter of great personal importance.
I hope that other people will not suffer like my client and that malicious accusations of domestic violence are not being used in a cynical attempt to “play” the Legal Aid system.
My concern however is that the recently reported HMIC figures suggest that this is exactly what is happening.
Contact me for help with your civil action against the police using the online form below or at www.dpp-law.com.
As of 1 May 2015, in accordance with Section 9 of The Police (Conduct) (Amendment) Regulations 2015, police disciplinary hearings “shall be in public” (subject to the discretion of the person chairing or conducting the hearing to exclude any person from all or part of the hearing). That change, along with others, was aimed to create a “more robust, independent and transparent” police disciplinary system.
Has it worked?
The Law in Public Hearings
What does “in public” mean? The OED definition is “openly, for all to see or know”.
The concept of open justice has long been recognised.
In Scott v Scott (1913) AC 417, Lord Shaw of Dunfermline said “that publicity in the administration of justice ….(is) one of the surest guarantees of our liberties” and cited passages from Bentham and Hallam in support of the general thesis that in Bentham’s phrase “Publicity is the very soul of justice”.
The principle is just as important now as it was then; in Hodgson v Imperial Tobacco Limited (1998) 1 WLR 1056, Lord Woolf MR relied upon the following passage from Sir Jack Jacob’s Hamlyn lecture, The Fabric of English Civil Justice (1987) where he said:
“The need for public justice, which has now been statutorily recognised, is that it removes the possibility of arbitrariness in the administration of justice, so that in effect the public would have the opportunity of ‘judging the judges’: by sitting in public, the judges are themselves accountable and on trial”.
An application of the principles in Scott v Scott is to be found in McPherson v McPherson (1936) AC 177, a decision of the Privy Council’s in a Canadian case. There the undefended divorce of a well-known politician was conducted not in a court room (though there were empty courts available) but in the Judges’ Library. There was direct public access to the courts, but not to the Judges’ Library. It could be approached from the same corridor which encircled the building and provided direct access to the courts, but only through a double swing door, one side of which was always fixed shut, and on which there was a brass plate with the word “Private” in black letters on it. Through this swing door was another corridor, on the opposite wall of which was a further door to the Judges’ Library. Both this internal door and the free swinging half of the double doors were in fact open during this hearing. The question for the Court was:
“… whether those swing foots with ‘Private’ marked upon one of them were not as effective a bar to the access to the library by an ordinary member of the public finding himself in the public corridor as would be a door actually locked”. (p198)
Their answer, while accepting that no actual exclusion of the public was intended, was that:
“… even although it emerges in the last analysis that their actual exclusion resulted only from that word ‘Private’ on the outer door, the learned judge on this occasion, albeit unconsciously, was ……, denying his court to the public in breach of their right to be present, a right thus expressed by Lord Halsbury in Scott v Scott: ‘every court of justice is open to every subject of the King’.” (subject to any strictly defined exceptions).
In Storer v British Gas plc (2000) 2 All ER 440, the Court of Appeal decided that this fundamental principle was no less important in employment proceedings than in other proceedings. In that case, Mr Storer brought a claim against his employers. At a hearing at the Industrial Tribunal Centre, his claim was dismissed. On appeal, Mr Storer argued that this decision should be quashed on the basis that the hearing had not been held in public.
The relevant facts were as follows:
At the Centre, “12 Industrial Tribunals were sitting on that day. The lists of cases to be heard in each were on public display. There was also a list of floating cases, i.e. cases which had not been allocated to a court, but would be heard as and when a court became available. Mr Storer’s case was one of these. As the morning wore on, it seemed clear that his case would not be reached unless it was heard in a room not normally used as a court-room. One was available – namely the office of the Regional Chairman, as that position was unfilled at the time. As a Judge was available, and as the room was available, the court authorities took the decision to have the hearing there. They did not consult Mr Storer on this. The parties (including Mr Storer’s wife) were escorted there by a guide. No member of the public accompanied them. It is accepted that Mr Storer’s application for leave to appeal to the Court of Appeal accurately summarises the geographical situation of the room that was used:
(a) The hearing was held behind a locked door which separated the area to which the public had access from that part which the learned Judge described as the ‘secure area’ on the second floor of the Tribunal office. This ‘secure area’ [is] protected by the door locked with a bush-button coded lock [which] provides the only means of access to the large open plan office off which the Regional Chairman’s room is located.
(b) This locked door is clearly marked with a large sign stating ‘Private’ in black letters on a white background.
(c) All access stairs from the public areas on the ground and first floors to the second floor where [the] locked door is located are marked clearly with a large sign stating”
TO PUBLIC BEYOND
The Court concluded that the hearing had not been held in public, even if, in fact, no member of the public was physically prevented from attending. The obligation to sit in public was fundamental, and the tribunal had no jurisdiction to conduct itself in this way.
How Public are Police Disciplinary Hearings?
Both my client Mr E T, and myself, have first hand experience of the lengths to which the police will go to follow the letter of the law while ignoring the spirit of it in public police disciplinary hearings.
Following an incident that occurred on 14th February 2013, my client Mr E T lodged a complaint to the Metropolitan Police. The following description is based on his version of events.
Mr T was driving home from work when he was stopped by a police carrier van. Mr T got out of his car. He was told that he had been driving erratically and asked to hand over his car keys. He refused.
Suddenly, one of the officers grabbed hold of Mr T’s left arm and a struggle began. Many other police officers from the police van then stormed out and forcibly moved Mr T towards the pavement.
In doing so, Mr T fell to the ground where he banged his head.
Mr T, with five or more police officers on top of him, was then handcuffed and leg restraints were strapped on him.
Mr T was then told that he was under arrest for breaching s.5 of the Public Order Act. So as to further justify arrest, one police officer then said that he ‘could smell cannabis’ in Mr T’s car.
Mr T was then transported to a police station. En route, Mr T said to both police officers that he was going to sue them for what they had done. An officer said in response “We’ll just say that you assaulted a police officer”.
Mr T was then kept in custody until the next day and after he was interviewed for the alleged offences. Mr T was then bailed to return to the police station a few weeks later.
On his return, he was charged with assaulting a police officer and resisting arrest.
There was no further action against Mr T in respect of his driving (the reason for his stop), the cannabis allegation or breaching s.5 of the Public Order Act.
At the first opportunity, Mr T pleaded not guilty and his case was eventually listed for trial nearly a year later. At Trial, the CPS without notice or reason decided to discontinue.
Police Disciplinary Hearing Access
After investigating Mr T’s complaint the Professional Standards Bureau decided to bring gross misconduct proceedings against three of the officers. The police misconduct hearing finally went ahead last week in the Empress State Building, South West London, nearly three years after the incident.
Mr T is intent on bringing a civil claim against the Metropolitan Police for unlawful arrest, assault and malicious prosecution. To find out how the officers performed, I sent my colleague to sit as watching brief.
My colleague met up with Mr T outside the Empress State Building and they went into reception together. Having been frisked by security, Mr T was ushered upstairs to the hearing room. My colleague was denied access as his name was “not on the list”. My colleague queried this given that the hearing was “in public”. He was told it didn’t matter, his name must be on “the list”.
My colleague asked to speak to the Investigating Officer and explained his role. Pursuant to Regulation 30 (3) of the Police (Conduct) Regulations 2012, Mr T was (irrespective of any argument that this hearing was allegedly being held in public!), entitled to attend the hearing accompanied by one other person as an observer and my colleague was that person. The Presenting Officer promptly authorised entry.
My colleague was then escorted to the hearing. Here’s what appeared on the hearing room door:
I must say that I found my colleague’s experience intriguing.
Metropolitan Police hold their misconduct hearings at Empress Buildings. According to their website, “any member of the public or press wishing to attend a misconduct hearing may apply to do so but due to limitations on space and capacity, attendance at the hearing will be administered and booked by application”.
Should you be interested, you must then complete and submit an application providing your full name, address and date of birth.
The lucky few successful attendees are then sent a confirmation email but admission to the hearing is conditional. They must produce their personal registration letter (confirmation email) that was issued by the hearings unit and supporting photographic identification (passport, and/or driver’s licence), along with proof of address (ie a recent utility bill).
Needless to say, my colleague reports that no members of the public attended any one of the five days of the hearing.
Police Disciplinary Hearings Restrictions
Having checked out the websites for most of the other police forces in England and Wales, the Metropolitan Police’s conditions are fairly standard. There are however a few quirks here and there.
West Yorkshire Police state that notice of a public hearing will be made not less than five days prior to the hearing but that applications to attend “must be submitted within 48 hours of the notice being published”. This could effectively be a three-day window.
Most stress that space is limited. Thames Valley Police are bold enough to announce that “available space will limit numbers of the public attending to six people including members of the public”.
Should you be fortunate to apply in time, be selected, and have the necessary proof of ID with you, there’s still no guarantee that you will actually sit in on the hearing. Some like Gwent Police openly admit that “The Public/media will be given access to a room at Gwent Police HQ” which will broadcast “a live feed of the hearing”.
Consequences of Police Policy
To increase public trust in our police force, the police should freely and unconditionally open their doors to members of the public at disciplinary hearings. Otherwise they are in danger of appearing to be (literally) a closed shop and to encourage an assumption that police officers judging other police officers do not do so in a fair, unbiased and transparent way.
For example, Deputy Chief Constable of Essex Police Derek Benson claims that “Our intention will be to hold these hearings in public and make them as accessible as possible.”
But his force’s restrictive conditions (shown here) suggest to me that Essex Police (along with other forces) are paying only lip service to the concept of holding disciplinary hearings in public. In reality, they are putting many obstacles and discouragements in the way of the interested public.
This undermines the reputation of the police as being unbiased and effective in the investigation of crimes or misdemeanours committed by their own.
In the case of Storer v British Gas plc, the coded door lock was an actual physical barrier which prevented all access to the public. There was, the Court said “no chance of a member of the public dropping in to see how Industrial Tribunals (as they were then) were conducted, and the fact that none attempted to does nothing to show that this Tribunal was conducting the trial of the preliminary issue in public”.
What would the Court of Appeal make of the various barriers being put up by police forces around the country?
Contact me for help with your civil actions against the police using the online form below or here.
I have just settled a disturbing Taser assault case for Cornelius Thomas (details used with permission) against West Midlands Police.
I’m concerned about Mr Thomas’ personal experience, and also what this case says about police use of Tasers.
Taser Assault of Mentally Ill Man
Cornelius, who was aged 35 at the time of the incident, has a psychotic illness which has been diagnosed as bipolar affective disorder.
His condition first appeared in 1999 and he has received help from mental health services from 2001 onwards due to it repeatedly recurring.
On Friday 10 June 2011, he sadly suffered a deterioration in his mental state triggered by a combination of life stressors and a failure to take his medication.
After a mid-afternoon visit by his mental health doctor, Cornelius’ mental health team decided that he should be sectioned under the Mental Health Act. The team requested police assistance and an ambulance as this involved taking Cornelius to a psychiatric hospital unit and depriving him of his liberty.
Four Officers from West Midlands Police were assigned and, that evening, met the mental health team outside Cornelius’ home in Birmingham.
Cornelius, who was unaware of the decision to section him, had been out of the house with his 8-year-old daughter. At about 8pm he arrived home in his car with his daughter safely in the back seat. He saw two police cars and an ambulance near his house.
What happened next is a matter of dispute but Cornelius maintains that he was manhandled and then Tasered multiple times despite being non-aggressive and simply trying to escape from the officers into the safety of his own home.
In turn, West Midlands Police suggest that Cornelius was violent and uncooperative and in their Defence which was filed at court, admit that Cornelius was forcibly pulled from his car and Tasered four times:
in his chest, then
to his upper torso, then
to his torso again, before
finally in his back.
On each occasion he was Tasered, Cornelius said he felt a surge of electricity, intense pain and fear.
Cornelius told me that each Taser assault resulted in him falling to the ground suffering multiple minor soft tissue injuries, but he managed to get up and move a little closer to his front door.
On the final occasion that Mr Thomas was Tasered, he says that both his hands were in full view and that he was no threat. At this point Cornelius had his back to the police, his left hand on the door handle, and his right hand on the keys in the lock. Despite this, he was electrocuted again.
After the fourth Taser assault brought him to the ground Cornelius was handcuffed and transported to hospital where he was de-arrested and detained under Section 2 of the Mental Health Act 1983.
Following a medical examination, a Taser barb that had become embedded in the skin of his chest was removed.
Police Taser Assault Compensation Claim
Cornelius initially instructed non-specialist local solicitors who formally submitted a claim saying that West Midlands Police were negligent in their decision to deploy Tasers.
Following investigation, liability was denied, the Defendant maintaining that use of the Taser was “lawful, justified and proportionate in the circumstances”.
In response, his then solicitors advised Cornelius that the prospects of success were not good enough to “justify …proceeding further” and promptly closed their file.
In my opinion the claim had been poorly framed and investigated.
Cornelius gave a very credible account of what had happened. On his version of events it appeared to me that the officers had acted with unnecessary aggression and coercion rather than care and compassion.
I thought Cornelius had good prospects notwithstanding what his previous lawyers described as “the glaring inconsistencies between the account given by Mr Thomas and …. the Police Officers involved at the time of the incident when he was sectioned under the Mental Health Act”.
My confidence in Cornelius and his Taser assault claim has now been proven. He has agreed to an out-of-court settlement of substantial damages from West Midlands Police following the issue of court proceedings.
I have recently commented on statistics that suggest that black people are three times more likely than white people to be involved in Taser incidents.
The research shows the electric stun gun was drawn, aimed or fired 38,135 times in England and Wales over five years.
In more than 12% of cases Tasers were used against black people, who make up about 4% of the population.
I have long maintained that there is a growing trend for the unnecessary and unreasonable use of Tasers (see here, for example).
This latest research proves a disproportionate use against a certain ethnic group.
Of that community, can it also be said that there is yet further disproportionate and excessive use of Tasers against those with mental health issues?
Matilda MacAttram of the campaign group Black Mental Health UK, maintains that there is emerging evidence that police are using Tasers against people with mental health problems, particularly those from African-Caribbean communities.
She is quoted as telling the BBC, “There’s an increasing amount of data, both anecdotal and also concrete, which show this supposedly “non-lethal” weapon is being used against people who are in a very vulnerable state”.
Cornelius Thomas would, no doubt, agree.
Contact me for expert advice if you have suffered a Taser assault through no fault of your own.
Sadly, my comments in the conclusion of the earlier post about a perception of bias have been borne out by today’s proceedings.
The disciplinary panel at today’s tribunal was made up of two senior police officers, Assistant Chief Constable Marcus Beale (Panel Chairman), Detective Superintendent Blackburn, and an independent lay individual, David Bowden.
Police Disciplinary Tribunal Finding
After consideration of the facts and on the basis of the Officers’ record, the disciplinary panel decided that their behaviour was misconduct only rather than gross misconduct.
I am dismayed by this verdict.
Is it right and proper that these two men, who admitted their disgraceful misconduct, continue to be employed as police officers for West Midlands Police?
After much publicity, certain changes have been introduced to the way that police officers are disciplined so as to create a “more robust, independent and transparent” police disciplinary system.
One of the changes introduced is holding misconduct hearings in public. As I have previously said, that’s a start.
Sadly for Ms Faragher and so many others, the system hasn’t changed materially in that the police continue to prosecute, defend, and sit in judgement on themselves.
Disciplinary Tribunal Punishment
Assistant Chief Constable Marcus Beale said the voicemail comments fell “substantially below what is expected of a West Midlands Police officer”.
However, he added: “The panel assess that the breach does not require the full range of sanctions, and that it amounts to misconduct.”
The punishment? Both Officers have been issued with written warnings.
My client, who attended both days of the police disciplinary tribunal, is extremely disappointed with not only the process, but also the findings, and result.
As a woman who was an alleged victim of domestic violence, all she wanted was to be treated with respect and professionalism. After being treated so badly by the two Officers she feels that the disciplinary tribunal has added insult to injury by letting the Officers off the hook.
She is also concerned that this sends a message about how West Midlands Police treat victims of crimes (in particular domestic violence against women) and that others might be put off reporting crime.
The panel at the police disciplinary tribunal had an opportunity to right a wrong and deal with these concerns. They failed.
Ms Faragher is now en route to ITV studios to be interviewed. The panel at the police disciplinary tribunal and two Officers may think that this matter is now settled. But for her, this story is not over.
To recap, my client Alex Faragher called West Midlands Police to lodge a complaint of domestic violence. The Officers assigned to her case, subsequently called her mobile to discuss the allegation. When the call went to answer phone, they inadvertently left an expletive ridden voice mail.
In the voice mail, you can hear these two men calling this victim of domestic violence a “f….. bitch” & a “f….. slag” before suggesting that they “go back, f.…… draft the statement out ourselves and then just get the bitch to sign it”.
Ms Faragher lodged a complaint about the voice mail and the Officers’ subsequent behaviour at the Police station as regards the preparation of her statement of evidence.
Police Misconduct Hearing
I am pleased to report that at a public hearing today, and despite the best efforts of the force’s Professional Standards Department during the course of the investigation to dilute the misconduct so that it related to the indisputable voice mail only, the Officers admitted all allegations of misconduct, i.e. in relation to the voice mail and conduct at the Police Station.
Apparently recognising the seriousness of the situation, one of the officers, PC Guest, repeatedly apologized, according to today’s newspaper reports.
Gross Misconduct in Police Matters
The issue for the tribunal (made up of two senior police officers and an independent lay person) to now decide is whether the Officers’ conduct amounts to just misconduct or whether their behaviour is so serious as to qualify for gross misconduct. So, what’s the difference?
Misconduct is defined as “a breach of the Standards of Professional Behaviour”.
Gross Misconduct is defined as “a breach of the Standards of Professional Behaviour that is so serious as to justify dismissal”.
But, when you recognize that this an employment matter at its heart, things become clearer.
Gross misconduct in that context is either deliberate wrongdoing or gross negligence by the employee (police officer) which is so serious that it fundamentally undermines the relationship of trust and confidence between the employee and employer (Chief Constable).
Today, barristers employed by both officers made representations to the panel that the admitted misconduct was simply that, misconduct. The problem for the Officers is that:
the eyes of the world (given that the hearing is in public) are upon them, and
in my opinion, the behaviour (as captured on voice mail) is so extreme that it has brought the force into disrepute.
A finding of gross misconduct and dismissal without further notice must be the only possible sanction.
We should know tomorrow.
Read my blog for more insights into matters involving the police.
At 11a.m. on Monday 26 October, two Police officers of West Midlands Police face a disciplinary hearing for gross police misconduct.
The hearing will take place in public. Police disciplinary hearings became public (subject to certain exceptions) on the 1 May 2015. That change, along with others, was aimed to create a “more robust, independent and transparent” police disciplinary system.
But have the reforms into investigations of police misconduct worked? Read on to find out why I think not.
Police Misconduct Allegation
The two West Midlands Police officers due to be brought to account on Monday face an allegation lodged by my client, Alex Faragher in January 2014. (Alex gave me permission to use her details.)
Ms Faragher’s complaint centered on an incident that happened during an enquiry into an alleged domestic violence assault.
Two male officers attended upon her shortly after the incident but Alex was too upset and distressed to provide full details. The officers subsequently tried to contact Alex on her mobile phone but were unable to get through. Accordingly, they left her a message but then failed to hang up properly. Their subsequent conversation was then mistakenly recorded.
In the two-minute recording (an extract of which you can listen to here) one officer allegedly says to the other, “F……. bitch, I specifically said, “you’re not going to give us the run around are you?” “No I want to press charges” she said. “F……. slag”.
A second officer then referred to writing their own version of her witness statement after her boyfriend had been arrested for assault. He can allegedly be heard saying, “Either that or the only other thing we do is go back, f….ing draft the statement out ourselves and then just get the bitch to sign it”.
Later that evening, unaware of the voice recording on her phone, Ms Faragher went to Sutton Coldfield Police Station to give her statement to the same two officers. Ms Faragher believes that her treatment at the Police Station was equally unprofessional because the officers did not take her dyslexia into account. They prepared a statement in her name and on her behalf and persuaded her to sign it without her first being permitted to read it and further because the officers then ignored her requests to amend particular parts of her statement.
It was only upon her return home later that evening that she both saw and heard the voicemail on her phone. After hearing it, she felt “victimised and humiliated”. She said, “They turned up after 6:30pm and tried to call me and mistakenly didn’t hang up. I picked up the conversation they then had in the police car that was recorded as a voicemail. I could not believe what I was hearing.” she said.
Police Misconduct Complaint
In line with the policy set by the Independent Police Complaints Commission (“IPCC”), one would assume that the resulting investigation would take a relatively short period of time. When Ms Faragher first complained she gave the police a copy of the recording along with a detailed account of what had happened. She has since co-operated fully with the investigators.
Despite this, it took an investigator from the Force’s Professional Standards Department six months to finalise their investigation and produce their Complaint Investigation Report.
The Report was inadequate, even after all that time and my client’s help. Although both officers were interviewed under caution on the 3 April 2014, the Report failed to identify the officers’ response to the recording and answer a crucial question: do they accept that it’s them?
Both officers did however provide an account of subsequent events at the Police Station. Both maintained that they had acted properly at all times and any allegation of misconduct (in this respect) was denied.
After consideration, the investigating officer decided to not uphold this aspect of the complaint on the basis that there was no evidence available to corroborate either Ms Faragher’s account or the officers’ account.
But the Investigating Officer concluded that the officers had a case to answer in relation to the allegation that they had spoken about Ms Faragher in a discourteous and disparaging manner. This part of the complaint was upheld and will be addressed at the misconduct hearing.
Complaint to the IPCC
Whilst Ms Faragher was pleased that the officers were to be brought to account in relation to the taped conversation, this was only part of her complaint and the fact remained that the officers’ treatment of her at the station was unprofessional.
The decision of the investigator was, in my opinion, perverse, and designed to protect the officers from further scrutiny and a form of damage limitation.
On my advice, she appealed to the IPCC, the independent police watchdog.
On review by the IPCC in December 2014, it was found that whilst there was no evidence available to corroborate either the officers’ account or Ms Farragaher’s account of events at the police station, the taped recording added weight to my client’s complaint, particularly the comment that the officers would “go back, f….. draft the statement out ourselves and then just get the bitch to sign it”.
Accordingly, the IPCC case worker found that on balance, Ms Faragher’s complaint held “more credibility” and therefore upheld the appeal and decided that there was a case to answer for gross misconduct for both the recording and what happened at the police station.
The police disagreed.
In March 2015, West Midlands Police told the IPCC that they did not accept its recommendation that the officers face a Gross Misconduct hearing about events at the Police station.
In May, the IPCC stated that their original decision held and that West Midlands Police should include the additional complaints.
As a result, both will be addressed at Monday’s hearing.
On the face of it, West Midlands Police are harbouring two delinquent employees who should be dealt with as soon as possible.
But it has taken nearly two years from when Ms Faragher lodged her complaint to get them to appear before a Gross Misconduct hearing. All the time those officers have continued to work, although they are now reported to be on restricted duties in “non-public facing” roles.
Natural Justice demands that investigations into alleged police misconduct are full and fair, and that disciplinary proceedings are finalised in an expeditious manner.
Maintaining a system where police investigations are undertaken by officers in the same force leads to a perception of bias. And because there is no limit on the extent of investigation process or the time allowed, the most that the IPCC can demand is that the investigation process “should be proportionate to the nature of the complaint”.
The biggest stumbling block in assuring public trust and accountability in the police is the sense that internal discipline is not implemented effectively.
Cases like Alex Faragher’s show that, while reforms like public hearings may help, there is much more to do.
Contact me for help with you police misconduct matter using the online form below or via my firm’s website.
The research shows the electric stun gun was drawn, aimed or fired 38,135 times in England and Wales over five years.
In more than 12% of cases Tasers were used against black people, who make up about 4% of the population.
I have long maintained that there is a growing trend for the unnecessary and unreasonable use of Tasers (see here, for example). Now, we have concrete evidence of their disproportionate use against a certain ethnic group.
One theory is that the police, like the rest of us, are subject to “confirmation bias” which is defined in Science Daily as the “tendency to search for or interpret information in a way that confirms one’s preconceptions”.
If police officers have the perception that black people are more likely to be involved in criminal behaviour, that they will attempt to evade capture, or forcibly resist arrest, they will consciously or unconsciously seek out proof. Using Tasers during an arrest is just one way of justifying their (unfounded) assumptions.
Taser Assault on Innocent Black Man
An example of police confirmation bias against black people is the case of my client Stephon McCalla (details used with his permission and based on his version of events).
Stephon is a young black man who had never been in trouble with the police. He was walking to his local gym on a sunny day in June 2010 when, unbeknown to him, local police were actively looking for a black suspect who had raped a student at knifepoint.
Mr McCalla was stopped by an officer with a dog who told him that they were looking for someone with his profile. Stephon gave his name and address and told him he was heading to the gym. The Officer called for backup. Stephon understandably felt uneasy.
10-15 minutes after he had first been stopped, several police vehicles arrived and positioned themselves so as to box Stephon and the dog handler in. Seven white officers alighted. Stephon was extremely alarmed by developments.
Four of the officers approached. At this stage, Stephon had his thumbs in his back pockets with his arms hanging down. One officer told Stephon to “Give me your hands”. Stephon did so and as he did, the officer took hold of his forearm and suddenly said, “He’s going to attack”.
The officer grabbed Stephon’s wrist and tried to force his arm behind his back and handcuff him. Stephon could not believe what was happening and having done nothing wrong and having been given no explanation, resisted.
In response, other officers applied a succession of knee strikes and blows to his body and then five or six punches to his face. Eventually, Stephon felt his leg about to give way and as he began to fall to the ground, he was Tasered to the back. His body shuddered and he fell heavily onto his right shoulder.
Following his arrest, Stephon could see the officers in discussion. They were holding a picture up on a piece of paper. He could see that the picture was of a black man’s face. The officers held it up and were looking at Stephon and looking back at the photograph. One officer said, “We’ve got the wrong man.”
Despite this Stephon was arrested and taken to a local police station. Upon arrival, he still had two of the Taser barbs embedded in his back. A police nurse and Doctor tried to remove the Taser barb from his body but concluded that the barb was embedded so deeply that Stephon would have to attend hospital.
After a short while, Stephon was taken to hospital where with some difficulty, the barb was extracted and stitches applied.
Mr McCalla was taken back to the police station where he was eventually interviewed.
The police told him that he had been stopped because he bore a strong resemblance to an armed man wanted for a serious offence but that because of how he had reacted, he had been arrested for a public order offence.
Stephon was eventually released on police bail having spent over 14 hours in custody. Several weeks later, he was advised that no further action was to be taken against him.
With my help, Stephon brought a civil action against the police. Liability was robustly denied. Notwithstanding this denial, Stephon’s claim settled for substantial damages plus costs together with an apology following the issue of court proceedings.
Addressing Confirmation Bias
It appears that the police’s confirmation bias that black men like Stephon are dangerous individuals led to this brutal and unjustified Taser assault.
Stephon’s only “crimes” were being black and in the wrong place at the wrong time. His understandable and perfectly reasonable resistance to an unlawful arrest led to the disproportionate use of force, and especially the unnecessary discharge of a Taser when he had already been subdued and was falling to the ground.
The police then showed their true colours by arresting Stephon for a (bogus) public order offence because of how he had reacted, convincing themselves that his conduct was unlawful, and fitting the confirmation bias narrative. (s.5 of the Public Order Act 1986 says that a person is guilty of an offence if he “uses threatening (or abusive) words or behaviour, or disorderly behaviour”.)
In light of today’s BBC report and Mr McCalla’s case it seems to me that the police still have a long way to go to address what Sir William McPherson described as an “institutional racist” organisation in his 1999 report about the Stephen Lawrence inquiry. They need to address confirmation bias as well.
Contact me for help with your claim against the police using the online form below or via my firm’s website.
You’d expect that senior police officers would think about the law when authorising a person’s detention under the Police and Criminal Evidence Act after an arrest by a more junior officer. They are more experienced and have more training after all.
Unfortunately, as the two cases below show, the ability of custody officers and other senior officers to apply their minds varies greatly, which can lead to people being unlawfully arrested and detained. As I explain below, this lack of thought costs us all.
Getting the Police and Criminal Evidence Act Right- Dorset Police
The Police and Criminal Evidence Act 1984 (as amended) (“PACE”) introduced a number of safety checks to ensure that following an individual’s arrest, s/he is processed fairly and within the law. An individual’s arrest and detention should be reviewed on a regular basis, particularly given that the police must justify any detention minute-by-minute.
It is therefore heartening to come across a case where a custody officer does his job and objectively assesses the lawfulness of an arrest and grounds of detention. Step forward Sergeant A of Dorset Police (name withheld for privacy reasons).
Sergeant A was the custody officer on duty when my client Mr X (again, name withheld for privacy reasons) arrived in handcuffs after his arrest for obstructing police.
Mr X had been out with a friend who, at the end of the evening, offered to give him a lift home. Neither man had been drinking. En route, the car was stopped by uniformed traffic police.
Mr X’s friend, the driver, was requested by the traffic officers to switch off his engine and step out of the vehicle. He refused.
The doors of the vehicle had been locked and the traffic officers’ attempts to persuade the driver to step out of his vehicle proved unsuccessful. The officers therefore requested further assistance.
Two more police officers arrived at the scene.
One of them warned the driver that unless the door was opened voluntarily, he would use his baton to break into the vehicle. In the absence of any co-operation by the driver, the officer then struck the offside window of the vehicle on a number of occasions before the window shattered.
The act of breaking the window succeeded in persuading the driver to unlock and exit the vehicle. Upon doing so, both he and my client were arrested for obstructing a police officer in the execution of his duty.
Both men were taken to Bournemouth Police Station. There the arresting officer advised Sergeant A, the custody officer, of the arrest circumstances.
The Law About Obstructing a Police Officer
Section 89(2) of the Police Act 1996 states it is an offence to wilfully obstruct a constable in the execution of his duty, or a person assisting a constable in the execution of his duty.
The legislation states that a person obstructs a constable if he prevents him from carrying out his duties or makes it more difficult for him to do so.
Crucially, the obstruction must be ‘wilful’, meaning the accused must act (or refuse to act) deliberately, knowing and intending his act will obstruct the constable.
There was no evidence that my client Mr X was ever asked to assist the officers in gaining the driver’s cooperation. He was never asked to:
disclose the driver’s name;
give an account; or
open his door.
Mr X had simply sat passively in the vehicle at all times.
Applying the law correctly, the Sergeant refused to authorise Mr X’s detention on the basis that ‘no positive acts’ had been performed by my client to prevent the officers from doing their duty.
He was released from custody shortly thereafter.
Compensation for Unlawful Arrest
Imprisonment is from the moment someone’s liberty is interfered with (not, for example, when detention is authorised at the police station).
Even though my client was released by the custody sergeant within a few minutes of his arrival at the police station, he was entitled to be compensated from the time of his arrest to the time of his release, and for the force used against him (he was handcuffed as soon as he got out of the vehicle).
I recovered £2,000 plus costs for Mr X, which was more than reasonable in the circumstances.
Getting it Wrong- Kent Police
Compare the professionalism of Sergeant A of Dorset Police with senior officers of Kent Police.
One evening in April 2014 my client Mr M had an argument with his wife. His wife called the police for support and because she had no one else to call. She was hoping the police would mediate. Upon arrival, officers spoke with both Mr M and his wife.
My client’s wife told the police that she and Mr M had argued but that no violence had occurred. She did, however suggest that she had been assaulted by her husband over a year earlier after an argument about the children. The police told Mr M he had to leave the home.
He refused, and at about 8 p.m. the officers arrested my client for common assault.
The Law to Justify Arrest in a Common Assault
An offence of common assault is committed when a person either assaults another person or commits a battery.
An assault is committed when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force.
A battery is committed when a person intentionally and recklessly applies unlawful force to another.
On the basis of my client’s wife’s report, it could be argued that the officer had reason to suspect my client had (on his wife’s account) committed a common assault a year before.
But, by reason of s.127 of the Magistrates Court Act, any prosecution for common assault must be brought within 6 months from the time when the offence was committed.
So, the offence was not made out, meaning that Mr M’s arrest and detention would be unlawful. Unfortunately, the arresting officer did not consider this before proceeding.
Senior Officer Errors
Shortly after arrest, Mr M was taken to North Kent Police Station and put before Sergeant C.
Section 34(2) of PACE states that if a custody officer becomes aware that the grounds for holding a person no longer exist then he must order his release.
Only the custody officer has the authority to release a person from police detention.
Sergeant C was given the circumstances of arrest which he recorded as “common assault in February 2013” and, at approximately 8.30 p.m. he authorised detention. In doing so the custody officer also failed to identify the (obvious) time limit on prosecution.
Police and Criminal Evidence Act Protection
PACE doesn’t stop its guidance after the custody officer justifies initial detention.
Perhaps anticipating mistakes by senior officers, the lawmakers built in a number of safety nets to ensure that only people who should be in custody stay there.
Not later than 6 hours after detention is first authorised at the police station, an Inspector is obliged to carry out a review to determine that the grounds for detention remain.
Section 40 of PACE states that the review officer is responsible for periodically determining if a person’s detention, before or after charge, continues to be necessary. This requirement continues throughout the detention period.
Enter Inspector K who at 11:13 p.m. carried out the first custody review.
You would think that a senior officer with the rank of inspector would identify the historic nature of the “offence” and realise that it was too late to prosecute. Sadly, Inspector K raised no concerns and allowed Mr M’s continued detention.
Later the custody officer, Sergeant C, was replaced by Sergeant R. Surely he would notice a problem? No, he too failed to spot that the alleged offence was time-barred because of the statutory time limit.
PACE ensured yet another custody review (not later than 9 hours after the first review). The senior officers dutifully ensured it was done.
Step forward Inspector S. At 7.15 a.m. he too carried out a review and yes, he too failed to spot the time limit problem.
Mr M asked for the services of a duty solicitor. Enter the heroine of this story: Ms L of TBW Solicitors.
Ms L considered the custody record and immediately spotted the problem: the alleged offence which the arresting officers relied upon was time-barred.
She immediately made representations and within minutes, Mr M was released. In all, Mr M spent approximately 19 hours in custody.
I am confident that he will receive significant compensation, as he should considering the appalling errors made by no fewer than five Kent Police officers which led to him being unlawfully arrested and detained.
Lip Service to the Police and Criminal Evidence Act
Mr M’s case shows that no matter how many safeguards lawmakers introduce, they can’t legislate to make police officers think.
The Police and Criminal Evidence Act (as amended) isn’t some obscure law. It’s a cornerstone of criminal law as much of it deals with arrest and detention. Every police officer receives extensive training on it, and senior officers such as custody sergeants work within its rules every day.
But it’s one thing to follow the time-limits in the PACE guidelines and pay lip service to the process, it’s quite another to think about why the person in custody is there in the first place.
As comedian Ron White says, “you can’t fix stupid”.
If you want help claiming compensation against the police contact me using the form below or via my firm’s website.
I read on the BBC website today that Christopher Jeffries, the man wrongfully accused of the murder of Joanne Yeates in December 2010, has accepted a written apology and a small amount of compensation for damage to his home following the police search.
Nick Gargan, the Chief Constable of Avon & Somerset Police (shown below) has written to Mr. Jeffries and was interviewed on camera confirming that:
Mr. Jeffries is no longer a suspect in the case, and
that the police regret the suffering he experienced as a result of them not making it clear that Mr. Jeffries was no longer a suspect on his release from bail on 5 March 2011, and
inviting Mr. Jeffries to meet with him to ‘discuss any lessons’ the police could learn from his treatment and experience.
However, no compensation has been paid for Christopher Jeffries’ claimed ‘false imprisonment, breach of human rights, and trespass to person and property’.
False imprisonment and reasonable suspicion
As I outlined in a blog post I wrote for Charon QC last year, Mr. Jeffries’ case for false imprisonment was on thin ice from the beginning due to the very low threshold the police need to meet to justify an arrest. Having a ‘reasonable suspicion’ to arrest means merely something more than a hunch, but less than formal proof.
It would appear that, nearly three years on, Mr. Jeffries has accepted the strength of the police’s defence to his false imprisonment claim. No doubt this will be very disappointing for him.
Alternatives to compensation in an actions against the police claim
The failure of such a high-profile claim for false imprisonment shows how difficult actions against the police claims can be. Despite this, as a solicitor who specialises in actions against the police, I have successfully recovered compensation for many people against police forces throughout England & Wales, and continue to represent numerous clients in their false imprisonment claims. You can read some case reports of police claims I have successfully pursued here.
But these cases cannot be measured purely in financial terms. Often my clients seek not only compensation, but like Mr. Jeffries, they also seek an apology and assurance that lessons will be learned.
Despite the failure of his false imprisonment claim, Christopher Jeffries has had his name cleared. He has received a very public apology from the Chief Constable, libel damages from eight newspapers, and public sympathy and support from Lord Chief Justice Judge, who described his treatment at the hands of the tabloid newspapers as ‘vilification’.
No doubt he also feels that, after three years in which his life changed immeasurably, enough is enough.
If you believe you have a false imprisonment claim and want help, contact me, Iain Gould, using the online form below, on 0151 933 5525, or via my firm’s website. Alternatively, please read more about me here.
A Home Office report which was published yesterday confirms that Taser use more than doubled between 2009-2001, following the issue of 10,000 more Tasers to the police once the initial testing period ended in 2008.
The latest figures which cover the period 2009-2011, unsurprisingly show that as the police have been issued with more Tasers, the ‘stun-guns’ have been more extensively used. Figures for 2011-2013 are expected to show a further increase.
In 2011, 25.7% of the time the Taser was discharged, causing injury to the victim.
Police assault using a Taser
Naturally, the public should be concerned especially as the Independent Police Complaints Commission is currently investigating three deaths where Tasers were used.
On numerous occasions I have written about the police’s seemingly uncontrolled use of these potentially lethal weapons (you can read my previous posts here, here, here, and here).
I am being contacted on a regular basis by potential clients who have suffered a police assault by officers using their Tasers. We should not forget that these ‘statistics’ are actually people, some of whom have had their lives irreparably changed as a result.
Police assault by Taser causes serious injuries
In itself, 50,000 volts being shot through a person’s body is enough to cause serious injury, heart problems, and psychological upset. But for some unfortunate victims, the more serious injuries arise from the secondary impact caused by being Tasered.
Having been Tasered, the body freezes in temporary paralysis, causing the victim to become imbalanced and fall forward, giving rise to a risk of serious head injuries, including brain damage.
A client I am currently representing was shot in the back by the police with a Taser as he ran away. This caused him to fall forward and land, face-first, on the concrete ground below. He was unable to protect himself because he could not raise his arms due to the paralysis, and lost or damaged 5 teeth as well as sustaining facial and other injuries.
His injuries have already cost him thousands of pounds in dental treatment, he is now facially disfigured, and feels that his life will never be the same.
Today’s BBC Radio interview about Taser use
I was interviewed today by BBC Radio Merseyside to provide my thoughts.
You can hear the BBC Radio interview in full by clicking on the ‘play’ arrow below:
While I readily accept that, in certain situations, the use of a Taser may be appropriate, I am concerned that the training police officers receive should stress more strongly that Tasers should be a weapon of last resort, and should be used in extreme circumstances only.
The Association of Chief Police Officer’s guidelines state that a Taser can only be used where officers face violence or when the police are in a situation where the threat of violence is so severe they need to use force to protect the public, themselves, and/ or the person they are dealing with.
Certainly in many of my clients’ cases I would argue that:
they present no threat whatsoever, and
that the police have acted with undue haste, and
in some cases I have dealt with, the police have exaggerated the threat and fabricated an account to justify Taser use and excuse the police assault.
Hopefully the figures presented today will generate further public awareness and debate as to whether police officers should be routinely equipped with a Taser and in what circumstances such a weapon should be used.
If you have been injured as a result of a police assault using a Taser, contact me using the online form below, on 0151 933 5525, or via my firm’s website. Alternatively, read more about me, my website or blog for more information about actions against the police claims.
On 30 April 2005 an armed police officer of the London Metropolitan Police fatally shot Azelle Rodney (shown below), a passenger in a car believed to have armed criminals inside, in a bungled ‘hard stop’. Although weapons were subsequently found in the vehicle, Mr. Rodney was not holding a gun when killed by the police.
Investigations by both the Independent Police Complaints Commission and the Crown Prosecution Service found no reason to criticise the police’s conduct. No inquest was held, and eventually political pressure persuaded the Lord Chancellor to establish a Parliamentary Inquiry on 10 June 2010.
their handling of the aftermath of the shooting, and
concluded that there was no lawful justification for shooting Mr. Rodney so as to kill him.
Specifically, the report criticised the conduct of the ‘hard stop’, a tactic used by the police to ‘box in’ a suspect vehicle and use overwhelming force to shock the occupants into compliance. The report’s authors considered this ‘hard stop’ fell short of Police standards.
They found fault with:
the decision to ‘box in’ the vehicle directly outside a pub when better opportunities for the manoeuvre had previously presented themselves,
the deliberate ramming of the suspect vehicle on two separate occasions,
the officers who alighted from the police vehicles failed to wear caps so identifying themselves as police officers,
the officers fired a shotgun into the suspect vehicle’s tyres after it had been rammed and hemmed in when there was no likelihood of the vehicle escaping
the disproportionate force used by the police officer who shot Azelle Rodney, who opened fire only 0.06 seconds after his car stopped alongside the suspect vehicle with first six bullets, then followed up with two more shots. Shots 5-8 were found to have been directly to the head.
the evidence given by that officer was unreliable. The report found that the officer could not have seen or believed that Azelle Rodney had picked up a gun and was about to use it, despite his earlier statements. It considered that the policeman would be liable in civil and criminal law for the killing as there was no basis for firing the fatal fifth to eighth shots
the post-assault procedures, in which Mr. Rodney’s body was left on the pavement for more than 16 hours, his blood was not cleaned away prior to his family attending the scene, and unauthorised press reports were released.
The report recommends that the Metropolitan Police conduct a thorough review of their procedures.
Our modern police force has evolved to deal with changing threats. In particular, the risks caused by firearms and weapons means that the police have developed a tactic to create ‘shock and awe’ in the minds of their suspects. The police will now use the ‘hard stop’, expletives, physical force, ‘boxing in’ (where police vehicles are used to corner a suspect’s vehicle), and other aggressive behaviour to dominate and intimidate. They justify this by stating that they may have to deal with the threat of lethal force from potentially armed suspects.
The bungled ‘hard stop’ which tragically resulted in Azelle Rodney’s death was over eight years ago. Have the police learned from their mistakes? As two of my cases involving the London Metropolitan Police show, a pattern of unjustifiable police assaults is emerging that may suggest not.
Police assault, hard stops and ‘verbal stunning’
My clients Claire Clarke, James Barber, Nicholas Fairbairn and Ruth Fairbairn were on the receiving end of aggressive police assault tactics, described in an official response to their complaint as ‘verbal stunning’, when they were driving home from visiting friends on 19 April 2010. (You can read a case report here.)
The four friends in their late twenties were driving in Harrow when their car was boxed in by three marked Police cars while executing a ‘hard stop’.
A number of armed police officers surrounded them and trained their weapons on the car. James (the driver) had his car window was smashed, was roughly pulled out, thrown to the glass-covered ground and handcuffed. The armed police officers screamed expletives and contradictory instructions at the terrified friends. Nick and Ruth were also forcibly removed and handcuffed. The friends were separated. After 20 minutes the police explained they had made a mistake, and that they had stopped the wrong car.
All suffered physical and emotional distress as a result. As with Azelle Rodney’s case, the Independent Police Complaints Commission rejected their complaint saying there was no evidence of misconduct. I disagreed and instigated a civil action on their behalf and ultimately recovered compensation for my clients for this police assault on the basis that the police failed to conduct basic checks before executing the ‘hard stop’ on the friends’ car.
My client Mr. A had just walked into an underground car park on 04 September 2009 when he was set upon by five or six armed men, all dressed in plain clothes. One of the men approached him and without warning smashed the butt of his gun into the side of Mr. A’s right temple, causing him to fall to the ground.
Mr. A was dragged away from the car park doorway by his attacker.
When Mr. A asked ‘why are you beating me?’ the man said ‘keep your f**king mouth shut’ and struck Mr. A with the butt of his gun again in the right temple.
Mr. A adopted a foetal position on the ground. While defenceless he felt people pulling at his limbs, kicking his heels, ribs and left hip. He was stamped on by the men. Then he was struck with the butt of the gun a third time to the head by the same man, who shouted ‘F**king c*nt, move!’
Mr. A, who was bleeding heavily and in great pain by this time had no idea who was attacking him, or why.
The man with the gun was told to ‘back off’ by a colleague, who came over and said ‘it’s not even f**king him’. Despite this, Mr. A was told that he was being arrested.
It then dawned on Mr. A that he had been repeatedly assaulted by police officers, not gangland thugs. As with Azelle Rodney’s case, the officers had failed to wear caps or other identifying clothing.
Mr. A was arrested (even though the officers would not tell him why), taken to hospital and thereafter a London police station where he was held for over 24 hours before being released, even though the police had clearly arrested the wrong man.
Ultimately, no action was taken against him.
He has suffered serious injuries which have left him with permanent scars to his face and scalp, and emotional trauma. I am now pursuing an actions against the police claim for his police assault, wrongful arrest & false imprisonment. Mr. A seeks additional compensation for the police’s arbitrary, oppressive and unconstitutional conduct.
The police have denied liability and refused to apologise for their conduct. I have issued court proceedings on his behalf and the case is ongoing.
Police assault failures
There are chilling similarities between my clients’ cases and that of Azelle Rodney.
Eight years on, when faced with a potentially lethal threat, police officers are still failing to comply with proper procedures, using unnecessary force and mishandling the aftermath, knowing that they will be protected by the IPCC and their solicitors. We can only hope that the criticism of all involved in the Azelle Rodney case will convince the police to clean up their act.
If you are a victim of police assault and want to make a claim for compensation against the police, contact me using the online form below, on 0151 933 5525, or via the www.dpp-law.com website.
Despite the strict requirements of the Police and Criminal Evidence Act (PACE), it would appear that at least one police force, under pressure to increase the detection rate in relation to serious offences, admit to simply rounding up the ‘usual suspects’ without any evidence to suggest those individuals are responsible.
In a report commissioned by the Ministry of Justice, Vicky Kemp reviewed 5000 arrests made over a 3-month period in 2012 by Nottinghamshire Police. She found that ‘a significant minority’ involved suspects who were known to be prolific in the past but who had been wrongfully arrested with no evidence linking them to the crime for which they had been detained.
Such a policy has strong historical roots in British policing. It is a form of ‘social control’.
According to some police officers who were interviewed:
arresting persistent offenders;
detaining them for up to 24 hours;
confiscating their mobile phones and shoes for forensic examination;
imposing bail conditions; and
searching their homes
will all help reduce crime.
Police legal powers abused
While it is debatable if such an approach to ‘social control’ was ever in place, cultural and technological changes in the 1970’s introduced a more professional and tolerable model of policing reinforced by the provisions of s.24 of PACE (1984), which stresses that the police must have ‘reasonable grounds’ for arrest. The law states that –
24 Arrest without warrant: constables
(1) A constable may arrest without a warrant—
(a) anyone who is about to commit an offence;
(b) anyone who is in the act of committing an offence;
(c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence;
(d) anyone whom he has reasonable grounds for suspecting to be committing an offence.
(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.
(3) If an offence has been committed, a constable may arrest without a warrant—
(a) anyone who is guilty of the offence;
(b) anyone whom he has reasonable grounds for suspecting to be guilty of it.
(4) But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.
(5) The reasons are—
(a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person’s name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);
(b) correspondingly as regards the person’s address;
(c) to prevent the person in question—
(i) causing physical injury to himself or any other person;
(ii) suffering physical injury;
(iii) causing loss of or damage to property;
(iv) committing an offence against public decency (subject to subsection (6)); or
(v) causing an unlawful obstruction of the highway;
(d) to protect a child or other vulnerable person from the person in question;
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.
(6) Subsection (5)(c)(iv) applies only where members of the public going about their normal business cannot reasonably be expected to avoid the person in question.
So, aside from the very specific grounds detailed in the Act, the police do not have the power to arrest without a warrant. Any arrest outside of these terms is an abuse of police powers, and can lead to claims for wrongful arrest, false imprisonment and misfeasance in public office, especially if repeated as described in the Ministry of Justice report.
I am currently representing a 57-year-old man who wishes to sue Greater Manchester Police. Mr X will openly admit that he has a chequered past but has served his time and says his offending days are over. Despite this, he has been arrested for burglary at least nine times over the last 5 years and maintains that on each and every occasion, there has been no evidence linking him to any of the crimes (burglary or robbery). Certainly, no arrest has led to any successful prosecution.
Consequences when the police abuse their powers
Mr. X’s case highlights a policy that not only wastes police time and resources but also causes distress and yet further damage to the reputation of the police while the real offenders escape justice.
The classic film, Casablanca, ends with Humphrey Bogart’s character, Rick Blaine killing the Nazi, Major Strasser. Captain Renault saves Rick’s life by telling the investigating police to ’round up the usual suspects’. While that may have saved the hero in the famous wartime story, police officers in real-life England and Wales have no such excuse.
Advice for victims of police abuse
If you are a victim of police abuse and want advice about pursuing a compensation claim against the police, contact me using the online form below, on 0151 933 5525, or via my firm’s website.
I am currently representing Mr. G 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. G’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, Mr. G 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. G’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. G 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.