actions against the police; solicitor; lawyer; iain gould; compensation claims – Page 6 – Iain Gould

Police abuse powers to arrest the ‘usual suspects’

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.

cc licensed ( BY SA ) flickr photo shared by J

Police abuse power of arrest

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;

(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;

(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.

As a specialist actions against the police solicitor, in my experience it is not just Nottinghamshire Police who are abusing their power to arrest. Regular readers of my blog will be aware that I have repeatedly reported on police abuse, for example in describing the Andrew Mitchell ‘plebgate’ affair, and when discussing South Yorkshire Police’s claims that they have changed post-Hillsborough.

Police harassment of a current client

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.

cc licensed ( BY SA ) flickr photo shared by Insomnia Cured Here

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.

Why have jury trials in actions against the police?

By Iain Gould, Solicitor

It is a little-known fact that some actions against the police compensation claims (specifically cases involving claims for false imprisonment and/or malicious prosecution) can be decided by a jury.

The right to trial by jury in such cases was preserved for such claims against the police after it was abolished for most other civil actions in 1933.

Putting such a case before a Jury does not, however, come without complications.

cc licensed ( BY ) flickr photo shared by zzpza

Hung jury in an actions against the police claim

I am currently representing Peter Garrigan who is suing British Transport Police for false imprisonment, assault, misfeasance in public office, and malicious prosecution. Although, there is some limited CCTV footage, Mr. Garrigan’s actions against the police compensation claim essentially rests on his word against two Police Officers. Last week, his case went to trial before a Jury.

On the fourth day, having heard the evidence, the jury of eight retired.

After a long and stressful week in court, Peter hoped for Judgment in his favour in his police compensation claim.

Unfortunately, the jury were unable to reach unanimity.

In the County Court (as in this case) after a reasonable period of deliberation, the Court can accept a majority verdict of 7-1.

In Mr. Garrigan’s case, after several hours, it was clear that the jury were unable to agree to that and, in the circumstances, the Judge ordered a re-trial.

As it now stands, he must ready himself for another week in court sometime in the next year, and I will have to prepare his case for trial yet again.

So why bother having a Jury?

Judicial guidance in police claims

By s.69 of the Supreme Courts Act 1981, a party wishing to claim the right to have their case heard before a jury has to apply for it within 28 days of the service of the Defence.

Should either party fail to make such an application, the case must be tried by a Judge alone unless the Court in its discretion orders trial by jury. As May LJ noted in Times Newspapers Ltd v Armstrong (2006),

‘the discretion is now rarely exercised, reflecting contemporary practice. Contemporary practice has an eye, among other things, to proportionality; the greater predictability of the decision of a professional Judge; and the fact that a Judge gives decisions.’

Reasons to keep jury trials in police abuse claims

Given ‘contemporary practice’, why then encourage (as I routinely do) a victim of police abuse to elect jury trial?

Because an individual’s belief in the rule of law is shaken when they are a victim of wrongdoing by the police.

The police are agents of the state. The courts can be considered the same way, and I often hear scepticism of judicial independence and the need to avoid the ‘involuntary bias towards those of their own rank and dignity’ (Frank Cook v Telegraph Media Group Ltd (2011)).

Some might query whether my faith and confidence in jury trials in cases involving police abuse has been knocked.

My answer is an unequivocal ‘no’.

Having taken many civil actions against the police to trial with a jury, I remain convinced that, win or lose, my clients are far more accepting of a judgment given by their peers rather than by a Judge who may be perceived as solitary, conservative and out of touch.

Certainly, Mr. Garrigan is un-phased and is keen to have his actions against the police case heard again, confident that a new jury will find in his favour.

For all of us, but especially those making actions against the police claims, it is important that this basic right is preserved.

If you have been a victim of police abuse and want to claim compensation, please click here to read more or contact me, Iain Gould, using the online form below, on 0151 933 5525, or via the contact form at dpp-law.com.

Update

I am pleased to confirm that following a 4 day trial before Judge and Jury, British Transport Police were ordered to pay my client £13,000 together with his legal fees. You can read about it here.

Why the Metropolitan Police continue to bungle a mistaken police raid

By Iain Gould, Solicitor

I read this week about the Metropolitan Police’s attitude to wrongful forced entry (‘police raid’) cases.

An article on the Londonlovesbusiness website states that the Metropolitan (or ‘Met’ for short) Police are directly responsible for around 1,000 mistaken raids on innocent peoples’ homes every year.

Defending the Met, Vice Chair of the Metropolitan Police Federation Gill Barratt is quoted as saying,

‘Often decisions to enter a property are made in fast-moving situations where the officer has to balance the welfare of the occupant against damage caused. Whilst any damage is regrettable, the welfare of the occupant must always be paramount.’

As a case I am currently pursuing shows, occupant welfare appears to be less important to both the police officers conducting the raids, and those dealing with subsequent compensation claims.

Bungled police raid in London

I am currently representing Ish Malik, his wife and (at the time) 5 year-old daughter following a terrifying police raid at their home.

At 4.a.m in October 2011, Mr. Malik, a 29 year-old, 5’5” Asian male, was asleep in bed with his wife in their Hounslow, Middlesex flat. They were awoken by two loud bangs. He and his wife got up and rushed out of their bedroom. As they did so, there was another loud crash and the front door splintered and flew open. The couple was confronted by several large men who were wearing helmets and pointing guns at them.

Both Mr. and Mrs. Malik didn’t understand what was happening and believed they were being robbed.

The armed men shouted a succession of contradictory commands. One told Mr. and Mrs. Malik to freeze. Another told them to put up their hands. Only then did Ish realise that the intruders were police officers.

Mr Malik saw his daughter standing at her bedroom door and he took a step forwards to console her. An officer told him to ‘freeze’ or he would be ‘struck down’.

Several officers manhandled and handcuffed Ish and escorted him outside into the cold in his underwear. The officers were abusive to him, swearing at him and pushing him around.

While being held outside he could hear his daughter screaming.

After 10-15 minutes, the handcuffs were removed and Mr. Malik was allowed to return inside his flat to be re-united with his wife and daughter. The terrified family was then told by the Police that they had made a mistake in raiding the flat.

All three have been deeply traumatised by the police raid at their home.

Compensation claim for police raid at home

Mr. Malik instructed me as I specialise in compensation claims against the police.

As well as damages for the trauma he and his family have suffered, he wants answers.

I have established that the mistaken raid came about because the police were searching for a 17 year-old, “stocky” black man, about a suspected firearms offence.

They had an address recording the suspect at ‘Flat 1A…’.

Mr. Malik and his family live at Flat 1: there is no Flat 1A.

Knowing this, it defies logic to think that the police would raid Mr. Malik’s home in the first place, and then make matters worse by handcuffing and removing Ish, a man who bears no physical resemblance to the person they were searching for.

Despite the open-and-shut nature of this case, because of the Metropolitan Police’s conduct, I have had no alternative but to issue Court proceedings.

In response the Met Police have denied liability. The grounds in support of their denial were scant and so I have been obliged to raise formal questions to establish the full background. All this costs time and money which, if Mr. Malik is successful, will be paid by the taxpayer.

Occupant welfare paramount?

Gill Barratt claims that ‘the welfare of the occupant must always be paramount’.

If that is so, why didn’t the Met Police check the address before raiding Mr. Malik’s flat? Why was Ish (who looks nothing like the suspect) manhandled, handcuffed and removed from his home and family by armed officers? Why are the Met Police continuing to defend the family’s entirely proper claim for compensation?

As a result of the mistakes made in bungled police raids in and around London, the Met Police have paid out almost £1 million in compensation over the past three years, as well as the associated costs of repairing damage to property and dealing with litigation and compensation claims.

We should not forget that as well as the financial cost to the taxpayer there is also the considerable emotional cost and loss of trust experienced by the victims of the bungled raids, their families, friends and neighbours.

To continue to fight Mr. Malik’s claim only makes things worse for the Metropolitan Police. As Vice Chair, I can only hope that the authority of Ms. Barratt’s words will result in positive action for my client and future victims of police negligence.

If you have been a victim of a bungled police raid on your home, contact me, Iain Gould, using the online form below, on 0151 933 5525, or via my firm’s website.

You can read more about this case here.

A Caution is for life not just for Christmas

Photo of Iain Gould, a solicitor who specialises in actions against the police — Iain Gould, specialist actions against the police solicitor

By Iain Gould, Solicitor

On a regular basis, certain crimes are resolved at the Police Station shortly after arrest by way of a simple (a.k.a police) caution. Many observers view such a disposal as a slap on the wrist without serious consequences. They are wrong. Let me explain why accepting a police caution could be one of the most serious mistakes you ever make.

What is a police caution?

A police caution is a formal warning given to adults for minor offences. It is an alternative to prosecution in minor cases and is usually issued by the police, but can also be handled by other enforcement agencies, such as Local Authorities. Cautions cannot be issued in indictable-only (serious) offences, but otherwise the police retain a broad discretion to issue them.

The consequences of accepting a police caution

Although a caution is not a criminal conviction, if it is imposed for a recordable offence:

it will be entered on the Police National Computer and any subsequent court proceedings,
it may be used as evidence of previous misconduct where this is permitted,
it may prevent a further caution being offered in the future,
fingerprints and other identification data can be taken and retained,
in the case of a relevant sexual offence, the offender is placed on the Sex Offenders’ Register for two years,
if the person cautioned is in a notifiable occupation the police should disclose the caution to the employer. This may have especially serious consequences for people who work with children or vulnerable adults.

How the police issue cautions

In 2008, the Home Office issued Circular 016/2008 about ‘Simple cautioning of Adult Offenders’ to provide guidance on the use of the simple caution. It states that a simple caution ‘may be used for disposing of (low-level) offences when specified public interest and eligibility criteria are met’.

Relevant extracts of the circular are as follows:

The aims of the simple caution are to:

(a) deal quickly and simply with less serious offences where the offender has admitted the offence

(b) divert offenders where appropriate from appearing in the criminal courts

(c) record an individual’s criminal conduct for possible reference in future criminal proceedings or relevant security checks; and

(d) reduce the likelihood of re-offending.

When deciding when a Simple Caution is appropriate, a police officer must answer the following questions:

has the suspect made a clear and reliable admission for the offence either verbally or in writing?…

Is there a realistic prospect of conviction if the offender were to be prosecuted in line with the Code for Crown Prosecutors,

Is it in the public interest to use a Simple Caution as a means of disposal? Officers should take into account the public interest factors set out in the Code for Crown Prosecutors, in particular the seriousness of the offence…

Is the suspect 18 years or older?

Is a Simple Caution appropriate to the offence and the offender? (with reference to ACPO’s gravity Factors matrix and the suspect’s criminal history).

Other Considerations

Has the offender been made aware of the significance of a Simple Caution?

Under no circumstances should suspects be pressed or induced in any way to admit offences in order to receive a Simple Caution as an alternative to being charged.

Has the suspect given an informed consent to being cautioned.

“Informed consent” can be given when the suspect has received in writing an explanation of the implications of accepting a Simple Caution before he/she agrees to accept a Simple Caution. After receiving this, if the suspect does not give his/her consent, the police may choose to continue with the prosecution in accordance with the Directors Guidance on Charging. Officers must avoid any suggestion that accepting a Simple Caution is an “easy option”.

Making the decision

When considering the suitability of an offence for disposal by Simple Caution, the decision should be referred to an officer of at least Sergeant rank.

Consequences of receiving a Simple Caution

The significance of the admission of guilt in agreeing to accept a Simple Caution must be fully and clearly explained to the offender before they are cautioned.

Other legal guidance about police cautions

The Code for Crown Prosecutors

The Full Code test for deciding the appropriate disposal of a case has two stages:

the evidential stage, i.e. whether there is a realistic prospect of conviction, and
whether in all the circumstances, it is in the public’s interest for there to be a prosecution.

The ACPO Gravity Matrix

The Guidance requires an officer to apply the “ACPO Gravity Factors Matrix” when assessing the gravity of an offence.

All offences are given a gravity score (‘1’ for the most minor offences and ‘4’ for the most serious). Other factors, either aggravating or mitigating may raise or lower the score for a particular offence, by 1 point only.

So, for a total score of 1, the guidance states there should always be the minimum response applicable to the individual offender, i.e. No Further Action, Simple Caution or Penalty Notice for Disorder.

For a score of 4, the guidance states to always charge.

How the courts interpret the law on police cautions

It is apparent that police officers responsible for applying the Home Office Circular enjoy a wide margin of appreciation as to the nature of the case and whether the pre-conditions for a caution are satisfied.

As Lord Justice Schiemann put it in R v Metropolitan Police Commissioner ex parte Thompson [1997] I 1 WLR 1519

“it will be a rare case where a person who has been cautioned will succeed in showing that the decision was fatally flawed…”.

Cases where a police caution has been removed after the event:

How CCTV saved Mrs O’Reilly

In a case that I was involved in against West Yorkshire Police, I obtained CCTV footage of the Custody Suite that provided “clear evidence that a caution was not explained in full or correctly” to my client Mrs. O’Reilly, in breach of the Circular’s guidance.

The facts

Mrs O’Reilly was arrested for obstructing an officer in the execution of his duty. She was taken to Dewsbury Police Station where she was kept in overnight.

The following morning, she was advised that she was to be offered a police caution. She was given no explanation as to what it meant to have a caution, nor given a choice in the matter. She was told that she would not have to disclose it and was told to sign a piece of paper stating that she agreed to be cautioned.

West Yorkshire Police’s position

Mrs. O’Reilly’s initial complaint to the police was ignored. She sought me out as I am a solicitor who specialises in actions against the police.

But for the incontrovertible CCTV evidence, I have no doubt that West Yorkshire Police would have rejected her complaint and my client would still have a caution against her (otherwise) unblemished name.

Result: removal of the police caution

As a consequence of Mrs. O’Reilly’s reliance on CCTV evidence to support her insistence that she had been mistreated, West Yorkshire Police agreed to expunge the caution from their system/the Police National Computer.

2. Judicial review of the Metropolitan Police

In another recent case brought against the Metropolitan Police, a decision to caution and its subsequent confirmation was challenged in Judicial Review proceedings.

The Court found that the suspect had made a clear and reliable admission, but on review considered:

the circumstances of the offence and offender,

the investigating officer’s thought process when deciding how to resolve the case (i.e. to take no further action, to offer a caution, or to prosecute), and

determined that he should have concluded that a prosecution was inconceivable, and that the public interest did not warrant a caution.

Accordingly, the Court decided to intervene and the caution was expunged.

A cautionary tale

Given the clear Home Office guidance and judicial support described above, successful challenges to the imposition of police cautions are rare.

Careful consideration has to be given by the Police as to whether to offer a caution, the suspect as to whether to accept, and a Criminal Defence Lawyer, if engaged, to advise whether to accept or reject.

The fact remains that challenging a caution after the event will be exceptional and accordingly, for the vast majority who accept a caution at the Police Station this will be on their record for ever-more.

If you (or your clients) have been wrongly issued with a police caution, contact me for confidential advice and assistance using the online form below, via my firm’s website, or call me on 0151 933 5525.

How the police abuse the law

By Iain Gould, solicitor

I have previously written on the Andrew Mitchell affair, or what is now known in the media as “Plebgate”

According to Mr. Mitchell, other than swearing at a police officer under his breath in exasperation for the officer’s small mindedness for refusing to open the main gate of Downing Street, he did nothing wrong on the evening of 19 September 2012.

An extract from the log of the officer with whom Mr. Mitchell spoke states how Mr. Mitchell, in the presence of ‘several members of public’ said,

“Best you learn your f—— place…you don’t run this f—— government…You’re f—— plebs.”

The police officer’s log continued,

“The members of public looked visibly shocked and I was somewhat taken aback by the language used and the view expressed by a senior government official. I cannot say if this statement was aimed at me individually, or the officers present or the police service as a whole.”

Tellingly, it concluded,

‘I warned Mr. MITCHELL that he should not swear, and if he continued to do so I would have no option but to arrest him under the Public Order Act, saying “Please don’t swear at me Sir. If you continue to I will have no option but to arrest you under the public order act”. Mr. MITCHELL was then silent and left saying “you haven’t heard the last of this” as he cycled off.’

This account was corroborated by an email from an eyewitness, who claimed to be one of those members of the public looking on.

The police log and media storm that followed was enough to ensure that Mr. Mitchell’s position as Chief Whip was untenable and after a month, he relented to pressure and resigned.

Following a Channel 4 investigation, it now transpires that the independent eye-witness was in fact a serving police officer with Scotland Yard’s diplomatic protection group. Mr. Mitchell claims the man “was nowhere near Downing Street that night”.

Furthermore, CCTV footage allegedly vindicates Mr. Mitchell in that it shows him showing “no sign of any loss of temper or bodily aggression”, and given that the scene lasts only 16 seconds, “hardly time for…a full-on rant”.

And contrary to the police officer’s log, only one member of the public can be seen in the vicinity.

The Independent Police Complaints Commission is now investigating and two men have been arrested, one of whom is the serving officer who allegedly sent the email to his MP.

Similar actions against the police cases

I have previously blogged on how the police use s.5 Public Order Act to pursue unjustified prosecutions. In a recent case involving my client Robert, he was only accused of causing ‘harassment, alarm or distress’ when South Yorkshire Police found out that he had lodged a complaint after being attacked by a police dog.

In another actions against the police case I am pursuing to trial, Ivan Martin made a complaint about a police officer he saw shopping while on duty. His ‘reward’ for highlighting what he felt was a waste of police resources was to be prosecuted for using ‘threatening and abusive behaviour’, an allegation that appears to be totally unfounded in light of available CCTV footage.

And in a further matter I have, my client Mr. Wilson (name changed for privacy reasons) was accosted by police officers as he approached a cash machine. Without explanation they took his bank card, searched him and demanded his name and address. When he complained about his treatment he was arrested, detained and issued with a fixed penalty notice for ‘using words or behaviour likely to cause alarm or distress’. Mr. Wilson fought the charge and ultimately his prosecution was dismissed.

I am confident my clients will recover significant compensation for their actions against the police claims for malicious prosecution.

The law

Mr. Mitchell and my clients share being alleged to have acted contrary to the same section of the Public Order Act, S.5(1) which states:

‘A person is guilty of an offence if he: (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.’

As it is a two stage offence, for a conviction to stand, it has to be established that:

the person used threatening, abusive or insulting words or behaviour, and
that the said words or behaviour were within the hearing or sight of a person likely to be upset.

This often precludes the police themselves, who are expected to be made of sterner stuff. As I noted in an earlier blog post about a client of mine, swearing in the context of everyday language should not be considered ‘threatening, abusive or insulting’.

Andrew Mitchell has avoided (unlike many of my clients) a criminal prosecution. Had he been prosecuted however, he would no doubt have contested the allegation. Whilst he accepts swearing within earshot of the officer (muttering “I thought you guys were supposed to f—— help us” under his breath as he wheeled his bike into Whitehall), he would argue that such behaviour could never constitute an outrage against public decency and that the officer has deliberately exaggerated his account of misconduct.

Fortunately, he now has CCTV footage that he says discredits the officer’s version of events.

I am afraid that I routinely come across cases where police officers appear to have fabricated and or exaggerated their evidence. Police officers often take affront when their authority is challenged (legitimately or not) and are well aware that a Court is unlikely to deem behaviour as sufficient to amount to a breach of Section 5 when the conduct is said to have been in their presence only. In the circumstances, the words and behaviour used are deliberately ‘sexed up’ and mysterious members of the public are created so as to justify an arrest/ prosecution.

Too often, police officers get away with it. There are not many who can call on evidence to prove their innocence or who have the will to challenge such behaviour.

Mr. Mitchell maintains that his life-long confidence in the police has been misplaced. He said,

‘If you had told me on September 19 that the sort of experience I have had could have happened in the country today, I would not have believed you…If it can happen to me, it could surely happen to anyone.’

As a Solicitor who specialises in actions against the police, I can assure Mr. Mitchell that his experience is not unique.

Is this how the Metropolitan Police will promote Operation Yewtree?

By Iain Gould, Solicitor

Actions against the police solicitor Iain Gould — Iain Gould, police claims specialist solicitor

It appears I’m not the only one interested in Max Clifford’s arrest last week.

In my latest blog post (which you can read by clicking here), I queried whether the police really needed to arrest him and explained that the Police have to justify necessity in order to prove that an arrest is lawful.

Being arrested is no laughing matter but Mr. Clifford may be amused to read this article on satirical website ‘The Daily Mash’. It seems that the ‘dawn raid’ he was subjected to as part of Operation Yewtree would make great Christmas television!

Iain Gould is a solicitor who specialises in actions against the police.

Can the Metropolitan Police justify Max Clifford’s arrest?

By Iain Gould, Solicitor

Another day & yet another high-profile arrest for alleged historic sexual abuse. Yesterday, the well-known publicist, Max Clifford, was arrested by the Metropolitan Police on suspicion of sex offences that date back 35 years.

Mr Clifford, the self-styled ‘PR guru’, was arrested shortly after 7.30 am yesterday (Thursday 6 December) at his home in Hersham, Surrey and taken to a police station in Central London where he was detained and quizzed for 12 hours.

Following his arrest, police searched his house for several hours before emerging with sealed black evidence bags which were placed into the back of two vans.

Undoubtedly the arrest came like a bolt out of the blue for Mr Clifford, who spoke out only a few months ago about the police enquiry into the conduct of BBC DJ and TV presenter Jimmy Saville.

He said that he had been approached by celebrities from the 1960’s and 1970’s who were ‘frightened to death’ that they would be caught up in the scandal.

It is likely that the allegations of sexual abuse have been prompted by the Jimmy Saville enquiry. Indeed, the Metropolitan Police have confirmed that the arrest is part of Operation Yewtree, which is looking at three categories of alleged sexual offences: those involving Saville; those involving Saville and others; and those involving others. Mr Clifford’s arrest comes under the later group.

Mr Clifford has vehemently denied the allegations which led to his arrest, saying that they dated as far back as 1977 and that ‘these allegations are damaging and totally untrue’.

Justifying arrest- the necessity test

The burden of proof falls on the police to justify any arrest. This has proven to be so even during times of great duress or urgency, such as during the darkest days of World War II, when Lord Atkin stated,

“[I]n English law every imprisonment is prima facie unlawful and … it is for a person directing imprisonment to justify his act.” (Liversidge v Anderson (1942))

Historically, under Section 24 of the Police and Criminal Evidence Act (1984) (‘PACE’), an Officer can arrest where he honestly suspects the commission of an offence and he holds that suspicion on reasonable grounds. Those grounds need to be more than a hunch, but can be less than the standard for admissible evidence. I have recently written a guest blog post on the Charon QC website about another recent high-profile arrest, that of Christopher Jeffries, which expands on this.

In 2006, section 24 of PACE was amended to allow an officer to only arrest in the above circumstances, if s/he also had reasonable grounds for believing that it was necessary to arrest for any of the following reasons (emphasis added)

(b) correspondingly as regards the person’s address;

(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.

This was clarified in Hayes v Merseyside Police (2011), when the Court of Appeal established that the test was simply whether:

a. the officer actually believed that arrest was necessary, and for one of the reasons specified above; and

b. that objectively that belief was reasonable.

Common police claims

The consequence of the above statutory guidance and case-law is that I anticipate the Police will argue that the arrest of Mr Clifford was necessary for the purpose of ‘prompt and effective investigation’ by questioning at a formal interview.

But could the Police have simply invited Mr Clifford to attend the police station at a mutually convenient time to give a statement under caution (i.e. voluntary attendance), especially given the age of the allegations?

Was a dramatic ‘dawn raid’ formal arrest really necessary?

The Police would say that the mere fact of an arrest pre-interview will put more pressure on the arrested person during questioning. They may also point out that making a formal arrest prevents any interruption of having to make an arrest should the voluntary attender seek to leave.

They could also argue that arrest was justified due to the possible need to take certain protective measures that can only be taken following arrest, i.e. imposing bail conditions.

There has been limited litigation on this point but it is clear that the Courts will give the Police substantial leeway and that unless there appears to be compelling evidence that the officer knew or ought to have known that the suspect would co-operate fully on a voluntary basis, an arrest will be deemed lawful.

As a result, in the event Mr. Clifford pursues a civil compensation claim against the police, success is by no means assured.

Iain Gould is a solicitor who specialises in actions against the police claims. You can read more about him at www.iaingould.co.uk.

Have South Yorkshire Police really changed?

By Iain Gould, Solicitor

A former chief constable of South Yorkshire, Richard Wells, who took charge in the aftermath of the Hillsborough disaster in 1989, recently said that at the time police forces across Britain had ‘a culture of authoritarianism, defensiveness [and] excessive secrecy’.

Mr Wells statement followed publication of a report by the Hillsborough Independent Panel that found that senior police officers waged a concerted campaign, in the form of private briefings, redacted statements and stories fed to a Sheffield news agency, to “impugn the reputations of the dead” and save that of the South Yorkshire Police.

The current Chief Constable, David Crompton maintained in a BBC interview that “South Yorkshire Police is a very different place in 2012 from what it was 23 years ago”.

Is it? My client, Mr A would strongly disagree.

Attack by police dog

In February 2012, Robert, a 19 year-old football fan, was at Hillsborough to watch the derby between United and Sheffield Wednesday.

As he was walking home from the ground he passed a WPC with a police dog. Suddenly and without warning the police dog lunged at Robert, biting his right forearm, drawing blood and destroying his jacket, a recent Christmas present from his mum and dad.

Although he was shocked and in great pain, Robert asked the officer for her details as he intended to pursue a complaint about the assault by the police dog. She refused and a male police officer ushered him away.

Robert walked away and met up with some friends who advised him to return to the WPC to insist that she give him her details. Once again, she refused and once again, he was ushered away by the male police officer who belittled and laughed at him as he did so. At no time was it suggested that Robert had committed any criminal offence and at no time was Mr A obliged to give his details.

As he walked away, Robert saw another man receiving treatment in an ambulance. He had also been bitten by a police dog. Robert approached the paramedics, was treated and taken to hospital for dog bite injuries and shock.

Robert, a student has never been in trouble with the police before, complained to the police the next day and agreed to have the matter investigated by local resolution, an informal process I do not recommend. Before then, the police had no idea who he was.

Malicious Prosecution by the police

A couple of weeks later he was visited at home by two uniformed South Yorkshire Police officers. Rather than discuss his complaint, they served Mr A with a Fixed Penalty Notice for breach of s.5 of the Public Order Act on the day of the derby match, ie that he had caused ‘harassment, alarm or distress’.

Dilemma

Robert contacted me for advice. He knew that the s.5 charge was made-up nonsense, but that if he accepted the fixed penalty and paid the £60 fine it would be dealt with and he would not have a criminal record, something of crucial importance to a young man with the rest of his life ahead of him.

However, he also knew that South Yorkshire Police had issued the Fixed Penalty notice merely because he had the temerity to complain. They would not have known who he was, and so would not have served him with the Fixed Penalty Notice if he hadn’t approached them the following day to complain.

Ultimately, Robert decided to fight the allegation. He lodged the appeal and waited. It would appear that South Yorkshire Police then bungled their attempt to prosecute. They are now out of time to do so.

I am now representing him in a compensation claim against South Yorkshire Police.

No change

Although South Yorkshire Police’s Chief Constable David Crompton assured us that things had changed, my client was subjected to an entirely unjustified assault and prosecution. I am not re-assured by the Chief Constable’s words.

It appears to me that the s.5 Public Order Act prosecution was brought to put Robert in his place. Once again, we would hear the old line of the hooligan football fan being restrained by well-meaning police officers. In short; the same lie South Yorkshire Police peddled in the aftermath of the 1989 Hillsborough tragedy would be repeated following an attack by a police dog at the same football stadium 23 years later.

To put a 19-year-old in this position, where he had to decide between the principle of defending himself from trumped-up charges, or letting the matter lie, is nothing short of disgraceful and points to an institutional failing within South Yorkshire Police which has not been addressed. Unlike Chief Constable Crompton, I have no doubt that this leopard has not changed its spots.

Iain Gould is a solicitor who specialises in actions against the police compensation claims.

Update

I am pleased to confirm that South Yorkshire Police agreed to pay Robert, shortly before trial, substantial damages together with his legal fees. You can read more here.

Why another Taser assault exposes police failings

By Iain Gould, Solicitor

I was disappointed to read yet another story of police officers using Tasers to restrain innocent people.

Tasers are stun guns used by the police to shoot 50,000 volts of electricity into a person’s body. This has the effect of temporarily paralysing them, and can cause nausea, loss of bowel and bladder control, vomiting and on rare occasions, a heart attack. The police can use these weapons to arrest someone provided they can show that such force is reasonable and proportionate.

Blind man Tasered

The Daily Mail reports how Colin Farmer, a 61-year-old blind man carrying his white stick, was walking slowly in Chorley, Lancashire (he has had two strokes and is partially paralysed) when he was Tasered in the back by a policeman looking for a man carrying a samurai sword. Even after shouting ‘I’m blind’ Mr. Farmer’s back was knelt upon by the policeman while he put handcuffs on with such force that they broke Mr. Farmer’s bracelet.

You can watch Mr. Farmer being interviewed here. I think you will agree he does not come across as a knife wielding threat to society.

Mr. Farmer describes the police officer who Tasered him as ‘a thug’ and is taking legal action against the police force for the assault.

Amazingly, no disciplinary action was taken at the time against the officer by Lancashire Constabulary. Perhaps because of the publicity the matter has now been referred to the Independent Police Complaints Commission.

I have previously blogged on this issue, as I am now routinely receiving enquiries from people who have been subject to this form of police assault.

Police assault

In one case I am currently pursuing, my client Ivan Martin, a 51-year-old heavy-set, bald black man, was at home when two police officers knocked on the door. They asked his name, which he confirmed, but said that he was not the person they were looking for. My client shares the same name as his son, but does not resemble him physically. His son is 20 years younger, of slim build, with an ‘afro’ haircut and of mixed race.

The police officers ignored Mr. Martin and disregarded the fact that he bears no resemblance to his son, whose photograph they had seen before going to Ivan’s house, and said they were there to arrest him for criminal damage.

Mr. Martin knew he had done nothing wrong and stepped back into his house. Echoing Mr. Farmer’s case, my client had his back to the police when he was Tasered, falling heavily to the floor where he was then handcuffed.

Even though Ivan was in great pain, he begged the officers to get his personal identification. Once checked, they acknowledged their mistake. Unlike Mr. Farmer however, they then added insult to injury by arresting Mr. Martin with assaulting police officers and obstructing a constable in the course of his duties.

Although there were no grounds for this, he was taken to a local police station, detained, interviewed, and eventually released after 17 hours with no further action to be taken.

Not unsurprisingly, Ivan is now pursuing a claim for police assault, unlawful arrest, trespass, false imprisonment and misfeasance in public office. I am confident he will be successful, resulting in thousands of pounds compensation being paid by the taxpayer as a result of the over-zealous use of a Taser by police officers, who then compounded the mistake by fabricating a story of assault to avoid blame.

Lack of police training

Both Colin Farmer’s and Mr. Martin’s case have striking similarities, not least being the lack of common sense being shown by the police officers. How can a white stick be confused for a samurai sword? How can a middle-aged, heavy-set man be confused for his son? Although the police are trained in the use of Tasers perhaps it is time a new chapter is added to the training manual: ‘How to use your brain’.

Update

I am pleased to confirm that following a 6 day trial before Judge and Jury, West Midlands Police were ordered to pay my client £26,500 together with his legal fees. You can read about it here.

One Rule for the Rich?

The Tory Chief Whip, Andrew Mitchell is currently under significant pressure after a call for a formal inquiry following his outburst at two police officers on the evening of Wednesday 19 September.

Upon leaving Downing Street, it is alleged he asked officers to open the gates that lead on to Whitehall. When the officers refused and asked him to leave via a side gate, he allegedly shouted ‘You fxxxing plebs, I’ll have your jobs for this’, and ‘You don’t know who I am. I am the Chief Whip. You don’t run this fxxxing country’.

The officers recorded this outburst in their pocket notebooks and subsequently in a report and yet to date no action has been taken against the Minister.

This is surprising as swearing aggressively at a police officer constitutes a potential offence under the Public Order Act.

Mr Mitchell can count himself lucky. My client, George Jennings (name changed for privacy reasons) of Leicester was less fortunate.

Shopping in Morrisons Supermarket one day, he encountered a police officer in full uniform also doing his shopping. Mr Jennings approached him and said, ‘There is a 9.2 million pound deficit for the next 3 years and you are here shopping for bloody shoelaces and shoe polish. Do you think this is acceptable?’

The officer was taken aback. After a pause, the officer advised George that he needed new laces in order to enable him to chase criminals. The officer then warned Mr Jennings that his conduct amounted to a breach of Section 5 of the Public Order Act, i.e. that George had used threatening, abusive or insulting words or behaviour.

Mr Jennings advised the officer that he would lodge a complaint and promptly visited the nearby Police Station.

Some 2 months later, George was charged with breaching Section 5 of the Public Order Act and the case proceeded to trial.

The officer provided a statement and accused Mr Jennings of saying, ‘There is a 3 something million deficit for the tax payers and you’re in here, why aren’t you out in the street dealing with crime’ and ‘I’m going to report you for shopping on duty. You’re a bloody waste of money’. During this encounter, George was said to be aggressive and intimidating.

Somewhat remarkably, not only was Mr Jennings prosecuted for his ‘threatening and abusive behaviour’ but he was also convicted by the Magistrates! His defence was hindered by the Police or Crown Prosecution Service’s failure to disclose CCTV footage from the supermarket.

George appealed and the case proceeded to the Crown Court. In advance of the Appeal Hearing, the relevant CCTV footage was finally disclosed. Although there is no audio, no one could conclude from the actions of Mr Jennings that he was aggressive or intimidating in his encounter with the officer or, even more significantly, that the officer showed any signs of alarm or distress. At Court, the prosecution case collapsed and no evidence was offered.

I am now pursuing a civil claim against the police for compensation on Mr. X’s behalf.

The police officer in question was caught by my client doing something he shouldn’t have. He was embarrassed. Because Mr Jennings had the temerity to lodge a formal complaint, the officer then instigated a formal prosecution. But for the CCTV footage George could still have a conviction for breaching Section 5 of the Public Order Act. Instead, Mr Jennings ought to be compensated by Leicestershire Constabulary and the individual officer and force’s reputation questioned. If, like in the case of (the rich and powerful) Andrew Mitchell, the officer took the view that there had been no offence committed, (the considerably less well off) Mr Jennings and the police would have avoided all of this. In the meantime, I’m sure that the multi-million pound Leicestershire Police deficit is now even greater because of this ludicrous prosecution. Surely a man who claims to ‘run this fxxxing country’ would have something to say about that.

Would you believe it? Custody CCTV footage and the police

Custody CCTV footage can often be helpful in an actions against the police claim.

Every police station in the country has a CCTV system in place recording everything that happens in the custody suite. Not only does the footage produced by the system provide vital evidence about a Claimant’s general demeanor immediately post-arrest, but it can also confirm or disprove the arresting officer’s initial arrest account. Often it contradicts the stated position of the police in correspondence, for example if they deny allegations of assault, leading to compensation being paid for the police’s wrongdoing.

Consequently, it is vitally important that custody CCTV footage is retained and made available to the Claimant and his actions against the police solicitor as soon as possible.

Many police forces operate a system whereby their CCTV footage is deliberately wiped after 90 days. In these days of digital technology, I often wonder why.

Also, increasingly I am coming across situations where CCTV footage is being wiped, despite my request within time that relevant CCTV footage be preserved. Excuses I have received recently include:

‘The Custody suite footage whilst requested by yourselves prior to the expiry of the 90 day period was addressed to the incorrect staff…’;

‘Your letter was received but unfortunately not acted upon…’ and;

‘there is no CCTV footage available as data was not captured due to technical difficulties…’

I have no doubt that these excuses are tactical, as they prevent access to evidence which may assist the Claimant and harm the police’s defence.

We all have an interest in how public funds are spent. If CCTV evidence will assist in early settlement of a claim that is in everyone’s best interests, especially the police’s, who will save money and time. Equally, if it contradicts the Claimant’s version of events, that should be known by his solicitor as soon as possible, who may take a different view as to the prospects of success. In short: custody CCTV footage should be retained and produced in every actions against the police case. Failure to do so can only be viewed with suspicion.

Why swearing at the police is not a crime

I recently read with interest the Telegraph’s report that a 19-year-old man’s s.5 Public Order Act conviction was overturned by Mr. Justice Bean recently on the grounds that his use of swear words could not have caused the necessary ‘harassment, alarm or distress’ required to convict.

In response, Peter Smyth (chairman of the Metropolitan Police Federation) complained that ‘if judges are going to say you can swear at police then everyone is going to start doing it’.

In my opinion, Mr. Smyth has missed the point completely. I am presently dealing with a similar actions against the police case for a client who was stopped and searched by the police while going to the bank. My client suffers from panic attacks, for which he has received therapy. When approached by them, the police officers used demeaning, offensive and rude language, searched him and made him agitated. He was arrested for a breach of s.5 Public Order Act and forced to sit on the floor of the police transit van while they drove him to the police station. During the journey and at the station he suffered a full-blown panic attack. My client was detained and searched again, and only released once a fixed penalty notice had been issued.

The police say he used abusive language which justified the arrest and subsequent charge under s.5. I dispute this. My client’s alleged use of swear words was in the course of his everyday language (e.g. he is alleged to have said ‘why the f— do you pick on me I just want to go to the f—ing bank.’). He was not squaring up to or challenging the officers, quite the opposite as he was using distraction techniques to try to avoid having a panic attack.

It is the context of the swear words which is important, and the way in which they are used, that may give rise to the ‘harassment, alarm or distress’ necessary to secure a s.5 Public Order Act conviction. S.5 was never intended to allow easy prosecutions for those who use swear words in every day conversation, rather it was intended to deal with those who cause fear and upset; the type of people we would all try to avoid. The sooner the police recognise the difference the better.