Why West Mercia Police Paid £25,000 Compensation for Misfeasance in Public Office

Iain Gould solicitor
Iain Gould, solicitor.

I have previously written about ‘Clare’s’ case; a young vulnerable victim of domestic abuse groomed and sexually exploited by a serving Police Officer, PC Powell.

I am pleased to report that Clare’s case has now been successfully concluded; on my advice, Clare brought a claim against West Mercia Police for misfeasance in public office and successfully recovered £25,000 compensation plus her legal costs.

Clare first contacted me shortly after PC Powell had been sentenced to 15 months imprisonment at Gloucester Crown Court for Misconduct in Public Office. PC Powell had admitted that:

  • When acting as a public officer he wilfully neglected to perform his duty and/or wilfully misconducted himself
  • To such a degree as to amount to an abuse of the public’s trust in his office without reasonable excuse or justification.

per Attorney General’s Reference number 3 of 2003 [2004] EWCA Criminal 868.

Clare felt that PC Powell’s personal behaviour was reprehensible but that West Mercia Police were also at least partly responsible, as PC Powell had been warned for similar misconduct in 2008 but had been allowed to continue in office without adequate supervision, and in particular had been allowed to continue to have conduct with victims of domestic abuse.

On review, it struck me that Clare had a potential civil claim for misfeasance in public office, an ancient tort originally developed during the eighteenth century for the benefit of electors willfully refused the right to vote and increasingly deployed in civil actions against the police in more recent times.

What is misfeasance in public office?

In order to establish a successful claim for misfeasance, the Claimant must show that:

  1. A public officer;
  2. Exercised a power in that capacity; and
  3. The officer intended to injure the Claimant by his/her acts.  This is known as ‘targeted malice’; or
  4. The officer knowingly or recklessly (in the subjective sense) acted beyond his/her powers.  This is known as ‘un-targeted malice’; and
  5. The officer’s act(s) caused damage to the Claimant; and
  6. The officer knew or was subjectively reckless to the fact that his/her act(s) would probably cause damage of the kind suffered by the Claimant.

If misfeasance can be established against a serving Police Officer then his Chief Constable, and therefore in effect the whole Force as an organisation, becomes ‘vicariously’ liable to pay damages to the wronged/injured party.  In a case like Clare’s this would be an eminently fair result, owing to the failings of the Force and Senior Officers in allowing PC Powell to prey upon domestic abuse victims (as highlighted in my previous blog).

Proving Clare’s Claim

In support of the claim for misfeasance, it was clear that PC Powell was acting as a public officer in the West Mercia Police Force when he abused Clare:

  • PC Powell was responsible for investigating crimes and incidents in which Clare was a victim and for taking action and providing support to Clare in respect of the same.
  • PC Powell engaged in sexual relations with Clare during his working hours and whilst on duty (and on a number of occasions whilst wearing his uniform).
  • In all the circumstances, there was clearly a very close connection between PC Powell’s conduct and the performance of his duties, such conduct having taken place in the performance or purported performance of his policing duties and his relationship with Clare having been established through the position of authority he held as the investigating officer in her case.

During the course of his office, PC Powell exercised powers as a Police Officer and  was responsible for the following acts:

  1. Sending and receiving text messages and telephone calls of a personal and sexual nature to Clare, a victim of domestic abuse.
  2. Requiring Clare to attend at the police station on a number of occasions.
  3. Attending Clare’s home address on a number of occasions.
  4. Instigating and engaging in a sexual relationship with Clare, a victim of domestic abuse.

Although often difficult for Claimants to prove bad faith on the part of the officer, here it was blatantly apparent that PC Powell acted with malice in that he:

  • Knew that Clare was a vulnerable victim of domestic abuse and that she would, or would be likely to, respond to apparent care, concern and attention on his part and thus knew and intended or did not care that he could injure Clare, by instigating an inappropriate sexual relationship with her;
  • Specifically targeted Clare as a vulnerable victim of domestic abuse in order to exert control over her and for his own sexual gratification;
  • Instigated a personal and sexual relationship with Clare in flagrant disregard for his professional duty as a Police Officer assigned to her case.

In all the circumstances, it was apparent that PC Powell knew of, or was reckless to the risk that his acts would probably cause harm to Clare, but proceeded to act, indifferent to that risk

By reason of PC Powell’s conduct, Clare had suffered material damage, specifically she reported psychological trauma as a result of the relationship and such injury was reasonably foreseeable specifically;

  • Immediately following the incident, Clare experienced disturbed appetite, disturbed sleep, low mood and a degree of weight loss.  Clare lost confidence, which affected her self-esteem.
  • Clare felt as though PC Powell had sexually exploited her.  Clare felt ‘dirty’, ‘used’, and ‘stupid’, and as though she has done something wrong.  Clare felt that PC Powell abused her trust.
  • Clare’s view of the police was also affected by the incident and she felt very negatively about the police. Clare said that she would be reluctant to contact the police for assistance in the future.

Notwithstanding the broad nature of this civil wrong, the Courts have routinely issued warnings to lawyers against actions for misfeasance in public office being brought unless there is clear evidence to support a contention of dishonest abuse of power (see Masters v Chief Constable of Sussex [2002] EWCA Civ 1482)  Unlike claims in false imprisonment and assault, the burden of proof lies squarely on the Claimant at each stage. It is a difficult burden to overcome in the absence of clear evidence of bad faith.

Notwithstanding these issues, I was confident of success and agreed to act on behalf of Clare by way of ‘no win no fee’ agreement.

I believe that my robust presentation of Clare’s case encouraged West Mercia Police to admit liability early on. It is a pity that they did not agree settlement terms swiftly but that will be for another blog.

Should the Police “Arrest First” and Investigate Later?

Iain Gould solicitorBy Iain Gould, solicitor

The head of the National Crime Agency, Lynne Owens has been in the news. According to The Sunday Times and quoted in The Telegraph, whilst Chief Constable of Surrey Police she told police officers investigating rape cases to “arrest first” and investigate later.

Owens, who is now head of the National Crime Agency, is said to have made the changes when she was Chief Constable for Surrey Police between 2011-2015.

According to the report, minutes from a September 2015 meeting called by the then Police and Crime Commissioner for Surrey, Kevin Hurley reveal that Owens was asked how the force was going to improve their detection rates for rape.

The minutes record: “The chief constable was keen to ensure officers were robustly pursuing offenders. Officers tended to receive an allegation then wait to make an arrest after gathering evidence. They needed to change this and make an arrest first and then gather the evidence.”

Nick Ephgrave, then Deputy chief constable and who now leads the force, told the meeting that the tactics had raised the rape detection rate from 6 per cent to 15.8 per cent, a significant turnaround in a year.

It is obviously satisfying to see a Chief Constable adopting a robust approach to the investigation of crime but it is imperative that Police forces operate within the legal powers conferred upon them. In my dealings with various Police forces, I am afraid however that tactics of arresting prior to sufficient evidence to form the basis of reasonable suspicion being gathered first are not necessarily limited to Surrey Constabulary. An arrest on suspicion of a sexual crime, such as rape can have serious long-lasting consequences for the person arrested if they were in fact entirely innocent, and have been arrested by the Police simply as part of a ‘fishing expedition’ which effectively amounts to an abuse of Police power of arrest, as I shall explain.

Robert’s Case

I have recently concluded a case on behalf of Robert (name changed for obvious reasons), a student who when just 16 years old, was arrested by North Wales Police on suspicion of rape.

In the summer of 2013, a music Festival took place in North Wales. Robert attended along with several friends.

Towards the end of the festival, a female complainant, Ms A made a complaint to a crisis worker that she may have been raped the previous evening.  Ms A ‘s initial account was as follows;

“I went to the toilet block, talking to two lads.  I went to a tent…..  I don’t remember anything else but I think I have been raped because it hurts down below.  I think I remember one of the boys wearing a red puffa jacket”.

Ms A subsequently gave a statement to the police.  Her recollection of the evening was vague due to her consumption of a large amount of alcohol.  She recalled that the previous evening, she had visited the site toilets with a friend, GH.  While she was waiting outside the toilets for GH, she started a conversation with an unknown white male.  Ms A started kissing this male.  She was then introduced to the unknown male’s friend, “Robert” who was “mixed race” and who was wearing a distinctive red puffa jacket.

Ms A’s next recollection was of consensual oral sex with the white male in a tent.  Ms A also recalled something hard being pushed into her vagina.  Ms A remembered saying “stop, it hurts and I can’t do this”, getting dressed and then leaving the tent.

Ms A was examined by a paediatrician who concluded that she had received trauma to her genital area and that the marks were consistent with an attempt at intercourse.

GH was interviewed and he recalled he had seen Ms A and the unknown male kissing and then walking off together followed by “Robert”.

Several days later, friends and family of Ms A contacted North Wales Police to report that they had identified the mixed race male in the red puffa jacket introduced as “Robert” as my client.

On the basis of this information, several Police officers travelled to my client’s home address and arrested him on suspicion of rape.  Robert was 16 years old, is of mixed race and had never been in trouble with the Police before. He was taken to a Police Station. This was despite the fact that Ms A had never alleged that the mixed race male had any sexual contact with her, but rather his white friend.

At the Police Station and without the least evidential or reasonable foundation, the circumstances of arrest were said to be;

“The Detained Person has been identified as being responsible for rape.  Circumstances are that the I/P recalls being in a tent at the festival and being subjected to rape. D/P has been identified via clothing worn and full description of a male seen with the I/P prior to the incident”.

The necessity for the Claimant’s arrest was said to be to “allow the prompt and effective investigation”.

My client was obliged to provide his personal details.  He was then searched, his personal belongings including his mobile phone seized, and he was then placed in a holding cell where he was subsequently joined by his mother who had been obliged to travel to the Police Station separately.

Robert was subsequently taken for interview. He answered all questions truthfully and directly. The interview was rather meandering and in fact was a fishing expedition rather than fact based enquiry. On review, it was apparent that the officers had no information whatsoever to implicate Robert.  After 58 minutes of questioning, the Duty Solicitor intervened and put it to the interviewing officers that their questions resembled questions which would ordinarily be put to a witness rather than a suspect.   The relevant passage of the interview is as follows:

Solicitor: Sorry, the two times she’s described having sex, oral sex with a white man and then sex, you haven’t given any description as to the person she’s having sex with then.

IO:  No there is no description actually in the notes here I’ve got.

Solicitor:   So that has led you to arrest him as opposed to a voluntary interview or anything.

IO:  The clothing description and …

Solicitor:  She doesn’t say she’s …………….  red puffa jacket

IO:  The jacket also with the description as well, Robert is seen in the vicinity heading in the same direction.

Solicitor:   Is that just because you have a name? Because you’ve been able to pick a name up.

IO:  Hm hm

Solicitor: You arrested him and used him to get your information, that is disgraceful, Robert is 16 and has never been in trouble before.

IO:  I understand the point you’re making.  I’ll make a note of that.

Solicitor:  I’d like you really to get on and finish this interview because it’s disgraceful

Thereafter, the Police advised Robert that he was to be released on Police bail. The Duty Solicitor again made robust representations as to why Police bail was wholly inappropriate and that Robert should be released NFA (no further action). On the basis of those representations, the issue was reconsidered and a decision made to release Robert without charge.

Finally, in the early hours of the morning, Robert was released. Notwithstanding his release, the Police retained 2 T-shirts belonging to Robert and his mobile phone which were eventually returned several weeks later.

Robert was understandably shocked by what happened to him but equally satisfied that he had done no wrong.

Robert is in my opinion a young man going places and despite his arrest was not going to be deterred from getting on in life. He continued his studies and successfully passed several ‘A’ Levels 2 years later.

Robert was however left with a fear of intimacy with girls; he was concerned that if he developed a relationship with a girl, a similar allegation could be made. He was particularly fearful if he drank leaving gaps in his memories. A Psychologist concluded that this fear represented a chronic adjustment disorder but that with time, he would overcome these issues.

The Law

For any arrest to be lawful, it must be founded on reasonable grounds. This necessitates consideration of whether, objectively, it was reasonable to suspect the Claimant of the offence for which he was arrested. It is also necessary to consider whether the arresting officer honestly suspected the Claimant of the offence for which he was arrested. Further, it is necessary to consider whether the decision to arrest was a lawful exercise of discretion, applying the Wednesbury principle of reasonableness: see Castorina v Chief Constable of Surrey (1996)

Castorina was followed in the more recent case of Buckley and others v The Chief Constable of Thames Valley Police [2009]. The following was stated by the Court of Appeal in Buckley:

“Suspicion is a state of mind well short of belief. The threshold for establishing reasonable grounds for suspicion is a low one. It is an inherent possibility in the need for diligent investigations of serious offences than an innocent person may be arrested on reasonable grounds. Importantly, the correct approach to judgment upon the lawfulness of arrest is not to separate out each of the elements of the constable’s state of mind and ask individually of them whether that creates reasonable grounds for suspicion; it is to look at them cumulatively, as of course the arresting officer has to at the time.”

It is clear that the test for reasonable suspicion represents a low threshold for the arresting officer to meet. What is required to reasonably suspect a person of an offence falls far short of what would be required to charge them and thereafter to ultimately convict them of the same offence. The relevant information is that which was available to the arresting officer prior to the arrest, not any information that might have been gained afterwards, for example, during interview.

Every arrest must also meet the requirement of necessity. Section 24(5) of PACE 1984 sets out a number of criteria for the consideration of whether an arrest is necessary.

The application of the necessity criteria was considered in Richardson v Chief Constable of West Midlands Police [2011], in which a schoolteacher successfully challenged the lawfulness of his arrest for assaulting a pupil, after he had attended the police station voluntarily. The decision in Richardson was then considered in Hayes v Chief Constable of Merseyside Police [2012]

In Hayes, Hughes LJ, having acknowledged that it might be quite unnecessary to arrest a schoolteacher who had attended the police station voluntarily, said that the correct test for the assessment of whether an arrest met the requirements of necessity was:

“…(1) the policeman must honestly believe that arrest is necessary, for one or more identified section 24(5) reasons; and (2) his decision must be one which, objectively reviewed afterwards according to the information known to him at the time, is held to have been made on reasonable grounds…”

The Claim

On Robert’s behalf, I intimated a claim against the Chief Constable of North Wales Police. Following investigation, liability was denied. In relation to the commission of the offence, the Police asserted that there were clearly reasonable grounds on which the arresting Officer was entitled to suspect that an offence of attempted rape had been committed by Robert:

  1. A complaint of rape had been made by Ms A;
  2. The paediatrician had concluded that Ms A had received acute trauma to her genital area;
  3. The marks were consistent with an attempt at intercourse;
  4. Ms A identified a mixed race male as being present when she began kissing the unknown white make and went back to his tent;
  5. Ms A could recall walking back to the tent with the unknown white male and the mixed race male;
  6. This mixed race male was described as wearing a red puffa jacked and being in his late teens/early twenties;
  7. Robert was 16 years of age and of mixed race.
  8. Enquiries by Mrs A’s friends and family identified that this mixed race make was Robert;
  9. The descriptive match with Robert was sufficiently proximate to implicate him (see inter alia, Armstrong -v- West Yorkshire Police [2008] EWCA);
  10. Ms A had been under the influence of alcohol and accordingly had an impaired personal recollection of events.

 In terms of the necessity of Robert’s arrest, his arrest was plainly necessary to allow the prompt and effective investigation of the offence and the arresting Officers was entitled to form the view, as he plainly did, that the relevant necessity ground for arrest was made out.  

As settlement terms could not be agreed, it was necessary to issue Court proceedings.

Court Proceedings

On Robert’s behalf, I argued that:

(a) There were no reasonable grounds to suspect Robert of the commission of the offence for which he was arrested.  I relied in particular on the following facts which individually or in aggregate negated reasonable suspicion;

i) Ms A performed oral sex on a white male.  Robert was of mixed race

ii) Ms A gave no description of the male who allegedly attempted to rape her.

iii) Despite being able to identify Robert by name and description, Ms A did not allege at any stage that Robert had himself committed the or any offence.

iv) Robert was identified as being an associate of the possible suspect.  It was apparent that the Police had arrested him so as to gather information as to the identity of the suspect,   not because of any reasonable or otherwise, suspicion to arrest.

(b) The arresting officer did not reasonably believe that lawful grounds for arrest existed;

(c) The arresting Officer did not at the material time honestly and reasonably believe that it was necessary to arrest Robert on suspicion of any offence or for any other lawful reason; alternatively

(d) There were no reasonable grounds for believing that for any of the reasons specified in s24(5) of PACE it was necessary to arrest Robert.  There was no evidence that this young man of good character would not have answered questions voluntarily; further or alternatively

(e) The arresting officer failed to have any or any proper regard to the requirements of PACE Code of Practice G and in particular paragraph 1.3. of the said Code which requires that ‘officers exercising the power (of arrest) should consider if the necessary objectives can be met by other less intrusive means’; further or alternatively

(f) The arresting officer in deciding whether to arrest Robert failed to exercise his discretion lawfully or at all; further or alternatively

(g) At no material time were there reasonable grounds for believing that Robert’s detention at the police station was necessary for any of the reasons specified in section 37 of PACE or at all.

The arrest and detention having been unlawful, it followed that all touching of Robert amounted to assault (ie to search and take his fingerprints/DNA sample) and that the seizure of Robert’s property amounted to trespass to goods.

As is so often the case, the Police denial of liability was nothing other than strategic manoeuvring and after 6 months of further prevarication, I am pleased to report that the Police agreed to destroy Robert’s personal data (fingerprints, DNA and photograph) and expunge the record of arrest from all local and national Police records and pay compensatory damages of £15,000 plus full legal costs.

The case highlights a more worrying trend in Police tactics employed in the investigation of sexual crimes; ‘arrest first, investigate later’, which may give the victim and Police and Crime Commissioners anxious for positive ‘detection’ rates some comfort but fails to take into account the catastrophic impact it can have on any innocent individual who is caught up in such an investigation.

 

Read more of my blog posts about actions against the police here.

Why Paul Ponting’s Strip Search Was Wrong

Photo of Iain Gould solicitor, explains strip search law referring to the case of his client Paul Ponting.
Iain Gould solicitor, explains strip search law referring to the case of his client Paul Ponting.

By Iain Gould, Solicitor

You may have read in today’s papers (Daily Mail, Liverpool Echo) that my client, Paul Ponting, is suing Lancashire Police for compensation following his arrest and strip search in June 2014.

To strip an individual of their clothes following their arrest is one of the greatest invasions of privacy and bodily integrity that the State can perpetrate.

Here I explain the law about strip searches and how it affects Mr Ponting’s case.

(N.B. Paul Ponting has given his consent to publicity and agreed to me using details of his case here, which are based on his version of events.)

Arrest and Strip Search

At the time of his arrest Paul Ponting was a successful 42-year-old businessman and father-of-two. He owns computer shops and lives in Ormskirk, West Lancashire.

In 2014 Paul told Lancashire Police that an ex-employee was harassing him via an online hate campaign. On the evening of 18 June 2014, two uniformed police officers visited Paul and his wife at home to tell them that the police would not be taking action against the ex-employee. Mr Ponting was upset about this and an argument developed. The police arrested him for a minor public order offence and an alleged (but in any event minor) assault against one of the officers.

Paul was taken to Skelmersdale Police Station. He was frightened and worried as he had never been arrested before and was unfamiliar with the process. What happened next is in dispute. Paul’s behaviour is variously described in the Custody Record (which is completed by the Custody Sergeant, not the Claimant) as “erratic” and “violent”. (The available CCTV footage would suggest otherwise.)

The Custody Record also says that Mr Ponting refused to engage in the Risk Assessment Process (whereby the arrested person provides details about their general health). As a result, the Custody Sergeant wrote that he should be stripped of his clothes. The Sergeant justified this decision by stating that it was not possible to determine if Paul had anything on him likely to cause harm to self or others.

Paul was taken to a police cell. There he was violently manhandled, assaulted, and forcibly stripped naked by FOUR police officers. You can see photographs and CCTV footage of his painful and degrading experience here.

Paul began to experience chest pains while in police custody. He was rushed to hospital where his injuries were recorded as “multiple bruises and superficial lacerations to the limbs and a swollen left lateral hand”. He was later bailed to return to the police station where he was eventually charged.

Mr Ponting was prosecuted all the way to trial. Thankfully he was acquitted of all charges at Ormskirk Magistrates Court in November 2014.

Paul’s experience at the police station was humiliating, degrading, and undignified. He contacted me for advice as I specialise in civil actions against the police. I am now helping him bring a compensation claim against Lancashire Police for wrongful arrest, false imprisonment, assault, and malicious prosecution.

The Law in Strip Search Cases

Searching detainees is understandably important: it protects the safety of arrested persons; reduces the risk of harm to police staff; and allows material to be seized that may be subject to legal proceedings. But in my experience, all too often an arrested person’s dignity is ignored and a strip search effected on the flimsiest of excuses.

The rules about searches are rightly strict. The courts say that careful consideration should be given by custody staff before authorisation and execution of a strip search. (See Patricia Zelda Davies (by her litigation friend Zelda Davies v. Chief Constable of Merseyside Police and Just for Kids Law and Children’s Rights Alliance for England (Interveners), Court of Appeal [2015] EWCA Civ 11.)

And, as well as this clear guidance provided by the Court of Appeal, the police must consider:

All this means that:

1.      The custody officer should decide the extent of the search and the subsequent retention of any article that the detainee has with them. Officers must document the decision-making process on the Custody Record and include:

  • the reason for the search
  • those present during the search
  • those conducting the search and,
  • a record of any items found or seized.

2.      The custody officer should explain to the arrested person why it is necessary to carry out the search. Custody officers may seize clothing on the grounds that they believe the arrested person may use them to harm themselves. However, custody officers should, when deciding to remove clothing, balance the need to protect the right to life with the importance of ensuring that an arrested person’s dignity is respected.

3.      The search must be conducted with proper regard to the sensitivity and vulnerability of the arrested person and every reasonable effort must be made to secure the arrested person’s cooperation. Only if they do not consent may the officer(s) use reasonable force to carry out the search/removal of clothes (Section 117 of PACE).

Police Failures in Paul Ponting’s Case

Paul Ponting was rapidly taken from the police van on arrival at the police station, through to the Custody Desk, and then into a cell where he was forcibly stripped naked. This suggests that little or no consideration was given to Paul’s rights, or his dignity.

And if Lancashire Police suggest that its officers were concerned for Paul’s wellbeing whilst in custody, I will argue that more consideration should have been given to alternative and less invasive measures. The College of Policing guidance states:

“Officers should not automatically see strip-searching individuals for their own protection as the best way to prevent them harming themselves.”

On the facts, the police’s conduct was unjustified. I do not understand why a normal “pat down” search of Paul’s person, without removing his clothes, could not have satisfied the officers that he was not carrying anything of potential danger. Furthermore, belts and socks, which could be used to self-harm, can be removed without requiring an individual to be stripped naked. There was simply no need for Lancashire Police officers to strip Mr Ponting of his clothes and his dignity. And to then prosecute him all the way to trial on bogus charges simply added insult to painful injury.

Mr Ponting is right to pursue his case, despite recent government efforts to make it harder for claimants to seek justice and hold police officers to account. By taking action against Lancashire Police he is shining a light on their poor practices, and, hopefully, encouraging the Force to change its approach to strip searches.

Contact me for help with your actions against the police via the online form below or my firm’s website.

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Why the Metropolitan Police Won’t Apologise to Lord Bramall

Solicitor Iain Gould explains why the Metropolitan Police won't apologise in this blog post.
Iain Gould, solicitor, explains why Lord Bramall won’t get an apology from the Metropolitan Police.

By Iain Gould, Solicitor

Recently the Metropolitan Police was in the headlines because it refused to formally apologise to Lord Bramall over its treatment of him during an investigation into historic child abuse allegations.

The Metropolitan Police raided Lord Bramall’s home in March 2015 and he was later interviewed under caution on 30 April 2015. He strenuously denied the allegations and said that “There wasn’t one grain of truth in the allegations” made against him.

In mid-January 2016, the Metropolitan Police finally declared that there “was insufficient evidence” to pursue charges against the 92-year-old Second World War veteran over the historic abuse inquiry.

Sir Max Hastings, military historian and friend of the peer said that Lord Bramall had “been through absolute hell” over the allegations. He said that in pursuing the investigation of historic abuse, the Metropolitan Police had lost sight of a “sense of justice and fairness” towards those accused and that “decency demanded” an apology.

This is why he won’t get one.

Metropolitan Police Statement

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.

Compensation Claim

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?

Decency Demanded

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.

 

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Are Police Disciplinary Hearings “robust, independent, and transparent”?

Iain Gould, solicitor, asks if police disciplinary hearings are robust, independent, and transparent.
Iain Gould, solicitor, asks if police disciplinary hearings are robust, independent, and transparent.

By Iain Gould, solicitor

I recently blogged on the case of Alex Farragher whose complaint about police misconduct led to a public police disciplinary hearing.

As of 1 May 2015, in accordance with Section 9 of The Police (Conduct) (Amendment) Regulations 2015, police disciplinary hearings “shall be in public” (subject to the discretion of the person chairing or conducting the hearing to exclude any person from all or part of the hearing).  That change, along with others, was aimed to create a “more robust, independent and transparent” police disciplinary system.

Has it worked?

The Law in Public Hearings

What does “in public” mean? The OED definition is “openly, for all to see or know”.

The concept of open justice has long been recognised.

In Scott v Scott (1913) AC 417, Lord Shaw of Dunfermline said “that publicity in the administration of justice ….(is) one of the surest guarantees of our liberties” and cited passages from Bentham and Hallam in support of the general thesis that in Bentham’s phrase “Publicity is the very soul of justice”.

The principle is just as important now as it was then; in Hodgson v Imperial Tobacco Limited (1998) 1 WLR 1056, Lord Woolf MR relied upon the following passage from Sir Jack Jacob’s Hamlyn lecture, The Fabric of English Civil Justice (1987) where he said:

“The need for public justice, which has now been statutorily recognised, is that it removes the possibility of arbitrariness in the administration of justice, so that in effect the public would have the opportunity of ‘judging the judges’: by sitting in public, the judges are themselves accountable and on trial”.

An application of the principles in Scott v Scott is to be found in McPherson v McPherson (1936) AC 177, a decision of the Privy Council’s in a Canadian case. There the undefended divorce of a well-known politician was conducted not in a court room (though there were empty courts available) but in the Judges’ Library. There was direct public access to the courts, but not to the Judges’ Library. It could be approached from the same corridor which encircled the building and provided direct access to the courts, but only through a double swing door, one side of which was always fixed shut, and on which there was a brass plate with the word “Private” in black letters on it. Through this swing door was another corridor, on the opposite wall of which was a further door to the Judges’ Library. Both this internal door and the free swinging half of the double doors were in fact open during this hearing. The question for the Court was:

“… whether those swing foots with ‘Private’ marked upon one of them were not as effective a bar to the access to the library by an ordinary member of the public finding himself in the public corridor as would be a door actually locked”. (p198)

Their answer, while accepting that no actual exclusion of the public was intended, was that:

“… even although it emerges in the last analysis that their actual exclusion resulted only from that word ‘Private’ on the outer door, the learned judge on this occasion, albeit unconsciously, was ……, denying his court to the public in breach of their right to be present, a right thus expressed by Lord Halsbury in Scott v Scott: ‘every court of justice is open to every subject of the King’.” (subject to any strictly defined exceptions).

In Storer v British Gas plc (2000) 2 All ER 440, the Court of Appeal decided that this fundamental principle was no less important in employment proceedings than in other proceedings. In that case, Mr Storer brought a claim against his employers. At a hearing at the Industrial Tribunal Centre, his claim was dismissed. On appeal, Mr Storer argued that this decision should be quashed on the basis that the hearing had not been held in public.

The relevant facts were as follows:

At the Centre, “12 Industrial Tribunals were sitting on that day.  The lists of cases to be heard in each were on public display.  There was also a list of floating cases, i.e. cases which had not been allocated to a court, but would be heard as and when a court became available.  Mr Storer’s case was one of these.  As the morning wore on, it seemed clear that his case would not be reached unless it was heard in a room not normally used as a court-room.  One was available – namely the office of the Regional Chairman, as that position was unfilled at the time.  As a Judge was available, and as the room was available, the court authorities took the decision to have the hearing there.  They did not consult Mr Storer on this.  The parties (including Mr Storer’s wife) were escorted there by a guide.  No member of the public accompanied them.  It is accepted that Mr Storer’s application for leave to appeal to the Court of Appeal accurately summarises the geographical situation of the room that was used:

(a)    The hearing was held behind a locked door which separated the area to which the public had access from that part which the learned Judge described as the ‘secure area’ on the second floor of the Tribunal office. This ‘secure area’ [is] protected by the door locked with a bush-button coded lock [which] provides the only means of access to the large open plan office off which the Regional Chairman’s room is located.

(b)   This locked door is clearly marked with a large sign stating ‘Private’ in black letters on a white background.

(c)    All access stairs from the public areas on the ground and first floors to the second floor where [the] locked door is located are marked clearly with a large sign stating”

PRIVATE

NO ADMITTANCE

TO PUBLIC BEYOND

THIS POINT

The Court concluded that the hearing had not been held in public, even if, in fact, no member of the public was physically  prevented from attending. The obligation to sit in public was fundamental, and the tribunal had no jurisdiction to conduct itself in this way.

How Public are Police Disciplinary Hearings?

Both my client Mr E T, and myself, have first hand experience of the lengths to which the police will go to follow the letter of the law while ignoring the spirit of it in public police disciplinary hearings.

Following an incident that occurred on 14th February 2013, my client Mr E T lodged a complaint to the Metropolitan Police. The following description is based on his version of events.

Mr T was driving home from work when he was stopped by a police carrier van. Mr T got out of his car. He was told that he had been driving erratically and asked to hand over his car keys. He refused.

Suddenly, one of the officers grabbed hold of Mr T’s left arm and a struggle began. Many other police officers from the police van then stormed out and forcibly moved Mr T towards the pavement.

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

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

Mr T was then told that he was under arrest for breaching s.5 of the Public Order Act. So as to further justify arrest, one police officer then said that he ‘could smell cannabis’ in Mr T’s car.

Mr T was then transported to a police station. En route, Mr T said to both police officers that he was going to sue them for what they had done. An officer said in response “We’ll just say that you assaulted a police officer”.

Mr T was then kept in custody until the next day and after he was interviewed for the alleged offences. Mr T was then bailed to return to the police station a few weeks later.

On his return, he was charged with assaulting a police officer and resisting arrest.

There was no further action against Mr T in respect of his driving (the reason for his stop), the cannabis allegation or breaching s.5 of the Public Order Act.

At the first opportunity, Mr T pleaded not guilty and his case was eventually listed for trial nearly a year later. At Trial, the CPS without notice or reason decided to discontinue.

Police Disciplinary Hearing Access

After investigating Mr T’s complaint the Professional Standards Bureau decided to bring gross misconduct proceedings against three of the officers.  The police misconduct hearing finally went ahead last week in the Empress State Building, South West London, nearly three years after the incident.

Mr T is intent on bringing a civil claim against the Metropolitan Police for unlawful arrest, assault and malicious prosecution. To find out how the officers performed, I sent my colleague to sit as watching brief.

My colleague met up with Mr T outside the Empress State Building and they went into reception together. Having been frisked by security, Mr T was ushered upstairs to the hearing room. My colleague was denied access as his name was “not on the list”. My colleague queried this given that the hearing was “in public”. He was told it didn’t matter, his name must be on “the list”.

My colleague asked to speak to the Investigating Officer and explained his role. Pursuant to Regulation 30 (3) of the Police (Conduct) Regulations 2012, Mr T was (irrespective of any argument that this hearing was allegedly being held in public!), entitled to attend the hearing accompanied by one other person as an observer and my colleague was that person. The Presenting Officer promptly authorised entry.

My colleague was then escorted to the hearing. Here’s what appeared on the hearing room door:

Public Police Disciplinary Notice.
Public Police Disciplinary Notice.

 

 

I must say that I found my colleague’s experience intriguing.

Metropolitan Police hold their misconduct hearings at Empress Buildings. According to their website, “any member of the public or press wishing to attend a misconduct hearing may apply to do so but due to limitations on space and capacity, attendance at the hearing will be administered and booked by application”.

Should you be interested, you must then complete and submit an application providing your full name, address and date of birth.

The lucky few successful attendees are then sent a confirmation email but admission to the hearing is conditional. They must produce their personal registration letter (confirmation email) that was issued by the hearings unit and supporting photographic identification (passport, and/or driver’s licence), along with proof of address (ie a recent utility bill).

Needless to say, my colleague reports that no members of the public attended any one of the five days of the hearing.

Police Disciplinary Hearings Restrictions

Having checked out the websites for most of the other police forces in England and Wales, the Metropolitan Police’s conditions are fairly standard. There are however a few quirks here and there.

West Yorkshire Police state that notice of a public hearing will be made not less than five days prior to the hearing but that applications to attend “must be submitted within 48 hours of the notice being published”. This could effectively be a three-day window.

Most stress that space is limited. Thames Valley Police are bold enough to announce that “available space will limit numbers of the public attending to six people including members of the public”.

Should you be fortunate to apply in time, be selected, and have the necessary proof of ID with you, there’s still no guarantee that you will actually sit in on the hearing. Some like Gwent Police openly admit that “The Public/media will be given access to a room at Gwent Police HQ” which will broadcast “a live feed of the hearing”.

Consequences of Police Policy

To increase public trust in our police force, the police should freely and unconditionally open their doors to members of the public at disciplinary hearings.  Otherwise they are in danger of appearing to be (literally) a closed shop and to encourage an assumption that police officers  judging  other police officers do not do so in a fair, unbiased and transparent way.

For example, Deputy Chief Constable of Essex Police Derek Benson claims that “Our intention will be to hold these hearings in public and make them as accessible as possible.”

But his force’s restrictive conditions (shown here) suggest to me that Essex Police (along with other forces) are paying only lip service to the concept of holding disciplinary hearings in public. In reality, they are putting many obstacles and discouragements in the way of the interested public.

This undermines the reputation of the police as being unbiased and effective in the investigation of crimes or misdemeanours committed by their own.

In the case of Storer v British Gas plc, the coded door lock was an actual physical barrier which prevented all access to the public. There was, the Court said “no chance of a member of the public dropping in to see how Industrial Tribunals (as they were then) were conducted, and the fact that none attempted to does nothing to show that this Tribunal was conducting the trial of the preliminary issue in public”.

What would the Court of Appeal make of the various barriers being put up by police forces around the country?

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Does an Unjustified Taser Assault Point to a Wider Trend?

Iain Gould solicitor, asks if Taser assaults point to a wider trend.
Iain Gould solicitor, asks if Taser assaults point to a wider trend.

By Iain Gould, solicitor

I have just settled a disturbing Taser assault case for Cornelius Thomas (details used with permission) against West Midlands Police.

I’m concerned about Mr Thomas’ personal experience, and also what this case says about police use of Tasers.

Taser Assault of Mentally Ill Man

Cornelius, who was aged 35 at the time of the incident, has a psychotic illness which has been diagnosed as bipolar affective disorder.

His condition first appeared in 1999 and he has received help from mental health services from 2001 onwards due to it repeatedly recurring.

On Friday 10 June 2011, he sadly suffered a deterioration in his mental state triggered by a combination of life stressors and a failure to take his medication.

After a mid-afternoon visit by his mental health doctor, Cornelius’ mental health team decided that he should be sectioned under the Mental Health Act. The team requested police assistance and an ambulance as this involved taking Cornelius to a psychiatric hospital unit and depriving him of his liberty.

Four Officers from West Midlands Police were assigned and, that evening, met the mental health team outside Cornelius’ home in Birmingham.

Cornelius, who was unaware of the decision to section him, had been out of the house with his 8-year-old daughter. At about 8pm he arrived home in his car with his daughter safely in the back seat. He saw two police cars and an ambulance near his house.

What happened next is a matter of dispute but Cornelius maintains that he was manhandled and then Tasered multiple times despite being non-aggressive and simply trying to escape from the officers into the safety of his own home.

In turn, West Midlands Police suggest that Cornelius was violent and uncooperative and in their Defence which was filed at court, admit that Cornelius was forcibly pulled from his car and Tasered four times:

  • in his chest, then
  • to his upper torso, then
  • to his torso again, before
  • finally in his back.

On each occasion he was Tasered, Cornelius said he felt a surge of electricity, intense pain and fear.

Cornelius told me that each Taser assault resulted in him falling to the ground suffering multiple minor soft tissue injuries, but he managed to get up and move a little closer to his front door.

On the final occasion that Mr Thomas was Tasered, he says that both his hands were in full view and that he was no threat. At this point Cornelius had his back to the police, his left hand on the door handle, and his right hand on the keys in the lock. Despite this, he was electrocuted again.

After the fourth Taser assault brought him to the ground Cornelius was handcuffed and transported to hospital where he was de-arrested and detained under Section 2 of the Mental Health Act 1983.

Following a medical examination, a Taser barb that had become embedded in the skin of his chest was removed.

Police Taser Assault Compensation Claim

Cornelius initially instructed non-specialist local solicitors who formally submitted a claim saying that West Midlands Police were negligent in their decision to deploy Tasers.

Following investigation, liability was denied, the Defendant maintaining that use of the Taser was “lawful, justified and proportionate in the circumstances”.

In response, his then solicitors advised Cornelius that the prospects of success were not good enough to “justify …proceeding further” and promptly closed their file.

Undeterred, Cornelius sought me out following research on the internet as a specialist in actions against the police and in particular the inappropriate use of Tasers.

In my opinion the claim had been poorly framed and investigated.

Cornelius gave a very credible account of what had happened. On his version of events it appeared to me that the officers had acted with unnecessary aggression and coercion rather than care and compassion.

I thought Cornelius had good prospects notwithstanding what his previous lawyers described as “the glaring inconsistencies between the account given by Mr Thomas and …. the Police Officers involved at the time of the incident when he was sectioned under the Mental Health Act”.

My confidence in Cornelius and his Taser assault claim has now been proven. He has agreed to an out-of-court settlement of substantial damages from West Midlands Police following the issue of court proceedings.

You can read more about Cornelius’ experience in The Mirror.

Taser Assaults on Mentally Ill Black People

But what of the wider picture?

I have recently commented on statistics that suggest that black people are three times more likely than white people to be involved in Taser incidents.

The research shows the electric stun gun was drawn, aimed or fired 38,135 times in England and Wales over five years.

In more than 12% of cases Tasers were used against black people, who make up about 4% of the population.

I have long maintained that there is a growing trend for the unnecessary and unreasonable use of Tasers (see here, for example).

This latest research proves a disproportionate use against a certain ethnic group.

Of that community, can it also be said that there is yet further disproportionate and excessive use of Tasers against those with mental health issues?

Matilda MacAttram of the campaign group Black Mental Health UK, maintains that there is emerging evidence that police are using Tasers against people with mental health problems, particularly those from African-Caribbean communities.

She is quoted as telling the BBC, “There’s an increasing amount of data, both anecdotal and also concrete, which show this supposedly “non-lethal” weapon is being used against people who are in a very vulnerable state”.

Cornelius Thomas would, no doubt, agree.

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Why the Police Disciplinary Tribunal Failed Alex Faragher

Photo of Iain Gould, solicitor, who discusses why a police disciplinary tribunal failed Alex Faragher.
Iain Gould, solicitor, discusses why a police disciplinary tribunal failed Alex Faragher.

By Iain Gould, solicitor

This afternoon, a public police disciplinary tribunal decided on the seriousness of misconduct by two Officers who had admitted breaching the standards of expected behaviour.

The hearing was in respect of a complaint lodged by my client, Alex Faragher. I have previously blogged on this case here, where I explained why police misconduct investigations must be reformed and later asked if the police are guilty of gross misconduct.

Sadly, my comments in the conclusion of the earlier post about a perception of bias have been borne out by today’s proceedings.

The disciplinary panel at today’s tribunal was made up of two senior police officers, Assistant Chief Constable Marcus Beale (Panel Chairman), Detective Superintendent Blackburn, and an independent lay individual, David Bowden.

Police Disciplinary Tribunal Finding

After consideration of the facts and on the basis of the Officers’ record, the disciplinary panel decided that their behaviour was misconduct only rather than gross misconduct.

I am dismayed by this verdict.

Is it right and proper that these two men, who admitted their disgraceful misconduct, continue to be employed as police officers for West Midlands Police?

After much publicity, certain changes have been introduced to the way that police officers are disciplined so as to create a “more robust, independent and transparent” police disciplinary system.

One of the changes introduced is holding misconduct hearings in public. As I have previously said, that’s a start.

Sadly for Ms Faragher and so many others, the system hasn’t changed materially in that the police continue to prosecute, defend, and sit in judgement on themselves.

Disciplinary Tribunal Punishment

Assistant Chief Constable Marcus Beale said the voicemail comments fell “substantially below what is expected of a West Midlands Police officer”.

However, he added: “The panel assess that the breach does not require the full range of sanctions, and that it amounts to misconduct.”

The punishment? Both Officers have been issued with written warnings.

My client, who attended both days of the police disciplinary tribunal, is extremely disappointed with not only the process, but also the findings, and result.

As a woman who was an alleged victim of domestic violence, all she wanted was to be treated with respect and professionalism. After being treated so badly by the two Officers she feels that the disciplinary tribunal has added insult to injury by letting the Officers off the hook.

She is also concerned that this sends a message about how West Midlands Police treat victims of crimes (in particular domestic violence against women) and that others might be put off reporting crime.

The panel at the police disciplinary tribunal had an opportunity to right a wrong and deal with these concerns. They failed.

Ms Faragher is now en route to ITV studios to be interviewed. The panel at the police disciplinary tribunal and two Officers may think that this matter is now settled. But for her, this story is not over.

UPDATE 29 October 2015: Click here to watch the tv news report.

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Are the Police Guilty of Gross Misconduct?

Photo of Iain Gould, solicitor, who discusses gross misconduct in police matters.
Iain Gould, solicitor, discusses gross misconduct in police matters.

By Iain Gould, solicitor

I have previously blogged about the misconduct proceedings brought against two West Midlands Police Officers due to commence today, 26 October.

To recap, my client Alex Faragher called West Midlands Police to lodge a complaint of domestic violence. The Officers assigned to her case, subsequently called her mobile to discuss the allegation. When the call went to answer phone, they inadvertently left an expletive ridden voice mail.

In the voice mail, you can hear these two men calling this victim of domestic violence a “f….. bitch” & a “f….. slag” before suggesting that they “go back,  f.…… draft the statement out ourselves and then just get the bitch to sign it”.

Ms Faragher lodged a complaint about the voice mail and the Officers’ subsequent behaviour at the Police station as regards the preparation of her statement of evidence.

Police Misconduct Hearing

I am pleased to report that at a public hearing today, and despite the best efforts of the force’s Professional Standards Department during the course of the investigation to dilute the misconduct so that it related to the indisputable voice mail only, the Officers admitted all allegations of misconduct, i.e. in relation to the voice mail and conduct at the Police Station.

Apparently recognising the seriousness of the situation, one of the officers, PC Guest, repeatedly apologized, according to today’s newspaper reports.

Gross Misconduct in Police Matters

The issue for the tribunal (made up of two senior police officers and an independent lay person) to now decide is whether the Officers’ conduct amounts to just misconduct or whether their behaviour is so serious as to qualify for gross misconduct. So, what’s the difference?

Misconduct is defined as “a breach of the Standards of Professional Behaviour”.

Gross Misconduct is defined as “a breach of the Standards of Professional Behaviour that is so serious as to justify dismissal”.

(see Para 29 Schedule 3 Police Reform Act 2002).

This is not very helpful.

But, when you recognize that this an employment matter at its heart, things become clearer.

Gross misconduct in that context is either deliberate wrongdoing or gross negligence by the employee (police officer) which is so serious that it fundamentally undermines the relationship of trust and confidence between the employee and employer (Chief Constable).

Today, barristers employed by both officers made representations to the panel that the admitted misconduct was simply that, misconduct. The problem for the Officers is that:

  • the eyes of the world (given that the hearing is in public) are upon them, and
  • in my opinion, the behaviour (as captured on voice mail) is so extreme that it has brought the force into disrepute.

A finding of gross misconduct and dismissal without further notice must be the only possible sanction.

We should know tomorrow.

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

By Iain Gould, Solicitor

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

According to statistics just released by the Home Office to the BBC, black people are three times more likely than white people to be involved in Taser incidents.

The research shows the electric stun gun was drawn, aimed or fired 38,135 times in England and Wales over five years.

In more than 12% of cases Tasers were used against black people, who make up about 4% of the population.

I have long maintained that there is a growing trend for the unnecessary and unreasonable use of Tasers (see here, for example). Now, we have concrete evidence of their disproportionate use against a certain ethnic group.

But why?

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

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

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

Taser Assault on Innocent Black Man

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Addressing Confirmation Bias

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

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

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

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

 

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Should the police use tasers on children?

This is a guest post by my colleague John Hagan. Like me, John is a solicitor who specialises in civil actions against the police.

Reflecting on my participation in a debate on the use of police tasers against children on the Jonathan Vernon Smith show (BBC Radio Three Counties, listen here) earlier this week, I am reminded of the famous words of Franklin Roosevelt – is it not the case that so often “the only thing we have to fear, is fear itself”?

Paedophobia

Mr Vernon Smith was advocating the increased use of tasers by the police (items which he described as “wonderfully useful tools” but which I might describe as “guns for electrocuting people”) as necessary to stem what he appears to believe is a rising tide of violent crime, lawless behaviour and societal breakdown particularly in urban areas blighted by poverty and people who, in his words, “have not gone to school”. He seemed to me to be painting a picture of inner- city Luton as something akin to the apocalytpic gang land of New York in the movie “Escape from New York”, and seemed to have a particular concern that the current generation of children, particularly teenagers, was more violent and out of control than 20-30 years ago. He spoke of his belief that there were ever more cases of “extreme violence where youngsters are involved.” This is in fact a common human misconception known as “paedophobia”, or fear of children, which can be found throughout the annals of recorded history. Perhaps because we know ourselves to be growing older we become fearful of the young who will supplant us; perhaps because we know nothing fundamentally bad happened to us in the past, but of course we do not know what the future holds, the present naturally seems more dangerous; perhaps because the news media thrives on the “excitement” of bad news rather than the general mundane civilities of life, it is very common for people to think they are living in a ‘worse’ time than their parents or grandparents did. Such sentiments are found being loudly expressed in every human generation.

Crime Statistics

But that does not mean they are true. The latest UK official crime statistics show, as they have shown in a continuous trend for several years now, that crime generally is falling and that violent crime in particular in at its lowest level since 1981. The April 2014 Crime Survey of England and Wales, prepared by the Office for National Statistics, shows that in 2013 on a proportional level, 2 in every 100 adults were victims of violent crime, compared with 5 in every 100 in 1995. This directly contradicts the basis on which Vernon Smith and others want to roll out ‘armament’ of the police. Violent crime is not rising; they are afraid of phantoms. And such a fear is not, in my opinion, any kind of sound basis for fundamentally changing the nature of policing in this country by replacing an unarmed constabulary with one which is armed with firearms as a matter of course.

I consider this to be the thin end of the wedge of militarisation of the police, leading inexorably towards the American model where every cop has a gun, and the population as a whole has 300 million guns, which is statistically almost one per person. Is that where we want to go ? Escalation – an ‘arms race’ between the cops and the robbers will ensue, and it is simply not necessary. We live in a more peaceful and gentle society than we did 20 years ago. And perhaps, I might have said to Mr Vernon Smith, there are other ways we should deal with the problems of the poverty and lack of education than shooting the children of the poor with taser guns.

Police Taser Abuse

My firm has represented numerous adult individuals who have suffered at the hands of police missuse of tasers. Such situations of “trigger happy” cops, overreacting with use of a taser in situations where it is not justified (such as this case about shooting a man  with a taser who has turned his back on them in his own home, or shooting a drunken man in the back, causing him to fall and knock his front teeth out) will increase as deployment of tasers proliferate and police officers carrying such weapons becomes the norm.

So I certainly do not think we should be using tasers on children, save in the most extreme examples involving older teenagers and real threats to life and limb. The fact that the host of a BBC show can quote with apparent approval statistics showing the increased use of tasers against children as young as 11-14 is I think a warning sign that we must guard our civil liberties against this type of ‘mission creep’ lest we suddenly find ourselves living in a world where such firearms proliferate , and rather than a stern word, misbehaving children are regularly dealt with by electrocution.

Red Tape

Indeed, Mr Vernon Smith who repeatedly accused me of “not living in the real world ” and being “irresponsible” and “very disrespectful” to the police, showed that his sympathy appeared to be with the person who pulled the trigger on the taser gun, rather than the person on the receiving end of it, on the basis that, to paraphrase slightly, there’s a lot of paperwork to fill in if you shoot people. Red tape, eh? An interesting perspective with which I can do nothing but disagree in the strongest possible terms.

Mr Vernon Smith put it to me that if the police wanted tasers was that not a reason to give them tasers? Absolutely not. For all the fantastic and often very brave work that police officers do, let us not forget that giving the police unquestioningly what they ask for is living in a police state. Our society preserves its liberty and happiness by checks and balances. If the police ask for something, I think it is ok to say “No”.

And to expect not to get shot down for it.

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Why the New Police Code of Ethics is a Waste of Paper

Picture of Iain Gould, Solicitor (lawyer) and specialist in actions against the police claims.
Iain Gould, Solicitor (lawyer)

By Iain Gould, Solicitor

I was interviewed for BBC Breakfast today about the new Police Code of Ethics.

The Code, which you can read on the College of Policing website, serves as a reminder to police officers to fulfil duties that seem basic and obvious.

Described by Chief Constable Alex Marshall as ‘a first for everyone who works in policing in England and Wales’, it applies to all those who work in policing, including volunteers and contractors.

The Police Code of Ethics applies the ‘Nolan’ Principles, which originate from the 1995 report prepared by the Committee on Standards in Public Life, and holds at its core the following principles:

  • Accountability
  • Fairness
  • Honesty
  • Integrity
  • Leadership
  • Objectivity
  • Openness
  • Respect
  • Selflessness

In addition, the Police Code of Ethics incorporates the existing Standards of Professional behaviour which covers the following:

  • Honesty and Integrity
  •  Authority, Respect and Courtesy
  • Equality and Diversity
  • Use of Force
  • Orders and Instructions
  • Duties and Responsibilities
  • Confidentiality
  • Fitness for Duty
  • Discreditable Conduct
  • Challenging and Reporting Improper Conduct

Despite referring to the Nolan Principles, I am struck by how little attention they are afforded. In the whole 32 page document only one page sets out the Principles and how they apply to policing in the UK.

As police officers are already obliged to respect and behave in accordance with Standards of Professional behaviour, which take up the vast majority of the new Code, this is merely a re-branding exercise.

What’s required is real reform.

Police Misconduct to Continue

Last year I wrote about why the existing system for dealing with police misconduct, which has been carried over into the new Police Code of Ethics, fails the public.

Then I found myself in the unusual position of agreeing with Sir Hugh Orde, Chairman of the Association of Chief Police Officers, when he said that it is ‘critical’ that there now be a fully independent police investigation system.

At the heart of any reform must be the introduction of a robust and objective disciplinary system.

The greatest encouragement to police corruption is a disciplinary system which makes no adequate effort to detect and punish corruption or misconduct.

The Independent Police Complaints Commission has proved useful but is woefully under-resourced and by reason of the Police Reform and Social Responsibility Act (2011), the majority of complaints against the police are dealt with in-house by the same Police Force.

As a result, investigations are often simply a whitewash.

Consider, for example, the experience of my client Pamela Boxford-White. She complained to Wiltshire Police following her (unlawful) arrest for Breach of the Peace using the internal police complaints procedure. Unsurprisingly, her complaint was rejected. She was told by a Chief Inspector in Wiltshire Police that the officers who arrested her had no case to answer and that no further action would be taken.

I had to issue civil court proceedings on her behalf to get the apology and compensation she deserved.

Only when government and the police make genuine and robust efforts to tackle corruption and misconduct in their ranks will it stop.

The introduction of a new Police Code of Ethics, while good for media coverage, changes nothing.

 

If you have suffered as a result of police misconduct and want help to sue the police, contact me using the online form below, on 0151 933 5525, or via my firm’s website.

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Will the Metropolitan Police Abuse their Body Cameras?

By Iain Gould, Solicitor

I was interviewed on BBC Radio 5Live today about the Metropolitan Police’s decision to pilot a scheme in which 500 front line officers will wear body cameras.

You can hear the interview here:

Body camera debate

There is considerable debate about the use of body cameras, which is not surprising given that the trial, if extended, will ultimately result in 10,000 to 20,000 Metropolitan Police officers using the cameras, with many more around the UK following suit.

In my opinion, such cameras have the potential to be crucial in re-establishing public confidence in the police. They can help members of the public in their fight against police misconduct and at the same time help the police reduce the number of complaints and police abuse claims made against them.

But the Metropolitan Police Commissioner, Sir Bernard Hogan-Howe, has said that such cameras will not be permanently switched on and that officers will be able to turn them on and off as they choose.

If this is allowed the body cameras’ role in providing a much-needed check and balance against abuse of police powers will be lost.

Picture of a police officer wearing a body camera.
Police officer wearing a body camera.

Many reasons why continuous recording will never happen have been put forward (Human Rights, employment regulations, and so on) but unless the deployment of such cameras is not subject to stringent guidelines, their effectiveness will be limited.

I would suggest a mandatory rule that such cameras must be turned on during any interaction with the public. If an officer fails to do so, not only should disciplinary action be taken when it is established that the camera was not deployed, but any footage obtained should be excluded from being used as evidence. This would have the desired effect of putting pressure on the police officers on the beat (and their superiors) to ensure that the cameras are routinely used.

As with any new habit, a ‘carrot and stick’ approach would help. The ‘carrot’ is ensuring that the difficult job of being a front line police officer is supported by impartial and contemporary evidence from a video camera. The ‘stick’ reminder of the threat of disciplinary action or a failed prosecution will help to ensure compliance.

Political motive for body cameras?

Unless and until such guidance is issued, the deployment of these cameras is little more than a political quick fix to try to restore public confidence.

What is really required is a change of culture where all police forces adopt a robust complaints system that is open and transparent and where police officers are held to account. The use of body cameras would go some way to providing the transparency required, but without a system of continuous use when interacting with the public, the Metropolitan Police’s motives could be seen as suspiciously self-serving.

If you have a police abuse claim and want legal help, contact me, Iain Gould, using the online form below, on 0151 933 5525, or via my firm’s website.

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Image credit: West Midlands Police on flickr.

‘Can We Trust the Police?’- ITV ‘Tonight’ Programme

Picture of Iain Gould, Solicitor (lawyer) and specialist in actions against the police claims.
Iain Gould, Solicitor (lawyer)

By Iain Gould, Solicitor

Recently I was interviewed for an ITV ‘Tonight’ programme about trust in the police.

The programme, which deals with police misconduct, will be broadcast on ITV at 7.30p.m. tonight, Thursday 13 February 2014.

As a solicitor who specialises in police misconduct claims the producers sought my input on a number of issues relating to the question of public confidence in the police. They also interviewed one of my clients who had suffered as a result of police misconduct.

The reporters commissioned a survey of 2,000 people. 1 in 5 of those surveyed felt that the police were not on their side. Almost 2 in 5 considered that corruption was a problem within the police.

Police Misconduct Compensation Claims

My clients Peter Garrigan and Karim Allison would agree with the people surveyed who were concerned about perceived police corruption.

Both of them had to fight all the way to civil jury trials to clear their names after they were prosecuted in criminal courts using false evidence submitted by the police.

In my experience, the police fabricate evidence. But they would have the public believe that the police misconduct cases I deal with are rare, and that things are improving. Indeed, David Crompton, the Chief Constable of South Yorkshire Police, sought to assure the public that his force was now a ‘very different place in 2012’ compared to the Hillsborough era.

And yet I am contacted on a regular basis by people like Peter Garrigan and Karim Allison. Ordinary men and women who have suffered as a result of police misconduct.

Despite promises that things have changed since:

  • Hillsborough;
  • Stephen Lawrence;
  • Jean Charles de Menezes;
  • Andrew Mitchell‘s ‘plebgate’ affair; and
  • countless other scandals,

I am not convinced by the police’s platitudes.

In the past I have supported calls for a Royal Commission (see here). I repeat that call again. It is time that the police account for their actions. It is the only way to restore public confidence.

If you have suffered as a result of police misconduct contact me using the online form below, on 0151 933 5525, or via my firm’s website.

Update

The programme can be seen via the ITV player for a short time by clicking here.

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How False Imprisonment Claims Can Be Made Against Private Security Companies.

Picture of Iain Gould, Solicitor (lawyer) and specialist in actions against the police claims.
Iain Gould, Solicitor (lawyer)

By Iain Gould, Solicitor

I recently settled an assault and false imprisonment claim for my client, Mark Holt. (He has agreed to me giving his details.)

Mark, 53, is a prominent local businessman and peace campaigner who has never been in trouble with the police before.

You can read his case report here.

False Imprisonment at a Train Station

On Tuesday 10 January 2012, Mark Holt (pictured below) was returning home from a day out in Liverpool with his wife. He attempted to pass through the ticket barriers at Liverpool Central Train Station but was prevented from doing so by a ticket inspector, and was then assaulted by a private security guard.

The guard was employed by Carlisle Security, a sub-contractor of Merseyrail, the station operators.

Photo of Mark Holt, who made a false imprisonment claim against a private security company.
Mark Holt, who made a false imprisonment claim against a private security company.

Mark, who was not misbehaving, was put in a headlock and forced to the ground by the guard, smashing his right front tooth and cutting his lip. He also injured his neck, shoulders, and back in the assault. He suffered psychologically and needed medical treatment.

Another Carlisle Security guard came to assist in pinning Mark to the ground while British Transport Police Officers were called.

To (literally) add insult to injury, the first security guard gave a false statement to the police who attended saying that Mark:

  • had thrown a punch, which missed;
  • that he was abusive and disorderly; and
  • that the guard restrained him out of fear for his own safety.

The police accepted this (false) version of events and arrested Mark for a breach of section 4 of the Public Order Act.

Mark was kept overnight in a police cell before being released twelve hours later on police bail.

The police later dropped the case.

Claim for Assault and False Imprisonment Against a Private Security Company

Private security companies will understandably be liable if their employees assault or imprison members of the public unlawfully but what about when a third-party, in this case the Police, imprison the individual? Who, if anyone, is liable?

Upon arrival, the Police Officers were given a version of events by the security guard. Although never challenged, I expect that the officers would say that they quickly formed a reasonable suspicion that a Public Order offence had been committed by Mark, so they were justified in arresting and detaining him.

The 12 hour detention would also be justified by the Police. They would say that as Mark had had a drink it was reasonable for his rights to be delayed at the Police station while he was ‘bedded down’ for the night. The next morning, he was interviewed and then released on Police bail.

So, on the face of it, the Police had acted lawfully.

But could the security company be liable instead for Mark’s arrest and imprisonment by the Police? Could they be liable for the officers’ actions even though the Police themselves had acted lawfully?

According to Lord Bingham in the case of Davidson v North Wales Police (1994), if a person merely gives information upon which a Police Officer decides to make an arrest, that person would not be liable. If on the other hand, that person’s conduct amounted ‘to some direction, or procuring, or direct request, or direct encouragement, that they (the police) should ….arrest’ that individual would be liable to an action for false imprisonment.

Here, I was of the opinion that the security guard had procured the Police Officers to act as they did and therefore the security company would be liable for both assault and false imprisonment.

CCTV Footage Helps Prove the False Imprisonment Claim

I obtained CCTV footage which proved that the security guard had assaulted Mark. It also showed the police attending and Mark being handed over to them by Carlisle Security’s guards.

In the circumstances, I claimed damages for Mark against Carlisle Security Ltd.

After I submitted the claim, Carlisle Security’s Head of Legal also reviewed the CCTV footage and responded by explaining that the company provide ‘byelaw enforcement officers’ who have the power to arrest and detain or issue penalties to passengers breaking Merseyrail’s byelaws.

He felt that his company’s security guards were acting correctly as they were assisting Merseyrail staff in enforcing byelaws, as they felt that Mark was not in a fit condition to travel. So he denied liability for Carlisle Security.

Following review by the company’s insurers, this denial of liability was retracted and liability admitted.

However, the insurers refused to settle at a reasonable amount so I issued proceedings for Mark Holt’s claim for assault and false imprisonment and eventually settled it for four times more than their original offer. This meant that Mark received a five-figure sum plus legal costs.

Private security guards, or ‘byelaw enforcement officers’, may seem like a cost-effective way for public transport operators to enforce their laws.

But, without the proper training, and recognition that their guards are acting with police-like powers, private security companies are at risk of more false imprisonment claims.

If you have a false imprisonment claim and want compensation contact me using the online form below, on 0151 933 5525, or via my firm’s website.

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Why must Court Proceedings be issued in a Compensation Claim Against the Police?

Actions against the police solicitor Iain Gould

By Iain Gould, Solicitor

Sometimes I get frustrated when helping my clients bring a compensation claim against the police.

What appears to be a perfectly straightforward case against the police where compensation should be paid can often result in a hard-fought battle.

When this happens I have no alternative but to issue court proceedings and fight for my clients all the way to a Court hearing.

This is expensive, time-consuming, and stressful for all involved, including the police officers themselves who, like my clients, must endure cross-examination at Court.

I had to take another compensation claim against the police to trial last week because the Metropolitan Police refused to settle.

My client, Luke Appleyard, 21, a student at the University of London, will shortly receive £13,250 from the Metropolitan Police after being attacked by a police dog.

(You can read the full case report here.)

So, taking his compensation claim against the police all the way to a jury trial was worthwhile. But was it really necessary?

Compensation Claim Against the Police for Defenceless Student

Photo of my client Luke Appleyard, who I represented in his compensation claim against the police
Luke Appleyard

Shortly after midnight on Friday 9 October 2009, Luke (pictured and details used with permission), of Carshalton, Surrey, was walking with a friend through Carshalton Park.

The park was dark and quiet.

Suddenly, an Alsatian dog appeared running quickly towards them. Without warning, the dog jumped up and bit Luke on his right forearm, which he had instinctively raised to protect his face.

The dog hung on for what Luke estimates was three minutes before Metropolitan Police officers arrived and released it.

Luke’s arm (shown below after the wounds had been cleaned) was bleeding heavily but the police insisted on searching him before getting medical help.

Photo of Luke Appleyard's arm after he had been attacked by a police dog.
Luke Appleyard’s arm after the police dog attack.

He was later told that the dog had been set on him as a result of mistaken identity, and that the police were searching for two robbery suspects.

Mr. Appleyard was taken by ambulance to hospital where his bite wounds were treated. He has since been left with about 20 scars on his right arm which makes him uncomfortable wearing short sleeves in public.

Luke Appleyard had never been in trouble with the police before. After the unprovoked attack, he:

  • was injured;
  • was upset;
  • suffered nightmares;
  • developed a fear of large dogs; and
  • lost confidence in the police.

As he received no apology or offer of compensation from the police, he decided to take matters further.

He found my details online and asked me to represent him in his compensation claim against the police.

After discussing it with him, I decided to take his claim. I initially represented Luke as a legal aid lawyer but later, when funding was withdrawn, acted on a ‘no win no fee’ basis.

I submitted details of Luke’s claim but the Metropolitan Police denied liability, saying that the police dog handler acted within the police’s guidelines when deploying the dog, ‘Storm’.

They claimed that Luke was running away, that the officer shouted a warning before releasing Storm, and that the force used was reasonable and necessary.

As this was a very different version of events to the one Luke had told me, I had no alternative but to take Luke’s compensation claim against the police to a full jury trial.

Compensation Claim Against the Police Wins at Jury Trial

On Wednesday 11 December, at the conclusion of the three-day trial at the Central London Civil Justice Centre, the jury returned a verdict indicating that they did not believe the Metropolitan Police officers’ account.

They heard evidence that the police officer in control of Storm was 110 metres away from Luke and his friend when the dog was released. The police dog handler claimed that he:

  • was able to make a positive identification from this distance;
  • shouted an audible command to Luke to stop running; then
  • released Storm.

I had seen the police officer’s statement long before the trial and was sure that this was impossible.

Manchester United’s football pitch is 105 metres from goal to goal.

Photo of Manchester United's football pitch.
View of Manchester United’s football pitch.

The officer claimed that he could see further than that distance in the dark and positively identify Luke and his friend as the people they were searching for.

The jury disagreed with the police’s version of events. They were not satisfied that Luke and his friend were running, or that the decision to release Storm was necessary or reasonable.

Paying for a Compensation Claim Against the Police

Instead of apologising and offering fair compensation, the Metropolitan Police fought Luke’s genuine claim so that he had no alternative but to go to an expensive, and unnecessary, jury trial.

The legal costs on both sides in Luke’s case will be many times more than the compensation he is paid. Because he won, all costs will be paid by the Metropolitan Police, who in turn are funded by taxpayers.

At a time when the Metropolitan Police’s funding is being closely examined, I hope those responsible will think long and hard about their conduct.

If you want to make a compensation claim against the police contact me, Iain Gould, using the online form below, on 0151 933 5525, or via my firm’s website.

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Image credit: cc licensed ( BY ) flickr photo by Paul: http://flickr.com/photos/vegaseddie/6160401568/

British Transport Police ordered to pay compensation after police fabricated evidence

Picture of Iain Gould, Solicitor (lawyer) and specialist in actions against the police claims.
Iain Gould, Solicitor (lawyer)

By Iain Gould, Solicitor

Yesterday, British Transport Police (‘BTP’) were ordered to pay £13,000 plus legal costs to my client Peter Garrigan after serving police fabricated evidence.

Peter, a 26-year-old Liverpool man, was awarded compensation after a unanimous jury verdict following a four-day trial at Liverpool County Court.

The jury found that:

  • PC Paul Quest of British Transport Police unlawfully assaulted Mr Garrigan;
  • the police unlawfully arrested him, issued him with a Fixed Penalty Notice for breach of s.5 of the Public Order Act and, most shockingly of all;
  • one or two serving officers of British Transport Police fabricated evidence against my client ‘in order to cause him to be punished for  something they knew he had not done or to escape punishment for their own misconduct’.

Compensation claim against the police after fabricated evidence

Peter (shown below and details used with permission) instructed me as I specialise in civil compensation claims against the police. You can read more about me and the work I do by clicking on the link.

Picture of Peter Garrigan, a man who won a claim against the police after they fabricated evidence against him.
Peter Garrigan, showing a black eye caused after a police assault.

I previously wrote about his case as it involved a jury trial, where unfortunately a jury failed to reach a verdict. After another jury heard the evidence, they all agreed that the allegations of police assault, misconduct and police fabricated evidence were proven.

Mr Garrigan bravely took on the police, endured three trials where his evidence was tested under cross-examination, and waited four years for justice. He had never been in trouble with the police before, or since. His impeccable character has been confirmed by this significant court judgment.

His case has parallels with the Andrew Mitchell ‘plebgate’ story, which I have written about here. Mr Mitchell is currently dealing with his own case where the police allegedly fabricated evidence.

This is yet another example of abuse by serving police officers that proves that the experience of Andrew Mitchell is not unique.

Both my client and I hope that the negative publicity and judicial criticism British Transport Police have received will make serving police officers think twice before fabricating evidence in future.

You can read a full case report by clicking on the link.

If you believe that the police fabricated evidence to prosecute you and want to claim compensation, contact me using the online form below, on 0151 933 5525, or via my firm’s website. Alternatively, read more by clicking the home page link.

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Can the Police be trusted to Police themselves?

(NOTE: 10 June 2015. This post has been updated to reflect that two of the police officers involved in the Taser story below were subsequently re-instated to Merseyside Police following their dismissal. My thanks to Jeremy Clarke-Williams of Slater and Gordon for bringing this to my attention.)

 By Iain Gould, Solicitor

Picture of Iain Gould, Solicitor (lawyer) and specialist in actions against the police claims.
Iain Gould, Solicitor (lawyer)

A man was forced to pursue numerous appeals to ensure that his police complaint was upheld.

At first blush, this would appear to be entirely unrelated to the Andrew Mitchell story, which I have previously written about.

In fact, they are linked by a common thread:

  • the mis-handling of complaint investigations by senior police officers, and
  • whether police can be trusted to police themselves.

Police Complaint after Taser assault in Liverpool

Picture of a Taser being discharged.In December 2009 PCs Simon Jones and Joanne Kelly, were on patrol in Liverpool with a Sergeant (who has since been dismissed for an unrelated matter), when they arrested Kyle McArdle for urinating in a street.

Mr McArdle was put in the back of a police van and shot with Tasers five times. (You can read my thoughts on the increase in Taser use by clicking on the link.)

The Taser barbs, metal hooks which attach to the body to transmit the electric current, were removed by an officer rather than a medical professional, contrary to guidelines (unless there is an ‘operational necessity’).

To add insult to injury, Mr McArdle was prosecuted for assaulting two of the officers. He was found not guilty at the Magistrates’ Court, and pursued a formal complaint.

Mr McArdle’s initial complaint was made to Merseyside Police themselves. He argued that the use of Taser force in the back of the police van was disproportionate. The police accepted that their officers should receive guidance on the use of their powers only and rejected the rest of his complaint.

So Mr McArdle was forced to appeal to the IPCC. They returned the complaint to the Force to consider whether the use of Tasers would have been considered proportionate if he had been lawfully arrested.

Merseyside Police’s leading Taser instructor said that the Taser assault was ‘necessary, proportionate, reasonable and in line with the officers’ training and Association of Chief Police Officers guidance’.

Given this opinion, the Force maintained their denial.

Mr McArdle again appealed to the IPCC. They re-considered the case and decided that, contrary to Merseyside Police’s internal investigation, the officers involved should have been served with notices for gross misconduct and interviewed under caution. PCs Jones and Kelly were then subsequently dismissed following the misconduct hearing.

UPDATE: I have since been informed that PCs Jones and Kelly appealed their dismissal to the Police Appeals Tribunal (“PAT”) and were re-instated to Merseyside Police following a hearing on 28 June 2014, in which their solicitor states that “the PAT unequivocally rejected the determination of the misconduct tribunal in the clearest possible terms”. Their reinstatement is confirmed in the IPCC’s updated press release which can be read on their website here.

Aside from the officers’ dismissal and subsequent re-instatement, the IPCC Commissioner criticised Merseyside Police’s investigation of the incident. In particular, he said, ‘it is a concern that Merseyside’s lead Taser instructor lacked objectivity and presented as fact the officers’ version of events without challenge’.

Andrew Mitchell’s ‘plebgate’ saga

Picture of Andrew Mitchell, 'plebgate politician' involved in a police misconduct matter.
Andrew Mitchell, ‘plebgate’ politician

The Andrew Mitchell affair (which I have commented about on numerous occasions but most recently here) revealed that the four police officers and their associates initially involved in the saga fabricated evidence about the incident at Downing Street on 19 September 2012.

At a subsequent meeting on 12 October involving three senior members of the police officer’s union, the Police Federation, Mr Mitchell sought to explain his comments and re-iterated that he had not used the word ‘pleb’, which is short for ‘plebeian’, or commoner.

Immediately after the meeting, Inspector Mackaill, one of the officers at the meeting, told waiting journalists that Mr Mitchell had not provided an account of the incident and called for his resignation.

Unfortunately for the officers at both the initial incident, which was caught on CCTV and can be seen here, and the subsequent meeting, which Mr Mitchell secretly recorded, the evidence showed that they had not told the truth.

West Mercia Police carried out an internal investigation into claims the three officers had been trying to discredit Mr Mitchell. It concluded that there was no case to answer for misconduct or gross misconduct and found that there was no deliberate intention to lie to journalists.

The IPCC, which oversaw the West Mercia investigation, said West Mercia Police had been wrong to conclude the three police officers had no case to answer for misconduct.

Deborah Glass, the IPCC deputy chair, said in her statement that the false account of the meeting provided by the police officers involved ‘indicates an issue of honesty and integrity, not merely naïve or poor professional judgment (sic)’.

She has called for a misconduct panel to be held to establish whether the three officers gave a false account in a deliberate attempt to discredit Mr Mitchell in pursuit of a wider agenda.

Home Secretary Theresa May said the IPCC’s report “made troubling reading”.

Police complaints procedure

Only serious complaints against the Police are directly referred to the independent Police watchdog, the IPCC, for investigation. These include cases involving:

  • death in custody,
  • serious injury,
  • matters involving sexual assault or sexual offences,
  • serious corruption, and
  • certain criminal offences.

All other cases are dealt with internally, by the appropriate police force’s complaints department (also known as the professional standards department (‘PSD’).

Up until May 2012, when the Police Reform and Social Responsibility Act (2011) came into force, all complainants had a right of appeal following local and supervised investigations by a PSD to the IPCC.

Now that right of appeal to an independent body is restricted to only the most serious of cases, so that there is less opportunity to hold the police to account.

In both the McArdle and Mitchell cases described above, serious issues meant that the IPCC were involved. The IPCC allowed the individual police forces to investigate and decide whether there was wrongdoing or not. Following internal investigations, the complaints investigators said that there had been no misconduct that required sanction.

On appeal/review by the IPCC however, it was found that such findings were seriously flawed.

So, can the Police be trusted to investigate themselves?

Photo of Sir Hugh Orde, Chairman of ACPO
Sir Hugh Orde, Chairman of ACPO

Speaking on BBC Radio, Sir Hugh Orde, the Chairman of the Association of Chief Police Officers and a former Chief Constable, said that it is ‘critical’ that there now be a fully independent police investigation system. (You can listen to the interview by clicking here).

I agree. The current system where the police investigate themselves is deeply flawed and, to restore public confidence in the police and the police complaints process, independent investigations in each and every case need to be conducted.

But is it enough simply to point the finger at the IPCC, who would no doubt say that the Mitchell and McArdle cases described above did not fit within the criteria, so that they had no authority to conduct investigations from the beginning?

Don’t the police have some responsibility too?

It strikes me that blaming the investigations process merely deflects attention away from the core issue: trust.

Public trust is damaged when we routinely hear about police misconduct at the rank and file level which is then covered up by their superiors or force complaints departments.

It is made worse when, rather than apologise and accept responsibility, senior police officers and their representatives blame everyone but themselves.

At today’s House of Commons Home Affairs Select Committee meeting, the Chief Constables of West Mercia, West Midlands, and Warwickshire Police, will explain why they declined to pursue misconduct charges against the three officers involved in the October meeting.

It is hoped that the meeting will be productive and not merely a repeat of the blame game played out in the media since September last year.

The Chief Constables should be reminded of Robert Peel’s principles to define an ethical police force, and in particular, this quote attributed to him: 

‘The police are the public and the public are the police; the police being only members of the public who are paid to give full time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.’

For more information on pursuing a civil action against the police go to www.iaingould.co.uk. Contact me using the form below or via my firm’s website.

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Images:

Taser: cc licensed ( BY ) flickr photo by Marcelo Freixo 50123:http://flickr.com/photos/marcelofreixo/8188041975/

Andrew Mitchell: cc licensed ( BY ) flickr photo by DFID – UK Department for…:http://flickr.com/photos/dfid/4603106939/

Sir Hugh Orde: cc licensed ( BY ND ) flickr photo by Liberal Democrats: http://flickr.com/photos/libdems/3940872401/

Why it’s time for the Police to face the music

Picture of Iain Gould, Solicitor (lawyer) and specialist in actions against the police claims.
Iain Gould, Solicitor (lawyer)

By Iain Gould, Solicitor and specialist in actions against the police

Peter Oborne’s article in The Telegraph today (click on the link to access it) makes a number of interesting points about police misconduct in the aftermath of the Andrew Mitchell ‘plebgate’ scandal.

I have previously blogged about the Mitchell case here, where I make the point that the police routinely fabricate and exaggerate evidence, and in this blog post where I question whether an ordinary citizen would receive the same treatment as a government minister.

Mr. Oborne says that, when first hearing about the Andrew Mitchell affair, his initial sympathies were with the police. As The Telegraph’s Chief Political Commentator he frequently sees senior politicians behave in a rude or overbearing manner to people they consider beneath them. With this in mind, it was not hard for him to believe the police’s claim that Mr. Mitchell used the word ‘pleb’ while insulting them.

But his views changed when, after a Channel 4 investigation produced CCTV footage which contradicted the police’s version of events, officers involved in the initial incident were arrested on suspicion of misconduct.

Picture of Andrew Mitchell, 'plebgate politician' involved in a police misconduct matter.
Andrew Mitchell, ‘plebgate’ politician

Further, Deborah Glass, the Deputy Chair of the IPCC, recently stated that a ‘clear the air’ meeting between Mr. Mitchell and serving police officers in the Police Federation resulted in more police misconduct.

She asserts that the three police officers concerned gave a false account of the meeting in order to add more political pressure on Mr. Mitchell, and questions the police’s own investigation which found that those officers had no case to answer for misconduct or gross misconduct.

As the internal report by the IPCC initially proposed disciplinary action, the matter is continuing with Home Affairs Committee Chairman Keith Vaz demanding an explanation.

Royal Commission into Police Misconduct

Mr. Oborne argues for a Royal Commission to restore confidence in the police who have been rocked by this scandal, Hillsborough, the Jean Charles de Menezes affair, the Stephen Lawrence enquiry, and many others.

One such case he refers to was that of my client Karim Allison. (You can read the case report on my website by clicking on the link.)

Karim Allison was prosecuted after making a complaint about a police officer.

Like Andrew Mitchell, he was the subject of a police conspiracy in that police officers joined together to fabricate evidence against him. Unlike Mr. Mitchell, Karim had to endure the stress and upset of a lengthy criminal prosecution which only ended on appeal at the Crown Court.

It was at that point that he instructed me as a solicitor who specialises in actions against the police.

Despite the high risks involved in accusing the police of misconduct, I pursued Karim’s case all the way to trial.

The police fought hard, denied liability and any wrongdoing, but after the trial a jury found that the officers involved had fabricated evidence. The finding, which was not appealed, confirms on the court record that the police lied to secure a conviction of an innocent man.

Picture of a protester holding a sign referencing Andrew Mitchell, involved in the 'plebgate' police misconduct case.
Protester holding a placard referencing Andrew Mitchell.

Police Misconduct investigation

I support Mr. Oborne’s call for a Royal Commission. There has to be an in-depth and impartial enquiry into at least:

  • police conduct at the lower level, where prosecutions are started and stories fabricated, and
  • at the higher level, where police officers who are guilty of misconduct, fabrication etc. are treated leniently by their superiors in the Police.

There can be no more easy rides for the police. Penalties must be harsher to act as a deterrent to future misconduct.

The option of early retirement must be removed for those in the Police who are found guilty of misconduct, and, where appropriate, they should be prosecuted in the criminal courts to the full extent of the law.

If ordinary citizens like Karim Allison are expected to defend themselves in court when charged with criminal offences, then why shouldn’t their accusers?

If you have been prosecuted for an offence where you suspect the police fabricated or exaggerated evidence, contact me, Iain Gould, using the online form below, on 0151 933 5525, or via my firm’s website.

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Images:

Andrew Mitchell: cc licensed ( BY ) flickr photo by DFID – UK Department for…: http://flickr.com/photos/dfid/4603106939/

Protester: cc licensed ( BY SA ) flickr photo by Alan Stanton: http://flickr.com/photos/alanstanton/8110650330/

Why did Christopher Jeffries’ false imprisonment claim fail?

Picture of Iain Gould, Solicitor (lawyer) and specialist in actions against the police claims.
Iain Gould, Solicitor (lawyer)

By Iain Gould, Solicitor

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:

  1. Mr. Jeffries is no longer a suspect in the case, and
  2. 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
  3. inviting Mr. Jeffries to meet with him to ‘discuss any lessons’ the police could learn from his treatment and experience.
Picture of Nick Gargan, Chief Constable
Nick Gargan, Chief Constable of Avon & Somerset Police

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.

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Image: cc licensed ( BY ) flickr photo by Policy Exchange: http://flickr.com/photos/policyexchange/6760509047/

Why has Taser use more than doubled in two years?

By Iain Gould, Solicitor

Picture of Iain Gould, Solicitor (lawyer) and specialist in actions against the police claims.
Iain Gould, Solicitor (lawyer)

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.

Picture of a Taser being discharged.

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.

Contact Me:

 

Image of Taser cc licensed ( BY ) flickr photo by Marcelo Freixo 50123: http://flickr.com/photos/marcelofreixo/8188041975/