Harassed by the Police

Iain Gould solicitor
Iain Gould, solicitor

By Iain Gould, solicitor

According to a joint report just published by Her Majesty’s Inspectorate of Constabulary (HMIC) and Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI), people who have suffered harassment or stalking are often being let down by the Police and Crown Prosecution Service.

The publication of the report is timely in that I have just settled a claim for a young woman who suffered harassment by a Police Officer whom she had turned to for protection.

In or around April 2011, my client who I will call Kate began working as the personal assistant to the owner of an escort agency.

During the course of her work at the agency, Kate became aware that some of those working for the agency were underage. Further, Kate became aware that the owner of the agency was committing sexual offences against a number of women and girls who worked for him, behaving in a threatening manner towards them and otherwise exploiting them. Kate also discovered that the owner of the agency was involved in forging documents for some of the women and girls who worked for him.

On 6 January 2012,  Kate bravely reported matters to Merseyside Police notwithstanding that she was scared of the owner of the agency and of the potential consequences i.e. the retribution he might take against her.

The information that Kate provided to the police led to an investigation into the owner of the agency. DS David Stubbs of the Merseyside Police Public Protection Unit (“PPU”) was allocated to the investigation.

Thereafter, DS Stubbs visited Kate at home. During the course of this visit, Kate tried to provide DS Stubbs with relevant information but DS Stubbs asked Kate a number of personal questions instead. Kate felt that DS Stubbs was behaving unprofessionally towards her and did not feel as though she was being taken seriously. Kate’s laptop and personal mobile telephone were seized from her, along with a laptop and two mobile telephones that belonged to the owner of the agency. Kate later gave a video recorded interview in relation to the criminal activities of the owner of the agency.

Thereafter, DS Stubbs visited Kate on a number of occasions, made a number of telephone calls to her and sent her numerous text messages from both his work mobile and his personal telephone. In total, DS Stubbs sent 264 texts to Kate including between 14 February 2012 and 29 February 2012, 73 texts without reply. This included, (for example) between 23:23 on 15 February 2012 and 00:37 on 16 February 2012, 15 texts sent by the Officer without reply and at a time when he was actually on annual leave. The manner in which DS Stubbs would communicate with and treat Kate was personal and/or sexual in content and nature.

For example, in or around February 2012, DS Stubbs sent Kate text messages in which he said that he was divorced and had children. DS Stubbs also said that he would like to take his dog for a walk with Kate.

Subsequently, DS Stubbs sent Kate a text message in which he said that he would like to take her to Cornwall and see her in a bikini. DS Stubbs said that he realised that he “should not be doing this” but that he could not help himself.

In or around March 2012, DS Stubbs sent Kate a message at or around 01:00 with words to the effect of:

I shouldn’t be saying this to you but you’re gorgeous, you’re a beautiful person inside and out and should be proud of what you have done.

On another occasion, DS Stubbs sent Kate a text message, saying words to the effect of:

…hope someone is spoiling you rotten like I would be.

Increasingly disturbed by DS Stubb’s conduct, Kate told DC X, another female officer involved in the investigation into the escort agency, that she would prefer not to have any further contact with Stubbs. Thereafter, the contact from DS Stubbs decreased. However, Kate would still receive the occasional text message from DS Stubbs, such as:

Hello trouble, how’s you 😉

The last time DS Stubbs contacted Kate was on or around 20 August 2012.

Due to DS Stubbs’ conduct, throughout the course of the investigation into and prosecution of the owner of the agency, Kate felt as though the police were using her and testing her. In or around January 2013, after having attended court one day, Kate had a conversation with DC X, whilst being given a lift home. Kate informed DC X of DS Stubbs’ conduct towards her. DC X urged Kate to pursue a complaint about DS Stubbs and advised her that someone would be in touch with her. DC X informed Kate that there had been other complaints about DS Stubbs’ conduct.

Kate did subsequently report matters and attended a video interview where she gave a detailed account of DS Stubbs’ conduct towards her. Around the same time, the owner of the agency was convicted of a number of offences. Kate’s initial report to the police had been central to those convictions being obtained.

Following Kate’s video interview, she received no follow-up or information from the police as to what was being done in respect of the information she had provided on DS Stubbs’ conduct. Consequently, Kate once again began to feel used by the police. After repeated enquiries, Kate was eventually informed that the Crown Prosecution Service (“CPS”) had decided that there was insufficient evidence to pursue a criminal case against DS Stubbs but that there would be an internal investigation into DS Stubbs’ conduct instead and that he had been suspended from his duties.

That internal investigation ultimately culminated in a full disciplinary hearing in September 2015. Despite DS Stubbs having used his work mobile telephone to send text messages to Kate, the content of the personal and/or sexual text messages could not be retrieved and so were not available to the disciplinary panel.

The Disciplinary panel found that even though the specific content of the texts could not be proven, they were satisfied that the volume and timing  of the messages was way above what could reasonably be expected from an Officer discharging his professional duty. DS Stubbs could offer no reasonable explanation for this, claiming they were for work purposes but offering no record, rationale or evidence as to what this Police purpose was.

Ultimately, DS Stubbs was dismissed for gross misconduct.

Whilst Kate was pleased with the outcome of the disciplinary proceedings, and comforted by the thought that DS Stubbs would not be able to exploit or harass other vulnerable young women, she was dismayed and deeply disappointed at the extent to which she had been ‘shut out’ of the investigation process, being kept entirely in the dark for long periods of time as to what was going on. For example, between March 2013 – May 2014, for over a year, Kate received no contact from Merseyside Police and when she did finally manage to get through to someone, she was coldly and uncaringly informed that for the purpose of the investigation into DS Stubbs she had been classified as a ‘witness’ not a ‘victim’ and hence had no right to expect to be kept updated, and no business contacting the force.

The Police also used a bureaucratic excuse not to formally record Kate’s initial report about DS Stubbs as a public complaint, further allowing them to keep her shut out of the process and thereby denying her entitlement to receive a formal written response/ apology for what had occurred.

DS Stubbs’ dismissal was reported upon by local and national press.

As part of a BBC 5 Live investigation, Kate was interviewed as to her experiences. Here is her account:

During the disciplinary process Kate contacted me for advice in relation to her situation.

DS Stubbs’ behaviour in my opinion clearly constituted harassment contrary to the Protection from Harassment Act 1997. Section 1 of this statutory tort provides that:

1. A person must not pursue a course of conduct –

a. Which amounts to harassment of another; and

b. Which he knows or ought to know amounts to harassment of the other.

  1. For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information, would think the course of conduct amounted to harassment of the other.

‘Harassment’ is not precisely defined in the Act, although it states that references to harassing a person ‘include alarming the person or causing the person distress’.

As well as showing that the behaviour complained of amounts to harassment, a Claimant must show that the Defendant knew or ought to have know that it amounted to harassment. The test of whether the harasser should have perceived his or her conduct in that way is an objective, rather than a subjective one. So, the Claimant need not show that the harasser appreciated the nature of his or her behaviour, but rather that any other reasonable person would have done so.

The Claimant also has to show that there was a ‘course of conduct’. This must involve conduct on at least two occasions.

A civil claim for damages may be brought in relation to conduct that amounts to harassment as defined by the Act. Damages may be awarded for, among other things, anxiety caused by harassment and for any financial losses resulting from it.

By reason of DS Stubbs’ conduct, Kate suffered anxiety, humiliation and distress; specifically DS Stubbs’ conduct towards Kate caused her to feel helpless, frightened, confused, suspicious and paranoid. At times Kate felt that DS Stubbs was questioning her credibility as a witness. DS Stubbs’ suggestive personal comments to her caused Kate to feel dirty, used, humiliated and embarrassed.

As a result Kate lost confidence and began to hate herself. She developed symptoms of severe anxiety and began to have panic attacks. Kate stopped socialising and disliked being in the company of others. She felt nervous and vulnerable, without any guidance or victim support.

Kate even had thoughts of self-harm and began to have involuntary movements at night, which resulted in her causing injury to herself. She suffered sleep disturbance, including waking during the night and vivid dreams and nightmares of acts of deliberate self-harm.

Kate lost trust in others, especially the Police. Contact with male Police Officers would cause Kate to experience severe anxiety, which could develop into panic attacks, and she became reluctant to speak to the Police.

Following DS Stubbs’ dismissal for gross misconduct, Kate began to fear that he would take revenge, which caused her to feel even more anxious and distressed, particularly when alone at night.

In light of DS Stubbs’ conduct, I was satisfied that Kate had a viable claim. I intimated a claim on her behalf against Merseyside Police and issued protective Court proceedings.

Following investigation, Merseyside Police denied liability (as a matter of course?) and yet indicated that this was a claim that they wanted to (quite rightly) settle. Police Forces are very often reluctant to admit liability, even when in reality they know that they are liable for the wrongdoing of their officers.

In November 2015, as part of her legal case for compensation against the Police I referred Kate to a Psychiatrist, who recommended that Kate undergo a course of Cognitive Behavioural Therapy, after which her condition could be further reviewed. Kate went on to have 18 sessions of CBT.

Following further review, it was concluded that Kate had suffered an Anxiety Disorder, which was caused at least, in part, by DS Stubbs’ conduct, which we might rightly call the selfish and callous exploitation of an already vulnerable woman.

At this point, I was able to assess the value of Kate’s claim and Merseyside Police agreed to a Joint Settlement Meeting. After protracted negotiations, Merseyside Police agreed to pay Kate £25,000 compensation plus costs.

The HMIC report, therefore, is welcomed in that it highlights serious cases of Police neglecting the victims of harassment and stalking (whether in person, or increasingly in the ‘digital’ age, on-line) and a culture of, frankly, not treating harassment as a ‘proper’, indeed very threatening and sinister, crime.

What I would also call upon the Police to recognise and tackle as an equal priority is the danger posed to clients such as Kate (and sadly I know from personal experience that her case is far from rare) who are being exploited and harassed by Police Officers themselves, who are abusing the special trust that has been placed in them and seeking, frankly, to take sexual advantage of vulnerable victims of crime. This in itself was highlighted in yet another report published in December 2016 by HMIC reported that abuse of authority for sexual gain was the “most serious” form of corruption facing Police in England and Wales.

One additional factor of concern, highlighted by this case, is the lack of support Kate received from Merseyside Police after making her complaint about DS Stubbs. Whilst her evidence was crucial in helping the force to weed out and remove a rogue, indeed predatory, officer, the Force seemed to have no concern for Kate herself during the long drawn out process. Kate was apparently no longer needed once the Force had her evidence, and the disdain with which they then treated her, apparently failing to recognise her absolutely legitimate interest in the investigation (in which she was the victim and had initiated the complaint) and simply to show her some support and compassion rather than simply ignoring her, added greatly to her emotional anxiety and depression during this very stressful time in her life.

The Force eventually did the right thing in regards to DS Stubbs, but failed to do the right thing by Kate – even to the extent of treating her as an inconvenience or even enemy when she tried to get information about what had happened to her complaint.

Sadly, Kate is not the first victim of crime subsequently subjected to exploitative behaviour by a male Police Officer, and nor do I believe will she be the last; but we can at least hope that in light of the recent reports, Police Forces as institutions will move more swiftly to identify and remove such officers and to treat their victims with proper respect and support.

 

The Price of Justice

I was pleased to be given the opportunity to speak on Channel 5 last week regarding the case of my client Ivan Martin in the documentary series “Where there’s blame, there’s a claim”.

I think it was understandable that the programme concentrated on the level of damages awarded to Ivan, and the other victims of serious personal injury claims (including the horrific Alton Towers roller coaster crash) who were featured in the episode, as obviously there is widespread interest in the amount of money people can recover in such cases, but I would like to take this opportunity to stress that pounds & pence are far from being the be- all and end- all in these claims, particularly in actions against the police which I handle, as opposed to negligently caused accidents. The victims of police misconduct have very often suffered not as a result of an unintended ‘mistake’ (no matter how catastrophic) but rather quite deliberate conduct – such as the misuse of police powers of arrest or a deliberate assault (in Ivan’s case, being shot in the back with a taser gun in his own home) and have then seen this wrong against them compounded by the officers involved – often as a team or institutionally – trying to deny my client justice by telling quite deliberate lies about their conduct,  lies which if believed might result in a criminal conviction and even incarceration – such as the threat Ivan faced when, after being shot by the Officers who came to his home, he was then prosecuted for allegedly assaulting them!

The victims of car crashes or other accidents will first go to hospital to receive treatment, before commencing their fight for compensation, which may or may not be straight forward. My clients will frequently first – after their visit to hospital for injuries inflicted upon them by the Police – have to face prosecution in the Magistrates or even Crown Court on false charges of resisting arrest, obstructing or even assaulting a constable. Only after they have dealt with months of stress and worry, and have cleared their names in the Court, can they bring their own case against the Police in the civil courts.

My clients also often have to go through a lengthy and demoralising process of pursuing a complaint with the relevant Police Force’s professional standards department, resulting most commonly in what feels to many of them distinctly like a ‘whitewash’ of a report – exonerating the investigating officer’s colleagues, and turning blame back onto my client – only to see the same Police Force admit liability/ speedily settle the claim once civil proceedings are commenced, begging the question of the honesty and integrity of the original complaint investigation. Very rare indeed is the apology any Force will offer for the misconduct of its Officers no matter how heinous.

All of this is why I want to stress that whilst compensation in terms of the monetary award of damages is important, the sense of justice being done is always my client’s priority. I think this is in danger of being lost sometimes in media coverage of civil claims which focus only on the amount of “compo”. Indeed, the very title of the Channel 5 series runs the risk of belittling the stories of the deserving people portrayed within it. Yes, we live in a capitalist society where “money makes the world go round” – this is true about everything – jobs, politics, science and medicine – but it does not mean that we only work for money. There is nothing indecent or opportunistic in pursuing a compensation claim after you have been injured or wronged any more than there is in expecting to be paid for the job you do, but in both cases it is about far more than that. We work because we can derive great pride and personal satisfaction from our achievements, irrespective of how much we are paid for them; likewise my clients pursue claims not with pound signs in their eyes, to “grab the money” but for those incalculable but absolutely important things which would otherwise be denied to them – vindication in the eyes of society; self- pride and self- worth; being able to hold to account those invested with special powers over the rest of us, which is absolutely crucial in any liberal democracy; the sense of a wrong being righted and justice being done by the Courts, without which a civil society cannot function, and would run the risk of breaking down into anarchy; to get a fair and proper hearing of their legitimate grievances; to be believed.

This is why I have clients who are prepared to risk exposure to substantial costs in order to pursue a claim where the damages might be only a fraction of that amount – because they are not looking at this ‘claim’ in economic terms but as a matter of principle; they want the feeling of justice won, not money.

This is why another of my clients said these words to me at the conclusion of a very long running and hard- fought case, resulting in a successful outcome at trial after years of stressful litigation –

“thank you so much for believing in me, you’ll never know how much that meant. Without people like you willing to offer support to those who have been wronged, justice would not be possible. The fact you believed in me offered me comfort and gave me the strength to challenge the inappropriate behaviour by people in power, who should be respectful, show integrity and protect. All of which were disregarded in my case causing me 5 years of considerable difficulties and greatly impacted upon my mental health. This not only affected me but also my family. You have now given me the opportunity to put this behind me and continue with my life from where it had stopped 5 years ago. I will always be forever grateful and long may you continue to ensure justice prevails for others who face similar challenges. ”

And this is why Ivan Martin, in his Channel 5 interview wanted to make clear what his priority was in pursuing his claim. Getting that sense of fair play; of those to blame being punished, not a claim rewarded. I will leave the last words to him –

If I was in a job and I done something wrong, there would be consequences for me, so why should they get away with it? I know the rules, they know the regulations, we both should be singing off the same hymn sheet. They do something wrong, consequences for them, end of.

Choosing the Right Lawyer (Part 1)

This is a guest post by my colleague and fellow specialist in civil actions against the police, John Hagan.

Photo of John Hagan, solicitor.
John Hagan, solicitor.

When instructing a lawyer to represent you in a claim against the police it is very important that you appoint someone who has the specialist knowledge and breadth of experience necessary to achieve regular success in what can be a complex area of litigation.

There is a certain overlap between claims against the police and general personal injury cases, but I would urge you to beware of putting your case into the hands of a personal injury solicitor, who deals day-to-day with accidental injuries, and who may only be ‘dabbling’ in the area of Actions Against the Police.

Rather, you need a police misconduct claim specialist, and I am pleased to say that I have a 20 year track record of success in these cases.  The experience that this has given me and my specialist team in assessing and analysing police claims means that unlike other lawyers who are less experienced, we do not prevaricate.

If I think you have a good case then I will tell you so, and I will push ahead with the case as swiftly as possible.  Equally if I believe your case will not succeed I will tell you that as early as I can and I will tell you it straight, and I will not allow the limitation period for your claim to be used up by any faint heartedness or hand wringing on my behalf.

I would like to demonstrate these points by reference to two cases which I have recently settled for £20,000 and £15,000 damages respectively.  Both cases involved hard-fought legal battles against West Midlands Police, but I was always confident that we would be successful and was prepared to see both cases through to trial if necessary.   Prior to my involvement, as you shall see, both of my clients had in fact consulted other solicitors who, in my opinion, did not have the relevant experience or knowledge to properly analyse and progress the claims as a result of which both clients suffered from delay, indecision and eventually rejection by their solicitors who – WRONGLY – told them that their claims would not succeed…

The case of Mr EJ

My client EJ is a black man who was stopped by the police in 2011 on suspicion of drink driving.

As EJ exited his car outside his home address he was approached by 7 police officers who questioned him in a hostile and aggressive manner and almost immediately laid hands on him.  EJ attempted to talk to the officers in order to explain his point of view ie that he did not believe he was over the limit (although he accepts that he had had an alcoholic drink) and that he did not believe that he had been driving dangerously.

EJ was a man of good character who worked long hours for the NHS as a mental health care assistant and he was shocked and upset by the immediately hostile attitude of the officers who confronted him.  He was completely outnumbered by the 7 police officers and denied displaying any violence towards them whatsoever – the truth of his account in this regard is surely borne out by the fact he was not charged with any offence of assaulting a police officer and nor did any of the officers involved in his arrest end up with as much as a scratch upon them.

EJ on the other hand suffered far worse than a scratch.  Given that the officers had almost immediately laid hands upon him and had not properly attempted to talk or reason with him, EJ tried to pull away from their grasp in order to avoid being handcuffed.  The officers moved in on my client and although what happened in the next few seconds differs between the accounts of EJ and the police officers, the end result was the same. My client felt a sudden pain in his upper left leg which caused him to scream out in agony, and which felt to him as if someone had kicked him from behind with extreme force.  All of the officers involved in fact denied kicking EJ’s leg, but 6 of them admitted that they had simultaneously laid hands on him (3 men on either side of my client) and had pulled him to the ground.

My client was left lying on the ground face down, with a cut to the right hand side of his face and enormous pain in his upper left leg.  My client’s femur, one of strongest bones in the body, had in fact been broken as he was manhandled to the ground by the police.  As a result of this extremely serious injury my client had to undergo 2 operations and was unable to work, unpaid for the majority of his time off work, for 9 months.  He and his family suffered considerable financial hardship as a result.

My client initially instructed a firm of personal injury solicitors. That firm subsequently went out of business and in March 2013 EJ’s case was transferred to a second firm of personal injury solicitors, who agreed to take his case on a ‘no win no fee basis’.

This second firm subsequently wrote to EJ in October 2013 advising him that, in their opinion, his prospects of succeeding in the claim were less than 50%.

This decision was said to be based on the following factors:-

  • That the incident had been investigated by the West Midlands Police Complaints Department who had found that the officers involved had no case to answer in regards to assault.
  • That it was EJ’s word against the statements of 7 police officers who were all arguing that the use of force against him was reasonable and required in the circumstances.
  • That EJ had been convicted of having been driving whilst over the limit on this occasion.

This was extremely disappointing news for EJ to receive.  The second firm of solicitors did correctly advise EJ that the limitation period for his claim would be the third anniversary of the incident ie September 2014.  If Court proceedings were not issued by that date, then the right to proceed with the claim would effectively be lost as the limitation period in English Law for a claim involving personal injuries is 3 years from the date of the incident.

This meant that EJ now had less than 12 months in which to find a third firm of solicitors, and one willing to act despite the second firm’s rejection of the claim.  Many would be disheartened by being left in such a situation, but fortunately, EJ got in contact with my firm and instructed us to investigate and pursue his claim.

As Police Claims Specialists we soon determined that EJ’s case had merit and we agreed to act on his behalf by way of a ‘no win, no fee’ retainer.

How was it that we were able to come to the CORRECT determination that EJ’s case in fact did have greater than 50% prospects of success, and why were we not dismayed by the same factors that had put the second firm of solicitors off the case?

Police Complaint

The rejection of our client’s police complaint by the West Midlands Police was known by us to be a ‘par for the course’ in that the vast majority of successful claims in which we represent clients start off with disciplinary complaints being rejected, and then go on to result in an award of damages being made to the Claimant.

There is a simple reason for this and it is that the complaint process is not independent but is handled by an Internal Disciplinary Investigation Team within the police force concerned, whereas a civil claim for compensation will go to Court and be heard by an entirely independent judiciary.

Long experience has taught me that the Police Internal Complaints Procedure is not fit for purpose, and that its agenda often seems to be to attempt to brush complaints under the carpet, with police officers, perhaps naturally, inclined to take the side of other police officers (colleagues in the very force with which they serve) and to favour the accounts of officers on almost all occasions over those offered by the victims of police misconduct.

In my opinion therefore, the second firm of solicitors had put far too much weight on the rejection of our client’s complaint by the police.

The number of police witnesses

Over the years I have represented many clients in successful claims where it is their word alone against that of one or more police officers and I know that it is not simply a numbers game of adding up the witnesses on each side.

We carefully assessed EJ’s evidence and concluded, I believe quite rightly, that he would come across as an honest and credible witness.

We carefully analysed the statements of the 7 officers involved and noted that whilst all the officers denied delivering or witnessing any kicks or strikes to our client’s leg, none of them were able to offer any alternative explanation as to how he came to sustain such a severe fracture to his upper leg.  The officers accounts in regards to how EJ came to injure his leg were extremely vague and in certain respects contradictory.  All of the officers denied either striking or holding the Claimant’s leg as he was taken to the floor by the combined efforts of 6 police officers, but could offer no explanation as to the fracture of his leg.  Furthermore, despite the officers accounts of a violent struggle with a muscular and well built individual, none of the officers had sustained any injury whatsoever (as highlighted above).

Two of the officers alleged that EJ was flailing or waving his arms aggressively prior to any attempt being made to handcuff him, but the other 5 officers present did not apparently see this.

One of the officers stated that EJ fell to the ground in an uncontrolled manner, whereas the other officers described our client being lowered to the ground whilst being held by several of them.

Three of the officers described hearing a snapping or popping sound as EJ was being overpowered and before he was lowered to the ground.  The statements of the other 4 officers however did not say anything about this.

I also crossed referenced the officers’ statements with the accounts given by the police to the doctors at the hospital where EJ was transported by ambulance from the scene of the incident.  In those records it states:-

According to police, was being restrained on front, legs crossed behind him and then forced him to flexion at knees.  Then sudden crack/pain”.

I noted that this account was completely contradictory of the accounts given in the police officers statements, none of whom talk about the Claimant’s legs being flexed whilst he was restrained on the ground.

So by utilising my experience of cases of this nature, and by a careful and detailed analysis and comparison of the evidence, I was able to come to the conclusion that simply because it was the word of 7 men against 1 did not mean that the police would be exonerated.

Conviction for drink driving

Of course the fact that EJ was convicted of having been driving on the night of the incident whilst over the legal blood alcohol limit did present a real problem for the case.  I was not proud of my client for having committed this offence, albeit that he had no prior convictions, and he was clearly in the wrong when he committed that offence – however that did not justify the behaviour of the police towards him, and specifically he did not deserve to end up with a severely fractured leg leaving him with permanent pain and scarring as a result of his actions.

The fact of my client’s conviction presented a legal obstacle which it is likely that a solicitor who is not experienced in police misconduct claims, might consider insurmountable.

Section 329 of the Criminal Justice Act 2003 prevents a claim for assault being brought by a person who suffered the assault whilst in the process of being arrested for the commission of an offence for which he was subsequently convicted (in this case drink driving).

The only way this hurdle can be overcome is to demonstrate to the Court that the assault suffered by the injured person was grossly disproportionate or that the police officers carrying out the assault did not believe that it was necessary in order to prevent the commission or continuation of an offence or to apprehend the person who had committed the offence.

Again, drawing on my experience of similar cases where I have had to deal with the obstacle presented by Section 329 of the Criminal Justice Act before my client’s case can proceed to trial, and also by reference to my detailed analysis of the evidence, I was satisfied that there were sufficient grounds for the Court to grant EJ permission to proceed with his claim and to reach a finding that in all the circumstances the police officers acts in causing a fracture to his upper left leg were grossly disproportionate given that:-

  • The offence which he was suspected of having committed had already come to an end.
  • The threat posed by EJ was minimal given that he was not armed with any weapon, he was outnumbered 7-1 by the police officers who were in attendance, and on the evidence of those officers he did not strike or land any blows upon any of them with any part of his body.
  • That none of the officers involved in EJ’s arrest were injured in any way, whereas EJ sustained a fracture necessitating multiple hospital operations and a 9 month absence from work.
  • There was nothing in EJ’s medical history or records as considered by the Orthopaedic expert who I appointed to prepare a report in his case to suggest that EJ was a particularly vulnerable individual who suffered from any medical condition which would have pre disposed him to suffering fractures more easily than any other person in the general population.
  • A leg fracture in the circumstances of this arrest, is a highly unusual injury to be sustained and spoke in itself of disproportionate force being used.  The femur is manifestly one of the longest and strongest bones in the body, and a fracture of the femur, is by common knowledge, an unusual injury to sustain.

Other crucial evidence

In a general personal injury claim there may be only limited classes of documents to obtain, eg hospital records and, if the accident occurred in the course of someone’s employment or at a public place, an accident report form.

In claims against the police numerous documents are generated relating to the arrest of the individual client and the actions of the police officers both before and after the arrest, in the form of computer logs, audio recordings, Custody Suite CCTV footage, interview tapes, police officer notebooks and statements, force medical examiner records etc.

Again, having a solicitor with the appropriate experience to identify all the different categories of document that should be produced by the police in a case such as this, and making sure that none have been overlooked (or deliberately withheld) is crucial.

I sought and obtained from the Defendant disclosure of the Association of Chief Police Officer’s ‘Use of Force’ manual which was the training manual used by West Midlands Police in regards to ‘take down’ techniques at the time of the incident in 2011.  This helped to demonstrate, that in my opinion, if a proper technique had been used it is likely that EJ’s leg would not have been fractured.

I also obtained the police radio log which showed that only 3 minutes had passed between officers first arriving at the scene and EJ being reported as on the floor with a broken leg.  3 minutes does not seem a very long time for the officers to have exhausted all avenues of resolution eg talking/reasoning with EJ – before resorting to violence in a situation in which the crime for which EJ was suspected was not itself one of violence, and nor had EJ assaulted any of the officers present.  In other words, was it necessary for the officers to handcuff/lay hands upon EJ at all?  Again I know from long experience that officers are trained to resolve conflict situation first by none violent methods of communication and negotiation with a suspect unless they are truly threatened with immediate danger which simply could not have been the case here.

I felt that this was another strong factor in my client’s case and gave me the confidence to assure him that we would see his case through to trial if necessary.

The progress of the Court proceedings

As stated above, my firm was instructed by EJ in October 2013 after his other solicitors had rejected his case.

After analysing the second firm’s file of papers we formally agreed to act on EJ’s behalf in December 2013 and set about gathering further evidence from the police.

We sent a formal letter of claim to the Chief Constable of West Midlands Police on behalf of EJ in May 2014.

In August 2014 West Midlands Police replied denying that any police officer had kicked EJ and requesting disclosure of EJ’s medical records in order for the case to be further investigated between the parties.  There was no admission of liability.

Owing to the approach of the limitation date (September 2014) my firm then issued a Claim Form in the County Court Money Claims Centre to protect EJ’s right to proceed with the case.

Medical evidence was obtained from an Orthopaedic Consultant in regards to EJ’s leg fracture in October 2014.

With the Defendant still having failed to admit liability, despite disclosure of the Claimant’s medical records we accordingly served the Court proceedings, along with the Orthopaedic expert’s report in December 2014.

A Defence was then served by the police in January 2015 in which all liability for EJ’s injury was denied and in which the Defendant stated that EJ should not be allowed to continue with the claim on the basis of Section 329 of the Criminal Justice Act (as discussed above).

Accordingly we had to issue an application to satisfy the Court that permission to proceed with the claim for assault against the police should continue, notwithstanding EJ’s conviction, and I am pleased to confirm that this was granted by the Court in April 2015.

Thereafter the case proceeded over the following months with the normal steps of exchange of documentary evidence, witness statements and questions to the medical expert with the police continuing to completely deny liability.

On a number of occasions we invited the police to attend a Joint Settlement Meeting with us to attempt to narrow the issues between the parties and secure an out of Court settlement, thereby saving legal costs for all concerned, but this was rejected.

Eventually, the case was listed for a 5 day trial to take place in October 2016.

Then in June 2016 the police put forwards an offer to my client to ‘drop hands’, ie that he discontinue his claim on the basis of no order as to costs.  In effect all that was being offered was that my client would be allowed to walk away from the case as if he had lost, without getting any damages but without having to pay any legal costs to the Defendant.

With my support my client quite rightly rejected this offer.  I identified the fact that the offer had been made as the first chink in the Defendant’s armour.

Indeed, in July 2016 the Defendant then made an offer to settle my client’s claim for a payment of damages but only in the sum of £3,000.

I advised my client that this was a very low offer in view of the extremely serious nature of the fracture he had sustained to his leg and the permanent damage it had caused to him, even taking into account the litigation risks of him not winning at trial.

Once again with my support therefore, EJ rejected the Defendant’s offer.

We however put forwards a counter offer in August 2016 to settle EJ’s claim for the sum of £20,000 damages.

We then continued to prepare the case for trial and were only a few weeks away from the trial when at the very end of September 2016 the Defendant accepted our offer and agreed to pay EJ £20,000 in compensation for the injuries which he suffered.

It had been a long hard fight over the course of no less than 5 years for my client to achieve justice, but working together with the right firm of solicitors he was able to do so.

Specialist Knowledge

Confidence and perseverance are required to see a challenging case such as EJ’s through to successful conclusion.

I am glad that he came to me before it was too late, and that he was not put off by the unduly pessimistic advice he received from his former solicitors who in my opinion did not have the requisite experience to realise that they had a winning case on their hands.

EJ now has 20,000 reasons to tell his former solicitors why they were wrong!

Calculating Compensation in a Claim Against the Police: A lesson in Damages.

Iain Gould solicitorI have previously blogged on the cases of Chris and Claire, both involving serious police misconduct in very different circumstances.

Chris brought a claim for assault against West Midlands Police having been injured by a Police Officer slamming his shield against his head.

Claire brought a claim for misfeasance in Public Office against West Mercia Police having been the victim of sexual exploitation by a Police Officer.

At an early stage in both cases, liability was admitted and an offer of settlement was made.

Notwithstanding the admission and offer, ultimately it proved necessary to issue Court proceedings and against the Police.  Why?

In both cases, the Defendant Police Force refused to put forward realistic offers of settlement and in the circumstances, it was necessary to issue proceedings so as to bring the respective forces to the negotiating table with the threat of a trial.

So how do we go about valuing such cases which at face value are so different?

Basic Principals

There are three types of damages available to victims of Police Misconduct; Basic, Aggravated and Exemplary.

  • Basic damages

Basic damages are designed to provide basic compensation for the loss and injury suffered as a result of the incident. They encompass:

a. pain, suffering and loss of amenity resulting from the wrongdoing (essentially the physical and psychological injuries inflicted);

b. any identifiable financial losses, for example loss of earnings, medical expenses, etc.

  • Aggravated damages

Aggravated damages are awarded at the Court’s discretion in addition to basic damages in exceptional cases where;

  • The Police have acted to aggravate the basic loss by causing injury to feelings, for example by insulting, humiliating, degrading, distressing and/or outraging the Claimant: and
  • It could result in the Claimant not receiving sufficient compensation for the injuries suffered if the award was restricted to a basic award only.

Accordingly, aggravated damages are usually only awarded in serious claims of wrongdoing.

The Court have given guidelines on the circumstances which might justify an award of aggravated damages including;

i. humiliating circumstances at the time of the incident: or

ii. any conduct of those responsible which shows they have behaved in a high-handed, insulting, malicious or oppressive manner.

iii aggravating features can also include the way litigation and trial are conducted.

Other factors which might found a claim for aggravated damages include;

a. if the conduct took place in public;

b. a lack of apology from the Police;

c. if the Claimant was physically or verbally abused;

d. if the Police were motivated by prejudice;

e. if the Police attempted to obstruct the investigation of a complaint by the Claimant;

f. any other feature of the Police’s conduct throughout the case.

Aggravated damages start at around £1,680 and go up to a maximum of about twice the award for basic damages according to the lead case of Thompson and Hsu v The Commissioner of Police of the Metropolis.

  • Exemplary damages

An award of exemplary damages is even more exceptional than an award of aggravated damages, as the object of exemplary damages is to punish the Police rather than to compensate the Claimant.

Exemplary damages can only be awarded if the Police’s wrongdoing constituted oppressive, arbitrary and/or unconstitutional action.

Exemplary damages will not normally be awarded at less than £8,400 according to the guidelines set out in the case of Thompson and Hsu.

Chris’ case

I have previously provided a full description of Chris’ case in my blog. (Read it here.)

As a result of the Police Officer’s actions in smashing his shield against Chris’s head, Chris suffered injuries as follows;

  • A superficial laceration of several centimetres to his right temple that required closure with surgical glue that was tender/painful for 6 weeks and which left a small indented scar that was only visible on close inspection.
  • Headaches for several months, initially as a consequence of the direct blow to the right side of the head and subsequently as a result of the tension caused by the stress of the complaint process.
Are police the real football hooligans? This photo of a riot shield injury shows the damage they cause.
Photo of Chris’ injury caused by a police officer’s riot shield.

By the time I was instructed, Chris had made a full recovery from his injuries.  Although he had immediately attended the hospital following the incident, he had not sought any further medical treatment.

In addition, Chris’ jacket had ripped in the melee, he missed some time off work and he had incurred some normal expenses.  All in all, his additional losses totalled £250.

  • Basic Damages

Notwithstanding the violent nature of the assault and how serious his injuries could have been,  Chris’ injuries were relatively modest.

So as to value Chris’ claim for Basic Damages, I referred to the Judicial College Guidelines which provide appropriate brackets for awards of damage for personal injury.  Of relevance was the guideline for “trivial scarring” (£1225 – £2250) and “minor brain or head injury – headaches” (£1575 – £9100).  I valued Chris’ claim for personal injury to be worth in the region of £3500.  Together with his claim for additional losses (£250), I therefore valued his claim to be worth £3,750.  So, how did Chris end up recovering £17,500?

  • Aggravated Damages

I was satisfied that this was a clear case where aggravated damages should be awarded, particularly in light of the relatively low award of basic damages Chris would receive for personal injuries (which as I have stated above,  were surprisingly minor notwithstanding the officer’s violent attack).

Why?

Sergeant A attacked Chris with his shield which he used as a weapon, specifically he turned his shield and hit Chris with the edge of his shield, a technique known as ‘blading’.  This is a technique taught in public order training specifically to be used only when encountering serious levels of violence or to quote West Midlands Police’s own complaint investigation report, “as a last resort”.

Further Chris was struck to his head (on what West Midlands Police describe as the “final target area”) and his injuries could have been so much more serious.

The incident occurred in full public view and could in fact have caused a far bigger public disturbance because both Chris and a number of his friends were angry and began to remonstrate with Police Sergeant A and other officers.

The officer’s conduct amounted to a gratuitous attack; it was deliberate rather than accidental.

The officer (and several of his colleagues) told lies about Chris’ behaviour, stating that Chris was abusive, aggressive and threatening.

Yet further, the conduct of Police Sergeant A was condoned by his supervising Inspector who stated that “from the start of the police operations, officers had been instructed to be robust but fair in their policing style and he believed that Police Sergeant A had performed his role in exactly the manner in which he expected”.

Furthermore, an additional aggravating feature of the case was in my opinion the Defendant’s Professional Standards Department deliberately failing to investigate Chris’ complaint adequately and objectively and perversely concluding that the actions of Police Sergeant A were lawful, necessary and proportionate.  Such a failure and conclusion upset Chris and exacerbated his legitimate sense of grievance.  The Defendant’s response to his complaint was designed to improperly shield (sadly no pun intended) Police Sergeant A from a finding of misconduct or other legitimate criticism.

Overall, I felt that the Court would award aggravated damages around twice the amount of basic damages ie something in the region of £7,500.

  • Exemplary Damages

Somewhat exceptionally, there were a number of features of this case that I considered made it an appropriate case for an award of exemplary damages.

On Chris’ account and that of Sergeant X (the Officer who lodged a separate complaint against the offender Sergeant A), Sergeant A had deliberately attacked Chris.  Notwithstanding that the officer was in no danger throughout the incident and therefore the force used was excessive and disproportionate.  Such action was clearly oppressive and arbitrary.

Furthermore, there was in my opinion a real prospect that Chris would establish at trial that the complaint process overseen by an Inspector was in reality a cover up.

By this stage, I had assessed Basic and Aggravated Damages combined to be worth in the region of £11,500.

I was of the opinion that the Court would consider this to be inadequate compensation for what Chris had been through and award exemplary damages in the region of £8,500.

Conclusion

I considered Chris was likely to recover approximately £3,750 in basic damages, £7,500 in aggravated damages and £8,500 in exemplary damages, ie a total of £20,000.

At an early stage of the case and without sight of any medical evidence, West Midlands Police offered £750 settlement.  On my advice, Chris rejected this offer.  After medical evidence was commissioned and full details of his claim presented, West Midlands Police offered £3,000 maintaining that his “needs are more than adequately met by a basic award”.  Notwithstanding West Midlands Police’s admission of liability, there was still a significant dispute as regards Chris’ demeanour at the time (according to West Midlands Police, “argumentative”, “abusive” and “argumentative”), and whether the complaint investigation had been pursued improperly and/or inadequately and whether the decision of the Professional Standard’s Department as regards the complaint was perverse, as I argued, or simply “within a range of reasonable conclusions arising from the material available”.

Allowing for litigation risk, I advised Chris to put forward a counter offer of £15,000.  16 months later and just 1 month before the trial window, the Defendant (in my opinion to avoid embarrassment of its officers at trial and a storm of adverse publicity), put forward a revised offer of £17,500.  Allowing for (significant) litigation risks, I had no hesitation in advising my client to accept.

Claire’s case

Claire was the unfortunate victim of sexual exploitation by PC Jordan Powell.  I have blogged about her case previously which you can find here.

As a result of PC Powell’s exploitation, Claire suffered psychological injuries specifically;

i) Immediately following the incident, she experienced disturbed appetite, disturbed sleep, low mood and a degree of weight loss.  She also lost confidence, which affected her self-esteem.

ii) Further, she felt “dirty”, “used” and “stupid” and as though she had done something wrong.  She felt that PC Powell abused her trust.

iii) Claire’s view of the police was also affected by the incident and she experienced negative thoughts towards the police.

In the circumstances, I felt it appropriate to commission a report from a Psychiatrist.  Following examination, the Psychiatrist concluded that; Despite the abuse Claire had suffered at the hands of her ex-husband, there was no evidence of significant psychiatric history.  However following the relationship with PC Powell, Claire had experienced marked psychological disturbance.

Prior to the expert’s assessment, Claire had received numerous counselling sessions for between six and nine months which she found to be helpful and beneficial.

The expert found that Claire was not experiencing any symptoms of acute mental disorder at the time of his assessment but that she had experienced some degree of psychological disturbance directly related to the incident with PC Powell, which led to issues that required addressing in formal therapy.  The expert opined that Claire experienced features of an Adjustment Disorder, with predominant disturbance of other emotions.  Although these acute symptoms resolved around two months after the end of the relationship with PC Powell, Claire had continued to express negative thoughts towards men and the police, which had been exacerbated by the incident, and continued to experience problems with confidence and self-esteem, although she was coping well and her capacity to work, care for her children and carry out activities of daily living had not been affected.

In respect of prognosis, the expert concluded that  it would be favourable if Claire received a further course of therapy, specifically Cognitive Behavioural Therapy (“CBT”) to fully treat her residual symptoms.  The expert was of the view that Claire should make a full recovery within four months of commencing treatment.

Claire subsequently underwent nine sessions of CBT.  In the discharge report, the CBT therapist confirmed that Claire had engaged well with treatment and she had  achieved a full recovery.

Basic Damages

Once again, I referred to the Judicial College Guidelines. According to the Guidelines, there are a number of factors to be taken into account in assessing psychiatric claims, namely: the injured person’s ability to cope with life and work; the effect on relationships with family, friends and those with whom they come into contact; the extent to which treatment would be successful; future vulnerability; prognosis; and whether medical help has been sought.  In respect of claims relating to sexual and physical abuse, the fact of an abuse of trust is relevant to the award of damages.

The Guidelines provided that for minor injury, the appropriate  psychological bracket was £1290 to £4900.  For the application of this bracket, the level of award would reflect the length of the period of disability and the extent to which daily activities and sleep were affected.

There were a number of features of Claire’s case that were relevant to determining the appropriate level of award; she obviously struggled with a number of symptoms, particularly in the first two months when she displayed symptoms of an Adjustment Disorder and the injury was most acute, and thereafter with the ongoing effects but overall her ability to cope with life and with work was not significantly affected. Further, Claire’s relationships with her family, including her children, and friends were not affected.  However, her relationships with men in general were affected, as was her relationship with the police. Recommended treatment was successful and Claire made a full recovery within 3 years.

I determined that there was a basis for saying that this was a sexual abuse case because, notwithstanding that the sexual contact between Claire and PC Powell could potentially be viewed as ‘consensual’, PC Powell’s abuse of power was a sexual abuse of power, in that he improperly commenced a sexual relationship with Claire.  There was undeniably an abuse of the trust that members of the public ought to have in the police.  It was also relevant to take into account that Claire did not necessarily recognise or acknowledge the abuse of power until just before or shortly after the relationship had come to an end.

Taking all matters into account, I assessed damages for Claire’s personal injury to be worth approximately £4000.  In addition, there was a claim for treatment cost and travel expenses of just under £1,000.  So Claire’s claim for Basic Damages was valued at £5,000 – £8,000.  So, how did she end up with £25,000?

Aggravated Damages

In my opinion, this was again a clear case where aggravated damages should be awarded,  particularly in light of the relatively low award of basic damages Claire would receive for personal injuries (which in some ways reflected the fact that Claire was of strong character and for which she should not be inappropriately penalised).

Why?

PC Powell targeted Claire because of her status as a vulnerable victim of domestic abuse. Further it was relevant that at the time the improper relationship started, Claire was in fear of her ex-husband and had sought the protection of the police.

It was also relevant that the incidents took place in Claire’s private sphere, including exploitation of her personal mobile telephone number, which she had provided to the police for contact in relation to the reports she had made to them, and progressed into her home, where Claire lived with her children, who were also vulnerable by virtue of their age.

The sheer number of messages Claire received and their explicit content was relevant, as was the fact that PC Powell was on duty during the course of much of his contact with Claire and at least on some occasions he was in uniform.

It was also an aggravating feature of the claim that Claire was the one to end the relationship, not PC Powell, which suggests that the relationship would have continued but for Claire’s realisation that the relationship was an abuse of PC Powell’s power.

In the circumstances, I concluded that this was an appropriate case for an award of aggravated damages around  twice the basic award and therefore expected Claire to recover between £8000 and £10,500 in aggravated damages.

Exemplary damages

There were also a number of features of this case that I considered made it an appropriate case for an award of exemplary damages.

While potentially the type of conduct involved in this case could give rise to exemplary damages on its own since an admission of liability for misfeasance in public office necessarily amounted to an admission that the officer acted with malice or bad faith, what really strengthened Claire’s claim for exemplary damages was the fact that PC Powell had abused other victims, which suggested that he was allowed to act with impunity, by his superiors  and further that PC Powell had a previous similar misconduct finding against him from 2008 but was nevertheless still serving, and yet further that rather than setting up a complicated ‘honey trap’ operation West Mercia could and should have contacted Claire much earlier so as to prevent or at least minimize PC Powell’s involvement with her.

This means that not only did PC Powell abuse his power but West Mercia Police knew that there was a risk of him doing so and took no or no appropriate action to prevent PC Powell from serving and/or protecting women to whom he posed a risk.  It appears no steps whatsoever, beyond the bare misconduct finding, which amounted to a ‘slap on the wrist’ had been taken to ensure that PC Powell would be prevented from abusing his powers and causing harm to vulnerable women.  It beggars belief that PC Powell was permitted not only continuing as a serving police officer but was specifically allowed to deal with vulnerable victims of domestic abuse on his own, taking into account his history.

In the circumstances, I concluded that despite the exceptional nature of the award, there was a real prospect that a Court would award exemplary damages to reflect the clear abuse of PC Powell’s power and the failure by West Mercia Police to prevent PC Powell from abusing his powers, in spite of his known history, and furthermore for the length of time it took for PC Powell to be investigated and thereafter convicted, which necessarily caused further distress to Claire. I felt that Claire could well recover exemplary damages of around £10,000.

Conclusions

I considered Claire was likely to recover between £4000 and £7000 in basic damages/damages for personal injury, £1000 in special damages. £10,500 in aggravated damages and around £10,000 in exemplary damages, i.e. a total of £25,500 – £28,500.

Settlement

At an early stage of the case and without sight of any medical evidence, West Mercia Police offered £3,000 in settlement.  On my advice, Claire rejected this offer.  After medical evidence was commissioned and full details of her claim were presented, West Mercia Police failed to  respond.  In the circumstances, I issued court proceedings. West Mercia Police instructed external solicitors and over several months, further offers of settlement were made (and rejected) – £9000 and £15000 – until eventually I was able to successfully negotiate a settlement of £25,000.

Both Claire and I were incredibly frustrated by the drawn out process that West Mercia Police forced us to adopt, in Claire’s words “rubbing salt in the wound”, but ultimately delighted with the settlement.   I am really pleased that having achieved justice in what she described to me as a ‘David & Goliath’ situation she is now able to move on with her life.

Calculating Compensation

As can be seen from the above, calculating compensation in a claim against the police is not straightforward, and could be a minefield for a person who does not have the advice of a specialist police claims lawyer.

Awards of ‘basic’ damages are often modest in cases of police misconduct if the physical injuries inflicted are not severe, notwithstanding the reprehensible nature of the wrongdoing, and therefore it is essential that the tools of the civil law, in the form of an injured person’s right to ‘aggravated’ and ‘exemplary’ damages are fully utilised to achieve a fair and just amount of compensation.

After all, an injury suffered ‘accidentally’ is not the same as one deliberately inflicted through police assault, abuse, false imprisonment or other form of misconduct.

As the conduct of both West Midlands and West Mercia police show in the cases of Chris and Claire, the police will normally start by offering a low award of ‘basic’ damages only to try to buy the case off cheaply, and the advice and assistance of an experienced practitioner in this area of law, such as myself, is essential to understand how to obtain aggravated and exemplary awards, and properly hold the police to account for their wrongdoing.

Contact me for help with your civil actions against the police compensation claim by completing the online form on this page.

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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