Aidan Walley, solicitor and specialist in civil actions against the police.
This week’s blog post is by my colleague and fellow actions against the police solicitor, Aidan Walley.
What should you do if your Police complaint is rejected? The answer is don’t be surprised, and don’t give up – consult an expert solicitor for advice on the next steps. Iain Gould has on many, many occasions on this blog highlighted what are not merely the gross inadequacies of the Police complaints system but its active antipathy and obstructiveness towards members of the public raising legitimate concerns. In this week’s blog post I will be adding to that roster of complaint stories – and demonstrating the silver lining: justice can certainly be done, through the civil claims system, when the complaints system lets you down.
At the time of these events, in September 2020, my client Ann was in her 60s, vulnerable by means of various health conditions, including a heart problem, and was residing in a block of supported accommodation in Birmingham.
One day in the early hours of the morning, Ann was at home asleep when she was suddenly awoken by the noise of a commotion in the communal corridor outside her flat. Alarmed, dressed only in her night clothes and barefoot, Ann went to investigate what was happening.
On opening the door of her flat, Ann saw three West Midlands Police officers, along with members of an ambulance crew and building security, restraining her neighbour “Peter”. One officer present was Police Sergeant Shafiq, who was standing on the opposite side of the corridor. On seeing Ann, PS Shafiq ordered that she return inside her flat.
Ann was acutely aware that Peter was a highly vulnerable individual who suffers from a number of physical and mental health issues. At this stage, Peter had been handcuffed and was being restrained on the floor, and appeared to be highly distressed. Ann knelt down next to him and placed her hand on his shoulder to comfort/ reassure him. She then stood up, but remained in the doorway to her flat, observing.
Ann then witnessed PS Shafiq pull Peter’s arms further up his back, causing him to cry out in pain. Ann verbally remonstrated with PS Shafiq for what she saw as an unnecessary use of force. PS Shafiq approached my client and again ordered her to go into her flat, to which Ann refused.
PS Shafiq then repeatedly pushed Ann on her left shoulder. The final push forced Ann backwards into her flat, and she fell to the floor. As she fell, one of her legs involuntarily made contact with PS Shafiq.
On hitting the floor, Ann was immediately aware of pain in her back and neck. PS Shafiq entered my client’s flat and stood over her, leaving Ann extremely fearful as to what he might do to her next. Thankfully he did not assault her further. She requested his name and collar number, but he ignored this request and left the flat.
Feeling at once shaken and outraged at what had been done to her, Ann picked herself up and followed the officers as they escorted Paul out of the building to an awaiting ambulance. In the presence of the building’s security guard, Ann again requested PS Shafiq’s name and collar number. In response, PS Shafiq muttered something inaudible to my client and then in a much louder voice said “Remember that”.
Ann returned to her flat and called 101 to report the actions of PS Shafiq. The following day she received a return call from an officer at the local Station. This officer informed Ann that he had viewed the Body Worn Video footage of the incident and asked her as to whether she recalled “kicking” PS Shafiq. Somewhat nonplussed, Ann confirmed that her foot had made contact with PS Shafiq while she had fallen (after he had pushed her). Shockingly, the officer then replied that Ann would now be arrested for assaulting a police officer.
A splendid example of customer focused and sensitive complaint handling, I’m sure we can all agree…
Ann was naturally extremely concerned at the suggestion that she was to be arrested, and later the same day attended the Police Station. There she spoke to a different Sergeant who said that he had also viewed the footage and that Ann would not be arrested. My client informed this Sergeant that she wished to make a formal complaint and thereafter the matter was referred to West Midlands Police’s Professional Standards Department.
The same day Ann attended her GP in relation to the injuries she had suffered as a result of PS Shafiq’s assault upon her.
The following month, October 2020, Ann received a response from the Professional Standards Department. Although her complaint was not upheld, and it was deemed that the Officer’s behaviour was “acceptable” it was proposed that –
“PS Shafiq engages in a debrief with his supervisor, who will be of at least the rank of Inspector, to reflect on the incident. This process facilitates the officer to be able to consider the actions he took, reflect upon them and take the opportunity to consider if more tactical verbal communication could have resulted in a less physical outcome”.
What a delicate way of saying that perhaps angry, testosterone- fuelled men on a power- trip shouldn’t push elderly women around?
Thankfully, Ann did not let matters rest there but instructed my firm to pursue a civil claim for compensation for the assault upon her and its psychological aftermath – including, of course, the menacing manner in which her first telephone complaint was met with an apparent attempt to ‘scare her off’ from pursuing the complaint, and the dissatisfaction she was left with when the final outcome was reached. All too often in these types of matter, the Police add emotional insult to the injuries inflicted, arising from their knee- jerk reaction which is to regard complainants not in the way they would victims of crime, but as hostile, anti- police actors who need to be ‘defeated’ or deflected.
The first response Ann received on the telephone – the threat of arrest – was just a more ‘naked’ version of this brand of anti-complainant Police mentality; the final written report was, in my opinion, simply a more politely dressed-up version of the same problem.
With my assistance, Ann pursued full blown litigation against West Midlands Police.
We rejected the Police’s first offer of settlement in the sum of £3,250 – a derisory amount for the physical and mental suffering they had caused to Ann – and, after I had obtained expert evidence to support her claim for both physical and psychological injury and issued Court proceedings, I was ultimately able to bring the claim to settlement for £20,000 damages, plus Ann’s legal costs.
Having your legitimate complaint rejected by the Police can be a frustrating and upsetting experience – but if you instruct the right solicitor, such as Iain Gould, John Hagan, or myself, justice can be done and the Police made to pay the price for all those acts of misconduct they’re not prepared to own up to.
Note from Iain Gould: Week after week, I share my knowledge and experience so that people can better understand their rights and options. If this blog has helped you, or if you believe in the importance of holding the police to account, please take a moment to leave a 5 star review. Your review is more than just feedback – it is a way to guide others towards expert representation when they need it most. Thank you!
In this article I discuss the increasing prevalence of Police Facial Recognition Cameras, whether their use infringes civil liberties/ rights and what you can do if you have been wrongfully arrested or detained as a result of Facial Recognition technology.
This is a continuance of last week’s blog post on the increasing number of arrests based on Police use of Facial Recognition Technology and the wrongful arrests which may arise as a result of its use.
Is there Ethnic Imbalance in the way Live Facial Recognition Works?
A Live Facial Recognition (LFR) camera takes digital images of a crowd moving through the “zone of recognition” in real time.
The LFR software then automatically detects individual human faces amongst the crowd, and extracts facial features from the image to create a “biometric template”.
The LFR software (the Genie in this particular bottle) then compares the biometric template with those of the faces on the pre-determined Police watch list.
The facial images from the crowd are compared against the facial images from the watch list, and the LFR system generates a “similarity score”, a numerical value indicating the extent of similarity between the faces. The operators of the system will have set a “threshold value” to determine when the LFR software will generate an alert indicating a possible match.
The decision-making process then reverts from the robot to the human: Police Officers must review the alerts and make a decision as to what, if any, further action to take.
The Police guidance set out in the Authorised Professional Practice for live facial recognition seeks to reassure us – “In this way, the LFR system works to assist Police personnel to make identifications, rather than the identification process being conducted solely by an algorithm.”
Early, legitimate, concerns that LFR algorithms were mis-identifying black people’s faces more often than white people’s, and women’s more than men’s, (see the Bridges judgment of the Court of Appeal, 2020 ) have to some degree been assuaged, and the pace of technological change is such that these algorithms are surely only going to become better and more accurate with each passing year. The Met Police point to a report commissioned from the National Physical Laboratory, which seems to confirm that LFR systems, when used at the highest settings, now produce no statistically significant difference in outcomes between demographic groups (i.e people of different genders/ ethnicities).
But the devil, as always, is in the detail. LFR algorithms have configurable settings for face detection – good quality frontal face images of sufficient size giving the most accurate identification results. The settings can be ‘lowered’ to increase the number of faces processed – but such a relaxation of the criteria, allowing poorer/less accurate images to be used by the system increases the “false match rate”.
As I highlighted above, at the highest ‘face match’ settings there were no false positives but at lower settings – casting the net wider – not only did “false positives” occur but they were disproportionality higher for black subjects than for Asian or white subjects – “The demographic variation in the nominated score distribution does not affect equitability if settings are such that the chance of a false alert is very low. However, if settings allow for a higher number of false alerts, these are likely to occur disproportionality within black or Asian ethnicities.” (NPL report, 9.3).
The NPL report goes on to state that the “False Positive Identification Rate” (FPIR) is equitable between gender and ethnicity and age at face-match threshold 0.6 and above. At face-match thresholds lower than 0.6 FPIR ‘equality of outcomes’ varies between demographic groups dependant on the settings of operational deployment, including the size and composition of the watch list and the number of crowd subjects passing through the zone of recognition during deployment, which led the NPL to caution – “Given our observations on the demographic variation in FPIR, we would recommend, where operationally possible, the use of a face match of 0.6 or above to minimise the likelihood of any false positive and adverse impact on equitability” (NPL report, 1.4.6).
All of this must be considered through the lens of the Equality Act 2010 – Chief Officers must demonstrate compliance with their non-delegable Public Sector Equality Duty (PSED) under Section 149 Equality Act 2010, particularly in terms of taking steps to “rigorously” understand and monitor their LFR system’s algorithmic performance in relation to statistical accuracy and demographic variants (which as, highlighted above, depends on the settings that its operators have implemented).
As the APP guidance enjoins its Officers, Forces must “Satisfy themselves that everything reasonable that could be done has been done to ensure that the software does not have an unacceptable bias on any basis, including on the grounds of race, sex, religion or belief. No system is every 100% non bias. There is always something within the system (and operator). Forces need to identify and understand the degree to which this occurs and then mitigate against this.”
Clearly, therefore, this is still an area of some concern, and needs to remain on our own – shall we say – ‘watch list’.
Practice not Theory: Legal Remedies for a ‘False Positive’ Arrest
As the views I have expressed in these posts make clear, I think a good argument has been made for the usefulness of this technology in modern day policing, and so I am prepared to concede the theory of the case. But that doesn’t alter the fact that I will always strive to bring to each and every individual case in which a person consults me because they have been unlawfully arrested/detained by the Police, an analytical attention to detail, a questioning of the facts to find out what went wrong –and a refusal to stop until the full truth has been uncovered. This is because whenever theory is put into practice, mistakes and abuses can occur, and when they do I offer my 30 years of success in litigation against the Police as proof of the fact that if there is a path for a wrongfully arrested person to achieve restitution/compensation, I will find it.
The checks and balances on this most recent of Policing tools already exist, and so, if you have been wrongly arrested on the basis of a supposed facial recognition match don’t hesitate to contact me for advice.
My daily job is holding Police power to account, and in regard to this new technological power, the following considerations are particularly pertinent –
have the LFR cameras been used in an overt way, or have they been deployed in a manner constituting covert surveillance, thereby potentially breaching the Regulation of Investigatory Powers Act 2000 (RIPA)?
have the algorithmic settings unfairly increased the risk of non-white faces being misidentified (clearly a problem which still exists despite significant improvements); or indeed have they been set so low, or provided with such inadequate material in the form of the ‘watch list’ (blurry/ low- resolution or older images), that the risk of “false positives” for all demographic groups is too high?
all the hazards and risks dependent in the human part of the process: i.e decision- making and deployment of Officers to respond to the potential face matches:
notwithstanding what the algorithm has indicated – is it reasonable to believe that a person identified by the LFR system actually is the person on the watch list?
is it reasonable, in all the circumstances of the case, to use force or threats of force to detain the suspected ‘match’ ?
have the Officers on the ground actually got the right person? – errors in this regard are bound to occur, just as much as they do in the deployment of ‘stingers’ against innocent people’s vehicles.
the Police and Criminal Evidence Act 1984 – in particular Code G (governing the rules of a lawful arrest) and Code D (identification procedures)
the Human Rights Act 1988 – use of LFR may engage Article 8 (the right to private and family life) and/or Article 9 (freedom of thoughts, conscience and religion), Article 10 (freedom of expression) and Article 11 (freedom of assembly and association)
has the authorisation for deployment of LFR been given by an Officer of senior rank (generally, not below the rank of Superintendent), defining the boundaries of time/ geography for the deployment and sufficiently justifying the same in writing?
The Authorised Professional Practice also sets out the ‘paper trail’ of documentation which must be created in support of each LFR operation, and which a lawyer such as myself would seek to obtain and interrogate in the event of a wrongful arrest occurring. These include –
LFR Standard Operating Procedure including the criteria for watch lists; sources of imagery; guidance for when an alert is generated and arrangements to ensure that the deployment is overt (e.g. signage) : Setting the Forces’ false alert rate in policy and assessing the success of deployment against these metrics to ensure ongoing proportionality of use and reassurance to the public
the written authority document for each LFR operation, outlining the aim of the deployment and, in compliance with the Human Rights Act, explaining how and why the deployment is necessary (not just desirable) and proportionate
Data Protection Impact Assessment (DPIA) : explaining what the “pressing social needs” are for each particular LFR deployment; why sensitive processing is needed to achieve the legitimate aim and why the purpose cannot be achieved through less intrusive means
Equality Impact Assessment (EIA)
Community Impact Assessment (CIA)
LFR training materials so that those Officers and staff using the technology fully understand its technical capabilities (and limitations) and how to properly respond to an alert.
In Conclusion
We can’t alter the pace of technological change, but we can ensure the integrity of fundamental rights and upon them we should accept no encroachment.
From here on the front lines, I am confident that Police misconduct experts such as myself, who:
know what they are doing
know how to obtain the necessary disclosure from the Police; and
can read between the lines to build our clients’ cases
will be able secure justice and win compensation for those wrongfully arrested as a result of Facial Recognition technology, using the existing laws and policy safeguards which ringfence its deployment, as set out above.
But as ever, those laws and rights must be exercised in practical terms to ensure that they are not lost, and that they fill both their primary purpose of compensating the wrong individual and secondary purpose of protecting others from similar harm, by policing the Police.
Let the Police have the best modern tools they want; lawyers like me will use the best traditions of the law to Police them when they misuse those tools – if you’ve been wrongly identified by facial recognition, seek expert legal advice as soon as possible – hold power to account, don’t unplug it.
How you can help me
I hope that you have enjoyed reading this week’s blog post and the many others available on this website. If you have, then I would like to ask you a favour – in a world in which large and non-specialist law firms (generally from a personal injury background) are increasingly throwing huge marketing budgets into online advertising in order to ‘capture’ Actions Against the Police clients – I need your help to ensure that those in need of real expert advice come to the best place for representation. If you value the insights and expertise which I share on this blog, and the results which I have achieved for the people whose stories are recounted here, please post a positive review on Trustpilot to get the word out. Every 5 star review I receive makes a big difference in helping those who need the right advice to come to the right place. Thank you!
In this article I discuss the increasing prevalence of Police Facial Recognition Cameras, whether their use infringes civil liberties/ rights and what you can do if you have been wrongfully arrested or detained as a result of Facial Recognition technology.
As an expert solicitor in claims against the Police, I am being increasingly consulted by people who have been the ‘mistaken identity’ victims of wrongful arrest due to Police facial recognition cameras. I expect such consultations will only increase as the use of this technology becomes ever more ubiquitous.
What is facial recognition technology?
Data obtained by the Guardian newspaper and Liberty Investigates found that the number of faces scanned by live facial recognition cameras last year doubled to near 5 million, and these figures are surely bound to rapidly increase as more and more Forces follow the trial first blazed by the Metropolitan Police and South Wales Police.
The Police are currently using three different types of facial recognition –
Retrospective Facial Recognition (RFR)
Operator Initiated Facial Recognition (OIFR)
Live Facial Recognition (LFR).
Retrospective Facial Recognition
Retrospective Facial Recognition (RFR) techniques are, as the name suggests, applied after a crime has been reported, and as part of the Police investigative process. Images of the suspect, taken from such sources as CCTV, mobile phone, dashcam or doorbell footage are fed into the RFR system which then compares them to the ‘mug shots’ of previous arrestees which have been retained on the Police National Database (PND).
When the RFR system flags a potential match, the accuracy of that match is then required to be reviewed by the investigating Officer to ensure accuracy, before an arrest attempt is made.
The benefits of automating this part of the criminal investigative process do seem quite obvious and are hard to argue against – provided that the ‘artificial intelligence’ result is not unthinkingly accepted by the human beings involved without the application of reason and common sense; and assuming, of course, that the result has not been ‘contaminated’ by data inputting or recording errors.
Operator Initiated Facial Recognition
Operator Initiated Facial Recognition (OIFR) is, effectively, an app on Police Officer’s phones, which they can use to photograph a “person of interest” and check their identity. The Police position is that this is a reasonable and proportionate alternative to arrest. If you are not who they think you are, the app should confirm this, and you should be allowed on your way.
However, the introduction of this technology must not be allowed to be used by the Police as a ‘backdoor’ to circumvent the long- standing tradition that you do not have to identify yourself to an officer (if he does not already reasonably suspect you of a crime), unless you are in control of a vehicle, and if a person has been detained, without arrest, for the purposes of being scanned for an OIFR check, and that result is negative – they will probably have the right to claim compensation for wrongful arrest, even if only for a short period of time.
The deployment of Live Facial Recognition (LFR) technology is probably the most controversial of these three practices. It has principally been spear-headed by the Metropolitan Police and South Wales Police. Other Forces are bound to follow, as the speed of change picks up.
Mobile LFR units (i.e. vans fitted with cameras) are deployed to locations where there are likely to be large crowds, in order to scan the faces of passersby in real time, comparing those faces to a ‘watch list’ of wanted individuals, identifying matches as fast as only an AI can think (i.e. in the blink of an eye), whilst the person is still in the vicinity of the LFR van. The system will then ping an alert so that its flesh and blood policing brothers can take action – if appropriate.
Home Office guidance makes it clear the buck for arrest continues to stop with the Officer on the grounds that all possible matches are only that – possibilities. Rules governing the need for reasonable suspicion and necessity for arrest, set down by the Police and Criminal Evidence Act 1984 (PACE), and which enable those who have been wrongly arrested in this country to seek restitution, remain fully in-play in these scenarios and the Police must not allow the AI system to replace their own brains or derogate reason, respect and dignity, or so we are promised –
“Facial recognition technology will never replace the need for human judgment, insight and empathy. This is not automated decision making – Police Officers will always make the decisions about whether and how to use any suggested matches.”
If the LFR system does not make a match between your face and that of a person on the watch list (that has been inputted into the system for this particular deployment), then your biometric data, i.e. the image/analysis of your facial features is supposed to be immediately and automatically deleted.
Given such parameters, I personally have no problem with the use of this technology in principle. The Police make a fair point when they say that this is really just a much more efficient, and hopefully more foolproof version, of the system of daily briefings that Officers have always undergone, wherein they are provided with the images of suspects to be on the lookout for – particularly in given areas or at certain times and events. Now, however, rather than each Officer on patrol having only one pair of eyes, the LFR system has a ‘thousand eyes’ and obvious technological advantages over human eyesight and memory.
In this respect, therefore, you could see the LFR camera van as the natural evolution of the age old ‘wanted poster’. It is not an infringement of civil liberties for an offender to be wary about going to a social or sporting event, or other busy ‘public square’ environment, for fear of being identified by LFR and I am not the type of lawyer who turns into a Luddite at the mere thought of such technology. The Police can pull you out of a crowd right now and arrest you on the basis of human assessment that you match the appearance of a suspect. In that sense nothing has changed.
It is not, in my opinion, accurate to describe LFR surveillance as turning “us all into walking ID cards [and] the streets of Britain into Police line- ups” (Big Brother Watch/ Liberty Investigates). Unless our records are already in Police databases in accordance with existing laws, our facial images will bring only a blank, and will not be retained. It is a gross exaggeration to suggest that this technology is a tool for tyranny, and that the next step is a Big Brother state, an authoritarian dystopia such as China. All power can be misused, but that doesn’t mean we need to be frightened of it and keep the switches off. It just means that, as ever, the public, in conjunction with expert lawyers like me, need to police the Police’s use of the technology and hold them to account when they overstep the bounds, make mistakes and cause harm.
In this sense, LFR cameras can be equated to the now- commonplace ANPR cameras on our roads, which can be used by the Police to track vehicles in near real time or build up a historical map of their past journeys. LFR does not go as far as that, because our faces are not numberplates and their data is not being stored once scanned, unless a match with the ‘watch list’ occurs. As I have said; whilst I think it is absolutely crucial to uphold the traditions of British justice and Policing by Consent, I do not think that the best way to do this is to try to (futilely) live in the past and seek to deny the Police the available tools of the modern era of Artificial Intelligence and pervasive public video surveillance. To do so would be an exercise doomed to failure, and ultimately counter-productive.
Police Forces can make a persuasive case as to why they should be allowed to utilise this technology, particularly LFR. Rather than it being a system designed to allow the State to surveil ordinary citizens, LFR is effectively watching for the faces of “persons of interest” from a pre-determined watch list and therefore ‘looking through’ everybody else as if they weren’t there.
Police justifications for LFR include –
locating and arresting those already wanted for criminal offences
preventing people who may cause harm from entering an area (e.g. people subject to football banning orders)
locating people whom intelligence suggests may be at risk of harm, or pose a risk to others (e.g. missing persons; stalkers; suspected terrorists).
Such uses are naturally likely to garner public support. The Guardian article referred to above quotes Lindsey Chiswick, Director of Intelligence at the Met and the National Police Chief Council Lead on Facial Recognition, quoting surveys indicating that 80% of Londoners were in support of the Police using facial recognition cameras.
This concludes the first part of my blog post: next week I will address the issue of ‘ethnic inequalities’ – are these systems mis-identifying the faces of black people more often than white? – and address what everyone can do if they have been the victim of a wrongful arrest as a result of Facial Recognition.
How you can help me
I hope that you have enjoyed reading this week’s blog post and the many others available on this website. If you have, then I would like to ask you a favour – in a world in which large and non-specialist law firms (generally from a personal injury background) are increasingly throwing huge marketing budgets into online advertising in order to ‘capture’ Actions Against the Police clients – I need your help to ensure that those in need of real expert advice come to the best place for representation. If you value the insights and expertise which I share on this blog, and the results which I have achieved for the people whose stories are recounted here, please post a positive review on Trustpilot to get the word out. Every 5 star review I receive makes a big difference in helping those who need the right advice to come to the right place. Thank you!
When they first consult me, some of my clients are concerned that by pursuing a complaint or claim against the police, they will suffer reprisals.
In response, I advise that as a solicitor who has specialised in this area for more than 30 years, I have come across only one case in which clients suffered direct victimisation from an officer bent on revenge in response to a complaint – and even then it was my clients who had the last, and longest, laugh.
My clients, husband and wife Richard and Michelle Hall lived in St Helens, Merseyside with their children.
On 4 December 2015, Mr Hall was arrested and detained by Merseyside Police officers.
During the course of Mr Hall’s detention, PC Allen and other officers carried out a search of Mr Hall’s home address.
Upon Mr Hall’s release later that day, he viewed his home CCTV and was shocked by what he saw, believing that the search was conducted in a disrespectful and unprofessional way, and that PC Allen had helped himself to a packet of crisps from the Hall’s home, which he was munching as he discharged his criminal justice functions. (Watch the CCTV footage on the Liverpool Echo’s website.)
A few days later, Mr Hall understandably filed a complaint against PC Allen (“the first complaint”).
The complaint was investigated by Merseyside Police’s Professional Standards Department (“PSD”).
During the investigation, PC Allen was placed on restricted duties and was also interviewed.
On 11 February 2016, PSD informed PC Allen that he was no longer being investigated, and that the restriction on his duties had been removed. One of the investigation findings was that whilst PC Allen had been eating crisps during the search, he had not stolen them from the Halls.
The following morning, at around 7:30am, Mr Hall left the house as usual, to take his children on the ‘school run.’
Then, shortly after 8:00am, Mrs Hall, who was now alone in the house, noticed a police vehicle parked outside.
The driver of the police vehicle parked outside of the premises was none other than potato- based snack food fan, PC Allen. He was with a female officer, PC John.
Mrs Hall got dressed and went outside, surprised, alarmed and upset to see PC Allen in the van (whom she recognised from the CCTV footage of the search on the 4 December).
Mrs Hall tried to attract the attention of the officers to establish the reason for their presence. Chillingly, neither officer acknowledged Mrs Hall.
Mrs Hall returned inside and called her husband to inform him of PC Allen’s presence. She felt intimidated and was extremely upset.
PC Allen and PC John remained outside of the premises for approximately 13 minutes, before driving away before Mr Hall got home. The officers seemed to have had no legitimate business in the road.
As a consequence, on 13 February 2016, Mr Hall made a further police complaint, alleging that PC Allen’s conduct on 12 February 2016 amounted to harassment (the “second complaint”).
This was again investigated by Merseyside Police PSD.
On or around 22 February 2016, the investigation report into Mr Hall’s first complaint was sent to him, informing my client that his first complaint had not been upheld and/or that there was no case to answer, except for Mr Hall’s allegation that PC Allen had failed to leave a copy of the search record at the premises, prior to leaving, which was upheld. PC Allen was deemed to “need no more than words of adviceregarding the importance of documenting all items any damage caused and the correct process regarding the completion of the PCE 10 search record”.
On 10 March 2016, PC John provided an account to Merseyside Police PSD, in which she stated that PC Allen had made the decision to park up outside the Halls’ home on 12 February 2016. PC John further stated that she did not personally have any enquiries to conduct in the area that day.
PC Allen himself provided an account to PSD in which he claimed to have gone to the area on 12 February to engage in a “high visibility patrol”. PC Allen further stated that he had parked the police vehicle outside the premises as he had “finished late the night before and thought that an opportune moment to complete [his] notebook”. PC Allen confirmed in that account that he was aware that it was Mr Hall’s home address.
On 21 June 2016, Mr Hall received the investigation report into his second complaint. He was informed that his complaint against PC Allen of oppressive conduct/harassment had been upheld and that PC Allen was deemed to require management action. In particular, it was found that PC Allen and PC John had been tasked to respond to another job whilst they were parked outside the Hall’s home but had failed to do so immediately. The following was also stated in the investigation report:
“…It is…reasonable to believe that the only logical explanation that Constable Allen has parked outside the Hall’s home address is to either cause annoyance, in response to the complaint made against him previously by Mr Hall, or because he himself was annoyed because of the serious allegations which had been made against him and, the more serious ones had not been proven…”
In the circumstances, I advised Mr and Mrs Hall to bring a claim against Merseyside Police for breach of Article 8 of the European Convention on Human Rights (ECHR) – the right to respect for private and family life, or, in other words the sanctity of the home as a ‘safe space.’
This may not have been an ‘invasion’ of an English man’s castle (as that old common law adage puts it), but it amounted in my opinion to a ‘siege’ which deserved to be firmly censured.
Merseyside Police denied liability and the case proceeded to trial in June 2018. You can read more about the legal basis for the Article 8 claim in my original blog post on this case.
When giving evidence at trial, PC Allen maintained that he had a legitimate reason for parking up outside the Hall’s home address; that he was in the vicinity carrying out high visibility patrol. He claimed that he was aware of, and had experience of, people living in the area defrosting/ demisting their cars on driveways by leaving their cars unattended with their engine running, and that such vehicles were “easy pickings” for opportunistic car thieves. As he drove around he ‘remembered’ that he had not completed his pocket notebook from the previous day. In the circumstances, he decided to pull up, “electing a safe place …… to stop”. By sheer coincidence, it was immediately outside of the Hall’s home address!
Having so parked up, and having completed his pocket notebook entry, PC Allen went on, he observed a man delivering papers. As he did so, the man left his engine running and so PC Allen advised him he was committing an offence. PC Allen obtained the man’s personal details and carried out a radio check to ensure he was insured. He was, and so PC Allen gave him some ‘words of advice’ and allowed him to continue. Thereafter, the officers were passed a job over the radio; PC John attempted to access the database via her laptop but couldn’t get a connection, and so the officers returned to the Police Station.
On review of the evidence available, it was established that, at that morning’s briefing, there had been no tasking for a ‘high visibility patrol’. Yet further, enquiries with the Police Intelligence System revealed only one theft of a motor vehicle in the area. There was simply no evidence that such thefts were an issue or ‘high priority’.
In the circumstances, it was clear to me that PC Allen had deliberately parked up outside the Hall’s home address a day after being told that Mr Hall’s first complaint had been resolved to send them a message: “I’m not going to forgive and forget.” It was an act of revenge, and one that caused an innocent family considerable upset.
Her Honour Judge Sykes agreed and in Court ruled as follows:
“In my judgment, if powers of police are used arbitrarily, without legitimate cause, that engages Article 8. The Claimants’ submit that this case is analogous to covert surveillance. I agree that this is an appropriate analogy. A duty of respect is imposed under Article 8, it calls upon the Police not to carry out acts to intimidate or cause anxiety. I am satisfied that Article 8 is engaged. I am also satisfied that the Defendant has failed to show that the interference was in accordance with law and in pursuance of legitimate and proportionate aim”.
Both of my clients received compensation awards, an order for their legal costs to be paid and a declaration by the Court that their Article 8 rights had been violated.
Here’s what Richard Hall kindly said on case conclusion…..
Had a complaint against Merseyside Police and went to see Iain. Iain was very direct and to the point but this guy knows his stuff and we won on the 26th June 2018 with a Breach of Article 8 of my human rights, so no matter how trivial your complaint or issue is with Merseyside police or any other force, always put a call in to Iain first to get the correct advice.
I can offer no absolute guarantee that the individual officer or the Force generally will not seek ‘reprisal’ for a claim or complaint, but I can say that such action is extremely rare, and even more so when the person claiming or complaining is doing so with the benefit of legal representation (remember that Mr Hall had brought his first complaint before instructing me). Most officers who are the subject of a claim or complaint just want to forget about it – not to go out and cause further trouble for themselves. In this respect, PC Allen is a salutary lesson – his petty act of revenge meant that Merseyside Police, not the Halls, were the ultimate losers in this case.
How you can help me
I hope that you have enjoyed reading this week’s blog post and the many others available on this website. If you have, then I would like to ask you a favour – in a world in which large and non-specialist law firms (generally from a personal injury background) are increasingly throwing huge marketing budgets into online advertising in order to ‘capture’ Actions Against the Police clients – I need your help to ensure that those in need of real expert advice come to the best place for representation. If you value the insights and expertise which I share on this blog, and the results which I have achieved for the people whose stories are recounted here, please post a positive review on Trustpilot to get the word out. Every 5 star review I receive makes a big difference in helping those who need the right advice to come to the right place. Thank you!
In the innocent days of the 1990s, when we imagined the apocalypse humanity might face at the hands of that Frankenstein’s monster known as Artificial Intelligence, we thought our end would come at the gun-barrels of gleaming metallic robot Terminators…but it now looks more likely that “AI” will instead end civilisation by drowning us in a blizzard of fake news, fake history – and fake legal cases.
If we are to avoid this fate, salutary lessons can be drawn from the recent public law case of Ayinde, R (On the Application Of) v The London Borough of Haringey [2025] EWHC 1040 (Admin) (03 April 2025) which contains this startling narrative of events at paragraphs 57 – 66 of the judgement-
Moving to the second ground for judicial review, failure to consider relevant evidence, I accept that there was a lot of substance in that ground because, having read the medical evidence, I had taken a preliminary view that the judicial review had quite strong legs to show that the Claimant had a priority need and was seriously at risk, and the Claimant’s medical evidence had been overlooked, ignored or irrationally not taken into account. I do not make that finding, I just set out here that this was my preliminary view. However, I do not need to make that finding and I had not heard any of the evidence by the time the parties actually came to settle the substantive issues and the Defendant had provided accommodation to the Claimant after the order made by the Deputy High Court Judge last October. However, although ground 2 had substance to it the case cited in paragraph 20 did not exist. The text was drafted as follows by Ms Forey:
“Moreover, in R (on the application of Ibrahim) v Waltham Forest LBC [2019] EWHC 1873 (Admin), the court quashed the local authority decision due to its failure to properly consider the applicant’s medical needs, underscoring for necessity the careful evaluation of such evidence in homelessness determinations. The respondent’s failure to consider the appellant’s medical conditions in their entirety, despite being presented with comprehensive medical documentation, renders their decision procedurally improper and irrational”.
The problem with that paragraph was not the submission that was made, which seems to me to be wholly logical, reasonable and fair in law, it was that the case of Ibrahim does not exist, it was a fake. I find this extremely troubling. I do not accept Ms Forey’s explanation for how these fake cases arose. I do not accept that she photocopied a fake case, put it in a box, tabulated it and then put it into her submissions. The only other explanation that has been provided before me, by Mr Mold, was to point the finger at Ms Forey using Artificial Intelligence. I do not know whether that is true, and I cannot make a finding on it because Ms Forey was not sworn and was not cross examined. However, the finding which I can make and do make is that Ms Forey put a completely fake case in her submissions. That much was admitted. It is such a professional shame. The submission was a good one. The medical evidence was strong. The ground was potentially good. Why put a fake case in?
Ground 3, unreasonableness and irrationality. Various submissions were set out there in paragraphs 21 and 22 including based on Wednesbury and then in paragraph 23 a case which is not attacked by the Defendant. However, in paragraph 24, Ms Forey wrote this:
“The appellant’s situation mirrors the facts in R (on the application of H) v Ealing London Borough Council [2021] EWHC 939 (Admin) where the court found the local authority’s failure to provide interim accommodation irrational in light of the appellant’s vulnerability and the potential consequences of homelessness. The respondent’s conduct in this case similarly lacks a rational basis and demonstrates a failure to properly exercise its discretion”.
This was yet another fake case. It does not exist. Therefore, the description of what it is in the case was fake and untrue.
Finally in relation to ground 4, breach of duty to act fairly, Ms Forey herself breached her duty to act fairly and not to mislead the court by paragraphs 27 and 28. In 27 she wrote: “The respondent’s failure to provide a timely response and its refusal to offer interim accommodation have denied the appellant a fair opportunity to secure his rights under the homelessness legislation. This breach is further highlighted in R (on the application of KN) v Barnet LBC [2020] EWHC 1066 (Admin) where the court held that procedural fairness includes timely decision-making and the provision of necessary accommodation during the review process. The respondent’s failure to adhere to these principles constitutes a breach of the duty to act fairly”. That sounds fine. The trouble is, the case does not exist, it was a fake.
Worse still, in paragraph 28, Ms Forey wrote:
“The appellant’s case further aligns with the principles set out in R (on the application of Balogun) v London Borough of Lambeth [2020] EWCA Civ 1442 — where the Court of Appeal emphasise that local authorities must ensure fair treatment of applicants in the homelessness review process. The respondent’s conduct in failing to provide interim accommodation or a timely decision breaches the standard of fairness”.
Ms Forey had moved on from fake High Court cases to fake Court of Appeal cases. I have no difficulty with the submission that the Respondent local authority had to ensure fair treatment of applicants in the homelessness review process, but I do have a substantial difficulty with members of the Bar who put fake cases in statements of facts and grounds.
I now come to the relevant test. Has the behaviour of Ms Forey and the Claimant’s solicitors been improper, unreasonable or negligent? I consider that it has been all three. It is wholly improper to put fake cases in a pleading. It was unreasonable, when it was pointed out, to say that these fake cases were “minor citation errors” or to use the phrase of the solicitors, “Cosmetic errors”. I should say it is the responsibility of the legal team, including the solicitors, to see that the statement of facts and grounds are correct. They should have been shocked when they were told that the citations did not exist. Ms Forey should have reported herself to the Bar Council. I think also that the solicitors should have reported themselves to the Solicitors Regulation Authority. I consider that providing a fake description of five fake cases, including a Court of Appeal case, qualifies quite clearly as professional misconduct.
On the balance of probabilities, I consider that it would have been negligent for this barrister, if she used AI and did not check it, to put that text into her pleading. However, I am not in a position to determine whether she did use AI. I find as a fact that Ms Forey intentionally put these cases into her statement of facts and grounds, not caring whether they existed or not, because she had got them from a source which I do not know but certainly was not photocopying cases, putting them in a box and tabulating them, and certainly not from any law report. I do not accept that it is possible to photocopy a non-existent case and tabulate it. Improper and unreasonable conduct are finding about which I am sure. In relation to negligence I am unsure but I consider that it would fall into that category if Ms Forey obtained the text from AI and failed to check it.
…These were not cosmetic errors, they were substantive fakes and no proper explanation has been given for putting them into a pleading…
Handle AI With Care
Do Androids Dream of Electric Sheep?, asked science fiction author emeritus Phillip K Dick, in his novel of that title, which went on to become the ‘80s movie classic “Blade Runner.” The answer is apparently, yes – and then they make up a High Court case about them.
The consequences that the lawyers involved in the Ayinde case, who were responsible for putting forwards what seem to have been fake cases dreamt up by an AI ‘Large Language Model’ (such as Chat GPT) will not be light, and nor should they be. It is a warning to all who seek to research the law online that they need to be careful about trusting the information put in front of them, particularly if it is an AI generated summary or article. Certainly, at this stage of their development, these programmes should not have the ‘Intelligence’, but the ‘Artificial’ half of their name repeatedly stressed. A ‘shortcut’ to knowledge can easily prove to be a trapdoor.
Look beyond the “AI Overview” box and seek out a flesh-and-blood lawyer who does his own research, who knows the case law inside out, and whose track- record of success is vouched for by hundreds of word-of-mouth recommendations and organic reviews, rather than silicon- manipulation – in other words, an expert, like me.
How you can help me
I hope that you have enjoyed reading this week’s blog post and the many others available on this website. If you have, then I would like to ask you a favour – in a world in which large and non-specialist law firms (generally from a personal injury background) are increasingly throwing huge marketing budgets into online advertising in order to ‘capture’ Actions Against the Police clients – I need your help to ensure that those in need of real expert advice come to the best place for representation. If you value the insights and expertise which I share on this blog, and the results which I have achieved for the people whose stories are recounted here, please post a positive review on Trustpilot to get the word out. Every 5 star review I receive makes a big difference in helping those who need the right advice to come to the right place. Thank you!
This week’s blog post comes from my colleague and fellow actions against the police solicitor, John Hagan.
There is a reason why the phrase “An Englishman’s home is his castle” is such a resonant one; it sums up a principle which underpins the liberal and democratic traditions of British society and we infringe upon it at our peril.
I therefore feel compelled to add my voice to the chorus of those who have expressed concern about section 93 of the Crime and Policing Bill, which is currently at committee stage at the House of Commons, and which provides as follows –
93 Electronically tracked stolen goods: search without warrant
(1) In the Theft Act 1968, in the heading of section 26 after “goods” insert “with warrant”.
(2) In the Theft Act 1968, after section 26 insert—
“26A Electronically tracked stolen goods: search without warrant
(1) A constable whose rank is at least that of inspector (a “senior officer”) may authorise a constable to—
(a) enter specified premises, and
(b) search the specified premises for specified items.
(2) A senior officer may give an authorisation under subsection (1) only if satisfied that—
(a) there are reasonable grounds to believe that—
(i) the specified items are stolen goods,
(ii) the specified items are on the specified premises, and
(iii) it is not reasonably practicable to obtain a warrant for the entry and search (under section 26 or another enactment) without frustrating or seriously prejudicing its purpose, and
(b) there is electronic tracking data indicating that the specified items (or any of them) are, or have at some time since they are believed to have been stolen been, on the specified premises.
(3) An authorisation may be given orally or in writing.
This clause, if enacted as currently drafted into law, would grant the Police yet further powers to intrude into the ‘inner sanctum’ of our private lives, without the prior oversight of the Court i.e. a new power of entry into a person’s home, without the need for Court approval in the form of a warrant. Also note the vague definition of “electronic tracking data” – any “information as to the location, determined by electronic means, of an item.”
Rob Warner has produced an excellent recent video surveying this problem which I would recommend everyone to watch, on his Crimebodge YouTube channel below:
And for those of you who haven’t read his equally excellent “Copper Stopper” handbook, read about it here.
Not every change is for the best, and sometimes politically expedient amendments to the law risk fixing a system that isn’t broken – or that already has the necessary tools to deal with the problem, provided they are used properly – and risk fuelling authoritarian ‘mission creep’ amongst the agents of the state, infringing fundamental personal liberties and enabling new forms of abuse and exploitation of Policing power.
The best laws are not those which are apparently designed for ‘headline grabbing’ – especially when the problem they purport to address could be fixed without changing the law, and instead by better management and application of existing resources. Section 93 of the new Bill appears to have been drafted to address news reports about Police being unwilling to act upon tracking data showing the location of people’s stolen mobile phones or other easily moveable computing devices; but we should be careful about throwing away our personal freedoms just for the sake of our personal phones – and, in reality, the power which already exists for the Police to apply for a Court warrant to search premises is what should, more efficiently and pro-actively, be utilised in appropriate cases of reported theft. That way, the Court oversight – the guardrails around State intrusion into our family homes which our forebears erected, would be maintained – rather than being further dismantled. Bear in mind that the Police already have wide powers under the Police & Criminal Evidence Act 1984 (PACE) to force entry into premises without Court permission –
Under Section 17 of PACE – to arrest wanted persons for serious offences, or if there is an immediate threat to the life or threat of serious injury of an occupant of the premises (“saving life or limb”).
Under Section 18 of PACE – to search premises at which an already arrested person resides.
I personally do not think that we should allow those powers – those gaps in the guardrails – to get any wider.
When I look at the proposed legislation I think of all the ways it could be abused by reckless, authoritarian or negligent Police Officers and the deep harm such abuse of power could cause, not only to the personal lives of those individuals whose homes are violated by a Police intrusion under this law, but also its wider implications in further diluting the principal of the sanctity of our ‘castles’ and injuring society as a whole; wearing down people’s expectations of privacy beneath the tramping feet of Police trespassers as the Police gain evermore ‘rights of way’ over the threshold of our homes. The more wedged the Police Officer’s boot becomes in the door, the more society may, in the long term, come to forget that we ever had a right to close it in their face.
John Hagan, solicitor and specialist in civil actions against the police.
Contemplating these themes, reflect on the following –
The rapidity with which the ill- thought-out emergency legislation brought in to address the Coronavirus pandemic was exploited by Police Officers, some of whom seemed gleeful to have their inner authoritarian enabled, as if they were living in the ‘papers please’ curfew- state of their dreams
The existing exploitation of Police powers of entry into the home – particularly under Section 17 of PACE – the supposed power of entry to “save life or limb” which is, very often, invoked by Officers when in fact nobody’s life or limb is in danger, but the Officer just has a twitchy nose
Big Brother does not have all the answers, and I caution that we should be very wary about giving his foot-soldiers another excuse to come into our homes, especially one which is going to be based on notoriously imprecise location data, in a country whose cities have a very high population density, often sharing terraced streets or apartment blocks.
Not all change is for the best and the strongest wisdom often has age-old roots. Let us hope that modern day legislators take a proper look before they leap, and come to the same realisation which led to the abolition of the “Smoke Money” Act during the reign of King William and Queen Mary (1688 – 94), which had previously imposed a tax payable to the Monarch on the basis of how many hearths, or fire-places, a house possessed. The preamble to the Act repealing this imposition decried it as contrary to the institutions of English justice, in the following strident terms, which I am tempted to adopt for our present purpose –
“Not only a great oppression to the poorer sort, but a badge of slavery upon the whole people, exposing every man’s house to be entered into and searched at pleasure by persons unknown to him.”
How you can help me
I hope that you have enjoyed reading this week’s blog post and the many others available on this website. If you have, then I would like to ask you a favour – in a world in which large and non-specialist law firms (generally from a personal injury background) are increasingly throwing huge marketing budgets into online advertising in order to ‘capture’ Actions Against the Police clients – I need your help to ensure that those in need of real expert advice come to the best place for representation. If you value the insights and expertise which I share on this blog, and the results which I have achieved for the people whose stories are recounted here, please post a positive review on Trustpilot to get the word out. Every 5 star review I receive makes a big difference in helping those who need the right advice to come to the right place. Thank you!
This week’s blog post is by my colleague, and fellow actions against the police solicitor, Aidan Walley.
Aidan Walley, solicitor and specialist in civil actions against the police, explains how he helped a client win her claim against Greater Manchester Police.
Last week, the European Court of Human Rights gave its judgment in the case of X v Cyprus, a deeply disturbing case in which Ms X, a British holidaymaker, made a report of rape to the Cypriot police. The police did not believe Ms X and arrested and charged her with public mischief. She was convicted but, thankfully, acquitted on appeal.
Unfortunately, such cases occur not only abroad but also in the UK. The European Court’s judgment above closely mirrors my own concerns regarding the unnecessary arrests of victims of sexual assault, and my hope that such violations of their rights end.
In 2019, Natalia was a victim of rape, which was reported to Greater Manchester Police (GMP). However, despite the seriousness of the allegation, Natalia’s attacker was not arrested. Instead, officers invited him to attend a voluntary interview. The subsequent investigation by GMP was significantly botched and resulted in no further action being taken against Natalia’s attacker. After Natalia complained to GMP’s Professional Standards Branch, the Force and Andrew Burnham (in his role as the Greater Manchester Police and Crime Commissioner) eventually apologised to her.
As a result of her attack, Natalia was diagnosed with Post-Traumatic Stress Disorder, which was greatly exacerbated by the handling of the investigation and the subsequent complaint process. What happened next only caused Natalia further anguish.
On the morning of 15 September 2023, two male GMP officers, including PC Dalzell, attended Natalia’s home.
Understandably, Natalia was reluctant to speak to two unknown male officers given her previous trauma and on-going complaint against GMP. She partly opened the door to talk to them. The officers stated repeatedly that they needed to speak with Natalia inside the house about an ongoing case involving Twitter posts. They refused to discuss further details while standing on the street, and insisted that Natalia let them in, but without making their real intentions clear. When her partner joined her at the front door, Natalia fully opened the door, and the officers entered the premises.
Once inside Natalia’s home, the officers revealed their true intentions and PC Dalzell arrested Natalia for sending “malicious communications”, relating to an accusation that a malicious post had been made on Twitter.
Natalia was distressed and objected to her arrest, stating that she believed it was in retaliation for her complaints. Natalia and her partner then explained to the officers that she had a hospital appointment later the same day and produced a hospital letter. Eventually, the officers backed down and agreed for Natalia to attend a voluntary interview a few days later. The officers then left.
The following morning, Natalia emailed PC Dalzell to ask if the voluntary interview could be postponed. PC Dalzell responded, “for the time being we’re going to cancel the voluntary attendance interview so don’t worry about attending”.
Natalia heard nothing for several days, she began to fear that officers would come and suddenly arrest her again. On 18 September 2023 she emailed again for an update before another officer called and told her that the case was closed because the case did not meet the public interest criteria.
At no point was Natalia made aware of who her accuser was, or what the alleged tweets were. In November 2023 Natalia received a partial response to a Subject Access Request to GMP which included a redacted copy of the relevant crime report. Through this, Natalia found that the accusations against her were linked to her report of rape and complaints to GMP and that the alleged offence had taken place on 4 January 2023 but had not been reported until 27 April 2023. However, no attempt had been made to contact Natalia nor arrange a voluntary interview prior to her arrest on 15 September 2023, despite GMP long being in possession of Natalia’s contact details.
Natalia suffered distress and upset because of the incident, which served only to further undermine her confidence and trust in the police.
Following initial instruction, I was satisfied that Natalia’s arrest was wholly unnecessary. Further, the entry into Natalia’s home, her safe space after her attack, was a disproportionate violation of her rights under Article 8 of the European Convention on Human Rights (right to private and family life).
As my colleague Iain Gould hasblogged aboutmany times before, under section 24 of the Police and Criminal Evidence Act 1984 (PACE) a lawful arrest requires two elements: an officer must reasonably believe that the suspect was involved in the commission of a criminal offence, and it must be necessary to arrest for one of the reasons set out in section 24(5). In Natalia’s case, it appeared that the arresting officer would struggle to satisfy either criterion, but particularly that of necessity.
Paragraph 2F of Code G of PACE provides that the arresting officer must consider whether the suspect’s voluntary attendance is a practicable alternative to arrest, and it was clear that PC Dalzell failed to give any considerations to an alternative to arrest as:
by reason of her previous reports and complaints, GMP already had Natalia’s contact details;
prior to arrest there was no attempt to contact Natalia and interview her voluntarily;
Natalia was suspected of a minor, non-violent, offence that took place over the internet several months prior to her arrest;
Natalia was of good character with no previous convictions or arrests.
However, in clear defiance of the Pre-Action Protocols for civil claims, GMP’s solicitor actively failed to respond to a letter of claim. This left Natalia with no alternative but to authorise me to issue Court proceedings.
In response, GMP’s solicitor filed a robust Defence in which it was asserted that PC Dalzell had a genuine and reasonable belief that Natalia was guilty of an offence and that it was necessary to arrest her.
Surprisingly, it was claimed that the arresting officers were not aware that Natalia was a vulnerable victim of rape, notwithstanding the assertion that the officers had fully reviewed the victim’s statement and the crime log prior to arresting Natalia.
Despite my repeated challenges to their position, GMP refused to openly accept that Natalia had been unnecessarily arrested and refused to apologise to her, all the while making “without prejudice” offers to settle her claim. (“Without prejudice” offers are confidential offers made between the parties, which a Defendant can make whilst still maintaining an official denial of liability and which the Court cannot be informed about until the case has concluded.)
Despite the stress of proceedings, Natalia persevered, and ultimately accepted, an appropriate offer of compensation from GMP.
Following the conclusion of her claim, Natalia said:
“As a survivor of rape, I cannot begin to explain the excruciating journey I have faced since reporting it to the police. Not only did I endure a soul-crushing, inefficient police investigation and contemptuous treatment throughout the process, but I also became the target of an unlawful arrest, further highlighting the serious gaps in competence and attention to detail within the Greater Manchester Police. From reporting the rape to suing the police, my actions have all had a singular purpose: to ensure that real lessons are learned and that no further vulnerable victims of such heinous crimes are revictimised by police forces.”
Whilst Natalia’s case is not an isolated incident, I hope that the lessons learnt from this and other cases, will prevent other victims of rape being criminalised in the future.
*As Natalia is a victim of sexual assault, under Section 1(1) of the Sexual Offences (Amendment) Act 1992 she has been granted life-long anonymity and her name has been changed.
How you can help me
I hope that you have enjoyed reading this week’s blog post and the many others available on this website. If you have, then I would like to ask you a favour – in a world in which large and non-specialist law firms (generally from a personal injury background) are increasingly throwing huge marketing budgets into online advertising in order to ‘capture’ Actions Against the Police clients – I need your help to ensure that those in need of real expert advice come to the best place for representation. If you value the insights and expertise which I share on this blog, and the results which I have achieved for the people whose stories are recounted here, please post a positive review on Trustpilot to get the word out. Every 5 star review I receive makes a big difference in helping those who need the right advice to come to the right place. Thank you!
This is a guest post by my colleague and fellow actions against the police solicitor, John Hagan.
My client Gemma Barnes is an animal rights activist and campaigner who often exercises those rights of peaceful protest which should be acknowledged as a fundamental hallmark of a democratic society, no matter where you stand on the political spectrum – “I may disagree with what you say, but I support your right to say it.”
A necessary corollary of this, is that the Police must, whilst maintaining law and order, not fall into a mindset of ‘us versus them’ – as if the Blue team are a rival army lining up against the Red team. Sadly, this is all too often what happens, and Police prejudice and personal hostility towards protestors like Gemma open up a trapdoor of civil rights abuses.
On the morning of 19 February 2022, Gemma attended an animal rights protest at Neat Market in Norwich, the site of a cattle market.
Prior to the events in question, she had been subject to a bail condition not to attend Neat Market Road (which had been the scene of previous protests). However, this condition had been withdrawn by Norwich Magistrates Court on 8 February 2022.
PC Chittock of Norfolk Constabulary recognised Gemma and alleged that she was in breach of her bail condition. Gemma, and some of her companions, explained that the bail condition had been withdrawn, but their protests fell on deaf ears.
At approximately 9:29am, PC Bhogal arrested Gemma for a purported breach of the bail conditions. In response, she clearly and repeatedly explained to PC Bhogal and other officers that the bail condition had been withdrawn. The Officers nevertheless handcuffed her and marched her to a nearby car park, where Police vehicles were located.
In protest at her unlawful arrest, upon reaching the car park, Gemma sat/ lay on the ground thereby offering ‘passive resistance’ to the officers. She did not actively lift a finger against them, but equally she was not going to facilitate what she saw as an unlawful ‘kidnapping’ into custody.
Gemma continued to verbally protest her arrest, and with the help of other protesters, at approximately 9.38am, showed Police Sergeant Rimmer, PC Bhogal, and other officers present, an email dated 8 February 2022 from her criminal defence solicitors which clearly stated that the bail condition had been lifted. Gemma begged the officers to call her Solicitors and/or the Court to confirm the information that she had provided to them, but they refused to do so.
The officers then began forcibly pulling Gemma up by her arms and legs, causing her pain, and attempted to place her into the rear of a police van.
PS Rimmer then ordered that Gemma be searched before being placed into the van. She was accordingly placed back down onto the ground and searched by PC Clark.
The officers then applied ‘leg restraints’ to Gemma (bear in mind, she was already handcuffed, completely outnumbered by the officers and not fighting them) before they lifted and threw her into the rear cage section of the police van. As they did so, PC Green, who was positioned inside the van, grabbed and pulled Gemma’s legs further into the cage. As Gemma was being violently manhandled in the manner described, with none of her limbs under her own control, her handcuffed hands made an accidental, glancing contact with PC Clark’s head (as that officer was bending down over Gemma, at the same time Gemma was being ‘posted’ into the van).
At approximately 9.56am PC Bhogal then further arrested Gemma for allegedly assaulting an emergency worker I.e on the basis of her hands coming into momentary contact with PC Clark. As this was occurring, other protesters tried to film Gemma’s arrest but were repeatedly pushed back by the officers, with far more force than the accidental contact Gemma’s helpless hands had made with PC Clark…
Gemma was then locked in the rear cage section of the Police van.
Click on the “play” arrow below to watch mobile phone footage of the incident, showing Gemma being manhandled into the back of the van.
At approximately 9.57am, unbeknownst to Gemma at the time, but subsequently revealed by body camera footage, PC Chittock, who was sitting in the driver’s seat of the Police van, called to PS Rimmer and informed him – “Serg, Serg, she needs to be de-arrested, it’s Binnsy….”
PC Chittock had just been informed by Acting Inspector Binns, by way of a radio call, that Gemma had been telling the truth about the withdrawn bail condition all along.
When PC Bhogal then climbed into the van PC Chittock informed him – “Mate, the bail’s been lifted apparently, I’ve just had – but we’ll go with it mate, you know.”
In response, and totally uncontrite, PC Bhogal replied – “We’ll go with it, I just acted on the information I had. Right, let’s go mate.”
And so, the two Officers drove Gemma away into custody.
Also unbeknownst to Gemma at the time, at 9.59am whilst still at Neat Market, PS Rimmer received a telephone call from Acting Inspector Binns who informed him that the bail conditions had indeed been dropped, and that “their presence was an admin error.” From the available body camera recording, PS Rimmer’s side of the said conversation was as follows-
“Yeah, when I saw the email I saw something like no conditions but obviously it was still showing on the PNC so I was under the impression it was just no additional ones. Right, fair enough, well she’s just assaulted one of the officers so we’ll run with that instead. Yes, yes, obviously we’ve been under the belief that those bail conditions are still in place. Yes, absolutely, I’ll get the Breckland officer who was assaulted to write a statement when we get back to Breckland and we’ll all put it together, it’s captured on body worn so it’s all good. No, not your fault boss…it’s all good.”
Notwithstanding the clear confirmation which Inspector Binns had provided as to the withdrawn bail condition, to multiple officers, no officer de-arrested my client in respect of either offence, or even ‘let on’ to her that they now knew the truth – surely the minimum courtesy that she deserved.
Instead, the officers all seemed rather pleased with the fact that they now had an additional ‘reason’ to keep Gemma in captivity i.e the minor contact that had occurred between Gemma’s handcuffed hands and PC Clark’s head whilst the officers were lifting and shoving her into the van, in the process of what they now knew to be a wrongful arrest and in circumstances where Gemma obviously did not have full control of either her legs or arms.
On arrival at Wymondham Police Investigation Centre (PIC), shortly after 10:14am, Gemma again and repeatedly protested that the bail condition had been lifted and referenced the email from her solicitor in that regard. In response, despite now knowing that she was telling the truth, PC Bhogal replied – “You will have your day in Court, that email could be from anyone.”
PC Bhogal and PC Chittock were then present throughout my client’s ‘booking in’ process, but at no point did either officer inform the Custody Sergeant that they knew that Gemma’s bail condition had in fact been withdrawn.
PC Bhogal informed the Custody Sergeant that Gemma had first been arrested for breach of bail. In describing this offence, the officer continued to withhold from the Custody Sergeant the crucial information as to the withdrawal of the bail condition and maintained his silence on this issue, even when the Sergeant directly asked Gemma if he could see a copy of the email from her solicitor regarding the bail condition, so as to investigate her ‘alibi.’
PC Bhogal then informed the Custody Sergeant that Gemma had been further arrested for “assault upon an emergency worker”. Whilst describing this offence he stated that Gemma had “elbowed” PC Clark, which was untrue.
John Hagan, actions against the police solicitor.
At approximately 10.25am, the Custody Sergeant, still in the dark as to the true state of affairs known to not only PCs Bhogal and Chittock but also PS Rimmer, authorised my client’s detention in relation to the alleged breach of bail and in relation to the alleged assault upon an emergency worker, the circumstances of which were recorded as “the DP (Detained Person) elbowed PC in the head.”
At 10.28am, Gemma, maintaining that the bail condition had been lifted, cogently questioned the Sergeant why it was necessary for her to be detained for these low-level assault allegations to be investigated (the circumstances of which had all been caught on body worn camera in any event). My colleague Iain Gould has blogged before on many occasions about the importance of the necessity criteria and why an arrest is not lawful simply because of suspicion of an offence – the person’s detention must be necessary in itself for a specific purpose, usually to facilitate the “effective investigation” of the offence.
In response, the Sergeant stated – “We need to establish whether or not there is a breach of Court bail…our responsibility is to put you in front of the Court…”
Once again, PC Bhogal and PC Chittock, who were listening to this interaction, said nothing about their knowledge of the withdrawal of the bail condition.
Gemma was accordingly searched, processed, and placed into a cell in the PIC.
Finally, at 11:22am, the Custody Sergeant recorded in the custody record that he had received – “confirmation from the DP’s solicitor that the bail conditions were lifted but it appears that the court have not updated PNC [Police National Computer]. I have spoken to the DP and informed her that she is now only here for the matter of assaulting an Emergency worker to be investigated.”
Remarkably, this confirmation had not come from any of the Sergeant’s colleagues at varying levels of seniority, who had all known the truth for hours.
At around 11:30am, Gemma was assessed by a Health Care Professional in the PIC. On examination, it was found that she had “bruises and red marks around RT wrist, redness around Left wrist, Says has injury to shoulder. No marks/bruise seen. Requesting Valium, as the Police have caused her to have a mental health episode.” She was prescribed painkillers.
Only at 7:30pm that evening was Gemma interviewed by PC Butcher, in relation to the ‘assault’, and she was not finally released from custody until around 9:10pm, almost 12 hours after her unlawful detention had begun.
Unsurprisingly, a few weeks later, Gemma was informed by the Police that they would not be taking any action in relation to the alleged assault of the emergency worker.
I personally think it was a travesty that she was arrested and detained for that assault charge in the first place, and I consider that arrest to be one that was born plain and simple out of an institutionally biased ‘Police v Protestors’ mentality on the part of the officers, who clearly saw Gemma as a ‘problem’ who needed to be taught a lesson, and were quite happy to seize upon a second excuse to detain her, after the first had vanished into thin air.
Gemma subsequently lodged a complaint which was investigated by Norfolk Constabulary’s Professional Standards Department (PSD). By means of a report dated 1 September 2022, PSD rejected Gemma’s complaint on the grounds that in all respects the “level of service” provided to her was acceptable.
This ‘par for the course’ complaint response/ rejection left Gemma only with the option of suing the responsible parties to obtain redress for her wrongful arrest.
In considering whom to sue, I had to take account of the suggestion that the Magistrates Court might have failed to properly notify the Police of the change in Gemma’s bail conditions, leading to erroneous information appearing on Police computer systems (see the comment that was made in the Custody Record at 11.22am, as highlighted above – effectively, the Police were washing their hands of moral or legal responsibility for that ‘glitch in the matrix’).
It was therefore necessary to pursue claims against both the Chief Constable of Norfolk AND the Ministry of Justice (the Government department who are responsible for the Court Service).
One of the lessons which long experience in suing both the Police and the (many armed!) Ministry of Justice, is that both organisations will be as cryptic as possible about the operation of their databases and how communications are sent between Police, Courts, Border control etc. Often there is no doubt that errors of commission or omission have corrupted a person’s PNC profile, but the problem is finding out whose fingerprints are on the error, in situations in which the private communication channels between law-enforcement agencies are guarded by a deliberate or negligent lack of disclosure and obfuscation.
Here, the MOJ were claiming they had discharged their duty by notifying the Police of Gemma’s change in bail status, albeit a few days later than would have been ideal – whilst the Police were seeking refuge behind this delay and their claim that Gemma had in any event been validly arrested for assaulting PC Clark during the course of the arrest, which the officers honestly believed they were entitled to make. On the face of it, therefore, both Defendants were advancing vigorous defences, despite the fact that everyone agreed that Gemma was entirely innocent of any breach of bail that day.
I am pleased to say, however, that I pride myself on leaving no stone unturned in any aspect of my client’s cases – and especially when it comes to Police disclosure of documents and information, my watchwords are : What else have you got, that you are withholding from us?
In Part 2 of this blog, next week, I will provide the intriguing answer to that question…
I have written blog posts on many prior occasions about the lawless violence of private security ‘guards’ who behave like thugs- for- hire at festivals, in shops and at private entertainment venues.
The most recent such case that I have settled, against Butlins, is particularly shocking because its victims were a mother and her 7-year-old son, who is severely autistic.
In February 2023 my client Maria and her young son were holidaying at Butlins Skegness resort. They had been walking through a theatre known as the “Skyline Pavilion” and had stopped to watch a dress rehearsal of a show which was taking place on the main stage. Our client’s son started dancing to the music and Maria got out her mobile phone to film him having fun. Although it was late, they were certainly not the only guests around – several other members of the public were watching the performers, including some sitting down at tables.
Maria was then approached by a male security guard who told her that she had to leave. When Maria protested about this, she was swarmed by other security staff, including a female security guard who took hold of Maria’s left arm and forced it up behind her back and began to forcibly march her from the pavilion. When Maria became distressed that she was being dragged away from her son in this manner, the female guard then took hold of Maria’s head and knocked her legs out from under her, in what can only be described as a ‘martial- arts’ manoeuvre, causing Maria to fall forcefully onto the ground. The female guard then proceeded to hold my client in a headlock on the ground, with Maria screaming in pain and distress. Maria was then pulled to her feet and pushed and held against a railing, before being forcibly escorted from the pavilion to a security hut.
This violence was completely unlawful and unnecessary. On no analysis could it be said that Maria was committing a breach of the peace (an actual or imminent act/ threat of violence to person or property) and nor is remaining in a Butlins theatre after being asked to leave an indictable offence – the only type of criminal offence which persons other than constables, including private security staff, can ‘arrest’ other citizens for, in accordance with Section 24A of the Police and Criminal Evidence Act 1984 (PACE).
My client could not, in fact, have been lawfully arrested for what she was doing by actual police officers; sadly, that reflection is rarely one which gives the soldiers of private security pause for thought.
What was most harrowing for my client was that these terrible scenes were witnessed by her son – who must have thought that a nightmare was unfolding in front of his eyes, with strange people attacking his mother, and who fled in terror from the scene, greatly adding to Maria’s own distress as she was unable to go after him, but was dragged the other way, the prisoner of the security squad who forced her to accompany them to the ‘hut’ that appeared to be their office. At the hut Maria was then ‘released’, emotionally distraught at having been brutalised in this way and separated from her son. Thankfully, she was reunited with him a few minutes later when he was brought to the hut, equally upset, by another member of staff.
As a result of this incident, Maria sustained injuries to her wrist, knee, ankle and face for which she required hospital treatment as well as considerable psychological distress given the embarrassment and humiliation of the incident (which had been witnessed by other members of the public who had been in the Skyline Pavilion at the time) but worst of all the torment of that separation she had suffered from her son and her thought of what witnessing this event had done to him.
Calling this incident a ‘holiday from hell’ is no exaggeration.
Whilst it might have been hoped that Butlins would have been ashamed and contrite when I presented a letter of claim to them on behalf of Maria, their response was anything but. Adopting an aggressive and unrepentant stance, their lawyers tried to prevent the release of the body worn video footage from the cameras which were being worn by their security staff at the time and argued that the security guards use of force upon Maria was necessary because she was “trespassing”. Do not forget that throughout this incident, Maria and her son were paying guests at the Butlins establishment – one which the security staff through their heinous acts turned into something more akin to a prison camp than a holiday camp.
I am, however, pleased to confirm that notwithstanding Butlins’ ostensible denial of liability, I have recently been able to bring Maria’s claim to a successful conclusion for damages in the sum of £20,000 plus her legal costs.
Given the callous attitude displayed by Butlins’ staff at the time of the incident, and its insurers/ lawyers after the event, I am very happy to be assisting clients such as Maria in bringing both barrels of the civil law against the armies of private security – hitting them hard in the pocket being the only apparent way to bring about accountability and, perhaps, a future change in their behaviour.
In early 2023, an Officer of Nottinghamshire Police contacted my client Roisin in relation to a minor road traffic accident in which she had been involved. Arrangements were made for Roisin to attend a local Police Station, to be interviewed under caution, which she duly did.
At the conclusion of the interview, Roisin was told that she might be summonsed in due course to attend Court.
My client heard nothing further about this matter, and was thus utterly shocked when, almost seven months later the ‘Boys in Blue’ turned up at her home to arrest her for failing to attend Nottingham Magistrates Court.
Roisin honestly explained that she was unaware of any Court summons or requirement for her to attend Court. The Officers were unfazed by this and replied that they had no option but to arrest her.
Roisin was then taken into Police Custody where she was searched and processed and detained in the cell block overnight. The whole experience had been made more terrible for Roisin by the fact that the arrest took place in front of her youngest child, and she was reduced to crying for most of the hours that she spent in the grim and unpleasant Police cell.
The following day she was transported to Court in handcuffs feeling as bewildered, humiliated, and degraded as any law-abiding citizen thrown into such a situation would be.
Thankfully, at least, it did not take long after the Court Hearing commenced for my client’s innocence in this matter to be vindicated; it was quickly established that the Court summons had been sent to my client’s old home address, where she had not lived for some five years.
It is frankly appalling how many people like Roisin suffer wrongful arrest by reason of ‘incorrect address’ errors every year – and indeed how much legitimate Police and Court time is wasted in the process as well. I have blogged about precisely this form of wrongful arrest numerous times over the last 18 months, showing the prevalence of the problem. It is the ‘collateral damage’ caused to people’s lives by bureaucratic laziness/ sloppiness within the criminal justice system, and absolutely inexcusable.
On the basis that it was Nottinghamshire Police Officers and/or staff who were responsible for issuing the original Court summons to the incorrect address (when my client had done all that she reasonably could to ensure they had her correct address, including cooperating with the initial contact earlier that year and attending a Police interview), I advanced a claim on her behalf against the Chief Constable of Nottinghamshire for:
Assault and Battery (the latter being the application of any and all force to Roisin during her arrest and imprisonment – but especially including the entirely unnecessary use of handcuffs upon her).
I am pleased to confirm that in December 2023, following receipt of a detailed letter of claim which I had sent on behalf of Roisin, East Midlands Police Legal Services, acting on behalf of the Chief Constable of Nottinghamshire, accepted that the Postal Requisition had been sent to my client’s previous address as a result of a Police “administrative error” and that liability for all of the causes of action outlined in my letter of claim was admitted.
Roisin was detained in total for over 26 hours. Her compensation would, however, be measured not only by reference to the precise amount of time for which she was deprived of her liberty but also the sadly much longer lasting psychological impact of a wrongful arrest, and I therefore arranged for Roisin to be examined by a Clinical Psychologist.
When you leave a Police cell behind, it does not necessarily leave you behind. After her arrest, Roisin’s sleep was frequently disturbed, by thoughts that noises outside her house were someone coming to ‘get’ her and by disturbing feelings of being trapped in the cell and separated from her young children (aged only two and four at the time). This got so bad that she was eventually prescribed sleeping tablets. She suffered symptoms of low mood and of anxiety – even something as simple as an unexpected knock on the door could trigger a panic attack and cause her heart to race. She also became very nervous and on edge at any sight of Police officers in the local area. She was signed off work for some time as a result of these symptoms.
The medical expert whom I instructed diagnosed Roisin as suffering from a Specific Phobia, as well as anxiety and depression as a result of this incident.
I am pleased to confirm that in April of this year I was able to conclude Roisin’s claim for damages in the sum of £20,000, plus her legal costs, on the back of that report and with a threat of Court proceedings against the Police. The kind of threat which my Police opponents know I do not bluff about!
If the Police arrest you after using the wrong address, you may be entitled to compensation and I can help you to maximise your award – getting you every penny you are entitled to for such a shocking invasion of your privacy and violation of your liberty; and thereby hopefully helping the Police to learn from their mistakes.
For all that they wear uniforms and often behave with the arrogance and aggression of a private Police Force, the fact is that security staff patrolling retail premises, on the hunt for shoplifters, only have the same “Citizen’s Arrest” powers that everybody else does, as defined by Section 24A of the Police & Criminal Evidence Act 1984 (PACE):
24A Arrest without warrant: other persons
(1)A person other than a constable may arrest without a warrant—
(a)anyone who is in the act of committing an indictable offence;
(b)anyone whom he has reasonable grounds for suspecting to be committing an indictable offence.
(2)Where an indictable offence has been committed, a person other than a constable may arrest without a warrant—
(a)anyone who is guilty of the offence;
(b)anyone whom he has reasonable grounds for suspecting to be guilty of it.
(3)But the power of summary arrest conferred by subsection (1) or (2) is exercisable only if—
(a)the person making the arrest has reasonable grounds for believing that for any of the reasons mentioned in subsection (4) it is necessary to arrest the person in question; and
(b)it appears to the person making the arrest that it is not reasonably practicable for a constable to make it instead.
(4)The reasons are to prevent the person in question—
(a)causing physical injury to himself or any other person;
(b)suffering physical injury;
(c)causing loss of or damage to property; or
(d)making off before a constable can assume responsibility for him.
And those powers, as with Police powers of summary arrest (ie arrests made without the rare authority of a Court warrant), are contingent on reasonable suspicion. Furthermore, they do not come with the additional power to search a person or their property which Section 32 of PACE grants to actual Police Officers.
Sadly, these powers are commonly misunderstood and misused by retail security staff, leading their victims to have to turn to specialist lawyers such as myself for recompense and restitution. For whilst most of my time is spent holding misbehaving ‘official lawmen’ to account, I am also more than happy to help roundup and rectify the abuses of quasi-Police cowboys.
In September 2021 my client Michael, a medical professional and man of exemplary character, attended his local Sainsbury’s store. He had come to purchase a particular type of watermelon for his daughter’s birthday party. As he walked around the store Michael spoke on his mobile phone to his wife about what was required; after finding that no such melons were available Michael went to exit the store, having only been in there for a few minutes. This is something I’m sure we’ve all done on those occasions when we are on a ‘mission’ for a very specific and urgently required item, rather than a general ‘shop’.
As Michael approached the exit of the store, an alarm went off. As he had no items in his possession and the alarm had gone off before when he passed through the detectors, a common occurrence with these temperamental machines, Michael thought nothing of it and continued to exit the store.
At this point, an unknown man dressed in plain clothes, suddenly rushed to block Michael’s path, and immediately assaulted my client by grabbing his right arm and twisting it behind his back. Michael was utterly shocked. The man then forced him back into the store.
As Michael was marched ‘prisoner-style’ down the aisles, the man not only kept his arm twisted up behind his back, but actually threatened to break it. Due to the position that Michael’s arm was being held in, it started to turn numb.
The man now accused the Michael of being part of a ‘gang’, along with another person who had been stopped, whom Michael knew nothing about.
The man who had ‘apprehended’ Michael alleged that he had been communicating with other gang members on his mobile phone. Incredulous, Michael denied this and offered to show his phone to the man to prove that he had been simply talking to his wife; however, this was ignored.
As Michael was force-marched through the store, a female member of staff wearing a Sainsbury’s uniform and a name tag swore at him, evidently having decided he was a shoplifter. Just as private security operations generally neglect the proper rules of arrest, so they often disregard the time-honoured principle that any person is innocent until proven guilty; the staff involved behaving like judge, jury and jailer, as if supermarket aisles were an extra- territorial jurisdiction.
Michael was forced into a back office where his captor demanded that he take off the (then obligatory) Covid face mask that he was wearing, and provide his identification. Michael refused to do so. The man then claimed that he worked ‘for the government’, but when this was questioned by the Michael, his captor merely flashed a blue card at him before leaving the room.
Also present in the room was a uniformed security guard, a man with a Sainsbury’s name tag (who subsequently identified himself as the store manager), and another person who had been detained in this allegedly ‘gang busting’ operation.
Michael attempted to explain to the manager and the security guard that he had nothing to do with the other person who was detained, however they repeated the accusation about Michael being part of an organised gang stealing from the store and maintained that he had been seen on CCTV ‘communicating’ with other members of the gang. Despite Michael’s protests to the contrary, the security guard and manager maintained that they had not made an error and that his guilt was ‘proven’ by the CCTV. They then refused to allow Michael to leave the room and said that he would be held until police officers attended.
Michael provided the registration number of his car so that further CCTV footage could be checked to prove that he attended the store on his own and showed his captors his bank card with his name on, including for what it was worth his title of ‘Dr’ (although he was under no obligation to do either of these things). His cooperation availed him naught and he continued to be held.
After some time, two Police officers arrived. One of these Officers told Michael that he had reviewed the store CCTV and did not believe that Michael was involved in any thefts. The officer then told Michael that he was free to leave. However, Michael suffers from diabetes, and by the time that he was released he felt weak and lightheaded as his blood sugar levels were low. He asked whether he could purchase a soft drink with sugar but was refused.
As Michael was led out of the back office – Sainsbury’s temporary ‘Police Station’ – he was offered a bunch of flowers for his wife, which he declined. His compensation, I am pleased to say, was ultimately to be measured, not in petals but in tens of thousands of pounds.
Before leaving, Michael told the store manager that he wanted to make an official complaint. The manager said that hat he would record the complaint but refused to provide the Michael with any reference numbers for the incident or identify the member of staff that had sworn at him.
Accordingly, a few days later Michael emailed a formal complaint to Sainsbury’s customer services. In response, Sainsbury’s Executive Office first claimed that “after full investigation” they had determined that his complaint would be dismissed – only to retract this the following day (following another ‘full investigation’ we might wonder?) now stating that they accepted that Michael had been “identified in error” by a security guard employed by Mitie PLC, a well known private security company who work as subcontractors for supermarket chains and other nationwide businesses.
Sainsbury’s now somewhat improved on their bunch of flowers by offering Michael a ‘goodwill’ payment of £150, which he also wisely did not accept.
In a follow-up email Sainsbury’s stated-
“I can confirm the store have advised that you were identified incorrectly, and have mentioned, that as you were leaving our store, you were walking along side or behind those involved in a major shop lift. As a result of this, our guard wrongly accused yourself for being involved therefore you were detained in error. The way the guard handled the situation is highly unacceptable and is something that is being thoroughly reviewed with our security team. Please be assured, any action deemed necessary will be taken. Our team within the store should have handled this matter in a highly professional manner so to swear at yourself is completely unacceptable. Sainsburys take full ownership that you were detained in error and our guard and management team have been fully addressed to prevent a similar case going forward.”
As a result of the force used upon him, Michael was left with a sore arm, but far worse was the psychological damage that had been caused. Michael was deeply upset by the incident and felt extremely humiliated that it had taken place in full view of members of the public and Sainsbury’s staff, one of whom had sworn at him. Michael found that he was unable to properly enjoy his daughter’s birthday party due to the impact of the incident and he suffered sleeplessness thinking and worrying about the incident, particularly how the incident might both physically and mentally impair his ability to perform medical procedures in his job.
Michael also found himself unable to return to this particular Sainsbury’s store because of the highly distressing memories it brought back, and whilst able to bring himself to enter other supermarkets, he found himself plagued by anxiety whilst in such premises, for fear he might again be falsely accused of theft, detained, and assaulted. He also suffered from a legitimate concern that whilst he was being branded as a shoplifter, he might have been recognised by a colleague or patient, and feared damage to his professional reputation as a result.
Taking Action Against Sainsburys
After hearing Michael’s story I agreed to take his case on and prepared and presented a detailed letter of claim to Sainsburys.
In response to the claim, and contrary to their earlier assurance to Michael that they “took full ownership” for the error, Sainsburys prevaricated and delayed to such an extent that it was necessary for me to issue an application for Pre-Action Disclosure in the County Court to get them to hand over all relevant evidence.
In advance of the hearing of my client’s application, Sainsburys agreed to disclose the CCTV footage of the incident and then subsequently sought to pass the blame for what had happened onto the “reputable security services” whom they had employed i.e Mitie PLC.
The Mitier They Are, the Mitier They Fall…
In the circumstances, I now presented a claim to Mitie, with whom I have crossed swords on previous occasions, alleging both false imprisonment and assault and battery on behalf of Michael. Following investigation, Mitie admitted that their security guard had had no reasonable grounds to detain my client. I obtained medical evidence to quantify the full extent of the psychological impact which this incident had had upon my client, and in response Mitie put forwards an initial offer of £8,500 damages, which Michael rejected on my advice.
I am pleased to announce that I was ultimately able to negotiate a settlement of £12,000 damages for Michael , plus his legal costs; fair recompense for all he had gone through – and a lot more than a halfhearted bunch of flowers.
I think it is highly unlikely that either the big retail chains or security firms like Mitie will change their staff recruitment or training policies any time soon, and incidents like this will keep on happening.
Three Key Points To Remember When It Comes To Shoplifting Arrests
Retail staff and security staff, no matter what uniforms they are wearing, nametags or attitude they are displaying, have no more powers to effect a “citizen’s arrest” under Section 24A of PACE than do the rest of us.
Section 24A of PACE empowers citizens to arrest others whom they “reasonably suspect” to be committing an offence – see Section 24A 1(b) and 2(b) of PACE. Very often when an innocent person is stopped and accused by staff of shoplifting there will, practically speaking, be an absence of reasonable suspicion – just as in Michael ’s case, where an aggressive security guard appears to have negligently grabbed the wrong person. If you are innocent and have been detained by security staff, even if only for a few minutes, you should always seek legal advice to establish if you have a right to compensation.
Retail and security staff in shoplifting cases, utilising Citizen’s Arrest powers, can only detain you until the Police arrive and use only reasonable force to do so – they are absolutely not empowered to interrogate you, hold you prisoner without contacting the Police or to search you or your belongings. A “Citizen’s Arrest” does not entitle a “Citizen’s Search” of the detained person.
Commonly, however, Retail Security staff ride roughshod over these important rules and safeguards designed to protect a person’s liberty and property. Contact me if this has happened to you, and together we’ll hold them to account.
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Detained and searched for looking at a Police Officer the wrong way? Sadly, that was what happened to my client Allen Norman.
Police Officers live in a world of ranks, uniforms and chains of command and unfortunately often bring that mentality to the everyday world, behaving as if they ‘out-rank’ ordinary citizens.
One afternoon in June 2022, Allen was shopping in the heart of London and passed a Police carrier that was parked up, close to a Boots store.
Having completed his shopping in the store, Allen returned outside and went to retrieve his bicycle, which was locked to a nearby lamppost.
At this time, two male Police Offices – now known to be PC Laurie and PC Minnerthey of the City of London Police, approached Allen and asked if he was “Alright” and what he was up to.
Allen was immediately apprehensive, as many of us would be if stopped by the Police in such circumstances. He asserted that he was fine, but that he would not be answering any questions.
PC Minnerthey then began to accuse Allen of “Giving us evils” as he had walked past their Police carrier and then of allegedly “Fiddling around with a lot of stuff” in the Boots store (whatever that was supposed to mean).
Ignoring this, the Officers now grabbed Allen’s arms and forcefully handcuffed him.
Again, Allen demanded to know on what grounds the Officers were asserting a legal power to search him. PC Minnerthey repeated his bizarre accusation: that Allen had been giving him and his colleagues “Evils”, before then going into a shop and “Fiddling around”.
PC Laurie then stated that as Allen walked down the road, he was seen “eyeballing” the Police carrier, “paying a lot of attention” to the Officers within, and had then gone into a shop where he was seen to be “fumbling around” and “potentially up to no good.”
Numerous other officers now attended, it obviously being a slow day in the city of London…
The Officers continued to hold Allen – although he was not resisting them, or attempting to leave – and searched him, including removing his wallet and mobile phone from his possession.
Apparently having polished his script a little more, PC Minnerthey now advised Allen that – “You’ve appeared to be concealing yourself in the shop while you appeared to be fiddling about with things, okay, we’ve come over to have a chat with you and straightaway you’ve been very very “anti”, not letting us get a word in edgeways. You’re extremely nervous, your breathing rate is up there, we think you’ve got something to hide. We suspect you might have been involved in something in the shop and therefore we’ve searched you under section 1 PACE for any stolen items.”
Section 1 of PACE (with irrelevant sub-clauses omitted) provides as follows-
1 Power of constable to stop and search persons, vehicles etc.
(1)A constable may exercise any power conferred by this section—
(a)in any place to which at the time when he proposes to exercise the power the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission; or
(b)in any other place to which people have ready access at the time when he proposes to exercise the power but which is not a dwelling.
(2)Subject to subsection (3) to (5) below, a constable—
(a)may search—
(i)any person or vehicle;
(ii)anything which is in or on a vehicle,
for stolen or prohibited articles; and
(b)may detain a person or vehicle for the purpose of such a search.
(3)This section does not give a constable power to search a person or vehicle or anything in or on a vehicle unless he has reasonable grounds for suspecting that he will find stolen or prohibited articles.
Allen correctly denied that the Officers’ had any grounds to detain and search him under this legislation; of course, this did not stop them.
It was in fact quite apparent that, no matter how they attempted to dress it up, the reason that the Officers were searching Allen was because they didn’t like the way he had looked at them as he passed their vehicle. Somewhat unsurprisingly, PACE does not in fact grant Officers the power to search someone because he is suspected of ‘giving them the evil eye’ and the Officers had no legal grounds for interfering in Allen’s business that day.
To be entirely clear, no member of the public or member of staff from the Boots store had made any accusation of shoplifting against Allen whatsoever, and at its highest all the Officers could apparently say was that they had seen Allen ‘fiddling about’ with things in the store – but just as with looking at Police Officers, ‘fiddling around with things in a store’ is not a crime; in fact it is shopping.
The search having proved negative, Allen’s handcuffs were removed after a period of about 7 minutes.
Allen was outraged by the incident and felt as if he had been mugged, although at all times he kept his temper under control and spoke respectfully to the squad of Police Officers now assembled around him.
Aware of his rights, Allen asked PC Minnerthey for a Stop Form. He was at first (wrongly) told that a Stop Form could not be provided because he had not given his personal details (which he was under no legal obligation to do). Allen asserted that he was entitled to a Stop Form whereupon the Officers told him that he would have to subsequently attend Bishopsgate Police Station, in order to collect it.
His phone was now returned to him, and he was told that he was free to go.
Throughout their conversation with Allen, as evidenced on their own body camera recordings, PCs Minnerthey and Laurie had, in effect, confessed their improper motivations to him. It is quite clear that they had detained, manhandled and searched him simply because they thought he was looking at them ‘the wrong way’ as he went past, compounded by his ‘failure’ to smile and engage with them when they approached him. Allen was in fact doing nothing wrong, and was in no way behaving in a criminally suspicious manner – but sadly the Officers’ mindset was obviously such that they immediately considered the slightest display of a ‘anti-police’ attitude tantamount to being a crime in itself.
Such, indeed, is the mindset of the very many Police Officers who fall into the trap of believing that they outrank ordinary civilians and that, accordingly, acts of insubordination from those ‘lower down’ the rungs need to be punished by some muscular exercise of Police powers. In this way, the boundaries of Police Officers’ egos very frequently exceed the boundaries of the law.
A few days later, Allen duly attended Bishopsgate Police Station, required them to give him a copy of the Search Form and lodged a formal complaint. That complaint was summarily dismissed by Inspector Mackenzie (which is the knee-jerk Police reaction to most complaints).
Allen therefore turned to me for assistance, and when the City of London Police continued to maintain their denial of any wrongdoing, I instituted County Court proceedings on behalf of my client, suing the Police for false imprisonment and assault and battery on the basis that the Officers had grossly misused their Stop and Search powers under Section 1 PACE because they did not honestly or reasonably suspect that Allen was in possession of “Stolen or prohibited articles”.
I am pleased to confirm that through those Court proceedings I was able to win for Allen compensatory damages of £8,500, plus his legal costs and a letter of apology from the City of London Police in the following terms –
“The Commissioner admits liability for false imprisonment and assault and battery as set out in your Particulars of Claim.
On behalf of the Commissioner I accept that on 22 June 2022 you should not have been detained or searched by the Commissioner’s officers. The officers’ grounds for stopping and searching you were not objectively reasonable in the circumstances. I unreservedly apologise to you on behalf of the Commissioner and confirm that the officers involved will be notified of this decision. I trust that this apology will go some way to restoring your trust and confidence in the City of London Police.”
A healthy scepticism of Police authoritarianism is essential in any democratic society; indeed it is the first bulwark in the defence of our civil liberties. Police Officers who baselessly pull rank on ordinary citizens – in this case with only the shameless excuse of having been ‘looked at the wrong way’ – need to be taught a lesson in good manners, in respect for individuals’ privacy, dignity and integrity of person, and in the limits and purpose of their powers.
That the Police still won’t properly police themselves, is amply demonstrated by their mass rejection of legitimate complaints. Perhaps when the letter of apology I have quoted above comes as a prompt and heartfelt response to a person’s initial complaint, then we will know that things have really changed for the better.
Until they do, it is up to brave citizens such as Allen Norman to take on the system, and teach the Police how to be better.
Since the conclusion of his case, Allen has sadly passed away. His son has given me permission to publish this blog post, telling me that his father would have wanted this story told. I am proud to give Allen Norman the last word against overbearing and unconstitutional Police bullying.
Update
Rob Warner at Crimebodge has produced a video about Allen’s case. Watch it here:
Earlier this month, I wrote about the sense of satisfaction that can be achieved by a Claimant in a Police action through a well-deserved but hard- fought win in collaboration with your lawyer, and a case in point is the one which I will describe in today’s blog post, in which my client eventually prevailed – but only after Greater Manchester Police (GMP) had fought him tooth and nail through the Magistrates and County court systems – and literally so in the living room of his girlfriend’s house.
My client faced Police brutality and a robust defence from GMP , but his determination to achieve justice saw him through to victory; and this is how he did it.
In the summer of 2019, Ben was in a relationship with a woman who lived in Greater Manchester.
One afternoon, whilst Ben was at his partner’s house, the couple had an argument, as couples do, concerning the behaviour of Ben’s partner’s teenage daughter. Although voices were raised inside the house, there was no violence involved and nobody called the Police.
Unfortunately, Police Officers including PC Day and PC Hassan were in the vicinity investigating an unrelated matter, and overhearing the argument, took it upon themselves to intervene. The officers entered the garden of the house and PC Day opened the back door, where he was met by Ben and his partner.
PC Day said that the officers “Wanted to come and speak to you and see what the shouting.”
Ben considered that the presence of the officers was unnecessary and replied “Well, I don’t want to speak to you.” His partner said that there had been an argument and that she wanted Ben to leave. Ben wholeheartedly agreed, telling the Officers “Which I am doing when I’ve got my stuff.”
Nevertheless , PC Day stepped into the house, uninvited, and referred to the “shouting and screaming” (although this was certainly no longer ongoing).
Whilst Ben’s partner went upstairs, PC Hassan pushed my client into the front room (placing his right hand upon Ben’s chest) and was followed by PC Day.
Ben walked into the kitchen, where he again said that he would collect his stuff and go, to which PC Hassan replied “That’s sound”.
Ben made it clear that he just wanted to “Get out of this situation” and “Get my stuff and go.” PC Day said “Right, well get your stuff and go and we’ll supervise it.”
But then – without warning – PC Hassan then grabbed Ben’s left arm, announcing that he was unhappy with his behaviour.
Maintaining a firm grip on Ben’s arm, PC Hassan then pushed Ben out of the kitchen and back into the living room.
PC Hassan now announced that Ben was under arrest for “Breach of the Peace” and simultaneously applied a handcuff to his left wrist, whilst PC Day took hold of Ben’s right wrist. PC Hassan told Ben to put his hands behind his back.
Ben was bewildered at the Officers’ unnecessary force, and sought to remonstrate verbally, but without any physical resistance.
However, his complaints fell on deaf ears, as without warning, and whilst Ben was talking to PC Hassan, PC Day sought to pull Ben to the ground – but lost his footing/grip as he did so, causing both he and my client to fall towards the floor. Ben was shocked, but managed to steady himself and stood back up.
Unfortunately, his shock was only just beginning, as Ben then felt a blow to his face from PC Hassan and was then grappled by multiple officers. Ben attempted to defend himself from this assault by pulling his arms free, and shaking the officers off, but was unsuccessful. The officers delivered multiple blows to Ben’s face and body and forced him back against the wall, and then onto the floor in the corner of the room.
In effect, Ben had been ‘mobbed’ by the officers, the two male officers having been joined by one of their female colleagues. He was completely overwhelmed.
Whilst Ben was lying on his front on the floor, with other officers holding down his body, PC Day then gripped Ben’s neck, pushed his face into the carpet and sprayed him in the face with CS gas from ‘point blank’ range. Ben was in agony and struggled to breathe.
Ben’s ordeal had not finished there; PC Day now punched him in the face and PC Hassan delivered further blows with his hands to Ben’s back, all whilst Ben was being held face- down on the floor.
Ben’s arms were then taken hold of and he was handcuffed to the rear whilst still on the floor, with multiple officers applying pressure to various parts of his body, including his torso and legs.
Ben was immediately aware of significant pain and discomfort in his face and body from the blows, and of burning sensations to his face and in his mouth and blood coming from his mouth. He was also struggling to breathe and genuinely feared that he might die. Extremely frightened, Ben called out for an ambulance , begging the officers with the words “I’ll do whatever you want.”
Ben was then marched out of the house, the prisoner of the Officers, and placed in a van. Before being taken to Custody, however, Ben had to first be transported to hospital for the injuries which the Officers had inflicted upon him to be ‘patched up’, and there he underwent a facial x-ray and it was noted that he had a loose tooth, which subsequently fell out.
To quite literally add insult to injury, whilst at the hospital, Ben was further arrested for the alleged offence of assaulting the three Police Officers who had in fact assaulted him. Again, this is another sadly typical feature of such cases – that the innocent victim of Police violence faces charges that could result in his criminalisation and imprisonment, all for the ‘crime’ of having been beaten up by the Officers in the first place, as if they feel such charges now need to be laid to justify the level of force they have used.
Thereafter, Ben was taken to a local Police Station, where he was processed and incarcerated.
Early the following morning, Ben was interviewed under caution and then yet further arrested for assault with the intention of resisting arrest. Once again, I view this as the Police trying to bury their own wrongdoing in a shallow grave of false charges, showering their victim with the ‘dirt’ of criminal offences. This is a sadly common tactic by the Police, and I can think of many occasions when it has been utilised by GMP in particular.
Ben was eventually released ‘under investigation’ after a period of 14 hours in custody.
Even this was not the end of his ordeal; some six months later, in February 2020, a Postal Requisition was sent to Ben charging him with the following offences –
Ben of course pleaded not guilty to these trumped-up charges, but had them and hence the real prospect of being wrongly convicted and being sent to prison hanging over him for well over a year, all against the stressful backdrop of the Covid pandemic and our national lockdowns, until the case was eventually listed for trial in June 2021 at Manchester Crown Court (a trial actually conducted at the Lowry theatre, owing to the continued restrictions of the pandemic). The stress which Ben felt at the thought of imprisonment was made all the worse by the fact that in the interim, he and his partner had had a baby girl and Ben was tormented at the thought of being separated from his daughter by incarceration. All of this played havoc with Ben’s mental health, causing him to become extremely anxious and withdrawn, and devastating his faith in the inherent justice of ‘the system’ and the Police in particular.
Then, at Court, the Crown Prosecution Service chose to offer no evidence and Ben was found not guilty on all three counts.
That decision indicates the objective weakness of the evidence against my client – the incident was caught in detail on multiple officers’ body cameras and clearly the CPS lawyers had realised that they were on a hiding to nothing pursuing it.
Why had Ben been charged in the first place and had to wait all this time for his innocence to be secured? As I have said above, I strongly feel that the decision to charge was, perversely but precisely, because of the level of force the Police had used against him.
It might now have been hoped that when I presented a civil claim for compensation to GMP on behalf of Ben, that they would see sense and do the right thing; but instead, they denied liability, giving us no choice but to issue County Court proceedings against the Chief Constable of Greater Manchester Police, which were met with an apparently robust defence.
GMP failed to take this further opportunity to admit their culpability, and instead threw buckets of time and money at this case, apparently determined to bring all resources to bear to deny Ben’s entitlement to civil redress for the wrongs he had suffered, including serving statements from all the officers involved and fighting the case almost all the way to trial.
Ultimately, my determination and Ben’s courage in pursuing the case, saw him through to victory and GMP cracked in the ‘home straight’ a few months before trial, agreeing to pay Ben £30,000 damages plus his legal costs (which will be substantial).
I would like to think that GMP and its officers will learn a valuable lesson from this case, and curb future practices of attempting to hide Police brutality and wrongful arrests behind the smokescreen of meritless prosecutions… but like someone who’s just been sprayed with CS gas at point-blank range, I won’t be holding my breath.
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.
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.
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.
This is a guest post by my colleague and fellow specialist in civil actions against the police, John Hagan.
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 Ezeji Jackson
My client Ezeji Jackson is a black man who was stopped by the police in 2011 on suspicion of drink driving.
As Ezeji 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. Mr Jackson 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.
Ezeji 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.
Mr Jackson, 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, Ezeji 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 Mr Jackson 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 Ezeji’s leg, but six of them admitted that they had simultaneously laid hands on him (three 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 two operations and was unable to work, unpaid for the majority of his time off work, for nine 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 Ezeji’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 Mr Jackson 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 Ezeji’s word against the statements of seven police officers who were all arguing that the use of force against him was reasonable and required in the circumstances.
That Mr Jackson had been convicted of having been driving whilst over the limit on this occasion.
This was extremely disappointing news for Ezeji to receive. The second firm of solicitors did correctly advise Mr Jackson 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 three years from the date of the incident.
This meant that Ezeji 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, Mr Jackson got in contact with my firm and instructed us to investigate and pursue his claim.
As Police Claims Specialists we soon determined that Ezeji’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 Mr Jackson’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 Ezeji’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 seven 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 Mr Jackson 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 six 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 Ezeji was flailing or waving his arms aggressively prior to any attempt being made to handcuff him, but the other five officers present did not apparently see this.
One of the officers stated that Ezeji 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 Mr Jackson was being overpowered and before he was lowered to the ground. The statements of the other four 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 Ezeji 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 seven men against one did not mean that the police would be exonerated.
Conviction for drink driving
Of course the fact that Ezeji 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 Mr Jackson 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 Ezeji 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 Mr Jackson’s arrest were injured in any way, whereas Ezeji sustained a fracture necessitating multiple hospital operations and a 9 month absence from work.
There was nothing in Mr Jackson’s medical history or records as considered by the Orthopaedic expert who I appointed to prepare a report in his case to suggest that Ezeji 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 Ezeji’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 Ezeji being reported as on the floor with a broken leg. Three minutes does not seem a very long time for the officers to have exhausted all avenues of resolution eg talking/reasoning with Mr Jackson– before resorting to violence in a situation in which the crime for which Ezeji was suspected was not itself one of violence, and nor had he assaulted any of the officers present. In other words, was it necessary for the officers to handcuff/lay hands upon Ezeji 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 Mr Jackson 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 Ezeji’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 Mr Jackson in May 2014.
In August 2014 West Midlands Police replied denying that any police officer had kicked Ezeji and requesting disclosure of his 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 Mr Jackson’s right to proceed with the case.
Medical evidence was obtained from an Orthopaedic Consultant in regards to his 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 Ezeji’s injury was denied and in which the Defendant stated that Mr Jackson 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 Ezeji’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, Ezeji rejected the Defendant’s offer.
We however put forwards a counter offer in August 2016 to settle his 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 Ezeji £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 Ezeji’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.
Mr Jackson now has 20,000 reasons to tell his former solicitors why they were wrong!
This is a guest post by my colleague and fellow solicitor, John Hagan.
John Hagan, solicitor.
Those of us who want to live in a civil society, where violence is always the last resort, and not some version of a Judge Dredd comic, in which a ‘hardcore’ police force shoots people for littering, may have been dismayed by the reaction of some sections of public opinion to a video released this week showing a Metropolitan police officer shouting at a motorist and viciously smashing the motor car’s windscreen with his truncheon, before trying to cut his way in through it with a knife.
In the video the police officer can be seen confronting the motorist (identified in press reports of this story as Leon Fontana), who, perhaps not coincidentally, is a young Black man. My colleague Iain Gould has previously blogged about the dangers of “Driving whilst Black” i.e the perception that black men are disproportionately targeted by the police for traffic stops.
The police have powers under S.163 and 164 of the Road Traffic Act 1988 to require drivers to stop their vehicles and produce their licence and insurance and confirm their identity. It does not however empower the police to require that a motorist who has been stopped must exit his vehicle, nor to require that he hand over his car keys.
Whilst it is true that Leon states he is not going to get out of the car, he is otherwise co-operating with the officer, and is not refusing to let the officer check his details. When the officer states that he is concerned that Leon might just drive off, Leon removes his keys from the ignition and places them on the dashboard…then within 30 seconds of the conversation beginning the officer is screaming “Get out of the car! You’re not allowed to drive it!” and starts smashing the windscreen viciously.
It appears that the officer has just received some information suggesting that Leon may only have a provisional licence (this subsequently proves to be incorrect, as it is a case of mistaken identity, cleared up within moments, as soon as other officers become involved…). However the officer immediately reacts to this information by shouting “Get out the car – you’re not allowed to drive it!” and within 15 seconds has started to pummel the side of the car with his truncheon before the man inside has even had a chance to respond. The officer is now screaming his command “Get out of the car!” as if he was involved in a life and death situation rather than a routine traffic stop. If a member of the public had been behaving like this – basically attacking the car and shouting at the top of his voice – he would surely have been arrested. The officer appears to have no impulse control in this situation, and there is no sign that he made any attempt at a reasonable and civil discourse with the driver. Surely this is not how we want our police officers to behave, nor why we empower them with special authority to inflict violence or commit damage to property. The officer was, in my opinion, behaving in a totally unprofessional and irresponsible manner.
As the footage continues, the motorist can be heard telling the attacking officer (in an entirely calm tone of voice) that he has a licence and insurance. The officer informs the motorist “You are not qualified, you’re not allowed to drive” apparently having jumped to an unshakeable belief that the motorist is an unqualified individual without going to the trouble of listening to what he is being told, or making any effort to check documents and establish the driver’s actual identity.
Manifestly, the police are here to reduce violence and aggression in society, not actively introduce it into otherwise calm situations (the motorist had clearly responded to police instructions to stop his car and was talking to them through an open window).
If somebody tells an officer that they have been mistaken for somebody else, surely the officer should spend at least a minute or two investigating that possibility in an amicable manner rather than shouting the person down and smashing his windscreen to pieces? And what purpose was being served by the officer smashing the windscreen – surely he didn’t intend to pull Leon out through it? The destruction of someone’s property by a police officer to make them comply with instructions during a low- level traffic stop is in my opinion a crazy and unjustifiable turn of events.
In my opinion, the police officer’s actions can only be characterised as anti- social, thuggish behaviour which clearly flies in the face of the norms of civilised behaviour as well as the specific training which police officers are given as to how to resolve a conflict situation.
Police officers are extensively taught the techniques of ‘conflict management’ which emphasise that violence must be a last resort after non- violent approaches to resolving the situation in the form of ‘officer presence’ and ‘tactical communications’ are first considered. Does anyone really doubt that the officer pictured in this video could have had a productive conversation with the motorist had he so chosen?
Sadly, as I discovered during my appearance on the Jonathan Vernon Smith (JVS) Show on BBC 3 Counties radio last week, some people do condone the officer’s behaviour.
You can listen to my interview here:
One caller to the show stated “the guy in the car should be prosecuted” whilst another called the motorist a “toe rag” and accused him of “winding up” the officer by the act of filming the confrontation.
JVS himself, perhaps adding fuel to the fire of his listener’s fury, speculated aloud that the police may have believed Leon to be a dangerous criminal with a history of using weapons, and that he might even have had “a gun in the glove box”. However, there was no basis for this assertion. All the evidence available to us is to the effect that the worse the police suspected of Leon was that he was driving without a full licence or insurance, which is a non- imprisonable offence.
The police are entrusted with special powers to use force against other citizens, but it is only right that the officers respect the safeguards that the law has put in place to prevent the abuse of those powers and to ensure that we have a functioning civil society in which people can have trust in the police – without which, they obviously cannot do their jobs and the risk of harm to both officers and citizens generally increases.
Police powers of arrest without a warrant are enshrined in the Serious Organised Crime and Police Act 2005 S.110. In order to exercise his power of arrest, the officer must have a reasonable belief in its necessity on the basis of one or more of the following criteria –
that:
the name of the relevant person is unknown to, and cannot be readily ascertained by, the constable,
the constable has reasonable grounds for doubting whether a name furnished by the relevant person as his name is his real name,
that:
the relevant person has failed to furnish a satisfactory address for service, or
the constable has reasonable grounds for doubting whether an address furnished by the relevant person is a satisfactory address for service,
3. that the constable has reasonable grounds for believing that arrest is necessary to prevent the relevant person:
causing physical injury to himself or any other person,
suffering physical injury,
causing loss of or damage to property,
committing an offence against public decency, or
causing an unlawful obstruction of the highway,
that the constable has reasonable grounds for believing that arrest is necessary to protect a child or other vulnerable person from the relevant person.
that the constable has reasonable grounds for believing that arrest is necessary to allow the prompt and effective investigation of the offence or of the conduct of the person in question, or
that the constable has reasonable grounds for believing that arrest is necessary to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.
It is highly questionable whether the officer in this case could have possibly had a reasonable belief that any of the above conditions applied to Leon Fontana. In which case, he had no power to arrest Leon, and no power to use force against his motor car to effect an ‘arrest’ – which renders his smashing of the windscreen not only a civil but possibly a criminal offence.
Contrary to what some of the listeners of the JVS show apparently believe, there is no seventh criteria of “having reasonable grounds for believing the person to be a toerag” nor any power for the police to arrest someone who is filming their encounter, or refusing to exit a vehicle, if there are no other circumstances such as a refusal to identify themselves or an attempt to abscond or obstruct the investigation of a suspected offence on the part of that person.
Here, as we can all hear, Leon was offering to identify himself – or at least was trying to go through that process in a respectful manner with the officer, but was being obstructed by the officer’s unreasonable anger towards him.
This case reminds me of another I have recently been involved with, also a video taped encounter, in which police officers stopped a car on suspicion of ‘no insurance’ and in which the driver – a middle- aged white man as it happens – resolutely refused to identify himself to the officers involved and repeatedly made it clear that not only would he not exit the car, he would simply not identify himself or produce any documentation. The officers attempted to reason with him for approximately 8 minutes, before deciding to discharge a CS gas spray into the car.
Whilst I do not agree that the CS gas should have been used, it is perhaps telling that in a confrontation with an older, white motorist the police gave considerably longer to conversation with an individual who was a lot more obstructive, than did the officer in this video towards a young black man.
I am sure that in the present case, all the unpleasantness could have been avoided, if the officer had just engaged in the civil conversation which Leon was offering him.
But you may think I am biased in that assertion, being a lawyer primarily working on behalf of people who believe they have been the victims of police misconduct.
In which case I will call as my next witness, the other contributor to the JVS show that morning, Peter Kirkham, who was formerly a Detective Chief Inspector with the Met.
Mr Kirkham acknowledged that the officer’s behaviour was “not a good example of conflict management skills” and made the point “when you’re dealing with a conflict situation the idea is you’re not making it more aggressive”.
Acknowledging that it was plain from the video that the officer has lost his temper, Mr Kirkham concluded by saying that if he was the supervising officer he would certainly be investigating the conduct of the officer concerned, whose actions could amount to criminal damage if there was no justification for his use of force.
The officer appears to have suffered a moment of madness; sadly for him he must now face the consequences of this. The uniform he wears is a symbol of the special authority vested in him but it does not, and should not, give him immunity from accountability for actions which if perpetrated by a member of the public may well have resulted in a night in the cells.
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.
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:
A public officer;
Exercised a power in that capacity; and
The officer intended to injure the Claimant by his/her acts. This is known as ‘targeted malice’; or
The officer knowingly or recklessly (in the subjective sense) acted beyond his/her powers. This is known as ‘un-targeted malice’; and
The officer’s act(s) caused damage to the Claimant; and
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:
Sending and receiving text messages and telephone calls of a personal and sexual nature to Clare, a victim of domestic abuse.
Requiring Clare to attend at the police station on a number of occasions.
Attending Clare’s home address on a number of occasions.
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.
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:
A complaint of rape had been made by Ms A;
The paediatrician had concluded that Ms A had received acute trauma to her genital area;
The marks were consistent with an attempt at intercourse;
Ms A identified a mixed race male as being present when she began kissing the unknown white make and went back to his tent;
Ms A could recall walking back to the tent with the unknown white male and the mixed race male;
This mixed race male was described as wearing a red puffa jacked and being in his late teens/early twenties;
Robert was 16 years of age and of mixed race.
Enquiries by Mrs A’s friends and family identified that this mixed race make was Robert;
The descriptive match with Robert was sufficiently proximate to implicate him (see inter alia, Armstrong -v- West Yorkshire Police [2008] EWCA);
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.
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 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.
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.
I have a tremendous amount of respect for people who to take actions against the police.
Their fight for justice can be a hard, long, and stressful process. Why? Because they have to:
know enough about the law and police procedure to determine if they have a valid complaint and/or potential claim
be mentally strong enough to take action against the police
be determined to find a suitably qualified solicitor they can trust, given the considerable financial risk of litigation.
People often get help with the first part. Duty solicitors at police stations, family and friends, research on the internet, can all help identify wrongs. But the rest is down to the individual.
How matters progress often depends on their past experiences. Many of my clients have never been in trouble with the police and often still trust them, despite what happened.
“those that had the least amount of contact had much higher expectations of police behaviour and were therefore more willing to complain about a range of potential misconduct.”
Sadly, trust in the police complaints process is often misguided. Often, only when it fails do we find out if the person involved is truly determined to seek justice. One such person was my client, John Rutherford (name changed at his request), from London. His story shows why I have such respect for people who brings actions against the police.
Racial Abuse Arrest
On 26th February 2014 my client, a professional, middle-aged white man got into an argument with a black woman after parking his car on the narrow street in front of his home. The woman verbally abused him for blocking the path of an oncoming car while he adjusted his road-side wing mirror to stop it from being damaged. He responded by telling her to park her own car behind his to let the traffic pass. Their exchange involved the use of coarse language and ended when the woman took photographs of his car and said that she was going to report Mr Rutherford to the police for racial abuse. She told John that, even though she knew he had not racially abused her, she was confident the police would take her seriously, and not “some fat, angry, white guy”.
More than 3 weeks later, on 20th March 2014 at 9:30am, Mr Rutherford was shocked when 11 Metropolitan Police officers turned up at his home.
An officer told my client that he was under arrest for using “racially aggravated threatening words and behaviour” following the incident on 26th February.
John vehemently denied that he had been racially abusive. The police refused to listen and told Mr Rutherford that they were taking him to his local police station. He was not allowed to shower but was allowed to dress under close supervision of an officer. During this process, one of the officers flippantly said to my client “Your taxi is waiting, the meter is running”.
John was “booked in” before the Custody Sergeant. The circumstances of his arrest were recorded as “Officers investigating an allegation of road rage have cause to believe this male is involved. Allegation of racially aggrieved (sic) Sect 4 POA. Arrested to interview, prevent harm.”
The reason for arrest was recorded as “to allow the prompt and effective investigation of the offence or of the conduct of the detained person”. My client was searched and his personal possessions removed.
He requested pre-interview disclosure information. The Custody Sergeant refused, saying, “We don’t, not to people like you”.
Mr Rutherford asked for the Duty Solicitor. He was then photographed, his fingerprints and DNA sample taken, and locked in a police cell.
The Duty Solicitor and officer in charge saw John at approximately 11am. The Duty Solicitor told my client that he had also not been given any pre-interview disclosure information and that he had been advised that the alleged victim, the foul-mouthed woman, had not even been interviewed. Given that the police appeared not to have crucial evidence Mr R immediately asked how they could justify his arrest. The officer in charge realised they were on shaky ground on this point and tried to dismiss it, saying that he was about to interview the alleged victim at 12pm.
After several hours of detention, an Inspector visited Mr Rutherford in his cell for his custody review. He told John that “I have authorised your further detention”. My client immediately challenged the officer, saying that he had pre-judged the further detention without hearing from Mr Rutherford or his solicitor.
The Inspector agreed to investigate and authorised my client’s release. At 4pm John was released on police bail and told to return to the Police Station on 9th April.
Police Complaint Farce
Readers will be in no doubt that Mr Rutherford is an intelligent man. He felt aggrieved that:
the police could not justify his arrest having failed to obtain the victim’s evidence first, even though the incident occurred over three weeks earlier.
they failed to invite him to attend for a voluntary interview, instead sending 11 officers to his home causing John and his family great embarrassment, shock, and distress.
he had been mistreated during arrest and at the police station.
the police denied his reasonable request for information.
they pre-judged his further detention and delayed his release.
In his opinion, he had the legal grounds for a complaint. Mr Rutherford is also confident, determined, and articulate. Consequently, he had the first and second traits of people willing to take on the police.
My client lodged a formal complaint within a few days of his arrest which was handled by an Inspector in the same division as the arresting officers. Incensed by his treatment so far, John’s priority was to ensure that he would not be re-arrested when he returned to the police station on 9th April.
The investigating Inspector agreed that Mr Rutherford could attend the Police Station on 9th April as a volunteer. During interview, John established that the so-called “victim” had just been interviewed earlier that day (9th April), despite being told previously that she was going to be interviewed on the same day he was arrested (20th March). The allegation of racial abuse was put to Mr Rutherford which he vehemently denied. The case was referred to the CPS for advice and John was informed that his complaint could not be investigated while the police waited for the CPS’s input.
Eventually, on 21st May, Mr Rutherford was advised that no further action was to be taken against him. John understandably felt aggrieved by the actions of the Metropolitan Police and pursued his complaint.
To say he was given the run-around would be an understatement:
His complaint was (wrongly) dealt with internally by the Metropolitan Police, rather than being referred to the IPCC. Mr Rutherford described this as “akin to getting Bernard Madoff to investigate customer complaints about his own investment scheme”.
The Inspector who initially investigated the complaint failed to apologise, even though he confirmed that “You were circulated as a suspect on the 05/03/14 to facilitate a prompt and effective investigation and protect a vulnerable person. On reflection, once the vulnerability passed the decision to arrest could have been reassessed and could possibly have been investigated utilising less intrusive methods”.
Dissatisfied with the response, he appealed. The same Inspector dealt with the appeal. In January 2015 he said: “the investigation process could have been progressed without the requirement for arrest however the arrest itself was not unlawful”. Despite this, Mr Rutherford made some progress when the Inspector finally said “I wish to apologise for the distress this incident has caused you and accept our failings in how we progressed this investigation. To be clear, this investigation did not require your detention in custody to secure your account, nor was it necessary to affect a prompt investigation”.
John was dissatisfied with the apology for “distress” only, and, among other things, with the Metropolitan Police’s failure to admit his unlawful arrest and false imprisonment, or to confirm that they had breached professional standards. He appealed to the IPCC.
In March 2015, a year after the arrest, the IPCC confirmed Mr Rutherford’s view that his complaint was not suitable for Local Resolution and should never have been dealt with internally. It also confirmed that the Inspector’s response to the appeal was effectively a re-hash of the initial investigation, and that the matter should be sent back to the Metropolitan Police for a re-investigation.
Instructing an Actions Against the Police Solicitor
By this time, John Rutherford was despondent. He, like many, was initially reluctant to engage a solicitor. I suspect this was because he felt comfortable dealing with the complaint himself and wanted to avoid issues about legal fees, trust, and confidence in his legal representation.
He found me on Google and got in touch. At this point, the third trait (finding a suitable solicitor) kicked in and we vetted each other.
I was frank with Mr Rutherford. I offered no guarantees but, on the strength of his instructions and the documents he provided, I felt he had a viable compensation claim for wrongful arrest and false imprisonment. I was confident enough to act under a Conditional Fee (“no win no fee”) Agreement, in which I only got paid if he won.
After the IPCC’s criticism the Metropolitan Police Inspector who originally investigated John’s complaint completely changed his tune. He now confirmed in a third report that, in his opinion, “The arrest was unnecessary and therefore unlawful. Your complaint has been upheld”.
Despite this, Mr Rutherford remained unhappy with the complaint investigation. On my advice we focussed on his civil claim for compensation. I intimated a claim.
I explained to my client that the Inspector’s opinion was not binding on the police in the civil claim. Unsurprisingly, the Metropolitan Police’s legal department failed to either admit or deny liability suggesting that “the matter could have been investigated utilising less intrusive methods”. (my emphasis) They put forward an offer of £2,500.
I advised John that this offer was too low in my opinion. I suggested we put forward a counter-offer and, if the police did not accept it or make a reasonable offer, to issue court proceedings. This was not an easy decision for him to make.
It is a common misconception that “no win no fee” agreements also mean “no risk”. In fact, when the Claimant issues court proceedings they are at risk of paying the Defendant’s legal costs if they do not win or beat an offer. Litigation is not cheap and the police instruct expensive lawyers. It is not uncommon to see legal bills in actions against the police for over £50,000.
The decision to issue court proceedings required Mr Rutherford to trust my judgement. He knew that I have the necessary skills, expertise, and confidence which come from practising in this area of law for over 20 years. I was also invested in his success because I was risking my firm’s money and time by acting under a “no win no fee” agreement. But irrespective of the level of confidence and trust, there are no guarantees.
After weighing the options John took my advice and authorised me to issue court proceedings.
In response, despite their previous offer and failure to increase before proceedings, the Metropolitan Police put forward a revised offer of £6500.
Better, but not enough.
Mr Rutherford authorised me to negotiate further. I eventually settled his claim for £7400, nearly three times more than the first offer, plus legal costs.
Here’s what John said about my service:
“I was happy with every aspect of advice that you gave me, along with the guidance that you offered, I negotiate contracts for a living, and am quite legally aware. However, the threat of issuing proceedings against the Metropolitan Police caused me concern. Your constant encouragement that everything was ok along with your experience and attention to detail impressed and bolstered my confidence, I was also happy with the result”.
Specialist Legal Help
People often complain direct to the police to get answers, accountability, and sometimes compensation. They do this without legal representation because they trust the police to investigate their complaint in a fair and just manner, without bias.
Instead, what they get is delay, avoidance, and a strong institutional bias against the person bringing the complaint and in favour of the officer(s) involved. They often only seek a solicitor’s help when they have lost all faith in the police complaint system.
In April 2016 there were 134,785 practising solicitors in England and Wales. Search Google for “actions against the police solicitors” and you’ll get 127,000 results. How hard can it be to find a good one to take on the police?
Answer: not so easy. This is because actions against the police solicitors work in a complicated, niche area of law. There are many lawyers out there who specialise in either criminal defence or civil litigation. There are few who cover both and also have the necessary background, skills, and attitude to risk to take on the State.
People have to spend time to find a solicitor they can work with, potentially for years. They have to look beyond the promises made on slick websites and make sure the solicitor is the right one for them.
Mr Rutherford knew enough about the law in actions against the police, had the courage to take them on, and the determination to find a specialist solicitor with whom he could work. He has my respect.
For help with your civil actions against the police contact me via the online form below.
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