costs > kettling > motor > case update >>

May 2012 – edition 12

Costs > Kettling > Motor > Case update >>

Amid unsettling news of cuts, asalways police forces must keepcalm and carry on ‘ ‘

Keeping PACE 12_April 2012 XXX_Transit news 1_1007_685.qxd 03/05/2012 14:26

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Keeping PACE 12_April 2012 XXX_Transit news 1_1007_685.qxd 03/05/2012 14:26

This edition of Keeping PACE comes amid unsettling news of cuts of up to28,000 staff, cuts to police pay, and even cuts to police waistlines. Policeforces, as always, must keep calm and carry on. They must exercise theirskill and judgment to mitigate the impact of government cuts, and tomanage the controversial pressure to privatise certain police services, whilstmaintaining the accountability that the public demand.

Also looming is the introduction of the role of the Police Commissionerwhich is causing much controversy, not least directly leading to resignationof Chief Constable of Gloucestershire.

In light of the financial constraints that the police will see in the comingyears, costs are a leading theme in this issue. We address the changes to theessential Part 36 offer of the Civil Procedure Rules, and how they could helppolice authorities win back their costs after litigation, or to nip it in the budbefore it gets off the ground, saving police time and resources. We also offerpragmatic guidance on how insurers can minimise the costs of disclosure,and how they can overcome breaches of disclosure protocol on their part, toavoid costs orders being made against them.

In an age where inquiries are taking up an increasing amount of police timeand resources, we write about the simple, yet effective, steps that policeforces and their staff can take to minimise the risks inherent in inquiries.

Previous editions of this newsletter have addressed the thorny issue ofarresting voluntary attendees at police stations. In April 2010, we looked atthe Northern Irish case of Alexander, Bull, Farrelly and Fox, and in this issuewe look at Hayes v Chief Constable of Merseyside Police. Jason Beer QC,who was counsel for the police in the latter case, details the three clear andpractical pieces of guidance that police can take from the most recentdecision.

As ever, the BLM police team welcome your valuable comment, debate andviews as we head into a difficult and uncertain future. Our authors arealways interested to answer enquiries about their particular topics, andreaders should feel welcome to contact them to discuss any issues they have.

Orla ScanlanPartner

Welcome to the 12thedition of Keeping PACE

Page 2 - Part 36: calm before the storm?

- Costs building?

Page 4 - Police risks at public inquiries

Page 6 - An arresting development

Page 8 - Kettling: necessary force?

Page 9 - Pikestaffs in the CA prove worthy

Page 11 - Reasonable grounds for suspicion?

Page 12 - Speed and liability: emergency vehicles

Page 13 - Biometric data – is it lawful?

Page 15 - Damages and harassment cases

Page 16 - Police, protection and duty of care

Page 18 - Timely case law updates

Editorial

Contents

Berrymans Lace Mawer page 1

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Part 36: calmbefore the storm?

Part 36 offers, seemingly, the mostsimple and elegant of CPR inventions,to afford the parties the opportunity toreasonably settle claims withoutunnecessary litigation, whilstprotecting themselves against futurecosts liabilities. Despite this it hasbeen the cause of a plethora of caselaw that has caused confusion andsparked arguments which have endedin the Court of Appeal. Thereappears to be a quest for certaintythat has created three main areas ofdebate:

What happens when the offer isbeaten by a small amount?

What happens if the offer isincorrectly worded?

Whether Part 36 offers overrideother rules?

The beginning of the issues with Part36 can be traced back to Carver vBAA PLC [2008] EWCA Civ 412. Inthat case the claimant beat thedefendant’s offer by £51. The court

found that the claimant had failed toobtain a judgment that was moreadvantageous than the defendant’soffer in light of the costs liability shehad incurred, and limited her costs tothe date of the defendant’s first offer.

Given the costs claims, defendants arefaced with circumstances like this. Thedecision was criticised by Lord JusticeJackson in his civil costs review asbringing an unwelcome element ofuncertainty to offers. This criticism hasbeen accepted by the Rules Committeeand there is an addition to CPR 36.14,which came into effect on 1 October2011, that reads:

(1A) For the purposes ofparagraph (1), in relation to anymoney claim or money elementof a claim, ‘more advantageous’means better in money terms byany amount, however small, and’at least as advantageous’ shallbe construed accordingly.

The amendment is not retrospectiveso offers made before that date arestill subject to Carver. There are signsthat the court may look favourably atarguments about the degree ofsuccess regardless of whether anyoffer at all was made. In MedwayPCT and Hussain v Marcus [2011]EWCA Civ 750 the court found thatthe defendant should be treated asthe successful party where theclaimant recovered £2,000 against aclaim of £525,000. The defendanthad made no Part 36 offers, yet thedefendant was awarded 75% of theircosts. Unsurprisingly, Lord JusticeJackson dissented.

As well as the challenge of pitchingthe offer correctly so as to gain costsprotection, getting the wording right isjust as important. C v D caused realconcern when it found that an offerstated as being open for 21 dayscould not be a Part 36 offer as it wastime limited. This was despite bothparties arguing that it was a validoffer. The decision was overturned onappeal and a more practicalapproach to offers was adopted, but

in the meantime, certain claimantfirms had great success relying on thedecision at disposal hearings statingthat no effective offer had beenmade.

The court looked at the format ofoffers again in Howell and others vLees-Millais and others [2011] EWCACiv 786 and found that where therewas doubt, offers should be treatedas Part 36 if possible. If the partieshad treated them as Part 36 offers,they were still in force and theybroadly complied with the rules, thencommon sense should be used andthey should be treated with the sameweight.

The quest for certainty has led to ananomaly that is causing problems inlow-value RTA cases.

This was dealt with in the Court ofAppeal cases of Solomon v Cromwelland Oliver v Doughty [2011] EWCACiv 1584 where it was found that if aPart 36 offer is made and acceptedpre-litigation fixed recoverable costsstill apply. Claimants had argued thatPart 36 and the standard basis costsorder it created overrode the costsrules within Part 45 of the CPR, but ina sensible decision the court foundthat this could not be the intent of theRules Committee.

Both claimants and defendants areunderstandably nervous in makingPart 36 offers and the courts haveendorsed the return of Calderbankoffers as a way of attempting to settleclaims without unintentionally fallingfoul of the rules. Whilst this issensible, there are yet to be any firstinstance decisions on this and theremay be some trepidation before thisis commonly taking place.

Whatever new case law awaits, therewill only be a brief period of calm ifLord Justice Jackson’s reforms areenacted in April 2013. This will bringa whole new round of challengeswhich will focus on the financialimpact of offers. Hopefully thecommon sense stance that the court

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has finally adopted will linger and thedelicate balance of a reasonabledamages settlement and reasonablecosts protection can be achieved.

Victoria CargillHead of costs, BLM Manchester

Costs building?

Pre-action disclosure applicationscontinue to burden the insuranceindustry – often dubbed as ‘costsbuilding’ exercises. Both defendantinsurers and solicitors are seeing arise in the number of applicationsbeing made and subsequently a risein the amount of costs being paidinto the hands of the claimant’ssolicitors.

This article aims to demonstrate, byway of example, that even wherethere is a breach of the protocol onthe part of the respondent, this shouldnot automatically entitle the applicantto receive the costs of the applicationand also to set out somestraightforward steps that can betaken in order to avoid anapplication.

Applications for pre-action disclosureare governed by CPR 31.16. Whenconsidering who should pay the costsof the application the court must haveregard to CPR 48.1. The general ruleis that the court will award therespondent its costs of the applicationand of complying with the ordermade on the application (CPR Part48.1(2)). The court can, however,make a different order havingconsidered all the circumstances,such as whether the parties compliedwith the relevant pre-action protocoland the extent to which it wasreasonable to oppose the application.

Three relevant cases that are usefulfrom the respondent’s point of vieware:

1 SES Contracting v UK Coal Plc[2007] where Lord JusticeMoore-Blick considered theimportance of the general ruleand stated that it should only bedeparted from where the conductof the respondent and themanner of his opposition was sounreasonable as to make itappropriate for him to bear theparties’ costs. Although it wasfound that the respondent hadacted unreasonably, that still didnot entitle the applicant torecover costs and theappropriate order was no orderas to costs. In summary, theCourt of Appeal confirmed that abreach on the part of therespondent does notautomatically entitle the court todepart from the normal rule (CPR48.1(2)).

2 Alan Kneale v Barclays Bank Plc,where the district judge held thatit appeared from SES Contractingv UK Coal Plc [2007] that therehad never been a previous casein which a court, howeverunreasonable the respondent’sconduct, had ever gone furtherthan requiring the respondent tobear their own costs.

3 Bermuda International SecuritiesLtd v KPMG [2001] EWCA Civ269, where therespondent soughtan order for costsof complying withany order fordisclosure inany event:CPR 48.1.

By way ofexample,BLM hasrecentlyhandled a number ofpre-action disclosureapplications brought bya firm of solicitorsacting for variouspotential claimants forNoise-Induced Hearing

Loss. These applications werespecifically related to the disclosure ofmedical records and personnel files.

The respondent was in breach of thedisease pre-action protocol, by failingto provide the documents within thespecified 40-day time limit, butsubmitted that it was unable to meetthe deadline due to operationalpressures, staff shortages and volumeof work. In some instances, but notall, the respondent had expressed thedifficulties it was facing to theapplicant, however, it was not able toprovide a definite time for when thedocuments would be ready.

In this instance, the district judge heldthat the respondent had actedunreasonably by opposing theapplications. Whilst he did have somesympathy in respect of the operationalpressures the respondent was under,he took the view that the fact that therespondent had been unable toprovide any sort of time estimate forwhen the documents would be ready,meant that it had accordingly actedunreasonably. This did not, however,



justify moving away from the generalrule and the respondent was notordered to pay the applicant’s costs.The district judge did take the viewthat it was appropriate for there to beno costs order from the date whenthe respondent first objected to theapplications. In addition it wasordered that the applicant pay anamount towards the respondent’scosts of compliance. Thisdemonstrates that the applicant willnot automatically receive the costs ofthe application.

Unfortunately, it does appear thatapplications and/or threats ofapplications will frequently be madeat the first available opportunity,undoubtedly as a cost-buildingexercise. Subsequently as potentialdefendants, there is a need to beproactive in providing the informationand/or documentation requested.Below are general steps that can betaken in order to try to avoid theapplication being made:

1 Acknowledge the applicant’srequest for information/documentation as soon aspossible and agree to providewhat documents you canprovided they are still inexistence.

2 Point out any problems that maybe experienced with regard tothe time frame for provision ofthe documents.

3 Suggest an alternative timeframe and ensure that youcommunicate with the applicantto check whether this time frameremains suitable.

4 With reference to CPR 48.1(2),make it clear that if anapplication for pre-actiondisclosure is issued then you willbe seeking the costs of theapplication plus the costs ofcompliance with disclosure –refer to the necessary case law.

5 Make sure you diarise the

matter; how fast two weeks (oreven months) can go by!

6 Communicate with the otherside. If the time frame cannot becomplied with, then provide anexplanation for delay and see ifmore time can be agreed.

Reflecting on the case law and theabove scenario, it does look likecourts are adhering to the generalrule to some extent. However, eachand every application will be testedon its own merit and whilst thegeneral rule is used as guidance, it isclear that courts are going to takeinto account the particularcircumstances of each case.

From BLM’s experience, you shouldnot just assume that applicants willautomatically get their costs. There isoften scope for challenging theapplications both on their merits andwith regard to costs. If suchchallenges continue to be made thenthere may well be a reduction inapplications.

Lucy ColemanSolicitor

Police risks atpublic inquiries

Public inquiries continue to befashionable. Cynics may say they area good way to park a tricky issuewhile press interest dies down. Butwhether they like it or not, policeforces, officers and staff are likely tobe involved in a wide range ofinquiries investigating issues of publicconcern. The police are usuallyperipheral to the main focus of aninquiry but, whatever level ofinvolvement there may be, there arealways significant risks.

The main purpose of a public inquiryis to provide a relatively informalmeans of investigating why somethinghas gone wrong and how it can be

fixed. Highly sensitive public issuesusually involve some element ofpolicing conduct or policy. Considerthe high profile inquiries over recentyears – Bichard, Climbié, Shipmanand now Leveson. Also consider theinquiries which have had a specificpolice focus such as Lawrence andMorris; it is clear that police forcesmust be prepared to deal with theparticular pressure and demands of apublic inquiry which is likely to be fastmoving and potentially unpredictable.

As public servants, police officers willwish to co-operate fully to achieve theaims of the inquiry. It is someconsolation that civil liability is not onthe agenda of inquiries andapportioning blame does not formpart of the process. However, whilepolice officers are familiar with theformalities of court process andprocedure, the informality of a publicinquiry can be daunting.

While a high-profile inquiry such asLeveson will inevitably attract hugedaily publicity and focus on individualpolice officers and operationalprocedures, the range of types ofinquiry in the public sector means thatmost police involvement in an inquiryis usually outside public knowledge.Inquiries may be calledinformally by publicsector




management in healthcare, socialservices and transport organisations,to name but a few of the agencieswho may well decide to focus onpolicing issues. Those informalinvestigations are often mostprecarious and may leave officers inforces exposed without properrepresentation and consideration ofthe potential pitfalls.

The time and expense to be investedin an inquiry obviously depends uponthe subject matter and the extent ofinvolvement. Anticipating how apublic inquiry may proceed and thetypes of lines of enquiry which may bepursued determines the team torepresent a police force’s interest. Theterms of reference for an inquiryshould hold the key to deciding onthe level of investment.

There may be concern that achairman may stray outside the termsof reference and pursue a differentagenda to that originally envisaged.Keeping tabs on the process of aninquiry and the unravelling evidenceis critical, and the legal team shouldalways be aware of how an inquiry isunfolding. This is usually helped bythe increasing use of websites toensure public awareness and accessto the inquiry evidence and progress.However, where an inquiry is informaland low profile, keeping in touch withprogress depends upon co-operationwith the inquiry team.

It is also worth checking the protocolfor obtaining evidence, callingwitnesses and the timetable forconcluding stages of an inquiry.Making sure that a police force isable to submit evidence which maybe relevant both to its position and toany eventual findings may be critical.Inquiries will fix their own rules ofprocedure, subject to any statutoryguidelines which may apply, and theymay well fix guidelines which couldprevent relevant evidence beingsubmitted. The degree of informalityin an inquiry is often seen as itsstrong point and enables the panel tocarry out investigations suitable to a

particular issue of concern.

At the same time, that informalprocedure may cause difficulties tothe organisation under investigationor caught up in the inquiry terms ofreference. Lawyers who are used todealing with fixed procedure in courtmay find the process difficult tohandle and unpredictable – advicefrom experienced inquiry lawyers isalways a sensible option. The bestadvice is often to make every effort toget to know the inquiry secretarialteam at the earliest opportunity toensure a reliable line ofcommunication and to understandwhat drives the inquiry agenda.

Disclosure of evidence may pose aparticular challenge. Forces need tocarefully consider issues of privilegeand PII and the extent to whichbreaches of confidence and/orsecurity may be caused by an inquiryteam calling upon evidence held by apolice force. Normally, evidence toan inquiry is published. Carefulmanagement not only of the evidenceitself but also of the inquiry’sexpectations is critical to thesuccessful representation of a policeforce.

Creating a team to deal with aninquiry within a police force is usuallythe key to a successful inquiryoutcome. It may be logical to involverepresentatives from thosedepartments or divisions which maybe exposed, always ensuring thatsufficient seniority is available toprovide authority to obtain evidenceand co-operation. Establishingreliable communication links with theforce’s media team, insurers, legaldepartment, HR and a senior leadofficer normally ensures that a team isrepresentative and calls upon therelevant stakeholders who will notonly have an interest in the outcomebut will also be able to provide thelogistical support as the inquiryunfolds.

A public inquiry is not expected toaddress civil liability. However, the

outcome of the inquiry and therecommendations produced in itsfinal report inevitably focus uponactions, conduct or policy and wherethere may have been lapses orfailings which need to be addressed.It is always crucial to respond to the questions raised by the inquiryteam during the course of the inquiryand also to consider the final draftreport to establish whether anyparticular issues need to beaddressed either with the inquiryteam or in terms of PR.

Inevitably, issues raised during theinquiry may impact upon civil claimsor criminal allegations. Once again,the involvement of lawyers and theneed to carefully consider potentialissues will need careful consideration.

Summary

The simple fact is that as publicservants police officers will wish toco-operate fully to identify whereissues may have arisen in serving thepublic. Managing the supply andform of evidence is critical tosuccessful participation in a publicinquiry. Public servants doing theirutmost in their roles deserve to havetheir voice heard and theircontribution made. The inquiryprocedure is intended to help with thisprocess but risks in relation todisclosing evidence need to becarefully addressed. Working closelywith the force’s legal team andinsurers may be critical to thesuccessful outcome.

Jim SherwoodPartner

Jim was instructed to act for the

Commissioner of Police of the Metropolis

in the Morris Inquiry.


An arresting development

Previous editions of KeepingPACE have considered the issueof arresting voluntary attendersat the police station.

Edition 10, April 2010 looked atthe Northern Ireland case ofAlexander, Bull, Farrelly and Fox[2009] NIQB 20 and edition 11,May 2011 considered MarkRichardson v The ChiefConstable of West Midlands[2011] EWHC 773 (QB).

This article looks at Hayes vChief Constable of MerseysidePolice [2011] EWCA Civ 911.

As Richardson is a first instance

judgment and therefore not bindingon any court, because it was decidedin the unusual circumstances wherethe court did not have the arrestingofficer before it to give evidence as tothe reasons why she considered that ithad been necessary to arrest theclaimant, and because it has nowbeen overtaken by binding decisionof the Court of Appeal in Hayes, thisarticle concentrates on Hayes.

The necessity criterion in section 24of the Police and Criminal EvidenceAct 1984

From 1 January 2006 s24 of thePolice and Criminal Evidence Act1984 was amended so that, insummary:

1 the old distinction betweenarrestable and non-arrestable

offences was abolished, and

2 a power of summary arrest inrelation to all offences wascreated, so long as the arrestingofficer had inter alia (amongstother things) reasonable groundsfor believing that the arrest wasnecessary for one or more of aseries of specified reasons. See s110(1) of the SeriousOrganised Crime and Police Act 2005 and article 2(1)(m) of the Serious Organised Crime and Police Act 2005(Commencement No 4 andTransitory Provision) Order 2005(SI 2005 No 3495).

Surprisingly, in the five years after thecommencement of the new regimethere was scant consideration of it by the domestic courts. (That



consideration was limited to someobiter (aside) comments of Underhill J in R (on the application of ‘C’) v (1)Chief Constable of ‘A’ and (2) ‘A’Magistrates’ Court [2006] EWHC2352 (Admin) and the rather fullerdecision of the Divisional Court inNorthern Ireland in Alexander & Ors,Re Judicial Review [2009] NIQB 20.

In the past six months, however, boththe High Court and the Court ofAppeal (CA) have considered the newnecessity criterion in s24 of PACE. On28 March 2011 Slade J handeddown her decision in Richardson vChief Constable of West MidlandsPolice [2011] EWHC 773 (QB). Thenon 29 July 2011 the Court of Appeal(Ward, Richards and Hughes LJJ)handed down its decision in Hayes vChief Constable of Merseyside Police[2011] EWCA Civ 911.

The facts

On 17 June 2008 a complaint wasmade to the police by Mr Mooneythat Mr Hayes had threatened andassaulted him several days previouslydemanding monies owed for thepurchase of cocaine. A decision toarrest Mr Hayes was made on 24June. The police tracked down MrHayes and on 26 June a meeting wasarranged for that evening, which MrHayes voluntarily attended,whereupon he was arrested. MrHayes was detained at the policestation at 22:33 hours; he chose tosee the duty solicitor (who was notavailable immediately) and Mr Hayeswas accordingly placed in a cell. MrMooney was then contacted by thearresting officer by telephone toinform him of the arrest. Mr Mooneysaid that he wanted to retract hiscomplaint. The officer chose to visitMr Mooney in person to check theposition and, if appropriate, take aformal withdrawal statement. MrMooney duly signed a withdrawalstatement (albeit he did not state thatthe allegations were untrue, simplythat he did not wish to pursue them).When this information wascommunicated to the custody officer,

Mr Hayes was released at 00:58hours. Mr Hayes sued the chiefconstable for wrongful arrest andunlawful detention; he lost at firstinstance and appealed to the Courtof Appeal on the grounds, inter alia,that the arrest was not necessary asthe arresting officer had notconsidered all possible alternatives toarrest.

The CA dismissed the appeal, bothon the facts and on the law. In doingso, it gave very valuable guidance tothe police service as to the operationof s24 of PACE. There are, in theauthor’s view, three importantelements to the decision:

1 The court set out the test to beapplied when deciding whetherthe necessity criterion is satisfied.This was the main issue on theappeal, in particular whether thenecessity requirement in s24 ofPACE requires that a policeofficer ‘must actively consider allpossible courses of actionalternative to arrest; he musthave taken into account allrelevant considerations and haveexcluded all irrelevant ones.’ TheCA resoundingly rejected thatproposition as wronglyincorporating elements of publiclaw scrutiny into a decision toarrest. Instead, it held that thereis a two-part test that must besatisfied in relation to thenecessity criterion. First, that theconstable actually believes thatarrest is necessary for anindentified subsection s24(5)reason. Second, that objectivelythat belief was reasonable: see[21], [30] – [35], and [42]. Thecourt rejected the submissionthat there was also arequirement, in order to found alawful arrest, that the arrestingofficer should have activelyconsidered all possible coursesof action alternatives to arrest; tohave taken all relevantconsiderations into account; andto have excluded all irrelevantones: see [18], [30], and [42].

2 The court held that voluntaryattendance at a police station isnot always as effective a form ofinvestigation as interview after anarrest. Moreover, it would not behonest, given s29 of PACE, foran officer to tell a suspect thathe may leave the police stationat any time if he intended toarrest him the moment that hedecided to leave. Further still, itwould not be effective given thatthe suspect would be free tointerrupt questioning the momentthat he found a question or topicdifficult: see [42]. This is aparticularly important part of thedecision – the practice of somedefence solicitors that hademerged after Richardson, ofarguing that no arrest could bemade after an offer of avoluntary interview, is plainly now wrong.

3 The court suggested that whendeciding whether an officer’sbelief that arrest was necessarywas objectively justified, the courtwill ask itself whether thedecision of the arresting officerwas unreasonable in the sensethat no reasonable arrestingofficer could reasonably havereached that conclusion: see [36].

Applying these tests, the court foundfor the chief constable. This is verywelcome news for the police service,preserving for operational officers thefull range of options when confrontedwith a decision to arrest a suspectand retaining the broad discretion asto which option to select that existedunder the previous regime.

Jason BeerBarrister

Jason Beer QC, of 5 Essex Court

Chambers, acted for the Chief Constable

of West Midlands Police in Richardsonand for the Chief Constable of Merseyside

Police in Hayes.



Kettling: necessaryforce?

Public protest was a big issue in 2011and, with the impact of publicspending cuts biting harder in 2012,the issue is likely to become evenmore significant. It is clear that‘kettling’ has been accepted by thecourts despite the strong argumentsthat some people have against it.That said, it will be necessary forpolice forces to be familiar with thecircumstances in which kettling will beappropriate and the rationale for whyit has been accepted by the courts. It has become increasingly commonfor human rights organisations tostress that police have a duty tofacilitate the protest of individuals.Hence, kettling is a highly unpopularmethod, with Liberty arguing that:

the threat of kettling [is]constantly in the minds ofpeaceful protesters, and even aline of police officers is nowsufficient to prompt large-scalemovement away. The prospect ofmass detention for hoursundoubtedly has a chilling effecton the rights of individuals tofreedom of expression andassembly.

When one considers how theunpleasantness of having to wait forseveral hours in a confined space is,this position is understandable. Thisdispleasure will only be heightenedfor people who have no intention tocause any violence so cannotunderstand why they should bedetained.

However, the policehave to consider notjust what a protestorwants, but whether abreach of the peace islikely to occur. This isnot an optional stepfor the police, but isdue to the positiveobligation placed onthe police to prevent a

disturbance, whenever possible. AsLord Bingham recognised in Laporte,R (on the application of) v ChiefConstable of Gloucestershire [2006]UKHL 55:

every constable, and also everycitizen, enjoys the power and issubject to a duty to seek toprevent, by arrest or other actionshort of arrest, any breach of thepeace occurring in his presence,or any breach of the peacewhich (having occurred) is likelyto be renewed, or any breach ofthe peace which is about tooccur.

Thus, kettling can be necessary as itenables the police to comply withtheir own common-law duty.

Furthermore, although Libertydisagrees with kettling (calling forthe police to ‘bringthe practice ofkettling to anend’) it is plainthat some policecontrol overpeople’s movementsis vital for any peaceful society. AsLord Neuberger held in Austin vCommissioner of Police of theMetropolis [2009] 1 AC 564,examples occur on a daily basissuch as:

where there are groups ofsupporters of opposing teams ata football match, the policeroutinely, and obviously properly,ensure that, in order to avoidviolence and mayhem, the twogroups are kept apart; this ofteninvolves confining one or both of

the groupswithin arelatively smallspace for anotinsignificantperiod. Or ifthere is anaccident on amotorway, it iscommon, and

again proper, for the police torequire drivers and passengers toremain in their stationary motorvehicles, often for more than anhour or two. In all such cases,the police would be confiningindividuals for their ownprotection and to preventviolence to people or property.

All sensible people recognise thatcontrol of movement and restraint arenecessary in some circumstances.This of course gives rise to thequestions: when will it be suitable forthe police to use kettling? And whenwill kettling not give rise to a humanrights claim under Article 5 of theEuropean Convention of HumanRights? Due to the decisions ofLaporte and Austin it has been madeclear that crowd-control measuresresorted to for public order andpublic safety reasons had to take

account of therights of theindividuals and theinterests of thecommunity. Suchmeasures comply

with Article 5provided that they are not arbitrary inthat they were resorted to in goodfaith, were proportionate andenforced for no longer than wasreasonably necessary.

Courts have made the position quiteplain now. The relevant factors wereset out in McClure & Anor, R (on theapplication of) v The Commissioner ofPolice of the Metropolis [2012] EWCACiv 12. The factors are:

1 that for a police officer to takesteps lawful at common law toprevent an apprehended breachof the peace the apprehendedbreach must be imminent

2 imminence is not an inflexibleconcept but depends on thecircumstances

3 if steps are to be justified, theymust be necessary, reasonableand proportionate


Kettling (also known as containmentor corralling) is a police tactic forcontrolling large crowds duringdemonstrations or protests. It involvesthe formation of large cordons ofpolice officers who then move tocontain a crowd within a limitedarea.

Liberty is a pressure group whichcampaigns to protect civil libertiesand promote human rights.

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4 depending on the circumstances,steps which include keeping twoor more different groups apartmay be necessary, reasonableand proportionate if acombination of groups isreasonably apprehended to belikely to lead to an imminentbreach of the peace

5 again depending on thecircumstances, where it isnecessary in order to prevent animminent breach of the peace,action may lawfully be takenwhich affects people who are notthemselves going to be activelyinvolved in the breach.

As such, there is a strong rationale forthe kettling of protestors. The policewould be at fault if they did not tryand control crowds. However, therelevant factors concerning whetheran imminent breach of the peace willoccur need to be kept under constantreview, as will whether kettlingprotestors is proportionate in thecircumstances.

Daniel FutterBarrister

Pikestaffs in the CAprove worthy

The case of Pryor v The ChiefConstable of Greater ManchesterPolice [2011] EWCA Civ 749 clarifiesthe requirements of section 165A ofthe Road Traffic Act 1988 and thecircumstances where a police officercan seize a motor vehicle if there is asuggestion of driving withoutadequate insurance.

The case began as a small claim andthe decision in favour of thedefendant was upheld by a recorderon an appeal before beingoverturned in a robust judgment byWard LJ. He described thecircumstances as ‘plain as a pikestaff’and gave the appellant’s counsel adifficult time on appeal, describingthe exchanges between bench andcounsel as ‘like intense crossexamination’ before finding in favourof the claimant’s ‘Mackenzie friend’,the driver of the vehicle (Tony Burton).

This subsection, 165A, wasintroduced to combat uninsureddriving, but has led to difficulties andclaims against police forces forvarious reasons including disgruntledmotorists whose vehicles have beenseized and are threatened with being

crushed. The difficulties on thedatabase have included failures byinsurers to add vehicles’ insurancedetails promptly and inputting errorsthat can lead to the suspicion that noinsurance is held for the vehicle.Often, as here, when police officersring up insurers direct to clarify theposition the information they aregiven may be misleading and canlead to vehicles being seizedincorrectly.

The facts

The circumstances in this case werestraightforward in that Mr Burton hadbeen lent a motor vehicle by hisfriend, the claimant, who hadchecked Mr Burton’s insurancecovered the loan on a third partybasis. He sensibly provided Mr Burtonwith a letter of permission to drive,which he was carrying with him whenstopped by police officers from thedefendant police force.

The officers had stopped Mr Burtonfor a mobile phone offence and MrBurton showed them his owninsurance certificate from Saga thatcovered him to drive any vehicle withthe consent of the owner on a thirdparty basis, and the owner’s letter ofpermission. The officers were notsatisfied. A call by the officers to Sagadid not help matters when they weretold that Mr Burton’s insurance wasonly valid if the other vehicle beingdriven had its own insurance cover.According to the police computerthere was no such cover, likelybecause the claimant had just boughtthe vehicle and the insurers had notregistered the insurance in time afterhis recent purchase, so the officersseized the vehicle in accordance withsection 165A (3).

Section 165A sets out that:

1 Subsection (5) applies if any ofthe following conditions aresatisfied.

2 The first condition is that:



a a constable in uniformrequires, under section 164,a person to produce hislicence and its counterpartfor examination;

b the person fails to producethem, and

c the constable has reasonablegrounds for believing that amotor vehicle is or was beingdriven by the person incontravention of section87(1).

3 The second condition is that:

a a constable in uniformrequires, under section 165,a person to produceevidence that a motor vehicleis not or was not beingdriven in contravention ofsection 143;

b the person fails to producesuch evidence, and

c the constable has reasonablegrounds for believing that thevehicle is or was being sodriven.

4 The third condition is that:

a a constable in uniformrequires, under section 163,a person driving a motorvehicle to stop the vehicle

b the person fails to stop thevehicle, or to stop the vehiclelong enough, for theconstable to make suchlawful enquiries as heconsiders appropriate, and

c the constable has reasonablegrounds for believing that thevehicle is or was being drivenin contravention of section87(1) or 143.

5 Where this subsection applies,the constable may:

a seize the vehicle inaccordance with subsections(6) and (7) and remove it

b enter, for the purpose ofexercising a power fallingwithin paragraph (a), anypremises (other than aprivate dwelling house) onwhich he has reasonablegrounds for believing thevehicle to be

c use reasonable force, ifnecessary, in the exercise ofany power conferred byparagraph (a) or (b).

6 Before seizing the motor vehicle,the constable must warn theperson by whom it appears thatthe vehicle is or was being drivenin contravention of section 87(1)or 143 that he will seize it:

a in a section 87(1) case, if theperson does not produce hislicence and its counterpartimmediately

b in a section 143 case, if theperson does not provide himimmediately with evidencethat the vehicle is not or wasnot being driven incontravention of that section.

The constable is not required to givesuch a warning if the circumstancesmake it impracticable for him to do so.

7 If the constable is unable to seizethe vehicle immediately becausethe person driving the vehiclehas failed to stop as requestedor has driven off, he may seize itat any time within the period of24 hours beginning with the timeat which the condition inquestion is first satisfied.

Ward LJ suggested, making referenceto pikestaffs being plain and intypically robust terms, that there wasno question but that the appealshould be allowed and damagesshould be payable by the defendant

for conversion of the vehicle becausethe conditions in section 165 A werenot satisfied. They decided that Sagahad not been correct in its suggestionthat Mr Burton could drive the vehicleonly if the owner had insurance forthe vehicle. The Saga certificate andthe letter demonstrated that thevehicle was not being driven incontravention of section 143 of theRoad Traffic Act 1988 at all as therelevant certificate did insure himagainst third party risks despite whatSaga had mentioned on the phone.The officers were not helped by thereasonable grounds provision andwere taking a risk with the seizure,which proved unjustified.

If Saga was proved correct and MrBurton had not been insured despitethe express words of the certificateand the letter of consent, then theseizure would have been justified.However, as happened here, Sagawas wrong and the driver was insuredunder the policy under which theinsurance certificate was issued. Theappeal court found that the seizurewas unlawful and damages would bepayable.

Police officers need to exercise care inaccepting what insurers tell themduring a roadside enquiry when thedocuments produced point to lawfulpossession and insurance for thevehicle even if the database islacking. The computer system cansuffer from delays and inputting errorsthat lead to confusion being createdthat has the potential to bemisleading.



Whilst this legislation is helpful inameliorating the curse of uninsureddriving, officers need to think twicebefore seizing a vehicle if there aredoubts in a situation such as this.Rather, enquiries should be madeshort of seizure. That would haveprevented the situation and the waythat this case developed.

The appeal court was probably leftwith little choice than to find for theappellant, but Ward LJ did little todisguise his views on this police-related appeal. It was left to Stanley-Burton LJ to provide a more balancedapproach which reached the sameconclusion with some reluctance.

David HillPartner

Reasonable grounds for suspicion?

Alanov v The Chief Constable ofSussex Police [2012] EWCA Civ 234

It has long been recognised that thethreshold for the existence ofreasonable grounds to suspect that a

person is guilty of an offence undersection 24 of the Police and CriminalEvidence Act 1984 is a low one. Theamount of material that is known toan arresting officer in order to foundreasonable grounds may be small,even sparse. It is ‘a state ofconjecture or surmise where proof islacking: “I suspect but I cannotprove”. Suspicion arises at or nearthe starting point of an investigationof which the obtaining of proof is atthe end’ (Hussein v Chong Fook Kam[1970] AC 942). Indeed BLM hassuccessfully defended many claims onthis basis. That said, recently Alanovchallenges this view to some extentand provides a reminder that somecircumstances which may lead tosuspicion, may not pass the lowthreshold for reasonable suspicion.

In Alanov the Court of Appeal (CA)considered whether a judge had beencorrect to conclude that an officer, PCBaker, had reasonable grounds tosuspect that Mr Alanov was guilty ofrape. Mr Alanov was arrested by PCBaker on 20 June 2005.

The circumstances

On the evening of 19 June 2005 thepolice received a report that awoman had been raped. The policeinterviewed the victim and, the nextday, carried out house to houseenquiries. PC Baker and anothermale officer attended a block of fourflats, one of which was Mr Alanov’sflat. They spoke to Mr Alanov’spartner who said that her ‘husband’was not in the flat. She did not wantto allow the male officers into the flatas her ‘husband’ was away andbecause it was against her religion toallow males into the flat when shewas alone. PC Baker suggested that afemale officer be summoned althoughhe was suspicious about the partner’sreasons for not letting them into theflat. A female officer arrived and wasinvited into the flat at which point MrAlanov appeared naked and shoutedat her to leave. PC Baker entered theflat and found Mr Alanov in thebathroom washing his genital area.

PC Baker told Mr Alanov that he wasmaking enquiries about a serioussexual assault to which Mr Alanovreplied ‘there has been no rape, youare making it up, how long have youbeen following …’ Mr Alanov wasargumentative and agitated andcontinued to wash himself. He refusedto get dressed so that the policecould speak to him. PC Bakerarrested Mr Alanov on suspicion ofrape.

Findings

Mr Alanov’s arrest took place beforethe Serious Organised Crime andPolice Act 2005 came into force. Atthe time the power of an officer tomake an arrest without a warrantcame from section 24(6) of the Policeand Criminal Evidence Act 1984(PACE) which provided that:

Where a constable hasreasonable grounds forsuspecting that an arrestableoffence has been committed hemay arrest without a warrantanyone whom he has reasonablegrounds for suspecting to beguilty of the offence.

It is important to note that the currentpower to arrest without a warrant (stillcontained within section 24 of PACE)also requires that there be reasonablegrounds to suspect that a person isguilty of an offence, so the decision inAlanov is relevant to the law as itcurrently stands.

The trial judge had found that PCBaker did subjectively suspect that MrAlanov was guilty of an offence, andthis finding was not challenged onappeal. The only question for the CAtherefore was whether objectivelythere were reasonable grounds forthat suspicion. The trial judge hadconcluded that there were suchreasonable grounds. He said:

Here was someone whoappeared to be being shelteredfrom the police and whobehaved in a highly unusual way


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when the police arrived. We nowknow that he wasn’t the rapistand also that he has an unusualpersonality and somewhatobsessive attitude to personalhygiene but the officers were notto know this at the time.

Lord Justice (LJ) Aikens disagreed withthis assessment. He instead found thatthe information available to PC Bakerdid not pass even the low thresholdfor establishing reasonable groundsfor suspicion, since none of theinformation would have linked MrAlanov to the offence in any way.Indeed, LJ Aikens went on to say thatPC Baker should have questioned MrAlanov to a degree, such as askingfor his name and where he had beenthe previous evening.

Comment

It is arguable that the judgment of LJAikens is a touch unfair, althoughcertainly understandable. Inparticular, LJ Aikens accepted thatsome of the information available toPC Baker might have led to suspicion(namely that Mr Alanov’s partner hadlied about his presence and that MrAlanov denied that there had beenany rape), but LJ Aikens found thatthis behaviour was capable ofreasonable explanation, so thereforethere could not have been reasonablesuspicion. It is submitted that this is arequirement too far, as is therequirement that PC Baker shouldhave asked further questions. Surelyan interview under caution was theproper forum for questions to beasked and for Mr Alanov to providean explanation.

Orla ScanlanPartner

Speed and liability:emergency vehicles

Section 87 of the Road TrafficRegulations Act 1984 provides that:

no statutory provisions imposinga speed limit on motor vehiclesshall apply to any vehicle on anoccasion when it is being usedfor … police purposes, if theobservance of that provisionwould be likely to hinder the useof the vehicle for the purpose forwhich it is being used on thatoccasion.

The issue of speed and the liability ofpolice drivers involved in road trafficcollisions with pedestrians duringemergency calls were considered bythe Court of Appeal in Rebecca Smith v The Chief Constable ofNottinghamshire Police [2012] EWCACiv 161.

The facts

The claimant was seriously injured bya police vehicle, which wasresponding to an emergency call, asshe attempted to cross Canal Street at22.10 in the centre of Nottingham. Atfirst instance, Mr Recorder Herbertheld the claimant 75% responsible forthe accident.

Canal Street is divided into fourlanes, which at night is sufficientlywell lit to allow for pedestrians in theroad to be seen.

The police vehicle was driven by agrade 1 advanced driver, who wasauthorised to drive high-poweredpolice vehicles. He also had a cleandriving record. As the evidencesuggested that the police sirens andflashing blue lights were activated, thedecision of Mr Recorder Herbert wasbased on what he considered to bethe excessive speed of the policedriver (found to be 45 to 50 mph)and the claimant’s ‘reckless

disregard’ for her own safety as shefailed to notice the flashing bluelights, or hear the sirens as the policecar approached.

The claimant appealed the decisionof Mr Recorder Herbert on the basisthat her contributory negligence wasassessed too high; the defendantappealed on the basis that thereshould not have been a finding ofprimary liability because the claimantstepped out into the path of the drivergiving him no opportunity to avoid acollision.

Court of Appeal

The CA made reference to the policeresponse and driving policy, whichdetailed the importance of safety. AsMr Recorder Herbert did not makeany reference to this document in hisjudgment, he was wrong, as thepolicy gave explicit guidance topolice drivers.

The CA further held that as the speedof the police vehicle was between 45and 50 mph when it approached the


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junction, this was excessive. This wasparticularly relevant because theevidence from the accidentreconstruction experts agreed that at40 mph the collision would havebeen avoided. Therefore, thedefendant’s appeal was dismissed.

It was further held that as the driverdid not see the claimant until she wasin the second lane of Canal Street, hefailed to keep a proper lookout andought to have seen her before he did.

Although it was accepted that theclaimant was partly responsible forcrossing the road when it was unsafe,there was no justification for findingthat she showed a ‘reckless disregard’for her own safety.

The CA held that the major cause ofthe claimant’s injury was the speed ofthe police car which effectively‘became a dangerous weapon’.Therefore taking into account theclaimant’s failure to hear the policesirens or notice the flashing bluelights, the CA assessed the claimant’sliability at a third.

Scutts v Keyes [2001] EWCA Civ 715distinguished

In Scutts, the police driver was notheld liable when he was involved in acollision with a pedestrian. That casewas distinguished from Smith andshould not be regarded as legalprecedent for claims where there is acollision between a police vehicle onan emergency call and a pedestrian.This is because the duty of the policedriver to take care remains‘undiminished’, and each case is tobe considered on its own specificfacts.

Conclusion

The decision in Smith reinforces thatof Gaynor v Allen [1959] 2 All ER644, in which it was held that policedrivers should not be given anyspecial treatment, and should bejudged in the same way as othercivilian drivers. Therefore, whendriving even in emergency situations,police officers should proceed in sucha way as to not expose the public toundue danger. This is thefundamental consideration to betaken into account before taking suchcases to trial.

As the driver in Smith did not see theclaimant until she was in the secondlane of a four-lane carriageway, thisopened him up to criticism, especiallywhen his speed exceeded 45 mph.Therefore, the assessment of the CAwas correct on the facts.

Ian WalkerAssociate

Biometric data –is it lawful?

In advance of the 2012 OlympicGames, the biometric data of 10,000athletes is being captured by UKofficials in an attempt to prevent thegames from being targeted by aterrorist attack.

The athletes competing in theOlympics this summer are unlikely tobe distracted from their ambitions byissues of privacy arising from theretention of their biometrics. At leastnot in the short term. The samecannot be said, however, forindividuals who have been suspected,but not convicted, of a crime. Suchindividuals often argue that theindefinite retention of their biometricdata interferes with their right torespect for a private life pursuant tothe European Convention on HumanRights (ECHR).

In the context of policing, the timelimit for the retention of data or anyprocess to regulate its destruction isdealt with by the ACPO (Associationof Chief Police Officers) guidelines of2006. These guidelines specificallygovern the retention of fingerprintsand DNA information held on thePolice National Computer and theNDNAD (National DNA Database).The guidelines state that only in‘exceptional’ cases will a request forthe removal of DNA and fingerprintsbe granted by a chief officer of therelevant force.

By their very nature, exceptional casesare likely to be rare. In accordancewith the guidelines, records shouldonly be removed where one of thefollowing has been established:

1 A recordable offence no longerexists.

2 Any part of the process fromarrest through to detention wasfound to be unlawful.

In 2008, S & Marper v UK [2008]



ECHR 1581 was determined by theEuropean Court of Human Rights. Atthe age of 11, Mr S was arrested andcharged with attempted robbery. Hisfingerprints and DNA samples weretaken. He was subsequentlyacquitted. At the age of 38, MrMarper was arrested and chargedwith harassment of his partner. Hisfingerprints and DNA samples weretaken. The case against him wasdiscontinued when his partner nolonger wished to press charges. BothMr S and Mr Marper asked for theirfingerprints and DNA samples to bedestroyed; the police refused. MrMarper and Mr S applied for judicialreview of these decisions.

The Administrative Court rejected theapplication, and both the Court ofAppeal and the House of Lordsdismissed the appeal. The ECHR,however, took a different view. It heldthat retention of biometric data in theapplicants’ cases wasdisproportionate (because it was nottime limited) and indiscriminate(because it did not account for theseriousness of the crime that hadallegedly been committed by theapplicants). It was further held thatthere had been a violation of Article8 of the convention, the right torespect for private and family life. Thejudgment states as follows:

the blanket and indiscriminatenature of the powers of retentionof fingerprints, cellular samplesand DNA profiles of personssuspected but not convicted ofoffences … fails to strike a fairbalance between the competingpublic and private interests.

In response to the ECHR decision inMarper, substantive changes to thelaw relating to the retention,destruction and use of fingerprintsand samples were introduced by theCrime and Security Act 2010.Pursuant to the Act, retention periodsfor the various categories of data varydepending on a number of factorsincluding:

the age of the individualconcerned

the seriousness of the offence oralleged offence

whether the individual has beenconvicted and, if so, whether it isa first conviction.

Although the Act received RoyalAssent on 8 April 2010, the relevantprovisions (14, 22 and 23) have notyet been brought into effect.

Three years after the ECHR decisionin Marper, the Supreme Court was

asked to consider the indefiniteretention of biometric data in GC & Cv Commissioner of Police of theMetropolis (2011) UKSC 21. Theappellants argued that the retentionof their data was incompatible withtheir Article 8 rights as determined inMarper.

GC had been arrested on suspicionof common assault on his girlfriend,which he denied. A DNA sample,fingerprints and photographs weretaken after his arrest. He wasreleased without charge and laterinformed that no further action wouldbe taken. C was arrested onsuspicion of rape, harassment andfraud. His fingerprints and a DNAsample were taken. C denied theallegations. He was charged withrape but acquitted at trial when theprosecution offered no evidence. Inresponse to requests that theirbiometric data be destroyed, thecommissioner had informed theappellants that their cases were notbeing treated as ‘exceptional’ withinthe meaning of the ACPO guidelines.

The Supreme Court granted adeclaration that the present ACPOguidelines are unlawful because ‘asclearly demonstrated by Marper, theyare incompatible with the ECHR’. Thecourt also considered, however, that itwould not be appropriate to make anorder for the destruction of datawhich could possibly be lawfullyretained under a new scheme, namelythe Protection of Freedoms Bill that iscurrently being considered byParliament.

Part 1 of the draft bill is concernedwith the Regulation of Biometric Data.If passed, it will introduce a newframework for the retention offingerprints and DNA data, along thesame lines as the Scottish system.That system permits the retention ofdata for no more than three years ifthe person is suspected (but notconvicted) of certain sexual or violentoffences, and permits an applicationto be made to a chief constable foran extension of that period.


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The Protection of Freedoms Bill isunlikely to receive Royal Assent untilat least the summer. Theimplementation of the bill may notunduly concern those athletescompeting in the Olympic Games,but it may prompt claims against thepolice by individuals whose biometricsare stored on the NDNAD but whohave not been convicted of a crime.

In the meantime, it is unlikely that anyclaims made in relation to theretention of biometric data will beconsidered by the AdministrativeCourt until such time as the bill hascome into force.

Rachel DonoghueSolicitor

The progress of the bill through

Parliament can be tracked via

www.services.parliament.uk/bills/2010-11/protectionoffreedoms.html.

Damages and harassment cases

A number of cases have providedpointers for damages in harassmentclaims. Before any such damages canbe awarded there are a number ofhurdles to overcome.

The tort of harassment was created bythe Protection from Harassment Act1997 (PHA). The PHA prohibits aperson from pursuing a course ofconduct which he knows, or ought toknow, amounts to harassment ofanother. A breach of the PHA givesrise to:

1 a civil claim for damages (foranxiety and financial loss causedby the harassment)

2 renders the harasser guilty of acriminal offence.

The PHA specifically providesdamages for anxiety without arecognised psychiatric injury. Thisarticle considers how courts haveapproached the assessment ofdamages under the PHA.

Awards under the PHA

The PHA does not provide guidanceon how an award for anxiety shouldbe calculated. The recorder in Singh vSingh Bhakar [2007] 1 FLR 880observed that no reported cases onthe correct approach to damagesunder the PHA could be found. Hedecided to look at psychiatric injuryawards and at the JSB Guidelines.The recorder considered thatdamages for anxiety should beawarded on a compensatory ratherthan a punitive basis. The final awardwas £35,000. However, the conductin Singh was particularly traumaticand took place within a family setting.This award even included a sum tocover aggravated damages. Therecorder also noted that the damagesshould reflect the ‘four months of hell… lived through while the conductwas continuing’ and that the conductwas deliberate and malevolent. As therecorder put it:

She was utterly miserable andwretched during those fourmonths, and was suffering fromwhat was for her anincomprehensible personalattack.

The award in Singh appearsparticularly high. In Conn vSunderland City Council [2007]EWCA Civ 1492, where theharassment was verbal – a threat tobreak windows and a threat ofviolence – the judge at first instanceawarded damages of £2,000, thoughthe Court of Appeal (CA) dismissedthe claim because the claimant couldonly show one occasion where theconduct to which he was subjected bya fellow employee was sufficient tojustify a criminal sanction.

In Martins v Choudhary [2007] EWCA

Civ 1379, the CA upheld an awardof £10,000 for anxiety. The court alsoawarded £12,500 for personal injury(an anxiety disorder). In Martins, thecourse of conduct consisted ofverbally abusive and racist behaviourand a road traffic accident prior towhich the defendant had expressedhis intention to run the claimant offthe road. The CA considered the£10,000 award on the generous sidebut permissible, given the effect of theracial abuse on the claimant and theextent and gravity of his upset,frustration, worry, mental distress,fear, grief, anguish and humiliation.

Vento guidelines

In Martins, the CA considered Vento vChief Constable of West Yorkshire[2002] EWCA Civ 1871, a sexdiscrimination case which gaveguidance assessing damages forinjury to feelings (broadlycorresponding to anxiety under thePHA). Mummery LJ urged judges tokeep the level of damages for injuryto feelings broadly in line with awardsin personal injury cases. The CA setout three brackets for awards forinjury to feelings:

1 The top band should normally bebetween £15,000 and £25,000.This is for the most serious casessuch as where there has been alengthy campaign of harassment.Awards above £25,000 will beexceptional.

2 The middle band is between£5,000 and £15,000. This is forserious cases which do not merit


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an award in the highest band.

3 Awards of between £500 and£5,000 are appropriate for lessserious cases. Awards below£500 should be avoided.

In Vento, the CA gave separateawards for:

1 psychiatric harm

2 injury to feelings

3 aggravated damages.

Vento and Martins were considered bythe High Court in Cross v Relan[2009] EWHC where the appropriatedamages award for anxiety caused bya three-month campaign ofharassment by a former employee ofa city asset management companywas £10,000. In Cross HHJ Moloneynoted that ‘damages for harassmentare awarded primarily for anxiety andinjury to feelings’; HHJ Moloneyconsidered that specific lossesattracting compensation ‘such asinjury to health or direct financiallosses’ were also included.

In S & D Property Investments Ltd vNisbet & French [2009] EWHC 1726(Ch), damages for anxiety wereassessed at £7,000. Nicol Jconsidered that:

If one sets aside cases wherepsychiatric damage hasoccurred, the approach of thecourts in other areas wherecompensation can be awardedfor anxiety and distress, showsthat damages are not likely to beparticularly high.

The Vento guidance was consideredby the Employment Appeal Tribunal inDa’Bell v NSPCC UKEAT/0227/09/CEA in September 2009 (in aclaim concerning disabilitydiscrimination). HHJ McMullenconsidered that the figures in theVento brackets set out in 2002needed updating. The new guidelinebrackets for damages for injury to

feelings, applicable from 28September 2009, should be:

1 £18,000 to £30,000

2 £6,000 to £18,000

3 Up to £6,000.

In Jones & Lovegrove v Ruth & Ruth[2011] EWCA Civ 804, the CA againconsidered Vento and Martins. Theaward for anxiety was £6,000. Thecourt also confirmed that the PHAallowed awards for psychiatric injury –£28,750 – was appropriate. Theclaimant was also entitled to loss ofearnings of £115,000.

Conclusion

The PHA allows awards for anxiety,personal injury (usually psychiatricinjury) and financial losses resultingfrom harassment. Unlike common lawstress claims, the claimant need notprove that injury was foreseeable.However, the apparent advantagesfor a claimant of bringing a claimunder the PHA (ie, no need to proveforeseeability; damages not only forpersonal injury but also for anxiety)are arguably offset by the hurdles thatmust be cleared to prove actionableharassment. There must be a courseof conduct (harassment on at leasttwo occasions), and the conduct mustbe serious. As the judge in Mitton &others v Benefield & another [2011]EWHC 2098 (QB) said, the PHA: ‘isnot designed to interfere with theordinary give and take of everydaylife’. To qualify as harassment, theconduct must be grave enough tosustain criminal liability.

Malcolm KeenLawyer

Police, protection and duty of care

A police officer will typicallyencounter various hazards during thecourse of his or her duties. Andinevitably the public has certainperceptions as to what level ofresponsibility that officer has inprotecting the public from any suchhazard. It is therefore important thatpolice officers understand the extentof their duty of care to the public andthe limits of such a duty. Robusttraining on health and safety issueswill of course help in officers’understanding and should not beoverlooked. This article considers theextent of an officer’s duty of carewhen dealing with hazards.

Police officers generally have a dutyto keep law and order and to protectlife and property. That said, there is ageneral rule that there is no duty toprevent a third party from causingdamage to another (Smith vLittlewoods Organisation Ltd [1987]AC 241). Further, it has been wellestablished (since Hill v ChiefConstable of West Yorkshire (1989)AC 53) that courts will not readilyimpose duties of care on officerswhen investigating crime, and it isarguable that courts are even morereluctant to impose such a duty whenan officer is involved in otheractivities. For example, clearly anofficer is under no duty to spotdangers, such as a tripping hazard onthe pavement, when on patrol.

Much of the case law in this area isconcerned with officers taking control,or indeed failing to take control oftraffic and road safety in emergencysituations. This is of course notuncommon, and many officers willoften be required to take control ofand manage road-safety situations.

Clough v Bussan [1990] 1 All ER 431and Ancell v McDermott [1993] 4 AllER 435 deal with this issue. Broadly,


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both cases state that no duty is owedby an officer to individuals in respectof dangers created by others, even ifan officer is aware of the danger, orought to have been. Essentially, inthese circumstances, claimants willface difficulties in establishing anydegree of proximity betweenthemselves and the police.

In Clough v Bussan the claimant wasinvolved in a car accident caused bymalfunctioning traffic lights. The thirdparty police authority had beeninformed of the problem before theaccident. The court held that thepolice authority’s duty to protect lifeand property did not extend to everyindividual using the junction after thetraffic light failure. To give rise toliability there must have been arelationship between the police andthe claimant such as to give rise to aduty of care.

In Ancell v McDermott officers hadknowledge of a diesel oil spillage.The oil later caused a car accidentwhich caused injury to the claimantand the death of the claimant’s wife.The court again held that the officershad no duty to warn the public of thehazard of which they wrer aware butwhich they did not create. Such aduty would impose upon the policepotential liability of almost unlimitedscope. If such a duty existed it wouldhamper the performance of ordinarypolice officers.

The question remains then as towhether in such circumstances a dutyof care will ever exist. In the Scottishcase of James Gibson v ChiefConstable of Strathclyde Police [1999]SC 420 a bridge collapsed afterheavy rainfall. The officers whoattended the scene set out a numberof cones cordoning off the north sideof the bridge. They recommendedthat officers from a station serving thesouth end do likewise. The officersthen left the scene without confirmingthat the south side had beencordoned off. Shortly afterwards, thecar in which the claimant wastravelling drove through the south end

of the bridge and ended up in theriver. The driver and anotherpassenger were killed as a result.

The Scottish court considered whetherthere existed between the officers anda passenger in the vehicle arelationship of sufficient proximity tofound a duty of care. The court heldthat once an officer has taken chargeof a road traffic situation which,without control by him, prevents agrave and immediate risk of death orserious injury to road users, he shouldbe regarded as being in such arelationship with such road users asto satisfy the requisite element ofproximity.

The court in Gibson gave theexample of officers chancing upon anunlighted obstruction at night, takingappropriate measures to warnoncoming traffic of the hazard, thencarelessly choosing to withdraw allwarnings, thereby leaving road usersonce again exposed to the hazard.The court found it unattractive thatsaid officers would not be in breachof any duty of care to any road user.

Clough v Bussan and Ancell vMcDermott, although not binding onthe Scottish court in any event, weredistinguished on the basis that thepolice in those cases, althoughreceiving certain information ormaking certain observations, had notin any sense taken control of therelevant hazard. Further, the court didnot agree with the public policy

arguments that were made in Ancelland said that the potential gravity ofthe situation meant that it was fair,just and reasonable to impose a dutyupon the police.

As Gibson is a Scottish case it istherefore only persuasive in theEnglish courts. Nevertheless, it iscertainly now arguable that a duty ofcare might exist where the policehave exercised some degree ofcontrol over a situation. For example,if the police were to erect a cordonaround a road traffic accident itmight be said that the police will haveautomatically assumed responsibilityfor any person who enters thatcordon such that, if that person wereto trip over accident debris, the policemay well be liable for that accidentand any injuries sustained.

Conclusion

Police forces should of coursecontinue to resist any attempts byclaimants to extend the duties ofpolice officers. However, in themeantime, forces would be welladvised to ensure that officers areaware of the extent of theirresponsibilities, and in particular theduty of care to certain individuals,that they may be taking on if andwhen they take control of any hazardthey might encounter.

Daniel WestSolicitor



1. Petula Fitzpatrick (2), BruceWilkey (3), Thomas, Boyd &White (A Firm) v CommissionerOf Police Of The Metropolis[2012] EWHC 12 (Admin)

An officer was responsible forinvestigating the finances of acriminal client of Thomas, Boyd &White (TBW). The officer obtainedevidence that this client wastransferring money to another via thecreation of a power of attorney, incontravention of a restraint order.The officer obtained intelligence thatFitzpatrick, a solicitor at TBW, wasfacilitating the circumvention of therestraining order, and therefore shewas arrested on suspicion of money-laundering offences. A searchwarrant was executed at TBW’spremises and Wilkey, anothersolicitor, was also arrested onsuspicion of money-launderingoffences.

The court determined (amongst otherthings) whether the arresting officer

actually and/or reasonably believedthat the arrests were necessary toallow the prompt investigation of thealleged offences. It was held that theofficer had actually believed that anarrest was necessary to allow theprompt and effective investigation ofan offence, and that belief wasreasonably held and not motivatedby any irrelevant considerations.

Comment

The court agreed with theCommissioner’s submissions that foran arrest to be lawful it must beshown that: i) an officer actuallybelieves that an arrest is necessaryfor a reason set out in s24(5) of thePolice and Criminal Evidence Act1984, and ii) that objectively thatbelief is reasonable.

This was the two-stage testsuccessfully contended for in Hayes vChief Constable of Merseyside Police[2011] EWCA Civ 911 by JasonBeer QC (see page 6). Theclaimants in Fitzpatrick unsuccessfullyargued that there was a third stagewhereby they could show that thedecision to arrest was vitiated by apublic law error. The court disagreedbut, in any event, held that theofficer’s decision to arrest was notvitiated by any such error.

2. Kelly Minio-Paluello vCommissioner of Police of TheMetropolis [2011] EWHC

3411 (QB)

The claimant was a protesterinvolved in a pro-Palestiniandemonstration on Friday 9 January2009 in the vicinity of the IsraeliEmbassy in Kensington High Street,London. The claimant was there withher friend, Taimour Lay.

The protesters were on the pavementand some of them, including theclaimant and Mr Lay, attempted toforce their way past a line of policeofficers in order to join a group ofcyclists who were protesting in the


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road. Mr Lay was warned by thepolice that he would be arrested forobstructing the highway and toprevent a breach of the peace if hedid not stay on the pavement.

Mr Lay then went into the road andwas lawfully arrested. The claimanttried to frustrate the arrest by holdingonto Mr Lay and, as a result, theyand the officers fell to the ground.An officer, PC Pelham, then usedforce to lock the claimant’s armbehind her back. He then lifted herup and, in the process, she sustaineda fracture to her upper arm.

The police said that the force usedby PC Pelham was necessary inorder to complete the arrest of MrLay (section 117 of the Police andCriminal Evidence Act 1984) and toprevent a criminal offence beingcommitted (section 3 of the CriminalLaw Act 1967) and in any event theforce used was in self-defenceand/or in defence of fellow officers.

The court disagreed and held thatthe claimant was entitled todamages for assault, and generaldamages were awarded in the sumof £11,500.

Comment

In this case, the court appears tohave accepted that some forcewould have been justified. However,the method used by the officer was

dangerous and neither reasonablenor proportionate. The court wasguided by both the medicalevidence, which said that the forceused must have been ‘considerable’in order to cause such an injury, andalso the evidence of an officerresponsible for officer safety training,who said that officers are not taughtto use the arm-lock technique whena suspect is on the ground.

3. (1) Stephen Burgin (2)Robert Purcell (Claimants) v(1) Commissioner of Police forthe Metropolis (2) ChiefConstable of Leicestershire(Defendants) & (1) Alstom UKHoldings Ltd (2) Serious FraudOffice (Interested Parties)[2011] EWHC 1835 (Admin)

The Serious Fraud Office (SFO)conducted an investigation intoseveral individuals and corporateentities within the Alstom group ofcompanies. Alstom UK wasconnected with £81 million in bribesallegedly paid in securing overseascontracts. Searches were conductedin March 2010 at the homeaddresses of the claimants, whowere two directors of Alstom UK,and the claimants were arrested. Theclaimants sought permission to apply

for judicial review to challenge thesearches and their arrests. Theclaimants’ submissions included interalia that there was no proper basisto suspect them personally ofwrongdoing and that the arrestingofficers had no proper grounds forsuspecting that the claimants hadcommitted the alleged offences.

The court refused permission on allgrounds. In particular, the court saidthat it was clear from the informationbefore the district judge that thebasis for the suspicion was notmerely the claimants’ associationwith the companies. A company, ofwhich the claimants were directors,had played a central role in unlawfulactivities.

Further, given the contents of thebriefing given by the SFO to thearresting officers, it was notreasonably arguable that the officersdid not actually suspect that theclaimants had committed the allegedoffences, or that they had noreasonable grounds for thatsuspicion.

Comment

Among other things this casereaffirms the low threshold forsuspicion.



4. R v Peter Craig Hitchens[2011] EWCA Crim 1626

The defendant, H, moved in with hispartner, Y. Y’s ex-boyfriend objectedto the arrangement. This ex-boyfriend threatened H and on oneoccasion he gained access to the flatand attempted to fight H. The ex-boyfriend came to the flat again andY wanted to let him in. H urged hernot to let him in, and slapped heracross the face when she did notlisten to him. H was tried forcommon assault. In his defence Hclaimed that he had usedreasonable force under section 3 ofthe Criminal Law Act 1967 toprevent the commission of a crime,since if the ex-boyfriend had enteredthe flat there might have been analtercation between them. He alsorelied on the defences of necessityand self-defence.

The judge said that the possibilitythat the ex-boyfriend might commit acrime was not sufficient to justify Hslapping her. The judge directed thatthe defences of necessity, self-defence and the use of reasonableforce were not available to him. Hwas convicted and he appealed.

The Court of Appeal held that therewas no error in the judgewithdrawing the defence of necessityfrom the jury. The defence ofnecessity was recognised only in verylimited circumstances. However, self-defence and the use of reasonableforce in the prevention of crime wereboth capable of extending to the useof force against an innocent thirdparty to prevent a crime beingcommitted by someone else. Thejudge had been wrong to withdrawthese defences from the jury.However, the conviction was safe inany event because a reasonable jury,properly directed, with a suitableemphasis on the question ofremoteness, would not haveacquitted H.

Comment

There is no material differencebetween self-defence and the use ofreasonable force in the prevention ofcrime. It is clear from the decision inHitchens that both defences areavailable even if the force is usedagainst an innocent third party ratherthan the party who is about tocommit a crime. The court was,however, clear that the facts capableof giving rise to such a defencewould only rarely be encountered.An example given by the court wasof a police constable bundling apasser-by out of the way to get at asuspected offender.

The court stressed that the questionof remoteness should also beconsidered, ie, the likelihood of acrime being committed if force is notused. In Hitchens there was nocertainty that any crime would becommitted.

5. R (on the application ofReda) v Director of PublicProsecutions [2011] EWHC1550 (Admin)

The claimant walked past an emptypolice van with three of his friendsand shouted ‘f*ck the police’. Anearby police officer overheard theclaimant and arrested him for anoffence under section 5 of the PublicOrder Act 1986, ie, usingthreatening, abusive or insultingwords or behaviour within thehearing or sight of a person likely tobe caused harassment, alarm ordistress. En route to the policestation, the claimant kicked theofficer in the leg and was thereforearrested for assaulting a policeofficer in the execution of his duty.

The officer accepted that he did notsee other members of the publicnearby and that he had not beencaused distress by the claimant’swords.

The claimant was found not guilty ofan offence under section 5 but guiltyof assaulting a police officer in theexecution of his duty. The CrownCourt upheld the claimant’sconviction. The claimant appealedagainst the decision of the CrownCourt on the basis that he could nothave been guilty of assaulting apolice officer in the execution of hisduty as, since the police did nothave reasonable grounds to suspectthat the claimant had committed anoffence under section 5, the officerhad not been acting in the course ofhis duty.

The court held that there had beenreasonable grounds to suspect thatan offence had been committed. Thewords had been said in a publicplace and it was at least possiblethat there were others around likelyto be caused harassment, alarm ordistress. Further, the claimant’sfriends were present and it was



possible that they might also havebeen insulted or alarmed.

Comment

Cases such as Holloway v DPP[2004] EWHC2621 (Admin) make itclear that to be convicted of anoffence under section 5 theoffending behaviour actually has tobe visible or audible to someone inthe vicinity at the time. It is perhapsright that the claimant was notconvicted of such an offence but thecase serves as another usefulreminder (along with Burgin onpage 19) of the much lowerthreshold for suspicion.

Daniel WestSolicitor

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