Paul Smith (details used with permission) won £25,000 compensation from Sussex Police for his wrongful arrest, false imprisonment, and police brutality claim.
His case was, we believe, one of the first in the UK where an innocent victim of police misconduct used evidence from the police’s own body worn cameras to help prove his claim. It is an example of shocking police brutality, involving the unjustified use of PAVA (“pepper”) spray and a spit hood. It also shows how police misconduct caused a straightforward situation to spiral out of control.
In this case study we give a legal insider’s view of how we
- bring actions against the police
- handle opposition tactics, and
- help our clients get the compensation they deserve.
(WARNING- THIS CASE STUDY CONTAINS COARSE LANGUAGE USED DURING PAUL’S ARREST. Names have been redacted where appropriate.)
Paul Smith contacted Donoghue Solicitors after finding us using an internet search and spoke with our Solicitor Director, Kevin Donoghue. Kevin specialises in actions against the police, and took full instructions. Paul explained that he had already called some solicitors to see if they would take his police brutality case against Sussex Police. They all refused as it involved bringing a claim against the police, an area of law most solicitors avoid because specialist expertise is essential.
Paul told Kevin that he was a long-time married father of three, who he had never been in trouble with the police before. He is an American who moved to the UK five years earlier, and now worked as a delivery driver for Dominos pizzas, complete with uniform and name tag (Paul said his was “Juan”. He later explained delivery drivers don’t use their real names.)
In August the previous year he went to his local Argos store in Hastings, East Sussex to pick up a birthday present for his son. He thought that this would only take a couple of minutes so took a chance and parked illegally near the store.
This turned out to be a big mistake.
When he came back to his car he found a female Special Constable and male Police Community Support Officer (“PCSO”) checking his car. The female officer asked Paul for his details. He realised she was going to give him a parking ticket and tried to “sweet talk” the police officer into letting him off. The officer refused and, in Paul’s opinion, took a long time to deal with her enquiries and issue the ticket.
Paul became upset. He was on a short break, which had been agreed by his boss, but was worried that being late back at work would put his job at risk. Mr Smith had been redundant for nearly a year before getting the job and knew it was vital for his family to keep it. He asked the officers to just give him the ticket and to let him go. They seemed unsympathetic.
Paul repeatedly gave his name and details to try to hurry things along, but the Special Constable just told him to slow down. Although not all Americans live up to the stereotype, on this occasion Paul did. He talked in a loud voice and used some colourful language. The female officer (wrongly) interpreted this as aggressive behaviour and called for backup.
Three police officers, two men and one woman, arrived quickly. The lead police officer, PC C, got out of the car and went straight up to Mr Smith. Paul recalled that he was wearing a short-sleeve shirt and, despite the warm August weather, leather gloves. He looked like a doorman or enforcer and, to Paul, was “instantly aggressive”.
Paul said the officer verbally abused him and tried to provoke him. Despite this, he stayed calm. Eventually, the officer arrested him for a breach of the peace. The police forced Paul to the ground, sprayed him with pepper spray, and put a spit hood over his head.
They told Paul that he had also been arrested for resisting arrest and breaching the Public Order Act. He repeatedly told the police that the arrest meant that he might lose his job. In response, he said that one officer laughed at him and said “You’ve lost your job now haven’t you?”. This added to his sense of injustice.
Mr Smith also claimed that he told the officers in the van that he was having difficulty breathing and repeatedly asked them to remove the spit hood. They ignored him, took him to Hastings Police Station in a van, and detained him for over four hours.
Paul told Kevin that, even though he refused to accept a caution, he was released and the police said they would take “no further action” against him.
He filed a formal complaint against the police which had been upheld. Paul told Kevin that he had some papers that might help. He also recalled that one of the police officers was wearing a body worn camera and that there was CCTV footage, but had not seen them.
As a result of this alleged police brutality Paul said he suffered physical and psychological injuries, lost earnings, and other expenses. He wanted justice.
Kevin advised Mr Smith that, on the basis of his version of events, he had a potential compensation claim, but that he would have to investigate further. Kevin agreed to investigate funding Paul’s potential actions against the police claim and, if appropriate, act by “no win no fee” agreement, which meant that Paul did not have to pay legal fees up front to pursue his claim. He asked Paul to send over all the documents he had about the incident so he could advise more fully.
Bringing a Police Brutality Claim
Paul sent over a number of items, including details of the officers involved, his GP’s medical record note confirming his physical injuries, and the police’s complaint investigation report summary. This last document confirmed that, in the complaint investigator’s opinion, Paul’s arrest was “both unnecessary and unlawful”, and that the force used was unlawful (because once an arrest is unlawful any force used is too. Read why here.) The police also confirmed that the lead officer, PC C, was to face a misconduct hearing. The others were to receive “management action”.
While these documents helped confirm Paul’s version of events they were not, of themselves, enough to prove his claim in a court of law. Kevin Donoghue knew that the complaint investigation was not legally binding on the police or their legal representatives, so began the process of bringing a civil action against the police for compensation on Paul Smith’s behalf.
He first demanded a copy of Paul’s custody record from Hastings Police Station, which was an essential document used to confirm the circumstances of arrest, times of detention, etc.
Once received, Mr Donoghue sent a formal “Letter of Claim” to the Chief Constable of Sussex Police. In it Kevin followed the Civil Procedure Rules Personal Injury Pre-Action Protocol. The Protocol is appropriate for more complicated and/or higher value matters, such as actions against the police. It sets time limits and dictates how the parties are to manage litigation before formal court proceedings. It also forces both sides to narrow the issues in dispute and provide early disclosure of documents on which they rely.
In his letter Kevin set out the circumstances of the incident and explained that the arrest was unlawful because it was not:
founded upon reasonable suspicion that he had committed any offence for which our client could lawfully be detained/imprisoned.
In Paul’s case, the reason for arrest was for a breach of the peace. Kevin wrote that:
The officers can only arrest for Breach of the Peace where there are reasonable grounds for believing a breach of the peace is taking place or is imminent. The Court of Appeal have defined a Breach of the Peace as being an act done or threatened to be done which either actually harms a person or his property or is likely to cause such harm being done.
The said arrest and detention were manifestly unlawful; our client’s conduct did not amount to a Breach of the Peace committed in the officers’ presence or was such to cause the officers to apprehend that a Breach of the Peace was imminent. In the circumstances, every minute of the said detention of our client was unlawful and constituted a false imprisonment.
Because of this:
The use of handcuffs, Captor spray, leg restraints, spit hood and all other physical force used upon our client was unlawful and amounts to an assault/battery.
Further and/or alternatively, the actions of the police officers in carrying out the arrest contravened our client’s right to liberty and security, in breach of Article 5 of the European Convention on Human Rights hence a breach of section 6 of the Human Rights Act 1998, for which our client seeks remedies pursuant to sections 6, 7 & 8 of the Human Rights Act 1998.
He confirmed that Paul would be seeking damages for false imprisonment for the full 4 hours and 35 minutes he was detained. Paul would also seek aggravated and exemplary damages (Read why here).
Mr Donoghue reminded the police of their obligations to provide disclosure of evidence under the Civil Procedure Rules and, in particular, demanded:
copies of the essential documents that relate to the issues in dispute; these should include, but are not limited to:
– Video footage from BWV
– Video footage from local authority CCTV
– CCTV of custody area
– Photographs of Claimant taken in custody
– Evidence and Action / Pocket Note Books of all attending officers
– Duty Statements of all attending officers
– Crime Report
– ‘999’ call log and any audio recording
– Audio recording and transcript of interview
– Copy statements and investigation notes completed and compiled as part of the complaint investigation (reference: REDACTED)
– Contemporaneous notes/correspondence detailing the discussions and outcomes reached between PC R, Sgt B and Case Director W (see Custody Record entry 21:05hrs)
He reminded the police of their obligation to confirm their position on liability within three months and said:
Unless you accept each and every cause of action, please set out in your response the reasons why each cause of action is not accepted, identifying which facts and which parts of the claim (if any) are accepted and which are disputed, and the basis of that dispute.
Defendant Tactics in Litigation: How the Police Responded
The police acknowledged the Letter of Claim and suggested that instead of dealing with the claim under the Pre-Action Protocol, they thought it should be submitted through the “Claims Portal”. (The Claims Portal is an online system suitable for lower value and straightforward personal injury cases involving, for example, road traffic accidents.)
Kevin Donoghue pointed out that his client’s complex claim against the State was unsuitable for the Claims Portal and that, as Paul’s case was a “multi-track” matter that may proceed in the High Court, it would initially follow the Protocol.
Sussex Police wrote back but failed to narrow the issues in dispute, confirm their position on liability, or provide the disclosure required under the Civil Procedure Rules. Instead, they simply made a “Part 36” offer of £5,100, saying that “it is in the interests of both parties for this matter to be settled without the need for formal litigation”.
While an offer was welcome, Kevin was cautious. He discussed it with Paul, and explained that making an early offer was an effective tactical move by the police. This was because, if Paul took it, matters would be concluded at that point for £5,100 in “full and final settlement”. But if he did not accept the offer he may be at risk on costs if he did not beat it at trial.
Kevin also explained that, as a solicitor duty bound to act in Paul’s best interests, he had professional responsibilities to fulfil. He said that it was impossible for him to advise fully if the offer was fair without knowing the police’s position on liability, seeing all the disclosure required (especially the body worn camera and CCTV footage), and obtaining medical evidence.
Despite this, Mr Donoghue felt that the offer was too low in his expert opinion. He told Paul that he could confidently reject it if the footage confirmed his version of events and if his client could prove his injuries, psychological effects, and other losses were caused by the police brutality. Paul was sure that would be the case. Kevin formally rejected the £5,1000 offer and demanded the police confirm their position on liability within the three-month Protocol period.
The day after the Protocol period expired Sussex Police admitted liability, but not causation. This meant that “The Claimant is required to prove that the injuries claimed were caused by the index incident.” Kevin knew that, in police brutality claims, admissions like this do not take matters much further. They can be withdrawn later and, because causation is still in dispute, admitting liability means that the Claimant still has to prove the claim anyway.
In their letter the police noted that no medical or other evidence had been sent, (which is perfectly normal during the investigation period) but, despite that, the Force increased their Part 36 offer to settle to £7,500.
Proving Paul’s Claim Against the Police
Again Kevin considered matters with Paul who rejected the police’s second offer. Mr Donoghue requested clarification of the admission of liability to narrow the issues between the parties. Was it for all heads of claim?
He also repeated his demand for full disclosure of all documentation, including body worn camera footage, as required under the Pre-Action Protocol. In Mr Donoghue’s opinion, this evidence was essential to help prove liability if any part of the claim was disputed. It may also help with causation and quantum (the value of the claim).
In the meantime, Kevin arranged for Paul to see two experts, a clinical psychologist and General Practitioner, to help prove his claim.
Reviewing the Evidence to Value the Claim
Eventually, the police sent some disclosure evidence including the body worn camera and CCTV footage. They also sent audio from the police dispatch office, and some police officers’ witness statements. Finally, Kevin could more accurately assess the claim and consider its worth.
When he reviewed these items Kevin could see why the police tried to settle the claim early.
Body Worn Camera, CCTV, and Audio Footage
Paul’s version of events was correct and the footage confirmed how badly the police treated him.
Kevin noted that the Special Constable at the scene had called in a “10/20” request for help and three officers were dispatched to the scene. Despite the police dispatch saying that Paul was “quite verbal but calm at the moment” the officers arrived at speed with sirens and blue lights activated, attracting the attention of shoppers and business owners in the crowded town centre.
With five police officers on hand things quickly took a turn for the worse. What follows are extracts from a transcript of PC C’s body worn camera footage (PC C was the police officer who looked “like a doorman or enforcer of some kind” and took the lead in dealing with the situation):
PC C (Gets out of car) Hello mate
Paul Smith Hello
PC C How are you doing, alright?
Paul Smith I am trying to get my ticket and get back to work
PC C Why are you being aggressive then?
Paul Smith I am not, I am not being aggressive in way, shape or manner
PC C Well my colleague is saying different
Paul Smith Well I haven’t been
PC C What’s your name, Juan?
Paul Smith Juan, I haven’t been aggressive in any way
PC C Just calm down then
Paul Smith I am calm, totally calm. People keep saying to me to calm down and if I am not calm, it is hilarious
PC C You are being aggressive to me at the moment
Paul Smith No I am not
PC C You are
Paul Smith My hands are in my pocket, my body language says I am not being aggressive
PC C You’re shouting at me
Paul Smith I am not
PC S (Female Officer) Your voice
Paul Smith I am not shouting, I am American and I am naturally louder than the British public
PC C You can calm down
The body worn camera footage showed that Paul maintained this non-confrontational stance but PC C’s “in your face” approach caused Paul to become even more defensive. He backed away from the officers and his car but they kept following him, trapping Paul between them, the Special Constable, and PCSO. All the time Paul kept his hands in his pockets and repeatedly asked for the parking ticket so he could go.
PC C became increasingly confrontational and irritated by Paul’s passive behaviour:
Paul Smith Can I have my ticket and be on my way please?
PC C They are sorting your ticket out
Paul Smith Because it takes a long time to write a ticket doesn’t it
PC C One minute
Paul Smith About 40 minutes to write a ticket out
PC C If you are going to be a dick about it you can be arrested and we will do it at the police station
Paul Smith She just said if I say a bad word I will go to jail, how come you can say bad words?
PC C Because I am telling you what is happening
Despite PC C’s confrontational manner and use of the word “dick” Paul managed to stay calm. But the situation deteriorated. PC S, the female officer called to the scene, joined in and inflamed an already heated situation by accusing Paul of being “obnoxious”:
PC C Yes CC763. I have told you to calm down and you’re not listening
Paul Smith I am calm
PC C Either calm down or we will nick you and we will do it in custody
PC S Stop being obnoxious, stay quiet and we can sort it out. What is he getting a ticket for?
(PC S asking male questions in distance about where he was born.)
PC C Right if you don’t give us the information then you will be arrested. It is offence to not provide details to a constable when you are required to do so.
Paul Smith Why are you in my face?
PC C I am losing my patience very much
Paul Smith You got out of the car losing your patience
PC C Yes because you’re aggressive
After Paul confirmed where he was born, the police continued to press him:
Paul Smith I am being non aggressive, I have got my hands in my pocket and I am totally non aggressive sir. I am non aggressive
PC S Ok, ok
Paul Smith I am not being aggressive in any way
PC S You’re being obnoxious
Paul Smith I am not, I just want to get into my car and go back to work
PC S Until you have received your ticket that is not going to happen and when you answer my colleague’s questions
Paul Smith I am just standing here. I am not being aggressive in any way
PC S Stop shouting then, you’re making a fool of yourself
Paul Smith I talk loud because I am from America
PC S I don’t care where you are from. I don’t care
Paul Smith Alright then
PC S I am telling you to talk quiet
Eventually things came to a head and PC C arrested Paul for a “breach of the peace”:
PC C To be honest, I am telling you to calm down
Paul Smith I am not shouting
PC C To be honest I am just going to nick you because you are breaching the peace and you can come and sit in my cells until you chill out
Paul Smith I have got five mouths to feed and I have got to get back to work
PC C Then you can keep your mouth shut until we process this ticket can’t you
Paul Smith You’re a very big man mate
PC C Don’t start having a go at me
Paul Smith You guys are hilarious, you got no crimes so you have got nothing to do
PC C Ok in that case you are nicked for breach of the peace and you don’t have to say anything unless something you later rely on in Court
PC C then took hold of Paul’s arm. Paul, who knew he had not breached the peace, hesitated and pulled away. The other officers joined in and forced him to the ground. He went down hard, landing on the left side of his face. PC S sprayed Paul’s face with PAVA Captor spray, which contains a synthetic variant of capsaicin (the active ingredient of natural pepper).
(Also known as “pepper spray”, Pelargonic Acid Vanillyl Amide (“PAVA”) incapacitant is described as a “Riot Control Agent” in the Chemical Weapons Convention and banned for use in war. It is illegal for the public to possess under s.5(1)(b) of the Firearms Act (1968). PAVA must be sprayed into the subject’s eyes to be effective. In practice, as in Paul’s case, officers aim for the face. The effect is an intense scalding heat pain, reflexive narrowing of the airways of the nose and mouth causing shortness of breath, sneezing, and coughing. The body responds by producing excessive amounts of mucous and saliva. PAVA also causes irritation and closure of the eyes and chemical burns and blistering to skin. According to the Association of Chief Police Officers “the pain to the eyes is reported to be greater than that caused by CS (gas)”. Recommended management is exposure to cool, fresh air.)
PC S then kneeled on his back and, between them, the officers roughly pulled Paul’s arms behind his back and handcuffed him.
With his face down Paul tried to spit out the foul-tasting and painful pepper spray to the ground. PC C (again, wrongly) interpreted Paul’s spitting as an attempt to spit at him. The officers put a spit hood over Paul’s head. This alarmed Paul even more. He begged for help:
Paul Smith I am on fucking fire
PC S Stay still, I sprayed you for a reason, because you were resisting arrest
Paul Smith I need water
PC S We don’t have water
Paul Smith I need water. I need water man
PC S We don’t have any water to give you
PC C You will get water when you go in your cell
Paul Smith I am choking
PC C You’re not choking
Paul Smith Seriously take it off
PC C You can’t have it off your face
Paul Smith Take it off, serious. Seriously, oh god xxxxxx
Paul Smith Can you take it off please, I am not a threat to you, I am in handcuffs. Why are you guys being so xxxx I am in handcuffs mate, I can’t hurt you. Please take it off, please, I have bad skin, I am not going to spit on you guys
PC C You were directed not to spit and you continued to do so
Paul Smith Because I had been pepper sprayed and
PC C The hood will be removed when it is safe to do so, that will be when you are placed in a cell, you still haven’t learnt to calm down yet have you?
Paul Smith I am calm
PC C You’re not
Paul Smith You pepper sprayed me and slammed me to the fucking ground
PC C I arrested you, you kicked off, you were sprayed, that’s all on video my friend
During this episode, PC C informed Paul he was now also being arrested for resisting arrest and a breach of s.4 Public Order Act:
PC C Put your hand behind your back now
Paul Smith Alright
PC C Right you are further arrested for resisting arrest. You have got yourself into a lot of trouble now haven’t you?
Paul Smith You can’t arrest somebody for resisting arrest
PC C Yes I can
Paul Smith How can you do that
(PC C gives caution)
Paul Smith You’re a big tough cop aren’t you hah? Oh yes, he parked on the pavement
PC S You’re on video
Paul Smith Get the fuck off me now
PC C No. You can learn to stay here. If you continue to swear you will be arrested for a further offence
Paul Smith Fuck off
PC C There you are, you are further arrested under Section 4 of the Public Order Act
Four of the five police officers at the scene restrained Paul. The police officers applied a leg strap restraint and escorted the handcuffed and spit hooded Mr Smith to a police van, in full view of shocked bystanders.
Other Evidence Not Confirmed on Video
At 4:42pm Paul was “booked in” at Hastings Police Station. Kevin Donoghue noted from disclosure documents that PC C, whose actions inflamed the situation, provided the arrest account to the Custody Suite. Despite Paul explaining the pain and discomfort of the spit hood, officers did not remove it until he was led into custody. (Paul later confirmed that he wore the spit hood for about half an hour.) Mr Smith was searched then kept in a police cell for four hours.
Paul claimed that, at this point, another officer (PC L) came to his cell and told him that his case would be reviewed and that he would be interviewed shortly. PC L suggested that things would progress more quickly if Paul admitted to the offences. Paul refused and maintained his innocence. (Unsurprisingly, Sussex Police deny this conversation occurred and there is no record of it, but Kevin Donoghue noted that the CCTV and body worn camera footage confirmed that Paul had told the truth about what happened earlier. It was feasible that a court would accept he was also right about this.)
Paul said PC L returned about 15 minutes later, said that he was not going to “criminalise” Mr Smith, and that he would be released. Explaining their decision, Paul said that at the custody desk the police said they had reviewed PC C’s body worn camera footage and that now no further action would be taken against him in respect of the offences alleged during the arrest (breach of the peace, breach of s.4 Public Order Act, resisting arrest).
The police gave Paul the parking ticket which started the incident and let him go, 4 hours and 32 minutes after arrest.
Review of Witness Statements
In disclosure the police provided witness statements which were later taken from the officers involved and an independent witness. The police officers provided Criminal Justice Act statements, which they signed as “true to the best of my knowledge and belief”. Kevin noted that the video footage contrasted with the witness statements, particularly the statement of PC C, who knew his body worn camera was recording everything. He was also concerned at how the police officers involved in Paul’s arrest omitted important details in their statements. (Read about the differences identified by the arresting officer’s supervisors in this blog post.) For example,
- PC C’s statement said that he told Paul his actions were “liable to make him arrestable to prevent a breach of the peace”. The body worn camera audio confirmed he actually said:
If you are going to be a dick about it you can be arrested and we will do it at the police station
- PC S’s statement left out crucial details about the force used, such as information about when, and how, the officers restrained Paul face down on the ground.
- The Special Constable also side-stepped the issue of whether the police used excessive force. She omitted any details about how PC C and PC S restrained Paul, even though she helped by holding his legs.
- The independent witness said in his statement that “I would add that the man was spitting and the officers put a hood on him but I don’t believe he was spitting of (sic) the officers. It was more of a case that he was spitting out the spray.”
After reviewing this vague and, at times, contradictory evidence, Kevin felt confident that his client had a strong compensation claim which, unusually, could include a claim for aggravated and exemplary damages. (Read why here.) He gathered further evidence.
Valuing the Claim for Police Brutality
Paul suffered physical and psychological injuries because of this police brutality. The next day his wife took photographs which showed the injuries to Mr Smith’s upper arm where police officers grabbed him. You could still see the finger marks. The upper arm pain took about 6 weeks to resolve.
The police assault using PAVA “pepper” spray and the spit hood caused eye irritation and swelling. Paul has a skin condition, which he repeatedly told the police officers about during his arrest. This was made worse by the chemical burn caused by the PAVA spray. It took two weeks for the irritation to heal.
When the officers forced him to the ground Paul suffered a blow to the left side of his face near the temple and to his left cheek. This caused grazes which scabbed and bruising, which took six weeks to resolve.
He saw his GP the following day who recorded the injuries.
As well as these physical injuries Paul suffered psychologically. He felt that he was “treated like a criminal” and said, “It was horrible. I felt victimised, treated like a piece of dirt.” He felt powerless to do anything and kept wondering why and how the event had happened. He felt “enraged”, especially when recalling the image of the female police officer laughing that he was going to lose his job. He was in a low mood, found it difficult to concentrate on other things, and struggled to sleep.
In the months after the incident Paul was anxious and hyper-vigilant around police officers. He said “I’ll never trust them again” and “I like to keep an eye on them.” His heart-rate increased when he was near police officers, and he would think of the incident often.
He was reluctant to go into work because his colleagues wanted to talk about the incident and, on occasion, joke about it. Police officers regularly came in to his Dominos store to buy pizza, and when they did his colleagues would say that they were there to arrest Paul. He had to deliver pizzas to Hastings police station where he was detained. This upset him so eventually his boss agreed not to send Paul there again.
He was embarrassed too. He is well-known in Hastings and worried about what people thought. This was made worse by the physical injuries, especially to his face. Paul said “I felt like I had a mark on my reputation”. He dwelled on the shame of this public incident. This made him angry and upset.
To prove this aspect of his claim Kevin arranged for Paul to meet with a clinical psychologist, who described Paul’s symptoms in her report as “an adjustment reaction” with a “situational anxiety in respect of encountering police officers”. The psychologist anticipated that Paul would recover from the psychological effects in about 2 years.
Mr Smith also suffered financially because of the police brutality. He lost earnings for the rest of his shift and his mobile phone screen was damaged when he was forced to the ground.
Settlement Proposals and Further Disclosure
Kevin obtained all the quantum evidence the court would need to value Paul’s police brutality compensation claim and sent it to Sussex Police inviting a reasonable offer. He reminded the Force that his client would be seeking basic, aggravated, and exemplary damages. (Read more about them here.)
The claim for basic damages, which always forms part of actions against the police claims, was for Paul’s injuries, loss of reputation, stress, and out-of-pocket expenses. More unusually, Kevin also claimed aggravated damages to compensate Paul for the police’s deliberate injury to his feelings. Lastly, Kevin claimed exemplary damages to punish the police for their “oppressive, arbitrary or unconstitutional action”. He knew that both aggravated and exemplary damages are rarely awarded, but in this case felt they were justified.
The police responded with an increased offer of £15,000. While Kevin knew this now put his client at risk if he did not beat the offer at trial, he advised Paul that he felt the claim was worth more, particularly if the court took his view that aggravated and exemplary damages were appropriate. Paul accepted his advice and rejected the offer.
Kevin intended to back Paul’s case to trial, taking the risk that he would not be paid as Donoghue Solicitors was acting under a “no win no fee” agreement. (Read why this is a risk for solicitors here.) To further strengthen Paul’s case and make sure the police complied with the Civil Procedure Rules, despite the disclosure which had been provided to date, Kevin demanded more, including full custody suite CCTV footage, notes of various officers, and the police’s complaint file.
Sussex Police continued their piecemeal disclosure. They sent statements from supervisors on the Response Investigation Team who had viewed the CCTV footage when PC C brought Paul in to the station. These statements added another piece to the puzzle and confirmed why Paul had been released with “no further action”. The supervisors clearly felt that PC C, especially, had acted badly. One said
I do not feel that they treated Mr Smith fairly and certainly did not do the right thing.
PC C accuses Smith of spitting at him so he is placed in a spit hood. We established later that Mr Smith was trying to clear his airway from the effects of the spray.
I would say that PC C and PC S on this occasion breached the Sussex Police code of conduct and such behaviour brings the police into disrepute.
Despite this useful information, Mr Donoghue remained dissatisfied with the disclosure provided. He felt that there were gaps in evidence which had to be addressed, including:
- a failure to give Paul his rights on arrival at the police station
- records of the conversations between him and PC L while in his cell (during which Paul says PC L suggested he accept a caution for the offences)
- failures by senior officers to report the matter to Professional Standards
- failures by Professional Standards to preserve (or alternatively, selectively edit) footage.
Kevin demanded statements which had been mentioned elsewhere in the disclosure provided to date but not sent, full copies of police officers’ notebook entries, CCTV footage from the entire period of detention, the police complaint file, and other things.
Reviewing the Police Complaint
Sussex Police responded with further documentation, including the police complaint file, which Kevin found especially useful.
He noted that two days after the incident, Paul filed a formal police complaint with the Independent Police Complaints Commission. In the complaint form Mr Smith described what had happened, his injuries, and that the police “treated me like a criminal and embarrassed me in the town centre for no good reason, as well as laughed at me when they physically assaulted me”. He said the incident was “very overboard and shameful treatment of a hard working person (myself)”. He asked for a copy of the recorded CCTV footage.
Even though Paul filed the complaint with the IPCC, they forwarded it to Sussex Police for investigation. The force appointed a member of its own Professional Standards Department to investigate. The investigation of Paul’s police complaint centred on two aspects:
- Was the arrest lawful?
- Was the force used excessive?
The police complaint investigating officer concluded that:
- no breach of the peace occurred, so
- the arrest was unlawful and unnecessary, and
- any and all force used was unlawful.
But, he considered the amount of force was not excessive. This confirmed the brief information Paul had provided at the beginning of the case.
Quite rightly, PC C was formally interviewed about his alleged misconduct. He was unrepentant and said:
If I was to do this again I would do it exactly the same way. In my mind nothing was done wrong.
In my mind I am the victim but treated as the suspect and I’m not very happy about the way it was treated by the investigation team.
In the response to complaint and the outcome of PC C’s misconduct hearing Superintendent B said:
I have considered this matter and note that the lowest possible formal sanction has been applied.
The matters unearthed during the latest round of disclosure were relevant to the issue of aggravated and exemplary damages. Mr Donoghue felt they confirmed that:
- PC C was shamelessly unrepentant
- he had attempted to avoid responsibility for his misconduct by providing false statements when Paul was “booked in” at the Custody Suite, so seeking to have Paul Smith prosecuted on bogus charges, and later providing false evidence in his Criminal Justice Act statement
- the force used was excessive
- the officers got little more than a “slap on the wrist” for their outrageous conduct.
And yet the police had still not complied with their duty to provide all of “the essential documents that relate to the issues in dispute”, as they are legally obliged to under the Civil Procedure Rules.
Kevin Donoghue followed up with a detailed letter setting out the reasons why further disclosure was required, in particular demanding details of an interview with one of the arresting officers and confirmation as to why CCTV footage from the Custody Suite was not preserved.
He also outlined the facts of the case. Kevin pointed out that Paul’s arrest arose directly because of PC C’s aggressive and confrontational approach. He described how the method of detention was excessive, disproportionate, and unnecessary. He (again) noted the failure of senior officers to report matters to the Professional Standards Department, as they are required to do. Mr Donoghue also noted that, despite PC C’s misconduct being admitted, the Force only identified a “training need… to improve his knowledge” about the law on breach of the peace. No reference was made to his personal behaviour which led to the arrest. Kevin questioned the failure of Sussex Police to correctly identify and punish this blatant misconduct and the motives of those senior officers involved in the disciplinary process.
Kevin Donoghue then went into detail to explain why the offer of £15,000 was a significant under-settlement. He valued basic damages for the false imprisonment, physical and psychological assault, and other losses. He explained why aggravated damages were appropriate, because there were humiliating circumstances in which the police behaved in a “high-handed, insulting, malicious or oppressive manner”. He wrote:
It is inescapable that a number of aggravating features attach to our client’s claim, given;
(i) The conduct of the officers was a gross affront to our client’s personal dignity and integrity;
(ii) Our client was subjected to gratuitous, unprovoked and violent force by officers who variously manhandled, pushed, captor sprayed, held down, handcuffed and bound (by leg restraints) our client. Such conduct was arbitrary, high-handed, intimidating and oppressive.
(iii) The conduct of the officers was deliberate;
(iv) The conduct took place in public, in a busy shopping area in full public view causing several members of the public to step forward and complain;
(v) Our client was handcuffed, bound by leg restraints and put in a spit hood for over 30 minutes in public;
(vi) The officers instigated our client’s unlawful arrest. The Defendant’s officers completed signed Criminal Justice Act witness statements in which they put forward fabricated evidence in order to justify the unlawful arrest of, and violent assaults upon, our client. In particular, they falsely alleged that our client had been hostile, aggressive and verbally abusive;
(vii) Our client was anxious about losing his job because of his arrest;
(viii) Our client was caused to fear possible loss of employment which was a source of livelihood, gave a sense of purpose and accomplishment and provided much needed money to support his large family;
(ix) Our client was highly embarrassed to have been arrested and assaulted in these circumstances; he was a well-known local character;
(x) Our client will further rely on your conduct insofar as you fail to apologise to our client, or seek to justify the conduct of the officers.
Mr Donoghue also sought exemplary damages. He said:
You will be aware that exemplary damages are awarded where the Defendant’s wrongdoing would constitute oppressive, arbitrary and/or unconstitutional action. All such epithets apply in this case:
a) This is a case in which the Court will undoubtedly mark its disapproval and condemnation of the Defendant’s officers’ actions which included a sustained and very public arrest and assault of our client which in the circumstances displayed an arrogant disregard and contempt for the rule of law and for civilised values in a democratic society;
b) The officers’ actions were, by their very nature, arbitrary, oppressive and unconstitutional and amounted to an arrogant abuse of power;
c) The essence of Lord Woolf’s “arbitrary” conduct is unreasonableness. Here arresting, gassing, use of the spit hood and detaining were all unreasonable;
d) The essence of “oppressive” here is the misuse/abuse of power by those in a position of authority and superior strength, causing harm;
e) The essence of “unconstitutional” here is the deprivation of basic rights, and of justice: right to liberty; right to be free from harm by the authorities; right to physical and personal integrity;
f) Unconstitutional also refers to the abuse of power by the authorities;
g) Use of Captor gas, spit hood and leg restraints here was inhuman and degrading and/or akin to cruel and unusual punishment;
h) The officers disgraced their office and violated the trust which the public place in them by the aforementioned tortious conduct.
Settling Paul’s Police Brutality Claim
With Paul’s agreement Kevin negotiated settlement of his claim. The police increased their offer (for the fourth time) to £21,221.90, which Kevin again rejected. The parties ultimately agreed compensation at £25,000 plus legal costs. This was nearly five times Sussex Police’s original offer and meant that Paul did not have to prove his claim in court.
Kevin’s determination to fully investigate Paul’s claim meant that his client received the maximum compensation he deserved. And, as well as the money, the settlement confirmed what Paul had known all along: that the police brutality he suffered was entirely unjustified.
Contact us for help with your own police brutality claim on 08000 124 246 or complete the online form on this page.
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Rating: ***** Action against Police I retained Kevin Donoghue to deal with an assault on me by a member of a police force. Thru [sic] his handling of the matter a financial settlement was reached. I found Mr Donoghue very easy to talk to and passionate about rights of the individual. I have recently retained him …