Last year, Edwin Afriyie failed to prove liability in his civil claim against the City of London Police at the High Court. Normally, that would be an end to the matter. But Edwin has been granted permission to take his case to the Court of Appeal. Find out how, and why, here.
My client Edwin Afriyie (Ed, as I know him), has been through a lot in the past five or so years.
On 7 April 2018, City of London Police officers pulled Mr Afriyie over while he was driving his Mercedes Benz car.
Ed, who is a youth and community worker, got out of his vehicle. He attempted to provide a breath test sample when asked to do so. After the machine registered an “insufficient” result, which can happen when users do not blow hard enough, the officer administering the test asked if Ed had asthma or any other reason why he could not provide the sample. Mr Afriyie confirmed that he has “breathing issues” and tried to provide the sample again, unsuccessfully.
Matters took a turn when officers told him he was being arrested for failing to provide a sample. Then, while standing with his arms folded, one of the Force’s officers Tasered Ed in the chest. This caused Mr Afriyie to fall backwards and hit his head on a stone ledge, sustaining secondary injuries including a head injury.
Mr Afriyie was subsequently handcuffed. The police initially charged him with failing to provide a sample. Prosecutors dropped the case when magistrates demanded the body worn camera footage.
As well as physical injuries, Ed still suffers from the psychological effects of the police’s actions.
How City of London Police Responded to Edwin Afriyie’s Civil Claim
Ed Afriyie approached me for legal advice about bringing a civil action against the police. After discussing his case, I agreed to represent him on a “no win no fee” basis in a claim against the Commissioner of Police for the City of London.
He sought compensation for assault, battery, and misfeasance in public office (which is defined as “a civil tort pursued against the holder of a public office following the misuse or abuse of power”.)
The police denied liability, as they usually do when presented with a civil claim. Among other things, officers at the scene sought to justify the use of the Taser weapon by claiming that Ed:
- adopted a fists-up “fighting stance” with “his hands in front of his body, forearms perpendicular to the ground”
- “resisted PAVA” (commonly known as pepper spray)
- “reached for his pockets” before being Tasered.
These points were made in officers’ MG11 witness statements. The officers who completed them signed their statements with the following wording:
This statement (consisting of [ ] page(s) each signed by me) is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false, or do not believe to be true.
The case proceeded to trial and was initially heard at the High Court in London in 2022. The presiding judge considered all the evidence, including oral evidence from Ed and police officers. But unfortunately, the matter was not resolved because the judge fell ill before completing his reserved judgment.
As a result, the case was re-heard in its entirety on 10,11,12,16 and 17 May 2023 before another senior judge, Mrs Justice Hill. Again, Ed and some of the police officers at the scene gave evidence in person. The judge also reviewed witness statements, other written evidence, and the body worn video, some of which you can see here:
In her written judgment, dated 30 June 2023, Mrs Justice Hill found that, contrary to what the police officers claimed, Ed did not:
- adopt a fighting stance “at any point in the incident”
- resist PAVA
- reach for his pockets before being Tasered.
As a result, she noted that:
The totality of this evidence created a justified concern, emphasised by Mr Hughes, that the officers had colluded together to deliberately exaggerate the Claimant’s conduct to make him appear more aggressive than he had in fact been.
It is likely that the police’s lawyers were aware of this risk, because:
The Defendant chose not to call any of these officers at trial so these issues could not be explored further with them.
Despite these inconsistencies, the police successfully defended Ed’s claim in the High Court.
In Mrs Justice Hill’s view, the police officer who Tasered Ed “honestly believed” that the use of his Taser was “necessary” and “objectively reasonable” because Mr Afriyie “was a large and muscular man” who “was clearly very agitated” and had “repeatedly shouted” that he would not allow himself to be arrested and pushed officers’ hands away.
As a result, the judge found that Ed had not proven his claims for assault, battery, and misfeasance in public office on the balance of probabilities, the legal standard which applies in civil cases.
Taking on the police is not for the faint-hearted. Losing after two trials was devastating to Ed. The time, effort, and emotional toll was huge.
Civil litigation also involves significant financial risk. This is because the usual rule in civil proceedings is that the loser pays the winner’s legal costs. But he would not have to pay them if “qualified one-way costs shifting” applied.
The police sought to have Ed pay their costs, arguing that qualified one-way costs shifting protection did not apply because he was “fundamentally dishonest” in his evidence. (This was rich, given the inconsistencies in the police’s evidence described above.) If the judge agreed, Mr Afriyie would have been personally on the hook for the police’s costs. After more than five years of litigation and two multi-day trials, these were in the tens of thousands of pounds.
Thankfully, Mrs Justice Hill dismissed the police’s bogus arguments out of hand. So, even though he lost at the High Court, Ed was not required to pay his opponent’s legal costs. And, because my firm and Ed’s barrister, David Hughes, represented him under no win no fee agreements, he did not have to pay any of his own legal fees.
In effect, Donoghue Solicitors and Mr Hughes put our money where Ed’s mouth was and swallowed his wasted costs whole.
Legal Issues Considered
Mr Afriyie was glad he avoided the serious costs consequences of losing, but he was devastated at the perceived injustice.
“It just doesn’t feel right. How can she say it was justified to Taser me?” he said.
David Hughes and I were similarly disappointed. We still believed in Ed and his case and began investigating if there was any merit in challenging the judge’s findings. This was a thorough exercise. Among other things we considered Mrs Justice Hill’s 35-page written judgment, our notes, and first-hand experience of the trial.
It was important that we took the time to do this work because, when considering an appeal, it is never enough to simply say that you disagree with the verdict. You must have a strong argument that the judge erred in law. (Keyboard warriors on social media might scream “appeal!” when they see a verdict they don’t like, but they rarely know if, how, and why an appeal can be filed, and the work and cost that goes into filing one.)
Our investigations led to an important question. Did Mrs Justice Hill err in law by:
- considering the Association of Chief Police Officers’ guidance on the use of Tasers, which she was addressed on during the trial, but then
- not applying the findings of fact to the standards set out in this guidance?
Factors to Consider in an Appeal
This was not the only thing we had to consider. We also focused on if:
- Mrs Justice Hill erred in
- her interpretation of the law and
- how it applied to the facts in the case
- the error, or errors, were such that they made a material difference to the outcome
- it mattered that Mrs Justice Hill refused permission to appeal her ruling
- the Court of Appeal would consider the case of sufficient importance to fit it in to their cramped schedule
- Ed, and his lawyers, were willing and able to shoulder the cost and financial risk of an appeal.
We knew that the appeal would not proceed without all the above. In particular, the third and fourth points were significant, and are often overlooked.
Refusal of permission to appeal from the High Court
Mrs Justice Hill’s refusal to allow permission to appeal closed one of only two possible routes. This is because applicants can only seek permission to appeal from the court where the decision was made, or the court they want the appeal heard in.
Her refusal to allow an appeal ramped up the pressure, because we now only had one opportunity to appeal, and that meant convincing the Court of Appeal to hear the case.
Importance to the Court of Appeal
Given that there are thousands of County and High Court cases decided every year, it is no surprise that the Court of Appeal is overburdened with requests for permission to appeal.
The Court of Appeal is the second highest court in the land (after the Supreme Court). Its decisions bind all lower courts, such as the High Court and County Court, effectively making new “common” (judge-made) law. This is a heavy responsibility, and one the Court takes seriously when deciding which cases to hear.
There are also practical personnel issues. If permission to appeal is granted, cases such as Ed’s are heard before a very senior three-judge panel. There are very few judges of sufficient seniority, and they are often called to hear cases elsewhere, including the Supreme Court.
So, getting your case accepted by the court is no mean feat. Persuading the court is made harder by the fact that you cannot make oral submissions unless requested by the court. Instead, applicants (known as “appellants”) file written submissions seeking permission to appeal. And, when considering applications, reviewing judges can only grant permission where:
(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason for the appeal to be heard.
Dealing with Legal Costs in the Court of Appeal
Ed was keen to seek permission to appeal but his High Court experience meant he was concerned about legal costs. As a youth and community worker, Mr Afriyie is not eligible for legal aid or other public funds.
He was right to have costs top-of-mind. King’s Counsel’s fees alone can be £10,000 per day. Then there are the fees for so-called “junior” barristers like David Hughes, who share case preparation and presentation duties with the KC, solicitors like me (I have over twenty years’ experience in this area of law and charge accordingly) etc. It is easy to see how appeals can be prohibitively expensive for people who must pay legal fees up front.
So, to limit Ed’s exposure, despite the loss at the High Court, David Hughes (barrister), Richard Clayton (King’s Counsel), and myself, all agreed to represent him on a no win no fee basis. This means that, unless Ed is successful, we will not get paid a penny for his appeal.
This is a significant financial risk to my firm and Ed’s barristers, but one we are all willing to take to make sure Ed gets the access to justice he clearly deserves.
Contrast this situation with that of the police’s lawyers, who have virtually unlimited resources as their defence costs are funded by the taxpayer. For this, and other reasons, it is a virtual certainty that they will fight the appeal.
My Role as a Solicitor/ Project Manager
Once we received Mrs Justice Hill’s judgment, I knew that the clock was ticking. Appeals to the civil division of the Court of Appeal must be submitted within 21 days after the date of the decision the appellant wishes to appeal, and in a strict format set by Part 52 of the Civil Procedure Rules (CPR). This meant we only had a short period of time to prepare and submit written submissions, which included a “skeleton argument” outlining the reasons for appeal, together with supporting documentation, including the crucial body worn video footage (which you can see above).
I coordinated everything and filed Ed’s submission at the Court of Appeal. We focused the application for permission to appeal on (what Rt Hon Lord Justice William Davis later described as) the essence of the case:
was the police officer’s belief that is was necessary to use a Taser objectively reasonable and was the use of a Taser more than was objectively reasonable?
Outcome of Application for Permission to Appeal
On 6 December 2023, we learned that our application to appeal Mrs Justice Hill’s judgment was successful.
Mindful of his powers under CPR Rule 52.7(2), in his Order granting permission, LJ Davis confirmed that he had viewed the body worn camera footage and said:
By reference to that footage, the appeal has a real prospect of success. The judge’s reasoning was careful and detailed. However, I am satisfied that there is a sensible basis for arguing that she fell into error.
And, referring to the central argument that the judge erred in law with respect to how she dealt with the Taser guidance, he noted:
The guidance provided to police officers on the use of Tasers was referred to by the judge in connection with the appropriateness and lawfulness of the use of the Taser in this instance. It is a matter which will be of relevance in the appeal.
Format and Date of Edwin Afriyie’s Appeal Hearing
Unlike Ed’s two previous trials, the appeal hearing is scheduled to last only one day. This because it is narrowly focused on the specific issues raised by us when seeking permission to appeal.
The three-judge panel at the Court of Appeal will not hear fresh oral evidence. But it is likely that the judges will review the body worn camera footage, documents produced during trial, and other evidence, before hearing oral arguments from barristers.
It is normal for the Court of Appeal to reserve judgments, meaning that we will have to wait for a written judgment (as we did after the hearing in May 2023).
Because of scheduling conflicts, the appeal is likely to be heard in October 2024. I will update readers here in due course.
Both Ed and I are glad to continue his fight for justice. As I told The Guardian’s Emily Dugan:
“I am really pleased with the court of appeal’s decision in Edwin’s case and that he will now have the opportunity to right this wrong. I hope that if the court finds in Edwin’s favour, the City of London police – and other police forces up and down the country – will respect the decision and re-evaluate culture and training surrounding the use of Taser, particularly against marginalised communities who are disproportionately affected by such draconian uses of force by police officers.”
Kevin Donoghue is the solicitor director of Donoghue Solicitors. He specialises in serious civil actions against the police and was shortlisted for the 2023 Liverpool Law Society Outstanding Lawyer Award.