Harold Gerber v The Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 19 December 2018 |
| Neutral Citation | [2018] EWHC 3549 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: Case No: QB/2018/0165 |
| Date | 19 December 2018 |
[2018] EWHC 3549 (QB)
On Appeal from Central London County Court
Order of HHJ Freeland QC 8 May 2018
County Court Case No. A767P002
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stewart
Case No: Case No: QB/2018/0165
Ms Una Morris and Mr Sebastian Elgueta (instructed by Tuckers Solicitors) for the Claimant/Appellant
Mr Julian Waters (instructed by The Directorate of Legal Services for The Commissioner of Police for the Metropolis) for the Defendant/Respondent
Hearing dates: 10–11, 19 December 2018
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Stewart
This is an Appeal against an Order of Judge Freeland QC sitting at the County Court at Central London on 8 May 2018. Permission to Appeal was granted after a hearing before Mr Justice Lane on 7 September 2018.
The relevant paragraphs of Judge Freeland's QC Order are:
“2. The Claimant's claims be dismissed and accordingly Judgment be entered for the Defendant.
3. The Claimant do pay the Defendant's costs of the action, such Order not to be enforced without leave of the court…..”
The claim by Mr Gerber arose from an incident at about 11am on 15 November 2011. His claim was for assault and false imprisonment. The Claimant is a black man. On the day he was wearing black trousers, a black jacket, a shirt and tie and a black baseball cap. He boarded a train at Norwood Junction. He was sitting in the aisle seat of a bank of two seats. Shortly afterwards two policemen boarded the train. One of the policemen, PS Hurren, approached the Claimant with his gun fixed upon him. He was told to put his hands up. Another officer approached holding a taser. This was Constable Scoulding. He pressed the taser into the Claimant's chest.
I will now summarise the pleaded Defence: At about 10:40 am that day, railway staff at Norwood Junction station saw a man on a platform waving a gun and shouting out what they thought to be religious phrases. They contacted the Police. The incident was classified as a “rail emergency” and a firearms operation. The station was immediately closed and passengers evacuated. The man with the gun boarded a train occupied by passengers. The train was held at the platform. PS Hurren 1, Constable Scoulding and Constable Greaves made their way to the scene. En route a description of the suspect was sent. This was of a black male wearing a black jacket and a black “Stetson” hat and with a silver revolver handgun. PS Hurren asked for confirmation regarding the hat and was told that the Computer Aided Despatch (“CAD”) recorded a black hat, no mention of a Stetson. The officers arrived and were briefed outside the station. The three police officers were led by another police officer to platform 3 where the train was held. PS Hurren led Constable Scoulding onto the train. PS Hurren “had his…firearm in the aim position with the safety off scanning and looking for the suspect.” PS Hurren then entered the next carriage and within a few steps saw a black male wearing a black hat and a black coat. It was pleaded that this man made eye contact with PS Hurren and upon doing so reached down to his right hand side. PS Hurren told him to stay still and show the officer his hands. He pointed his firearm at the man from a distance of about 2–3 metres yelling: “Stay still, don't move”. PS Hurren was aware of Constable Scoulding coming to his right and saw the red laser dot from his taser appear on the man's chest. PS Hurren continued to point his firearm at the man and told him to put his hands on his head. The man, the Claimant, did not comply with that request and PS Hurren shouted at him again. The man avoided eye contact and said that he had not got a gun and did not deal with guns. The Claimant then brought his hands up and they were grabbed by Constable Scoulding. Constable Scoulding moved forward placing the taser on the Claimant's chest to try and ensure
that the Claimant complied with the officers' requests. PS Hurren then became aware of a disturbance to his right-hand side across and in close proximity to the Claimant. There was another black male also wearing a black coat and a hat. PS Hurren saw a silver imitation handgun on a small table next to him. Constable Scoulding heard Constable Greaves interact with the other man and immediately removed the taser and aimed it at the black male across the carriage. That man had a silver gun on the table to his left. The man said it was a toy. It was thought that this other man remained a threat and could have been a danger to himself, officers and members of the public. The Claimant was then hurried out of the wayThat is the pleaded outline of what happened.
I have read a transcript of the approved Judgment of Judge Freeland QC. This is dated 8 May 2018. The trial had commenced on 30 April 2018 before a Judge and jury. The evidence concluded on the fourth day of the trial. The Judge heard legal argument on the morning on the fifth day of the trial and, at the conclusion of the legal argument, ruled that there were no disputed issues of fact upon which he required the assistance of the jury in order to determine the law and the legal causes of action. He further ruled that the Defendant had discharged the burden of proof in relation to the use of force and the short period of detention all of which amounted to less than 30 seconds. As he pointed out, the burden of proof was upon the Defendant in relation to both causes of action, namely the assault/battery and false imprisonment.
The Judge referred to the man who eventually was detained and arrested and who had the toy gun as “JL”. JL was shown on the CCTV stills as wearing a broad brimmed hat and red tie. The Claimant was wearing a black baseball cap, a short black jacket and a scarf around his neck. At one point after his release the CCTV shows him wearing a shirt and what appears to be a tie.
The Judge recorded that the Defendant acknowledged that the Claimant was not the suspect in the result, and that a mistake as to identity was made. The Claimant is an entirely innocent man and underwent a horrible experience.
At the outset of the trial the Defendant had submitted that it was unnecessary for a jury to be sworn. The Judge ruled against the Defendant. He did this because: “it was necessary for the facts to be ascertained before making any rulings at all about what question or questions I should leave to the jury……” He also made it plain to counsel that he would return to the subject of the jury questionnaire on liability at the conclusion of all the evidence. He said he would only leave a question or questions for the consideration of the jury if he came to the conclusion that the answer to such questions would necessarily inform his conclusions on the law, on one or more of the Claimant's causes of action.
The Claimant's evidence was essentially unchallenged, he being a wholly innocent member of the public who was caught up in a situation not of his own making. When he had entered the carriage, he saw a gentleman alongside, just behind him, who was singing. He was a black man, plainly a reference to JL. In cross examination he denied saying to the police that he did not deal in guns. Neither counsel submitted that that was a factual dispute relevant for the jury to consider.
The Judge then reviewed the evidence of some background witnesses before coming to that of PS Hurren. The description he received prior to arriving at Norwood station was of a black man, black hat, black jacket or coat, shirt, tie, silver handgun. He remembered hearing coming over one of the radios a Stetson hat and he thought that was strange. He said he sought clarification and they came back to him with black hat, no mention of Stetson. This was not challenged in cross examination by Ms Morris on behalf of the Claimant. When they entered the second carriage, PS Hurren said that almost immediately somebody who matched the description of the man on the platform was there, namely black man, a black hat, a shirt and tie and a black jacket.
Judge Freeland QC then reviewed the cross examination of PS Hurren. He said he considered this with considerable and anxious care. This in particular is about the topic of the shirt and the tie. The officer accepted that the shirt and tie were not mentioned in the Evidence and Actions Book (EAB) or in his witness statement of 15 November 2011. It was mentioned in a statement he made 18 months later without the notes. PS Hurren maintained in evidence that he did see the shirt and the tie. PS Hurren said that the Claimant was stopped because of the detail of description and his demeanour, the black hat, the black jacket and his ethnicity. He said that the shirt and tie were visible at the time but the Claimant's demeanour was an important part of his dynamic risk assessment. PS Hurren agreed that racial bias could not form reasonable grounds for suspicion. Ms Morris put it to PS Hurren that his state of mind was affected by racial bias but the Judge said: “that was as an assertion without any material served to justify that and he denied it and said he would not act in a way of racial bias at all”.
The Judge then reviewed the evidence of Constable Greaves and another officer. Constable Greaves, who was the driver en route to the station, supported the evidence that, prior to the arrival at the scene, PS Hurren had questioned the matter of the cowboy hat and it was clarified that there was no cowboy hat. There was no challenge or cross examination upon that detail....
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