James Browne v The Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Her Honour Judge Coe |
| Judgment Date | 01 December 2014 |
| Neutral Citation | [2014] EWHC 3999 (QB) |
| Court | Queen's Bench Division |
| Date | 01 December 2014 |
| Docket Number | Case No: HQ11X01233 |
[2014] EWHC 3999 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
HHJ Coe QC SITTING AS A JUDGE OF THE HIGH COURT
Case No: HQ11X01233
Mr S Cragg QC (instructed by Hughmans) for the Claimant
Mr E Buckett (instructed by Weightmans LLP) for the Defendant
Hearing dates: 21 st, 22 nd and 23 rd October 2014
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.
Her Honour Judge Coe QC:
On 4 th April 2010 the Claimant James Browne (known as Jimmy) was walking along Kentish Town Road with the comedian and television celebrity Noel Fielding. It was Easter Sunday morning at about 10:30am. They had been to a party and had not slept. Mr Fielding describes having performed a gig at the 100 Club and then gone for drinks at the Hawley Arms before going back to a friend's flat where there were 15 or so people. The Claimant had been drinking in the public house from about 10 o'clock in the evening and had been at the party.
Mr Fielding was still wearing his stage outfit consisting of dungarees, gold boots and a ladies' checked jacket. At that time his hair was dyed yellow blonde. Mr Browne was more conservatively dressed. The Claimant had worked at various times as a close protection security guard for celebrities and similar figures. He said that he had been in the habit of "looking out" for people such as Mr Fielding who might be the subject of unwelcome attention by reason of their celebrity status. He was not Mr Fielding's "minder". The two were known to one another and Mr Fielding described Mr Browne as somebody he had known for some time. Mr Browne described Mr Fielding as a friend. I do not think that they were close friends but they were well known to one another. It was Mr Fielding's intention to go to a local supermarket to buy bread, milk and so on. Mr Browne told me that he had the intention to accompany Mr Fielding but that he also wanted to buy some cigarettes.
Having been in Mr Browne's words "almost the last men standing" at the party Mr Browne who was, it seems, known for his "minding" skills was asked to clear up some wraps and drug paraphernalia as he left. He did so and picked up eight or so paper wraps containing what he knew to be likely to be drugs or traces thereof. It would not be realistic as I find, to consider that he would have thought that there were significant quantities of drugs since it is unlikely that they would have been left behind. In any event he picked them up and put them in his pocket intending to dispose of them outside of the premises, presumably in a public litter bin.
As they walked along the road the Claimant and Mr Fielding were seen by two police officers, Police Constable O'Leary and Police Constable Tucker (now Mr Tucker) who were in a patrol car. The officers told me that they recognised Mr Fielding and believed that the two men were showing signs of drug use and so they turned the car round to follow them intending to stop them and talk to them.
In the course of the ensuing incident Mr Fielding was restrained, handcuffed and searched and then taken to the police station where he was subjected to a strip search. No drugs or drug related materials were found on him and he was subsequently released without charge or further action. Mr Browne was followed by PC O'Leary into the Everbest convenience store and forcibly removed and taken outside and restrained and handcuffed. He, too, was searched and the various wraps were found. An ambulance was called to attend to Mr Browne who had by then been arrested. He was taken to the Royal Free Hospital.
In the course of the incident Mr Browne suffered a severe, comminuted fracture of his right tibial plateau known as a Schatzker type 6 fracture for which he was treated in hospital. This was a significant injury. He was in hospital for about a month. He has undergone several further operations and has ongoing difficulties as identified below.
The wraps were found to contain traces of Mephedrone which was not at the time an illegal drug. One of the wraps contained 12mg of cocaine. No further action was taken by the police in respect of this very small amount, in fact little more than a trace, of cocaine.
This case concerns Mr Browne's claim for damages for assault and battery against the police in respect of the knee injury and in essence the question for me is how he came by that fracture in the course of the incident I have described.
It is the Claimant's case that he was the subject of a deliberate assault in the Everbest store by PC O'Leary who struck him on the back of the head and kicked him before carrying him out and forcing him to the ground. The defence case is that: Mr Browne failed to comply with the police request to be searched; attempted to flee; attempted to discard the drug wraps by swallowing them or otherwise; offered violence and struggled when PC O'Leary was attempting to remove a wrap from his hand or prevent him from swallowing it; and that the police officers used only that force which was reasonable and required to carry out their search and arrest and/or to prevent harm to Mr Browne by way of ingestion of the drugs he was trying to swallow. The defence suggests that Mr Browne must have come by the knee fracture when he was being forced to the floor by PC O'Leary outside of the shop, but that this was an unfortunate accident brought about by the reasonable force required in light of Mr Browne's resistance.
At the beginning of the trial I gave permission to both parties to amend their pleadings. By his Particulars of Claim the Claimant claims damages for assault and battery, negligence and breach of the Human Rights Act 1998. It was indicated on his behalf at the beginning of the opening that the claims under the Human Rights Act and in negligence were not pursued. His claim is for assault and battery. He pleads that having been approached by the police and it not having been indicated to him that they wanted him to stop he went into the shop. He was followed by PC O'Leary who assaulted him from behind without warning, striking him on the back of his head and grabbing him from behind. His nose and throat were grabbed and his nose was later found to have been broken. The Claimant says that he was then viciously kicked in the leg by Officer O'Leary and fell to the ground and lost consciousness due to the pain. PC O'Leary is then alleged to have picked him up from behind and carried him out of the shop. It is the Claimant's case that there was no basis for any force to be used against him in the absence of any lawful justification for his arrest and/or detention at the scene. By the amendment it is specifically pleaded (at paragraph 14) that "…the failure to comply with statutory provisions such as section 2 of the Police and Criminal Evidence Act 1984 prior to the carrying out of a "drugs search" would mean that there was no lawful justification for the Claimant's detention for the purposes of a search or the use of force to effect such a detention". Alternatively it is said that if there were grounds for the application of force that the force used was unreasonable. The Claimant claims aggravated and exemplary damages as well as general and special damages arising from the injuries and their consequences.
By his Defence the Defendant says that his officers saw the Claimant and Mr Fielding (who they immediately recognised) and that both men were showing signs of drug use. The Claimant is described as having his eyes wide open and stumbling around. It is said that his jaw was wobbling and he had no control over it. It is averred that he looked dishevelled, unshaven and tired. In consequence the officers wanted to speak to the Claimant and Mr Fielding about their behaviour and presence in the area. As they turned their patrol vehicle round they saw the Claimant knocking on a taxi window and it appeared that he was trying to get inside. The taxi drove off and then the officers pulled their vehicle up alongside the pair and PC O'Leary asked them what they were doing and why the taxi had driven past them. It is alleged that neither answered relevantly or coherently but looked as if they were "high". PC O'Leary spoke to another man on the pavement who was behaving oddly, but who was not connected with the Claimant or Mr Fielding. PC Tucker approached Mr Fielding, identified himself and asked whether Mr Fielding was feeling alright but he gave no audible response and maintained a fixed stare. It is alleged that he had large pupils and appeared uneasy.
PC O'Leary apparently watched as the Claimant went into the Everbest Food and Wine convenience shop. He followed him and shouted to the Claimant to stop for police, but was ignored. He walked quickly after the Claimant and as he did so could see that the Claimant's hand reached into his jacket and he was trying to remove something from his pocket. It is alleged that PC O'Leary thought that this could be illegal drugs that the Claimant was trying to dispose of or possibly a blade or a knife. The Claimant appeared to look over his shoulder as if aware of PC O'Leary's presence and was again asked to stop for police, but carried on walking, deliberately ignoring the officer. The Claimant made eye contact with PC O'Leary who informed him he was a police officer. It is averred that the Claimant continued to display signs of drug use. Constable O'Leary noticed something in the Claimant's right hand which looked like a white wrap and the officer asked the Claimant what was in his hand and advised him that he was being detained for a drugs search....
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