Kelly Minio-Paluello v The Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judgment Date | 16 December 2011 |
| Neutral Citation | [2011] EWHC 3411 (QB) |
| Docket Number | Case No: HQ09X05578 |
| Court | Queen's Bench Division |
| Date | 16 December 2011 |
[2011] EWHC 3411 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Eder
Case No: HQ09X05578
Mr Stephen Simblet (instructed by Bhatt Murphy) for the Claimant
Mr George Thomas (instructed by Director of Legal Services, Metropolitan Police) for the Defendant
Hearing dates: 5, 6, 7, 8 and 9 December 2011
Introduction
In these proceedings, the Claimant, Ms Kelly Minio-Paluello, claims damages for assault (or battery) and/or in negligence arising out of injuries which she suffered in the course of a pro-Palestinian demonstration on the evening of Friday 9 January 2009 in the vicinity of the Israeli Embassy in Kensington High Street, London. There is also a pleaded claim for breach of human rights arising out of the police's conduct although it was conceded on behalf of the Claimant that this discrete claim may not add very much to the claims save that it may have a bearing on the approach that would need to be taken to damages. In addition to compensatory damages, the Claimant also claims aggravated and/or exemplary damages.
The Claimant is a young woman. She is about 5'3" and at the time of the incident she was 27 years old and weighed about 60 kg. There is no dispute that in the course of arrest of a fellow protester, Mr Taimour Lay, she sustained a double fractured humerus and a rotator cuff injury to her shoulder when she was pulled up from the ground by a police officer (PC Pelham). The main factual issues focus upon the circumstances in which the Claimant sustained her injuries and, in particular, whether they were the result of any actionable fault on the part of the Defendant, the Commissioner of Police of the Metropolis.
In essence, the defence is:
a. That there was a lawful basis for the use of force by PC Pelham
i.) Under section 117 of the Police and Criminal Evidence Act 1984 ("PACE") in order to complete the lawful arrest of Mr Taimour Lay;
ii.) In defence of his fellow officers and/or in self defence;
iii.) To prevent a criminal offence being committed pursuant to section 3 of the Criminal Law Act 1967, the specific offence being obstruction of a police officer in the execution of his duty; and
b. That the degree of force used was reasonable and proportionate in all the circumstances.
The Law
Before considering the relevant events, it is convenient to consider the applicable principles of law which were generally common ground and which may be summarised as follows:
a) The application of any intentional hostile force amounts to an assault unless legal justification for it can be shown. The burden of proof of justifying the use of force, both as to the ability to use any force at all and its extent, falls upon the Defendant: see Ashley v Chief Constable of Sussex [2008] UKHL 25, [2008] 1 AC 962.
b) Section 137(1) of the Highways Act 1980 provides that if a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence. Thus, in effect, there are three elements to the offence viz (i) an obstruction (although the obstruction may be partial); (ii) wilfulness and (iii) lack of authority or excuse.
c) Protest on the highway can be lawful but it is not the case that it necessarily will be lawful. For example, in the House of Lords in DPP v Jones [1999]2 AC 240, the Lord Chancellor stated, at 257 D-E: "I conclude therefore the law to be that the public highway is a public place which the public may enjoy for any reasonable purpose, provided the activity in question does not amount to a public or private nuisance and does not obstruct the highway by unreasonably impeding the primary right of the public to pass and repass: within these qualifications there is a public right of peaceful assembly on the highway."
d) A police officer's power to make an arrest is set out in section 24 of PACE which provides as follows:
"24. Arrest without warrant: constables
(1) A constable may arrest without a warrant
(a) anyone who is about to commit an offence;
(b) anyone who is in the act of committing an offence;
(c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence;
(d) anyone whom he has reasonable grounds for suspecting to be committing an offence.
(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.
(3) If an offence has been committed, a constable may arrest without a warrant—
(a) anyone who is guilty of the offence;
(b) anyone whom he has reasonable grounds for suspecting to be guilty of it.
(4) But the power of summary arrest conferred by subsection (1), ( 2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.
(5) The reasons are—
(a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);
(b) correspondingly as regards the person's address;
(c) to prevent the person in question—
(i) causing physical injury to himself or any other person;
(ii) suffering physical injury;
(iii) causing loss of or damage to property;
(iv) committing an offence against public decency (subject to subsection (6)); or
(v) causing an unlawful obstruction of the highway;
(d) to protect a child or other vulnerable person from the person in question;
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.
(6) Subsection (5)(c)(iv) applies only where members of the public going about their normal business cannot reasonably be expected to avoid the person in question."
e) As to the defence of self-defence, (i) the belief that it is necessary to act in self-defence must be both an honest belief and one which must be reasonably held; and (ii) the action taken on the basis of this belief must be reasonable: see Ashley v Chief Constable of Sussex Police [2007] 1 WLR 398 CA. This point was not the subject of appeal before House of Lords decision in the same case, reported at [2008] 1 AC 96. For cases of self-defence, pending the decision of the House of Lords, the matter is settled.
f) However, insofar as PC Pelham was acting in furtherance of the arrest of Mr Lay, the matter is less clear. The House of Lords expressed their concerns about whether a reasonable but mistaken belief in the lawfulness of the actions would be sufficient, albeit the observations are obiter. Lord Rodger stated at paragraph 55: "The argument is encapsulated in Sedley LJ's crisp observation that "honest belief in a non-existent state of affairs does not excuse a trespass to the person": Hepburn v Chief Constable of Thames Valley Police [2002] EWCA Civ 1841; The Times, 19 December 2002, at para 24. Again, I would reserve my opinion on that, fundamental, question." Lord Scott was more forceful, stating at paragraph 20, "I am not persuaded that a mistaken belief in the existence of non-existent facts that if true might have justified the assault complained of should be capable, even if reasonably held, of constituting a complete defence to the tort of assault. However, and in my view, unfortunately, [this point] has not been contended for on this appeal, its pros and cons have not been the subject of argument, and your Lordships cannot, therefore, conclude that it is the correct solution. But I would, for my part, regard the point as remaining open."
In addition, it was submitted on behalf of the Claimant as follows:
a) In relation to assault and the human rights claims, the burden of proof on all relevant matters is on the Defendant. In relation to the negligence claim, the duty of care being admitted, the burden of proof is on the Claimant.
b) For a state authority to break an arm would plainly amount to inhuman and degrading treatment if arising out of a deliberate and unjustified use of force: see e.g. Sheppard v Home Office [2002] EWCA Civ 1921.
c) As to proof, following Re B (minors) [2009] 1 AC 17 the position with regard to evidence is relatively straightforward. A matter is either proven on the evidence or it is not: see Lord Hoffman [1–2] and Baroness Hale [30–32].
Against that background, I turn to consider the evidence in relation to the events on Friday 9 January 2009.
The Evidence
The Claimant's Evidence
The Claimant gave evidence at the trial. She lived in California USA with her partner. After graduating in 2003 she spent two years volunteering in Palestine and then moved to the United Kingdom. Her work experience is in the field of violence against women. In particular, she worked through college at a women's refuge and in London for the organisation "Rescue" for eight months and thereafter was employed at the charity "Women in Prison" where she supported young women leaving prison to build healthier lives. After leaving Women in Prison, she set up a new project at the "Nia Project", a violence against women charity in London. Whilst employed by the Nia Project, she created an advocacy and training programme for disabled women who had experienced domestic violence. She lived in Palestine between June...
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