McCarthy v Chief Constable of Merseyside Police
| Jurisdiction | England & Wales |
| Judge | The Rt Hon Lady Justice Hallett DBE,The Rt. Hon. Lord Justice Burnett |
| Judgment Date | 13 December 2016 |
| Neutral Citation | [2016] EWCA Civ 1257 |
| Docket Number | Case No: B3/2015/3848 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 December 2016 |
[2016] EWCA Civ 1257
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Lady Justice Hallett
VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)
and
Lord Justice Burnett
Case No: B3/2015/3848
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT AND FAMILY COURT
RECORDER ALLEN QC
3YS05378
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Graham Wells (instructed by Weightmans LLP) for the Appellant
Ms Alison MacDonald (instructed by Sophie Khan & Co) for the Respondent
Hearing dates: Tuesday 15 November 2016
Approved Judgment
Introduction
In the early hours of 30 September 2012, the Respondent became involved in a violent incident outside the Premier Inn hotel, in the Albert Dock area of Liverpool. Two of the Appellant's officers, PC Burns and PC Woodman, attended. In the course of subduing the Respondent, PC Burns kicked the Respondent once, placed a knee in his back and tasered him twice ("Taser 1" and "Taser 2"). The Respondent brought a claim for damages against the Appellant. By the time of the trial on liability before Mr Recorder Darryl Allen QC, the claims had narrowed to claims for battery based on Taser 1 and Taser 2, for assault based on the kick and knee in the back and for negligence based on a failure to take proper care of the Respondent after Taser 2. The Recorder found for the Appellant on the Taser 1 battery claim, against the Appellant on the Taser 2 battery claim, for the Appellant on the assault claims and against the Appellant on the claim in negligence. In this appeal, we are concerned solely with the Recorder's finding on the Taser 2 battery claim.
Facts
The Respondent, who says he has no recollection of the events of the evening, did not give evidence. His case depended on the CCTV footage and statements from the Appellant's own officers, experienced in the use of Tasers, one of whom trained PC Burns. The Appellant relied upon a number of witness statements but only two witnesses gave evidence, namely PC Burns and the hotel's duty manager Mr King. The only evidence challenged was that of PC Burns. It is clear from the judgment that the Recorder relied almost exclusively on the CCTV footage to reach his conclusions.
The footage shows that the incident began inside the hotel with the Respondent's friend Clinton head-butting a Mr Jonathan Morgan. The scuffle spilled out onto the street. Morgan and Clinton started fighting. Morgan retreated to the hotel. The Respondent and Clinton pushed aside security staff and attacked Morgan in the reception area of the hotel. They punched him to the ground where they both kicked and punched him as he lay helpless. PC Woodman and PC Burns arrived at the hotel. PC Woodman, although physically obstructed by Welch (another of the Respondent's group) managed to get into the reception area. The Respondent and Clinton decided to make good their escape. The Respondent evaded PC Woodman but turned back and knocked him to the ground, with considerable force, to enable Clinton to get past.
By this time PC Burns was trying to deal with Welch, who was verbally and physically aggressive. PC Burns drew his Taser, removed the safety catch and pointed it at Welch. The Respondent and Clinton burst out of the hotel with their hands in front of them and ran directly at PC Burns. PC Burns fired his Taser for the first time (Taser 1) with approximately a six second charge. The Respondent fell onto PC Burns and both fell down the steps. The Respondent attempted to get to his feet and PC Burns delivered a "distraction" kick. This failed to keep him still and the Respondent ran off a short distance towards others. PC Burns fired his Taser again (Taser 2) for ten to eleven seconds. The Respondent fell to the ground and suffered a cardiac arrest; there is no evidence, as yet, to say at what point he suffered the arrest. He was resuscitated at the scene but continues to complain of consequential symptoms.
The following facts and findings of fact are said to be material:
i. A Taser is a pistol like device that shoots tethered probes from a cartridge. When the safety catch is released and the trigger is pulled, a single cycle of a Taser is a pre-set 5 seconds. It will continue discharging electrical pulses until the pressure on the trigger is released. The length of any discharge can be downloaded from the Taser but the measurement is only approximate. The internal clock rounds the time up every ten milliseconds. Thus, a cycle time of 3.009 seconds will be recorded as three seconds and 3.010 will be recorded as four seconds.
ii. Considerable training and guidance is given to officers in the use of Tasers. Officers are taught to deploy the Taser for a five second cycle in the first instance. In the training environment an officer who maintains pressure on the trigger thereafter will fail the course. In a hostile environment, however, it is left to the officer to assess what it is necessary, appropriate and justifiable by way of further discharge.
iii. In stressful conditions a combination of chemicals in the body may cause an officer to experience a condition known as "gorilla gripping" (freezing and loss of fine motor movements) and he may suffer from "perception disorder" in relation to time and the magnitude of the threat.
iv. PC Burns saw the altercation between the Respondent and Clinton and Morgan outside the hotel and saw the Respondent and Clinton chase Morgan into the hotel.
v. PC Burns saw Welch trying to obstruct PC Woodman and acting aggressively towards him.
vi. PC Burns saw the Respondent push PC Woodman to the floor with considerable force.
vii. As the Respondent and Clinton came out of the Premier Inn with their arms out, there was every chance that they would assault P.C. Burns if necessary. The Respondent knocked PC Burns down the stairs.
viii. When he fired Taser 1, P.C. Burns genuinely and reasonably believed that he was at risk of attack by the Respondent and Clinton.
ix. When he fired Taser 2 at 02.51.22 PC Burns genuinely and reasonably believed that the Respondent was about to attack other males outside the Premier Inn and fired to prevent him attacking them.
x. The Respondent fell to the ground within one or two seconds of Taser 2 being fired.
xi. PC Burns kept his finger on the trigger for approximately eleven seconds, having intended to fire it for five seconds. The officer accepted the use of force for the further six seconds was excessive and unnecessary but said it was "unintentional".
xii. Had PC Burns fired for five seconds, his use of force would not have been unlawful.
xiii. P.C. Burns was not physically overwhelmed by the actions of the Respondent or Clinton. However, on the balance of probabilities he was distracted by Clinton who advanced towards him in an aggressive and abusive manner with his arms raised at 02.51.26. PC Burns turned the Taser towards Clinton although the probes remained in or attached to the Respondent, so it could not be used against Clinton.
xiv. At 02.51.28 Clinton started to run away.
xv. P.C. Burns' failure to exercise essential and appropriate control of the Taser was not justified by the actions of Clinton and, in those circumstances, was unreasonable.
The Law
Considerable time was spent in the court below and in written submissions before us on the ingredients of the law of trespass to the person, in particular, the extent of the mental element required. However, it became common ground during the course of argument that the only principles of law relevant to our consideration can be shortly stated. The tort of battery requires the actual infliction of unlawful physical contact. The act of battery itself may be intentional or reckless but an intention to injure is not required. Once a prima facie battery is established the burden of proof in a civil action shifts to the defendant to justify the battery, in this case by the Appellant's establishing that his officer acted in lawful self-defence, the prevention of crime or to effect an arrest. Section 3 of the Criminal Law Act 1967 empowers any person to use such force as is reasonable in all the circumstances. Section 117 of the Police and Criminal Evidence Act 1984 provides that a constable exercising any powers under the Act (for example arrest, search, and detention) may use reasonable force.
Grounds of Appeal
Mr Wells for the Appellant insisted he does not challenge the primary findings of fact but criticised the finding of battery on a number of bases. In summary, his grounds are:
i. In deciding PC Burns' use of force was unreasonable, the Recorder has set the bar too high for a police officer who discharged his Taser in genuine fear for his own safety and or for the safety of others. The Recorder has thereby failed to make proper allowance for the circumstances as they presented to the officer.
ii. In holding that the Appellant was liable in trespass rather than in negligence (which was not pleaded against the Appellant on this point) the Recorder erred in law.
iii. In finding that the whole eleven seconds of the second application of the Taser was unlawful, the Recorder erred in law.
Discussion
On the question of whether the Recorder set the bar too high, the competing arguments are straightforward. On the one hand it is said that in reaching the conclusion that the officer's use of force in Taser 2 was excessive the Recorder has failed to give sufficient weight to his own findings of fact. This was a fast moving, highly charged and violent situation in which two...
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