Victoria Clark v The Chief Constable of Merseyside Police
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ritchie |
| Judgment Date | 16 October 2023 |
| Neutral Citation | [2023] EWHC 2565 (KB) |
| Court | King's Bench Division |
| Docket Number | E41YX881 |
[2023] EWHC 2565 (KB)
Mr Justice Ritchie
E41YX881
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
Emma Favata (instructed by Broudie Jackson Canter) for the Claimant
Michael Armstrong (instructed by Weightmans) for the Defendant
Hearing date: 5 th October 2023
Judgment approved by the Court for handing down. This judgment will be handed down by the Judge remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be at 10:00 am on Monday 16 th October.
The Parties
The Claimant is a member of the public who was arrested and detained by the Defendant.
The Defendant is the Chief Constable of Merseyside police whose officers arrested and detained the Claimant.
Bundles
For the hearing I was provided with an appeal bundle, a video clip, a supplementary bundle, a bundle of authorities and skeleton arguments.
Summary
This is an appeal from a Judge and jury decision after a 12 day trial. At trial the Claimant lost on all issues and the claim was dismissed. The appeal was made on many grounds, most were not given permission to proceed, but on 27.10.2022 Heather Williams J granted permission to the Claimant to appeal on grounds 1–3, 9 and 11.
The Issues
The issues for me to decide are as follows:
(1) (Grounds 1–3) was Recorder Grundy (the Recorder) wrong to withdraw from the jury the issue of whether the Claimant was assaulted after “the bite” (I shall explain that term a little later). Within that issue are two sub issues: (a) was the Recorder wrong to find himself as a fact that the Claimant grabbed the ankle of Detention Officer Newbury (DON)? (b) Was reasonable force used by DON to remove the Claimant's grip on her ankle (if she did grab it)?
(2) (Grounds 9 and 11) was the Recorder wrong in law to rule that: Inspector Foulkes lawfully detained the Claimant at 02.23 on 13.3.2016, and Inspector Forsyth lawfully detained the Claimant at 09.59 on 13.3.2016?
The Pleadings and the chronology of the action
On 8/9 th March 2016 the Claimant was certified as in need of detention under the Mental Health Act 2003 by two psychiatrists at Fazakerley Hospital. There were no inpatient beds so she was released. On 12 th March 2016 the Claimant was mentally very unwell and attacked her mother (M) and then was in the process of injuring herself at home in her own kitchen by lying on the kitchen worksurface and putting a wire from a boiler around her neck. The police had been called by M and arrived to see this. They entered her home (M had given them the key) and the Claimant allegedly attacked them violently and was arrested at 20.15 hours then taken to the police station. She was detained in a cell overnight and released into the detention of the mental healthcare authorities at around 17.24 in the afternoon on the 13 th.
During the process of getting the Claimant into the overnight cell at the police station 4–5 officers lifted the Claimant by her arms, legs and torso and carried her in. She was put on a mat on the ground face down and her handcuffs were removed. Her clothing was cut off and she was given a gown. During this process the Claimant struggled and at one stage bit her teeth into the inner thigh of DON. This led to DON hitting her in the face to make her release the bite. DON asserted that after that part of the struggle the Claimant used her right hand to grab DON's left ankle and held on, so DON punched the Claimant repeatedly in the right arm to release the grip. It is this part of the incident which is at issue in the appeal. In addition the decisions to continue detention under the Police And Criminal Evidence (PACE) Act 1984 taken at 02.23 and 09.59 are in issue.
Pleadings — the alleged ankle grab and alleged assault
By Particulars of Claim dated 7.5.2018 the Claimant made a wide range of claims against the Defendant. I shall not mention any of them save those that are relevant to the appeal. The relevant details which she pleaded were that:
“9. ….Her clothing was forcibly removed, her pyjamas were ripped off her. Her bra was ripped off and she felt someone's hands go underneath her pulling her knickers off. When she was thrown onto the mat she missed it was the thrown onto the concrete floor. The Claimant was left in the cell completely naked.
“10. At this time the Claimant did not know what was going on, where she was or who she was with despite the individuals dealing with her being dressed as police officer. She thought she had been kidnapped and was going to be killed. … She was on the floor hearing voices telling her to break her neck and kill herself and that she needed to die.”
“26. Assault All uses or threats of hostile force set out herein constituted assaults … i) the officers used force against the Claimant during her detention for which there was no lawful justification; and ii) Further or alternatively, the degree of force deployed by the Defendant's officer was unreasonable and/or unnecessary and/or excessive in all the circumstances of the case.”
“27. Particulars of Assault The Defendants officers used force … d. At the police station the Claimant was restrained with force, punched … g. Force was used against the Claimant throughout her detention.”
In the Defence the Defendant denied all the claims and descended into particulars. At para. 6(XVI) the Defendant pleaded as follows:
“At that point, the Claimant grabbed out at DON's ankle at which point DON and DO Crowther tried to pull the Claimant off DON. The Claimant was punched repeatedly to her right arm in an attempt to get the Claimant to release her grip. When the Claimant released her grip, the strikes ceased.”
In the Reply the Claimant dealt with other matters and made no factual pleading about the alleged ankle grab. Under r.16.7 of the Civil Procedure Rules the Defendant's assertions were impliedly not admitted and needed to be proved by the Defendant,.
The allegedly unlawful detentions
In the Particulars of Claim (POC) the Claimant asserted that she was wrongfully arrested because she had not committed any offence. The jury rejected that claim so the Recorder ruled that she was lawfully arrested and lawfully detained at the police station after arrival and lawfully put into her cell. However, her continued detention is the subject of Grounds 9 and 11 of her appeal. In paras. 21(f – m) of the POC the Claimant set out her claims of unlawful detention on the basis that she was unfit to be detained through mental ill health and her need for medical care. The Claimant asserted that there was no prospect that she could be properly interviewed about the charges of assault levelled against her because she could not understand or answer. The Claimant asserted that the Defendant failed to take her to a place of safety under the Mental Health Act 1983 (MHA) in breach of the PACE Code C para. 9.5. I have set the PACE Code C out below. (I work on the basis that it was the 2014 version the Claimant relied upon but no date was pleaded and the authorities bundle did not contain it.)
In the defence the Defendant denied that the police knew or ought to have known that the Claimant was suffering from a mental illness and required immediate medical treatment or to be taken to hospital. The Defendant relied on her recent release from hospital a few days before. It was asserted that the Defendant was concerned that the Claimant was intoxicated on drink or drugs and a drugs test had been authorised. She was placed in to cell to “rest” until the following morning. The Defendant admitted that at 00.53 on 13.3.2016 the Defendant had received “unverified” information that the Claimant had been “sectioned” a few days before (probably from M). The Defendant relied on Williamson v Att. Gen. of Trinidad [2014] UKPC 29, to plead that the Claimant's pleading failed to specify the period of unlawful detention so the whole period stood or fell on the original decision to detain. The Defendant asserted the grounds for detention were reasonable.
The Judgment and the decisions appealed
The Recorder did not permit the decision over whether the Claimant grabbed DON's ankle to be left to the jury. Instead he decided the facts himself. He decided on balance that the Claimant did grab DON's left ankle (Judgment paras. 5–12) and determined that the force used by DON was reasonable to release the hold. He stated that he had applied the test in McDonnell v The Comm. Of the Met Police [2015] EWCA Civ. 573, per Bean LJ at para. 28, namely whether the force used by the officer was necessary, reasonable and proportionate in the circumstances. He also took into account that when making the decision the officer may not have had a lot of time to make a measured calculation using “jeweller's scales”, taking into account the judgment of Geoffrey Lane J in Reed v Wastie [1972] Crim. LR 221.
Not all of the Recorder's reasoning given on 6.5.2022 for refusing to leave the issue of whether the Claimant grabbed DON's ankle to the jury was in the transcripts provided to this Court. What the transcript recorded was at paras. 3–4. The Recorder clearly held that there was no evidence that the Claimant was punched in the face after she released her bite on DON's leg. However, the written transcript also stated that the Recorder referred back to what he had said originally when refusing to leave this issue to the jury. There is no transcript of that reasoning. Counsel provided the best notes which they had of what was said and I am very grateful for that. The notes are below:
“ Claimant's note
I will give a ruling the issues now questions put to the jury and whether in fact there was punches to Victoria Clark either to the...
To continue reading
Request your trial