Tag Archives: police

Patience is a virtue (except for the Police!): ZH v. Commissioner of Police for the Metropolis [2012] EWHC 604 (Admin)

March 27, 2012

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Case Transcript: http://www.judiciary.gov.uk/media/judgments/2012/zh-v-police-judgment

The case concerned the appropriateness of the police response to an incident at Acton swimming baths on 23rd September 2008. The claimant was a 16yr old pupil with Autism, epilepsy and various learning disabilities who could not communicate by speech and had a severe aversion to being touched.

On the day in question, ZH was attending the swimming baths for a ‘familiarisation’ visit with his carer (Mr Sateesh Badugu), two other school staff and a number of pupils from the school. Although it was not intended that he would swim or be close to the water, ZH broke away from the school group and stood fixated by the edge of the pool. Unable to persuade ZH to return with the group, the group returned to the school to get additional assistance, leaving Mr Badugu in charge of the claimant. The school now accepts that good practice would have been to have had closed sessions without the public present [146], but no criticism was made of the initial visit, nor of Mr Badugu’s actions in dealing with ZH.

The situation became exacerbated when the Pool manager (Christian Harland), having been notified of the situation by the duty lifeguard (Yvette Burton), became frustrated by what he saw as the “ineffectiveness of the carer” [9] trying to entice ZH away from the pool with crisps. In a panic and in an attempt to break the deadlock, Mr Harland rang the police stating:

“We have a disabled male trying to get into the pool….the carer is trying to stop him and he is getting aggressive…he is quite a big lad” [10]

The initial police response to this incident was in the form of two officers in full uniform (PC Hayley Mckelvie & PC Emma Colley). Following the misleading 999 call, both officers perceived an immediate threat to life, despite ZH having been standing calmly by the shallow end of the pool for at least 40mins with several lifeguards nearby [70].

PC McKelvie went to speak to ZH, without speaking to Mr Badugu first, and touched ZH gently on his back. The Court held that this was the catalyst for ZH to jump in the shallow end of the pool [79]. The police officers justified their actions on the basis that:

“no-one was taking control and the police had to do so, and be seen to be doing so” [15, 76 & 77]

While ZH could not swim, the presence of the lifeguards and the fact that they formed a cordon to prevent him from getting to the deep end meant he was in no imminent danger. During this time, more carers and school staff arrived, however despite ZH being in the water for between 5-10mins, the police did not consult the carers for advice, or for help in formulating a plan, and none was offered to the police [21].

Three further police officers (PC Susan Tither, PC Varinder Sooch & PC Stuart Hunter) arrived at the pool and they then proceeded to forcibly remove ZH from the water. As he was lifted out of the water, he was immediately placed forcibly on his back and all five officers applied force to his body to restrain him [25]. Despite the carers repeatedly asking the police not to restrain him in this way as he was autistic and epileptic [26], two police officers shouted loud clear commands to ZH, while leg restraints and two pairs of handcuffs were applied, during which process, ZH lost control of his bowels.

ZH was then carried from the building and placed alone in a cage in the rear of the police van, still in handcuffs and leg restraints and soaking wet. His carer was not allowed to go into the cage with him, but was able to calm him enough to persuade the police to remove the restraints.

The claimant successfully brought three main actions against the police: trespass to the person (assault, battery & false imprisonment), and claims under the Disability Discrimination Act 1995 and the Human Rights Act 1998.

 

Assault, Battery & False Imprisonment

Although the claimant alleged the unlawful application of force in touching or restraining, the Police argued that their actions were justified under the Mental Capacity Act 2005. While the defendant did not have to have the exact provisions of the Act in mind while they were applying the force they did have to demonstrate that:

  • The claimant lacked capacity  (YES)
  • Any act was in his best interests (NO)
  • There was an imminent danger of severe injury (NO)
  • This belief was genuine (YES)
  • It was a proportionate response to the likelihood and severity of any harm (NO)
  • The response was the least restrictive way of dealing with the incident (NO)
  • The views of the carers were be considered (NO)

The Court held that as there was no emergency at any stage of the incident, the police were not acting in ZH’s best interests. The failure to consult with the carers before approaching ZH, removing him from the pool or restraining him on poolside was also unreasonable [125], unnecessary, and disproportionate [127]. ZH could also have been placed in a warm room within the building rather than the police van. While the Police tried to argue their actions were necessary, this was rejected by the Court as it would circumvent the provisions of the Mental Capacity Act 2005 [44].

 

Disability Discrimination Act 1995, s.21b

The claim under the Act was essentially that it was unlawful for a public authority to discriminate against a disabled person in carrying out its functions, or in failing to make any adaptations where necessary. In particular the Court held that 8 adaptations could have been made:

  • Identify with carers the best way of communicating
  • Take reasonable steps to address the situation
  • Allow the claimant opportunities to communicate with his carers
  • Allow the claimant an opportunity to move at his own pace
  • Application of force was a last resort and should be at the minimum level necessary
  • Responding to advice from carers as the situation developed
  • Adopt alternative strategies to afford protection for C’s safety
  • Prioritising adoption of calm, controlled and patient approach with the claimant

This duty on the Police to make reasonable adjustments and to inform themselves of the situation was a continuing and non-delegable duty throughout the incident. Indeed, even if the school or its carers had been in breach of a duty to inform the police of ZH’s condition [121], this did not excuse the police from liability under the Act [137].

 

Human Rights Act 1998 claim

The claimant was successful in claiming under three headings:

  • Art 3 (inhuman / degrading treatment) – taking into account the whole period of restraint
  • Art 5 (right to liberty) – while the use of restraint can be justified, on this occasion, “its use for a significant period of time on an autistic epileptic young man…was in the circumstances hasty, ill-informed and damaging” [145]
  • Art 8 (right to respect for private life) – the police action was not justified as proportionate in the circumstances.

  

Implications

The Court was at pains to note that the Police did not act in any ill-intentioned way towards the claimant, indeed one might argue that the police were placed in a difficult and volatile situation by a misleading call. It is also true that while the claimant was not in imminent danger, he was in a dangerous situation that had the potential to escalate rapidly. Ultimately however, liability arose because the police jumped in at the deep end by failing to consult with the respective carers or use softer, more persuasive methods of control.

The case raises interesting points in relation to the tension between paternalism (in ZH’s best interests even though it might be distressing to be restrained) and libertarianism (ZH should be allowed to do whatever he wants). As with anything, the context is all-important. If the police had been called when ZH had only just moved and become fixated by the water, or if it had been near the deep-end, or in a busier pool where there was more potential for accidental bumping / injury to the public, then the police response may have been more easily justified.

Ironically, the key failing of the police was not in immediately taking control of the situation, but rather in becoming fixated with an aggressive solution to a perceived problem, and demonstrating an inability to communicate with people around them. If officers had deferred to, consulted or sought advice from the carers (even if it was later disregarded as inappropriate), many of the problems could have been avoided. On the other hand, would the police have been criticised for delegating too much of their authorit? The incident also raises the tricky question of how they should evaluate the competency of any ‘expert advice’ they receive during an incident?

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Scouting for drugs

March 12, 2009

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Source: http://soccernet.espn.go.com/news/story?id=622934&cc=5739 ; http://news.bbc.co.uk/1/hi/world/europe/7913620.stm

 

Spanish police have arrested 11 people and seized over six hundred kg of cocaine (street value £70m+) in connection with a drugs smuggling ring. An official apparently revealed that of the three footballers involved in the arrests, one is still playing in Spain with Segunda side, Rayo Vallecano, while the two other players have retired but used to play for Athletic Bilbao. Two football agents (one Spanish, the other a Serbian-born French citizen thought to be the leader of the ring) were also among the men arrested.

 

Police allegedly found the cocaine hidden in packets among machine parts for wind farms inside a shipping container in Madrid, which had been transported by boat from Argentina. It is widely believed the agents organised the smuggling operation while on a trip to Latin America scouting professional footballers.

 

In a statement, Fifa said it “strongly condemned any criminal activities which may be, even if indirectly, associated to football”.

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honest mum, the tear gas was already on the slide!

March 10, 2009

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Source: (BBC News) http://news.bbc.co.uk/1/hi/england/hampshire/7933706.stm

 Two boys (aged 9 & 12yrs) have been exposed to chemicals after gaining access to a cordoned off area of Victoria Park, Portsmouth, where the council were building a new playground. After playing on the slide, the boy’s eyes started streaming. It is thought that Police in Calais had fired tear gas into the slide when it was being transported from the continent, in an attempt to remove illegal immigrants suspected to be hiding there. Neither the boys, nor the paramedics that treated them, are expected to suffer any long-term symptoms.

 

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Jason Armstead arrested

March 5, 2009

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Source: http://sports.theglobeandmail.com/servlet/story/RTGAM.20090303.wsptbomb3/GSStory/GlobeSportsFootball/?page=rss&id=RTGAM.20090303.wsptbomb3

Jason Armstead (Winnipeg Blue Bombers wide receiver) was arrested and charged over the weekend for domestic violence and resisting arrest. Allegedly he waved a gun at his former girlfriend after chasing her on US Highway 90.

No one was injured and Armstead was later released on bail.

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Holmes recieves misdemeanour charge

March 5, 2009

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Source: http://sports.theglobeandmail.com/servlet/story/RTGAM.20090226.wsptholmes26/GSStory/GlobeSportsFootball/?page=rss&id=RTGAM.20090226.wsptholmes26 ;

Santonio Holmes (Pittsburgh Steelers receiver) waived his right to a preliminary hearing on a misdemeanour marijuana charge after Police found three marijuana-filled cigars in his car, last October 23rd. Holmes was co-operative with the officers and was not arrested. No date has been set for the charge although a formal arraignment is scheduled for April 29th.

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Andy Kennedy Police video released

February 17, 2009

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A police video showing Andy Kennedy (University of Mississippi Basketball coach) being arrested on assault charge has been released. Kennedy and Bill Armstrong (Mississippi basketball operations coordinator) were arrested in downtown Cincinnati on December 18 for allegedly hitting and racially abusing an Arab taxi driver (Mohamed Moctar Ould Jiddou), a 25-year-old native of the northwest Africa country of Mauritania.

Jiddou later told reporters that the incident broke out after Kennedy hailed him and then asked him to pick up his friends. When four other people tried to get in, Jiddou said, he told them he couldn’t take that many because he only had four seat belts.  Jiddou said Kennedy then began yelling, cussing him and calling him “bin Laden, Saddam Hussein,” and hit him in the face.

Kennedy denies all the allegations and in fact has counter sued Jiddou and another witness for $25,000 alleging defamation of character (his wife also alleges a loss of consortium!)

The deposition has been set for 9 March, while the criminal case is set for April.

Source: http://sports.espn.go.com/ncb/news/story?id=3880848&campaign=rss&source=ESPNHeadlines ; http://news.cincinnati.com/article/20090211/NEWS0107/902110338

The Kennedy Counter-Claim: kennedy-counterclaim

Jiddou’s response: jiddou-response

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Drink-Driving Charge

February 11, 2009

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The BBC Website reports that Chelsea and Nigeria player John Mikel Obi has been charged with drinking and driving. The midfielder was arrested at 0530 GMT on Saturday on Fulham Road in west London, near to the Premier League club’s ground, police said. He is due to appear at West London Magistrates’ Court on 3 April.

Source: http://news.bbc.co.uk/1/hi/england/london/7850918.stm

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UEFA Riot Appeal

February 11, 2009

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The names of 29 men suspected of being involved in rioting at last year’s Uefa Cup final have been given to police.  It comes after images of 49 men were posted on the internet and released through the BBC’s Crimewatch programme. Disorder began before kick-off between Rangers and Zenit St Petersburg in Manchester last May. The resulting violence saw officers and supporters clash in the streets, resulting in a number of injuries and criminal damage (Rangers eventually lost the match 2-0).

After studying hours of CCTV footage, pictures of 49 people police want to trace were placed on the force’s website on Tuesday. The suspects posted on the internet were all involved in violent disorder, with some responsible for assault, criminal damage, looting and a variety of other offences.

Source:  http://news.bbc.co.uk/1/hi/scotland/glasgow_and_west/7855228.stm

The images of the unidentified rioters can be found here: http://news.bbc.co.uk/1/hi/in_depth/7854173.stm

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Robinho arrested and bailed

February 11, 2009

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Manchester City forward Robinho has been arrested and bailed by police investigating an alleged sex assault at a nightclub in Leeds on 14 January.

His spokesman, Chris Nathaniel, said: “[Robinho] strenuously denies any allegation of wrongdoing or criminality and is happy to co-operate with the police if further required.”

In a statement Manchester City FC said it had been “liaising with and assisting both the player in question and the authorities in relation to the West Yorkshire Police investigation. “Both parties have been given the full support of the football club. No charges of any nature have been brought against the player and no further statement will be made whilst the investigation is continuing,” the statement added.

Source: http://news.bbc.co.uk/1/hi/england/manchester/7855107.stm

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Violence at Australian Open Tennis (Again!)

January 26, 2009

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Violence erupted again at the Australian Open Tennis match between Novak Djokovic and Amer Delic. Two people were charged with riotous behaviour and discharging a missile, while a further 30 people were ejected from the ground.

“Delic and Djokovic said they were disappointed with the trouble after their good-spirited match. “I’m really sad to hear about that,” Delic said of the scuffles. “There’s absolutely no place for that here. This is a tennis match. Novak and I are friends. We’re both competitors, obviously. In the end it was a fair match, and there was no reason for such things.””

It is not the first time that ethnic tensions has led to crowd violence, indeed in both 2007 and 2008, crowd violence erupted between rival spectators prompting police to adopt a hardline presence at the event.

Source: http://www.guardian.co.uk/sport/2009/jan/23/australian-open-violence-djokovic

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