The initial use of CS Gas and Taser against the Claimant was found to be lawful, but subsequent use of the Taser was not and the Claimant was successful in establishing liability against the Defendant for trespass to the person and in negligence. This was a challenging and difficult situation for the police officers involved and reminds us that these use of force cases are decided on their own facts.
Background
The Claimant, Michael Gilchrist is almost sixty years old years and has significant learning difficulties. He has autistic spectrum disorder and bi-polar disorder.
On 6 June 2014, the Claimant suffered an episode of acute behavioural disorder and caused damage to his flat. He broke two windows in the block of flats, cutting his hands. He went outside, his hands were covered in blood and he was only partly dressed.
A member of the public telephoned Greater Manchester Police ("the Defendant") reporting that there was a male covered in blood walking around the street and smashing things.
The Defendant's officers arrived and formed the view that the Claimant was acting aggressively and that he presented a danger to himself and others. They used CS Gas and Taser but this proved to be ineffective. They brought the Claimant to the ground and physically restrained him. He was then transported to hospital.
The Claim
The Claimant was granted permission to bring proceedings pursuant to section 139(2) of the Mental Health Act 1983. He brought a claim in negligence and trespass to the person and claimed damages for personal injury.
The Claimant alleged that the Defendant's use of force, including CS gas and Taser, was unnecessary and inappropriate, and that the extent of force used was unjustified.
The Defendant submitted that the Claimant was suffering from an episode of mental illness which caused him to act aggressively and that he was potentially dangerous. The Defendant's case was that it was appropriate and necessary for the Claimant to be controlled and that the methods and extent of force used were reasonable and proportionate in the circumstances.
Use of Force
The issues to be determined were:
- Was the use of any force justified?
- If so, were the methods of force used justified?
- Was the extent and level of force used justified?
The relevant principles are set out in McCarthy v Chief Constable of Merseyside Police [2016] EWCA Civ 1257 by Hallett LJ:
"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."
It was noted in McCarthy that the conditions in which the Police were operating must be taken into account when assessing whether the force used was reasonable in all the circumstances and that "the courts must have regard not only to the rights of the person at the receiving end of the Taser but also to the challenges facing a police officer endeavouring to maintain law and order in a volatile situation."
Judgment
It was found that the initial use of CS Gas by PC Webb was a justified use of reasonable force and that the initial use of Taser by PC Farrell was lawful.
However, PC Schofield’s subsequent use of his Taser was not justified and the extent of the force used was not lawful, "This deployment of Taser was unnecessary, unreasonable and inappropriate." The further use of Taser amounted to trespass to the person and the injury inflicted on the Claimant was a breach of the Defendant’s common law duty of care.
Using the force of the officers available to take the Claimant to the ground and restrain him without using weapons was held to be a reasonable and proportionate response.
Comment
The Judge acknowledged this was a challenging situation for the police officers involved. The Judge noted that the Claimant had presented as angry, covered in blood and the Defendant's officers could not communicate with him. Prior to a relative's explanation, the officers' assumption that the Claimant was an aggressor who, probably, had assaulted someone and needed to be detained, was reasonable. The Judge found that in those circumstances, the officers' initial actions to attempt to bring him under control using CS Gas and Taser were justified, reasonable and proportionate.
However, once the officers had been informed of the Claimant's vulnerability due to his autism, and that his behaviour suggested that he was defensive rather than aggressive, a more cautious approach should have been adopted by the Police. Therefore, the further use of Taser, which had already proved to be ineffective, and following the use of CS gas, was inappropriate.
