McCarthy v Chief Constable of Merseyside Police

Executive summary

Based on his detailed findings of fact, the recorder’s conclusion that the full duration of the discharge for a second time of his Taser by a police constable was unlawful was wrong in law. In all the circumstances, the second discharge had been lawful. The Court of Appeal so held in allowing the chief constable’s appeal against that finding.

Background

In the early hours of 29 September 2012, the claimant was involved in a violent incident in Liverpool. In the course of subduing him, a Merseyside officer kicked the claimant once, placed a knee in his back and Tasered him twice.  

At the liability trial in Manchester County Court, the recorder held the first Taser application discharge was lawful and dismissed the claims based on the kick and knee in the back, but held that the second Taser discharge was unlawful, as was a 2½ minute delay in providing aftercare to the claimant. 

The negligent delay was not challenged, but the chief constable appealed against the finding that the second Taser discharge was unlawful. 

Court of Appeal

The Court of Appeal noted that the recorder’s findings had been based predominantly on the contents of CCTV footage: the claimant himself had no recollection of events. Based on the evidence, the recorder, in a careful and considered judgment, had made a number of findings of fact. Those findings were not challenged, but the conclusion drawn by the recorder was. 

The challenge was threefold:

1. The recorder had set the bar too high in deciding the officer’s use of force was unreasonable.
2. In holding the chief constable liable in trespass (battery) rather than negligence (not pleaded), the recorder was wrong in law.
3. In finding that the whole of the 11 seconds of the second Taser discharge was unlawful, the recorder was again wrong in law.

Hallett LJ and Burnett LJ delivered detailed judgments, the President adding his support for the analysis of Burnett LJ in relation to the second and third grounds. 

As to the first challenge, Hallett LJ noted that the officer had been involved in a “violent, noisy, fast moving and highly charged situation” in which the claimant and another (Clinton) “had committed a vicious attack” on another person inside the hotel. The officer had “genuinely and reasonably believed that the [claimant] intended to attack others and that Clinton was coming at him probably to attack him”. As a result, “in the agony of the moment [the officer] failed to release the trigger after the initial burst of five seconds. He did not intend to keep his finger on the trigger for longer but was distracted by a possible attack.” 

Hallett LJ held: 

“In those circumstances, to find that the use of force was unreasonable was, in my view, to set the bar that the [chief constable] must meet too high.” (Paragraph 22) 

Burnett LJ concurred, concluding that the officer had been “distracted because a man whom he knew to be party to serious violence against [the man in the hotel] and who had already assaulted one of his colleagues was advancing towards him shouting in an abusive and aggressive manner with his arms raised.  It is clear that [the officer] was put in fear of immediate violence…” Burnett LJ concluded that “the combination of findings of fact made by the recorder lead to the conclusion that [the officer’s] actions were reasonable in all the circumstances and that the recorder erred in coming to the contrary conclusion.” 

As to grounds 2 and 3, Burnett LJ observed that the doctrine of trespass ab initio is “best understood as an evidential one, rather than an absolute rule of law”. Having concluded that the initial firing of the second Taser was lawful, the recorder had then been wrong to decide that, when the officer became distracted and kept his finger on the trigger, that action converted the whole of the second Taser discharge to an unlawful battery. As Burnett LJ put it: 

 “It might be thought perverse for a court to find positively that an action was lawful but then, through the alchemy of the doctrine of trespass ab initio to pretend it is unlawful and thereby require compensation to be paid, in substance, for a lawful act.”

In his one paragraph judgment, the President expressly endorsed the analysis of Burnett LJ in that regard.  

Comment

This is a case decided on its own particular facts. The Court of Appeal’s decision is a useful reminder of the need to assess the reasonableness or otherwise of force in all the circumstances of the case. Overly detailed analysis can sometimes lead to that test becoming blurred.