McDonnell v Metropolitan Police and another
A review of a case which sought to determine whether the fracture of the claimant's arm during an arrest was indicative of unreasonable and excessive…
Court of Appeal (Aikens LJ, LJ McFarlane and Bean LJ)
In concluding that a fracture of the claimant’s upper arm when he was taken to the ground to be arrested was indicative of unreasonable and excessive force, the trial judge had placed too much emphasis on the fracture rather than the act itself.
In early 2008 the claimant met and received from a friend a package containing 1kg of cannabis. Without knowing it, he had been under surveillance for some time by the Metropolitan Police and the Serious Organised Crime Agency (SOCA). Officers from both organisations, in plain clothes, saw the package being handed over.
He crossed the road towards his front door, walking briskly but not running, followed by PC Marwick. The officer’s plan was to take him to the ground because he was trying to enter his house and may destroy evidence or escape. The officer further stated, and the judge accepted, that in many years’ service he had experienced individuals in possession of large amounts of drugs with weapons close to their front doors or other easily accessible areas for their protection. After the event, a machete and gas canister were found inside the house.
In terms of the mechanism of the restraint, the officer described approaching the claimant from behind. As he was almost alongside he put his right arm against the claimant’s shoulders and grabbed the right shoulder, grabbing the left shoulder with his left hand. He fell on top of the claimant, on to a part concrete and part gravel surface. In acting as he did, the judge accepted that PC Marwick largely followed approved procedures. The SOCA officer arrived seconds later and the two officers then handcuffed the claimant.
The claimant suffered an undisplaced fracture at the upper end of his right humerus. After considering the medical evidence, the judge concluded that the fracture resulted from impact with either the garden wall or ground when the claimant fell.
The claimant, who had subsequently been convicted of an imprisonable offence, secured the necessary permission under section 329 of the Criminal Justice Act 2003 to bring his proceedings. His trial eventually came before His Honour Judge Madge, who concluded that the fracture was probably caused by a direct blow either when the claimant hit the ground, or when his shoulder hit the wall on the way down. The judge held that “whichever mechanism caused the fracture, there can be no doubt that significant force was used by Constable Marwick in taking Mr McDonnell to the ground”.
The judge concluded that the force used was more likely than not unreasonable and excessive: “In my judgment, it is artificial to ignore completely the result of the force used, especially where a suspect is taken to the ground with force, very close to a brick wall, which can potentially cause injury. In my judgment, the injury actually suffered has to be a factor, although it is just one such factor. This may be a borderline case, but I have come to the conclusion that the force used by Constable Marwick probably was not reasonable. Having regard to all the circumstances, in my judgment, it is more likely than not that it was unreasonable and excessive. He and [the SOCA officer] could have prevented Mr McDonnell from entering the house without taking him to the ground”.
The judge then went on to consider whether the statutory defence under section 329 of the Criminal Justice Act 2003 applied. That section provides a defence if a defendant can prove that various conditions are met and that “in the circumstances, his act was not grossly disproportionate”.
On that point, the judge held the test was subjective and accepted that the force used fell short of being grossly disproportionate. As a result the claim failed.
The claimant subsequently appealed against the judge’s findings on section 329. The Commissioner cross-appealed, based on the judge’s findings of fact, against the decision that the force was unreasonable or excessive.
Court of Appeal
Lord Justice Bean delivered the judgment of the court, with which Lords Justice McFarlane and Aikens agreed.
The court did not agree with the claimant’s submission that it was precluded from re-examining the judge’s evaluation of excessive and unreasonable force. The judge’s own findings of primary fact were available to inform the Court of Appeal’s review.
The court noted that the officers honestly believed the claimant was in possession of a significant block of cocaine with intent to supply, that men in that position often sought to avoid arrest and use weapons, that the claimant was close to his front door and that they were worried there were weapons inside. PC Marwick honestly believed it was necessary to take the claimant to the ground and followed relevant guidance. As Lord Justice Bean concluded:
“Against the background of these findings of fact I consider that the judge was plainly wrong to find, even as a ‘borderline case’, that it was ‘more likely than not that [the force used] was unreasonable and excessive”.
The judge had placed too much emphasis on the result of the force rather than the act of taking the claimant to the ground. The actions of PC Marwick were intended to take the claimant to the ground, not inflict injury. Had the tackle been less vigorous, then the claimant’s shoulder may not have struck the wall, but that did not make the force used unreasonable, excessive or disproportionate.
Having concluded that the judge was wrong to find the force excessive, there was no need to consider the claimant’s appeal in relation to section 329.
This is a useful case reminding those assessing the reasonableness or otherwise of force not to place too great an emphasis on the outcome of the force used.
The case is also interesting in as much as the appeal flagged the claimant’s intended arguments regarding the application of the section 329 statutory defence. The claimant submitted that the word ‘grossly’ in section 329 was otiose and added a gloss to ‘disproportionate’ that was inconsistent with the approach to be followed under section 3 of the Human Rights Act. As a result, grossly disproportionate should be equated with disproportionate or unreasonable.
The claimant also submitted that denying him a remedy in damages, after a finding that he had been subjected to excessive and unreasonable force, deprived him of a right to effective access to the courts under Article 6. Due to the court’s reversal of the judge’s finding on unreasonable force in the first place, these points remain to be argued and determined in subsequent cases.
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Nick Peel, Partner on 0151 242 9453 or firstname.lastname@example.org.