England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		1st December 2014

Her Honour Judge Coe QC:

1. On 4^th April 2010 the Claimant James Browne (known as Jimmy) was walking along Kentish Town Road with the comedian and television celebrity Noel Fielding. It was Easter Sunday morning at about 10:30am. They had been to a party and had not slept. Mr Fielding describes having performed a gig at the 100 Club and then gone for drinks at the Hawley Arms before going back to a friend's flat where there were 15 or so people. The Claimant had been drinking in the public house from about 10 o'clock in the evening and had been at the party.
2. Mr Fielding was still wearing his stage outfit consisting of dungarees, gold boots and a ladies' checked jacket. At that time his hair was dyed yellow blonde. Mr Browne was more conservatively dressed. The Claimant had worked at various times as a close protection security guard for celebrities and similar figures. He said that he had been in the habit of "looking out" for people such as Mr Fielding who might be the subject of unwelcome attention by reason of their celebrity status. He was not Mr Fielding's "minder". The two were known to one another and Mr Fielding described Mr Browne as somebody he had known for some time. Mr Browne described Mr Fielding as a friend. I do not think that they were close friends but they were well known to one another. It was Mr Fielding's intention to go to a local supermarket to buy bread, milk and so on. Mr Browne told me that he had the intention to accompany Mr Fielding but that he also wanted to buy some cigarettes.
3. Having been in Mr Browne's words "almost the last men standing" at the party Mr Browne who was, it seems, known for his "minding" skills was asked to clear up some wraps and drug paraphernalia as he left. He did so and picked up eight or so paper wraps containing what he knew to be likely to be drugs or traces thereof. It would not be realistic as I find, to consider that he would have thought that there were significant quantities of drugs since it is unlikely that they would have been left behind. In any event he picked them up and put them in his pocket intending to dispose of them outside of the premises, presumably in a public litter bin.
4. As they walked along the road the Claimant and Mr Fielding were seen by two police officers, Police Constable O'Leary and Police Constable Tucker (now Mr Tucker) who were in a patrol car. The officers told me that they recognised Mr Fielding and believed that the two men were showing signs of drug use and so they turned the car round to follow them intending to stop them and talk to them.
5. In the course of the ensuing incident Mr Fielding was restrained, handcuffed and searched and then taken to the police station where he was subjected to a strip search. No drugs or drug related materials were found on him and he was subsequently released without charge or further action. Mr Browne was followed by PC O'Leary into the Everbest convenience store and forcibly removed and taken outside and restrained and handcuffed. He, too, was searched and the various wraps were found. An ambulance was called to attend to Mr Browne who had by then been arrested. He was taken to the Royal Free Hospital.
6. In the course of the incident Mr Browne suffered a severe, comminuted fracture of his right tibial plateau known as a Schatzker type 6 fracture for which he was treated in hospital. This was a significant injury. He was in hospital for about a month. He has undergone several further operations and has ongoing difficulties as identified below.
7. The wraps were found to contain traces of Mephedrone which was not at the time an illegal drug. One of the wraps contained 12mg of cocaine. No further action was taken by the police in respect of this very small amount, in fact little more than a trace, of cocaine.
8. This case concerns Mr Browne's claim for damages for assault and battery against the police in respect of the knee injury and in essence the question for me is how he came by that fracture in the course of the incident I have described.
9. It is the Claimant's case that he was the subject of a deliberate assault in the Everbest store by PC O'Leary who struck him on the back of the head and kicked him before carrying him out and forcing him to the ground. The defence case is that: Mr Browne failed to comply with the police request to be searched; attempted to flee; attempted to discard the drug wraps by swallowing them or otherwise; offered violence and struggled when PC O'Leary was attempting to remove a wrap from his hand or prevent him from swallowing it; and that the police officers used only that force which was reasonable and required to carry out their search and arrest and/or to prevent harm to Mr Browne by way of ingestion of the drugs he was trying to swallow. The defence suggests that Mr Browne must have come by the knee fracture when he was being forced to the floor by PC O'Leary outside of the shop, but that this was an unfortunate accident brought about by the reasonable force required in light of Mr Browne's resistance.
10. At the beginning of the trial I gave permission to both parties to amend their pleadings. By his Particulars of Claim the Claimant claims damages for assault and battery, negligence and breach of the Human Rights Act 1998. It was indicated on his behalf at the beginning of the opening that the claims under the Human Rights Act and in negligence were not pursued. His claim is for assault and battery. He pleads that having been approached by the police and it not having been indicated to him that they wanted him to stop he went into the shop. He was followed by PC O'Leary who assaulted him from behind without warning, striking him on the back of his head and grabbing him from behind. His nose and throat were grabbed and his nose was later found to have been broken. The Claimant says that he was then viciously kicked in the leg by Officer O'Leary and fell to the ground and lost consciousness due to the pain. PC O'Leary is then alleged to have picked him up from behind and carried him out of the shop. It is the Claimant's case that there was no basis for any force to be used against him in the absence of any lawful justification for his arrest and/or detention at the scene. By the amendment it is specifically pleaded (at paragraph 14) that "…the failure to comply with statutory provisions such as section 2 of the Police and Criminal Evidence Act 1984 prior to the carrying out of a "drugs search" would mean that there was no lawful justification for the Claimant's detention for the purposes of a search or the use of force to effect such a detention". Alternatively it is said that if there were grounds for the application of force that the force used was unreasonable. The Claimant claims aggravated and exemplary damages as well as general and special damages arising from the injuries and their consequences.
11. By his Defence the Defendant says that his officers saw the Claimant and Mr Fielding (who they immediately recognised) and that both men were showing signs of drug use. The Claimant is described as having his eyes wide open and stumbling around. It is said that his jaw was wobbling and he had no control over it. It is averred that he looked dishevelled, unshaven and tired. In consequence the officers wanted to speak to the Claimant and Mr Fielding about their behaviour and presence in the area. As they turned their patrol vehicle round they saw the Claimant knocking on a taxi window and it appeared that he was trying to get inside. The taxi drove off and then the officers pulled their vehicle up alongside the pair and PC O'Leary asked them what they were doing and why the taxi had driven past them. It is alleged that neither answered relevantly or coherently but looked as if they were "high". PC O'Leary spoke to another man on the pavement who was behaving oddly, but who was not connected with the Claimant or Mr Fielding. PC Tucker approached Mr Fielding, identified himself and asked whether Mr Fielding was feeling alright but he gave no audible response and maintained a fixed stare. It is alleged that he had large pupils and appeared uneasy.
12. PC O'Leary apparently watched as the Claimant went into the Everbest Food and Wine convenience shop. He followed him and shouted to the Claimant to stop for police, but was ignored. He walked quickly after the Claimant and as he did so could see that the Claimant's hand reached into his jacket and he was trying to remove something from his pocket. It is alleged that PC O'Leary thought that this could be illegal drugs that the Claimant was trying to dispose of or possibly a blade or a knife. The Claimant appeared to look over his shoulder as if aware of PC O'Leary's presence and was again asked to stop for police, but carried on walking, deliberately ignoring the officer. The Claimant made eye contact with PC O'Leary who informed him he was a police officer. It is averred that the Claimant continued to display signs of drug use. Constable O'Leary noticed something in the Claimant's right hand which looked like a white wrap and the officer asked the Claimant what was in his hand and advised him that he was being detained for a drugs search. Because the Claimant continued to ignore him Officer O'Leary took hold of the Claimant's right wrist and as he did so the Claimant tried to break free. He tried to slip the officer's grip and the officer tried to get the item from his hand. PC O'Leary was unable to control the Claimant because he was resisting and struggling trying to escape from his grip and becoming increasingly violent. They were about 15 yards inside the shop and the officer formed the view that it was necessary to remove the Claimant from the shop as he was still struggling violently. Officer O'Leary, it is pleaded, began to fear for his own safety anticipating further violence given the degree of resistance being offered. He was shouting instructions to the Claimant that he was being detained for a drugs search. The officer also had what is described as a grave concern the Claimant may try to swallow whatever he was trying to conceal in his hand which could have been life-threatening to the Claimant. He took the decision to get the Claimant outside the shop as quickly as possible and grappled with the Claimant and eventually managed to get him in a double arm lock from behind. He picked the Claimant off the ground with both his arms around the Claimant's torso. The Claimant is alleged to have been struggling violently and PC O'Leary had to ensure that his arms were pinned into his body to prevent him from swinging them out towards him.
13. Having carried him out of the shop the officer decided to take the Claimant immediately to the ground because he was struggling violently and he could not control him. It is pleaded that he continued to have great concern that the Claimant would swallow whatever was in his hand and that the officer feared possible further violence and that the Claimant may have been concealing a weapon in his other hand. It is alleged that the officer lowered his right shoulder and then the Claimant's right shoulder and took him to the ground and as a result of the fact that the Claimant was struggling and the combined momentum from taking him to the ground, the officer was also pulled to the ground and fell on top of the Claimant's right side. He then asked for help from PC Tucker and the Claimant is said to have continued to struggle violently. It is pleaded that both constables had positioned themselves on top of the Claimant and were trying to get his hands from under his body but the Claimant continued to resist violently. It is said that the Claimant almost got the white wrap to his mouth but the officers managed to handcuff him behind his back and the wrap of paper fell from his hand.
14. He was then positioned against the wall when he was formally arrested and told of the reason for his arrest. He was cautioned. The officers called for an ambulance apparently because they were concerned that the Claimant might have ingested drugs. It is said that he was also complaining about a pain in his left (sic) leg. When searched a total of eight wraps were found in the Claimant's possession together with some cash in notes which were "crushed".
15. It is alleged that whilst in the ambulance the Claimant said "you've got me with a gram of gear. I've been caught with a narcotic substance. Wow". He is also said to have made reference to his having spent 18 years in prison for bank robbery and also that he had been in the paratroopers.
16. PC Tucker went with the Claimant to the Royal Free Hospital where he was treated.
17. The Defendant denies the allegations made against his officers and specifically denies assault and battery. The further amendment which I allowed at the beginning of the trial in response to the amendment to the Particulars of Claim avers that PC O'Leary complied with section 2 of the Police and Criminal Evidence Act 1984 and that "…the Defendant relies upon section 3 of the Criminal Law Act 1967 and/or section 117 of the Police and Criminal Evidence Act 1984 and/or the power at common law entitling PC O'Leary to justify the use of force against the Claimant".
18. By paragraph 12 of the Defence, the Defendant pleads contributory negligence against the Claimant on the basis that he resisted the search and arrest in such a manner as to cause himself injury and struggled violently inside and outside the convenience store. It is further alleged that he caused himself to be under the extreme influence of drink and/or drugs, so that he was acting irrationally and in a violent manner and that he failed to heed the instruction of PC O'Leary to stop. Further it is contended that he attempted to swallow drugs in the presence of the police such that the police were provoked to use force to prevent that from happening.
19. Apart from the witness evidence I heard I also had the benefit of some CCTV footage. Some was from a manned council camera and some was from the CCTV outside the Everbest shop. The Everbest shop had internal CCTV cameras and footage was available of the incident inside the shop. Unfortunately it seems that the DVD containing that footage was damaged in transit on the movement of files between offices of the Defendant's solicitors. It was apparently an original. There do not seem to have been any copies. The disc was cracked. The information from the Defendant's solicitors is that their enquiries revealed that there were no other copies and that the information could not be retrieved from the cracked disc. This is particularly unfortunate when that evidence was likely to be of the utmost importance.
20. On behalf of the Claimant I heard evidence from the Claimant himself and Mr Fielding. I also heard from one of the paramedics who came in the ambulance to take Mr Browne to hospital. I heard evidence from Police Constable O'Leary and Mr Tucker (PC Tucker as he then was). I have three bundles of documents two of which (Bundles B and C) contain the Claimant's medical records. I also have a joint medical report from Mr Jason Payne-James which deals with causation and which is a combination of the original report and the answers to questions from the parties. As this is a joint agreed report I heard no evidence from Mr Payne-James.
21. Apart from the medical records themselves, I have at Tab 14 of Bundle A letters from the Claimant's treating consultant Mr Ahrens setting out the nature of the injury and treatment. Statements were also put into evidence unchallenged from Miss Harwood and Miss Berg on behalf of the Claimant as to the consequences of the injuries to him.
22. Having heard the case over the course of a short hearing (one and a half days for evidence) I do not consider it appropriate to rehearse that evidence in detail which would make this judgement unreasonably long. By reference to the pleadings I have set out above the matters of fact which seemed to be in dispute between the parties and I will make my findings of fact by reference to the evidence and, of course, on the basis of my assessment of the witnesses from whom I heard.
23. As between the parties, the law is not really in dispute. It is summarised at paragraphs 14 – 19 of the Claimant's skeleton argument. The Defendant alleges that the Claimant was being detained for a drugs search. By s.23 (2) of the Misuse of Drugs Act 1971 the police have the power to search a person and detain them to search them if they have reasonable grounds to suspect that they are in possession of a controlled drug. Before exercising that power the police officer must comply with s.2 of the Police and Criminal Evidence Act 1984. It is mandatory and failure to comply renders the search and any force used to effect it unlawful. In addition the police have powers under s.3 Criminal Law Act 1967, s. 117 of the Police and Criminal Evidence Act 1984 and at common law.
24. Counsel for the Defendant set out in his closing submissions document a "route map" of the legal issues and a suggested method by which I should apply my findings to the legal framework here. It is a very helpful document for which I am grateful. Counsel for the Claimant agreed that it sets out the legal framework accurately and also addressed me on the basis that I should approach the issues of law in the way set out therein.
25. I first heard evidence from Mr Fielding. I accept his evidence about the events leading up to the incident. Having done the gig at the 100 Club he had been to the public house and he then went back with others to the flat of a friend of his in Kentish Town. He had been drinking and had been up all night. He agreed that he was very tired and he describes things as being a bit "blurry". As they reached the Everbest shop the Claimant told him that he was going to buy cigarettes and Mr Fielding indicated that he was not going to go in, but continued walking toward Sainsbury's. As Mr Browne was approaching the shop Mr Fielding became aware of the police car pulling up on the kerb behind them. He did not think that the police had stopped for them and assumed they were there for some other reason. He described how the next thing he knew he was being grabbed from behind and manhandled to the ground by one or more police officers. He said he had no warning at all it all happened very quickly and out of the blue. He had never been arrested before and it was a massive shock for him. He assumed it was a mistake. He made the decision to be passive. He was handcuffed while he was on the ground face down. He says that he was not told at the time why he was stopped and forced to the ground and handcuffed. He was moved, together with the Claimant, still handcuffed onto the pavement by the shops. The officer asked him if he knew what was going to happen to him and he said "no". Mr Fielding says this is the first time that either officer spoke to him. He was then told that he would be taken to the police station and strip searched and they were waiting for a van to take him there. When he was face down on the ground being handcuffed (by PC O'Leary) he was aware that the Claimant was shouting out and protesting asking what the officers were doing and why and telling them to get off. He was aware that the Claimant had also been forced to the ground by the police officers. He had the impression that there was a struggle but it all happened very quickly and his view was not very good because he was facing the other way and his view was blocked by the legs of a police officer.
26. Mr Fielding had seen the CCTV before he gave his evidence, but did not recall speaking to a policeman immediately before being restrained and could not say whether the officer was speaking to him or Mr Browne. He said that he sobered up pretty quickly when he had been handcuffed. He felt that the whole incident happened quite quickly although he remembers sitting on the pavement waiting for the van to come for quite some time.
27. I considered Mr Fielding to be an honest and straightforward witness. I accept his evidence. He acknowledged frankly that he was very tired and had been drinking. Up until the point that he was handcuffed it seems to me that he was not really aware of what was happening. I also accept that he found the incident very frightening and was shocked and shaken and that nothing like this had happened to him before. He was of course dressed in a somewhat outlandish manner but I do not accept the evidence of the police that he was stumbling and obviously "high". He can be seen sitting passively on the pavement for quite some time waiting for the van. He was entirely cooperative with the police at the police station. He cooperated with the strip search. No drugs or any drug-related material was found on him. He was not the subject of any charge. There is no evidence to suggest that he was under the influence of drugs other than the account of the police officers and that evidence is entirely inconsistent with what can be seen on the CCTV. Although we only see his legs Mr Fielding can be seen very briefly walking at the beginning of the shop CCTV footage. He is not stumbling. He would clearly have given the impression of someone who had been up since the night before and may not have been initially fully alert or aware of what was happening because he was tired and because he had been drinking. I do not accept that he was out of control, his jaw was wobbling, that his eyes were wide open or his pupils enlarged.
28. I accept his evidence that he was manhandled to the floor and handcuffed without being told why and that that was done by PC O'Leary. The evidence I heard from PC Tucker was that he had seen no reason to restrain or handcuff Mr Fielding and there would be no reason in his view to put him on the floor and handcuff him. It seems that whilst PC Tucker was dealing with Mr Browne after he had been brought out of the shop by PC O'Leary, PC O'Leary restrained and handcuffed Mr Fielding. PC Tucker had begun to search Mr Fielding without the need for restraint and without any complaint and then stopped when he became aware of the struggle between PC O'Leary and Mr Browne and went over to assist. Whilst not directly relevant to the matters I have to decide it seems to me that on the basis of PC Tucker's evidence, Mr Fielding was unnecessarily restrained and handcuffed by PC O'Leary. Of course, Mr Fielding is not pursuing any action of his own relating to this incident, but I should make it clear that my view on this point helps me only to the extent I have set out at paragraph 41below. It is not intended to be binding in any other potential action.
29. Mr Fielding was aware of rather than saw a struggle between Mr Browne and the officers. He says that the Claimant was protesting and shouting. He was on the ground and asking why. It was his opinion that Mr Browne was dealing with the shock of the incident in a different way. He said that the police officers were on top of Mr Browne and he was resisting that physically. He was aware of the struggle but did not really see it. He could hear it. He could hear that Mr Browne was in some distress and was aware that he was face down on the floor as he, Mr Fielding, was. He acknowledged that the letter at page 68 in Bundle A was written on his behalf by solicitors. He did not wish to participate in any investigation into the incident. The letter sets out that as he was walking down the Kentish Town Road with Mr Browne some police officers pulled alongside and Mr Fielding was required to lie face down on the ground where he was handcuffed. He was not asked to confirm his identity nor was he asked any other questions by the officers. He waited 20 minutes to be taken to the police station where he was subjected to a strip search and released. The letter says that he did not witness any violent behaviour towards Mr Browne. In his evidence to me he said that he thinks that what was meant by the letter was that he was not an eyewitness to any violence. He was aware of the struggle. He was aware that Mr Browne was on the ground, but he did not see any violence.
30. Mr Fielding confirmed that he probably was at the police station where he was searched by PC O'Leary and a female police officer from about 11:10am that morning until about 11:35am. He said matters happened quickly at the police station and he was released.
31. The CCTV evidence shows Mr Browne as he enters the convenience store. I find that he is walking perfectly normally. He is dressed perfectly normally, in fact quite smartly. He is not displaying any signs of being "high". I reject Officer O'Leary's evidence that the Claimant was stumbling. It is apparent that Mr Browne could not be described as "incredibly dishevelled and looking unshaven and tired". He may very well have been tired having been up all night. He had been drinking over the course of the night and was not "razor sharp". I accept his evidence that he was not drunk. When he gave his evidence to me PC O'Leary was asked about the appearance of the Claimant on the CCTV and he said that he believed that he had sobered up quite well and had had to "switch off" when approached by the police. He went on to say that he did not smell any alcoholic liquor on the Claimant. However he said that whilst in the convenience store the Claimant again displayed behaviour consistent with drug use, his jaw moving uncontrollably, his eyes wide etc. PC O'Leary therefore gave his opinion that Mr Browne was displaying signs of drug use immediately before he is seen on the CCTV, sobered up whilst seen on the CCTV and then began displaying those signs of drug use again whilst in the store. I consider this to be simply incredible. I also have to take into account in reaching that finding that in his oral evidence PC O'Leary went further than he does in his statement and described the Claimant as looking so dishevelled, shabby and down and out that it was PC O'Leary's view that he might be a homeless person. On the other hand his colleague PC Tucker describes Mr Browne as wearing smart black shoes, black jeans and a dark long sleeved T-shirt under a smart jacket. In his evidence PC Tucker said that the Claimant looked exhausted but he would not say that he looked homeless. At hospital the Claimant indicated that he had had some alcohol to drink the night before, but there is no indication that he was under the influence of any drug. The paramedics who attended make no reference to the Claimant displaying any signs of drug use. At Bundle B p.208 it is recorded that the Claimant told the paramedics that he had only consumed alcohol.
32. I further note the discrepancy between the account given by PC Tucker and PC O'Leary as to the behaviour of the Claimant (and Mr Fielding). I have reached the conclusion that the officers saw two people, one of them oddly dressed, who obviously gave the appearance that they may have been at an all-night party and who were in an area described by Mr Tucker (at page 231) as a "drugs hotspot and where nearby nightclubs and bars had only recently closed". Both officers were immediately aware of Mr Fielding's celebrity status. It seems to me that these factors caused them to believe that the Claimant may have been using or be in possession of illegal drugs.
33. The police officers' evidence is that they wanted to stop and talk to the Claimant. It is not clear to me and it is not clear from the CCTV evidence to what extent, if at all, they made their purpose clear in terms of any intended drugs search. The Claimant says that neither officer gave any indication as they pulled up in a car that they wanted either of them to stop. He does not recall an officer speaking to Mr Fielding (although he acknowledges it is shown on the CCTV footage). He carried on as was his plan into the convenience store to buy cigarettes. This can be seen on the CCTV and Mr Browne appears to be walking normally, calmly and without particular haste or anxiety into the shop. It is PC O'Leary's evidence that at this point the Claimant was attempting to escape. He formed the view that the Claimant was attempting to avoid Mr Tucker. In the hospital records relating to Mr Browne's admission (Bundle B page 128) it is recorded that the "patient was being chased by the police" I find that this information has come exclusively from the police and is patently inaccurate. There is no evidence to suggest that Mr Browne was running away. It is implausible to suggest that he went into the convenience store as a means of escape. The evidence of Mr Fielding which I accept (at paragraph 5 of his statement) is that it was as Mr Browne was approaching the shop that he became aware of the presence of the police car. I find that Mr Browne intended to go into the shop all along and carried on with his plan not having been told by either officer that he was required to remain with them.
34. PC O'Leary followed Mr Browne into the store in the belief that he would find that Mr Browne had illegal drugs on him or had been using them. I find that this belief was for the reasons I have given and not for the reasons PC O'Leary has given. In the absence of CCTV evidence I have to make findings as to what happened in the store on the basis of the evidence I have heard from the two protagonists, PC O'Leary and the Claimant. Although in his statement Mr Browne says that he was suddenly attacked from behind without warning, when he gave his evidence orally he said that someone might have shouted out when he first went into the shop but not to him and he did not know what it was. He said that no one ever shouted out to him to stop and he did not hear the words "police stop". Officer O'Leary says that he shouted at him to stop for the police. It seems to me on a balance of probability that it is more likely than not that PC O'Leary did shout something when he first went into the shop. I find that he shouted it at the Claimant. In light of subsequent events and in light of the fact that he was in uniform I do not find that PC O'Leary specifically shouted "stop for police". He may have shouted "stop". I find that his intention was to attract the attention of the Claimant in order to indicate to him that he intended to search him. There is no evidence that there was anyone else in the shop. It is nonetheless apparent that the officer was behind the Claimant. In the circumstances I find that Mr Browne particularly given his somewhat exhausted state did not deliberately ignore PC O'Leary. As I find he did not know that he was being followed by the police because he did not know that the police wanted to talk to him. However it seems to me that given his fixed view of the Claimant and his intention to search him PC O'Leary at this point formed the view that the Claimant was deliberately ignoring him.
35. Although I have some real concerns about PC O'Leary's evidence and actions as is apparent from my findings in this case I do not find that he deliberately and without warning assaulted the Claimant by striking him on the head and kicking him. I find that at this point he decided physically to prevent the Claimant's progress believing that the Claimant was deliberately ignoring him.
36. As set out in his statement and as elaborated upon in his oral evidence to me PC O'Leary gives an account that he first shouted at Mr Browne and was ignored. He then walked up to him and saw him reach into his jacket pocket and appear to look over his shoulder at which point he asked him again to stop for police but he carried on walking and he could not get him to stop or respond. He then made eye contact with the Claimant and informed him that he was a police officer. He formed the view that Mr Browne was under the influence of drugs. He saw something in his hand and asked what it was. He then recited in full the "GOWISELY" set out at paragraph 16 in his statement. That statement is approximately 70 words. It seems to me and I find that these words could not be said intelligibly in less than 15 seconds. PC O'Leary was insistent (although he does not refer to it in his notebook) that he used the full wording in addition to the matters set out at paragraph 20 of his statement. He then describes the Claimant trying to break his grip and twist away whereupon he asked him again to show him what was in his hand and Mr Browne said something incoherent. PC O'Leary then tried to obtain the item from Mr. Browne and tried to get him into a headlock. Mr Browne was resisting violently. He was shouting instructions at Mr Browne and then grappled with him and got him in a double arm lock from behind picked him up off the ground with both arms around his torso and carried him out of the shop some 15 metres to the doorway.
37. The CCTV shows the point at which PC O'Leary goes into the store and the point at which he emerges carrying Mr Browne. The time-lapse is 17 seconds. I reject PC O'Leary's account of what happened inside the store on the basis that I find that he simply did not have time to do all that he says he did.
38. I reject in particular PC O'Leary's evidence that he gave the full "GOWISELY" statement. I also reject his evidence that Mr Browne took anything out of his pocket or had anything in his hand which was or might have been a paper wrap of drugs. The Claimant undoubtedly had picked up the seven or eight paper wraps after the party. He had intended to throw them away, but had not done so. I do not find that he believed that he was being pursued by the police or that they wished to stop and search him. I do not find that he went into the store to escape or to dispose of evidence. I consider that it is implausible that on entering a convenience store Mr Browne would begin to remove such an item from his pocket. As he goes into the store he certainly does check his inside jacket pocket, but having reviewed the CCTV evidence I am sure that he was doing what he said he was which was to check that he had his wallet. It is a very natural action when seen in the footage. As is apparent from the search of the Claimant at the end of the footage whilst he is on the stretcher wraps were removed from several of his pockets and an attempt to dispose of one would have been pointless.
39. At the heart of this case is an issue as to how Mr Browne came to suffer a broken leg. Although the burden of proof remains upon him, given that he suffered such a severe fracture in the course of an arrest there is an obligation upon the Defendant to provide an explanation (see Sheppard v The Secretary of State for the Home Department [2002 EWCA Civ 1921 at paragraph 13). The explanation provided is that it must have happened by accident when Mr Browne was being forced to the floor after he was taken out of the convenience store. I have again reviewed the CCTV evidence and considered the evidence of PC O'Leary. Despite the proffered explanation PC O'Leary in his oral evidence made it clear that he "cradled" the Claimant to the ground. The CCTV footage does not show PC O'Leary landing on top of the Claimant. It does not show, for example, PC O'Leary using a blocking motion. There does not appear to be enough force to cause this significant fracture.
40. Of course one of the difficulties with the explanation put forward is that it seems that the focus was on an injury to the Claimant's left leg when in fact it was his right leg that was injured. In consequence the attempt at an explanation on behalf of the Defendant was an attempt at an explanation for a left leg fracture.
41. The CCTV footage does not show any sort of twisting or forceful movement that would have caused this fracture. Under the circumstances I have reached the conclusion that the fracture did not occur outside the store and must therefore have occurred inside. By reference to the closing submissions of the Defendant it is set out that the first issue for me to decide is whether or not there was a deliberate assault in the shop in the manner described by the Claimant. I have to consider whether or not PC O'Leary deliberately kicked the Claimant so as to cause him injury. I do not find that PC O'Leary deliberately assaulted the Claimant in the sense that he without any reason set upon him striking his head and kicking him on more than one occasion so as to cause this complex fracture. I do find however that in circumstances where PC O'Leary believed that the Claimant was deliberately ignoring him, he decided to use force to restrain him in order to search him for drugs. I do not find that the Claimant resisted arrest inside the store. I accept his evidence that from his point of view he was set upon by the police officer without warning. He had the sense of being attacked from behind. He said he was pulled around by is neck and nose. I consider that PC O'Leary probably did use his leg or knee to block the Claimant's leg or forcibly bend it and tackle the Claimant towards the floor whilst simultaneously forcefully twisting him around in the headlock he described. I find that he used unreasonable force in doing so. I find that he brought Mr Browne to the floor or at least onto his knees and that in the course of this manoeuvre so much force was used as to cause the fracture. I accept that Mr Browne momentarily lost consciousness because of the pain. This finding is consistent with the evidence of PC O'Leary who says in his statement that he picked Mr Browne up off the floor in order to carry him out of the shop. It is consistent with Mr Browne's evidence of being in immediate pain in the shop and it fits with the officer's need to carry Mr Browne out of the shop and put him to the ground. At Bundle A p.132 PC O'Leary recorded that he "grappled the male and managed to get him in a double arm lock from behind" and then "picked the male up off the floor". This note is not the same as his later account (A p.230) where he says that the Claimant was never on the floor in the convenience store. I consider this to be a later inaccurate amendment of the account. Although the mechanics are not exactly as described by the Claimant it is consistent as I find with his impression of being struck from behind and kicked. It is consistent with PC O'Leary's approach to the restraint and handcuffing of Mr Fielding.
42. I consider that my finding as to how the injury was caused is consistent with the evidence of Mr Payne-James who says at paragraph 269 of his report that based on the medical evidence the injury has been caused by a severe force bending in or out of the knee possibly combined with a rotational element. I find that it is a more likely explanation than that it occurred outside the store when Mr Browne was being brought to the ground. It is consistent with Mr Payne James' evidence that such a fracture would cause immediate and disabling pain.
43. For the reasons set out above in respect of the second issue "Did PC O'Leary comply with section 2 of PACE and what is the effect of section 3 of the Criminal Law Act 1967 and at common law?" I consider that PC O'Leary did not take reasonable steps before commencing a search to bring to the Claimant's attention his name and the police station to which he was attached, the object of the search or the grounds for the search. I have been referred to R v Bristol [2007] EWCA Crim 3214. For the reasons I have given, there was no particular urgency here. He did not do his best to inform the Claimant of the details and thus the search was in any event unlawful. The failure to comply with s. of the Police and Criminal Evidence Act 1984 renders any use of force in these circumstances unlawful. In any event the force used was excessive and unreasonable.
44. PC O'Leary was clearly convinced that the Claimant would have drugs on him if he were searched. As set out above I did not find that he had any cause for that conviction other than as I have referred to, the celebrity status of Mr Fielding, the time and the location and possibly the fact that it was apparent that the men had been up all night. I do not find that the Claimant was trying to dispose of the drugs or destroy evidence or trying to swallow the drugs. The use of force was not therefore justified under section 3 of the Criminal Law Act 1967. Because I do not find that at any point PC O'Leary saw the Claimant attempting to swallow drugs I do not find that the test of necessity is applicable.
45. There is some discrepancy in PC O'Leary's account as to whether the Claimant was struggling violently in the store or as he set out in his notes (A 133) he anticipated the Claimant was about to become violent. The Claimant is not fiercely struggling when he is carried out of the store. This is seen on the footage. It does seem to me that when he had been restrained on the floor he was shouting and asking questions and he may have been attempting to break free from the restraint. By this time his injury had already occurred. He was in pain. He did not understand what was happening. I think that as described by Mr Fielding he was resistant and struggling. The Claimant told me he was protesting, struggling and shouting. This does not give rise to any contributory negligence in light of my findings as to the causation of the injury. Mr Browne clearly was aware of the police, but was not aware that he had been followed into the shop by a police officer. I accept that he did not obey the command to stop, but I also accept that he did not appreciate that it was being directed at him. Even if he should have appreciated that it was being directed at him the response of PC O'Leary was so excessive as to negate any contributory negligence in this respect. PC O'Leary could for example have tapped him on the shoulder or given the full "GOWISELY" information. PC O'Leary did not make adequate attempts before going straight to excessive physical restraint to alert the Claimant to his presence and wish to search him.
46. By reference to the issues identified in the Defendant's closing submissions therefore I do not find that PC O'Leary deliberately assaulted the Claimant by striking him on the head and kicking him in the leg. He used unnecessary and unreasonable force to restrain him, believing he was being ignored. Thus it amounted to an assault. I do not find that he complied with s.2 PACE as required when carrying out a section 23 Misuse of Drugs Act 1971 search. Section 3 of the Criminal Law Act 1967 did not apply in the circumstances and neither did necessity. PC O'Leary did use unreasonable force in causing the Claimant's injury. Finally, the Claimant is not guilty of any contributory negligence.
47. In reaching these conclusions I have assessed the credibility of the witnesses carefully. As I have said I consider Mr Fielding's evidence to have been given honestly and straightforwardly to the best of his ability in light of his recollection. I do not find that either the Claimant or PC O'Leary have been entirely honest in their evidence. I consider that the Claimant has exaggerated his claim for damages in the respects set out below. I do not find that he was deliberately assaulted by PC O'Leary as he describes, but I accept that his interpretation of what happened to him may have caused him to reach the conclusion that he was deliberately assaulted. As I have set out above I cannot accept PC O'Leary's evidence about what happened inside the store in light of the passage of time shown on the CCTV footage. I consider that he was forced, having seen the CCTV footage to put forward the account of the Claimant behaving as if on drugs immediately before the beginning of the footage and then "sobering up" before behaving as if "high" again inside the store. I find that he deliberately exaggerated the Claimant's behaviour in his statements and accounts.
48. I should also say that I consider that PC O'Leary's evidence about what happened after the incident is unreliable. In his statement he says that having taken Mr Fielding to the police station and being involved in his strip-search and release he then went back to the scene and went and sat in the front of the ambulance while the Claimant was still with the paramedics and PC Tucker and actually overheard the Claimant's remarks admitting to the possession of "a gram of gear" and "a narcotic substance". He also made reference to Mr Browne talking about spending 18 years in prison for robbing banks and being in the paratroopers. The documents show that the ambulance left at 11.30am (B 207) and arrived at hospital at 11.40 am (B 207) or 11.44am (A 198) or 11.47am (B 357). The search of Mr Fielding was concluded at 11:35am (A 212). PC O'Leary told me that the police station is about 500 yards away from the Everbest store. Having escorted Mr Fielding out via a side or back door from the police station I find that PC O'Leary simply could not have had time to get back to the ambulance to sit in the ambulance to hear these details and then to leave again before the ambulance set off. The ambulance left before the search of Mr Fielding concluded. PC O'Leary considered this and suggested that the ambulance recorded timings must therefore be wrong. I do not find that they are incorrect. They are consistent with the hospital records in terms of time. I consider that PC O'Leary was not telling the truth about his return to the ambulance or what he heard there. He is not supported in his recollection by PC Tucker in terms of what the Claimant is alleged to have said. His evidence that the Claimant admitted possession of an unspecified illegal drug suggests an intention that this should be used at a criminal trial. Unhappily I find that this was a case of deliberate dishonesty on the part of PC O'Leary. Whilst not central to the subject matter of this dispute, it causes me to have real doubt about the veracity of other aspects of his evidence.
49. PC O'Leary also said in his oral evidence that it may have been that he went back to the ambulance to collect the exhibits (referred to at A 204) from PC Tucker. This was the first time this was mentioned and was I find an attempt to provide a reason why he might have gone back to the ambulance when there was in fact no such reason.
50. I had the impression that Mr Tucker was doing his best to support his former colleague, but there are significant inconsistencies between Mr Tucker and PC O'Leary in their description of the Claimant. Mr Tucker misremembers what Mr Fielding was wearing. In his statement he provides an explanation for an injury to the Claimant's left leg rather than his right. His notebook refers to an injury to his right leg. I consider that where his evidence refers to Mr Browne attempting to swallow an illegal drug and to Mr Browne struggling excessively it was incorrect and motivated by a need to justify the actions of the Defendant. I reject those aspects of his evidence.
51. I heard evidence from Mr Nicholls, one of the paramedics who attended the Claimant and who were informed that the Claimant might have possibly swallowed drugs. In his statement he says that he was told that the Claimant had been selling drugs to Noel Fielding and that his leg had been bent out from under him whilst he was brought down to the floor. I accept that he may have been told these things by the police, but they clearly were not accurate. Mr Browne remembers the ambulance being called because of the injury to his leg. Mr Nicholls recalls that the Claimant was not causing any problems by the time the ambulance arrived. He was cooperating. He showed no signs of aggression and could not in any event get up and run away. He recalls that the police officer (Mr Tucker) kept himself to himself whilst in the ambulance. He does not recall the Claimant having much of a conversation with a police officer. He has no recollection of a second officer joining them in the ambulance. I have no reason to doubt Mr Nicholls' evidence. It undermines the evidence of PC O'Leary.
52. I should also mention that in the course of the trial the Defendant made an application to put some of Mr Browne's previous convictions to him. I gave a ruling at the end of the application which I do not intend to repeat here but having considered the law and the arguments I allowed cross-examination on items 7 and 8 but not on items 2 or 9 of the PNC record of convictions. No application was necessary in respect of item 6, a conviction which will never be spent pursuant to the Rehabilitation of Offenders Act 1974. I accept therefore of course that Mr Browne is a man who has been involved in very serious offences including offences of violence but I find they are of very limited relevance here. Some of them are very old indeed. I have taken them into account but have given them very limited weight in resolving the issues I have had to resolve in this case.
53. I find Mr Browne was frank in his evidence about his past drug use and I accept his evidence that he does not have a substance misuse problem.
54. In the circumstances therefore I consider that the Claimant succeeds in this claim on the basis that the search of him was unlawful by reason of the failure to give the appropriate information and secondly because in any event excessive force was used to restrain him in the convenience store.
55. The Claimant was born on 30.11.60 and will therefore be 54 on 30.11.14. He was 49 at the time of this incident. His Schedule of Damages which is signed by him with a statement of truth is at page 25 in the bundle. The Counter-Schedule is at page 27. In terms of general damages the Claimant claims damages for the fracture of his right tibial plateau. It was a closed and comminuted fracture (classification Schatzker 6). There is a full description of the fracture at B 372. He also claims for a broken nose which occurred during the incident. I should say I have heard no evidence of this other than from the Claimant who had the impression that his nose had been broken. There is no medical evidence to support it and I discount it as not proved. He suffered a pin site infection in May 2011 (B 405) for which he is entitled to recover damages. He also claims for further injuries resulting from a fall during his recovery namely a broken right leg and a broken right arm or elbow. At paragraph 39 of the statement he says that after the fixator was removed after 18 months his leg was put in a plaster cast, but because of weakness and wasting and the weight of the cast he lost his balance on a flight of stairs and fell causing the further fractures. That was on 26.8.11 (B 28). It was put to him that the records suggest that he slipped on a wet step (see C 639). I am satisfied that, by reference to the medical records (B 37, B 53, B 67 and C 641) and his account to me of falling on an outside step because he could not support the weight of the cast on his injured leg that the Claimant has established that the subsequent fractures were caused as a consequence of the earlier injury.
56. According to the letter at page 77 of Bundle A, Mr Browne' fracture required surgical fixation with an external fixator on 16^th April. He required significant analgesia and physiotherapy. The fracture healed slowly. A scan showed non-union on 5th November 2010. He had the fixator in place for 18 months. He had a superficial pin site infection in May 2011 which required hospital treatment. He had a further examination under anaesthetic in August 2010.I accept that Mr Browne was previously a very fit man. He had an active lifestyle. He cannot now pursue his hobbies of fencing, skydiving and running. He developed depression in consequence of his injury and continues to require medication. He may require hip and/or knee joint replacements in the future. He cannot work as a close protection officer. His right leg is deformed. He was in hospital for about three or four weeks initially. He required a great deal of care after his discharge. That was provided in particular by the friend with whom he lived, Veryan Berg. After he moved from there he stayed with various friends before living in a hostel. He now uses a leg brace. He uses a crutch or walking stick at times and has sometimes had to use a wheelchair. He has a permanent limp and his right leg is shorter. He cannot run. He says that he has been unable to work, I have considered the Judicial College Guidelines and have reached the conclusion that general damages for pain, suffering and loss of amenity here fall into the very serious category of severe leg injuries, that is, £40,300 -£62,150. I consider that an appropriate award would be £55,000 to include the pin site infection. This figure is also consistent with the upper end of the second bracket of severe knee injuries or the lower end of the first bracket.
57. In respect of the subsequent fracture to the femur I consider an appropriate award by reference to the Judicial College Guidelines at p.62 would be £6,700 and for the arm fracture by reference to p 47 would be £5,000.
58. In respect of the financial losses claimed it seems to me that the Claimant has seen this incident in which he undoubtedly suffered a very unpleasant injury at the hands of the police as an opportunity to put forward a claim which he cannot substantiate in many aspects.
59. Mr Browne claims a very significant sum for taxi fares including a large number of return trips to Southwold in Suffolk where he can relax at a place belonging to the father of a friend. He went there most weekends for recuperation purposes, travelling by taxi until he got a travel pass. I consider that Mr Browne has exaggerated the taxi fares and produced a bundle of receipts from an unnamed taxi firm which are quotes rather than invoices. Mr Browne indicated to me that the taxi services were provided by a friend who was effectively "moonlighting". I discount those receipts and award taxi fares for those invoices which are properly evidenced namely £9,991.
60. The cost of care in the sum of £1,800 is agreed.
61. Mr Browne claims past and future loss of earnings on the basis that he earned about £500 a night doing close protection work and was paid cash in hand but has no records of the earnings. Alternatively based on a minimum wage income he claims a net figure of £900 per month. For future loss of earnings he claims a multiplier of 10.2 amended to 8.16 with net earnings of £30,000 per annum based on close protection work or a multiplier of £11,040 per annum based on the minimum wage. The future loss of earnings claim is therefore either for £244,800 or £90,086.
62. Mr Browne's evidence about his earnings was unsatisfactory. He told me that he has no tax returns or bank statements. I cannot find that Mr Browne has proved any actual loss of past earnings. If he did work cash in hand he has shown no evidence of it. If, as some of the images from the print outs from social media suggest he did provide close protection work to some celebrities I have no information as to any payment that was made and in the absence of bank statements or tax returns I cannot find any such payments were declared and in the circumstances I make no specific award for such sums. That applies to the future claim as well. I also accept that the Claimant has not established that he would ever have been in full-time formal employment even at the minimum wage. He seems to have no work history.
63. I do accept that he is not now able to live as he did before and I do accept that he would be handicapped on the labour market if he sought work. He now claims benefits. I take the view that it is appropriate to award a lump sum to reflect that handicap on the labour market for what would otherwise have been his means of earning some income for the rest of his working life. Any such sum can only be modest to reflect the very little amount of information I have and as I find the limited amount of work Mr Browne had or would have done. I consider that the sort of approach adopted in the case of Blamire v South Cumbria Health Authority [1993] PIQR Q1 is useful. The conventional multiplier/multiplicand method is inappropriate here given the number of imponderables. The sum I award is one of £25,000.
64. Mr Browne also claims aggravated and exemplary damages in the pleading. In his closing submissions Mr Cragg QC for the Claimant conceded that exemplary damages may not be appropriate here. I agree. Referring to the case of Thompson (and Hsu) v Commissioner of Police of the Metropolis [1998] 1 QB 498 at page 516 C-D, it seems to me that PC O'Leary did behave in a high-handed and/or oppressive manner for the reasons I have set out above and that an award of aggravated damages is appropriate. This was not a "simple momentary error of judgment" as in Miller v The Chief Constable of Surrey Police (transcript 22.1.2013). I should be careful however not to give the Claimant any element of double recovery and in the circumstances the award of aggravated damages is in the sum of £5,000.
65. In the circumstances there will be judgment in the sum of £108,491. I understand that counsel will be able to agree any interest to which the Claimant is also entitled.