How a solicitor can make a difference to the success of a client’s civil claim by acting early
The following article has been written by Sasha Barton and was originally published in Criminal Law & Justice Weekly
Criminal solicitors will regularly have cases where clients have been mistreated by police officers. In some cases, such as where an officer has used excessive force to detain a client and caused serious injuries, it will be clear that there might be a civil claim. Sometimes however, particularly where a breach is more technical, it may not be clear if anything can be done.
I frequently see cases where the police make mistakes early on by failing to comply with aspects of PACE, leading to significant claims where, for example, every action of every officer after the first PACE breach is by definition unlawful.
For example in one case plain clothes officers wanted to conduct a drugs search on my client, but an officer just stuck out an arm as he was walking along a road to stop him, not identifying himself or telling the client he wanted to conduct a drug search. The client, not realising it was an officer, simply brushed his hand away and tried to carry on walking. He was grabbed, shoved up against shop windows, seriously manhandled and taken to the floor after many more officers had been called. He was then arrested for assaulting the PC (brushing away of the hand), held for several hours at the police station and charged. The prosecution was eventually discontinued due to the multiple breaches of PACE at the outset, meaning officers had not been acting in the execution of their duties. The client suffered soft tissue injuries, post-traumatic stress disorder and extreme anxiety about his future. He claimed damages for false imprisonment, assault and malicious prosecution, the claim settling out of court for a five figure sum.
In another case our client was subject to a significant number of PACE breaches in custody, being strip searched by male officers who removed all her clothing and left her naked in the cell, visible on the custody desk via CCTV cameras. The justification for the search, the authorisation or even the fact of it taking place, were not recorded in the custody record. She is making a claim for assault and breach of her human rights.
Whatever the type of case and however serious the mistreatment, there are vital early steps that criminal solicitors can take, that will hugely add value to any civil claim that follows, whether or not it is necessary for the criminal case. Steps including taking date stamped photos of a client’s injuries at the police station, making a verbal record of the injuries on the interview tape and advising them to see and FME in police custody and a GP afterwards, securing local authority or other CCTV footage (even if it becomes irrelevant to the criminal case, e.g. because the police NFA the case before it’s obtained) and getting details of witnesses who saw what officers did (even if not relevant to the criminal offence), can help hugely in setting up a civil claim. Much of this evidence is simply lost if it isn’t obtained or recorded at the time, making it far harder to run a successful civil claim.
You can also ensure your client is aware of time limits on making a claim – for instance there is a six month limit on making a discrimination claim, a one year time limit for bringing a claim under the Human Rights Act 1998 and a three year time limit for bringing a claim that involves personal injury. If your client wants to judicially review a decision by the police (for example for failing to remove their DNA data or issuing a caution/FPN in error), this must be done as promptly as possible, but within three months at the absolute latest.
Spotting potential claims at an early stage and acting to add value to a claim whilst criminal proceedings are ongoing can make a real difference to your clients, improving the chances of them securing the damages they are entitled to.
Sasha Barton is a Senior Associate Lawyer in the Civil Liberties team at Hodge Jones & Allen.