Case No: B3/2014/0669

Neutral Citation Number: [2015] EWCA Civ xxxx 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE MADGE
1UC00661
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14 May 2015
Before :

LORD JUSTICE AIKENS
LORD JUSTICE McFARLANE
and
LORD JUSTICE BEAN
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Between :

	MICHAEL McDONNELL	Appellant	
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	(1) THE COMMISSIONER OF POLICE FOR THE METROPOLIS (2) THE DIRECTOR-GENERAL OF THE NATIONAL CRIME AGENCY	Respondents	

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Anthony Metzer QC (instructed by Hodge Jones and Allen LLP) for the Appellant
Julian Waters (instructed by MPS Directorate of Legal Services and Legal Team, National Crime Agency) for the Respondents

Hearing dates : 14 May 2015
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JUDGMENT
Lord Justice Bean : 
1.	This is an appeal from a judgment of His Honour Judge Madge, following a trial in the Central London County Court, dismissing a claim for damages for assault. I adopt with gratitude the narrative set out in the findings of fact made by the trial judge. 
  
2.	On 15 January 2008 the claimant Michael McDonnell met his friend James Wilson in Huxley Road in Tottenham, just across the street from his (the claimant’s) house.  Mr McDonnell received from Mr Wilson a package containing one kilogram of cannabis.  Unknown to him, Mr McDonnell had been under surveillance for some time by the police and the Serious Organised Crime Agency (SOCA); and unfortunately for him, PC Marwick and SOCA Officer Macdonald, who were both in plain clothes that day, had watched him receive the cannabis from Mr Wilson.  

3.	Having received the package Mr McDonnell crossed the road, opened the garden gate, and went down some steps and walked towards his front door.  He was walking briskly but not running.  PC Marwick went after Mr McDonnell while the other officer went towards Mr Wilson.  PC Marwick’s plan was to take Mr McDonnell to the ground because he believed that he was attempting to enter his house and was about to run through the front door to destroy evidence or escape.  PC Marwick stated during his evidence, and the judge accepted, that in 22 years service as a police officer he had found that individuals in possession of large amounts of prohibited drugs often place weapons close to the front door and in other easily accessible areas in order to protect themselves.  After the arrest a machete and a gas canister were recovered from inside Mr McDonnell’s home.  

4.	As he was walking towards his front door Mr McDonnell did not look behind him.  PC Marwick described what happened next as follows. As he was almost alongside Mr McDonnell he put his right arm around the back of his shoulders and grabbed his right shoulder.  With his left arm he grabbed Mr McDonnell’s left shoulder and, with the momentum he had from running and his body weight, was able to force Mr McDonnell to the ground.  Part of PC Marwick’s body (his right side) landed on top of Mr McDonnell and his left side landed on part concrete, part gravel.  The judge accepted that, in taking Mr McDonnell down, PC Marwick largely followed the procedure that is contained in the Metropolitan Police’s Rear Take-Down Officer’s Safety Manual. SOCA Officer Macdonald arrived seconds later.  The two officers then proceeded to handcuff Mr McDonnell and arrest him.

5.	During the course of this incident Mr McDonnell sustained an undisplaced fracture of the upper end of his right humerus and other more minor injuries. The judge found, following medical evidence, that the fracture to his right arm was the result of the impact when Mr McDonnell hit either the garden wall or the ground as he fell. 

6.	Following this incident Mr McDonnell brought a claim in the county court for damages for assault, alleging that unreasonable and excessive force was applied in the course of his arrest. On 21 December 2010 permission to bring the claim was given under section 329 of the Criminal Justice Act 2003, and two days later proceedings were issued.  They were subsequently amended to include the second respondent. 

7.	A trial started on 15 December 2013 before His Honour Judge Lamb QC. However, during the trial defence counsel advised that Mr Percy, the defendant’s medical expert, had changed his opinion regarding the mechanism of the claimant’s injury.  The claimant made an application for a re-trial which was granted.  

8.	The case then came before Judge Madge, who identified the following issues: 
(1)	Whether the fracture was caused by Mr McDonnell being taken to the ground or when the handcuffs were applied.
(2)	What force was required to cause the fracture. 
(3)	Whether the force used was unreasonable. 
(4)	Whether the force used was grossly disproportionate..

9.	The judge found that the fracture was probably caused by a direct blow.  He accepted the defendants’ evidence that the fracture must have occurred during the fall while Mr McDonnell was being taken to the ground, rather than during the handcuffing process. He was satisfied that the fracture occurred in one of two ways: (i) as a result of Mr McDonnell’s shoulder hitting the ground (as advanced by the defendant), or (ii) as a result of his shoulder hitting the wall while PC Marwick was taking him down (which was not advanced by either side).  The judge did not think it necessary to decide which of those two possibilities was the cause but held that, if he had to determine it, he would have found that the more likely cause was the second one, when the claimant’s shoulder hit the wall. 

10.	In relation to force used, the judge stated at the end of paragraph 36 of his judgment:
“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.”

11.	The judge then went on to consider the force used in more detail and whether there was a breach of s 117 of the Police and Criminal Evidence Act 1984 and s 3 of the Criminal Law Act 1967.  Section 117 of the 1984 Act states: 

“117. Power of constable to use reasonable force.
Where any provision of this Act—
(a) confers a power on a constable; and
(b) does not provide that the power may only be exercised with the consent of some person, other than a police officer,
the officer may use reasonable force, if necessary, in the exercise of the power.”

12.	Section 3 of the 1967 Act states: 

“3.— Use of force in making arrest, etc.
(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

(2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.”

13.	The judge said that the test in relation to reasonable force was an objective test and that the burden was on the defendants to show that the force was reasonable.  He concluded that the force used was “significant” and that it was more likely than not that it was “unreasonable” and “excessive”.  His findings in that respect are set out in paragraph 38: :

“Clearly I have to have regard to all the circumstances and weigh up the factors pointing each way.  Among the factors pointing towards the level of force being unreasonable are the following.  There were 12 or 13 officers close by.  Constable Alan Macdonald was seconds behind Constable Marwick.  Mr McDonnell and Mr Wilson had separated, and so effectively Mr McDonnell was on his own.  Mr McDonnell was aged 47 and known to have no previous convictions.  There was no specific intelligence that he was armed, or likely to be violent.  It was not an inherently violent situation.  
On the other hand, the factors pointing towards the force being reasonable include the following.  Men in possession of large quantities of drugs may seek to avoid arrest, use weapons, and dispose of the drugs.  Mr McDonnell was very close to the front door.  The officers were worried that there were weapons inside the house.  The officers appeared to have followed the relevant Metropolitan Police Officer’s Safety Manual.  
I bear in mind Mr Waters’ submission that I should avoid a misconceived post ergo propter hoc conclusion, but at the end of the day I cannot ignore the indisputable fact that Mr McDonnell’s arm was fractured, and that that was caused by the use of  significant force.  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 Constable Macdonald could have prevented Mr McDonnell from entering the house without taking him to the ground.”

14.	The judge then went on to consider whether a defence was available under s 329 of the 2003 Act.  That section is entitled “Civil proceedings for trespass to the person brought by offender” and states in the relevant parts: 

“(4) If the court gives permission and the proceedings are brought, it is a defence for the defendant to prove both—

(a) that the condition in subsection (5) is met, and
(b) that, in all the circumstances, his act was not grossly disproportionate.

(5) The condition referred to in subsection (3)(a) and (4)(a) is that the defendant did the act only because—

(a) he believed that the claimant—
(i) was about to commit an offence,
(ii) was in the course of committing an offence, or
(iii) had committed an offence immediately beforehand; and

(b) he believed that the act was necessary to—
(i) defend himself or another person,
(ii) protect or recover property,
(iii) prevent the commission or continuation of an offence, or
(iv) apprehend, or secure the conviction, of the claimant after he had committed an offence;
or was necessary to assist in achieving any of those things.”

15.	The judge noted that the defendants bore the burden of proving that the defence was made out.  He found that the test under ss 329(4)-(5) was subjective.  He accepted the evidence that the conditions in those sections were met for the following reasons: 

“I accept the defendants’ evidence that the section 329(4) and (5) conditions are met.  I accept the officers’ evidence.  The officers honestly believed that the claimant was in the course of committing an offence … Constable Marwick honestly believed that it was necessary to take Mr McDonnell to the ground to apprehend him, and to defend himself.  Constable Marwick and Constable Macdonald honestly believed that their acts of handcuffing Mr McDonnell were necessary to assist in apprehending and in defending themselves.  As I say, I bear in mind that the officer’s belief does not have to have been reasonable.  I also accept the defendants’ contention that the actions of Constable Marwick and Mr Macdonald were not grossly disproportionate.  They believed that the kilogram block of illegal drugs consisted of cocaine.  The actions of someone in possession of such a valuable quantity of drugs may well be desperate. They may be in possession of weapons, or have them nearby.  In fact, the claimant had a machete, or billhook, and a can of CS spray just within his front door.  There is a significant difference between an objective test and a subjective test. ”

16.	In reaching his conclusion he bore in mind the Officer’s Safety Manual and the fact that the police officers were acting in accordance with a recognised police practice.

Appellant’s submissions

17.	Mr Metzer QC, appearing on behalf of Mr McDonnell, submits that the trial judge was wrong to conclude that the force used was not “grossly disproportionate” within the meaning of s.329(4)(b) of the 2003 Act, despite his findings that the force used was “unreasonable” and “excessive” contrary to s 117 of PACE. 

18.	In his submission the word “grossly” in s.329(4) is otiose and adds a gloss to the word “disproportionate” that is inconsistent with the appropriate approach under Article 3 ECHR.  He relies on Strasbourg case-law in relation to Article 3 holding that force may only be used in the course of arrest if “indispensable” and “not excessive”.  He submits that “grossly disproportionate” should be equated with “disproportionate” or “unreasonable” by using the court’s powers under s.3 of the Human Rights Act 1998.

19.	Mr Metzer submits that in reaching the conclusion that he did Judge Madge wrongly diluted the principle, which Sedley LJ in Adorian v MPC [2009] EWCA Civ 18 described as “painstakingly established in the course of two centuries and more, and fundamental to the civil rights enjoyed by the people of this country”, that no more force may be used to effect an arrest than is reasonably necessary.  Having found that the force used was “excessive and unreasonable” the judge should have gone on to conclude that the respondents had failed to discharge the burden of showing that the force was not “grossly disproportionate” under s.329.

20.	Mr Metzer further submitted that the denial of a remedy in damages, in spite of the judge’s finding that Mr McDonnell had been subjected to excessive and unreasonable force, deprives the claimant of his right to effective access to the courts under Article 6 ECHR.  He relies on Golder v United Kingdom, Ashingdane v United Kingdom, and Lithgow v United Kingdom. 

Respondents’ submissions

21.	In a Respondent’s Notice the respondents argue that the judge was wrong to find that the force was unreasonable. They submit that in deciding this question he placed too much emphasis on the outcome rather than the act and the surrounding circumstances. The injury was so severe not because of the force of the tackle but because Mr McDonnell’s shoulder struck a stone in the path or the wall: it was an accident, not a deliberate infliction of a wound. 

22.	Furthermore Mr Waters submits that the judge was wrong to find that PC Marwick could have prevented Mr McDonnell from entering the house without taking him to the ground.  There was no evidence or exploration as to how else this could have been done in all the circumstances. The judge failed to take into account the dynamic and swift-moving scenario and the split second in which PC Marwick had to make his decision.  The judge also relied on a matter which was factually incorrect, namely that there were 12 to 13 officers “close-by”.  There was only one officer following PC Marwick; the others were either arresting Mr Wilson or making their way to the scene. 

23.	We heard argument on the Respondents’ Notice first, since if it is upheld the other issues fall away.

Discussion

24.	Mr Metzer submitted that the Respondent’s Notice makes an impermissible challenge to the judge’s finding that the force was excessive and unreasonable. I do not consider that we are precluded from re-examining this evaluation by the judge in the light of his own findings of primary fact.    

25.	I regard the following findings of fact as especially significant: 

(a)	PC Marwick and Officer Macdonald honestly believed that the claimant was in possession of a 1 kg block of cocaine with intent to supply;
(b)	Men in possession of large quantities of drugs may seek to avoid arrest, use weapons and dispose of the drugs; the actions of someone in possession of such a valuable quantity of drugs may well be desperate; 
(c)	The claimant was very close to his own front door;
(d)	The officers were worried that there were weapons inside the house;
(e)	PC Marwick honestly believed that it was necessary to take the claimant to the ground to apprehend him and to defend himself;
(f)	He followed the relevant police safety manual.

26.	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”. Mr McDonnell was not a fugitive shoplifter. PC Marwick honestly believed that he had to act very quickly to bring him down in order to prevent him reaching his front door. There was no scope for “nicely calculated less or more”. 
 
27.	I do not, with respect, understand on what basis the judge concluded that Marwick and Macdonald “could have prevented Mr McDonnell from entering his house without taking him to the ground”. He does not expand on this, and all his other findings of fact seem to me to point the opposite way. 
 
28.	The judge placed too much emphasis on the result of the force, namely the injury and its severity, rather than the act (the taking to the ground).  The severity of the injury resulted partly because of the force used, but also because Mr McDonnell’s shoulder struck the wall. PC Marwick, like the rugby player who tackles his opponent, intended to bring the clamant down, but not to inflict injury. Mr Waters was justified in describing it as an accident, not a deliberate infliction of a wound.  If the tackle had been slightly less vigorous, Mr McDonnell’s shoulder might not have struck the wall. But in the circumstances of this case that does not make the force used unreasonable, excessive or disproportionate (which seem to me to be three different ways of saying the same thing).. 

29.	I would accordingly uphold the decision of the judge dismissing the claim, but on the basis set out in the Respondents’ Notice. The issues as to the interpretation of s 329 of the 2003 Act and its compatibility with the ECHR do not therefore arise.    

Lord Justice McFarlane 

30.	I agree. 

Lord Justice Aikens  

31.	 I also agree.