Alleyne v The Commissioner of Police of the Metropolis [2012] EWHC 3955 (QB)

Case No HQ11X02326

[2012] EWHC 3955 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Friday 21 st September 2012

Venue (handed down at Cardiff Civil Justice Centre)

Before

HIS HONOUR JUDGE SEYS-LLEWELLYN QC

(Sitting as a Judge of High Court)

Between

MICHAEL ALLEYNEClaimant

THE COMMISSIONER OF POLICE OF THE METROPOLISDefendant

Helen Law (instructed by Fisher Meredith) for Claimant

Dijen Basu (instructed by Commissioner of Police for Metropolis) for the Defendant

Hearing Hearing dates: 23 rd to 27 th July 2012

Judgment

HHJ Seys-Llelwellyn QC :

[1]The Claimant is a man of good character. On 30th June 2008 at least 14 police officers attended his home a flat at 6 Clock Tower Place. There were 11 Territorial Support Group police officers (“TSG”) and 3 homicide officers. In the early hours of the day before a teenager, Ben Kinsella had been stabbed to death by 3 men with knives. By the morning of 30th June 2008 the police had identified 2 of his murderers, one of whom was Michael Alleyne (the Claimant’s son) and the police had obtained search warrants for his home address the flat at 6 Clock Tower Place, and Jade Braithwaite the other young man identified as a murderer. The police operation was called Operation Docena. A large number of officers forced entry into the Claimant’s flat shortly before 2.00pm. It is controversial whether they announced themselves as police officers before entering and whether the Claimant voluntarily went to the floor, as he says, or was taken to the floor by the first of the TSG officers to enter. In the course of their entry, the Claimant sustained injury to his right eye and to his right ankle, later confirmed to be a fracture.

[2]In these proceedings the Claimant claims for damages for trespass to premises, contending that the entry and search of his premises was unlawful (whether in itself or because he was assaulted during the course of entry); for trespass to the person, in that he was unlawfully handcuffed and deliberately kicked in the right eye and deliberately struck to the right ankle; alternatively that these injuries were inflicted from a want of proper care for his safety and in breach of a duty of care owed to him by officers entering the flat; and for false imprisonment, “for approximately 4 hours and 14 minutes between 13.55 hours and 18.09 hours”.

The respective claims

[3]It is convenient here to identify the burden of proof and principal issues on each claim.

[4]The entry. The Claimant’s case is that the entry and search of his property was unlawful because (a) the officers did not properly identify themselves upon entry, contrary to section 16(5) of the Police and Criminal Evidence Act 1984 (“PACE”); he was not shown any warrant, or provided with a copy of the warrant, as required by section 16(5) PACE; (c) the officers acted beyond the scope of the warrant by assaulting him, therefore rendering the entry and search unlawful ab initio. The Defendant’s case is that the entry was lawful pursuant to section 17 PACE in order to arrest the Claimant’s son and that the requirements of section 16(5) PACE in relation to the warrant were complied with as soon as possible thereafter. The Defendant further seeks to rely on section 6 Constables Protection Act 1750 to the extent that the officers were acting in obedience with the warrant.

[5]It is conceded that the Defendant’s officers entered the Claimant’s property. The burden is therefore on the Defendant to establish that there was a lawful basis for that entry. The standard is on the balance of probabilities.

[6]Assault/Battery. The Claimant’s case is that he went to the ground himself following the orders of the police officers, and that thereafter intentional force was used on him by the officers to handcuff him, and to assault him whilst he was on the ground, causing him injuries to his right eye and his right ankle.

[7]As a matter of law, the burden is on the Defendant to prove that it was necessary to use force on the Claimant and that the force used was reasonable, in accordance with section 117 PACE and/or section 3(1) Criminal Law Act.

[8]Negligence. It is for the Claimant to prove the elements of the negligence claim on the balance of probabilities. If contributory negligence is in truth here relevant, it is for the Defendant to prove that on the balance of probabilities.

[9]The Detention. The Claimant claims false imprisonment from the time of the entry until he was released from the police station at about 18.09 hours. During the initial part of the entry, he was detained in handcuffs, and claims in respect of that initial period. Thereafter the handcuffs were removed but the case of the Claimant is that he was not free to leave and accordingly still detained including during his transport to and his time at the police station, namely the subsequent period.

[10]In respect of the initial period of detention the Defendant asserts it was lawful because the Claimant was obstructing the officers, or at least the officers believed he was obstructing them, such that they were entitled to use their section 117 PACE powers to prevent him from doing so; of the subsequent period the Defendant asserts that he was not detained and was free to leave at any time.

[11]The burden is on the Claimant to establish that he was detained. If he establishes that it is on the Defendant to establish that the detention was on a lawful basis, on the balance of probabilities.

The trial

[12]I heard opening submissions on 23rd July 2012; oral evidence on Tuesday 24th to Thursday 26th July 2012; and closing submissions on 26th and 27th July.

[13]On the Claimant’s side, the following witnesses were called: The Claimant himself; his wife Sandra Alleyne; his daughter Michelle Alleyne,; his daughter Yvette Alleyne; and Mr James Watts a neighbour of the Claimant. On the Defendant’s side, the following witnesses were called: PC Glen Timmons; PC Gillan; PC Barry; PC Jacqueline Wells; PC Lee Leggett; Sergeant Zeegen-Holt; PC Mark Thomas; DC Susan Aldridge; PC Wright; PC Mayer, DC Quartermaine;, DS Southon; PC Campbell; and PS Maddison.

[14]Of the witnesses called on the Claimant’s side, the Claimant alone was in the flat when the police made rapid forced entry. His wife finished work at about 2.30pm and around that time was phoned by her daughter Yvette and told of the police entry; by the time she arrived there was a police cordon, and she was stopped. Yvette Alleyne is the younger daughter of Mr and Mrs Alleyne (then aged 26) and lived in a flat 2 floors above 6 Clock Tower Place; she was home that day and went down when she heard a lot of banging and a dog barking constantly; but she was held outside the police cordon and out of direct sight of the flat; later she saw her father leaving in the company of police officers. Michelle Alleyne is the elder daughter of Mr and Mrs Alleyne; that afternoon her father called her to inform her that the police were at their flat looking for her brother Michael and that he was being taken to the station; after work she went there and saw her father, after 6.00pm, and vehemently protested to the police at the state of his face. Mr Watts is a neighbour who knew the Claimant, had seen the Claimant earlier that day and saw the Claimant as he left the flat flanked by police officers.

[15]I mention, independently of these, and called by the Defendant as a witness, PC Campbell who was a neighbourhood police officer and who knew the Claimant. He was asked to assist the TSG and other officers in executing the warrant. He was then engaged in the cordon after entry, and in trying to keep some of the media away who had been filming close by and were trying to film this entry. He saw the Claimant coming out on the walkway accompanied by 2 plain clothes police officers. He was clear that he did not himself think, and did not tell anyone else, that the Claimant had been arrested. He told me that knowing the Claimant, “he’s a decent man, I wouldn’t have expected him to be arrested”. Asked whether he would expect the Claimant to have obstructed a police officer, he replied “certainly not”.

[16]On the Defendant’s side, 14 police officers who attended at and/or entered the flat gave evidence: they are named above.

[17]It is clear that the first 4 TSG officers to enter the flat were PC Timmons, PC Gillan, PC Barry and PC Jacqueline Wells, in that order. PC Leggett had forced the door with the “Enforcer” tool; having removed the door, he did not cross the threshold of the flat. PC Mark Thomas and PC Mayer entered the flat after PCs Timmons, Gillan, Barry and Jacqueline Wells. PS Zeegen-Holt was at the rear of the property when entry was made, with a Taser in case any suspect in the property might try to escape to the rear. PS Maddison was outside the front of the flat, but as a supervisor, and was thus not part of the initial entry.

[18]DC Quartermaine, a detective police officer, went into the flat once informed that it was secure, spoke to the Claimant and interviewed him as to the whereabouts and movements of his son. Later in the afternoon, and probably about 4.30pm he accompanied the Claimant to the police station, in order according to him for the Claimant to be examined medically by the Forensic Medical Examiner (“FME”) which in the event occurred a little after 6.00pm; on examination the FME said the Claimant should go to hospital, and this officer accompanied him to the hospital. DC Aldridge was present initially at the flat but went back to the police station until later when with DS Southon she returned to the flat to pick up the Claimant and DC Quartermaine.

[19]DS Southon entered the flat very shortly after entry had been made and says that he opened the book 101 (which is the search record book) and handed the search warrant and the “Information to Occupants” form which is attached to book 101 to the Claimant. He left the flat with DC Aldridge to deal with other matters relating to the enquiry, but returned with DC Aldridge to pick up the Claimant and DC Quartermaine and drove them to the police station.

[20]It is not in dispute that the Claimant did suffer injury to the face, and injury to the ankle.

[21]The central conflicts in the evidence in this case are as follows: i) The Claimant says that when the door caved in, and was then lifted away and put outside, someone then said something like “down on the floor! This is a raid!”. No one shouted “police”. The police officers who gave evidence before me variously said that they remembered such being shouted or that such would have been shouted. ii) The Claimant says that he immediately went to the floor on his front, was ordered to put his hands behind his back and complied. “At this point I was handcuffed to the rear straight away. I was not blocking their path; I was down on the ground as I complied immediately”. PC Timmons says that as he entered he immediately grabbed hold of the Claimant by his right arm, as he did this the dog jumped up and attempted to bite his hand, he shook the dog off but “now Mr Alleyne was not cooperating with me and attempted to pull away from me. I went to get a better hold on him as I suddenly felt the dog biting my lower right leg. ….. I now had Mr Alleyne struggling in my left arm and I was now fighting the dog off with my right hand and leg…… I feared that I was going to suffer a serious injury from the dog and I believe that Mr Alleyne was being obstructive in us entering the flat to allow his son time to escape, as until I had dealt with him and dog nobody could get past me”. (It is common ground between the Claimant and the police that it was a narrow hallway barely wider than the doorway itself, and no more than some 1 metre wide). Of potential importance, PC Timmons’ account is that “Mr Alleyne then broke free and went back towards a closed door. With the dog still attached to my leg I again grabbed hold of Mr Alleyne as the dog then went for my gloved hand”. Once the dog suddenly shot out of the way he was able to gain control of Mr Alleyne and “due to him still not complying I took him to the floor” handcuffed him to the rear, thus allowing the rest of the unit to get into the flat. iii) The evidence of the Claimant is that as he lay face down, with his head held up slightly all he could see was officers running into his home, he could see their helmets, “I was then kicked deliberately to my head by one of the officers, whilst I remained in handcuffs, on the floor. Although I am not certain, the officer who kicked me was probably the fifth or sixth who entered my home. It was definitely not the first officer who handcuffed me. ….. The officer who struck me did so deliberately. All of the other officers were able to avoid me and I remember they came in much quicker. The officer who kicked me to my head entered the property much slower than the officers who avoided me”. The Defendant denies that the Claimant was kicked deliberately. Each of the police officers who gave evidence before me denied that he or she had kicked the Claimant deliberately and none admits doing so accidentally. Likewise the Claimant says that after he was struck deliberately to the head he felt a blow to his right foot to the inner ankle which he believes was also a deliberate act. The Defendant, and the police officers who gave evidence before me took the same stance as in relation to the injury to the face. iv) The evidence of the Claimant is that once helped into his living room his handcuffs were taken off and that he kept saying that he had been injured and explained that he could not weight bear on his right leg when he got up due to the injury. He said that he needed to see a doctor. “Although I was visibly injured and complaining about the fact that I needed medical attention, I believe that DC Quartermaine questioned me for about 2 hours before I was allowed to leave the flat. I co-operated with him as I thought the situation would get nasty if I insisted on medical treatment”. He did not say (as alleged) that he would stay until his family arrived and he provided a statement to DC Quartermaine “as he just refused me medical attention and I thought this was the only way that I would see a doctor. DC Quartermaine did not offer to drive me to Islington police station. I was told by him that I had to attend in order to “tie up loose ends” and that I would be allowed to see a doctor after that.” The evidence of DC Quartermaine is that the Claimant had initially been handcuffed, and that there was visible injury to his eye “as he was holding what looked like a bag of frozen peas to his eye”; “Despite the fact that he had injured his eye, the Claimant was calm and did not complain of any other injuries at this time”. The Claimant was upset that he had been injured when police entered the premises but “he certainly did not claim to have been deliberately injured attacked or kicked by any officers. In oral evidence he told me that the Claimant was remarkably calm considering that there had been forced entry. He did take a statement from the Claimant, but would not have taken the statement had the Claimant appeared to be in visible pain and wished to have medical attention and “I strongly deny that I prevented him from seeking medical treatment at any time. In fact, I asked him on a number of occasions if he wanted to see a doctor and he was insistent that he wanted to wait for his wife and daughter to return home”. v) The evidence of the Claimant is that once at the police station, he was put in a room with DC Quartermaine and was again asked questions about his son’s movements. He responded providing the same information as he had previously given. “Despite the fact that I was asking for medical treatment, no doctor was provided at this point”. He recalls his wife coming to the police station and spoke to her briefly to explain what had happened. “It was at this point that I remember DC Quartermaine saying that they needed to call a doctor… by now, my ankle was swollen and I remained in a lot of pain. I believed that had I tried to leave the police station, I would have been prevented from doing so. The officers had been hostile, had assaulted me and had refused me medical attention. I was scared that I would be assaulted again if I did not comply”. The evidence of DC Quartermaine is that when DS Southon and DC Aldridge arrived at the Islington police station he went to the custody desk and made arrangements for the FME to see the Claimant; that he had to continuously walk from the station office area to the custody area to try to get the Claimant seen, because he was not in custody; and if he had been in custody then his welfare would have been the concern of the custody sergeant: the Claimant was not either expressly or impliedly at any stage detained and he had arranged for return to the police station in the belief that attendance at A&E might involve a very long wait whereas there was a prospect of the Claimant being seen more quickly by the FME at the police station.

[22]Rulings on Evidence. The Claimant sought admission of evidence relating to unsubstantiated complaints against officers involved in the present case. The Defendant resisted admission of any of this evidence on the basis that as with complaints against doctors barristers and judges there may be occasions where complaints are well founded but the opposite is much more often true; that TSG officers are peculiarly vulnerable to complaints as their role is necessarily a confrontational (and dangerous) one; that they were by their nature complaints which had not been substantiated; and/or they were not sufficiently relevant.

[23]In a civil case such as this, the test of admissibility of similar fact evidence is one of relevance only, namely that the material to be adduced is potentially probative of an issue in the action and it is for the trial judge to consider whether to admit the evidence would be fair, weighing its potential probative value against the capacity both to cause unfair prejudice and to increase disproportionately the length and complexity of the trial (O’Brien –v- Chief Constable of South Wales Police

[2005] AC 534

HL).

[24]The Claimant sought admission of such evidence in relation to 3 complaints; I ruled in favour of submission in respect of 2 of the incidents and against admission in respect of the other. I need not here repeat the detailed reasons which I then gave.

[25]On the last day of evidence, application was made by the Defendant to adduce evidence of acting Police Sergeant Saluja, and Police officer Lee Hayes of the TSG group. Statements had not been served previously, and it was proposed that detailed statements now be admitted, without satisfactory explanation by witness statement or otherwise why they had not been produced before. In respect of a PC McGuire a brief statement had been served, in identical form to others, that “entry was forced at 13.55 hours and we conducted a rapid entry into their premises….. the purpose of the warrant was to arrest suspects for the murder of Ben Kinsella – operation Docena refers” but no more detailed statement had been served. A draft witness statement had been prepared but not served as it was not signed. The officer himself, away in the United States, had been located but was not available to give evidence by video.

[26]I ruled against admission of the evidence of Acting Police Sergeant Saluja, or PC Hayes, or admission of the yet draft statement of PC McGuire having regard to the lateness of service of the statements, the lack of explanation why they had not been made before, and the potential for unfairness to the Claimant and/or the process of the Court in dealing justly with the Claimant hand. I need not repeat more fully the reasons which I then gave.

[27]Preliminary Observations. In opening written submissions Counsel for the Claimant observed that in relation to most aspects of the claim the issues were primarily factual. I respectfully agree, although there are some issues of law with which I deal below.

[28]In reaching conclusions as to each matter of fact on the balance of probabilities, I remind and direct myself that whilst it may be possible to reach provisional views on the balance of probabilities, or even on a strong balance of probabilities, on particular factual issues which are disputed, a final view can only be formed when having regard to all the evidence. Counsel for the Defendant observed in opening and in closing submissions that the Court should have regard to the courage of police officers such as these, a number of whom have commendations for their actions in the face of danger. I do, but such is relevant to a measured view of what may reasonably be required of police officers in defining the scope of a duty of care as opposed to any presumption in favour of accepting the evidence of those officers where it is in conflict with others. The latter would be inconsistent with a dispassionate and rigorous approach to the evidence, unfair to the Claimant and indeed a disservice to the police officers themselves.

[29]I have also borne in mind that it may be unwise to attach undue importance to the demeanour of a witness, inherently, and bearing in mind that police officers may be much more used to the loneliness and insecurity of the witness box compared to lay witnesses.

[30]Expert Medical Evidence. I have expert evidence as to the injuries sustained both as to the eye and as to the ankle. I need not set them out in detail, because if findings of liability are made counsel for both parties indicated that they expected to be able to agree quantum both as to injury, and any unlawful entry or detention.

[31]I record that at A&E the registrar recorded “58 year old male who alleged being pinned to the floor by the police. His head was hit on the floor. He seems to have sustained lacerations to the right cornea.”. As to the eye injury, because of that concern he was seen at Moorfields Eye Hospital in the early hours of 1st July 2008 where the corneae were found to be normal with no evidence of inter ocular inflammation. The letter from Moorfields states “there is marked upper lid bruising and swelling on the right side, with scattered sub conjunctival haemorrhages of which the posterior limit is not visible on the nasal side. The corneae are normal with no evidence of intra ocular inflammation. He does have some commotio retinae on the right side in particular that the infero temporal periphery. He has a full range of ocular movements with no pain nor diplopia currently.” Neither party led expert evidence at the manner in which such injury must, or may have been caused.

[32]As to the ankle injury, in their joint statement the respectively instructed orthopaedic experts did consider the mechanism of injury but stated simply this “They agreed that, in fact, the mechanism is basically an avulsion i.e., pulling off injury of medial malleolus and would actually be compatible with either of the two mechanisms of injury; … it was Mr King’s opinion that the pulling on the lateral side of the ankle would be consistent with the account of the injury provided by the Claimant. Both experts agreed that this type of malleolar fracture could also occur with a fall”.

[33]Thus the expert medical evidence does not resolve the manner of causation of the injuries.

[34]Provisional Findings of Fact. There are matters of credibility in relation to principal witnesses which I will have to explore later. Not least of these is the fact that, whereas the Claimant in his statement to the police of 30th June 2008 gave honest and truthful evidence as to the whereabouts and movements of his son at times important to his possible participation in the murder, at the contested trial of his son at the Central Criminal Court the Claimant gave contrary evidence which he must have known to be false. There are, however, certain issues of fact upon which in my judgment it is possible to reach provisional views on a strong probability of fact.

[35]Did police announce themselves as police on entry?

[36]This is an important question of fact because of the requirements of section 16 PACE. By section 16(5) PACE, “where the occupier of premises which are to be entered and searched is present at the time when a constable seeks to execute a warrant to enter and search that, the constable –(a) shall identify himself to the occupier and, if not in uniform, shall produce to him documentary evidence that he is a constable;

(b) shall produce the warrant to him;

(c) shall supply him with a copy of it”. (I deal elsewhere with whether the police officers entering the flat did so, as is alleged in the Defence, pursuant to section 17 PACE).

[37]First, I see no disadvantage to the police, and positive advantage, in announcing themselves as police on entry. The physical entry into the premises is violent, caving in the door. The person or persons who are within are unknown. The person or persons within may fear violent gang intrusion or may themselves be violent and/or involved in drug supply (such as was the briefing here). To shout police may diminish the prospect of resistance.

[38]Second, there was some persuasion in the evidence e.g. of PC Mark Thomas that “the word “police” is paramount – so they are left in no uncertain terms who it is [who are entering]”.

[39]Third, I bear in mind in the Claimant’s favour that police officers may be tense: in answer to my question, PC Timmons the first to enter told me that immediately beforehand “my adrenalin is up and you’re a bit nervous. ….. you’re nervous bordering on scared”. I bear in mind also that the Claimant was emphatic in oral evidence that the word “police” or its equivalent was never uttered. However the Claimant himself gave the following answers:

“Q. They [those who entered] were dressed identically? A. Yes Q. They wore helmets with visors? A. Yes Q. They were obviously not motorcycle helmets? A. Yes Q. It was what you recognised as police riot gear? A. Yes Q. They were all wearing blue padded clothing? A. Yes Q. You can have had no other conclusion but that they were police officers? A. At the time, I never knew who they were.”

This is in itself an unpersuasive answer. Q. They wore helmets with visors? A. Yes Q. They were obviously not motorcycle helmets? A. Yes Q. It was what you recognised as police riot gear? A. Yes Q. They were all wearing blue padded clothing? A. Yes Q. You can have had no other conclusion but that they were police officers? A. At the time, I never knew who they were.”

Q. You can have had no other conclusion but that they were police officers?

[40]Fourth, and critically, the Claimant himself when giving oral evidence at the Central Criminal Court for his son’s trial stated “well I heard the commotion like somebody’s trying to break down the door. I was in the kitchen at the time so I came to see what had happened and just as I got there, the door caved in. So they said to me, “Officers. Get down on the floor” (emphasis supplied)”. These were the Claimant’s own words and his own description.

[41]Fifth, although less critically, whereas the first three police officers through the door had other preoccupations, I found PC Jacqueline Wells an impressive witness. As I relate below, she was happy to confirm the Claimant’s assertion that “down to the ground” was shouted (“Definitely”); her evidence was internally consistent. In her witness statement she said that “shouts of POLICE were sounded as the door went in to alert the occupants that we were police officers”. She adhered to that evidence when challenged in oral evidence.

[42]In my judgment, subject to reconsideration in the light of any other compelling evidence, there is a high probability that the TSG police officers announced themselves as police as they entered the premises.

[43]Did the police serve the Claimant with a search warrant?

[44]It does not follow that because a search warrant ought to be served on the occupant of the premises, it will be. It might be missed between different officers at the scene; even a well intentioned officer may omit to do so when other matters in the search itself appear pressing. This was a murder investigation and there must have been pressure upon the investigating officers. DS Southon conceded in oral evidence that it was extremely hectic that day.

[45]That said, failure to comply with the requirements may have far reaching consequences. A failure to comply with the requirements to section 16(5) renders the entry/search under a warrant unlawful in its entirety from the outset, such that all action subsequent to the entry are unlawful: “An entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below” (section 15(1) PACE). See R.(Redknapp) v Commissioner of Police for the City of London

[2009] 1 All ER 229

), and R.(Bhatti) v Wigan Magistrates Court

[2010] 3 All ER 671

[46]This was to be a search of the home of a prime suspect for murder by stabbing. The impetus to comply with relevant requirements was here, in my judgment, inherently a powerful one.

[47]Miss Law, Counsel for the Claimant, drew attention to photographs of the flat, in the aftermath of entry and interview of the Claimant (witness the pink stained paper tissues from dabbing the blood injury to the eye) and the absence of any apparent search warrant upon the table. The evidence of DS Southon was, “I specifically showed him the warrant; he was certainly holding it; he was also given Notice 101; I was explaining it to him in detail…. He looked at it in his hand, I remember explaining that it would be left with him. Along with the notice to occupy which explained his rights”.

[48]The “Notice to Occupy” in question is at Bundle p 249. (The address of the premises is given as number “9 Clock Tower Place”, not “6” but this was not contended to be material). The Claimant accepted in oral evidence that he was given that document. I do not find it easy to see why DS Southon would give him one document, but not the other. In addition to this, firstly the Claimant had been subject shortly before this to a forcing of entry and a rushing in of several police officers in riot gear, which must have been shocking.

[49]Second, in my judgment there are aspects of the Claimant’s description of events, for the period immediately before he was allegedly served with the warrant, which are unreliable.

[50]In his witness statement, he stated that although he could not be sure he estimated that he was on the ground, bleeding, for what seemed like at least 20 minutes (statement paragraph 20). In cross examination he was given the opportunity by Counsel for the Defendant, without pressure, to reconsider that he said that it might have been shorter than that but at the shortest it was “12, 13 minutes”. He also told me that officers were running in and that when he got kicked in the face it was after “5 or 6 minutes”. This is wholly inconsistent with the probabilities of police officers rushing into this small flat to secure it and establish whether his son was there. It is also improbable that the “fifth or sixth” to enter his home did so after 5 or 6 minutes, both inherently, and when there is no suggestion by the Claimant of a substantial gap between the first officers to enter and this officer. I was also told by Police Sergeants Zeegen-Holt and Maddison that each entered the flat a matter of 2 minutes after entry when the flat was already secure. PS Zeegen-Holt, a quietly impressive witness, told me that he saw no-one in the corridor or on the floor; PS Maddison in his witness statement said that when he came in the Claimant was already sitting in his sitting room in the flat.

[51]If all of this were not enough, Dr Davies a Consultant Psychiatrist who prepared a report for the Court on examination of the Claimant, records that “thereafter the Claimant reports that he was informed that the individuals in his property were Police Officers. They subsequently showed him a warrant, adding that they were looking for Mr Alleyne’s son in connection with a murder that had been perpetrated in the locality” (emphasis supplied) .

[52]In my judgment, subject to reconsideration in the light of any other compelling evidence, there is a high probability that the Claimant was served both with the notice of occupation and the search warrant by DS Southon.

[53]Did the Claimant on that day make complaint that he had been “deliberately” kicked? I am satisfied that he did not, on that day. He accepted as much in cross examination. I am bound to observe, however, that I do not attach undue significance to that. Not every person is assertive in complaint. The Claimant was somewhat reticent in manner, certainly in giving oral evidence before me. He was a man who had never been in trouble with the police. He knew that the investigation was of his son as a murder suspect, who he knew had had some involvement at the scene of the murder from what his son had told him. He did say, in the witness statement taken from him that afternoon, “then many officers were running into the address. I was kicked in the right eye; I was handcuffed in the hallway. I’ve also sustained a nose bleed during those events”. In answer to the question, “You did not tell DC Quartermaine that you were deliberately kicked by the police?” he said, “I don’t think that would have gone down very well”. I can readily envisage that the Claimant may have thought that on the day.

[54]Was the Claimant taken to the police station in order to be examined by the FME? Or was he taken there in order to be questioned further, only later being considered for medical attention?

[55]As I have recorded above, the evidence of the Claimant is that he was questioned at the police station and despite the fact that he was asking for medical treatment no doctor was provided at that point; his wife came to the police station and he spoke to her briefly; and “it was at this point that I remember DC Quartermaine saying that they needed to call a doctor I said something like “why didn’t you call him half an hour ago?” (statement paragraphs 46 to 48). It is also the evidence of the Claimant that when examined by the doctor he tried to stand and almost fell over “as I could not put any weight on the ankle” (statement paragraph 51).

[56]At this point, I confine myself to considering whether the Claimant was taken to the police station in order to be examined by the FME.

[57]First, this is what was stated in the detailed letter for action dated 14th January 2009 from solicitors for the Claimant to the Defendant: “having answered DCI Quartermaine’s questions, our client was told that he would be taken to the police station, in order that he could be examined by a doctor”.

[58]Second, and contrary to the implication in his witness statement, in the passages of evidence which I have cited above, he expressly conceded this in cross examination:

“Q. Your understanding was that you were going to the police station in order to be examined by the doctor? A. Yes.”

[59]In evidence, the following contentions were vigorously pursued in questions to police officers, in particular DC Quartermaine. The Claimant clearly needed medical attention; it was evident that he needed to attend hospital; it was improbable that he would be examined earlier if seen by the FME, compared to the hospital, the explanation given by DC Quartermaine. These were serious injuries: an ankle on which according to his own account he was not able to weight bear, and an eye injury which was inherently a “head injury”. The FME might not be available.

[60]Whilst I have reflected at length on these contentions, I find them unpersuasive, for the following reasons.

[61]The account of the Claimant is that he was not able to bear weight when at the police station – or, it would seem, at the flat in that he describes himself as hopping to the sofa. In the CCTV footage at the police station of the Claimant shortly before his examination by the FME he is seen to be weight bearing to some extent, but a qualitative view is not possible on the CCTV. In my judgment, the Claimant is demonstrated on the evidence to be a man who was stoic. Following this injury, he was advised at the hospital not to weight bear, and was provided with crutches, but as he agreed, he did so in the days following the incident, apparently out of embarrassment to be seen to be using crutches.

[62]It is in my view of significance that PC Campbell, plainly sympathetic to the Claimant, did not in his witness statement or in oral evidence make reference to significant limping. The neighbour, Mr Watts, did refer to him limping as he came out of the flat walkway. However Mr Watts, although an elderly gentleman who was a delightful witness, was in my respectful view unreliable in his description of the Claimant at this point. Mr Watts suggested that the Claimant’s hands were at the back of him as if he was handcuffed (which he was not); that he was being “marched out of the flat” with a police officer on either side of him each of whom had boiler suits on (which they plainly did not); that PC Campbell to whom he spoke said he didn’t even know why he was being arrested (whereas PC Campbell stated that it did not appear that the Claimant was under arrest). PC Campbell was clear in oral evidence, that no one told him [PC Campbell] that the Claimant was arrested and that he did not say to Mr Watts that the injury might have happened when he was arrested. I prefer without hesitation the evidence of PC Campbell to that of Mr Watts.

[63]Each of the police officers who had any dealing with the Claimant described him as calm and lucid in his conversation albeit, per DC Quartermaine, upset at the fact of injury. It was a nasty blow to the eye, as one can see from the CCTV footage at the police station, but a badly swollen eye or eyelid simply is not redolent of “head injury” in itself.

[64]The evidence of DS Southon was that “for an injury like this” normally they would tell the person to go to the doctor. He told me that normally you can see the FME relatively quickly. “Quite often you would go to the desk officer, say I’ve got a witness to see the FME, and quite often the custody officer will slip them in between those who are in custody – because they’re [the ones who are detained in custody] not going anywhere anyway”.

[65]In addition to this, it is common knowledge that one may have a very long wait on attendance at a hospital A&E Department. When the Claimant was seen that evening by the triage nurse at the hospital, the nursing assessment was such that he was asked to wait and had to wait a further three and a half hours before being medically examined. I deal below with the evidence as to a practice of seeking examination of a witness by the FME and it does not seem to me inherently improbable that police officers, such as DC Quartermaine, would consider there was reason to think the Claimant would be seen more quickly by the FME than at A&E.

[66]Here too, in my judgment, subject to reconsideration in the light of any other compelling evidence, there is a high probability that when the Claimant left the flat to go to the police station he was told that, and it was in fact a purpose of DC Quartermaine, that he would be seen by at the police station by the FME.

[67]It remains for separate consideration whether the Claimant was in fact also questioned at the police station, with deferral of medical examination until he had answered questions.

[68]I will shortly have to deal with issues of credibility of the principal witnesses, and the facts of the individual claims respectively of trespass to premises, trespass of the person by assault, alternatively injury by alleged negligence, and false imprisonment alleged up to 6.09pm.

[69]First, however, I need to deal with whether certain witnesses were in truth able to assist me with the critical issues of fact as to the incident or incidents in which they were engaged.

[70]To what extent does the evidence of PC Gillan and PC Barry assist me? Counsel for the Claimant contended that as to the conflict between the Claimant and PC Timmons as to what happened immediately after entry, these officers did not assist. I respectfully agree.

[71]PC Gillan was armed with a fire extinguisher, in order to deal with a potentially aggressive dog. It was a small hand held Halon gas fire extinguisher. It appears that these are regularly used where there may be aggressive dogs in that the information or advice is that such is an effective way of dealing with a dog which is attacking someone, in that the cold water from the extinguisher freezes the dog’s nose and usually the dog runs away.

[72]In the words of PC Gillan: “When we entered the property, the Claimant had an aggressive dog with him at the entrance of the flat. I saw a dog attack PC Glen Timmons and bite him on the leg behind his leg guards. In all my experience of dealing with entering properties where there are dogs, I have never seen a dog attack anyone in this way; the dog had bitten PC Timmons’ leg and was refusing to let go”. (There was evidence that even aggressive dogs, faced head on, do not usually bite). PC Gillan sprayed the contents of the fire extinguisher onto the dog, but states this had no effect and the dog refused to let go of PC Timmons’ leg. He then stepped aside whilst the officer behind him, PC Barry, used a Taser.

[73]The attention of PC Gillan was upon the dog. In oral evidence, he stated that he was concentrating on the dog, and that “when we dealt with the dog we went forward to clear the field”. When the dog moved, he moved. Given the limited content of his witness statement, cross examination was appropriately limited. He said little if anything about the nature of the contact between PC Timmons and the Claimant, and as to the possibility that if the Claimant was on the ground he himself could have kicked the Claimant accidentally if he moved forward, he said simply “there’s always that possibility, but I do not recall it. I can’t rule out that someone else kicked him, but I didn’t see him”. He said expressly, “I’m focussed on dealing with the dog”.

[74]PC Barry was third in line, and equipped with a Taser. He relates that PC Gillan sprayed the dog with a Halon fire extinguisher but that unfortunately it did not appear to have any effect on the Claimant’s dog. The dog was attacking PC Timmons. He was concerned for the safety of PC Timmons and according to his witness statement was also concerned about the fact that the dog was being used as a delaying tactic so that Michael Alleyne Junior had time to escape from the property. (It is clear that Michael Alleyne Junior was not in fact present at the property). PC Barry discharged his Taser at the dog itself, believing that it would bite his colleague again, “or bite me if the opportunity presented itself”. He says that he shouted “Taser, Taser” at the same time as discharging the Taser in order to provide a warning to the other officers. He states that the dog ran away, he forced a locked door on his left with his shoulder, and he and PC Jacqueline Wells searched the bedroom.

[75]First, it is plain that his attention was on the use of the Taser, and afterwards on collecting the parts of the deployed Taser and proceeding to record that; he told me that the Taser was on pilot at this time. He was only the second person to use a Taser in the pilot, and that he was the first officer in the Metropolitan Police to use it on an animal. “That was the focus of my notes when I made these notes”. It is true that in his witness statement, PC Barry stated that he could see PC Timmons “struggling with the Claimant and he was attempting to move him to the side of the corridor and push him against the side of the wall so that other officers could get through” (statement paragraph 8). However, irrespective of other matters, it is clear that the whole focus of PC Barry was on the use of the Taser upon the animal, and upon recording the circumstances of deployment of the Taser.

[76]Second, his various notes reflect that fact: In his EAB notebook, he simply recorded that PC Timmons “encountered” an IC3 male; there is no note or suggestion of a struggle; in his own evidence he does not suggest that the Claimant was struggling with PC Gillan.

[77]Third, in his notes as to the “use of force – Taser – form” he entered a note that “two officers were struggling with the occupant of the flat”. In his Taser deployment form, PC Barry stated that “two officers were struggling with the occupant of the flat one of the officers had been bitten by the dog on his right leg” (emphasis supplied). It may be true, as PC Barry told me in oral evidence, that the Taser deployment form was not an “evidential” document in that it was not intended to be submitted to any Court and was for statistical purposes, for review by those officers who were in charge of the pilot. Nonetheless, it is plain that his focus was entirely on the Taser and whether its deployment could be justified or defended. “The focus of my attention on 30th June was on my use of the Taser”.

[78]PC Barry was pressed with documents relating to the unsubstantiated complaint in relation to complaint C of December 2007 where he accepted, in interview as to the complaint, that he had stood on a bare ankle.

[79]His evidence was that this was a completely different incident with a dangerous drug dealer, believed to have a stun gun; that he had tried to use his hands by way of restraint; that he had stood on the ankle but certainly did not stamp on the drug dealer as alleged. The report as to that complaint suggested that the conflicting accounts of injury may have damaged the credibility of the police officers’ accounts, where the complainant had suffered a black eye. On the one hand, it is in the nature of operations of TSG police officers that they are peculiarly vulnerable to complaints as to their role. I was able to observe the demeanour of PC Barry and I have little doubt that he was an assertive officer when carrying out his instructions. On the other hand, given his preoccupations, there is every reason to doubt that he can significantly assist me as to the circumstances of physical engagement between the Claimant and PC Timmons. I am not persuaded that the unsubstantiated complaint as to December 2007 itself impairs his credit.

[80]To what extent does the evidence of PC Meyer assist me? The witness statement of PC Mayer, dated 5th July 2012, was brief. He was summoned to Court at short notice to give evidence. His evidence was that he did not himself assault the Claimant or see anyone else kick him or assault him in any way. His witness statement records that “the whole incident only lasted a matter of minutes and we returned to Islington police station to complete notes”. In cross examination he readily agreed that it was difficult for him to remember what happened on 30th June 2008, and that the short “MG11” statement dated 30th June 2008 was his best recollection of the incident, which gives minimal, and pro forma, details of rapid entry being effected into the premises pursuant to warrant to arrest suspects for the murder of Ben Kinsella. He agreed that he was towards the back of the team of officers who entered. He did not remember what was shouted on entry.

[81]In oral evidence, he stated “the only thing I recall is seeing the top of his [the Claimant’s] head and across the shoulders of my brother officer. To my recollection I just remember him being straight at the back……. When I got to the point of entry, all I can recall is seeing the top of his head. I can’t recall how many officers were ahead of me. But when I got to the entrance, officers had secured the rooms, that is why I only got as far as I did”. In particular, he said “I saw his head – someone said he had been detained – I did not go anywhere near the Claimant – at the closest point I must have been the length of the corridor, metres away”. In re-examination, asked to estimate the lapse of time between the door being broken open, and his seeing the top of the head of the Claimant, he said that it would be approximately 15 to 30 seconds.

[82]I have some sympathy with this police officer, in being asked to recollect what had occurred four years after his short pro forma statement. I do not derive assistance from his present recollection. According to that recollection, when he got to the entrance of the flat, officers had secured the rooms – that being the reason why he only got as far as he did. There is no doubt that the Claimant went, or was taken to the floor. It seems improbable that he had been on the floor, and was up on his feet literally within the approximately 15 to 30 seconds which PC Meyer related. I have no criticism of PC Meyer, but I cannot place any reliance on his present recollection.

[83]Other than PC Jacqueline Wells, no other officer speaks as to what was to be seen of the engagement between the Claimant and PC Timmons. The principal witnesses therefore, as to this engagement, are the Claimant and PC Timmons himself, with some evidence from PC Jacqueline Wells.

[84]To what extent does the evidence of DC Susan Aldrige and DS Southon assist me as to what passed directly between DC Quartermaine and the Claimant both at the flat, and at the police station? I have limited assistance from the other two detective officers who gave evidence to me.

[85]Once entry had been made, and the flat secured, DC Susan Aldridge went in and saw the Claimant seated in his sitting room, a cold bag (of frozen peas) being held to his face, but it would seem that she before long returned to the police station. She returned, probably about 4.30pm although she did not carry a watch, to the flat with DS Southon to pick up DC Quartermaine and the Claimant. In her witness statement she said that the Claimant was “never detained or arrested at any time” and in oral evidence told me that at the police station the Claimant was free to leave whenever he wanted to. However she accepted that she was not there in the company of the Claimant and DC Quartermaine, and so did not know what happened her assumption being that the Claimant “was giving a statement to a colleague”. The following questions and answers were given “Q. You cannot say that he was not detained there? A. No. Q. You drove him to the police station…. Later at the police station, you cannot say whether he was detained? A. No”. She did tell me that her understanding was that the Claimant was taken to the police station to see the FME but she conceded that there might be two purposes for him to be taken to the police station, one to answer questions and secondly to see the FME:

‘it was a possibility’

. She spoke of the desirability of Mrs Alleyne and her husband being separate when questions were being asked of Mrs Alleyne. In fairness, in re-examination she disavowed any practice that police should detain a witness against the witness’ will, adding that “if you upset the witness you’re not going to get the information from them”. However she is not able to assist me with direct evidence of what was or was not said, or on the Claimant’s case conveyed by clear implication.

[86]The same applies to DS Southon who returned to the police station after he says he served the Claimant with the warrant and notice. He returned with DC Aldridge to pick up the Claimant and DC Quartermaine but was not present while DC Quartermaine was taking the witness statement from the Claimant at the flat, or had contact at the police station. He also said of the Claimant, “he was a witness who had assisted us. We probably felt a bit sorry for him. It’s not our role to take a person to hospital but quite often we would take an injured witness to see the FME. It is not unheard of”. Of taking this Claimant to hospital, he said “there is no reason for us to take him, save that he’d spent a lot of time with us, he’s given us a statement and been helpful. He’s had his door kicked in. We felt sorry for him.”

[87]It will be apparent from the foregoing that the principal witnesses as to physical engagement between PC Timmons and the Claimant are the Claimant and PC Timmons themselves; the principal witnesses to what passed between DC Quartermaine and the Claimant are the Claimant and DC Quartermaine themselves; and that other evidence which may throw light on these conflicts of evidence is for the most part not direct evidence as to the matters complained of, so that the Court must be careful not to place undue weight upon them.

[88]Matters of credibility. Issues of credibility are raised on either side as to in particular the evidence of DC Quartermaine, of PC Timmons, and of the Claimant.

[89]The Claimant. On 30th June 2008 the Claimant gave a detailed witness statement taken down in handwriting by DC Quartermaine, which he signed as true, and which was typed up at the station and signed by him as true. It gave important information as to the whereabouts of his son on the night of the murder. In January 2009 he contacted DC Quartermaine saying that he wished to give a new statement. He did so. Pursuant to that statement, he gave evidence at the trial of his son for murder at the Central Criminal Court. He gave evidence on oath before the jury that the account of his son’s movements, set out in the witness statement of 30th June 2008, was wrong. This was on 11th May 2009, some months after the new statement he had given.

[90]The evidence which he did give in May 2009 is a wholly different matter. At the outset of questions about the evidence which he had given on oath to the Central Criminal Court, I gave the conventional warning to the Claimant that he need not answer a question if he considered that it might incriminate him. There followed an uncomfortable passage of evidence where, repeatedly, the Claimant was constrained to refuse to answer on the basis that answer might incriminate him. Counsel for the Claimant in closing submissions invited me to weigh in the balance that at the Central Criminal Court the Claimant was being called as a prosecution witness against his own son, on an occasion when he had no choice but to give evidence, whereas he has elected to bring the present case to trial; and I would myself observe that the Claimant is a palpably decent man, one who moreover had given evidence which led to his son being arrested on the night of 30th June 2008, and one who was spoken of well by PC Campbell the neighbourhood police officer.

[91]However in his evidence on oath at the Central Criminal Court the Claimant went far beyond feigned difficulty of recollection, such as one might, with humanity, be inclined to understand and forgive. He gave positively false answers which he must have known to be false. Not content with this, he asserted that DC Quartermaine had fabricated and inserted passages into his witness statement. In this, to be blunt, he was consciously lying on oath. It would be contrary to decency or fairness for me to conclude other than that this deeply and gravely impairs the credibility of the evidence he gave on oath before me.

[92]DC Quartermaine. A central part of the evidence of DC Quartermaine is that he had asked the Claimant whether he wanted to see a doctor, and the Claimant himself had declined. At paragraph 15 of his witness statement, DC Quartermaine stated this “When the Claimant’s family returned home, the atmosphere changed dramatically. It had previously been very calm, but one of the Claimant’s daughters was very upset and hostile towards me on returning home. I can completely understand that she must have been upset to find her father injured and her brother a suspect for murder. I explained what had been going on to the Claimant’s wife and daughters and I explained that he was reluctant to seek medical treatment. I offered to arrange for the Claimant to see the force medical examiner (the police doctor) at Islington police station. The reason for this is that I thought there was a much better chance of the Claimant being able to see a doctor quickly, rather than to wait to see his GP the following day, as he proposed to do. The Claimant’s family thought this to be a good idea and managed to persuade the Claimant to go. The Claimant was only persuaded to go with the help of his own family who thought that medical attention should be sought that day. They were in agreement with me”.

[93]At the outset of his evidence DC Quartermaine told me that the occasion when the atmosphere had changed dramatically was “I believe one or two days later when I visited the family address, on a further occasion”.

[94]PC Timmons. The account of PC Timmons is of engaging physically with the Claimant, so as to take him to the ground when further from the entrance doorway and nearer to the door to one of the bedrooms. Photographs taken on the day after entry show blood staining on the floor mat immediately adjacent to the doorway itself, and just beyond it, some blood stains on the floor. Counsel for the Claimant put it, and it was not challenged, that forensic scene of crime investigation after entry established that this blood was that of the Claimant; she submits this is independent and objective evidence supportive of the account of the Claimant that he went to the floor with his head closer to the doorway and wholly irreconcilable with the account given by PC Timmons.

[95]Neither party adduced expert opinion evidence as to how such stains might have come to be so located, or as being consistent or inconsistent with either party’s case. The Claimant did have a nose bleed, but there is no evidence that he was seen to be bleeding heavily or nose bleeding as he was escorted from the flat (see e.g. the evidence of PC Campbell) and on the clear balance of probability I find that the blood stains were not occasioned by that. Therefore it is likely that they were left before he went to sit in the sitting room. It is however of strong interest that in cross examination as to his location when kneeling on the head/upper part of the back of the Claimant, PC Timmons stated that he was “slightly nearer by then to the front door” and “half a metre?” back from the front door itself.

[96]It is not an issue which I have found easy, and I return to it below.

[97]I therefore now turn to the individual claims made in this action.

[98]The entry. Having considered the whole of the evidence, I find on the balance of probabilities that the police did announce themselves as police on entry into the flat, and that shortly afterwards the Claimant was served with the search warrant for the premises (as well as the Notice to Occupy). It follows that the entry and search was made lawfully pursuant to section 16 PACE, in respect of all the police officers including the detective police officers.

[99]First, the original account in his witness statement cannot be correct: the wife of the Claimant, Mrs Sandra Alleyne, was not allowed to go into the flat on the day of the entry or until the early hours of the next morning; Yvette was held at the cordon on that day; Michelle was at work until 5.30pm and saw the Claimant only at the police station. The account given in the original witness statement is one interwoven with the events of that day and in terms of anticipation of and persuading the Claimant to go for medical examination. This cannot be accepted. It is true that this is a statement made and signed only on 27th February 2012, over three and a half years after the incident, but the change to account of the atmosphere changing dramatically on a visit one or two days later is a radical change, and does not explain the interweaving to which I have referred. Counsel for the Claimant put it directly to DC Quartermaine that this was a fabrication, to conceal and explain the fact that on the day by clear implication he was not allowing the Claimant to go for medical examination until his questions had been answered. On its own terms, the explanation given by DC Quartermaine to me was simply not satisfactory. I shall need to weigh whether this was conscious fabrication or dissemblance, or incompetent reconstruction of memory three and a half years later.

[100]The letter before action by solicitors on behalf of the Claimant was written in January 2009. Counsel for the Claimant invited me not to draw adverse inference from the juxtaposition in time of the letter before action in respect of his own injuries, and the new statement given to the police. I am willing to do so. This is not a matter of indulgence to the Claimant. In relation to his own complaints against the police, the medical notes of 1st July 2008 had not recorded “deliberately kicked” by the police, but in relation to the eye injury had related “allegedly hit by the police in the right eye with boots yesterday”.

[101]It is therefore academic whether police officers entered also in reliance on their powers under section 17 PACE. (Section 17(1) provides that “a ... constable may enter and search any premises for the purpose …. (b) of arresting a person for an indictable offence”). There is no reference at all to section 17 in the pro forma statement by each police officer as to entry, which did refer to the search warrant. However I would have accepted the evidence of PC Jacqueline Wells that [they] “ were aware his son could be there so we also went in under s 17 … No one would have told us [it is a good idea to refer to section 17 in the pro forma statement] because it’s one of our powers. We do it day in, day out. He was believed to be there. So he was to be arrested if he was there”.

[102]Assault/Battery. The Claimant’s case is that he went to the ground himself following the orders of the officers and that thereafter intentional force was used on him by the officers to handcuff him, and assault him while he was on the ground, causing him injuries to his right eye and his right ankle.

[103]The Defendant denies that the Claimant went to the ground voluntarily and asserts that he struggled with officers; contends that any injury was caused by accident; and that force used was lawful and reasonable (“where any provision of this act – (a) confers a power on a constable; …. The officer may use reasonable force, if necessary, in the exercise of his power” section 117 PACE); and/or was lawful and reasonable because the Claimant had not been compliant upon entry so that it was necessary to restrain him to allow other officers to enter and search the premises (section 3(1) Criminal Law Act 1967).

[104]As I have recorded, as a matter of law, the burden is on the Defendant to prove that it was necessary to use force on the Claimant and that the force used was reasonable in accordance with either legislative provision. Counsel draws my attention to the observations in Sheppard v Home Office

[2002] EWCA Civ 1921

at paragraphs 13 to 14, where it is held that “… There will be a powerful evidential burden resting upon the Authorities to demonstrate that responsibility for the injury … does not lie at their door. It must be so as a matter of common sense ... injury occurring when a person is in the custody of servants of the state plainly calls for an explanation. It does not follow, as I have said, that when it comes to a civil suit for damages the adjectival law relating to the burden of proof is changed; but the position is of course that a State Defendant in such a case will virtually inevitably be required to put forward a substantial positive case on the facts if he is to avoid the conclusion that the Claimant’s case is proved”.

[105]As to PC Timmons, he was in demeanour a straightforward witness. That is only the start of any enquiry (see above). In his answers themselves, he was straightforward e.g that from his point of view he could not say whether another officer had kicked the Claimant deliberately or carelessly to the ankle

[106]I have recorded above that I do not derive significant assistance from the evidence of PC Gillan or PC Barry as to the physical engagement between PC Timmons and the Claimant.

[107]I do pay considerable heed to the evidence of the fourth officer to enter, PC Jacqueline Wells. Her evidence was careful and considered. In her witness statement she had said “although it was difficult for me to see exactly what was going on as I was towards the rear of the line of officers, I remember that the dog bit one of the officers and that there was a struggle at the entrance to the flat. I did not see the dog bite the officer due to my position, but was aware of the incident as it was shouted that someone had been bitten.”. In oral evidence she gave answers straightforwardly.

[108]She readily agreed that if PC Timmons, PC Gillan and PC Barry were ahead of her she would not have a clear view of what was ahead of her in the corridor. The following questions and answers were given, “Q. The struggle was of PC Timmons – with the dog. A. I knew something was going on but I can’t see what is going on in the corner. If it had been a dog, he would have leant down. Q. Your witness statement says ‘Mr Alleyne was taken to the floor as he was not compliant and the other TSG officers could not enter’ – that is something you learned from other officers? A. If someone is not being compliant, it is standard practice to take the person down. Q. Your recollection is of a struggle, and that there was a dog, that is probably as much as you recollect? A. From what I saw he was struggling with someone at chest height, not lower down. As the door’s being put in, he’s struggling with something in front. Q. In your witness statement you say ‘I do not know if he fell to the floor as he struggled with PC Timmons’ – you did not see him go to the ground? A. No Q. You did not see him being taken to the ground? A. I’ve seen a struggle at the front door Q. [The witness statement being of January 2012] you would have had a much clearer recollection when you wrote your MG11 statement [on 30th June 2008]? A. Yes Q. In your MG11 statement of 30th June 2008, there is no mention of a struggle? A. After the search, the suspect wasn’t there, Mr Alleyne was there. Q. If he had been obstructing the police, it would have been mentioned? A. To be fair, I didn’t have a major part in dealing with Mr Alleyne. I had a very minor part. This is me putting me at the premises with other officers who have dealt with the struggle they were the ones who were involved.” A little later:

“Q. Mr Alleyne went down voluntarily? A. I wouldn’t say voluntarily.”

[109]She went on to say that she had not herself deliberately kicked the Claimant to the eye or ankle, and was certain that she had not touched him as she went in.

[110]It is of interest that in her witness statement she recounted that the entrance to the flat was extremely narrow and dark, she remembered running past the Claimant and PC Timmons who were on the floor, “there was little space to move” and “upon entry to the flat, we each went to our nearest or next point of danger, as quickly as possible. I cannot remember what room I went to in the flat. This entry was over within seconds”. It was a very small flat on one level and it was quickly established that the suspect, Michael Alleyne Junior, was not present”. It was this officer, who seeing the swollen eye of the Claimant, had the common sense to ask another officer in plain clothes to get some frozen peas out of the freezer to put on the wound.

[111]I am careful not to make assessment of this witness, (or any other), with undue reliance on demeanour. However her answers were careful, considered, measured and consistent. I found her to be an impressive witness.

[112]Before proceeding to make any finding of fact, I need to record the answers of PC Gillan, PC Barry, PC Mark Thomas, and PC Wright as to whether they deliberately or accidentally kicked the Claimant.

[113]It was not suggested to PC Gillan that he had kicked the Claimant deliberately (unsurprisingly, as the Claimant’s case is that it was the fifth or sixth officer who did so). He was asked whether it was possible that he could have kicked the Claimant accidentally as he moved forward. He answered that when the dog moved he moved and that there was always that possibility but he did not recall it.

[114]PC Barry was asked whether he deliberately kicked the Claimant and denied that he had done so and he did not believe that he had kicked the Claimant accidentally – “I would have felt the unsteadiness, if I’d stood on something, I’d have realised”.

[115]PC Thomas, one of the TSG police officers who entered the flat, could not say what position he was in, only that he was towards the back, since he was in “the second carrier” which took the 13 officers to the scene. He said that he would not be as early as the fifth to enter. He stated that he certainly did not deliberately kick the Claimant to the eye or to the ankle and, asked about his being in full public order kit, whether he might have struck the Claimant, said that “in all that equipment, I still would have noticed”.

[116]The last officer called before me who made rapid entry into the flat was PC Wright. He denied deliberately kicking the Claimant in the eye, or to his ankle, and asked whether there was a chance that he’d knocked the Claimant as he passed said that he had no mention of doing so in his notes. The unsubstantiated complaints material which I admitted in evidence included an incident where he had been one of the first officers into a bedroom, where there was a man who made complaint the same day of having been beaten by the officers, was taken to hospital, and, I was told later received a settlement of £20,000 from the Metropolitan Police and an apology – this not withstanding that the injuries themselves were modest. This is a matter of concern.

[117]Before me, he was a witness somewhat shy in answering questions. However, as to the unsubstantiated complaints material, he was not alone but one of a group of officers who had gone into the bedroom. He told me that he was not ever interviewed for the civil claim, and was not asked whether he was happy for an apology to be given. It is notable that interviewed under caution as to this complaint, he was well aware that if pursued further it might involve a criminal charge against him, and yet in interview did not wish a solicitor to be present, telling me, “No, I didn’t feel I required one”. It would have been disproportionate to try this incident of unsubstantiated complaint as a satellite to the claims before me, but on the evidence before me, I do not consider that it would be fair to conclude adversely to PC Wright in respect of that incident. The mild reticence in demeanour to which I have already referred does not justify inference on my part that he as an individual officer deliberately or accidentally kicked the Claimant.

[118]There are two linked, but different aspects of the factual enquiry. Did the Claimant go to the floor voluntarily, or was he taken to the floor by PC Timmons? Was he kicked deliberately, to the eye or to the ankle? Separately, for important reasons as to the claim in negligence, counsel for the Claimant invites me to make a finding as to whether the Claimant was “non compliant”.

[119]The central thrust of the case put by Counsel for the Claimant is that whilst it is proper to take account of issues as to credibility of the Claimant the presence of blood on the floor mat and on the floor so close to the front door unlocks the account of PC Timmons as unacceptable.

[120]I have reflected at length upon this. I do not consider that the point can be explained away, as Counsel for the Defendant sought to in closing submissions, by the possibility that the floor mat was a loose one which had been displaced, since this was not explored in evidence.

[121]I turn then to consider the inherent probabilities and my assessment of the evidence.

[122]First, the whole episode of entry, up to the Claimant being upon the floor and secured by handcuffs to his rear, must have been, in the circumstances, a matter of seconds.

[123]Second, the account of PC Timmons is strongly supported by that of PC Jacqueline Wells, and subject to the blood point, wholly persuasively in my judgment.

[124]Third, the account of the Claimant is clearly unreliable as to a central part of his account: that he was on the floor for at least 12 to 13 minutes, and on the floor for some 5 to 6 minutes until the fifth or sixth officer to enter kicked him in the eye; and in my judgment it is a matter of strong probability that he was served with the warrant and that his evidence on this point, fairly shortly following in time the entry into the flat, is at best unreliable.

[125]Fourth, PC Timmons was entering pursuant to a warrant and briefing which expressly required him to secure persons within the premises; and I have little doubt that in entering this flat, in pursuit of a murderer by stabbing suspected to be present, he would resolve any doubt as to whether the person in his path was compliant or obstructing entrance in favour of the latter, an exercise of what on the evidence is a trained and readily used technique.

[126]Fifth, the evidence of PC Jacqueline Wells which I have found impressive is that the struggle between PC Timmons and the Claimant was “at the front door”. In an episode of such intensity and short duration, with the distraction of an aggressive dog which was biting him, in my judgment on the whole of the evidence it would not be unnatural for the innocent Claimant instinctively to pull away as PC Timmons describes, and it is credible that PC Timmons correctly captures the essence of what occurred between the two men without being precise as to the location within this narrow and dark hallway, as I have noted at paragraph [87] above.

[127]Last, it seems to me that I should exercise caution before constituting myself an expert on how in the circumstances blood came to be at this precise location.

[128]In summary, there is good reason for concern as to the issue of credibility for the Claimant, not merely generally in the light of his evidence in the Central Criminal Court, but in that which I have not considered credible as to the timing on the floor or shortly afterwards the service of the warrant. PC Timmons states that he had secured the Claimant in such a way that he thought he was protecting him from injury by police officers running in, but I do not find it difficult to envisage injury being suffered in this narrow hallway as a number of police officers in bulky padded full public order kit made rapid entry past the Claimant and PC Timmons. Reminding myself of the guidance in Sheppard, I nonetheless do not find it possible to conclude on the balance of probabilities that the Defendant was kicked deliberately to the eye, or to the ankle. As to the legality of PC Timmons’ actions, a police officer may use reasonable force, if necessary, in the exercise of a power and I consider that the Defendant has shown on the balance of probabilities that given the high importance of making rapid entry in order to secure all parts of this flat, the force used by PC Timmons was, in the light of what he believed, reasonable.

[129]There is a secondary legal issue. What if the Court is satisfied on the balance of probabilities that the Claimant did not obstruct the officers in the manner alleged, but finds that the officers mistakenly believe that he was obstructing them? The Defendant asserts that this is sufficient to justify the use of force. The Claimant submits that this is incorrect in law.

[130]In Ashley v Chief Constable Sussex Police

[2008] 1 AC 962

the House of Lords found that an unreasonably held and mistaken belief could not justify the use of force which would otherwise amount to a battery. The House of Lords left open in principle the question of whether a reasonable but mistakenly held belief would suffice, not having heard full argument on the issue. Lords Rodger and Scott expressed concern about this proposition, with Lord Scott observing, “I am not persuaded that a mistaken belief in the existence of non existent facts that if true might have justified the assault complained of should be capable, even if reasonably held, of constituting a complete defence to the tort of assault”.

[131]As to the questions of principle, I proceed with due deference as a judge at first instance. Where a Defendant faces a criminal charge, it is conventional that an honest, albeit unreasonable, belief may constitute a defence to a criminal charge, e.g. on the basis of self defence. Such is understandable when the individual faces the institutional might of proceedings by the State and possible criminal sanction. I respectfully consider it reasonable to contend, in a civil claim, that where an individual faces physical force from the institutional might of the state, in pursuance of warrants lawfully issued in the public interest, (and where any claim will not be met by the individual police officer but by the Chief Constable of that force and the public purse), policy and principle favour that he be compensated for the injury even where the belief of the police officer who applies force to him does so in a reasonable, but mistaken, belief. It may be that such considerations underlie the observations of Lord Scott.

[132]The Claimant contends that in the absence of a binding decision on this issue, the reasoning of Lords Rodger and Scott ought to be followed. Accordingly, “it is no defence as a matter of law for the Defendant to assert that his officers mistakenly believed that the Claimant was obstructing them, if in fact he was not”.

[133]In addition the Claimant contends that even if the Court confines itself to the ratio of the decision in Ashley, the Defendant must establish that any mistaken belief was reasonably held.

[134]In Ashley Lord Scott outlined three solutions to the question of what criteria must be satisfied for a successful plea of self defence, of which solution two was:

“the necessity to take action in response to an attack or imminent attack must be judged on the facts as the Defendant honestly believed them to be, whether or not he was mistaken, but, if he made a mistake of fact, he can rely on the fact only if the mistake was a reasonable one for him to have made”

. The Court of Appeal ruled in favour of this solution. I am therefore bound by that authority, irrespective of the underlying arguments, set out above, which otherwise I would have accepted to the contrary.

[135]I strongly incline to the conclusion, and if necessary I so find on the probabilities as a matter of fact, that the Claimant – a decent man facing an unexpected rapid forcible entry into his flat and who later gave his son’s whereabouts to the police – was not obstructing and did not intend to obstruct the police officers from entering the flat and searching it. As I have observed above, it may be instinctive to pull away when seized by a police officer in these circumstances.

[136]Equally I have had ample opportunity to observe PC Timmons as a witness and to consider his evidence against the background of all the evidence in this case. I consider, and find as a matter of fact on the probabilities, that he did believe that the Claimant was “non compliant” and seeking to obstruct the police officers by pulling away. Here, too, I consider that it would be wrong to set too exacting a standard of police officers required to make rapid entry in pursuit of a suspected violent murderer and that in the brief seconds available to PC Timmons as he was attacked by the violent dog, his assessment, albeit mistaken, was a reasonable one.

[137]In the light of my findings, the Defendant has shown that entry and search was made lawfully, so as not itself to render the application of force to the Claimant unlawful, and in my judgment it was necessary to use force and the force used was reasonable in the light of what PC Timmons reasonably believed. Accordingly, on the basis of the law as currently stated by the Court of Appeal, I consider that assault is not made out in law.

[138]Negligence. The Claimant contends that the Defendant’s officers owed him a duty of care to take reasonable steps to ensure that he was not kicked or hit whilst lying on the ground in the hallway, handcuffed to the rear as police officers entered the flat. The Defendant denies that a duty of care exists where police officers are conducting a forced entry to premises in order to arrest a murderer who is likely to be violent, desperate and intent on escape.

[139]The Defendant also seeks to rely on section 6 Constables Protection Act 1750 which provides, “no action shall be brought against any constable ... for anything done in obedience to any warrant under the hand or seal of any justice of the peace, until demand hath been made or left at the usual place of his abode by the party or parties intending to bring such an action ... and the same hath been refused or neglected for the space of six days after such demand…”.

[140]I confess that I am surprised by the contention that police officers owe no duty of care in such circumstances. Take a simple example: Suppose that firearms officers executing such a warrant decide to shoot off a lock to a door within the premises, or to run past with weapons cocked and ill-secured, with evident risk of injury to the occupant who is detained within: can it sensibly be suggested that there is no duty of care simply because this is what Counsel for the Defendant describes as “hot” pursuit or detention.

[141]There are various formulations of the test for existence of a duty of care, of which one is the three stage test in Caparo Industries PLC v Dickman

[1990] 2 AC 605

. In the context of possible physical harm(i) was the Defendant able reasonably to foresee damage as a result of the relevant actions;

(ii) was the relationship between the Claimant and the Defendant sufficiently proximate;

(iii) was it fair just and reasonable in the circumstances of the case to impose a duty of care on the Defendant?

[142]It is trite that the police owe a duty of care thereby to prevent harm to those in their custody: e.g. only Reeves v Commissioner of Police of the Metropolis

[2000] 1AC 360

at 372 F–G where it was conceded that the police owed a duty of care to take reasonable steps to prevent those in their custody from committing suicide. The rationale for the duty of care being owed to those in police custody is that “by the fact of detention the man is prevented from….. escaping danger” (Vellino v Chief Constable of Greater Manchester Police

[2002] 1 WLR 218

CA).

[143]I consider that the Defendant was able to and in fact did reasonably foresee the possibility of harm to an occupant of the premises, e.g. the briefing note for Operation Docena stated, “all person/s on premises to be secured”; the nature of the entry would be rapid with multiple officers in a confined space; Counsel for the Claimant identifies a Risk Assessment completed prior to the incident which refers to the possibility of injuries requiring first aid treatment being suffered by persons including members of the public. In my respectful judgment it is self evident that there was sufficient proximity between the Claimant and the Defendant and that it is fair, just and reasonable to impose a duty of care in the circumstances.

[144]I doubt that it was in the contemplation of those who framed the Constables Protection Act 1750 that it should be a protection for a constable who acted lawfully in entering premises or in detaining an individual but who acted with such lack of care as to cause reasonably foreseeable injury.

[145]Moreover in Horsfield v Brown

[1932] 1 KB 355

, Macnaghten J stated, “but the constable in executing the warrant was bound to act in accordance with the law. He had no rights to execute the warrant at any time, or any place or in any manner forbidden by law … if the constable acts in obedience to the warrant, then, though the warrant be an unlawful warrant, he is protected by the Statute of 1750, but if the warrant be a lawful warrant, and he executes it in an unlawful way, then no action is maintainable against the magistrate, but an action is maintainable against the constable”. No authority was placed before me in support of the contention that the 1750 Act provides a defence to police officers in circumstances such as these where claim is made in respect of injuries alleged to have been caused by want of care. I conclude that the Defendant did owe a duty of care to take reasonable steps to protect the Claimant from and/or to avoid injury to the Claimant whilst detained on the ground and that such is not barred by the 1750 Act.

[146]One can readily envisage that the scope of the duty of care may be conditioned by the circumstances, including intensity of demand upon the police officers to secure the flat and of course, the inherent possibility of accidental injury which is just that: accidental, not negligent. In assessing the scope of the duty of care, and the reasonableness of the acts of the police officers involved, a balance needs to be struck between the public interest that not too exacting a standard should be required of police officers who are themselves on behalf of the public placing themselves in imminent possible danger to limb or life itself and the public interest in protection from injury of individuals who are not themselves the object of the pursuit and who are themselves innocent of any criminality.

[147]If the occupant of a flat is taken to the floor when heavily equipped police officers are about to make rapid entry in the closest possible proximity to him on the floor and he is secured by handcuffs to the rear and unable to protect himself, it is reasonable in my judgment to require that the officer detaining him takes all reasonable physical steps to protect him from injury, and for other officers to take at least minimal care as they pass in the few steps or strides to do so. The aggressive dog was successfully made to flee before other police officers followed PC Gillan and PC Barry. No other person was present. PC Timmons clearly recognised the need to protect the Claimant from injury, stating that he kneeled upon him in such a way that he believed that people would have had to trample over him to get to the Claimant.

[148]It is the established fact that the Claimant received injury both to the eye and to the ankle. He was not protected from such injuries. To the officers following PC Gillan and PC Barry the Claimant on the floor being restrained by PC Timmons was the very first thing they encountered. There is no suggestion that the hallway was so dark as to make the Claimant and/or PC Timmons difficult to see. The blow to the eye, doubtless from a foot, was of force sufficient to cause the eye injury to which I have related; the blow to the ankle was such as to cause a fracture of the ankle with eversion injury. The Claimant places the eye injury as happening before the ankle injury; there is no suggestion, for instance, that he cried out in pain as he fell to the ground, or immediately after. I therefore consider on the balance of probabilities that his ankle injury was sustained after he was taken to the ground and handcuffed.

[149]It is to some extent circular whether one defines the scope of duty of care and then makes a finding of breach, or whether one makes a finding of breach of the duty to take reasonable care in more general terms having considered the exigencies of the situation of the police officers. The fraught and immediate prospect of injury to the Claimant if not properly protected and/or if police officers did not take minimal care to avoid him as I have described above, persuade me that in respect of both the eye injury and the ankle injury they must have been sustained by want of the minimal standard of care which I have described.

[150]False imprisonment. There are two elements to this. The first is the detention of the Claimant in handcuffs upon the floor, before the handcuffs were released and he was permitted to go to his living room. The second is the alleged detention for “approximately 4 hours and 14 minutes between 13.55 hours and 18.08 hours” (Particulars of Claim paragraph 22a).

[151]In Connor v Chief Constable of Merseyside Police [2007] HRLR 6 there was execution of a search warrant under the Firearms Act 1968. Hallett LJ adopted the observations of principle by Rose LJ in Meaden:

“Here the warrant authorised a search of premises and persons for controlled drugs and documents connected with drugs offences. That authority, to be meaningful, had, as it seems to me, to enable the search to be effective. It could not be effective, particularly in premises on two floors, presently occupied by a number of people, if the occupiers were permitted to move about freely within the premises while the search were going on. Although I accept it is for the police to show, and the burden upon them is a heavy one, that the use of force was necessary and reasonable, it seems to me to be entirely reasonable that officers should seek, by no more force than is necessary, to restrict the movement of those in occupation of premises while those premises are being searched.”

[152]In addition, I do not understand Counsel for the Claimant to suggest that it was unlawful for a police officer to restrain and detain a person in the position of the Claimant, if PC Timmons’ evidence of non compliance was true; and the principles in Ashley appear to me mutatis mutandis, to be applicable. If, as I have found, PC Timmons honestly, and reasonably, although mistakenly, thought that the Claimant was obstructing the entry of police officers into the flat, it was proper and excusable that PC Timmons should detain the Claimant as he did during the short period before he released him from handcuffs and assisted him to his feet. (The Claimant’s recollection is that he was assisted to his feet by a female police officer. The female police officer(s) did not accept this was so; PC Timmons stated that it was he who had assisted the Claimant to his feet; as he was assisted to his feet he was in handcuffs and his weight in raising more easy to manage by a male police officer such as PC Timmons whom I observed, as I did the female police officers. I prefer the recollection of the police officers on this minor point).

[153]The substantial period of detention alleged is that until seen by the FME shortly after 6.00pm.

[154]The Claimant does not say that he was arrested by the police. He does not say that he was told that he would be detained until he had finished answering questions. His case is that by clear implication he was not free to leave in order to seek medical treatment until he had answered questions. A number of strands of evidence are relevant.

[155]The eye injury: was it a “head injury” such as plainly required urgent or early attention? A significant concussive injury, or head injury, may have important consequences and warrant early attention. It was a theme of Counsel for the Claimant in oral evidence and in submissions, that since the Claimant had an eye injury, this was a “head injury” such as plainly called for early or urgent medical attention. I have expressed a provisional view above. On this aspect, among her able questions and submissions, the theme appeared to me to have an air of unreality throughout. No-one, including the Claimant himself, suggests that he was other than clear and lucid in his communications when sitting in his own room or thereafter. A black eye, or very swollen eye, is not in itself some metwand of head injury. The police officers who observed the Claimant, in their oral evidence, were visibly puzzled by the suggestion that this was a head injury of the sort that they would, potentially, or ordinarily, arrange an ambulance to attend.

[156]The observations of other police officers. I bear in mind that other police officers, consciously or unconsciously, may incline to minimise the injury which they observed, when they know that the claim is made of an injury and it is being suggested that the police should have taken the Claimant for medical examination or attention. Nonetheless, the evidence of the various police officers was not merely consistent with one another on this point, but rang true. It is wise at least initially to set aside the evidence of DC Quartermaine, who said that the Claimant was calm and lucid, because of the unsatisfactory nature of his evidence in his witness statement and the late revision of it. But by way of illustration DS Southon said that the eye did not seem to be a big swelling and that “when I spoke to him he seemed remarkably content given his home had been broken into, he spoke lucidly”. Other police officers gave evidence of a piece.

[157]The Claimant essentially kept separate from his wife or others. The evidence of Mrs Sandra Alleyne, which I have not the slightest reason to doubt, is that she did not see her husband the Claimant until at the police station, (having been driven there by a lady police officer in plain clothes) and that she was interviewed by a female police officer as to her movements and those of her son Michael. She asked about her husband and the female police officer told her that he had been hurt. She asked how badly, and the female police officer told her that his eye was puffed up. She wanted to see her husband, but the female police officer kept on saying “in a minute” “in a minute” and that there was no opportunity to talk when she did see her husband. She said, in cross examination, “you are not allowed to speak to a witness in a police station – she [the female police officer] was with me, she showed me [my husband], and we left. “Q. You are not saying that an officer told you that you were not allowed to talk to him? A. We never talked about that. I assumed we couldn’t talk”.

[158]DC Susan Aldridge, the female detective police officer, in oral examination told me that “when you are taking a witness statement, as I’m sure you are aware, you want to keep them [the witnesses] separate … To avoid people checking what they may say”. DS Southon likewise spoke of the importance of trying to get statements from people as soon as the police saw them, and that “it’s important we do before they can confer”. “Q. It is a tactic to keep people apart, who may have valuable information? A. Yes. [I infer he meant, when the police go in on searches to different addresses] we go in at the same time because there may be phone calls going on”. Critical questions in cross examination were put to DS Southon that he was in effect suggesting a power to detain and keep separate witnesses. His answer was that there was no reason why Mrs Alleyne should not see her husband but:

“I’d put the caveat, you can see him, but he is halfway through making his statement, so don’t discuss that with him. I might say you can see him when he’s finished making his statement. They would have been in a private consultation room. I agree there is no power to detain a witness. It’s not a stonewall refusal – you’d say can you wait 15 minutes, if they say no, I want to see him now, you’d have to let them see him. If witnesses are allowed to be together, you obviously run the risk that they’ve colluded or their evidence is not just.”

[159]Counsel was pursuing the case, and an inference that the explanation for delay in seeing her husband, and being kept in separate rooms, was that in truth he was being detained for questioning.

[160]It is important that police officers should not arrogate to themselves a power which they do not have, to forbid someone who is not under arrest from leaving, or speaking to or being spoken to by a partner or family. On the other hand, this was a murder investigation and in my judgment it is proper for police officers to seek to avoid the possibility of contamination, or collusion, between witnesses whose evidence might prove to be all important, so long as such is done lawfully. If the exercise is one of persuasion of a witness to defer contact, or encouragement of it, such is not to be criticised. The qualification I make, “so long as such is done lawfully”, is an important one. But the citation of Mrs Alleyne’s evidence which I have given above is consistent with what was being done being done by such persuasion or encouragement. She was informed of her husband’s injury, and she was allowed to see him. I am not persuaded I should in the end draw adverse inference from the fact that Mrs Alleyne was being interviewed in a separate room from her husband, or contact deferred by a repeated statement, “in a minute”.

[161]Implausible that the Claimant should be taken to a police station to be examined by the FME? I have dealt with this above, and having considered all the evidence I now adopt the conclusion which I make provisionally above. I note expressly here that the stated apprehension of DC Quartermaine as to possible delay in being seen at the hospital by a doctor was proved correct: On being seen by the triage nurse, the Claimant was required to wait for some three and a half hours before being seen by the doctor, this preliminary assessment being made by a qualified nurse.

[162]Apparently under confinement as he left the flat? I have dealt with this above, and having considered all the evidence I now adopt the conclusion which I make provisionally above as to the evidence of Mr Watts, neighbour of the Claimant, and my strong conclusion on the balance of probabilities that PC Campbell did not at any stage say to him that the Claimant must have suffered injury “when they arrested him”.

[163]Implausible that the Claimant should have elected to stay at the flat? The evidence of DC Quartermaine remained that the Claimant understandably wanted to wait for his family at the flat. I have explained above the unsatisfactory nature of the passage of evidence in the witness statement of DC Quartermaine which includes this assertion. Nonetheless this particular assertion is not without some support.

[164]The Claimant and his wife had been married for some 36 years. In oral evidence, Mrs Alleyne agreed that he was the sort of man who would not want her to come home to this, and that as to the prospect of finding the door broken down “he would worry about me yeah” and the following:

“Q. He would want to be there to comfort you? A. Yes he would be. Q. Yvette then lived at number 46, 2 floors above? A. Yes. Q. She was not at work that day? A. No. … She was pregnant. Q. He would not want her to come to the scene with the door broken down? A. He would worry for her.”

She was also asked whether he was, to use my word, not the wording of the question or answer, stoic. Mrs Alleyne had mentioned that he did not when she saw him at the police station say that his foot was hurting. Shortly afterwards he was asked this:

“Q. Is he the sort of man to make a fuss? A. He doesn’t make a fuss. Q. If he’s not well, he does not make a fuss? A. No. Q. He grins and bears it? A. Yes, big things like that [his injuries] he would – being sick he doesn’t. Q. He’s not going to want to worry you about these things that day of all days, with your son’s involvement, as to his eye being hurt? A. No.”

[165]The evidence of Michelle Alleyne, who saw her father that evening, was that he did not tell her that the police officer had deliberately kicked him in the face; she was a young woman who when she saw her father she shouted at the police “look at him, and you still had him here all day” being told that he was going to the hospital. “Q. He did not say “someone kicked me in the face”? A. No. Q. If that had been said, you would have wanted to see the Superintendent? A. Yes [said with emphasis].”

[166]Whilst I do not attach undue weight to the answer, his daughter Yvette did say, (not being able to recall his reply when he was being accompanied away from the flat), “Yeah, but then I’m his daughter and I was pregnant – he didn’t want to get me in a state”.

[167]It is the undeniable fact that having had an ankle injury an examination by doctors, he was told not to weight bear on it but in the following days did so. In the light of this evidence, I do not find a degree of stoicism as to his injuries, up to the time of examination by the FME, implausible.

[168]Absence of video footage of the custody suit at the police station. There is CCTV in the custody area. Generally, DC Quartermaine told me, such is kept for a long time. The footage shows the Claimant going in and out of the custody area, which is the area where the FME was to be found, if available. DC Quartermaine says that he went in and out on several occasions, making enquiry whether the FME could see the Claimant, and that he may have made phone calls. Yet it appears that not all CCTV footage is available. This court is alert to the possibility of drawing adverse inference drawn if CCTV footage is not available, which if available could confirm or deny the movements which DC Quartermaine indicates he made. If I were doubtful of the plausibility of the Claimant being taken to the police station to be seen by the FME, I would be more concerned as to the lack of this footage. As I have set out above, I do not find it implausible that the Claimant should be so taken, and it is his own statement by solicitors in the letter before action that he was so taken. In these circumstances, I do not attach particular significance to the absence of CCTV footage.

[169]Why would the Claimant not go for medical attention? This is the question posed by Counsel for the Claimant, inviting the answer that it was because he was not given the option of doing so. I allow some persuasion to this point, but it has to be balanced against my assessment of the Claimant is that he was somewhat stoic as an individual.

[170]Was it improbable that DC Susan Aldridge and DS Southon would provide a taxi service for DC Quartermaine and the Claimant as opposed to bringing him in for questioning? It was suggested that it was, for them to remove themselves from the police station, during a fraught and hectic murder enquiry, to provide a taxi service to DC Quartermaine and the Claimant. Each accepted that the investigation was very busy. Each said that there was nothing unusual in providing transport when the number of available cars quite often was insufficient for each of the officers to drive themselves and/or that such lifts were not uncommon. If elsewhere I found that individual issues substantially undermined the Defendant’s case, I would have been willing to consider the answers of these two police officers, and DC Quartermaine, with yet greater care. In the absence of such, I do not find their answers particularly surprising, particularly when the Claimant was a witness who had been willing to give important information as to the movements of his son, suspected of murder, and as to his son’s current whereabouts. Since I consider it plausible that medical examination might be more quickly achieved by attendance at the police station by an FME, support of DC Quartermaine and the Claimant by providing such transport was understandable.

[171]Individually, I do not regard the issues with which I have dealt in the immediately preceding paragraphs as substantially inclining judgment in favour of the Claimant’s case or undermining the Defendant’s case. It is wise to consider these issues not merely individually, but cumulatively, and I have done so. Taken together and carrying out that different exercise, I do not regard these issues cumulatively as substantially altering the balance of the evidence in favour of the Claimant’s case. I remind myself of the burden and standard of proof. The burden is on the Claimant to establish that he was detained thereafter it is on the Defendant to establish that the detention was on a lawful basis. Insofar as the Defendant says that the Claimant was not detained during the subsequent period, I note that false imprisonment is the restraint of the person such that they cannot freely leave, whether that be in their house or elsewhere; it does not require any touching of the person: see for example Bird v Jones [1845] 7 QB 742.

[172]I am therefore left with the acute conflict between the evidence of the Claimant, whose credibility is in issue, and the evidence of DC Quartermaine, whose credibility is in issue. The original account of DC Quartermaine is unsatisfactory, as I have recorded above. I have reflected at length upon this.

[173]At a crude level, this is a raw conflict between the evidence of a police officer whose witness statement prepared for the present action is thoroughly unsatisfactory, and is asserted to be a fabrication, although compiled three and a half years after the event, and the evidence of the Claimant, who gave evidence on oath at the Central Criminal Court which was not only false but wrongly accused the same police officer of fabricating and inserting false passages of evidence above his signature into the Claimant’s witness statement of 30th June 2008. At a less crude level, it is a conflict between that police officer and a Claimant whose recollection of critical elements as to his claim I have not found credible (timing of being on the floor, and whether the warrant was served) and against whose evidence I have on balance preferred the account of PC Timmons.

[174]In these circumstances, I do not accept that on the balance of probabilities the Claimant has shown that he was detained by implied threat that he was not free to leave in search of medical treatment until he had answered questions; and on the balance of probabilities I prefer the account of DC Quartermaine that the Claimant appeared willing to remain in his flat answering questions in detail without seeking medical treatment. Likewise, insofar as the Claimant now seeks to assert that his being taken to the police station was not for the purpose of examination by the FME, or was not for that purpose compared to the predominant purpose of detaining him for questioning, I prefer the account of DC Quartermaine.

[175]I am not satisfied that the Claimant has established on the balance of probabilities that he was detained and his claim for false imprisonment therefore fails.

[176]Contributory negligence. Suffice it to say that in respect of the Claimant, who was faced with the sudden and unexpected rapid intrusion of police officers into his flat, I can find nothing in his actions which would justify any suggestion of contributory negligence.

Summary of conclusions

[177]At the outset of this judgment I recorded that Counsel for both parties told me that once the primary findings of fact were made, as to liability, it was highly probable that Counsel would be able to agree quantum. It follows from my findings above, that the Claimant is not entitled to damages for unlawful entry; he is not entitled to damages for unlawful assault; he is entitled to damages for the negligent infliction of the injuries which he suffered; he is not entitled to damages for false imprisonment either at the time of the initial entry or thereafter from 13.55 hours to the time that he was examined by the FME at 18.09 hours or thereabouts on 30th June 2008; and that aggravated and exemplary damages are not appropriate or recoverable.

[178]I propose to hand down judgment in written form, reserving actual entry of judgment itself both for possible agreement of damages, and in case there are representations as to the form or amount of judgment or as to the costs consequences. In order to minimise costs I will hand down judgment in the absence of the parties with permission to either party to restore the matter as may be necessary in order to finalise the order for judgment and costs and/or to give the opportunity for representations if any as to costs.