Mohidin & Anor v Commissioner of the Police of the Metropolis & Ors [2015] EWHC 2740 (QB)

Case No HQ12X03666[2015] EWHC 2740 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02/10/2015
Before
MR JUSTICE GILBART
Between
OMAR BARRAQ MOHIDINClaimantBASIL KHANClaimantAHMED HEGAZYClaimantCOMMISSIONER OF THE POLICE OF THE METROPOLISClaimantMARK JONESClaimantSTEVEN WHITEClaimantWILLIAM WILSONClaimantNEIL BROWNClaimantOMAR BARRAQ MOHIDIN BASIL KHAN and AHMED HEGAZY First Claimant Second Claimant Third Claimant- and -COMMISSIONER OF THE POLICE OF THE METROPOLIS and MARK JONES STEVEN WHITE WILLIAM WILSON NEIL BROWN Defendant Third Party Fourth Party Fifth Party Sixth Party
Philippa Kaufmann QC and Raj Desai (instructed by Bhatt Murphy, Solicitors) for First and Second ClaimantsAlison Gerry (instructed by Imran Khan and Partners inc Christian Khan, Solicitors) for Third ClaimantJohn Beggs QC and Cecily White (instructed by Directorate of Legal Services, New Scotland Yard) for DefendantJohn Hardy QC and Stephen Morley (instructed by Slater and Gordon, Solicitors) for Third to Sixth PartiesHearing Hearing dates: 9th-12 th, 15 th-18 th, 23 rd-24 th, 26 th and 30 th June 2015

Judgment

[1]I shall deal with this matter as follows A Introduction [2] B Preliminary Matters(a) Position of Mr Mark Jones [8](b) Other proceedings relating to this incident, and their relevance if any [11](c) Similar Fact Evidence- ruling of Sir David Eady [26](d) The evidence before me and the position of PC Onwugbonu [29](e) Ruling on the admissibility of evidence about the Claimants’ activities [39] C The Claimants and the TSG officers on the van - background, character etc (a) The Claimants [42] (b) The officers on the TSG carrier including PC Onwugbonu[53] D The TSG carrier [74] E Events as the carrier travels south and then returns north [75] F Edgware Road events – (a) evidence of the Claimants [96] (b) evidence of PC Amechi Onwugbonu [127] (c) evidence given and called by the Third to Sixth Parties [136] K Events at the Police Station[207] L Hearsay Evidence called about the Claimants [239] M Similar Fact Evidence [245] N My assessment of the witnesses and their evidence[263] O Findings of fact on liability, and conclusions on liability [301] P Evidence, submissions and conclusions on injuries and on issues relevant to damages [318] Q Contribution and indemnity [393] R Order [400]

A Introduction

[2]On 1st June 2007 at some time after 5.30 pm, a marked TSG Territorial Support Group carrier van containing 6 Metropolitan Police officers stopped at the junction of Edgware Road and Sussex Gardens in Central London, so that officers within could speak to a group of youths containing the three Claimants. The van had been driving south down Edgware Road, and the group of youths walking north on the northbound pavement, but, if their evidence is true, the officers in the van considered that one or more of the group had been making gestures or mouthing obscenities at the van, and that they should be spoken to about their conduct. The van was then driven south to Marble Arch, where it passed around the junction and off north to look for the youths. After looking along the Edgware Road and in the side streets (and, according to some evidence, after officers had made enquiries in a restaurant or a shop) the van and its officers came upon the group of youths at the junction of Edgware Road and Sussex Gardens. In an incident lasting only a few minutes Omar Mohidin had entered the van, and then been allowed to leave it, Ahmed Hegazy had been arrested and handcuffed, and then shortly afterwards Basil Khan had also been arrested and handcuffed. By 5.50 pm, the Police Van had arrived at Paddington Green Police Station with Ahmed Hegazy and Basil Khan.[3]The events which took but a few minutes on Edgware Road that evening over 8 years ago have resulted in a long history of allegations and counter allegations. Insofar as I have to do so, I shall say something of that presently.[4]In short terms, the Claimants aver as follows; i). Omar Mohidin alleges that he was taken into the van and there assaulted by the Third Party PC Mark Jones, who also swore at him and abused him verbally; ii). Ahmed Hegazy alleges that he was unlawfully searched while on the pavement, and then wrongfully arrested by the Sixth Party PC Neil Brown, handcuffed by and put on the floor of the van by PC Brown and the Fourth and Fifth Parties PC Steven White and Sergeant William Wilson with unreasonable force, where he was further assaulted. He says that at the Police Station he was strip searched unnecessarily. Ahmed Hegazy also asserts that PC Brown swore at him, and that he was racially abused; iii). Basil Khan alleges that he was wrongfully arrested, whereupon he was handcuffed and then, when placed in the van, was assaulted by both PC Jones and Sergeant Wilson. He was sworn at and abused. He was then forced to the floor, and then made to kneel within the van in handcuffs, both during the journey to the Police Station and then for some 20 minutes while he waited to be taken from the carrier into the custody suite. He was strip searched, which it is alleged was in breach of the relevant PACE code as he was then only 16 years old. iv). Each claims damages, including exemplary damages, for false imprisonment and assault. In addition Ahmed Hegazy claims damages for direct discrimination under section 1 of the Race Relations Act 1976 and for breaches of Articles 3, 8 and 14 of the European Convention on Human Rights (“ ECHR”)[5]By contrast, the Third to Sixth Parties contend that; i). One or more of a group of Arab youths had been seen making gestures and mouthing obscenities across the road at the TSG carrier, and the decision had been made to speak to them. Once the carrier caught up with them, PC Jones formed the suspicion that Omar Mohidin was in possession of controlled drugs, and decided to search him. He went into the van voluntarily to be searched. Nothing untoward occurred; ii). In the case of Ahmed Hegazy, PC Brown suspected that he was in possession of controlled drugs. He started the procedure for a search under the Misuse of Drugs Act 1971. Ahmed Hegazy became violent, made serious threats of violence, was arrested and handcuffed, and was then placed in the van on the floor by PC Brown, PC White and Sergeant Wilson. He was never assaulted; iii). As the van moved off with Ahmed Hegazy inside it, Basil Khan approached it and made threats. He was arrested by PC Jones and put in the van. There is a conflict within the Third to Sixth Parties’ case as to exactly what happened in the van, but it is common ground that he was not assaulted. It is accepted that he was at some point put to the floor while handcuffed, and accepted that he was required to kneel in handcuffs on the way back to the Police Station and after arrival. That was justified because of his violent conduct, including his striking PC Jones.[6]One officer on the van that evening, PC Amechi Onwugbonu, made a report that evening to his superior officer that his colleagues had, to put it neutrally for the moment, behaved inappropriately to Omar Mohidin, Ahmed Hegazy and Basil Khan, but especially Omar Mohidin and Basil Khan. He is still a serving officer, as is PC Steven White, as are two other officers on the van who gave evidence before me when called by the Third to Sixth Parties, PC Giles Kitchener and PC Simon Prout. For that reason, the Defendant felt unable to assert any positive case about what happened in the van. I shall say more about the position of PC Onwugbonu presently. Mr Beggs QC for the Defendant Commissioner accepted that if a claimant established his case, the Commissioner was liable to compensate him, but he has joined the Third to Sixth parties so that if a case is established, an indemnity can be obtained from the officer responsible for such false imprisonment, assault or other tortious conduct as is established.[7]My task is to determine the claims for damages, on the basis of the evidence before me.

B Preliminary Matters

(a) Position of Mr Mark Jones

[8]On the 5th day of evidence (Wednesday 17th June 2015) Mr Jones commenced his evidence in chief during the morning. I was told after the midday adjournment that he had collapsed and been taken to A and E at St Thomas’ Hospital. He was discharged to the care of his General Practitioner at his home, which is in the deep south west. I asked Mr Hardy to convey my best wishes to Mr Jones for a speedy recovery. I intimated that I was prepared to consider any reasonable way of accommodating Mr Jones, including taking his evidence by video link, if it could be arranged. The Court continued with other evidence on Thursday 18th June and Tuesday 23rd June (It did not sit on 19th June or 22nd June for reasons unconnected to the case or this issue). I then received a short report from his GP, which attached a discharge report from St Thomas’ hospital referring to an episode of collapse while giving evidence, and referring to a history of blackouts. The GP expressed the view that he was unfit to give evidence. Mr Hardy who, if I may say so, showed exemplary care and concern for his client, said that while he thought that Mr Jones was unlikely to want to return to the trial, asked for, and was given time for his instructing solicitors to talk to the GP. I was concerned that the report did not make it clear whether Mr Jones was prevented from completing his evidence if expected to do so within the next day or so, or whether his difficulty would last rather longer. After discussion had been had with the GP, it was said that a report was expected. I had also indicated to Mr Hardy that there was an amount of evidence which, if I were to accept it, would support the allegations against him, and that it was in his interest, if he could, to give evidence to deal with the allegations made against him.[9]On 24th June 2015, I was informed that unhappily, Mr Jones had again collapsed. I expressed the view that while an adjournment for a reasonable period to allow him to complete his evidence might inconvenience counsel for other parties, I gave more weight to his having access to justice, and to his thus being able to complete his evidence if he could, and reiterated that I was prepared to consider any reasonable means of enabling him to do so.[10]On 25th June 2015 Mr Jones consulted a Consultant Psychiatrist by telephone, arranged with admirable expedition by his solicitors. On 26th June 2015, after having time to take instructions by telephone, Mr Hardy QC informed the court that he was closing his case. It follows that Mr Jones did not return to court to complete his evidence in chief, nor to be available for cross examination. (b) Other proceedings relating to this incident, and their relevance if any[11]This incident has resulted in a series of investigations and various proceedings. By the early hours of the morning, it was known that PC Onwugbonu had raised concerns about what had happened. An investigation by the Directorate of Professional Standards of the Metropolitan Police had started by about midnight on 1st June 2007. Ahmed Hegazy and Basil Khan thereafter both alleged that they had been wrongfully arrested and assaulted.[12]In due course all the other officers on the van were interviewed under caution. They were all prosecuted and tried at Kingston Crown Court in October 2009 for misfeasance in public office. PC Jones was also charged with racially aggravated assaults on Omar Mohidin and Basil Khan, and PC Brown was charged with racially aggravated threatening behaviour towards Ahmed Hegazy. Each of the three claimants and PC Onwugbonu gave evidence for the Crown. The case against PC Prout was dropped during the trial. The trial judge directed that PC Brown was acquitted of racially aggravated threatening behaviour. Sergeant Wilson and PCs Jones, White, Brown and Kitchener were all acquitted by the jury on all the remaining counts with which they were charged. The trial concluded on 3rd November 2009. During the course of that trial, PC Onwugbonu was in the witness box for no fewer than 5 days. He was then recalled for a further day. The transcript of his evidence in chief, cross examination by 5 defence counsel and re-examination runs to no fewer than 543 pages.[13]The Third to Sixth parties both in their pleadings and in their case (submitted in a skeleton) and to a degree the Defendant in the Defence, wanted me to have regard to the fact that there had been acquittals as evidence which tended to support the cases against the Claimants. I was also presented (by the Claimants) with transcripts of the evidence of each claimant, and of PC Onwugbonu,and (by the Third to Sixth parties) some of the evidence of and called by the Third to Sixth Parties.[14]There has been a long series of investigations by IPCC and by the DPS Directorate of Professional Standards . I have taken the summary provided to me in the skeleton for Mr Beggs QC for the Defendant Commissioner. I shall deal with it as neutrally as I can: i). the IPCC managed an investigation by DPS, which concluded in June 2008 that all six officers in the van (save PC Onwugbonu) had a case to answer on both the civil and criminal standard; ii). on 22nd March 2010 the IPCC decided not to institute misconduct proceedings; iii). in January 2010, the solicitors for Omar Mohidin and Basil Khan made a complaint that a witness called Inspector Davis had given evidence for PC Jones at the trial, to the effect that he had not seen him misconduct himself on other occasions, when he had been present during the arrest of Babar Ahmad (of which more below). In due course the IPCC rejected the complaint; iv). meanwhile in December 2009, the families of the officers who had been prosecuted made complaints to the IPCC about the conduct of the original secondary investigation, which it was said was biased, about the evidence of PC Onwugbonu, which was said to be false and dishonest, and the late disclosure at trial of CCTV evidence from the Police Station; v). on 12th August 2010, four officers, including PC Jones, were charged with assaulting a man called Babar Ahmad during an arrest. They were acquitted at Southwark Crown Court on 3rd June 2011; vi). in July 2010 all six officers from the TSG van in this incident (apart from PC Onwugbonu) issued proceedings in the Employment Tribunal against the Defendant Commissioner, alleging racial discrimination, harassment and victimisation; vii). in July 2011 the IPCC concluded that the central complaint of the families about the investigation should be upheld. PC Onwugbonu’s evidence should have been investigated for its accuracy and honesty, and the investigating officers lacked necessary investigative experience and should be subject to management action. However while there were mistakes in PC Onwugbonu’s written and oral evidence, which justified management action, he had not been guilty of any criminal offences or of gross misconduct; viii). on 6th September 2011 the IPCC concluded that there was a case of gross misconduct against two officers, and misconduct against one, for failures to review and manage over 2000 hours of CCTV film, or disclose it on time. Written warnings were given in March 2013; ix). after the Part 20 proceedings had been issued in this action, the Additional Parties brought additional claims in the Employment Tribunal alleging that the issue of the proceedings constituted further acts of race discrimination and victimisation. All Employment Tribunal proceedings have been stayed until this action has been heard; x). on May 8th 2013, the IPCC upheld appeals by the families against the findings of the DPS into their complaints. The IPCC directed DPS to hold a further investigation in the light of further enquiries; xi). that reinvestigation was published on 5th September 2014. It recommended that no further action be taken, and upheld the original DPS conclusions that management action was adequate to deal with the complaints against the officers involved, including PC Onwugbonu; xii). in January 2015 an appeal was submitted against the conclusions of the DPS reinvestigation.[15]The documents relating to those matters covered no fewer than 750 pages. I also had voluminous documentary evidence of police intelligence, stop and search records and sets of PNC print outs. That covered no fewer than 744 pages in the original bundles, and another 444 pages in a supplementary bundle put in by the Third to Sixth Parties.[16]The witness statements of the Claimants, evidence served under hearsay notices for the Claimants, and other material (principally consisting of PC Onwugbonu’s evidence at the criminal trial, even though that was not served as hearsay evidence) amounted to 1508 pages, of which 796 related to PC Onwugbonu. The witness evidence for the Defendant took up 810 pages. That for the Third to Sixth Parties about events on the Edgware Road and at the Police Station consumed another 1094 pages.[17]The Similar Fact evidence, which as put before me in the court bundles, still included cases which had already been ruled inadmissible by Sir David Eady, and the evidence in rebuttal, took up over 3800 pages. The submissions made to me in response to the draft judgment show that there is an issue about which party was responsible for its inclusion. I return to this matter below.[18]Thus it was that I was presented with 13 lever arch files of documents and statements, in a case concerning what happened on the Edgware Road in a period of less than 30 minutes. I started the trial by inviting all parties to agree (as they all did) that: i). the tribunal determining the claims for damages was myself, and that I would determine it on the basis of admissible evidence placed before me. I had received witness statements, and also hearsay notices of other evidence; ii). evidence of what conclusions others had reached about the issues which I had to determine was inadmissible and irrelevant; iii). the only potential relevance of what happened at the trial at Kingston or in other proceedings or investigations was if some reference were made to what a witness in this trial said for the purpose of showing inconsistency, a lack of reliability, or under s 5(2)Civil Evidence Act 1995, or to establish an admission against interest, or to rebut allegations of recent fabrication or similar. Even then, its admissibility was not automatic.[19]It is quite apparent to me, having heard the evidence and seen the witnesses, that both sides in this dispute harbour a great deal of bitterness about what happened that evening, or about the consequences of what happened. But I am not and was not conducting a public inquiry, nor do I have some wide ranging remit to consider whether the various IPCC conclusions were correct. My task was and remains one which is easily defined, albeit perhaps less easy to carry out: that is to determine, on the admissible evidence put before me, whether the claims of any of the claimants in these proceedings against the Defendant Commissioner have been proved, and if so whether he/they is/are entitled to damages, and if so to what degree, and then whether the Commissioner is entitled to an indemnity or contribution from all or any of the Third to Sixth parties.[20]I must express, as I did to Counsel, some surprise that anyone would think that any of that material relating to the IPCC investigations and conclusions, or the DPS responses thereto, was relevant unless something within it was relevant in some way- such as supporting an allegation of a witness making a previous inconsistent statement. As it turned out, no-one ever suggested that any of it was relevant, and I was not referred to a single page or line of it during evidence or submissions. I must also express my concern that the Third to Sixth Parties should include long sections of evidence in their witness statements describing the effects upon them of the various proceedings and investigations that have ensued, and their sense of grievance at what has or has not been decided. In the absence of a counterclaim by any of them in these proceedings, it was patently irrelevant unless it went to explain some difficulty or inconsistency in recollection. If it was intended to affect my judgment in some way, it has not done so. I shall not hold that against the Third to Sixth Parties when assessing their evidence, as I do not know whether the decision to include it was theirs, or whether it was included due to the advice received from others (be that the Police Federation or their solicitors), or whether shortcuts were taken, and witness statements prepared for other proceedings (such as in the Employment Tribunal) have been adapted for use in these proceedings. But the Court will have regard to it if any costs issue arises, as it will the unnecessary inclusion in the case bundles of hundreds of pages of material from the various proceedings and investigations which were irrelevant and inadmissible.[21]I make no complaint about the discovery of the various documents between the parties. But the manner in which any and every document, relevant or not to the issues before me, was copied into 13 case bundles showed a regrettable unwillingness by the parties collectively to engage in a cost effective preparation for trial. The submissions made to me in response to the draft judgment show that there is an issue about which party was responsible for the inclusion of this material. I return to this matter below.[22]At the outset of the trial, I also pointed out that in the Third to Sixth Parties’ evidence there were several instances of passages about the motives of PC Onwugbonu, Inspector Belej of the DPS and others, and that allegations of conspiracy, concoction or collusion were made. I stated that while any witness was entitled to have his or her views, that did not of itself make such evidence admissible, and I would (and did) permit such evidence to be given or admitted only if it had some evidential foundation and went to a relevant issue.[23]In the event, there was no evidence which was admissible which supported any of the allegations of collusion or conspiracy made by the Third to Sixth Parties, as Mr Hardy QC very properly conceded, for he made it plain in his closing submissions that none was being suggested by him in this trial. There was however some evidence which related to PC Onwugbonu’s approach to carrying out the Unit’s duties which was relevant, and some about a past complaint of his which was unjustified (both of which I shall consider below).[24]I shall in due course have some other comments on some of the material about him which was included within the evidence for the Third to Sixth Parties.[25]All that having been said, once the trial was under way, all counsel proceeded to deal properly, fairly and efficiently with the actual issues. In a case listed for at least 6 weeks, the evidence actually finished on day 9, and I heard final submissions which started at the end of week 3. I am grateful to all counsel for the way in which the case was conducted at the trial. I am only sorry that ill health on my part has prevented the earlier production of this judgement.

(d) Similar Fact Evidence- ruling of Sir David Eady

[26]On 10th February 2014 Sir David Eady gave a ruling on the admissibility of similar fact evidence ([2014] EWHC 235 (QB)). He was asked by all three Claimants to admit evidence relating to 9 incidents, and a further 2 on behalf of Ahmed Hegazy. As he made plain, he was not ruling that the trial judge should admit any of the evidence, but whether the material passed the stage one and two tests in O’Brien v Chief Constable of S Wales[2005] 2 AC 534.[27]He ruled that four incidents passed the tests, of which three were relied on at trial: i). an incident relating to the arrest of Babar Ahmad by PC Jones and others on 2nd December 2003; ii). an incident relating to the arrest of a Mr Mohammed El-Kholti by PC Jones and others in March 2007; iii). an incident relied on by Ahmed Hegazy and known as OG1/07/2999, involving the stopping by PC Brown and another officer of a black man called Barnes in Kennington Road on 26th June 2007.[28]No further arguments were taken before me about the admissibility of any of that evidence. As will become apparent, I regard the evidence adduced by the claimants, even if true, as being of very little weight in determining what happened in the incident with which this case is concerned.

(e) The evidence before me and the position of PC Onwugbonu

[29]All parties agreed to my suggestion that I should hear examination in chief orally insofar as it related to events on the Edgware Road or in the van, or in the case of the Claimants and Third to Sixth parties, and PCs Kitchener and Prout, what happened at the Police Station. In the case of the evidence called by the Defendant from the then custody sergeant Inspector Watkinson and his supervising officer Inspector Cruickshank, the witness statements were adopted as the evidence in chief. Both were cross examined.[30]Ahmed Hegazy’s case was the first to be heard. He gave evidence first. Ms Gerry also put before me as hearsay evidence: i). medical evidence of the examination of Ahmed Hegazy by Dr Frazer; ii). the notebook and parts of the witness statement of PC Onwugbonu. I shall say more of this in the ensuing paragraphs; iii). evidence of Mohammed Ahmed; iv). evidence from Inspector Terry Banks, who was on duty at the police station, and from other officers there (Abdul-Salam and Reid) v). similar fact evidence, as already described.[31]In her case for the First and Second Claimants, Ms Kaufmann called both of them to give evidence. She also relied on: i). the evidence of a solicitor’s clerk, Millie Guest, who was present at the Police Station. She was to have been called, but all parties agreed to her evidence being admitted under the hearsay notice provisions; ii). the notebook and parts of the witness statement of PC Onwugbonu. I shall say more of this in the ensuing paragraphs; iii). evidence from a DC Bates about a statement written by PC Onwugbonu; iv). evidence from Inspector Terry Banks, who was on duty at the police station, and from other officers there (Abdul-Salam and Reid); v). evidence from PCs Everett and Mackay about events at the Police station. PC Everett also gave evidence orally when called by the Third to Sixth parties.[32]In the case for the Third to Sixth parties, Mr Hardy called each of them. I have already set out what happened during Mr Jones’ evidence. Mr Hardy also called or adduced i). oral evidence from PC Kitchener and PC Prout (both of whom were also on the van); ii). oral evidence from PC Everett (about events at the Police Station); iii). oral evidence from PCs Bond-Vaughan, Mullen and James –Bowen on the similar fact incidents, as described above; iv). evidence given by hearsay notice from an Inspector Allmey denying a remark he was said to have made; v). PC Ryan Davis, a Sergeant Burger, a PC Thomas, PC Arno and another PC Brown, about dealings some time after the incident with Omar Mohidin and with Basil Khan, and remarks they were said to have made about the case.[33]Mr Beggs QC for the Commissioner called Sergeant (now Inspector) Watkinson, who was the custody sergeant, and Inspector Cruickshank, who was also on duty at the Police station. He had also filed, but did not call, evidence from other witnesses involved with the investigation of the officers in the van. Given the rulings I had made, such evidence was not relevant.[34]On the first day of the trial I had an accompanied inspection of the TSG carrier in question. That was very useful, and as will become apparent, inspection of it proved very helpful in understanding some aspects of the evidence.[35]It was agreed that the medical evidence relating to quantum could be dealt with in written form. I had read the reports, and thejoint reports of the respective psychiatrists, which set out areas of agreement and disagreement.[36]As to the evidence of PC Onwugbonu none of the parties called him, albeit for different reasons: i). Ms Kaufmann QC and Ms Gerry did not do so because the First and Second Claimants’ solicitor had been told in an email of 30th January 2015 by his solicitor, Mr Richard Conley, a partner in Messrs Taylor Haldane Barlex of Chelmsford that ii). “I have discussed our conversation with my partner Russell Haldane who is litigating all matters connected with this case on behalf of PC Onwugbonu. I regret to say that it will not be possible for him to offer you the assistance that you seek, because, following an appeal against the initial finding of the IPCC, a decision is pending which could potentially result in proceedings against him. iii). Until the conclusion of the IPCC investigation we will not be in a position to comment.” iv). It is to be noted that the email in question never refers to his instructions or wishes. Further, it seems to confuse two principles. One is whether a witness can decline to give evidence (which he cannot in the event of a witness summons being in place under CPR Practice Direction 34A), and the other is whether, once called, he may decline to answer questions on the grounds of avoiding self-incrimination; v). Mr Beggs QC did not do so because he said that the Commissioner had to remain neutral when serving officers gave conflicting accounts; vi). Mr Hardy QC did not want to call him as part of his case, pointing out that his clients did not accept the veracity of his evidence. However they had also decided not to require him to attend for cross examination pursuant toCPR 32.7 and section 3 of the Civil Evidence Act 1995. He chose to rely on what he said were concessions made at the trial in the Crown Court, which, submitted Mr Hardy, affected his reliability. I shall deal with those submissions below.[37]Given his absence, it is also necessary to consider the criteria in section 4 of the Civil Evidence Act 1995, as I shall in due course, but I shall touch on criterion (2)(a) here. Mr Hardy referred to his absence as “Hamlet without the Prince.” That is a touch unfair. While I accept Mr Beggs’ position for the Defendant Commissioner, I am not impressed by the Claimants’ or the Additional Parties’ reasons. The Claimants could have required him to give evidence and issued a summons accordingly if he declined to attend voluntarily. Their solicitors should have pointed out to PC Onwugbonu’s solicitors firstly that the decision on whether to give evidence was his and not theirs, secondly that those solicitors had confused the question of his attendance with the right not to answer certain questions, and thirdly they could have obtained a witness summons. Nor do I accept that the Third to Sixth Parties’ had good reasons for not requiring him to attend to be cross examined, beyond securing the tactical advantage of not having him give live evidence, and thus potentially affecting the weight to be given to it. They also secured what I suspect they perceived as the tactical advantage of being able to mount very substantial attacks on his credibility without having to put them to him in the witness box.[38]I have some sympathy for Mr Onwugbonu, who has given evidence in this matter before, and in whose case there is an extant appeal relating to the IPCC investigations. He gave evidence at the Crown Court, and was cross examined over no fewer than six days about an incident that took place in less than half an hour. As I shall come to, he has also been subjected to a considerable degree of personal criticism by his former colleagues, some of which is concerned (as I shall discuss below) with little more than ill-considered vilification about inconsequential matters which do those who advance it little credit. But be that as it may, his solicitor has intimated that he will not give evidence before me, although as already noted, it is not clear whether that was said on instructions. However I do not consider that the reasons advanced by his solicitor can justify his non-attendance, nor the Claimants’ decision not to call him. I must have regard to that fact when I consider what weight I should ascribe to it. But the fact remains that his evidence has been lawfully admitted, and the Third to Sixth Parties could have required him to give evidence, but elected not to do so. (f) Ruling on the admissibility of evidence about the Claimants’ activities[39]As will become apparent, each of the three claimants have been convicted, cautioned or reprimanded for various offences. On any view that evidence was a proper subject for cross examination, as Ms Gerry and Ms Kaufmann QC accepted. They have also been arrested on other occasions, and have been the subject of many stops and searches, most of which have proved negative. They have also (and especially Ahmed Hegazy and Basil Khan) been the subject of a good deal of internal police intelligence.[40]One must be realistic. If teenage youths go around together in a part of London which endures a fair amount of crime (and I heard evidence about it being known for street robbery, drug taking and prostitution) it is not surprising that they have been stopped and searched many times. I did not regard the facts of the negative stops and searches as indicating any propensity to commit crime on their part. Mr Hardy very properly accepted that the only relevance of the material about stops and searches and about other Police Intelligence was to show that they had been in a particular place at a particular time, or what happened when they were stopped and searched. So far as the Police Intelligence was concerned, it cannot show anything that could affect the credibility of a witness, for obvious reasons.[41]But I must add also that I do not treat the fact that they had been stopped and searched often without anything been found as being a matter for which the officers who had done so should be criticised. Policing an area such as this requires that the full range of measures is available for use, provided that sensible discretion and judgment is used. In this case the critical questions were not why previous stops and searches had taken place, but(a) why the TSG unit had turned from its course to find this group, and(b) what happened during the incident, including what was said to be a lawful stop and search of Ahmed Hegazy.

C The Claimants and the TSG officers on the van- background, character etc

(a) The Claimants

[42]Omar Mohidin was born in Kuwait to Iraqi parents. He came to this country in 1996 and is now a British citizen. At the time of this incident he was almost 17. Since then he has studied Pharmaceutical Sciences at University.[43]On 7 February 2006 (when he was 15) he was reprimanded for using disorderly behaviour at Hammersmith Bus Station. It concerned an argument with a bus driver. On 5 November 2008 he was convicted of travelling on the railway without paying a fare when he used his girlfriend’s Oyster card to get to Hounslow and Maida Vale. On 15 December 2009 he pleaded guilty to the theft of a mobile telephone on the 21 March 2009 from the manager’s officer of Burger King in Queensway. On 23 October 2009 he pleaded guilty to an offence of false representation, namely using someone else’s Oyster card. He was fined £50. On 23 December 2009 he pleaded guilty at the Magistrates Court to a theft of a black leather jacket from a clothing store, for which he was in due course made the subject of a community order with an unpaid work requirement and a curfew requirement.[44]On 3 November 2010 he was sentenced after a trial to an offence of assault on a member of staff at McDonalds Restaurant in Ealing by hitting him with a rucksack.[45]He told Mr Hardy QC that at this stage in his life (the years before and after the incident) there were times when he was dishonest and violent. He gave evidence that he had had the intention of joining the police force. He said that he had decided not to because of what had happened in this incident.[46]There was an incident referred to in the medical records that on 15 November 2011 he had dropped his girlfriend at Acton Town and then taken a 94 bus before getting off to walk through streets back to his house. The former Prime Minister Mr Blair lives in that vicinity. He was questioned by the police. FTAC is an organisation set up by the Barnet Enfield and Haringey Mental Health NHS Trust and the Metropolitan Police Service. Concern was raised because it appeared that Omar Mohidin wished to touch a weapon carried by the armed police officers who attended. The view was formed that he clearly did not pose a threat to others but appeared to be a vulnerable man who had a preoccupation with a protected site. He was visited at home by the FTAC Service Manager and two police officers. He was described as being pleasant, cooperative and appropriate in mood, thinking and behaviour. There was no sign of mental disorder or abnormal experience. He said that his only previous contact with the psychiatric service was many years ago for the purposes of a report requested in relation to legal proceedings (i.e. these proceedings). He also referred to past difficulties with police officers. The officers and the FTAC Service Manager were informed that he had always wanted to join the police service and he had approached the armed officers because “they are dressed cool.”[47]Basil Khan was born in Kuwait in 1990, and came here in 1996. He works as a porter at a local medical services laboratory. He has a degree.[48]On 15 November 2005 he appeared at the Hammersmith Youth Court for a public order offence and he was made the subject of a referral order. On 10 April 2008 for handling stolen goods on a date between June and December 2007 he received a Community Order with a Supervision Requirement, having pleaded guilty. On 9 February 2011 having pleaded guilty to an offence of shoplifting on 3 February 2011 he was fined £85. On 8 November 2011 he was convicted of theft on 8 October 2011 to which he had pleaded guilty, and was made the subject of a community order with a curfew requirement. He had also been reprimanded for theft in September 2004, for criminal damage on 13 June 2008, and on 25 November 2013 had been cautioned for possessing cocaine and had received a penalty notice for possession of cannabis.[49]Ahmed Hegazy was 17 at the date of this incident. He is of Egyptian origin, but was born in the United Kingdom. His father had owned a small supermarket and then worked in various security jobs. He has an older sister, with a qualification in Business Studies who now teaches English in Egypt. Another sister graduated from University College London and works in a Travel Agency. He left school without qualifications save in mathematics.[50]On 5 March 2007 Ahmed Hegazy pleaded guilty at the Hammersmith Juvenile Court to robbery of a mobile phone, for which he received a referral order for nine months. The offence had happened on 3 March 2007. On 15 April 2008 he pleaded guilty to an attempted robbery on 16 January 2007, for which he received a community order for 18 months with requirements. On 21 April 2009 at Southwark Crown Court it was varied to a custodial sentence of 36 weeks wholly suspended for 12 months, together with a programme requirement. On 5 May 2009 for offences of assault occasioning actual bodily harm and criminal damage he received concurrent custodial sentences of 16 weeks suspended for 12 months with a supervision requirement. On 30 November 2010 he was fined for possession of cannabis some eleven days earlier, having pleaded guilty. On 21 June 2011 he was fined £85 for a similar offence. On 24 July 2012 for two offences of battery he was convicted after trial and made the subject of a community order. That related to an argument with a security officer at Whiteleys’ store near Paddington. On 20 September 2013 he appeared at the Southwark Crown Court for an offence of robbery committed on 18 January 2012, for which he received a sentence of 54 months imprisonment. He also received a concurrent six month sentence of imprisonment for aggravated vehicle taking on the same date, and a three month consecutive sentence for failing to surrender to custody. The circumstances of the offences were that he and two others had decided to book a private mini cab so as to rob the driver. He was robbed of a mobile phone cash and credit cards. He was put into the rear of the vehicle where he was told that those who were attacking him had a knife and guns. He had his coat put over his head and the PIN numbers of the cards were demanded from him. They let him get out of the cab at a nearby junction. The vehicle was then crashed and the perpetrators were discovered hiding in rear gardens. He was arrested at the scene.[51]The medical records from prison (HMP Wormwood Scrubs) showed that in March 2013 he was put under restraint and handcuffed, insisted on being naked and complaining that the officers in the prison were treating him like a dog. He was described as being very angry. On 30 March 2013 the nurse was called to attend to him. He was complaining of chest pain and was being verbally aggressive and threatening to do something else to the officers. He accused officers of being rapists and said that they were the ones to be watched. He became angry, shouting and refusing to leave the treatment room. He was placed on segregation. On 10 May 2013 he was again placed on segregation under restraint following an incident with prison staff. He again appeared angry, rude and was complaining of chest pains. When asked about these incidents, he told the court that he agreed that he could get angry, and he was angry at his treatment in prison. He said that the officers on his wing were very racist. His anger was such that he was put under restraint and placed in the segregation unit.[52]He agreed that he started smoking cannabis when he was 13. He smoked it to block things out, and that it made him feel more mellow. He told Mr Beggs QC that he was very familiar with the procedure of “booking in” at a police station and with going into a cell.

(b) The officers on the TSG carrier including PC Onwugbonu

[53]Neil Brown is a former officer in the Metropolitan Police, having been retired on medical grounds in 2013. He is now 38 years old. He is a graduate in English Literature and Social Policy, who joined the force in 2002. He qualified at Hendon Police College with distinction. He applied to join the TSG, which he did in 2005. He is an accredited Firearms Officer. Training for that role involved, among other things, learning the ability to work under pressure, and ensuring that one would “not do something silly.” He has been trained in equality and diversity issues. His family are drawn from a widely diverse family, which includes African, Arabic and Hispanic members.[54]Former PC Mark Jones is now 48 years old. He retired from the Metropolitan Police in 2013 on health grounds. He had joined the force in 1990, having served as a Royal Marine from the time he was 17, in 1984. He joined the TSG in 1995, in which he remained until his retirement. He was a fully trained Firearms officer.[55]PC Steven White is a serving police officer. He joined the Thames Valley Police in 2003, joining the Metropolitan Police in 2005. Since the incident he has transferred to the CID.[56]Former Sergeant William Wilson joined the Metropolitan Police in 1979. In 1990 he transferred to the Warwickshire Constabulary, but re-joined the Metropolitan Police in 1994. He was promoted to Sergeant in 1999, and was a core sergeant and recruit trainer at Hendon Police College. Among subjects he taught was a two week diversity section of the foundation course for new recruits. He joined the TSG in 2003, where he remained until the time of this incident after which he was suspended for two years until his acquittal in 2009. He retired in November 2009.[57]PC Simon Prout is a serving officer in the Metropolitan Police. He joined it in November 2004, having previously been in the Hertfordshire Constabulary. He went straight into the TSG. He has taken and given courses in diversity in both forces. He now works on special operations.[58]PC Giles Kitchener completed his training course at Hendon Police College (where he was class captain) and joined the Metropolitan Police. Among other assignments, he ran a Team Leader programme on attachment to the Prince’s Trust. He joined the TSG in May 2007, a little over 2 weeks before the incident in question. After the trial of the officers at Kingston Crown Court (when the trial judge withdrew the case against him from the jury), he was required to leave the TSG. He was put in charge of a team in Ealing supporting safe neighbourhood teams. He is now a trainee detective.[59]PC Amechi Onwugbonu had been in the Metropolitan Police since 2000, having previously served in the British Transport Police. He had been a TSG officer for at least 2 years by June 2007. He is still a serving police officer. I had a great deal of material put before me by the Third to Sixth Parties about him.[60]Each of the Third to Sixth Parties gave evidence about PC Onwugbonu, as did other witnesses called on their behalf, who also gave evidence about Messrs Brown, Jones, Wilson and White. I start by observing that there was no evidence before me from PC Onwugbonu which set out any observations he may have had, but of course his solicitors had declined the opportunity for him to give evidence.[61]PC Brown said that he endeavoured to get on with everyone professionally. Although they shared the common ground of an interest in motorcycles, they were not friends. In his witness statement he said that PC Onwugbonu was not a natural TSG officer. He said that he would express his strongly held views to PC Brown as they stood at their lockers, which were adjoining. He said that PC Onwugbonu did not like PC Jones. He strongly suspected that he had made up the allegations to try and get PC Jones moved away from TSG, and considered that PC Onwugbonu “did not appreciate the enormity of his allegations and that the likely consequences would be much more serious.” PC Brown said that he had spoken to PC Onwugbonu on 12th June 2007, who had told PC Brown that he was sorry for the situation he was in, and had only wanted Sergeant Wilson and PC Mark Jones to be involved. He told PC Brown that when he had spoken to Inspector Banks, it was the Inspector who had insisted on DPS being involved. PC Brown said that PC Onwugbonu told him that he (PC Brown) had done nothing wrong.[62]PC Mark Jones had known PC Onwugbonu for some years, and had worked with him with almost daily for 2 years before June 2007. He said in his witness statement that they did not really get on, and he found PC Onwugbonu “arrogant and lazy.” He would drive past incidents, was opinionated, did not volunteer for jobs or get involved in unpleasant or difficult work, and was often late for work. He did not cope well with confrontation, and would not want to get involved at all if it meant stopping members of the public who came from an ethnic minority. That was because he seemed to feel embarrassed to do so as a black officer. If an incident occurred he would often remain on the van. In July 2005 he had wrongly alleged that PC Mark Jones and another officer had put a mouse in his locker.[63]PC Steven White said in his witness statement that he had known PC Onwugbonu for a little over two years. Before PC Onwugbonu had joined the TSG (in 2005) he had been entrusted with helping new officers just out of training school perform street duties. PC White’s view was that PC Onwugbonu had always made it clear that he was motivated by money, and would get upset over the allocation of overtime. PC White said that they had a professional working relationship, but complained that on one occasion PC Onwugbonu had carried out an arrest (of six men suspected of a scam on casinos) when he thought that he (PC White) should have done. He too regarded him as opinionated, not good at accepting criticism and had what he called “an issue” when dealing with confrontation, and “a problem” dealing with the stopping of members of ethnic minorities. He also recounted an incident at the Unit’s Christmas party when PC Onwugbonu approached him and said that PC White would be “all right” and that he had never wanted things to get this far. PC White thought that PC Onwugbonu did not appreciate the seriousness of the situation.[64]Sergeant William Wilson, in his witness statement, said that he had known PC Onwugbonu for about 2 years. He described him as a “reasonably competent officer, although he inclined to being a bit lazy at times, and I formed the impression that he did not like confrontational situations.” He considered that PC Onwugbonu was sometimes not assertive enough. He had criticised him for wanting to allow an uninsured driver to take his (the driver’s) children to school. Sergeant Wilson thought that PC Onwugbonu could have dealt with his complaint about the mouse in his locker by letting him (Sergeant Wilson) deal with it, rather than reporting it to the Inspector.[65]PC Prout started with the TSG at about the same time as PC Onwugbonu. In his witness statement he described him as “pleasant enough” but said he was opinionated, which could cause friction. PC Prout said that he was not a team player. PC Prout also described PC Mark Jones and PC Onwugbonu as having alpha male personalities, who would clash. They behaved professionally to each other, but did not get on.[66]When giving evidence orally, PC Prout told Ms Kaufmann QC that at the time of the incident he had believed PC Onwugbonu to be honest and fair. On the night of the incident he had seemed really upset. While he had seen him upset before (as he had others in the unit) he had never seen him as upset as this. In re-examination by Mr Hardy, he said that he no longer thought him to be honest and fair, but no reasons for that were adduced.[67]PC Kitchener, in his witness statement, said that he had not met PC Onwugbonu until May 2007, when PC Kitchener joined the TSG Unit. He said that there had been an incident when it was alleged that one group of schoolchildren had robbed another. The van (driven by PC Onwugbonu) stopped and a group of black schoolchildren matching the description, was stopped by PC Kitchener and searched. They were arrested and put in the TSG carrier. At some point PC Onwugbonu said “why are we hassling these kids,” which led PC Kitchener to think that he disliked dealing with young black males.[68]PC Richard Everett (the same PC Everett whose statement to DPS was adduced on behalf of Basil Khan as hearsay evidence) gave oral evidence. He gave evidence that a witness statement made by him in the proceedings on 10th March 2015 was true. In that he described how he joined the TSG in 2004 at Paddington Green Police Station, and was still a member of it. He gave descriptions of the various officers involved in the incident of 1st June 2007: i). Sergeant Wilson was said to have a wealth of experience and expertise, who was a good solid supervisor who would not take any nonsense; ii). PC Brown was a very professional officer who was very good at his job. He was very bright with a good work ethic and huge ability as a police officer. They were friends; iii). PC Mark Jones was “without doubt one of the best police officers I ever worked with.” He was extremely professional, highly motivated and committed to his work as a police officer; iv). PC Steven White was a very thorough police officer and competent.[69]He had no concern about any of those four officers, nor ever saw any conduct from them that gave him any cause for concern. However that was not his view of PC Onwugbonu, with whom he disliked working. PC Onwugbonu was a very strong character who liked to give his opinion on things. He did not consider that he should have to deal with black youths on the street, and would feel very uncomfortable if a black person was stopped, and would not want to get involved. That caused discontent among other officers, because he was not doing his fair share of the work. However he would “happily get involved with white people, but wouldn’t be willing to help when the person concerned was from other racial groups.”[70]He said that PC Onwugbonu had made a false allegation against him and PC Jones about a forced entry and search in Hammersmith, which was not pursued by DPS.[71]He finished his witness statement thus “30. …….I genuinely think that PC Onwugbonu simply didn’t want to work with PC Jones anymore and he thought that if he made an allegation PC Jones would be moved off the TSG. PC Onwugbonu may be malicious, but he is not very bright, and I doubt that he appreciated the seriousness of his allegations he was making or what the likely consequences would be for PC Jones and the other officers.”[72]Perhaps unsurprisingly, that last passage was the subject of some short, sharp and effective cross examination by Ms Kaufmann who invited him to reflect on the fact that it was absurd to suggest that PC Onwugbonu would not appreciate the significance of what he said when he had complained. I shall return to this matter again in due course.[73]PC Roderick Michael James-Bowen, formerly a member of TSG at Paddington Green, and now a member of the Diplomatic Protection Group, gave a witness statement in the proceedings, principally concerned with the similar fact evidence relating to the incident involving Babar Ahmad. However his witness statement (which he adopted in examination in chief) also dealt with the officers involved in the June 2007 incident. He had known PC Mark Jones since 2002, describing him as an outstanding officer, who had a laid back approach. PC Brown was his former “partner” whom he held in high regard. He had known Sergeant Wilson and PC White for less time, but described both as keen and professional. He then turned to PC Onwugbonu. He fell out with him in December 2006, because he said that PC Onwugbonu had disputed the use of the Unit’s social club funds to pay for a Christmas event which he could not attend. He thought him quite selfish in this request. He also referred to the incident in 2005 when PC Onwugbonu had complained that PC Mark Jones had put a dead mouse in his locker.

D The TSG Carrier

[74]The TSG carrier is effectively a minibus adapted for TSG use. It has tinted windows running down the sides from the front to just in front of the rear wheel arches. The tint of those windows darkens views into the vehicle. There are doors for the driver and the “operator”, who sits in what in an ordinary vehicle would be the front passenger seat. There is a sliding door on the nearside behind the operator’s seat, and a door to the rear of the vehicle. It contains 9 seats, which are laid out in the following arrangement (diagrammatic only) DIAGRAMMATIC VIEW OF CARRIER

E Events as the Carrier travels south and then returns north

[75]The evidence from Ahmed Hegazy on this topic was as follows. He said that on that date he had been in Hyde Park with a few of his friends. They had left during the afternoon although he was not sure at what time. They left to go to the supermarket to get alcohol, intending to go to the Somerfield supermarket on Edgware Road. He and his friends walked to the bus stop at first. He could not remember the discussion they had, but he remembered seeing a police van on the opposite side of the road, but said that there had been no discussion about it. They carried on towards the bus stop. He and his friends got a bus (he thought a number 15) and went to the supermarket where he bought a bottle of Smirnoff Ice Smirnoff Ice is a drink consisting of vodka and mixer drink . It has an alcohol content of about 5% . His recollection was that there were about 5-6 in his group. The intention was to go back to Hyde Park with the alcohol.[76]It was at that point that the TSG Carrier arrived. In cross examination by Mr Hardy he said that he could not remember if he had seen five white people in the back of the TSG van. He accepted that it would not be possible to see through tinted windows. He denied that it was a natural reaction to call out and make rude gestures at a police van. When it was put to him that he was concerned that the van would turn and follow him, he said that that was untrue and that that was the last thing on his mind. He had got on the bus and travelled one or two stops as he could not be bothered to walk.[77]Hearsay evidence was given by Mohammed Ahmed. He stated in a statement of 28 April 2008 that he was one of the group of which Ahmed Hegazy was a member. He said that “On 10 June 2007 in the afternoon – I don’t remember exactly what time as it was a while ago – I was with my friends, there were about six or seven of us. We had been walking from Hyde Park area along the Edgware Road. We were by Boots and Somerfields when we saw the police van.”[78]The claimant Omar Mohidin gave evidence about seeing the van. He said that on that day he was with Ahmed Hegazy, Basil Khan and others, making about six or seven people in all. He said that they had been in Hyde Park and headed onto Edgware Road to get to Maida Vale at some time in the afternoon. He noticed a police van on the opposite side of the road going south, and noticed an officer in the driver’s seat. He had simply looked at the carrier. They then got on a bus and went two stops. He noticed that the van had gone around the Marble Arch roundabout. He said that he thought that it might be coming back for his group because he had been stopped by the police before. After they had gone into a store to get some drinks he heard a skid and was then grabbed by PC Jones. When he was cross examined by Mr Hardy QC he was asked about a passage in his examination in chief as a witness at the Crown Court. He endorsed what he had said there, namely that while he could see the driver he could not see into the van otherwise because the windows were tinted, and there was too much sun so that he couldn’t see.[79]He also agreed that he had said that the police might be following his group. He told them that if there was anything that they should not be carrying they should get rid of it. He was afraid that others could have spliffs, cigarettes or Rizla papers. He could not remember whom exactly he had warned. He thought that he had told the whole crowd. He had done so because he had been stopped by the police before and he did not want to be stopped on a nice day.[80]So far as Basil Khan was concerned, he told the court that on that afternoon he had been in Hyde Park with Ahmed Hegazy, Omar Mohidin, and couple of mates, with there being about seven of them in all. He said that they left as a group to go towards the Edgware Road and when they got onto the Edgware Road he noticed a police van travelling southbound. He thought that they would have an interest in stopping and searching his group because that often happened. He was doing nothing to justify it. Having seen them, they decided to jump on a bus. Everyone got on a bus and went two stops getting out further up. Some of his group (but not him) went into the Somerfields supermarket. Shortly after his leaving it, the police van arrived. He was cross examined about his interview under caution by the police on 2 June 2007. He repeated what he had said in that interview that he was not part of a group walking up on the street intimidating members of the public, and that he was not part of a group making wanking gestures towards the van or shouting obscenities towards the police carrier.[81]I turn now to the evidence given by the police officers in the van. It was largely, if not wholly, to the same effect as between the officers. PC Brown said that on that date his unit was placed on the Commissioner’s Reserve. His unit was due to go to work in Lambeth from its base at Paddington Green. The day was particularly warm with the temperatures in the high twenties and sunshine. He knew all the others on the carrier except PC Kitchener, and had worked with all the others before. There was some delay in setting out because PC Onwugbonu was late in arriving. After receiving a Metbats A briefing document with names of those suspected of criminality, information about crime in the area and so on. briefing they set out. Their purpose was to get to Lambeth as soon as they could, where they were dealing with street crime in Brixton. However as the van drove down Edgware Road a group of youths attracted their attention. Mr Brown could not say who saw them first. The group turned to face the carrier and were gesturing. They were making wanker signs; they were sticking up middle fingers, and making beckoning gestures. He said “I could hear shouting, but I could not hear the specific words. But I could see that they were enunciating the words “fucking pussies.” I felt embarrassed. It looked appalling. Their behaviour in isolation was appalling. It was directed at the police carrier. It was not an option to drive on.”[82]He said that when one was on the Commissioner’s Reserve, one was required to deal with anything that cropped up which was seen. He said that a positive intervention was required because of the public perception. There would have been a dereliction of duty not to do so. The gestures and bad language were clearly directed at them. He said “I was not riled by it but I was embarrassed. My hackles did not rise.”[83]He said that while looking for the group the van stopped and he spoke to a restauranteur. He said that the van then carried on up the road. The restauranteur had said that he had thrown out a group matching the youths’ description. The carrier would have gone on to some side streets running off from Edgware Road to see if the group was there. They came across them at Sussex Gardens. The purpose of their going up to them was to be seen to speak to them because part of the rationale of the Territorial Support Group is that of high visibility policing.[84]When cross examined he accepted that there was no mention of the visit to the restaurant in his notebook. He said that he felt “professionally embarrassed” by the behaviour of the group, because it was directed at them as police officers. He accepted that the gestures were aimed at the police and not the public. He agreed that when they came upon them at Sussex Gardens there were no gesticulations or signs of public disorder, in what he described as “that particular freeze frame shot”. In further cross examination by Ms Kaufmann QC he said that he could not remember anything in the briefings about problems relating specifically to Basil Khan or Ahmed Hegazy. He remembered that the Metbats briefing said there were problems on Edgware Road, but not the names in question. However, Ms Kaufmann pointed out to him that in his witness statement of March 2015 he said “As such we had received a detailed power point briefing from Paddington District Management. We were therefore familiar with the current problems that Paddington Officers were facing, including with Basil Khan and Ahmed Hegazy. The briefing had specifically referred to Basil Khan causing problems on the Edgware Road. He was reported to have threatened local officers and was frequently and deliberately walking along the footpath of Edgware Road and barging into members of the public and becoming aggressive. With this in mind it was somewhat coincidental that as we had travelled out along Edgware Road towards Lambeth that we encountered and spotted a group of Arab youths walking along the footpath clearly walking four to five abreast in an intimidating manner to members of the public…”[85]However as Ms Kaufmann pointed out to him in his interview under caution by the DPS on 1 April 2008 he stated that he could not recall specifically any named individuals as part of that briefing. He said “I think there may well have been but I can’t recall specifically.” When Ms Kaufmann suggested that it was not credible that he could not remember this in 2008 but could remember it in March 2015 he stated that he had just put in the names, and that he had learned this information at the criminal trial.[86]He told Ms Kaufmann that it was not an everyday occurrence to see youths behaving like that towards the carrier, and he had felt disgusted by it. He insisted that he could see the words that were being enunciated, and demonstrated that to me from the witness box. He said that if the TSG do not do anything in a situation such as that then complaints are received. He was asked how the public could have been aware of any response some 15-20 minutes later when the van had disappeared from the Edgware Road down the back streets before coming back onto Edgware Road. He said in answer to that that there could have been “word on the streets”.[87]In his witness statement Mr Brown complained that the DPS did not investigate what he had said about the restaurant, to check its veracity. He accepted that he told DPS in his interview under caution that he did not remember the address of the restaurant and he had not said that he would get details. He responded that DPS were contacted after the interview and told by the Police Federation Representative that he could identify it. However Mr Brown also accepted in cross examination that while his notebook, which was written on the evening of 1 June 2007, gives details about what it was that was said by the group towards the van, it contains no suggestion of any visits to a restaurant.[88]The next witness was PC Mark Jones. He said this about the incident witnessed from the van when it was travelling southbound. “On 1 June 2007 I was on duty. PC Onwugbonu was driving. We set off to Lambeth down the Edgware Road. I cannot recall if we had had a formal briefing that day. As to the Metbats information, I tended to rely on my colleagues. I sometimes looked at it. On the opposite footway there was a group of 8-10 Arab youths barging past members of the public. One, who was Omar Mohidin, stepped forward and mouthed the words “fucking pussies” and gave the wanker sign towards the carrier. I had a clear and unobstructed view. I said “Did you see that? We should stop and speak to them.” It was a collective decision to go around Marble Arch and follow them. We stopped near a restaurant to see where they had gone. We followed them because of their general anti-social behaviour. It was about 15 or 20 minutes from the time that we saw them to coming across them in Sussex Gardens. Once we stopped them, we intended to speak to them about their behaviour. We may have gone round some side streets – I cannot recollect. The behaviour we had witnessed was not unusual for that vicinity or elsewhere in London.”[89]Mr Jones’s notebook, written that evening, is to much the same effect. He stated in it that the one he approached at Sussex Gardens – i.e. Omar Mohidin – was the one who had mouthed the words “fucking wankers” whilst gesticulating with both hands at the carrier. He said in the notebook that Mohidin had said it several times using the wanker sign. As noted above, Mr Jones did not finish his evidence in chief so could not be cross examined.[90]The next witness was PC Steven White. He said that there had been no briefing that afternoon before the van set off. However there was intelligence of which he was aware that Edgware Road at its junction with Sussex Gardens is a hot spot for prostitution and drug dealing. He had had no contact with the claimants before. He said that he became aware of a group of youths on the opposite pavement walking in the opposite direction from the carrier. PC Jones said something like “have you seen that lot. Look at that lot,” and drew the attention of the whole carrier to the group. PC White said that the first thing that he noticed was the conduct of the youths, because of the way they walked on the pavement. They were boisterous and spread across the footway and were, he supposed, obstructing it. He said that the standard he would apply was “would my wife or mother find it acceptable?” It was not possible to pass by, he said, when he had seen the mouthing of “you fucking pussies” and the “come on” gesture with hands. As the van started north up the Edgware Road it went into a couple of back streets looking for the group and also stopped once or twice on Edgware Road. He could remember PC Brown and PC Jones leaving the carrier and getting back on. He did not know what information they had. When he was cross examined by Ms Gerry he said that he did not know who it was who had mouthed “fucking pussies”. He thought that it was Police Constable Jones who suggested going back round to follow the group, because of their behaviour. He did not think that they had followed them because of any briefing. (He was there departing, and rightly so, from his witness statement, which had been padded out to include the phrase “and no doubt the briefing he had received”) He said that the behaviour they had seen passed his test of whether it would offend his mother or girlfriend. He would have felt the same if the gestures and language had been aimed at anyone else. He said that he had not felt angry but accepted that he possibly had felt affronted. He did not feel humiliated. He insisted that the van had stopped on its way northwards on Edgware Road. He accepted that there was nothing in his witness statement about the group doing anything other than making gestures and mouthing. His witness statement had said nothing about the way that they walked on the pavement. However he pointed out that he had referred to it in his interview with the DPS.[91]In answer to Ms Kaufmann QC he did remember an individual mouthing at the carrier in an exaggerated manner. He said this: “If left to me, maybe I would never have ended up at Sussex Gardens, or spent that long looking for them,” which accords with what he told the DPS in his interview. He went on to say that he had no objection to the decision that was taken.[92]The next witness was Sergeant Wilson who was the officer in charge of the van on that occasion. He said that his role was to ensure discipline on the carrier and to be there for advice. He said that if someone saw something he would rely on them to exercise their judgement. While he could have countermanded Jones’ decision that the group should be followed, he was quite happy with it. There would be no issue from senior officers if a TSG van stopped on the way elsewhere to deal with something. He said this “Once PC Jones said what he saw I saw them (the group) walking along the road. There was a ripple effect. People were getting out of the way and it looked intimidating.” When he was cross examined by Ms Kaufmann QC he said that he had seen no gestures or swearing by the group. He said that there was a point when Jones and Brown got off the carrier, but he did not know if that was to go into a restaurant.[93]The next witness was PC Kitchener, who had joined the TSG shortly before this incident. He said this:
“Travelling south I particularly recall wanker signs made with two hands. The one doing it had a black coat, black spiky hair and Arab appearance. We then did a circuit of the usual haunts. We would drive north, turn left and left and then back north onto Edgware Road.”
He said that a time came when PCs Brown and Jones got off the carrier and went into a shop to see if they had any information to offer. He was told that a group of youths had been in there causing a disturbance and been thrown out. He went on “That renewed our impetus to find them. It may have waned a bit by then.” When the van pulled up at Sussex Gardens he recognised Ahmed Hegazy from the earlier incident he had seen across the road. When cross examined by Ms Kaufmann QC he agreed that he thought that following the group had been the idea of PC Jones. He said he had some recollection of a point coming when people said it was not a good idea to continue, but said that when there had been a visit to the shop that had renewed the impetus to look for them. That occurred after two circuits of side roads of Edgware Road. It was pointed out to him by Ms Kaufmann that he had never mentioned this until he made his witness statement in March 2015. He said that he had not done so before as it was not relevant to the offence with which the incident was concerned.[94]The next witness was PC Prout. He was the operator on the van that day sitting in the front nearside seat, keeping a log, map reading, and completing checks on individuals. He said that he did see the group of individuals passing up Edgware Road. He said that their demeanour struck him. It was a group of individuals bunched together the behaviour of some caught his attention in mouthing insults and one seemed to be making beckoning gestures inviting a confrontation. The decision was made to go around Marble Arch and come back. There were largely unsuccessful attempts to locate the group. He described it as “not a quick process, which was beginning to drag on.” There was a difference of opinion when PC Onwugbonu said it was not worth carrying on, and he agreed with him. Sergeant Wilson said that they should carry on. When cross examined by Ms Gerry, he said that he did see someone mouthing off “fucking pussies,” and saw gestures, which he thought were aimed at the carrier. He said that in his notebook written that evening he had referred to a report of a group of youths that had been terrorising pedestrians and local shop keepers and that it was decided that we would speak to the group as their behaviour strongly suggested that that was the group in question.[95]The hearsay evidence of PC Amechi Onwugbonu was to the effect that PC Jones had shouted from the rear of the carrier that he (PC Onwugbonu) who was driving should do a U turn on Edgware Road, because someone had shouted abuse as the carrier went passed. He said that he saw 7-10 young Arab males at the bus stop just outside a public house on the opposite side of the road. He described his negotiating the one way system, and then heading north and carrying out an area search for the youths for about 20 minutes. His evidence in his statement given on 6 June 2007 was that all the directions were mainly given by PC Jones in terms of the areas to search. He said that there was one point where PC Jones and PC Brown got out of the carrier for a look down an alleyway while the rest of the officers waited on the carrier. PC Onwugbonu said this “I turned around and said to Sergeant Wilson “is this it? What have they done?” Sergeant Wilson shrugged his shoulder saying “it looks like he has got a bee in his bonnet.”

F Edgware Road events

(a) Evidence of the Claimants

[96]The evidence of and for the claimants was as follows. I shall deal with them in the order in which they were involved in the incidents at the van.[97]Omar Mohidin was 16 at the time of the events in the Edgware Road. He said that after they went into Sussex Gardens, he heard a skid and remembered being grabbed. It was an officer in uniform, who was PC Mark Jones. Omar Mohidin said that he was grabbed and dragged into the side door of the van, when he was handcuffed and put on to a seat. Jones did not introduce himself as a police officer. Omar Mohidin said “He accused me of calling him a pussy. He said “you calling us pussies you are a fucking schoolboy.” He said nothing else about why he was taking hold of me.” Omar Mohidin said that there was a lot of screaming and shouting from PC Jones, and he looked as if he was going to get very physical. He went on “He told me to stand up and sit down repeatedly. He was asking me where I was from. I said I was born in Kuwait but I was from Iraq. He then went mental and shouted louder in my face and screamed. He said “Iraq, fucking Iraq, I got mates out there being killed by fuckers like you, and you are out here fucking robbing people.” He was screaming at me. Every time he told me to get up he had his face very close to mine, and every time he did so I could feel his saliva hitting my face. I felt as if I was getting terrorised. I was terrified. I was 16. I was very scared.”[98]He said he was in shock and only did what Jones told him to do. He remembered Jones telling him to sit down again. He realised what was going on outside the van. He noticed a few officers on his friend Ahmed Hegazy. He had heard a lot of shouting. It was not an argument it was someone shouting out of pain. They had hold of his lower and upper body but he could not remember the details. He saw it for about 3 or 4 seconds. He went on “He (PC Jones) told me not to move and said “don’t fucking move or else.” He said that he rushed out of the same side door. It had not been fully closed or pushed to before. In front of him there was a police officer sitting behind the driver’s seat who was the one who was driving the van when he first saw it. He was the black officer PC Onwugbonu. He was not participating. His body language said that he was not participating. He thought that he would speak to him. He went on:
“I asked him if he would help, and I said it was police brutality. He did not look back at me he said “I know. I can’t do anything about it. I am sorry mate.””
[99]He went on to say that the door opened up and he saw Ahmed Hegazy being brought in head first with around four police officers carrying him with his head towards the driver’s seat. The officers were being very aggressive towards him. When they put him in the van Omar Mohidin said that they started getting “very physical.” He said that “They had him on the ground on top of him. I saw elbows going up and down. I could not see where they were landing. I had a blind spot I think that was the corner of the chair (seat)”. Then he said that everything went silent and the police carried on doing what they were doing. He said he was really scared and that he thought it would happen to him and he also said that he was really scared when Ahmed went silent because he thought that he might have died. Then he said that he started to hear an officer laughing “Oh look at him he is crying.” Then he thought at least he knew that Ahmed was OK.[100]Omar Mohidin was sitting in the last seat on the driver’s side. He said that the van was crowded, and he was terrified and scared. He saw a police officer come out of the crowd towards him. He was again very scared. It was PC Mark Jones. While he could not remember the exact detail he remembered that PC Jones told him to stand up and turn around. His chin was over his (Omar Mohidin’s) left shoulder. He said “This is your lucky day. What you have seen – do you want this to happen to you?” As he took Omar Mohidin’s handcuffs off, he went on “if I see you in the area in the next 24 hours you’ll be nicked.” The officer took his handcuffs off and pushed him out of the back door.[101]Omar Mohidin said that he then felt some relief but was really scared. His friends were still on the pavement, and there was a lot of shouting and screaming of “police brutality” and “racist fucks.” Then he saw the van stop. Mark Jones got out. He said he thought “Oh no he’s going to take me.” PC Jones took Basil Khan into the van. He heard no one say “I’ll fucking kill you.” As Basil Khan was grabbed he did not hear him say anything like “I am going to stick you. I am going to watch you go cold as your blood drains away.” He said that he heard nothing like that. He said that Basil Khan was taken on to the van and then the van left again.[102]When he was cross examined by Mr Hardy QC he said that he had assumed that it was Basil Khan whom he had heard shouting “racist fucks.” because it sounded like his voice. He did not see any hand gestures before PC Jones came out and grabbed Basil Khan. It was put to him that he and PC Jones had simply walked to the van, where he was searched for drugs after being given the option of being searched on the van. He said that was all untrue. He accepted that he had not said before that he had been handcuffed (which is not actually true- he had told Dr Lord the psychiatrist in early 2011.) He said he had not mentioned it in his witness statement of August 2007 because he had been contacted 5 or 6 times by the police insisting that he should meet them. They had come to his house and talked to his mother and invited him to Starbucks for a hot chocolate. He did not know whose side they were on when he saw them so he only gave them a quick summary. For example, he left out mention of getting on the bus and some other things. He thought it was common sense that they used handcuffs. He said that he had handcuffs on his hands behind him and tried to reach his telephone. He insisted that, contrary to Mr Hardy’s questions, he had not been patted down or searched for drugs. He thought that he had been on the van for about 20 minutes. He also said that as far as he was concerned Ahmed Hegazy was face down and he could remember him face down.[103]Omar Mohidin was also cross examined by Mr Hardy about an occasion when, as he admitted, he had attended a demonstration outside the Israeli Embassy on 29th December 2008. It was suggested to him that on that occasion he had been active in shouting abuse and threats at police officers who were “corralling” the protesters. It was said that he had made a speech, and that he had shouted at the Police officers present as follows; “Do you know PC Mark Jones? I’m getting him sacked for nothing. I’m going to get £40,000 from the Paddington Police and I’m going to send it all to our brothers in Palestine.” In due course the crowd dispersed, but he kept shouting at officers “Don’t fucking touch me or you’ll lose your job like PC Mark Jones”. A Sergeant Burger had taken his name.[104]Omar Mohidin said that he did not normally attend protests. He took no interest in matters concerning Israel and Arabs. He had gone there because of a phone call he had received that there would be good looking girls there. It is true that the Police were taking names. He never sounded off about anything or said anything about bringing a claim against PC Jones.[105]Ahmed Hegazy said that he had gone into the Somerfield supermarket on Edgware Road and bought a bottle of Smirnoff Ice. He said that they meant to go back to Hyde Park with the alcohol. However the police van was outside, and one officer, whom he described as white, stocky and a bit bald, came up to him. (That officer was undoubtedly PC Brown) The first thing that the officer did was to go for the bottle and ask Ahmed Hegazy his age. Ahmed Hegazy told him he was 17, whereupon the officer poured the contents away saying “you won’t be needing this.” Ahmed Hegazy said he was not affected by that because he could have bought another bottle. The officer then turned back towards him and began to pull around his belt. He thought that he had pulled up his own belt before they came towards him. He could not remember what was said to him. One officer was talking to him saying things like “you fat cunt” and “ugly”. He responded in due course and said “I get more girls than you” in a joking way. He said that he felt a bit insulted, but took it as a joke. The officer then shouted at him “you threatened to get blood from me”. He had not said that. He was also pulling up his (Ahmed Hegazy’s) jumper. He had not asked about anything which he was holding. He was not sure if anything was taken from him. He had a mobile phone on him and, he thought, a wallet. If he had his wallet with him it would have contained his bank card, an Oyster card and cash, and possibly a provisional driving licence. Ahmed Hegazy could not remember if he handed anything to the officers at this point. He said that the officer repeated what he had said about blood a few times and was saying it loudly.[106]Ahmed Hegazy thought that the officer went for his handcuffs. There were some other officers there dealing with other people. As the officers shouted quite loudly the other officers showed some interest. He said that the officers tried to arrest him - i.e. they were trying to put his handcuffs on him. He did not think that the officer had said anything. Ahmed Hegazy asked the officer if he was serious and why was he arresting him. When the officer put the handcuffs on him he said that he was shocked. He said “why are you arresting me?” He said that he was handcuffed to the front. He was not sure if he had got an answer to his question, because he could not remember. He had said nothing abusive. He had not called him a “fucking cunt” or said “I will fucking kill you.”[107]He said that the next officer who came was slimmer and taller and had, he thought, black hair (a description that matches PC White). That officer tried to put his foot out to take him down to the floor, and he eventually went to the floor. The second officer tackled him down to the floor, literally next to the van. The two officers held him down to the floor and he thought a few more joined them. He thought that there were maybe one or two more restraining his legs in some sort of lock. He said that he was trying to move his legs, because of the pressure on them. He was trying to move all of his body as he was very uncomfortable. He said that he said nothing. The officers were saying that they wanted to get him on to the van. He thought that it was because people were watching, but he could not recall if that was said.[108]The officers lifted him up by the hands and legs with his face upwards. There were three or four officers, but he could not remember exactly what parts of his body they had hold of. He was put into the carrier, and was struggling as he was placed in it. When he was put into the van he was put near the front of the van. He could not remember if he made contact with the officers. He could not remember if an officer said that he (Ahmed Hegazy) had hit him with his elbow. He was facing upwards, with his head towards the front of the van and his feet towards the rear. No one had hold of his head, which was next to a fire extinguisher and something else. (That fire extinguisher lies at the front of the rear compartment next to the inner edge of a bulkhead behind the driver’s seat). He said that most of the officers dealing with him came into the van, but he could not remember exactly where they went. The shorter one (i.e. PC Brown) was on his left side, but he did not know if he was standing or sitting. He could not recall any restraints being placed on him other than the handcuffs. He said that they were tight and his ability to move was very limited. He could not remember if he said anything or if the officer said anything, but he said that he felt quite scared.[109]He then said this; “I might have been told already that I was being arrested. I think it was while the handcuffs were being applied. I think it was for threats to kill a police officer. I later learned that it was for that.” He was not later told that he was under arrest on the way to the police station.[110]He said that he was in a lot of pain, all over his body. He could not recall what the officer to his left was doing. He said that someone he referred to as the “second officer” came towards him and grabbed his neck with his left hand and started strangling him with it. He then started punching him with his right hand, and he could not speak. That officer started shouting a lot and swearing at me, saying “you fucking Arab.” He did not respond at all. The officer punched him two or three times in the face. He said that he thought someone outside was shouting towards the van. He thought that it was Basil Khan as he was the one who came in after that. He did not know who it was then. He heard shouts of “don’t worry” and “leave him alone”.[111]He said that an officer walked over him. One or two walked over him and in doing so stepped on him from his stomach downwards. He could not remember if the door was open or closed but he was lying across the way of anyone entering the van through the side door. The officers then came back in with Basil, went to the back of the van, and all of them including Basil stepped on him. He thought that the stepping on him may possibly have been accidental.[112]There was no more physical contact by the first officer during the journey. However he started taking off his body armour and said “I’ll take your handcuffs off and we will have a one to one”. He said that he was shouting it very aggressively. He did not take the handcuffs off. There was a time when the first officer picked up his leg and forced it onto a chair. He could not remember other officers doing anything else during the journey.[113]I shall deal with his evidence about what happened at the police station in due course.[114]He told the Court in evidence that he had injuries as a result of what had occurred: a lump on his leg, scratching and bruising of his neck and near his ear, on his wrist, and a few marks on his body, but he could not remember where. Dr Alan Frazer (from whom there were witness statements admitted as hearsay evidence), who was on duty as forensic medical examiner at Paddington Green on 1st June 2007 examined him at 21.08. As well as his work in general practice, he is a very experienced and well qualified forensic medical practitioner. He also has particular experience of dealing with musculoskeletal and soft tissue injuries, having been team doctor to three major professional football clubs in the London area, all of which have been in the Premier League from time to time Not that there is any reason to think that injuries in the Premier League are any different in nature or extent from those sustained at any level of professional football . Ahmed Hegazy complained of being kicked and punched. He was seen to be upset and crying.[115]Dr Frazer (who took photographs) found bruises to his upper arms, and especially to his left arm. They were consistent with the arms being gripped firmly. He had faint bruising round his left shoulder blade, diffuse bruising over the left side of his neck, reddening of his right temple, bruising on the back of neck and lower head, and minor weals on both wrists from the wearing of handcuffs. He considered that the diffuse bruising around the neck, which was red and obvious, was not caused by a blow, but by the application of pressure. While he could not exclude the possibility, he did not consider that the injuries he saw were attributable to “full blown kicks, heavy punches, being struck by a stick or truncheon.”[116]Ahmed Hegazy’s mother and sister went to the Police Station. Both made witness statements admitted under hearsay notices. He was released at about 3.30 am. Both say that he was bruised, shocked and complaining of pain. They took him to the Chelsea and Westminster Hospital where he was seen at 4.00 am on 2nd June 2007 shortly after his release. He complained of the injuries noted, and of swelling of the shins, where he said he had been kicked. His left wrist, leg and left ankle were X-rayed and no fractures were found. In her statement his mother said that she saw a footprint on the shoulder of the jumper he was wearing, which Ahmed said had got there “because he had put his foot on my shoulder.”[117]He was cross examined by Mr Hardy QC. He agreed that he had moved his hand at his trousers. He denied that he was familiar with anything to be described as a distraction technique. He agreed that Omar Mohidin was the first of his group to be taken onto the van. It was pointed out to him that at the trial of the officers in the Crown Court, at which he gave evidence, he said that the officer and Omar Mohidin had walked off to the van. He said in the witness box that he could not remember that. It was pointed out to him also that at the trial he accepted that the officer had said something about him hiding drugs. He accepted in answer to Mr Beggs QC on behalf of the defendant that in his interview by the police he had said that it was Smirnoff Vodka i.e. unmixed vodka with an alcohol percentage of c 37.5% rather than Smirnoff Ice. He also accepted that he also could have smoked cannabis at some time during that day. He said that it did not affect his perceptions as he saw it. He said that he smoked it to block things out and it made him feel more mellow. He could not remember if he was smoking spliffs throughout the day in question.[118]He also gave some evidence about what happened with regard to Basil Khan. I have referred above to what he said about Basil Khan’s entry when he was put down on the floor of the van. He was asked more questions by Mr Hardy QC about this topic. He said that Basil Khan was being dragged to the van and looked upset and angry. Although he had said at the Crown Court that he thought that Basil Khan had been punched, he said (as he did on that occasion) that he did not see him being punched. He said that he could not see the punch but he could hear what he described as “rattling”.[119]I have referred above to the hearsay statement of Mohammed Ahmed who was another member of the group of youths. He said this about the events at Sussex Gardens: “We were by Boots and Somerfield when we saw the police van. I knew that TSG officers were in that kind of van. We were stood in the large pavement area. The van stopped and all of the officers got out. We all got stopped. One particular officer stopped me and spoke to me. I will describe him as officer (1). He began to ask me my name and address – which I told him. He didn’t finish writing it down, as he was distracted by Ahmed. The officer did not search me. At this time I was stood with my back to a fence about six feet away from Ahmed who was slightly off to my left.[120]Officer 1 was distracted then by Ahmed (Ahmed Hegazy), who was screaming. I don’t remember what he was saying. Officer 1 left me then and went over to Ahmed. I stayed where I was. I could clearly see Ahmed and two officers with him one on each arm. Ahmed was then put on the floor by the officers. Ahmed was then picked up off the floor by the officers – two on his arms and one on his legs. The officers then put Ahmed in the van quickly, but not safely. Ahmed was put in the van on the floor with his face near the front and his legs near the rear. When this happened me and the others moved nearer the van. Basil was stood immediately next to me on my left. We stayed there watching. All of the Officers got on the van and it moved a bit. Suddenly the van stops and two officers got out. They got hold of Basil for no reason. He did not speak to Basil or explain what he was doing. I think one each of the officers grabbed an arm each of Basil. When this happened I was stood next to him. The officers put Basil on the van and the van left.”[121]The next witness was Basil Khan. When his group had got to Sussex Gardens, he had heard the screech of a tyre which he thought was the police van. He crossed over the entrance to Sussex Gardens and sat down on the other side opposite Boots shop next to Star Street. He had crossed the road because he wanted to avoid being stopped and searched. He said that at first everything was calm and the police officers were dealing with a group of his friends. He did not remember seeing Omar Mohidin at this point. It was only calm for a short while because then he saw police officers struggling and rushing towards the group. There was what he called an “argy bargy – pushing and struggling” with Ahmed Hegazy. He said that Ahmed Hegazy was half off the floor with four police officers around him. They were restraining him and it looked as if he was resisting them. They succeeded in getting him into the van. When Ahmed got to the van Basil Khan said that he crossed over thinking the van would leave. He crossed over with his mates to find out what was going on because he was concerned. There was discussion between them as to what had gone on, what had happened and so on. He did not know if the door was completely shut when the van began to roll forward. He said that “we wanted answers, and we began to move towards the van. We were shouting “why has he been arrested,”” but he never said “you racist fucks.” He said that he was at the front of the group and was saying “why has he been arrested?”[122]He said that the van stopped and suddenly the door was opened and he was dragged in by two police officers. He was dragged in with no warning and they said nothing to him. He did not say “I’m going to fucking kill you” and he did not say to PC Jones “I’m going to stick you. I’m going to watch you go cold as your blood drains away.” He told the court “I would not know how to put a sentence like that together at the age of 16. It’s a bit too Shakespeare for me.”[123]He said that it was not calm in the van. Ahmed Hegazy was lying on the floor. He was not comfortable and he was in pain and struggling. He was unaware of Omar Mohidin. Then he went on to say the following. “I was dragged in and placed on a chair at the very back by Mark Jones. It was seat F on the plan. Ahmed was on the floor, and I stepped on him by accident as I was being dragged along. I can’t really remember what Mark Jones told me. As the van began to move a police officer came in and sat on seat E See diagram of TSG carrier supra . He was on his knees facing seat F as if he was looking down at me. It was Sergeant Wilson; I saw his epaulettes. He asked me a number of questions like “what’s your name?” and “where are you from?” Basil Khan said that he was asking that very aggressively. He told Sergeant Wilson that he was from Kuwait. He went on “and without warning (he) slapped me straight across the left side of the face. I saw stars for one minute. I blacked out. I was shocked. By “seeing stars” it’s like when you get up too fast and see stars.”[124]He said that the Sergeant then got up and moved away, but he was then placed in a choke hold from the back (in other words someone’s arm around his neck from behind) and was pulled off his seat still in this lock. He got dragged back by the equipment rack. The officer was on the floor with Basil Khan on top of him with the officer having hold of his neck. He said that as the officer put him on the ground and he was on top of him there was more pressure. He was running out of breath. He went on “I got scared. I could not shout. I clapped my hands to get enough of the police officers’ attention. No one came. It seemed to go on for about ten minutes. I was feeling dizzy, my vision was not clear and I was seeing stars again.” He said that the officer then moved towards the front of the van where he remained for a short period and then came round again to the equipment rack area. He went on “I got more scared. He stood over me, shouting down at me. He was shouting abuse like “you’re a fucking schoolboy. Welcome to the real world. You don’t own the Edgware Road.” He repeatedly shouted abuse and screamed in my face. He slapped me twice. I then started to cover my face. He then hit the top of my head. He kept punching me on my head. He rubbed his knuckles on my head. He was still shouting abuse “You are a schoolboy. Welcome to the real world.” It eventually stopped as I was shouting and began to cry. It felt like twentyminutes to me that’s how long the whole journey felt.” ”[125]He was also examined by Dr Frazer, at 21.18 pm. Basil Khan complained of being kicked in the left side of his back. Dr Frazer (again in a witness statement admitted as hearsay) asked him to show him anywhere he had been injured. He noted a small area of bruising on the back of his left ear, minimal reddening of his wrists from handcuffs, but no bruising to his back. He took photographs. Dr Frazer did not consider that his injuries were consistent with “full blown kicks, heavy punches, being struck by a stick or truncheon.”[126]He went on to say that the atmosphere began to calm down before they got to the police station. He had been in seat F for 2-3 minutes but for the rest of the journey he had been by the equipment rack. It was suggested to him by Mr Hardy in cross examination that he had shouted “racist fucks” at the police van, which he denied. He said he was not shouting at the police officers but shouting at the van loud enough so that they could hear and he agreed that he was gesturing with open hands. He denied “giving the finger” and denied giving the “wanker sign” but did not know if others were giving it. He insisted that he was slapped in the van and had hands put around his neck in the van.

(b) evidence of PC Amechi Onwugbonu

[127]The next evidence about what happened in the van comes from PC Onwugbonu whose evidence was put in as hearsay evidence on behalf of Omar Mohidin and on behalf of Basil Khan.[128]It is important to note that PC Onwugbonu did not make up his notes in conjunction with any other officer. The other officers all made their notes in the same place, and all made them together save for PC Prout who insisted on writing his own recollection. That evening PC Onwugbonu not only wrote up his notebook but also prepared a statement in electronic form about what he said he had seen. On 6 June 2007 he made a further statement to the Directorate of Professional Standards.[129]PC Onwugbonu had been the driver of the van at the time when it went looking for the youths. His account is to the following effect (taken from the electronic file he prepared, which was retrieved from his computer. The document was prepared starting at 8:32pm.).[130]He said the following occurred after the carrier caught up with the group of youths. “Eventually the males were spotted in Edgware Road (at its junction with) Sussex Gardens outside Boots the Chemists. There was about ten youths present. PC Jones and the other officers jumped out of the carrier. I was blocking the road so I moved further into Sussex Gardens about 30 yards away from the junction. My colleagues approached the males who were all of Arabic origin and ranged between 15 -20 years old. PC Jones brought a young Arab male on the carrier who apparently shouted out the abuse at the carrier who later gave his name as Omar Mohidin. I was still in the driver’s seat but facing into the carrier observing what was going on as PC Jones was by himself, everyone else was dealing with other males by the chemist, members of the public had started to gather, the rear carrier door was closed by one of my colleagues, I can’t remember who, whilst PC Jones and Omar were still inside the carrier.”[131]“PC Jones then began to shout and swear at Omar “you think we are fucking pussies” “you fucking cunt,” “you are not so big now why are you fucking crying”. PC Jones then asked Omar “where are you from?” Omar said “Kuwait” PC Jones then shouted at him saying words to the effect of “you’re fucking here robbing people our British soldiers are getting killed in Iraq.” Omar looked terrified saying “I didn’t say anything to you.” PC Jones continued to lay into him verbally and asked him to take off his jacket and began to search him. Suddenly, there was a disturbance outside with my other colleagues. I saw PC Brown and PC White struggling to handcuff a larger built male, there was a lot of shouting. PC Jones then asked me to keep an eye on Omar, he then jumped out of the carrier to assist PC Brown and PC White who were already being assisted by other officers. I jumped out of the driver’s seat through the centre console area and joined Omar in the rear of the carrier. I then obtained his details and whilst doing this PC Brown and other officers brought this larger male to the carrier I now know this male to be Ahmed Hegazy………. He was handcuffed to the rear and appeared to be struggling as they escorted him in the carrier, he was forcibly placed on the floor of the carrier by the door area, I was at the rear of the carrier still dealing with Omar. Ahmed was shouting out loudly like he was really in pain saying “my face was squashed against the fire extinguisher” (this is the large red extinguisher that sits between the driver and passenger seat). PC Jones then said that Omar was free to leave, telling him (Omar) it was his lucky day. Omar then exited the carrier. All my colleagues were on the carrier at this point because of the large crowd that were gathering. As I was still in the back PC White jumped into the driver’s seat and I think PC Prout jumped in the operator’s seat. Everyone was at the rear. PC Jones and PC Brown were by the door holding Ahmed to the floor.”[132]He continued:
“As we were about to leave (and) the wheels had started to roll Police Sergeant Wilson who was sat on the seat by the rear door (G) immediately shouted out “stop the carrier he’s said something” indicating that another male in the crowd had said something. Once the carrier had stopped Police Sergeant Wilson and PC Kitchener jumped out and grabbed another male in the carrier. This male was placed on the single seat at the rear of the carrier. I was sat in the single seat in the middle at the time, and I was facing the rear door. Police Sergeant Wilson went over to this male who later gave his name as Basil Khan……..and began to lecture him saying words to the effect of “you fucking little cunt, you ever say one more thing and I will fucking kill you, you little shit”
. I saw Sergeant Wilson slap him once across the face with his right hand on his left cheek; Basil appeared terrified and said “I didn’t say anything.” Basil was not under arrest at this point and the carrier began to move, PC Jones then asked Sergeant Wilson “what did he do?” Sergeant Wilson responded by saying he said something as we drove off.”[133]He continued:
“PC Jones then went to the back of the carrier behind where Basil was sitting and moved a couple of public order bags which were on the floor in the centre aisle towards the rear door. I saw him approach Basil from behind taking him by surprise, grabbing him around his neck in a headlock. Basil was shouting “I can’t breathe, I can’t breathe.”
PC Jones then dragged Basil backwards still in a headlock and threw himself down backwards with Basil on top of him and still in a headlock. They landed on the public order bags that PC Jones had prepared earlier, whilst doing this he was shouting and swearing at him most of which I can’t remember. PC Jones then released the lock and stood up leaving Basil on the floor, he started to attack Basil violently pushing, kicking and driving his knees into Basil several times while Basil lay on the floor crying and screaming. I was in total shock and ashamed to be in this uniform. I could not believe what was happening in front of my eyes; I looked at the Sergeant expecting him to put a stop to this but nothing was happening. Ahmed was still shouting and making a lot of noises. PC Jones then began to ask Basil for his details. It became apparent that it was possible that he was well known on Paddington’s ground. PC Kitchener then said “Isn’t he the Basil Khan that walks around saying he owns the Edgware Road?” None of us were sure at the time. PC Jones started on Basil again saying “you think you own Edgware Road, you fucking cunt I am going to teach you a lesson you tell all of your friends.” PC Jones then threw a furore of punches, I saw him punching and punching him several times like he was punching a punch bag, this all happened whilst en route to the (police station).”[134]“We stopped at the back gate for a few minutes whilst waiting for cell space and PC Jones was still punching and driving his knees into Basil, shouting swearing and basically abusing him. I looked at Sergeant Wilson using hand signals asking him to stop this but he ignored my request. There was cell space at Paddington and we drove into the yard. PC Brown and PC White took Ahmed into custody whilst we remained on the carrier with Basil and PC Jones carried on, again punching and punching and punching Basil several times. I was then approached by Sergeant Wilson in the yard. He’d been informed that I was not happy with what went on and I told him “I’m not impressed with what went on that was way out of line”. He said “They can’t go around abusing police officers.” He then began to tell me that they were well known robbers. I informed him that I may have to speak to the governor about this and Sergeant Wilson said “you can speak to the governor if you are not happy.””[135]I shall refer to the rest of the conversation involving PC Onwugbonu and other officers presently. I turn now to the evidence given and called by the Third to Sixth Parties.

(c) Evidence given and called by the Third to Sixth Parties

[136]PC Brown gave evidence about the events on Edgware Road. He said that the TSG Carrier came across the group at Sussex Gardens, having looked through back streets. Their purpose was to be seen speaking to them, as it is part of the rationale of the TSG that one has high visibility policing. Everyone got out of the carrier except for the driver, PC Onwugbonu. There were approximately 8 youths on the pavement, but there could have been more. Ahmed Hegazy came to his attention because he thrust his hand in the front of his jeans. It was an attempt to conceal something quickly or a distraction technique. In gang dynamics they are often very well organised at avoiding the police and concealing items. In Ahmed Hegazy’s other hand he had a bottle of Vodka. His recollection is that it was a bottle of Vodka (i.e. neat and unmixed), which he thought was expensive for him. However he agreed that if anything had been drunk, it was only one nip which had been taken out of it. PC White asked Ahmed Hegazy his age, which he told the officers whereupon PC Brown emptied the contents of the bottle. He said that he was surprised that Ahmed Hegazy was under age as he was a big guy with a full beard. He went on “I told him that he would be searched. I opted for drugs. I suspected that he had a full wrap of some description. It is a red light area with lots of drug use. Nearby there is an apartment with a large car park known for drug dealing.”[137]He said that he did not know who he was when he approached him. He had not met him before and did not think that he knew him. He said that he was concerned with the hand being thrust into the waistband and the vicinity in which the officers were. As to the issue of the gestures made earlier, the intention had simply been to speak to them. He went on “I would have introduced myself with something like “what are you up to?” He said that he used “GOWISELY” which is an acronym standing for:• . Grounds – “I have seen your hands thrust into your waistband”• . Object – “Suspicion of drugs”• . W – Warrant Card if not in uniform.• . Identification – “I am PC Brown, PC 1678U”• . Station – Paddington Green.• . Entitlement – The form which has a copy underneath and gives the statutory basis for search.• . Legislation relied on – Misuse of Drugs Act 1971• . Y – “you are detained for the purposes of search.”[138]He said that the search was very brief due to his behaviour. Ahmed Hegazy said “If you search me I will draw your blood.” PC Brown said “I did not mishear him – definitely not. He interrupted me, he kept calling me a “fat cunt.” PC Brown said that he was wearing a Metropolitan Police firearms vest, when what he should have been wearing was a stab vest, which is lightweight. He was wearing the firearms vest because his stab vest had been soiled. When Ahmed Hegazy said what he did about blood, he instinctively drew out his hand cuffs and arrested him for threats to kill. He said this “I put the first cuff on and he wrenched his body away. He was like a raging bullock trying to wrench away. He was angry. His countenance was just a grimace. He referred to “get the cuffs off or I’ll fucking kill you”. He was shouting “racists” directed at us but designed to alert those around him.”[139]His aim was to isolate him from the group, and he wanted to avoid escalation because of the dynamic of the Edgware Road. He said that rival gangs would bind together against their common enemy, namely the police. He then said “I managed to handcuff him with the assistance of PC White. Unfortunately it had to be in the front stack. There were not enough of us to be able to apply rear stack. We made a quick risk assessment, and decided that a front stack was better than nothing at all. He combined escape and attack. He tried to lunge forward at one point it was very fluid and fast moving. His verbals were continuous – a barrage of abuse. He made many varied and expressive expletives and comments.”[140]He said that at this stage of his police career this kind of situation was not unusual. He had encountered this level of aggression many times, but it was particularly odd that it had escalated so quickly, which he thought was a massive overreaction to a routine polite stop. He said that Ahmed Hegazy was not keeping still, and was either yanking back or lunging forward. He said that if handcuffs are applied to the front stack it gives scope to use the hands as a weapon. He said that he caught Ahmed Hegazy’s elbow on his head, and that Ahmed Hegazy was kicking out a lot and tried to head butt him and that he was someone who knew how to use his size. He then said to him “You are under arrest. You are getting on the carrier. We are walking to the carrier” or words to that effect. He would have been shouting. He said that Ahmed Hegazy’s behaviour was certainly inciting the crowd. It seemed orchestrated, on reflection. In his view Ahmed Hegazy needed to be on the carrier so that they could control it better.[141]PC Brown then said this “I sensed they were bearing down – it’s common in this kind of situation. There were lots of mobile phones pointing directly at us and in my face.” He described how at all times PC White was with him on the other side of Ahmed Hegazy from him. He said that both of them were trying to force Ahmed Hegazy’s shoulders down. PC Brown said that he was trying to restrain Ahmed Hegazy at the front by having hold of his arms while PC White was also holding on to him. PC Brown said that he was the “contact” officer while White was the “cover” officer – i.e. one taking the lead and the other covering the leader. He said that Ahmed Hegazy was trying to break free as they walked him from outside Boots to the carrier. Then he was taken to the floor by himself, PC White and Sergeant Wilson who by this stage had joined in. He said “We had to do it to get control. If you take a man upright to a van, then he can get a purchase on the door”. He said that when Ahmed Hegazy was on the floor he screamed “The police officers are going to beat me, going to beat me.” He said that he would sue them all.[142]He said that Ahmed Hegazy’s ability to struggle was more limited by his being on the floor, but he was still struggling and offering threats. Outside the carrier, he had been able to kick out violently with his feet although he made no contact with Mr Brown with his feet. Mr White was carrying Ahmed Hegazy’s left shoulder, he was carrying Ahmed Hegazy’s right shoulder, and Sergeant Wilson was carrying the feet in an angle cross position. They managed to get him on to the carrier. He was placed on the floor inside the open sliding door. They had not dropped him, nor had they thrown him in nor had his head smashed against the fire extinguisher. The way that they put him in was closer to placing him than throwing him in.[143]His torso was by seats C and D, while his body ran at an angle from the left hand side of the driver’s seat A towards seat G on the plan. Seat G was the Sergeant’s seat. He, Mr Brown, sat on seat D having taken Ahmed Hegazy’s weight on to his leg which was a handling technique. He then sat on the seat.[144]He said that he had arrested Ahmed Hegazy the moment that he uttered the threats to him. But he went through the whole process of arrest and caution on the van. He thought that he replied “pussies” or “fucking pussies.” He arrested him for uttering a threat to kill as an instinctive reaction. He did not abuse him racially on the van. He was now less physically aggressive although his verbal aggression continued for considerably longer.[145]When the van drove away PC White was driving. PC Onwugbonu, who had driven the van on the way there, was now sitting in seat E or F. He said that PC Prout was sitting in seat B. PC Kitchener was at the rear and PC Jones was towards the rear. As the van was moving off Basil Khan came on board. PC Brown said that he was then looking after Ahmed Hegazy. He had hold of his handcuffs, and was monitoring him for spitting, asphyxia or excessive heart rate. There was no sign of any of them. He said that he never strangled him or put his knee on to his throat. Neither he nor anyone else had done that.[146]So far as Basil Khan was concerned he was aware that someone was going to come on board when the door was opened and he saw fleetingly that PC Jones had returned to the carrier with him. He said that Basil Khan seemed animated.[147]He said that the van had gone straight to the police station, and did not take a circuitous route. On arrival at the police station PC Prout would have gone to ask the desk Sergeant if there was custody space. On entry to the police station Ahmed Hegazy was subdued. That is quite common especially when one has had members of a gang looking on before. The bravado is now no longer required.[148]The allegation that he invited Ahmed Hegazy to fight one-to-one was untrue. He agreed that he had removed his ballistic vest, but that was because it was heavy and uncomfortable, as it contained ceramic plates. He had taken it off for a number of reasons, one was that he was going into the custody area so it was the logical time to remove it, the second was because he was perspiring heavily as it was hot, and the third was that bending forward with a ballistic vest is very restrictive. PC Onwugbonu was wrong to say that he had offered to fight Ahmed Hegazy. He referred to the fact that at the Crown Court trial Mr Onwugbonu accepted that it was an impression and that he could have been mistaken.[149]He was cross-examined by Ms Gerry about what had occurred on the Edgware Road. He said that what focussed his attention on Ahmed Hegazy was his thrusting his left hand inside his trousers. He agreed that he had said he was 17, but denied that he had taken out his driving licence. There were at that time no obvious signs of Ahmed Hegazy being upset. He said that he thought he had complied with the requirements for a search under Section 2 of the Police and Criminal Evidence Act1984. He had told him his name. However he told the Court in answer a question asked by me that he had not told him he was being detained at the point when he had hold of him. (At a later stage in re-examination by Mr Hardy he said that when he first started searching him, it was under the GOWISELY procedure. However he said that he could not complete it because of his behaviour. He did not get as far as explaining who he was or where he was from.)[150]He went through the lion’s share of the GOWISELY procedure. In his view you could start the search simultaneously so as to speed things up by starting the patting down as you went through the GOWISELY procedure. That accorded with his training instructions.[151]He succeeded in checking Ahmed Hegazy’s waistband. It was put to him that he began telling Ahmed Hegazy that he “needed to lose weight” and “was a fat fellow”. He denied that. He denied that Ahmed Hegazy had said anything to him about getting more girls than he did. In answer to the Court he said that he agreed that he had not told Ahmed Hegazy he was being detained at the point where he had hold of him. He said that Ahmed Hegazy pulled his arm away when he threatened to draw blood. It was suggested to him that he had said to Hegazy “You just said that if you search me I’ll draw your blood.” He said that was entirely untrue. He had interpreted the words used by Hegazy as a threat to kill. He had had regard to his manner and demeanour, and thought it was an articulate threat from one so young. He thought that he had reasonable grounds to arrest him. He agreed that the resistance by Ahmed Hegazy only occurred after he had started to arrest him. Before that point he had simply been pushing away his hands.[152]He was asked about why he had handcuffed Ahmed Hegazy’s hands in the front stack position. He had said that one does that either when a person is compliant or when one has no option. He said that in this case he had difficulty in placing handcuffs on him. He agreed that he did get the handcuffs on successfully. He would have had help from PC White. It was pointed out to him that he did not mention that in his notebook. He said that once Ahmed Hegazy had the handcuffs on, he was still standing. Both PC White and he had a tight grip of his upper arms. He did not accept that bruising would have occurred at that stage. He was definite that Ahmed Hegazy had struck his (PC Brown’s) head, but agreed that he had received no injury. He agreed that in the TSG incident report compiled with respect to this, while it refers to an attempt to strike PC Brown, that was not a reference to Ahmed Hegazy’s elbow but to a head butt. He agreed that they used reasonable force to get Ahmed Hegazy to the carrier, and that he had hold of the upper parts of Ahmed Hegazy’s arm. He said that Sergeant Wilson helped PC White and himself get Ahmed Hegazy to the floor, so as to establish control. He said that it had a twofold reason: both to protect himself and the other officers from injury. When he was lifted and put into the van, Sergeant Wilson had his legs under control. He said that Ahmed Hegazy had his face up looking towards PC Brown.[153]On board the carrier PC Brown said that he reiterated the arrests, and with cautions, for threats to kill. He did not call him a “fucking Arab.” He said that Ahmed Hegazy was not crying out in any pain at all and that if a man is face up it is possible to apply not much ankle pressure to secure his legs. He denied taking off his vest and offering to have a one-to-one fight with Ahmed Hegazy. He said that that did not happen but that what happened was that Ahmed Hegazy asked to take his handcuffs off. He said that Ahmed Hegazy was not in pain. He did not notice any injuries. He noticed no reddening whatever.[154]He was cross-examined by Ms Kaufmann QC. He said that he did not remember briefings about problems with either Basil Khan or Ahmed Hegazy. He remembered that there were problems on the Edgware Road, but not the names, and that when he found out Ahmed Hegazy’s name he did not recall any briefings. That was also the position he put forward when he was interviewed by the DPS. He was asked to explain how, if he could not recall any specific names 11 months after the incident, yet he could put it in his witness statement compiled in March 2015. He said he had just put in the names. He said he had learnt the information at the criminal trial.[155]He suggested that PC Onwugbonu should have assisted him. However, he agreed that he had said in interview under caution that it was common for the driver to remain on the vehicle unless required on the street. He agreed with Ms Kaufmann that there were six officers on the street three of whom were getting Ahmed Hegazy into the vehicle. He said that he was almost certain that Jones was on the carrier and was dealing with Omar Mohidin.[156]He was then asked about the incident with Basil Khan. He said that as the van was moving off he heard someone approach the carrier, and heard words to the effect “I’ll fucking kill you”. He was aware of a presence near the window. He could not say if he heard it first or saw him first. He was aware that officers got out of the carrier and thought that he had fleetingly seen Basil Khan come to the carrier. He did not hear Basil Khan being arrested and did not hear Basil Khan saying anything about “I’m going to stick you…” He said that when the door was open, there was a lot of shouting going on. He did hear him shout “I’m going to fucking kill you.” He said that Basil Khan was resistant to attempts to restrain him. He was insistent that he could see that. He said that Basil Khan was as aggressive as Ahmed Hegazy, which is what he had also noted in his notebook on the evening in question. He said that he did not see Basil Khan strike Jones in his face with his elbow. But he did hear a loud verbal shout “He’s just fucking hit me.” He said that it was their training to shout out so that others can assist. He said that others went and assisted. He agreed that the shout for assistance was not mentioned in the note written that night.[157]It was pointed out to him by Ms Gerry that in his witness statement PC Brown included the following when describing the taking of Ahmed Hegazy to the carrier. “33…His behaviour was more akin to a person who had just been caught in the act of committing a very serious crime and was trying to escape. Of course, I now know that he was in possession of a stolen phone and was on licence from prison at the time, which could explain his behaviour but I didn’t know this during the arrest.” At paragraph 66 of his witness statement he then asserted that “Mr Ahmed Hegazy was on licence at the time of his arrest. He had pleaded guilty to an attempted robbery some months prior. Had Mr Ahmed Hegazy been charged and found guilty of the crimes for which I had arrested him….., he would have been recalled to prison. Mr Ahmed Hegazy had a desperate need to avoid being charged.” Having referred to the fact that he was in possession of a stolen phone, he then went on “It is clear that he had a motive to adopt PC Onwugbonu’s malicious complaint.”[158]It was pointed out to him by Ms Gerry and by the Court that as Ahmed Hegazy was only 17 at the time, there could be no question of him being on licence from prison. PC Brown then asserted that it could be because he was on a suspended sentence. It was then pointed out to him again that as he was only 17 that was impossible, and that in fact he was on a referral order at the time.[159]I have already noted the concession made in re-examination (see paragraph 149).[160]PC Mark Jones gave evidence that his intention was to have a general chat with the youths about their behaviour when they caught up with them, in the tone he was using in the witness box. He started to walk up to Omar Mohidin who was the first person he had seen gesturing and mouthing in the Edgware Road. He said that he walked up to Omar Mohidin to start to speak to him. He said “As I approached he mouthed “Fucking wanker” under his breath. He had now moved his glasses up to on top of his head. His eyes appeared bloodshot. There was a peculiar smell coming from his clothing. It was cannabis. I then decided to search him. He said that he started to go through the GOWISELY procedure, but did not finish it as he said he wished to be searched in the carrier. He said he was 19 years old. We walked to the carrier. I had not arrested or handcuffed him. We got onto the carrier. Before I searched him I went through the GO WISELY procedure. I then commenced a search.” (There is no record kept of this search).[161]He went on “As I was searching him I became aware of a struggle outside the carrier. I heard and saw it. I asked PC Onwugbonu to come through from the driver’s seat to keep an eye on Omar Mohidin. During the GOWISELY procedure Omar Mohidin had been on seat F. When I started the search he was standing because I asked him to do so. At this stage he was very apologetic for his behaviour. I did have a conversation with him about his behaviour – he apologised.” There is no mention in his witness statement or notebook about this conversation with him about his behaviour. PC Jones said that Omar Mohidin refused to give his details. He said he was not abusive or aggressive to Omar Mohidin nor did he force him to stand up and down repeatedly which was untrue.[162]He said that outside the van Ahmed Hegazy caught his attention. He was with PC Brown and PC White and was generally swearing saying “Fucking racists you’re going to beat me” and “Take these cuffs off or I’ll take on you cunts.” He went on that he remembered that Ahmed Hegazy was being carried face down with his limbs thrashing about. He said that he opened the door. The sliding doors opened but he had no need to get out. He said that when Ahmed Hegazy was brought onto the carrier he took Omar Mohidin off the back of the carrier through the rear door. He said that he told him, although it was not in his notebook, that he should just think about his behaviour. He did so as part of a general chat. He said that he did not swear at him or call him a schoolboy or a pussy. He could recall no conversation about his country of origin. He said that he had no colleague serving at that time in Iraq and was unaware of anyone who had done so. He said he was then in seat H. Ahmed Hegazy was between seats A, B, C and D, and was very loud and vociferous, shouting “Take these cuffs off. I’ll take on you cunts.”[163]He went on “As we drove off I saw Basil Khan approach the left hand side of the carrier with clenched fists down by his side. He had an angry, menacing grimace on his face. I could not hear him say anything. He mouthed the words “I will fucking kill you.” It was Sergeant Wilson whom he was addressing. Sergeant Wilson opened the door and I followed him out. We went to speak to him about his behaviour. Sergeant Wilson said “You were warned to move away but threatened me instead.” He sneered to me and said “I’m going to stick you as well, I’m going to put a knife in you and then I’m going to watch you go cold as the blood runs away.”[164]PC Jones said that it was graphic and that he was shocked. He took it seriously given the look on Basil Khan’s face. He could not recall what power he was using to justify taking hold of him. The others in the group were moving closer to them and he wanted him on the carrier as soon as he could. He went on:
“As Basil Khan was forced up into the carrier, I motioned him to sit at the rear of the carrier. He then spun and hit me with his right elbow in my right cheek.”
He said that he was saying that Basil Khan struck him deliberately. He said that he reacted by shouting straight away “He’s just fucking hit me.” He said “I would not normally swear as a police officer but I have done so before.”[165]That was as far as Police Constable Jones got before the luncheon adjournment on the day he was giving evidence. He never returned to Court. It is therefore right that I should set out what was in his notebook to which he had already had permission from the Court to refer. I set out what he said further about Basil Khan. Having referred to him shouting out “He’s just fucking hit me” PC Jones went on his notebook to say “I then grabbed Basil Khan from behind by the top of his shoulders and forced him heavily on to the floor towards the rear of the carrier by the equipment rack. It was an extremely confined space and it was proving difficult to handcuff him. I eventually placed him in handcuffs as he was lying over some equipment holdalls. He was complaining he couldn’t breathe, so I sat him up and he just looked at the floor as we drove to (the police station).”[166]In his witness statement he included the following further details about what happened at this stage. “63. I handcuffed Mr Basil Khan in the rear “back-to-back” position and then lifted him up on to his knees so I could do a pat-down search of him just to satisfy myself that he did not have any weapons on him. He was still shouting and swearing and being abusive and I was aware that Ahmed Hegazy was still calling us “racist cunts” and similar words of abuse from the front of the carrier where PC Brown was dealing with him.” “64. When I patted Mr Basil Khan down, I found a wallet. At some stage I gave the wallet to PC Kitchener, but I cannot remember precisely when. PC Kitchener did say “This is Basil Khan, he thinks he owns the Edgware Road” and by this I thought he was referring to a report about Basil Khan in one of the briefing packs that I had previously mentioned.”[167]That is a reference to something which appears in a criminal intelligence record dated 11 May 2007. In that record it states that Basil Khan was stopped and searched on that date and that he was seen walking down the Edgware Road with his fist clenched and chest out. He was said to have been walking in a straight line so that members of the public had to get out of his way. It states that when asked to stop he turned in the opposite direction and tried to walk off. He was searched but nothing was found on him. And then it continues “when stopped asked why he was walking the way he was, he stated “He owns Edgware Road and he will walk how he likes”. He was aggressive and had a bad attitude.”[168]PC Jones did recall that Basil Khan said he was having problems breathing and he realised that his neck was on a helmet. He helped him up as quickly as he could and then restricted his movement by holding onto his handcuffs. He said that he told Basil Khan that he was being arrested for threats to kill and assault on police and cautioned him. He said that Basil Khan became less vocal and calmer once he was upright in the back of the carrier. I shall refer in due course to the events when the van reached the police station.[169]In his evidence PC Steven White said that when the carrier stopped, he saw through the window or door (he could not remember which) Ahmed Hegazy put his hand in his waist band. He thought that PC Brown was still in the van at that point. He described PC Brown getting out of the van before him with PC Brown as the “contact” and him being the “cover”. He said that his intention as he drew up in the carrier had just been to speak to the individuals concerned in a firm clear voice much like the one he was using in Court. He said that Ahmed Hegazy was holding a large bottle of Smirnoff Ice. He took it from Ahmed Hegazy’s hand as it could have been used as a weapon. He asked him his age, rather than his name, because he knew the group was young. Hegazy produced his original driving licence. PC White put the bottle on a low wall out of reach and then PC Brown said what he’d seen with the hand in the waistband, and said that Hegazy would be detained for a search under Section 23 of the Act. He said that Ahmed Hegazy very quickly said “Fat cunt,” obviously directed at PC Brown. Ahmed Hegazy’s demeanour was unhappy and he clearly did not want to be stopped. He repeated his abuse. PC White had Ahmed Hegazy’s wallet in his hand which is where the driving licence was. He thought it had been produced from the back pocket. PC Brown commenced a search, but he could not remember the exact sequence. He remembered most of the requirements for a search being complied with, but given how the circumstances deteriorated further it would have been difficult to complete the mnemonic. In answer to the Court he said that the procedure GOWISELY would not necessarily be given in that order and he had never carried it out in that sequence. In his view the most important thing to do was to tell the person that he was being detained, what one was searching for, and why.[170]He heard the phrase “If you search me, I’ll draw blood," said aggressively. PC Brown said “Did you threaten to draw my blood?” and arrested him for threats to kill. Ahmed Hegazy was not cautioned, as it was not practicable because his resistance was immediate. He continued:
“I tried to take hold of his upper arm. As the handcuffs were applied he was struggling. He was not going to be ‘coming quietly’ ”
. He said words like “I’ll fucking kill you.” He did not recall him saying anything about the attitude of the police officers at that point. He did say “Fucking racists, you’re racist, they’re going to beat me” after he had been taken to the ground. PC White took him to the ground with his right leg. He said that he had hold of him, and that Mr Brown almost certainly did so too and that his aim was to put him on the ground so as to avoid injury. Others standing around were holding mobile phones, apparently filming. He said he was uncomfortable at how close they were. But he went on to say “I was used to being filmed. I was aware of an officer (whom he named): he was convicted of using certain language to a prisoner which was caught on mobile phone. I was told early in my service to imagine that I had a documentary crew with me at all times. I assumed that everything that I was saying or doing was being recorded.”[171]He said that before Ahmed Hegazy went to the ground he had adopted a fighting stance like a boxer with his feet in a fighting stance. When Hegazy was on the floor he only had a clear memory of him waving his arms around and of himself trying to take control of Ahmed Hegazy’s upper arm. He could not recall if he was on his back or his front. Ahmed Hegazy’s lower limbs were flailing about. He said that to get him on the van they had help from Sergeant Wilson. He was too heavy to have been thrown in, but was placed in. Ahmed Hegazy said something about “Take these cuffs off, I’ll fucking kill you. I’ll take you on.” Once Ahmed Hegazy was lifted he (White) was hit squarely in the chest. He thought that occurred after Hegazy had been put in the carrier and he had moved away.[172]He said that once he had been placed on the floor, he (White) was asked to drive the van. He stepped over Hegazy without contact. That was the last time that he had any dealings with him. PC Prout was sitting next to him in the operator’s seat. He drove the van straight to the police station without any detours.[173]He was cross examined by Ms Gerry. He said that at Edgware Road, his attention was drawn to Ahmed Hegazy because of his size and the fact that he was carrying a bottle. He said that in his mind he thought that he may have secreted something but didn’t think that he said anything about it. He was sure that he was carrying Smirnoff Ice rather than Smirnoff vodka. He said that he was not aggressive as they approached him, and did not object to handing over the bottle. He said after that he was bemused as to how things deteriorated. He did not think that the GOWISELY procedure had been completed and he pointed out that his recollection was that the PACE code says “where practicable.” He said that he may well have said part of the GOWISELY. After Hegazy had said “you fat cunt” he may well have said to him “calm down you are going to be searched.” PC Brown said that he was going to be searched for drugs and that he was being detained. It is wrong to say that he did not say that he was being detained. It is possible that he did not say his name and police station. It was suggested to him that Hegazy was not being violent and aggressive at this point, which he did not accept. It was then suggested to him that it was not Hegazy who had called Brown “a fat cunt” but rather PC Brown who called Ahmed Ahmed Hegazy fat. His answer was as follows according to my notes “Ludicrous. I had worked with him for two years and had never heard him speak to someone like that.”[174]He agreed that when the handcuffs were put on he was under the impression that only one was applied but he could be wrong. He said that one applied handcuffs in whatever way one could, but agreed that using the rear stack method was better. He said it depended on the circumstances. He denied that the front stack was used because Ahmed Hegazy was compliant, and said that he was resisting throughout. He agreed that the search had already started when he said “if you search me I will draw blood.” He was not compliant and was taken to the floor so that they could put him on the carrier.[175]He said that Ahmed Hegazy had bruising to his upper arm at some point. He did not know whether Sergeant Wilson came to assist before Ahmed Hegazy was taken to the ground or afterwards. He thought that PC Brown and he had control of the upper part of Ahmed Hegazy, and although he could not be certain it was him at the head, he thought he was. He had no memory of seeing PC Brown being elbowed in the head by Ahmed Hegazy. He agreed that there was nothing in his notebook about Brown being elbowed in the head by Ahmed Hegazy. He denied trying to strangle Ahmed Hegazy. He said that that suggestion had never been made before Ahmed Hegazy gave evidence on the first day of the trial. It was suggested to him that he had punched Hegazy in the face with his right hand. He said that he had not, and had he done so, the medical officer would have found some marks on his hand.[176]The next witness to give evidence about the incident in Edgware Road was Sergeant Wilson. He said that as the van stopped in the junction of Sussex Gardens and Edgware Road he was next to the door and it was quite likely that he opened the door. But others got out before him, which was normal because it is the role of a TSG sergeant to stand back and assess the situation. He said that he approached one youth to ask about their movements and what they were up to. He said that he then became aware of PCs Brown and White having difficulties with Ahmed Hegazy. They were almost at the carrier before Sergeant Wilson became aware and got involved. He heard raised voices but did not know what was said. He said that they had almost got to the carrier when he saw Ahmed Hegazy struggling and swinging his arms about and he thought that he had made an attempt to hit PC Brown. He lunged forwards with his hands in handcuffs. He said that he moved forward intending to assist them. He heard him shout “you’re racists” and he lunged forward with his head towards Police Constable Brown. Sergeant Wilson said that he put his hands around the back of Ahmed Hegazy’s head, which is a recognised technique to pull someone forward off balance. He assisted in getting him to the floor. Sergeant Wilson thought that it was him pushing them forward that did it, and that he did not realise that he also been tripped by the others; it was a collective effort. Ahmed Hegazy was kicking out. He said that he leaned on his legs to prevent him from doing so.[177]There was a lot of shouting from the rest of the group, but he could not really say what they said. PC Prout and PC Kitchener were standing behind Sergeant Wilson between him and the group of youths. He referred to his notebook, where he had recorded that evening that “the group of youths ran towards us and I feared we were about to be attacked. He was conscious that he was vulnerable. Ahmed Hegazy was saying “fucking racists” and “look they are going to beat me.” Hegazy was more face down than anything else. Otherwise Sergeant Wilson could not have folded his legs behind. He was lying a bit on his left. Sergeant Wilson said that they did not throw him into the van or smash his head into the extinguisher. As far as he recalled Hegazy was partly on his left hand side and partly face down. He said that as he got him on the van he lost control of his legs at one point and he kicked out and caught Sergeant Wilson on the right knee. However Sergeant Wilson did not see him strike out at anybody else. It was not safe to put Ahmed Hegazy in a seat as he was behaving in a violent manner. He was big and struggling, and that anyone of any size is difficult to contain if they are struggling. Sergeant Wilson said that he wanted to leave the scene as soon as possible.[178]He said that the van could not have moved more than a couple of feet, with the crowd continuing to shout and gesture. One stood out from the crowd and approached very close and with a kind of snarling look on his face, saying “I’ll fucking kill you,” looking at where I was. He could not say if he saw it or heard it. He was then joined by PC Jones on the footway, and the two of them got hold of Basil Khan with Sergeant Wilson having his right arm and Jones his left arm. Sergeant Wilson said that he told Basil Khan “You have been warned to move away but chose to threaten me instead.” He said that Basil Khan said to Jones. “I’m going to stick you as well. I am going to watch you go cold as your blood drains away.” Sergeant Wilson went on “I recorded those as his exact words. That is what I believe he said.”[179]However he said that he did not feel comfortable in arresting and cautioning him before putting him on the van, because the crowd were there and he wanted to get away as soon as possible. They had to get him in over Ahmed Hegazy. Basil Khan stepped up, Mr Jones followed him, Sergeant Wilson got back in and slammed the door shut and said “let’s go.” Sergeant Wilson said that he would have expected Police Constable Jones to conduct the arrest on the way back to the police station. It would be normal to let the police constable make the arrest because the Sergeant’s supervision may be needed elsewhere. He said that all he heard Jones say was “he’s just fucking hit me.” He did not remember reacting. He had no need to intervene at that point.[180]Ahmed Hegazy was on the floor and PC Kitchener was sitting in the seat behind Sgt Wilson’s. There would have been six or seven kit bags, helmets, coats etc on the floor. They should have been kept in the back but that is often where one puts them. He denied ever slapping or abusing Basil Khan, which he said just did not happen. He never recalled Basil Khan sitting in any seat. He knew he was behind him somewhere, and he presumed that Jones had “taken him down”. Normally one would put the prisoner on the seat opposite his (i.e. seat E) where PC Onwugbonu was. He presumed that Jones had taken him to the floor. He saw and heard no abuse of prisoners. When asked by the court, he said that he had spoken to a youth about conduct by asking him “what he was up to” which he said “is my way of doing it.” He said the reason for the search became superfluous in the light of what then happened.[181]When cross examined by Ms Gerry he could not remember seeing Hegazy being handcuffed. He accepted that he had said in evidence at the criminal trial that he first heard it at the de-briefing which took place afterwards. He accepted that in his notebook that evening the description of the events were “Suspect/persons concerned: Basil Khan/Ahmed Hegazy. Arrest/process/incident: Threats to kill, handling stolen goods.” In other words there was no mention of the assault on a police constable. He could not say if he had heard PC Brown arrest Hegazy inside the carrier for threats to kill. He said that had Hegazy been on his back he could not have restrained him in the way that he did. He used an ankle cross position.[182]In evidence he said that at that time he did not know who Ahmed Hegazy was, although he knew who Basil Khan was. He accepted to Ms Gerry that his witness statement was untrue at paragraph 39 when it referred to a conversation he later had with PC Onwugbonu where he said this. “I explained to PC Onwugbonu that the detainees were suspected of being local robbers and that their behaviour had to be dealt with.”[183]He was then cross examined by Ms Kaufmann QC. He said that when Basil Khan said “I am going to fucking kill you” his view was that he would arrest him for a breach of Section 4 of the Public Order Act 1986. His concern was about incitement of the crowd. He said he was not really sure about what he was going to arrest him for, but he was not going to arrest him for uttering threats to kill. He had no idea that PC Jones was getting off with him until he got out of the van. Basil Khan was not swinging or kicking out violently but had a sneering aggressive attitude. He was not struggling. Basil Khan addressed his next remark to Jones. His demeanour was just nasty and snarling, with his fists clenched at his side. Sergeant Wilson thought it seemed calculated. Although he had been threatened many times, he said there was a cold nasty way Basil Khan said it, which he found quite frightening. He then said that once he got back into the carrier, he let Basil Khan be, and he did not check him for weapons. He agreed that although he had made a threat to stab the officer, Sergeant Wilson had not warned anybody about that. He said that was because PC Jones knew what he was dealing with and PCs Onwugbonu and Kitchener were also there.[184]Ms Kaufmann pointed out to him that in fact he sat straight back down. He agreed that it sounded “crazy” that he had not warned anyone. Ms Kaufmann asked Sergeant Wilson about the witness statement he had made for the purposes of a claim in the employment tribunal. In his complaint made in 2010, he described the incident with Basil Khan in the following terms:
“As we were pulling away, another of the youths, who I now know to be Basil Khan, then came up to the side of the carrier. He was acting in a threatening manner and I told Steve (White) to stop and Mark (Jones) and I got out. I said to Basil Khan “you have been told to go and you chose to come back and threaten us.”
He said to us “I am going to stab you and make your blood run away.” He said that he took the threat seriously. Ms Kaufmann pointed out that the statement suggested that the threat was made to both of them, and was in different words from those he had stated before. Sergeant Wilson agreed with that. He also agreed that when he was interviewed under caution on 31 March 2008, he said that he could not say whether or not PC Jones had witnessed the words “I will fucking kill you” said to Sergeant Wilson. He said that he did not know whether he had passed the information to PC Jones. He did not know whether he used those specific words or whether he might just have said “he said something” and said that he could not remember. He said that the arrest for “threats to kill” related to the comment he made to the two of them when they were walking him back to the van. He thought that was what PC Jones had arrested him for and not the original comments towards Sergeant Wilson. He told Ms Kaufmann that he did not tell PC Jones to arrest Basil Khan for what he had said to him (Wilson).[185]He agreed with Ms Kaufmann that it would not have been appropriate to arrest him for uttering threats to kill. He had not told PC Jones to arrest him. He thought that if an offence had been committed it was probably a public order offence. He said it was not his decision to arrest him for uttering a threat to kill and that he would not have arrested him for that. He told Ms Kaufmann, as he had told DPS interview under caution, that on reflection what had been said to PC Jones by Basil Khan was a ridiculous statement.[186]He reiterated that he had heard someone say “he’s just fucking hit me.” He could not say if that was before or after he had sat down however he also agreed with Ms Kaufmann that he did nothing when he heard this, because he was dealing with Ahmed Hegazy. He agreed with Ms Kaufmann that he had reacted to what Basil Khan had done outside and was angry when he came up to the carrier and he agreed that he was not going to have him abusing him again. He agreed with Ms Kaufmann that he did not have him searched, and then said “I could hear things happening but was not interested in what they were.”[187]He was aware that Basil Khan was not sitting in the seat F. At that time, he thought everything was under control. Ms Kaufmann pointed out to him that Basil Khan (and of course PC Jones) both said that Basil Khan was complaining that he could not breathe. Sergeant Wilson said that he never heard that. He said he did hear that the person they were dealing with was Basil Khan and he could have heard someone making reference to him owning the Edgware Road. He knew he had read that before. He described himself as being “angry at a rude disrespectful schoolboy.” However he denied having a go at him, swearing at him or abusing him. When it was put to him that he had acted like an angry parent and slapped him round the face, he said “absolutely not.” It was suggested to him that he was saying that he had heard or seen nothing wrong going on as to protect PC Jones. His answer was “No. This violent young man was not hit deliberately. He swung his elbow and it struck him.”[188]He agreed with Ms Kaufmann that when he heard the words “he’s fucking hit me” he did nothing. In answer to the court he agreed that Basil Khan was left in the van at the Police Station for about 20 minutes kneeling in handcuffs. He said that he was being looked after by other officers, and that that was the assessment made by whoever was dealing with him.[189]The next witness to deal with the events on the Edgware Road was PC Giles Edward Kitchener. He had been with the TSG for about two weeks having done some training beforehand. They operated a “buddy” system and PC White was his buddy. He said that when the van pulled up at Sussex Gardens he could see Ahmed Hegazy and recognised him from the earlier incident. He said he was putting his hands in his waistband and looked to be concealing something down his trousers. He was aware from the briefings he had read of the drug problems in the area, which was “part of my decision making.” He approached Ahmed (the other Ahmed not Ahmed Hegazy).It was a stop and search but it was a very civil and polite stop. It was the polar opposite from how Ahmed Hegazy was getting on with PC Brown and PC White. He said that he could see that Ahmed Hegazy was hunched up and leaning forward, and he heard him call PC Brown “a fat cunt”. He did not remember PC Brown’s response, but he seemed surprised. Ahmed Hegazy said “if you search me I’ll draw blood”.[190]PC Brown put Ahmed Hegazy in handcuffs and then PCs Brown and White took him to the van. He said that Ahmed Hegazy was cooperative at first but as they got closer to the carrier he was moving his arms and shoulders and got more violent. He saw the officers take Ahmed Hegazy to the ground. One of the crowd went round to his unprotected rear. That is when he finished his stop and search of Ahmed and went over and stood facing the youths with PC Prout. He said that three things caught his eye: first one person poked PC Prout in the chest: secondly he saw a number of mobile phones come out which told him that they were being filmed: and third he was told repeatedly that “Allah will judge you.”[191]He then told the crowd to disperse and go home. PC Prout got into the front seat and he could see Ahmed Hegazy inside the sliding door. He went to the back door. Having got into the van and the van just having set off, he saw a pair of hands come up to the Sergeant’s window and make a V sign with both hands. He had not put this in his notebook because it was not part of the evidence for the offences in question. He agreed that he had said in interview to the DPS that what Basil Khan had done was “had his fingers up at the window and was shouting at us.” He also said that he did not know why Ahmed Hegazy had been brought on the carrier. He explained this by saying that he had been panicked by the DPS interview which had been his first. It was not in his notebook. His training was “if it’s not written down it didn’t happen” and he tried clumsily to retract it.[192]When Basil Khan was brought on to the carrier Sergeant Wilson said “arrest him.” He stood up from his seat (H and I) but could not get out. Basil Khan was in front of PC Jones going to the back of the bus. He then went on “I was looking at the crowd outside. I heard Jones say “he’s just fucking hit me.” I looked straight up. I saw Basil Khan’s elbow raised and PC Jones’ head go back. I was under no illusions that he had just been hit. This happened by the Sergeant’s seat (G). PC Jones was level with the Sergeant’s and Basil Khan was level with the back of the seat. I did not see Sergeant Wilson slap Basil Khan.”[193]He said that then the van moved off. PC Jones took hold of Basil Khan. They may have tripped over Ahmed Hegazy’s legs, and they fell on to the bags at the back. He said he never heard PC Brown offer a one to one fight with Ahmed Hegazy. He said nothing racist and heard nothing racist and had he done so he would have raised it with the Sergeant. He said PC Jones and PC Basil Khan were lying on the bags, which were of course immediately to his right as he was in seats H and I. He said there was nothing he could have done to assist PC Jones. PC Jones then brought Basil Khan up to a kneeling position and PC Jones sat down opposite. PC Kitchener said that he felt that it was justified at the time, as PC Jones had arrested Basil Khan at this point for threats to kill and assaults on the police. As he was under arrest and Basil Khan had not yet been searched PC Kitchener thought it was justified. He did not see Jones kick or punch Basil Khan. He said that on the way back to the Police Station Jones was able to search Basil Khan and handed items to PC Kitchener, who found Basil Khan’s driving licence. When he saw the name written down (at first he said when he saw “the font”) it recalled the memory of the Metbats briefing he had read. He then said “Isn’t this the Basil Khan who goes around saying that he owns the Edgware Road?” PC Kitchener said this about that statement of his “it was an announcement – to see if anybody else had anything to remember.”[194]He was cross examined by Ms Gerry. He said that he did hear Ahmed Hegazy say “fat cunt” and “if you search me I’ll draw blood.” He had no recollection of Ahmed Hegazy being arrested for making threats to kill, although his witness statement at paragraph 46 said that he did. He confirmed in the witness box that he did not hear it. He said it was an error in his witness statement and he must have thought at the time that he had heard it. He did not hear Ahmed Hegazy shout “I will kill you” and he did not see him try to hit PC Brown. Hegazy was not crying in pain. He was adamant that Brown did not offer to fight him.[195]When cross examined by Ms Kaufmann QC he said that he saw the man who was arrested (i.e. Basil Khan) bang on the window. He thought he was going to be arrested for his hand gestures. He accepted that in his notebook, written the same night, he had not referred to Basil Khan saying anything. He said that he heard nothing being said outside the carrier or being said by Basil Khan. When asked about his making of notes, he agreed that what the individual had done and the reasons for his arrest were important parts of the narrative. He said that the only things that he had seen which would have justified an arrest were Basil Khan making V signs.[196]He was asked about the entry in his notebook which reads as follows:
“I was looking out of the window at the group still loitering at the window and as I looked back I saw PC Jones recoil as if he had been struck and wince in momentary pain. His head rocked back and at that time he was following Basil Khan through the carrier. PC Jones said “he’s just fucking hit me!””
He agreed that it made no reference to Basil Khan using his elbow. He said that was an omission and that it had happened. He was asked about his interview under caution on 26 March 2008, where he described Basil Khan’s arrest. He said that he had assumed that Basil Khan was under arrest for assaulting a police officer because PC Jones has shouted “he’s just fucking hit me.” He said then that that had happened as Basil Khan got on the carrier, and as he had written in his notebook, he saw PC Jones’ head go back as if he had been struck and he then said “he’s just fucking hit me.” He agreed that he had not referred to seeing the use of the elbow, but insisted that he had actually done so.[197]He was then asked about what happened between Basil Khan and PC Jones at the rear of the carrier. He said that they had fallen into the area between the seats having tripped over Ahmed Hegazy’s legs. They then landed on the bags at the back of the carrier. It was pointed out to him that in his notebook he said “PC Jones then took Basil to the only available space on the carrier which was at the back. PC Jones had then handcuffed Basil Khan and arrested him for threatening to kill him and assault on police. ” As was pointed out to him, the only available seat was seat F. However PC Kitchener said that he had not been taken to a seat. It was then pointed out to him that he had given a very different account in his interview under caution. In that interview in March 2008, he said that Basil Khan had got into the back seat on the carrier (i.e. seat F) and was sitting down. He could not recall whether he had been sitting down for the entire journey, but when asked for further details said this “He couldn’t have walked anywhere, ……… .no I don’t recall that he moved at all.” He was asked in the interview about where PC Jones had gone to, and said that PC Jones could have been sitting next to himself (i.e. on the other side of the aisle). He did not recall whether or not he did so.[198]He was then asked this question in the interview “you have seen the nature of the allegations made by Basil Khan specifically, in that PC Jones grabbed him around the neck, dragged him, if you like, to the back of the carrier where he had organised some kit bags which he could land on and punched and kicked him and kneed him in the face and body; you have seen that?” Having said that he had seen the allegation, he said that that allegation was not true, and that nothing of that nature occurred. He said that he was sitting opposite Basil Khan for the entire journey back to Paddington, and that he did not recall Basil Khan moving. He said that Basil Khan did not shout in pain and did not clap his hands because he could not breathe. He said “that didn’t happen, and I certainly don’t recall anything like it, even clapping his hands if you misunderstood or misheard something, nothing like that happened.”[199]He was asked about how he could have said all of those things in interview when his evidence to the court was that Basil Khan had not been sitting down but had been put on the floor. He said this “I got myself in a complete muddle. I said things that were not true. I made a tremendous mistake.” He said that nothing had happened in the back of the van. He also said that Sergeant Wilson had never slapped Basil Khan in the face, and had not been in the seat where he was able to do so. He also said that Jones was perched on his seat. Basil Khan was handcuffed behind him before Jones got up off him and brought him up to the kneeling position. It was appropriate for him to remain at the back of the van on the floor. However he told the court in answer to its question that it would have been better to let him sit down.[200]He said that after they had arrived at the police station yard, and Basil Khan had been patted down, he was made to kneel again in handcuffs and left there for 20 minutes. At the police station he did not say anything about having a child in custody. He did not know his age. He had thought he was older from his age and demeanour.[201]In cross examination by Mr Beggs QC he said that he would make notes of the evidence where he had to describe any use of force by him or actions he had undertaken, or events he had witnessed. He was then asked about how long it took from Basil Khan being brought on to the bus and being on the floor with PC Jones, and he said that was a matter of seconds. He said that there was nothing for him to cover up, and the evidence was what he had sworn was the truth.[202]The evidence of PC Simon Niall Prout was that upon arrival at the Sussex Gardens junction with Edgware Road, as he got out of the carrier (he being the operator in the passenger seat) he became aware that Sergeant Wilson was talking to a male next to the railings. He took over, as it was not usual for a Sergeant to do a stop. He said that to begin with the person that he was talking to was affable in the extreme. He became aware of a commotion to his right with raised voices. He looked over and saw a large male – Ahmed Hegazy– cuffed in a front stack position. He saw him lunge towards PC Brown and his head snap back. He was unable to say if that was because the strike had made contact or because PC Brown was pulling his head out of the way. He thought that PC White was also with PC Brown. He said that events turned into a bit of a fracas. Brown and White were attempting to take Hegazy in the direction of the police carrier. He said that the demeanour of the group had now become very confrontational. He contrasted that with the demeanour of the man to whom he had been speaking which was anything but confrontational. He said that after the incident between Ahmed Hegazy and PC Brown, Hegazy was put to the floor. PC Prout moved across with PC Brown and PC White to his back so that he was creating a barrier between them and the group. He said that there were now gestures being made at the other officers and at PC Prout. He was told repeatedly by one male that Allah would judge him. On two occasions he said that he had to push a male back to keep a safe distance between himself and his colleagues who were behind him. He said that he was saying “Stay back” and “Don’t get involved”. He had a recollection that several people were holding up mobile phones, which he presumed was to film them.[203]He then described getting into the van, being the last person to get onto the carrier. He could hear the sounds of a struggle behind him. However there was nothing untoward as they began to pull away. The van stopped almost immediately and he heard the door slide open. He heard PC Jones’s voice and he was aware that he was detaining somebody. He heard nothing abusive. In his notebook written that evening he recorded the following:
“As I turned in the seat I saw he was detaining a …youth whom I now know as Basil Khan. He was placed on the carrier and moved to a seat at the rear; I became aware that he had been arrested for a public order offence. I then continued to (illegible) my radio and to contact the local custody. As I did so I heard struggling from the rear of the carrier and heard PC Jones saying “stop struggling, sit still!”
[204]When he was cross examined by Ms Gerry on behalf of Ahmed Hegazy he agreed that his notebook did not record him saying that PC Brown’s head snapped back as a result of any action by Ahmed Hegazy. He did remember Hegazy saying “they are all racists” He agreed with Ms Gerry that if he had heard any threats to kill or Hegazy calling Brown a cunt, then he would have noted it in his notebook. He said he did not hear that happen. Having looked at his notebook and then at his interview under caution, he agreed that he was not told what anyone had been arrested for. He said that it would not have been proper to put in his notebook what others said about things that he had not remembered seeing or hearing.[205]He was cross examined by Ms Kaufmann QC. He said that he had assumed that Basil Khan was put in a seat, but that he had heard the words “sit still”.[206]In re-examination he said that he had never seen PC Jones lose control – i.e. act improperly or illegally. He told the court that the log he had completed as the operator of the carrier that day showed that he knew of Ahmed Hegazy’s arrest but not Basil Khan’s.

K Events at the Police Station

[207]We now come to the evidence about what happened when the carrier returned to Paddington Green Police Station.[208]There is a substantial amount of CCTV film which was taken at Paddington Green Police Station that evening. It is convenient to deal with that first. The parties very usefully agreed an index to the footage. At 17.47.54 the TSG carrier entered the rear yard of Paddington Green Police Station. At 17.48 Police Constable Prout left the carrier and entered the custody suite. At 17.49, Ahmed Hegazy was brought into the custody suite by PC White and PC Brown. At 17.50 a strip search was carried out of Ahmed Hegazy. At 17.51.20 PC Jones entered the custody suite, and at 17.54.08 PC Brown and PC Jones spoke together outside the cell where Ahmed Hegazy was being searched.[209]At 17.56.38 onwards Police Constable Brown was booking in Ahmed Hegazy at the Custody Sergeant’s desk. Hegazy was at the front desk until 18.06. At 18.09.56 Basil Khan was brought into the custody suite from the carrier by PC Jones followed by PC Kitchener. At 18.10.25 and thereafter Basil Khan was strip searched in a cell. Between 18.20 and 18.32.44 Basil Khan was at the custody desk with PC Jones and other officers. He was returned to the cells at 18.47.[210]At 20.12 lay visitors visited the police station. At 20.36.59 and 20.37.51 respectively PC Onwugbonu visited Basil Khan’s cell and Ahmed Hegazy’s cell. There is no evidence that he spoke to them.[211]I turn now to the evidence of the custody sergeant Police Sergeant (now Inspector) Richard Watkinson, called by the Defendant Commissioner. He said in his evidence that, as each of the Claimants Ahmed Hegazy and then Basil Khan were brought in, he was given a brief overview of the reasons for their arrest. Before they were brought in he was also told by PC Prout that there had been a public order incident involving two individuals. He had said to Mr Prout he could bring them in if they were going to behave. Prout said that they probably would not, as one had threatened to kill an officer and had had “a pretty good go at doing so.” Mr Watkinson said that they should be brought in for a strip search. When Hegazy was brought in he was taken straight away to the strip search cell to be searched. When he was brought in he recorded on the custody record what he had been told as the reason for arrest. They were “threats to kill; abusive towards police, stopped and spoken to, threaten to draw officer’s blood and assaulted several.” That account was given to him by PC Brown.[212]Sergeant Watkinson was later informed that Hegazy had been arrested for being in possession of a stolen telephone. I shall set out in due course the evidence relied on as justifying that arrest. Ahmed Hegazy’s detention was authorised. So far as Basil Khan is concerned the court heard evidence not only of what was in the custody record but also a transcript of the audio from the CCTV film. At 18.20 PC Jones brought Basil Khan to the desk and said that he had been arrested for threats to kill. He said “The circumstances are a stop and search by (inaudible). He was sort of on the periphery but mouthing off. Dealt with his friends and then the other big guy started kicking off so he was taken to the carrier but in the meantime I am just sort of in the van. The crowd that he was with, amongst the crowd were members of the public that (inaudible). He threatened to stab up a number of tourists. I told him to calm his tone down and he turned to me and said “I’ll stab you up and watch you go cold.” I then said “I am arresting you for threats to kill. Get on the carrier” and he turned around and swiped me in the face and ultimately he was arrested for threats to kill and assaulting police.” (Various “ers” omitted.) The record made on the custody form by Sergeant Watkinson was “threats to kill and assault; crowd gathered around police officers, threaten to stab up public, told officer he would stab him up and watch him go cold, head butted officer.”[213]He stated that he had authorised the strip search of Basil Khan not realising that he was 16. He agreed with Ms Kaufmann in cross examination that the information he had before him was inaccurate and did not justify the strip search. He said he had made a mistake and he would do things differently now. He confirmed that he had been told that Basil Khan had threatened to stab tourists.[214]So far as Ahmed Hegazy’s evidence is concerned, he said that once the van had arrived at Paddington Green Station the officers in the van were talking about what they would arrest him for, but mainly what they would arrest Basil Khan for. He did not remember any more about that conversation. He was taken into the police station in handcuffs. He was with the officer he called officer 1 i.e. PC Brown whom he said was now trying to act more nicely and saying to him “don’t worry.” He said he was taken straight to a cell and strip searched. One said something like “if you move, I will take you down.” He was required to remove all of his clothes, though he was not entirely naked at any time. Nothing was found upon him. He then went back to the custody sergeant’s desk. When asked if he wanted a solicitor he had said yes. The sergeant said that there had been a phone call from his cousin and was told that a Millie Guest was upstairs who worked for a firm of solicitors. He spoke to her by telephone and decided to use her firm’s services, which he told the custody sergeant. He said at some point in the evening he was rearrested for theft of a phone. Later another officer came into the cell in a group and said that they were independent of the police. He refused to speak to them because he did not trust any of them (these were the lay visitors). He also saw a doctor and his solicitor.[215]He could not remember how long it was before he was given bail. His mother and sister were waiting outside. They went to the hospital for a check up as he was in a lot of pain. There was pain in one of his legs. He went home. No one told him at the police station that a police officer had said that he had been mistreated. He was told a few weeks later by his solicitor Millie Guest.[216]When interviewed under caution at just after 2.00 am the following morning, Ahmed Hegazy had given an account very similar to that which he gave in evidence, albeit with more detail as it was the following morning. He was bailed. Thereafter he was contacted by the DPS. In due course he made a complaint on 19 July 2007. He said that in this incident he had a lump on his leg, a scratch and bruise on his neck, and a scratch and bruise near his ear. He had marks around his wrist and a few marks around his body but he could not remember exactly where they were. On the evening he was arrested he was very confused, and he could not understand what had happened. Thereafter he could not sleep, and was quite jumpy, so that when he was sleeping a noise would disturb him. He said that he found the Crown Court trial unpleasant because it felt as if he was getting tried. (I shall set out in due course what happened at the Crown Court trial in so far as is relevant).[217]He was cross examined by Mr Hardy QC. He agreed that he could sit down normally when he was in the station and walk around, as could be seen on the CCTV. He also agreed that he was moving freely when he left custody. He denied putting on a show to his mother and sister when they came to the police station to collect him. It was suggested to him (and denied by him) that he had put on a “theatrical show” and “a show for your mother like an Italian footballer.”[218]Basil Khan gave evidence that after the van had arrived at the police station Ahmed Hegazy was taken out. PC Jones came and told Basil Khan to kneel down with his hands (handcuffed) behind his back facing the back door. He was left there for 15-20 minutes. PC Jones kept coming back every 3-4 minutes. He said that he would turn around and Jones would tell him to turn back round. PC Jones eventually took him off the van. There were police officers talking outside the van amongst themselves. When the back door opened PC Jones told him that he was under arrest for threats to kill and he could not say what else. It was a big shock for him to be told that he was under arrest for threats to kill; it was too much to handle. He was then strip searched. He was uncomfortable. He was completely naked at the end. He was told to squat at the end three times when naked. He felt humiliated. His recollection was not that clear about what happened in the police station. He did not remember seeing the doctor, being rearrested for possession of a stolen mobile phone, or pressing the buzzer and asking for information.[219]Basil Khan said that he was released the following morning. He said that in the weeks following he felt scared, terrified and had panic attacks. He said that if he saw a police van he would go into a shop and be where members of the public were. He thought about it every day.

Other evidence about events at the Police Station

[220]There was other agreed evidence about the arrival of Basil Khan at the police station. PC Everett made a statement to the DPS on 27th June 2007. He described how he, and another TSG officer, were in company with two other officers (PC McKay and PC Allen) when they saw the carrier in question adjacent to the entrance to the custody suite. Sergeant Wilson and PC Jones were standing at the side door and PC Onwugbonu and PC Prout were standing near the front of the carrier. After he had been informed that two males had been arrested for public order offences he looked in the rear of the carrier and saw someone he described as the prisoner kneeling within the carrier near the rear door, and who was handcuffed. After he has spoken to a group of youths outside who were concerned about two of their friends who had been arrested, he went and looked again at the person in the carrier, who was still in the same position as before – i.e. kneeling on the floor and handcuffed.[221]PC McKay described in a statement of 20 June 2007 seeing the carrier. He spoke to Sergeant Wilson who was standing outside it and said that two youths had been arrested for “public order.” He went to the side door of the vehicle where PC Jones was standing. Inside he could see PC Kitchener sitting on the back double seat and he was then able to see a male on his knees facing the rear doors whom he thought was handcuffed to the rear.[222]PC Onwugbonu described what happened at the rear of the police station. He said:
“We stopped at the back gate for a few minutes whilst waiting for cell space and PC Jones was still punching and driving his knees into Basil, shouting swearing and basically abusing him. I looked at Sergeant Wilson using hand signals asking him to stop this but he ignored my request. There was cell space at Paddington and we drove into the yard. PC Brown and PC White took Ahmed into custody whilst we remained on the carrier with Basil and PC Jones carried on again punching and punching and punching Basil several times. I was then approached by Sergeant Wilson in the yard. He’d been informed that I was not happy with what went on and I told him “I’m not impressed with what went on, that was way out of line”
. He said “They can’t go around abusing police officers.” He then began to tell me that they were well known robbers. I informed him that I may have to speak to the governor about this and Sergeant Wilson said “you can speak to the governor if you are not happy.”[223]PC Prout said that upon return to the police station, after Hegazy had been taken in, PC Onwugbonu was standing near the front of the carrier and looked upset. PC Prout said to him “What’s up, what’s the problem?” He replied “That’s not right, he was too rough with him.” The conversation was then interrupted. At a later stage PC Onwugbonu had said to PC Prout “That’s not right, what should I do about it?” PC Prout gave him the advice he would give anyone and said that if he had concerns they should be reported.[224]Sergeant Wilson said that at the police station, while Basil Khan was still in the carrier and Sergeant Wilson was sitting in the carrier, he became aware of PC Onwugbonu standing there rubbing his head. He said that he approached him and a short conversation ensued. Sergeant Wilson gave evidence that he said something like “Amechi you don’t look happy what’s wrong?” He said something like “you (or we or he) should not have treated him like that” or an answer along those lines. Sergeant Wilson said to the court in evidence:
“If I had treated him differently, things may not have escalated. I was quite dismissive. He said something like “If you are not going to do anything about it, I will take it somewhere else.”
I said “Do what you like” because I was irritated. I thought it was unjustified and that he was criticising me.” He said that he then went straight upstairs to the Sergeant’s office. He said that PC Onwugbonu made his notes separately. He went to look for him to ask why he was not with the others. He said something like “My notes will not do anyone any favours.” Sergeant Wilson said that he thought that he was saying that they had used too much force.[225]He told his senior officer, Inspector Banks, that PC Onwugbonu would contact him. He told the court he had been dismissive because he knew that nothing had happened. However he agreed that he did not see what had happened between Jones and Basil Khan, but said that from his demeanour he knew nothing had happened on the van.[226]Inspector Banks’ evidence, dated 31 July 2007, was put before the court as hearsay evidence. He got a call at 8pm from Sergeant Wilson to say that his carrier had arrested two persons earlier and that they had been taken to Paddington Green Police Station, having been arrested for threats to kill. He went on “He also informed me that PC Onwugbonu might speak to me as the officer had spoken to Sergeant Wilson about his concerns about the manner in which the youths had been dealt with on arrest. I asked if there were any incidents upon arrest that I needed to be aware of and was assured by Sergeant Wilson all was carried out correctly. Shortly after this call I received another call on my work mobile phone from PC Onwugbonu. He stated that he wanted to speak to me about the arrest of two males on Edgware Road earlier in the evening.”[227]Inspector Banks then went to Paddington Green Police Station from Lambeth. He was met by PC Onwugbonu who asked to have a word in private with him. PC Onwugbonu appeared apprehensive and looked worried and stated that he had witnessed officers whom he believed had used excessive force during the arrest of the two males on the Edgware Road. Inspector Banks asked him to give an account of what had happened. He described PC Jones bringing a youth into the carrier and making him cry (this would be Omar Mohidin). He then referred to another youth being placed on the floor of the carrier (i.e. Ahmed Hegazy). He stated that he thought that the officers had used excessive force on him although he did not elaborate what had occurred or who used the force….. He stated that the first youth was let go with a warning about his behaviour from PC Jones……..Just as they were pulling away, Police Sergeant Wilson asked them to stop and he got off and brought another youth onto the carrier. He stated that he saw Sergeant Wilson grab the youth by the neck and slap him on the face. PC Jones then asked Sergeant Wilson what the youth had done and then he hit the youth. PC (Onwugbonu) then went on to describe that he saw PC (Jones) move some of the public order kit bags at the rear of the carrier towards the rear doors. He then saw PC (Jones) place the youth Sergeant Wilson had brought into the carrier in a neck hold and then immediately fall backwards with him (so that the officer landed on the kit bags) (and) described how the youth was screaming that he could not breathe. He then went on to say that he saw PC (Jones) hit and kick this youth several times. ….for no apparent reason. (He) appeared to be visibly upset as he recounted this incident to me. ….. he also stated that the carrier stopped prior to the custody suite area where again PC (Jones) hit one of the youths”[228]Inspector Banks telephoned his Chief Inspector to inform him what he had been told. As a result DPS were contacted. Later that evening he was provided with a notebook from each of the officers except PC Onwugbonu.[229]The officers Sergeant Wilson, PC White, PC Kitchener, PC Brown and PC Jones all sat together taking their notes. At the time of these events, no criticism can be made of officers comparing notes while drawing up their notebooks. PC Prout was in the same room but sat apart from the other officers, albeit at the same table. When he was interviewed under caution in March 2008 he said that PC Onwugbonu had called out to him that he should not make up his notes with the other officers. PC Prout said to him that he should not worry because he was not going to put anything in his notes that he couldn’t swear to, but that he had seen Hegazy strike out at PC Brown. He considered that it was not inappropriate for him to be with the other officers or near them when making notes about an incident that he had witnessed. He said that he sat at the extreme end of the table, and that during that process he felt uncomfortable and ostracised. He did not seek to have his memory refreshed by anybody. He told Ms Kaufmann that he knew or believed that something had happened, and wanted to be as scrupulous as possible about writing his notes. He said that he had stayed out of the way of the others afterwards as he felt that something had happened. Meanwhile PC Onwugbonu made his notes, to which I have already referred, and also began typing a recollection of the incident to which I have already referred.[230]Ms Millie Guest, who was an accredited police station representative, was acting for Ahmed Hegazy at the police station on 1 June 2007. She had made a statement, and was to have been called as a witness for Basil Khan, but in the event her statement was agreed. She sought to see Hegazy at 18.25 pm but was told to wait. She was told at 19.10 pm the officers had still to complete their notes. She was told to get photographic identification so she had to leave the police station. She telephoned again at 20.15 and was told that the notes had not yet been handed in. She returned to the police station at 21.05 but was told that she could not enter the custody suite as they were too busy and the officers were still completing their notes. She again contacted the custody suite at 21.38 and said that she wished to see her client. At the front desk at 21.50 she asked to see the Inspector concerning the delays. She was permitted to enter the custody suite at 22.08. She asked for disclosure at 22.25 and was told that the officers had still not completed their notes. At 22.35 she spoke to Ahmed Hegazy. A review was carried out by Inspector Cruickshank at 23.45 and she registered her concern as six hours had passed since her client’s arrest. She was again informed that the delay was because of the writing up of the notes. In fact all the stamped notebooks had been handed in by 10pm.[231]She had a consultation with Hegazy at 00.37. Her notes record that Hegazy had complained that he had been assaulted by the police and she recorded his injuries as “reddening to his throat, three scratches on the right side of his forehead and over the eyebrows; red marks (slight swelling) to right temple, scratch on back, slight swelling to left wrist and marks.”[232]She advised him not to lodge a formal complaint about his treatment while still in custody, which was her standard practice advice. She spoke to the DPS at 00.45, but made no note of what was said. At 02.06 she represented Hegazy at his interview. She had no contact at all that she could recall with Basil Khan.

The mobile telephones issue

[233]Both Hegazy and Basil Khan were in possession of mobile telephones. When PC White checked the list of mobile phones whose loss was known to the Police, they were shown. Each was arrested for theft of a mobile telephone. But the evidence showed that the list was of telephones reported as “lost or stolen.” Ms Gerry rightly pointed out that the information in the hands of the police was equivocal on whether either telephone had been stolen.[234]Even more significantly, neither of the listed owners of the telephones wanted their return. It became quite obvious that the system involves a considerable risk of abuse. If someone wants to make an insurance claim, and reports the telephone as “lost or stolen” then they may recover compensation, even though the telephone has been sold. No-one can know what happened here, but the fact that the listed owners took no steps to recover the supposed stolen telephones suggests strongly that they were certainly not stolen, and probably not lost either.[235]I have a great deal of sympathy with the position of the Police, who must do the best they can on the evidence they have. But in any event, there is no suggestion that either Ahmed Hegazy or Basil Khan would have been kept in custody as a result of the mobile phone allegation.

The visit to Basil Khan’s cell by Inspector Cruickshank

[236]This is a very important piece of evidence. The CCTV evidence shows that a telephone call was received by Inspector Cruickshank sometime after midnight. He was on duty at the station in uniform. Inspector Cruickshank’s evidence was that he had received a telephone call from an Inspector Belej of the DPS. As a result he went to speak to Basil Khan. Basil Khan by this stage had made no complaint about what had happened to him. There is a transcript, which is not disputed, albeit not formally agreed. The conversation went as follows, insofar as it is relevant: Inspector Cruickshank:
“Basil, still awake? …………..The sergeant is just here to be a witness to this, did anything happen to you in the back of that police van tonight? Inspector Cruickshank: “What?”
Basil Khan: “I got beaten.” Inspector Cruickshank: “Tell me what happened?” Basil Khan: “First the Sergeant came up to me and said “where’s your bottles” right cos you know how it is yeah.” Inspector Cruickshank: “That was the Sergeant?” Basil Khan: “He slapped me across my face.” Sergeant: “And then?” Basil Khan: “I remember that name was PC Jones. PC Jones came up the back and he strangled me.” Inspector Cruickshank: “Who did, PC Jones?” Basil Khan: “yeah, and I was strangled yeah and he pushed my hand back so both my arms were unfolded, yeah man it was then after he told me to get back in the chair then he grabbed me again. I don’t know how to describe …I don’t know if you will ever believe me but I was telling you what happened.” (pause) Inspector Cruickshank: “If I didn’t believe you I wouldn’t be here Basil. Ask the Sergeant, we have a witness that sees you strangled in the (inaudible) also I am recording all you tell me for the purpose of once you are in the van.” Basil Khan: “I was standing there and then… he was doing that to my head like.” Inspector Cruickshank: “Who is this, PC Jones?” Basil Khan: “PC Jones did it like three times to me. Then I started crying. ….. Basil Khan: “…PC Jones came up to me and started kneeing again over here and hitting me on my head I was just covering my face hitting, hitting me so then afterwards (it felt like it was so bad) I really felt just like crying…..”[237]Inspector Cruickshank said in evidence that he spoke to Basil Khan because Inspector Belej had spoken to him. At that point Basil Khan had not made a complaint of any injury or indeed of anything. Inspector Cruickshank was asked by Mr Hardy QC if it was possible that he had told Basil Khan anything which Inspector Belej had told him. He said that he may have done so inadvertently but he said that the transcript was accurate. It will be seen from the transcript that Inspector Cruickshank asked an open question without suggesting to Basil Khan what his answer should be.[238]Other evidence was called by the Third to Sixth Parties. I shall deal with that called on the similar fact issues separately. I shall deal with this evidence by topic.

L Hearsay Evidence called about the Claimants

[239]Sergeant Burger, in a witness statement of 24th September 2009, described the incident involving Omar Mohidin at the Israeli Embassy to which I have already referred. It was not based on any notes.[240]PC Ryan Davis, in a witness statement of 15th October 2009, described stopping Basil Khan on 5th July 2007. He says that Basil Khan said that he really liked PC Jones, and made a money sign with his hands.[241]PC Luke Thomas had written an undated witness statement. It contained a series of unsubstantiated allegations about Ahmed Hegazy and Basil Khan, coupled with speculative opinion. It is a matter of astonishment to the Court that anyone would think it admissible, and I have disregarded it.[242]A PC Brown (whose other names are unknown) gave a witness statement on 5th October 2009 about an incident in April 2009 when he spoke to Basil Khan. Basil Khan said “I can do a lot of damage to police officers, haven’t you heard about me?” He said that he had beaten up six officers in the back of a van.[243]PC Chris Arno made a statement on 4th December 2007. He came across a group which included Basil Khan. Basil Khan advised one of his colleagues not to be aggressive. He told PC Arno that PC Jones had beaten him up in a carrier like the one PC Arno was working on. PC Arno said that he defused the situation by saying that there were lots of people called Jones in the service.

M Similar Fact Evidence

[244]For Ahmed Hegazy, Ms Gerry adduced hearsay evidence relating to an incident involving a Mr Barnes. The evidence consisted of a complaint form filed by email on 26th June 2007 by Mr Barnes, relating to an incident about one hour earlier on the same date. In it, Mr Barnes alleged that PC Brown and another officer had stopped his car in Kennington Road. The other officer ordered him out of the car, but he refused because he had not been told the reason. The other officer threatened to break the windscreen. PC Brown told him that he had been stopped because the window tints of the car were illegal. His partner and child were also in the car. When he got out, he said that he was seized by his wrists and arms and searched. He was then handcuffed by PC Brown, who told him that he was being detained under the Public Order Act. He was also told that his description fitted that of a sexual predator. Barnes said that he was exasperated, and said that PC Brown said “I’ve had enough of this nigger.” After a PNC check he was released. He stated that at a later stage he attended the Police Station, where both officers confronted him. He was threatened by the officer and told that if he did not shut up, they would arrest him.[245]PC Brown’s account in his witness statement is that he and the other officer were in a carrier when they saw a car being driven badly. He said that “he clearly wanted to attract our attention…..he forced his way into a queue of traffic and made it very difficult for us not to stop him, as public perception would have been damaged.” PC Brown said that he went to assist the other officer “with huge reluctance.” He sat and watched the man, feeling physically sick “as I contemplated my career as a police officer, and realising that I would never have the confidence to deal with this type of stop again.” He said that the complaints were fictitious.[246]When the IPCC investigated the complaint, Mr Barnes failed to attend a meeting with DPS investigators, despite reminders. On 10th December 2007 he told DPS that he was working nights and was involved with childcare issues, and no longer wished to pursue the complaint.[247]For that reason, whatever views one might have about PC Brown’s rather emotional account, in my judgement it is impossible to give this complaint any weight. I express no views on its veracity, but shall discount it entirely.[248]For Omar Mohidin and Basil Khan, Ms Kaufmann relied on two incidents. The first related to a man called Babar Ahmad. Ahmed Hegazy also relied on it. Babar Ahmad was suspected of offences under the Terrorism Act. Since the incident in question relating to him (2nd December 2003) he has been extradited to the USA, where he was convicted of terrorism offences and has since served a prison sentence.[249]A hearsay notice was served, relating to a witness statement made by him. On 2nd December 2003, a number of police officers entered the house he shared with his wife. He said that when the Police entered their bedroom, he was standing with his arms in the air and his feet apart, to show that he was not hiding anything. He was told to “get down, get down, fucking get down!” He was grabbed and his head forced into the window. He says that he was sworn at, kicked, kneed and punched. He was repeatedly sworn at. He was struck repeatedly when on the floor, and his testicles were grabbed. He was arrested and handcuffed. One officer stamped on his bare feet.[250]He was taken downstairs and forced, while in handcuffs, to adopt a praying position. His private parts were forcibly searched.[251]He was placed in the police van. He was made to lie on the floor. He was struck repeatedly in the back and left kidney. An officer pressed his boot down on his crossed ankles, while twisting his cuffs and causing him pain. An officer, whom it is said was PC Jones, was asking him about where he was born. Having hit him, he then got him in a choke hold, while pulling him upwards as the other officer still had hold of his ankles. After that he put him in another headlock. His evidence about what happened in the house was supported by his wife Uzma Qureshi.[252]The officers involved denied any improper conduct.[253]The IPCC investigated the matter and took action against one of the officers (not PC Jones), who had misconduct charges against him dismissed in April 2005. However in June 2005 Mr Ahmad issued proceedings against the Metropolitan Police Commissioner. The trial started before Holroyde J in March 2009. During the trial, the Defendant Metropolitan Police Commissioner decided to make a full admission of liability, which resulted in compensation being paid to Babar Ahmad. The decision was then made to prosecute the officers involved, including PC Mark Jones.[254]Jones and three other officers stood trial at Southwark Crown Court in May 2011. Shortly before the trial was due to start there was disclosed a recording made within the house by the security services. It did not support Babar Ahmad’s account of what had happened in the house. It was of course silent on what happened in the van.[255]It is plain that whatever happened in Babar Ahmad’s house and in the van outside is hotly disputed. I am not prepared to make any findings about the matter when I have not heard any of the significant evidence, let alone heard it tested under cross examination. I am also reluctant to make conclusions about propensity relevant to an incident of the type I am dealing with from an incident of a major raid on the home of a suspected terrorist.[256]So far as Ahmed Hegazy is concerned, he had little interaction with PC Jones in the incident I am dealing with, so this evidence advances his case no further. In the case of Omar Mohidin and Basil Khan, as will become apparent, I have formed an adverse view of PC Jones in any event. In doing so, I have not placed any weight at all on the Babar Ahmad incident.[257]The other incident relied on by Ms Kaufmann related to an incident in the Tottenham Court Road on 7th March 2007 involving a MrMohammed El-Kholti. He complained on 7th March 2007 of an incident when he had been in Tottenham Court Road at about 1.20 am, and was, he said, asking passers by and then a group of workmen where a snooker club was which he wished to visit. A police van approached, of which the driver was PC Jones, who vaulted a fence or barrier and approached him. He said that a female officer also swore at him, calling him a “cunt.” He said that he was grabbed by PC Jones and pulled towards the door of the Police Van, where PC Jones pushed him in. Inside the van PC Jones told him to get on his knees. He refused, whereupon PC Jones grabbed him by the neck and was swearing at him. He was arguing that PC Jones had no right to act as he was doing. PC Jones than sprayed him with CS spray, pulled open the door and ejected him from the van. He was then handcuffed and resisted. He was put back in the van.[258]On the way to the Police Station, PC Jones said that El-Kholti was being detained for a drugs search. At the police station PC Jones said that he had arrested him for obstructing the Police. There was medical evidence from a Dr Sandor that El-Kholti had some abrasions and smelled of CS spray. It appeared that pressure had been applied to his neck. He also gave evidence that at a later stage El-Kholti was found banging his head against his cell door.[259]PC Jones in his witness statement said that he was driving with two other officers, PC Kelly Bond-Vaughan and PC Trevor Mullen. As they did so, they heard whistles, which is a sign drug dealers give to warn of the presence of the Police. He sought to detain El-Kholti for a drugs search, but he refused. After El-Kholti had repeatedly refused to be searched, PC Jones took hold of him and put him in the van. El-Kholti was very aggressive and lunged at him. PC Jones, having failed to control him, warned that he would use his CS spray. El-Kholti lunged at him again, so he used it. PC Jones opened the door to call for help, but both of them fell out. He was given CS aftercare and then out back in the van. He described El-Kholti as being very tall.[260]PC Kelly Bond-Vaughan gave evidence. She was principally concerned with the other man who was with El-Kholti. She gave evidence that they had been stopped because they were suspected of dealing in drugs. She was adamant that she would never have called him a “cunt” which was a word she detested. She described seeing El-Kholti at the door of the van towering over PC Jones, and of El-Kholti being very aggressive on the way back to the police station. PC Trevor Mullen gave evidence to much the same effect.[261]Ms Kaufmann was keen to persuade me that PC Jones’ conduct of getting El-Kholti into the van, and then seeking to mete out his own form of justice, was strikingly similar to the events relating to Basil Khan and Omar Mohidin.[262]My starting point is that I accept the evidence of PC Bond-Vaughan that the two men were rightly suspected of dealing in drugs. The idea that they would be approaching people at 1.20 am to discover the whereabouts of a snooker hall is inherently implausible. Neither she nor PC Mullen can give evidence about what happened in the van. In the absence of evidence from either El-Kholti or PC Jones, I am not willing to reach any other conclusions.

N My assessment of the witnesses and their evidence

[263]It is inevitable that when witnesses seek to describe an incident such as this, there will be contradictions and inconsistencies between them. That is the common experience of the courts and judges who have dealt with cases concerning events such as these. Added to that, a great deal of time has passed since the events of June 2007, and it is thus inevitable that recollection by witnesses will be much less clear than it was at the time. It is also important to remember that evidence which is untrue may not be a lie or lies, but may simply be mistaken. It is also the common experience of the criminal courts, and especially in cases of assault or disorder, that a witness or witnesses may be untruthful or exaggerate about some matters, but not about others. Whether that has happened depends on the evidence, and on the judgments I form about that which I accept, and that which I do not.[264]I have also had regard to the evidence which I heard that TSG officers have to get used to the experience of some of those with whom they deal making false complaints.[265]It is only proper that I should take into account the evidence which I admitted and heard about the characters of the Claimants, which I have set out in full. Some of it seems to me to go only to credit (whose significance I accept), but is of no relevance beyond that to deciding what happened in the incidents. In the circumstances of this case, it is hard to see for example why misuse of an Oyster card by Omar Mohidin or theft by him of a jacket show anything at all about what happened that day. In Basil Khan’s case, all but one were similarly irrelevant to anything but general credit. However in Ahmed Hegazy’s case some at least of what was put before me was significant.[266]Equally, I give full weight to the fact that all the officers on the TSG carrier were trained and (save for Mr Kitchener) experienced TSG officers.[267]I had the opportunity of observing all of the main participants (save of course Mr Onwugbonu) in the witness box, and, save for Mr Jones in the respects already described, how they gave their evidence in chief, and how they responded to being tested in cross examination.I have also taken into account the evidence before me about PC Onwugbonu, given by the other officers.[268]I start with Ahmed Hegazy. There can be no doubt that Ahmed Hegazy’s criminal history, which includes significant robberies, must cast considerable doubt over his credibility. I also consider that there is evidence about him, which shows that he had the propensity to become very angry, and to use violence or to make threats when he did so. He accepted in evidence that he could become angry. I also found his account of the effects of the incident upon him to be very considerably exaggerated. He has exaggerated aspects of his evidence, and especially the claimed effects upon him, as I shall deal with below when I address the issue of damages. In the witness box he could not remember many features of what had occurred in the incident. I am not critical of that, as the incident happened 8 years ago.[269]However he did make a complaint about what had occurred while at the Police Station. He did so after seeing his legal representative Millie Guest. It is quite unclear whether or not she had told him anything of what she had learned of PC Onwugbonu’s account before that complaint was made.[270]So far as his injuries are concerned, I am quite satisfied that he did suffer some painful bruising, and I am critical of the attempts to portray him as being histrionic on his release from the Police Station. Dr Frazer found some injuries which must have been painful, and described him as tearful. But I am also satisfied that there is nothing in his injuries which undermines the account given by the PCs Brown and White, who described Ahmed Hegazy’s violent struggle, which required them to grip his arms, get him to the floor, and place him on the floor of the van, where his legs were held so as to restrain him. When there, he was stepped on, but Ahmed Hegazy did not allege in the witness box that that happened deliberately. Given his position across the access into the rear of the van from the main door, and the number of people dealing with him, his being stepped on by accident was not unlikely.[271]So far as Omar Mohidin is concerned, he too has some, albeit much less, experience of crime. He has exaggerated aspects of his evidence, and especially the claimed effects upon him, as I shall deal with below when I address the issue of damages. I also reject the account he gave of what happened at the Israeli Embassy. While it is true that Sergeant Burger’s recollection was made several months later, the fact is that Omar Mohidin accepts that he was there. That being so, I am minded to accept that he was boasting about obtaining money from the Police because of the activities of Mark Jones. That may have been unwise, but it does not discredit his account of what occurred in the van. However I do not accept the other parts of Sergeant Burger’s evidence. His witness statement was not made until 9 months later, and he had made no notes of the incident.[272]However Omar Mohidin’s account of what happened to him in the van was potentially credible, and I consider that he gave it in a straightforward manner. This following of the group by the TSG carrier started because of a perceived insult to the TSG officers within it, of obscene gestures and insults of a type regrettably typical of some groups of teenage youths. It is a notable and curious feature of the case for PC Jones that Omar Mohidin was not arrested for that, but was said to have been made the subject of a search for cannabis, of which none was found, and of which search no record was kept. I do not believe that PC Jones intended to conduct a search for cannabis at all. His purpose was, and remained, bringing home to Omar Mohidin that he should not mouth obscenities or to make obscene gestures at the Police. I am inclined to accept Omar Mohidin’s evidence that he was grabbed by PC Jones and shouted at about having mouthed at the Police. That rang true, and chimed with the actual reason why the Police were interested in stopping them, which was that the officers felt that a challenge had been made to them by a group they regarded as bad mannered and objectionable teenagers. His evidence is also supported by the evidence of PC Onwugbonu. Whether that inclination remains after considering the evidence from the other officers must await my consideration of their evidence.[273]However I do not accept that he was handcuffed. I am sure that had he been so, he would have mentioned that in his original complaints.[274]Basil Khan has exaggerated aspects of his evidence, and especially the claimed effects upon him, as I shall deal with below when I address the issue of damages. However his account of what occurred to him in the van was straightforward, and while I accept that he minimised what he did outside the van, it is quite plain that he provided details of what he alleged had happened at an early stage, and did so unprompted, when Inspector Cruickshank came to his cell. PC Onwugbonu provides strong evidence to support what Basil Khan says about what happened in the van, and did so quite independently within a few hours of the incident. I also found that PC Prout’s careful evidence and independently written note suggested strongly that the account given by both PC Onwugbonu and Basil Khan that he was at first put into a seat was correct. I shall consider the evidence of the other officers in due course.[275]However, I do not accept Basil Khan’s evidence about the reasons for his arrest. In that respect I accept the evidence of Sergeant Wilson that he was angry about what he had seen happen to Ahmed Hegazy, and had approached the van swearing and making angry gestures. That is supported by evidence from Hegazy himself. The group had seen a struggle involving Ahmed Hegazy, who had been put in the TSG carrier against his will. While they were wrong to do so, it is unsurprising that his friends decided to remonstrate with the Police officers. When the van was leaving, Basil Khan decided to have a parting shot of swearing and gesturing at the van. However, I do not accept that he made the threat alleged by PC Jones. It did not sound authentic, and had it been made I would have expected Sergeant Wilson not to have overlooked it in the way that he did. As it was, he treated Basil Khan as only having committed a public order offence.[276]It is convenient that I deal here with the evidence called about PC Onwugbonu’s conduct as an officer. Some of it related to his approach to dealings with members of ethnic minorities, and to his having made what was another allegedly erroneous complaint in the past. I accept the relevance of both, and I shall consider that below. However some of it was utterly irrelevant. For example, how can it conceivably be thought that arguments about payments to a social club, or his being keen to maximise his earnings, have the slightest relevance? The purpose of that evidence was to drag up any and every piece of information which might put him in an unfortunate light. It was an attempt to smear him, and it has the potential to say more about the motives of those who gave or adduced such evidence as part of their case than it does about him.[277]In my judgement that approach to PC Onwugbonu’s evidence was not only unfair, but suggested strongly that Ms Kaufmann’s suggestion that a whistleblower places himself in a very difficult position was one of substance. While the witnesses who did so are of course to be criticised, I am also very critical of those who advised the Third to Sixth Parties on the presentation of their cases. I have pondered whether I should regard this mudslinging (the aptest description for it) as something which I should put in the balance when considering how I assessed the credibility of the witnesses who adduced it. On reflection, I cannot exclude the possibility that it has been included out of very poor judgment or very bad advice from an outside source (or both) rather than out of any desire to obscure the facts of what occurred that day. The solicitors for the Third to Sixth Parties are to be strongly criticised for its inclusion in the evidence filed in the action. Their job as lawyers is not merely to enable clients or witnesses to say anything they want. They have a duty to the court to see to it that irrelevant, vexatious or abusive material is excluded.[278]As to the past complaint, I am quite prepared to accept that it was wrongly made. I have no evidence of any substance (as opposed to mere opinion) that it was deliberately made falsely. As to the question of the mouse in the locker, no-one suggests that there was no mouse (indeed I heard evidence that Paddington Green suffered from the presence of mice), and I am prepared to accept that PC Onwugbonu thought that PC Mark Jones had put it there, whether that belief was true or not. However I find the idea absurd that that belief would lead to his making deliberately false complaints of violence against PC Mark Jones, so as to get him removed from the Unit. The evidence of PC Onwugbonu’s distress that evening (from PC Prout) is enough to dispel any idea that this was some calculated stratagem to get his own back. It also faces the problem that his account matched that of Basil Khan, when the latter had no idea of knowing what PC Onwugbonu had said.[279]I also accept PC White’s account of the conversation he had with PC Onwugbonu at the Christmas party in late 2007. It strongly supports the idea that PC Onwugbonu was not complaining of what PC White had done, but was very exercised about what had been done by Sergeant Wilson and PC Mark Jones. I am also convinced, as a result of PC Prout’s evidence that PC Onwugbonu realised very well that if he made a complaint on the evening of the incident, serious consequences would follow for PC Mark Jones and perhaps Sergeant Wilson. It was not a matter which he took lightly at all. He did not appreciate that what he said would result in serious consequences for others, which given what I find had occurred, is an entirely understandable view.[280]I also consider that the account given by PC Brown of his conversation with PC Onwugbonu on 12th June 2007 is true. It strongly supports the idea that PC Onwugbonu was not complaining of what PC Brown had done with regard to Ahmed Hegazy, but was very exercised about what had been done by Sergeant Wilson and PC Mark Jones.[281]As to the point about dealing with members of ethnic minorities, I do not give that much weight in the context of this case, where I rely on the evidence of what the witnesses say occurred. It is true that PC Onwugbonu had thought that the pursuit of the youths should be called off, but others were of the same mind. If his view was that the use of resources was excessive, to divert from the journey to Brixton (where they were needed) to chase after a group of youths because of some gestures, I consider that he had a very good point.[282]In the context of his evidence, I must have regard to the criteria in section 4 of the Civil Evidence Act 1995:
“(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence. (2) Regard may be had, in particular, to the following— (a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness; (b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated; (c) whether the evidence involves multiple hearsay; (d) whether any person involved had any motive to conceal or misrepresent matters; (e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose; (f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”
[283]I have already set out my views on the witness’ absence from the trial. I turn now to the criteria in section 4(2):(a) I do consider that he could have been produced as a witness. Equally, the Third to Sixth Parties could have required him to attend;(b) the statements relied on were made contemporaneously;(c) the statement does not involve multiple hearsay;(d) I do not consider that he had any motive to conceal or misrepresent matters. I deal at length with this matter in the succeeding paragraphs;(e) it was not an edited account, nor made for any purpose other than that of a police officer setting out in his notebook and in a draft witness statement his recollection of the events that had occurred a few hours before;(f) For the reasons I have given, I do not consider that the Claimants sought to avoid calling him to prevent a proper evaluation of weight. I do consider that the Third to Sixth Parties’ approach sought the tactical advantage of depriving it of weight by keeping him from the witness box. However I have received a large amount of material about him, and a large amount of evidence from others who were involved in these events. That being so, there is nothing in the circumstances which prevent the court from making a proper evaluation of weight.[284]Mr Hardy also invited me to consider under section 5 (2) Civil Evidence Act 1995 the following matters about his evidence at the Crown Court trial, which he said discredited his evidence: i). he had admitted at the Crown Court trial that he had wrongly said that a man I shall refer to as D was beaten up by officers, including PC Jones on 31st May 2007; ii). he had wrongly said at first that Ahmed Hegazy was handcuffed to the rear; iii). he had been “possibly wrong” to say that PC Brown had been swearing; iv). he had been wrong to say at first that PC Prout was in the rear of the van: v). he had been wrong to record that it was PC Kitchener and Sergeant Wilson who brought Basil Khan on to the carrier, when it was Pc Jones and Sergeant Wilson; vi). he had been wrong to have an impression that PC Brown removed his vest as he was offering to fight Ahmed Hegazy, and that he accepted that he could simply have been removing it because he was hot and uncomfortable; vii). he was wrong to maintain that PC Jones kept punching Basil Khan after the carrier arrived at the Police Station; viii). he was wrong to say that he did not visit Basil Khan in custody, when he visited both him and Ahmed Hegazy; ix). he was wrong to recall that PC Prout told him that he had also seen wrongdoing; x). he had not told DPS officers about the matter of the premises search in 2006; xi). his notebook and WORD draft contained differences.[285]I shall take those in turn; i). I have addressed the previous complaint already. I shall treat it as untrue; ii). this is an error in recollection. It has no effect on credibility at all; iii). he had been “possibly wrong” to say that PC Brown had been swearing. In any event, I would not regard evidence that PC Brown swore in the situation he was dealing with as in any sense blameworthy, albeit perhaps unwise; iv). this is an error in recollection. It has no effect on credibility at all. Indeed his concession was properly made and led to PC Prout’s acquittal on the charge of misconduct in public office; v). this is an error in recollection. It has no effect on credibility at all; vi). at most it was an impression, which he conceded could have been wrong. It has no effect on credibility at all; vii). I agree that PC Onwugbonu is wrong about this matter. I agree that it is necessary to look at his evidence in the light of it. However I conclude that the other parts of his evidence relating to Omar Mohidin and Basil Khan are true; viii). this is not a proper allegation by the Third to Sixth Parties. It became quite apparent from the CCTV film, as Mr Hardy accepted, that the most he did was to go to the doors of their cells. There is no evidence at all of his ever having spoken to them; ix). this was his error in recollection. PC Prout was undoubtedly sympathetic to him. It has no effect on credibility at all; x). this is another aspect of (i); xi). this is a frankly desperate point. None of the differences are of any real significance in the context of the case.[286]It is also important to stand back and look at his evidence overall. If one does so, it is a striking fact that it is a very detailed account, recorded within a few hours of the incidents in question. In the case of Omar Mohidin, it chimes well with the actual reason for the van having made the long detour, namely that PC Jones was angry at the disrespect shown towards him and the other TSG officers by Omar Mohidin as the van travelled southwards. In the case of Basil Khan, it is a remarkable fact that the account given by him of what occurred when Basil Khan was put in the van matches so well with that of Basil Khan, when, given the evidence of Inspector Cruickshank and the CCTV and audio evidence, Basil Khan had no idea at all of what PC Onwugbonu had said when Basil Khan gave his description. The only evidence one can set against what PC Onwugbonu said is that of PC Jones, Sergeant Wilson and PC Giles Kitchener, as I shall presently.[287]I turn now to the Third to Sixth Parties and their witnesses. I heard oral evidence from all the police officers on the van save PC Onwugbonu.[288]I consider that there were two witnesses among the Police Officers on the TSG van who emerged from the witness box with their credibility and reliability largely intact about what happened in the incident: PC White and PC Prout. It is true thatPC White unwisely joined in the attacks on PC Onwugbonu’s credit and character in a manner which I have had to take into account when assessing his own credibility. But even taking that into account, and adopting the approach set out above, I found them both to give clear, careful and reliable evidence about what occurred at the incident.[289]PC Brown exaggerated at times, but the fundamentals of his evidence about his dealings with Ahmed Hegazy were supported by PC White and to a degree PC Prout. Some aspects of Mr Brown’s evidence were most unsatisfactory, such as his unwise and ill-informed attempt to speculate that Hegazy was acting as he was because he was on licence from a sentence of imprisonment (he was in fact 17, and the subject of a referral order). However the core of his evidence that Hegazy got angry when he said he was searching him, was strongly supported by PC White, and accords with other evidence of Ahmed Hegazy’s character and tendency to become angry. For that reason I accept Mr Brown’s account and reject Ahmed Hegazy’s.[290]I find great difficulty in accepting Sergeant Wilson’s evidence, save where it is supported by that of PCs White or Prout. It follows that I accept it about his dealings with Ahmed Hegazy. While I accept that Basil Khan had been arrested for making gestures and shouting at the van, and that Sergeant Wilson had not thought that he should be arrested for threats to kill, I do not accept what he says about what happened thereafter. On any view, an incident was taking place just behind him as he sat in the seat by the side door. If PC Jones and PC Kitchener are correct, Jones was complaining that Basil Khan had hit him, and there was a struggle in which Basil Khan ended up on the floor with Jones on top of him. Both Basil Khan and PC Jones say that Basil Khan was complaining that he could not breathe. Yet Sergeant Wilson, who was the man in charge, would have had the Court believe that he remained sitting in his seat and saw and heard nothing, and that he had no reason to turn round and see what was happening. His accounts about that have varied from time to time. In my judgement, no responsible Police Sergeant in charge of that unit and van, could have just sat there and allowed that situation to continue. No person sitting in that seat could possibly have remained oblivious to what was happening just behind his right shoulder. In my judgement, he was claiming to have seen and heard nothing so as to avoid incriminating PC Mark Jones and to minimise his own involvement.[291]He also allowed Basil Khan, who was then aged 16, to be left handcuffed and kneeling in the back of the van for about 20 minutes at the Police Station, when it was quite unnecessary and he could have been put on a seat, not least for his own safety. I find it impossible to reconcile that with the image of a Police Sergeant dealing properly with those whom his officers have arrested. He was again letting PC Mark Jones continue in his ill treatment of Basil Khan. The evidence that Sergeant Wilson hit and shouted at Basil Khan comes from both Basil Khan and PC Onwugbonu. I find it impossible to prefer Sergeant Wilson’s evidence to theirs so far as the incident is concerned involving Basil Khan.[292]So far as Mr Jones is concerned, I only had some of his evidence orally before his collapse, but I have his notebook entry of that evening, and also evidence of what he told the custody sergeant. There is a stark conflict between the latter two. There is no evidence from any other source of any threat to stab tourists. I am satisfied that it was said to the custody sergeant so as to put Basil Khan in a deliberately worse light. I also consider that the account by Basil Khan of what Mr Jones said to him inside the van rings true. It is supported by the evidence of PC Onwugbonu. The latter gave his account without any way of knowing what Basil Khan would say, and Inspector Cruickshank’s evidence, (which I entirely accept) and the CCTV transcript shows that before Basil Khan made his complaint, he had no way of knowing what PC Onwugbonu had said. What PC Onwugbonu and Basil Khan describe is the very angry response of PC Jones to anyone who he perceived as challenging the authority or actions of his unit by someone he regarded as an antisocial youth who required being told who was boss. That is also what Omar Mohidin described, and it too rings true.[293]PC Giles Kitchener was a witness in a very difficult position. He had only been in the unit for just over a fortnight. However his evidence is, at the very least, unsatisfactory in several important respects. He gave one account in his notebook that evening, a very different account in an interview under caution (in which he said that in some respects the account in his notes was wrong) and another in his evidence before this court. To give the most glaring example, he gave evidence to me that Basil Khan was never placed on a seat. He was in a position to know as he was sitting behind Sergeant Wilson on Seats H and I, and whatever was happening between Basil Khan and PC Jones was happening immediately to his right. Yet in an interview under caution in 2008 he described in detail how Basil Khan was required to sit on seat F. He told me in evidence that he had said it because he had got muddled. I disagree. This is not a case of slips being made in recollection. Either that account given in interview under caution in 2008 or the one he gave me was a deliberate lie. I am satisfied that the lying account was the one he gave to me, which seemed to me to be deliberately devised to counter Basil Khan’s case that he was hit while on the seat, and to seek to support his colleagues.[294]I also reject his account of his comment about Basil Khan thinking he owned the Edgware Road,which invited the Court to believe that he would just say that as a way of informing others of a piece of information, rather than as something said, as it I find it obviously was, to expose Basil Khan to ridicule.[295]Having seen and observed Mr Kitchener, I am convinced that he was lying about what happened to Basil Khan, and doing so because he knew that PC Jones and Sergeant Wilson had mistreated Basil Khan.As I have observed he was put in a very difficult position, witnessing violence by fellow officers (including his Sergeant) within a short time of his joining the Unit. But my sympathy for him does not permit me to overlook what I find to be his false evidence.[296]I make it plain that there is one aspect of PC Onwugbonu’s account which I do not accept, which is that the attack on Basil Khan continued for any significant time after the van arrived at the Police station. It is not consistent with the CCTV footage. However what is beyond argument is that PC Jones, without interference from Sergeant Wilson, and with the cooperation of PC Kitchener, deliberately made Basil Khan kneel in handcuffs in the van, when it was quite unnecessary to do so. He could and should have been put in the seat on the carrier, and on arrival at Paddington Green that was an even more obvious thing to do, when there was not the slightest risk of escape. If it is true that they did not know he was only 16 years old, and they had thought he was (say) 20 years old that was still an entirely unnecessary course to pursue. That is consistent with the idea that there was an intentional humiliation of Basil Khan. That matter alone is strong reason to disbelieve the evidence of Messrs Jones, Wilson and Kitchener that they acted properly to Basil Khan throughout.[297]I have set out above the other evidence called by the Third Parties about the Claimants. Leaving aside the patently inadmissible evidence of PC Thomas, one then has evidence from Sergeant Burger, PC Davis, PC Brown and PC Arno.[298]I have already set out my views about Sergeant Burger’s evidence about Omar Mohidin. As to PC Davis and PC Arno’s evidence about Basil Khan, they describe someone who took the opportunity to taunt the police when stopped. It does not say much for his wisdom, common sense or judgement, but it does not begin to undermine his account of what happened. If anything, those statements are consistent with his having been attacked by PC Jones and his taking steps to establish it. As to the only surnamed PC Brown, his evidence takes one nowhere. Basil Khan’s case was not that he had beaten up six officers, but that he had been beaten up.[299]So far as the Defendant’s witnesses are concerned, I accept their evidence in its entirety. Inspectors Wilkinson and Cruickshank were both straightforward careful witnesses. The evidence from the CCTV transcript of what occurred when Inspector Cruickshank went to Basil Khan’s cell puts the end to any idea that Basil Khan was somehow informed of what PC Onwugbonu had said, and decided to latch on to it, and Mr Hardy QC was wise to abandon any argument of any collusion. It makes it very difficult indeed to accept that Basil Khan’s evidence of what occurred is manufactured.[300]Given those matters, and bearing in mind all the matters placed before me by Mr Hardy, I now stand back and ask whether there is anything in the evidence of PC Mark Jones, Sergeant Wilson and PC Giles Kitchener which should cause me to disbelieve the evidence of PC Onwugbonu about what occurred to Basil Khan. While, given the CCTV film, I cannot accept his evidence about PC Jones continuing to hit Basil Khan after the van had arrived at Paddington Green, I accept the other parts of his evidence. I regard the evidence of the three officers mentioned about the events in the van as incapable of belief for the reasons I have given. I have then considered why the lies were told. I am quite satisfied that PC Jones lied to conceal his own wrongdoing, while Sergeant Wilson lied partly to conceal his own wrongdoing, but also to conceal that of PC Jones. The unfortunate PC Kitchener lied to conceal the wrongdoing of both. I also find that PC Jones’ account to Sergeant Wilkinson was also deliberately padded out with false allegations. All three have lied about what occurred once Basil Khan was put in the van. Having found that PC Mark Jones has lied, I can place no weight on his evidence so far as Omar Mohidin is concerned. I accept the accounts of Omar Mohidin and PC Onwugbonu.

O Findings of fact on liability, and conclusions on liability

[301]I reach the following conclusions, based on the evidence placed before me. As it is accepted that force was used on Hegazy and Khan, and that they were detained, it is for the Defendant to show on the balance of probabilities that the use of force was justified, and that he was lawfully arrested and then kept in detention for the period in question. In Omar Mohidin’s case, where the question of his detention is disputed, the burden of proof lies on him to show that he was detained on the balance of probabilities. As will become apparent, my conclusions do not depend on the incidence of the burden of proof.[302]I am satisfied that this incident started as the TSG carrier was driving southwards on Edgware Road. I find that PC Jones sawone of the youths in the group mouth something towards the TSG unit, and make aggressive and obscene gestures, as it travelled southwards. The conduct of the youths had been seen as a challenge to the authority of the Police. I accept that the youths had engaged in conduct which amounted to a public order offence (under section 4 Public Order Act 1986). The view was taken that the van should follow them, although as it made its way back up the Edgware Road, three at least of its occupants thought that it was not a sensible use of police resources. However Sergeant Wilson was persuaded by PC Jones that it was justified.[303]Meanwhile the group containing the claimants had visited at least one store, and Ahmed Hegazy had acquired a bottle of alcohol. I find that it was a bottle of Smirnoff Ice rather than Smirnoff vodka. Whether it was or not, only a nip of it had been drunk, moments before the Police arrived. I find that it had no effect on Ahmed Hegazy’s conduct. I also find that there is no evidence that any of the youths was so affected by cannabis consumed that day to the extent that it affected their actions that afternoon.[304]When the van eventually came across the group, some minutes later, while Sergeant Wilson and others started off by talking to some of those involved, PC Jones rapidly became involved with the person whom he said he had seen making gestures and mouthing obscenities. I am satisfied that PC Jones confronted Omar Mohidin, and pulled him into the van, where the tinted windows made it difficult for anyone outside to see or film what was happening. I reject as absurd the idea that Omar Mohidin asked to go into the van. I find that he did dislike the Police, and he knew that he had made obscene gestures. There is no evidence that he had any cannabis or other drugs on him. He had not the slightest reason to agree to get into the van with the officer, out of sight. It is noteworthy that, whereas others engaged with the youths by talking to them on the pavement, within a very short time PC Jones had got Omar Mohidin into the van. I find that PC Jones wanted to bring the message home to Omar Mohidin that conduct of the kind he had engaged in would be met with a vigorous response. But he did it in quite the wrong way. The fact is that PC Jones grossly overreacted to what had occurred earlier, and wanted to intimidate Omar Mohidin, rather than dealing with it in the more measured way which the law and society expect of a policeman. If he had dealt with it in that measured way, he had a choice; either arrest him outside the van for a public order offence, or speak to him outside the van about his conduct. He chose neither. He chose to intimidate him, and to do so out of public gaze, and away from the apparently ubiquitous mobile phone cameras. I am wholly satisfied that Omar Mohidin was forced into the van, and then abused and sworn at in the van by PC Jones in a threatening, intimidating and very aggressive manner. Part of the abuse was racist. I accept Omar Mohidin’s account of what was said. He was still present in the van when Ahmed Hegazy was brought in, but was then told to leave by PC Jones. I do not find that he was handcuffed or struck, but he was undoubtedly subjected to battery when forced into the van, and was falsely imprisoned for a few minutes.[305]Before dealing with my findings on what happened with regard to Ahmed Hegazy, it is necessary to set out the legal framework which applies. Section 2 of the Police and Criminal Evidence Act 1984 (“PACE”) reads, insofar as is relevant: “2 Provisions relating to search under section 1 and other powers. (1)…………………………… (2) If a constable contemplates a search, other than a search of an unattended vehicle, in the exercise—(a) of the power conferred by section 1 above; or(b) of any other power…………………..— (i) to search a person without first arresting him; or (ii) to search a vehicle without making an arrest, it shall be his duty, subject to subsection (4) below, to take reasonable steps before he commences the search to bring to the attention of the appropriate person— (i) if the constable is not in uniform, documentary evidence that he is a constable; and (ii) whether he is in uniform or not, the matters specified in subsection (3) below; and the constable shall not commence the search until he has performed that duty. (3) The matters referred to in subsection (2) (ii) above are— (a) the constable’s name and the name of the police station to which he is attached; (b) the object of the proposed search;(c) the constable’s grounds for proposing to make it; and(d) ………………………………………………………………….[306]It applies to a search under section 23 of the Misuse of Drugs Act1971. The Courts have emphasised that the duty to inform the person to be searched the matters set out in section 2(3) is a precondition of a lawful search; see Osman v Southwark Crown Court [1999] 163 JP 735, R v Bristol [2007] EWCA Crim 3214, and B v DPP [2008] EWHC 1655. It is worth considering the judgement of Blake J in the B v DPP case, with which Moses LJ agreed. It contains some parallels to the current case. B, the Appellant, was convicted by the Youth Court of the offences of obstructing a police constable in the execution of his duty, and using threatening or abusive words or behaviour contrary to section 4 of the Public Order Act. The justices found that on 5 May 2007 a police constable was on plain clothes patrol in the company of two other police constables, when he came across the appellant from whom there was a strong smell of cannabis and whose eyes were glazed. He had reasonable grounds to suspect that an offence under the Misuse of Drugs Act 971 was being committed.[307]The justices found that the constable introduced himself and informed the appellant that a search under section 23 of the Misuse of Drugs Act 1971 would be carried out and the reason for so doing. It was common ground before that court that by "introduction" was meant the giving of his name and police station as required by statute. Equally, the justices found that he did not show the appellant a warrant card or any other form of documentary evidence that he was a police constable. It was said that the appellant knew the police constable from previous experience.[308]The justices found that the appellant immediately put his hands into his pockets. The police constable then grabbed the appellant's hands, fearing he was reaching for a weapon or about to conceal drugs. He searched him and told him what he was doing, and that he would be entitled to a copy of the search record. The appellant resisted physically and verbally, while the appellant was continually shouting and making threats of violence to the officers. His left wrist was handcuffed. Another officer told him to remove his hand from his pocket. The appellant refused, and he threatened to stab the officers present. He was handcuffed, arrested, cautioned for both offences and taken to the police station. The magistrates found that the search of the appellant was lawful notwithstanding an admitted failure to comply with the Police and Criminal Evidence Act Code of Conduct. They concluded that the officer had taken reasonable steps to comply with his duties under section 2(2) (b) of the Police and Criminal Evidence Act 1984.[309]Blake J stated at [9]- [19]:
“9 It is therefore clear from the statute that it is the duty of the constable, if he is not in uniform, before he commences the search to take reasonable steps to bring to the attention of the appropriate person documentary evidence that he is a constable. A search conducted in breach of this duty cannot be a lawful search, and therefore resistance to such a search would be lawful and cannot constitute the offence of obstruction of a constable in the execution of his duty. 10 The justices found in their case that the search was lawful, but in their recitation of the evidence, they did not record any evidence of an attempt to produce evidence that was frustrated by the appellant's actions. 11 Miss Stevens, who appears for the respondent……., submitted that Parliament has not required that the warrant card, or indeed any other documentary evidence, be produced in every case, and it is sufficient if the officer has taken reasonable steps to produce it. I accept that submission. There may be cases when physical resistance from the appellant prevents the process of production of documentation being complete before there is a physical taking hold of a person in order to search them. 12 However, I reject (1) any submission that it can be inferred on the present facts that the officer was about to produce the warrant card but had been prevented from so doing, and (2) generally that performance of the duty for uniformed officers, namely informing a person to be searched of the name of the officer and police station concerned, was a sufficient part-performance of the separate and additional duty for plain clothed officers. In my judgment, that distinct duty is the more important duty when an officer is in plain clothes. The uniformed officer has his uniform to speak for him or her as the source of his or her authority and status as a constable. The plain clothed officer needs to produce the warrant card to start in the same position as the uniformed officer. 13 Although there is no reference in the statute to which order the duties are to be performed in, this consideration would lead me to believe that, in the normal case, the card should be produced before or at least at the same time as the verbal introduction in order to found a legitimate search. It is notable that the authors of the Codes of Practice, who are well experienced in the practical realities of policing, provide as follows: "Code of Practice A 3.9. 3. 9 Officers not in uniform must show their warrant cards ..." 14 It is also notable that in the case of Mustapha Osman v Southwark Crown Court[1999] 163 JP 735 (1 July 1999) in the judgment of Sedley LJ there has been the suggestion that a convoluted oral explanation might take longer and might be more likely to interfere with the duties of preventing crime and searching, and that a convenient alternative would be the production of a piece of paper with the requisite information contained on it. 15 In the present case, there was no evidence, or certainly no evidence recited in the justices' case, as to the following matters: (1) why the card was never produced or attempted to be produced; (2) that PC Townsend ever intended to produce the card but was prevented from doing so; (3) that he explained at any time that he was intending to do so when his hands were free; (4) that he did so when the appellant had been restrained and handcuffed with the assistance of other officers. It was equally plain from the facts found that before and during the search the officer was able to give a lot of oral information about who he was and what he was intending to do. 16 It is clear from the line of authorities, beginning with the case of Osman and continuing through to the case of R v Christopher Bristol[2007] EWCA Crim 3214 (4 December 2007), as well as the plain words of the statute, that compliance with the statutory requirements is a precondition of a lawful search. It makes no difference that the constable is said to have been known to the person being searched. The earlier decision in the case of Forde [1985] 81 Crim App R 19, to which reference was made by Miss Stevens, preceded the statutory language with which we are concerned. It cannot assist in the kind of case that is concerned with whether those preconditions have been complied with. Of course, as already acknowledged, where the evidence demonstrates that the constable did take reasonable steps to produce the documentary evidence but was prevented from doing so, the duty may have been complied with, but there is no evidence to that effect in this case. 17 In my judgment, the justices have misunderstood the mandatory requirements for a lawful exercise of the power of search, and on the facts found by them, could not have concluded that the power had been lawfully exercised. The consequence is that the search was unlawful, the officer was not acting in the execution of his duty when conducting it, and the appellant was entitled to use reasonable force to resist the search. 18 The justices posed three questions for the opinion of the High Court: "(1) Was the court entitled to find that notwithstanding the failure of PC Townsend to produce documentary evidence to the appellant, that he had taken all reasonable steps to comply with his duty as provided by section 2(2)(b)(i) of the Police and Criminal Evidence Act and the Code of Conduct?" The answer is "no", in my judgment. "(2) If not, did that failure render the search unlawful?" In my judgment, the answer is "yes". "(3) If the search and use of force on the appellant were unlawful, can the appellant properly be convicted of an offence pursuant to section 4(1) (a) of the Public Order Act 1986?" In my judgment, the answer is "yes", but only if the conduct used in resisting any unlawful force was excessive. (My italics) 19 Applying those answers to the facts of this case, it must follow that the conviction for obstruction of the police must be quashed and an acquittal substituted. The appellant was entitled to use reasonable force to resist the search, and conviction for threatening words or behaviour could be founded on reasonable force or threat of force to resist such a search. Since the justices appear to have included the appellant's resistance to the search as at least part of the basis of the conviction for threatening words, the conviction cannot stand. However, the case stated also recites that the justices found that the appellant threatened to stab the officer with a knife. It is strongly arguable that use of such words could be excessive force and constitute the offence of threatening words and behaviour, irrespective of whether the officer was acting in the execution of his duty or not. It is therefore common ground that we should quash the conviction of the public order offence as well, but in the case of that offence, and that offence only, remit the charge to the justices for further consideration of this issue. Of course, it will be open to the CPS to review whether this is a prosecution they would wish to pursue in all the circumstances of the case. But to this extent, this appeal is allowed.”
[310]I should refer also to section 24 of the Police and Criminal Evidence Act 1984as amended by the Serious Organised Crime and Police Act 2005, which was in force at the date of this incident. “24 Arrest without warrant: constables(1) A constable may arrest without a warrant— (a) anyone who is about to commit an offence; (b) anyone who is in the act of committing an offence; (c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence; (d) anyone whom he has reasonable grounds for suspecting to be committing an offence.(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.(3) If an offence has been committed, a constable may arrest without a warrant— (a) anyone who is guilty of the offence; (b) anyone whom he has reasonable grounds for suspecting to be guilty of it.(4) But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.(5) The reasons are— (a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name); (b) correspondingly as regards the person's address; (c) to prevent the person in question— (i) causing physical injury to himself or any other person; (ii) suffering physical injury; (iii) causing loss of or damage to property; (iv) committing an offence against public decency (subject to subsection (6)); or (v) causing an unlawful obstruction of the highway; (d) ………………………… (e) …………………………. (f) …………………………...(6) …………………………….......”[311]Uttering a threat to kill (section 16 Offences Against the Person Act 1861) is an offence, as are unlawful wounding or wounding with intent (sections 20 and 18 of the same Act respectively). It follows from the above that if the search of Ahmed Hegazy was unlawful, then he was entitled to use or threaten reasonable force to resist it. Equally, if PC Brown taking hold of him or seeking to restrain him was unlawful because of the deficiencies in the stop and search procedure, Hegazy was entitled to use or threaten reasonable force to resist it. But if PC Brown considered that, by the threat to draw blood, he was threatening to commit an offence by using or threatening unreasonable or excessive force which could lead to his being injured, then he was entitled to exercise his powers under section 24 of the Police and Criminal Evidence Act 1984 (as amended) to arrest him. In this case the tests in subsections 24(1), (4) and (5) (c) (i) are satisfied.[312]I find that Ahmed Hegazy was approached by PC Brown outside the van. His bottle of Smirnoff Ice was removed from him. PC Brown saw him move his hand into his trousers, and formed the reasonable suspicion that he was in possession of controlled drugs. He started the procedure for carrying out asearch under section 23 of the Misuse of Drugs Act1971 and section 2 of the Police and Criminal Evidence Act 1984(“PACE 1984”), but did not complete it, in that he had not said who he was, or what station he was from (see re-examination and section 2(2) and (3) of PACE 1984). It follows that the search was therefore unlawful. However when told that he was going to be searched, Ahmed Hegazy lost his temper and threatened him that he would draw blood. I find that PC Brown was entitled to form the view that Ahmed Hegazy had uttered a threat to kill. Even if it fell short of that, it amounted to a stated intention to commit an offence under sections 18 or 20 of the 1861 Act. I find that, on the facts here, drawing blood would be an unreasonable and excessive use of force in response to an unlawful search. Given the words that had been used by Ahmed Hegazy, I am satisfied that by virtue of that, PC Brown was entitled to take steps to restrain him so that no offence would be committed. He was then lawfully detained. I find that he resisted arrest, which explains why he was only handcuffed to the front. PC Brown, PC White and Sergeant Wilson placed him on the floor of the van. He was partly on his side and partly facing upwards. I find that he was not assaulted in the van. I find that such injuries as he sustained came from the struggle of getting him into the van. I was impressed by the evidence from PC White that he was aware that he and the other officers were being filmed. That confirms me in my view that Ahmed Hegazy’s evidence is not to be accepted. I reject Ahmed Hegazy’s evidence that he was subjected to any form of racist abuse.[313]I find that he was not falsely imprisoned. I find that his strip search at the Police Station was justified given the nature of the threats he had made. I find that he was released as soon as was reasonably practicable.[314]I find that Basil Khan did make gestures at the van as it set off after the arrest of Ahmed Hegazy, and shouted abuse at it, such as “Racist Fucks.” I accept that his conduct could have justified his arrest for a public order offence, but I do not accept that he made any threats to kill or injure any police officer. It is significant that it was again PC Jones who reacted to what he did, seeing it as insulting and confrontational behaviour, and getting out of the van. Within the van, I am abundantly satisfied that he was then hit by PC Jones and abused, including racist abuse, and then forced to the floor and handcuffed, where he was left to kneel, in a manner intended to further humiliate him. I also find that PC Jones grabbed him around the neck, making it difficult for him to breathe.[315]His injuries, such as they were, are consistent with his account up to that point. He had been hit, but not hard. I do not accept any of the evidence which alleges that Basil Khan struck PC Jones. On the basis of Basil Khan’s evidence and that of PC Onwugbonu, I also accept that Sergeant Wilson struck him and abused him. He did so out of perhaps understandable irritation, and as what would in past days have been known as a “clip round the ear” but, what he did was unlawful and an assault. I also find that Sergeant Wilson allowed Jones to hit and scream abuse at him. At the Police Station he again failed to show leadership by permitting Basil Khan to remain handcuffed and kneeling when it was quite unnecessary to do so.[316]I do not accept that the attack continued after the van had arrived at the Police Station.[317]I therefore find that: i). Omar Mohidin was forced into the van, and thus the subject of a battery, and falsely imprisoned for a few minutes, during which time he was abused verbally by PC Jones, including racist abuse; ii). Ahmed Hegazy was lawfully arrested. Any injuries he sustained were as a result of his unlawfully resisting arrest. He was not assaulted. He was not falsely imprisoned. Ms Gerry expressly conceded that the claim under the Race Relations Act stood or fell with the claims for assault and false imprisonment. I find in any event that he was not the subject of racist abuse; iii). Basil Khan was not lawfully arrested, as he had not uttered threats to kill. He did not make any threats to PC Jones, or assault him, but was abused and struck by Sergeant Wilson, and then struck and abused by PC Mark Jones, who also grabbed him round the neck, causing difficulties in breathing. He was then forced by PC Jones to kneel with his hands in handcuffs behind his back, both within the van en route to the Police Station for about 5 minutes, and then thereafter for about 20 minutes without any justification whatever, but for the purposes of humiliation. Sergeant Wilson chose to allow PC Jones to behave as he did in the van, and was also a party to Basil Khan’s continued humiliation in having to kneel handcuffed in the van. It follows that he was falsely imprisoned until his release the following day. I find that PC Jones used racist abuse towards him. His being strip searched only came about because PC Jones had given false information about the reasons for his arrest. I accept that the Desk Sergeant genuinely thought that he was old enough to be strip searched.

P Evidence, submissions and conclusions on injuries and on issues relevant to damages

[318]I shall deal here with i). a summary of the claims made ii). the evidence of physical injuries iii). the evidence on the claimed subsequent effects iv). the effect of the Crown Court trial of the officers on the Claimants v). Damages for personal injury, false imprisonment, aggravated and exemplary damages. vi). Other claimed heads[319]I shall also include my assessment of the Claim by Ahmed Hegazy had he established liability.

(i) a summary of the claims made

[320]Omar Mohidin‘s case was that he suffered from pain and shock from the indignity of being detained. He contended that he had suffered acute stress disorder for some 3-4 weeks.[321]Basil Khan’s case was that he had been caused fear anxiety and distress as a result of the “brutal and dangerous” assaults by PC Jones and Sergeant Wilson. He alleged that he suffered pain, and reddening of the wrists. He also endured a loss of liberty. He contended that he had suffered Post Traumatic Stress Disorder for about a year.[322]Both Omar Mohidin and Basil Khan also claimed aggravated damages. They claimed that they were detained in full public view, were treated in a high handed and abusive manner by Sergeant Wilson and PC Jones, whose use of a neck hold had placed both of them in fear for their lives during their detention. (This latter part can only relate to Basil Khan). They contended that they had been subjected to racial abuse, and the actions of the officers were motivated by reason of their ethnic or national origins, which added to their humiliation and dismay.[323]Basil Khan claims that the allegation of his uttering threats to kill was concocted, with the result that he was detained overnight and then kept on police bail.[324]Both then allege that the fact that they were cross examined during the officers’ trial at the Crown Court by counsel who accused them of fabricating their evidence, and the fact that other officers attended their trial, led to further humiliation. Further they refer to the fact that two Inspectors gave what they contend was false character evidence at the trial when called by the Defence.[325]They refer to the fact that the Defendant had not admitted liability for the acts of his officers.[326]They then make a claim in exemplary damages, on the basis that the conduct of the officers was oppressive, arbitrary and unconstitutional. It is also alleged that the failure to act on the complaints of others who are black or Asian about the conduct of Sergeant Wilson and PC Jones, including the complaints of Babar Ahmad, justifies an award.[327]Ahmed Hegazy alleges that he was subjected to a terrifying and humiliating ordeal, and feared for his own safety and that of Basil Khan. He says that he suffered bruising to his throat, both arms, left wrist and behind his right ear, scratches to his left shoulder and swelling over both shins. He contends that he has since suffered from Post Traumatic Stress Disorder, which continues, and which requires continuing treatment. He claims £ 14,858 special damages for 48 sessions of psychiatric treatment for 12 months.[328]He too claims aggravated damages, relying on what he alleges was a grave affront to his personal dignity, a terrifying and degrading ordeal, the racially motivated behaviour of the officers, the failure of all of them save PC Onwugbonu to intervene or report the incident, the fabrication of an account which the officers knew to be untrue, the uncertainty of not knowing for a fortnight whether he would be charged with the offence of threatening to kill a police officer, the lack of an apology, the conclusion of the original DPS investigation that reasonable force had been used to restrain him, and that the original stop and search was lawful.[329]He takes the same point about the trial at Kingston Crown Court. He also states that the Defendant was at fault for failing to act on the complaints made by Babar Ahmad and others against PC Jones.[330]He repeats the particulars of aggravated damage in claiming exemplary damages. He also claims damages in excess of £ 50,000 for personal injury and injury to feelings under the Race Relations Act 1976, together with a declaration that the Defendant’s officers had racially discriminated against him. (ii) the evidence of physical injuries[331]Omar Mohidin does not suggest that he suffered any physical injury. I have set out above the evidence on the injuries to Ahmed Hegazy and Basil Khan. I accept Dr Frazer’s evidence on both. Ahmed Hegazy would have suffered some pain from his bruising for a few days. Basil Khan would have recovered from his within a day or two. (iii) the evidence on the claimed subsequent effects[332]All three maintained that they had suffered psychiatric symptoms as a result of what occurred. I had medical reports as follows i). Omar Mohidin : a). For First Claimant: Dr Adrian Lord MBBS MRCPsych: Consultant Forensic Psychiatrist : 29 March 2011 b). For Third to Sixth Parties: Dr Christopher M B Jarman, MA (Oxon) BM, B.Ch., LRCP, MRCS,M.Phil, MRCPsych; Consultant Psychiatrist; 23 November 2014 c). Joint Report by Drs Lord and Jarman: 28th April 2015 ii). Basil Khan : a). For First Claimant: Dr Adrian Lord MBBS MRCPsych: Consultant Forensic Psychiatrist : 29 March 2011 b). For Third to Sixth Parties: Dr Christopher M B Jarman, MA (Oxon) BM, B.Ch., LRCP, MRCS,M.Phil, MRCPsych; Consultant Psychiatrist; 23 November 2014 c). Joint Report by Drs Lord and Jarman: 28th April 2015 iii). Ahmed Hegazy: a). For Third Claimant: Dr Piyal Sen MBBS, DPM, FRCPsych, Dip Forensic Psych, PGCAP; Consultant Forensic Psychiatrist; 31st May 2011, 28th November 2014 b). For Third to Sixth Parties: Dr Christopher M B Jarman, MA (Oxon) BM, B.Ch., LRCP, MRCS,M.Phil, MRCPsych; Consultant Psychiatrist; 8th January 2015 c). Joint Report by Drs Sen and Jarman; 8th May 2015.[333]In Omar Mohidin’s case, he told Dr Lord that PC Jones had handcuffed him, and had been making him stand and sit. He felt terrified, both by that and what was happening to Ahmed Hegazy. He felt helpless, humiliated and drained of confidence and pride. After the incident he did not go back to the Edgware Road for a month, and avoided it. He relived the events and his sleep was disturbed for 3-4 weeks afterwards. His giving evidence at the Crown Court was a stressful experience in which he was fiercely cross examined and accused of being a liar, led to a recrudescence of his symptoms. He had previously wanted to join the Police.[334]Dr Lord’s opinion, based on that history, was that he suffered from Acute Stress Disorder for 3-4 weeks afterwards, as set out in the Diagnostic and Statistical Manual (DSM4) of Psychiatric Disorders, Code 308.3. He considered it highly likely that he had episodes during the investigation and during the Crown Court trial. He considered that in terms of the JSB Guidelines, he had suffered a category D “Minor” post traumatic stress disorder.[335]Dr Jarman adopted an approach to his reports on all three Claimants which, to be frank, was as much one of advocacy as it was expert opinion, although once winnowed of the advocacy it contained much of value. He also trespassed at times into making findings of fact about credibility which should have been left to the court. But his central point in both cases was that Dr Lord depended wholly on the veracity of the respective Claimant, and that there was no evidence independent of him to support the diagnosis.[336]It is important to consider the evidence about Omar Mohidin’s activities after the 1st June 2007. Despite his claims that he avoided the Edgware Road, he accepted that he was stopped there on 7th June 2007, and in Hyde Park on 8th June. His account in cross examination, namely that he had to travel down Edgware Road to get to Oxford Street, is of course true, but this evidence still undermines his account of the effects of the events upon him.[337]I am prepared to accept that at some point he may have wanted to join the Police, but he could not seriously have thought that he could do so after his offending, as set out above.[338]I therefore reject the claim that he suffered Acute Stress Disorder at any stage. I accept that he found the conduct of PC Jones distressing and frightening, but I do not accept that it had any longer term consequences.[339]It follows from the above that the pain, injury and loss of amenity suffered by Omar Mohidin consisted, at most, of his feeling upset for a few days. I shall consider the claims for aggravated and exemplary damages below.[340]So far as Basil Khan is concerned, Dr Lord was informed by Basil Khan that he had been picked on because of his religion. He was distressed and upset, and did not leave his house for a month, because he was scared of the Police. He “did not go to College or socialise or anything.” He would sit at home talking to his mother and both would be crying. He said that he had dreams and nightmares about it. If a police car came on to his estate he would pull the windows, close the curtains and have a sense of breathlessness. He would have dreams, relive the incident and wake up terrified. The nightmares continued for about 12 months.[341]He said that he did not sleep for a week, lost his appetite and increased his consumption of cigarettes. . He first emerged from his parents’ house four weeks after the incident. At the date of the report (March 2011) he remained suspicious and paranoid of the Police, but otherwise the effects of what had occurred had worn off within 18 months of June 2007.[342]Dr Lord considered that he had suffered from hyper-arousal, had re-experienced phenomena and had suffered emotional numbness and de-realisation as a result of post-traumatic disassociation. He concluded that he had suffered post traumatic stress disorder (Code 309.81 in the same Diagnostic Manual) for a year, with some remaining vestigial symptoms of automatic hyper arousal and an exaggerated startle response. He considered that it fell into the Moderate (B) category in the Judicial Studies Board guidelines. He had largely recovered and would have no future disabling symptoms.[343]The effect of Dr Jarman’s report is summarised above. In the joint report Dr Lord was frank that his diagnosis depended on what he had been told by Basil Khan.[344]As it was in the case of Omar Mohidin, it is important to consider the evidence relating to Basil Khan’s activities after the incident. He was stopped on Edgware Road at 5.40 pm on 4th June 2007 in the company of Ahmed Hegazy. He was seen on 23rd June 2007 at 12.15 pm on Hallfield Road, which is about 10 minutes away. He was stopped and searched on Edgware Road on 4th July 2007 at 3.15 and again at 7.00 pm. When these were put to him, he said that he had meant that he did not go out to socialise, and that he would go onto Edgware Road to get a bus to his father’s house in Pimlico.[345]In the light of that evidence, it is plain that Dr Lord had been misled by Basil Khan about the effects of the incident. Further, the evidence of PC Davis and PC Arno shows that Basil Khan had no fear of the Police on the occasions when they spoke to him.[346]I find that Basil Khan was shaken up and distressed by the events in the carrier, but that he was well enough to leave the house, and often, within 3 days. I do not accept that he had the psychiatric symptoms claimed.[347]So far as Ahmed Hegazy is concerned, he described himself to Dr Sen as someone who before the events of 1st June 2007 was “kind and nice, and who liked to joke and laugh a lot.” He also described hobbies of going to the cinema, playing snooker and football. He said that he liked going on holidays and had friends. He said the memories of what had happened on 1st June 2007 kept coming back to him. He now liked to be on his own rather than in groups. He had lost trust in others and now lived from day to day. He would get stressed and distracted easily. He too complained of the effect on him of the trial at the Crown Court.[348]This account was given of his forensic history as at 31st May 2011 “Mr Ahmed Hegazy remembered being arrested a few times before the incident of 1st June 2007. After the incident, he had been involved in a few incidents like fights on the streets, one fight in a hotel with another hotel worker. He remembered being a bit drunk at the time and was charged with common assault. He has also been charged with possession of cannabis…….he also has a conviction for robbery of a mobile phone, for which he received a Community Order and had to have contact with the youth offending team. He has not yet been in prison.”[349]Dr Sen’s opinion was that since the incident he had shown signs and symptoms consistent with Post Traumatic Stress Disorder (“PTSD”). He had experienced intrusive flashbacks, vivid memories, and distress when he encountered the Police. He avoided the company of others, felt emotionally detached from others and could make no plans. He had hypervigilance and difficulties in concentration and sleep, and could get angry easily. They were all classic symptoms of PTSD. The trial at the Crown Court exacerbated these problems. As a result he had given up the B Tech course he was doing at the time of his arrest, and had not felt motivated enough to go back to University, and had lost 4 years of his life. His symptoms were of moderate severity and he also suffered from a depressive disorder. Both were attributable to the events of 1st June 2007. Dr Sen considered that he was in urgent need of psychiatric treatment in the form of anti-depressants and counselling. If he were to have 6 months treatment, there was an optimistic prognosis. His PTSD fell in the moderately severe range in the Judicial Studies Board guidelines.[350]In a further report of 28th November 2014, for which he had examined Ahmed Hegazy at HMP Wandsworth, Dr Sen addressed his medical and prison records. He concluded that he was still suffering from PTSD. He had not engaged in the counselling which Dr Sen had advised him to receive.[351]Dr Jarman wrote his report after seeing Ahmed Hegazy twice at HMP Wandsworth. He wrote a lengthy report. He found Ahmed Hegazy to be an unreliable historian. He noted that within a few days of 1st June 2007, he was attacked by others with baseball bats, which must itself have been frightening. He points out that he had never taken the anti-depressants recommended to him, and had minimised his drug use to Dr Sen. Dr Jarman considered that his low mood, feelings of stress, poor memory, lack of motivation and apathy are all associated with chronic cannabis use, which can also produce symptoms of paranoia. He had failed to accept Dr Sen’s advice to have counselling and take anti-depressants. He rejected the diagnosis of a depressive disorder. He pointed to his criminal history and heavy use of cannabis as causing a low mood.[352]Dr Sen rejects Dr Jarman’s diagnosis, and maintains that appearing in his reports.[353]My conclusions are as follows. Dr Sen’s original report gave a very short account of Ahmed Hegazy’s criminal record. It omitted the two concurrent suspended sentences of imprisonment in 2009. I also find it noteworthy that at no time in that report did Dr Sen ever consider whether the fact that Ahmed Hegazy was continuing to commit criminal offences was relevant to his diagnosis. While his second report addresses adjudications made in prison, and while it deals with the facts of the serious robbery for which he was imprisoned in September 2013 (which I have described above) his only comment on that is this “ the prolonged nature of his mental health symptoms as well as other aggravating features like the increase in the pattern and quantity of his cannabis use and the escalation in the pattern of the offending leading to prison sentences, which would act as further traumatisation experiences, leads me to be more guarded about Mr Ahmed Hegazy’s prognosis.”[354]There is nothing in that passage or elsewhere which seeks to consider whether his carrying out the serious and violent robbery which he did, and which was a joint offence, is consistent with PTSD or a depressive disorder. Given the fact that his description of his symptoms was that he sought to avoid the company of others, that is a very surprising omission, and one which causes me to have grave reservations about Dr Sen’s approach.[355]I prefer Dr Jarman’s opinion. I am quite prepared to accept that Ahmed Hegazy has suffered from low mood and the other symptoms described, but I do not accept that they were caused by PTSD or depressive illness caused by the events of 1st June 2007. He has been a heavy user of cannabis, and had started his criminal activities before the incident in question. It follows that I reject the claim that Ahmed Hegazy suffered PTSD or depression as a result of the incident on 1st June 2007.[356]His claim for special damages would also have failed. It is for the cost of counselling which he has not used, despite repeated advice. (iv) The effect of the Crown Court trial of the officers on the Claimants[357]I must also say something about the events at the Crown Court trial. There can be no doubt at all that being a witness undergoing robust cross examination, in which, as was the case here, each Claimant was challenged on the basis that he was a liar, and was after compensation, can be difficult to deal with. Having sat as a circuit and senior circuit judge for 10 years before my appointment to the Queen’s Bench Division, and having presided over large numbers of criminal trials, I have seen many times the effects which the experience can have on even the most apparently robust witnesses.[358]But it is the right of any Defendant in a criminal trial to seek to challenge the evidence given against him which he disputes. I asked Ms Kaufmann during her opening and closing submissions how the lawfully conducted defence of a man charged with serious offence could amount to tortious conduct. Ms Kaufmann suggested that the Defendant was somehow vicariously responsible. But that assumes that the conduct was tortious, and that it was carried out in the course of the employee’s employment. The police officers against whom the Claimants had made allegations, were being prosecuted on the basis that those allegations were true. The Defendant Commissioner cannot be held responsible for the fact that the accused officers were robustly defended. Further, their appearance in court as Defendants in a criminal trial was not in the course of their employment. Similarly, the Defendant Commissioner had no standing whatever to prevent any witness being called at the trial. It follows in my judgement that the events at the criminal trial cannot be taken into account in any sense in the assessment of damages, unless they produced a renewal or exacerbation of any psychiatric effects already endured, which were caused by previous actionable tortious conduct. Such renewed effects would then be relevant, not because the actions which caused them to reoccur were tortious, but because the chain of causation from the original tortious infliction of harm had not been broken.[359]That being so, it is strictly unnecessary to go into arguments about the immunity from actions in tort in respect of evidence given in court, or in respect of the conduct of a criminal defence by counsel (on which see the very recent discussion in South Wales Police v Daniels & Ors [2015] EWCA Civ 680 per Lloyd-Jones LJ at [27]-[48]). However I do consider that it would be a very novel approach to give a cause of action in tort, not to a Defendant alleging that the prosecution is malicious or amounts to misfeasance in public office, or to a Defendant complaining that his advocate was negligent, but to a witness who simply alleges that those who challenged his account in court did so trenchantly. Further, the fact that Inspector Allmey and Inspector Davis gave evidence whose veracity is challenged, cannot be the subject of an action in tort - see Darker v Chief Constable of the West Midlands Police[2001] 1AC 435 and South Wales Police v Daniels & Or at [42]. That being so, it is another reason why I cannot accept that Ms Kaufmann’s argument that the Defendant Commissioner was vicariously liable for his officers’ conduct at the trial is of any substance. Vicarious liability is only relevant if there has been an actionable tort: but there was none so far as the Crown Court trial was concerned. v) Damages for personal injury, false imprisonment, aggravated and exemplary damages.[360]I had great assistance from all counsel, for which I am grateful, on this topic. All agreed that three heads were to be considered: i). Basic: this will include damages for false imprisonment and for the physical effects of any assault ; ii). Aggravated damages; iii). Exemplary damages.[361]I was referred to the guidance on basic damages for false imprisonment in the leading case of Thompson and Hsu v Commissioner of Metropolitan Police [1997] EWCA Civ 3083[1998] QB 498 (CA) at pages 514D-516B. That gives a starting point (in February 1997 values) of £ 500 for the first hour in a “straightforward case of wrongful arrest and imprisonment”. While an additional sum is to be awarded after the first hour, it is to be on a reducing scale so that it keeps the damages proportionate to those paid in personal injury cases, and gives a higher rate of compensation for the initial shock of the arrest. 24 hours of being wrongly held in custody would give an award (in February 1997 values) of about £ 3000. Those figures, bearing in mind the 10% uplift in Simmons v Castle[2012] EWCA Civ 1039[2013] 1 WLR 1239 give current day figures of about £ 910 and £ 5500 respectively.[362]So far as Omar Mohidin is concerned, he was detained for about 5 minutes. Basil Khan was detained until 13.25 pm the following day, or 20 minutes under 20 hours. During that time he had also been strip searched. Ahmed Hegazy was detained until 3.40 am, or for about 10 hours. He too was searched, although he was not fully naked.[363]Dealing with false imprisonment as a basic award, I would value the claims as follows: i). while Omar Mohidin was not detained for long, I place weight on the fact that it is the initial shock that attracts the higher rate of award, but it was still a very short period. The Claimant and Defendant’s counsel submitted that I should value the basic award for false imprisonment at £ 200. I agree. ii). Basil Khan was detained for a substantial period. I must have regard to the fact that he was strip searched. It was common ground that it was a breach of the PACE Code of Practice C (Annex A paragraph 11) to strip search a 16 year old, but as noted already, the custody sergeant mistakenly but reasonably believed that he was older. Ms Kaufmann put the figure at £4500, Mr Beggs QC at £ 4200, and Mr Hardy put it at £ 4000 for the whole period of detention. I agree with Ms Kaufmann’s suggested valuation. I value his basic award at £ 4500. He is also entitled to damages for assault. I have found that he suffered some minor injury, described above, which would not have affected him after 7 days at most. Applying the Judicial College Guidelines to his injuries I value his award for pain suffering and loss of amenity at £ 250. iii). So far as Ahmed Hegazy is concerned, were I to have found his claim proved, I would have valued it as follows. He was detained for 10 hours, which included a search. I value his basic award at £3000. As to his injuries, they were painful, but the effects would have worn off within 7 days. Applying the Judicial College Guidelines to his injuries I value his award for pain suffering and loss of amenity at £500.[364]I turn now to the question of aggravated damages. It is necessary to return to the guidance in Thompson and Hsu to address the relationship between basic damages, aggravated damages, and exemplary damages. At page 516B-G Lord Woolf MR said:
“(8) If the case is one in which aggravated damages are claimed and could be appropriately awarded, the nature of aggravated damages should be explained to the jury. Such damages can be awarded where there are aggravating features about the case which would result in the plaintiff not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award. Aggravating features can include humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest or the prosecution which shows that they had behaved in a high handed, insulting, malicious or oppressive manner either in relation to the arrest or imprisonment or in conducting the prosecution. Aggravating features can also include the way the litigation and trial are conducted. [The aggravating features listed take account of the passages in the speech of Lord Reid in the case of Broome at 1085 and Pearson LJ in McCarey v Associated Newspapers Limited[1965] 1 QB 86 at 104. (9) The jury should then be told that if they consider the case is one for the award of damages other than basic damages then they should usually make a separate award for each category. [This is contrary to the present practice but in our view will result in greater transparency as to the make up of the award]. (10) We consider that where it is appropriate to award aggravated damages the figure is unlikely to be less than a £1,000. We do not think it is possible to indicate a precise arithmetical relationship between basic damages and aggravated damages because the circumstances will vary from case to case. In the ordinary way, however, we would not expect the aggravated damages to be as much as twice the basic damages except perhaps where, on the particular facts, the basic damages are modest. (11) It should be strongly emphasised to the jury that the total figure for basic and aggravated damages should not exceed what they consider is fair compensation for the injury which the plaintiff has suffered. It should also be explained that if aggravated damages are awarded such damages, though compensatory are not intended as a punishment, will in fact contain a penal element as far as the defendant is concerned. (12) Finally the jury should be told in a case where exemplary damages are claimed and the Judge considers that there is evidence to support such a claim, that though it is not normally possible to award damages with the object of punishing the defendant, exceptionally this is possible where there has been conduct, including oppressive or arbitrary behaviour, by police officers which deserves the exceptional remedy of exemplary damages. it should be explained to the jury: (a) that if the jury are awarding aggravated damages these damages will have already provided compensation for the injury suffered by the plaintiff as a result of the oppressive and insulting behaviour of the police officer and, inevitably, a measure of punishment from the defendant's point of view; (b) that exemplary damages should be awarded if, but only if, they consider that the compensation awarded by way of basic and aggravated damages is in the circumstances an inadequate punishment for the defendants. (c) that an award of exemplary damages is in effect a windfall for the plaintiff and, where damages will be payable out of police funds, the sum awarded may not be available to be expended by the police in a way which would benefit the public. [This guidance would not be appropriate if the claim were to be met by insurers]. (d) that the sum awarded by way of exemplary damages should be sufficient to mark the jury's disapproval of the oppressive or arbitrary behaviour but should be no more than is required for this purpose. (13) Where exemplary damages are appropriate they are unlikely to be less than £5,000. Otherwise the case is probably not one which justifies an award of exemplary damages at all. In this class of action the conduct must be particularly deserving of condemnation for an award of as much as £25,000 to be justified and the figure of £50,000 should be regarded as the absolute maximum, involving directly officers of at least the rank of superintendent. (14) In an appropriate case the jury should also be told that even though the plaintiff succeeds on liability any improper conduct of which they find him guilty can reduce or even eliminate any award of aggravated or exemplary damages if the jury consider that this conduct caused or contributed to the behaviour complained of.”
[365]In Rowlands v Chief Constable of Merseyside[2006] EWCA Civ 1773[2007] 1 WLR 1065 Moore-Bick LJ said at [26] “It is now generally recognised that an award of aggravated damages is essentially compensatory in nature, notwithstanding the fact that it may have a punitive effect by increasing the overall amount the defendant is ordered to pay. That was explicitly acknowledged by Lord Woolf M.R. in Thompson as one can see from the passages cited earlier. Whether damages awarded to compensate the claimant for distress, humiliation and injury to feelings are treated as part of the basic damages (as Thomas L.J. suggested in Richardson v Howie[2004] EWCA Civ 1127, (unreported, 13th August 2004)) or are separately identified by the name of aggravated damages, the important factor to bear in mind is that they are primarily intended to be compensatory, not punitive. It follows that any injury for which compensation has been given as part of the award of basic damages should not be the subject of further compensation in the form of an award of aggravated damages. However, the distinction between basic and aggravated damages will continue to have a part to play as long as the right to recover for intangible consequences such as humiliation, injury to pride and dignity as well as for the hurt caused by the spiteful, malicious, insulting or arrogant conduct of the defendant attaches to some causes of action and not others.”[366]Are there features in this case which should aggravate the basic award in line with the principle set out above? In Omar Mohidin’s case, the way he was dealt with was not only humiliating, and involved the implied threat of violence, but was patently intended to be so. It was also insulting in a particularly unpleasant way, because, as I have found, he was racially abused. Ms Kaufmann sought to persuade me that the fact that PC Jones fabricated evidence and lied at his trial, was also an aggravating feature. But the entries in his notebook (which must be taken to be untrue) had no effects on Omar Mohidin at all, who was not arrested or charged. PC Jones’ evidence at trial was not part of the events on 1st June 2007. Further, it must be remembered that at trial, PC Jones was being prosecuted after an investigation by the DPS of the Metropolitan Police. It cannot be right that the Defendant can be said to have caused additional harm to Mohidin by the fact that PC Jones denied the allegations against him, made by the Defendant.[367]However it is right to say that after receipt of the letter before action from the solicitors from Omar Mohidin and Basil Khan, on 9th September 2011, the Directorate of Legal Services of the Defendant replied, resisting the claim. However that letter expressly eschewed making any positive case, but chose instead to make points about the credibility of the Claimants. The Defence and Amended Defence adopted the same approach.[368]Mr Beggs QC sought to persuade me that the level of aggravated damages should be mitigated by the fact that Omar Mohidin had convictions and had been in dealings with the Police before. As at 1st June 2007 he had no convictions. On reflection, I am unpersuaded that that should count as a factor in mitigation of damage. It bears with it the implication that the racist humiliation of a youth is somehow less serious if he has come to the attention of the Police before. This is a classic case of a police officer failing to exercise proper judgment or discretion and allowing his temper to get the better of him, and in a particularly unpleasant way. Nor do I consider that Omar Mohidin’s award should be reduced because of any conduct on his part. By the time the TSG carrier had arrived at the junction of Edgware Road and Sussex Gardens, some time had elapsed since the gestures and shouting by Omar Mohidin. He did nothing whatever when approached by PC Jones which justified what occurred next.[369]I do not consider that the basic award provides adequate compensation for the racist humiliation inflicted on Omar Mohidin. I am satisfied that there should be an award of aggravated damages, or on that alternative basis canvassed in Rowlands an award for distress, humiliation and injury to feelings . I turn now to its valuation. Ms Kaufmann referred me to an employment case: Vento v Chief Constable of Yorkshire Police No 2 [2002] EWCA Civ 1871 [2003] Po LR 171 [2003] ICR 318[2003] IRLR 102. In that case at [7]- [10] Mummery LJ, giving the judgement of the court, set out the facts in outline:
“Outline Facts 7. Ms Vento was born on 15 February 1967. She had a long held ambition to join the police force, but she was unable to do so before the height requirements were relaxed in 1995. On 11 December 1995, at the age of 28, she joined the police force as a probationary constable and began training to be an ordinary police constable. At that time she was married with 3 children. Initially she had the support of her husband, though he did not expect her to succeed in combining her responsibilities as a mother with those of a trainee police officer. The couple separated in 1996 and they were divorced in 1999. 8. In general, Ms Vento made good progress during her first year in her paperwork and in her work relationships. But in the first half of 1997 a series of incidents occurred when fellow police officers criticised her conduct, her personal life and her character in an unwarranted, aggressive and demoralising manner. The treatment was found to be less favourable than a hypothetical male officer would have received in the same circumstances. The tribunal inferred that the less favourable treatment was on the ground of her sex. 9. At first she coped well with the situation and with the effects of the recent breakdown of her marriage. On 12 May 1997, however, she was diagnosed as clinically depressed. She was given medication. She continued working until July 1997. She then went off work sick and was absent for 3 months. Although still on medication, she returned to work in October 1997. Further incidents of discrimination occurred following which she suffered suicidal impulses. The discriminatory treatment of her contributed to her depression and affected her ability to form relationships. On 8 December 1997 she was dismissed on the ground of alleged lack of honesty and lack of performance. 10. The Employment Tribunal found that Ms Vento did not have a vulnerable personality, which would increase the risk of failing to complete a full career in the police force to the retirement age of 55. It found that she would have successfully completed her probation and qualified as a police constable. It also found that she had limited career prospects. She was only likely to engage in clerical work in the future.”
[370]The Employment Tribunal ordered the respondent Chief Constable to pay a total sum of £257,844 compensation for sex discrimination. Of that total, the sum of £165,829 was awarded for loss of future earnings, calculated on the basis that there was a 75% chance of Ms Vento working in the police force for the rest of her career. The balance of the compensation (£74,000) was awarded for non-pecuniary loss: as to £65,000, for injury to feelings (including £15,000 aggravated damages) and, as to a further £9,000, for psychiatric damage. Interest of £18,015 was also ordered. The Employment Appeal Tribunal upset the awards. It remitted the calculation of loss of future earnings for rehearing by a freshly constituted Employment Tribunal on the ground that there was an error of law in having proceeded on the basis that Ms Vento had a 75% chance of working in the police force for the rest of her career. As to compensation for non-pecuniary loss, the Appeal Tribunal held that the award of £65,000 for injury to feelings (including aggravated damages) was so excessive as to amount to an error of law. The Appeal Tribunal substituted a total award of £30,000 for injury to feelings, to include £5,000 aggravated damages.[371]The Court of Appeal restored the figure for financial loss, substituted for the decision of the Employment Tribunal the sum of £18,000 for injury to feelings, plus £5,000 for aggravated damages, and left the damages for psychiatric injury at £9,000.[372]At paragraphs [65]- [68] guidance was given by Mummery LJ on the bands of compensation for injury to feelings: “Guidance[65]Employment Tribunals and those who practise in them might find it helpful if this Court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury.(i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.(ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.(iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.[66]There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.[67]The decision whether or not to award aggravated damages and, if so, in what amount must depend on the particular circumstances of the discrimination and on the way in which the complaint of discrimination has been handled.[68]Common sense requires that regard should also be had to the overall magnitude of the sum total of the awards of compensation for non-pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damage. In particular, double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage. The extent of overlap will depend on the facts of each particular case.”[373]In 2010, those bands were uprated in Da’Bell v NSPCC[2009] UKEAT 0227_09_2809, [2009] IRLR 19, [2010] IRLR 19so that the top bracket becomes £18,000 to £30,000, the second bracket £6,000 to £18,000, and the third bracket £600 to £6,000. Some further uprating for changes in the value of money will be required- see Roberts v Bank of Scotland Plc (Rev 1)[2013] EWCA Civ 882 at [62] per Jackson LJ.[374]It is worth seeing how Mummery LJ characterised what had occurred to Ms Vento at [63]-[64] “63. In our judgment, taking account of the level of awards undisturbed on recent appeals to the Appeal Tribunal and of the JSB Guidelines, the fair, reasonable and just award in this case for non-pecuniary loss is a total of £32,000, made up as to £18,000 for injury to feelings, £5,000 aggravated damages and £9,000 for psychiatric damage, which took the form of clinical depression and adjustment disorder lasting for 3 years (and against which there was no appeal). We also bear in mind that there was no finding by the Employment Tribunal that the injury to Ms Vento's feelings would continue after the psychiatric disorder had passed. During the period of psychiatric disorder there must have been a significant degree of overlap with the injury to her feelings. 64. It should be understood that the reduction in the amount of compensation is made solely to bring the global award more into line with conventional wisdom on levels of compensation for non-pecuniary loss generally. The reduction does not mean that this Court takes a less serious view than the Employment Tribunal did of the persistent unlawful discrimination suffered by Ms Ventoat the hands of her colleagues in the Police Service, which is expected to set an example of abiding by the law, including the law governing all forms of discrimination.”[375]Ms Kaufmann contends that this case lies towards the lower end of the middle Vento bracket (now worth £7,000 to £12,000 at current prices). Mr Beggs QC submitted that the appropriate award for aggravated damages, if I concluded that one was justified, was a maximum of £ 300. Mr Hardy submitted that the maximum award should be £ 1000.[376]I reject Ms Kaufmann’s approach. In my judgement, there is no comparison to be drawn between Omar Mohidin’s case and Ms Vento’s. Ms Vento had endured discrimination over a substantial period at her work. By contrast, Omar Mohidin had endured racist abuse and threats for a few minutes, albeit that it was direct and aggressive. As I have found, it caused him no significant effects thereafter. I consider that that bears out the fact that reading across between awards for a course of conduct (as in the second Vento band) to a one off occurrence of this kind can be difficult. I do however accept her submission that I should not be constrained by any choice of ratio between the basic award and the overall award including aggravated damages. The gravamen of this incident was not that Omar Mohidin was detained for long or suffered injury. It is that he was humiliated and racially abused by a police officer. In Thompson and Hsu at page 516E-F at Guideline 10, Woolf MR addressed the question of the ratio:
“………We do not think it is possible to indicate a precise arithmetical relationship between basic damages and aggravated damages because the circumstances will vary from case to case. In the ordinary way, however, we would not expect the aggravated damages to be as much as twice the basic damages except perhaps where, on the particular facts, the basic damages are modest.”
[377]This is a case where, on the traditional (aggravated damages) approach, the basic damages are indeed modest. I consider that this is a case where there is no upper limit of the kind described. Indeed, if one adopts the approach of Thomas LJ as he then was in Richardson v Howie[2004] EWCA Civ 1127, as referred to in Rowlands, then the distress to feelings would be treated as part of the basic award. The effect is therefore that one will end up with a proper overall award, whichever route one follows.[378]But I also reject Mr Beggs’ and Mr Hardy’s submissions. In my judgement, the Vento guideline is helpful on the level of award where the Claimant has suffered a one off occurrence, which this was so far as he was concerned. I would put this case towards the lower end of the third bracket, but not right at the bottom. I consider that Omar Mohidin is entitled to an award of £2300 damages in respect of the humiliation and distress he was caused, which on the traditional basis includes both basic and aggravated damages, or on the alternative approach is one of basic damages. His overall compensatory award, inclusive of the award for false imprisonment, is thus one of £2500. I shall address the issue of exemplary damages in due course.[379]So far as Basil Khan is concerned, who was only 16 years old at the time, he endured a wrongful arrest, a blow with some abuse from one officer, and a sustained assault from another, which was accompanied by racist abuse, and included him being grabbed fiercely round the neck, his being pulled on to the floor, and his being made to kneel quite unnecessarily in handcuffs, with the intention of humiliating him. All of that sustained assault and humiliation took place under the eye of the officer in charge, who let it continue. False allegations were made about him on his arrival at the Police Station, which led to him being strip searched. While I have rejected his case on whether he sustained any psychiatric injury, and have concluded that he made a rapid recovery, this is a bad case.[380]Ms Kaufmann drew my attention to those factors. She also reiterated her position about the events at the trial, and also submitted that the Defendant had been at fault in failing to disclose the audio transcript at that trial of the discussion between Inspector Cruickshank and Basil Khan. She complains that the acquittal of the officers was no barrier to the compromising of the claim by the Defendant.[381]She submitted that an award of £ 14,000 to £ 21,000 was appropriate under the middle Vento band. Mr Beggs QC invited me to look to a figure of £ 5000 for aggravated damages. Mr Hardy’s figure was “rather less than” £6000.[382]As in Omar Mohidin’s case, this is one where the basic award is a modest one. I adopt the same approach to paragraph 10 of the guidance in Thompson and Hsu and also refer to the alternative route canvassed in Rowlands of looking at distress to feelings as part of the basic award.[383]I do not accept that the late disclosure of the audio transcript was anything other than an error of the type that often happens with disclosure at criminal trials. Otherwise I accept the general thrust of Ms Kaufmann’s submissions, although not her choice of Vento band. In my judgment, this case lies at the top of the third band. The racial abuse and humiliation visited on Basil Khan, and the physical indignities were serious, but happily did not have any long term effects. It is again a one off occurrence, but a very bad one. Given the change in the value of money since De’ Ball v NSPCC in September 2009 (approximately 20% in RPI terms), I value this element, whether on the traditional or alternative basis in Rowlands, as £7200. That gives an overall compensatory award, including the damages for assault and false imprisonment, of £11,950.[384]I must consider whether that award should be reduced because of Basil Khan’s conduct in approaching the TSG carrier shouting obscenities and making gestures. It was foolish and objectionable, but it did not in any sense justify what happened next. The level of damages which his case attracts is justified because of what PC Jones and Sergeant Wilson then elected to do in the van. I do not consider that the award should be reduced.[385]In Ahmed Hegazy’s case, were he to have established liability, I would approach it as follows. He was falsely imprisoned, and then forced on to the floor of the Police van. It was no doubt humiliating, and was inflicted by police officers. In this case also, I would consider that the basic award of damages for the assault would otherwise be modest. However unlike his fellow Claimants, I am not satisfied that he was the subject of any racial abuse. Subject to arguments about contribution, in my judgement the proper award lies towards the upper range of the third Vento band, whether as aggravated damages or under the alternative approach. I would have valued the aggravated damages at £ 5,000, making a total award, including the basic element, of £8,500.[386]In Ahmed Hegazy’s case, I consider that his decision to struggle so violently led to him being handcuffed, placed on the floor of the van and kept under restraint. If his arrest was unlawful, then that is the cause of what happened to him, but I consider that his excessive reaction and the subsequent restraint of him, led to him sustaining more serious injuries, and greater distress. I would accordingly have reduced his aggravated damages (or if one prefers the Ventoaward for distress to feelings) to £3500, making his award, had I found for him, of £7,000.[387]I shall now address the question of exemplary damages in the light of paragraph 12 of the guidance in Thompson and Hsu. While I accept that this is a case where there is evidence of oppressive behaviour by PC Jones to Omar Mohidin, and by PC Jones and Sergeant Wilson, to Basil Khan, I consider that the awards set out above are not an inadequate punishment for the Defendant.[388]I therefore decline to make any additional award by way of exemplary damages. I would have taken the same approach to Ahmed Hegazy’s case.

Other claimed heads

[389]Ms Gerry accepted that the Race Relations Act claim on behalf of Ahmed Hegazy would add nothing to any award of damages. I have in any event concluded that nothing that occurred to Ahmed Hegazy arose out of any racial discrimination of the kind dealt with under that Act.[390]An award of damages is available under the Human Rights Act 1998 for breaches in accordance with section 8 of the Act:
“8 Judicial remedies. (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. (3) No award of damages is to be made unless, taking account of all the circumstances of the case, including— (a)any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.”
[391]It follows that damages may only be awarded for breaches of Convention rights if the court is satisfied that it is necessary to do so to afford just satisfaction. In my judgement, the awards set out above do provide just satisfaction, and no additional award should be made.[392]It follows that the claims of Omar Mohidin and Basil Khan against the Defendant Commissioner succeed, and that of Ahmed Hegazy fails. I award Omar Mohidin damages of £2500, and Basil Khan damages of £11,950.

Q Contribution and indemnity

[393]Mr Beggs QC submitted that, given the number of potential findings, the issue of contribution and indemnity should be postponed.[394]However not all aspects of the Part 20 claims require postponement. In the case of the Fourth and Sixth Parties, Mr Steven White and Neil Brown, the effect of the judgement must be that the Part 20 claim for an indemnity or contribution must be dismissed in each case.[395]So far as Omar Mohidin’s claim is concerned, the findings made above do not attribute any blame to the Fifth Party Mr William Wilson. It follows that the Part 20 claim against him for an indemnity or contribution must be dismissed insofar as it relates to the claim of Omar Mohidin.[396]So far as Ahmed Hegazy’s claim is concerned the findings made above do not attribute any blame to the Third Party Mark Jones or the Fifth Party William Wilson. It follows that the Part 20 claim for an indemnity or contribution must be dismissed insofar as it relates to the claim of Ahmed Hegazy.[397]So far as the claim of Omar Mohidin is concerned, the Defendant still has a claim for indemnity or contribution from Mark Jones. So far as the claim of Basil Khan is concerned, the Defendant still has a claim for indemnity or contribution from Mark Jones and William Wilson.[398]All of the above may also involve issues about costs.[399]I therefore accept Mr Beggs QC’s submissions. However I do not accept that there must be a further hearing. It is to be hoped that, if agreement cannot be reached, the matter can be dealt with by written submissions. The next section of this judgement is intended to facilitate that process.

R Order

[400]I therefore invite Counsel’s submissions on costs and the orders to be made. Subject to any submissions, I see no reason why judgements for the First and Second Claimants against the Defendant Commissioner, and for the Defendant Commissioner against Ahmed Hegazy, cannot be entered now.[401]I had hoped that the parties would be able to make submissions on the appropriate Order and on the issue of costs in the light of the circulated draft judgement. While I have received some submissions which address the points of criticism above about case preparation, I have received none directed to the terms of any Order, nor about the actual making of an award of costs.[402]Given the issues that appear to be live concerning responsibility for the inclusion of extraneous matter in the bundles, there may be issues about the payment of costs as between various parties.[403]I therefore order that a). Within 2 weeks of the date of handing down, the First, Second and Third Claimants must make submissions in writing on; i). the terms of any orders arising from this judgement; ii). any claims for costs by them against the Defendant or any of the Third to Sixth Parties . b). Within 3 weeks of the date of handing down, the Defendant must make submissions in writing on any orders it seeks, i). including any orders under CPR Part 20 against the Additional Parties Mark Jones and William Wilson, ii). and including any orders for costs which the Defendant seeks against any of the Claimants, and against any of the Third to Sixth Parties; and setting out any objections the Defendant has to the orders sought by the First, Second or Third Claimants; c). Within 4 weeks of the date of handing down, the Third to Sixth Parties must make submissions in writing on any orders any of them seeks i). relating to the CPR Part 20 claims made against each of them by the Defendant; ii). against any of the First, Second or Third Claimants, including any relating to any Orders to be made, and including any application for costs; and they must set out any objections to any Orders sought against any of them, or awards for costs sought against them, by any of the First, Second and Third Claimants, or by the Defendant. d). Within 6 weeks of the date of handing down i). the First, Second and Third Claimants must file any submissions made in response to those made by the Defendant or any of the Third to Sixth Parties ii). The Defendant must file any submissions made in response to those made by any of the Third to Sixth Parties.

Cited in 9 later judgments