Neville & Ors v The Commissioner of Police of the Metropolis [2018] EWHC 20 (QB)

[2018] EWHC 20 (QB)Case No HQ16X02967
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/01/2018
Before
MR JUSTICE MARTIN SPENCER
Between
CAROL NEVILLEClaimants(suing as representative of the estate ofClaimantDARREN NEVILLE)ClaimantPHILIP GAYClaimantLOUIS NEVILLEClaimantTHE COMMISSIONER OF POLICE OF THE METROPOLISDefendant
Rajeev Thacker (instructed by Hickman & Rose Solicitors) for ClaimantsClair Dobbin (instructed by Metropolitan Police Service Directorate of Legal Services) for DefendantHearing Hearing dates: 27, 28, 29, 30 November, 4 December 2017.
Judgment Approved

Introduction

[1]By this action, the Claimants seek damages for violations of Articles 2 and 3 of the European Convention of Human Rights (“ECHR”) arising out of the death of Darren Neville (“the deceased”) on 5 May 2013. It is alleged that the deceased’s death arose as a result of injuries sustained in the course of his restraint by police officers on 12 March 2013 which led to the deceased sustaining a cardiac arrest and anoxic brain damage.[2]The Claimants are the deceased’s mother, father and brother. They seek “just satisfaction” (the remedy for breaches of the ECHR) by way of damages including aggravated damages. Their claim is made pursuant to Section 6(3) of the Human Rights Act 1998 whereby a public authority (and it is accepted that the Defendant so qualifies) may not, whether directly or through any employee, act in a way which is incompatible with a Convention right. Claims are brought pursuant to Section 7(1) (a) of the Human Rights Act 1998 on behalf of both the estate and the Claimants in their own right. It is said that, in using force against the deceased, police officers acted in breach of the Defendant’s “operational duties” and that the Defendant was further in breach of its “framework duty” by failing to have in place an adequate system to protect individuals in the position of the deceased.[3]For the Defendant, it is said that there is a high threshold to be met before a death constitutes a breach of the substantive obligations under Article 2 ECHR, and that the circumstances of the death of the deceased do not cross that threshold, or even approach it. It is argued that in the “agony of the moment” when the officers only have a very short time to assess the situation and react, in circumstances where the deceased was behaving violently, the actions of the officers were reasonable and appropriate and, as soon as they had any reason to perceive the existence of a real and immediate risk to life, they reacted immediately by summoning medical help and giving appropriate first aid.

Background

[4]The deceased was born on 23 May 1984 and was therefore 28 years of age at the relevant time. He was staying at a probation hostel at 15 Aberdeen Park, London N5 at the relevant time. The hostel is covered at various points by closed circuit television and a DVD compiled from the footage reveals graphically the deceased’s movements and gives insight into his condition.

Events leading up to the arrival of the police

[5]In order to understand the sequence of events, it is necessary to describe the geography of the hostel. The house, which is on two or three storeys, is set back from the road with a short garden path at the front and steps leading up to the front door. On entering the house, there is an office on the left with a hatch window and then a door. There is a passage to the right and the stairs leading to the bedrooms are immediately ahead. To the left of the stairs, the hallway leads down three steps to the back door which gives access to the back garden. Just to the right of the back door, there are steps leading down to the basement. Immediately outside the back door, three further steps lead down to a path which is perpendicular to the steps, and on the far side of the path is a large lawn. It would appear that, at all times material to this claim, the front door was locked but the back door was unlocked.[6]The sequence, using the timings on the cameras, was as follows:(i) At 05.39am on 12 March 2013, the deceased returned to the hostel on his motorbike, parked it, rang the front door, was granted admittance and went to his room. He was acting and behaving in a completely normal fashion.(ii) At 06:53hrs he emerged from his room in an agitated state and wearing only boxer shorts and socks. It appears that the deceased had taken cocaine and this had precipitated an acute psychotic reaction in the form of what used to be known as “excited delirium” and is now referred to as an Acute Behavioural Disorder (“ABD”). He goes downstairs, wraps himself in a motorcycle cover, and lies on the floor near the foot of the stairs. He then gets up again and, with his mobile phone in his right hand, attempts to get into the office of the hostel. He waves his arms around in a clearly very agitated fashion, he bends over and appears frustrated at his inability to get into the office.(iii) 06:55:16 at the same time as the deceased is banging on the window/hatch to the office, Mr Clement Ogar lets himself into the hostel from the basement door to start his day shift as a support worker. He comes up the stairs and lets himself into the office using his key. By this time the deceased is lying on the floor near the front door to the hostel wrapped again in the motorcycle cover.(iv) 06:56 the deceased crouches in front of the door to the office. Mr Ogar opens the window to the hatch and looks at him and then closes the window again. It is impossible to know what, if anything, is said between them. The deceased suddenly leaps to his feet, runs to the back door of the hostel, opens it and goes down the stairs into the garden. He walks to a point out of sight of the camera. (viii) 06:57 the deceased emerges back into sight of the camera monitoring the back door of the hostel, he lies down for a few moments on the stairs leading up to the back door. This is a cold March morning, and the deceased is wearing nothing but boxer shorts and socks. He then re-enters the hostel.(v) 06:58: once again the deceased is at the door to the office. Then suddenly he slides open the window hatch to the office and launches himself through the open window into the office. On camera five, Mr Ogar is seen to jump out of a window from the office and into the garden with his mobile phone in hand. He then starts to speak on the phone from the garden. It is now 06:58:37.[7]Until this point, there is no record of what was said, the CCTV cameras not having audio. However, the 999 call was recorded and therefore it is possible to reconstruct at least something of what had been said from what Mr Ogar was reporting to police operator. The record of the 999 call starts at just before 07:01:49, but it may be that it took a few minutes for Mr Ogar to be put through to the police. As explained in paragraph 9(xi) below, there is no significant difference between the time on the clock of the cameras and the time on the police tape counter, the latter probably being about 10 seconds ahead of the former.[8]Mr Ogar says:
“We need the police immediately, quick quick we need assistance … Someone is attacking us. 15 Aberdeen Park, someone is attacking us, quick quick quick, we need assistance, quick, please, quick, 15 Aberdeen Park, quick, please, he’s going to kill us.”
It is a reasonable inference that the deceased, in addition to his actions in diving through the hatch window into the office, had said something to induce Mr Ogar to fear for his life. Mr Ogar was told several times by the police operator to calm down and it is quite clear that Mr Ogar is talking very fast in an agitated way. This also seems to be the case from observing him on the CCTV.[9]Continuing the sequence from the CCTV:(i) 06:59:00 the deceased emerges from the office, using the door, and goes towards the front door of the hostel out of sight of the camera, presumably trying to get out. However, the door must be locked as he is unable to do so. Next, the deceased is seen with a small fire extinguisher in his hands going back and forth as though he is trying to break down the front door.(ii) 06:59:25 the deceased goes back into the office.(iii) 07:00:50 the deceased emerges from the office with a kettle in his hand.(iv) 07:01:00 the deceased launches the fire extinguisher at the frosted glass in the top half of the front door with considerable force as shown by the fact that not only does the glass break but the fire extinguisher flies through the glass window, down the stairs to the hostel along the path leading to through the front garden to the stairs to the hostel and through the gate onto the pavement and the road. In the meantime the deceased, using his hands and arms, clears away the remaining glass from the door, he then fetches the motorcycle cover, puts it across the frame (and the remaining glass of the door) and he then launches himself through the window of the door onto the porch. It is now 07:01:25. As becomes apparent later, in the course of doing this the deceased sustains serious lacerations, particularly a large gash to his left wrist as well as lacerations to his left shoulder, right forearm and left side as later ascertained by PC Keel who gave him first aid. Over the next few minutes, these lacerations bleed profusely, so that, by time the police arrived, the deceased’s torso and legs were covered in blood.(v) 07:01:25 the deceased goes down the front steps to the hostel and, staggering somewhat, he goes down the front path, onto the pavement and across the road.(vi) 07:02:38 Mr Ogar says:
“He smashed through the window, the door, and he’s outside.” (vii) 07:03:03 the deceased is sitting on a wall on the far side of the road facing towards the hostel and a bicycle goes past him. This is Mr Thomas Manzke: see paragraph 10 below. (viii) 07:03:30 the deceased gets up and walks along the pavement towards the front of a house on the far side of the road. In the meantime, Mr Ogar has gone back into the hostel. (viii) 07:03:26 (police tape time) Mr Ogar says: “He’s screaming outside the building, he’s coming, he’s coming. Please, quick.”
He identifies the deceased by name. There is then this exchange: “Operator: So he’s not inside the building anymore?”: Mr Ogar: Yeah yeah he smashed the door and got out. He’s outside the front of the building, we can’t get in cos he’s just screaming, “I want to come and kill us”… he’s trying to assault someone. He’s smashing everything. He’s got something on his head, on his head, he’s smashing the whole road”. (ix) 07:04:00 the deceased takes a small recycling bin from outside a house on the far side of Aberdeen Park from the hostel and puts it over his head. He then runs back up the pavement towards a point opposite the hostel, turns round (possibly when he sees the police car coming, which at this stage is approaching his position) and runs back down the pavement in the opposite direction, all the time with the recycling bin on his head. (x) At 07:04:09 Mr Ogar says: “the police are here, they have seen him, they need to catch him, he’s smashing everything. … yeah yeah yeah, the police have got him, they’ve got him, yeah yeah.” (xi) 07:04:15 the first police car arrives. As Mr Ogar is heard to say “The police are here” at 07:04:09 on the tape counter, this shows that the time on the tape counter and the time on the CCTV are about the same, the time on the police tape counter being perhaps about 10 seconds ahead of the time on the cameras.[10]The passer-by on the bicycle, Thomas Manzke (who happened to be Deputy Manager of a Mental Health Inreach Team), observed that the deceased was shouting and had bloodstains on his upper body. Mr Manzke (in his agreed witness statement) states as follows:
“He was shouting loudly, I couldn’t understand what he was shouting as it was more like noise than words. He appeared very distressed and was either very angry or fearful; I couldn’t decipher which emotion. He expressed his distress through the loud shouting. I continued cycling up Aberdeen Park until I saw a young woman with a phone. I asked her if she was calling police, to which she said she was. I wanted to call the police but felt unsafe to do so [by] the male for fear of violence. I passed her and on the corner of Aberdeen Park where it meets Highbury Grove I saw two police cars. … I waved to the police cars and definitely one car turned into Aberdeen Park; I am unsure whether the other car followed or continued their journey onwards. … The car that turned into Aberdeen Park stopped by me and I spoke to the driver … I informed the police officer there was a man behaving bizarrely and that he might be unwell. We could see the male on the wall whilst we were talking. The police then drove to the male.”
[11]The police officer to whom Mr Manzke spoke was PC Ben Pether who was in uniform and in a marked police car together with PC Chantelle Davies, and I take up the account from her statement. PC Davies describes how, at 07.02am, she received a call on her personal radio asking for police units to attend Aberdeen Park. They were in the vicinity, on Highbury Grove which adjoins Aberdeen Park, in a convoy with two other marked police vehicles. She instructed PC Pether, who was driving, to turn into Aberdeen Park and they met a white male on a bicycle (Mr Manzke). She heard Mr Manzke say “there’s a male going mental” and pointing down Aberdeen Park. At the same time a white female also approached the car window and another white male approached her window and said “there’s a man down there covered in blood”.[12]PC Pether drove down Aberdeen Park, at which point PC Davies saw the deceased running up and down the pavement. His torso was covered in blood. He was wearing only chequered boxer shorts and black socks. She saw the deceased walk up a path towards a door and then come back out onto the pavement, pick up a green recycling bin and put it on his head. He then continued to run down the pavement with the bin over his head.[13]The only other witness to the events before the arrival of the police was Sara Patel, a resident in Aberdeen Park and whose evidence was agreed. In a statement made on 18 March 2013, she described seeing the deceased on the other side of the road. She said:
“All of both his arms were covered in red which didn’t necessarily look like blood; it was a bright red. He had smears of blood over his torso which were a darker red. I couldn’t see any injuries and he didn’t appear to be dripping blood. He was not carrying anything. The male was behaving in an agitated manner and kept banging his head with the palm of his hand. He was also talking to himself. He then sat on the wall opposite my house and held his face in his hands. At this stage I left the room and dialled 999 for the police. Whilst I was on the phone three police cars arrived so I ended the 999 call. Just before the police arrived the male walked down the road, away from Highbury Grove, and kicked a pillar at house no. 14. This kick was quite hard; he had no shoes on.”

The events leading to injury

[14]The first point to make is that it seems that three police cars happened to be travelling in convoy already, so in response to the call from Mr Ogar (and others) all three attended the scene. Secondly, although the CCTV shows the arrival of the police and therefore the times of their arrival, together with something of the very first encounter with the deceased, most of what then happens is out of sight of the CCTV with the result that I am principally dependent on the accounts of the police officers attending for what happened. As it turns out, it is the very first encounter which, in my judgment, is critical to my assessment of liability in this case, and therefore what is shown on the CCTV in that respect is extremely helpful and is wholly independent.[15]Reconstructing the events, and in particular the timings, has been very difficult because, with events moving very quickly, the accounts from the police officers have not been wholly consistent with each other in relation to timings and events. I have had to do the best I can to piece together what happened from such independent evidence there is and from my assessment of the accounts I have heard and the reliability of each of the officers concerned. What I can say is that, in my judgment, each of the witnesses was doing his or her best to recount what happened truthfully and accurately, and where there is inconsistency and therefore error on the part of one witness or another, that is genuine error borne out of a dynamic situation in relation to which the perspective of each witness was different. Some recollections have changed over the years – again, this is not necessarily sinister but a facet of the passing of time - and generally I have taken it that the accounts set out in the officers’ notebooks or contemporaneous statements, made very close in time to the events in question, are likely to be more accurate than recollections years later.[16]The police who attended, and the times and order of their arrival was as follows: Time Attendees 07:04:18 PC Pether and PC Davies 07:04:22 PC Molloy and PC Cohen 07:04:36 PC Scott-Denness 07:06:00 PC Armstrong and PC Peters 07:07:02 PC Keel and PC Thorp 07:07:17 PC Gray 07:07:22 2 further police officers arrive. Thus, over a period of three minutes, 12 police officers attended the scene.[17]I heard from the police officers in the following[18]Before looking at the detail of the events which unfolded, it is helpful to have a framework from the events which are documented and certain: not just the above arrivals from the CCTV, but also messages recorded on the CAD. The chronology is as follows: Time Event 07:01:49 Clement Ogar put through to police 07:02:38 Police operator puts out on radio: “I’ve got a call to 15 Aberdeen Park … Caller stating ‘someone is going to kill us’. No weapons have been seen.” 07:04:03 Police operator puts out on radio: “NV81 [PC Davies] and all units going to Aberdeen Park. Male is Darren Neville. He’s damaged the front door and is currently outside the venue screaming and shouting.” 07:04:18 PC Pether and PC Davies arrive 07:04:22 PC Molloy and PC Cohen arrive 07:04:36 PC Scott-Denness arrives 07:05:32 [Message from PC Davies to police operator] “We’ve got the male. He’s got blood all over him. Can we get LAS [London Ambulance Service] running please.” 07:06:00 PC Armstrong and PC Peters arrive 07:06:47 Call received by London Ambulance Service (Page 1023) 07:06:48 Ambulance G102 despatched (page 1024) 07:07:02 PC Keel and PC Thorp arrive 07:07:17 PC Gray arrives on foot. 07:07:22 2 further police officers arrive. 07:11.10 CAD record message: “Do you have ETA please. Male has lost a lot of blood.” 07:12:24 CAD message: “Male is fitting has wounds to wrist head and shoulder” 07:15:23 Message to LAS: “Male is turning blue – struggling to breathe” (1024) 07:16:?? Ambulance G102 on scene 07:22:59 Message to LAS re Cardiac Arrest (1024) 07:23:20 Ambulance G192 despatched. (1024) 07:48:51 Deceased in ambulance transporting to hospital (1024) 08:04:05 Ambulance reaches hospital with deceased. (1024) PC Chantelle Davies[19]PC Pether stopped the vehicle and PC Davies jumped out and ran round the back of the police vehicle over towards where the deceased had run out onto the pavement. In her notebook, compiled from 09:43 hours the same day and therefore within 3 hours of the incident, she recorded as follows:
“I jumped out of the vehicle, ran round the front of the vehicle [in fact, the CCTV shows that she ran round the back, which shows that notes made even just a few hours later can be erroneous] and straight over to where the male had run out onto the street. … As I ran towards Neville he still had the bin over his head and I couldn’t really see his hands and it occurred to me that he may have a knife. Neville then took the bin off his [head] and shouted something about God which I couldn’t understand. He then punched out at my head using his right fist. I stepped back to avoid the punch and then turned to face back into the street. I saw Neville windmilling his arms in a punching style as he made towards PC Pether. I saw PC Pether try and get hold of Neville in a head lock and then they both stumbled to the ground. I ran straight over to PC Pether and dropped to the ground to help him try to restrain the male so that we could find out what his injuries were and administer first aid to him. Neville was really struggling against us, he was very strong and he was bucking and kicking against us. Neville yelled “NO POLICE” and as PC Pether and I were trying to keep hold of him I yelled “We are the police, stop moving we’re trying to help you.”
PC Pether and I were struggling to restrain Neville he was slippery from all the blood.”[20]In her witness statement, PC Davies says:
“I was asked at the inquest into Mr Neville’s death why I got out of the car immediately and why I didn’t remain in the car with PC Pether and discuss what to do. Firstly, police officers are not taught in a situation such as this, to sit in a car and discuss what we are going to do. We are taught to dynamically assess the situation and deal with whatever we come across. Secondly my reasons for going straight to Mr Neville were that he was covered in blood and he clearly needed urgent medical attention. As far as I was concerned, getting him medical attention was the priority. It did not cross my mid to treat him as a suspect, or to arrest him, he was simply someone who needed help”
PC Pether[21]PC Pether also said that they were not initially approaching the deceased to arrest him but to help him. He said (in his witness statement):
“We didn’t discuss what we were going to do. As far as I was concerned there wasn’t time; there was a man covered in blood in front of us and my immediate instinct was that this was a medical emergency, he needed urgent help and we had to go to help him.”
He saw the deceased throw two punches at PC Davies, but he was staggering and the punches were not accurately thrown. He heard the deceased shouting words such as “God”, “matrix” and “police” but the words were muffled and slurred. PC Pether said that given the deceased’s behaviour, he instinctively thought that the deceased might be suffering from the effects of drink or drugs or might have mental health issues. He shouted “show me your hands” because he didn’t know whether the deceased had a weapon on him. He says:
“Mr Neville then came towards me shouting, wind-milling his arms and punching out. He stumbled towards me quite quickly and I stepped back. Mr Neville then punched out at me so I took a further step back and avoided being hit. Mr Neville stumbled into me grabbing hold of my waist; it was like a rugby scrum sort of position with his head going under my left arm in a half headlock position. I then twisted my body and we both lost our footing and fell to the ground. I think Mr Neville landed on his back, flat, and I think I landed partly on top of him. He was extremely strong and slippery with blood.”
[22]In his notebook, compiled 3 hours later (from 10:10 hours) PC Pether said this:
“My colleague got out the car first and run over to the IC1 male in boxers on the pavement, as I had just finished closing the car door. I witnessed the male take the box off his head and lunge towards [PC Davies]. I had never seen someone in real life covered in so much blood from head to toe. He was very unsteady on his feet and swinging his fists wildly. [PC Davies] avoided contact and [the] IC1 male in boxers looked towards me and [then started] stumbling towards me. I heard him shout words such as “God”, “Matrix” and “Police” but I could not put together what he was saying. His voice was muffled and slurred and it happened so quickly I was unsure if he had a weapon so I had my eyes firmly on the IC1 male in boxers. He came towards me aggressively shouting and windmilling his arms frantically punching out. As he got closer, I took a step back. The IC1 male in boxers threw two punches with closed fists, one from each arm towards my face. I managed to take a further step back and avoid being hit. The IC1 male in boxers’ momentum took him forward and he stumbled slightly, which gave me an opportunity to grab hold of him. I pulled his back and arms towards me, his head going under my left arm in a half headlock. I then twisted my body and we both fell to the ground, with me landing on top of him.”
PC Cohen[23]In relation to the initial stages, it will be recalled that PC Cohen and PC Molloy arrived just a few seconds after PCs Pether and Davies, and their accounts largely confirm those of the other officers. PC Cohen says in his statement:
“As I was exiting the vehicle, I saw Mr Neville remove the recycling bin from his head and run into the road towards PC Davies and PC Pether who were now in the middle of the road. He was thrashing his arms around wildly. I saw Mr Neville run towards PC Davies and PC Pether and he threw what appeared to be a punch in PC Davies direction. The punch narrowly missed and almost hit PC Pether. Mr Neville was leaning forwards, whilst moving forwards, swinging his arms and throwing punches towards PC Pether. I then saw him make contact with PC Pether (although I recall I was behind PC Pether and this blocked by view somewhat). PC Pether’s left arm went over Mr Neville’s back, they twisted to the side and both fell to the floor. I cannot recall how they landed but Mr Neville ended up on his front. This had taken place within probably 20-30 seconds from us entering Aberdeen Park. 11. Pausing there, I was asked by the coroner at the inquest into the death of Mr Neville whether there would have been any advantage in my staying in the vehicle with PC Molloy and making some sort of plan of action to deal with Mr Neville. I would certainly not have done this. As police officers, one of our core functions is to preserve life. When we first encountered Mr Neville he was covered in blood. We did not know if it was his blood or someone else’s. Mr Neville clearly needed help, but he also presented a potential risk to himself, members of the public and police officers. We therefore had to deal with the situation as an emergency and every second counted.”
This account is consistent with, and derived from, the notes which PC Cohen started to compile at 10:30hrs the same day. PC Molloy[24]PC Molloy also got out of the vehicle and ran over to where Mr Neville, PC Davies and PC Pether were. As he approached them, PC Molloy realised that the deceased had a lot of blood on him. He then describes the initial events (in his statement) as follows: “10. At this stage Mr Neville was in a fighting stance like a boxer going into the ring (by this I mean that he had his fists up). He was screaming and shouting something at PC Davies and PC Pether. Mr Neville ran at PC Davies and lunged at her as if he was trying to punch her. The punch missed PC Davies but he carried on running, almost staggering, towards PC Pether windmilling his arms. PC Pether avoided Mr Neville by running backwards, but Mr Neville carried on running towards him. PC Pether took hold of Mr Neville by his upper torso and fell backwards taking Mr Neville to the ground. Mr Neville ended up on top of PC Pether. I was within approximately 5 metres of them at this point.

Decision in relation to initial contact

[25]The description from PC Molloy of the deceased running, staggering towards PC Pether windmilling his arms, and PC Pether running backwards but the deceased carrying on running towards him is borne out by the CCTV footage. This shows the general movement of the police officers going backwards down the road and of Mr Neville going forwards until they fall onto the floor out of sight of the camera. Thus, I have no difficulty in finding that, from the moment that the officers arrived and confronted the deceased, the deceased was aggressive towards them, aiming punches and leaving the police officers with no choice but to make contact with him. Whether the first contact was by the deceased grasping hold of PC Pether or by PC Pether grasping hold of Mr Neville is, in my judgment, immaterial. The fact is that, by his actions, the deceased made a physical confrontation inevitable and no training could have avoided this. See further paragraph 79 below.

The Restraint

[26]There is an issue in this case as to how long the deceased was held in the prone position, how long he was in handcuffs and whether the restraint was excessive and unnecessary such as to lead to a deterioration to the deceased’s condition. It is in this regard, with events moving very fast and with the deceased struggling violently through most of the restraint, that the perceptions of the officers, particularly with regard to time periods, differ. PC Pether[27]Without doubt, there was a struggle on the ground during which PC Davies and PC Pether were joined by other officers, PC Cohen, PC Molloy and PC Scott-Denness. PC Pether states (in his witness statement):
“I kept telling him to stop resisting but it just wasn’t registering with him and he continued to scream incoherently. He was unbelievably strong, moving his body wildly, kicking out and trying to punch. I remember thinking that we needed to get better control of him because of the way he was kicking out and punching and because he needed medical attention. We simply could not help him in the state he was in; and I did not want him to escape from us. I was shouting at him to stop resisting but it still wasn’t registering. For all of these reasons I thought that I must handcuff him in order to get him under control. If we had lost control of him, he could have assaulted and injured us, he was a serious risk to himself and members of the public, and whatever was wrong with him (given he was covered in blood) could not properly be dealt with.”
[28]PC Pether therefore took his handcuffs and placed one cuff on the deceased’s left wrist. He then managed to handcuff the other wrist behind the deceased’s back. At the same time, PCs Scott-Denness and Molloy were trying to control the deceased’s legs by using leg restraints. PC Davies had gone to the ground as well, kneeling beside the deceased and trying to help restrain him. She describes him thrashing out with his arms and kicking out with his legs and that it was difficult to get a good grasp because his arms were so slippery with blood. She also describes the deceased’s strength:
“he was very strong and he was bucking and kicking against us”
. She used her personal radio to request help from the London Ambulance Service telling them:
“He’s got blood all over him. He’s got blood coming out of his arm. We can’t tell what other injuries he’s got at the moment.”
This call was made at 07:05am. In my judgment, it was good practice and indicates clear-headed concern for Mr Neville that PC Davies was calling for the attendance of an ambulance within about one minute of her arrival.[29]Once the deceased was handcuffed, he was under a bit more control. PC Pether says that it was at that stage that he noticed that the deceased had - “a large chunk of flesh missing from the inside of his left upper wrist area with blood coming from it. This was a massive gash, like someone had bitten a chunk out of his wrist. I then also noted that he had a similar injury to his left shoulder and right elbow.” 30. It is to be presumed that these severe lacerations were sustained as the deceased went through the glass front door of the hostel. The story is taken up by PC Pether as follows:
“I immediately shouted out that we had to take the handcuffs off. I think that PC Armstrong said the same thing at the same time. The handcuffs can only have been on for a matter of seconds; although we initially kept the right cuff on and therefore still had some degree of control over Mr Neville. I recall that I took one part of the left handcuff off and someone else took the other bit off. More officers had arrived at that point which meant that there was more people to take control of Mr Neville. The other handcuff also came off but I can’t remember who took it off. At this stage, Mr Neville seemed to be calming down. He was not thrashing about as much. He was turned onto his side in the recovery position as soon as this was possible to do. We did this to prevent positional asphyxia. It is part of our training that the prone position creates a risk of positional asphyxia because it restricts breathing. At no time did I or any officer lay on top of Mr Neville.”
PC Davies[30]PC Davies describes the deceased as really kicking out and because she thought someone was going to get hurt she asked PC Molloy to get some leg restraints. She then saw PC Molloy and PC Scott-Denness trying to secure the leg restraints. In the meantime, PC Cohen was knelt at the deceased’s head level and was holding onto his shoulder. She and PC Pether were holding the deceased around his torso area. She describes the deceased as still thrashing about, bucking his whole body around. She says:
“Even with five of us trying to deal with him, we couldn’t get a good grip on him there was so much blood making his body very slippery.”
She saw that there was a handcuff on the deceased’s left wrist, he was still roaring and yelling. Other officers arrived and she heard PC Armstrong say “get the cuffs off”. In relation to the decision to handcuff Mr Neville, she says:
“In my view it was the right thing to do because he simply wasn’t engaging with us and we urgently needed to bring him under control so that we could give him medical attention and first aid.”
At some stage she repeated her request over the radio for London Ambulance Service to attend. She describes the deceased as being rolled over onto his left side and placed in the recovery position but she gives no estimate of time before this was done. PC Cohen[31]PC Cohen describes the deceased as screaming on the ground with visible cuts to his left shoulder. He says:
“I tried to hold his arms, but due to the amount of blood on his body, I kept slipping and couldn’t get a grip on him. Mr Neville continued to twist and turn on the floor and slither around violently. I heard him say something about “the matrix” but I couldn’t really understand what he was trying to say. I repeatedly told Mr Neville to calm down and said that we were police officers, but he didn’t seem to understand; it was like he was in a world of his own. 13. Mr Neville was on his front when I applied pressure to his right shoulder using my hands, whilst also trying to prevent Mr Neville from banging his head. He kept twisting his head and shouting, trying to get free. It was also difficult to maintain my hold because he was slippery from the blood.”
PC Cohen then describes how they were able to put handcuffs on the deceased, with him applying pressure to the deceased’s right shoulder to prevent him from becoming free. The deceased then seem to calm down a bit and the officers were then able to check him over for injuries and he recalls PC Armstrong saying that the handcuffs should be removed (the open wound to the left wrist having been discovered) and that the cuff from the left wrist was removed immediately. He says:
“The handcuffs could not have been on for more than 5-10 seconds.”
PC Molloy[32]PC Molloy describes the efforts to restrain the deceased. He describes the deceased slipping out of PC Pether’s grip and kicking his legs out so that he, PC Molloy tried to get hold of the deceased’s legs by keeping his knees together. He describes how all four of them were struggling to keep hold of the deceased who was on his front and slightly to the side, kicking his legs about. He remembers being asked by PC Davies if he had leg restraints and saying that he had some in his back pocket. PC Scott-Denness then arrived and PC Molloy asked PC Scott-Denness to get the leg restraints out from his (PC Molloy’s) pocket and apply them. All the time, the deceased was struggling and shouting things like “We’re all in the matrix, we’re all in the matrix. Don’t kill me, don’t kill me.” He says that they were all trying to calm Mr Neville down by repeatedly talking to him. He seemed to calm momentarily but then when the leg restraints started to be applied he started violently lashing out again. PC Molloy and PC Scott-Denness continued to try to put on the leg restraints but were unable to do so. He then saw PC Peters and PC Armstrong arrive together with PC Thorp shortly thereafter. PC Molloy then describes how they crossed Mr Neville’s legs and pushed them against his bottom in a technique learned from officer safety training, a technique which makes it harder for a person to straighten their legs. PC Scott-Denness was then able to secure the leg restraint around the thigh area and PC Molloy took the other leg restraint and applied it to the ankles. PC Molloy noticed that the deceased’s left wrist was already handcuffed and he was then in a position to help get the right hand into the handcuffs. However, immediately after the deceased was placed in handcuffs, he noticed that there were some deep cuts on the wrists, arms and shoulders and he heard PC Armstrong shout that the handcuffs and leg restraints should be removed. He says:
“Once the handcuffs and leg restraints were removed, Mr Neville was put in the recovery position.”
He says that the leg restraints were actually on for no longer than a few seconds before PC Armstrong said they (and the handcuffs) should be removed. Other Witnesses[33]PC Scott-Denness who arrived some 18 seconds after PCs Pether and Davies, confirms assisting in trying to restrain the deceased’s legs. He says that although he did eventually manage to apply the leg restraints between the knee and ankle area, in his haste he had put them on the wrong side so that the Velcro was ineffective and they didn’t work. He says:
“At this point I noticed that a handcuff had been applied to one of Mr Neville’s wrists and heard PC Pether say that he couldn’t get the other handcuff on. PC Armstrong and PC Peters then arrived on the scene closely followed by PC Thorp and PC Keel”
As, from the chronology, it is known that PC Armstrong and PC Peters arrived at 07:06 and PC Keel and PC Thorp arrived at 07:07 it would appear from the evidence from PC Scott-Denness that the struggle had been going on for two minutes or so before the others officers started to apply the handcuffs. PC Scott-Denness says:
“In my view, it was necessary to handcuff Mr Neville at that stage, given his violent demeanour and the fact that the initial call to police had referred to him threatening to kill someone. Also he was covered in blood and we had to get him under restraint in order to examine the extent of his injuries; there was no way we could have done this in the state he was in without restraining him. I therefore had no concerns about Mr Neville being handcuffed.”
He describes how he and PC Molloy got the leg restraints on and how he then noticed a deep cut to the deceased’s left wrist and how the handcuffs and leg restraints were removed at about the same time.[34]PC Armstrong, who arrived at 07:06, describes getting out of his vehicle, putting on some gloves and the running towards the other officers who were struggling with the deceased on the ground. He says:
“I saw that Mr Neville was lying on his front with his head slightly towards Highbury Grove, the direction I had drive from. He was thrashing around and making inaudible “roaring” noises. He appeared to be fixed on resisting restraint and lifting his body off the floor. Officers were repeatedly telling him to stop resisting and to calm down but he appeared not to take any notice.”
PC Armstrong then describes taking hold of the deceased’s left hand and the attempt to handcuff him. He says that as the handcuffs were being put on, he noticed the big laceration on the left wrist. He said “it looked to me as though something sharp had been stuck in and pulled away as the wound had jagged edges. I immediately said that the cuffs had to come off.” He says that after they got the handcuffs off, the deceased was still tensing but was reducing his “fight” and his recollection was that the deceased was on his front for less than a minute before he was rolled onto his left hand side. If, by the time PC Armstrong arrived, the deceased had been on his front for two minutes already then the total time that he was on his front would have been for about three minutes.[35]PC Keel did not take part in the restraint but was effectively the first aid officer, ready to apply bandages to the wounds as soon as he was able to, once the deceased was under control. He describes applying a field dressing to the wound to the left wrist after the handcuffs were removed. He says that, by that time, the deceased had calmed down somewhat. He says:
“I asked officers to place Mr Neville more on his side so I could carry on checking for any further injuries and he was placed in the recovery position.”
He then applied a further field dressing to the cut on the deceased’s shoulder.[36]In his evidence, PC Keel said that he thought that the deceased was not put into the recovery position until about 07:11am. If the deceased was in prone from about 07:05, then that would suggest that he was in the prone position for around six minutes or so.[37]PC Thorp, in her statement, gave a different time estimate, suggesting that the time between her arrival at the scene and the handcuffs being removed was about 30 seconds. This would suggest that the handcuffs came off at about 07:08 and she then describes how the deceased appeared to have calmed down a bit but was “still making angry, grunting and growling noises”. She was told by PC Peters that there was foam around the deceased’s mouth so she said they had to get him into the recovery position, which they proceeded to do. She describes how they then rolled the deceased onto his left side and, depending on how long this took, this would suggest that the deceased was taken out of prone and put onto his left side at about 07:09, which would suggest he had been in prone for about four minutes or so.[38]Finally, there is evidence from Lydia Rose West, a teacher, who was passing by. She made a statement on 24 April 2013. She had left her home in Aberdeen Park at about 07:10. She says, in an agreed statement:
“I had heard what I thought to be a man I can only describe as roaring and then saw a man in the road not far from the pavement being held down on the floor by the police, and I could see and hear that it was this man who was roaring, no real words coming from his mouth, just a noise. … He was face down but with his head turned and on his stomach wearing navy long shorts, to his knees, and what I believe were grey trainers. He was definitely bare-chested. Although there were 5 police officers around him, his body was moving as if he was [body] popping like when you do the worm or a fish out of water, but making it very difficult for him to be held down. The man continued roaring all the way through the police trying to control him. I will go through what I saw each police officer doing who was on the ground with him. The first officer who was by his head was knelt on his haunches with his hands near his head but not touching his head, just there in a precautious way, because his head was moving about. This officer was talking to him but I did not hear what he was saying, he seemed to be trying to calm him down, this officer in my view did not act wrongly or violently towards the man on the floor. The other four officers were either side of the man’s body also kneeling down. My view was to the left at the men on the ground looking up towards his head so officers 2 and 3 were on the left side of his body and 4 and 5 opposite on the right side of his body. Officers 2 and 4 closest to his head holding down his arms, I believe they were holding down the back of his arm, so his arms were effectively behind him and palms up. Officers 3 and 5 just seem[ed] to be helping with his arms generally but no-one at this point was holding down his legs which were thrashing around. At this point I thought if they held him down harder it would be better as his body was still moving, also that no-one was holding his legs. I did not see any of these officers do anything wrong or act violently. The officers were all talking between themselves whilst dealing with him. I did see a female officer going towards his legs to hold them but she seemed unsure what to do. I can only describe the 5 officers around him as white males with short dark hair, I don’t remember them wearing hats. The Police Woman was also a white girl with tied back dark hair. I did not see this man being held down prior to this, running around nor did I see him put to the floor, I did notice an awful lot of blood around the scene of where he was being held. I also saw blood on the hands of the officers dealing with him, their gloves were the white rubber type. I did not at any time see any handcuffs or other restraints being used. I did not speak to any Police Officer at the time nor did anyone speak to me. I would say that from the time I saw this man on the floor with the police to the time I walked past and could no longer see the incident was about 2½ to 3 minutes. In all I probably saw 8 police officers and two police cars. My final thought as I walked away was how many police officers does it take to hold someone down properly. One thing I wanted to mention about the position of the man’s body was that the road is not flat and that he was angled facing down the slope so it may be there was more pressure on him lying down.”
Thus, Ms West is essentially a witness to the early part of the restraint, after the deceased and PC Pether had fallen to the ground and the arrival of PCs Molloy, Cohen and Scott-Denness but before the arrival of PCs Armstrong and Peters.

The Deterioration and Injury

[39]There then followed a deterioration in the deceased’s condition. It was while the deceased was in the recovery position and his wounds were being attended to that it was noticed that he was no longer saying anything or struggling. PC Pether noticed that his breathing had become slower and his tongue was going blue and it seems clear that, by now, he was in trouble from the point of view of his physiological well-being. The deceased then started to fit and his eyes rolled to the back of his head. At 07:12:24 the CAD shows that PC Keel updated the control room and entry on the CAD reads:
“Male is fitting, has wounds to head, wrist and shoulder.”
There were two fits, a minute or so apart. During this time, PC Peters was supporting the deceased’s head. The officers checked his breathing and his pulse. At 07:15:23, it was entered on the CAD record that the deceased was now struggling to breathe and one of the police officers asks for an update on the time of arrival of the London Ambulance Service.[40]The ambulance crew arrived at 07:16, the deceased was examined by a paramedic who, on initial assessment, found that there was no respiratory effort, no output (heartbeat) or pulse and resuscitation was started. The paramedics and police officers all assisted in giving cardio-pulmonary resuscitation (“CPR”). They eventually obtained an output and reinstated breathing, and the deceased was conveyed to hospital. The return of spontaneous circulation was some 17 minutes after CPR had been commenced.[41]Tragically, the deceased sustained brain injury in the course of this incident. An MRI scan on 19 March 2013 showed brain damage and a Consultant Neurologist considered that the deceased was at that time in a vegetative state with limited scope for recovery. The deceased was transferred to the Whittington Hospital on 30 April 2013 at which time it was noted that he was unable to communicate other than by screaming which was believed to be a combination of pain and frustration. On medical advice, the deceased’s mother signed a “Do Not Resuscitate” form and the deceased died on 5 May 2013. His cause of death was given by Dr Simon Poole, a pathologist, as:
“(a) Cardiac arrest encephalopathy (global cerebral ischaemia – hypoxia), due to (b) Fatal dysrhythmia, due to (c) Restraint and struggling in association with acute behavioural disturbance, in an individual with evidence of cocaine use (acute and chronic).”
[42]In a joint statement dated 19 July 2017, the parties’ medical experts agree with this cause of death. They further state:
“We agree that acute behavioural disturbance does not cause someone to have a cardiac arrest. It renders them vulnerable, and other factors such as stimulant drugs, neuroleptic drugs, prolonged struggle and high body temperature, may trigger cardiac arrest.”
They further agree as follows:
“We agree that struggling and restraining more than minimally contributed to death. We agree that had Mr Neville not been restrained, there was a real prospect that he would not have suffered a cardiac arrest when he did. We agree that we cannot identify the precise contribution of struggling and restraint as there is no evidence base upon which to make such a judgment.”
[43]I note that this agreement covers the eventuality of my finding that the deceased should not have been restrained at all, but it does not cover the situation should I find that some restraint of the deceased was necessary and inevitable, but that the actual restraint was excessive. In other words, the medical experts do not consider, in terms, whether the excess of restraint over that which was necessary and inevitable (should I so find) contributed more than minimally towards the deceased’s death, or whether the deceased would have died in any event, once some restraint became required.

The IPCC Investigation

[44]With the death of the deceased, an investigation was commenced by the Independent Police Complaints Commission (“IPCC”). There were two aspects to the IPCC’s investigation: firstly, in relation to the incident involving the deceased which was investigated as a disciplinary matter; secondly, in relation to the compilation of the officers’ notes after the incident in relation to which it was thought that there was reasonable suspicion of a criminal offence, namely a conspiracy to pervert the course of justice.[45]Although there was little reference during the trial to the investigation by the IPCC, the documents relating to that investigation were incorporated within the trial bundles and I have therefore read them. It seemed to me, albeit but without having heard argument about it, that the investigation was comprehensive and I have been provided with the statements taken and the final report, dated 26 August 2014, which runs to some 90 pages. The IPCC investigators carried out an analysis of what occurred when the deceased was restrained by the officers by reference to all the evidence including the interviews carried out with the officers concerned. In relation to each of the police officers involved, the conclusion was as follows:
“Based on the evidence above, there is insufficient evidence upon which a reasonable tribunal, properly directed, could find, on the balance of probabilities, that the force used upon Darren was unlawful or in breach of the standards of professional behaviour. Therefore [the officer] has no case to answer for misconduct or gross misconduct in respect of the way in which Darren was restrained.”
[46]In relation to the events after the incident, at paragraph 656 the IPCC report stated that the incident clearly met the criteria for a critical incident and so post-incident procedures should have been implemented and the post-incident manager should have been appointed by a member of the senior management team in accordance with relevant guidance. The IPCC report states that it was the failure to implement the post-incident procedures that led directly to the IPCC’s concerns regarding potential conspiracy to pervert the course of justice. Having carried out its investigation, the IPCC concluded that there was insufficient evidence upon which a reasonable tribunal, properly directed, could find, on the balance of probabilities, misconduct or gross misconduct on the part of any of the officers in relation to the procedures in the post-incident period. Thus, neither disciplinary nor criminal charges were preferred.

The Inquest

[47]In addition, there was an inquest into the death of the deceased before a coroner and a jury. This took place over six days commencing on 1 June 2015. At that inquest, the deceased’s family was represented by Mr Thacker, who has represented the Claimants in the trial before me, and the Metropolitan Police was represented by Miss Dobbin who, in turn, has represented the Defendant in this trial. The police witnesses were called and subjected to examination and cross-examination. A jury considered the evidence and returned a narrative determination as follows:
“[The cause of death was] a combination of : a) long-term cocaine use which caused significant and permanent damage to Darren’s coronary arteries; b) the presence of cocaine in Darren’s system on 12 March 2013 put increased strain on Darren’s heart; c) Darren’s use of cocaine which induced an episode of acute behavioural disturbance; d) prolonged restraint and struggle with police placed significant physiological stress on Darren’s body, caused fatal cardiac dysrhythmia, which led to cardiac arrest which caused an encephalopathy and global cerebral ischemic hypoxia, this condition ultimately led to Darren’s death. Police did not give sufficient consideration to the risks associated with prolonged restraint to a person suffering from acute behavioural disturbance; more specifically, the risk of death following prolonged restraint. It is unclear the extent to which this single factor caused Darren’s death.”
Whilst I am not bound by the findings of the jury in relation to the criticism of the police, I of course pay due and proper respect to their findings and take them into account in reaching my own decision on the issues raised in this claim. a) long-term cocaine use which caused significant and permanent damage to Darren’s coronary arteries; b) the presence of cocaine in Darren’s system on 12 March 2013 put increased strain on Darren’s heart; c) Darren’s use of cocaine which induced an episode of acute behavioural disturbance; d) prolonged restraint and struggle with police placed significant physiological stress on Darren’s body,

The Legislative background

[48]The claim is brought pursuant to sections 6 and 7 of the Human Rights Act 1998 which provide as follows:
“6 Acts of public authorities (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
It is common ground that the Defendant is a public authority for the purposes of this section. Section 7 provides:
“7 Proceedings (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may— (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.” (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, The Convention rights applicable are those protected under Articles 2 and 3 which provide as follows: “Right to life Article 2 (1) Everyone’s right to life shall be protected by law. No-one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. (2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is not more than is absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
Article 3 provides:
“Prohibition of Torture Article 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 2 (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” Article 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 3

[49]The incorporation of the provisions of the Convention into English domestic law means that, for the purposes of interpretation of Articles 2 and 3, it is relevant not only to have regard to previous decisions of the English courts but also to the jurisprudence of the European Court of Human Rights (“ECtHR”).

The issues to be decided

[50]The issues to be decided in this case were helpfully set out by Mr Thacker in his opening Skeleton Argument as follows:- i) Whether the Defendant was in breach of the operational duty under Article 2 because of the unjustified use of force upon the deceased by police officers; ii) Whether the Defendant breached the operational duty because the officers failed to take reasonable steps to protect the deceased’s life; iii) Whether the Defendant was in breach of the general (or framework) duty under Article 2, in that it failed to have any or any adequate systems in place to deal with and/or protect individuals in the deceased’s position; iv) Whether the Defendant was in breach of the general duty under Article 2 because it failed to implement, properly or at all, any systems that were in place; v) Whether the Defendant breached the deceased’s rights under Article 3 by subjecting him to inhuman and/or degrading treatment; vi) Whether the Defendant breached the deceased’s rights under Article 3 because the police officers failed to take steps to protect him from inhuman and/or degrading treatment; and vii) If the Claimants are successful in their claims, or any of them, what remedies should be granted.

The Claimants’ Written Submissions

[51]For the Claimant, reliance is placed upon the recent decision of the ECtHR in Frančiška Štefančič v Slovenia [application number 58349/09, 24 October 2017], which concerned the death of Branko Štefančič, who suffered from paranoid schizophrenia and depression, when a doctor and medical technicians, supported by the police, attempted to convey him to a psychiatric hospital against his will. Mr Štefančič died as a result of asphyxiation caused by aspiration of gastric contents. A forensic pathologist concluded that the vomiting had most likely been induced by a blow or pressure to the stomach during the struggle to restrain him.[52]Having considered the state’s investigation into the death, the relevant domestic law, the admissibility of the application and the parties’ submissions, the court set out some general principles as follows:
“64. The Court reiterates that Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe. The first sentence of Article 2 enjoins the Contracting States not only to refrain from the taking of life “intentionally” or by the “use of force” disproportionate to the legitimate aims referred to in sub-paragraphs (a) to (c) of the second paragraph of that provision, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, inter alia, L.C.B. v the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III, and Keenan v the United Kingdom, no. 27229/95, § 89, ECHR 2001-III). 65. Any use of force, including force which may result, as an unintended outcome, in the deprivation of life, must be no more than “absolutely necessary” for the achievement of one or more of the purposes set out in sub-paragraphs (a) to (c). This term indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 2 of Articles 8 to 11 of the Convention. Consequently, the force used must be strictly proportionate to the achievement of the permitted aims (see McCann and Others v the United Kingdom, 27 September 1995, § 148, Series A no. 324). Furthermore, the responsibility of the State under Article 2 is not confined to cases in which there exists significant evidence that the use of force by State agents has, or could have, directly caused a person’s death. It may also be engaged where those agents, when conducting an operation, fail to take all feasible precautions in the choice of means and methods with a view to avoiding or at least minimising incidental loss of life (see, for example, Ergi v Turkey, 28 July 1998, §§ 77-79, Reports 1998-IV, and Saoud v France, no. 9375/02, §§ 88-90, 9 October 2007). 66. Furthermore, in the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (McCann and Others, cited above, § 150). Where the authorities decide to place and maintain in detention a person with disabilities, they should demonstrate special care in guaranteeing such conditions as correspond to his special needs resulting from his disability (see Jasinskis v Latvia, no. 45744/08, § 59, 21 December 2010). The State is therefore under a positive obligation to take all reasonable measures to ensure that the health and well-being of persons in detention, police custody or under arrest, who thus find themselves dependent on the State authorities, are adequately secured. This includes promptly providing them with the medical assistance required by their condition in order to prevent a fatal outcome (see Saoud, cited above, § 98 and the references cited therein). Moreover, the authorities are under an obligation to account for the treatment of people in custody, who are in a vulnerable position. Consequently, where an individual is taken into police custody in good health but later dies, it is incumbent on the State to provide a plausible explanation of the events leading to his death (see, among many authorities, Anguelova v Bulgaria, no. 38361/97, § 110, ECHR 2002-IV).”
[53]At paragraph 67, the court confirmed that the state’s obligation to protect the right to life carried with it an obligation for there to be some form of effective official investigation when individuals have been killed as a result of force by agents of the state.[54]Relying on this authority, Mr Thacker submits in his opening and closing written submissions that:(i) The force used must be no more than is strictly necessary in order to achieve one of the aims set out in the second limb of Article 2;(ii) The Court will scrutinise any use of force carefully, bearing in mind all the circumstances, and consider whether all feasible precautions were taken to avoid or at least to minimise the risk to life;(iii) There is a positive obligation to protect the health and well-being of those who are in state detention or otherwise dependent upon the state;(iv) There is a particular obligation to protect those who are who are or may be vulnerable, for example, by reason of mental illness or disability; and(v) As the parties have agreed, there may be, in certain circumstances, a positive obligation upon State agents to take reasonable steps to avert the risk of death or serious injury, where there is a real and immediate risk to life (relying upon Rabone v Penine Care NHS Foundation Trust [2012] 2 AC 72).[55]In relation to the proposition that the force used must be no more than is strictly necessary in order to achieve one of the aims set out in the second limb of article 2, Mr Thacker refers to the decision of the ECtHR in Nachova v Bulgaria [2006] 42 EHRR 43. There the court had said:
“…the legitimate aim of effecting a lawful arrest can only justify putting human life at risk in circumstances of absolute necessity. The Court considers that in principle there can be no such necessity where it is known that the person to be arrested poses no threat to life or limb and is not suspected of having committed a violent offence, even if a failure to use lethal force may result in the opportunity to arrest the fugitive being lost.”
[56]Mr Thacker for the Claimant further submits that the obligation to minimise risks is not restricted to “operations” that have an element of pre-planning but also applies to situations where a decision is made to restrain an individual as part of ordinary policing duties. The question in such a case is whether the restraint “operation” was carried out in such a way as to avoid death or minimise the risks involved. Reference was made to Saoud v France (Application No 9375/02) where a violation of Article 2 was found in a restraint case where there had been a failure to call for medical attention, this amounting to a breach of the obligation to protect life. Furthermore, reference is made to Tekin & Arslan v Belgium (Application no 37795/13) where the Court found that deficiencies in training meant that the alternatives to restraint were not properly considered, such that the use of force was not strictly necessary. There is also reference to Makaratzis v Greece [2015] 41 EHRR 49 where the examination of all the circumstances, including the steps taken to minimise the risk to life, took place in the context of an unplanned operation.[57]In relation to the claim pursuant to Article 2(2) ECHR, Mr Thacker bases his submissions on breach in relation to two particular aspects of his case: i) The use of force at all. It is submitted that the police officers should have applied their training in how to deal with individuals suffering from ABD, and in particular the “CARES” training [as to which, see paragraph 59 below] to avoid conflict and the use of force. It is submitted that, had the officers applied this training appropriately, the use of force would not have been necessary at all or there was at least a substantial chance that the use of force could have been avoided. ii) Alternatively, Mr Thacker submits that, on the findings of fact which he invites me to make, the use of force was disproportionate. In particular, he invites the court to find that, with the deceased’s vulnerability arising from his state of ABD, the time that he was kept in the prone position was excessive and that this contributed to the cardiac arrest, brain damage and death. In this regard Mr Thacker relies upon the positive obligation arising under Article 2 to protect life as adumbrated in such cases as Osman v United Kingdom [1998] 29 EHRR 245, Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225 and Rabone v Penine Care NHS Foundation Trust [2012] 2 AC 72. It is submitted that the risk to the deceased’s life was real (in other words more than fanciful) and it was immediate because it was present and continuing; and the officers knew or should have known, given their training, of that risk. He submits that there was a wholesale failure to avert the risk and in some cases an exacerbation of the risk by the police officers in question relying on the time that the deceased was held in the prone position and the decisions to handcuff him and apply leg restraints. It is argued that, as should have been known to the officers, these sorts of actions would only provoke the deceased to greater resistance and violence with the consequent enhanced risk to his life by reason of the dangers of ABD.[58]In opening, Mr Thacker also relied upon the general or “framework” duty which arises under Article 2. In Nachova v Bulgaria [2006] 42 EHRR 43, a case involving the use of firearms, the ECtHR explained the need for the national law to secure a system of adequate and effective safeguards against arbitrariness, abuse of force and even against avoidable accident (referring to Makaratzis v Greece [2015] 41 EHRR 49). The court referred to the need for law enforcement agents to be trained to assess whether or not there is an absolute necessity to use firearms not only on the basis of the relevant regulations but also with due regard to the recognition of respect for human life as a fundamental value. However, in closing, it was accepted that, having heard and considered the evidence of Mr Read, it would be open to the court to find that at least one part of the Framework Duty had been satisfied.[59]I should indicate that Mr Read, who is a police trainer, gave evidence of the training given to the police both as part of their fundamental training at the Hendon Police College and also as part of their ongoing updating training in Officer Safety in how to deal with persons suffering from Acute Behavioural Disorder and other mental illnesses. I was shown a training video (which the police officers confirmed they had seen) where not only was there footage of an actual incident which arose in Camden which had been filmed on CCTV, but also reconstruction of how officers may deal with a person suffering from ABD. Training and guidance given to the officers in how to deal with mental illness follows the approach represented by the mnemonic “CARES” as set out in the poster at page 905 of the trial bundle. Thus, officers are taught to consider the following skills in order to communicate more effectively with a person suffering from mental illness: Contain the situation Approach within view of the person. Avoid approaching from behind. Reduce distractions – helmet off, turn radio down, one officer talking. Explain what you are doing (simple language) and listen to the person. Slow down your actions and give the person more space. Although Mr Thacker agreed that, on the face of it, the training described by Mr Read and shown in the DVD and documentation was adequate to satisfy the framework duty, he pointed out that the training needs to have been delivered properly and effectively. He submitted that, on the evidence, I should find that there was poor understanding by the officers which led to PCs Davies and Pether failing to follow the CARES approach and that this betrayed a failure to comply with the Framework Duty.[60]Mr Thacker further submitted that the court should also find a breach of Article 3 ECHR, the duty not to subject someone to inhuman and so called degrading treatment. He submitted that for the deceased, a vulnerable person, to have been subjected to force by a large number of police officers, to have been held in a prone position in public for a number of minutes and to have had handcuffs and leg restraints applied when he was a person who was suffering from mental health issues could be found to have amounted to breach of Article 3.

The Defendant’s Submissions

[61]For the Defendant, Miss Dobbin submitted in her closing written submissions that, taking all the circumstances of this incident into account, the court can and should take an “overarching view of this incident” as not breaching Article 2 ECHR. She relied on several general reasons: i) The officers believed the deceased to be seriously injured when they approached and their approach was solely motivated by their concern that he was injured; ii) They could not have known that the deceased’s life was at risk when they approached; iii) The deceased reacted with violence towards them; iv) There was nothing they could do in the circumstances other than try and restrain the deceased; v) The timeframes involved were far too short to have appreciated the deceased’s life was at risk; vi) It was in any event necessary for them to get the deceased under control because of the risk he posed to them, to others and to himself; vii) Restraint became first aid within minutes of the officers confronting the deceased.[62]In relation to the “operational” duty, Miss Dobbin accepted that it may apply in situations where there is a “real and immediate risk to life”. However, by reference to Van Colle v Chief Constable, Savage v South Essex NHS Trust [2009] 1 AC per Baronness Hale and Rabone v Penine NHS Trust, she submitted that the threshold to be met is high and rarely met. She submitted that the general approach to the duty is that it has to be considered at the time of the existence of the threat, not with hindsight. Only if it is proved to the requisite standard that it is known (or ought to be known) that the life of an individual is at real or immediate risk will the courts go on to consider whether there were others steps reasonably available to the state agent so as to avoid the risk. She submitted that the operational duty must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources.[63]Miss Dobbin submitted that, on the fact of this case, the operational duty does not arise at all. She contrasts those cases where it had been held to be both engaged and breached where there was a specific known and well understood appreciation that an individual’s life is at risk as opposed to knowledge based upon observation or information provided in a matter of seconds. Reliance is put upon the circumstances; this was not a person held in custody or held in a psychiatric hospital or where, as in Štefančič, the operation was planned in advance, with the opportunity to take measures to avoid or minimise risk, but rather the response to a call at 7am that threats were being made to kill the staff at the hostel, with the opportunity of the officers to plan things amounting to no more than a few seconds, if that. She submits:
“In this case the duty does not arise at all because neither PC Davies or PC Pether knew (or could be regarded as having ought to have known) that [the deceased’s] life was at a real and immediate risk because of ABD when they approached him.”
[64]Even if the operational duty is engaged in this case, Miss Dobbin submits that it was not breached. She submits that the deceased left the officers with no other option than to restrain him by his reaction and response to their approach. Once it is recognised that restraint was necessary, she submits that the force used was reasonable and proportionate particularly if the court finds, as she submits I should, that the deceased was on his front for no more than a minute before being rolled onto his left side as had been the evidence of, for example, PC Armstrong. In any event, she submits that, viewed as a whole, the short period of time that the restraint took place and the speed with which the officers applied first aid together with the fact that an ambulance had been called within one minute of attendance and was on the scene within ten minutes or so thereafter shows that appropriate concern was being paid to the deceased’s health and safety in very difficult circumstances encountered by the police officers.[65]In relation to Article 2(2) EHCR, Miss Dobbin submits that this is not in fact an exhaustive provision as to all the circumstances in which the state may use force on an individual. She said that force may also be used upon an individual for their own health or welfare, for example, in a healthcare setting or where force is used to protect an individual. In relation to the principles set out in Štefančič (see paragraph 52 above), she accepts that Article 2(2) may be engaged where death is not the intended consequence of the force used but she adds two observations: first, this approach is applied in cases where the use of force is potentially lethal, for example the use of firearms where shots are fired that are not intended to kill; secondly it is applied where it is “foreseeable that the force used carries risk”. She draws a distinction between the use of force which is inherently potentially lethal and force which is not of that nature but nevertheless results in death. Thus, she submits that the test of strict proportionality must be judged by regard to what is known and understood at the time but it cannot be applied as though it is known and understood that the force used is potentially lethal in the same way that a firearm is.[66]Miss Dobbin furthermore made submissions in relation to Article 3 and remedy.[67]In her oral submissions to me, Miss Dobbin emphasised the importance and significance of the fact that, when the police officers approached him, the deceased was covered in blood. She submitted that it is simply not realistic that they should have known of a real and immediate threat to life from what they did and knew. She did not accept that even if there was a failure to follow training (which she did not accept) this was necessarily a breach of the operational duty.[68]In addition, Miss Dobbin raised an issue of causation. She submitted that even if the initial approach was inappropriate, the court should find that any alternative approach, for example more in line with the CARES approach, would have resulted in the need to use restraint in any event. She relied upon not only what had happened before in the hostel as seen on CCTV and described in paragraphs 5 to 9 above of this judgment but also on the evidence of the Defendant’s medical expert, Dr James, who stated that ABD is characterised by a high level of violence. She pointed to the way that the deceased punched out at the officers as soon as they approached, their evidence on this matter being corroborated by the CCTV.[69]In relation to the force used during the restraint, Miss Dobbin cautioned against making any assumptions from the fact that the deceased collapsed and sustained a cardiac arrest: because of the deceased’s underlying coronary vulnerability and pre-existing health problems, she submits that the fact of collapse does not and cannot indicate overuse of restraint. Here, the deceased did not suffer positional asphyxiation: rather it was the struggle that caused the collapse.

The Claimants’ Closing Oral Submissions

[70]In his closing oral submissions, Mr Thacker disputed the suggestion that the circumstances in which the use of force is justified set out in Article 2 are not exhaustive.[71]Mr Thacker re-emphasised that the force must be limited to only that which is strictly necessary by reference to the general principles set out at paragraph 93 of Nachova v Bulgaria [2006] 42 EHRR 43:
“The court must subject allegations of breach of this provision to the most careful scrutiny. In cases concerning the use of force by State agents, it must take into consideration not only the actions of the agents of the State who actually administered the force but also all the surrounding circumstances including such matters as the relevant legal or regulatory framework in place and the planning and control of the actions under examination.”
Mr Thacker submitted that the obligation to minimise the risk to life also applies to an operation which arises in a spontaneous situation.[72]In relation to the facts of this case, Mr Thacker expanded upon the submissions he had made in his written closing submissions. He submitted that the officers, in their initial approach to the deceased, acted impulsively and failed to follow their training. As an example of this, he referred to the failure of PC Davies and PC Pether to put on gloves even though there was a significant amount of blood.[73]In relation to the restraint, Mr Thacker expanded upon his submissions that the length the deceased was held in prone was excessive and there was unnecessary and lengthy use of handcuffs and leg restraints. He pointed to evidence given by PCs Molloy and Scott-Denness that they had applied more force in response to the deceased’s resistance and submitted that this was tantamount to an admission that the risk was not minimised because the officers knew or ought to have know from their training that this was not the appropriate response to a person suffering from ABD. He submitted that, given the number of officers attending, there was the opportunity for properly thought-through decisions to be taken which took full account of the risk to the deceased rather than split second decisions.

Discussion

[74]Although the deceased was in a vulnerable, indeed arguably precarious, physical condition by reason of his coronary arterial disease and he exacerbated that condition himself by taking cocaine and inducing an acute behavioural disorder, the agreed evidence of the medical experts leads to the conclusion that the restraint used by the police was contributory towards the deceased’s death in a way which was more than minimal and was therefore causative, within the accepted jurisprudence of the ECHR . In those circumstances, the jurisprudence arising out of article 2 ECHR has consistently confirmed that it is necessary for the National State to carry out a rigorous, thorough and independent investigation into the circumstances of the death. In my judgment, that obligation was probably satisfied by the investigation of the IPCC alone. If not, then it was certainly satisfied by the inquest into the events touching and concerning the death of the deceased carried out in 2015. Finally, this trial, with the opportunity for the police officers in question (except for PCs Davies and Peters) to be cross-examined and for their actions to be investigated in detail fully satisfies those requirements.[75]Furthermore, I accept the applicability and relevance of the principles set out by the ECtHR in Štefančič at paragraph 65, cited in paragraph 52 above. In the light thereof, it seems to me that it is not possible, as was submitted by Miss Dobbin, simply to take an “overarching” view of this incident as not breaching Article 2. It is necessary to conduct a searching and critical examination of the actions of the police officers because of the tragic outcome in this case and the consequence that Article 2 ECHR is engaged. Thus, it is necessary to ask whether the force used was “strictly proportionate to the achievement of the permitted aims.”[76]As I have already indicated, the positive obligation to conduct a proper investigation into any death for which the State may bear some degree of responsibility has been fulfilled. Furthermore, in my judgment, the State fulfilled its framework duty in providing to the police officers appropriate and necessary training in the use of restraint, in the protection of the welfare of the person being restrained and, in particular, in the way to deal with those suffering from mental illness including ABD. Nor do I accept that there was a failure to implement the training. On the basis of the evidence of Mr Read as well as the evidence from the officers themselves, in my judgment the training was appropriately implemented. Even if it were my view that the officers had failed strictly to follow that training, which it is not, the speed with which events moved forward and the fact that “agony of the moment” decisions were taken which would make such failure understandable and excusable in these circumstances. Such decisions would not deprive the Defendant of its defence in relation to the “framework” duty.[77]In my judgment, the real issue in this case for me to decide is whether the Defendant brings itself within the exception to Article 2(2) ECHR, namely whether the deceased’ death resulted “from the use of force which is not more than is absolutely necessary (a) in defence of any person from unlawful violence”. The initial restraint[78]The first question is whether restraint was necessary at all. I need to decide whether PC Davies and PC Pether acted precipitously, without thought and in a way which provoked violence rather than avoided it when they got out of the first police car to arrive and ran over to where the deceased was. Should they have taken a few seconds to consider the situation, put on gloves and discuss their best approach? As seen on the CCTV, as the car draws to a stop PC Davies opens the door, she steps out the second that the car comes to a stop and she runs round the back towards the deceased. At the same time PC Pether gets out of the driver’s seat and they approach the deceased together. In my judgment, the officers cannot reasonably be criticized for so doing. Every situation is different and the officers were aware that members of the public were concerned, indeed frightened, by what the deceased was shouting and doing. They had reports that there had been threats to kill. Most importantly, they were faced with a man who was covered in blood and was behaving bizarrely including doing such things as putting a recycling bin on his head. Insofar as they felt that the priority was to get over to him and assess the situation face to face, including an assessment of the deceased’s need for assistance and medical care, they did what they considered instinctively to be the right thing. In my judgment they cannot be criticized for so doing. Other officers might have taken a more considered approach, with more regard for their own safety, but it seems to me that what PC Davies and PC Pether was essentially brave and fearless. Criticism of them would be harsh and, in my judgment unwarranted.[79]Furthermore, it is my assessment that some form of restraint was inevitable in this case. The deceased, by his actions in the few minutes preceding the arrival of police, by his words and behaviour and by his immediate response to the arrival of the police in throwing punches and moving threateningly towards PC Pether, windmilling his arms, made physical restraint inevitable. In my judgment, even if the officers had approached in a different way, perhaps walking instead of running and approaching the deceased more circumspectly, it is almost certain that they would have been met with the same response. There was nothing that they could have done, in my view, to have avoided the physical confrontation which ensued. In the circumstances, I find that the initial use of force was “absolutely necessary (a) in defence of any person from unlawful violence”. The persons in question were the police themselves. In addition, members of the public were at risk of unlawful violence from the deceased although I find that this did not feature as part of the reason for the use of force at the time. The Extent of the Force Used[80]The next question that therefore arises is whether the force that was used was no more than was “absolutely necessary”. Did the officers take all reasonable steps to minimise the risk to the deceased and to prevent his life being endangered?[81]From the timing of events, it appears to me that the maximum length of time that the deceased was held in a prone position (face down) was six minutes, but on the facts as I find them, the actual time was probably closer to four minutes. In my judgment, there was probably two minutes initially when the first five officers to attend attempted to restrain the deceased using just their hands. However, they were largely unsuccessful because the deceased was slippery with blood and they were unable to get hold of him with a good grip. Furthermore, he was using all of his strength to resist - strength enhanced by his ABD – and he was bucking and squirming as described by Ms West in her evidence (“body popping or doing the worm”). Once other officers arrived, it became possible for them to seek to apply handcuffs and it seems to me that it is likely that this too took one or two minutes with the handcuffs going on the left wrist and then the right wrist at about 07:09. The deceased was then rolled onto his side and the cuffs were taken off very quickly, not as some officers said within 5-10 seconds but probably within 30 seconds or so. By this time, I find that the deceased was no longer struggling, resisting or shouting because his reserves had been used up and his body was beginning to shut down. He started to struggle for breath and to turn blue. In addition, he started to suffer fits. As soon as this happened, I consider that the situation was promptly recognised by the police officers who quickly appreciated that this was no longer a person who needed to be restrained but a person who needed urgent help. At 07:12:24, a message was received “male is fitting” and the officers were effectively calling for urgent help from the London Ambulance Service. The ambulance arrived about three minutes later and the deceased received prompt medical attention from the paramedics as well as the attending officers.[82]In the circumstances, in my judgment, through the evidence which the Defendant has led, which I largely accept, it has been shown that the deprivation of life which occurred in this case is not to be regarded as having been inflicted in contravention of Article 2 because it resulted from the use of force which was, on the facts as I have found them, no more than was absolutely necessary in defence of the police officers from the deceased’s own unlawful violence. In those circumstances, it is unnecessary for me to find whether the justifications in Article 2(2) for deprivation of life are to be considered exclusive or whether, as submitted by the Defendant, they can properly be expanded into action and force taken to give assistance and medical attention to a person who is unwell, whether mentally or otherwise. I find that the Defendant has brought itself within the exception of Article 2(2)(a).[83]For the sake of completeness, I should mention that although I find that the deceased was not held in prone for longer than was necessary for him to be brought under appropriate and safe control, I also find that, for the reasons which were expressed by the officers in their evidence, it was reasonable, proportionate and appropriate that they should seek to apply handcuffs and leg restraints. In fact, the handcuffs were on for a very short period of time and there is some doubt whether the leg restraints were ever effective given that they had been put on the wrong way so that the velcro was ineffective but in any event they played little or no part in the restraint amounting to use of force which led to the death of the deceased.[84]Turning, then, to the issues which Mr Thacker submitted arose for decision, my conclusions are as follows: i) Whether the Defendant was in breach of the operational duty under Article 2 because of the unjustified use of force upon the deceased by police officers. In my judgment, there was no unjustified use of force and therefore no breach of the operational duty. ii) Whether the Defendant breached the operational duty because the officers failed to take reasonable steps to protect the deceased’s life. I find that, as soon as it was realised that the deceased’s life was at risk, the officers did all that they could to assist him, both in giving first aid themselves and in calling for medical assistance. Unlike in a case where obviously lethal force is used (for example, by officers drawing weapons and shooting at a person) when the risk to life is clear from the outset, here the risk to life did not become apparent until the deceased started to turn blue and fit, and at that stage the officers acted appropriately and promptly. iii) Whether the Defendant was in breach of the general (or framework) duty under Article 2, in that it failed to have any or any adequate systems in place to deal with and/or protect individuals in the deceased’s position. The Defendant had a system of training, including in how mentally disturbed people should be dealt with, which fulfilled its “framework” duty under Article 2. In my judgment, no amount of training could have prevented the physical altercation which arose in this case and the consequent need for restraint. iv) Whether the Defendant was in breach of the general duty under Article 2 because it failed to implement, properly or at all, any systems that were in place. I consider that there was no such breach. The officers were appropriately trained. They reacted to a dynamic situation in which they found themselves in a way which they instinctively felt was best to assist the deceased and preserve his life. They had no reason, at that stage, to consider that the deceased’s life was at risk at all, never mind as a result of their actions. The tragic outcome does not vitiate, in my view, my finding that the general duty under Article 2 was fulfilled. v) Whether the Defendant breached the deceased’s rights under Article 3 by subjecting him to inhuman and/or degrading treatment. It follows from my findings that there was no such breach. vi) Whether the Defendant breached the deceased’s rights under Article 3 because the police officers failed to take steps to protect him from inhuman and/or degrading treatment. Again, it follows from my findings that there was no such breach. vii) If the Claimants are successful in their claims, or any of them, what remedies should be granted. If I am wrong in my assessments above, and if it were found that there had been a violation of Article 2, whether alone or in combination with Article 3, then I would have found that the Claimants were each entitled to the sum of £10,000 in damages. These sums would have been reduced from £20,000 each by reason of the deceased’s own actions in provoking the reaction of the police officers and thus reflecting his own part in his death by taking cocaine and entering into a self-induced state of psychosis. In reaching these sums, I took into account the evidence of the deceased’s mother, father and brother which I of course accept completely.[85]I understand that my final remarks will be of little consolation to the family given the outcome of this claim and my rejection of it and my finding in favour of the Defendant. However, it would be remiss of me if I failed not only not to express my condolences to the family for the loss of their loved one, whatever the circumstances, but also if I did not pay tribute to the way in which they conducted themselves throughout the trial, which included hearing evidence from police officers which they will have found difficult to accept and hearing details of the deceased’s last moments which will have been extremely distressing. At all times they behaved with dignity and restraint, and I only wish that I could have reflected that in a different outcome.[86]Nevertheless, there must be judgment for the Defendant.

order

Pether, Molloy, Cohen, Scott-Denness, Armstrong, Thorp, Keel, and Gray. PC Davies did not give evidence: she is seriously ill and her statement was served under the Civil Evidence Act and allowed into evidence. I bear in mind that there was no opportunity to cross-examine her and that her evidence is weakened accordingly. PC Peters did not give evidence either. There was also an agreed witness statement from Lydia Rose West. Ms West was a passer-by who saw something of the episode from a short distance away.

Cited in 1 later judgment