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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Gilchrist v Greater Manchester Police (Rev 1)  EWHC 1233 (QB) (15 May 2019)
Cite as:  EWHC 1233 (QB),  MHLR 68
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QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
B e f o r e :
| MICHAEL GILCHRIST
(by his Mother and Litigation Friend, NOVLYN GRAHAM)
- and –
|THE CHIEF CONSTABLE OF GREATER MANCHESTER POLICE
Graham Wells (instructed by Greater Manchester Police Legal Services) for the Defendant
Hearing dates: 19th, 20th, 21st, 22nd & 26th March 2019
Crown Copyright ©
Mrs Justice O'Farrell:
Timeline of events
i) the first cycle lasted 4 seconds; and
following a 10 second gap
ii) the second cycle lasted 2 seconds.
i) PC Millington reported that: "Male is Michael Gilchrist 53 yrs", and gave his address (although the flat number was incorrect); and
ii) PC Hunt reported that: "Male is bleeding heavily from both wrists."
i) the first cycle lasted 7 seconds;
ii) the second cycle lasted 5 seconds; and
iii) the third cycle lasted 2 seconds.
There was then a gap of 5 seconds during which PC Schofield re-loaded the cartridge and discharged the taser for the second time, with short gaps of about 1 second between the cycles:
iv) the fourth cycle lasted 29 seconds;
v) the fifth cycle lasted 5 seconds;
vi) the sixth cycle lasted 6 seconds;
vii) the seventh cycle was discharged in angle drive against the claimant's upper back/shoulder and lasted 13 seconds.
There was a gap of 27 seconds and:
viii) the eighth cycle was discharged whilst the claimant was lying on the ground and lasted for 5 seconds.
"Male is now on the floor secure."
"Male has deep laceration to left wrist. No officers injured."
"It is apparent this male is in need of urgent medical treatment as a result of cuts to his wrist and as such, officers are attempting to restrain him in order that he can receive medical treatment to stop bleeding."
"Once a patrol comes free please can we consider a check at his h/a… according to housing he is only tenant but [n]eed to check there are no other injured parties."
i) Was the use of any force justified?
ii) If so, were the methods of force used justified?
iii) Was the extent and level of force used justified?
"(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."
(2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose."
"The tort of battery requires the actual infliction of unlawful physical contact. The act of battery itself may be intentional or reckless but an intention to injure is not required. Once a prima facie battery is established the burden of proof in a civil action shifts to the Defendant to justify the battery, in this case by the Appellant's establishing that his officer acted in lawful self-defence, the prevention of crime or to effect an arrest. Section 3 of the Criminal Law Act 1967 empowers any person to use such force as is reasonable in all the circumstances. Section 117 of the Police and Criminal Evidence Act 1984 provides that a constable exercising any powers under the Act (for example arrest, search, and detention) may use reasonable force."
"Officers are trained where to aim, the likely effects of the discharge, the particular vulnerabilities of some individuals, and how to assist those hit by a Taser. They are trained to use the Taser in an initial five second burst and discouraged from keeping their finger on the trigger longer, but it is accepted that a longer discharge may be necessary. Conditions on the street cannot be replicated in a training centre and those responsible for the training recognise that one five second burst may not suffice to subdue a suspect. Further, an officer is unlikely to have the luxury of mature reflection. He will not have the time to reflect upon his target or the precise length of time for which he discharges his weapon. He may even freeze in a highly charged situation such as the present. Thus, the courts must have regard not only to the rights of the person at the receiving end of the Taser but also to the challenges facing a police officer endeavouring to maintain law and order in a volatile situation."
"It is lawful for one person to use force towards another in self-defence or in defence of another. He may use only reasonable force, that being a question of fact. The law does not require those faced with circumstances of this kind to weigh carefully the degree of force used. To a considerable extent, reactions will be instinctive. What is reasonable in all the circumstances calls for an evaluative judgment having found the facts… the defendant must show that he honestly and reasonably believed that it was necessary to defend himself or defend another, in addition to showing that the force used was reasonable in all the circumstances."
"… there is no general rule that the police are not under any duty of care when discharging their function of preventing and investigating crime. They generally owe a duty of care when such a duty arises under ordinary principles of the law of negligence, unless statute or the common law provides otherwise. Applying those principles, they may be under a duty of care to protect an individual from a danger of injury which they have themselves created, including a danger of injury resulting from human agency …"
"The four cases of Hill, Brooks, Smith and Michael make it clear that they do not touch on the liability of police officers if by positive negligent act they cause physical harm to individuals or damage to property. That is apparent from:"
i) the approval in those cases of the decisions in Rigby v Chief Constable of Northamptonshire (negligent use of a CS gas canister in an attempt to force an armed psychopath from a shop in which he had gone to ground) and Knightley v Johns (negligent organisation of traffic in an emergency situation); and
ii) the explicit statement by Lord Keith in Hill at 59B, approved in subsequent cases, that:
"There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts …" "
" The Court of Appeal was correct to emphasise the importance of not imposing unrealistically demanding standards of care on police officers acting in the course of their operational duties. That is most obviously the case where critical decisions have to be made in stressful circumstances with little or no time for considered thought. This point has long been recognised. For example, in Marshall v Osmond, concerned with a police driver engaged in the pursuit of a suspect, Sir John Donaldson MR stated, as noted at para 47 above, that the officer's duty was to exercise "such care and skill as is reasonable in all the circumstances". He went on to state that those "were no doubt stressful circumstances", and that although there was no doubt that the officer made an error of judgment, he was far from satisfied that the officer had been negligent (p 1038). The same point was made, in a context closer to that of the present case, by May LJ in Costello v Chief Constable of Northumbria  ICR 752, 767, where he remarked that "liability should not turn on ... shades of personal judgment and courage in the heat of the potentially dangerous moment".
 It is also necessary to remember that a duty to take reasonable care can in some circumstances be consistent with exposing individuals to a significant degree of risk. That is most obviously the case in relation to the police themselves. There are many circumstances in which police officers are exposed to a risk of injury, but in which such exposure is consistent with the taking of reasonable care for their safety. Equally, there may be circumstances which justify the taking of risks to the safety of members of the public which would not otherwise be justified. A duty of care is always a duty to take such care as is reasonable in the circumstances."
The use of Taser
"Managing conflict and responding to violence are core policing functions. The police response is underpinned by the Human Rights Act and in particular the obligation under article 2 of the European Convention on Human Rights to uphold the right to life.
In light of the Human Rights Act the need for a range of options by the police for dealing with conflict management situations has become imperative for the service. The service is required to justify that any use of force is lawful, proportionate, necessary and reasonable in the circumstances."
"… The extension in the use of Taser is intended to provide officers with a differentiated use of force. Taser will be deployed alongside other personal safety equipment, work-related equipment and tactical options already available. It is intended to complement and not replace alternative equipment and strategies.
The use of Taser should be regarded as one of a number of tactical options available to an officer who is faced with violence or the threat of violence. Its purpose is to temporarily incapacitate an individual in order to control and neutralise the threat that they pose.
It is not to be used to inflict severe pain or suffering on another in the performance or purported performance of official duties…
The use of Taser will be informed by reference to the ACPO National Decision Model and is intended to provide Taser trained officers with an additional means of dealing with violence or threats of violence of such severity that it is likely that they will need to use force in order to protect the public, themselves and/or the subject(s).
The tactical option and use of the X26 Taser, as a less lethal option, in situations other than public disorder, will be governed by the overarching principles and guidance contained in the COP – Authorised Professional Practice – Armed Policing (APP – Armed Policing) …
The X 26 Taser is not a replacement for conventional firearms. It is a less lethal option that should be considered and managed alongside conventional firearms and other tactical options…"
"Experience has shown that the visible presence, drawing of the Taser from the holster, placing the red dot of the laser sighting system or arcing of the Taser is often sufficient to deter an offender and therefore peacefully resolve a potentially violent in incident.
The normal reaction of a person exposed to the discharge of Taser is the loss of some voluntary muscle control resulting in the subject falling to the ground or freezing on the spot. This may result in immediate and in voluntary clenching of the fingers and or the arms rising uncontrollably…
In most cases Taser application will be sufficient to render a subject incapable of commencing or continuing an attack and is likely to result in the subject collapsing to the ground. The effect is not intended nor is it likely to render the subject into a state of unconsciousness. The device relies on physiological effects other than pain alone to achieve its objective, although pain is the main factor when it is used in drive stun mode.
When both barbs attach correctly with sufficient spread, the effects are likely to be instantaneous. It should, however, be remembered that no incapacitating device is universally effective and there may be individuals on whom Taser may not be effective at all or only partially so."
"Whilst the 5 second cycle can be repeated if the incapacitation effect does not appear to take effect, officers should consider other options, as there may be technical or physiological reasons why the device is not working as expected on a particular individual."
i) where it has been employed without success in neutralising the threat posed and having reconsidered the intelligence and threat assessment its reapplication would be unlikely to be effective; and
ii) where there is a risk of flammability, including where a person has been sprayed with an incapacitant containing a flammable solvent, such as CS spray.
i) gather information and intelligence;
ii) assess threat and risk and develop a working strategy;
iii) consider powers and policy;
iv) identify options and contingencies;
v) take action and review what happened.
"The term emotionally or mentally distressed (EMD) is used to describe individuals who may behave in an unexpected, extreme or challenging manner as a result of a mental health issue, or emotional distress."
The fact that the subject is EMD does not in any way reduce the harm they may cause to themselves or others if the incident is not resolved. However, officers must be aware that an inappropriate or disproportionate response to someone experiencing EMD could, itself, escalate the situation, causing greater harm to the subject or to others…
A person that is mentally vulnerable is someone because of their mental state or capacity may not understand the significance of what is said to them…
If information and intelligence reveals the presence of a factor which can influence behaviour and alter response, police should take this into account when considering their approach.
Officers must be aware of how their presence and tactics might be interpreted by the subject. It is important, however, that the basic principles of tactics are complied with in order to reduce the potential threat by and/or to the subject as soon as practicable.
The following actions can help create opportunities for the subject and officers to have more time and space to defuse the situation:
- Be prepared to back off
- Use of effective cover
- Give space and time if possible
- Early negotiation
- Evacuate immediate area."
Use of force
i) PC Webb's first use of CS spray;
ii) PC Farrell's use of Taser;
iii) PC Webb's second use of CS gas;
iv) PC Schofield's use of Taser;
v) PC Schofield's kick to the claimant's legs;
vi) PC Webb's tackle to bring the claimant to the ground;
vii) detention on the ground using handcuffs (front or rear stack) and leg restraints; and
viii) the disputed third use of CS spray.
i) Mr Andrew Gilchrist, Michael's brother;
ii) Mrs Tracey Gilchrist, Andrew's wife (Michael's sister-in-law);
iii) Ms Justine Agnew, Michael's neighbour;
iv) Mr Dwayne Gilchrist, Andrew's son;
v) Mrs Novlyn Graham, Michael's mother;
vi) Mr Robert Hunt, retired Police Constable;
vii) Mr Stephen Webb, retired Police Constable;
viii) PC Mark Farrell;
ix) PC Samuel Schofield;
x) PC James Lovelady;
xi) PC Andrew Wild;
xii) Mr Carl Morris, retired Police Sergeant;
xiii) PC Raza Afzal;
xiv) Mr Philip Mack, GMP's Force Taser Officer working within the Firearms Policy and Compliance Unit;
xv) Mr Colin Wilbraham, a Force Taser Officer working within the Firearms Policy and Compliance Unit.
Context of the incident
"There is one guy on Bideford drive… Covering in blood, walking around and smashing things around… The guy's just outside… You know broken glass, I've seen a guy walking through, he's going to… Moor Road now… The guy, the black guy who does it is just wearing trousers, he's covered by blood… It's a black guy, just with trousers, wearing trousers, shouting, and I heard just the broken glass…"
"… I got up and looked out of the back window of my bedroom. I saw Michael walking around the back of the house looking towards his own flat. Michael did not look right.
"I then saw a police van coming around the corner. The van stopped outside my father-in-law's (Frank's) house. It stopped at the side of the road. It was positioned so that it was driving into the Estate. It blocked my view of Michael, who was on the footpath opposite Frank's house. At this stage Michael was standing outside Frank's house.
Two policemen jumped out of the van and went towards the front of the van. My view was somewhat obstructed from the window. I could not see or hear Michael from where I was standing at the window. I waited briefly at the window and expected to see the policeman get hold of Michael…
The policemen then came back into sight. They were walking backwards. Michael then came into view. He was roughly 6 yards away from the policemen at this stage. Michael was walking from side to side and not directly at the policemen…
"I ran down the stairs and out of the front door… it would have taken me no more than 30 seconds from the time that I left the window until I arrived on the street to talk to Michael and the policemen.
I ran around the bend at the side of my house and came to the straight road. I could see Michael and the 2 policemen, who were further up the road. The police van was parked up on the left-hand side of the road. Michael was standing still. He was before the ginnel and the police officers were about 5 yards from him. Michael was standing still and repeating the words "yeah, yeah, yeah.""
"My uncle was shouting my Dad's name repeatedly, saying "Andrew, Andrew, Andrew". He was also banging on the front door. I remember being very worried so I jumped out of my bed and looked out of my window. I could see my Uncle standing outside the front of our house without a shirt on. He had blood on his body…
Both myself and my Dad ran towards my Uncle. As we were running down the road towards him the police officers and cars arrived at the same time. I think there were about 4 police officers to begin with, although I am not sure how many vehicles they arrived in …
We all arrived to near where my uncle was stood at about the same time …
My Uncle was standing in front of my Grandfather's house when the police officers approached him. He looked incredibly scared and his movements were very slow and robotic. It was clear that he was very disorientated and was not sure where he was or what was happening to him."
He did not consider that Mr Gilchrist presented as aggressive but noted that he had blood on his hands and one fist was clenched.
"We drove into Bedford Drive and as we turned the corner heading in the direction of the flats at the end of the road we could see a black male in the middle of the road… The claimant appeared to be staggering in the direction of our police vehicle…
We drove straight up to the claimant and as we stopped the police van and were about to get out to see if he needed assistance, the claimant lunged forward, raising both arms into the air. Roaring, he slammed his hands down onto the bonnet of the van …
The claimant was about 5'10" tall. He was of heavy build with short black hair. He was bleeding heavily from his wrists and this sprayed onto the bonnet and up the windscreen. He had a glaring, vacant expression on his face and looked extremely angry…
PC Webb reversed the van away from the claimant, about 30 yards and we both got out of the van. A few minutes later I was aware of other patrols pulling up behind a vehicle.
The claimant was on the nearside of the police vehicle and closest to me so I held out my hand to him and asked if there was anything I could do and whether he was okay. The claimant lunged towards me trying to grab my coat which was splashed with his blood. The claimant was making a repetitive grunting sound and never actually spoke any words. I stepped away from the claimant …
It was obvious to me that the claimant was suffering from some form of mental illness or condition or that he was under the influence of alcohol or drugs.
It was my view that the claimant needed to be detained so that he couldn't cause further harm to himself or to anybody else… PC Webb and I did not know anything about the claimant other than that he was incoherent, appeared to be very angry and had a lot of blood on him. We didn't know whether he had a weapon on his person or whether he was a victim of crime or an offender. It seemed to me more likely that he was an offender, given his anger and aggression.
I recall that PC Webb and I initially tried to get the claimant to calm down and to stay back. He was also told to get down on the floor. The claimant did not respond to any of our commands."
"I parked the police van on Bideford Drive near to a passageway that I now know to be Wellesbourne Drive."
My recollection is that the male who I now know to be the claimant appeared almost from nowhere. He was bare chested. He was wearing jogging bottoms or shorts, I cannot remember which. He was quite big and looked muscular. His fists were clenched and there was blood all over his hands. The claimant had something in his hand. I think that it was in his right hand. It was something dark coloured and I couldn't tell what it was.
The police van was stationary in the street. The claimant came up to the van and he banged his clenched fists down on the bonnet. Blood sprayed up onto the windscreen.
My first impression was that the claimant was very, very irate. He was showing aggression to us by coming up to the van and basically attacking it. My first thought looking at the blood and the way he was dressed and because of his demeanour was that he had assaulted someone. He looked like an aggressor. I was thinking to myself he's really hurt somebody.
PC Hunt and I were still in the police van and the claimant then turned around and started to head back towards the high-rise flats. I now know that this was in the direction of his home address but I did not know that at the time.
I got out of the police van and I ran and got round the front of the claimant, so that I was facing him (and the police van) and I stood still. My thoughts were that the claimant had injured somebody and I did not want him to continue going where ever he was going. I needed to stop him; it was urgent and I had to find out what had happened.
The claimant was standing still. He had his arms tensed at about a 30 degree angle from his body, slightly in front of him and his fists were clenched by his side. The claimant was grunting repetitively uh, uh, uh. He was not saying any words."
PC Webb's first use of CS spray
"I started to talk to the claimant along the lines of stay there just stop don't come any closer. I was not shouting at him; I was speaking firmly and clearly. I put my hand up, palms facing him, in a stop gesture…
The claimant then started to come towards me…
Everything about the way he was behaving caused me to believe that he had attacked somebody, causing that person serious injury (as evidenced by the blood), and he was now coming towards me.
I took my CS gas off my belt and held it up, to give the claimant a visual warning. I estimate that I was about 15 feet away from the claimant and I sprayed the CS towards his face. I am pretty sure that this was the first time I had ever used my CS gas. After I sprayed the CS gas towards the claimant, he rubbed his eyes for a second. That was the only effect that it seemed to have on him and he continued to come towards me."
"I thought he'd hurt someone. I thought he was the aggressor. I was concerned about his aggression. I thought that it was appropriate to use the spray because I felt vulnerable. Michael Gilchrist was closing in on me. I could have moved back and waited for back up but we were short of resources and that could take some time. I was concerned as to what he had done."
PC Farrell's use of taser
"In my service to date I have never used my CS spray or struck anyone with my baton … The incident giving rise to this civil claim was the first occasion on which I had deployed my Taser…"
As I walked over, I could hear that the claimant was making a loud noise, a repetitive grunting sound. He was also making a strange forward movement towards PC Hunt and PC Webb. He was close to the officers and was pacing, stepping on and off the pavement, stepping towards the officers and then stepping back but remaining close in front of them. I would describe his behaviour as odd and unpredictable. He appeared to me to be working himself up to something. The grunting noise was very clearly audible and he presented as aggressive and threatening.
There was no obvious explanation such as an accident scene or anyone else who could explain whether the claimant had committed a crime or was a victim of crime. His behaviour was aggressive and I could not definitively attribute it to anything. It could have been the result of intoxication (drink and/or drugs), some kind of mental breakdown or the response to having committed a crime or having suffered a trauma. I was concerned for the safety of PC Hunt and PC Webb.
It was very clear to me that the claimant needed to be stopped, detained and treated for whatever injuries he had sustained or whatever the cause of his behaviour…
I have recorded in my pocket notebook that I saw the claimant turn aggressively towards PC Hunt and noticed that the claimant had a black unknown object in his right hand…
As I approached, suddenly, the claimant turned around and faced me. I have recorded in the Taser deployment form that he walked towards me with clenched fists and was shouting and appeared to be out of control. I need to clarify that the claimant was not shouting words or anything coherent; he was making the loud grunting noise that I have described. I also want to emphasise that this happened very quickly. The claimant was only about 4 to 5 feet away from me and based on what I had already witnessed, this was now a change and an escalation in the situation and the threat posed by the claimant.
I deployed my Taser at the front of the claimant's body. My recollection is that the claimant froze momentarily and dropped towards the pavement and then sprang up again. He didn't fall fully to the floor. It was as if the Taser had only a momentary effect."
"Deployed Taser. Barb connected to front of male's stomach. 5 sec deployment. No effect. Second barb has displaced. Further 5 secs. No effect - male fell forward onto front of police vehicle to floor."
"[Michael Gilchrist] turned and came towards me. I felt threatened and therefore deployed my taser… I fired into his chest."
"When Michael turned, I took a step back. He was coming at me, covered in blood. I didn't want him to grab me. I still had distance but he was closing down on me. It happened in a matter of seconds… I felt a threat; he came at me too quickly."
PC Webb's second use of CS spray
"PC Farrell deployed his Taser and I saw straightaway that the barbs did not connect properly with the claimant's body. I did not see the Taser have any effect at all on the claimant and he continued coming towards me.
I sprayed my CS gas a second time. On this occasion, I estimate that the claimant was about 10 feet away from me. As I did, PC Farrell shouted he's been tasered and I replied it didn't connect.
When I used the CS gas a second time, the effect was exactly the same as the first. The claimant just rubbed his eyes and carried on coming towards me.
On both occasions I used my CS gas in circumstances in which the claimant was coming towards me with his arms tensed by his side, fists clenched, his eyes fixated on me and giving me cause to believe that I was going to be attacked."
Michael Gilchrist's family involvement
"I am absolutely certain that by this stage, when I arrived, no tasers had been deployed and neither had any pepper spray. There were only 2 police officers present at this time, both of whom were men."
My instinctive reaction was to go straight to Michael and stand right next to him on the pavement. I was not at all worried that Michael would be violent. That was just not how he was. I went to touch Michael's hands and said to him:" Michael what have you done?" I asked him this because I could see the blood and from the location of the blood it looked as though Michael had cut his wrists… when I looked again I could clearly see that Michael had not cut his wrists. The cuts were on the back of his hands.
"I explained to a male police officer that Michael was my brother, that he suffered from autism, that he lived in the flats on the estate and that he was mild mannered ... The police told me to get back."
"My recollection then is of PC Mark Farrell arriving, drawing his Taser and I think, telling the claimant to get down on the ground. There was no change in the claimant's behaviour and PC Farrell discharged his Taser. One of the 2 barbs missed the claimant and it appeared as if nothing had happened…
I was standing behind PC Farrell at this point and a male approached me and tapped me on the shoulder. He told me that he was the claimant's brother and that the claimant suffered from mental problems but hadn't had an episode like this for over 20 years. He pleaded with me not to hurt his brother.
My recollection is that it was not until later and after PC Webb had used his CS gas and PC Farrell had deployed his Taser that the claimant's brother made himself known to me and asked that officers not hurt his brother …"
"The next thing that I remember is four or five policemen were facing and looking at Michael, standing in a semicircle around the front of him. They were relatively close to the van and about 3 to 4 yards away from Michael. Michael was not moving toward them. He was standing on the sport and rocking from side to side.
The next thing that I saw was a policeman moving towards Michael. Michael did not respond to this at all… The officer was holding the canister no more than a metre away from Michael's face and something was discharged. I could hear some sort of spray being discharged at least twice. Michael's response was to stagger backwards. He was clearly in visible distress with his hands covering his face."
"When I got outside, I could see lots of police officers. I would say 7 or 8 police officers were there. I could also see a number of police cars. I could see Michael standing in the middle-of-the-road outside number 6 Bideford Avenue. I could see my husband standing nearby on the curb and the police surrounding Michael…
I could hear Michael repeatedly saying yes yes yes… He looked to me to be confused but not angry or aggressive…"
Within minutes of me being outside a male police officer stepped towards Michael and sprayed him in the face with pepper spray… No warning was given…
Pretty much immediately after the male police officer pepper sprayed Michael within seconds or perhaps a minute another police officer tasered him. Again no warning was given to Michael before he was tasered…
I believe that this first Taser was to Michael's chest. I say this because I recall that when he was later tasered in his back, he already had probes sticking out of his front…
Michael's reaction to each Taser was to stop moving for a second and then he just carried on doing what he was doing previously, trying to walk away from the police officer… After Michael was tasered in the back, he was immediately tasered again in the back of the leg and I saw Michael buckle to his knees… I recall Michael was tasered 3 times in quick succession…"
"Whilst I was checking Michael's hands he opened his hands and he was holding his watch in one of his hands. I am sure the police officers who were present saw Michael open his hands and saw the watch. I also said to Michael something like you've not broken your watch have you?" Because I knew he was very fond of his watches and in attempt to try to get him to converse with me... I do not accept it could have been mistaken for a weapon."
State of knowledge of the police
PC Schofield's use of taser
"I know that shortly after I deployed my Taser, PC Webb deployed his CS incapacitant spray. I saw PC Webb use his CS spray and that it had no obvious effect on the claimant. I decided not to deploy my Taser again. I know that there are risks associated with using Taser and CS spray in proximity. I believed that I had deployed my Taser effectively and that despite this, the Taser had had no incapacitating effect on the claimant. I had also watched PC Webb's use of the CS spray having no real effect… The records that at 0605 I spoke to comms on my radio and reported male has been tasered and sprayed with CS spray.
Almost immediately I became aware of PC Schofield arriving. I knew that PC Schofield was Taser trained and as he passed me, I said words to the effect of he's been gassed."
"I have deployed a Taser on many occasions in the course of my police service, both before and after 6 June 2014."
I recall that PC Farrell said something to the effect of Sam, he's been sprayed with CS…
My immediate thought on seeing PC Farrell was that he had used his Taser and had been incapacitated due to exposure to CS spray. I believed that the claimant had somehow withstood the effects of CS gas and the Taser. I drew my Taser from its holster so that it was ready for use.
I had no way of knowing why the claimant was behaving as he was … The presence of so much blood and the state the claimant was in made me think it more likely that he had attacked someone than that he had been attacked ...
I formed the view that he had swung at the officers. I was around 2 m away and I knew that the Taser could be effective in incapacitating the claimant and preventing harm coming to PC Hunt and PC Webb.
I aimed my Taser at the claimant's chest area. The Taser barb was connected and I couldn't see any problem with the spread but it had absolutely no effect on the claimant. There was no evidence of NMI… The claimant was not incapacitated in any way; he remained upright and came towards me. He still had the same look of anger on his face, his eyes were bulging and staring and he was frothing at the mouth. I backed off and reloaded my Taser as I have been trained to do in such a situation. There were other officers around who were continuing to speak to the claimant.
I reloaded the Taser and aimed a second time and this time I kept the Taser cycling. The claimant was slowed down by this but remained upright.
… I used my Taser to angled drive in his upper back shoulder blade, whilst holding onto his opposite upper shoulder. The Taser did not incapacitate the claimant and he swung round with his arm…"
Physical force to bring Michael Gilchrist to the ground
Detention on the ground using handcuffs (front or rear stack) and leg restraints
The disputed third use of CS spray
i) PC Webb's use of CS gas on two occasions was justified use of reasonable force.
ii) PC Farrell's use of Taser was justified use of reasonable force.
iii) PC Schofield's use of Taser was not justified and the extent of the force used, namely eight cycles for a cumulative period of 72 seconds, was not justified. This deployment of Taser was unnecessary, unreasonable and inappropriate. It amounted to trespass to the person and the injury inflicted on the claimant was a breach of the defendant's common law duty of care.
iv) The tackles by PC Schofield and PC Webb to bring the claimant to the ground were justified use of reasonable force.
v) The defendant was justified in restraining the claimant on the ground, on his back with his hands cuffed in the front stack position, pending safe transportation by ambulance to hospital.
vi) I find that there was no further use of CS gas on the claimant once he was restrained on the ground.