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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 >> Neville & Ors v The Commissioner of Police of the Metropolis  EWHC 20 (QB) (12 January 2018)
Cite as:  EWHC 20 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| CAROL NEVILLE
(suing as representative of the estate of
- and -
- and -
|- and -
|THE COMMISSIONER OF POLICE OF THE METROPOLIS
Clair Dobbin (instructed by Metropolitan Police Service Directorate of Legal Services) for the Defendant
Hearing dates: 27, 28, 29, 30 November, 4 December 2017.
Crown Copyright ©
Mr Justice Martin Spencer:
Events leading up to the arrival of the police
(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.
"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.
(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.
"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."
"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
|07:04:18||PC Pether and PC Davies|
|07:04:22||PC Molloy and PC Cohen|
|07:06:00||PC Armstrong and PC Peters|
|07:07:02||PC Keel and PC Thorp|
|07:07:22||2 further police officers arrive.|
Thus, over a period of three minutes, 12 police officers attended the scene.
|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
"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."
"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"
"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."
"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."
"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.
"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
"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."
"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.
"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."
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."
"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.
"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."
"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.
"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.
"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.
"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.
"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 2˝ 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
"(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)."
"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."
The IPCC Investigation
"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."
"[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.
The Legislative background
"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:
(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."
The Convention rights applicable are those protected under Articles 2 and 3 which provide as follows:
"Right to life
(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
No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
The issues to be decided
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
"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)."
(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  2 AC 72).
"…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."
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  29 EHRR 245, Van Colle v Chief Constable of the Hertfordshire Police  1 AC 225 and Rabone v Penine Care NHS Foundation Trust  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.
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.
The Defendant's Submissions
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.
"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."
The Claimants' Closing Oral Submissions
"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.
The initial restraint
The Extent of the Force Used
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 Ł10,000 in damages. These sums would have been reduced from Ł20,000 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.