Sunday 19 May 2013
Friday 17 May 2013
Stop and Tase? Criminal Law and Justice Weekly
Stop and Tase?
Date:
18th May 2013
Last
month saw the launch of the judicial review of the “Taser Roll-out
Programme”. The landmark challenge comes after the Metropolitan Police
Service and the Mayor’s Office for Policing and Crime (MOPAC) began the
roll-out of Tasers across all 32 boroughs of London without holding a
public consultation or providing the public with information about the
Programme. Forty officers in each borough will be trained to use the
Taser; eight officers per shift and two Emergency Response Teams will
have Tasers with them at any one time. The judicial review also raises
the issue that there was a legitimate expectation that the “Taser
Policy” across London would remain in force and that there is an
arguable breach of art.2 and 3 of the European Convention of Human
Rights in continuing with the implementation of the Programme.
A Taser is a device which can be used to incapacitate an individual. The Taser is classified as a firearm under s.5 of the Firearms Act 1968. When the Taser is pointed, a red laser sight dot appears on the target prior to the discharge of the cartridge. In the UK, police forces are permitted to use the X26 version. This has a single-shot cartridge and, when discharged, releases a barbed dart attached to the main device by insulated wires. The Taser has an operational maximum range of 35 feet. Its use is recommended within 21 feet of the target. When the Taser is fired, darts attach to the target and an electrical current is transmitted from the main device through the wires and into the body of the target, thereby incapacitating them.
Tasers have been available to the Metropolitan Police Service since 2003, initially restricted to the Firearms Command. In June 2007, the Metropolitan Police Service took part in a pilot programme along with 10 other forces. At the conclusion of the pilot in 2008, the Home Office authorized the expansion of the Taser to Specially Trained Units (STU). In London, the STUs were a selection of the Territorial Support Group. Since then, use of Tasers has been limited to these two groups, and the Metropolitan Police Authority (MPA) had oversight of their use. The creation of the Police and Crime Commissioner’s Office, by the Police Reform and Social Responsibility Act 2011, saw the abolition of the MPA in January 2012, with MOPAC taking over its role. The Deputy Mayor for Policing and Crime (DMPC) is now responsible for oversight of the police. However, there has of late been criticism as to the lack of transparency regarding his decision-making on Tasers and, in February 2013, the London Assembly’s Police and Crime Committee set up the Taser Working Group “to gather evidence on behalf of the Police and Crime Committee, particularly in terms of issues related to the governance of Taser deployment in London”.
A recent Freedom of Information Authorized Disclosure by the Metropolitan Police Service shows that Taser use across the boroughs of London has nearly doubled in one year, suggesting there is a heavy reliance on Tasers within the Metropolitan Police Service and that Tasers are being used as a weapon of compliance, rather than a weapon of last resort. The number of red dot and drawn incidences has trebled in a year, indicating that “lazy cop syndrome” is creeping into the Metropolitan Police Service.
In 2011, Tasers were used 300 times in total:
The recent cases of Ruddy v. Chief Constable of Strathclyde Police [2012] UKSC 57 and Commissioner of Police for the Metropolis (Appellant) v. ZH (by his father and litigation friend GH) (respondent) and (1) Liberty (2) Equality and Human Rights Commissioner (interveners) [2013] EWCA Civ 69 demonstrate that domestic courts are more prepared to hear arguments on potential violations of art.3 of the Convention than they were before.
In Ruddy, R had alleged that, after being arrested, he was abused, threatened with violence and assaulted by Strathclyde police officers. He claimed an award for damages at common law for loss, injury and damage suffered as a result of the actions of the police officers, and just satisfaction under the Human Rights Act 1998, s.8(3) for a breach of his rights under art.3 of the European Convention on Human Rights. R appealed against the decision of the Extra Division dismissing his action against the Chief Constable of Strathclyde Police and the Lord Advocate. It was held that R was entitled to bring an action in the Sheriff Court seeking damages at common law and under the Human Rights Act 1998 against the relevant Chief Constable arising out of the officer’s actions.
In the case of ZH, the Commissioner appealed against an earlier decision to award damages to ZH. ZH, a 16-year-old, was severely autistic and epileptic. He was taken by his carers to the local swimming baths. At the poolside, ZH became fixated by the water and did not move. After 30 minutes, the pool manager called the police. The police arrived and were informed by one of the carers that ZH was autistic and had an aversion to being touched. One of the police officers touched ZH gently on his back, at which point ZH jumped into the pool. He was lifted out of the pool by the police officers, placed on his back and restrained. After about 15 minutes, he was taken to a police van and placed alone in a cage. After about 25 minutes, his restraints were removed and ZH was released. It was held that the treatment of ZH amounted to a violation of his human rights and that the threshold of art.3 had been crossed.
Another significant point from the judgment comes at para.90, where it is held that “although the operational discretion of the police was important and had been recognized by the European Court of Human Rights, it was not sacrosanct and could not be invoked by the police in order to give them immunity from liability for everything that they did”.
This point strongly counters the argument that the Commissioner of the Metropolitan Police holds an unfettered operational discretion to roll out Tasers. It seems from domestic case law that no such power exists and that domestic courts are ready to test the immunity that the police have enjoyed for so long, especially when fundamental rights such those contained in art.3 are at stake.
Additionally, the failure of the DMPC to address the dramatic increase in compliance use by the Metropolitan Police Service could in itself be a violation of art.3. The DMPC, as a public officer, is responsible for ensuring that the state, in the context of policing, does not breach any of its human rights obligations. The misuse of a Taser would invoke the DMPC’s duty to take steps to protect the public from art.3 violations.
Urgent action needs to be taken against the use of the Taser as a compliance tool; otherwise we may enter a state of policing by force. This would not only damage the reputation of our unarmed police service worldwide, but would create animosity within communities where Taser use becomes prevalent. Youngsters may no longer be stopped and searched by officers from the Metropolitan Police Service but stopped and tased if they do not comply.
Author details
Solicitor-advocate specializing in Taser-related injuries at McMillan Williams, and Director of Police Action Centre.
A Taser is a device which can be used to incapacitate an individual. The Taser is classified as a firearm under s.5 of the Firearms Act 1968. When the Taser is pointed, a red laser sight dot appears on the target prior to the discharge of the cartridge. In the UK, police forces are permitted to use the X26 version. This has a single-shot cartridge and, when discharged, releases a barbed dart attached to the main device by insulated wires. The Taser has an operational maximum range of 35 feet. Its use is recommended within 21 feet of the target. When the Taser is fired, darts attach to the target and an electrical current is transmitted from the main device through the wires and into the body of the target, thereby incapacitating them.
Tasers have been available to the Metropolitan Police Service since 2003, initially restricted to the Firearms Command. In June 2007, the Metropolitan Police Service took part in a pilot programme along with 10 other forces. At the conclusion of the pilot in 2008, the Home Office authorized the expansion of the Taser to Specially Trained Units (STU). In London, the STUs were a selection of the Territorial Support Group. Since then, use of Tasers has been limited to these two groups, and the Metropolitan Police Authority (MPA) had oversight of their use. The creation of the Police and Crime Commissioner’s Office, by the Police Reform and Social Responsibility Act 2011, saw the abolition of the MPA in January 2012, with MOPAC taking over its role. The Deputy Mayor for Policing and Crime (DMPC) is now responsible for oversight of the police. However, there has of late been criticism as to the lack of transparency regarding his decision-making on Tasers and, in February 2013, the London Assembly’s Police and Crime Committee set up the Taser Working Group “to gather evidence on behalf of the Police and Crime Committee, particularly in terms of issues related to the governance of Taser deployment in London”.
A recent Freedom of Information Authorized Disclosure by the Metropolitan Police Service shows that Taser use across the boroughs of London has nearly doubled in one year, suggesting there is a heavy reliance on Tasers within the Metropolitan Police Service and that Tasers are being used as a weapon of compliance, rather than a weapon of last resort. The number of red dot and drawn incidences has trebled in a year, indicating that “lazy cop syndrome” is creeping into the Metropolitan Police Service.
In 2011, Tasers were used 300 times in total:
- Fired: 49
- Drive Stun: 9
- Red Dot: 142
- Drawn: 74
- Aimed: 19
- Arched: 7
- Fired: 56
- Drive Stun: 0
- Red Dot: 278
- Drawn: 212
- Aimed: 32
- Arched: 13
“The discharge of Taser is intended to mitigate
the threat by temporarily incapacitating the individual, not solely to
inflict severe pain or suffering on another in the performance or
purported performance of official duties.”
The use of a Taser as a compliance tool would therefore be considered
to be disproportionate, unlawful and unnecessary, and even constitute a
criminal act pursuant to s.134(1) of the Criminal Justice Act 1988.
There is also a potential breach of art.3 of the ECHR if used as a
compliance tool, as “no one shall be subjected to torture or to inhuman
or degrading treatment or punishment”. The threshold for an art.3 breach
can be found in the case of Ireland v. UK [1978] 2 EHRR 25 at
para.162: “Ill-treatment must attain a minimum level of severity if it
is to fall within the scope of art.3.”The recent cases of Ruddy v. Chief Constable of Strathclyde Police [2012] UKSC 57 and Commissioner of Police for the Metropolis (Appellant) v. ZH (by his father and litigation friend GH) (respondent) and (1) Liberty (2) Equality and Human Rights Commissioner (interveners) [2013] EWCA Civ 69 demonstrate that domestic courts are more prepared to hear arguments on potential violations of art.3 of the Convention than they were before.
In Ruddy, R had alleged that, after being arrested, he was abused, threatened with violence and assaulted by Strathclyde police officers. He claimed an award for damages at common law for loss, injury and damage suffered as a result of the actions of the police officers, and just satisfaction under the Human Rights Act 1998, s.8(3) for a breach of his rights under art.3 of the European Convention on Human Rights. R appealed against the decision of the Extra Division dismissing his action against the Chief Constable of Strathclyde Police and the Lord Advocate. It was held that R was entitled to bring an action in the Sheriff Court seeking damages at common law and under the Human Rights Act 1998 against the relevant Chief Constable arising out of the officer’s actions.
In the case of ZH, the Commissioner appealed against an earlier decision to award damages to ZH. ZH, a 16-year-old, was severely autistic and epileptic. He was taken by his carers to the local swimming baths. At the poolside, ZH became fixated by the water and did not move. After 30 minutes, the pool manager called the police. The police arrived and were informed by one of the carers that ZH was autistic and had an aversion to being touched. One of the police officers touched ZH gently on his back, at which point ZH jumped into the pool. He was lifted out of the pool by the police officers, placed on his back and restrained. After about 15 minutes, he was taken to a police van and placed alone in a cage. After about 25 minutes, his restraints were removed and ZH was released. It was held that the treatment of ZH amounted to a violation of his human rights and that the threshold of art.3 had been crossed.
Another significant point from the judgment comes at para.90, where it is held that “although the operational discretion of the police was important and had been recognized by the European Court of Human Rights, it was not sacrosanct and could not be invoked by the police in order to give them immunity from liability for everything that they did”.
This point strongly counters the argument that the Commissioner of the Metropolitan Police holds an unfettered operational discretion to roll out Tasers. It seems from domestic case law that no such power exists and that domestic courts are ready to test the immunity that the police have enjoyed for so long, especially when fundamental rights such those contained in art.3 are at stake.
Additionally, the failure of the DMPC to address the dramatic increase in compliance use by the Metropolitan Police Service could in itself be a violation of art.3. The DMPC, as a public officer, is responsible for ensuring that the state, in the context of policing, does not breach any of its human rights obligations. The misuse of a Taser would invoke the DMPC’s duty to take steps to protect the public from art.3 violations.
Urgent action needs to be taken against the use of the Taser as a compliance tool; otherwise we may enter a state of policing by force. This would not only damage the reputation of our unarmed police service worldwide, but would create animosity within communities where Taser use becomes prevalent. Youngsters may no longer be stopped and searched by officers from the Metropolitan Police Service but stopped and tased if they do not comply.
Author details
Solicitor-advocate specializing in Taser-related injuries at McMillan Williams, and Director of Police Action Centre.
Issue:
Taser Working Group
Gave evidence to the Taser Working Group, London Assembly on Thursday, 16 May 2013.
http://www.london.gov.uk/media/assembly-press-releases/2013/05/assembly-review-of-taser-expansion-in-london
http://www.london.gov.uk/media/assembly-press-releases/2013/05/assembly-review-of-taser-expansion-in-london
Thursday 16 May 2013
Interviewed on BBC Radio Shropshire
BBC Radio Shropshire - Eric Smith and Clare Ashford, 16/05/2013 http://bbc.in/11IknpH
Interviewed on BBC Radio Hereford & Worcester
BBC Hereford & Worcester - Howard and Toni at Breakfast, Taser use by West Mercia Police has more than doubled in the past five years http://bbc.in/11gXO5Z
Quoted in Chorley Guardian -14 May 2013
Sophie Khan, solicitor with McMillan Williams, one of the largest and
most successful firms of solicitors in the south of England, who has
taken on Mr Farmer’s case, said: “The civil claim will be lodged in the
High Court this week and the litigation procedure will then commence to
seek compensation for Mr Farmer against the officer who tasered him.”
http://www.chorley-guardian.co.uk/news/local/tasered-pensioner-to-sue-police-1-5665284
http://www.chorley-guardian.co.uk/news/local/tasered-pensioner-to-sue-police-1-5665284
Tuesday 14 May 2013
Quoted in Surrey Advertiser - 14 May 2013
Sophie Khan, who works for McMillan Williams Solicitors, specialises
in Taser-related injuries, and she said: “In Surrey and nationally,
crime has gone down. Where’s the argument for more Tasers?
“Policing in Surrey is working how it is and they don’t need a new tool or more kit.
“The safest way is for the police to negotiate with individuals and have a dialogue. The Tasers are a lethal weapon and should only be used where there’s a threat of violence with a gun or other weapon.”
Legally classified as firearms, Tasers were initially only carried by firearms officers but in 2007 the Home Office widened their use.
“There are a number of deaths that have been found by coroners’ and civil courts to be directly related to Tasers and compensation has been paid to families – in Canada, America and Australia,” said Miss Khan. “Tasers have caused my clients long-term injuries.
“There is no evidence that has been collated by the Home Office or the Metropolitan Police as to the consequences. For some reason, there's no research done into that area.
“They don’t want a report that can then be used against them.
“All the policy documents say there’s no injury risk but I’ve got 15 clients suffering from Taser injuries.”
http://www.getsurrey.co.uk/news/s/2134006_police_commissioner_argues_in_favour_of_tasers
“Policing in Surrey is working how it is and they don’t need a new tool or more kit.
“The safest way is for the police to negotiate with individuals and have a dialogue. The Tasers are a lethal weapon and should only be used where there’s a threat of violence with a gun or other weapon.”
Legally classified as firearms, Tasers were initially only carried by firearms officers but in 2007 the Home Office widened their use.
“There are a number of deaths that have been found by coroners’ and civil courts to be directly related to Tasers and compensation has been paid to families – in Canada, America and Australia,” said Miss Khan. “Tasers have caused my clients long-term injuries.
“There is no evidence that has been collated by the Home Office or the Metropolitan Police as to the consequences. For some reason, there's no research done into that area.
“They don’t want a report that can then be used against them.
“All the policy documents say there’s no injury risk but I’ve got 15 clients suffering from Taser injuries.”
http://www.getsurrey.co.uk/news/s/2134006_police_commissioner_argues_in_favour_of_tasers
Monday 13 May 2013
Quoted in Lancashire Evening Post - Tasered pensioner sues as investigation draws to end
Sophie Khan, solicitor with McMillan Williams, said: “The civil claim
will be lodged in the High Court this week and the litigation procedure
will then commence to seek compensation for Mr Farmer against the
officer who tasered him.”
http://www.lep.co.uk/news/local/tasered-pensioner-sues-as-investigation-draws-to-end-1-5663184
http://www.lep.co.uk/news/local/tasered-pensioner-sues-as-investigation-draws-to-end-1-5663184
Thursday 2 May 2013
Interview on The JVS Show - BBC Three Counties - 2 May 2013
BBC Three Counties Radio - The JVS Show, Anonymity, tasers and the team tackle your consumer problems from eleven http://bbc.in/ZmDPAm
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