Sunday, June 04, 2006

Have A Go Hero

Last week I dealt with a two day trial in a Magistrates Court that nearly turned in to a miscarriage of justice.

The case involved five defendants, I represented one of the defendants. Essentially an incident had occurred in a street late at night where two youths (one was armed with a large knife) had approached a group of three people and attacked them. My Client was one of the group of three. All five defendants had been charged with the offence of using threatening words and behaviour and a number of the defendants had been charged with possession of a bladed article.

The facts of this case were very simple. The two youths had attacked the group of the three. There was then a general fight where the two youths got a bit of a kicking and then the Police arrived.

On day one of the trial the Crown Prosecution Service were asked if they would bind over the five defendants and after negotiations broke down all the defendants had to decide did they want to run the risk of being convicted, or plead guilty to obtain credit for a guilty plea. There was some very good CCTV evidence that clearly showed each defendant engaged in the offences that they were charged with, the question was could the defence rely on a defence such as self defence to have their defendant acquitted? Eventually the other two out of the group of three pleaded guilty. My Client decided he had the stomach to fight and wanted to go to trial. The two youths also decided to go to trial.

The prosecution case had been very badly prepared and had as many holes in the evidence as a lump slice of Swiss cheese. The barrister representing the two youths kept chuckling to himself that his youths were probably the most guilty out of the lot, and that they were going to walk out of the trial at half time because the identification evidence against them was so weak. The two youths had given no comment interviews at the Police Station and had admitted to nothing. Unfortunately my Client had not been represented at the Police Station and he had given an account to the Police full of horrible comments that sounded like he had gone over the top in attacking the youth with a knife, and therefore gone beyond self defence.

The half way point in the trial came and the barrister was right, his Clients walked out of the trial as the Prosecution case against his Clients was so weak they could not establish their identity on the CCTV because the Prosecution lacked a commentary on the CCTV or identification evidence to establish which youth was which. I could not exploit this point as my Client had made comments admitting his involvement in this incident!

At the end of day one my Client was the last person left in the trial. We moved on to day two. My Client gave evidence and stuck to his self defence and defence of others speech. I managed to convince one of the group of three who had previously pleaded guilty to give evidence one behalf of my Client on day two to corroborate his account.

The Magistrates went out to consider the case, and came back and acquitted my Client.

Looking back on the case I have no doubt that my Client was justified in what he did. He was approached by two youths, one holding a knife who were intent on causing trouble. My Client gave the youth with a knife a good kicking, and the Court found that he acted in self defence - even though the youth was left on the floor unconscious. This have a go hero was not convicted - although he probably should have been.

16 comments:

Anonymous said...

Interesting case. I have one question, Gavin. In the last para you say both that your client was justified in what he did, and also that he should have been convicted. Seems to me, a layman, that these are not consistent - can you explain?

thanks!

Anonymous said...

Another example of why the country is going the way it is.

A person who had a knife then goes on to beat someone senseless.

Well done Gavin, another one for the CV hey, a partnership awaits.

Gavin said...

In reality the man was jujstified in giving a yob a kicking, but legally speaking he went beyond self defence - in reality he should have been convicted.

Gavin said...

Anon, You said, "A person who had a knife then goes on to beat someone senseless." You have not read my post correctly. The chap I was talking about disarmed the youth with the knife and then gave him a kicking. Does that make it more socially acceptable to yourself?

Anonymous said...

Thanks the the clarification of my (the first) comment. How shocking that there is a difference between common sense and the law!

Bryn, North Wales, UK said...

"even though the youth was left on the floor unconscious".............
I suggest that there is a great deal of moral justification for this outcome, and that the knife user may have learnt something by the experience! I agree that as the law currently stands, the defendant MAY have gone a little too far - but which of us, if pushed to a barehanded fight against a knife, would have such fine control over our actions?
Good decision by the bench, I think.

IMHO, the knife user is lucky in that he apparently did not need prolonged hospital treatment. (Gavin, please correct me if I am wrong in this assumption).
I look forward to the enactment of proposed new laws which will give people greater powers of self-defence, especially within their own homes.

Anonymous said...

The law already gives plenty of power in relation to self defence. People just dont understand (which hasnt been helped by the tabloid papers).

Its not about being socially acceptable, but doing the right thing in the circumstance.

Oh and Gavin, did the chap call the police afterwards? Was his "kicking" done for self defence or was it to teach him a lesson.

To put it into perspective, how would people react if that had been a police officer?

reg hollis said...

Absolutely! The above comment by anon sums it up brilliantly. I'll tell you who else would have such fine control over their actions.... the hundreds of police colleagues that I have worked alongside over the last 17 years! can you imagine the furore if when confronted by an offender armed with a knife I or a colleague beat him to an unconcious state!

Bryn, North Wales, UK said...

The difference being that Police Officers on duty are rather better equipped & trained than ordinary members of the public, who may not lawfully carry CS gas & batons, and are unlikely to be wearing a stab vest or be trained in the techniques of disarming & arresting an armed man with a minimum of reasonable force.
Police Officers are correctly held to a higher standard of behaviour as part of the normal "checks & balances" of society, as the authority they wield must be balanced by responsibility. The vast majority of Officers walk this narrow line with courage & integrity, and with pride in the office they hold.

Let us also be precise in our comparisons : A group of three uniformed Police Officers attacked by a pair of youths, one of whom is wielding a knife, would stand off and use CS/Taser/other non-lethal after appropriate warning. An offender who forced the officers to the level of force sufficient to cause loss of consciousness would either be very stupid, or mentally ill, or very drunk, or out of their head on drugs (or any combination you choose...), and the evidence would bear this out during the inevitable investigation!
This degree of "fine control" is expected of a trained & equipped officer, but it should not be expected of an untrained and barehanded member of the public.

If the three officers were off duty and not equipped, I would expect them to apply simple HSE risk assessment ; we're not equipped, stand off, call for backup, avoid contact if possible, but be prepared to do what is necessary to protect ourselves and other members of the public, within the limits of the current laws on self-defence.
If this results in the yob being knocked or kicked unconscious, no problem.
AS LONG AS HE IS HOLDING THE KNIFE AND IS CONSCIOUS, HE IS A POTENTIALLY LETHAL THREAT TO EVERYONE ELSE.
If this is THEN FOLLOWED UP by "a good kicking", then the kicker/s should be prosecuted, and a bench or a jury should decide guilt based on the evidence available.

Anonymous : "people just don't understand....." This is one reason the new laws are being proposed; so that members of the public do have a much clearer & unambigious understanding of their right of self defence.

Reg : If you are indeed a serving officer, please read my comments above, thoroughly. If you disagree with me, please show both my posts and yours to a supervisory rank, and ask their opinion on the matter....

Anonymous said...

Betterto be tried by 12 than carried by six.

10 years to go said...

As an occasional Custody Sgt if they had been three decent young men subjected to an unprovoked assault who had stopped when there was no longer a threat,I would likely have refused charged without recourse to CPS.
Note there was no complaint of assault as presumably this would have caused the knife wielder to identify himself hence the S4POA charge.
However the information laid out is somewhat scant.
Was it a gang fight or an argument over drugs, did your client start/provoke the incident, did he have a history of assaults and drunken yobbery, did he behave like an arse when the law turned up?As a defence solicitor whos regard for truth and accuracy should be second to none Gavin, you are running a risk of adding to the tabloid hysteria the recieved wisdom of which is that anyone defending himself against the forces of evil will end up in the dock. That is not so.
As a policeman I would happily use a great deal of force against anyone using a weapon, the operative word is reasonable not minimum. Your client did not have time to run off and consult Blackstones and the average overweight lumbering copper living on kebabs, caffeine and five hours sleep a day (or is that just me)hasn't time to run off and become a blackbelt in some martial art to allow him to disarm someone wielding a knife as some above posters think is the case. Reg I would happily shoot someone threatening my life with a knife, beating him unconcious would not worry me as it should not. I would expect an investigation but I would not expect to be prosecuted if my actions were reasonable. How many Police officers have been seriously hurt because they havent had sufficient knowledge about justifiable use of force?

reg hollis said...

Bryn

thank you for the lesson in H&S and the art of dynamic risk assessment.

Indeed I am a serving officer and I am also of a supervisory rank involved in operational policing.

I do not disagree with your general comments although I cannot recall during my service having received any training in the suppression of human emotions, the "fight or flight" theory effects officers also.

My point in the original post was aimed at the general reaction the public / media etc have when officers use force

"If you are indeed a serving officer, please read my comments above, thoroughly. If you disagree with me, please show both my posts and yours to a supervisory rank, and ask their opinion on the matter.... "

Re the above Bryn, your point being?

Bryn, North Wales, UK said...

Reg Hollis: Hello!
Taking your points in order....

"lesson in H&S..."
Not trying to be a smart-arse here, just trying to be precise in expressing what I (a member of the public who has needed the helpful service of the police, and is appreciative) would expect of a trained and experienced officer IN THE DIFFERING CIRCUMSTANCES OUTLINED ABOVE. If you disagree with anything I say, I am happy to listen to another point of view.

"I am a serving officer....."
For the purpose of this discussion, so stipulated. Pointless of me to bring it up really, as I will never be able to check your warrant card! No offence intended.

"fight or flight....."
I have no personal experience of the degree of training officers have to go through re. dealing with armed offenders; however, I am astounded that the defensive training does not include some form of instruction in emotional control, as a basis for avoiding panic and loss of control. I agree that any officer, training & equipment notwithstanding, would be at least nervous (or indeed frightened) by the situation, but I would expect that same training & equipment to give them the confidence to act in a controlled manner. I emphasise CONTROLLED; not WITH RESTRAINT. I stand by what I said above; if the yob acts in an extremely violent manner, he can reasonably expect to end up injured or unconscious if the officers find that level of force appropriate in dealing with the problem, e.g if CS etc. had failed to subdue said yob.

"general reaction of the public/media...."
a) the media.... With a few exceptions, the second-lowest form of life on the planet, just above the politicians. If you are expecting moral standards or principled behaviour from the tabloids (chav fodder) or the centre-left propaganda favoured by the chattering classes, you will be forever disappointed. BUT THIS IS NOT THE PROBLEM. The problem lies with the gutless politicians and senior police commanders who will willingly sacrifice a junior officer for the sake of their own careers, when they see critical stories printed about certain operations. These stories, of course, will be sensationalised to sell more papers, and biased in favour of the editor/owners point of view. Any resemblance to the true facts will be coincidental.....
The Police Service is an easy & highly visible target, especially given the creeping political influence on senior commanders. Any story alleging police brutality is going to sell more papers.
The problem for the junior officer is the choice on offer : Does he/she use insufficient force and risk serious injury or death as a result, or do they cause a violent offender to become unconscious (method irrelevant : could be CS, Taser, baton) in the certain knowledge that they will be investigated, possibly by people who can further their own career or political ambitions by finding the officer to be at fault?
b) the public reaction.... IS NOT THE PROBLEM, except for the way politicans & senior commanders react to it. The public have no direct link to the true facts of what happened on any given occasion, and their outraged "letters to the editor" will most likely be based on what they have read in the same paper, rather than the truth.
All the above is grossly unfair to the average officer who joined the service "to make a positive difference". This will only change when politicians and the media are held to account for the lies they speak or print (this may cause a slight backlog in the courts a while.....).

Re. my comment "If you are indeed a serving officer, please read.....etc"
This was intended to provoke informed discussion on this important issue, from any officer regardless of rank.
However on re-reading, it also makes me sound like a smart-arse throwing out random challenges.......therefore I withdraw it, with apologies.

*****

10 years to go : Hello!
Have you ever considered a move to North Wales? :-) You sound a great deal like the village constable in the small village I grew up in. (Village bobby - those were the days! I still have the helmet badge he gave me on retirement, before North Wales Police came into existence).

10 Years to go said...

I take that as a compliment Bryn. The job the police do today is the same as the one we did 50 yrs ago and probably the same as the one we will be doing in 50 yrs. The technowledgy has changed and things go a little bit faster but I believe the basic qualities of what makes a good operational policeman are the same.
When we start worrying about what the press may say about a police operation we take our eye off the ball. Be this our reaction to a confrontation in the street or our response to a terrorist threat. The reaction of the press is of no relevance and we should do our job regardless. The public, often even the not so law abiding, will generally be on our side. If we let Newsnight and Fleet Street influence our actions we may as well go and live in America.
I haven't had my back to the wall for a few months, but whenever it happens public perception of the incident can play a part, there is no point in upsetting people, but, and its a big one, that falls a long way below my safety and that of my colleagues. I would also add that despite generally slagging off the bosses, they tend to be supportive in these situations.

I remember once giving evidence in court which went along the lines of "Well Your Worship, after that I punched him in the side of the head and he fell over." The chairman of the bench got visibly excited and the baddy was found guilty after the minimum of deliberation. This was only about five years back so I think it is safe to say there is still a fair bit of support about for robust policing

reg hollis said...

Bryn,

No offence taken, apology accepted. Your reply makes a much better read!

I do indeed have thick skin after 17 years of abuse from the not so general public.

Maybe you should contact your local constabulary and enquire if they do "ride-a-longs". My own force does and you will quickly witness first hand the issues facing operational officers. It can be a real eye opener trust me.

Bryn, North Wales, UK said...

10 years to go : "....the bosses, they tend to be supportive....."
Glad to hear it! We the blog-reading public read many stories implying that support is not forthcoming from senior commanders when the political midden starts erupting......perhaps someone could set up a blog to redress the balance...?

Reg : "Ride-alongs"
Thank you, well worth looking into for my own interest & education, and for my son who will be looking at "work experience" sessions from school next year (age/H&S/insurance etc. permitting).