|
ERIC
BASKIND LL.B (Hons) British
Self Defence Governing Body, Cheshire OFFICER SAFETY: IS ENOUGH
BEING DONE TO PROTECT OUR OFFICERS? Officer
safety is crucial to police training yet in many areas it is far from
satisfactory and leaves officers exposed to the many dangers associated
with modern-day policing. This
article examines some of the most important components of officer
safety and explains why officers are being placed at risk by a lack
of co-ordination and poor methods of training. It also sets out the
law relating to the use of force. introduction The term officer safety has been defined as "the
measures taken at the strategic, tactical and operational levels to
minimise the risk of harm from violence to officers"[1]
and its importance requires it "to permeate every aspect of policing,
visibly and coherently throughout the entire structure of the Service".[2]
It is because officer safety incorporates a number of inter-related
components that a fragmented approach is bound to be fraught with
danger. It is for this reason that a thorough review of the various
systems and strategies needs to be undertaken and a more co-ordinated
approach to officer safety developed. Officer safety
strategies must be overseen, both at national ACPO and individual
force levels, by the appointment of officers with sufficient seniority
and authority to ensure they are afforded the highest degree of importance.
This process would be enhanced considerably by the further appointment
of an external agency, competent within the field of personal safety
and related training matters, to work alongside these senior officers
and add valuable externality to the process. The benefits
to be gained from pursuing effective officer safety programmes are
enormous extending far beyond a reduction in the number of officers
who sustain injury as a result of their police work. Considerable
financial savings will be seen through reduced levels of sickness,
as well as greater efficiency resulting from improved officer morale.
There should also be a reduction in the high costs of litigation associated
with defending claims both from members of the public and from officers. Officer safety
has improved considerably over the past few years. However, without
further improvements, especially in connection with training, the
level and severity of assaults against officers will remain unacceptably
high. Assaults on police officers can have far-ranging effects extending
beyond those to the individual officer to the police service as a
whole: "For
the individual officer, assault victimisation can lower morale, threaten
individual authority, lessen situational control, and lead to the
infliction of serious injury or death. High rates of assault upon
officers can adversely affect the police profession, as well. It can
hamper the ability of agencies to recruit new officers; it can undermine
police-community relations and it can threaten the professional image
of practitioners."[3] It was noted
above that officer safety incorporates a number of inter-related components.
It is important to identify some of these components and to see how
they can be improved. risk assessments Officer safety
training must concentrate on those situations which statistically
show a high probability of assaults on officers. This is best achieved
by the monitoring of management information and the carrying out of
risk assessments. Risk assessments
should form the basis for the development of any officer safety strategy
and should be seen as a key part of the proactive approach to health
and safety management. The approach is proactive because it involves
identifying the potential for injury rather than relying on a reactive
approach where remedial action is not taken until after the damage
or loss has occurred. A risk assessment should not stop at officer
safety and should include an assessment of risks to other police personnel,
the general public and others who may be affected by the police activity. The information
generated from a risk assessment is of little value unless it is put
to effective use. Training, equipment requirements and deployment
strategies must be developed from this information. Although police
forces had, in a spirit of voluntary co-operation, previously recognised
the provisions of the Health and Safety at Work etc. Act 1974,[4]
it was not until the Police (Health and Safety) Act 1997 came into
force that the 1974 Act, as it applied to police officers, was placed
on a formal footing.[5] The management
of information should be seen as an integral part of the assessment
process and relies heavily on a comprehensive system of recording
incidents.[6]
All incidents should be recorded, not just those that result in injury
or the use of force. This is because those incidents otherwise than
when force has been used or where injury has occurred may indicate
a failure within the overall officer safety strategy and should be
seen as helpful predictors of potential future problems. Incidents which
should be recorded include: · where the officer has used force (whether or not to make an
arrest or an arrest is made) ·
where the officer draws his baton (whether or not it is subsequently
used) · where the officer draws his CS canister (whether or not it
is subsequently discharged or kept hidden from the subject) ·
where the officer takes any steps (including the use of tactical
communication) to counter a threat or perceived threat of violence · where the officer was assaulted (whether or not he took steps
to counter the same) All incidents
should be recorded on a standard report form and management should
ensure that all officers are aware of the importance of completion.
By the adoption of a mandatory standard-form approach for reporting
officers will be more inclined to report incidents and not feel that
their reporting will reflect badly on themselves or be seen as trivial.
The completion of the form will also help identify which use of force
strategies and officer safety equipment is proving to be most effective
and also those officers whose use of force might indicate a need for
retraining. A classification
system for all recorded incidents will enable management to build
a picture of the circumstances of incidents and also to concentrate
on those incidents which are either more serious or occur more frequently.
Where there are cases of repeated incidents of the same or similar
kind, urgent preventive action must be taken. Conversely, where the
classification system indicates only a few isolated dissimilar incidents,
preventive action may not be necessary. It should also
prove helpful to group together incidents according to their type.
For example, incidents which occur during arrests are fundamentally
different from those resulting from domestic situations. The responses
to them will also be different. The following
two figures illustrate a typical analysis of assaults on officers.
Figure 1 identifies the origins of assault incidents and their proportion
by category. It will be seen that 60% of all assaults arose from public
disorder, dispute situations and traffic stops. Figure 1 Origin
and proportion of assaults
Source: Police Research Group. Assaults on Police Officers.
August 1997 Figure 2 shows
how assaulted officers were injured. 43% of injuries occurred as a
result of either being punched, kicked or head-butted and 22% resulted
from a struggle. Figure
2 Causes
of injury
Source: Police Research Group. Assaults on Police Officers.
August 1997 Operational
briefings, debriefings and evaluations are also critical factors upon
which risk assessments should be based yet it has been noted that
"routine and formalised debriefing after operational duty is
rarely undertaken".[7]
Also crucial to officer safety is a force's operational deployment
strategy yet "in general, officers have limited information regarding
the times and places when they are most at risk and tend to rely on
anecdotal evidence".[8]
The information obtained from informed risk assessments should form
the basis of a force's deployment strategy by helping supervisors
identify those locations and times where risk is likely to be greatest.
This information should also be helpful in deciding when officers
should patrol in pairs or double crew.[9] As Her Majesty's
Inspector of Constabulary pointed out: "Officers
should be able to attend the scene of incidents with sufficient information
to enable them to carry out an informed personal risk assessment.
It should provide the basis for their actions, allowing them to minimise
the risk. For example, an officer attending a domestic violence call
should be made aware of any previous incidents at that location, their
nature and the people involved, together with any established operational
procedures. Officers will then be in a position to consider the appropriate
response and the need to provide additional protection by means of
suitable equipment and/or assistance."[10] Consulting
with officers and other appropriate personnel before a comprehensive
preventive strategy is implemented may help prevent problems of acceptability
particularly in terms of any adverse implications of any measures
which may have been overlooked. Examples of this are where traffic
motorcyclists felt that the carrying of the Monadnock PR24 XTS batons
were dangerous in the event that they sustained a fall from their
vehicles or where officers find the wearing of protective vests uncomfortable
for prolonged periods of time. Consultation is also important for
other reasons: officers and other police personnel are far more likely
to be committed to measures if they have had a part to play in their
design and implementation. The
likely effectiveness of measures should also be considered before
they are finalised with appropriate advice being taken where necessary.
It is evident that more than one preventive measure will be necessary
and, for this reason, it is vital to ensure that the combination of
measures chosen can work well together particularly if they consist
of both short-term and long-term measures or if different measures
are needed in different parts of the force. It
is also important to monitor carefully the effects of any preventive
measures once they have been implemented. Each measure should be monitored
independently so that any measures which do not work can be dropped
or amended. This will also enable the expansion of those measures
which have proven to be successful. It will be a useful exercise to
compare the level of violence and injury before any new preventive
measures are implemented to the level post-implementation. The policy
of recording all incidents discussed earlier will be helpful here.
It follows that if a preventive strategy is successful the number
and severity of incidents and the resultant injuries will have reduced
and this will be evident from the records. It is helpful
to consider the practice of dealing with assaults in six stages. Figure
3 shows the six-stage problem-solving approach adopted by the British
Self Defence Governing Body:[11] Figure
3 Six-stage
problem-solving approach to dealing with assaults quantifying the problem ä recording incidents ä classifying incidents ä identifying available preventive measures ä designing and implementing a preventive strategy ä monitoring the strategy Source: British Self Defence Governing Body, October 1998 Whilst
risk assessments will undoubtedly impact upon many organisational
issues their importance should not be overlooked. It has been said
that risk assessments: "represent
a significant opportunity for the police service to formalise the
arrangements for safeguarding staff and minimising their risk of harm;
the legal requirement to undertake risk assessments means that forces
cannot afford to pay lip service to their development. ... Her
Majesty's Inspector recommends any officer safety initiative in respect
of operational deployment, provision of equipment and training should
be conditional upon the completion of a full and informed risk assessment."[12] tactical communication and conflict management A confrontational
approach to policing is bound to be met with greater resistance and
violence than an approach which is more geared to problem solving.[13]
The more angry the officer the greater will be the level of resistance
they will face.[14] The reference
to "some officers forget that the best weapons they've got to
deal with potential violence are their brains and the ability to talk"[15]
ought to be taken as a severe criticism of the way some officers are
being taught to deal with violence and aggression and of how, in practice,
some officers actually deal with it. It must be the
case that an officer's safety can only be assured if a situation can
be dealt with otherwise than by physical intervention. Why is it therefore
that insufficient emphasis is being placed on tactical communication
and conflict management training and why is this not always included
at the outset of the training programme? Since the vast majority of
arrests occur without the use of force[16]
greater emphasis should be placed on this kind of training. Some forces
seem to pay an insufficient amount of attention to this important
area of officer safety which may result in officers having to resort
to the use of force when this might not be absolutely necessary. Greater use of
these skills should also contribute towards a less confrontational
style of policing as well as an improved police-public relationship.
A reduction in the number of complaints by the public and of assaults
on police should also be seen. There is evidence
that certain officers are repeatedly being assaulted. In an analysis
of the 116 incidents which occurred in one sub-division of Devon and
Cornwall Constabulary during 1990, 45% of the assaults (52 cases)
were sustained by just 20% of assaulted officers.[17]
Similar evidence of repeat assaults on certain officers can be seen
from the figures reported to Her Majesty's Inspector of Constabulary
during 1992.[18]
There could be several reasons for repeat assaults on certain officers.
It has been suggested that experience plays a large part with less
experienced officers being at greater risk of assault than their more
experienced colleagues. "Constables with less than six years'
service are assaulted at a rate of nearly two and a half times the
force average, whereas constables with over ten years' service are
assaulted at a lower rate than the force average".[19]
However, there may be other reasons for the difference in the rates
of repeated assaults. Officers of different age groups are sometimes
differently deployed and/or serve different environments. Further,
those officers who are subjected to repeated assaults may be adopting
a more confrontational style of policing. Better tactical communication
and conflict management training should prove helpful in all these
circumstances. defensive tactics training Officer defensive
tactics training has been, over the years, the subject of much criticism.
Generally, a programme known as Unarmed Defensive Tactics or UDT has
now replaced the earlier system of taiho-jutsu[20]
although some forces are incorporating taiho-jutsu techniques within
their UDT training syllabus. There are exceptions: for example, the
Metropolitan Police use an entirely different system of officer safety
training whilst some trainers in other forces have developed a range
of techniques of their own which they include as part of their defensive
tactics training courses. Techniques, which were originally devised
by the prison service also feature, in differing degrees, in some
forces' training programmes. This
lack of consistency runs contrary to the principles of best practice
which should transcend force policy and individual trainer preference.
Inconsistent standards and policies can too easily lead to unwelcome
criticism and costly litigation. Subject only to special circumstances
which may necessitate the adoption of different approaches to officer
safety training, such training must be consistent nationally, both
in terms of content and standards. This will require the monitoring
of trainers by their forces to ensure that national standards are
being satisfied and that inter and intra force variations are eliminated.
The externality referred to above will help forces achieve these quality
and consistent national standards. A nationally consistent standard
takes on a particular significance in operations involving mutual
aid between forces where differences in strategy and training can
prove dangerous. A simple example
of where consistency is lacking between forces (and sometimes within
forces themselves) concerns whether defensive training should be carried
out on mats. Some trainers say that mats are essential whenever the
training is likely to lead to an officer being taken to the floor,
while others say that training on mats is dangerous citing the many
injuries which have been sustained by officers who have tripped on
them. Those who advocate training on a bare floor also criticise mats
for impeding the smooth movement of feet which is essential if injury
is to be prevented. These differences of opinion are unacceptable
and dangerous. Mats are an essential safety feature and must be used
whenever techniques are being practised which may result in an officer
being taken to the floor. Good quality mats, which are properly fitted,
maintained and kept clean, do not slide to the extent that injury
is a foreseeable risk.[21] It is axiomatic
that the defensive skills taught to officers are operationally sound.
However, many officers complain that they are less than confident
in being able to defend themselves with the techniques some time later,
out of the confines of the gymnasium. There could be several reasons
for this. Firstly, officers are being taught too many techniques for
them to have any realistic chance of remembering and being able proficiently
of executing. Secondly, many of the techniques being taught are overly
complicated given the amount of training time made available for practising.
It has been noted that "most officers think they will not be
able to remember the various techniques in confrontation situations
and have forgotten them by the time they attend refresher training.
A study in one force has disclosed that up to 80% of officers assaulted
during the research period did not make use of self-defence techniques
to defend themselves, despite being trained to do so".[22]
In any event, more time should be made available for regular officer
safety training refresher sessions. Thirdly, several of the techniques
are less than satisfactory for self defence purposes. Fourthly, some
trainers are not proficient or suitably experienced in the techniques
themselves nor have adequate experience as trainers. This too often
results in unacceptable injuries to officers during training sessions. The test of whether
a technique is suitable for self defence purposes is not whether it
can be performed by a trainer or even by co-operative partners in
a gymnasium setting since, in these situations, the vast majority
of techniques ought to work. The only real test is whether the techniques
are capable of working in a real-life situation where the precise
method of attack and the strength of the assailant(s) are often entirely
unknown quantities. Furthermore, in the real-life situation, the "rules"
of the gymnasium are non-existent, the "stop" or "submission"
commands have no force and the officers will often only be able to
rely on those skills and equipment with which they have been provided. A further criticism
is that some of the methods adopted for training often fail to reflect
the realities of operational policing. Officers must, for example,
be given the experience of dealing with violence in situations of
darkness and when they are wearing full uniform, including, where
appropriate, appointments.[23] A national policy
setting out whether officer safety training is compulsory and whether
there are minimum standards which officers must reach during training
is urgently needed. This policy should also set out the position of
officers who do not reach acceptable standards or who do not (or can
not) participate in the training. For example, clarification is needed
as to whether an officer is considered fit for duty if he is unfit
for, or otherwise refuses to participate in, officer safety training.
Further, should operational restrictions be placed on such an officer?
It is submitted that such an officer could leave his force open to
criticism and possible litigation if a colleague is injured in circumstances
where it can be established that had the injured officer been accompanied
by a suitably trained officer, the injury would have been prevented. The effectiveness
of any officer safety training programme must invariably depend on
the proficiency of the officers who ultimately depend on it. Proficiency
can only be achieved by practice through attending regular refresher
training courses.[24]
Some of the reasons which have been noted for officers failing to
undertake regular refresher training courses include other pressing
operational commitments and a reluctance by supervisors to lose staff.[25]
It is simply unrealistic to expect officers to be able to execute
these skills with any degree of proficiency without such regular training
periods being undertaken. CS incapacitant spray The additional
protection and reassurance officers gain by the carrying of CS spray
seems well established. Some officers even feel that it has made the
baton redundant leading to some not carrying their baton whilst on
duty. This practice has received criticism from Her Majesty's Inspector
of Constabulary. CS spray has
a number of advantages over other defensive tactics: ·
its success is not dependent on the strength or fitness of
the officer ·
it requires less training than other forms of defence skills ·
it allows the officer(s) to maintain a greater distance from
the subject · it is psychologically easier to use than the baton or some
other forms of active defence ·
its effects on subjects are generally consistent thus allowing
officers to take control of a situation more easily and also to administer
aid to those who have been sprayed ·
it is less likely to result in serious injury to the subject · the amount of force is measured (unlike with the baton where
it is often difficult to judge the amount of force necessary to bring
the subject under control) ·
it can be used in places of restricted space where the baton
cannot[26] ·
it is less likely to be viewed as overly violent by bystanders It
will be seen from Figure 4 that self defence was the primary reason
for the use of CS in well over half of those cases where the spray
was drawn. Figure 4 Primary
reason for drawing CS
Source: Police Research Group. A Review of Police Trials of
the CS Aerosol Incapacitant. November 1996 Over-reliance
on CS spray is dangerous not least because of its occasional failure
to discharge or have an effect. CS spray can have a failure rate of
10%. If officers have relied on the anticipated effects of the incapacitant
at the expense of other forms of defence, their safety (and that of
others) will be jeopardised. Figure
5 sets out the time taken for CS to take effect. In 71% of cases it
took effect in less than 5 seconds, having immediate effect in 37%
of these cases. However, in 9% of cases it had no effect whatsoever
and in a further 9% of cases it took more than 10 seconds to take
effect. Figure 5 How
quickly did CS take effect?
Source: Police Research Group. A Review of Police Trials of
the CS Aerosol Incapacitant. November 1996 Although
the majority of trainers instruct officers to shout a warning before
discharging CS spray, a minority do not, citing as their reason, the
notice this would give to the subject enabling him to protect his
face from the spray's effects. However, since it is known that such
warning is often sufficient to enable the officer to take control
of a situation without having to discharge the spray, it follows that
in some of those cases where the subject was sprayed without a warning
having been given, the use of CS may not have been necessary. This
could have serious implications since it is open to a court to find
that the discharge of spray without a warning, where the warning alone
would have sufficed, constitutes an unreasonable use of force. For
example, in Cousins[27]
it was said that a threat of force may be held to be reasonable where
actual force would not be. A disturbing
feature of CS training is that some trainers expect their officers
to be exposed to the effects of the spray during training sessions.
Apparently, most officers agreed to being exposed to the spray. In
one force, a number of officers refused to be exposed to the spray's
effects and were required to submit their reasons for such refusal
to the Force Medical Officer.[28]
Furthermore, some officers undergoing CS training were required to
sign an indemnity form prior to being exposed to the effects of the
spray.[29]
Although there has been only a small number of reported significant
injuries resulting from CS training sessions where civil claims for
damages have been made, many other officers did experience the short-term
effects of the spray. What need is there to expose officers to the
effects of CS spray during training and what is to be gained from
so doing? Surely, trainers can explain these effects to their trainees
or show live footage of the spray's effects. No-one needs to be stabbed
to know the effects of a knife attack nor does anyone need to be shot
to know the lethal effects of a bullet. However, the comment that
"trainers, like most trainees, felt that the 'general exposure'[30] element of
the training course was worthwhile"[31]
seems to suggest otherwise. There is no doubt
that CS spray is an effective defensive tool which greatly enhances
officer safety. Particular care, therefore, needs to be taken to guard
against any adverse criticism which may be made about its operational
use. Of considerable public concern is the way it is used on people
who are mentally ill. A recent investigation carried out by London's
Maudsley Hospital has revealed that a third of NHS hospitals had treated
psychiatric patients brought in by the police after the spray was
used.[32] The Police Complaints
Authority received 254 complaints about the use of the spray in 1997.
CS should not be viewed or used as a first line of defence. Public
concern and criticism should not be overlooked or disregarded. appointments Appointments
should not be seen as a solution in themselves nor as a substitute
for an informed assessment of risks and their issue without such an
assessment should be discouraged. Consultation with users and management
is also necessary since, for example, many officers refuse to wear
their protective vests on the ground of discomfort. The initiative
adopted by Essex Police, whereby women officers are being provided
with specially-designed body armour, should be encouraged. ACPO has
recently complained to the British Standards Institute expressing
concerns that it has not been properly consulted over the establishing
of a new BSI committee which is looking to set safety standards for
police protective equipment. Furthermore,
a coherent policy for the use of protective equipment is necessary
and officers must be trained in their use and informed of any protective
limitations which might exist. There seems to be some confusion concerning
protective vests stored in police premises as to whether they afford
ballistic or edged-weapon protection, or both. This could prove potentially
fatal since an officer could adopt entirely inappropriate tactics
wrongly believing that the vests will provide a particular kind of
protection when they will not. A simple colour-coding system which
has been adopted by some forces may be all that is needed to distinguish
between the two. Some officers
believe that their forces have paid insufficient attention to their
equipment needs and of the demands such equipment will generate. Guidance
is needed as to whether the carrying or wearing of appointments is
a requirement or whether an individual officer is permitted to exercise
a degree of discretion. The position seems to be that whilst it is
the chief constable's responsibility, following a risk assessment,
to provide officer safety equipment, training and operational guidance
in its use, an individual officer should have the right to exercise
his own discretion to decide whether to wear such equipment following
a personal assessment of the risks. Indeed, in one of the forces inspected
by Her Majesty's Inspector in 1997, this position received approval
from the local Health and Safety Executive. An exception to this individual
officer discretion must exist where, in operations such as public
order events, the risk assessment is such that it demands that all
officers, notwithstanding any personal preference, should receive
equal protection. the
use of force[33] The use of force
by police officers must satisfy the reasonable force criterion laid
down by common law and statute.[34] Under section
3 (1) of the Criminal Law Act 1967: "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." In addition,
under section 117 of the Police and Criminal Evidence Act 1984 a police
officer is authorised to use reasonable force to exercise powers granted
under that Act. The effect of
a successful defence under common law or statute is the same: if the
court accepts that the force used was reasonable in the circumstances
it is deemed to be justifiable and, therefore, lawful, thus providing
the accused with a complete defence to the offence charged.[35] At common law
the degree of force which is lawful for self defence is the same as
under the 1967 Act.[36] There is some
overlap between the common law and statutory defences. It was held
in Cousins[37]
that both defences are available to an accused on the same facts.
However, there are circumstances where a person cannot rely on the
statutory defence: for example, where the perpetrator of the offence
he is trying to prevent is doli incapax[38]
or is insane or is acting in a state of automatism and for these reasons
is not considered capable in law of committing a crime. In these circumstances,
since no crime will have been committed, the person will be able to
rely only on the common law defence. In a number of
cases the courts have eloquently commented on the question of reasonableness.
For example, in Palmer[39]
Lord Morris said: "If
there has been an attack so that the defence is reasonably necessary,
it will be recognised that a person defending himself cannot weigh
to a nicety the exact measure of his necessary defensive action. If
a jury thought that in a moment of unexpected anguish a person attacked
had only done what he honestly and instinctively thought was necessary
that would be most potent evidence that only reasonable defensive
action had been taken." This case acknowledges
the fact that whilst a jury can take its time to consider the reasonableness
of the accused's response, the accused himself has no such luxury
and must act instantaneously and, therefore, exact proportionality
is not considered necessary. This was confirmed by the Court of Appeal
in Oatridge[40]
where it was held that one of the matters which needed to be determined
by the court was whether the accused's response was "commensurate
with the degree of danger created by the attack". The test of reasonableness
contains both subjective and objective elements. In Owino[41] the accused assaulted his wife and was
charged with an assault occasioning actual bodily harm, contrary to
section 47 of the Offences Against the Person Act 1861. His defence
was that he had used no more than reasonable force to defend himself.
The trial judge directed the jury to the effect that the prosecution
had to prove that the accused did not believe that he was using reasonable
force. He was convicted. His appeal against conviction was on the
basis that the trial judge had not stated that the test of what force
was reasonable was to be subjectively assessed. The Court of Appeal
dismissed the appeal. It was held that a person may only use such
force as is (objectively) reasonable in the circumstances as he (subjectively)
believes them to be and is not entitled to use the degree of force
which he believes to be reasonable. Thus the trial judge had been
more favourable to the accused than he needed to be. The decision
in Owino has clarified the
uncertainty which may have existed following the Court of Appeal's
ruling in Scarlett[42]
where it was held that the test was unequivocally subjective. Owino has made clear that although the
accused is entitled to be judged on the facts as he believed them
to be (the subjective element), it is the jury which decides how much
force is reasonable (the objective element). To adopt the words of
the Court of Appeal: "a person may use such force as is (objectively)
reasonable in the circumstances as he believes them to be." The accused must
hold an honest belief that force was necessary although such belief
need not be reasonable. Thus, where the accused's use of force follows
his mistaken belief that he was under attack, or about to be attacked,
he will be entitled to rely upon the defence as his conduct will be
measured against the facts as he honestly believed existed at the
time, whether or not such mistaken belief was reasonable.
[43] In Oatridge[44]
the accused believed that her partner was about to kill her since
he had a history of previously abusing her. The Court of Appeal held
that provided the accused had acted under an honest mistake of fact
a trial judge should direct a jury on whether her response was commensurate
with the attack which she believed she faced. In Williams
(Gladstone)[45] the accused
believed that he was witnessing a person being assaulted, whereas
in fact, the person was being lawfully arrested. The accused intervened
and in so doing attacked the man making the arrest. At his trial,
the accused said that he intended only to use lawful force to prevent
what he thought was a crime from being committed. The Court of Appeal
quashed his conviction holding that he was to be judged on the facts
as he honestly believed them to be whether or not that belief was
a reasonably held one.[46] However, if the
accused's mistaken belief arises out of his own voluntary intoxication,
he will not be permitted to rely on the mistake in his defence. The
following case illustrates this position. In O'Grady[47]
the accused had been drinking with the deceased and they returned
to his flat where they both fell asleep. The accused was awoken by
blows to his head and retaliated with what he considered to be a few
mild blows, after which he fell asleep again. When he later awoke,
he found the body of the deceased who had died as a result of his
blows. At his trial, he claimed that because he was drunk, he had
mistaken the amount of force he needed to protect himself from the
deceased's assault. The trial judge directed the jury that the accused
was entitled to rely on the defence of self defence, and that he was
to be judged on the facts as he believed them to be, but added that
he was not entitled to go beyond what was reasonable by way of self
defence and the fact that he might have mistakenly exceeded this position
because he was drunk, did not afford him a defence. His conviction
was upheld on appeal. Lord Lane CJ said that where the mistaken belief
as to the amount of force needed to defend himself arose because of
self-induced intoxication the defence arising from the mistake would
not be available. The consequences
of using excessive force are that the accused's defence will fail
and he will be guilty of the offence charged. If excessive force has
been used which results in the death of another person and the accused
faces a charge of murder, his conviction will not be reduced to manslaughter
and he will be guilty of murder, provided the court is satisfied that
he intended to kill or cause serious bodily harm from which the death
resulted.[48]
This was seen in the recent case of Clegg[49]
where the accused, a soldier on duty in Northern Ireland fired four
shots at a car (later known to be stolen) which failed to stop at
a checkpoint. The court accepted that the first three shots were fired
either in self defence or in defence of the accused's colleagues,
but the fourth, which killed a joyrider in the car, was not so fired
on the ground that the car had by then passed the checkpoint by some
50 feet. The House of Lords upheld the accused's conviction for murder.[50] It made no
difference that the force had been used in the prevention of crime
or arresting an offender or that the accused was a soldier or police
officer acting in the course of his duty. Even in circumstances
where the accused has a defence of self defence to a criminal charge,
he may still be held liable in the tort of negligence in respect of
the same act.[51]
Thus, where an occupier of premises comes across a burglar on his
land he cannot act with total disregard to the burglar's safety and
the maxim ex turpi causa non oritur actio[52]
cannot be invoked to provide the occupier with what would amount to
a complete defence to the burglar's claim for damages. However, even
though such a complete defence may not be available to the occupier,
the courts are likely to reduce the amount of the plaintiff's award
on the ground of contributory negligence.[53] The question
of reasonable force extends beyond the law. As noted above, officers
are not only accountable under criminal and civil law but, as the
Rodney King incident[54]
demonstrated in the United States, police accountability extends into
the community. Lord Scarman[55] has also made
similar comments: "At
the end of the day, standards of police conduct and the proper use
by the police of their powers means more to society than the theoretical
state of the law." conclusion Officers must
be properly trained and equipped for the job to enable them to fulfil
their duties effectively and efficiently. Safety must be paramount
for the officer, members of the public and, of course, the offender.
No less training or provision of equipment should be provided for
the Special Constabulary than for regular officers.[56] It is clear that
no single measure can be expected to have a significant impact on
the reduction of assaults on police officers. For the reasons advanced
above, the range of measures which are likely to make the greatest
impact are: · greater emphasis placed on tactical communication and conflict
management training ·
improved and better integration of defensive tactics training[57] ·
more regular refresher training ·
better selection and use of personal protective equipment ·
substantial increases in sentences for persons convicted of
assaulting police Note The
author is a lecturer in law at Liverpool John Moores University and
Chairman and Director of Training of the British Self Defence Governing
Body, the pre-eminent body for the teaching of self defence and personal
safety in the UK. The BSDGB operates a number of training programmes
and provides a range of qualifications, including two in police self
defence and control & restraint methods which are accredited nationally
by the Open College Network. The author is also consulted by and provides
expert evidence for the Home Office and Police Federation in police
and prison service defensive methods. [1] Report by Her Majesty's Inspectorate
of Constabulary, Officer Safety:
Minimising the Risk of Violence, 1997. For the purposes of this
article, officer includes uniformed officers, CID
and plain clothes officers, members of the Special Constabulary
and civilian support staff working in an operational capacity (such
as, traffic wardens, front office staff, detention officers, etc.) [2] Ibid [3] M. Boylen and R.E. Little (1990) Fatal Assaults on United States Law Enforcement
Officers, The Police Journal, vol. LX111, January-March, p 208 [4] visitors to police premises and civilian
support staff were formally covered under the 1974 Act [5] section 1 of the 1997 Act inserts into
the 1974 Act, a new section, s 51A, which provides that "a
person who, otherwise than under a contract of employment, holds
the office of constable … shall be treated as an employee …" [6] the recording of incidents for the purpose
of developing a preventive strategy is likely to be more comprehensive
than any data which might be collected for other management purposes [7] Report by Her Majesty's Inspectorate of Constabulary, Officer Safety: Minimising the Risk of Violence, 1997 [8] Ibid [9] it seems that some forces officially
do not allow this practice despite many officers (correctly) asserting
that "their officer safety training emphasised officers in
pairs resolving conflict situations": Report by Her Majesty's
Inspectorate of Constabulary, Officer
Safety: Minimising the Risk of Violence, 1997 [10] Report by Her Majesty's Inspectorate
of Constabulary, Officer Safety:
Minimising the Risk of Violence, 1997 [11] taken from the British Self Defence Governing
Body's module Handling Violence
and Aggression at Work, a training programme delivered in conjunction
with West Cheshire College and accredited by the National Open College
Network [12] Report by Her Majesty's Inspectorate of Constabulary, Officer Safety: Minimising the Risk of Violence, 1997 (emphasis added) [13] see, further, C. Wilson (1993) Police-Citizen Interactions, National Police
Research Unit, Australia [14] C. Wilson et al, (1994) Managing the Risk
of Patrol, National Police Research Unit, Australia [15] Report by Her Majesty's Inspectorate
of Constabulary, Officer Safety:
Minimising the Risk of Violence, 1997 [16] see, for example, research carried out
by Northamptonshire Police which indicates that 95.4% of their arrests
involved no use of force [17] M. Moxey and I. McKenzie (1993) Assaults on Police, Policing, vol. 9, pp
172-186 [18] 25% of assaults were sustained by 12%
of assaulted officers. Concentration of victims of violence can
also be seen outside of the police service. The 1998 British Crime
Survey shows that 31.1% of victims of violence suffered more than
one incident during 1997. 15.2% were victims of two incidents and
15.9% of three or more incidents. The 15.9% of victims who were
victims of three or more incidents of violence experienced 42.6%
of all violent incidents reported to the survey [19] S. Phillips and R. Cochrane (1991) Assaults against the police: A study in three
phases, Birmingham University, unpublished [20] literally, "techniques of arrest".
Its techniques are derived mostly from judo and aikido [21] in those cases where the author has been
instructed as an expert witness to advise on injuries sustained
by officers tripping on mats during training, the cause of these
injuries can be attributed, not to the fact that mats were used,
but to their condition or the way they were set out on the floor.
The author has also seen many cases where the use of mats would
have either prevented or reduced the impact of an injury caused
during a take-down or fall [22] Report by Her Majesty's Inspectorate
of Constabulary, Officer Safety:
Minimising the Risk of Violence, 1997. The author has noted
on numerous occasions when interviewing officers injured during
training that they have been unable to demonstrate, for identification
purposes, the technique which was being practised at the time they
sustained their injury. If they were unable to demonstrate it for
the purpose of reconstruction, they would certainly not have been
able to defend themselves with it [23] an appointment is the term used to describe
the protective equipment carried or worn by officers [24] it has been suggested by Brown (1994)
Assaults on Police Officers, Police Research
Group, August, that refresher courses take place every five years.
This is far too infrequent. To have any real value, refresher courses
should take place no less than annually, and preferably every six
months [25] Report by Her Majesty's Inspectorate
of Constabulary, Officer Safety:
Minimising the Risk of Violence, 1997 [26] although problems associated with its
use in confined spaces are noted [27] [1982] QB 526 [28] Kock and Rix (1996) A Review of Police Trials of the CS Aerosol
Incapacitant, Police Research Group, November [29] Ibid [30] this is where officers are exposed to
CS via a general exposure canister rather than being sprayed directly
in the face which was the original intention. The direct spraying
of volunteer officers during training was withdrawn following an
incident during a training session for trainers where a Metropolitan
Police officer sustained a more serious reaction to the spray than
was expected and which required hospital treatment [31] Kock and Rix, op. cit. [32] The Maudsley's chief nursing advisor,
Ben Thomas said: "Our fear is that more and more police officers
accept the use of CS spray as a first line of defence. We have got
to stop this tide". Marjorie Wallace, chief executive of the
mental health charity, Sane, has described such practice as "a
scandal". One mental health practitioner has stated: "I
thought CS was to help police prevent crime, not hit people with
mental health problems. In the past, police would have spent more
time talking to patients. The spray seems like a short-cut, a quick
and easy answer. These are patients that nurses deal with daily
- we don't have to resort to this": Independent on Sunday,
2 August 1998 [33] for an excellent discussion on the police
use of lethal force see Phil Palmer (1998) The Police Journal, vol.
LXXI, No.1, January, pp 35-46 [34] generally, private defence (self defence
or the defence of another) is regulated by the common law whilst
public defence (for example, to prevent crime or effect a lawful
arrest) is regulated by statute [35] an interesting point of construction
arises in connection with the statutory defence where it can be
seen that the sections refer specifically to the use of force. What
is not clear is whether anything less than force may be used. It
is submitted that since the common law permits conduct which amounts
to less than force and since sections 3 (1) CLA 1967 and 117 PACE
1984 permit the use of reasonable force, anything less than force
ought to be permitted. However, this may not be the position following
the Divisional Court's ruling in Blake
[1993] Crim LR 586. A vicar was one of a group of demonstrators
protesting about the use of force by the allied coalition against
Iraq. He was charged with causing criminal damage after he used
a marker pen to write a Biblical quotation on a concrete pillar
next to the Houses of Parliament. He argued that he was carrying
out the instructions of God and therefore had a lawful excuse under
section 5 (2) (a) of the Criminal Damage Act 1971 and, further,
relying on section 5 (2) (b) of that Act, his actions were intended
to protect the property of another. His appeal against conviction
for causing criminal damage was dismissed. The Court also considered
whether his actions may have been justified by section 3 (1) of
the Criminal Law Act 1967 and held that his conduct was "insufficient
to amount to the use of force within the section". What would
have been the position had Blake used a hammer and chisel (i.e.
force) to cut the letters into the concrete instead of using a marker
pen? To the extent that this case suggests that actions which are
less serious than using force might not be excused when the use
of actual force might be, a further authority on this point would
be welcome [36] McInnes
(1971) 55 Cr App R 551; Clegg
[1995] 1 AC 482 [37] [1982] QB 526 [38] a child under the age of ten cannot incur
criminal responsibility: section 50 Children and Young Persons Act
1933 as amended by section 16 of the Children and Young Persons
Act 1963. Until 30 September 1998 a child over the age of 10 and
under the age of 14 was similarly below the age of criminal responsibility
unless the prosecution could prove that he knew that his actions
were "seriously wrong" rather than "mere naughtiness":
see IPH v Chief Constable
of South Wales [1987] Crim LR 42. However, section 34 of the
Crime and Disorder Act 1998 (effective from 30 September 1998) abolishes
the rebuttable presumption that a child over the age of 10 but under
14 is doli incapax and such children will, for
the purposes of the criminal law, be treated as other juveniles
when deciding whether or not it is appropriate to prosecute [39] [1971] AC 814 (Privy Council) [40] (1991) 94 Cr App R 367 [41] [1996] 2 Cr App R 128 [42] [1993] 4 All ER 629 [43] it is always open to a jury to disbelieve
an accused if it concludes that because of the unreasonableness
of his conduct his belief was not honestly held [44] (1991) 94 Cr App R 367 [45] [1987] 3 All ER 411 [46] this decision was approved by the Privy
Council in Beckford [1988]
AC 130 where the accused, an armed police officer, shot dead a man
whom he alleged was armed and had been shooting. The Privy Council
held that the accused had a defence on the facts which he mistakenly,
but honestly, thought existed [47] [1987] 3 WLR 321 [48] the same point was also considered by
the House of Lords in Attorney-General
for Northern Ireland's Reference (No.1 of 1975) [1977] AC 105
where Lord Diplock stated (at 148) "If a plea of self-defence
is put forward in answer to a charge of murder and fails because
excessive force was used though some force was justifiable, as the
law now stands the accused cannot be convicted of manslaughter" [49] [1995] 1 AC 482 [50] in February 1998 the Northern Ireland
Appeal Court quashed Clegg's conviction and ordered a retrial which
is currently taking place in Belfast [51] Revill
v Newbery [1996] 2 WLR 239 [52] no action will arise from a bad cause [53] for example, in Revill v Newbery the damages awarded to the plaintiff were reduced
by two-thirds on this basis [54] motorist Rodney King was allegedly beaten
by four Los Angeles police officers armed with side-handled batons.
The officers' subsequent acquittal led to the worst riots in United
States history with 1,900 persons injured, 44 killed, 5,200 arrested,
almost 3,800 buildings destroyed by fire and costs estimated to
be in excess of $1 billion [55] speaking extra-judicially in 1983 [56] the Special Constabulary has recently
benefited from separate funding arrangements made available by Home
Office grants [57] the expression "defensive tactics
training" here includes all forms of officer safety training,
including tactical communication, conflict management,
self defence, control & restraint, baton, cuff and CS
spray |
