Tuesday, 24 February 2009

What Happened Next to the "Tony Martin" Defence?

This post is about a surprising turn in English law - and how police officers now try to escape legal liability for needlessly violent arrests.

You may remember Tony Martin, the Norfolk farmer who in 1999 shot two burglars who were running way.

This case prompted an enduring public debate as to the scope of self-defence and, especially, as to the rights of criminals to sue their victims if the victims had defended themselves.

In particular, there was much media attention about stories where the criminal had successfully made a civil claim for an injury suffered at the hands of the victim of the crime.

In 2003, the UK government legislated for protection for all those who faced being sued by a criminal for "trespass to the person" when that had been done was (a) someone had defended either themselves or their property, or (b) someone had sought to apprehend or arrest the criminal.

In such circumstances, the criminal was only to be able to sue if the actions were grossly disproportionate.

The law duly came into effect in January 2004.

And then something unexpected happened.

This defence has not been used once, it seems, by any civilian facing a lawsuit from a criminal.

Instead, it has been routinely invoked by police officers facing claims arising from violence used to effect an arrest.

Last month, the Court of Appeal in Anthony Adorian v Commissioner of Police of the Metropolis had to consider a recent attempt by police officers to avoid being sued for violence used during an arrest.

As to the dreadful underlying facts of the case, I can do no better than repeat the summary of Sir Stephen Sedley (incidentally, by far the best and most progressive judge on the Court of Appeal):

"Shortly after midnight on 21 August 2004 the claimant was arrested in central London for disorderly behaviour.

"He was later charged with obstructing police officers in the execution of their duty, was convicted and was granted a 24-month conditional discharge.

"In the course of his arrest he suffered injuries so severe that the force medical examiner concluded that he was unfit to be detained.

"He was taken to hospital where he was found to have suffered multiple fractures of the head of the right femur and of the acetabulum, the ball and socket of the hip joint.

"This is a class of injury associated with head-on car crashes or falls from a significant height.

"But the claimant had been walking at the moment of arrest, and there is at present no evidence suggesting either that he has brittle bones or that anything happened following his arrest which is capable of explaining the injuries."

Note here that the "criminal" received only a mere conditional discharge, which signifies that although a crime had technically been committed, it was not serious enough to warrant any punishment.

(In my opinion, one could even suspect he was taken to court and prosecuted just so the police officers could afford themselves of the "defence" described above.)

Mr Adorian decided to sue the police officers who had carried out this very severe assault. And, of course, the police officers relied on the "Tony Martin defence".

Sedley again:

"In what one can call the Tony Martin situation – a sudden encounter with a crime - [the defence] gives the individual a defence of honest, even if unreasonable, belief in the need for his or her act; and it forfeits the defence only if the act was grossly disproportionate.

"There is nothing on the face of the section or in its shoulder-note which manifests an intention to afford the police a novel protection from claims by offenders for objectively unreasonable or unnecessarily violent arrests.

"The section nevertheless inexorably covers police officers as well as civilians. Indeed, so far as counsel have been able to tell us, since it was brought into force in January 2004 it is only police defendants who have invoked it.

"The consequences should not go unnoticed. In place of the principle painstakingly established in the course of two centuries and more, and fundamental to the civil rights enjoyed by the people of this country - that an arrest must be objectively justified and that no more force may be used in effecting it than is reasonably necessary - the section gives immunity from civil suits, not confined to those involving personal injury, to constables who make arrests on entirely unreasonable grounds, so long as they are not acting in bad faith, and accords them impunity for using all but grossly disproportionate force in so doing.

"Conscious of art. IX of the Bill of Rights 1689, we say only that there is no indication that Parliament was aware, much less intended, that what it was enacting would have this effect."

Sedley (sadly), did not have to deal with the merits of this particular case. The issue before the Court of Appeal was a narrow one as to whether Mr Adorian had needed the permission of the court to bring the case against the police. Thankfully, the Court has allowed Mr Adorian's case to proceed, rejecting the legal technicality relied on by the police in trying to strike his case out.

One hopes Sedley's robust and scathing skepticism as to the potential misuse of the "Tony Martin" defence by the police when being sued for their physical assaults when making "objectively unreasonable or unnecessarily violent arrests" is heard loudly and clearly in police force legal departments, and in all their canteens and offices.


Dan Dan The Bus Driver Man said...

wow and interesting turn of events. Even from across the world and in another country this seems wrong. Good on ya for publishing this.

Alex J. Thomas said...

Wow, fascinating stuff.

Owen said...

Blimey, this is an unexpectedly fascinating blog. To think I have work to do...

I have to take issue with your comment, "Note here that the "criminal" received only a mere conditional discharge, which signifies that although a crime had technically been committed, it was not serious enough to warrant any punishment", though.

Having extensively trawled the subordinate courts of the UK's utterly broken criminal justice system myself, I can honestly say that a 24-month conditional discharge tells us little about the offence. With a good enough sob-story as personal mitigation he could have got away with murder.

CDs are regularly used for theft, drugs offences, affray, abusive and threatening behavior and - where for example the police have helpfully stoved your head in - to reflect the fact that you've probably served enough penance.