In Gilchrist v Chief Constable of Greater Manchester Police [2019] EWHC 1233, the High Court considered officers’ use of force in the context of use of CS gas and a taser repeatedly upon a man who was autistic and mentally distressed and found that its continued use became unlawful. Whereas the initial use of CS gas and Taser were justified, once the police learned of the male’s vulnerability as an autistic man and noted that his behaviour was defensive rather than aggressive, a more cautious approach should have been adopted.
On 6th June 2014 at 05:56, an emergency call reported a man, naked from the waist up and covered in blood, shouting in the street. At 05:59 an ambulance was called; it was estimated it would take 7 minutes to arrive. At 06:01, two police officers arrived in a van. One of those officers (“A”) sprayed the claimant with CS gas. At 06:02, another officer (“B”) arrived and used his taser on the claimant: a single taser discharge with two cycles of 4 and 2 seconds. This was ineffective and “A” used his gas again. At 06:03 yet another officer (“C”) arrived and used his taser on the claimant: two discharges with cycles of 7, 5 and 2 seconds and 29, 5, 6 13 and 8 seconds; the final cycle being applied when the claimant had been taken to the ground.
The claimant’s case was that the police’s use of force was unnecessary; the defendant’s that the claimant was suffering from an episode of mental illness which caused him to behave aggressively, that it was necessary for the police to control him, and that the methods employed were reasonable and proportionate.
The judgment
The judge heard evidence from family members, one of whom accepted it was “fair enough” to describe the complainant as aggressive when the police officers arrived; another said the complainant had blood on his hands. His fist was clenched and he appeared to be holding something. There was evidence the claimant had banged his fists on the police van. Neither of the initially attending officers regarded the complainant as a threat to them; each suspected given his demeanour and bloodied appearance that he had committed an offence. Officer “A” took the view that the claimant needed to be stopped so as to find out what had happened. He spoke to the claimant who approached him; the officer felt vulnerable and used his CS spray from a distance of 15 feet away. It was “A”’s first career use of CS. The judge found this was justifiable and reasonable use of force. As a matter of fact, the CS was ineffective.
Officer “B” arrived at 06:02. He found the claimant to be moving to and away from the initially attending officers while making grunting noises. He seemed odd and unpredictable, “working himself up to something”. The officer characterized the complainant’s behaviour as aggressive but could not attribute the behaviour to intoxication, mental distress or a response to having committed a crime. The officer did not know that CS gas had been used. He was concerned for his fellow officers and also took the view that the complainant needed to be detained. The claimant had something in his right hand, and when he turned to officer “B” from a distance of 4 to 5 feet the officer regarded this as an escalation and used his taser, cycling it twice but curtailing each of the two 5 second cycles. He had never used a taser before. The taser was ineffective, and the officer noted that the second probe had not remained attached to the claimant’s body. The judge held his was a justifiable and reasonable use of the taser to attempt to control the claimant and prevent him causing harm to himself or anyone else.
“A” had gassed the claimant again. He said that he had been aware of the risk of flammability where tasers were deployed but knew the taser had not properly connected with the claimant and saw that it had been ineffective. He did not attempt physical contact at that stage having seen the claimant had something in his hand. Having seen the CS fail twice, “B” decided not to deploy his taser again because of the flammability risks and its previous failure to subdue the claimant. The judge found that this was a very challenging situation and that “A”’s decision had to be made very quickly. It was reasonable and justifiable in those circumstances to use CS again.
The attending officers had recorded on the force wide incident number system at 06:02 that there was the possibility that the claimant had harmed his wrists; and at 06:03 that he had been tasered twice. Within a minute or so they knew the claimant’s name from family members on the scene and they knew he had mental health difficulties.
Officer “C” arrived at about 06:03. He had used a taser on many previous occasions. “B” told him immediately that the claimant had been sprayed with CS. “C” knew that the claimant had been sprayed and tasered; he said he thought that the claimant had “swung at” the officers. He was 2 metres away and thought the taser could be effective in preventing harm coming to the other officers. He discharged the device and the probe connected but there was no sign it was effective – the claimant was upright, his eyes were bulging and he was frothing at the mouth. He reloaded the taser and discharged again, keeping the taser cycling, then used the device in angled drive mode into the claimant’s upper back for a 13 second cycle. “C” said the claimant tried to swing at him while he applied the taser directly to the claimant’s back. Another officer arrived and took the claimant to the ground and while he was prone “C” used his taser again.
The judge held that “C”’s decision that the claimant was violent and needed to be detained was honestly made and reasonable. She went on to find, however, that there were a number of reasons which militated against the multiple and prolonged cycling of the device as being reasonable or justified: namely, first, that the claimant was known then to be a vulnerable person; second, his behaviour with the police since their attendance had not given cause to think an attack would be imminent; third, the claimant was moving slowly and there was time to step back; fourth, “C” knew that CS had been recently used; fifth, he also knew that taser had previously been ineffective; sixth, the final use of the taser while the claimant was on the ground was unjustified and served only to inflict unnecessary pain. It is noteworthy that whereas in the case of McCarthy v Chief Constable of Merseyside Police [2016] EWCA Civ 1257, the individual on whom the Taser was used was aggressive, in the instant case the court found that the behaviour of the claimant was defensive.
Commentary
The claim was in trespass to the person and in negligence. Familiarly, s.3 of the Criminal Law Act 1967 provides that “a person may use such force as it reasonable in the circumstances in the prevention of crime, or in effecting or assisting the lawful arrest of offenders or suspected offenders” and s.117 of Police and Criminal Evidence Act 1984 that an officer may use reasonable force in exercising powers under the Act. An officer using force is under a duty to avoid causing reasonably foreseeable personal injury: Robinson v Chief Constable of West Yorkshire [2018] UKSC 4; [2018] AC 736. There may of course be circumstances which justify the taking of risks to the safety of the public. The Courts have emphasized that the duty on an officer is a duty to take such care as is reasonable in all the circumstances (per Lord Hughes in Robinson at para 76): unrealistically demanding standards should not be applied to officers required to take immediate critical decisions in stressful circumstances.
The Operational Use of Taser Policy Document (set out in the judgment at para 52) sets out the purpose of use “to temporarily incapacitate an individual in order to control and neutralise the threat they pose. It is not to be used to inflict severe pain or suffering on another in the performance or purported performance of official duties” (section 1.1) and the effects “The device relies on physiological effects other than pain alone to achieve its objective, although pain is the main factor when used in stun drive mode” (section 2.2). The advice notes that a taser may not be immediately effective and in such circumstances the policy document proposes “Whilst the 5 second cycle can be repeated if the incapacitation effect does not appear to take effect, officers should consider other options, as there may be technical or physiological reasons why the device is not working as expected on a particular individual.” Further, it goes on to caution that a taser should not be used where it has been previously employed without success, or where there is a risk of flammability – including where a person has been sprayed with CS gas.
The College of Policing has given specific guidance for taser-equipped officers dealing with vulnerable people, and notes “If information and intelligence reveals the presence of a factor which can influence behaviour and alter response, police should take this into account when considering their approach. Officers must be aware of how their presence and tactics might be interpreted by the subject. It is important, however, that the basic principles of tactics are complied with in order to reduce the potential threat by and/or to the subject as soon as practicable. The following actions can help create opportunities for the subject and officers to have more time and space to defuse the situation: be prepared to back off; use of effective cover; give space and time if possible; early negotiation; evacuate immediate area.”
The Guidance further states that on an officer’s using a taser, “the cycle can be repeated or extended if the desired incapacitation does not appear to take effect and the further use of force is justified and proportionate in the circumstances”. A discharge cycle is 5 seconds by default and can only be extended by the officer keeping pressure on the trigger; in contrast to “B”, who cut short each of the two cycles he delivered, “C” discharged his device for a total of 72 seconds over two cartridges, one cycle being just a second short of half a minute, and the final two cycles being a drive stun contact and a cycle when the claimant had been restrained. Officers are of course trained that their use of any force, including taser cycle, must be proportionate, lawful, accountable and necessary.
To return to the judgment, therefore, these cases are notoriously fact-specific; this case does not lay down any point of principle but it does provide some useful illustration of the way the courts approach these matters. Just as juries in criminal cases are routinely warned that a person who genuinely believes themselves to be under attack cannot be expected to weigh to a nicety force used in reply, the civil courts will not expect superhuman levels of phlegm or logical analysis from officers in supremely difficult situations.
Here, however, “C” arrived after the other officers. He knew more about the claimant than had his colleagues when they arrived: he knew both that the claimant had been subjected to CS and to taser and that he was autistic and vulnerable. The claimant had not harmed the other officers and “C” did not suggest he thought they had. It is understandable that the judge found “C”’s decision to use his taser was inappropriate in the circumstances.
In this case, “C” appears to have failed properly to consider the circumstances on his arrival, to have failed appropriately to consider whether his use of the taser was justified at all, and to have failed to consider whether his continued use of the device was serving a justified purpose. If a taser case is different from a baton case or a spray case, it is that the device itself by default delivers a measured dose of force. The more repeated the application of such a dose, the more difficult it will be for any officer to, in the apt words of Hallett LJ in McCarthy v Chief Constable of Merseyside Police [2016] EWCA Civ 1257, “justify the battery”.