Evidential disputes in trespass to person permission hearings

Thomas Ward v The Chief Constable of Greater Manchester Police [2024] EWHC 1297 (KB) Case update

Executive summary

Thomas Ward was bitten by a police dog, Jerry (“PD Jerry”) while being arrested for offences for which he was later convicted. The High Court granted Mr Ward permission to bring a claim for trespass to the person pursuant to section 329 of the Criminal Justice Act 2003 for the injuries he suffered. He had a real prospect of proving that the use of force by the police, through their handling of the dog, had been grossly disproportionate. There was factual evidence in dispute and — as with a summary judgment application — the court should not undertake a mini trial.

Background

In October 2015, Mr Ward was pursued by officers in a police vehicle and then on foot. He had been driving when police officers tried to make him pull over as he was suspected of committing nine burglaries. He drove away, leading to a dangerous chase, and reached a travellers' site where his sister lived. He exited the vehicle and ran into the site. The officers that pursued Mr Ward on foot included a police dog handler and PD Jerry.

Mr Ward’s account was that as he ran away from officers he heard a shout of “Stop, police” but there was no reference to a dog. He did not stop, was tackled to the floor by an officer, handcuffed, and then felt pain in his leg. He looked down and saw that PD Jerry had bitten him and was continuing to bite him, shaking his head from side-to-side.

The police dog handler’s account was that, as Mr Ward ran, he shouted words to the effect of, “police with a dog, stop or I will send the dog”. Mr Ward did not stop so the officer gave PD Jerry the command to “hold him”. The officer and PD Jerry pursued Mr Ward and PD Jerry reached Mr Ward first. As the officer arrived, PD Jerry had hold of Mr Ward’s leg as the suspect tried to pull himself under a car.

The officer then described “a tug of war” between PD Jerry and Mr Ward as the suspect tried to get further under the car. The officer handcuffed Mr Ward and gave the command “Jerry out” at which point PD Jerry stopped biting Mr Ward. The whole foot chase latest approximately 63 seconds.

Mr Ward suffered a significant wound to his right lower leg and was taken straight to hospital. Mr Ward subsequently pleaded guilty to dangerous driving. He was also convicted of the nine burglaries and received a custodial sentence.

Law

Section 329(1) of the Criminal Justice Act 2003 requires a claimant to obtain permission of the court if they want to bring a civil claim amounting to trespass against the person, and the claimant was convicted of an imprisonable offence committed on the same occasion as that on which the act is alleged to have been done.

The court may give permission if either:

1. The defendant did not believe the claimant was committing, had committed or was about to commit an offence, and that they did not believe the act was necessary for the purpose of self-defence, recovering property, prevention or commission of an offence or to apprehend or secure a conviction; or,
2. The defendant’s act was grossly disproportionate.

The standard applied by the court in assessing the evidence is similar to a summary judgment application – does the claim have a real prospect of success, and, is there a real prospect of the court concluding the conditions for permission are met. As with a summary judgment application, the application should not turn into a mini trial.

Decision

Having considered the parties’ submissions and read the accounts from the police dog handler and Mr Ward, Master Sullivan was unable – at this stage – to say there was no real prosect of Mr Ward’s account, (that he was detained and then bitten), being found to be proven. Equally, the police dog handler’s evidence might be rejected at trial. Matters like Mr Ward’s state of mind, previous convictions, whether the police dog handler gave a warning, and the relative position of the individuals concerned are all relevant matters that can only be determined by a judge at trial.

Comment

The decision shows that, where there is any doubt in the factual evidence between the parties, the court will not exercise its discretion under section 329 of the Act and consider the matters need to be resolved at trial.

This should not stop defendant forces from raising section 329 of the Act as an issue should it be engaged as the claimant is still required to obtain the court’s permission to bring their claim for trespass against the person.