The crux of the objection was that I considered the actions of West Yorkshire Police to be akin to an organised crime gang engaged in a kidnap. It’s a strong allegation, which demands some justification, so here goes. Kidnap is a common law offence, made up of four distinct elements. The taking of one person by another… with force….without their consent… and without lawful excuse. The screams of the girl attest to the fulfilment of the first three elements, but what of the fourth? Did the police have a lawful excuse to behave as they did?
Here’s the technical bit: Section 4 and 5 of the Public Order Act 1986 cannot be committed where the suspect (in this case, the girl), and the victim (the officer) are both in the same private dwelling. The clue is in the name. It is the Public Order Act, designed to address alarm, harassment and distress carried out in a public place. For the arrest to have been lawful, the police would need to demonstrate a mistake as to fact. In other words, that they genuinely mistook the hallway and cupboard beneath the stairs in which the girl was hiding for, say, the town hall steps or other public place. Ignorance as to law is not a valid defence. Ever. What the police did was the equivalent of pulling over a car on the verge of breaking the speed limit and arresting the driver for burglary.
Just because I’m a legal pedant, here’s the wording used in POA 1986, in both parts 4 and 5:
(Personally, I think that blonde copper was just angry that her haircut was being mocked.)
Having watched the video in question, unless I missed something, it does not cover the instant in time at which the girl uttered the words that form the basis of this infamous and tyrannical charge. And so, just because I’m also a legal pedant, it appears that it may be possible that she uttered the words at issue when both she and the complaining officer were not within a dwelling, thus placing her conduct within the domain where a charge under section 4 or 5 of the Public Order Act may be possible.
But what a sad and sorry excuse for a police officer this is, who would actually bring such a charge. I understand that she is a Special Constable, IOW, an unpaid volunteer, but that makes no difference – you want to play at being a police officer, you should be tough enough to deal with what every other police officer has to deal with. If your amour-propre is so wounded by the words of a drunk teenager, I suggest that you do not have the level of self-control and disinterested allegiance to the rule of law that you should have. When I was playing in this a sandbox, it was emphasized, again and again, that it was absolutely-fatal to allow myself to be affected in any way by anything that Joe Q. Public might chose to say to me, and that to be offended or upset by taunts or insults was a very dangerous trap to fall into – you give up some part of the control of the situation, for no good reason, and you show the mope that he can manipulate your feelings. Both bad things for a police officer.
I’ve been to Leeds. Trust me, there are 1,926 more-serious criminal matters per night in that town than a drunk girl saying something vaguely-inappropriate to a police officer, and I’d suggest that a police officer who seriously believes that this was a suitable matter for an arrest and charge, has lost any sense of proportion and should seek other ways to fill her spare time.
llater,
llams
The US courts disagree, but only when it is government agents and employees acting from ignorance. It’s perfectly okay for US cops to get it wrong and violate the law so long as they mean right for what it’s worth. Maybe your Solons in muumuus decided to take a page from our law books.
Mere citizens are still hammered with the whole “ignorance is no excuse” thing, of course, that’s how it goes when the government investigates itself and finds it does nothing wrong.
llamas:
I missed that part. I’ve mostly gotten along well with cops – professionals – but the idea of someone who wants to do that work for free sort of scares me. I would think it would take a different personality type.
So if you can’t sue the cop individually, you just sue his employer, the City, for the wrongful acts of its employee.
Plaintiff lawyers dislike QI because they can’t whipsaw the cop with fear of personal financial disaster. If you can sue the cop AND the City, you can then let the cop off without taking his house, cars, and savings so long as he doesn’t hurt your case against the City, and maybe even helps it. You still get the same money damages – you just lose the ability to scare cops out of doing their jobs.
Nothing is as simple as advocates make it seem.
And the city/state don’t care because either their insurance carrier pays out or they just raise taxes or keep on with with unpayable debt.
And no one is ever actually accountable.
Pretty neat system they have going.
The assistant chief constable released a statement saying that it wasn’t as clear-cut as might have appeared from the footage of the terrified child being manhandled by numerous unsympathetic officers and everyone should not rush to judgement before the body-cam footage had been reviewed.
Then……………crickets. No further action and lessons will be learned.
That footage of the interaction between the blond officer and the drunk child must have been really damning, and not to the child.
Along with the allegedly illegal and unconstitutional police raid on the Kansas newspaper office along with the editors home it’s been a rather bad week for the forces of law and order on both sides of the pond.
There is another section of the Public Order Act 1986 that is applicable, relating to sexual orientation, section 29B, but which has the same test of location:
@bobby b
Plaintiff lawyers dislike QI because they can’t whipsaw the cop with fear of personal financial disaster.
Whenever I hear someone discuss PLs it gives me a bit of a queasy feeling in my stomach. The thing about QI is in one sense it is necessary, otherwise you’d have every criminal defendant suing everyone in the police department for every petty thing they thought the cops did wrong. As we engineers like to say, the SNR would be very, very low.
It seems to me that the solution to this and a broader problem of motions to suppress (which is to say getting people off on a technicality) is that the courts should be empowered to sanction police officers who violated the rules and the civil rights citizens. What that would look like I don’t exactly know, but perhaps if, for example, a judge thinks evidence was obtained illegally, instead of suppressing it, he could refer to the rule violation to an independent board where the officer would have to answer for his misbehavior (much as a lawyer might have to answer to the bar association — something that has actual teeth. And if the charges were serious enough the judge could refer the officer for criminal charges too. More mildly, if a cop performed an illegal search which revealed evidence of a crime, then the evidence can be used, but the cop loses a month of pay — just as a rough for example. Then it is the cop, who broke the rules, not the people, whose prosecutorial ability is handicapped, that are punished.
As to PLs, they are in some ways a good idea — it is almost like a free market in the law. But the law is inherently not a “free” thing, it involves deep coercive force. And the cases I find offensive are not your classic “McDonalds pays a woman a million dollars for spilling coffee”, rather it is the far more pervasive and pernicious “lawyer class action sues big company: lawyer makes millions, those who are harmed make a fifty bucks.” The classic case of this is the Erin Brockovich suit against Pacific Gas and Electric, in which our heroine, in the movie itself, tells us that the law firm took 40% of the settlement PLUS expenses. So while the lawyers screech off in their lambos, the victims manage to pay off a quarter of their med bills and die prematurely in pain. Or less dramatically, I remember a suit recently where “Airborne” a tablet that dissolves giving a fizzy Vitamin C drink, made the mistake of claiming it boosted your immune system. The lawyers got maybe fourteen million, the apparently injured parties could get the cost of up to three purchases back as long as they had the receipt. Which was, I believe $3. These types I hear about almost every day.
Fraser Orr:
First, general outlook ideas (that are, I’m sure, borne of my experiences trying to get people out of the State’s grasp):
One does not escape conviction “on a technicality.” Per our Constitution, it is the State’s burden to prove BARD that a defendant has broken a law, and it can only do so when it proves each and every element of a criminal law has been met, using evidence that has been collected without violating our Constitution. Technically. When I get evidence tossed, I have not run some crafty and clever technicality – I have shown that the State cannot meet its very technical burden that it must meet before it can deprive someone of their liberty or property.
Sounds shady, but I guarantee that, if/when the State comes after you, the differences become real.
Placing the bad consequences of bad evidence on to the cop’s head – instead of to the benefit of the person whom the State cannot now properly convict – ignores our Constitutional protections against the State. What a sorry state we’d be in if the State could cheat on evidence, and then have the cop say “sorry, my bad!”, and still convict someone of a crime. Think of the possibilities of tacit agreement between cop and prosecutor – both being arms of the State – which might result in the appearance of punishment of a cop without the reality, while convicting us – me, you – of whatever crimes could be attributed to us through the use of bad, fake, or improperly-gathered evidence.
Next, keep in mind the vast differences between criminal law and civil law. QI only applies to civil-law matters. Cops are not immune to charges of criminal violations. Perjury, falsification, kidnapping without legal cause – all offenses that a cop can face even with QI.
When we speak of QI, we’re only talking about civil lawsuits against the State and the cop, for money damages. You cannot sue a cop for damages if the cop has QI for his actions. But you can still charge and prosecute that cop for illegal – criminal – acts. QI gives no shelter for that sort of thing. And you can still civilly sue the State for the wrongful acts of its employee cop.
Currently, QI needs to be fixed. There are a couple of “bad” USSC opinions out there that were issued based on specific circumstances, but are now routinely applied in ways that don’t work. (E.g., that a cop really doesn’t know he’s doing bad stuff unless there’s a specific USSC case that specifically holds his act to be bad.) The pendulum swung too far that way, and needs to swing back. But I would never consider being a cop without some version of QI existing. Too many daily interactions with people that could lead to many personal lawsuits, and the occasional loss to such lawsuits that could wipe me and my family out. Not worth it without that protection.
bobby b. wrote:
‘I’ve mostly gotten along well with cops – professionals – but the idea of someone who wants to do that work for free sort of scares me. I would think it would take a different personality type.’
Embrace the devastating power of ‘and’. Both paid and unpaid coppers (in my observation) generally exhibit ‘a different personality type’ than the average citizen, although I’ll allow that they may be different different types – if you see what I mean.
While you may well choose to be cautious of people who want to do that work for free, I’m more and more of the opinion that it would be well to be just-as-cautious of those who want to do that work for wages. My experiences in US policing have left me with a ever-decreasing opinion of the quality, recruitment, training, motivations and general mindset of many people who have taken up police work – it’s one of the (main) reasons that I stopped doing that quite some time ago, and I now restrict my contacts in that sphere to a small coterie of friends and ex-colleagues, many already retired and not a one under 50 years old. My default now is to mistrust the police, individually and en masse, unless and until they earn my confidence, and otherwise to avoid them wherever possible.
I wish that late and much-missed contributor Sunfish were around to comment.
llater,
llamas
bobby b – Special Constables started off when the law was about protecting people from theft and assault, long before “the law” became what it is today. Special Constables, like the unpaid magistrates, were some of the best people in the community. They made real sacrifices to protect other people.
Police forces were not compulsory in England and Wales till 1856, and there were no “Public Prosecutions” for offences against private persons till the 1870s (some private person had to make the the charge “I accuse you – the blood of this innocent victim cries out for justice, do your worst – for I defy you”). Traditionally if someone was attacked and was screaming for help it would be a private person who came to their aid – and if you came upon a dead body, you (you personally) would be expected to report this to the (unpaid) magistrate – and personally help hunt down the murderer or murderers (regardless of the risk to yourself) and bring them to trial by jury – this was a free society, and the people were “scary” in a way, at least to modern people.
As for the terrible police behaviour in tis case – I am not sure that Harry Miller has got everything right, specifically the idea that the police thinking that a small private house was a “public place”.
Surely that would just show that the police officers were delusional – NOT that the arrest was lawful?
The last demand for Trial by Combat was in the early 19th Century (yes the 1800s) – the fight did not actually happen, but the man accused of murder (who responded by demanding trial by combat) did turn up in full armour and armed, his accuser did not turn up (and thus was held to be the loser). One of things that really angered the accused was that he had already been found innocent by a jury – but the accuser had found a legal loophole to get round Double Jeopardy, so the accused found a legal loophole of his own to demand Trial by Combat (which had been very unusual in England since the early 1200s). Both legal loopholes were then closed.
Sir Walter Scott (in “Ivanhoe”) reminds us that sometimes the stronger and more experienced warrior would LOSE – due to feelings of guilt, and the widespread belief in God. Their belief, (their own belief undermining them) being that God was with their opponent.
In the case of the book “Ivanhoe” – it is the man who dies (of a stroke – brought on by emotion in the fight) who suggests to the Jewess under trial for witchcraft that she call for a champion to defend her life, he does this by way of a note as his mind is so troubled he has lost the power to speak.
In World War II members of the Wittelsbach family (the old ruling family of Bavaria) went to Dachau for protesting against the Holocaust – as sworn knights it was their duty to oppose this, as part of the old oath is to “defend the weak” even if it means one’s own death.
No matter how despised someone is – it shameful (unacceptable) for any man of honour to see them undefended if they are innocent, regardless of the consequences to the person who steps forward to defend them.
The start of the film “The Eagle has Landed” (Michael Caine) captures the attitude well.
It is the ancient law – not written on parchment, for it is older than writing.