Mr Kenyon was subject to an outstanding arrest warrant in respect of an offence of making false representations for obtaining benefit contrary to Section 112 of the Social Security Administration Act 1982.
On 9 May 2014 Mr Kenyon was stopped by police officers in his car in Letchworth town centre in connection with the arrest warrant. Mr Kenyon refused to acknowledge the police officers and attempted to make off, colliding with another vehicle. As a result, PC Stacey used his baton to smash the rear window, entered the vehicle and unlocked the driver’s door. PC Stacey then got out of the vehicle and he and PC Brightman opened the driver’s door. They asked Mr Kenyon to get out but he refused to do so.
PC Musto, who had witnessed some of these events then approached the vehicle, smashed the front passenger window and sprayed Mr Kenyon with PAVA spray. However, Mr Kenyon still refused to exit the vehicle. PC Stacey and PC Brightman pulled Mr Kenyon out by his arms. Mr Kenyon resisted. PC Musto jabbed Mr Kenyon in the chest with his baton before striking him twice on the right shin. Mr Kenyon, PC Stacey and PC Brightman subsequently fell to the ground with Mr Kenyon on top of PC Stacey. Whilst in this position PC Musto struck a third blow with his baton to Mr Kenyon’s right shin. Mr Kenyon suffered a fracture of the right proximal tibia.
Mr Kenyon was arrested and subsequently pleaded guilty to the Section 112 offence together with careless driving and obstructing a police officer in the execution of his duty.
Mr Kenyon pursued a claim against the Chief Constable for assault causing personal injury. The claim was defended on the basis that the police actions were justified, relying on Section 117 of the Police and Criminal Evidence Act 1984, Section 3 of the Criminal Law Act 1967 and Section 329 of the Criminal Justice Act 2003. Mr Kenyon advanced eight separate allegations of assault and succeeded in respect of one relating to PC Musto’s three baton strikes, which were determined to have been unlawful.
The Chief Constable was granted permission to appeal, limited to the law in respect of PC Musto’s honest belief, the absence of any intention to cause harm and the interpretation of ‘grossly disproportionate’ for the purposes of Section 329(5) of the Criminal Justice Act 2003.
Upon hearing the appeal, Mr Justice Baker concluded that there was no evidence in the original Judgment of HHJ Walden-Smith that she had considered whether or not PC Musto had intended to injure Mr Kenyon or that PC Musto had only struck Mr Kenyon because he honestly believed that it was necessary to do so for one or more of the statutory reasons set out in Section 329(5)(b). In the circumstances, Mr Justice Baker ordered that the case be remitted back to HHJ Walden-Smith for reconsideration and to allow her to make a fresh decision.
This appeal highlights that in order to advance a successful defence under Section 329, full and careful consideration of each element of the defence is necessary, in particular:-
- Whether the relevant officer held an honest belief on subjective assessment in relation to what was occurring and whether the force used was necessary for one the specific statutory reasons; and
- Whether on objective assessment of all of the circumstances, which should include consideration of the subject assessment of the officer, the force used was grossly disproportionate.In this instance such assessment should also have included whether or not the officer intended to injure.