PD Oscar is Innocent!

THE REAL OSCAR WINNER

Mr Walker (a retired solicitor's clerk) drank 10 pints of beer and half a bottle of wine. He was found in charge of a car which he had been driving. He ran away. PD Oscar gave pursuit. In the course of securing the arrest of Mr Harris he bit him. Mr Harris sued the Chief Constable for damages for personal injury. A PD is a police dog.

You might think that chasing criminals and assisting in their arrest is what PDs are for and how they earn their cookies and other treats. In fact, you might think that it is a PD's public and contractual duty to chase criminals and sometimes they may have to bite them. No arrests, no cookies and treats.

Of course, they must (as with all officers of the law) use no more than reasonable force to secure an arrest. This may not in a lot of circumstances involve biting. Most people when confronted by a PD will heed his handler's warning to stand still. In that event, a properly trained PD will simply circle you and bark at you a bit.

So did PD Oscar exceed the bounds of his authority? Well, that must depend on what Mr Walker did in order to resist arrest. With 10 pints and half a bottle of wine inside whilst trying to drive a car Mr Harris could hardly say that PD Oscar did not have good grounds to arrest him.

Now it must be emphasised that the following is an agreed factual account of what happened. Agreed, that is, by Mr Harris. When you read it you are going to wonder what possessed him to bring his case to the Court of Appeal or who (if anyone did) advised him that he should. There is a twist in the tail. See further below.

On the admitted facts Mr Harris did a lot more than run away:

"PC Harris ... saw that there were two white males in the car and he thought that they were aged about 50 or so. He tapped on the window but got no response. He tapped again more loudly. He got no response again, so he opened the door and asked the two inside if they were all right. PC Harris noticed that inside the car it smelt strongly of alcoholic liquor. PC Harris concluded that Mr Roberts had been drinking, as indeed he had. He asked Mr Roberts if he had been drinking and Mr Roberts replied "no". At that stage the car's engine was running. PC Harris asked Mr Roberts to turn off the engine. Mr Roberts would not do so, so PC Harris lent over and took out the ignition key.

PC Harris then asked Mr Roberts to get out of the car and join him at the rear of the vehicle; that is, between his car and the police van. Mr Roberts refused. PC Harris wanted to give Mr Roberts a breath test as he thought that Mr Roberts had been driving whilst over the legal limit. PC Harris told Mr Roberts he wished to give him a breath test.

Eventually Mr Roberts got out of the car and went to the rear of it. PC Harris said that he could smell alcoholic liquor on Mr Roberts' breath at that stage. PC Harris asked Mr Roberts to take a breath test and asked him to wait there whilst he fetched the test kit from the police van. As PC Harris reached into the van, he saw Mr Roberts running away past his car and along the fence towards the compound gates. PC Harris concluded that Mr Roberts did not wish to be breathalysed and was trying to escape. PC Harris shouted to Mr Roberts to stop. He did not. PC Harris shouted to him again to stop. He said that if Mr Roberts did not stop he would send the police dog. Mr Roberts did not stop. At that stage PD Oscar was taken out of his cage in the van.

PD Oscar did not have a collar on him nor did he have a leash. The judge found that at first PC Harris held the dog by the scruff of his neck. PC Harris called to Mr Roberts again to stop and said that he would otherwise let the dog on him. Mr Roberts did not stop but ran towards the compound gates. PC Harris then shouted "Stop him" to the dog, which is the dog's order to go and seize a man who is running away.
...
When the dog was let go, Mr Roberts was trying to climb the compound fence. It was accepted at the time that the dog was a well-trained police dog and that PC Harris was a well-trained police dog handler. The dog was trained to look for someone running and then to try and stop that person. The dog would try to grab the person's right arm to achieve this object. If the person stopped running, the dog would circle the person or stand back and bark.

PD Oscar ran towards Mr Roberts and barked at him. Mr Roberts failed to climb over the fence and dropped to the ground. At that point the dog did not bite Mr Roberts. PC Harris, who had a torch, was trying to get in radio contact with other police officers to assist him and he was also trying to catch up with Mr Roberts. As he did this, Mr Roberts was saying to the dog "Get off, stupid dog" or words to that effect. He was also raising his arms so that the dog could not get them and he was batting and pushing the dog off.

PC Harris saw PD Oscar bite Mr Roberts' right arm as Mr Roberts was running along the fence, which was on Mr Roberts' left side. This slowed Mr Roberts down and he tried to kick the dog, who held on to Mr Roberts' arm. At this point PC Harris caught up with Mr Roberts and the dog but PC Harris was then hit across the throat by one of Mr Roberts' arms. PC Harris continued to tell Mr Roberts to stand still but he got no response. He asked Mr Roberts to stop and give himself up, but Mr Roberts ran towards his car, saying at some stage "Get lost."

At this point PC Harris had hold of PD Oscar. PC Harris warned Mr Roberts again that if he continued to move he would send in the dog. PC Harris did not want Mr Roberts to get back to his car as he did not know what might happen then. PC Harris warned Mr Roberts again but he took no notice.

PC Harris released PD Oscar to stop Mr Roberts and then PC Harris ran with the dog towards Mr Roberts. PC Harris grabbed some of Mr Roberts' clothes whilst Mr Roberts was kicking and moving his arms. PC Harris heard the dog yelp. PC Harris was hit on the right side of his face by Mr Roberts at some stage whilst PC Harris was trying to restrain Mr Roberts and get him onto the ground. There was a struggle between the two men and they fell to the ground together. At this stage PD Oscar was biting Mr Roberts, but PC Harris did not know where. A police dog is trained to bite a person who is fighting a police officer and who is not complying with an order from the police officer and who is on the ground. Moreover if the dog is punched or kicked the dog is trained to fight back.

PC Harris then called off the dog."

OK: If you read that, which Mr Harris agreed for the purpose of his appeal was accurate, you, if you are like me, do not understand what chance of success Mr Harris had in the Court of Appeal.

This is the core of the appeal:

Mr Roberts was a 57- or a 58-year-old man who had drunk considerable amounts of alcohol, as PC Harris believed he had. Mr Roberts could not therefore be guaranteed to react sensibly if the dog was released on him. His reaction was unpredictable. Moreover PC Harris knew that there was a range of reactions that a person who was drunk might have to a dog released to stop him.

Thus, even though being old and drunk would not be a defence to the offences Mr Harris committed those facts did entitle him to damages for the manner of his arrest.

Wow! The legal profession hits a new low?

Oh, PD Oscar seems to be an excellent cop, now sadly dead. Here is what his handler said about him:

PC Harris said that Oscar's death had come as a bitter blow: "He was very special and excelled as a police dog, a pet and a very good mate."

Be ashamed Mr Walker. Be very ashamed.

Terrorist Mark Haddock Hides His Face

Mark Haddock (an alleged murderer but only in prison for GBH* with intent) has won the right to hide his face, at least for the time being.

No-one can publish his picture; that is, a picture of his new face. Obviously, we can still publish his old face:
Well, let us hope that this attempt to hide from his former friends in a terrorist organisation works better than the last one:

This is not a man deserving of the sympathy of the court or of its protection. However, the protection is limited - see the title link.

If you want to know who Mark Haddock is you might start with his wiki entry.

Haddock was an insider in the UVF* and latterly a Special Branch Informer. It has been said:

There would have been more people in the cemeteries of Northern Ireland if we hadn't run people like Mark Haddock

But is that true? Others think that he put a lot of bodies there himself.

*GBH = Grievous Bodily Harm (for when you get away with murder)
*UVF = Ulster Voluntary Force (a Protestant paramilitary organisation)

Ladd v Marshall Still Rules After Over 50 Years: Time to Abandon It?

Ladd v Marshall (see the title link) is the most important decision governing appeals in England and Wales.

It is also a decision, essentially, of Lord Denning. That alone would make it worth reading. Although a 1954 decision it is only much more recently available over the internet.

The core of the decision as follows:

The principles to be applied are the same as those always applied when fresh evidence is sought to be introduced. In order to justify the reception of fresh evidence or a new trial, three conditions mast be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence most be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

Bailii does not seem to add numbers to the paragraphs of old decisions but the above is about half way down.

The problem with Ladd v Marshall is that it can be used as a lazy excuse by the Court of Appeal to turn a blind eye to otherwise exculpatory evidence.

QUESTIONS:

Should we forget this decision and allow our appeal courts to simply decide whether someone was really guilty or not?

After all, if someone is not guilty why should he/she be kept in prison simply because his incompetent legal team failed to find evidence that they could have done if they had been competent?

Victim Of Rapist Lottery Winner Allowed To Sue After 20 Years!

LOTTO RAPIST:

IORWORTH HOARE

This case has been to the House of Lords already and changed the law in the sense that they decided that the shorter 3 year limitation period for bringing claims for personal injury applied to intentional assaults rather than the longer 6 year period generally applicable for other torts.

That was a victory for the rape victim. Why? Because the 3 year period can be extended in exceptional circumstances but the 6 year period cannot.

Whether the period should be extended was referred back to the High Court and its decision was released on the internet today. See the title link.

Mr Justice Coulson has given the Claimant the extension and allowed her action to proceed against her rapist. Instinctively, we probably all feel that he has made the right decision. Why should the undeserving £7 million pound lottery winning rapist not compensate his victim?

Legally, I am less sure. Mr Justice Coulson has done his very best to render his decision appeal proof. I am not sure that it, in fact, is.

Here are his reasons for exercising his discretion in the Claimant's favour:

"... When considering all the circumstances of this case, I have identified a number of factors in the defendant's favour. These include, in particular, the length of the delay, the possible difficulties for the defendant on some aspects of the evidence on causation caused by that delay, and the payment of the £5,000 by the CICB. However, I have concluded that the factors in the claimant's favour are more numerous and of significantly greater weight. They lead me unhesitatingly to conclude that equity requires that the discretion under section 33 be exercised in her favour.

Those factors include in particular:

(a) The nature and seriousness of the underlying tortious wrong;
(b) The fact that one of the consequences of that wrong was the defendant's impecuniosity (because he was unable to earn money by which he could otherwise have met a judgment for damages);
(c) The fact that, prior to his lottery win, the defendant's impecuniosity meant that he was simply not worth pursuing in an action for damages. This was the principal reason for the claimant's delay and one that I consider to be reasonable on the particular facts of this case;
(d) The fact that the claimant acted promptly following the defendant's release from prison and his lottery win:
(e)The fact that the 'clinically significant' second bout of PTSD in 2004 will be capable of being fully addressed by both parties at any trial."

Do these factors fully and necessarily trump the purpose of our limitation legislation; which is to enable potential defendants to know when the risk of a claim against them has expired and they can rest easy?

Well, Mr Hoare certainly has the resources to explore this question on further appeal.

No-one, I think, is going to wish him luck. It emerged after the verdict that this little bastard had "six previous convictions for rape, attempted rape and indecent assault." A less attractive client would be difficult to envisage.

I would not touch him with a barge pole and it can hardly be defamation to describe him, quite simply, as a piece of low life scum. Hopefully, he will spend any part of his fortune that does not go in damages to the Claimant on legal fees!

And, what about his other six proved victims? They should be consulting lawyers now.

Here he is at the time:

And here he is now:

A small picture of a small man. You will need the picture as he lives under aliases.

QUIZ QUESTION: What were they thinking of when they let this man out?

British MPs Are World's Champion Pigs: It's Official

Today, British MPs have taken a narrow lead over Members of the European Parliament to take the title of the most mendacious and greedy so-called public servants in a supposedly democratic society. See the title post.

They simply will not give up their perks no matter what public opprobrium this entails. No matter the stench; they want their money.

Mind you, it is nice to see such cross-party cooperation on an issue of public interest!

The leaders consult:

Mr Loophole Does It Again!

Those of you who are not criminal defence lawyers may raise the odd eyebrow at his successes but Nick Freeman has clearly earned his self-bestowed title of "Mr Loophole". Well, apparently, it is a registered trade mark. No doubt, this is to prevent unfair competition with such an otherwise likable man who is a stalwart of his local community.


His latest coup is to have successfully defended Andrew Flintoff against a speeding charge (87 mph in a 50 mph zone) because the notice was sent two days late.


I entirely agree that the defence, although technical, was entirely justified. The Crown Prosecution Service must be held strictly to statutory requirements for a successful prosecution.

I am not sure all of the non-lawyers who do not read this site anyway will necessarily agree.

That, however, is a matter for Parliament.

I do think legal aid criminal lawyers should be learning a few tricks from Mr Freeman. Surely, these defences ought to be available to all and not just the rich and famous who can afford Mr Freeman.

A Sloppy Case

A headline in The Times today is as follows:

'Sloppy' justice system set criminal free to stab an ainnocent man

I think that "ainnocent" could reasonably described as "sloppy" when emanating from a major news organisation; but, no matter. They will probably change it quickly and before you get to the title link.

The error also does not matter at all. It is merely ironic. The content of the story does matter.

The victim is pictured at the head of this post. He was killed by this man:

Justice For the Tibetan Dead and Mangled

Do Justice You Corrupt and Disgusting Alleged Representatives. Yes, you, Mr Brown; our alleged Prime Minister.

Hang 'em High

Another victim:

SOPHIE LANCASTER

"Sophie, 20, was booted in the face and left in a coma as she tried to protect Robert Maltby, 21, during the “totally unprovoked” attack in a park.

The couple were so badly beaten that medics and police could not tell which was which as they lay side by side unconscious in a pool of blood."

Another victim:

DAVID MORLEY

"Mr Whitehead described lying on the pavement and putting his hands around his head while he was kicked and punched in the ribs and head.

He told the court one of his assailants "seemed to be getting enjoyment" out of it and was smiling or laughing.

He described looking over to see Mr Morley sat against hoardings near the bench.

"A girl ran up and kicked his head like a football. There was only the girl when I saw him. She went over to David. She pulled her foot back and was kicking him like a football very hard to the head two or three times.""

WHAT THE LEGAL PROFESSION IS DOING ABOUT IT:

OUR MAJOR ISSUE: FISHNETS?

"In the case of fishnet tights versus office decorum, the jury was most certainly out yesterday.

A law firm's decision to ban women wearing fishnets to work has left lawyers as neatly divided as a divorcing millionaire's fortune.

The unidentified firm has decreed that female lawyers in fishnets distract male colleagues and look unprofessional".

AND WHAT THE JUDGES ARE DOING:

Mr Justice Coleridge blames youth crime, child abuse, drug addiction and binge-drinking on the "meltdown" of relations between parents and children.

He warns that the collapse of the family unit is a threat to the nation as bad as terrorism, crime, drugs or global warming.

And:

"He will say: "Almost all society's ills can be traced directly to the collapse of family life. We all know it. Examine the background of almost every child in the care system or the youth justice system and you will discover a broken family.

"Ditto the drug addict. Ditto the binge drinker. Ditto those children who are truanting or who cannot behave at school.

"Scratch the surface of these cases and you invariably find a miserable family, overseen by a dysfunctional and fractured parental relationship - or none at all."

Calling for action before it is too late, the judge will say family breakdown is as serious as global warming."

IS HE RIGHT?

Ultimately Cross

I have long resisted commenting on sentencing policy. I am not a criminal lawyer and I do not write, and rarely agree with, Daily Mail editorials.

However, this gifted young man's death has not been properly avenged.

And, yes, vengeance is a proper part of the sentencing decision. Otherwise, these atrocious little thugs will never learn that they will not be allowed to get away with it.

The thugs were Patrick Rowe and Dejon Thompson (may their names live in infamy). If anyone has photographs of these animals I will put them up.

Discuss.