The case of McCarthy v Chief Constable of Merseyside Police  EWCA Civ 1257 provides an interesting analysis of the tort of battery, trespass ab initio and use of reasonable force relating to use of a taser in a policing context. The Court of Appeal judgments provide clear recognition of the difficulties and realities faced by police officers in the context of fast moving, violent incidents in which fine judgments are difficult and provide important guidance as to the correct factual and legal approach in such cases.
In the early hours of 30 September 2012, the Respondent (McCarthy) became involved in a violent incident outside the Premier Inn Hotel, in the Albert Dock area of Liverpool which involved McCarthy and a number of other men including a man called Clinton. Two of the Appellant’s officers, PC Burns and PC Woodman, attended. In the course of subduing the Respondent, PC Burns kicked the Respondent once, placed a knee in his back and tasered him twice (“Taser 1” and “Taser 2”). It was common ground that this was a fast moving incident in which all these actions occurred within a very short space of time. The first taser lasted for a single 5 second cycle (which is the pre-set time that a taser is set to fire when the trigger is pressed). Officers are taught to fire a taser only for this single pre-set period. However for “taser 2”, the officer kept his finger on the trigger for 11 seconds having intended to only fire it for only five seconds. The officer acknowledged that the additional period was excessive but claimed that it was unintentional in all the circumstances.
The Respondent brought a claim for damages against the Appellant. By the time of the trial on liability, the claims had narrowed to claims for battery based on PC Burns’ conduct in relation to Taser 1 and Taser 2, for assault based on the kick and knee in the back and for negligence based on a failure to take proper care of the Respondent after Taser 2. The judgment at first instance found for the Appellant on the Taser 1 battery claim, against the Appellant on the Taser 2 battery claim, for the Appellant on the assault claims and against the Appellant on the claim in negligence.
The tort of battery requires the actual infliction of unlawful physical contact. The act of battery itself may be intentional or reckless but does not require an intent to injure. In a civil action, once a prima facie battery is established, the burden of proof shifts to the defendant to justify the battery. This required the Appellant to establish that PC Burns acted in lawful self-defence, the prevention of crime or to effect an arrest. Section 3 of the Criminal Law Act 1967 empowers any person to use such force as is reasonable in all the circumstances. Section 117 of the Police and Criminal Evidence Act 1984 provides that a constable exercising any powers under the Act (for example arrest, search, and detention) may use reasonable force. The issue therefore was whether the Applicant had established that the force used in “taser 2” was reasonable in all the circumstances.
The appeal was concerned solely with the judgment’s finding on the Taser 2 battery claim. The judgment at first instance had found that if taser 2 had only been fired for five seconds then this would have been reasonable force but the fact that it had been fired for 11 seconds made the force used unreasonable.
The Court of Appeal overturned this finding and the two Court of Appeal judgments were given by Lady Justice Hallett and Lord Justice Burnett with which the President of the Queen’s Bench Division, Lord Justice Leveson concurred.
Ordinarily, the general principle is that an appellate court will not lightly interfere with a trial judgment’s factual conclusions. However, in this case very little evidence was disputed and most of the Recorder’s findings of fact came from the CCTV footage and it was the conclusions he drew from those findings of fact that were subject to challenge.
There were a number of material facts including that:
As the Respondent and Clinton came out of the Premier Inn with their arms out, there was every chance that they would assault P.C. Burns if necessary. The Respondent knocked PC Burns down the stairs.
When he fired Taser 1, PC Burns genuinely and reasonably believed that he was at risk of attack by the Respondent and Clinton.
When he fired Taser 2, PC Burns genuinely and reasonably believed that the Respondent was about to attack other males outside the Premier Inn and fired to prevent him attacking them.
The Respondent fell to the ground within one or two seconds of Taser 2 being fired.
PC Burns kept his finger on the trigger for approximately eleven seconds, having intended to fire it for five seconds. The officer accepted the use of force for the further six seconds was excessive and unnecessary but said it was “unintentional”.
Had PC Burns fired for five seconds, his use of force would not have been unlawful.
PC Burns was not physically overwhelmed by the actions of the Respondent or Clinton. However, on the balance of probabilities he was distracted by Clinton who advanced towards him in an aggressive and abusive manner with his arms raised. PC Burns turned the Taser towards Clinton although the probes remained in or attached to the Respondent, so it could not be used against Clinton.
PC Burns’ failure to exercise essential and appropriate control of the Taser was not justified by the actions of Clinton and, in those circumstances, was unreasonable.
The alleged offender must clearly and reliably admit the offence. Although a formal taped interview may not always be required there should be a clear PACE-compliant record of the admission. Arguments about whether or not the admission was clear are common.
Police officers are trained to use the Taser in an initial five second burst and discouraged from keeping their finger on the trigger longer, but it is accepted that a longer discharge may be necessary. Conditions on the street cannot be replicated in a training centre and those responsible for the training recognise that one five second burst may not suffice to subdue a suspect. Further, an officer is unlikely to have the luxury of mature reflection. He will not have the time to reflect upon his target or the precise length of time for which he discharges his weapon. He may even freeze in a highly charged situation such as the present. Thus, the courts must have regard not only to the rights of the person at the receiving end of the Taser but also to the challenges facing a police officer endeavouring to maintain law and order in a volatile situation.
Lady Justice Hallett found that this was a fast moving, highly charged and violent situation in which two police officers found themselves under attack. They were doing their best to control the situation and prevent harm to themselves and others. PC Burns genuinely and reasonably believed when he fired Taser 1 and 2 that it was necessary to use force and the kind of force he chose was reasonable.
In her view, the only explanation for PC Burns’ failure to take his finger off the trigger was because he was distracted by another potential attack by Clinton who had already behaved extremely violently. In those circumstances she considered that it was wrong to say that the further five to six seconds discharge was unreasonable. In her view, to find that five seconds discharge would have been lawful but that eleven seconds was unlawful was unrealistic and unreasonable.
Lady Justice Hallet also doubted the Recorder’s approach in dividing Taser 2 into two and finding the first five seconds justified and the second six seconds unjustified. At para 25 she stated, “If such a division is appropriate, I have my doubts as to whether the Recorder’s findings would support a finding of battery in relation to the second six seconds, in the light of his acceptance that the officer’s mind was distracted by an imminent attack and his continued pressure on the trigger was “unintentional”.”
Lord Justice Burnett approached the case in two parts:
i) Was the Recorder right to conclude that PC Burns committed the tort of trespass to the person by battery during the course of discharging his Taser for the second time (“Taser 2”)?
ii) Was the Recorder right to conclude that, if PC Burns committed the tort of battery, the full duration of discharge of Taser 2 of between ten and eleven seconds was unlawful, rather than only the last five or six seconds?
This raised the question whether the force used during Taser 2 was reasonable in all the circumstances, this being a question of fact. Importantly – the law does not require those faced with circumstances of this kind to weigh carefully the degree of force used. To a considerable extent, reactions will be instinctive. What is reasonable in all the circumstances calls for an evaluative judgment having found the facts.
He set out the difference between self-defence in the civil and the criminal context as per the House of Lords In Ashley v Chief Constable of Sussex Police  1 A.C. 962. In the criminal context it is for the prosecution to disprove self-defence or defence of another. But in a civil case the burden rests upon the defendant, to the civil standard of proof, to establish self-defence or defence of another. In criminal law an honest but mistaken belief, even if it might be considered unreasonable, is sufficient to found the defence. In a civil claim, the defendant must show that he honestly and reasonably believed that it was necessary to defend himself or defend another, in addition to showing that the force used was reasonable in all the circumstances.
Lord Justice Burnett considered it importance in this context that the evidence as accepted by the judgment at first instance was that PC Burns intended to fire Taser 2 for only five seconds but kept his finger on the trigger unintentionally because he was distracted by Clinton advancing menacingly towards him. PC Burns was clearly put in fear of immediate violence from Mr. Clinton and this explained the unintentional or inadvertent maintenance of the discharge beyond five seconds of Taser 2.
Lord Justice Burnett considered that this finding of lack of intent was one of the factors which fed into the question whether PC Burns’ use of Taser 2 was “reasonable in all the circumstances”. The factual findings that, having fired Taser 2, PC Burns did not intend to hold down the trigger and was distracted by the threat of attack from Mr Clinton suggests that what he did was instinctive. What happened was factually unusual because the threat from McCarthy was superseded by a different threat from Mr Clinton. The force used was continued against Mr McCarthy as a result of the distraction and lack of intent.
In this context he cites Lord Morris of Borthy-Gest in Palmer v The Queen  AC 814 at page 827 nonetheless resonate:
“…it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.”
The Second Issue (paras 43-49 of the Judgment)
At first instance, the Recorder had been persuaded that the doctrine of trespass ab initio applied (see Clerk and Lindsell on Torts, 21st edition at 15-50; The Six Carpenters’ Case (1610) 8 Coke Reports 146a and Smith v Eggington (1837) 7 Adolphus and Ellis 167.). This ancient (and rarely used) doctrine states that where what is prima facie a wrongful act is committed under the authority of the law, and this authority is abused, the party is liable not merely in respect of the excess of authority but for the whole of the act done. The assumption being that his subsequent misconduct evidences an intention from the first to commit unlawful acts under the cloak of lawful authority. It was in reliance on this doctrine that the Recorder had held the whole of Taser 2 to be unlawful even though his factual finding was that it was only the last 6 seconds which was “unreasonable force”.
Lord Justice Burnett in a careful analysis at paras 43-49 of the judgment, demonstrates that this doctrine in fact has no application on the facts of this case. In his view, the Recorder’s finding that the first five seconds of Taser 2 were a reasonable reaction to the threat posed by Mr. McCarthy, demonstrates the flaw in this analysis. It is plainly perverse for a court to find positively that an action was lawful but then, through the application of the doctrine of trespass ab initio, to pretend it is unlawful - the consequence of such a finding being that compensation might well be required to be paid in substance for a lawful act.
In Lord Justice Burnett’s view, a civil (or criminal) court might often have to determine whether part of a person’s reaction to a threat was lawful but other parts unlawful. He gives an example of a person, who fearing violence, might reasonably have struck his assailant once, but not reasonably have done so repeatedly thereafter. If the first lawful blow could be demonstrated to have been responsible for a serious injury, it could not be right that compensation should be paid for that injury on the basis that a subsequent strike, which did not materially contribute to the injury, was unlawful.
In this case the Recorder found that PC Burns did not intend illegality all along and therefore in fact by his findings negated the possibility of trespass ab initio that the Respondent sought to draw.
Lord Justice Leveson, in concurring with the judgments given by the other two, stated as follows:
“Noting the doubts expressed by Hallett LJ in paragraph 25 of her judgment, and given the potential significance of the point for the future, I would particularly endorse the analysis of the second issue (if PC Burns committed the tort of battery, whether the extent of his unlawful conduct was the full 10-11 seconds of its duration or only the last 5-6 seconds) in the judgment of Burnett LJ (at paragraphs 43-49).”
It is clear therefore that whilst this case might at first blush appear to be largely fact specific, it is clearly intended that these judgments should have wide reaching impact, and to serve as important guidance for future cases in which the issue of “reasonableness” of use of force falls to be considered.