Chief Constable of Merseyside Police v McCarthy

In the early hours of 30 September 2012, the Respondent became involved in a violent incident outside the Premier Inn hotel, in the Albert Dock area of Liverpool. 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”). The Respondent brought a claim for damages against the Appellant. By the time of the trial on liability before Mr Recorder Darryl Allen QC, the claims had narrowed to claims for battery based on 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 Recorder 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. In this appeal, we are concerned solely with the Recorder’s finding on the Taser 2 battery claim.

The Respondent, who says he has no recollection of the events of the evening, did not give evidence. His case depended on the CCTV footage and statements from the Appellant’s own officers, experienced in the use of Tasers, one of whom trained PC Burns. The Appellant relied upon a number of witness statements but only two witnesses gave evidence, namely PC Burns and the hotel’s duty manager Mr King. The only evidence challenged was that of PC Burns. It is clear from the judgment that the Recorder relied almost exclusively on the CCTV footage to reach his conclusions.

The footage shows that the incident began inside the hotel with the Respondent’s friend Clinton head-butting a Mr Jonathan Morgan. The scuffle spilled out onto the street. Morgan and Clinton started fighting. Morgan retreated to the hotel. The Respondent and Clinton pushed aside security staff and attacked Morgan in the reception area of the hotel. They punched him to the ground where they both kicked and punched him as he lay helpless. PC Woodman and PC Burns arrived at the hotel. PC Woodman, although physically obstructed by Welch (another of the Respondent’s group) managed to get into the reception area. The Respondent and Clinton decided to make good their escape. The Respondent evaded PC Woodman but turned back and knocked him to the ground, with considerable force, to enable Clinton to get past.

By this time PC Burns was trying to deal with Welch, who was verbally and physically aggressive. PC Burns drew his Taser, removed the safety catch and pointed it at Welch. The Respondent and Clinton burst out of the hotel with their hands in front of them and ran directly at PC Burns. PC Burns fired his Taser for the first time (Taser 1) with approximately a six second charge. The Respondent fell onto PC Burns and both fell down the steps. The Respondent attempted to get to his feet and PC Burns delivered a “distraction” kick. This failed to keep him still and the Respondent ran off a short distance towards others. PC Burns fired his Taser again (Taser 2) for ten to eleven seconds. The Respondent fell to the ground and suffered a cardiac arrest; there is no evidence, as yet, to say at what point he suffered the arrest. He was resuscitated at the scene but continues to complain of consequential symptoms.

The following facts and findings of fact are said to be material:

Considerable time was spent in the court below and in written submissions before us on the ingredients of the law of trespass to the person, in particular, the extent of the mental element required. However, it became common ground during the course of argument that the only principles of law relevant to our consideration can be shortly stated. The tort of battery requires the actual infliction of unlawful physical contact. The act of battery itself may be intentional or reckless but an intention to injure is not required. Once a prima facie battery is established the burden of proof in a civil action shifts to the defendant to justify the battery, in this case by the Appellant’s establishing that his officer 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.

Mr Wells for the Appellant insisted he does not challenge the primary findings of fact but criticised the finding of battery on a number of bases. In summary, his grounds are:

On the question of whether the Recorder set the bar too high, the competing arguments are straightforward. On the one hand it is said that in reaching the conclusion that the officer’s use of force in Taser 2 was excessive the Recorder has failed to give sufficient weight to his own findings of fact. 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 the Taser in Taser 1 and in Taser 2 that it was necessary to use force and the kind of force he chose was reasonable.

The only explanation for his failure to take his finger off the trigger is because he was distracted by another potential attack by one of the Respondent’s confederates Clinton. Clinton, to the officer’s knowledge, had already behaved extremely violently. In those circumstances it cannot be right to say the further five to six seconds discharge was unreasonable, whatever concessions the officer himself may have made. To find that five seconds discharge would have been lawful but eleven seconds was not lawful, in these circumstances, is unrealistic and itself unreasonable.

On the other hand, Ms MacDonald points to the obvious care taken by the Recorder in a lengthy and complicated judgment. The Recorder directed himself in law correctly, analysed the evidence with skill and made clear findings of fact. He saw and heard the witnesses give evidence. He reminded himself of the difficult circumstances in which the officers found themselves. However, a Taser is a potentially lethal weapon and officers are trained to exercise great care in its use. The Recorder was therefore entitled to find that although the officer was justified in firing the Taser, he was not justified in keeping his finger on the trigger for ten to eleven seconds. This court should be loath to interfere with a trial’s judge’s findings of the facts and conclusions drawn from them.

In the second and third grounds Mr Wells attempted to divide Taser 2 into two- the first five seconds (part 1) and the following five to six seconds (part 2). If such a division is possible (Ms MacDonald says it is not) Mr Wells claims the finding of battery cannot be sustained. The Recorder himself drew a clear distinction between part 1 and part 2. The first five seconds is the only intentional infliction of force. It was held to be lawful and therefore there can be no battery. The second six seconds was unintentional and therefore the relevant tort is negligence not battery. Negligence was not pleaded in this respect. Had it been, there would have been arguments about the extent and nature of the officer’s duty of care, the proof of loss or damage and significant contributory negligence on the part of the Respondent. Not only was the Respondent behaving violently so as to bring the use of the Taser upon himself, he had been taking cocaine and possibly drinking. These are all factors that are thought to exacerbate the effect of a Taser.

Mr Wells argued that the effect of the Recorder’s approach is to penalise the Appellant for more than is supported by the factual findings and to expose him to liability for the whole eleven seconds. The Appellant should only be liable for any loss caused by his negligence. This may create difficulties of causation for the Appellant but the trial process is well able to cope with such difficulties.

Ms MacDonald rejected this approach preferring to take Taser 2 as a whole. Taser 2 was the intentional infliction of force and prima facie unlawful unless the defendant could establish that the use of force in fact used was justified. The Appellant failed to justify the force in fact used because, as his own witness accepted, eleven seconds was unnecessary and excessive.

In any event, Ms MacDonald disputed whether Taser 2 could be divided into two parts. She criticised Mr Wells for over reliance on the Recorder’s use of the word unintentional in so far as part 2 is concerned. He used the word “unintentional” because that was the word used by PC Burns himself when pressed for an explanation for the lengthy Taser charge. It was not because the Recorder himself considered that, in law, PC Burns did not intend to hold his finger on the trigger for the full eleven seconds. PC Burns’ evidence that the depression of the trigger for eleven seconds was “unintentional” must be understood in light of his evidence that he was “not aware” that the trigger was held down for that length of time until later informed of this and that he “could not remember holding the trigger down.”

Thus, PC Burns meant only that it was not his plan when he pressed the trigger to maintain pressure for eleven seconds. It does not follow, she submitted, that his pressing the trigger and his continued depression of the trigger were not deliberate or intentional in the sense of the word used in the tort of battery. The requirement for an “intentional act” to found the tort of battery is not a demanding one.

There are two issues to be resolved on this appeal and they can be simply stated:

As Ms MacDonald rightly observed, the general principle is that an appellate court should not interfere too readily with a trial judge’s factual conclusions. The trial judge has the significant advantage of seeing and hearing the witnesses give their evidence. However, in this case very little evidence was disputed. Most of the Recorder’s findings of fact came from the CCTV footage and we are not being asked to overturn them. It is the conclusions he drew from those findings of fact that are subject to challenge. To my mind, as an appellate court we are in an unusually good position to determine whether those conclusions were justified.

Tasers are potentially lethal weapons. Sadly, their deployment on the streets of this country has increased as the fight against crime has become more difficult. The challenges facing police officers having to make rapid decisions on the use of force were considered by the Divisional Court in E7 v Sir Christopher Holland ([2014] EWHC 452 (Admin). The court had before it an application to review the findings of a public inquiry into the fatal shooting of Mr Azelle Rodney by a firearms officer known as E7. Sir Brian Leveson P giving the judgment of the court stated that the use of fatal force by police officers must be subject “to the most detailed and rigorous analysis”. However, any analysis should give full recognition to:

“…. the enormous challenges facing the police along with the urgency and almost instantaneous decision making required of the highly trained officers involved. It is they who have to become involved pro-actively in the prevention of crime and the protection of society while ensuring, to such extent as is humanly possible, that their colleagues, also in harm’s way, are similarly protected.” (paragraph 1)

It is clear from the material put before the Recorder, that just as the firearms officer E7 was highly trained, the training given to PC Burns and his colleagues in the use of Tasers was extensive and covered every aspect of their use. Officers are trained where to aim, the likely effects of the discharge, the particular vulnerabilities of some individuals, and how to assist those hit by a Taser. They 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.

To my mind, it would have been helpful to know whether Mr Wells’ assumption that continued pressure on the trigger after the first cycle results in a second five second cycle that can only be stopped by deliberately applying the safety catch was correct. If so, it would mean that the second cycle was triggered at approximately 02.51.27 just as Clinton approached PC Burns aggressively and that the officer could only have stopped the continued discharge by applying the safety catch to the Taser at a time he was distracted by a possible attack. It is difficult to see how that could be described as “unreasonable in all the circumstances”,

However, it is not necessary to resolve that issue for the purposes of this appeal and I am prepared to assume (as Ms MacDonald assumed) that the second five to six second burst was the result of continued pressure on the trigger. To my mind, to find this was unreasonable also ignores the realities of the situation and the Recorder’s own findings. The Recorder found that the officer was justified in firing the Taser, that he only maintained the pressure on the trigger because he was distracted by a possible attack from Clinton and that he did not intend to maintain the pressure. Yet, because the officer was not “physically overpowered”, knew excessive discharge of a Taser created a “reasonably foreseeable risk of serious injury” and “failed to exercise sufficient control over the Taser”, he found the force was unreasonable.

PC Burns was involved in a violent, noisy, fast moving and highly charged situation. Several men were in fighting mode. Two of them in particular, the Respondent and Clinton, had committed a vicious attack on Morgan inside the hotel. Admittedly PC Burns did not witness this, but PC Woodman did, and it must have affected his reaction to events and the way he appeared to PC Burns. PC Burns saw the Respondent knock PC Woodman to one side. PC Burns genuinely and reasonably believed the Respondent intended to attack others and that Clinton was coming at him, probably to attack him. There can be no other reason for turning to face him and point the Taser at him. In the agony of the moment, he failed to release the trigger after the initial burst of five seconds. He did not intend to keep his finger on the trigger for longer but was distracted by a possible attack. In those circumstances to find that the use of force was unreasonable was, in my view, to set the bar that the Appellant must meet too high.

Had it been necessary to consider the second question, I would accept Ms MacDonald’s argument that a fact finder should be wary of subjecting a short period of time to close forensic analysis and with the considerable benefit of hindsight. This was also an issue addressed in E7, albeit the time period under analysis in that case was a matter of split seconds as opposed to seconds. The President said this at paragraph 54.

“These six shots had been fired less than 1.5 seconds … In our judgment, there is considerable force in the expressed concern that minute dissection of fractions of a second with the benefit of hindsight will discourage an appropriate response, in real time, to threats thereby resulting in potentially increased danger to those involved in (or likely to be affected by) these exceedingly difficult operations.”

I also acknowledge that, on one view, there were no easily divisible acts in this case. Once the officer had fired the Taser, he kept his finger on the trigger thereby causing it to emit a continuous stream of electrical pulses for the whole approximately eleven seconds.

However, I note that the Recorder himself decided it would be possible to divide Taser 2 into two: the first five seconds which was justified and the second six seconds which were not. 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”.

Finally, if the Recorder’s finding in battery stood, and the medical evidence shows the cardiac arrest was caused during the first five seconds of Taser 2, the Appellant would be liable for the damage caused to the Respondent, during the lawful infliction of force, justified by the Respondent’s own violent behaviour, solely on the basis that the officer kept his finger on the trigger when under assault by the Respondent’s friend. In the second six seconds he was, at worst, acting negligently, yet there would be no question of contributory negligence, no examination of the extent of the officer’s duty of care and no issue of causation. I also see considerable force, therefore, in Mr Wells’ third ground.

I pay tribute to the Recorder for the undoubted care he took in preparing his judgment. He was faced with a complicated situation, a large number of different issues, a disagreement on the legal principles to be applied and several possible outcomes. Our task has been considerably easier; we have been able to focus on just one issue on which the parties eventually agreed the legal principles. On that one issue, I am satisfied the Recorder was wrong. The claim in trespass to the person should have failed. I would allow this appeal.

I agree that the appeal should be allowed.  I explain my own reasoning because we are disagreeing with the trial judge who produced a detailed, careful and thoughtful judgment.  

There are two issues for decision in the appeal:

The first issue raises the question whether the force used during Taser 2 was reasonable in all the circumstances.  It is lawful for one person to use force towards another in self-defence or in defence of another. He may use only reasonable force, that being a question of fact. 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. In Ashley v Chief Constable of Sussex Police [2008] 1 A.C. 962, the House of Lords was concerned with the relationship between self-defence in the criminal context, and self-defence in the context of a claim for trespass to the person. 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.

As Hallett LJ has explained, the claim against the Chief Constable had four components.  Mr McCarthy contended that (a) the use of Taser 1 was unlawful; (b) the kick he received from PC Burns and the use of his knee were unlawful; (c) the use of Taser 2 was unlawful; and (d) the police officers were negligent in their treatment of him after Taser 2.  Whilst the negligence claim relating to treatment, on which the Respondent succeeded and in respect of which there is no appeal, can be carved off from what went before, the circumstances and findings of fact in connection with the first and second battery claims are relevant in deciding the question whether the third (namely Taser 2) was reasonable in all the circumstances.  

Mr McCarthy was party with Mr Clinton to the violence inflicted upon Mr Morgan in the Premier Inn in Liverpool.  He assaulted PC Woodman as he left the hotel.  They were seeking to avoid arrest.  He and Mr Clinton rushed towards PC Burns who genuinely and reasonably believed that they were about to attack him. As a result he fired the Taser for the first time. As the judge observed:

“There is no issue as to their demeanour and behaviour at this point.  Suffice to say they can be seen running at speed directly at PC Burns who has his Taser drawn with the safety catch released and aimed at Welch at that point.  PC Burns then aimed and fired his Taser at the Claimant as he approached him.”

Welch was another person involved in the disturbance.  Mr McCarthy fell onto PC Burns causing both to fall down a flight of steps into the street.  The barbs of the Taser remained attached after the Taser 1 discharge was complete. Mr McCarthy appeared to be poised to attack PC Burns as he tried to get to his feet.  The Recorder accepted that PC Burns genuinely and reasonably believed that Mr McCarthy remained intent on attacking him.   That was when PC Burns delivered a “distraction kick”.  But that was not effective to keep him on the ground.  PC Burns then reasonably feared that Mr McCarthy was intent upon attacking a group of people standing nearly.  That was when he discharged his Taser for the second time. 

The Recorder noted that PC Burns’ view of what might occur was mediated by his having witnessed Mr McCarthy fighting Mr Morgan outside the hotel, then seeing him chase Mr Morgan into the hotel where he knew a violent incident had occurred, then the push of PC Woodman and the running towards him at speed. He concluded that all the actions taken against Mr McCarthy by PC Burns, (Taser 1, the kick and Taser 2) were reasonable in view of his conduct and the surrounding circumstances.  The wider allegation that PC Burns kneed Mr McCarthy was contradicted by the CCTV evidence. 

The functioning of the Taser was the subject of some debate between counsel in the appeal.  There was agreement that when fired the shock delivered by the Taser lasts for about five seconds whether or not the trigger is held down for that period or not.  As long as the trigger is released before the cycle ends, the shock delivered with be of about five seconds’ duration.  The duration of the shock delivered by Taser 1 was of that order although the Recorder found that PC Burns held the trigger down for six seconds for Taser 1.    Counsel were unable to agree how a Taser operates if the trigger is depressed for more than five seconds.  For the Chief Constable Mr Wells submitted that a second cycle of about five seconds starts. The consequence would be that if a police officer held down the trigger for six seconds a shock of about ten seconds would be delivered.  Ms MacDonald submitted that once the first five seconds have passed, a shock is delivered for so long only as the trigger remains depressed.    We were taken to some of the underlying evidence which, to my mind, did not clarify the issue.  In my view we must proceed on the finding of the Recorder.  His conclusion was that a shock was delivered for between ten and eleven seconds and that PC Burns held the trigger down for about eleven seconds. In terms he said:

“If the user’s finger remains on the trigger the cycle continues until the trigger is released and the data download will show the duration of time the cycle has been running until the trigger was released.”

PC Burns readily accepted that he should not have held the trigger down for eleven seconds.  It was for that reason that in evidence, and extensively in the judgment, the question why he did so was explored.   A possibility canvassed in evidence, but rejected by the Recorder, was that PC Burns suffered from “gorilla grip”, a description of the hand freezing as a result of physiological changes brought about by stress.  PC Burns explained that in discharging Taser 2 he intended to deliver a five second charge only.   He accepted in evidence that the period beyond that was “excessive”.  When he gave his statement (i.e. before the data memory of the Taser was interrogated) he thought he had discharged it for only five seconds.   He described the longer discharge as unintentional.  He was not challenged on that point. 

A possible explanation canvassed in evidence was that PC Burns was distracted by Mr Clinton who was menacing him.  The CCTV footage shows PC Burns turning towards Mr Clinton whilst discharging Taser 2. The Recorder accepted that PC Burns intended to fire Taser 2 for five seconds, however:

“[H]e was distracted by Clinton who advanced towards him in an aggressive manner.  I reach that conclusion as Clinton can clearly be seen on the CCTV footage, particularly the footage prepared for the criminal trial, advancing towards PC Burns with his arms raised.  I find that Clinton was probably shouting at or towards PC Burns in an aggressive and abusive way, consistent with his behaviour up until that point.  The CCTV footage shows PC Burns facing towards Clinton with his hands in front of him suggesting he is pointing the Taser towards Clinton.  I find that is what he was doing.  His attention at that point, from the CCTV footage, is clearly on Clinton and not the Claimant.  I note also that PC Burns was not challenged as to his account that firing the Taser for 11 seconds was unintentional.”

This series of findings is important because it provides the explanation accepted by the Recorder for the unintentional or inadvertent maintenance of the discharge beyond five seconds of Taser 2.  

The Recorder found that although the decision to fire Taser 2 was reasonable the force used (i.e eleven seconds) was “unreasonable, excessive and disproportionate to the threat presented by the claimant”.  That, of course, was correct.  It was not suggested that Mr McCarthy continued to pose a threat.  Taser 2 had taken him to the ground.  In paragraph 135 of his judgment the Recorder identified a number of features which informed that conclusion including that Mr McCarthy was controlled within seconds of Taser 2 being fired and thereby ceased to pose a threat to PC Burns.   He concluded that PC Burns could and should have released the trigger before five seconds had expired.  He stated that PC Burns “was distracted by the actions of Clinton” but nonetheless knew that he had fired the Taser at the Claimant and knew that the Taser was discharging its electrical charge as it was still attached to the Claimant and the trigger was pressed.  He considered that from his training PC Burns knew that the use of a Taser gave rise to a risk of injury.  He added that PC Burns’ failure to exercise “essential and appropriate control of the Taser was not justified by the actions of Clinton and was unreasonable.”  He found that “had the charge from Taser 2 been limited to five seconds, as was intended, I would have found that it was a reasonable and lawful use of force.”

The approach of the Recorder divided into two parts.  First, he determined what occurred by his findings of fact.  Secondly, he considered whether those findings led him to conclude that the force used by PC Burns was reasonable.  None of his findings of fact can be attacked in this appeal.  That said, it is the overall conclusion that the Recorder reached on those findings with which, respectfully, I disagree.

In paragraph 135 of his judgment, some of which I have just summarised, the Recorder noted, somewhat laconically, that PC Burns was distracted by Mr Clinton but that he was not justified in maintaining his finger on the trigger. To an extent the short hand of “distraction” reflects the earlier finding of fact that I have set out in full.  But distraction rather understates what was happening, the full flavour of which comes from the earlier finding and the CCTV footage.  PC Burns was not distracted in the sense that his mind wandered from the position of Mr McCarthy because something else of passing interest occupied his attention.    He was distracted because a man whom he knew to be party to serious violence against Mr Morgan and who had already assaulted one of his colleagues was advancing towards him shouting in an abusive and aggressive manner with his arms raised. It is clear that PC Burns was put in fear of immediate violence from Mr Clinton.  In my opinion the Recorder underplays the impact of his earlier finding of fact in his conclusions.  Furthermore, those conclusions do not reflect the earlier finding of fact that PC Burns did not intend to hold the trigger down for eleven seconds.   

In the course of argument counsel made submissions on the mental element required to support a claim for trespass to the person.  Mr Wells submitted that since intent is a necessary ingredient of the tort, the Recorder’s finding was fatal to his overall conclusion.  Ms MacDonald submitted that neither PC Burns (who introduced the concept in his evidence) nor the Recorder was using the word “intent” in a technical sense relevant to mens rea.  As she reminded us, battery may be committed intentionally or recklessly: see for example Bici v Ministry of Defence [2004] EWHC 786 (QB) at paragraph 67 per Elias J.  The boundaries of recklessness, and whether negligence may suffice for these purposes, may lack some clarity but it is not necessary to explore them in this appeal.  A comprehensive discussion of the relevant authorities may be found in the Omagh Bombing Case [2009] NIQB 50.  It is unnecessary to explore them because it is clear that the Recorder was not concerned with mens rea in a technical sense when he concluded that PC Burns did not intend to keep the trigger depressed for eleven seconds or thereabouts.  

Both PC Burns and the Recorder were using the term in a sense which conveyed that he did not mean to keep the trigger depressed for more than five seconds.  He did so because his attention was focussed on the threatening Mr Clinton.  In my judgment, the 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 findings that he deployed Taser 2 entirely reasonably, thereafter reacted to the menace of an imminent attack from Mr Clinton to whom he turned his attention and as a result kept his finger on the trigger without realising he was doing so, were not drawn together by the Recorder in answering the question whether PC Burns’ actions were unreasonable.   Indeed the statement that PC Burns “knew that the Taser was discharging its electrical charge … and the trigger was pressed” sits uneasily with the earlier finding about a lack of intention and distraction in the sense described.  In my view, the combination of findings of fact made by the Recorder lead to the conclusion that PC Burns’ actions were reasonable in all the circumstances and that the Recorder erred in coming to the contrary conclusion.   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.  But the words of Lord Morris of Borth-y-Gest in Palmer v The Queen [1971] 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 Recorder concluded that the of firing Taser 2 was lawful and that had PC Burns delivered only five seconds of charge that too would have been lawful.   Had that been the case then the injury sustained by Mr McCarthy during those five seconds would have been the result of the lawful application of force and not actionable. That said, his finding was that Taser 2 was unlawful for all ten or eleven seconds of discharge.  In doing so he accepted a submission made on behalf of Mr McCarthy which he recorded in these terms:

“Finally, Miss Dodd relied upon the doctrine of trespass ab initio. In this regard she referred to me an extract from Clerk & Lindsell [20th ed. @15-50, The Six Carpenters’ Case (1610) 8 Coke Reports 146a and Smith v Eggington (1837) 7 Adolphus and Ellis 167.  She submitted that once a trespass was established it was a trespass ab initio and a defendant could not justify the first part of the trespass.”

The relevant passage from Clerk & Lindsell, now the 21st edition at 15-50, states:

“Where what is prima facie a wrongful act is committed under the authority of the law, and this authority is abused, it ceases to provide protection and the party is liable not merely in respect of the way in which he exceeds his lawful authority, but also for all he did in exercise of the right.  He is said to be a trespasser ab initio, on the assumption that his subsequent misconduct evidences an intention from the first to commit unlawful acts under the colour of a lawful authority.  This ancient doctrine has been said to be obsolete but has never been overturned.  But if A, being in lawful custody is detained after he has acquired a right to his discharge, the detention is treated as a fresh imprisonment, and does not make the prior imprisonment unlawful, for it is said that in such a case unlawful prolongation cannot have been contemplated on the original arrest.”

The authority for the first proposition is The Six Carpenters’ Case. The six carpenters entered a tavern in the City of London called the Queen's Head. They had a right by law to enter into it because it was a common tavern. They ordered wine and bread but refused to pay. As Lord Denning MR noted in Cinnamond v British Airways Authority [1980] 1 WLR 582 at 588: 

“The inference was that from the beginning they went in with the intention of having the wine and the bread and not paying for it. The court held that they were guilty of a trespass from the beginning. It was resolved, said Lord Coke at p. 135, that ‘when entry, authority, or licence is given to anyone by the law, and he abuses it, he shall be a trespasser ab initio’ — from the beginning.”

The doctrine of trespass ab initio is best understood as an evidential one, rather than an absolute rule of law.  It could safely be inferred that when the carpenters entered the tavern they had no intention of paying for the goods they consumed.  They had no lawful authority to enter to consume goods without payment so they were trespassers from the outset. The different approach reflected in the authorities relating to detention which was lawful at the beginning but later became unlawful illustrates that the doctrine is evidential.  In the Smith v Eggington case Littledale J observed:

“Where there is an authority given by law for doing an act, there an abuse may turn the act into a trespass ab initio.  But that rule does not apply here.  The rule is said to rest upon this: - that the subsequent illegality shews the party to have contemplated an illegality all along, so the whole becomes a trespass.  But here the Sheriff could not, from the first, have had in view the detention of the plaintiff after the time should have expired.”

Ms MacDonald submitted that to divide the period of Taser 2 into two parts, the first lawful and the second unlawful, would suggest that an exercise should be undertaken of computing the hypothetical difference between the force actually applied and that which might have been applied lawfully in all cases which raised self-defence or defence of others.  But that is not the Appellant’s argument in this case.  Mr Wells submitted that having found that the first five seconds of the discharge from Taser 2 was reasonably inflicted upon Mr McCarthy it was wrong to conclude that the whole ten or eleven seconds amounted to a battery.

We see in the facts of this case a clear recognition that the final battery found by the Recorder did not, via the doctrine of trespass ab initio, render either the earlier kick or Taser 1 unlawful, even though they occurred in a continuous sequence of events during the disturbance caused by Mr McCarthy and his friends.  There was no difficulty in treating the incidents separately.   In my view the circumstances which enabled the Recorder clearly to distinguish between the initial firing of Taser 2, in terms said by him to have been a reasonable reaction to the threat posed by Mr McCarthy, with its inevitable discharge for five seconds, and what followed demonstrates that the doctrine has no application in this case.  It might be thought perverse for a court to find positively that an action was lawful but then, through the alchemy of the doctrine of trespass ab initio, to pretend it is unlawful and thereby require compensation to be paid, in substance, for a lawful act.  It is not difficult to imagine other circumstances in which a civil (or criminal) court might have to grapple with the question whether part of the person’s reaction to a threat was lawful but other parts unlawful.  A person 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 hardly serve justice if compensation were 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 by his findings negated the very inference that might have been be drawn.

In the result, in common with Hallett LJ and the President, I would allow the appeal with the result that the liability of the Chief Constable is limited to the consequences of the negligence of his officers which followed Taser 2.

I also agree. 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).