Robert White v The Chief Constable of Kent Police

The claimant, Robert White, brings this civil claim against the defendant, the Chief Constable of Kent Police, for damages, including aggravated and exemplary damages, for alleged assault and battery, false imprisonment and malicious prosecution.

The claim arises from events on 5 February 2019 when Kent Police officers assisted county court bailiffs to gain entry to 29 Park Road, Sheerness, Kent ME12 1UY (‘the property’). The police officers used force to enter the property. Events culminated in Mr White being arrested for the offence of affray.

Mr White stood trial for that offence at Maidstone Crown Court. The first trial in 2019 was aborted. At the second trial in 2022 Mr White was acquitted.

The claimant issued the claim form on 15 June 2022. A defence was served denying liability.

The claimant’s application for the claim to be heard by a jury was not issued within the time-scale provided in CPR 26.19(1) and it was dismissed for the reasons that I gave at the costs and case management conference on 18 April 2024.

The trial was listed before me on 13-17 October 2025, with day 1 as a judicial reading day. I reserved my judgment. Since I was not confident that the embargo on the draft judgment would be complied with, this judgment has not been circulated to the parties in advance. I can only apologise if there are typographical errors that I have not picked up before handing down the judgment.

Although he initially had solicitors acting for him when the claim was issued, from an early stage in the proceedings Mr White has, as he explained to me at an earlier hearing, by choice acted in person, although with the assistance of his McKenzie Friend, Trevor Young, at the pre-trial review and the trial. The defendant was represented by counsel, Russell Fortt.

The parties agreed that the issues on liability for determination at the trial were as follows:

If the claimant succeeds in any of his claims, he seeks damages, including aggravated and exemplary damages. The overall claim for damages is limited to £25,000.00.

All findings of fact in this judgment are made by me on the balance of probabilities.

I heard evidence from the following witnesses:

In addition, the statements of DC Bell, PC Nicholls, former PS O’Connor and Inspector Duke were agreed by the claimant and have been read by me.

As well as the documents in the agreed trial bundle, to which I will come where relevant in dealing with the evidence on each Issue, I have viewed a number of pieces of video footage from body worn video (‘BWV’) recorded by police officers. I have also seen mobile phone footage taken on 4 December 2018 when the bailiffs first visited the property. On that day they did not attempt to proceed with an eviction.

As is clear from the parties’ respective chronologies in the trial bundle, the timeline of the material events in this case is not significantly in dispute. Where the dates in my chronology are not drawn from the parties’ respective chronologies, they are based on the unchallenged documents in the agreed trial bundle.

The claimant seeks to rely upon the legal rulings made at by HHJ Griffith-Jones, the decision of the CPS as to how to put the prosecution case in the criminal trials, and the direction given to the jury by the trial judge at Maidstone Crown Court, on the issue in this case of whether the police were acting lawfully in using force to enter the property on 5 February 2019. However, a Crown Court ruling or direction does not amount to any kind of legal precedent for a subsequent civil claim such as this. The burden of proof was on the prosecution to prove the case to the criminal standard. Crown Court judges will sometimes, particularly when dealing with an issue of law that is not frequently encountered in criminal cases, err on the side of giving a legal direction that is the most favourable interpretation of the law from the perspective of the defendant on trial. In this case, it is clear that the criminal trial judge was not assisted by the detailed legal submissions and analysis that I have received from both parties.

In my judgment, with the greatest respect to the former Resident Judge, the legal rulings and directions given by HHJ Griffith-Jones are irrelevant to my determination of the legal issue that arises in relation to Issue 1 in particular. I do not consider that the direction given to the jury on the law was correct. I have made my own determination of the law that applies in this case, with the assistance of the submissions of both parties, having consideration of the legal authorities and the evidence in this case.

Use of Force by Mortgagor in Occupation where a Possession Order has been made

The ‘person’ entitled to possession of the property in circumstances where a possession order has been made by the court in favour of a mortgagee (in this case, Nat West/RBS), and where the time for the mortgagors, in this case Mr and Mrs White, and any other occupants, to give possession of the property has passed, is the mortgagee.

By 4 December 2018 (the first attendance by bailiffs) Mr White had no right to possession of the property. According to the information on the warrant, which Mr White did not challenge, the possession order was made on 13 August 2018 and he and his wife were ordered to give possession of the property to Nat West by 10 September 2018. He had applied to stay the warrant and that application had been refused by a judge on 3 December 2018.

In those circumstances Mr White himself had no right to use force to prevent Nat West/RBS, the mortagee, from obtaining possession of the property. He was a trespasser in the property and therefore he was not within the scope of the ‘householder’ defence in section 76 of the Criminal Justice and Immigration Act 2008.

Indeed, as Mr Justice Neuberger (as he then was) said in Tuohy v Bell [2002] EWCA Civ 423, a person might be guilty of contempt of court if he failed to comply with an order for possession requiring him to deliver up possession on or before a particular date and a person would be guilty of contempt of court if he obstructed a bailiff seeking to execute an order for possession pursuant to a lawful warrant for possession of land. In my judgment Mr White was in that position on 5 February 2019 and, indeed, on 4 December 2018.

Use of Force by Bailiffs and Police to Obtain Possession of Property for the Mortgagee

At common law, as set out in Aglionby v Cohen [1955] 1 QB 558, in reliance upon Hemmings v Stoke Poges Golf Club [1920] 1 KB 720, a landlord who had obtained a possession order was himself entitled to use force, providing that it was no more force than was necessary, to obtain possession of the property in question, even if it was a dwelling house. The same would apply to a mortgagee who had obtained a possession order.

CPR 83.26 means that a landlord or mortgagee who has obtained a county court order of possession cannot enforce it themselves and it may only be enforced by warrant of possession (see Cousins: The Law of Mortgages, 4^th Ed, 26-24 and notes to CPR 82.26 in White Book 2025). However, that does not affect the right of the person entitled to a possession order to authorise someone acting pursuant to a warrant to use reasonable force.

In this case Nat West / RBS had obtained a possession order. The time for Mr White and his wife to give up possession had passed. In those circumstances the mortgagee was entitled to authorise those who acted on its behalf in enforcing the possession order to use force, providing that it was no more force than was reasonably necessary, to obtain possession of the property.

Therefore Issue 1 is not, in my judgment, correctly framed. The warrant for possession of land does not itself give any person acting on behalf of, or with the authority of, the mortgagee, the right to use force. Further, it is not necessary that the authorisation to use force is endorsed on the warrant. It is the possession order that gives the mortgagee the right to authorise those acting on the mortgagee’s behalf, or with the mortgagee’s authorisation, to use reasonable force if necessary.

Therefore, contrary to the apparent understanding of those involved at the criminal trials, it is not the warrant itself that must authorise the use of force by the bailiff or the locksmith, or by the police in support of them. It is the mortgagee who has the power to and must have authorised the use of necessary force in order that the bailiff and / or the police were lawfully able to use force in order to secure possession of the property on behalf of the mortgagee.

That legal position is in my judgment reflected accurately in the content of the form EX96 Notice of Appointment (with Bailiff) for Execution of Warrant of Possession or Delivery:

“● A possession warrant by itself does not give a county court bailiff authority to use force to evict. However, the claimant or the claimant’s agent can authorise the bailiff (and the Police, if necessary) to use REASONABLE force, if that becomes necessary.”

Form EX96 contains a confirmation of bailiff’s appointment to be signed and by the claimant or their authorised representative stating:

“I confirm that I, or my agent, will attend the appointment(s) on the date shown. Any agent attending on my behalf will have my authority to authorise the bailiff (and the police, if necessary) to use reasonable force, if required, to carry out the eviction.”

The Guidance notes on the EX96 state:

“● The entitlement to use force comes from the authority given by the person entitled to possession, and not by virtue of the Warrant of Possession

● Whilst the claimant can authorise the bailiff to use reasonable force to carry out the eviction, they are not empowered to instruct or order the bailiff to use such force, reasonable or otherwise.

…

● If the occupier(s) fail to vacate the premises, the claimant may apply to the court for the occupier’s committal for disobedience of the possession order. (See Bell v Tuohy …)”

In this case Nat West’s legal representative, Ascent Legal, had signed the confirmation on the EX96, prior to the bailiffs’ visit on 5 February 2019, on 24 (or possibly 27 or 29, the writing is not clear) January 2019. Likewise, the confirmation on the earlier EX96 had been signed by Ascent Legal on behalf of Nat West on 27 November 2018, prior to the 4 December 2018 visit.

Form N54 Notice of eviction (in this case dated 14 November 2018) and Form N54A Notice of further attempt at eviction (in this case dated 5 December 2018) state:

“The warrant gives a County Court bailiff the authority to evict and hand over possession of the property (land) to the claimant.”

It is the possession order that gives the authority to the claimant to take possession of the land. The claimant has the power to authorise the bailiff to use reasonable force to evict the occupier. The warrant is issued at the request of the claimant once the time for possession to be given up has passed. The issue of the warrant is the authorisation by the claimant to the bailiff to enforce the possession order. However, reasonable force may only be used by the bailiff (or the police in support of the bailiff) to carry out the eviction if that use of force has been authorised by the claimant (which is done by the completion by the claimant or their agent of the confirmation slip on the EX96).

The Bailiff Manual applicable at the time was that issued by HMCTS - A Procedural Guide for County Court Bailiffs October 2013 v1.1. At section 12, dealing with Warrants of Possession, the Bailiff Manual states:

“Use of force by Bailiffs

You may lawfully use reasonable force to execute a possession warrant – both as to entry and as to the physical removal of occupiers. …

Whenever the use of reasonable force is being considered the police should be notified so that polices officers can be present to prevent any breach of the peace.

…

If an occupier refuses to leave when told to do so by a Bailiff with a possession warrant then that occupier is disobeying a court order and may be committing a criminal offence. … If an occupant refuses to leave, you may use the minimum force necessary to remove them. …

… If there is a known risk of violence or obstruction by an occupier … then the police should have been asked to attend. The police are better equipped than Bailiffs to deal with the disturbances. They have a legal duty to prevent breaches of the peace. They have the legal power to arrest for criminal offences (such as assault or criminal damage). Like you, they are legally entitled to help the landlord use reasonable force to remove an occupier at the claimant/claimant’s agent’s request – even if there is no breach of the peace and no criminal offence. But remember that you have no right to tell the police what to do or how they should do it (and nor has the claimant. …)”

In my judgment the Bailiff Manual accurately reflects the legal position in relation to the use of force by bailiffs or the police to secure an eviction pursuant to a warrant for possession of land.

In this case the claimant’s legal representative had authorised the use of force if necessary by the bailiff and the police on 5 February 2019 in the EX96.

Further, in a letter to the court dated 24 January 2019 Ascent Legal had stated:

“… we authorise, on behalf of our client, National Westminster Home Loans, the bailiff to use reasonable force when execute (sic) the warrant and for the police to be called to assist with the eviction.”

The claimant had instructed AMG Maintenance, which had in turn instructed R&W Services Limited, the company run by the locksmith, Mr Rod Hall, on 30 January 2019 to act on behalf of Nat West/RBS at the eviction on 5 February 2019. Rod Hall was the claimant’s agent at the eviction on that date pursuant to that instruction, as he had been at the previous non-effective bailiff visit on 4 December 2018.

Rod Hall’s MG11 confirmed that, on 4 February 2019, he spoke to a director of AMG Maintenance about the eviction the following day. Mr Hall was told that he had authority to use force to enter the property as he was acting on behalf of the claimant mortgage company.

Further, his unchallenged evidence was as follows:

“On 5th of FEBRUARY 2019 I attended at 29 PARK ROAD in SHEERESS (sic) with Medway Court Bailiffs as well as Police. I saw members of the bailiff team knock on the door repeatedly in order to get Mr WHITE, whom I know to be the occupier of the property, to allow them into the property. They were unsuccessful. After the designated time of 08:00 HRS I then drilled the front door lock. I could see the front door was made from glass and there were looked like metal poles across the door preventing access. I had a discussion with the police who were in attendance and it was agreed the safest and easiest way of gaining entry to the property was by using their method of entry equipment. I effectively was a distraction at the front of the property and they were to gain entry at the side. I began to drill at the front lock of the property and quickly saw the figure of a man, whom I assumed to be Mr WHITE, push a large table against the front door. This figure came flying toward the door with the table and prevented any access, with drill or otherwise, from the front door. Simultaneous to this happening I am aware that the police had now attempted to gain entry from the side door.”

Further, his evidence at trial, which was in my judgment consistent with the body worn video footage, was that he agreed with the bailiff and police at the property on 5 February 2019 that he would drill the lock on the front door of the property as a distraction, whilst the police would knock a panel out of the side door in order to gain entry to the property. In doing so he was authorising the police to use force if necessary to effect entry. It was not suggested to him that he did or said anything that withdrew or varied the authorisation that had been granted by Ascent Legal in the letter dated 24 January 2019 or the EX96 confirmation signed by Ascent Legal for necessary force to be used by the bailiff and the police if necessary.

The claimant has sought to rely upon paragraph 15(1), Schedule 12 of the Tribunals, Courts and Enforcement Act 2007. That provides that warrants of control may be issued by a court to authorise an enforcement agent to enter specified premises to search for and take control of goods. Mr White relies upon this provision for his argument that the warrant in this case had to authorise on its face the bailiff (or the police) to use force to enter the property in order for such use of force to be lawful. However, the law relating to warrants of possession of land are not within the scope of this statutory provision and I find that the law relating to the warrant in this case is as I have set out above.

In the circumstances of this case, therefore, I find that on Issue 1, that both the bailiff and the police had the power to use reasonable force if necessary to gain entry to the property, albeit that was by virtue of the possession order and the authorisation by the mortgagee for them to use force to gain possession of the property, rather than by virtue of the issue of the warrant. No endorsement on the warrant of the authorisation was required.

Power of Police to Enter Property to Prevent Breach of Peace

A police officer has a power at common law to arrest a person who the officer believes will commit a breach of the peace in the immediate future, even though at the time of arrest the arrested person has not yet committed such a breach – R v Howell [1982] QB 416 at 426A-B.

A breach of the peace encompasses an act which is likely to cause harm to a person or his property or puts a person in fear of such harm – Howell at 427E. It can occur on private property – McQuade v Chief Constable of Humberside Police [2002] 1 WLR 1347 at 1357E.

Section 17 of the Police and Criminal Evidence Act 1984 limits the circumstances in which a police officer may enter premises. However, sub-sections (5) and (6) are of relevance in the context of an imminent breach of the peace:

“(5)

Subject to subsection (6) below, all rules of common law under which a constable has power to enter premises without a warrant are hereby abolished.

(6)

Nothing in subsection (5) above affects any power of entry to deal with or prevent a breach of the peace.”

Further, section 3 of the Criminal Law Act 1967 provides:

“(1)

A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders …”

In my judgment, if a police officer honestly and reasonably believed that a breach of the peace was imminent, he was entitled to use reasonable force to enter premises in order to prevent that breach of the peace and to arrest a person for a potential breach of the peace.

Use of Force and Self-Defence

I have already dealt with the position of Mr White in terms of him using force to prevent the eviction.

Since I have found that both the bailiffs and the police had lawful authority to use reasonable force if necessary to gain entry to the premises to evict Mr White, he was not entitled to use force to repel that use of necessary force – see Stroud v Bradbury [1952] 2 All ER 76, at 77.

However, Mr White and the police officers were each entitled to use reasonable force to prevent an unlawful use of force against themselves or others. That is the common law defence of self-defence.

I have already set out the terms of section 3 of the Criminal Law Act 1967.

Further, section 117 of the Police and Criminal Evidence Act 1984 provides:

“Power of constable to use reasonable force

Where any provision of this Act –

(a)

confers a power on a constable; and

(b)

does not provide that the power may only be exercised with the consent of some person, other than a police officer,

the officer may use reasonable force, if necessary, in the exercise of the power”

Offences of Affray, Assault and Battery

Affray (the offence for which Mr White was arrested on 5 February 2019) is a statutory offence. Section 3 of the Public Order Act 1986 provides:

“(1)

A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.

…

(3)

For the purposes of this section a threat cannot be made by the use of words alone.

(4)

No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5)

Affray may be committed in private as well as in public places.

…”

An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force to his body. This is in contrast to a battery, which is the actual infliction of unlawful force on another person – Collins v Wilcock [1984] 2 All ER 374, at 377.

Arrest without warrant

Section 24 of the Police and Criminal Evidence Act 1984 provides:

“(1)

A constable may arrest without a warrant—

(a)

anyone who is about to commit an offence;

(b)

anyone who is in the act of committing an offence;

(c)

anyone whom he has reasonable grounds for suspecting to be about to commit an offence;

(d)

anyone whom he has reasonable grounds for suspecting to be committing an offence.

(2)

If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.

(3)

If an offence has been committed, a constable may arrest without a warrant—

(a)

anyone who is guilty of the offence;

(b)

anyone whom he has reasonable grounds for suspecting to be guilty of it.

(4)

But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.

(5)

The reasons are—

…

(c)

to prevent the person in question—

(i)

causing physical injury to himself or any other person;

…

(iii)

causing loss of or damage to property;

…

(e)

to allow the prompt and effective investigation of the offence or of the conduct of the person in question;

(f)

to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.

…”

The objective standard imposed for the existence of reasonable suspicion is a low one. In Hussein v Chong Fook Kam [1970] A.C. 942 the Privy Council (Lord Devlin) described suspicion as follows (at 948):

“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove.” Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is at the end. When such proof is obtained the police case is complete: it is ready for trial and passes on to its next stage.”

The test for the lawfulness of an arrest in accordance with the provisions of the Police and Criminal Evidence Act 1984 at the time of Mr White’s arrest in February 2019 is set out in Parker v Chief Constable of Essex [2018] EWCA Civ 2788 at [59]:

“(A1)

Did the arresting officer suspect that an offence had been committed? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.

(A2)

Assuming the officer had the necessary suspicion, did the arresting officer have reasonable grounds for that suspicion? This is a purely objective requirement to be determined by the Court.

(1)

Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.

(2)

Assuming the officer had the necessary suspicion, did the arresting officer have reasonable grounds for that suspicion? This is a purely objective requirement to be determined by the judge if necessary on facts found by a jury.

(2A)

Did the arresting officer believe that for any of the reasons mentioned in [s. 24(5) of the 1984 Act] it was necessary to arrest the person in question? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.

(2B)

Assuming the officer had the necessary belief, were there reasonable grounds for that belief? This is a purely objective requirement to be determined by the judge, if necessary on facts found by a jury.

(3)

If the answer to the previous questions is in the affirmative, then the officer has a discretion which entitles him to make an arrest and in relation to that discretion the question arises as to whether the discretion has been exercised in accordance with the principles laid down by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.”

The law on the question of ‘necessity’ in section 24(5) was addressed by Mrs Justice Hill in DE v Chief Constable of West Midlands Police [2023] EWHC 146 (KB) at paragraphs [46]-[49] and [53]:

“46.

The test for determining whether an arrest was necessary under PACE, section 24(4) … had been set out by the Court of Appeal in Hayes v Chief Constable of Merseyside [2012] 1 WLR 517 at [40] thus:

“(1)

the policeman must honestly believe that arrest is necessary, for one or more identified section 24(5) reasons, and (2) his decision must be one which, objectively reviewed afterwards according to the information known to him at the time, is held to have been made on reasonable grounds”.

47.

In Hayes at [32], the Court of Appeal cited a passage in Alexander and others [2009] NIQB 20 [2009] NIQB 20 at [19] to this effect:

“Given the scope of the decision available to a constable contemplating arrest, we do not consider that it is necessary that he interrogate a person as to whether he will attend a police station voluntarily. But he must, in our judgment, at least consider whether having a suspect attend in this way is a practical alternative. The decision whether a particular course is necessary involves, we believe, at least some thought about the different options. In many instances this will require no more than a cursory consideration, but it is difficult to envisage how it could be said that a constable has reasonable grounds for believing it necessary to arrest if he does not make at least some evaluation as to whether voluntary attendance would achieve the objective that he wishes to secure”.

48.

At [33]-[34] the Court rejected the argument that the second-stage of the thought-process required the officer to take into account all obviously relevant circumstances, saying thus:

“That, however, would be to subject the process of arrest to the rigour of a public law reasons challenge. That this is not what the court in Alexander had in mind is clearly demonstrated: the thought-process was aptly described as “at least consider”, and “a cursory consideration” was held to suffice. The correct analysis is contained in the last four lines of the passage cited above. The relevance of the thought process is not that a self-direction on all material matters and all possible alternatives is a pre-condition to legality of arrest. Rather it is that the officer who has given no thought to alternatives to arrest is exposed to the plain risk of being found by a court to have had, objectively, no reasonable grounds for his belief that arrest was necessary”.

49.

In R (TL) v Chief Constable of Surrey Police [2017] EWHC 129 (Admin) at [39], Jay J, with whom Lloyd Jones LJ agreed, described the objective element of the test thus:

“Insofar as the second limb deploys the adverb “objectively”, all that means is that this Court, in the exercise of its judicial function, applies independent, objective standards to its review of the Defendant’s decision: in particular, the reasonableness of the grounds upon which that decision was founded. That review is carried out on the basis of information known to the decision-maker at the time it was made. Finally, the Court does not ask itself whether any police officer could rationally have made the decision under challenge; it directs itself to the particular decision maker and his grounds. In my view, that is what this Court, Lord Thomas CJ presiding, was saying at paragraphs 22 and 23 of its judgment in R (B) v Chief Constable of the PSNI [2015] EWHC 3691 (Admin).”

…

53.

In Commissioner of the Police for the Metropolis v MR [2019] EWHC 888 (QB) at [47], Thornton J emphasised that the test of necessity is more than simply desirable, convenient or reasonable. It is a “high bar, introduced for all offences in 2005 to tighten the accountability of police officers”.”

Detention

A person who has been arrested may be detained by the police in accordance with section 37 of the Police and Criminal Evidence Act 1984:

“(1)Where—

(a)

a person is arrested for an offence—

(i)

without a warrant;

…

(b)

…

the custody officer at each police station where he is detained after his arrest shall determine whether he has before him sufficient evidence to charge that person with the offence for which he was arrested and may detain him at the police station for such period as is necessary to enable him to do so.

(2)If—

(a)the custody officer (“C”) determines that C does not have such evidence before C, and

(b)the pre-conditions for bail are satisfied,

the person arrested must be released on bail (subject to subsection (3)).

(2A)If—

(a)the custody officer (“C”) determines that C does not have such evidence before C, and

(b)the pre-conditions for bail are not satisfied,

the person arrested must be released without bail (subject to subsection (3)).

(3)

If the custody officer has reasonable grounds for believing that the person’s detention without being charged is necessary to secure or preserve evidence relating to an offence for which the person is under arrest or to obtain such evidence by questioning the person], he may authorise the person arrested to be kept in police detention.

…”

Section 40 of the same Act provides that a person detained in accordance with section 37 must have the detention reviewed periodically by an Inspector to ensure that the grounds for detention remain appropriate:

“(1)

Reviews of the detention of each person in police detention in connection with the investigation of an offence shall be carried out periodically in accordance with the following provisions of this section—

(a)

in the case of a person who has been arrested and charged, by the custody officer; and

(b)

in the case of a person who has been arrested but not charged, by an officer of at least the rank of inspector who has not been directly involved in the investigation.

(2)

The officer to whom it falls to carry out a review is referred to in this section as a “review officer”.

(3)

Subject to subsection (4) below—

(a)

the first review shall be not later than six hours after the detention was first authorised;

(b)

the second review shall be not later than nine hours after the first;

(c)

subsequent reviews shall be at intervals of not more than nine hours.”

Although section 40 goes on to deal with circumstances in which a review may be postponed, the Defendant has not suggested that those circumstances apply to this case.

A failure to carry out a review of detention on time does not cause loss, and no more than nominal damages are recoverable, if it is apparent that the decision would have been lawfully taken to authorise detention if it had been carried out on time – R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 2 WLR 671 at [93]-[95].

Malicious Prosecution

The ingredients of the tort of malicious prosecution are summarised in Coughlan v Chief Constable of Cheshire Police [2018] EWHC 34 (QB) at [38]:

“38.

In order to establish malicious prosecution, Mr Coghlan must prove five matters:

38.1

He was prosecuted by the relevant defendant.

38.2

The prosecution was determined in his favour.

38.3

The prosecution was without reasonable and probable cause.

38.4

The prosecution was malicious.

38.5

He suffered actionable damage.”

In relation to who was the prosecutor, DHCJ Pepperall QC in Coghlan said at [40]-[41], [51]:

“40.

The leading case as to who in law is the prosecutor for the purposes of the tort of malicious prosecution is Martin v Watson [1996] 1 A.C. 74. Lord Keith said, at p.86C:

“The mere fact that an individual has given information to the police which leads to their bringing a prosecution does not make that individual the prosecutor.”

41.

He qualified that general position, at pp.86G-87A:

“Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.”

…

51.

…, while the fact that the decision to prosecute was taken by the CPS is not necessarily fatal to a claim that another person was the prosecutor, Wall LJ observed [in the unreported case of Moon v Kent County Council, 15 February 1996]:

“[58] …, I would anticipate that cases in which an action for malicious prosecution would lie following a decision by the CPS to prosecute would be rare.” and

“[59] In my judgment, provided the CPS makes an independent decision to prosecute, and its process is not overborne or perverted in some way by the complainant, the complainant is protected.”

The claimant has described the warrant as being unsealed and has taken issue with its validity. The original warrant is not in evidence. There are two copies of the completed Form N49 in the trial bundle. The better copy at p416 and p418 contains the following information:

“Warrant for Possession of Land

To the enforcement agents of the court

Claimant – National Westminster Home Loans Limited

Defendants – Mr Robert Arthur White, Mrs Irene Florence White

Property address – 29 Park Road, Sheerness, Kent ME12 1UY

Describe the land as set out – On the 13^th day of August, 2018, It was adjudged that the claimant was entitled to possession of 29 Park Road, Sheerness, Kent ME12 1UY And it was ordered that the defendant should give the claimant possession of the said land by 10^th day of September, 2018, And it was ordered that judgment for £171,815.93 …

THE DEFENDANT HAS FAILED TO OBEY THE ORDER AND AT THE CLAIMANT’S REQUEST THIS WARRANT HAS BEEN ISSUED, YOU ARE NOW REQUIRED TO GIVE POSSESSION OF THELAND TO THE CLAIMANT ..

Application was made to this court for this warrant at the hour of ten o’clock on 14 November 2018

Claimant Contact: Ascent Legal [telephone number]

Balance of debt - £173,629.08

Amount of warrant - £7,773.38

Fee - £121.00 …

Total - £7,894.38 .”

The copy of the warrant at p416 shows that it was signed by the enforcement agent to confirm that “possession obtained and given to claimant”. It was also signed “(for the) claimant” under the words “I acknowledge having received possession of the land described in this warrant”. Handwritten entries include “POSS 4/12/18”, “HEARING 3/12 DISMISSED” and “Appt 5.2.19 0.00”.

Next to the details of the County Court at Medway is a circle, with the words “THE COUNTY COURT” running inside it, and a crown symbol in the middle of the circle, over the word “seal”. That is the court stamp. The stamp on the warrant is the standard stamp used by the county court office in order to seal a warrant. I find that, given that the stamp is printed is slightly off centre, the inked stamp was applied by a court officer over the pre-printed word “seal” beneath it on the original warrant.

The signatures on the warrant are illegible. However, I had evidence from Michael Simpson, a bailiff, which was not challenged, that the warrant in this case was signed by him as the enforcement agent and Mr Hall, the locksmith for the claimant, Nat West/RBS, confirmed that he signed the warrant on behalf of the claimant.

N49 was and is the appropriate form of warrant for the enforcement of a possession order for land, whether obtained by a landlord or a mortgagee. Further, there was no monetary limit that meant that a county court bailiff could not enforce such a possession order. If there were, county court bailiffs would be prohibited from enforcing the overwhelming majority of mortgage possession orders, and many landlord and tenant possession orders.

In the circumstances, I find, on the balance of probabilities, that the warrant in this case was validly issued and sealed by the court and I reject the suggestions by Mr White that there was any technical defect in the warrant itself. Further it was a warrant that was appropriately issued in the county court that made the possession order and which could be enforced by county court bailiffs.

In order to answer many of the Issues in this case, it is first necessary for me to set out the evidence on the key factual matters that require determination, to explain my assessment of each of the witnesses and to come to conclusions on those factual matters. I leave aside for the moment matters that are not purely factual determinations, such as whether or not an act or belief was reasonable.

In my judgment the key facts that I must determine on the issue of liability in this case are:-

What happened when bailiffs attended the property on 4 December 2019

Mr White’s evidence was that there were 5 individuals, who were friends of his, present outside the property on 4 December 2018 when the bailiffs attended. One of the persons present was a man named Tobe Hayden Leigh. They were there to speak to the bailiffs and to support Mr White, but not to intimidate or to prevent a lawful eviction happening. Mr White alleged that the bailiffs did not identify themselves and did not show the warrant. One of them took out a folded piece of paper and then put it away again. In his oral evidence it became clear that in his witness statement he had been mistaken as to which bailiff was which. Having seen Michael Simpson at the trial, Mr White confirmed that Mr Simpson was the one who took out the folded paper and put it away again. Steve Elcombe was the one who was wearing an outdated uniform with HMCS, rather than HMCTS, on it, as he had described in his statement. He did not believe that the bailiffs had the right to use force to carry out the eviction as he subsequently wrote in his letter to the court. He accepted, however, that his letter had said that the authority to use force came from the person entitled to possession and not from the warrant itself. He had not seen the locksmith, Mr Hall, there on 4 December 2019 and he did not know that the locksmith would be the agent of the mortgagee. He relied upon the video footage that had been taken on that date in support of his contention that only 5 people were present.

Michael Simpson’s evidence in his MG11 dated 24 June 2019 was that he and his colleague were unable to carry out the planned eviction on 4 December 2018 as there were 15 unknown males with Mr White preventing them from entering. Those men were also filming the bailiffs, which he said was intimidating. They therefore left without attempting to evict Mr White on that date. When he gave oral evidence, Mr Simpson said that there were 10-15 people present and then he said that there were about a dozen and that there were a minimum of 10 people. After he arrived, he waited for Mr Elcome, the bailiff manager to arrive. He said that the men were not physically aggressive, but they were intimidating. He explained that he had not produced the warrant because it was only the mortgagor who was entitled to see it and Mr White had not identified himself as the defendant in the proceedings. He and Mr Elcome had identified themselves as bailiffs. He could not recall if they had refused to give their names, but if people are being threatening or intimidating then they will sometimes just give the base court and bailiff number. They did not call the police because there was no point. He said that, unless there was a punch up, or an immediate threat to life, the police would not attend, because there was the option of the bailiffs withdrawing safely, which is what they did.

Mr Simpson was shown the mobile phone footage taken at the scene by one of the group, but he said that it showed only a narrow view, and not the whole scene. He said that there were other people scattered around the driveway who were moving around and who were not captured on the video.

Rod Hall, the locksmith, said in his MG11 dated 29 August 2019 that he had been present on 4 December 2018 and that the attempt to repossess the property was unsuccessful due to aggression and the amount of people present at the property. He said that there were around 15 people present who displayed intimidating behaviour, some were wearing masks and they were recording them. In his oral evidence he confirmed that he was the man in the second piece of footage taken on that day. He was shown talking to Mr Simpson whilst Mr Hall was seated in his van. He did not leave the van on that day, having been told to stay in it. He had attended as the agent of Nat West/RBS. He confirmed that there is never anyone actually from the bank present at such an eviction.

The first video shows the two bailiffs being spoken to by the gates by a man in a cap who is joined by another man. There is then a conversation with an unseen person who is not shown. Mr Elcome is engaged in discussion with the man in the cap and then another man starts to say that a person is entitled to use force. A third man joins in. The man in the cap continued to explain what he says the law was, which was that the eviction could not be carried out using force. The man in the cap, who I recognise as Tobe Hayden Leigh from his earlier involvement in this case, and from hearings attended by him in mortgage proceedings against him, was asserting that the warrant had to be signed to authorise the use of force. Both Mr Elcome, who was taking the lead, and Mr Simpson, remained calm and professional. None of the men shown in the video were physically aggressive, but what they were saying, and how they were saying it, made it clear that they were not intending to permit the eviction to take place without resistance. The camera remains in portrait mode, showing only a narrow part of the scene. Mr Elcome said that he did not need to give his name when it was demanded and his identification was questioned by the men present, with their voices becoming heated. Mr Elcome remained calm, but firm. Mr Simpson stood watching to one side. This continued for a period of approximately 9 minutes before the men said that the bailiffs should call the police. The bailiffs then left. In the second video Mr Simpson is leaning into a van where Mr Hall is sitting, with Tobe Hayden Leigh standing close by saying that the warrant had to be signed by a judge.

What information did Kent Police have in advance of the 5 February 2019 attendance at the property and why were they in attendance

On 18 January 2019 Mr White had submitted the crime report to which I have already referred. However, none of the police officers involved on 5 February 2019 gave evidence that they were aware of that report or its contents.

Prior to 5 February 2019, he said in evidence that he thought it was in late December 2018 or early January 2019, Mr Simpson had submitted the request for assistance with the eviction to Kent Police. I have already set out the content of that request. PS Balment said that he was emailed the tasking document, containing details of Mr Simpson’s request for assistance, prior to 5 February 2019.

On 5 February 2019 a briefing was held at the police station before the attendance at the property. That briefing was attended by Mr Simpson, Mr Elcome and other members of the bailiff team, but not Mr Hall, the locksmith, who they met at the property. Mr Simpson said that Mr Elcome did most of the talking at the briefing, but he would have shown the paperwork, including the warrant and the EX96, to the police. He understood that the paperwork authorised the use of forced entry. He could not recall if the possibility of a breach of the peace was discussed.

PS Balment said in his witness statement for these proceedings that the police were told at the briefing that, on the previous occasion, the bailiffs had encountered a group of approximately 12 people who had attended at Mr White’s request. They claimed to be ‘freeman of the land’ and he understood that they had blocked the bailiffs from executing the order. He said that he saw the warrant and the EX96, with the statement in bold concerning the use of force. He understood from that the basis on which the police were authorised to use force. PS Balment said that the potential for a breach of the peace was discussed, because that was the only reason for the police attending the eviction. The bailiffs feared the same thing happening as had happened on 4 December 2018.

The other police officers who attended the briefing and went to the property on 5 February 2019 did not examine the paperwork themselves. They said that they relied upon PS Balment telling them that the warrant was valid and that they were authorised to use force. They were aware of the previous visit by the bailiffs in December 2018. PC Shilling said that she understood that the police were going to attend primarily to prevent a breach of the peace. That was also the evidence of PC Dunn.

What discussion was there between the locksmith, the bailiffs and the police before any force was used to enter the property?

I have already set out Mr Hall’s evidence about this when dealing with Issue 1 earlier in this judgment.

Mr Simpson and the police officers all said that there was no discussion of tactics before they got to the property. They met Mr Hall, the locksmith, at the property.

According to Mr Simpson, Mr White had sworn at the bailiffs through the window. He had barricaded the front door. Mr Simpson thought that he was prepared to use any means to prevent the eviction. December 2018 was intimidating, he said, but in February 2019 he actually felt threatened by Mr White’s attitude and the way he shouted at them.

Mr White said in his evidence that he had barricaded the front door and that he had no intention of complying with the possession order because he was still in dispute with Nat West / RBS. Mr White said that he refused to allow peaceable entry on 5 February 2019 and he closed the window. He pushed a table against the front door.

PC Vencius said that, when he arrived with the other police officers and the bailiffs, they met the locksmith. The locksmith tried the front door handle, but said it was blocked from the inside. PC Vencius could see metal barriers placed across the front door. Mr White opened the bedroom window briefly. Another police officer asked him whether he would open the door and let them inside. Mr White said that he would not and closed the window. Later he said that the side door was also barricaded with metal bars.

PS Balment also described Mr White making it clear that he was not going to cooperate when he gave evidence at Mr White’s trial in 2022.

PC Shilling also described Mr White at the window refusing to open the door.

PC Vencius and PC Shilling had then both activated their BWV. That showed that the locksmith established that the front door was barricaded. Then the locksmith said that the police should smash the “back one” whilst he drilled the lock out. Mr Simpson understood that Mr Hall was providing a distraction at the front door whilst the police would enter by the side door. PC Dunn and PS Balment then went to the side of the house and, after a brief discussion between the two of them about how to get in through the door, which had a glass top panel, PC Dunn took out the bottom panel of the side door using an ‘enforcer’ or ramming tool.

What did the police officers believe was the basis on which force could be used by them to enter the property?

PS Balment said that he understood that the warrant and the associated paperwork, including the EX96, authorised the police to use force. Although it was not in his original MG11, he also said that at the time force was used to enter the property he feared an imminent breach of the peace. That was what he had said at Mr White’s first trial, and it was included in his second MG11 in September 2019, following that trial being aborted.

PC Dunn gave similar evidence. He relied upon what PS Balment had told him about the warrant and the paperwork. He too had not mentioned a breach of the peace in his original MG11, but he included it in his second MG11, following the first criminal trial being abandoned.

PCs Shilling and Vencius relied upon what PS Balment had said about the warrant authorising the police to use force.

What was Mr White’s state of mind and intention with respect to the further attempt at eviction that took place on 5 February 2019?

I have already set out what Mr White said in his crime report on 18 January 2019 and in his letter to the court on 21 January 2019.

Further, I have referred to Mr White posting on Facebook on 18 January 2019, which is Appendix 1 to this judgment. Asked about that post, he denied that he was intending to use force if an eviction was attempted and he said that the post was a joke. He did not agree that he was spoiling for fight. He said that he was playing a game to frustrate the court process. He said that that was acceptable because that was the way that he was. In his evidence and questions he repeatedly challenged the validity of the court notices, orders and process. He spoke of Nat West stealing property.

In his witness statement he said that, on 5 February 2019, when he saw police officers and other individuals approaching his property, he anticipated trouble. He secured his front door to “prevent unlawful entry”. He went upstairs, opened a window and spoke to a bailiff he recognised from the December visit. The bailiff asked if he would let them in and he refused before closing the window. He tried to further secure the front door and he then heard the attempt to force the side door.

In his oral evidence he said that he was pushing a table against the front door when he became aware of what was happening at the side door. Despite having read the notice of eviction, he said that he did not think that the locksmith, the bailiffs, or the police, had the right to drill the locks or to use force to enter. He had grabbed the wooden implement when he heard noises at the side door. Later in his evidence he said that he did not intend to use that object unless he was attacked. He did not expect the police to force entry or to remove him from the property, unless he committed a crime or a breach of the peace. No matter who it was at the side door, he said that they were not allowed to smash it in. He said that he feared that he was going to be beaten up or attacked.

Why did PC Dunn use force to remove the bottom panel of the side door?

PC Dunn’s evidence was that he used force to remove the bottom panel of the side door because of his understanding that the police were authorised to use force in accordance with the warrant and supporting documentation and because that use of force had been agreed with the mortgagee’s agent, Mr Hall, because of Mr White’s refusal to cooperate. PC Dunn gave evidence that at that time he feared an imminent breach of the peace given all of the circumstances, including in particular what he knew of the events on 4 December 2018, and the attitude that Mr White had displaced on that day, although that was not mentioned in his original MG11. He said that he used force to allow PS Balment to enter the property so as to prevent a breach of the peace and to minimise the possible risk of injury or disturbance occurring, as he believed would have happened if the locksmith or the bailiffs had tried to enter first.

What was Mr White doing when PS Balment put his head and upper body through the hole in the side door?

There is no BWV footage showing what PS Balment saw when he put his head and shoulders through the hole in the door. He crouched down and said ‘hello’ before crouching further and putting his head through the hole.

The BWV from outside showed that his head was through the door for only a moment before he quickly retreated. He said ‘he has just swung at me with a sledgehammer’ or something similar.

Mr White said that he had hold of the wooden implement when he saw PS Balment’s police hat coming through the door. He had said in his statement that he had grabbed the item that he called an ‘ornament’ that was hanging by the front door when he heard a loud crashing sound coming from the side door.

He denied that he had swung the implement at PS Balment’s head. He agreed that the BWV recorded PS Balment then saying ‘you’ve just done that to me’ but that was not because he had swung the implement. He said in his statement that he was in shock and just told the officer to get out as no one had the authority to break in and PS Balment retreated.

PS Balment’s account in his MG11 on the day of the incident was that, as he started to go through the door, he saw Mr White holding what looked like a sledge hammer. He told Mr White that he was a police officer and told him to put the weapon down. Mr White said ‘fuck off’ and swung what PS Balment described as a weapon. Mr White was aggressive, his face was contorted and his teeth were gritted. He swung the item towards him on two occasions, narrowly missing PS Balment’s head. PS Balment therefore withdrew. Mr White was showing a high level of aggression and was not calming down.

In his oral evidence PS Balment said that he feared for his safety and he feared suffering significant injury when Mr White swung the wooden implement towards him. He was in a very vulnerable position, particularly his head. He clearly saw Mr White swing the bat towards him twice in quick succession.

PC Dunn confirmed hearing PS Balment shout something along the lines of ‘He’s come at me with a sledgehammer’ when he quickly retreated having started to crawl through the door head first. When PC Dunn himself then saw Mr White, the claimant was irate, not listening to commands and he would not put the weapon down despite being ordered to do so.

PC Shilling was on the path at the side of the house with her BWV on. She described in her oral evidence having worked with PS Balment for many years. He was very robust and she had never seen him recoil or react in the way that he did when he put his head through the hole in the side door and then quickly retreated. She formed the impression that something serious must have happened.

What did PS Balment believe that Mr White was doing when he put his head and upper body through the hole in the side door?

As set out in relation to vii), PS Balment said that he believed that Mr White was swinging the wooden implement towards his head and that he was at risk of suffering serious injury as a result of his head being struck. He thought that the item being held, which he thought was a sledgehammer, was a weapon that could cause substantial injury and harm.

He said that he believed that Mr White had swung the implement at him twice in an attempt to strike him and cause injury. He said that he was terrified and, even though he had dealt with the London riots and other incidents, this was the most at risk he had ever felt. He was in an extremely vulnerable position and he was ill-equipped to deal with a male holding a weapon.

Mr White denied that he had acted in that way and he denied that PS Balment could have genuinely feared for his safety because he had not swung the wooden bat towards the officer’s head.

Why did PC Dunn deploy the taser for the first time against Mr White?

The BWV records PC Dunn crouching down and instructing Mr White to “put that down now” several times. He informed him that he was a taser officer. After instructing him again to put ‘it’ down, PC Dunn then called ‘taser’ and the sound of the taser can be heard.

Mr White’s evidence was that, after PS Balment retreated, he tried to put the panel back in the door. He agreed that, despite being told to drop the implement, he did not. He was defending his property and himself. He intended to stop them coming in unlawfully. He did not think that the officers would think that there was a significant risk because he was just holding the wooden implement. He denied that he was swinging it.

PC Dunn’s evidence was that, despite him telling Mr White to put the object down, he did not. He saw Mr White swing it at the door, where the officers were, several times. He was not letting up. He was irate and not listening to commands. PC Dunn said that he thought that he and PS Balment were in imminent danger. He drew his taser. He red dotted Mr White on his chest and shouted ‘taser officer put it down now’, but Mr White continued to swing the object like a man possessed. He ignored a further instruction to put it down and PC Dunn felt that he had no choice but to discharge his taser, which he did. He shouted ‘taser, taser’. At the time he did that he said that he honestly believed that Mr White had committed the offence of affray because of what he believed Mr White had done as a result of PS Balment retreating, saying that ‘he came at me with a sledgehammer’, and the fact that Mr White was still holding the implement. PC Dunn said that at that point he needed to arrest Mr White.

He explained that he had not used pava spray because it sometimes did not work and it is usually used outside. If it had been used inside the property, it would have incapacitated everyone else, not just Mr White.

What was Mr White’s reaction to the first taser?

PC Dunn said that he knew immediately that the probes had not entered Mr White’s skin, because the first taser did not control him. In his MG11, he referred to Mr White wearing quite thick clothing and he suggested that was the reason that the first taser probes did not penetrate his skin.

Mr White agreed that the first taser had not had an effect and he had not dropped the implement. He had not expected PD Dunn to fire the taser.

Why did PC Dunn deploy the taser for the second time against Mr White?

PC Dunn said that, because the first taser did not have an effect, he used the taser a second time, this time aiming at Mr White’s leg because he had thick clothing on around his centre. He said in his oral evidence that he still believed that firing twice was necessary because, although the door was a barrier, Mr White still had the implement and he would not put it down. He believed that he had committed affray and he needed to get into the property to arrest him.

Mr White agreed that he was still holding the implement and did not drop it despite the first taser.

What was Mr White’s reaction to the second taser?

According to PC Dunn the second taser had some effect. It did not make Mr White go rigid and fall over. However he did stumble and the officers entered the kitchen.

Mr White said that the second taser had some effect. He was still upright, but he fell back against the kitchen counter. He still had hold of the implement however.

Why did PS Balment punch Mr White to the head?

After the second taser, PS Balment went into the kitchen, along with PC Vencius and PC Shilling. The BWV is dark and very confusing. I did not find it easy to work out exactly what it showed. However, a fist can be seen punching Mr White to the head. PS Balment said in evidence that he punched Mr White. As he did so, he said “Don’t hit officers with a bat again”.

PS Balment gave evidence that, when he punched Mr White, PC Vencius and he were struggling to restrain him and Mr White still had hold of the implement. They needed to restrain Mr White to prevent him causing harm to the police officers and to arrest him. He did not consider using pava spray because of the enclosed environment.

PC Vencius said that, when he entered the kitchen, Mr White was still holding the wooden bat. He grabbed Mr White and told him to get down on the floor and he pushed him. PS Balment came and helped him get Mr White to the floor. He feared for his safety and the safety of his colleagues as Mr White demonstrated a significant amount of aggression and he still potentially had a weapon in his hand. He saw PS Balment punch Mr White and they managed to push him to the table. PC Vencius then saw that Mr White’s hands were empty. He and PS Balment took him to the ground. They were joined by two other officers and were able to fully restrain him.

In his oral evidence PC Vencius said that, when he entered the kitchen, Mr White was coming towards him with a big wooden bat, so he felt threatened. When he told him to get on the floor and then pushed Mr White, Mr White tensed his muscles and he was actively resisting. It was only with PS Balment’s assistance that he got Mr White under control.

Mr White put to PC Vencius that, at 3.21 on his BWV, Mr White could be seen holding the wooden implement and handing it to the officer. PC Vencius did not agree. Further, PC Vencius did not agree that PS Balment was angry when he punched Mr White.

PS Balment’s evidence was that he used two “distraction punches to the claimant’s head”. This is a trained technique and he relies upon material from the College of Policing dealing with ‘strikes using the arm and hand’ in support of the use of the technique when appropriate.

PS Balment explained that, despite the taser, the officers still needed to restrain Mr White so that he could be arrested. He feared that he and the other officers were at risk from Mr White. He did not use his asp (baton) because that could cause serious injury. He judged that using an unarmed defence tactic was the minimum use of force in order to achieve the lawful objective of arresting Mr White for affray.

PS Balment denied that he was frustrated or angry. Mr White posed a considerable risk when he punched him as Mr White had a weapon and he was actively resisting uniformed officers. It was possible that he had other weapons or that there were other people in the property.

According to Mr White, PS Balment punched him in anger. He did not accept that PS Balment was fearful of himself or his colleagues being injured.

The BWV records PS Balment shouting at Mr White as he punched him and then arrested him.

Did PS Balment suspect that Mr White had committed the offence of affray when he arrested him?

PS Balment’s evidence is that he did believe that Mr White had committed the offence of affray when he arrested him. That was based on what he said Mr White had done when he swung the wooden implement towards PC Balment’s head with the intention of striking PS Balment. He said that he believed that a person of reasonable firmness present at the scene would fear for their personal safety.

Did PS Balment inform Mr White of the reasons for his arrest and did he caution him?

On the BWV PS Balment can be clearly heard saying ‘you are under arrest for an affray.’ He is then given the caution and told not to try and attempt to hurt an officer again. Mr White accepted in his evidence that he had been informed of the reasons for his arrest and he did not suggest that he had not been cautioned.

Why were handcuffs applied to Mr White?

PC Dunn said in his witness statement that Mr White remained in handcuffs until he reached the custody suite because he remained a threat to officers and to himself.

PC Vencius said in his oral evidence that the handcuffs remained on because of Mr White’s violent actions in failing to comply with police orders and having allegedly swung an implement at his sergeant. He had felt threatened when Mr White had come towards him with the implement when he entered the kitchen. On the floor Mr White was violently resisting and tensing his muscles. Handcuffs were applied to stop him escaping.

PC Shilling said that the handcuffs were not removed because Mr White continued to present a threat.

Why were the handcuffs not removed from Mr White (save for being moved from the rear stack to the front stack position at the hospital) before he reached the custody suite?

I have already largely covered this in relation to the previous question. PC Dunn agreed that Mr White remained in handcuffs when he was taken from the property first to Minster Hospital and then to Medway Hospital and, after he refused treatment for a cut to his head, to custody. He said that that was because of the earlier situation and how combative Mr White had been. Mr White refused to speak to or engage with the officers and so they were unable to assess whether the risk had reduced. The handcuffs were therefore not removed because the hospitals were public places. However, when Mr White complained of discomfort, they were moved from the rear stack position to the front stack position.

Why was Mr White detained for the period that he was?

The custody record logs that Mr White was arrested at 08.00 on 5 February 2019. There was a delay in his arrival at the custody suite, because he was taken by officers to hospital to be checked since he had been tasered. He also had a cut to his head.

After Mr White refused treatment at hospital, he was taken to Medway Police Station, arriving at 13.12. His detention was authorised by PS Rory O’Connor, the custody sergeant, at 13.16. The unchallenged evidence of former PS O’Connor is that he believed it was necessary for Mr White to be detained in order to secure or preserve evidence and to obtain evidence by questioning.

The unchallenged evidence of DC Victoria Bell and PC Nicholls was that there was a delay in investigating Mr White’s case due to another detainee, referred to as prisoner X, having mental health issues and problems. When they started their investigation, they had to download and consider the body worn video footage and the witness statements of five police officers. An interview plan was then prepared and the interview by PC Nicholls commenced at 18.29. It concluded at 18.38, the claimant having refused to answer questions, and he was returned to his cell at 18.58.

The officers then prepared a charge file to submit to the CPS, which was then considered by their sergeant, before being submitted to the CPS at 20.50. A charging decision was received at 22.01, which was that Mr White was to be charged with two offences of assaulting an emergency worker. The officers uploaded the information onto the system and then joined the queue to speak to the custody sergeant. Mr White was brought before the custody sergeant and he was charged and bailed at 22.38. He was then released from custody.

Since the statements of the officers involved in Mr White’s detention were agreed, there was no challenge to the reasons given by the defendant’s witnesses for the timeline of his detention at the police station.

Were reviews of Mr White’s detention carried out on time and, if they were not, did it make any difference to the length of time for which he was detained?

Temporary Inspector Adam Duke reviewed Mr White’s detention at 19.20 on 5 February 2019. He retrospectively recorded his review at 19.52, stating that he was authorising Mr White’s continued detention to obtain evidence by questioning or other means. He explained in his agreed statement that this was a ‘drop-down’ option on the system and, in this case, ‘other means’ related to the need for the police officers to obtain a charging authority from the CPS. The claimant’s further detention was authorised by him to enable that to be done. T/Insp Duke explained in his statement the procedure for carrying out such a review.

Since Mr White’s detention had been authorised at 13.16, the review should have taken place by 19.16. The review was therefore undertaken 4 minutes late.

Did any police officer make a statement that he or she knew to be untrue concerning the events of 5 February 2019?

All of the officers, in particular PS Balment and PC Dunn, denied making any statement that they knew to be untrue about the events of 5 February 2019.

Mr White alleged that officers had lied and, in particular, that PS Balment had lied when he alleged that Mr White had swung the implement at his head when he first put his head through the hole in the door and that PC Dunn lied when he said that Mr White was swinging the implement before PC Dunn discharged his taser. Mr White said that he had not behaved in a way that would have caused any officer to fear for their safety.

Was the independence of the Crown Prosecution Service in deciding to prosecute or to continue to prosecute Mr White overborne or perverted by the actions of one or more of the police officers?

Although Mr White was originally charged with two counts of assaulting an emergency worker, that charge was changed to one of affray at a hearing at the Crown Court prior to the commencement of the first trial. The decision on the correct charge would have been one for the CPS, although the judge may have expressed a view.

At the first trial PS Balment gave evidence and he was questioned by Mr White about the warrant, with Mr White putting to him that the warrant itself did not refer to the use of force and PS Balment referring to seeing an A5 booklet. That was presumably a reference to the EX96, but that had not been disclosed by the Prosecution. In the absence of the witness and the jury, the trial judge told the prosecutor that it was for the Crown to produce the warrant and show that it was valid. The EX96 was then produced by the Prosecutor and Mr White said that he had not seen it. The Judge then referred to the fact that it required the claimant or the claimant’s agent to authorise the bailiff and the police if necessary to use reasonable force and the Judge asked where the authority was. The Judge did not accept that such authority could be inferred. He pointed out that there was no evidence from Ascent Legal, the claimant’s agent, although the letter authorising the use of force from Ascent Legal was produced to him later in the hearing. He was told by the Prosecutor that the bailiffs had declined to produce the original documents. The court was relying only on photographs, which were difficult to read. Later the judge said that he would be surprised if it was just up to the claimant, without the court being involved, to decide whether force should be used to secure possession. Neither the Judge nor the Prosecutor referred to the fact that the claimant’s agent at an eviction was the locksmith, who was not a witness at the first trial.

The Prosecutor made submissions concerning a possible lawful basis for police using force to enter the property to prevent a breach of the peace. The Judge was concerned that, since that was not the basis on which the prosecution had been framed, it might amount to an abuse of the process if that were how the prosecution now put their case.

Ultimately the Judge decided that the first trial could not continue and he discharged the jury. There was then a further hearing some weeks later, by which time the further statements of PS Balment and PC Dunn had been obtained in which they said that they use force to enter to prevent a breach of the peace. PS Balment had said in evidence at the first trial, after referring to the warrant:

“To use force, the power that I was using, is common law.”

PS Balment also said in answer to a question in cross-examination at the first trial:

“I believed that there would be a breach of the peace if the bailiffs entered without the police”

After further discussion between the Judge and the Prosecutor, the Prosecutor said that they would be in difficulties in proceeding on the basis of the use of reasonable force in the execution of the warrant and rather the Prosecution relied upon the apprehended breach of the peace. It was also the Prosecution case that, even if PS Balment was acting unlawfully, that did not entitle Mr White to swing a weapon at him.

The trial judge ruled that it was not an abuse of the process for the case to proceed, but that the Prosecution could not rely upon the warrant to legitimatise PS Balment’s decision to force entry. The Prosecution case was to proceed on the basis of “the breach of the peace argument and the trespasser argument.”

However, by the end of the second trial, for reasons that are not clear, the Prosecutor (not the same counsel as at the first trial) had conceded that the police action in going into the house was unlawful, and that concession was the basis of the Judge’s summing up and directions to the jury. Mr White was acquitted.

Robert White

The claimant was born on 7 July 1959. He was therefore aged 59 on 5 February 2019.

In the hearings before me, both pre-trial and at trial, Mr White has generally conducted himself appropriately. At the pre-trial review and the trial he benefitted from having the obviously wise counsel of his McKenzie Friend, Trevor Young, who intervened on occasions in a discrete way to ensure that Mr White did not act contrary to his own best interests.

That is in contrast to the position earlier in the proceedings when Mr White was purportedly assisted by Tobe Hayden Leigh, who I ultimately barred from acting as his McKenzie Friend for the reasons that I gave in my judgment dated 6 December 2024. I will refer to him as Tobe, since he objects to being called Mr Leigh, and Tobe is the name used by Mr White.

Unfortunately, Tobe appeared, in the footage on 4 December 2018, and at pre-trial hearings and in the course of the trial, to have a great deal of influence over Mr White. That was, in my judgment, unhelpful to Mr White, because my perception was and is that Tobe was using him to further his own campaign of disrupting civil justice in Kent, in particular in so far as it relates to mortgage possession claims. Tobe has continued to be involved with the claimant, and he attended the trial. I had to warn him about his conduct on more than one occasion.

Unfortunately, I was left with the distinct impression that, although he was not permitted to act as his McKenzie Friend, Tobe continued to be a driving force behind Mr White’s claim. That was particularly clear when, towards the end of the case, Tobe interfered in the discussions between Mr White, his McKenzie Friend, Trevor Young, and Defendant’s counsel in a way that was, I judged, seeking to derail matters that had been agreed.

Mr White himself has adopted “freedom of the land” language and affectations on occasions throughout this case, in particular in his letter to the court on 21 January 2019. In my judgment, he is someone who has been influenced to adopt those beliefs and presentations by Tobe and others (including another observer who I had to exclude from the court in the course of the trial). In my judgment, Mr White had, by late 2018 and early 2019, adopted a set of beliefs which meant that he did not recognise the authority of the court or the validity of court orders. He was taken in by the “freeman of the land” mantras and I conclude that he genuinely thought that he could resist his eviction from the property, including by the use of force. However, that was plainly not an objectively reasonable belief.

That erroneous belief system of Mr White, which is reflected in his correspondence with the court, and with the police, prior to 5 February 2019, and his actions on 4 December 2018 and 5 February 2019, is in my judgment an important factor when it comes to my findings on what happened on those dates. For example, when he posted on Facebook on 18 January 2019 that he was intending to use “reasonable force” against the bailiffs, in my judgment that was not mere bravado, but it reflected his genuine intentions. Likewise his barricading of the front door and him telling the bailiffs that he would not cooperate in the eviction on 5 February 2019.

Mr White was sometimes careful in the way he answered questions, which I find was an attempt by him in order to avoid making admissions, whilst not telling an outright provable lie if he could avoid it. That approach by him to answering questions is best illustrated by what happened at the pre-trial review, when I had dealt with the Defendant’s application to admit in evidence his previous convictions. One of Mr White’s arguments against the admission of the convictions had been as follows:

“CLAIMANT: Well, I admit I have got a long history of convictions and that, yes. Whenever I have done wrong, I have always held my hands up. That is why I am fighting this all the way. It will be six and a half years by the time we get to the trial.”

I sought to clarify what he was saying and the following exchanges took place:

“JUDGE BROWN: So, you say you have always pleaded guilty.

CLAIMANT: Sorry?

JUDGE BROWN: You have always pleaded guilty, rather than being convicted after trial.

CLAIMANT: If I have done wrong then yes, yes. That is why I had two trials by jury, obviously got acquitted eventually after three years.”

A little later there was this exchange:

“JUDGE BROWN: But you say all of the convictions that are listed in the defendant’s application ---

CLAIMANT: Sorry?

JUDGE BROWN: All the convictions that are listed in the defendant’s application, you say you pleaded guilty to because you admitted when you had done wrong.

CLAIMANT: Ones that I was convicted of, yes.”

I had already given permission to the Defendant to rely upon the fact of Mr White’s convictions for the reasons that I gave on 2 July 2025. However, following the exchange set out above, which took place after I had given my ruling, Mr Fortt informed me that the Defendant would be applying to put in evidence the fact that Mr White had in fact pleaded not guilty and had been convicted after a contested trial in the case of some of his convictions. At that point Mr White said:

“CLAIMANT: Can I just say something now? I did not say I have always pleaded guilty. I said I have always held my hands up if I have done wrong.”

What Mr White said initially to me at that hearing, which was reflected in what he said in the last extract, was, in my judgment, deliberately worded to give a misleading impression. His answer in the second exchange was not so careful and it was more straightforwardly untrue. That is because there are two convictions where Mr White pleaded not guilty, but was convicted after trial. They were convictions for the offence of racially aggravated common assault on 23 May 2007 and for the offences of using violence to enter premises and of pursuing a course of conduct amounting to harassment on 25 May 2022.

At trial Mr White explained why he did not consider that he was guilty of either of these offences, as well as the mitigating circumstances surrounding them. However, the important point is that, in my judgment, he deliberately chose his words in order to give me the misleading impression that he had never been disbelieved on his oath or affirmation. That is, in my judgment, damaging to his credibility as a witness.

Further, at trial Mr White did not challenge the evidence of the Defendant’s witnesses, supported by the BWV evidence, that he had piles of house bricks and bowls of golf balls in the property on 5 February 2019. The Defendant’s case was that these were there for Mr White to potentially use as weapons against the bailiff or the police, in order to repel them when they tried to evict him. Mr White’s explanation for those objects being present was that he had the bricks in his house as “ornaments” and that he had a large bowl of golf balls because he played golf. In my judgment those were answers that lacked any plausibility and were an example of Mr White being prepared to lie, even when it meant saying something that was plainly nonsense.

There was no dispute that Mr White had a long wooden object in his hand when PS Balment put his head through the gap in the side door and when PC Dunn tasered him. That object is shown in a police photograph, which is Appendix 2 to this judgment. It bears some similarity to a crude hockey stick. At one end of the shaft the wood is slightly thicker than the shaft. That appears to be the hand grip. The long wooden shaft becomes gradually wider along its length, moving from the hand grip. At the other end of the shaft, the wood is angled at approximate an 120 degree angle to the shaft to form the blade, to use hockey stick terminology. It has a rough, home-made appearance, although the photograph is not particularly clear.

In evidence Mr White described this wooden implement as an ornament. That was not, in my judgment, a description that he could, or did, genuinely believe described that object. On the contrary, like the bricks and golf balls, it had the appearance of an implement that was intended to be used as a weapon if Mr White deemed it necessary to use it to prevent the eviction.

So far as the events on 5 February 2019 are concerned, Mr White was interviewed about the allegations made by the police officers about his conduct on that day, including, in particular, the allegation that he had swung a large implement towards PS Balment’s head as the officer put his upper body through the bottom panel of the side door of the property. However, Mr White declined to answer any questions in interview. That was, of course, his right. However, it meant that the first account from him did not come until after he had seen the original statements of the police, bailiffs and locksmith, and it came after he had viewed the body worn video. He therefore had the opportunity to tailor his account to fit the evidence.

Ultimately, having seen and heard Mr White give evidence, I came to the firm conclusion that I should treat his evidence with caution, save where it was supported by other evidence, such as the body worn video footage.

In reaching that conclusion I have left out of account the criminal record of Mr White, save indirectly in relation to the exchange about pleas of guilty to which I have already referred.

However, in reaching my findings on the facts of this case, in my judgment Mr White’s criminal convictions are of some relevance. In the first place, Mr White has a long record of offending from his teenage years until recent times. As with many people, his rate of offending has decreased, but he has some relatively recent and quite serious convictions. That is relevant to the issue of whether he is someone who is prepared to act in a way that transgresses the rules and norms of society. It would also be relevant to his claim to damages.

Further, as set out in the PNC printout in evidence, Mr White has a long history of committing offences of both violence and of dishonesty. The offences of violence, which included GBH in 1984 and GBH with intent in 1988, are in my judgment, evidence of Mr White’s preparedness to use unlawful violence on occasion. Further, the offences of dishonesty are relevant, like his obfuscation about when he pleaded guilty, to his credibility as a witness.

However, although the convictions provide some supporting evidence on the issue of whether Mr White used or threatened unlawful violence on 5 February 2019, and of his general credibility as a witness, I have not placed much weight on the convictions in reaching my conclusions in the case.

Many of the convictions are very old, and that is particularly true of the most significant offences involving violence.

Although there are quite a number of offences of dishonesty, they are generally acquisitive crimes rather than, for example, fraud or the like. Therefore they are of limited assistance in terms of Mr White’s credibility.

Therefore, although I take Mr White’s record into account when assessing his evidence on particular issues, I place much greater reliance on the contemporaneous evidence, such as the body worn video, Mr White’s correspondence, his social media post in January 2019, and what was found in the property on 5 February 2019, in determining where the truth lies.

In his witness statement dated 16 October 2024 he said that he had been a police officer for 23 years, so since 2001, and he had been a sergeant for 10-11 years, so from 2014 or 2015. Therefore, at the time of the incident on 5 February 2019, he was an experienced police officer with at least 3 years’ service as a sergeant.

He was described by PC Sophie Shilling in her evidence at trial as an officer she had worked with for many years. He was, to use her words “very robust”. She saw his physical reaction when he put his head into the knocked out panel of the side door. She said that she had never seen him recoil or react in that way before and she concluded that something very serious must have happened.

I formed the impression that PS Balment was a calm, but assertive, officer, who would not stand for any nonsense. He struck me as someone who was in control of his emotions and who acted decisively when he considered that it was necessary, including in using force. Although, as recorded on the BWV, PS Balment shouted at Mr White when he entered the property, after Mr White had been tasered by PC Dunn, I did not form the impression that he had lost control or that he was angry in the sense of having lost his professional objectivity. Rather he was, in my judgment, using his voice in furtherance of his attempt to gain control of Mr White.

In assessing his reliability as a witness, I took into account the fact that his original witness statement on the day of the incident did not mention an imminent breach of the peace as a reason for him entering the property. That evidence came for the first time when he gave evidence at Mr White’s original criminal trial in August 2019, and it was then included in a second MG11. It may be that it is the product of him going over events again in his mind before he was called to give evidence some months after the events in question, rather than a genuine memory from the time. However, ultimately I concluded that the original omission merely reflects the way in which the mind can work. Some details are recalled immediately and others may not be recalled until a later date. The fact is that the only reason that the police attended the eviction on 5 February 2019 was because of concern about a possible breach of the peace. Given Mr White’s refusal to cooperate, and his barricading of the front door, it would have been surprising if PS Balment had not thought that there was the risk of an imminent breach of the peace. Overall, although I take the inconsistency into account, it does not cause me to doubt either the honesty of PS Balment nor his, as I find it, reliability as a witness.

Further, I have, of course, considered Mr White’s submission that PS Balment’s description of the object that Mr White was holding was plainly wrong. The ‘implement’ was a large hockey stick like object and it was not a sledgehammer. There was no large head on the end of the shaft, although there was the angled blade. However, it is clear from the BWV that PS Balment had only a fleeting moment to see the object before he withdrew his head. On his evidence the implement was moving and he was scared that he was going to be struck in the head. In those circumstances it was, in my judgment, entirely understandable that he could describe the object mistakenly. He had correctly identified the long shaft and he was concerned that the blade end was going to strike him. Whether he simply did not see what was on the end, or whether he just gained an incorrect impression of it in the momentary window of observation that he had, is not clear. However, I am quite satisfied that his reference to a sledgehammer was a genuine description based on his perception at the time and it does not cause me to doubt the accuracy of other parts of his evidence.

Further, I also take into account the fact that PS Balment was not wearing a BWV camera, and that it is accepted by the Defendant, although not by PS Balment himself, that he should have been. However, there are no grounds in the circumstances of this case for me to find that he deliberately chose not to wear a camera so as to avoid having evidence of what occurred. He did not know what was going to happen. If he had foreseen what Mr White was going to do, he no doubt would not have put his head through the door as he did, placing himself in a vulnerable position. Further, given his method of attempted entry, I very much doubt that any camera worn by him would have captured any material evidence of what happened as he put his head through the gap, since it would have been positioned on his chest. I accept that, although he should have been wearing BWV, at the time, in 2019, it had not become routine for all officers to wear and use BWV when dealing with a situation such as that on 5 February 2019. Therefore, his failure to wear a BWV camera does not cause me to doubt his credibility as a witness.

Most importantly, although the inside of the property is not shown on video when PS Balment put his head through the gap and then quickly retreated, his actions and reaction are captured on the BWV of other officers. When, after Mr White had been tasered by PC Dunn, PS Balment then went into the property and dealt with Mr White, that was recorded by a fellow officer’s BWV. In my judgment, his account of events is consistent with the BWV that was taken, which lends significant support to his credibility as a witness.

Overall I found him to be an impressive and reliable witness, who gave clear and cogent answers when he was cross-examined by Mr White. I consider that I can rely upon his evidence, which is substantively supported, directly or indirectly, by the BWV, as well as by the evidence of his colleagues.

He had over 10 years’ experience as a police officer at the time of the incident. He now works as a police constable at the Port of Dover.

He was wearing a BWV camera, but he did not activate it before he tasered Mr White. He explained that, at the time, BWV was relatively new and it would only be used for particular offences, such as domestic violence. Although the Defendant accepts that PC Dunn should have activated his BWV earlier, I do not find that this failure was because of any bad faith on the part of PC Dunn. I accept his explanation that activating BWV before incidents blow up was simply not as routine as it has become over time.

I also take into account his concession that his account in his police notebook on the day in question of a man coming to the window of the property was not his own observation, but a record of what someone else had told him. However, his entry in the notebook does not make that clear, as it should have done.

His account in his original MG11 was similar to that of PC Shilling, but I accept his evidence that it was prepared by him alone, without conferring with his colleagues. Since PC Shilling and he were involved in the same incident, it is not surprising, particularly if they are reliable witnesses, that their contemporaneous accounts should be similar.

He too was an officer who came across to me as a professional who was in control at all times. That was confirmed for me by the BWV, that showed that he gave Mr White plenty of opportunities to comply with the directions that he was giving him before he used the taser for the first time. His voice was firm, but not confrontational.

PC Vencius had only been a police officer for 2 or 3 years at the time of this incident. He was a less confident witness than some of his colleagues. However, he was clear when he disagreed with points that were being put to him by Mr White. His description, in particular, of his feelings of fear when he was confronted by Mr White, and when trying to restrain him in the kitchen, was compelling. His actions are largely captured on his body worn video and that of PC Shilling, and that supports my assessment of him as a professional officer who was dealing with a very challenging situation.

This officer too came across as a professional officer. She was more experienced than PC Vencius, having been an officer for 6-7 years at the time. She gave evidence of having worked with PS Balment for a long time and it was clear that she respected him. I took that into account when considering her evidence, in case she was influenced by her professional relationship with him. However, her evidence was supported by the BWV and, like the other police officers, I concluded that her evidence was straightforward and reliable.

Mr Simpson was not a particularly confident witness, and his knowledge of the exact legal framework within which he was operating was not perfect. Further, his memory of detail was not particularly good.

However, he struck me as someone who was doing his best to assist the court and I had no reason to doubt the veracity of what he told me. In any event, since this claim is against the police, his evidence provides background and context to the evidence of the police officers, rather than being central to the findings that I must make.

Mr Hall was a straightforward, working man, who gave his evidence in a matter of fact way. I had no reason to doubt what he told me. However, like Mr Simpson, the reliability of his evidence is in any event not central to the case.

The evidence of PC Nicholls, Inspector Duke, DC Bell and former PS O’Connor was agreed and therefore I can and do rely upon it in reaching my findings in this case. That evidence addresses the claim for false imprisonment arising from Mr White’s detention at the police station.

What happened when bailiffs attended the property on 4 December 2018?

I accept the evidence of Mr Simpson and Mr Hall that there were a large number of people present outside of the property when they arrived on 4 December 2018. There were certainly many more than 5 individuals, probably 10-12 in total, including some who were probably wearing masks, as Mr Hall said. The individuals made their intention to prevent the eviction taking place, using force if necessary, clear by their words and by their demeanour, which was best described as passive aggressive in the case of Tobe Hayden Leigh and the other man who purported to explain the law to the bailiffs, although none of those present became physically aggressive.

The eviction did not take place on 4 December 2018 because of the presence of those individuals, including Mr White, who made it clear that, if an eviction was attempted, force would be used to try to prevent it. The decision was therefore made by Mr Elcome, the Bailiff Manager, that they would leave and try again on another occasion.

The reason for the eviction not taking place was not because of any belief on the part of the bailiffs that they did not have the power to evict, or because of any defect in the warrant.

What information did Kent Police have in advance of the 5 February 2019 attendance at the property and why were they in attendance?

The information provided to Kent Police by Mr Simpson, the bailiff, was that the previous attempt to carry out the eviction had been prevented because of the presence of 12 ‘freeman of the land” type men, who had blocked the bailiffs from carrying out the eviction. At the briefing, the police officers understood from the bailiffs that there had been the potential for a breach of the peace if they had proceeded to carry out an eviction on the previous occasion and they had concern that the same situation could arise on this occasion.

Kent Police attended on 5 February 2019 pursuant to their duty to prevent a breach of the peace, which they anticipated might occur when the eviction took place. In view of what had occurred on the previous occasion, the police believed that there was the potential for the police to need to use force to enable the eviction to take place and to avoid a breach of the peace, or to deal with any breach of the peace that occurred.

What did the police officers believe was the basis on which force could be used by them to enter the property

Both PS Balment and PC Dunn believed that the existence of the warrant and the associated paperwork gave them authority to use force to enter the property if necessary. PS Balment had read the EX96 that stated that the agent of the claimant could authorise the police to use force. At the property Mr Hall, the locksmith and agent of Nat West / RBS had given them that authorisation when he told them to use force to go through the side door whilst he drilled the front door lock.

Further, although it was not in their original MG11s, I accept the evidence of both PS Balment and PC Dunn that they believed that a breach of the peace was imminent, in that Mr White was very likely going to behave in a way that amounted to a breach of the peace once the eviction started, and that preventing that imminent breach of the peace was also a reason for the police to use force to enter the property to prevent the same.

What was Mr White’s state of mind and intention with respect to the further attempt at eviction that took place on 5 February 2019

In my judgment, Mr White’s intention was to prevent the eviction. He had barricaded the doors and he had assembled objects that, I find, he intended to use as weapons, if he deemed it necessary, in order to protect what he regarded as his home from what he thought were the unlawful actions of the bailiffs and the police.

I find that, when he posted on Facebook some days earlier that he was looking forward to using reasonable force, he meant it. There was no other reason for him to be armed with what I find was a wood bat or club, or for him to have stored house bricks and golf balls in the house to use as weapons.

Further, as juries are directed, intention can be inferred from a person’s actions. As I will come to, I accept the evidence of PS Balment that Mr White swung the club in the direction of his head. I also accept the evidence of PC Dunn that Mr White was swinging the club, despite being told to put it down by that officer. Further, I accept that, when the officers entered the kitchen, he actively resisted them.

Those actions by Mr White support my conclusion that he intended to prevent the eviction, including by using force and by deploying weapons, if he deemed that to be necessary.

Why did PC Dunn use force to remove the bottom panel of the side door?

PC Dunn, I find, correctly understood that he had the authority to use force because Mr Hall, the agent of Nat West, had authorised the police to do so. The evidence as a whole confirms that Nat West had, through their legal representatives, authorised the use of force and Mr Hall, the locksmith and their agent, was empowered to and did authorise the bailiffs and the police to use force to allow the eviction.

Further, I find that PC Dunn believed that, if force were not used by the police, then a breach of the peace was likely to occur when the locksmith and bailiffs attempted to enter the property. Police officers were in a better position to pre-empt or deal with a breach of the peace than civilians and it was their duty to forestall the anticipated breach of the peace.

Since PC Dunn was told that Mr White had made it clear through the upstairs window that he was not going to cooperate, and the doors were barricaded, preventing the locks from simply being drilled, PC Dunn decided that he needed to use the ‘enforcer’ to gain entry. As agreed with the locksmith, Mr Hall started to drill the lock of the front door as a distraction, whilst PC Dunn took out the lower panel of the side door.

What was Mr White doing when PS Balment put his head and upper body through the hole in the side door?

I accept the evidence of PS Balment that Mr White swung the wooden club towards his head twice in a way that gave the officer the clear impression that Mr White was going to strike his head with it. That is consistent with what the officer said at the time and it is consistent with his reaction as captured on the BWV. In my judgment, there would have been no reason for PS Balment to say or do what he did unless he had apprehended an immediate threat if he remained as he was with his head through the panel.

However, I do not find that Mr White in fact intended at that time to strike PS Balment. However, by swinging the wooden club as he did, he risked misjudging matters such that he could have made contact with PS Balment’s head.

What did PS Balment believe that Mr White was doing when he put his head and upper body through the hole in the side door?

I accept that PS Balment genuinely believed that Mr White was intending to strike his head with an object that he believed at the time was a sledgehammer.

Why did PC Dunn deploy the taser for the first time against Mr White?

PC Dunn was dealing with a man who he genuinely believed had tried to hit PS Balment on the head with a sledgehammer. When he saw Mr White, Mr White was swinging the wooden club and he refused to put it down, despite PC Dunn instructing him to do so, even when PC Dunn told him that he was a taser officer. PC Dunn believed that it was necessary to use the taser in order to incapacitate Mr White, so that he could be arrested, and in order to prevent him causing harm to officers or causing a further breach of the peace.

What was Mr White’s reaction to the first taser?

The barbs of the first taser did not make contact with Mr White’s skin due to his layers of clothing and therefore it did not have any effect on him.

Why did PC Dunn deploy the taser for the second time against Mr White?

Since the first taser did not have an effect, PC Dunn deployed the taser a second time because he believed that Mr White continued to pose a threat and he needed to be arrested.

What was Mr White’s reaction to the second taser?

The barbs of the second taser made some contact with Mr White’s skin, but he was not fully incapacitated. He did stumble, however, at which point PC Vencius entered the kitchen and pushed him, before trying to restrain Mr White with the assistance of PS Balment. Mr White actively resisted the attempts to restrain him. Mr White did not offer the wooden club to PC Vencius as he alleged, but he did drop it at some point, possibly after he was punched.

Why did PS Balment punch Mr White to the head?

PS Balment believed that it was necessary to use further force to gain full control over Mr White, who was actively resisting the attempts of PC Vencius and PS Balment to restrain him, so that Mr White could not cause injury to officers and so that he could be arrested for the offence of affray.

PS Balment believed that the use of the punches to the head, which was a trained technique, was the least force necessary in order to achieve those objectives. He had discounted the use of an asp, because that could have caused serious injury to Mr White. He had also discounted the use of pava spray, because they were in an enclosed environment and the spray would have affected the officers as well as Mr White.

Did PS Balment suspect that Mr White had committed the offence of affray when he arrested him?

Given what had occurred when he had put his head through the hole in the side door, I find that PS Balment did believe that Mr White had committed the offence of affray when he arrested him.

Did PS Balment inform Mr White of the reasons for his arrest and did he caution him?

There is no dispute but that he did because it is recorded on the BWV and the words of PS Balment can be heard clearly.

Why were handcuffs applied to Mr White?

Given how Mr White had behaved, both in threatening officers with the club and in actively resisting being restrained, the officers believed that it was necessary for him to be handcuffed to prevent him causing injury to officers or others, and to ensure that he did not escape.

Why were the handcuffs not removed from Mr White (save for being moved from the rear stack to the front stack position at the hospital) before he reached the custody suite?

The potential threat from Mr White remained until he was securely in the custody suite. Whilst he was at the hospital or being transported, the officers believed that he continued to pose a risk of causing injury to others and a risk of escape. If Mr White had cooperated and spoken to the officers, then the officers would have reassessed the situation, but he did not give the officers that opportunity.

Why was Mr White detained for the period that he was?

The initial detention of Mr White by the police officers, after he was taken from the property, was whilst he was taken to hospital. That was because he had been tasered and had a small head injury. Once he refused treatment, he was taken to custody. The evidence of DC Bell and PC Nicholls is unchallenged in explaining why their initial investigation was delayed, which was because of the time that was needed dealing with another prisoner and, after Mr White was interviewed, in dealing with the CPS, and then waiting for a slot at the custody desk.

Were reviews of Mr White’s detention carried out on time and, if they were not, did it make any difference to the length of time for which he was detained?

A first review by the Inspector should have taken place by 19.16 but it did not take place until 19.20. The review was therefore 4 minutes late.

The review found that Mr White’s continued detention should be authorised. Therefore the 4 minute delay made no difference to the time for which he was detained.

Did any police officer make a statement that he or she knew to be untrue concerning the events of 5 February 2019?

I do not find that any officer made any statement that he or she knew to be untrue concerning the events of 5 February 2019. Where errors were made, the most obvious being PS Balment referring to the implement being held by Mr White as a sledgehammer. If find that that was a result of an honest mistake, which was entirely explicable given the surrounding circumstances, which were very frightening for him, and the very brief time that he had to observe Mr White.

Was the independence of the Crown Prosecution Service in deciding to prosecute or to continue to prosecute Mr White overborne or perverted by the actions of one or more of the police officers?

In view of my finding that no police officer lied about any material matter, this question does not arise. In any event, it is clear that the CPS and the instructed Prosecutors at the trials took their own independent decisions concerning the prosecution of Mr White.

If I had found that PS Balment had deliberately lied about Mr White swinging the wooden club towards his head, that was such a central piece of evidence that it would have had the potential to form the basis of an allegation of malicious prosecution. However, I reject the allegation by Mr White that PS Balment lied about this for the reasons I have already explained.

The issue is not correctly framed in this question. The mortgagee, National Westminster Home Loans Limited, was on 5 February 2019 entitled to possession of the property as a result of the possession order that had been made on 13 August 2018. The mortgagors, Mr and Mrs White, had no right to possession of the property by 5 February 2019. The mortgagee had applied for a warrant for possession of the property and the warrant of possession was lawfully and properly issued. The mortgagee was entitled to authorise the county court bailiff and the police to use reasonable force if necessary in order to gain entry to the property. The mortgagee, through its legal representatives, had authorised the use of force if necessary and, in accordance with the fact and scope of his authority, the mortgagee’s agent at the eviction, the locksmith, Rod Hall, authorised the police to use reasonable force if necessary to enter the property. The police therefore had the power to lawfully use force to enter the property in furtherance of the execution of the warrant and the enforcement of the possession order of the court. Given all of the circumstances, the use of force by the police was both necessary and reasonable to enable the possession order to be enforced.

Although it was not mentioned in the original MG11 of PS Balment, I find, on the balance of probabilities, that, at the time he attempted to enter the property, he did honestly and reasonably fear an imminent breach of the peace.

The information that had been provided to Kent Police by the bailiff, Mr Simpson, concerning the previous visit on 4 December 2018, had led to the police deciding to attend on 5 February 2019, precisely because of the risk of a breach of the peace occurring when the eviction was attempted.

By the time that PS Balment attempted to enter the property, Mr White had barricaded the front door and he had made it clear that he did not intend to cooperate in the process of the eviction. In those circumstances, it was, in my judgment, inevitable that PS Balment would think that Mr White was imminently liable to act in a way that amounted to a breach of the peace when the lawful eviction was attempted.

In my judgment, if PS Balment had not had the authority to use force to enter the property by virtue of the authorisation given by Nat West/RBS and Mr Hall, as set out in relation to Issue 1, he would nonetheless have acted lawfully when he attempted to enter the property in order to try to prevent an imminent breach of the peace.

I reach the same conclusion for like reasons in so far as the use of force by PC Dunn to enter the property is concerned.

In my judgment, Mr White did swing a large wooden implement, resembling a crude hockey stick or a wooden bat, in the direction of PS Balment’s head. Although he described it erroneously as a sledgehammer, PS Balment was, I find, describing the implement that was later seized and is shown at Appendix 2. He described it as such immediately following his rapid retreat back out of the property, as recorded on the BWV. Further, I accept the evidence of PC Shilling that the way PS Balment reacted, which was out of the ordinary for the normally robust officer, was consistent with something very serious having occurred.

Further, although it was after PS Balment had retreated, I accept PC Dunn’s evidence thatMr White was continuing to swing the implement when he observed him. That was a continuation of what I find that he had been doing when PS Balment first attempted to enter the property.

However, I do not find that at this point (when PS Balment first put his head through the hole in the door) that Mr White was in fact intending to strike PS Balment’s head. He was, however, quite intent, I find, on threatening PS Balment with the wooden implement and on making him fear that he would be struck with force on the head. Mr White was acting recklessly in that, if he had thought about it, he would have realised that there was a real risk that he could strike PS Balment’s head given the way that he was swinging the implement close to the officer’s head, even though he may not have intended to do so. I find that PS Balment genuinely and reasonably thought in the circumstances that Mr White intended to hit him with force on the head with the wooden object, in the brief time that he had to assess the situation.

In the circumstances as I have found them to be, Mr White had no right to use force to prevent PS Balment entering the property. Mr White was a trespasser in the property and any use or threat of force by him towards PS Balment at that time was unlawful.

In this case, I find, on the balance of probabilities, that Mr White assaulted PS Balment, because he caused PS Balment to apprehend the infliction of immediate, unlawful force on his person, namely by his head being struck with the wooden implement wielded by Mr White.

Once Mr White had assaulted PS Balment, by deliberately swinging the wooden implement towards his head, such that PS Balment feared that his head was going to be struck, the police officers were entitled to use reasonable force to arrest him.

Further, the police officers were entitled to use reasonable force to prevent the commission of further offences by Mr White, such as further assaults or batteries, or to prevent a breach of the peace by him.

In my judgment, PC Dunn honestly believed that it was necessary to use the taser on Mr White on two occasions for the reasons that he gave, and that belief on the part of PC Dunn was reasonable in the circumstances. Mr White was still holding the wooden bat and swinging it, he refused to put it down, and he was visibility aggressive. PC Dunn’s judgment that the use of the taser was the least force necessary in order to enable officers to arrest Mr White, and to prevent him committing assaults to officers or others, was, I find, a reasonable judgment. Further, his judgment, and that of PS Balment, that the use of pava spray was not an option, because Mr White was in a confined space and the spray would incapacitate the officers who went into the kitchen, was a reasonable judgment.

The use of force by PC Vencius in pushing Mr White and then attempting to physically restrain him, along with PS Balment, was because he, like PS Balment, honestly believed that it was necessary to use force to prevent Mr White using the wooden club to attack officers and to arrest Mr White. That belief on the part of both PC Vencius and PS Balment was in the circumstances a reasonable belief. Mr White was actively resisting and he was still holding the wooden implement, which both officers honestly and reasonably believed he had already used to try to assault PS Balment.

Despite the use of the taser and the attempts to physically restrain Mr White, as the BWV confirms, Mr White was still not under the control of the officers and I find that they honestly believed that he continued to pose a real threat to officers. That was a reasonable belief in the circumstances. PS Balment honestly believed that it was necessary to use a different kind of force in order to arrest Mr White and to prevent him from committing any assault on a police officer. He judged that the use of two ‘distraction punches’ to Mr White’s head was the least amount of force necessary in order to achieve those objectives. He had discounted the use of a more significant source of force, namely his asp, because of the potential it had to cause serious injury to Mr White. In my judgment PS Balment’s honest belief that it was necessary to punch Mr White twice to the head was a reasonable one in the circumstances with which he was faced and the amount of force he used was proportionate.

Further, given how Mr White had behaved, and his continuing resistance, the police officers who handcuffed Mr White honestly and reasonably believed that it was necessary to handcuff him in order to prevent him committing further offences or escaping. In view of his refusal to talk to or cooperate with the officers when he was transported to the two hospitals, whilst he was waiting in the public areas of the hospitals, and when he was then transported to custody, the officers honestly and reasonably believed that it continued to be necessary to keep him in handcuffs. However, when he complained of discomfort, the position of the handcuffs was adjusted by the officers to the front stack position. The use of handcuffs was necessary and it was proportionate in the circumstances.

Having considered all of the evidence and, in particular, the BWV evidence, I therefore find that all of the force used by the officers on Mr White was lawful. The officers believed that it was necessary to use force and the force that they used was reasonable and proportionate in all of the circumstances given a) what Mr White had already done, b) how Mr White continued to behave, c) the enclosed space within which they were operating when he was in the kitchen of the property, d) the need to protect themselves and others from injury, e) the need to arrest Mr White and f), once he had been arrested, the need to prevent him escaping from lawful custody.

In my judgment there were reasonable grounds for PS Balment (and the other officers) to believe that Mr White had committed the offence of affray. The nature of the incident when Mr White swung the implement at him, and Mr White’s conduct after that time until he was tasered for a second time, was such that it fell within the statutory definition of affray, although it could also be described as an assault. The way in which I find that Mr White had swung the implement towards PS Balment’s head, as well as his continued swinging of the implement, as described by PC Dunn, constituted the use or threat of unlawful violence towards another and, further, it was such that it could cause a person of reasonable firmness present at the scene to fear for his personal safety. PS Balment was rather more robust than an average person, on my finding, but I find that he, in particular, genuinely and reasonably feared for his personal safety as a result of the way in which Mr White behaved.

The claimant was arrested at 08.00 on 5 February 2019 and he was released from custody at 22.53, a total of 14 hours 53 minutes.

Of that period, 5 hours 12 minutes were because he was initially taken to the local hospital, and then on to the main hospital on the mainland. That was reasonably necessary because he had been tasered and he had a cut to his head. Although he ultimately refused treatment, the police officers were acting reasonably in taking him to hospital and they would have been liable to criticism if they had not.

Mr White has had access to the custody record of Prisoner X and he had the opportunity to challenge the explanations given for the delay in his case being investigated whilst he was in custody. He also had the chance to challenge the various explanations given by officers for what was happening at different points in time and about why it was not until after 22.00 that a charging decision was made in his case. Since he agreed the statements of the various officers involved, and he did not actively pursue his case based on the length of his detention, although it was not formally abandoned by him, there is no scope for me to find that the length of his detention was other than necessary and proportionate.

There was a 4 minute delay in the review of Mr White’s detention by Inspector Duke. However, that delay made absolutely no difference to the length of Mr White’s detention and it was wholly insignificant. Mr White suffered no loss (see R (WL (Congo)) v Home Secretary [2011] 2 WLR 700, per Lord Dyson JSC at [95]). In the circumstances only nominal damages are appropriate.

At paragraph 13-008 of McGregor on Damages, 22^nd Edition, the authors cite a number of cases on the appropriate sum to be awarded where nominal damages are appropriate. I award the sum of £2.00, that being said to be “the traditional sum” in Village Investigations Ltd v Gardner [2005] EWHC 3300 at [77].

PS Balment’s evidence was central to the Prosecution case. Without his evidence of what he saw when he put his head through the hole in the side door, the Prosecution would have had no case. Therefore, in the circumstances of this case, Kent Police could be said to have prosecuted Mr White in the sense explained by Lord Keith at 86G-87A in Martin v Watson [1996] 1 AC 74.

I do not find that the prosecution was pursued without reasonable and probable cause or maliciously. I have found that PS Balment and the other police officers gave truthful accounts of what occurred on 5 February 2019 and that any mistakes they made in their accounts were honest mistakes.

In those circumstances, the decision of the CPS to prosecute, or to continue to prosecute, Mr White was not “overborne or perverted” by PS Balment or any other police officer. I find that neither PS Balment nor any other police officer procured the prosecution of Mr White by deliberately giving a false account of the events of 5 February 2019.

The claimant is entitled to judgment in the sum of £2.00 in respect of his claim for false imprisonment.

The remainder of the claimant’s claims are dismissed.

In the circumstances it is neither necessary nor appropriate for me to attempt to assess what damages, including any aggravated or exemplary damages, would have been awarded had I found the facts to be as advanced by Mr White in his claim.

Finally I wish to thank Mr White’s McKenzie Friend, Trevor Young, and Mr Fortt, counsel for Kent Police, for their assistance in this trial.