Anthony Jones v Chief Constable of Essex Police

At approximately 3 AM on 30 July 2021 the defendant received reports from members of the public of a large, shirtless male behaving aggressively, shouting, making threats to kill and wielding a large knife whilst in a residential garden. The reports include references to the man “having a big fucking blade in his hand”, that the man “seems to have mental health problems”, is “shouting about killing people”, and that “he looks out of his head”. Another informant stated that the male is “a big lad” and that this was “probably not a two-officer job”. Non-firearms officers attended the scene and described seeing the man being in possession of a large kitchen knife and banging it on windows. They were able to identify the man as the claimant, Anthony Jones. Firearms officers were called and attended the scene. The firearms officers shouted various commands to the claimant who failed to comply. The officers proceeded to detain the claimant and during that process discharged a baton round and two tasers at him, whilst another officer admits to striking him in his upper left arm three times, and another admits to striking him in his abdomen. The claimant was arrested and subsequently pleaded guilty to a s.4 Public Order Act 1986 offence at Chelmsford Crown Court where he was sentenced to 2 months imprisonment.

During the course of the arrest and restraint by police officers the claimant says he sustained a dislocated shoulder and has since suffered from chronic impairment of shoulder function and moderate post-traumatic stress disorder. Consequent to this injury the claimant seeks to bring a claim against the defendant for damages including aggravated, exemplary and special damages for assault/trespass to the person.

Section 329 of the Criminal Justice act 2003 provides that where a claimant alleges a defendant, including police officers, has done an act amounting to trespass to the person and the claimant has been convicted of an imprisonable offence committed on the same occasion as that in which the act amounting to trespass occurred, civil proceedings can only be bought with permission of the court.

Consequently, solicitors for the claimant appeared before the court in the Urgent Short Appointments List on 29 July 2024 with an application (“the first application”) seeking such permission. The claimant sought that the application be heard urgently and without notice since the three-year limitation period would expire on 30 July 2024. Details of the application will be addressed further within this judgment, but the outcome of that first hearing was that the claimant was given permission to issue proceedings by way of an order dated 29^th July 2025. Since the application had been determined without notice to the defendant the order contained provision as required by CPR23.10 that the defendant had leave to apply to set aside or vary the order provided that any such application was made within 21 days of service of the order.

The first application together with a copy of the order were served by the claimant upon the defendant on 31 July 2024. On 20 August 2024 the defendant made an application (“the second application”) to set aside the order. It is this application which now falls to be determined by the court.

Section 329(1) Criminal Justice Act 2003 provides (as relevant):

(1) This section applies where—

(a)

a person (“the claimant”) claims that another person (“the defendant”) did an act amounting to trespass to the claimant’s person, and

(b)

the claimant has been convicted in the United Kingdom of an imprisonable offence committed on the same occasion as that on which the act is alleged to have been done.

(2)

Civil proceedings relating to the claim may be brought only with the permission of the court.

(3)

The court may give permission for the proceedings to be brought only if there is evidence that either—

(a)

the condition in subsection (5) is not met, or

(b)

in all the circumstances, the defendant’s act was grossly disproportionate.

(4)

…

(5)

The condition referred to in subsection (3)(a) and (4)(a) is that the defendant did the act only because—

(a)

he believed that the claimant—

(i)

was about to commit an offence,

(ii)

was in the course of committing an offence, or

(iii)

had committed an offence immediately beforehand; and

(b)

he believed that the act was necessary to—

(i)

defend himself or another person,

(ii)

protect or recover property,

(iii)

prevent the commission or continuation of an offence, or

(iv)

apprehend, or secure the conviction, of the claimant after he had committed an offence;

or was necessary to assist in achieving any of those things.

The effect of this provision is that where a person is injured by a trespass to the person whilst committing a crime for which they are later imprisoned, they can only bring a claim for those injuries where there is evidence that either (i) when the defendant did the act which amounts to trespass, they did not do so only because they believed that the claimant was committing, had committed or was about to commit an offence, and that they did not believe the act was necessary for the purpose of self-defence, recovering property, prevention of commission of office or to apprehend or secure a conviction of the claimant, or (ii) alternatively in all the circumstances, the defendant’s act was grossly disproportionate.

In the current case the parties are agreed that the act amounting to trespass occurred at a relevant time for the operation of s.329(3)(a). That is to say that the claimant does not dispute that at the time of the arrest the defendant’s officers did the act complained of only because they believed the claimant was about to commit, was in the course of committing, or had committed an offence immediately beforehand. The claimant seeks permission to bring his claim on the grounds of s.329(3)(b) namely that in all circumstances the defendant’s act was grossly disproportionate.

In Adorian v Commissioner of Police [2009] EWCA Civ 18 Lord Justice Sedley noted at [6]

“one cannot fail to notice that this section has nothing on the face of it to do with policing. In what one can call the Tony Martin situation - a sudden encounter with a crime - it gives the individual a defence of honest, even if unreasonable, belief in the need for his or her act; and it forfeits the defence only if the act was grossly disproportionate. There is nothing on the face of the section or its shoulder-note which manifests an intention to afford the police a novel protection from claims by offenders for objectively unreasonable or unnecessarily violent arrests.”

The standard to be applied in considering whether the claimant has evidence of the relevant matters – in this instance evidence of grossly disproportionate acts - is whether the claim has a real prospect of success and in particular there is a real prospect of the court concluding the conditions for permission are met (Buike v Chief Constable of West Yorkshire Police [2009] EWCA Civ 971 at 4). As per Lord Justice Toulson in Buike whilst such applications ought not turn into a mini trial:

“the proper approach of the court on such an application is similar to the approach of a defendant’s application for reverse summary judgment under CPR 24.2. In other words the claimant has to show that the claim has a real prospect of success and in particular that there is a real prospect of the court concluding … that the defendant’s conduct was grossly disproportionate”.

As identified above solicitor for the claimant, Mr Rubinstein, attended the King’s Bench Division of the High Court on the afternoon of the 29^th July 2024, having asked to be seen by the Practice Master. The King’s Bench Division no longer operates a Practice Master list and had not done so for some years prior to Mr Rubinstein’s attendance. Instead, he was seen by me as Master presiding over the Urgent Short Appointments List. No application had been issued on the court’s CE File system, but Mr Rubinstein presented an application on paper dated 29^th July 2025 seeking an “order under s329(2) Criminal Justice Act 2003 - permission to bring proceedings”. The application was supported by a witness statement of the same date from Mr Rubinstein which outlined the details of s329 of the Criminal Justice Act 2003, attached a copy of the draft Particulars of Claim, made reference to the police’s Body Worn Video footage, referenced limited excerpts from the claimant’s medical records, and attached a “Use of Force expert’s preliminary report” prepared by Mr Eric Baskind and dated 1 March 2024.

During the brief hearing Mr Rubinstein acknowledged the application had not been CE filed, but said the matter was relatively “straight forward”. He said permission was required today pursuant to s329 as this was the last day before the limitation period expired, and the claimant intended to issue a claim form that day. He referred to page 11 of Mr Baskind’s report and in particular highlighted paragraph 38 in which the expert concluded that the force used “was in any event grossly disproportionate to the incident”. His statement referred to the fact the police when arresting the claimant used a baton round (that is to say shot the claimant with a rubber bullet), deployed a taser multiple times, struck the claimant in what was described in the officers own words “as hard as they could”, and struck the claimant in the abdomen multiple times. It was said that as a consequence the claimant suffered a dislocation of the shoulder, full thickness tears of both supraspinatus and infraspinatus tendons, a cortical fracture of the humeral head, nerve damage to the shoulder, and extensive soft tissue injury to the shoulder, arm, chest and abdomen.

The court was left with something of a dilemma. If the application was listed on notice, then it would not be determined until after limitation had expired. If it were dealt with ex parte then the defendant would not have opportunity to make representations. In the circumstances and based solely on the evidence before the court at that time and the submissions made on behalf of the claimant I accepted the application as “received by the court” and was satisfied that for reasons of expediency and on an unchallenged basis the essentials of s329(1)(3)(b) had been made out. Permission to issue was granted but subject to requirements for filing the application, paying the relevant fee and serving the order and application on the defendant in a timely manner. Further, the order provided that the defendant could apply within 21 days from service to have the order set aside or varied.

On 20^th August 2025 the defendant issued an in-time application (“the second application”) to set aside the order granting the claimant permission to issue proceedings. The application is founded on an assertion that “the defendant’s act was not grossly disproportionate” and permission under s.329(1)(3)(b) ought not to have been granted. The application was supported by the witness statement of Polly Lane which exhibited the Essex Police Professional Standards Department Investigating Officer’s Report, notes from the attending Police Officers, transcripts from the body worn camera footage, witness statements taken from members of the public, together with the footage from the attending officers body camera footage.

The defendant’s submissions start from the position that there is no dispute that there was a lawful basis for the arresting officers to use some force, and that the essential facts of the case are agreed: the officers were responding to reports of a large, shirtless man armed with a large knife shouting aggressively and making threats to kill in residential gardens in the vicinity, that one officer discharged a baton round, two officers subsequently discharged a taser one time each, a fourth officer struck the claimant on his upper arm three times, whilst a fifth officer struck the claimant in the abdomen.

The defendant submitted that the court had to base a decision solely on the admissible evidence and to determine whether that evidence met the threshold identified in Buike v Chief Constable of West Yorkshire in showing that the claim has a real prospect of success and in particular that there is a real prospect of the court concluding that the defendant’s conduct was grossly disproportionate. Mr Holdcroft for the defendant argued that the question “of whether force is grossly disproportionate is one of law and not a question for expert evidence”, and ‘grossly’ should be given its natural meaning of ‘extremely’ or ‘excessively’. The court was invited to align the distinction between “disproportionate” and “grossly disproportionate” to the distinction drawn between “disruption” and “serious disruption” as per R(National Council for Civil Liberties) v Secretary of State for the Home Department [2024] EWCH 1181 (Admin):

“… the expression ‘serious’ is intended to set the threshold for police intervention at a relatively high level. This reflects its ordinary and natural meaning, its purpose and context, and is a conclusion consistent with admissible extrinsic material.”

The defendant submitted that insofar as the claimant’s expert “Use of Force” evidence accompanying the first application is relevant it must be construed as being solely based on the baton round and two taser uses, since at paragraph 21 of that report Mr Baskind opines that “the use of multiple Taser deployments and especially the baton round (which did not have the desired effect) appear difficult to justify”. In contrast at paragraph 32 of the report Mr Baskind concludes that the officers striking the claimant in the arm and abdomen in response to being bitten and kicked by the claimant “would seem reasonable and in accordance with officer training”. Mr Baskind then fails to separate the individual uses of force in his conclusions, whilst simultaneously referring to Authorised Professional Practices which were not in place at the relevant time.

Further, whilst the claimant is seeking to rely upon correspondence from the defendant acknowledging that “whether the officers’ actions can be said to be grossly disproportionate is a matter for the trial judge further to hearing evidence from all witnesses under oath” as evidence that the extent of the force used is a triable issue not suited to be tested summarily, that correspondence must be read in context. The reference was in fact an explicit and specific reference to the necessity and admissibility of expert evidence in relation to the use of force, an issue which the defendant says falls within the remit of the trial judge, not of any expert. Accordingly, the defendant seeks that the order be set aside as the claimant has failed to reach the threshold of grossly disproportionate force and the footage demonstrates that the officers were simply trying to control, detain, and arrest the claimant.

Mr Metzer KC submits that the claimant was in his garden and in a state of distress and disorientation following a relapse into drugs and alcohol. He describes the defendant’s officers as arriving en masse. It was said on behalf of the claimant that he was unarmed when eleven officers approached him aggressively, shouting overlapping commands, with the claimant given no opportunity to comply. It was said that the defendant failed to attempt to deescalate the situation before subjecting the claimant to violent restraint.

The claimant’s position is that the requirements of s329(3) do not equate to a factual finding of grossly disproportionate action at the permission stage but rather only requires “evidence” that the defendant’s actions were grossly disproportionate. It was submitted that the defendant’s application invited the court to make a premature assessment of the merits of the case. It was said on the claimant’s behalf that the evidence, including body-worn video footage and medical records, disclosed a prima facie case that the claimant was unarmed, surrounded by officers en masse, confused, and not actively threatening at the time force was used. In these circumstances it was submitted the defendant’s officers resorting to a baton round, multiple taser deployment, repeatedly striking the claimant, and physical restraint without first trying to deescalate was sufficient evidence of use of grossly disproportionate force. It was further argued on behalf of the claimant that the defendant’s own correspondence acknowledged that “whether the officers’ actions can be said to be grossly disproportionate is a matter for the trial judge further to hearing evidence from all witnesses under oath” and that as such the defendant’s application was inconsistent with that correspondence.

In his skeleton, Mr Metzer argued that the order of 29^th July 2024 was made after consideration of the claimant’s evidence and that the defendant has not demonstrated a material error of law or procedure that warrants the setting aside of the order. Mr Metzer submitted that the defendant cannot discharge the burden that the act was not grossly disproportionate under s329(5) (although this is understood to mean s329(3)(b)) at the interlocutory stage. The claimant’s position then is that there ought not be a mini trial and that to satisfy the threshold for permission the claimant need only have evidence to demonstrate to the court that the defendant’s actions were grossly disproportionate. The claimant sought that the order be maintained because it is in the interests of justice that the claimant’s evidence be fully tested at trial.

The right to make an application to set aside or vary an order made on a without notice basis in effect allows the first application be re-heard in full and the court may make any such order as is deemed appropriate, Riverpath Properties Ltd v Brammall, The Times 16 February 2006.It is not then for the defendant to demonstrate a material error in law or procedure such as to warrant setting aside the order, nor for the defendant to discharge a burden of proof that the acts of the officers were not grossly disproportionate. Rather it is for the claimant to satisfy the court that there is evidence on which a court could find that the defendant’s actions amounted, in all the circumstances, to the use of grossly disproportionate force, and that the claim has real prospect of success.

Whilst I am not to conduct a mini trial some consideration of the evidence before the court is essential before s329(3) permission can be granted. Whether force is grossly disproportionate is to be assessed in all the circumstances (McDonnell v The Commissioner of Police for the Metropolis [2011] EWCA Civ 573) and that it is relevant that the defendant’s officers may not be able to weigh to a nicety the exact measure of any necessary action (Minio-Paluello v Commissioner of Police [2011] EWCH 3411).

Upon review of the evidence now before the court I am satisfied that the evidence as presented to the court at the first application was neither full nor frank. It did not include and the court’s attention was not brought to the fact that there were numerous reports received in the early hours of the morning by the defendant from members of the public of the claimant acting erratically and aggressively in the gardens of residential properties. In those reports he was described as being of a large build, shouting and screaming, making threats to kill and wielding a large knife. He was said to have been bashing on doors and windows and acting in a manner consistent with somebody who had taken drugs, alcohol, or both, or being in a state of acute psychosis.

The first officers to attend the scene also describe the claimant as violently banging on a glass door in an aggressive manner with what they believed to be the handle of a large knife. They witnessed the claimant climbing fences and moving between adjoining gardens. The patrol officers called and waited for the arrival of armed officers. The armed officers arrived soon thereafter and describe the claimant as being seen “along the fence line waving in a frenzied manner a large silver coloured object … believed to be a knife”. The armed officers describe identifying themselves as armed officers and instructing the claimant to remain still and to get down on his knees and lie on the grass. The claimant is then described as continuing to move up and down the fence line and picking up a garden ornament before dropping it, turning and attempting to climb the fence. At this point the officers say they believed the claimant was attempting to leave the scene and discharged the baton round. This is described as having little effect and is immediately followed by the discharge of a taser. Agan this is described as causing little reaction. Further verbal request is said to have been made of the claimant who again ignores them and is said to turn and try to mount the fence. At this time a second taser is discharged.

The use of a baton round and tasers having had little effect, the officers proceed to asserting physical control over the claimant. The claimant is described as difficult to control as the officers’ hands kept slipping on the claimant’s wet skin whilst he continued to resist. One officer describes punching the claimant in the muscle mass of his upper arm after the claimant “dug his nails” into the officer’s wrist. Another officer describes delivering strikes to the claimant’s right side in an attempt to stop the claimant from kicking him.

I have had the benefit of reviewing the police body worn footage. This provides a far fuller account of events than that given on behalf of the claimant at the first application and again at the second application. The body cam footage demonstrates clearly that the officers announce themselves as armed police officers a minimum of five times before exercising the use of any force. They ask the claimant to be still, order him to move to the grass, get to his knees, and lie down. The officers can be heard on no less than 10 occasions asking the claimant to lie on the ground. Whilst some of the commands do overlap they are consistent and clear. Despite the officers’ requests and commands the claimant repeatedly ignores them. He continues to move along the fence, picks up a large heavy looking garden ornament, refuses to give his name, instead simply responding to requests to identify himself with, “you know who I am”. The claimant describes the officers and the situation as being “out of fucking order”, and on several occasions can be seen turning and placing his hands on the top of the fence as if attempting to climb it. The body cam footage is consistent with the officers’ accounts of events.

Determination of what amounts to use of grossly disproportionate force involves a mixed determination of law and fact. It is to be based on the broad evaluation of the evidence and determination of whether there is evidence the force used was grossly excessive in the circumstances. That is to say the force used must be more than just excessive or disproportionate. It must be grossly or excessively so when measured against the prevailing circumstances. It is not something that falls to be determined by expert evidence. It requires judicial assessment. Whilst a ‘Use of Force’ expert may in some circumstances be helpful to a court in this instance it is not and little weight can be given to it. The report of Mr Baskin makes references to and reaches conclusions largely based upon on the Authorised Professional Practices dated 2 September 2021 and 1 March 2022. However, neither is applicable here as they postdate the arrest. The report also accepts that even from the claimant’s perspective “the circumstances of the incident were at least on the face of it inherently dangerous” such as to justify the use of some force. The report states that “there was no evidence that he (the claimant) was armed” whilst acknowledging the police had received reports the claimant was brandishing a large kitchen knife. It is however evidently the case, given the reports from the public combined with the observations of the unarmed uniformed officers, that the armed officers who arrive with tasers and baton rounds had received information such as to lead them to have genuine belief that the claimant was armed. No other interpretation of these facts would be plausible. The report goes on to suggest that the officers did not give the claimant sufficient opportunity to comply with their commands. This is simply not a reflection of what is seen in the body cam footage where it is apparent the claimant was afforded many opportunities to comply. Mr Baskin states, “it is possible he (the claimant) did not appreciate that the officers were in fact police officers” and that “it would have been helpful had they taken more time to reassure” the claimant. Whether additional actions would have been helpful is simply immaterial to the test to be applied as to use of grossly disproportionate force. The officers clearly identified themselves repeatedly. The claimant refused to co-operate with the officers’ requests. The test is not one of “helpfulness”. For all these reasons I am not satisfied that any significant or meaningful weight can be attributed to the claimants ‘Use of Force’ expert evidence.

The arresting officers were faced, on any analysis, with a scene where in the early hours of the morning they were required to arrest and detain large, knife wielding man who has been seen banging on glass doors and behaving erratically in residential gardens. That man was the claimant. He was shouting, swearing, behaving aggressively, and making threats to kill. Whether at this point the officers knew the claimant had a record for violent or weapon related offences is not clear but what is apparent is that they were required to carry out the arrest in dark conditions with only torch lights to assist, when they had good reason to believe he was armed with a large knife. He refused to follow commands, appeared to be in a state of delirium, and seemingly acting under the influence of drugs and alcohol, or having a mental health breakdown. As such the situation was inherently dangerous.

These facts, combined with the officers having identified themselves repeatedly, asked for cooperative behaviour from the claimant on several occasions, and the claimant refusing to follow commands but instead visibly taking action consistent with someone about to try to climb a fence and make away are the broad circumstances within which the force used must be judged. With these circumstances I ask myself has the claimant a real prospect of success? Is this case more than fanciful? Does it carry the weight of some degree of conviction? Do these circumstances merit further investigation? Is there any more evidence that can be expected to become available that will influence the outcome?

In short, the answer is clearly “no”. No reasonable and objective person faced with this scenario could conclude that the force used was disproportionate, and if that threshold cannot be met then clearly the claimant has no realistic prospect of satisfying a court that the force used was more than serious or grossly disproportionate. The claimant’s case is contradicted by all the material before the court. It is not enough that the claimant has “some evidence” in the form of a “Use of Force” expert report. The court is not required to take at face value and without analysis what the claimant says in his statement of case nor what one expert concludes in a situation in which permission to rely on expert evidence has not been granted and the expert has usurped the function of the court. The evidence the claimant relies upon must be weighed in all the circumstances of the case and must be sufficient to persuade the court that permission ought to be granted. The evidence that the claimant has produced is not only flawed in the standards it applies, but also inconsistent with the significant amount of incontrovertible material available.

As far as the suggestion that the defendant has in correspondence indicated that they accept there is a triable issue, this is rejected. Any reading of the correspondence will lead the reader to conclude, when put in context, that Ms Lane for the defendant was in fact referencing the necessity and admissibility of the claimant’s ‘Use of Force’ expert report.

There is one other issue which ought properly to be addressed. The defendant has, as a second limb to the application, sought to persuade the court that there is insufficient evidence that the claimant suffered the injury complained of during the arrest. The defendant refers to the claimant, whilst continuing to act aggressively, having been recorded in the body cam footage as saying that he had “hurt his arm” and could be seen carrying his arm in an awkward way before force was in fact used. There is also said to be an absence of medical evidence to support the claimant’s case. This argument alone would not be sufficient to merit the refusal to grant the permission sought. Whilst the evidence is noteworthy it is not possible at this stage of proceedings to reach a conclusion that there is no prospect of the court finding that use of force did not cause some injury. That is an issue which would require further medical evidence to determine what injury if any was caused by the use of force during the arrest.

Nonetheless, on reconsideration of the first application the claimant has failed to satisfy the court that he has a real prospect of satisfying the court that the force used was grossly disproportionate. The order of 29^th July 2024 is set aside, and the claimant is refused permission to issue pursuant to s329 of the Criminal Justice Act 2003.

As an aside I note that having obtained permission to issue on the 29th July 2024 and having informed the court the claim would be issued that day, the claimant did not in fact issue claim form until 31^st January 2025, some 6 months beyond the primary limitation period.