B2/2001/1620/A & B2/2001/1620
Neutral Citation Number: [2002] EWCA Civ 434
IN THE SUPREME COURT OF JUDICATURE 
CIVIL DIVISION 
ON APPEAL FROM THE HIGH COURT 
QUEEN'S BENCH DIVISION
(Mr Justice Morland)
The Royal Courts of Justice
The Strand
London
Thursday 28 February 2002 
Before:

THE PRESIDENT OF THE FAMILY DIVISION
Dame Elizabeth Butler-Sloss

LORD JUSTICE THORPE 

LORD JUSTICE KAY

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Between:
JOHN MICHAEL WILSON
Claimant/Respondent 

and: 

THE COMMISSIONER OF POLICE FOR THE METROPOLIS 
Defendant/Appellant

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Transcript prepared from the Steno Notes
of Smith Bernal Reporting Limited
190 Fleet Street  London EC4A 2HD
Tel:  0207 404 1400
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MR D MACLEOD (instructed by Directorate of Legal Services, Metropolitan Police, New Scotland Yard, Broadway SW1H) appeared on behalf of the Appellant

MR N BLAKE QC and MR L THOMAS (instructed by Christian Fisher, 42 Museum Street WC1A) appeared on behalf of the Respondent
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JUDGMENT

Thursday 28 February 2002 
1.	LORD JUSTICE KAY: On 6 July 2001 Morland J in the High Court in London gave judgment for the claimant for damages to be assessed on his claim against the defendant in respect of personal injuries which, it was alleged, resulted from a deliberate assault by a police officer. The defendant appeals against that decision with permission granted by Laws LJ and Sedley LJ.
2.	The case arises out of an incident that occurred on 26 June 1996. That evening, England lost to Germany in a football match which was the semi-final of the European Championships. After the game was over disorder erupted in Trafalgar Square and the claimant, then aged 16, together with two friends, Christian Marsh and Tim Gooden, were amongst a great many people in the Square at the time.
3.	The situation became volatile and riot police were called to dispel the crowd. In an attempt to manage the situation and direct the crowd away from the West End, the police herded people out of Trafalgar Square via various routes, which included Northumberland Avenue. 
4.	It is common ground that the claimant was amongst the crowd and that he was proceeding down Northumberland Avenue away from the Square on foot with his friends. A number of other youths were not behaving as sensibly and they became involved in a concerted attack on a Ministry of Defence police car and its occupants, stationary in Northumberland Avenue. 
5.	The claimant was passing peacefully along the road close by the police car at this time. He stopped to observe what was happening. Precisely how close he was to the car is the subject of some dispute but, at the end, it matters not what the exact distance was. It was certainly no more than a few feet. It was not suggested at the hearing of the action that he was doing anything wrong at all. 
6.	Whilst the claimant was in close proximity to the car, police officers in riot gear ran towards the car to assist the occupants. By this point the occupants of the car had managed to escape but the police were not to know this. One officer, whose identity is not known, who was carrying a shield and wielding a baton, came into collision with the claimant, who was knocked to the ground, hitting his head. As a result he sustained a skull fracture and consequently developed serious epilepsy, severe headaches, loss of memory, concentration and motivation, weight gain and disruption of his education. 
7.	It was the claimant's case that the collision was a deliberate assault by the police officer, who had struck him violently to the head with either his baton or his shield. In those circumstances he claimed general, special and aggravated and exemplary damages.
8.	The officer responsible has not been identified but the defendant accepted that there was a collision between an officer and the claimant and that the officer's shield had come into contact with the claimant's face. It was further accepted that this collision was the direct cause of the claimant's fall and his resulting injury. The defendant, however, contended throughout that the collision was neither deliberate nor unlawful.
9.	The trial judge heard evidence from the claimant, who described how he saw from the corner of his eye a police officer running towards him with his baton in the air and his shield by his side. He then said that he felt a cracking blow to his head but he was unable to give any more evidence about the incident than that.
10.	Christian Marsh did not see the claimant's fall at all. Tim Gooden, however, gave evidence of seeing the contact between the police officer and the claimant. It was his belief, expressed in his evidence, that the police officer struck the claimant to the head with the baton. 
11.	No other witness claimed to have seen the incident.
12.	The evidence which was to prove critical at the trial and with which this appeal is primarily concerned came from two video recordings. One was from a television camera and the other from a CCTV camera located on top of the National Gallery which was used primarily for traffic control. I shall refer to these as “the media video” and “the traffic video”.
13.	The media video showed clearly the attack on the police car. It did not, however, show the incident in which the claimant suffered his injuries. 
14.	The traffic video is very much less clear, but it does show the attack on the police car, the advance and charge of the riot police and, significantly, the unidentified police officer running, brandishing his truncheon, towards the police car and colliding with the claimant so that the claimant was knocked to the ground where he lay unconscious.
15.	Morland J in his judgment found that the decision to order riot police to advance and charge the hooligans attacking the car was entirely justified. By that stage, the hooliganism had reached dangerous levels and there was a real risk of serious injury to people and serious damage to property. 
16.	He said of the situation:
“Riot police in a riot situation are themselves under threat and at risk of injury. Judges should be very careful not to impose unrealistic standards of care for the safety of others upon police officers acting on the spur of the moment when carrying out their duties in the stress of a riot. In a rapidly-moving, volatile, dangerous situation it may well be difficult to distinguish between the active, violent rioter and the innocent bystander and those innocent people fleeing for safety.”
17.	As a result, he concluded that he should only find for the claimant if he was satisfied on a balance of probabilities, on convincing evidence, that the claimant was the victim of a deliberate, unlawful assault by the unidentified riot police officer, and that it would not be enough if the claimant had been pushed aside, and fallen as a result, when the officer was rushing towards the hooligans attacking the car.
18.	The judge then reviewed the evidence. Apart from the direct evidence he also considered the fact that the officer had never been identified. He referred to evidence from Tim Gooden, which he accepted, that at the scene complaint was made by a member of the public about what the police officers had done and also he referred to media coverage. Those factors, he suggested, ought to have alerted those involved to the possibility of investigation of the incident from a very early stage. However, he contrasted that with the fact that no intimation of this claim had been given until 18 months after the incident and, even when it was given, it was given in misleading form.
19.	The judge then said:
“In my judgment, the facts that the officer who collided with the claimant remains unidentified and that no police documents relating to the incident have emerged are consistent with the claimant's case that he was the victim of a deliberate, unlawful assault.”
20.	The judge then considered the evidence of Tim Gooden that there was a deliberate blow with a baton. He concluded that this was an “erroneous reconstruction” of what had happened. The judge then expressed himself to be sure that the claimant had not been hit with a baton. He did, however, accept that Mr Gooden “genuinely received the clear impression that the claimant was attacked and that it was not a case of an accidental collision.” Thus the judge reached the conclusion that Tim Gooden's evidence gave some minimal support for the claimant's case, but that it did not of itself raise a prima facie case against the defendant.
21.	Next the judge dealt with the video evidence. He records that Mr Johnson, then acting for the defendant, had submitted that it was the only worthwhile primary evidence and he accepted this submission. His findings about the video film are recorded in the following terms:
“I saw the video film very many times during the hearing. Each time I became more and more convinced that it was no accidental collision, but a deliberate assault upon the claimant who, innocently but unwisely, had stopped to watch the attack on the police car. To me the video film clearly shows the unidentified officer running along the lane marking on the road with a baton in his right hand, well above shoulder height, with his shield raised in his left hand. He veers to his right towards the attacked police car and when the claimant is stationary to his immediate left, the officer turns quickly to his left and charges into the claimant, felling him to the ground. He pauses and looks down at the claimant who is out cold below him. He then side-steps to his right and then prances off to his left with his baton still raised. He ran off in the general direction of The Strand. 
Considering the video film in the context of the evidence as a whole, I am utterly convinced that the claimant was the victim of a deliberate unlawful assault.”
22.	It is the judge's interpretation of the video evidence that is the subject of the challenge in this appeal. The grounds of appeal detail the judge's conclusion that it was necessary to establish that there was a deliberate assault by the police officer before the claimant could succeed, and that a finding of deliberate assault could only be made on the basis of compelling evidence (see Hornal v Neuberger Products Limited [1956] 3 WLR 1034). They further set out that the judge correctly identified the video footage as “the only reliable evidence” to determine whether the allegation was made out. Complaint is then made in the following terms:
“The Learned Judge unjustifiably and wrongly concluded that the video footage of the collision provided sufficient evidence to conclude that there had been a deliberate assault as opposed to an accidental collision or an instinctive defensive reaction by the police officer which caused the Claimant to fall to the ground and sustain injury.”
23.	In the skeleton argument, to which reference is made in the grounds, specific complaint is made about one aspect of the judge's finding in respect of the video evidence. In the course of his judgment, the judge had said:
“...at about 27 minutes and 9 seconds an unidentified police officer in riot gear collided into the claimant, a boy then aged 16 who was standing ten feet or more away from the police car, watching it being attacked.”
24.	Complaint is made that the judge's finding that the claimant was ten feet or more away from the police car is wrong. It is submitted that the video film clearly shows that the claimant was standing some two or three feet away from the police car during the height of the attack and that the video film demonstrates that he was standing very close to the police car, between the offside of the police car and the white line central road marking, when the collision occurred.
25.	Although agreement has now been reached as to the width of the centre lane of the carriageway at that point, I have not found it helpful to speculate as to the precise distance. I do not read Morland J's judgment as in any way finding the distance to be critical to the outcome of the case. The scene is clearly depicted in the video, and the judge's assessment of the distance, whether entirely accurate or not, is purely descriptive of what is shown on the video which he had watched over and over again.
26.	Mr Macleod, on behalf of the defendant, has very helpfully taken us through the traffic video, the crucial parts of which last about 11 seconds. He has described what can be seen by careful study of the video and we have had it played to us on a good number of occasions. 
27.	The unidentified officer, together with other officers, runs towards the scene of the attack on the police car. He is in the front of the group on the left as one looks at the video, which is taken from behind. As he nears the scene of the attack on the police car someone runs across his path, but no collision followed. He then runs on a matter of paces before again another person runs across his path. It is suggested that he collided with that person. That may well be right, although I would not be completely sure that there was actual contact. Certainly he seems to deviate his path to avoid that person and it is as he rounds that person that the claimant is to his left.
28.	It is necessary to record that the judge's finding was that at that moment the claimant was standing still, doing nothing to add to or encourage the attack on the police car. That finding is not the subject of any appeal, and hence the appeal has to be considered on that factual basis. 
29.	Precisely what happened in the next second, or maybe even a fraction of a second, is the subject of the controversy. As already recorded, Morland J found that the officer turned quickly to his left and charged into the claimant, felling him to the ground. 
30.	The claimant did go down, falling backwards in what can only be described as a single sudden movement. There is no sense of him stumbling, losing his balance and falling, but rather that of a person being knocked over backwards with no opportunity to prevent his fall. 
31.	The officer paused momentarily, looking down at the claimant, stepped to his right and then moved to his left with his baton still raised. Morland J described his movement as “prancing” to his left. I can see what the judge means in this regard, although it would be wrong to be over-critical of the officer at this stage, who was in the heat of an ugly incident and who would not be able to predict the reaction of the disorderly youths. Certainly he seemed to demonstrate no lack of enthusiasm for his task but, equally, a show of concern may have been an unhelpful reaction for an officer faced with such a situation. 
32.	The submission made by Mr Macleod is that it is impossible from the video evidence to say that the collision was not an accidental collision or that it was not the result of an instinctive defensive reaction by the officer. Still less, he submits, can it be held that the video film provides evidence of a deliberate, unlawful and aggressive attack on the claimant. 
33.	Mr Macleod further invites the court to consider the motivation of the officer. The question is posed as to why the officer should attack the claimant. Mr Macleod points to the fact that he had his baton in his hand and that he could have used that, either on the claimant or someone else, if he was simply attacking people indiscriminately. He points to the events immediately before contact between the claimant and the officer: the near miss with one youth and what is suggested to be the collision with another. The officer, he submits, rightly, ignored each of those two youths as best he could and continued on his path to the car. It is suggested that if this was an officer minded to attack someone in the vicinity of the attack on the car he did not do so at either of these moments and hence the inference is that he was not deliberately seeking a forceful confrontation with anyone.
34.	I am satisfied that Morland J's approach to this case was a proper one. He was right to remind himself of the difficult situation that confronted the officers on that night and to recognise that judges should not impose unrealistic standards of care for the safety of others upon police officers in such circumstances. One thing that needs to be said is that those who bear the greatest responsibility for the dreadful effect that this incident has had upon a young man's life are the drunken youths who behaved in such a disgraceful way on that night by attacking the police car. No police officer would have chosen to charge to the scene or become involved in any violent confrontation but for the wholly unacceptable behaviour of those youths. Thus Morland J was, as is accepted, right to say that it was only if the evidence in its entirety established clearly that an officer had deliberately and unlawfully used force on the claimant that he could succeed.
35.	The first issue is, therefore, whether the judge was entitled to conclude from the evidence that the collision between the officer and the claimant was the result of the deliberate action of the officer, or whether the evidence is at least equally consistent with it being an accident. 
36.	The evidence was, of course, a long way short of what a judge would choose to have available to him to decide such an important issue. It was of importance to the claimant and equally of importance to the police and to public confidence in the police. There was no evidence from the claimant as to precisely what occurred. The other person involved, the police officer, had never been identified and hence there was no evidence from him. The one eye-witness, the claimant's friend, who had seen some of what had occurred, was shown to be wrong in a material aspect by the video, namely the use of the baton.
37.	Hence it was to the video that the judge had to turn and he had to scrutinise it with the greatest possible care if he was to do justice to all concerned. It is quite clear that that is precisely what he did, watching it many times. As a result, as he described, a growing conviction came to his mind that this was no accidental collision. We too have watched the recording many times, albeit not as many as the trial judge. For my part I found that, as I watched it, my reaction mirrored very closely that of the trial judge. The more I watched it, the more clear it became to me that this was not an accidental collision. I am not sure that I could be as clear as the judge was that the officer turned left and charged into the claimant, but I am confident to a high degree that there was a deliberate and conscious movement away from the line that the officer had been taking, which was intended to and did bring him into heavy contact with the claimant, sending the claimant flying backwards. Whether this was a movement with the officer having turned to face the claimant, or a movement with his shoulder towards the claimant, covered as it was by the shield, matters not. 
38.	Accordingly I am satisfied that the evidence, with all its limitations, was nonetheless adequate for the judge to reach the conclusion that this was not an accidental collision but a deliberate act by the officer. Equally, the judge was entitled to add into this equation on the claimant's side the evidence of Mr Gooden, albeit that he recognised that it had only limited value.
39.	The next issue was whether this could be said simply to be the police officer pushing aside the claimant as he went towards the car to assist its occupants. I am satisfied that the force with which the claimant was struck, bearing in mind the way in which he went down, could never be categorised as a simple push. The judge was entitled to reach the conclusion that he did in this regard and for what it is worth I would have reached precisely the same conclusion.
40.	Finally there is the question whether the use of the deliberate force could properly be characterised as unlawful or whether it might have been the result of an instinctive defensive reaction by the officer. In considering that submission it is first necessary to recognise that the judge's unchallenged finding was that the claimant was standing still and doing nothing but watching. There was no evidence from anyone to suggest that he did anything that might have been interpreted as a hostile act. In those circumstances I find it impossible to see, particularly in the absence of any evidence from the officer, how the judge could have concluded that this apparently hostile act was in fact a defensive action. The situation was confused, the officer had little time to react, but on a balance of probabilities a finding that the officer's actions could be explained in such a lawful fashion was not, in my judgment, open to the judge on the evidence. Thus I conclude the judge was bound to reach the decision that the act was not only deliberate but unlawful. 
41.	I have considered with care Mr Macleod's submissions in respect of motive. What this officer did was in a wholly different category to the indiscriminate use of the baton. An officer who was prepared to throw his body about in the way that the judge found that this officer did might very well be as appalled as any other right-minded person by the unnecessary striking of someone with a baton. Therefore the fact that he did not use his baton on someone in my judgment throws no light on whether his actions were or were not deliberate and unlawful. 
42.	Mr Macleod queried why he should single out this claimant. I do not believe for a moment that he singled out any identified individual. The claimant was standing in close proximity to the attack on the vehicle and may well have been mistaken for one of those who was involved. But that did not justify the officer deliberately driving his shield into him when he was standing doing nothing wrong.
43.	Thus, having carefully reviewed this matter, I am satisfied that the evidence before Morland J was sufficiently clear to justify him reaching the conclusion that he did. Indeed, I for my part would have reached the same conclusion. 
44.	It follows that I would dismiss this appeal. 
45.	I would, however, wish to add just a little to that conclusion to try to ensure that this finding is not misunderstood by the public. A finding of a deliberate assault by a police officer, albeit in a civil and not a criminal context, may conjure up pictures that bear no relationship to this case. Although the claimant suffered a serious injury, I have no doubt at all that that was not in any way the intention of the officer. It was a singularly unfortunate consequence of a relatively minor forceful act. Not only am I sure that the causing of serious injury was not intended, but equally I consider it unlikely in the extreme that the officer intended any injury at all to the claimant. All that this finding amounts to is that the officer deliberately made bodily contact with the claimant in circumstances where that forceful contact was not justified in law. That use of force has to be set against the background where police officers were being sorely provoked by the very violent actions of a gang of youths. The officer, to a very limited degree, overreacted to the situation that confronted him. As I made clear earlier, the major share of blame for this young man's injuries rests with those violent youths. 
46.	LORD JUSTICE THORPE: I agree. 
47.	THE PRESIDENT: I also agree with the judgment that Lord Justice Kay has given and that this appeal should be dismissed. The appeal is therefore dismissed. 
ORDER: Appeal dismissed. The costs of the appeal, including the reasonable costs of the additional evidence to be paid by the appellant. Public funding assessment of the respondent's costs.
(Order not part of agreed judgment)