What constitutes an unreasonable, but not “grossly disproportionate” use of force?

A recent Court of Appeal case shines a light on the use of Section 329 Criminal Justice Act 2003 by police forces seeking to defend the use of unreasonable force and represents a missed opportunity for scrutiny of the level of force acceptable when arresting suspects.

In 1999, Norfolk farmer Tony Martin was convicted of murder, later reduced on appeal to manslaughter, after killing 16 year old Fred Barras who was attempting a burglary at his home. He also wounded Mr Barras’s accomplice Brendan Fearon, who was imprisoned for his role in the burglary.

Mr Fearon later provoked outrage for bringing a claim for damages against Mr Martin for the injuries he had received from his gunshot wounds. Although Mr Fearon’s claim was dropped, the Labour government introduced Section 329 Criminal Justice Act (CJA) 2003 to restrict civil claims for trespass against the person where the claimant was convicted of an imprisonable offence committed on the same occasion.

As well as adding a procedural bar, s.329 provides a defence where the defendant believes:

(1) the claimant had committed, was committing or was about to commit an offence; and
(2) the defendant believed the act was necessary to defend himself or another, protect or recover property, prevent the offence or apprehend or secure the conviction of the claimant.

In these circumstances, s.329 provides that the force would have to be “grossly disproportionate” for any civil claim to be successful; a departure from the traditional position in English law that force used in self-defence has to be reasonable in all the circumstances. This departure from precedent meant there was no previous case law to act as a guide to what “grossly disproportionate” force might entail. At what point does unreasonable force become grossly disproportionate?

Section 329 has seldom been relied upon by desperate householders, defending life and property when confronted by intruders as fortunately this is a rare occurrence. Its principal beneficiaries have been police officers who use force beyond what is reasonable in the course of an arrest. Such was the case in McDonnell v (1) Commissioner of Police of the Metropolis (2) National Crime Agency, heard in the Court of Appeal last week. Mr McDonnell had established in the County Court that the force used in his arrest for possession with intent to supply cannabis, which resulted in a serious fracture to his right arm, was “unreasonable”. However the judge had held it was not “grossly disproportionate” and so relying on s.329 CJA 2003, found in favour of the defendants.

On appeal, given the absence of any guidance as to the meaning of “grossly disproportionate”, Mr McDonnell sought to argue that s.329 ought to be read down and in accordance with the longstanding common law principles of “reasonable force” and European Court of Human Rights jurisprudence on Article 3 of the European Convention of Human Rights, which indicated force used for effecting arrests must not be excessive. In finding that the force used was “unreasonable” but not “grossly disproportionate”, Mr McDonnell had hoped to argue that the judge had erred in law, and given the state’s obligations under the European Convention of Human Rights, any force that was not reasonable had also to be grossly disproportionate.

In the end, the question as to the meaning of “grossly disproportionate” remains unanswered. Notwithstanding the trial judge’s findings having heard all the evidence, the Court of Appeal agreed with the Defendants’ response to the appeal that the force used had in fact been reasonable and therefore the Defendants need not rely on s.329.

The case represents a significant missed opportunity to provide some judicial scrutiny to the level of force police officers, or others, may employ when arresting suspects. It seems that in its current state, the law affords police forces more protection from civil suit than it does its officers from criminal prosecution; in the criminal law the reasonable force standard remains.

The usage of s.329 by the police has departed radically from its original purpose; the protection of private citizens defending themselves from vexatious suit. It also serves as a lesson as to the consequences of legislating in order to be seen to do something in response to a media frenzy. The unintended consequence of this Act is that, it is police forces whose officers overstep the mark in using more force than is necessary receive protection from proper accountability. This was never Parliament’s intention and needs to be challenged.