McDonnell v The Commissioner of Police for the Metropolis & Anor

When assessing whether police force used during an arrest was reasonable, excessive or disproportionate, the court must assess the act in the circumstances confronting the officer at the time. Relevant considerations include urgency, the officer’s honest assessment of risk, proximity to an escape route or evidence, possible access to weapons and compliance with recognised safety procedures. Injury and its severity are relevant but cannot determine the issue. Accidental injury caused by the impact of a justified takedown does not, by itself, make the force unreasonable. An appellate court may re-examine the evaluative conclusion where it is inconsistent with the trial judge’s primary findings.

Michael McDonnell claimed damages for assault after a police officer took him to the ground while arresting him outside his home. He suffered a fractured arm. The Central London County Court found that significant force had been used and that it was probably unreasonable and excessive under section 117 of the Police and Criminal Evidence Act 1984 and section 3 of the Criminal Law Act 1967. However, the judge found that the statutory defence under section 329 of the Criminal Justice Act 2003 was made out and dismissed the claim.

The respondents challenged the finding that the force was unreasonable. The central issue was whether the trial judge’s evaluative conclusion was sustainable in light of his primary findings about the officers’ beliefs, the urgency of the arrest and the surrounding risks.

Lord Justice Bean delivered the judgment. Lord Justices McFarlane and Aikens agreed.

1. Appeal dismissed. The dismissal of the claim was upheld on the basis advanced in the Respondents’ Notice.
2. An appellate court was not precluded from re-examining the trial judge’s evaluation of whether the force was reasonable when that evaluation could be tested against the judge’s own findings of primary fact. The Court of Appeal was therefore entitled to reconsider the conclusion that the force was unreasonable and excessive.
3. The relevant findings pointed decisively towards reasonable force. The officer honestly believed that the claimant possessed a large quantity of drugs, was close to entering his home, might attempt to escape or destroy evidence, and might have access to weapons. The officer believed that immediate action was necessary to apprehend the claimant and protect himself. He had followed the relevant police safety manual.
4. The trial judge had placed too much emphasis on the result of the force, namely the fracture and its severity, rather than on the act of taking the claimant to the ground and the circumstances in which it occurred. The injury resulted partly from the force and partly from the claimant’s shoulder striking the wall or ground. The officer intended to bring the claimant down, not to inflict injury. In the dynamic circumstances there was no scope for a finely calibrated choice of force. The force was not unreasonable, excessive or disproportionate.
5. The Court of Appeal did not determine the interpretation of section 329 of the Criminal Justice Act 2003 or its compatibility with the ECHR, because those issues did not arise once the respondents’ challenge to the finding on reasonable force succeeded.

1. Court of Appeal (Civil Division): On 14 May 2015, the court upheld the dismissal of the claim, reversing the trial judge’s evaluation that the force was probably unreasonable and excessive. [2015] EWCA Civ 565
2. Central London County Court: His Honour Judge Madge dismissed the claim after finding that the force was probably unreasonable and excessive, but that the statutory defence under section 329 of the Criminal Justice Act 2003 was established.