McDonnell v The Commissioner of Police for the Metropolis & Anor

The objective reasonableness of force used to effect an arrest depends principally on the act and the circumstances confronting the officer. Relevant circumstances include the suspected offence, the perceived risk of weapons or escape, the urgency of intervention and compliance with recognised police practice.

The severity of an unintended injury does not by itself establish that the force was unreasonable, excessive or disproportionate. A court must avoid placing undue weight on the outcome where the officer intended to restrain the suspect but did not intend to cause injury.

The claimant received a kilogram of cannabis while under surveillance. A plain-clothes police officer believed that the package contained cocaine and that the claimant might enter his home to escape, destroy evidence or obtain a weapon. The officer used a rear take-down technique near the front door. The claimant’s shoulder struck either a wall or the ground, causing a fractured humerus.

The Central London County Court found the force unreasonable and excessive under section 117 of the Police and Criminal Evidence Act 1984 and section 3 of the Criminal Law Act 1967. It nevertheless dismissed the assault claim because the respondents established the defence under section 329 of the Criminal Justice Act 2003.

The claimant appealed against the section 329 ruling. By a Respondents’ Notice, the respondents challenged the finding that the force was unreasonable. The Court of Appeal considered that challenge first because, if successful, the issues concerning section 329 and Convention compatibility would not arise.

1. The decision dismissing the claim was upheld and the appeal was dismissed. Bean LJ, with whom McFarlane and Aikens LJJ agreed, upheld the Respondents’ Notice. The trial judge had been plainly wrong to find that the force was unreasonable and excessive.

2. The Court of Appeal was entitled to re-examine the trial judge’s evaluation of reasonableness in the light of his findings of primary fact. Those findings showed that the officers honestly believed the claimant possessed a kilogram of cocaine with intent to supply. They also believed that he might escape, destroy evidence or gain access to weapons inside the house. He was close to his front door, and the arresting officer had to act very quickly.

3. The reasonableness assessment had to recognise the dynamic circumstances confronting the officer. The arresting officer honestly believed that taking the claimant to the ground was necessary to apprehend him and protect himself. He also followed the relevant police safety manual. In those circumstances there was no realistic opportunity for a finely calibrated choice of force.

4. The trial judge had no adequate basis for finding that the officers could have prevented the claimant from entering the house without taking him to the ground. His other factual findings pointed in the opposite direction.

5. The trial judge placed too much emphasis on the injury and its severity rather than on the act of taking the claimant to the ground and its surrounding circumstances. The officer intended to restrain the claimant, not to injure him. The shoulder’s collision with the wall was accidental. The resulting fracture did not make the force unreasonable, excessive or disproportionate under section 117 of the Police and Criminal Evidence Act 1984 or section 3 of the Criminal Law Act 1967.

6. Because the force was reasonable, the interpretation of section 329 of the Criminal Justice Act 2003 and its compatibility with the Convention did not arise.

1. Court of Appeal (Civil Division): The court upheld the Respondents’ Notice and affirmed the dismissal of the assault claim, although on the ground that the force used was reasonable. The appeal was dismissed: [2015] EWCA Civ 573.
2. Central London County Court: His Honour Judge Madge found that the force was unreasonable and excessive but dismissed the claim because the respondents had established a defence under section 329 of the Criminal Justice Act 2003.