Gerber v The Commissioner of Police of the Metropolis

In a civil claim involving police detention and use of force, the judge may withdraw an issue from a jury where, taking the claimant’s case at its highest, the only rational conclusion on the evidence is that the relevant suspicion or force was lawful and reasonable. Factual disputes need be left to the jury only where they are relevant and capable of affecting the legal determination. Reasonable grounds for suspicion are assessed objectively, while the officer’s belief must be honest. An allegation of racial bias requires an evidential foundation and cannot rest on counsel’s assertion alone. In an urgent firearms operation, force may be reasonable and proportionate where it accords with the circumstances, the perceived threat and the officer’s training.

The claimant brought proceedings for assault and false imprisonment arising from a police firearms operation on a train. Police officers mistakenly identified him as a man believed to be carrying a gun, pointed a firearm at him and pressed a taser against his chest for less than 30 seconds.

After the evidence at trial, HHJ Freeland QC discharged the jury, ruled that the defendant had established honest belief, objectively reasonable grounds for suspicion and reasonable use of force, and dismissed the claims. The claimant appealed, arguing that factual issues concerning the description, racial bias and the use of the taser should have been left to the jury.

1. Appeal dismissed. The judge was entitled to determine the issues without a jury because the proposed questions were either irrelevant or could not affect the legal conclusions.
2. For false imprisonment, the defendant had to prove both honest belief and objectively reasonable grounds to suspect the claimant. The judge, rather than the officer, determined which facts were relevant and requisite to objective reasonableness. The description of a black man wearing a black hat and black coat, the claimant’s location, demeanour and movement to his right provided ample grounds for suspicion. The shirt and tie issue was therefore superfluous.
3. The allegation of subconscious racial bias had no evidential foundation. The evidence showed that the officers acted on the description, the claimant’s demeanour and the perceived movement towards a weapon. The ruling that no racial-bias question could properly be left to the jury was not erroneous. The reasoning in Paul v Chief Constable of Humberside [2004] EWCA Civ 308 did not assist because the judge had made a considered ruling on the evidence.
4. As to the taser, the judge applied the approach in McPherson v The Chief Constable of Nottinghamshire Police [2016] EWCA Civ 6. The issue could be withdrawn where the only finding properly open to the jury was that the force was reasonable. The contact stun was less lethal force, accorded with the officer’s training, protected against the risk of a firearm and avoided the danger of an uncontrolled barb in the confined carriage. It was therefore reasonable, necessary and proportionate. The alternative issue identified in [2016] EWCA Civ 6 at [18] did not need to be decided.
5. The judge was accordingly justified in entering judgment for the defendant, and both grounds of appeal failed.

• High Court (Queen’s Bench Division): Appeal from the order of HHJ Freeland QC in the Central London County Court dated 8 May 2018. Appeal dismissed.
• Central London County Court: The claimant’s claims were dismissed and judgment was entered for the defendant.