Kenyon v The Chief Constable of Hertfordshire

Section 329 of the Criminal Justice Act 2003 may provide a defence to civil proceedings for assault brought by a convicted offender, including proceedings against a police officer. The defendant must prove both the statutory honest-belief and necessity conditions and that the act was not grossly disproportionate. The belief and necessity conditions concern the defendant’s honest subjective belief. Gross disproportionality requires an objective assessment in all the circumstances, taking account of relevant findings on those conditions and, where relevant, the defendant’s intention to cause injury. A trial judgment must make sufficiently clear findings on each statutory requirement. Where it does not, the appropriate appellate course may be remission for reconsideration rather than determination of the factual issue by the appeal court.

The claimant brought proceedings for personal injuries after a police officer struck him three times with a baton during the execution of an arrest. The claimant had subsequently pleaded guilty to offences arising from the incident. The trial judge found that the baton strikes were unnecessary, unreasonable and grossly disproportionate, and entered judgment against the defendant police authority.

The defendant appealed on the interpretation and application of section 329 of the Criminal Justice Act 2003, contending that the trial judge had failed to take account of the officer’s honest belief, the statutory necessity requirements and his lack of intention to injure when assessing gross disproportionality. The central issue was whether the trial judgment contained the necessary findings under section 329(5) and section 329(4)(b).

1. The appeal was allowed to the extent necessary for the case to be remitted to the trial judge for reconsideration and a fresh decision.

2. The parties agreed that section 329 of the Criminal Justice Act 2003 applied and provided a potential defence. The defendant bore the burden of proving, on the balance of probabilities, that the officer acted only because of an honest belief that the claimant was committing, about to commit or had immediately committed an offence, and an honest belief that the act was necessary for one of the statutory purposes. The defendant also had to prove that, in all the circumstances, the act was not grossly disproportionate.

3. The honest-belief and necessity requirements involved consideration of the officer’s subjective belief. The assessment of gross disproportionality was objective. In carrying out that assessment, the court had to consider all relevant circumstances, including its findings under section 329(5)(a) and (b) and, where relevant, whether the officer intended to cause injury.

4. The trial judge had made detailed and unchallenged factual findings. She had also correctly concluded that section 117 of the Police and Criminal Evidence Act 1984 and section 3 of the Criminal Law Act 1967 did not justify the baton strikes.

5. However, the judgment did not expressly record the necessary findings under section 329(5)(a) and (b), nor did it expressly explain whether those findings had been taken into account in assessing gross disproportionality or address the officer’s intention to injure. It was therefore unclear whether the statutory questions had been properly determined. The appropriate course was remission to the trial judge, who had heard and seen the evidence, to reconsider the judgment in light of the appellate guidance.

• High Court (Queen’s Bench Division): The defendant’s appeal was allowed to the extent that the matter was remitted to the trial judge for reconsideration and a fresh decision.
• Trial court: HHJ Walden-Smith had found that three baton strikes constituted an unlawful assault and were grossly disproportionate.