Dilon Curwen v Chief Constable of Cumbria Constabulary

In civil claims arising from police use of force, the defendant must establish that the officer honestly believed force was necessary, that belief was objectively reasonable, and that the degree and nature of force were objectively reasonable and proportionate in the circumstances as perceived at the time. Separate uses of force during a rapidly evolving incident should generally be assessed cumulatively, while maintaining focus on each individual officer’s conduct. The police are allowed a margin for error in fast-moving situations. A person is not imprisoned merely because an officer initially lays hands on him to gain control, where he remains capable of escaping and is not under legal restraint. A duty based on a danger created by the police does not arise where officers reasonably respond to a danger originating from the claimant.

The claimant, who had bipolar disorder, was confronted by three police officers after being reported in possession of a knife in a public place. He was tasered repeatedly, sprayed with PAVA and eventually handcuffed after resisting the officers’ attempts to restrain him. He suffered serious injuries, including a skull fracture and traumatic brain injury.

He brought claims for false imprisonment and wrongful arrest, assault and battery, and negligence. Liability only was tried. The principal issues were whether detention occurred before handcuffing, whether the arrest and detention complied with the Police and Criminal Evidence Act 1984, whether the force used was excessive or unreasonable, and whether the police owed and breached a duty of care before handcuffing.

1. False imprisonment and arrest. Imprisonment requires sufficient physical or legal restraint so that the claimant can no longer decide where to go. The initial laying on of hands was intended to gain control, not to arrest, and the claimant repeatedly escaped or remained capable of doing so until handcuffed. Detention therefore began no earlier than handcuffing.
2. Any earlier failure to comply with sections 24 and 28 of the Police and Criminal Evidence Act 1984 consequently did not arise. Alternatively, the evidence established reasonable grounds for believing that arrest was necessary, and it was reasonable in the circumstances not to announce arrest during the rapidly unfolding struggle. The handcuffed detention was not rendered unlawful by the absence of words and grounds of arrest, given the claimant’s unresponsive and confused condition.
3. Assault and battery. The three-stage test in Afriye v Commissioner of the City of London Police, [2024] EWCA Civ 1269, required consideration of: the officer’s honest belief in the necessity for force; the objective reasonableness of that belief; and whether the degree and nature of force were objectively reasonable and proportionate. The assessment had to reflect the circumstances as they appeared to each officer, without hindsight.
4. In a short, evolving incident, each use of force should be assessed in the light of what had gone before, rather than compartmentalised. The court must nevertheless focus on whether each individual officer acted unreasonably. Applying that approach, the first Taser discharge, angled drive stun, PAVA deployment and later Taser uses were each reasonable and proportionate, notwithstanding the tragic outcome and the benefit of hindsight. The officers were entitled to a margin for error.
5. Negligence. Before handcuffing, the police did not create the danger relied upon. They responded reasonably to the pre-existing danger created by possession of a knife in public. No separate negligence liability therefore arose for that period. A possible post-handcuffing issue concerning first aid and assistance was left undecided because it was bound up with causation and quantum.
6. The claims for false imprisonment, assault and battery, and negligence before handcuffing were dismissed.