Anthony Jones v Chief Constable of Essex Police

Permission under section 329 of the Criminal Justice Act 2003 requires evidence giving the claim a real prospect of success. The court must undertake sufficient analysis of the evidence to decide whether a finding of grossly disproportionate force is realistically available, but must not conduct a mini-trial. Gross disproportionality is assessed judicially as a mixed question of law and fact, by broad evaluation of all the circumstances. Expert evidence may assist in an appropriate case, but cannot usurp the court’s evaluative function. Where the evidence overwhelmingly shows a dangerous and rapidly developing arrest situation, a claimant’s unparticularised expert opinion may be insufficient to satisfy the permission threshold.

The claimant sought damages for alleged assault or trespass to the person during his arrest by Essex Police on 30 July 2021. He had pleaded guilty to an imprisonable public-order offence committed on the same occasion. Section 329 of the Criminal Justice Act 2003 therefore required permission before civil proceedings could be brought.

Permission was granted without notice shortly before the limitation period expired. The defendant applied in time to set aside that order. The central issue was whether the claimant had evidence giving him a real prospect of establishing that the force used during the arrest was, in all the circumstances, grossly disproportionate.

1. The defendant’s application was treated as a rehearing of the without-notice application. Under Riverpath Properties Ltd v Brammall, The Times, 16 February 2006, the defendant did not bear a burden of proving that the force was not grossly disproportionate. The claimant had to satisfy the court that there was evidence on which a court could make that finding and that the claim had a real prospect of success.

2. The approach in Buike v Chief Constable of West Yorkshire Police, [2009] EWCA Civ 971, applied. The court was not to conduct a mini-trial, but some consideration of the evidence was essential. The relevant threshold was analogous to the real-prospect test for reverse summary judgment.

3. Gross disproportionality had to be assessed in all the circumstances, applying McDonnell v The Commissioner of Police for the Metropolis, [2011] EWCA Civ 573. The court also considered the point in Minio-Paluello v Commissioner of Police, [2011] EWCH 3411, that officers may be unable to weigh precisely the exact measure of necessary action.

4. The evidence showed repeated warnings that the officers were armed police, repeated commands to stop and lie down, reports that the claimant was armed with a knife and threatening members of the public, and continued resistance and attempted fence-climbing. The circumstances were inherently dangerous. The question was not whether other actions might have been more helpful, but whether the force used was grossly excessive in those circumstances.

5. Gross disproportionality was a mixed question of law and fact requiring judicial assessment. The use-of-force expert’s report was materially weakened by reliance on post-dated professional guidance, acceptance that some force was justified, and conclusions inconsistent with the body-worn video. The expert could not determine the statutory question for the court.

6. The claimant’s evidence did not give him a real prospect of establishing grossly disproportionate force. The injury-causation issue alone would not have justified refusing permission and required further medical evidence, but the permission requirement failed on the gross-disproportionality issue. The order granting permission was set aside and permission to issue proceedings was refused.

First-instance decision. The judgment records an earlier without-notice permission order in the same proceedings, which was set aside on rehearing.