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Jo C.
Jo C., Barrister
Category: Law
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Experience:  Over 5 years in practice
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My son was filming the police using undue force and being

Customer Question

My son was filming the police using undue force and being overly aggressive in arresting his friend who was not offering any resistance and who was subsequently released without charge. My son was asked to stop filming by an officer but continued saying he was allowed to do so. He stepped back and continued filming from acrosst the street. The police then charged him from the side out of his pheriferal vision whilst he was still filming, got him to the ground, peppered sprayed him and confiscated his phone and demanded his PIN number. In the skirmish the police have said that my son has assaulted them and charged him with a public order offence, and two accounts of assault and common assault on the officers. I believe his initial arrest was unlawful and the two officers have closed ranks and given identical accounts how they were assaulted. My son adamently refutes the police officers version of events. My son was protecting his friend by filming the initial incident and it seemed that the police were intent of seizing his footage in order to protect themselves. The case goes to trial soon and the police still have not returned his phone so he can check the footage. Does my son have a defence?
Submitted: 5 months ago.
Category: Law
Expert:  Jo C. replied 5 months ago.

Well, he does if his account is accepted. The reality is that we both know what Magistrates are like and probably they will disbelieve him. Not always in fairness but far too often.

Expert:  Jo C. replied 5 months ago.

That is why it is never a good idea to let this situation develop. There are lots of offences that cover quite mild antagonistic behaviour like obstructing. The police have far too much power and sometimes they abuse it and the way they head of complaints is often to claim assault.

Mind you, in fairness, that is how women escape the consequence of their behaviour all the time so it is not just the police.

If he was filming from a distance though and not encouraging others to intervene or otherwise obstructing the officers in any way then I cannot immediately see a justification for arrest. I suppose I haven't heard their account though. I don't know whether they are saying they were trying to seize the phone as evidence.

Expert:  Jo C. replied 5 months ago.

the reality is that it is quite unlikely that they will accept that they charged at him when he was doing nothing to obstruct at all.

However, if you can get over that hurdle then any assault would be unlawful and he would be entitled to resist.

The only other thing I can think of is that they are saying that they were trying to arrest him for the initial obstructing. It is possible to argue that filming an incident very close to that incident has the effect of obstructing an officer. You don't have to do very much to obstruct an officer. Anything that makes his task harder is caught. Filming could have the effect of emboldening the crowd. But not really from a distance.

the footage on the phone isn't really relevant to this incident though. He isn't saying that he was acting in defence of another at the time they arrested him?

Can I clarify anything for you?

Jo

Customer: replied 5 months ago.
They did say they were seizing it in evidence but as no offence had been committed and his friend was released without charge then no offence had been committed. If an arrest was unlawful and thpolice were not acting in accordance with their powers, can they say that he assaulted them when thy arrested him? They seemed intent on seizing his phone and arrested him on a trumped up charge in order to acquire it.
Customer: replied 5 months ago.
He was filming from across the street
Expert:  Jo C. replied 5 months ago.

No, it is not right to say that just because nobody was charged no offence is committed. It just doesn't follow logically.

Expert:  Jo C. replied 5 months ago.

One can still obstruct a police officer even though no person was arrested.

Expert:  Jo C. replied 5 months ago.

I would imagine the way they will escape is to say that they were trying to seize evidence under PACE and he resisted which is the assault.

On the face of it, he doesn't have a defence to that - if that is the way they are running this.

Customer: replied 5 months ago.
what you are saying is basically he's on a hiding to nothing!
Expert:  Jo C. replied 5 months ago.

It is never easy to win these things which is why you should always avoid antagonising officers.

I don't go to the Magistrates much anymore. I used to find that you almost never won on a dispute over fact but you could sometimes get them to admit they had acted unlawfully largely because they don't usually know the law.

It is always a low chance though I'm afraid.

If they are saying they were seizing evidence and he accepts resisting then that is an offence.

Customer: replied 5 months ago.
Can they seized evidence when a crime has not been committed. The only footage on the phone would show the police using undue force and aggression to my sons friend. He believes they wanted the phone to erase the evidence. It comes to trial in a few weeks and despite repeated requests they have still failed to produce the footage. Also we requested CCTV evidence in the street and the police said the cameras were pointing in the opposite direction. We also asked for the footage from the officers jacket can and they say that it got dislodged and there is no footage
Expert:  Jo C. replied 5 months ago.

Yes.

Expert:  Jo C. replied 5 months ago.

They only have to show they were investigating.

And anyway the fact there was no charge does not mean no crime has been committed.

Expert:  Jo C. replied 5 months ago.

They wanted the phone because they use phone seizures to punish people who are filming them.

Of course, they shouldn't do that but it is a common practice of the police.
I'm afraid it is why it is never a good idea to antagonise them.

Customer: replied 5 months ago.
OK thank you
Expert:  Jo C. replied 5 months ago.

No problem.

All the best.

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