|Crown Court ~ Teesside|
In May 2012, Sergeant Harvey was convicted at Teesside Magistrates Court of common assault - (a common law offence which is triable summarily - see Criminal Justice Act 1988 section 39). It is clear from the video that Mr Healer was not co-operating with the Police and was unwilling to answer questions. Sergeant Harvey argued in court that he had used reasonable force only.
There is a right of appeal to the Crown Court against conviction in the Magistrates' Court and such appeals are heard by a Judge sitting with two Magistrates. Sergeant Harvey appealed but lost the case and so remains convicted of common assault - - see The Northern Echo 15th October. A fine of £400 was imposed, compensation awarded of £50 and appeal costs of £600 and a "surcharge" of £15 was also applied. Another defendant (Michael Mount) was acquitted by the Crown Court. The Magistrates' Court had actually awarded £100 in compensation which was divided equally between the two defendants.
The sentencing court has to consider the principles of sentencing set out in the Criminal Justice Act 2003 and also every court is under a statutory obligation to follow any relevant Council guideline unless it would be contrary to the interests of justice to do so. An award of compensation must also be considered and reasons given if it is not awarded.
The CJA 2003 sets out the purposes of sentencing (section 142); determining seriousness (section 143); reduction in sentence for guilty pleas (section 144); general restrictions on custodial sentences (section 152) and general restrictions on length of custodial sentences (section 153).
The latest guidelines for Common Assault are in the Magistrates' Courts Sentencing Guidelines (page 213) but these apply only where the offence is committed after 13th June 2011. This offence was committed in March 2011 (BBC News Tees report of the case in the Magistrates Court) and so older sentencing guidance would apply - CPS Common Assault Pre-June 2011.
On the older guidelines the primary factor was the seriousness of the offence (including the impact on the victim). The guideline listed aggravating and mitigating factors relating to the offence. For example, injury and offender in a position of authority raised the seriousness and impulsive action, provocation lowered the seriousness. Once the court had decided the seriousness level, any offender mitigation was taken into account - e.g. general good character, evidence of remorse etc.
It seems rather surprising that there has been little comment about the sentence being a fine as opposed to, for instance, a community sentence. It seems that the Sergeant had an exemplary record even though he did not, on this occasion, adhere to Police Professional Standards. The court probably thought that a fine would mark the fact of conviction which, for a serving Police Officer, is particularly serious since other disciplinary action is possible. Unfortunately, the reasoning of the court on this is not publicly available.
Fines are based on "Relevant weekly Income" and where an offender is in receipt of income from employment or is self-employed and that income is more than £110 per week after deduction of tax and national insurance (or equivalent where the offender is self-employed), the actual income is the relevant weekly income. On this basis, a fine of £400 after full trial seems low - see Police Pay scales
Right to silence:
The basic rule of English law that a person need not answer any questions remains intact. The problem for those who do so is that the court (magistrates or jury) may draw such inferences from the failure as appear proper - Criminal Justice and Public Order Act 1994 section 34 to 39 and subsequent case law. Unless there is adequate explanation for a failure to answer questions it is, of course, likely that the court will infer that the defendant was hiding something.
Liberty - Curtailment of the Right to Silence
A right of civil action:
An assault is not only a criminal offence but is also the tort (civil wrong) of trespass against the person entitling the individual to bring a civil action for damages. It was reported that such an action was likely. In such a case, if the claimant is successful, the possibility of exemplary damages might arise - that is, damages intended to punish and deter as opposed to being merely compensatory. The modern law on such damages stems from the House of Lords decision in Rookes v Barnard 1964 where Lord Devlin set down the situations in which exemplary damages might be awarded.
Lord Devlin considered the history of the caselaw and said that there were two categories of cases under the common law in which an award of exemplary damages could serve a useful purpose.
1) Oppressive, arbitrary or unconstitutional action by the servants of the government – but Lord Devlin made it clear that such action did not extend to private individuals or corporations.
2) Where the Defendant’s conduct had been calculated by him to make a profit for himself, which might well exceed the compensation payable to the Claimant.
In addition, exemplary damages could be awarded under statute.
Lord Devlin expressed three considerations, which he thought should always be borne in mind when awards of exemplary damages were being considered:-
The Claimant could not recover exemplary damages unless he was the victim of the punishable behaviour.
The power to award exemplary damages was a weapon, which whilst it should be used in defence of liberty could be used against liberty. The award should not be greater punishment than that allowed under the criminal law.
Thirdly the means of the parties were material in the assessment of exemplary damages.
A further possibility is that Article 3 rights were breached and, if so, there might be an action under the Human Rights Act 1998 section 7. It is usually necessary to commence such actions within a year - see s.7(5).
It is reported that Sergeant Harvey has since left the Police and so disciplinary action is avoided - The Northern Echo 15th October
On this see the report at Police Oracle relating to the retirement of Sir Norman Bettison
Police disciplinary processes are subject to Regulations and new regulations come into force in November 2012 - The Police (Complaints and Misconduct) Regulations 2012 . Any action in cases prior to the commencement of the 2012 regulations would be conducted under the Police (Complaints and Misconduct) Regulations 2004 (as amended).