All of the above is why, if you really want any sort of redress from the Police in England and Wales and you believe you've been treated unfairly or are a victim of Police brutality, the best thing to do is to charge off to your local county court and lodge a civil claim against them. This is because the IPCC, as correctly stated above, can only provide internal sanctions, take disciplinary action, or prosecute the officers concerned. And even this is only in the most serious complaints; the remainder are kicked out to the internal affairs directorates of the various constabularies around the country and only if the complainant appeals against the internal review does the IPCC get involved, and even then is a bit of a damp squib.

However, from a practical legal standpoint, the IPCC does have one very useful function, and one of which it is very, very, heavily advised that you make use:

Free Disclosure.

This is extremely useful because bringing a claim against the Police is not easy. To succeed it is not enough (as many people who ring up our firm asking to sue the basterds seem not to know) to be found not guilty or not to be prosecuted because those respectively could mean that you couldn't be proven beyond reasonable doubt to have done it or that the Police just didn't have enough evidence. The claims that obtain you redress against the Police are things like assault, trespass, and interference with goods, but these are small fry. Often the Police will argue that on the balance of probabilities it was reasonable and necessary and in civil Court, where the standard of proof is merely on the balance of probabilities as I have said, when there's just poor Mr Smith saying that PC O'Brutal beat him senseless with a stair-rod, PC O'Brutal will deny it and say that he was assault in the first place and that the stair-rodding was unorthodox and procedurally incorrect but that he was acting in self defence, it was necessary to subdue a violent man who was resisting a lawful arrest on suspicion of (insert crime), and there'll just be the claimant's word against that of the Police officer, and the Judge will have to make a finding of fact (legalese for saying "I believe X over Y") on this. Even a simple case like this will be robustly defended and costs will be run up in so doing by all parties.

The big claims are, of course, death in custody and/or on a Victoria line train while being a Brazilian electrician, and us mere mortals don't get near those. You only get to handle those claims if you're a big name in the AvP world, and those big names are usually people like Sir Geoffrey Bindman, Gareth Peirce who was best known for defending IRA bods during the Troubles, Nic Madge (before he became a Judge himself), Marc Stephens, and so forth. But even there, the Police will no doubt themselves have big-name AvP lawyers on their side, so it will never be open and shut simply because both sides will fight tooth and nail and run up huge legal costs in so doing. Pathologists will be commissioned by both parties to compile reports. Many pages of witness evidence will be taken. Multi-week High Court trials will be listed, as well as many, many, interim applications when brawling over the evidence before trial and trying at case management hearings to either blast it ahead already or bog it down forever in the hopes that the deceased's relatives will lose heart, run out of money (if paying privately), or fail to convince the Legal Services Commission (if legally aided) that it's likely to succeed. All of this runs up significant costs.

In between the all-too-common stair-roddings and the clearly very serious deaths in custody, there's the middle ground, which, for most people who do AvP, usually criminal lawyers supplementing their income and hoping for the HMS Rodney King to come in (if I ever got onto a huge, high-profile action against the Police on which I was successful and was awarded massive legal costs, I'd spend it on a superyacht and call it this), there's the malicious prosecutions and false imprisonment. Damages for this are significant but not enormous, but they can vary depending on the merits of the case. Malicious prosecution, wrongful arrest, wrongful search, and so forth, are all very finicky actions. For malicious prosecution, for instance, you not only have to have been prosecuted and acquitted (either at first instance or on appeal), but also you have to show that you were prosecuted despite either there being no reasonable belief in your guilt by those prosecuting or that they pushed ahead with prosecution despite their being little to no evidence. And on top of that, you have to show malice (which can be indicated, on the balance of probabilities, by things such as falsifying notes, covering up inconsistencies in evidence, failing to disclose material to the Defendant, or even just plain ol' perjury). Needless to say, these things are very difficult to advise on the success of at first, but undertaking such a claim will be expensive for all involved.

And all of this is why going and making a complaint through the IPCC, even though they're ineffectual and often slapdash, if not flat out suspect, is very well advised. Firstly, by making a complaint you can get your hands on documentation produced or obtained by the Police over the incident complained of before running up any substantial legal costs. Police forces go ahead and do their internal investigation and fire all their paperwork around, not necessarily realising that it's either disclosed already or would become disclosable were it to go to Court, whereas if a claim was launched, they would no doubt immediately obtain legal advice, and that legal advice would include how they could make reasons as to why that one document that props up the Claimant's entire case should not be disclosed or similar. They also would no doubt be advised of exactly what to put into their evidence to avoid admitting liability. At the complaints stage, this would not necessarily be the case.

As I have previously indicated elsewhere, the law is not about justice, it is about dispute resolution. This is because for it to be about justice it would require there to be an infallible method for ensuring that everyone party to a case is truthful. No such method exists. As such, the IPCC exists to resolve these disputes and also as a form of indirect filter. From the response served by the IPCC to a complaint or appeal one can have a pretty good gauge of whether a civil claim is likely to succeed. An IPCC or even internal decision criticising or disciplining an officer may appear toothless, but it might just put the Judge in the civil court into the mood to accept that there was malice in a malicious prosecution, or that it wasn't necessary to stair-rod the Claimant half to death. However, if the IPCC comes back and exonerates the officers complained of, it may be advisable simply to give up and go home even if you are telling the truth before running up huge legal costs both for yourself and for the Police (which you will have to pay if you fail) because there's just a plain dearth of evidence. I agree the IPCC isn't the most effective of bodies but it is not there for people to obtain justice or redress. It is basically a glorified mediation service. However, it has its uses, and first amongst those is as an early indicator of whether your claim is likely to hold water or not so you can make an informed decision before whacking in your Claim Form and spending money on lawyers.

Needless to say, if I or anyone else advised an AvP client simply to charge off to Court without investigating the merits of a claim properly, I'd be negligent.

(IRON NODER 2011, 27/30)

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