Does the current law protect police drivers who use force to stop motorcyclists?

Does the law protect police drivers from prosecution?

 The Metropolitan Police – that’s the one’s in London if you didn’t know – have released a video showing their officers using police cars to ram moped and motorcycle riders from their bikes. Watching the video with no context you could be forgiven for concluding that these are unreasonably heavy handed tactics that put lives at risk; however, police officers who I trust to know about these things have told me that these tactics are only used to end protracted chases where members of the public are put at risk and to catch the most dangerous offenders. The police conduct risk assessments as events are unfolding both by officers involved in the pursuit and by senior officers back at the police station monitoring events.

This post is not about whether those tactics are right or wrong, instead I want to look at the potential legal consequences for police officers taking these actions and what, if anything, the law can do to protect them.

Ramming other vehicles off the road is not something you would expect a careful and competent driver to do, which is a problem for police officers because those whose driving falls below the standard of a competent and careful driver commit criminal offences. The first is careless driving, aka driving without due care and attention, but if the standard of driving is far below the expected standard then the driver is guilty of dangerous driving.

Where the actions of a driver cause serious injury or death the driver may also be guilty of causing death by dangerous driving or causing serious injury by dangerous or careless driving.

Dangerous driving carries a penalty of up to two-years imprisonment while causing death by dangerous driving carries a maximum sentence of fourteen-years imprisonment and both offences carry minimum driving disqualifications of a year and two-years respectively, so you can see that these are very serious offences.

The test for dangerous driving is that the standard of driving falls below that which would be expected of a careful and competent driver and it would be obvious to a careful and competent driver that driving in that way would be dangerous. The test is aimed at the driving itself rather than the defendant’s state of mind at the time of the alleged offence and it is an objective test. Thus, a court cannot consider factors such as the driving experience, training or qualifications of the driver when assessing whether a particular piece of driving was dangerous or not. This was the view of the Court of Appeal in R. v Collins (Lezlie) [1997] R.T.R. 439 when they upheld the conviction of a police officer for causing death by dangerous driving, which occurred during a police pursuit.

In a situation where a police officer deliberately rams a vulnerable road user, such as a moped rider, off their bike it is difficult to see how that would not fulfil the test for dangerous driving. So next we must ask ourselves whether the law does anything to protect officers using this tactic?

The police are permitted to use reasonable force when exercising their powers. Section 3(1) of the Criminal Law Act 1967 states:

“A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders…”

For the sake of clarity, I will say at this point that a person obviously includes a police officer.

In the case of R. v Renouf (John William) (1986) 82 Cr. App. R. 344, the Appellant had been convicted of reckless driving under section 2 of the Road Traffic Act 1972 – an offence known properly at the time as reckless and dangerous driving but which has now been replaced by dangerous driving under the Road Traffic Act 1988. Mr Renouf had been attacked on a petrol forecourt by men in another vehicle throwing objects at him that injured him and damaged his car. Mr Renouf gave chase and forced the other vehicle from the road by ramming it. He was convicted in the Crown Court at Winchester of reckless driving after Mr Justice Bristow refused to allow Mr Renouf to argue before the jury that section 3(1) of the 1967 Act entitled him to use force to apprehend his attackers. The case was appealed and the Court of Appeal held that Bristow, J. was wrong not to leave the defence to the jury and Mr Renouf’s conviction was quashed.

In the more recent case of R. v Attwater (Mark Victor) [2010] EWCA Crim 2399, Mr Attwater was convicted after he forced another vehicle to stop by undertaking it and braking hard directly in front of it so as to prevent its driver, a Mr Holding, from escaping the scene of an earlier crash. Mr Attwater was convicted of dangerous driving and the Court of Appeal upheld his conviction on the basis that the offence of failing to stop was already complete by the time he drove dangerously. Their Lordships in the Court of Appeal took a very narrow view in Mr Attwater’s case by focusing solely on the “prevention of crime” aspect of section 3(1). That appears to have been the route taken by his advocate in oral argument and is understandable in law because Mr Attwater would not have had a lawful power to effect an arrest on Mr Holding and, indeed he did not attempt to arrest Mr Holding. He therefore could not argue that he exercised the section 3(1) power to effect an arrest on Mr Holding. This is because section 24A of the Police and Criminal Evidence Act (PACE) 1984 only permits a citizen’s arrest where the offender is in the act of committing an indicatable only offence (i.e. one that can only be tried in the Crown Court) or where he is reasonably suspected of being in the process of committing such an offence. Mr Attwater suspected Mr Holding of failing to stop after an accident, which is a summary only offence (i.e. one that can only be tried in the magistrates’ court). It also cannot have helped Mr Attwater’s case that at the time he drove dangerously he had no knowledge of the power under section 3(1) and admitted that he was just very angry because something similar had happened to him in the past and that time the other driver got away. Neither of these problems apply to police officers engaged in pursuits of suspects.

On a technical and historic note it is worth remembering that when Mr Renouf’s case was heard section 24 of PACE 1984 allowed anybody to make an arrest where the offence was deemed an “arrestable offence”, a distinction that has since been abolished. In 1986, the assault suffered by Mr Renouf would have constituted an arrestable offence, given that it occasioned actual bodily harm upon him, and so he was able to rely on the wider ambit of the section 3(1) defence. Even under the old law, Mr Attwater would not have been able to argue that he had a power to arrest Mr Holding so could never have brought himself within the purview of the defence.

So, we can see that a police officer attempting to effect an arrest on a suspect would be able to rely on the section 3(1) defence. The problem, in my opinion, arises in situations where there is a question mark over the level of force used. Let’s take what Commander Amanda Pearson said when the Met Police announced this policy, “there is a perception that if you remove your helmet [while riding a motorcycle] or fail to stop for police when requested to do so we will not take any further course of action. This is untrue.” People coming off of motorcycles at speed with no head protection are at high risk of serious head injuries. These are the sort of injury that could be life changing or even life ending. That must, in my opinion, have an impact on whether ramming a motorcycle would be reasonable and must mean that the risk to the public has to be very real and immediate such that ceasing the pursuit would not be a more effective way to remove the risk to others. There is, to my knowledge, no case law on this point at present.

Looking around the internet, I have been unable to find many examples of police officers using cars to ram motorcyclists from the road. The one example I could find involved Deputy James Vansant whose patrol car came into contact with Robert Clark’s motorcycle following an eight-mile chase after Mr Clark was seen speeding. Deputy Vansant’s car made contact with the motorcycle twice causing Mr Clark to lose control and crash. Mr Clark was killed instantly.

It is difficult to see an English or Welsh court holding that Deputy Vansant’s actions would have been reasonable in the circumstances reported. The Berkeley County Sheriff’s Office did not attempt to justify the contact and instead blamed Mr Clark for “missing a gear” and the Deputy was not prosecuted after a grand jury accepted his account. I note that Berkeley County’s pursuit policy prohibits “deliberate contact between vehicles … unless specifically authorised by a supervisor,” and only in a situation where “the use of deadly force” would be approved. While the Met have not published their policy on the use of force to end pursuits involving motorcyclists, I would be surprised if such force were permitted otherwise than in extreme cases.

You may remember some talk earlier in the year of the government introducing a new law to “protect the protectors”, this followed a campaign by emergency service workers for better protection from the law. The campaign included calls for protections for police drivers accused of criminal offences in the course of their work; however, the Assaults on Emergency Workers (Offences) Act 2018 was introduced as a result of that campaign but it only purports to increase the sentences for assaults on emergency workers, it did nothing to protect police drivers engaged in pursuits.

So, what could be done to change the law to add protections for emergency service drivers and particularly police pursuit drivers? The most obvious change is to open up the purely objective nature of dangerous driving and allow a jury to assess whether the driving was objectively dangerous based upon the facts known to the driver at the time, such as his or her level of training and experience, the reason the car was driven in the way it was etc. I think that courts and Parliament would be unhappy with this approach because it would open up the test to everybody not just police officers, although it would also mean that prosecutors would have to consider whether they could reasonably expect a conviction against a police officer.

The alternative approach is to introduce a statutory defence available only to emergency service drivers to the effect that there will be a defence to dangerous driving where they are driving in accordance with their training and the tactics used by the officer have been authorised generally by the Home Office and in the particular instance by an officer an appropriate rank who is not himself directly engaged in pursuing the offending vehicle. This approach provides a defence to the officer as well as protection for the public that officers on the front line in stressful situations are not being required to make calls without proper oversight and authorisation. Should the decision to ram a moped, for example, be shown to have been wrong an officer acting within his authorisation would be personally protected but the police force as an organisation could still be prosecuted under health and safety legislation. In some cases, this would leave an officer who forms the view that there is a life or death emergency that cannot wait for authorisation that requires him to ram the vehicle, you might consider that a situation such as the terror attack on London Bridge might be such a situation. In those cases, the officer would always have the protection of the section 3(1) defence although you may feel that the statutory defence could also be drafted to incorporate such situations.

In my view, it is right that police officers should use force to stop some suspects even where that places the suspect at risk. There is always the argument that the suspect places themselves in danger by failing to stop but I do not place any great weight on that argument because all things are relative, e.g. would ramming a motorcycle seen speeding be reasonable as appeared to happen in Mr Clark’s case? Absolutely not; the risk of serious consequences for the suspect are out of all proportion to the offence under investigation and the danger to the public can be effectively mitigated by ending the chase thus ending the motorcyclist’s bad driving. Where a moped rider is suspected of spraying acid in the faces of other people you may well agree that capturing such a suspect is and should be a top priority for the police and so the level of force that is reasonable increases.

Currently, the police have the power to use reasonable force to apprehend offenders. I would argue that while this does provide protection for police officers, it does not go far enough. I suggest that the law must be amended to provide adequate protection for police officers engaged in pursuits of suspected serious offenders. My recommendation is that this protection is granted either by amending the definition of dangerous driving to allow consideration of the circumstances that led to the relevant piece of driving. This would allow prosecutors to take a fuller view of the likelihood of conviction. Alternatively, there should be a statutory defence created to specifically protect officers accused of driving dangerously where it can be shown that particular tests designed to protect the public have been met.