I thought it was worth going a little further in attempting to provide some of the factual foundations that need to underpin a discussion both about the Henry Nowak case and the broader circumstances including discussions about policing practices and especially allegations of “two-tier policing” targeting white British people.
Ian Paul has written on his blog:
“The question arises, why did the police here act so far out of line with not only police training but also basic common sense? And what role did the claim of a racist attack play in this scenario?”
He then goes on to cite people arguing that it is the result of a form of bureaucratic racism. Ian’s comments are based on a couple of observations given to him by anonymous retired police officers. One says:
“When I was in, no way you handcuff anyone until
1) they have been arrested (because you’ve established the facts & it needs to happen to deprive someone of their liberty is not to be taken lightly)
2 ) they are then posing a threat to you themselves or others & you can’t otherwise restrain them
This is the result of bad training and (it appears) presumption of who was the victim and who was the perpetrator.”
The other says:
“I served as police officer for some years the inexcusable action here was to cuff the person without first checking properly for knife wounds, whether victim as in this case or offender they should gave checked for his injuries, there appeared to be enough officers in attendance.
“Any application of handcuffs must be strictly lawful, necessary, and proportionate. Officers must have objective grounds to believe the person will escape, harm themselves, or harm others. Handcuffing cannot be used as a matter of routine”
I’m ex police. I do struggle with the fact that, regardless of what was being said by people at the scene, the first thing would have been checking the welfare of the man on the ground, taking personal safety into consideration, but establishing his condition would be a priority. He may have been faking illness or drunk, but in checking that, it would have revealed his injuries, which would then have turned the tables on the accuser, and although it would probably not have saved Henrys life, it would have diminished the immense grief and stress that this case has brought.
I’m generally cautious about the practice of using anonymous sources and asking them to comment on something when they were not present and are reacting to partial information. Indeed, I’m cautious because most people active or retired from particular professions would themselves be reluctant about intervening in a case where they have not been involved. That would be true of medical professionals, teachers, pastors and indeed manufacturing engineers. I personally would be give an opinion cautiously about another pastoral situation and with lots of caveats. Similarly I’d be cautious about giving advice at a distance on a business system or process issue.[1]
In this particular case, we can see the problem immediately. The anonymous sources discuss the need to check the person’s health and for stab wounds. However, the footage shows that they do that as soon as they are alert to the claim of a knife wound and become concerned about Nowak’s wellbeing. The police arrive at 1137 and they have requested an ambulance by 1139.
So in terms of the questions, they do hinge on whether or not Nowak should have been handcuffed. Now, I’ve already said up front that I’m not convinced that he should have been. However, note that this is a cautious view expressed from a distance. It has to be determined through the correct process of inquiry and inquest because you and I may not have all the necessary information available to us and furthermore, we were not in the shoes of the officers on the ground, that night, making a snap judgement.
Remember that they were called to the scene with the following information.
- There was a reported case of racially aggravated assault and battery.
- The alleged assailant was drunk.
- The alleged assailant was being restrained.
They arrived on the scene to find the alleged victim with his turban removed as claimed and the alleged suspect, who turned out to be the victim as it transpired being restrained as reported.
Now, this is where the law matters. Paul references what he believes to be the police training manual.[2]
“Legal Justification
The Law: Handcuffing is legally considered a form of assault unless it is justified. Officers rely on powers like Section 3 of the Criminal Law Act 1967 and Section 117 of the Police and Criminal Evidence Act 1984 (PACE) to justify the force.
Reasonable Grounds: An officer must have an objective basis for handcuffing. This usually requires proof of a real risk of violence or escape, or the need to prevent the destruction of evidence.
This is where familiarising ourselves with the law, especially the Police and Criminal Evidence Act (1984) and the background to that act matters. It is first worth observing that PACe came about under Margaret Thatcher’s government and was in response to concerns at the time in response to false convictions and also the use of stop and search powers and impact on inner city communities. We should be wary of looking back to some golden era of policing.
Section 24 states:
Arrest without warrant: constables
(1)A constable may arrest without a warrant—
(a)anyone who is about to commit an offence;
(b)anyone who is in the act of committing an offence;
(c)anyone whom he has reasonable grounds for suspecting to be about to commit an offence;
(d)anyone whom he has reasonable grounds for suspecting to be committing an offence.
(2)If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.
(3)If an offence has been committed, a constable may arrest without a warrant—
(a)anyone who is guilty of the offence;
(b)anyone whom he has reasonable grounds for suspecting to be guilty of it.
(4)But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.
(5)The reasons are—
(a)to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person’s name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);
(b)correspondingly as regards the person’s address;
(c)to prevent the person in question—
(i)causing physical injury to himself or any other person;
(ii)suffering physical injury;
(iii)causing loss of or damage to property;
(iv)committing an offence against public decency (subject to subsection (6)); or
(v)causing an unlawful obstruction of the highway;
(d)to protect a child or other vulnerable person from the person in question;
(e)to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
(f)to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.
(6)Subsection (5)(c)(iv) applies only where members of the public going about their normal business cannot reasonably be expected to avoid the person in question.]
Note, that the police may arrest when they have reasonable suspicion that a crime has been committed. They are not determining that the crime has definitely taken place. A report via 999 would count as the basis for reasonable suspicion.
Secondly note that they can arrest in order to prevent the person causing injury to themselves or others. They can also do so, when the person is at risk of escaping. Those will have been the split second judgements the police were making. Remember that in this context, they were told that Nowak was being restrained. This suggested there might have been risk of him lashing out or of making a run for it.[3]
Section 117 additionally empowers officers to use reasonable force. This would include handcuffing when necessary. In other words, the officer must determine first whether or not arrest is necessary in the circumstances and then whether the use of handcuffs is reasonable, necessary, proportionate. This is similar to section 3 of the Criminal Law Act 1967.
It is worth noting that there are not specific laws on handcuffing. Rather, we are interpretating the necessity and proportionality of their use in the light of legislation about arrest and the use of reasonable force. We need to be very careful about making dogmatic statements on that basis.
My personal opinion is that in this case, the police should not have used handcuffs. I think that arrest could be reasonably justified. However, I would remain extremely cautious about coming to hard and fast conclusions. The inquiry and inquest may take differing views. Hopefully an outcome of this will be greater clarity for officers arriving at the scene of reported crimes.
[1] Elsewhere in the article, Paul writes “One of the features of our criminal justice system is that different ethnic groups are convicted of crimes at different rates—I was struck by the fact that the initial BBC report on the conviction of Digwa actually mentioned this differential upfront as part of their report. The goal of the police anti-racism policy here is explicitly to see few people from ethnic minorities convicted—by means of differential treatment of the groups.
I read this policy out to a friend who is an experienced barrister, and he had two responses. First, he had never heard of this—and indeed, the document has not been publicised widely at all. Secondly, he said that this was, in all likelihood, illegal, since it displaces the core principle of law that all are treated with equality, not with ‘equity’. Equality means that the same process is applied to all; equity means that you adjust the processes you apply in order to create the same outcome.
In other words, the goal here is not that different groups should be policed so that the crime rates are equal, but the justice process should be adjusted so conviction rates become equal. What is remarkable is that this approach very nearly led to a proposal to introduce different sentencing guidelines for different ethnic groups—until Shabana Mahmoud stepped in to block it.” Note, that he now introduces an anonymous barrister. However, we are not told where this barrister’s expertise is. Is it in criminal law or human rights law? Do they have a focus on equality legislation? Are they thinking about how the equality act is interpreted, the Human Rights Act or older common law? Are they giving a tight legal interpretation as set out in statute or case law? Or are they offering their own opinion, shaped as much as anyone else’s by their own philosophy?
[2] I’m fairly certain that there isn’t such a single, standardised police training manual. In fact, if you google the quote, it takes you back to Ian Paul’s article. It may well be based on police training materials but actually looks very similar to what you will get from an AI search if you ask the question “what is the legal justification for handcuffing.”
[3] Our view might be that this was not likely but we again were not there on the ground and do not have the wider experience of such scenarios. I have however see someone under the influence, having been in a car crash and seeming subdued run away when the police arrived on the scene.
Faithroots 