Justifying battery. What do the police have to do? - Chief Constable of Merseyside Police v McCarthy [2016] EWCA Civ 1257

Jonathan Holsgrove

The Court of Appeal have recently laid down law likely to bring much relief to police forces concerned about the use of tasers.

Mr. McCarthy had been enjoying a night out in Liverpool when he became involved in a violent incident.  He together with friends had pursued another man and viciously assaulted him.  Police officers attended and sought to subdue Mr. McCarthy.  In doing so one of the officers kicked Mr. McCarthy before placing a knee in his back and tasering him twice.  Mr. McCarthy issued a claim against Merseyside Police for damages for battery for use of the taser, assault and negligence for failing to provide care after the taser.  Relevant to the appeal, at first instance the Court found in favour of Mr. McCarthy for one use of the taser but not the other.  The Court finding that the officer had discharged the taser for 11 seconds rather than a more reasonable 5.  Merseyside Police appealed the finding of battery for one use of the taser. 

The Court of Appeal reminded themselves of the law relevant to battery.  This being that a battery requires the unlawful physical contact but does not require an intention to injure.  Once a finding of battery is made the burden shifts to the Defendant to prove that such conduct was justified, for instance was in self-defence or a constable exercising their duty.

The Court held that:

1. In case such as this the Court should recognise the difficult situations police officers find themselves in.  The rights of the person receiving the taser are not the sole consideration and thought should be given to the police officer ‘endeavoring to maintain law and order in a volatile situation’.
2. It could not be said that it was unreasonable for the officer to apply the taser for more than five seconds in a situation where he subject of a possible attack.  However, this was not the finding of fact made at first instance who found that the application of the first five seconds was justified but the second six seconds was not.  This finding placed the bar that Merseyside Police must meet too high.
3. It was not correct to attempt to divide and assess actions in such a short period of time.
4. The findings of the Court at first instance were wrong and the appeal would be allowed.

This case is a useful illustration of how the Court will approach cases in the future where the operational behavior of the police is criticised.  In this case the situation was one of highly charged violent disorder and the officer’s actions need to be considered in that context.  In civil terms the situation is likely to be much different where the allegation of battery is against a civilian and such force is no easily justifiable.