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DEVON AND CORNWALL CONSTABULARY

From: / Misconduct Investigator G G BATES QPM / To: / T/Detective Superintendent D BEER
Professional Standards Department / Professional Standards Department
Headquarters – Middlemoor / Headquarters - Middlemoor
Tel No: / 22962
Ref.: / PSD/CO/270/07 / Your Ref.: / Date: / 18 September 2009
Subject: /

supervised complaint against police by –

mr john conrad joseph and mrs annette joseph

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Sir

COMPLAINANT

John Conrad JOSEPH

7 Upland Rise

Westbury

WILTSHIRE BA13 3HW

Date of Birth:6 June 1956

Ethnicity:Black – Caribbean

COMPLAINANT ADVERSELY AFFECTED

Mrs Annette Jeanne JOSEPH

7 Upland Rise

Westbury

WILTSHIRE BA13 3HW

Date of Birth:

Ethnicity:White – British

  1. DATE COMPLAINTS NOTIFIED

On the 1st of May 2007, Mr JOSEPH made a complaint by letter dated the 23rd of April 2007, concerning his treatment by officers who arrested him on the 22nd of April 2007. The complaint was recorded at Professional Standards by Inspector EASTON as ‘Discriminatory Behaviour’, ‘Unlawful/Unnecessary Arrest or Detention’, ‘Excessive Use of Force’, ‘Mishandling of Property’ and ‘Breaches of Code C of the Police and Criminal Evidence Act 1984’.

  1. DATE STATEMENT OF COMPLAINT OBTAINED

The investigation of the complaint was constrained by the Rules of sub judice until the 20th of February 2008. A statement of complaint was obtained from Mr JOSEPH on the 2nd of May 2008.

  1. REFERRAL TO IPCC

A ‘Mandatory’ Referral to the Independent Police Complaints Commission (IPCC) was made on receipt of the complaint. On the 9th of May 2007, a decision was made by the IPCC to ‘Supervise’ the investigation under the reference number 2007/005939 to be overseen by Elizabeth POLLARD of the IPCC, Cardiff.

  1. PERSONS SERVING WITH THE POLICE SUBJECT OF COMPLAINT

Police Constable 6191 DAVIES of Devon BCU, Paignton Police Station.

Police Sergeant 4764 SMOOTHY of Devon DCU, Paignton Police Station.

Police Sergeant 4889 COOK of Devon BCU, Torquay Police Station.

Police Sergeant 6305 WYLES of Devon BCU, Newton Abbot Police Station.

Police Sergeant 255 MAKER of Criminal Justice Department, Torquay Custody Centre.

Police Constable 5548 MORRISON of Devon BCU, Paignton Police Station.

  1. INVESTIGATING OFFICER

Misconduct Investigator Geoffrey George BATES QPM of the Professional Standards Department, Police Headquarters, Middlemoor, Exeter, replaced Misconduct Investigator Michael SHIELDS who was initially appointed to undertake the investigation.

  1. IDENTIFIED COMPLAINTS

On the 22nd of April 2007, at Paignton, Police Sergeant 4764 SMOOTHY and Police Constable 6191 DAVIES used excessive force on Mr JOSEPH with the use of handcuffs and leg restraints in such a manner as to cause injury to Mr JOSEPH’s wrists and back.

On the 22nd of April 2007, Police Constable 6191 DAVIES abused his authority by unlawfully arresting Mr JOSEPH.

On the 22nd of April 2007, Police Constable 6191 DAVIES abused his authority in the seizure and retention of a mobile phone belonging to Mr JOSEPH without reasonable grounds to do so, or other lawful authority.

On the 22nd of April 2007, at Paignton, Police Sergeant 4764 SMOOTHY and Police Constable 6191 DAVIES, failed to treat Mr JOSEPH with courtesy and respect, treating him in a deriding manner, whereby such conduct indicated unreasonable discrimination which was racially motivated.

On the 22nd of April 2007, at Paignton, Police Sergeant 4764 SMOOTHY and Police Constable 6191 DAVIES, failed to treat Mrs Annette JOSEPH with courtesy and respect, causing unnecessary stress and anxiety to her at the scene of her husband’s arrest.

On the 22nd of April 2007, at Torquay, Police Sergeant 4889 COOK, abused his authority, unlawfully detaining Mr JOSEPH after he had recorded a negative result of a Road Traffic Act breath test.

On the 22nd of April 2007, at Torquay, Police Sergeant 4889 COOK, abused his authority in that he failed to accede to Mr JOSEPH’s request for a solicitor.

On the 22nd of April 2007, at Torquay, Police Sergeant 4889 COOK, failed to treat a member of the public with courtesy and respect, in that he showed a deriding attitude towards Mr JOSEPH whilst in detention, whereby such conduct indicated unreasonable discrimination that was racially motivated.

On the 22nd of April 2007, at Paignton, Police Sergeant 4889 COOK, abused his authority in subjecting Mr JOSEPH to sleep deprivation, whilst he was detained in custody.

On the 22nd of April 2007, at Torquay Custody Centre, Police Sergeant 6305 WYLES abused his authority with regard to the detention of Mr JOSEPH, in that he accepted his detention from a colleague without question and unlawfully detained him.

On the 22nd of April 2007, at Torquay Custody Centre, Police Sergeant 6305 WYLES, failed to be conscientious and diligent in the performance of his duty, namely failed to provide Mr JOSEPH with food or drink during his detention.

On the 22nd of April 2007, at Torquay Custody Centre, Police Sergeant 255 MAKER, abused his authority in regard to the detention of Mr JOSEPH in that he accepted his detention from a colleague without question and unlawfully detained him.

On the 22nd of April 2007, at Torquay Custody Centre, Police Sergeant 255 MAKER, failed to be conscientious and diligent in the performance of his duty, failing to provide Mr JOSEPH with food or drink during his detention.

On the 21st April 2007, at Paignton, Police Constable 5548 MORRISON, without justification caused Mr John Conrad JOSEPH to become suspected of driving with excess alcohol by putting a message out on the Police Radio System intended to alert other Police Patrols, alleging that Mr JOSEPH was likely to drive his motor vehicle with excess alcohol. The reason for this action is alleged to have been discriminatory on the grounds of Mr JOSEPH’s ethnicity and the fact he had made a previous complaint against PC MORRISON.

  1. TERMS OF REFERENCE
  • To fully investigate the circumstances surrounding the Police involvement with Mr JOSEPH on the 22nd of April 2007.
  • The investigation to include, but not be limited to, consideration of the following matters:

The investigation of Mr JOSEPH’s complaint that Police Officers that dealt with him are institutionally racist.

The investigation of Mr JOSEPH’s complaint that he was unlawfully arrested and detained for more than 12 hours.

The investigation of Mr JOSEPH’s complaint regarding the unlawful seizure of his mobile phone.

The investigation of Mr JOSEPH’s complaint regarding a failure to contact his solicitor.

The investigation of Mr JOSEPH’s complaint regarding his treatment whilst in custody.

The investigation of Mr JOSEPH’s complaint regarding damage to his watch.

The investigation of Mr JOSEPH’s complaint regarding injuries caused to his wrists by the application of handcuffs.

  • To prepare a written report on the findings of the investigation for the attention of The Commissioner copied to the Assistant Chief Constable. To include recommendations on the culpability of any individual for any criminal liability and in the case of Police Officers/Staff any disciplinary offences that may be apparent.
  • The Senior Investigating Officer (SIO) to forward the report for the attention of The Crown Prosecution Service and for the ACC to make any determination or recommendations with regard to conduct.
  • The report must fully and objectively summarise the relevant evidence gathered, draw conclusions based on the effective analysis of the evidence and recommend disciplinary and other outcomes based on the conclusions drawn from the evidence. It must be sufficiently robust in its analysis to ensure that all users, especially the disciplinary authority, may confidently base decisions upon it.
  • Organisational learning should be clearly identified in all but the most exceptional cases, as part of the report, to enable improvements in the performance and/or community relationships, and to enable effective monitoring through the guardianship activities of the IPCC, resulting in opportunities for increase in public confidence.
  • The investigation will be undertaken in a timely manner, having due regard to the broader impact on all parties, but will be thorough and effective. If it is to exceed 90 days, this should be notified to all parties at the earliest possible time.
  • Prior to the finalisation of the report, the IO will ensure that the IPCC is satisfied the investigation has met the Terms of Reference.
  • The Commissioner ‘supervising’ this case will be Ian BYNOE, who will approve the Terms of Reference, agree the appointment of a Senior Investigating Officer and exercise oversight of the investigation. The Direction and Control of the investigation is for the SIO. The SIO will keep The Commissioner informed and briefed, as he requires throughout the course of the investigation.
  • As a minimum, the SIO will ensure that the IPCC has an appropriate Investigation Plan, to include a Communication Plan and Risk Assessment for the case, to enable effective supervision by The Commissioner and his colleagues working on his behalf.
  • All interested parties related to the incident will be kept fully informed, as they require during the investigation, including any officers who are identified as part of the investigation subject to necessary disclosure limitations. Officers will have their welfare needs addressed by the Force. Regulation 9 Notices will be served as appropriate and if not in a response to a specific complaint, only where evidence suggests a criminal offence or misconduct may have occurred.
  • All publicity will be cleared with The Commissioner and the relevant parties to the investigation will remain the responsibility of the Force.
  1. SUMMARY OF INCIDENT

At 2129 hours, on the evening of Saturday, 21st April 2007, PC 5548 MORRISON was on duty in Paignton, when he informed the Torbay CCTV Control Room, of a suspect vehicle in Winner Street. The vehicle was a Saab motor car, registration number M163 DGF owned by Mr JOSEPH. It was parked opposite The Globe Public House in Winner Street. PC MORRISON is recorded on an audiotape of his radio transmission, saying, “YEAH, THERE’S A SAAB, M163 DGF PARKED QUITE INCONSIDERATELY. I KNOW THE CHAP VERY WELL. HE’S AN ENTERTAINER AND HE’S PROBABLY GOING TO GET QUITE A FEW BEERS DOWN HIS THROAT TONIGHT AND DRIVE HOME. CAN YOU JUST KEEP AN EYE ON IT IF YOU CAN, PLEASE? I KNOW YOU’RE GOING TO BE BUSY”.

At 0038 hours, on Sunday, 22nd April 2007, the audiotape refers to the same vehicle going mobile from Winner Street and Police Units being alerted to that fact.

PS 4764 SMOOTHY and PC 6191 DAVIES responded to the report of Mr JOSEPH’s vehicle going mobile from Winner Street. They were on patrol in the vicinity and saw the vehicle being driven down Cecil Road, Paignton towards Torquay Road, Paignton. The officers followed the vehicle and they both noted it was being driven erratically in their opinion, swerving from the nearside to the centre of the road. The officers followed the vehicle into Torquay Road, where it travelled in the direction of Torquay. The Police Officers caused the vehicle to stop just before the junction of Torquay Road and Higher Polsham Road. The vehicle was being driven by Mr JOSEPH and the front seat passenger was his then fiancée, now wife, Mrs Annette JOSEPH.

PC DAVIES requested Mr JOSEPH to alight from the motor vehicle and Mr JOSEPH complied. PC DAVIES told him that he was suspected of driving under the influence of alcohol. PC DAVIES went on to question Mr JOSEPH, who admitted he had been working and had consumed alcohol. Mr JOSEPH did not indicate to the officer the quantity of alcohol he had consumed.

PC DAVIES began the breathalyser procedure, requesting a specimen of breath from Mr JOSEPH, which he consented to provide. The officer states Mr JOSEPH said he had not had a drink in the previous 20 minutes and had not used mouthwash or mouth spray. The officer states Mr JOSEPH refused to tell him whether he had smoked in the last 20 minutes. The officer told Mr JOSEPH he would have to wait 15 minutes before he could begin the breathalyser procedure. It was during this wait the officers allege Mr JOSEPH’s behaviour became aggressive and uncooperative. This caused them to arrest him for Section 4 of the Road Traffic Act, Section 5 of the Public Order Act and Resisting Arrest. Assistance was summoned from other officers and Mr JOSEPH was taken to Torquay Custody Centre where he was detained. The breathalyser procedure was undertaken with Mr JOSEPH, which proved negative. Mr JOSEPH continued to be detained until 12.16 hours on 22nd April 2007, when he was charged with Section 5 of the Public Order Act and Resisting Arrest. He was subsequently acquitted of these charges in February 2008. It is against this background the complaints are made.

9.INVESTIGATION

The investigation of the complaints commenced after the acquittal of Mr JOSEPH. Initially, the investigation was conducted by Misconduct Investigator Michael SHIELDS. Unfortunately, midway through the investigation Mr SHIELDS fell ill and the investigation passed to the reporting officer. This has caused some unavoidable delays for which we would apologise.

During the investigation we have examined prosecution files, Incident Logs, Custody Records, Custody CCTV, incident audiotapes, Court papers and other relevant documents. Where relevant, these items have been exhibited. Statements and witness accounts have also been obtained from relevant witnesses.

Mr JOSEPH makes a statement of complaint in which he describes the events of the evening of Saturday, 21st April 2007 of his arrest, detention and his complaints against the officers

Mr JOSEPH states he had worked at The Globe Public House, Winner Street, Paignton, performing his singing act. He describes leaving The Globe with his wife and driving into Torquay Road, where he was stopped by PC DAVIES and PS SMOOTHY. He states he co-operated with the requests of the officer in relation to the breathalyser procedure.

Mr JOSEPH states he told the officer he had smoked a cigarette and the officer told him he would have to wait 15 minutes before the breathalyser test could be conducted. In any event, Mr JOSEPH, who describes himself as being 56 years of age, black Caribbean, 6 foot 6 inches tall and medium build, went and sat on the wall of a house adjacent to where he had been stopped to await the breath test procedure. Having sat on the wall, Mr JOSEPH said to the officer, “THIS IS INSTITUTIONAL RACISM”. Mr JOSEPH says at this, PC DAVIES bounded back towards him with his handcuffs drawn reminding him of something out of ‘Gunsmoke’.

When the officer reached him he pushed Mr JOSEPH back over the wall and turned him as he did so, so that Mr JOSEPH had his back towards the officer. The officer tried to apply handcuffs and then pulled Mr JOSEPH back from the wall and took him face down to the floor. Other Police Officers arrived and Mr JOSEPH describes in his statement as being handcuffed and the treatment he received at the hands of the officers. Mr JOSEPH had been recording the actions of the officers on his mobile telephone prior to his arrest. He managed to pass the telephone to his wife. Either PS SMOOTHY or PC DAVIES told Mrs JOSEPH to give them the mobile telephone, or she would be arrested also. It is clear from the evidence, PC DAVIES went behind Mrs JOSEPH and took the telephone from her hand and put it in his uniform pocket. Mr JOSEPH’s statement of complaint continues to describe being taken to the Police van in handcuffs and leg restraints. The handcuffs being so tight they were restricting his circulation and causing immense pain, being thrown in the back of the Police van head first and face up and landing on his back on the floor of the Police van. Mr JOSEPH goes on to state he suffers from ‘Ankolossis Spondylitis’, which is a back ailment. He describes the van being driven off at high speed to Torquay Police Station. He describes being taken from the back of the van and pleading for the handcuffs and leg restraints to be released, this was ignored. The handcuffs were eventually removed after Mr JOSEPH had been in the Holding Cell for about 20 minutes.

Mr JOSEPH goes on to describe the events in the Custody Centre. He was protesting his innocence and PS COOK is alleged to have become immediately arrogant towards him, not allowing him to speak and eventually he was placed in the cell. He states that he was in the cell for an hour before PS SMOOTHY and PC DAVIES came and took him to the Breath Test Room. He underwent a breath test, which was negative. He was then placed back into the cell. When he asked why he was being detained in view of the fact that the breath test was negative, the officers refused to tell him. He continued to try and ascertain why he was being detained and rang the cell bell to no avail. Throughout the night he alleges the Detention officers visited the cell, prodded him and subjected him to sleep deprivation. He was not provided with food or water, despite requests. He was released at about 11.30am on 22nd April 2007, charged with Resisting Arrest and Section 5 of the Public Order Act. Mr JOSEPH’s statement concludes by saying that he subsequently appeared before Newton Abbot Magistrates Court on the 18th/19th February 2008 on those charges; he pleaded ‘not guilty’ and was acquitted. He then lists his complaints against Police, which are reflected in the identified complaints detailed at the head of this report.

Mrs JOSEPH makes a statement describing her husband’s arrest, which supports his allegations and complaints. She confirms PC DAVIES took the mobile phone from her.

A statement is attached from Doctor COPE who examined minor abrasions to Mr JOSEPH’s right wrist shortly after his arrest at TorbayHospital.

Diane BROWN, a Chiropractor, provides a statement detailing Mr JOSEPH’s spondylitis and examination of him in June 2007.

Notices of Investigation were served upon PC DAVIES, Sergeant’s SMOOTHY, COOK, WYLES and MAKER. PS SMOOTHY and PC DAVIES were interviewed on the 21st of November 2008 and reference will be made to those interviews later in this report.