Section 329 applies whenever a Claimant alleges that the other person (usually though not necessarily a police officer) did an act amounting to trespass to the Claimant’s person and the Claimant is subsequently convicted of an imprisonable offence committed on the same occasion as the alleged trespass.

If the section applies then “Civil proceedings” may be brought only with the permission of the Court. The Court of Appeal in Adorian v Commissioner of Police for the Metropolis [2009] 1 WLR 1859 held that whilst it was sensible to make such an application before proceedings had been issued or served the failure to do so did not render the issued proceedings a nullity. Instead the application for permission could be made at any time. The Court of Appeal also held that the requirement for permission was to be treated in a like manner to a limitation defence; it was a point for the Defendant to raise. If the point was not taken by the Defendant then permission was in effect conceded.

In relation to the permission stage the Court may give permission for proceedings to be brought only if “there is evidence that”:

  • The condition in subsection 5 is not met (i.e. that the Defendant did the act because he believed the Claimant was about to, was in the course of or had committed an offence and he believed the act was necessary to defend himself or another or to protect or recover property or to prevent an offence or to apprehend or secure the conviction of the Claimant); Or
  • in all the circumstances the defendant’s act was grossly disproportionate

If permission is given for the claim to be brought it will be a defence at Trial to disprove either of the two foregoing matters. The burden at trial is on the Defendant.

There is little authority on how the initial requirement for permission should operate. Clearly it acts as a filter to prevent spurious claims going to Trial. The main authority on the permission stage is Buike v Chief Constable of West Yorkshire [2009] EWCA Civ 971. In that case the Court of Appeal held that the task of the Judge hearing the permission application is to perform a reverse summary Judgment procedure. The Claimant was required to show that the claim had a real prospect of success and in particular that there was a real prospect of the Court at Trial concluding either that the subsection 5 matters were not met or that the Defendants conduct was grossly disproportionate.

As such at the permission stage unlike Trial the burden is on the Claimant to prove the required matters. The burden to discharge is the Summary Judgment test of real (as opposed to fanciful) prospect. The Court emphasised that such applications should not turn into mini trials. Evidence from the Defendant that merely revealed there was a triable issue was of no assistance at this stage.

The final issue to note is what is meant by the words “grossly disproportionate”. This is a different expression to that used in PACE 1984 (“reasonable force”). At the substantive Trial in Adorian ([2010] EWHC 3861) the Court held without defining the expression that it permitted the use of force that was far more than simply reasonable force. However its precise limits and scope remain open to challenge in any given case.

There are it seems two obvious areas where further issues are likely to arise.  

The first issue is whether the Human Rights Act and particularly Article 6 and the right to a fair trial should be used to read down the strict wording of the statute. The argument is that to ensure that those who are convicted of imprisonable offences are given the same rights as those who are not convicted the words “grossly disproportionate” should be read down to mean no more than the “unreasonable use of force” to bring it in line with PACE/the common law. This argument was raised but not decided by the Court in Adorian.

The second area where an issue is likely to arise is over precisely what causes of action are caught by this section. The statute refers to civil proceedings in the context of a claim for trespass. In Adorian the Claimant’s lawyers expressly conceded that the statutory bar would apply to both a claim for trespass and also a negligence action arising out of the same facts. The Court of Appeal expressly doubted whether this concession was correctly made. Whilst obiter they indicated the view that the two claims will not necessarily stand or fall together.

Both areas would appear to be ripe for further judicial input.