Expert: Bruce Fyfe - 10/22/2009

Question
HI, my son who is 18yrs old was beaten severely and was put in hospital with head injuries.The police are involved and my son wishes to press charges as he has been told the offender can be charged with GBH.My problem is this, the argument started in a pub, the offender was harassing my sons partner to the point where my son asked him to stop, an argument started the offender grabbed my son round the neck and hit him, my son hit him back and head butted him.They where then asked to leave by the bouncers which they did.But while outside the offender knocked my son out by thumping him in the back of his head then repeatedly punched his face against the pavement while unconcious.talking to the police today for an update, they haven't made an arrest yet as they don't know his address but they have also said that my son will have to be charged or cautioned for causing an affray, is this true as my son has a clean record and it seems that if we want to continue to press charges that my son will also have to be charged or cautioned.we have also found out that the offender is a mixed martial arts fighter.(MMA)semi-professional can he be reprimanded for using these fighting skills and not be allowed to compete anymore.This all happened over 2 weeks ago we have supplied all the information concerning the offender and the police still haven't made an arrest. is this normal police procedure or can i make a complaint as they seem to be treating it as a fight rather than a vicious attack. thankyou for your help.

Answer
Linda

English law, but ... Also, I'm sorry, but this is not going to be what you want to hear.

Looking at it objectively, I would have to say that it was a fight, which your son did not start and in which your son was (more) seriously injured, but a fight nontheless.

My reasoning is based on the headbutt carried out by your son. That is more than just a defensive act, as which his strike (punch?) could be excused (in order to extricate himself from the headlock/immediate circumstances).

The use of force continuum applies to PCs - tactical communication, empty hands techniques (fend offs), distraction techniques/strikes, use of baton/cuffs/CS etc etc in response to the threat/level of violence - but also to members of the public.

Reasonable progression of force means that it would only be ok for a PC to use CS as their first level of defence against an assailant they had previously dealt with or who they knew possessed and inappropriately used martial arts skills, but not if they did not know that in advance (unless he was a lot bigger and had a weapon to hand). Likewise, it's ok to push someone away if they are physically threatening you (so that you can then walk/run away).

So, it would be ok if your son had used one punch or strike to free himself from the headlock, but it would only have been ok to use a greater level of force ie the headbutt if he knew about the martial arts skills and genuinely believed that the only way he could escape was to use an increased amount of force. Your son did not know that his assailant was qualified in a martial act and therefore could not use that as his reason for increasing the level of force used.

At the end of the day, you have to remember that the Police service is simply a reporting agency - in Scotland to the Procurator Fiscal, in E&W to the CPS, and it is the latter (on behalf of the DPP) who will determine what charges, if any, should be brought and against whom.

In order to come to that decision, they will consider whether enough evidence has been gathered against an offender and whether court action is in the public interest. Your son's partner's evidence (and that of anyone else who can corroborate that part of the events?) will be very important in the second part of their decision.

(Unfortunately, in E&W only, the time and cost involved in bringing a prosecution is also to be balanced against the seriousness of a crime and the harm it has caused as of 2010.
http://www.telegraph.co.uk/news/newstopics/politics/lawandorder/6378452/Persiste...).

The accused will, naturally, be lying low as he will be expecting to be apprehended/charged and that is probably why he hasn't yet been traced and dealt with.

Also, the PC dealing will also be juggling 10 - 20 other ongoing enquiries, all of which s/he has to fit in around other allocated and ongoing incidents.

Further, it is more than likely that the number of PCs in his/her response team is insufficient to be able to provide even a basic 'fire brigade' policing response, never mind allow time for follow-up enquiries and paperwork (crime recording/writing police reports/etc etc).

However, these characters always turn up in the end. Not that that particularly matters, as, if there is sufficient evidence without an admission, a police report can be submitted in any case.

Your son may eventually need: any available CCTV footage and witnesses, a couple of character witnesses and a defence solicitor. He should also apply for criminal injuries compensation - http://www.cica.gov.uk/ - although any amount awarded may be reduced if he is found to be partially responsible (ie found guilty of an assault, rather than it being ajudged self defence).

As far as your son's assailant and his competition use of his martial arts skills, you could consider reporting him to the relevant, controlling sports body (but better if and when he's been found guilty). That, of course, won't stop him being able to use those skills again in a similar situation - which is why I (and a lot of other people) dislike any martial art other than judo, which is defensive, not offensive in nature.

If you want to make a complaint about the PC dealing, that's entirely a matter for yourself, but surely that would mean that your son's assailant would also justified in making a complaint about being charged, as I'm sure he will believe himself also to be being 'victimised'/'harrassed' by the same PC?

Sorry.