17 Jul 2018

IPCA finds officer's use of pepper spray in cell unlawful

6:50 pm on 17 July 2018

The Independent Police Conduct Authority has found an officer's use of pepper spray in a station cell was unjustified and unlawful.

Sergei Skripal was one of four prisoners released by Moscow in exchange for 10 US spies in 2010, as part of a swap. He was later flown to the UK.

Sergei Skripal was one of four prisoners released by Moscow in exchange for 10 US spies in 2010, as part of a swap. He was later flown to the UK. Photo: 123RF

In June last year a drunk man crashed his car and the IPCA report details the man's increasingly aggressive behaviour as he was transported to the Manukau Police Station.

"As Officer B drove towards the Police station, Mr X put his feet on the console between the two front seats. He managed to unbuckle his seatbelt and attempted to move into the front of the patrol car.

"He began swearing at and threatening Officer B, who pulled the patrol car over and requested a Police van be sent to assist."

Another officer who had been following the patrol car stopped to help and while they were waiting for the van to arrive, Mr X began head butting one of the passenger windows and was removed from the vehicle to stop him hurting himself.

"Officers C and D subsequently arrived, seated Mr X in the back of the Police van, and transported him to the Police station with the lights and sirens on. During the trip, Mr X was banging and kicking the walls of the van."

At the Manukau Police Station eight staff were required to help place the man in a cell and as the last person to leave the room, Officer C, reached the door, he saw a pair of handcuffs lying on the floor directly in front of the man.

He returned to pick them up and as he did so the man grabbed his leg and they struggled.

At that point Officer H immediately re-entered the cell and, without issuing a warning, sprayed a short burst of pepper spray in the man's face, which subdued him.

The IPCA investigation into the incident considered two matters - was the force used to place the man in the cell justified and was Officer H's use of pepper spray justified in the circumstances?

Officers told the authority the man appeared to be heavily intoxicated and also potentially under the influence of drugs; he was difficult to manage as he had significant physical strength and he could not be reasoned with.

"The officers' accounts are supported by CCTV footage, which shows Mr X being obstructive, resistant, and aggressive."

The authority ruled the level of force the officers used in placing the man in the cell was justified.

Officer H told the IPCA he needed to act immediately because he was concerned the man was going to assault Officer C and he believed he therefore had grounds to use force in doing so.

"Officer H stated that he did not [initially] use pepper spray due to the close proximity of his colleagues and the risk of contaminating them with the spray. In other words, he would have used it if he could.

"This statement itself is concerning, when it was obvious that staff were able to effectively deal with Mr X by physically restraining him."

The IPCA said police policy provided guidance to officers about using force and set out conditions which must be met before an officer uses pepper spray generally, and in a cell environment specifically.

It said it became clear during his interview with the authority that the officer lacked adequate knowledge and understanding of that policy, which had significant implications regarding his decision-making.

"The Authority finds that Officer H cannot rely on section 48 of the Crimes Act relating to defence of another, as while he believed he was acting in defence of his colleague, the force used was not reasonable in the circumstances and could have been resolved with less violent means."

Other staff interviewed told the IPCA they did not believe the use of pepper spray was warranted in the circumstances in the cell.

However it said Officer H himself was unrepentant saying, 'I take a lot of pride in my decision-making and if I could go back I'd do the same thing. I still think even in hindsight I made the correct decision.'

The Authority has found that on the balance of probabilities Officer H's use of pepper spray was unnecessary and therefore unlawful.

"The Authority is of the view that Officer H acted prematurely and without adequate appreciation of the situation or knowledge of policy.

Instead of appropriately considering the available tactical options, Officer H appeared to be focused on subduing Mr X with the use of pepper spray, which may have come at the expense of good, sound, decision-making in accordance with policy and best practice."

The Authority also referred to two police investigations into the incident - one an employment investigation and the other a criminal one.

"[The IPCA] is conscious of the conflict between its findings and those of both [those] investigations carried out by Police, despite all three inquiries considering the same evidence.

"The Authority considers that both Police investigations failed to critically and objectively analyse the evidence and, therefore, the findings (that Officer H's actions were justified and lawful, and did not amount to misconduct) are unsustainable when measured against the Crimes Act and [police policy around use of force]."

It said in light of its findings, it was particularly disturbing that the criminal investigation concluded that Officer H's actions were commendable.