Formal Complaint to Liverpool Echo Article about What a Bouncer Can Legally Do in a Confrontation

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I have written this email and sent it to the Editor in Chief of the Liverpool Echo today 19th April 2017, in response to a story published in their paper yesterday about “What can a bouncer LEGALLY do to you in a confrontation?”

http://www.liverpoolecho.co.uk/news/liverpool-news/what-can-bouncer-legally-you-12911126

I am shocked that people would publish such inaccurate information in such a way, and for such a reason. But i guess it shows just how little people actually know about the law and why they need to be better informed. We all are capable of making mistakes, but its about how we respond to those mistakes, and the cost to others of such inaccuracies.

Its a bit of a long one, so grab a cup of tea and settle in!

All the best,

Mario

P.s. i will keep you informed if i get a response.

Dear Alastair,

I found your details on the Liverpool Echo website as the Editor of the Echo so I thought I would come to you directly with this complaint, however i have cc’d it to Jenny Kirkham & Liam Thorp as they are the authors of the piece.

I am writing to you with regard to a story published in the Liverpool Echo & written by two of you team mentioned above. Having read the story on social media i know the content in respect of the legal authority of a Door Supervisor that the article refers to, is factually and legally incorrect. I am not sure who has given or researched the legal aspects of this story, but they have supplied legally inaccurate information that you in turn have printed within this story.

http://www.liverpoolecho.co.uk/news/liverpool-news/what-can-bouncer-legally-you-12911126#ICID=FB-Liv-main

I have read the article and it is currently trending on Facebook amongst the security groups and I have to tell you it’s causing a bit of a stir. Reason being that what you team have reported as to the fact about what a Door Supervisor legally can do. What the story is main about, the possible assault on a member of the public i am not commenting on as i dont know the complete facts of the case.

To give you an idea of my background (I have already sent you a link via Linkein), i am a door supervisor of over 34 years, and a SIA Door Supervisor Trainer of over 13 years that has trained over 500 door staff, a qualified use of force expert of over 14 years, with a diploma in the prevention of management, violence and aggression, and i have run my own security company in London for over 20 years.

Now the story I have read in your paper yesterday if written well I would applaud you and your team, as credit where its due and all that. However, sadly that’s not the case as it’s not only Factually incorrect its also legally incorrect which causes a major problem especially for Door Supervisors but also for customers that have read that story.

Why i imagine is obvious as every customer that may now believe they know the law (as reported by your paper) actually doesn’t, and that will be a direct cause of this story published in your paper. This could affect not only the safety but also the liberty of the public, and Door Staff, not to mention the inaccurate and false claims that could be made to police that could lead to much wasted time and money by the police and authorities.

Knowing this industry as i do, every bar room barrister, or legal expert will now cite your article to door staff when they are of course not drunk and have done nothing wrong. As so many do every night of the week that SIA Licensed Door Supervisors have to deal with.

The main issues within the story that i refer to are the claims relating to: 

What are bouncers not allowed to do?

Bouncers are not entitled to engage in the use of force unless they are first threatened with physical harm.

Thus, unless they are approached with physical threats of harm, bouncers are not permitted to:

  • Strike a patron with a punch or kick
  • Push or physically throw a person out of the establishment
  • Restrain them in a chokeholds or other techniques

The issues here are:

Article Quote: Bouncers are not entitled to engage in the use of force unless they are first threatened with physical harm & the claim Strike a patron with a punch or kick

Fact: Door Supervisors are allowed legally to use such force as in Reasonable, Proportionate and when Necessary and they don’t have to wait to be physical threatened as your article claims and a Door Supervisor (less emotive than bouncer don’t you think but that depends on the writer objectives) may Strike a patron with a punch or kick if they deem it necessary, reasonable and proportionate. Both of these inaccurate claims in your article are defined in accordance legislation. Legislation including:

Section 3.1 of the criminal law act 1967 when;

(1)A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

(2)Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.

Legislation also includes: Section 110 of Serious Organised Crime and Police Act (SOCPA) 2005

There is also the principal civilian powers of arrest and where force can be used, these have been substantially amended by the implementation of section 110 of Serious Organised Crime and Police Act (SOCPA) 2005. The citizen’s new powers of arrest can be found in section 24A, PACE 1984.

This legislation states that: Members of the public (other than constables) may now only arrest for “indictable” offences.

  • There are 2 conditions which apply:-
    • That there are reasonable grounds to believe the arrest is necessary for a reason specified and
    • It is not reasonably practical for a constable to make the arrest
  • The reasons specified are to prevent the person in question:
    • Causing physical injury to himself or any other person
    • Suffering physical injury
    • Causing loss of or damage to property
    • Making off before a constable can assume responsibility
  • Any force used to affect the arrest may be an assault and unlawful; and
  • Any force used to resist the arrest may be lawful (see R v Self 95 Cr. App R. 42).

However in (R v Lee, TLR 24 October 2000), it was held that when a defendant was charged with assault with intent to resist arrest, it was irrelevant whether the defendant honestly believed that the arrest was lawful. Members of the public (as well as police officers) may take action, including reasonable force, to prevent a breach of the peace, which would not necessarily involve exercising the formal powers of arrest.

Also Common Law that states:

A person may use such force as is reasonable in the circumstances for the purposes of:

  • self-defence; or
  • defence of another; or
  • defence of property; or
  • prevention of crime; or
  • lawful arrest.

 

In assessing the reasonableness of the force used, prosecutors should ask two questions:

  • was the use of force necessary in the circumstances, i.e. Was there a need for any force at all? and
  • was the force used reasonable in the circumstances?

The courts have indicated that both questions are to answered on the basis of the facts as the accused honestly believed them to be (R v Williams (G) 78 Cr App R 276), (R. v Oatbridge, 94 Cr App R 367).

And it also states that the decision to use force:

To that extent it is a subjective test. There is, however, an objective element to the test. The jury must then go on to ask themselves whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive.

It is important to bear in mind when assessing whether the force used was reasonable the words of Lord Morris in (Palmer v R 1971 AC 814);

“If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken …”

In respect of perceived threat, vs actual physical threat, there is mention in law to the use of a Pre-emptive strike, this states:  There is no rule in law to say that a person must wait to be struck first before they may defend themselves, (see R v Deana, 2 Cr App R 75).

That’s also not to mention:

 

There also reference to the right to use force within the Human Rights Act.

Here’s a great link from the police college library: http://library.college.police.uk/docs/APPref/use-of-force-briefing.pdf

Here are a few others from the CPS website about use of force and self defence:

http://www.cps.gov.uk/legal/s_to_u/self_defence/

http://www.cps.gov.uk/legal/s_to_u/self_defence/#Use_of_Force

http://www.cps.gov.uk/legal/s_to_u/self_defence/#Pre-emptive

http://www.jsbni.com/Publications/BenchBook/Pages/5-8-Self-defence.aspx

The article also claims:

 Article Quote: Push or physically throw a person out of the establishment

Fact: A person that remains on a licensed premises once permission to be on premises has been removed (so asked to leave by door staff) is committing a offence under the Licensing Act 2003. It states:

Section 143 of the Licensing Act 2003 – Failure to leave licensed premises etc.

(1)A person who is drunk or disorderly commits an offence if, without reasonable excuse—

(a)he fails to leave relevant premises when requested to do so by a constable or by a person to whom subsection (2) applies, or

(b)he enters or attempts to enter relevant premises after a constable or a person to whom subsection (2) applies has requested him not to enter.

(2)This subsection applies—

(a)to any person who works at the premises in a capacity, whether paid or unpaid, which authorises him to make such a request,

(b)in the case of licensed premises, to—

(i)the holder of a premises licence in respect of the premises, or

(ii)the designated premises supervisor (if any) under such a licence,

(c)in the case of premises in respect of which a club premises certificate has effect, to any member or officer of the club which holds the certificate who is present on the premises in a capacity which enables him to make such a request, and

(d)in the case of premises which may be used for a permitted temporary activity by virtue of Part 5, to the premises user in relation to the temporary event notice in question.

(3)A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 1 on the standard scale.

(4)On being requested to do so by a person to whom subsection (2) applies, a constable must—

(a)help to expel from relevant premises a person who is drunk or disorderly;

(b)help to prevent such a person from entering relevant premises.

So in summary, as failure to leave licensed premises when requested by Door Supervisors being a person to whom subsection (2) applies, someone (a)to any person who works at the premises in a capacity, whether paid or unpaid, which authorises him to make such a request, or the manager / license holder is defined as a criminal offence a Door Supervisor may use Reasonable force to remove a person that is committing an offence under common law and also criminal law act 1967.

Helpful links:

http://www.legislation.gov.uk/ukpga/2003/17/section/143

The Article Further Claims:

Article Quote: Restrain them in a chokehold or other techniques

Fact: There is no law to prevent these techniques, as with using prone (face down restraint) however there is best practice that says it is not recommended to use such techniques as there is a higher risk of harm by using such restraint techniques. We could refer to the health and safety at work act that states we should use safe systems of work. And these forms techniques could be defined as unsafe systems of working, but that is at a stretch and Door Supervisors could not be arrested or charged by the police for breaking health and safety legislation. That would be a matter for HSE and their legal team to pursue, or perhaps a coroner if a fatal incident were to occur.

So in summary, the article claim is incorrect as there is no legal responsibility not to use such techniques there is only best practice but there is mention in legislation both criminal law and common law of using such force as is reasonable and proportionate when necessary, and as mentioned in the above the words of Lord Morris in (Palmer v R 1971 AC 814);

“If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken …”

In conclusion I hope this information will help to prove without doubt that the article in Liverpool Echo on 18th April 2017 is legally and factually incorrect. This kind of inaccurate reporting could endanger the safety an liberty of your readers and those that may have seen this article quoted else where on social media and then relayed by word of mouth.

I understand that a responsible news paper such as the Liverpool Echo would not wish to mislead there reader and give them information that is untrue, so I would request that your reporter retract what they have written and replace the article with a less biased and more constructive article that provides accurate information.  Especially in light of the tough job that Licensed SIA Door Supervisors do in your fine city. Also when you consider one of your latest articles where a Doorman – not bouncer in this story has been stabbed in the head. http://www.liverpoolecho.co.uk/news/liverpool-news/doorman-stabbed-head-liverpool-city-12912831

You could report and raise awareness on the fact that legally you aren’t allowed to drunk on licensed premises, or you cant attempt to gain entry to licensed premises when drunk. Which is why so many people are refused or ejected by Door Supervisors from licensed premises.

Can I suggest that perhaps your reporters attend a upcoming conference being help in Liverpool at the John Moores University on 22nd June 2017, where you are lucky enough to have some of the world top speakers on the subject of Use of Force in attendance. The link is here and I can’t recommend it enough. http://www.nfps.info/nfps-2017-conference

I don’t really know your paper but I do know all to well what the countries 203,311 licensed Door Supervisors have to put up with day in day out.

These necessary night time economy staff, that without the nations licensed premises, events or police couldn’t do without, that include our sons, daughters, mothers, fathers and grand parents have to put up with more abuse, assaults, and injuries than any other profession in the land. As reported after a study carried out by the Security Industry Authority. https://www.sia.homeoffice.gov.uk/Documents/research/sia_ds_impact.pdf

So instead of making these vital staff out to all be monsters, how about your paper stepping up as a paper that supports working people, and champion these people and give them the credit they so richly deserve instead of the one sided, inaccurate hatchet story that I and many other people read in your paper yesterday.  These staff in the main come into contact with 1000s of people every day. They protect life, save lives and provide such a valuable service to the public and business, and that get paid an hourly rate in many cases that is less than bar staff, or cleaners.

I would appreciate your response to this matter, and when your paper prints a reviewed version of the story, which I think is only right and proper, I would appreciate it if you send a link to me so I can show what a responsible newspaper you actually are. Also i have read what you feel about the importance of getting things right first time. Now that may not be possible in this matter but we can get it right this time and that is what really matters to me and also the SIA Licensed Door Supervisors & security operatives that work every day in our licensed premises and events.

In the sprit of openness I want to let you know that I will make this correspondence open to the public, as I feel it needs to be, and I mean this in no way as prejudice to you or your newspaper, but working door staff and security staff need to know their legal rights and authority has not been effected by the contents of this article. I will of course keep your email details private as a curiosity to you all, although I do realise that they are not hidden and fairly easy to find. But that’s not my place at this stage to reveal them.

Feel free to contact me on the number or details below if you would like to discuss this matter.

Thanks in advance, and I look forward to hearing from you in due course.

Sincerely

Mario Garcia


THE RESPONSE FROM THE LIVERPOOL ECHO TO MY COMPLAINT

Here is the link to the response to my Formal Complaint from Chris Walker the Regional Managing Editor of the Trinity Mirror North West & North Wales Ltd, Senior Managing Editor, Trinity Mirror Regionals on 20th April 2017

http://achilleus.co.uk/response-liverpool-echo-bouncers-can-legally-complaint-april-2017/