In 2017 I was involved in a court in a case against a young school teacher, a 27-year-old man, who was charged with common assault for causing injuries to an eight-year-old child during a restraint in a school.
I was acting as the expert witness on behalf of the Crown (the prosecution).
Background To The Case
In brief summary of the case, the defendant was a level four teaching assistant who was asked by another teacher to remove an eight-year-old male pupil from a group circle.
He did so by initially grabbing the pupil by the hands or wrist area and moving him out of the group. He then went to transition his hold into what is commonly known as a basket hold or as some agencies call it, a wrap. In doing so, which you can clearly see on the video, the defendant’s (the teaching assistant) arm, going around the child’s neck area.
The next video camera shows them exiting the classroom and entering a corridor with the child in what can be clearly seen in a basket hold.
The Child Drops To The Floor
As they start to move down the corridor, the child drops to his knees, this has the effect of making the child’s arms rise up around the neck area. Now, you couldn’t clearly see from the video that the teaching assistant had the child’s arms around his neck area, but the medical evidence and the photographs do show bruising to the neck, and the medical professional said that the injuries to the child were consistent with the form of restraint that had taken place.
The child then refused to move from the floor and the teaching assistant can be seen picking the child up. He did so by placing his right arm under the child’s left armpit, holding the child’s right arm with his left hand, and carrying him along the corridor, through a refectory area, and onto a couch, approximately 20 metres. In the video, you can clearly see the child’s legs off the ground and that the child is in pain.
“Let Me Go. You’re Hurting Me!”
Also, we witnessed the child’s evidence in court by video, with the child stating that he had been saying to the teaching assistant that he was in pain, and he was crying and asking the teaching assistant to “Let me go.”
The teaching assistant however, denied that that was said. But from his position behind the child, he may not have had subjective awareness of the child’s distress.
The child was then sat on a couch at the end of the refectory area and placed in a single basket hold, or a single seated embrace, depending on how you wish to describe it, and was held there until the teaching assistant was satisfied that the child had calmed down, and he was released.
My Report To The Court
I was asked to write a report for Court, which I did, explaining the implications of the use of the technique. I was asked to report on whether there was an opportunity during the restraint for the child to have been released and de-escalation to take place. I was asked to comment about the nature of the use of force as to whether at any time force was unnecessary, disproportionate, or excessive.
During the court case, I gave evidence to the bench (the Magistrates) in the Magistrates’ Court. The video that I just described to you was played and I read through my evidence and explained the various points in my report to the bench.
Is This a Training Issue?
I was then cross-examined by the defendant’s solicitor. It was apparent that the defence that they were taking was that this was a training issue and not necessarily one of a use of force issue, which really didn’t have any relevance because this was being heard in a criminal court, which deals with criminal issues of assault, not a civil court, which is normally where a training type issue would be heard.
The Defence
The defendant was then called into the witness box. He was examined by his own defence counsel. The conclusion of the defence’s interview was that this was a young man who was committed to looking after children, who wants to become a teacher and who has spent a lot of time and money on getting his teaching degrees. He also does voluntary work at a professional football club coaching young children, and he’s travelled the world working with various charity groups looking after distressed and vulnerable children.
In brief summary, the defence lawyer drew a picture that this was a pleasant and nice young man who wanted to join the teaching profession as a vocation and who had never been in trouble with the police before and that this was his first offence and his first experience of the Criminal Justice System.
The Defendant’s Cross Examination By The CPS Lawyer
The defendant was then cross-examined by the Crown Prosecution Service lawyer, and the Crown Prosecution Service lawyer highlighted the fact that previously, 14 years earlier, the defendant had been arrested by the police and charged and convicted of criminal damage, something that the defence counsel wasn’t aware of, discrediting the defence’s submission that the defendant had never been in trouble before.
The prosecutor also asked the defendant what the outcome was of any internal investigation at the school of the restraint that took place. The defendant stated that he was not guilty of any wrongdoing by the school and that he had acted in line with his training and had done what he was told to do, consistent with the training he’d been given.
The prosecutor then asked for evidence of the internal investigation to prove that the defendant had been found innocent of any wrongdoing. However, the defendant nor the defence counsel could produce any evidence to support the facts.
The Nuremberg Defence
The other thing that was quite interesting was, every time he was asked a question by the prosecution, and during cross-examination, his response, his broken record response was, “I did what I was told to do. I simply followed my training.” For example, when he was asked, “Why did you pick the child up and carry him all that distance, causing pain to child, to take him to the sofa at the end of the refectory area?” His response to that, the defendant’s response was, “I did that because that’s what we were told to do.”
The prosecutor then said to the defendant said, “But surely, as a qualified teacher, as a highly intelligent young man with lots of experience working with children, you should have realised that the child was in distress. You should have used your discretion, and you should have let go.” The defendant’s response to that was, “I’m not allowed to. I have to do what I’m told to do. I have to follow my training and when a child is in crisis I have to move that child to the safe area”, which in this case was a distance of twenty or twenty-five metres to a sofa in a refectory area, where the child was sat down on the sofa and again held in a single-person basket hold or seated embrace.
So, you can see the situation that young man was in, and the prosecutor called it the Nuremberg defence, where basically, I did what I was told, even if it was wrong, I did what I was told. In short, I was just following orders.
Restrictive Practices
Now, for those of you that have any knowledge of this, and lots of you do, I know, that basically the process the defendant was describing is a restrictive practice, because irrespective of whether the child’s going to calm down and whether or not there’s the opportunity for the restraint to stop, the training insists that the staff have to take that child to where he’s told to take him, because that’s what the trainers have told him to do.
In a nutshell, we have a twenty-seven-year-old teaching assistant in Court, charged with common assault, who’d probably invested something in the region of maybe £40,000 or more up to this point in getting educated to become a teacher, who was now basically looking at his future being over.
The Evidence For The Prosecution Was Compelling
The reason I say that is because the medical evidence against the defendant was compelling and my report highlighted all the issues about the issue about the restraint, and was heavily weighted in favour of the prosecution and the prosecution had also proved that the defendant had hurt the child.
So, we have a situation now where a 27-year-old man who’s worked all his life to become a teacher, who, in my opinion, was very committed to children and was not a bad person, was now in court with the evidence stacked against him, looking at a charge of common assault, and if he’s found guilty of common assault, then basically his future as a teacher is over, and potentially, his future of working with children is over. So, this is quite devastating for this young man in court.
No Support In Court
The bit that I found most concerning about the whole case, and I sat through the whole trial, was that no one was there to support this young man. His school didn’t turn up. The trainer who’d trained him in this form of physical intervention, wasn’t there to support him. No one from the training organisation that the defendant was taught by was there to support him. In short, this 27-year-old man was in court on his own with his mother, with no backup and no support apart from his defence lawyer.
I genuinely felt for the young man. It really looked as though his future was over, working with children. However, there came an opportunity during my cross-examination when I was asked a question by the defence counsel, as to whether or not this was a training issue.
I’d already given my overview of evidence to the bench, and I’d stated to the bench that, yes, what the young man had done was wrong, he’d used techniques that he shouldn’t have done, that there was the opportunity many times to disengage and de-escalate and let go, which, because he didn’t, meant that the force became unnecessary at stages, disproportionate and excessive, and as such, he’d assaulted an eight-year-old child.
But I did make the point that this was a training issue and that I’d seen this many times before, where highly intelligent people, a teaching assistant in this case, with possibly more qualifications and a higher academic education than the physical intervention trainer who trained him, was simply following orders because he was basically bullied to do as he was told with no allowance to use any discretion, which, in this case resulted in an inability for a highly educated and intelligent member of staff to think for himself.
Systematic and Causal Failings in The Training System
In my opinion a person was on trial due to systematic and causal factors of a training regime that is designed with failure built-in, because it had taught techniques that have been advised for many years not to be taught and the human failing here was a direct consequence of these systematic and causal factors.
The bench retired for lunch and after lunch the final submissions from the prosecution and the defence lawyer were heard.
The Magistrates Decision
The Magistrates then retired to consider their decision and on returning they found the defendant not guilty.
Although all of the evidence (in my opinion) supported the fact that at times the force used was unnecessary, disproportionate and at times excessive which had resulted in significant harm to a child, the Court took the decision to find the defendant not guilty and we can speculate all day on why, but that was the ruling of the Magistrate on the day so we have to accept that.
We Don’t ‘Hang People Out To Dry’
Now, one thing I’m proud of with NFPS, I am blowing a trumpet here a little bit, is that the trainers I work with and the trainers I’ve got to know over the years as part of the family, do not leave people in positions like this.
They do not ‘hang out to dry’. In a recent situation where a father with a son with learning disabilities and autism had a situation at the boys school, an NFPS trainer went along with the child’s father and supported him throughout the process.
I can only speak for myself and many of my trainers on this one, but if someone I trained had ended up in court on a charge like that, I’d be there.
I am shocked and disgusted that the training provider or the person who trained him, or his school that commissioned the training, were nowhere to be seen and simply left this young man to face the uncertainty of his future alone.
Learn This Very Important Point
So, here’s the learning point that I want you to understand from this case.
Trainers and training providers out there can basically teach anything. They can teach techniques that are advised not to be used. They can teach techniques that coroners have said you should not use because they’ve been implicated in various deaths. They can do this. They can teach techniques that increase risk and liability, irrespective of government guidance, best practice, and evidence to the contrary.
But Why Do They Do This?
It’s simple really, and this is exactly what this case highlighted.
It is generally always the commissioning agency that’s held to account if they choose to accept training that is not fit for purpose because they haven’t done their own due diligence.
And, as was clearly evidenced and demonstrated in this case, if a member of staff ends up using that training and hurts a child, it’s very likely going to be the member of staff who’s likely to be arrested and prosecuted in Court.
So just think about this for a minute. If you are a commissioning agency and you commission training without doing your due diligence, you are leaving your staff vulnerable and open to the possibility of ending up in Court.
In Short, The Training Provider Basically Gets Away With It Scot-Free.
I’m always asked the following question: “Why do some training providers still teach techniques that I’m saying and other competent trainers are saying, should not be taught?”
Well, you just had your answer. It’s because, fundamentally, they’re not the ones that will end up in Court.
So that was the court case I was involved with. If you have any questions, get in touch or leave a comment below.
Check Out Our BTEC Level 3 Trainer Courses
If you’d like to train with a credible training provider that will be there for you long after the training has finished then check out our BTEC Level 3 Restraint Instructor Award Course here – https://nfps.info/physical-intervention-trainer-course/
Or, if you are just looking to deliver Breakaway and DIsengagement Training (not restraint) then check out our BTEC Level 3 Self-Defence Trainer Award Course here – https://nfps.info/self-defence-trainer-training-2023/
Speak soon.
Mark Dawes