Written by Dick Smith QPM a fellow member of the Association of British Investigators.
Towards the end of April this year, a Process Server and fellow member of the Association of British Investigators (ABI) was assaulted in London. The attending police officers simply did not understand the duties and therefore presence of the Process Server and treated the complaint (from both parties) with contempt towards the member who was carrying out an official duty as part of the judicial process, in favour of the objecting recipient of the legal process.
Writing off crime
The latest available figures show an overall increase in violent crime reported to the Police to have risen by 19% in a year; (BBC ~ January 2019).
With prosecution and punishment less and less likely, not least due to the dramatic fall in police numbers, should we then be surprised that the reaction of the police when called to an assault situation, (and for that matter many other crimes), is to find every opportunity to write it off at the scene? And the simplest way to do that? Blame the victim!
Calculated decisions being made on the streets to downgrade, or ‘no-crime’ certain criminal activity (including assaults) would account to some degree for overall arrest numbers having halved in ten years, (The Independent ~ October 2018).
With the recent worrying trend of assaults on Process Servers undoubtedly increasing, there is, however, a distinct picture emerging that police officers in general are basically ignorant of the functions of this quite lawful occupation and the reaction to being called by one who has been assaulted is along the lines of . . .
· “You are the person who has initiated the situation by turning up on the doorstep!”
· “It’s akin to the activity of a bailiff . . . you should expect to be resisted!”
· “Process serving is to do with civil law, so the Police shouldn’t be involved!”
And this final uninformed attitude is the one which perhaps explains why, in general, the Police appear to be quite willing to accept that a small section of society going about its daily business does not deserve to be protected. It is acknowledged that many recipients of ‘process’ are quite often repeatedly served, so the notion being generated that a process server is “fair game” to an attack, in the full knowledge that the police decline to take action, can only increase the risk of these assaults becoming more serious.
Whilst accepting that assaults during process-serves are comparatively rare, the episode which first focussed my attention on the issue occurred in Gwent back in 2012. On behalf of a well-known law firm, the Process Server, (an ABI member who is also a certified bailiff), attempted to serve a Letter Before Action on a man who was blackmailing a prominent businessman. He declined to open his door, even when shown the bailiff ID, so there was an attempt to letter-box the document. The man, however, became so abusive that the Process Server withdrew to the public footway where he called the Police. Out on the street, he was attacked by the individual, being punched and kicked violently and his phone thrown down a drain. The assault was only stopped by the intervention of a passing off-duty policewoman. The man claimed the Process Server was a burglar and she arrested the Process Server. Uniformed police arrived, refusing even to examine the bailiff ID. The householder was nevertheless also arrested for assault, both detainees being transported in the same vehicle, the Process Server in the lock-up part of the van, the householder in the front passenger seat. That simple demarcation was, in itself, indicative of the continuing Police attitude. At the Police Station, the householder was made aware of the Process Server’s home address; an inexcusable act. The Process Server was locked in a cell for several hours before being interviewed under caution and released to hospital.
Within 48 hours, a threatening letter from the householder was delivered to the Process Server’s home address, demanding £5,000 compensation. The matter immediately fell into the hands of another Police Force; corrective action being taken, and the householder eventually being sentenced to Community Service for assault.
“The whole injustice of the event badly affected me,” the Process Server said this week. “I continue to carry out the work, but now always wear a stab-vest and body-camera. I have not been the slightest bit surprised to read that the householder in question has since been jailed for subsequent violent offences.”
The incidence of these assaults has accelerated in the past twelve months, borne out by just some of the cases reported by ABI members.
In August of last year, another ABI member with 25 years’ experience in process serving wrote, “Earlier this week, I suffered an extremely serious assault when I was throttled from behind without warning and thrown to the ground by an individual when serving a Winding-Up Petition. It happened on business premises in front of several witnesses. I immediately reported the matter to the Police. I have been told that they won’t take a statement from me until next week. I am not confident they will act.” The victim was right to be sceptical. The Police failed to keep the appointment and for the following five months the Police continued to stall despite repeated contact. In the event, he received a phone-call to say a Sergeant had decided not to proceed due to lack of evidence.
The member wrote to his MP, Andrew Murrison, who escalated the matter to the Minister for Justice. The member received a weak response suggesting he pursue the case through civil courts. “I contrast the situation here in the UK,” added the victim, “with the situation in the United States, where such assault is a specific offence . . . Federal Law US Code § 1501 Assault on a process server”
The following month, another Process Server was attempting to serve an individual with a Suspended Committal Order for Disobedience. “Fortunately, I wasn’t really hurt; mainly just shocked,” he said. “I was punched and kicked. When I got to the public footpath, he then tried to rip some wood from a fence before picking up two bricks and coming at me. I reported it to the Police, and they took a statement over the phone, giving me a Crime Number. I know they spoke to neighbours, but they said these people only witnessed the end of the assault and not the punching and kicking. The Police reported back to me that they couldn’t take the case further.
“Assaults and threatening behaviour have become common-place. I work alone and I was grateful to be able to discuss it with my fellow professionals. I particularly did not want to worry my family.”
Within weeks of that incident, another ABI member was punched several times by someone he assumed to be the son of the person he was trying to serve. “I called the Police, but although I had been confronted by two people, each much bigger than me and neither with a mark on them, (and I was the one covered in blood), the officer made me feel it was my fault. He clearly didn’t understand what process serving was, saying that my paperwork didn’t look official and even asked why I was not wearing a uniform!”
The member was told that the assault could only be pursued if he produced an independent witness. “The male that assaulted me claimed it was self-defence, suggesting he had a female witness. I eventually spoke to Professional Standards who admitted no one came forward to make a statement to corroborate self-defence. They told me the police officers who attended didn’t understand what process serving was. Needless to say, it went nowhere. The Police need to be trained properly. I wouldn’t want anyone else going through this!”
Whilst serving divorce papers in the Thames Valley area in February of this year, a member was assaulted and subjected to threats to kill. On this occasion, however, the Police Officer attending understood process serving and was very supportive. The location of the serve was outside the individual’s place of work. “The subject had refused service,” said the member, “so I was calling my office for further instructions when the assault took place. The call was automatically recorded. A copy of the recording was made available to the Police, who duly investigated. However, I was eventually informed that the decision of ‘Charge Review’ was that as the individual had later apologised, he would simply be ‘warned’ to his future conduct. He did not even receive an official caution!
“I believe it is in the interests of our industry that, whenever possible, governing authorities are made aware of these unacceptable examples of threatening behaviour and actual physical assault,” added this further victim. “We serve the public interest and it should be recognised that we are an independent element of the process.”
So exactly what is Process Serving?
Put simply, process serving is the delivery of legal documentation to persons and/or businesses who are generally party to a current or impending legal matter.
There are myriad types of documents which a court may need to be properly served, ranging from a mere letter to a Court Order with a Penal Notice and Power of Arrest. Some may not be court-issued but could follow on from a court action.
Others, such as Statutory Demands, Bankruptcy and Winding-up Petitions, naturally relate to debt. Once judgement has been obtained, it might be necessary to serve a Notice to Attend Court for questioning. The latter will contain a Penal Notice; non-attendance meaning committal to prison. Proper service is, therefore, essential.
Still more will relate to the Children Act 1989, often announcing emergency hearings and all concerning the protection of, or access to children. It might be necessary to serve Injunction Orders bearing a Penal Notice and sometimes a Power of Arrest, or additionally Non-Molestation Orders; all of which are always urgent. The breach of an Injunction might mean the person served can immediately be arrested by any Police Officer without the need for a warrant and can ultimately lead to imprisonment up to five years.
Still further examples include Repossession Orders, for example serving “squatters” or “travellers”.
In recent years, with the Police having abrogated its responsibility in respect of the investigation of commercial fraud, the majority of fraud victims rely where possible on the recovery of losses through the civil courts. So, for instance, it may be necessary to serve a Freezing Order on a less-than-honest commercial enterprise.
Personal service ensures that documents have come to the recipient’s attention. Ideally, a process server will place the document into the recipient’s hand, or as close to their person as practicable; so direct contact is not only unavoidable but the preference of the court. The vast majority of these serves are carried out in a calm, dignified and professional manner and will never descend into adversarial confrontation. In reality, the server is not the creator of any confrontation, merely the messenger.
Why don’t the Police understand?
So, with the humble Process Server providing such an important legal service, why does he/she provoke this general Police antipathy we are witnessing with such increasing regularity? Why is there this in-built reluctance to protect? Is there, for instance some politically-slanted doctrine being taught at Police training schools, which encourages the Response Officer to side with a debtor against some tinpot semi-official who has the audacity to knock on the debtor’s door?
Or is it a case of, “The Job would be great if it weren’t for the public!” How often I heard that flippantly uttered remark during my 30-year service, following some waste-of-time merchant who had caused panic and, perhaps, personal risk to the officer, by reporting some inane imagined incident.
Or is it more likely to be just one more incident in the officer’s over-burdened day which he may think was avoidable . . . if only that stupid Process Server hadn’t kicked it all off!
Actually, I would rather like to think it’s pure ignorance. The Police basically don’t know how the system works . . . because no one has ever taught them.
The remedy . . . improve Police training
No one will ever compensate for the inherently violent individual who decides to vent his anger on the bringer of bad news . . . the Process Server delivering the Non-Molestation Order from his ex-wife or the Stat Demand from the tradesman to whom he owes thousands of pounds.
Yet the attitude of the Police Officer called to the situation could at least be more reasoned with just a little education. We know that training methods for the Police have altered immensely in recent years. No longer are officers required to study criminal law . . . that is what CPS is there for. Reactive, or ‘Fire Brigade’ policing means that in the cold light of day, when everyone is comfortably back at the Police Station, (if such an artefact still exists), when there is an actual suspect then the lawyers will instruct those front-line officers what elements of an offence it is necessary to prove. What has replaced the requirement to have knowledge of the law is the emphasis on police procedures and cooperation with other agencies. At this point in initial or continuation training, here would be a perfect opportunity to expand the schooling of law enforcement officers by including a few minutes on the function of Process Servers.
Hundreds of process-serves take place in the UK every day of the week without incident, all occurring somewhere on the archetypal over-worked Response Officer’s ‘patch’ and totally without his/her knowledge. The perfectly lawful and necessary function only comes to that Officer’s attention when someone gets violent . . . and it’s hardly likely that the Process Server would initiate that. Looking at it logically, is the Process Server really going to create an adversarial situation? Not on your life! All he or she wants to do is serve the papers, complete the affidavit or certificate, submit the invoice and get to the next job.
So, let’s try to get some form of formal Police training introduced and, in turn, perhaps they’ll be more willing to understand and protect a tiny section of society which at the moment is getting short-shrift!
Of course, if we were to manage to get the Police to perform their duty properly and take action against those who react violently to Process Servers, then the next hurdle to overcome would be the Crown Prosecution Service!
Written by Dick Smith QPM