Lamothe & Ors v Commissioner of Police of the Metropolis [1999] EWCA Civ 3034

EWCA-Civ

Lamothe & Ors v Commissioner of Police of the Metropolis

[1999] EWCA Civ 3034 · 1999-10-25

THE LORD CHIEF JUSTICE:

This is an appeal by the claimants by leave of the judge against an order of His Honour Judge Knight QC sitting in the Central London County Court on 17 May 1999. On that date the judge refused to set aside an order which he had made on 12 May on an application by the defendant, in the absence of the claimants and without notice to them. The central issue in the appeal is the propriety of the procedure which led to the order of 12 May.

The proceedings arise out of a police raid on 19 December 1995 on a council flat at 56, Pym House, Overton Road, London SW9. The tenant of the flat is the second claimant in the action, who was present at the time of the raid. Also present were the first claimant (the estranged husband of the second claimant), two daughters of the first and second claimants, who are the third and fifth claimants in the action, and two grandchildren of the first and second claimants, who are the fourth and sixth claimants in the action. There is another grandchild mentioned in the pleading, but not as a claimant.

The proceedings were issued on 14 December 1998 and were therefore governed by the old rules. The particulars of claim alleged that the police broke into the flat, and claims are pleaded in false imprisonment, assault, trespass and negligence. Particulars of those claims are given and special damage is claimed, plus damages for personal injury, aggravated damages and exemplary damages.

The facts are set out in the particulars of claim in considerable detail. Among other things it is said that, in the course of the raid, the police said that they were looking for a man called "Jungle Joe".

In the defence issue was taken with all the claimants' claims. Issue was further taken with a number of the pleaded facts concerning the raid itself. Further, a number of additional facts were pleaded. These included the murder of a man named Ayodele Odamitten in a flat in Battersea in July 1995; interviews by the police with a man named Joseph Benjamin Williams, whom the police believed to be a violent and dangerous cocaine addict; the belief of the police that Williams was the murderer of Odamitten; the ignorance of the police of Williams' whereabouts; surveillance by the police of Williams' known associates, including a known drug user named Andrea Piggott; evidence that on 19 December 1995 the police followed Andrea Piggott to Pym House, where the police suspected that she went to number 56 and there met Williams; the belief of the police that Williams was likely to resort to violence to resist arrest; the summoning of the Territorial Support Unit, who broke their way into the flat at No 56, searched it, and subdued the occupants; failure to find Williams, who was however caught three days later. We now know that he confessed to murder and was in due course convicted.

The most material paragraphs of the defence for present purpose are these:

"7. In order to track down Williams surveillance officers targeted his known associates and venues. One such associate was Andrea Piggott, a known drug user.

8. On the evening of 19th December 1995 Andrea Piggott was followed by police officers to Pym House on the Overton Road Estate, Brixton where the officers reasonably suspected that she went to No 56 ('the premises') and met with Williams who was hiding therein.

....

29. Meanwhile other officers forced open 2 internal doors which were locked. One of the doors had been locked from the inside. When the officers forced entry to this room they discovered that the patio doors which led to a small balcony at the rear of the premises were open (although it was raining heavily). The officers reasonably suspected that Williams had been in that room but had escaped via the said balcony."

In paragraph 39 of the defence reliance was placed on sections 17 and 117 of the Police and Criminal Evidence Act 1984. The relevant provisions of section 17 are these:

"(1) Subject to the following provisions of this section, and without prejudice to any other enactment, a constable may enter and search any premises for the purpose --

....

(b) of arresting a person for an arrestable offence."

Section 17(2) provides:

"Except for the purpose specified in paragraph (e) of subsection (1) above, the powers of entry and search conferred by this section -- (a) are only exercisable if the constable has reasonable grounds for believing that the person whom he is seeking is on the premises;".

Section 117 (which it is unnecessary to recite) permits the use of reasonable force in some circumstances.

The burden of proof in a case such as this is on a defendant who must seek to justify what would, in the absence of reasonable grounds of belief, be an unlawful entry, assault and detention. The obligation is on a defendant to particularise the grounds of his belief. This is made plain by Order 18, rule 12 of the Rules of the Supreme Court then in force, which were applied by analogy in the County Court. With particular reference to the pleading of a cause of action such as the present, one finds a note in the White Book at paragraph 18/12/17 which reads:

" False imprisonment -- Where the defendant justified the arrest of the plaintiff on the ground that the defendant had reasonable and probable cause for suspecting that a felony had been committed, and that the plaintiff had committed it, he was ordered to give particulars of the alleged felony and also of the reasonable and probable cause for suspicion, but not of the names of those who had given him information against the plaintiff( Green v Garbutt (1912) 28 TLR 575, CA; and see Stapeley v Annetts [1970] 1 WLR 20; [1969] 3 All ER 1541, CA)."

In the light of those provisions the claimants were dissatisfied at the lack of particularity in paragraphs 8 and 29 of the particulars of defence. They applied to strike out those paragraphs under Order 13, rule 5 of the County Court Rules, which still prevailed.

This application was fixed to be heard at midday on 17 May 1999. So far events had followed a very normal course. There then however occurred an event which was procedurally extraordinary. Without any notice to the claimants, and without issuing any process, the defendant made application to the judge on 12 May. The nature of that application is best gathered from the judgment which the judge then delivered. He summarised the pleadings; he made reference to the application to strike out; and he observed that the application was made without notice within the provision of Part 23, rule 23(9) of the Civil Procedure Rules. We have had the opportunity to look at the rules, and it seems plain that Part 23(9) did not provide authority for the judge to entertain this application. Reference for that purpose should have been made to Part 23.4(1) and (2) of the Civil Procedure Rules and to Practice Direction 23.3(4). Those provisions were not, however, apparently referred to and the judge did not (at any rate expressly) give permission for the application to be made. He did, however, deliver a judgment to which I must refer. He said:

"The reasons why the application is made on this basis become evident from the material which has been placed before me and which I have read and considered. The upshot of the defendant's application is that, by reason of this material and the matters [of] fact which are dealt with in it, it requires that the court make an order on the basis of public interest immunity which would circumscribe the evidence which the defendant's officers would be obliged to deal with at the trial of this action. In short, the defendant seeks an order from me that at the time the defendant's officers entered the premises (that is 56 Pym House) they had reasonable grounds for believing that the person they were seeking, Joseph Williams, was on the premises, and a further order that at the trial of this matter the plaintiffs be prohibited from asking any questions of the defendant's witnesses, the answers to which may reveal the grounds for their belief that Joseph Williams was on the premises.

I have considered this material, and because confidentiality is so vital, I propose to say nothing more about its content in this judgment, other than to say that, having seen it, I am fully satisfied that the order sought is justified and that I am prepared to grant it on application made without notice. In doing that I have considered the fact that notice of my order will be served upon the plaintiffs, although, so it is clear, I order that the evidence upon which my direction is based shall not be served upon the plaintiffs with the order of the court.

As I have said, I have considered the appropriateness of making this order in the light of the plaintiffs' application which I have already mentioned. I raise the question whether it may be appropriate that this matter be adjourned and be dealt with at the same time as the plaintiffs' application. I come to the view, on balance, that it is neither necessary nor appropriate for me to follow that course for the reason that, were the matter to be ventilated on the plaintiffs' application, the ambit of submissions and argument would be no different from those which have been addressed to me today and, in particular, on the basis of the material before me and my conclusions that material would not be available to the plaintiffs for the purpose of making any submissions with regard to the propriety or otherwise of me making this order. In short, therefore, the position of the plaintiffs would be no different on any future hearing than my dealing with the matter without notice today.

In the circumstances, and as I have said on the basis of the material before me, I am prepared to make the order.

I would mention one other matter. I have canvassed with counsel and I have taken into account the effect that this order is likely to have on the plaintiffs' case. I acknowledge that it will have serious repercussions so far as some of the claims are concerned and will affect the basis of those claims and any consequential relief to which they may be entitled if they prove their case. I have to acknowledge that this is an inevitable consequence of the order that I make, but at the same time it does seem to me that certain of the claims will remain unaffected and some of them may be affected to a lesser degree. But, having said that, I do acknowledge that it will have some serious repercussions on their claims and the quantum of them if they are made good. That, I am afraid, is one of the inevitable consequences of making the order which I do in this case."

The judge accordingly made the order of the 12 May which read:

"EX PARTE

IT IS ORDERED THAT

1. At the time the Defendant's officers entered 56 Pym House, Overton Road, London, SW9, they had reasonable grounds for believing that Joseph Williams was on the premises.

2. At the trial of this matter, the Claimants shall be prohibited from asking any questions of the Defendant's witnesses, the answer to which may reveal the grounds for their belief that Joseph Williams was on the premises.

3. This matter to be reserved to His Honour Judge Knight QC."

The reasonableness of the belief of the defendant's officers was a central issue in this action, and this was an issue on which the onus lay on the defendant to establish reasonable grounds for belief. It is furthermore relevant in my judgment that, by virtue of section 66(3) of the County Courts Act 1984, the action for false imprisonment was one in respect of which the claimants had a right to trial by jury.

The general approach to public interest immunity and the burden of proof in a class of case analogous to the present (although different from it), is described by Lord Diplock in his speech in R v Inland Revenue Commissioners, ex parte Rossminster

[1980] AC 952

, 1011D. More directly germane, however, to the present case is the judgment of Diplock LJ in Dallison v Caffery

[1965] 1 QB 348

, 371, where he said:

"Next as to procedure. In arresting, detaining or prosecuting a suspected felon a person is acting in furtherance of the administration of justice. It is a well-settled rule of procedure that the question whether in so doing he is acting reasonably is one to be decided by the judge. It may be that this rule reflects the judicial distrust of Jacobinism among juries at the formative period of this branch of English law; but it can at least be rationalised on the ground that a judge, by reason of his office and his experience, is better qualified than a juryman to determine what conduct is reasonable or unreasonable in furtherance of the administration of justice. In those days, however, the jury was the only tribunal which at common law was competent to determine disputed issues of fact. If there was conflicting evidence as to what had happened, that is, as to what the conduct of the defendant in fact was, the jury alone was competent to resolve the conflict. But when what had happened was established, whether by uncontradicted evidence or, in case of conflict, by the jury's finding of fact, it was for the judge to rule whether the defendant's conduct was reasonable or unreasonable. This is still the position today where an action for false imprisonment or malicious prosecution arising out of the arrest, detention or prosecution of a suspected felon is tried by judge and jury. It is for the judge to decide what facts given in evidence are relevant to the question of whether the defendant acted reasonably. It is thus for him to decide, in the event of a conflict of evidence, what finding of fact is relevant and requisite to enable him to decide that question. But a jury is entitled to base findings of fact only on the evidence called before it and, as in any other jury trial, it is for the judge in an action for false imprisonment or malicious prosecution to decide whether the evidence on a relevant matter does raise any issue of fact fit to be left to a jury. If there is no real conflict of evidence, there is no issue of fact calling for determination by the jury. This applies not only to issues of facts as to what happened, on which the judge has to base his determination whether the defendant acted reasonably, but also to the issue of fact whether the defendant acted honestly, which, if there is sufficient evidence to raise this issue, is one for the jury. (See Herniman v Smith [1938] AC 305). For the reasons already indicated, however, where there is reasonable and probable cause for an arrest or prosecution, the judge should not leave this issue to the jury except in the highly unlikely event that there is cogent positive evidence that, despite the actual existence of reasonable and probable cause, the defendant himself did not believe that it existed: see Glinski v McIver [1962] AC 726."

Thus the claimants in the light of that authority complain that a crucial issue in these proceedings was resolved against them in their absence on the basis of material which was not in evidence, which they had never seen, and which they had had neither any opportunity to challenge nor to address in argument. They further complain that this decision had been taken well before any trial jury had been empanelled.

At the hearing which had been fixed for 17 May the claimants applied to set aside or vary the judge's order made on 12 May. The judge dismissed that application, but he gave leave to appeal against that decision and adjourned the striking-out application. He stayed the proceedings pending the outcome of any appeal.

On 17 May he delivered a further judgment. In the course of that he recited his previous order and he summarised the issues in the proceedings. At page 3 he summarised at some length the submissions made on behalf of the claimants, who criticised in strong terms the unconventionality and (as they submitted) unfairness of the procedure which had been adopted. With reference to that

the judge said at page 4:

"As I have said in probably the majority of cases other than this, those grounds would have been very powerful arguments and would no doubt have caused the court to have considered very carefully before acceding to an application of the sort made in this case.

Nevertheless, when the application was made and I acceded to it, by making the order I did, I did have all those arguments in the forefront of my mind, and I was very much alive to making an order which would fly in the face of all the known and acknowledged rules which governed our procedure. Nevertheless, it seemed to me then that the circumstances were such to justify the order that I made and because of the exceptional circumstances it did not seem to me that any benefit would flow from the postponing that order until I heard the matter inter partes in the form of Mr Thomas's application to strike out. In any event, having made the order, it did and does avail Mr Thomas to apply to set aside or vary the order that I made, and that is the course he took.

I ought to add one other matter, that if there was a way of me dealing with the application other than in the way I have, and by that I mean the order and perhaps not necessarily the timing of it, that is whether it was properly a matter to be dealt with by way of an application without notice or as part of an inter partes application, I would have been only too pleased to do so. But I have racked my own brain, such as it is, to devise a method of achieving that and I have also had the benefit of the submissions of the defendant, and I regret to say that I have not been able to come up with a solution to the dilemma facing the court in this particular case. It does mean, of course, that the claimant is put into the unenviable position of having their claim seriously affected by the order which I have made. It will not have eliminated it but will undoubtedly have reduced it to some considerable effect. That is a matter which lay heavily with me, but as I have said I cannot see any alternative way of going about this particular matter, and although it is unusual, and perhaps unique, so far as my experience is concerned, in this case I have to articulate a judgment without being able to go into the sort of detail as to the basis upon which that is made, other than to express my satisfaction on the material which has been before me and, of course, which the claimant has not had sight of, that such an order is appropriate.

I may be wrong about that and if there is some other conceivable way of providing what would appear to the claimant a more just and open solution I hope it can be found, but I have to say so far as I am concerned I have not been able to do that. It seems to me to be a case where, and as I say in my experience it is unique, there is a direct conflict between the interests of the private litigant and the public interest which can only be resolved in the way in which I have."

It is apparent from those observations that the judge recognised that the procedure adopted had been unorthodox, not apparently warranted by any rule of court, and potentially prejudicial to the claimants. Represented by Mr Blake QC today, the claimants put the case very simply. They say that this procedure was contrary to the principles upon which English justice has been administered for centuries; that it is directly contrary to the overriding objective set out in Part 1.1 of the Civil Procedure Rules; and moreover that the procedure is plainly contrary to

Article 6 of the European Convention on Human Rights

. They submit that the situation is not one which justified resort to such an extraordinary departure from the ordinary rules of procedure.

Although, on behalf of the defendant, Mr Ley-Morgan has urged the court to give guidance as to how the court should handle matters of this kind, I for my part, certainly at this stage, decline to do so. Procedurally the situation, however embarrassing, is not complex. The claimants have applied that paragraphs 8 and 29 of the defence should be struck out as disclosing no defence, their complaint being a lack of particularity. Faced with that application the defendant had, and still has, three choices. (I ignore the theoretical possibility that he might adopt a different course in relation to the two subject paragraphs.) His first possible course is to accept that the paragraphs should be struck out, with such consequential orders as may be appropriate. The second course theoretically open is to contend that paragraphs 8 and 29 are unobjectionable as they are currently pleaded. The third course (which may of course be combined with the second) is to accept that the paragraphs are objectionable as they stand, but submit that they can be saved by amendment and the addition of appropriate particulars. If the defendant were minded to adopt course 1, it would plainly be appropriate to notify the claimants before the return date in the County Court and make proposals as to what ancillary orders would be appropriate. If he wishes to adopt course 2, then he will simply return to the County Court and make submissions upon which the judge will rule. If, however, he wishes to pursue course 3, then the normal course would be to supply the claimants and the court with a draft of any proposed additional particulars. Either the claimants would accept that those particulars meet the complaint of lack of particularity, which the claimants have made, or, if not, they would persist in their application to strike out. Again, the judge would rule.

This court cannot of course advise the defendant which course he should adopt, nor predict the outcome of any of those courses. It may be right to infer that the defendant does not wish to pursue course 1 and has no confidence in course 2 on its own. The probability may be that the defendant feels inhibited from disclosing information which would be the proper subject of a claim for public interest immunity. The solution to that problem is to give such general particulars as the defendant can give, without disclosing any information which would be the proper subject of such a claim. If it is contended that the particulars are still inadequate, argument can take place at that stage. It is perhaps, however, worth pointing out that there are passages in the claimants' skeleton argument in this court which may give the defendant some encouragement. In paragraph 21 the claimants submit:

"Pleading the existence of facts giving rise to reasonable grounds for suspicion does not require informers to be identified, or documents or other information to which public interest immunity attaches to be disclosed. Debate about public interest immunity takes place in the context of argument on disclosure, where the issues are clear, the relevance of the withheld information can be ascertained, and the necessity for the documents or information to be disclosed can be judged in the light of available alternatives (including the administering of interrogatories): c.f. observations of Lord Woolf in Chief Constable of the West Midlands v Wiley [1995] 1 AC 274 at 288D-H."

The claimants further submit that the application made by the defendant in this case was in any event premature. They submit that the defendant merely needed to state whether the reasonable grounds were based on either:

" (i) surveillance by his police officers,

(ii) surveillance by other means, eg such as electronic devices,

(iii) or from information from a reliable informant(s)."

It may very well be that it would not be necessary for the defendant to be as specific even as that. But that is not a matter, as it seems to me, for us at this stage.

Now, of course, these matters fall to be considered under the new rules. It appears that the requirements so far as the content of the defence is concerned are to be found in Part 16.5(1) of the Civil Procedure Rules, and there is a power in the court under Part 18.1 to require the giving of further information. Nothing that I say should in any way be regarded as tying the hands of the procedural judge who comes to deal with this matter. He may, for example, think it right to order the delivery of witness statements instead of ordering further information in the form of particulars; he may think it right to order both. It is a matter for him. What happened here however is in my judgment something which cannot on any showing be regarded as acceptable since it violated fundamental rights of the claimants and cannot be allowed to stand.

I would accordingly allow the appeal against the order of 17 May and set aside the order made by the judge on 12 May. I would order that the matter be remitted to the Central London County Court for determination of the claimants' application to strike out paragraphs 8 and 29 of the defence, and I would direct that the matter be heard before a different judge, since Judge Knight has been exposed to material which he should not have seen and on which he has founded an opinion.

I should make it plain that we have read, but paid no attention, to material placed before the judge on 12 May, which the claimants have never seen. We have attached no weight to a skeleton argument submitted on behalf of the defendant because a copy of that document has not (deliberately) been made available to the claimants. We have furthermore refused an application made on behalf of the defendant that we should hear submissions from him in the absence of the public and in the absence of the claimants or any representative on their behalf.

Counsel representing the defendant was asked for procedural authority which would justify the taking of such a course. He made reference to R v Davis, Johnson and Rowe

[1993] 1 WLR 613

(1993) 97 Cr App R 110

. That of course concerned the power of the prosecutor to seek leave not to disclose to the defendant material which was alleged to be the subject of an apparently good claim to public interest immunity. That is in my judgment a problem very distantly related to the procedural problem in this case and gives no assistance.

Counsel has also drawn our attention to CvS and others

[1999] 1 WLR 1551

[1999] 2 All ER 343

. That again was concerned with disclosure and the judgment of the Master of the Rolls contains a detailed discussion of procedural devices which may be adopted to solve the problems arising from the disclosure of sensitive material. Questions of disclosure of material raise special problems, as is recognised when, as happens on applications to a judge in support of a claim of public interest immunity, the judge himself may read material which is not disclosed to the opposing party. That, however, in my judgment is a very long way away from what happened here, which was the resolution of a central issue in the action in the absence of the claimants and without notice to them, and without any evidence being called, in a matter which would in due course be the subject of jury trial.

Counsel for the defendant has made it plain that he is in receipt of clear instructions to make no submissions on the factual background to this case, save in the absence of the claimants and their representatives and, on our refusal to entertain such application, he made no submissions. He has in my judgment been similarly unable to advance any reasoned justification for the procedural course adopted here. He has simply urged that it was dictated by practical necessity if the defendant were to escape a potentially large and potentially unjustified liability. In my judgment this matter can be adequately addressed by the procedure to which I have earlier referred and did not justify this extraordinary departure from well-known rules of procedure.

LORD JUSTICE MAY: I agree that this appeal should be allowed for the reasons given by my Lord, and I agree with the consequential orders which he proposes.

The appeal concerns a civil jury action in the County Court in which claimants bring proceedings against the Metropolitan Police Commissioner. One central issue appears to be going to be whether police officers had reasonable grounds to believe that a man called Joe Williams, who was then suspected of being a murderer, was at 56 Pym House, Overton Estate, Brixton, when they entered those premises by force on the evening of 19 December 1995. The question arises under section 17 of the Police and Criminal Evidence Act 1984. It is for the defendant to establish those reasonable grounds for belief. The essential question which is raised before us is whether the judge's decision of 12 May 1999, to which my Lord has referred for its terms, and which the judge confirmed at a hearing on 17 May, was a proper one. The judge then decided that the police officers did have reasonable grounds for believing that Joseph Williams was on the premises and that at the trial the claimants should be prohibited from asking any questions of the defendant's witnesses, the answer to which might reveal the grounds for their belief. The decision was made at a hearing on 12 May of which the claimants had not been given notice and which they did not attend, and upon information provided to the judge which has to this day been kept secret from the claimants. Further, the decision was made well before the procedural preparations for trial had been completed, and necessarily before the trial itself. It was a decision which purported to determine the substance of part of the case.

There is in my view a clear distinction between, on the one hand, a procedure such as that described in CvS

[1999] 2 All ER 343

for determining whether sensitive material need not be disclosed, and so would not become available for evidence, and, on the other hand, deciding a substantive issue in the proceedings upon evidence which is given and adduced in the absence of the claimants.

In my judgment there is no doubt but that the application to which the judge in this case acceded should not have been entertained, and that the decision which the judge made certainly should not have been made. Leaving aside any question of the respective functions of judge and jury in cases such as this at trial (see Dallison v Caffery

[1965] 1 QB 348

, 372), the proper time for determining the substance of the question whether the police officers had reasonable grounds for believing that Joseph Williams was on the premises would be after all the evidence had been heard at trial, such evidence being adduced in the presence of all parties, or at least at a hearing which all parties were entitled to attend. Whether this case gets that far, and if so what the relevant evidence will be, remains to be seen. That will depend on what facts the Commissioner seeks to establish; whether those facts are capable of amounting to reasonable grounds for belief; what documents are disclosed; and what evidence is called.

That is for the future. For the present I agree that this appeal should be allowed and the order set aside. I agree with my Lord that it would not be appropriate on this appeal for this court to give general guidance about how the police might proceed in cases such as this. But it seems to me that if, in a case such as this, it has to be decided whether, for instance, documents otherwise discloseable do not have to be disclosed for public interest immunity reasons, a judge, who in deciding this has to look at material which is after consideration withheld, should not be the judge who conducts the trial. This is because any decision which the judge at trial may have to take such as is described in Dallison v Caffery should be made without having seen material which in the event does not become evidence in the case.

MR BLAKE: I ask my Lords to make the order indicated, and may I have costs here and below?

MR LEY-MORGAN: I do not think I can resist that application for costs.

MR BLAKE: I am legally aided and I ask for legal aid taxation.

THE LORD CHIEF JUSTICE: Very well. We shall make the order already indicated. We shall order that the claimants have their costs here and below, and we shall make an order for legal aid taxation.

ORDER

Appeal allowed with costs here and below; order of 12 May to be set aside; case to be remitted to the Central London County Court to be reheard before a different judge; legal aid taxation.