Bibby v Chief Constable Of Essex Police [2000] EWCA Civ 113

EWCA-Civ
Bibby v Chief Constable Of Essex Police
[2000] EWCA Civ 113 · 2000-04-06
[1]There must be the clearest of circumstances and a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty a citizen who is not at the time acting unlawfully - Foulkes[2]The threat must be coming from the person who is to be arrested - Redmond-Bate[3]The conduct must clearly interfere with the rights of others - Redmond-Bate[4]The natural consequence of the conduct must be violence from a third party - Redmond-Bate[5]The violence in 4 must not be wholly unreasonable - Redmond-Bate[6]The conduct of the person to be arrested must be unreasonable - Nicol. I consider that this accurately states the law. Of course I accept that it is desirable that violence be prevented. It is also desirable that citizens who are neither doing nor threatening any wrong are not deprived of their liberty. The problem in this type of case is the conflict between these two desiderata. The police are given various special powers under various acts to arrest without a warrant but none of these are relied on here. Mr Johnston relies on common law powers of arrest for apprehended breach of the peace which are possessed not merely by police officers but also by every other citizen. If counsel for the defendant's submission were right it would make the police's own job difficult. Take this situation. A policeman is about to arrest a man who threatens violence to the policeman if the policeman touches him. A passer-by tells the policeman to go away because otherwise there will be a breach of the peace. Is the policeman bound to obey at the risk of himself being arrested by the passer-by ( or indeed the man threatening violence) for provoking a breach of the peace? That can not be right. It would be a charter for anyone who threatens violence. It has not been suggested that the bailiff was not entitled to take the goods away in the absence of payment. He was acting lawfully. He was not threatening to commit any crime. He was not threatening to interfere with any right which the debtor had in the scheduled goods. Nor in my judgment was he acting unreasonably in explaining to the debtor that the latter must either produce what he owed or let the bailiff remove the goods. It was the debtor who was not acting reasonably when he told the bailiff to leave and threatened to call friends to prevent the removal of the goods. There may be room for the assertion that the bailiff was not tactful and that his firmness and size intimidated those in that room. It may well be that the bailiff was at the end of his tether and did not want to have a discussion as to how it came about that he wished to exercise his rights in relation to the goods. It may be, though there seems no reason to believe it, that if the bailiff had engaged in reasoned argument with the debtor the latter would have voluntarily handed over the money or the scheduled goods. It may well be that if the bailiff had left and come back on some future occasion, either in half an hour or the next day, the debtor would have been persuaded by the police to see the error of his ways. But even if all that be so it does not justify the bailiff's arrest. For the debtor to react by violence to such behaviour as the bailiff was likely to engage in would have been unreasonable. I have sympathy for the constable faced with an explosive situation which required fast judgments. No one criticises him for coming to the conclusion that a breach of the peace was imminent. I am prepared to accept that he came to that conclusion on reasonable grounds. But as it seems to me P.C.O'Hare made the same mistake as the constable in Redmond-Bate . He failed to consider where the threat was coming from. True it is that had the bailiff not been seeking to exercise his rights there would have been no threat to the peace. But in circumstances such as these the threat, in so far as there was one, of violence should have been perceived as coming from the debtor rather than the bailiff. I am prepared to proceed on the basis that the debtor was not verbally threatening violence as such. He was however threatening to prevent the bailiff from doing what he could lawfully do and which did not interfere with any of the debtor's rights. Implicit in that was a threat to use violence if the bailiff went ahead. In my judgment the Assistant Recorder fell into error in bringing the Wednesbury case into his consideration. That case is concerned with the limits of discretions in administrative law. The court is not in the present case reviewing a discretion. It is deciding whether a constable was justified in arresting a citizen. The mere fact, if it be a fact, that the constable reasonably thought that a breach of the peace was likely did not in my judgment justify the arrest of the bailiff. Various other grounds were relied on by Mr Johnson in support of the submission that the arrest was unlawful and the detention was too long. In the circumstances it is not necessary to consider them and I do not do so. I only add that, as it seems to me, the use of handcuffs in the circumstances was not reasonable . I would allow this appeal. If my brethren agree I would suggest that upon receipt of our judgments counsel consider what would be the appropriate modest damages which counsel for the bailiff indicated was all that he was seeking. We would be content to receive short written submissions before handing down our judgments as to the proper amount if no sum is agreed. LORD JUSTICE PILL: Mr Leslie Edward Bibby is a certified County Court bailiff. He questions the lawfulness of his arrest by police officers on 13 January 1995 at business premises occupied by Mr and Mrs E Brannan at 8 Broomfield Road, Chelmsford. He was attempting to enforce a liability order made by the Chelmsford Magistrates under Regulation 12 of the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989. Regulation 14 empowers the authority which applied for the order, in this case Chelmsford Borough Council, to levy the appropriate amount by distress and sale of the goods of the debtor against whom the order was made, in this case Mr and Mrs Brannan. The bailiff was attempting to levy distress on behalf of the authority. In his judgment, Schiemann LJ has set out the sequence of events. The bailiff told the debtors that he required cash if they were to avoid the removal of their goods and they quite forcefully told him to leave saying they would call friends to prevent the removal of goods as they had done before. Both parties called the police. The police officer has sought to justify the arrest on the ground that a breach of the peace was imminent. The bailiff had refused his request to leave the premises. It was not suggested that the bailiff had been violent towards anyone else at the premises or had threatened violence. The bailiff had himself said in evidence, however, that there was a serious risk of imminent violence. Constable O'Hare described the bailiff's conduct in this way:
"He just didn't appear to me to be a person who would be reasonable. I actually asked Mr Bibby at some stage to calm down, and he wouldn't. He remained loud and he seemed to be channelled in one avenue, so to speak, and he didn't seem to be prepared to be flexible."
The constable said that he found Mr Bibby to be "quite threatening just by his mere physical presence". Mr Bibby said that he wanted to stand his ground and stay where he was entitled to be. That was his job. He said that Mr Brannan threatened violence to him. There was no finding of fact that the bailiff was likely to strike anyone present. Such a finding would not have been tenable on the evidence. Indeed, the suggestion was not even put to the bailiff when he gave evidence. This type of situation was considered by this court in Foulkes v Chief Constable of the Merseyside Police [1998] 3 All ER 705 . A man was locked out of the matrimonial home which he owned jointly with his wife, following a family dispute. The police told him, as was the fact, that his wife and children did not want him to re-enter the house and the police suggested that he leave the vicinity of the property until tempers had abated. He was arrested when he refused to leave and insisted that he wished to enter the house. It was held that the arrest was not justified. Beldam LJ stated, at p 711, that "... the common law power of a police constable to arrest where no actual breach of the peace has taken place but where he apprehends that such a breach may be caused by apparently lawful conduct is exceptional ... In the circumstances of this case, although I am prepared to accept that a constable may exceptionally have power to arrest a person whose behaviour is lawful but provocative, it is a power which ought to be exercised by him only in the clearest of circumstances and when he is satisfied on reasonable grounds that a breach of the peace is imminent." Beldam LJ continued:
"In the present case PC McNamara acted with the best of intentions. He had tried persuasion but the plaintiff refused to be persuaded or to accept the sensible guidance he had been given but in my judgment that was not a sufficient basis to conclude that a breach of the peace was about to occur or was imminent. There must, I consider, be a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty a citizen who is not at the time acting unlawfully."
In Redmond-Bate v Director of Public Prosecutions (The Times 28 July 1999) Sedley LJ, in the Divisional Court, contemplated a possible situation in which the conduct of a group of persons was "so provocative that someone in the crowd, without behaving wholly unreasonably, might be moved to violence [so that the officer] was entitled to ask them [the group] to stop and to arrest them if they would not". The bailiff in this case was acting lawfully. Indeed, he was attempting to enforce an order of the court. The task of a bailiff is often a difficult one, as the Assistant R ecorder rightly acknowledged. In this case the bailiff's behaviour towards others present was thought by the police officer to be unreasonable and inflexible. It was not found, and could not on the evidence properly have been found, that the bailiff was likely to initiate violence by striking anyone. Insofar as there was a fear of violence, the inference must be that any violence would have come from another source. Nothing the bailiff did, in attempting lawfully to levy distress, could have begun to justify a resort to violence by another person present. In those circumstances, the police officers were not justified in arresting the bailiff on the ground that he declined to accede to their request that he should leave the building he had lawfully entered. I do not of course exclude the possibility that a bailiff, or someone in a similar position, might behave so outrageously, short of violence, that he was likely to provoke a not wholly unreasonable violent reaction from others, thereby justifying his arrest. The unreasonableness and inflexibility which the officers believed to exist in this case fell far short of conduct justifying arrest. In agreeing with Schiemann LJ that the appeal should be allowed, I add that placing the bailiff in handcuffs and taking him in handcuffs through a public place and on the journey to the police station in a police car was in my view wholly unjustified. Even if the arrest had been justified, which it was not, the situation did not require that further indignity. LORD JUSTICE MORRITT: I agree with my Lords, for the reasons they have given, that neither the arrest of the Bailiff nor the use of handcuffs with which to lead him away was justified. I too would allow this appeal.

Order

Appeal allowed; order in terms of agreed minute. (Order does not form part of the approved judgment)

Cited in 1 later judgment