Taylor v Thames Valley Police [2004] EWCA Civ 858

Case No B2/2003/2662[2004] EWCA Civ 858
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE READING COUNTY COURT
His Honour Judge Catlin
Venue Royal Courts of JusticeDate Tuesday 06 th July 2004
Strand,
London, WC2A 2LL
Before
THE VICE-CHANCELLORLORD JUSTICE CLARKELORD JUSTICE SEDLEY
Between
DANIEL TAYLORClaimant/(A child proceeding by his mother andRespondentlitigation friend CM Taylor)RespondentCHIEF CONSTABLE OF THAMES VALLEY POLICEDefendant/Appellant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Brian Langstaff QC and Miss Yvette Genn (instructed by Irwin Mitchell) for Claimant/RespondentMr Edward Faulks QC and Mr Iain Daniels (instructed by Barlow Lyde & Gilbert) for Defendant/Appellant
Judgment

Introduction:

[1]This is an appeal by the Chief Constable of the Thames Valley Police against an order dated 12 December 2003 made by His Honour Judge Catlin in the Reading County Court in which he gave judgment for the respondent, Daniel Taylor, for damages in the sum of £1,500. The order was made after a trial in which it was said that the claimant had been arrested unlawfully and in which he claimed damages for trespass to the person, assault and false imprisonment. The trial lasted some five days and was in part before a jury. Some issues at the trial were determined by the jury and, by agreement, some were determined by the judge.[2]The action arose out of the arrest of the respondent on 31 May 1998. He was only ten years old at the time and was a small boy, being only about 4 feet 9 inches tall. One of the issues at the trial was whether he was sufficiently informed of the reasons for his arrest by the arresting officer, PC McKenzie. The jury were asked to answer and in fact answered three questions. The questions and answers were as follows: Q. Has the Chief Constable/defendant satisfied you that on 31 May 1998 PC McKenzie had formed a genuine suspicion herself that the claimant had committed the offence of violent disorder? A. Yes. Q. What did PC McKenzie say to the claimant, if anything, when she arrested him? A. We believe that PC McKenzie said:
“I am arresting you on suspicion of violent disorder on 18 April 1998 at Hillgrove Farm.”
Q. Has the Claimant satisfied you that it was not reasonable and/or necessary to take hold of the claimant’s arm to effect his arrest and detention? A. No.[3]It was initially agreed that the judge should decide four questions: i) whether the words spoken to the respondent on arrest were sufficient lawfully to effect his arrest; ii) whether PC McKenzie’s genuine suspicion was reasonably held; iii) whether PC McKenzie exercised her discretion in a manner which was reasonable in accordance with Wednesbury principles; and iv) whether the period of time that the claimant was detained was of such length as to make an otherwise lawful detention unlawful.[4]The issue raised by question ii) was abandoned on behalf of the respondent before the judge. The judge was thus asked to answer questions i), iii) and iv). He answered questions i) and iv) in favour of the respondent and question iii) in favour of the appellant. The judge refused the appellant’s application for permission to appeal in respect of the answers to questions i) and iv) but permission was subsequently granted by Scott Baker LJ. The respondent does not challenge the answer to question iii). The issues in this appeal are therefore whether the judge was entitled to reach the conclusions which he did on questions i) and iv).[5]Question i) was whether the arrest was lawful in the light of section 28(3) of the Police and Criminal Evidence Act 1984 (“PACE”), which provides:
“No arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of or as soon as practicable after the arrest.”
It was common ground that the burden of proving that the arrest was lawful was on the appellant. The judge held that he had failed to discharge that burden. The question raised by the first issue in this appeal is whether he was entitled so to hold.[6]Question iv) was whether, assuming the arrest was otherwise lawful, the period over which the respondent was detained was lawful. The judge held that it was not in respect of the period of about an hour between about 20.15 and 21.21 on 31 May 1998. The question raised by the second issue in the appeal is whether the judge was entitled so to hold. It only arises if the appeal on the first point succeeds.[7]I shall consider each of those issues separately but before doing so it is convenient to identify the relevant background facts, all or almost all of which are agreed or not in dispute.

The background facts

[8]I take the facts in part from the account set out in the very helpful skeleton argument prepared by Miss Yvette Genn on behalf of the respondent. In 1998 Hillgrove Farm, Whitney in Oxfordshire was the site of antivivisection protests. On 18 April in that year the respondent and his mother came down from Liverpool where they lived and attended a demonstration at Hillgrove Farm. It was a substantial demonstration involving as many as a thousand people. It was also violent. Significant numbers of people were involved in the violence whom the police were anxious to identify from videotapes and still photographs of the events.[9]There were some 29 video cassettes and 26 albums of photographs. In order to identify those involved, a team of police officers known as spotters viewed the videotapes (and indeed stills taken from the tapes) and attended a further demonstration at Hillgrove Farm which took place on 31 May in order to see whether any of those identified on the tapes were present. The plan was to arrest those suspected of committing public order offences at the earlier demonstration. Some 106 people were identified as possible targets (and given a T number) one of whom proved to be the respondent, who was seen on one of the videos throwing a rock or rocks from an adjacent field in the direction of the farmhouse. He was T42. He was one of 28 people arrested on 31 May on suspicion of having committed offences on 18 April. A number of people were also arrested in connection with the demonstration on 31 May 31, although that demonstration was largely peaceful and there is no suggestion that the respondent committed an offence on that day.[10]Two of the police spotters were Sergeant Deacon and DC Lynch. Although both officers had been promoted to inspector by the time of the trial in 2003, I shall where appropriate refer to them by the ranks which they each had at the time. Sergeant Deacon had reduced the images to a manageable number and on 31 May he had with him a book or album of stills and photographs in order to aid the identification process. It was his role, having identified a particular suspect, to instruct a more junior officer or more junior officers to arrest the suspect. He identified T42 and instructed PC McKenzie to arrest him. She accordingly arrested the person pointed out to her as T42, who proved to be the respondent.[11]The arrest took place at 16.10. As already indicated, the jury found that when doing so PC McKenzie said “I am arresting you on suspicion of violent disorder on 18 April 1998 at Hillgrove Farm.” For reasons which are not the subject of any present complaint, and which may have been connected with the size of the operation, it was not until 18.10 that the respondent arrived at Newbury police station in a police van. His mother had been and continued to be with him throughout. There was then a further delay, during which the respondent was obliged to remain in the van, and it was not until 19.09 that he was presented to the custody sergeant, who was Sergeant Davey, for processing. After processing, at 19.45 he was placed in a detention room. At 20.20 Mrs Taylor complained about the delay and also about the fact that the detention room was oppressive. He was subsequently interviewed in the presence of his mother, who it was eventually agreed could act as an appropriate adult. The interview began at 21.21. It was the period between about 20.15 and 21.21 that the judge held was excessive. The interview ended at 21.53. There was then some discussion about the possibility of a formal caution, to which the respondent agreed. As a result a formal caution was administered to him and he was finally released at 2300.

The proceedings and trial

[12]This action was begun some considerable time later and particulars of claim were served on 7 January 2002. In them it was alleged that the arrest was unlawful and, as indicated above, damages were claimed for false imprisonment, assault and trespass to the person. The basis of the claim was different from that which was ultimately argued before the judge in the light of the jury’s findings of fact. In paragraph 4(ii) it was alleged as follows:
“The Plaintiff was not properly informed of the reasons for his arrest. PC McKenzie did state to the Claimant’s mother that the Claimant had been arrested for a public order offence. However, this was said as the Claimant was being taken to the police van and was not heard by the Claimant. If anything was said to the Claimant about the reasons for his arrest it was wholly unclear and not properly communicated to him. The Claimant first understood the reason for his arrest when he arrived in the custody suite and was told he was suspected of violent disorder on 18 April 1998. His arrest was thereby unlawful and he was thereby unlawfully imprisoned.”
[13]As already indicated, the jury found that at the time of arrest PC McKenzie told the respondent that she was arresting him on suspicion of violent disorder on 18 April 1998 at Hillgrove Farm. It is perhaps an irony that, in the light of the jury’s verdict rejecting the case advanced in the second and third sentences of paragraph 4(ii), those words were and are said to be insufficient to inform the claimant of the grounds on which he was being arrested, whereas in the fourth sentence of paragraph 4(ii) it was said that he first understood the reason for his arrest in the custody suite when he was told that he was suspected of violent disorder on 18 April. It is common ground that he was indeed given that information in the custody suite because there is a record to that effect in the custody record. The information was rather less than the jury found was given to him by PC McKenzie when he was arrested.[14]It is common ground that the above is no more than an incidental irony because it is agreed that the words used (viewed of course in their context) are either sufficient to satisfy section 28(3) of PACE or they are not. Thus both Mr Faulks and Mr Langstaff averred that the subjective state of mind of the claimant or indeed his mother was irrelevant to the determination of that question, although (perhaps naturally) neither could resist referring to those parts of the evidence of actual understanding which he perceived to be of assistance to the result he was contending for.[15]At the outset of the five day trial permission was sought on behalf of the claimant to amend the particulars of claim in two respects. The first alleged that PC McKenzie had not formed a genuine suspicion that the claimant had committed an offence and/or that she did not have reasonable grounds for such a suspicion. However, the first point was rejected by the jury and the second was abandoned and is no longer relevant. The second respect in which it was sought to amend the particulars of claim was to add a new paragraph 4(iii), which is relevant to the second issue in the appeal, and is in these terms:
“Further or in the alternative, even if the arrest is found to have been lawful (which is denied) the period over which the Claimant was detained was excessive and unreasonable in all the circumstances.”
The appellant did not resist the application for permission to amend and it was accordingly granted.[16]The claim for damages included claims for damages for trespass to the person and for assault. However, as I understand it, it is common ground that those claims would only succeed if the claim for damages for false imprisonment succeeded on the basis that the original arrest was unlawful. The judge awarded damages totalling £1,500. The award was made in these circumstances. After the judge had held that the arrest was unlawful, he heard argument on issue iv), during which it was submitted on behalf of the claimant that even if the arrest was lawful, it was excessive to detain the claimant for as long as he was detained. As I read the judgment, it was in effect accepted that on that assumption the detention was lawful between 16.10 and 19.45 and between 21.21 and 23.00, but it was submitted that the interview should have started at 19.45 and that the detention was unlawfully prolonged in respect of the period between 19.45 and 21.15. The judge accepted that submission in part and held that the detention was unlawfully prolonged in respect of the period between about 20.15 and 21.21.[17]In the light of that decision the parties agreed the figure of £1,500 as damages, subject to the judge’s approval because the claimant was (and is) a minor. Curiously, it appears from the discussions between the judge and counsel, of which we have seen a transcript, that the judge approved the figure on the basis that it was to cover four hours of false imprisonment, together with a trespass to the person consisting of lifting the claimant’s shirt and an assault in the process of the arrest which were both at the lowest end of the spectrum. It is not absolutely clear but it appears that the four hours were arrived at by taking the three hours from the time of arrest at 16.10 to the time of arrival at the custody suite at 19.10 and adding the hour which the judge held to be excessive between about 20.15 and 21.21. The basis for excluding the period from 19.10 to 20.10 and 21.21 to 23.00 is not clear. The only basis that I can think of is that it was accepted in calculating the damages that the arrest was lawful during those periods because what was said in the custody suite (and alleged in paragraph 4(ii) of the particulars of claim) was sufficient to inform the claimant of the grounds of his arrest within section 23(3) of PACE.[18]However, that approach would be inconsistent with what by the end of the trial was the central argument on liability, namely whether the words which the jury held to have been spoken by PC McKenzie were sufficient. Since no-one seeks to reopen the damages and no-one suggests that the judge was not entitled to reach the conclusion that he did on the basis of an inconsistency in the approach to damages, I refer to it only to explain what would otherwise be a curiosity (to put it no higher) and to observe that it is common ground that if the appeal fails the result will be that the award of damages in the sum of £1,500 stands, that if the appeal succeeds on both points the appellant will not be liable at all so that the whole award of damages will be set aside and that if the appeal succeeds on the first point but fails on the second point the award of £1,500 will be set aside and replaced by an appropriate award of damages for excessive detention for the period of about an hour between 20.15 and 21.21. In that event the parties have not asked us to assess an appropriate figure but have said they that they hope to agree an appropriate figure.

Wrongful arrest?

[19]I turn to the first question, namely whether the respondent was sufficiently informed of the grounds of his arrest. Section 28 of PACE provides so far as relevant:
“(3) … no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as reasonably practicable after, the arrest. (4) Where a person is arrested by a constable, sub-section (3) applies regardless of whether the ground for the arrest is obvious.”
[20]Section 28 of PACE reflects the position at common law as stated in the leading case of Christie v Leachinsky [1947] AC 573. In a classic passage at page 587, after referring to a number of cases, Viscount Simon summarised the position in a series of propositions as follows:
“(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away. There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter.”
Those principles must now be read subject to section 28(4) of PACE but have been followed in a number of later cases.[21]The underlying rationale of that approach is that a person is entitled to know why he is being arrested. One of the reasons for that which is identified in the cases is that if he is told why he is being arrested he has the opportunity (for example) of giving an explanation of any misunderstanding or of calling attention to others for whom he might have been mistaken: see eg per Viscount Simons at page 588 and Lord Simonds at page 591 and 592. Lord Simonds emphasised at page 593 that, as he put it, “the arrested man is entitled to be told what is the act for which he is arrested”.[22]We were referred to a number of English cases in which those principles have been applied including (in chronological order) Murphy v Oxford, CA, unreported 15 February 1985, Abbassy v Commissioner of Police for the Metropolis [1990] 1 WLR 385, Mercer v Chief Constable of Lancashire [1991] 1 WLR 367, Wilson v Chief Constable of Lancashire Constabulary, (2000) 1 Po LR 367 and Clark v Chief Constable of North Wales Police, CA, unreported, 5 April 2000. It will be noted that many of those cases are unreported. That is no doubt because they do not add to the principles set out above but are simply applications of the principles to the facts of particular cases.[23]The same is in my opinion true of the reported cases. The relevant principles remain those set out in Christie v Leachinsky. It seems to me that the best statement of those principles as articulated in more recent times is not to be found in an English case at all but in paragraph 40 of the decision of the European Court of Human Rights in Fox, Campbell and Hartley v United Kingdom (1990) 13 EHRR 157. The court was there of course considering, not section 28(3) of PACE, but Article 5(2) of the European Convention on Human Rights, which provides as follows:
“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”
[24]In paragraph 40 the court said:
“Paragraph (2) of Article 5 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This protection is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph (2) any person arrested must be told in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph (4). Whilst this information must be conveyed ‘promptly’ (in French: ‘dans le plus court délai’), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features.”
[25]The wording of Article 5(2) and of section 28(3) of PACE are not of course the same. Nor are the words used by the European Court of Human Rights the same either as those of Viscount Simon quoted above or as those used in any of the other cases I have mentioned, but to my mind the principles expressed are essentially the same. It seems to me that this court was of the same view in Wilson v Chief Constable of the Lancashire Constabulary, in spite of the apparently stricter words of Article 5(2): see per Mance LJ at paragraph 27.[26]In the light of all the authorities I would hold that the modern approach to the application of section 28(3) is that set out in paragraph 40 of the judgment in Fox, Campbell and Hartley. The question is thus whether, having regard to all the circumstances of the particular case, the person arrested was told in simple, non-technical language that he could understand, the essential legal and factual grounds for his arrest. In the light of the case law as it has developed I doubt whether it will in the future be necessary or desirable to consider the cases in any detail, or perhaps at all. It seems to me that in the vast majority of cases it will be sufficient to ask the question posed by the European Court of Human Rights.[27]I turn therefore to consider the answer to that question on the facts of this case. It is important to note that the arrested person must be told both the essential legal and the essential factual grounds for the arrest. The words spoken must therefore include some statement of the factual as well as some statement of the legal basis of the arrest. In this case it is said that PC McKenzie did not sufficiently inform the respondent of the factual basis of the arrest. It is accepted that she included some facts because she told him that he was being arrested on suspicion of violent disorder at a particular place, namely Hillgrove Farm, on a particular date, namely 18 April. The question before the judge was whether those words went far enough.[28]The judge recorded the argument advanced on behalf of the respondent that something more was reasonable, such as “You were throwing stones with others, damaging property, or hitting persons at the farm on the date in question”. The judge in fact held that PC McKenzie should have gone further than she did by saying words such as “I am arresting you on suspicion of violent disorder by being involved with others in throwing stones towards the farmhouse at Hillgrove Farm on 18 April 1998”. He observed that the arrest occurred six to seven weeks after the event and took place at a time when the respondent was not engaged in any form of unlawful behaviour. He held that the words used did not convey the circumstances of the particular offence for which the respondent was being arrested, that is “what act the arrested person [was] being arrested for”, which he said was what was required by the authorities.[29]The process of reasoning which led the judge to that conclusion, which he expressed at the end of paragraph 8 of his judgment, involved a consideration of the question whether it was reasonable for PC McKenzie to have been given the information that the respondent had been throwing stones or to have found it out for herself. He said this:
“6. A question to be answered is whether the officer, as I understand it from the authorities, acted reasonably in her efforts to communicate adequate words. The officer herself was told that the reason for arrest was because of the violent disorder at Hillgrove Farm on 18th April 1998. She did not ask, nor was she told, of the nature of the claimant’s involvement. There is no evidence either way as to whether Sergeant Deacon, who was the sergeant instructing WPC McKenzie to effect the arrest, would have been able to tell WPC McKenzie of the nature of the violent disorder alleged against the claimant. It is not in dispute that he had a photograph of the claimant, selected from a video, but whether he recalled or had a note of the claimant’s involvement on 18th April is unknown. The jury would not have heard that evidence, and I have not heard that evidence either way. There is no doubt that he would have had a record somewhere of the video. Whether it was with him or not on the day of the arrest, 31st May, is unknown. But there is undoubtedly a video to which he had had access and still had access on 31st May, which would have shown the claimant’s stone throwing activities, if that is a proper way to describe them, involving also other acts of stone throwing, missile throwing of others, causing serious damage to property, including a house and cars and a serious degree of violence on 18th April. That information was all available to him, but whether he had it with him at the time or whether he had it in his head, which he probably would have done because he had been studying the videos, and whether he would have recalled what the claimant was alleged to have done, we do not know. 7. I have considered this matter very carefully, because of the nature of the claim, the nature of the difficulties which police officers have in dealing with these huge disturbances, of which this was one, and the need to look at the matter sensibly rather than be nit-picking about things. Having done so, in my judgment it would have been reasonable and not difficult, despite the scale of the operation, on the information I have, for the sergeant to have had a brief note – whether it be on the photograph of somewhere in his papers, or indeed in his mind – such as the note which appears at page 144 of the bundle. That is a note on a photograph, that as far as we are aware he did not have, but there seems to me no particular difficulty why some sort of brief note of that sort would, if necessary, have been of assistance to remind him of why this person needed to be arrested, not just because of general involvement in violent disorder, but because of the particular role that it is alleged that he played in it. That photograph bears the legend, “Throwing missiles towards farmhouse”, and it is something of that sort, it seems to me, which should have been easily available to the sergeant, and if available to him then available to the arresting officer. In my judgment, it would also have been reasonable for WPC McKenzie to have been told more than just violent disorder with the date and the place. In my judgment, it was unreasonable of her not to ask or probably not to be told of more detail, not vast amounts of detail, but a little detail so that she could tell the claimant – whether it is a claimant of this age or older – in simple terms why they had been arrested. My understanding of section 28 and the authorities before it and since is that that is what the law requires, for good reason. People need to know why they are being arrested – not in technical terms, but in simple terms that an ordinary person is likely to understand. In other words, what had he done? 8. So, in my judgment, it follows that she could have obtained that information, if she had asked for it, or she ought to have been able to obtain that information if she had asked for it, and if it was not available it was unreasonable for it not to be made available, and it was unreasonable for her not to ask for it. ”
[30]As can be seen from that quotation the judge asked himself whether the police, that is Sergeant Deacon and PC McKenzie, acted reasonably and held that they did not, in that Sergeant Deacon did not tell PC McKenzie that the respondent had been throwing stones and PC McKenzie did not ask him. However, for my part, I do not think that that was quite the right question. The question was simply whether the respondent was told the ground for his arrest, which required that he be told the essential legal and factual grounds for the arrest. As Woolf LJ put it in Abbassy at page 392B, the question whether or not the information given is adequate has to be assessed objectively having regard to the information which is reasonably available to the officer. The person arrested is either told enough or he is not.[31]Thus the question here was whether, viewed objectively, the respondent was told enough. As I see it, the answer to that question is the same whether PC McKenzie knew that the respondent was suspected of throwing stones or not. How reasonably the police acted in communicating with one another seems to me to be irrelevant to the answer to the question. It follows that, in my judgment the judge took account of an irrelevant consideration in reaching the conclusion which he did and thus erred in principle. In any event, as Sedley LJ put it in Clarke at paragraph 30, the question to be answered is a mixed question of law and fact and, moreover, is one in which, in the particular circumstances of this case, this court is in as good a position as the judge to decide.[32]In these circumstances, it seems to me that it is for this court to consider for itself whether the words used satisfied the test. Mr Langstaff submits that they did not. He points to these circumstances. The offence of violent disorder is not entirely straightforward. Merely to tell the respondent that he was being arrested on suspicion of violent disorder told him nothing about the wrongful acts which were alleged against him, especially since he was a small boy of only ten years of age, even though he was accompanied by his mother. It would not obviously involve throwing stones. The events complained of had taken place some weeks earlier. There was no criminality at the time of the arrest. The operation was pre-planned and the police were in possession of detailed information which could easily have been given to the respondent at the time of the arrest.[33]There is undoubtedly some force in those submissions. It is correct that the offence of violent disorder is not entirely straightforward. The Public Order Act 1986 provides, so far as relevant, as follows:
“2(1) Where three of more persons who are present together use or threaten unlawful violence and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, each of the persons threatening unlawful violence is guilty of unlawful disorder. 6(2) A person is guilty of violent disorder … if he intends to use or threaten violence or is aware that his conduct may be violent or threaten violence. 8 … ‘violence’ means any violent conduct so that – (a) except in the context of affray, it includes violent conduct towards property as well as towards persons, and it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short).”
Mr Langstaff submits that in these circumstances the respondent should have been told precisely what he was suspected of doing. (a) except in the context of affray, it includes violent conduct towards property as well as towards persons, and it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short).”[34]I see the force of that submission in a perfect world but this is not a perfect world. The offence of violent disorder is committed not just by one person but by at least three and in many cases, of which this was a prime example, by a large number of people together. As Mr Faulks submits, it is not practicable for the police to give each arrested person detailed particulars of the case against him. He submits that it was sufficient in this case, and will ordinarily be sufficient in cases of substantial disorder for the officer to tell the person being arrested that he is suspected of violent disorder at a particular demonstration at a particular time and place. In particular he submits here that there could have been no doubt in the respondent’s mind that he was being arrested for the part that he played in violent disorder at the same place as he was arrested, namely Hillgrove Farm, some weeks earlier.[35]Each case depends upon its own facts. It has never been the law that the arrested person must be given detailed particulars of the case against him. He must be told why he is being arrested. In some cases it will be necessary for the officer to give more facts than in others. So, for example, in Murphy, a person arrested for burglary was told that he was being arrested on suspicion of burglary in Newquay. As Sir John Donaldson MR put it, no mention was made either of the fact that the premises in Newquay were a hotel or of the date on which the offence was committed. The arrest was held to be unlawful.[36]By contrast, here the respondent was told that he was suspected of violent disorder at Hillgrove Farm on 18 April. To my mind the reference to Hillgrove Farm and to the date gave clear information to the respondent as to the event concerned. Hillgrove Farm was the place where the respondent and his mother were when he was arrested on 31 May. It was the same place as they had visited before on 18 April. It is true, as Mr Langstaff submits, that that was some six or seven weeks earlier, but the respondent had only been there once before when he had come with his mother on an anti-vivisection demonstration against the same person, namely the owner of the farm. There can have been no reasonable doubt in his mind as to when and where the events occurred which led to his arrest. Despite the interval of time, there can have been no scope for confusion as to the incident to which PC McKenzie was referring. In my opinion, that is true even though the respondent was only ten years of age. In this regard, it should be noted that the respondent’s mother was present throughout.[37]The question seems to me to boil down to whether it was sufficient to tell the respondent that he was being arrested for violent disorder on the previous occasion. The two other suggested formulations identified above, namely that suggested to the judge by counsel and that suggested by the judge, seem to me to demonstrate the difficulty of providing greater particulars because they show the difficulty of deciding how far to go. The essence of the crime of violent disorder is that the accused is alleged to have taken part in using or threatening unlawful violence or encouraging others to do so. It seems to me that, provided the time and place of the disorder is indicated to the person arrested it should ordinarily be sufficient for the police simply to say, as PC McKenzie did, that the person concerned is being arrested on suspicion of violent disorder at a particular time and place.[38]Such a person is to my mind being told why he is being arrested, namely for taking part in the violent disorder on a particular occasion. In this case that was in my opinion the situation. Neither the respondent nor his mother could be expected to be in any doubt why he was being arrested. It was for his part in the previous violent disorder. There was no need to specify the precise way in which he was said to be taking part. Whatever are the various ways in which violent disorder can be committed, ‘violent disorder’ was a good description of what had happened on the previous occasion without more. Associated with its time and place, it permitted the respondent and his mother to respond, if either had wished, that the respondent was not there or that he was doing nothing wrong. Equally it would have given enough information to take advice from a solicitor.[39]In these circumstances it does not seem to me to be surprising that the respondent’s case was originally pleaded in paragraph 4(ii) of the particulars of claim (quoted above) on the basis that he first understood the reason for his arrest at the police station when he was told he was suspected of violent disorder on 18 April. I express no view on what the state of mind of the respondent or his mother in fact was because it seems to me to be irrelevant but that is precisely what PC McKenzie would reasonably have expected him to understand when she told him that he was suspected of violent disorder at Hillgrove Farm on 18 April.[40]In all these circumstances I would hold that PC McKenzie informed the respondent of the ground for the arrest within section 28(3) of PACE and of the reasons for his arrest within Article 5(2) of the Convention. In the words of paragraph 40 of the judgment in Fox, Campbell and Hartley, he was told both the essential legal and factual grounds for his arrest, namely that he was suspected of taking part in violent disorder at the same place on the occasion of the previous demonstration, which was on 18 April. I have considered whether this conclusion is inconsistent with the approach in any of the decided cases to which we were referred and I do not think that it is. Each case depends on its own facts, so that there is little, if anything to be gained by this exercise: cf Abbassy and Clarke on the one hand and the decision of the majority of this court in Wilson on the other. I would hold that on the facts of this case the words used were sufficient and that the arrest was lawful.[41]It follows that the appellant was not liable for false imprisonment for the whole period and was not liable for trespass or assault. I would therefore allow the appeal on this point and set aside the award of damages of £1,500.

Excessive detention?

[42]As explained above, the judge held that the respondent was detained for an excessive period of about an hour between about 20.15 and 21.21. It was common ground that it was for the appellant to justify the whole period of detention. As Lord Donaldson MR colourfully put it in Mercer at page 367, the Chief Constable must prove that the detention was lawful minute by minute and hour by hour. Here the judge held that he had failed to do so in respect of that period. He held in short that the delay between those times was only to be explained by the absence of the interviewing officer and that the appellant failed to explain why no interviewing officer was available by 20.15. He held that it was, as he put it in paragraph 5 of his second judgment, unexplained in any terms as to reasonableness.[43]Mr Faulks submits that that conclusion is unjustified and that it is a reasonable inference that no time was wasted and that any delay is to be explained by the exigencies of policing on that afternoon and evening, given the large number of suspects who had to be processed. He submits first that the respondent’s case should be put in context and in particular that account should be taken of the difficulties faced by the appellant given that no application was made to amend the claim to allege excessive detention until the first day of the trial. It is certainly true that the appellant was likely to have been put in difficulties by the late amendment because, through no fault of his own, Inspector Lynch’s notebook was no longer available and he was the key witness in this part of the case. However, the application for permission to amend was not opposed on behalf of the appellant on the ground that it could no longer be fairly tried and/or that he would be irremediably prejudiced if it were granted. In these circumstances the judge was bound to consider the issue and, having regard to the fact that the burden of proof was on the appellant, was bound to ask himself whether he had discharged it.[44]The relevant principles are set out in paragraphs 1.1 and 1.1A of Code C issued under PACE as follows:
“1.1 All persons in custody must be dealt with expeditiously, and released as soon as the need for detention has ceased to apply. 1.1A A custody officer is required to perform the functions specified in this code as soon as is practicable. A custody officer shall not be in breach of this code in the event of delay provided that the delay is justifiable and that every reasonable step is taken to prevent unnecessary delay. The custody record shall indicate where a delay has occurred and the reason why. [See Note 1H].”
Note 1H is in these terms:
“Paragraph 1.1A is intended to cover the kinds of delays which may occur in the processing of detained persons because, for example, a large number of suspects are brought into the police station simultaneously to be placed in custody, or interview rooms are all being used, or where there are difficulties in contacting an appropriate adult or interpreter.”
[45]The principles were considered in two unreported cases decided in this court by Nourse, Beldam and Kennedy LJJ on 22 and 26 May 1995. They were Wilding v Chief Constable of Lancashire and Woods v Commissioner of Police for the Metropolis respectively. In both cases the court asked itself whether the circumstances were such that the decision of the custody sergeant was unreasonable in the sense that no custody sergeant, applying common sense to the competing considerations before him, could have continued to detain the suspect.[46]In many cases that is likely to be the sole question, although in the present case the position is slightly more complicated. The custody sergeant, Sergeant Davey, explained that he was faced with a number of considerations, which included his entirely proper doubts as to whether Mrs Taylor should be allowed to act as an appropriate adult. Paragraph 1C of Code C provides:
“1C A person, including a parent or guardian, should not be an appropriate adult if he is suspected of involvement in the offence in question, is the victim, is a witness, is involved in the investigation or has received admissions prior to attending to act as the appropriate adult. If the parent of a juvenile is estranged from the juvenile, he should not be asked to act as the appropriate adult if the juvenile expressly and specifically objects to his presence.”
[47]Mrs Taylor had been present at the demonstration on 18 April and was at the very least likely to have been a witness to what occurred. So Sergeant Davey’s concern was whether Mrs Taylor should be treated as an appropriate adult was justified and he spent some time trying to find someone else to act in that capacity. Sergeant Davey was also concerned about the respondent having legal advice and it appears that at one stage Mrs Taylor said that her son would like the assistance of a solicitor[48]However, Mr Langstaff submits that neither of those concerns was the cause of the delay which the judge held to have been unjustifiable. He relies upon the evidence of Sergeant Davey both in his statement and orally at the trial. Thus in paragraph 47 of his statement he said:
“My intention was to ensure that I complied with PACE and to expedite Daniel’s release from custody as soon as possible, but I first had to wait for an interview team to interview Daniel.”
Mr Langstaff submits that in these circumstances it is clear that on Sergeant Davey’s evidence the delay was caused, not by concern about whether the respondent’ mother should be treated as an appropriate adult or by the need to wait for a solicitor, but by having to wait for an interview team to be assembled. Mr Langstaff correctly observes that, when the interview team had been assembled and was ready to start the interview, no delay was caused for want of an appropriate adult or for want of a solicitor. The note in the custody record for 21.10 records that the interview team was now in a position to interview the respondent, that they were all happy to have Mrs Taylor as an appropriate adult and that, no doubt as a result of his mother’s advice, the respondent was happy to be interviewed without the presence of a solicitor.[49]Sergeant Davey’s evidence is summarised in paragraph 50 of his statement as follows:
“Any delay in processing Daniel was subject to the investigating/interviewing team attending for the purpose of the interview. My understanding was that they were currently busy processing/interviewing other detainees but they were aware that Daniel was their next priority.”
Thus, on a fair view of Sergeant Davey’s evidence as a whole, although he had been concerned in the two respects to which I have referred, he put any delay down to having to wait for an interview team. His evidence is to be contrasted with that of Inspector Lynch.[50]Unlike Sergeant Davey, who had the benefit of the custody record, Inspector Lynch had no contemporary document of his own from which to refresh his memory. However, he said in evidence that once the demonstration had finished and everyone had left he had to try and find where the various people who had been arrested had been taken. He went back to Newbury Police Station where the respondent had been taken. He said that since he was only ten he was a priority. He spoke to DC Hunter and briefed him so that he would be ready to conduct the interview, since it was DC Hunter and not DC Lynch who was to interview (and in fact interviewed) the respondent, albeit with DC Lynch present. He said that, once the respondent had been booked into custody and dealt with by the custody suite and was ready for interview, then they went down and interviewed him.[51]In cross-examination he said in effect that the interviewing team were not responsible for any delay and in answer to a question from

the judge as to when he reached Newbury he said this:

“I don’t have that in my statement. I think I’ve the time in my statement that we started the interview, but effectively from the time I got there we were waiting for him to be interviewed. That is my recollection of it, not that he was waiting for us.”
When he was pressed on the cause of the delay, especially in the light of the evidence of the custody sergeant and the contents of the custody record, he said that he did not recollect being the cause of any delay but that it was five years ago.[52]In the light of that evidence the judge was in my opinion entitled to hold that the delay between about 20.15 and 21.21, when the interview began, “is only explained by the absence of the interviewing officer”. That conclusion is justified by the custody record and the evidence of Sergeant Davey. The judge was I think somewhat critical of Sergeant Davey for not pressing the interviewing officers harder but, for my part, I do not think that it would be fair to Sergeant Davey to criticize him on the evidence available.[53]As I read the judge’s judgment, the reason why he held that the respondent was detained for an excessive period between about 20.15 and 21.21 (and thus that the appellant was liable for false imprisonment in respect of that period) was that the police were unable to explain the reason for the delay in having an interview team ready to interview the respondent until then. Given the fact that Inspector Lynch was unable to account for the delay, I have reached the conclusion that there is no proper basis upon which this court could hold that the judge was not entitled to reach the conclusion which he did. I recognise that the reason why Inspector Lynch was not able to explain the delay (which he could not in any event recall) may well have been the absence of his notebook and the passage of time since 1998 but the fact remains that the burden of proof was on the appellant and the judge was entitled to hold that he had failed to discharge it.[54]It follows that I would hold that the judge was entitled to hold that the respondent was entitled to damages for wrongful detention and thus false imprisonment for about an hour.

CONCLUSIONS

[55]For the reasons set out above, I would hold that the judge was wrong to hold that the initial arrest was not lawful and that it is the duty of this court to allow the appeal on the first question. By contrast, I would hold that the judge was entitled to hold that the appellant was liable for damages for false imprisonment in respect of the period of about an hour. It follows that I would set aside the award of damages of £1,500, which it was agreed covered false imprisonment for some four hours and both trespass to the person and assault, both of which depended upon the lawfulness of the arrest. I would substitute an appropriate award of damages in respect of one hour’s wrongful detention. The parties have said that they will try to agree the quantum of such damages, although the final figure will have to be approved by the court because the respondent is still a minor.[56]I agree.[57]For the future, as Clarke LJ indicates, it should not be necessary in wrongful arrest cases to refer to more law than is contained in s.28(3) and (4) of PACE, article 5(2) of the Convention and paragraph 40 of the decision in Fox, Campbell and Hartley v United Kingdom (1990) EHRR 157.[58]The practical reasons historically given by our courts for the requirement which is reflected in article 5(2) have a good deal to do with giving the suspect an immediate opportunity of explanation or self-exculpation. With PACE procedures which for good reason discourage dialogue before interview, this is less important than perhaps it once was. The real underpinning of the Convention right is the simple one of respect for the dignity of the individual: if the state is taking away your liberty, you are entitled to know why.[59]In this light, what matters is whether the legal test was met by telling this 10-year-old boy that he was being arrested "on suspicion of violent disorder" at a named time and place. While the sufficiency of the words in no way depends on what is known to the arresting officer, it must in some measure depend on who is being arrested; so that, at least in a country which treats ten-year-olds as criminally responsible, attention needs to be given to whether words of arrest which would be adequate for an adult are sufficient when arresting a child.[60]Approaching the first question in this light, I agree with Clarke LJ that the words "violent disorder" are both legally and factually an adequate description of the material offence. This will not always be so: the legal names of some crimes are not self-explanatory. And, though not without some hesitation, I agree that they are words which would convey to a ten-year-old enough of what the offence involved to meet the purpose of PACE and the Convention. The respondent's evidence that he did not in fact grasp what he was alleged to have done cannot be influential here. The question of sufficiency has to be answered objectively; but one aspect of objectivity is the circumstances of the arrest, and these have to include who it is that is being arrested.

The Vice-Chancellor

[61]I also agree that the appeal should be disposed of on the basis set out in paragraph 55 of the judgment of Clarke LJ for the reasons given by him.

Order

permission granted to first defendant to appeal from order refusing permission to amend defence; appeal dismissed; claimants' costs to be paid by first defendant, to be assessed if not agreed, and set off against costs to be paid by the claimants to the first defendant in respect of appeal heard on 11.11.02. (Order does not form part of the approved judgment)

Cited in 10 later judgments

and 1 more case