Roche v Chief Constable of Greater Manchester Police [2005] EWCA Civ 1454

B2/2004/0858 (A)Case No B2/2004/0858[2005] EWCA Civ 1454
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
Venue MANCHESTER COUNTY COURT
(HIS HONOUR JUDGE TETLOW)
Venue Royal Courts of JusticeDate Tuesday, 25 October 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE BUXTON
LORD JUSTICE SEDLEY
LORD JUSTICE JONATHAN PARKER
Between
IAN ROCHERespondent-v-
Between
CHIEF CONSTABLE OF GREATER MANCHESTER POLICEAppellant
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR ERIC SHANNON (instructed by Halliwells of Manchester) appeared for AppellantMR ROGER FARLEY QC and MR ALASTAIR WRIGHT (instructed by Stephensons of Leigh) appeared for Respondent
J U D G M E N T

LORD JUSTICE BUXTON:

This

[1]appeal is brought from the decision of His Honour Judge Tetlow in Manchester County Court as long ago as April 2004.[2]The case sprang from a confrontation on the streets of Manchester between the claimant and various police officers. The claimant, it appears, has purported to be known by a number of names but, for the purpose of these proceedings at least, he is Mr Roche. Mr Roche has a history of differences of opinion with the police force and a history of not only breaches of the law, but also complaints on his part about the treatment of him by the police. As the judge felicitously put it at one stage in his judgment, the claimant and the authority are not happy bedfellows. There was a certain amount of material before the judge to show that Mr Roche's impatience with the police force was, to some extent at least, reciprocated.[3]The claims in the action were for damages for false imprisonment and malicious prosecution together with damages in relation to personal injury and damage to his motor vehicle. We are not concerned with the damage to the motor vehicle. I will look in more detail at a later stage at the fact that the personal injury takes the form of psychiatric illness caused by the incidents of which Mr Roche complains.[4]The outcome of the proceedings was that Mr Roche was successful in all his complaints. He recovered £7,500 for the personal injury. He recovered actual and aggravated damages for false imprisonment in a modest sum. He recovered both actual and aggravated damages for malicious prosecution in the sum of £15,000. The judge made a further award for exemplary damages in the sum of £10,000.[5]The history of the events is set out in detail in the judgment of His Honour Judge Tetlow. I shall simply refer to such aspects of the case as are germane to this appeal. Anyone who wants to find out more about this matter can safely refer to Judge Tetlow's judgment. The incidents of which complaint was made date back to as long ago as 5 January 1999 when there was a confrontation originally in Campbell Street, Manchester between Mr Roche then driving a Range Rover and a group of officers from the Manchester Police Tactical Support Group. They were some five officers in all. The officer in charge was Sergeant McDermott. The other officers were Police Constables Collins, Codling, Walker and Booth. Without going into detail, the officers, who were apparently parked up in a cul-de-sac in some sort of support for an on-going operation, complained that Mr Roche was blocking the road with his vehicle and had done so deliberately. Mr Roche clearly indulged in, at the very lowest, some truculent language and an impertinent or obscene gesture was apparently made by him towards one of the officers. After these exchanges he drove off. The police constables in their vehicle or vehicles came after him.[6]There was at the trial and in the written submissions in this appeal a great deal of dispute about what exactly occurred at Campbell Street. That is only relevant, if at all, as a matter of background. The judge's finding was that Mr Roche did no more than behave rudely and possibly aggressively towards the officers, without making any actual threatening gesture. The judge also found that when the officers drove off after Mr Roche they were not doing so intending to arrest him, but to upbraid him, if that is the right expression, in respect of his behaviour. There was some uncertainty as to which of the officers at that stage knew that Mr Roche was a person known to the police who was suspected of having aggressive postures towards them, but that again, in the event, does not seem to have been relevant to the matters of which complaint was made.[7]This cortège of Mr Roche in front followed by the police car or cars arrived at a place called Sunnyside Road, where Mr Roche stopped. The police came out of their vehicle and surrounded or, on another view, approached Mr Roche's car. He drove off and was eventually arrested at another site, clearly on the instructions of, or on the basis of information given to other officers by, Sergeant McDermott. The arrest was for assault under Section 47 of the Offences Against the Person Act, in the shape of assault occasioning actual bodily harm to three officers, that is Sergeant McDermott himself, Constable Collins and Constable Booth, and also for dangerous driving. He was prosecuted for the Section 47 assaults in front of the Manchester Crown Court and was acquitted on all charges. He was prosecuted before the magistrates on a separate charge of threatening behaviour and was also acquitted. As I understand it, he was also acquitted by the Crown Court of the dangerous driving charge.[8]Mr Roche alleged in this action that he had been falsely imprisoned at the time of the arrest because the arrest was wrongful. That complaint turned on whether or not he should have been arrested. He also complained that the prosecution was malicious. The interaction between those two complaints is a matter of some confusion in these proceedings, and I shall have to return to it.[9]Dealing with the matter of wrongful arrest, the defence was that Mr Roche had committed arrestable offences and that therefore the police were entitled to arrest him. The defence was put thus in paragraph 20:
"The claimant then, by use of his car, deliberately and/or recklessly assaulted PC Booth, PC Collins and Sergeant McDermott in the following manner."
There then followed an extremely detailed series of allegations as to what had happened in Sunnyside Road. That the allegation was, in substance, one of deliberate use of the car is demonstrated by the witness statement in these proceedings of Sergeant McDermott, the officer who took the decision to arrest Mr Roche, when he said this:
"There was clearly reasonable suspicion that he deliberately assaulted three police officers. The arrest was perfectly justified."
[10]The judge made the following findings about the incident at Sunnyside Road. In respect of the alleged assault on Sergeant McDermott and Police Constable Collins, he said at paragraph 98 of his judgment:
"I am afraid I cannot accept the vehicle knocked either of them over."
He then gave a series of circumstantial reasons based on his analysis of the evidence why he did not accept the evidence of those two officers that they had been knocked over. As regards Constable Booth, he accepted in paragraph 97 of his judgment that the car collided with him, but, the judge said, not in the dramatic fashion portrayed by some of the witnesses. The judge accepted that Constable Booth had been injured to the top of his foot by the impact. We were told that the constable was unfortunately invalided off work for some time because of that injury. The judge said this at paragraph 99 of his judgment:
"Was the claimant aware of colliding with Police Constable Booth? On balance, I do not think he was, for two reasons: (1) The tenor of what he was saying in interview was that he wanted to escape before anyone got to the front of his vehicle. Further, his denial he had collided with anyone. Perhaps one should approach such piece of evidence with caution. (2) The claimant was clearly terrified of being attacked by the police. An instant before he drove off, he had been speaking agitatedly on his mobile, not looking ahead or, indeed, to the right. That is confirmed by the switchboard comments, particularly in the earlier first part of the conversation transcribed, of a hysterical gentleman. That is how he was behaving then and that fits with what the police saw."
The judge asked himself what the position would be if he was wrong in that finding and the claimant was aware that he had collided with Police Constable Booth. On that hypothesis - which I would emphasise is not the judge's finding - he said this (paragraph 103):
" ..... did the claimant do it deliberately in the sense of intending to hit him [Constable Booth] or was he, as he maintained in interview, trying to escape from what he thought would be a likely thrashing? In my judgment the overwhelming probability is the latter."
The judge then mentioned the confrontation in Campbell Street and accepted that Mr Roche had made a rude gesture towards one of the officers (Constable Collins) as he left that site. He went on and said this (paragraphs 104 and 105):
"104 To find himself pursued by the police vehicle must have caused apprehension but not sufficient to make him feel there was a need to escape; he stops. He is quickly met with three and then another two officers. He has four officers on the driver's side and one on the nearside. Two at least are shouting at him to get out of the car ..... 105 ..... He drove off fast to escape from a situation created by those police officers. It was suggested to the police they had gone in mob handed. That is probably a fair description. The situation got out of control and the police should be proof against the kind of provocation provided by the claimant."
Those were effectively findings that there had been no assault.[11]Did the police nonetheless have reasonable grounds for suspecting that an arrestable offence had been committed, as is the requirement of Section 24 (6) of the Police and Criminal Evidence Act? That issue is taken up, in terms of complaint, in paragraph 9 of the appellant's skeleton argument before us. In that skeleton argument counsel says this:
"If the learned judge had turned his mind to the question of whether officers could have suspected upon reasonable grounds that the claimant had assaulted person or persons by driving at them reckless, as to whether they were put in fear of harm or as to whether they were harmed, then the following matters would have been relevant."
The pleader then sets out seven items which are alleged to be relevant to that issue had the judge turned his mind to it.[12]But, as we have seen, the case of recklessness was only pleaded in a very formal way and was not the case that was put by the police at the trial. The case throughout was that the officers had been actually assaulted, and the responsible senior officer had pursued the matter because he claimed to have seen them actually assaulted and not because he suspected that they had been assaulted. In his witness statement, and presumably in the evidence he gave in the witness box, Sergeant McDermott gave a detailed account of an actual and deliberate assault on himself, Police Constable Collins and Police Constable Booth: an account which, as we have seen, the judge rejected. So it is hardly open to the appellants to complain that the judge did not turn his mind to the "suspicion" case. The judge did address that issue in his judgment and rejected the police case on it. He said:
"106 Were the police at the scene entitled to have reasonable grounds to suspect the claimant was guilty of assault and hence cause his subsequent arrest and prosecution? The answer is not if the police at the scene were or should have been aware that the claimant was driving away to escape from the policemen's actions, which had terrified him ..... 107 I reject Sergeant McDermott's unawareness of what the claimant's state of mind was and Police Constable Booth's contention that the claimant was acting normally. All the other evidence and objective evidence, too, from the transcripts, points the other way. Sergeant McDermott who, as I understand it, caused a radio message to go out for the claimant's arrest, should, in my judgment, have realised, if not immediately, then pretty quickly that their conduct had driven the claimant to act as he did, to escape for his own safety and that he had not deliberately driven at Police Constable Booth or others. He should have called off the hunt."
[13]On those findings the judge rejected the claim for wrongful assault. He rejected it, first, because he held that there had not been the assault on which the police relied; and, secondly, he rejected the suggestion that they had reasonable grounds to suspect that such an assault had occurred even if it had not done so.[14]The judge then went on to say this at paragraph 108, a paragraph which has been a matter of controversy in this appeal:
"I understand it is accepted that in those circumstances that the arrest was wrongful and the subsequent prosecution malicious. If it was not accepted, as I thought it was, then I will have to hear further argument on the basis of the findings I have made as to whether a different conclusion should be reached but it seems to me that given the circumstances, as I have found them to be, the arrest was unlawful and so was the following prosecution malicious."
[15]That formulation, on its face, causes some difficulty. For a claim of malicious prosecution the claimant has to establish not only the absence of a reasonable and probable cause for the prosecution, which the judge had found in the case of Sergeant McDermott in passages that I have just read; but also malice. In the pleadings extensive particulars were given of malice in terms of the hostility of the police generally to Mr Roche and of harassment of him outside the confines of this incident. Those matters were not passed on by the judge because of his understanding of the nature of the case. The appellant says that the judge misunderstood what had been conceded on that point, that it was not the case that it had been accepted that once it was decided by the judge, as it was, that there were no grounds for arrest and no reasonable suspicion of such grounds then the claimant necessarily succeeded, not only on the issue of wrongful imprisonment, which was directly linked to the arrest, but also on the malicious prosecution as well.[16]After some discussion with Mr Shannon however, we are satisfied that it is not alleged in this appeal - and even if it were to be alleged no permission to appeal was given on this point - that the judge was required to try the issue of malice, and erred in law in not doing so. That view is supported by the fact that, acting under the possibility of further hearings that the judge set out in paragraph 108, when the parties re-appeared before him on 10 June he was not invited to consider separately the issue of malice. Mr Shannon concentrated his complaint then on the fact that the judge had not addressed the possibility of assaults having been committed by Mr Roche on grounds of recklessness rather than on grounds of deliberation. In the circumstances, although it is not satisfactory that the issue of malice was not tried out, that was because of the way in which the case was presented to the judge. There would be no basis for sending the case back to him now for that to be done.[17]That is not the end of the matter because a single Lord Justice of this court gave permission to appeal on 16 June against the judgment that the judge had delivered on 2 April. The single Lord Justice does not appear to have been aware at that stage, or if he was aware did not appreciate the force of it, that the judge had delivered a second judgment in the light of his invitation at paragraph 108 on 10 June. The single Lord Justice granted permission on the first ground set out in the notice of appeal. He said:
"It is clearly arguable that the judge failed to deal adequately with the critical questions as to whether or not there were reasonable grounds for arrest and whether the prosecution was malicious, particularly bearing in mind the issue of recklessness raised in the skeleton argument."
He pointed out that the grounds did not adequately reflect that difficulty which was, allegedly, that the judge had not considered the possibility of reckless assault.[18]Mr Shannon says that he was careful, when he appeared before the judge on 10 June to address the judge on the matter of reckless assault, to make it clear to him that he was appealing the first judgment on that basis also.[19]However the judge did address the question of recklessness in a judgment on 10 June. He recorded that Mr Shannon had argued that an assault could be committed deliberately or recklessly. He accepted that the grounds of complaint in paragraph 9 of the skeleton argument could have justified an arrest had there been grounds present in the sergeant's mind, but pointed out that the case before him had been on the basis solely of deliberate assault. He then went on to address the question of recklessness and said in paragraph 9:
"For what it is worth, in the circumstances I have found I would acquit the claimant of assault whether deliberate or reckless."
He continued in paragraph 11:
"That leaves the question of whether Sergeant McDermott could have had reasonable grounds to suspect the claimant of behaving recklessly. I have already concluded he did not in fact have such a suspicion. I conclude basically for the reasons given in my original judgment that Sergeant McDermott, if he suspected the claimant was guilty of a reckless assault, did not have reasonable grounds to do so. He should have realised that the conduct of the police had put the claimant into an hysterical state and caused him to drive off to escape for his own safety and before he was surrounded. It was Sergeant McDermott who had ordered Police Constable Booth to go to the front of the car. He should have realised that a man in that state as the claimant was would hardly have known what he was doing. In the circumstances there were no reasonable grounds to suspect the claimant was guilty of a reckless assault; I say that whether it is considered as a jury point or as a matter of law. Therefore I stand by my original decision."
[20]That judgment was eventually put before the single Lord Justice who had considered the grounds of appeal. He refused permission to challenge any of the findings within that judgment, but he did give permission to appeal on the basis that the judge should not have given that judgment at all, granted that he had already effectively decided the case in his judgment of 2 April.[21]The appellant says that we should completely ignore the judgment of 10 June. We must address the appeal solely on the basis of the first judgment. We need to consider therefore whether we can take account of what the judge said in his second judgment. No authority was placed before us as to how we should deal with that situation. The appellant indicated to us that he was content for that matter to be determined by the wisdom of this court.[22]Mr Shannon advanced a number of arguments as to the potential unreliability or undesirability of a judge who had already - as paragraph 108, it is said, seemed to indicate - reached a provisional conclusion on the matter hearing a further argument upon it. He did however, very properly, say that he in no way suggested that the actual consideration of Judge Tetlow on 10 June had been anything other than proper and careful, and certainly not a sham. It is also clear from his judgment, and Mr Shannon did not suggest otherwise, that the judge heard submissions in some detail on the point that Mr Shannon had chosen to put before him, that is to say the question of whether Mr Roche was, or was arguably, guilty of reckless assault.[23]In those circumstances the inquiry becomes somewhat technical as to whether it is open to this court to look at the second judgment. We remind ourselves of Section 70 of the County Courts Act 1984:
"Every judgment and order of the County Court shall, except as provided by this or any other Act or as may be prescribed, be final and conclusive between the parties."
The order in this case was perfected at the same time as the first judgment and well before the judge embarked on the hearing of 10 June. That order read:
"(1) There be judgment for the claimant on the issue of liability. (2) The matter be listed before His Honour Judge Tetlow for assessment of damages on 14 May 2004."
That is to say, the order provided with finality that there should be judgment for the claimant.[24]If the order had not been perfected there would have been jurisdiction on the part of the court, only to be exercised very sparingly, to recall it. That jurisdiction is described in the notes to the White Book to Section 70. We do not need to set it out because it does not apply to this case, the order having been perfected.[25]Does that mean therefore that not only the order but also the reasoning of Judge Tetlow can only be corrected by a decision of this court and not by the judge himself? For my part, I do not think, in the circumstances of this case, that Section 70 or the general provisions about finality of judgment precludes our considering the second judgment in the course of this appeal. My reasons are as follows. The second judgment of 10 June does not in any way alter the judge's order. It simply gives further reasons why that order is valid in the sense that it simply rejects the relevance of contentions that were not before the judge before he made that order.[26]Secondly, if we were to allow the appeal on the basis of the omissions in the first judgment, we could not of course decide the case ourselves. The matter would have to be remitted either for reconsideration or for retrial. That would be a wholly artificial exercise, granted that Judge Tetlow has already performed that task in the sense of dealing with the alleged lacuna in his judgment of 10 June.[27]Thirdly, if the case had come before us without the benefit of Judge Tetlow's second judgment, this court would have had jurisdiction under English v Emery Reimbold to send the matter back to the judge for him to make findings upon matters on which it was alleged he had not made findings. That would, prima facie, be a sensible step as against the cost of the potential unfairness to one side or another of starting the whole matter over again. If it was the case that the court considering the original grounds of appeal might have so ordered, why should the court not take advantage of already having the fruits of that inquiry without having to order it? We have heard no detailed argument on this point. But in my view it would be wholly artificial and wrong if the court did not take account of what Judge Tetlow found on 10 June. If we do that, paragraph 9 of the judgment already cited is conclusive that Mr Roche did not commit a reckless assault, and paragraph 12 is conclusive that Sergeant McDermott had no reasonable grounds for suspecting him of that assault. That is effectively the end of this appeal, because the matters allegedly not considered by the judge were considered by him on 10 June and were determined against the appellants in the way that I have described.[28]As I have said, there was, on one view, unfinished business with regard to the issue of malice in the claim of malicious prosecution, but that was not further pursued in front of the judge because of the way in which the case was put to him. He was justified in not pursuing it further, and this court would not order him now so to do.[29]For those reasons therefore I would dismiss this appeal.[30]The claimant brings a cross-appeal in respect of one aspect of the finding of the quantum of damages, that is to say the award of £7,500 in respect of psychiatric injury. The basis of this is that the claimant had been examined by Dr Johnson, a consultant psychiatrist, whose opinion was preferred by the judge to that of the appellant's expert. He held that the claimant was suffering from a recognised psychiatric disorder of adjustment reaction maintained both by his perception of harassment by the police and by the currency of the litigation. Dr Johnson said in his report:
"I doubt whether his emotional state will cease to cross the threshold for psychiatric illness until some months after the litigation."
[31]The figure of £7,500 in respect of that illness was, we were told, agreed on the assumption that a further six or nine months, at most, after the date of judgment would be required for the condition to settle. Counsel for the claimant tells us that he made it clear, and we accept, that the award was contingent on that fact. Because the appeal has dragged on for a longer period it seems logically to be the case that the period of the distress and therefore the expense or cost of that illness has extended beyond that which was envisaged at the time of the trial. The judge made it clear in paragraph 13 of his judgment that a prolongation of the claimant's psychiatric condition would call for a higher award if, on appeal, his judgment was upheld. He said:
"That, it seems, is a matter for the Court of Appeal."
[32]We have well in mind that there has been no further medical examination. We also have well in mind that it cannot be in strict terms suggested that the judge was wrong in anything he decided.[33]The situation is an unusual one, and we would not wish any order we make upon it to be regarded as any sort of general precedent. However it is certainly inherent in the case that the award was too low, granted the facts that are known now, that is to say that the litigation has continued for a further 14 months and therefore the period of settlement Dr Johnson indicated will date from now rather than from the date of the hearings in June 2004.[34]A possible course would be to send this matter back to the judge for further consideration. We have been persuaded however that that would be a wholly disproportionate and expensive course to take, granted there is no significant difference between the parties as to the factual implications of the continued appeal or as to the sum that should be awarded additionally in respect of it. In those circumstances we think the sensible course is for the court not to remit the matter to the judge but to make the order that we are satisfied the judge would make if the matter were remitted to him, that is to say to increase the award of £7,500 in respect of psychiatric injury to a sum of £10,000. We emphasise that we are not there allowing any appeal against the judge's judgment, but we are simply, we hope sensibly, saving further expense in a case where there is no significant dispute as to what ought to happen.[35]Therefore we allow the cross-appeal, if it is correctly so described, by increasing the judge's award for psychiatric injury to the sum of £10,000. We make no further order.

LORD JUSTICE SEDLEY: I agree.

LORD JUSTICE JONATHAN PARKER: I also agree.

Order

Appeal dismissed, the cross-appeal allowed.

Cited in 2 later judgments