Khadine v Commissioner of Police for the Metropolis [2005] EWCA Civ 196

[2005] EWCA Civ 196Case No A2/2004/2338 PTA
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE (QUEEN’S BENCH DIVISION) GRIGSON J
Lower Court Ref No: HQ 03 X02357
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 4 March 2005
Before
LORD JUSTICE POTTER
Between
OMAR STEPHAN KHADINEAppellantTHE COMMISSIONER OF POLICE OF THE METROPOLISRespondent
The Appellant acted in person. for in personHearing Hearing date : 27 January 2005
JudgmentLord Justice Potter :Introduction
[1]This is an application by Mr Khadine, formerly a mini-cab driver, for permission to appeal the order of Grigson J dated 22 October 2004 by which, having discharged the jury on the grounds that the claim raised no question fit for their consideration, he ordered that judgment be entered for the respondent, the Metropolitan Commissioner of Police. Permission to appeal was refused. The applicant’s claim was for damages for unlawful arrest, malicious prosecution, misfeasance in public office, negligence and racial discrimination.[2]In the early hours of 10 June 2000, the appellant, who worked as a mini-cab driver for Kendall Cars of Croydon, accepted a fare from two women, Ms Lisa Parker and Ms Nicole Morrison.[3]During the journey a disagreement arose. The women had take-away kebabs with them when they got into the cab, and had been asked by the applicant not to eat in the back of the cab. However, one of them did so. When the applicant saw this he asked them not to do so. As he was driving along a road called Poplar Walk towards the junction with Wellesley Road, he says that he was insulted and abused and one of the women told him that her husband was a police officer and made racist remarks at his expense. The applicant turned his car into Wellesley Road and stopped, getting out of the vehicle and asking the women to leave. As she got out, one of them flung the contents of her food packet over the applicant and then struck him with her fist in his mouth causing a split lip. She threw punches at him and verbally abused him, he being forced to push her away and retire backwards. At this point two black cabs arrived and the drivers got out and came to his assistance, one of them pulling the more aggressive woman away. The other went over and smashed the wing mirror and damaged the aerial on his car. The applicant drove back to the cab office and then onto Croydon Police Station to report the matter and make a complaint of assault. He arrived there at 2.38 am where the incident was recorded.[4]The applicant spoke to PC Hayward, who entered the complaint on the CRIS system and flagged it as a racial incident. In the CRIS records produced at trial the venue of the incident has been recorded by her as ‘Poplar Walk, Croydon’. However in the ‘Details of Investigation’ section recording the short details of the incident and entered in the CRIS record by WPC Bacon who took the details of the applicant’s complaint, no reference appeared to Poplar Walk, the relevant passage reading:
“The victim asked the suspect to stop which she replied with by saying ‘You fucking black, you shouldn’t be in our country.’ The victim pulled up his cab by which time had just turned into Wellesley Road and got out.”
[5]The investigation was assigned to PC McKelvie of the Community Safety Unit.[6]At about 5.10pm the same day (when different officers were on duty), the two women attended the police station to report the incident, their complaint also being entered on the CRIS system, the venue recorded being ‘Wellesley Road’. The details of investigation were consistent with the circumstances spoken to by the applicant up to the point when he stopped the car and asked the women to get out. However, their allegation was that, on being asked to take them back to the cab office he refused and then became very angry and pulled one of the women out of the car. When she resisted, he punched her in the ribs. The second woman got out of the car and tried to assist the first and the applicant then turned on her and swung her round by her hair, yanking it hard twice. In the struggle he turned back to the first woman and attacked her, punching her in the back. Two black cab drivers arrived and told the applicant to get back into his car. A third drove the women home. The investigation of that incident was assigned after some delay to DC Aspinall of Croydon CID.[7]According to the police evidence, no link was made at that stage between the two incident reports because of the different venues recorded in the CRIS records. Later, and still before any link had been made, because the applicant was unable to identify the women, PC McKelvie spoke to him on the telephone and the appellant indicated that he did not wish to proceed with the complaint. His reason for expressing that view was because it appeared that there was no realistic prospect of the two women being identified.[8]In his investigation, DC Aspinall was able to visit the mini-cab office and identified the appellant as the driver. On 28 June he telephoned the applicant asking for him to attend at the police station for interview in relation to the complaint of the two women. The applicant said he had been the victim of the assault and that the women were the assailants. He asked if it was because one of the women was married to a police officer. DC Aspinall said he had just been given the papers and knew nothing of that. At the applicant’s request, it was arranged that he would attend the police station with his solicitor.[9]On 6 July DC Aspinall found the cross-complaint from the appellant in the CRIS record and, linking the two incidents, he made a cross-reference to that effect in the two records. PC McKelvie thus had the entry brought to her attention. However, at that stage, she did not inform the appellant that the identity of the women had been discovered because, as she said, she understood that he did not wish to proceed and, in any event thought he would learn their identity during the course of Mr Aspinall’s investigation when he saw the applicant.[10]On 17 July 2000 DC Aspinall took statements from the two women and himself saw bruising and marks upon one of them said to have been sustained in the incident. He was told that the woman had visited the hospital on Sunday 11 June in relation to her injuries.[11]On 28 July 2000 the applicant attended the police station for interview with his solicitor. He arrived at 11am, and was interviewed by DC Aspinall for 35 minutes and charged 45 minutes later. He was fingerprinted and then released on bail to attend the Magistrates’ Court on 4 August 2000. The whole process took some two hours, 10 minutes of which was spent in a cell.[12]On 1 August 2000, aware now of the identity of the two women, the applicant contacted PC McKelvie and indicated that he wished to pursue the allegation. PC McKelvie discussed this with DI Bryan who informed the appellant that he would discuss the matter with the Criminal Prosecution Service.[13]By 4 August 2000, the CPS had been told that there were cross-allegations and the Magistrates’ Court proceedings were adjourned. Further inquiries were made, witness statements taken and efforts vainly made to trace the drivers of the black cabs and any other independent witnesses. The relevant materials were put before the Senior Crown Prosecutor who decided that no further action should be taken. A letter of discontinuance was sent to the applicant on 12 September 2000.[14]Subsequently, following formal complaint by the applicant to the Commissioner, there was an internal investigation of the matter. The complaint of the applicant was, as it continued to be in these proceedings, that there had been a deliberate conspiracy (as opposed to a failure of co-ordination) between the various police officers involved not to pursue the complaint of the applicant but rather to prosecute him on the complaint of the two women, having learnt that one of them was the wife of a police officer, and/or upon racial grounds. In his complaint the applicant stated that he wanted the women prosecuted for assault and the individual police officers involved charged.[15]The lengthy interviews conducted with all the various officers concerned in the course of the internal investigation were all before the court at trial and, assisted by Mr Khadine at the oral application before me, I have carefully looked at them and the passages upon which he relies and relied below. It appears that, the evidence below was consistent with those statements save for certain inconsistencies, in the oral evidence of PC McKelvie and, to a lesser extent DC Aspinall. The applicant also relies upon the opinion expressed in the course of the investigation and in the witness box by DI Heckells, a senior officer concerned not with the immediate events but with the applicant’s subsequent complaints to the effect that, in the light of the cross-allegations it would have been appropriate to have released the applicant initially on bail in order to review his evidence in relation to the allegation of assault rather than immediately charging him.[16]Having failed to obtain satisfaction from the internal inquiry, the applicant made application for permission for judicial review against the Crown Prosecution Service for an order that they should pursue the prosecution of the two women for assault and the police officers for conspiracy to pervert the course of justice.[17]He was unsuccessful in that regard. However, in the course of the proceedings Mr Justice Collins made observations to the effect that “On the face of things, the police it is who really have behaved badly and have not investigated the matter as they should have done.” and referred in oral exchanges to “A very nasty smell arising from the way the police dealt with this.”. Finally, he observed, “I think that on the face of it you do have something which ought to be investigated, and it may be that, even if, as I believe, there is no reasonable chance of establishing before a criminal court that the officers have been guilty of conspiracy, it may be that they have been guilty of a disciplinary offence – that is an offence against the Police Regulations. I do not know whether they have or they have not. But the story and the whole history of this leads me to believe that they may have been. It seems to me that there is something that ought to be investigated. I am saying this so that you can have, if you wish, a transcript of what I am saying, that you can tell the Police Complaints Authority, that I am concerned at what I have read and I think that the matter ought to be investigated.”[18]It is perhaps pertinent to add that, when Collins J indicated that he considered the only redress open to the applicant would be through the Police Complaints Authority and the claimant asked him whether that precluded him from the civil action which he was taking, the judge observed that he would certainly not advise him to do any such thing without taking legal advice.[19]On 25 July 2003 the appellant issued these proceedings and the case was tried before Mr Justice Grigson and a jury in October 2004.[20]The judge dismissed the claim by order dated 22 October 2004, giving a fully reasoned judgment. He did so without requiring the jury to make any findings of fact on the basis that there were no material disputes as to the facts for the jury to determine in the sense that, in so far as there was dispute as to the details of conversations which occurred in the course of the police investigations, their resolution in favour of the applicant would not amount to the establishing of a prima facie case of unlawful conduct by the police. The principal question raised by the application is whether the judge was right to do so: see grounds 1 to 3 of the Grounds of Appeal which read: “(1) Mr Justice Grigson erred in law when he usurped the functions of the jury. (2) Mr Justice Grigson erred in law when His Lordship misdirected himself reasoning and ruling that the claim raises no question fit for consideration of the jury when in fact the evidence before the court and evidence adduced showed that there is overwhelming evidence, controversial and contradictory, whose veracity one way or the other must first be determined by the jury. (3) The questions of honest belief and malice in the defendant’s mind operating at the times in question as to(a) unlawful arrest(b) malicious prosecution are properly left for the jury. (4) Overwhelming procedural inappropriateness and heavy selective bias towards the police defendants.” (a) unlawful arrest (b) malicious prosecution are properly left for the jury.[21]Before turning to the detail of the judgment it is necessary, in relation to grounds 1-3, briefly to refer to the relevant law. In doing so, I concentrate upon the law in relation to unlawful arrest, because it is clear to me that, upon the facts and realities of this case, bearing in mind the individuals involved at different times in the course of events, if the arrest by PC McKelvie was lawful, in the sense that he had genuine and reasonable grounds for belief that the applicant had assaulted the women, the charge which followed and marked the commencement of the process of prosecution could not be faulted because Mr Khadine did not suggest that the custody sergeant who accepted the charge from DC Aspinall and processed the matter was party to any conspiracy or acted on any information other than that supplied to him by DC Aspinall. Further, it is plain that the applicant was dealt with thereafter expeditiously and, as soon as known, his protests and complaints properly investigated, the time spent in doing so being reasonable before the decision of the CPS to withdraw the prosecution.[22]As stated by Woolf LJ in Castorina v The Chief Constable of Surrey (C.A.), The Times 15 June 1988, in a case where it is alleged there has been an unlawful arrest, there are three questions to be answered:
“1. Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officer’s state of mind. 2. Assuming the officer had the necessary suspicion, was there reasonable cause for that suspicion? This is a purely objective requirement to be determined by the judge if necessary on facts found by a jury. 3. If the answer to the two previous questions is in the affirmative, then the officer has a discretion which entitles him to make an arrest provided that discretion has been exercised in accordance with the principles laid down by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.”
[23]As made clear in Perks: The Police and the Civil Courts at 9.17, it is the role of the jury to assist the judge in matters of fact upon which he requires their assistance. Thus, in most wrongful arrest cases the question whether an officer or officers acted with honest belief in the action they took at the time of arrest or in instituting a prosecution, will be left to the jury in the form of questions agreed between counsel and the judge as appropriate for the jury. However, the judge is not obliged to take that course if he is satisfied that, in relation to undisputed facts and events there was reasonable and probable cause for the arrest or prosecution. As stated at paragraph 9.26 of Perks:
“It must seem only sensible to a claimant, incensed at the account advanced in evidence by officers which he believes to be dishonest, that he should be entitled to take the jury’s views upon the issue whether the officers actually believed he might be guilty of an offence when they arrested and charged him, or whether they so acted in a dishonest attempt to conceal their misdemeanours. The claimant may also expect to discover whether the custody officer who detained him did so from a genuine belief in the need so to act, or from some ulterior motive. In fact and in practice, this course should rarely be permitted.”
[24]Then having quoted a passage from Dallison v Caffery [1965] 1 QB 348, the author accurately summarises the position in this way:
“If the judge is of the view, taken objectively, that there was some good cause to arrest, or prosecute, or detain the accused, he should not allow any question concerning the actual belief of the police officers to go to the jury, and should then rule on that issue, save if there is cogent evidence that the officers may not actually have believed what, objectively, they were entitled to believe. Such evidence will very rarely be available: it is not supplied by mere challenge in the course of cross-examination.”
[25]As elsewhere observed by Perks and made clear by

the judge in his judgment:

“Mere challenge does not raise a conflict of evidence.”
[26]Applying those principles, the judge gave clear and cogent reasons for taking the decision which he did, addressing those factual matters and events which were established on the evidence and making clear why certain facts as to which there was dispute, or on which there had been a lack of consistency in the police evidence, did not disturb the clear evidence as to the circumstances in which DC Aspinall made his arrest. As the judge stated at paragraph 29:
“Mr Khadine was arrested on suspicion of assaulting the two women. Mr Aspinall had ample material to form that suspicion: he had the witness statements of the two women and he had photographs taken on the 10th of the injury and his own observation of some injury.”
[27]As the judge pointed out there was simply no evidence that, at the time of arrest or at the police station, DC Aspinall was acting from racist motives or to protect the wife of a fellow police officer, albeit that was the suspicion and asserted to be the case on the part of the applicant.[28]The judge also found that PC McKelvie did not pursue the case against the two women because she believed on reasonable grounds that Mr Khadine did not want to proceed against them. However, even if he was wrong, (as the applicant has vigorously asserted before me) that did and does nothing to demonstrate that DC Aspinall, in arresting the applicant, for an assault which appeared to have caused injury to the women whom he saw, was not genuine in his belief that such injuries were caused by an assault by the applicant, thus justifying the arrest and the charging of the applicant by a station officer against whom there was no suggestion that he had malice or other improper motive in dealing with the applicant.[29]In form, the judgment of Mr Justice Grigson is careful, thorough and well-reasoned. As he pointed out, much of the submissions were simply challenges which did not in themselves raise a conflict of evidence. The assertion of the applicant’s suspicions was not in itself a ground which required the judge to leave the question of honesty to the jury if the judge was satisfied that there was simply no evidence on which a reasonable jury could reach that conclusion.[30]It is clear that the police did not treat the investigation of the applicant’s claim in an efficient and competent manner, in particular in relation to PC McKelvie’s failure to link the cases in the early stages and to re-contact the appellant once the identity of the women became known. However, those failings did not establish dishonesty, improper motive or collusion on the part of the arresting or charging officers and it is apparent that, as soon as the appellant’s complaint of bias and/or malice was known, it was investigated and, within a reasonable time, the prosecution against the appellant was dropped.[31]In relation to ground 4 of the Grounds of Appeal, as set out in paragraph 1 of the skeleton argument of 94 paragraphs dated (at its head) 15.12.2004, the procedural matters of which complaint is made are set out as grounds of complaint in themselves, as well as evidence of bias on the part of the judge in favour of the police. I shall deal with them briefly in turn.a. A. I have already set out the broad reasons why I do not consider Mr Justice Grigson was, on the face of his judgment, wrong to make the rulings which he did, essentially for the reasons which he himself articulated and I do not propose to repeat in this judgment.b. B. The judge was not wrong in law to prevent the claimant from referring to the judicial review matters. They were separate proceedings brought against the Crown Prosecution Service in which the judge was only considering the facts of the case indirectly and in that context. No doubt the applicant wished to refer to the opinion of Collins J that on the face of things the police had behaved badly and a ‘nasty smell’ arose. However, the opinion of a judge stated in another case, in which he was not directly concerned to investigate the issues and allegations arising in this case as a matter of law between the parties concerned, was not probative and was rightly excluded.c. C. If, as I assume, the applicant protested that ruling and appeared to persist in his desire to refer to those proceedings, then the judge was right to inform him that, if he did so, the jury would require to be discharged.d. D. On the basis (as appears to be the case) that this ground is based on the matters set out at paragraph 88(a)-(d), no irregularity is apparent. E–G. The Rehabilitation of Offenders Act 1974 forbids the questioning of a rehabilitated person about spent convictions, unless the court is satisfied that ‘justice cannot be done in the case’ except by reference to the convictions: see s.7(3). Bearing in mind the age and nature of the spent conviction of the applicant in this case, it is well arguable that the judge unreasonably exercised his discretion if (as is to be assumed) he considered that justice could not be done in the case without reference to that conviction. However, even if error could be demonstrated in that respect, this ground could not avail the applicant, given that the judge never left the matter to the jury and the question at issue in this appeal is whether the judge can be shown to have been wrong in that respect. H, J, L, M. These grounds generally allege bias against the claimant and in favour of the police officers giving rise to breach of the obligation under Article 6(1) ECHR to afford a fair hearing before an impartial tribunal. The specific point relied on as demonstrating bias is the judge’s intervention into the evidence of DI Heckles when the claimant was seeking to elicit from him condemnation of the manner in which DC Aspinall had failed to carry out additional checks before deciding to arrest the applicant. It is apparent that the judge was concerned at the line of questioning on the basis that the applicant was seeking to ask questions of DI Heckles which did not merely go to facts and whether or not police procedures had been complied with (DI Heckles had not been involved in the case at the time) but additional ‘opinion evidence’ on the propriety of what DC Aspinall had done, which evidence is not strictly admissible. It is not possible for me to say, simply on the assertion of the applicant, that the judge was in error, or that such intervention raises a case of bias on his part.[32]There are two further specific matters upon which the applicant placed considerable emphasis before me. The first was that a witness statement from an employee of the Mayday Hospital which summarised the injuries noted to Nicole Morrison on her attendance on dates stated to be 11/06/2000 and 17/06/2000 appears to have been altered. The two dates stated appear in handwriting over a deleted handwritten date “5/6/67”. The applicant suggests that this is highly suspicious and that if, as appears, the deleted date showed a visit on 5 June, it would not tally with the date of the incident. As I explained to the applicant, this appears to me a point devoid of any substance. Apart from the fact that the deleted date refers to a year ‘67’, which plainly must have been an error, the alteration appears to be in the hand of the author of the statement, Russell Lennard, and initialled by him. Furthermore, it does not appear that the applicant has himself made any effort to check with the hospital what the true position was. Plainly this is a matter which cannot assist the applicant on this application, although the point made is indicative of the high state of suspicion in which he now finds himself.[33]I well understand that state and, at the same time, I must pay tribute to the diligence and persuasive moderation with which the application has argued his case before me. He has raised points of detail over many pages of written argument which I have studied at length. However, in the light of the careful findings of the judge, and his careful consideration of the facts in the light of the relevant law, I do not consider that the applicant has any realistic chance of persuading this court to overturn his decision on appeal.[34]Finally, the second point which the applicant has emphasised is that it appears (and I do not doubt) that the jury displayed considerable impatience and irritation at the rulings of the judge. Plainly, they were suspicious of the matter, as indeed, without detailed consideration of the issues of the kind which the judge was obliged to bring to the proceedings, was Collins J. However, bearing in mind that cases of this kind are tried on evidence and not suspicion, the principles of law stated at paragraphs 23-25 are salutary and well established.[35]After long and careful consideration of the submissions of the applicant, I am satisfied that he would have no reasonable prospect of reversing the judge’s decision on appeal, so far as unlawful arrest and malicious prosecution are concerned.[36]While I have dealt in detail only with those matters for the reasons stated in paragraph 21 above, I also see no prospect of success in relation to the causes of action in negligence and misfeasance in public office. So far as racial discrimination is concerned, the applicant himself acknowledged the weakness of his case in that respect, the malicious motive principally alleged being the motive to protect a police officer’s wife.[37]The application is therefore dismissed.

Cited in 1 later judgment