Buike v Chief Constable of West Yorkshire [2009] EWCA Civ 971

[2009] EWCA Civ 971Case No B2/2009/0456
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
(HHJ GRENFELL)
Venue Royal Courts of Justice, Sitting at LeedsDate Wednesday, 15th July 2009
B E F O R E:
LORD JUSTICE LONGMORE
LORD JUSTICE TOULSON
LORD JUSTICE PATTEN
Between
BUIKEApplicant-v-
Between
CHIEF CONSTABLE OF WEST YORKSHIRERespondent
(Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR L THOMAS & MS E FAVATA appeared for ApplicantMR T WYNN appeared for Respondent
J U D G M E N T

LORD JUSTICE TOULSON:

Dwain

[1]Buike appeals against the refusal of permission to sue the Chief Constable of West Yorkshire Police for assault. He needed permission under section 329 of the Criminal Justice Act 2003 because the alleged assault occurred in the course of him being detained by police officers who had caught him in the act of attempting to carry out a ram raid burglary of a shop, for which he received a sentence of imprisonment.[2]Section 329 provides as follows:
"(1) This section applies where— (a) a person ('the claimant') claims that another person ('the defendant') did an act amounting to trespass to the claimant's person, and. (b) the claimant has been convicted in the United Kingdom of an imprisonable offence committed on the same occasion as that on which the act is alleged to have been done. (2) Civil proceedings relating to the claim may be brought only with the permission of the court. (3) The court may give permission for the proceedings to be brought only if there is evidence that either— (a) the condition in subsection (5) is not met, or. (b) in all the circumstances, the defendant’s act was grossly disproportionate. (4) If the court gives permission and the proceedings are brought, it is a defence for the defendant to prove both— (a) that the condition in subsection (5) is met, and. (b) that, in all the circumstances, his act was not grossly disproportionate. (5) The condition referred to in subsection (3)(a) and (4)(a) is that the defendant did the act only because— (a) he believed that the claimant— (i) was about to commit an offence. (ii) was in the course of committing an offence, or (iii) had committed an offence immediately beforehand; and (b) he believed that the act was necessary to— (i) defend himself or another person. (ii) protect or recover property. (iii) prevent the commission or continuation of an offence, or. (iv) apprehend, or secure the conviction, of the claimant after he had committed an offence; or was necessary to assist in achieving any of those things."
[3]Section 329(8) provides that reference to trespass to a person includes assault and the references to a defendant's belief are to his honest belief whether or not that belief was also reasonable.[4]It is agreed by both parties, and I agree too, that the proper approach of the court on such an application is similar to the approach on a defendant's application for reverse summary judgment under CPR 24.2. In other words the claimant has to show that the claim has a real prospect of success and in particular that there is a real prospect of the court concluding that the condition specified in section 329(5) is not met or, in the alternative, that the defendant's conduct was grossly disproportionate.[5]It is important to stress that such applications should not turn into mini trials. Although the section uses qualified permissive language, "the court may give permission for the proceedings to be brought only if there is evidence that ...", it is rightly not suggested by the respondent that this language is intended to give the court a residual discretion to refuse permission, even where the claim does have a real prospect of success. If Parliament had intended the section to provide a means of preventing a claimant from pursuing a claim which has a real prospect of success, it would have needed to say so in plain terms, because it would be an inroad into a person's basic constitutional entitlement to enforce his or her legal rights in a court of law. In this case the appellant's application was issued on 7th November 2008, which was 2 years and 10 months after the incident.[6]The application stated as follows:
"1. On 13th December 2005 the claimant was one of three men who carried out a ram raid burglary on an electrical goods store on Bicker Lane, Leeds. The claimant pleaded guilty to that offence at Crown Court and following an Attorney-General's Reference was sentenced to a term of imprisonment. 2. During the commission of the offence the claimant was discovered by an officer of the West Yorkshire police, namely Police Constable 2364 Lilington, a police dog handler and his PD Stan. The claimant attempted to make good his escape by running to a waiting car and attempting to drive away. He was prevented from doing so by the police dog which followed him into the car and detained him by biting him on his left arm. Police Constable Lilington then arrived at the car, removed the keys from the ignition and pulled the claimant from the vehicle and onto the ground with the dog attached. The claimant makes no complaint about any aspect of his treatment to this point. Once the claimant was out of the car and on the ground, however, Police Constable Lilington made no attempt to stop the dog from continuing to bite the claimant notwithstanding the presence by then of a number of other police officers. The event was under control but despite repeated attempts by a female officer to handcuff the claimant she was unable to do so by reason of Police Constable Lilington encouraging or allowing the dog to continue to bite the claimant and to drag him through a substantial distance along the road. 5. Further, when the claimant was pulled from the vehicle onto the ground and whilst being bitten by the dog Police Constable Lilington proceeded to assault the claimant by stamping on him and kicking him repeatedly to his upper body. 6. Despite the nature of the assault that is referred to, the claimant's injuries were fortunately limited to relatively minor dog bite wounds to both arms and both legs. 7. The claimant wishes to bring a claim for damages for deliberate assault, including aggravated and exemplary damages and for damages in negligence as a result of the actions of Police Constable Lilington acting in the performance or purported performance of his police functions for which the defendant is liable by virtue of section 88 of the Police Act 1996."
The application then addressed the requirements of section 329 and set out the appellant's case as follows:
"(a) In the course of the investigation of the complaint made by the claimant concerning the matters referred to above PC Lilington repeatedly denied that he deliberately stamped on the claimant or that he kicked him at all. In those circumstances the defendant cannot claim that the officer had the belief set out in section 329(5)(b) and that condition is therefore not met. (b) Further and/or alternatively on any account the officers's actions shown clearly on CCTV footage in stamping on and kicking a defenceless suspect whilst he was on the floor, being bitten repeatedly by a police dog may well be considered by a court to be grossly disproportionate."
[7]The application came before District Judge Lentworth on 13th November 2008. It was sensibly made on notice to the respondent. But the respondent did not seek to put in evidence. That too was sensible given the nature of the court's task. Evidence from a respondent which merely goes to show that there are triable issues would serve no useful purpose.[8]In support of his application the appellant relied on three sources of evidence. One, his written application, which was supported by a statement of truth. Two, CCTV footage of the incident. Three, an extract from the interview of Police Constable Lilington by DI Latham which took place as a result of a complaint made by the appellant to the Independent Police Complaints Commission.[9]In interview, DI Latham showed Police Constable Lilington the CCTV footage and took him through it. DI Latham suggested that the footage showed Police Constable Lilington stamping on the appellant twice and kicking him in the region of his back four times. Police Constable Lilington agreed that the camera made it look as if he had kicked the appellant but he denied doing so. He said that he believed that the appellant had a weapon in his hand. He did not kick or certainly mean to kick the appellant. What he was trying to do was to place his foot on the appellant's arm in order to restrain him.[10]The application was refused by the district judge. She observed that she had no written statement from the appellant. She viewed the CCTV evidence and commented as follows:
"Certainly having viewed the video the officer appears to be using a kicking motion whilst the claimant is on the ground and in the investigation conducted by his employers he was found to have kicked and to have stamped."
She concluded in paragraph 22:
"In order to allow the claim to proceed, I have to consider that the force used was grossably disproportionate. Having viewed the video, having considered what is said on behalf of the claimant and what is said on behalf to the defendant in relation to the events of that evening, particularly those immediately preceding the arrest as outlined above, I am not satisfied that the force used was grossly disproportionate and on that basis I will dismiss the application."
[11]The appellant appealed and his appeal was heard and dismissed by His Honour Judge Grenfell on 10th February 2009. In addition to the material before the district judge, he had also a statement made by the appellant on 3rd July 2007 as part of the IPCC investigation. He also viewed the video. He said at paragraph 35 of his judgment that it was plain that Police Constable Lilington appeared to be kicking the claimant in the course of trying to restrain him. He went on to say at paragraph 39 that:
"It is clear from the incident as it is seen unfolding that the officer was doing what he honestly believed to be necessary to apprehend the claimant."
So he concluded that the appellant had failed to provide evidence which showed that section 329(5) was not met. There remained the question whether Police Constable Lilington's conduct was grossly disproportionate. At paragraph 41 he said that for this purpose he was going to assume that there were kicks and the question on that assumption was whether they were grossly disproportionate in the circumstances. As to that he concluded in paragraph 42 that the whole matter needed to be looked at in context. He could not ignore the fact there were no apparent injuries and no complaint of kicking at all until very much later. Those factors indicated to him that there was "simply insufficient evidence that the act was grossly disproportionate in the circumstances that actually can be seen unfolding at the incident itself."[12]Mr Thomas, on behalf of the appellant, submitted that in paragraph 39 of the judgment the judge took on the role of fact finder when holding that the film showed that Police Constable Lilington was doing what he honestly believed was necessary, and whether this was or was not a correct factual finding could only properly be established after oral evidence and gross examination. The video evidence, he submitted, gave rise to issues which needed to be explored along with the explanations given and not given by Police Constable Lilington for his conduct. Similarly, he submitted that the judge took on a role of fact finder when he decided that there was insufficient evidence to show that the degree of force used by Police Constable Lilington was grossly disproportionate, whereas there was, in his submission, ground for arguing that it was grossly disproportionate for a police officer to use his boots to kick and stamp upon a man who was being held on the ground by a police dog. He also submitted that the judge attached undue significance to the absence of evidence of any significant injury because whilst that might be a material factor, it was in no sense conclusive. It is quite possible to have an act which is clearly uncalled but does not cause significant injury.[13]Mr Wynn, on behalf of the Chief Constable, submitted that the judge's findings contained no error of law. In paragraph 39 the judge had in effect held that there was no real prospect of the appellant showing that section 329(5) was not met. Similarly the judge had in effect found that there was no real prospect of showing that Police Constable Lilington's acts were grossly disproportionate in the circumstances. These findings were properly open to him. The decision of the two lower judges on those issues of fact should be respected.[14]We have also seen the video which was looked at by the district judge and the circuit judge. It does appear to show several kicks to the appellant when he was on the ground and some stamping movements. Whether there were three kicks or four kicks is immaterial for the purposes of determining this appeal. The interpretation put on the film in the questioning by DI Latham is therefore certainly a possible interpretation of the film and may well be right. So, to the question whether there is evidence of kicking, the answer must be "yes".[15]The next question is whether, on the evidence, there is a real prospect of the court concluding that Police Constable Lilington cannot have believed, and did not believe, that it was really necessary to kick him in the way that the film appears to show, in order to apprehend him or to protect Police Constable Lilington or any of his colleagues.[16]Here, I consider that the judge went too far and did in truth take on the role of fact finder. The appellant's case that on the video evidence the officer was kicking him and cannot have believed that it was necessary, because it was not necessary and it is difficult to see why he should have believed it to be necessary, is at least arguable.[17]The task set by section 329(3) and (5) at the permission stage is a somewhat unusual one because it places an onus on the prospective claimant to adduce evidence of the defendant's absence of belief of the matter specified, when the only person who will ordinarily be able to give primary evidence of his state of mind will be the defendant himself. To make the section workable it must, I think, be that the claimant will ordinarily seek to establish the necessary evidence by being able to point to what the defendant did and to invite an inference that the defendant cannot, in the circumstances, have believed such acts to be necessary for any of the relevant purposes (in this case, apprehension of the appellant or protection of Police Constable Lilington or his fellow officers).[18]There is also arguable force in a point which Mr Thomas advances about Police Constable Lilington's interview. His submission is that the denial by Police Constable Lilington of kicking the claimant itself supports the view that Police Constable Lilington did not believe that it was necessary to kick him and, for that reason, advanced an alternative explanation of what the camera appeared to show him doing, that alternative explanation being he was not in truth attempting to kick the appellant at all. But, submits Mr Thomas, that plainly raises arguable questions about what he was in reality trying to do, which could only be resolved by oral evidence and cross-examination.[19]So I am persuaded that on the evidence before the court, the appellant does cross the threshold of showing that it might properly be concluded that section 329(5) does not apply. That is all that the section requires of him and on that basis, I would allow this appeal. It follows that, in my judgment, we do not reach the stage of considering the proportionality issue and I propose to say no more about that for the following reason. The issue would fall to be addressed on the hypothetical basis that there was no real prospect of the court concluding that Police Constable Lilington acted otherwise than in the belief that what he did was necessary to apprehend the appellant or to protect himself or other officers. Since that whole question is one which will now have to be explored at trial, I do not think it would assist to express hypothetical views about what conclusion might be reached on section 329(4) depending on the facts found.[20]In conclusion, I should simply indicate that nothing that I have said in this judgment is intended to indicate even a provisional view about the ultimate merits of the claim, let alone the prospect of the appellant recovering any substantial damages. We are concerned only with the question as to whether this claim is barred by section 329, and I have reached the conclusion, for the reasons given, that on the evidence and on the proper application of that section, the claim passes the threshold test.

LORD JUSTICE LONGMORE: I agree.

LORD JUSTICE PATTEN: I also agree.

Cited in 2 later judgments