Shields v Merseyside Police [2010] EWCA Civ 1281

Case No B2/2010/0132

[2010] EWCA Civ 1281

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM LIVERPOOL COUNTY COURT

Mr Recorder Hinchliffe QC

8LV19293

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 17/11/2010

Before

LORD JUSTICE THOMAS

LORD JUSTICE MOSES

LORD JUSTICE TOULSON

Between

JOSHUA SHIELDS (BY HIS LITIGATION FRIEND REBECCA SHIELDS)Appellant

CHIEF CONSTABLE OF MERSEYSIDE POLICERespondent

Mr Stephen Simblet (instructed by Jackson and Canter LLP) for Appellant

Mr Graham Wells (instructed by Berrymans Lace Mawer) for Respondent

Hearing Hearing date: 4 November 2010

Judgment

Lord Justice Toulson :

Introduction

[1]Joshua Shields appeals against the dismissal of claims brought by him against the Chief Constable of Merseyside Police for damages for assault and false imprisonment. The trial judge, Mr Recorder Hinchliffe QC, gave him permission to appeal for the following reason:

“The issue for appeal is whether or not this claimant was the subject of a lawful arrest, the suggestion being that the officer who took hold of the claimant believed that the claimant was already under arrest and could not go through the necessary thought process required under s24 of PACE [the Police and Criminal Evidence Act 1984, as amended]. I preferred the defendant’s submissions but am genuinely concerned as to the correctness of the position. I think that there is a good argument to be advanced on behalf of the claimant. If right, then the claimant will establish trespass and false imprisonment.”

[2]The case was tried by the recorder and a jury. There were two claimants, the appellant and his father Richard Shields. The trial lasted 8 days between 16 and 25 November 2009. At the end of it the recorder put 13 questions to the jury, covering issues where there was a material conflict about what happened between the evidence of the claimants’ witnesses and the evidence of the defendant’s witnesses. In every instance the jury rejected the claimants’ evidence and accepted the defendant’s evidence. In the light of those findings, the recorder dismissed both claimants’ claims. The appellant does not challenge the findings themselves, but he argues that the recorder erred in law in holding that the appellant’s arrest was lawful. There is no appeal by the appellant’s father.

The facts

[3]Shortly before midnight on Saturday 13 May 2006 a mother made a telephone call to Merseyside Police. She said that she had gone to collect her 16 year old daughter, Lindsey, from an address where Lindsey’s boyfriend lived with his parents. This was the claimants’ address. The mother reported that there had been a disturbance. She believed that Lindsey had banged her head in a fall and that an ambulance had been called, but she had not been allowed into the house, and abuse was being shouted from the window. She wanted the police to attend.

[4]PC Holland was dispatched to attend and investigate what was going on. He arrived at the property and spoke to the mother. He also saw an ambulance there. He was concerned to find out what was going on and how Lindsey was. He was told by a young man at the door that he was not needed, but he was allowed inside. PC Holland went up the stairs and found Lindsey in the kitchen. The appellant’s father then appeared and told him in strong language to leave. The appellant’s father’s behaviour made PC Holland more concerned about Lindsey and about what had occurred prior to his arrival. He said that he would not be leaving until he had spoken to the paramedics and checked that everything was all right. He tried to calm down the appellant’s father but without success. Anticipating further trouble, he used his radio to call for other police to come and help him. The appellant joined in shouting at PC Holland and then, as the jury found, the appellant’s father attacked him. Whilst struggling with the appellant’s father, PC Holland pressed the emergency button on his radio, activating what was referred to as a “con requires” call.

[5]A paramedic at the scene went to assist PC Holland, as he struggled with the appellant’s father. At that point the appellant attacked PC Holland and punched him to the side of the head.

[6]Other police officers then arrived. They included PC Maxwell. At this stage PC Holland was struggling with the appellant’s father and the appellant was screaming abuse and obscenities at PC Holland. PC Maxwell and another officer put themselves between the appellant and PC Holland. The appellant tried to get at PC Holland, but PC Maxwell and his colleague formed a protective barrier. The police told the appellant to calm down but he continued to shout obscenities at them. PC Holland said to PC Maxwell “He’s under arrest for assault police”, referring to the appellant. PC Maxwell then seized the appellant by his wrists. A struggle followed. The officers handcuffed the appellant and PC Maxwell told him that he was under arrest for assaulting the police. The appellant was then taken out of the house and put in a police vehicle, where he was reminded that he was under arrest for assaulting the police.

[7]PC Maxwell’s evidence was that he suspected that the appellant had assaulted PC Holland from what that officer had said in the appellant’s presence, and that he considered it necessary to arrest the appellant to prevent any further physical harm to police officers and to ensure prompt and effective investigation into the suspected offence. Because of the volatile atmosphere, he decided to remove the appellant from the house as quickly as possible.

[8]The appellant and his father were subsequently charged with offences of assaulting a police officer in the execution of his duty but were acquitted after trial at the Liverpool City Magistrates’ Court.

[9]The recorder found that at the time when PC Maxwell arrested the appellant there was sufficient information available to him to form a reasonable suspicion that the appellant had committed an offence affording lawful grounds for his arrest.

Grounds of appeal

[10]The grounds of appeal are that the recorder failed properly to apply the provisions of s24 of PACE because PC Maxwell neither had sufficient information available to him, at the time when he detained the appellant, to form a reasonable suspicion that the appellant had committed the offence for which the appellant was detained, nor went through the mental process necessary for carrying out a lawful arrest.

Section 24 of the Police and Criminal Evidence Act 1984, as amended

[11]The statutory powers of summary arrest previously contained in PACE were radically altered by s110 of the Serious Organised Crime and Police Act 2005, which introduced what is now s24 of the 1984 Act. This provides under the heading “Arrest without warrant: constables”: “(1) A constable may arrest without a warrant—(a) anyone who is about to commit an offence;

(b) anyone who is in the act of committing an offence;

(d) anyone whom he has reasonable grounds for suspecting to be committing an offence. (2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it. (3) If an offence has been committed, a constable may arrest without a warrant— (a) anyone who is guilty of the offence; (b) anyone whom he has reasonable grounds for suspecting to be guilty of it. (4) But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question. (5) The reasons are— (a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name); (b) correspondingly as regards the person's address; (c) to prevent the person in question— (i) causing physical injury to himself or any other person; (ii) suffering physical injury; (iii) causing loss of or damage to property; (iv) committing an offence against public decency (subject to subsection (6)); or (v) causing an unlawful obstruction of the highway; (d) to protect a child or other vulnerable person from the person in question;

(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;

(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question. (6) Subsection (5)(c)(iv) applies only where members of the public going about their normal business cannot reasonably be expected to avoid the person in question.” (d) anyone whom he has reasonable grounds for suspecting to be committing an offence. (b) anyone whom he has reasonable grounds for suspecting to be guilty of it. (a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name); (i) causing physical injury to himself or any other person; (ii) suffering physical injury; (iii) causing loss of or damage to property; (iv) committing an offence against public decency (subject to subsection (6)); or (v) causing an unlawful obstruction of the highway; (iv) committing an offence against public decency (subject to subsection (6)); or (d) to protect a child or other vulnerable person from the person in question; (e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question; (f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.

[12]The previous law was much criticised for being complex (with the result that a police officer placed in an unexpected situation might not know whether he could lawfully arrest a person) and for being simultaneously over-inclusive and under-inclusive. There was a general statutory power of summary arrest for an “arrestable offence”. This included any offence which carried a maximum penalty of 5 years’ imprisonment and certain other specified statutory offences. However, an offence which carried a theoretical maximum penalty of 5 years imprisonment or more might in fact be relatively trivial, and the only limits on this broad power of arrest were those which could be deduced from Wednesbury principles or

article 5 of the European Convention on Human Rights

. The case law regarding the impact of those principles on the statutory power of arrest did not provide the officer on the beat with a simple or clear test. Conversely, there was generally no power of summary arrest for offences which did not come within the statutory definition of arrestable offences, with the result, for example, that an offender might run away from the scene of a crime without the police having any power to stop him.

[13]The new statutory scheme is intended to be uniform, self-contained, clear and to strike an appropriate balance between, on one side, the need for protection of the public and proper enforcement of the criminal law and, on the other side, protection of the individual against undue interference with his liberty. The scheme takes into account the principles of article 5, which therefore do not require separate consideration. Wednesbury principles are also accommodated within the scheme by the requirements that where suspicion that a person is about to commit, is committing or has committed an offence, is relied on as the basis for the person’s summary arrest, there must be reasonable grounds for the suspicion, and by the express limits on the exercise of the power of summary arrest contained in s 24(4) to (6). A police officer who carried out an arrest in bad faith, or in circumstances where his decision was irrational in the Wednesbury sense, would not be able to satisfy those provisions.

[14]In short, under the scheme a summary arrest by a police officer will be lawful if(a) the person arrested is about to commit, is committing or has committed an offence or

(b) the police officer has reasonable grounds for suspecting this to be so, provided in every case that the arresting officer has reasonable grounds for believing that the arrest is necessary for any of the reasons identified in s24(5). There are thus three pairs of alternatives, depending on whether the arrest relates to future, present or past behaviour or suspected behaviour of the person arrested. As to future behaviour, a police officer may arrest a person who is about to commit an offence (s24(1)(a)) or whom he has reasonable grounds for suspecting to be about to commit an offence (s24(1)(c)). As to present behaviour, he may arrest someone who is in the act of committing an offence (s24(1)(b)) or whom he has reasonable grounds for suspecting to be committing an offence (s24(1)(d)). As to past behaviour, he may arrest someone who has committed an offence (s24(3)(a)) or whom he has reasonable grounds for suspecting to be guilty of an offence (ss 24(2) / 24(3)(b)).

[15]Common law principles about what constitutes an arrest remain unchanged. They were stated by Lord Diplock in Holgate-Mohammad v Duke

[1984] 1 AC 437

, 441-2. Arrest is a continuing act. It starts with the arrester taking a person into his custody, either by action or by words restraining him from moving anywhere beyond the arrester’s control, and it continues until the person so restrained is either released from custody or remanded in custody by a judicial act. The mere act of taking a person into custody does not constitute an arrest unless the person knows, either at the time when he is taken into custody or as soon thereafter as it is reasonably practical to inform him, upon what charge or on suspicion of what crime he is being arrested. This requirement has now been put in statutory form in s28 of PACE.

[16]However the requirement that the person arrested should be told the nature of the offence or suspected offence is not to be approached over narrowly. The purpose is that the person arrested should know in essence on what grounds he is being arrested. In Chapman v DPP

(1989) 89 Cr App R 190

, 197 Bingham LJ said:

“It is not of course to be expected that a police constable in the heat of an emergency, or while in hot pursuit of a suspected criminal, should always have in mind specific statutory provisions, or that he should mentally identify specific offences with technicality or precision. He must, in my judgment, reasonably suspect the existence of facts amounting to an arrestable offence of a kind which he has in mind. Unless he can do that he cannot comply with section 28(3) of the Act by informing the suspect of grounds which justify the arrest.”

Section 24(3)(a)

[17]At an early stage of the appeal, the court raised a point which had not been considered at the trial or in either party’s skeleton argument on the appeal. Section 24(3)(a) provides that if an offence has been committed, a constable may arrest without a warrant anyone who is guilty of the offence. A central issue in the case was whether PC Holland assaulted the appellant or the appellant assaulted PC Holland.

[18]The questions put to the jury included the following:

“8. Has Joshua Shields proved that it is more likely than not that PC Holland punched him in the mouth? 9. Have the police proved that it is more likely than not that Joshua Shield s attached PC Holland?”

[19]The jury’s answers were no to question 8 and yes to question 9. There was therefore a finding by the jury that the appellant committed an assault on PC Holland. The court questioned why it was necessary to consider whether PC Maxwell had reasonable grounds for suspecting the appellant to be guilty of assaulting PC Holland, when the jury had found that the appellant did in fact assault PC Holland. The midday adjournment was extended to give counsel more time to consider the point.

[20]Mr Simblet for the appellant addressed the matter in his able and attractively presented submissions in two ways. First, he submitted that the jury’s answer to question 9 did not necessarily involve a finding that the assault on PC Holland was in the execution of his duty. That depended on whether PC Holland had a lawful right to remain on the premises after he had been ordered to leave. This was a point which had been argued before the recorder in relation to the appellant’s father’s claim. The recorder ruled that PC Holland was lawfully entitled to remain on the premises because of his concern for Lindsey’s physical safety. Mr Simblet had not sought to appeal against that ruling on behalf of the appellant’s father, but he would have considered doing so as part of the appellant’s grounds of appeal if the respondent had been seeking to justify the arrest under s24(3)(a). The point was significant because, he submitted, if the appellant was guilty only of common assault, s24(3)(a) could not be relied on as justification for an arrest for the more serious offence of assaulting a police constable in the execution of his duty.

[21]I do not accept Mr Simblet’s argument either on the facts or on the proper interpretation of s24(3)(a). As to the facts, there is no arguable ground for challenging the recorder’s ruling that PC Holland was lawfully entitled to remain on the premises after he had been ordered to leave. PC Holland explained the reason for his decision to stay in his witness statement as follows:

“21. I had not met any of those involved before and could not understand why I was being spoken to in such a manner. I was totally taken by surprise by his [the appellant’s father’s] attitude. I explained to Richard that I needed to check that Lindsey was all right. I was standing in the doorway of the kitchen at this time, with my back to a flight of stairs. Shields continued to shout, saying “I’m telling you to get out”. 22. I became even more concerned for Lindsey based on Richard’s attitude and aggression and more suspicious of what had occurred prior to my arrival. Richard was unusually reluctant to discuss matters with me and was blocking my path into the kitchen. I made no attempt to enter but I continued to speak in a calm tone and without raising my voice, telling him that I would not be leaving until I had spoken to the paramedics and checked that everything was all right.”

[22]It is unrealistic to argue that the recorder was wrong in holding that PC Holland was lawfully entitled to remain on the premises in those circumstances. It follows that the assault on him was in the execution of his duty.

[23]In any event, even if the assault on PC Holland had been the offence of common assault, it was an offence which was subsumed within the offence for which he was arrested. The appellant knew that he was being arrested for an assault on PC Holland, which he had committed. I accept that since a lawful arrest requires the person who is arrested to know the ground of his arrest, there must be a correlation between the offence or suspected offence giving rise to the power of arrest and the reason given to him. An arrest for theft, without there being any proper ground for such an arrest, could not be justified by the fact that the person might have been lawfully arrested for a motoring offence. That is obvious sense, but the necessary correlation should not be approached in the narrow and technical way for which Mr Simblet contends. What matters is that a person should know the substance of the reason for his arrest, in this case that the appellant had assaulted PC Holland. The narrow construction for which Mr Simblet contends would potentially lead to results which cannot sensibly have been intended. Suppose that a killer on the run is arrested by a police officer who has heard that the person is wanted for murder but knows no further details. Suppose also that the killer suffered from a form of dangerous mental illness by reason of which he was guilty of manslaughter on ground of diminished responsibility rather than murder. It would offend against reason to say that the arrested person would be entitled to damages for false imprisonment because the unlawful killing amounted to manslaughter rather than murder, for which he was arrested.

[24]Mr Simblet’s second ground of objection to the court disposing of the appeal by reference to s24(3)(a) was more powerful. Mr Simblet rightly accepted that the appellant’s acquittal by the magistrates of assaulting PC Holland did not give rise to any issue estoppel so as to prevent the respondent from calling evidence in the civil proceedings, as he did, that the appellant assaulted PC Holland and not vice versa. He also accepted that the respondent might have chosen to rely on s24(3)(a) in answer to the appellant’s claim for damages for trespass and false imprisonment; but the respondent had chosen not to do so. Instead the respondent relied in his defence solely on s24(2), i.e. that PC Maxwell had reasonable grounds for suspecting the appellant to be guilty of assaulting PC Holland. Furthermore, even after the jury had found as a fact that the appellant assasulted PC Holland, the respondent did not seek to rely on that finding in his final submissions to the recorder as a foundation for holding that the appellant’s arrest was lawful.

[25]Mr Wells on behalf of the respondent confirmed that a conscious decision had been made not to rely on s24(3)(a). The reason, he explained, was that it is not the policy of the respondent in cases where an acquitted defendant brings a claim for damages for assault and false imprisonment to advance as a defence that the claimant’s arrest was lawful because he was in fact guilty of the offence of which he had been acquitted.

[26]It is readily understandable that the respondent would not wish to rely solely on a plea that the claimant was guilty of the offence of which he had been acquitted, because the jury in the civil action might not be so persuaded. It was appropriate to plead that PC Maxwell reasonably suspected the appellant to be guilty of assaulting PC Holland, but there would have been nothing to prevent the respondent from pleading both that the appellant had in fact assaulted PC Holland and/or that PC Maxwell reasonably suspected that he had done so. The pleading would have then coincided with the evidence put forward in the respondent’s witness statements. If the respondent had adopted that course, the case would not have gone beyond the trial, for there would have been an unassailable finding that the appellant had assaulted PC Holland and the point which troubled the recorder would not have arisen. Although in many cases s24(3)(a) may overlap with ss24(2) / 24(3)(b), this cannot always be guaranteed to be so. Just as there may be a case in which a person is not guilty of an offence but the arresting officer had reasonable cause for suspecting him of being guilty, so there may be a case where a person is guilty of an offence but the arresting officer had insufficient information about it to provide reasonable grounds for suspecting that he was guilty. Such a situation would be most likely to occur where the arresting officer acted at the request or on the instruction of another officer, but the information given to the arresting officer was too sparse to afford reasonable grounds for the necessary suspicion (as in O’Hara v Chief Constable of The Royal Ulster Constabulary

[1997] AC 286

[27]To return to Mr Simblet’s point, he rightly submitted that it would be contrary to normal principles for this court to allow a point to be taken on an appeal which the party in whose favour the point goes had made a conscious choice not to advance before the lower court, and Mr Wells did not ask the court to do so. He was content to rely in this court, as in the court below, on PC Maxwell having had reasonable grounds for suspecting that the appellant was guilty of assaulting PC Holland. In these circumstances I agree that it would be wrong for this court of its own initiative to proceed on a basis different from that argued by the respondent.

Section 24(2)

[28]Mr Simblet’s first submission was that PC Maxwell did not have sufficient information to be able reasonably to suspect that the appellant had assaulted PC Holland in the execution of his duty. The point of challenge was narrow, because Mr Simblet accepted that PC Maxwell had reasonable cause to suspect that the appellant had assaulted PC Holland. The point which he challenged was whether PC Maxwell also had sufficient information to suspect that the assault occurred in the execution of PC Holland’s duty. This is a short point of fact. PC Maxwell’s knowledge of the incident began when he heard a call on his radio from PC Holland asking for a patrol to back him up at the premises to which he had gone. A few minutes later he was aware that PC Holland put out a “con requires” call, indicating that he was in personal danger, and PC Maxwell went to the scene. When he arrived the front door was open and he could hear yelling and screaming. On going upstairs he could see Lindsey lying on her back on the floor being attended to by ambulance personnel. The appellant was behaving in such a way that it was necessary for PC Maxwell and another officer to form a human shield between him and PC Holland. When PC Holland said that the appellant was “under arrest for assault police”, it was an obvious reference to an assault on himself, since he was the only officer present until reinforcements arrived. Just as PC Maxwell had reasonable cause to suspect that the appellant had assaulted PC Holland, so also he had reasonable ground to suspect that PC Holland was present because of what was going on in the house – a scene of disturbance with an injured teenage girl receiving treatment and two males behaving in a violent and threatening manner, despite attempts to calm them down. In those circumstances, there was amply sufficient material for PC Maxwell reasonably to suspect that PC Holland was there in the execution of his duty. However, even if PC Maxwell only had grounds for reasonable suspicion that the appellant had committed the offence of common assault, for reasons already given that would be sufficient to make the arrest lawful, provided that the necessity requirement set out in s24(5) was met. As to that requirement, Mr Simblet has not sought to argue that PC Maxwell did not reasonably consider that it was necessary to arrest the appellant to prevent further physical harm to others and to ensure prompt and effective investigation into the offence.

[29]There remains the wider point which troubled the recorder. Mr Simblet’s argument went as follows: 1. The power of arrest under s24 involves the exercise of a discretion. 2. No discretion can be validly exercised if the person exercising it is not conscious that he is in fact exercising a discretion. 3. PC Maxwell believed himself to be assisting in detaining someone who had already been told that he was under arrest. He could not therefore be exercising the discretion to arrest given to him by s24.

[30]Attractively as the point was argued, in my judgment it is fallacious. It fails properly to recognise the nature of the present statutory code. PC Maxwell reasonably suspected that the appellant was guilty of assaulting PC Holland and reasonably believed that it was necessary to arrest the appellant to prevent him from causing further physical harm to officers and to ensure the prompt and effective investigation of the offence. Having the power of arrest and reasonably believing it to be necessary, he was not required to go through any further mental process before detaining the appellant. The fact that he erroneously believed that PC Holland had begun the process of arrest was immaterial to the lawfulness of the arrest made by him.

[31]I would dismiss the appeal.

Lord Justice Moses:

[32]I agree.

Lord Justice Thomas:

[33]I also agree.