Walker v The Commissioner of the Police of the Metropolis (Rev 1) [2014] EWCA Civ 897

[2014] EWCA Civ 897Case No B2/2013/2372
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
His Honour Judge Freeland QC
1UD11492
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 1 st July 2014
Before
LORD JUSTICE RIMERLORD JUSTICE TOMLINSONSIR BERNARD RIX
Between
WalkerAppellantThe Commissioner of the Police of the MetropolisRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Anthony Metzer QC (instructed by Hodge Jones & Allen LLP) for AppellantMark Ley Morgan (instructed by Metropolitan Police Services) for RespondentHearing Hearing date : 21 March 2014
JudgmentLord Justice Rix :
[1]On 12 July 2008 at shortly before 4pm, the claimant, Mr Alexander Walker, got into a fight with the police in Rita Road, London SW8. The incident arose out of a complaint that he had hit his partner, Ms Cadice Lecky. On arrival of the police, Ms Lecky shouted:
“Fucking arrest him. He punched me. Get him the fuck out of here.”
Less than two and a half minutes later, the incident was over, with Mr Walker taken off to the police station in handcuffs. There he was detained for 7 hours before being released on bail. The custody record stated that he had been arrested for “affray, assault police officer”. On 23 September 2008 Mr Walker was charged with assault of a police officer in the execution of his duty. He stood trial in Camberwell Green Magistrates’ Court on 20-21 April 2009 and was acquitted following the close of the prosecution case, on the ground that his initial detention had been unlawful. It followed that the charge that he had assaulted a police officer in the execution of his duty failed on an essential ingredient of the offence. The district judge found that the police officer concerned, PC Adams, had restricted Mr Walker’s movements in a doorway, without intending or purporting to arrest him, thereby detaining him unlawfully, and that Mr Walker’s reactions were reasonable.[2]It was almost two years later that Mr Walker’s solicitors wrote a letter of claim, dated 11 February 2011. His claim form was issued on 2 July 2011. In it he claimed damages for false imprisonment, assault, and malicious prosecution. The trial of that civil claim took place before a judge alone, His Honour Judge Freeland QC, in the Central London County Court, between 1 and 5 July 2013. The judge’s reserved and detailed judgment was given on 1 August 2013. Mr Walker’s claim failed totally. He rejected Mr Walker’s evidence and accepted the police evidence. Mr Walker now appeals with the limited leave of Vos LJ. He was refused permission to challenge the judge’s general findings, but his appeal is concerned with three comparatively narrow points arising out of his initial detention and arrest, which, as found by the judge, had preceded the major part of the fight. I should explain that his arrest, although completely secured only after he had been overpowered and handcuffed, had been initiated before the fight and was the catalyst of the violence which then ensued.[3]Apart from the basic facts described above, almost everything else about the incident had been disputed at the trial of Mr Walker’s claim, including the circumstances of that initial detention and arrest.[4]Thus, Mr Walker’s case and evidence were that, following an argument with his girlfriend and the arrival of the police, PC Adams approached him in a confrontational and aggressive manner. He indicated that he did not want to speak to the officer and told him to leave him alone. However, he found himself blocked in a doorway by PC Adams. He never threatened nor touched the officer, who, without saying anything about arrest, assaulted him. They fell over a wall where PC Adams sought to pin him down and handcuff him. He admitted biting the officer in his attempt to give himself room to breathe. PC Adams punched him in the face a number of times, and another officer, PC Cracknell joined in. Still further officers arrived, his legs were strapped and he was carried to a police van. On his way he was kneed in the stomach and chest. At the station he saw a forensic medical examiner, and his injuries (a black eye, bruising, swellings, scrapes and cuts) were in evidence. At trial, Mr Walker insisted that he had not lost his temper. He denied that PC Adams had tried, or had cause, to calm him down. He was calm. He denied threatening to “bang” the officer, or pushing him in the chest. He was attacked without cause. His evidence was generally supported by that of his mother, who was at the scene, but she also gave some evidence which detracted from her son’s case, such as hearing PC Adams say “Calm down mate or you will end up getting arrested” and the word “arrest” being used.[5]The police evidence, on the other hand, was very different. PC Adams gave evidence in accordance with a witness statement made for trial which annexed his MG 11 witness statement which he had drawn up within half an hour of getting back to the police station. He said that on arrival at the scene he heard Ms Lecky say that Mr Walker had punched her. He considered that he had reasonable grounds to suspect Mr Walker of an arrestable offence, but he decided to make some enquiries first in the hope of avoiding making an arrest. Mr Walker was in a doorway and he positioned himself to prevent him getting past. His first words were “Calm down mate or you will end up getting arrested”. His witness statement said, “I did not touch the claimant but I made it very clear to him that he was not free to move.” Mr Walker was trying to get past, and was shouting and swearing in an aggressive manner, agitated, irate and on his toes. Mr Walker threatened to “bang” him. The officer again told him to calm down or he would be arrested. Mr Walker’s reaction was to say “who are you, you’re just men in suits, just fuck off” and to push him firmly in the chest. It was at that point that PC Adams decided enough was enough and said that he was under arrest for “public order”. He did not have time to add “section 5” or words to that effect (that is the section of the Public Order Act 1986 which is headed “Intentional harassment, alarm or distress” and speaks of the use of “threatening, abusive or insulting words or behaviour, or disorderly behaviour” with “intent to cause a person harassment, alarm or distress”), because at that moment Mr Walker began a fight (“All hell broke loose”) by swinging the handcuffs, which PC Adams was attempting to deploy, towards the officer’s face. Nevertheless, it was section 5 which PC Adams had in mind. PC Cracknell came to help, because PC Adams also had Mr Walker’s mother and girlfriend to contend with, who were seeking to help Mr Walker. PC Adams was bitten by Mr Walker on his left forearm and his left wedding finger. He was kicked and bloody. Mr Walker’s mother and girlfriend were also arrested and taken to the police station. PC Adams’ evidence was supported by the evidence of PC Cracknell and PC Barton, and that of a neighbour witness, Ms Buckmaster.[6]The judge preferred the evidence of the police and Ms Buckmaster to that of Mr Walker and his mother. He found Mr Walker to be “an unreliable and unimpressive witness”. He had made no complaint at the time, and none for two years after his acquittal. Mr Walker had a turbulent and at times violent relationship with Ms Lecky. He had been fighting with her immediately before the arrival of the police and he had remained angry, aggressive and abusive after their arrival. The judge rejected his evidence as to what was said before the fight and who landed the first blow. He also found Mr Walker’s mother to be an unimpressive and unreliable witness. She had accepted a caution at the police station, and had made no complaint. She naturally wished to support her son, but even so in cross-examination came to make concessions against her son’s interest.[7]On the other hand, the judge found PC Adams to be “an entirely credible, straightforward and honest witness”. The longer he was cross-examined, the more he impressed the judge, who described his evidence, including his original MG 11 statement, to be compelling, credible and truthful. The judge also accepted PC Cracknell and PC Barton as careful, accurate and impressive witnesses, and the evidence of Ms Buckmaster as reliable.

The judge’s critical findings were therefore in favour of the police, and I set them out below:

“115…In particular, I am sure that the claimant had not calmed down or ameliorated his behaviour by the time the police arrived, but that he remained aggressive, truculent, objectionable and threatening towards Constable Adams. 116. Of course he was a smaller man, of much slighter build, but I am sure that he reacted aggressively to PC Adams’ requests to calm down and that he threatened to bang PC Adams and he pushed him. I am fully satisfied by a very wide margin that the first threat and push came from the claimant…I reject the claimant’s evidence categorically and unequivocally that he had calmed down… 117…I reject categorically any suggestion that [PC Adams] was a “bull in a china shop” or that he was aggressive or that he was intimidating. 118. I hold, as indeed is accepted as an important fact, that he did not lay physical hands on the claimant at all to start with and I hold that he never in fact laid physical hands on the claimant when he went up to him… 120…I have concluded in the end without doubt that the claimant was aggressive and abusive towards Constable Adams. The claimant was told twice in a measured way to calm down, but he did not. He was and remained in an agitated state and in a state of temper. He threatened to assault and bang PC Adams. He pushed him quite violently in the chest… 121. I am fully satisfied that very shortly after PC Adams arrested the claimant for a public order offence and I am quite sure that he had section 5 in mind, but matters escalated very quickly because of the claimant’s violence and his temper… 122. They fell over the large wall…I am fully satisfied, having considered this issue with great care, that he bit Constable Adams twice, as the officer alleges…to the forearm and ring finger as described by the officer. 123. I am also and equally satisfied by a wide margin that Constable Adams struck the claimant only a single blow to the face and he did not strike him two or three blows. I am fully satisfied that the blow was in all the circumstances proportionate, reasonable and not excessive. In my judgment, it was justified and not unreasonable. 124. I reject the claimant’s case as a tissue of lies that he was further assaulted by Constable Cracknell and/or Constable Barton…I determine all of the disputed facts in favour of the defendant and in the end I do so by a wide margin.”
[9]In the circumstances, the claim for malicious prosecution got nowhere, and has not resurfaced on this appeal.[10]Nevertheless, there was a legal weakness in the Commissioner’s defence to Mr Walker’s claim with respect to the claims for false imprisonment and assault in that it was always accepted by the police that Mr Walker’s initial detention in the doorway in Rita Road was not for the purpose of arrest, but only for the purpose of pursuing enquiries. It was accepted by defence counsel that this amounted to a detention. Indeed the Commissioner’s defence had pleaded that “PC Adams lawfully prevented the claimant from moving away (and attempted to get control of him) by backing him into a doorway.” This enabled Mr Walker to argue, at trial as he does again on this appeal, that that initial detention was unlawful and justified Mr Walker to use reasonable force to extricate himself from what was an unlawful, if brief, imprisonment. It was therefore the police who acted unlawfully in the fight which then broke out and which led to Mr Walker being taken off to the police station.[11]Moreover it was at trial and is again on this appeal submitted on Mr Walker’s behalf, that that initial unlawfulness was compounded by the failure of PC Adams to effect a lawful arrest at the time when, on PC Adams’s evidence, he did purport to arrest Mr Walker, namely immediately before the fight broke out. As to that submission, two points survive to this appeal, which are raised pursuant to section 28(3) of the Police and Criminal Evidence Act 1984 (“PACE”). That provides that “no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as practicable after, the arrest”. It is said that the judge was wrong to have accepted that PC Adams gave any reason at all for his arrest; alternatively, it is said that the reason which PC Adams said he gave (“public order”) was an insufficient statement of the ground for arrest.[12]These, then, are what I have called the comparatively narrow issues which have survived to this appeal. They can be expressed as follows:(i) Was Mr Walker’s initial detention in the doorway unlawful, thus amounting to false imprisonment?(ii) If so, was Mr Walker’s reaction to that detention a reasonable and proportionate exercise in self-defence?(iii) Was the purported arrest for “public order” a valid arrest within section 28(3) of PACE? The judge’s judgment[13]On these three issues the judge’s findings were as follows. “119…I am fully satisfied that Constable Adams thus positioned himself in such a way as to prevent the claimant escaping. He honestly and reasonably feared that the claimant would try to escape. Constable Adams used the curtilage of the building and the garden to assist. Thus he positioned himself, for a very short while, a matter of seconds, to ensure that the claimant was not free to leave. 120…He threatened to assault and bang PC Adams. He pushed him quite violently in the chest. This was, in my judgment, and having considered the matter with great care, a wholly disproportionate, unnecessary and unreasonable response and reaction to Constable Adams’ request to calm down. After all, Constable Adams had not even laid a finger on the claimant. The claimant was not physically restrained. True, Constable Adams was 6 foot 4 inches and 18 and a half stone, but the claimant had placed himself in the doorway. The claimant knew what the officers were there for and he knew precisely what Constable Adams was investigating. He knew that Miss Lecky had alleged that he had assaulted her by pushing [sic, sc punching] her, yet he remained aggressive, violent and truculent and entirely failed to ameliorate his behaviour or respond to the officer’s reasonable requests. 121. I am fully satisfied that very shortly after PC Adams arrested the claimant for a public order offence and I am quite sure that he had section 5 in mind, but matters escalated very quickly because of the claimant’s violence and his temper. The claimant, as I find, heard that he was under arrest and was given full and adequate reasons for his arrest so as to convey to him in ordinary language the reason for his arrest (see Taylor supra).”[14]The judge subsequently turned to what he called “Chapter 8. Discussion, Analysis and My Conclusions on the Issues of Law that have been Raised in this Case” and continued… “125. It is apparent, for the reasons given, that the claimant was given full and adequate reasons for his arrest and the section 28(3) challenge fails (see Taylor supra)… 127. Third, the claimant has failed to prove that he was subjected to unnecessary and excessive force. The defendant has fully justified the full extent of the force used. The claim in assault must therefore fail… 129. But all this notwithstanding, there remains the claimant’s freestanding assertion that, notwithstanding any findings of fact that I might make, his initial and admitted detention in the doorway was unlawful and a false imprisonment. This submission of law merits of course very serious consideration…I have set out above the relevant legal framework and the principles of law which must be followed. I have fully in mind the judgment of Robert Goff LJ in Collins v. Wilcock (supra) and I regard that decision as the seminal case on the point… 130. Sixth, I do not accept the defendant’s submission that R v. Fiak (supra) is indistinguishable on the facts from this case or creates a new and exceptional departure from Collins, or is in any way determinative of the result in this case. In my judgment it is but a working example of the principles of law applicable in this area on the challenge that was raised before the court. 131. Seventh, but it seems to me that the crucial and important findings of fact that I have made above are of real importance in the determination of this issue of law.(a) I am fully satisfied that not every trivial interference with a citizen’s liberty amounts to a course of conduct sufficient to take an officer outside the course of his duties.(b) Likewise, depending of courses on the circumstances, an officer can lawfully detain a person (even by force if necessary and appropriate) prior to arresting him or her.(c) The officer’s actions must not go beyond generally accepted standards of conduct, of touching a person to engage his attention (see Collins supra, Robert Goff LJ, 1180 D to E, 1178 G).(d) Each case will turn uniquely on its own facts (see Collins supra and the line of authorities thereafter). 132. Here I conclude that (a) the claimant moved of his own volition and initiative and free will to the entrance to number 21 Rita Road…(b)…He knew that Cadice Lecky had made quite a serious allegation of assault, namely by punching,…against him…(c) PC Adams did not at any stage use any actual or threatened physical restraint. I so hold. He never laid hands on the claimant before the arrest or the events leading up to the arrest for the lawful Public Order Act offence. (d) The claimant was not in the true sense deprived of his liberty. His freedom of movement was restricted, in my judgment, fleetingly and for a very short time, measured only in a matter of seconds.(e) This was accordingly, in my judgment, a trivial and fully justified interference with the claimant’s freedom of movement. It did not, in my judgment, take Constable Adams outside the scope of his duties… 133. At all times, however, I hold that PC Adams honestly and reasonably suspected that the claimant had assaulted Miss Lecky and he could indeed have arrested the claimant for assault. Wisely, in my judgment, he preferred not to do so immediately. He wanted, in his own words, which I accept, that little bit more. That was a pragmatic judgment for him to have made. (g) Thus PC Adams’ actions did not in all the circumstances and on the facts as I have found them to be, fall outside the acceptable standards of conduct of, for example, touching a person to engage his attention (see Collins supra). He did not even touch the claimant to engage his attention. The claimant was immediately aggressive, volatile and objectionable. He was twice told to calm down, as I have found, before he was arrested. (i) PC Adams was, in my judgment, fully entitled to detain the claimant, in the circumstances and on the facts as I have found proved, to establish whether an offence had been committed (see Collins supra and illustratively only Fiak supra). 134. (k) This detention was brief. It amounted to a passage of only seconds. It did no more than fleetingly restrict the claimant’s freedom of movement and it did not amount to a deprivation of liberty and it was, in my judgment, fully justified…If I am wrong about that, I would have held unequivocally and by a wide margin that the claimant’s reaction to this technical and brief detention was on the facts a gross and disproportionate overreaction. It is true that a person cannot weigh to any nicety the force that may be used to defend oneself, or free oneself from the snare of a wrongful detention. But, in my judgment the overriding consideration is one of reasonableness and proportionality on the unique facts of each individual case. 135. I would hold that the claimant’s reaction to Constable Adams’ request to calm down twice was a gross overreaction and a total overreaction in all the circumstances. It was disproportionate and it was unreasonable…He was and remained hyped up…The threat to PC Adams to bang him, punch him or hit him was in the circumstances, as I have found, an aggressive, unnecessary and disproportionate overreaction…The claimant’s reaction to [threaten to] bang PC Adams and then to push him violently in the chest was in all the circumstances and on the facts as I have found them a violent, unnecessary and unlawful overreaction.”[15]It would seem therefore that the judge accepted that there was, as had been admitted, a detention, but he characterised it as brief, trivial and technical, amounting to a few seconds. It restricted Mr Walker’s movements while it lasted, but it did not amount to a deprivation of liberty or to unlawful false imprisonment. This was despite the fact that PC Adams was not then exercising his power of arrest, but was investigating the situation. The detention was “justified” by the leading authority (Collins v. Wilcock [1984] 1 WLR 1172 (Div Ct)), where Robert Goff LJ explained that short of exercising a power of arrest a police officer can only act within the acceptable standards of an ordinary citizen. PC Adams had therefore stayed within those limits, until he moved to arrest Mr Walker on the ground of section 5 of the Public Order Act. Even if the brief detention had been unlawful, Mr Walker’s reactions had been unreasonable and disproportionate in both threatening violence and carrying out an act of actual violence. The still more serious violence which later ensued was in the course of resisting a lawful arrest.[16]The judge went on to say that if he were wrong in characterising the brief detention as lawful, then he would have assessed Mr Walker’s damages at only £5. He added that he would have awarded £1,400 for the alleged assault, if that had been proved, and £2,000 for the imprisonment of 7 hours which followed.

The jurisprudence

[17]The leading case is recognised as being Collins v. Wilcock, and Robert Goff LJ’s judgment there considered in detail the jurisprudence up to that time. The case concerned a woman who was suspected of soliciting in the street for the purposes of prostitution. The police asked her to get into their car for the purpose of being questioned, but she walked away. A policewoman followed her, but the woman continued to ignore her. The policewoman then took hold of the woman’s arm to detain her: the woman swore at her and scratched her. The woman was convicted of assaulting a police officer in the execution of her duty. Her appeal succeeded on the ground that, save when exercising a power of arrest, a police constable had no greater powers than a member of the public to detain another: therefore anything that went beyond generally accepted physical contact was a battery, the detention was unlawful, and the officer was not acting in the execution of her duty. That was what had happened in the instant case.[18]Robert Goff LJ considered the matter as rooted in principle as follows (at 1177A-D):
“The law draws a distinction, in terms more easily understood by philologists than by ordinary citizens, between an assault and a battery. An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person. Both assault and battery are forms of trespass to the person. Another form of trespass to the person is false imprisonment, which is the unlawful imposition of restraint on another’s freedom of movement from a particular place. The requisite mental element is of no relevance in the present case. We are here concerned primarily with battery. The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery…as Blackstone wrote in his Commentaries, 17th ed. (1830), vol. 3, p. 120: “the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every person’s body being sacred, and no other having the right to meddle with it, in any the slightest manner.”
The effect is that everybody is protected not only against physical injury but against any form of physical molestation.” “the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every person’s body being sacred, and no other having the right to meddle with it, in any the slightest manner.”[19]Robert Goff LJ then went on to show how the law nevertheless in a pragmatic way created exceptions implied from the consent of people to the everyday interaction of physical contact, such as jostling in a busy place, or a hand gripped in friendship, or a friendly slap on the back. Such cases were now regarded as “falling within a general exception embracing all physical contact which is generally acceptable in the ordinary contact of daily life” (at 1177G). But – “a distinction is drawn between a touch to draw a man’s attention, which is generally acceptable, and a physical restraint, which is not. So we find Parke B observing in Rawlings v Till (1837) 3 M. & W. 28, 29, with reference to Wiffin v Kincard, that “There the touch was merely to engage [a man’s] attention, not to put a restraint on his person.” Furthermore, persistent touching to gain attention in the face of obvious disregard may transcend the norms of acceptable behaviour, and so be outside the exception…” (at 1178B).[20]Robert Goff LJ then turned to the application of the principle to the case of police officers going about their duties. He said: “The distinction drawn by Parke B. in Rawlings v Till is of importance in the case of police officers. Of course, a police officer may subject another to restraint when he lawfully exercises his power of arrest: and he has other statutory powers, for example, his power to stop, search and detain persons under section 66 of the Metropolitan Police Act 1839 (2 & 3 Vict. C. 47), with which we are not concerned. But, putting such cases aside, police officers have for present purposes no greater rights than ordinary citizens. It follows that, subject to such cases, physical contact by a police officer with another person may be unlawful as a battery, just as it might be if he was an ordinary member of the public. But a police officer has his rights as a citizen, as well as his duties as a policeman. A police officer may wish to engage a man’s attention, for example if he wishes to question him. If he lays his hand on the man’s sleeve or taps his shoulder for that purpose, he commits no wrong. He may even do so more than once; for he is under a duty to prevent and investigate crime, and so his seeking further, in the exercise of that duty, to engage a man’s attention in order to speak to him may in the circumstances be regarded as acceptable (see Donnelly v Jackman [1970] 1 W.L.R. 562). But if, taking into account the nature of his duty, his use of physical contact in the face of non-co-operation persists beyond generally acceptable standards of conduct, his action will become unlawful; and if a police officer restrains a man, for example by gripping his arm or his shoulder, then his action will also be unlawful, unless he is lawfully exercising his power of arrest. A police officer has no power to require a man to answer him, though he has the advantage of authority, enhanced as it is by the uniform which the state provides and requires him to wear, in seeking a response to his inquiry. What is not permitted, however, is the unlawful use of force or the unlawful threat (actual or implicit) to use force; and, excepting the lawful exercise of his power of arrest, the lawfulness of a police officer’s conduct is judged by the same criteria as are applied to the conduct of any ordinary citizen of this country” (at 1178D-H).[21]Robert Goff LJ considered some previous jurisprudence in the following passage (at 1179A-F):
“In Kenlin v Gardner [1967] 2 Q.B. 510 it was held that the action by police officers in catching hold of two schoolboys was performed not in the course of arresting them but for the purpose of detaining them for questioning and so was unlawful (see per Winn LJ at p. 519). Similarly, in Ludlow v Burgess (Note) (1971) 75 Cr.App.R. 227, 228 it was held that “this was not a mere case of putting a hand on [the defendant’s] shoulder, but it resulted in the detention of [the defendant] against his will”, so that the police officer’s act was “unlawful and a serious interference with the citizen’s liberty” and could not be an act performed by him in the execution of his duty. In Donnelly v. Jackman [1970] 1 W.L.R. 562,the police officer wished to question the defendant about an offence which he had cause to believe that the defendant had committed. Repeated requests by the police officer to the defendant to stop and speak to him were ignored. The officer tapped him on the shoulder; he made it plain that he had no intention of stopping to speak to him. The officer persisted and again tapped the defendant on the shoulder, whereupon the defendant turned and struck him with some force. The justices convicted the defendant of assaulting the officer in the execution of his duty, and this court dismissed an appeal from that conviction by case stated. The court was satisfied that the officer had not detained the defendant, distinguishing, at p. 565, Kenlin v Gardiner [1967] 2 Q.B. 510 as a case where the officers had in fact “detained” the boys. It appears that they must have considered that the justices were entitled to conclude that the action of the officer, in persistently tapping the defendant on the shoulder, did not in the circumstances of the case exceed the bounds of acceptable conduct, despite the fact that the defendant had made it clear that he did not intend to respond to the officer’s request to stop and speak to him; we cannot help feeling that this is an extreme case.”
[22]Finally, Robert Goff LJ turned to the question posed by the magistrate for that court’s consideration, which was in terms whether a constable was within her duty “when detaining a woman against her will for the purpose of questioning her…”. He said (at 1180F-H):
“Furthermore, the word “detaining” can be used in more than one sense. For example, it is a commonplace of ordinary life that one person may request another to stop and speak to him; if the latter complies with the request, he may be said to do so willingly or unwillingly, and in either event the first person may be said to be “stopping and detaining” the latter. There is nothing unlawful in such an act. If a police officer so “stops and detains” another person, he in our opinion commits no unlawful act, despite the fact that his uniform may give his request a certain authority and so render it more likely to be complied with. But if a police officer, not exercising his power of arrest, nevertheless reinforces his request with the actual use of force, or with the threat (actual or implied) to use force if the other person does not comply, then his act in thereby detaining the other person will be unlawful. In the former event his action will constitute a battery; in the latter event, detention of the other person will amount to false imprisonment. Whether the action of a police officer in any particular case is to be regarded as lawful or unlawful must be a question to be decided on the facts of the case.”
[23]In most of those cases, the “detention” of the suspected person was exercised by physical contact (see for instance Kenlin v. Gardiner, Ludlow v. Burgess, Collins v. Wilcock itself, and, more recently, Wood v. DPP [2008] EWHC 1056 (Admin) (a taking by the arm). The detention was effected in circumstances where the officer was not at the time exercising a power of arrest, but was seeking to investigate or question a suspected person. In the present case, as the judge emphasised, there was no physical contact as such. However, the logic of the cases and of Robert Goff LJ’s judgment demonstrates that if a police officer, not exercising the power of arrest, detains a person in a way that goes beyond the acceptable conduct of an ordinary member of the public, then that will be false imprisonment, as where he uses the threat, actual or implied, to use force if the other person does not comply.[24]So, Halsbury’s Laws of England, 5th ed, 2010, vol 97 at para 542, headed “Restraint of persons”, states – “Any total restraint of the liberty of the person, for however short a time, by the use or threat of force or by confinement, is an imprisonment. It is not necessary that the person detained is aware of the detention at the time. To compel a person to remain in a given place is an imprisonment, but merely to obstruct a person attempting to pass in a given direction or to prevent him moving in any direction but one is not.”[25]Among the cases cited by Halsbury in its footnotes to this passage is Glynn v. Houston (1841) 2 Man & G 337, where a guard was placed at the door of a house and it was inferred that that was done so that anyone leaving should be stopped. Reference can also be made to Austin v. Commissioner of the Police of the Metropolis [2007] EWCA Civ 989, [2008] QB 660, where a crowd of people were “kettled” at Oxford Circus in order to control a demonstration, and this court held that there would have been an unlawful imprisonment had the circumstances not created a rare exception where it was proved that the kettling was necessary to prevent an imminent breach of the peace by others. The court of appeal judgment was appealed to the House of Lords, but only on the separate point under article 5 of the European Convention of Human Rights: [2009] UKHL 5, [2009] 1 AC 564. The appeal was dismissed.[26]The contrast with such confinement is a mere obstruction, where a person is obstructed in only one direction, but can pass in another, even if it is not the way the person would choose to go. Thus in Bird v. Jones (1845) 7 QB 742, another of the cases cited by Halsbury, the claimant gatecrashed an enclosure appropriated for spectators of a boat race who had paid for entry: his way was then blocked in one direction, but he could pass in another. There was a division of opinion on the court, with Lord Denman CJ dissenting (“I had no idea that any person in these times supposed any particular boundary to be necessary to constitute imprisonment, or that the restraint of a man’s person from doing what he desires ceases to be an imprisonment because he may find some means of escape”). However, the majority of the court (Coleridge, Williams, and Patteson JJ) held that there was no imprisonment. Each of those three judges gave his own judgment, but the other two agreed with that of Patteson J, who said this (at 751-752):
“I have no doubt that, in general, if one man compels another to stay in any given place against his will, he imprisons that other just as much as if he locked him up in a room: and I agree that it is not necessary, in order to constitute an imprisonment, that a man’s person should be touched. I agree, also, that the compelling a man to go in a given direction against his will may amount to imprisonment. But I cannot bring my mind to the conclusion that, if one man merely obstructs the passage of another in a particular direction, whether by threat of personal violence or otherwise, leaving him at liberty to stay where he is or to go in any other direction if he pleases, he can be said thereby to imprison him. He does him wrong, undoubtedly, if there was a right to pass in that direction, and would be liable to an action on the case for obstructing the passage, or of assault, if, on the person persisting in going in that direction, he touched his person, or so threatened him as to amount to an assault. But imprisonment is, as I apprehend, a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience it may bring on him.”
[27]In more recent years Collins v. Wilcock has been repeatedly applied, either in name or in substance, for instance in Wood v. DPP [2008] EWHC 1056 (Admin), McMillan v. Crown Prosecution Service [2008] EWHC 1457 (Admin) and R v. Central Criminal Court ex parte Shah [2013] EWHC 1747 (Admin). It was distinguished, however, in R v. Fiak [2005] EWCA Crim 2381, where on the special facts found the officer had already commenced his lawful arrest (for drink driving) at the time when the fight broke out, even if it was only formally completed after the defendant had been subdued (see at para [14]).[28]In the present case, it was common ground both that PC Adams was not in the course of arresting Mr Walker at the relevant time (so that R v. Fiak did not apply, as the judge accepted), and that he was detaining him by confining him within the narrow area of the doorway. As the judge found: “I am fully satisfied that Constable Adams thus positioned himself in such a way as to prevent the claimant escaping…to ensure that the claimant was not free to leave” (at [119]); “his initial and admitted detention in the doorway” (at [129]). There was some discussion at trial and in the judgment as to whether PC Adams had backed Mr Walker into the doorway (as his MG 11 statement had said and the defence had pleaded) or whether PC Adams had merely taken advantage of Mr Walker’s own movement into the doorway in order to detain him there. Ultimately, on the evidence the judge found that the latter had occurred, and it appears to me to be consistent with the evidence given at trial by both main protagonists, as recorded in the judge’s judgment. However, in the circumstances of the confinement found by the judge, it does not seem to me to matter which version is accepted. On behalf of the respondent Commissioner, Mr Mark Ley Morgan, accepted that in this case there was both a detention and an intention to detain on the part of PC Adams.[29]Why then did the judge find that there had been no unlawful detention? The judge stressed the following factors. He said “not every trivial interference with a citizen’s liberty amounts to a course of conduct sufficient to take an officer outside the course of his duties” and “an officer can lawfully detain a person (even by force if necessary and appropriate) prior to arresting him or her” (at para [131]’s (a) and (b)). He appears to have regarded the Collins v. Wilcock qualification that the officer must nevertheless not go beyond generally accepted standards of conduct as essentially concerned with physical contact (see at para [131]’s (c) and also his emphasis on the lack of physical contact on the part of PC Adams in this case (at para [132] at (c), and at para [133]). And he regarded the detention as brief and trivial, and that Mr Walker was not “in the true sense deprived of his liberty” (at para [132] (d) and (e), and at para [134] (k)). He also said that PC Adams was “fully justified in postponing the formal completion of the arrest…until the facts were fully investigated and elicited” (at para [133] at (i)).[30]In my judgment, these are not good reasons for holding that Mr Walker’s detention and confinement were within generally acceptable standards of the conduct of ordinary citizens and thus lawful. It is not acceptable for an ordinary citizen to interfere with a person’s liberty by confining him or her in a doorway. Although the confinement was for only a few seconds, the principle in question is framed in terms of “for however short a time” (Bird v. Jones, Halsbury’s Laws). It is understandable that where liberty is in question, as in the case of assault (the context in which Robert Goff LJ made the point in Collins v. Wilcock), there is no room for complaisance. Moreover, the confinement would have been longer if the situation had not developed into an arrest and fight. The judge refers to the detention as trivial, perhaps picking up the use of that expression (and his statement of principle at his para [131] at (a)) from Donnelly v. Jackman, to which Mr Ley Morgan referred us. Thus in Donnelly v. Jackman at 989e-f, Talbot J said this:
“Turning to the facts of this matter, it is not very clear what precisely the justices meant or found when they said that the officer touched the appellant on the shoulder, but whatever it was that they really did mean, it seems clear to me that they must have felt that it was a minimal matter by the way in which they treated this matter and the result of the case. When one considers the problem: was this officer acting in the course of his duty, in my view one ought to bear in mind that it is not every trivial interference with a citizen’s liberty that amounts to a course of conduct sufficient to take the officer out of the course of his duties.”
However, the authority of Donnelly v. Jackman has, in my judgment, been much weakened by what was said about it by Robert Goff LJ in Collins v. Wilcock, and by the development of principle to be found there. In any event, the facts found here are different.[31]As for the judge’s remark that Mr Walker was not in the true sense deprived of his liberty, that appears to be an invocation of the test under article 5 of the European Convention of Human Rights (“ECHR”). However, that concept is not identical with the tort of false imprisonment, and there may be a deprivation of liberty without false imprisonment and vice versa: see Austin’s case at para [87]. As for the judge’s remark that PC Adams was justified in postponing the formal completion of the arrest, that appears to be an invocation of the exceptional situation in Fiak: but the judge could not have intended to bring himself within the Fiak exception, because he explicitly said that the defence was wrong to invoke it as directly applicable and it was in no way determinative (at para [130]), and in any event the facts did not support a Fiak analysis. Of course PC Adams was entitled to postpone an arrest, even where he considered he already had grounds for one, so as first to carry out an investigation: but that did not entitle him to excuse a detention on the ground that he was also exercising a power of arrest at the same time, when he was not.[32]Mr Ley Morgan urged the court to say that only the judge’s decision could be adequate to protect the police in the difficult duties they have to perform; and that a successful appeal on this point would encourage the police to exercise their power of arrest from the outset. However, the rationale of Collins v. Wilcock has been influential in our law for thirty years, and is underpinned by the still older jurisprudence which Robert Goff LJ there considered. Austin’s case, to which I have referred (in para [25] above), was contained in the bundle of authorities before the court, but neither it, nor the underlying jurisprudence of which Albert v. Lavin [1982] AC 546 is perhaps the leading exemplar, were relied upon on behalf of the respondent for the principle that a police officer (or a member of the public) may restrain someone who is reasonably believed to be imminently about to commit a breach of the peace. I agree with what Lord Justice Tomlinson says in his judgment about Albert v. Lavin and the principle for which it stands (recently discussed in R (Laporte) v. Chief Constable of Gloucestershire Constabulary [2006] UKHL 55, [2007] 2 AC 105, as well as in Austin’s case). However, PC Adams did not present evidence upon which a submission based upon Albert v. Lavin could have been supported, and in any event the respondent’s case was not argued at trial, or on appeal, in this way.[33]In sum, I would hold that Mr Walker was unlawfully imprisoned in the doorway by PC Adams for that brief period, even if such detention might in the circumstances be called “technical”, an expression used in Kenlin v. Gardiner where Winn LJ and Lord Parker CJ spoke of a “technical assault” (at 519D and 520D).

Was Mr Walker’s reaction a reasonable and proportionate exercise in self-defence?

[34]The judge found that it was not. It seems to me that although it might have been possible to conclude otherwise, and, on behalf of Mr Walker, Mr Anthony Metzer QC strongly argued that the judge had erred, reminding us that in circumstances such as these self-defence cannot be judged to a nicety, nevertheless it would be wrong for this court, which has not heard or seen the witnesses, to reverse the judge’s decision on such a point. In Shah Moses LJ pointed out that, if the charge had been one of common assault, there would have been a question in that case as to whether the defendant’s violent reaction would have been reasonable: as it was the appeal had to be allowed from a conviction of assault on a police officer in the execution of his duty. There were several alternatives open to Mr Walker short of violence to emphasise that he did not want to speak to PC Adams: but Mr Walker resorted directly to threats and to actual violence for the very reason that he was, contrary to his case and his evidence, already angry and aggressive.[35]I would therefore decline to revisit the judge’s findings on this issue.

Was the purported arrest for “public order” a valid arrest within section 28(3) of PACE?

[36]Mr Metzer’s first point under this issue was that the arrest was unlawful because PC Adams should not have been believed when he said that he had given as his reason “public order” and was thinking of section 5 when he arrested Mr Walker just prior to the outbreak of the fight. Mr Metzer made that submission because back at the police station the custody sergeant had recorded “affray, assault police officer” as the grounds for arrest; in his interview, Mr Walker was told that he had been arrested for “a matter of assault on police”; and at the magistrates’ court PC Adams was recorded as referring to arresting him for “breach of the peace”.[37]However, in his evidence, PC Adams said that the custody sergeant’s entry was because, at the police station, after the fight, he, PC Adams, had explained the whole course of events to the sergeant, including mentioning “affray”, and it was in those circumstances that the sergeant made the entry he did. As for the magistrates’ court, PC Adams said that he did not say what is recorded in the clerk’s notes about breach of the peace. Moreover at a later stage of the clerk’s notes PC Adams is recorded as saying “I arrested for public order rather than assault police as assault police does not get followed up”.[38]However, all these points were before the judge. PC Adams’ general credibility was attacked, but upheld in full by the judge. I do not feel in any way able to go behind the judge’s finding that “PC Adams arrested the claimant for a public order offence and I am quite sure that he had section 5 in mind” (at para [121]). Mr Metzer submits that the finding was perverse, but it is impossible to say that it was in circumstances where: PC Adams gave evidence that he arrested for public order and had section 5 in mind; PC Adams’ credibility was fully accepted; the custody sergeant’s record, following the fight, mentions the more serious public order offence of affray; and the clerk at the magistrates’ court recorded PC Adams as saying (inter alia) that he arrested for public order.[39]Mr Metzer’s second point was that, even so, what was found to have been said did not amount to an adequate performance of the requirements of section 28(3) of PACE. In this connection he cited Taylor v. Chief Constable of Thames Valley Police [2004] EWCA Civ 858, [2004] 1 WLR 3155 for the test there set out by Clarke LJ:
“[26] In the light of all the authorities I would hold that the modern approach to the application of section 28(3) is that set out in the judgment in Fox v UK (1991) 13 EHRR 157 at 170 (para 40). The question is thus whether, having regard to all the circumstances of the particular case, the person arrested was told in simple, non-technical language that he could understand, the essential legal and factual grounds for his arrest. In the light of the case law as it has developed I doubt whether it will in future be necessary or desirable to consider the cases in any detail, or perhaps at all. It seems to me that in the vast majority of cases it will be sufficient to ask the question posed by the European Court of Human Rights.”
[40]In that case it was held that it was sufficient compliance with that test to tell a boy of 10 that he was being arrested, on a later occasion, for “violent disorder” on a previous occasion, the place and date of which were stated, when it would have been obvious to the boy that what was being referred to was his conduct of throwing stones on that earlier occasion. Fox v. UK was concerned with the provision of article 5(2) of the ECHR which provides:
“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him”
. Sedley LJ in his judgment added this:
“[58] The practical reasons historically given by our courts for the requirement which is reflected in art 5(2) have a good deal to do with giving the suspect an immediate opportunity of explanation or self-exculpation. With PACE procedures which for good reason discourage dialogue before interview, this is less important than perhaps it was. The real underpinning of the convention right is the simple one of respect for the dignity of the individual: if the state is taking away your liberty, you are entitled to know why… [60] Approaching the first question in this light, I agree with Clarke LJ that the words ‘violent disorder’ are both legally and factually an adequate description of the material offence. This will not always be so: the legal names of some crimes are not self-explanatory. And, although not without some hesitation, I agree that they are words which would convey to a ten-year-old enough of what the offence involved to meet the purpose of PACE and the convention.”
[41]In the present case, Mr Metzer submits that the words “public order” would have been insufficient information, particularly in circumstances where Mr Walker might not have known whether what was being referred to was his conduct vis à vis PC Adams or vis à vis Ms Lecky. He submitted that “public order” is not a legally and factually adequate description of the material offence or ground of arrest. What was required was something like “disorderly conduct”.[42]Mr Ley Morgan addressed himself to the particular facts of the case. He pointed out that PC Adams had warned Mr Walker twice to calm down (he was shouting and swearing) or he would risk being arrested. Those warnings were ignored, and Mr Walker continued to shout abuse, and then threatened to assault and in fact assaulted the officer. He was arrested within seconds of these events. Mr Walker could have had no doubt that he was being arrested for his conduct immediately before the arrest, and in the circumstances “public order” was enough. On the evidence, PC Adams would have said more, but for the outbreak of the fight.[43]My mind has wavered on this, because “public order” can denote a wide variety of offences, some much more serious than others: see the 1986 Act. Section 5, let us say “disorderly conduct”, is a merely summary offence, unlike other offences in the Act. However, as Clarke LJ said in Taylor at para [35] – “Each case depends upon its own facts. It has never been the law that the arrested person must be given detailed particulars of the case against him. He must be told why he is being arrested.” In the particular circumstances of this case Mr Walker must have been fully aware that he was being arrested for his conduct in the face of PC Adams and that this was regarded as being a public order offence. It seems to me that that is here a legally and factually adequate explanation of the reason for his arrest. Although in some situations legal labels may matter more than in others, I do not think that the particular legal label of a particular offence matters so much if the arrested person knows that he is being arrested for the conduct he has immediately carried out, a fortiori in the face of the arresting officer, and after warnings that such conduct may lead to his arrest.

Conclusion

[44]In sum, I would allow Mr Walker’s appeal on the first issue, and dismiss it on issues two and three. It follows that Mr Walker is entitled to damages for only the brief and “technical” imprisonment immediately before his own unlawful violence and initial arrest. The judge said that he would have awarded a nominal £5 for such false imprisonment were he wrong on the first point. Mr Metzer does not seek to reopen that (or any of the other obiter quantum findings of the judge). £5 was the nominal amount which would have been awarded by the trial judge, Tugendhat J, to Ms Austin in Austin’s case, if there the imprisonment could not have been justified by the police (see the court of appeal judgment at para [118], referring to Tugendhat J’s judgment at [2005] HRLR 647 at para [596]; but this court did not have to deal with the question of damages). I would observe that Ms Austin was a lawful demonstrator, with a baby, and was detained for a lengthy period, and her case was therefore a much stronger case in terms of quantum than Mr Walker’s).[45]Mr Walker is therefore entitled to judgment for £5 on his first ground, but otherwise his appeal is dismissed.

Lord Justice Tomlinson :

[46]I agree. Mr Walker’s conduct attracts no sympathy but that is of course often the way when a fundamental constitutional principle is at stake. The detention was indeed trivial, but that can and should be reflected in the measure of damages and does not render lawful that which was unlawful. The judge’s assessment of £5.00 as the appropriate figure was I think generous to Mr Walker, but there is no appeal against that assessment.[47]It may be thought that our decision will inhibit sensible policing. I sincerely hope that that is not the case. It is worth reminding ourselves of the powers and duties of the police. Archbold 2014 paragraph 19-329 begins:- “It is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime, or from protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least these, and would further include the duty to detect crime and bring an offender to justice . . .” Furthermore, as stated in Archbold 2014 at paragraph 19-429:- “Every citizen (whether policeman or not) in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed, has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will short of arresting him: Albert v Lavin [1982] AC 546, HL.”[48]PC Adams, in his witness statement of 11 July 2012, said this:- “When we arrived at the incident I heard Ms Lecky allege that the claimant had punched her. I therefore had reasonable grounds to suspect that the claimant may have committed an arrestable offence. However, I have dealt with numerous ‘domestic’ cases and know that ‘in the heat of the moment’ people frequently make allegations about their partner which they subsequently withdraw or refuse to substantiate. I therefore felt it sensible to make some very brief enquiries before telling the claimant he was under arrest for assaulting Ms Lecky. By doing this I would, potentially, avoid arresting him and taking him to the police station with all the inconvenience that would have caused him. My enquiries would have taken a matter of seconds.” That might be thought to represent sensible policing, and it is unfortunate that it in fact gave rise to a trivial but nonetheless unlawful detention.[49]Very often where police officers are called to a domestic dispute in the middle of the night or to a brawl outside a city centre pub or club their first duty may be to calm everyone down. Indeed it is notable here that PC Adams’ first words to Mr Walker were “Calm down mate or you will end up getting arrested”. Given Mr Walker’s agitated and irate state and what PC Adams thought it necessary to say to him, it might well have been possible to suggest that PC Adams reasonably apprehended an imminent breach of the peace, in the shape not of a repetition of the blow to Ms Lecky but an assault upon himself. The case for the Commissioner was however, for whatever reason, never argued in that way, either before the judge or before us. We must decide the case upon the basis of the arguments deployed before us, and for the reasons explained by my Lord we are driven to the conclusion that there was here an unlawful detention. I do not think that there will be many cases in which police officers in these difficult situations are at risk of such a finding, but the unusual facts here combined with the manner in which the case was argued throughout combined to produce one of those rare cases. Lord Justice Rimer :[50]I agree with both judgments. Costs 51.

Lord Justice Tomlinson :

[1]This is the ruling of the court.[2]We have received full and helpful submission on costs from both parties. In a case like the present it is no surprise that the parties' positions are diametrically opposed. The Appellant contends that he should be awarded 67% of the costs of the action, including the trial, and 100% of the costs of the appeal. The Respondent seeks to uphold the award of costs in his favour by the judge below, or contends for only a 5% reduction. As for the appeal, the Respondent again contends for an award of costs in his favour, whilst recognising that the Appellant's limited success might tell in favour of some modest reduction in his entitlement of not more than 25%. However, the Respondent also recognises that the court may be minded to make no order for costs in respect of the appeal.[3]We deal first with the costs of the action, including the trial. Had the judge correctly applied the law as we have held it to be, the Appellant would at trial have established that he had been unlawfully detained and thus entitled to damages for false imprisonment. We have described his victory as the establishment of a fundamental constitutional principle. The damages awarded were however nominal and the Appellant did not on appeal suggest that there should have been a greater award. The Appellant points to his Notice to Admit Facts dated 30 April 2013 and is able to say that the Respondent could have conceded the principle and offered a suitable sum by way of compensation in advance of the trial, but chose not to do so. We doubt however that an offer of £5 for false imprisonment would have been accepted, not least because it is plain that the Appellant would have pressed his other two causes of action, assault and malicious prosecution, in respect of which he sought exemplary damages to reflect the distress, humiliation and anxiety which he had allegedly been occasioned. There can be no doubt that, looked at in the round, the Appellant's action was a resounding failure, mitigated only by his establishing a trivial detention which might properly be characterised as "technical". The judge made serious criticisms of the Appellant's aggressive and violent behaviour during the course of the incident and disbelieved his evidence at trial.[4]As the Appellant had to take the matter to trial in order to establish that he had been unlawfully detained by a police officer, even for a trifling period of time, we do not think it appropriate that he should be directed to pay any part of the Respondent's costs of the action. But equally we do not consider that the Appellant, who received £5 by way of damages following a four day trial in which he sought exemplary damages of the order of £25,000 – see the Claim Form – can properly be described in unqualified terms as the successful party. To bring an action of this nature to recover £5 was unjustified and disproportionate. The appropriate order as to the costs of the action is in our judgment that there should be no order.[5]We turn next to the costs of the appeal. Here the Appellant has succeeded on the constitutional principle, but his compensatory award is nominal. We can understand the reluctance of the Respondent to concede the point, on which he had succeeded below, but on the basis of the judge's findings of fact we have concluded that the Appellant was right on this point and the Respondent wrong. The Respondent could have secured a measure of costs protection by a Parr 36 offer of £5 and we are surprised that that course was not taken. The Appellant would then have been at real risk as to costs had he proceeded with the appeal. The unlawful detention point took up the greater part of the hearing and must have accounted for a great deal of the time spent in preparing skeleton arguments and so forth. We regard the Appellant's unreasonable conduct as being of less relevance in our consideration of the costs of the appeal, although he did of course unsuccessfully invite us to revisit the judge's findings as to his unreasonable response to the unlawful detention.[6]We have concluded that the Appellant's success on the constitutional principle, albeit it profited him little, ought to be reflected in our costs order as to the appeal. In the circumstances, the appropriate order is, we think, that the Appellant should recover 25% of his costs of the appeal.[7]We invite counsel to agree a form of Order which reflects our decision.

Cited in 7 later judgments