Ali v Heart of England NHS Foundation Trust & Anor [2018] EWHC 591 (Ch)

[2018] EWHC 591 (Ch)

Case No BM70097A

IN THE HIGH COURT OF JUSTICE

Venue BIRMINGHAM DISTRICT REGISTRY and APPEAL CENTRE, ON APPEAL FROM THE COUNTY COURT AT BIRMINGHAM

ORDER OF UPPER TRIBUNAL JUDGE ALLEN 10 MAY 2017

CLAIM NO. B10YJ213

Venue Birmingham Civil Justice Centre

The Priory Courts

Venue 33 Bull Street, Birmingham

Date 21/03/2018

Before

THE HON. MR JUSTICE BIRSS

Between

Abdulrazak AliClaimant and Appellant

Mr Ramby De Mello (instructed by Murria Solicitors) for Appellant

Mr Gurion Taussig (instructed by G4S Legal Dept) for Respondent

Hearing Hearing dates: 14th March 2018

Judgment Approved

Mr Justice Birss :

[1]This is an appeal from the judgment of Upper Tribunal Judge Allen sitting in the county court sitting in Birmingham. The claimant/appellant Mr Ali claimed damages for negligence against both defendants and claimed damages for false imprisonment against the second defendant (G4S). After a three day trial from 28th February to 2nd March 2017, the judge gave judgment on 27th April 2017, dismissing both claims. The appellant only sought to appeal the dismissal of the false imprisonment claim against the second defendant G4S. Permission to appeal was granted by Morris J on 7th July 2017.

[2]The circumstances are as follows. Mr Ali has a daughter A. At the relevant time A was three years old. On 23rd April 2012 her parents were concerned about A’s health and took her to the GP, who advised that she should be taken to hospital straight away with suspected pneumonia. Mr Ali and his wife took A to hospital, arriving at 12:30pm. Mr Ali had to leave the hospital for a period of time. When he returned later in the afternoon, A had been at the hospital for some hours. It seemed to Mr and Mrs Ali that the medical staff were not monitoring or treating their daughter. Mr Ali wished to remove his daughter from the hospital. The nurse Mr McClelland advised him not to because A needed to remain in hospital to be monitored and treated if necessary. Mr Ali persisted. In accordance with the hospital’s procedures in place Mr McClelland called the hospital security staff, employed by G4S, and explained what was happening. The security staff tried to persuade Mr Ali to allow A to remain in hospital but to no avail. Mr and Mrs Ali started leaving the hospital car park with A in their car. A member of the hospital security staff, Mr Akram, telephoned the police. One of the things Mr Akram told the police was that he had been told by a warder that there was a “child protection order on” the daughter. That was wrong. However the phrase “child protection order” could be interpreted, there was no such thing in place regarding A. The police arrived and stopped Mr Ali’s car. They arrested Mr Ali on suspicion of kidnapping and detained him. They also arrested Mrs Ali but she was released. The child A was returned to hospital. The police discovered that there was no “child protection order” relating to A in place. They de-arrested Mr Ali for kidnap and re-arrested him for neglect instead. Mr Ali was detained for about 20 hours. He was then released without charge. Mr Ali brought this action against the NHS trust and G4S.

[3]The judge heard evidence from Mr Ali, Mr McClelland, Mr Akram, another G4S security office Mr Wall and from Ms Kilcoyne the head of safeguarding at the hospital. Also in evidence were the police custody record and incident log and a witness statement from the relevant police officer, PC Weller. PC Weller was not cross-examined. The judge fully considered that evidence in paragraphs 4 to 57 of his judgment.

[4]The hospital review documents for A recorded that there was “breathing fast, cough, vomiting”, a differential diagnosis recorded “viral induced wheeze” and oxygen levels were noted as low. The judge found (at paragraph 85) that the medical staff were fully justified in having concerns about Mr Ali’s daughter’s health and that the relevant policies were applied: in Mr McClelland speaking to Mr and Mrs Ali and trying to dissuade them from removing the child and in Mr McClelland contacting security so that the problem might be averted and the need to contact the police and social services avoided.

[5]The judge held (paragraph 80) that it was essentially Mr Ali’s decision to take his daughter back to the surgery and that he was aggressive when speaking to Mr McClelland. The judge also held that it was not right that his daughter had not been monitored in Mr Ali’s absence. At least some of the monitoring which did take place might not have been observable by Mrs Ali. The judge found that Mr Ali took his daughter away from hospital against medical advice and due to stress and tiredness. He found that Mr Ali made a significant misjudgement to take his daughter away; it put her at unnecessary risk. The judge found that Mr Ali was essentially an honest man who made a mistake in judgment which was the trigger of subsequent events.

[6]A difficult question of fact which the judge had to decide was who was the origin of the entirely wrong statement that there was a “child protection order” in existence concerning A. It had either come from Mr McClelland or from Mr Akram. The judge decided (at paragraphs 81-84) that it had not come from Mr McClelland but was a mistake by Mr Akram. He noted that it was common ground that there was no question of bad faith in this case.

[7]The transcript of the 999 call by Mr Akram was available and the judge set it out in paragraph 53 of the judgment. Given its significance to this appeal, I will set it out too. It is:

“Yes this is security at Heartlands Hospital, one of our warders reported a parent taking a child off the ward that’s got a child protection order on it. Operator: Right okay and the mother? Caller: And the mother yeah the mother and the father taken the child off the site. Operator: They’ve tried to take the child do you know how old the child is Caller: 3 years old. Operator: Is it a male or female child do you know. Caller: Female Operator: 3 year old female Caller: Yes Operator: Okay which ward are they on Caller: They’re in our visitors’ car park at the moment trying to leave the hospital premises. Operator: Right so they’re now on the visitors’ car park Caller: They’re in a motor vehicle Operator: Can you see the reg Caller: Yes, it’s VU11 Lima Oscar Juliet Operator: What sort of car Caller: It’s a white Toyota Operator And it’s the Heartlands Caller: Yes as you drive in it’s the first car park on the right-hand side Operator: Ok and what is your name Sir Caller: Akram AKRAM Operator: And you’re on 0121 424 2001 Caller: That’s right yeah Operator: Okay we’ll get someone on there all right bye.”

Operator: Right okay and the mother? Operator: They’ve tried to take the child do you know how old the child is Caller: Female Operator: 3 year old female Caller: Yes Operator: Okay which ward are they on Operator: Right so they’re now on the visitors’ car park Caller: They’re in a motor vehicle Operator: Can you see the reg Caller: Yes, it’s VU11 Lima Oscar Juliet Operator: What sort of car Caller: It’s a white Toyota Operator And it’s the Heartlands Caller: Yes as you drive in it’s the first car park on the right-hand side Operator: Ok and what is your name Sir Caller: Akram AKRAM Operator: And you’re on 0121 424 2001 Caller: That’s right yeah Operator: Okay we’ll get someone on there all right bye.”

Caller: That’s right yeah

[8]The agreed chronology puts the phone call at 17:12 and the arrest at 17:21. The content of the police custody log, incident log, and investigation log were summarised by

the judge at paragraphs 50, 52 and 54 as follows:

“50. The police custody record is exhibited to Mr Ali’s statement. It notes under “circumstances of arrest” that officers were called to Heartlands Hospital by staff members’ stating that Mr Ali and his wife had kidnapped a 3 year old female. Staff stated they were the parents of the child and there was a child protection order in place whereby they cannot contact the child. … 52. The police incident log notes among other things police being informed at 1800 hours that there was no protection order. This was confirmed and clarified at 18:29 but the medical staff said that the child required oxygen overnight and against medical advice the parents had removed the child and if she did not receive oxygen there was a serious risk to her health. The officer advised that the child should be placed on the PPO and the parents arrested for neglect. … 54 In the police investigation log it is noted that it appears the whole incident may have been misconstrued by staff members in the hospital call centre (operator). It is said that it appears from comments made by the father that the parents had been waiting for approximately six hours in the hospital. They became impatient with the delay and stated they were going to see their GP in the morning. The staff somehow have thought the child is subject of a protection order and have called the incident and accordingly it now appears that the child may not be subject to a protection order but this will need confirming by PPU.”

[9]PC Weller’s witness statement was summarised by

the judge at paragraph 56:

“56 PC Weller in his witness statement recorded what was said in the emergency call and set out above. He identified the car and blocked it. He shouted for the driver to open the door and he looked at him and the vehicle lunged forward. This concerned PC Weller, who therefore drew his baton and held it at the high carry position with the intention of smashing the driver’s window if he continued to ignore his instructions. He continued to shout to the driver to open the door and he eventually complied with these instructions. Her told the driver to get on the floor but he continued to ignore him and remained in his seat and he could see there was still a potential threat of the driver driving off or PC Weller being assaulted so he pulled him out of the car and put him on the ground and he was detained and consequently arrested.”

[10]Even though the judge’s finding about the origin of the reference to a “child protection order” meant that the first defendant could not be liable on any view, the judge considered whether a relevant duty of care should be imposed on the first defendant, the NHS Trust, and held that it should not be (paragraph 88-92). The judge then addressed the question of a duty of care owed by the second defendant G4S and held that no duty should be imposed on them either (at paragraphs 93-95). Therefore the negligence claim failed. It has not been appealed.

[11]Turning to the false imprisonment claim, the judge analysed the law on this at paragraphs 75 to 78. The judge referred to the leading case which is Davidson v Chief Constable of North Wales

[1994] 2 All ER 597

(Court of Appeal Bingham MR, Staughton and Waite LJJ) and to the judgment of Sharp J in Ahmed v Shafique

[2009] EWHC 618 (QB)

. The test applied by the judge was stated by him at paragraph 96 as follows:

“96. The law here is clear. As set out in Davidson which I have quoted above, false imprisonment will only lie in a case such as this where a person in Mr Akram’s position goes beyond merely giving information to a properly constituted authority on which that authority could act or not as it sees fit or whether he himself was the instigator, promoter and active inciter of the arrest and imprisonment and for his employer through him to be liable his actions are required to have gone beyond the giving of information to the police officers for them to take such action as they thought fit and that it amounted to some direction or procuring or direct request or direct encouragement that they should act by arresting Mr Ali. […] ”

The judge then continued:

“ […] [Counsel for Mr Ali] argued that the facts in the case are much more akin to those in Ahmed than those in Davidson. Among other things she argued that though no overt request for an arrest was made this was plainly the intention and expectation in reporting the information via 999, and the evidence of PC Weller confirmed that no separate evaluation of the information was conducted as in Davidson either prior to or at the time of the arrest. She also argued that the fact that the information indicated an emergency situation essentially precluded the exercise of an independent judgment by the police. In acting solely and immediately on the information received from Mr Akram she argues that no conclusion could be drawn but that the police were acting under the direction of the second defendant. 97. I disagree with this submission. I have set out above the information that was given by Mr Akram to the police as recorded on the police log. In my view it is clear that all he did was give information to the police on which they could act or not as they saw fit. There was nothing in the information given by him that amounted to a direction or a procuring or a direct request or direct encouragement that the police should act by arresting Mr Ali. In Davidson the police acted on the information given to them by the store detective, she identified H and the plaintiff and they were told that they were being arrested on suspicion of shoplifting. There was in that case as in this, an absence of any words or actions going beyond the simple provision of information for the police to decide what action they would take on it. Accordingly I conclude that the claim of false imprisonment is not made out. […] 100. The final point I address is the matter raised by Ms Ayling on causation.. She argued that Mr Ali would have been detained and arrested in any event on the basis of neglect and therefore he would not have suffered loss involving more than nominal damages in any event. In the circumstances I do not consider it is necessary to go into this point. We have no evidence from the police as to what their response would have been had the correct facts been transmitted to them. No doubt they would at least have wished to interview Mr Ali and might well have detained him, but whether they would have acted in the manner in which they did can only be a matter of speculation. In any event the point is academic and does not need to be addressed.”

[13]The appeal is advanced on two grounds. They are both focussed on paragraph 97 of the judgment. The first is that the judge erred in law in holding that G4S was not liable for false imprisonment and concluding that there was nothing in the information given by Mr Akram to the police which amounted to a direction or procuring or direct request or direct encouragement that the police should act by arresting the appellant. The second ground is that the judge failed to give adequate reasons for his decision that there was an absence of words or actions going beyond the simple provision of information for the police to decide what action they would take on it.

[14]The respondent supports the judge, contending that he was right for the reasons he gave.

[15]As counsel for the appellant submitted the two appeal grounds shade into one another. Counsel accepted that the law distinguishes between a “mere witness” and someone responsible for the imprisonment. A mere witness, i.e. someone who merely gives information to the proper authority on which that authority could act or not, is not liable for false imprisonment even if the information provided is wrong. To be liable one has to go further than that.

[16]Counsel for the appellant relied on passages from the judgment of Warby J in Barkhuysen v Hamilton

[2016] EWHC 2858 (QB)

. What counsel’s main submission amounts to is that what is required in every case is an assessment of the causal impact of the complainant’s conduct (c.f. Barkhuysen paragraph 140). So the submission in this appeal is that it was not enough for the judge to focus on the information given by Mr Akram. The judge had to go further and consider what impact that information actually had on PC Weller and how the officer understood it. The second ground of the appeal arises because the judge did not do that. Counsel submitted that if the matter had been considered then the judge would have decided that this was a case in which the police officer felt compelled to act – leading to Mr Ali’s arrest and imprisonment. The submission was that this was not a situation in which the police officer in fact exercised any discretion to “act or not” as the officer saw fit.

[17]In this respect counsel referred to paragraph 141 of Barkhuysen in which Warby J found that the defendant in that case was responsible for the false imprisonment because she placed the police in a position where it was their duty to act as they did. Counsel also referred to paragraph 89 of the judgment of Sharp J in Ahmed in which the judge there noted that there was no evidence the police made any real investigation or exercised any independent judgment. They simply relied on the say so of the defendants and the defendants’ repetition of the complaint they had already made.

[18]So in this case, counsel submitted that the correct inference to draw was that from the police officer’s point of view, Mr Akram had “made a charge on which it becomes the duty of the constable to act”. The quoted words come from an extract from Clerk & Lindsell on Torts (21st Ed) referred to in paragraph 141 of Barkhuysen. In support of this counsel referred to a passage from the judgment of District Judge Davies who rejected a strike out application in this action. At paragraph 9 the District Judge said:

“There is no order in law known as a ‘child protection order.’ Whether what was intended to be communicated as an interim care order, an emergency protection order or any other form, for the purposes of the hearing, no counsel sought to argue that the meaning of the words ‘child protection order’ could be taken to mean anything other than an order preventing [Mr Ali’s daughter] from being removed from the hospital or being placed in the care of her parents.”

[19]Counsel for the appellant also advanced a fall back submission based on what was called in Barkhuysen the “narrower view” (paragraph 142). He submitted that although in form the words used by Mr Akram on the 999 call did not include an explicit request to arrest Mr Ali, in substance and in all the circumstances, that is what the words meant and so Mr Akram’s employer was responsible for the arrest.

[20]Counsel for the respondent submitted that the relevant principle of law is that set out in Davidson; and that, at least in the context of this case, the other decisions referred to by the appellant, including the ones cited above and in addition R v Hackney London Borough Council

[2011] EWCA Civ 4

and R (Rawlinson & Hunter Trustee) v Central Criminal Court

[2012] EWHC 2254 (Admin)

, should be seen simply as examples of the application of that principle. Counsel also submitted that on the facts of this case the judge did not have to examine what the police may or may not have thought in any more depth than he actually did.

Assessment

[21]As noted by Sharp J in Ahmed (at paragraphs 75-76) the tort of false or wrongful imprisonment is a trespass to the person (one of the three forms which such a trespass may take - the other two being assault and battery): “The gist of the tort is the mere imprisonment. The claimant need not prove that the imprisonment was unlawful or malicious, but establishes a prima facie case if he was imprisoned by the defendant; the onus then lies on the defendant of proving a justification.” (see para 442 of Vol. 45(2) of Halsbury's Laws (Tort) and also Dallison at 370).

[22]However as Bingham MR explains in Davidson in the paragraph bridging p600 to p601, one of the problems in that case was that the defendant was not the person who actually imprisoned (or arrested) the claimant and, what is more, the police constables had reasonable suspicion and therefore their action was proper. If the defendant was liable it could only be through the police constables as the defendant’s agents or, as the appellant in that case preferred to put it, as persons whom the defendant procured to act as they did.

[23]The same is true in this case. This claim is not against the police and it is no part of the appellant’s case on this appeal that PC Weller himself acted wrongly in arresting Mr Ali, given what the police had been told. In the 999 call Mr Akram provided the police with the information which put in train a chain of events which led to the arrest. Therefore like Davidson and the other cited cases, this case is concerned with a kind of accessory liability in tort. The question is - how does the law determine liability?

[24]In my judgment the answer was given in Davidson by Bingham MR in the passage from 604 h to 605 b “Accordingly, as it would seem to me, the question which arose for the decision of the learned judge in this case was whether there was information properly to be considered by the jury as to whether what Mrs Yates did went beyond laying information before police officers for them to take such action as they thought fit and amounted to some direction, or procuring, or direct request, or direct encouragement that they should act by way of arresting these defendants. He decided that there was no evidence which went beyond the giving of information. Certainly there was no express request. Certainly there was no encouragement. Certainly there was no discussion of any kind as to which action the police officers should take. The crux of Mr Clover’s submission is that this case is different from the case in which an ordinary member of the public gives information to a police officer because this is a store detective, somebody better informed than an ordinary member of the public as to what was likely to happen upon making a complaint, and somebody with a very clear intention and expectation as to what would happen. No doubt the store detective did have an intention and expectation as to what would happen. The fact remains that the learned judge to my mind quite correctly held that to what Mrs Yates did and said in no way went beyond the mere giving of information, leaving it to the officers to exercise a discretion which on their unchallenged evidence they did as to whether they should take any action or not.”

[25]Also relevant is the passage from Staughton LJ’s concurring judgment at p605 (g-j) “In those circumstances, like Sir Thomas Bingham MR, I would refer to the passage in the judgment of Barry J in Pike and Waldrum & Peninsular & Oriental Stream Navigtation Company

[1952] 1 Lloyd’s Rep 431

at 454:

‘The authorities cited to me, to which I need not refer in detail, establish quite clearly to my mind that he person who requests a police officer to take some other person into custody may be liable to an action for false imprisonment; not so if he merely gives information upon which the constable decides to make an arrest.’ “Whether a request by itself is sufficient to make a person liable does not arise in this case. What is clear in the passage I have read is that merely giving information is not enough. That does not give rise to false imprisonment. Mrs Yates did no more than that. However much one may look at evidence and analyse what possible consequences might or would arise from the information which she gave, the fact is that all she did was to give the information.” ‘The authorities cited to me, to which I need not refer in detail, establish quite clearly to my mind that he person who requests a police officer to take some other person into custody may be liable to an action for false imprisonment; not so if he merely gives information upon which the constable decides to make an arrest.’

[26]I accept the respondent’s submission that these are the statements of the applicable principle to be applied. The other cases illuminate the application of the principle to particular facts but they do not alter the principle itself.

[27]The principle has the important consequence that not every case in which wrong information which has been given to the police which has led to an arrest will produce a conclusion that someone is liable to the claimant who has been arrested for false imprisonment. Being responsible for giving wrong information to the police – as the store detective in Davidson clearly was - is not the same thing as being responsible for the arrest.

[28]Counsel for the respondent emphasised the point made in the second paragraph of the passage from Bingham MR’s judgment (quoted above) which recognised that the defendant no doubt did have an intention and expectation that an arrest would follow from what she had told the police. Nevertheless no liability followed because what she did and said did not go beyond the mere giving of information. A similar point was made at the end of the quoted passage from Staughton LJ’s judgment.

[29]Part of the submission of counsel for the appellant is that it was necessary to consider what PC Weller actually thought and whether the officer felt able to decide whether “to act or not” or whether the officer felt he had no discretion to exercise and had a duty to arrest Mr Ali. Based on this submission, only if the police officer felt he or she still had a discretion to act and then did exercise the discretion in deciding to arrest and detain the claimant, would the defendant avoid liability. I do not believe that is what the Court decided in Davidson.

[30]Since in Davidson the police witnesses had given clear evidence that they exercised their own judgment and took responsibility for the arrest, that precluded a finding that they were the store detective’s agent or that the store detective could have procured the arrest. However that does not mean that in every case it is necessary to call the police officer(s) as witnesses to make that good because in the end what matters is whether the defendant merely gave the police information or went further and procured the arrest.

[31]I believe Sharp J was concerned about a similar problem in Ahmed. At paragraphs 82 to 86, Sharp J considered and rejected a submission very like the one in this case. The submission was that by applying Sallow v Griffiths

[2001] FSR 15

and Martin v Watson

[1996] 1 AC 74

to false imprisonment, the court considering a false imprisonment allegation had to ask whether the circumstances were such that the facts relating to the alleged offence can be within the knowledge only of the complainant so that it becomes virtually impossible for the police officer to exercise any independent discretion or judgment and thus if an arrest and detention is instituted by the police, the proper view of the matter is that the detention had been procured by the complainant. The judge rejected that submission because Sallow and Martin were concerned with malicious abuse of the legal process, not with false imprisonment. The key difference between these two torts is that the former requires malice and the latter does not. So Sharp J said: “85. No reference was made either in Martin or in Sallow to Davidson, or the authorities considered by the Court of Appeal in the latter case. This is not surprising as the torts of false arrest and the malicious abuse of process torts have important differences as I have mentioned above, in particular, that the claimant in the respect of the latter is obliged to establish as part of his cause of action both that the defendant was malicious, and lack of reasonable and probable cause. The Claimant in a claim for false arrest on the other hand, has to establish neither. There are, so it seems to me potentially significant implications in those circumstances for lowering the threshold by which a private individual can become liable for false arrest by giving information to the police, which Mr Davies does not address in argument.”86. On one view, it might be thought that the state of mind of the informant should be irrelevant to the (apparently) objective question as to whether they had, or had not procured an arrest. But there are obviously sound reasons why a malicious informant who knowingly gives false information to the police (which they are not in a position to check) with the intention of bringing about an innocent person’s prosecution and conviction should be held to account. Similarly, it might be thought, if an individual maliciously procures an arrest, as there was a finding the defendants had done in Sallow (whether an arrest is judicial, or even ministerial: see para 16-15 note 62 Clerk & Lindsell). The position is otherwise it seems to me in a case where a person (such as the store detective in Davidson) gives information in good faith which is merely mistaken. Whilst the Claimant does not accept the bona fides of the Defendants in these proceedings, nonetheless it is not suggested on his behalf, that he must prove malice in order to establish a prima facie case.

87. It seems to me therefore the test I am bound to apply in determining whether the Defendants procured the Claimant’s arrest is that identified in Davidson. Were the Defendants responsible for the Claimant’s arrest by directing or requesting, or directly encouraging the officers to arrest the Claimant; and in that respect did they go beyond laying information before police officers for them to take such action as they saw fit?

[32]I respectfully agree with Sharp J. The point is that while malice is not a necessary element in the tort of false imprisonment, if a person deliberately invents a very serious false allegation to which they say they are a witness and which the police would be in no position to check and puts that allegation to the police so that the police officer’s discretion is effectively removed, therefore procuring the claimant’s arrest, that person commits the tort because in those circumstances they are responsible for the arrest. Such a person has gone beyond laying information before police officers for them to act as they saw fit. On the other hand a person who merely gives information in good faith albeit mistakenly does not commit the tort. To be liable they have to go beyond that by directing, requesting or directly encouraging the officers to arrest the claimant, as a result of which the prosecuting authority could be said acting as their agent or whom the defendant procured to act as they did.

[33]On the facts in Ahmed, the defendant had told the police that the claimant had obviously stolen the money and that this was a reason for an earlier assault. The critical point was that after the information had been given to the police by the defendant, it was made apparent to the defendant that the claimant would only be arrested if the defendant was prepared to repeat the relevant allegation in the presence of the police (paragraph 89), which the defendant then went ahead and did. This shows that while malice is no part of the tort, the defendant’s state of knowledge can be relevant, depending on the factual circumstances. The defendant knew before he repeated the allegation that there would be no arrest unless he repeated it and that repeating it would cause the arrest. Therefore by taking that step the defendant was procuring the arrest itself and not merely laying information before police officers, and the case was made out.

[34]In Barkhuysen, the defendant invented a lurid and serious allegation which she said she had witnessed and put to the police. On the narrow view of the law considered by the judge (paragraph 142), the defendant was liable because she gave an emotionally charged and on the face of it compelling plea for action to be taken; in substance it was a direct encouragement and procurement of the arrest. The defendant was therefore responsible for the arrest (paragraph 142). That narrow view was sufficient to find against the defendant. It is a long way from the facts of the present case.

[35]Warby J in paragraph 141 of Barkhuysen also found against the defendant based on a wider principle, referring to the passage in Clerk & Lindsell. The submission on the appeal before me is that this wider principle means that if a defendant acting without bad faith merely gives information to the police which is in fact mistaken, one cannot say whether or not the defendant is liable without deciding whether the police felt compelled to act as a result of what they were told or whether the police took responsibility for their decision to arrest the claimant, as the police officers did in Davidson. I do not believe that is the law nor do I believe such a principle can be derived from Barkhuysen given its very different facts. Reasoning arising from a case in which the defendant invented allegations to procure an arrest she desired and intended (see paragraph 144) does not readily transpose to cases in which information was provided without bad faith.

[36]In my judgment the distinction between merely providing information, and going beyond that to establish liability, at least in part, arises from the nature of this type of claim and liability. The essential test is whether what the defendant did had the effect of turning the police into their agent or as someone whom the defendant procured to act as they did. A defendant who merely provides information to the police in good faith is not procuring the claimant’s arrest even if it is practically inevitable that an arrest will follow. If the passage cited from Clerk & Lindsell which is referred to in paragraph 141 of Barkhuysen means something different then I disagree with it but I do not believe that is what the authors were saying. The authors were not seeking to say anything different from Davidson and Ahmed. The sentence is followed by the words:

“But it is quite a different thing if a party simply gives information, and the constable thereupon acts according to his own judgment. In such a case the informer incurs no responsibility in the tort of false imprisonment. The critical test is whether the defendant was ‘responsible for the claimant’s arrest by directing or requesting or directly encouraging the officers to arrest the claimant; and in that respect did they go beyond laying information before police officers for them to take such action as they saw fit.’ [citing Ahmed and Davidson]”

[37]R (M) v Hackney represents another application of the principle in Davidson. The case was about a detention of the claimant under the Mental Health Act 1983 by a hospital trust on the application of an AMHP (approved mental health professional). The local authority was responsible for the actions of the AMHP. The Court of Appeal held that although the hospital trust acted lawfully in detaining the claimant because it received a regular application to do so from the AMHP, the local authority was liable notwithstanding the fact the AMHP had acted in complete good faith. That was because what had happened was that the AMHP had made a written application to detain the claimant (paragraph 38-39). As Toulson LJ observed in paragraph 38, it is difficult to imagine a more direct case of one person wrongfully causing another to detain someone. This does not assist the appellant.

[38]The relevant passage in R (Rawlinson & Hunter) v Central Criminal Court is at paragraphs 226-234. In this section the Divisional Court recognised that to be liable for false imprisonment does not require proof of malice (paragraph 231). What it would require was to prove that the arrest was procured or directly requested by the relevant party (in that case the SFO). This does not assist the appellant either.

[39]Turning to the facts on this appeal, the words used by Mr Akram are set out in the transcript of the 999 call. Mr Akram told the police that someone else (the warders) had reported the relevant information he was giving. The police therefore would understand that the information they were being given was not coming directly from a witness. Mr Akram does not state that he knows the information is true. As the respondent submitted, Mr Akram’s statements are put straightforwardly. The information provided first was the wrong statement about a child protection order. As DJ Davies recognised in the strike out judgment, that information would have had a very significant effect on any police officer and no doubt would make it very likely the officer would take urgent action and, if need be, arrest Mr Ali. The remainder of the information provided was accurate.

[40]Mr Akram did not expressly ask the police to arrest Mr Ali. Nor was it the case, unlike Barkhuysen, that Mr Akram’s words in substance or implicitly amount to such a request. Nor is this case like Ahmed in which the police made clear they would only arrest the claimant if the defendant repeated the accusation in their presence. In my judgment this case is like Davidson, which is what the trial judge rightly decided. The wrong information was a mistake. It was not presented to the police in a manner which could be said to have directly encouraged an arrest. In my judgment the judge applied the right test and arrived at the right answer. What was said amounts to the mere provision of information. Examining how much discretion the police may or may not have felt they had based on what they were told could not assist the claimant. Mr Akram did not make the police his agent nor did he procure Mr Ali’s arrest. This appeal will be dismissed.