ALK & Anor v The Chief Constable of Surrey Police [2025] EWHC 1964 (KB)

[2025] EWHC 1964 (KB)Case No KA-2024-000208
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/07/2025
Before
THE HONOURABLE MR JUSTICE BOURNE
Between
ALK (1) ECN (2)AppellantTHE CHIEF CONSTABLE OF SURREY POLICERespondent
GEORGE MURRAY (instructed by SATCHELL MORAN SOLICITORS) for APPELLANTADAM CLEMENS (instructed by WEIGHTMANS LLP) for RESPONDENTHearing Hearing date: 2 nd July 2025
Approved JudgmentThis judgment was handed down remotely at 2pm on Monday 28 th July by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HONOURABLE MR JUSTICE BOURNE

Introduction and factual background

[1]This is an appeal by the claimants against the decision of HH Judge Simpkiss on 12 April 2024, dismissing their claim after a 5-day trial in January 2024.[2]The claimants, a married couple, are both serving police officers with the Metropolitan Police. Their claim for false imprisonment against Surrey Police arose in the following way, as recorded in the Judge’s findings of fact.[3]The claimants have 3 children who at the relevant time in 2019 were around 6, 14 and 16. The 14-year-old, a boy, is known in these proceedings by the cipher ABD. As the Judge found, he has an unfortunate history of challenging behaviour, with incidents of truanting from school, stealing, lying and making unfounded allegations against his teachers. His mother, the first claimant, discussed these problems with his form tutor at school, who recommended the Focus Youth Centre, where access could be had to the Child and Adolescent Mental Health Services. Arrangements were made for ABD to attend the centre.[4]ABD’s 14th birthday was approaching and his parents arranged a party on the weekend of 9-10 March 2019. During the previous week he was repeatedly late home from school and on one occasion missed a dental appointment. On 8 March 2019 his mother told him that he was to come straight home after school. However, he did not appear for some 2 hours during which time he did not answer his phone. Upon his return, his mother, who had been very worried, told him that she would cancel the party. He stormed off to his room and kicked things around. His mother says that she gave him a “light smack on the left cheek” which “was not hard and did not cause any injury or leave any mark”. His father, the second claimant, was asleep at the time because he was working night shifts. The first claimant woke him up and asked him to sort the situation out.[5]On 9 March 2019, ABD’s father took him to the Focus Youth Centre in the afternoon. When he attended to collect ABD a couple of hours later as arranged, a member of staff said ABD was not ready and asked him to wait in his car. Then, a youth worker came out with ABD and told the second claimant that ABD had said something to them as a result of which they were duty bound to call the police and that there would be a further delay and he would have to wait inside.[6]ABD had told the youth workers that the first claimant had assaulted him at home and the second claimant had done nothing to stop the assault.[7]The second claimant was waiting in a side room at the centre when PC Robinson and PC Havers arrived. They spoke to youth workers and to the second claimant, and their interview with him was recorded on BWV. PC Havers had a separate conversation with ABD which was not recorded. PC Robinson spoke to his Sergeant by telephone. Both officers returned to the side room and arrested the second claimant. He was taken to Salfords Custody Centre where his detention was authorised at 9pm and he was placed in a cell. After consulting a solicitor, he was interviewed. His mobile telephone was not seized but its battery had run out so he could not make any calls.[8]ABD remained at the Focus Youth Centre and was later driven by officers to stay with his grandmother (the first claimant’s mother).[9]Meanwhile, the first claimant was at home, in her sitting room in her pyjamas. At 9.39pm PC Gavin and PC Bell arrived, with DC Hannah and a member of the Emergency Duty Team, Angela Hunt. According to PC Bell’s statement, she and PC Gavin had been “tasked with attending the home address of [the first claimant] to place her under arrest”.[10]BWV footage of what happened was not available at the trial. The Judge found that the first claimant was arrested almost immediately and was told that ABD had alleged that she had assaulted him and caused a swollen lip. The first claimant changed out of her pyjamas while PC Bell remained in the room. She questioned the need for an arrest and suggested that she should be allowed to come to the police station to be interviewed voluntarily under caution. She was allowed to speak to her supervising officer (now an Inspector in the Metropolitan Police) who also spoke to PC Gavin. She handed her phone to PC Gavin and signed an agreement under section 20 of the Children Act 1989 permitting the local authority to provide the children with alternative accommodation if necessary. She was allowed to contact her mother. The children remained at home and the second claimant’s brother came to look after them. The first claimant was taken to Salfords Custody Centre and her detention was authorised at 10.51pm. Although she asked to be allowed to sit in a room, she was placed in a cell. She asked for the Police Federation to be contacted but no-one was able to attend.[11]The second claimant was released at 3.09am having been in detention for 7 hours 32 minutes. He was released “under investigation” without any conditions. He then waited in a holding room (but not under arrest) while the first claimant was interviewed.[12]Between 4.16 and 4.48am the first claimant was interviewed under caution.[13]At 4.54am the first claimant was released from custody and both claimants were driven home. In her case too she was “under investigation” but with no conditions and she was not bailed. She had been detained for 7 hours 15 minutes.[14]While the claimants were under arrest, DC Hannah and Angela Hunt spoke to the eldest child but did not wake the youngest child. They concluded that there was no risk of any harm to either of them and that it would be unnecessarily disruptive to remove them. It was therefore agreed that they should be left at home with a grandparent. The younger sibling was spoken to next day by a Detective Constable and a social worker.[15]ABD was returned to the family home the next day. On 12 March 2019 a Detective Constable visited the family home to tell the claimants that the police would be taking no further action.[16]Both claimants claimed that their arrest was unlawful because it was not necessary, amounting therefore to false imprisonment, battery and trespass. I return to the details of their claim below.[17]HH Judge Simpkiss dismissed the claims and ordered the claimants to pay 70% of the defendant’s costs. The claimants appeal on three grounds relating to liability (“the liability appeal”) and one ground relating to costs (“the costs appeal”). The liability appeal Legal framework

The liability appeal

[18]The police power to arrest without warrant is conferred by section 24 of the Police and Criminal Evidence Act 1984 (“PACE”). That section was substantially amended with effect from 2005. Previously, separate provisions applied to “arrestable” and “non-arrestable” offences respectively. The new section 24 applies to all offences and introduces a new test of necessity.[19]The material parts of the section provide:
“(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it. (3) If an offence has been committed, a constable may arrest without a warrant— (a) anyone who is guilty of the offence; (b) anyone whom he has reasonable grounds for suspecting to be guilty of it. (4) But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question. (5) The reasons are— (a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name); (b) correspondingly as regards the person's address; (c) to prevent the person in question— (i) causing physical injury to himself or any other person; (ii) suffering physical injury; (iii) causing loss of or damage to property; (iv) committing an offence against public decency (subject to subsection (6)); or (v) causing an unlawful obstruction of the highway; (d) to protect a child or other vulnerable person from the person in question; (e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question; (f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.”
[20]There is a Code of Practice, issued under PACE, which applies to the use of the statutory power of arrest (“Code G”). A failure to comply with the provisions of the code does not of itself, without more, render an arrest or detention unlawful although if its provisions are relevant they must be taken into account (ST v Chief Constable of Nottinghamshire [2022] EWHC 1280 (QB)).[21]Code G states inter alia:
“1.3 The use of the power must be fully justified and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means. Absence of justification for exercising the power of arrest may lead to challenges should the case proceed to court. It could also lead to civil claims against police for unlawful arrest and false imprisonment. When the power of arrest is exercised it is essential that it is exercised in a non-discriminatory and proportionate manner which is compatible with the Right to Liberty under Article 5. ... … 1.6 The Notes for Guidance are not provisions of this code. … Necessity criteria 2.4 The power of arrest is only exercisable if the constable has reasonable grounds for believing that it is necessary to arrest the person. The criteria for what may constitute necessity are set out in paragraph 2.9. It remains an operational decision at the discretion of the arresting officer as to: - what action he or she may take at the point of contact with the individual; - the necessity criterion or criteria (if any) which applies to the individual; and - whether to arrest, report for summons, grant street bail, issue a fixed penalty notice or take any other action that is open to the officer. 2.5 In applying the criteria, the arresting officer has to be satisfied that at least one of the reasons supporting the need for arrest is satisfied. 2.6 Extending the power of arrest to all offences provides a constable with the ability to use that power to deal with any situation. However applying the necessity criteria requires the constable to examine and justify the reason or reasons why a person needs to be taken to a police station for the custody officer to decide whether the person should be placed in police detention. 2.7 The criteria below are set out in section 24 of PACE as substituted by section 110 of the Serious Organised Crime and Police Act 2005. The criteria are exhaustive. However, the circumstances that may satisfy those criteria remain a matter for the operational discretion of individual officers. Some examples are given below of what those circumstances may be. 2.8 In considering the individual circumstances, the constable must take into account the situation of the victim, the nature of the offence, the circumstances of the suspect and the needs of the investigative process. [Paragraph 2.9 of Code G sets out the necessity criteria from section 24(5) with some illustrative examples.] … Notes for Guidance … 2C For a constable to have reasonable grounds for believing it necessary to arrest, he or she is not required to be satisfied that there is no viable alternative to arrest. However, it does mean that in all cases, the officer should consider that arrest is the practical, sensible and proportionate option in all the circumstances at the time the decision is made. This applies equally to a person in police detention after being arrested for an offence who is suspected of involvement in a further offence and the necessity to arrest them for that further offence is being considered. … 2F An officer who believes that it is necessary to interview the person suspected of committing the offence must then consider whether their arrest is necessary in order to carry out the interview. The officer is not required to interrogate the suspect to determine whether they will attend a police station voluntarily to be interviewed but they must consider whether the suspect’s voluntary attendance is a practicable alternative for carrying out the interview. If it is, then arrest would not be necessary. Conversely, an officer who considers this option but is not satisfied that it is a practicable alternative, may have reasonable grounds for deciding that the arrest is necessary at the outset ‘on the street’. Without such considerations, the officer would not be able to establish that arrest was necessary in order to interview. … 2G … If a person who attends the police station voluntarily to be interviewed decides to leave before the interview is complete, the police would at that point be entitled to consider whether their arrest was necessary to carry out the interview. The possibility that the person might decide to leave during the interview is therefore not a valid reason for arresting them before the interview has commenced ... .”
Necessity criteria

Notes for Guidance

[22]I was told by counsel that notes 2F and 2G were introduced in 2012, after the decision of the Court of Appeal in Hayes to which reference is made below.[23]The lawfulness of an arrest under section 24 is tested by asking what have become known as the “Parker Questions” (see Parker v Chief Constable of Essex [2017] EWHC 2140 (QB) per Stuart-Smith J at [14] and Magee v Chief Constable of Derbyshire Police [2020] EWHC 3569 (QB) per Saini J at [44-46]):
“(1) Did the arresting officer suspect that an offence had been committed? The answer to this question depends entirely on the findings of fact as to the officer's state of mind. (2) Assuming the officer had the necessary suspicion, did the arresting officer have reasonable grounds for that suspicion? This is a purely objective requirement to be determined by the Court. (3) Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officer's state of mind. (4) Assuming the officer had the necessary suspicion, did the arresting officer have reasonable grounds for that suspicion? This is a purely objective requirement to be determined by the judge, if necessary on facts found by a jury. (5) Did the arresting officer believe that for any of the reasons mentioned in subsection 24(5) of PACE , it was necessary to arrest the person in question? The answer to this question depends entirely on the findings of fact as to the officer's state of mind. (6) Assuming the officer had the necessary belief, were there reasonable grounds for that belief? This is a purely objective requirement to be determined by the judge, if necessary on facts found by a jury. (7) If the answer to the previous questions is in the affirmative, then the officer has a discretion which entitles him to make an arrest and in relation to that discretion the question arises as to whether the discretion has been exercised in accordance with Wednesbury principles.”
[24]A lengthy but helpful summary of the relevant legal principles was set out by Cotter J in Alger v Commissioner of Police of the Metropolis [2023] EWHC 1582 (KB):
“58. The arresting officer must honestly believe that arrest is necessary, for one or more of the reasons identified in section 24(5). In addition his decision must be one which, objectively reviewed afterwards according to the information known to him at the time, is held to have been made on reasonable grounds; see generally Hayes v Chief Constable of Merseyside Police [2012] 1 WLR 517, at 529. 59. In R (L) v Chief Constable of Surrey Police [2017] 1 WLR 2047 , a Divisional Court of Lloyd Jones LJ and Jay J, emphasised that ‘the underlying concept in section 24(5) is that of necessity’ and this ‘cannot be envisaged as a synonym for “desirable” or “convenient”’ or I would add, given the submissions before me to gain ‘control’ of a person for a period of time. 60. Whilst the expertise, knowledge and operational judgment of the police must be respected, the decision to arrest involves a deprivation of liberty, and demands ‘careful scrutiny’ by the Court and sets a ‘high bar’ : see generally R (B) v Chief Constable of NI [2015] EWHC 3691 (Admin) per Lord Thomas LCJ, and Commissioner of Police of the Metropolis v MR [2019] EWHC 888 (QB) . In Rashid v Chief Constable of West Yorkshire Police [2020] EWHC 2522 (QB) Lavender J drew attention to the fact that, whereas subsections 24(2) and (3) of PACE require reasonable grounds to suspect a person to be guilty of a crime, the requirement in subsections 24(4) and (5) ‘for reasonable grounds for believing that an arrest was necessary, imposed a comparatively high threshold’. 61. In respect of the grounds the officer actively considered, in Alexander and others: Applications for Judicial Review [2009] NIQB 20 , Kerr LCJ observed … ‘15. Of perhaps greater pertinence in the present debate, however is the question whether having reasonable grounds to believe (just as having reasonable grounds to suspect) restricts the ambit of permissible review by the courts to an examination of the actual grounds considered by the arresting officer. After all, it is to the grounds which the officer had, as opposed to those that he might have considered, that the subsection directs one's attention. This suggests that one should concentrate on the specific grounds to which the constable had regard. As against that approach, however, a wilful refusal to take into account factors that might have led unmistakably to a contrary view as to the necessity to arrest surely cannot be ignored in any judgment on the reasonableness of the grounds on which the belief was formed.’ 62. The position was similarly explained by Jay J in R (L) v Chief Constable of Surrey Police [2017] 1 WLR 2047 at [39] : ‘…the court does not ask itself whether any police officer could rationally have made the decision under challenge; it directs itself to the particular decision maker and his grounds.’ Jay J went on to refer to the case of Edwards v DPP [1993] 97 Cr App R 301 which ‘supports the contention that the focus should be on the arresting officer's actual reasons for his arrest, not on those which might arise by inference or retrospective justification.’ 63. Similarly, in Rashid v Chief Constable of West Yorkshire Police [2020] EWHC 2522 (QB) Lavender J rejected the Chief Constable's reliance on an asserted reason for arrest on the basis that ‘there was no evidence from [the arresting officer] that this supposed difficulty formed any part of the grounds for believing that it was necessary to arrest the Claimant.’ 64. In Re Alexander's Application Kerr LCJ rejected the submission that the requirement for necessity of arrest means that there must be no feasible, or viable, alternative, or that arrest must in every case be a matter of last resort. He also considered and rejected the submission that in order to have reasonable grounds for believing arrest to be necessary, the officer must ask the suspect as to whether he will attend the police station voluntarily. He stated: ‘Given the scope of the decision available to a constable contemplating arrest, we do not consider that it is necessary that he interrogate a person as to whether he will attend a police station voluntarily. But he must, in our judgment, at least consider whether having a suspect attend in this way is a practical alternative. The decision whether a particular course is necessary involves, we believe, at least some thought about the different options. In many instances, this will require no more than a cursory consideration but it is difficult to envisage how it could be said that a constable has reasonable grounds for believing it necessary to arrest, if he does not make at least some evaluation as to whether voluntary attendance would achieve the objective that he wishes to secure.’ 65. In Hayes Lord Justice Hughes referred to this passage and continued: ‘The correct analysis is contained in the last four lines of the passage cited above. The relevance of the thought process is not that a self-direction on all material matters and all possible alternatives is a precondition to legality of arrest. Rather it is that the officer who has given no thought to alternatives to arrest is exposed to the plain risk of being found by a court to have had, objectively, no reasonable grounds for his belief that arrest was necessary. In the single case whose merits were considered, Farrelly, this was precisely the reasoning of the court. The officer in that case had adopted a predetermined decision to arrest and had not thought about any alternative. The court held that he had not, objectively viewed, had reasonable grounds for his belief that arrest was necessary: see para 24.’ He added: ‘The officer ought to apply his mind to alternatives short of arrest, and if he does not do so he is open to challenge. The code provides a sensible warning to that effect. But the challenge, if it comes, is not one which requires the officer's decision to be subjected to a full-blown public law reasons challenge. It is one which requires it to be shown that on the information known to the officer he had reasonable grounds for believing arrest to be necessary, for an identified section 24(5) reason.’ 66. As I set out in ST-v-The Chief Constable of Nottinghamshire [2022] EWHC 1280 (QB): ‘92. Consideration by an officer of the necessity for arrest or detention does not require consideration of all potentially relevant circumstances. So much is clear from the judgment of Lord Hughes in Hayes. There is no need for a self- direction as to all factors that weigh in favour of arrest and those that weigh against. Also a failure to comply with any provision of the code does not by itself, without more, render an arrest or detention unlawful. Rather if its provisions appear to be relevant to any question arising, it is to be taken into account. 93. However, these principles are not, to use an apposite term a ‘get out of jail free card’ for an officer who has failed to properly evaluate the need for arrest or detention. The test of necessity is designed to protect the public from autocratic decisions and as explained by Lord Thomas LCJ in R (B) -v- Chief Constable of Northern Ireland [2015] EWHC 3691 the objective second limb of the test set out in Hayes encompasses the concept of Wednesbury reasonableness. Although not bound to take into account all considerations an officer should consider, to give at least some thought to, obviously material ones including any practical alternatives which are less intrusive than arrest. Were this not a requirement the test would be watered down so as to provide an inadequate safeguard. Code G 1.3 reminds the officers that the use of the power of arrest must be fully justified and in exercising the power they should consider if the necessary objectives can be met by other, less intrusive means. Arrest must never be used simply because it can be used (or is simply convenient for the progression of an investigation).’ And ‘113. I recognise that in evaluating the grounds for the decision to arrest the Judge had to allow sufficient room for individual judgment and the exigencies of policework. Ms White is correct that a Court must be careful to give due regard to matters of operational discretion.’”
He added: And

The judgment below

[25]HHJ Simpkiss set out the relevant legal principles, and it is not contended that he misdirected himself as to any of them.[26]The Judge noted that at the end of the evidence, the defendant submitted that there were no issues of fact to be left to the jury whilst the claimants submitted that there were two: i. Has the Defendant proved that PC Bell considered alternatives to arrest before arresting the First Claimant? and ii. Did PC Havers actually believe that it was necessary to arrest the Second Claimant(a) for a prompt and efficient investigation and(b) to prevent ABD from physical injury.[27]The Judge ruled that those questions should not go to the jury, whom he accordingly discharged. In respect of the question whether PC Havers actually believed that it was necessary to arrest the second claimant, his reasoning was:
“46. Nevertheless, the jury should only be asked to decide actual issues of fact in relation to facts which are relevant to the decision in the case. There was no real dispute in this case about PC Havers’ actual belief and to the extent that there was it was as to whether it was appropriate to infer from evidence other than direct evidence of PC Havers that he had that belief. That is a question of law and unless it was to be contended that PC Havers was lying when he used his words of arrest and when he wrote out and signed his MG11 there was only one possible verdict. It was not suggested that he was lying nor was there any basis for putting that to him.”
[28]The evidential basis for that conclusion was that although there was no evidence from PC Havers, who had left the police force, there were records of the arrest.[29]First, the Court heard PC Robinson’s BWV footage in which PC Havers was heard to say: “You are under arrest for suspicion of child neglect … The necessity is just to prevent harm … You know how it goes, prompt and effective …”.[30]The Court also saw a form MG11 (i.e. a witness statement) completed by PC Havers the day after the arrest in which he stated:
“The necessity for your arrest is to prevent physical injury to your child and to enable a prompt and effective investigation”
[31]The Judge also recorded that the second claimant, in evidence, conceded that there was no reason to suppose that PC Havers did not believe what he was saying at the moment of arrest.[32]In respect of PC Bell, the Judge noted that it was conceded in submissions that she did believe that the first claimant’s arrest was necessary.[33]At the time of the arrest she said that it was “to protect vulnerable persons and for a prompt and effective investigation”. In court she explained that it was important to get the accused person under control so that the vulnerable persons (her children) would be protected to prevent further harm and injury while the investigation was carried out.[34]In closing submissions, the claimants’ counsel accepted that the arrest was made(i) so as to safeguard the children; and(ii) to avoid contaminating the evidence by the Claimants talking to each other or talking to their children and that these reasons were important. The issue was whether arrest was the only way of achieving those aims.[35]The Judge noted that PC Bell accepted in cross-examination that a voluntary interview at the police station might have been possible. She had in mind a need “to gather the evidence very quickly and to get the Claimant under police control and to protect the children and prevent further harm and injuries”, and she “was aware that if the parents had not been arrested there was a risk that the police would not obtain the evidence they needed because the parents could speak to the children and each other”.[36]The Judge observed that this was a case where there was no evidence that the arresting officer applied her mind to the alternative of voluntary attendance at a police station and therefore ran the risk of a challenge to the reasonableness of her decision. However, at the time of the first claimant’s arrest, it was apparent to PC Bell that there was a significant risk to all three children and that they required urgent protection from the claimants, about whom she knew little or nothing. If she had thought about alternatives to arrest, she would have had to think about the risk of collusion between the parents and interference with the children’s evidence. The Judge concluded:
“63. … If the alternatives, which were not at all straightforward, were considered then no reasonable officer could have come to a different conclusion than to arrest. 64. I am therefore satisfied that the Defendant has proved that PC Bell reasonably believed that it was necessary to arrest the First Claimant for 2 of the reasons set out in section 24(5) of PACE. These were to protect a child or children from the person in question and to enable a prompt and effective investigation. For the same reasons I am satisfied that the burden of proof has been discharged in relation to PC Havers’ arrest of the Second Claimant.”
[37]The Judge went on to record that it became clear within a few hours that the children were not at risk and further police involvement was not necessary. However, the police did not know that at the time of the arrests. Accordingly the first claimant’s claim was dismissed.[38]In the case of the second claimant, the Judge said that he “gave serious thought to reaching a different decision” and that “the practicalities were not as stark as with the First Claimant because he was not at home. If he had come to the police station with the officers then he would not have been in contact with his children or ABD.”[39]However, the Judge held that the same risks existed in his case because of what he had been told about ABD’s allegations. Therefore the second claimant’s claim failed.[40]The Judge went on to resolve an issue about whether the first claimant should have been released at or soon after 3.12am. Nothing now turns on that.[41]By their grounds of appeal on liability the claimants contend that the Judge erred by:(1) finding that PC Bell’s belief it was necessary to arrest the First Claimant was objectively reasonable;(2) finding that PC Havers subjectively believed it was necessary to arrest the Second Claimant;(3) finding that PC Havers’ belief was objectively reasonable;

The parties’ submissions

[42]Counsel for the claimants here and below, George Murray, began by addressing ground 2.[43]Mr Murray submitted that the judge’s decision to withdraw the factual issue of PC Havers’ belief from the jury was wrong because there was a real issue on the evidence. He cited the approach taken by Ritchie J in Clark v Chief Constable of Merseyside [2023] EWHC 2565:
“40. When considering what to leave to the jury in a civil action against the police, in my judgment the authorities require a Judge to consider the following 3 steps: A pleaded issue of fact Is there a relevant issue of fact between the parties identified in or arising from the pleadings? Not agreed or uncontradicted By the end of the evidence, is the identified relevant issue of fact no longer in issue because it is agreed or there is uncontradicted evidence determining it? If so, it is no longer an evidential issue and no longer for the jury. A real issue on the evidence By the end of the evidence, is there a real conflict of evidence relating to the identified relevant issue of fact? If so, then it must be left to the jury. However, if no reasonable jury could decide the issue in any other way than the obvious way, so it would be perverse and overturned on appeal if the jury decided the issue any other way, then there is no real issue to be left to the jury.”
A pleaded issue of fact Not agreed or uncontradicted

A real issue on the evidence

[44]In closing submissions at trial, Mr Murray had accepted that PC Havers had suspected the second claimant of child neglect but not that he believed the arrest to be necessary. In submissions before me he rightly emphasized the difference between those two states of mind.[45]At the trial, each side had invited the Judge to withdraw the issue from the jury but that was because each contended that their own desired outcome was the only rational outcome.[46]Mr Murray referred me back to the Judge’s findings of fact relating to the second claimant in some detail. He submitted that it would have been perverse for the jury to find that PC Havers subjectively believed the arrest to be necessary, alternatively that the issue should have been left to the jury. There was no oral evidence from PC Havers himself on the point, and the only relevant evidence of PC Robinson was that, as the Judge found, he and PC Havers had discussed the need to safeguard the siblings with their senior officers. But their conversation about the arrest was not recorded and did not feature in any contemporary record. The evidence also was inconsistent, because PC Robinson referred to a need to safeguard “the siblings”, while PC Havers when making the arrest just referred to “harm” but, in his MG11 the next day, referred to “physical injury to your child”, presumably meaning ABD. And although in the MG11 PC Havers purported to state what he had said to the second claimant when making the arrest, its contents are by no means the same as the previous day’s BWV transcript. For example, when making the arrest he referred to a need to prevent “harm” but in the MG11 he claimed to have referred to preventing “physical injury to your child”.[47]It was therefore not entirely clear, he submitted, precisely what reason PC Havers had for any belief.[48]Mr Murray also relied on the fact that the second claimant was not suspected of committing any assault himself but merely of failing to intervene to stop assaults by his wife. In those circumstances, he submitted, PC Havers could not have believed that the second claimant himself posed any risk to ABD.[49]Overall, Mr Murray submitted that the issue should have been left to the jury so that the evidence could be tested, just as it would have been if PC Havers had given oral evidence.[50]The respondent’s counsel Adam Clemens also appeared here and below. He invited me to uphold the Judge’s reasoning, in particular at paragraph 46 of the judgment quoted at [25] above. He also reminded me of the need for an appellate court to be cautious about revisiting decisions about the facts made by a Judge at first instance with the advantage of having heard the evidence. He submitted that it could not be supposed that cross-examination of PC Havers would have exposed a lack of belief. As the Judge said at paragraph 50 of his judgment, after PC Bell was cross-examined about her state of mind the claimants conceded that she did in fact have the necessary belief.[51]Turning to ground 1, Mr Murray accepted at trial that the Police were right to treat the safety of the children as of paramount importance and that it was necessary for them to protect the integrity of their investigation. He also accepted that it was necessary for the first claimant to accompany PC Bell to the police station. The issue is whether there were reasonable grounds for believing that it was necessary to arrest her to ensure that she did so.[52]Mr Murray submits that there were no reasonable grounds for that belief. There was no reason to believe that the first claimant would not have attended voluntarily, and the belief was formed without PC Bell considering whether a voluntary interview was a viable alternative. At the time of arrest the officers knew that the first claimant was a police officer “of impeccable record”, she had suggested a voluntary interview, they let her use her phone to call her supervising officer and PC Gavin spoke to her too, she was allowed to call a relative to come and look after the children, she gave consent to the social worker for temporary care of ABD and the officers did not see fit to handcuff her or to seize her phone or her computer.[53]In short, Mr Murray submitted, the arrest did not create any advantage which could not also have been created by taking the first claimant to the police station for a voluntary interview.[54]Mr Murray also submits that PC Bell failed to consider that the arrest process might be distressing to the other two children who were present. Her actions were in contrast to those of the social worker Ms Hunt, who did not take the option of using any coercive powers for the children’s protection. There was no evidence that arresting the first claimant had any benefit for the children or the investigation which could outweigh the risk of harm to the children and to the first claimant herself.[55]As to ground 3, Mr Murray submitted that the same points applied with even greater force. So, even if PC Havers subjectively believed the arrest to be necessary, there were no objectively reasonable grounds for such a belief. As in the case of the first claimant, there was no reason to believe that he would not have co-operated in full if he had been offered a voluntary interview under caution. But in addition, he was not a person who was suspected of causing injury to ABD. There was no evidence that the police considered the option of allowing him to return home while the first claimant was interviewed.[56]Mr Clemens responded on grounds 1 and 3 together. He relied on Hayes for the propositions that(1) when deciding whether there were reasonable grounds for an officer’s belief that an arrest was necessary, the Court does not use hindsight and(2) that the test is not a “public law” test such as would be applied in a claim for judicial review, whereby (for example) a failure to have regard to a relevant factor could render the decision unlawful.[57]That being so, Mr Clemens submitted that grounds 1 and 3 were doomed to failure by the Judge finding, as he was entitled to, that the reasons for the arrests were evidence-based and genuine. There was unchallenged evidence that the officers had been told about allegations of child neglect and assault. They rightly viewed the children’s safety as paramount. Those matters bolstered their belief that arrests were necessary to protect the children and to ensure that the suspects were interviewed promptly and without any collusion.[58]Mr Clemens rejected the suggestion that consideration of Code G should have led to a different outcome. Application of the Code does not permit this Court to apply hindsight or a public law test. If the police had adopted the alternative course of conducting voluntary interviews but then arresting the claimants, for any reason, at the police station, they might have been criticised for subterfuge. In Hayes it was pointed out that it “would not be honest for an officer to invite a person to attend a voluntary interview if he intended to arrest him the moment he elected to leave” and also that even if a person could be arrested if they stopped co-operating with an interview, that would lead to a delay in continuing the interview. Discussion Ground 2[59]In my judgment, it was open to the Judge on the evidence to find that PC Havers subjectively believed that it was necessary to arrest the second claimant.[60]The absence of PC Havers at the trial reduced the quality of the evidence. Nevertheless, he was heard to state his reasons for the arrest on PC Robinson’s BWV footage. That statement was delivered in something approaching shorthand, but that can be explained by the fact that the second claimant was a fellow police officer who would be familiar with the statutory test. PC Havers said that he considered it necessary to make an arrest to protect harm and to conduct a prompt and effective investigation. He confirmed that in writing the following day in a form MG11, admittedly with some inconsistency about whether the feared harm was to one child or all the children.[61]The objective basis for that belief is challenged for sound reasons, as I explain below, but the test applicable to this ground is subjective belief, not objective basis. In principle, a lack of objective basis could found an inference of a lack of subjective belief, but in this case I am not convinced that the criticism of the objective basis are such as to undermine the Judge’s finding that PC Havers truthfully stated his belief.[62]Ground 2 therefore fails.

Grounds 1 and 3

[63]As I have said, the test of necessity was introduced by amendment when the power of arrest without warrant was extended to all offences. As the case law recognises, the relevant rules and principles operate as important constitutional safeguards in the exceptionally important area of the liberty of the subject.[64]If those rules and principles are to provide real safeguards, then they must be applied.[65]Take, for example, the provisions of Code G. A breach of the Code by itself does not establish unlawfulness. So, on its facts, a breach may not be sufficiently serious to make an arrest unlawful. Or there may have been a good reason for it, or it may be offset by some other factor. But where it is serious or important, and not explained or offset, then it may well be a weighty factor, or even the only factor, which leads to the conclusion that an arrest was unlawful on a proper analysis of all the facts of a case.[66]Similarly the need for the legal test to set a high bar (Alger paragraph 60) must be given a practical meaning. It is linked with the principle that “necessary” does not mean simply “desirable” or “convenient” (Alger paragraph 59). If the police cannot show that there were objective grounds to satisfy that exacting test, the Court must find an arrest unlawful.[67]The Court must also be rigorous in confining its examination to the arresting officer’s actual reasons for the arrest and in excluding any hypothetical reasons which were not thought of at the time (Alger paragraph 62). Without that rigour, the rule ceases to be a rule.[68]Similarly, if arresting officers do not give any thought to a realistic alternative to arrest – including voluntary attendance at the police station where that is a realistic alternative – they are “exposed to the plain risk” of liability (Alger paragraph 65). That “risk” cannot be merely abstract. If it is a real risk, then it will sometimes eventuate in a Court making a finding of an unlawful arrest.[69]In my judgment, on a proper analysis of the evidence at trial, the police did not show that there was an objective basis for the belief that it was necessary to arrest either claimant.[70]In both cases the alternative of voluntary interview is the crux of the case. The police were bound to consider whether it was a practical alternative (Alger paragraph 64). There was no evidence that they gave this any real thought, and therefore they were “exposed to the plain risk” of liability, as the Judge said in respect of PC Bell at [62].[71]What, then, were the countervailing factors which might enable them to avoid that risk?[72]The Judge found that PC Bell had in mind a “significant risk” to the children and a need for “urgent protection” from the claimants (about whom she knew little or nothing), and “the general risk in this type of case of collusion between the parents and of potential interference with the children’s evidence”.[73]He concluded that “if the alternatives, which were not at all straightforward, were considered then no reasonable officer could have come to a different conclusion than to arrest”.[74]In the case of PC Havers the Judge noted what the second claimant knew about the allegations, and found that if there was no arrest “there would have been the same risks as those relating to the First Claimant”.[75]Essentially the Judge concluded that the facts of this case as they were known at the time of the arrests – allegations of assault on and neglect of ABD, the first claimant being at home with the two siblings, the second claimant coming to collect ABD from the Centre, the possibility that the parents would collude and/or influence any evidence from the children – provided a rational basis (or, as he found, an overwhelming basis) to conclude that voluntary interview was not an option.[76]With great respect to the Judge, I am unable to agree.[77]Notes 2F and 2G to the Code are not part of the Code. However, they are published by the Home Office to assist officers (and others) in understanding the Code. They cannot be ignored. Following the case of Hayes those new notes advised officers that voluntary attendance for interview must be considered (a conclusion which can be inferred from the provisions of the Code itself) and that the “possibility that the person might decide to leave during the interview is … not a valid reason for arresting them before the interview has commenced”.[78]In the present case, no reason has been identified which actually explains why voluntary interviews were not a viable alternative. In the light of note 2G, the Judge’s conclusion that that option was “not at all straightforward” is unsupported by reasons.[79]The fact is that taking the claimants to the police station would have prevented them from speaking to the children or harming them, and I know of no reason why they could not have been prevented from speaking to each other. If at any time they ceased to co-operate they could have been arrested. Note 2G makes that clear and, as long as the police are open with a suspect about what to expect at the police station, there is no reason for any accusation of “subterfuge”.[80]Paragraph 2.8 of the Code required consideration of circumstances including the situation of the victim, the nature of the offence, the circumstances of the suspect and the needs of the investigative process. In this case the alleged victim was safe, in the presence of police officers and a social worker. The second claimant in particular was not accused of any contact offence but rather of a failure to intervene. The suspects were being entirely co-operative with both the police and the child protection authorities.[81]For those reasons this is not one of the many cases where police will have an “operational” justification for an arrest at the time, even if it later seems harsh. The situation was under control. It was easy to arrange for the children to be cared for but in any event the local authority, present in the person of the social worker, provided a safety net. The suspects were co-operative and able to engage in constructive dialogue with the police, as can be seen from the interactions with the first claimant when PC Bell arrived at her home.[82]None of this means that police officers are entitled to special treatment when they find themselves suspected of an offence. But the police must assess the circumstances and make rational decisions as to whether coercive measures are needed or not. The relevant “circumstances of the suspect” commonly include previous good character, and their personal background may or may not be relevant depending on the facts.[83]I conclude that in this case, the “plain risk” of liability following from the officers’ omission to consider alternatives to arrest has eventuated. Merely referring to the need to protect children and to protect the integrity of the investigation was not and is not enough.[84]It follows that the arrests were unlawful and the claims should have succeeded. The costs appeal Background

The costs appeal

[85]By ground 4 it is said that the Judge erred by permitting the Defendant to enforce 70% of his costs against the Claimants under CPR r44.16(2)(b).[86]In light of my conclusion on grounds 1 and 3, ground 4 is presently academic. However, I shall set out my conclusions on ground 4 in case my conclusion on grounds 1 and 3 is disturbed on appeal.[87]The costs issue turned on an analysis of the extent to which this claim was properly regarded as a claim for personal injuries, in respect of which the claimants note the following:a. They both sought(i) basic damages for loss of liberty and distress,(ii) general damages for personal injury,(iii) aggravated damages and exemplary damages, all arising from their arrest and detention.b. They both claimed to have suffered a recognised psychiatric injury, supported by expert evidence from a clinical psychologist on which they were granted permission to rely. They disclosed their medical and counselling records and gave written evidence of their injuries.c. The defendant put Part 35 questions to the expert psychologist to which she responded, and did not apply to rely on their own expert evidence or to cross-examine her.d. The trial was listed to determine all issues of liability and quantum and the relevant evidence was contained in the trial bundle and covered in evidence in chief.e. At the conclusion of the evidence, counsel agreed to limit their submissions to liability only in the hope that quantum could be agreed if either claim succeeded.

Legal framework

[88]CPR rules 44.13-44.16 provide for qualified one-way costs shifting (“QOCS”). That consists of automatic costs protection which ensures that claimants with a claim for damages for personal injury, whether they win or lose, do not emerge from the proceedings with an adverse costs liability. The rationale for its introduction was a perceived risk that costs risks would deter injured people from claiming compensation.[89]Rule 44.13 provides:
“(1) This Section applies to proceedings which include a claim for damages – (a) for personal injuries; (b) under the Fatal Accidents Act 1976; or (c) which arises out of death or personal injury and survives for the benefit of an estate by virtue of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, but does not apply to applications pursuant to section 33 of the Senior Courts Act 1981 or section 52 of the County Courts Act 1984 (applications for pre-action disclosure), or where rule 44.17 applies.”
[90]CPR 2.3 defines a “claim for personal injuries” as:
“… proceedings in which there is a claim for damages in respect of personal injuries to the claimant or any other person or in respect of a person’s death, and ‘personal injuries’ includes any disease and any impairment of a person’s physical or mental condition . . .”
[91]The QOCS protection is conferred by rule 44.14(1):
“Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.”
[92]Applying that rule, if an unsuccessful claimant recovers no damages, an order for costs against the claimant cannot be enforced.[93]Rules 44.15 and 44.16 provide exceptions to the rule. The relevant one for present purposes is in rule 44.16 which provides so far as relevant:
“(2) Orders for costs made against the claimant may be enforced up to the full extent of such orders with the permission of the court, and to the extent that it considers just, where – … (b) a claim is made for the benefit of the claimant other than a claim to which this Section applies . . .”
[94]This is sometimes referred to as the “mixed claim” exception. It means that the Judge has a discretion to allow costs to be enforced where the claim included a claim that was not a claim for personal injuries as well as a claim that was.[95]Relevant guidance is found in Brown v Commissioner of the Police of the Metropolis [2020] 1WLR 1257 (“Brown”). There, a former police officer alleged the unlawful obtaining and use of private information about her and her daughter. She claimed damages for personal injury, as well as for misfeasance in public office and misuse of private information, and under the Human Rights Act 1998 and the Data Protection Act 1998. The trial judge held that there was automatic costs protection under QOCS. The High Court allowed an appeal, holding that this was a mixed claim to which the discretion applied. Dismissing a further appeal, Coulson LJ said:
“54 The starting point is that QOCS protection only applies to claims for damages in respect of personal injuries. What is encompassed by such claims? It seems to me that such claims will include, not only the damages due as a result of pain and suffering, but also things like the cost of medical treatment and, in a more serious case, the costs of adapting accommodation and everything that goes with long term medical care. In addition, contrary to the submissions advanced by Ms Darwin and Mr Jaffey, I consider that a claim for damages for personal injury will also encompass all other claims consequential upon that personal injury. They will include, for example, a claim for lost earnings as a result of the injury and the consequential time off work. 55 In other words, a claim for damages in respect of personal injury is not limited to damages for pain and suffring. For these reasons, as Whipple J noted at para 60 of her judgment, claimants in a large swathe of ‘ordinary’ personal injury claims will have the protection and certainty of QOCS. 56 I acknowledge that, in personal injury proceedings, another common claim will be for damage to property. For example, in road traffic accident litigation, there will usually be a claim for the cost of repairs to the original vehicle, and the cost of alternative vehicle hire until those repairs are effected. Such claims are not consequential or dependent upon the incurring of a physical injury: they are equally available to a claimant who survived the accident without a scratch as they are to a claimant who broke both legs in the accident. They are claims consequent upon damage to property, namely the vehicle that suffered the accident, and therefore fall within the mixed claim exception at rule 44.16(2)(b). 57 But in such proceedings, the fact that there is a claim for damages in respect of personal injury, and a claim for damage to property, does not mean that the QOCS regime suddenly becomes irrelevant. On the contrary, I consider that, when dealing with costs at the conclusion of such a case, the fact that QOCS protection would have been available for the personal injury claim will be the starting point, and possibly the finishing point too, of any exercise of the judge’s discretion on costs. If (unlike the present case) the proceedings can fairly be described in the round as a personal injury case then, unless there are exceptional features of the non-personal injury claims (such as gross exaggeration of the alternative car hire claim, or something similar), I would expect the judge deciding costs to endeavour to achieve a ‘cost neutral’ result through the exercise of discretion. In this way, whilst it will obviously be a matter for the judge on the facts of the individual case, I consider it likely that, in most mixed claims of the type that I have described, QOCS protection will – in one way or another – continue to apply.”
[96]In ABC v Derbyshire County Council [2023] EWHC 1337 (KB) (“ABC”), parents and their two children brought unsuccessful claims because a local authority had taken the children into police protection and the parents were arrested on suspicion of child cruelty offences. All four brought claims under the Human Rights Act 1998. The children also claimed in negligence and the parents in false imprisonment. All sought damages for personal injuries and financial loss and aggravated damages, the latter amounting to one third of the total sum claimed. Following the guidance in Brown, Hill J ruled this was “in the round … a personal injury case”. The PI claims were supported by expert evidence and were not simply “tacked on” to obtain QOCS protection. The aggravated damages claim required no further evidence. The starting point was 100% protection, and a small reduction was made for the “exceptional feature” of some unreliable expert evidence being adduced.[97]In Afriyie v The Commissioner of Police of the Metropolis [2023] 1974 (KB) (“Afriyie”), police officers had used a taser on a claimant and handcuffed him. He claimed, unsuccessfully, for assault and battery and misfeasance in public office, seeking basic (i.e. non-PI) damages, damages for personal injury, special damages, aggravated damages and exemplary damages. Finding that this too was “in the round” a PI claim, Hill J ruled that QOCS protection should be applied with no deduction. She noted in particular that the grounds for the aggravated and exemplary damages claims arose from the same actions of the police which gave rise to the PI claim, and in any event the issues about the behaviour of the police, including their truthfulness, had to be considered in order to decide primary liability.

The judgment

[98]In his judgment on costs dated 20 January 2025, the Judge referred to paragraph [57] of Brown.[99]Healsonoted at [27] that, if they had succeeded, the personal injury and the non-personal injury elements of the claim would have had broadly similar values, and at [28] that both types of loss depended on the same facts and, as regards liability, on the same evidence.

The Judge held:

“29. In my judgment this is not a personal injury case ‘in the round’ for the following reasons: i. Although the personal injury claim is dependent upon the same evidence as the non-personal injury claims the case is very different from ABC and Afriye and much more similar to Jeffreys v Commissioner of Police of the Metropolis [2018] 1 WLR 3633. Although this pre-dated the Court of Appeal decision in Brown, I do not read Coulson LJ as saying that it was wrong or inconsistent although it was cited in his judgment. The facts in that case were very different and the trial judge was firm in his view that the personal injury claim was ancillary to the other claims for wrongful arrest and false imprisonment and misfeasance, the latter being the essence of the claim. ii. The Claimants’ case against the officers involved in the arrest and detention was straightforward. It was alleged by the First Claimant that her arrest and detention had been accompanied by “humiliating circumstances” and that the arresting officers had been “high-handed, insulting, malicious”
. In cross-examination she said that there was a conspiracy to do her down because she was a police officer. I should say that she later accepted that she was not suggesting that as an officer she should be treated differently from any other suspect. iii. The claims for wrongful arrest and false imprisonment entitled the Claimants to a jury trial, which they elected for. iv. There was little or no mention of the personal injury aspect of the claims during the trial and the preparation for trial, which focussed on the actions of the police witnesses. v. Although the damages which were likely to have been awarded if the Claimants had succeeded were of a similar level for the personal injury and non-personal injury claims, it is the nature of claims for wrongful arrest and detention which can give rise to low levels of damages. That is because these claims are usually brought in order to obtain formal recognition that the police have behaved unlawfully and damages is a less important motivation for most claimants.” i. Although the personal injury claim is dependent upon the same evidence as the non-personal injury claims the case is very different from ABC and Afriye and much more similar to Jeffreys v Commissioner of Police of the Metropolis [2018] 1 WLR 3633. Although this pre-dated the Court of Appeal decision in Brown, I do not read Coulson LJ as saying that it was wrong or inconsistent although it was cited in his judgment. The facts in that case were very different and the trial judge was firm in his view that the personal injury claim was ancillary to the other claims for wrongful arrest and false imprisonment and misfeasance, the latter being the essence of the claim. ii. The Claimants’ case against the officers involved in the arrest and detention was straightforward. It was alleged by the First Claimant that her arrest and detention had been accompanied by “humiliating circumstances” and that the arresting officers had been “high-handed, insulting, malicious”. In cross-examination she said that there was a conspiracy to do her down because she was a police officer. I should say that she later accepted that she was not suggesting that as an officer she should be treated differently from any other suspect. iii. The claims for wrongful arrest and false imprisonment entitled the Claimants to a jury trial, which they elected for. iv. There was little or no mention of the personal injury aspect of the claims during the trial and the preparation for trial, which focussed on the actions of the police witnesses. v. Although the damages which were likely to have been awarded if the Claimants had succeeded were of a similar level for the personal injury and non-personal injury claims, it is the nature of claims for wrongful arrest and detention which can give rise to low levels of damages. That is because these claims are usually brought in order to obtain formal recognition that the police have behaved unlawfully and damages is a less important motivation for most claimants.”[101]The costs judgment continued:
“30. Having concluded that this is not “in the round” a personal injury claim the court has to decide whether to exercise its discretion to permit enforcement of the Defendant’s costs order and, if so, to what extent. I am satisfied that discretion should be exercised to arrive at a “costs neutral” result as envisaged by Coulson LJ. 90% is too high as it does not take into account that there weas a real personal injury claim supported by expert evidence. Mr. Clemens said that in his experience orders were regularly made of 70% and this is what happened in Jeffries. In my judgment that is a just and fair apportionment in this case.”

The submissions

[102]Mr Murray acknowledged that whilst an appellate court must accord appropriate respect to a trial judge’s exercise of a discretion as to costs, QOCS is a developing area in which there may be more room for error.[103]Mr Murray submitted that this case was very similar to ABC and that here, as in that case, the starting point should have been 100% protection.[104]He submitted that the inclusion of claims for basic, aggravated and exemplary damages does not prevent this from being, in the round, a personal injury case. There is no dispute that this is a “mixed claim”.[105]Mr Murray emphasized that it does not matter which torts the claimants relied on, Coulson LJ having indicated in Brown that what matters is the remedy, not the cause of action.[106]In this case he submitted that the manner of the arrest was the basis for all of the claims, i.e. for personal injury as well as for aggravated and exemplary damages. The claimants could easily have limited their claim to personal injury damages alone, in which case the evidence would have been identical and the claim would not be within even a discretionary exception to QOCS.[107]Meanwhile the personal injury claims were substantiated by expert evidence, and by the claimants’ factual evidence which was not challenged.[108]Moreover, no additional disclosure or evidence was required to deal with the heads of damage other than personal injuries. Whilst there was little mention of the personal injury issue at trial, that can often happen in a personal injury claim e.g. where there is a trial of liability only. In this case the parties had made a sensible agreement to focus on liability in the hope that quantum would be agreed if the Claimants succeeded.[109]Mr Murray also submitted that there were no “exceptional features” to justify any departure from the starting point of no liability for costs.[110]Finally Mr Murray noted that the Judge appears to have misunderstood Coulson LJ’s reference to a “costs-neutral” result, which in context meant that the claimant was not liable for costs.[111]In response, Mr Clemens emphasizes that the trial judge, who was best placed to assess the facts, exercised a discretion as to costs and therefore this court should not interfere unless he made some fundamental error. The judge, he submitted, applied the correct test by asking whether this was “in the round” a personal injury claim. Mr Clemens submitted that the judge was entitled to view this case as being essentially concerned with the claimants seeking vindication and a finding that their arrests were not necessary.[112]Mr Clemens sought to distinguish ABC and Afriyie.[113]He said that in ABC, unlike this case,negligence claims (by the children) and HRA and false imprisonment claims by the parents were said at [42] to have been pursued at trial “almost exclusively for the purpose of obtaining personal injury damages” and at [43] to have been seen before trial as “focused” on the personal injury claims. Several experts were instructed to deal with personal injury issues and all the disclosure and evidence was necessary for the determination of the personal injury claims. Most of the damages sought were for personal injuries.[114]Mr Clemens emphasized that Afriyie, unlike this case, arose from physical acts i.e. tasering which caused the claimant to fall and suffer injury, and handcuffing. All of the issues about motivation and misfeasance were concerned with those acts. There was a live issue at trial about the extent of any injury and various experts were relied on by the claimant to deal with personal injury issues.[115]Finally Mr Clemens submitted that the QOCS regime was not intended to capture police cases of this kind, where claimants may elect a trial by jury which is liable to increase costs.[116]In answer to a question from me, Mr Clemens said that it was not contended that this was a case where a spurious personal injury claim was “tacked on” in an attempt to obtain costs protection.[117]Mr Murray responded on those last two points, contending that Afriyie was not materially different because in a personal injury claim there is no material distinction between physical and psychiatric harm, and pointing out that police cases could have been excluded from the QOCS regime but were not.

Discussion

[118]The parties agreed that(1) this was a “mixed claim”,(2) the extent of any QOCS protection was therefore in the judge’s discretion but(3) on the law as it stands, the “starting point” would be complete protection if the claim could be properly characterised as a personal injury claim “in the round”.[119]By their Particulars of Claim, the Claimants claimed to have suffered “injury, distress, inconvenience, loss of liberty, interference with their person and pecuniary loss”, including (in each case) a psychiatric illness namely an adjustment disorder. As to that illness, each relied on the report of a psychiatric expert witness. They also claimed:
“(a) Aggravated damages, due to the humiliating circumstances of their arrest and the high-handed, insulting, malicious and/or oppressive conduct of the arresting and custody officers; and/or (b) Exemplary damages, due to the oppressive, arbitrary and unconstitutional conduct of the arresting and custody officers, of which an award of purely compensatory damages would be insufficient to mark the Court’s disapproval.”
[120]By the Prayer to their Particulars, each sought:
“(1) Damages in excess of £5,000 but not exceeding £10,000 in total, including but not limited to: (a) Damages for pain, suffering and loss of amenity in excess of £1,500; and (b) Aggravated and/or exemplary damages. (2) Interest thereon as aforementioned.”
[121]I have not seen the psychiatric reports but the judge said that the PI and non-PI damages would have been at a similar level. Given the fairly small sums claimed, and given the allegation of a psychiatric illness which presumably was at the lower end of the range which can be claimed, that conclusion is unsurprising.[122]In my judgment this case differed from ABC in that it was less “focused” on the personal injury side. That is not least because quantum was deferred to be dealt with if and when necessary.[123]However, this case also had a number of the features identified by Hill J in ABC, namely that all of the factual allegations and all of the evidence were necessary for the determination of the PI claims, the PI claims were supported by expert evidence (and it is agreed they were not just “tacked on”), the claim for aggravated damages did not generate any need for additional evidence, and any PI damages would have been a substantial proportion of any eventual award if the claims succeeded.[124]Similarly, this case had in common with Afriyie the feature that claims for aggravated and exemplary damages depended on the same facts as the PI claim. But Afriyie was more obviously a PI claim because the “act which was at the heart of the case” (Hill J at [28] was what caused the alleged injury whilst subsequent conduct was more the foundation of the claims for aggravated and exemplary damages.[125]I am not greatly assisted by Jeffreys v MPC [2017] EWHC 1505 (QB), [2018] 1 WLR 3633 That case pre-dated Brown and, more importantly, the decision by the trial judge that the PI claim was merely “ancillary” to a non-PI claim was not appealed to the High Court.[126]So, ABC and Afriyie were more clear-cut, but the present case poses the question of where the line is drawn when the Court decides whether a “costs-neutral result” should be the starting point.[127]That question was left open, in my judgment, by Brown. When Coulson LJ referred to the question whether “proceedings can fairly be described in the round as a personal injury case”, I doubt he intended that formula to be read as if it were a statutory provision. I note also that in context, paragraph 57 of his judgment was referring to claims which were “mixed” because they included claims for both personal injury and damage to property, as is very commonly the case in claims arising from accidents. Coulson LJ distinguished such cases from the one before him, where personal injury might have been viewed as a somewhat incidental consequence of an interference with personal data. Neither type of case was on all fours with a false arrest case.[128]In my judgment, the fact that – as the Defendant rightly agrees – this is not a case of “the … ‘tacking on’ of a claim for personal injury damages (regardless of the strength or weakness of the claim itself) … just to hide behind the QOCS protection” (Brown at [58]) is very important. These claims included an entirely viable head of loss consisting of personal injury which is not at all unusual in a claim for the torts which were alleged in this case, and which was supported by prima facie credible expert evidence. And, the personal injury head of loss would, or could be expected to, account for a substantial proportion of any damages that would be awarded if the claims succeeded.[129]In those circumstances, I consider that it was an error to apply the discretion as to costs protection on the basis that this was not, in the round, a personal injury case. That therefore undermined the exercise of discretion by the Judge.[130]I will invite submissions on the question of what if any order I should make in respect of this ground of appeal, in light of my decision on the first ground.

Conclusion

[131]The appeal is allowed. I will invite submissions on consequential matters.