“28. … PC Crouch, as arresting officer, suspected, and had reasonable grounds to suspect, that the Claimant had committed the offence of affray, in that he had seen the Claimant point a knife in his direction and walk towards him while shouting threats and adopting an aggressive posture. …” “30. … PC Crouch, as arresting officer, believed and had reasonable grounds to believe that the Claimant’s arrest was necessary in order to prevent him causing injury to himself or to others, including PC Crouch himself and PC Corden. This belief was based on the Claimant’s own conduct, including holding a knife to his throat and threatening to slit it, and pointing the knife at PC Crouch while moving towards him in an aggressive manner as set out above. The officers had attempted to use steps short of arrest in that they had attempted to speak to the Claimant to persuade him to put the knife down: these efforts were unsuccessful and cut short by the Claimant’s decision to escalate the situation by standing up, pointing the knife at PC Crouch and moving towards him. 31. It is denied that the officers caused (or, insofar as it is still alleged, contributed to) an unnecessary confrontation. They did not approach furtively or from behind; they did not threaten him with any weapons until after he had begun to act threateningly towards them; they did not refuse to or fail to adhere to the distance he had requested, but had stopped when he asked them to and only moved when he escalated the situation. Prior to the Claimant escalating the situation, their manner was not confrontational or aggressive and they did not treat him as someone suspected of a criminal offence.” “37. … The Defendant denies that any force used was more than was reasonably necessary and proportionate in the circumstances as the officers genuinely and reasonably believed them to be, namely that the Claimant was threatening to attack PC Crouch with a large serrated knife.”
“Although the Claimant continued to be aggressive and seemed really angry and suspicious that we were there my focus was still to help him and I had no intention to arrest him at this point.”
“31. Suddenly and without warning, he stood up from the stool with the knife still in his hand. He then pointed the knife directly at me and started to wave the knife around whilst lunging towards me. The Claimant continued to wave the knife in my direction and opened up his chest area by spreading his arms and puffing his chest.” “33. The Claimant continued to shout towards me. His whole demeanour was of such anger and it seemed to be completely directed at me. 34. The speed that the Claimant stood and started moving towards me took me by surprise and I genuinely thought he was going to stab me if I did not take immediate action. 35. It was at this point that I believed the Claimant was committing an offence, namely that of Affray, however, I was focussed on protecting myself in the first instance.” “38. As tactical communications was already used and ineffective I saw no other means of ensuring my safety other than to draw my Taser. As I discharged it, I shouted “Taser, Taser” as per my training. 39. The effect of the Taser caused the Claimant to stumble backwards slightly and fall onto the stool that he had just stood from. However, it did not seem that the Taser was fully effective as the Claimant was trying to stand back up and still had hold of the knife, staring directly at me. 40. I then decided to perform a double palm heel strike in another attempt to disarm the Claimant. At or around the same time, I saw PC Corden appear to the right side and he kicked the Claimant’s right hand. I believe this was also done in an attempt to disarm the Claimant.” “44. I had considered alternatives, for example returning him to his address or taking him to get the help he initially asked for, however, given the set of circumstances that had taken place and how quickly it had escalated, none of these options seemed appropriate. In any case, in my mind the Claimant had committed an offence and was a risk to himself and other people, therefore, I believe the arrest was proportionate and reasonable.”
“What are the legal consequences which would flow from a finding that the real reason for the arrest was that the Claimant had stood up with a knife in his hand in the circumstances set out below (but that he did not lunge at the officers with a knife)?”
“… the task for the Court is to find what factors were operating on the mind of PC Crouch at the time when he decided to arrest. Provided those reasons are sufficient, it does not affect liability if the Court concludes that, following the arrest, the officer embellished his account to rely upon an additional matter which was not present in his mind at the material time.”
“I find that (sic) PC Crouch’s avowed reason for arrest (because C was waving the knife, threatening him and PC Corden, and moving quickly towards them) not to be credible for the reasons already given. …”
“182. In my judgment, Mr Waite’s submission is to be preferred. In contrast to Alger, the rejection of PC Crouch’s evidence of C lunging and waving the knife does not leave D with no basis upon which to act. It must be open to the court to find what was really in his mind even where rejecting embellishment, particularly where there is much that is not in dispute about the events of that evening: that C was undergoing a mental health crisis, that he had imbibed alcohol and prescription drugs, that he was in possession of a knife, that he had not heeded instructions to drop it and had stood while holding it. There is an artificiality about rejecting outright an officer’s account altogether where it is found to be unsatisfactory in parts and an inability of the court to find what was really operating on his mind per Alexander. This is not to fall into the Alger trap of providing an ex post facto justification which simply was not considered or did not even exist at the time but rather of looking at what happened and what really was operating on the officers’ minds. PC Corden’s account was stripped of PC Crouch’s embellishments to some degree as he did not contend that C issued threats to them (aside from the honest and reasonable but mistaken contention of momentarily pointing the knife) or wave the knife around. However, he did suggest that C moved quickly and closed them down (which evidence I have rejected). The same principle applies in his case- that it is open to the court to find what was operating upon their minds. I see nothing in review of the authorities in Alger that precludes this approach. The focus must be on the decision maker and the actual reasons for his arrest per Alexander, Edwards and R (L). 183. PCs Crouch and Corden were faced with a dangerous situation. C was issuing threats of self-harm. He had imbibed alcohol and prescription drugs. The officers could not be certain as to the quantity of the consumption. C was undergoing a mental health crisis. He was in possession of a knife which he had refused to release. On any view, this was a tense situation involving a volatile and unpredictable individual (or at any rate, the officers could reasonably and honestly have taken that view, even if they were mistaken about it). That C had a propensity to behave aggressively is shown by the SGH notes taken that evening. The exigencies of police decision making must be respected per ST. The present case is not one where it could be said that the court is applying reasons by inference or retrospective justification; rather the court is saying that these reasons existed and the arresting officer was aware of them and took them into account, even if the court does not accept the additional and hyperbolic elements of his evidence. 184. C’s actions were an affray per the analysis at paragraphs 154 and 155. I accept that C was not waving or brandishing the knife and had not uttered verbal threats to the officers. However, he stood while holding it and disregarded the command to release it for which he had no explanation. The carrying of a weapon in itself can amount to an affray where such action will “cause a terror in people” per Sharp. Alternatively, there were reasonable grounds to suspect an affray and/or that C was guilty of affray. In my judgment, C’s actions and the circumstances were such as to reasonably cause the officers fear. There is no suggestion that they are not of reasonable firmness. The court has made factual findings that this was the situation that presented to the officers that evening. It follows that this is what was in their minds- it could hardly be otherwise. This is what they saw and heard. This context provides the justification for their actions. 185. It follows therefore that the actions of PCs Crouch and Corden were acts of self-defence as they objectively reasonably and honestly believed there to be threat to their persons. They were faced with an unpredictable individual in possession of a large knife. It was reasonable to take steps to defend themselves by disarming C. They also had objectively reasonable grounds and could form an honest belief that C had committed or was committing an affray and that steps were required to prevent the further commissioning of that offence and to arrest him for it. 186. The issue then is whether reasonable force was used in their self-defence, prevention of the commissioning of affray and effecting arrest. This must be reasonable and proportionate force. 187. I agree with Mr Waite that the situation was extremely dangerous. C had been asked to relinquish the knife. He had not done so. He needed to be disarmed. It is difficult to see how else D’s officers could disarm him other than forcibly getting him to release the knife once he had refused to voluntarily release it. In my judgment, the force used was reasonable given the circumstances and the failed attempt at de-escalation. Reasonable force was used to deal with the three matters in paragraph 186. It is difficult to see how else the officers could get the knife out of C’s hands other than by de-escalation (which had failed) or by force. (In the case of PC Corden, he did not assist in the arrest as he was incapacitated by the taser). 188. C was committing an affray. PC Corden had reasonable grounds to suspect that he was so acting. The grounds for arrest in ss 24(l)-(3) are all satisfied. The next issue upon the PACE defence is whether there were reasonable ground (sic) to believe that one or more of the s 24(5) conditions were satisfied. 189. PC Crouch in my judgment had reasonable grounds to believe that arrest was necessary to prevent C causing physical injury to himself or others and from suffering physical injury. It is not in dispute that C held a knife to his own throat. He clearly was a danger to himself. He was a danger to others for the reasons given in paragraphs 183 to 185.”
“The court now turns to the malicious prosecution claim. As was said in paragraph 161, there is no issue that D set the law in motion against C and are thus potentially liable should all elements of the tort be established. There is no issue that the prosecution was resolved in C’s favour.”
“There was reasonable and proper cause for the charge under the POA. On any view, C’s behaviour was threatening, by standing in possession of the knife and the officers reasonably apprehended that C would use violence against them. C had not heeded the officers’ attempts to de-escalate the situation by releasing the knife. He could offer no explanation for not releasing the knife while seated. Standing while holding it in their presence is threatening behaviour and was sufficient to instil a reasonable belief that C was intent on unlawful violence. Per Coudrat, PC Emam who was the charging officer had a reasonable basis to believe there was sufficient evidence for such a charge. The Hicks test is made out.”
“Although now otiose upon my finding that there was reasonable and proper cause for the POA charge, I find that D was not motivated by malice by its pursuit. Mr Newcombe’s evidence was not exculpatory of C. It helped D as explained in paragraph 198. PC Emam’s evidence (at paragraphs 117 to 122 above) was unimpressive. The court puts this down to incompetence and not malice. It is a step too far to hold that PC Emam conducted himself with malice towards C, where Mr Newcombe may in fact have given evidence of assistance to the prosecution. No reason or motivation was suggested for PC Emam having any animus towards C. The only officer who had previous dealings with C was Sgt Burke who had no part in the charging decision. Further, C knew Mr Newcombe very well. He knew Mr Newcombe had witnessed the incident and was prepared to give evidence for him. This is not a case of D concealing from C the existence of a witness or exculpatory material of which C was unaware. Further, there were glaring disparities in the accounts given by PCs Corden and Crouch- see in particular paragraph 36. This tells against collusion to try to ‘fit up’ C. They had not dealt with him before. No reason was suggested for any animus of them towards C.”
“(1) A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety. (2) Where 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1). (3) For the purposes of this section a threat cannot be made by the use of words alone. (4) No person of reasonable firmness need actually be, or be likely to be, present at the scene. (5) Affray may be committed in private as well as in public places.”
“What amounts to a threat is essentially a question of fact in each case: I v DPP; M v DPP; H v DPP[2001] UKHL 10 ; [2002] 1 A.C. 285. The mere possession of a weapon, without threatening circumstances, for example where the weapon was concealed, would not be a sufficient threat. But carrying weapons, in this case petrol bombs, was clearly capable of being sufficient: I v DPP, above. Spoken words alone are insufficient: s.3(3). Making a threat in an aggressive tone of voice is not enough: Robinson [1993] Crim. L.R. 581, CA. But setting a dog on police officers with the words “Go on, go on” is sufficient: Dixon [1993] Crim. L.R. 579, CA; as is driving a car at another occupied vehicle: Thind [1999] Crim. L.R. 842, CA.”
“(1) A constable may arrest without a warrant— (a) anyone who is about to commit an offence; (b) anyone who is in the act of committing an offence; (c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence; (d) anyone whom he has reasonable grounds for suspecting to be committing an offence.” “(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.
“(A1) 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. (A2) 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. (1) 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. (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 judge if necessary on facts found by a jury. (2A) Did the arresting officer believe that for any of the reasons mentioned in [s. 24(5) of the 1984 Act] 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. (2B) 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. (3) 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 the principles laid down by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation[1948] 1 KB 223 .”
“… It is fundamental to our adversarial system of justice that the parties should clearly identify the issues that arise in the litigation, so that each has the opportunity of responding to the points made by the other. The function of the judge is to adjudicate on those issues alone. The parties may have their own reasons for limiting the issues or presenting them in a certain way. The judge can invite, and even encourage, the parties to recast or modify the issues. But if they refuse to do so, the judge must respect that decision. One consequence of this may be that the judge is compelled to reject a claim on the basis on which it is advanced, although he or she is of the opinion that it would have succeeded if it had been advanced on a different basis. Such an outcome may be unattractive, but any other approach leads to uncertainty and potentially real unfairness.”
“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.”
“38 I agree with Mr Stagg that the next issue to consider is the appropriate test that this court should apply to DC Andreas’s exercise of his discretionary power under section 24(5) of PACE. I have already touched on this, but I should go somewhat further. It is not for this court to decide as a question of primary fact whether the claimant’s arrest was necessary. Mr Summers did not submit that it was, and basic principles of administrative law indicate otherwise. It would be undesirable in a case such as this to place any judicial gloss on the adjective, “necessary”
“… Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.”
“… PC Crouch, as arresting officer, suspected, and had reasonable grounds to suspect, that the Claimant had committed the offence of affray, in that he had seen the Claimant point a knife in his direction and walk towards him while shouting threats and adopting an aggressive posture. …”
“… PC Crouch, as arresting officer, believed and had reasonable grounds to believe that the Claimant’s arrest was necessary in order to prevent him causing injury to himself or to others, including PC Crouch himself and PC Corden. This belief was based on the Claimant’s own conduct, including holding a knife to his throat and threatening to slit it, and pointing the knife at PC Crouch while moving towards him in an aggressive manner as set out above. The officers had attempted to use steps short of arrest in that they had attempted to speak to the Claimant to persuade him to put the knife down: these efforts were unsuccessful and cut short by the Claimant’s decision to escalate the situation by standing up, pointing the knife at PC Crouch and moving towards him.”
“… The Defendant denies that any force used was more than was reasonably necessary and proportionate in the circumstances as the officers genuinely and reasonably believed them to be, namely that the Claimant was threatening to attack PC Crouch with a large serrated knife.”
“… Further, there were glaring disparities in the accounts given by PCs Corden and Crouch- see in particular paragraph 36. This tells against collusion to try to ‘fit up’ C. They had not dealt with him before. No reason was suggested for any animus of them towards C.”