Chief Constable of Greater Manchester Police v Paul Nugent [2026] EWHC 1465 (KB)

[2026] EWHC 1465 (KB)

Case No KA-2025-MAN-000014

IN THE HIGH COURT OF JUSTICE

Venue MANCHESTER DISTRICT REGISTRY, ON APPEAL FROM THE COUNTY COURT AT MANCHESTER

(Claim No. 073DC035) HHJ Khan – Judgment dated 1 July 2025

Date 16 June 2026

Before

The Honourable Mrs Justice Dias DBE

Between

THE CHIEF CONSTABLE OF GREATER MANCHESTER POLICEAppellant/

MR PAUL NUGENTRespondent/

Ms Cicely Hayward (instructed by GMP Legal Services) for Appellant

Mr George Murray (instructed by Irvings Law LLP) for Respondent

Hearing Hearing date: 19 May 2026

Approved Judgment

This judgment was handed down remotely at 10am on 16 June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

A: Introduction

[1]This is an appeal from the judgment dated 1 July 2025 of HHJ Khan sitting in the County Court at Manchester, in which he awarded the Claimant, Mr Nugent, the sum of £8620 in his claim against the Defendant Chief Constable for damages for wrongful arrest, false imprisonment and trespass. The Chief Constable now appeals against that judgment on the grounds that the judge erred in law in concluding that, although the arresting officer honestly believed that it was necessary to arrest Mr Nugent for the reasons she stated, nonetheless there were objectively no reasonable grounds for that belief.

[2]Permission to appeal was refused by the judge but on 30 October 2025, I granted a renewed application on the papers, on the basis that the appeal had a real prospect of success and that there was in any event a compelling reason for the appeal to be heard as the point raised was one of general importance.

[3]The proceedings below were anonymised as regards the identity of the individual whose complaint led to Mr Nugent’s arrest. At the outset of the appeal there was an application for the anonymity order below to be continued and extended to cover the appeal proceedings. This was not opposed and I accordingly granted it. B: Background

[4]Mr Nugent’s claim arose from his arrest on 7 January 2020 on suspicion of stalking involving fear of violence contrary to s.4A of the Protection from Harassment Act 1997. The alleged victim of the stalking was his former partner, RSL. RSL had accused Mr Nugent of repeated rape, harassment and coercive and controlling behaviour some eight months previously. These allegations had been investigated by the police and Mr Nugent was arrested and interviewed in relation to them. However, RSL subsequently withdrew her support for the rape investigation and in June 2019 the case was closed and marked for No Further Action. A non-molestation order which had been obtained against Mr Nugent in June 2019 was discharged in October 2019, although the precise circumstances in which this occurred were not apparent from the evidence before the court.

[5]On 11 November 2019, RSL reported Mr Nugent to the police again, this time alleging harassment and stalking. Investigations were carried out by PC Kindon and DC Culleton, during the course of which RSL made three witness statements dated between 14-19 November 2019. The statements set out the details of the conduct which she alleged and the impact which she said it had had and was continuing to have on her.

[6]On 25 November 2019, DC Rosie Mount was appointed as investigating officer. In circumstances to which I shall have to return, she decided that Mr Nugent should be arrested. Having contacted him on 6 January 2020 to ascertain that he would be at home on the following day, she went to his address on 7 January 2020 together with a more senior officer, DS Barker, and arrested Mr Nugent on suspicion of stalking with fear of violence. Mr Nugent was taken in a police van to the police station at Bury, where his detention was authorised. He was searched and offered legal representation which he declined. Following an interview later that day, he was released on conditional bail.

[7]Bail was extended on 30 January 2020, and on 17 February 2020, Mr Nugent was informed that the investigation into the rape allegation was to be re-opened. On 20 April 2020, Mr Nugent’s conditional bail was cancelled and on 9 June 2020, the Chief Constable obtained an Interim Stalking Protection Order (“ISPO”) under the Stalking Protection Act (the “SPA”) which prevented Mr Nugent from contacting RSL, posting comments on social media, going to certain locations or taking photographs of RSL.

[8]On 26 March 2021, the investigation into the alleged stalking of RSL was marked “no further action”. On 10 April 2021, the investigation into the alleged rape was likewise marked “no further action”. On 26 July 2021, Mr Nugent was arrested for breach of the ISPO and on 3 March 2023, he issued the claim for damages which has given rise to this appeal. C: The trial

[9]The trial took place before HHJ Khan in May and June 2025. It was common ground that Mr Nugent’s claims for trespass and unlawful detention effectively stood or fell with the claim for wrongful arrest, in the sense that if the arrest was wrongful, it necessarily followed that the trespass into his flat and his subsequent detention were unlawful.

[10]Unusually, the arresting officer, DC Mount, did not give oral evidence at trial. Unfortunately, she was not medically fit to do so, having been off work on sick leave and having also sustained an assault on 1 May 2025.

[11]The Chief Constable’s legal advisers only became aware of DC Mount’s illness towards the end of April 2025, whereupon an application was made to adjourn the trial. However, no supporting medical evidence was available when the application was issued, and it was opposed on behalf of Mr Nugent. Very shortly before trial, a formal medical report was obtained and the adjournment application was withdrawn on the first day of the hearing on the basis that Chief Constable could now properly tender DC Mount’s two written statements as hearsay evidence and invite the judge to place weight on them accordingly.

[12]The trial proceeded on that basis, with both parties making submissions as to the weight to be accorded to DC Mount’s written evidence. In particular, Mr Murray, who represented Mr Nugent both below and before me, indicated a large number of matters on which he would have wished to cross-examine her, although he did not himself apply to adjourn the trial on Mr Nugent’s behalf.

[13]In a detailed and careful judgment, the judge accepted – in the absence of any evidence to the contrary – that DC Mount subjectively believed that it was necessary to arrest Mr Nugent for a legitimate purpose. However, he held that there were objectively no reasonable grounds for that belief, with the result that the arrest was wrongful. It followed that Mr Nugent’s claim succeeded. It is this conclusion which the Chief Constable seeks to challenge. D: The test on appeal

[14]By virtue of CPR 52.21, an appeal proceeds by way of review rather than re-hearing, unless it would be in the interests of justice in the circumstances of the particular case to hold a re-hearing. I can see nothing here to justify a re-hearing and neither party suggested otherwise.

[15]Pursuant to CPR Part 52.21(3), an appeal will be allowed if the decision below was either wrong, or was unjust because of a serious procedural or other irregularity. No question of irregularity arises, let alone a serious irregularity, and accordingly in order for the appeal to succeed, Ms Cicely Hayward, who appeared for the Chief Constable, must satisfy me that the decision of HHJ Khan was wrong.

[16]It was not in dispute that the principles to be applied by a court on appeal include the following:(a) The appeal court should not interfere with a decision on a question of fact unless the court below has gone plainly wrong, i.e., its decision cannot reasonably be explained or justified;

(b) On the other hand, where a question of law is concerned, it is for the appeal court to reach its own conclusion;

(c) Where the appeal concerns an evaluative decision by the judge, the appeal court should exercise “appropriate restraint” and will generally only interfere where an error of principle is involved, or where the evaluative decision falls outside the bounds of what could reasonably and properly be decided: Assicurazioni Generali SpA v Arab Insurance Group (B.S.C.)

[2002] EWCA Civ 1642

[17]The last of these principles was applied by Thornton J in Commissioner of Police of the Metropolis v MR,

[2019] EWHC 888 (QB)

in the specific context of an appeal raising a similar issue to the present. At [30] she stated as follows:

“A decision on the existence of reasonable grounds for arrest … is treated as a question of law rather than of fact, although it will involve an evaluation of the facts and, in many cases, a weighing of different factors. The question is one on which an appellate court has to reach a conclusion of its own, rather than limiting itself to deciding, for example, whether the trial judge’s conclusion was plainly wrong. If, however, the trial judge has approached the task correctly, it will generally be appropriate to place weight on their assessment, given their proximity to the evidence and their better overall “feel” for the case. An appellate court is likely to be slow in practice to interfere with the trial judge’s conclusion: Alford v Chief Constable of Cambridgeshire Police [2009] EWCA Civ 100 at [33].”

E: Wrongful Arrest

[18]Again, there was little dispute between the parties as regards the applicable law concerning wrongful arrest so far as relevant to this case. Thus:(a) An arrest is itself an imprisonment and the legal burden of proof is on the Chief Constable to demonstrate that the arrest was lawful;

(b) Section 24 of the Police and Criminal Evidence Act 1984 (“PACE”) provides that a police officer may arrest a person where: (i) they have reasonable grounds to suspect that the person in question has committed an offence; and (ii) they have reasonable grounds for believing that it is necessary to arrest that person for one of a number of prescribed statutory reasons;

(c) The prescribed reasons include (i) the protection of a child or other vulnerable person from the person being arrested; and (ii) allowing the prompt and effective investigation of the offence or the conduct of the person in question.

[19]In Parker v Chief Constable of Essex Police,

[2019] 1 WLR 2238

, the Court of Appeal at [59] summarised the elements for establishing a lawful arrest as follows: “(A1) Did the arresting officer suspect that an offence had beencommitted? The answer to this question depends entirely on the ﬁndingsof fact as to the officer’s state of mind. (A2) Assuming the officer had the necessary suspicion, did thearresting officer have reasonable grounds for that suspicion? This is apurely objective requirement to be determined by the court.(1) Did the arresting officer suspect that the person who was arrestedwas guilty of the offence? The answer to this question depends entirely onthe ﬁndings of fact as to the officer’s state of mind.

(2) Assuming the officer had the necessary suspicion, did the arrestingofficer have reasonable grounds for that suspicion? This is a purelyobjective requirement to be determined by the judge if necessary on factsfound by a jury. (2A) Did the arresting officer believe that for any of the reasonsmentioned in section 24(5) of the 1984 Act it was necessary to arrest theperson in question? The answer to this question depends entirely on theﬁndings of fact as to the officer’s state of mind. (2B) Assuming the officer had the necessary belief, were therereasonable grounds for that belief? This is a purely objective requirementto 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, thenthe officer has a discretion which entitles him to make an arrest and inrelation to that discretion the question arises as to whether the discretionhas been exercised in accordance with the principles laid down by LordGreene MR in Associated Provincial Picture Houses Ltd v WednesburyCorpn

[1948] 1 KB 223

.’’

[20]In this connection, it is the state of mind of the arresting officer which is relevant: O’Hara v Chief Constable of the Royal Ulster Constabulary,

[1997] AC 286

, 302G-H:

“… it is the facts known by or the information given to the officer who effects the arrest or detention to which the mind of the independent observer must be applied. It is this objective test, applying the criterion of what may be regarded as reasonable, which provides the safeguard against arbitrary arrest and detention. The arrest and detention will be unlawful unless this criterion is satisfied.”

See also R(L) v Chief Constable of Surrey Police,

[2017] 1 WLR 2047

at [39].

[21]While the test of ‘necessity’ requires more than simple desirability or convenience, it is not the case that the arresting officer needs to be satisfied that there is no other viable alternative. Nor does it mean that arrest can only ever be used as a last resort, or that the officer must have considered all possible alternatives.

[22]In Re Alexander, [2009] NIQB 20, the High Court of Justice in Northern Ireland stated as follows in a case where the issue was whether the police should have considered the possible alternative of a voluntary interview:

“[18] … We consider that the requirement that the constable should believe that an arrest is necessary does not signify that he requires to be satisfied that there is no viable alternative to arrest. Rather, it means that he should consider that this is the practical and sensible option. We can illustrate this with an example. If an officer considers that a person’s presence at a police station is essential for the purpose of questioning, he may decide that it is necessary to arrest even though it is theoretically possible that the individual would agree to attend voluntarily. Thus, if he concludes that the person to be questioned might initially agree to attend for questioning but is likely to refuse to remain if the questioning becomes difficult for him, he may have reasonable grounds for deciding that the arrest is necessary from the outset. [19] Given the scope of 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.”

[23]To similar effect is the decision of the Court of Appeal in Hayes v Chief Constable of Merseyside,

[2011] EWCA Civ. 911

;

[2012] 1 WLR 517

where

Lord Justice Hughes (as he then was) stated as follows:

“[34] 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. … [39] … the challenge [to the officer’s belief] … 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. [40] That also seems to me to be clearly the conclusion which best represents the balance which the law must strike in this area between practicable policing and the preservation of the liberty of the subject. The circumstances of the present arrest were comparatively relaxed. It is by no means always so. To require of a policeman that he pass through particular thought processes each time he considers an arrest, and in all circumstances no matter what urgency or danger may attend the decision and to subject that decision to the test of whether he has considered every material matter and excluded every immaterial matter, is to impose an unrealistic and unattainable burden. Nor is it necessary. The liberty of the subject is amply safeguarded if the rule is as Mr Beer contends, namely: (1) the policeman must honestly believe that arrest is necessary, for one or more identified section 24(5) reasons; and (2) his decision must be one which, objectively reviewed afterwards accordingly to the information known to him at the time, is held to have been made on reasonable grounds.”

[24]The gist of these authorities is reflected in the guidance on the statutory power of arrest set out in paragraphs 2.6-2.8 of Code G of PACE:

“2.6 … [the constable must] examine and justify the reason or reasons why a person needs to be arrested … for an offence for the custody officer to decide whether to authorise their detention for that offence. 2.7 … The criteria [set out in section 24 of PACE] are exhaustive. However, the circumstances that may satisfy those criteria remain a matter for the operational discretion of individual officers… 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.”

[25]I was referred by both Ms Hayward and Mr Murray to a variety of other cases which they variously suggested were more or less analogous to the present. In truth, I derived limited assistance from this exercise. It is quite clear that each decision is fact-specific and must turn only on the application of the principles set out above to its particular circumstances. F: The evidence bearing on necessity

[26]On the day that Mr Nugent was arrested, DC Mount prepared a short MG11. This stated simply that “the necessity for the arrest was for the preservation of evidence, to protect a vulnerable person and to allow for the prompt and effective investigation of the offence via interview.” This was amplified in her witness statement given some five years later (proceedings having only been commenced in 2023) where she said that she had spoken to RSL (albeit without saying when) and considered that there was strong evidence that Mr Nugent’s stalking and harassment was ongoing. RSL had reported that she was feeling considerable stress and anxiety as a result of his behaviour. “After having reviewed all of the evidence in the case I decided that the Claimant should be arrested in connection with this matter. I had reasonable grounds to suspect that an offence had been committed and reasonable grounds to suspect that Claimant was the one guilty of the offence that had been committed. That offence being stalking with ta fear of violence.I believed that it was necessary to arrest him in order to carry out a prompt and effective investigation of the offence, which was to include a search of his premises to search for evidence relating to the offence, and also to interview him and obtain his account. I also believed that the arrest was necessary to protect vulnerable a person (the Complainant in the case). In cases of stalking the risk to the Complainant if often high and their safety needs to be considered. It appeared to me that the Complainant was vulnerable and that arresting the Claimant may deter him from continuing his behaviour, which appeared to be ongoing, preventing further offences and protecting the Complainant from serious harm. Arrest would also allow for the consideration of bail conditions being imposed.”

[27]She then went on to say that she discussed her intentions with DS Barker, who agreed that it was appropriate to arrest Mr Nugent.

[28]DS Barker was a more senior officer. She was also Chair of the local Multi-Agency Risk Assessment Conference (“MARAC”) which was a forum for sharing information about the highest-risk domestic abuse cases between partner agencies for safeguarding purposes. DS Barker was already aware of Mr Nugent through her role in MARAC. In her written statement, she said that she had discussed DC Mount’s intention to arrest Mr Nugent for stalking beforehand:

“I fully agreed that this was a step that needed to be taken. Given the evidence there was clearly a reasonable suspicion that that [sic] Claimant was stalking his former partner. In addition, I believed that it was necessary to arrest the Claimant. I understand that DC Mount has documented that the necessity reasons for the arrest were for a prompt and effective investigation and to protect a vulnerable person. I agree that the arrest was necessary for these reasons. In relation to the investigation I considered that it was important to obtain the Claimant’s account via interview and that also a search of the Claimant’s property as required in order to seize his electronic devices and other evidence. The need to conduct such a search is entirely standard procedure in relation to a case of this nature. I also consider that the arrest was necessary in order to protect the Claimant’s former partner, for example by considering bail conditions upon release.”

[29]In the event, for the reasons set out at paragraphs 10-12 above, only DS Barker gave oral evidence. She had by then retired and was cross-examined by Mr Murray to a very limited extent, including a potential conflict of interest arising from her position with MARAC. It was also put to her that the grounds for obtaining an ISPO existed in November 2019 and that an ISPO could have been applied for at that time. I shall have to return to this later. Importantly, however, she was not cross-examined at all on the reasons for her belief that Mr Nugent’s arrest was necessary.

[30]As already stated, the judge was satisfied that all the requirements for a lawful arrest as identified in Parker (see paragraph 19 above) were satisfied, save for 2B, namely the objective reasonableness of DC Mount’s subjective belief that it was necessary to arrest Mr Nugent.

[31]The basis for his conclusion was, in broad summary, that the Chief Constable had not led evidence:(a) That either DC Mount or DS Barker had considered less intrusive alternatives to arrest, in particular by issuing a search warrant and interviewing Mr Nugent voluntarily “coupled with” an ISPO;

(b) Explaining the lapse of time between DC Mount’s appointment as investigating officer on 25 November 2019 and Mr Nugent’s arrest on 7 January 2020;

G: Discussion

[32]Ms Hayward advanced five grounds of appeal on behalf of the Chief Constable which I summarise as follows: Ground 1: In concluding that the arrest was not objectively necessary for the reasons just stated, the judge erred by treating arrest as an option of last resort where there was no viable alternative. Ground 2: The judge erred(i) in holding that the possibility of applying for an ISPO was a material factor, since the SPA only came into force two weeks after Mr Nugent’s arrest; and

(ii) in placing weight on the failure of the witness evidence to refer to consideration of an ISPO when it was not an available option at the date of arrest and had not been foreshadowed anywhere in Mr Nugent’s case prior to trial; Ground 3: The judge erred in misconstruing the evidence and failing to give any weight to the unchallenged evidence that DC Mount had discussed the proposed arrest beforehand with a more senior officer; Ground 4: The judge erred by confusing subjective and objective tests when assessing the impact of any delay on the objective reasonableness of DC Mount’s belief that arrest was necessary; Ground 5: The judge erred in taking an inconsistent approach to the failure to cross-examine DS Barker. On the one hand, he held that it was surprising she had not been cross-examined on the grounds for suspecting Mr Nugent to have committed an offence and had relied on her unchallenged evidence on this point as corroborative of DC Mount’s evidence of subjective belief. On the other hand, he failed to take the same approach with regard to DS Barker’s unchallenged evidence in relation to necessity to arrest.

[33]These were all presented by Ms Hayward as errors law, but I agree with Mr Murray that they mainly involve challenges to the judge’s evaluative decision on the facts. There is also a degree of overlap between them and I will therefore take Grounds 2, 3 and 5 together. Ground 1

[34]Ground 1 asserts that the judge erred in law in effectively treating the question of necessity as if arrest could only be the option of last resort. However, the nub of his reasoning was that the objectives of an arrest as articulated by DC Mount could have been achieved by a combination of a search warrant and a voluntary interview coupled with an application for an ISPO. I agree with Mr Murray that this does not disclose any error of law. The judge directed himself impeccably as to the appropriate law. He referred to all the relevant authorities which make it clear that it is incorrect to regard arrest as only being reasonably necessary if there is no other option available. It cannot plausibly be argued that he was under any misapprehension in this regard.

[35]I therefore reject this ground of appeal. Grounds 2, 3 and 5

[36]It is the Chief Constable’s challenge to the judge’s factual findings and his evaluation of those facts as found which lie at the heart of this appeal, in particular whether DC Mount failed to take into account any “obviously material [considerations], including any practical alternatives which are less intrusive than arrest": see ST v Chief Constable of Nottinghamshire,

[2022] EWHC 1280 (QB)

at [93] per Cotter J.

[37]As Lord Justice Hughes stated in Hayes (paragraph 23 above), the law must strike an appropriate balance between practicable policing and the liberty of the subject. Obviously, there was no question of imminent or immediate danger here, so it was not a case of acting in the heat of the moment. On the contrary, DC Mount had the luxury of more considered reflection and I bear that well in mind.

[38]Her stated objectives in arresting Mr Nugent are set out at paragraph 26 above. There is nothing in the judgment to suggest that the judge considered these objectives illegitimate or unlawful. On the contrary, his assessment was that they could be achieved by less intrusive means, namely a combination of a search warrant, voluntary interview and an ISPO. It is clear from his judgment, however, that he regarded these as a package rather than individual alternatives. It is therefore obvious that the availability of an ISPO as a sensible and practical measure at the date of arrest is a critical matter. If it was not available, then the judge does not suggest that a search warrant and voluntary interview alone would have met DC Mount’s objectives, or that he would have found an objective lack of reasonable grounds for some other reason.

[39]I start, first, with the fact that this is not a case where there was no evidence before the court on the question of necessity at all, as in Richardson v Chief Constable of the West Midlands,

[2011] 2 Cr. App. R. 1

. As already stated, DC Mount had set out her reasons for considering that an arrest was necessary in both her MG11 and her witness statement.

[40]Secondly, the mere absence of evidence as to alternative options does not automatically mean that DC Mount’s belief in necessity must be regarded as lacking reasonable grounds. As made pellucidly clear in Hayes, the only consequence of failing to give evidence is the risk of a finding that, objectively, there were in fact no reasonable grounds for her belief. Her decision is one which falls to be objectively reviewed after the event according to the information known to her at the time. However, if, on the basis of that information and taking into account all material circumstances which should have been considered, there were objectively reasonable grounds for that belief, that remains the case whether or not she actually applied her mind to all of the material circumstances.

[41]The matter can be tested in this way. If, in fact, there were no sensible or practical less intrusive alternatives to arrest, it could hardly be said that Mr Nugent’s claim should succeed merely because the Chief Constable did not lead evidence to say this in terms. That would be a triumph of form over substance. Equally, if there were six options falling for consideration on the basis of the information known to DC Mount which, when all were taken into account, disclosed reasonable grounds for her belief, the position is no different simply because she failed to consider three of them. Objectively, there were reasonable grounds and that was always the case.

[42]Thirdly, Mr Nugent was arrested on 7 January 2020. The question for the court was therefore whether DC Mount had reasonable grounds at that date for believing that an arrest was necessary. However, there is no dispute that the SPA was not in force on 7 January 2020 and did not come into force until 20 January 2020. An ISPO was accordingly not even a theoretical option on 7 January 2020. The judge’s view was that DC Mount should have considered delaying matters until the Act came into force but that begs the question of whether, on 7 January 2020, anyone knew that it would come into force on that date. The relevant commencement order was only made two days after Mr Nugent’s arrest, i.e., on 9 January 2020. The police would accordingly have been faced with a situation where Mr Nugent was reportedly engaged in ongoing behaviour causing stress and anxiety to a vulnerable person and it was completely uncertain how long it would be before the Act became operative and the option of applying for an ISPO became available. On top of that, as with any new piece of legislation, there would have been inevitable uncertainty as to how it might be approached by the courts in practice and whether an application would even have been successful. If not, then valuable weeks would have been lost.

[43]Fourthly, the argument that there were no reasonable grounds for DC Mount’s belief because alternatives to arrest were available was nowhere pleaded on behalf of Mr Nugent. Nothing was said in his Particulars of Claim or Reply and the point was not mentioned in Mr Murray’s skeleton argument for trial. I come back to the cross-examination of DS Barker.

[44]If the issue of necessity had not been addressed at all in the Chief Constable’s pleadings or evidence, then I agree that Mr Murray could quite properly have refrained from cross-examining on the point. If the party bearing the burden of proof fails to adduce any evidence at all on a pivotal point, then the opposing party is under no obligation to cross-examine to fill the gap. However, that was not this case. To the contrary, there was evidence on the point before the court.

[45]In this regard, it is important to bear in mind the distinction between the legal and evidential burden of proof. If it was to be alleged on behalf of Mr Nugent that DC Mount’s belief was unreasonable for reasons x, y or z, then my clear view is that this should have been foreshadowed in a pleading, or at the very least in the skeleton arguments. This is not to place the legal burden of proof on Mr Nugent. It is simply a question of identifying the issues for trial and ensuring that the other party is not taken unfairly by surprise. This is particularly important where a critical witness is unable to give evidence in person.

[46]As a matter of basic fairness, therefore, I consider that if Mr Murray wished to run an argument at trial that DC Mount should have considered delaying matters by three weeks until the SPA came into force, the point should have been clearly articulated and advance notice given, since it would obviously have been critical to explore whether in fact this was a sensible and practical alternative. If the point had been raised on the pleadings, the Chief Constable would have had a proper opportunity to deal with it in evidence. If it had even featured in Mr Murray’s skeleton, he would have had the option of either maintaining his application for an adjournment or of attempting to cover the point in the examination-in-chief of DS Barker. I have little doubt that Ms Hayward and the Chief Constable would have taken a very different attitude to the withdrawal of the adjournment application had they known that the point was to be taken. Either way, the Chief Constable would had had a fair opportunity to obtain evidence to address the point. Leaving it until the cross-examination of DS Barker was simply far too late.

[47]I regret that I also consider that the manner in which the issue was ventilated at trial left much to be desired. Leaving aside the fact that DS Barker had no advance notice that an ISPO would be mooted as a possible alternative to arrest on 7 January 2020, she was cross-examined on the positive basis that an application could have been made in November 2019. There was no attempt to draw the court or the witness’ attention to the fact that, as at 7 January 2020, not only was the Act not in force, but the commencement order bringing it into force on 20 January 2020 had not even been made. This was inappropriate, unfair and thoroughly misleading.

[48]Mr Murray very properly accepted without hesitation or demur that he should have checked the position before putting his questions. He said that he had no intention to mislead either DS Barker or the court and I accept that without reservation. He also said that the issue had only arisen at all because of DS Barker’s own evidence about her involvement in obtaining an ISPO against Mr Nugent. However, I cannot accept this as an adequate explanation. DS Barker’s written evidence in her witness statement dated 19 December 2024 was that she had been involved in an ISPO application in June 2020. If a point was to be taken about the availability of an ISPO on 7 January 2020, some five months earlier, it should have been raised before trial, or at least properly investigated on behalf of Mr Nugent before being advanced. I have read the transcript of DS Barker’s cross-examination and she said nothing about an ISPO until specifically asked by Mr Murray about this passage in her written evidence. In my view, springing the point on a witness without prior notice is unfairly prejudicial, particularly when it is put on a wholly false basis by reason of a failure to investigate the point properly. The whole purpose of pleadings is precisely to avoid this kind of situation arising.

[49]If the judge had appreciated, not only that the Act was not in force on 7 January 2020, but that no-one could have known at that date precisely when it would come into force, I have no doubt that his whole approach would have been very different. It is true that both parties had the opportunity to investigate the position fully following the hearing and that he was informed before hand down that the Act did not come into force until 20 January 2020. To that extent, it might be said that that the Chief Constable could further have ascertained that the commencement order also had not been made at 7 January 2020. However, the same is true of Mr Nugent and since it was a point raised on his behalf it was incumbent on his legal representatives to ensure that it was put before the judge on the correct basis. In any event, in my judgment, primary responsibility for the point not being appropriately explored at trial lies squarely on the Claimant’s side of the fence. In circumstances where it was not pleaded, the Chief Constable quite reasonably took the decision to withdraw his adjournment application and proceed in the absence of DC Mount. The result was that the availability of an ISPO only arose for the judge’s consideration at all on the basis of an (unintentionally) unfair cross-examination on the false premise that an ISPO could have been obtained in November 2019. Although he was subsequently informed of the actual commencement date, he was not told that even that date had not been set as at 7 January 2020.

[50]I therefore consider that it would be wholly unjust to preclude the Chief Constable from relying in this appeal on an argument that an ISPO was in fact not an available alternative at the date of arrest. This is not a question of allowing the Chief Constable to treat the trial as a dress rehearsal, as cautioned against by Lewison LJ in Fage UK Ltd v Chobani UK Ltd,

[2014] EWCA Civ 5

at [114]. That would only be an appropriate criticism to level had the Chief Constable been given a proper opportunity to address the point at trial. In this case, he quite clearly was not.

[51]For this reason, I consider that the judge erred - through no fault of his own, it must be emphasised – in approaching the evidence on the basis that the availability of an ISPO should have been covered in the evidence because (as he said) it was one of the matters “which would have been apparent from a consideration of the documents, and on an analysis of the relevant sequence of events.” On the facts as we now know them to be, this does not follow. It was by no means apparent that on 7 January 2020, an ISPO was a viable alternative at all, and it certainly cannot be said that on the information known to DC Mount it was an obviously material consideration.

[52]Fifthly, what I have held to be an inadvertently flawed approach to the evidence, is compounded by three further matters:(a) The judge’s finding that there was no attempt by DC Mount to speak to RSL is contrary to the unchallenged written evidence of DC Mount that she had spoken to RSL prior to making the arrest. This must simply have been overlooked by the judge. Mr Murray suggested that they may only have spoken on the morning of the arrest itself. However, I consider this inherently unlikely. DC Mount’s evidence was that she had reached a decision to arrest which she then discussed with DS Barker on or before 6 January 2020. It is also apparent from the evidence that all of the messages which RSL complained had been sent by Mr Nugent between 12 and 30 December 2019 were put to him by DC Mount in interview on 7 January 2020 itself. Since RSL did not make any written statement about these messages until 9 January 2020, DC Mount can only have known about them through having spoken to RSL herself. I was informed after circulation of this judgment in draft that Mr Nugent was also asked in interview about a message sent in the early hours of 7 January 2020 itself. It is unfortunate that this was not more fully explored at the hearing, but I cannot regard it as undermining the inference that DC Mount spoke to RSL between 30 December 2019 and 6 January 2020, even if they also spoke again on the morning of 7 January.

(b) Ms Hayward makes a further point that the judge took one of DS Barker’s answers in cross-examination out of context. DS Barker was asked in re-examination about the situation where there were parallel possibilities of arresting or obtaining a civil order and her answer was that arrest and bail conditions were the “usual pathway”. The judge took this to mean that arrest was the default position and relied on it as support for his conclusion that no consideration had been given to any alternatives. However, DS Barker’s answer was given in response to a question about the sequencing of events where civil proceedings were being considered alongside criminal proceedings. It was not directly relevant to the situation where, as here, civil proceedings were not viable at all as at the date of arrest. There is thus some force in Ms Hayward’s criticism, although it adds little to the points already considered.

(c) Finally, there is the suggested inconsistency in the judge’s approach to the lack of cross-examination of DS Barker. The judge held that it was surprising that she had not been cross-examined on her grounds for suspecting Mr Nugent of having committed the offence. He said that in the absence of any challenge, he had no reason to doubt her evidence and in his view it corroborated DC Mount’s evidence and this was “sufficient for me to draw the inference that what was in the mind of DC Mount was that there was reasonable suspicion that Mr Nugent had committed the offence of stalking with fear of violence.” Ms Hayward complains that he should have drawn an equivalent inference in relation to DC Mount’s belief that it was necessary to arrest Mr Nugent. Mr Murray, on the other hand, submitted that the judge was correct to take a different approach because the test of reasonable suspicion sets a lower bar than for reasonable belief. But this does not entirely meet the point. It is true that the court is only concerned with the reasonableness of what was in DC Mount’s mind. It is also true that that Mr Murray was under no obligation to cross-examine DS Barker as to the reasonableness of DC Mount’s belief and that the reasonableness of DS Barker’s own belief is technically irrelevant. However, there are risks attendant on a tactical decision of that nature. DS Barker, who was the senior officer, said in her statement that she considered it necessary to arrest Mr Nugent for the same reasons given by DC Mount. “Reasonable grounds” is a matter of objective assessment and if those reasons were not supported by reasonable grounds, then that was as true for DS Barker as it was for DC Mount. Conversely, if there were reasonable grounds for DS Barker’s belief, there must necessarily have been reasonable grounds for DC Mount’s belief. As it was, DS Barker’s evidence was not challenged by Mr Murray and accordingly was capable of supporting the reasonableness of DC Mount’s belief, the more so when DS Barker was a senior officer who had been specifically consulted by DC Mount.

[53]I accept that an appellate court should be slow to interfere with findings of fact made by a trial judge and should exercise appropriate restraint before overturning evaluative decisions. Nonetheless, the primacy accorded to a trial judge’s factual findings is generally based on the fact that the judge has had the inestimable benefit of seeing and hearing the witnesses give evidence. The position here was rather different. The critical witness could not give evidence and a deliberate decision was taken not to cross-examine the only other witness who could have assisted the court. In those circumstances, I feel rather less diffidence in re-opening the issue than I might otherwise have done.

[54]As it is, I consider that this is a case where the judge, through no fault of his own, approached the question of reasonable grounds on the basis of incorrect evidence regarding the availability of an ISPO and that it is therefore open to me to review his findings. I am satisfied, for the reasons given above, that his decision was wrong and that there was no proper basis for concluding that an ISPO was a sensible or practical alternative at the date of arrest. It cannot therefore be said that it was an obviously relevant circumstance which should have been taken into account. The judge’s conclusion that there were no reasonable grounds for DC Mount’s belief was firmly based on the availability of an ISPO in conjunction with a search warrant and voluntary interview. Once the possibility of an ISPO fell away, there is no other basis for saying that her belief was not based on reasonable grounds and there is nothing in the judgment to suggest that this was the judge’s view. In particular, he did not suggest that a search warrant and voluntary interview would have been sufficient on their own.

[55]Given these findings, it is unnecessary to consider the further submission made by Ms Hayward to the effect that even if Mr Nugent was entitled to say that the police should have waited until an ISPO was available, the judge wrongly failed to take account of the operational impracticality of proceeding in this way for the reasons given in oral evidence by DS Barker. I will only say that Ms Hayward made a number of points in this regard which prima facie had considerable plausibility. They were not, however, explored in evidence – which illustrates yet again why the question of an ISPO should have been raised in advance by Mr Nugent if it was going to be pursued. Ground 4

[56]I do not accept Ms Hayward’s submission that the question of delay is relevant only to DC Mount’s subjective belief and not to the objective reasonableness of her belief. In my view, Mr Murray is correct that the question of objective reasonableness concentrates primarily on the facts known to DC Mount as arresting officer and that the reasons for any delay self-evidently bear on the question of whether she could reasonably have believed that an arrest was necessary.

[57]That said, there was no evidence before the court at all about delay and, in sharp contrast to the availability of an ISPO, the question of delay was clearly pleaded in Mr Nugent’s Reply. It is therefore entirely fair to have expected delay to be addressed in evidence and I reject the suggestion that the judge erred in confusing subjective and objective tests in this regard.

[58]In any event, I cannot see that delay played any part in the judge’s reasoning on objective reasonableness at all. On the contrary, he found that DC Mount genuinely believed it necessary to arrest Mr Nugent and nowhere did he say that because of the delay she could nonetheless have had no reasonable grounds for that belief. As I have already said, his conclusion on reasonable grounds was based solely on the fact that DC Mount’s objectives could have been achieved in less intrusive way.

[59]Ground 4 accordingly goes nowhere and is rejected. H: Conclusion

[60]It follows from my conclusions on Grounds 2, 3 and 5 that this appeal must be allowed. The judge was wrong to find that an ISPO was in fact an available, sensible or practical less intrusive alternative to arrest (when coupled with a search warrant and voluntary interview) and there is no other basis for suggesting that DC Mount’s belief in the necessity of arrest was not objectively reasonable.

[61]The reasonableness of DC Mount’s belief is an objective question which the appeal court is as well-placed to determine as the trial judge. In the circumstances, no useful purpose would be served by remitting the case to HHJ Khan for reconsideration in the light of this judgment. Accordingly, the judgment below is set aside and Mr Nugent’s claim is dismissed.