“was entirely influenced by and dependent upon what she was told by PC Bains. If PC Bains deliberately lied, as alleged, then Ms Copeland’s arrest, which was attributable to PC Bains’ allegation andnothing else, was unlawful, and, there being no issue as to causation, resulted in an imprisonment which was false.” (Emphasis added.)
“It was argued that because a person who wrongfully directs another to arrest a third is liable in tort to the arrested person for damages, it follows that the existence and reasonableness of the suspicion of the senior officer who gave orders to the arrestor to arrest the plaintiff must be relevant. This is in my view a non sequitur. It is of course correct that if A orders B (whether B be a policeman or not) to arrest C, it is an imprisonment by A as well as B, and if it is unjustified C can sue A for false imprisonment: see such cases as Wheeler v Whiting (1840) 9 C.&P. 262. I do not consider that it follows that one has to consider in the context of arrests under section 12 of the Act of 1984 the mind of anyone but the actual arrestor. In my view the wording of section 12(1) is intended to refer only to the arrestor himself, and it is his suspicion alone which is material, and not that of any person by whom he was given instructions.”
“… if the briefing officer has told the arresting officer that there is reliable information when there is not, the Chief Constable may become vicariously liable for a wrongful arrest – but on behalf of the briefing officer; not of the arresting officer.”
“Even… when, as here, the entry of itself provides sufficient – indeed ample – justification for an arrest, that may not leave the aggrieved citizen entirely without remedy. Certainly it would defeat a claim for wrongful arrest. Perhaps, however, a claim in negligence would lie against the officer making the entry in the first place (or perhaps for failing later to remove it) if it could be established that he had no proper basis for ever having made it. In considering any such claim, of course, one would recognise that the computer entry of itself was likely to lead to just such an arrest as occurred in the present case…. That, however, is a question for the future; no such basis of claim was advanced here.”
“86. On one view, it might be thought that the state of mind of the informant should be irrelevant to the (apparently) objective question as to whether they had, or had not procured an arrest. But there are obviously sound reasons why a malicious informant who knowingly gives false information to the police (which they are not in a position to check) with the intention of bringing about an innocent person’s prosecution and conviction should be held to account. Similarly, it might be thought, if an individual maliciously procures an arrest… The position is otherwise it seems to me in a case where a person (such as the store detective in Davidson) gives information in good faith which is merely mistaken. Whilst the Claimant does not accept the bona fides of the Defendants in these proceedings, nonetheless it is not suggested on his behalf, that he must prove malice in order to establish a prima facie case. 87. It seems to me therefore the test I am bound to apply in determining whether the Defendants procured the Claimant’s arrest is that identified in Davidson. Were the Defendants responsible for the Claimant’s arrest by directing or requesting, or directly encouraging the officers to arrest the Claimant; and in that respect did they go beyond laying information before police officers for them to take such action as they saw fit?”
“27. … The strike may have caused, indeed foreseeably caused, the governor to decide not to let the claimant out of his cell on 29 August, but that is a different thing. Of course, it must have been apparent to the officers that it was likely, indeed probably inevitable, that as a result of the strike prisoners would enjoy less freedom of movement within the confines of the prison than if there had been no strike. However, it is equally true that it must have appeared likely, indeed almost inevitable, to the store detective in the Davidson case that, once she laid credible information before a police constable that she had just seen the plaintiff shoplifting, the constable would arrest the plaintiff. Indeed, it was no doubt her intention and wish that the plaintiff be arrested, whereas there is no suggestion of a wish or intention on the part of the officers in the present case that the prisoners in the prison, let alone the claimant specifically, be confined to their cells as a result of the strike.”
“35. The principle is therefore recognised at common law that there may be false imprisonment by A, although it was B who took the person into custody and B acted lawfully, provided that A directly caused B’s act and that A’s act was done without lawful justification. … 37. In the present case the hospital trust acted lawfully in detaining M by virtue of section 6(3), just as the police officers acted lawfully in the Davidson case… 38. However, it does not follow from the fact that the hospital managers detained M in the lawful exercise of their power under section 6(3) that he was not wrongfully deprived of his liberty by the unlawful conduct of the AMHP. On the facts of the Davidson case there was no liability on the part of the store detective because she did not directly request or encourage the police to arrest the claimants. By contrast, it would be difficult to imagine a more direct case of one person wrongfully causing another to detain someone than the present case. The AMHP made an unlawful written application to the hospital trust for M’s admission; and acting on the facts stated in the application, as section 6(3) authorised it to do, the hospital trust detained him. 39. It follows that, on ordinary principles of common law, M’s detention was unlawful inasmuch that it was brought about directly by the conduct of the AMHP for which she had no lawful justification, notwithstanding that she acted in complete good faith…”
“224. This… explains why we are unable to accept the case for [the claimant] that because the police and the SFO worked closely and hand in hand and therefore became part of a joint investigating team, there ought to be an exception to the O’Hara principle…”
“231. The position was therefore that, if the facts supported that contention, [the claimant] could contend that his arrest was procured or directly requested by the SFO and so it should be liable for false imprisonment, which is a tort of strict liability and which does not require proof of malice. That would meet the justice of the case in the light of the respective responsibilities of the police and the SFO. 232. It is important to note that Mr Eadie accepted on behalf of the SFO that the City of London police were acting as a conduit for the SFO or as their agents. To the extent there were issues in relation to the lawfulness of the arrest, Mr Eadie accepted that was the responsibility of the SFO. 233. In addition, if a claimant could prove that a third party procured an arrest maliciously and without reasonable and probable cause, an action for malicious arrest could also be brought…. 234. We are therefore unable to accept that there is any basis for contending that there should be an exception to the O’Hara rule of the kind contended for by Lord Macdonald.”
“in a deliberately boisterous way, and, during the time they were being held after arrest, to place covert surveillance devices in Kanta House whilst seizing documents there… They would then be released, in the hope that their arrest and questioning would ‘provoke a behavioural reaction on their release from custody which would ultimately allow for the capturing of unequivocal evidence which would enhance any prosecution against these individuals.’”
“A similar approach to that taken in Davidson and Copeland was adopted in the Divisional Court in [Tchenguiz] – see, in particular, paragraphs 209-234. No doubt, at some point in the future, the Court of Appeal or Supreme Court may be called upon to determine whether there is any irreconcilable tension between the decision in Alford and decisions such as Davidson, [Tchenguiz] and Copeland. For my part, I am satisfied that I should follow the reasoning of the decisions in Davidson, [Tchenguiz] and Copeland. If, in due course, they can be reconciled with Alford so much the better; if they cannot I believe the law of precedent requires me to follow the line of authority which is the later in time. Accordingly, if, on the facts of the case in respect of any particular Claimant, it is appropriate for me to conclude that (a) Mr Coutts or Mr Penhale directed the arresting officers to carry out the arrests of the Claimant and (b) upon an objective analysis of the whole of the information available to them at the time of the arrest no reasonable grounds for an arrest existed but (c) the information provided to the arresting officer did justify an arrest albeit it was incomplete the arrest would be unlawful and either Mr Coutts or Mr Penhale or both (depending upon who and how they were involved) would be liable for false imprisonment and the Defendant vicariously liable for the tort.”
“32. … if a person deliberately invents a very serious false allegation to which they say they are a witness and which the police would be in no position to check and puts that allegation to the police so that the police officer’s discretion is effectively removed, therefore procuring the claimant’s arrest, that person commits the tort because in those circumstances they are responsible for the arrest. Such a person has gone beyond laying information before police officers for them to act as they saw fit. On the other hand a person who merely gives information in good faith albeit mistakenly does not commit the tort. To be liable they have to go beyond that by directing, requesting or directly encouraging the officers to arrest the claimant, as a result of which the prosecuting authority could be said [to be] acting as their agent or whom the defendant procured to act as they did.”
“35. … if a defendant acting without bad faith merely gives information to the police which is in fact mistaken, one cannot say whether or not the defendant is liable without deciding whether the police felt compelled to act as a result of what they were told or whether the police took responsibility for their decision to arrest the claimant, as the police officers did in Davidson. I do not believe that is the law nor do I believe such a principle can be derived from Barkhuysen given its very different facts. Reasoning arising from a case in which the defendant invented allegations to procure an arrest she desired and intended does not readily transpose to cases in which information was provided without bad faith. 36. In my judgment the distinction between merely providing information, and going beyond that to establish liability, at least in part, arises from the nature of this type of claim and liability. The essential test is whether what the defendant did had the effect of turning the police into their agent or as someone whom the defendant procured to act as they did. A defendant who merely provides information to the police in good faith is not procuring the claimant’s arrest even if it is practically inevitable that an arrest will follow. If the passage cited from Clerk & Lindsell which is referred to in paragraph 141 of Barkhuysen means something different then I disagree with it but I do not believe that is what the authors were saying. The authors were not seeking to say anything different from Davidson and Ahmed…”
“74. … Although there is an odd lack of citation in the cases (Alford of Davidson, and Copeland of Alford), I do not regard the cases as fundamentally at odds. As regards Copeland, the essence of the case was that the briefing officer, PC Bains, had deliberately lied. The effect of the lie was that the subsequent arrest was due to the lie of PC Bains. Another way of expressing the same things was that it was based on false evidence deliberately intended to procure the arrest of Ms Copeland, and having that effect. If there is a case where the briefing officer simply gives an instruction to an arresting officer to arrest a suspect, where the latter without more acts on that instruction, then the arresting officer will be acting wrongly: see the extract from O’Hara at 301H… 75. This does not detract from the principle that in most cases, the arresting officer will be the sole person whose suspicion is to be considered. As noted by Stuart-Smith J in Parker, and from his citation of O’Hara, the arresting officers are entitled to rely upon information provided to them by investigating or briefing officers, but they may not simply obey orders. They must then decide whether to exercise their discretion to effect the arrest. It will be up to the arresting officers to assess the information bearing in mind its “source” and “its context, seen in the light of the whole surrounding circumstances”, referring back again to the words of Lord Hope in O’Hara at p.298E. 76. That is why it is out of the norm for the briefing officer to be liable by themselves or jointly with the arresting officer for a wrongful arrest. There are exceptions including the case of the lying briefing officer. In such cases, it is as if the briefing officer is making the arrest, such that the Court may need to consider the honesty and the reasonableness of the suspicion of the briefing officer in addition to that of the arresting officer, alternatively whether the briefing officer is guilty of misfeasance giving rise potentially to vicarious liability of the chief constable. There may be another exceptional case where an instruction is given on the part of the briefing officer to the arresting officer who then acts on that instruction without more. In such a case, there might be a failure on the part of the arresting officer to exercise any discretion at the point of arrest. In those circumstances, questions will arise as to whether the briefing officer is liable in addition to the arresting officer. 77. I respectfully do not detect a tension between these Court of Appeal cases such that I do not have to decide which is binding on me. I am able to follow both of them. Like Stuart-Smith J, I find that I am not constrained to follow Alford: on the contrary, I follow both Alford and Copeland.”
“78. … Thereis no principle in the authorities which states that in a case such as the present one a Chief Constable is required to prove that both the briefing officer and the arresting officer each honestly suspect the Appellant of an offence and, that in respect of each officer, their suspicions are objectively reasonable. It is not the case that a roving search of each person within the police force involved in every arrest and detention and an assessment of whether they honestly held a suspicion and whether there were reasonable grounds for the same. The matter is well put at para. 35 of the skeleton argument of the Respondent which reads as follows: ‘The Particulars of Claim set out particulars of false imprisonment which focus entirely on the Appellant’s arrest and at no stage impugn or challenge the conduct of DS Judge. It is no answer to this for the Appellant to state that the Respondent bears the burden of proof. This is to confuse the identification of issues (the responsibility of both parties) with the burden of proof (which lies with one party). The Appellant has repeatedly suggested that he is not obliged to articulate why it is that he says that his arrest was unlawful because it is the Respondent who bears the burden of proof; this is misconceived and, as identified by [the Judge] results in a trial that is a “moving feast”.’” ‘The Particulars of Claim set out particulars of false imprisonment which focus entirely on the Appellant’s arrest and at no stage impugn or challenge the conduct of DS Judge. It is no answer to this for the Appellant to state that the Respondent bears the burden of proof. This is to confuse the identification of issues (the responsibility of both parties) with the burden of proof (which lies with one party). The Appellant has repeatedly suggested that he is not obliged to articulate why it is that he says that his arrest was unlawful because it is the Respondent who bears the burden of proof; this is misconceived and, as identified by [the Judge] results in a trial that is a “moving feast”.’”
“85. What of the context of information passed on within the police? This was referred to in O’Hara, namely of investigating officers passing the matter on for an arrest by an arresting officer. That is how policing often works in a collaborative manner. In the words of Sedley LJ in Clarke quoted above: “Policing would otherwise be a practical impossibility.”
“85. … It seems unjust that anyone whose act causes another person to commit a tort should be held jointly liable for the tort as an accessory if the individual was acting in good faith and without knowledge of facts which made the act of the other person tortious.” … 90. … I cannot agree that a rule that the mental element required for liability as an accessory must mirror that required for primary liability is “entirely logical”
“99. … Procuring a breach of contract is another example of a situation where the primary wrong involves strict liability but liability for inducing the primary wrong depends on knowledge. … 101. The House of Lords [in OBG v Allan,[2008] AC 1 ] also confirmed that such accessory liability arises only when the defendant intended to procure a breach of the contract. It is enough for this purpose that the defendant knowingly caused a breach of contract, even if the breach was seen only as a way to achieve some further desired objective (e g procuring Johanna Wagner to sing at your theatre) and not as an end in itself: see paras 42-43 (Lord Hoffmann) and para 192 (Lord Nicholls). Deliberately turning a blind eye counts as knowledge for this purpose: see paras 40-41 and 192. Procuring a tort 102. Liability for procuring a breach of contract does more than provide an analogy with liability for procuring another person to commit a tort. As Lord Hoffmann and Lord Nicholls (with whom the other law lords agreed on this issue) made clear in OBG v Allan, both forms of liability rest on the same underlying principle. This principle was stated in Lumley v Gye by Erle J, at p 232: ‘It is clear that the procurement of the violation of a right is a cause of action in all instances where the violation is an actionable wrong … he who procures the wrong is a joint wrongdoer, and may be sued, either alone or jointly with the agent, in the appropriate action for the wrong complained of.’ Although in this statement Erle J did not use the word “malicious”, it is clear from the context and from his judgment as a whole that – in common with all the members of the court – Erle J was concerned with cases where someone “maliciously” procures a wrong and that his statement of the law tacitly assumes that the defendant’s act is “malicious”
‘a person who procures the act of another … will incur liability if he knowingly and for his own ends induces that other person to commit an actionable wrong’
‘He who wilfully induces another to do an unlawful act which, but for his persuasion, would or might never have been committed, is rightly held to be responsible for the wrong which he procured.’ (Emphasis added.)