Magee & Anor v Derbyshire Police [2020] EWHC 3569 (QB)

‘I suspect but I cannot prove.’

“1. At the close of the evidence on Friday afternoon, the claimants made a series of submissions to the effect that I should, on the evidence, enter judgment for the claimants without the need for factual findings from the jury. I rejected those submissions saying that I would give further reasons later, these are those reasons. 2. The legal framework for the submissions came from the authorities of Dallison v Caffery [1965] I QB 348, Balchin v The Chief Constable of Hampshire [2001] EWCA Civ 538 and McPhilemy v Times Newspapers Ltd (No.3) [2001] EWCA Civ 871. 3. Ms Morris for the claimants acknowledged that on the authority of McPhilemy she had a high hurdle to clear and properly drew my attention to paragraph 34, 'Only when it is plain that one verdict alone would be rational and any other perverse should the issue be withdrawn' and before that, 'It will often be unwise for trial judges to withdraw issues from the jury and by the same token unwise for counsel to invite them to do so'. 4. Balchin is really a decision on its own facts where a first instance judge took it upon herself to make factual findings which ought to have been left to a jury. In Dallison v Caffrey I was taken to page 372 of the judgment of Diplock LJ as he then was and the passage at (d) to (f) which reads … 5. None of this is controversial legally but it helpfully sets out the framework to the submissions made on behalf of the claimants. I take from these authorities that at a civil jury trial such as this, it is for the trial judge to identify the factual issues to be left to the jury, the resolution of which will enable that judge to determine the case. Obviously a judge should be wary of substituting his or her view of the evidence for that of the jury and wary of deciding what would be a rational finding of fact and what would be perverse but at the same time there is no need for a jury to determine an issue if there is no conflict of evidence. 6. For the claimants Ms Morris' first submission was the state of the evidence was such that there could be no rational basis for finding that, on arresting the claimants, the police, in the form of PC Stapleton, had a reasonable suspicion that the Magees had committed an arrestable offence. It is necessary to look very briefly and in summary at what are the undisputed facts. 7. Briefly, Thomas Magee had occupied as his bedsit a room at 79 Cobden Street in Long Eaton. On the night of 14 April 2012 the police got a report from a member of the public saying that people were breaking into the property by removing boarding at the front window and entering through that window. On arrival, the police found boarding removed. They believed, it is said, that Thomas Magee had been evicted from the flat. It is said also that there was a reluctance for those inside to reveal their presence. 8. It is agreed that there was something said along the lines by Thomas Magee or those inside the property, when challenged by the police, that Thomas Magee lived there but he had lost his key. The evidence of the police in the form of PC Stapleton as arresting officer was that he suspected that the claimants were engaged in a burglary. Ms Morris's point is that since the officer did not specify what type of burglary he suspected, there could be no reasonable ground tor that suspicion. The submission, as I understand it, is that since PC Stapleton did not address his mind to the different components of burglary, that is trespass, and then intent to steal or to cause damage or indeed grievous bodily harm, there was no evidence of exactly what PC Stapleton suspected and therefore no evidence of any reasonable suspicion. 9. I reject that submission, PC Stapleton said in terms that he suspected a burglary; burglary is entry as a trespasser and either stealing or intending to steal or cause criminal damage. If the evidence is that the officer suspected burglary that is quite capable of covering all elements of the offence. The requirement is that the arresting officer must have an honest suspicion of an indictable offence; he said that he did and that the offence was burglary. He does not, in my judgement, need to dismantle that suspicion into its component parts. It may be a matter for submissions to the jury that no such suspicion of an indictable offence was held because for example, an officer did not understand what the constituents of the offence were, but there was no suggestion of that in this case, no one was suggesting to PC Stapleton, you do not know what a burglary is. 10. There is evidence that would enable a jury to find that PC Stapleton did suspect a burglary; that is a jury question. Whether or not that suspicion was reasonably held is then a question, primarily, for me and I consider, at present, that it remains a matter for submissions.”

“…it will often be unwise for trial judges to withdraw issues from the jury and by the same token unwise for counsel to invite them to do so. Only when it is plain that one verdict alone would be rational and any other perverse should the issue be withdrawn. The risk of a successful appeal and the disproportionate expense of a re-trial is otherwise too great.”

“The bar for reasonable cause to suspect set out in section 24 (2) of the 1984 Act is a low one. It is lower than a prima facie case and far less than the evidence required to convict: Dumbell v Roberts [1944] 1 All ER 326, 329A and Hussien v Chong Fook Kam [1970] AC 942, 948 —949; see also Castorina’s case 160 LG Rev 241 and O’Hara’s case, at p 293. Further, prima facie proof consists of admissible evidence, while suspicion may take account of matters that could not be put in evidence: Hussien’s case, at p 949, and O’Hara’s case, at p 293. Suspicion may be based on assertions that turn out to be wrong: O’Hara’s case, at p 298D —E. The factors in the mind of the arresting officer fall to be considered cumulatively: Armstrong’s case, at para 19, and Buckley’s case, at para 6.”

“Grounds of arrest. The jury found in relation to both that there was an honest suspicion on the part of PC Stapleton that the offence of burglary was being committed. It is said that objectively there were no reasonable grounds for that suspicion. The basis for that suspicion is that PC Stapleton did not say what species of burglary was involved: theft, criminal damage or grievous bodily harm. He did say that he suspected burglary. I take that to be a compendious term. The jury has found that suspicion was genuinely held. The question is whether that was reasonably held. I have no doubt that it was. The reasons that were given by PC Stapleton were that the police had found a situation where people were breaking into a property through a boarded up broken window at night. There are various possibilities. One obvious possibility is burglary – a trespass – why go through the window? One obvious motive is to steal or cause damage inside. It is entirely reasonable. There is no need to break it down into individual parts. It is all encompassed into the words ‘burglary has been or would be committed.”

“…(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 according to the information known to him at the time, is held to have been made on reasonable grounds...”

“However, it should be emphasised that the underlying concept in section 24(5) is that of necessity. This cannot be envisaged as a synonym for “desirable” or “convenient”

“11. The next submission also relates to lawfulness of arrest. The submission is that there is no evidence that the claimant's arrest was necessary and that brings into focus Section 24 of the Police and Criminal Evidence Act. The power of summary arrest is exercisable only if the arresting officer has reasonable grounds for believing that it is necessary to arrest the person in question; that is Section 24(4). It needs to be necessary for any of the reasons mentioned in Section 24(5). Relevant to this case is Section 24(5)(c)(iii):'To prevent the arrested person causing loss of or damage to property' and Section 24(5)(e), 'To allow the prompt and effective investigation of the offence or of the conduct of the person in question'. 12. The evidence of PC Stapleton was that he considered it necessary to arrest the claimants because, as he put it, 'If I left them there they might commit further offences' he said they needed to be taken into custody to sober up so they could be interviewed about the allegations and he said they needed to be arrested to obtain evidence by questioning’. It seems to me that those reasons given by PC Stapleton are capable of satisfying Section 24(5). I do not consider it necessary that the reasons given should recite a statutory mantra. It is a question for the jury as to whether those reasons proffered by PC Stapleton fall within either Section 24(5)(c)(iii) or Section 24(5)(e). I therefore reject the submission that this issue should be withdrawn from the jury.”

“It is not of course to be expected that a police constable in the heat of an emergency, or while in hot pursuit of a suspected criminal, should always have in mind specific statutory provisions, or that he should mentally identify specific offences with technicality or precision. He must, in my judgment reasonably suspect the existence of facts amounting to an arrestable offence of a kind which he has in mind. Unless he can do that he cannot comply with section 28 (3) of the Act by informing the suspect of grounds which justify the arrest.”

“My mind has wavered on this, because public order can denote a wide variety of offences, some much more serious than others: see the 1986 Act. Section 5, let us say disorderly conduct, is a merely summary offence, unlike other offences in the Act. However, as Clarke LJ said in Taylor’s case [2004] 1 WLR 3155, para 35: ‘Each case depends upon its own facts. It has never been the law that the arrested person must be given detailed particulars of the case against him. He must be told why he is being arrested. In the particular circumstances of this case Mr Walker must have been fully aware that he was being arrested for his conduct in the face of PC Adams and that this was regarded as being a public order offence. It seems to me that that is here a legally and factually adequate explanation of the reason for his arrest. Although in some situations legal labels may matter more than in others, I do not think that the particular legal label of a particular offence matters so much if the arrested person knows that he is being arrested for the conduct he has immediately carried out, a fortiori in the face of the arresting officer, and after warnings that such conduct may lead to his arrest.”

“Have the police proved that when Thomas Magee was told that he was under arrest on suspicion of burglary, the circumstances were such as to make him aware that he was being arrested on suspicion of burglary at 79 Cobden Street committed that night?”

“13. The next submission relates to the information given on arrest. Under Section 28 of the Police and Criminal Evidence Act, on arrest a person must be informed of the ground for that arrest. That simple statement begs the question what is meant by grounds? The most recent Court of Appeal authority is, I think, Walker v Metropolitan Police Commissioner [2015] 1 WLR 312 in which the leading cases of Taylor v Chief Constable of Thames Valley [2004] EWCA Civ 858 and the decision of the European Court of Human Rights in Fox Campbell and Hartley v The United Kingdom were revisited. 14. In Walker a person was arrested and told that it was for public order. The judge found that the claimant had been aggressive and threatening to the police on their arrival, that a police officer had told the claimant to calm down or he would end up getting arrested, that the claimant had stood in the front doorway of the house in such a way as to prevent the claimant from leaving and thus detaining the claimant for a few seconds without touching him, that the claimant had continued to be aggressive and pushed the officer and the officer had then arrested the claimant giving public order as the reason for the arrest. 15. In Walker the Court of Appeal at paragraph 39 referred to a passage from Taylor, in particular the passage of Clarke LJ [cited] … Paragraph 43 also cites Clarke LJ in the same case of Taylor, 'Each case depends upon its own facts; it has never been the law that the arrested person must be given detailed particulars of the case against him. He must be told why he is being arrested'. 16. One considers that alongside the commentary in Archbold, citing Fox at paragraph 15-201, 'Upon making an arrest for violent disorder it has been sufficient to refer to violent disorder with a reference to the time and place. There is no need to specify the precise way in which the arrestee was said to be taking part' that is echoed in Blackstone. According to the Police and Criminal Evidence Act Code C, note for guidance IO(b) and Code G, note for guidance 3, 'Where a person is arrested for an offence he must be informed of the nature of the suspected offence and when and where it was allegedly committed'. 17. From these sources I conclude that a person must be made aware, on arrest, of what offence he is being arrested for and when and where it was allegedly committed. What is required to be communicated, or at least the arrested person made aware of, is what, when and where. There is no requirement to give any detail of precisely how it is alleged that the offence was committed. From the case of Walker itself it seems that the circumstances of arrest may be such as to make the arrested person aware of at least some of the grounds and in my judgment this is and remains essentially a jury question and it will be left to them as such.”

“Have the police proved that, when PS Munro authorised the detention of [the First Appellant] at the police station, she honestly believed that such detention was necessary to secure or preserve evidence – or to obtain evidence by questioning? If PS Munro did believe that the detention of [the First Appellant] was necessary to secure or preserve evidence – or to obtain evidence by questioning, have the police proved that what PS Munro was told about the circumstances of [the First Appellant’s] arrest was sufficient to make her belief reasonable? Have the police proved that when [the Second Appellant] was told that he was under arrest on suspicion of burglary, the circumstances were such as to make him aware that he was being arrested on suspicion of burglary at 79 Cobden Street committed that night? Have the police proved that the detention of [the Second Appellant] at the police station was authorised in the honest belief that such detention was necessary to secure or preserve evidence – or to obtain evidence by questioning?”

“18. A further submission is made in relation to the authorisation of the detention of Thomas Magee. Section 37 of the Police and Criminal Evidence Act deals with the basis upon which an arrested person can be detained before charge. The custody officer must have reasonable grounds for believing that detention without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning. In relation to Thomas Magee, the custody sergeant was Sergeant Munroe. Her evidence was that she was told at the time the circumstances of Thomas Magee's arrest. That would have been on what she described as the yellow sheet filled in by officers who brought him in. The yellow sheet it appears has now been destroyed after a passage of time. Sergeant Munroe says that she would have believed at the time, from what she was told, that detention was necessary to secure or preserve evidence and to obtain evidence by questioning. She says this because that is what she recorded on the custody form itself. The submission is that there is no evidence of precisely what she was told and thus no evidence that she had reasonable grounds to detain, however, the requirement is not to prove what Sergeant Munroe was told. What is required to be proved is that Sergeant Munroe had the belief that detention was necessary to secure or preserve evidence or to obtain evidence by questions. She says that she did and recorded that belief on the custody sheet. It is a matter for the jury as to whether or not they accept that evidence but if they do they can find that such belief was held. 19. I also regard the issue of what Sergeant Munroe was told about the arrest to be a jury question. It is not for me to make findings about what Sergeant Munroe was told and then decide whether any belief as to the necessity for detention was reasonable. This, in my judgement, is an occasion when whether or not a belief is reasonable will turn upon the view taken by the jury as to what they consider it likely that Sergeant Munroe was told. The jury will not need to make findings as to the precise words used to her. They will simply need to consider whether they are satisfied that Sergeant Munroe was told, sufficient in the circumstances, of the arrest of Thomas Munroe, as they find them to be, to make any belief as to the necessity for the detention, reasonable. That may involve drawing an inference. It will be for them to decide whether it can be drawn. 20. Andrew Magee poses a different problem. His custody record is lost and so there is no direct evidence of why he was detained or on whose authority. The claimant says without such evidence Andrew Magee's case, at least on continued detention, must succeed. The defendant says that because Andrew is in exactly the same position as Thomas, the jury could draw inferences that the same reasoning was applied to him. This is the point which caused me the greatest hesitation. Could a jury properly find, on the balance of probabilities, that the same criteria for detention of Thomas applied to Andrew, even though there is no direct evidence? I have concluded that they could so find. Whether they do or not is another matter but these are essentially jury issues and will be left to the jury.”

“The position with Andrew Magee is significantly different. There is no direct evidence but the same points arise. The jury had the same questions for consideration. Even in the absence of such direct evidence, could the jury infer that whoever authorised the detention of Andrew Magee was told that they were under arrest on suspicion of burglary and authorised it in the honest belief that it was necessary? The jury’s conclusion on the balance of probabilities is that there would be no distinction between Andrew and Thomas. They found such a belief would have been honestly held. For the same reasons, I also left to them the question of whether any such belief was reasonable. This was a significant step to take but it was one that the jury was entitled to take. If not, I would have withdrawn it from them. They were entitled to infer that the position would have essentially been the same and that whoever authorised the detention of Andrew Magee would have authorised it in the honest belief that it was necessary and would have done so on reasonable grounds knowing the circumstances of the arrest. In this position I do not propose to revisit my decision to leave those questions to the jury. Again, if it had been for me, I would also have come to the same view. I would have considered it likely that the decision was the same, the information given about both would have been effectively the same or so similar to make no material difference. I would have found that such information was reasonable and that it would have been communicated to the custody sergeant who gave authorisation for detention in the belief it was necessary on a statutory basis. The decision making of the custody sergeant was reasonable, given the circumstances of the arrest. The submissions made in relation to the need for detention are rejected.”

“Handcuffs. It is said that the application of handcuffs is an assault. This needs to be justified. It is correct that there has been no direct evidence as to the need for handcuffing, save for PC Stapleton. He said that they would have been applied for officer safety. This was for the purpose of transport to the police station. We know it was an arrest was in circumstances where violence had been offered at the scene by Daniel. Officers had been attacked by one of the three arrested and the suggestion was made that Thomas Magee rose in circumstances that may have posed a threat. There was no direct evidence as to the thought process of the officers. The question is whether the application of handcuffs was reasonable, rather than inevitable. In my view it was not unreasonable for those who were arrested to be handcuffed when they were transferred. I reject the assertion that this constituted an assault. In relation to Thomas Magee there was the potential that handcuffs were used inappropriately or overtightened. PC Stapleton agreed that the application of handcuffs was painful and would often leave a red mark. He gave a demonstration on the police solicitor. He was concerned in applying the usual technique that they might cause her pain. Thus Thomas Magee’s description is therefore no more than the usual application of handcuffs. Andrew Magee said it was nothing worth worrying about. Thus in relation to the application of assault, I reject that assertion as well.”