B e f o r e :
LORD JUSTICE PURCHAS
LORD JUSTICE MUSTILL
and
LORD JUSTICE WOOLF
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TALEB ABBASSY
and
MARY ELIZABETH VERONICA BERNADETTE ABBASSY
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Respondents (Plaintiffs)
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v.
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SIR KENNETH NEWMAN -(The Commissioner of Police of the Metropolis)
SHARON RICHARDSON BEVERLEY
WALTER RICHARD MARDON
and
CHARLES GRIGGS
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Appellants(Defendants)
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(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters Ltd., Room 329, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London WC2A 3RU)
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MR. P. THOMPSON (instructed by the Solicitor to the Metropolitan Police) appeared on behalf of the Appellants (Defendants).
MR. BURRETT and MISS C. WILLIAMS (instructed by Messrs Colin Bishop & Co.) appeared on behalf of the Respondents (Plaintiffs).
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HTML VERSION OF JUDGMENT
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LORD JUSTICE WOOLF: The appeal and cross appeal in this case raise three issues.
(a) The extent of the obligation on a police constable to inform a person whom he is arresting of the reason for that arrest.
(b) What guidance a judge who is trying an action involving a claim for damages, is entitled to give to a jury in the course of his summing-up as to the amount of damages it is appropriate to award.
(c) Whether the jury's answers to two questions were inconsistent.
The issues arise out of an incident which took place on an afternoon as long ago as 1st July 1983. On that day Taleb Abbassy, the first plaintiff, and Mrs. Abbassy, the second plaintiff, were in a Mercedes motorcar driving towards Holland Park. Mr. Abbassy was observed by a number of police officers, including the second, third, fourth and fifth defendants, who were in a police vehicle, driving in an inconsiderate manner. The police vehicle followed the Mercedes to the car park of Holland Park where a discussion took place between Mr. Abbassy and W.P.C. Walter, the second defendant. According to W.P.C. Walter's account of that conversation, Mr. Abbassy was arrogant and rude. He was asked at least four times about the ownership of the vehicle which he was driving but he gave no helpful information although on the last occasion, immediately before he was arrested, he had been told by the officer that if he did not satisfy her with regard to the ownership of the vehicle she would arrest him. On arrest he was told by W.P.C. Walter that he was "being arrested for unlawful possession". Mrs. Abbassy was upset by what occurred and she intervened throwing her arm round Mr. Abbassy's neck and saying that the police were not going to take him. After, according to the police, attempts had been made to persuade Mrs. Abbassy to desist, the second defendant, W.P.C. Richardson, arrested Mrs. Abbassy for wilfully obstructing a police officer in the execution of her duty. The officer who was said to be acting in the execution of her duty was W.P.C. Walter who had Mr. Abbassy in her custody. Both Mr and Mrs. Abbassy were taken to the police station and they were in custody from approximately 5.35 p.m. until 7.45 p.m.
Although W.P.C. Walter did not expand on the explanation she gave to Mr. Abbassy for arresting him, in fact the reason for the arrest was because she suspected that he had stolen or received or unlawfully taken and driven away the Mercedes motor car without the permission of its owner. However, as a result of subsequent enquiries, the police accept that in fact Mr. Abbassy committed none of these offences and that he had the authority of the owner to drive the vehicle.
As a result of the incident Mr. Abbassy was charged with an offence of wilfully obstructing W.P.C. Richardson in the execution of her duty, and Mrs. Abbassy was charged with four offences:
1. Wilfully obstructing W.P.C. Walter in the execution of her duty;
2. Assaulting P.C. Mardon thereby occasioning him actual bodily harm;
3. Assaulting W.P.C. Richardson in the execution of her duty; and
4. Without lawful excuse damaging property belonging to the Receiver of the Metropolitan Police, that property being part of the uniform of W.P.C. Richardson.
The charge against Mr. Abbassy was eventually withdrawn but the second, third and fourth charges against Mrs. Abbassy were committed for trial at the Knightsbridge Crown Court.
At the first trial the jury were unable to agree upon a verdict, but upon the re-trial Mrs. Abbassy was acquitted in relation to all three offences.
After Mrs. Abbassy's acquittal, an action was brought against the present defendants. In the proceedings it is alleged that Mr. Abbassy was assaulted; one assault being a slap on the face by W.P.C. Walter and another by the fourth defendant, P.C. Mardon. It is also alleged that both Mr. and Mrs. Abbassy were unlawfully arrested and imprisoned, that Mrs. Abbassy had her hands handcuffed behind her back and that she was violently held, pushed, punched, slapped, kicked and dragged into the police vehicle which took her to the police station. Finally, it is alleged that the defendants are guilty of malicious prosecution.
The trial of these allegations took place over nine working days before Leonard J. and a jury.
After the evidence on behalf of the plaintiffs and defendants had been given Leonard J. was invited to rule whether or not a sufficient explanation for . Mc Abbassy's arrest had been given to him by W.P.C. Walter. On this issue he decided as a matter of law on the defendant's account of what had occurred, that the explanation was insufficient and accordingly the arrest of the first plaintiff was unlawful. This meant that at the time of Mrs. Abbassy's intervention W.P.C. Walter was not acting in the execution of her duty, so that the consequence of Leonard J.'s ruling with regard to the arrest of Mr, Abbassy is that Mrs. Abbassy's arrest was also unlawful.
Leonard J. in giving a short judgment explaining his ruling said:
"... The arresting officer should have said more to indicate that she suspected the person being arrested of an offence which was an arrestable offence. It would have been sufficient, in my judgment, if she had said: 'I am arresting you for theft'. It would have been sufficient if she had said: 'I am arresting you for receiving stolen property'; there was no need to use the word 'handling', in fact it would probably have confused an Iranian suspect. [Mr. Abbassy is Iranian.] It would have been sufficient if she had said 'I am arresting you for taking this vehicle without authority'. ... It is not possible to extract from those words information, available to Mr. Abbassy at the time of his arrest, indicating why he was being arrested.
Essentially this is a technical matter. I make no apology for that. The law is technical on this particular subject. It seems to me that the arrest must have been an unlawful one".
Having made this ruling Leonard J. then summed up to the jury and left to the jury three questions which had been agreed between counsel. One of those questions related to the alleged assault by W.P.C. Walter and in relation to that assault the jury by a majority came to the conclusion that W.P.C. Walter had assaulted Mr. Abbassy and in due course awarded him £750 damages. Another question related to the other alleged assault and the jury unanimously came to the conclusion that there had been no assault.
The third question was intended to resolve the issue as to whether or not the plaintiffs succeeded on the issue of malicious prosecution. The question was in the following terms:
"Has Mary Abbassy proved that W.P.C. Sharon Richardson, W.P.C. Beverley Walter, P.C. Richard Mardon and P.C. Charles Griggs, or any of them deliberately and knowingly wrote a false account in their notebooks of the events that took place in Holland Park on the afternoon of the 1st July 1983?"
To that question the jury answered "No", and in accordance with the course proposed by counsel the judge found in favour of the defendants on the allegation of malicious prosecution.
In his summing-up on the question of damages for the wrongful arrest and false imprisonment, Leonard J. carefully explained the issues to the jury, including explaining to the jury what are aggravated damages and the fact that in this case they were entitled to award aggravated damages. However, he gave the jury no guidance as to what sort of figure would be appropriate apart from indicating to the jury that the damages they should award "whether as compensation or as aggravated damages must be full and adequate recognition of the loss and injury suffered by the plaintiff you are considering" but not "more than is really appropriate". The judge also told the jury that the damages "should be fair and not extravagant". The amount of damages awarded to Mr. Abbassy was 55,000 and to Mrs. Abbassy £10,000.
The defendants duly appealed against the ruling of Leonard J. as to the lawfulness of the arrest and the quantum of damages and Mrs. Abbassy cross-appealed in relation to the decision on malicious prosecution.
In this judgment I will deal first with the two issues which arise on the appeal and then with the issue which arises on the cross-appeal.
The first issue - The adequacy of the reason given for arrest
In dealing with this issue Miss Williams, on behalf of Mr. Abbassy, and Mr. Burrett, on behalf of Mrs. Abbassy, in their helpful arguments accepted that Leonard J. was required to make his ruling on a view of the evidence which was most favourable to the defendants. Normally a question as to whether or not a proper explanation of the reason for the arrest has been given by the arresting officer to the person who is being arrested is a question of fact for the jury and not a matter of law for the judge. However, if on the defendants' own evidence the explanation which was given to Mr. Abbassy was not capable of being an adequate explanation, then Leonard J. was entitled to withdraw the issue from the jury and rule as he did that the arrest was unlawful.
As to the extent of the explanation which has to be given to a person as to the reason for his arrest, the most helpful guidance is to be found in the speeches of the House of Lords in Christie v. Leachinsky [1947] AC 573 which is the authority normally referred to on this subject. In his speech Viscount Simon, having reviewed the authorities, set out the following five propositions commencing at p. 587:
"(1.) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2.) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3.) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4.) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5.) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him".
Viscount Simon, having set out these propositions, then went on to point out that if the position were otherwise,
"the prima facie right of personal liberty would be gravely infringed" and identified what he described as "the practical considerations" which supported his view in these words: "If the charge on suspicion of which the man is arrested is then and there made known to him, he has the opportunity of giving an explanation of any misunderstanding or of calling attention to other persons for whom he may have been mistaken, with the result that further enquiries may save him from the consequence of false accusation".
Lord Simonds in his speech having stressed the importance of the principle at p. 593 went on to say
"that it is not an essential condition of lawful arrest that the constable should at the time of arrest formulate any charge at all much less the charge which may ultimately be found in the indictment"
and then went on to state "the fundamental principle" as being
"that a man is entitled to know what, in the apt words of Lawrence L.J., are 'the facts which are said to constitute a crime on his part'".
Lord Simonds also pointed out at p. 591
"that it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful".
In other words, that one of the reasons that a person is to be told the reason for his arrest is so that if that is not a reason which justifies his arrest he can exercise his right to resist arrest.
It should, however, be noted that although information has to be given for the reasons for the arrest, no reference need be made as to the power of arrest whether that power be under common law or statute. Whether or not the information which is given is adequate has to be assessed objectively having regard to the information which is reasonably available to the officer. Thus, for example, in dealing with a deaf person it will be sufficient if the arresting constable has done what a reasonable person would have done in the circumstances: (see Wheatley v. Lodge [1971] 1 W.L.R. 29). Furthermore, it is not as Leonard J. said a "technical matter" but involves informing the person who is arrested in non-technical and not necessarily precise language of the nature of the offence said to constitute the crime for which he is being arrested.
Before the learned judge and before this court counsel for the plaintiffs contended that the decision of the House of Lords in Christie v. Leachinsky determines this issue in their favour. At first glance the facts of that case seem to bear out this submission. What had happened is indicated by the headnote. The appellants, who were Liverpool police officers, had arrested the respondent at his warehouse in Liverpool without a warrant. At the time they suspected and had reasonable grounds for suspecting that he had stolen or feloniously received a bale of cloth but they did not give this as a ground of arrest. Instead they professed to arrest him on a charge of unlawful possession under the Liverpool Corporation Act 1921 though in the circumstances that. Act admittedly gave them no power to arrest without a warrant.
There are three important distinctions between that case and this, although they do not affect the principles set out in the speeches to which reference has already been made. First of all, and most importantly, in that case the police officers while they suspected the respondent of having stolen or received the cloth deliberately informed the respondent he was being arrested for being in unlawful possession of the cloth. They did this because otherwise the charge would not be within their "jurisdiction" but within the jurisdiction of the Leicester police and "unlawful possession was the most convenient charge at the time". What is more, the respondent was informed that he was being arrested for unlawful possession under the specific provisions of the Liverpool Corporation Act 1921 when the police officers knew that they had no power to arrest under that Act. In this case there is no question of any deception being practiced, the police officer used the phrase "unlawful possession" as shorthand for the three offences one or more of which she must be assumed (for present purposes) to have had reasonable grounds for suspecting that the first plaintiff had committed. In Christie v. Leachinsky, there was therefore a clear breach of the first principle stated by Viscount Simon. In this case there is only a breach of that principle if it was not sufficient to identify one or more of the crimes the officer suspected the first plaintiff of having committed by using the phrase "unlawful possession".
The second distinction is that there was no comparable offence to unlawfully taking and driving away a motor vehicle involved in the Christie v. Leachinsky offence. This distinction is important since the language used by W.P.C. Walter came closest to describing this offence. The final distinguishing feature follows from the two previous distinctions. In Christie v. Leachinsky no issue arose as to the application of Viscount Simon's fourth principle, that
"the requirement that he should be so informed does not mean that technical or precise language needs to be used".
In this case it was the application of this principle with which Leonard J. was primarily concerned.
It is here relevant to mention that subject to her having complied with the fourth principle laid down by Viscount Simon there was no dispute that W.P.C. Walter had power to arrest the first plaintiff. The only power relied on in the pleadings and until W.P.C. Walter gave evidence before Leonard J. at the trial is that contained in section 2 of the Criminal Law Act 1967. Offences of theft and handling are made arrestable offences by that section and by section 12(3) of the Theft Act 1968 . Offences of taking motor vehicles or other conveyances without authority are deemed to be arrestable offences within the meaning of section 2 of the Criminal Law Act 1967.
A complication did occur during the course of W.P.C. Walter's evidence as a result of the learned judge recollecting and mentioning to the officer section 66 of the Metropolitan Police Act 1839 which was then still in force.
That section gives a constable power to
"stop, search and detain ... any person who may be reasonably suspected of having or conveying in any manner anything stolen or unlawfully obtained".
The language of section 66 of the 1839 Act appears sufficiently wide to embrace anyone in possession of a vehicle in respect of which he has committed an offence under section 2 of the Theft Act 1968 and Mr. Burrett in his submissions made no secret of the fact that he recognised that if the pleadings of the defendants had been amended to rely upon the 1839 Act, the plaintiffs could have been in considerable difficulty. He recognised that unlawful possession could be an appropriate way of describing an offence for which there were reasonable grounds for suspecting the first plaintiff had committed under the 1839 Act. However, Mr. Thompson on behalf of the defendants resisted the temptation to make an application to amend his defence to rely on the 1839 Act and Leonard J. made his ruling on the basis that the authority for arresting was that contained in section 2 of the Criminal Law Act 1967. This appears to me to have been the right course for Leonard J. to adopt having regard to the terms of the defence and the further and better particulars of the defence which were delivered by the defendants.
Mr. Burrett, however, submits that even though the defendants have chosen not to rely upon section 66 of the 1839 Act, the fact that unlawful possession is an offence under that Act cannot be ignored. He submits that the first plaintiff was informed that he was being arrested for unlawful possession, this is a different offence from taking and driving away a motor vehicle or theft or receiving. Accordingly on the way that the case is argued on behalf of the defendants the first plaintiff was informed of an offence which was different from the one for which he was actually arrested.
I do not accept that the issue can be determined on this simple basis. When W.P.C. Walter's evidence is read as a whole, it is clear that the offences which she had in mind when arresting the first plaintiff were the ones relied upon throughout by the defendants, namely theft, receiving and unlawfully taking and driving away. She knew that she had statutory power to arrest for these offences but she did not have in mind at the time the precise statutory provisions which gave her that power. She had in the back of her mind section 66 of the 1839 Act as indicated by her answers to the judge once he had mentioned the section. However, she was not purporting to arrest for the offence created by that section to which the power relates. Furthermore, the fact that the language she used would be a non-technical way in which to describe an offence under section 66 of the 1839 Act does not mean that it was not possible for it also to be nontechnical language to describe an offence under section 12 of the Theft Act 1968. The critical issue therefore remains was Leonard J. right to come to the conclusion that the phrase "unlawful possession" (which clearly referred to the Mercedes motor car) was incapable of properly being regarded by the jury as compliance with the obligation which is imposed on a police officer to inform the person being arrested in non-technical or precise language the reason why he was being arrested?
This question has to be answered taking into account all the background circumstances since the officer's conduct has to be judged bearing in mind that he is not required to do more than is reasonable in those circumstances. W.P.C. Walter is entitled to rely on the questions which she asked Mr. Abbassy and his extremely helpful response. Mr. Thompson submits that the questions indicated that the officer suspected that Mr. Abbassy was driving the car when he was not the owner and had no authority to do so. Miss Williams, on the other hand, submits that the whole incident has to be viewed against the background that W.P.C. Walter should have realised that this was clearly an innocent outing of a mother and father and their children to a park so the children could be taken for a walk.
Clearly W.P.C. Walter would have been well advised to use more precise language than she did. However, it would be wrong for the court to lay down any higher standard than that indicated by the House of Lords in Christie v. Leachinsky. While it is extremely important to recognise that the right to arrest without a warrant is an infringement with the liberty of the individual, it has also to be borne in mind that police officers have to frequently perform their duties in difficult circumstances when it is unreal to expect them to use precise legal language. This was, in my view, just the sort of case where the view which the jury formed of the facts would be decisive. If the jury concluded that in general terms the description which W.P.C. Walter gave of evidence was correct, in my view they would be entitled to come to the conclusion that the W.P.C. had done sufficient at least to inform the first plaintiff that he was being arrested for the offence of unlawfully taking and driving away the vehicle.
Miss Williams submitted that the phrase "unlawful possession" is ambiguous. It could cover conduct which was unlawful in the sense that it amounts to a tort as well as criminal conduct. However, while this is technically correct, I would suggest that bearing in mind W.P.C. Walter was in uniform it must have been obvious that she was concerned with offences against the criminal and not the civil law.
I therefore regard Leonard J.'s ruling as being wrong. The reason for his taking a different view could be that in the course of argument before him the difference between his role and that of the jury on this issue was not made as clear as it should have been. While personally I would not have come to the same conclusion as Leonard J., I fully accept that as a matter of fact but not as a matter of law it is possible, depending on the circumstances, to come to a different conclusion as to the adequacy of the reason which was given for arrest. However, as a matter of law it was certainly not possible to say that a jury properly directed were not entitled to come to the conclusion that the reason given was adequate.
The second issue - damages
Although this issue does not strictly arise if I am right in my conclusions as to the first issue, I should deal with this issue as the point raised is one of general application which is likely to arise if as a result of our ruling on the first issue there is a re-trial.
Mr. Thompson recognises that, in contending that Leonard J. should have given the jury more guidance than he did on the question of damages, history is against him but he submits commonsense is in his favour. I agree with this submission and have considerable sympathy for the arguments which Mr. Thompson advanced. I do not accept that it would not be practicable and possible to work out a better system than at present exists with regard to helping juries as to the assessment of damages. Nor do I accept that there is only the stark alternative of either giving a jury no assistance in assessing damages, other than explaining in general terms the purpose of the award of the different categories of damages and reminding a jury of the need to be fair, or dispensing with juries in relation to issues as to damages.
I would respectfully repeat and endorse the remarks of Diplock L.J. in Every v. Miles C.A. No.261, p. 19 (Quoted in Kemp and Kemp 14-020):
"It is I think a melancholy reflection upon the professional conservatism of lawyers that even today a jury although exercising exactly the same function as a judge when he is assessing damages, is not allowed to be informed about awards in comparable cases despite their own acknowledged relevance to the kind of decision which it is the function of the jury to make".
The force of that comment is underlined by the remarks of the same judge, by then Lord Diplock, in Wright v. The British Railways Board [1983] 2 A.C. 773 where, in relation to personal injury cases, he explained the important role of the Court of Appeal in laying down guidelines as to the quantum of damages to compensate for various types of commonly occurring injuries so as to assist judges to achieve a consistency which would not otherwise be possible. If the Court of Appeal can assist judges, why not juries?
However, a full Court of Appeal in Ward v. James [1966] 1 Q.B. 273 presided over by Lord Denning went into this issue and examined it in much greater depth than would have been appropriate on this appeal and, having rehearsed the argument on either side, came to the conclusion that the present practice of only giving general guidance should continue.
Since that time, in section 69 of the Supreme Court Act 1981 it has been re-enacted that in a claim in respect of, inter alia, malicious prosecution or false imprisonment the plaintiff has the right to have the action tried by a jury unless the case falls within the exception which exists in relation to trials requiring prolonged examination of documents etc. The practice of not providing greater assistance to juries was well known; the right to trial by jury was retained but nothing was done about the practice.
In these circumstances I have come to the conclusion that it would be wholly inappropriate for me to succumb to the temptation in this case to seek to overthrow the long established practice; was endorsed in Ward v. James.
It follows therefore that the judge's direction to the jury on damages cannot be faulted. Nor, in my view, can it be said that the awards in this case fall within the very limited category where the Court of Appeal can intervene with an award for damages by a jury. The defendants do not even appeal against an award of £750 for a single slap on the face and, in my view, it is not open to this court to interfere with the awards of £5,000 and £10,000 for the much more serious complaints which are made as to what occurred following arrest.
The third issue - inconsistent verdicts
It is contended by Mr. Burrett on behalf of the second plaintiff that as the jury came to the conclusion that W.P.C. Walter slapped Mr. Abbassy the jury should not have answered the question relating to the malicious prosecution allegations in the manner which they did. W.P.C. Walter had, not surprisingly, not referred to this assault in her notebook and by this omission she must have "deliberately and knowingly" written "a false account'' in her notebook. I fully accept the logic behind this submission, but with respect to Mr. Burrett it ignores the whole intent and purpose of question 3. Question 3 was settled by counsel for the parties with the object of ascertaining whether in broad terms the plaintiffs' evidence was accepted or the defendants' evidence was accepted as to the events of the afternoon of 1st July 1983. The reason for the framing of the question in this way being that it was accepted by the parties if the jury accepted the plaintiffs' evidence the second plaintiff would be entitled to succeed on malicious prosecution, but if they accepted the version recorded by the police officers in their notebooks (which is the account they gave in evidence) there would not have been any malicious prosecution. I have grave reservations as to the advisability of seeking to resolve the issue as to whether or not there had been malicious prosecution by a question framed in the terms of question 3. The point raised on the appeal illustrates the obvious difficulties which were inherent in trying to deal with the matter in this way. However, this having been the course adopted at the trial by agreement of the parties, and as the learned judge in his summing-up placed question 3 in its correct context of the claim for malicious prosecution, it is not possible to establish that the jury's answers to questions 1 and 3 are inconsistent. Although their answer to question 1 meant that W.P.C. Walter's account in her notebook was not entirely accurate, it would have been wrong for the jury on that basis alone to have answered question 3 in the affirmative if, as appears from the answer which they gave, otherwise they were of the view that it required answering in the negative. The fact that W.P.C. Walter slapped Mr. Abbassy would establish that she was guilty of assault but it would certainly not by itself establish that she and the other defendants were guilty of malicious prosecution. In my view there is no substance in the appeal on this point.
I would therefore allow this appeal in relation to the false imprisonment cause of action alone and order a new trial on that issue. I appreciate that for the verdict of the jury on the other issues to stand and for there to be a re-trial on the false imprisonment allegations alone could give rise to difficulty at the trial. However, because a jury have never had an opportunity of considering the issue of false imprisonment, I am afraid there appears to me to be no alternative. I am, however, very unhappy at the prospect of a re-trial so many years after the alleged false imprisonment occurred but the defendants are entitled to have the judgment in favour of the plaintiffs on this issue set aside, and so there has to be a re-trial, unless the parties can find some other way of resolving the issues which divide them.
LORD JUSTICE MUSTILL: I have had the advantage of reading in draft the judgments of my Lords, Purchase and Woolf L.JJ. I agree with them both and have nothing to add.
LORD JUSTICE PURCHAS: I also agree that this appeal must be allowed on the basis outlined in the judgment of Woolf L.J. As we are differing from the learned judge on an important question of principle in relation to the law of arrest without warrant, I propose to add a short judgment of my own. The powers of arrest without warrant which W.P.C. Beverley Walter purported to exercise were .granted under section 2(4) of the Criminal Law Act 1967, now replaced in equivalent terms by section 24(6) of the Police and Criminal Evidence Act 1984. That this power should be available to constables is important for the protection of the public for obvious reasons. It is, however, of equal importance to the protection of the self-same citizens that the statutory powers, to which I have just referred, should not be abused. It was for this reason that the "rules" summarized in the speech of Viscount Simon in Christie v. Leachinsky [1947] AC 573 at p. 587 came to recognised by the courts. This part of the speech of Viscount Simon has been set out in the judgment of Woolf L.J. and I need not repeat it here. Its origins are to be found deep in the history of the common law: see, for example, the reference in* the speech of Viscount Simon at p. 586 to the classic work dated 1755, entitled Justice of the Peace by the Reverend Richard Byrne D.L.C.:-
"Where a constable acts without warrant by virtue of his office of constable, he should, unless the party be obviously acquainted with it, notify that he is a constable, or that he arrests in the Queen's name, and for what". [Emphasis added).
It would be superfluous to repeat the further analysis of this historic foundation of the principle that the person arrested must be made aware of the reasons for that arrest contained in Viscount Simon's speech. The principle remains unqualified in any material respect today. Neither the 1967 nor the 1984 Act by any statutory provision made any such qualification.
With respect to the learned judge he fell into error in describing this requirement being part of the process of an arrest without warrant as being "a technical matter". That it should be treated in this manner is, in my judgment, alien not only to the modern day concept but also to the historical foundations upon which it is based. The question whether the person arrested was reasonably informed of the reasons for that arrest is ultimately a question for the jury. Of course, in any case in which a jury has a part to play it is open to, and indeed the duty of, the trial judge if he is satisfied that there is no evidence upon which the jury can reach a relevant conclusion to withdraw the matter from the jury. In cases of wrongful arrest, in which the issues have specifically and exceptionally been left for determination by a jury, the judge ought to be very slow to withdraw any particular issue from them.
In this case the evidence of W.P.C. Walter, assuming as one must do in determining a question whether to withdraw the matter from the jury, that it is correct, shows that for some time before the act of arrest a conversation took place during which it must have been made abundantly clear to Mr. Abbassy (to whatever extent he may or may not have understood English) that his right to drive the car or be in charge of it was under question. I need not set out the account given in chief by W.P.C. Walter relating to her enquiries of Mr. Abbassy as to whether he owned the vehicle and the extremely abusive and unhelpful answers he gave leading up to W.P.C. Walter saying: "Unless you can satisfy me with regard to the ownership of this vehicle I will have to arrest you"; his reply: "You can't arrest me. Your British laws mean nothing to me"; and his then being told that he was being arrested for unlawful possession of the vehicle. Although this was the way the evidence came out on the transcript, the contemporary notebook and arrest report do not make specific mention of "the vehicle". However, as Woolf L.J. has already pointed out, it is essentially irrelevant whether the vehicle was or was not specifically mentioned. It must have been made abundantly clear to Mr. Abbassy that it was the unlawful possession of the vehicle which was the basis for the arrest.
The statutory provision requires that before he exercises the power of arrest a constable, with reasonable cause to do so, must suspect that an arrestable offence has been committed and must also, with reasonable cause, suspect the person whom he arrests to be guilty of that offence. The common law imposes the further requirement that the person arrested must be informed, in one way or another, of the identity and status of the person making the arrest and the grounds upon which the arrest is being made. No issue in this case has arisen with respect to the ruling made by Leonard J. relating to the statutory provisions. There will obviously be, if the matter comes to trial, questions to be resolved such as: Was it reasonable for W.P.C. Walter to believe that an offence had been committed at all in view of the respondent's case that they were clearly a family party bent upon a walk in Holland Park? But that is not a matter for consideration here.
The issue as regards the ruling made by Leonard J. depends upon the common law requirement that the person arrested should know why and how he is being arrested and for what. This is a matter, as I have already said, which can only be withdrawn from the jury if there is no evidence upon which the jury can deliberate which is germane to the decision. On the assumption that W.P.C. Walter's evidence is correct, I find it inconceivable that as a result of the interchange between Mr. Abbassy and W.P.C. Walter that Mr. Abbassy was not fully aware of the reason for which he was being arrested. Shortly before the arrest he had been repeatedly asked to give information as to the ownership of the vehicle and had objectionably refused to do so. He had then been told that if he would not supply the information then he would be arrested and thereupon he was arrested "for unlawful possession".
W.P.C. Walter's evidence, which really cannot be refuted, was that she thought that the vehicle had either been stolen by Mr. Abbassy or had been driven away by him without the owner's consent or that he was a receiver of a vehicle that had been stolen by somebody else. Without any further investigation it would be quite impossible for an arresting officer to elect between these three possibilities. Indeed, certainly two of them could be made alternative counts or charges. I can see no mandate in the common law for a requirement that a constable exercising his powers of arrest without warrant should specify the particular crime for which the arrest is being made, provided that one or more of such alternatives present to his mind were arrestable offences. Nor does the arresting constable have to impart the information to the arrested person in the form of a technical statutory or common law definition. In my judgment, it is sufficient that commonplace words be used, the obvious meaning of which informs the person arrested of the offence or type of offences for which he is being arrested. This is quite sufficient to give him the opportunity of volunteering information which would avoid the arrest or, alternatively, although I must personally express some reservation on this aspect of the law as it appears from the authorities, permit forceable resistance against arrest. For these reasons I agree with Woolf L.J. that Leonard J. was wrong to withhold from the jury the question whether a reasonable explanation was given to Mr. Abbassy by W.P.C. Walter and that this question, which was one essentially for the jury, should have been left to them.
On the question of damages, whilst I sympathise with the submissions attractively and forcefully made by Mr. Thompson, I have no doubt that established authority is against him. The cases to which reference was made all related to the assessment of damages for personal injuries. Parliament has recognised, during recent years, that the difficulties involved in assessing a fair figure for compensation in respect of personal injury and loss suffered as a result of accidents is best withdrawn from the jury and left to the judge. In its way this has opened the door to submissions being at least acceptable, if he wishes, by the judge of awards of damages made by other judges in comparable cases.
The problems which arise from wrongful arrest or malicious prosecution are the more compounded by the fact that such is the nature of the compensation involved that Parliament has seen fit to leave the assessment of damages to the judgment of the jury rather than the judge. Therefore, all the arguments which are assembled in the judgment of Lord Denning M.R. in Ward v. James [1966] 1 Q.B. 273 between pp. 299G and 303E apply a fortiori. As with cases involving damages for defamation, so with awards of damages in cases of physical insult and restraint involved in wrongful arrest or malicious prosecution, these are areas where the question of damages is so utterly subjective to the individual facts involved that I think it would be wrong to attempt to influence by judicial interference consideration of damages by the jury. Once this position is acknowledged, then the obvious difficulties in a judge advising a jury demonstrated in the judgment of Lord Denning, to which I have just referred, become all the more apparent.
Turning now to the third issue, namely the alleged inconsistency between the answers to the questions involving the physical assault by W.P.C. Walter, which the jury found to be proved, the physical assault by Richard Mardon, which the jury found was not established, and the answer to question 3 which was directed to a deliberate conspiracy to falsify documents, I agree with the assessment of Woolf L.J. on this matter. It. may very well demonstrate the dangers in agreeing special questions to be put to the jury to produce special verdicts in cases of this kind. However, I do not see that there is established a necessary inconsistency which would be sufficient to vitiate the trial on the basis that the jury must have based their deliberations on a false approach or otherwise been unreliable so as to justify a retrial. I do not wish to add anything to the consideration and reasons which emerge from the judgment of Woolf L.J. on this aspect of the case save to say that I agree with it. For all these reasons I agree that the appeal must be allowed and a retrial ordered on the issue of false imprisonment alone. I agree that it would not be appropriate to allow a retrial of the other issues and that, although there may be some difficulties if not embarrassment, in the treatment of the answers to questions 1 and 2 in these circumstances this is a matter of procedure at the retrial which must be left to the discretion of the trial judge.
Order: Appeal allowed; re-trial on false imprisonment issue only, order for police costs against both respondents not to be enforce without leave of the court; cross appeal dismissed; second plaintiff to pay costs of the police, not to be enforced without leave of the court; leave to appeal to House of Lords refused.
