England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCRTF 97/1640/2

IN THE COURT OF APPEAL (CIVIL DIVISION )

(HIS HONOUR JUDGE DURMAN )

Royal Courts of Justice

Strand

London W2A 2LL

Tuesday, 14th July 1998

B e f o r e

THE VICE-CHANCELLOR

LORD JUSTICE PETER GIBSON

LORD JUSTICE SCHIEMANN

LASELLES STANLEY Appellant

v.

AJAB SINGH BENNING

(T/A TEMPTATION CLOTHING & CHARLIE BROWNS MENSWEAR)

Respondent

(Computer Aided Transcription of the Stenograph Notes of

Smith Bernal Reporting Limited, 180 Fleet Street

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

MR R DE MELLO (instructed by Messrs Murria, Birmingham B4 6UD) appeared on behalf of the Appellant.

MR MARK EADES (instructed by Messrs Rais, Birmingham) appeared on behalf of the Respondent.

J U D G M E N T

(As approved by the Court )

©Crown Copyright

THE VICE-CHANCELLOR: The appellant, the plaintiff in the court below, is Mr Laselles Stanley. The respondent in this court, the defendant below, is Mr Ajab Singh Benning. The defendant, Mr Benning, has a shop in the Birmingham Bull Ring, which trades under the name Charlie Brown's, where clothing is sold. The manager of the shop is Mr Lakhvir Singh Johal. Mr Johal was for a time the second defendant in the action. The action, however, was discontinued against him before it came to trial. As I understand it, it was discontinued because Mr Johal was in receipt of legal aid and it was evident that no damages were likely to be recovered from Mr Johal in any event.

Mr Stanley, the appellant, sued in the Birmingham County Court for damages for assault, false imprisonment and malicious prosecution. It was Mr Johal who did the acts alleged to constitute the assault and the unlawful arrest. The defendant, Mr Benning, the proprietor of Charlie Brown's, was sued as being vicariously responsible for Mr Johal's actions.

The case in the County Court was tried before a jury and before His Honour Judge Durman. A number of questions were left by His Honour Judge Durman to the jury. The jury's verdict on each of these questions was unfavourable to the appellant, and the appellant's action was therefore dismissed. He has appealed to this court alleging various errors of law on the part of the judge, and seeks a new trial.

The facts which have given rise to the action are as follows. The shop in the Bull Ring in Birmingham, Charlie Brown's, has an open frontage to the public thoroughfare, that is to say there are no doors, there is no front wall, the public may come into the shop from the thoroughfare outside, look around, select what clothing, if any, they want and then leave.

On 29th January 1993 at about 5.30 pm in the afternoon the appellant, Mr Stanley, came into Charlie Brown's. He selected two pairs of trousers. He took these with him to one of the cubicles in the premises available for customers to try on clothes. The cubicles, I imagine, although there has been no evidence of this referred to in this court, were of the usual type that anyone who frequents clothing shops would be familiar with, that is to say, a fairly small cubicle with probably a hook or two for hanging clothes that one takes off and a curtain to draw across the entrance in order to preserve due decorum.

Mr Johal, the manager, had observed Mr Stanley going into the cubicle with the two pairs of trousers. Mr Johal's evidence was that after some short interval he observed Mr Stanley emerge from the cubicle carrying just one pair of trousers. He observed Mr Stanley replace the one pair of trousers that he was carrying on whatever hook or hanger was available, and then start to leave the shop. Upon that happening Mr Johal intervened and endeavoured to stop him, believing, he said, that Mr Stanley had, somewhere about his person, the second pair of trousers which he had had when he entered the cubicle. Mr Johal's evidence was that when he endeavoured to stop Mr Stanley from leaving the premises Mr Stanley pushed passed him and made as quick an exit as he could, no doubt running. He (the manager, Mr Johal) and an assistant in the shop, a Mr Nirmal Singh, set off in hot pursuit of the defendant, who they took to be a miscreant stealing a pair of trousers. They caught up with him ten yards or so from the entrance to the shop. Some species of scuffle took place, in the course of which they, or one or other of them, and Mr Stanley fell to the ground, Mr Stanley being grasped firmly. The police were summoned and took away Mr Stanley to the local police station.

A few days later, on 5th February 1993, Mr Stanley was charged with the theft of a pair of trousers. The evidence was that after he had been apprehended Mr Stanley was found to be wearing two pairs of trousers. The top pair were the pair that he had been wearing when he entered the shop. The underneath pair, with the bottom ends tucked into his socks, were the second pair of trousers that Mr Johal, the manager, had seen him carrying when he went into the cubicle. That was the evidence that was given at the trial in the Birmingham County Court. On 19th August 1993, however, Mr Stanley was acquitted of theft in the Birmingham Magistrates' Court. The charge of theft made against him in regard to the pair of trousers that he was said to be wearing underneath his own when he left the cubicle and made a dash from the shop were not, on the finding by the Magistrates', stolen by him.

Some considerable period later, on 29th January 1996, Mr Stanley commenced the civil action that ended up in the Birmingham County Court. Nothing now turns on that delay. In the civil action Mr Stanley alleged in his Particulars of Claim, and also in the evidence he gave when the case came on for trial, that while he was in the cubicle Mr Johal had come in and assaulted him severely, striking him in the face and striking him again when he fell to the ground. Mr Stanley said that he was in terror as a result of this attack, so he struggled to his feet and ran for safety to the outside of the shop. There he was caught and arrested. He denied that he had stolen any trousers. He said he had been trying on the trousers.

There was therefore a complete conflict of evidence between the story as told by the manager, Mr Johal, and his assistant Mr Nirmal Singh on the one hand, and Mr Stanley, the defendant in the Magistrates' Court and plaintiff in the civil proceedings, on the other hand. The claims made in the Birmingham County Court were, as I have said, for damages for assault, for false imprisonment and for malicious prosecution. In these circumstances, having heard the evidence and having heard submissions from counsel on the law, the judge in the County Court, His Honour Judge Durman, formulated nine questions to put to the jury for them to answer. Not all the questions are now relevant, having regard to the manner in which the jury answered some of them, but the ones that are relevant are these:

"1. Has the Plaintiff proved that Johal entered the cubicle and punched him in the face while he was trying on trousers?"

To that the jury answered: "No."

Then, omitting the questions which would have had to be answered had the answer to that question been otherwise, the judge put this question to the jury:

"Has the Defendant [that is to say the proprietor of the shop] proved that Johal honestly believed that the Plaintiff was stealing the trousers?"

To that the jury answered: "Yes."

Question 6 was this:

"Has the Defendant proved that the Plaintiff was in fact in the process of stealing the trousers when Johal and Nirmal took hold of him?"

It will be recalled that they took hold of him some ten yards outside the shop following Mr Stanley's dash for freedom when an endeavour was made inside the shop to prevent him from leaving with the trousers. To that question the jury answered: "Yes." They took the view that at the moment he was apprehended by Mr Johal and Mr Nirmal Singh Mr Stanley was in the process of stealing the trousers.

The seventh question was:

Has the Defendant proved that Johal made it obvious to the Plaintiff that he was being arrested at the time when Johal and Nirmal took hold of him, or soon as practicable thereafter?"

To that the jury said: "Yes."

Question 8 was:

"Has the Defendant proved that Johal informed the Plaintiff in general terms of the grounds for arrest at the time or as soon as practicable thereafter?"

The jury answered: "Yes."

The final question, question 9, was this:

"Has the Plaintiff proved that excessive force was used in effecting the arrest of the Plaintiff?

The jury's answer was: "No."

So the action failed on all points.

The critical issue in the case, in my opinion, is whether or not Mr Johal and Mr Nirmal Singh effected a lawful arrest of Mr Stanley. If they did not then their grabbing hold of him, wrestling him to the ground and holding him until the police came, constituted an assault. If it was a lawful arrest it was no assault. If it was an unlawful arrest and those actions were an assault it would follow that their retention of Mr Stanley in their custody until the police arrived would have represented an unlawful imprisonment of him, false imprisonment. If those events were proved there would at least be some basis for the contention that in making their witness statements, which constituted the core of the prosecution evidence in the proceedings in the Birmingham Magistrates' Court, they were acting in pursuance of some improper motive. So I repeat: in my opinion the critical issue, and certainly the first issue to be addressed, is whether Mr Johal and Mr Nirmal Singh effected a lawful arrest of Mr Stanley.

Section 24(4) and (5) of the Police and Criminal Evidence Act 1984 set out the circumstances in which ordinary citizens, not being police, can lawfully arrest others. Subsection (4) provides as follows:

"Any person may arrest without a warrant -

(a) anyone who is in the act of committing an arrestable offence;

(b) anyone whom he has reasonable grounds for suspecting to be committing such an offence."

Theft is an arrestable offence. So under subsection (4) Mr Johal and Mr Nirmal Singh were entitled to arrest Mr Stanley if Mr Stanley was in the act of committing the offence of theft or if they had reasonable grounds for suspecting that Mr Stanley was committing the offence of theft.

Subsection (5) provides as follows:

"Where an arrestable offence has been committed, any person may arrest without a warrant -

(a) anyone who is guilty of the offence;

(b) anyone whom he has reasonable grounds for suspecting to be guilty of it."

Subsection (6) deals with the case of a constable who has carried out the arrest. Nothing turns on that for present purposes.

Mr De Mello, counsel for Mr Stanley before us, has submitted, first, that subsection (4) cannot be relied on as justifying the arrest in this case because at the time of the arrest the arrestable offence had already been committed. The language of subsection (4) is present, not past: "anyone who is in the act of committing an arrestable offence". Hence, if the offence has already been committed the subsection does not apply.

Mr De Mello has submitted, secondly, that subsection (5) cannot assist the defendant in the present case because the plaintiff was acquitted of the offence of theft. Subsection (5) starts with a condition precedent to the application of the subsection. It starts with the words: "Where an arrestable offence has been committed", and goes on to say that anyone guilty of the offence may be arrested and also that a person may arrest anyone he has reasonable grounds for suspecting to be guilty of the offence. But these subsections (5) powers only arise if in fact an arrestable offence had been committed. Mr De Mello's submission therefore, was that no arrestable offence had been committed. His client, Mr Stanley, had been acquitted by the Birmingham Magistrates.

Mr De Mello submitted also that although the County Court jury, in answering the questions put to them by the judge, expressed their opinion that the offence of theft had been committed, nonetheless the fact that Mr Stanley had been acquitted by a criminal court of that offence was conclusive for the purposes of the civil trial. If Mr De Mello is right in that submission then it must follow that the arrest of Mr Stanley cannot be justified by reliance on subsection (5).

I must deal both with the justification for the arrest under subsection (4) and with its justification under subsection (5). Let me start with subsection (5). A case much relied on by Mr De Mello was R v Self [1992] 1 WLR 657. This was a decision of the Court of Appeal (Criminal Division) presided over by Watkins LJ. It was a case in which the defendant, Mr Self, had taken a bar of chocolate from a shop. He had put it in his pocket and left the shop without paying for it. He had been observed doing this by a store detective and a sales assistant. They followed him out of the shop. They said that they observed take the chocolate out of his pocket and throw it under a car. There was then an attempt by the two men, the store detective and the sales assistant, to arrest him. There was a struggle and eventually a passer-by assisted in making what he (the passer-by) regarded as a citizen's arrest. Mr Self was prosecuted both for the offence of theft in regard to the bar of chocolate and for offences of assault arising out of the struggle which took place when the store detective, the sales assistant and the passer-by were endeavouring to arrest him. Of course if the arrests were lawful then Mr Self's struggles would have constituted assault, but if the arrests were unlawful his struggles to avoid being arrested would not have been unlawful or have involved the commission of any offence.

The jury acquitted Mr Self of the theft of the chocolate. They did so because, although it was not in dispute that he had taken the chocolate from the shop without paying for it, his excuse was that he simply had no recollection of having put the chocolate in his pocket. It had been an oversight and he had had no guilty intent. Guilty intent is, of course, an essential ingredient in the commission of the criminal offence of theft. Mr Self's evidence about his lack of guilty intent was accepted. The jury acquitted him of theft. But they convicted him of assault arising out of the endeavours of the members of the public to arrest him, and it was on that point that the case went to the Court of Appeal. The Court of Appeal held that the conviction for assault was inconsistent with the acquittal for theft. They held that, on the footing that no offence of theft had been committed, the power for citizens to effect an arrest under subsection (5) could not arise. The condition precedent, requiring the commission of an arrestable offence, had not been fulfilled.

At page 659 Garland J, who gave the judgment of the court, referred to subsection (4). He made the point that:

"... that subsection is dealing with the present continuous, that is somebody in the act of committing the offence or someone that the arrester has reasonable grounds for suspecting to be committing such an offence."

He then went on to consider subsection (5) and said

".. the words of section 24 do not admit of argument. Subsection (5) makes it abundantly clear that the powers of arrest without a warrant where an arrestable offence has been committed require as a condition precedent an offence committed."

Having expressed that principle he went on to say:

"If subsequently there is an acquittal of the alleged offence, no offence has been committed."

That sentence was expressed in the context of the facts of the particular case, where the correctness of the conviction for assault depended upon an offence having been committed. But the acquittal showed that no offence had been committed and the acquittal and the conviction had been verdicts in the same case.

Mr De Mello has submitted that the final sentence I have cited from Garland J's judgment shows that an acquittal establishes that no offence has been committed for section 24(5) purposes, regardless of the identity of the parties between whom the point is being litigated. The sentence does not, in my judgment, justify that conclusion. The sentence means no more than it was necessary for it to be mean for the purposes of the case that the court was dealing with, namely, that the verdict convicting Mr Self of assault was, in view of the condition precedent in subsection (5), inconsistent with the verdict acquitting him of theft.

However, the sentence is a convenient lead in to Mr De Mello's next point. He has submitted, in reliance on Hunter v Chief Constable of the West Midlands Police [1982] AC 529 and Smith v Linskills [1996] 1 WLR 763, that the verdict in favour of Mr Stanley in the criminal proceedings in the Birmingham Magistrates' Court is conclusive for section 24(5) purposes of the question whether an arrestable offence had been committed, conclusive not simply between the parties to the criminal proceedings, but conclusive in any other proceedings no matter who the parties to those proceedings might be.

Both Hunter v Chief Constable of the West Midlands Police and Smith v Linskills were cases in which individuals convicted of an offence in the criminal courts were endeavouring in separate civil proceedings, proceedings brought against defendants who were not parties to the criminal proceedings to establish their innocence of the crimes for which they had been convicted. In both cases the attempts by the respective plaintiffs to go behind their criminal convictions failed. In Hunter Lord Diplock at page 541 said this:

"The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made."

That passage was cited and relied on by Sir Thomas Bingham MR (as he then was) in Smith v Linskills .

Mr De Mello accepts that there has never been a case in which an individual has been prevented in separate civil proceedings from alleging against an acquitted defendant in criminal proceedings that that acquitted defendant was in fact guilty of the offence with which he was charged and of which he was acquitted. The spectacle in contemporary litigation of civil actions for assault being brought against individuals who have been, for whatever reason, acquitted of assault in the criminal courts is by no means an uncommon one. The bringing of these actions is often an indication of the determination of the victims of the assaults to establish in the civil courts, the criminal courts having acquitted, the responsibility for the assaults of the acquitted defendants. There are cases of this sort, based on allegations of ordinary assault; there are cases of this sort brought by women who allege that they have been raped but where the alleged rapist has been acquitted in the criminal courts; there are cases of this sort brought where there have been acquittals for murder, but the family of the victim are determined to assert in civil proceedings that the acquitted defendant was in truth guilty. There has never been a case to my knowledge, nor to counsel's knowledge, in which an attempt by a third party to assert in civil proceedings the incorrectness of an acquittal has been barred by reliance on the fact of the acquittal. As a matter of principle it seems to me that that must be so. A third party, whether or not the victim of the alleged crime, is no more than a witness, albeit often a critical witness, in the criminal proceedings. The individual, the believed victim, has no ability to influence the way in which the prosecution conducts the criminal case. The object of the prosecution is to uphold the criminal law; it is not to satisfy the feelings of the victim. This is sometimes perceived as being a weakness in criminal procedure. Be that as it may, it has the result that acquittals sometimes leave third parties feeling aggrieved and they seek to obtain satisfaction by the commencement of civil proceedings. I mention this for the purpose of underlining the impossibility of the acceptance in this court of a submission that just because there has been an acquittal of an individual in criminal proceedings, civil proceedings, based in whole or in part upon an allegation that the individual was guilty of the crime of which he had been acquitted, cannot be brought. In my judgment they can.

Mr De Mello has submitted that the condition precedent in subsection (5) of section 24 of the Police and Criminal Evidence Act 1884 is in some way different. He accepts, I think, the general principle as I have expressed it, namely, that third parties can seek to establish in civil proceedings the guilt of those who have been acquitted in criminal proceedings. But he says that, for the purposes of the condition precedent in subsection (5), the criminal proceedings must be taken as conclusive. I do not understand how that argument can be sustained. In my opinion it lacks logic. It lacks any jurisprudential foundation that I can discern. It does not, in my judgment, represent the law. In my view it was open to the defendant in the present case to seek to establish in the civil action brought against him that Mr Stanley had indeed committed the offence of theft and that Mr Johal's and Mr Nirmal Singh's citizens' arrest of him was therefore lawful. I reject Mr De Mello's submission that in leaving Question 6 to the jury the judge was making an error of law. So much for subsection (5).

I now return to subsection (4). This is the subsection that was referred to by Garland J in Self as "dealing with the present continuous, that is somebody in the act of committing the offence". On the facts of R v Self subsection (4) could not have applied. The commission of the offence was obviously over and done with before the arrest took place. But not so in the present case, in my view. It seems to me thoroughly artificial to treat the conduct of Mr Stanley in entering the shop, selecting the trousers, going into the cubicle, putting on a pair of the shop's trousers underneath his own, tucking the ends into his socks to avoid them being apparent, endeavouring to walk out from the shop with the concealed pair of trousers, being half apprehended while so doing, seeking to evade apprehension and being apprehended ten yards from the shop entrance, a continuous process of criminal intent, as susceptible of being split into two sections, one of which involved the commission of the crime of theft and the other of which involved acts done after the commission of the crime. Section 24(4) was intended to confer arrest powers on individuals in whose presence an offence is committed. How could a shop owner or the owner of domestic premises possibly undertake with any sort of safety a citizen's arrest of a miscreant whom they found making off from their premises, be it shop or home, with their property in his pocket if the lawfulness of the arrest was going to depend, first, on a fine legal analysis of the point in the course of the miscreant's unlawful conduct at which the theft had been completed, perhaps the time at which the watch had been put into the pocket or, as in this case, the trousers put on in the cubicle. There would always be the possibility that at trial some state of mind of the apparent miscreant, which they would have no possible means of knowing of detecting in advance, would lead to an acquittal.

These difficulties were referred to by Ward J in a case also in the Court of Appeal (Criminal Division) in which there were two defendants, Austin Atakpu and Alistair Abrahams. The facts of the case are not material for present purposes, but Ward J referred in his judgment to the problems regarding an over analytical approach to the moment of time at which the offence of theft could be said to have been completed. At page 261 of his judgment, having referred to the House of Lords decision in Gomez [1993] AC 442, he said:

"Endeavouring to summarise, it would seem that (1) theft can occur in an instant by a single appropriation but it can also involve a course of dealing with property lasting longer and involving several appropriations before the transaction is complete; (2) theft is a finite act -- it has a beginning and it has an end; (3) at what point the transaction is complete is a matter for the jury to decide upon the facts of each case; (4) though there may be several appropriations in the course of a single theft or several appropriations of different goods each constituting a separate theft as in Reg v Skipp ... no case suggests that there can be successive thefts of the same property (assuming of course that possession is constant and not lost or abandoned, later to be assumed again).

Can these conclusions stand in the light of Reg v Gomez ...?"

I can omit a passage not relevant to the present case, but Ward J went on to say this:

"We find it more difficult to answer the first question we posed as to whether or not theft is a continuous offence. On a strict reading of Reg v Gomez ... any dishonest assumption of the rights of the owner made with the necessary intention constitutes theft and that leaves little room for a continuous course of action.

We would not wish that to be the law. Such restriction and rigidity may lead to technical anomalies and injustice. We would prefer to leave it for the common sense of the jury to decide that the appropriation can continue for so long as the thief can sensibly be regarded as in the act of stealing or, in more understandable words, so long as he is 'on the job' as the editors of Smith v Hogan , Criminal Law, 7th ed (1992) p 513, suggest the test should be. Since the matter is not strictly necessary for our decision we, like the court in Reg v Pitham ... will leave it open for further argument."

The problems of the Gomez decision to which Ward J referred to do not, in my view, afflict us in the present case. Gomez, like the Atakpu decision itself, was a case in which it was necessary to decide the point at which a particular offence had been committed in order for an a decision to be reached as to whether the charge laid against the defendant had been made good. That is not the problem in the present case. The present case is concerned with the true meaning and effect of subsection (4) of section 24 of the Police and Criminal Evidence Act 1984. I return once again to the language of the subsection: "anyone who is in the act of committing an arrestable offence" (paragraph (a)); "anyone whom he has reasonable grounds for suspecting to be committing such an offence" (paragraph (b)). The intent of subsection (4) was to provide a power which citizens can exercise when they have reasonable grounds for suspecting that an arrestable offence is being committed before their eyes. They are able in those circumstances to exercise a lawful power of arrest. If an individual sees somebody taking goods from a shop shelf, putting them in his or her pocket or his or her bag and leaving the shop without paying, it seems to me that that individual is able to rely on subsection (4) if he or she then and there endeavours to arrest the believed miscreant. It is not to the point that some analysis of the offence of theft might require the conclusion that the offence was complete when the article was taken from the shelf with the requisite dishonest intention. For the purposes of subsection (4), in my judgment, the question whether the act of committing the arrestable offence has continued up to the point at which the arrest was made raises a question of fact and degree fit to be put to a jury for decision. If as a matter of fact and degree the dishonest actions constituting the offence, in this case the theft, have been continuous, with no interruption prior to the arrest, then, in my judgment, the power of arrest under subsection (4) was exercisable. As I have said, the question whether the arrest took place during the commission of the offence is a matter for the jury.

In my view the judge rightly left that question to the jury in the present case. The jury found that the arrest did take place while Mr Stanley was committing the offence of theft. The facts of the case make it impossible, in my opinion, to reject that finding as perverse, and, for the reasons I have given, it was a question which in law the judge was entitled to leave to the jury.

These conclusions establish, in my judgment, that the arrest was a lawful arrest. That being so, Mr De Mello accepts that this appeal must fail. I would dismiss the appeal.

LORD JUSTICE PETER GIBSON: Despite Mr De Mello's careful arguments which he presented with fitting moderation, I too have reached the clear conclusion that this appeal must be dismissed. I have to say that on the facts of this case any other conclusion would seem to me to be an affront to common sense and would astonish right-minded people, and would constitute an unjustified and unjustifiable deterrent to public-spirited members of the public who for good reason suspect that a crime has been or is being committed, from apprehending the believed perpetrator of the crime. We do not know on what ground there was an acquittal of the plaintiff in the Magistrates' Court, but it is certain that the acquittal does not establish as against the defendant in the present case that no arrestable offence had been committed for the purposes of section 24(5) of the Police and Criminal Evidence Act 1984.

As for the defence under section 24(4), I would accept as correct the views expressed by Professor Sir John Smith QC in his commentary on R v Self [1992] Crim LR 572 at 573 and 574 relating to the applicability of section 24(4)(b). What he said was this:

"Hale (1978) 68 Cr App R 415 shows that theft is not an instantaneous act and the thief may still be in the course of stealing after he has assumed the rights of an owner over the property. Arguably, the theft continues while he is 'on the job' and he is still in the course of stealing while he is fleeing down the street in the immediate vicinity of the premises where he assumed ownership."

In my judgment the judge quite rightly left to the jury questions 5 and 6.

For these reasons, as well as the reasons given by the Vice-Chancellor, with which I am in entire agreement, it seems to me that the arrest in this case was lawful, and I too would dismiss this appeal.

LORD JUSTICE SCHIEMANN: I agree that the appeal should be dismissed. The oddity of Mr De Mello's submission appears from the following: that for the purposes of subsection (4) of section 24 he submits that his client must be taken to have committed the offence before the arrest, but for the purposes of his submission under section 24(5) he submits that his client must be taken not to have committed the offence before the arrest. While not disagreeing with what my Lords have said on the subject of section 24(4), I prefer to rest my judgment on subsection (5). I accept that a condition precedent must be fulfilled, namely that the arrestable offence has been committed. Whether in truth such an offence has been committed is something which needs to be established by a human tribunal. The root question in the present case is whether the judge was entitled to leave that question to the jury with which he was sitting or whether he should have directed them that as a matter of law they were obliged to come to the same conclusion as the jury which had acquitted the present plaintiff of the crime. In the criminal case the civil burden of proof was not referred to because there the prosecution had to prove to the high standard of proof required in criminal proceedings that the arrest was lawful. In the present case the defendant only had to prove on the balance of probability that the arrest was lawful.

I agree that this appeal should be dismissed.

ORDER: Appeal dismissed with costs, not to be enforced without leave of this court or the trial court; legal aid taxation.

(Order not part of approved judgment)