England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCRTF 97/0789/2

(MR ASSISTANT RECORDER ELLERAY )

Royal Courts of Justice

Strand

London WC2

Tuesday, 9 June 1998

B e f o r e:

LORD JUSTICE BELDAM

LORD JUSTICE SCHIEMANN

LORD JUSTICE THORPE

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FOULKES

PLAINTIFF/APPELLANT

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CHIEF CONSTABLE OF THE MERSEYSIDE POLICE

DEFENDANT/RESPONDENT

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(Transript of the handed down judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR N LEY (Instructed by Messrs Reary & CO, Walton) appeared on behalf of the Appellant

MISS A WHYTE (Instructed by Messrs Weightmans, Romford) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

Tuesday, 9 June 1998

J U D G M E N T

LORD JUSTICE BELDAM: In the early hours of the morning of 20th December 1994 four police officers were summoned to 35 Lenthall Street, Liverpool, by the plaintiff, Mr Trevor Foulkes. He, his son Karl who is aged 18 and daughter Lindsay aged 19, were in the throes of a family dispute because his children were playing music loudly and would not leave the house when he told them to do so. It appears that Mrs Foulkes was also involved and that general abuse had been exchanged. The arrival of the four policemen enabled Mr Foulkes to douse the music and after a while the police officers escorted the son and daughter from the house and directed them to return to the daughter’s flat which was not far away. As the daughter was leaving, she stubbed her cigarette at or on Mr Foulkes’ jumper. Later that morning Mr Foulkes awoke to find that his children had returned for breakfast. A heated family discussion took place and Mr Foulkes rushed downstairs and told the children to leave immediately. Mrs Foulkes took the children’s part and asked him to leave; she suggested he go for a walk or stay with one of his brothers or friends. Mrs Foulkes went out but the argument between Mr Foulkes and his children continued. He tried to use the telephone to summon the police but was prevented by his son and shortly before 9 a.m. he left the house and went to a public telephone box. He again asked the police to attend. P.C.s McNamara and Mulcahey were detailed to answer the call and on arrival found Mr Foulkes locked out of his house. Mrs Foulkes who had returned while he was making his telephone call had agreed with her son that the lock on the front door should be changed. Apparently a replacement lock was kept ready at hand and by this means Mr Foulkes was prevented from returning home. No. 35 Lenthall Street, Walton, was jointly owned by Mr Foulkes and his wife who had been married for 22 years. Their daughter Lindsay had a flat of her own but at the time it was without electricity.

P.C. McNamara found Mr Foulkes sitting on the doorstep. He described him as slightly unkempt, very nervous and jittery and not completely coherent but his nervous disposition was very obvious. His hands were shaking but otherwise he seemed calm. To P.C. McNamara, Mr Foulkes related that he had had arguments, that his son had locked him out of the house and that he wanted to get back in. P.C. Mulcahey went inside the house and was there for several minutes, the door being closed behind him. Whilst P.C. Mulcahey was speaking to Mrs Foulkes inside the house, Mr Foulkes gave P.C. McNamara an account of the incident earlier that morning, telling him that the police had attended and in general terms the nature of the argument. When P.C. Mulcahey returned, he told Mr Foulkes that his wife, daughter and son did not want him to go back into the house and that if he went back in there would be arguments. The officer suggested that Mr Foulkes should go and have a cup of tea or go to a relative until tempers had cooled but Mr Foulkes said more than once

"It’s my house. I called you. I want back into the house"

Several times the police officers suggested that he left the front of the house to cool down but Mr Foulkes refused to do so. P.C. McNamara cautioned him and told him that he would be arrested to prevent any breach of the peace if he did not go away until tempers had cooled. Still Mr Foulkes refused to go so P.C. McNamara arrested him because, in his words, he was:

“... fearful that it was his [Mr Foulkes’] actions outside the property that was going to cause a breach of the peace.”

P.C. McNamara thought that if he left the area while Mr Foulkes remained outside the property, Mr Foulkes would persist in trying to get into the house:

“ If he got into the house then an argument would ensue and violence would occur, whether the violence be upon him or upon the other members of the family at that time to me did not matter but a breach of the peace would occur due to his actions.”

Mr Foulkes was taken to Walton Police Station and was detained there. Mrs Foulkes was asked to attend the police station to make a statement, which she did some time after midday. She completed her statement shortly before 2 p.m. By this time, according to the unchallenged evidence, it was too late for Mr Foulkes to be transferred to the Bridewell in Central Liverpool to be brought before a magistrate. Accordingly he was kept in custody until the following morning when Mrs Foulkes withdrew the suggestion she had made in her statement that she wished her husband to be taken before a magistrate and to be bound over to keep the peace. Mr Foulkes was then released.

On 22nd November 1995 he commenced proceedings against the Chief Constable of the Merseyside Police in the Liverpool County Court claiming that his arrest by P.C. McNamara was illegal and that he had been falsely imprisoned. Further that, even if his arrest was lawful, the duration of his detention was unreasonable.

The plaintiff, as I shall now call Mr Foulkes, included a claim for malicious prosecution but he did not pursue it. He claimed damages, including exemplary damages. For the defendant Chief Constable, it was contended that the plaintiff’s arrest was lawful, being effected by P.C. McNamara on the ground that he reasonably apprehended that a breach of the peace was about to occur or was imminent if he did not arrest the plaintiff.

The plaintiff’s claim was heard in the Liverpool County Court on 1st and 2nd May 1997. The facts I have related were not substantially in dispute. Mr Assistant Recorder Elleray rejected the plaintiff’s claim. It had been conceded before him that P.C. McNamara honestly believed that a breach of the peace was likely to be occasioned unless he arrested the plaintiff. Although the trial was with a jury, in the light of the concession that P.C. McNamara honestly held the belief that arrest was necessary to prevent a breach of the peace, the only remaining question was whether there were reasonable grounds in law for the arrest and subsequent detention of the plaintiff. That was a matter for the judge to determine and after a careful and accurate review of the arguments which had been canvassed before him, the judge held that P.C. McNamara did in this case have reasonable grounds for his honest belief. Accordingly he dismissed the plaintiff’s claim and entered judgment for the defendant. The plaintiff now appeals.

Before setting out the reasons for the Recorder’s decision, I would pay tribute to his judgment as a clear and careful exposition of the principles he applied and the basis for his decision that there were reasonable grounds for P.C. McNamara’s actions. In summary, after extracting the relevant principles from the authorities which had been cited to him, the Recorder set out the factors which had been urged by Mr Ley on the plaintiff’s behalf that there were no such reasonable grounds and weighed them against the factors which he decided had informed P.C. McNamara’s belief that arrest was necessary. On the one hand the plaintiff had summoned the police to the scene. There was no evidence that the plaintiff had committed any damage or had been aggressive, nor that he was a violent man. The mere fact that Mrs Foulkes had expressed concern that if the plaintiff returned to the home there might be arguments did not mean that there would necessarily be violence or damage to property. Nor had P.C. McNamara made enquiries about the circumstances in which the police had attended earlier that morning. On that occasion it was the children who had been asked to leave, not the plaintiff. Moreover P.C. Mulcahey had apparently been of the view that any loud noise or shouting could amount to a breach of the peace. Further there was no evidence that any member of the public might have been affected by this domestic squabble.

The matters which on the other hand led the Recorder to conclude that there were reasonable grounds in law for the plaintiff’s arrest were that Mrs Foulkes and the two children had taken the drastic step of changing the locks to exclude him, that he appeared very nervous and agitated, that he told P.C. McNamara that there had been arguments between himself and the children and that the arguments were to do with loud music. So P.C. McNamara reasonably thought there must be more to it than that. When Mrs Foulkes appeared at the door of the house she made an aggressive remark and her daughter also appeared to be in an agitated state. Earlier that morning she had stubbed a cigarette on or at the father. Both Mrs Foulkes and the children were adamant that the plaintiff was not to go back in the house and Mrs Foulkes had indicated she was frightened there would be trouble. The plaintiff was refusing all the reasonable requests by the police that he should go for a cup of tea or to friends while tempers cooled. The Recorder therefore concluded:

“Constable McNamara and his fellow officers were in a difficult situation, the making of Mr Foulkes and his family. He should and, in my view would reasonably, have been concerned that if the police simply left the scene and Mr Foulkes on his step or the pavement to his civil remedies, matters might have escalated out of hand. He should have feared that Mr Foulkes, with or without friends, would seek to break back into the house; and the adult children, if not Mrs Foulkes, might then physically resist his re-entry.

On the spur of the moment, Constable McNamara had to consider whether the peace of the street was a concern or whether he could safely leave Mr Foulkes where he was. There should have passed through his mind, and may well have done, the possibility that if everything went wrong the likelihood was that any inaction by him would be the subject of criticism.

In my judgment, the Foulkes’ family disputes were that morning plainly out of hand. In the light of the matters known to Constable McNamara he had reasonable grounds for believing that Mr Foulkes might cause harm or damage to property, or might provoke it in his children and that there was an imminent chance of a breach of the peace.”

Accordingly he held that Constable McNamara not only had an honest belief that a breach of the peace would be committed if he did not arrest Mr Foulkes but that he had reasonable grounds for that belief.

After expressing his view that the blame for the plaintiff’s arrest if it was unnecessary lay with the family, the Recorder considered whether on the assumption that the arrest had been lawful the length of the detention thereafter at the police station was unreasonable. Had the plaintiff been willing to give an undertaking that he would not seek to return to the house or would stay away from it, the plaintiff would have been released earlier but, in view of the evidence of the practice in taking persons arrested for breach of the peace before a magistrate, he held that the length of the detention was reasonable in the circumstances and accordingly dismissed the plaintiff’s claim.

The main argument advanced by Mr Ley in the appeal is that the matters identified by the Recorder did not justify arrest. He submitted that where a person is behaving lawfully and no breach of the peace takes place in the presence of a constable, the mere fact that the constable fears that a person acting lawfully in trying to re-enter his home may provoke violence on the part of others is an insufficient basis for arrest on the ground of apprehended breach of the peace.

This argument evoked echoes of the argument put forward in Timothy -v- Simpson (1835) 1 C.M. & R. 757 that a fight between two persons could not support the arrest of both for breach of the peace. Holding that the arrestor did not have to decide on the merits of the dispute, Parke B. said:

“If no one could be restrained of his liberty, in cases of mutual conflict, except the party who did the first wrong, and the bystanders acted at their peril in this respect, there would be very little chance of the public peace being preserved by the interference of private individuals, nor indeed of police officers, whose power of interposition on their own view appears not to differ [at common law] from that of any of the King’s other subjects.” See p.763.

Mr Ley relied on the oft cited cases of Beatty -v- Gillbanks [1882] 9 QBD 308 and Wise -v- Dunning [1902] 1 KB 167. He submitted that it was not a reasonable consequence of the arrested person’s lawful behaviour that another should commit a breach of the peace. In exceptional cases insulting or abusive conduct or behaviour could give rise to retaliation and justify arrest. There was no evidence in the present case of any such conduct on the part of the plaintiff. A police officer arresting on this ground must be satisfied that a breach of the peace as defined by Watkins L.J. in R. -v- Howell (Errol) [1982] QB 416 was likely to occur. At p.426B he said:

“We entertain no doubt that a constable has a power of arrest where there is reasonable apprehension of imminent danger of a breach of the peace; so for that matter has the ordinary citizen ...”.

Later he said:

“We hold that there is power of arrest for breach of the peace where: (1) a breach of the peace is committed in the presence of the person making the arrest or (2) the arrestor reasonably believes that such a breach will be committed in the immediate future by the person arrested although he has not yet committed any breach or (3) where a breach has been committed it is reasonably believed that a renewal of it is threatened.”

In a later passage at page 427 he added:

“... there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant.”

Mr Ley submitted that the circumstances referred to by Watkins L.J. amounted to an exhaustive exegesis of the power of arrest for breach of the peace.

However there are many cases in the books in which conduct not obviously illegal has nevertheless been held to be sufficient to justify an arrest if persisted in or provocatively done. Thus, although persons quarrelling by words only without threat of personal hurt could not be arrested without warrant ( Hawkins, P.C. i Chap.63, s.14), disorderly swearing where a person may be on the point of committing a breach of the peace could be sufficient, see Lockley (1864) 4 F. & F. 155 and a more modern example where noise by continuously blowing a conch shell in a crowded market was held to be likely to lead to a breach of the peace, see R. -v- Inner London Crown Court Ex Parte Benjamin [1986] 85 CAR 267. Peaceful protesters too whose conduct may give rise to retaliation can be arrested if there is a real likelihood of harm being caused, see R. -v- Morpeth Ward Justices Ex Parte Ward [1992] 95 CAR 215 (Divisional Court). Further in some cases persons exercising a lawful right of public assembly or the right to freedom of speech have been found to have been lawfully arrested where, for example, a police officer reasonably apprehends that a breach of the peace may be caused thereby, see Duncan -v- Jones [1936] 1 KB 218 and Thomas -v- Sawkins [1935] 2 KB 249.

I would accept Mr Ley’s submission that the common law power of a police constable to arrest where no actual breach of the peace has taken place but where he apprehends that such a breach may be caused by apparently lawful conduct is exceptional. Many of the instances in which such a power has been upheld in the past are, as a result of the enactment of the Public Order Act 1986, unlikely to give rise to difficulty since for offences under that Act, and particularly under s.4 and s.5, statutory powers of arrest without warrant are conferred on a constable.

In the circumstances of this case, although I am prepared to accept that a constable may exceptionally have power to arrest a person whose behaviour is lawful but provocative, it is a power which ought to be exercised by him only in the clearest of circumstances and when he is satisfied on reasonable grounds that a breach of the peace is imminent.

In Albert -v- Lavin [1982] AC 546, Lord Diplock at p.565 referred to a well established principle that:

“... every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will.”

In my view the words used by Lord Diplock and in the other authorities show that where no breach of the peace has taken place in his presence but a constable exercises his power of arrest because he fears a further breach, such apprehended breach must be about to occur or be imminent. In the present case P.C. McNamara acted with the best of intentions. He had tried persuasion but the plaintiff refused to be persuaded or to accept the sensible guidance he had been given but in my judgment that was not a sufficient basis to conclude that a breach of the peace was about to occur or was imminent. There must, I consider, be a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty a citizen who is not at the time acting unlawfully. The factors identified by the Recorder in the present case do not in my judgment measure up to a sufficiently serious or imminent threat to the peace to justify arrest. Accordingly I would hold that P.C. McNamara, though acting honestly and from the best of motives, did not in fact have reasonable grounds for the arrest. It is unnecessary to consider whether the period of detention was in the circumstances unreasonable but for my part, had it been necessary, I would have held that on the state of the evidence there was no question to be left to the jury on this issue. In John Lewis & Co. Ltd. -v- Tims [1952] AC 676 at 682 Lord Porter said:

“... there may be cases in which it could be contended that, though a reasonable amount of detention would be justified, the actual detention was unduly long. In such a case it would be the duty of the judge to determine whether there was or was not evidence from which it could be deduced that the detention was unduly long, and if he held that there was, to leave the question to the jury whether in fact it was longer than was justified.”

Whilst I accept that the burden of justifying the length of detention rests in its entirety on those who have deprived a plaintiff of his liberty, there must be some evidence upon which a jury could say that the delay in releasing him was too great. See the further observations of Lord Porter at page 691. Before parting with the appeal, I would express my hope that nothing I have said should be taken as detracting from the valuable protection which is so frequently given by the police who in the course of their duties become embroiled in the unreasonable domestic disputes of others and in which their help proves invaluable in preventing violence. I observe from the evidence of P.C. McNamara that he had only joined the police force a few months before he was called upon to deal with this difficult situation and, as the judge said, to make up his mind what to do on the spur of the moment. I have sympathy for his dilemma but cannot support his decision.

For the reasons I have indicated, I would allow the appeal.

LORD JUSTICE SCHIEMANN: I have had the advantage of reading in draft the judgments of Beldam and Thorpe L.JJ. I agree with each of them and I also would allow the appeal.

LORD JUSTICE THORPE: I had the advantage of reading in draft the judgment of my lord, Lord Justice Beldam, with which I am in full agreement. I only add the family law perspective.

Since 1967 every spouse has enjoyed protection from eviction or exclusion from the matrimonial home. That right had always been enjoyed by co-owners but where property rights did not provide protection section 1(1)(a) of the Matrimonial Homes Act 1967 provided:

“.... a right not to be evicted or excluded from the dwelling house or any part thereof by the other spouse except with the leave of the court given by an order under this section.”

Statutory control of the occupation of matrimonial homes has since travelled through the Matrimonial Homes Acts 1981 and 1983 to the Family Law Act 1996. At the date of the episode giving rise to this appeal the rights of the husband and the wife in relation to 35 Lenthall Street were regulated by their joint ownership and by section 9 of the Matrimonial Homes Act 1983 which conferred a right of application on each of the spouses in the event of dispute parallel to the right of application in the event of dispute provided by section 1(2) in cases where the beneficial estate was not shared. In determining an application under section 9(1), section 9(2) imported the discretion contained in section 1(3), namely ‘the court may make such order as it thinks just and reasonable having regard to the conduct of the spouses in relation to each other and otherwise, to their respective needs and financial resources ....... and to all the circumstances of the case’.

Thus the wife’s exclusion of the husband on 20th December 1994 was wrongful. Her only right was to apply under section 9 for an order prohibiting, suspending or restricting her husband’s right of occupation.

That position seems to have been completely misunderstood by Constable McNamara. In his evidence in chief is this passage:

“Q - You knew that he was locked out as well?

A - Yes

Q - What effect did that have on your decision to arrest him then?

A - None at all

Q - Why was that?

A - That was irrelevant, it was his actions. There was three people inside the house. I was aware that the house was owned jointly by him and his wife but the wife was inside the house with the two children. They had locked him out. He was persistent and to a point unreasonable, all we were requesting for was for him to walk round a corner to have a cup of tea and ring his wife until tempers cooled down. It was the last resort to arrest him, the last resort and I think that shows itself in how many times we asked him to just go away to cool down. But the fact that he rang us and, you know, he was putting himself forward as the aggrieved did not sway me at all. It was his actions at the time whilst I was standing there that drew me to the conclusion that a breach of the peace would occur through his actions if I left him there.”

This misapprehension as to which of the spouses was aggrieved seems to have been conveyed to those responsible for the custody record. The entry for 1720 hours reads:

“After charge - bail refused on ground that IP feared for her safety if DP is released without assurances that he will stay away from her.”

Miss Whyte told us that IP stands for ‘injured party’ and DP for ‘detained person’.

In my opinion the husband was both the injured party and the detained person. That is a manifestly unsatisfactory result. I accept it is a possible result under the law as it has evolved to prevent breach of the peace. But I would hope that only in the rarest cases would domestic dispute and the rights of occupation of the matrimonial home be subject to the breach of the peace regime.

This was not so much a dispute between spouses as a dispute between a parent and two adult children. In the early hours the husband had required them to leave and the wife had not registered her objection. By breakfast time the couple were in dispute as to whether their children should be allowed to return. The husband’s expectation that the police would again require the children to leave was quite unrealistic, although understandable in the light of their response to his earlier call. However he was in my opinion entitled to expect some support from the officers in his effort to terminate the wrongful exclusion. Had the officer had a more accurate perception of the husband’s rights and of the wife’s obligation to apply under section 9 of the Matrimonial Homes Act 1983 before seeking to restrict those rights he would surely, at the least, have pointed out to the wife that she was not entitled to resolve the dispute as to the presence of the children by a lock out. It is only in the most extreme cases that conflict between spouses results in imprisonment, absent some criminal act. The imprisonment of a spouse has a profound effect on the future family dynamics. In my experience the invariable response of the police if called to a domestic dispute in a family uncontrolled by orders made in the family justice system is to decline involvement in the absence of a criminal act or the apprehension of a criminal act. I find it hard to envisage a situation in which the power of arrest for an apprehended breach of the peace would be an appropriate management of a dispute between husband and wife within the matrimonial home.

ORDER: Appeal allowed with costs here and below; damages to be assessed or agreed; legal aid taxation of the appellant's cost.