England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF MR RECORDER BULLEN
(Portsmouth County Court)

		Royal Courts of Justice Strand London WC2
		25th June 1999

LORD JUSTICE JUDGE:

1. On 5th November 1993 armed police officers arrested Graham Parker in Jubilee Avenue, Paulsgrove. Mr Parker claimed damages against the Chief Constable of the Hampshire Constabulary for assault, battery and false imprisonment.
2. This is an appeal from the decision of Mr Recorder Bullen at Portsmouth County Court on 21st May 1998 that the arrest was unlawful. Subject to the outcome of this appeal, damages were subsequently assessed at £134860, on the face of it, an extraordinary figure.
3. As there is no appeal against the assessment it is enough to note that it was apparently based on the conclusion that an individual with what was described in argument as an "eggshell" personality sustained major psychiatric injury. It follows that Mr Parker is entitled to considerable sympathy for his arrest, and its consequences. He was an innocent citizen whose arrest followed an unfortunate series of co-incidences which led the police to suspect that he had been involved in a major criminal incident when he had not. Perhaps it is also worth recording some sympathy, too, for the police officers, whose concern for the safety of the public led to this armed arrest, and whose motives were honourable. In essence Mr Parker was the victim of a genuine mistake made in good faith by the police.
4. The question in this appeal is not whether the police arrested the wrong man (which they undoubtedly did) but whether in acting as they did they were acting lawfully, in accordance with the powers granted by section 24(6) of the Police & Criminal Evidence Act 1984 which provides:

"Where a constable has reasonable grounds for suspecting that an arrestable offence has been committed he may arrest without warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence."

5. An elaborate analysis of this section is unnecessary. When exercising these powers the constable must suspect both that an arrestable offence has been committed and that the citizen he is arresting is guilty, and in addition he is required to have reasonable grounds for these suspicions (see the analysis of Woolf LJ, as he then was, in Castorina v Chief Constable of Surrey [1988] NLJR 180). For the purposes of this section suspicion should not be elided with guilt, or even prima facie proof of guilt. It "is a state of conjecture or surmise where proof is lacking: I suspect but I cannot prove." (per Lord Devlin in Hussien v Chong Fook Kam [1970] AC 942 at 948). Therefore it follows that a mistaken arrest of an innocent citizen is not necessarily unlawful. What was suggested on behalf of the plaintiff that this particular arrest was speculative, another way of saying that even if the arresting officer suspected the guilt of the man he arrested he had no reasonable grounds for his belief. Therefore an essential ingredient of a lawful arrest was absent.
6. The principle on which an arrest may be effected by one police officer among a team of other officers, or by a single officer involved in a major police operation, was explained by Lord Hope of Craighead in O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 287. After analysing section 12(1) of the Prevention of Terrorism (Temporary Provisions) Act 1984 (which permitted a constable to arrest "without warrant a person whom he has reasonable grounds for suspecting to be (a) a person guilty of an offence ...."), when examining "reasonable grounds for the suspicion" formed by the officer, Lord Hope said, at p298

"It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.

This means that the point does not depend on whether the arresting officer himself thought at that time that they were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It is the arresting officer's own account of the information which he had that matters, not what was observed by or known to anyone else. The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information ...... which turns out later to be wrong."

He went on, at p 301:

"For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search an in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised."

In the context of the individual responsibility on the arresting constable, at p293, Lord Steyn underlined that it was:

"........ rightly accepted, that a mere request to arrest without any further information by an equal ranking officer, or a junior officer, is incapable of amounting to reasonable grounds for the necessary suspicion. How can the badge of the superior officer, and the fact that he gave an order, make a difference? In respect of a statute investing an independent discretion in the particular constable, and requiring him personally to have reasonable grounds for suspicion, it would be surprising if seniority made a difference. It would be contrary to the principle underlining section 12(1) which makes a constable individually responsible for the arrest and accountable in law....... It follows that a constable must be given some basis for a request to arrest......"

7. Although the case was conducted before a jury there was, in the end, no factual dispute and the jury was not invited to make any findings at all. The single question, whether the arresting officer had reasonable grounds for suspecting that Mr Parker was guilty of an offence, was one of law for the Recorder, and we have to resolve the same question on the material considered by him. The claim succeeded because on the basis of the objective material available to the officer at that time the Recorder concluded that there were no reasonable grounds for the arresting officer, DC Perry, to suspect that Parker was one of the men involved in an offence which had undoubtedly been committed in Liverpool.
8. There was an serious incident at 23 50 on Tuesday 26th October 1993 at 54 Aylton Road, Huyton, Merseyside, in which five rounds of ammunition were fired from a handgun at an occupied dwelling and an unattended stationary vehicle. Two men were believed by Merseyside police to be involved, and were said to be "wanted" for the offence. They were Stephen Allen, a man with a record of violence, and Justin Muat. There were serious concerns about the risk that violence would be used by each man to resist arrest. For the purposes of this case at any rate, no question arose about the possible lawfulness of their arrest in connection with this incident. Despite some uncertainty about the precise development of police intelligence, by the time of the hearing before Portsmouth County Court, it was not in dispute that, at the very lowest, Merseyside police also believed that a white Vauxhall Astra motorcar, registration E303 WVM, had been used by the two suspects during the incident, and that this car continued to be in the possession of Stephen Allen and Justin Muat, whose whereabouts were unknown.
9. No trace of either man, or the Vauxhall Astra, came to light until the evening of 4th November. On that date police officers were keeping observation on an address in Morley Crescent, Portsmouth. Simultaneously, a separate surveillance operation, involving unlawful drugs and suspects from Liverpool, was being carried out on another address in the same street. One of the officers keeping observation on the first address noticed a white Vauxhall Astra pull up outside the second address. He saw a man leave the car, enter the premises, where he remained for about half an hour. Knowing of the second operation the officer took down the registration number of the vehicle (E303 WVM), and later that evening checked the number against the police national computer, and made enquiries of Merseyside police.
10. The car was linked to Allen and Muat and the crime on 26th October. In essence the Hampshire police were provided with the information available to the Merseyside Police and informed that both men were "wanted" in connection with the firearms offence. On the following day a photograph of Allen, but not one of Muat, was supplied to the Hampshire police.
11. On 5th November two officers, one of them DC Perry, were maintaining surveillance on Morley Crescent. Just before 13 00 the white Vauxhall Astra returned to Morley Crescent, and stopped, and the same man who had been in possession of it the previous evening left the car and went into the same house. He then left the house and entered the house next door. Using the photograph, a positive identification of this man as Allen was made by others.
12. Preparations were then made for an armed response. In the meantime the officers at the scene decided that if the armed response unit did not arrive in time, and Allen were to drive away from the street, DC Perry would use his own vehicle to follow him. Before the unit arrived Allen did indeed leave Morley Crescent in the Astra, so DC Perry followed him. When Allen became aware of police activity in the area, he drove away at speed. DC Perry lost contact shortly before 14 00.
13. At about 15 50 the Astra was noticed by a Child Protection Squad officer, who knowing of the police interest in the car, which was now being safely driven, followed it for a while. As a result of information provided by him, DC Perry was once again able to take up his position observing the Astra. As the original order to deploy an armed response unit had lapsed, fresh arrangements had to be made, and a new order was promulgated at 16 15. In the meantime DC Perry followed the vehicle, now being driven unremarkably at about 50 mph. At 16 07 he recorded that he did not "think it is the same driver as earlier", adding that he could not confirm this view. The Astra pulled into a garage block at Rowland Road. By 16 18 it was noted by others that a second man had joined the driver. The car left shortly afterwards. Just before it departed, at 16 22, DC Perry reported that the "male in car is not target from this morning". He followed the car to garages at the rear of 24 Jubilee Avenue, Paulsgrove, where he observed two men present in the vicinity of the vehicle. Observations continued until 16 43 when the vehicle was surrounded by armed officers and Perry effected the arrest.
14. The two men at the scene were Mr Parker and another individual, equally unconnected with the original offence in Liverpool.
15. Following the arrest Mr Parker gave the police his name and explained that he had been given the car by a man from Liverpool named "Steve". He was detained for just under twenty minutes, and released.
16. DC Perry was closely examined about the arrest. By 16 22, on the basis of the message recorded by him, he no longer suspected that either man by then connected with the Astra was Allen. In his evidence in chief he was asked who he thought the two men were. He said that he thought that one "could possibly be Stephen Allen" if he had disguised his appearance, and added that the other one "could possibly be Muat". He did not think he had ever been given any description of Muat but he believed that both men were still definitely linked to the car and that the car was still linked to Allen. So he added "it could well have been in the possession of Muat or associates of either". He repeated that at the time when he first spoke to Mr Parker

"in the back of my mind was still the possibility that he could have been Muat ....... "

He later added that he did not know what Muat looked like

"and the indication was that this vehicle was linked to two men from Liverpool who had been involved in a shooting incident. So I arrested both men, reasonably thinking that one of them could possibly be Justin Muat."

17. In cross examination he accepted that by 16 22 he was satisfied that neither of the two men with the car was Allen. He also agreed that he could not say whether either of the two men was Muat, but when asked,

"Q. The nearest we can go is that it is possible that one of those men was Muat?"

He answered

"A. Yes, that is correct",

and confirmed that that represented his state of mind at that time of the arrest.

18. He accepted that although he had made the arrest this was not his personal decision, although he would have been in a position to arrest, or not, and he could have stopped the process.
19. Finally in re-examination he said that he "never ever knew what Muat looked like so my thought process at that time was that I could see two men; one of those could be Muat".
20. One of the points made in his evidence was that even when, by 16 22, he reported that Allen was not present, in the car, it did not follow that Allen was no longer in the vicinity. The sense of this observation was confirmed by evidence that almost immediately after the arrest Allen telephoned the police station, using foul language and taunting DC Perry for having made a mistaken arrest.
21. In his judgment the Recorder spent some time considering the reasons why the operation had not been re-assessed immediately after 16 22, the time of DC Perry's report that Allen was not in the car.
22. In my judgment this analysis was unnecessary. The question of re-authorisation, and deficiencies in the police operation, might have arisen if the exercise of the discretion to arrest had been in issue, but it was not. The single issue was whether there were reasonable grounds for suspicion. Whether the arrest was re-authorised, or not, DC Perry's grounds for suspicion would have been unchanged.
23. The Recorder reflected his concern that the evidence of DC Perry, justifying the arrest of Mr Parker by claiming that he "could have been Muat", left him with the impression of hindsight. However DC Perry's suspicions, and their genuineness, were never in issue, and indeed if they had been, the jury would have been required to decide the question.
24. The Recorder's approach to the essential issue in the case was reflected in his observation that if he "had evidence to show that the arrest was re-authorised after it was clear that Allen was not one of the men, albeit on less strong grounds because there had been no recent sighting of Muat, then perhaps the arrest may have been on reasonable grounds".
25. He added an addendum to his judgment that

"...... At 16 22 they knew (his emphasis) that one of the men must be totally innocent and that there was only an outside chance that the other man might be Muat."

26. Although he concluded that this did not justify an armed arrest, applying his reasoning to the essential issue (and ignoring the operational aspects of the police action as irrelevant for present purposes) the Recorder did not expressly reject the contention that DC Perry had reasonable grounds for suspecting that one of the men proximate to the Astra at the time of the arrest was guilty of the firearms offence in Liverpool. Certainly that is not how he expressed himself.
27. Plainly that individual was not Allen: that left Muat as the only alternative "suspect". Mr Parker was in possession of the car which was directly linked to the firearms offence. So many days after the offence, and so far away from the scene, that fact, taken in isolation, probably did not provide reasonable grounds for suspicion that an individual in possession of it on 5th November should be suspected of an arrestable connection with the crime in Liverpool. Be that as it may however, despite the passage of time and the geographical distance between Liverpool and Portsmouth, there was direct evidence, by way of a positive identification of Allen, which demonstrated a continuing link between the vehicle and one of the two men believed to be responsible for the offence, a link which continued into the afternoon of the arrest.
28. The information available to Hampshire Police suggested that Allen and Muat were, or might well still, be together. Therefore although it was plain by 16 22 that Allen was no longer driving the car the police would have been open to criticism if they had proceeded on the basis that Allen's connection with it, so obvious shortly before, was irrevocably severed, or that coincidentally with becoming aware that he was being followed by the police, he had finally disposed rapidly of any interest in it. Therefore it did not follow from the fact that Allen was no longer present at the car that his colleague Muat, too, was absent. DC Perry thought it possible that Parker was Muat. This state of mind reflected a degree of uncertainty, or to use Lord Devlin's words, a state of "conjecture or surmise". In my judgment this state of mind, suspicious but uncertain, was based on reasonable grounds. Accordingly the arrest of Mr Parker was lawful.

LORD JUSTICE SCHIEMANN: I agree.

LORD JUSTICE PETER GIBSON: I also agree.

Order: Appeal allowed with costs