England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCRTF 98/0146 CMS2

IN THE COURT OF APPEAL (CIVIL DIVISION )

(HIS HONOUR JUDGE G.O.EDWARDS QC )

Royal Courts of Justice

Strand

London W2A 2LL

Tuesday 26 January 1999

B e f o r e

LORD JUSTICE STUART-SMITH

LORD JUSTICE SCHIEMANN

LORD JUSTICE CLARKE

GARY ROBERTS Respondent

v.

MERVYN JONES Appellant

(Sued as Chief Constable of Cheshire Police)

(Transcript of the handed down judgment

Smith Bernal Reporting Limited, 180 Fleet Street

London EC4A 2HD Tel: 0171 421 4040

Official Shorthand Writers to the Court)

MR JOHN BENSON (instructed by the Solicitor to the Cheshire Police Authority) appeared on behalf of the Appellant (Defendant).

MR NICHOLAS MASON (instructed by Messrs James James & Hatch) appeared on behalf of the Respondent (Plaintiff).

J U D G M E N T

(As approved by the court)

©Crown Copyright

LORD JUSTICE CLARKE: On the 29th October 1997 His Honour Judge G O Edwards QC awarded the respondent £500 damages against the appellant as Chief Constable of Cheshire Police for false imprisonment. The defendant appeals to this court by leave of Hutchison LJ.

At 10.50pm on the 30th July 1992 the respondent was arrested by a police constable of the Cheshire Constabulary on suspicion of conspiracy to burgle. He was taken to Northwich police station where his detention was authorised by the custody officer at 11.25pm. At about 1am on the 31st July he was escorted from Northwich to Macclesfield police station where he arrived at 1.45am and his continued detention was authorised by the custody officer there. The custody record reads:

"Detention authorised to obtain evidence by questioning."

He was put in a cell. According to the custody record he was asleep at 4, 5, 6, 7 and 8 am. He may, however, have woken up from time to time and it seems likely that during that period he would have been aware that he was in a cell.

At 7.45am a police inspector conducted a case review. The custody record reads:

"Case Review - further detention authorised in order to obtain evidence by questioning. Detainee in rest period. Not awakened. To be reminded of his rights to free legal advice on awakening."

During the afternoon the respondent was interviewed in the presence of his solicitor. There was a further case review at 5.20pm. The custody record reads:

"Review. Further detention authorised to preserve evidence of the offence and to obtain evidence by questioning co-detainees yet to be interviewed. Reasons explained to detainee. No representations made."

At 6.55pm the custody record reads:

"Charge refused."

The ground given was insufficient evidence and the respondent was released. Moreover, he was never subsequently charged with any offence.

Two of the co-detainees were initially plaintiffs in this action but they abandoned their claims after the trial had begun. The respondent originally alleged that his initial arrest was unlawful but that case was abandoned after the judge had ruled that the action should not be tried by a jury.

In these circumstances the respondents' case before the judge depended entirely upon the provisions of the Police and Criminal Evidence Act 1984, which provides (so far as material) as follows:

PART IV

DETENTION

Limitations on police detention

34. (1) A person arrested for an offence shall not be kept in police detention except in accordance with the provisions of this Part of this Act.

(2) Subject to subsection (3) below, if at any time a custody officer -

(a) becomes aware, in relation to any person in police detention, that the grounds for the detention of that person have ceased to apply;

and

(b) is not aware of any other grounds on which the continued detention of that person could be justified under the provisions this Part of this Act,

it shall be the duty of the custody officer, subject to subsection (4) below, to order his immediate release from custody.

...

Duties of custody officer before charge

37 (1) Where -

(a) a person is arrested for an offence -

(i) without a warrant;

...

the custody officer at each police station where he is detained after his arrest shall determine whether he has before him sufficient evidence to charge that person with the offence for which he was arrested and may detain him at the police station for such period as is necessary to enable him to do so.

(2) If the custody officer determines that he does not have such evidence before him, the person arrested shall be released either on bail or without bail, unless the custody officer has reasonable grounds for believing that his detention without being charged is necessary to secure or preserve evidence relating to an offence for which his is under arrest or to obtain such evidence by questioning him.

(3) If the custody officer has reasonable grounds for so believing, he may authorise the person arrested to be kept in police detention.

...

Review of police detention

40 (1) Reviews of the detention of each person in police detention in connection with the investigation of an offence shall be carried out periodically in accordance with the following provisions of this section -

(a) in the case of a person who has been arrested and charged, by the custody officer;

and

(b) in the case of a person who has been arrested but not charged, by an officer of at least the rank of inspector who had not been directly involved in the investigation.

(2) The officer to whom it falls to carry out a review is referred to in this section as a "review officer".

(3) Subject to subsection (4) below -

(a) the first review shall be not later than six hours after the detention was first authorised;

(b) the second review shall be not later than nine hours after the first;

(c) subsequent reviews shall be at intervals of not more than nine hours.

...

(12) Before determining whether to authorise a person's continued detention the review officer shall give -

(a) that person (unless he is asleep); or

(b) any solicitor representing him who is available at the time of the review,

an opportunity to make representations to him about the detention.

...

Limits on period of detention without charge

41 (1) Subject to the following provisions of this section and to sections 42 and 43 below, a person shall not be kept in police detention for more than 24 hours without being charged.

...

Detention before charge - supplementary

45 (1) ...

(2) Any reference in the Part of this Act to a period of time or a time of day is to be treated as approximate only."

Section 40(4)(2) and (7) make provision for postponement of the review in some cases, but it is common ground that none of those circumstances applies here.

It may be noted that a distinction is drawn between the powers of the custody officer to authorise police detention in section 37 and the duties of a custody officer or a police officer of the rank of inspector or above to carry out a review of police detention in section 40. It is common ground that the custody officer at Northwich was exercising his powers under section 37(3) when he authorised the respondent's detention at 11.25pm on the 30th July and that the custody officer at Macclesfield was doing the same at 1.50am on the 31st July. I did at one time wonder whether it could be said that the latter was conducting a review of police detention within the meaning of section 40 at that time, but it is conceded that he was not. In my judgment that concession was correctly made because the Act draws a distinction between the two processes and it is clear from the custody record that the first review by an officer of the rank of inspector or above was at 7.45am.

In these circumstances the judge held that the respondent was being unlawfully detained as from 5.25am. I agree. Section 34(1) of the Act is mandatory. As already stated, it provides that a person shall not be kept in police detention except in accordance with the relevant provisions of the Act. The respondent was detained at 11.25pm on the 30th July, so that by section 40(1)(b) a review of his detention should have taken place before 5.25am on the 31st July. No such review took place. It follows, as I see it, that from that time the respondent was not being detained in accordance with the relevant provisions of the Act. It further follows from section 34(1) that his detention was thereafter unlawful until some event occurred to make it lawful.

In the 17th edition of Clerk and Lindsell on Tort false imprisonment is correctly defined at section 12-17 as complete deprivation of liberty for any time, however short, without lawful excuse. It is common ground that false imprisonment is a type of trespass to the person and that it is actionable without proof of special damage. Mr Benson submits on behalf of the appellant that the respondent could only prove false imprisonment if he could show that if the review had been carried out at the appropriate time he would have been released. It is common ground (and is in any event the case) that the respondent could not show that he would have been released because there is no doubt that if a review had been undertaken at 5.25am his continued detention would have been authorised for the same reasons as it was subsequently authorised at 7.45am. Indeed there is no doubt that the reason why there was no review at 5.25am was that the police at Macclesfield honestly (albeit mistakenly) took the view that the six-hour period ran from the time of the respondent's detention at Macclesfield and not from his first detention at Northwich.

Mr Benson submits that at 5.25am there existed circumstances which were sufficient to justify the continued detention of the respondent. They were reasonable grounds for believing that his continued detention was necessary to secure or preserve evidence relating to the offence for which he was under arrest. Mr Benson submits that in those circumstances his continued detention was not unlawful. In this regard he relies upon sections 16-119 and 16-120 of Clerk and Lindsell and in particular upon the second paragraph of section 16-120, which is in these terms:

Section 40 of the Act imposes an obligation to review the detention of each person in police detention at regular intervals, normally not later than six hours after the person is first detained and then at nine-hourly intervals. The duty to review is so hedged about by exceptions, that it is difficult to see how a failure to review would render continued detention false imprisonment and presumably the plaintiff would have to prove not only a breach of section 40 but that, had the review taken place, he would have been released from custody.

That paragraph must now be read in the light of the third supplement which contains the following against the reference to section 16-199:

It is submitted that a continuation of detention beyond the period prescribed in the Police and Evidence Act 1984 would constitute false imprisonment even subsequent to the judgment of the Court of Appeal in Olut v Home Office [1997] 1 WLR 328.

That case was concerned with custody time limits. The relevant part of the paragraph in the supplement concludes:

In relation to detention under the 1984 Act, the situation is quite different. On the expiry of the prescribed period of detention, any authority to continue to detention of the arrested person ceases to exist and continued detention is unlawful.

That reasoning seems to me to be different from that in the first quoted paragraph. As I read it, the passage in the supplement supports the conclusion of the judge and is in my opinion to be preferred to that in the main work.

Mr Benson submits that, so long as circumstances existed which were or would be sufficient to justify continued detention, the respondent could not be fairly be said to be detained without lawful excuse. I am, however, unable to accept that submission. From 5.25am the respondent was not being detained in accordance with Part IV of the 1984 Act because no review was carried out as required by section 40(1) and (3)(a). As I see it, it is nothing to the point to say that the detention would have been lawful if a review had been carried out or that there were grounds which would have justified continued detention. Part IV of the Act exists in order to ensure that members of the public are not detained save in certain defined circumstances. In all other circumstances every member of the public is entitled to his or her liberty. As Purchas LJ put it in a similar context in Hill v Chief Constable of South Yorkshire [1990] 1 WLR 946 at p 953,

"... we are here dealing with an area of the law where specific provisions have been laid down by Parliament to protect the individual against the excess or abuse of the power of arrest and detention. As Mr Clayton submitted, in my view correctly, the provisions of the Act of 1984 went beyond the pre-existing common law position and as such merited strict construction for the reasons I have already mentioned."

In this case the respondent was entitled to the benefit of a review before 5.25am. In the absence of a review he was in principle entitled to his liberty. His further detention was therefore unlawful. In short he was being deprived of his liberty without lawful excuse. It follows that this was a case of false imprisonment as that tort is defined in Clerk and Lindsell.

The respondent was not in fact released until 6.55pm on the 31st July, which was 13½ hours after 5.25am. The judge held that he was being unlawfully detained throughout that period. It appears that at the trial it was accepted that if, contrary to the appellant's case, the detention was unlawful after 5.25am, it remained unlawful until he was released. Whether that was so or not had no effect upon the outcome of the trial because it is common ground that the judge awarded damages of £500 to compensate the respondent for being unlawfully detained for 2 hours 20 minutes between 5.25am and 7.45am. I note in passing that it was not suggested that the review at 7.45am took place at approximately 5.25 so that the appellant could take advantage of section 45(2) of the Act.

In these circumstances it is not necessary in order to dispose of this appeal to analyse the true legal position from 7.25 am. I would only say that for my part I am not persuaded that the respondent's detention after 7.45am was unlawful. It is true that he was not formally re-arrested at that time. The police did not think it necessary to do so because they thought that they were complying with the Act. However, there is no doubt that they could lawfully have re-arrested him at that time because there were grounds upon which to do so. It is not necessary to decide whether a re-arrest was required. It might be thought to be unnecessary because the respondent was already in police custody. It seems to me to be at least arguable that, although the first review was late, it was nevertheless a review under the Act and was sufficient to make the continued detention of the respondent lawful as from the time that it took place. On that footing the next review should have taken place not later than 9 hours after 7.45am, that is not later than 16.45pm, whereas it in fact took place at 17.20pm. So far as I am aware, the reason for that delay of 35 minutes was not investigated at the trial so that it would not be appropriate to say anything further about it.

I turn to the question of damages. As I have already stated, the judge awarded £500 damages. He did so to compensate the respondent for his detention between 5.25am and 7.45am. Mr Benson submits that he should have awarded the respondent only nominal damages on the basis that if a review had taken place at 5.25am the respondent would have been detained, that further appropriate reviews would have taken place and that he would not have been released until 6.55pm when he was in fact released. The judge accepted that submission on the facts. He described the error by the police as a largely technical error which made no difference to the overall time which the respondent would have spent in custody. Although he also said that the error resulted in an unlawful period of detention of 13½ hours, he added:

The reality is that a more legitimate complaint can be made about 2 hours and 20 minutes when there should have been a review and was not.

It is my view that this was an infringement of the plaintiff's legitimate rights to have his case reviewed and that, although the outcome may not have been affected by the failure to review in time, this infringement cannot be regarded as a purely nominal matter or a matter compensatable by entirely nominal damages. There are rules, the police must stick to them, and this plaintiff was certainly being held for 2 hours and 20 minutes whilst he was entitled to have his custody reviewed, and that is, although the overall time is 13 hours and 30 minutes, essentially the gravamen of the matter. There was no mala fides, the police were acting in good faith, their error was entirely technical.

The question is whether the judge should have awarded only nominal damages on the basis that if the police had acted properly and carried out a review the respondent would have been detained anyway. I see the force of that submission. At first sight it seems wrong that a person who, but for the unfortunate mistake that was made, would have been detained throughout the relevant period, should be entitled to recover damages for his detention during that period. However, I have reached the conclusion that Mr Benson's submission cannot be accepted.

As I have already said, it is common ground that the tort of false imprisonment is actionable per se , that is without proof of special damage. It does not, of course, follow that a plaintiff who has been falsely imprisoned can recover something more than nominal damages. As a matter of general principle such a plaintiff is entitled to be put into the position in which he would have been if the tort had not been committed. It is therefor important to analyse what the tort is. The respondent's claim was not for damages for breach of duty to carry out a review at 5.25am but for false imprisonment.

As I tried to explain earlier, the reason why the continued detention was unlawful was that no review was carried out. The wrong was not, however, the failure to carry out the review but the continued detention. If the wrong had not been committed the respondent would not have been detained between 5.25am and 7.45am. It follows that, as a matter of principle, he is entitled to be compensated for having been detained for those 2 hours and 20 minutes.

The only case to which we were referred which has some relevance to this question was the decision of the House of Lords in Murray v Ministry of Defence [1988] 1 WLR 692. In the course of his speech Lord Griffiths (with whom the remaining members of the appellate committee agreed) at pp 701-2 cited the decision of this court in Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44, where it was held that a person who was in a room which he would not have been permitted to leave the room but who was not aware of that fact could nevertheless sue for false imprisonment. Lord Griffiths thereafter referred to the then current American Re-statement of Torts, which required that the person confined "is conscious of the confinement or is harmed by it" and added (at p 703):

If a person is unaware that he has been falsely imprisoned and has suffered no harm, he can normally expect to recover more than nominal damages, and it is tempting to redefine the tort in the terms of the present rule in the American Re-statement of Torts. On reflection, however, I would not do so. The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof damage.

It was suggested during the argument that the first sentence of that passage supports the appellant's argument that the respondent is entitled to no more than nominal damages. I was at first attracted by that submission, but on further consideration I have reached the conclusion that it does not assist the appellant. As Atkin LJ pointed out in Meering (in a passage at pp 53-54 which was expressly approved by Lord Griffiths at p 702), a person might properly complain of imprisonment or false imprisonment, although the imprisonment began and ceased while he was unaware of it, but

of course, the damages might be diminished and would be affected by the question whether he was conscious of it or not.

All depends upon the circumstances. A person who was falsely imprisoned but who was unaware of his imprisonment and who suffered no harm would be entitled to only nominal damages. The respondent was not, however in that position here. He was no doubt aware of his imprisonment and, as I see it, he was entitled to be compensated for being unlawfully detained in a police cell for 2 hours 20 minutes when, in the absence of a review, he should have been released.

It follows from the above that although he may not have analysed the position in quite that way, the judge was in my opinion right to award the respondent compensatory damages in respect of the period of 2 hours 20 minutes from 5.25am to 7.45 am. He in fact awarded £500 in respect of that period. The appellant does not challenge the quantum of that award on the basis that the respondent was entitled to something more than nominal damages. The judge refused to award aggravated or, indeed, exemplary damages. The respondent does not say that he should have done. It follows that no question of quantum arises on this appeal. I would only add this. A sum of £500 is substantially more than I would have awarded to compensate the respondent for false imprisonment for a period of 2 hours 20 minutes during which he was asleep, especially in circumstances in which if a review had been carried out at 5.25am, his detention would have been lawful.

In the event, for the reasons which I have tried to give I would uphold the decision of the judge and dismiss the appeal. That conclusion makes it unnecessary to consider the appellant's appeal on costs since, as I understand it, it would only arise if the damages were reduced to nominal damages of, say, £5.

LORD JUSTICE SCHIEMANN: I agree.

LORD JUSTICE STUART-SMITH: I also agree.

Order: Appeal dismissed with costs;

legal aid taxation of respondent's costs.