England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE BUTTER QC)

		Royal Courts of Justice The Strand London
		3 March 1999

THE LORD CHIEF JUSTICE: I will ask Lord Justice Brooke to give the first judgment.

LORD JUSTICE BROOKE: This is an appeal by the plaintiff from an order made by Judge Butter QC, sitting with a jury, at the Central London County Court on 4 March 1998 when he dismissed the plaintiff's claim for damages against the Commissioner of Police for the Metropolis for assault, false imprisonment and malicious prosecution.

The incident which is at the centre of these proceedings occurred on 5 June 1996. At that time the plaintiff was 30 years old. He is a man of good character, and he was living at his parents' home at 6 College Road, Walthamstow, North London. At his sister's request he had taken her daughter to Barclays Nursery, which is in Essex Road, London E10, and PC Senior saw him while he was walking home from there.

When he was still some distance from his home, the officer asked him where he was going. After a short exchange, in which he did not vouchsafe any information, the plaintiff walked on and was turning into his home address when the officer told him he wished to search him because he suspected he was in possession of a prohibited article. The plaintiff resisted, and the jury found that he assaulted the officer. He was arrested and taken to Walthamstow Police Station, where he was detained for about four hours before being charged with assaulting the officer in the execution of his duty. On 2 September 1996 he was acquitted of this charge at the Waltham Forest Magistrates' Court. Two days later he issued these proceedings, which came on for trial on Monday 2 March 1998.

The plaintiff and PC Senior were the only witnesses who gave evidence about what happened up to the time the police officer attempted to search the plaintiff. Their evidence was along the following lines.

The plaintiff told the jury it was a very hot, sunny day, and he was walking home in the normal fashion, dressed in a T-shirt, a leather waistcoat and brown trainers. He was not carrying a bag and was in no particular hurry. When he reached Grove Road he noticed a uniformed police officer on the other side of the road. As he walked along Grove Road he looked round once and saw the police officer was still on the opposite side of the road, about 20 yards behind him.

He said that he was only about five yards from his house when the policeman caught up with him and asked him where he was going. He said he was walking home. The policeman asked, "Why are you walking?" He replied, "Am I not allowed to walk? I thought it was a free country." He told the policeman where his home was. The policeman told him that there were a lot of burglaries round there, and that it was a high risk burglary area. He mentioned Beaulah Road in this context. The plaintiff replied that there was nothing on him as he was not a burglar. He told the jury he did not know it was a high risk area.

The police officer then said he wanted to search him because he looked suspicious. He wanted to search his pockets on suspicion of burglary. The plaintiff said he did not shout, "No, you're not searching me", but he did feel the officer was picking on him. He told him he was not a burglar and that he lived in this area. He then took his keys out of his pocket and stepped into his front garden. The policeman grabbed hold of his arm and twisted it round his back. He denied that he assaulted the officer. Another police officer joined them and told him he was going to arrest him and charge him with assaulting an officer in the execution of his duty. He was then taken to the police station.

PC Senior, for his part, told the jury that he was out on patrol duty that day. He said he had reported several burglaries in that area in the weeks preceding this incident. Beaulah Road leads into Grove Road and there was a path at the back of the walled gardens in that road which burglars use as an escape route. He had walked along that path that day, and he was engaged in walking down Salisbury Road towards Grove Road when he saw the plaintiff walking south along Grove Road in a leisurely fashion. He seemed to be looking at some houses on the left-hand side of the road.

He said the plaintiff then looked over his shoulder at him and he became a bit suspicious. He had not been suspicious when he first saw him, but his suspicion was aroused when he looked at the house and then back at the officer. He did not seem to be walking purposefully. The plaintiff turned left into College Road, and looked back at him again as he crossed the road diagonally. PC Senior decided to stop him before he went into Lea Bridge Road, when he could well have run off. He told the jury he wanted to search him because of what he had seen so far.

He caught up with the plaintiff, as he was ambling along, about half way along College Road, and said, "Excuse me, but would you mind telling me if you are going anywhere in particular." The plaintiff replied, "It's a free country. I don't have to tell you anything." PC Senior said, "Well, this is a high risk area, so I'm interested in what you're doing". The plaintiff said, "You're only stopping me because I'm black. If I was white you wouldn't stop me." The officer said, "That's not true". The plaintiff started to walk away shouting. PC Senior noticed the plaintiff had his hands in his pockets and said, "Show me your hands". The plaintiff said, "No", and walked away. The officer told him he was going to search him. By this time the plaintiff had reached 6 College Road, and the officer had called for assistance on the radio. There was some scuffling, and the plaintiff pushed the officer in the chest when he went to take hold of him in order to detain him for the purposes of a search. Another officer arrived, and they managed to arrest the plaintiff and take him to the police station where he was detained for four hours before being charged.

PC Senior explained to the jury he thought the plaintiff could possibly have had a screwdriver on him.

Section 1 of the Police and Criminal Evidence Act 1984 confers power on a constable to stop and search persons and vehicles in certain circumstances. Section 1(2) to (3) provide, so far as is material:

"(2) Subject to subsections (3) to (5) below, a constable --

(a) may search

(i) any person .... for .... prohibited articles ....; and

(ii) may detain a person .... for the purpose of such a search.

(3) This section does not give a constable power to search a person .... unless he has reasonable grounds for suspecting that he will find .... prohibited articles...."

By section 1(7) and (8) articles intended for use in burglary are prohibited articles within the meaning of this section.

No reliance was placed by the plaintiff at the trial or on this appeal on section 1(4), which provides that a police constable may not search a person if he is in a garden or yard occupied with and used for the purposes of a dwelling or on other land so occupied and used, unless he has reasonable grounds for believing that the person concerned does not reside in the dwelling.

PC Senior would not have been acting in the exercise of his duty that day if he had attempted to stop and search the plaintiff without reasonably suspecting that he would find prohibited articles on his person. The onus lay on him to provide that he did have reasonable suspicion. Procedurally it was for the jury to resolve any disputed issues of fact and for the judge to rule whether on those facts the constable's action was justified (Dollison v Coffery [1965] 1 QB 348,365).

Counsel took the view that there were insufficient differences in the factual accounts of what happened to require a jury question on this part of the case. They therefore invited the judge to rule whether as a matter of law PC Senior was entitled to stop and search the plaintiff in the events that had occurred, insofar as they were agreed, before they made their final addresses to the jury. After hearing counsel's submissions the judge made his ruling in these terms:

"There are certain facts which are really agreed, although there is some dispute on matters of pure detail. Undoubtedly on the evidence the Plaintiff did look back, which by itself would not necessarily be significant. He was walking at a fairly leisurely pace, and again there is nothing much of significance there. But the time does come when the officer goes to speak to him and asks him whether he, the Plaintiff, minds telling the officer if he is going anywhere in particular. This was the moment for the Plaintiff to give an accurate account of where he was going and why, and indeed could at that stage, if he had felt it appropriate, have given his name, and indeed could have said, 'Well, I'm just going to this particular address where I live.' Regrettably he said, and this is not in dispute, 'It's a free country, I can go where I want', and the Plaintiff then moved away, on one view shouting, but certainly walks off, but as to how far it is true there is a dispute.

I reach the conclusion on the material that is agreed that there were reasonable grounds to justify the officer in reaching the conclusion that he should stop and search the Plaintiff."

Following this ruling, the judge directed the jury in due

course in the following terms:

"If the plaintiff did assault the police officer, the police officer was entitled to arrest the plaintiff subject to considerations as to whether he ought to have issued a summons and so on which is a matter for me to think about if it arises."

A little later the judge gave the jury a direction on malicious

prosecution and continued:

"If you do decide the first question Yes -- in other words, that the defendant has satisfied you that the plaintiff struck PC Senior at the scene -- I have to say that I would then expect you also to answer the questions of malicious prosecution in favour of the police as well. If you decide that PC Senior was struck by the plaintiff, then I would have doubted whether there was very much scope for your deciding there was a malicious, dishonest prosecution, but I do leave you to consider that and I advise you to consider each of the questions separately."

On 4 March the jury returned the following answers to the four questions posed to them by the judge:

"Q. Has the Defendant satisfied you that the Plaintiff struck PC Senior?

A. Yes.

Q. Has the Plaintiff proved that PC Senior knew at the time of the arrest that the Plaintiff lived at 6 College Road?

A. Yes.

Q. Has the Plaintiff proved that PC Senior did not honestly believe that the Plaintiff had struck him at the scene?

A. No.

Q. Has the Plaintiff proved that when PC Senior made a statement on 5 June 1996 to the effect that the Plaintiff assaulted him in the execution of his duty that PC Senior did not honestly believe that his statement was true?

A. No."

After hearing further submissions from counsel, the judge then made a ruling in these terms:

"Taking all the matters into account, I reach the conclusion that the constable had reasonable grounds for his arrest and that the validity of the arrest was not vitiated by his knowledge that the plaintiff lived at the address in question. In these circumstances, on the basis of the jury's answers to the relevant questions, I reach the conclusion that the plaintiff's claim must fail."

So far as the issues of assault and false imprisonment are concerned, although the plaintiff on this appeal puts his case in different ways, they all relate to the same central issue: was PC Senior entitled to stop and search the plaintiff in the events that had occurred? If he was not, then he committed an unlawful assault when trying to search him, and another unlawful assault when seeking to arrest him. The plaintiff was entitled to use a reasonable amount of force to resist the first unlawful assault, and since the officer was not acting in the execution of his duty, the plaintiff could not have committed an offence contrary to section 51(1) of the Police Act 1964 by assaulting him. The officer would therefore not have had reasonable grounds for arresting him pursuant to section 25 of the Police and Criminal Evidence Act on suspicion of committing that offence, and would have committed the torts of battery and false imprisonment in connection with the events that took place that day.

Mr Umezuruike, who appears for the plaintiff, sought to submit in his skeleton argument that by telling the jury that if the plaintiff assaulted PC Senior, that officer would be entitled to arrest him, the judge misdirected them into believing that PC Senior was acting in the exercise of his duty when the plaintiff assaulted him. He said that it is not surprising that the jury answered Question 4 in favour of the respondent following this misdirection. If they had been told that the officer was not acting in the exercise of his duty, they might have answered that question in favour of Mr Samuels, who would then have proved his claim for malicious prosecution.

Mr Buckett objected to this line of argument being introduced into the appeal because he submitted that there was no sign of it in the grounds of appeal. It is true that the notice of appeal seeks to set aside, among other things, the dismissal of the plaintiff's claim for malicious prosecution. But the only ground of appeal which Mr Umezuruike identified as going to the malicious prosecution issue was ground 3 which reads:

"The learned Judge in his summing-up misdirected the jury in that he wrongly directed the jury that PC Senior was justified in searching the Plaintiff and therefore he was acting in the execution of his duty as a police constable when he was attempting to search the Plaintiff."

Mr Buckett pointed out that when counsel identified the issues that arise on this appeal in his skeleton argument, there was no hint that a frontal attack is being made on the judge's direction to the jury in relation to the tort of malicious prosecution, although it is true that, right at the end of his skeleton argument, Mr Umezuruike included the arguments to which I have referred. Mr Buckett said that he was not equipped to respond to a complaint in relation to the judge's summing-up of malicious prosecution and would need an adjournment for that purpose. Mr Umezuruike submitted that he thought that he had made the position clear on the face of the grounds of appeal, but if he required an amendment, then he sought leave to amend in order to enable him to mount the argument to which I have referred.

We have already announced that we have refused this application for an amendment. It is the function of counsel settling a notice of appeal to set out clearly the grounds on which they rely for the purposes of the appeal, although it is true that on occasion the court will occasionally allow an amendment to a notice of appeal on the day the appear is heard, particularly if it does not put the other side in difficulty. On this occasion it is quite clear that we would have had to adjourn the appeal to another day. In my judgment it is inappropriate to do so in the circumstances of this case and we should proceed to decide this appeal on the basis of the grounds of appeal as they stand without permitting new grounds to be added. For these reasons I need say no more about the complaint relating to the verdict on malicious prosecution which was clearly settled on the face of it, if the grounds of appeal may not be amended, by the jury's answers to Questions 3 and 4.

I turn then to the issues of assault and false imprisonment. What do the words "reasonable grounds for suspecting" mean? Did the judge correctly make the ruling he did? In Hussein v Chong Fook Kam [1970] AC 942 Lord Devlin said at page 948:

"Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove'."

In my judgment there was no issue before the judge that PC Senior did in fact suspect. The central issue was: was that suspicion reasonable? This issue has to be determined as an objective matter from the information available to the officer (Castorina v Chief Constable of Surrey [1988] New LJ 180, a case concerned with a similar test in section 24(6) of PACE).

The only matter on which the judge appears to have relied in his ruling is the fact that when the officer asked the plaintiff if he minded telling him if he was going anywhere in particular the plaintiff said, "It's a free country. I can go where I want" and moved away. The judge was rightly not willing to attach much significance to the fact that the plaintiff looked back, or that he was walking at a fairly leisurely pace, although these were matters to which the officer had referred when he was justifying the action he took. Indeed, the officer told the that he wanted to search the plaintiff before ever he came up to talk to him.

Mr Buckett seeks to support the judge's ruling by relying also on other matters that were in evidence. First, that the area was known as a high risk burglary area by the police, and statistics were read to the jury which illustrated this fact. Next, that PC Senior told the plaintiff that it was a high risk burglary area, and made clear his wish to know what the plaintiff was doing. Thirdly, that the officer told the jury that he wanted to search the plaintiff in case he was carrying something with him to use in connection with burglary.

As I have made clear, in my judgment the judge was right to attach little significance to the evidence that the plaintiff looked round in the manner described, or that he was ambling along in a leisurely manner on this very hot day, as amounting to a reasonable ground for suspecting that he was going equipped for burglary. The fact that the police officer knew that this was a high risk area for burglary and told the plaintiff this fact cannot in my judgment in itself add anything. Everything turns on the behaviour of the plaintiff when he was stopped, since, in my judgement, the fact that the plaintiff, like many young men, had his hands in his pockets (if he did) cannot add anything.

Mr Umezuruike has rightly reminded us of two cases which show that a citizen, when approached by the police, is not in the ordinary way obliged to answer their questions. In Rice v Connolly [1966] 2 QB 414, Lord Parker CJ said at page 419:

"Accordingly, the sole question here is whether the defendant had a lawful excuse for refusing to answer the questions put to him. In my judgment he had. It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority, and to refuse to accompany those in authority to any particular place; short, of course, of arrest."

That theme was picked up by Goff LJ in his judgment in Collins v Wilcox [1984] 1 WLR 1172, 1178:

"A police officer has no power to require a man to answer him, though he has the advantage of authority, enhanced as it is by the uniform which the state provides and requires him to wear, in seeking a response to his inquiry."

It follows that as a matter of law the plaintiff was entitled not to answer the police officer's question. Mr Buckett did not suggest, if the police officer did not have reasonable grounds for suspicion within the meaning of section 1 of the Police and Criminal Evidence Act, that his act in grasping the plaintiff at his house door in an effort to search him was not an unlawful assault.

It is unfortunate that the plaintiff gave the police officer unhelpful answers. In this, as Mr Buckett accepted, he would have been reacting in a manner no different to that of many young black men -- and indeed many young white men -- in London today when they feel that the police are picking on them. In my judgment, however, if the officer did not have reasonable grounds for suspecting that the plaintiff had a prohibited article on him before he came up to him, the fact that the plaintiff walked away after giving him a truthful answer that this was a free country could not turn what was an unreasonable suspicion into a reasonable suspicion that he was going equipped for burglary and does not add anything in the context of the present case.

Mr Buckett then sought to argue that if we took the view that the judge's ruling was wrong, then there were disputed issues of fact which should go to a jury to decide in relation to the behaviour of the plaintiff up to the time the police officer stopped him; that our proper course would then be to remit the matter to be tried presumably by a new jury at the County Court; and that we could not deal with the matter ourselves.

In my judgment, it is quite clear that Mr Buckett was content for the judge to deal with this aspect of the case on what he called "agreed facts". This is clear from the transcript. Mr Buckett told the judge: "I think we are both agreed about one thing which is that it is obviously for your Honour to decide whether PC Senior was entitled to stop and search the plaintiff. That is a question for your Honour. I do not think there are sufficient differences in the factual accounts between what the plaintiff says and what the defendant's case is to the required jury question on that." If he had wished to do so, Mr Buckett could have required a jury question on such matters as were in dispute up to the time that the police officer came up to the plaintiff as he was ringing the doorbell of the house in which he lived. But in my judgment Mr Buckett's approach at the trial makes it impossible for us to take the view that we should allow those issues to be tried by a new jury.

For these reasons in my judgment the judge's ruling was wrong and the plaintiff was entitled to a verdict in his favour on the charges of assault and false imprisonment. I would allow the appeal.

LORD JUSTICE CHADWICK: I agree that this appeal should be allowed for the reasons which Brooke LJ has given.

THE LORD CHIEF JUSTICE: I also agree. There is nothing I wish to add, save to pay tribute to the notable moderation and good sense which counsel on both sides have shown in arguing this inevitably sensitive case.

(There followed argument in relation to damages)

LORD JUSTICE BROOKE: This is the judgment of the court so far as damages are concerned. The plaintiff is entitled to recover damages on two heads: first, in relation to two assaults; and secondly, in relation to the false imprisonment.

So far as his injuries were concerned, the evidence showed that he had two superficial lacerations on his right elbow, a superficial scratch on his left forearm and minor injuries of that kind. This experienced judge said that so far as the physical injuries were concerned, he had in mind a figure of around £200 - £400. The assault which was represented by the arrest also needs to be taken into account. In our judgment the appropriate figure for these assaults is the sum of £500.

So far as the false imprisonment is concerned, we have in mind the guideline judgment of the Master of the Rolls in Thompson v Commissioner of Police for the Metropolis [1998] QB 498. This was a case in which there was a false imprisonment lasting about three and a half hours. Mr Umezuruike suggested that there were humiliating circumstances because the plaintiff was arrested and his hands were cuffed behind his back in front of his mother in the front garden of his own home. It is not suggested that anybody else was watching as he was taken to a police van which took him away.

Bearing in mind the guidelines given by the Master of the Rolls, in our judgment this is an appropriate case for an award of damages of £1,000 for false imprisonment. Mr Umezuruike also asked for an award of exemplary judgment to mark the court's disapproval of aggressive or arbitrary behaviour. In our judgment, although we have faulted the police officer for stopping and searching the plaintiff on the occasion he did, there is not a hint that this police officer behaved in a way that warranted an award of exemplary damages. He was behaving, according to his judgment, in an appropriate way, and in our judgment exemplary damages would be wholly inappropriate on this occasion.

For those reasons the award of the court will be £1,500.

ORDER: (Not part of judgment)

Appeal allowed with costs; plaintiff to have costs in the County Court on scale 1 under Order 38, rule 9 of the County Court Rules; interest on damages to be paid at the rate of 3% from 4 September 1996 to date; legal aid taxation.

______________________