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 Simon Goldstein)

		Royal Courts of Justice Strand London WC2
		8th December 2000

1. LORD JUSTICE MANTELL:
2. Sharon Abraham appeals against the order of His Honour Judge Goldstein striking out her claim for false imprisonment against the Commissioner for the Metropolitan Police.
3. For present purposes I can assume the following facts. Miss Abraham is black. She has strong feelings about the way she believes black prisoners are treated by the police. On the morning of 13th January 1997 she was walking down Great Portland Street with her two year old son, intending to take the tube to Kilburn where she was to pick up another of her children. Her son was in a pushchair. Near to Top Shop she saw a black man being arrested by a number of police officers. She said to the man being arrested "I hope I see you alive again." One of the police officers, Police Sergeant Cook, asked "What did you say?" Miss Abraham replied "I hope I see him alive again" and continued on her way. The police sergeant caught up with her and took hold of her left wrist. He repeated "What did you say?" Miss Abraham said "You heard what I said. Can you let go of my hand please?" Miss Abraham then said "You're hurting my fucking wrist." The sergeant told her "You swear one more time and I'll arrest you.". Miss Abraham then said "my fucking wrist". The sergeant told her that he was arresting her for assault because she had sworn. With the help of others he then proceeded to put her into a police vehicle and her little boy would have been left behind but for the intervention of a bystander who insisted that he be taken also. Then she and her son were taken to Marylebone Police Station where she was detained until the early afternoon. In the meantime, just after noon, Miss Abraham's sister came to collect the little boy and Miss Abraham received the advice of a duty solicitor. On being told by the duty solicitor that any claim she might have would not be prejudiced by her accepting a formal caution, Miss Abraham did so at about 1.40 in the afternoon, whereupon she was permitted to leave. In the course of accepting the formal caution she admitted a version of facts as told by Police Sergeant Cook, which represented a gross exaggeration of the incident which had led to her arrest. On Police Sergeant Cook's account Miss Abraham had come out with a torrent of abuse, using every kind of swear word to describe him, until things got to such a pitch that the police sergeant considered that Miss Abraham's behaviour was likely to cause harassment and distress or, at the very least, alarm to members of the public. Her arrest had been in respect of disorderly conduct, contrary to section 5 of the Public Order Act 1986. Throughout her time at the police station Miss Abraham was treated appropriately, and all the procedures leading up to and including the issuing of a formal caution were carried out in a perfectly proper manner.
4. It was contended before His Honour Judge Goldstein that the civil claim for damages was an abuse of process and ought, therefore, to be struck out pursuant to CPR 3.4(2) or, alternatively, that summary judgment should be entered in favour of the defendant under CPR 24.2. In each case the Commissioner relied upon the fact that Miss Abraham had admitted Police Sergeant Cook's version of events which would have justified the arrest. It was common ground that Miss Abraham would have had a sustainable claim if the truth was as set out above.
5. From Miss Abraham's point of view, there is no doubt that the acceptance of the formal caution and the making of the admission will, at the very least, damage her case on any hearing as to the merits. It might even prove fatal. However, the question is: should the fact that she made such an admission prevent her from presenting her claim? The learned county court judge considered that it should. It was his view that a formal caution was so closely analogous to a criminal conviction as to create a bar to any civil claim inconsistent with the record. He relied upon what is sometimes called the principle in Hunter v Chief Constable of West Midlands [1982] AC 529, but which is more conveniently set out by Lord Diplock in Saif Ali v Sidney Mitchel & Co [1988] AC 198, 222:

"Under the English system of administration of justice, the appropriate method of correcting a wrong decision of a court of justice reached after a contested hearing is by appeal against the judgment to a superior court. This is not based solely on technical doctrines of res judicata but upon principles of public policy, which also discourage collateral attack on the correctness of a subsisting judgment of a court of trial upon a contested issue by retrial of the same issue, either directly or indirectly in a court of co-ordinate jurisdiction."

6. In this court his decision has been supported on that ground and also on the alternative basis that the admission was a representation of fact which the police have acted upon to their detriment.
7. It may help if I begin by discussing the origins, nature and consequences of a formal caution. For what follows I am indebted not only to counsel but also to His Honour Judge Richard May for his excellent article in [1997] Crim LR 491. The formal caution is not a creature of statute. In the case of adult offenders it seems to have evolved out of a longer standing practice in respect of juveniles. The first written reference which has been brought to our attention is Home Office Circular No.14 of 1985. That document refers to the practice of cautioning "in the case of juvenile offending". It states that cautioning "also represents a possible course of action in the case of adults". Attached to the Circular are some guidelines. As to the decision to caution, the guidelines provide that if

"prosecution is deemed not to be required in the public interest, it will often be appropriate to take no further action and this course should also be considered. However, the nature of the offence and the other public interest factors ... may make it more desirable to issue a caution, bearing in mind the caution's deterrent effect and impact on the offender as a formal mark of society's disapproval."

8. The criteria for issuing a caution are stated to be: (a) evidence of guilt which, following prosecution, would render conviction the more likely result than an acquittal; (b) that the offender has admitted the offence, and (c) that the offender has agreed to being cautioned.
9. The guidelines also state that where a person does not make a clear admission of the offence, as for example where intent is denied, a caution will not be appropriate, but that it would not necessarily follow that prosecution would be the alternative.
10. The Home Office issued a further circular in 1990 with the object of establishing national standards for cautioning and underlining the seriousness of the procedure. The purpose of a formal caution is stated to be (1) to deal quickly and simply with less serious offences; (2) to divert them from the criminal courts and (3) to reduce the chances of their re-offending. The conditions for cautioning remain unchanged, save that it is stressed that "the offender, (or in the case of a juvenile, his parents or guardian), must understand the significance of a caution and give informed consent to being cautioned."
11. To allay public anxiety about the possible inappropriate use of the caution a number of safeguards were built into the procedure, including the need to obtain the views of any victim of the offending.
12. Because there remained some public disquiet over the perceived over use of the caution, the Home Office issued a further circular in 1994. That circular remains current. The purpose is said to be "to discourage the use of cautions in inappropriate cases, for example for offences which are triable on indictment only; to seek greater consistency between police force areas; and to promote the better recording of cautions." No material changes are made with regard to the criteria justifying the use of the caution or as to the conditions needful to be present before a caution can be administered. So far as the recording of cautions is concerned, the police are advised to take care to distinguish between cautions and convictions which should normally be retained on separate sheets of paper.
13. By note 2(d) at p.4 of the guidelines it is stated that "in practice consent to the caution should not be sought until it has been decided that cautioning is the correct course. The significance of the caution must be explained: that is, that a record will be kept of the caution, that the fact of a previous caution may influence the decision whether or not to prosecute if the person should offend again, and that it may be cited if the person should subsequently be found guilty of an offence by a court. In the case of a juvenile this explanation must be given to the offender in the presence of his parents or guardian or other appropriate adult." The importance of the guidelines last was underlined by the Divisional Court in R v Commissioner of Police of the Metropolis, ex parte Thompson [1997] 1 WLR 1519, in which a decision to administer a caution was quashed where the admission of guilt had been sought as part of the cautioning process itself. Among the consequences of a formal caution may be (1) that it may influence the decision whether or not to prosecute if the person cautioned should offend again (see R v Commissioner of Police for the Metropolis, ex parte P [1996] 160 JP 367); (2) photographs and fingerprints may be kept for a period of three years instead of being destroyed immediately as would be the case if he were neither cautioned or prosecuted; (3) the caution retained on the offender's record may be cited in court following conviction of another offence; (4) its existence may deny the person cautioned the advantage of a good character direction in any subsequent criminal prosecution (see R v. Vye (1993) Cr.App.R 134 and R v David Martin (Times Law Reports 5th January 2000)).
14. All the above are characteristics which a formal caution shares with a criminal conviction. Still it is not the same, and the fundamental distinction lies in the fact that it is not brought about by any decision of a court of justice. Consequently, any attack upon the correctness of the admission of guilt is not an attack upon "the correctness of a subsisting judgment of a court of trial" so as to fall foul of the principle of public policy adverted to by Lord Diplock in Saif Ali v Sidney Mitchell & Co. But it may be and indeed is protested that there is in reality no difference between an admission of guilt precedent to the administration of a formal caution and a plea of guilty before a court of trial. Both the admission in the one case and the plea in the other may be false. Why, therefore, should the same policy considerations not apply to the formal caution which is, after all, a valuable feature of our criminal justice system; to which I would answer, firstly, that, even so, the public policy consideration does not arise, in that an attack on the admission to a police officer does not involve an attack on a court of co-ordinate jurisdiction; secondly, that the plea of guilty entered in a criminal court is open to public view and scrutiny and is subject to the supervision of a magistrate or a judge; thirdly, I would say that a conviction based upon a plea of guilty is nonetheless reviewable upon appeal if entered on a false basis or incorrect advice, whereas the only challenge to a formal caution lies by way of judicial review, which Mr Powell concedes would be an inadequate remedy in the present case.
15. In my view, therefore, the similarities between a formal caution and a conviction are not sufficiently close as to engage the so called Hunter principle of public policy. However, principles of public policy are not irrelevant to the question. It has long been a cardinal principle of public policy that those who have suffered a wrong should have the right to seek redress in the courts. Of course, that right is not absolute. It may be lost or limited according to circumstances, but it remains a right which should not be lightly curtailed as is not only recognized by the common law but by the European Convention of Human Rights in Article 6(1) and Article 13 (see Osman v United Kingdom [1999] 1 FLR 193).
16. So if I ask myself, what do considerations of policy and fairness require on the assumed facts of the present case? The response must surely be that Miss Abraham must be permitted to continue with her action.
17. But it is said that, regardless of considerations of public policy and fairness, the admission made by Miss Abraham has created an estoppel. It was a representation of existing fact and was clear and unambiguous. It was made with the intention that it should be acted upon. The police to whom the admission was made did act upon it, in that they adopted the caution procedure rather than some other course. Quite apart from the instinct which prompts me to rebel against the notion that an equitable doctrine may be invoked in order to procure an unfair result, I am not at all satisfied that the conditions of estoppel by representation have been made good. In Customs & Excise v Hebden Ltd [1953] 2 Lloyds Reports 382,397 Pearson J, as he was, stated:

"If the representations which are alleged to constitute the estoppel are caused by a breach of obligation on the part of the person seeking to take advantage of the estoppel, that is sufficient to dispose of it."

18. The principle has been reproduced in Halsbury, volume 16, paragraph 1045 in the following terms:

"A representation will be deprived of any effect as an estoppel if the making of it has been contributed to by some breach of duty on the part of the person seeking to take advantage of it."

19. For my part, I am prepared to accept that as a correct statement of the law. Here, on the assumed facts, a lady of previous good character had been brought to the police station under arrest on a false pretext. She must have been anxious about her two children from whom, perforce, she had been separated. Her admission was to an account of events which both she and Police Sergeant Cook knew to be false. True she had the advice of a solicitor but her admission was contributed to, if not caused, by the unlawful arrest and false recounting of events. Throughout Police Sergeant Cook was the Commissioner's servant. In those circumstances, I would unhesitatingly hold that the admission or representation has been "deprived of any effect as an estoppel".
20. Accordingly, I would allow Miss Abraham's appeal against the striking out.
21. By way of footnote, I should say something about Miss Abraham's claim for damages for assault arising out of an allegation that Police Sergeant Cook used excessive force in taking hold of her in the street. The injury was minimal. Rightly, in my view, the judge considered that the time and expense in trying the issue standing alone was disproportionate to the seriousness of the claim. It is not entirely clear from the judgment whether he struck out that aspect of the claim or gave summary judgment to the Commissioner. It matters not. If the main ground of claim is to continue, I can see no reason why this separate albeit trivial matter ought not to be revived also. The same facts will be in issue and the inclusion of this additional claim should not add a single minute to the length of the trial or a single penny to the cost.
22. LORD JUSTICE KAY: I agree.
Order: Appeal allowed; costs of the appeal, the costs relating to the application to strike out and the application for summary judgment to be the appellant's costs; case remitted for trial; costs relating to the preparation of the trial to be costs in the trial; application for permission to appeal to the House of Lords refused. (Order not part of the judgment of the court)