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 BIRMINGHAM COUNTY COURT
(His Honour Judge Bruce Coles QC)

		Royal Courts of Justice Strand London WC2 Tuesday, 24th July 2001

Tuesday, 24th July 2001

1. LADY JUSTICE HALE: This is the defendant's appeal with the permission of the trial judge against orders made by His Honour Judge Bruce Coles QC, sitting with a jury in the Birmingham County Court, on 21st September 2000. He ordered that judgment be entered for the claimant on his claim against the police for assault, false imprisonment and malicious prosecution in the total sum of £9,595 inclusive of interest. The defendant challenges the finding in favour of the claimant for malicious prosecution, and, consequently, the award of damages for malicious prosecution and the award of exemplary damages. The claimant cross-appeals with the permission of Robert Walker LJ against the jury's failure to make any award of aggravated damages despite their having made an award of exemplary damages.
2. The incident giving rise to the claim took place on the evening of Friday 16th July 1993. The police were engaged in large numbers in an operation code named "Corbin", raiding premises known as Frames 2 Snooker Hall, Walford Road, Sparkbrook, Birmingham under the Misuse of Drugs Act. We do not, of course, have a transcript of the oral evidence given to the jury, but the flavour of the respective contentions of the parties can be gained from their pleadings and written statements.
3. The claimant's case was that he went to the snooker hall to look for his brother. He asked a police officer standing nearby whether he could go in and look for his brother. This was refused. He started to walk up the steps to the hall door and he was pushed away by a police officer, whom he believed to be Police Constable Amadeo. He was then taken hold of by a number of police officers, kicked on the shin, kidney-punched and held by the neck. He was eventually handcuffed and carried to the police van where further assaults took place. He was not told why he was being arrested. He was told that they would think up something when they got him to the police station.
4. The claimant was taken to Stechford Police Station and detained. He was then seen by a police surgeon and lodged a complaint. Photographs were taken of his injuries. These clearly show a nasty gash on his shin and marks on his neck. He was charged with two offences; first, threatening behaviour under section 4 of the Public Order Act 1986 and, second, assault with intent to resist or prevent arrest under section 38 of the Offences Against the Person Act 1861. He was released at 5.00 in the morning. The second charge was later reduced to assault on a police officer in the execution of his duty under section 51(1) of the Police Act 1964. He was tried for those offences in the Birmingham Magistrates Court in April 1994 and acquitted of both charges.
5. The defendant's case was that, when the claimant was told by police officers that he could not enter the snooker hall, he tried to push past and became abusive. He refused to take no for an answer. When PC Amadeo spread his arms in an attempt to prevent him getting in he knocked PC Amadeo's arm down. PC Amadeo then arrested him for the Public Order Act offence, believing that he would be violent towards PC Amadeo and other officers. He was unable to tell the claimant why he was being arrested because the claimant pushed him again in the chest, and that was the source of the second charge. With other officers, therefore, he restrained the claimant and took him to the van. The claimant struggled violently and refused to enter the vehicle. He fell into the van and continued to struggle inside and had to be further restrained; but he was told in the van why he had been arrested. PC Amadeo was also examined by a police surgeon later that evening.
6. The questions put to the jury by the learned judge on the issue of liability and their answers were as follows:

"1.Has the Defendant satisfied you on the balance of probabilities that PC Amadeo suspected that the Claimant:-

(a)had been swearing

YES

(b)was pushing past him in a further attempt to enter the snooker hall

YES

2.Has the Defendant satisfied you on the balance of probabilities that the Claimant was told of the reasons for his arrest when he was in the police van

NO

3.Has the Defendant satisfied you on the balance of probabilities that the Claimant struggled once the officer took hold of his arm

YES

4.Has the Claimant satisfied you on the balance of probabilities that he was deliberately:-

(a) kicked by an officer causing injury to his shin

YES

(b)punched by PC Richard to the right side of his body

NO

5.Has the Claimant satisfied you on the balance of probabilities that in the van:-

(a)his legs were deliberately stamped on

NO

(b)He was deliberately grabbed by the throat

YES

6.Has the Claimant satisfied you on the balance of probabilities that PC Amadeo did not honestly believe that the Claimant was guilty of the charges

YES"

7. It is relevant to this appeal to note that the jury questions suggested on behalf of the claimant included the following:

"1]Has PC Amadeo satisfied you that he reasonably suspected the Claimant used threatening, abusive or insulting words or behaviour?"

8. And:

"5]Has the Claimant satisfied you, on the balance of probabilities, that PC Amadeo and others lied in alleging that the Claimant:-

(i)used threatening, abusive or insulting words or behaviour as claimed by PC Amadeo;

(ii)struck PC Amadeo on the right side of his chest?"

9. Miss Studd, who appears in this court as she did in the court below, accepts that she did not argue in favour of that distinction being drawn in the questions put to the jury at the time when they were put.
10. The questions put to the jury on the issue of damages and their answers were as follows:

"1.What award do you make to the Claimant in relation to your finding that the Claimant was falsely imprisoned from the time he should have been told the grounds for his arrest until he was informed of such grounds when he appeared before the Custody Officer.

£100.00

2.What award do you make to the Claimant in relation to your finding that the Claimant received a deliberate kick to his shin and was deliberately grabbed by the throat.

£1750.00

3.What award do you make to the Claimant in relation to your finding that the Claimant was maliciously prosecuted.

£2500,00

4.What award, if any, do you make to the Claimant in relation to his claim for aggravated damages.

No award

5.What award, if any, do you make to the Claimant in relation to his claim for exemplary damages.

£5,000"

11. In this appeal Miss Studd (for the defendant) argues that the jury's answers to the questions on liability were inconsistent and unsustainable. The argument is that the case had been run throughout on the basis that the claimant had been charged in order to cover up the police's unlawful acts, that they had no good reason to arrest the claimant at all and that the events outside the snooker hall were not as the police alleged them to have been. So once the jury had found that PC Amadeo did indeed suspect that the claimant had been swearing and was pushing past him, so that the arrest would have been lawful if only they had told him why, there was no basis for them to decide that the defendant had no honest belief in the claimant's guilt. Hence there must have been reasonable and probable cause to prosecute. The remark in the van, "We will think of something later", is not relevant to the issue of reasonable and probable cause, although it might be relevant to the issue of malice. But the authorities are quite clear that one cannot infer lack of reasonable and probable cause from malice alone. The jury preferred the defendant's account of what had gone on outside the snooker hall and the judge was therefore wrong to conclude that the case for malicious prosecution was made out. He should either have concluded that the jury's verdict did not assist him and should then have ordered a retrial or entered judgment for the defendant. She suggests that question 6, although it is not worded in that way, was designed to deal with the issue of malice, which is not the same thing at all.
12. The counter argument is that there was no inconsistency in the jury's answers. They found that PC Amadeo did suspect that the claimant had been swearing and was pushing past him in an attempt to enter the hall. That made the initial arrest and the later detention prime facie lawful. However, they found that the claimant was not told the reasons for his arrest while he was in the police van. That made a short period of false imprisonment while he was in the van and before he reached the police station. They then found certain assaults by the police proved (and one is bound to comment that that is not surprising given the medical evidence and the photographic evidence of those injuries). They found there was no honest belief that the claimant was guilty of the charges, and there were two charges: the public order offence and the assault on the police. It is argued that there could have been suspicion for the purpose of the arrest, but that might not have amounted to a reasonable and probable cause for prosecution because that would have needed more; or, secondly, that the answers to question 1 were relevant only to the public order offence, whereas question 6 dealt with both the public order offence and the police assault offence. The arrest on the public order offence could be lawful even if the prosecution for that and the police assault was not.
13. The law is clear. There are four ingredients of the tort of malicious prosecution: the prosecution, an acquittal, a lack of reasonable and probable cause and malice.
14. As far as reasonable and probable cause is concerned, the leading case is the decision of the House of Lords in Glinsky v McIver [1962] AC 726. This makes it clear that there has to be objectively reasonable and probable cause for the prosecution but the prosecutor must also have an honest belief in that reasonable and probable cause. Malice alone cannot lead to an inference of lack of reasonable probable cause. It may very well be that a prosecutor is motivated by malice, such as personal hatred or a desire for revenge, but nevertheless has objectively reasonable and probable cause and an honest belief that such is the case. The position is set out in the speech of Lord Radcliffe at page 753:

"The action for malicious prosecution is by now a well-trodden path. I take it to be settled law that if the defendant can be shown to have initiated the prosecution without himself holding an honest belief in the truth of the charge ... he cannot be said to have acted upon reasonable and probable cause."

15. It is also clear from the authorities that the lack of reasonable and probable cause can lead to an inference of malice.
16. For my part, I cannot see any necessary inconsistency in the jury's verdict. They were asked about, and found, a suspicion sufficient to justify an arrest on the public order offence. But they found that PC Amadeo did not have an honest belief that the claimant was guilty of both the charges. They were not asked whether the claimant had in fact struck PC Amadeo after the arrest in the manner suggested. The closest the case came to this were the claimant's own suggested questions which separated those issues. It is in my view too late for the defendant to complain that those questions were not put in that separated fashion to the jury.
17. It is also in my view clear that there was evidence from which the jury could conclude that there was a lack of honest belief. I do not accept Miss Studd's argument that the remark in the van, if the jury accepted that it had been made, was only relevant to malice. It must also have been relevant, or potentially relevant, to whether there was an honest belief in the charges which were eventually preferred against the claimant. Nor do I accept the argument that this case had been presented on both sides as an all or nothing case, so that, if the jury accepted any of the defendant's case, they were bound to accept the whole apart, of course, from the assault. The jury, as is so often the case, took a middle course. They accepted part of the case against the defendant but they rejected other parts of it. That is a course that they were entitled to take, and for my part I would be most reluctant to entertain a suggestion that this court should seek to interfere with what the jury concluded. I would therefore dismiss the appeal.
18. The cross-appeal raises a novel and short point. Mr De Mello argues that it was inconsistent to make no award for aggravated damages and then to award £5,000 in exemplary damages. He relies upon the case of Thompson v The Commissioner of Police for the Metropolis [1998] QB 498. He accepts that the guidance given by Lord Woolf in that case does not in so many words require there to be an award of aggravated damages before there can be an award of exemplary damages, but he commends the recommendation at page 514 that a more structured approach to the guidance given to juries in these actions is now overdue. He does not, however, I believe, complain that the judge did not engage in such a structured approach. He then relies on paragraph 8, which explains the purpose of aggravated damages:

"Such damages can be awarded where there are aggravating features about the case which would result in the plaintiff not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award. Aggravating features can include humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest or the prosecution which shows that they had behaved in a high handed, insulting, malicious or oppressive manner either in relation to the arrest or imprisonment or in conducting the prosecution. Aggravating features can also include the way the litigation and trial are conducted."

19. Exemplary damages are explained in paragraph 12:

"Finally the jury should be told in a case where exemplary damages are claimed and the judge considers that there is evidence to support such a claim, that though it is not normally possible to award damages with the object of punishing the defendant, exceptionally this is possible where there has been conduct, including oppressive or arbitrary behaviour, by police officers which deserves the exceptional remedy of exemplary damages. It should be explained to the jury: (a) that if the jury are awarding aggravated damages these damages will have already provided compensation for the injury suffered by the plaintiff as a result of the oppressive and insulting behaviour of the police officer and, inevitably, a measure of punishment from the defendant's point of view; (b) that exemplary damages should be awarded if, but only if, they consider that the compensation awarded by way of basic and aggravated damages is in the circumstances an inadequate punishment for the defendants; (c) that an award of exemplary damages is in effect a windfall for the plaintiff and, where damages will be payable out of police funds, the sum awarded may not be available to be expended by the police in a way which would benefit the public ...; (d) that the sum awarded by way of exemplary damages should be sufficient to mark the jury's disapproval of the oppressive or arbitrary behaviour but should be no more than is required for this purpose."

20. Mr De Mello accepts that the court does not say in so many words that "if you give exemplary you must give aggravated"; but given the clear similarity between the circumstances in which both are appropriate, either, he says, as a matter of principle, both should be awarded, or, he says, it was perverse of the jury to award only exemplary damages in this case. He points to the fact that there was material here, in the kick, in the grabbing of the throat, in the prosecution itself, in the remark about thinking up something and in the way in which evidence had been given which was humiliating, insulting and degrading such as would justify an award for aggravated damages. Nevertheless, he accepts that the judge directed the jury, in a passage which is not crystal clear but to the effect that they should not be thinking, or they might not think, that aggravated damages were appropriate if they had in mind a figure of less than £1,000 in respect of such damages, and he rightly does not quarrel with that as a direction to the jury.
21. For my part, I cannot read the guidance given in Thompson as suggesting that where you have the one you have to have the other. The judge directed the jury very clearly on the different purpose of the different types of damages. When one stands back from the case the jury's awards are completely explicable, particularly bearing in mind the direction as to the minimum they might consider appropriate for aggravated damages. They did pitch the award for the assault towards the upper end of the bracket suggested to them by the judge. Once again, I would be most reluctant to interfere with what in my view was a perfectly sustainable and sensible conclusion reached overall by the jury in respect of the appropriate measure of both compensation and punishment for what took place on that evening; and so I would also dismiss the cross-appeal.
22. LORD JUSTICE LONGMORE: I agree. I would only add on the cross-appeal in relation to damages that, if it were to be the law that aggravated damages had to be awarded in a case where exemplary damages are awarded, the conclusion in this case could easily be that, aggravated damages not having been awarded, the award of exemplary damages would have to be set aside. That, of course, is not Mr De Mello's submission for the claimant. He submits that exemplary damages having been awarded he is in entitled as of right to an award of aggravated damages. I am satisfied that that argument is not correct and that it was open to the jury, despite awarding exemplary damages, to make no award of aggravated damages on the facts of this case, especially since, as my Lady has observed, the judge said that, if they had in mind a figure of less than £1,000 for aggravated damages, they should not in fact make any award of aggravated damages at all. Mr De Mello rightly does not submit that this guidance given by the judge to the jury was wrong and it follows that I agree with my Lady that the appeal and the cross-appeal must both be dismissed.
Order: Appeal and cross-appeal dismissed. The respondent is to have the costs of the appeal apart from the costs of applying for leave to cross-appeal; public funding certificate assessment of the respondent's costs; 28 days to pay the judgment debt. (Order does not form part of approved judgment)