England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
(Miss Recorder Miskin)

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 5th April 2001

LORD JUSTICE HENRY:

1. This is the judgment of the Court. Early in the morning of 24th December 1995, Mr Balchin was arrested by the police outside his partner's home, and was injured in the struggle that followed. He brings proceedings against the police for wrongful arrest, false imprisonment, trespass to the person and negligence. Those proceedings were heard before Miss Recorder Miskin, who on 5th April 2000 found that the arrest of the claimant, Mr Balchin had been wrongful, and awarded him £8.000 damages. The police now appeal.
2. Because he was claiming false imprisonment, Mr Balchin was entitled to be tried "... with a jury..." under Section 66(3)(c) of the County Courts Act, 1984, this clearly not being a case within any of the exceptions to that entitlement under (c) above. The way that the expression "...with a jury..." is understood in cases of false imprisonment (and malicious prosecution, though that is not this case) is exemplified by the case of Dallison -v- Caffery [1964] 2 AER 610. There Diplock LJ (as he then was) explained at 619D:

"Since arrest involves trespass to the person and any trespass to the person is prima facie tortious, the onus lies on the arrestor to justify the trespass by establishing reasonable and probable cause for the arrest. ... One word about the requirement that the arrestor... should act honestly as well as reasonably. In this context it means no more than that he himself at the time believed that there was reasonable and probable cause, in the sense that I have defined it above, for the arrest... The test whether there was reasonable or probable cause for the arrest... is an objective one, namely whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe that there was reasonable and probable cause. Where that test is satisfied, the onus lies on the person who has been arrested ... to establish that his arrestor ... did not in fact believe what ex hypothesi he would have believed had he been reasonable. ... In the nature of things this issue can seldom seriously arise.

Next, as to procedure. In arresting [or] detaining... a suspected felon, a person is acting in furtherance of the administration of justice. It is a well-settled rule of procedure that the question whether he is acting reasonable is one to be decided by the judge. It may be that this rule reflects the judicial distrust of Jacobinism among juries at the formative period of this branch of English law; but it can at least be rationalised on the ground that the judge, by reason of his office and his experience, is better qualified that a juryman to determine what conduct is reasonable or unreasonable in furtherance of the administration of justice. In those days, however, the jury was the only tribunal which at common law was competent to determine disputed issues of fact. If there was conflicting evidence as to what had happened, that is what the conduct of the defendant in fact was, the jury alone was competent to resolve the conflict. But when what had happened was established whether by uncontradicted evidence or, in the case of conflict, by the jury's finding of fact, it was for the judge to rule whether the defendant's conduct was reasonable or unreasonable. This is still the position today where an action for false imprisonment... arising out of the arrest [or] detention... of a suspected felon is tried by judge and jury. It is for the judge to decide what facts given in evidence are relevant to the question of whether the defendant acted reasonably. It is thus for him to decide, in the event of a conflict of evidence, what finding of fact is relevant and requisite to enable him to decide that question. A jury, however, is entitled to base findings of fact only on the evidence called before it, and, as in any other jury trial, it is for the judge in an action for false imprisonment, to decide whether the evidence on a relevant matter does raise any issue of fact to fit be left to the jury. If there is no real conflict of evidence, there is no issue of fact calling for determination by the jury. This applies not only to the issues of fact as to what happened on which the judge has to base his determination whether the defendant acted reasonably, but also to the issue of fact whether the defendant acted honestly, which, if there is sufficient evidence to raise this issue, is one for the jury (see Herniman -v- Smith). For the reasons already indicated, however, where there is reasonable and probable cause for an arrest ... the judge should not leave this to the jury except in the highly unlikely event that there is cogent positive evidence that despite the actual existence of reasonable and probable cause, the defendant himself did not believe that it existed (see Glinski -v- McIver)."

3. We get from that authority the following:

a) the burden of proof is on the police to justify the arrest;

b) to do so, they must satisfy the judge that a reasonable man, assumed to know the law and possessed of the information that the arresting officer had, would believe that there was a reasonable or probable cause for the arrest;

c) while the above question is a question of law for the judge, it is a question he can only answer on agreed facts or uncontradicted evidence or, where the evidence is conflicting, by the jury's explicit finding of fact;

d) it is for the judge to decide what finding of fact is "relevant or requisite", and whether the evidence on a relevant matter does raise an issue of fact to go to the jury.

4. At trial all the evidence was heard in the presence of the jury, over two days. We have not a full list of witnesses, and only have transcripts of the police evidence. But it seems clear from the material before us that the claimant called evidence from Miss Samuel and Mr New, though we have found nothing in the material before us to indicate whether the claimant himself gave evidence.
5. At the conclusion of the evidence, we are satisfied from what we have been told by Mr Weddell of counsel for the police that counsel for the claimant and counsel for the police met, and agreed on a number of facts. The document is headed "Facts relevant to the decision to arrest and the decision to detain at the police station". Counsel then acting for the claimant asserted in his skeleton argument that "The respondent denies that the facts contained therein were agreed as stated". This came as something of a surprise to us. The heading on the document is plain. It was used before the judge as an agreed statement of facts without comment. Counsel who took the point was not instructed before us. Mr O'Neill, who represented the respondent before us, took no such point. Accordingly, we believe we can safely accept that document at face value. On that basis, the facts agreed were:-

"1. At 01.05 hours on 23rd December 1995, PC McCarty, PC Foster and Sergeant Fryatt attended 5 Frank Judd Court, St. George's Road. PC McCarty had received a report of a male hitting a female at the premises.

2. On arrival at 5 Frank Judd Court the door was answered by a man who said that there had been a fight but that it was over now. He invited the officers in.

3. Immediately inside the door is a narrow flight of stairs leading up to a landing from which the various rooms of the premises rooms lead off.

4. The officers entered the lounge where they saw the Claimant who was pacing around and holding a baby. The claimant was sweating profusely and was clearly agitated. He had an aggressive demeanour.

5. Also inside the lounge was Sharon Samuel who was crying and shaking. She was suffering from a fresh head injury which consisted of a large red swelling in the centre of her forehead.

6. PC McCarty explained why the officers had attended the premises. The Claimant sat down and said, 'It's over now, why don't you just fuck off'.

7. PC McCarty took Miss Samuel downstairs in order to talk to her without the Claimant being present. The Claimant remained upstairs with PC Foster and Sergeant Fryatt. While the Claimant was with Sergeant Fryatt and PC Foster, he slammed the door in Sergeant Fryatt's face and when Sergeant Fryatt warned him that he believed a breach of the peace had been caused, the Claimant replied 'Fuck off, it's nothing to do with you'. Sergeant Fryatt again warned the Claimant about his behaviour and when he did so, the Claimant walked up to Sergeant Fryatt so that his face was only 4 to 6 inches from Sergeant Fryatt's face and said to him, 'Yeah, and what, you'll fucking nick me, well nick me then'.

8. PC McCarty asked Miss Samuel whether the injury to her head had been caused by the Claimant and she told him that it had, she also told him that she was all right and that she did not want to make a complaint.

9. While PC McCarty was talking to Miss Samuel, the Claimant came downstairs and said to her, 'Don't tell them my name'.

10. Miss Samuel then went upstairs and the Claimant and PC McCarty followed. PC McCarty attempted to talk to the Claimant but the Claimant walked away and when PC McCarty followed him he slammed an internal door in PC McCarty's face. The Claimant also came towards PC McCarty in a threatening way and moved his head as if to head-butt PC McCarty who stepped back. PC McCarty saw that the Claimant was still very agitated and that he was breathing deeply and that his eyes were glazed. PC McCarty honestly decided that a breach of the peace had already occurred and that there was a risk of a further breach of the peace if the Claimant was not arrested. He did not arrest the Claimant immediately because he thought that if the Claimant were arrested inside and resisted arrest then it might be difficult to get him down the narrow flight of stairs. The Claimant asked PC McCarty to go outside with him and once they were outside, PC McCarty arrested him.

11. During the arrest the Claimant struggled both before and after handcuffs were applied.

12. At the police station the Claimant was brought before the Custody Officer who was Sergeant Wells. PC McCarty gave Sergeant Wells a complete history of what had happened in the house. He also told Sergeant Wells that the Claimant had been very emotional and aggressive, that the Claimant had struggled when arrested, that it had been necessary to restrain him using handcuffs and that the Claimant had continually pulled against the handcuffs using his weight.

13. Sergeant Wells noticed that the Claimant was sweating, very emotional and agitated and that his eyes were glazed. Sergeant Wells thought that the Claimant smelled of drink and that he was drunk. The Claimant was seen by Dr Pickstock who reported to Sergeant Wells that the Claimant would not allow her to make a proper examination and that he should go to the hospital when he was more co-operative.

14. At 04.58 hours the Claimant was spoken to by Sergeant Wells. At that time the Claimant was unco-operative, very aggressive and emotional.

15. At 05.10 hours Sergeant Wells noticed that the Claimant had calmed down and so he released him from custody."

6. Counsel also agreed on three questions to go before the jury, which are not relevant to this discussion.
7. Legal submissions were then made to the judge. The transcript makes clear that counsel for the claimant was submitting that the judge "... should address the question whether the arrest was lawful or not". Both parties were heard on that issue, and then the judge gave judgment.
8. The judge started by correctly defining the issue that she was required to resolve

"... whether or not the police had reasonable grounds for believing - because this was the ground they gave for making the arrest - that a breach of the peace was threatened or imminent."

She had before her the "list of agreed facts," and her judgment suggests that she used this as a frame of reference for what appears to a largely extempore judgment. She was to some extent paraphrasing the agreed facts, but analysis of the judgment shows that most of the agreed facts find their way into the judgment. The most significant omission related to number 10, and the sentence which follows after the description of Mr Balchin slamming an internal door in PC McCarty's face and approaching him as though threatening to head-butt him: he "... was still very agitated, and was breathing deeply, and... his eyes were glazed". We will return to this sentence and its significance later.

9. The judge clearly found difficulty in accepting the police evidence. First, Sergeant Fryatt's evidence was that Mr Balchin had slammed a door in his face. Sergeant Fryatt warned him that he would be arrested if the police had to be recalled to the premises. Because Sergeant Fryatt did not arrest him there and then, the judge inferred first that nothing bad enough in Sergeant Fryatt's eyes to warrant arrest had occurred, and second that this episode must therefore represent the high water mark of Mr Balchin's bad behaviour. But such a conclusion was based on disputed fact. When the point was put to Sergeant Fryatt he said

"... when our officers are called to domestic incidents ... we invariably try our best to calm the situation down, and that may involve warning people what the likely outcome is of their behaviour. ... That does not mean I have made a decision at that point to or not to make an arrest. ... when we deal with domestic violence incidents we try to calm both parties down to get a clearer picture of what has happened. On this occasion it was very difficult to calm Mr Balchin down."

The judge should not have drawn that inference against the Sergeant, particularly in the light of No. 10: she should have referred the question to the jury.

10. Second, the agreed facts (at No. 10) stated

"PC McCarty honestly decided that a breach of the peace had already occurred and that there was a risk of a further breach of the peace if the claimant were not arrested"

Despite that being agreed, the judge chose to find that

"I am left with the overwhelming impression that ... any possible or real reason for the arrest was not based [on the fear of attack on mother and baby] but on the fact that [the claimant] was behaving in a way that was difficult."

Later the judge was to revert to this theme, when, having said that PC McCarty arrested because he was frightened for the safety of Miss Samuel and the baby, she simply held: "In my judgment the evidence does not support that proposition". The judge had no jurisdiction to disbelieve PC McCarty. By her judgment as expressed she had identified an issue as to his credibility. That issue could only be resolved by the jury. She should have referred the matter to the jury.

11. One last example will suffice. The judge described the picture of Mr Balchin when he invited the police to come outside to talk to him as "... he was calming down ..."(judgment p.4), though she was to qualify it later "... the claimant was still very agitated" (judgment p.8) After Mr Balchin had slammed the internal door in PC McCarty's face, when he said he wanted to talk outside, he (in agreed fact No 10)

"was still clearly very agitated, his eyes were glazed, and he was breathing deeply ... he was still clearly very upset and aggravated, and I felt if I did not remove him from the premises that there would be further trouble"

PC McCarty remembered Mr Balchin shouting on arrest

"I just want to hold my kid, you can't arrest me, I've calmed down."

PC Foster also heard him claim that he had calmed down, and gave evidence that he had not, and that when he had asked PC McCarty to come outside, he was aggressive, still very agitated, and his eyes were glazed. After arrest and handcuffing he struggled quite violently. Sergeant Fryatt gave evidence that he was minded to arrest Mr Balchin to minimise the risk to his family, but saw that PC McCarty had done it. He described his abuse and shouting and screaming and violence on arrest. In short, there was a lot of evidence that he had not calmed down. All of these matters should have been left to the jury for them to decide.

12. The judge had started her judgment with the truism that these cases are fact-sensitive, that each case depends on its own facts. The judge acted as though she alone was trying the case, and she was not. Counsel had provided her with a copy of Dallison -v- Caffery (above), so it is puzzling that she went on a fact-finding exercise of her own. But whatever her reasons, none of this alters the fact that the judge had no jurisdiction to make the factual findings adverse to the police, which she did. What she should have done was to have summed up the case to the jury, with an agreed list of issues where there was a conflict.
13. It may be that the problems which arose in this case came from each side going for a knock-out victory of the kind that cannot be achieved when there is a dispute as to the facts. For reasons set out above, the disputed factual issues which the judge's judgment exposed could only be decided by the jury. But the police also argue that they are entitled to succeed on the basis of the agreed facts. We do not agree. What is sauce for the goose is sauce for the gander. If the judge identifies disputed factual issues upon which she needs findings in order to be able to give a ruling on whether or not there was reasonable and probable cause for this arrest, she is entitled to require that these be put to the jury for their decision. That is what went wrong in this case. Some might think that the agreed facts in themselves constituted reasonable cause, but the judge herself identified the relevant gaps, and it is not for this Court to speculate upon what the effect of filling them might have been.
14. Accordingly, in our judgment this appeal must succeed, and the judge's finding that the arrest was unlawful be set aside. It is now obviously too late to remit to the jury. Even if they could be re-assembled, they will have forgotten the evidence they heard now nearly a year ago. This case should therefore be remitted to the Portsmouth County Court for a retrial before another judge and jury.
ORDER: Appeal allowed with costs in the sum of £6,165.36; matter remitted to the County Court for rehearing before a different judge and jury; order of 5^th April 2000 set aside; claimant to repay £8,000 plus interest at the commercial rate within 28 days; no order as to the costs below. (Order does not form part of approved Judgment)