England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Eady)

		Royal Courts of Justice Strand London WC2 Wednesday, 11th April 2001

1. LORD JUSTICE KAY: This application arises out of a claim made against the Chief Constable of the Thames Valley Police for damages for assault and battery, false imprisonment and malicious prosecution. The matter was heard by Eady J sitting with a jury and resulted in an order that the Chief Constable pay damages of £19,803.30 inclusive of interest to Mr. Purchase, the claimant, together with 75 per cent of his costs (save for some specific limitations not relevant to this appeal). The Chief Constable now seeks permission to appeal against that order.
2. On 3rd September 1996 the claimant went to Slough Police Station. He wished to make a complaint that during a telephone conversation that he had made earlier to the police station he had heard abusive language in the background. There was an issue at the hearing as to whether or not he was drunk when he went to the police station.
3. One of the officers to whom he had spoken, Inspector Amin, was not at the police station but returned accompanied by another officer, Sergeant Smith, in order to speak to the claimant. The Inspector told the claimant that he was not prepared to accept the complaint because the complainant was drunk. The claimant was asked to leave but responded by saying "Go on, arrest me then."
4. What happened in the next few minutes lay at the heart of the dispute and there were very different accounts given by the two sides. The claimant's case was that he was not drunk, nor was he, as is alleged, abusive, but that the Inspector and the Sergeant manhandled him towards the door. Without warning they jumped on his back causing him to fall to the floor.
5. Once he was on the floor the complainant alleged that he was attacked by four officers. He said that he had been punched, kicked and elbowed and that the Inspector had repeatedly tried to bang his head against both a metal chair leg and the floor.
6. PC Dempsey, one of those allegedly involved in the attack, had applied a figure of 4 leg hold. This involved crossing the legs at the ankles and then pushing the feet up towards the buttocks, with the intention of causing pain and thereby reducing resistance. The hold is a recognized method of restraint but has obvious dangers if performed with excessive violence. In this case it was common ground that it had resulted in the claimant suffering a broken knee.
7. The police version was quite different. They allege that the claimant had been abusive during the earlier telephone calls and that he was both drunk and abusive when he attended at the police station.
8. He had been asked to leave the police station but had refused. He was warned about his conduct and when he continued to behave in an abusive manner the Inspector had placed a hand on his shoulder in order to arrest him for a breach of the peace and disorderly conduct in a police station. Before the officer could complete his explanation for the arrest, the claimant turned away to shrug off the Inspector. The Inspector had tried to place him in a bear hug but the claimant reacted by seizing his arm and throwing him over his shoulder.
9. Sergeant Smith had gone to the aid of the Inspector and together they brought the claimant to the floor. Two police constables, Hurley and Dempsey, had answered a panic alarm activated by another officer and had joined in the restraint of the claimant.
10. It was alleged that the claimant was thrashing about on the floor to resist his arrest and that the Inspector had cradled the claimant's head to protect him from injury. PC Dempsey had applied the figure of 4 leg hold in a perfectly proper attempt to restrain him, using no more force than was reasonably necessary. It was accepted that the claimant had, however, suffered the broken knee.
11. The claimant was later charged with and prosecuted for violent conduct in the police station but was acquitted.
12. There were therefore significant factual issues to be resolved by the jury. Seven questions were agreed to cover these areas of dispute and were in due course answered by the jury. The questions and the answers provided by the jury were as follows.

Question 1: "Has the defendant proved that there came a time when Inspector Amin placed his hand on the shoulder of the complainant for the purpose of arresting him for breach of the peace and/or disorderly conduct in a police station?" Answer: "Yes".

Question 2: "Has the defendant proved that, prior to that incident, the claimant had been behaving in an abusive manner?" Answer:"Yes."

Question 3: "Has the claimant proved that Inspector Amin and Sergeant Smith jumped on his back?" Answer: "Yes."

Question 4: "Has the claimant proved that he was lying on the floor not offering resistance?" Answer: "No."

Question 5: "Has the claimant proved that he was deliberately kicked or punched or elbowed by one or more of the police officers?" Answer: "No."

Question 6: "Has the claimant proved that Inspector Amin repeatedly tried to ram his head against the seat or the floor?" Answer: "No."

Question 7: "Has the claimant proved that PC Dempsey used the figure of 4 lock other than to restrain the defendant?" Answer: "Yes."

13. It is clear that those answers took both sides by surprise. After being given time to consider the position, Mr. McCormick, who appeared on behalf of the Chief Constable, submitted to the judge that the different answers to questions 1 and 3 were not ones that he had anticipated. He asked for further time to research the consequences. He subsequently submitted that the judge should not register verdicts on the basis that the answers given by the jury were perverse.
14. The judge having heard submissions concluded that the answers were not logically inconsistent. The allegations of false imprisonment and malicious prosecution failed because of the jury's conclusions on questions 1 and 2. The allegation of assault succeeded because of the answers to question 3 and more particularly question 7.
15. Damages in the sum already referred to were assessed and the judge concluded that in all the circumstances it would be just if the Chief Constable paid 75 per cent of the claimant's costs.
16. Mr McCormick seeks permission to challenge two aspects of the decision. First, he seeks to renew the argument rejected by the judge that the answers were perverse and second he contends that the judge's order for costs was wrong.
17. So far as the first of those matters is concerned, Mr. McCormick suggests, quite properly, that the test is as laid down by Purchas LJ in Abbassy and Another v Commissioner of Police of the Metropolis [1991] 1 WLR 385, 400:

" . . . a necessary inconsistency which would be sufficient to vitiate the trial on the basis that the jury must have based their deliberations on a false approach or otherwise been unreliable so as to justify a retrial."

18. It is the submission that no jury, approaching this matter in the light of the evidence that they had heard, could properly have concluded that both a lawful arrest was taking place and that the two officers had jumped on the back of the claimant. Counsel submits that this was a case where, although there were a series of events, the jury, in answering questions 1 and 3, were dealing with the same aspect of that series of events. They had heard two different versions which were entirely in conflict with one another and they reached a conclusion that was not consistent with either of those two versions. He submits that in those circumstances nobody could have anticipated that the jury would give such answers to the questions and that the conclusion one is driven to is that those answers are perverse.
19. I, for my part, like the judge, do not accept that that is arguably the situation. When a jury consider an incident of this kind, they are not bound to find all of one side's evidence to be true or all of that side's evidence to be false. They may come to a conclusion, in an incident such as this, that the truth lies somewhere between the two versions. It was open to them in the circumstances of this case to conclude that, when the police talked about how the incident had started, they were giving a truthful version of what had occurred, that the claimant had indeed been abusive and difficult, and that he was drunk and that, in the circumstances and having regard to his behaviour, the Inspector went to arrest him. It was open to them thereafter to reach a conclusion that the way in which the arrest was carried out was unlawful and involved the use of excessive violence. If that was so, then notwithstanding the way in which the attempt to arrest him had started, there may well have come a time when the two officers did indeed, as is alleged, jump on his back. I can see no logical inconsistency in the jury reaching such a conclusion. It was open to them to do so. Whether it was expected or not by those who were present is not the issue that has to be resolved. The issue is whether they could properly reach such a conclusion. I am satisfied that it is not arguable that their conclusion was perverse or that it demonstrated any logical inconsistency. For these reasons I would refuse permission in relation to the first of the grounds.
20. The second ground relates to costs. Mr. McCormick acknowledges straightaway that the question of costs was one for the judge to exercise his discretion and recognizes that he has a difficult task in persuading this court to interfere with the exercise of that discretion. In giving his reasons for reaching a conclusion that the Chief Constable should pay three quarters of the costs of the claimant, the judge set out carefully the arguments advanced by counsel. They were that the trial had been lengthened, possibly even doubled, by the fact that it was a jury trial, which would not have been the case if the allegations had been limited to assault. He also recognized and submitted that the claimant had not succeeded in his claims for malicious prosecution and false imprisonment and that the Chief Constable had succeeded on those. He finally pointed to the fact that the claimant had failed in making a claim for special damages which had originally been suggested to be in excess of £300,000. That claim for special damages had failed. Eady J, having recognized the arguments, said of them:

"All those things are true and there are various ways in which I can reflect that in the order in an attempt to do justice between the parties."

21. He then went on to reach the conclusion to which I have referred. It seems to me that the judge had clearly considered all the matters that were appropriate for him to consider and that there is no realistic prospect that this court would be persuaded that his resulting conclusion was not one within the range of discretion given to him under the rules. For those reasons I consider that the second ground also fails. I would refuse this application.
22. LORD JUSTICE MUMMERY: I agree. The application for permission to appeal is refused.
Order: Application refused.