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 THE LIVERPOOL COUNTY COURT
(JUDGE PHIPPS)

		Royal Courts of Justice Strand London WC2 Thursday, 17th May 2001

Thursday, 17th May, 2001

1. LORD JUSTICE PILL:This is a renewed application for permission to appeal. Permission is sought to appeal a judgment of his Honour Judge Phipps, given on 24th October 2000 in the Liverpool County Court. The judge dismissed a claim by Mr. Edmund Shepherd that, first on 8th February 1997, and second on the following day, 9th February 1997, he had been wrongly arrested and falsely imprisoned by police officers. The trial which followed was, as Miss Genn, who appears for the applicant, has indicated, a lengthy one and it is not challenged, though it was a jury trial, that the judge was entitled to rule on the matters he did and which are now the subject of this application. Permission to appeal was refused by me upon a consideration of the papers and I have now had the advantage of oral submissions. They cover substantially the same ground as those contained in written submissions. However, they have been put persuasively by counsel.
2. The judgment was in considerable detail, covering 20 pages of transcript. It covered the issues which are raised. Miss Genn submits first that the judge has made an error of law in his approach to the evidence as to whether the arrests of the applicant were justified. Then it is further submitted that the judge tolerated a departure from the pleaded defence case which ought not to have been tolerated.
3. The events which led to the arrest and imprisonment for a short period of the applicant occurred in Cheshire. The skeleton argument states at paragraph 2:

"On 08/02/97 [the Saturday] the claimant had attended the area for the purpose of preventing some of various hunts meeting that day from achieving a kill. A large number of others also attended on that morning with the same intention ...

And paragraph 9 states:

On the Sunday [09/02/97], the claimant attended the area along with others (fewer than on the Saturday) for the purpose of demonstrating against bloodsports generally."

4. The Sunday was the anniversary of the tragic death of a protestor on a previous occasion.
5. The judge set out in considerable detail the evidence on which he relied in reaching his conclusion that the officers were justified in arresting the applicant and it is not suggested that he has misrepresented or misunderstood or insufficiently stated the evidence. The submission is first that there was insufficient evidence of an imminent breach of the peace to justify the arrests; and second that, even if there was, there was insufficient evidence that the applicant would be involved in any such breach. It is submitted that the evidence did not demonstrate any participation of the applicant in events from which it could reasonably be concluded that a breach of the peace would occur.
6. Counsel has referred to the judgment of Schiemann L.J. in Bibby v. Chief Constable of Essex Police (unreported, 6th April 2000). Schiemann L.J., at page 6 of the transcript supplied to me, sets out criteria as to when the now exceptional common law power of arrest, as Schiemann L.J. describes it, can be exercised.
7. That was a case where the issue was whether conduct by the person arrested had been such that a future breach of the peace could be apprehended and, as counsel accepts, several of the principles stated by Schiemann L.J. are inappropriate to the present case.
8. Schiemann L.J. states, having given earlier cases as authority:

"1. There must be the clearest of circumstances and a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty a citizen who is not at the time acting unlawfully ...

2. The threat must be coming from the person who is to be arrested ..,

3. The conduct must clearly interfere with the rights of others ..."

9. For the reason I have given, the other propositions do not arise.
10. Miss Genn submits that the use of the preventative power to which Schiemann L.J. was referring requires careful scrutiny, as the court recognised on that occasion. In the present case there was insufficient evidence, she submits, as to what would happen in the future at the moment when the arrests were made and there was nothing specific either as to time or as to place. Moreover, there was insufficient evidence of any participation by the applicant in conduct from which a likely breach of the peace by him could reasonably be inferred.
11. Miss Genn adds that the matter should be considered in the context of the Human Rights Act. I agree with the judge that the English law principles in the present circumstances do not need revision by reason of the Act coming into force.
12. Counsel has emphasised (and properly emphasised) the dangers involved in persons being arrested under this exceptional power, even where there is a reasonable apprehension that breaches of the peace will be committed by other people. Before turning to the judgment of the judge, I should add that I found the present situation to be quite different from some of those which counsel was contemplating, and I put those points to her. This was not a situation where, for example, on a public street large numbers of people can be expected to be present, when some of them behave badly and others who may have nothing to do with those behaving badly may, as counsel put it, be "scooped up". This is not a situation where, in a public place, a very large assembly of people occurred, amongst whom inevitably there would be those who either had no part whatever in the demonstration or could not be said to be party to the events by way of breach of the peace or potential breach of the peace which were occurring. In this case, it was on each occasion a police constable who took responsibility for the arrest and sought to justify his arrest by reason of knowledge available to him. Clearly there was a substantial police operation to deal with the anticipated demonstrations, and it was given the code name Operation Oats.
13. The judge set out in his judgment the events which occurred on Saturday, 8th February, prior to the arrest, and to the appraisal which police officers, including Chief Inspector Swindells, who was in control of the operation, had made. The judge refers to earlier incidents, one of which involved a number of vehicles carrying people whose faces were covered by balaclavas. One occurred at kennels at Sandy Way and another at the premises of British United Turkeys at Hockenhall Lane. Damage to a motor car occurred on the second occasion, and the owner of the first premises was found to have been shaken by what had occurred there. A group of people then went to Roughlow Farm. A group of about 15 people, the judge found, wearing scarves and balaclavas, came running up the drive and smashed a car window. A lady there was in a state of shock and very frightened. The judge found that "clearly, the events were organised". There was a gathering of a number of vehicles at Alford and a report of a further incident in Frog Lane, Millton Green. At that location, a man was beaten with a stick.
14. I need not refer to the incidents in more detail for present purposes. The police were using video film and in one place the claimant was identified on film wearing a checked shirt. There is no evidence of any violence being undertaken by him. The chief inspector, however, by 10 minutes to one in the afternoon had, in view of the disorder that had taken place, formed the view that there a very serious situation was developing. He gave instructions to members of the force.
15. A police officer has, of course, to exercise his own judgment in performing an arrest. It is not enough that an instruction is given, but the officer is entitled to have regard to what he has seen and what he knows of the circumstances. Clearly the officer concerned would have been briefed and the officers concerned in this case were a part of the team of officers who were dealing with the demonstrations which had been expected and which in fact occurred.
16. The applicant was arrested on the Saturday by Constable Rushton, who required a white Ford transit minibus to stop on the highway. The driver produced a tape recorder for the purpose of recording what occurred. The officer's evidence was that he arrested occupants of the van, including the applicant. He had been able to establish that a number of incidents of criminal damage and assault were occurring across the county. He says that the hunt was still going on and the breach of the peace that he apprehended was one that would take place in the immediate future -- that is, on the Saturday. He accepted that there was no evidence that the applicant had taken part in any of the violent incidents that morning which the judge had described, though the officer was in no doubt that breaches of the peace had occurred.
17. The judge sets out the submissions of Mr. Chipperfield, who then appeared for the applicant. He refers to the fact that the police were concerned with a group of protestors dressed in balaclavas and scarves and other means of concealing their identity. Again he fairly makes the point that an attempt at disguise may not necessarily involve an immediate threat to the peace, but in my judgment it is a factor which the officer was entitled to take into account.
18. The officer said that he formed the view that the claimant was part of a group of people who would act unlawfully in a manner consistent with the events which had occurred earlier and the judge held that it was a belief not only honestly held by Constable Rushton but quite reasonably held. The judge stated that he accepted the submission on behalf of the police officers that in the circumstances of this case it was sufficient to identify the claimant as part of the group.
19. As to 9th February, the judge described events first at Elm House, where a group of protesters appeared and where one of them blocked the way with her vehicle and was arrested for obstruction. A group including the applicant then went to the home of Mr. Murray, at Ravenswood House. They were trespassers on his property. There were 20 to 24 of them with covered faces. The judge sets out the conduct of the protestors on Mr. Murray's property, clearly accepting Mr. Murray's evidence. Faces were covered in one way or another, slogans were shouted and warnings were given by the chief inspector who had also arrived at the scene. Mr. Murray believed that if the police had not been there there would have been violence, and he felt threatened by what had occurred. There was evidence that the protestors made threats to Mr. Murray, including, as they left, "See you later" and "There won't be coppers here all the time."
20. On the occasion of 9th February the arrest was made by Constable Case, who was also a part of the police operation. He knew the circumstances of what had occurred on the previous day and what had occurred on the Sunday. He had been involved in the events. He thought it was a planned demonstration and that the protestors would go elsewhere and carry on as they had done. There were thought to be a number of vulnerable addresses, including that of Mr. Murray, who was Master of the Cheshire Beagles. Constable Case believed that the group, including the claimant, would have been driven to another location and continued the conduct which had not led to violence at Mr. Murray's premises in the circumstances described by the judge, but which may well have done so in the officer's view at other premises. Again the applicant was arrested in a van. The officer said:

"I arrested those in the van because I had a reasonable belief that the occupants of the van would go on to commit a breach of the peace, not because I was ordered to. I saw masked people running down the drive to the vehicles."

21. I have considered the submissions of counsel on this issue and the contents of the judgment. I have earlier made the point that this is a very different situation from one of a large crowd, including all kinds of people, on the public highway. The judge was entitled to find that on both days these were planned demonstrations. He was, in my judgment, entitled to hold that it was sufficient in the circumstances which existed to identify the claimant as part of the group. There can be no question that he was caught up innocently in it; he acted with the group on both days and he went from place to place. Clearly this was an organised demonstration using vehicles as a way of visiting places where demonstrations were planned to occur, including private premises. The claimant must have been aware of and a party to the conduct of the comparatively small group of people with whom he was consorting on both days. There is no evidence that the claimant himself was disguised, but I do not find it arguable to say that, on the facts as found by the judge, the judge was not entitled to conclude that, far from being someone who had been "scooped up", the applicant was fully a party to what was going on. He may not have used violence himself and he may not have used violence himself in the future. But he was plainly a party to the events which had occurred and which the officers said they reasonably apprehended would occur in the future.
22. In my judgment, the judge was also entitled to come to the conclusion that the belief of the officers that there was a real and present threat of a breach of the peace was justified. The officers were entitled to bear in mind the nature of the protestor's organisation and the matters of which they knew by reason of the earlier incidents. They were entitled to believe that, on the basis of their knowledge of the incidents, there was a real threat to the peace in the near future. The judge was entitled to accept that evidence and to hold that the arrests were justified.
23. Neither do I find merit in the pleading point which Miss Genn has put forward. The defence was quite fully pleaded. It was a lengthy trial in the course of which the officers were, as one would expect, cross-examined in detail. Counsel has referred to the recent decision of this court in McPhilemy v. Times Newspapers Limited and others [1999] 3 All ER 775. Reference is made to the judgment of Lord Woolf M.R. at 793 in relation to pleadings:

"This does not mean that pleadings are now superfluous. Pleadings are still required to mark out the parameters of the case that is being advanced by each party. In particular, they are still critical to identify the issues and the extent of the dispute between the parties."

24. In my judgment, the pleadings in this case sufficiently did that. In this type of situation the evidence given will often depart to some extent from the pleaded case. Whenever incidents such as these are described by a number of people, there will be variations and new matters, without any intent to tailor evidence, will be given. I find no evidence that the claimant was in any way prejudiced by the fact that evidence was given as to matters which were not included in the defence, and in my judgment the way in which the judge dealt with that cannot arguably be said to be wrong. He noted that that the essential facts of the case were not in issue. He says that he did not understand that it was being suggested that the evidence had been changed or tailored.
25. The essential facts of the case were not in issue to the extent that it is accepted, as I stated when beginning this judgment, that the applicant was part of a group of people going to demonstrate for a cause which they believed to be an important one and that a number of incidents occurred. The issue was primarily is to the inferences which ought to be drawn and whether the claimant could himself be said in the circumstances to have acted in a way in which the exceptional power of arrest was justified by reason of an apprehended breach of the peace in the future.
26. For the reasons I have given, my conclusion is that the judge was entitled to reach each of his conclusions. I do not consider it arguable that the claimant could succeed in this court on any of the points which have been raised. In those circumstances, the renewed application for permission to appeal is refused.
ORDER: Permission to appeal refused.