England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Tuesday, 5th June 2001

1. LORD JUSTICE LONGMORE: This application for permission to appeal arises out of an unfortunate incident that obviously caused Mr Mallon considerable distress as it happened on his birthday when he was celebrating with friends on 17th December 1994. He went out with a number of friends and they visited a number of public houses. By the time they arrived in Bexley Heath they had already been to a number of public houses. In Bexley Heath they went to the King's Arms, the Trading Post and the Wrong'un. It was at the Wrong'un that the incident in respect of which Mr Mallon seeks permission to appeal occurred.
2. The judge found that the police, for one reason or another, had decided to descend on the Wrong'un Public House in comparatively large numbers; overall, I understand that there were about fifteen of them. It seems that there was some suggestion from one of the previous public houses that the police ought to be called but that was cancelled. Nevertheless, the police decided to go to the Wrong'un and to speak to the publican there and, as the judge said, "as it would seem to me, get him to conclude, that on their advice he ought to ask these young men, the group, to leave."
3. That was extremely unwelcome to the group. There is some dispute as to whether Mr Mallon was in fact the loudest in his complaint. But there is no dispute that in due course the others left and Mr Mallon remained.
4. THE APPLICANT: I am sorry, I was not the last one in the pub.
5. LORD JUSTICE LONGMORE: If you say so. The judge has found that you were - - no, perhaps he has not. I accept that from you, you were not the last to leave.
6. But there is no dispute that there was a violent incident which led to the breaking of Mr Mallon's arm. Mr Mallon did decline to leave and he ended up face down on the floor in the course of the police trying to restrain him. His left arm was under his body and then the police tried to get his left arm out from under him in order to handcuff him. In the course of that manoeuvre Mr Mallon's left arm was broken as a result of one of the police officers, as the police put it, falling on his arm.
7. Mr Mallon maintained at the trial that that was a deliberate act on the part of the police or alternatively that it was at the very least a negligent act on the part of the police, and particularly Police Sergeant Gallehawk who was the one who broke Mr Mallon's arm in the course of the violent manoeuvring that was taking place.
8. The judge found that there was no evidence of any deliberate breaking of the arm by the police, nor was it negligent. He held that the police used no more force in the course of the incident than was reasonable and necessary to restrain Mr Mallon and that the breaking of Mr Mallon's arm was, as he put it, a very unfortunate accident.
9. Mr Mallon seeks permission to appeal. He represented himself in front of the judge and he has competently represented himself in front of me in the course of this application for permission to appeal. His notice of appeal was served out of time, but he tells me - and I accept - that he composed it within time and it did not reach the right destination within time.
10. There are seven grounds of appeal which have been supplemented by Mr Mallon's own comments on the case and also by his skeleton argument, all of which I have considered. The main ground of appeal is a direct attack on the judge's reliance on the evidence of Mr Downs whom the judge regarded as an independent and reliable witness. It was on the basis of Mr Downs' evidence that the judge made his critical finding:

"Having gone to arrest him, what did these police officers do? They took hold of him and they put him to the floor and in doing so, he was struggling, as I find, and his arm was broken. That was not the fault of any police officer. It was not a deliberate act. It was not done intentionally. It was a very unfortunate accident."

11. Mr Mallon submits that Mr Downs did not see the entirety of the incident and that his evidence was considerably less reliable than the judge gave him credit for. He did not, for example, says Mr Mallon, see the police officer tumbling forward on to his arm which was the essence of the police case. He also, according to Mr Mallon, adapted his statement to say it was the police who first said that Mr Mallon's arm was broken, thus bringing it into line with the police evidence, whereas it was Mr Mallon who shouted first that his arm had been broken. The question for me is whether it is reasonably arguable that those criticisms of Mr Downs' evidence would give a real prospect of success in any appeal.
12. I should perhaps add, because it is associated with this in a way, that the first ground of appeal itself says that the judge misapprehended the facts because he said that the appellant's arm may have been broken in the fall to the ground when it was common ground that the break occurred later than that. I have read the judge's critical finding based as it is on Mr Downs' evidence. It seems to me that, in that finding, the judge is accepting that the breaking of Mr Mallon's arm did occur later than the fall, after he had fallen to the ground. Overall, it seems to me that it must be a matter for the judge at trial to assess the reliability of the witnesses. If a judge at trial, having heard evidence from the police and from Mr Mallon, decides to accept the evidence of someone who is independent of either side that is a matter for the judge and it must also be a matter for the judge as to whether that witness is truly independent. Mr Mallon has suggested at one point in his submissions that Mr Downs may have been a stooge for the police. It is also for the judge to decide whether or not that witness is reliable. It is entirely clear from page 34 of the transcript before me that the judge did consider carefully whether it was right to accept Mr Downs' evidence or whether there were aspects in which it was unreliable.
13. The next ground that Mr Mallon has developed orally in front of me this morning - and I will come back to his written grounds for appeal - is that the police themselves were not consistent in their account of matters. Police Sergeant Gallehawk, Police Constable Crowther and Police Sergeant Shardan did say in their notes and statements that Police Sergeant Gallehawk had fallen on Mr Mallon's arm in the course of the struggle I have described. No other police officer present put it like that. Most significantly, submits Mr Mallon, Detective Constable Reardon, who was the other one of the policemen who was most immediately involved with the attempts to restrain Mr Mallon, said nothing in his original notes about anyone falling on Mr Mallon's arm but, as Mr Mallon puts it, beefed up his statement when it came to trial to say he had seen that happen. Those were matters all before the judge.
14. The judge was not, as such, minded to accept the police evidence immediately for what it was. What persuaded the judge was the independent evidence of Mr Downs. I do not think it is arguable that those discrepancies, which are the sort of discrepancies that frequently occur in trials of this kind, could give any prospect for appeal in this case.
15. The other matters which Mr Mallon has raised in his notice of appeal seemed to be of considerably less weight: that the judge would not let witnesses read out their statements - that is not how litigation is conducted in the current era; that the judge would not let Mr Mallon ask all the questions he wanted and interrupted when police officers were struggling to find answers. That can be no more than the ordinary way in which a judge has to make sure that only relevant material is deployed during the trial. It is said that the judge led police witnesses and put words in their mouths when they could not answer the appellant's questions. The judge said in his judgment - and this I have to accept - that since Mr Mallon was a litigant in person the judge did feel it necessary to ask some fairly hostile questions of the police in order to make sure he fully understood what the dispute was between Mr Mallon and the police in order to decide the matter.
16. The next complaint is that the judge reduced the trial estimate without discussion. The position as to that is the trial was originally estimated for three days. It took place over two days, concluding before the lunch time break on the second day. The evidence was all given. The judge has given a full judgment. There is no reason for Mr Mallon to feel that too little time was taken over investigating this unfortunate incident. He submits that the judge prevented him from referring to medical evidence but the medical evidence related mainly to the quantum of the claim. The quantum of the claim was dealt with in full by the judge in case there was a prospect of a successful appeal and a different judgment being entered.
17. Lastly, in his notice of appeal Mr Mallon refers to a matter of what he calls video evidence. There is a dispute as to this along the following lines, that there were video cameras in the public house which may or may not have recorded the incident. Mr Mallon rang the public house the day after the incident and asked if he could have a copy of the tape which he assumed was in the video. The public house referred Mr Mallon to the police whom they said had already taken the material. At the trial what emerged and was accepted by the judge was that there were no tapes as such, the video cameras being just so as to enable the staff to see what was going on at variouse points of the public house. Before the trial Mr Mallon wrote to the owners of the public house, Messrs Wetherspoon, and they replied that as a matter of usual course the cameras have tapes which are destroyed within a month. It seems to me that that does not take the matter anywhere. The letter refers to the time of the letter. One does not know what the position would have been three years earlier and still less does one know what, if anything, if there had been any tapes, the cameras would have recorded.
18. I have considered Mr Mallon's other comments in his manuscript and his skeleton argument. I know he finds this very difficult to accept, but the truth is that there was a trial lasting one-and-a-half days which did investigate this incident. In my judgment, there is no prospect of any successful appeal and so I must refuse his application.
Order: Application refused