England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(Mr Recorder Harbage)

		Royal Courts of Justice Strand London WC2 23rd August 2002

23rd August 2002
1. LORD JUSTICE ALDOUS: This case was set down for 10 o'clock. Mr Ashleigh-Nicholson, a litigant in person, has not arrived. It is now half past ten. This is the second occasion on which he has not arrived. In those circumstances I propose to give judgment as I have read the papers. The order will not be drawn up for ten days to enable Mr Ashleigh-Nicholson to seek to have it set aside if he so wishes.
2. This is an application brought by Mr Ashleigh-Nicholson for permission to appeal against the order of Mr Recorder Harbage in the County Court at Birmingham dated 23rd November 2001, which order gave judgment in favour of the first defendant, the Chief Constable of Staffordshire Police, and the second defendant, the Chief Constable of West Midlands Police. It gave judgment against him in an action in which Mr Ashleigh-Nicholson had sought damages for unlawful arrest by the Staffordshire Police on 24th March 1997, unlawful detention by the Staffordshire Police on 24th March, unlawful detention by West Midlands Police on 25th March, unlawful arrest by the West Midlands police on 17th April, unlawful detention on 17th April and generally damages against those defendants for unlawful detention.
3. The basic facts are not in dispute and are as follows. On 19th October 1996 the West Midlands police were telephoned by Belinda Nicholson, the former wife of Mr Ashleigh-Nicholson. She complained that Mr Ashleigh-Nicholson had caused damage to her car with acid. That I will refer to as the "acid complaint". On 2nd November 1996 Belinda Nicholson reported to West Midlands Police that Mr Ashleigh-Nicholson was forcing her front door with a chisel or a crow bar.
4. On 5th November 1996 Mr Ashleigh-Nicholson was interviewed in relation to the chisel complaint. He was arrested by Police Constable Taylor at Rose Road police station, which is in the West Midlands Police jurisdiction. He was later charged with criminal damage to two window locks.
5. On 24th March 1997 Mr Ashleigh-Nicholson was arrested by Police Constable Harvey of Staffordshire Police in response to an entry which related to the acid complaint. That entry had been placed on the Police National Computer by West Midlands Police. The arrest took place at Mr Ashleigh-Nicholson's home at about 7.10 p.m. that evening. He was then taken to Burton police station at approximately 7.20. He was detained there until he was transferred into the custody of West Midlands police officers at one minute past 12 on 25th March 1997. Mr Ashleigh-Nicholson was then taken to Rose Road police station in Birmingham, where he arrived at approximately 1.29 a.m. on 25th March. He was detained there until his release on section 47(3) bail at approximately 11.30 later that day. Thus he spent approximately 16 hours in police custody. He was neither interviewed nor charged, but was given bail to return to Rose Road police station on 17th April 1997 at 1.00 p.m..
6. Mr Ashleigh-Nicholson answered his bail on 17th April 1997. He was arrested by Police Constable Withy, an officer of West Midlands police, then swiftly dearrested and released without charge. This all happened in the space of approximately 15 minutes.
7. There was at the trial considerable dispute between Mr Ashleigh-Nicholson and West Midlands Police as to when an entry was made on the Police National Computer concerning the acid complaint. This incident had been reported to West Midlands Police on 19th October 1996 and at some stage the information contained in the Police National Computer came to the knowledge of the Staffordshire Police. In particular, there was a dispute as to whether the computer mentioned that there was a warrant for his arrest.
8. Mr Recorder Harbage heard evidence from the two police constables and from Mr Ashleigh-Nicholson. He had to consider the question of the warrant, and since the entry on the computer regarding the report of the acid on the car on 19th October and most reports and statements which were made available at the time no longer existed, he had to rely upon the written and oral evidence. In those circumstances he had to make up his mind as to whose evidence was the most reliable.
9. The Recorder, having seen the witnesses, preferred the evidence of both police officers to that of Mr Ashleigh-Nicholson. In his judgment he said, in relation to an account as to whether a summons was provided by Mr Ashleigh-Nicholson:

"I reject his account of this part of the incident and concerning what happened at Burton police station, I find the claimant to be vague and inconsistent. He claims that he was told he was arrested on warrant. Indeed, his submission now is that the Police National Computer entry, rightly or more probably wrongly, contained reference to a warrant. On a balance of probabilities, I find that he was not told about a warrant at the time of his arrest. I have heard evidence from Police Constable Harvey and Sergeant Fellows, who again I find to be straightforward and honest witnesses. Their evidence is that a warrant was never mentioned."

10. In relation to the issue of which party held the summons, to which I have shortly referred, the Recorder preferred the evidence of the police that Mr Ashleigh-Nicholson possessed the summons and showed it to Staffordshire Police during his detention. Mr Ashleigh-Nicholson had claimed that he possessed no such summons at the time and had the summons been in his possession it would have been written down on the property schedule of the police.
11. The Recorder held that the information about Mr Ashleigh-Nicholson held on the Police National Computer must have been entered by PC Withy after 5th November 1996. He further decided that the reason for the arrest had not been a warrant, as he believed the evidence of Police Constable Harvey and Sergeant Fellows that a warrant was never mentioned to Mr Ashleigh-Nicholson upon his arrest. I have read the essential part of his judgment on that matter.
12. The Recorder also held that he was satisfied that Police Constable Harvey thought that the Police National Computer report gave him reasonable grounds for suspicion that Mr Ashleigh-Nicholson had committed an arrestable offence, that the Police National Computer was objective justification for the officer making the arrest and that Police Constable Harvey exercised his discretion properly.
13. Mr Ashleigh-Nicholson's account that he was not given full reasons for his arrest until his release on the morning of 25th March 1997 was completely rejected. Therefore, the Recorder chose not to have regard to the authority of Christie v Leachinsky [1947] AC 573. The Recorder concluded his judgment by ruling that the detention of Mr Ashleigh-Nicholson by both the Staffordshire Police and the West Midlands Police was neither unlawful nor excessive.
14. The grounds of appeal in this case turn upon the findings of the judge about whether he was arrested on warrant. It is sought to be said that the Recorder erred in law and in fact when considering the evidence.
15. At paragraph 3.2 of the defence of the Staffordshire Police it was pleaded:

"The claimant was arrested following a check on the Police National Computer which showed that he was wanted on warrant by the second defendant."

16. At the trial the Recorder accepted Police Constable Harvey and Sergeant Fellows' version that a warrant had never been mentioned at the time of the arrest and concluded that the pleading, to which I have referred, was in error. In that respect it is said that the judge erred.
17. It is correct that the amended defence did refer to the question of a warrant in the form that I have referred. However, it is important to bear in mind that part of the judgment which I have already read and also this part of the judgment:

"It is curious that 'warrant' is mentioned in the first defendant's pleading. It has not been a matter of evidence called by the first defendant or, indeed, the second defendant and although that is there in the pleadings, I am satisfied that it appears there in error. I am satisfied that the claimant was not wanted on warrant and that nothing was said at the time of his arrest about a warrant."

18. That was a finding of fact to which, in my view, the judge was entitled to come. He could in no way be bound by the pleading. He based himself upon the evidence that he heard, and in those circumstances had to come to the conclusion that he did having believed the two police officers. I have no doubt that a judge can reject part of a pleaded case of a defendant and still reject the claim. This is what happened in this particular case.
19. It is important also to bear in mind that having found the facts in this case, the judge then went on to consider the relevant issues in this case. He said at page 14:

"These findings of fact enable me now to deal with the first real issue in this case. That is: have the first defendants shown -- and, of course, the burden is on them -- on a balance of probabilities that the claimant's arrest at about ten past seven on the night of 24th March 1997 was unlawful?"

20. The judge then went on to consider the three questions which have been answered as set out in Hough v The Chief Constable of Staffordshire Constabulary. He answered all those questions and then came to the conclusion that the first defendants were not liable. He then did the same in respect of the second defendants and came to the same conclusion. The result was that he was left in no doubt that Mr Ashleigh-Nicholson's claim could not succeed.
21. The application for permission to appeal was first considered by Dyson LJ on paper. He said:

"There is no real prospect of overturning the central findings of fact which led the Recorder (who applied the correct legal principles) to dismiss the claim."

22. I have no doubt that that statement was completely correct. I, therefore, would dismiss this application.
23. LORD JUSTICE KEENE: I, too, have read the papers in this matter. I agree with the judgment just delivered and have nothing to add.
ORDER: Application refused. Order not to be drawn up for ten days to allow for representations from the Claimant.