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 ORDER
HIS HONOUR JUDGE DURMAN
(Sitting at Stourbridge County Court)

		Royal Courts of Justice Strand London, WC2
		14 February 2003

1. LORD JUSTICE POTTER: This is an appeal by the Chief Constable of West Midlands Police against a ruling made by His Honour Judge Durman on 17 July 2002 in the course of a trial before the judge sitting with a jury to hear the claimant's actions against the West Midlands Police for assault and false imprisonment following her alleged wrongful arrest. The judge ruled that the evidence of the police, taken at its highest, did not establish reasonable cause for the arrest of the claimant with the result that judgment was given for the claimant in an agreed sum of £6,000 in respect of damages.
2. The claim arose out of the arrest of the claimant by Woman Police Sergeant Wendy Reece at about 5.30 pm on 21 August 1998 in Constitution Hill, Birmingham. The officer had been called to the scene as a result of an incident a short while earlier when a traffic warden, Miss Abbotts, had sought to issue a parking ticket in respect of a blue Rover car illegally parked on a clearway leading into the city centre. That car belonged to the claimant's nephew. He returned to it as Miss Abbotts was in the middle of writing out the ticket; she was unable to complete it because, ignoring her presence, he got into the car and drove off into a private road nearby. What followed was the subject of considerable dispute at trial. However, because of the nature of the judge's ruling, I shall recount events on the basis of the defence evidence as to what happened.
3. After the driver of the car had driven off the claimant came out of the shop outside which the vehicle had been parked and, according to the evidence of the traffic warden, angrily told her to throw the ticket away. As Miss Abbotts put it in two separate answers in evidence:

"A. She actually tried to grab my ticket book from my hand.

Q. .....

A. She just stood by me and tried to grab it with two hands. She tried to knock it out of my hands."

Asked what was the consequence, she said:

"A. It made me feel quite nervous, really. I am not used to that kind of thing in my job. It is very rarely that it happens, but it does shake you up."

She said that the whole incident with the note book lasted some five seconds and she managed to retain the book in the end.

4. A short while later a more serious incident occurred. Miss Abbotts walked to the private road and tried to fix the ticket she had by now written to the back windscreen of the Rover car. Again, according to her, the driver came running out of the shop to which he had returned and told her:

"If you put that ticket on my car I will run you fucking over."

Nonetheless, Miss Abbotts stuck the ticket on the window. The driver got into his car and reversed it towards Miss Abbotts as she stood there. It was her view that he tried to run her over, however she managed to get out of the way. The car then stopped, the driver got out, screwed up the ticket and threw it down.

5. Miss Abbotts walked off. She walked back to Constitution Hill, found a male colleague and they radioed for police to attend. Sergeant Reece arrived shortly afterwards. In evidence Miss Abbotts stated that, when Sergeant Reece arrived, she told her what had happened. However, on elucidation in evidence, her recollection was that she told the sergeant of the attempt to run her over but did not tell her of the note book incident. She said the sergeant had asked if there was anyone else with the driver and she, Miss Abbotts, had told her that there was, and that person was actually standing around the corner outside the shop. She was able to point out the claimant to the sergeant as she stood there. Sergeant Reece went over and approached her. Miss Abbotts said that she saw Sergeant Reece and the claimant standing there for a time and then the arrival of another police car. She did not hear any of the conversation but said that the police were trying to arrest the lady who was resisting arrest.
6. In cross-examination Miss Abbotts said that her recollection of the incident was hazy on a number of things. However she had a note book which contained eight pages of notes about the incident compiled shortly thereafter. Whereas in evidence she described the actions of the claimant as being an attempt to grab the note book from her hand, in her notes she recorded:

"She then pushed my ticket book but did not knock it to the floor as I gripped it hard."

When challenged about this in cross-examination and asked which version was right, she said:

"I thought what I just said was right, but obviously looking at my book it is not how I explained it there, is it?"

7. When Sergeant Reece gave evidence, she described Miss Abbotts as appearing very shaken on her arrival at the scene. Referring to her note book, she stated that Miss Abbotts said that she had tried to issue a ticket to a driver of a vehicle and while she was doing that a woman had tried to knock the book of tickets out of her hand. She said after that the vehicle had been driven to another location. Miss Abbotts had followed, again tried to issue the ticket, and the vehicle had been reversed at her, causing her to jump out of the way. She said that record in her note book was not a direct record of what was said by Miss Abbotts but a paraphrase of her own understanding at the time. She said that the picture she had in her mind was that the claimant had tried to knock the note book out of Miss Abbotts' hand with a sweep of the back of her hand, which she demonstrated in the witness box. She said that, having listened to Miss Abbotts' complaint, she became aware of the claimant standing on the pavement some distance away from them and that Miss Abbotts identified her as the woman who tried to knock the ticket book out of her hand. Sergeant Reece said that in her mind this amounted to a common assault. She said she went over and told the claimant she was investigating an allegation of assault by the traffic warden and an investigation involving the vehicle concerned which had been driven at the traffic warden. She asked her for her name and address and the claimant would not give either. Sergeant Reece said she explained the reasons she wanted it, namely as the claimant was a possible offender for assaulting the traffic warden and a material witness to the incident concerning the vehicle. She said that despite repeated requests, the claimant refused to give her name or address. She said the claimant became agitated, waving her shopping bag and handbag around in Sergeant Reece's general direction and repeatedly calling the traffic warden a liar.
8. Sergeant Reece then informed the claimant that she was arresting her for failing to provide a suitable name and address in order to be summoned on suspicion of common assault, as well as for obstruction and for breach of the peace. She also cautioned her. She took hold of her arm but the claimant moved away by pulling her arm, using her shopping bags as shields. At that point two other police officers came up and there was a general struggle, into the details of which it is not necessary to go for the purposes of this appeal.
9. As to Sergeant Reece's state of mind at the time she arrested the claimant, she said:

"I had in mind that she may have committed a common assault on the traffic warden and also that she may be committing the offence of breaching the peace or likely to commit a further breach of the peace."

10. Briefly, it was the case for the claimant that Sergeant Reece was not the first officer at the scene. It was her case that she was first approached by an aggressive male officer who told her that if she did not divulge details in relation to her nephew she would be arrested. A woman police officer, namely Sergeant Reece, then arrived on the scene and asked her for her own details, which she did not give because she said she had done nothing wrong. She was then arrested without due cause and handcuffed and bundled into a police car without any caution having been given and without being informed of the reason for her arrest. In the process she suffered pain, distress and humiliation and, in particular, an injury to her shoulder.
11. The case for the police was that she was lawfully arrested under the provisions of Section 25 of the Police and Criminal Evidence Act 1984 on suspicion of having committed an offence of common assault, and to prevent a breach of the peace. The matter was tried before His Honour Judge Durman and a jury at Birmingham County Court as already indicated.
12. When the evidence had been heard the judge invited counsel for the parties to address him on the legal point whether, even assuming the facts were found at their highest in favour of the police, that entitled Sergeant Reece, as matter of law, to effect an arrest. Mr Brough, for the claimant, suggested to the judge that it might be premature to do so on the basis that, if the judge withdrew the matter from the jury based on such an assumption of facts and the matter went to appeal, then the balance of the issues would remain unresolved and the time spent in the course of the trial up to that stage would have been wasted.
13. At that point counsel had between them tentatively agreed that certain questions should be put to the jury as to the factual issues. The first related to the facts relied on by the police as justifying the arrest, namely the allegation, as Sergeant Reece understood it, of assault, and the second was the question whether or not the claimant was behaving in a manner constituting a breach of the peace. As to the first, Mr Brough proposed that the jury should be asked the question whether Sergeant Reece was told by the traffic warden, Miss Abbotts, the claimant had tried to knock the ticket book from her hand while she was issuing the ticket. The judge then observed:

"If that is what happened - if that is what the sergeant was told - then in those circumstances I have to decide as a matter of law whether the sergeant had reasonable grounds for arresting her. I am not persuaded that, if that was what happened, the sergeant would have reasonable grounds for suspecting that a common assault had been committed by Mrs Jarrett. I am not at the moment satisfied that, if that was what was found, that would be the conclusion that I was bound to draw."

14. Mr Brough expressed doubt about whether the judge should proceed on the basis of that view without first putting a question or questions to the jury. The judge observed that, if he was wrong, then the Court of Appeal could interfere. He said that it was, in his view, absurd to have an artificial question left to the jury. Despite further reservations expressed by Mr Brough, the judge said that it seemed to him well within his competence to come to the conclusion that, if all that Sergeant Reece had been told was that contained in the question, then he would have no difficulty in coming to the conclusion that a reasonable police officer could not on that basis have reasonably suspected that a common assault had been committed.
15. When asked to address the judge, Mr Young for the police submitted that, if someone had something in their hand and another person tried to knock it from their hand, that was necessarily an assault for the purpose of the criminal law, involving, as it did, either the use of unlawful force applied to the victim (which was a battery) or the threat of such force which amounted to an assault.
16. In a discussion of law which followed - and included reference to the relevant passage in Archbold 2002 at paragraph 21-101 (now to be found in Archbold 2003 at 21-101) - the judge indicated his disagreement. Having proved unsuccessful on that score, Mr Young urged that, in any event, because it was the evidence of Sergeant Reece that the claimant had also been arrested on the grounds of a breach of the peace, the question should be put to the jury whether the defendant had satisfied them that the claimant was behaving in an agitated state as described. The judge indicated that in his view, since the claimant had become agitated after she was told she was being arrested, and if she was being wrongly arrested she had every reason to be agitated, the question of breach of the peace did not arise.
17. I would pause here to observe that the judge was plainly wrong on his recollection on this point. As already recounted, Sergeant Reece's evidence was that the claimant's agitation had arisen before she was ever told that she would be arrested.
18. Having made his position clear to counsel, the judge stated that he would recall the jury and explain that it was not necessary to submit any questions to them. When the jury were recalled the judge gave them a detailed explanation of the fact that common assault was not an arrestable offence and of the provisions of Section 25 of the Police and Criminal Evidence Act (see further below) on which the police relied as justifying the arrest of the claimant for refusal to supply her address.
19. Having described the state of the evidence, the judge gave his grounds for holding that the claimant must succeed on the basis that the justification put forward for the arrest had failed. In this respect he said:

"Members of the jury, I preface what I have to say about this by explaining what an assault is. An assault is committed when unlawful physical force is deliberately, or recklessly used against the person of another. It may consist of any physical touching or restraint, a blow, or a push or a grabbing. It is also assault if you aim a blow at the body of another and fail in fact to hit him if you in fact meant to hit him.

In this case, Traffic Warden Abbotts does not say that the claimant tried to hit her, or tried to grab her hand, or anything of that sort. She said in evidence that using both her hands the claimant tried to pull the parking ticket book away from her, but she - Traffic Warden Abbotts - kept hold of it. Well, that in my judgment is not capable of amounting to an assault, but that isn't really the question which I am dealing with now. It is what Traffic Warden Abbotts told Sergeant Reece.

According to what Sergeant Reece said in evidence, Traffic Warden Abbotts told her that the claimant tried to knock the book from her hand as she was issuing a ticket, and you may recall the gesture of Police Sergeant Reece as she swept her right hand upwards and indicated what she understood the Traffic Warden was telling her as if sweeping the book away as the Traffic Warden was writing the ticket. But as she later made clear, that is what she - - as Sergeant Reece later made clear, that is what she, Sergeant Reece, imagined. The Traffic Warden didn't say she was writing a ticket. And the question that I have to decide is whether, if that was said, or something along those lines as Sergeant Reece gave in evidence was said to her by the Traffic Warden, was that such as to ground in the mind of the Sergeant a reasonable suspicion that an assault was committed on the Traffic Warden."

20. The judge then further rehearsed the differences in evidence as between the traffic warden and Sergeant Reece before continuing:

"Members of the jury, there is no evidence the Traffic Warden told her that she had been attacked, or threatened, or that the claimant had tried to hit her ..... in those circumstances, in my judgment, even if you accepted that what Police Sergeant Reece said about the claimant trying to strike at - trying to knock the book out of her hand - even if you accepted that - in my judgment that does not give rise to any reasonable grounds for suspecting that the claimant had committed a common assault on the Traffic Warden. There was, in those circumstances, no reason to contemplate taking proceedings against the claimant for assault, no reason to require her name and address for the purpose of issuing a summons and no right to arrest her."

21. The grounds of appeal in this case have been very shortly stated. They are that the judge erred in law in the exercise of his discretion by ruling that "knocking the note book" from the traffic warden's hand did not amount to a common assault, and (ii) ruling that the issue regarding the existence of a breach of the peace should not be left to the jury.
22. I shall deal first with the judge's ruling on the second point because the appeal under this head was not pursued with great vigour by Mr Young. As already indicated, in addition to the suspected assault on the traffic warden, Sergeant Reece sought to justify the arrest on the ground that the claimant's conduct and behaviour in her presence - ie, that of becoming excited and wielding her bags - was conduct that amounted to a breach of the peace committed in the officer's presence; alternatively, was such as to cause her to apprehend that a breach of the peace was imminent. It was plain that in the judge's view she had, by her evidence, failed to establish a breach of the peace on either basis. I, for my part, agree. In R v Howell [1981] 73 Crim.App.R 31, after a review of various authorities, the Court of Appeal (Criminal Division) per Lord Justice Watkins (page 37) defined a breach of the peace in this way:

" ..... there is a breach of the peace whenever harm is actually done or likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance."

23. The conduct of the claimant relied on by Sergeant Reece in this case involved no questions of injury or possible threat of injury to any member of the public, save, arguably, Sergeant Reece herself. The words amounted to nothing. No verbal threats were said to have been made. Mere agitation does not involve a breach of the peace. So far as the waving of the bags was concerned, the officer did not in her evidence suggest that they were being wielded at her or were more than a symptom of the claimant's agitation. In relation to none of those matters did the officer suggest she feared imminent violence to herself or her property or that there was any reason or necessity for public alarm.
24. In the circumstances the judge was, in my view, entitled to take the view that, taking the evidence at its highest, there were no proper grounds established for arrest in relation to a breach of the peace or apprehended breach of the peace.
25. Turning now to the judge's first ruling, it is appropriate first to quote from Section 25 of the Police and Criminal Evidence Act 1984, which provides as follows under the heading General Arrest -

"(1) Where a constable has reasonable grounds for suspecting that any offence which is not an arrestable offence has been committed or attempted, or is being committed or attempted, he may arrest the relevant person if it appears to him that service of a summons is impracticable or inappropriate because any of the general arrest conditions is satisfied.

(2) In this section "the relevant person" means any person whom the constable has reasonable grounds to suspect of having committed or having attempted to commit the offence or of being in the course of committing or attempting to commit it.

(3) The general arrest conditions are -

(a) that the name of the relevant person is unknown to [them] and cannot be readily ascertained by, the constable,

(b) that the constable has reasonable grounds for doubting whether the name furnished by the relevant person as his name is his real name,

(c) that -

(i) the relevant person has failed to furnish a satisfactory address for service, or

(ii) the constable has reasonable grounds for doubting whether an address furnished by the relevant person is a satisfactory address for service."

There are also further general arrest conditions set out under paragraphs (d) and (e) but they are not relevant to this case.

26. In this case, as was made clear before the judge and has been repeated before us, it is not disputed on behalf of the claimant that, upon the officer's evidence, the general arrest conditions (sub-section 3 (a), (b) and (c)) were made out. The evidence also established that the officer purported to arrest the claimant, having made clear to her that she had failed to provide a satisfactory address for service of the summons. Thus the lawfulness of the arrest turned upon the question whether, in the terms of Section 25 (1), the officer had "reasonable grounds for suspecting that [an assault had] been committed or attempted" by the claimant.
27. In that connection, as will be clear from the passages in the transcript I have quoted, the judge appears to have concentrated entirely, or at any rate almost entirely, upon whether or not, on the basis of what the officer had recorded in her note book and repeated in her evidence (i.e., that while the traffic warden was trying to issue a ticket the claimant had tried to knock the book of tickets out of her hand) the full ingredients of an offence of assault were made out. That was no doubt an important aspect of what the judge had to consider. However it was not, in my view, the beginning and end of the matter.
28. The question to be answered was the wider question, whether at the time of effecting the arrest of the claimant the officer had reasonable grounds for suspecting that she had assaulted, or attempted to assault, the traffic warden. In that respect, as made clear in the case of O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286, the test as to whether there are reasonable grounds for suspicion to justify an arrest is partly subjective, in that the arresting officer must have formed a genuine suspicion that the person being arrested was guilty of an offence, and partly objective, in that there must be reasonable grounds for forming such a suspicion. Such grounds can arise from information received from another, even if it subsequently proves to be false, provided that a reasonable man, having regard to all the circumstances, would regard them as reasonable grounds for suspicion. While in theory and for the purposes of legal analysis it may be possible to separate out the subjective and objective strands of the test, in the context of a case of this kind it seems to me that they are, save in rare cases, inextricably intertwined and that to seek to decide whether a police officer has objectively got reasonable grounds of suspicion that an offence has been committed by a particular person without first determining, as a matter of fact, whether the suspicion to which he speaks is genuine is highly undesirable.
29. If, for the purposes of abbreviating proceedings and eliminating the necessity for findings by the jury on the factual issues, a judge decides to perform the task which the judge undertook in this case, it is essential to be properly focused on the issue which falls for decision. That issue required the judge (a) to concentrate on the officer's state of mind at the time of arrest and (b) to approach the matter on a broad basis taking into account not only what she had been told by the traffic warden but what she had herself observed. In her case, upon her evidence, she had received a complaint from a visibly upset traffic warden that a woman had attempted to knock from her grasp a traffic warden's ticket book at the time she was issuing the ticket. She, that is to say Sergeant Reece, then proceeded to talk to the woman in question who, in response to the allegation passed on to her, made no denial but became agitated in her behaviour in a manner which suggested that she was excitable and which was consistent with the behaviour which had been alleged against her.
30. Assault, as a criminal offence, may take two forms: (1) unlawful application of force upon a victim, which is called battery, (2) causing the victim to fear an imminent application of force (see per Lord Steyn in R v Ireland, R v Burstow [1998] AC 147 at 161). In the light of that the judge seems to have made his ruling on the basis that upon what the officer was told, namely that the claimant had tried to knock the book from the warden's hand, (1) it was not clear that any battery had taken place, (2) it was also not clear whether or not the warden had by reason of the attempt actually feared imminent application of force, i.e, feared that force would be applied to her. The argument for the police, however, is that (2) might, and might readily, have been reasonably inferred by the officer in the circumstances of this case. Having seen a shaken warden complain of the attempt to knock the book from her hand, and having seen the nature of the claimant's excitable reactions to being questioned by the officer, I consider that the officer plainly had reason to think that what had happened to the warden amounted to an assault, whether in the form of a battery by violent contact with the book held by the warden, or in the form of a violent physical action taken in an attempt to knock the book from her hand, which action would at least have caused the warden to fear such physical contact. If it were otherwise, the warden's complaint would not have been made in the terms recorded by the officer.
31. I must accept the submission of the appellant. As Mr Young has submitted to us, the standard required by the officer is suspicion and no more. It falls well short of prima facie proof (see Hussein v Choung Fook Kam [1970] AC 942 at 948-9). Nor does it require a positive belief (see Parker v Chief Constable of Hampshire Constabulary (CA) unreported, 25 June 2002, where it was held that an officer who had reasonable grounds for thinking it "possible" that one of two people in a car was someone he was entitled to arrest had been justified in arresting that person. It seems to me that, on the assumption which the judge was obliged to make (because he did not leave it to the jury) that the officer was honest in her suspicion, he was in no position to say that such suspicion was not reasonable.
32. I am satisfied the judge was wrong in his first ruling, and I would allow the appeal.
33. LORD JUSTICE CHADWICK: I agree.
34. MRS JUSTICE BLACK: I also agree.
Order: Appeal allowed