England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LIVERPOOL COUNTY COURT
HIS HONOUR JUDGE MACMILLAN
5LV12308

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th December 2006

Lord Justice Moore-Bick :

1. In August 2002 the appellant, Mrs. Susan Rowlands, and her family were living at 90 Eastham Road, New Ferry on the Wirral peninsula. The house across the road, No. 89, was occupied by a group of people who, from Mrs. Rowlands' point of view, might be described as troublesome neighbours. On 15^th August Mrs. Rowlands and her family had returned from a holiday in Spain; the following day, 16^th August, was their first full day back at home. It seems that the people who lived at No. 89 were due to leave the house the next day and were celebrating their imminent departure with a party. According to Mrs. Rowlands, the party had gone on all day and had spilled out of the house into the front garden. There were about twenty people present and the party was rather rowdy, with a lot of loud music being played and plenty of drinking.
2. By about 9.00 p.m. Mrs. Rowlands and her family had had enough and she telephoned the police to complain. She was told to ring again if the noise got any worse. It did, so at about 10.00 p.m. she telephoned the police once more and a mobile patrol was sent in response. The two officers who attended the scene were P.C. Patterson and P.C. Marshall of the Merseyside police. They paid a visit to No. 89 Eastham Road and things quietened down, but as soon as they had left the noise began again and shortly afterwards the two policemen returned. Having spoken again to the occupants of No. 89, P.C. Patterson went across the road to No. 90. There followed an altercation between him and Mrs. Rowlands as a result of which she was arrested in front of her children, placed in handcuffs and taken to the police car. She said that the pain in her wrists was excruciating. P.C. Patterson got into the back of the police car with her and when she asked him to loosen the handcuffs he tugged at them, deliberately causing her further pain. She was taken to Birkenhead police station where she was detained for about an hour and a half. She was later charged with assaulting a constable in the execution of his duty and an additional offence of obstructing a constable in the execution of his duty. Some seven months later in March 2003 she was tried before the Liverpool magistrates. P.C. Patterson gave evidence for the prosecution. He said that Mrs. Rowlands and the young people who were at No. 90 Eastham Road at the time had shouted abuse and had become aggressive towards him. He had tried to calm them down, but Mrs. Rowlands had continued to shout abuse and behave in an aggressive manner. P.C. Marshall also gave evidence. However, the magistrates did not accept the police evidence and Mrs. Rowlands was acquitted of the only outstanding charge against her, namely, obstructing a constable in the execution of his duty.
3. As a result of these experiences Mrs. Rowlands brought proceedings in the Liverpool County Court against the Chief Constable of Merseyside police seeking damages for assault, false imprisonment and malicious prosecution. In her particulars of claim she claimed damages for the injury, pain and suffering she said she had suffered in the course of her arrest. She also claimed aggravated damages in respect of the affront to her dignity and exemplary damages in respect of what she alleged were the arbitrary, oppressive and unconstitutional actions of the police.

The trial

4. The case came on for trial before His Honour Judge MacMillan and a jury on 23^rd February 2006. The jury were asked to answer five questions, to which they gave the following answers:

1. Have the police proved that it is more likely than not that P.C. Patterson thought that Mrs. Rowlands was likely to cause a breach of the peace? No

2. Have the police proved that it is more likely than not that the use of handcuffs by P.C. Patterson to restrain Mrs. Rowlands was reasonable? No.

3. Has Mrs Rowlands proved that it is more likely than not that she was dragged backwards by P.C. Patterson using the handcuffs? Yes.

4. Has Mrs. Rowlands proved that it is more likely than not that P.C. Patterson yanked the handcuffs in the back of the car to cause her pain? Yes.

5. Has Mrs. Rowlands proved that it is more likely than not that the account of the matter given to the Magistrates' Court by P.C. Patterson was deliberately false? Yes.

It followed from these findings that Mrs. Rowlands had made good her case in its entirety.

5. At that point the judge asked the jury to retire while he heard submissions on to damages. Counsel were able to agree an award of £3,000 for personal injury, pain and suffering: £1,000 for the injury to Mrs. Rowlands' wrists and £2,000 for psychiatric harm. There was then a discussion about the measure of damages to be awarded for false imprisonment and malicious prosecution. Mr. Gow submitted that, applying the guidance given by this court in Thompson v Commissioner of Police of the Metropolis [1998] QB 498, in respect of the false imprisonment an award of about £600 for the first hour (after allowing for inflation) would be appropriate with an addition to reflect the fact that Mrs. Rowlands was detained for an hour and a half altogether. In respect of malicious prosecution he submitted that a sum of between £3,000 and £4,000 would be appropriate, again applying the guidelines in Thompson, to reflect the fact that Mrs. Rowlands was a lady of good character and that the charge had been hanging over her head for over six months. The Judge expressed his disagreement with that, however, and Mr. Gow moved swiftly on to the question of aggravated damages.
6. In relation to aggravated damages Mr. Gow submitted that the award could be up to twice the damages awarded for personal injury, pain and suffering, but he put forward no figures and left the matter there.
7. Finally Mr. Gow came to exemplary damages. However, before he had had a chance to make any submissions the judge intervened to indicate that in his view this was not a case in which there should be an award of exemplary damages because there was nothing extraordinary about it. At that point Mr. Gow sat down.
8. Mr. Wells then made his submissions. He confirmed his client's agreement to an award of £3,000 for personal injury, pain and suffering, including psychiatric harm, and put forward a figure of £850 for the false imprisonment, which does not appear to have been controversial. The following exchange then occurred in relation to damages for malicious prosecution:

Mr. Wells: These [referring to the figures suggested in Thompson] go up with inflation. So, rather than go up like Heil v Rankin personal injuries, these just go up with the inflation. The inflation factor, I think and I am afraid I have not got it with me, but from 1997, from memory, is about 1.5 or thereabouts. So it would be increased by about £2,500/£2,700.

The Judge: Well, £2,500 was the figure I have written down.

Mr. Gow: I would not argue with that, Your Honour.

Mr. Wells: Yes and that is what I would say –

The Judge: Sorry?

Mr. Gow: I would not argue that; £2,500.

9. At that stage the matter was left there and Mr. Wells moved on to aggravated damages.
10. An award of aggravated damages proved to be more controversial. Mr. Wells submitted that it would be inappropriate to award aggravated damages in a case where an award of damages had already been made in respect of psychiatric harm because that would result in the claimant's being compensated twice for the same injury.
11. When he came to exemplary damages Mr. Wells indicated that he would have wished to argue that it was inappropriate to make such an award against the Chief Constable, given the fact that his liability was simply vicarious. Before he got any further, however, the judge intervened to say that he was quite confident that this was not a case for exemplary damages and so Mr. Wells addressed no further argument to him on the question.
12. After hearing from Mr. Gow in reply the judge ruled that a separate award of aggravated damages was not appropriate in this case since the agreed award of damages for personal injury, pain and suffering would fully compensate Mrs. Rowlands for the psychiatric harm she had suffered in the form of persistent feelings of anger and injustice at how she had been treated. (As I have said, he had already ruled that it was not a case in which an award of exemplary damages could be justified.) There then followed this exchange between counsel and the judge:

The Judge: Well, gentlemen, if we agree those figures - £2,000 psychiatric; £1,000 for the pain to the wrists; £850 false imprisonment and £2,500 for the malicious prosecution – there is nothing for the jury to decide, is there?

Mr. Gow: No. Well, I obviously do not agree with Your Honour's assessment of aggravated damages.

The Judge: No, obviously not, Mr. Gow.

Mr. Gow: I think that is a matter that we will have to go to a higher court on.

The Judge: Well, I am not granting you leave, but . . .

Mr. Gow: Certainly, obviously we will have to take that with another court, but as I say, there is nothing (inaudible) but I think the jury should be informed of what the damages –

The Judge: Yes, indeed.

13. The jury were then brought back into court and the judge told them that counsel had agreed the amount of damages, gave them the figures and told them that there was nothing further for them to do.
14. Before us Mr. Gow submitted that dealing with damages the judge had gone wrong in a number of respects. First, he had wrongly withdrawn from the jury consideration of an award of damages for malicious prosecution, being under the misapprehension that the sum of £2,500 had been agreed between counsel. It had not, said Mr. Gow. All that had happened was that he had agreed that the starting point of £2,000 suggested in Thompson should be increased to £2,500 to allow for inflation. He (Mr. Gow) had understood that the assessment of damages under this head would be left to the jury with appropriate directions. Second, he submitted that the judge had been wrong in holding that an award of aggravated damages would result in over-compensation. The award of £2,000 in respect of psychiatric harm was to compensate Mrs. Rowlands for the persistent psychiatric effects resulting from her arrest and prosecution, whereas an award of aggravated damages would compensate her for the humiliation and loss of dignity she suffered at the time as a result of being arrested in front of her children and neighbours, handcuffed and taken away in a police car. Finally, he submitted that the judge had been wrong to withdraw from the jury consideration of the claim for exemplary damages because the conduct of the police in this case fell squarely within one of the three categories of cases identified by their Lordships in Rookes v Barnard [1964] AC 1129 in which such awards may be made, namely, arbitrary, oppressive or unconstitutional action by a servant of the government.

The Thompson guidelines

15. It is necessary at this stage to say a little more about the guidance given by this court in Thompson in relation to awards of damages for false imprisonment and malicious prosecution involving the police. Two appeals involving similar cases were heard together. In the first, Thompson v Commissioner of Police for the Metropolis, Miss Thompson had been lawfully arrested in connection with a drink and driving offence. She was taken to a police station and at some point the decision was made to put her in a cell. That provoked a struggle in the course of which, she alleged, she was assaulted. The police said that she had refused to submit to a search, had become violent and had bitten a police officer's finger, causing it to bleed. She was charged with assault occasioning actual bodily harm, but the charge was later reduced to one of assaulting a police officer in the execution if his duty. Seven months later she was acquitted following a trial at which she and the police officers concerned gave evidence.
16. Miss Thompson brought a claim against the Metropolitan Police Commissioner for assault and battery, false imprisonment and malicious prosecution. The jury awarded her damages (including aggravated damages) in the sum of £1,500 and exemplary damages in the sum of £50,000. The Commissioner appealed against the award of exemplary damages and Miss Thompson appealed against the award of compensatory damages.
17. In the second case, Hsu v Commissioner of Police of the Metropolis, police officers had attended Mr. Hsu's home following a complaint from a lodger that he had wrongfully prevented her from collecting some of her belongings. He refused to allow them entry because they were not carrying any document which gave them authority to enter his house. Subsequently three officers tried to force their way into the house and when Mr. Hsu tried to prevent them he was forcibly arrested. In the course of his arrest he was seriously assaulted and racially abused. These events all took place in view of his neighbours, the lodger who had made the complaint and her father. He was taken to the police station and locked in a cell for about an hour and a quarter. When he was released he was left to make his own way home, although he was without shoes. A friend took him home but when he got there he found that his house had been entered and various items of property had been stolen. Mr. Hsu brought proceedings against the Commissioner claiming damages for assault and false imprisonment and also damages for negligence resulting in the loss of the stolen property. The jury rejected the police evidence seeking to justify his arrest and awarded him £20,000 compensatory damages (including aggravated damages) and £200,000 exemplary damages. The Commissioner appealed against the award.
18. The questions with which the court was concerned in Thompson revolved around the circumstances in which an appellate court can interfere with a jury's award of damages and the guidance that judges should give juries in relation to awards of damages in cases of this kind. The first of these questions does not arise in the present case and I therefore propose to say no more about that part of the judgment, save to draw attention to the following passages which are directly relevant to the issues in the present case. Dealing with the aggravated damages Lord Woolf M.R. giving the judgment of the court said at page 512E:

". . . . . there can be a penal element in the award of aggravated damages. However they are primarily to be awarded to compensate the plaintiff for injury to his proper pride and dignity and the consequences of his being humiliated. This injury which is made worse for the plaintiff because it is more difficult to excuse when the malicious motives, spite or arrogance on the part of the police: see Rookes v Barnard [1964] AC 1129 , 1221 et seq., per Lord Devlin)."

19. A little later when dealing with the power to award exemplary damages he said at page 512F:

"This element of profiting from your tort is almost invariably absent from this class of action. In addition, as the defendant is usually a chief officer of police, the personality of the defendant will not usually be significant in determining what the appropriate level of punitive damages should be. While the conduct calling for the award of exemplary damages may differ it is to be hoped that it will be rare indeed for the most senior officers in the force to be in any way implicated.

The fact that the defendant is a chief officer of police also means that here exemplary damages should have a lesser role to play. Even if the use of civil proceedings to punish a defendant can in some circumstances be justified it is more difficult to justify the award where the defendant and the person responsible for meeting any award is not the wrongdoer, but his "employer". While it is possible that a chief constable could bear a responsibility for what has happened, due to his failure to exercise proper control, the instances when this is alleged to have occurred should not be frequent. There is also a greater problem of awarding exemplary as well as aggravated damages in the class of action under consideration because the very circumstances which will justify the award of aggravated damages are probably the same as those which make it possible to award exemplary damages. This accentuates the risk of a double counting."

20. The court then proceeded to set out a number of guidelines to assist judges directing juries in cases of this kind. They include the following:

"(5) In a straightforward case of wrongful arrest and imprisonment the starting point is likely to be about £500 for the first hour during which the plaintiff has been deprived of his or her liberty. After the first hour an additional sum is to be awarded, but that sum should be on a reducing scale so as to keep the damages proportionate with those payable in personal injury cases and because the plaintiff is entitled to have a higher rate of compensation for the initial shock of being arrested. As a guideline we consider, for example, that a plaintiff who has been wrongly kept in custody for twenty four hours should for this alone normally be regarded as entitled to an award of about £3,000. For subsequent days the daily rate will be on a progressively reducing scale. . . . .

(6) In the case of malicious prosecution the figure should start at about £2,000 and for prosecution continuing for as long as two years, the case being taken to the Crown Court, an award of about £10,000 could be appropriate. If a malicious prosecution results in a conviction which is only set aside on an appeal this will justify a larger award to reflect the longer period during which the plaintiff has been in peril and has been caused distress.

. . . . . . . . . . . .

(8) If the case is one in which aggravated damages are claimed and could be appropriately awarded, the nature of aggravated damages should be explained to the jury. Such damages can be awarded where there are aggravating features about the case which would result in the plaintiff not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award. Aggravating features can include humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest or the prosecution which shows that they had behaved in a high handed, insulting, malicious or oppressive manner either in relation to the arrest or imprisonment or in conducting the prosecution.. Aggravating features can also include the way the litigation and trial are conducted. . . . . .

. . . . . . . . . . . .

(10) We consider that where it is appropriate to award aggravated damages the figure is unlikely to be less than a £1,000. We do not think it is possible to indicate a precise arithmetical relationship between basic damages and aggravated damages because the circumstances will vary from case to case. In the ordinary way, however, we would not expect the aggravated damages to be as much as twice the basic damages except perhaps where, on the particular facts, the basic damages are modest.

(11) It should be strongly emphasised to the jury that the total figure for basic and aggravated damages should not exceed what they consider is fair compensation for the injury which the plaintiff has suffered. It should also be explained that if aggravated damages are awarded such damages, though compensatory are not intended as a punishment, will in fact contain a penal element as far as the defendant is concerned.

(12) Finally the jury should be told in a case where exemplary damages are claimed and the Judge considers that there is evidence to support such a claim, that though it is not normally possible to award damages with the object of punishing the defendant, exceptionally this is possible where there has been conduct, including oppressive or arbitrary behaviour, by police officers which deserves the exceptional remedy of exemplary damages. It should be explained to the jury: (a) that if the jury are awarding aggravated damages these damages will have already provided compensation for the injury suffered by the plaintiff as a result of the oppressive and insulting behaviour of the police officer and, inevitably, a measure of punishment from the defendant's point of view; (b) that exemplary damages should be awarded if, but only if, they consider that the compensation awarded by way of basic and aggravated damages is in the circumstances an inadequate punishment for the defendants; . . . . . . (d) that the sum awarded by way of exemplary damages should be sufficient to mark the jury's disapproval of the oppressive or arbitrary behaviour but should be no more than is required for this purpose.

(13) Where exemplary damages are appropriate they are unlikely to be less than £5,000. Otherwise the case is probably not one which justifies an award of exemplary damages at all. In this class of action the conduct must be particularly deserving of condemnation for an award of as much as £25,000 to be justified and the figure of £50,000 should be regarded as the absolute maximum, involving directly officers of at least the rank of superintendent."

21. Finally, commenting on these guidelines Lord Woolf said at page 517E:

"In giving guidance for aggravated damages we have attached importance to the fact that they are intended to be compensatory and not punitive although the same circumstances may justify punishment.

In the case of exemplary damages we have taken into account the fact that the action is normally brought against the chief officer of police and the damages are paid out of police funds for what is usually a vicarious liability for the acts of his officers in relation to which he is a joint tortfeasor: see now section 88 of the Police Act 1996. In these circumstances it appears to us wholly inappropriate to take into account the means of the individual officers except where the action is brought against the individual tortfeasor. This would raise a complication in the event of the chief officer seeking an indemnity or contribution as to his liability from a member of his force. It is our view if this situation does arise it should be resolved by the court exercising its power under section 2(1) or (2) of the Civil Liability (Contribution) Act 1978 to order that the exemplary damages should not be reimbursed in full or at all if they are disproportionate to the officer's means."

22. Applying these guidelines the court awarded Miss Thompson £10,000 basic damages for false imprisonment, assault and malicious prosecution, a like amount by way of aggravated damages and £25,000 exemplary damages making a total of £45,000. In the case of Mr. Hsu the court upheld the basic award of £20,000, but reduced the award of exemplary damages to £15,000 leaving a total award of £35,000.

The appeal

23. In the light of this authority I turn to consider the submissions made by Mr. Gow in support of the present appeal. In considering the awards of damages in this case I adopt Lord Woolf's distinction between "basic" and aggravated damages which seems to me helpful in directing attention to the particular nature of the harm in respect of which the award is made.

(a) Damages for malicious prosecution

24. I can well understand how the judge came to think that the parties had agreed an award of £2,500 for malicious prosecution. The exchanges in relation to damages generally give the impression that all concerned were proceeding on the assumption that the judge himself should, if necessary, determine the size of the award. Mr. Gow had put forward a figure of £3,000 to £4,000, but had not specifically drawn the judge's attention to the passages in Thompson that might support an award of that amount. Nor had he made it clear in his submissions that if agreement could not be reached it was for the jury to make an award. When Mr. Wells came to that part of his submissions he referred to the need to increase the Thompson guidelines for inflation and suggested that the starting figure of £2,000 should be increased to £2,500 or thereabouts. The judge said he had written down £2,500 and Mr. Gow immediately indicated his agreement. Mr. Gow told us that he was only indicating his agreement with that as a starting figure adjusted for inflation, but the judge obviously understood him to mean that he agreed that it was an appropriate award because, when he came to summarise the position a little later, that is how he described it. Moreover, although at that point Mr. Gow said that he was not happy with the view the judge had taken of the claim for aggravated damages, he said nothing to indicate that he did not agree to an award of £2,500 as basic damages for malicious prosecution and that the matter should be left to the jury. On the contrary, his answer to the judge's question "There is nothing for the jury to decide, is there?" was not "Yes, there is: the award of damages for malicious prosecution.", but "No, but I disagree with Your Honour's ruling on aggravated damages."
25. In the light of these exchanges I am driven to the conclusion that Mr. Gow did indicate on behalf of his client his agreement to an award of basic damages for malicious prosecution in the sum of £2,500, whether he intended to do so or not. It is possible that the jury might have awarded a higher sum, but in the light of the Thompson guidelines it could not have been very much higher and certainly not more than the £3,000 to £4,000 for which Mr. Gow was contending. In the end, for reasons which will become apparent, I do not think that it should make any difference to the overall award.

(b) Aggravated damages

26. Mr. Wells was quite right, in my view, to identify the danger of double recovery in cases where an award of aggravated damages is made in favour of a claimant who is also claiming damages for psychiatric harm. However, I am unable to accept that the mere fact that the basic award includes an element to compensate for psychiatric harm necessarily precludes an award of aggravated damages. It is now generally recognised that an award of aggravated damages is essentially compensatory in nature, notwithstanding the fact that it may have a punitive effect by increasing the overall amount the defendant is ordered to pay. That was explicitly acknowledged by Lord Woolf M.R. in Thompson as one can see from the passages cited earlier. Whether damages awarded to compensate the claimant for distress, humiliation and injury to feelings are treated as part of the basic damages (as Thomas L.J. suggested in Richardson v Howie [2004] EWCA Civ 1127, (unreported, 13^th August 2004)) or are separately identified by the name of aggravated damages, the important factor to bear in mind is that they are primarily intended to be compensatory, not punitive. It follows that any injury for which compensation has been given as part of the award of basic damages should not be the subject of further compensation in the form of an award of aggravated damages. However, the distinction between basic and aggravated damages will continue to have a part to play as long as the right to recover for intangible consequences such as humiliation, injury to pride and dignity as well as for the hurt caused by the spiteful, malicious, insulting or arrogant conduct of the defendant attaches to some causes of action and not others.
27. In the present case a claim was made for personal injuries as described in the claimant's medical reports, one of which was provided by a clinical psychologist, Mr. Robin Logie, who had examined Mrs. Rowlands in November 2004. He expressed the opinion that she was suffering from Post-traumatic Stress Disorder ("PTSD") resulting from the circumstances of her arrest. He described symptoms of insomnia, distressing thoughts, feelings of emotional detachment, irritability, and hyper-vigilance. He thought that without the help of psychological therapy she might continue to suffer from PTSD for a further year or so and might be significantly distressed for even longer. The defendant's expert, a consultant psychiatrist, Dr. El-Assra, who examined Mrs. Rowlands in November 2005 took a rather different view of her condition. He considered that following her arrest she had suffered from an adjustment disorder which lasted for about a year. He did not think that her current symptoms reached the level of clinical significance but were understandable in the context of the litigation. He did not accept that she was, or had been, suffering from PTSD.
28. The difference between the medical experts was not resolved at the trial because the parties compromised that head of claim. However, it is clear from their reports that they were both seeking to identify and evaluate any persistent psychiatric harm resulting from Mrs. Rowlands' arrest and subsequent prosecution. To the extent that she was able to establish that the events in question had adversely affected her mental health she was entitled to compensation for that harm in the same way as for the physical injury to her wrists. Harm of that kind, however, is not to be equated with the humiliation and injury to pride and dignity that may follow from the particular circumstances of the arrest or with the feelings of anger and resentment induced by the insulting or arrogant conduct of those by whom it was made and by their subsequent attempts to obtain an unjustified conviction through false evidence. These are emotions of a kind which reflect an immediate response to the unfolding situation. They do not ordinarily result in psychiatric harm, but are no less real for that reason.
29. In the present case the circumstances surrounding Mrs. Rowlands' arrest and prosecution were of a kind that were liable to induce feelings of humiliation and resentment which can only have been exacerbated by the willingness of the police to give false evidence in support of an unjustified prosecution. In my view, therefore, the judge was wrong to withdraw from the jury consideration of the claim for aggravated damages, although it was necessary to warn them of the dangers of compensating Mrs. Rowlands twice in respect of the same harm.
30. In view of the amounts involved in this case it was accepted on both sides that if we were of the view that the judge had erred in this respect we should determine the appropriate award of aggravated damages ourselves rather than send the matter back to the County Court. Mr. Gow submitted that the guidelines in Thompson indicated that an award of aggravated damages could be as much as twice the award of basic damages, but it is clear from Lord Woolf's comment at page 519H that an award of that size could be justified only in the most exceptional circumstances.
31. In the present case the award of basic damages amounts in all to £6,350, which may be a little on the low side for the reasons indicated earlier. In Thompson the court awarded £10,000 by way of basic damages and the same sum as aggravated damages, but the circumstances surrounding Miss Thompson's detention and prosecution were more serious than those of the present case. Moreover, as I indicated earlier, it is necessary to guard against making an award that compensates Mrs. Rowlands twice in respect of her reaction to her arrest and subsequent prosecution. In my view an appropriate award taking into account the Thompson guidelines and the particular facts of this case would be £6,000.

(c) Exemplary damages

32. Three questions arise for consideration under this head: (i) whether the judge was entitled to rule (by implication) that the evidence given at the trial was not capable of supporting the findings of fact necessary to enable the jury to make an award of exemplary damages; (ii) whether, as Mr. Wells submitted, it would be wrong in law to make an award of exemplary damages against the Chief Constable who, although vicariously liable for the actions of his officers, was not personally at fault in any respect; (iii) if it is permissible to make an award of exemplary damages in this case, whether it would be right to do so, having regard to the amounts awarded in respect of basic and aggravated damages, and if so, in what sum.

(i) "Oppressive, arbitrary and unconstitutional action"

33. It must be remembered that the question for the judge was whether there was evidence before the jury which, if they were properly directed, was capable of supporting a finding that P.C. Patterson's behaviour amounted to oppressive, arbitrary and unconstitutional action. In my view there clearly was. In Holden v Chief Constable of Lancashire [1987] 1 Q.B. 380 the plaintiff, who had a criminal record, was arrested by a constable and detained for 20 minutes. The judge withdrew from the jury consideration of an award of exemplary damages on the grounds that there had been no suggestion of oppressive conduct on the part of the police over and above the arrest itself. This court allowed the plaintiff's appeal on the grounds that wrongful arrest by a police officer fell within the scope of Lord Devlin's first category of cases for which exemplary damages could be awarded, regardless of whether it had been accompanied by conduct of an overtly oppressive nature.
34. In the present case there was evidence (which the jury accepted) that P.C. Patterson had physically restrained Mrs Rowlands without having had any legitimate reason for doing so, had handcuffed her and placed her in a police car; that he had deliberately caused her unnecessary pain by tugging on the handcuffs while she was in the car; that he had procured her continued detention by giving false information to the custody sergeant to ensure that she was charged with an offence which he knew she had not committed; and that he had given false evidence at her trial in an attempt to secure her conviction, or which he must at least have known was liable to have that result. It was for the jury, of course, to decide whether this catalogue of misconduct was serious enough to justify an award of exemplary damages, but it was certainly capable of doing so. Whether the judge considered the case to be exceptional was beside the point.

(ii) Vicarious liability

35. Until the passing of the Police Act 1964 a claim in respect of a tort alleged to have been committed by a police officer could be made only against the officer personally. However, section 48 of the Act effected a change in the law by making chief constables liable in respect of torts committed by their officers. That section has since been re-enacted as section 88 of the Police Act 1996 without any significant change in wording. It provides as follows:

"88.—(1) The chief officer of police for a police area shall be liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor."

36. Since the Police Act 1964 Act came into force, therefore, chief constables have been vicariously liable for the torts of their officers committed in performance of their functions and it appears to have been universally assumed that, where an officer's conduct justified an award of exemplary damages, judgment including an award of exemplary damages could be given against the chief constable as well as against the officer concerned. Since there is no question of the chief constable's being unable to satisfy a judgment against him, claimants often do not trouble to join in the action the police officer who is said to have committed the tort; they simply bring proceedings against the chief constable, as Mrs. Rowlands did in this case.
37. However, the punitive nature of an award of exemplary damages raises questions that do not arise in relation to awards of compensatory damages, however large. One concerns the size of the award where two or more defendants, who may not all be equally culpable or of similar means, are jointly liable for the tort. Another concerns the position of a party who, although liable in law for the tort, is not personally at fault at all. In Rookes v Barnard itself Lord Devlin pointed out that care must be taken to avoid excessive punishment and said that everything which aggravates or mitigates is relevant, including the means of the defendant.
38. In Broome v Cassell & Co Ltd [1972] AC 1027, 1063 Lord Hailsham L.C. expressed the view that awards of exemplary damages in respect of joint torts should reflect the lowest figure for which any individual defendant could be held liable. Lord Reid (who considered the whole doctrine of exemplary damages anomalous and indefensible) said at page 1090D-F:

". . . . . the jury should be directed that, when they come to consider what if any addition is to be made to the compensatory damages by way of punitive damages, they must consider each defendant separately. If any one of the defendants does not deserve punishment or if the compensatory damages are in themselves sufficient punishment for any one of the defendants, then they must not make any addition to the compensatory damages. If each of the defendants deserves more punishment than is involved in payment of the compensatory damages then they must determine which deserves the least punishment and only add to the compensatory damages such additional sum as that defendant ought to pay by way of punishment."

39. These principles give rise to particular difficulties in the context of claims against the police for false imprisonment and malicious prosecution. If the citizen is liable to encounter arbitrary, oppressive or unconstitutional action on the part of servants of the government of a kind which involves interference with his personal liberty, it is more likely in the nature of things that he will do so at the hands of the police than of other public servants. However, it is also likely that those who have committed the wrongful acts will have been constables or officers of a relatively junior rank. Since their liability for compensatory damages is unlimited and their financial means are likely to be relatively modest, it will frequently be inappropriate for juries to make an award of exemplary damages against them. Moreover, if the principles enunciated by Lord Hailsham and Lord Reid are applied rigorously, there are likely to be few cases in which it will be appropriate for the jury to make an award of exemplary damages against the police if the chief constable has been joined as a defendant together with the officer who is said to have committed the act complained because any such award ought to take account of the latter's means.
40. None of this might matter very much if the difficulties could be overcome, as Lord Hailsham suggested in Broome v Cassell, by choosing one's defendant carefully – in this case by bringing an action against the chief constable alone – or if it were thought that the doctrine of exemplary damages had little or no part to play in this context. However, if it is still thought to have a useful role to play in the context of police abuse of power, it is necessary for juries to be able to make an award of exemplary damages against the chief constable when a claim is made against him alone under section 88 of the Police Act 1996.
41. These questions were touched on in Thompson, although it cannot be said that they lay at the heart of the case or were the subject of detailed argument. The two appeals before the court on that occasion were directed to issues relating to damages and it was unnecessary for the court to consider questions of principle or policy bearing on the award of exemplary damages against chief constables. It is understandable, therefore, that the judgment should have proceeded on the assumption that, if the conduct of the officers in question fell within Lord Devlin's criteria, the jury could properly make an award of exemplary damages against the Commissioner. Indeed, it does not appear that the contrary was ever suggested. However, the court was clearly alive to the sort of questions mentioned a moment ago. Thus, in the passage in the judgment at page 512F cited earlier one finds Lord Woolf M.R. saying:

". . . . . as the defendant is usually a chief officer of police, the personality of the defendant will not usually be significant in determining what the appropriate level of punitive damages should be. . . . .

The fact that the defendant is a chief officer of police also means that here exemplary damages should have a lesser role to play. Even if the use of civil proceedings to punish a defendant can in some circumstances be justified it is more difficult to justify the award where the defendant and the person responsible for meeting any award is not the wrongdoer, but his "employer." . . . . "

And later at page 517F:

"In the case of exemplary damages we have taken into account the fact that the action is normally brought against the chief officer of police and the damages are paid out of police funds for what is usually a vicarious liability for the acts of his officers in relation to which he is a joint tortfeasor: see now section 88 of the Police Act 1996. In these circumstances it appears to us wholly inappropriate to take into account the means of the individual officers except where the action is brought against the individual tortfeasor."

42. Although the observations in these passages were directed to identifying the appropriate level of awards in such cases, they reflect the view that an award of exemplary damages against the chief constable is simply a means of expressing the jury's "vigorous disapproval" of the conduct of the police force as an institution, as well as of the individual police officers, on the occasion in question. It is for this reason, as I understand it, that the court considered that an award of exemplary damages can be made in such cases, despite the fact that the defendant and the person responsible for meeting any award is not himself the wrongdoer; and it is for the same reason that the court considered it to be inappropriate to take into account the means of the individual officers, so that the personality of the defendant will not usually be significant in determining what the appropriate level of exemplary damages should be.
43. The decision in Thompson was considered by this court in Manley v Commissioner of Police of the Metropolis [2006] EWCA Civ 879 (unreported, 28^th June 2006), another case involving an appeal against a jury's award of damages for assault, false imprisonment and malicious prosecution. In that case the jury had made no award of aggravated or exemplary damages and the appellant argued that that was a decision to which no reasonable jury could come.
44. The police wrongly believed that the appellant was the driver of a car that had been driven at very high speed through a residential area in the early hours of the morning. Following the appellant's arrest there was a fight in the course of which the police struck the appellant several times with a baton and sprayed CS gas in his face. He was charged with various offences, despite the fact that the police knew that all the charges were unsustainable, and was held in custody until his trial at which he was acquitted. Having considered the judgment in Thompson, Waller L.J., with whom Moses and Wilson LJJ. agreed, held that the jury should have awarded not less than £10,000 by way of aggravated damages, but said that it was not a case for exemplary damages.
45. I am not quite sure why the court reached the conclusion that it was not a case for exemplary damages, unless it was because it considered that the award of basic and aggravated damages was sufficient to mark the court's disapproval of the police officers' behaviour. The passages from Thompson to which Waller L.J. referred (which included those cited earlier in this judgment) do not suggest that an award of exemplary damages would be inappropriate in response to behaviour of that kind, although they clearly do warn of the need to avoid double counting when awarding both aggravated and exemplary damages.
46. Despite the line of cases in which juries have awarded exemplary damages against chief constables in respect of the actions of their officers, Mr. Wells submitted that it should now be recognised that it is wrong in law for them to do so. His submission was based on the speech of Lord Scott of Foscote in Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29; [2002] 2 AC 122, which contains a powerful argument in favour of that conclusion, the main plank of which is that it is contrary to principle to punish a person whose behaviour is not in any way blameworthy. However, the issue before the House in Kuddus was whether exemplary damages could be awarded for misfeasance in public office, despite the fact that prior to the decision in Rookes v Barnard it was not a cause of action that had been accepted as justifying such an award. Their Lordships did not hear argument on the question whether an award of exemplary damages could properly be made against a chief constable whose liability was only vicarious and none of them apart from Lord Scott expressed a view on the question.
47. The arguments generally for and against the retention of a power to award exemplary damages in limited classes of cases, as well as the arguments for and against awards being made persons whose liability is solely vicarious, are canvassed in the Report of the Law Commission on Aggravated, Exemplary and Restitutionary Damages (1997) (Law. Com. No. 247): see in particular paragraphs 1.210-229 in which vicarious liability is discussed. There undoubtedly are strong arguments of principle in favour of limiting the application of an avowedly punitive award to those who are personally at fault, who, in all but a tiny minority of cases brought against the police, could confidently be expected not to include the chief constable. However, since the power to award exemplary damages rests on policy rather than principle, it seems to me that the question whether awards can be made against persons whose liability is vicarious only must also be answered by resort to considerations of policy rather than strict principle. While the common law continues to recognise a power to award exemplary damages in respect of wrongdoing by servants of the government of a kind that has a direct effect on civil liberties, which for my own part I think it should, I think that it is desirable as a matter of policy that the courts should be able to make punitive awards against those who are vicariously liable for the conduct of their subordinates without being constrained by the financial means of those who committed the wrongful acts in question. Only by this means can awards of an adequate amount be made against those who bear public responsibility for the conduct of the officers concerned.
48. It was assumed in Kuddus, as in all previous cases, that an award of exemplary damages could be made against the chief constable, (indeed, the chief constable did not seek to argue to the contrary), but this continuous assumption does not in my view amount to an authoritative decision on the question. We are, therefore, free to reach our own decision. As I have indicated, I would be in favour of holding that a substantial award of exemplary damages can be made against a chief officer of police under section 88 of the Police Act 1996 in accordance with the principles set out in Thompson, but even if I were of a different view, I think that in a matter of this kind this court should be slow to disturb an understanding of the law that has existed for over forty years and on the basis of which many decisions at the highest level have proceeded. For these reasons I would reject Mr. Wells' submission.
49. It follows that that the judge was wrong, in my view, to withdraw from the jury consideration of an award of exemplary damages in this case.

(iii) The award

50. Again, the parties agreed that if we were to reach that conclusion we should ourselves determine what, if any, award should be made under this head. In so doing it is necessary to bear in mind both that an award of exemplary damages is avowedly punitive in nature and that any award of compensatory damages (basic and aggravated) has a punitive element insofar as it requires the defendant to pay for his wrongful act. It is for that reason that the question of awarding exemplary damages must be considered in the light of the award of compensatory damages in order to ensure that the total award is not excessive.
51. An award of aggravated damages in the sum of £6,000 would raise the total amount awarded by way of compensatory damages to £12,350. I consider that the conduct of the police in this case was worthy of significant punishment, not just because the arrest of Mrs. Rowlands was unjustified but also because it was carried out in an arrogant and abusive manner and was followed by a persistent attempt to justify it through the giving of false evidence designed to procure her conviction. In my view a total award of £12,350 does not provide adequate punishment in this case and therefore it is appropriate to make an award of exemplary damages. In Thompson Lord Woolf suggested that an award of exemplary damages should rarely be less than £5,000 which, adjusted for inflation, represents a little over £6,000 in today's terms. In that case the court awarded £25,000 to Miss Thompson and £15,000 to Mr. Hsu, but the behaviour of the police in each of those cases was significantly more serious than that of P.C. Patterson in this case, in particular because each of the claimants was subjected to a greater degree of violence than was inflicted on Mrs. Rowlands. In my view an appropriate award in this case would be £7,500.
52. I would therefore allow the appeal and enter judgment for Mrs. Rowlands in the sum of £19,850.

Lord Justice Richards:

53. I agree.

Lord Justice Ward:

54. I also agree.