England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COUNTY COURT
(HIS HONOUR JUDGE McINTYRE)

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd April 2009

Lord Justice Hughes:

1. Late in the evening of Saturday 22 January 2005 the three claimants, who are brothers, were arrested on suspicion of being concerned in a hit and run incident in which a van had been driven straight across red traffic lights at speed and knocked down and killed a pedestrian. It transpired later that the claimants were not concerned in the incident at all.
2. They brought action against the police for wrongful arrest. The action failed because the judge held that the policeman had reasonable grounds to suspect that they were responsible, although as it later turned out they were not. They now appeal and contend that the judge was wrong so to hold.
3. The collision and death had occurred at just after 7.30, earlier the same evening. A witness to it had reported to the police that three young men, appearing to be in their mid teens or thereabouts and white, had run off from the van. The van was found where it had been abandoned just after the offence. It was a white Transit van. A check of its number revealed that it had no registered keeper, but quite rapidly the computer revealed that it had been stopped only 17 days earlier and on that occasion its driver had been either James Buckley or his partner, Joyce. The police established that James Buckley lived at an address fairly nearby the scene of the incident in Heywood Gardens, Maidenhead.
4. One of the police officers who heard the radio traffic concerning the incident rang in to the control room to say that there were several youths in the Buckley family who would be at the right age to fit the description which had been reported by the witness. That officer had in mind the family of the claimants. The claimants are three of five brothers. Their elder brothers, L and J, were known to the police as regular car crime offenders. The claimants also lived in Maidenhead at Boyn Valley Road together with their mother and her partner. L was by the night in question in detention in a young offenders' institution. Some time after the police officer had told the control room of the possible relevance of "several youths from the Buckley family", another officer identified to the control room the address at which this Buckley family lived. Police officers were accordingly dispatched to both addresses, namely firstly that of James Buckley in Hayward Gardens and secondly that of the claimants' family in Boyn Valley Road. The controllers of the operation had it in mind that it was necessary a) to proceed rapidly and b) to deploy separate officers, because it was at least possible that if suspects were located there would be a need for scientific examination of their clothes to see if any scientific connection with the incident could be established, for example via fragments of glass, the van windscreen having been shattered on impact. It followed that cross-contamination had to be avoided and separate officers sent to the two addresses.
5. The officer who went to the claimant's home was Constable Scully. When he arrived at the house he found all three of the claimants' brothers as well as their mother and her partner. The claimants were at the time all in their teens. They were aged respectively 15, 14 and just under 13. Mr Scully told them all why he was there and he asked where the claimants had been that evening. He was told that one of them had been across the road with neighbours and that the others had been at home. Mrs Buckley also told the officer that some young men called Perry had a white Transit van and that they had tried to blame her son L for some offence or misbehaviour previously occurring and connected with that van. She suggested accordingly that it would be they who would be likely to have been responsible for what the officer was enquiring into.
6. The claimants were all arrested and they were held in police custody until the afternoon or evening of the following day. By then other enquiries had disclosed another suspect who in the end was proved to have been responsible. None of the claimants had in fact had anything to do with the offence of causing death by dangerous driving. The question for the judge however was not whether they were guilty, nor whether there was a prima facie case of guilt against them. It was the quite separate question of whether there existed lawful grounds for their arrest. As Woolf LJ pointed out in Castorina v Chief Constable of Surrey [10 June 1998] LG Rev Rep 241, it is a possibility inherent in the need for police investigations into serious offences to be diligent that it may sometimes happen that a person is arrested on reasonable grounds but it turns out that he was not responsible. In the present case there could be no doubt that an arrestable offence had been committed, nor was it disputed that if the officer had reasonable grounds for suspecting the claimants his decision to arrest them was a reasonable one. In other words the case focussed upon a single question which was whether the policeman had reasonable grounds for suspecting that the claimants were implicated in the offence; see Section 24(6) of the Police and Criminal Evidence Act 1984. Suspicion is a state of mind well short of belief and even further short of a belief in guilt or that guilt can be proved.
7. The primary facts were scarcely in dispute, and the judge's finding of primary fact with one exception are not now queried. The judge found that the arresting police constable had in his mind the following factors which he, the judge, concluded constituted reasonable grounds to suspect the claimants of being concerned in the offence: 1) the description of three white youths leaving the scene fitted the claimants as to age, origin and number; 2) no one fitting that description had been seen either to enter or leave the other address which was being watched, where James Buckley lived; 3) the geography was such that the three youths seen leaving the incident could readily have gone to the appellant's address, which was a few miles away and in the general direction in which the report suggested the three had initially been heading; 4) there was a plain and known connection between the van involved in the offence and somebody called Buckley, namely James Buckley; 5) there was or might be a family connection between James Buckley and the claimants; 6) at least one of the claimants' brothers had been concerned in a good deal of car crime; and 7) Mrs Buckley had indicated that she knew of a white Transit van which had been used irregularly and could thus be the van involved in the offence. As to those seven factors there is scope for some uncertainty about number 2). It was certainly the fact that no one fitting the description of those reported to be involved had been seen at the address of James Buckley, but there is room for doubt that Constable Scully knew this. It is of course only what was in Constable Scully's own mind which is relevant; see O'Hara v Chief Constable of the RUC [1997] AC 286. Accordingly it seems to me best to approach the case as it would stand without factor 2).
8. For the claimants Mr Metzer submits that the remaining factors could not on the particular facts of this case constitute reasonable grounds for suspicion. In support of that general approach he makes a number of specific submissions. First, he submits that the judge failed properly to honour and follow the decision both of the first instance judge, McCombe J, and of this court in Raissi v Commissioner of Police of the Metropolis [2007] EWHC 2842 (QB) at first instance, and [2008] EWCA Civ 1237 in this court. That criticism, as it seems to me, is not made out. Raissi was a case in which there was in relation to one of the two arrested persons no basis for suspicion whatever except that he was the brother of a major suspect and on close terms with him and the brother would have had access to his home. It is not a difficult proposition that that alone is incapable of constituting reasonable grounds for suspicion of involvement in (in that case) very serious terrorist activity. That however is not this case. In this case the relationship with a brother whose habit was car crime and the suspected relationship with the man who was known to have used the van fell to be considered in conjunction with the other factors listed by the judge. It did not stand alone as it did in Raissi. Indeed, that relationship may well constitute a legitimate contribution to reasonable suspicion in a case where it does not stand alone is well illustrated by the case of the other person arrested in Raissi, who was the major suspect's wife.
9. Secondly, Mr Metzer has drawn our attention to O'Hara. At paragraph 4 of his written submissions he suggests that it not sufficient for an arresting officer simply to rely upon what other possibly more senior officers had told him. That is too general a proposition to receive support from O'Hara. O'Hara certainly establishes that it is what is in the mind of the arresting officer which matters. It follows that an arresting officer cannot say that reasonable grounds for suspicion are afforded to him merely because some senior officer tells him to go and arrest X or even that the senior officer suspects X unless he also tells him why. However, that again is not this case. There is not the slightest doubt, and O'Hara makes it crystal clear, that an arresting officer may rely on what he had been told by others who may be civilian informants, reliable or unreliable, or other officers, providing that the information thus assembled provides reasonable grounds for suspicion. Indeed if it were otherwise cooperation between officers and the management of any inquiry of any size would be impossible. The same point is to be found in a number of other cases, including in the judgment of Lawton LJ in Castorina at page 23G.
10. Next Mr Metzer contends that since Constable Scully did not investigate the assertion that the appellants had been elsewhere at the time, that is to say that they had alibis, his suspicion could not be reasonable. It is no doubt true that it would not have been difficult to cross the road to ask the occupants of the house where one of the claimants was said to have been. However, to criticise the officer for not investigating a possible alibi is to confuse the progress of an inquiry and the business of the proof of guilt with the existence of a reasonable suspicion at a stage which will necessarily be the outset of the inquiry. It has been said time and again in this court and indeed in the House of Lords that the necessity to demonstrate reasonable grounds for suspicion does not import any obligation upon the police constable to investigate possible defences. Of course if a suspect immediately produces a verified alibi that may well dispel the suspicion which reasonably existed or the reasonable grounds for it which previously existed. That, however, is a different proposition. It does not apply in the present case.
11. Mr Metzer accepts that as a general proposition. He contends, however, that in this case it is different because Constable Scully gave evidence of two matters. First, he said that he had been sent to the claimants' home with instructions which included seeing whether any Buckley boys found there had a convincing alibi. Second, Constable Scully gave evidence that he had not made up his mind to arrest the boys until Mrs Buckley spoke of the family knowledge of a white Transit van. It seems to me that neither of those pieces of evidence detracts from the existence of reasonable grounds for suspicion of the claimants if otherwise they existed. That the constable was sent with instructions to see whether there was a convincing alibi is to say no more than that any suspicion of involvement might promptly turn out to be dispelled and an open mind was being kept on the question of whether to arrest or not.
12. The second piece of evidence was about the decision whether to arrest rather than about whether Constable Scully suspected the claimants. The propriety of the decision to arrest and its reasonableness has at all stages, as I have already said, rightly been conceded.
13. Next Mr Metzer focuses upon factor number 5), that there was or might be a family connection between James Buckley, who was known to have used this van, and the claimants. The evidence of Constable Scully was that he had been informed "that there were connections with the van and the address of the claimants and the family with the name of Buckley". Elsewhere he put it in much the same way. He said that the van "had been linked to the name Buckley at the address I was attending". That in a sense aligns two elements, firstly that the van was connected to the name Buckley, which it plainly was, and secondly that there was or was believed to be a link between James Buckley and the family whose house he was visiting. It seems to me that Constable Scully's evidence demonstrated that he had been provided by those who sent him with the product of the two pieces of information which had separately been sent into the control room by two different police officers, namely, first, that there were several youths in "the Buckley family" who would be of an age to fit the description given by a witness, and secondly that the address of those youths was the one to which Constable Scully was being sent. That, as it seems to me, justified the finding of the judge that Constable Scully was in a state of mind in which he suspected on reasonable grounds that there was or might be a family connection between Mr James Buckley and the claimants. Even, however, if that is not so, the facts of the common name, together with the fact that the Buckleys, with whom he was dealing had unfortunately a family history of car crime, would independently as it seems to me justify the judge's conclusion at factor 5). That, as it seems to me, did contribute to the existence of reasonable grounds for suspicion overall that the claimants might be involved. It was not the name alone but a combination of the name and their family history.
14. Mr Metzer derives a further argument from Constable Scully's evidence that what made up his mind to arrest the claimants and not to go any further with enquiries about possible alibis was Mrs Buckley's reference to the white Transit van. Says Mr Metzer, if that last factor, factor 7), added nothing by way of reasonable grounds for suspicion, it must follow that the constable had on his own evidence no reasonable grounds for suspicion without it. It does not seem to me that the constable was saying that he did not suspect these claimants of being involved until the mother made the comment that she did. On the contrary, it is reasonably clear that he did suspect them on the basis of factors 1) and 3) to 6). Whether he himself thought that he had reasonable grounds for suspicion is of course not the question. The questions in a case of this kind are: a) did the arresting officer in fact suspect the person arrested, and b) had he objectively reasonable grounds for doing so? But however that may be, it is absolutely clear that the mother's remark did add further contributory grounds for suspecting these claimants. Of course it was a remark, as Mr Metzer submits, which in its terms was exculpatory rather than inculpatory. It pointed the finger at the other family, not at her own sons. What it revealed was a family knowledge of a white Transit van used apparently in crime and at best irregularly; something, say, which is designed by the speaker to exculpate will all too often raise suspicions. This is a good example.
15. Lastly, Mr Metzer points to the equivocal nature of the information available to Constable Scully. The descriptions, he says, were very general. So indeed they were, but they fitted the claimants. None of the claimants was known personally to Constable Scully. Nor they were, although he did have some knowledge of their brother, L, and of the other family to whom Mrs Buckley had referred; and moreover he knew that there was a connection between L and that other family.
16. The threshold for establishing reasonable grounds for submission is, as the cases make clear and as is necessary, a low one. Importantly, the correct approach to judgment upon the lawfulness of arrest is not to separate out each of the six elements of the constable's state of mind and ask individually of them whether that creates reasonable grounds for suspicion, it is to look at them cumulatively, as of course the arresting officer has to at the time. It seems to me that there is no legitimate basis upon which the judge's conclusions can be faulted. There were, as it seems to me, sufficient, reasonable grounds for suspecting that these claimants had been involved. As Mr Metzer rightly told us from the outset, there was never any question but that if that was so, the decision to arrest was a reasonable one and it follows from that that the arrest was a lawful one.
17. The judge went on to express his regret that the claimants, at a relatively tender age as well, should have had the experience that they did. He was concerned that the police force had taken some time to acknowledge to the claimants that their innocence was accepted. For my part, I agree that it must have come hard to the appellants' mother if genuine efforts that she had been making to keep her younger children away from the criminal habits of their older brothers did not that night avoid their arrest for something which it turned out they had not done. If that is what has happened, then she ought to have the sympathy of all of us. That is, however, quite a different thing from saying that the police were acting unlawfully, and for my part I am satisfied that they were not.

Lord Justice Moore-Bick:

18. Despite some initial misgivings, I agree that the appeal should be dismissed. I was for a time concerned that the existence of a connection of some kind between Mr James Buckley, who lived at 28 Hayward Gardens, and the Buckley family, who lived 108 Boyne Valley Road, was essential for there to be reasonable grounds for suspecting the claimants of having committed the offence and that Constable Scully had no reasonable grounds for believing that such a connection existed. However, there was the coincidence of names and, more importantly, the evidence that DC Clarke had informed the other officers involved in the operation that "the young Buckleys" lived at 108 Boyne Valley Road. I think it is clear that that information was relayed in some form or another to PC Scully before he entered the house. On reflection I think that, in the context of the other information available to him, that could reasonably have been understood by Constable Scully as containing an implied assertion that a connection of some kind existed between them. In those circumstances I think that Constable Scully was entitled to form the view that such a connection existed and, if it did, that it provided another piece of evidence linking the claimants, albeit indirectly, to the white van and thereby to the offence. That information turned out to be wrong, but that does not matter, since it provided grounds on which, together with other information in his possession, it was reasonable for Constable Scully to suspect the claimants of involvement in the offence.
19. For these reasons and for the reasons given by my Lord Hughes LJ I am satisfied that the judge's decision was correct and that the appeal should therefore be dismissed.

Lord Justice Pill :

20. I also agree. What took the police officers to the house where the arrest took place was the name of the residents, Buckley. It is the same name as that of the man and woman linked with the Transit van involved in the fatal collision. At the moment of arrest, however, Police Constable Scully had a number of factors in mind. Hughes LJ has described and explained them, the common name being only one of them. I would not for myself be prepared to hold, on the evidence, including that of Constable Scully, that the belief in "familial connection" was based on any more than that the name was the same. The officer would of course have known that it was not the most common of names and that the two Buckley families did not live far from each other.
21. Taking that factor with the several factors to which Hughes LJ has referred, the factors were cumulatively sufficient to establish that the officer's grounds for suspecting that the claimants had committed the offence for which they were arrested were reasonable. I too agree that the arrest was lawful and that the appeal must be dismissed.

Order: Appeal dismissed