England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Brighton County Court
His Honour Judge Simpkiss
8LCC04041

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/03/2012

Lord Justice Aikens :

1. The principal question raised on this appeal from the order of HHJ Simpkiss dated 27 January 2011 is: was the judge correct to conclude that Police Constable Baker, an experienced officer in the Sussex police, was entitled to arrest without a warrant the appellant, Mr Tomas Alanov ("Mr Alanov") in his flat in Upperton Gardens, Eastbourne on 20 June 2005? The answer to that question depends on whether the judge was correct to conclude that when Mr Alanov was arrested by PC Baker, the constable had "reasonable grounds" for suspecting that Mr Alanov was guilty of the offence of a particularly violent rape which had been committed the previous evening in the vicinity of the block of flats where Mr Alanov lived. We heard oral argument from Mr Stephen Simblet on behalf of Mr Alanov and Miss Sophie Mortimer on behalf of the Respondent on Wednesday 15 February 2012. At the end of the argument we announced that the appeal would be allowed, for reasons to be given in writing. We made various orders consequential on that decision, which I will deal with at the end of this judgment.
2. These are my reasons for allowing the appeal.

The claim

3. After Mr Alanov's arrest on 20 June, he was taken first to Eastbourne Police Station and then to Brighton Police station. There he was detained for a period of over 6 hours. Mr Alanov was subject to the procedures commonly used when a suspect is held on suspicion of an offence of rape. He was put in a cell, had his clothes taken from him and he had to provide intimate samples for forensic analysis.
4. Mr Alanov was then released on bail. No charges were ever brought against him. That is because the forensic tests demonstrated conclusively that there was nothing to connect him with the offence. Before the trial judge it was therefore common ground that Mr Alanov was totally innocent of the offence on suspicion of which he had been arrested on 20 June 2005.
5. Mr Alanov brought a claim in the Brighton County Court against the respondent claiming damages. He alleged that the three police officers present at the time of his arrest were trespassing in his flat. He claimed that his arrest was unlawful, as was his detention at the police stations. He alleged that he was assaulted at the police station because he was required to provide intimate samples and to hand over his clothes. The damages claim included an element for psychological injury, which Mr Alanov claimed had been caused by all these wrongful acts against him. Mr Alanov also claimed aggravated and exemplary damages.
6. The judge tried the case without a jury. It lasted as long as seven days. Mr Alanov was questioned in the witness box for two and half days. The judge concluded that two of the police officers had trespassed into Mr Alanov's flat at the time that he was arrested. There is no cross-appeal on this finding. The judge awarded damages of £500 for the trespass. That award is challenged on this appeal. The judge dismissed the claims for unlawful arrest, unlawful detention and assault.

The background facts

7. In June 2005 Mr Alanov lived with his partner and their baby daughter in a flat which is within a block of four flats in Upperton Gardens, Eastbourne. Mr Alanov's flat is on the first floor of the block. At ground level there is a communal front door for all four flats and occupiers of the flats are contacted by a buzzer and intercom system. Visitors can be let in the ground floor door by a flat dweller pressing a switch.
8. The judge made no detailed findings about Mr Alanov's description, but it is common ground that he is about 162 cm tall (or 5 ft 6 ins) and is of Iranian origin, although he left that country when three years old and went to live in Canada for some years. In 2005 he was 33 years old.
9. On the evening of 19 June 2005 the police received a report that a woman had been raped at 20.30 that night in a stairwell next to Upperton Gardens, outside a flat occupied by a lady whom the victim had just visited in the course of her work as a carer. The victim had been struck with an implement on the back of the head and then had been anally raped from behind. The description of the attacker given by the victim was that he was a white male, between 30-40 years old, 6 feet tall and that he smelled of BO. It was said that he was slim with a proportionate build and had short dark brown hair. He was said to be wearing blue jeans, a white T shirt and trainers. However, it was recognised by the police that, as the attack had been from behind, the description given by the victim might not be accurate.
10. After the police had interviewed the victim, they decided to carry out house to house enquiries in the area the next day, viz. 20 June 2005. All the officers who were to take part in this exercise were briefed. They were told of the circumstances of the alleged rape and given sheets of paper containing a list of questions which they should ask of the occupants of the neighbouring properties. That sheet had space on it to write down their answers. There was another sheet to record the names of the occupants of the premises. PC Baker and PC French were, at the time, members of the Crime Support Team ("CST"), a group of six officers and a sergeant, who were to take part in these house to house enquiries.
11. PC Baker and PC French worked together and, in due course, they went to the block containing Mr Alanov's flat. It was the second of the blocks they had visited. They arrived there at about 2pm. PC Baker rang the buzzer on the communal door on the ground floor. There was no reply on the intercom but a woman called out from a window on the first floor. This was Mr Alanov's partner, whom I will call Emily. She has subsequently become Mr Alanov's wife. PC Baker called up to her and explained that they were conducting house to house enquiries in relation to a serious incident and he asked if they could speak to her. She asked them to wait and shortly thereafter she appeared at the communal door with her baby in her arms. The officers explained why they were carrying out their enquiries and gave a description of the victim and the attacker, the latter being as I have set out above.
12. The upshot of the conversation between Emily and the officers was that she denied that her husband was in the flat. She seemed uneasy and nervous about allowing male police officers into the flat. PC Baker therefore suggested that a female officer should be summoned. He spoke to a sergeant and in a few minutes PCSO Mohns arrived at the communal door.

The key facts leading to the arrest of Mr Alanov

13. The sequence of events after the arrival of PCSO Mohns was the subject of much dispute at the trial. On the issue of whether Mr Alanov had been unlawfully arrested, the judge heard evidence from Mr Alanov, Emily, PCs Baker and French and PCSO Mohns. In his judgment, Judge Simpkiss set out in considerable detail his conclusions on the witnesses, the reliability of their evidence and his findings of fact. Before us Mr Simblet did not challenge any of the judge's findings of fact. I therefore take the relevant ones from the judgment.
14. First, the judge was most unimpressed with Mr Alanov as a witness. He concluded that, on several issues, Mr Alanov had lied in the witness box. Overall, the judge found that Mr Alanov was a very unreliable witness of fact, so that he could not rely on his evidence alone "in making good any of the facts which he needs to prove against the defendant": see para 40(e). The judge also concluded that Emily was untruthful in her evidence about certain matters. For instance, he found (at para 29(b)) that both witnesses lied about the fact that they both appreciated that the enquirers were policemen even before Emily went downstairs to the communal door. He found that Emily was untruthful in her evidence that she did not know that Mr Alanov was in the flat when she first saw the police.
15. Secondly, the judge found (at para 54) that PC Baker and PC French told PCSO Mohns upon her arrival that they were concerned about Emily's behaviour and they were suspicious about her because of her reasons for not letting them come up into the flat. (She had claimed her husband was away and she was alone; that the flat was in a mess because of building works; and that it was against her religion to allow males into the flat when she was there alone).
16. Thirdly, the judge found that all three officers were in the block of flats and upstairs outside Mr Alanov's flat with Emily's knowledge and consent, but that Emily did not consent to PC Baker or PC French entering the flat itself: (para 60). However, he found (para 90(a)) that PCSO Mohns was invited into the flat by Emily. Once PCSO Mohns was inside the flat, Mr Alanov appeared naked and shouted at her to leave. Emily joined him in this. At this stage, PCs Baker and French were at the door of the flat and PC Baker had his foot in the door to prevent it fully closing so that if anything went wrong they could enter the flat and assist PCSO Mohns: (para 90(c)).
17. Fourthly, the judge found that PCSO Mohns came out of the flat once she heard the shouts, then immediately after PCs Baker and French went into the flat, having heard some "male shouting". At that stage PC Baker had suspicions that Emily was lying about whether there was anyone else in the flat and these suspicions were confirmed when he heard Mr Alanov shouting: (para 90(c) and (d)).
18. Fifthly, PC Baker went straight to the bathroom where he found Mr Alanov naked, having a shower and washing his genital area: (para 90 (e)). I infer from the judge's recital of PC Baker's evidence at para 84 and the judge's "findings of fact" at para 90 that PC Baker told Mr Alanov (who was still in the shower and washing) that the police were making house to house enquiries about a serious sexual assault up the road, to which Mr Alanov replied "there has been no rape, you are making it up, how long have you been following…". Mr Alanov was neither calm nor normal but was immediately argumentative and agitated. The judge found that this "verbal behaviour added to the suspicions that PC Baker already had because of the denial of his presence by [Emily]": (para 90 (f)].
19. Lastly, Mr Alanov did not calm down but continued to wash himself. PC Baker repeatedly asked Mr Alanov to get dressed so that the police could speak to him properly but he made no attempt to do so. Mr Alanov admitted that he spoke to PC Baker facetiously: (para 90 (g) and (h)).
20. It was in these circumstances that PC Baker arrested Mr Alanov. Subsequently Mr Alanov got dressed, was handcuffed, taken to a police van and then transported to Eastbourne police station.
21. The judge made some other findings which I should note. He said (at para 57) that the officers found themselves dealing with a person whose behaviour was "verbally disgraceful and who was wholly uncooperative", both before and after arrest. The judge commented (twice: at paras 57 and 89) that if Mr Alanov had got out of the shower and cooperated with the police and explained what was going on then "I doubt very much that he would have been arrested". The judge also noted that Mr Alanov has, in fact, an unusual personality (of which Emily was well aware when the police arrived); that he is over-sensitive and that he is capable of a degree of paranoid thinking and that he had pre-existing obsessional traits, eg in relation to hygiene (see paras 39 and 94). Again, none of these findings are challenged on appeal.
22. I would also note that there is no finding by the judge that, before he arrested Mr Alanov, PC Baker asked Mr Alanov his name, his age, whether he lived in the flat, his relationship with Emily, or where he was at around 8.30 pm the night before. Nor is there any finding that PC Baker asked Mr Alanov what clothes he was wearing the previous evening or whether the police could look at those clothes. In the absence of such findings, I will take it that those questions were not asked of Mr Alanov before he was arrested.

The Law: when could PC Baker arrest Mr Alanov without a warrant?

23. These events occurred in 2005. At that time the powers of a constable to make an arrest without a warrant were contained in section 24(6) of the Police and Criminal Evidence Act 1986. This provided:

"Where a constable has reasonable grounds for suspecting that an arrestable offence has been committed he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence".

24. In this case there were reasonable grounds for suspecting that a rape had occurred on the evening of 19 June 2005. Therefore, as has been recognised in a number of cases, there are three questions to be determined in order to decide whether the statutory requirements for a lawful arrest have been satisfied. They are: first, did the arresting officer suspect that the person arrested was guilty of the offence. The answer to that question depends entirely on Judge Simpkiss's findings of fact as to PC Baker's state of mind. Mr Simblet does not challenge Judge Simpkiss' finding that PC Baker did suspect Mr Alanov of being guilty of the alleged rape.
25. Secondly, was there "reasonable cause" for that suspicion. This is a purely objective question and is to be determined on the facts as found by the judge (or by the jury where there is a jury trial). This is the only point in issue on this appeal. Many decisions of the House of Lords and this court have emphasised that the "threshold" for the existence of "reasonable grounds" for suspicion is low, meaning that the amount of material that is known to the arresting officer in order to found "reasonable grounds" for suspicion may be small, even sparse. But, the material, taken all together, must be such that, objectively speaking, the tribunal of fact is able to conclude that the arresting constable had "reasonable grounds" for suspecting that the person arrested was guilty of the relevant offence.
26. If it is concluded that the arresting constable did have reasonable grounds to suspect the person of being guilty of the relevant offence, the third question to be considered is whether it is reasonable for the arresting constable to exercise his executive discretion to make the arrest. This point does not arise on this appeal so I say no more about it.

Application of the law to the facts as found by the judge.

27. The judge listed "the factors" which PC Baker had in his mind when he arrested Mr Alanov at paragraph 90 of his judgment and I have summarised them above. The judge also noted (at para 91) that PC Baker had in mind the facts that (1) the rape attack had been from behind so that the description given by the victim may not have been accurate; (2) rape victims sometimes give inaccurate descriptions having suffered the trauma of such an attack; (3) the alleged offence had taken place very near Mr Alanov's flat. The judge also said that PC Baker "would have been concerned at the dangers of delay in obtaining forensic evidence and at the risks to the public while the attacker remained at large". These last two points may have been of concern to PC Baker but they cannot be relevant to a decision on whether he had "reasonable grounds" for suspecting that Mr Alanov was guilty of the alleged rape. They relate to fears about the future; they do not connect Mr Alanov with the alleged offence in any way.
28. The judge set out his conclusions at paragraph 94 of the judgment. He said:

"In conclusion, I am satisfied that the facts which I have listed, when taken cumulatively, did cross the threshold of being objectively reasonable suspicion of rape. They may not have amounted to a strong suspicion but enough. Here was someone who appeared to be being sheltered from the police and who behaved in a highly unusual way when the police arrived. We now know that he wasn't the rapist and also that he has an unusual personality and somewhat obsessive attitude to personal hygiene but the officers were not to know this at the time".

29. Effectively, the materials that PC Baker had with which to conclude that he had reasonable grounds for suspecting Mr Alanov of being guilty of the alleged rape were the following: (1) the alleged rape had taken place near Mr Alanov's flat some 20 hours before; (2) Emily had lied to the police about the presence of anyone else, in particular her partner Mr Alanov, in the flat; (3) Emily appeared nervous, was ill at ease and reluctant to let the police into the flat; (4) Mr Alanov was naked in the shower and washing his genitals when PC Baker entered the flat and carried on showering and washing even when asked to stop; (5) Mr Anlanov was aggressive, ill-behaved and uncooperative to the police and denied that there had been any rape; and (6) although Mr Alanov is only about 5 feet 6 inches tall, whereas the description of the attacker put him at 6 feet, that description might be inaccurate.
30. In my judgment, those materials do not pass even the low threshold for establishing, objectively speaking, that PC Baker could have "reasonable suspicion" that Mr Alanov was guilty of the alleged rape. None of the factors linked Mr Alanov with the offence in any particular way. Factors (2) to (5) might be lead to suspicion, but, equally, all were capable of reasonable explanation. In particular, the fact that Mr Alanov was in the shower and washing his genitals seems to me to be not a reason for suspicion at all, unless there was something more tangible to connect Mr Alanov with the alleged rape. But there was not. It is in this context that it is important to note that there are no findings of fact that PC Baker asked Mr Alanov his name, whether he lived in the flat, whether he was related to Emily (and if so how), where Mr Alanov had been at around 8.30 pm the previous evening, what clothes he was wearing at that time and whether the police could examine them.
31. If PC Baker had asked those questions then, even if Mr Alanov had continued to be as uncooperative and truculent as he had been up to that point and he had refused to answer any further questions, it may well be that, taken together, the circumstances would have provided sufficient material to go over the threshold and establish "reasonable grounds" for suspicion. But in the absence of those questions and in the absence of any material other than that I have identified above, although PC Baker was entitled to suspect (ie. be the subject of his "surmise or conjecture" as Lord Devlin phrased it) that Mr Alanov was guilty of the alleged rape, objectively, that suspicion cannot be regarded as being based on "reasonable grounds"..
32. Accordingly, I must conclude that the judge erred in finding that Mr Alanov's arrest was lawful. I fully accept the judge's comment that Mr Alanov's aggressive and uncooperative behaviour towards the police resulted in his arrest and that if Mr Alanov had not behaved in that way the chances are that he would not have been arrested and would not have suffered the consequences that he did. But his appalling behaviour did not make the arrest lawful.

The consequences of allowing the appeal on the claim for unlawful arrest

33. Several consequences flow from my conclusion. The first relates to the other aspect of the present appeal, which concerns the judge's award of £500 damages for the trespass of PC Baker and PC French in the flat for the period between their entry and up to Mr Alanov's arrest. As Miss Mortimer accepted, the whole issue of damages for trespass will now have to be reconsidered. There is no point in this court dealing with the issues set out in the grounds of appeal on this topic because the judge will have to reassess the damages for the trespass which must now encompass the whole period that PC Baker and PC French were in the flat.
34. Secondly, the conclusion that Mr Alanov's arrest was unlawful means, as Miss Mortimer also accepted, that Mr Alanov must succeed on liability in relation to his claims for assault and unlawful detention. It is agreed that all questions of damages for the unlawful arrest, unlawful detention and assault must now be reconsidered by Judge Simpkiss. In reconsidering the damages question, the judge will have the benefit of his existing findings of fact about how Mr Alanov behaved during the period in the flat, his transportation to Eastbourne police station and then on to Brighton police station and whilst he was detained there. The judge has also made findings on the way that Mr Alanov was treated by the police and others during that time. None of those issues will be relitigated.
35. The judge will have to consider the expert evidence that was adduced in support of Mr Alanov's claim for damages for psychological injury. That has been the subject of reports and there will be no need for any oral evidence on this topic.
36. Technically, the judge will also have to reconsider, in the light of the conclusion that the arrest was unlawful and the concession that Mr Alanov must succeed on liability on the other claims, whether there is any scope for the claims for exemplary or aggravated damages. For my part, given the findings of fact already made by the judge, I very much doubt it.
37. Counsel agreed that a hearing on all remaining questions of damages would take a maximum of one day before the judge. We agree; it must not take any longer.
38. Miss Mortimer accepted that the costs of this appeal must be awarded to Mr Alanov and they must be the subject of a detailed assessment if not agreed. As Mr Alanov is publicly funded, there must also be an assessment of his publicly funded costs of this appeal. Counsel agreed that all issues of the costs of the first trial before Judge Simpkiss must be remitted to the judge for his decision in the light of the conclusion that the arrest was unlawful and that Mr Alanov therefore must succeed on liability on his other claims.

Disposal

39. I would therefore allow the appeal and remit the case to Judge Simpkiss on the terms set out above which will be reflected in the court's order.

President of the Queen's Bench Division

40. I agree.