England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
The Hon. Mr Justice Hickinbottom
HQ12X03657

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd July 2014

Lord Justice Moses:

1. After an eight day trial before Hickinbottom J on 2 May 2013, the jury answered six questions which the judge had posed to them. As a result of their answers, judgment was given against the Commissioner of Police for the Metropolis in the sum of £25,200 as damages for assault, false imprisonment and malicious prosecution. The Commissioner says that the judge misdirected the jury in relation to two of the six questions put to the jury, the first relating to the false imprisonment claim, and the second relating to malicious prosecution. In addition, he says that the jury's verdict was perverse and against the weight of the evidence.
2. Before us, Mr Garnham QC, for the Commissioner, has concentrated on the misdirection and has not orally pursued the third ground, contending that the jury's verdict was perverse.
3. It is, however, necessary to deal with the unedifying events of this matter so as to place the judge's directions in their proper context. The trial concerns events which occurred as long ago as 13 December 2007. On that date, Angel Copeland was attending Bromley Police Station to act as an appropriate adult in respect of her teenage son. She was taken by PC Bains to the custody suite at about 7.15 p.m.
4. Whilst waiting in the custody suite, Ms Copeland's mobile telephone rang and PC Bains told her to turn it off. She did so. But she had another mobile phone in one of the three bags she was carrying. Whilst she and her son stood in front of the custody desk the Custody Sergeant, Police Sgt. Constable, started to read her son his rights At that moment, Ms Copeland's other telephone rang. Raising his voice, Police Sgt. Constable told her to turn it off or she would be removed from the custody suite. She responded that she was trying to do so. In the belief that Ms Copeland was refusing to do as she was told, Police Sgt. Constable instructed the officers standing behind her, PC Bains and PC Davenport, to escort her out of the custody suite. In response, PC Davenport took hold of her arm. This, so Ms Copeland contended, was an assault. In response to question 1, the jury found by a majority that the Commissioner had not shown that the force used was reasonable. There is no appeal against that answer to question 1.
5. At that moment, Ms Copeland's son put his arms around his mother to try and prevent her from being taken out of the custody area. PC Davenport and another officer, PC Sadhra, then took hold of the boy and PC Bains took hold of his mother in order to separate them. Ms Copeland alleged that that constituted a second assault. In answer to question 2, the jury disagreed, and took the view that the force used was reasonable.
6. After PC Bains had taken hold of her to separate her from her son, Ms Copeland began to back away from him. Over her left arm she was still holding the bags and coat with which she had entered the custody suite. In her right hand was a mobile phone. CCTV camera shots, which, as usual, take only 2-3 frames per second, and thus jerk from one image to the next, show that Ms Copeland was acting in an obstructive way. She was swinging her arms around as she retreated across the custody suite floor. She said she was "making space" around herself, keeping her eyes on her son. She was, so she said, twisting her torso around and waving her right arm across her in a sweeping movement. There is no doubt, from the CCTV, that she was swinging or "flailing" her arms about her. It was at that moment that PC Bains said that he was hit once and before he knew it, was hit again. CCTV footage and stills do not show that he was struck, but it is possible, at least according to the judge's directions to the jury, to see that PC Bains' head recoiled. PC Bains admitted that he was approaching her but, as the judge recorded in his directions to the jury, he was holding his hands in a defensive position.
7. The Custody Sergeant came from behind his desk and said that he saw her throw punches with a sweeping or swinging movement, although he did not see any punches land. He later accepted that it was more of a "flailing out".
8. There were two civilian workers in the custody suite. Neither was employed by the Commissioner, but they had a long-standing association with the police. Mr Mark Milsted-Smith gave evidence that he was standing very close by. He gave a statement within minutes of the event. The judge suggested to the jury that there were errors in that evidence when it was compared with CCTV footage. For example, he described PC Bains being hit to the right and to the left of his face, and said that Ms Copeland was taken to the seats thereafter. Neil Young, an "Enhanced Arrest Referral Officer" also made a statement that same evening. A Civil Evidence Act Notice was served and his statement was read. He says that Ms Copeland became aggressive and was shouting, and when she was struggling and having to be restrained, he saw her "lash out with her right hand which was clenched to make a fist and strike PC Bains to the face just under his right eye, which immediately started to redden".
9. PC Townsend, an officer Ms Copeland described as reasonable, told her to calm down. He then walked with her back across the custody area and it was his intention to escort her out. There was then a short conversation between Police Sgt. Constable and PC Bains. It was during that short conversation that, so Ms Copeland alleged, it was agreed that they should make up a story that she had punched PC Bains. She was told to wait on the seats and during the next two and a half minutes PC Townsend and Ms Copeland sat side by side on the chairs facing the custody desk, talking in a calm manner. PC Bains then left the custody area for a short time and Police Sgt. Constable then remonstrated with Ms Copeland as to her earlier behaviour, as she had shown disrespect and been "very rude".
10. In the meantime PC Bains went to the response room and asked whether anyone was free to carry out an arrest. PC Bains then alleged to PC Derbyshire, once he had left the response room, that he had been punched twice on the right side of his face. PC Derbyshire said that she had seen red marks on that part of his face. She returned to the custody suite and arrested Ms Copeland for assault causing actual bodily harm.
11. Thereafter, Ms Copeland alleged that she was assaulted twice on two further occasions. The jury found, in response to question 4, that she had been assaulted when she was arrested. The Commissioner alleged that she had to be restrained because she had physically resisted, and had started to "lash out again and struggle violently" as Police Sgt. Constable alleged in the custody record. But the CCTV camera showed that she offered no physical resistance at all, and the jury found in her favour in answer to question 4.
12. She was then taken to a cell and alleged a further assault. In answer to question 5, the jury found that she had not been assaulted.
13. Half an hour before the incident, PC Bains was examined by a Doctor Tippu, who recorded in a forensic medical examination the allegation and noted "redness with diffuse swelling under right eye". Ms Copeland remained in custody until 4.17 p.m. the following day, when she was released. When she re-attended the police station on 14 March 2008 she was charged with assaulting PC Bains in the execution of his duty. On 20 May 2008 she was convicted of that offence at the magistrates' court. On 27 October 2008 her conviction was quashed on appeal and she was bound over to keep the peace for 12 months in the sum of £100. It was recorded that prosecution counsel, having viewed the CCTV footage of the incident, "felt there was insufficient evidence".
14. It is apparent that no conclusion adverse to the Commissioner could have been reached unless the jury took the view that not only was PC Bains lying when he said that he had been punched twice, but that so too were Police Sgt. Constable, Mr Milsted-Smith and Mr Young. Moreover, the jury could not have reached adverse conclusions unless it took the view that redness and diffuse swelling under the right eye, seen only half an hour after the incident, had some explanation which was not attributable to blows delivered by Ms Copeland.

Burden of Proving that PC Bains Lied (Ground 1)

15. By the third question the judge asked the jury:-

"Has the Commissioner proved (i.e., is it more likely than not) that PC Bains did not deliberately fabricate the allegation he made to PC Derbyshire that Ms Copeland had hit him in the face?"

To this question, the jury answered "no". The Commissioner now appeals on the ground that the judge erroneously placed the burden of proving that PC Bains had not lied on the Commissioner, and not where it should have been placed, on she who made the allegation, namely, Ms Copeland.

16. The arresting officer, PC Derbyshire, had not witnessed the relevant events. She was entirely dependent upon PC Bains, who had indicated to her, in the response room, that he wanted an officer to arrest Ms Copeland because she had punched him in the face. The Commissioner contends that PC Derbyshire was lawfully acting on the information received from PC Bains and therefore the claim should have been formulated as an allegation of malicious procurement of the arrest by PC Bains' deliberate fabrication. This would and should have required the claimant to prove the lie.
17. The Commissioner relies on propositions identified by Auld LJ in Al-Fayed and Others v Commissioner of Police [2004] EWCA Civ 1579 These were founded upon three requirements within s.24(6) of PACE, identified by the Court of Appeal in Castorina v Chief Constable of Surrey [1996] LGR 241:-

"1. Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact of the officer's state of mind.

2. Assuming the officer had the necessary suspicion, was there reasonable cause for that suspicion? This is a purely objective requirement to be determined by the judge, if necessary on facts found by a jury.

3. If the answer to the previous two questions is in the affirmative, then the officer has a discretion which entitled him to make an arrest and in relation to that discretion the question arises as to whether the discretion has been exercised in accordance with the principles laid down in Wednesdbury". (Paragraph 42, citing Castorina at 249)

Auld LJ derived the following relevant propositions on the authorities:-

"1. In determining all Castorina questions, the state of mind is that of the arresting officer, subjective as to the first question, the fact of his suspicion, and objective as to the second and third questions, whether he had reasonable grounds for it, and whether he exercised his discretionary power of arrest, Wednesbury reasonably.

2. It is for the police to establish the first two Castorina requirements, namely, that an arresting officer suspected that the claimant had committed an arrestable offence and that he had reasonable grounds for his submission - …

3. If the police established those requirements, the arrest is lawful unless the claimant can establish on Wednesdbury principles that the arresting officer's exercise or non-exercise of his power of arrest was unreasonable…" (paragraph 83)

18. This case is not, however, concerned with PC Derbyshire's state of mind at all. That state of mind was entirely influenced by and dependent upon what she was told by PC Bains. If PC Bains deliberately lied, as alleged, then Ms Copeland's arrest, which was attributable to PC Bains' allegation and nothing else, was unlawful, and, there being no issue as to causation, resulted in an imprisonment which was false.
19. It is for the police to establish the lawfulness of the arrest (see Auld LJ (cited above) and in Al-Fayed (at paragraph 83). Where that arrest was procured by someone who has deliberately lied and procured or directly encouraged an arrest, then the arrest is unlawful. In Davidson v Chief Constable of North Wales [1984] 2 All ER 597, the question was whether a defendant to a claim for false imprisonment had "himself been the instigator, promoter and active inciter of the action (namely, the arrest that followed)" (602d). Sir Thomas Bingham MR said:-

"The question which arose for decision…was whether what Mrs Yates did went beyond laying information before police officers for them to take such action as they thought fit and amounted to some direction, or procuring or direct request, or direct encouragement, that they should act by way of arresting these defendants." (604h)

In short, the question was not whether the arresting officers had acted innocently but whether the arrest was unlawful by reason of the conduct of the informant in procuring or directly encouraging that arrest by false evidence.

20. It is not and was not disputed that the burden of proving the lawfulness of the arrest lay upon the Commissioner. The claim for false imprisonment was based on the absence of lawful authority for the underlying arrest. It was for the Commissioner to prove that the arrest was lawful and that, accordingly, there was lawful justification for the detention. The Commissioner could not do so unless he established that PC Bains was acting in good faith in requesting PC Derbyshire to arrest Ms Copeland. As Toulson LJ put it in R (M) v Hackney LBC [2011] EWCA Civ 4 [2011] 1 WLR 2873 [36]:-

"Lawfulness or unlawfulness is an attribute of the conduct of the defendant which caused the claimant's loss of liberty."

He recognised the principle at common law that:-

"There may be false imprisonment by A, although it was B who took the person into custody and B acted lawfully, provided that A directly caused B's act and that A's act was done without lawful justification."

21. The legality of the arrest and therefore of the detention turned on the legality of the actions of he who caused it, namely, PC Bains. Just as it was for the police to establish that the arresting officer, PC Derbyshire, suspected that Ms Copeland had committed an arrestable offence and that she had reasonable grounds for doing so, it was no less for the police to establish that that was not on the basis of false evidence deliberately intended to procure the arrest of Ms Copeland.
22. As the judge recognised, were it otherwise, the burden would shift according to whether PC Bains himself arrested Ms Copeland or whether he asked someone else to do so. There is no sense in such a shift. For those reasons, in my view, the judge correctly directed the jury as to the burden of proof in question 3.
23. But even if I were wrong, it could have made no difference in the light of the affirmative answer the jury gave to question 6 which involved a conclusion that Ms Copeland had proved on the balance of probabilities that PC Bains lied. It is to that question I now turn.

Were the Terms of Question 6 Sufficient to Establish that PC Bains was the Prosecutor for the Purposes of the Allegation of Malicious Prosecution? (Ground 2)

24. As I have already recalled, on 14 March 2008, when she re-attended the police station, Ms Copeland was charged by another officer, PC Cooper, with assaulting PC Bains. It was the Commissioner's contention at trial, pursued in this appeal, that the decision to prosecute would have been made on the basis of all the evidence by PC Cooper, as advised by the CPS. PC Bains should not be regarded as the prosecutor.
25. There is a quantity of jurisprudence as to how to identify whether a complainant is a prosecutor for the purposes of malicious prosecution claims against the police. The jurisprudence seeks to fix liability on the person who, in substance, is responsible for the prosecution having been brought whilst, at the same time, avoiding the danger of a chilling effect on any witness who might seek to avoid giving evidence for fear that they would be identified as the prosecutor, and thus liable for a malicious prosecution. The most recent authorities stem from the decision of the House of Lords in Martin v Watson [1996] 1 AC 74 HL. Up to the House of Lords a complainant who had falsely and maliciously made a complaint of indecent exposure to a police officer was held not to be the prosecutor because she had not signed the charge sheet. This conclusion was rejected by the House of Lords after full consideration of domestic and commonwealth authority. The question as identified by Lord Keith was whether the defendant is properly to be regarded, in all the circumstances, as "having set the law in motion against the plaintiff" (page 80F). In the High Court of Australia Dixon J referred to the independent discretion of a prosecuting authority, but continued:-

"If the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible." (Commonwealth Life Assurance Society Limited v Brain [1935] 53 C.L.R. 343 at 379)

26. Lord Keith endorsed that principle. He accepted that the complainant was not technically the prosecutor, but concluded:-

"The circumstance that a defendant in an action of malicious prosecution was not technically the prosecutor should not enable him to escape liability where he was in substance the person responsible for the prosecution having been brought." (86B)

"Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court on the matters in question, it is properly to be inferred that he desires and intends that the person he named should be prosecuted." (86G)

27. The simple quest to identify the person who was in substance responsible for the prosecution has been confirmed and applied in Hunt v AB [2009] EWCA Civ 1092 (paragraph 77) and in Ministry of Justice v Scott [2009] EWCA Civ 1215 (paragraphs 11, 14, 32 and 39).
28. The Commissioner contends that in light of the existence of a substantial amount of evidence from Police Sgt. Constable, Mr Milsted-Smith, Mr Neil Young, the doctor's report and the CCTV footage showing the attitude of Ms Copeland, there is ample material on which judgment could be made as to whether there was sufficient evidence to prosecute, quite apart from PC Bains. In those circumstances, as PC Cooper confirmed in evidence, an independent judgment had been reached to prosecute and PC Bains could not be regarded as the prosecutor.
29. In particular, in his clear and forceful submissions, Mr Garnham QC relied upon a passage in Lord Keith's speech in Martin, which followed those passages to which I have already referred:-

"Where the circumstances are such that the facts relating to the alleged defence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant," (page 86H)

Mr Garnham QC argued that it could not possibly be said that it was "virtually impossible" for PC Cooper to exercise an independent discretion or judgment, still less for the CPS, and in those circumstances PC Bains could not be regarded as the prosecutor for the purposes of the claim.

30. I disagree. It is only necessary to read on in Lord Keith's speech to see that he was not in that passage purporting to set out a test. He was describing a paradigm case which fitted the facts of that appeal since the complainant was the only person who could say whether she was the victim of an indecent exposure. Lord Keith endorsed the test adopted by the trial judge, who found that the complainant was "indeed actively instrumental in setting the law in motion against the plaintiff" (87E). Lord Keith said that that was the right conclusion for the right reasons.
31. My view of the words of Lord Keith is endorsed by Pill LJ in Ministry of Justice v Scott [2009] EWCA Civ 1215 (paragraph 39) and Longmore LJ (at paragraph 51). The test takes into account the Commissioner's fears that witnesses will be inhibited from coming forward. That was the argument advanced by the complainant/defendant in Martin v Watts and rejected on the ground that it would stultify completely the tort of malicious prosecution (87G-H).
32. In my view, there is a danger of over-complication. Brooke LJ attempted to draw a distinction between simple cases and complex cases, Mahon v Rahn (No 2) [2000] 1 WLR 2150 2206 (paragraphs 269 and 270). In my view the test is the same in every case and it is better not to search for some means of distinguishing between complex and simple cases.
33. Hickinbottom J applied the correct test. He asked himself whether DC Bains was "instrumental in the bringing of the prosecution" or was "in substance the person, or at the very least, a person responsible for the prosecution being brought". PC Cooper's discretion as to whether to prosecute was vitiated by the bad faith as found by the jury of PC Bains, who had lied in order to procure the prosecution. In my view, Hickinbottom J's test and approach to the facts cannot be impugned.
34. I raise only as a query the question as to whether trial judges should arrogate to themselves the question whether the person alleged to be the prosecutor was the person who in substance was responsible for the prosecution being brought. In this case, the Commissioner never asked for that question to be left for the jury, so the judge is hardly to be blamed for deciding the question himself and there is no ground of appeal suggesting that he should not have done so. In any event, on the facts, I take the view that the judge ought to have decided the question himself, since no other conclusion could reasonably have been reached.
35. This ground of appeal, however, did raise a further issue as to the sixth question the judge posed to the jury. On its face, the question posed to the jury suggests that provided the jury were satisfied that Ms Copeland had proved that PC Bains had deliberately fabricated his account of her hitting him, then her case was made out. In fact, of course, the jury had to be satisfied on the balance of probabilities not only that PC Bains had deliberately fabricated his account but that the other witnesses who claimed to have seen the blows were either mistaken or dishonest and that the evidence of the doctor as to swelling had some other explanation. Confining the question to PC Bains' deliberate fabrication ran the risk of diverting the jury's attention, so it might be said, from the need to consider all the evidence as to whether Ms Copeland had struck PC Bains in the face.
36. In my view, however, it is necessary to consider the judge's directions as a whole. Juries must be assumed not to confine their consideration of the facts solely to the question, but to pay conscientious attention to all the matters which the judge chooses to draw to their attention. Reading the summing up as a whole, it is clear to me that the jury cannot have answered that sixth question in the affirmative unless they had taken into account and rejected the evidence on which the Commissioner relied from all the other sources to which I have referred. The judge described "the core claim":-

"She claims that not only did she not strike PC Bains but he and other witnesses had deliberately lied about her hitting PC Bains in the face. In particular, she says that PC Bains has deliberately fabricated the story that she hit him – not that he is or might be mistaken but, knowing that she did not hit him, he has made an assertion that he was hit, first to PC Derbyshire very shortly after the events, and he has effectively conspired with at least Police Sgt. Constable, the custody sergeant, and two civilian witnesses who were present in the custody suite at the time, Neil Young and Mark Milsted-Smith, to prepare knowingly false statements upon which Ms Copeland was prosecuted."

37. Moreover, the arguments on behalf of the Commissioner had drawn specific attention to the force of the evidence from those other sources and in particular the fact, as the judge reminded the jury, that none of the witnesses, neither PC Bains nor Mr Young, nor Mr Milsted-Smith, nor Police Sgt. Constable, who had prepared their statements either the same evening or the following day, could have known what the CCTV would show. It would have been foolish, to say the least, to make those allegations in light of the unknown footage. This was a powerful argument to which the judge drew attention.
38. In those circumstances, in my view, the jury could not have been misled by the terms of question 6, which focussed on the prime source of what turned out to be a false allegation but did not divert attention from other sources, all of which went to the question whether PC Bains was making the allegation up or not. I would reject the second ground of appeal.

Perversity

39. This leads the final ground of appeal contending that the jury's verdicts were perverse and against the weight of the evidence. It is, as the court in granting permission on this ground remarked, rare for an appellate court to reverse verdicts of a jury on issues of fact. In Grobbelaar v News Group Newspapers Limited [2002] 1 WLR 3024 Lord Scott drew attention to the difficulty caused by the fact that the jury do not disclose their reasons. Their reasoning had to be reconstructed by the appellate court. However, he concluded that their factual conclusions should be treated with no greater, but no less, respect than the factual conclusions of judges (at paragraph 75). The difficulty for the Court of Appeal is that it lacks the ability to appreciate not so much the way the witnesses give their evidence (contrary to popular superstition, an unreliable means of telling whether a witness is lying or not) but because it is so easy to miss the nuance of the evidence given by witnesses when merely reading transcripts.
40. In the instant appeal there was undoubtedly a strong case to be made on behalf of the Commissioner. Ms Copeland's own credibility was questionable not only because of the way she answered the questions, but because of her behaviour in the custody suite on that evening. Her whole attitude can properly be regarded as irresponsible and obstructive and, to a substantial extent, responsible for the disorder which took place.
41. The agreement between PC Bains and Police Sgt. Constable to make up a false story of assault was said to have taken place during a five-second conversation after Police Sgt. Constable had beckoned PC Bains over to the Custody Sergeant's desk. It emerged, however, that far from beckoning PC Bains over, Police Sgt. Constable was pointing Ms Copeland and PC Townsend to the door of the custody suite, suggesting that she go out and calm down.
42. None of the witnesses, as the judge remarked, who purported to see Ms Copeland strike blows, could possibly have known that all the relevant parts of the incident would not appear on film. They were, on the claimant's case, making false statements, running the risk that their lies would be exposed. Nor was there any sensible explanation for the redness and swelling seen by the doctor shortly thereafter.
43. On the other hand, there were substantial arguments advanced on behalf of the claimant, Ms Copeland. CCTV, which does not show any blows being struck to PC Bains, despite the fact that there were two blows to the same place, show PC Bains and others who were there immediately after the alleged blows were struck. No attempt was made by PC Bains or the others to arrest or restrain the complainant on the spot, even though she was alleged to have struck him immediately before. He was content for her to stand at the end of the room unrestrained, speaking to PC Townsend. The CCTV, which we have seen, shows PC Bains in that period standing in a relatively relaxed position with his hands on his hips. According to the judge, it does show him flinching, but that is equally consistent with avoiding her flailing arms. There are other issues of inconsistency, particularly in relation to the Custody Sergeant, Police Sgt. Constable.
44. I am concerned about this case, in particular from the point of view of PC Bains. His career, so we were told, was probably at an end since, as a result of the jury's verdict, he could not be proffered as a reliable witness in the future. The very provenance of this claim causes me concern. It must be recalled that the complainant was convicted and fined. We have not had any explanation as to why it was that at Croydon Crown Court the prosecution appears to have agreed not to pursue the appeal, and to abandon the prosecution in return for a bind over. We are told that it was because the CCTV did not show the assaults. But that seems to me to be a feeble reason for not pursuing resistance to the appeal. I am left with considerable unease about this case, not assuaged by the award not only of aggravated, but exemplary damages. But loyal to the principles on which this Court will exercise extreme caution and reluctance in relation to overruling decisions of a jury on questions of fact, I would dismiss this ground of appeal. For those reasons, I would dismiss this appeal.

Lord Justice Patten:

45. I agree.

Lord Justice Maurice Kay:

46. I also agree and should emphasise that I share the concerns expressed by Moses LJ in the final paragraph of his judgment in the light of the points made in paragraph 40.