England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
His Honour Judge Saggerson
1UC00635/1UD78507

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th January 2014

Lord Justice Tomlinson :

1. This appeal concerns an incident in which two innocent young men, Polish builders of good character going about their lawful business in an Audi estate car in South London, were subjected to a terrifying ordeal at the hands of the Metropolitan Police. They have sought damages for, principally, wrongful arrest and, in the case of one of them, assault. The litigation has been a disaster for these two young men, for the judge has found that the police acted as they did upon the basis of "a whole constellation of compelling objective grounds" giving rise to a reasonable belief that the Claimants were implicated in a recent burglary. The judge has found that in apprehending the Claimants the police "forcefully used shock tactics" but that "on the basis of what they had honestly and reasonably concluded about the prevailing circumstances these shock tactics were necessary" and, accordingly "neither excessive nor unreasonable". Indeed the judge has concluded that for the police not to have arrested the Claimants on suspicion of burglary would have been "quite frankly . . . inexplicable". The judge noted the irony at the heart of the case that the more the driver of the Audi, the First Claimant, tried, as he saw it, to help the police, the more he only succeeded in fuelling their genuine suspicions about what was going on.
2. The trial was intended, as is common in litigation of this type, to be a jury trial. There was however no jury available on the first day of the trial and the Claimants elected to go ahead before the judge alone. The judge, His Honour Judge Saggerson, sitting at the Central London County Court, heard evidence and argument over three days and gave his extempore judgment on the fourth day of the hearing. His judgment is lucid, careful and comprehensive. This appeal against his findings of fact has been optimistic, doubly so given the nature of those findings to which I have already briefly referred. The appeal has in my view in large part been founded upon a complete misconception, a misconception which can be traced back to the trial.
3. Having been arrested and then bailed the Claimants were in due course informed that they would not be prosecuted for burglary. The Defence in this action unsurprisingly asserted the contemporary belief of the officers that the Claimants were implicated in the recent burglary and also asserted that at a critical point in the incident the driver of the Audi had driven into a police vehicle whilst moving forward and accelerating. The evidence in support thereof, in the shape of the witness statement of the driver of the police vehicle, Sergeant Holt, asserted the sergeant's belief that in so doing the driver of the Audi was attempting to evade being stopped by the police. At the beginning of his cross-examination of the driver of the Audi Mr Julian Waters for the Commissioner tendered an apology to the Claimants for the incident which had occurred, explaining that it was accepted by the Commissioner that the Claimants had had nothing to do with the burglary which had occurred. In putting his case as to the manner in which the Audi came to strike the police vehicle Mr Waters suggested, not unnaturally in the circumstances, that in manoeuvring into the police vehicle the driver of the Audi had acted accidentally rather than deliberately – the significant feature of course being not the motivation of the driver of the Audi but the reasonable inference which the officers would derive from his conduct. Mr Simon Browne QC for the Claimants objected, suggesting that it was not open to the Commissioner to put his case on this basis and suggesting also that the Commissioner was now put in difficulty in defending the case by his belated acceptance that the Claimants were not implicated in the burglary.
4. Mr Browne did not follow up his objection by seeking a formal ruling on the question whether the case being run was open on the pleadings, so that is an end of the matter. Guidance as to how situations of this nature should be dealt with was given by Lawton LJ in Rolled Steel Products Holdings Limited v British Steel Corporation & Others [1986] 1 Ch 246 at 309-310:-

"I wish however to add a comment about the pleading points which have had to be considered in this appeal. From the way they were raised by counsel and dealt with by the trial judge, I was left with the impression that neither the judge nor defending counsel appreciated as fully as they should have done the need for precision and expedition when dealing with pleading points.

My recent experience in this court shows that some counsel and judges are not giving pleadings the attention which they should. Pleadings are formal documents which have to be prepared at the beginning of litigation, they are essential for the fair trial of an action and the saving of time at trial. The saving of time keeps down the costs of litigation. A plaintiff is entitled to know what defences he has to meet and the defendant what claims are being made against him. If the parties do not know, unnecessary evidence may be got together and led or, even worse, necessary evidence may not be led.

Pleadings regulate what questions may be asked of witnesses in cross-examination. When counsel raises an objection to a question or a line of questioning, as Mr Morritt did on a number of occasions, the trial judge should rule on it at once. He should not regard the objection as a critical commentary on what the other side is doing. If the judge does not rule, counsel should ask him to do so. If a line of questioning is stopped because it does not relate to an issue on the pleadings, counsel should at once consider whether his pleadings should be amended. If he decides that they should, he should forthwith apply for an amendment and should specify precisely what he wants and the judge should at once give a ruling on the application. The principles upon which amendments should be allowed are well known and are set out in the current edition of the Supreme Court practice."

See also Hawksworth v Chief Constable of Staffordshire and Another [2012] EWCA Civ 293 where the above passage was cited. However there was nothing in Mr Browne's objection which was in my view quite misconceived. The pleading was simply to the effect that "the driver of the Audi accelerated and drove into the police carrier". It was entirely open to the police to assert at trial that that had occurred as a result of an accident rather than as a deliberate act, albeit that it was reasonably perceived by the officers at the time as a deliberate act. The pleading encompasses both possibilities. It was in fact the Claimants' case that the police vehicle had deliberately rammed the Audi. The judge rejected that case and concluded that neither driver had intended to make contact with the other vehicle. What had occurred was an accident, explicable in the light of the honestly held beliefs of each driver as to what the other was trying to achieve. There is no substance in the argument that the judge reached a conclusion which was not open to him on the basis of the Defendant's pleaded case. The judge concluded that the vehicles came into contact in a manner which reasonably fuelled the officers' suspicion that the occupants of the Audi were implicated in a recent crime. That was the pleaded case.

5. Equally, the police could only ever put their case on the basis of the belief which they had formed at the time, notwithstanding that belief had proved to be ill-founded. Ground A(2) of the Grounds of Appeal under the rubric "Errant Determination of Case" reads:-

"It was not open to the court to determine the issue of lawful arrest on a case which did not exist. If the police witnesses were wholly wrong about their reason for arresting and detaining the Claimants, it was not open to the judge to create an untested, unpleaded and wholly different case to justify the arrests as that was not [what] went through the minds of the officers in exercising their duty."

I simply do not understand this. The police were indeed wrong in their belief that the Claimants were implicated in the burglary, but their case was that their belief was reasonable at the time. Indeed, they could have had no other case.

6. The appeal has also been founded upon another misconception. At paragraph 6 of his Skeleton Argument in support of the application for permission to appeal and of the appeal itself Mr Browne asserts:-

"It was therefore clear, and agreed between the parties, that the collision between the vehicles was determinative of the [question] whether the police had grounds to act as they did; otherwise they were only going to speak to the occupants."

This is however not so. The Defendant's case depended, amongst other things, upon a course of driving of the Audi over a period of 43 seconds during which it covered 380 metres. The Defendant's case was not dependent upon the circumstances of the collision alone.

7. Having exposed the unpromising foundations upon which the appeal is based, I must set out the facts. In so doing I rely heavily upon the judge's account, from which I quote verbatim sometimes without attribution.
8. On 22 July 2009, shortly after 5.30 pm, the Claimants, both in their twenties, respectively the driver and front seat passenger of a Polish-registered left-hand drive manual transmission Audi A4 estate car, were arrested at the junction of Aboyne Road and Glentanner Way in Wandsworth, London SW17. They were arrested on suspicion of burglary by uniformed Metropolitan police officers from the Territorial Support Group. They were builders who sometimes worked together and they had been out pricing a job together earlier that afternoon in New Malden. They had also been collecting building supplies. They were heading south along Aboyne Road in the general direction of Plough Lane and then onwards to Mitcham.
9. About half an hour earlier a distraction burglary had taken place at the home of an elderly householder also in SW17 and very close to Aboyne Road. In that burglary approximately £3000 in cash had been stolen by three men described to be between the ages of 40 and 50, masquerading as plumbers. One of these men was thought to have had a Polish or Scottish accent. Two of them were wearing white shirts or tops, two of them were of stocky build; one was described as skinny. These descriptions were circulated to police, including the Territorial Support Group Officers who were in a marked Mercedes Sprinter personnel carrier. Seven officers in this vehicle were out targeting burglars, gangs and street crime in the Wandsworth area. Aboyne Road is a two way single carriageway road with a speed limit of 30 mph.
10. Stripped to its bare essentials what occurred is this. The police having spotted the Claimants' car followed it over a course of about 380 metres along Aboyne Road. Ultimately the Audi stopped in the mouth of the junction with Glentanner Way. The police decamped from the carrier and the police vehicle ended up in a position preventing the Audi from moving, there having been a minor collision. The police proceeded to smash the windows of the Audi and the driver and passenger were both taken from the car through the nearside driver's door. Both were restrained and arrested and taken to the police station where they were interviewed and detained in respect of the distraction burglary for approximately 24 hours.
11. Again, stripped to its essentials, the Claimants' claims involve allegations that the police had no reasonable basis for detaining or arresting them at Glentanner Way. They did not match the descriptions given for the burglars and the Audi itself was being driven perfectly reasonably throughout and the driver had only ever intended to pull over to allow the police vehicle to overtake him. It is said that the police, on whom a red mist descended, deliberately rammed the Audi with their vehicle; the police overreacted to the information they had and the situation in which they found themselves and in overreacting violently smashed the car windows, hauling the Claimants out of their car, using excessive and unnecessary force to restrain them.
12. The police, as I have already indicated, now accept that the Claimants were indeed innocent of any wrongdoing. They had nothing to do with the burglary. However it is the case of the police that they had reasonable grounds that they honestly held at the time to suspect otherwise, and, given the facts available to them at the time, they acted in good faith, reasonably and responsibly.
13. In making his findings of fact the judge rejected parts of the evidence on both sides as unreliable. The judge made due allowance for the circumstance that for the Claimants this was a stressful incident which left them shocked and frightened. The Second Claimant described the whole incident as being like a movie, and the judge concluded that the Claimants' account was in consequence of both this and of their frightening experience unreliable and exaggerated. But the judge also recorded that the police evidence too had to be considered with a degree of caution.
14. Having received the description of the perpetrators of the distraction burglary PC Lee Barwin, sitting in the front of the police carrier, almost immediately saw in the close vicinity of the burglary the Claimants' car, with Polish number plates and two white males in the front wearing white shirts or tops. In consequence there was immediate suspicion that the men in the Audi were involved in the burglary, and the police concluded that the Audi should be stopped and the occupants spoken to. PC Barwin accepted that from what he had seen he would not have concluded that the occupants of the Audi were between 40-50 years old, but he also said, the judge thought realistically, that the descriptions of ages of suspects can be unreliable. He could not judge the height of the suspects as they were seated.
15. Sergeant Holt took up position about 100 ft behind the Audi, initially with a white courier van between the two vehicles. Sergeant Holt accelerated towards the Audi, overtaking the white van. At about the same time the first Claimant speeded up to get through a chicane in the road before oncoming traffic in the opposite direction. On coming out of the chicane the First Claimant saw for the first time the police carrier behind him with its flashing lights. His first thought was to get out of the way of the police carrier, not thinking for a second that it was him who was under suspicion. Accordingly, on leaving the chicane he accelerated, his intention being to find a safe stopping place. Unfortunately, as he did so, the Audi emitted a plume of black diesel smoke from its exhaust which was seen by several occupants of the police carrier. All this occurred within a space of a few seconds – the chicane, the Audi's acceleration and the plume of diesel coinciding with the police carrier overtaking the van and the putting on of the flashing lights and sirens. This created the impression to the police in the carrier that the Audi was not anxious to stop. In fact the First Claimant did stop the Audi having first negotiated a bend to the left. At that point he put on his hazard warning lights.
16. The police carrier lost sight of the Audi as the Audi went round the bend to the left but as it came round the bend it slowed down, almost certainly with the intention of stopping so that officers could speak to the occupants of the Audi to further their enquiries about the burglary. At this point the First Claimant accelerated away, typically as Sergeant Holt thought and the judge accepted, of the manner in which some criminals behave when trying to avoid speaking to the police. The First Claimant inaccurately recalled that the police carrier had stopped behind him, but the judge found that it had in fact only slowed but that in any event the slowing of the police carrier had suggested to the First Claimant that the police thought that they did not have safe room to pass him. The First Claimant's intention in accelerating away was simply to move away from this part of the road, which is effectively an elongated S-bend, in order to move his car out of the way to somewhere safer in order to allow the police to pass. Unfortunately the well-intentioned decision of the First Claimant to move away from the S-bend to find a better place to allow the police to pass, and the manner in which he executed his manoeuvre, only served to fuel the suspicions of the officers in the carrier.
17. The judge accepted that despite everything that had occurred to this point the intention of the police to stop and speak to the occupants of the Audi was not in the event obvious to these Claimants, although he also concluded that it should have been. The latter finding is as I see it significant since it follows that the officers were reasonably entitled to believe that they had effectively communicated their desire to stop the Audi and speak to the occupants.
18. The judge recorded the sequence of events which followed in this way:-

"19. Mr Skrzynski drove the Audi further along Aboyne Road to point F on the aerial photograph. This is the junction with Glentanner Way at p. 39 of the photographs behind tab 7 in bundle 2. I accept Mr Skrzynski's evidence that he initially pulled into the junction as if it were a lay-by, thus blocking the entire junction, although I reject his evidence that the police carrier pulled up behind him and waited for between 10-15 seconds whilst the Audi was in this position. This is not a sustainable version of events in my judgment when matched with the expert evidence. I also reject the suggestion that he pulled the Audi up on to the pavement and stopped parallel with the white dotted lines with the bonnet almost touching the hedge that borders the garden on the corner of the road near where the tree is pictured at photo 39. Such a manoeuvre would have been entirely unnecessary and indeed illogical even on Mr Skrzynski's own case, and it is inconsistent in my judgment with the expert evidence and indeed the totality of the other reliable factual evidence in this case.

20 . What happened, I find, was this. Mr Skrzynski pulled into the junction as if it were a lay-by, initially stopping across the middle of the junction parallel with the dotted Give Way lines but just inside them. He wanted in due course to continue along Aboyne Road once the police had passed, but being told by his passenger Mr Pokruszynski to allow for the possibility that the police might want to go down Glentanner Way – probably this was the result of Mr Pokruszynski hearing the 0.75 second blip of the police siren (something the driver did not hear) – Mr Skrzynski moved to reposition the Audi within the mouth of the junction. By this time the police carrier had slowed to a stop and was stopped for 3.8 seconds. Allowing for a second or two as reaction time to what his passenger had said, the driver Mr Skrzynski started to move the Audi further towards the pavement at the far side of the junction but slightly angled towards Aboyne Road. By this point the Audi's rear wheels were now probably beyond the centre white line of Glentanner Way. This is roughly the position sketched by PC Hanks, a local officer who wrote the collision report and made the sketch that is to be found at p. 168 of bundle 2, although at this time the Audi would have been a little further back from the position shown on the sketch. The Audi had its hazard lights on. As the police carrier slowed to its stop, three officers alighted from the side door unseen by the occupants of the Audi, these being PCs Cooper, Nash and Mayer.

21. I reject the evidence of Mr Skrzynski that the police vehicle at any stage of what may have happened rammed the side of the Audi, as I reject Mr Pokruszynski's evidence to the same effect. Mr Pokruszynski said the whole thing was like a movie, and I conclude that the Claimants' evidence of what happened at the junction of Glentanner Way is unreliable and exaggerated due to the movie-like sequence of events that they perceived to be taking place which frightened and unsettled both of them. The police carrier was in my judgment stationary only for 3.8 seconds, and I accept from Sergeant Ziegan Holt's evidence that several of the officers on board exited the carrier from the nearside side door demonstrated that the carrier was not completely alongside the Audi, he (the sergeant) decided – and it was his intention – to reposition the carrier by moving it forward towards the front of the Audi. However, I conclude that one of his purposes in doing this was to block off any possible escape by the Audi into Aboyne Road, he having concluded that the Audi had been trying to evade the police up to that point by the behaviour he had witnessed along Aboyne Road. I do however accept that the repositioning of the police carrier would have made a safer environment within which the police could speak to the occupants of the Audi, and this was also likely therefore to have been part of the Sergeant's thinking in repositioning the carrier. By now, as Sergeant Ziegan Holt said, and I accept, his intention was that the occupants of the Audi should be spoken to, the driver arrested for failing to stop when requested by police to do so, and that both occupants should be questioned about the burglary.

22. Mr Skrzynski's recollection about his car being rammed is wrong, but in my judgment Sergeant Ziegan Holt's evidence about what happened next is also inaccurate. He said that as he pulled the carrier forward to reposition it the Audi moved forward again and crashed into the side of the carrier in the region of the front wing where it got wedged. He said he thought the occupants were going to accelerate away again. This in my judgment cannot be right. It is inconsistent with the damage to the Audi, which is shown in diagrammatical form on p. 276 which is tab 26 bundle 2, and is also inconsistent in my judgment with damage to the front nearside bumper corner of the police carrier and is on balance I find inconsistent with the fact that the passenger door and the offside front door of this car was blocked or partially blocked as a result of the collision that actually did occur.

23. On the balance of probabilities the collision that occurred happened in this way. As the driver of the Audi was making a move to clear access for the police, as he thought, to Glentanner Way, Sergeant Ziegan Holt was starting to reposition the carrier. On beginning to move the carrier forward to reposition it, the Sergeant moved no more than a couple of metres forward and he probably imperceptibly turned the carrier slightly to the left as he did so. As the carrier was still moving, the Audi was also moving forward. The expert agrees that there is evidence from the data to suggest that both vehicles were moving at the time of the impact between them. Indeed on graphic illustration of the impact between the vehicles on p. 128a of bundle 1 or interpreting that graphic illustration the first point of contact or impact between the vehicles Mr Lloyd accepted that it is likely that there was an external force that was likely to have impacted with the police carrier and that the moving Audi is the likely explanation of that external factor. So as a result of these two vehicles both moving at the same time the front nearside corner of the carrier, much the higher of the two vehicles, came into contact with the offside of the Audi just behind the front passenger door, causing the Audi to stall and stop, as a result of which the carrier continued to move at an angle further forward only another 2-3 metres scraping and causing further damage to the side of the Audi and coming to rest as approximately illustrated in the collision report diagram drawn by PC Hanks. This, as I indicated, in my judgment is supported by graphic evidence supplied by Mr Lloyd at p. 128a.

24 . I am satisfied that this movement of the Audi was not due to the Claimants deliberately trying to drive off; on the contrary, the driver was once again trying to be helpful. PC Barry, still on board the carrier at the rear, could see the Audi through the side door of the carrier although at what angle is unclear, and he said that as the carrier was being repositioned the Audi made a very sudden movement. His impression was that the Audi struck the carrier. The Sergeant said that the Audi moved off. PC Nash said the Audi lurched forward. PC Ellis noted the Audi "suddenly accelerate". PC Mayer said that it surged forward, and as he had stepped out of the carrier, he being one of the officers who left the carrier as it came to a halt earlier, he said as he stepped out of the carrier he was aware – and I accept – that the Audi appeared to be revving in order to move and an emission of some diesel smoke from the exhaust of the Audi was observed. I accept that this was what the officers saw, and in the context of what happened in the lead-up to the mouth of Glentanner Way in my judgment their perceptions that the Audi was in the process of moving off again were justified. It will be remembered that the Claimants accept at this point that the Audi was being moved although their reasons for doing so were entirely innocent ones.

25. The result of all this however was to make a bad situation worse for the Claimants. By this stage they were subject to a chain of horrible coincidences. They were driving a Polish-registered car; they were white; they were both male; both wearing white shirts; and had driven off from point D on the aerial photograph as the police had pulled up behind them, flashing blue lights and with the police siren engaged. The ages of the occupants of the Audi were not consistent with the burglars the eye-witnesses had described, and it is a matter of subjective impression as to whether the Claimants are stocky or not, but nonetheless I accept that by this stage immediately before the collision in the mouth of Glentanner Way the police officers variously and honestly believed that they had good grounds for suspecting that the Claimants were implicated in a burglary and the driver of the Audi had failed to stop when clearly told to do so by officers further back down the road.

26. The movement of the Audi forward in the mouth of Glentanner Way led the Sergeant and PC Barwin and others to whose evidence I have referred to conclude that the occupants were indeed about to make good their escape again. I accept that the impression – wrong, as it turned out – given to the police officers was that the Audi was going to make a sudden break for it back on Aboyne Road before the carrier was fully in position. By this time therefore, that is, by the time the collision occurred, the incriminating factors were piling up against these two innocent Polish builders. As a result of the Audi moving forward, the officers on the ground acted quickly and with force. The situation was confused and chaotic and there was much shouting and screaming, shouting of instructions from the officers to the occupants of the car and shouts of shock and protest from the occupants of the car.

27 . PC Barwin approached the passenger offside window, there being room for him to do so between the Audi and the police carrier, there being a triangular narrow space for him to get into albeit there was not room for anyone to get out of the Audi from that passenger door. I accept PC Barwin's evidence that he was shouting at the confused and frightened Mr Pokruszynski and he was shouting at him to keep his hands up and visible, and I accept PC Barwin's evidence that the passenger was not immediately doing so but instead appeared to be reaching into the door pocket of the car. Because the passenger was not obeying his instructions, PC Barwin took his baton, extended it, and smashed the passenger window all the time shouting instructions at the passenger – he said, and I accept, to no immediately visible effect. As a result he smashed the rear offside window. PC Barwin said he did this to distract the passenger from whatever the passenger was doing and get him to focus on the instructions being shouted at him – what might be described as a 'shock and awe' tactic. In addition I infer that as all these events unfolded in a few seconds PC Barwin must also have harboured residual fears of the vehicle making off and he would, I infer, certainly have been concerned about concealed weapons – a ridiculous fear, when this incident is looked at with the benefit of hindsight, but I conclude that it would have been a perfectly genuine concern at the time.

28 . Mr Pokruszynski said he did exactly what he was told and put his hands up and visible inside the car, putting his arms up and his hands on or at least very close to the interior roof of the car. I accept that he did do this, but in my judgment on the balance of probabilities he did this as a result of the shock tactics deployed by PC Barwin. I conclude that Mr Pokruszynski was understandably panicked and panicking and therefore I have to reject his evidence that he immediately complied with PC Barwin's request. As I have indicated, the passenger's impression was that he was in a movie and I conclude that this understandable position in which he found himself with great difficulty has led to the distortion of events in his own mind.

29. Mr Pokruszynski ultimately was pulled – although he was not resisting and tried his best to propel himself – Mr Pokruszynski was pulled from the vehicle across the central gearbox of the car through the driver's nearside door of the Audi and this was done because nobody could have got out of the passenger side door due to the proximity of the police carrier. Coming out of the nearside driver's door he landed flat on the road surface, no doubt with some force. In the course of this manhandling he is, I conclude on balance of probabilities, likely to have sustained the nasty bruising to his right arm and shoulder. I reject the notion that he was hit by a police baton whether deliberately or recklessly when the windows were smashed or otherwise.

. . .

31. Mr Skrzynski had already of course been assisted out of the car from the driver's side. He had been taken hold of and he was stood up against a hedge in the position such as that which is illustrated on photograph no. 50 behind tab 7 of bundle 2. Mr Pokruszynski having been taken out of the car was made to lie face down on the tarmac of the road, not the pavement, with his feet about a metre from the driver's door of the car, which would have been about where he would have landed having been pulled and eased himself out of the driver's door of the car itself. Both were terrified. Both were shouting and screaming and protesting their innocence. Both were handcuffed.

. . .

33. Things, one might pause to observe, could not, one might have thought, got any worse for these two gentlemen, but worse indeed it got because the Audi was searched by police officers including PC Barry, whose evidence I accept. The vehicle was thoroughly searched and the police found £1500 in cash in a case in an HSBC transparent bag, and Mr Skrzynski had another £500 in cash on his person. The explanation given for all this cash, which was given at the scene, in the event turned out to be true, as did everything else the Claimants said, but in the context of the events that had occurred to the searching and arresting officers and others when it became known to them, the finding of this cash merely served to confirm their suspicions about the links between the occupants of the Audi and the recent serious theft of cash. The fabric of the vehicle however I conclude was not ripped apart by the searching officers and Mr Skrzynski's evidence that the ripping of fabric within the vehicle merely reflects his tendency, together with Mr Pokruszynski, to exaggerate the actions of the officers in what for them continued to be extremely stressful and trying circumstances."

19. It is common ground that the judge correctly directed himself as to the elements of wrongful arrest. He concluded, as I have already adumbrated above, that by the time the Audi lurched forward as the police carrier was being repositioned by Sergeant Holt, the police in the carrier collectively had abundant objective grounds for suspecting that each of the occupants of the Audi was guilty of the distraction burglary. The judge took into account that the police had to balance countervailing factors, such as the fact that the Audi had twice displayed its hazard warning lights when stopping, was not breaking any rules of the road such as speeding or crossing central white lines, and that the match between the descriptions of the burglars and the occupants of the Audi was only partial, but concluded that they were nowhere near weighty enough significantly to dilute what he concluded was, as I have already mentioned, "a whole constellation of compelling objective grounds . . . for suspicion that the occupants of the car were implicated in some way in the burglary". The discovery of the cash merely reinforced this reasonably held belief.
20. It is again common ground that the judge correctly directed himself that if excessive or unreasonable force was used to effect the arrest, the same would amount to assault and battery even if the arrest was otherwise lawful. Again, as adumbrated above, the judge found that the police "forcefully used shock tactics here but in my judgment on the basis of what they had honestly and reasonably concluded about the prevailing circumstances the shock tactics were necessary . . . and the force used was neither excessive nor unreasonable".

The Grounds of Appeal

21. I have already dealt with the first main ground of appeal, which is to the effect that the judge found for the Defendant on the basis of a case that was not put forward by the Defendant's witnesses as a matter of fact, was not pleaded by the Defendant and accordingly was not open to the judge. This ground of appeal is misconceived.
22. The second and third grounds of appeal relate to the judge's finding as to the circumstances in which the vehicles collided. There were in fact two distinct collisions, separated in time by only 0.6 of a second as recorded by a Siemens VDO Incident Data Recorder installed in the police carrier. The second impact was more in the nature of a scraping/sliding contact than a direct impact. The Claimants called to give expert evidence on their behalf Mr Keith Lloyd, a forensic accident and digital recording equipment systems consultant. The Defendants instructed Mr Peter Sippitt, an incident data recorder consultant. Mr Lloyd and Mr Sippitt met before trial and produced a joint statement recording areas of agreement and disagreement. It was Mr Lloyd's evidence at trial that the IDR data alone was not conclusive in determining which vehicle first collided with the other. However taking into account the pattern of damage on the two vehicles and their post-impact positions Mr Lloyd concluded that it was more likely that the police vehicle drove into the Audi rather than the other way round. He also recorded that he could not refute the suggestion, made by Mr Sippitt in his report, that the Audi was also moving at the time of the initial impact. Mr Sippitt was not called to give evidence at the trial.
23. It is said that the judge had no sound basis upon which to reject the evidence of Mr Lloyd. It is also said that the judge was wrong to attribute to Mr Lloyd agreement in his evidence that both vehicles were moving at the time of the initial impact between them. I agree that in this latter regard the judge probably misunderstood an answer of Mr Lloyd which related to the second impact rather than to the first. Since the two impacts were separated by only 0.6 of a second I cannot think that this point is of much moment. In any event there was an abundance of evidence to the effect that the Audi started to move forward, lurched forward as it was put, as the police carrier came alongside. Indeed the First Claimant accepted that he had moved forward at this juncture and Mr Browne accepted that this occurred before the first impact. The judge found as a fact that the Claimants had failed to make good their case that the police carrier deliberately rammed the Audi and it was not suggested that the Audi's initial forward movement was caused by an impact received from the police carrier. Since it is accepted that the Audi was moving at the time of the second impact, it seems to me an obvious inference in all the circumstances that it was also moving 0.6 of a second earlier. The judge's finding at paragraph 23 of his judgment that both vehicles were moving at the time of the first impact seems to me an entirely sensible synthesis of the evidence, which is only in the most technical sense a rejection of Mr Lloyd's evidence, since Mr Lloyd could not rule out that the Audi had been moving at the time of the initial impact.
24. I have to say that I doubt if the minute forensic examination of the mechanics of the first impact can bear the weight sought to be put upon it. It was after all the culmination, or almost the culmination, of a series of incidents and unfortunate coincidences which had given rise to reasonable suspicion. Be that as it may, it seems to me that there was ample evidence upon the basis of which the judge could safely conclude that the two vehicles were both moving when they first came into collision with each other and, more to the point, that it was reasonable for the officers to conclude that the driver of the Audi was seeking to move off again. These two related grounds of appeal are thus in my view equally unavailing to the Claimants. The judge's consideration of how the impact between the vehicles occurred was in no way flawed by his wrongly attributing to Mr Lloyd agreement that both vehicles were moving at the time of the initial impact. Mr Lloyd's evidence was consistent with that having been the case. The judge saw and heard the witnesses and we are in no position to second-guess his careful appraisal of a chaotic situation which lasted for only a matter of seconds.
25. The final ground of appeal is that the judge was not entitled to conclude that the Second Claimant had sustained the bruising injury to his right arm during his removal from the car and ought to have accepted his evidence, characterised by Mr Browne as unchallenged, to the effect that he was struck forcibly and unnecessarily by an officer who had first smashed the passenger window with his truncheon.
26. The Second Claimant's evidence in his Witness Statement was that "I took a hard blow to my upper right arm when one of the officers smashed the passenger front window with his truncheon".
27. In examination in chief his account was broadly the same, although now there were two blows:-

"A. . . . and obviously I forgot missing part, very important part, I am really sorry, I have to get back, because when I was in the car and I had my hands up and they smashing windows, some – I don't know which officer was it, but one of them, they punched my right arm couple times, really hard, when the window was smashed. I don't know if that was accusing of the one that smashed the window and obviously my hand was on the way, but it was couple of times so – and obviously I was having bruise later on, and big pain.

Q. You say punched, was that with the stick or was that . . .

A. Stick, with the stick."

28. Mr Waters did cross-examine the Second Claimant, the thrust of the cross-examination being to the effect that the blow to the arm had occurred as part and parcel of the process of the window being smashed:-

"Q. The blow to your arm was caused by . . .

A. The police.

Q. A truncheon smashing the window?

A. Yes, and I – that was one more hit after the window was already smashed, which was unnecessary, definitely.

Q. I suggest to you it was not, he was doing it in the process of clearing the window away.

A. No, the window was already glass and I was hitten in the right arm."

29. The officer involved, PC Barwin, was cross-examined about this. Mr Browne asked him "Did you not have a go at the passenger in the seat through the broken window with your stick?" to which he replied "Absolutely not, no". PC Barwin was asked if he could explain how the Second Claimant had sustained bruising to his right upper arm, and he said that he could not and that he didn't know and couldn't tell although he volunteered that it might have happened whilst the Second Claimant was being manhandled out of the car.
30. I have already set out above paragraphs 27-29 of the judge's judgment where he deals with the self-standing allegation of assault. It is quite true that Mr Waters did not put to the Second Claimant that he had sustained his bruising whilst being manhandled out of the car, although that is the explanation volunteered by PC Barwin subsequent to the Second Claimant giving evidence. However the judge unequivocally rejected the Second Claimant's evidence that he had been struck by a police baton, whether deliberately or recklessly. That evidence had been challenged by Mr Waters, in the sense that he suggested that the contact had occurred in the process of the officer clearing away the broken glass rather than as a deliberately or even recklessly aimed blow. The judge had the benefit of seeing and hearing both the Second Claimant and PC Barwin give evidence, and the conclusion which he reached was plainly open to him. The judge was plainly not persuaded on the balance of probabilities that the Second Claimant had been assaulted. There is nothing in this ground of appeal either.
31. Accordingly I would dismiss this appeal. As I noted at the outset, this litigation has been a disaster for the Claimants and it will be of small comfort if I add my own words of sympathy. In the interests of balance however, I cannot forbear from reiterating the finding of the judge, set out at paragraph 16 above, that the Claimants ought to have realised at a relatively early stage of this sorry incident that the police wanted to stop them and to speak to them.

Lord Justice Floyd :

32. I agree.

Lord Justice Patten :

33. I also agree.