England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COMBINED COURT CENTRE
Mr Recorder Reeds QC
3YU01734

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/10/2017

Lord Justice Gross :

INTRODUCTION

1. The Appellant is a committed animal rights campaigner. On the 14^th October, 2009, then aged 16, he set up a stall in Middlesbrough town centre. The stall is pictured in the photographs included in our bundle. They show, prominently, a collection box, which can be seen to say "Stop Huntingdon Animal Cruelty" ("the collection box"). Amongst his other activities, the Appellant was encouraging members of the public to put money into the collection box. Suspicions were aroused that he was collecting money by falsely representing himself as a charity. In the event, shortly after 14.00, he was arrested on suspicion of committing an offence under s.2 of the Fraud Act 2006 ("the 2006 Act"). However, no criminal proceedings ensued.
2. Subsequently, the Appellant commenced proceedings against the Respondent for damages, inter alia, for false arrest. By his judgment dated 9^th September, 2015 ("the judgment"), Mr Recorder Reeds QC, sitting in the County Court at Leeds, dismissed the Appellant's claim. He now appeals to this Court.
3. Before the Judge, the Appellant advanced a variety of grave allegations, going beyond false imprisonment simpliciter; indeed those appear to have been his primary contentions. Thus, as recorded in the judgment:

"21. He [i.e., the Appellant] claims damages for false arrest, battery and unlawful detention, and further damages for unlawful search and conversion of goods. Further he claims aggravated and or exemplary damages because he claims that the police acted in an oppressive manner and in bad faith by arresting him and detaining him, when the motivation for doing so was in revenge for his behaviour towards them at the scene. He says the reason given by the police for the arrest and detention was clearly manufactured to make it appear that the arrest was lawful when in fact it was not.

22. Alternatively he claims that even if the police acted in good faith, on any sensible analysis there were no objectively reasonable grounds for his arrest and the police [are] therefore liable to him for false arrest and unlawful detention on that basis. "

4. Suffice to say, that none of the allegations summarised at [21] of the judgment are pursued on the appeal. Allegations of bad faith, oppression and dishonesty have gone. The Appellant's case is now confined to his original fallback alternative case, summarised at [22] of the judgment, namely, a contention that the arresting officer lacked reasonable grounds for suspecting the Appellant of committing an offence under s.2 of the 2006 Act.
5. Drawing the strands together, Mr Williams for the Appellant (who did not appear below) expresses the issue for this Court as follows:

"Whether the learned Judge correctly directed himself on the law when assessing whether the arresting officer had reasonable grounds for suspecting that the Appellant was guilty of the offence for which he was arrested."

THE LEGAL FRAMEWORK

6. There was no or no significant dispute as to the relevant law.
7. A constable has power to arrest without a warrant anyone whom he has reasonable grounds to suspect of committing or having committed an offence: s.24(1)(d) and (2) of the Police and Criminal Evidence Act 1984 ("PACE"). For present purposes, that power is exercisable where the constable has reasonable grounds for believing that it is necessary to arrest the person in question to allow the prompt and effective investigation of the offence or the conduct of that person: PACE, s.24(4) and (5)(e).
8. In a claim for wrongful arrest, such as that advanced here, the first question to be considered is whether the arresting officer suspected that the person arrested was guilty of the offence. That answer depends on the findings of fact as to the officer's state of mind: Clayton & Tomlinson, Civil Actions Against the Police (3^rd edition, 2004), at para. 5-060. There is no dispute on this appeal that the Respondent has satisfied this burden.
9. The second – and critical question here – is whether there was reasonable cause for the officer's suspicion: Clayton & Tomlinson, ibid. This question is objective and for the Trial Judge to determine. The burden rests on the defendant to prove it, to the standard of a balance of probabilities.
10. The test as to "reasonable grounds" was stated by Diplock LJ (as he then was) in Dallison v Caffrey [1965] 1 QB 348, at p. 371:

" ….whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe that there was reasonable or probable cause…."

i.e., "reasonable grounds" for making the arrest. Plainly, those reasonable grounds must extend to all the elements of the offence in question: Mossop v DPP [2003] EWHC 1261 (Admin), at [11].

11. It is to be underlined that the question goes to reasonable grounds for suspicion. As explained by Lord Devlin in Hussien v Chang Fook Kam [1970] 942 (PC), at p.948:

" Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove'. Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end…."

The threshold for the existence of reasonable grounds for suspicion is low: Sir Anthony Clarke MR (as he then was), in Raissi v Comr of Police of Metropolis [2008] EWCA Civ 1237; [2009] QB 564, at [20].

12. As already foreshadowed, the Appellant was arrested on suspicion of committing an offence under s.2 of the 2006 Act, which provides, insofar as material, as follows:

"2 Fraud by false representation

(1) A person is in breach of this section if he –

(a) dishonestly makes a false representation, and

(b) intends by making the representation –

(i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.

(2) A representation is false if –

(a) it is untrue or misleading, and

(b) the person making it knows that it is, or might be, untrue or misleading.

(3) "Representation" means any representation as to fact or law, including a representation as to the state of mind of –

(a) the person making the representation……

…..

(4) A representation may be express or implied.

….."

THE JUDGMENT UNDER APPEAL

13. The Judge began by describing the appearance of the Appellant's stall on the 14^th October, 2009:

"1. ….It is plain from the photographs….that he was campaigning against the kind of commercial testing which harms or kills animals, and against the fur trade in general, as well as supporting vegetarianism and other animal-related causes.

2. He was urging members of the public to sign a petition against cruelty to animals and he was also encouraging such people as he engaged to make contributions to the cause, or causes, by putting money into a collection box which was marked Stop Huntingdon Animal Cruelty."

14. The Judge next (at [3] – [9]) went on to highlight both the importance of protest and political campaigns in a democratic society, together with the harm done by those who collect money from the public, exploiting public generosity for their own gain. As the Judge observed, Middlesbrough Police and Licence Enforcement Officers ("LEOs") were well aware that this "was not a rare feature" of life on their streets in 2009.
15. Against this background, the Judge continued as follows:

"10. It is commonly the case in Middlesbrough that organisations that intend to carry out street collections will inform Middlesbrough Council of their intention so that street wardens and Licence Enforcement Officers will be aware that those activities are being carried out that day. It is not a requirement that a person intending to make a collection obtains a licence but it is an obvious likelihood that a person who is soliciting donations on the street without having made their identity and intentions known to the Council in advance, would be asked to identify themselves and their intentions to some official person.

11. It is also true as a matter of common sense, that a refusal to identify oneself, or refusal to describe the basis upon which contributions are being solicited, might be expected to lead to an escalation of that request, eventually to the police. In circumstances where the police do become involved, it is also a matter of common sense that the behaviour of the person at the scene, when taken with all of the other circumstances, is likely to contribute to the overall picture presented to the police about what they suspect is going on."

16. Initially, as the Judge found (at [12]), the Appellant was uncooperative when approached by two LEOs; there was no legal requirement to supply his name to them and he opted not to do so. In evidence and based on his experience, Mr Hodgson, one of the LEOs, found this suspicious. Mr Hodgson said (at [13]) that the appearance of the stall was similar to a previous charity stall and he became suspicious that the Appellant "…might be representing that he was collecting for animal rights groups when in fact he was not." Mr Hodgson returned to his office to investigate and, thereafter, a Police Community Support Officer ("PCSO") became involved "with no greater success" (at [14]). At about 12.40, PC Ahmed, who was in the vicinity, was asked to investigate.
17. PC Ahmed's own suspicions were "heightened" (at [15]) when the Appellant refused, at first, to identify himself. PC Ahmed's "immediate impression" was that the stall had been set up as a charity stall and he suspected that the Appellant was collecting money by representing himself as a charity.
18. As recorded by the Judge, PC Ahmed's evidence continued to this effect:

"16. He agrees that the Claimant did then identify himself and did say that he was not a charity. The Claimant's response to PC Ahmed's intervention was to say that he 'knew his rights', that he was entitled to be there, that the police had no right to stop him and that he did not have to cooperate with the police if he didn't want to. In light of all the circumstances of the incident, PC Ahmed ….. remained suspicious about what he was told. He….was of the view that even if this was a legitimate organisation, the Claimant might well have been collecting money by representing to the public that the (sic) was a charity in order to make it easier to solicit donations. "

19. PC Ahmed then decided to seek help and guidance from his Inspector (at [17]). He returned to the scene at about 14.00, with Inspector Fernandes and a questionnaire ("the questionnaire") drafted by the Inspector and to be given to members of the public seen in the area who had given money to the Appellant.
20. Pausing there, the questionnaire included the following questions:

" Q. What organisation have you just given money too (sic)?

Q. Is it a charity or is it a business ie people raising money, predominantly for themselves. A profit making business.

Q. Why do you think that?

Q. If it were a profit making business, would you have given your money to it? "

21. The Judge summarised (at [18]) the responses of members of the public to the questionnaire, as recorded by other police officers. "Overwhelmingly" members of the public said that "they believed they were giving to a cause against animal cruelty and some believed that it was a charity because of the layout of the stall". Those who had given money said they would not have done so if they thought it had been a profit-making business.
22. After the questionnaire had been put to several members of the public, the decision was taken to arrest the Appellant: judgment, at [19].
23. The Judge found (at [23]) that the Appellant was a "sincere and committed activist for animal rights"; he had come to Middlesbrough and set up his stall "intending to solicit supporters to his cause and donations…if he could". The Appellant's intentions were honest and the money collected would have gone to the production of further leaflets.
24. The Judge added this "caveat" (at [24]):

"…because I find that his mentality at the time, whether through inexperience or lack of maturity, was to prepare for confrontation and to be quick to confrontation when pressed. ….had there been even a basic level of cooperation by the Claimant when the Licence Enforcement Officers approached him, ….any initial suspicions could have been dispelled and he would have been left alone from then on to continue his peaceful campaigning. However, that is not what happened because the Claimant was confrontational from the start. Possibly because he believed he was about to be moved on but certainly – in my judgment and on his own admission – because he believed that his knowledge of the law was more extensive than theirs and, as he put it, 'he knew his rights'. "

25. The Judge regarded PC Ahmed as an "impressive witness" (at [29]), whose evidence had been given "honestly and accurately". He had honestly believed that the Appellant was purporting to be a charity stall. The reason for leaving the Appellant still operating when PC Ahmed left the scene was to seek the help and guidance of a senior officer.
26. The questionnaire comprised "an honest attempt to fashion a tool" (at [30]) that would assist PC Ahmed to come to a final conclusion as to whether his initial suspicion had been reasonable or not. The questionnaire had been badly drafted; it gave "a closed and ultimately false choice" between a charity and a profit-making organisation, when the Appellant's case was that he was neither of these (but a campaigner instead).
27. The Appellant's case at trial (at [31]) was that no weight should be given to the answers in the questionnaire when reaching a decision as to the reasonableness of PC Ahmed's suspicion, because of the false choice it had posed; the stall was "demonstrably" not a charity because of the campaigning nature of the contents. Conversely, the Respondent's case (at [32]) was that there was a value to the questionnaire, despite its defects, as it went to "whether or not the public thought that they were donating to a charity".
28. The Judge preferred the Respondent's case (at [33]). He also relied on the evidence of Inspector Fernandes, to the effect that, in his experience, the public "were quite forthcoming with their answers regardless of the nature of the questions". The Judge regarded it as significant that "almost everyone" who had been asked and had given an answer, thought that they were giving to a charity.
29. The Respondent submitted that this view chimed with the view of the LEOs and other police officers; all had thought it was a "charitable set-up" (at [34]). The Judge accepted the Respondent's submission that a mistake as to whether the stall was or was not representing a charity was a mistake of fact not a mistake of law. The Respondent further submitted that, if everyone else made that mistake, it had not been unreasonable for PC Ahmed to do so likewise.
30. The Judge then came to these conclusions:

"36. Either unintentionally or by design, there was sufficient about how the stall was set up that was similar to how charity stalls set themselves up. In my judgment PC Ahmed did honestly suspect the Claimant was representing that he was a charity for the purpose of soliciting donations. Further, that suspicion in all of the circumstances….was reasonably held albeit one which turned out to have been mistaken.

37. The fact that the Claimant told him he was not a charity is not determinative. I am satisfied that what was said to him was not ignored and was considered….. The officer is …not bound to believe a protestation of innocence or even a protestation of impossibility. The fact that the Claimant's organisation could not claim charitable status does not mean that he could never have misrepresented himself as a charity to the public….. Moreover in this case….the behaviour of the Claimant up until the time of his arrest increased rather than decreased the suspicion that he may have been involved in criminal wrongdoing.

…..

39. …..the dealings with the Defendant were against a background where it was known that dishonest people have in the past solicited donations on the basis of representations that they are a charity, but have then kept some, most or all of the money….. This is a serious allegation because of the damage such offences do to the public trust and therefore to the prospects of genuine charities. ….. In the circumstances, it is obvious that if PC Ahmed honestly and reasonably believed the Claimant was falsely representing himself to be acting on behalf of a charity, that he also honestly and reasonably suspected the Claimant of dishonesty in relation to his activities. "

31. The Judge was satisfied (at [39]) that PC Ahmed exercised his own discretion to arrest the Appellant; it had not been the decision of Inspector Fernandes. The Judge was further satisfied (at [40]) that the Respondent had proved, to the requisite standard, that PC Ahmed had reasonable grounds for suspecting that the Appellant had committed the offence of fraud by false representation, that he had behaved dishonestly and that it was necessary to arrest him to allow the prompt and effective investigation of the offence and of the Appellant's conduct. The Judge emphasised (at [41]) that little was known of the Appellant and that he had displayed a lack of cooperation with the authorities. Accordingly, if he had not been arrested there was unlikely to be a prompt and effective investigation. The police had not known that the Appellant was only 16 at the time and his "…conduct in setting up the stall, and then his dealings with the police, gave the impression of a person who was older than his years."
32. It followed that the Respondent had proved that the arrest was lawful. Thereafter, having addressed all the various matters then in issue, the Judge dismissed the Appellant's claim.

THE RIVAL CASES ON THE APPEAL

33. For the Appellant, Mr Williams submitted that an arresting officer required an understanding of the offence for which the arrest was made. Here, the basis for PC Ahmed having reasonable grounds for suspecting the Appellant of committing an offence under s.2 of the 2006 Act was undermined or infected by the following failures and errors:

i) A failure to understand that s.2 was a conduct rather than a result based offence.

ii) The questionnaire focused, wrongly, on the reaction of members of the public to the Appellant's activities, hence the results of those activities, rather than the Appellant's conduct; the answers given were thus irrelevant and were not entitled to any weight when reaching a decision as to the reasonableness of PC Ahmed's suspicion.

iii) Moreover, the questionnaire erred by posing a "closed" and false choice between the Appellant being a charity or a profit-making organisation, when the Appellant's case was that he was neither and was instead a political or pressure group campaigner.

iv) This false choice on the part of the questionnaire betrayed a further failure – namely to understand the distinction between political campaigning groups on the one hand and charities on the other; as part of his work, PC Ahmed ought to have understood the difference between charities and campaigns. In this regard, Mr Williams referred us to Picarda, The Law and Practice Relating to Charities (4^th ed.) and authorities such as National Anti-Vivisection League v Inland Revenue Commissioners [1947] AC 31.

34. The Judge had himself erred in holding (at [34]) that PC Ahmed's error in thinking that the Appellant was operating a "charitable set-up" was a mistake of fact; properly analysed, it was a mistake of mixed fact and law.
35. Overall and in the light of these failures and errors, the Judge's findings of fact did not disclose a basis for his conclusion that PC Ahmed had reasonable grounds for suspecting the Appellant of committing an offence under s.2 of the 2006 Act.
36. For the Respondent, Mr Skelt submitted that PC Ahmed's evidence was replete with references showing that he did understand the offence for which he had arrested the Appellant. Any confusion (if confusion there was) between conduct and results did not infect the reasonable basis of suspicion formed by PC Ahmed.
37. As to the questionnaire, its principal significance at trial lay in negating the allegations of bad faith then advanced by the Appellant. In any event, for both PC Ahmed and the Judge, the questionnaire was only a very limited part of the picture as a whole. PC Ahmed was clear as to what he thought; the questionnaire "verified" the views he held.
38. PC Ahmed suspected at the time that the Appellant was masquerading as a charity and that he was keeping the money he had been collecting for himself. This suspicion was reasonably based on PC Ahmed's assessment of the overall picture presented by the stall and the Appellant's conduct. The distinction between charities and campaign groups was difficult enough in itself but, in any event, the evidence showed that it was understood by PC Ahmed. For completeness, it had not been directly put to PC Ahmed in cross-examination that he did not understand that difference. When considering PC Ahmed's decision to arrest, it was to be emphasised, in Mr Skelt's words, that the context was "suspicion territory": i.e., no more was required than reasonable suspicion.

DISCUSSION

39. For my part, I am amply satisfied that the low threshold for reasonable grounds for suspicion (Hussien and Raissi, both supra) has been established by the Respondent. In my judgment, PC Ahmed did have reasonable grounds for suspecting the Appellant of committing an offence under s.2 of the 2006 Act and the Judge correctly directed himself in law in so concluding. My reasons follow.
40. First, in the light of the test as set out in Dallison and Mossop (both supra), I agree with Mr Williams thus far: PC Ahmed needed an understanding of the offence for which he was arresting the Appellant. Thereafter, I part company with Mr Williams, as I am unable to accept his submission that PC Ahmed did not understand the offence under s.2 of the 2006 Act. Both PC Ahmed's contemporaneous witness statement (dated 14^th October, 2009) and his answers in evidence at the trial show plainly his focus on the Appellant's conduct and representations to members of the public. By way of example, that witness statement included the following passage:

" At the time I believed that PROCTOR was representing a charity organisation that promoted animal rights which he was promoting and was also collecting any donated money to help fund the charity."

As is clear from PC Ahmed's evidence, he suspected at the time that the Appellant was masquerading as a charity and was intent on keeping the money for himself: see the Transcript ("T"), at pp. 63 and 65. That PC Ahmed's suspicion turned out to be mistaken does not begin to suggest that he did not understand the offence in question.

41. Secondly, I am not at all persuaded that the questionnaire undermined or infected PC Ahmed's understanding of s.2 of the 2006 Act.

i) Again, I can go some way with Mr Williams. As explained in Smith and Hogan's Criminal Law (14^th ed.), at para. 23.3.1, there has been a change in the law from "result-based" to "conduct-based" liability:

" Under the old law, it had to be proved that D's conduct actually deceived V and caused him to do whatever act was appropriate to the offence charged. Under s2, there is no need to prove: a result of any kind; that the alleged victim or indeed any person believed any representation; that any person acted on a representation; or that D succeeded in making a gain or causing a loss by the representation.

This shift from a result-based to conduct-based offence has numerous other practical implications. The principal aim is to make the offence easier to prove, and there is little doubt that in most cases this objective will be achieved. The effect is that D may be liable for the false representations even where they had no bearing on V. "

It follows that in strict law it was unnecessary for the questionnaire to inquire as to the impact of the Appellant's representation/s on members of the public. However, it does not at all follow that it was unwise of the police to ascertain the views of members of the public in the vicinity; in the circumstances, the questionnaire provided a "reality check" as to the nature of the Appellant's conduct (and see further below). At most, as it seems to me, the police had assumed an unnecessary burden and done more than they needed to do – when they could have confined themselves to the Appellant's conduct - but, insofar as that was an error, it was an error in favour of the Appellant and in no way prejudiced him. As crisply stated in Smith and Hogan (supra), the principal aim of changing the law to conduct-based liability was to make the offence easier to prove.

ii) The answers given by members of the public were not wholly irrelevant. The impression made on them permits an inference to be drawn as to the nature of the Appellant's underlying conduct and representations. By the time PC Ahmed initially left the scene to consult his superiors, he had formed a suspicion as to the Appellant's conduct. The arrest was made later, shortly after 14.00, following the distribution and completion of the questionnaire. On the evidence, the questionnaire reinforced or "verified" PC Ahmed's suspicion. I cannot discern any error of law, flowing from these facts.

iii) In any event, the questionnaire formed only a part of the picture, both for PC Ahmed, as is clear from the totality of his evidence and for the Judge, as is apparent from the judgment.

iv) Still further, as Mr Skelt (who did appear at the trial) indicated to us and as I accept, the principal significance of the questionnaire at trial, lay in it assisting the Respondent to rebut the charge of bad faith then advanced by the Appellant. That context is important in keeping a proper perspective as to the questionnaire.

42. Thirdly, I do not think that the reasonableness of the suspicion formed by PC Ahmed is undermined by a failure to appreciate the difference between a charity and a campaigning group.

i) While the distinction between a charity and a campaign group is clear cut in legal principle, it would be facile to regard the application of that principle to a situation such as that faced by PC Ahmed in this case as straightforward. I would unhesitatingly reject the submission – as did the Judge – that the stall was "demonstrably" not a charity because of the campaigning nature of the contents. To begin with, there are, undeniably, charities whose work takes them close to the dividing line. Moreover, the collection box, clearly shown in the photographs, looked remarkably like a charity collection box – or, at least, it did to me (see further below).

ii) Without seeking to criticise counsel for the Appellant who appeared below, it was never put directly to PC Ahmed that he did not understand the difference between a charity and a campaign group. The cross-examination PC Ahmed did face did not, in my judgment, make good this charge. Thus PC Ahmed's answers made clear that his overall impression was that the stall purported to be charitable; he drew particular attention to the "charity box", which "tipped the edge": T/41-43; 61. It is apparent that PC Ahmed did take into account the Appellant's denial that he was a charity; however, not only was he not bound to accept that denial (as, again, the Judge rightly held) but it did not dispel PC Ahmed's impression that the Appellant was representing himself as a charity. Moreover, it is further apparent from PC Ahmed's evidence that he suspected the Appellant both of masquerading as a charity and of intending to keep the money for himself, whether he was collecting for a charity or a campaign group: T/62-63, 65. Put quite simply, nothing in this evidence betrays a failure to appreciate the relevant distinction, so as to infect the reasonableness of the suspicion formed by PC Ahmed.

iii) As the Judge held, the questionnaire had been badly drafted and gave "a closed and ultimately false choice" between a charity and a profit-making organisation. The questionnaire thus did not address the Appellant's case, which was that he was neither of those but a campaigner instead. This was indeed unfortunate and plainly significantly reduced the weight to be given to any answers to the questionnaire but, for reasons already given, the questionnaire formed a part only of the picture. Realistically considered, this error did not serve to vitiate the decision at which PC Ahmed arrived.

iv) For completeness and in the light of the conclusions to which I have already come, I do not accept that the Judge erred (at [34]) in characterising PC Ahmed's mistake in thinking that this was a charitable set-up as a mistake of fact rather than a mistake of law.

43. Fourthly, in all the circumstances, I am satisfied that there was a reasonable basis for PC Ahmed suspecting the Appellant of committing an offence under s.2 of the 2006 Act. As underlined in the judgment (at [38]), there was a background of dishonest people holding themselves out as collecting for charities to solicit donations. Further, while the Appellant's confrontational stance towards both the LEOs and, to begin with, towards PC Ahmed, could not of itself have furnished reasonable grounds for PC Ahmed's suspicion – civil liberties are not confined to those who behave cooperatively - it cannot be gainsaid that the Appellant's conduct formed part of the overall picture presented to PC Ahmed. The Judge observed, not at all unfairly (at [24]), that even "a basic level of cooperation" on the Appellant's part could have dispelled the LEOs' initial suspicion. As it was, PC Ahmed was faced with a situation where such cooperation had been lacking. Still further and to my mind of the first importance, there was PC Ahmed's overall impression of the stall, reiterated throughout his evidence. In that regard, entirely reasonably in my judgment, the collection box stood out. Notwithstanding the writing on it (see above as to the difficulty in practice of drawing a clear dividing line between charities and campaigns), the collection box closely resembled a charity collection box. It certainly struck me with force as such, both when first seeing the photographs and, thereafter, when revisiting them on a number of occasions.
44. It follows that mistaken though PC Ahmed's suspicion turned out to be, I am satisfied that it was reasonable at the time and I am wholly unable to accept the Appellant's submissions to the contrary. The answer to the issue framed by Mr Williams (at [5] above) is "yes". I would dismiss the appeal.

Lord Justice Simon :

45. I agree.