ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Stuart-Smith
Strand, London, WC2A 2LL
B e f o r e :
(SIR BRIAN LEVESON)
LADY JUSTICE HALLETT D.B.E.
THE SENIOR PRESIDENT OF TRIBUNALS
(SIR ERNEST RYDER)
| MICHAEL CIARAN PARKER
|- and -
|THE CHIEF CONSTABLE OF ESSEX POLICE
for the Chief Constable of Essex Police
Hugh Tomlinson QC and Lorna Skinner (instructed by McAlinneys Solicitors)
for Mr Parker
Hearing dates : 20-21 November 2018
Crown Copyright ©
Sir Brian Leveson P :
"It identified [Mr Parker] as a possible suspect based upon suggestions that he might be sexually aggressive, had drunk significantly and was believed to have taken cannabis and cocaine and because his version of events differed from that of others. It also identified a time when [Mr Parker] left his bedroom to fetch swimming shorts as the last known opportunity before Mr Lubbock was found in the pool. There was no evidence at any stage of [Mr Parker] being seen in the vicinity of the pool at any material time."
"…there was the initial revisit of witnesses. Then there was the building of the case. Then we progressed through to a stage where all the suspects were looked at and each individual team did a presentation. I think it's fair that we could have [had] a look at it at that stage."
Stuart-Smith J stated that this was an accurate reflection of the state of the investigation in May 2007 but concluded that the police had lost sight of the inherent weakness of the evidence and the need to pursue it further if any weight was to be attached to it at all. Without further action, the judge did not consider that this was information upon which it was reasonable to rely as contributing to grounds justifying arrest.
The Arrest Plan
"(A1) Did the arresting officer suspect that an offence had been committed? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.
(A2) Assuming the officer had the necessary suspicion, did the arresting officer have reasonable grounds for that suspicion? This is a purely objective requirement to be determined by the Court.
(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 as to the officer's state of mind.
(2) Assuming the officer had the necessary suspicion, did the arresting officer have reasonable grounds for that suspicion? This is a purely objective requirement to be determined by the judge if necessary on facts found by a jury.
(2A) Did the arresting officer believe that for any of the reasons mentioned in [s. 24(5) of the 1984 Act] it was necessary to arrest the person in question? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.
(2B) Assuming the officer had the necessary belief, were there reasonable grounds for that belief? 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 questions is in the affirmative, then the officer has a discretion which entitles 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 by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223."
"50. It is not enough for a Defendant in the position of the Secretary of State in Lumba or the Defendant in the present case to show that the counterfactual could have resulted in the same outcome as had been caused by the tort: the Defendant must go on to show that it would have done so. This is the basis of the decision in Lumba, is accepted by the Defendant in its formulation of the issue in its pleaded case, is incorporated in the formulation of the present preliminary issue and explains the result in Kambadzi…
51. The principles set out in Lumba lead to an award of nominal damages if no loss has been suffered because the results of the counterfactual are the same as the events that happened. If and to the extent that they diverge (e.g. because a lawful arrest would not have occurred at the time but would have occurred later) the Court will have to decide on normal tortious compensatory principles whether and to what extent a substantial award of damages is merited for the divergence in outcome.
52. What is the appropriate counterfactual in a given case will be acutely fact-sensitive…Where the tortious conduct is the arrest of an individual by a police officer whose state of mind does not satisfy the requirements of s. 24 of [the 1984 Act], the counterfactuals can in theory include (a) that the individual would not be arrested, or (b) that the individual would be arrested (either at the same time as the actual arrest or at some other time) by an arresting officer whose state of mind satisfies the requirements of s. 24 of [the 1984 Act] or (c) that the individual would be arrested (either at the same time as the actual arrest or at some other time) by another officer whose state of mind does not satisfy the requirements of s. 24 of [the 1984 Act]. Which of these alternatives applies will be the subject of a finding of fact on the basis of the evidence before the Court in the individual case."
Could Mr Parker lawfully have been arrested?
i) The reference to the hairbrush corroborated an unlawful assault but not that Mr Parker was involved.
ii) Evidence of injury to Mr Parker's penis was unreliable.
iii) Mr Futers' evidence was relevant to a desire to seek a sexual encounter and not to commit rape or murder. Similarly, his evidence that Mr Parker had tried to place cocaine on Mr Lubbock's gums was evidence of illegal or "risky" behaviour but did not contribute to a reasonable suspicion of the relevant offences.
iv) Mr Kelleher's evidence of pestering Mr Lubbock for sex and the fracas on being told that he was heterosexual was subject to weaknesses and there was a lack of evidence of any continued inclination to sexual contact with Mr Lubbock after the fracas.
v) The Windows of Opportunity reports provided evidence that Mr Parker could have had the opportunity to assault Mr Lubbock and Det. Supt. Wilson was entitled to take them into account.
vi) The bad character evidence was "thoroughly misleading" such that it was unreasonable to rely on it.
vii) The evidence of Mr Parker's ex-chauffeur describing his penchant for prostitutes, drugs and alcohol elided "risky" conduct with that demonstrating a propensity to violent sexual conduct.
viii) Dr Cary's evidence was important and on its own provided reasonable grounds for suspicion that a serious criminal offence had been committed but did not link Mr Parker to the injuries.
ix) Although it was claimed that Mr Parker's evidence, given over the years, was incomplete and inconsistent, it was a fact that he had never made a material admission.
i) Both officers suspected that the offences of rape and murder had been committed, as was demonstrated by their evidence.
ii) Their suspicion was reasonable on the basis of the evidence he had already set out.
iii) Both suspected that Mr Parker was guilty of the offences of rape and/or murder, as was demonstrated by their evidence.
iv) Their suspicion of Mr Parker was reasonable (although he described the evidence on this question as "more finely balanced"). In so holding he had regard to the statutory threshold having been interpreted as low, and the fact that despite the weaknesses in the evidence Mr Parker was one of a closed group of people who could have committed the assault.
v) Both believed that it was necessary to arrest Mr Parker to allow prompt and effective investigation (s. 24(5)(e) of the 1984 Act), as was demonstrated by their evidence.
vi) Their belief as to necessity was reasonable. There was "considerable force" in the submission that Mr Parker had cooperated with police, and he could have been arrested with "no grounds for complaint" if he changed this behaviour. However, he was persuaded of the operational arguments, having regard to the need to co-ordinate interviews and (in relation to Det. Supt. Wilson) to implement covert surveillance.
Would Mr Parker have been lawfully arrested?
i) Stuart-Smith J failed to ask whether Mr Parker could and would have been detained, had the Chief Constable by his officers acted lawfully. This is the question which the court is required to ask by the decisions in Lumba, Kambadzi and Bostridge.
ii) Stuart-Smith J constructed the wrong counterfactual scenario, namely what the position would have been had P.C. Cootes not performed an arrest at all.
iii) As to Stuart-Smith J's suggestion that limiting the claimant's entitlement to nominal damages would undermine the constitutional protection of the O'Hara principle, there is a strong public interest in applying the Lumba principle to situations where an officer could lawfully have arrested a suspect but for the unlawful arrest by another.
The Lumba challenge
"The question here is simply whether, on the hypothesis under consideration, the victims of the false imprisonment have suffered any loss which should be compensated in more than nominal damages. Exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused. If the power to detain had been exercised by the application of lawful policies, and on the assumption that the Hardial Singh principles had been properly applied…it is inevitable that the appellants would have been detained. In short, they suffered no loss or damage as a result of the unlawful exercise of the power to detain. They should receive no more than nominal damages [emphasis added]."
"The appellants are, however, only entitled to nominal damages because, if the Secretary of State had acted lawfully and applied her published policy, it is inevitable that both appellants would have been detained [emphasis added]."
"I believe that a distinction is clearly merited between those cases where it is plain that the detainees would have been released and those where it can be shown that they would have been lawfully detained, had the correct procedures been followed [emphasis from original quote]."
"…for the reasons given by Lord Walker and Baroness Hale JJSC, I would hold that the breach of the appellants' fundamental rights that has occurred in these cases should not be marked by an award only of nominal damages. An award on ordinary compensatory principles is, of course, out of the question. It is plain that the appellants would not have had any prospect of being released from detention if the Secretary of State had acted lawfully. So they cannot point to any quantifiable loss or damage which requires to be compensated. But the conduct of the officials in this case amounted, as Lord Walker JSC says (see para 194, below), to a serious abuse of power and it was deplorable [emphasis added]."
"Apart from cases concerned with constitutional rights in the Caribbean, (the line of authority starts with Attorney General of St Christopher, Nevis and Anguilla v Reynolds  AC 637, the common law has always recognised that an award of more than nominal damages should be made to vindicate an assault on an individual's person or reputation, even if the claimant can prove no special damage…In these appeals, each claimant had a very bad criminal record and would undoubtedly have been kept in custody under the Secretary of State's published policies. They cannot therefore establish a claim to special damages. But the argument on causation does not completely defeat their claims."
"As for the question of damages, the decision on this point in Lumba was that the appellants were entitled to no more than nominal damages as their detention was at all times justifiable. But this cannot be assumed to be so in every case, and in this case the facts have still to be established. So I would not foreclose entirely the possibility that the appellant in this case is entitled to more than a purely nominal award."
"False imprisonment is a trespass to the person and therefore actionable per se, without proof of loss or damage. But that does not affect the principle that the defendant is only liable to pay substantial damages for the loss and damage which his wrongful act has caused. The amount of compensation to which a person is entitled must be affected by whether he would have suffered the loss and damage had things been done as they should have been done."
"As the majority in Lumba also held, however, causation is relevant to the question of the recoverability of damages. For the reasons that I gave in my judgment in that case, I consider that if it can be shown that the claimant would not have been released if a proper review had been carried out, this must have an impact on the quantum of compensation and that nominal damages only will be recoverable."
Therefore a majority in Kambadzi affirmed the authority in Lumba. It was necessary to examine what would have happened had "things been done as they should have been done", "had a proper review been carried out".
"20. … The tort of false imprisonment is compensated in the same way as other torts such as to put the claimant in the position he would have been in had the tort not been committed. Thus if the position is that, had the tort not been committed, the claimant would in fact have been in exactly the same position, he will not normally be entitled to anything more than nominal damages. The identity of the route by which this same result might have been achieved is unlikely to be significant.
21. The majority of the Justices in Lumba make it clear that nothing more than nominal damages can be awarded where the claimant would have been detained anyway. Paragraph 93 of Lord Dyson's judgment (cited above) shows that a detainee who would have remained in detention had the proper procedures been followed (and had no tort been committed) "has suffered no loss because he would have remained in detention whether the tort was committed or not". Lords Phillips and Collins agreed with Lord Dyson as to nominal damages (paragraphs 335 and 237). Lord Kerr was to a similar effect at paragraph 253 where he said: "I believe that a distinction is clearly merited between those cases where it is plain that the detainees would have been released and those where it can be shown that they would have been lawfully detained, had the correct procedures been followed" (original emphasis). None of these Justices is making a distinction between situations in which the power to detain is held by the defendant and situations where third parties would have effected the detention. Lords Brown and Rodger agreed that it would be wrong to award substantial compensation (paragraphs 342 and 361). Lady Hale was not in the majority on the question of nominal damages, so it is hard for Mr Drabble to draw support from what she said (see paragraphs 210-13)."
i) It was known from the outset that Mr Parker was one of a small number of people capable of committing the offences.
ii) No police officer ever considered that this on its own constituted reasonable grounds to suspect.
iii) Several lengthy investigations failed to obtain any evidence directly implicating Mr Parker; the re-investigation had failed to identify any new grounds for suspecting Mr Parker.
iv) The 'bad character' evidence which made Mr Parker a suspect was not capable of providing reasonable grounds to suspect (as the judge held).
i) The evidence of the taxi driver that Mr Parker was seeking a sexual encounter was logically probative.
ii) The evidence of Mr Parker pestering Mr Lubbock for sex was logically probative, especially as he made approaches towards two heterosexual men (Mr Lubbock and Mr Futers).
iii) Mr Parker offered his guests alcohol and cocaine and there was evidence that he placed cocaine on Mr Lubbock's gums. According to Dr Cary, Mr Lubbock's consumption of alcohol and drugs would have rendered him unable to properly perceive pain.
iv) The comment regarding the hairbrush appeared to have come from Mr Parker, as no other guest had any connection to Ms Davis.
v) Mr Parker left the scene after the body was found and then departed to a distant clinic; this demonstrates an attempt to evade the police.
vi) The attendance of Mr Parker's personal assistant after the removal of the body and prior to the anal injuries being discovered coincided with the disappearance of the poolside thermometer.
vii) The evidence regarding an injury to Mr Parker's penis had obvious flaws but could still support a reasonable suspicion; O'Hara confirms that information giving rise to reasonable grounds may turn out to be wrong but nonetheless be reliable at the time of arrest.
viii) Mr Parker's interview with Piers Morgan in which he mentioned that he knew of others who were hiding information demonstrated that there was information which Mr Parker had not disclosed to police.
i) Mr Lubbock, a guest at Mr Parker's home, suffered a violent assault at about the time of his death and a third party was involved.
ii) Mr Parker was one of only three men who could have committed the assault.
iii) A pool thermometer that may have been the cause of Mr Lubbock's injuries went missing and Mr Parker's assistant was present at the scene "tidying up" during the relevant time.
iv) Mr Parker had expressed a significant interest in having sexual intercourse and had made advances to heterosexual men (including Mr Lubbock) that night.
v) Mr Parker provided Mr Lubbock with drugs on the night of his death.
Was an arrest necessary
"2.7 …the circumstances that may satisfy those criteria remain a matter for the operational discretion of individual officers.
2.8 In considering the individual circumstances, the constable must take into account the situation of the victim, the nature of the offence, the circumstances of the suspect and the needs of the investigative process."
"(i) Where there are reasonable grounds to believe that the person:
- has made false statements;
- has made statements which cannot be readily verified;
- has presented false evidence;
- may steal or destroy evidence;
- may make contact with co-suspects or conspirators;
- may intimidate or threaten or make contact with witnesses;
- where it is necessary to obtain evidence by questioning; or
(ii) when considering arrest in connection with an indictable offence, there is a need to:
- enter and search any premises occupied or controlled by a person;
- search the person;
- prevent contact with others;
- take fingerprints, footwear impressions, samples or photographs of the suspect;
(iii) ensuring compliance with statutory drug testing requirements."
"34 …The relevance of the thought process is not that a self-direction on all material matters and all possible alternatives is a precondition to legality of arrest. Rather it is that the officer who has given no thought to alternatives to arrest is exposed to the plain risk of being found by a court to have had, objectively, no reasonable grounds for his belief that arrest was necessary…
40 …To require of a policeman that he pass through particular thought processes each time he considers an arrest, and in all circumstances no matter what urgency or danger may attend the decision, and to subject that decision to the test of whether he has considered every material matter and excluded every immaterial matter, is to impose an unrealistic and unattainable burden…"
"I should add that we have not been concerned in the present case with the position of an arresting officer who, often in a complex inquiry, receives an order to arrest a particular suspect. Such an officer will often not have access to all the material which the officers directing the inquiry will have. The decision to arrest, and to do so at a particular time, will often be part of a closely co-ordinated plan for the inquiry. I pause only to say that it is clear from the O'Hara case that this common situation is readily accommodated within the rules as I have set them out to be. The arresting officer must himself have reasonable grounds for believing that the suspect has committed an offence, and likewise reasonable grounds for believing that it is necessary, for a section 24(5) reason or reasons, to arrest him. But information given by others, attached to orders issued by them, can be and usually will be part of the information which goes to his grounds for belief of one or both matters, and thus to the reasonableness of the belief. That that is the law provides another reason why section 24(4) ought to be interpreted in the manner stated, rather than as requiring comprehensive consideration by the officer of all matters capable of being relevant to the decision, which would require him to have access to, and time to digest, a much fuller picture of the overall investigation than is realistic."
i) The suspects had previously been interviewed at length and could have colluded at any time, but there was no evidence of them having done so.
ii) There was no proper new evidence to put to the suspects, hence there was no new matter on which they could have colluded.
iii) Therefore, any collusion would already have taken place.
Lady Justice Hallett :
Sir Ernest Ryder SPT :