A question of cause and effect

The Court of Appeal agreed that there had been reasonable grounds to suspect the celebrity entertainer; Michael Barrymore.

Parker v The Chief Constable of Essex Police Court of Appeal (Sir Brian Leveson PQBD, Hallett LJ, Sir Ernest Ryder SPT) [2018] EWCA 2788 (Civ)

Executive summary

In a case brought by the celebrity entertainer known as Michael Barrymore, the Court of Appeal agreed that there had been reasonable grounds to suspect the claimant and that it was necessary to arrest him. Although the arrest had been carried out unlawfully, had the arrest been carried out as it should have been, a lawful arrest would have been made. As a result, the claimant was entitled only to nominal damages.

Background

In March 2001, following an ‘alcohol and drug fuelled gathering’ at the claimant’s home, one of his guests was found unconscious and not breathing in the swimming pool. He was pronounced dead at hospital.

Following protracted investigation and re-investigation, the police concluded that the claimant and two others were suspects. It was decided by the senior investigating officer, D Supt Wilson, to arrest them simultaneously in June 2007. The claimant’s arrest was to be carried out by DC Jenkins, who had played a central role in the investigation, knew the evidence and believed she had reasonable grounds. She also believed the arrest was necessary to conduct a prompt and effective investigation. On the day, DC Jenkins became detained in traffic and so a surveillance officer (PC Cootes) was ordered to make the arrest, which he did.

The claimant commenced proceedings for substantial damages, including damage to his career, which he said was re-establishing itself after initial adverse publicity following the death. After initially arguing the arrest was lawful, Essex Police then conceded that the claimant had been falsely imprisoned on the basis that the arresting officer had arrested to order, without personally having reasonable grounds or suspicion to justify the arrest. However, the police argued that the claimant was entitled only to nominal damages because he could have been lawfully arrested by DC Jenkins.

At first instance, Stuart-Smith J held that DC Jenkins could have arrested the claimant lawfully but dismissed the argument on nominal damages. That was on the basis that even if PC Cootes had not carried out the arrest, the claimant would still have been unlawfully arrested by one of the other surveillance officers present, all of whom similarly lacked the requisite information to form a reasonable belief.

The police appealed in relation to nominal damages. The claimant cross-appealed on the basis that there were in fact no reasonable grounds for arrest and the arrest was unnecessary.

The appeal

Nominal damages

Sir Brian Leveson PBQD considered the leading cases of R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, and its subsequent analysis in the further Supreme Court decision in R (Kambadzi) v Secretary of State of the Home Department [2011] UKSC 23 and in the Court of Appeal in Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79 (see Weightmans’ previous legal update).

Stuart-Smith J had dismissed arguments that the Lumba principle led to an entitlement only to nominal damages. The judge had based his decision on the correct ‘counterfactual scenario’ deriving from the wrongful arrest by PC Cootes not having taken place.

Following analysis of the leading decisions, Sir Brian Leveson concluded at paragraph 104 –

The test therefore is not what would, in fact, have happened had PC Cootes not arrested Mr Parker but what would have happened had it been appreciated what the law required. To Stuart-Smith J this appeared circular: to assume lawfulness was to assume what was sought to be proved. However, the counterfactual scenario envisaged by Lord Dyson and the accompanying majority in Lumba did not require the court to assume the lawfulness of the substantive detention. It required the court to assume the lawfulness of the procedure whereby the detention was effected. Lying behind the decision in Lumba therefore is the principle that although procedural failings are lamentable and render detention unlawful, they do not, of themselves, merit substantial damages.”

That analysis in turn led to the following conclusion at paragraph 107 –

In this case, the substantive requirements (that of compliance with s. 24 of [PACE]) depended on the facts as found by the judge as to the state of mind of Det. Supt. Wilson or Det. Con. Jenkins. The procedural requirement (the O’Hara obligation that the arresting officer personally has reasonable cause etc) would have been followed had either appreciated what was required. The fact that there was no evidence about what would have happened is not to the point: in my judgment it is clear that if either had been alert to the O’Hara obligations, either the arrest would have awaited Det. Con. Jenkins or she would have sufficiently briefed PC Cootes (or another officer present at the scene).

On that basis, no harm had been caused and substantial damages were inappropriate, and the judge had been wrong to so find. As the court said – “That is not to encourage sloppy practice but, rather, to reflect actual loss.” - paragraph 108 

Reasonable cause

The claimant argued that even D Supt Wilson or DC Jenkins could not have possessed reasonable grounds to suspect or a reasonable belief in the necessity to arrest. At paragraph 115, Sir Brian Leveson summarised the relevant legal principles -

“The bar for reasonable cause to suspect as set out in s. 24 (2) of [PACE] is a low one. It is lower than a prima facie case and far less than the evidence required to convict… Further, prima facie proof consists of admissible evidence, while suspicion may take account of matters that could not be put in evidence…. Suspicion may be based on assertions that turn out to be wrong… The factors in the mind of the arresting officer fall to be considered cumulatively…”

The correct approach was not to over-compartmentalise the evidence and consider it piece by piece, but to weight its cumulative effect. The court concluded that even when various pieces of evidence attacked as flawed were stripped out, the fact that the deceased had suffered a severe assault (probably anal rape) and that the claimant was one of only three men who could have been responsible, was itself enough to provide reasonable grounds for arrest.

Necessity

Following the Court of Appeal’s decision in Hayes v The Chief Constable of Merseyside Police [2011] EWCA Civ 911, what is required for necessity is actual belief that an arrest is necessary and, objectively, that such belief is reasonable.

The necessity criterion relied on was to conduct a prompt and effective investigation. The evidence from the police was that that the simultaneous arrest of all three suspects was necessary to create a breakthrough, previous interviews having generated little. Although there was no evidence of past collusion between the witnesses, that did not mean there was no risk of future collusion.

Further, the arrest involved arresting the claimant for the first time and changed the basis on which the investigation was to proceed. The court regarded that change of circumstances as sufficient to raise a serious question about whether the claimant would continue to cooperate. The police were reasonably entitled to conclude that arrest was necessary.

Comments

This is a case of considerable significance in the field of false imprisonment. Even where an imprisonment is false, if the appropriate ‘counterfactual scenario’ suggests that a lawful arrest could and would have been made had shortcomings been identified and addressed, then only nominal damages will flow.

As the court pointed out, that is a consequence of focusing on the loss in such a case, rather than any desire to encourage ‘lamentable’ procedural failings or ‘sloppy practice’.

If you have any questions or would like to know more about our update, please contact Nick Peel, Partner, on 0151 242 9453, or nick.peel@weightmans.com.

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