Angel Copeland v Metropolitan Police
The burden lay with the police to prove that an allegation of assault made by a police officer had not been deliberately falsified.
In a claim for assault, false imprisonment and malicious prosecution, the trial judge had correctly directed the jury that the burden lay with the police to prove that an allegation of assault made by a police officer against Ms Copeland (C), leading to her arrest, had not been deliberately falsified.
C attended Bromley Police Station to act as an appropriate adult in respect of her teenage son. While waiting in the custody suite her mobile phone rang and she was told by PC Bains to switch it off. She did so. While the custody sergeant, PS Constable, was reading her son his rights, another of C’s mobile phones started to ring. PS Constable warned her that if she did not turn the phone off she would be removed from the custody suite. She responded that she was trying to but the officers believed she was refusing to do as she was told. PS Constable instructed PC Bains and PC Davenport to remove her.
PC Davenport took hold of C’s arm. At that moment, C’s son intervened. PC Davenport and another officer dealt with him and PC Bains took hold of C in order to separate them.
The CCTV footage showed C acting in an obstructive manner. She was swinging her arms around as she moved away from PC Bains. It was at that stage that PC Bains alleged C hit him twice. The CCTV footage did not show the alleged strikes, but it did show PC Bains’ head recoiling.
There was then a short conversation between PS Constable and PC Bains, during which C alleged the story was been made up that she had punched PC Bains.
PC Bains then went into the response room and asked whether anyone was free to carry out an arrest. He told PC Derbyshire he had been hit twice on the right side of his face by C. PC Derbyshire gave evidence that she had seen red marks on this part of his face. She attended the custody suite and arrested C for assault causing actual bodily harm. PC Bains was later examined by a FME who noted redness with swelling under his right eye.
C was released on police bail. When she answered bail she was charged with assaulting PC Bains in the execution of his duty. She was convicted at the Magistrates’ Court but successfully appealed. CPS counsel had reviewed the CCTV footage of the incident and decided that there was insufficient evidence.
The trial of her civil claim before Hickinbottom J and a jury resulted in an award of £25,200.00 for assault, false imprisonment, and malicious prosecution, including aggravated and exemplary damages. The Commissioner appealed on the basis that the judge had misdirected the jury in relation to two of six questions and that the jury’s verdict was perverse and against the weight of the evidence.
Court of Appeal
The burden of proof that PC Bains had lied
The jury was asked: Has the Commissioner proved (ie that it is more likely than not) that PC Bains did not deliberately fabricate the allegation he made to PC Derbyshire that Ms Copeland had hit him in the face?
The Commissioner argued that C, the person making the allegation, should bear the burden.
Moses LJ noted that the arresting officer, PC Derbyshire, had not witnessed the incident and was entirely dependent on what PC Bains told her. The well-known test in Castorina v The Chief Constable of Surrey  LGR 241 was noted but the court found that the state of mind of the arresting officer and her suspicion that C was guilty of the offence was not relevant in this case. This was because PC Derbyshire’s state of mind was entirely governed by what she was told by PC Bains. So if PC Bains had deliberately lied, C’s arrest based on PC Bains’ allegation and nothing else was unlawful. Where an arrest was procured by somebody who had deliberately lied and procured or deliberately encouraged an arrest then the arrest was unlawful. The question was whether the Commissioner had been the "instigator, promoter and active inciter for the action" (see Davidson v Chief Constable of North Wales  All ER 597).
It was for the Commissioner to prove that the arrest was lawful. He could not do so unless he established that PC Bains was acting in good faith in requesting PC Derbyshire to arrest C. The legality of the arrest turned on the legality of the actions of PC Bains, and in turn the Commissioner.
Were the jury’s verdicts perverse and against the weight of the evidence?
The court expressed considerable unease about the outcome in this case, not least the award of aggravated and exemplary damages. Moses LJ observed that "the very provenance" of the claim caused him concern and was critical of the CPS decision to abandon the prosecution as ‘feeble’. But, exercising extreme caution, the court was not prepared on principle to interfere with the jury’s decisions on questions of fact.
This case appears to re-write established principles by which the lawfulness or otherwise of an arrest is analysed by the state of mind of the arresting officer. In this case, there could be no real doubt that PC Derbyshire acted lawfully but PC Bains’ lies (as the jury found) undermined everything that followed.
It is not entirely clear why the Commissioner’s argument that the correct method of attack should have been a claim for malicious procurement of the arrest by PC Bains was rejected. Of course, the Commissioner would have been liable in that instance on the strength of the jury’s findings but the basis would perhaps have been more comprehensible.
The appeal also looked at issues pertaining to malicious prosecution and the input of the CPS. Readers are advised to refer to the full transcript for detailed analysis.
Finally, as the court observed, the potential ramifications for PC Bains’ career as a police officer are dramatic and probably fatal. Although the jury’s decisions had to be left undisturbed, to the extent that the CPS’s ‘feeble reason’ for abandoning the prosecution set in train the civil claim that followed, then perhaps greater focus on such decisions is called for.