West Law Report

ADORIAN v COMMISSIONER OF POLICE OF THE METROPOLIS

Posted in Assault, Criminal Justice Act, Police powers and duties, Westlaw Reports by mrkooenglish on June 4, 2008

Last Updated: 3:18PM BST 04/06/2008
Queen’s Bench Division Owen J May 19, 2008
Claims – Interpretation – Police officers – Procedural irregularity – Trespass to the person – Meaning of s. 329(2) Criminal Justice Act 2003 – Requirement to obtain court’s permission to bring civil proceedings – s. 329(2) Criminal Justice Act 2003

FACTS

The defendant Commissioner of Police (D) applied to strike out a claim for damages for assault on the ground that the claimant (C) had failed to obtain the court’s permission to issue proceedings in accordance with the Criminal Justice Act 2003 s. 329(2). C had been arrested and was subsequently found guilty of obstructing police officers in the execution of their duty. Following his arrest, C was found to have sustained a complex injury involving fractures to the head of his right femur. C contended that the injuries were sustained in the course of his arrest and issued a claim for damages for assault. D submitted that s. 329(2) gave rise to a mandatory requirement to obtain the court’s permission before the issue of proceedings and that a failure to do so rendered the proceedings a nullity in their entirety. C submitted that the court could entertain a subsequent application for permission and permission should be granted.

ISSUE

Whether s. 329(2) gave rise to a mandatory requirement to obtain the court’s permission before the issue of proceedings and that a failure to do so rendered the proceedings a nullity in their entirety.

HELD (judgment accordingly)

(1) A failure to comply with s. 329(2) did not render the proceedings a nullity, but amounted to a procedural irregularity that could be cured by a subsequent application at the discretion of the court, Rendall v Blair (1890) LR 45 Ch D 139 CA and Re Saunders (A Bankrupt) [1997] Ch 60 Ch D applied. There were a number of reasons for that conclusion. Firstly, recourse to the courts was not to be excluded except by clear words. Secondly, there was no legislative history from which it was clear that Parliament intended compliance to be mandatory, Seal v Chief Constable of South Wales [2007] UKHL 31, [2007] 1 WLR 1910 distinguished. Thirdly, to construe s. 329(2) as a mandatory requirement would have the effect of defeating other causes of action brought in the proceedings, which would be restrictive. Fourthly, the protection for a prospective defendant provided by the section was not lost by treating prior permission as a procedural requirement. A defendant would be able to apply to the court to have the proceedings struck out if proceedings were commenced without prior permission.

(2) C sustained extremely serious injuries in the course of his arrest. It would be plainly open to a court to conclude that the force used in the restraining of C in the course of his arrest was grossly disproportionate. C therefore satisfied the test in s. 329(3). Justice required that C’s claim that such injuries as were sustained by trespass to the person or negligence or both should be determined by the court.

Phillippa Kaufmann (instructed by Bhatt Murphy) for the claimant. P Stagg (instructed by in-house solicitor) for the defendant.

MCMILLAN v CROWN PROSECUTION SERVICE

Posted in Assault, Police powers and duties, Westlaw Reports by mrkooenglish on May 23, 2008

Last Updated: 11:26AM BST 22/05/2008
Divisional Court

Maurice Kay LJ, Penry-Davey J

May 12, 2008 (Filed: May 22, 2008)

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Assault – Drunk and disorderly – Police officers – Arresting police officer escorting drunken person from private garden – Actions acceptable in ordinary conduct of daily life – s. 5 Public Order Act 1986

FACTS

The appellant (M) appealed by way of case stated against a decision of a magistrates’ court to convict her of the offence of being drunk and disorderly in a public place. Police officers had found M on the street in a drunken state, warned her about her behaviour and advised her to go home. The officers later found M in the garden of her daughter’s house shouting and swearing at the front door. One of the officers (S) advised her to leave but M continued to shout and swear. S then took M by the arm and escorted her down a set of steps from the garden and onto a public footpath. M shouted at and argued with S and was arrested. The lawfulness of S’s actions in physically leading M from the garden to the footpath was considered at trial. The magistrates held that there had been no assault, and convicted M of the offence charged. The principal question posed for the consideration of the High Court was whether the magistrates were correct to find that there had been no assault. M submitted that from the moment S took her by the arm, he was in law assaulting her, and her disorderly behaviour was the behaviour of someone who was the victim of a continuing assault against which she was entitled to protest.

ISSUE

Whether the magistrates were correct to find that there had been no assault.

HELD (appeal dismissed)

The question was whether the magistrates were entitled to hold that S, by taking M by the arm, had been acting within the bounds of what was generally acceptable in the ordinary conduct of daily life, Collins v Wilcock [1984] 1 WLR 1172 DC applied. Common sense compelled that they were so entitled. The magistrates were plainly satisfied that S had made the pragmatic decision not to arrest M in the garden, perhaps for an offence under the Public Order Act 1986 s. 5, preferring instead a negotiated conclusion which would be in M’s interests. The magistrates found that S had taken M by the arm to escort her out of the garden so he could speak to her in the street, and they rejected any suggestion that she was removed to a public place so as to justify an arrest for an offence with a public place requirement. In acting as he did, S, who had had in mind the steepness of the steps and had wanted to steady her for her own safety, could properly be said to have acted in conformity with generally acceptable standards of conduct.

Quincy Whitaker (instructed by Ben Hoare Bell, Sunderland) for the appellant. Robert Spragg (instructed by Crown Prosecution Service) for the respondent.

Restraint without arrest was assault

Posted in Assault, Police powers and duties, Times Law Report by mrkooenglish on May 23, 2008

From The TimesMay 23, 2008

Restraint without arrest was assault
Queen’s Bench Divisional Court
Published May 23, 2008
Wood v Director of Public Prosecutions
Before Lord Justice Latham and Mr Justice Underhill
Judgment May 14, 2008

Where a police officer restrained a person, but did not at that time intend or purport to arrest him, he was committing an assault, even if an arrest would have been justified.

The Queen’s Bench Divisional Court so held when allowing an appeal by way of case stated from the dismissal by Luton Crown Court (Judge Bevan, QC and justices) of the appeal by Fraser Wood against his conviction by Stevenage Justices for offences of assaulting police officers in the execution of their duty, and of threatening behaviour contrary to section 4 of the Public Order Act 1986.

The police officers had attended an incident acting on reports that a man called “Fraser”, who had a police record for violent behaviour but was unknown to the officers themselves, had behaved in a disruptive manner. When the defendant appeared one of the officers had taken hold of him by the arm and asked whether he was Fraser.

The second officer had taken hold of him when he denied that was his name, although at the time he was being addressed as “Fraser” by some of his companions. The defendant’s ensuing struggle with the officers had given rise to the charges and convictions.

The crown court, dismissing the defendant’s appeal, had held that the first officer had reasonable grounds to suspect the man in front of them had committed an arrestable offence and to detain him, although it was not until a later point that the officer’s suspicion had crystallised into certainty that he was indeed Fraser Wood, the man he had come to arrest. The court was therefore satisfied that the actions of the first officer and those following him were lawful and the defendant was guilty of the offences charged.

In the case stated, two questions were asked: (i) Was the court right to conclude that the officers were acting in the execution of their duty? (ii) Must a police officer, when exercising a power of arrest, intend to exercise that power of arrest and believe that he did have the power to arrest?

Mr Timothy Bowden for Fraser Wood; Mr Patrick Fields, solicitor, for the Director of Public Prosecutions.

LORD JUSTICE LATHAM said that it was unfortunate that there were no findings by the crown court as to what the two officers intended or said at the time.

The distinction made by the officer in his evidence between detaining the defendant and arresting him was not a question of se-mantics. The officer did not intend or purport to arrest the defendant when he restrained him and at no stage before the defendant struggled to free himself did he assert that he was arresting the defendant.

As was the case in Kenlin v Gardiner ([1967] 2 QB 510), the officer had committed a technical assault. Accordingly the defendant’s appeal was allowed and his convictions quashed.

Mr Justice Underhill agreed.

Solicitors: Hegarty LLP, Peterborough; Crown Prosecution Service, Luton.

Difference in civil and criminal self-defence

Posted in Assault, Battery, House of Lords (case), Self-defence, Times Law Report by mrkooenglish on May 4, 2008

House of Lords

Published April 24, 2008

Ashley and Another v Chief Constable of Sussex Police

Before Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell and Lord Neuberger of Abbotsbury

Speeches April 23, 2008

A civil claim against the police for assault and battery by the family of an unarmed man shot dead during a police raid was not to be struck out despite the responsible officer’s acquittal of murder because, in civil law, a plea of mistaken self-defence required not only that the assailant’s mistaken belief that he had been under threat had been honestly held, as required by the criminal law, but also that it had been reasonably held.

That question could be determined by the courts even though, as the police had admitted liability for negligence and agreed to meet all damages flowing from the incident, a finding of liability on the battery claim would not result in any additional damages being awarded.

The House of Lords so held (Lord Carswell and Lord Neuberger dissenting in part) in dismissing an appeal by the defendant, the Chief Constable of Sussex Police, from the Court of Appeal (Sir Anthony Clarke, Master of the Rolls and Lady Justice Arden, Lord Justice Auld dissenting in part) (The Times August 30, 2006; [2007] 1 WLR 398) allowing an appeal by the claimants, James Ashley, junior, and James Ashley, senior, the son and father of James Ashley, the deceased, against Mrs Justice Dobbs, who on March 21, 2005, struck out their claim for assault and battery against the Sussex Police.

During a police armed raid on the deceased’s flat in the early hours of the morning of January 15, 1998, the deceased, who was naked and unarmed, was shot and killed by PC Christopher Sherwood. Following his acquittal of murder, the claimants brought actions against Sussex Police for damages for, inter alia, assault and battery, negligence and false imprisonment.

The police admitted liability in negligence and false imprisonment but had resisted the assault and battery claim on the basis that the police officer had acted in self-defence in the mistaken belief that the deceased was armed and about to shoot.

Mr Edward Faulks, QC and Mr Paul Stagg for the chief constable; Mr Keir Starmer, QC and Mr Richard Hermer for the claimants; Mr Stephen Suttle, QC and Mr Aidan Eardley for PC Sherwood, intervening.

LORD SCOTT said that the first issue was whether self-defence to a civil law claim for tortious assault and battery, where the assailant acted in the mistaken belief that he was in imminent danger of being attacked, required that the assailant acted under a mistaken belief that was not only honestly but also reasonably held.

For the purposes of the criminal law, even if the mistake was an unreasonable one, if the defendant had been genuinely labouring under it, he was entitled to rely on it. It had been argued that the criteria for self-defence in civil law should be the same.

However, the ends to be served by the two systems were very different. One of the main functions of the criminal law was to identify, and provide punitive sanctions for criminal behaviour. As a general rule, no one was to be punished for the consequences of an honest mistake.

The function of the civil law of tort was different: to protect the rights that every person was entitled to assert against others. Where the rights of one person ran counter to those of others it had to strike a balance between the conflicting rights.

Every person had the right in principle not to be subjected to physical harm by the intentional actions of another. But every person had the right also to protect himself by using reasonable force to prevent an imminent attack.

The rules and principles defining what did constitute legitimate self-defence had to strike the balance between those conflicting rights.

To hold, in a civil case, that a mistaken and unreasonably held belief by A that he was about to be attacked by B justified a preemptive attack in believed self-defence by A on B would constitute a wholly unacceptable striking of the balance.

It was one thing to say that if A’s mistaken belief was honestly held he should not be punished by the criminal law. It would be quite another to say that A’s unreasonably held mistaken belief was sufficient to justify the law in setting aside B’s right not to be subjected to physical violence by A.

For civil law purposes, an excuse of self-defence based on nonexistent facts that were honestly but unreasonably believed to exist had to fail.

The second issue was whether the assault and battery claim should be allowed to proceed to trial.

In view of the chief constable’s admissions on negligence and acceptance of responsibility for any damages which could be proved to have flowed from the incident, a finding of liability on the assault and battery claim would not add anything to the quantum of damages recoverable.

However, although the principal aim of an award of compensatory damages was to compensate for the loss suffered, there was no reason in principle why they should not also fulfil a vindicatory purpose.

But it was difficult to see how compensatory damages could fulfil a vindicatory purpose in a case of alleged assault where liability for the assault was denied and a trial of the issue never took place.

The family were determined to take the assault and battery claim to trial not for the purpose of obtaining a larger sum by way of damages but in order to obtain a public admission or finding that the deceased had been unlawfully killed by PC Sherwood.

They had pleaded a case that, if reasonably arguable on the facts, could not be struck out as being unarguable in law. Why, therefore, should they be denied the chance to establish liability at a trial? It was open to the chief constable to avoid a trial by admitting liability on the assault and battery claim.

It had been contended that the claim should not be permitted because that would amount to an unlawful collateral attack on PC Sherwood’s acquittal. His Lordship did not accept that.

PC Sherwood had been entitled to be acquitted because the prosecution had been unable to lead evidence probative of a rebuttal of his assertion that he had believed himself to be in imminent danger of a deadly attack and in that belief had shot the claimant in self-defence.

But an acquittal of a defendant on a criminal charge of assault based on an assertion by him of the need for self-defence did not mean that he had not unlawfully assaulted the victim.

If a defendant’s acts in the believed need for self-defence were a reasonable and proportionate response to the facts as he honestly believed them to be, it would be quite wrong for the criminal law to impose sanctions upon him.

But if an individual was attacked because the assailant mistakenly believed that the attack was necessary as an act of self-defence and that belief, although honestly held, was unreasonable in all the circumstances, it would seem a travesty for the victim to have to be told that the attack was a lawful one.

The prosecution of the civil action was not a collateral attack on PC Sherwood’s acquittal. It raised issues different from those on which the criminal charges against him had turned.

Lord Bingham and Lord Rodger delivered concurring opinions; Lord Carswell and Lord Neuberger delivered opinions agreeing with Lord Scott on the first issue but dissenting on the second.

Solicitors: Weightmans LLP, Deighton Guedalla LLP, Islington; Russell Jones & Walker.

ASHLEY & ANR v CHIEF CONSTABLE OF SUSSEX

Posted in Assault, Battery, House of Lords (case), Self-defence, Westlaw Reports by mrkooenglish on May 2, 2008

Last updated: 8:21 PM BST 30/04/2008
House of Lords

Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell, Lord Neuberger of Abbotsbury

April 23, 2008

Assault – Battery – Damages – Self-defence – Defendant mistakenly believing attack imminent – Need for belief to be reasonably held

FACTS

The appellant chief constable appealed against a decision ([2006] EWCA Civ 1085, [2007] 1 WLR 398) that the respondents (X) should be permitted to take their assault and battery claim against him to trial.

X were the son and father of the deceased, who had been fatally shot by a police officer during an armed raid on his home. X brought proceedings against the chief constable alleging, among other things, negligence and assault and battery. The chief constable conceded liability for negligence and for all compensatory damages flowing from the shooting. The issues were

  1. (i) whether self-defence to a civil law claim for tortious assault and battery, in a case where the assailant acted in the mistaken belief that he was in imminent danger of being attacked, required such mistaken belief to have been not only honestly but also reasonably held;
  2. (ii) whether, in the light of the chief constable’s concessions, the assault and battery claim should be allowed to proceed to trial.

The chief constable argued that

  1. (1) the criteria for self-defence in civil law should be the same as in criminal law, where the defendant’s genuine mistaken belief in an attack did not have to be reasonably held;
  2. (2) given the concessions that he had made, allowing the assault and battery claim to proceed to trial would serve no useful purpose.

ISSUES

(1) Whether the criteria for self-defence in civil law should be the same as in criminal law, where the defendant’s genuine mistaken belief in an attack did not have to be reasonably held.

(2) Whether, given the concessions that the chief constable had made, allowing the assault and battery claim to proceed to trial would serve no useful purpose.

HELD (appeal dismissed) (Lords Carswell and Neuberger dissenting on the second issue).

(1) (Per Lord Scott) The assailant’s mistaken belief in an attack did have to be not only honestly but also reasonably held. Every person had the right in principle not to be subjected to physical harm by the intentional actions of another person. But every person had the right also to protect himself by using reasonable force to repel an attack or to prevent an imminent attack.

The rules and principles defining what constituted legitimate self-defence had to strike the balance between those conflicting rights. The balance struck was serving a quite different purpose from that served by the criminal law when answering the question whether the infliction of physical injury on another in consequence of a mistaken belief by the assailant of a need for self-defence should be categorised as a criminal offence and attract penal sanctions.

To hold, in a civil case, that a mistaken and unreasonably held belief by A that he was about to be attacked by B justified a pre-emptive attack in believed self-defence by A on B would constitute a wholly unacceptable striking of the balance. It was one thing to say that if A’s mistaken belief was honestly held he should not be punished by the criminal law. It would be quite another to say that A’s unreasonably held mistaken belief would be sufficient to justify the law in setting aside B’s right not to be subjected to physical violence by A.

(2) (Per Lord Scott) The assault and battery claim should be allowed to proceed to trial. The purposes for which damages could have been awarded to the deceased, had he not died as a result of the shooting, were not confined to a compensatory purpose but included a vindicatory purpose. Although the principal aim of an award of compensatory damages was to compensate the claimant for loss suffered, there was no reason in principle why an award of compensatory damages should not also fulfil a vindicatory purpose, and there were no grounds on which it could be said that it would be inappropriate for the claim to proceed for such a purpose.

(3) (Per Lord Neuberger) The factors militating against allowing the assault and battery claim to proceed to trial outweighed those in favour of doing so. The former included the following: the three primary routes to obtaining a public investigation had been taken or not adopted; two internal inquiries had been held; a public apology had been made; liability for damages had been conceded; the police officer in question had been prosecuted and acquitted; further, substantial costs and court time might have to be devoted to the claim.

Edward Faulks QC and Paul Stagg (instructed by Weightmans) for the appellant.

Keir Starmer QC and Richard Hermer (instructed by Deighton Guedalla) for the respondents. Stephen Suttle QC and Aidan Eardley (instructed by Russell Jones & Walker) for the interveners.