Cumming & Ors v Chief Constable of Northumbria Police

1. LORD JUSTICE SIMON BROWN: The applicants are five staff of exemplary character at the South Tyneside Metropolitan Borough Council CCTV Unit. In May 1999 they were on duty on various shifts when two tapes, a spot tape and a multiplex or back-up tape, were interfered with so as to blank out the record of a particular offence which had been committed by youths on the streets of South Shields. All five were arrested on suspicion of attempting to pervert the course of public justice, but not in the event charged. When a sixth member of staff (also arrested) admitted to having wiped one of the tapes, although as he suggested mistakenly, the five applicants were accepted to have been wholly innocent.

2. The applicants sued the respondent Chief Constable for wrongful arrest but, following a four day trial on 27 January 2003, failed in their claim before Judge Hewitt in the Newcastle County Court. They now seek permission to appeal against that judgment. Hale LJ, on the documents, adjourned their application for oral hearing on notice to give the respondent an opportunity to deliver a knock-out blow.

3. Having spent longer reading the papers in this case than ordinarily one should have to do on an application for permission to appeal, and having listened to counsel briefly, this morning, I can not by any means be sure that there is no realistic prospect of success in this case were it to go to appeal. That is not to say that the appeal is bound to succeed or indeed that the applicants ought to take any particular encouragement from this grant of leave. Rather, it is to say that it is impossible to deliver a knock-out blow sufficient to be sure that no sound argument on fact and/or law arises.

4. The two points that seem to me to be the most promising areas for further consideration are, first, the extent to which it can properly be said that, the police suspect X to be guilty of a crime when in fact the position is no more than that they are certain that someone is guilty, and conclude that X is one of a small number of people who must include the criminal.

5. The second and related point is whether, if that is the situation and the police have arrested a number of people, the majority of whom they recognise are likely to be wholly innocent, it is reasonable in Wednesbury terms and in the light of the decision of the House of Lords in Mohammed-Holgate v Duke [1984] 1 AC 437, to compel the attendance of the whole group at the police station in order, as the judge recognised to have been the police thinking here, to exert the maximum pressure upon the guilty person(s) to obtain a confession. Is that permissible in circumstances when they are all of wholly good character and may be ready to attend the police station voluntarily for the investigation to be carried out without the need actually to arrest them?

6. These, as I say, seem to me areas which may well merit further exploration. I would certainly suggest that the appellants exercise a measure of fastidiousness in the particular points that they choose to press on the appeal. Whilst, therefore, I am not disposed to grant only a limited appeal, I would discourage too wide an assault upon the judge's basic factual findings.

7. In the hope that those few words may provide some assistance in the further preparation of this appeal, I would content myself with granting permission.

8. LORD JUSTICE WARD: I agree.

Order: Permission to appeal granted. Time estimate 1 day. Costs to be costs in the appeal.