Larrier v Merseyside Police

J U D G M E N T

1. THE PRESIDENT: I will ask Lord Justice Potter to give the first judgment.

2. LORD JUSTICE POTTER: This is an appeal by the claimant, Kensley Larrier, against the judgment and order of His Honour Judge MacMillan made on 7th October 2003 when, sitting with a jury in the Liverpool County Court, he dismissed the claimant's claims for unlawful imprisonment and malicious prosecution against the respondent, the Chief Constable of Merseyside Police, arising out of the arrest and subsequent prosecution of the claimant for speeding on 26th August 2001 on the M57 motorway. The issue on this appeal is whether or not the judge erred in law in withholding from the jury, and himself deciding, the issue whether or not the claimant was in fact speeding on that occasion.

3. The essential facts as pleaded in the particulars of claim were that on 26th August 2001 the claimant was driving his convertible VW Golf along the M57 towards the M62 junction, heading towards Liverpool. As he got to the Prescot turn- off, he saw a police car coming down the slip road onto the M57. A car in the left- hand lane pulled out into the middle lane to allow the police car onto the motorway. As the car in the middle lane was only going at about 45mph, the claimant overtook it without breaking the speed limit. As he intended to leave the motorway at the next turn- off he returned to the left- hand lane, noticing the police car go in the middle lane but without overtaking him. The claimant continued until he turned off the motorway, stopping at the top of the exit slip road when the traffic lights were at red and the police car stopped behind him. When the lights went green he drove through them to the next traffic lights, again stopping at red with the police car behind him. When the lights turned green he joined the M62, upon which, after a distance of about 500 yards, the police car put on its blue lights and signalled him to pull over. The claimant pulled over onto the hard shoulder and was questioned by the officers, one of them seeking to establish over the police car radio whether there were any warrants outstanding against the claimant. The officer then said that the claimant had been driving at 95mph on the motorway. The claimant told him to fill out the ticket if that was the case and then he could go.

4. The claimant also asked about the calibration of the police vehicle and was invited to get into the police car and look at the equipment. However the claimant did not do so and indicated that he simply wanted the ticket so he could go. After a good deal of argument the officer eventually wrote the ticket and let the claimant go, having detained him at the roadside for approximately 45 minutes.

5. At proceedings before the Magistrates, the claimant contested his speeding ticket and the case against him was dismissed.

6. The defence alleged that, as the officers joined the southbound carriageway of the M57, they saw the claimant's car in the outside lane and that it appeared to be travelling at a speed in excess of the speed limit. The officers accelerated their vehicle and moved into the outside lane, following the Golf for a distance of 1.3 miles and recording it at a constant speed of 95mph i.e. 25mph in excess of the speed limit. They followed the Golf after it had left the M57 and made its way to the carriageway of the M62 before stopping it. It was alleged that the claimant braked sharply and came to a halt so severely that smoke came from all four tyres. It was alleged that the claimant began to shout incoherently but calmed down and was then cautioned, the officers pointing out to him that he had been travelling at a speed of 95mph in a 70mph limit. There was then a description of excitable behaviour on behalf of the claimant. It was accepted that he demanded to see proof of calibration of the police vehicle and that the speedometer and calibration number were then pointed out to him. It was said that the whole incident had taken no more than 20 minutes.

7. The claimant's cause of action was false imprisonment and malicious prosecution, it being alleged that his stopping and detention were unlawful. It was pleaded:

"There was no lawful basis for the officers to stop him. Further, his detention was unlawful, not being founded upon reasonable suspicion of the commission by the Claimant of an arrestable offence. There was no lawful authority for the stop and detention."

8. The defence pleaded that at no time was the claimant deprived of his liberty. It was also pleaded that the actions of the police were justified on the basis that the officer in charge:

"... lawfully exercised his power to stop the Claimant's motor vehicle under S.163 Road Traffic Act 1988 as the Claimant had committed the offence of speeding contrary to Regulation 3 of Motorways Traffic (Speed Limit) Regulations 1974 and S.17(4) Road Traffic Regulation Act 1984 and Schedule 2 Road Traffic Offenders Act 1988."

9. It was admitted that the Magistrates had dismissed the case against the claimant at trial but denied that the prosecution was malicious.

10. The trial below commenced before the judge and a jury on 6th October 2003. Evidence was given by the claimant, the two police officers involved in stopping him and another peripheral police witness along the lines of the facts pleaded in the claim and defence. The central conflict of fact was whether the claimant had in fact been speeding. The evidence was completed.

11. The second day of the hearing started with an application by counsel for the police, Miss Griffiths, who argued that there was no evidence which could properly go before a jury to support the allegations that the claimant had been falsely imprisoned or that the police did not have reasonable or probable cause to prosecute him. Having heard submissions, the judge initially indicated that he was going to leave two questions of fact to the jury; the first being whether or not the claimant was exceeding the speed limit and the second being whether or not the claimant had proved that the police did not honestly believe that he was speeding.

12. On further discussion between the parties, it was agreed (correctly) between counsel that the second question, now framed in terms whether the police had 'reasonable cause' to stop the claimant, was one for the judge and not the jury. However the question whether the first question should be put to the jury at all became contentious on the basis of lengthy submissions from Miss Griffiths. The judge was accordingly asked to make a ruling. He then ruled as follows:

"At this stage I am asked by the defendant, the Chief Constable of Merseyside, to decide the issue, to quote from Lord Justice Diplock in the Dalston case:

'As in any other jury trial, it is for the judge in an action for false imprisonment and malicious prosecution ...', as this is, '... to decide whether the evidence on a relevant matter does raise any issue of fact fit to be left to the jury.'

The relevant matter here is whether or not the two police officers concerned, Police Constables Blakeley and Billingley, had reasonable cause to stop the claimant, Mr Larrier, while he was driving his car on the M57 and M62, for exceeding the 70 miles an hour speed limit.

[The judge then shortly summarised the effect of the evidence of both sides as to speed.]

It is suggested by the claimant that the issue of fact which the jury could answer is, 'Was Mr Larrier in fact exceeding the speed limit?' And he says that if the jury's answer to that is 'No', that it would be perverse of me to decide that the police officers had reasonable cause to suspect that that was wrong. I do not agree with that. It may be of assistance in deciding the issue whether the police officers had reasonable cause to think that he was exceeding the speed limit, but I do not think it would be perverse of me to decide to the contrary.

In those circumstances I cannot see that there is any relevant question that would be conclusive as to the issue of reasonable cause to suspect that Mr Larrier had been speeding, so in those circumstances, after a lengthy argument for which I am very grateful to counsel, I decide that there is no issue of fact which should be left to this jury. And on the issue of whether or not there was reasonable cause, as I have said having heard the evidence and considered it carefully, I am quite satisfied that the police officers did have reasonable cause to suspect that Mr Larrier was exceeding the speed limit and therefore had reason to detain him and reason to prosecute him for the offence of speeding, of which he was acquitted by the magistrates."

13. The claimant's counsel, Mr Thacker, then observed:

"Your Honour, that disposes of the whole case."

14. The judge replied:

"Yes, and in those circumstances, Mr Thacker, on the two issues that you ask me to deliver judgment I do not think it is necessary for me to do so, unless you wish me to."

15. Mr Thacker then said that he thought the matter might go further and that he would need a reasoned judgment.

16. The judge then brought the jury back into court and discharged them.

17. Mr Thacker then said he was somewhat concerned because it was clear from what the judge had said in the course of his ruling that he had made up his mind upon the issues in the case and yet he had heard no submissions from counsel. The judge then indicated that he was quite happy to hear any submissions which Mr Thacker might wish to make on the grounds that he had only expressed a preliminary view as to the outcome and would take everything that was submitted to him into account. The judge indicated to Miss Griffiths that he did not need to hear from her as he was provisionally in her favour, and then proceeded to hear Mr Thacker at length.

18. Having heard submissions from Mr Thacker, he gave a reasoned judgment dismissing the claimant's claims.

19. During the course of Mr Thacker's submissions, assertions were made as to the credibility of the police officers. In his judgment, the judge stated:

"... I am quite satisfied the police are telling me the truth about the speed and their reasonable belief as to the speed that the claimant was travelling at, and in those circumstances although I have only got to be satisfied on the balance of probability, I am most certainly satisfied as to that and it follows, as Mr Thacker says, this is an all or nothing case, that the grounds for prosecution are made out on the police version of what happened."

20. Mr Thacker then sought permission to appeal, which permission the judge refused on the grounds that:

"(1) On the facts as I found them there was no relevant question for the jury to decide on the fundamental issue of whether or not the Police had reasonable grounds to stop the Claimant.

(2) There was no procedural irregularity. I gave the Claimant every opportunity to make his submissions on liability before I gave judgment."

The relevant law

21. In a case of false imprisonment where detention is admitted, the burden is on the defendant to establish, on a balance of probabilities, that the detention was lawful. If no such lawful justification is established, the claimant is entitled to succeed. So far as the tort of malicious prosecution is concerned, it is for a claimant to show, again on the balance of probabilities, that the necessary ingredients of the tort are made out. He must establish that the law was set in motion against him on a criminal charge, that the prosecution was determined in his favour, and that the prosecution was without reasonable and probable cause and that it was malicious: see Gregory v Portsmouth City Council[2000] 1 AC 419.

22. In the instant case it was admitted that the claimant had been prosecuted and that he had been acquitted. Accordingly the central issue for the purpose of malicious prosecution was whether the respondent had reasonable and probable cause for bringing the prosecution.

23. In a number of cases, this court has set out the appropriate principles to be applied by the judge when dealing with the issues of fact which arise in cases of this kind. It is for the judge to decide whether there is sufficient evidence to go to the jury on any particular issue and to adjudicate upon the reasonableness of the actions of police officers. However, where there is a conflict of evidence between the parties on a relevant issue of fact, it is for the jury to decide that issue.

24. In Dallison v Caffery[1965] 1 QB 348 Diplock LJ set out the position in relation to the respective functions of judge and jury at page 371G- 372G:

"Next as to procedure. In arresting, detaining or prosecuting a suspected felon a person is acting in furtherance of the administration of justice. It is a well- settled rule of procedure that the question whether in so doing he is acting reasonable is one to be decided by the judge. It may be that this rule reflects the judicial distrust of Jacobinism among juries at the formative period of this branch of English law; but it can at least be rationalised on the ground that a judge, by reason of his office and his experience, is better qualified than a juryman to determine what conduct is reasonable or unreasonable in furtherance of the administration of justice. In those days, however, the jury was the only tribunal which at common law was competent to determine disputed issues of fact. If there was conflicting evidence as to what had happened, that is, as to what the conduct of the defendant in fact was, the jury alone was competent to resolve the conflict. But when what had happened was established, whether by uncontradicted evidence or, in case of conflict, by the jury's finding of fact, it was for the judge to rule whether the defendant's conduct was reasonable or unreasonable. This is still the position today where an action for false imprisonment or malicious prosecution arising out of the arrest, detention or prosecution of a suspected felon is tried by judge and jury. It is for the judge to decide what facts given in evidence are relevant to the question of whether the defendant acted reasonably. It is thus for him to decide, in the event of a conflict of evidence, what finding of fact is relevant and requisite to enable him to decide that question. But a jury is entitled to base findings of fact only on the evidence called before it and, as in any other jury trial, it is for the judge in an action for false imprisonment or malicious prosecution to decide whether the evidence on a relevant matter does raise any issue of fact fit to be left to a jury. If there is no real conflict of evidence, there is no issue of fact calling for determination by the jury. This applies not only to issues of facts as to what happened, on which the judge has to base his determination whether the defendant acted reasonably, but also the issue of fact whether the defendant acted honestly, which, if there is sufficient evidence to raise this issue, is one for the jury." (emphasis added)

25. In Balchin v Chief Constable of Hampshire Constabulary[2001] EWCA Civ 538, there was a dispute between the parties as to the factual circumstances in which the claimant had been arrested. The judge, despite having been provided with a copy of the decision in Dallison v Caffery, decided to resolve factual disputes herself. The Court of Appeal pointed out that she was wrong to do so and should have left the relevant issues to the jury. It summarised the correct legal position as follows per Henry LJ at paragraph 3:

"a) the burden of proof is on the police to justify the arrest;

b) to do so, they must satisfy the judge that a reasonable man, assumed to know the law and possessed of the information that the arresting officer had, would believe that there was a reasonable or probable cause for the arrest;

c) while the above question is a question of law for the judge, it is a question he can only answer on agreed facts or uncontradicted evidence or, where the evidence is conflicting, by the jury's explicit finding of fact;

d) it is for the judge to decide what finding of fact is 'relevant or requisite', and whether the evidence on a relevant matter does raise an issue of fact to go to the jury."

26. In my view, the judge was plainly wrong in the decision to which he came. I consider that he was right in his original assessment at the outset of submissions that there were two important questions namely (i) whether the claimant was exceeding the speed limit; it was after all the very reason pleaded in the defence as the justification for the police following him and stopping him at all. (ii) Whether there was reasonable and probable cause for the arrest. This was rightly agreed between counsel to be a question for the judge rather than the jury; however, in the circumstances of the case it plainly hinged to a large degree upon the first question. In particular, because the officers' evidence was that they had followed the claimant for a considerable distance with a speed of over 90mph showing on their calibrated speedometer, if the factual question as to the speed of the claimant was determined by the jury against the police, it is hard to see how the judge could have come to any other conclusion but that the police were simply not telling the truth. While the judge did not appear to accept that that was so, in the course of his ruling quoted at paragraph 12 above, he at least conceded that the question whether or not the claimant was in fact speeding might be "of assistance" in deciding the issue as to 'reasonable cause'. Since the factual issue had to be resolved and there were two competing versions of events, it should have been left to the jury.

27. The judge appears to have accepted the submission for the respondent that the reason there was no issue to go to the jury was because the police officers had power to stop the claimant in any event, provided that they had not acted capriciously. However, as was pointed out to the judge in argument at the submission stage, and as he appeared to accept, this was not how the case was pleaded or the evidence advanced. In any event, the only basis for the argument of the respondent that the police officers were not acting capriciously was that the claimant was speeding, alternatively that they reasonably suspected him of doing so.

28. Upon this appeal, Mr Pickering for the respondent has gallantly sought to argue that the question whether or not the claimant was speeding was not the question for decision, the issue being whether the respondents reasonably suspected that he was exceeding the speed limit. He points out that the police evidence was that they honestly believed that the appellant was exceeding the speed limit and the appellant was in no position to call evidence to cast doubt upon that assertion because there was no evidence upon which he could challenge their belief. He submits that since the appellant had no ammunition to challenge the fact that the police speedometer in fact showed a reading of 95mph he had no evidence to challenge the fact that they believed that the appellant was driving in excess of the speed limit. Consequently the judge was correct to conclude that there was no issue of fact for the jury to resolve.

29. This argument seems to me both simplistic and devoid of realism. It was quite clear that the good faith of the officers was in issue in this case. That being so, the nature of their evidence as to what the speedometer showed or what they believed could scarcely be considered independently of the question whether or not the claimant was in fact travelling within the speed limit. The difference between the two speeds was such that, as the judge himself stated early in the argument before him:

"It is common sense, Miss Griffiths. They [i.e. the officers] are both experienced drivers, they would know the difference between going at 60 miles an hour and going at 90."

30. Thus, as Mr Thacker put it early in his submissions to the judge (and as the judge at that stage accepted):

"If the jury do not believe them, what is left of the Chief Constable's case? If the jury do not believe the officers, that they stopped him because of the 95 miles per hour, they can speculate all they like but the only conclusion is that it was capricious, there is no other conclusion to be drawn because that is the Chief Constable's case."

31. In my view, this appeal should be allowed and a new trial ordered before a different judge and jury.

32. LORD JUSTICE MUMMERY: I agree.

33. THE PRESIDENT: I also agree.

ORDER: Appeal allowed with costs here and below on the standard basis, to be assessed if not agreed; the order of 7th October 2003 is set aside; the claims for damages for false imprisonment and for malicious prosecution remitted to the county court for a retrial or rehearing.

(Order not part of approved judgment)

______________________________