Faniyan v The Commissioner of Police for the Metropolis

This is a renewed application for permission to appeal. Dame Janet Smith, on the papers on 18 October 2011, granted the applicant a short extension of time for appealing but refused permission to appeal. She said she had found the applicant’s grounds of appeal and skeleton argument extremely difficult to follow. Insofar as he was seeking to overturn the judge’s findings of fact, she considered there was no prospect of the Court of Appeal being prepared to interfere. She also did not think it arguable that the judge had erred in law. She could not see that ground 2 in paragraph 4 of the skeleton argument was argued before the judge at all.

I too found the applicant’s grounds and skeleton argument difficult to follow, although at the hearing he helpfully produced a short written summary of his legal arguments in support of his application. That brought a little more clarity to the case he wishes to make, although it still remained far from fully clear.

The proposed appeal is against an order made by His Honour Judge Hand QC, in the Central London County Court, on 9 June 2011 following a two-day trial. By his order the judge dismissed the applicant’s claims with costs and refused permission to appeal. The respondent is The Commissioner of Police for the Metropolis. The applicant’s claims, which he advanced in person, were for damages for false imprisonment, assault and battery and malicious prosecution.

In outline, the relevant events were as follows. On 15 June 2007, sometime after 3 pm, the applicant was driving along Homerton Road when he was stopped by police officers who were conducting an operation in relation to traffic matters. He was arrested, handcuffed and taken to Stoke Newington Police Station in a police car. He was seen by a custody officer shortly after 5.00 pm, when that officer authorised his detention in a cell in connection with matters arising out of his driving of the car. Just after 7.00 pm he was further arrested in connection with immigration matters. They were cleared up by 2.30 am the following morning, 16 June, but he remained in custody until 8.20 am when he was charged with using a motor vehicle without third party insurance and failing to provide his and the vehicle owner’s name and address. The charges proceeded to court when they were withdrawn after the applicant had produced an insurance certificate and explained that he had been taking the car for an MOT test, which would be an insured use.

Although that is the outline, there was considerable dispute as to what happened at various stages. The judge heard oral evidence on the disputed issues and made findings of fact on them. More fully, the story was as follows.

The car belonged to the applicant’s wife and the reason he was stopped was because as the car went past a camera, a computer in the roadside police van produced information about it that raised questions, probably because the car had once been involved in an accident and was recorded as having been written off: in particular, the information included no evidence that the car had insurance covering either the applicant or any other driver. The applicant claimed that it was PC Whitefield who stopped him and who, because the applicant had no documents, issued him at the roadside with form HO/RT1, requiring the production of documents by him at a police station (driving licence, insurance certificate and MOT certificate). He also claimed that PC Patel then addressed him discourteously; arrested him for not providing information and for driving without insurance; handcuffed him and placed him in the rear of a Vauxhall patrol car, putting the applicant in an uncomfortable position.

The judge rejected the applicant’s case that he was stopped by PC Whitefield, whom he found was not at the roadside that afternoon but was at the police station. He also found, for reasons he gave in paragraphs 25 to 30, 44, 45, 50, 51 and 52 of his judgment, that the HO/RT1 form was not filled out or given to the applicant at the roadside or at the car park at Homerton Road but was given to him on the following morning, 16 June, at the police station. He rejected the complaints against PC Patel, whom he found had not behaved in the way that the applicant had claimed. He found that, for whatever reason, the applicant was unwilling to give his name and address and asserted that he was not obliged to do so. The judge found that he was lawfully arrested by PC Patel, lawfully detained and taken to the police station and properly placed in the police car for that purpose. He accepted PC Patel’s evidence that he had endeavoured to get the applicant into the most comfortable position in the car but found that the applicant, who was agitated, was either unwilling or unable to do that. He rejected the applicant’s evidence that PC Patel told him en route that he was in the process of fabricating a case against him and that he was writing up his notes for as long as 75 minutes. He rejected, for reasons he gave, the applicant’s claims that he was punched or kicked whilst in the car.

The judge’s account moved to the events at the police station. There was a queue in the custody suite as it was to this station that those arrested in the traffic operation were taken; and the judge accepted that delays caused by such queues must happen from time to time. He rejected the suggestion that the delay amounted to a wrongful detention of the applicant. He said:

PC Morton was the duty custody officer and it was she to whom PC Patel presented the applicant. The custody record was opened at 5.10 pm. The ground for detention was to interview the applicant on tape, and the reason for it was ‘to obtain evidence by questioning’. The judge rejected the applicant’s evidence that PC Morton ignored his complaints that he was sore in the body and had been assaulted: the judge found that no such complaints were made. What PC Morton did consider was the applicant’s complaint of soreness to his wrists, in relation to which she instructed a doctor. PC Morton recorded that the applicant was screaming whilst waiting to be booked in but was ‘now calm’. The judge accepted that as an accurate description of his behaviour.

The applicant was placed in the cells where he was examined by the doctor. At 6.38 pm Inspector Brown conducted a review and concluded that there were reasonable grounds to believe that detention was necessary in order to charge the applicant. No reference was at that stage made that it was necessary to confirm the south London address that the applicant had given to PC Morton.

At 7.06 pm PC Irvine further arrested the applicant on the basis that he was an overstaying immigrant. The custody record showed that she had made a statement in relation to this, but it had gone missing and so she was unable in her evidence to say much about the circumstances of this further arrest save that she would not have arrested him on that ground without a basis for doing so, as the judge accepted. The judge held that the applicant’s detention at that point on the dual bases of suspicion of immigration and driving offences was lawful.

16 June arrived. Police Inspector Saunders, at about 1.45 am, continued the detention on the basis that there were reasonable grounds to believe that it was necessary in order to secure evidence. The recorded grounds were ‘Subject stopped for no insurance. His immigration status is in question and checks are being completed on his out of date passport’. At 2.24 am there was brought into the station a Nigerian passport containing a stamp giving the applicant a right of abode. By about 2.30 am further immigration inquiries that had been made (including of Mr Conway at Manchester Airport) established that the applicant had a right to remain, was granted citizenship in 1999 and was the holder of a British passport valid from 2010. Following that, he could not be further detained on suspicion of immigration offences but Police Sergeant Wilson noted in the custody record that she needed ‘to confirm no driving offences’. She continued the applicant’s detention in order to allow investigations into the original road traffic matters by the officer in charge, whom the judge presumed was PC Patel.

There followed the transmission of messages from the police station to various recipients, the objective being to verify that the applicant lived at the address he claimed and to get hold of his passport. By 8.23 am it had been confirmed he did live at his claimed address. By 8.30 am, and on the authority of Police Sergeant George, he was charged with using a motor vehicle without third party insurance and failing to give his and the car owner’s name and address. He was then released from custody. He had not been interviewed as it was thought unnecessary.

As for the law, the judge held, in paragraph 65, that PC Patel’s arrest of the applicant had been lawful and was shown to be so by section 24(2), (4) and (5) of the Police and Criminal Evidence Act 1984, as amended. He explained, in paragraph 66, the factual justification for such arrest, namely that the applicant had not given his name and address to PC Patel and the car could not be associated with any insurance document or valid MOT certificate and was shown to be a write off. As for the applicant’s assault and battery claim, the judge had rejected the kicking and punching allegation and so that claim failed. The judge found that the applicant did suffer quite significant injuries to his wrists. In paragraph 69, however, he found that they had not been deliberately inflicted on him by PC Patel; they were the consequence of the applicant’s agitation, constant movement of the handcuffs and constant movement around in the back of the police car. He therefore also rejected the complaint in respect of the wrist injuries.

Turning to the malicious prosecution claim, the evidence at the time of the charge was that the car the applicant had been driving had been written off and there was no evidence that it was subject to insurance covering either the applicant or anyone else. The judge’s assessment was that those circumstances justified the applicant’s prosecution in relation to the insurance matter and also, having accepted PC Patel’s evidence, in relation to the applicant’s failure to provide his name and address. He held that there were reasonable grounds for bringing the charges. His assessment was that it was entirely reasonable to have prosecuted the applicant up to the point at which he produced the supporting insurance material.

As for the applicant’s detention, the judge had held the arrest to have been lawful. Police Sergeant Morton was presented at the station with someone who, as she had been told by PC Patel, had refused to give a name and address at the roadside. Her view that it might be necessary to interview the applicant was a reasonable one. The detention of the applicant for that purpose was lawful under section 37(1) and (3) of the Police and Criminal Evidence Act 1984, and following PC Irvine’s belief that immigration offences may have been committed, there was, after 7.06 pm, a further reason for the applicant’s detention. The judge devoted careful consideration to whether the continued detention of the applicant after the immigration question had been cleared up at about 2.30 am until his release at 8.30 am was lawful, and gave his reasons for finding that it was.

In his address to me, in explanation of the written submission that he produced at the hearing, the applicant indicated that the points he wishes to argue on an appeal against Judge Hand’s order were as follows. They are of a fairly narrow nature. First, he wishes to raise points in relation to the issue of the HO/RT1. To the extent, which I do not find clear, that he wishes to challenge the judge’s findings that this document was issued to him at the police station rather than at the roadside, such a challenge has no prospect of success. Having seen the witnesses and heard their evidence, the judge made clear findings on this, for the full reasons he gave, and the Court of Appeal will not interfere with them.

The applicant referred me to section 165 of the Road Traffic Act 1988 in relation to which he wishes to submit that the relevant form:

I do not fully understand the point that the applicant wishes to argue in relation to issue of an HO/RT1, or how where it was issued was or is relevant to the issues upon which the judge was required to adjudicate. It does, however, appear to be a key part of the applicant’s case that his failure to give his name and address to PC Patel was not an offence and so he was therefore not lawfully arrested. However, the provisions of section 165(1) and (3) show that it was an offence; and it is not reasonably arguable that the qualification in subsection (4), upon which the applicant relied, as to when a conviction can be obtained under subsection (3) makes any difference. Subsection (4) is concerned only with the subsection (1) obligation to produce documents of the nature described in subsection (2). It has nothing to do with a failure under subsection (1) to comply with a constable’s request for the driver’s name and address.

In my view, there is no arguable case that PC Patel was not lawfully entitled, as the judge held, to arrest the applicant for, amongst other things, this failure. An appeal based on such point would have no real prospect of success. It is, moreover, also unclear that any such point was advanced to the judge, whose judgment makes no reference to it.

The other head of complaint about the judge’s conclusions that the applicant wishes to challenge is his holding that the applicant was lawfully further arrested for a suspected immigration offence. That arrest was at 7.06 pm. The applicant submits that the basis for this suspicion had, by about 2.30 am on the following morning, been removed following the inquiries made of Mr Conway. The applicant wishes to argue that PC Irvine had no power to effect that arrest and that in doing so her actions were ultra vires, unlawful and irrational. He says that sections 4 and 28A of the Immigration Act 1971 show that she had no power ‘to determine or vary the immigration status of an immigrant’ and that only an immigration officer had such a power.

This is the point that Dame Janet Smith could not see was argued before the judge. The point is not mentioned in the applicant’s particulars of claim or witness statement or in the judgment. I agree with Dame Janet Smith that the inference is that it was not argued, nor did the applicant suggest otherwise to me. I can, therefore, see no good reason why he should be given permission to argue on an appeal a point that he did not argue below. Moreover, I am anyway not persuaded that it is reasonably arguable that the point is correct. PC Irvine was not purporting to exercise any power under section 4 of the 1971 Act; and it is not apparent to me why she was not lawfully exercising the power of arrest that she had under section 28A(1)(b) of that Act. I take the view that this line of argument is one that, if the applicant wished to deploy it, he should have deployed at the trial. I can see no justification for allowing him to have a second bite at the cherry on an appeal, particularly having regard to the fact that I am not persuaded that the point has any real prospect of success.

I refuse the applicant’s application for permission to appeal.