Zenati v Police of the Metropolis & Anor

This is an appeal from a decision of HH Judge Mitchell in the County Court (Central London) whereby he struck out the claimant’s claims against the Commissioner of Police of the Metropolis (“the police”) and the Director of Public Prosecutions (“the CPS”) for a declaration and damages for breach of article 5 of the European Convention on Human Rights (“the Convention”) and the tort of false imprisonment. The claims were struck out under CPR 3.4(2)(a) on the grounds that the Particulars of Claim disclosed no reasonable grounds for bringing them.

The following summary is largely derived from the Particulars of Claim which, for the purposes of the strike out application, must be assumed to be true. I have also drawn (to a small and, I believe, an uncontroversial extent) on the evidence of Kevin Hansford whose witness statement has been made on behalf of the CPS.

The claimant is a national of the UK (and Libya). He has a British passport and a Libyan passport. On 7 December 2010, he was arrested in relation to a racially aggravated public order offence. Following his arrest, he produced his British passport. DC Azam (who had been trained in forgery detection) considered that certain anomalies in the passport indicated that it was counterfeit. The claimant was charged with offences under the Identity Cards Act 2006 and was remanded in custody by the Camberwell Green Magistrates’ Court on 10 December.

On the same day, the CPS completed a “file build request form”. This requested the officer in the case to arrange for a more comprehensive examination of the passport (a stage two examination) by 24 December. The request was not forwarded to the officer in the case, PC Smith, until 31 December. PC Smith contacted the National Document Fraud Unit (“the NDFU”) which is part of the UK Border Agency, but the passport was not delivered to the NDFU until 13 January 2011. The case was transferred to the Inner London Crown Court on 7 January. On 19 January, PC Smith was told by the NFDU that the passport was genuine.

At a plea and management hearing which was held on 4 February (which was a Friday), the claimant pleaded not guilty to the passport offence. The CPS told HHJ Lees that they needed to obtain a statement from immigration authorities to confirm that the passport was a forgery and that it would take 28 days to obtain the necessary information. The judge allowed 14 days. No mention was made of the information that had been obtained from the NDFU. As HHJ Mitchell put it at para 3 of his judgment, “it is quite clear that the people in court, including the judge, were under the impression that the more comprehensive examination of the passport had not taken place”. The CPS said that it would agree to the granting of bail provided that the claimant gave details of a residential address which was acceptable to PC Smith. The claimant was unable to do this. The judge pointed out that the claimant’s solicitors had not put the CPS on notice of his intention to seek bail.

At 16.38 on the same day, an email was sent by PC Smith to Laura Dobie who was a CPS paralegal. The email stated that the examination had been completed “some time ago” by the NDFU and that the NDFU stated that the document was genuine. At 9.20 on Monday 7 February, Ms Dobie forwarded the email to Jane Puckey who was the caseworker allocated to the case. At 13.58 on the same day, Ms Puckey forwarded the email to the David White who was the allocated prosecutor. He then reviewed the case. At 14.26, he asked PC Smith to obtain a witness statement from NDFU confirming the results of the stage 2 review and addressing the irregularities in the passport that had been identified earlier.

A bail hearing had been fixed for 9 February. This had been requested by the claimant’s solicitors following the hearing of 4 February. The true facts were now revealed and the claimant was granted bail.

The claimant advances two claims in these proceedings. The first is that, in breach of section 6 of the Human Rights Act 1998 (“the HRA”), the defendants acted in a way which was incompatible with the claimant’s rights under article 5 of the Convention. In particular, he alleges that (i) his detention from 19 January 2011 until his release on 9 February was in breach of article 5(1)(c) and (ii) that his detention from 10 December 2010 until 9 February 2011 was unreasonably long and in breach of article 5(3) in that the defendants failed during this period to act with “special diligence” in investigating the alleged offence. Secondly, he alleges that the defendants are liable in the tort of false imprisonment for his detention from (or shortly after) 19 January until 9 February 2011.

So far as material, article 5 of the ECHR provides:

“1.

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

……

(c)

the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

…….

3.

Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5.

Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The submissions of Mr Southey QC are as follows. The purpose of article 5(1) is to ensure that no one is deprived of his liberty arbitrarily. To avoid arbitrariness, “the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5(1)”: see James v United Kingdom (2013) 56 EHRR 12 at para 193. Once it is known that the grounds of detention under article 5(1) no longer exist, it is incumbent on the state to release the detained person as soon as possible. The need to release a person where the justification for detention no longer exists has been expressly recognised in the Strasbourg jurisprudence, primarily in the context of the case law on article 5(3) regarding detention pending trial: see, for example, Tomasi v France (1993) 15 EHRR 1 at para 84: “[the] persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention”. On the facts of the present case, after 19 January 2011 there were no longer any grounds for continuing to have a reasonable suspicion that the claimant had committed the passport offence. Accordingly, his continued detention thereafter was in breach of article 5(1)(c).

The response of Mr Johnson QC and Mr Donmall can be summarised as follows. When read with article 5(3), article 5(1)(c) requires no more than that there is and continues to be a reasonable suspicion of the commission of the offence at the time of the remand in custody and at each subsequent occasion when the question of the detention is reviewed by the court. They accept that, if a reasonable suspicion of the commission of the offence is absent on any such occasion, then continued detention thereafter is in breach of article 5(1)(c). But they submit that the fact that reasonable suspicion of the commission of the offence ceases on a date between such occasions does not render the continuing detention, pending a review by the court, a breach of article 5(1)(c).

In my view, it is clear that article 5(1)(c) and 5(3) must be read together. Article 5(1)(c) provides that detention is lawful if it is effected for the purpose of bringing a person before “the competent legal authority on reasonable suspicion of having committed an offence”. Article 5(3) provides that any person detained for that purpose must be promptly brought before “a judge or other officer authorised by law to exercise judicial power” and is entitled to trial within a reasonable time or release pending trial. The term “competent legal authority” has the same meaning as the term “judge or other officer authorised by law to exercise judicial power”: see Schiesser v Switzerland (1979) 2 EHRR 417 at para 29. I shall use the word “court” as a shorthand for both terms.

The overarching principle which underlies article 5 as a whole is that “no-one is dispossessed of his liberty in an arbitrary fashion” and, consistently with this, article 5(1) “requires that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness”: see James paras 187 and 191. It is not in dispute that, when the question of release on bail is considered by a court, it is a requirement of article 5(3) that bail may not be refused unless there subsists a reasonable suspicion that the detained person has committed the offence. This has been repeatedly stated by the ECtHR: see, for example, para 22 below.

Article 5(3) focuses on the conditions that must be satisfied before a court can lawfully authorise the continuation of detention. The article 5(1)(c) question that we have to decide is whether detention becomes unlawful as soon as (or more realistically, within a reasonable time of when) the investigating authorities cease to have reasonable suspicion of the commission of the offence for which a person was arrested and detained.

The paradigm article 5(1)(c) case is detention for the purpose of bringing a person before the court at the initial stage where the authorities have a reasonable suspicion at that stage that the alleged offence has been committed. But what if the investigating authorities cease to have reasonable suspicion at a later stage? Where this occurs, does the detention cease to be for the purpose of bringing the person before the court on reasonable suspicion of having committed an offence, so that it no longer satisfies the requirements of article 5(1)(c)? As I have said, the respondents do not go that far. But there is nothing the language of article 5(1)(c) which supports their submission that it requires no more than that a reasonable suspicion exists when the question of detention is reviewed by the court.

I accept that one aim of article 5(1)(c) is plainly to limit the period of detention before a detainee’s first court appearance. It might be said that nothing more is required of article 5(1)(c) because the lawfulness of a detention after the first court hearing can be reviewed under article 5(3) and (4) and arbitrary detention avoided in that way. But I do not consider that the scope of article 5(1)(c) is limited to detention pending the first court hearing. If it were so limited, there would be a gap in the protection afforded by article 5: it would permit detention when the investigating authorities no longer have a reasonable suspicion that the alleged offence has been committed. Article 5(3) and (4) would not fill the gap effectively in all circumstances. A period of time (possibly substantial) might well elapse between the time when the investigating authorities cease to have a reasonable suspicion and the date of a court hearing, whether the hearing takes place pursuant to court control under article 5(3) or review under article 5(4).

It is well established that article 5(1)(a) to (f) provides an exhaustive definition of the circumstances in which a person may lawfully be deprived of his liberty and should be given a narrow construction: see Lester, Pannick and Herberg Human Rights Law and Practice (3^rd ed) at para 4.5.11. To continue a detention after the investigating authorities cease to have a reasonable suspicion that the offence was committed is bound to lead to arbitrary detention. In my view, article 5(1)(c) legitimises detention which is initiated and continued for the purpose of bringing a person (on reasonable suspicion of having committed an offence) before a court from time to time as may be necessary. There is no need to construe the words “for the purpose of bringing him before the competent legal authority” as referring only to the first court appearance. The wider construction of article 5(1)(c) which I favour is consistent with article 5(3), which requires a person detained in accordance with article 5(1)(c) not only to be brought before a court, but also to be tried within a reasonable time. This means that he may be detained until trial provided that (i) the trial takes place within a reasonable time and (ii) he is detained in accordance with article 5(1)(c) until the date of the trial. This wider construction is supported by the repeated statements by the ECtHR in the context of article 5(3) that the persistence of reasonable suspicion is a condition for the lawfulness of continuing detention.

There seems to have been little discussion in the Strasbourg jurisprudence of the meaning of article 5(1)(c). Most of the cases to which we were referred are article 5(3) cases. There is, however, a passage at para 193 of James which is of some assistance. This was an article 5(1)(a) case, but the ECtHR set out some general principles about article 5, one of which I have mentioned at para 10 above. At para 193, the court said:

“Second, the condition that there be no arbitrariness demands that both the order to detain and the execution of the detention genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5(1)…Where, for example, detention is sought to be justified by reference to Article 5(1)(c) in order to bring a person before the competent legal authority on reasonable suspicion of having committed an offence, the Court has insisted upon the need for the authorities to furnish some facts or information which would satisfy an objective observer that the person concerned may have committed the offence in question.”

The “execution of the detention” is to be contrasted with “the order to detain”. It relates to the continuation or carrying into effect of the detention. It is not limited to the detention at the first court hearing. The decision in Herczegfalvy v Austria (1993) 15 EHRR 437 also provides some assistance. What is relevant for present purposes is that the applicant in that case was detained between 27 May 1978 and 10 January 1979 and later between 3 October 1979 and 9 April 1980. He was already in detention at the start of the first of these periods. The order for his continued detention was confirmed by the domestic court more than once during these periods. The applicant complained inter alia that there had been a breach of article 5(1)(c) in relation to these periods of detention. The court held that there was no breach since the reasons put forward at paras 61 and 65 in justification of the detention (“the suspicion against him and the risks of repetition of offences and absconding”) were well-founded throughout the periods of detention. I accept, however, that it would be wrong to place too much weight on this decision because it seems to have been common ground that article 5(1)(c) applied in relation to the first period: see para 60.

The next question is what article 5 requires to be done where the investigating authorities cease to have a reasonable suspicion that the detained person committed the offence in question. In my view, it must be implicit in article 5(1)(c) as well as article 5(3) that the investigating/prosecuting authorities are required to bring the relevant facts to the attention of the court as soon as possible. In this way, the court can review the situation and order the person’s release if it is satisfied that there are no longer any grounds for the continuing detention.

On the facts of this case, the earliest time when it is arguable that the police ceased to have a reasonable suspicion of the offence was on 19 January 2011 when PC Smith received information from the NDFU that the passport was genuine. The earliest time when the CPS was made aware of this was late on Friday 4 February shortly after the plea and management hearing on the same day. In my view, it is arguable that, by failing to inform the CPS (and thereby the court) as soon as possible after 19 January of the results of the examination by NDFU, the police caused a breach of article 5(1)(c). At the very least, it is arguable that, by failing to inform the court of the position at the plea and management hearing on 4 February, the police were responsible for a breach of article 5(1)(c) in relation to the detention between 4 until 9 February. I see no basis for attributing any responsibility for this to the CPS who were unaware of the results of the examination until late on Friday 4 February and brought the facts to the attention of the court on 9 February.

Mr Southey submits as follows. The ECtHR has repeatedly emphasised that there is a need for “special diligence” when dealing with an accused person held in custody awaiting trial. In Clooth v Belgium (1992) 14 EHRR 717, the ECtHR said at para 36:

“It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the circumstances arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his applications for release and his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5(3).

The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention, but, after a certain lapse of time, it no longer suffices; the Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were "relevant" and "sufficient", the Court must also ascertain whether the competent national authorities displayed "special diligence" in the conduct of the proceedings.”

Mr Southey submits that the state owes those who are detained a positive obligation to exercise “special diligence” to investigate the allegations against them. Since the “state” is not a party in domestic law proceedings, the focus of those proceedings is on the national body which is responsible for the failure to exercise “special diligence” in the proceedings, i.e. in the present case, the police and the CPS.

He says that the judge was wrong to accept the defendants’ case that the only obligation imposed on the state by article 5(3) is to bring an accused person before a judicial authority promptly and thereafter ensure that a trial takes place within a reasonable time. First, he submits that the Strasbourg case law shows that article 5(3) is directed to the conduct of “competent national authorities” and not only “judicial authorities”. Thus, if the investigating or prosecuting authorities fail to act with “special diligence”, that without more constitutes a breach of article 5(3).

Secondly, he submits that, in assessing the liability of the state, the ECtHR is not concerned with the responsibility of individual state agents, but with considering all the acts and omissions of the bodies for which the state is responsible and assessing whether, in their totality, they give rise to a breach of the Convention by the state.

Thirdly, the defendants’ case seeks to elide the structure of the English criminal justice system with that of continental Europe. In the majority of Council of Europe states, criminal proceedings are overseen by a member of the “judicial authorities”, namely investigating magistrates. This is why the ECtHR has, on occasion, focussed on “judicial authorities” in cases such as those relied on by the defendants.

Fourthly, the defendants’ approach gives no weight to the purpose of article 5(3), which is to ensure that there is judicial review of detention and that any detention is genuinely necessary. Mr Southey relies on what the ECtHR said in Kurt v Turkey (1999) 27 EHRR at para 123:

“….the authors of the Convention reinforced the individual’s protection against arbitrary deprivation of his or her liberty by guaranteeing a corpus of substantive rights which are intended to minimise the risks of arbitrariness by allowing the act of deprivation of liberty to be amenable to independent judicial scrutiny and by securing the accountability of the authorities for that act. The requirements of Article 5(3) and (4) with their emphasis on promptitude and judicial control assume particular importance in this context….What is at stake is both the protection of the physical liberty of individuals as well as their personal security in a context which, in the absence of safeguards, could result in a subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection.”

Mr Southey submits, therefore, that article 5(3) requires more than merely bringing an accused person before a judicial authority. The proceedings before the judicial authority must also be meaningful in that it is provided with all relevant information so as to enable it to review fully the legality of continuing detention. Accordingly, where there is a delay in providing a judicial authority with the evidence it needs to carry out a meaningful review, there will be a breach of article 5(3).

Applying these principles to the facts of this case, Mr Southey submits that the judge was wrong to find that the claim for breach of article 5(3) was bound to fail. First, neither defendant appears to have exercised any special diligence in investigating the allegations of the offence. It is at least arguable that the police acted with lack of diligence (i) between 10 December 2010 and 13 January 2011 when the passport was delivered to the NDFU and (ii) between 19 January and 4 February when PC Smith notified the CPS that the passport was genuine.

For the defendants it is submitted that it is the court charged with the review of the detention that must exercise special diligence and it is the decision-making of the court that falls to be examined under article 5(3). They rely, for example, on Matznetter v Austria (1979-80) 1 EHRR 198 at para 12 (“whether…..the Austrian judicial authorities displayed the special diligence which the Convention requires”); Clooth at para 36 (“the national judicial authorities” and “the judicial authorities”); Tomasi at para 84 (“the national judicial authorities” and “the judicial authorities”). I refer to these authorities below.

The defendants say that the only rights conferred by article 5(3) are the right (i) to be brought promptly before a court to consider whether to remand in custody or release; and (ii) to have a trial within a reasonable time or to be released pending trial. They say that Mr Southey’s case is predicated on the assertion of distinct additional rights (iii) to have the investigation conducted with special diligence and (iv) to have any potentially exculpatory evidence obtained and processed with special diligence. They say that the attempt to assert rights (iii) and (iv), based on references to “special diligence” in the Strasbourg jurisprudence in the context of complaints about the length of time to trial, is misconceived. The case law goes no further than elucidating what is to be understood by “a reasonable period of time”: it does not articulate a distinct and free-standing right.

Mr Southey seeks to derive support for his submission from various references to “special diligence” in the case law. It is necessary to examine these references with care. In Matznetter, the applicant was arrested and detained for 2 years and 2 months in connection with suspected participation in a fraud. His claim was that his detention on remand had lasted longer than the “reasonable time” provided for in article 5(3). It was in that context that the ECtHR said at para 12:

“It remains to see whether in this case the Austrian judicial authorities displayed the special diligence which the Convention requires in the case of a detained person.”

The court then said that the length of the claimant’s detention was not due to the slowness of the preliminary investigation and that no criticism could be made of the judicial authorities’ conduct of the case. The length of the investigation was justified by the complexity of the case. The ECtHR concluded that the length of the claimant’s detention did not contravene the “reasonable time” requirement of article 5(3). It was in the context of deciding whether there was a breach of that requirement that the court considered, inter alia, whether the judicial authorities (who in that case also were responsible for the preliminary investigation) had acted with special diligence. The question of whether there had been special diligence was relevant (and only relevant) to whether there had been a breach of the obligation on the judicial authorities to try the accused person within a reasonable time.

In Wemhoff v Federal Republic of Germany (1979-80) 1 EHRR 55, the applicant complained that his pre-trial detention had been in breach of article 5(3) on the grounds that the period of more than 3 years was not reasonable. At para 16, the ECtHR said that the detention could not be in breach of article 5(3) unless the length of the detention had been “due either (a) to the slowness of the investigation…or (b) to the lapse of time between the closing of the investigation and the preferment of the indictment…or between then and the opening of the trial or finally (c) to the length of the trial”. At para 17, the court concluded that no criticism could be made “of the conduct of the case by the judicial authorities”. It said:

“The exceptional length of the investigation and of the trial are justified by the exceptional complexity of the case and by further unavoidable reasons for delay. It should not be overlooked that, while an accused person in detention is entitled to have his case given priority and conducted with particular expedition, this must not stand in the way of the efforts of the judges to clarify fully the facts in issue, to give both the defence and the prosecution all facilities for putting forward their evidence and stating their cases and to pronounce judgment only after careful reflection on whether the offences were in fact committed and on the sentence.”

I accept the submission of Mr Donmall that the reference to “particular expedition” and “priority” relates to the court’s decision-making in arranging the trial and determining questions of remand in the context of the article 5(3) right to have a trial “within a reasonable time” if the accused person is detained or to be released.

In Clooth, the applicant was arrested and remanded in custody by the investigating judge on suspicion of murder and arson. He was detained for more than 3 years before being released on the grounds that there was no case to answer. Numerous investigations were undertaken, but there were periods of delay when the proceedings stood still. The applicant complained that there had been a violation of article 5(3). I have referred at para 22 above to what the ECtHR said at para 36 of its judgment.

The court then examined the reasons given by the Belgian Government in justification of the length of the detention. These included the danger of reoffending; the fact that the applicant had contributed to the length of the inquiry (by changing his story and obliging the investigators to undertake new inquiries); the risk of collusion and intimidation of witnesses; and the risk of the applicant absconding. As to these points, the court held that (i) the “competent courts” should not have been persuaded to accept that there was a risk of reoffending more than nine months after the commencement of the detention without “an accompanying therapeutic measure”; (ii) after a period of time, the requirements of the investigation no longer justified the continued detention; (iii) the risks of collusion and intimidation diminished with the passage of time as the inquiries were carried out; and (iv) the ECtHR was not persuaded that the fear of absconding was well-founded. In addition, the court said that there were delays in the investigation. For example, the investigation slowed down significantly from January to October 1985 on account of the repeated changes of investigating judge; and there were lengthy delays before a report was lodged and before the identification of an anonymous witness.

In the light of all these considerations the court found that the length of the detention exceeded a reasonable time. It is clear that the considerations that were taken into account by the ECtHR were the factors that the national judicial authorities were required to take into account in deciding whether to remand the accused person in custody or to release him on bail. That is consistent with the approach stated in the second part of para 36 of the judgment.

Tomasi was similar to Clooth. The applicant was charged with several serious offences. The investigation and trial which led to his acquittal lasted 5 years and 7 months during which time he was kept in detention. He unsuccessfully made numerous applications to be released. There were two periods lasting more than one year each when the investigation was delayed by the judicial authorities and the public prosecutor. He complained inter alia that there had been a breach of article 5(3). The ECtHR reviewed the conduct of the proceedings in order to determine whether the length of the detention was unreasonable. It considered issues such as whether (i) the case was complex; (ii) “the authorities had consistently displayed due diligence”; and (iii) the applicant himself had contributed to the delay. The court concluded at para 102 that:

“The Court fully appreciates that the right of an accused in detention to have his case examined with particular expedition must not unduly hinder the efforts of the courts to carry out their tasks with proper care. The evidence shows, nevertheless, that in this case the French courts did not act with the necessary promptness. Moreover, the principal public prosecutor at the Court of Cassation acknowledged this in his opinion of 5 June 1991 before the Compensation Board: the investigation "could have been considerably shortened without the various delays noted", in particular from November 1983 to January 1985 and from May 1986 to April 1988 (see paragraph 41 above). Accordingly, the length of the contested detention would not appear to be essentially attributable either to the complexity of the case or to the applicant’s conduct.”

In all these cases, the focus of the ECtHR is on the reasons advanced in justification of the domestic court’s decision not to release the detained person. The references to “special diligence” do no more than inform the question of what is a reasonable period of time until trial. This is made particularly clear by what the ECtHR said in Clooth at para 36 (quoted at para 22 above). It falls in the first place on the national judicial authorities to ensure that pre-trial detention does not exceed a reasonable time. It is on the basis of the reasons given by the domestic court, the true facts mentioned by the applicant in his applications for release and his appeals that the ECtHR “is called upon to decide whether or not there had been a violation of article 5(3)”.

There is further support for this view in the useful summary of the Strasbourg jurisprudence to be found in McKay v UK (2007) 44 EHRR 41. The ECtHR said that at the initial review of arrest and detention, the court must be capable of examining lawfulness issues and whether there is a reasonable suspicion that the arrested person committed the offence. It concluded by saying at para 45:

“In sum, domestic courts are under an obligation to review the continued detention of persons pending trial with a view to ensuring release when circumstances no longer justify continued deprivation of liberty. For at least an initial period, the existence of reasonable suspicion may justify detention but there comes a time when this is no longer enough. As the question whether or not a period of detention is reasonable cannot be assessed in the abstract but must be assessed in each case according to its special features, there is no fixed time frame applicable to each case."

I therefore accept the submissions of Mr Johnson and Mr Donmall that the obligation of “special diligence” is imposed on the courts and not on authorities such as the defendants. We have not been shown the source of the phrase “special diligence” or any authority which explains the rationale for it. It seems to me that the explanation must lie in the gravity for the individual of a deprivation of liberty and the imperative of preventing arbitrary detention. That is why it is particularly important that a court that is charged with the responsibility of monitoring the detention of an individual who has been arrested on suspicion of commission of an offence must conduct the proceedings with particular expedition or special diligence.

That is not, however, to say that the conduct of the investigating/prosecuting authorities is irrelevant to article 5(3). It is relevant in two ways. First, as the Strasbourg jurisprudence shows, lack of diligence on the part of those who are responsible for investigating the case and preparing for trial will always be relevant to the question of whether the court has conducted the proceedings with “special diligence” and whether a detention has been for an unreasonably long period. It is the duty of the court to grant bail where a detention has been for an unreasonably long time. What is unreasonable will depend on all the circumstances, including the time taken by the investigating authorities (where these are distinct from the court). If delay on the part of the investigating/prosecuting authorities causes the court to fail to conduct the proceedings with special diligence, then those who are responsible for the delay will be responsible for the breach of article 5(3).

Secondly, if the investigating authorities fail to bring to the attention of the court material information of which the court should be made aware when reviewing a detention, this may have the effect of causing a decision by the court to refuse bail to be in breach of article 5(3). The investigating authorities must not prevent the court from discharging its duty of reviewing the lawfulness of the detention fairly and with a proper appreciation of all the relevant facts of which the authorities should make the court aware. Unless this is done, there is a risk that the court will make decisions which lead to arbitrary detention in breach of article 5(3). We were shown no authority which directly supports this proposition. But there is useful analogous authority in relation to article 5(4).

For example, in Musial v Poland (2001) 31 EHRR 29, the ECtHR was concerned with an applicant who, relying on article 5(4), complained that his continued psychiatric detention was unreasonably long. The domestic court which ordered the applicant’s detention had regard to a medical opinion which was based on a clinical examination which had taken place 11 months earlier. The court said at para 50:

“As a result, the [court’s] decision was based on medical information which did not necessarily reflect the applicant’s condition at the time of the decision. Such delay between clinical examination and preparation of a medical report is in itself capable of running counter to the principle underlying Article 5 of the Convention, namely the protection of individuals against arbitrariness as regards any measure depriving them of their liberty.”

In R (Faulkner) v Secretary of State for Justice and the Parole Board [2010] EWCA Civ 1434, a serving prisoner claimed damages for breach of article 5(4) on the grounds that there had been a failure by the Parole Board to conduct a prompt review of his case. The complaint was that the Secretary of State had unduly delayed sending certain reports to the Board. This court held (para 36) that the hearing of the claimant’s case for review was delayed by 10 months. The court concluded (para 47) that there was a breach of article 5(4) for a period of about 10 months.

I have already explained why I consider that there is an arguable case (Mr Southey contends for no more) that the police were responsible for a breach of article 5(1)(c) in relation to the period from shortly after 19 January (when they should have alerted the CPS and/or the court of the results of the NFDU investigation) until 9 February 2011; alternatively, in relation to the period from 4 to 9 February 2011. It is also arguable that the police are liable for breach of article 5(3) in respect of the detention between shortly after 19 January and 9 February. The basis for this is that it is arguable that the police were responsible for the failure of the court to conduct the proceedings with “special diligence” during this period. I should add that it may be the case that, at a trial of this claim, the judge would conclude that the claimant himself was responsible for not making a successful application for bail on 4 February (by failing to provide acceptable details of his residential address). That will be a matter for consideration at trial. For the reasons already given, the CPS can have no responsibility for the detention between shortly after 19 January and 9 February.

The claimant’s case in relation to the period between 10 December 2010 and 19 January is different. Here the complaint is simply that the police and CPS failed to progress the investigation with due expedition with the result that the court failed to conduct the proceedings with “special diligence”. In my view, it is at least arguable that the investigation was conducted in a dilatory fashion: there has so far been no explanation for (i) the failure by the CPS to request a stage two examination between 10 and 31 December 2010 or (ii) the failure by PC Smith to refer the passport to the NFDU between 31 December 2010 and 13 January 2011. The period between 10 December and 4 February was 8 weeks. This was a short period when compared with the periods of detention under consideration in the cases to which I have earlier referred. But it was a long period in the context of this straightforward case. It is significant that NDFU reported the results of its examination to the police within 6 days of receipt of the passport. It is at least arguable that the failures by the CPS and the police caused the detention to be considerably longer than was necessary or justified. In all the circumstances, I consider that it is arguable that the claimant was in custody for an unreasonably long time as a result of the dilatory conduct of the CPS and the police. I should add that I have read what Lewison LJ says at para 58 below and agree with it.

The basis for the claim in false imprisonment is that the claimant’s imprisonment was contrary to article 5 of the Convention and, therefore, was unlawful pursuant to section 6 of the Human Rights Act 1998 (“the HRA”). Mr Southey submits that, although the Inner London Crown Court implicitly accepted the claimant’s continuing detention, it did so only on the basis of what it was told by the defendants. If the court had been told on or shortly after 19 January 2011 that the police believed that the passport was genuine, it would have immediately granted unconditional bail. The police were, therefore, the effective cause of the detention from or shortly after 19 January until 9 February 2011 and are liable in the tort of false imprisonment in respect of that period. Mr Southey also contends that the police and the CPS are liable in false imprisonment for the detention during all or part of the period between 10 December 2010 and 4 February 2011 for the same reasons as they are liable for breach of article 5(3) of the Convention.

In summary, the defendants’ case is that the claim in false imprisonment is misconceived as a matter of law. They say that the tort is committed when D detains C without lawful authority: see, for example, Clerk and Lindsell on Torts (2010) at para 15-23. No tort was committed in this case because neither element of the tort is even arguably made out against either defendant. First, the claimant was not detained by the Commissioner or the CPS. He was detained by Her Majesty’s Prison Service. Secondly, his detention was not without lawful authority. It was justified by the warrant of remand. It is well established that, where an imprisonment is effected through judicial proceedings, liability for false imprisonment “virtually disappears”: Civil Actions Against the Police (2005) 3^rd ed. para 4-051. The reason for the qualification of “virtually” is that there are circumstances in which magistrates who have no jurisdiction to order imprisonment may be liable for false imprisonment: see Civil Actions Against the Police at para 4-052. A classic statement of the law is to be found in the judgment of Willes J in Austin v Dowling [1870] LR 5 CP 534 at 540:

“The distinction between false imprisonment and malicious prosecution is well illustrated by the case where, parties being before a magistrate, the one makes a charge against another, whereupon the magistrate orders the person charged to be taken into custody and detained until the matter can be investigated. The party making the charge is not liable to an action for false imprisonment, because he does not set a ministerial officer in motion, but a judicial officer. The opinion and judgment of a judicial officer are interposed between the charge and the imprisonment. There is, therefore, at once a line drawn between the end of the imprisonment by the ministerial officer and the commencement of the proceedings before the judicial officer.”

Mr Southey submits that this authority provides no answer to the claim for a number of reasons. First, it is a common law decision which was decided long before the coming into force of the HRA and the incorporation of the Convention into our domestic law. If the defendants were responsible for the breach of article 5 and the illegality of the detention, there is no principled basis on which they could escape liability for false imprisonment. Secondly, the decision in Austin is predicated on an assumption that the court which makes the order to remand a defendant in custody exercises independent judgment on the issue. In the present case, the court was unable to exercise independent judgment on whether the claimant should continue to be detained after 19 January 2011. This was because neither defendant put the relevant information that cleared the claimant of the passport offence before the court. Thirdly, the decision in Austin is not binding on this court. Fourthly, this is an area in which the common law should develop to meet the requirements of article 5 of the Convention. He cites Campbell v MGN Limited [2004] 2 AC 457 as an example of the common law developing in this way. In that case, it was held that the common law of breach of confidence did not adequately reflect the requirements of article 8 of the Convention and that article 8 required the tort to be adapted. Lord Hoffmann said that this development was typical of the capacity of the common law to adapt itself to the needs of contemporary life” (para 46). Mr Southey submits that so too human rights law has identified undue delay in criminal investigations as being worthy of protection and this change must influence the scope of the protection afforded by the common law.

Mr Southey also relies on a passage in the speech of Lord Hope in R v Governor of Brockhill Prison, ex p Evans (No 2) [2001] 2 AC 19. The applicant claimed damages for false imprisonment in respect of a period when she remained in prison owing to a mistake in the calculation of her release date. It was held that her continued detention after the correctly calculated date of release was unlawful and she was entitled to damages for false imprisonment. At page 39E, Lord Hope said by reference to article 5: “it is sufficient to show that there was a contravention of that article to demonstrate that the detention was unlawful under domestic law”. Lord Hope had already made the same point at page 38C: “any detention which is unlawful in domestic law will automatically be unlawful under article 5(1)”. These passages do not support the converse proposition that, if detention violates article 5, then it constitutes the tort of false imprisonment. That is not what Lord Hope was saying.

I cannot accept Mr Southey’s submissions. The common law rule stated in Austin has been part of our law for a very long time. It is trite that the common law develops in response to the changing needs of society, but a fundamental change always requires compelling justification. If the position were otherwise, the result would be undesirable instability in the law. The change for which Mr Southey contends is fundamental. It involves crossing the line that has hitherto been clearly drawn between detention as a result of executive decision and detention sanctioned by the court. The only justification advanced for such a change is the introduction of article 5 of the Convention into our domestic law. But there is no support in any jurisprudence for the submission that a breach of article 5 results in liability for the tort of false imprisonment. There is support for the contrary proposition. Thus in R (Faulkner) v Secretary of State for Justice and another [2013] 2 AC 254 Lord Reed (with whom Lord Neuberger PSC, Lords Mance and Kerr agreed) said at para 13.1: “A prisoner whose detention is prolonged as the result of a delay….in violation of article 5(4) of the Convention, is not a victim of false imprisonment”

In any event, I do not accept that article 5 requires the law of false imprisonment to be adapted in the way suggested by Mr Southey. Article 5(5) provides a right to compensation in the event of a breach of article 5. There is no compelling need to change our long established law of false imprisonment to reflect article 5. The analogy with Campbell is unconvincing. The lack of a right of privacy was a real gap in our domestic law.

Nor is it relevant to the common law rule whether the court decides to remand a person in custody without a full appreciation of all the relevant facts. As Mr Johnson points out, the relevant passage in Austin explicitly contemplates that there has been malice on the part of the person making the false charge. Even where the court is misled as to the true facts, that does not mean that it does not exercise its independent judgment in deciding whether or not to order an individual to be detained.

In my judgment, therefore, the claim in false imprisonment is bound to fail.

For the reasons that I have given, I would allow the claimant’s appeal in respect of the article 5 claims against both defendants and dismiss the appeal in relation to the claims in false imprisonment.

I agree with the Master of the Rolls that Mr Zenati’s claim under article 5 does not fail at this stage. Whether it ultimately succeeds will depend on a detailed investigation of the facts. Those facts must be considered realistically and in the round, and the court must not impose impossible burdens on the police or the CPS. They will include the competing demands on the resources of both the police and the CPS at the material times; whether the NDFU would have produced its report in the same timescale if the request had been made earlier; the intervention of the Christmas holiday period; and how quickly a bail hearing could have been arranged once the truth was known. As the Master of the Rolls has said neither the police nor the CPS have yet explained their actions since they preferred to take their stand on legal grounds alone. They may have clear and convincing explanations, but they are for the trial judge to consider. In addition, as the Master of the Rolls has pointed out, the trial judge will have to consider the extent to which Mr Zenati himself was responsible for not making a successful bail application on 4 February.

The only other point I wish to make is that Mr Zenati’s success at this stage does not amount to imposing a general duty of care (or indeed any other general duty) upon the police or the CPS. It applies only in circumstances in which a person is detained in custody despite not having been convicted of anything.

I entirely agree that this appeal should be allowed in respect of the appellant’s claims under Article 5 of the Convention and should be dismissed in respect of the false imprisonment claims. My reasons are essentially those expressed by the Master of the Rolls.

With regard to the claims under Article 5(3) and the distinctions between “judicial authorities” and investigating/prosecuting authorities, it seems to me that those distinctions have perhaps been of little relevance in the jurisprudence of the European Court because in so many countries within that court’s jurisdiction control of the investigation and prosecution processes occurs under the supervision of judicial officers, such as examining magistrates. The strict dichotomy between investigator/prosecutor and the court in such jurisdictions can become blurred and may have little relevance.

For example in Clooth (supra) the court, to my mind, seemed unconcerned to differentiate between the “judicial authorities” and the “national authorities” generally, as appears from the second paragraph of the passage from that case quoted by the Master of the Rolls in paragraph 22. Although in that same paragraph it seems that the European Court, being concerned to examine the discharge of the national judicial authorities’ duty to justify the deprivation of liberty, went on to say that the European Court must also ascertain whether the competent “national authorities” displayed the requisite diligence in the conduct of the proceedings. The exercise, it seems, was a composite one.

Similar observations derive from Tomasi (supra) in which the public prosecutor’s admission of delays in the investigative process contributed significantly to the conclusion that the French courts had not acted “with the necessary promptness”.

Therefore, I agree, as the Master of the Rolls says in paragraph 43, that if delay on the part of the investigative/prosecuting authorities causes the court to fail to conduct the proceedings with special diligence then those who are responsible for that delay will be responsible for the breach of article 5(3). Accordingly, in my view, it is not necessary to draw fine lines between the courts and authorities such as the defendants in this case for the purpose of examining whether the state overall has contravened article 5. Where a breach is established, then the particular emanation of the state that has caused the breach will bear the responsibility for it in our domestic law.

I agree too with the remarks of Lewison LJ as to the materiality of the factual investigation that must now be carried out and I would not wish to say more than necessary for fear of clouding the trial judge’s proper assessment of the evidence. However, in line with my views expressed above as to the overall responsibility for a contravention of article 5, in a relatively straightforward investigation such as that apparently required in this case, I agree with the comments of the Master of the Rolls in his conclusions on the article 5(3) claim in paragraph 48 above. The role of “resources” may in the end have relatively little to contribute to the matter: c.f. the problems of “member resources” for the Parole Board in the context of article 5 claims against that body and most recently Parratt v (1) Secretary of State for Justice and (2) Parole Board [2014] EWCA Civ 1478. It was an absence of “member resources” that caused the Parole Board to concede liability under article 5(4) in that case.