Frugal v Nottinghamshire Police

This is an appeal against the Order of HHJ Godsmark QC, dated 24 April 2015 pursuant to the November 2014 judgment of Mr Recorder Willetts.

This is a short form judgment: BS (Congo) SSHD [2017] EWCA Civ 53; Deutsche Trustee Company Ltd v Cheyne Capital Management (UK) LLP [2016] EWCA Civ 743. The appeal raises no matter of precedent or of general significance. There is narrow dispute on the interpretation of the law, resolved without difficulty.

I would dismiss the appeal.

In summary, intelligence about a climate change demonstration at a power station on 12 and 13 April 2009 led officers to the Iona School, Nottingham, where protesters including the Appellant gathered prior to the demonstration. The Appellant was arrested by PC Caldecott on suspicion of conspiracy to commit aggravated trespass and/or criminal damage at the power station, kept in custody for about 20 hours but not charged. He brought a claim for false imprisonment alleging that the intelligence which led to his arrest was provided by an undercover police officer, PC Kennedy, acting as an agent provocateur.

The Court misdirected itself when determining whether a police officer is an ‘agent’ and, as to false imprisonment, misdirected itself as to the ingredients of such a claim and its conclusion on whether intelligence provided to the arresting officer were false was irrational.

The Recorder in reliance upon Archbold’s correct citation of the ratio in R v Looseley (Attorney General’s Reference, No.3 of 2000) [2001] 1 WLR 2060 (‘Looseley’) found that PC Kennedy was not an agent, the Appellant having failed to demonstrate that he was lured by PC Kennedy into committing the offence.

That finding of fact this court will be slow to overturn. Nothing advanced persuades me that the high hurdle set for the Appellant has been cleared.

The finding is not an error of law. The Recorder was entitled to focus upon the opportunity presented to the Claimant as opposed to one which notionally might have been presented to others, or generally.

The Appellant argued that the correct test was whether PC Kennedy did more than create an unexceptional opportunity for the commission of the offence. He relied on Looseley, at paragraphs 21-23.

The Appellant contends that PC Kennedy was not purely a supporter of the protest but in an active organisational role and that the Appellant put himself at risk by remaining in the Iona once reassured by PC Kennedy that the police had left.

There are insurmountable difficulties in the way of this construction of events.

PC Kennedy neither enticed nor lured the Appellant into the protest. The Appellant, unaware of PC Kennedy’s involvement, decided to travel to Nottingham to join the protest. He admitted he had taken part in other actions with groups in Nottingham and in Sheffield. He was arrested at the Iona, having learned on arrival of the action planned, his clear intention involvement in planning pre-protest.

Before he knew what the protest was the Appellant admitted a desire to be involved in it. There was no clear evidence that “but for” PC Kennedy’s involvement the protest would not have been pursued. On the evidence the Appellant conspired to commit aggravated trespass before he was aware of PC Kennedy’s involvement.

Albeit the Appellant was reassured by PC Kennedy about the departure of police, I reject the argument that the words used – “the police have gone” – were a lie since Kennedy remained and was a policeman. That would be a strained artificial construction of language used in the context of how matters appeared and were designed to appear, that is that Kennedy was a civilian. I am not persuaded that that reassurance was the sole reason the Appellant stayed.

The Recorder was entitled to conclude that PC Kennedy did no more than might have been expected from others in the circumstances and entitled to find PC Kennedy was not an agent.

The Appellant argued that the arrest was unlawful as founded on intelligence from an undercover officer acting as an agent. The Recorder considered an arrest would be unlawful where a deliberate lie was told by an informant to an arresting officer so as to encourage an arrest, and he concentrated on PC Caldecott’s knowledge at arrest and on what he saw when he arrived at Iona.

I can deal briskly with the argument advanced about the burden of proof as to the lawfulness of arrest. It is on the Respondent, who must justify arrest as based on reasonable grounds and not on false evidence: “Copeland v Commissioner of Police of the Metropolis [2014] EWCA Civ 1014 (‘Copeland’)”). The burden was discharged on these facts by PC Caldecott’s independent assessment based on what he saw and heard on arrival at Iona.

The Appellant submits that the Recorder erred in failing to consider and apply R(M) v Hackney LBC [2011] 1 WLR 2873 (“Hackney”). Toulson LJ said:

“A may be responsible for the false imprisonment of B where A directly caused B’s act and A’s was without lawful justification.”

The Respondent contends that PC Kennedy provided truthful intelligence of a planned protest.

False imprisonment on these facts turns on whether PC Caldecott had reasonable grounds for suspecting that the Appellant had committed an offence, as the Recorder correctly concluded.

The Recorder found nothing to suggest that PC Kennedy gave false evidence to Nottingham Police and/or indirectly to PC Caldecott, finding the evidence provided all patently true. The Appellant describes that conclusion as irrational, overlooking PC Caldecott’s ignorance of the extent of PC Kennedy’s role in planning and organising.

Once again he faces insuperable difficulties. PC Caldecott’s ignorance did not make the information false. That PC Kennedy’s role went undisclosed did not make the substance of the information untruthful and I have identified nothing to suggest that PC Caldecott was as a consequence misled.

In any event he did not act on this alone. An earlier briefing explained that a group had gathered at Iona and intended to break into the power station. At Iona PC Caldecott saw preparations for a break-in. He had sufficient to afford him reasonable grounds for suspecting a conspiracy. The Recorder was entitled to conclude that, at arrest, PC Caldecott did not know a successful prosecution would be impossible.

Failure to refer to Hackney is not an error of law. There the Court found the claimant's detention unlawful as it was directly caused by the conduct of a mental health professional and there was no lawful justification for the arrest. By contrast PC Caldecott’s actions could be justified. In any event, the Recorder was astute to whether PC Kennedy had directly caused the arrest, so the test in Hackney was applied whether or not reference were made to it.

The Recorder was entitled to conclude that PC Kennedy did not provide false evidence to the Respondent and/or PC Caldecott and to find no direct connection between the intelligence and the actions of PC Caldecott in arresting the Appellant.

It was open to the Recorder to conclude that PC Kennedy was not an agent, and to reject false imprisonment.

I would dismiss the appeal.

I agree.

I also agree.