Wayne Leighton v Chief Constable Of North Yorkshire Police

This is an application for permission to appeal against the order of Ms Recorder Davies of 26 April 2023 in which she dismissed the applicant/claimant’s claims for damages for false imprisonment, malicious prosecution, misfeasance in public office, trespass to goods, harassment, and for infringement of the claimant’s rights under the European Convention on Human Rights. Her order followed a four-day trial of the issues in which the Recorder heard evidence from the claimant and read evidence from the claimant’s mother and father. She heard oral evidence from four witnesses on behalf of the defendant. In this two-day application I have heard detailed submissions from the claimant who represents himself and from Mr Thomas on behalf of the defendant.

The claims arise from two incidents involving the claimant and officers of the North Yorkshire Police. Those incidents took place 11 October and 29 October 2014. During the course of those incidents, it is the claimant’s case that he was detained unlawfully and that the subsequent criminal proceedings instituted against him were malicious. The motivation for his treatment by the police is set out in paragraph 18 of the Particulars of Claim and amplified in the judgment of the court below following evidence from the claimant on the point. The claimant claims that the police have repeatedly and deliberately abused their powers to his detriment in retaliation for his providing assistance to his friend Mr Burns in respect of a complaint lodged against the North Yorkshire Police with the Independent Police Complaints Commission (IPCC). The Burns complaint related to damage from repeated police raids on Mr Burns’ property, damage caused to Mr Burns’ property and the return of property belonging to Mr Burns’ father. In the Particulars of Claim, the claimant states that the defendant has attempted to shut down the claimant’s complaint by various unlawful means which were instigated by the same officer, DCI Fincham. The abuse included unlawful local investigations all of which heavily involved DCI Fincham. The claimant has been successful in a number of challenges arising from this abuse and he has instituted separate civil proceedings in which he is claiming just under £100,000. The claimant asserts that the motive for the incidents which are central to this claim was the defendant’s intention to intimidate him generally and prevent him from pursuing his civil litigation. At the centre of the abuse is DCI Fincham who has featured heavily in the claimant’s submissions over the past two days.

The claimant informed the Recorder that he believed that the defendant had subjected him to covert surveillance which had extended to the monitoring of his own and his parents’ communication suppliers. Again, the person underlying this process is DCI Fincham. The extent of the operation has taken such a toll upon the claimant that he was forced to leave this country and claim asylum in Sweden. He told the Recorder that he spent a period of time detained in refugee camp in Sweden. The claimant has exhausted his remedies in respect of this surveillance although he remains dissatisfied with the outcome.

As the claimant has been reminded, for the grant of permission, I must be satisfied that the ground has a real prospect of success or that there is some other compelling reason for my granting permission. At the outset of the hearing, I reminded the claimant that an appeal was a review of the hearing below and not a rehearing, and an appeal will only be allowed if the judge is satisfied that it is wrong or unjust because of some serious procedural or other irregularity.

Before dealing with the grounds of appeal, I set out below the central conclusions of the Recorder and her reasoning. At paragraph 22 of her judgment, she set out the issues which she had to determine, and it is not suggested by the applicant that her list was anything other than accurate and comprehensive. She identified the issues for her determination as follows:

In her comprehensive judgment, the Recorder set out the elements of each of the causes of action in respect of which she had to be satisfied. I pause to note that the claimant accepts that the Recorder directed herself correctly as to the legal ingredients of each cause of action.

The first incident giving rise to this claim took place on 11 October 2014 when the claimant was stopped whilst driving his private hire vehicle, a blue Vauxhall Astra. The Recorder set out the facts as she found them to be at paragraph 17 of her judgment, noting that there was very little dispute concerning what happened. 11 October 2014 was a York Race Day and so a temporary “Road Closed” sign had been positioned from 4pm creating a one-way system near the entrance to the racecourse and preventing traffic from entering Campleshon Road at the junction with the County Stand. PC Gatecliffe was on uniformed duty at the closure sign on a bicycle. The claimant was seen by PC Gatecliffe to drive his car down the road which had been closed and PC Gatecliffe followed him on his bicycle. The interaction between the claimant and PC Gatecliffe was captured on body worn footage. The claimant was questioned about why he had not observed the road closed sign, he was cautioned and told that he was not under arrest. The claimant then drove off. PC Gatecliffe followed the claimant and removed the keys from the ignition, informing he claimant that he should pull up further down the road so that he could speak with him about motoring offences and to provide details. His keys having been returned and having pulled over in a safe place, the claimant was asked to provide his name, address, and date of birth. The claimant was later informed that he would be the subject of proceedings for failure to comply with a traffic sign.

The Recorder heard evidence from PC Gatecliffe who she found to be a “straightforward, no-nonsense witness” She found him to be an obviously experienced officer who was “clearly doing his best to remember events and report them accurately.” She accepted his evidence that he had removed the ignition keys because he was concerned that the claimant would try to drive away again and that if he did so he may risk the safety of road users, in particular pedestrians, given the road conditions on a race day. She accepted his evidence that the claimant’s behaviour in driving off had made him suspicious that the car may have been stolen or not licensed and that that such conversation as had taken place before the removal of the keys had been too short for PC Gatecliffe to have obtained the necessary identification details. She found that PC Gatecliffe’s action in removing the ignition keys was reasonable in the circumstances in the prevention of the commission of crime and in the exercise of his powers under section 3 Criminal Law Act 1967. She found that there had been no unlawful detention and no unlawful interference with goods.

In respect of the claim for malicious prosecution arising from the incident on 11 October 2014, the Recorder heard evidence from John Halstead, a retired Detective Chief Inspector who was the civilian member of staff who made the decision to prosecute the claimant for the offence of failing to observe and comply with a road traffic signal. She found Mr Halstead to be a “credible and straightforward” witness whose evidence she accepted in its entirety. She accepted that he was working as the Dedicated Decision Maker and Court Presentation Officer, that he had reviewed the evidence including the body worn footage and had applied the two-stage test for prosecution. She accepted that he was following an expedited process whereby he might be required to review up to 60 or more decisions in one day. Mr Halstead had agreed that the charge sheet did not bear his name but that of the head of department, Ms Jane Took. However, he said that Ms Took had taken no part in the decision to prosecute and that all documents which resulted in a postal requisition bore her name and signature. The Recorder accepted that Mr Halstead was the person who made the decision to prosecute the claimant and that the different signature on the postal requisition was a matter of to do with administration and not substance. The Recorder found no evidence that Mr Halstead was part of any orchestrated campaign against the claimant. She accepted that he did not know the claimant, or PC Gatecliffe or DCI Fincham.

The Recorder found that there was reasonable and probable cause to prosecute the claimant and that there was no evidence of malice or bad faith on the part of Mr Halstead. She accepted his evidence that he did not know DCI Fincham and that he made the decision to prosecute on the basis of the material which was before him and applying his training. On this basis she dismissed the claim for malicious prosecution.

The second incident took place on 29 October 2014. On this occasion, the claimant was seen by PC Marshall to be driving at a speed of 40 or 50 mph on his approach to a roundabout at Heslington Lane. PC Marshall became suspicious and followed the car. As the car slowed down through a chicane, PC Marshall could see that the driver was not wearing a seatbelt. When questioned about the seatbelt, the claimant became argumentative and defensive and aggressive. It was common ground between the parties that the claimant was then unlawfully detained in the back of PC Marshall’s police van and wrongly subjected to an interview.

The Recorder found that PC Marshall had no prior knowledge of the claimant or his car and that the only reason why PC Marshall had stopped the claimant’s car was because of the speed at which he had seen it travelling. She accepted that PC Marshall genuinely believed that the claimant was not wearing a seat belt and that this belief was both honest and reasonably held. She found that the conversation between PC Marshall and the claimant became heated when the claimant insisted that he was exempt from wearing a seatbelt and that the motivation for detaining the claimant in the van was because of a threatened breach of the peace. She found no ulterior motive for PC Marshall’s actions and that the only discussion which took place in the van concerned the wearing of a seatbelt. She concluded that whilst PC Marshall was an experienced officer he had not known that, by escorting the claimant to the van and interviewing him there, he was doing anything unlawful. She found that he was dealing with a dynamic situation and that the claimant’s response to the situation was challenging. She found that PC Marshall acted in the honest but mistaken belief that he had the power to detain the claimant in the circumstances. She went on: “There is no evidence before me from which I could reach the conclusion that PC Marshall acted in bad faith in the sense of the exercise of public power for an improper or ulterior motive or that he acted knowing that he had no power to do the act complained of and that the act would probably injure the claimant.” She rejected the claim for misfeasance in public office on the part of PC Marshall.

She rejected the claim for malicious prosecution arising from the events of 29 October 2014. She heard evidence from Ms Hayley Jameson who was the Dedicated Decision Maker and Court Presentation Officer. The Recorder found her to be a straightforward, consistent, and credible witness. She gave considered answers to all the questions put to her and had been prepared to agree with Mr Leighton on some points. Ms Jameson said that she made the decision to prosecute the Claimant for not wearing a seatbelt as required under Regulation 5(1) (a) of the Motor Vehicles (wearing seatbelts) Regulations 1993 contrary to the provisions of the Road Traffic Act and Road Traffic Offenders Act on 29 October 2014. The Recorder found that Ms Jameson appeared to her to be very straightforward in accepting that she did not remember making the decision. She confirmed that she did not know PC Marshall or Mr Leighton. A number of points had been put to Ms Jameson in cross examination by the claimant and the responses provided by Ms Jameson were set out in the judgment.

The Recorder concluded at paragraphs 131, 133 and 134 of the judgment that she did not accept the claimant’s case that Ms Jameson was a dishonest and unreliable witness. The Recorder stated her conclusion that Mrs Jameson was “being asked to recall one charging decision, made over eight years ago when she was relatively new to her role. I find that Ms Jameson gave her evidence in an honest and very straightforward way and did her best to answer Mr Leighton’s questions. Mr Leighton referred Ms Jameson to documentation and codes that she had not seen before. I accept her evidence that she had not been trained that they applied to her decision making. I accept the entirety of Ms Jameson’s evidence.” The Recorder was satisfied that Ms Jameson had no knowledge of DCI Fincham and was acting alone when she made her decision to prosecute the claimant. She accepted Ms Jameson’s evidence as to how she was trained to take decisions and which codes of practice she had been trained to follow. She said that the claimant had not satisfied her that there was no reasonable and probable cause for his prosecution. She found that there were sufficient grounds on the information before Ms Jameson to believe that the claimant was probably guilty of an offence and that this was sufficient. Ms Jameson had not tested the full strength of the defence, but she was not required to do so. She accepted that Ms Jameson had no knowledge of the contents of the complaint against PC Marshall and that Ms Jameson had been entitled to accept the evidence before her at face value.

The Recorder went on to consider the claimant’s case on malice. She found no evidence to support the claimant’s case that there was either a direct or indirect link between DCI Fincham and Ms Jameson. She referred to the circumstantial evidence relied upon by the claimant but concluded that it was too remote for her to be able to infer that the motive underlying the decision to prosecute the claimant was to intimidate him. She set out that she remained “unclear how Mr Leighton suggests that DCI Fincham being the real actor behind the decision to maliciously prosecute him, exerted any influence over Mrs Jameson whom I have found to be the decision maker.”

The Recorder addressed the claim in harassment in paragraphs 137 to 154 of her judgment. She found the claim to be fundamentally misconceived for a number of reasons, stating that the actions said to amount to harassment (including those involving PC Gatecliffe, PC Marshall, Mr Halstead, and Ms Jameson) had been taken for the purpose of preventing or detecting crime. She dismissed the claim for damages under the ECHR on the basis that they had not been sufficiently articulated by the claimant. The claimant had informed her that he had had insufficient time to formulate his claim but had declined to take the additional time offered him in order to explain his arguments.

There are four overlapping grounds of appeal. The claimant alleges that the Recorder failed to give sufficient reasons (or any reasons) in respect of a number of aspects of his claims. He alleges that the Recorder made a number of errors of law and a number of errors of fact and that her conduct of the trial was unfair. He also appeals against the costs order which was made following the trial.

I deal with the claimant’s major grounds of appeal below. For the avoidance of doubt I have considered all of his grounds and points (those made in writing and in his oral submissions) and find that none of those grounds or points carry a realistic prospect of success or demonstrate a proper basis for the grant of permission. I start by considering the alleged failure by the Recorder to give reasons, or sufficient reasons for her findings. I pause to note however that it is difficult to deal with the grounds discretely and under particular labels. The grounds at times merge and allegations of insufficiency of reasons morph into errors of law or fact: what are labelled by the claimant as reasons failures may be better described as an alleged error of law or fact.

It is common ground between the parties that the Recorder had a duty to give reasons for reaching her decisions in relation to disputed matters of fact and law and that the extent of the duty or the “reach of what is required to fulfil it” depends upon the subject matter. As the court stated in English v EmeryReimbold & Strick Ltd [2002] EWCA Civ 605, in giving reasons the judge does not have to deal with every argument presented by either side nor does the judge need to explain every factor relevant to the appraisal of the evidence.

The claimant is correct in stating that, in respect of some of the points which were advanced at trial, the Recorder declined to make findings one way or the other. However, as she stated, this was because those findings would not have been material to the issues before her. For example, in respect of the claims for malicious prosecution, the Recorder focussed upon the salient elements of the tort and correctly identified that a large number of the points made by the claimant alleged procedural irregularities, but that procedural irregularity was not an element of the tort. Those asserted irregularities included (for example) the alleged failure to obtain written consent for the prosecution; an alleged breach of CPR 7.4(3)(c) requiring the person who authorised the prosecution to identify themselves on the postal requisition; a failure by the prosecution to certify that the disclosure obligations had been adhered to and the incomplete nature of, and the question mark over the authorship of, the MG6 forms.

The Recorder declined to make findings as to whether there had been procedural irregularities. She explained that this was because they were not material to the decision which she had to make as to whether there was reasonable and probable cause for the prosecutions and, if so, whether there was any evidence that either of the prosecutions were motivated by malice. She set out at paragraph 91 that she had accepted the evidence of Mr Halstead and that she was entirely satisfied that he was not part of any campaign orchestrated by DCI Fincham against the claimant. She set out in paragraph 131 to 135 why she rejected the claim for malicious prosecution arising from the second incident. She accepted the evidence of Ms Jameson in its entirety noting that Mrs Jameson was being referred to documents which she had not seen before and that she had not been trained that they applied to her decision-making.

Having reviewed the judgment and considered the claimant’s submissions I am satisfied that the judge reached conclusions on the salient issues and provided sufficient explanation for her underlying reasoning. I make the following observations.

In summary, there is no real prospect of the claimant succeeding on ground one. It was not incumbent on the Recorder to make findings on every alleged procedural irregularity, only those which were relevant to the issues which she had to determine. The findings which she made were sufficient.

As to the alleged errors of law made by the Recorder, I can deal with them succinctly.

The appellate court will only interfere with a finding on the facts where, based on the totality the evidence, the appellate court is satisfied that the finding is plainly wrong based on the totality of the evidence. A summary of the relevant principles is set out in Staechelin & Ors v ACLBDD Holdings Ltd & Ors [2019] EWCA Civ 817 at [29]-[39]. This application is not a rehearing. It is not an opportunity for the claimant to re-argue points that were argued at length before the trial judge. I am not satisfied that any of the challenges to findings of fact made by the Recorder have any prospect of success. Notwithstanding the claimant’s detailed attention to the transcripts of the evidence and other documents, I find that his challenges do not undermine the Recorder’s conclusions or reasoning. In particular they do not undermine her assessment of the credibility of Mr Halstead and Ms Jameson, nor do they undermine her acceptance of the evidence of PC Gatecliffe or PC Marshall’s evidence. The judge had the benefit of seeing and hearing the witnesses, including searching cross examination. She found the defence witnesses to be truthful and honest if at times mistaken in their understanding of various procedures.

The Recorder was conspicuously fair in her treatment of the claimant at trial. The claimant made a lengthy opening address which formed part of his evidence in chief (in conjunction with his witness statement). The suggestion that there was an inequality of arms because the claimant’s parents were unable to amplify their witness statements is quite wrong. The parents had provided witness statements which stood as their evidence, and they were not cross-examined. The officers were subjected to substantial challenge and the Recorder was generous in the amount of time she allowed the claimant in cross-examination. I accept that there the claimant was asked to move on in his questioning after it became clear that the witness was unable to provide a response, but this trial management was reasonable, particularly as I am informed that the matters were then dealt with in re-examination. I also accept that during the course of cross-examination some evidence emerged which had not been foreshadowed in witness statements. But this is not unusual. There are bound to be some details which emerge for the first-time during cross-examination. If the claimant had required time to deal with any new points, then he could have asked for time. I am not aware that any such request was made.

I am not satisfied that the claimant was placed at any disadvantage by reason of the defendant’s pleadings. The claimant knew the nature of the defendant’s case in respect of each cause of action. He was aware, or ought to have been so, that he was required to prove (in respect of the claim for malicious prosecution) that there was no reasonable and probable cause for both prosecutions and that the prosecutions were malicious. He could not have been taken by surprise that he was required to prove these elements given the clear denial of liability in the Amended Defence.

I deal finally with the Recorder’s decision on costs. Putting it shortly he determination on costs was if anything generous to the claimant. The Recorder required the claimant to bear only 85% if the trial costs in spite of the fact that he lost on every point which was in issue at the trial. Any arguments concerning the quantum of costs can be taken up by the claimant on detailed assessment. But it seems to me that the order for costs which was made by the judge was just and proportionate and, in the circumstances, generous to the claimant.

For the reasons set out above the application for permission to appeal is refused.