Christopher Watson v Chief Constable of Humberside Police

Introduction

The appellant appeals against the decision of Mr Recorder Brain, following a trial, to dismiss the appellant’s claims for assault, false imprisonment and malicious prosecution.

Two police officers, PC Robert Neil David Crouch and PC Antony John Corden, attended the appellant’s home in Scunthorpe late on the evening of Wednesday 21 June 2017 as a result of a telephone call made by the appellant to Humberside Police in which the appellant, who had a history of various mental disorders, stated his intention to take a knife and cut his throat as a result of abuse which he had received while walking home earlier that evening.

The officers found the appellant sitting at a table in the communal lawn area behind his and neighbouring homes. The appellant had his crutches with him. On the table were a bottle of cider and a large knife, which the appellant picked up. There was a dispute on the evidence, to which I will return, as to what the appellant did with the knife. The officers told the appellant to drop the knife. He did not do so, although he did lower the knife to his side. At some point, one of the appellant’s neighbours, Herbert James Newcombe, arrived.

PC Crouch deployed his taser. PC Corden kicked the appellant to dislodge the knife from his hand. PC Crouch performed a double palm strike on the appellant. The appellant was on the ground when PC Crouch applied handcuffs. He arrested the appellant and cautioned him.

The officers consistently maintained, from shortly after the incident in 2017 to the trial of this claim in 2023, that the appellant had attempted to attack them with a knife. Thus, for instance:

After the incident, the appellant was taken to Scunthorpe General Hospital and then to Scunthorpe police station, where he was charged with two offences before being released on 22 June 2017. Earlier that day, PC Emam had spoken to Mr Newcombe. No statement was taken on that occasion, although the recorder found that Mr Newcombe did not refuse to make a statement.

On 28 June 2017 the case was referred to the Crown Prosecution Service. The first of the two charges, possessing a bladed article in a public place, was dismissed on 18 July 2017 because the appellant had not been in a public place on the night of the incident.

The allegation that the appellant had lunged at the officers with a knife was relied on in the prosecution of the appellant on the second charge, for an offence under section 4 of the Public Order Act 1986 (“the section 4 offence”). Mr Newcombe made a statement to the police on 27 November 2017 in which he said that the officers did not try to speak to the appellant at all and that they just acted straight away. The appellant stood trial on 26 November 2018. He was acquitted.

The claim form was issued on 9 July 2020. I need not say anything at this stage about the pleaded claims for assault and battery or false imprisonment. In relation to the claim for malicious prosecution, it is relevant to note that the appellant alleged as follows in paragraph 41 of the amended particulars of claim:

“(a)

The Claimant was prosecuted by the Defendant that is to say that the law was set in motion against him on the criminal charges referenced in Paragraph 26 in circumstances in which the Crown Prosecution Service (“CPS”) were deprived of their ability to exercise independent prosecutorial judgment. The Defendant withheld potentially exculpating evidence in the form of the presence of an independent witness, Mr Newcombe, and the fact that his evidence was consistent with that of the Claimant.

(b)

The prosecution was determined in the Claimant’s favour in that he was acquitted at the Trial, with the charge of possession of a bladed article in a public place having been dropped by the CPS.

(c)

The prosecution was without reasonable and probable cause, including because there was no case that was fit (sic) be tried and:

(i)

The Claimant was an extremely vulnerable elderly person with serious physical disabilities, and of small stature, and no person of ordinary prudence would genuinely believe themselves to be at threat from him, particularly given his physical condition.

(ii)

The Claimant had voluntarily requested police presence to prevent him causing harm to himself, and he was compliant with officers when asked to lower his knife from his own throat.

(iii)

There was an objective lack of evidence to support the prosecution case; no body-worn camera nor CCTV footage was said to exist and there were inconsistencies in the evidence of the police officers; and

(iv)

The only independent witness, Mr Newcombe, entirely supported the Claimant’s version of events.

(d)

The prosecution was malicious in that the Defendant’s officers concocted the case against the Claimant and/or the officers did not honestly believe in the Claimant’s guilt. The Claimant was vindicated at the Trial in that the evidence of the officers was not believed. …”

Unsurprisingly, given that the appellant had not even been charged with affray and had been acquitted of the section 4 offence, the respondent did not advance a positive case that the appellant had been guilty of any offence.

In paragraphs 11 to 16 of the amended defence the respondent set out his account of the events leading up to the appellant’s arrest. Then in paragraphs 28, 30, 31 and 37 of the amended defence the respondent addressed the issues as to the officers’ suspicion and belief and whether they had used reasonable force:

“28.

… PC Crouch, as arresting officer, suspected, and had reasonable grounds to suspect, that the Claimant had committed the offence of affray, in that he had seen the Claimant point a knife in his direction and walk towards him while shouting threats and adopting an aggressive posture. …”

“30.

… PC Crouch, as arresting officer, believed and had reasonable grounds to believe that the Claimant’s arrest was necessary in order to prevent him causing injury to himself or to others, including PC Crouch himself and PC Corden. This belief was based on the Claimant’s own conduct, including holding a knife to his throat and threatening to slit it, and pointing the knife at PC Crouch while moving towards him in an aggressive manner as set out above. The officers had attempted to use steps short of arrest in that they had attempted to speak to the Claimant to persuade him to put the knife down: these efforts were unsuccessful and cut short by the Claimant’s decision to escalate the situation by standing up, pointing the knife at PC Crouch and moving towards him.

31.

It is denied that the officers caused (or, insofar as it is still alleged, contributed to) an unnecessary confrontation. They did not approach furtively or from behind; they did not threaten him with any weapons until after he had begun to act threateningly towards them; they did not refuse to or fail to adhere to the distance he had requested, but had stopped when he asked them to and only moved when he escalated the situation. Prior to the Claimant escalating the situation, their manner was not confrontational or aggressive and they did not treat him as someone suspected of a criminal offence.”

“37.

… The Defendant denies that any force used was more than was reasonably necessary and proportionate in the circumstances as the officers genuinely and reasonably believed them to be, namely that the Claimant was threatening to attack PC Crouch with a large serrated knife.”

The respondent’s case in response to the claim of malicious prosecution was set out as follows in paragraph 40 of the amended defence:

“40.

Paragraph 41 is denied. Without prejudice to the generality of the foregoing:

(a)

Paragraph 25 of this Amended Defence is repeated.

(b)

It is admitted that the prosecution was terminated in the Claimant’s favour;

(c)

It is denied that the Defendant was the prosecutor within the meaning of the tort of malicious prosecution or, in the alternative, it is denied that the Defendant was the prosecutor after the CPS took conduct of the prosecution on or about 28 June 2017;

(d)

It is denied that the Defendant, his officers, employees or agents, acted without reasonable and probable cause in investigating and charging the Claimant, or in respect of any other acts or omissions taken in respect of the Claimant, and paragraphs 8-25 and 28-35 of this Amended Defence are repeated.

(e)

It is denied that the Defendant, his officers, employees or agents, acted with malice in investigating and charging the Claimant, or in respect of any other acts or omissions taken in respect of the Claimant;

(f)

It is denied the Defendant, his officers, employees or agents, withheld evidence as alleged or at all.

(g)

The Claimant is required to prove any losses on which he seeks to rely.”

The trial took place on 3 to 6 April and 24 July 2023. The purpose of the July hearing was to view some CCTV footage which was only discovered after the April hearing. That footage is not relevant for the purposes of this appeal.

The appellant, Mr Newcombe, PC Crouch and PC Corden, amongst others, gave evidence at trial. The witnesses agreed on several aspects of the incident, but disagreed on others. In particular, the appellant’s evidence was that he only held the knife to his own throat and that he did not threaten the officers with it. Mr Newcombe said that he did not see the appellant waving the knife around, lunging at anybody or pointing the knife at anyone. By contrast, the officers’ evidence was in line with the case advanced in the amended defence.

Having dealt in his witness statement with the first part of the incident, when he said that the appellant held the knife to his own neck, was verbally aggressive towards the officers and refused to lower the knife, PC Crouch said as follows in paragraph 29 of his witness statement:

“Although the Claimant continued to be aggressive and seemed really angry and suspicious that we were there my focus was still to help him and I had no intention to arrest him at this point.”

PC Crouch then said as follows in his witness statement:

“31.

Suddenly and without warning, he stood up from the stool with the knife still in his hand. He then pointed the knife directly at me and started to wave the knife around whilst lunging towards me. The Claimant continued to wave the knife in my direction and opened up his chest area by spreading his arms and puffing his chest.”

“33.

The Claimant continued to shout towards me. His whole demeanour was of such anger and it seemed to be completely directed at me.

34.

The speed that the Claimant stood and started moving towards me took me by surprise and I genuinely thought he was going to stab me if I did not take immediate action.

35.

It was at this point that I believed the Claimant was committing an offence, namely that of Affray, however, I was focussed on protecting myself in the first instance.”

“38.

As tactical communications was already used and ineffective I saw no other means of ensuring my safety other than to draw my Taser. As I discharged it, I shouted “Taser, Taser” as per my training.

39.

The effect of the Taser caused the Claimant to stumble backwards slightly and fall onto the stool that he had just stood from. However, it did not seem that the Taser was fully effective as the Claimant was trying to stand back up and still had hold of the knife, staring directly at me.

40.

I then decided to perform a double palm heel strike in another attempt to disarm the Claimant. At or around the same time, I saw PC Corden appear to the right side and he kicked the Claimant’s right hand. I believe this was also done in an attempt to disarm the Claimant.”

“44.

I had considered alternatives, for example returning him to his address or taking him to get the help he initially asked for, however, given the set of circumstances that had taken place and how quickly it had escalated, none of these options seemed appropriate. In any case, in my mind the Claimant had committed an offence and was a risk to himself and other people, therefore, I believe the arrest was proportionate and reasonable.”

The recorder reserved judgment.

At the end of the trial, the recorder asked the parties for submissions on a question which the respondent understood to be:

“What are the legal consequences which would flow from a finding that the real reason for the arrest was that the Claimant had stood up with a knife in his hand in the circumstances set out below (but that he did not lunge at the officers with a knife)?”

I was told that the appellant did not consider this to have been an accurate formulation of the recorder’s question, but I note that the respondent set out this formulation in a submission dated 1 August 2023 and the appellant took no issue with it in his submission dated 11 August 2023.

On 1 August 2023 the respondent submitted as follows on this issue:

“… the task for the Court is to find what factors were operating on the mind of PC Crouch at the time when he decided to arrest. Provided those reasons are sufficient, it does not affect liability if the Court concludes that, following the arrest, the officer embellished his account to rely upon an additional matter which was not present in his mind at the material time.”

In his submission dated 11 August 2023, the appellant submitted as follows on this issue:

“In summary, the Claimant submits that the approach of Cotter J in Alger was correct and consistent with established caselaw. In other words, as noted by Jay J in R (L) v CC of Surrey Police [2017] 1 WLR 2047 at [39]:

…the court does not ask itself whether any police officer could rationally have made been the decision under challenge; it directs itself to the particular decision maker and his grounds.

In turn, it follows, that unless the Court accepts the particular version of events put forward by PC Crouch, it must find that the Claimant’s arrest was unlawful. Since it cannot reasonably do so, it must find that the Claimant’s arrest and battery was unlawful.”

The recorder handed down his judgment on 30 August 2023. In his judgment, he carefully analysed the evidence, identifying those matters which were common ground and making findings on the disputed issues. For a variety of reasons, which he fully explained, but which it is unnecessary to set out in this judgment, he did not find the officers to be reliable witnesses. The summary of the recorder’s factual findings about the incident in paragraph 76 of his judgment included the following:

Consequently, the recorder found as follows (in paragraph 83):

“I find that (sic) PC Crouch’s avowed reason for arrest (because C was waving the knife, threatening him and PC Corden, and moving quickly towards them) not to be credible for the reasons already given. …”

Nevertheless, the recorder found that the arrest was lawful. He said, inter alia, as follows:

“182.

In my judgment, Mr Waite’s submission is to be preferred. In contrast to Alger, the rejection of PC Crouch’s evidence of C lunging and waving the knife does not leave D with no basis upon which to act. It must be open to the court to find what was really in his mind even where rejecting embellishment, particularly where there is much that is not in dispute about the events of that evening: that C was undergoing a mental health crisis, that he had imbibed alcohol and prescription drugs, that he was in possession of a knife, that he had not heeded instructions to drop it and had stood while holding it. There is an artificiality about rejecting outright an officer’s account altogether where it is found to be unsatisfactory in parts and an inability of the court to find what was really operating on his mind per Alexander. This is not to fall into the Alger trap of providing an ex post facto justification which simply was not considered or did not even exist at the time but rather of looking at what happened and what really was operating on the officers’ minds. PC Corden’s account was stripped of PC Crouch’s embellishments to some degree as he did not contend that C issued threats to them (aside from the honest and reasonable but mistaken contention of momentarily pointing the knife) or wave the knife around. However, he did suggest that C moved quickly and closed them down (which evidence I have rejected). The same principle applies in his case- that it is open to the court to find what was operating upon their minds. I see nothing in review of the authorities in Alger that precludes this approach. The focus must be on the decision maker and the actual reasons for his arrest per Alexander, Edwards and R (L).

183.

PCs Crouch and Corden were faced with a dangerous situation. C was issuing threats of self-harm. He had imbibed alcohol and prescription drugs. The officers could not be certain as to the quantity of the consumption. C was undergoing a mental health crisis. He was in possession of a knife which he had refused to release. On any view, this was a tense situation involving a volatile and unpredictable individual (or at any rate, the officers could reasonably and honestly have taken that view, even if they were mistaken about it). That C had a propensity to behave aggressively is shown by the SGH notes taken that evening. The exigencies of police decision making must be respected per ST. The present case is not one where it could be said that the court is applying reasons by inference or retrospective justification; rather the court is saying that these reasons existed and the arresting officer was aware of them and took them into account, even if the court does not accept the additional and hyperbolic elements of his evidence.

184.

C’s actions were an affray per the analysis at paragraphs 154 and 155. I accept that C was not waving or brandishing the knife and had not uttered verbal threats to the officers. However, he stood while holding it and disregarded the command to release it for which he had no explanation. The carrying of a weapon in itself can amount to an affray where such action will “cause a terror in people” per Sharp. Alternatively, there were reasonable grounds to suspect an affray and/or that C was guilty of affray. In my judgment, C’s actions and the circumstances were such as to reasonably cause the officers fear. There is no suggestion that they are not of reasonable firmness. The court has made factual findings that this was the situation that presented to the officers that evening. It follows that this is what was in their minds- it could hardly be otherwise. This is what they saw and heard. This context provides the justification for their actions.

185.

It follows therefore that the actions of PCs Crouch and Corden were acts of self-defence as they objectively reasonably and honestly believed there to be threat to their persons. They were faced with an unpredictable individual in possession of a large knife. It was reasonable to take steps to defend themselves by disarming C. They also had objectively reasonable grounds and could form an honest belief that C had committed or was committing an affray and that steps were required to prevent the further commissioning of that offence and to arrest him for it.

186.

The issue then is whether reasonable force was used in their self-defence, prevention of the commissioning of affray and effecting arrest. This must be reasonable and proportionate force.

187.

I agree with Mr Waite that the situation was extremely dangerous. C had been asked to relinquish the knife. He had not done so. He needed to be disarmed. It is difficult to see how else D’s officers could disarm him other than forcibly getting him to release the knife once he had refused to voluntarily release it. In my judgment, the force used was reasonable given the circumstances and the failed attempt at de-escalation. Reasonable force was used to deal with the three matters in paragraph 186. It is difficult to see how else the officers could get the knife out of C’s hands other than by de-escalation (which had failed) or by force. (In the case of PC Corden, he did not assist in the arrest as he was incapacitated by the taser).

188.

C was committing an affray. PC Corden had reasonable grounds to suspect that he was so acting. The grounds for arrest in ss 24(l)-(3) are all satisfied. The next issue upon the PACE defence is whether there were reasonable ground (sic) to believe that one or more of the s 24(5) conditions were satisfied.

189.

PC Crouch in my judgment had reasonable grounds to believe that arrest was necessary to prevent C causing physical injury to himself or others and from suffering physical injury. It is not in dispute that C held a knife to his own throat. He clearly was a danger to himself. He was a danger to others for the reasons given in paragraphs 183 to 185.”

The recorder thus found that:

In the light of these findings, the recorder found that the officers had not assaulted the appellant, but had lawfully arrested him and that, the arrest being lawful, the appellant’s detention was lawful (subject to an argument that the detention was not properly reviewed, which the recorder dismissed). The recorder found that the prosecution of the appellant was not malicious, both because there was reasonable and probable cause for prosecuting the appellant for the section 4 offence and because the respondent was not motivated by malice in pursuing the prosecution.

In relation to the claim for malicious prosecution, the recorder said as follows in paragraph 195 of his judgment:

“The court now turns to the malicious prosecution claim. As was said in paragraph 161, there is no issue that D set the law in motion against C and are thus potentially liable should all elements of the tort be established. There is no issue that the prosecution was resolved in C’s favour.”

The recorder also said, inter alia, as follows in paragraph 197 of his judgment:

“There was reasonable and proper cause for the charge under the POA. On any view, C’s behaviour was threatening, by standing in possession of the knife and the officers reasonably apprehended that C would use violence against them. C had not heeded the officers’ attempts to de-escalate the situation by releasing the knife. He could offer no explanation for not releasing the knife while seated. Standing while holding it in their presence is threatening behaviour and was sufficient to instil a reasonable belief that C was intent on unlawful violence. Per Coudrat, PC Emam who was the charging officer had a reasonable basis to believe there was sufficient evidence for such a charge. The Hicks test is made out.”

The recorder found (in paragraphs 199 and 200 of his judgment) that there was no reasonable and probable cause for prosecuting the appellant on the charge of possessing a bladed article in a public place, but that there was no malice in relation to that charge. There is no challenge to that finding.

In relation to the section 4 offence, the recorder said as follows in paragraph 201 of his judgment:

“Although now otiose upon my finding that there was reasonable and proper cause for the POA charge, I find that D was not motivated by malice by its pursuit. Mr Newcombe’s evidence was not exculpatory of C. It helped D as explained in paragraph 198. PC Emam’s evidence (at paragraphs 117 to 122 above) was unimpressive. The court puts this down to incompetence and not malice. It is a step too far to hold that PC Emam conducted himself with malice towards C, where Mr Newcombe may in fact have given evidence of assistance to the prosecution. No reason or motivation was suggested for PC Emam having any animus towards C. The only officer who had previous dealings with C was Sgt Burke who had no part in the charging decision. Further, C knew Mr Newcombe very well. He knew Mr Newcombe had witnessed the incident and was prepared to give evidence for him. This is not a case of D concealing from C the existence of a witness or exculpatory material of which C was unaware. Further, there were glaring disparities in the accounts given by PCs Corden and Crouch- see in particular paragraph 36. This tells against collusion to try to ‘fit up’ C. They had not dealt with him before. No reason was suggested for any animus of them towards C.”

The recorder went on to set out what his findings would have been in relation to causation and quantum if the appellant’s claims had succeeded. This included a finding that this was not a suitable case for an award of exemplary damages.

Section 3 of the Public Order Act 1986 provides as follows:

“(1)

A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.

(2)

Where 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).

(3)

For the purposes of this section a threat cannot be made by the use of words alone.

(4)

No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5)

Affray may be committed in private as well as in public places.”

Paragraph 29-26 of Archbold, which the recorder consulted, provided as follows:

“What amounts to a threat is essentially a question of fact in each case: I v DPP; M v DPP; H v DPP [2001] UKHL 10; [2002] 1 A.C. 285. The mere possession of a weapon, without threatening circumstances, for example where the weapon was concealed, would not be a sufficient threat. But carrying weapons, in this case petrol bombs, was clearly capable of being sufficient: I v DPP, above. Spoken words alone are insufficient: s.3(3). Making a threat in an aggressive tone of voice is not enough: Robinson [1993] Crim. L.R. 581, CA. But setting a dog on police officers with the words “Go on, go on” is sufficient: Dixon [1993] Crim. L.R. 579, CA; as is driving a car at another occupied vehicle: Thind [1999] Crim. L.R. 842, CA.”

Section 4 of the Public Order Act 1986 provides as follows:

“(1)

A person is guilty of an offence if he—

(a)

uses towards another person threatening, abusive or insulting words or behaviour, …

with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked.

(2)

An offence under this section may be committed in a public or a private place, …”

In the absence of lawful justification, it is, of course, a battery to kick someone, to taser them or to administer a double palm strike. For the purposes of the claims in assault and battery and false imprisonment, it was for the respondent to prove the existence of lawful justification.

Section 3(1) of the Criminal Law Act 1967 provides as follows:

“A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.”

Section 24 of the Police and Criminal Evidence Act 1984 (“the 1984 Act”) provides as follows:

“(1)

A constable may arrest without a warrant—

(a)

anyone who is about to commit an offence;

(b)

anyone who is in the act of committing an offence;

(c)

anyone whom he has reasonable grounds for suspecting to be about to commit an offence;

(d)

anyone whom he has reasonable grounds for suspecting to be committing an offence.”

“(4)

But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.

(5)

The reasons are—

…

(c)

to prevent the person in question—

(i)

causing physical injury to himself or any other person; …”

As set out by Sir Brian Leveson P in paragraph 59 of his judgment in Parker v Chief Constable of Essex Police [2018] EWCA Civ 2788 (“Parker”) (quoting from the judgment of Stuart-Smith J in that case), the questions to be asked in a case such as this are:

“(A1) Did the arresting officer suspect that an offence had been committed? The answer to this question depends entirely on the findings of fact as to the officer’s state of mind.

(A2) Assuming the officer had the necessary suspicion, did the arresting officer have reasonable grounds for that suspicion? This is a purely objective requirement to be determined by the Court.

(1)

Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officer’s state of mind.

(2)

Assuming the officer had the necessary suspicion, did the arresting officer have reasonable grounds for that suspicion? This is a purely objective requirement to be determined by the judge if necessary on facts found by a jury.

(2A) Did the arresting officer believe that for any of the reasons mentioned in [s. 24(5) of the 1984 Act] it was necessary to arrest the person in question? The answer to this question depends entirely on the findings of fact as to the officer’s state of mind.

(2B) Assuming the officer had the necessary belief, were there reasonable grounds for that belief? This is a purely objective requirement to be determined by the judge, if necessary on facts found by a jury.

(3)

If the answer to the previous questions is in the affirmative, then the officer has a discretion which entitles him to make an arrest and in relation to that discretion the question arises as to whether the discretion has been exercised in accordance with the principles laid down by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.”

I will refer to these as the Parker questions. In the light of other authorities to which I will refer, it may be helpful to consider questions (A2), (2) and (2B) as each having two parts, i.e.:

Section 117 of the 1984 Act provides as follows:

“Where any provision of this Act—

(a)

confers a power on a constable; and

(b)

does not provide that the power may only be exercised with the consent of some person, other than a police officer,

the officer may use reasonable force, if necessary, in the exercise of the power.”

At the risk of stating the obvious, a judge or other trier of fact is not obliged to choose between accepting all of a witness’s evidence or rejecting all of that witness’s evidence. It is common for judges to accept part, but not all, of a witness’s evidence. However, a number of the cases to which I was referred concerned the general proposition that a judge ought not to decide a case on a ground which has not been pleaded and explored in evidence.

For instance, Al-Medenni v Mars UK Ltd [2005] EWCA Civ 1041 (“Al-Medenni”) is an example of a case in which the Court of Appeal held that the judge had not been entitled to find liability (for personal injury in a workplace accident) on a basis which had not been pleaded by the claimant, advanced at trial or explored with the witnesses. The claimant’s case was that she was injured by a roll of wrapping paper which fell on her because a co-worker, Mr Braich, had not placed it securely. The judge rejected that case, but found that the roll had been placed insecurely by a third person. In holding that the judge had not been entitled to reach that conclusion, the Court of Appeal said as follows in paragraph 21 of its judgment:

“… It is fundamental to our adversarial system of justice that the parties should clearly identify the issues that arise in the litigation, so that each has the opportunity of responding to the points made by the other. The function of the judge is to adjudicate on those issues alone. The parties may have their own reasons for limiting the issues or presenting them in a certain way. The judge can invite, and even encourage, the parties to recast or modify the issues. But if they refuse to do so, the judge must respect that decision. One consequence of this may be that the judge is compelled to reject a claim on the basis on which it is advanced, although he or she is of the opinion that it would have succeeded if it had been advanced on a different basis. Such an outcome may be unattractive, but any other approach leads to uncertainty and potentially real unfairness.”

Satyam Enterprises Ltd v Burton [2021] EWCA Civ 287 (“Satyam”) is another example of a case in which the Court of Appeal held that a judge had decided a case on a basis which had not been pleaded. By contrast, Ali v Dinc [2022] EWCA Civ 34 was a case in which the Court of Appeal held (at paragraph 30) that the judge’s conclusions were composed entirely of the acceptance or rejection of factual assertions which were pleaded. Birss LJ said as follows in paragraph 34 of his judgment:

“… standing back it is fair to note that the judge’s conclusion does amount to a particular intermediate combination of the various factual assertions making up both parties’ cases, and the combination itself is one that neither party had expressly pleaded. However that is a commonplace in civil litigation. The circumstances in which that occurs will be infinitely variable and in many cases, like this one, it presents no problems of any sort. In the closings at trial, the case was argued out fully by counsel before the judge. In no sense could it be said that the appellants were ambushed or precluded from advancing submissions or evidence which they might otherwise have done. The appellants have not identified any step they might have taken, but were deprived of the opportunity to take, because of the way the case was decided. No evidence has been identified which the appellants might have called but did not, nor any questions which might have been asked in cross-examination, nor any authority which might have been cited. No prejudice to the appellants of any sort has been identified.”

As for cases of alleged false imprisonment, Edwards v DPP (1993) 97 Cr.App.R. 301 (CA) (“Edwards”) was a case in which a police officer purported to arrest a man for obstructing the officer in the exercise of her duty, at a time when she could perhaps have lawfully arrested the man on reasonable suspicion of the unlawful possession of cannabis, but the officer did not have power to arrest the man for obstructing a police officer in the execution of her duty. The Court of Appeal held that the arrest was unlawful and that it could not be justified on a ground different to that which had been given to the man when he was arrested.

In paragraph 15 of his judgment in Alexander’s Application [2009] NIQB 20, Kerr LCJ said as follows:

“Of perhaps greater pertinence in the present debate, however, is the question whether having reasonable grounds to believe (just as having reasonable grounds to suspect) restricts the ambit of permissible review by the courts to an examination of the actual grounds considered by the arresting officer. After all, it is to the grounds which the officer had, as opposed to those that he might have considered, that the subsection directs one’s attention. This suggests that one should concentrate on the specific grounds to which the constable had regard. As against that approach, however, a wilful refusal to take into account factors that might have led unmistakably to a contrary view as to the necessity to arrest surely cannot be ignored in any judgment on the reasonableness of the grounds on which the belief was formed.”

Jay J said as follows in paragraphs 38 and 39 of his judgment in R (L) v Chief Constable of Surrey Police [2017] 1 WLR 2047 (“R (L)”):

“38

I agree with Mr Stagg that the next issue to consider is the appropriate test that this court should apply to DC Andreas’s exercise of his discretionary power under section 24(5) of PACE. I have already touched on this, but I should go somewhat further. It is not for this court to decide as a question of primary fact whether the claimant’s arrest was necessary. Mr Summers did not submit that it was, and basic principles of administrative law indicate otherwise. It would be undesirable in a case such as this to place any judicial gloss on the adjective, “necessary”. Further, as Hughes LJ explained in Hayes v Chief Constable of Merseyside Police [2012] 1 WLR 517, para 40, the test is two-pronged: (i) the policeman must honestly believe that arrest is necessary for one or more identified section 24(5) reasons; and (ii) secondly, “his decision must be one which, objectively reviewed afterwards according to the information known to him at the time, is held to have been made on reasonable grounds”. These formulations reflect the policies and objects of PACE, including the need to protect the liberty of the subject.

39

The first limb of the test is subjective. Mr Summers did not submit that DC Andreas did not have the requisite honest belief. In so far as the second limb deploys the adverb “objectively”, all that means is that this court, in the exercise of its judicial function, applies independent, objective standards to its review of the defendant’s decision: in particular, the reasonableness of the grounds upon which that decision was founded. That review is carried out on the basis of information known to the decision-maker at the time it was made. Finally, the court does not ask itself whether any police officer could rationally have made the decision under challenge; it directs itself to the particular decision-maker and his grounds. In my view, that is what this court, Lord Thomas of Cwmgiedd CJ presiding, was saying at paras 22-23 of its judgment in R (B) v Chief Constable of the Police Service of Northern Ireland [2016] Crim LR 428.”

Alger v Commissioner of Police of the Metropolis [2023] EWHC 1582 (KB) was a case in which the claimant’s appeal was allowed because:

The elements of the tort of malicious prosecution are that: (a) the defendant set the law in motion against the claimant; (b) the prosecution was resolved in the claimant’s favour; (c) the prosecution was brought without reasonable and probable cause; (d) the prosecution was malicious; and (e) the claimant suffered actionable damage.

In relation to the first of these five elements, the question of who was the prosecutor, i.e. who “set the law in motion against the claimant”, has been considered in a number of cases, which are discussed in paragraphs 15.20 to 15.25 of Clerk and Lindsell on Torts 24th Ed (2023). It is appropriate to start with what Lord Keith of Kinkel said at pages 86G to 87A of his judgment in Martin v Watson [1996] A.C. 74 (“Martin v Watson”):

“… Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.”

In Rees v Commissioner of Police for the Metropolis [2018] EWCA Civ 1587, McCombe LJ analysed a number of judgments applying the principle set out by Lord Keith in Martin v Watson and decided, on the facts of that case, that a police officer who had procured false evidence against the claimant was a prosecutor.

There are five grounds of appeal.

Ground 1 is that the recorder was wrong because his approach was impermissible in the adversarial system of justice.

As to this ground, the appellant submitted that:

The respondent submitted in relation to grounds 1 and 2 that:

Ground 2 is that the recorder erred in his approach by failing to recognise the principle that, in the tort of trespass to the person, the burden is on the defendant to justify the battery and the imprisonment of the claimant.

The appellant relied on this ground as an additional reason for submitting that the recorder was wrong to depart from the grounds advanced by the officers as their grounds for suspecting that the appellant was committing an offence and believing that it was necessary to arrest him to prevent him causing physical injury to himself or any other person.

Ground 3 is that the recorder was wrong to find that the officers subjectively thought that the claimant was threatening them and/or that they had objectively reasonable grounds for their respective suspicion/belief.

The appellant’s submissions concerned paragraphs 181 and 183 of the recorder’s judgment, which the appellant submitted were unsustainable for a number of reasons:

The respondent submitted that:

Ground 4 is that the recorder was wrong to find that there was a reasonable and proper cause for the charge of affray as it was prosecuted.

The appellant submitted that the prosecution proceeded on the basis that the appellant committed affray by lunging at the officers with the knife and that the recorder should have considered whether there was reasonable and probable cause for prosecuting him on that basis rather than the alternative basis devised by the recorder.

The respondent submitted that the recorder’s findings disclose the existence of a reasonable and probable cause for prosecuting the appellant.

Ground 5 is that, in light of the other grounds of appeal, the recorder was wrong in quantifying malicious prosecution and failing to award exemplary damages.

An allegation that a judge has departed from a party’s pleaded case requires careful consideration of the pleaded case. In the present case, as I have already noted, there was, for understandable reasons, no pleaded allegation that the appellant had in fact committed an offence on the night of 21 June 2017. In those circumstances, I do not consider that it was open to the recorder to find, as he did, that the appellant had committed an offence on that occasion.

I turn next to the issue at to what PC Crouch suspected, i.e. questions (A1) to (2) of the Parker questions. Although the respondent had pleaded at some length earlier in the amended defence his case as to what happened in the incident, it was in paragraph 28 that the respondent set out his case on this issue, which was that:

“… PC Crouch, as arresting officer, suspected, and had reasonable grounds to suspect, that the Claimant had committed the offence of affray, in that he had seen the Claimant point a knife in his direction and walk towards him while shouting threats and adopting an aggressive posture. …”

There was, therefore, a pleaded case that PC Crouch suspected that the appellant was committing the offence of affray. However, for the purposes of questions (A2) and (2) of the Parker questions, it was also necessary to consider what the respondent’s case was as to PC Crouch’s actual grounds for that suspicion and whether those grounds were reasonable.

In my judgment, paragraph 28 of the amended defence contained an allegation that PC Crouch had one ground for suspecting that the appellant was committing the offence of affray, namely that he had seen the appellant point a knife in his direction and walk towards him while shouting threats and adopting an aggressive posture. The difficulty for the respondent is that, as Mr Waite accepted, the recorder found that the appellant did not do any of these things. Indeed, the recorder went so far as to find that PC Crouch could not honestly have believed that the appellant did these things.

Mr Waite also sought to place reliance on a subsequent sentence in paragraph 28 of the amended defence, which contained a denial of certain allegations in the particulars of claim, but these were mere denials and did not advance a positive case as to the grounds for PC Crouch’s suspicion.

It is also relevant to note the positive case advanced by the respondent in paragraph 31 of the amended defence that, prior to the appellant escalating the situation (which, according to paragraph 30 of the amended defence, he was alleged to have done by standing up, pointing the knife at PC Crouch and moving towards him), the officers did not treat him as someone suspected of a criminal offence. This is consistent with my interpretation of paragraph 28.

In those circumstances, I conclude that it was not open to the recorder to find that PC Crouch had grounds for his suspicion which were different from the ground advanced in paragraph 28 of the amended defence. This aspect of the case is akin to that considered by Dyson LJ in paragraph 21 of his judgment in Al-Medenni.

I find also that the appellant was prejudiced, in that the recorder decided this issue on a point which was not pleaded and therefore not explored in evidence. I do not speculate about what PC Crouch might have said if cross-examined on this issue, but it is clear from the paragraphs of his witness statement which I have quoted (in particular, paragraphs 29, 31 and 35) that he might have faced some difficulty in asserting that his grounds for suspecting that the appellant was committing an affray were different from the ground set out in paragraph 28 of the amended defence.

The recorder found, in effect, that the officers had lied consistently about the incident between 2017 and 2023. That was a strong finding, but there is no challenge to it. When a witness lies, it is often appropriate to consider why they have lied: this is the subject of the Lucas direction in criminal cases. In the present case, the appellant contended that the officers had lied because they knew that their conduct had been unlawful and that they needed to concoct a story to justify their conduct. There was, however, no pleaded allegation by the respondent that the officers had had a different justification for their conduct. Had there been, it would have been necessary to explore with the officers whether they had lied in order to bolster an innocent case. The absence of a pleaded case meant that that did not happen.

The recorder was, with respect, right to recognise that he needed to make findings as to the officers’ state of mind. The state of someone’s mind is a question of fact, about which judges and juries can and do make findings every day. However, judges make such findings within the framework of the pleaded issues. In the present case, I have concluded that the judge went beyond the pleaded issues.

The question raised by the recorder at the conclusion of the trial does not affect this analysis. By then, the evidence had already been called. The appellant set out his submission that the reasoning in Alger and R (L) applied. I do not consider that it was incumbent on the appellant to submit either that the amended defence needed re-amendment or that the officers should be recalled.

I turn next to the issues as to PC Crouch’s belief and the grounds for it, i.e. questions (2A) and (2B) of the Parker questions. The respondent’s case on these issues was set out in paragraph 30 of the amended defence, as follows:

“… PC Crouch, as arresting officer, believed and had reasonable grounds to believe that the Claimant’s arrest was necessary in order to prevent him causing injury to himself or to others, including PC Crouch himself and PC Corden. This belief was based on the Claimant’s own conduct, including holding a knife to his throat and threatening to slit it, and pointing the knife at PC Crouch while moving towards him in an aggressive manner as set out above. The officers had attempted to use steps short of arrest in that they had attempted to speak to the Claimant to persuade him to put the knife down: these efforts were unsuccessful and cut short by the Claimant’s decision to escalate the situation by standing up, pointing the knife at PC Crouch and moving towards him.”

The pleaded case was that PC Crouch believed that the appellant’s arrest was necessary in order to prevent him causing injury to himself or to others and that the ground for that belief was “the Claimant’s own conduct”. In my judgment, this was a reference to all of the appellant’s conduct, as set out earlier in the amended defence. That can be seen from the use of the word “including” before the reference to two specific aspects of the appellant’s conduct, namely his: (a) holding a knife to his throat and threatening to slit it; and (b) pointing the knife at PC Crouch while moving towards him in an aggressive manner.

The recorder rejected some aspects of the respondent’s factual case as to the appellant’s conduct (including the allegation that the appellant pointed the knife at PC Crouch while moving towards him in an aggressive manner), but accepted others (including the allegation that the appellant held a knife to his throat and threatened to slit it). It was not disputed that it was open to the recorder to find that the officers believed that the appellant’s arrest was necessary in order to prevent him causing injury to himself.

However, in the circumstances of the present case, the only basis on which the officers could have believed that it was necessary to arrest the appellant in order to prevent him causing injury to others (i.e. the officers themselves) was if the officers believed that the appellant was committing the offence of affray or the section 4 offence. Moreover, since, as I have held, the respondent’s pleaded case was that PC Crouch had only one ground for suspecting that the appellant was committing the offence of affray, and since the recorder found that the officers had no honest belief in that ground, it follows that it was not open to the recorder to find that the officers believed on a different ground that it was necessary to arrest the appellant in order to prevent him causing injury to others.

The same applies to the issue of self-defence. Moreover, this conclusion is reinforced by the way in which the respondent’s case on reasonable force, which is an aspect of self-defence, was pleaded in paragraph 37 of the amended defence, as follows:

“… The Defendant denies that any force used was more than was reasonably necessary and proportionate in the circumstances as the officers genuinely and reasonably believed them to be, namely that the Claimant was threatening to attack PC Crouch with a large serrated knife.”

It can be seen that the respondent’s pleaded case was that the force used was reasonable in the light of the officers’ belief that the appellant was threatening to attack PC Crouch with a knife. Such a threat would have amounted to the offence of affray or the section 4 offence, as to which the respondent’s case was that the officers had only one ground for suspecting that the appellant was committing such an offence, a ground which the recorder rejected.

For all of these reasons, I have concluded that:

I do not consider that ground 2 adds anything to ground 1. The fact that the burden of proving lawful justification was on the respondent and that the respondent had to satisfy the Parker questions in order to justify the appellant’s arrest was a reason for giving careful consideration to the respondent’s pleaded case when considering ground 1, but it did not impose an additional burden on the respondent or an additional limitation on the judge’s powers. The use of force, arrests and detentions by police officers are all matters which the courts will scrutinise carefully, but in each case the judge will take the issues from the pleadings and consider the evidence relevant to the pleaded issues.

Given my conclusion on ground 1, I need not consider ground 3.

Ground 4 concerns the appellant’s claim in malicious prosecution. However, it only concerns one of the five elements of the tort of malicious prosecution. As formulated, ground 4 is based on the mistaken premise that the appellant was prosecuted for affray, rather than the section 4 offence. However, I am prepared to overlook this mistake. I am also prepared to find, for the reasons which I gave when considering ground 1, that the recorder was wrong to find that there was a reasonable and probable cause for prosecuting the appellant for the section 4 offence.

However, it does not follow that the recorder was wrong to dismiss the claim for malicious prosecution. That is because ground 4 does not address two of the elements of the tort of malicious prosecution, namely:

The simple fact is that there is no ground of appeal in relation to either of those issues. In those circumstances, it would not be open to me to find that the recorder was wrong to dismiss the claim in malicious prosecution.

The premise for ground 4 is that PC Crouch, at least, and possibly also PC Corden, was to be regarded as a prosecutor on the basis identified in Martin v Watson. Mr Waite submitted that it was neither pleaded nor put to PC Crouch that he was the prosecutor. Without making any decision about that submission, it is, to say the least, unclear how this issue was dealt with (if it was dealt with at all) at trial. I have not been shown either a transcript or a copy of written submissions in which this issue was raised at trial.

Paragraph 41 of the amended particulars of claim does not expressly allege that any particular officer was to be treated as a prosecutor and, indeed, does not name any particular officer or officers. Having said that, the allegation in paragraph 41(a) that the respondent withheld potentially exculpatory evidence in the form of the presence of an independent witness could be taken as a reference to PC Emam, who visited Mr Newcombe on 22 June 2017 but did not take a statement from him, whereas the allegation in paragraph 41(d) that officers concocted the case against the appellant could be taken as a reference to PCs Crouch and Corden.

In paragraphs 161 and 195 of his judgment, the recorder said that it was not in issue that the respondent set the law in motion against the appellant. In one sense, that was plainly correct, since TL Dring, a Humberside Police officer, made the decision to charge the appellant. However, the recorder did not identify, let alone address, any issue as to which officer was to be regarded as the appellant’s prosecutor. Moreover, I note that, when addressing the issue of malice in paragraph 201 of his judgment, the recorder addressed in turn the position of PC Emam, Sergeant Burke and PCs Crouch and Corden, without any comment as to whether any of them was to be regarded in law as the appellant’s prosecutor.

Had the issue been addressed at trial whether PCs Crouch and Corden were the appellant’s prosecutors in the Martin v Watson sense, then it is easy to see that many evidential issues might have been considered. These include, for example:

Since these matters were not explored at trial, or not addressed in the judgment, it would not be right for me to form any views about them on appeal, especially as there is no ground of appeal concerning this issue. It follows, however, that the recorder’s decision to dismiss the claim in malicious prosecution must stand.

As I have said, there is no ground of appeal which challenges the recorder’s finding that there was no malice on the part of PCs Crouch and Corden. There is a complaint made in paragraph 91 of the appellant’s skeleton argument that, when addressing malice, the recorder was wrong to focus on PC Emam rather than PCs Crouch and Corden. That complaint is unjustified, however, since the recorder considered malice in relation to PCs Crouch and Corden as well as PC Emam and Sergeant Burke. What the recorder said (in paragraph 201) about PCs Crouch and Corden was that:

“… Further, there were glaring disparities in the accounts given by PCs Corden and Crouch- see in particular paragraph 36. This tells against collusion to try to ‘fit up’ C. They had not dealt with him before. No reason was suggested for any animus of them towards C.”

These were the recorder’s reasons for finding that there was no malice on the part of PCs Crouch and Corden. There is, as I have said, no ground of appeal which challenges these findings.

Given my conclusion on ground 4, it is unnecessary to address ground 5.

For the reasons which I have given, I conclude that the recorder was wrong to dismiss the appellant’s claims for assault and battery and false imprisonment, but not the claim for malicious prosecution.

I invite the parties to agree the terms of an order giving effect to this judgment, including an order as to the amount of damages. In the absence of such agreement, I will hear submissions as to how damages should be assessed. At this stage, I express no view as to whether I should assess damages or whether I should remit the assessment of damages to the County Court.