Gary Wimblett v The Chief Constable of Lancashire Constabulary

This is an appeal from the judgment dated 19 August 2025 of HHJ Beech sitting in the County Court at Preston, in which she dismissed the Claimant’s claim against the Lancashire Constabulary for damages for false imprisonment, assault and battery following his arrest by the Devon and Cornwall police for alleged breach of a non-molestation order.

In May 2021, a non-molestation order (“NMO”) was obtained against the Claimant (“Mr Wimblett”) by his former wife. This prohibited him from, amongst other things, entering certain locations in Blackpool, where she still lived and where Mr Wimblett had also previously resided. In late July 2021, allegations were made to the Lancashire police which, if true, meant that Mr Wimblett was in breach of the NMO. Breach of an NMO is an arrestable offence.

On 6 August 2021, PC Wade was assigned to the case. He attempted to arrest Mr Wimblett at his last-known address in Blackpool, in fact his parents’ address, but was told by his mother that he was not there and that she believed he was out of town. It is common ground that PC Wade spoke to Mr Wimblett by telephone on about 8 August 2021 and was told by him that he had left Blackpool and moved south to Devon. It is also common ground that PC Wade told Mr Wimblett that the police wished to speak to him about an allegation that had been made. There is a conflict on the written evidence as to whether Mr Wimblett gave PC Wade his current address. PC Wade says that he asked for an address but that Mr Wimblett did not wish to provide his exact location and would not commit to a specific date/time to go to a police station. Mr Wimblett says that he provided his current address and that matters were left with PC Wade saying that he would enquire whether it was possible for the interview to take place at a local police station.

On 16 August 2021, and without any further contact having taken place between them, PC Wade issued a Police National Computer Nominal (“PNCN”) marked as “Wanted Report with Power of Arrest”. This was effectively a “wanted” notice whereby Mr Wimblett’s name was added to the PNC together with a brief outline of the circumstances and reasons why he was wanted. Because it was circulated with a power of arrest, it required prior authorisation from an Inspector, which was obtained. As explained by PC Wade in his witness statement this meant that “an arrest would be affected [sic] based on the circumstances I had provided in the Circulation Form” although he also explained that it would be for the actual arresting officer to determine when the time came whether there was in fact any necessity to arrest.

On 11 September 2021, Mr Wimblett attended Torquay Police Station where he was arrested by PC Edmunds of the Devon and Cornwall Police. He was detained there for some 16 hours before being transported by van to Blackpool where he was interviewed and subsequently released on bail. In the event, no further action was taken against him and on 25 September 2023, he commenced the present proceedings against the Lancashire Police only. No claim was brought against the Devon and Cornwall Police.

The sole basis of the claim against the Lancashire Police is that PC Wade directly procured Mr Wimblett’s wrongful arrest by circulating the PNCN. (Footnote: ¹) At a PTR on 18 June 2025, the Judge directed that “The issue of vicarious liability shall be addressed as a preliminary issue.” As she explains in her judgment, she was prompted to take this course because of the Claimant’s election not to bring proceedings against the arresting force but rather asserting that all their actions had been procured by the Lancashire police. It was therefore agreed to deal by way of preliminary issue with all the legal issues arising from this approach.

It is common ground that the question of vicarious liability properly so called only applies to the Chief Constable’s liability for the tortious actions of PC Wade. There is no question of either PC Wade or the Chief Constable being vicariously liable for the actions of the arresting officer, PC Edmunds. It is also not disputed that, since PC Wade did not effect the arrest of Mr Wimblett himself, he can only be liable as a joint tortfeasor for false imprisonment and unlawful arrest if he “procured” the arrest. This is an example of what has come to be known as accessory, rather than vicarious, liability.

False imprisonment is a tort of strict liability. It follows that the mere fact of an arrest is prima facie wrongful unless the arrest can be justified, either under section 24 of the Police and Criminal Evidence Act 1984 (“PACE”) or otherwise. Ever since the decision of the House of Lords in O’Hara v Chief Constable of the Royal Ulster Constabulary, [1997] AC 286, it has been clear, and indeed was not controversial before me, that so far as the liability of the actual arresting officer is concerned, the lawfulness of the arrest is to be assessed only by reference to his or her state of mind based on the facts and information known to him/her at the time of the arrest.

In this regard, the following may also be taken to be well-established:

As Mr Justice Freedman pointed out in Karalis at [75]-[76], in most cases it is only the arresting officer whose suspicion and state of mind fall to be considered. Nonetheless, the common law also recognises that there are circumstances in which it is appropriate to hold someone other than the arresting officer liable for the false imprisonment on the grounds of accessory liability. The critical question on this appeal is whether those circumstances applied or arguably applied in this case.

The Judge was referred to a considerable number of authorities on the law of accessory liability in the context of an arrest. After considering the written evidence, including witness statements made by both Mr Wimblett and PC Wade, and hearing detailed submissions on the law, the Judge concluded that there were no reasonable prospects of Mr Wimblett succeeding in his claim for unlawful arrest by PC Wade.

In her careful judgment she concluded that:

In the circumstances, the Judge held that it could not be established PC Wade was effectively the arresting officer and accordingly dismissed Mr Wimblett’s claim in so far as brought on the basis of accessory liability.

The sole ground of appeal is that the Judge misdirected herself on, and failed correctly to apply, the law relating to accessory liability as authoritatively expounded in the recent decision of the Supreme Court in Lifestyle Equities CV v Ahmed, [2024] UKSC 17; [2025] AC 1. On a proper appreciation of the law, the Claimant had at least a real prospect of establishing liability. It is of note that the Judge did not refer anywhere in her judgment to Lifestyle. Accordingly, the principal submission made before me by Mr George Murray on behalf of Mr Wimblett was that her reliance on Karalis was misplaced and that she failed properly to apply the principles set out in Lifestyle. By contrast, Ms Hirst, who appeared for the Chief Constable submitted that the Judge was correct to follow Freedman J’s approach in Karalis and that this was in any event compatible with Lifestyle.

By virtue of CPR 52.21, an appeal proceeds by way of review rather than re-hearing, unless it would be in the interests of justice in the circumstances of the particular case to hold a re-hearing. I can see nothing here to justify a re-hearing and neither party suggested otherwise.

Pursuant to CPR Part 52.21(3), an appeal will be allowed if the decision below was either wrong, or was unjust because of a serious procedural or other irregularity. No question of irregularity arises, let alone a serious irregularity, and accordingly in order for the appeal to succeed, Mr Murray must satisfy me that the decision of the Judge was wrong.

It was not in dispute that the principles to be applied by a court on appeal include the following:

On behalf of Mr Wimblett, Mr Murray made detailed written and oral submissions on each of the relevant cases, all of which he suggested would now have to be reappraised in the light of Lifestyle. In order to assess these submissions, it has therefore been necessary for me to conduct my own review of the authorities. Nonetheless, in order to avoid over-burdening this judgment with extensive citation of authority, I have included that review in a separate Annex.

I agree with Mr Murray that, following the decision in Lifestyle, the test for accessory liability can be fairly summarised in the following three propositions:

In the context of wrongful arrest, the primary act is the arrest of the complainant. Since false imprisonment is a tort of strict liability, it follows that the only essential fact which makes the arrest actionable is the fact of the arrest itself. Step (a) will therefore always be satisfied in such cases and this was not challenged by Ms Hirst.

Steps (b) and (c), however, were more controversial and give rise to the following issues on the facts of this case:

I start with the question of knowledge because it seems to me to be relatively straightforward. On this point, I am in agreement with Mr Murray that the knowledge required to create accessory liability in the present case cannot possibly relate to the presence or absence of a defence on the part of the arresting officer. This is for two main reasons:

Accordingly, I do not regard step (c) as any barrier to the establishment of liability in this case. PC Wade admittedly intended Mr Wimblett to be arrested and since the arrest was prima facie unlawful without more, it was not necessary for his knowledge to have extended any further than that. (In any event, although it is not necessary for Mr Wimblett to go this far, it is virtually inconceivable that PC Wade as a serving police officer was not also aware that an arrest is unlawful unless justified under section 24 of PACE.)

The critical issue, as it seems to me, is therefore whether it can be said that PC Wade procured the arrest of Mr Wimblett so as to satisfy step (b). It is common ground that the question of common design does not arise and there is no allegation that PC Wade was guilty of any independent tort, such as misfeasance in public office or malicious prosecution.

Lifestyle does not discuss what conduct will or will not amount to a procurement for the purpose of accessory liability. To that extent, it leaves the pre-existing case law intact. As to this, the authorities disclose two main categories of factual situation in which the courts have hitherto held that an arrest has been wrongfully procured so as to attract accessory liability:

As is obvious, the two categories are not mutually exclusive and may overlap in any particular case (as in Commissioner of Police of the Metropolis v Copeland, [2014] EWCA Civ. 1014). Moreover, either category could encompass an accessory who is acting dishonestly and in bad faith on the one hand (as posited in Copeland)or, on the other, an accessory who is acting entirely innocently and in good faith (as in Hackney).

The cases referred to in the Annex to this judgment readily accept that an accessory can properly be said to have procured an arrest where he deliberately provides misleading or incomplete information to the arresting officer, particularly when this has the practical effect in the circumstances of removing the arresting officer’s independent discretion: see, for example, Ahmed v Shafique, [2009] EWHC 618 (QB)at [86]; Copeland (supra) at [18]-[21]; Barkhuysen v Hamilton, [2016] EWHC 2858 (QB) at [142]; Ali v Heart of England NHS Foundation Trust, [2018] EWHC 591 (Ch.) at [32]; BES Commercial Electricity Ltd v Cheshire West and Chester Council, [2022] EWHC 2162 (QB) at [392]-[395]; Karalis at [74]. The same is self-evidently true of the accessory who dishonestly directs an arrest.

What of the accessory who acts innocently in good faith or negligently? It seems to me that there is a tension here. On the one hand, false imprisonment is a tort of strict liability and, from the point of view of the individual arrested, the effect is the same whether the ultimate impetus for his arrest was a deliberate lie, mere negligence or a wholly innocent omission. On the other hand, Lord Leggatt in Lifestyle regarded it as unjust to impose accessory liability on someone who was acting in good faith and without knowledge of the facts making the primary act tortious. It is true that Lifestyle went on to clarify that knowledge for these purposes simply meant knowledge of the essential facts making the primary act unlawful, rather than knowledge that the act was in fact unlawful. However, the question of knowledge only arises at step (c) above, whereas the present enquiry arises at step (b), namely whether it can be said that there has been any procurement in the first place. Moreover, at [103], Lord Leggatt also quoted with approval from Lord Watson’s speech in Allen v Flood, [1898] AC 1, 96 which summarised the ratio of Lumley v Gye (1853), 2 E & B 216 as imposing liability on a personwho procures the act of another “if he knowingly and for his own ends induces that other person to commit an actionable wrong.” (Emphasis added.)

In this context, what I have called briefing/information cases may raise different considerations from what I have called direct order cases where there is no interposition of any independent discretion. In the latter, it is the accessory who is effectively making the arrest through the ministerial agency of the arresting officer and the position of the latter is almost incidental. In that situation, it seems correct in principle to ask simply whether the accessory was acting lawfully or not, irrespective of whether he was acting culpably or in good faith: Hanna v Chief Constable of the Royal Ulster Constabulary, [1986] NI 103, 108; Hackney at [35]-[39]; Barkhuysen at [142]. In any event, an arrest in these circumstances will almost inevitably be unlawful because of the failure of the arresting officer to exercise his own discretion so as to satisfy section 24 of PACE (Footnote: ³) and I do not regard it as unjust to hold the accessory liable for a wrongful arrest that he has procured in this way.

By contrast, in a pure briefing/information case there should in my judgment be some element of wilful culpability before it can be said that the accessory has procured the arrest:

Analysed in this way, I do not see any irreconcilable tension between Alford and Copeland as suggested by Wyn Williams J in Mouncher v Chief Constable of South Wales Police, [2016] EWHC 1367 (QB). Alford was a true briefing/information case, whereas I regard Copeland as being essentially a direct order case for the reasons set out in paragraphs ‎41-‎43 below. I therefore agree with Freedman J in Karalis at [74] that the two cases are not fundamentally at odds.

Typically, the requisite culpability in a briefing/information case will consist of dishonesty or deliberate lying (including turning a blind eye), although I would not necessarily want to limit it to that situation. As Freedman J noted in Karalis at [49] procurement is a fact-specific issue and every case must depend on its own particular circumstances. I therefore consider it unwise to attempt to lay down hard and fast rules as to what will or will not amount to wilful culpability in any particular case.

Nonetheless, I am quite satisfied that no jury, properly directed, could have concluded that the mere circulation of a PNCN of itself amounted to a direct act of procurement so as to bring it within the direct order category, essentially for the reasons given by the Judge below:

Although I have not relied on this in any way, I note that such a conclusion is also consistent with the evidence given in Karalis.

It follows that we are concerned here solely with a briefing/information case. While the case law is clear that the mere interposition of an independent discretion on the part of the arresting officer cannot automatically preclude a finding of procurement on the part of the briefing officer/informant, by the same token, where there is such an independent discretion, a mere request cannot amount to a direct procurement without more. In accordance with the analysis above, I therefore consider it necessary for PC Wade to have acted dishonestly or with some degree of wilful culpability in issuing the PNCN before it can be said that he directly encouraged or incited and thus procured Mr Wimblett’s arrest by so doing.

This was also the view of the Judge and in this respect I find her analysis and reasoning to be entirely correct.

However, that does not conclude this appeal because it is still necessary to consider whether she was correct on that basis to dismiss the claim without an evidential hearing. This brings me to the third issue relating to the burden of proof.

I was not referred to any previous case where a claim of this nature had been dismissed without hearing evidence. Even in Karalis, there was a trial at which evidence was called on both sides.

It is not disputed as a general proposition that, where the lawfulness of an arrest is put in issue, the burden is on the defendant to justify it. However, that proposition does not fully address the incidence of the burden of proof where there is a disputed allegation of procurement. Moreover, different considerations may arise in this regard depending on whether it is a direct order case or a briefing/information case.

If procurement by direct order or instruction is alleged, it seems to me that this must be pleaded and proved by the claimant in the ordinary way. If the claimant discharges his burden of showing a direct order or instruction, then the burden shifts to the defendant to prove the lawfulness of the arrest. In principle the position should be no different in a briefing/information case. It should likewise be for the claimant to plead and prove that the accessory procured the arrest by going beyond the mere laying of information. To the extent that this can only be established (as I have held above) by proving that the briefing officer/informant lied or was wilfully culpable, that is what needs to be proved. Of course, if the claimant proves procurement on this basis, it will almost inevitably be determinative of the question of lawfulness and it will not be necessary to go any further.

In Copeland, the trial judge regarded the burden as being on the chief constable to prove that the briefing officer had not lied. It was argued on appeal that the claim should have been formulated as one for malicious procurement by deliberate fabrication such that the burden was on the claimant to prove that the briefing officer had lied. At [18], Moses LJ held that the arresting officer’s state of mind in that case:

“was entirely influenced by and dependent upon what she was told by PC Bains. If PC Bains deliberately lied, as alleged, then Ms Copeland’s arrest, which was attributable to PC Bains’ allegation andnothing else, was unlawful, and, there being no issue as to causation, resulted in an imprisonment which was false.” (Emphasis added.)

He continued:

“20.

It is not and was not disputed that the burden of proving the lawfulness of the arrest lay upon the Commissioner. The claim for false imprisonment was based on the absence of lawful authority for the underlying arrest. It was for the Commissioner to prove that the arrest was lawful and that, accordingly, there was lawful justification for the detention. The Commissioner could not do so unless he established that PC Bains was acting in good faith in requesting PC Derbyshire to arrest Ms Copeland. As Toulson LJ put it in R (M) v Hackney:-

‘Lawfulness or unlawfulness is an attribute of the conduct of the defendant which caused the claimant’s loss of liberty.’

He recognised the principle at common law that:-

‘There may be false imprisonment by A, although it was B who took the person into custody and B acted lawfully, provided that A directly caused B’s act and that A’s act was done without lawful justification.’

21.

The legality of the arrest and therefore of the detention turned on the legality of the actions of he who caused it, namely, PC Bains. Just as it was for the police to establish that the arresting officer, PC Derbyshire, suspected that Ms Copeland had committed an arrestable offence and that she had reasonable grounds for doing so, it was no less for the police to establish that that was not on the basis of false evidence deliberately intended to procure the arrest of Ms Copeland.

22.

As the judge recognised, were it otherwise, the burden would shift according to whether PC Bains himself arrested Ms Copeland or whether he asked someone else to do so. There is no sense in such a shift. For those reasons, in my view, the judge correctly directed the jury as to the burden of proof in question 3.”

It seems clear from these passages that the Court of Appeal in Copeland regarded the case before it as a direct order case. I note in particular the reference in paragraph 18 to the lack of any issue on causation, and paragraph 22, which seems to regard PC Bains and PC Derbyshire as effectively interchangeable. On that basis, there can be no serious argument with the proposition that lawfulness is for the defendant to prove: see paragraph ‎40 above. References in Copeland to the incidence of the burden of proof must accordingly be read in this context. Mouncher at [433] followed Copeland and is therefore to similar effect.

In my judgment, however, Copeland and other direct order cases are distinguishable from pure briefing/information cases where the legal burden of proving that the arrest was procured by lies or other wilful culpability rests with the claimant. In these cases, the position seems to me to be as follows:

As I read Freedman J’s judgment in Karalis at [78], [81] and [105]-[106], he was primarily addressing the question of evidential burden. In that case, there was no issue on the pleadings that the briefing officer had procured the arrest, or lied and accordingly he held that there was no burden on the chief constable, even evidential, to prove the briefing officer’s honesty. Still less was there any requirement to conduct a “roving search” of each and every person within the police force who was involved in the arrest in order to assess whether they held an honest suspicion on reasonable grounds and to adduce evidence from each of them to that effect. Thus, it was only necessary to consider the state of mind of the briefing officer where there was a specific allegation of procurement by, for example, lying or direct order. Since nothing of this sort had been pleaded and since no issue was disclosed by the evidence, the issue was rightly withdrawn from the jury.

In my judgment, this analysis is entirely orthodox and supports the approach I have outlined above. I do not regard Karalis as being in any way incompatible in this regard with Lifestyle which, as already noted, did not purport to address the question of procurement or the incidence of the burden of proof.

Where the briefing officer/informant’s conduct or honesty is put in issue, the nature and quality of the evidence required to discharge the defendant’s evidential burden will vary depending on the circumstances. If the defendant is only put to proof, apparently credible evidence which is not contradicted is likely to be sufficient. Where, by contrast, a positive case is put forward which is disputed, that will require an evidential trial unless it can be said that – taking the claimant’s case at its highest – there is no real prospect of success. In the words of Bingham MR in Davidson at 604h “was there information properly to be considered by the jury as to whether what Mrs Yates did went beyond laying information before police officers for them to take such action as they thought fit and amounted to some direction, or procuring, or direct request, or direct encouragement that they should act by way of arresting these defendants.” See also the judgment of Ritchie J in Clark v Chief Constable of Merseyside Police, [2023] EWHC 2565 (KB) at [54].

In the present case, the Judge appears to have started and ended with the proposition that this case was indistinguishable from Karalis in that there was no allegation that PC Wade had lied or behaved maliciously, and on that basis she held that Mr Wimblett had no real prospect of showing procurement by the mere issue of a PNCN. With the greatest respect to the Judge, I fear that she may have fallen into error in this regard. In his Particulars of Claim, Mr Wimblett asserted that his arrest was “directly procured by PC Wade, by way of his circulating the request on the PNC.” As I have held above, I agree with the Judge that the mere issue of a PNCN does not amount to a procurement without more. However, the Particulars of Claim then went on to allege positively that the requirements of section 24 of PACE were not satisfied at the date the PNCN was circulated. Thus:

To that extent, and despite Ms Hirst’s submissions to the contrary, I regard the case as materially different to Karalis where no issue at all was raised as to the state of mind of the briefing officer. Here, by contrast, Mr Wimblett positively averred that the PNCN was not honestly issued, and although (obviously) he could not himself give evidence as to PC Wade’s state of mind, he was prima facie entitled to test the evidence adduced in PC Wade’s written statement.

It follows that the Judge could only properly have dismissed the claim if she was satisfied that, taking Mr Wimblett’s case at his highest and bearing in mind that the burden of proof on the Chief Constable was only evidential, there was no material properly to be considered by the jury in relation to procurement. That said, if she nonetheless arrived at a result which was open to her on a correct approach, her decision will have been neither wrong nor unjust and there is no basis for interfering with it.

Mr Wimblett’s specific averments are framed by reference to section 24 and it is convenient to dispose at this stage of one discrete matter. In so far as it was suggested, I cannot accept that in a briefing/information case it is necessary for the requirements of section 24 to be satisfied as such with regard to the briefing officer. As the Court of Appeal held in Hough, such an approach would be wholly inconsistent with O’Hara. See also Karalis at [105]. This is not to say that the state of mind of the briefing officer in a briefing/information case is completely irrelevant. Quite the contrary, since whether or not the briefing officer had an honest suspicion on reasonable grounds may be a very material consideration in deciding whether he strayed beyond the mere provision of information into directly requesting and encouraging the arrest: Ahmed at [86]. See also Barkhuysen at [138] where the lack of any reasonable objective basis for the allegation in question was referred to in the context of a finding that the informant had deliberately lied.

On the other hand, it would in my view not only be impractical but also unprincipled to require the briefing officer, at the time he provides information, to hold an honest belief on reasonable grounds as to the necessity of arrest at a point in the future which he cannot know and which he is incapable of predicting. Whether or not he holds such an honest and reasonable belief at the date of the briefing cannot in any event be relevant for the purposes of section 24 which applies only at the actual point of arrest. The most that can be said, therefore, is that a positive belief on the part of the briefing officer/informant when he provides the information that it is not necessary to arrest the claimant may be evidence of procurement whereas mere absence of an honest belief may or may not. It could be, as in this case, that the briefing officer regards necessity to arrest as a matter exclusively for the arresting officer and so does not have any particular view himself. As for reasonableness, if the briefing officer did not honestly believe that an arrest was necessary, it hardly matters whether there would have been reasonable grounds for such a belief if he had. Conversely, if he did honestly believe an arrest to be necessary, it is difficult to see why it should make any difference to the question of procurement that his honest belief was not supported by objective reality, save, of course, to the extent that lack of reasonable grounds casts doubt on his honesty in the first place.

On the basis that the requirements of section 24 did not have to be satisfied as such in relation to PC Wade, I turn to Mr Wimblett’s pleaded case.

Paragraphs 24/25: These paragraphs relate to PC Wade’s suspicion that Mr Wimblett had committed a breach of the NMO. No positive allegation was made that PC Wade was dishonest or lied in relation to his suspicion. The Chief Constable was merely put to proof. However, in the absence of any contrary evidence, there was no basis for rejecting PC Wade’s written evidence that he suspected a breach of the NMO on the basis of the information available to him.

As for the alleged non-existence of reasonable grounds for any such suspicion, as already discussed, I regard this as irrelevant save to the extent that it can be said to have undermined PC Wade’s honesty. However, only three matters were relied upon in paragraph 25 of the Particulars of Claim and even these were not advanced as reasons for concluding that PC Wade had not acted honestly.

In these circumstances, and although the Judge did not analyse it in this way, I consider that PC Wade’s evidence was sufficient as it stood to discharge the Chief Constable’s burden of proof in this regard and nothing alleged on behalf of Mr Wimblett was capable, even if true, of undermining that position.

Paragraph 26/27: These paragraphs relate to the alleged absence of any honest belief on the part of PC Wade, held on reasonable grounds, that it was necessary to arrest Mr Wimblett. It was not averred that PC Wade positively believed that it was unnecessary to arrest Mr Wimblett.

Paragraph 26 sets out five reasons why it is said that PC Wade lacked an honest belief, none of which is inherently incompatible with honesty. As to the specific sub-paragraphs:

In my judgment, none of the pleaded matters was capable of giving rise to any serious issue as to PC Wade’s honesty, particularly given his uncontradicted evidence that the question of necessity was for the arresting officer at the time of arrest rather than for him. In those circumstances, the alleged lack of reasonable grounds adds nothing.

In summary, on an evaluation of the pleadings and the evidence, and recognising that it was theoretically possible that in Mr Murray’s skilful hands, cross-examination of PC Wade might have revealed the entire PNCN to be based on a tissue of lies, I nonetheless regard this as fanciful. Once the submission that the PNCN was itself sufficient procurement had been dismissed, there was no real prospect that even after a full trial of the facts, a jury would find on the basis of the allegations in the Particulars of Claim that PC Wade had lied or acted dishonestly or with any wilful culpability in relation to the PNCN.

In my judgment there was therefore no material which properly fell to be considered by the jury in relation to procurement and, albeit for slightly different reasons, I consider that the Judge was correct to find that Mr Wimblett had no real prospect of showing that PC Wade procured his arrest. It follows that the claim based on accessory liability was rightfully dismissed on this ground and the appeal fails.

Although I was referred by Mr Murray to cases dating back to the 18^th and 19^th centuries, I can pick up the story somewhat more recently with the decision of the Court of Appeal in Davidson v Chief Constable of North Wales, [1994] 2 All ER 597. In that case, a store detective honestly but mistakenly believed that the plaintiff and his friend had been shoplifting. She informed the police and, when they attended, pointed them out. They were thereupon arrested but subsequently released when it became apparent that no shoplifting had occurred. The plaintiff sued both the police and the store detective for false imprisonment. The trial judge dismissed the claim against both defendants on the basis that (i) the police were protected from liability by s.24 of the Police and Criminal Evidence Act 1984 (“PACE”) since the information provided to them by the store detective afforded reasonable grounds for the arrest; and (ii) there was no case to answer as regards the store detective since the police had acted independently and exercised their own judgment. The plaintiff appealed the dismissal of the claim against the store detective.

Giving the leading judgment, Sir Thomas Bingham MR (as he then was) noted that the store detective had not herself arrested the plaintiff but had merely given information to the police. He also observed that the police were protected from liability by s.24 of PACE and that it would therefore be somewhat anomalous to hold the store detective liable for an act of persons who were not themselves liable for what they had done. Nonetheless, after considering the authorities, he concluded that there could be liability in such circumstances and that:

“what distinguishes the case in which a defendant is liable from a case in which he is not is whether he has merely given information to a properly constituted authority on which that authority may act or not as it decides or whether he has himself been the instigator, promoter and active inciter of the action that follows.” (At 602d.)

Accordingly, the relevant question for the judge in the case before him was:

“whether there was information properly to be considered by the jury as to whether what [the store detective] did went beyond laying information before police officers for them to take such action as they thought fit and amounted to some direction, or procuring, or direct request, or direct encouragement that they should act by way of arresting these defendants.” (At 604h.)

On the facts, the Court of Appeal concluded that the trial judge had been correct to withdraw the case from the jury, but the decision clearly recognises that, in principle, someone who procures a tort may incur liability even if the primary actor can avail himself of a defence.

In O’Hara v Chief Constable of the Royal Ulster Constabulary, [1997] AC 286, the issue was the extent to which an arresting officer could rely on information provided to him at a briefing session given by investigating officers in the same force in order to establish that he reasonably suspected the plaintiff to be involved in terrorism. Although the information provided was described as “sparse”, the trial judge held that it was sufficient to permit an inference that the arresting officer was given enough to constitute reasonable grounds, and his decision on this point was upheld.

This decision authoritatively laid down the principle, now well-established, that it is only the state of mind of the arresting officer which is relevant for the purposes of applying s.24 of PACE. The question of accessory liability on the part of the briefing officer did not arise for decision. However, the following comments are of relevance:

“Given the independent responsibility and accountability of a constable under a provision such as [the pre-s.24 equivalent] it seems to follow that the mere fact that an arresting officer has been instructed by a superior officer to effect the arrest is not capable of amounting to reasonable grounds for the necessary suspicion within the meaning of [the section]. It is accepted, and rightly accepted, that a mere request to arrest without any further information by an equal ranking officer, or a junior officer, is incapable of amounting to reasonable grounds for the necessary suspicion. How can the badge of the superior officer, and the fact that he gave an order, make a difference? In respect of a statute vesting an independent discretion in the particular constable, and requiring him personally to have reasonable grounds for suspicion, it would be surprising if seniority made a difference. It would be contrary to the principle underlying [the section] which makes a constable individually responsible for the arrest and accountable in law…” (Per Lord Steyn at 293.)

“The test which [the section] has laid down is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.” (Per Lord Hope at 298.)

Lord Hope also cited the following passage from the judgment of Carswell J in Hanna v Chief Constable of the Royal Ulster Constabulary, [1986] N.I. 103, 108:

“It was argued that because a person who wrongfully directs another to arrest a third is liable in tort to the arrested person for damages, it follows that the existence and reasonableness of the suspicion of the senior officer who gave orders to the arrestor to arrest the plaintiff must be relevant. This is in my view a non sequitur. It is of course correct that if A orders B (whether B be a policeman or not) to arrest C, it is an imprisonment by A as well as B, and if it is unjustified C can sue A for false imprisonment: see such cases as Wheeler v Whiting (1840) 9 C.&P. 262. I do not consider that it follows that one has to consider in the context of arrests under section 12 of the Act of 1984 the mind of anyone but the actual arrestor. In my view the wording of section 12(1) is intended to refer only to the arrestor himself, and it is his suspicion alone which is material, and not that of any person by whom he was given instructions.”

Although the particular point was not before the House of Lords, no doubt was cast on the suggestion that an order given by A to B to arrest C could give rise to liability on the part of A in appropriate circumstances.

O’Hara was applied by the Court of Appeal in Clarke v Chief Constable of North Wales, [2000] WL 345127. The only point of interest for present purposes is the passing comment of Sedley LJ at [23] that:

“… if the briefing officer has told the arresting officer that there is reliable information when there is not, the Chief Constable may become vicariously liable for a wrongful arrest – but on behalf of the briefing officer; not of the arresting officer.”

It is not clear whether Sedley LJ was intending to limit this comment to deliberate misinformation but it should be noted that he was referring to vicarious liability for a wrongful arrest.

Hough v Chief Constable of Staffordshire, [2001] WL 14912 concerned facts closer to the present case where an arresting officer acted on the basis of information entered on the PNC. The question for the court was whether in these circumstances the test of reasonableness fell to be applied to the officer making the arrest or the officer who put the information on the computer. The Court of Appeal roundly rejected the suggestion that reasonableness fell to be assessed by reference to the state of mind of the officer who made the entry on the PNC, considering that this was inconsistent with O’Hara. Giving the judgment of the court, Simon Brown LJ nonetheless also commented at [18]-[19] that:

“Even… when, as here, the entry of itself provides sufficient – indeed ample – justification for an arrest, that may not leave the aggrieved citizen entirely without remedy. Certainly it would defeat a claim for wrongful arrest. Perhaps, however, a claim in negligence would lie against the officer making the entry in the first place (or perhaps for failing later to remove it) if it could be established that he had no proper basis for ever having made it. In considering any such claim, of course, one would recognise that the computer entry of itself was likely to lead to just such an arrest as occurred in the present case….

That, however, is a question for the future; no such basis of claim was advanced here.”

The next case, Alford v Chief Constable of Cambridgeshire Police, [2009] EWCA Civ. 100 has been the subject of some debate in subsequent authorities. This was a case where the arresting officer had reasonable grounds for his suspicion that the claimant was guilty of an offence on the basis of his knowledge and thus acted lawfully in making the arrest. Unbeknownst to him, however, those grounds were undermined by information which had become known some days earlier to the Inspector leading the investigation which the latter had failed to pass on. This failure was found not to have been wilful or deliberate.

On behalf of the plaintiff, it was submitted on the basis of Sedley LJ’s comment in Clarke (set out at paragraph 17 above) that the failure to pass on the information, albeit innocent, rendered the claimant’s arrest unlawful. The judgment of the Court of Appeal was given by Richards LJ who stated as follows at [38].

“The judge rejected that submission, saying that Sedley LJ’s words must mean that if in the circumstances there is a tort committed by officers withholding material, such as misfeasance in public office, then the chief constable would be liable for that. I agree with the judge. The lawfulness of an arrest depends, as I have said, on whether the arresting officer has a genuine suspicion and there are reasonable grounds for that suspicion. If, as was the premise of Sedley LJ’s observation, the arresting officer has such a suspicion and the briefing provides reasonable grounds for the suspicion, the arrest will be lawful. In those circumstances the omission of relevant material from the briefing cannot possibly render the briefing officer liable for wrongful arrest, since there is no wrongful arrest for which he can be liable, whether as sole or joint tortfeasor. On the other hand, the deliberate withholding of relevant material, leading to an arrest that would not otherwise have taken place, might render the briefing officer liable for misfeasance in public office.”

It is noteworthy that there is no mention in the judgment of Davidson,which does not appear to have been drawn to the court’s attention, although that may be because it was not a case where accessory liability was either alleged or argued. However, it is, with respect, difficult to see that Sedley LJ can have been referring in Clarke (or referring exclusively) to liability on the part of the briefing officer for an independent tort such as misfeasance in public office, since he referred expressly to the chief constable being vicariously liable through the briefing officer for wrongful arrest, but since he did not elaborate on the point, quite what he had in mind remains opaque.

Ahmed v Shafique, [2009] EWHC 618 (QB) was a case where the defendants had reported the claimant to the police alleging theft from a business in which one of them was a partner with the claimant. The police attended and were actively encouraged by the defendants to arrest the claimant, which they did. In fact the accusation of theft was based on a misunderstanding and the claimant was released without charge. He sued the defendants for false arrest on the basis that they had procured the arrest in circumstances where the arresting officer had conducted no investigation and made no enquiries of his own but acted solely on the information given to him by the defendants.

Sharp J (as she then was) distinguished the torts of false imprisonment and malicious prosecution, pointing out that the gist of the former was the mere imprisonment which, of itself, established a prima facie case which it was for the defendant to rebut by proving justification. In the latter, by contrast, the claimant was obliged to prove malice and lack of reasonable and probable cause as part of his cause of action. She continued:

“86.

On one view, it might be thought that the state of mind of the informant should be irrelevant to the (apparently) objective question as to whether they had, or had not procured an arrest. But there are obviously sound reasons why a malicious informant who knowingly gives false information to the police (which they are not in a position to check) with the intention of bringing about an innocent person’s prosecution and conviction should be held to account. Similarly, it might be thought, if an individual maliciously procures an arrest… The position is otherwise it seems to me in a case where a person (such as the store detective in Davidson) gives information in good faith which is merely mistaken. Whilst the Claimant does not accept the bona fides of the Defendants in these proceedings, nonetheless it is not suggested on his behalf, that he must prove malice in order to establish a prima facie case.

87.

It seems to me therefore the test I am bound to apply in determining whether the Defendants procured the Claimant’s arrest is that identified in Davidson. Were the Defendants responsible for the Claimant’s arrest by directing or requesting, or directly encouraging the officers to arrest the Claimant; and in that respect did they go beyond laying information before police officers for them to take such action as they saw fit?”

On the facts of the case, which she described as unusual, she held that they did, and that the police had not made any reasonable investigation or exercised any independent judgment of their own. Liability was accordingly established.

Iqbal v Prison Officers Association, [2009] EWCA Civ. 1312; [2010] QB 732 was a rather different case which concerned a prisoner who was lawfully in custody. However, due to a strike by the Prison Officers Association, the governor ordered all prisoners to be confined to their cells for 24 hours and they were not allowed out as usual to work or exercise. The claimant sued the POA for false imprisonment. The main grounds raised in defence were that (i) the prison officers could not be liable for mere inaction; (ii) the claimant’s incarceration was only the indirect result of the strike; (iii) the governor had authorised the claimant’s confinement in his cell; (iv) being lawfully imprisoned in the first place, the claimant had no right to be let out of his cell in any event.

The Court of Appeal held on the facts that the mere withdrawal of labour by the prison officers did not directly lead to the claimant’s confinement in his cell; that had resulted from the governor’s decision:

“27.

… The strike may have caused, indeed foreseeably caused, the governor to decide not to let the claimant out of his cell on 29 August, but that is a different thing. Of course, it must have been apparent to the officers that it was likely, indeed probably inevitable, that as a result of the strike prisoners would enjoy less freedom of movement within the confines of the prison than if there had been no strike. However, it is equally true that it must have appeared likely, indeed almost inevitable, to the store detective in the Davidson case that, once she laid credible information before a police constable that she had just seen the plaintiff shoplifting, the constable would arrest the plaintiff. Indeed, it was no doubt her intention and wish that the plaintiff be arrested, whereas there is no suggestion of a wish or intention on the part of the officers in the present case that the prisoners in the prison, let alone the claimant specifically, be confined to their cells as a result of the strike.”

The court accepted that it was inherent in the reasoning in Davidson, that, on appropriate facts, someone who procured an arrest could be liable for false imprisonment even if the primary actor was not. It also recognised that the prison officers might, for example, have incurred independent liability for false imprisonment if they had positively locked the claimant in his cell contrary to the governor’s instructions that he be allowed out for recreation, but that was not the case before it.

Much reliance was placed by Mr Murray before me on R (M) v Hackney London Borough Council, [2011] EWCA Civ. 4; [2011] 1 WLR 2873, which was a case in the specific context of mental health legislation. Acting in good faith, an approved mental health professional (“AMHP”) applied for the claimant to be admitted to and detained in hospital under section 3 of the Mental Health Act 1983. Under section 6(3) of the Act, the hospital was entitled to act on the basis of an application which appeared to have been duly completed. In fact the application was unlawful and prohibited because the claimant’s nearest relative had objected to the application. The claimant brought judicial review proceedings against both the local authority (which was vicariously liable for the actions of the AMHP) and the hospital authorities claiming, amongst other things, damages for unlawful detention. One of the questions for the Court of Appeal was whether the claimant’s detention was unlawful by reason of the AMHP’s unlawful application. Citing Davidson, the court held that:

“35.

The principle is therefore recognised at common law that there may be false imprisonment by A, although it was B who took the person into custody and B acted lawfully, provided that A directly caused B’s act and that A’s act was done without lawful justification.

…

37.

In the present case the hospital trust acted lawfully in detaining M by virtue of section 6(3), just as the police officers acted lawfully in the Davidson case…

38.

However, it does not follow from the fact that the hospital managers detained M in the lawful exercise of their power under section 6(3) that he was not wrongfully deprived of his liberty by the unlawful conduct of the AMHP. On the facts of the Davidson case there was no liability on the part of the store detective because she did not directly request or encourage the police to arrest the claimants. By contrast, it would be difficult to imagine a more direct case of one person wrongfully causing another to detain someone than the present case. The AMHP made an unlawful written application to the hospital trust for M’s admission; and acting on the facts stated in the application, as section 6(3) authorised it to do, the hospital trust detained him.

39.

It follows that, on ordinary principles of common law, M’s detention was unlawful inasmuch that it was brought about directly by the conduct of the AMHP for which she had no lawful justification, notwithstanding that she acted in complete good faith…”

The next case is R (Tchenguiz) v Director of the SFO, [2012] EWHC 2254 (Admin); [2013] 1 WLR 1634. The claimant in this case was the subject of an investigation by the SFO following the collapse of an Icelandic bank in 2008. On the basis of information provided to the police by the SFO, he was arrested. It was subsequently accepted that the information, although apparently reliable, was in fact incorrect and the claimant challenged the lawfulness of his arrest. He argued that where an arresting officer is misled into believing that there are reasonable grounds for arrest by another state agent responsible for law enforcement, and that state agent is on notice that the information he is providing to the arresting officer is incorrect or incomplete, then the law should grant a narrow exception to the O’Hara principle.

In dismissing this argument, Thomas P (as he then was) sitting in the Divisional Court with Silber J, noted the separation of roles between the SFO and the police and stated that:

“224.

This… explains why we are unable to accept the case for [the claimant] that because the police and the SFO worked closely and hand in hand and therefore became part of a joint investigating team, there ought to be an exception to the O’Hara principle…”

He likewise rejected a submission that an exception was required in order to ensure protection of the claimant’s rights under the ECHR since it failed to take account of the decision in Davidson that liability could be imposed on someone who was responsible for the arrest by having directed or procured or directly requested or encouraged it:

“231.

The position was therefore that, if the facts supported that contention, [the claimant] could contend that his arrest was procured or directly requested by the SFO and so it should be liable for false imprisonment, which is a tort of strict liability and which does not require proof of malice. That would meet the justice of the case in the light of the respective responsibilities of the police and the SFO.

232.

It is important to note that Mr Eadie accepted on behalf of the SFO that the City of London police were acting as a conduit for the SFO or as their agents. To the extent there were issues in relation to the lawfulness of the arrest, Mr Eadie accepted that was the responsibility of the SFO.

233.

In addition, if a claimant could prove that a third party procured an arrest maliciously and without reasonable and probable cause, an action for malicious arrest could also be brought….

234.

We are therefore unable to accept that there is any basis for contending that there should be an exception to the O’Hara rule of the kind contended for by Lord Macdonald.”

Commissioner of Police of the Metropolis v Copeland, [2014] EWCA Civ. 1014 was a case where it was alleged that the briefing officer(a police officer) had lied in accusing C of having punched him in the face during an incident at a police station. The arresting officer had not witnessed the relevant events and was entirely dependent on what she was told by the briefing officer.

A question arose as to the incidence of the burden of proof which the Court of Appeal addressed as follows:

“18.

This case is not, however, concerned with [the arresting officer’s] state of mind at all. That state of mind was entirely influenced by and dependent upon what she was told by [the briefing officer]. If [the briefing officer] deliberately lied, as alleged, then Ms Copeland’s arrest, which was attributable to [the briefing officer’s] allegation and nothing else, was unlawful, and, there being no issue as to causation, resulted in an imprisonment which was false.

19.

It is for the police to establish the lawfulness of the arrest… Where that arrest was procured by someone who has deliberately lied and procured or directly encouraged an arrest, then the arrest is unlawful. In Davidson v Chief Constable of North Wales, the question was whether a defendant to a claim for false imprisonment has “himself been the instigator, promoter and active inciter of the action (namely, the arrest that followed)”… In short, the question was not whether the arresting officers had acted innocently but whether the arrest was unlawful by reason of the conduct of the informant in procuring or directly encouraging that arrest by false evidence.

20.

It is not and was not disputed that the burden of proving the lawfulness of the arrest lay upon the Commissioner. The claim for false imprisonment was based on the absence of lawful authority for the underlying arrest. It was for the Commissioner to prove that the arrest was lawful and that, accordingly, there was lawful justification for the detention. The Commissioner could not do so unless he established that [the briefing officer] was acting in good faith in requesting [the arresting officer] to arrest Ms Copeland. As Toulson LJ put it in R(M) v Hackney LBC:-

‘Lawfulness or unlawfulness is an attribute of the conduct of the defendant which caused the claimant’s loss of liberty.’

21.

The legality of the arrest and therefore of the detention turned on the legality of the actions of he who caused it, namely, [the briefing officer]. Just as it was for the police to establish that the arresting officer … suspected that Ms Copeland had committed an arrestable offence and that she had reasonable grounds for doing so, it was no less for the police to establish that that was not on the basis of false evidence deliberately intended to procure the arrest of Ms Copeland.”

In R (Chatwani) v National Crime Agency, [2015] EWHC 1283 (Admin), the claimants were arrested by NCA officers following an investigation into money laundering pursuant to a plan to arrest them:

“in a deliberately boisterous way, and, during the time they were being held after arrest, to place covert surveillance devices in Kanta House whilst seizing documents there… They would then be released, in the hope that their arrest and questioning would ‘provoke a behavioural reaction on their release from custody which would ultimately allow for the capturing of unequivocal evidence which would enhance any prosecution against these individuals.’”

Unsurprisingly it might be thought, the claimants challenged the legality of their arrest in judicial review proceedings. The decision to arrest was made by a senior NCA officer, H. It was alleged that he had deliberately isolated the arresting officers from the true facts and that they had thus been manipulated into making sham arrests. The Divisional Court applied O’Hara and Tchenguiz in holding that, for the purposes of section 24 of PACE, the question of reasonable suspicion was to be determined on the basis of the facts known or information given to the arresting officer. If that disclosed reasonable grounds for suspicion, and if the arresting officer reasonably believed that the arrest was necessary on one of the statutory grounds, the arrest was not rendered unlawful simply because the information was thin or incorrect, even if it had been provided to him by a member of the investigating team who knew that it was misleading.

The court declined to deal with the question of whether there could be liability on the part of the NCA officers who had misled the arresting officers, on the basis that this was a fact-specific question which should properly be addressed in a Part 7 claim. For present purposes, therefore, it takes the matter little further.

Mouncher v Chief Constable of South Wales Police, [2016] EWHC 1367 (QB)was an immensely complex case involving the arrest of a number of police officers for perverting the course of justice in relation to a murder investigation. Wyn Williams J applied O’Hara in holding that the lawfulness of the arrest was to be approached by reference to the state of mind of the arresting officer. He then went on to consider the position where the briefing given to the arresting officer, while providing sufficient material to justify the arrest, nonetheless omitted material which would have caused the arresting officer to conclude on the basis of the entire material that in fact there were no reasonable grounds to arrest. Reference was made to both Alford and Copeland and the judge noted that there had apparently been no reference to Davidson in Alford, and no reference to Alford in Copeland. He continued:

“A similar approach to that taken in Davidson and Copeland was adopted in the Divisional Court in [Tchenguiz] – see, in particular, paragraphs 209-234. No doubt, at some point in the future, the Court of Appeal or Supreme Court may be called upon to determine whether there is any irreconcilable tension between the decision in Alford and decisions such as Davidson, [Tchenguiz] and Copeland. For my part, I am satisfied that I should follow the reasoning of the decisions in Davidson, [Tchenguiz] and Copeland. If, in due course, they can be reconciled with Alford so much the better; if they cannot I believe the law of precedent requires me to follow the line of authority which is the later in time. Accordingly, if, on the facts of the case in respect of any particular Claimant, it is appropriate for me to conclude that (a) Mr Coutts or Mr Penhale directed the arresting officers to carry out the arrests of the Claimant and (b) upon an objective analysis of the whole of the information available to them at the time of the arrest no reasonable grounds for an arrest existed but (c) the information provided to the arresting officer did justify an arrest albeit it was incomplete the arrest would be unlawful and either Mr Coutts or Mr Penhale or both (depending upon who and how they were involved) would be liable for false imprisonment and the Defendant vicariously liable for the tort.”

On the facts, he held that the claims failed save in relation to two claimants.

In Barkhuysen v Hamilton, [2016] EWHC 2858 (QB), the defendant was held liable for false imprisonment having deliberately lied to the police in bringing a charge against the claimant which led directly to his arrest. Applying Davidson, Warby J held at [142] that her report went well beyond merely laying information before the police for them to do as they saw fit. Realistically it had to be viewed as urging them to arrest the claimant and was “in substance a direct act of encouragement and procurement of the arrest and of what followed. The defendant is responsible for the arrest, and had no lawful basis for doing so.”

Birss J (as he then was) likewise followed Davidson in Ali v Heart of England NHS Foundation Trust, [2018] EWHC 591 (Ch), noting that the mere provision of information is not sufficient to create liability even if the informant has an intention and expectation that an arrest will follow. On the other hand:

“32.

… if a person deliberately invents a very serious false allegation to which they say they are a witness and which the police would be in no position to check and puts that allegation to the police so that the police officer’s discretion is effectively removed, therefore procuring the claimant’s arrest, that person commits the tort because in those circumstances they are responsible for the arrest. Such a person has gone beyond laying information before police officers for them to act as they saw fit. On the other hand a person who merely gives information in good faith albeit mistakenly does not commit the tort. To be liable they have to go beyond that by directing, requesting or directly encouraging the officers to arrest the claimant, as a result of which the prosecuting authority could be said [to be] acting as their agent or whom the defendant procured to act as they did.”

Of relevance to the present case is the submission that was made, based on a comment in Barkhuysen and a passage in Clerk & Lindsell, that:

“35.

… if a defendant acting without bad faith merely gives information to the police which is in fact mistaken, one cannot say whether or not the defendant is liable without deciding whether the police felt compelled to act as a result of what they were told or whether the police took responsibility for their decision to arrest the claimant, as the police officers did in Davidson. I do not believe that is the law nor do I believe such a principle can be derived from Barkhuysen given its very different facts. Reasoning arising from a case in which the defendant invented allegations to procure an arrest she desired and intended does not readily transpose to cases in which information was provided without bad faith.

36.

In my judgment the distinction between merely providing information, and going beyond that to establish liability, at least in part, arises from the nature of this type of claim and liability. The essential test is whether what the defendant did had the effect of turning the police into their agent or as someone whom the defendant procured to act as they did. A defendant who merely provides information to the police in good faith is not procuring the claimant’s arrest even if it is practically inevitable that an arrest will follow. If the passage cited from Clerk & Lindsell which is referred to in paragraph 141 of Barkhuysen means something different then I disagree with it but I do not believe that is what the authors were saying. The authors were not seeking to say anything different from Davidson and Ahmed…”

Given that this was the lynchpin of the respondent’s case before me, the decision of Freedman J on appeal in Karalis requirescareful consideration. The underlying complaint in this case related to an allegation of rape. The initial information provided suggested that the appellant was one of those involved. On 7 June, on the basis of that information, the senior investigating officer, DS Judge, completed a PNCN identifying the appellant under a previous name as being wanted for rape. The PNCN referred to certain forensic evidence in support of the identification of the appellant. At the same time, he also completed a High Priority Arrest Request (“HPAR”) referring to the rape and how enquiries had identified the appellant as a suspect. Two days later, on 9 June, information was received by the police which cast doubt on the identification, although the evidence was unclear as to when DS Judge himself became aware of this. Meanwhile, on 10 June, PC Sanders received the HPAR and was asked by her sergeant to arrest the appellant which she did, in ignorance of the further information.

The jury found that the arresting officer both honestly suspected the appellant to be guilty and honestly believed it necessary to arrest him. It was submitted on behalf of the appellant in reliance on Copeland, that the respondent also had to prove that DS Judge likewise honestly suspected that the appellant was guilty of rape and honestly believed that his arrest was necessary. The trial judge distinguished Copeland and held that it was only the arresting officer’s state of mind which was relevant. She accordingly withdrew these questions from the jury. After the jury had been discharged, submissions were made as to whether the respondent could establish objectively reasonable grounds for the arrest as at 10 June, given the further information which had been received by then which was within the knowledge of the police. The judge determined that it was again only the mind of the arresting officer which was relevant and that the respondent had discharged its burden in that regard, although she accepted that whether DS Judge had objectively reasonable grounds based on the information in his mind was relevant to that burden. She further held that it was not necessary for the respondent to prove that DS Judge honestly suspected that the appellant was guilty of the offence but that he did have reasonable grounds for suspicion notwithstanding the further information.

The issue before Freedman J was whether the trial judge was wrong not to put to the jury the question of whether DS Judge honestly suspected the appellant to be guilty at the time of the arrest. Freedman J was likewise referred to the long line of cases referred to above, each of which he analysed with care, although as he pointed out, correctly, every case ultimately depends on its own particular facts.

In relation to the suggestion in Mouncher that there may be an irreconcilable tension between Alford and Copeland, he said this:

“74.

… Although there is an odd lack of citation in the cases (Alford of Davidson, and Copeland of Alford), I do not regard the cases as fundamentally at odds. As regards Copeland, the essence of the case was that the briefing officer, PC Bains, had deliberately lied. The effect of the lie was that the subsequent arrest was due to the lie of PC Bains. Another way of expressing the same things was that it was based on false evidence deliberately intended to procure the arrest of Ms Copeland, and having that effect. If there is a case where the briefing officer simply gives an instruction to an arresting officer to arrest a suspect, where the latter without more acts on that instruction, then the arresting officer will be acting wrongly: see the extract from O’Hara at 301H…

75.

This does not detract from the principle that in most cases, the arresting officer will be the sole person whose suspicion is to be considered. As noted by Stuart-Smith J in Parker, and from his citation of O’Hara, the arresting officers are entitled to rely upon information provided to them by investigating or briefing officers, but they may not simply obey orders. They must then decide whether to exercise their discretion to effect the arrest. It will be up to the arresting officers to assess the information bearing in mind its “source” and “its context, seen in the light of the whole surrounding circumstances”, referring back again to the words of Lord Hope in O’Hara at p.298E.

76.

That is why it is out of the norm for the briefing officer to be liable by themselves or jointly with the arresting officer for a wrongful arrest. There are exceptions including the case of the lying briefing officer. In such cases, it is as if the briefing officer is making the arrest, such that the Court may need to consider the honesty and the reasonableness of the suspicion of the briefing officer in addition to that of the arresting officer, alternatively whether the briefing officer is guilty of misfeasance giving rise potentially to vicarious liability of the chief constable. There may be another exceptional case where an instruction is given on the part of the briefing officer to the arresting officer who then acts on that instruction without more. In such a case, there might be a failure on the part of the arresting officer to exercise any discretion at the point of arrest. In those circumstances, questions will arise as to whether the briefing officer is liable in addition to the arresting officer.

77.

I respectfully do not detect a tension between these Court of Appeal cases such that I do not have to decide which is binding on me. I am able to follow both of them. Like Stuart-Smith J, I find that I am not constrained to follow Alford: on the contrary, I follow both Alford and Copeland.”

Freedman J then went on to consider how this conclusion related to the burden of proof on the chief constable to prove the honesty of the relevant officers/persons. He continued:

“78.

… Thereis no principle in the authorities which states that in a case such as the present one a Chief Constable is required to prove that both the briefing officer and the arresting officer each honestly suspect the Appellant of an offence and, that in respect of each officer, their suspicions are objectively reasonable. It is not the case that a roving search of each person within the police force involved in every arrest and detention and an assessment of whether they honestly held a suspicion and whether there were reasonable grounds for the same. The matter is well put at para. 35 of the skeleton argument of the Respondent which reads as follows:

‘The Particulars of Claim set out particulars of false imprisonment which focus entirely on the Appellant’s arrest and at no stage impugn or challenge the conduct of DS Judge. It is no answer to this for the Appellant to state that the Respondent bears the burden of proof. This is to confuse the identification of issues (the responsibility of both parties) with the burden of proof (which lies with one party). The Appellant has repeatedly suggested that he is not obliged to articulate why it is that he says that his arrest was unlawful because it is the Respondent who bears the burden of proof; this is misconceived and, as identified by [the Judge] results in a trial that is a “moving feast”.’”

Applying this to the facts of the case before him, he held that there was no reason to depart from the general starting point that the focus should be on the state of mind of the arresting officer and no-one else. It was not a case where the briefing officer had lied as in Copeland and so was to be treated as having instructed the arresting officer. It was not a case where the police was required to prove the honesty of anyone other than the arresting officer and the judge was accordingly not at fault in withdrawing the question of DS Judge’s honest suspicion from the jury.

It was then submitted to him that Copeland was not limited to the situation where the briefing officer had acted in bad faith but also included a situation whereby the briefing officer, albeit in good faith, had nonetheless directed, instructed or procured the arrest, and that the HPAR was just such a direct request which entitled the court to treat the briefing officer as potentially liable in addition to the arresting officer. In relation to this he stated as follows:

“85.

What of the context of information passed on within the police? This was referred to in O’Hara, namely of investigating officers passing the matter on for an arrest by an arresting officer. That is how policing often works in a collaborative manner. In the words of Sedley LJ in Clarke quoted above: “Policing would otherwise be a practical impossibility.” There may be an investigating team within which a briefing officer may make a request for an arrest, perhaps to a number of persons in a variety of locations. The latter would then consider the request and, if appropriate, seek out the suspect and then, if appropriate, effect the arrest.

86.

The arrest generally is that of the arresting officer and not of a briefing or investigating officer. There has been in this case a use of language which does not give rise to the arresting officer acting on the instructions of the investigating officer. The fact that the HPAR is a request for the arrest of a suspect does not give rise to a departure from the norm. Without more, it is still the usual case of the arresting officer being charged to consider an arrest on the information made available to them.

…

103.

The authorities referred to above show that it is a principle at common law that ‘There may be false imprisonment by A, although it was B who took the person into custody and B acted lawfully, provided that A directly caused B’s act and that A’s act was done without lawful justification.’ (see Toulson LJ in TTM quoted in Copeland at [20]).

104.

What amounts to an ‘act done without lawful justification’ is plainly a fact-sensitive and context-sensitive question, and requires, amongst other factors, consideration of who parties A and B are (whether one is a civilian, another a police officer, or both are police officers) as well as the way in which A is said to have ‘caused’; B to take the person into custody.

105.

The case law referred to above including the cases of Copeland (deliberately false information provided by one officer to another), Davidson (simply information provided to the police by a store detective) and Alford (an inadvertent failure to pass on a favourable report) are not authority for the proposition that, in the context of an investigating officer providing a briefing to an arresting officer, it is necessary for the Chief Constable to prove that the briefing officer honestly suspected the person of an offence.

106.

There are other cases where this does arise. It might arise where there is a specific allegation that the conduct of the briefing officer was such that the arrest might be characterised as that of that person as well as that of the arresting officer e.g. the case of the lying briefing officer or the specific instruction of the arrest by the briefing officer and where the arresting officer acts on it without an exercise of discretion. Neither was this a part of the pleaded case nor did it arise on the basis of the evidence before the Court. DS Judge had been challenged as to the honesty of his suspicion, as set out in the extract from this evidence at paragraph 26 above, but one question by itself did not make the honesty of DS Judge into an issue: in fact, DS Judge denied that his suspicion was not honest, and the answer was not challenged or tested. The matters set out about the burden of proof in paragraph 78 above also apply: in the Judge’s words, these cases are not a “moving feast” such as to fasten on the mind of each and every person involved in the process from investigation to arrest or thereafter.”

In all the circumstances, Freedman J concluded that the judge had correctly applied the law in concluding that there was no requirement to ask the jury to consider whether DS Judge honestly suspected the appellant of rape. The appeal was accordingly dismissed.

Finally, I come to the decision of the Supreme Court in Lifestyle, the facts of which concerned accessory liability for trademark infringement and were a long way from the present context of false imprisonment. Nonetheless, the Supreme Court was clearly seeking by its unanimous decision to lay down some general principles concerning accessory liability and I must accordingly apply those principles, re-appraising the case law set out above as necessary in the process.

In Lifestyle, the appellant argued that accessory liability could be imposed where the accessory had either authorised or procured another person to commit a tort, or where it participated in a common design to commit a tort. It was not contentious that an accessory could be liable even though it had not itself committed any tort. Moreover, it was accepted by the respondents that their conduct had induced the relevant infringements. The dispute concerned the mental state required to make them liable for the infringements as accessories.

Like false imprisonment, trade mark infringement is a tort of strict liability and the principal argument before their Lordships was whether accessory liability in that situation was also strict. This submission was roundly rejected by the Supreme Court on the basis that:

“85.

… It seems unjust that anyone whose act causes another person to commit a tort should be held jointly liable for the tort as an accessory if the individual was acting in good faith and without knowledge of facts which made the act of the other person tortious.”

…

90.

… I cannot agree that a rule that the mental element required for liability as an accessory must mirror that required for primary liability is “entirely logical”. Let me start with the example given in Spritebrand of the employee who commits trespass as a result of obeying the instructions of a director when neither of them knows that the act of the employee will amount to a trespass. I do not regard it as unjust that the director, who has committed no trespass himself and was unaware that his order would have that result, should “escape scot free.” What would be unjust is leaving the innocent employee who has obeyed the director’s instructions to bear the loss. That injustice is not removed by inflicting liability on another innocent individual as well. That merely compounds the injustice.

91.

… As I see it , the proper accommodation between the parties’ interests lies in recognising that an innocent employee who commits a tort of strict liability as a result of obeying an order given on behalf of the employer is entitled to an indemnity from the employer. The right to such an indemnity is an implied term of the contract of employment…

92.

Applying the same standard of knowledge to both parties would be a logical approach if procuring or inducing someone to commit a tort, or participating in a common design to do so, were simply another way of committing a tort. The characterisation of the parties as joint tortfeasors may encourage such a view. But it is not correct. The procurer or participant is not liable because all the elements of the tort are established in relation to them. They are liable even though they do not satisfy all the elements of the tort. Their liability is secondary or accessory in the sense that it arises from an act which is connected in some relevant way with the commission of a tort by someone else. There is no logical requirement that any mental element necessary to make them liable should be the same as any mental element which is a constituent of the tort.”

Turning specifically to the torts of inducing a breach of contract and inducing a tort, Lord Leggatt said this:

“99.

… Procuring a breach of contract is another example of a situation where the primary wrong involves strict liability but liability for inducing the primary wrong depends on knowledge.

…

101.

The House of Lords [in OBG v Allan, [2008] AC 1] also confirmed that such accessory liability arises only when the defendant intended to procure a breach of the contract. It is enough for this purpose that the defendant knowingly caused a breach of contract, even if the breach was seen only as a way to achieve some further desired objective (e g procuring Johanna Wagner to sing at your theatre) and not as an end in itself: see paras 42-43 (Lord Hoffmann) and para 192 (Lord Nicholls). Deliberately turning a blind eye counts as knowledge for this purpose: see paras 40-41 and 192.

Procuring a tort

102.

Liability for procuring a breach of contract does more than provide an analogy with liability for procuring another person to commit a tort. As Lord Hoffmann and Lord Nicholls (with whom the other law lords agreed on this issue) made clear in OBG v Allan, both forms of liability rest on the same underlying principle. This principle was stated in Lumley v Gye by Erle J, at p 232:

‘It is clear that the procurement of the violation of a right is a cause of action in all instances where the violation is an actionable wrong … he who procures the wrong is a joint wrongdoer, and may be sued, either alone or jointly with the agent, in the appropriate action for the wrong complained of.’

Although in this statement Erle J did not use the word “malicious”, it is clear from the context and from his judgment as a whole that – in common with all the members of the court – Erle J was concerned with cases where someone “maliciously” procures a wrong and that his statement of the law tacitly assumes that the defendant’s act is “malicious”. It is also apparent, as Lord Watson observed in Allen v Flood [1898] AC 1, 96, that the judges in Lumley v Gye regarded “malice” as “signifying in law, not that the defendant had been actuated by a bad motive, but that he had procured the commission of an act which he knew to be illegal”. At the subsequent trial, Lumley’s claim in fact failed, as the jury found that Gye was not aware, when he engaged Wagner, that she had no right to terminate her contract with Lumley… Although as a matter of causation Gye had procured the commission of an act which was a breach of contract, he did not know that the act which he procured was a breach of contract. He therefore lacked the state of mind required for accessory liability.

103.

In Allen v Flood, at p 96, Lord Watson … expressed the ratio of Lumley v Gye thus: ‘a person who procures the act of another … will incur liability if he knowingly and for his own ends induces that other person to commit an actionable wrong’ (emphasis added). Lord Watson also said, at p 106, that the principle of the decision was clearly explained by Erle J and described it as ‘an intelligible and a salutary principle.’ As Lord Watson expressed it, at p 107:

‘He who wilfully induces another to do an unlawful act which, but for his persuasion, would or might never have been committed, is rightly held to be responsible for the wrong which he procured.’ (Emphasis added.)

…

107.

… We have seen that what exactly counts as an intention for the purpose of the Lumley v Gye principle has been expressed in various ways: the words “maliciously”, “knowingly” and “wilfully” have all been used. But the requirement was precisely and authoritatively analysed by Lord Hoffmann and Lord Nicholls in OBG v Allan (see paragraph 100-101 above). That analysis is just as applicable whether the actionable wrong which the defendant procured is a breach of contract or a tort. What is required is that the defendant acted in a way that was intended to cause another party (the primary wrongdoer) to do an act which the defendant knew was a wrongful act (turning a blind eye being sufficient for this purpose).

108.

A further distinction needs to be drawn. In accordance with the principle that ignorance of the law is no excuse, liability cannot depend on whether the defendant knows that the act done by the primary wrongdoer is against the law. When courts refer to a requirement of knowledge that an act is wrongful, they must generally be taken to mean, not that knowledge of the law is required, but that the defendant must know the essential facts which make the act unlawful. The same applies to references to intention. Lord Templeman’s reference to a defendant who ‘intends and procures… that infringement shall take place’ should be understood in this sense. Lord Templeman should not be taken to mean that the defendant must have a sufficient knowledge of copyright law to know that the act which he intends to bring about will be a breach of copyright; only that the defendant must know the facts which make that act a breach of copyright.”