Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
THE HONOURABLE MR. JUSTICE McCOMBE
Between :
(1) Sonia RAISSI (2) Mohamed RAISSI | Claimant |
- and - | |
The Commissioner of Police of the Metropolis | Defendant |
Mr. Tim OWEN QC & Mr. Leslie THOMAS (instructed by Tuckers Solicitors) for the Claimant
Mr. Michael BELOFF QC & Mr. John BEGGS (instructed by Metropolitan Police Solicitors) for the Defendant
Hearing dates: 12 – 19 November 2007
Judgment
The Honourable Mr. Justice McCombe:
(A)Introduction
In this action the Claimants, Mrs. Sonia Raissi (“Mrs. Sonia”) and Mr. Mohamed Raissi (“Mr. Mohamed”), claim damages for wrongful arrest and false imprisonment against the Defendant, the Commissioner of Police of the Metropolis (“the Commissioner”). The claim arises out of the Claimants’ respective arrests on 21 September 2001 by officers of the Metropolitan Police Force in purported exercise of powers of arrest under section 41(1) of the Terrorism Act 2000. They were arrested and detained on suspicion of involvement in the terrorist attacks in the United States on 11 September 2001. The Claimants are, respectively, the wife and brother of one Lotfi Raissi (“Lotfi”) who was also suspected of involvement in those attacks. No charges were ever brought against either Claimant and each was released after interview and a period of detention. Mr. Mohamed was detained for some 41 hours and Mrs. Sonia for 4 ½ days.
Section 41 of the 2000 Act provides:
“A constable may arrest without a warrant a person whom he reasonably suspects to be a terrorist”
Section 40 of the Act defines a terrorist as including a person who
“is or has been concerned in the commission, preparation or instigation of acts of terrorism”
“…[E]very imprisonment is prima facie unlawful and it is for a person directing an imprisonment to justify his act”, per Lord Atkin in Liversedge v Anderson [1942] AC 206, 245.
Three questions have to be answered. These are posed in the judgment of Woolf LJ (as he then was) in Castorina v Chief Constable of Surrey 10 June 1988, unreported, at pp. 20-21 of the transcript:
“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, was there reasonable cause for suspicion? This is a purely objective requirement to be determined by the judge if necessary on the facts found by a jury.
3. If the answer to the two 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 has been exercised in accordance with the principles laid down by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. V Wednesbury Corporation (1948) 1 K.B. 223.”
In this case, only question 2 is in issue. It is not suggested that the arresting officers did not, subjectively, suspect that the Claimants were “concerned in the commission, preparation or instigation of acts of terrorism” (s. 40(1) of the 2000 Act). Nor is it suggested that if the officers had reasonable grounds for their suspicions that either of them was irrational in exercising the power of arrest. The only issue in each case is as to the reasonableness or otherwise of the grounds on which each of the officers acted, i.e. question 2 posed by Woolf LJ.
In addition, however, Mr. Beloff relies upon a separate point as justifying each arrest, even if he were to fail to make out reasonable grounds for the officers’ suspecting the Claimants to be “terrorists” (within the meaning of the Act). That is a defence of “necessity”, a necessity arising out of the extreme seriousness of the attacks in America and the public safety concerns arising out of them. Mr. Owen QC (with whom Mr. Thomas appeared) for the Claimants said, in a rhetorical flourish intended to demonstrate what he submitted was the objectionable nature of any such defence, that this point was “worthy of Mugabe”.
It is common ground that it is the state of mind of the arresting officer at the time of the arrest that has to be examined and then it has to be asked whether, in that state of mind, he or she had reasonable grounds for making the arrest. Accordingly, the evidence in this case has been within a very narrow compass. I have read the statements of the two Claimants as to what they say occurred before, at the time of and after the arrests. I did so, noting the submission of Mr. Beloff QC for the Commissioner (with whom Mr. Beggs appeared) that, for the purposes of any determination of quantum of damages hereafter, some of the facts stated will be in dispute. Further, as it is the state of mind of the arresting officers that is in issue, the Claimants’ statements are of marginal (if any) relevance. I have also heard the oral evidence of the two arresting officers, DC David Bredo (as he then was, now DS Bredo), in the case of Mr. Mohamed, and DC Samantha Miller, in the case of Mrs. Sonia.
I delivered an earlier interlocutory judgment, following argument at the opening of the trial, on a preliminary question relating to the extent to which the Commissioner was permitted to adduce evidence that might, on an agreed hypothesis, derive from a source excluded by the provisions of Section 17 of the Regulation of Investigatory Powers Act 2000 (“RIPA”). The evidence in issue was contained in statements from two senior Metropolitan Police officers who were not involved in the arrests. For details of the issues raised, I would refer to that judgment. However, in summary, I decided that the evidence in issue was, on the agreed hypothesis, caught by the exclusion in Section 17 of RIPA, but that in any event the evidence was unlikely to be of relevance because it did not go directly to the state of mind of Mr. Bredo and Miss Miller respectively at the time of the arrests: see O’Hara v Chief Constable of the RUC [1997] AC 286. Thereafter, Mr. Beloff confined his oral evidence to that of Mr. Bredo and Miss Miller alone. He did not raise any further argument, which I had left open to him, on the relevance of the remaining evidence of the two senior officers.
In his argument on the preliminary point Mr. Beloff submitted that this may be a case in which ultimately the court might have to have resort to sight of the excluded material (under the exception to Section 17 of RIPA to be found in section 18(7) and (8) of that Act) to avoid a substantial miscarriage of justice. However, in his final submissions, Mr. Beloff stated that, in the light of the evidence, the Commissioner did not himself seek to trigger section 18(7) of RIPA, although recognising that the matter remained one for the court. As will be seen, I do not consider that it is necessary to have recourse to that provision in this case.
(B) Facts
As is notorious, on 11 September 2001 terrorists in the United States of America murdered a very large number of people by flying hijacked passenger aircraft into public buildings in New York and Washington.
On 17 and 19 September 2001 the Anti-Terrorist branch of the Metropolitan Police Force (SO13) received from the Federal Bureau of Investigation (“FBI”) in the United States letters of request for information. The letters advised that Lotfi might have been involved in or have had prior knowledge of the attacks. The information imparted by the letters is summarised uncontroversially in the amended defences served in the action. I quote from paragraph 9 of the amended defence to Mrs. Sonia’s claim:
“The detail of the two FBI letters was as follows:
(i) Hani Hanjour was probably the hijacker who piloted American Airlines Flight 77 in to the Pentagon;
(ii) Another of the hijackers on Flight 77 was Nawaf Al-Hazmi;
(iii) An Arizona Driver licence issued to Lofti on 22nd January 1997 provides an address of 20003 North 23rd Avenue Apartment 306, Phoenix, Arizona 85027;
(iv) Lofti possessed a United States Department of Transportation FAA commercial pilot licence issued 8th October 1997. Pilot data disclosed he had 400 flying hours.
(v) A personal data form completed by Lofti on 18th March 1998 listed his address as 20003 North 23rd Avenue Apartment 392, Phoenix, with telephone number 602-580-9816.
(vi) An Airman Certificate and / or Rating Application signed by Lofti on 7th December 1998 identified him as a male citizen of Algeria born on 4th April 1974, of address 20003 North 23rd Avenue Apartment 302, Phoenix, Arizona 85027.
(vii) A letter dated 9th April 1998 for the Director of Student Services of Westwind Aviation Academy to the United States Immigration Office disclosed that Lofti abandoned a Westwind Aviation Academy program to enrol with a program at Jet Tech International, owing $2,572 when he departed.
(viii) On 2nd March 1998 the sum of $4,950 was wired to a Wells Fargo Bank account in the name of Lofti and Sonia Demolis from a Bank of New York account: the Bank Account address of Lofti and Sonia was 20003 North 23rd Avenue Apartment 302, Phoenix, Arizona 85027.
(ix) On 27th May 1998 the further sum of $8,003.02 was credited to the same Wells Fargo account, this time from Hazam Doudja of the Bank of New York.
(x) On 3rd December 1998 Lofti enrolled in the Federal Aviation Administration approved Boeing 737-200 Type Rating Course at Jet Tech International, Phoenix, Arizona, at a cost of $8,995 in class 98-3-121.
(xi) On 25th January 1999 Lofti completed Jet Tech International Boeing 737 Type Rating course.
(xii) Whilst he resided in Arizona, Lofti had a vehicle, which he registered in the of Maan Al Quraishi.
(xiii) Either in February or September 1999 Lofti purchased 757/767 manuals for $250.
(xiv) In February 1999 a letter to the United States Immigration Service indicated that Lofti was changing his immigration status, had completed B-737 Initial Type Rating, and planned to study a second program B-757/767 Initial Type Training, which was expected to last until 18th June 1999.
(xv) During a search by SO 13 (“Operation Odin”) of the home address of Amar Makhulif (aka Abu Doha) at 68 Earlsferry House, Earlsferry Way, Islington an address book was found which contained an entry “Red One Dahmani” (identified as being Redouane Dahmani) with the telephone number 602 586 9816. The FBI identified this as being Lofti’s telephone number. However, it will be seen that this is in fact one digit out (see paragraph (v) above).
(xvi) During Spring 2001:
(a) Lofti Raissi and Hanjour attended flight training at the same flight school, Jet Tech International, Phoenix, Arizona.
(b) Lofti spent a considerable time on a flight simulator at this school during the same period that Hanjour was using the simulator.
(c) Lofti undertook flight training on 737 type aircraft and purchased books for 757/767 type aircraft, at Jet Tech International;
(d) Hanjour and Al-Hazmi were room mates at Indian Springs Village Apartments, Mesa, Arizona, which they vacated on 31st March 2001, leaving a Saudi Arabian forwarding address.
(xvii) On 3rd May 2001 Lofti obtained a visa at the USA Embassy in London for travel to the USA on 11th June 2001, providing the address 113 Staines Road, Feltham, Mddx, and citing employment by Four Forces Aviation of Colbrook Berkshire. On the visa application Lofti indicated that he wanted to obtain flight training on B737/200-300 at K & S Aviation Service Inc, and indicated that he had been in the USA in October 1996.
(xviii) Lofti had a cheque account with Sonia Demolis whilst living in Phoenix. They were roommates at Indian springs Village Apartments, Mesa, Arizona.
(xix) Lofti was currently applying for an airline job in the USA.
(xx) Lofti had recently married a non-Muslim French woman he met in France, which his Visa Application revealed to be Soivia (sic) Raissi of Tunisia.
(xxi) Lofti’s current residence was 7 Cavendish Court, Coleridge Crescent, Colnbrook.”
At the time of the arrests (September 2001) Lotfi and Mrs. Sonia were living at 7 Cavendish Court, Coleridge Crescent, Colnbrook and Mr. Mohamed was living at 186 Harlech Gardens in Hounslow.
Upon receipt of the letters background work was carried out by the police prior to the involvement of the arresting officers. Part of this work was the preparation of an “Operational Briefing Order” by a DC Albert Wildgoose. As is clear from its terms, the order was prepared for the purposes of searches which were to be carried out at three addresses with which Lotfi was believed to be associated. The information contained in that note was as follows:
“Information/Intention
1. As a result of the terrorist attacks in the USA on 11 September, information has been received from the US authorities regarding the following person:
2. Hani HANJOUR, is believed to be the pilot who piloted American Airlines Flight 77 into the Pentagon. Investigation by the Federal Bureau of Investigation ascertained that HANJOUR attended flight training at Jet Tech International, Phoenix, Arizona during Spring of 2001. During this period a Lofti RAISSI (dob 4/4/74 Algeria) also attended this flight training centre. RAISSI spent considerable time on flight simulator training during the same period as HANJOUR.
3. RAISSI is also associated to an Ahmed RESSAM an individual arrested with explosives crossing the Canadian border during the 2000 millennium celebration.
4. Lofti RAISSI whilst residing in Arizona had a vehicle registered in the name of MAAN A ALQUARAISHI. (Reason for this is not known)
5. On September 18th, 2001 the American Authorities learned that K & S Aviation in Arizona had recent contact with RAISSI. RAISSI has previously furnished a forwarding address of 7 Cavendish Court, Coleridge Crescent, Colnbrook 3SI OQO. He had indicated that he was planning to attend further training at K & S in the future.
6. RAISSI is associated to two further addresses within the UK these are
a) 186 Harlech Gardens, Hounslow.
b) 68 Highgate Street, Birmingham, B12OXP
7. Search warrants have been obtained under schedule 5 Terrorism Act 2000 for the above address.
8. It is intended that police search the above addresses on Friday 21 September 2001 for relevant material that is likely to be of substantial value to a terrorist investigation. ”
It will be seen that the note contains no reference to either Claimant and does not mention any intention to effect arrests. However, on the third page of the note, the following passage appears:
“Power of Arrest.
Should the decision be made to arrest the subject or subjects they will be informed that they are being arrested under Section 41 of the Terrorism Act 2000 Reasonably suspected of being involved in the Commission, Preparation or Instigation of Acts of Terrorism.”
I was told by both Mr. Bredo and Miss Miller that late on 20 September 2001 they were each requested to attend a briefing, which was conducted by DI Sean Wanless, for the officers who were to search the premises identified in DC Wildgoose’s note. I am satisfied that it was indeed Mr. Wanless who conducted this initial briefing, notwithstanding some doubt expressed by Miss Miller as to the identity of the briefing officer, which was probed when she was cross-examined. She was referred to the fact that Mr. Wanless himself does not refer to such a briefing in his witness statement in the action. Mr. Bredo, however, who gave clear evidence that there was such a briefing, was not challenged on this point. Both arresting officers were clear that there was a general briefing before the officers were split up to be briefed further in relation to the separate premises with which they were to be concerned.
As appears from the briefing note, Mr. Bredo was to be concerned with the premises at 186 Harlech Gardens, where Mr. Mohamed lived. Miss Miller was to be with the team going to 7 Cavendish Court where Lotfi and Mrs. Sonia resided. In their witness statements each officer told me that he and she were informed at the briefing by DI Wanless that arrests were to be made. In paragraph 7 Mr. Bredo says, “It was clear that we were going to arrest the occupants”. (In the end, however, Mrs. Noor Raissi, Mr. Mohamed’s wife, who was present at 186 Harlech Gardens was not arrested.) Miss Miller says in paragraph 10 of her statement that, “DI Wanless said that…the intention was to arrest Lotfi, his wife Sonia and his brother Mohammed under the Terrorism Act”. However, each of the officers then goes on to set out the circumstances that in his or her mind justified the decision to arrest.
In Mr. Bredo’s case his evidence as to the particular circumstances relating to Mr. Mohamed are set out in paragraphs 12 to 22 of his witness statement as follows:
“12. …DI Wanless went through with us everything he knew about the Operation, that he had been told by the SIO, DCI MacBrayne. I recall being told that Lofti Raissi and his brother were very close and that Lofti Raissi had access to his brother’s house.
13. It was this latter point that was of paramount importance because Lofti was implicated with the 9/11 attacks, and thus the fact that he had access to Mohamed’s premises was very significant as we would naturally wish to preserve any possible evidence. There would be two reasons for it being imperative to preserve evidence, namely evidential development and public safety.
14. I would also wish to interview Mohamed Raissi. Sometimes one can invite a suspect for interview. But where the offence is within the remit of the Terrorism Act 2000 public safety is paramount and the preservation of evidence is part of achieving public safety, including by “preserving” the suspect himself, Mohamed. For example, he may have had forensic evidence upon his own person and we would want to place him in a white suit to preserve this. Arrest was the only mechanism realistically by which I could control him.
15. Mohamed was in my mind a suspect because, at the briefing, DI Wanless had made clear that Mohamed was the close brother to a significant 9/11 suspect. If I had asked Mohamed to attend as a volunteer and he had said no, I would have arrested him. Thus in reality he had to be arrested. There is no bail under the Terrorism Act 2000 and I needed some kind of control.
16. Lofti Raissi was plainly a serious suspect because of what the FBI had said. Mohamed was closely associated to Lofti his brother, and apparently a close brother. I noted that they lived near to each other (Berkshire and Middlesex). That would have been enough in my mind to form reasonable grounds. In my experience terrorists only trust very few people and the blood association is very significant. The magnitude of the 9/11 case made me think that those involved would confide in someone. My experience in terrorist cases suggests that terrorists confide in their close family. I have this experience from previous cases including an Irish republican terrorist case where the conspirators included two brothers and their sister who had a child with a third conspirator and a fourth conspirator. I had also picked up the propensity of family links within terrorism in my duties within SO13. …
18. Sometimes the purpose of confiding in your family is so that you may rely upon a non-participant to conceal or destroy potentially incriminating evidence out of loyalty. Or to turn a blind eye to your activities.
19. Who else would Lofti confide in but his brother and wife?
20. The fact that Lofti had access to 186 Harlech Gardens made those premises evidentially significant; and the occupier(s) of those premises significant. Had there been another male present who for example refused to provide me with his details, he might well also have been arrested to prevent him notifying co-conspirators and / or facilitating the destruction or removal of other evidence we did not know about.
21. I also understood that s.41 was a vehicle for me to get suspects into custody as a means of furthering the investigation.
22. On that basis, the decision had been made that Mohamed should be arrested for his possible involvement with his brother’s suspected terrorist activities, for him to be interviewed and for his house to be searched. As I will come onto, I agreed with that course. ”
In summary, therefore, Mr. Bredo recites five reasons for the arrest of Mr. Mohamed: (1) his close relationship with his brother and the physical proximity of their homes and the importance of family links in terrorist cases., (2) his ability to get access to Lotfi’s house, (3) the desire to interview him (4) public safety and (5) the preservation of evidence. Of these five grounds only (1) and (2) seem to relate to a reasonable suspicion of Mr. Mohamed being himself a “terrorist” within the meaning of the Act. The others might have some relevance to a “necessity” defence.
Miss Miller said that her grounds for arresting Mrs. Sonia emerged from a mixture of the briefings that she obtained, first in general terms from DI Wanless and later in a separate briefing from DI Evans for the team attending 7 Cavendish Court. She could not separate which information that she got from which briefing. In paragraph 16 of her statement she gives her grounds for making the arrest in the following terms:
“… I was satisfied from what I had been told that I had sufficient grounds in the circumstances to arrest Sonia Raissi. This was based upon what I had been told during both briefings and from what I had read on the briefing note. Sonia Raissi was the wife of an individual who I considered to be a suspect for a recent terrorist atrocity. I had reason to believe that she had been living with Lofti in Phoenix whilst he was undergoing flight training. The significance of this was that it was highly likely that she was aware of his activities and may have knowledge of his associates. Lofti and Sonia also shared a Wells Fargo bank account and I had been told that fairly significant sums of money had been paid into their account and used to support flight training. It is reasonable to assume as a joint account holder that she would have had full knowledge of these sums of money and the subsequent outgoings from the account. I had also been made aware that Sonia was currently working at the check-in for Air France at London Heathrow. A position of this nature could easily be used to facilitate the boarding of aircraft by an individual or individuals for an unlawful purpose and may also allow access to security related information that may assist in terrorism. It was based upon a combination of these and other factors that I have outlined in this statement at paragraph 10 that I formed my reasonable grounds for arrest in that I suspected Sonia Raissi was involved in the commission, preparation or instigation of terrorist acts in connection with the terrorist attacks in America on 11th September 2001.”
Miss Miller refers there to paragraph 10 of her statement. In that paragraph she says this:
“… In these particular circumstances weight was added to my grounds of arrest because of the proposal to arrest made by officers at a more senior level. I trusted their judgment and considered that they may be in possession of additional information or intelligence about the individuals in this investigation that may be sensitive in nature which I did not need to know. This is not uncommon in Counter Terrorism investigations.”
In paragraph 27 of his statement Mr. Bredo added this:
“Finally I would point out that John MacBrayne was “developed vetted”, I was not and thus it would not surprise me if MacBrayne was privy to further intelligence. I would not want to know what he knew. In fact I had and still have a high regard for MacBrayne who I recognised as an exceptionally good senior officer and thus although I would not hesitate to challenge any instructions from a senior officer, the fact that it was John MacBrayne considerably reassured me.”
It will be seen therefore that each of these officers relied, in making their judgement whether to arrest or not, on the fact that more senior officers might have other additional information to which they were not privy. They trusted the judgement of those officers in the light of the experience that each of them had of them. The extent to which arresting officers are entitled to rely upon such factors as this, in justifying an arrest, remained a matter of some difference between the parties on the law and I shall return to this.
The honesty of the arresting officers was not attacked by counsel for the Claimants. However, their credibility, in a broader sense, was challenged. In the case of Mr. Bredo, Mr. Owen cross-examined him as to the extent to which he was truly influenced by a perceived significance to arrest Mr. Mohamed because, in short, terrorists tended to act in family groups. He was invited by Mr. Owen to consider a schedule of persons involved in other anti-terrorist operations, all post-dating the events with which I am concerned, with some of which Mr. Bredo had a personal involvement. Mr. Owen’s point was that in these other operations there was no regular pattern on the part of SO13 to arrest family members of known suspects, simply on the basis of family connection.
Miss Miller was challenged by Mr. Thomas, junior counsel for the Claimants, in an able cross-examination, as to the true extent to which she relied at the time on the factors mentioned in paragraph 16 of her witness statement which I have quoted above. It was put to her that none of these matters appeared as justifications for the arrest in any of the documents originating from her more closely to the relevant events. She was taken to her “Incident Report Book” (“IRB”), the custody record for Mrs. Sonia and a witness statement made by her (Miss Miller) in Criminal Justice Act form, none of which refer to the specific matters upon which she now relies in her statement. Miss Miller’s response was that the other documents did not call for a fuller explanation: all that was required was a statement that the arrest had been effected under the relevant section of the Terrorism Act. It was put to her that the information given in paragraph 16 had been derived at least in part from documents, such as the FBI letters, which she had seen after the event. She acknowledged that in one case this was so, namely where she refers to the joint account of Lotfi and Mrs. Sonia being with the Wells Fargo bank. However, she insisted that the other factors were genuinely the reasons that were in her mind when she made the arrest.
For my part, having considered the officers’ evidence in the light of the answers given by them during penetrating cross-examination, I am quite satisfied that what each says in his or her statement in the action truly represents what each had in mind when the arrests were made. I accept that Mr. Bredo thought at that time that close family connections were material in terrorist cases for the reasons he gave. It may be that later experience might make him think differently now. But, I accept that he was telling me the truth when he said that then this was a matter of significance to him in the light of his (relatively limited) experience as an SO13 officer. In Miss Miller’s case, I am satisfied that her thinking on 21 September 2001 was as she says it was. I accept her evidence in relation to the contemporaneous documents. I was also impressed with her ready acceptance with regard to the Wells Fargo name that this had come to her from a later sight of underlying documents. Both officers were, to my mind fair and frank witnesses, who told me genuinely their recollections of the events of 20 to 21 September 2001.
Accordingly, I accept that each officer arrested the Claimants in the light of the information which they say they had. They made the arrests in the early hours of 21 September 2001 at the addresses which I have mentioned. It appears that each Claimant submitted without struggle to the requirements of the arresting officer. The question is was the information that I have found the officers to have had sufficient to enable each to have reasonable grounds for suspecting that the relevant Claimant was a “terrorist” within the meaning of Section 41(1) of the Terrorism Act 2000. I turn to the law.
(C) Law
The starting point now for an assessment of whether reasonable grounds for suspicion (justifying arrest) have been established is the decision of the House of Lords in O’Hara v Chief Constable of the RUC [1997] AC 286. The decision on the appeal is shortly stated in the speech of Lord Steyn at pp. 289F – 290C:
“… At trial the respondent, the Chief Constable, sought to justify the arrest under section 12(1) of the Prevention of Terrorism (Temporary Provisions) Act 1984. So far as it is material section 12(1) provides:
“a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be … (b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of the Act applies; …”
The constable made the arrest in connection with a murder which was undoubtedly an act of terrorism within the meaning of section 12(1) of the Act of 1984. It was common ground that subjectively the constable had the necessary suspicion. The question was whether the constable objectively had reasonable grounds for suspecting that the plaintiff was concerned in the murder. The constable said in evidence that his reasonable grounds for suspecting the plaintiff were based on a briefing by a superior officer. He was told that the plaintiff had been involved in the murder. The constable said that the superior officer ordered him to arrest the plaintiff. He did so. Counsel for the plaintiff took the tactical decision not to cross-examine the constable about the details of the briefing. The trial judge described the evidence as scanty. But he inferred that the briefing afforded reasonable grounds for the necessary suspicion. In other words the judge inferred that some further details must have been given in the briefing. The legal burden was on the Chief Constable to prove the existence of reasonable grounds for suspicion. Nevertheless I am persuaded that the judge was entitled on the sparse materials before him to infer the existence of reasonable grounds for suspicion. On this basis the Court of Appeal was entitled to dismiss the appeal. That means that the appeal before your Lordships’ House must also fail on narrow and purely factual grounds.”
At p. 293E-H is an important passage emphasising that the final discretion to arrest or not is that of the arresting officer; “following orders” is not a defence:
“Given the independent responsibility and accountability of a constable under a provision such as section 12(1) of the Act of 1984 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 section 12(1). 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 any difference. It would be contrary to the principle underlying section 12(1) which makes a constable individually responsible for the arrest and accountable in law. In Reg. v. Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board [1982] Q.B. 485, 474 Lawton L.J. touched on this point. He observed:
“[chief constables] cannot give an officer under command an order to do acts which can only lawfully be done if the officer himself with reasonable cause suspects that a breach of the peace has occurred or is imminently likely to occur or an arrestable offence has been committed.” ”
I would also refer to the passages in the speech of Lord Hope of Craighead at pp. 298A-E and 301H-302A:
“My Lords, the test which section 12(1) of the Act of 1984 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.
This means that the point does not depend on whether the arresting officer himself thought at that time that they were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It is the arresting officer’s own account of the information which he had which matters, not what was observed by or known to anyone else. The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in mind alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any facts on which he based his suspicion were in fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and its context, seen in the light of the whole surrounding circumstances. …” (p. 298 A-E)
“… Many other examples may be cited of cases where the action of the constable who exercises a statutory power of arrest or of search is a member of a team of police officers, or where his action is the culmination of various steps taken by other police officers, perhaps over a long period and perhaps also involving officers from other police forces. For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised.” (pp. 301H-302A) (Italics added)
Mr. Beloff was at pains to point out that the threshold of reasonable suspicion is relatively low. He pointed to the evidence described as “scanty” which justified the arrest in O’Hara’s case: at p. 290A. He took me to the judgment of the Privy Council, delivered by Lord Devlin, in Hussien v Chong Fook Kam [1970] AC 942 at pp. 948B-C and 948G-949A where this was said:
“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove.” Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage. It is indeed desirable as general rule that an arrest should not be made until the case is complete. But if arrest before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion. …” (p. 948 B-C)
“The test of reasonable suspicion prescribed by the Code is one that has existed in the common law for many years. The law thus stated in Bullen and Leake, 3rd ed. (1868), p. 795, the “golden” edition of (1868):
“A constable is justified in arresting a person without warrant, upon a reasonable suspicion of a felony having been committed and of the person being guilty of it.”
Their Lordships have not found any English authority in which reasonable suspicion has been equated with prima facie proof. In Dumbell v. Roberts [1944] 1 All E.R. 326, Scott L.J. said, at p. 329:
“The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called upon before acting to have anything like a prima facie case for conviction; …” (p. 948G-949A)
Mr. Beloff also took me to three textbooks Clayton & Tomlinson on Civil Actions against the Police 3rd Edn paragraph 5-071, referring to the “limited burden of proving reasonable cause”, to Stone on the Law of Entry, Search and Seizure 4th Edn. Paragraph 1.46 and to Feldman on the Law Relating to Entry, Search and Seizure (1986). In Stone it is said that, “The amount of information required before such a suspicion may be said to be based on reasonable grounds is obviously at a fairly low level”. Mr. Owen accepted these short summaries of the nature of the test. He did, however, take issue with the passage cited from the Feldman work where the following is said:
“If a constable has made a decision in conditions of urgency and perhaps confusion it would be unfair to judge the reasonableness of his suspicion by the slow, careful, analytical standards of a trial court months or years later”.
Mr. Owen submitted that this passage was not supported by any authority and was contrary to principle.
On this last point arising out of the passage in Professor Feldman’s work, I would comment as follows. Clearly, the suspicion has to be shown to be reasonable when objectively judged by the standards of the reasonable person. That assessment must be made in the light of all the circumstances facing the officer. Sometimes judgments have to be made swiftly in operational circumstances of some difficulty and that too is a matter that a court can take into account in deciding whether an arresting officer’s judgment was based on reasonable grounds on the facts known to him or her in the scenario in which the arrest was made. Even the application of objectively reasonable standards allows for an assessment of the circumstances in which the information comes to the arresting officer. If that is what is meant in the passage in issue I have no difficulty with it.
The significant area of difference between counsel, on the law, was in relation to the extent to which an arrest might be justified by an officer inferring that his superiors had information (beyond that communicated to him) which might then justify the arrest even if the information actually in the arresting officer’s mind was not in itself sufficient. The point is illustrated by two points noted in the written submissions of Mr. Beloff and Mr. Beggs as to the state of mind of Mr. Bredo when he made the arrest in issue here. The points were as follows:
“…f. His (Bredo’s) own views were fortified by the fact that he knew that his superior officers, including MacBrayne (“exceptionally good senior officer…”) regarded Mohammed as a reasonable suspect;
g. He inferred (and was entitled to) that his senior officers might well know more than he did (“it would not surprise me if MacBrayne was privy to further intelligence”…)”
Mr. Owen was prepared to accept point f as having a bearing upon the reasonableness of Mr. Bredo’s suspicion, but not point g. Mr. Owen would not accept that, if the information actually known to the officer was insufficient to justify the arrest, the arresting officer was entitled to assume that the senior officer must have had other information that was sufficient for that purpose and thereby justify his own decision to make the arrest.
In this area one detects, I think, a nuance of difference in approach in the speeches of Lord Steyn and Lord Hope in O’Hara. That nuance arises out of their lordships’ possibly differing views as to the relevance, in the construction of a provision such as Section 41 of the Terrorism Act 2000, of a passage in the speech of Lord Roskill in McKee v Chief Constable for N. Ireland [1987] 1 WLR 1358. In that case, their lordships’ House was concerned with section 11(1) of the Northern Ireland (Emergency Provisions) Act 1978 which provided that,
“Any constable may arrest without warrant any person whom he suspects of being a terrorist”.
Note, the section did not require “reasonable suspicion”, c.f. the words of Section 12(1) of the 1984 Act, the provision in issue in O’Hara and the words of the 2000 Act with which we are now concerned.
Applying section 11 of the 1978 Act, Lord Roskill , in McKee’s case, said,
“On the true construction of section 11(1) of the statute, what matters is the state of mind of the arresting officer and no one else. That state of mind can legitimately be derived from the instruction given to the arresting officer by his superior officer. The arresting officer is not bound and indeed may well not be entitled to question those instructions or to ask upon what information they are founded.”
Of this passage from Lord Roskill’s speech, Lord Steyn in O’Hara said,
“The statutory provision under consideration in the McKee case did not require that an arresting officer must have reasonable grounds for suspicion. Moreover, the legislation was in much wider terms inasmuch as it authorised arrest for the purpose of internment. That statute was repealed in 1987 and your Lordships are concerned with a quite different statutory provision. In these circumstances Lord Roskill’s observations throw no light on the proper construction of section 12(1) of the Act of 1984 which in terms provide that the power to arrest under it only arises where a constable has reasonable grounds for the necessary suspicion. Contrary to counsel’s submission I would hold that it is misuse of precedent to transpose Lord Roskill’s observations made in the context of the subjective requirement of a genuine belief to the objective requirement of the existence of reasonable grounds. The McKee case is irrelevant on the point of principle under consideration in this case. …”
In contrast, Lord Hope said at pp. 298H-299B,
“Section 11 of that Act was, of course, subsequently repealed and replaced by section 12 of the Act of 1984, which requires that the suspicion be based on reasonable grounds. Nevertheless, I believe that despite the difference in wording, Lord Roskill’s words, at pp. 1361-1362, when he emphasised that what matters is what was in the mind of the arresting officer, remain relevant:
“On the true construction of section 11(1) of the statute, what matters is the state of mind of the arresting officer and of no one else. That state of mind can legitimately be derived from the instruction given to the arresting officer by his superior officer. The arresting officer is not bound and indeed may well not be entitled to question those instructions or to ask upon what information they are founded.” ”
Mr. Beloff relied particularly in this context on the passage in Lord Hope’s speech (quoted above) at pp. 301H to 302B where his lordship deals with the issue of an arresting officer acting as part of a team and the need for such an officer to be able to rely on other officers in taking decisions whether to arrest or not. However, in each case Lord Hope and Lord Steyn came back to the information actually in the possession of the arresting officer as being the material upon which the lawfulness of an arrest must be judged: see the words which I have italicised in the passage from Lord Hope’s speech quoted in paragraph 26 above. Even in the passage at p. 302 of the report, Lord Hope comes back to this, (which I repeat)
“…What it [the statutory power] does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised”.
A little later Lord Hope said,
“…So it is the facts known by or the information given to the officer who effects the arrest to which the mind of the independent observer must be applied. It is this objective test, applying the criterion of what may be regarded as reasonable, which provides the safeguard against arbitrary arrest and detention…” (Emphasis added)
So if information given to an arresting officer at a briefing by a superior is insufficient to supply to the arresting reasonable grounds for suspicion of the arrested person, it will, in my judgment, avail the arresting officer nothing to say, “Well, I thought that my superior probably did have other information justifying the arrest but he did not tell me what it was”. To this extent, I accept Mr. Owen’s submission that point g. in Mr. Beloff’s written argument would not adequately supply information justifying an arrest to Mr. Bredo if the other information given to him in the briefings was not sufficient for that purpose. If it were otherwise, I do not see that the safeguard against arbitrary arrest and detention of which Lord Hope spoke would exist. It would be only a short step from justifying an arrest on the basis simply of “obeying orders”, which was so emphatically rejected in O’Hara and other cases.
Before leaving the law on the question of reasonable suspicion, I should mention one case to which Mr. Owen referred me. This was Reynolds v the Commissioner [1982] EWCA Civ 7. The case concerned a police investigation into fraudulent insurance claims arising out of house fires which were suspected to have been caused by arson. The plaintiff, Mrs. Reynolds was the domestic partner of a primary suspect. She had been seen at one of the sets of premises under investigation, the police had been informed that she was also the prime suspect’s secretary and that he was living with her and that there were some similarities with the modus operandi and family arrangements of a Mr. Allan who was also a suspect and who had used his domestic partner as a “front” for the purchase of some of the properties. Mr. Owen cited this case to me for the proposition that the relationship of man and wife could not be taken as a sufficient link to a suspect to warrant an arrest of the suspect’s spouse - a proposition that I did not take to be controversial.
I turn to Mr. Beloff’s alternative defence of necessity. The argument was founded upon three cases: Austin v the Commissioner [2007] EWCA Civ 989, Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242 and R v Bournewood Community and Mental Health NHS Trust, ex p. L [1999] AC 458.
All three cases arose out of facts very different from the present case, but Mr. Beloff fixed upon a short passage in the judgment of Sir Anthony Clarke MR in the Austin case, where the Master of the Rolls said this at paragraph 49 of the judgments:
“We accept that necessity can provide a defence to the tort of false imprisonment: see e.g. R v Bournewood Mental Health Trust ex parte L…”
The Court found, however, that it was not necessary to decide the case before it on that ground.
Mr. Owen submitted that, notwithstanding this dictum of high authority, no such defence existed to a claim such as the present. He argued that it was extraordinary that if the police had no reasonable grounds for arresting a person for an offence, they could have resort to some undefined defence of supposed necessity. He submitted that Bournewood was dealing with the particular question of detention of the mentally ill, either for their own protection or the protection of others. He pointed out that Rigby involved a claim in negligence arising out of damage by fire caused to property when the police were endeavouring to subdue a dangerous psychopath who had intruded onto the premises of one of the plaintiffs. It was not a case of allegedly wrongful arrest. Austin was a case concerning the police’s power to act to prevent an imminent breach of the peace. Mr. Owen asked rhetorically to what other arrests on suspicion of serious offences did this defence apply? Did it apply to murder generally, to rape etc.?
Mr. Beloff’s points on the facts were based upon the need of the police to react for the protection of the public in the light of a unique and unprecedented act of terror and the possibility of further similar offences. Hence, the defence of “necessity” arose.
In my judgment, I do not need to embark upon the interesting question of the availability of a defence of necessity in a case such as this in general terms. There is a shorter answer to Mr. Beloff’s point. In English law no arrest is lawful unless the person arrested is informed of the reason for his detention at the time of the arrest or as soon as is practicable thereafter: see Clerk & Lindsell on Torts 18th Edn. Paragraph 15-79. As Viscount Simon said in Christie v Leachinsky [1947] AC 573, 587-588:
“… in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints upon him if he knows in substance why it is claimed that this restraint is imposed”.
The ground given for the arrest must also be the true ground: see Clerk & Lindsell Op. et Loc. Cit.
In the present case, neither of these Claimants was informed that he or she was being arrested on any other ground than suspicion of being concerned in the commission, preparation or instigation of acts of terrorism. Neither of them was told that he or she was being arrested on some general ground of necessity. In this case, therefore, no defence of “necessity” (if such a defence is known to the law) is available to the Commissioner.
(D) Application of the Law to the Facts
I have found that, at the time of the arrest effected by each, the arresting officers had in mind the factors that they identified in their witness statements. I have spelt out those factors in detail above. Did those factors in each case, looking at the case of each Claimant separately, give the officer reasonable grounds for suspecting that the relevant Claimant was a “terrorist” within the meaning of the Act? I shall look at the arrests of each Claimant in turn, beginning with Mrs. Sonia.
In arresting Mrs. Sonia, Miss Miller had in mind the factors set out in paragraph 16 of her witness statement, in the background which she relates in the other parts of that document. In my judgment, those factors amply justified the arrest. (I leave out of account, for reasons already identified, what Miss Miller says she thought of information that might be available to her superiors but which was not communicated to her.)
The threshold of suspicion is low. Mrs. Sonia was not merely the wife of a prime suspect for the offences. She had been with him in a foreign country at a time when he might well have been thought to have been engaged, at the same time and at the same location, in the very training which was being undergone by one of the known perpetrators of the atrocities. It must have been reasonable to suspect that, if Lotfi was possibly involved, she too might be complicit in the offences. She was far more close to the centre of the events under investigation than simply a relative or domestic partner, such as the “common law wife” who was the plaintiff in the Reynolds case. I compare the factors relied upon by Miss Miller to the “scanty” evidence based on inference that justified the arrest in O’Hara’s case.
In my judgment, the case of Mr. Mohamed is quite different. He was simply thought to be the close brother of a major suspect and the two lived geographically fairly close to each other; each had access to the home of the other in this country. Mr. Bredo knew that his superiors thought that he was a suspect, but he knew no more about what that view was based upon than the material which I have mentioned. Mr. Bredo says that he was influenced by an opinion that family links played a part in terrorist activity, but he was unable to give any reasons of substance for this opinion. On analysis, Mr. Mohamed was arrested because Mr. Bredo knew he was the brother of a suspect and that their relationship was close. In my judgment, those grounds were not sufficient to justify the arrest. (Again, for the reasons given above, I do not accept that Mr. Bredo was entitled to act on surmise as to additional information that senior officers might have but which was not passed on to him.) I have not the slightest doubt, however, that Mr. Bredo acted in entire good faith and in a professional manner in compliance with his instructions, but that does not provide the Commissioner with a defence to Mr. Mohamed’s claim.
As I have already indicated, I have not felt it necessary to invoke Section 18(7) and (8) of RIPA in order to reach a just decision in this case. The issue does not arise in the case of Mrs. Sonia. In the case of Mr. Mohamed, the outcome depends upon what was in the mind of Mr. Bredo, not upon any information, not communicated to him, that might, on one hypothesis, derive from a source excluded from consideration under Section 17 of RIPA.
(E) Conclusion
In the result, therefore, Mrs. Sonia’s claim is dismissed, but in Mr. Mohamed’s case there will be judgment in his favour for damages to be assessed.