NTC & Ors v The Commissioner of Police for the Metropolis

The claims in this case were the subject of a trial by jury. They arose out of events on 19 July 2009 when armed police attended a block of flats in Townmead Road, Fulham, where the First to Third Claimants were living, at a time when the Fourth Claimant was visiting them. The police were looking for a white man who had been reported by a member of the public (“the informant”) to have been on a balcony to one of the flats, holding a firearm. The man had been positively identified by the informant to plain clothes police officers who had gone to the scene in an unmarked car. The suspect was pointed out by her to those officers as he stood on the balcony of the first-floor flat on the right of the communal stairwell (“the suspect flat.”) The Claimants’ flat, and its balcony, were also on the first floor but on the opposite side of the stairwell. Thus the Claimants’ flat was the first floor flat on the left of the stairwell.

The plain clothes officers confirmed the genuine nature of the report to the uniformed duty inspector for the area, Inspector Lisa Renwick, who called for armed officers to attend, and briefed them at a rendezvous point (“the RVP”). Her unchallenged and uncontradicted evidence was that she passed on the correct and accurate information in respect of the location of the suspect flat. The armed officers approached the block, some of them operating as a “containment” unit, to cover the exterior of the premises, offering cover and protection to their colleagues and any members of the public who required it. Another group of officers formed themselves into what they termed a “stick” with the purpose of going inside the block of flats to identify the precise location of the suspect flat from the inside, to obtain entry and to arrest the suspect.

The Claimants said in evidence that some of the containment officers, PCs King and Burden pointed their firearms towards the balcony of their flat, and towards them, while they were on the balcony and shouted demands to the First and Fourth Claimant to keep their hands above their heads. They also said that the First and Fourth Claimants were instructed by the containment officers to hold up the children (the Second Claimant aged 8, and the Third Claimant aged 4) so that they were in view of, and they believed in the line of fire of, the armed officers. That amounted to the conduct alleged to be an assault covered by the first two questions to the jury.

Thereafter the armed officers in the “stick” entered the Claimants’ flat, and the Claimants alleged that they were then required by the armed police to remain in one room in the flat, gathered on the sofa, while the flat was searched. During this time they said that one police officer remained with them with his firearm pointing at them. These allegations gave rise to the other questions put to the jury which covered trespass, false imprisonment and a further assault by threat of force.

While the armed police were in the Claimants’ flat a radio message was received from the plain clothes officers outside the flats that the armed officers in the “stick”, had entered the wrong flat. Those officers then went to the suspect flat and obtained entry, arrested the suspect and recovered the weapon.

The defence case was that the officers were responding to an extremely serious and credible report of a firearms incident. Their priority was to locate and contain the firearm. As the officers were preparing to deal with the situation up-dated radio reports from the plain clothes officers, or from other officers at the scene, made reference to “a black female” on the balcony which the containment officers interpreted as being the balcony of the suspect flat. The first Claimant was seen on the balcony of her own flat and, as she was the only person who fitted that description, the containment officers erroneously concluded that she was at the same flat as the suspect. Other features of the Claimant’s flat (a brushwood screen behind the railings of the balcony, for example) fitted the description of the suspect flat. It was accepted that the officers’ firearms were pointed towards the Claimants and that they could well have felt threatened by them. In effect the basic elements of assault in law were made out.

The essential points in the defence case were:

The case was considered by the jury, who after several hours’ deliberation answered the questions put to them as follows:

“First assault – balcony

It is agreed:

That PC King and PC Burden pointed their guns in the direction of the Claimants while they were on the balcony

That the adult Claimants (Claimants 1 & 4) held up the children (Claimants 2 & 3) on the direction of PC King

Question 1: has the Defendant satisfied you on the balance of probabilities that PC King used such force as was reasonable in the circumstances in order to assist in the arrest of a suspected offender, as against

Claimant 1 YES

Claimant 2 YES

Claimant 3 YES

Claimant 4 YES

In respect of Claimants 1 and 4, where use of force was pointing guns in their direction. In respect of Claimant 2 & 3, where use of force was pointing guns following direction being given for them to be held up by Claimants 1 and 4.

Question 2: Has the Defendant satisfied you on the balance of probabilities that PC Burden used such force as was reasonable in the circumstances in order to assist in the arrest of a suspected offender, as against:

Claimant 1 YES

Claimant 2 YES

Claimant 3 YES

Claimant 4 YES

Trespass – entry into flat

Question 3: Has the Defendant satisfied you on the balance of probabilities that the reason the officers entered the Claimants’ flat was to arrest a suspected offender?

YES

And

Has the Defendant satisfied you on the balance of probabilities that there were reasonable grounds to believe that the suspect was in the flat?

YES

False imprisonment – inside flat

Question 4: Have the Claimants satisfied you on the balance of probabilities that they were ordered by any officer to remain seated on the sofa in the living room such that their freedom of movement was restricted?

NO

Assault - inside flat

Question 5: Have the Claimants satisfied you on the balance of probabilities that a gun was pointed in their direction while they were seated on the sofa?

NO.”

Despite that verdict, counsel for the Claimants asked for the case to proceed further, upon the basis that in the light of certain undisputed facts, liability on the part of the defendant, could nevertheless be established upon a “joint tortfeasor” basis.

The facts the Claimants rely upon, and which the court is invited to find as facts are as follows.

It is to be noted that the jury were not asked to answer any question dealing with whether or not the armed officers were provided with the accurate identification of the suspect’s flat at the RVP (in particular that the suspect’s flat was to the right of the stairwell). The evidence from Inspector Renwick was not contradicted as to this, and was confirmed by PC Waddingham and Pc Daobry. Had the jury been asked to deal with this question, it is not unreasonable to conclude that they would have found on the balance of probability that Inspector Renwick had passed on correct information to the armed officers.

Counsel for the Claimant submits, however, that that is not a finding of fact which is required in order for the Claimants to put forward an argument on their behalf based upon the armed officers who were directly involved being joint tortfeasors with other officers who provided the armed officers with incorrect information, leading to the making of a mistake of fact by them, whether that was a reasonable or an unreasonable mistake.

It is not known what the jury’s findings of fact were in respect of the information which was actually given to PC King and PC Burden, nor as to what those officers believed. It is submitted that this is not a matter which should cause any concern: the Claimants simply rely on the fact that the wrong flat was identified by those officers. PC King was clear he thought the Claimants’ flat was the suspect’s flat. That he was wrong is not disputed. The case for the Claimants is that the police in general were in possession of a wealth of information from which the correct flat could be indentified, and no mistake should have been made at all.

So far as the entry to the flat is concerned, counsel submits that the same legal arguments on joint tortfeasor and unreasonable (or reasonable) mistake may be based on the fact that before the deployment of the armed officers the correct flat had been identified, that plain clothes officers remained outside the flats with it continuously in their view and with the ability to communicate with the armed officers. The Claimants submit that it was the Defendant’s officers who were responsible for any confusion created and for the mistake being made.

It is submitted that the Claimants can succeed in their claim for assault on the balcony or trespass on the grounds that the Chief Constable is responsible for the actions of all the officers and the officers should be seen as part of a common design. Further that the mistake made cannot be justified as reasonable where it was the Defendant’s own officers who were responsible for the mistake. For this proposition the Claimants rely in particular on the opinion of Lord Scott at para 20 in the case of Ashley v Chief Constable of Sussex Police [2008] 1 AC 962.

The facts in Ashley were that James Ashley was shot dead by PC Christopher Sherwood of the Sussex Police Special Operations Unit ("SOU") on 15 January 1998 during an armed raid by the SOU on Mr Ashley's home in Sussex. The armed raid had been authorised by police authorities and a search warrant had been obtained. The raid formed part of police investigations into drug trafficking and into the stabbing of a man by an alleged associate of Mr Ashley. The final briefing of those, including PC Sherwood, who were to take part in the raid was given early on the morning of 15 January. The briefing included details of Mr Ashley and his associates and their alleged activities. At about 4.20am police officers, one of whom was PC Sherwood, made a forcible entry into Flat 6. On entry he and another officer headed towards the bedroom. Mr Ashley and his girlfriend had been asleep in the bedroom but she, having been woken by the noise of the police entry into the flat, had woken him and he was out of bed by the time the police entered the bedroom. He was naked and no light was on. PC Sherwood entered the bedroom with his handgun in the "aim" position and his finger on the trigger. Within seconds of his entry into the bedroom he shot Mr Ashley with a single bullet to the side of the neck. PC Sherwood was subsequently charged with murder, pleaded self-defence, and was acquitted.

The claimants in the case of Ashley were the father and son of the deceased man. They brought actions against the Chief Constable of Sussex as dependants and as representatives of the estate of the deceased on the grounds, inter alia, of assault and battery, and of negligence in the planning and execution of the raid. The chief constable admitted negligence, but denied liability for assault on the basis that the officer had acted in self-defence and applied for that aspect of the claim to be struck out. The judge at first instance granted that application. The Court of Appeal reversed that decision and ordered that the claim should proceed. The chief constable appealed. The main issue before the House of Lords was whether self-defence to a civil claim for assault, where the assailant acted in the mistaken belief that he was under attack, required such a belief to be reasonably held: it was held that the law did require such a belief to be reasonably held. Whether the law further required the assailant to prove that he was actually under attack, or the threat thereof, was left open.

In this case, counsel for the Claimant submits, as I understand it, that if, as the jury has found, the officers reasonably used force against them on the information they had, something had obviously gone wrong. The unchallenged and uncontradicted evidence from Inspector Renwick and PC Sowerby was that the suspect’s flat was to the right of the stairwell. Miss Gerry therefore submits that for PC King and PC Burden to have believed otherwise demonstrates that a serious error in terms of a breakdown in communication, or some other serious error had occurred between all the officers for whom the Defendant is vicariously liable. The passage in the opinion of Lord Scott which founds Miss Gerry’s joint-tortfeasor argument is as follows.

“20 I would, therefore, dismiss the chief constable's appeal against the Court of Appeal's adoption of solution 2 [a mistaken belief must be reasonably held]. It has not been contended on behalf of the Ashleys that solution 3 [whether the assailant is required to prove that he was actually under attack] might be the correct solution in a civil case but, speaking for myself, I think that that solution would have a good deal to be said for it, as appears to have been the view also of Sir Anthony Clarke MR [2007] 1 WLR 398, paragraphs 63–78. I would start with the principle that every person is prima facie entitled not to be the object of physical harm intentionally inflicted by another. If consent to the infliction of the injury has not been given and cannot be implied why should it be a defence in a tort claim for the assailant to say that although his belief that his victim had consented was a mistaken one none the less it had been a reasonable one for him to make? …. If A assaults B in the mistaken belief that it is necessary to do so in order to protect himself from an imminent attack by B, or in the mistaken belief that B has consented to what is done, it seems to me necessary to enquire about the source of the mistake. If the mistake were attributable in some degree to something said or done by B or to anything for which B was responsible, then it seems to me that the rules relating to contributory fault can come into play and provide a just result. If the mistake were attributable in some degree to something said to A by a third party, particularly if the third party owed a duty to take care that information he gave was accurate, the rules relating to contributions by joint or concurrent tortfeasors might come into play. But I am not persuaded that a mistaken belief in the existence of non-existent facts that if true might have justified the assault complained of should be capable, even if reasonably held, of constituting a complete defence to the tort of assault. However, and in my view, unfortunately, solution 3 has not been contended for on this appeal, its pros and cons have not been the subject of argument, and your Lordships cannot, therefore, conclude that it is the correct solution. But I would, for my part, regard the point as remaining open.”

It is self-evident that those dicta are obiter, but Miss Gerry understandably relies upon them as powerful support for her approach. For her part, Miss Mortimer points out that whilst Lord Scott was obviously attracted to the idea that ‘solution 3’ might be the correct test in a civil case, not all the other members of the House were inclined to agree. At paragraph 89 Lord Neuberger said that he thought the balance of authorities favoured the conclusion that the defendant did not have to go so far as solution 3. At paragraph 76, Lord Carswell said that he would not support Lord Scott in regarding option 3 as possibly containing the correct principle.

For the way in which she puts the vicarious liability of the Commissioner, Miss Gerry relies in particular on some passages in the opinion of Lord Neuberger at paras 91- 94:

“91 … if a reasonable but mistaken belief will do, other questions may need to be considered. One such question is whether, when seeking to justify the reasonableness of his belief, a defendant can rely on factors which were not the claimant's responsibility. There is obviously a strong argument for saying that a defendant can rely on such factors. Otherwise, one would be getting close to holding that the belief must be correct. Further, it could lead to difficulties if one had to decide whether the claimant was responsible for the defendant's belief, especially if only some of the factors which influenced the defendant could be taken into account. However, it can also be said to be unfair on the claimant if matters for which he had no responsibility can serve to justify the reasonableness of the defendant's mistaken belief. The answer may ultimately depend on whether one judges the issue of reasonableness from the claimant's point of view or from that of the defendant.

92 Subject to that point, I believe that it would be inappropriate for your Lordships in this case to cut down the factors which can be taken into account when deciding that issue. When considering the reasonableness of the belief of a defendant in a particular case, it must be for the trial judge to take into account those factors which, provided they are permissible in principle, appear to him relevant, and to give each of them such weight as he thinks appropriate.

93 Arden LJ said below, at para 196, that it might be inappropriate to take into account “any mistake that was not one caused by Mr Ashley but by an earlier inaccurate briefing”, apparently on the ground that it “did not form part of the immediate events in which Police Constable Sherwood perceived a real and imminent danger”. She may well be right that the inaccuracy of any briefing should be irrelevant because, as discussed, it was (presumably) not caused by Mr Ashley. Subject to that, however, at least if the claim were against PC Sherwood, it seems to me that he would, in principle, be entitled to ask the court to take into account what he had been told at the briefing, when considering whether his belief at the time he shot Mr Ashley was reasonable, even if what he was told was negligently relayed to him.”

94 However, given that the defendant in these proceedings is the chief constable, I question whether it would be open to him to rely on what his police officers told PC Sherwood about Mr Ashley as justifying PC Sherwood's belief, at least to the extent that they were negligently inaccurate in their briefing. There must be a strong case for saying that it should not be open to the chief constable to rely on his own (if vicarious) negligently inaccurate imparted information to PC Sherwood to justify the reasonableness of a shooting by PC Sherwood for which he was vicariously liable.”

It is submitted that Lord Neuberger was saying first, that “the source” of the mistake is relevant to a finding that a mistake was reasonable, and, secondly, that it was “open to question” whether the chief constable might be permitted to rely on what his own officers had told PC Sherwood as any justification for the mistaken belief.

The Claimants therefore submit by analogy with that case, even though this is not a case of self-defence, that here the basic elements of the torts of assault and trespass are in effect admitted. The actions of all those involved in the operation to arrest the male suspect were in pursuit of a common design, with the consequence that even though PC King and PC Burden and the other armed officers had been found by the jury to have acted reasonably, it is open to the court to conclude that the Claimants’ claims should succeed on the basis that the Defendant cannot justify the mistake as to the identification of the Claimant’s flat as a reasonable one, as that mistake was the responsibility of his own officers.

Counsel for the Claimants on this basis submits that the Defendant’s defence to the assault claim must fail as the mistake was not a reasonable one .A separate argument is also put forward on the basis that even a reasonable mistake would not provide a defence, but she accepts that this is a point which cannot really be taken here, as it was rejected by the Court of Appeal in Ashley, and the House of Lords expressly left the matter open.

In my view, however attractively and persuasively this argument is put, the problem which Miss Gerry faces is that the foundations of it rest upon dicta from opinions in the HL which are obiter or from judgments in the Court of Appeal which are not consistent with the ratio of the House of Lords’ decision in the case of Farrell v The Secretary Of State For Defence [1980] 1 WLR 172, which Counsel for the Defendant submits provides a complete answer to these submissions. Farrell is authority binding on this court, and is a case which appears not to have been cited in argument nor referred to in the opinions of any of the members of the House in Ashley.

In Farrell three men were killed when they were shot by soldiers serving in Northern Ireland in 1971. An army officer, X, had ordered the soldiers to cover a bank having received information that a bomb attack was likely to be made on a nearby bank. The three men were seen acting suspiciously and failed to respond to a challenge to halt. None of the men was carrying a bomb. The widow of one of them sued the Ministry of Defence alleging negligence and trespass to the person. The House of Lords considered the terms of section 3 (1) of the Criminal Law Act (Northern Ireland) 1967 and held that the phrase ‘in the circumstances’ did not extend to defects in the planning of an operation leading to the making of an arrest.

Ms Mortimer puts it as follows: the HL in Farrell were specifically considering a statutory provisions which is in identical terms to section 3 (1) of the Criminal law Act 1967. In the Court of Appeal in Farrell it had been said that in section 3 (1) the words “in the circumstances” meant: “the circumstances in which an operation is conceived and planned and in which the preparatory steps are taken as well as those in which the final decisive act is performed”: see the opinion of Viscount Dilhorne at p. 177G.

This is essentially what is contended for by the Claimants in this case and, had Farrell not gone any further than the Court of Appeal, they would have a basis in law for their arguments. Farrell did go further, however, and the House of Lords expressly rejected the approach taken in the Court of Appeal. Viscount Dilhorne said this:

“Further my Lords, I am unable to agree that the phrase “in the circumstances” in section 3 (1) should be given the wide interpretation given to it in the Court of Appeal. That section is contained in a statute dealing with the criminal law. It may provide a defence for a person accused of a crime. It may also provide a defence for a person sued. In each case when such a defence is put forward the question to be determined is whether the person who is accused or sued used such force as was reasonable in the circumstances in which he was place in the prevention of crime or in bringing about the lawful arrest of an offender or suspected offender.

Section 3 (1) would provide no defence to soldier X [the army officer] in respect of a claim for negligence in the planning of the operation. It can only provide a defence for those who used force and if the force the four soldiers used was reasonable in the circumstances in which they used it, the defects, if there were any, in the planning of the operation would not deprive them of that defence and render the force used unreasonable” (178H – 179B)

Counsel therefore submits that Farrell provides a complete answer to the Claimants’ submissions in respect of joint tortfeasors.

Miss Mortimer submitted that the Claimants’ reliance on the passage at paragraph 20 of Lord Scott’s opinion in Ashley had to be read in the light of the following matters.

As to paragraph 94 of Lord Neuberger’s opinion, counsel for the Defendant makes the following points.

It is of particular significance, in my view that Farrell was neither cited nor referred to in Ashley. Nor was counsel for the Claimants able to point to any authority which directly supports her submission that liability can be established against the Defendant in the circumstances of this case on a joint-tortfeasor basis, notwithstanding the fact that the jury has delivered its verdict in respect of the individual officers, finding that their conduct is covered by the terms of section 3 of the 1967 Act.

The questions having been answered in the Defendant’s favour, the use of force by the individual officers for whose actions he is statutorily responsible was, on the jury’s verdict, reasonable in the circumstances and the defence under section 3 (1) of the Criminal Law Act succeeds, entitling the Defendant to judgment.

In the current edition of Clerk & Lindsell on Tort the editors when dealing with section 3 of the Criminal Law Act 1967 set out their understanding of its effect as follows.

“Should excessive or unreasonable force be used to effect a lawful arrest, the arrestor … may still be liable for assault and battery. The degree of force which is reasonable must be judged in light of the circumstances apparent to the arrestor; and he will not be found to have used unreasonable force because of a defect in the planning of the arrest or the crime prevention operation which with hindsight can be seen to render the amount of force used unnecessary. A defence under s 3 (1) is available only to the person actually using force to prevent a crime or effect an arrest; the crucial issue is therefore whether he and he alone acted unreasonably.”

The case of Farrell is one of the authorities cited.

Miss Gerry sought to distinguish Farrell on a number of grounds. For example, unlike the present case, Farrell concerned only the four individual soldiers who had fired their rifles. It was very “fact sensitive.” Whilst the House of Lords had criticised the wide interpretation of “circumstances” given in the Court of Appeal as including planning, there was in fact no real question of the planning of the operation in that case being relevant. Such distinctions may indeed be made, but they make no difference in my view to the very clear terms of the ratio of Farrell nor of its application to the present case.

Despite all the matters so resourcefully urged by Miss Gerry, I have reached the conclusion that Farrell does provides an inescapably negative answer to the way in which the attempt is made to establish liability against the Defendant despite the verdict of the jury.

In the circumstances there must be judgment for the Defendant.