The Commissioner of Police for the Metropolis v MR

This is an appeal against a decision made by Her Honour Judge Baucher following a trial at the Central London County Court in which she gave judgment on 3 July 2018. By that decision, the judge upheld MR’s claim for false imprisonment and assault following what was, in her judgment, an unlawful arrest carried out by police. She made an order granting damages of £2,750 to MR. Permission to appeal was rejected by the lower Court at a hearing on 14 September 2018.

The Commissioner of Police for the Metropolis appeals against the judgment in the Court below on grounds that the Judge erred in finding that the arresting officer’s belief in the need to arrest MR was not objectively reasonable. MR cross appeals, asking this court to uphold the decision of the lower court on the additional or separate basis that there were no objectively reasonable grounds for the arresting officer’s suspicion that MR had committed the offence of harassment.

Section 24 Police and Criminal Evidence Act 1984 (PACE) provides the police with statutory authority to arrest a suspect who they reasonably suspect of committing an offence, providing the arrest is necessary.

The following issues are before the court:

The Respondent, MR, was in an intermittent relationship with Ms A for approximately 15 months prior to January 2010. On 6 January 2010, Ms A contacted the police to make a complaint against MR. She was visited by a police officer, DC Farrimond, the next day and provided a statement in which she alleged she had received numerous texts and calls from MR since she had broken off their relationship, despite requests from her that he leave her alone. She also alleged that on one occasion in October 2009, after a number of calls from him, the intercom at her home had been buzzed continuously for some time.

DC Farrimond carried out enquiries regarding the name given to him by Ms A but was unable to trace anyone with his name. Ms A had however provided police with MR’s mobile number.

On 11 January 2010, MR received a telephone call from PC Omodoye based at Walworth Police Station and arrangements were made for MR to attend Walworth Police Station. According to MR he arranged to attend the station on 13 January and subsequently rearranged the appointment for a day earlier. The crime reporting information system (CRIS) indicates that MR was due to attend on11 January but no one has suggested that MR was seeking to evade the appointment.

On 12 January, at 8am, MR voluntarily attended the police station. According to MR, he waited in the foyer area. He was approached by DS Murphy at 8.30am. DS Murphy immediately arrested MR on suspicion of harassment. MR said he was shocked by the turn of events and sought to explain that he was willing to co-operate with the police. He was interviewed by another police constable. He was photographed. His fingerprints and DNA samples were taken. He was released on conditional bail, having been detained for approximately 6 hours and 50 minutes.

MR’s phone was retained by police. Ms A also surrendered her phone to police. The police reviewed the text messages between Ms A and MR. Their content was friendly. The texts were not threatening or abusive on the part of MR. They did not reveal any clear request by Ms A that MR leave her alone. The police accordingly reviewed the case and decided there had been no crime committed.

On 2 February 2010, MR was informed no further action would be taken against him.

At trial, HHJ Baucher heard oral evidence from MR and the arresting officer, DS Murphy. She found DS Murphy to be a careful and considered witness who presented as a professional and experienced detective.

The judge rejected the contention that DS Murphy would have just arrested MR because he had been told to do so by another officer. She accepted his evidence that he reviewed the entirety of the CRIS report prior to arresting MR.

She accepted his evidence that, having considered the CRIS report, he suspected MR of committing the offence of harassment. Having reminded herself that the threshold for suspicion is a low one she concluded that the officer’s suspicions were objectively reasonable on the basis that the elements of the offence of harassment were made out on the face of the CRIS. Her reasoning was as follows:

The Judge then considered whether DS Murphy had reasonable grounds for believing that it was necessary to arrest MR, pursuant to the test under section 24(4) PACE. She found that the officer’s stated contemporaneous reason for the need to arrest MR

Additionally, MR’s claim for assault was made out in relation to the taking of a mouth swab and the pressing and rolling of his thumb for fingerprint purposes.

The offence which MR was suspected of committing was the offence of harassment under section 2 of the Protection from Harassment Act 1997.

Section 2 provides that:

The requirements for a lawful arrest are set out in Section 24 Police and Criminal Evidence Act 1984:

“(2)

If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.

…

(4)

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

(5)

The reasons are—

…

(e)

to allow the prompt and effective investigation of the offence or of the conduct of the person in question;”

Section 29 PACE provides as follows in relation to voluntary attendance at a police station:

“Where for the purposes of assisting with an investigation, a person attends voluntarily at a police station or at any other place where a constable is present or accompanies a constable to a police station or any such other place without having been arrested

a)

he shall be entitled to leave at will unless he is placed under arrest

b)

he shall be informed at once that he is under arrest if a decision is taken by a constable to prevent him from leaving at will.

In Castorina v Chief Constable of Surrey (1988 160 LG Rev 241), Woolf LJ identified the relevant questions for establishing that there are reasonable grounds for an officer’s suspicion under section 24(2) PACE:

The Court of Appeal has approved an embellishment of these questions in Parker v Chief Constable of Essex Police [2018] EWCA Civ 2788, to take into account the introduction of the statutory requirement for necessity. The embellishments do not impact on the issues raised in this case.

The threshold for a police officer to suspect the commission of an offence and an offender is low:

In Hayes v Chief Constable [2012] 1 WLR 517, Hughes LJ set out the two-stage test for assessing the necessity of an arrest under section 24(4) PACE. The arresting officer must: 1) honestly believe that arrest is necessary for one or more of the identified section 24(5) reasons and 2) his decision must be one which, objectively reviewed afterwards, according to the information known to him at the time is held to be made on reasonable grounds.

On behalf of the Police Commissioner, Ms Ventham pointed to the low threshold in the caselaw to justify an officer’s suspicion as to the commission of an offence by a suspect. The content of the CRIS report justified DS Murphy’s suspicions in this regard. The Protection from Harassment Act includes reference to alarm or distress

The Judge had, however, erred by stepping directly into the shoes of the arresting officer and effectively substituting her own view for his as to the necessity of the arrest. The judgment was patchy, flawed and inconsistent. The Judge was inconsistent in concluding that the officer was an experienced professional but then concluding his views were not objectively justified. She gave too much weight to the relatively low-level nature of the offence which MR was suspected of committing. She failed to recognise the interconnected nature of the officer’s reasons. The need to arrest was justified in a case such as this where the suspect had been elusive. The

On behalf of MR, Mr Cragg submitted that it was hard to see from the CRIS report how DS Murphy could reasonably have suspected MR of harassment given the recorded view of PS Crockett doubting that a crime had been committed. The Judge had failed to provide a proper assessment of the reasonable grounds for suspicion and failed to explain how the elements of the offence of harassment had been made out in the CRIS report. Mr Cragg relied on Alford v Chief Constable of Cambridgeshire [2009] EWCA Civ 100, to submit that this Court should conduct its own review of the CRIS report and come to its own conclusions on whether the officer’s suspicion could be said to be objectively justified in light of the elements of the offence of harassment.

As to the necessity of the arrest, the Judge had correctly identified the relevant legal principles and applied them to the specific facts before her. The Judge did not give undue weight to the low-level nature of the offence in question, which was only part of her reasoning. She recognised the interconnected nature of the officer’s reasons but found they were not convincing. The Judge’s reference to MR’s passport was simply a general reference to the ways in which MR’s identity could be established without arresting him. Ms Ventham’s submissions amounted in large part to no more than expressing disagreement with the Judge’s conclusions.

It is an inherent, but regrettable, risk of the police diligently performing their duties that sometimes innocent members of the public are arrested. However, as long as the police act lawfully, those who suffer from this risk have to bear the cost in the interest of the rest of society’s need to be protected from crime. Where an arrest has taken place, it is for the person who makes the arrest to establish that it is lawful (Castorina v Chief Constable of Surrey (1988) 160 LR Rev 241 Woolf LJ).

Section 24 Police and Criminal Evidence Act (PACE) provides the police with the necessary statutory authority to arrest a suspect who they reasonably suspect of committing an offence providing the arrest is necessary for, in this case, the prompt and effective investigation of the offence.

A decision on the existence of reasonable grounds for arrest, for suspecting an offender or as to the need for arrest, is treated as a question of law rather than of fact, although it will involve an evaluation of the facts and, in many cases, a weighing of different factors. The question is one on which an appellate court has to reach a conclusion of its own, rather than limiting itself to deciding, for example, whether the trial judge's conclusion was plainly wrong. If, however, the trial judge has approached the task correctly, it will generally be appropriate to place weight on their assessment, given their proximity to the evidence and their better overall “feel” for the case. An appellate court is likely to be slow in practice to interfere with the trial judge's conclusion: Alford v Chief Constable of Cambridgeshire Police [2009] EWCA Civ 100 at [33]. Accordingly, and at Counsels’ request I approach my judgment by considering the judgment below before forming my own view on the matters in question.

The test for establishing that there are reasonable grounds for suspicion is well established. The Judge below had first to satisfy herself that DS Murphy genuinely thought that MR might be guilty of an offence of harassment when he arrested him. The answer to this question depended entirely on her findings of fact as to the officer’s state of mind and there is no challenge to her finding in that respect. The challenge is to her view that DS Murphy had reasonable cause for his suspicion. Mr Cragg contended that DS Murphy’s suspicion was not justified given the CRIS records PS Crockett as doubting that an offence had been committed. However, the Judge made clear that she considered DS Murphy’s counter view was reasonable, namely that Ms A had gone to the police as a last resort and her actions could constitute evidence of alarm or distress (see paragraph 38 of her judgment). As the Judge recognised, the threshold for suspicion is low. I can identify no error in her approach.

With a view to reaching my own conclusions, I reviewed the CRIS report prior to and up to 12 January 2010, which is when MR was arrested. At page 101, an entry from DS Crocket on 8/1/2010, sets out his assessment that the repeated texting to the complainant constituted a ‘clear course of conduct’, which is a component of the offence of harassment. However, DS Crocket concluded that there was no harassment because there had been no abuse or threats and MR was keen to carry on the relationship. Nonetheless, like the Judge below, I can see the force in DS Murphy’s assessment that contacting the police is likely to indicate some degree of alarm and distress even if the complainant does not describe herself as alarmed or distressed. Accordingly, I have reached my own conclusion that DS Murphy’s suspicions were objectively reasonable as at 12 January 2010.

There was some discussion before me as to the role played by the public law Wednesbury test in the Court’s objective assessment of the necessity of any arrest. Ms Ventham relied initially on an extract from Hughes LJ’s judgment in Hayes (at paragraph 36) to submit that the reviewing Court should only interfere if satisfied that no reasonable officer could have considered the arrest necessary. This, it seemed to me, would set a high threshold for the Court’s intervention and could be said to shift the burden of justification away from the police onto the person arrested. As Ms Venthan subsequently recognised, Lord Thomas LCJ considered the role of the Wednesbury test in R (B) v Chief Constable of NI [2015] EWHC 3691 (Admin).

“22.

The PSNI went further in submitting that the true question for the court was not the two-stage test identified above, but rather a traditional “reasonableness” review by reference to the principles laid down in Associated Provincial Picture Houses Ltd v Wednesbury Corporation[1948] 1KB223. Thus, the decision to arrest would be lawful if we were to conclude that a reasonable police officer in DCI Harrison's position could have reached the decision that arrest of the Claimants was necessary for a prompt and effective investigation of the Claimants' alleged offences.

23.

We find no support for this contention in the recent authorities. Their effect is that the appropriate test is the twostage one identified in Hayes. That approach incorporates the Wednesbury principle of review via the concept of reasonable grounds, brought forward from the previous law and extended to the new general requirement of necessity (see Hayes at paragraph 15 and Joshua Shields (by his litigation friend Rebecca Shields) v Chief Constable of Merseyside Police[2010] EWCACiv1281at paragraph 13). There is no separate or overarching review based on Wednesbury principles to be carried out. The objective second limb of the test encompasses the concept of Wednesbury reasonableness.”

Jay J elaborated on the analysis of Lord Thomas CJ in (R)L [2017] EWHC 129 (Admin) (a judicial review):

“Insofar as the second limb deploys the adverb “objectively”, all that means is that this Court, in the exercise of its judicial function, applies independent, objective standards to its review of the Defendant's decision: in particular, the reasonableness of the grounds upon which that decision was founded. That review is carried out on the basis of information known to the decision-maker at the time it was made. Finally, the Court does not ask itself whether any police officer could rationally have made the decision under challenge; it directs itself to the particular decision maker and his grounds. In my view, that is what this Court, Lord Thomas CJ presiding, was saying at paragraphs [22] and [23] of its judgment in R (B) v ChiefConstable of the PSNI

The decision to arrest involves a deprivation of liberty. The purpose of the objective test of necessity is to protect the public:

“Where the liberty of the subject is at stake, the decision of police officers is open to review by the court. Whilst the expertise, knowledge and operational judgment of the police officers is to be respected, what is required is careful scrutiny by the court. The second stage of the test therefore amply protects the liberty of the subject.” R (B) v Chief Constable ofNI [2015] EWHC 3691 (Admin) Lord Thomas LCJ.”

The accountability of officers for their actions is achieved by the requirement of necessity, which sets a higher bar than simply “desirable” or “convenient” (R)L [2017] EWHC 129 (Admin) at [40]).

In the Court below, HHJ Baucher correctly identified the two-stage test in Hayes (at paragraphs [45] and [46] of her judgment). She recognised that the second limb of the Hayes test encompasses Wednesbury reasonableness (at [65]). Ms Ventham submitted that the Judge erred in failing to adopt a Wednesbury style approach by allowing the officer the benefit of his operational experience. Instead she stepped into his shoes and effectively retook the decision herself. I do not accept this submission. The Judge’s reference to “Thus it is not a question of asking whether any officer could have made the decision but I must direct myself to DS Murphy and his grounds” at [66]demonstrates her understanding of her reviewing role.

At [65] she recognised the importance of the safeguard provided by the objective test. She recognised that necessity sets a higher bar than desirable or convenient. She acknowledged that it is not for a judge to second guess the operational decisions of experienced police officers, but that there must be a rational reason for an officer to reject alternatives to arrest ([59]). She identified the question whether it is necessary to arrest anyone attending voluntarily is a fact specific assessment ([61]).

In my judgment, her legal analysis demonstrates her mastery and application of the relevant legal principles.

Ms Ventham submitted that the Judge was inconsistent in finding that the arresting officer was experienced and professional but not then accepting his view that it was necessary to arrest MR. However, the effect of Ms Ventham’s submission is to elide stages 1 and 2 of the Hayes test, thereby defeating the statutory purpose of the court’s objective review, which is to protect the public and safeguard liberty.

Next, Ms Ventham contrasted the present case with the cases of Hanningfield and (R)L. In those cases, she said, the court systematically identified the flaws in the officer’s reasoning, a process which did not happen here. I do not accept the submission. At paragraphs [66]-[71], the Judge identifies the flaws in the officer’s reasoning.

I do not accept Ms Ventham’s submission that the Judge placed undue weight on the fact that the offence of harassment was at the lower end of the scale. Read fairly, the relevant reference at [66] in this regard is only part of her reasoning. Although she places some reliance on the low-level seriousness of the offence, she also relies on other facts (individually and collectively) including:

Ms Ventham submitted that the officer’s reasons for arrest were interconnected, a feature the judge failed to recognise. I do not accept her submission. At paragraph [70] of her judgment, the judge makes specific reference to “I am not satisfied that when viewed objectively the combination of factors whether individually or collectively identified by DS Murphy satisfied the test of necessity”.

Ms Ventham submitted that the Judge erred in relying on the fact that MR had his passport because the arresting officer was not aware of this fact. However, read fairly, paragraph [67] of the judgment is to read as a general analysis about the ability of the police to establish MR’s identity, otherwise than by arresting him.

Accordingly, I have arrived at the view that HHJ Baucher approached her task

I now proceed to make my own assessment of the objective necessity of the arrest.

The test of necessity is more than simply ‘desirable’ or ‘convenient’ or ‘reasonable’. It is a high bar, introduced for all offences in 2005 to tighten the accountability of police officers (Hayes at [14]). I simply cannot see that it was necessary to arrest MR on his arrival at the police station. The police were in possession of his mobile phone number and MR had come voluntarily when asked to attend the station.

It seemed to me that, at times, Ms Ventham’s submissions amounted to an attempt to persuade the court as to the merits of her client’s position. She described MR as a ‘shady’ character who had been secretive during his relationship with Ms A. This was not a description of MR which appeared in either the CRIS report or in the judgment below. Moreover, there is, it seems to me, a material distinction between MR’s elusiveness in a personal relationship and his behaviour with the police. Far from being elusive, MR had voluntarily presented himself at the police station shortly after the police first made contact with him. In any event, I accept Mr Cragg’s submission that the personal characteristics of MR are an area where this court should be cautious in interfering with the trial judge’s assessment of matters given the Judge heard evidence and this court has not.

Whether a person attending at a police station voluntarily for the purpose of assisting with an investigation needs to be arrested is fact specific. The officer who has given no thought to alternatives to arrest is exposed to the risk of being found by a Court to have had objectively no reasonable grounds for his belief that arrest was necessary (Hayes at [34] & [40]). The obvious alternative to arrest was to interview MR, establish his identity and require that he hand over his phone. Any difficulties in this regard could have necessitated his arrest at that juncture, but not before. Whilst acknowledging the operational experience and professionalism of the officer, I cannot see a rational basis for the arrest.

For the reasons given above, the appeal and cross appeal are dismissed. The Judge was correct to identify the low threshold for the arresting officer to have reasonable grounds to suspect the commission of an offence by MR. I am satisfied on my review of the CRIS report that the threshold had been crossed. However, I agree with the Judge below that there was no objective need to arrest MR, given his voluntary attendance at the police station. Accordingly, his arrest was unlawful.