Desmond Campbell v Commissioner of Police for the Metropolis

Grounds 1 and 2 relate to Mr Campbell’s contention that the MPC had failed to file a defence or adequate defence in one of the sets of proceedings (ending 719). The judge understood this complaint to have been withdrawn in relation to those proceedings (judgment paragraph 3(3)). Mr Campbell says that was a misunderstanding. However, it is clear that the point could have gone nowhere, in the circumstances. Indeed, the judge dealt with an equivalent complaint raised in another of the sets of proceedings (ending 215), explaining that no default – if there was any – could have made a difference, in light of the way in which he focused and dealt with the substance of the case. Ground 19, which sought to challenge that conclusion, is hopeless. The judge was entitled, indeed correct, to focus on the substance of the claims being pursued and whether they stood to be struck out. That was the heart of the matter before him, and is the heart of the matter before me.

Ground 18 is another good illustration. An order dated 26 April 2018 had transferred one of the sets of proceedings from the County Court in which it had been issued to the central London County Court, as the court dealing with the other sets of proceedings. Mr Campbell’s case was that the MPC’s application for that transfer order had not been served with the order, entitling him to apply to set aside the order in accordance with CPR 23.10. He made such an application. The judge’s conclusion, having addressed the substance of the claims and concluded that they stood to be struck out, was that there was no sustainable reason to set aside the transfer order (judgment paragraph 46). Again, the judge was plainly right – and certainly entitled – to come to that conclusion and deal with the matters in the way that he did.

Grounds 3, 4 and 7 in my judgment came to this. Mr Campbell submits that the judge’s strikeout conclusions did not reflect the MPC’s own submissions. He points to a paragraph in the MPC’s skeleton argument which referred to strike out pursuant to CPR ‘rule 4.4(2)(a) and (b)’, whereas the judge struck out the statements of case pursuant to rule 3.4(2)(a) and (b). This was obviously a typo, and nobody can have been misled by it. The same is true of a paragraph in the MPC’s skeleton argument which referred to the ‘claimant’ inviting the court to strike out the claims.

The first key reason (paragraph 33) was that the claims being made were, as the judge put it: “at best a collateral attack and at worst a direct attack on the forfeiture order and costs orders in the forfeiture proceedings… This attempt is an abuse of the process of the court because it constitutes an attempt to circumvent the forfeiture and costs orders. If the claimant were to be successful, he would recover as damages the confiscated cash and costs ordered in the forfeiture proceedings and thus would indirectly overturn the purpose and effect of the forfeiture and costs orders. The claimant is attempting to secure by another route what he failed to achieve in the forfeiture proceedings, namely, the retention of his cash. The extent to which the forfeiture proceedings should have investigated the legality of the original seizure has already been litigated in the High Court and the Court of Appeal. So far as forfeiture is concerned, the legality of, or reasons given for the original seizure are irrelevant. This is the effect of the rulings on the forfeiture proceedings, including the Court of Appeal.”

The second key reason (paragraph 37.1 and 37.2) was the absence of relevant damage capable of constituting recoverable loss. As the judge put it, in the context of a claim based on the tort of misfeasance in public office: “any claim for damages for misfeasance in a public office cannot succeed without proof of actual damage. Due to the fact that the seizure of the cash was overtaken by its forfeiture, no such actual damage can be proved and none is claimed.” As he said, in the context of any claim for deceit: “deceit is not actionable without proof of damage and without collateral he challenging the magistrates courts forfeiture order. Any loss would have to be limited to that period between the seizure and forfeiture order. No such loss could have occurred.”

Mr Campbell had, and took, the opportunity in the Public Law Claims to challenge the legality of the ultimate forfeiture of the cash (a) for reasons relating to the lawfulness of that order, the justification for it, and the process at the hearing from which it resulted; and (b) for reasons relating to the lawfulness of previous anterior steps in the process relating to those steps. The High Court (Goss J) dealt with all of the points which Mr Campbell was putting forward. They were all rejected. Permission to appeal to the Court of Appeal was granted in relation to topic (b). The Court of Appeal concluded that no question of lawfulness of previous anterior steps could serve to undermine the lawfulness of the ultimate forfeiture order.

The essence of what the Court of Appeal decided was this. The correct analysis, as a matter of construction of the statutory scheme, application of public law principle, and in the light of relevant authority, was that the ultimate forfeiture order – legally valid as lawful, fair and justified in its own terms – was impervious to being brought into question by reference to any point regarding propriety and anterior steps.

That meant Mr Campbell was lawfully out of pocket, and to be kept out of pocket, so far as the forfeiture and retention of the £7720 was concerned; and costs orders were properly imposed on him. The cash had lawfully been divested from Mr Campbell, as a justified and fair step, pursuant to a statutory scheme concerned with proceeds of crime. No point relating to impropriety and anterior steps entitled him to have the cash restored to him, or any costs order reversed. Arguments about lawfulness of anterior steps were legally irrelevant, because – in law and under this statutory scheme – Mr Campbell was justifiedly to remain divested and deprived of the cash. The divestment and deprivation was impervious to claims that it should be reversed by reference to any impropriety at any anterior stage. This reflected the correct, and intended, operation of the statutory scheme. It also reflected a clear legal policy. If the divestment were unjustified it would stand to be reversed. But if the divestment was justified, lawful and fair, the individual would remain out of pocket and could not seek to reverse it.

That being the position, established in the Public Law claims, in my judgment the judge was plainly correct as to each of the two key objections which he identified and which I have described. What Mr Campbell seeks, through his various private law causes of action, to do is to recover in respect of the economic impact on him of the cash having been seized and retained, and of the economic consequences linked to an consequential upon that seizure and retention. He does so, by characterising as private law breaches various species of alleged impropriety relating to anterior steps, and relating to the ultimate forfeiture. There can be no room for such a claim at common law, invoking a private law course of action. It would wholly undermine the Court of Appeal’s analysis of the statutory scheme, and relevant legal policy. Mr Campbell would be reversing the divestment and deprivation. He would be recovering, as damages, the very cash that was seized, retained and ultimately forfeit. He would be doing so by pointing to a lawfulness or impropriety at anterior stages. He would be claiming as recoverable loss the fact and consequence of being out of pocket in precisely the way held by the Court of Appeal to be impervious to challenge. Moreover, he would – by including in his judicial review proceedings the remedy of damages under a recognisable private law cause of action – have achieved precisely the opposite result to that arrived at by the Court of Appeal. So would any other individual in an equivalent position, in any case. The Metropolitan police would be being required to pay, as damages, the very amount of which – under the statutory scheme, properly interpreted – it was the lawful entitlement of the state to divest, retain and deprive Mr Campbell, on the strong legal and public policy grounds that arise in the context of proceeds of crime.

By his ground 9, Mr Campbell submits that he cannot be taken to be mounting a collateral attack on the Court of Appeal’s analysis by impugning the propriety of anterior steps, given that the Court of Appeal regarded that very topic as legally irrelevant and therefore did not address any such question of propriety. The answer to that point is that the legal irrelevancy of propriety of anterior steps was because of the conclusion, pursuant to the statutory scheme and as a matter of policy and principle, that the divestment of the cash stood impervious to any complaint of that kind. The raising of such a complaint, seeking to recover the cash as damages, straightforwardly attacks that analysis and its logic.

By paragraphs 18 and 19 of his first skeleton argument, Mr Campbell emphasises that the Court of Appeal did not address lawfulness of the forfeiture order, but only whether it’s lawfulness could be impugned by reference to challenges to the anterior steps. In those circumstances, as Mr Campbell emphasised in his oral submissions, there is no collateral attack on the public law analysis in now impugning the forfeiture order. The answer to that contention is that the lawfulness of the forfeiture order was raised, and all points relating to it capable of being raised, in the Public Law Claims. Goss J upheld the forfeiture order as lawful. What went before the Court of Appeal was the aspect of the case which had been recognised as arguable, and therefore attracting permission to appeal, namely whether in making the ultimate forfeiture order it was relevant to address alleged impropriety in relation to anterior steps. The private law claims disclose no ground on which the lawfulness, fairness or justification for the ultimate forfeiture order can be impugned through the back door of County Court damages proceedings, having failed in the direct challenge of the public law claims.

By paragraph 23 of his first skeleton argument (part of his ground 9), Mr Campbell has submitted – citing passages from an earlier Divisional Court authority Cook v SOCA [2010] EWHC 2119 (Admin) [2011] 1 WLR 144 – that monies unlawfully seized do not in certain circumstances become lawfully retained. In the present case, the Court of Appeal has determined that – whether or not unlawfully seized – the cash in the present case has been lawfully forfeited. It did so following a hearing at which Mr Campbell was represented by Leading Counsel. The nature of the point now raised compellingly illustrates the way in which the arguments now sought to be advanced by way of the private law claims cut directly across the issues raised and resolved in the public law claims. The point made gives no support in my judgment for the conclusion that a viable private law claim might in principle succeed.

In his ground 5, and paragraph 13.5 of his first skeleton argument, Mr Campbell submits that there was and would have been a course open to him under the Proceeds of Crime Act 2002 section 297 to make an application, prior to the forfeiture hearing, and thereby obtain the return of the cash seized, if he was right that there had been an impropriety in an anterior step. That point, in my judgment, again serves to reinforce the fact that the correct analysis as to the reversibility of the divestment of the cash is answered by reference to the statutory scheme, the legal and public policy principles and implications arising under it, and the public law analysis. That is precisely the subject matter of the public law claims, which gave rise to the full opportunity for Mr Campbell to raise any such arguments, and which position was determinatively resolved by the judgements of Goss J and Munby LJ.

I have had well in mind the various species of private law claim raised by Mr Campbell, or which could potentially have characterised his County Court proceedings. They have included conversion, trespass to goods, fraud, deceit, restitution, and misfeasance in public office. I do not propose to articulate or analyse these or any other species of claim. I am quite satisfied that the analysis, as described above and subject to the topics which appear below, are answered by the analysis which I have set out. The judge was right, for the reasons which he gave, and there is no arguable error of law in his analysis.

There were two documents headed “Form A” (further application for continued detention of seized cash), one of which (sent to Mr Campbell at the time) was marked “N/A” in relation to the date of the latest order for continued detention of seized cash and the amount detained under the last order, the other of (included by the MPC in the bundle for the forfeiture hearing) contained a date of 19/02/2014 and an amount of “£8000 (est)”.

Mr Campbell points to two versions of a letter to him dated 12 June 2014 from the MPC referring to the enclosed Form G, and providing information regarding the upcoming hearing and how it could be dealt with. One version was sent to Mr Campbell and the other sent to the court. Their contents are different. This was something of which Mr Campbell became aware at court on 14 June 2014 when, by reason of the actions of the court and in the face of what he says was inhibiting conduct by the MPC, he obtained a copy.

Mr Campbell points to two versions of the Form G dated 12 June 2014. One is the correct template obtained by him online, at the time, which includes as one of the elements identification of the “place of seizure”. The other is the form as filed at court, which omits that element.

Mr Campbell points to the transcript of an interview which he gave on 10 January 2014, the contents of which he contrasts with those of a summary of interview, which summary was used as the basis of a statement by an environment consultant Dr Studds for the forfeiture hearing. Mr Campbell submits: that the summary was written in such a way as deliberately to make it appear that Mr Campbell had accepted that he needed a permit for the filtering and cleaning of oil; whereas the transcript shows that he did not. His case is that this deliberately and falsely undermined the statement of Dr Studds, which was before the Court when it made the forfeiture order in March 2015.

Mr Campbell also submits that, at the hearing in relation to the forfeiture order he was unfairly prevented from making arguments about these materials and their implications.

All of the materials to which I have referred as the relevant primary documents were available to Mr Campbell well before the hearing which led to the making of the forfeiture order. He accepts that. Any and all points which arose from those documents, including the comparisons of different documents, could be made within the forfeiture proceedings themselves. That was the forum for addressing, before the court, the implications of the materials and what they showed in relation to the MPC position, and the conclusions to which the court should come.

In circumstances where the forfeiture order was made by the court, and impugned in the Public Law Claims, all of the relevant primary documents were available for consideration in those claims. To the extent that there was some basis for showing impropriety or unfairness in the proceeds of crime process, material to render legally unsafe the forfeiture order itself, that was something which could and should be pursued in the public law forum. Indeed, as Mr Campbell showed me, questions arising out of complaints and points which Mr Campbell had or had not been permitted to make at the forfeiture hearing, was touched on in those proceedings. In the Court of Appeal Mr Campbell was represented by Leading Counsel, instructed by the Bar Pro Bono Unit. Insofar as any viable claim arose from the primary documents, showing that the court had been deliberately misled into making the forfeiture order, that claim could, should and no doubt would have been advanced.

For my part, I am not at all surprised that no claim was evidently advanced on Mr Campbell’s behalf by his Leading Counsel, based on the primary documents which I have summarised, seeking to demonstrate that the forfeiture order was vitiated by some dishonest misrepresentation or fraud on the court; nor that any curtailment on the arguments which Mr Campbell was able to advance had an vitiating effect. Having considered the documents to which I have referred, I could see – on the face of those documents – no objective evidence to support the thesis that a fraud on the court took place.

By way of illustration as to what I made of the documents, I make the following points.

There is very good reason, in my judgment, why the authorities relating to self-standing later claims of fraud in conjunction with the making of court orders emphasise the significance and admissibility in appropriate cases of fresh evidence. That is because, to the extent that the problem is identifiable from materials which were available at the time when the court made its order, the parties to the proceedings can be expected to ventilate any concern in those proceedings, together with any appeal or review challenge which arises out of those proceedings. It is therefore critical to ask whether there is any fresh evidence, having subsequently come to light, which supports the claim that a court order was obtained by fraud. In the present case, Mr Campbell’s answer to that point is that he is able to point to the pleaded Defence. It is that which I now turn.

Mr Campbell took me in detail through the relevant paragraphs of the Particulars of Claim in proceedings 049 and the contentions contained within the MPC’s pleaded Defence at paragraph 12, 25 and 41. The MPC’s pleaded admissions in that Defence, in my judgment, plainly go nowhere near constituting admissions of fraud on the court in making the forfeiture order. They record: the admission “that there was a minor cosmetic difference between the two letters” of 12 June 2014; that there was a “minimal” difference between the two Form As which “would not have changed the outcome of the hearing”; that the interview was summarised using the text which it contains, rather than the text which Mr Campbell identifies as present in the transcript, but it is “denied that this amounts to fabrication in any way whatsoever” and “that the edits caused them to be inaccurate summaries of the question asked all the answers given”.

The judge put it this way (paragraph 44): “[Mr Campbell] submits that the [MPC] has admitted deception. In fact the [MPC] has admitted nothing of the sort. [Mr Campbell]’s understanding of what has been ‘admitted’ is misconceived. Nothing that has been admitted is remotely determinative of liability.” The judge was plainly right.

It is right, and in Mr Campbell’s favour, that these claims do not fall foul of the points made above in relation to the ‘economic’ plans, as being unable to stand as actionable claims for recoverable loss in the light of the principled logic of the judgements of the courts in the Public Law Claims. They are distinct and raise distinct questions.

I accept, for the purposes of this application for permission to appeal, that no question of abuse arises from the fact that damages claims were not – as they could have been – included within the body of the claim made for judicial review.

The claim relating to false imprisonment is parasitic upon the claim of wrongful arrest, as the judge rightly recognised (paragraph 41) and Mr Campbell rightly accepts.

In my judgment, the judge gave what is clearly a sound and sustainable reason for striking out that claim (paragraph 39): “the claimant’s claim that he was wrongfully arrested is simply unsustainable. It is founded on the misinformed submission that money-laundering is not a criminal offence.” This mirrored reasoning earlier in the judgment (paragraph 26), where the judge described the criminal offences created by statute in relation to money-laundering: acquisition, use and possession of criminal property (2002 Act sections 327-329).

In seeking permission to appeal against that reasoning, Mr Campbell says this does not meet the point he seeks to advance by the claim. He submits that money laundering is an offence, but only where the relevant and essential element of acquisition or use or possession is present. On that basis he submits that the arrest is unlawful unless one of these elements is expressly stated by the arresting officer. In support of the contention he cites the authority of Abbassy v MPC [1990] 1 WLR 385, a case about whether the adequacy of a reason for arrest “unlawful possession” of a car should have been left to a jury. In my judgment, that case does not support the proposition that an arrest which is communicated to have been on suspicion of “money-laundering” requires that the arresting officer, who has found and is seizing cash found at the individual’s property during a search at which he is present, and which is believed to be the proceeds of crime, must, in order for the arrest to be lawful, use the language of acquisition or alternatively use or alternatively possession. Mr Campbell had no authority even arguably supporting that proposition.

In reflecting on the submissions, as Mr Campbell asked me to do, I have looked at some of the subsequent caselaw in which Abbassy was cited. The basic principle is that an arresting officer is entitled to use simple, non-technical language to give the essential legal and factual grounds for arrest: Taylor v Thames Valley Chief Constable [2004] 1 WLR 3155 at paragraph 26. I also found instructive the passage in Walker v MPC [2015] 1 WLR 312 at paragraphs 39-43, where a reference to “public order” was legally adequate in the circumstances, notwithstanding that this “can connote a wide variety of offences”. There is clearly no prospect of success in Mr Campbell’s contention (as put at paragraph 17.3 of its first skeleton argument) that: “It was not possible for me to extract from the … words why I had been arrested”.

I am not persuaded that there is any arguable error of law in the judgment, arising out of Mr Campbell’s contention that “money-laundering” is not of itself a criminal offence.

The judge dealt with this matter in a lengthy and detailed paragraph (paragraph 40). I do not propose to set it out. I am quite satisfied, from the content of that paragraph, that the judge reached a proper and justified – and indeed correct – conclusion, for the reasons he gave. He identified the appropriate limitation period, considered the nature of the claim, identified the statutory source of relevant factors, and explained the position in detail so far concerned proportionality, the implications of delay, and the position of the claimant.

Mr Campbell did not in terms seek to impugn the judge’s assessment so far as the limitation period and its application were concerned. He emphasised, in his first skeleton argument, that article 3 of schedule 1 to the human rights act 1998 (inhuman and degrading treatment) was engaged. His oral submission was that article 3 was a basis for impugning the judge’s approach to the limitation period issue. In my judgment, there is nothing in that submission. The judge had well in mind, and carefully considered, the nature of the claim, and the implications on the evidence for the claimant. It is, in my judgment, obvious that had the suggestion being made that the article 3 threshold had been crossed, the judge would have rejected, given the way that he described the treatment. As he put it: Mr Campbell “had to walk out of his house when arrested barefoot; he was unlawfully restrained by handcuffs and was pushed by police officers”. The judge referred to these as “allegations that the police used what can only be modestly unnecessary force in the context of lawful arrest”. He had in mind that there was “no personal injury element… Backed up by medical evidence”.

This part of the analysis was in my judgment clearly open to the judge, and the invocation of article 3 text – and would have taken – matters no further, so far as the limitation point was concerned in light of the features of the case to which the judge referred in paragraph 40. Mr Campbell pointed to nothing in the article 3 point which served to discipline or extend limitation periods for tort claims. I bear in mind that the human rights act contains within it a 12-month (one year) time period, subject to any extension of time. That factor reinforces, rather than undermines, the analysis that the judge was fully entitled to rely on the three-year statutory limitation period for a claim of assault. I can see no properly arguable basis on which this aspect of the appeal could succeed.