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Cite as: [2017] EWHC 921 (QB)

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Neutral Citation Number: [2017] EWHC 921 (QB)
Case No: HQ15X03650

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
28/04/2017

B e f o r e :

MRS JUSTICE MCGOWAN
____________________

Between:
Stewart and Chergui
Claimants
- and -

The Commissioner of Police of the Metropolis
Defendant

____________________

Leslie Thomas QC and Nikolaus Grubeck (instructed by Hodge, Jones & Allen LLP) for the Claimants
Adam Clemens (instructed by Weightmans) for the Defendant
Hearing dates: 21 November to 13 December 2016

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

See also Costs: [2017] EWHC 1307 (QB)

    Mrs Justice McGowan:

    Introduction

  1. The First Claimant, Joanna Stewart, and the Second Claimant, Hassan Chergui, are mother and son. She is the former litigation friend of her son; he was a child at the material time but is now an adult and pursues these proceedings in his own right. The Defendant is the Commissioner of Police of the Metropolis; he was responsible for the actions of his officers.
  2. Together the Claimants bring claims against the Defendant arising out of four incidents. The Claimants sought a jury trial in the High Court, that trial lasted three weeks. Following the determinations of the jury it was agreed that they should not decide quantum. Time was given for written submissions to be served. This judgment deals with the issue of damages only. It has not been necessary to deal with the evidence, which was given over many days, in extensive detail in this judgment.
  3. At the time of the incidents the Claimants lived at an address at Granville Road, Cricklewood. The family had moved there in about May 2010. The jury heard evidence about four incidents which were described, in shorthand form as,
  4. i) the "bike incident", on 24 June 2010,

    ii) "Yasin arrest", on 9 December 2010,

    iii) "1st search incident", 20 September 2012

    iv) "2nd search incident", 27 March 2013.

    History

    v) The "bike incident", 24 June 2010

    a) The Second Claimant was with a friend in Cedar Road in Cricklewood, he was on a bicycle, his friend was on foot. He alleged that he was pursued by a car, taken hold of through the open window of the moving car and pulled from his bicycle. He said he was then grabbed by his arm, which was twisted up behind his back. He was then pushed up against a wall and forcibly searched. It was not until that point that he had been shown identification by either man in the car. He was not told that he was under arrest although he was accused of stealing the bicycle he had been riding. He was placed in the police car and driven to his home address. Once there he was taken from the car up to his flat, the officer kept a tight grip on his arm, causing him pain and discomfort. The grip was not released until they were inside the flat.
    b) The First Claimant and her daughter, Layla, were in the flat. The First Claimant was about 3 months pregnant and her daughter had recently undergone abdominal surgery. It was the Claimants' case that the police, in particular, Police Sergeant Jackson, gave the suspected theft of the bicycle as the reason for the arrest. PS Jackson was alleged to have called the Second Claimant a "stupid boy" and when the First Claimant remonstrated with him, he lost his temper and became aggressive and violent. It was alleged that he grabbed the Second Claimant around the throat and took him forcibly towards the front door of the flat. The First Claimant tried to take hold of her son and PS Jackson then deliberately pushed her in the stomach. She told him she was pregnant and he was alleged to have replied that "it didn't matter" and that what he had done would not cause her any harm. The officer released the grip on the Second Claimant who went back into the lounge, as PS Jackson followed him, he again allegedly made contact with the stomach of the First Claimant, causing her anxiety and discomfort.
    c) Layla Chergui, the daughter of the First and sister of the Second Claimant, asked the officers what the problem was and then went into her own bedroom. It was alleged that PS Jackson followed her into her bedroom and closed the door behind him. The First Claimant came into the room because she was concerned at the officer's behaviour.
    d) The officers then left the flat but whilst on their way PS Jackson again made contact with the First Claimant's stomach as he pushed past her.
    e) The Claimants' case was that at no stage in the street or in the flat was there any mention of cannabis, that if PS Jackson had handed in a wrap of cannabis as an exhibit in this case it must have been taken from elsewhere and dishonestly identified as an exhibit collected from the street where the Second Claimant had thrown it.
    f) The Defendant's case was that the Second Claimant was seen by PS Jackson and another police officer. When the two young men noticed them they moved away. The police followed and the Second Claimant was seen to throw something away. One officer detained the Second Claimant and the other went and retrieved a wrap of what looked like a small amount of cannabis in cling film.
    g) The police said that the Second Claimant was told why he was being detained and arrested. He was then taken to his home address as the officer thought that was the most efficient way to deal with matters, rather than taking him to the police station, only then to call home and await the arrival of an appropriate adult.
    h) PS Jackson gave evidence that no more force than the minimum necessary was used; That the First Claimant and Layla Chergui were aggressive and belligerent; Layla much less so than her mother. He said he told the First Claimant that her son had been detained on suspicion of the possession of drugs. He denied deliberately or recklessly making contact with the First Claimant or making any observations about her being pregnant. He denied the suggestion that he had followed Layla into her bedroom and tried to close the door behind them.
    i) He said he had found the wrap of cannabis in the street where the Second Claimant had discarded it and had booked it into the property log at the police station.
    j) A member of the civilian staff gave evidence that he had subsequently dealt with the cannabis in the usual manner. As the case had not progressed any further it was disposed of much later as part of a routine and systematic clear out of old exhibits.

    vi) "Yasin arrest", 9 December 2010

    a) Yasin Chergui is the elder son of the first and brother of the Second Claimant. Yasin was born on 23 October 1993. He has been convicted of criminal offences and is known to police. The Second Claimant was born on 18 August 1995. On 9 December 2010, the police had a warrant for Yasin's arrest. The police went to the Claimants' address to arrest Yasin under the terms of that warrant.
    b) Outside the flat they arrested the Second Claimant by mistake. He was taken to the police station and released after I hour and 20 minutes.
    c) It was conceded late in the proceedings that this arrest was unlawful.

    vii) "1st search", 20 September 2012

    a) On 18 September 2012, the police obtained authorisation for and applied to the Magistrates for a search warrant for the address of the Claimants. They had not conducted any proper or sufficient investigation into the grounds for obtaining the warrant.
    b) That warrant was executed on 20 September 2012. The search was carried out while the First Claimant, her father, her young daughter and her partner were present. The Second Claimant was not present at the flat at the time.
    c) About eight officers attended the property. No warrant was shown to the First Claimant before or during the search. No warrant was left at the premises at the end of the search. A notice giving information to occupiers was left at the premises at the end of the search.
    d) No damage was caused to the flat and it was searched in a tidy manner leaving no undue mess.

    viii) "2nd search", 27 March 2013

    a) On 15 March 2013 police were again authorised to apply for a search warrant for the First Claimant's flat. On 20 March 2013 police applied for and were granted a warrant. They had not conducted any proper investigation into the grounds for obtaining the warrant.
    b) The warrant was executed on 27 March 2013. About 14 officers attended, the First Claimant was there with her infant as was the Second Claimant. The property was searched and left in a "total mess".
    c) No warrant was shown to the First Claimant, before or during the search, nor was a copy left on the premises. A notice giving information to occupiers was left.
    d) During the search the Second Claimant was handcuffed.
    e) The First Claimant was obliged to use the lavatory under the supervision of a woman police officer.

    Jury decisions

  5. The jury found the following matters proved to the required standard;
  6. i) that the Defendant had proved that the Second Claimant had discarded a wrap of what looked like cannabis in the street,

    ii) that the Defendant had not proved that PS Jackson had identified himself by name, said which police station he came from, showed his warrant card and explained the grounds and object of the search before the search,

    iii) that the Second Claimant had not proved that he was pulled from his bike, had his arm twisted and was pushed up against a wall to be searched,

    iv) that the Defendant had proved that the Second Claimant was told that he was under arrest for the possession of cannabis,

    v) that the First Claimant had not proved that PS Jackson deliberately pushed her in the stomach with both hands,

    vi) that the Second Claimant had proved that PS Jackson had grabbed him around his collar/neck/lapel area to pull him to his feet from the sofa,

    vii) that the Second Claimant had not proved that PS Jackson had grabbed him by the neck/throat and dragged him along the corridor of the flat,

    viii) that the Defendant had not proved that the force used by PS Jackson to move the Second Claimant out of the flat was reasonable and proportionate,

    ix) that the Claimants had not proved that there was no reasonable cause to make the application for the first search warrant and that the application was made maliciously,

    x) that the Defendant had not proved that the first search was a reasonable and proportionate interference with the Claimants' right to respect for their private life,

    xi) that the Defendant had not proved that a copy of the first search warrant was shown to the First Claimant,

    xii) that the Defendant had not proved that a copy of the first search warrant was supplied to the First Claimant,

    xiii) that the Claimants had not proved that there was no reasonable basis to make the application for the second search warrant and that the application was made maliciously,

    xiv) that the Defendant had not proved that the second search was a reasonable and proportionate interference with the Claimants' right to respect for their private life,

    xv) that the Defendant had not proved that a copy of the second search warrant was shown to the First Claimant,

    xvi) that the Defendant had not proved that a copy of the second search warrant was supplied to the First Claimant,

    xvii) that the Defendant had not proved that the handcuffing of the Second Claimant during the second search was a reasonable and proportionate use of force.

  7. The effect of the jury decisions can be summarised as follows
  8. i) The Second Claimant had not been pulled off his moving bicycle by an officer through the window of the moving police car. The Second Claimant did discard the cannabis and therefore the police officers did have good reason to stop him. However, the officer failed to identify himself by name or show his warrant card and describe the reasons for the stop and search before the search was conducted. The officer did tell the Second Claimant that he had been arrested because it was believed he was in possession of cannabis. The officer did not use the force described by the Second Claimant in carrying out the search. The Second Claimant was told at the scene that he was under arrest for possession of cannabis.

    ii) The police did not tell the First Claimant that her son had been arrested for the suspected theft of a bike. PS Jackson did not deliberately push the First Claimant in the stomach with both hands. PS Jackson did grab the Second Claimant by the neck/collar/lapel to pull him to his feet. PS Jackson did not drag the Second Claimant along the corridor by his neck/throat. The force used by the police in the attempt to take the Second Claimant from the flat was not shown to be reasonable and proportionate.

    iii) It was not shown that the application for the first search warrant had been made maliciously and without reasonable cause. However, the Defendant had not proved that the first search was a reasonable and proportionate interference with the Claimants' right to respect for their private lives. Police neither showed nor left a copy of the search warrant at the premises.

    iv) The Claimants had not shown that there was no reasonable basis to apply for the second search warrant and that the application was made maliciously. The Defendant had not demonstrated that the second search was a reasonable and proportionate interference with the Claimants' right to respect for their private lives. The Defendant had not proved that a copy of the second search warrant was either shown or left at the premises. The Defendant had not proved that the use of handcuffs during the second search was reasonable and proportionate.

    The Claim

  9. The Claimants seek;
  10. i) general damages for trespass and breach of their Article 8 rights for the first and second search for both Claimants, assaults and false imprisonment for the Second Claimant,

    ii) special damages for taxi fares incurred by the First Claimant because she was scared to travel on public transport as was the Second Claimant, and for the psychiatric injury said to have been suffered by the First Claimant which it was argued will require counselling. She called a psychiatrist to attest to her psychiatric condition, caused it was said by the series of incidents. Further it was suggested that because she could not attend courses she had lost the opportunity of future employment.

    iii) aggravated and exemplary damages for the nature of the warrant applications and the searches of the flat, the repeated nature of the unlawful conduct, a refusal to apologise, the lateness of the concession that the "Yasin arrest" was unlawful and

    iv) declaratory relief.

    The Claimants set out their claims in tabular form, the sums claimed have altered throughout the proceedings and increased after further thought. In addition, they seek the sum of 15,000 by way of exemplary damages. The Defendant's submitted figures are added in the right-hand column.

    JOANNA STEWART

    Defendant

    Breach of Article 8 ECHR - 1st search

    3,000

    750

    Trespass - 1st search

    1,200

    750

    Breach of Article 8 ECHR - 2nd search

    5,000

    750

    Trespass - 2nd search

    1,200

    750

    Sub-total: basic damages

    10,400

     

    Aggravated damages (1.5 x basic damages)

    15,600

     

    Personal injury

    5,000

    Nil or 1,400

    Special damages (past losses)

    9,614

     

    Special damages (future losses)

    2,000

     

    TOTAL (Ms Stewart)

    42,614

     

         

    HASSAN CHERGUI

    Defendant

    False imprisonment - bike incident (search)

    200

     

    False imprisonment - bike incident (s 30 PACE)

    750

     

    False imprisonment - Yasin arrest

    1,300 (agreed)

    1,300

    Assault - bike incident (search)

    938

    200

    Assault - bike incident (handling during FI)

    938

     

    Assault - bike incident (pulling from sofa)

    938

    200

    Assault - bike incident (attempting to move out of flat)

    938

    250

    Assault - Yasin arrest warrant incident (handcuffing & general interference)

    938

    200

    Assault - 2nd search (handcuffing)

    938

    250

    Breach of Article 8 ECHR - 1st search

    750

     

    Breach of Article 8 ECHR - 2nd search

    2,000

     

    Sub-total: basic damages

    10,628

     

    Aggravated damages (1.5 x basic damages)

    15,942

     

    TOTAL (Hassan)

    26,570

     

  11. In written submissions both parties have referred to the leading authorities in this area. Both sides refer to Mohidin, Khan and Hegazy v Commissioner of the Police for the Metropolis [2015] EWHC 2740 (QB). It is referred to as the "Gilbart" approach and it is suggested that it signals a departure from the established line of thinking as set out in Thompson and Hsu v Commissioner of Metropolitan Police [1997] EWCA Civ 3083. In Hegazy Gilbart J does apply Thompson and Hsu in his assessment of the claims. I do not see the approach taken as novel or as a departure from general principles. It demonstrates a clear and transparent line of reasoning. In any event, Hegazy is a very different case from the instant. In that case the behaviour of the individual officers was such that they faced criminal proceedings and were joined in the action as individual defendants.
  12. The authorities and the Judicial College Guidelines are of great assistance but having seen the witnesses and what in their testimony was accepted or rejected by the jury is of particular value in determining the awards in this case. The earlier cases can only be of broad guidance as to principle. I have sought to apply the general principles and to balance the essential features of each incident with the pain and suffering or injury caused, as set out in Thompson and Hsu, (ante), to meet "the circumstances and the degree of harm suffered". To that extent the Hegazy approach provides a helpful model.
  13. Assessment

    Bicycle Incident

  14. It should be acknowledged that the Claimants' case was not accepted by the jury in some very material respects. They, individually or in concert, alleged that the entire basis for the initial stop and arrest was fabricated by the officer. It was asserted that PS Jackson had lied about the arrest, had taken cannabis from elsewhere and falsely entered it into the system and it might be thought that it was being suggested that civilian staff had somehow colluded in this dishonest plan. It was alleged that PS Jackson had deliberately or recklessly made physical contact with a woman he had been told was pregnant and that he had followed a young woman into her bedroom and closed the door behind him for some unspecified but sinister motive. I found the First Claimant to be a manipulative witness who had a significant degree of influence over her son during these proceedings. A legitimate claim of limited proportions was seen by her as a vehicle through which enhanced claims could be pursued. She was undoubtedly the motivating force behind these claims.
  15. On the other hand, PS Jackson did not follow proper procedure at the arrest and it was clear that he did lose his self-control whilst in the flat and treated the Second Claimant in an aggressive and unduly forceful manner.
  16. The police were entitled to stop and search the Second Claimant in Cedar Road, proper procedure was not followed but I do not accept that the Second Claimant was unduly shocked by what he must have known was a proper and justified arrest. The failure to follow proper procedure is adequately marked by an award of 250.
  17. I do not accept that there was a period of unlawful detention which merits compensation whilst the Second Claimant was taken home rather than to the police station.
  18. Once in the flat the officer's conduct was unacceptable and it should be marked that the violence occurred in the Second Claimant's own home. The injuries suffered were of no serious consequence; reddening and some pain for a short period. For the act of being pulled from the sofa and generally treated with unnecessary force there will be an award of 350 on each.
  19. Yasin Arrest

  20. The Yasin arrest was unlawful. The Second Claimant was handcuffed and detained. None of that should have happened but the situation was not aggravated by the application of any excessive force. The figure of 1,300 has been agreed for the wrongful arrest. The Second Claimant was young and was handcuffed in a public place, immediately outside his home address. That is a significant feature and will be marked by an award of 500.
  21. Searches

  22. The applications for the two search warrants are in the broadest terms the most concerning aspect of the Defendant's conduct. There appears to have been no proper or adequate investigation of the intelligence material provided upon which the warrants were sought. Intelligence showed that some young men were dealing drugs from the block of flats and probably storing them there. The link to the Claimants' address or family was not fully investigated. The police should have been aware of when Yasin was in custody or subject to electronic tagging. The fact of the searches was obviously unpleasant and distressing and would cause some concern that there might be a repetition. There was no possible reason why the occupier's copy of warrants which had been obtained should not have been shown to and left with the First Claimant.
  23. I award the sums of 1,200 to the First Claimant on each of the Art 8 and trespass claims for the first search. I award her 1,500 on each of the claims for the second search. It was a second instance of unlawful interference. I factor into these sums the evidence of her stress and anxiety at the repetition of the searches.
  24. I do not find that any claim for compensation arises for the Second Claimant in respect of the first search in the form sought. He was not present. In so far as his room and belongings were interfered with, there is some nominal award of 200 for the first search. On each of his claims for the second search he should have awards of 1,200 on each claim. The use of handcuffs on the second occasion was an unnecessary interference and distressing but there was not the same element of public humiliation as on the earlier occasion and I therefore find that the appropriate sum is 350.
  25. Special Damages

  26. The evidence given by both Claimants was totally unsatisfactory on the question of special damages. A factor recognised in the written submissions in which the sums claimed are reduced by 50% from the original claim. The First Claimant produced some taxi receipts which did not go to support the contention she raised. Her evidence that she was too frightened to leave the flat unless by taxi was frankly incredible. The receipts demonstrated return taxi journeys from shopping trips. Particularly as this fear was not something that she had raised with her doctor or the psychiatrist specifically instructed in these proceedings. The Second Claimant is the First Claimant's carer but does not seem to have travelled with her in her taxi journeys. I will not speculate as to where the inspiration for this claim emanated but it is without merit.
  27. Precisely the same criticism applies to the claim made by her on behalf of the Second Claimant for taxi fares to and from south east London to visit his father. He said that he too was too scared to venture out in his immediate neighbourhood but did not begin to explain why that would necessitate taking a taxi across London.
  28. As mentioned above psychiatric evidence was called on behalf of the First Claimant. Dr Bowers gave evidence of his diagnosis based on an interview with the First Claimant on 1 August 2014 for one hour. He only had the information which she provided about the incidents, tailored by her to enhance her claim. He described her as suffering from stress caused by "prolonged and protracted intrusions into her personal space". He found that she had previously suffered from depressive symptoms "in response to life's stressors". He had been asked to opine on her inability to attend courses, at that stage there was a claim for loss on this basis. It was clear that he had not previously seen all her other medical records as he was not aware that other causes, such as dizzy spells, had been the explanation for her non-attendance. He said that "absent any police action she would have needed anti-depressant" medication anyway. The sum of 2,000 is claimed for a series of privately funded counselling sessions to be carried out at some unspecified date in the future. No evidence was called to show that she had sought treatment after that diagnosis in 2014 at the hearing in 2016. I do not find any evidential basis upon which that claim is made out.
  29. Aggravated Damages.

  30. The basic principles governing the award of aggravated damages are set out in Thompson and Hsu v Commissioner, see ante,
  31. "awarded where there are aggravating features about the case which would result in the plaintiff not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award. Aggravating features can include humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest or the prosecution which shows that they had behaved in a high handed, insulting, malicious or oppressive manner either in relation to the arrest or imprisonment or in conducting the prosecution."
  32. The compensation awarded in each of the claims above has been adjusted upward in the Claimants' favour where appropriate to take account of the circumstances of the incident. If this is the "Gilbart" approach, then I follow it as it shows how and why a figure has been reached and that each award reflects the features of the claim. I do not find that there should be the blanket effect of a multiplier to reflect intrinsic features of some claims and not others.
  33. Exemplary Damages

  34. The obtaining of the search warrants in this case was not found to be malicious. If they had been obtained in mala fides this might have been a case which justified the award of exemplary damages. The procedures followed in this case were not adequate but to describe them as "particularly deserving of condemnation" is totally unwarranted. Rookes v Barnard [1964] AC 1129.
  35. Reliance is placed on a failure to apologise, persistence in the evidence that officers believed that warrants were shown to the First Claimant, fabrication of the records of search and the Defendant's resistance to the quantum submissions of the Claimants. None of these factors individually or in combination would justify a finding that exemplary damages are merited in this case. The jury's decisions did not all go in the Claimants' favour. Although the warrants were not shown or left at the premises, some documentation was left. The procedure was inadequate and sloppy, that should never be the case but this is not an instance of police behaviour that is properly characterised as requiring condemnation. The damage done can be adequately compensated by awards of general damages and no exemplary award is merited.
  36. It is argued by the Claimants that the lateness of the acknowledgment that the Yasin arrest was unlawful would justify the award of exemplary damages. The timing was a decision taken for forensic reasons, if it has any consequence and it may not, that could only go to costs.
  37. If the original claim for exemplary damages was based on the suggestion that the conduct of the police was a course of conduct amounting to harassment under s1 of the Protection from Harassment Act 1997, then it should not have been pursued. The allegation of harassment was never put to any officer and has not been advanced. It was pleaded and remained in the amended Particulars of Claim as late as the beginning of the trial but was not raised during the trial.
  38. Declaratory Relief

  39. A declaration is sought to reflect the jury's findings. No further reasoning than that is given. There is no basis upon which such an order is required.
  40. The damages to be paid in this case are 5,400 to the First Claimant and 5,700 to the Second Claimant.
  41. If interest and costs cannot be agreed between the parties then they will be assessed. It is to be hoped that no further public funds need be spent on a hearing.
  42. Postscript

  43. At its very highest this was a claim for just over 80,000 by the end of the trial. It related to four incidents of simple factual dispute. Both sides are funded by the public directly or indirectly. It was set down for a jury trial of three weeks in the High Court. The costs will be very substantial. The issues to be determined are of great importance to the parties and to the public but it is difficult to see why a jury trial in the High Court was thought necessary to resolve those issues.


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