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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Taylor v Thames Valley Police [2004] EWCA Civ 858 (06 July 2004) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2004/858.html Cite as: [2004] 1 WLR 3155, [2004] WLR 3155, [2004] 3 All ER 503, [2004] EWCA Civ 858 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE READING COUNTY COURT
His Honour Judge Catlin
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE CLARKE
and
LORD JUSTICE SEDLEY
____________________
DANIEL TAYLOR (A child proceeding by his mother and litigation friend CM Taylor) |
Claimant/ Respondent |
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- and - |
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CHIEF CONSTABLE OF THAMES VALLEY POLICE |
Defendant/Appellant |
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Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Edward Faulks QC and Mr Iain Daniels (instructed by Barlow Lyde & Gilbert) for the Defendant/Appellant
____________________
Crown Copyright ©
Lord Justice Clarke:
Introduction:
Q. Has the Chief Constable/defendant satisfied you that on 31 May 1998 PC McKenzie had formed a genuine suspicion herself that the claimant had committed the offence of violent disorder?
A. Yes.
Q. What did PC McKenzie say to the claimant, if anything, when she arrested him?
A. We believe that PC McKenzie said: "I am arresting you on suspicion of violent disorder on 18 April 1998 at Hillgrove Farm."
Q. Has the Claimant satisfied you that it was not reasonable and/or necessary to take hold of the claimant's arm to effect his arrest and detention?
A. No.
i) whether the words spoken to the respondent on arrest were sufficient lawfully to effect his arrest;ii) whether PC McKenzie's genuine suspicion was reasonably held;
iii) whether PC McKenzie exercised her discretion in a manner which was reasonable in accordance with Wednesbury principles; and
iv) whether the period of time that the claimant was detained was of such length as to make an otherwise lawful detention unlawful.
"No arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of or as soon as practicable after the arrest."
It was common ground that the burden of proving that the arrest was lawful was on the appellant. The judge held that he had failed to discharge that burden. The question raised by the first issue in this appeal is whether he was entitled so to hold.
The background facts
The proceedings and trial
"The Plaintiff was not properly informed of the reasons for his arrest. PC McKenzie did state to the Claimant's mother that the Claimant had been arrested for a public order offence. However, this was said as the Claimant was being taken to the police van and was not heard by the Claimant. If anything was said to the Claimant about the reasons for his arrest it was wholly unclear and not properly communicated to him. The Claimant first understood the reason for his arrest when he arrived in the custody suite and was told he was suspected of violent disorder on 18 April 1998. His arrest was thereby unlawful and he was thereby unlawfully imprisoned."
"Further or in the alternative, even if the arrest is found to have been lawful (which is denied) the period over which the Claimant was detained was excessive and unreasonable in all the circumstances."
The appellant did not resist the application for permission to amend and it was accordingly granted.
Wrongful arrest?
"(3) no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as reasonably practicable after, the arrest.
(4) Where a person is arrested by a constable, sub-section (3) applies regardless of whether the ground for the arrest is obvious."
"(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away. There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter."
Those principles must now be read subject to section 28(4) of PACE but have been followed in a number of later cases.
"Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him."
"Paragraph (2) of Article 5 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This protection is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph (2) any person arrested must be told in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph (4). Whilst this information must be conveyed 'promptly' (in French: 'dans le plus court dιlai'), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features."
"6. A question to be answered is whether the officer, as I understand it from the authorities, acted reasonably in her efforts to communicate adequate words. The officer herself was told that the reason for arrest was because of the violent disorder at Hillgrove Farm on 18th April 1998. She did not ask, nor was she told, of the nature of the claimant's involvement. There is no evidence either way as to whether Sergeant Deacon, who was the sergeant instructing WPC McKenzie to effect the arrest, would have been able to tell WPC McKenzie of the nature of the violent disorder alleged against the claimant. It is not in dispute that he had a photograph of the claimant, selected from a video, but whether he recalled or had a note of the claimant's involvement on 18th April is unknown. The jury would not have heard that evidence, and I have not heard that evidence either way. There is no doubt that he would have had a record somewhere of the video. Whether it was with him or not on the day of the arrest, 31st May, is unknown. But there is undoubtedly a video to which he had had access and still had access on 31st May, which would have shown the claimant's stone throwing activities, if that is a proper way to describe them, involving also other acts of stone throwing, missile throwing of others, causing serious damage to property, including a house and cars and a serious degree of violence on 18th April. That information was all available to him, but whether he had it with him at the time or whether he had it in his head, which he probably would have done because he had been studying the videos, and whether he would have recalled what the claimant was alleged to have done, we do not know.
7. I have considered this matter very carefully, because of the nature of the claim, the nature of the difficulties which police officers have in dealing with these huge disturbances, of which this was one, and the need to look at the matter sensibly rather than be nit-picking about things. Having done so, in my judgment it would have been reasonable and not difficult, despite the scale of the operation, on the information I have, for the sergeant to have had a brief note whether it be on the photograph of somewhere in his papers, or indeed in his mind such as the note which appears at page 144 of the bundle. That is a note on a photograph, that as far as we are aware he did not have, but there seems to me no particular difficulty why some sort of brief note of that sort would, if necessary, have been of assistance to remind him of why this person needed to be arrested, not just because of general involvement in violent disorder, but because of the particular role that it is alleged that he played in it. That photograph bears the legend, "Throwing missiles towards farmhouse", and it is something of that sort, it seems to me, which should have been easily available to the sergeant, and if available to him then available to the arresting officer. In my judgment, it would also have been reasonable for WPC McKenzie to have been told more than just violent disorder with the date and the place. In my judgment, it was unreasonable of her not to ask or probably not to be told of more detail, not vast amounts of detail, but a little detail so that she could tell the claimant whether it is a claimant of this age or older in simple terms why they had been arrested. My understanding of section 28 and the authorities before it and since is that that is what the law requires, for good reason. People need to know why they are being arrested not in technical terms, but in simple terms that an ordinary person is likely to understand. In other words, what had he done?
8. So, in my judgment, it follows that she could have obtained that information, if she had asked for it, or she ought to have been able to obtain that information if she had asked for it, and if it was not available it was unreasonable for it not to be made available, and it was unreasonable for her not to ask for it. "
"2(1) Where three of more persons who are present together use or threaten unlawful violence and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, each of the persons threatening unlawful violence is guilty of unlawful disorder.
6(2) A person is guilty of violent disorder if he intends to use or threaten violence or is aware that his conduct may be violent or threaten violence.
8 'violence' means any violent conduct so that
(a) except in the context of affray, it includes violent conduct towards property as well as towards persons, and it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short)."
Mr Langstaff submits that in these circumstances the respondent should have been told precisely what he was suspected of doing.
Excessive detention?
"1.1 All persons in custody must be dealt with expeditiously, and released as soon as the need for detention has ceased to apply.
1.1A A custody officer is required to perform the functions specified in this code as soon as is practicable. A custody officer shall not be in breach of this code in the event of delay provided that the delay is justifiable and that every reasonable step is taken to prevent unnecessary delay. The custody record shall indicate where a delay has occurred and the reason why. [See Note 1H]."
Note 1H is in these terms:
"Paragraph 1.1A is intended to cover the kinds of delays which may occur in the processing of detained persons because, for example, a large number of suspects are brought into the police station simultaneously to be placed in custody, or interview rooms are all being used, or where there are difficulties in contacting an appropriate adult or interpreter."
"1C A person, including a parent or guardian, should not be an appropriate adult if he is suspected of involvement in the offence in question, is the victim, is a witness, is involved in the investigation or has received admissions prior to attending to act as the appropriate adult. If the parent of a juvenile is estranged from the juvenile, he should not be asked to act as the appropriate adult if the juvenile expressly and specifically objects to his presence."
"My intention was to ensure that I complied with PACE and to expedite Daniel's release from custody as soon as possible, but I first had to wait for an interview team to interview Daniel."
Mr Langstaff submits that in these circumstances it is clear that on Sergeant Davey's evidence the delay was caused, not by concern about whether the respondent' mother should be treated as an appropriate adult or by the need to wait for a solicitor, but by having to wait for an interview team to be assembled. Mr Langstaff correctly observes that, when the interview team had been assembled and was ready to start the interview, no delay was caused for want of an appropriate adult or for want of a solicitor. The note in the custody record for 21.10 records that the interview team was now in a position to interview the respondent, that they were all happy to have Mrs Taylor as an appropriate adult and that, no doubt as a result of his mother's advice, the respondent was happy to be interviewed without the presence of a solicitor.
"Any delay in processing Daniel was subject to the investigating/interviewing team attending for the purpose of the interview. My understanding was that they were currently busy processing/interviewing other detainees but they were aware that Daniel was their next priority."
Thus, on a fair view of Sergeant Davey's evidence as a whole, although he had been concerned in the two respects to which I have referred, he put any delay down to having to wait for an interview team. His evidence is to be contrasted with that of Inspector Lynch.
"I don't have that in my statement. I think I've the time in my statement that we started the interview, but effectively from the time I got there we were waiting for him to be interviewed. That is my recollection of it, not that he was waiting for us."
When he was pressed on the cause of the delay, especially in the light of the evidence of the custody sergeant and the contents of the custody record, he said that he did not recollect being the cause of any delay but that it was five years ago.
CONCLUSIONS
Lord Justice Sedley
The Vice-Chancellor