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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Al Fayed & Ors v Commissioner of Police of the Metropolis & Ors  EWCA Civ 1579 (25 November 2004)
Cite as:  EWCA Civ 1579
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MR JUSTICE CRESSWELL
HC 2001 No. 010X2465
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TUCKEY
MR JUSTICE JACKSON
| 1) MOHAMMED AL FAYED
2) JOHN MACNAMARA
3) PAUL HANDLEY-GREAVES
4) COLIN DALMAN
5) JOHN ALLEN
|- and -
|1) COMMISSIONER OF POLICE OF THE METROPOLIS
2) NIALL MULVIHILL
3) JEFFERY EDWARD REES
4) JAMES REEVE
5) RICHARD REYNOLDS
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 Stephen Miller QC, Mr Duncan Macleod and Miss Perrin Gibbons (instructed by The Solicitor for the Metropolitan Police) for the First, Second, Fourth and Fifth Respondents
Mr Simon Freeland QC and Matthew Holdcroft (instructed by Rowe Cohen) for the Third Respondent
Crown Copyright ©
Lord Justice Auld :
The main personalities in the case
• Mr Macnamara, the second appellant, who, from 1994 was the Director of Security of the Harrods' Holding company and from August 1996 the Director of Security and a member of the Board of Harrods;
• Mr Allen, the fifth appellant, who, from 1987 until February 1996 was the Senior Security Manager (uniform) of Harrods;
• Mr Mark Griffiths, who was at all material times the Private Secretary to Mr Al Fayed, who also had been arrested and treated in the same way as the appellants and had originally joined with them in the claim, but who did not pursue it before Cresswell J;
• Mr Dalman, the fourth appellant, who was at all material times the Manager of the Safe Depository located in the Harrods Department Store; and
• Mr Handley-Greaves, the third appellant, who was Mr Al Fayed's bodyguard;
• Mr Mulvihill, the second respondent, then a Commander in charge of the Organised Crime Group;
• Mr Rees, the third respondent, then a Detective Superintendent, who led and directed the investigation, but who did not himself arrest any of the appellants;
• Mr Taber, now deceased, then a Detective Inspector, who arrested Mr Macnamara;
• Mr Reynolds, the fifth respondent, then a Detective Sergeant, who arrested Mr Al Fayed, Mr Dalman and Mr Handley-Greaves;
• Mr Reeve, the fourth respondent, then a Detective Constable, who arrested Mr Allen and Mr Griffiths;
• Police Sergeant McErlane, who authorised the continued detention for interview of Mr Al Fayed and Mr Macnamara after their arrest; and
• Police Sergeant Parfitt, who authorised the continued detention for interview of Mr Allen, Mr Dalman, Mr Handley-Greaves after their arrest.
1) whether the arresting officer in each case, pursuant to section 24(6) of PACE, suspected and had reasonable grounds to suspect the appellant whom he arrested was guilty of theft of, and criminal damage to, some of the contents of Mr Rowland's safe deposit box;
2) if so, whether each officer acted reasonably in the Wednesbury sense in exercising his power of arrest under that provision; and
3) whether each of the custody officers acted lawfully, in particular in accordance with sections 37(2) and (3) of PACE, when authorising the appellant's continued detention at the police station for the purpose of interview.
Ground 1 – whether each officer suspected and had reasonable grounds to suspect each of the appellants of having committed an arrestable offence
"Where a constable has reasonable grounds for suspecting that an arrestable offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence."
In Castorina, Woolf LJ, as he then was, at 249, identified the three questions posed by that provision:
"1) Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact of the officer's state of mind.
2) Assuming the officer had the necessary suspicion, was there reasonable cause for that suspicion? This is a purely objective requirement to be determined by the Judge if necessary on facts found by a jury.
3) If the answer to the previous two questions is in the affirmative, then the officer has a discretion which entitled him to make an arrest and in relation to that discretion the question arises as to whether the discretion has been exercised in accordance with the principles laid down … in … Wednesbury …"
1) having regard, at paragraphs 18 to 20 of his judgment, to the distinction shown by the authorities of Hussein and also O'Hara v Chief Constable of the Royal Ulster Constabulary  AC 286 between reasonable grounds for suspicion and having evidence amounting to a prima facie case; and
2) on the factual basis, as he put it at paragraph 239 of his judgment, "of joint responsibility/joint enterprise", reminding himself for the purpose of the Judicial Studies Board's specimen direction on that concept for a judge directing a jury in a criminal case.
"… Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove'. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage. It is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrest before that were forbidden it could seriously hamper the police. …
Their Lordships have not found any English authority in which reasonable suspicion has been equated with prima facie proof. In Dumbell v Roberts  1 All ER 326, Scott LJ said, at p. 329:
'The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called upon before acting to have anything like a prima facie case for conviction;…'
There is another distinction between reasonable suspicion and prima facie proof. Prima facie proof consists of admissible evidence. Suspicion can take into account matters that could not be put in evidence at all. …. "
"40 … the word "facts" must not be given a restrictive meaning. It clearly includes information, as was the view of the European Court of Human Rights in Fox, Campbell and Hartley; and information can be information obtained from a third party … the decision in Hussein is instructive in that the Privy Council clearly took the view that the police were entitled to arrest both, even though only one of them could have been the driver.
41. In my view, there is nothing in principle which prevents opportunity from amounting to reasonable grounds for suspicion. Indeed in some circumstances opportunity may be sufficient to found a conviction. That would be the case where the prosecution can prove that no one else had the opportunity to commit the offence. The question in the present case is whether opportunity is sufficient to be reasonable grounds for suspecting six people when the likelihood is that it was only one or perhaps two of those six who were responsible. Again there can be nothing in principle wrong with arresting more than one person even if the crime can only have been committed one person: see Hussein. Where a small number of people can be clearly identified as the only ones capable of having committed the offence, I see no reason why that cannot afford reasonable grounds for suspecting each of them of having committed that offence, in the absence of any information which could or should enable the police to reduce the number further. …."
"As Lord Devlin pointed out in Hussein's case … in underlining the distinction between reasonable suspicion and prima facie proof, prima facie proof consists of admissible evidence. Suspicion can take into account matters that could not be put in evidence at all. Thus by way of example only, the arresting officers were entitled to have regard to the evidence (insofar as it concerned a particular claimant) as to the Schwarzschild safe deposit box. …."
"… that a reasonable man would have been of the opinion that, having regard to the information which was in the mind of the arresting officer, there were reasonable grounds for suspecting Mr ….to be guilty of theft and criminal damage jointly with others. I emphasise the distinction between reasonable suspicion and prima facie proof. Several of the matters referred to above were highly suspicious."
Ground 2 – whether each of the arresting officers' exercise of his power to arrest under section 24(6) of PACE was Wednesbury unreasonable
"Where for the purpose of assisting with an investigation a person attends voluntarily at a police station … 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"
"(a) The preferred operational strategy of the Metropolitan Police is to arrest a suspect and interview him at a police station.
(b) If a suspect is particularly vulnerable, such as a child or somebody who is mentally or physically unwell there may be sensible reasons for making alternative arrangements.
(c) A[n] interview at a police station gives the police a degree of control over the suspect[']s movement. Should an interview occur without arrest somewhere other than at a police station the interviewee could leave the interview whenever he wishes.
[I interpolate that, as Mr Rees also said in conference and in evidence, that to arrest at that point would leave the police open to criticism that they were arresting simply to persuade an interviewee to answer questions.]
(d) Although solicitors acting on Mr Al Fayed's behalf have indicated that he would provide fingerprints without the need for arrest there would be nothing to stop him changing his mind.
(e) An interview room at a police station has proper tape-recording facilities.
(f) It is intended to arrest others in connection with the enquiry who are not as prominent as Mr Al Fayed. It might be contended that they also be afforded the same privilege [sic];
(g) In a case such as this the police must be seen to be acting in an even-handed way. To do otherwise would create a precedent whereby prominent individuals could demand the same exceptional treatment; and
(h) I am told that arrangements are in place that will ensure Mr Al Fayed is not subjected to the 'media-circus' about which fears have been expressed."
"… the preferred operational strategy of the Metropolitan Police was a reference to the preferred police strategy to be adopted in the case. Further, it is admitted and averred it is normal police practice to arrest persons suspected of arrestable criminal offences at a police station."
"262. As to the allegation that the defendants took into account matters which they ought not to have taken into account, namely a fictitious 'preferred Metropolitan Police operational strategy' to arrest a suspect and interview him at a police station, rather than conducting an interview without arrest, I find that no such matter was taken into account. On 25 February 1998 Mr Rees asked Miss Hyams to obtain Treasury Counsel's opinion on [inter alia] the preferred operational strategy of the Metropolitan Police to arrest Mr Al Fayed and his colleagues at a police station. I find that the reference in the file note to 'the preferred operational strategy of the MPS' meant in context the preferred operational strategy of the MPS in the present case.
"263. As to the allegation that the defendants took into account matters which they ought not to have taken into account namely a 'normal' Metropolitan Police practice to arrest all those suspected of having committed an arrestable offence, save those who were infirm or vulnerable, without regard to the circumstances of the particular case, I find that each of the arresting officers (and Mr Rees) weighed all the circumstances of this particular case with care (including without limitation all the points made orally and in the extensive correspondence by Burton Copeland). Further legal advice was sought from the Metropolitan Police Solicitor's Department and from Senior Treasury Counsel. Mr Pownall was asked to advise as to whether Mr Rees should exercise his discretion in favour of arrest or in favour of what was proposed by Mr Burton. The arresting officers did not say 'I always arrest when I have reasonable grounds for suspecting a person to be guilty of an arrestable offence' (see Neilson v Attorney General  3 NZLR 433, at 441, Richardson P). The many points made by Mr Burton were weighed by the … team with DI Taber acting as devil's advocate. The arresting officers were entitled to take into account a concern that if the claimants were not arrested and walked out in the course of an interview, any attempt to arrest them at that stage would or might be questionable or open to the subject of challenge. …
266. The discretion was exercised in accordance with Wednesbury principles. The decisions in each case to arrest were not perverse. The arresting officers exercised their discretion in each case. They did not fail to take account of the relevant. They did not take account of the irrelevant."
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;"
"So, applying Wednesbury principles, the question of law to be decided by your Lordships may be identified as this: 'Was it a matter Detective Constable Offin should have excluded from his consideration as irrelevant to the exercise of his statutory power of arrest, that there was a greater likelihood (as he believed) that Mrs Holgate-Mohammed would respond truthfully to questions about her connection with or knowledge of the burglary, if she were questioned under arrest at the police station, than if, without arresting her, questions were put to her by Detective Constable Offin at his own home from which she could peremptorily order him to depart at any moment …"
1) In determining all Castorina questions the state of mind is that of the arresting officer, subjective as to the first question, the fact of his suspicion, and objective as to the second and third questions, whether he had reasonable grounds for it and whether he exercised his discretionary power of arrest Wednesbury reasonably.
2) It is for the police to establish the first two Castorina requirements, namely that an arresting officer suspected that the claimant had committed an arrestable offence and that he had reasonable grounds for his submission – Holgate Mohammed, per Lord Diplock at 441F-H, and Plange, per Parker LJ.
3) If the police establish those requirements, the arrest is lawful unless the claimant can establish on Wednesbury principles that the arresting officer's exercise or non-exercise of his power of arrest was unreasonable, the third Castorina question –Holgate-Mohammed, per Lord Diplock at 446A-D; Plange, per Parker LJ; and Cumming, per Latham LJ at para. 26.
4) The requirement of Wednesbury reasonableness, given the burden on the claimant to establish that the arresting officer's exercise or non-exercise of discretion to arrest him was unlawful, may, depending on the circumstances of each case, be modified where appropriate by the human rights jurisprudence to some of which I have referred, so as to narrow, where appropriate, the traditionally generous ambit of Wednesbury discretion - Cumming, per Latham LJ at para 26. It is not, as a norm, to be equated with necessity; neither Article 5 nor section 24(6) so provide. The extent, if at all, of that narrowing of the ambit or lightening of the burden on the claimant will depend on the nature of the human right in play – in this context one of the most fundamental, the Article 5 right to liberty. In my view, it will also depend on how substantial an interference with that right, in all or any of the senses mentioned in paragraph 82 above, an arrest in any particular circumstances constitutes. The more substantial the interference, the narrower the otherwise generous Wednesbury ambit of reasonableness becomes. See the principles laid down by the House of Lords in R v. SSHD, ex p Bugdaycay  AC 514, and in R v SSHD, ex p Brind  1 AC 696, see e.g. per Lord Bridge of Harwich, at 748F-747B. Latham LJ had also to consider this aspect in Cumming, where, following Lord Diplock in Mohammed-Holgate, at 444G-445C, he said at paragraphs 43 and 44:
"43. … it seems to me that it is necessary to bear in mind that the right to liberty under Article 5 was engaged and that any decision to arrest had to take into account the importance of this right even though the Human Rights Act was not in force at the time. … The court must consider with care whether or not the decision to arrest was one which no police officer, applying his mind to the matter could reasonably take bearing in mind the effect on the appellants' right to liberty. …
44. … It has to be remembered that the protection provided by Article 5 is against arbitrary arrest. The European Court of Human Rights in Fox, Campbell and Hartley held that the protection required by the article was met by the requirement that there must be 'reasonable grounds' for the arrest. I to not therefore consider that Article 5 required the court to evaluate the exercise of discretion in any different way from the exercise of any other executive discretion, although it must do so … in the light of the important right to liberty which was at stake."
5) It is a legitimate, but not on that account necessarily Wednesbury reasonable use of the power, to arrest in order to interview and/or to seek further evidence – section 37(2) and, Holgate-Mohammed, per Lord Diplock at 445E-G.
6) It may be Wednesbury reasonable to use the section 24(6) power of arrest as a means of exercising some control over a suspect with a view to securing a confession or other information where there is a need to bring matters to a head speedily, for example to preserve evidence or to prevent the further commission of crime - see e.g. Cumming, per Latham LJ at para 44.
Ground 3 – the lawfulness of the use of the power under section 37 of PACE to detain the appellants following their arrest
"… has reasonable grounds for believing that his detention without being charged is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him …"
Section 37(3) provides:
"If the custody officer has reasonable grounds for so believing, he may authorise the person arrested to be kept in police detention."
These provisions implement recommendations of the Phillips Commission, in paragraphs 3.75 – 3.79 of its Report. Despite the use of the permissive word "may" in section 37(3), there does not appear to be much room for a custody officer's exercise of discretion if he has reasonable grounds for believing that continued detention without charge is necessary for one or more of the reasons set out in section 37(2). The use of the word "may" in that context may have a confining effect rather than imposing or bestowing upon a custody officer a further discretion after he has passed the necessity threshold. That is, it may simply confine the custody officer's power as to the manner of its exercise, namely to authorise continued detention by the police. A genuine and bona fide belief in the necessity of continued detention on the part of the custody officer is not enough. Consistently with Article 5(1)(c) of the Convention, the test is an objective one, namely whether he had reasonable grounds for such belief; see Murray v United Kingdom (1994) 19 EHRR 193, para 50, and Fox, Campbell and Harltey v United Kingdom (1991) 13 EHRR157, at paras 31-32.
"… Given the information provided by the arresting officer (and the absence of any representation to the contrary by the solicitor for the claimant concerned) I find that this decision of the custody officer in each case was reasonable. It was certainly not unreasonable, in the sense that no custody officer applying his common sense to information before him, could reasonably have reached that decision."
In so concluding, the Judge had clearly in mind the decision of this Court in Wilding v Chief Constable of Lancashire (CA, unreported 22 May 1995) to which he had referred at the beginning of this section of his judgment, and to which I shall return.
"Following a decision to arrest a suspect, they [sic] must not be interviewed about the relevant offence except at a police station or other authorised place of detention …"
Mr Croxford said that that provision was irrelevant to the issue whether the appellant should be detained at the police station for interview, since it simply provided for the venue of an interview once a person is under arrest. The second claimed irrelevant matter was their reference in their evidence to the absence of any challenge from the appellants or their solicitor to the continued detention at the time. Mr Croxford said that, challenge or no, the custody officer's duty under section 37(2) and (3) was to consider whether continued detention was necessary for any of the purposes specified in that provision.
"… should ask itself the question ... whether the decision of the custody sergeant was unreasonable in the sense that no custody officer, acquainted with the ordinary use of language and applying his common sense to the competing considerations before him, could reasonably have reached that decision. Applying that test in this case, I bear in mind that what was being suggested was a comparatively short period of detention, so that the officers, having checked with … the complainant … whether or not there had been, for example, one telephone call about money or whether the appellant did in fact owe him any money, might then continue the interview, or restart the interview, for the purpose they had contended they had, which was obtaining evidence relating to the offence by questioning her.
Looking at the matter from that standpoint, it seems to me that the custody officer could reasonably, in the circumstances of this case, have come to the conclusion that he had reasonable grounds for believing that the detention of the appellant without being charged was necessary within the meaning of the section. …"
"where statutory provisions which provide rights to police constables to interfere with the liberty of the subject are concerned, those provisions ought to be construed strictly against those purporting to exercise those rights."
Lord Justice Tuckey:
Mr Justice Jackson:
1: Appeal dismissed
2: Appellants to pay respondents' costs to be paid on an indemnity basis
3: All respondents to receive interest on costs awarded and paid at judgment rate until payment.
4: Interim payment on account of costs in the sum of £40,000 to be paid within 14 days in respect of First, Second, Fourth and Fifth Defendants.
5: Leave to appeal to the House of Lords refused