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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 >> Zenati v Police of the Metropolis & Anor  EWCA Civ 80 (11 February 2015)
Cite as:  QB 758,  WLR(D) 74,  4 All ER 735,  EWCA Civ 80,  2 WLR 1563
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ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
His Honour Judge Mitchell
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEWISON
LORD JUSTICE McCOMBE
| Mr Sofian Zenati
|- and -
|The Commissioner of Police of the Metropolis
The Crown Prosecution Service
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Jeremy Johnson QC (instructed by Weightmans Llp) for the 1st Respondent and
Mr Matthew Donmall (instructed by the Treasury Solicitor) for the 2nd Respondent
Hearing date: 13th January, 2015
Crown Copyright ©
Master of the Rolls:
Summary of the facts
THE ARTICLE 5 CLAIMS
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(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;
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."
The Article 5(1)(c) claim
"Second, the condition that there be no arbitrariness demands that both the order to detain and the execution of the detention genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5(1)…Where, for example, detention is sought to be justified by reference to Article 5(1)(c) in order to bring a person before the competent legal authority on reasonable suspicion of having committed an offence, the Court has insisted upon the need for the authorities to furnish some facts or information which would satisfy an objective observer that the person concerned may have committed the offence in question."
Conclusion on the article 5(1)(c) claim
Article 5(3) claim
"It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the circumstances arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his applications for release and his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5(3).
The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention, but, after a certain lapse of time, it no longer suffices; the Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were "relevant" and "sufficient", the Court must also ascertain whether the competent national authorities displayed "special diligence" in the conduct of the proceedings."
"….the authors of the Convention reinforced the individual's protection against arbitrary deprivation of his or her liberty by guaranteeing a corpus of substantive rights which are intended to minimise the risks of arbitrariness by allowing the act of deprivation of liberty to be amenable to independent judicial scrutiny and by securing the accountability of the authorities for that act. The requirements of Article 5(3) and (4) with their emphasis on promptitude and judicial control assume particular importance in this context….What is at stake is both the protection of the physical liberty of individuals as well as their personal security in a context which, in the absence of safeguards, could result in a subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection."
"It remains to see whether in this case the Austrian judicial authorities displayed the special diligence which the Convention requires in the case of a detained person."
"The exceptional length of the investigation and of the trial are justified by the exceptional complexity of the case and by further unavoidable reasons for delay. It should not be overlooked that, while an accused person in detention is entitled to have his case given priority and conducted with particular expedition, this must not stand in the way of the efforts of the judges to clarify fully the facts in issue, to give both the defence and the prosecution all facilities for putting forward their evidence and stating their cases and to pronounce judgment only after careful reflection on whether the offences were in fact committed and on the sentence."
"The Court fully appreciates that the right of an accused in detention to have his case examined with particular expedition must not unduly hinder the efforts of the courts to carry out their tasks with proper care. The evidence shows, nevertheless, that in this case the French courts did not act with the necessary promptness. Moreover, the principal public prosecutor at the Court of Cassation acknowledged this in his opinion of 5 June 1991 before the Compensation Board: the investigation "could have been considerably shortened without the various delays noted", in particular from November 1983 to January 1985 and from May 1986 to April 1988 (see paragraph 41 above). Accordingly, the length of the contested detention would not appear to be essentially attributable either to the complexity of the case or to the applicant's conduct."
"In sum, domestic courts are under an obligation to review the continued detention of persons pending trial with a view to ensuring release when circumstances no longer justify continued deprivation of liberty. For at least an initial period, the existence of reasonable suspicion may justify detention but there comes a time when this is no longer enough. As the question whether or not a period of detention is reasonable cannot be assessed in the abstract but must be assessed in each case according to its special features, there is no fixed time frame applicable to each case."
"As a result, the [court's] decision was based on medical information which did not necessarily reflect the applicant's condition at the time of the decision. Such delay between clinical examination and preparation of a medical report is in itself capable of running counter to the principle underlying Article 5 of the Convention, namely the protection of individuals against arbitrariness as regards any measure depriving them of their liberty."
Conclusion on the article 5(3) claim
FALSE IMPRISONMENT CLAIM
"The distinction between false imprisonment and malicious prosecution is well illustrated by the case where, parties being before a magistrate, the one makes a charge against another, whereupon the magistrate orders the person charged to be taken into custody and detained until the matter can be investigated. The party making the charge is not liable to an action for false imprisonment, because he does not set a ministerial officer in motion, but a judicial officer. The opinion and judgment of a judicial officer are interposed between the charge and the imprisonment. There is, therefore, at once a line drawn between the end of the imprisonment by the ministerial officer and the commencement of the proceedings before the judicial officer."
Lord Justice Lewison:
Lord Justice McCombe: