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Cite as: [2018] EWHC 1026 (QB)

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Neutral Citation Number: [2018] EWHC 1026 (QB)
Case No: C11YM156 (122/2017)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Liverpool District Registry

Liverpool Civil and Family Court
Vernon Street
LIVERPOOL
L2 2BX
03/05/2018

B e f o r e :

MR JUSTICE MARTIN SPENCER
____________________

Between:
Stuart Holmes
Claimant
- and -

Chief Constable of Merseyside Police
Defendant

____________________

Mr Graham Platford for the Claimant/Appellant
Mr Graham Wells (instructed by The Legal Services Department Merseyside Police)
for the Defendant/Respondent

Hearing date: 20 March 2018

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

    Mr Justice Martin Spencer:

    Introduction

  1. By his Notice of Appeal dated 16 November 2017, the Claimant sought permission to appeal the order of Mr Recorder Eccles dated 25 October 2017 whereby the Learned Recorder granted the Defendant summary judgment pursuant to the provisions of CPR part 24. By her order dated 16 February 2018, Yip J ordered that the application for permission to appeal be listed for an oral hearing with the appeal to follow should permission be granted and the matter accordingly came before me on 20 March 2018.
  2. Rather than deal with the application for permission to appeal separately, I allowed the parties to argue the matter as though permission had been granted. Having heard the arguments of the parties, it is clear to me that the appeal is plainly arguable and therefore it is appropriate that the Claimant should have permission to appeal and permission is accordingly granted. The rest of this judgment deals with the substantive appeal itself.
  3. The facts

  4. The facts of the matter are not seriously in dispute in relation to any relevant question. They arise out of the Labour Party Conference held at the Echo Arena in the Albert Dock in Liverpool between 2530 September 2011. The Claimant, Mr Holmes, is an inveterate campaigner against nuclear power among other things and he has regularly attended party conferences and other events over the years in order to express his views peacefully and engage in discussion of significant issues and listen to relevant speakers. On 26 September 2011 he attended on a footbridge some 200m from the main entrance to the Echo Arena Conference Centre, holding a laminated poster that read "Nukiller power a crime against God". He was standing with other protesters who also held banners relating to other issues.
  5. The Echo Arena is in fact on private land owned by a body apparently called Homes and Communities Agency (HCA) Landowner. In advance of the conference, HCA issued a notice as follows:
  6. "LABOUR PARTY CONFERENCE
    NOTICE TO MERSEYSIDE POLICE
    1. Notice is hereby given to the Merseyside Police for and on behalf of Homes and Communities Agency (HCA) Landowner hereafter known as "The Company" in connection with the holding of the Labour Party Conference at the Arena & Conference Centre at Liverpool (ACCL) on 25 29 September 2011, inclusive.
    2. The Company is the owner of the land shown delineated blue/green on the attached plan.
    3. The Company allows access onto the said land by persons for the purpose of access to premises and facilities situated on the land and for quiet enjoyment and would not give express or implied consent for any persons to enter the land for non-peaceful purposes and in particular in order to conduct any protest or demonstration. Consequently, The Company considers that any persons who are on the land, and who are conducting any protest or demonstration, to be trespassing and in particular, if those persons act in any intimidating manner, or cause any obstruction, or intend or attempt to disrupt any peaceful or lawful activity of others on the land.
    Signed J A Sloan (for and on behalf of The Company) (Kings Waterfront Estates Site Facilities Manager).
    Dated 18 September 2011."

    A similar notice had been issued to the Merseyside Police by a company called Gower Street Estates Limited on 2 August 2011 in relation to other land delineated in red on a plan attached to that notice. Yet a further similar notice had been issued to Merseyside Police on 2 August 2011 by an organisation called Arena Convention Centre Liverpool.

  7. The circumstances in which these notices were issued, and what exchanges there had been between the companies in question and the Merseyside Police before or subsequently to the issue of these notices, are not revealed. However, a piece of public land was designated as a "protest site" and it seems clear that officers of the Merseyside Police wished the Claimant to conduct his protest from the designated site rather than from the location where the Claimant wished to stand, which was more proximate to those entering and leaving the building for the purposes of the conference.
  8. At about 8.30am on 26 September 2011, a community police officer pointed out to the Claimant the designated protest site but said that he was not going to move the Claimant. That officer walked away and the Claimant stayed where he was.
  9. Approximately 10 minutes later, the Claimant moved a distance of some 15m to a yellow gate structure on the footbridge and joined others who were displaying banners and distributing leaflets.
  10. Approximately 5 minutes later two police officers walked from behind the Claimant and one made a radio call. This was followed by the Claimant being surrounded by some 4-5 police officers and a Police Sergeant Drennan asked the Claimant for his name, which the Claimant provided. PS Drennan then informed the Claimant there was a designated protest site on public land and that he was protesting on private land. He asked the Claimant to continue his protest at the designated site. The Claimant refused, citing Article 10 of the European Convention on Human Rights ("ECHR"). According to the Defence, PS Drennan asked the Claimant to leave the land and told the Claimant that if he did not do so he would be committing an offence and would be arrested and if he returned to the land within 3 months he would commit an offence. It is also pleaded in the Defence that PS Drennan "warned the Claimant under Section 69 of the Criminal Justice and Public Order Act", asked the Claimant to go to the designated site and another officer, PC Mackey said that he would escort the Claimant to the designated site so that he would know exactly where it was. According to the Defence the Claimant began to shout, "I'm not going you'll have to arrest me."
  11. PC Mackey then took the Claimant's right arm, PS Drennan took his left and they escorted the Claimant off the private land, down Gower Street to the designated protest area on some cobbles at Salthouse Quay. All the time, the Claimant was complaining loudly that his Article 10 rights were being infringed and that he was being assaulted and he attempted to push back against the officers.
  12. When they reached the designated protest site, PC Mackey told the Claimant that he could continue his protest there but that if he were to re-enter the conference site, he would be arrested. The Claimant pushed past PC Mackey and went some 5m back onto the private land. PC Mackey stopped him and again returned him to the designated site again warning him not to enter private land.
  13. Yet again, the Claimant ran past PC Mackey onto the private land and PC Mackey stopped him and tried to return him to the designated site. The Claimant ran onto the private land shouting "This is a breach of Article 10 of the Human Rights Act and these officers are the offenders". At that point, it now being 08.45, PC Mackey arrested the Claimant for the offence of obstructing an officer in the execution of his duty and the Claimant was placed into the rear of a police carrier.
  14. Some 5 minutes later, PC Mackey further arrested the Claimant for breach of the peace and for aggravated trespass contrary to Section 68 of the Criminal Justice and Public Order Act 1994. It is pleaded in the Defence that these further arrests were "because PC Mackey believed that if the Claimant were to try to enter the site again he would disrupt or attempt to prevent the conference or intimidate delegates or members of the public." However, it is not at all clear to me what basis PC Mackey may have had for such belief. Until the police intervened and removed the Claimant to the designated protest site, it would appear he had been simply standing holding his protest placard.
  15. The Claimant was detained at St Anne's police station for a period of 15 or 16 hours. At 00.42 on 27 September 2011, he was released on bail with a condition "not to enter the Albert Dock area surrounding the Echo Arena Liverpool until Friday 30 September 2011". He was told to re-attend the police station on 30 September to see whether the Crown Prosecution Service had decided to charge him.
  16. On 27 September 2011, at about 12:05 hours the Claimant made his way towards Tate Liverpool (which is in the public area of the Albert Dock) in order to attend a fringe meeting about town planning. Earlier, at about 08:30 hours, the Claimant had been seen on CCTV approaching the Albert Dock and an officer had been sent to speak to him but by the time the officer got there, the Claimant had left the area. The Claimant's description was circulated to all patrols just after mid-day and two officers were tasked with observing the Claimant when he entered the Albert Dock area. At 12.09, PC Kirsopp stopped the Claimant and asked him where he was going. The Claimant said he was going to a fringe meeting at the Tate. The "Silver Commander", Chief Superintendent Armitt, was informed and authorised the Claimant's arrest. PC Kirsopp cautioned the Claimant and told him he was under arrest on suspicion of being in breach of his bail conditions.
  17. The Silver Commander then re-considered the bail conditions and having concluded that they might not cover the area in which the Tate was situated after all and that the circumstances indicated that the Claimant was intending to attend a meeting at the Tate, he ordered PC Kirsopp to "de-arrest" the Claimant, which was done.
  18. Finally, on 28 September 2011, the Claimant was again arrested. At 13.00 hours he was walking along Gower Street to return to the Albert Dock area when he was approached by Police Sergeant Hoey together with two police constables and was asked if he was aware of his bail conditions. The Claimant said that he was aware and produced a copy of the Bail Notice. PS Hoey asserted that the Claimant was within the Albert Dock within sight of the Arena and therefore was in breach of his bail condition. The Claimant remonstrated with PS Hoey asserting again breach of Article 10 ECHR and that the police were victimising him and at 13.15 hours the Claimant was arrested purportedly for breaching his bail conditions and obstructing a police officer in the execution of his duty. The Claimant was taken to St Anne's police station and detained until approximately 17:00 hours.
  19. In the course of his detention, the Claimant was informed that the CPS had decided not to charge him in relation to the alleged breach of bail conditions but he was charged with obstructing an officer in the execution of his duty. On 9 November 2011, the CPS decided to discontinue the obstruction charge against the Claimant on the basis that it was not in the public interest to prosecute him and the result is that, despite his arrests, the Claimant had never been charged with any criminal offence arising out of the events of 27-29 September 2011.
  20. These Proceedings

  21. The Claimant brings these proceedings for false imprisonment. He alleges that his arrest and subsequent detention were unlawful in that:
  22. "there were no grounds on which the said officers could have reasonably suspected that the Claimant had committed the offences for which he was arrested or other lawful authority for his arrest and/or there were no grounds on which the relevant officers could have reasonably have believed his arrest was necessary for one of the reasons set out in Section 24 (5) of the Police and Criminal Evidence Act 1984."

    Although the principal cause of action is for false arrest, aggravated damages are claimed by reference to the interference with the Claimant's right protected under Article 10 and Article 11 ECHR. In response, the Defendant asserts that the arrests were lawful because PC Mackey had reasonable grounds to suspect and did so suspect that the offence of obstructing a constable in the execution of his duty had been committed by the Claimant. Similarly the Defendant pleads reasonable suspicion of breach of the peace and aggravated trespass. It is pleaded:

    "7 c) iv) in each case PC Mackey had reasonable grounds to believe and did so believe that the Claimant's arrest was necessary: -
    (1) For the prompt and effective investigation of the offences or the conduct of the Claimant and
    (2) To prevent the Claimant from committing an offence against public decency namely shouting so loudly that he was spitting involuntarily and causing alarm because members of the public going about their normal business could not reasonably be expected to avoid the Claimant."
    In addition, the Defendant avers that the detention of the Claimant was for no longer than was reasonably necessary and similarly defends the further arrests on 27 September and 28 September 2011.
  23. Although the Claimant had the benefit of legal assistance at the time that his claim was pleaded, it would appear that his Legal Aid Certificate was withdrawn and when the time came for exchange of witness statements, he was representing himself. There are three documents served by the Claimant which purport to stand as his witness statements but these are somewhat unfocused and introduce matters which appear to go beyond the parameters of the litigation. Their date is uncertain: although the documents in the appeal bundle contain the date 16 October 2017, they were clearly prepared and served earlier than that because they form the basis of Part 18 requests served in September 2017. In the first of the witness statements, the Claimant simply repeats much of what is contained in the Particulars of Claim. In the second, he repeats that his removal from the private land to the designated protest area was an unlawful assault but he expands his allegations to encompass the positive obligation to protect the rights protected by Article 10 ECHR. He also says that he was singled out probably as a result of incorrect intelligence regarding the then Deputy Prime Minister (Nick Clegg) regarding an incident the previous year. In the third witness statement, the Claimant again contends that the police committed an unlawful act (assault) when he was removed by force from the private ground to the designated protest area. He says consequently all further police activity was also unlawful.
  24. For the Defendant, witness statements were served by some ten police officers and the Claimant indicated that he only required three of them to give evidence, and even in respect of those three (including PC Mackey) he did not contest what was contained in the statements but wanted them to attend so that he could cross-examine them about other matters.
  25. In September 2017, the Defendant served on the Claimant a request for further information pursuant to Part 18 CPR purportedly in an attempt to narrow down the issues. Thus, having cited parts of the witness statements, the first question asked was:
  26. "Is it now your case that if your initial removal on 26 September 2011 was in breach of your rights under Article 10 of the European Convention on Human Rights that everything that followed was unlawful but if your initial removal on 26 September 2011 was not in breach of your rights under Article 10 then everything that followed was lawful?"

    To this the Claimant responded:

    "Hypothetical question! It has always been my case that my initial removal was in breach of Article 10 ECHR, it was also criminal assault. I was removed by force I was not arrested."

    Question 3 asked whether the Claimant agreed all the Defendant witnesses except the three indicated to which the Claimant responded:

    "I mostly agree with all the statements, they're basically the same as my witness statement and Particulars of Claim. But Mackey, Ditchfield and McHugh are key witnesses, they actually saw what happened and attended Operation Escudo and can possibly shed light on the underlying evidence as set out in David Caleb's letter to the IPCC (Independent Police Complaints Commission) dated 21 October 2013 but I can agree Kirsopp, Astbury and Murray."
  27. In the latter answer, the Claimant was referring to a letter dated 21 October 2013 to the Independent Police Complaints Commission apparently in relation to an appeal against a decision by the IPCC, presumably not to discipline the officers in question. The letter states:
  28. "Our client has no convictions for violence against persons or damage to property.
    Accordingly we're limiting the appeal to the following: -
    1) It has now been made palpably clear from the response contained in the letter of 12 September 2013 that our client was singled out and, frankly, discriminated against by being required to leave an area at the same time as a considerable number of others who were also protesting about different matters were permitted to remain. It is also quite clear that this arose from, as a result of Operation 'Escudo' and it is submitted that the basis for this, given our client's background, was entirely misconceived."

    The letter also stated that the arrest on 26 September 2011 had been unwarranted and had not led to any charges. It said:

    "This will be a matter for Civil Court in due course. However, it is again inappropriate that our client's arrest was due to his aggressive behaviour when all he was doing was to draw to the attention of people that he was being dealt with in breach of Article 10 of the European Convention of Human Rights."
  29. Returning to the Part 18 request for information, the questions and answers were as follows:
  30.   Question Answer
    Question
    4
    Is it now your case that you accept and agree that there was a designated area provided for lobbyists who had attended the Conference? If not, what is your case on this matter? There was an area designated for demonstrations but this was to provide safety for large demonstrations 8,000 demonstrators a few days prior etc. potential public order situations? I was made aware of the location by the community police officer shortly after I arrived. See my witness statement of 2011. Also I believe there is a distinction between mass protest and my one to one approach.
    Question
    5
    Is it now your case that you accept and agree that the designated area was on public land? If not, what is your case on this matter? It was not a thought at the time because the whole area has public access and it is not obvious what is public and not public; however the area around the conference centre had been fenced off for the conference. Also your question does not seem relevant for the reason in Q.4.
    Question
    6
    Is it now your case that you personally considered that the area was unsuitable for that purpose? If not, what is your case on this matter? No it was suitable for large demonstrations but I was alone not part of a large demonstration and over many years I am used to conversational approaches. See also answer to Q.10.
    Question
    7
    Is it now your case that you refused to go to the designated area because you personally considered that it was unsuitable for that purpose? If not, what is your case on this matter? No it was suitable for large demonstrations but I was alone not part of a large demonstration. It was not suitable for my purpose. See answer to Q.10.

    The application for summary judgment

  31. On 6 October 2017, the Defendant made the application for summary judgment under Part 24 in relation to the whole of the claim on the basis that the Claimant had no real prospect of succeeding on the claim. This application was supported by a witness statement from Caroline Ashcroft, a solicitor within the Merseyside Police, who, after setting out the background and a synopsis of the facts, stated as follows:
  32. "13 What the documents provided by the Claimant seemed to show was that the essence of his case was that his rights of freedom of expression under Article 10 of the European Convention on Human Rights had been breached and that everything stemmed from that. It appeared, therefore, that there was a single question for determination, that being whether the Claimant's Article 10 rights had been breached. The purpose of the questions was to confirm this and to elicit from the Claimant exactly how he was putting his claim.
    14 The answers seemed to confirm that the Claimant's case is that his initial removal was in breach of Article 10 and that all flows from that fact.
    15 The answers seem to accept that there was an area for demonstrations of which the Claimant was aware. But he considered the areas unsuitable for his purposes. He does not accept that the private proprietors of the land could have prevented him from protesting there as he wanted to. He states that the area has public access.
    16 The evidence makes it clear that the land was private land and that the landowners had excluded from their land those who wished to protest.
    17 The fact that the Claimant did not like the provisions that had been made for him, and others, to exercise their Article 10 rights while preserving the rights of the private landowner does not give him cause of action. He was able to exercise those rights but not in the way that he wanted to. Accordingly he has no claim arising out of a denial of his Article 10 rights."

    Thus, Miss Ashcroft was portraying the claim by the Claimant as fundamentally a claim for breach of the Claimant's Article 10 rights, a claim which is not sustainable.

    The Decision of Mr Recorder Eccles

  33. The hearing of the Defendant's Application for Summary Judgment came before Mr Recorder Eccles on 25 October 2017. At that hearing, the Claimant appeared in person and the Defendant was represented by Mr Graham Wells. It would seem that, in the course of that hearing, the Recorder and Mr Wells tried to "pin the Claimant down" as to what his case was really about. This is illustrated by paragraphs 9 and 10 of the Learned Recorder's judgment where he explains how the Claimant eventually apparently distilled his case to one of conspiracy together with breach of Article 10 ECHR. The Learned Recorder said:
  34. "9 He then indicated that he felt and believed and it was his case that he had been discriminated against during 2011, he had been singled out by the police as a potential troublemaker, so to speak, and they had targeted him completely wrongly, and effectively his arrest on all three occasions was part of a discriminatory plot against him. I suggested to Mr Holmes that he was alleging in a common sense and a lay sort of way that he was a victim of a conspiracy to have him arrested and to have him detained and to prevent him exercising his ordinary rights. He indicated and clearly and firmly indicated to me that such was his case, and I record that later during the hearing Mr Wells had a note to that effect and showed it to the Claimant in which the claimant, Mr Holmes, agreed that such was in fact at the heart and the essence of his claim.
    10. He also indicated that the fact of this plot could be seen because there had been police planning in relation to the Labour Party conference and that planning known as Operation Escudo included him as a target, so to speak. He then agreed with me that contention and that basis of putting the case of him as the victim of a conspiracy to target him and to discriminate against him was not set out in his Particulars of Claim. As I say, he accepted that observation but indicated that such conspiracy only emerged when witness statements had been later disclosed during the course of the present action, and particularly when a witness statement from Assistant Chief Constable Ahmet had been disclosed by the Defendant."
    The Recorder, having noted that the Claimant did not resile from his agreement in relation to the Defence witness statements and having referred to the letter of 21 October 2013 (see paragraph 22 above), then continued:
    "12. I asked Mr Holmes to give me more specific details as regards each of the essential points made above. As regards his allegation that the original arrest was wrongful, he argues that Article 10 of the European Convention on Human Rights grants the right of freedom of expression (which I accept) and he submits that includes a right to protest and to express and hold a wide range of opinions without fear or favour. He complained that the designated protesting area (for want of a better phrase), the area where those who wished to go and demonstrate in any form could go, was not fit for purpose because it was an area that could be avoided by those entering the conference centre. He also drew to my attention to a case reported in the Guardian newspaper, which concerned a homosexual couple who were refused admission to a hotel because they were in fact gay. Thus he contends that the use of this particular designated protest area infringed Article 10, whereby his subsequent arrest for wanting to protest somewhere else was unlawful because in fact it constituted an infringement of his Article 10 rights."
  35. Those remarks by the Learned Recorder followed three matters, described by the Recorder as "facts" but which lie at the heart of his decision to grant summary judgment to the Defendant. These appear at paragraphs 6, 7 and 8 of the judgment. He states:
  36. "6. First, the defendant, through his counsel, Mr Wells, has put certain questions to the claimant to try and ascertain precisely how he, the claimant, puts his case. I have read those questions and I have read the answers, and the fundamental interpretation and the obvious reading of the answers is that the real gravamen of the claimant's case is that his original arrest was in breach of Article 10. His original arrest was wrongful because he was not being permitted to exercise his rights to protest, demonstrate, lobby, and that was because the designated lobbying area failed to comply with Article 10. But most importantly, he indicates that in essence everything flows from that original arrest and seems to substantially limit the extent to which the subsequent matters are pertinent."
  37. The second matter relied upon by the Learned Recorder was that the Claimant was not challenging witness statements which "taken at face value would explain and justify the fact of detention and its duration." Finally, the Defendant had served witness statements (not challenged) which explained the subsequent arrests on 27 and 28 September 2011 leading to submissions from Mr Wells that "the officers' motives and motivation and the factual basis upon which the officers acted has to be accepted, whereby the arrests are inevitably lawful."
  38. The Learned Recorder first dealt with the subsidiary claims, namely the length of the 15 hour detention and the "bail arrests". By reference to the Defendant's witness statements, he found that there was "a full and clear body of evidence from the Defendant which explains and justifies the duration of the detention" whereby it seemed to him that the claim in that regard was bound to fail. Equally, in relation to the bail arrests, the statements relied upon by the Defendant deal with why the decisions to arrest were made and why it was believed that arrest was appropriate and, those statements having been agreed, the Learned Recorder found that they were bound to be accepted by any reasonable judge or any reasonable jury and that there is no sensible prospect of the claim succeeding.
  39. The Learned Recorder then dealt with the matter which he described as the "key issue", namely the original arrest. The Learned Recorder referred to the fact that, as he found it, the manner in which the Claimant wished to use the land was against the owners' desires, this being a reference to the notices referred to in paragraph 4 above. He stated that the police were aware of that (inevitably, as the notices were directed towards the police) and they designated an area for the purposes of public demonstration and public protest, being important elements of political party conferences. The Learned Recorder then considered the issue of the extent to which the State has an obligation to provide areas of demonstration in contexts such as political conferences and the like so as to facilitate the Article 10 right of freedom of expression. He referred to the decision of the European Court of Human Rights in Appleby v UK (44306/98). In that case, the ECtHR rejected the contention that Article 10 requires "the automatic creation of rights of entry to private property or even, necessarily, to all publicly owned property." They stated:
  40. "Where however the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed, the Court would not exclude that a positive obligation could arise for the State to protect the enjoyment of Convention rights by regulating property rights."

    The Learned Recorder interpreted this decision as meaning that the State cannot force a private person to permit demonstrations or protests or lobbying to take place on that person's land. He then went on to say:

    "21. In the circumstances, therefore, where a proper area had been set aside for such activity and the police sought to move any demonstrator or protestor to that area, if that protester then sought to return to the private property to continue his or her protest, such would in my judgment constitute a breach of sections 68 and 69 of the Criminal Justice and Public Order Act 1994, and the police would be entitled to arrest. That is what happened in this case. It seems to me and in my judgment Appleby is wholly determinative of this matter."

    He rejected any argument by the Claimant that the site was not fit for purpose and he found no analogy with the case where a gay couple had been refused admission to a hotel. The Learned Recorder found the argument and analogy to be "wholly misconceived" and he therefore struck out the claim.

  41. Finally, the Learned Recorder stated this:
  42. "Before I conclude this judgment, I go back to something I mentioned quite early on in the judgment, and that relates to how the claimant, Mr Holmes, fundamentally seeks to put this case. Although he resiled or appeared to resile from some points when he first made submissions he quite clearly accepted, as I have already indicated, that he sought to argue that he was the subject of a conspiracy in which he was being discriminated against because he was being targeted by the police. That is something that is not pleaded, and when Mr Holmes seeks to argue that it is not pleaded because he was not aware of that contention until the statement of Assistant Chief Constable Ahmet, that contention is, with the greatest respect to Mr Holmes, untrue. The first paragraph in that letter of October 21 2013 predates his Particulars of Claim by two years, and that epitomises the argument that he is essentially seeking to put forward."

    This Appeal: the Claimant's Submissions

  43. For the purposes of this appeal, the Claimant has had the benefit of representation from Mr Graham Platford, Counsel, who acts conditionally pro bono and whose submissions have not only been of the greatest benefit to the Claimant but also to the court. It is Mr Platford's fundamental submission that, in going down the route of considering the Claimant's contention that he was the victim of a conspiracy and that there had been a breach of his Article 10 rights, the Learned Recorder allowed the summary judgment to be "hijacked" away from the pleaded case which at no time did Mr Holmes abandon or withdraw. In that context, Mr Platford submitted that the single most important feature of the case was that, in the Defence, the Defendant at no stage seeks to justify the actions of his officers in removing the Claimant from the position where he was originally (on private land) to the designated protest area, nor does the Defendant seek to justify the prevention by the officers of Mr Holmes from returning to the position where he wished to be.
  44. Thus, Mr Platford underpins his submissions with the argument that the Learned Recorder should have concentrated on the case as set out in the pleadings and in the response to the application for summary judgment. He submitted that, with a Litigant in Person, a judge should show more discretion before accepting what may appear to be abandonment of an important part of the case or discontinuance. Returning to the pleadings, Mr Platford pointed out that all the arrests and detentions were admitted and the Defendant admitted that the Claimant had been removed by his officers from his place of protest. Thus, the Defendant needed to plead and prove justification for the arrest and detentions. However, Mr Platford submitted that, at this stage, the Defendant runs into difficulty because there is no pleading in the Defence to justify what is set out in the Particulars of Claim. He submitted that, in the absence of any pleaded justification for removing the Claimant from his place of protest or preventing him from returning thereto, the pleaded justification for the arrest (obstruction) failed. To put it another way around, he submitted that it is clear from the Defence, the Defendant's witness statements and the way that it was put to the Learned Recorder that the police assumed they had a right to remove the Claimant from his place of protest and to prevent his return. However, it was submitted that no such right is conveyed by the Criminal Justice and Public Order Act 1994. He further submitted that the police do not have a right to enforce a landowner's wish to keep people off his property, merely a right to assist a landowner in removing those who are trespassing on his property or where an offence under the Public Order Act may be committed. Thus Mr Platford submitted if, as appears to be the case, the justification for the actions of the police and their arrest of the Claimant for obstruction was that they had a right to remove the Claimant from his place of protest and to prevent his return thereto, it was necessary for the Defendant to plead that right, and there is no such pleading in the Defence.
  45. In this regard, Mr Platford relied upon the decision of the Court of Appeal in R v Chief Constable of Devon & Cornwall Ex-parte Central Electricity Generating Board [1982] QB 458 where CEGB was considering possible sites for a nuclear power station and was authorised by section 35 of the Electricity Act 1957 to enter and survey land. A proposed survey of a particular site led to actions by objectors which prevented CEGB from completing its survey, action which was a criminal offence under section 281 (2) of the Town and Country Planning Act 1971. CEGB wrote to the Chief Constable asking for his assistance in enabling it to perform its statutory duties by preventing further obstruction. The Chief Constable replied that without "a more definite legal mandate" the police would not remove the obstructers since there was no actual or apprehended breach of the peace, nor an unlawful assembly. CEGB appealed against the dismissal of an application for judicial review requiring the Chief Constable to instruct police officers under his control to remove the obstructers. The Court of Appeal dismissed the appeal, holding that the police had power to remove or arrest objectors if there was a breach of the peace or the reasonable apprehension of it, or an unlawful assembly; that by wilfully obstructing the operations of the Board the objectors were deliberately breaking the law, so that the Board was entitled to use the minimum of force reasonably necessary to remove those obstructing the exercise of its powers; that the use of self-help in such circumstances engendered the likelihood of a breach of the peace and accordingly the police were entitled to be present in order to intervene as necessary; that it was for the Board and the police to co-operate in the exercise of their respective powers, but that the decision of the Chief Constable not to intervene was one with which the court should not interfere by making an order of mandamus.
  46. In the course of his judgment, Lord Denning MR announced the basic proposition that:
  47. "English law upholds to the full the right of people to demonstrate and to make their views known so long as all is done peaceably and in good order: see Hubbard v Pitt [1976] QB 142"

    The right of the police comes into play where, as there, the obstructers were deliberately breaking the law and their criminal obstruction was a breach of the peace. Clearly a police officer can do whatever is necessary by way of restraint to prevent a criminal offence being committed or continued.

  48. Mr Platford went further, and submitted that it was not even clear that the Claimant was a trespasser. He submitted that there was a general invitation to the public to go to the Echo Arena and the notice referred to at paragraph 4 above did not suggest that the landowners were withdrawing the general invitation to the public to go on their land. Those notices were, in any event, to the police only. In any event, the notices were arguably directed to non-peaceful demonstrators and at all material times the Claimant was peaceful until the police acted unlawfully in removing him from the position he wanted to be and forcibly taking him to the "protest area". He submitted:
  49. "Thus the Claimant was unlawfully removed from his place of demonstration. Therefore the actions of the police amounted to an assault/battery, they had no right to prevent his return and therefore no basis to arrest him."

    Although there was no claim in damages for assault, that is because the damages claim sounds mainly in relation to the detention. However, the Claimant had clearly asserted and pleaded in his Part 18 response that the removal by the police of him from his place of protest amounted to an assault and that formed the important background to his claim that the arrest was unlawful.

    The Defendant's Submissions

  50. For the Defendant, Mr Wells started by reminding the court that, at an early stage, District Judge Jenkinson had made orders which were intended to refine and define the issues in dispute. Thus, by the order of 3 May 2017 the Claimant was required to indicate which witnesses were agreed and by the order 25 July 2017, the Part 18 questions were allowed. This was all in accordance with the principle espoused by Holland J in Kennedy v Chief Constable of Merseyside Police (Unreported 28 April 2004) where Holland J made it clear that it is necessary in such cases clearly to identify the issues which the jury have to try (that being a jury trial, as it would be here). He submitted that the Learned Recorder, in the hearing below, had done exactly what he would be expected to do, namely attempt to tease out the essence of the Claimant's case and the result was that the Claimant appeared to be putting his case on two un-pleaded bases: first, a conspiracy; secondly breach of his Article 10 rights. Mr Wells supported the Recorder in this regard: he said that it must be clear what the issues are so that the court knows how the case is to be managed. He submitted that the claim had changed and that the Claimant was putting an entirely new and different case.
  51. Mr Wells then addressed the lawfulness of the arrest. He submitted that the important question was what was in the mind of the arresting officer, PC Mackey, at the moment of arrest. In that regard, the arrest for obstruction was, he submitted, plainly justified: there had been a warning, there had been the Claimant's reaction to the warning (violence) and there had been the attempt by the Claimant to push past the officer and return to his original position despite being told by the officer that he may not do so and having been prevented once already from doing so. Mr Wells submitted that, in those circumstances, PC Mackey had reasonable grounds to suspect that the offence of obstructing a police officer had been committed.
  52. Mr Wells further submitted that, in law, it does not matter whether the officer's grounds for believing he had a right to prevent the Claimant from returning to his original place was not in fact correct. In this regard, he relies upon McCann v Crown Prosecution Service [2015] EWHC 2461 (Admin). In that case, a police inspector of the Greater Manchester Police, in the erroneous belief that a particular road was a public highway, instructed the appellant and others to move on the basis that they were obstructing a public highway. The group including the appellant refused and were arrested. In the course of the trial, it emerged that the police inspector had not been told that the road had been confirmed to be a private road. Nevertheless, she gave evidence that had she had been aware of that, she "would have used different powers" to require the appellant to move and stop obstructing the route. The District Judge (Magistrates' Court) was of the opinion that the inspector made a mistake of fact about the status of the road and therefore about the offence which she believed was being committed. However, he directed himself that he did not have to be satisfied that an offence had been committed, merely that "the officer had reasonable grounds to suspect an offence was being committed". He found that the officer's belief, albeit mistaken, was reasonable in the circumstances prevailing at the time and it did not matter that the officer had had the wrong offence in mind because her action was in response to the same activity by the defendant and same mischief that she was seeking to prevent. The Divisional Court upheld the conviction and dismissed the appellant's appeal.
  53. In the course of his submissions for the appellant in McCann's case, Counsel drew attention to the decision of the European Court of Human Rights in Fox, Campbell and Hartley v UK where the court stated:
  54. "The "reasonableness" of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5 (1) (c). The court agrees with the Commission and the government that having a 'reasonable suspicion' presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as reasonable will however depend on the all the circumstances."

  55. In the course of submissions for the Respondent in McCann, counsel accepted that there is a test of reasonableness. A dictum of Lord Parker CJ in Rice v Connolly [1966] 3 WLR 17 was modified so that it read as follows: "It is part of the obligations and duties of a police constable to take all steps which reasonably appear to him to be necessary for preventing crime".
  56. Lord Justice Treacy then said:

    "That concession appears to us to be well founded as otherwise the officer would have an unfettered discretion as to how to act. Mr Ratliff urged that the officer in giving a direction to the appellant to move in the belief that the appellant was obstructing lawful passage along the highway was taking steps which reasonably appeared to her to be necessary for preventing crime. Accordingly what she did was lawful and it was a direction in the execution of her duty. The fact that she had formed the view that the obstruction was taking place on public land rather than private land did not affect the position. In addition, the fact that the officer had given the wrong reason for her direction did not mean that the officer was no longer acting in the execution of her duty."
  57. Thus, the court agreed that the focus needs to be on what is in the mind of the police officer at the relevant time. Having cited the judgment of Ashworth J in R v Waterfield [1963] 48 CAR 42, Lord Justice Treacy said:
  58. "26. In order for the offence of obstruction to be committed, therefore, the officer must be engaging in a course of conduct designed to further a proper policing purpose of the kind described by Lord Parker CJ in Rice v Connolly. The officer must be acting in good faith attempting to achieve that purpose. The conduct must be lawful. Where it involves the use of force for the prevention of crime or the making of an arrest the use of force will be lawful only if it is reasonable."
  59. The court held that the fact that the officer had the wrong offence in mind did not affect the position:
  60. "It was sufficient for the officer to have taken steps which reasonably appeared to her to be necessary for preventing crime."

    Discussion

  61. In my judgment, Mr Platford was correct in his primary submission that the Learned Recorder allowed himself to be diverted away from the real issue in this case, namely whether the arrest of the Claimant was lawful or unlawful. It is true that the Claimant alleged a conspiracy and was therefore suggesting that the police were acting in bad faith when they selected him for removal from his chosen base of protest to the designated area. However, no conspiracy or lack of good faith had been pleaded and therefore this should have been ignored. It was (and is) undoubtedly the Claimant's belief that there was a conspiracy against him and that this was the motivation for the actions of the police, but he had not pleaded (or proved) any such conspiracy and therefore an action based thereon was a non-runner. The Learned Recorder should have returned to the pleaded case and the evidence surrounding that.
  62. The same applies in relation to the breach of Article 10 ECHR. Although this was pleaded as a factor justifying aggravating damages, it was not pleaded as a self-standing cause of action pursuant to sections 6 and 7 of the Human Rights Act 1998. There is no doubt that, at the material time and since, the Claimant believed that his Article 10 rights were being infringed and he said so forcibly - to the officers and the members of the public standing around at the time that he was removed from his place of protest and when he was arrested. However, the pleaded case is that the arrest was unlawful and the issue of the breach of Article 10 should not have distracted the Learned Recorder from concentrating on the pleaded case and the lawfulness, or not, of the arrest. This alone justifies the granting of permission to appeal in this case.
  63. The real question that arises is, in my view, whether it is reasonably arguable on the part of the Claimant that the police officer in question, PC Mackey, had no reasonable grounds for believing or suspecting that he was being obstructed in the execution of his duty. If there is an arguable case in that regard, then the appeal should be allowed and the matter should go for trial so that PC Mackey can be cross-examined about that matter. If, on the other hand, on the facts as they appear to be agreed, I conclude that it is not reasonably arguable that PC Mackey lacked such reasonable belief or suspicion, then the right course would be to dismiss this appeal.
  64. In my judgment, despite Mr Platford's attractive and forceful arguments, there is no reasonable prospect of the Claimant establishing that PC Mackey, when he arrested the Claimant, did not genuinely and reasonably believe that he had justification to do so because the Claimant was obstructing him in the execution of his duty. By his actions, PC Mackey clearly considered that he had a duty to remove the Claimant from the place of protest where the Claimant wanted to be and prevent him from returning there from the designated protest area. It seems clear that, in this regard, PC Mackey was acting on the instructions of superior officers. One can perhaps trace the source of those instructions to the notices given by the owners of the land to the police set out in paragraph 4 above. It may be arguable, for all I know, that the belief by the Merseyside Police that, in consequence of those notices, they had the right to remove the Claimant from his place of protest and prevent his return thereto was erroneous. What I have no doubt about is that their belief was genuine. In those circumstances, the present case is closely analogous to McCann v CPS [2015] EWHC 2461 (Admin). Even if it were the case that PC Mackey had been mis-informed by his superior officers that the Claimant had no right to protest from the area he wanted to protest from, it seems to be inevitable that PC Mackey can establish that his belief was both genuine and reasonable in the circumstances. It follows therefore that he genuinely and reasonably believed that the Claimant was obstructing him in the exercise of his duty and that is sufficient to have made his arrest of the Claimant lawful.
  65. Although Mr Platford did not abandon the free-standing allegations in relation to the duration of the detention and the "bail arrests", in my judgment the claims in respect of those matters were correctly dismissed by the Learned Recorder on the basis that the Defendant had submitted statements from police officers fully explaining and justifying what was done, and the fact that the Claimant did not contest those statements was inevitably fatal to his claim in regard to those causes of action.
  66. In all the circumstances, for the reasons set out above which are different to the reasons given by the Learned Recorder, I consider that this appeal should be dismissed.
  67. Costs

  68. Since promulgating a draft of this judgment to the parties, I have received written submissions on the question of the costs order that should be made.
  69. In essence, I am in agreement with the submissions made by Mr Wells on behalf of the Defendant and I consider that costs should follow the event.
  70. An Order is attached to this judgment.


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