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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Parker v The Chief Constable of Essex Police  EWHC 2140 (QB) (18 August 2017)
Cite as:  EWHC 2140 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| MICHAEL CIARAN PARKER
|- and -
|THE CHIEF CONSTABLE OF ESSEX POLICE
Mr John Beggs QC and Ms Cecily White (instructed by DAC Beachcroft) for the Defendant
Hearing dates: 22nd , 23rd, 24th, 25th May 2017
Crown Copyright ©
Mr Justice Stuart-Smith :
i) The Claimant could and would have been lawfully arrested but for the delay in attendance of the designated arresting officer; and
ii) That, as a result, the Claimant is entitled only to nominal damages for false imprisonment."
i) The Claimant could have been lawfully arrested by the designated arresting officer, DC Jenkins, but not by any other officer relevantly engaged in the operation;
ii) In the enforced absence of Ms Jenkins, who was delayed in traffic, if the Claimant had not been unlawfully arrested by PC Cootes he would have been unlawfully arrested by another officer. He would not have been lawfully arrested;
iii) As a result of (i) and (ii) the Defendant has failed to establish that the Claimant could and would have been lawfully arrested so as to bring the Defendant within the scope of what has been called the Lumba principle; and accordingly
iv) The Claimant is not restricted to recovering nominal damages only.
The Legal Principles
"Fundamental rights are in play. Chapter 39 of Magna Carta (1215) (9 Hen 3) said that "no free man shall be seized, or imprisoned except by the law of the land" and the Statute of Westminster (1354) (28 Edw 3, c 3) provided that "no man of what state or condition he be, shall be imprisoned without being brought in answer by due process of the law". That the liberty of the subject is a fundamental constitutional principle hardly needs the great authority of Sir Thomas Bingham MR (see In re S-C (Mental Patient: Habeas Corpus)  QB 599, 603) to support it, but it is worth recalling what he said in his book The Rule of Law (2010), at p 10, about the fundamental provisions of Magna Carta: "These are words which should be inscribed on the stationery of the Home Office." "
"(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.
(4) But the power of summary arrest conferred by subsection (2) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.
(5) The reasons are
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;"
Reasonable grounds for suspicion: the requirements of s. 24(2) of PACE
"(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 as to 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 two previous questions is in the affirmative, then the officer has a discretion which entitles 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 by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corpn  1 KB 223."
i) Did the arresting officer suspect that an offence had been committed? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.
ii) 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 Court.
(A1) Did the arresting officer suspect that an offence had been committed? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.
(A2) Assuming the officer had the necessary suspicion, did the arresting officer have reasonable grounds for that suspicion? This is a purely objective requirement to be determined by the Court.
(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 as to the officer's state of mind.
(2) Assuming the officer had the necessary suspicion, did the arresting officer have reasonable grounds for that suspicion? This is a purely objective requirement to be determined by the judge if necessary on facts found by a jury.
(2A) Did the arresting officer believe that for any of the reasons mentioned in subsection (5) it was necessary to arrest the person in question? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.
(2B) Assuming the officer had the necessary belief, were there reasonable grounds for that belief? 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 questions is in the affirmative, then the officer has a discretion which entitles 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 by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corpn  1 KB 223."
The last question is not in issue and does not arise in this 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 an arrest before that were forbidden, it could seriously hamper the police."
"My Lords, the test which section 12(1) of the Act has laid down is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised."
And at 302G:
" the reasonable suspicion has to be in the mind of the arresting officer. So it is the facts known by or the information given to the officer who effects the arrest or detention to which the mind of the independent observer must be applied. It is this objective test, applying the criterion of what may be regarded as reasonable, which provides the safeguard against arbitrary arrest and detention. The arrest and detention will be unlawful unless this criterion is satisfied."
Lord Steyn put the matter equally clearly at 293B: "the only relevant matters are those present in the mind of the arresting officer."
"For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised."
In summary, the arresting officer may rely on information received from others; but he may not simply obey orders.
"This means that the point does not depend on whether the arresting officer himself thought at that time that [the grounds in his mind] were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It is the arresting officer's own account of the information which he had which matters, not what was observed by or known to anyone else. The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in his mind alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any facts on which he based his suspicion were in fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and its context, seen in the light of the whole surrounding circumstances." [Emphasis added]
In other words, although considerable latitude is given to the arresting officer, because it is not necessary to prove that the facts on which he relied were true, what matters is whether the source of the information is one on which he may reasonably rely. If it is not, he may be held to have no reasonable grounds for his suspicion, whether the information on which he relied later proves to be true or false.
"38 The lawfulness of an arrest depends, as I have said, on whether the arresting officer has a genuine suspicion and there are reasonable grounds for that suspicion. If, , the arresting officer has such a suspicion and the briefing provides reasonable grounds for the suspicion, the arrest will be lawful. In those circumstances the omission of relevant material from the briefing cannot possibly render the briefing officer liable for wrongful arrest, since there is no wrongful arrest for which he can be liable, whether as sole or joint tortfeasor.
39 I therefore take the view that the knowledge of [the report in question] by [the senior officer], as the briefing officer, is incapable in law of affecting the lawfulness of the arrest effected by [the arresting officer]. "
For the reasons explained by Lord Hope in the passage set out above, it is implicit in this statement of principle that the arresting officer acted reasonably in relying upon the (partial) briefing he was given because of its source.
"There is ample authority for the proposition that courses of inquiry which may or may not be taken by the investigating police officer before arrest are not relevant to the consideration whether, on the information available to him at the time of the arrest, he had reasonable cause for suspicion. Of course, failure to follow an obvious course in exceptional circumstances may well be grounds for attacking the executive exercise of that power under the Wednesbury principle."
Woolf LJ at 23A put the principle rather differently:
"The learned judge was of the view that the police could have questioned the plaintiff before they arrested her and could have made further inquiries and come back later if they were not satisfied with her answers. However, while this was a possible course which the police could have taken, in my view it was not a course they were required to take; not because the plaintiff might have disappeared but because there was already sufficient material to provide reasonable cause for the police's suspicion".
Lawton LJ said:
"whether more inquiries should have been made was within the ambit of [the officer's] executive discretion which cannot be questioned except on Wednesbury principles."
"For my part, I accept the proposition that the thoroughness of an investigation may well be relevant as part of the whole surrounding circumstances as described by Lord Hope in O'Hara. There may be circumstances, provided there is no urgency, which makes it incumbent upon an officer to make further enquiries before "suspicion could properly crystallise" (for which see paragraph 17 of the judgment of the then Simon Brown LJ in Hough v Chief Constable of the Staffordshire Constabulary  EWCA Civ 39 ). However, it is important to remember, in my view, that an arrest may be effected very early on in an investigation, and it is nonetheless lawful for that. It will not always be possible or indeed desirable to carry out further enquiries before making an arrest; "
" the correct approach to judgment upon the lawfulness of arrest is not to separate out each of the six elements of the constable's state of mind and ask individually of them whether that creates reasonable grounds for suspicion; it is to look at them cumulatively, as of course the arresting officer has to at the time."
"The protection of the public is safeguarded by the requirement 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 on before acting to have anything like a prima facie case for conviction " Dumbell v Roberts  1 All ER 326, 329A per Scott LJ; and see O'Hara at 293 per Lord Steyn.
To similar effect, Woolf LJ in Castorina said at 21D:
" it is critical to note that [the equivalent section] only requires suspicion of guilt, not belief or even prima facie proof of guilt."
"On the other hand it is important to have in mind that, as the judge held, at para 47, the threshold for the existence of reasonable grounds for suspicion is low: see eg Dumbell v Roberts  1 All ER 326 , 329 a-b , per Scott LJ, where he said: "That requirement is very limited"; the Hussein case  AC 942, 948g-949a, per Lord Devlin; and the O'Hara case  AC 286, at p 293c per Lord Steyn, and p 296d-e per Lord Hope."
"The information available to Hampshire Police suggested that Allen and Muat were, or might well still, be together. Therefore although it was plain by 16:22 that Allen was no longer driving the car the police would have been open to criticism if they had proceeded on the basis that Allen's connection with it, so obvious shortly before, was irrevocably severed, or that coincidentally with becoming aware that he was being followed by the police, he had finally disposed rapidly of any interest in it. Therefore it did not follow from the fact that Allen was no longer present at the car that his colleague Muat, too, was absent. DC Perry thought it possible that [the Claimant] was Muat. This state of mind reflected a degree of uncertainty, or to use Lord Devlin's words, a state of "conjecture or surmise". In my judgment this state of mind, suspicious but uncertain, was based on reasonable grounds."
"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 by 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. In this case, the only information short of interviewing the appellants and Mr Starbuck, which could have achieved that was the information enabling the police to determine the time at which the over-taping of the "spot" tape or the tampering with the "multiplex" tape had taken place. The judge concluded, and in my view he was entitled to, that the police were justified in doubting whether the "spot" tape was genuine. There was never any suggestion that the police could or should have been able to identify when the "multiplex" tape had been tampered with. In these circumstances, the judge could properly find, as he did, that there were reasonable grounds for suspecting all six of those arrested of having committed the offence."
Necessity: the requirements of s. 24(4) of PACE
"The relevance of the thought process is not that a self-direction on all material matters and all possible alternatives is a precondition to legality of arrest. Rather it is that the officer who has given no thought to alternatives to arrest is exposed to the plain risk of being found by a court to have had, objectively, no reasonable grounds for his belief that arrest was necessary."
At , having referred to the limited need for the officer to apply his mind to alternatives to arrest lest he be open to challenge, Hughes LJ continued:
"That also seems to me to be clearly the conclusion which best represents the balance which the law must strike in this area between practicable policing and the preservation of the liberty of the subject. The circumstances of the present arrest were comparatively relaxed. It is by no means always so. To require of a policeman that he pass through particular thought processes each time he considers an arrest, and in all circumstances no matter what urgency or danger may attend the decision, and to subject that decision to the test of whether he has considered every material matter and excluded every immaterial matter, is to impose an unrealistic and unattainable burden. Nor is it necessary. The liberty of the subject is amply safeguarded if the rule is as Mr Beer contends, namely: (1) the policeman must honestly believe that arrest is necessary, for one or more identified section 24(5) reasons; and (2) his decision must be one which, objectively reviewed afterwards according to the information known to him at the time, is held to have been made on reasonable grounds."
"I should add that we have not been concerned in the present case with the position of an arresting officer who, often in a complex inquiry, receives an order to arrest a particular suspect. Such an officer will often not have access to all the material which the officers directing the inquiry will have. The decision to arrest, and to do so at a particular time, will often be part of a closely co-ordinated plan for the inquiry. I pause only to say that it is clear from the O'Hara case that this common situation is readily accommodated within the rules as I have set them out to be. The arresting officer must himself have reasonable grounds for believing that the suspect has committed an offence, and likewise reasonable grounds for believing that it is necessary, for a section 24(5) reason or reasons, to arrest him. But information given by others, attached to orders issued by them, can be and usually will be part of the information which goes to his grounds for belief of one or both matters, and thus to the reasonableness of the belief. That that is the law provides another reason why section 24(4) ought to be interpreted in the manner stated, rather than as requiring comprehensive consideration by the officer of all matters capable of being relevant to the decision, which would require him to have access to, and time to digest, a much fuller picture of the overall investigation than is realistic."
The Lumba Principle
"20. The tort of false imprisonment is compensated in the same way as other torts such as to put the claimant in the position he would have been in had the tort not been committed. Thus if the position is that, had the tort not been committed, the claimant would in fact have been in exactly the same position, he will not normally be entitled to anything more than nominal damages .
23 As I have said, the principle dictates that the court, in assessing damages for the tort of false imprisonment, will seek to put the claimant in the position he would have been in had the tort not been committed. To do that, the court must ask what would have happened in fact if the tort had not been committed."
"13 It is important to understand precisely what was decided by the majority of the Supreme Court in Lumba. The appellants were detained by the Secretary of State on conclusion of their terms of imprisonment pending the making of deportation orders against them. Their detention arose as a result of the application of an unpublished policy. But it was held by the judge at first instance that, even if the Secretary of State had applied her published policy, she would anyway have detained them pending deportation.
14 The majority of the Supreme Court (6 out of the 9 Justices) decided that false imprisonment was a trespassory tort that was actionable per se whether or not the victim had suffered harm. Once direct and intentional imprisonment by the defendant had been established, the burden passed to the defendant to show a lawful justification. If that justification was by a public authority with power to detain, that authority had to show the power had been lawfully exercised. If the power were not lawfully exercised, then the claim would succeed if the breach of public law bore on and was relevant to the decision to detain. It was not a defence to show that a lawful decision to detain could and would have been made. Accordingly, the Secretary of State was liable for the tort of false imprisonment.
15 In addition, a majority of the Justices in Lumba decided that the claimants had suffered no loss as a result of the unlawful exercise of the power to detain, because it was inevitable that they would anyway have been detained had the published policy and the correct principles been applied. Accordingly, there was no justification for either exemplary or vindicatory damages, and the claimants were entitled to no more than nominal damages."
The Issue in the Present Case
"On 14 June 2007 there were reasonable grounds to suspect the Claimant of the two offences for which he was arrested.
a. Detective Superintendent Wilson and DC Jenkins (amongst other officers) were fully aware of the grounds for arrest set out in paragraph 44 herein and the grounds for necessity set out in paragraph 45 herein;
b. The Claimant would have been arrested by the designated arresting officer DC Jenkins, but for the fact that she was delayed when the Claimant was spotted by surveillance officers including PC Cootes;
c. The arrest of the Claimant was unlawful only by reason of the fact that the arresting officer, PC Cootes, was not fully aware of the grounds for arrest, see O'Hara v. RUC  AC 286 and not by reason of a lack of (i) reasonable grounds to suspect the Claimant of the offences for which he was arrested; and/or (ii) necessity to effect the arrest.
d. Since the Claimant would have been lawfully arrested but for the said delay, he is entitled only to nominal damages for false imprisonment.
"For the avoidance of doubt, it is the Defendant's case that:
(i) Since the Claimant could and would have been lawfully arrested but for the delay in attendance of the designated arresting officer, the Claimant is entitled only to nominal damages for his false imprisonment, pursuant to the principles set out by the Supreme Court in Lumba  UKSC 12;
(ii) The Claimant suffered no losses as a result of his arrest in June 2007; "
"The Defendant's case is that had ex-PC Cootes or his supervisor ex-PS Smith appreciated the O'Hara point (plainly neither did) and decided not to arrest the Claimant without having the grounds for suspicion in mind, the Claimant would have been arrested lawfully in any event because there were reasonable grounds both for suspecting him of the offences of rape and murder and for believing that it was necessary to arrest him. In other words, but for the tort, he could and would have been arrested lawfully.
There is no (and no need for) evidence of counterfactuals: The Court will have to consider the likely scenarios on the balance of probabilities, having regard to all the available evidence.
Wilson's evidence is important. As his witness statement makes clear , he was determined to ensure the arrest of the Claimant and co-suspects concurrently. As Wilson said (which was unchallenged) the Claimant was, on being sighted, going to be arrested on 14 June 2007, "come what may".
The Defendant suggests that only two counterfactuals appear realistic, had PS Smith or PC Cootes appreciated that they lacked reasonable suspicion (though they both plainly knew the outline reasons for arrest): Either they would have called DC Jenkins so as to have been sufficiently briefed by her or they would have kept the Clamant under surveillance and awaited her arrival. Given the dual imperatives of (i) not losing the Claimant and (ii) effecting simultaneous arrests, the former scenario seems, on balance, the more likely."
The Factual Background
30/31 March 2001 and the early enquiries
The Wilson Investigation
i) First, on 23 March 2007 a statement was provided by a witness who gave evidence of a conversation she had had in either 2003 or 2004 with the person who was at some point the Claimant's boyfriend. Neither the witness who gave the statement nor the person with whom she said she had the conversation had been at the Claimant's house on the night of 30/31 March 2001. According to the witness, the other person had said (apparently referring to the injuries to Mr Lubbock) "Did you know it was a hairbrush?" or "It was a hairbrush." The weaknesses in this evidence are obvious, but I do not suggest that the police should have ignored the information altogether on that account. Taken at its highest it is suggestive of an unlawful assault. It gives no indication of who carried out any such assault.
ii) Second, the police had received information on 12 December 2006, which was also the subject of a statement dated 14 May 2007 from a police community support officer who said that between 2001 and 2006 he had been asked to take a statement from a female who worked at the Springfield Medical Centre in Chelmsford who had told him that, the day after the death of Mr Lubbock, the Claimant "had a medical procedure on his penis" at the centre. DC Paterson was instructed to pursue this line of enquiry; and on 17 May 2007 he reported having spoken to the female. She admitted having told the police that she had seen the Claimant at the medical centre; but she said that she could not remember saying anything about an injury to the Claimant's penis as she had not looked after him at any time during his visit. She refused to give a statement. Off the record she said that it was "at the time of the incident at [the Claimant's] address" that he attended the hospital but that she could not say what he was treated for.
The Decision to arrest and the Arrest Plan
i) The presence and use of drugs at the Claimant's house on 30/31 March 2001 had been known since 2001. The Claimant had accepted a caution for possession of cannabis and no action had been taken against him in relation to cocaine that was found at the house. Toxicology had revealed at an early stage that Mr Lubbock had taken cocaine;
ii) The information about the Claimant pestering Mr Lubbock for sex was derived from a witness statement from a Mr Kelleher taken on 26 January 2007 and was said to be based on a conversation with Mr Kenney a couple of days after the incident, which he said he could not remember exactly;
iii) Mr Wilson accepted in cross examination that it was hearsay given six years after the event and that he had to view its reliability very carefully, but he said that he regarded it as important because of the mention of the Claimant pestering Mr Lubbock for sex, which he took as being interested in a sexual encounter. He did not place weight on the reference to the Claimant having a fracas with Mr Kenney after he told the Claimant that Mr Lubbock was straight. He said, and I accept, that he placed weight on this information because it had not been volunteered by the Claimant at any stage, though he recognised that this could have been because it did not happen or because the Claimant did not remember it rather than because the Claimant might have concealed it.
i) The police had the CPS summary, which set out the allegation that had been made. Mr Wilson did not remember whether he had read it or was aware of it; but given the significance attached to the "bad character" evidence I would expect and infer that he would have either seen it or been made aware of it. Ms Jenkins would, on her evidence, have read it;
ii) The incident had been thoroughly investigated by the Metropolitan Police. They interviewed the Claimant who denied the allegation. They took swabs and intimate samples from the complainant and tested for DNA but found no DNA from anyone other than the complainant himself;
iii) Video evidence showed the complainant arriving at the night club at the same time as the Claimant at 21:00. It also showed him entering the upstairs toilet at 21:18 and leaving the same toilet one minute later "in a composed state." The video evidence confirmed that the Claimant did not join him. Two minutes later the complainant left the club by the front entrance. He was ejected from the club at 21:40 and was seen to make a phone call;
iv) The Sun received a phone call from someone claiming to be the victim on the night of the (non) incident. The News of the World arrived before the police, and carried the story on 10 May 1998;
v) Unsurprisingly, the CPS advised against taking further steps;
vi) In cross-examination, Mr Wilson said that the allegation would be "at the lower end of what [he] would say is acceptable" meaning at the lower end of what could properly be given any weight in assessing the case for arresting the Claimant or, on a numerical scale "pretty close to 0";
vii) On any reasonable assessment, no weight at all could or should have been given to this item by Mr Wilson or anyone else. The allegation was demonstrably untrue and had been closely followed by an attempt to involve the media to the Claimant's disadvantage. Mr Wilson suggested that it had been included by an officer being open in his presentation of relevant material to his SIO. That is not an interpretation that I can accept. While accepting that the officer compiling the Arrest Plan was not bound to include all matters that might be favourable to the Claimant in order to present a balanced picture, the presentation of this item as evidence of bad character or a tendency to sexually aggressive behaviour was misleading and unjustifiable, as should have been realised by anyone with access to the underlying material. Mr Wilson eventually (and rightly) withdrew his evidence that this item was suggestive of aggressive sexual behaviour.
i) There was no suggestion that the Claimant had taken part in any sexual activity. The incident did not provide evidence suggestive of aggressive behaviour (sexual or otherwise) on his part. There was no suggestion that he had taken part in any sexual or other assault;
ii) The Defendant asked me to read the entire file relating to the incident, and I have done so. It discloses that:
a) the Claimant accepted a caution for allowing the room he had hired to be used for cannabis to be smoked, contrary to s. 8 of the Misuse of Drugs Act 1971;
b) the Case Summary states that after paying the complainant her money, the Claimant left the room and indicates that he was not in the room again while she was there;
c) the complainant provided a witness statement in which she said that the Claimant was present until after the start of her sexual activity with the other man and then got up and left, after which she did not see him again. On the account given in the witness statement the Claimant left before the other man started to get rough with her;
d) the complainant sold her story to the Sunday People. As reported in the press, she said that she did not see the Claimant after he paid her money and left. After the story broke, she did not contact the Officer in the case, nor could she be contacted;
iii) In cross-examination Mr Wilson said that this was not "at the upper end" though he would not grade it numerically as having 0 weight. He eventually conceded that there was no suggestion of aggressive behaviour by the Claimant but said that the incident concerned him, on the misconceived basis that the Claimant had been in the room when the other man was being rough and had not stopped when asked. In re-examination, he was led with the suggestion that this incident was indicative of "risky" behaviour. It need hardly be pointed out that this is a very long way from being behaviour that suggests aggressive sexual behaviour on the part of the Claimant.
i) The first referred to the Claimant having "fled the scene" and to evidence that he did so wearing different clothes from those he had been wearing at the club the previous evening and having a bundle of some sort under his arm: see  above;
ii) The second stated that it had previously been believed that the Claimant had never been to the nightclub in Harlow before 30 March 2001 but that there was now evidence that he had been there on about five previous occasions;
iii) The third referred to the suggestion that the Claimant had been admitted to the Springfield Medical Centre on 31 March 2001: see [75(ii)] above.
"[The Claimant] was a suspect with a history of sexual promiscuity, who was reported to have been actively looking for sex and who was one of only three individuals who had had the opportunity to act on his desires. His behaviour after the incident was suggestive of a "guilty mind". The fresh evidence gathered during the re-investigation pointed to someone who had never been open with the police about what he knew. I carefully considered whether it was the right decision to arrest him. I needed to be sure that my actions were both legal and proportionate because I recognised the impact this would have on him as an individual. His celebrity status did not alter my decision, but it did mean I considered it with particular care."
"I can confirm that [the Claimant] was, on being sighted, going to be arrested on 14 June 2007, whether by as planned and as preferable the designated arresting officer or by someone stepping into that breach in her absence. It is very unfortunate that the actual arresting officer, PC Cootes, had not been fully briefed on the grounds for arrest due to the tight control of information under investigation. However, in reality, once [the Claimant] had been located, he was going to be arrested come what may."
Put simply, there was no Plan B to ensure that the arrest of the Claimant could be lawful if Ms Jenkins was not available to effect it.
Has the Defendant established that the Claimant could have been arrested lawfully but for the delay in the attendance of the designated arresting officer?
i) Did Mr Wilson and Ms Jenkins have reasonable grounds to suspect the Claimant of murder and rape?
ii) Did Mr Wilson and Ms Jenkins have reasonable grounds to believe that arrest was necessary for a prompt and effective investigation?
i) Applying the Hussien approach, more than one person may be suspected of having committed a crime even if only one person in fact committed it;
ii) The threshold for the existence for suspicion is low: see Mohamed Raissi;
iii) Thinking that an occupant of a car could possibly be someone who was linked to a crime may been held to be sufficient: see Parker v Chief Constable of the Hampshire Constabulary; and
iv) Where a small number of people can be clearly identified as the only ones capable of having committed the offence, that can afford reasonable grounds for suspecting each of them of having committed the offence, in the absence of information which could or should enable the police to reduce the number further: see Cumming.
Would the Claimant have been arrested lawfully?
a) Stuart Mr Lubbock was a young, healthy male. Young healthy men do not generally drown in domestic swimming pools in the presence of numerous other adults.
b) Mr Lubbock had been invited back to the Claimant's house for a party by the Claimant who had been drinking and was in possession of illegal drugs which he offered to the party goers.
c) By a statement dated 31 March 2001 it was reported to police by the taxi driver Keith Herrett, who had driven the Claimant and Mr Lubbock back from the Millennium Club, that on the way back to his house from the Millennium Club the Claimant had said to Mr Lubbock "I could do with a good fuck now, I'd be happy with that now".
d) Mr Lubbock had consumed alcohol, Ecstasy and Cocaine. There was evidence that the Cocaine had been provided by the Claimant.
e) At about 0546 hours on 31 March 2001 Mr Lubbock was found unconscious, hypothermic and virtually naked in the Claimant's swimming pool.
f) The Claimant was on 31 March 2001 of homosexual orientation.
g) Whilst others by the poolside offered assistance to the deceased, the Claimant was seen rummaging through drawers in his house.
h) Instead of waiting at the scene for the arrival of the police, the Claimant left his house, carrying something, and went to Futer's house, an act consistent with a guilty mind and / or a person who was seeking "thinking time" after committing a criminal offence.
i) Furthermore, from around 0930 until around 1700 hours on 31 March 2001 when Dr Heath identified the likelihood of sexual assault on Mr Lubbock, the Claimant's personal assistant, Mr Browne, attended the Claimant's house to "tidy up".
j) On the afternoon of 31 March 2001 the Claimant sought treatment at the Marchwood Priory Clinic in Southampton, thereby avoiding further police scrutiny. Prior to his arrest on 14 June 2007 Essex police received information that during an admission to the Springfield Medical Centre on or shortly after 31 March 2001 this admission the Claimant reported an injury to his penis to the Medical Centre. After his arrest it was discovered by Essex Police that the Claimant received treatment at the Springfield Medical Centre some time later and not immediately after Mr Lubbock's death.
k) The consensus of the pathology evidence:
i. showed severe injuries to Mr Lubbock's anal canal which were consistent with the non-consensual insertion of a firm object;
ii. excluded the possibility of the anal injuries being caused post mortem or by the insertion of a digital thermometer during attempts at resuscitation;
iii. expressed no surprise that nursing clinicians at the Princess Alexandra Hospital had not noted the anal injuries during clinical care of the deceased since such clinicians would have had no cause to conduct a close examination of the anal canal.
l) Prior to the 14 June 2007 arrest, analysis by Essex Police revealed that:
i. The Claimant had the motivation and opportunity to sexually assault Mr Lubbock on the night in question.
ii. There were reasonable grounds also to suspect Justin Merritt and Jonathan Kenney of Mr Lubbock's rape and murder; those grounds contributed to the grounds of suspecting the Claimant for the same offences since he was then the partner of Kenney and the friend of Merritt.
m) In a statement dated 11 January 2007 James Futers confirmed that on the evening in question the Claimant tried to kiss him to "test the water" with him sexually but Futers declined any sexual activity since he was not heterosexual. In this statement Futers also confirmed that the Claimant rubbed his finger, with white powder on it, on the inside of his (Futer's) gums and mouth saying "here, try this".
n) It was reported to police on 26 January 2007 by Daniel Kelleher, a former work colleague of Jonathan Kenney (the Claimant's partner at the time of Mr Lubbock's death), that after the incident Kenney had told him that the Claimant had been pestering Mr Lubbock for sex but that Mr Lubbock was heterosexual and had got into a fracas with the Claimant about this pestering.
o) By statement to police dated 23 March 2007, Rachel Davis asserted that following a cremation service on 1 July 2002, Shaun Davis, the Claimant's former long term partner, told her that a "hairbrush" had been used on the Claimant on the night of his death. Shaun Davis was likely to have received that information from the Claimant.
p) By statements dated 18 May and 4 June 2007 Dr Nathaniel Cary, Home Office Accredited Consultant Forensic Pathologist, gave the opinion that Mr Lubbock's severe anal injuries occurred between Mr Lubbock taking off his clothes to swim and the attendance of the paramedics. In other words, that his injuries did not pre-date his attendance at the Claimant's house. Cary also considered that the anal dilation required for the anal injuries was capable of causing reflect cardiac arrest through the mechanism of vagal inhibition. Cary also gave the opinion that "the coincidence of death with severe injuries provides prima facie evidence that death occurred in circumstances of third party involvement, whether or not the anal injuries contributed to death".
q) By June 2007 Essex police had accumulated a cohort of "bad character" evidence against the Claimant in the context of circumstances where the Claimant had found himself the subject of allegations of sexual assault or being present during the same. These events occurred in May 1998 (allegation of rape from male), August 2000 (present when a male associate was violent towards a female prostitute), October 2000 (allegation of rape from male) and December 2001 (allegation of indecent assault from male). This evidence tended to suggest that the Claimant was interested in and / or capable of violent sex and / or sexual assault.
r) The ex chauffeur to the Claimant gave evidence to the police that in 2000 (the year before Mr Lubbock's death) he would drive the Claimant around London after his "Strike it Lucky" TV appearances so that the Claimant could engage in road-side encounters with male prostitutes and purchase Class A drugs from the road side.
s) In the premises of the totality of the evidence set out in subparagraphs (a) to (r) above, it was reasonable to suspect that the Claimant, either alone or in concert with Justin Merritt and / or Jonathon Kenney, had raped Mr Lubbock and caused his death by drowning, asphyxiation or otherwise.
a. The Claimant was one of three suspects being arrested on this date on suspicion of having participated in the same very serious offences.
b. New evidence (as particularised in subparagraphs (l) to (r) of paragraph 44 above) had come to light since the Claimant had last been interviewed in December 2006. Furthermore, the allegation at subparagraph (c) of paragraph 44 had not previously been put to the Claimant.
c. It was important to put the allegations arising from the new evidence to the Claimant and the other two suspects simultaneously before he or they had the opportunity to confer or collude upon the same or to interfere with potentially probative evidence or witnesses.
d. The Claimant had previously shown a reluctance to cooperate, including by leaving his house shortly after the finding of Mr Lubbock's body in the pool. Furthermore, when previously interviewed by police the Claimant had negotiated his attendance with the police via third parties.
e. It was important for the investigating officers to maximise their control over these three suspects so that during simultaneous interview they could maximise the forensic impact if any of the three suspects made inculpatory comments.