The latest decision of the Court of Appeal in Parker v Chief Constable of Essex Police [2018] EWCA Civ 2788 is important for all police lawyers. The facts are quite detailed but, essentially, where the police perform an unlawful arrest (which would result in unlawful detention), the arrested person will receive only nominal damages where they could and would have been lawfully arrested had the correct procedures been followed.
There is also a second element – which is that the question of whether the police have a reasonable suspicion for the purpose of making an arrest ought to be considered in the round; courts ought not to over-compartmentalise the issue by analysing each factor separately.
The first point is straight-forward to explain. A decision was taken to arrest Michael Parker, more commonly known as Michael Barrymore, following a re-investigation into the death of Stuart Lubbock at his home. In order to avoid inadvertent disclosure of information, officers involved in the operation were given limited information, save for the intended arresting officer DC Jenkins, who was briefed on the arrest plan and grounds. Unfortunately, DC Jenkins was delayed in traffic, with the result that a police sergeant ordered another constable, who had not been briefed on the grounds, to make the arrest.
The judge at first instance held, just about, that there were reasonable grounds for suspicion justifying Mr Parker’s arrest. Unfortunately, those grounds were not known or held by the arresting officer, rendering the arrest unlawful – see O’Hara v Chief Constable of the RUC [1996] UKHL 6; [1997] AC 286 – a decision which should be etched on the inside eyelids of every arresting officer. The Chief Constable had, therefore, conceded the unlawfulness of the arrest but submitted that any damages ought to be nominal, because had Mr Parker been arrested by DC Jenkins – as he ought to have been – he could, and would, have been lawfully arrested and had therefore suffered no loss.
The Court of Appeal (overturning the decision of the High Court) agreed. It relied on the decision of R (Lumba) v Sec State for the Home Dept [2011] UKSC 12; [2012] 1 AC 245, which held that a person would suffer no loss or damage as a result of an unlawful exercise of a power to detain if the power could have been lawfully exercised [91]. Essentially, it was necessary to examine what would have happened had things been done as they should have been done [100].
Here, the Court of Appeal held that if the officers had been alert to their O’Hara obligations, either the arrest would have awaited DC Jenkins’ arrival, or she would have sufficiently briefed the arresting officer – with the result that the arrest would have been lawful [107]. Or, put another way, if things had been done as they should have been done, a lawful arrest would have been effected [132].
In those circumstances, no harm had ultimately been caused. The court cautioned that this was not to encourage sloppy practice but, rather, reflected actual loss. It recognised the distinction to be drawn between those who would have been arrested in any event and those who would not [108].
The second element of the case concerned reasonable suspicion. The Court of Appeal held that courts should not over-compartmentalise the information and seek to analyse (and possibly undermine) each, piece by piece, following Armstrong v Chief Constable of West Yorkshire Police [2008] EWCA Civ 1582 and Buckley v Chief Constable of Thames Valley [2009] EWCA Civ 356 [115]. In the real world, police officers are bound to weigh all material, not just selected parts, in deciding whether there were reasonable grounds for suspecting and arresting a person [116].
The Court of Appeal upheld the High Court’s finding that there was reasonable suspicion to arrest – but indicated obliquely that the High Court was, perhaps, a bit cautious in its finding [117]-[119].
Commentary
This is undoubtedly an important case for all practitioners – and affirms the application of Lumba to police arrests and detention. Importantly, issues of causation cannot be relied upon to cure unlawfulness. As the court said in Lumba, there is no causation element in the tort of false imprisonment (unlike in negligence): false imprisonment is actionable per se, without proof of damage. It is no defence to an unlawful arrest that an officer could and would have acted lawfully.
It may be that part of the justification for a claimant’s bringing a claim for unlawful arrest and detention and/or a breach of Article 5 is that they seek a declaration that the police have acted unlawfully. That remains unaffected. However, such a victory may be pyrrhic where a court goes on to find that the failures were technical rather than substantive. In such circumstances, damages are likely to be nominal – reflecting, as the Court of Appeal said, the lack of any real loss.
It might be said that the extension of Lumba in this way undermines the importance of interferences with fundamental rights. Or that it encourages what the Court of Appeal said it should not – sloppy practice. It certainly may affect other elements of police law claims – for instance a failure by police officers to conduct detention reviews required by Police and Criminal Evidence Act 1984 s40.
It is worth recalling the definition of nominal damages from The Mediana [1900] AC 113, 116 (HL) (Earl of Halsbury LC):
‘Nominal damages’ is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed.
That is what Parker affirms – the principle of injuria sine damno, that the police’s violation of legal rights without harm, loss or damage merits nominal damages only.
John Beggs QC and Cecily White acted for the Chief Constable of Essex Police below and in the Court of Appeal and Lord Faulks QC was also instructed on the appeal. Adam Hunt led the team at Essex Police with Tom Walshaw at DAC Beachcroft as the instructing solicitor.