Adorian v Commissioner of Police for the Metropolis
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley |
| Judgment Date | 23 January 2009 |
| Neutral Citation | [2009] EWCA Civ 18 |
| Docket Number | Case Nos: A2/2008/1271, A2/2008/1271(B) & A2/2008/1271(Y) |
| Court | Court of Appeal (Civil Division) |
| Date | 23 January 2009 |
[2009] EWCA Civ 18
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Mr Justice Owen
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
Lord Justice Sedley
Lord Justice Keene and
Lady Justice Smith
Case Nos: A2/2008/1271, A2/2008/1271(B) & A2/2008/1271(Y)
Claim No: HQ07X02848
Mr T Owen QC and Ms P Kaufmann (instructed by Messrs Bhatt Murphy) for the Claimant/Respondent
Mr E Faulks QC and Mr P Stagg (instructed by Directorate of Legal Services) for the Defendant/Appellant
Hearing date: Thursday 18 December 2008
Lord Justice Sedley :
This is the judgment of the court.
Shortly after midnight on 21 August 2004 the claimant was arrested in central London for disorderly behaviour. He was later charged with obstructing police officers in the execution of their duty, was convicted and was granted a 24-month conditional discharge.
In the course of his arrest he suffered injuries so severe that the force medical examiner concluded that he was unfit to be detained. He was taken to hospital where he was found to have suffered multiple fractures of the head of the right femur and of the acetabulum, the ball and socket of the hip joint. This is a class of injury associated with head-on car crashes or falls from a significant height. But the claimant had been walking at the moment of arrest, and there is at present no evidence suggesting either that he has brittle bones or that anything happened following his arrest which is capable of explaining the injuries.
A complaint was made to the Independent Police Complaints Authority, but by August 2007 it had still not been resolved. On the eve of the third anniversary of the incident a writ was issued on the claimant's behalf seeking damages for trespass to the person and negligence. At that point of time it was generally believed that the limitation period for such claims was six years, but in January 2008 the House of Lords' decision in R v Hoare [2008] UKHL 6; [2008] 1 AC 844 established that it was three. The claim was thus issued just in time; but it was met with an application to strike it out pursuant to s.329 of the Criminal Justice Act 2003.
Section 329
This section, albeit contained in a criminal justice statute, is captioned “Civil proceedings for trespass to the person brought by an offender”. It provides:
329 Civil proceedings for trespass to the person brought by offender
(1) This section applies where–
(a) a person (“the claimant”) claims that another person (“the defendant”) did an act amounting to trespass to the claimant's person, and
(b) the claimant has been convicted in the United Kingdom of an imprisonable offence committed on the same occasion as that on which the act is alleged to have been done.
(2) Civil proceedings relating to the claim may be brought only with the permission of the court.
(3) The court may give permission for the proceedings to be brought only if there is evidence that either–
(a) the condition in subsection (5) is not met, or
(b) in all the circumstances, the defendant's act was grossly disproportionate.
(4) If the court gives permission and the proceedings are brought, it is a defence for the defendant to prove both–
(a) that the condition in subsection (5) is met, and
(b) that, in all the circumstances, his act was not grossly disproportionate.
(5) The condition referred to in subsection (3)(a) and (4)(a) is that the defendant did the act only because–
(a) he believed that the claimant–
(i) was about to commit an offence,
(ii) was in the course of committing an offence, or
(iii) had committed an offence immediately beforehand; and
(b) he believed that the act was necessary to–
(i) defend himself or another person,
(ii) protect or recover property,
(iii) prevent the commission or continuation of an offence, or
(iv) apprehend, or secure the conviction, of the claimant after he had committed an offence;
or was necessary to assist in achieving any of those things.
(6) Subsection (4) is without prejudice to any other defence.
(7) ……
(8) In this section–
(a) the reference to trespass to the person is a reference to–
(i) assault,
(ii) battery, or
(iii) false imprisonment;
(b) references to a defendant's belief are to his honest belief, whether or not the belief was also reasonable;
(c) “court” means the High Court or a county court; and
(d) “imprisonable offence” means an offence which, in the case of a person aged 18 or over, is punishable by imprisonment.
One cannot fail to notice that this section has nothing on the face of it to do with policing. In what one can call the Tony Martin situation – a sudden encounter with a crime—it gives the individual a defence of honest, even if unreasonable, belief in the need for his or her act; and it forfeits the defence only if the act was grossly disproportionate. There is nothing on the face of the section or in its shoulder-note which manifests an intention to afford the police a novel protection from claims by offenders for objectively unreasonable or unnecessarily violent arrests.
The section nevertheless inexorably covers police officers as well as civilians. Indeed, so far as counsel have been able to tell us, since it was brought into force in January 2004 it is only police defendants who have invoked it. The consequences should not go unnoticed. In place of the principle painstakingly established in the course of two centuries and more, and fundamental to the civil rights enjoyed by the people of this country—that an arrest must be objectively justified and that no more force may be used in effecting it than is reasonably necessary—the section gives immunity from civil suits, not confined to those involving personal injury, to constables who make arrests on entirely unreasonable grounds, so long as they are not acting in bad faith, and accords them impunity for using all but grossly disproportionate force in so doing. Conscious of art. IX of the Bill of Rights 1689, we say only that there is no indication that Parliament was aware, much less intended, that what it was enacting would have this effect.
The application to strike out the claim
The Commissioner's case was, and is, that the failure to secure permission in advance rendered the proceedings void. The claimant resisted his application to strike out the claim, contending that the requirement of permission was procedural and did not go to jurisdiction. Contingently on this argument succeeding he sought permission to proceed.
In a judgment delivered on 19 May 2008 Owen J held that the requirement of permission was directory, not mandatory. He accordingly went on to consider and to grant the claimant's cross-application for permission to bring the proceedings. He did so, first, because on the evidence before him a court could properly conclude that grossly disproportionate force had been used, and secondly because, for reasons which he set out, the balance of justice favoured the grant of permission. He ordered the Commissioner to pay the costs of the unsuccessful application to strike out, but made no order as to costs of the claimant's application for permission to proceed. The claimant had sought an order for claimant's costs in the case; the respondent simply for costs in the case.
The judge gave the Commissioner permission to appeal on the issue of jurisdiction alone. The Commissioner's application for permission to appeal against one element of Owen J's decision to grant permission to proceed (which of course arises only if the appeal on jurisdiction fails) has been adjourned by Richards LJ to this court, with the appeal to follow if permission is granted. If the Commissioner fails on these counts, the claimant seeks permission to cross-appeal on costs, contending that the proper order in relation to his own successful application for permission to proceed was claimant's costs in the case.
Is there evidence that the use of force was grossly disproportionate?
It is convenient to deal straight away with the Commissioner's adjourned application for permission to appeal. It assumes that the issue of proceedings without prior permission has not made them a nullity, and seeks on this footing to challenge Owen J's conclusion that there was evidence that the actions of the arresting officers were grossly disproportionate. If there was such evidence, Owen J's grant of permission is not challenged. The point is simple and is shortly made: the orthopaedic surgeon was, in his own words, completely perplexed by the severity of the injury, which he described as appalling, and was unable to explain it either by restraint or by use of a baton. For this very reason, counsel for the Commissioner argues, there was no evidence that the police had used grossly disproportionate force.
There are in our view two good reasons why permission should not be granted to pursue this head of appeal. One is that the issue was one of judgment on the available evidence, and Owen J made no discernible error in arriving at it. The other is that it is frankly hard to see, given the few stark facts summarised earlier in this judgment, how anyone could say that there was no evidence that grossly disproportionate force had been used. The fact that the surgeon has not been able to deduce or postulate a particular mechanism of injury does not mean that there was none. It means that the claimant's case is that the single event between his being ambulant and his suffering a complex fracture of the hip...
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