Alexis Karalis v The Chief Constable of Derbyshire Constabulary
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 19 June 2023 |
| Neutral Citation | [2023] EWHC 1496 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QA-2022-BHM-000003 |
[2023] EWHC 1496 (KB)
Mr Justice Freedman
Case No: QA-2022-BHM-000003
IN THE HIGH COURT OF JUSTICE
BIRMINGHAM DISTRICT REGISTRY
ON APPEAL FROM THE COUNTY COURT AT CHESTERFIELD
HHJ COE KC
Birmingham Civil Justice Centre
The Priory Courts, 33 Bull Street
Birmingham, B4 6DS
Ms Una Morris and Mr Alex Schymyck (instructed by DPP Law) for the Appellant
Ms Beatrice Collier (instructed by East Midlands Police Legal Services) for the Respondent
Hearing dates: 14, 23 and 24 February 2023
Approved Judgment
This judgment was handed down remotely at 12noon on 19 June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
I Introduction
By way of a Claim Form issued on 27 June 2017, the Appellant brought proceedings against the Respondent, claiming damages, including aggravated and exemplary damages, for false imprisonment and assault and battery, in respect of his arrest and detention on 10 June 2014.
For various reasons, including the pandemic, the trial of the action was listed, vacated and relisted on a number of occasions. It finally took place between 24 and 31 January 2022 before Her Honour Judge Coe KC (“the Judge”). From 24 January 2022, the Judge sat with a jury, until the jury was discharged on 28 January 2022 by consent. On 31 January 2022, the Judge sat alone, and the trial concluded in an order of the same date.
The Appellant succeeded in false imprisonment in a limited respect, specifically in relation to a failure to comply with section 28 of the Police and Criminal Evidence Act 1984 (“PACE 1984”), as although he had been informed that he was under arrest, the arresting officer, PC Sanders, had failed to provide him with the grounds for the arrest. It was conceded by the Respondent only following PC Sanders' evidence that the arrest was therefore unlawful. On 31 January 2022, the Judge found that the Appellant was unlawfully detained for a period of 45–50 minutes and awarded him the sum of £750.
In all other respects, the Appellant did not succeed in his claim in false imprisonment. His assault and battery claim, which was wholly parasitic on the false imprisonment claim and therefore depended on a finding that he was unlawfully detained at the material time, was dismissed.
In respect of costs, the Judge ordered that the Appellant pay 80% of the Respondent's costs and the Respondent pay 20% of the Appellant's costs of the action, to be assessed by way of detailed assessment, if not agreed.
Although permission to appeal was refused by the Judge and on paper, permission was granted by Mr Justice Martin Spencer at an oral hearing on 27 October 2022 on four grounds to which reference will be made.
II The evidence relating to the complaint
On 24 May 2014, an offence of rape was reported to the police. The Complainant, a woman, had been with a friend, another woman, when they had got into a vehicle with two men, who were previously unknown to them. The Complainant alleged that she had been digitally penetrated by the passenger of the vehicle who was wearing a red top and then orally and vaginally raped by him in a caravan. The friend made a witness statement on the same day to the police in which she said:
“The male in the red top told me to get in the front and he got into the back with [the Complainant]. The driver I would describe as a white male of 5′6″ to 5′7″ in height and between 23 to 24 years of age. He had unkempt shaven hair possibly a number 2, I can't recall his clothing. I didn't notice any distinguishing features, he had an accent and I thought he sounded like he was from Poland but as he drove he said he was from Russia.
The male in the red jumper was also white he was shorter than the other male but I'm not sure by how much he had blonde hair also shaven possibly between a 2 or a 3. He was of average build and wore a red short sleeve top with writing on the front. Don't know what it said. I think he was wearing jeans but I'm not 100% sure. He did try and tell me his age but I wasn't listening properly and so he told [the Complainant] he was 22.
…as we drove over the bridge the two males spoke with each other in there (sic) own language. They did try and speak with us in the car but with a combination of their accents and the drink I didn't understand them.”
On 25 May 2014, a statement was taken from the Complainant who said the following:
“…they were talking in their own language to each other I said where are you from and they said Russia so I'm guessing they're Russian but they could be lying about it. I don't know.
…
[The Complainant] described the passenger male who did all this to her as white, about 22/23 years old, 5′3″ or 5′4″ tall, skinny build with blonde short hair. She stated he either had gaps or dark patches between all of his teeth and was wearing a red short sleeved round necked top with white writing on it, blue jeans and she thinks he was wearing a gold chain around his neck.
[The Complainant] stated that she couldn't remember what underwear or footwear the male was wearing. She stated his hair was shorter around the sides than it was on top.
[The Complainant] described the driver of the vehicle as having white, slightly tanned skin, approximately late 20s or 30 in age with brown hair, dark trimmed facial hair and wearing a blue top, dark coloured jeans and a chain around his neck. She stated he was a bigger build than the passenger, approximately 14/15 stated he was bigger build than the passenger, approximately 14/15 stone in weight. She stated he was carrying a set of keys and there were 2 car keys with the buttons on and the plastic bit was black, a couple of other keys and a couple of key rings.”
The transcript also includes the following:
“PC WOOD I know you said you don't know what this accent was but could you say whether it was local or a foreign accent?
[the Complainant] It was foreign.
PC WOOD Can you expand on that anymore?
[the Complainant] Well I've had a Polish friend before and it sounded different to her accent.”
On 27 May 2014, DCP made a statement about the sale of BMW vehicle on 20 May 2014 in which he described selling a BMW vehicle. Three men were identified by him as being involved in the purchase. There was a male in his late 20s shorter than 6 foot and quite stocky with dark short hair. He had an accent and spoke with broken English, but he might have been Polish. In a statement on 6 June 2014, he stated that he had been shown a photograph which he believed could have been the male from his previous statement. “I can only state this as being 50% certain.”
On 7 June 2014, two witness statements were provided by NT. In the first statement, she discussed a man by the name of Alket, and she also said that she knew the Appellant, and she exhibited a photograph of Alket and the Appellant. In the second statement, she referred to CCTV around the time of the rape and said that “the male on the left of the picture is ALEX. I have seen him wearing the red hoody in other photographs before and red is a colour he wears a lot. I can also tell it's Alex due to the way he is standing and his hair style…The second male in the photo is ALKET…”
On 7 June 2014, DS Judge, the Senior Investigating Officer (“SIO”) completed a Police National Computer (“PNC”) Circulation Document, identifying the Appellant in his previous name, being wanted for the offence of rape. The document stated:
“Forensic Evidence (Not to be disclosed)
BMW 323 T391 CNV used during the commission of the offence.
Fingerprint identification – Exhibit SAM/32 recovered from the ridge detail trim on interior of rear nearside near to handle inside BMW 323 T391 CNV. Positively identified to a set of fingerprints held on the National Fingerprint Database in the name of Alexandhros West-Andrigianakis reference 126937/05G”
The corresponding entry on the Occurrence Enquiry Report, completed by DS Judge, stated:
“…Circulate Alexandhros WEST-ANDRIGIANAKIS as wanted as a result fingerprint ID inside BMW motor vehicle At 11:55 I made this decision based on the information currently available. Intelligence obtained from Staffordshire Police detailing his involvement in a [matter] on the 27/04/2013. Rationale Custody image obtained strong resemblance to male featured on cctv wearing red top. Statement from [DCP] who believes image 50% resemblance to Male 2 mentioned in statement. Fingerprint evidence inside vehicle used during the commission of the offence. Stranger Rape male suspects present significant risk to general public. Potential to recover clothing, mobile phone and other evidence connected to the offence. Historically identification procedures (VIPER) more successful when completed nearer the offence date Negative Presence in vehicle does not directly link to rape offence May have explanation for presence of fingerprint, received lift in vehicle or other explanation”
DS Judge also completed a High Priority Arrest Request document (“the HPAR”). It referred to the rape and how the enquiries had identified Alexandhros West-Andrigianakis as a suspect. It identified the Appellant's date of birth and last known address and stated that the Appellant had been circulated as wanted on the PNC. It referred to the fact that the Complainant had identified the male who raped her as “ as white pale complexion, foreign, early 20's and 5′3″ 5′4″ in height. He was skinny build and had short blond hair. He had gaps or dark patches in between his teeth. He was wearing a red round necked T-shirt and light coloured jeans. The driver of the vehicle was white but tanned, late 20's early 30's and around 14/15 stone. He had dark facial hair and was wearing a blue top and dark jeans.”
The HPAR...
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