Anthony Owens v Chief Constable of Merseyside Police
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 11 November 2021 |
| Neutral Citation | [2021] EWHC 3119 (QB) |
| Docket Number | Appeal No: 8 of 2021 |
| Court | Queen's Bench Division |
[2021] EWHC 3119 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER HIGH COURT APPEALS CENTRE
1 Bridge Street
Manchester, M60 9DJ
Mr Justice Fordham
Appeal No: 8 of 2021
Claim No: F68YJ572
Henry Gow (instructed by James Murray Law) for the Appellant
Michael Armstrong (instructed by Merseyside Police) for the Respondent
Hearing date: 26/10/21
Final Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This is a case about what constitutes an “intimate search”, as statutorily regulated by sections 55 and 65 of the Police and Criminal Evidence Act 1984 (“PACE”). It also raises questions about what is said about “strip searches” and “intimate searches” in the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (“Code C”) and the College of Policing's Authorised Professional Practice on Detention and Custody: Control, Restraint and Searches (“the APP”). The case came before me as an appeal from the decision of HHJ Sykes (“the Judge”), striking out parts of the Appellant's pleaded claim. Permission to appeal was granted by Robin Knowles J (“the PTA Judge”). The hearing before me was in person.
The Appellant has brought a damages claim in the Liverpool County Court against the Respondent. The trial is to take place between a judge and jury and is now fixed for 21 February 2022. The previous fixture, for February 2021, was vacated by the Judge. The claim arises out of the way in which the Appellant was treated by police officers in May 2018. Having said that it was to be “assumed … that the [Appellant] will establish the facts as pleaded”, the Judge – in her strike judgment – summarised the pleaded facts as follows:
on arrival …, the [Appellant] was not taken to the Custody Desk, but was instead taken to the back of the police station. The [Appellant] was subject first to a strip search and during the course of the strip search [he] was ordered to: remove his boxer shorts; separate his penis and testicles; pull the foreskin of his penis back; turn around, lean over and separate his buttocks .
It is common ground that disputed factual questions are for determination at the trial. That includes whether (as Mr Gow confirms is being claimed by the Appellant) a purpose of being “ordered” to “lean over and separate his buttocks” was to enable a visual examination of the inside of the Appellant's anus. The Appellant's claim alleges: misfeasance in public office; unlawful imprisonment; assault; trespass to the person; personal injury; and breach of the Human Rights Act 1998 (“the HRA”) by action incompatible with his Article 3 rights (the right not to be subjected to inhuman or degrading treatment) and/or with his Article 8 rights (the right to respect for private life). Claims made include: breach of PACE section 2; malicious falsehoods; unjustified and unlawful search; flagrant and deliberate contravention of Code C; aggravated and exemplary damages. A recurrent feature of the pleaded particulars was the contention – which the Judge struck out – that this was an “intimate search”. Another feature – which the Judge left intact – is the contention that the police officers “breached the requirements of Annex A of Code C”. It is known and understood that the Appellant's team intends also to argue breach of the APP, but reference to the APP does not currently appear in the pleaded particulars of claim. It is common ground that the HRA claims raise questions as to adherence with ‘prescribed procedures’ (as to which, see §21 below).
The Respondent's pleaded defence contends that this was a lawful “strip search”. The defence pleads that, having been “asked” to remove his trousers and underwear, the Appellant was then “asked to separate his penis and testicles, to pull his foreskin back and then to turn around and lean over, separating his bottom cheeks”. It adds: “People have been known to secrete class A drugs in these areas”. The defence acknowledges that the Appellant was not charged or convicted with any offence arising out of the action taken against him.
The Respondent made an application to strikeout – or alternatively for summary judgment in its favour in relation to – those parts of the Appellant's particulars of claim which referred to the search as an “intimate search”. Mr Armstrong emphasises that the focus of the strikeout application was squarely – and was only ever intended to be – on whether this was an “intimate search” as defined by PACE section 65. At a hearing on 6 January 2021, for reasons given in a judgment delivered ex tempore, the Judge acceded to the Respondent's application. She held that, applying the definition in PACE section 65, as interpreted by the Court of Appeal in R v Hughes [1994] 1 WLR 876, the search described by the Appellant did not “constitute an intimate search”. That was because “there was no physical intrusion into a body orifice by physical examination”.
The ‘wrong in principle’ issue
The PTA Judge granted permission to appeal on the basis that the Appellant's case as to the substance – that is, PACE section 65 and Hughes – met the threshold of arguability. But he also raised this question:
… regardless of the position on the substance, in this particular case where there is to be a trial of the remainder of the case it is questionable on principle whether it is desirable that the point in issue on the strike out/summary judgment application should be decided separately from and in advance of the trial and decisions on the other points in issue, and free of the context of the trial and those decisions. On the hearing of the appeal the parties should address this question first, but should also discuss the question between themselves in advance of the hearing of the appeal .
This envisaged that the ‘wrong in principle’ issue would be dealt with as a first point, in the light of any arguments made about it, which is what I will now do.
It is common ground that strikeout (or summary judgment) could in general be appropriate, if a question of law could be answered – independently of any disputed facts – in circumstances which were encapsulated by Lewison J (as he then was) in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at §15vii. That ‘grasp the nettle’ passage describes circumstances where there arises:
… a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better .
The Judge took Lewison J's ‘grasp the nettle’ approach, explaining:
The parameters of [the] issue are fairly narrowly defined. The issue for the court today to consider is whether or not the case, as pleaded by the Claimant, amounted to an intimate search, as opposed to a strip search. In that regard, I accept the submissions of the Defendant's counsel that the court today is in as good a position as the trial judge in dealing with that narrow issue; in other words, there can be no further issues of evidence, which will be available to the trial judge, which are not available to me today, and it is a matter of construction of the legal position .
Mr Gow did not submit that it is wrong in principle to ‘grasp the nettle’: where an issue of law will become ‘decoupled’ from other linked issues to be ventilated at a trial; nor where the ‘decoupled’ issue might give rise to an appeal; nor when the timing is relatively close to the date fixed for the trial; nor by reason of the interrelationship between “intimate search” under PACE section 65 and questions which remain as to breach of Code C and/or the APP. His argument was more nuanced.
Mr Gow's nuanced argument, on the ‘wrong in principle’ question raised by the PTA Judge, focused on different ‘appeal routes’. He submitted that it was ‘wrong in principle’ in this case for the county court to use the strikeout power, because: (i) if it were to be determined at trial, the conclusion on the issue of law would be appealable ‘direct’ to the Court of Appeal; whereas (ii) if determined on strikeout, it would be appealable only ‘indirectly’ to the Court of Appeal (appeal being to the High Court and then to the Court of Appeal). In the present case – says Mr Gow – where Hughes looms large, access to the Court of Appeal and the ‘route of appeal’ to that Court are especially significant. On that basis – argues Mr Gow – it was ‘wrong in principle’ to ‘grasp the nettle’ and deal with the issue of law on a strikeout. Instead, the issues should all have been dealt with, together, at the trial. None of this was submitted to the Judge. But I do not hold that against Mr Gow: he was giving me an answer on a new topic, raised by the PTA Judge.
I cannot accept Mr Gow's ‘appeal routes’ argument. If his different ‘appeal routes’ point were a reason why strikeout (or summary judgment) in the county court were ‘wrong in principle’, there would surely be some rule or practice direction, case-law or commentary saying so (I was shown none). The ‘appeal routes’ argument would significantly restrict the ‘grasp the nettle’ principle. The logic of that principle carries with it the prospect of appealable determinations on issues of law...
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...out and give an opportunity to make such an amendment. 23. In the recent case of Owens v Chief Constable of Merseyside Police [2021] EWHC 3119 (QB) Fordham J stated [at §6] that it may be appropriate for the court to “grasp the nettle” on an application to strike out and determine an issue......
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