Cumming and Others v Chief Constable of Northumbria Police
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE WARD,Lord Justice Latham,Lord Justice Brooke |
| Judgment Date | 17 December 2003 |
| Neutral Citation | [2003] EWCA Civ 856,[2003] EWCA Civ 1844 |
| Docket Number | Case No: B3/2003/0420,B3/2003/0420 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 December 2003 |
[2003] EWCA Civ 1844
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NEWCASTLE COUNTY COURT
(HHJ HEWITT)
Royal Courts of Justice
Strand,
London, WC2A 2LL
The President Of The Family Division
Lord Justice Brooke and
Lord Justice Latham
Case No: B3/2003/0420
Mr David Wilby, QC & David Callan (instructed by Thompsons) for the Appellants
Mr Simon Freeland, QC & Toby Wynn (instructed by The Chief Constable of Northumbria) for the Respondent
Between the 15 th and 18 th June 1999, the appellants were separately arrested by the Northumbria Police on suspicion of perverting the course of justice. They were taken to the police station, questioned and released. They were all innocent. They were of good character; and there is no doubt that their arrest caused each of them distress, fear and humiliation. In these proceedings they claim damages, including exemplary damages, for wrongful arrest and false imprisonment. On the 27 th January 2003, HHJ Hewitt dismissed their claims. He held that the police officers in question had acted in good faith, had, objectively, reasonable grounds for suspecting that each of the appellants had committed an arrestable offence, namely perverting the course of justice, and that their decision to arrest was a proper exercise of the police officers' discretion. The appellants appeal on the grounds that the judge was wrong in both latter respects.
There was little dispute about the background facts. The appellants were employed at the relevant time by the South Tyneside Metropolitan Borough Council in its Warden Services department in South Shields. In particular they were concerned with monitoring the recordings made by the town's closed circuit television cameras. The recordings were held on two types of tape. The first was what was known as the "spot" tape for each camera, also known as the "red spot" tape, because it was always identified on its spine in red ink. The second was what was known as the "multiplex" tape which held the recordings from all the cameras. In the event of any incident, the warden who was monitoring the relevant "spot" tape at the time would report the matter to the police and ensure that the "spot" tape was made available for the police if the police required it for forensic purposes. The "spot" tape could then be used as evidence with the master tape being available to check the reliability and integrity of the "spot" tape. This system was clearly an important tool in the police armoury for the purposes of keeping public order and the prevention or detection of crime.
At 11.10 a.m. on Saturday 22 nd May 1999, a colleague of the appellants, Alan Starbuck, saw on one of the video screens, a young man trying the doors of cars. He contacted the police in accordance with the practice to which I have already referred, as a result of which Police Constable Ward went to the scene and arrested a young man. On Tuesday 25 th May, the same police officer went to the video room in order to view and take possession of the relevant "spot" tape which should have run from 1.00 a.m. on the 22 nd May to 1.00 a.m. on the 23 rd May. The tape which she was handed was unusual in two respects. First, it had been recorded over: it commenced with a recording which started according to the timer, at 16.19 on the 22 nd May, continued to 1 a.m. on the 23 rd and then returned to the events of the morning commencing at 11.19, that is a few minutes after the relevant incident. Second, as the judge found, the writing on the spine, invariably in red, was in blue, which made the police officer suspect that it was a copy. Police Constable Ward then asked to see the "multiplex" tape only to find that this tape had also, in her words, been "tampered with"; and the incident was no longer visible.
Understandably, both the police and the appellants' employers were extremely concerned with what appeared to have been deliberate interference with the tapes. The over taping on the "spot" tape could perhaps have been accidental; but the co-incidence of the removal of the relevant incident from the "multiplex" tape suggested a deliberate attempt to destroy the evidence of a crime. A meeting of the police and the appellants' employers took place on the 27 th May at which it was decided that the employers would investigate, giving the appellants and their colleagues an opportunity to come forward and give their accounts. The judge found that the police reasonably believed that the employers intended to interview each of the staff individually. Unhappily, no such interviews took place.
In early June, the police were told by Mr Marriott on behalf of the employers that their investigation had not borne fruit. Detective Sergeant Richards was put in charge of the police investigation, assisted by Police Constable Ward who had been involved in the original incident and Police Constable Abdullah. They made inquiries to determine whether or not there was any link between the young man who had been arrested, and any member of staff. No such link could be found. They then compiled from the duty rota a list of those employees who would have had the opportunity either to have been involved in the over taping and tampering or who might have been present and therefore assisting when that happened. By this and other means, they eliminated all members of staff apart from the appellants and Mr Starbuck. The police officers gave evidence, which the judge accepted, that much time was taken examining the records of telephone calls made during the relevant period and in enquiries of the technical unit at the Force Headquarters, the Forensic Science Laboratories at Wetherby and at Victoria in London, as to whether a time could be established at which the tapes had been tampered with. Somewhat surprisingly, they obtained no assistance from those sources, a point to which I shall return later.
Detective Sergeant Richards and Police Constable Ward together with Police Constable Abdullah therefore decided to arrest the five appellants and Mr Starbuck. Having heard the evidence of Detective Sergeant Richards and Police Constable Ward, the judge concluded that the reason for deciding to arrest them, as opposed to taking any other form of action, such as seeking to interview them voluntarily, was that the police wanted to exert maximum pressure to get the confession that had eluded management. The appellants were arrested at different times between the 15 th and 18 th June, taken to the police station and interviewed under caution. Although it should be said that the arrests and interviews were conducted in the main in a civilised and restrained way, the appellants were inevitably shocked. It is accepted that they were all innocent and upstanding citizens. Their claim for damages is based upon the psychiatric consequences to each of them of their experience.
Ultimately, the police were satisfied that the "spot" tape was the original tape, and gave a reliable indication of when the "spot" tape was recorded over, namely 16.19 on the 22 nd May. That coincided with the time that Mr Starbuck was on duty. He was interviewed on the 21 st July and eventually admitted that he had inadvertently rewound the "spot" tape and recorded over it. He denied having tampered with the "multiplex" tape. This aspect of the matter therefore remains unresolved.
The judge directed himself that he should ask the three questions formulated by Woolf LJ in Castorina –v—Chief Constable of Surrey [1996] LG Rev Rep 241 at page 249:
"(a) Did the arresting officer suspect that the person arrested was guilty of the offence;
(b) were there reasonable grounds for that suspicion;
(c) did the officer exercise his discretion to make the arrest in accordance with Wednesbury principles"
As to the first question, the judge said:
"It is argued for the claimants that the police did not in fact suspect, taking each individual separately, that that individual was guilty of that offence. On the basis of what was known at the time of the arrest, it is argued that only one or possibly two persons could have been involved: therefore either four or five of those arrested must have been, as a matter of logic, known to have been innocent. The police, it is said, had no suspicion as to who had been involved with the tape or tapes and simply performed a blanket arrest for reasons of expediency, in other words to get a confession. Whilst Mr Callan's argument has a certain logical attraction, it fails because it is divorced from the reality of everyday policing in general and this case in particular. Although this case is somewhat unusual because of the numbers involved, it is not unusual for an arresting officer to suspect a number of persons of committing an offence whilst at the same time appreciating that not all whose suspected will prove to be involved. As stated above, the answer to this first question depends on the court's finding of fact as to the officer's state of mind. Having heard the testimony of D. Sgt. Richards and P.C. Ward I am satisfied that, whilst keeping an open mind as to the numbers of those involved, they were entitled to and did suspect that one or more of the 6 had deliberately and knowingly interfered with the tapes possibly with the assistance or connivance of others."
As to the second question, he rejected the submission that there were no reasonable grounds to suspect that the offence of perverting the course of justice had been committed. In particular he rejected the argument that obvious lines of enquiry had not been...
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