D.h. Edmonds Ltd (Plaintiff v Sussex Police Authority (Defendant
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KERR,LORD JUSTICE BALCOMBE,SIR ROUALEYN CUMMING-BRUCE |
| Judgment Date | 06 July 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0706-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/0672 |
| Date | 06 July 1988 |
[1988] EWCA Civ J0706-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE KENNETH JONES)
Royal Courts of Justice
Lord Justice Kerr
Lord Justice Balcombe
and
Sir Roualeyn Cumming-Bruce
88/0672
1985 D No.600
MR. W. POULTON (instructed by Messrs. Samuel McCleery, Solicitors, London, WC2A 1NB) appeared on behalf of the Plaintiff (Appellant).
MR. A. RAWLEY Q.C. and MR. R. RAINS (instructed by Messrs. Sharpe, Pritchard, Solicitors, London WC1V 6HG, agents for Mr. G.C. Child, Solicitor, Lewes, East Sussex), appeared on behalf of the Defendant (Respondent).
This is an appeal from a judgment of Mr. Justice Kenneth Jones on 6th November 1986, whereby he dismissed the claim of the plaintiffs, who are jewellers in Brighton, for compensation under the Riot (Damages) Act 1886.
At about 10 o'clock in the morning of 2nd August 1984 there was a smash-and-grab raid on the plaintiffs' premises by three or four men. It took only a few minutes. A substantial amount of jewellery was snatched by smashing a plate glass window with a sledge hammer. The plaintiffs claimed compensation under the Act shortly thereafter. That was rejected by the Sussex Police Authority, the Authority liable under the Act, in January 1985. That is how the present action arose.
The judge was only asked to decide the question of liability. He held that in the light of the facts there was no liability on the wording of the statute.
We are concerned with section 2 (1) of the Riot (Damages) Act of 1886 which, so far as material, is in the following terms:
"Where a house, shop, or building in any police district has been injured or destroyed, or the property therein has been injured, stolen, or destroyed, by any persons riotously and tumultuously assembled together, such compensation as hereinafter mentioned shall be paid out of the police rate of such district to any person who has sustained loss by such injury, stealing or destruction."
There then follow provisions dealing with the assessment of the compensation and the manner of making claims under the Act.
I take the facts from the detailed judgment which has in no way been criticised in its treatment of the evidence. The judge referred to the locality of the scene of the attack, as shown by some photographs which were put before him. They show a narrow lane called Meeting House Lane, in the Lanes district of Brighton. It has a high wall on one side and some nice looking shops, including the plaintiffs' shop, on the other side. At page 3 A of the transcript the judge said:
"What had happened was that two men, wearing balaclava helmets to cover their faces and armed with sledge-hammers, had come up the lane….they had been accompanied by a third man wearing sunglasses and carrying an industrial nail gun. They attacked the window….and then ran off with the stolen jewellery (dropping some of it as they left) back down the lane to the sea front. They succeeded in stealing a large quantity of jewellery. They left behind also, a sledge-hammer and the nail gun….and, in a van nearby, as I understand it, there was discovered subsequently a further sledge-hammer and a further nail gun….
"There were undoubtedly three men involved in this criminal escapade. The presence of the four instruments gives rise to the inference that there was a fourth man present as well, but that is of no importance. I have not had described to me the exact function of the nail guns, but it is clear that, when operated lawfully, they are held as a gun is held, by the butt, and indeed when not used for their lawful purposes but held in the same way, they were likely to give, to an uninformed bystander, the very strong impression that the person holding the instrument was in fact armed with a gun. So much for what these criminals did."
He then referred to the evidence of some nine witnesses, called on behalf of the plaintiffs. The defendants called no evidence. The judge made it clear that he accepted the evidence of all the witnesses. Five of them came from inside the plaintiffs' shop and four from other nearby premises, and all of them saw, to a greater or lesser extent, what was happening. The judge summarised the relevant parts of their evidence, and it is sufficient to set it out as follows.
Miss Miller, the manageress of the shop, said that she
"heard a tremendous and indescribable noise, which she said was like an army running up the lane. She pressed the panic button in the shop, there were people running about in the lane outside, shouting and screaming, and children were screaming. Someone said, 'it's a said', and then there was a terrific thud on what they call in the shop, 'the diamond window'. She said that shouting and screaming was coming from her staff, who were terrified. The female staff in particular had become hysterical. She herself was shouting and screaming."
Pausing there, the "terrific thud" was the thud of at least one of the sledge-hammers; they were long handled ones, used to break through the very strong plate glass window which protected this shop. This can be seen from the photograph. It must have taken a great deal of force, and caused a great deal of noise, to enable the raiders to make a hole sufficiently large to put a hand through and grab some of the contents.
The judge then referred to the evidence of another witness as follows:
"….at the beginning there was an awful noise coming up the lane, screaming and shouting something like a war cry and she could not imagine what it was about…. (she) saw the two men in balaclava helmets and the man with the sunglasses and a woolly hat. She said that he had a gun and seemed to be guarding the two men who were pounding the window, and she saw people trying to walk past the robbers and they were being pushed into the window of the shop opposite, she thought by this man in the middle who had the gun. She said she could see outside there were people screaming. The robbers were shouting for them to get away; people saying, 'They've got a gun'. There was turmoil and chaos and people being hysterical."
Then the judge went on:
Two of the men who were in the workshop above the shop gave evidence and told me that they heard an almighty noise of screams and shouting and smashing. They ran down into the shop",
and one of the men said that when he got outside one of the robbers pointed what he thought was a gun at him and he stepped back into the shop.
Another young man told the judge that
"all the girls in the shop were milling around and screaming, they were upset"
and he referred again to the gun.
Finally, there was another lady, a witness who worked in an adjoining shop, who said that she
"heard a terrible smashing, banging and shouting noise", and she ran down towards the shop.
That is a picture of the evidence. One can see how the scene began and what it involved until the men ran away. It obviously began with the men stealthily driving up in a van and getting out. From that moment onwards they were undoubtedly shouting; there was a reference to war-cries and noise intended to frighten the bystanders. There was then more noise when they used the sledge-hammers on the window. But the main noise undoubtedly came from the terrified spectators. So it was, as the judge said, a scene of great commotion; I think he used the word "chaos".
In this court, in the same way as in the court below, the argument has turned on the expression "persons riotously and tumultuously assembled together". The judge held that "tumultuously" must be construed cumulatively to "riotously", and that it could not be read as if the conjunctive word were "or".
Mr. Poulton, who argued this appeal with great lucidity, conceded that the judge was right in that approach. It is clear that one cannot read "and" as "or" in this case. Although we were rightly not referred to the earlier legislation in any detail, it appears that an Act of 1714 had contained the first reference to a statutory riot, from which we derive the expression "reading the Riot Act". In that Act the word "and" had been used between "riotously" and "tumultuously". For some reason that became "or" in an Act of 1817. But that was repealed in 1827, and "or" was replaced by "and". This was retained in the 1886 Act with which we are concerned. The history of the legislation was to some extent summarised in an important decision by Mr. Justice Lyell, on which the judge relied, to which I come later.
However, Mr. Poulton submitted that the judge erred in two respects. First, he took the view, following Mr. Justice Lyell's decision, that the reference to "tumultuous" connotes an assembly of some considerable size, greater than the minimum number of persons who suffice for a riot, which is three. Secondly, and subsidiarily, Mr. Poulton submitted that the judge erred in not adopting an alternative meaning of the word "tumultuously" in this context. He said that in so far as "tumultuous" involves noise, which it undoubtedly does to some extent, it was sufficient if the assembly in question causes bystanders to behave tumultuously, in the sense of making a lot of noise, and that it is not necessary that the persons assembled together should themselves be the source of the noise.
Although it was a subsidiary point, it is convenient to take it first, because in my view it can be disposed of quite shortly and rejected, as held by the judge.
He said:
"Whose conduct is it that must merit...
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