Dallison v Caffery
| Jurisdiction | England & Wales |
| Date | 1964 |
| Court | Court of Criminal Appeal |
Arrest - Detention in custody - Constable, powers of - Duty to act reasonably - Power to arrest on suspicion - Power to take arrested person for reasonable investigation of suspected crime before delivery to police station and magistrates for committal. - Malicious prosecution - Reasonable and probable cause - Question for jury - Honest belief - Question of honest belief in accused person's guilt not to be left to jury in absence of exceptional circumstances - Positive identification of accused by one witness - Evidence of other witnesses in favour of accused known to prosecution - Statements favourable to accused not disclosed to committing magistrates but made available to defence before trial - Whether “exceptional circumstances” - Whether duty on judge to seek help from jury on every matter of fact relevant to determination of reasonable cause. - Barrister - Prosecuting counsel - Committal proceedings - Satements in favour of defence - Prosecutor's duty.
At 12.35 p.m. on April 9, 1959, the defendant, a detective constable at Dunstable, in consequence of a complaint from a local solicitor's office, went to that office and talked with a 17-year-old typist who told him that £173 had been stolen from a closed, but not locked, safe at about 12.15 p.m. and who gave him a description of a strange man whom she had seen and spoken to on the landing outside the office immediately before the money disappeared. Later on the same day, the typist picked out from ten photographs of men known to the local police, whom her description of the strange man fitted, a photograph of the plaintiff D., a man living at Clapton, London, thirty-four miles away, who had a record of convictions for larceny and who had relatives living locally. The constable then talked to a relative of D. who said that D. had been in the locality on that day, though he later retracted that statement. Inquiries about D. were circulated, and on April 13, D. was detained at a London police station at 11.15 a.m., pending the constable's arrival from Dunstable at 3 p.m. The constable then told D. that he would be taken back to Dunstable in connection with the theft of £173. D. protested that on April 9 he had been doing house decoration at Clapton together with one “Jock,” but he could give no further information leading to “Jock.” The constable, before taking D. to Dunstable, took him to the place where he said he had been working, and there interviewed neighbours who stated that they had given D. a cup of tea between 10.30 and 11 a.m. on April 9; the constable then took D. to D.'s home, which was, with his consent, searched; but nothing was found. Only then did the constable take D. to Dunstable police station, arriving there at 6.35 p.m., when an identification parade was held and the typist picked out D. as the man she had seen on the landing; and, according to the constable, she reaffirmed that identification to him immediately after the parade. D. was detained in custody overnight, came before the magistrates formally on April 14, and was remanded in custody for a week. Meanwhile the constable obtained written statements from the couple who had given D. a cup of tea on April 9, and also a statement from the owner of the house where he had claimed to be working, who said that she had seen him there at 1.40 p.m. on April 9. The constable handed those statements to his superior officers, who passed them on to the prosecution solicitors.
On April 21, D. came before the magistrates, when the typist gave evidence of identification. The magistrates were not told of the statements supporting D.'s alibi, nor of the roundabout route by which he had been “conveyed” from London to Dunstable. The statements were, however, handed to D.'s solicitor immediately after the hearing.
When, on May 11, D. came up for trial at quarter sessions, counsel for the prosecution offered no evidence. A shorthand note recorded that counsel told the court that the typist “was shown a collection of photographs but the person she indicated was not the accused man.” Counsel also said that he understood that there was other alibi evidence, and that it was clear that there had been a mistake. D. was acquitted and received 50 guineas towards the costs of his defence.
In 1961 D. brought an action against the constable claiming damages for false imprisonment and malicious prosecution. At the trial before Havers J. and a jury the typist did not give evidence. The judge in his summing-up told the jury that the shorthand note must be wrong, and put one question only, namely: “Did [the typist] appear to be positive in her identification of D.?” The jury answered: “Yes”; and the judge held that there was no case to go to the jury, since there was no want of reasonable cause for the arrest and the prosecution. On appeal by D.:—
Held (1) on the alleged false imprisonment, that the constable had shown (a) that when he made the arrest he had reasonable cause, based on credible information, for suspecting that D. had committed the felony, and (b) that as a police officer he acted reasonably in delaying D.'s return to Dunstable while he made inquiries and searches with D.'s co-operation and consent; and he was not therefore liable for false imprisonment (post, pp. 398, 401, 404).
Per curiam. A constable has wider powers than the private person both in relation to making an arrest and also in delaying the taking of a suspected person to a police station or before a magistrate while he carries out such reasonable investigation as may be necessary into the matter, in the interests of the administration of justice, the test in each case being whether his conduct is reasonable in all the circumstances (post, pp. 397, 401).
Semble: Though the trial judge ought strictly not to have told the jury that the shorthand note of the prosecution counsel's statement to quarter sessions must be wrong, that statement, if made, could not be evidence reflecting adversely on the constable's conduct in this case, for it was not made on his behalf, nor authorised by him (post, pp. 397, 403).
(2) On the alleged malicious prosecution, (a) that the trial judge had not erred in leaving only one question on the typist's identification to the jury, for a judge performing his judicial duty of determining whether, in the interests of the administration of justice generally, there was want of reasonable cause for a prosecution, was only required to seek help from the jury on such points as were necessary for that determination (post, pp. 398, 399, 402); (b) that the judge was right not to leave the question of honest belief to the jury, for that question should only be left to the jury where there were exceptional circumstances; and the facts that at the committal proceedings the constable had not told the magistrates of the written statements tending to support D.'s alibi nor of the devious route by which D. had been brought to the police station were not “exceptional circumstances” but could be explained and justified in this case on grounds other than want of honest belief; (c) that the judge had correctly ruled that there was no want of reasonable cause for the arrest and prosecution of D. (post, pp. 399, 400, 401, 403, 406).
Per Lord Denning M.R. If a prosecuting counsel or solicitor knows of a credible witness who can speak to material facts which tend to show the arrested person to be innocent, he should either call the witness himself or make his statement available to the defence (post, p. 399).
Per Diplock L.J. A prosecutor is under no duty to place before the court all the evidence known to him, for his duty is to prosecute and not to defend. If he happens to have information from a credible witness which is inconsistent with the guilt of, or helpful to the accused, he should make such witness available to the defence; but he is under no duty to resolve a conflict of evidence from apparently credible sources, for that is the function of the jury at the trial (post, pp. 405, 406).
APPEAL from Havers J. and a jury.
On September 12, 1961, the plaintiff, Ernest George Dallison, issued a writ against the defendant, Patrick Joseph Caffery, then a detective constable at Dunstable police station, Bedfordshire, claiming damages for false imprisonment and malicious prosecution.
His statement of claim, which was first delivered on September 19, 1961, and was followed by a defence delivered on November 22, 1961, which was later amended and redelivered on June 18, 1963, and in its final pre-trial form alleged as follows: (1) At all material times the defendant was a detective constable of the Bedford-shire Constabulary stationed at Dunstable in the County of Bedford. (2) On April 13, 1959, the defendant caused an officer or officers of the Metropolitan Police for the County of London to arrest the plaintiff [Dallison] at 12 noon and to hold him in custody at Old Street police station in London. Thereafter at about 3 p.m. on the same day at that police station the defendant himself took Dallison into his own custody, took him in a police motor car to Dallison's fiat at 64 Thistlewaite Road, Clapton, London, wherein together with another police officer he carried out a search; thereafter the defendant took Dallison in the police motor car to Dallison's place of work, namely, 40 Millfields Road, Clapton, where the defendant and the other police officer made inquiries relating to Dallison, and subsequently transported him in the police...
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