Al Fayed and Others v Commissioner of Police of the Metropolis and Others
| Jurisdiction | England & Wales |
| Judgment Date | 13 August 2002 |
| Date | 13 August 2002 |
| Court | Queen's Bench Division |
Court and Reference:High Court, Queen's Bench Division, HQ 2001 No 01X02465
Creswell J
Appearances: I Croxford QC, P Marshall and I Newman (instructed by Lewis Silkin) for the Claimants; S Miller QC, D Macleod, and P Gibbons (instructed by The Metropolitan Police Solicitor) for the 1st, 2nd, 4th and 5th defendants; S Freeland QC (instructed by Rowe Cohen) for the 3rd defendant.
Whether the arrests of the Claimants had been lawful
The claimants, who were involved in various ways with Harrods, sought damages in false imprisonment. On 4 August 1996 an article in the Sunday Times referred to documents, and contained a photograph of a paying in slip, that were kept in a safety deposit box kept at Harrods by Tiny Rowland. On 14 May 1997, Mr Rowland alleged that the claimants had broken into and interfered with the contents of the safety deposit box. In the course of their investigation, the box was opened by officers in controlled conditions on 5 June 1997. In November 1997, Mr Rowland issued proceedings against Mr Al Fayed in the Chancery Division for damages for conspiracy and/or inducement of breach of contract and/or inducement of breach of bailment and for conversion and/or trespass to goods. On 12 January 1998, as a result of those proceedings, the police were made aware that Mr Al Fayed and others had admitted that the safety deposit box was opened on 3 separate occasions and that they had received copies of documents that had been contained within the box.
In the course of correspondence between the Claimants' solicitors and the police, the latter indicated that they wished to arrest and interview the Claimants; the latter indicated that they would agree to be interviewed voluntarily and so there was no need to arrest them. However, on various dates in March 1998 the Claimants were arrested and interviewed before being released without charge. On 20 July 1998 the claimants were informed that no criminal proceedings were to be initiated.
They then commenced civil actions against the Commissioner and individual officers involved in the investigations and arrests, arguing that the arresting officers could not reasonably suspect that any of the individual claimants were guilty of theft or criminal damage, or that the discretions to arrest were exercised unreasonably and so unlawfully. Exemplary damages were sought.
Introduction
1. The first claimant ("Mr A1 Fayed") is the Chairman of the Harrods Group of Companies.
2. The second claimant ("Mr Macnamara") was until 1987, when he retired, a Detective Chief Superintendent of the Metropolitan Police. From January 1987 Mr Macnamara was the Director of Security of the House of Fraser Group, from June 1994 the Director of Security of Harrods Holdings Ltd and from August 1996 the Director of Security and a Member of the Board of Harrods Ltd.
3. The third claimant ("Mr Griffiths") was at all material times the Private Secretary to Mr Al Fayed. His claim is no longer pursued.
4. The fourth claimant ("Mr Handley-Greaves") was at all material times the Head of Personal Protection for Mr Al Fayed.
5. The fifth claimant ("Mr Dalman") was at all material times the Manager of the Safe Depository located in Harrods Department Store, Knightsbridge.
6. The sixth claimant ("Mr Allen") was between 1 August 1987 and February 1996 the Senior Security Manager (uniform) of Harrods Ltd.
7. The safe deposit was originally part of Harrods' Bank but was transferred to Harrods Ltd in about 1989.
8. On various dates in March 1998 Mr Al Fayed and the other claimants were arrested on suspicion of theft and criminal damage in connection with the alleged theft of and damage to the contents of a safe deposit box which Mr Tiny Rowland kept at Harrods. The arrests were attended by a certain amount of publicity. The investigations of the allegations were conducted by the Organised Crime Group ("OCG") of the Metropolitan Police of which the second, third, fourth and fifth defendants were members. The third defendant, Mr Rees carried out the investigation and the second defendant Mr Mulvihill, was his superior. The claimants were released and in due course the OCG investigation was brought to an end in July 1998 without any charge having been brought against any of the claimants.
9. The claimants' case is that the arrests were wrongful and that the defendants are liable for false imprisonment. The claimants' case is in outline as follows. Although it is accepted that the court may find that the arresting officers and Mr Rees suspected that offences of theft and criminal damage had been committed by someone, they did not suspect any particular individual claimant of having committed either of those offences. Even if, contrary to the above, Mr Rees and the arresting officers did suspect each of the claimants of having committed the offences of theft and criminal damage, there were no reasonable grounds for that suspicion. Further, the power to arrest was exercised unreasonably, ie unlawfully. The decision to arrest was perverse. There was a failure to exercise discretion. There was a failure to take account of the relevant and/or taking account of the irrelevant. As to continued detention after arrest (exercise of s. 37 PACE powers), the continued detention after arrest was unlawful. Each of the arrests was procured by Mr Rees and Mr Mulvihill. Although the claimants accept that any award of damages must be modest having regard to the limited time of detention, the court should however award exemplary damages, having regard to the unconstitutional and arbitrary and oppressive conduct of the defendants.
10. The defendants' case is that the claimants were lawfully arrested with reasonable cause.
11. The claimants were arrested at Kennington Police Station as follows:-
(a) Mr Al Fayed was arrested at 9.55am on 2 March 1998 by DS Reynolds on suspicion of theft and criminal damage.
(b) Mr Macnamara was arrested at 1.39pm on 2 March 1998 by DI Taber on suspicion of theft and criminal damage.
(c) Mr Griffiths was arrested at 9.30am on 3 March 1998 by DC Reeve on suspicion of theft and criminal damage.
(d) Mr Handley-Greaves was arrested at 3.52pm on 5 March 1998 by DS Reynolds on suspicion of theft and criminal damage.
(e) Mr Dalman was arrested at 4.40pm on 5 March 1998 by DS Reynolds on suspicion of theft and criminal damage.
(f) Mr Allen was arrested at 2.02pm on 27 March 1998 by DC Reeve on suspicion of theft and criminal damage.
Mr Loftus
12. Mr R J Loftus retired from the army in 1986. At the time of his retirement he held the rank of major in the Special Investigation Branch, Corps of Royal Military Police. In September 1987 he joined Harrods Ltd as head of security. In October 1988 he was appointed director of security and store services of Harrods (Management) Ltd. Mr Loftus was (he claimed) unfairly dismissed in February 1996.
13. The following statements from Mr Loftus were before the Operation Jagan team pre-arrests:
- Loftus 1: Undated witness statement witnessed by "Etheridge" (almost identical to "hybrid" statement) - attached to Cameron McKenna's letter dated 14 May 1997.
- Loftus 2: 08.05.97 - attached to Cameron McKenna's letter dated 14 May 1997.
- Loftus 3: 23.07.97 - police statement.
The relevant legal principles
14. The tort of false imprisonment is established on proof of:
(1) the fact of imprisonment; and
(2) absence of lawful authority to justify that imprisonment.
15. Summary arrest (arrest without warrant) can be made for an "arrestable offence" as defined by s. 24 of the Police and Criminal Evidence Act 1984 ("the 1984 Act"). Theft and criminal damage are arrestable offences.
16. Section 24(6) of the 1984 Act provides that:
"Where a constable has reasonable grounds for suspecting that an arrestable offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence."
17. An arrestable offence does not have to have been actually committed.
18. It is for the claimant to prove on a balance of probability that he/she was physically detained. (This is not in dispute in the present case.) The onus then shifts onto the defendant. The defendant must then prove the existence of facts amounting to reasonable grounds for suspicion, giving rise to the power to arrest.
19. In Hussein v Chong Fook Kam [1970] AC 942 at 948 Lord Devlin said:-
"Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove." Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage. It is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrest before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion. In the exercise of it many factors have to be considered besides the strength of the case. The possibility of escape, the prevention of further crime and the obstruction of police inquiries are examples of those factors with which all judges who have to grant or refuse bail are familiar. There is no serious danger in a large measure of executive discretion in the first instance because in countries where common law principles prevail the discretion is subject indirectly to judicial control… Their Lordships have not found any English authority in which reasonable suspicion has been equated with prima facie proof. In Dumbell v Roberts [1944] 1 All ER 326, Scott LJ said, at p329: "
"The protection of the public is safeguarded by the...
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