Fleming v Chief Constable of the Sussez Police Force
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE POTTER,LORD JUSTICE MANCE,LORD JUSTICE JACOB |
| Judgment Date | 04 May 2004 |
| Neutral Citation | [2004] EWCA Civ 643 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B3/2003/2103 |
| Date | 04 May 2004 |
[2004] EWCA Civ 643
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(HIS HONOUR JUDGE KENNEDY QC)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Potter
Lord Justice Mance
Lord Justice Jacob
B3/2003/2103
MR EDWARD BISHOP (instructed by Wynee Baxter, East Sussex BN 7 2 AE) appeared on behalf of the Claimant
MR L THOMAS (instructed by Christian Khan, London WC1A 1LY) appeared on behalf of the Defendant
(Approved by the Court)
This appeal is the continuation of an unedifying and bitterly fought dispute between the claimant and the Sussex Police which was tried before His Honour Judge Kennedy and a civil jury over some seven days leading to a verdict and an award of damages in the claimant's favour in the sum of £5,025 on 2 April 2003 in respect of a major part of the claim. However, the claimant was not wholly successful and the appeal in this case relates, not to the verdict of the award as such, but to the order for costs later made by the judge following lengthy written submissions by the parties. On 12 August 2003 the judge ordered that, upon an issue of misfeasance (which was part of the original claim but later struck out by consent prior to trial) there should be no order as to costs as between the parties but that otherwise the defendant was to pay the claimant's costs of his claim, such costs to be the subject of detailed assessment. The judge's reasons appear set out in a perfected judgment dated 30 September 2003.
The action arose out of an incident at Gatwick Airport on the morning 6 January 1999. The claimant had gone there to meet his girlfriend, Angela Shepherd, and their daughter, Jakita, who were returning from Canada on a flight which was delayed. After the claimant had been waiting around for some time, he was approach by two police officers, PC Bold and PC Jeffs, who were on duty at the airport, following which an incident took place which led to the claimant's arrest. He was taken in a car to Gatwick Police Station where he remained for nearly six hours. Upon his arrival he complained of being assaulted by the officers, and at 17.31 pm was himself charged with assault on the officers and also with an offence under section 5 of the Public Order Act. A DNA sample was taken. The claimant was released at 18.05 pm and bailed to appear before the Crawley Magistrates on 18 February 1999. However, on 12 February 1999, solicitors retained by him received a letter from the Crown Prosecution Service saying that the charges would not be proceeded with, the CPS having discontinued the matter.
The claimant made the conduct of the two officers the subject of a formal complaint to the police and, following the investigation and rejection of that complaint, he commenced proceedings.
The particulars of claim dated 14 December 2001 alleged: (i) wrongful arrest, assault and false imprisonment; (ii) malicious prosecution on the grounds that the circumstances which the police said led to his arrest (namely that he had been shouting and abusive and had himself assaulted PC Bold prior to his arrest) were fabricated as the police were well aware; (iii) misfeasance in public office in that the DNA samples which were taken from the claimant were not destroyed on dismissal of the prosecution as the claimant had been told they would be, but only 15 months later when they were deleted from the Police National Database.
In addition to a claim for compensatory damages, there was a claim for aggravated and exemplary damages on the grounds of the alleged arbitrary and oppressive conduct of the police officers.
In broad terms, the differing accounts of events were as follows. The claimant said that he had been approached by the two police officers and asked his business. He had told them why he was at the airport. However one of the officers pulled out his radio and spoke into it and, following the reply received, nodded his head, upon which the claimant was pushed in the back from behind and caused to stumble forward as a result of a shove from the second officer. The first officer said that they were from the Sussex Police and asked the claimant his business. The claimant moved away and carried on walking in order to avoid a confrontation, no warrant cards having been produced at that stage. When he arrived at the exit and began to open it he was grabbed from behind, an arm was put round his neck and he was pulled sideways away from the door. Both officers grabbed him, he lost his balance and fell to the ground. When he got up and had been directed to a row of chairs he was forced into a kneeling position where he felt a blow to his back, his thumb was forced up behind his back and his hand was bent and twisted. He turned and said to the officer "You're breaking my fingers", and the officer released his grip but kept hold of his arm. As a crowd began to gather the claimant shouted that he had done nothing wrong and was just there to collect his girlfriend and the officers told the crowd that the claimant was under arrest and they should move along.
He drew an officer's attention to the fact that his watch had fallen on the ground and one of the officers deliberately stood on it before picking it up and placing it in his pocket. He was then shown a warrant card and told that he was under arrest for assaulting a police officer and for making a noise in a public place. He was taken back to the police station in handcuffs, where he was dealt with as already described.
The defence was that the officers had received a report that the claimant was loitering in the area of the airport. He had been stopped, shown a warrant card, informed that they were police officers and asked what he was doing there. The claimant asked if he was under arrest and he said that, if he was not, he was not talking to them. He then began to walk away. After further questioning the claimant refused to cooperate and became agitated, raising his voice. He was warned that if he did not stop and speak to the officers he would be arrested, at which he started swearing. A crowd gathered and he became agitated and, after being warned that he would be arrested if he did not calm down, he had refused details and started to move away. Upon a move to prevent him, he struck out at PC Bold, pushing him in the chest and causing him to move backwards. The claimant said he was getting angry and tensed his body. At that the officers reasonably suspected he was engaging in offensive conduct within the meaning of section 5 of the Public Order Act. PC Bold arrested him and took hold of his right arm, informing him he was under arrest for the offence under section 5 and for assaulting PC Bold. The claimant struggled after his arrest but was overpowered and handcuffed and then taken to the police station. The relevant dates in relation to the taking, retention and destruction of the DNA sample were admitted but misfeasance denied. Otherwise the claimant's allegations were denied.
Following the summing-up of the judge, a list of questions as to the disputed matters of fact were put to the jury. Their answers involved the following findings. The claimant was shouting aggressively and swearing and was warned to stop doing so otherwise he would be arrested. He continued to shout aggressively and swear, however he did not push PC Bold in the chest. He was told he was under arrest at the time hands were laid on him and given the reasons, but the jury did not state what those reasons were. However, on the basis that both parties asserted that both unruly behaviour and assault were relied on, it is likely that the jury found that the reasons were two-fold.
The jury went on to find that PC Bold had pushed the claimant from behind at the time he was talking to PC Jeffs. PC Bold had also deliberately twisted the claimant's finger or thumb without good reason. The other allegations of assault by PC Bold and the allegation that he deliberately stood on the claimant's watch were rejected. The jury found that the police had no honest belief in the charge of assault which was brought against the claimant, though they had an honest belief in the charge of disorderly behaviour brought against him.
The jury awarded damages for the first assault (ie the push in the back from behind by PC Bold) of £25. In relation to the second assault (ie the deliberate twisting of the claimant's finger or thumb) the jury awarded damages of £1,000. No finding was made or damages awarded in respect of a charge of false imprisonment relating to the detention of the claimant. The parties are agreed that it was implicit that, because the jury accepted that there were grounds for the arrest of the claimant under section 5 of the Public Order Act, the charge of false imprisonment was not made out. The jury found the charge of malicious prosecution to be proved and awarded damages of £2,000. They also made an award of aggravated damages in relation to the conduct of the police of £2,000, making a total award of £5,025.
The jury was not concerned with the claim for misfeasance in public office because this had been struck out by consent on 3 July 2002. That came about in this way. Paragraph 5(b) of the particulars of claim alleged that the DNA samples had not been destroyed once the prosecution was dismissed, despite the claimant being told "on or about the 15th February 1999 by an officer believed to be Acting Inspector Charnock or similar of Gatwick Police Station that they would be." By...
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