Foulkes v Chief Constable of the Merseyside Police
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BELDAM,LORD JUSTICE SCHIEMANN,LORD JUSTICE THORPE |
| Judgment Date | 09 June 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0609-10 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCRTF 97/0789/2 |
| Date | 09 June 1998 |
[1998] EWCA Civ J0609-10
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
(MR ASSISTANT RECORDER ELLERAY)
Royal Courts of Justice
Strand
London WC2
Lord Justice Beldam
Lord Justice Schiemann
Lord Justice Thorpe
CCRTF 97/0789/2
MR N LEY (Instructed by Messrs Reary & CO, Walton) appeared on behalf of the Appellant
MISS A WHYTE (Instructed by Messrs Weightmans, Romford) appeared on behalf of the Respondent
Tuesday, 9 June 1998
In the early hours of the morning of 20th December 1994 four police officers were summoned to 35 Lenthall Street, Liverpool, by the plaintiff, Mr Trevor Foulkes. He, his son Karl who is aged 18 and daughter Lindsay aged 19, were in the throes of a family dispute because his children were playing music loudly and would not leave the house when he told them to do so. It appears that Mrs Foulkes was also involved and that general abuse had been exchanged. The arrival of the four policemen enabled Mr Foulkes to douse the music and after a while the police officers escorted the son and daughter from the house and directed them to return to the daughter's flat which was not far away. As the daughter was leaving, she stubbed her cigarette at or on Mr Foulkes' jumper. Later that morning Mr Foulkes awoke to find that his children had returned for breakfast. A heated family discussion took place and Mr Foulkes rushed downstairs and told the children to leave immediately. Mrs Foulkes took the children's part and asked him to leave; she suggested he go for a walk or stay with one of his brothers or friends. Mrs Foulkes went out but the argument between Mr Foulkes and his children continued. He tried to use the telephone to summon the police but was prevented by his son and shortly before 9 a.m. he left the house and went to a public telephone box. He again asked the police to attend. P.C.s McNamara and Mulcahey were detailed to answer the call and on arrival found Mr Foulkes locked out of his house. Mrs Foulkes who had returned while he was making his telephone call had agreed with her son that the lock on the front door should be changed. Apparently a replacement lock was kept ready at hand and by this means Mr Foulkes was prevented from returning home. No. 35 Lenthall Street, Walton, was jointly owned by Mr Foulkes and his wife who had been married for 22 years. Their daughter Lindsay had a flat of her own but at the time it was without electricity.
P.C. McNamara found Mr Foulkes sitting on the doorstep. He described him as slightly unkempt, very nervous and jittery and not completely coherent but his nervous disposition was very obvious. His hands were shaking but otherwise he seemed calm. To P.C. McNamara, Mr Foulkes related that he had had arguments, that his son had locked him out of the house and that he wanted to get back in. P.C. Mulcahey went inside the house and was there for several minutes, the door being closed behind him. Whilst P.C. Mulcahey was speaking to Mrs Foulkes inside the house, Mr Foulkes gave P.C. McNamara an account of the incident earlier that morning, telling him that the police had attended and in general terms the nature of the argument. When P.C. Mulcahey returned, he told Mr Foulkes that his wife, daughter and son did not want him to go back into the house and that if he went back in there would be arguments. The officer suggested that Mr Foulkes should go and have a cup of tea or go to a relative until tempers had cooled but Mr Foulkes said more than once
"It's my house. I called you. I want back into the house"
Several times the police officers suggested that he left the front of the house to cool down but Mr Foulkes refused to do so. P.C. McNamara cautioned him and told him that he would be arrested to prevent any breach of the peace if he did not go away until tempers had cooled. Still Mr Foulkes refused to go so P.C. McNamara arrested him because, in his words, he was:
"… fearful that it was his [Mr Foulkes'] actions outside the property that was going to cause a breach of the peace."
P.C. McNamara thought that if he left the area while Mr Foulkes remained outside the property, Mr Foulkes would persist in trying to get into the house:
" If he got into the house then an argument would ensue and violence would occur, whether the violence be upon him or upon the other members of the family at that time to me did not matter but a breach of the peace would occur due to his actions."
Mr Foulkes was taken to Walton Police Station and was detained there. Mrs Foulkes was asked to attend the police station to make a statement, which she did some time after midday. She completed her statement shortly before 2 p.m. By this time, according to the unchallenged evidence, it was too late for Mr Foulkes to be transferred to the Bridewell in Central Liverpool to be brought before a magistrate. Accordingly he was kept in custody until the following morning when Mrs Foulkes withdrew the suggestion she had made in her statement that she wished her husband to be taken before a magistrate and to be bound over to keep the peace. Mr Foulkes was then released.
On 22nd November 1995 he commenced proceedings against the Chief Constable of the Merseyside Police in the Liverpool County Court claiming that his arrest by P.C. McNamara was illegal and that he had been falsely imprisoned. Further that, even if his arrest was lawful, the duration of his detention was unreasonable.
The plaintiff, as I shall now call Mr Foulkes, included a claim for malicious prosecution but he did not pursue it. He claimed damages, including exemplary damages. For the defendant Chief Constable, it was contended that the plaintiff's arrest was lawful, being effected by P.C. McNamara on the ground that he reasonably apprehended that a breach of the peace was about to occur or was imminent if he did not arrest the plaintiff.
The plaintiff's claim was heard in the Liverpool County Court on 1st and 2nd May 1997. The facts I have related were not substantially in dispute. Mr Assistant Recorder Elleray rejected the plaintiff's claim. It had been conceded before him that P.C. McNamara honestly believed that a breach of the peace was likely to be occasioned unless he arrested the plaintiff. Although the trial was with a jury, in the light of the concession that P.C. McNamara honestly held the belief that arrest was necessary to prevent a breach of the peace, the only remaining question was whether there were reasonable grounds in law for the arrest and subsequent detention of the plaintiff. That was a matter for the judge to determine and after a careful and accurate review of the arguments which had been canvassed before him, the judge held that P.C. McNamara did in this case have reasonable grounds for his honest belief. Accordingly he dismissed the plaintiff's claim and entered judgment for the defendant. The plaintiff now appeals.
Before setting out the reasons for the Recorder's decision, I would pay tribute to his judgment as a clear and careful exposition of the principles he applied and the basis for his decision that there were reasonable grounds for P.C. McNamara's actions. In summary, after extracting the relevant principles from the authorities which had been cited to him, the Recorder set out the factors which had been urged by Mr Ley on the plaintiff's behalf that there were no such reasonable grounds and weighed them against the factors which he decided had informed P.C. McNamara's belief that arrest was necessary. On the one hand the plaintiff had summoned the police to the scene. There was no evidence that the plaintiff had committed any damage or had been aggressive, nor that he was a violent man. The mere fact that Mrs Foulkes had expressed concern that if the plaintiff returned to the home there might be arguments did not mean that there would necessarily be violence or damage to property. Nor had P.C. McNamara made enquiries about the circumstances in which the police had attended earlier that morning. On that occasion it was the children who had been asked to leave, not the plaintiff. Moreover P.C. Mulcahey had apparently been of the view that any loud noise or shouting could amount to a breach of the peace. Further there was no evidence that any member of the public might have been affected by this domestic squabble.
The matters which on the other hand led the Recorder to conclude that there were reasonable grounds in law for the plaintiff's arrest were that Mrs Foulkes and the two children had taken the drastic step of changing the locks to exclude him, that he appeared very nervous and agitated, that he told P.C. McNamara that there had been arguments between himself and the children and that the arguments were to do with loud music. So P.C. McNamara reasonably thought there must be more to it than that. When Mrs Foulkes appeared at the door of the house she made an aggressive remark and her daughter also appeared to be in an agitated state. Earlier that morning she had stubbed a cigarette on or at the father. Both Mrs Foulkes and the children were adamant that the plaintiff was not to go back in the house and Mrs Foulkes had indicated she was frightened there would be trouble. The plaintiff was refusing all the reasonable requests by the police that he should go for a cup of tea or to friends while tempers cooled. The Recorder therefore concluded:
"Constable McNamara and his fellow officers were in a difficult situation, the making of Mr Foulkes and his family. He should and, in my view would reasonably, have been concerned that if the police simply left...
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