Friswell v Chief Constable of Essex Police
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE COX |
| Judgment Date | 03 November 2004 |
| Neutral Citation | [2004] EWHC 3009 (QB) |
| Court | Queen's Bench Division |
| Date | 03 November 2004 |
[2004] EWHC 3009 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WCA 2LL
Mrs Justice Cox
MR V WILLIAMS (instructed by Hill & Abbott) appeared on behalf of the CLAIMANT.
MR THWAITES QC and MR J PAYNE (instructed by Barlow Lyde & Gilbert) appeared on behalf of the DEFENDANT.
In this action the claimant seeks damages for trespass to his land, false imprisonment and assault arising out of an incident at his home on 7 th September 2000 involving himself and a police constable in the Essex Police Force.
After the conclusion of the evidence and in the absence of the jury, I heard lengthy legal submissions from counsel on the fourth day of the trial, 28 th October 2004, on questions of law relating to the entry by a police constable into a private family home, in the context of his attendance at the scene to deal with a domestic dispute between husband and wife. Entry is not in dispute in this case and nor is it in dispute that the officer used force, as that term is defined in law, in order to enter the house. Eventually, and after an application to amend the Defence on the third day of trial, which I granted, the defendant put forward three justifications for entry by the police officer in this case, the burden of proving justification for what would otherwise be a trespass to land being upon the defendant.
Mr Williams, counsel for the claimant, submitted that, in respect of each of these justifications, the officer's evidence, taken at its highest and ignoring all the disputed facts, is such that as a matter of law there is no basis upon which the jury could be asked to consider and determine liability. He submitted that the officer's entry onto the premises was, on the basis of his own evidence, unlawful; that he was thereby a trespasser; and that the claimant was therefore entitled to use reasonable force to resist him and to eject him from his home.
It was common ground, if that was my conclusion, that there was no remaining liability issue to be determined by the jury and that they would proceed to determine only those issues which related to quantum in this case. However Mr Thwaites QC, representing the defendant, resisted the claimant's submissions and contended that all the justifications for entry put forward by the defendant should be left to the jury to determine.
The points raised in submissions are significant and not free from difficulty. I was referred to a number of authorities. Since there was a jury in waiting and in order not to delay the trial further, I told the parties that I would at that stage give them only my decision and a brief summary of my reasoning on the issues, enabling the trial to continue and conclude, which it did. I adjourned until today, 3 rd November, the delivery of full reasons for my ruling in this matter, which was in favour of the claimant. In the event, following my ruling, the parties agreed on the sum which the claimant should receive by way of compensation, and, having explained to the jury what had happened after they returned to court, the jury was then discharged.
These then are my reasons for the ruling I gave in court on 28 th October.
Background facts which are not in dispute
The claimant, now aged 49, has since 1990 worked as a facilities and buildings manager, managing property portfolios, maintenance contracts and associated budgets. He has been married for 20 years to Brenda Friswell and they have two sons, now aged 13 and 16. They all live in a detached house in a cul-de-sac at an address in South Woodham Ferrers in Essex.
During 1999 Mrs Friswell, who was responsible for managing the family's finances, was made redundant. Without her husband's knowledge she secured a loan, by forging his signature, in order to assist in paying the bills, but the debts grew and the loan company tried to repossess the house because of repayment arrears. The claimant's wife also took money from a school where she was working voluntarily as a part-time treasurer, and she had attempted, but failed, to repay all that money before the matter came to light and the police became involved. Criminal proceedings ensued and Mrs Friswell was sentenced to six months' imprisonment, being released after serving half of that term.
The claimant's unchallenged evidence was that he was totally taken aback by the enormity of what had happened and that it had had a very serious impact on him and on the family unit. The relationship between himself and his wife after her release from custody was strained and things were very difficult between them. It is against that background and with this state of affairs continuing that the incident with which we were concerned in this trial took place on 7 th September 2000.
The claimant and Police Constable Rampling, the officer who attended the scene, were the only witnesses who dealt with the events of that evening. The claimant disputed the officer's account of events. However, for the purpose of determining the questions of law which arose, I proceeded on the basis that the officer's account of what had happened and why he acted as he did was accepted as correct. In any event, the disputed facts related in the main to events which occurred between them after the officer's entry into the house. The focus of the parties' legal submissions was the officer's stated justification for entry in the first place.
The events of 7th September 2000.
It was not in dispute that when he returned from work that evening the claimant and his wife had had an argument in the kitchen about the financial situation and the serious difficulties that they were in. The claimant told her to leave and the argument became heated. At one point the claimant admitted picking up a container of suntan lotion and squirting it at her. She went out of the back door into the garden, and he then picked up some apples from a bag on the doorstep and threw them in her direction. The two sons, who had been in the garden, ran to the house of a neighbour, Mrs Moulds, who telephoned the police. The claimant, still in the kitchen and in a considerable state of distress, then deliberately consumed a large quantity of tablets, an overdose, which he described as a "cry for help".
Police Constable Rampling, who has been a uniformed police constable in Essex for some 27 years, started work at 7 p.m. that evening. Before he left South Woodham Ferrers Police Station for his tour of duty, he received a call on the station telephone from the Force Information Room. He was told that there was a "non violent domestic" at the claimant's address, where a man was throwing apples at his wife, and he was also told that the couple's children had gone to the house of the caller. He attended the address as requested, and in cross-examination described it as a "routine response", so that he was quite happy to attend on his own. He arrived at Mrs Moulds' house at 19.27 and she told him that the boys had come across and were hysterical, and referred to "Dad throwing apples at mum". He spoke to the elder boy, who had calmed down and seemed quite normal. The officer considered that there had been a problem at the claimant's house and that he needed to investigate.
In cross-examination he said that the visit to Mrs Moulds' house had not provided him with any further information, that he did not attach too much weight to the throwing of the apples, and that he did not think anything serious had happened before he went to the claimant's house.
His evidence relating to his decision to enter and his entry into the premises was as follows. He walked up to the front door of the claimant's house and rang the doorbell, but no-one answered. In cross-examination he said that he heard no shouts or screams. Mrs Friswell then came round to the front from the garden at the back of the house and met him. He described her as shaking and dishevelled and said that she looked upset. Her hair and her clothing were streaked with what looked like suntan lotion. She said that she had been arguing with her husband, that there had been talk of a divorce, and that he had lost his temper. In response to the officer asking her if she had been assaulted, she said that the claimant had taken hold of her by her upper arms and shaken her. He accepted in cross-examination that Mrs Friswell displayed no signs of injury, and nor did she complain of any injury. He told her that the police deal positively with domestic violence and that he would investigate the incident. There was some discussion between them about a women's refuge, but she did not want to know about this. She also said that the claimant had told her that he had taken an overdose, but she did not say that she had witnessed this and she did not know what the tablets were.
I should say at this point that the allegation of assault by shaking said to have been made by Mrs Friswell was not pleaded in the Defence and had not been mentioned by Police Constable Rampling in any of the contemporaneous documentation, i.e. the notes made in his pocketbook shortly after the incident; his original formal police statement; and the form CSD9 completed by him for the assistance of the Police Force Domestic Violence Unit in monitoring domestic incidents. Nor had he referred to it at any stage during his lengthy internal interviews relating to the claimant's complaint against him, conducted in 2001. It appeared for the first time in paragraph 9 of his witness statement prepared for this trial, dated 6 th August 2004, and there was a great deal of cross-examination...
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John Henry Marsden v Crown Prosecution Service
...you want you daft cunt". The shouting of these words did not amount to a breach of the peace in accordance with the test of Friswell v Chief Constable Essex Police [2004] EWHC 3009 (QB) 2004 WL 3050477. However, this did not make PC Lowe's entry unlawful as he had enduring consent to enter ......