Glenys Goodenough and Another v The Chief Constable of Thames Valley Police
| Jurisdiction | England & Wales |
| Judge | Lord Justice Edis,Lord Justice Nugee,Dame Victoria Sharp, P |
| Judgment Date | 01 October 2021 |
| Neutral Citation | [2021] EWCA Civ 1422 |
| Docket Number | Case No: B3/2020/1537/QBENF |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1422
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
Mr Justice Turner
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
Lord Justice Nugee
and
Lord Justice Edis
Case No: B3/2020/1537/QBENF
Mr. James Laddie QC and Mr. Raj Desai (instructed by DPG Law LLP) for the Appellant
Lord Faulks QC, Mr. John Beggs QC and Mr. Aaron Rathmell (instructed by DAC Beachcroft) for the Respondent
Hearing date: 13 July 2021
Introduction
This appeal arises out of the death of Robin Goodenough. Mr. Goodenough died in Alma Place, which leads off Cowley Road in Oxford, after an incident which happened at about 0020am on 27 September 2003. The claimants are his mother and his sister. Mrs. Goodenough sues as his administratrix on behalf of the dependants under the Fatal Accidents Act 1976 and on behalf of the estate under the Law Reform (Miscellaneous Provisions) Act 1934. Susan Williams, Mr. Goodenough's sister, joined the claim under the Fatal Accidents Act and pursued a claim in her own right as a participant in the incident.
The claim is for trespass to the person by battery, negligence and also for vindication of Mr. Goodenough's rights under Article 2 of the European Convention on Human Rights relying on flaws in the investigation into his death. After a trial on liability only, Mr. Justice Turner handed down a judgment on 26 March 2020 dismissing the claim for assault and negligence, but allowing the claim under Article 2. The claimants now appeal against the dismissal of the action for damages for battery and negligence.
It was agreed that police officers had applied force to Mr. Goodenough and that this force was in law a cause of his death. The judge decided that the officers who used the force reasonably feared that it was necessary to do so in order to protect themselves and others. The judge decided that Mr. Goodenough was not actually intending to cause harm to others, but held that he was bound to apply the law as explained by the Court of Appeal in Ashley v. Chief Constable of Sussex Police [2006] EWCA Civ 1368, [2007] 1 WLR 398. It was not, therefore, necessary to prove that the officers were actually being attacked or under threat of attack. That question remains open in the Supreme Court, see Ashley v. Chief Constable of Sussex Police [2008] UKHL 25, [2008] 1 AC 962, at [20], [55], and [90]. It is common ground that the point is not open in the Court of Appeal and, like the judge, we are bound by the decision in Ashley in the Court of Appeal on that issue.
The Grounds of Appeal are as follows:-
i) The judge erred in accepting that a reasonable and honest but mistaken belief in imminent danger suffices to establish self-defence. The correct test for self-defence requires a defendant to establish that there was in fact such a danger and the High Court made a specific finding that the Defendant was unable to discharge this burden on the evidence before it. This ground must be rejected for the reason explained above, and the issue for this court is whether to grant leave to appeal to take it to the Supreme Court. I will say nothing more about it at this stage.
ii) In any event, the judge erred in his approach to the application of the requirement that there be an honest and objectively reasonable belief in a real and imminent danger. He should have found that the officers had no such belief and that if they did any such belief was not a reasonable one.
iii) The judge further erred in his approach to the proportionality of the force used.
iv) The rejection of the battery claim was premised on an unbalanced and seriously inadequate analysis of the issues and evidence that compromised the fairness of his decision. The errors in the judge's approach are a fortiori given that the case concerns the legality of state agents applying force and thereby causing death.
It will become apparent that Grounds 2, 3 and 4 are challenges to the judge's findings of fact in his judgment, which by Ground 4 are said to have been arrived at in an unfair way. The suggested unfairness is entirely contained within the judgment and it is not suggested that there was any other unfairness in the conduct of the trial. There is criticism of the sufficiency of the reasons given in the judgment which overlaps across the three grounds of appeal under consideration.
It is worth stating at the outset that the force used in this case involved two punches to the head and neck and pulling Mr. Goodenough out of the driver's seat of a car in such a way that he landed on his face. The punches and the pulling were both part of the effort to remove him from the car. He had been resisting the attempt to extract him from the car, and became free suddenly so that he landed on the surface of the road. That resistance was not violent. He sustained very unpleasant facial injuries from that fall, but they would not have been fatal if he had not been an abuser of butane gas which had left him vulnerable to heart failure if exposed to stress. It was not alleged that any officer had used force which was intended to create a risk of death. There is an allegation, which in my judgment is an extremely important part of the appellants' case, that the officers deliberately threw Mr. Goodenough to the ground with such force as to prevent him from guarding his face as he landed and thus caused the facial injuries. That is the key factual issue in the case, because the officers deny doing this, saying that he emerged from the car suddenly and fell to the ground as part of that movement. The appellants contend that the judge should have found the allegation proved, and that he rejected it in an unfair way and gave inadequate reasons for doing so.
Factual summary
In summary, Mr. Goodenough was driving his sister's Vauxhall Astra on the roundabout in Oxford, called “the Plain”, when a police van signalled to him to stop. His sister and another person were passengers in the car. He drove away off the roundabout and on to Cowley Road. He came to a stop when he had turned off Cowley Road into a cul de sac called Alma Place. The police officers got out of their van and surrounded the car. Mr. Goodenough did not turn his engine off, and did not obey their instruction to get out of the car. He was then pulled out of the car, after being punched once or twice to the head and struck the road or pavement with his face, suffering unpleasant injuries. Butane gas had an effect on his heart and meant that the stress of the incident caused his death. His sister was also arrested. That gave rise to her claim which was settled by her acceptance of a Part 36 offer on 12 November 2019, some months before the trial.
Several issues were resolved at or after the trial and are not now disputed. These are:-
i) During the trial a concession was made on behalf of the Chief Constable of Thames Valley Police that the force used by the officers in extracting Mr. Goodenough from the car was a contributory cause of his death.
ii) The judge considered that during the trial the claims for damages for negligence and for violations of Mr. Goodenough's Article 2 rights arising from his treatment in Alma Place were abandoned. This was contentious, but if they were not formally abandoned a concession was made on behalf of the claimants that they were co-extensive with the claim in trespass and would “stand or fall with the primary assault/battery claims.” This comes to the same thing. The judge did not, therefore, consider those causes of action separately, and no complaint is made about that. The judge was concerned only with the claim for battery, as are we.
iii) Although permission to appeal against the decision to award damages of £5,000 to each of the claimants for the flawed investigation under the Article 2 claim was sought by the Chief Constable, it was refused. We are not concerned with that, although it will be necessary to refer to the facts on which it relied in so far as it may have affected the cogency of the evidence on the issue on this appeal, the rejection of the claim for battery.
It was admitted at trial that force had been used by police officers on Mr. Goodenough, and the issue which the judge had to decide was whether the respondent had proved that the force which was used was lawful because it was used in lawful self-defence or defence of others from reasonably anticipated harm from Mr. Goodenough.
The facts
The judge observed that there was a good deal of common ground between the parties as to the facts, which enabled him to set out most of them in a narrative uncluttered with unnecessary detail. I will adopt the same course and will identify the facts and, where they are in dispute, what that dispute was.
Only two witnesses gave oral evidence before the judge, Police Constables Shane and Shatford. The judge granted a witness summons requiring the attendance of a third officer, Police Constable Summerville, so that he could be cross-examined. He produced a medical note which said that this would have an adverse impact on his mental health. The trial proceeded without him being cross-examined. These were the three officers who used the force on Mr. Goodenough which caused his death. Constable Shane delivered the two punches; Constable Shatford took the lead in pulling Mr. Goodenough out of the car, assisted by Constable Summerville.
There was a good deal of written evidence as well, including witness statements from the criminal investigation and transcripts of evidence from two criminal trials in which Constables Shane, Shatford and Summerville were defendants. They were ultimately acquitted of both manslaughter and...
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