Hill v Chief Constable of South Yorkshire

JurisdictionEngland & Wales
JudgeLORD JUSTICE PURCHAS,LORD JUSTICE GLIDEWELL,LORD JUSTICE STOCKER
Judgment Date27 October 1989
Judgment citation (vLex)[1989] EWCA Civ J1027-5
Docket Number89/1023
CourtCourt of Appeal (Civil Division)
Date27 October 1989

[1989] EWCA Civ J1027-5

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE SHEFFIELD COUNTY COURT

HIS HONOUR JUDGE HENHAM

Royal Courts of Justice

Before:-

Lord Justice Purchas

Lord Justice Glidewell

and

Lord Justice Stocker

89/1023

Gary Hill
Appellant (Plaintiff)
and
The Chief Constable of South Yorkshire
Respondent (Defendant)

MR. R. CLAYTON (instructed by Messrs Irwin Mitchell) appeared on behalf of the Appellant (Plaintiff).

MR. D. NOLAN (instructed by Messrs Hammond Suddards, Bradford) appeared on behalf of the Respondent (Defendant).

LORD JUSTICE PURCHAS
1

On 21st August 1987 at about 2.40 a.m. one Gary Hill ("the appellant") was drunk and behaving in a disorderly fashion at the junction of Fargate and High Street, Sheffield. He was arrested, taken to the police station where he was detained until 5.15 a.m. on the same day when he was charged with the offence of being drunk and disorderly and released. According to the appellant's account, which was denied by the Chief Constable of South Yorkshire Police ("the respondent"), during the course of his arrest he was assaulted and beaten by police constables for whose actions the respondent accepts responsibility if, contrary to his denial, the constables were guilty of any trespass of this kind. In his pleaded case the appellant asserted that he was seized by a police officer and thrown into a police van and was thereupon in the van set upon by three constables as a result of which he suffered injury and pain, etc. Subsequently, on 2nd December 1987 in the magistrates' court, the appellant pleaded guilty to the offence of being drunk and disorderly and was fined a sum of £45.

2

This appeal is not concerned with the merits or truth of the allegations and denials to which I have just referred; but is concerned with a short but important point of procedure, namely whether in the circumstances I have described the appellant was entitled to an order for the trial of his claims for wrongful arrest, false imprisonment and assault by a judge and jury or merely by a judge alone. I use the word "entitled" advisedly since were it a matter of discretion I have little doubt that this court would be slow to interfere with an order made in the court below for trial by a judge alone in all the circumstances already outlined. The right upon which the appellant relies is to be found in the provisions of section 66 of the County Courts Act 1984 to which I shall subsequently refer in greater detail.

3

I must first outline the history of the proceedings themselves. The appellant filed his particulars of claim in the Sheffield County Court on 18th April 1988. He alleged, so far as is relevant to this appeal:—

  • 1. that he was "wrongfully arrested" at the place and time already described;

  • 2. that following the wrongful arrest he was wrongfully detained until his charge or release at 5.15 a.m.

4

The pleader in the particulars of claim condescended to no further details than the above bare assertions. The respondent did not request further and better particulars of the basis upon which it was alleged that the arrest and detention respectively were wrongful. He contented himself by filing a defence dated 8th June 1988 which, so far as was relevant, asserted:

  • 1. that the arrest was made on the grounds that the plaintiff was drunk and disorderly and was entirely lawful;

  • 2. that it was relevant to the lawfulness or otherwise of the plaintiff's arrest that on 2nd December 1987 he had been convicted by the Sheffield Magistrates of being drunk and disorderly on the occasion in question;

  • 3. that the detention claimed in the particulars of claim was admitted but was "entirely lawful".

5

On a date not specified in the papers but prior to the 22nd July 1988 the appellant applied to the Sheffield County Court for directions for trial including an order that the trial should be by judge and jury. This caused an affidavit to be sworn by an assistant solicitor on behalf of the respondent. So far as is relevant to this appeal it made the following assertions:—

  • 1. That the issues related to wrongful arrest or false imprisonment were concluded adversely to the appellant by the fact of his conviction on 22nd December 1987.

  • 2. That the only issue in the case was whether or not he was assaulted following the arrest and that such an issue did not entitle the appellant to a trial with a jury.

6

On 26th July the parties, represented by solicitors, appeared before Mr. Registrar Hawkesworth in Chambers at Sheffield. The Registrar ordered that the action should be set down for trial before a judge with a jury. He also made a number of other orders relating to discovery of documents, exchange of medical reports, etc. The respondent appealed to the judge from the Registrar's order insofar as it provided before a trial with a jury. At the same time the respondent issued an application before the judge to be heard at the same time as his appeal. This sought an order striking out those parts of the particulars of claim which alleged that the arrest or the detention were unlawful.

7

On 18th October 1988 the appellant filed a reply to which there was no objection although there was no provision for such a pleading in the order for directions. For the purposes of this appeal the relevant assertions were:—

  • 1. That the appellant's arrest was unlawful because the police used unreasonable force. Here reference was made to the assaults already pleaded.

  • 2. In the alternative, that the arrest was unlawful because the appellant was not informed of the alleged grounds for his arrest at the time of the arrest or as soon as practicable thereafter.

  • 3. In the further alternative that if, contrary to the primary contention the arrest was lawful his detention after 2.55 a.m. on 22nd August was unlawful. In relation to this the appellant relied on breaches of sections 37(1) and 37(7) of the Police and Criminal Evidence Act 1984 ("the 1984 Act") or alternatively failure to comply with the provisions of section 37(2) of the 1984 Act.

8

On the same date as the reply the appellant served a substantial request for further and better particulars of the defence asking for particulars of the allegations respondent that the arrest was lawful and, again, that the detention was lawful. So far as the court is aware this request was not answered by the respondent.

9

There were, therefore, two matters before His Honour Judge Henham from whose order this appeal has been brought: the appeal from the order of the Registrar and the application, which had not been before the Registrar, to strike out parts of the appellant's pleadings. From the note of the proceedings made by the judge it is clear that the case proposed by Mr. Nolan, who appeared for the respondent (the appellant before the judge), was basically that there was no issue as to unlawful arrest or wrongful imprisonment which could arise because the appellant had pleaded guilty to, and had been convicted of, being drunk and disorderly in the magistrates' court. It was on these facts that Mr. Nolan first of all submitted that the word "wrongful" in relation to arrest or detention should be struck out of the particulars of claim on the basis that any challenge to detention and arrest was a challenge to the conviction itself. This, it was submitted, would be an abuse of the process of the court or vexatious if the pleadings were allowed to remain unamended. I take this as a reference to Order 13, rule 5 of the County Court Rules 1981. It was further submitted by Mr. Nolan that once it was established that the arrest was lawful any subsequent detention must, therefore, be lawful. On the other hand, the case as presented by counsel (not Mr.Clayton) appearing for the appellant (the respondent before the judge) was that whether or not the conviction occurred this did not relieve the police from complying with the provisions of the 1984 Act and, in particular, the provisions of sections 28 and 37. If there were breaches of either or both of these sections then the arrest in the one instance and the detention in the other would be unlawful and that the burden of proving that the arrest and detention were lawful rested upon the respondents (the appellants before the judge). Judge Henham ruled in favour of the respondent and varied the order of the Registrar to provide for trial by judge alone and, further struck out those parts of the particulars of claim where the word "wrongful" or "wrongfully" was used in relation to the arrest or detention of the appellant.

10

It is now necessary to set out the relevant statutory provisions. Section 66(3) of the County Courts Act 1984 provides:

"(3) Where, on any such application, the court is satisfied that there is an issue—…

  • (b) a claim in respect of…false imprisonment;…

the action should be tried with a jury, unless the court is of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury".

11

It is common ground that the proviso at the end of section 66(3) does not apply in this case. The only issue was whether or not the court should be satisfied that there was in issue a claim in respect of false imprisonment. Of course, detention pursuant to an unlawful arrest amounts to false imprisonment and, likewise, detention beyond the degree authorised by the enabling statute even if after a lawful arrest will itself as a detention be an unlawful detention amounting to false imprisonment.

12

I now turn to the provisions of the 1984 Act. The powers to arrest without warrant are contained in Part III. Section 28, so far as is relevant,...

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1 books & journal articles
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    • Journal of Criminal Law, The No. 63-5, October 1999
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