Kandawala v Cambridge Constabulary CBS
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hamblen,Lord Justice McFarlane |
| Judgment Date | 25 January 2017 |
| Neutral Citation | [2017] EWCA Civ 391 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 January 2017 |
| Docket Number | Case No: B2/2015/1266, B2/2015 (A) and |
[2017] EWCA Civ 391
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAMBRIDGE COUNTY COURT
AND FAMILY COURT
(HIS HONOUR JUDGE YELTON)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice McFarlane
and
Lord Justice Hamblen
Case No: B2/2015/1266, B2/2015 (A) and
B2/2015/2016 (B)
Ms Henrietta Hill (instructed by Matthew Gold and Co Limited) appeared on behalf of the Applicant
Mr Mark Hill (instructed by Weightmans LLP) appeared on behalf of the Respondent
Introduction
The appellant, Mr Lawrence Kandawala, appeals against the order made by His Honour Judge Yelton in Cambridge County Court on 4 March 2015 whereby he dismissed the appellant's claim for damages for false imprisonment made against the respondent, the Chief Constable of Cambridge Constabulary.
The appellant advances three grounds of appeal: (1) the judge erred in failing to give proper consideration to whether it would be necessary to arrest the appellant under the Police and Criminal Evidence Act 1984 ("PACE"), section 25(5) ("the necessity ground"); (2) the judge erred in failing to give proper consideration to the appellant's claim that he had been discriminated against on the grounds of race by the police officers ("the discrimination ground"); and (3) the judge's conduct at the hearing meant that the appellant did not have a fair trial in this claim ("the fair trial ground").
The factual background
The background facts are as found by the judge at paragraphs 2 to 10 of the judgment. In summary, the appellant is a man of good character who lives off Mill Road in Cambridge. On the evening of 11 August 2009 he had gone out to do some shopping. Mrs Leigh Pollard was walking along Mill Road with her two young daughters, a baby who was in a pram and their aunt. Near them was a man referred to as Mr Majid, who was pushing a bicycle. This could be seen on CCTV. An incident occurred between the appellant and this group near the top of Devonshire Road. This was not caught on CCTV. The incident involved Mrs Pollard hitting the appellant around the face a couple of times. She claimed this was because the appellant had interfered with her daughter by touching her. After he had been hit, the appellant rang the police. PCs Graham and Mossop were in a car nearby and were on the scene within about 60 seconds of the call being made. The appellant said that he had been hit by a woman and that the group of women and children were running away. The officers' evidence was that they were walking, not running, but they decided to speak to the man and investigate.
PC Graham's notebook record contemporaneously described what occurred as follows:
"I was driving along with my colleague along Mill Road when I was approached by a male, the claimant, who was in the process of calling 999. He stated that he had been assaulted by a group who were making off down Argyll Street. I got out of the vehicle and followed the male. I then caught up with a group of about four females. My colleague then arrived in a vehicle. I spoke to the male and my colleague spoke to group of females.
Whilst speaking to the male, I was approached by a male called Majid and an address was given elsewhere in Cambridge, who stated he had seen the male grab one of the younger female's bottom. I then spoke to the claimant, who denied this allegation. He also stated that he had a witness who had seen the incident occur."
PC Graham then described how he went back over the bridge with the appellant to a public house called The White Swan in order to speak to this witness. He there spoke to a man who denied seeing anything. His notebook entry then continued:
"After speaking with the group of females, my colleague stated the group all stated the male grabbed the female's bottom whilst they were walking along. She, the mother, then punched him and ran off. As a result of this, I arrested the man on suspicion of sexual assault by touching."
The appellant was then taken to the police station where he was interviewed and bailed. No further proceedings were taken against him. In the meantime, the police had tried to get Mrs Pollard, her two daughters and their aunt to cooperate, had received no cooperation and had also found that Mr Majid had given an address which did not appear to be his real address.
The judgment
The judge gave a short ex tempore judgment. The main paragraphs dealing with the reasons for his decision are paragraphs 12 to 17, which provide as follows:
"12. The case depends, first of all, on section 24 and section 28 of the Police and Criminal Evidence Act. One of the facts which is in dispute is that the claimant says that the police did not tell him why he was being arrested. That was not actually put on his behalf to the officers but, be that as it may, he has made it clear that that is his case. I am satisfied that he was told why he was being arrested, that he was very angry and that he did not appreciate that that was said to him; so I am satisfied that section 28 of the Police and Criminal Evidence Act was complied with.
13. The police rely on section 24, which gives the power to arrest without warrant. In the recent case (recent in that it is 2012 and actually postdates the time of this event) of Hayes v Chief Constable of Merseyside Police, which I have read, the Court of Appeal held that, where a constable has the requisite suspicion of a recordable offence, all that needs to be shown is that the constable actually believed the arrest was necessary and that the belief was objectively reasonable.
14. The claimant says that the police should have taken the view that the case against him was too weak to arrest him. He says that Mr Majid had changed his mind about what he saw and had given two conflicting events, and he says that the circumstances – in other words, him ringing the police – are not consistent with him having committed a criminal offence.
15. I am satisfied that the account which I read earlier by Constable Graham in his pocketbook is a fair (though obviously limited) account of what occurred and that Mr Majid had not changed his mind. I understand the point being made by the claimant (or inferentially being made by the claimant) which is that it was unlikely that he would complain to the police if, in fact, he had just committed a criminal offence. That presupposes that he had so done. The issue is not whether he did so but whether the police had reasonable grounds to believe that he had done, and they were faced with a situation in which two women and two younger girls and an apparently independent witness (but who may well have not been an independent witness) were all saying that he had done so. That, it seems to me, means that the police can entirely justify an arrest under section 24(5).
16. It is very easy to approach this case with the benefit of hindsight. It subsequently turned out that Mrs Pollard and her daughter did not wish to take the matter further. I have already indicated that Mr Majid had probably given a false address but, anyway, he could not be traced thereafter and a prosecution would, in any event, not have been possible. However, the police did not know that at the time they arrested the claimant and, indeed, they could not know that. As I said earlier, they had to decide what was the best thing to do in the street, as a result of the complaints being made by all parties, and I am satisfied that they amply discharged the burden of proof on them of showing that, under section 24, the claimant was properly and reasonably arrested and that, as I say, section 24 is complied with.
17. The claimant says that there was racial discrimination against him. I find that difficult to follow in relation to what occurred because he is black – he comes from Malawi – but, as I have understood it and read the evidence (and, indeed, his evidence), Mrs Pollard is herself of Caribbean/white origin – in other words, she is a lady of mixed race – and why anyone should discriminate the one against the other does not seem to me here or there. I do not find that there was any discrimination at all in relation to the claimant. The fact was that the allegation was made against him, it was investigated speedily and he was bailed that night. It was, I am sure, for a respectable person (as the claimant is) a very unpleasant experience and not one that any of us would want to see repeated, but that is far from saying that the claimant has a claim against the defendant, and I find, for the reasons I have given shortly in this ex tempore judgment, that he has not and so I shall dismiss the claim."
Ground (1), the necessity ground
Under PACE section 24(2) if a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest, without a warrant, anyone whom he has reasonable grounds to suspect of being guilty of it. However, by section 24(4) his power of summary arrest is exercisable only if, "The constable has reasonable grounds for believing that for any of the reasons mentioned in sub-section 5 it is necessary to arrest the person in question."
The reason relied upon in the present case was that set out in sub-section 5(e), "To allow the prompt and effective investigation of the offence or of the conduct of the person in question."
PACE code G sets out a code of practice on the statutory powers of police officers. It provides, amongst other things:
"1.3 The use of the power must be fully justified. Officers exercising power should consider if necessary objectives can be met...
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...an individual who attends a police station is “fact specific” (at paras [47] and [49]); in Kandawala v Cambridge Constabulary CBS [2017] EWCA Civ 391, Hamblen LJ noted that the court requires to consider the facts as known to the officer at the time and that a decision to arrest is a discre......