Mark Richardson v The Chief Constable of West Midlands Police
| Judge | Mrs Justice Slade |
| Judgment Date | 29 March 2011 |
| Neutral Citation | [2011] EWHC 773 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: 0BM90089 |
| Date | 29 March 2011 |
[2011] EWHC 773 (QB)
Before:The Honourable Mrs Justice Slade Dbe
Case No: 0BM90089
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
AT BIRMINGHAM DISTRICT REGISTRY
Hearing dates: 8 th-9 th December 2010
Mrs Justice Slade:
The Claimant, a thirty-nine year old teacher of good character, claims that he was unlawfully arrested and detained on 16 th December 2009. He asserts that following an allegation that he had assaulted a pupil he was wrongfully arrested and that his detention thereafter was unlawful. He had attended a police station voluntarily to be interviewed. It is said that his arrest was unlawful because the arresting officer had no or no reasonable grounds for considering that his arrest was necessary: a precondition imposed by the Police and Criminal Evidence Act 1984 ('PACE') Section 24(4) by an amendment effective from 1 st January 2006. The Claimant claims damages for false imprisonment. The Claimant also seeks mandatory injunctions requiring the Defendant to destroy DNA samples, fingerprints and photographs taken as a consequence of his arrest and to delete or amend the entry of his arrest on the Police National Computer ('PNC').
This case raises the issue of the proper interpretation and application of the necessity requirement in PACE Section 24(4). These proceedings are brought with the support of the National Association of Schoolmasters and Women Teachers ('NASUWT') as it raises issues of general concern to teachers. They can be subject to allegations of assault on pupils which are properly investigated by police. There was unchallenged evidence, also given to a House of Commons Select Committee, whose report was published on 16 th July 2009, that such teachers attend police stations voluntarily for questioning, are arrested, released without charge and notwithstanding that no further action is taken may have the fact of their arrest noted on the record kept on the PNC. This is likely to blight their future employability and may adversely affect their current employment.
The relevant facts
Save for the reason why the Claimant was arrested, the relevant facts are not in dispute.
In early December 2009 the Claimant was told by police that an allegation had been made against him that he had assaulted a pupil at the school where he was a teacher. He contacted his union who put him in touch with a solicitor. The Claimant had given a contemporaneous account to the school of the incident on 26 th November 2009 which gave rise to the allegation. He said that when standing in a doorway directing students:
"someone kicked the door hitting me in the back. I turned around and put my arm up to protect myself from a repeated blow by the door. [X] walked forward into my outstretched arm and hand which connected with him at neck height."
No marks were seen on the boy. The Claimant was suspended from the school. The school obtained accounts from the boy, other pupils and the Claimant. Police interviewed the boy and his family. By 22 nd December 2009 at the latest it was clear the boy's parents did not want to pursue a complaint with the police. The school were going to take the allegation through their disciplinary process and the governors were to meet to consider it.
A witness investigation log compiled by the officer in charge of the case, PC Downie, records that on 4 th December 2009 she spoke to the Claimant on the telephone and informed him about the possibility of a 'local resolution' between him and the pupil. After further exchanges of telephone calls, the Claimant's solicitor telephoned PC Downie on 9 th December 2009 to inform her that the Claimant would not accept a local resolution. An appointment was made with PC Downie for the solicitor and the Claimant to attend Bloxwich police station.
On 16 th December 2009 the Claimant and his solicitor attended Bloxwich police station by appointment. The solicitor, Mr Miah, and the Claimant gave evidence. PC Downie neither gave oral evidence nor made a statement for the purpose of these proceedings. If he accepted a 'local resolution' the Claimant would have had to accept that he had assaulted the pupil. He did not accept that he had assaulted the pupil and therefore refused a 'local resolution'. It is not in dispute that PC Downie informed the Claimant that if he did not accept a local resolution he would have to be arrested and interviewed. Mr Miah protested that an arrest was unnecessary. PC Downie's log confirms that the Claimant was prepared to have a voluntary interview. Mr Miah asked to speak to a sergeant. DS Smith confirmed to Mr Miah that the Claimant would be arrested. As the custody block at Bloxwich police station was closed, Mr Miah and the Claimant were asked to and did travel to Walsall police station. PC Downie met them there and arrested and cautioned the Claimant. Her log shows that this was done at 17.35. PS Rees' entry in the custody record gives the time of arrest as one hour earlier, 16.35.
PS Rees, the custody sergeant at Walsall police station made a statement on 23 rd September 2010 and gave evidence. He wrote that:
"3. At 16.37 hours I was aware that the Claimant…had been arrested at Walsall police station by PC 20275 Downie…
4. I was also informed that the arrest had been made to allow the prompt and effective investigation of the offence or of the conduct of the person in question.
5. I considered the necessity of the arrest and detention and believed that the Claimant's detention was required in order to obtain evidence by questioning because:
(1) the allegations as presented to me were serious in that they related to a Child Protection investigation of an incident where a person in a position of trust was alleged to have taken hold in anger of the throat of a child of 11 or so – a vulnerable individual and so should be thoroughly investigated.
(2) it was important to the investigation that the Claimant should be interviewed to the best effect.
(3) although I considered whether a voluntary interview would achieve the same objective, I concluded that the practical and sensible option was arrest and detention of the Claimant since:
(i) whether he said he would stay or not, Police and Criminal Evidence Act 1984 provided that he was entitled to leave at will unless arrested and the Codes attached provided that he should be reminded of that from time to time whilst at the station;
(ii) his arrest and detention were little more than a formality, causing little or no interference with his liberty if he did intend to stay throughout the questioning;
(iii) if he changed his mind as to staying, or was advised by his solicitor who accompanied him, that he was free to leave part-way through the interview, there would be confusion about his status and difficulty about his then being arrested which might prejudice the investigation".
PS Rees completed the custody record in which he wrote:
"16/12/09 – 16:52hrs – Solicitor log entry made on 16/12/09 at 16:47GMT to Thompsons Solicitors
15/12/09 – 17:11hrs – Representations made by solicitor that as the male is attending voluntarily should be interviewed under caution and not arrested. Also states that this matter was to be locally resolved and PIC only arrested when resolution declined. I have explained that where local resolution is not appropriate for whatever reason then that does not preclude a criminal justice route. I have also stated that with a statement under caution then the PIC would be under no obligation to remain for the duration of an interview. Clearly should he attempt to leave he would be arrested and therefore as per PACE where officers think that a person would not be allowed to leave but would be arrested then they should be arrested. In my opinion this is a prompt and effective investigation."
PS Rees explained in his oral evidence that as custody officer his role was to make sure that the arrest was justified. He had to be satisfied that there was a reasonable suspicion that the person detained has committed an offence. PS Rees confirmed that Mr Miah raised the question of necessity for arrest with him. He recorded the representations made and his response in the Custody Record. Nothing was left out. In response to Mr Miah's points, he considered that as someone attending voluntarily the Claimant could leave an interview at any time. The interview would stop and he would have to be arrested and transported to a custody suite. This would disrupt the free flow of the interview. Mr Rees considered that in the circumstances the option of arrest 'was the right way forward'. He said in oral evidence that he took the view that arrest was appropriate because of the seriousness of the allegation and that it involved a person in a position of trust. Such a person should be formally interviewed. 'As a matter of routine' such a matter 'should be dealt with in the custody environment'. However PS Rees said that he did not review the evidence. He also said that if the Claimant were arrested bail conditions could be set for his release.
PS Rees said that he was not aware that the Claimant had attended Bloxwich police station voluntarily and had travelled to Walsall. The Claimant had travelled in his own transport. PS Rees was given no indication that the Claimant would not remain during his interview. He agreed that an interview would be conducted under caution and would have the same evidential value whether or not the Claimant was arrested.
The custody record shows that at 17.14 the Claimant went to the fingerprint room. He gave evidence that his fingerprints and a DNA sample were taken and he was...
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