McQuade v Chief Constable of the Humberside Police
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE LAWS,SIR MARTIN NOURSE |
| Judgment Date | 12 July 2001 |
| Neutral Citation | [2001] EWCA Civ 1330 |
| Docket Number | B2/2000/0412 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 July 2001 |
[2001] EWCA Civ 1330
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON-UPON-HULL COUNTY COURT
(His Honour Judge Bowers)
Royal Courts of Justice
Strand
London WC2
Lord Justice Peter Gibson
Lord Justice Laws
Sir Martin Nourse
B2/2000/0412
MR DAVID WILBY QC and MR NEIL CAMERON (Instructed by Humberside Police, Corporate Services Branch, Legal Services Unit, Police Headquarters, Queen's Gardens, Hull, HU1 3DJ) appeared on behalf of the Appellant.
MR PHILLIP HAVERS QC acting Pro Bono (Instructed by Kingsley Knapley, Knights Quarter, 14 St John's Lane, London, EC1M 4AJ on behalf of the RCJ Advice Bureau) appeared on behalf of the Respondent.
I will ask Laws LJ to give the first judgment.
This is a defendant's appeal, with permission granted by the judge below, against an order made in the Kingston-upon-Hull County Court on 22nd March 2000 by His Honour Judge Bowers, when he gave judgment for the claimant in the action for damages to be assessed for wrongful arrest and personal injury.
The incident which gave rise to the claim took place at about 11.15 p.m. on 14th June 1996 at the claimant/respondent's home in Hull, when he was arrested by PC Tracy Connolly. She was exercising, or purporting to exercise, the common law power of arrest for breach of the peace. The judge held that the arrest was unlawful because (I summarise) there was no public element or public dimension involved in the circumstances of the arrest. In essence the issue on the appeal is whether such an element or dimension is required where a police officer makes an arrest for breach of the peace at common law. Mr Havers QC for the respondent has applied today for permission to put in a respondent's notice to assert that, even if the judge was wrong on this issue, the evidence in the case makes it plain that PC Connolly did not have reasonable or probable cause to make the arrest. At the close of the argument, we indicated that we would refuse permission and I shall give my reasons for doing so in due course. It is convenient first to recount the facts a little more fully.
The respondent's daughter, Katrina, was not herself at home on the evening in question but had spoken to her mother on the telephone. An argument was going on between her mother and father. The phone was cut off. She tried to get through again but could not. She thought the phone was disconnected. She panicked. She made a 999 call to the police. At length police officers, including PC Tracy Connolly, arrived at the house. The wife, Mrs McQuade, let them in. Mrs McQuade went upstairs, at the request of the police, leaving the respondent, her husband, downstairs. PC Connolly described the respondent, who was bare chested and had cuts to his face, as being in an irate and angry mood. On the officer's evidence, he wanted to get past the police to go to where his wife was upstairs. The police were seeking to keep him from her. He was acting, she said, very aggressively: shouting, swearing and hurling abuse. She said he was very heavily in drink. At length, he was handcuffed and PC Connolly arrested him, as she put it in terms, to prevent a further breach of the peace.
In his evidence the respondent said he had never used violence upon his wife and never would, and the argument between them was finished by the time the police arrived. Mrs McQuade said in her testimony that he had never been violent towards her. She told the police that he had not hit her. The police did not question Mrs McQuade while she was upstairs in order to ascertain what the position truly was and what the events of that evening had in reality been.
In due course the respondent brought these proceedings against the Chief Constable of Humberside, alleging that he had been wrongly arrested and, accordingly, falsely detained or imprisoned. His case so far as relevant to the appeal is that the arrest executed by PC Connolly at his home had been unlawful. The judge heard submissions of law on 22nd March 2000 after the conclusion of the evidence which had been given before a jury.
In civil actions involving a claim of wrongful arrest, albeit such claims are heard by a jury, it is well settled that the question whether there was reasonable and probable cause for the arrest is to be determined by the judge alone: although wherever there is conflicting evidence as to the relevant events the conflict is to be resolved by seeking the assistance of the jury: see the well-known passage in the judgment of Diplock LJ as he then was in Dallison v Caffrey (1965) 1 QB 348, 371–372. 8. On 22nd March 2000 it was submitted to His Honour Judge Bowers by reference to authority to which I shall come that there cannot at law be any breach of the peace, or threatened breach of the peace, without some element of disturbance, or threatened disturbance, to a member or members of the public, strangers to the immediate dispute. The judge's ruling is to be collected from two or three passages in the transcript of the argument on 22nd March. First, referring specifically to certain observations which have been made by Purchas and Glidewell LJJ in McConnell [1990] 1 WLR 365, to which I must return, the judge said this (transcript 17E):
“It is fairly obvious from what Glidewell LJ said that they” [that is the Lord Justices] “would not, and they did not, consider there was any need for an outside member of the public to be involved in order to entitle a person's arrest and, as I understand it, the decision seems to be that in law it is possible to have a breach of the peace on private premises without any legal requirement that there must be some involvement of the public as a matter of law; but as a matter of evidence and pragmatism, which both Purchas LJ and Glidewell LJ say, the question of whether there were reasonable grounds to apprehend a breach of the peace must involve the overspill, in my judgment, of the domestic dispute beyond the bounds of the property of which it is being held, otherwise I cannot see any reason whatsoever why, for example, Purchas LJ says:
`Clearly a purely domestic dispute will rarely amount to a breach of the peace. But, in exceptional circumstances, it might very well do so. Whether those particular circumstances which come to pass on private premises are sufficient to support a reasonable apprehension that a breach of the peace was about to occur will depend upon the circumstances in which the preventive steps are taken.'
So as a bold matter, and bald matter of law, he was saying it can take place on private premises, but, in my judgment, it is clear from the obiter remarks of him and Glidewell LJ that the assessment of whether there were reasonable grounds to apprehend a breach of the peace means that the definition of the breach of the peace has to spill over beyond just Mrs. McQuade in this case, and there has to be some apprehension that it would in some way disturb the public, either in the sense that the violence to Mrs McQuade was overheard, or they were likely to become involved in it.”
Then at 20H in the same transcript, there appear these few words:
“an assault on private land I do not think amounts to breach of the peace, and I think that is the difference. That is what I have said and that is the way I rule.”
A:
“it seems to me that the breach of the peace aspect is not just personal violence within a home, I think there has got to be an element to justify the reasonable grounds for a breach of the peace, and I think the definition of the breach of the peace does”
the transcript includes the word “not” with a question mark, but I think the negative is rightly omitted,
“does involve some external or some involvement of other members of the public.”
Thereafter, however, the argument continued. After 10 more pages of transcript the judge said this, in the presence of the jury (31 A):
“I have decided that there is essentially a public aspect to a breach of the peace, and that it does involve violence, or the threat of violence, but there has got to be a public dimension to that, even if it is simply a question of either being overheard, observed or the violence overspilling out of the house. Now, it is strictly possible, therefore, to have a breach of the peace within a house, but, in my judgment, and this is why I have been going through the authorities, there has to be some effect outside the two people within their private home. A breach of the peace is really a breach of the Queen's peace, which runs for the benefit of all of us in the public.
Now, a police officer can arrest somebody if they honestly believe there is going to be a breach of the peace, and if that belief is based on reasonable grounds, but I have decided, and this is why it really takes this case out of your hands altogether, that a simple risk of an assault within the house, which is what PC Connolly said, is not enough to justify arresting for breach of the peace, that is the point.”
These conclusions meant that the arrest executed by PC Connolly had, in any event, to be regarded as unlawful. In those circumstances, the judge, having decided to grant permission to appeal to the defendant Chief Constable in relation to the central issue of the meaning of breach of the peace, simply made an order for judgment for the claimant for damages to be assessed. (That may be collected at 34F of the transcript.)
On the same day, 22nd March 2000, His Honour Judge Bowers delivered a short judgment in somewhat more formal a guise. That is separately transcribed and is before us. In it he dealt...
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