Michael Ciaran Parker v The Chief Constable of Essex Police
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stuart-Smith |
| Judgment Date | 18 August 2017 |
| Neutral Citation | [2017] EWHC 2140 (QB) |
| Docket Number | Case No: HQ13X02240 |
| Court | Queen's Bench Division |
| Date | 18 August 2017 |
[2017] EWHC 2140 (QB)
Mr Justice Stuart-Smith
Case No: HQ13X02240
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Hugh Tomlinson QC and Ms Lorna Skinner (instructed by McAlinneys Solicitors) for the Claimant
Mr John Beggs QC and Ms Cecily White (instructed by DAC Beachcroft) for the Defendant
Hearing dates: 22nd, 23rd, 24th, 25th May 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The Claimant is best known by his stage name, Michael Barrymore. In the later years of the last century and the early years of this, he was extremely well known as a celebrity entertainer who appeared widely on television and elsewhere. At one stage he was married, but by the turn of the century he had come out as gay. He had a lifestyle which meant that he was staple fare for tabloid reporting. Early in the morning of 31 March 2001, after a night on the town in Harlow, he returned to his home at Roydon in Essex at about 2.47 am. Eight other people ended up at his home, including Stuart Lubbock. Mr Lubbock was a 31-year-old man who was heavily intoxicated but otherwise in good health. At 5.45 am he was found in the swimming pool, unconscious and not breathing. Attempts to resuscitate him were unsuccessful. Initially his death was not treated as suspicious, but the post-mortem examination carried out on the same day revealed severe anal injuries. In June 2001 two of the guests who had been at the house were arrested on suspicion of murdering Mr Lubbock. They were not charged because there was insufficient evidence to do so. The Claimant was arrested for drug offences and subsequently received a caution. He was not arrested and was not then treated by the police as a suspect in relation to the death of Mr Lubbock. An inquest into Mr Lubbock's death in 2002 returned an open verdict.
On 14 June 2007 the Claimant was arrested by officers of Essex Police on suspicion of raping and murdering Mr Lubbock. He was detained until the next day before being released on bail. He answered his bail on two occasions. On 10 September 2007 he was detained and interviewed again. That same day the CPS decided that there was insufficient evidence to justify charging him (or anyone else) with any offences. Neither he nor anyone else has been charged with any offences relating to the anal injuries that Mr Lubbock suffered or his death.
In 2013 the Claimant started the present proceedings against the Chief Constable of Essex Police alleging unlawful arrest and false imprisonment. Although the Defendant initially contended that the arrest had been lawful, an application to amend the Defence in October 2016 resulted in judgment being entered for the Claimant on liability because his arrest was unlawful. The Claimant claims that the unlawful arrest has caused him damage and pursues a claim for damages alleging very substantial financial losses. The Defendant's case now is that the Claimant is entitled to recover only nominal damages. Accordingly, on 21 December 2016 Master Eastman ordered that there be a trial of the preliminary issue "as to whether the Defendant has established:
i) The Claimant could and would have been lawfully arrested but for the delay in attendance of the designated arresting officer; and
ii) That, as a result, the Claimant is entitled only to nominal damages for false imprisonment."
The trial of the preliminary issue took place on and from 22 May 2017. This is my judgment on the preliminary issue. For the reasons set out below, I find that:
i) The Claimant could have been lawfully arrested by the designated arresting officer, DC Jenkins, but not by any other officer relevantly engaged in the operation;
ii) In the enforced absence of Ms Jenkins, who was delayed in traffic, if the Claimant had not been unlawfully arrested by PC Cootes he would have been unlawfully arrested by another officer. He would not have been lawfully arrested;
iii) As a result of (i) and (ii) the Defendant has failed to establish that the Claimant could and would have been lawfully arrested so as to bring the Defendant within the scope of what has been called the Lumba principle; and accordingly
iv) The Claimant is not restricted to recovering nominal damages only.
The Legal Principles
There is substantial agreement about the applicable legal framework. The starting point is that, in order to perform a lawful arrest, the arresting police constable must have in his or her mind reasonable grounds for (i) suspecting that the person being arrested is guilty of committing the offence for which he is arrested and (ii) believing it is necessary to arrest that person.
A number of authorities refer to the balance that must be maintained between the need to protect the public and bring criminals to justice on the one hand and the right of an individual not to be arrested on inadequate grounds. The need for the police not to be unduly hindered in the pursuit of criminals is often referred to in the authorities. As a timely reminder of the importance of striking the correct balance there is no need to go further than [219] of the judgment of Lord Collins JSC in Lumba (of which more later) where he said, in the context of an action for false imprisonment:
"Fundamental rights are in play. Chapter 39 of Magna Carta (1215) (9 Hen 3) said that "no free man shall be seized, or imprisoned … except … by the law of the land" and the Statute of Westminster (1354) ( 28 Edw 3, c 3) provided that "no man of what state or condition he be, shall be … imprisoned … without being brought in answer by due process of the law". That the liberty of the subject is a fundamental constitutional principle hardly needs the great authority of Sir Thomas Bingham MR (see In re S-C (Mental Patient: Habeas Corpus) [1996] QB 599, 603) to support it, but it is worth recalling what he said in his book The Rule of Law (2010), at p 10, about the fundamental provisions of Magna Carta: "These are words which should be inscribed on the stationery of the … Home Office.""
In O'Hara v Chief Constable of RUC [1997] AC 286 at 291H, Lord Steyn succinctly described this balance as "the compromise between the values of individual liberty and public order". Striking the balance will be acutely fact sensitive in each case. Thus, for example, the need to bring a serial killer to justice is not the same as the need to bring the perpetrator of a minor assault resulting in no injury, though both are criminal and there is a public interest that may be served in each case. On the other side of the scales, the impact upon a person who is arrested may be very great, as the Claimant alleges it was for him in this case. It is obvious that the impact of an arrest may be influenced by the personal circumstances of the person being arrested, the circumstances of the arrest and the offence for which the person is arrested. Without in any way prejudging the facts of the present case, it is also readily foreseeable that the fact of an arrest may have lasting adverse consequences for the person who is arrested, whether or not they are subsequently found guilty of, or even charged with, with any offence. Equally, the balance may be affected by circumstances such as whether the arrest is proposed to be made in the heat of a chase in the immediate aftermath of a crime or after the cool reflection of a prolonged review of evidence.
Parliament has provided the criteria for the striking of the balance between the public and private interests by setting them out in ss. 24(2), (4) and (5) of the Police and Criminal Evidence Act 1984. The statutory regime under which the police were operating when they arrested the Claimant, and the test to be applied by the Court, is as follows:
"(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.
(4) But the power of summary arrest conferred by subsection … (2) … is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.
(5) The reasons are—
[…]
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;"
S. 24(4) was introduced by amendment from 1 January 2006. Before that date questions relating to a belief in the need to effect an arrest in order to progress an investigation typically arose in a public law context: the arrested person might raise a challenge to the lawfulness of the discretionary decision to arrest him on Wednesbury unreasonableness grounds based on the motivation of the police. There are many examples of such cases: see, for example, Holgate-Mohammed v Duke [1984] 1 AC 437, 445E–446D per Lord Diplock, Castorina v Chief Constable of Surrey Local Govt Review Reports, 30 March 1996 241 and Cumming & Others v Chief Constable of Northumbria Police [2003] EWCA Civ 1844 at [16], [26] and [42] per Latham LJ.
It is important to remember that the necessity test introduced in 2006 by s.24(4) is in addition to the pre-existing possibility of a public law challenge and differs from it in material respects. A number of points arise. First, under the statute it is an essential pre-requisite to a lawful arrest that the arresting constable has reasonable grounds for believing that it is "necessary" (as opposed to merely desirable or convenient) to arrest the person in question for one of the...
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