Michael Ciaran Parker v The Chief Constable of Essex Police
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hallett,Sir Ernest Ryder SPT,Sir Brian Leveson P |
| Judgment Date | 11 December 2018 |
| Neutral Citation | [2018] EWCA Civ 2788 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2017/2897 |
| Date | 11 December 2018 |
[2018] EWCA Civ 2788
The President Of The Queen's Bench Division ( Sir Brian Leveson)
Lady Justice Hallett D.B.E.
and
The Senior President of Tribunals ( Sir Ernest Ryder)
Case No: A2/2017/2897
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Stuart-Smith
HQ13X02240
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Faulks QC, John Beggs QC and Cecily White (instructed by DAC Beachcroft) for the Chief Constable of Essex Police
Hugh Tomlinson QC and Lorna Skinner (instructed by McAlinneys Solicitors) for Mr Parker
Hearing dates: 20–21 November 2018
Judgment Approved
In the early hours of 31 March 2001, Michael Parker (a celebrity entertainer who is better known by his stage name, Michael Barrymore) returned to his home with eight guests. What was clearly an alcohol and drug fuelled gathering ensued. Approximately three hours later, one of his guests, Mr Stuart Lubbock, was found unconscious and not breathing in the swimming pool, dressed only in his boxer shorts. He was taken to hospital but, at 8.23 am, pronounced dead.
Although inadequate steps were taken to protect the scene at the time, a police investigation followed and, on 6 June 2001, Jonathan Kenney and Justin Merritt, two of Mr Parker's guests, were arrested on suspicion of murder. No charges were brought and, in relation to Mr Lubbock, a subsequent inquest returned an open verdict. There was a further inquiry in 2003 (initiated when Mr Parker challenged one of the conclusions of the pathologist) but the investigation was only formally reopened in 2006: it was led, as senior investigating officer, by Det. Supt. Gareth Wilson.
This re-investigation led to the police concluding that Mr Parker, as well as Mr Kenney and Mr Merritt, were to be considered suspects and a decision was taken that, in an attempt to obtain further evidence, all three (who were in different parts of the country) should be arrested simultaneously on 14 June 2007. In relation to Mr Parker, that arrest was to be effected by Det. Con. Susan Jenkins who had played a central role in the re-investigation and was well aware of the evidence: she believed she had reasonable grounds both to suspect Mr Parker of committing an offence and to conclude that it was necessary to effect his arrest. In the event, she was detained in traffic and a surveillance officer (P.C. Cootes) was ordered to effect the arrest, which he did.
Following the arrests, no material additional information came to light and, in September 2007, the police were informed by the Crown Prosecution Service (“CPS”) that there was insufficient evidence for any charge to be brought. Mr Parker (who had been released on bail on the day following his arrest) was informed.
On 5 April 2013, Mr Parker commenced proceedings against the Chief Constable of Essex Police for substantial damages for false imprisonment following his unlawful arrest. Damages were claimed, valued in the order of £2.4 million, assessed on the basis that Mr Parker was re-establishing his career following the publicity which flowed from Mr Lubbock's death but that, after his arrest, this became impossible.
Initially, the Chief Constable contended that the arrest was lawful but, in 2016, it was admitted on his behalf that the arrest was unlawful so that, as a consequence, Mr Parker had been falsely imprisoned. This was on the basis that, in the events which obtained, the arresting officer did not personally have reasonable grounds for the necessary suspicion to justify arrest as required by s. 24(2) of the Police and Criminal Evidence Act 1984 (“PACE”): see O'Hara v Royal Ulster Constabulary [1997] AC 28. The alternative argument advanced on behalf of the Chief Constable was that Mr Parker was entitled only to nominal damages on the basis that he could (and would) have been arrested lawfully and so was entitled only to nominal damages. On 21 December 2016, Master Eastman ordered the trial of a preliminary issue articulated as whether (a) Mr Parker could and would have been lawfully arrested but for the delay in attendance of Det. Con. Jenkins, and (b) that as a result he was entitled only to nominal damages.
Between 22 and 25 May 2017, that issue was tried by Stuart-Smith J who, on 18 August 2017, held that Mr Parker could lawfully have been arrested by Det. Con. Jenkins, but that he was nonetheless entitled to substantial damages for false imprisonment, because had he not been unlawfully arrested by P.C. Cootes, he would have been unlawfully arrested by another of the surveillance officers present on the scene that day who, similarly, did not have the requisite information to form reasonable beliefs. The judgment of Stuart-Smith J is impressive and thorough: see [2017] EWHC 2140 (QB). Both parties rightly paid tribute to it.
Leave to appeal the decision on the grounds that it was wrong to conclude that Mr Parker was entitled to more than nominal damages was refused by the judge but later granted by Flaux LJ. By a Respondent's Notice, Mr Parker seeks to uphold the decision not only on the grounds decided by Stuart-Smith J but also, in the alternative, on the grounds that he should have found that the arrest of Mr Parker was unlawful either because there were no reasonable grounds for the arrest or that it was not necessary. This judgment has contributions from all members of the court.
The Background
This summary relies heavily on the detailed analysis of the facts set out in the judgment of Stuart-Smith J (at [58] to [105]) which I gratefully adopt. Although the argument on the appeal turns on a question of law, the cross appeal requires a more detailed examination of the facts and, in order to provide context and to address the arguments advanced, it is necessary, at least in summary, to recount them.
After an evening spent in Harlow, Essex, culminating in a visit to the Millennium Club, it was at about 2.45 am in the early hours of 31 March 2001 that Mr Parker returned, with eight other people, to his home in Roydon. The number included Mr Kenney (with whom Mr Parker had started a relationship in February of that year), Mr Merritt, and Mr Lubbock. There was evidence that Mr Parker smoked cannabis with one or more of his guests, and that he took cocaine and offered it to others, including Mr Lubbock. Mr Lubbock was 31 years of age and heavily intoxicated but otherwise in good health.
At about 5.47 am, Mr Lubbock was found in the pool, unconscious and not breathing, dressed only in boxer shorts. Attempts to resuscitate him failed and the emergency services were called; they arrived at 5.56 am. Mr Lubbock was taken to Princess Alexandra Hospital in Harlow. As I have recounted, at 8.23 am, he was pronounced dead.
After Mr Lubbock was found in the pool, but before the arrival of the police, Mr Parker left his house (apparently carrying a bundle of material) and went to a nearby flat. At 6.10 am, the police arrived and, at 7.03 am, Mr Parker's personal assistant also arrived telling the police where Mr Parker was. By 7.49 am, police officers had left the scene to interview him and a statement was taken. At some stage, having been photographed in situ by the police, a pool thermometer went missing; what happened to it remains unknown. Finally, at 5.00 pm that day, Mr Parker and Mr Kenney were admitted to the Priory Hospital in Southampton. Mr Parker stayed in the Priory until 11 May 2001, when he was discharged.
The explanation given by and on behalf of Mr Parker for leaving his house was that he left at the suggestion of others to avoid the media frenzy that would be bound to follow. In his evidence before Stuart-Smith J, Det. Supt. Wilson relied on this leaving of the scene as evidence of Mr Parker's attempt to manipulate matters, but he later accepted that he had no reason to disbelieve the explanation that Mr Parker had proffered.
The initial post-mortem was undertaken by Dr Heath on the day of death. It demonstrated alcohol in a blood sample taken from Mr Lubbock at a concentration of 2.23 milligrams per millilitre of blood (nearly three times the drink drive limit) and MDMA at 0.92 micrograms, MDEA at 0.1 micrograms and MDA at 0.04 micrograms per millilitre of blood. These findings suggested the ingestion of ecstasy (towards the higher end of a wide range of values). Cocaine was also found suggestive of use within a few hours of death. At the subsequent inquest, Professor Forrest gave evidence that the level of mixed drug intoxication was sufficient itself to be the cause of death. The post-mortem, however, also revealed serious anal injuries that appeared consistent with recent penetration by a firm object. Otherwise, there was no evidence of natural disease or any mark of violence. In light of these findings, after the post mortem (in the late afternoon of 31 March), the police began to treat the death as suspicious.
On 6 June 2001, Mr Kenney and Mr Merritt were arrested on suspicion of murder. Mr Parker was arrested on suspicion of possession and supply of drugs. On 10 October 2001, he accepted a caution for the possession of cannabis.
Professor Milroy conducted a second post-mortem on 19 June 2001. By 11 December 2001, all lines of enquiry were considered to have been exhausted and the investigation into Mr Lubbock's death was suspended. On 5 March 2002, the CPS advised Essex Police that there was no evidence upon which any criminal court could conclude that there had been any wrongful act done by any person in relation to Mr Lubbock's death or bodily injury, and that no further action should be taken against Mr Parker, Mr Merritt, Mr Kenney or any other of Mr Parker's guests. In July 2002, the investigation was...
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