Michael Overd v The Chief Constable of Avon and Somerset Constabulary
| Jurisdiction | England & Wales |
| Judge | Mr Justice Linden |
| Judgment Date | 19 November 2021 |
| Neutral Citation | [2021] EWHC 3100 (QB) |
| Docket Number | Case No: E01BS396 |
| Court | Queen's Bench Division |
[2021] EWHC 3100 (QB)
IN THE HIGH COURT OF JUSTICE
HIGH COURT APPEAL CENTRE, BRISTOL
ON APPEAL FROM THE BRISTOL COUNTY COURT
JUDGMENT OF HHJ RALTON DATED 26th JANUARY 2021
COUNTY COURT REF: E01BS396
THE HONOURABLE Mr Justice Linden
Case No: E01BS396
Mr Iain Daniels (instructed by Andrew Storch Solicitors) for the Claimants
Mr Mark Ley-Morgan (instructed by the Legal Services Directorate of Avon and Somerset Constabulary) for the Defendant
Hearing dates: 21, 22 October 2021
Approved Judgment
Outline of the appeal
The Appellants, who I will refer to as the Claimants, are evangelical Christians. On the afternoon of Saturday 6 July 2016, they were arrested by officers of the Defendant at Broadmead shopping centre in Bristol after complaints from members of the public about the content of their street preaching. These complaints were to the effect that their preaching was racist and anti-Islamic and was causing a disturbance. A crowd had gathered and, on arrival at the scene, officers concluded that public disorder was imminent.
Mr Overd was arrested on suspicion of an offence under section 50 of the Police Reform Act 2002. This provides, in summary, that where a constable in uniform has reason to believe that a person is, or has been, acting in an anti-social manner they may require that person to give his name or address. Failure to do so is an offence. The other three Claimants were then arrested on suspicion of a racially aggravated offence under section 5 Public Order Act 1986 i.e. using “threatening or abusive words or behaviour….within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby”.
The Claimants were detained for periods of 6–7 hours before being released on bail that night. They were then prosecuted under section 5 of the 1986 Act but the prosecutions ultimately failed. In the case of Mr Karns, the charges were dropped before they came to court. The other three Claimants were tried at Bristol Magistrates Court on 23, 24 and 27 February 2017. A submission of no case to answer succeeded in the case of Mr Clark. Mr Overd and Mr Stockwell were convicted, but their convictions were overturned on appeal.
The Claimants then brought proceedings in the Bristol County Court alleging breaches of Articles 9, 10 and/or 11 of the European Convention on Human Rights (“ECHR”), wrongful arrest, assault/trespass to the person/battery, false imprisonment, malicious prosecution and misfeasance in public office. By Order dated 12 February 2021, His Honour Judge Ralton dismissed all of the Claimants' claims after a trial which was conducted in person over a period of 8 days with Messrs Karns and Stockwell attending remotely. The Judge's reasons for his decision are set out in a Reserved Judgment dated 26 February 2021 (“the Judgment”).
By Order dated 12 May 2021, Henshaw J granted limited permission to appeal against the Judge's Order as follows:
“a) granted as to Grounds 1–5, insofar as they relate to the lawfulness of the Claimants' arrests and their claims for breach of Convention rights in that regard;
b) granted as to Ground 9, insofar as it relates to the lawfulness of the First Claimant's arrest on 19 August 2017 (Particulars of Claim § 31 (f)(ii)) and the dispersal orders referred to in Particulars of Claim § 31 (f)(i), (iii) and (iv)), and his claims for breach of Convention rights in connection with those matters, but otherwise refused as to Ground 9;
c) refused insofar as they relate to the Claimants' claims for detention in custody, malicious prosecution and misfeasance in public office; and
d) refused as to Grounds 6, 7 and 8.”
By way of further explanation:
i) Grounds 1–3 relate to the dismissal of the Claimants' claims under the Human Rights Act 1998. These Grounds complain, in summary, that the Judge failed to give sufficient consideration to the Claimants' ECHR rights, that he was “unreasonable” to find that the officers had “ a legitimate aim” for the purposes of the relevant provisions, and that he erred in his approach to the question of proportionality. The Claimants also contend that the Judge erred in failing to consider the officers' “positive duty” to protect the Claimants' ECHR rights in relation to each of their arrests and that his findings in this regard were “unreasonable”. The particular points which Henshaw J highlighted as giving rise to a realistic prospect of success for the appeal were:
a) as to the limited and second hand information about what had been said by the Claimants which the Judge found (at [31]–[34] of the Judgment) was the basis for the officers' suspicion that racially aggravated public order offences had been committed; and
b) as to the question whether the Judge's findings at [38] of the Judgment suggested that, rather than the Claimants' speech being so provocative that members of the crowd might “without behaving wholly unreasonably” be moved to violence, the problem lay with two or three members of the audience who officers knew to be troublemakers and liable to instigate unlawful violence. In this regard Henshaw J referred to the decision of the Divisional Court (Sedley LJ and Collins J) in Redmond-Bate v Director of Public Prosecutions [2000] HRLR 249.
ii) Ground 4: alleges that the Judge erred in Mr Overd's particular case in failing to deal with his argument that his arrest was unlawful because he had not been informed of the power to arrest for an offence under section 50 of the 2002 Act and that, in any event, that was not the basis for his arrest.
iii) Ground 5: complains that the Judge was wrong to hold that the arresting officers had reasonable grounds to suspect that any of the Claimants had committed an offence given his findings as to what had been reported to the police, given that the officers did not know what each of the Claimants had actually said, and given that the Claimants were exercising their ECHR rights. The Judge's findings in this regard are said to have been “unreasonable”. Mr Daniels confirmed that this Ground was, in effect, a complaint that the Judge was wrong to dismiss the claim that the arrests of the Claimants were unlawful at common law.
iv) Ground 9: complained that the Judge had failed to deal adequately with Mr Overd's case that officers of the Defendant had breached his ECHR rights on other occasions. Henshaw J was satisfied that it was arguable that the Judge should have dealt more fully with 4 incidents — on 19 August, 8 September and 28 October 2017 and 7 January 2018 — when Mr Overd had been arrested or issued with a dispersal notice pursuant to section 35 Anti-Social Behaviour, Crime and Policing Act 2014 in Taunton and Bridgwater.
Henshaw J expressly did not give permission to challenge the Judge's findings that, for the purposes of section 24(4) Police and Criminal Evidence Act 1984, there were reasonable grounds for believing that it was “necessary” to arrest the Claimants for one of more of the reasons set out in section 24(5) of that Act, assuming that there were reasonable grounds to suspect that they had committed an offence. This was Ground 6. He also refused permission to challenge the Judge's conclusions on the legality of the Claimants' detentions assuming that their arrests were lawful (Ground 7). And he refused permission in relation to Ground 8, which disputed the Judge's finding that a second arrest of Mr Overd had not been challenged by him in the Claim.
The Claimants did not challenge the Judge's dismissal of their claims for malicious prosecution – the decision to prosecute had been entirely that of the Crown Prosecution Service rather than that of the Defendant — and misfeasance in public office. He found that there was no evidence that the Defendant or its officers had in any way sought to manipulate the process, nor of any malice on their part. No challenge to the decision of Henshaw J as to the scope of the permission granted was made by the Claimants either.
As I read Henshaw J's Order and reasons, he therefore gave permission for the following issues to be considered in this appeal:
i) Whether the Judge was wrong to hold that the arrests of the Claimants were compatible with Articles 9, 10 and/or 11 ECHR?
ii) Whether the Judge erred in the manner alleged in Ground 4 in relation to his decision as to the reason for the arrest of Mr Overd?
iii) Whether the Judge erred in finding that there were reasonable grounds to suspect the Claimants of having committed offences under section 50 of the 2002 Act in the case of Mr Overd, and under section 5 of the 1986 Act in the case of the other Claimants?
iv) Whether the Judge erred in failing to consider, in relation to each of the four subsequent incidents in respect of which permission was given by Henshaw J, whether there was a breach of Mr Overd's ECHR rights?
As I understood it Counsel for the parties interpreted the scope of the permission granted in the same way, and the appeal was argued on this basis.
The Hearing
In view of the skeleton arguments which had been prepared by Counsel, and the 891-page appeal bundle, I felt it necessary to remind them of paragraph 5 of Practice Direction 52A and of CPR 52.21 and to ask about the basis for the appeal.
Mr Daniels had prepared a 30 page skeleton argument which, with respect, was not “concise” and did not “define and confine the areas...
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