Mohammed-Holgate v Duke

This appeal is in a civil action for false imprisonment brought by the appellant, Mrs. Holgate-Mohammed, against the Chief Constable of Hampshire and arising out of her arrest without warrant at her home on 8 May 1980 by an officer of the Hampshire constabulary, Detective Constable Offin, and her subsequent detention in custody at Southsea Police Station for a period of about six hours after which time she was released on police bail under section 38(2) of the Magistrates' Courts Act 1952 (now section 43(3) of the Magistrates' Courts Act 1980). She was later informed by the police that she need not surrender to her bail as no further proceedings would be taken against her.

Your Lordships are not concerned with rights of arrest at common law for it is not disputed that an arrestable offence had been committed, and what Detective Constable Offin was purporting to exercise was the statutory power of arrest without warrant conferred upon him by subsections (4) and (6) of section 2 of the Criminal Law Act 1967. Subsection (6) confers a right of entry on premises by a constable for the purpose of exercising the power of arrest conferred upon him by subsection (4) which reads as follows:

"(4) Where a constable, with reasonable cause, suspects that an arrestable offence has been committed, he may arrest without warrant anyone whom he, with reasonable cause, suspects to be guilty of the offence."

The word "arrest" in section 2 is a term of art. First, it should be noted that arrest is a continuing act; it starts with the arrester taking a person into his custody, (sc. by action or words restraining him from moving anywhere beyond the arrester's control), and it continues until the person so restrained is either released from custody or, having been brought before a magistrate, is remanded in custody by the magistrate's judicial act. In practice since the creation of organised police forces during the course of the 19th century, an arrested person upon being taken into custody by a constable is brought to a police station and it is there that he is detained until he is either brought before a magistrate or released whether unconditionally or upon police bail. In modern conditions any other way of dealing with an arrested person once he has been taken into custody would be impracticable; and section 43 of the Magistrates' Courts Act 1980, providing for grant of bail by the police, is drafted on the assumption that this is what will be done.

Strictly speaking, the arrester may change from time to time during a continuous period of custody since the arrester is the person who at any particular time is preventing the arrested person from removing himself from custody; but although this may be important in a case where the initial arrest has been made by a person who is not a constable (a "citizen's arrest"), it is without practical significance in the common case of arrest by a constable and detention in police custody at a police station, since section 48(1) of the Police Act 1964 makes the chief constable of the police area vicariously liable for torts committed by members of the force that he commands in the performance or purported performance of their duties as constables.

Secondly, it should be noted that the mere act of taking a person into custody does not constitute an "arrest" unless that person knows, either at the time when he is first taken into custody or as soon thereafter as it is reasonably practicable to inform him, upon what charge or on suspicion of what crime he is being arrested.Christie v. Leachinsky[1947] A.C. 573. In the instant case, however, there is no suggestion that Mrs. Holgate-Mohammed, when she was arrested at her home by Detective Constable Offin, was not fully informed by him of the offence, burglary of jewellery at a house at which she was residing in December 1979, which he suspected her of having committed. Very shortly after the burglary some of the jewellery had been sold to a jeweller in Portsmouth; but it was not until more than four months later, at the end of April 1980, that the victim of the burglary recognised her jewellery in the shop-window and informed the police of this. The jeweller's description of the vendor was thought by the victim to resemble that of her former lodger, Mrs. Holgate-Mohammed, and she so informed Detective Constable Offin who had accompanied her to the jeweller's shop.

Section 2(4) makes it a condition precedent to a constable's having any power lawfully to arrest a person without warrant, that he should have reasonable cause to suspect that person to be guilty of the arrestable offence in respect of which the arrest is being made. Whether he had reasonable cause is a question of fact for the court to determine. The county court judge by whom Mrs. Holgate-Mohammed's action for false imprisonment was heard at first instance and who had the advantage of hearing and seeing the witnesses, held that Detective Constable Offin did have reasonable cause for suspecting her to be guilty of the crime of burglary. The Court of Appeal, who had the advantage of examining either a transcript or a note of the oral evidence, came to the same conclusion. Your Lordships have enjoyed neither of these advantages. The only facts that were available to this House are such fragments as can be garnered from the judgments below. Your Lordships are thus faced upon this issue with concurrent findings of fact with which there is no material that could possibly justify interference.

There are likewise concurrent findings of fact of the courts below that the duration of Mrs. Holgate-Mohammed's detention at Southsea Police Station was, in the circumstances of which your Lordships are not fully apprised, not unreasonable. With the findings on this issue, too, this House in my view is in no position to interfere.

So the condition precedent to Detective Constable Offin's power to take the appellant into custody and the power of the other constables at Southsea Police Station to detain her in custody was fulfilled; and, since the wording of the subsection under which he acted is " may arrest without warrant", this left him with an executive discretion whether to arrest her or not. Since this is an executive discretion expressly conferred by statute upon a public officer, the constable making the arrest, the lawfulness of the way in which he has exercised it in a particular case cannot be questioned in any court of law except upon those principles laid down by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation[1948] 1 K.B. 223, that have become too familiar to call for repetitious citation. The Wednesbury principles, as they are usually referred to, are applicable to determining the lawfulness of the exercise of the statutory discretion of a constable under section 2(4) of the Criminal Law Act 1967, not only in proceedings for judicial review but also for the purpose of founding a cause of action at common law for damages for that species of trespass to the person known as false imprisonment, for which the action in the instant case is brought.

The first of the Wednesbury principles is that the discretion must be exercised in good faith. The County Court judge expressly found that Detective Constable Offin in effecting the initial arrest acted in good faith. He thought that he was making a proper use of his power of arrest. So his exercise of that power by arresting Mrs. Holgate-Mohammed was lawful, unless it can be shown to have been "unreasonable" under Wednesbury principles; of which the principle that is germane to the instant case is: "He [sc. the exerciser of the discretion] must exclude from his consideration matters which are irrelevant to what he has to consider."

As Lord Devlin, speaking for the Judicial Committee of the Privy Council in Hussein v. Chong Fook Kam[1970] A.C. 942, 948, said: "Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.' Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage", i.e. bringing the suspect before a magistrates' court upon a charge of a criminal offence. The other side of the same coin is where the investigation, although diligently pursued, fails to produce prima facie proof which, as Lord Devlin in the same case also pointed out (p.949), must be in the form of evidence that would be admissible in a court of law. When the police have reached the conclusion that prima facie proof of the arrested person's guilt is unlikely to be discovered by further inquiries of him or of other potential witnesses, it is their duty to release him from custody unconditionally.Wiltshire v. Barrett[1966] 1 Q.B. 312.

Detective Constable Offin and, no doubt, those other officers of the Hampshire Police who had been concerned in the inquiries into the burglary that had been committed in December 1979, were well aware that their case against Mrs. Holgate-Mohammed depended upon whether the jeweller would be able to identify on an identification parade, a customer whom he had seen only once, and that for a comparatively brief period five months before; and would be able to justify his identification in such a manner as would instill in a jury that high degree of confidence in his not having been mistaken that is called for by the guidance given in Reg. v. Turnbull[1977] Q.B. 224. Detective Constable Offin and his fellow police officers concerned in the inquiries...