Mr Jonathan Alger v The Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cotter |
| Judgment Date | 28 June 2023 |
| Neutral Citation | [2023] EWHC 1582 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: KA-2022-000205 |
[2023] EWHC 1582 (KB)
Mr Justice Cotter
Case No: KA-2022-000205
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Appeal from His Honour Judge Simpkiss
County Court at Brighton Case: F52YX490
Royal Courts of Justice
Strand, London, WC2A 2LL
Sam Jacobs (instructed by Hudgells Solicitors) for the Appellant
Stephen Morley (instructed by Plexus Law) for the Respondent
Hearing dates: 26 May 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 28 June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is an appeal from the order of HHJ Simpkiss sitting at the County Court at Brighton dismissing the Appellant's claim for false imprisonment.
The claim arises out of the arrest of the Appellant on 16 th May 2016. The circumstances of the arrest related to a dispute between the Appellant, a window cleaner, and one of his customers.
This appeal focuses on the single issue of whether the arresting officer, PC Lockyer, had objectively reasonable grounds to believe that arrest was necessary for one of the reasons specified in section 24(5) of the Police and Criminal Evidence Act 1984 (“PACE”). It is common ground that absent such objectively reasonable grounds, the arrest was unlawful and the ensuing detention is a false imprisonment.
Factual background
The Appellant owned and operated a window cleaning company trading as ‘Squeaky Clean’, as he had done for a period of approximately 12 years.
On 16 th May 2016 the police were contacted by a Mrs Napier. PC Gear and PC Lock (not PC Lockyer) attended Mrs Napier's address to speak to her about what had happened.
Mrs Napier alleged that for a period of two years she had had “issues” with ‘Squeaky Clean.’ She alleged that in November 2015 the Appellant had demanded money and was aggressive. She then referred to two specific incidents.
The first incident was on 1 st March 2016. Mrs Napier alleged that the Appellant had demanded money and been aggressive. She alleged that when she had tried to close the front door the Appellant kicked the door open and threatened to fight her husband outside of the house. It was not in issue before the trial Judge that if what Mrs Napier alleged happened on 1 st March 2016 was proved that an offence may have been committed under section 4 of the Public Order Act 1986.
The second incident occurred earlier that day; 16 th May 2016. At around 14:15hrs on 16 th May 2016 a window cleaner from ‘Squeaky Clean’ had delivered a slip requesting payment of £97.50. Mrs Napier had sent a text message to the Appellant stating she did not owe any money and ‘Squeaky Clean’ should not attend the address again. Mrs Napier received a telephone call from the Appellant. She alleged that the Appellant had said during the call (so not in a text message)
“You are going to pay me, you will pay either way. I'll come round now, I'll smash the door in, I'll then smash your face in and then I'll come back later and do over your husband…You are a fucking lying bitch you told me in November you lost your job. You are a fucking lying cunt.”
She further alleged that the Appellant continued to swear before putting the phone down. Mrs Napier said that the Appellant had then made five further phone calls which she did not answer, and had left a voicemail and a text message. I pause to observe that Mr Jacobs submitted that these allegations could have been provable by checking Mrs Napier's phone. However, as the Judge pointed out, Mrs Napier did not say that the Appellant had been aggressive or offensive in the text or voicemail messages. Her allegation concerned a telephone call that was neither recorded or witnessed and as the trial judge was to hold;
“An investigation of the text messages and voicemails would not have shed any light on her allegations.”
It was not in issue before the trial Judge that had the Appellant acted on 16 th May as Mrs Napier alleged that he might have been committing offences under section 1 of the Malicious Communications Act and section 127 of the Communications Act.
The text message and voicemail message were calm, professional and courteous;
a) At 14:32hrs Mrs Napier sent the Appellant a text message which read:
“I received a slip through my door 5 minutes ago regarding payment. I do not owe any money to your company. Please do not come back to my property. 38 Dryden Road.”
b) At 14:49hrs the Appellant sent Mrs Napier a text message in reply which read:
“The outstanding balance you owe is £72.50 which needs to be paid. You can continue to pay in instalments as you have been, but I will need £25 to be paid in May and June and then the remaining £22.50 in July. Failing to do so will result in legal action commencing. I feel that I am being more than fair as this money has been owed for over 8 months.”
c) In the voicemail message, subsequently played to the police, the Appellant's voice was calm and conveyed similar information to that expressed in his text message.
PC Gear set out Mrs Napier's account of events on the MPS CRIS crime reporting system later that evening. That document set out that
i) The problems between Mrs Napier had been ongoing for two years;
ii) That there was a “previous incident reported to the Police” (but with no details given);
iii) In November 2015 the Appellant visited Mrs Napier at home, demanded money and became aggressive;
iv) In March 2016 the Appellant visited Mrs Napier at home and demanded money. When Mrs Napier tried to close the door the Appellant kicked it open and then threatened to fight her husband, only leaving when Mrs Napier said she was calling the police;
v) On 16th May 2016 the Appellant telephoned Mrs Napier and threatened her that if she didn't pay him he would smash her door down and assault her and her husband;
vi) The Appellant telephoned five more times, but Mrs Napier did not answer;
vii) The Appellant lived close to Mrs Napier, less than a mile away;
viii) That details of the Appellant were on the “suspect page” (which was not supplied to me) and that his address was on the PNC (no further details given);
ix) Due to the ‘overall gravity’ of the situation PC Gear had spoken to the control room to ensure any calls to the premises were treated as an emergency;
The CRIS records that Police Sergeant Simpson had assessed the risk posed to Mrs Napier and noted that arrest arrangements had been made and CID informed.
I pause to observe that the CRIS gave no details as to what had happened when there had been a previous complaint to Police (see ii above). As I indicated to Mr Morley during submissions ordinarily a complaint would be followed up and the detail of what occurred may be highly relevant to any subsequent decisions. However no detail was given 1.
The Defendant's officers then attended the Appellant's home to effect an arrest, but the Appellant was not present.
The Appellant learnt of the police attendance at his address and suspected that their attendance was connected with Mrs Napier. Wishing to cooperate and assist with police enquiries, he voluntarily attended Bexleyheath police station that evening. As the Judge stated:
“he decided that he would go to Bexleyheath police station to find out why they wanted to speak to him. In his witness statement he says:
While I couldn't be sure I had an idea it may relate to Mrs Napier so I took with me both my personal and my company mobile phone.”
On his arrival at Bexleyheath Police Station the Appellant told reception who he was and waited as he was requested to do.
PC Lockyer stated that at about 22.45 whilst on duty at Bexleyheath Police station together with PC Clark
“we were tasked with an arrest enquiry at Bexleyheath Police Station front office.”
During his evidence he was to explain that
“Yes, so I was on night duty and my response sergeant would've called me in because I was available and said “can you arrest someone in the front office' who's handed himself in.”
Q; And the request was to arrest someone
A; Yes”
Although he later added
“Every time we arrest someone it's our own decision, we can't be forced to arrest someone.”
About 5 minutes after the Appellant was told to wait PC Lockyer appeared and immediately told him that he was being arrested for “malicious communications”.
The arrest occurred at 22.56; so 11 minutes after PC Lockyer was “tasked” with the arrest enquiry.
In his statement the Appellant stated:
“On arrival at the station I introduced myself at the reception and was asked to wait. I was then met with a police officer who I know now to be a PC Lockyer. I was astounded when I was told I was to be arrested for “ malicious communications”. I remember that while going through the booking in process the Custody Sargent made a comment to PC Lockyer, “ you are on thin ice with this one” or words to that effect. While I didn't know exactly what he meant by that, I assume it related to the decision to arrest me, particularly as I was there at the police station offering to help however I could. Nobody wanted all this resolving as much as I did. To be arrested, was frankly shocking.”
The Judge found that PC Lockyer had the information in the CAD and the CRIS report, which:
“had not taken him very long to read…and form a view about arresting” (the Appellant).
Importantly in my view there was no further interaction between the officer and the Appellant before the arrest. Mr Morley submitted that although the Appellant had voluntarily attended (with both of his phones) he may not have been happy to remain if there was (as there as likely to be) a delay before any voluntary interview....
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