Mr Sofian Zenati v The Commissioner of Police of the Metropolis (1st Respondent) The Crown Prosecution Service (2nd Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice McCombe,Master of the Rolls |
| Judgment Date | 11 February 2015 |
| Neutral Citation | [2015] EWCA Civ 80 |
| Docket Number | Case No: B2/2014/0660 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 February 2015 |
[2015] EWCA Civ 80
Lord Dyson, MASTER OF THE ROLLS
Lord Justice Lewison
and
Lord Justice McCombe
Case No: B2/2014/0660
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
His Honour Judge Mitchell
1UC79387
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Hugh Southey QC and Mr Jude Bunting (instructed by Fisher Meredith Llp) for the Appellant
Mr Jeremy Johnson QC (instructed by Weightmans Llp) for the 1 st Respondent and
Mr Matthew Donmall (instructed by the Treasury Solicitor) for the 2 nd Respondent
Hearing date: 13 th January, 2015
Master of the Rolls:
This is an appeal from a decision of HH Judge Mitchell in the County Court (Central London) whereby he struck out the claimant's claims against the Commissioner of Police of the Metropolis ("the police") and the Director of Public Prosecutions ("the CPS") for a declaration and damages for breach of article 5 of the European Convention on Human Rights ("the Convention") and the tort of false imprisonment. The claims were struck out under CPR 3.4(2)(a) on the grounds that the Particulars of Claim disclosed no reasonable grounds for bringing them.
Summary of the facts
The following summary is largely derived from the Particulars of Claim which, for the purposes of the strike out application, must be assumed to be true. I have also drawn (to a small and, I believe, an uncontroversial extent) on the evidence of Kevin Hansford whose witness statement has been made on behalf of the CPS.
The claimant is a national of the UK (and Libya). He has a British passport and a Libyan passport. On 7 December 2010, he was arrested in relation to a racially aggravated public order offence. Following his arrest, he produced his British passport. DC Azam (who had been trained in forgery detection) considered that certain anomalies in the passport indicated that it was counterfeit. The claimant was charged with offences under the Identity Cards Act 2006 and was remanded in custody by the Camberwell Green Magistrates' Court on 10 December.
On the same day, the CPS completed a "file build request form". This requested the officer in the case to arrange for a more comprehensive examination of the passport (a stage two examination) by 24 December. The request was not forwarded to the officer in the case, PC Smith, until 31 December. PC Smith contacted the National Document Fraud Unit ("the NDFU") which is part of the UK Border Agency, but the passport was not delivered to the NDFU until 13 January 2011. The case was transferred to the Inner London Crown Court on 7 January. On 19 January, PC Smith was told by the NFDU that the passport was genuine.
At a plea and management hearing which was held on 4 February (which was a Friday), the claimant pleaded not guilty to the passport offence. The CPS told HHJ Lees that they needed to obtain a statement from immigration authorities to confirm that the passport was a forgery and that it would take 28 days to obtain the necessary information. The judge allowed 14 days. No mention was made of the information that had been obtained from the NDFU. As HHJ Mitchell put it at para 3 of his judgment, "it is quite clear that the people in court, including the judge, were under the impression that the more comprehensive examination of the passport had not taken place". The CPS said that it would agree to the granting of bail provided that the claimant gave details of a residential address which was acceptable to PC Smith. The claimant was unable to do this. The judge pointed out that the claimant's solicitors had not put the CPS on notice of his intention to seek bail.
At 16.38 on the same day, an email was sent by PC Smith to Laura Dobie who was a CPS paralegal. The email stated that the examination had been completed "some time ago" by the NDFU and that the NDFU stated that the document was genuine. At 9.20 on Monday 7 February, Ms Dobie forwarded the email to Jane Puckey who was the caseworker allocated to the case. At 13.58 on the same day, Ms Puckey forwarded the email to the David White who was the allocated prosecutor. He then reviewed the case. At 14.26, he asked PC Smith to obtain a witness statement from NDFU confirming the results of the stage 2 review and addressing the irregularities in the passport that had been identified earlier.
A bail hearing had been fixed for 9 February. This had been requested by the claimant's solicitors following the hearing of 4 February. The true facts were now revealed and the claimant was granted bail.
The claims
The claimant advances two claims in these proceedings. The first is that, in breach of section 6 of the Human Rights Act 1998 ("the HRA"), the defendants acted in a way which was incompatible with the claimant's rights under article 5 of the Convention. In particular, he alleges that (i) his detention from 19 January 2011 until his release on 9 February was in breach of article 5(1)(c) and (ii) that his detention from 10 December 2010 until 9 February 2011 was unreasonably long and in breach of article 5(3) in that the defendants failed during this period to act with "special diligence" in investigating the alleged offence. Secondly, he alleges that the defendants are liable in the tort of false imprisonment for his detention from (or shortly after) 19 January until 9 February 2011.
THE ARTICLE 5 CLAIMS
So far as material, article 5 of the ECHR provides:
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
……
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
…….
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."
The Article 5(1)(c) claim
The submissions of Mr Southey QC are as follows. The purpose of article 5(1) is to ensure that no one is deprived of his liberty arbitrarily. To avoid arbitrariness, "the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5(1)": see James v United Kingdom (2013) 56 EHRR 12 at para 193. Once it is known that the grounds of detention under article 5(1) no longer exist, it is incumbent on the state to release the detained person as soon as possible. The need to release a person where the justification for detention no longer exists has been expressly recognised in the Strasbourg jurisprudence, primarily in the context of the case law on article 5(3) regarding detention pending trial: see, for example, Tomasi v France (1993) 15 EHRR 1 at para 84: "[the] persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention". On the facts of the present case, after 19 January 2011 there were no longer any grounds for continuing to have a reasonable suspicion that the claimant had committed the passport offence. Accordingly, his continued detention thereafter was in breach of article 5(1)(c).
The response of Mr Johnson QC and Mr Donmall can be summarised as follows. When read with article 5(3), article 5(1)(c) requires no more than that there is and continues to be a reasonable suspicion of the commission of the offence at the time of the remand in custody and at each subsequent occasion when the question of the detention is reviewed by the court. They accept that, if a reasonable suspicion of the commission of the offence is absent on any such occasion, then continued detention thereafter is in breach of article 5(1)(c). But they submit that the fact that reasonable suspicion of the commission of the offence ceases on a date between such occasions does not render the continuing detention, pending a review by the court, a breach of article 5(1)(c).
In my view, it is clear that article 5(1)(c) and 5(3) must be read together. Article 5(1)(c) provides that detention is lawful if it is effected for the purpose of bringing a person before "the competent legal authority on reasonable suspicion of having committed an offence". Article 5(3) provides that any person detained for that purpose must be promptly brought before "a judge or other officer authorised by law to exercise judicial power" and is entitled to trial within a reasonable time or release pending trial. The term "competent legal authority" has the same meaning as the term "judge or other officer authorised by law to exercise judicial power": see Schiesser v Switzerland (1979) 2 EHRR 417 at para 29. I shall...
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