Paul Charles Andrews v The Chief Constable of Suffolk Constabulary
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Ellenbogen,Mrs Justice Ellenbogen DBE |
| Judgment Date | 12 December 2022 |
| Neutral Citation | [2022] EWHC 3162 (KB) |
| Docket Number | Case No: QA-2021-000052 |
| Court | King's Bench Division |
[2022] EWHC 3162 (KB)
Mrs Justice Ellenbogen
Case No: QA-2021-000052
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Una Morris and Michael Etienne (instructed by Hatch Brenner LLP) for the Appellant
Adam Clemens (instructed by Weightmans LLP) for the Respondent
Hearing dates: 19 November 2021
Approved Judgment
Introduction
With the permission of Steyn J, the Appellant appeals from the judgment of the County Court at Norwich (HHJ Pugh — ‘the Judgment’), by which his claims for false imprisonment; contravention of the Human Rights Act 1998 (‘the HRA’) and of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’); assault and battery; and trespass to premises (his vehicle) were dismissed. The last two of those claims flowed from the Appellant's allegedly unlawful detention and it was not disputed by the Respondent that, in the event that detention was held to be unlawful, each such claim would be established.
The proceedings had arisen from an incident on 10 June 2017 which had occurred in a Morrisons supermarket car park, in Lowestoft, following which the Appellant had been arrested, on 15 June 2017, for attempted child abduction. Thereafter, the Appellant had been detained until 16 August 2017, initially in police custody and then on remand at HMP Norwich, by order of Norwich Magistrates’ Court. The criminal proceedings against the Appellant concluded on that day, when the Crown Prosecution Service (‘the CPS’) offered no evidence, at a hearing before Ipswich Crown Court.
As recorded at paragraphs 2, 3, 5 and 6 of the transcript of the Judgment:
‘2. What happened on the 10th June 2017 is broadly agreed, although there are some minor areas of divergence. At around 8pm Mr Andrews went to Morrisons, entered the store and made some purchases. He had driven there in his car which had his three dogs in it. As he left the store he spoke to the father of two young girls who were standing between that exit and where the car was parked close by. There was a brief discussion between them about the dogs. Mr Andrews went to the car. Shortly after he did so, the mother of the two young girls came out of the store and the father, with one of the girls, entered the store, leaving the second girl, aged 9, outside the store with the mother. Mr Andrews drove the car around the car park and then stopped the car directly in front of the remaining young girl. There was loud music emanating from the vehicle. He called loudly to the young girl “I've got my music loud and clear just for you.” He got out of the car and began to dance and shimmer 1 towards the young girl with his arms wide open asking her if she wanted to dance. The young girl smiled and began to move towards Mr Andrews. As she did so her mother walked over to the girl and put her arm around her daughter and said “No she's fine, thank you”. It is suggested by the mother that as she put her arm around her daughter Mr Andrews repeated his invitation to the young girl to dance. However this is denied by Mr Andrews. After the mother had told Mr Andrews that her daughter was fine Mr Andrews then said “I'm just trying to have a bit of fun”. The mother says that this was said angrily. Mr Andrews accepts he said those words but denies that he did so in an angry manner. Mr Andrews then drove off.
3. The incident was reported to the police, who attended the scene. On the 15th June 2017 PC Pullen and PC Robinson saw Mr Andrews in his car and PC Pullen arrested him on suspicion of attempted child abduction.
…
5. The basis of his claim is that the arresting officer, PC Pullen, did not have reasonable grounds for suspecting that the claimant had attempted to abduct a child and that accordingly his detention was
unlawful as it was contrary to sections 24 and 28 of the Police and Criminal Evidence Act 1984 (PACE) and in breach of Article 5. If the arrest was unlawful then he asserts that any physical touching was an unlawful assault and that a search of his vehicle pursuant to section 18 of PACE would be unjustified. He also asserts that all decisions or reviews by police officers relating to his continued detention were unlawful.6. The defendant accepts that the onus of proving that the arrest was lawful and that there has been no breach of Article 5 rests on him.’
At paragraphs 7 to 12 of the Judgment, HHJ Pugh stated:
7. PC Pullen's evidence is that on the morning of the 15th June 2017 he had been part of a verbal briefing which included DS Beales informing the team of the incident at Morrisons on the 10th June 2017 and that the claimant was involved in that incident. PC Pullen stated that he had access to the investigation log, that he noted that Mr Andrews had been seen to dance towards a young girl with his arms open. He said that he formed the view from the information that he had been told and read that Mr Andrews appeared to be attempting to coerce a young girl away from her mother. He considered that the conduct was more than merely preparatory. He also confirmed that he had been informed at the briefing of Mr Andrews' previous convictions which included an offence involving a young child being locked in a cupboard.
8. The investigation log, otherwise known as the Athena log, gives details of the incident as set out at paragraph 2 of this judgment. It included the reported opinion of a woman standing a few feet away who spoke to the girl and the mother after the incident stating that “the man was going to take [the girl] away”. PC Pullen also stated in oral evidence that he had taken into account that the girl, who had appeared to be with her father, had then looked as if she was on her own and that the claimant had returned to speak to her when she looked unattended, pulling up in front of the store next to the girl, rather than in a parking bay.
9. In cross-examination it was put to PC Pullen that there had been no such briefing i.e. that PC Pullen was lying when he said there had been one. Ms Morris justified putting such an allegation on the basis that there was no contemporaneous record of any such briefing and that he had not mentioned the briefing in his pocket notebook, nor when preparing his MG11 statement for the purposes of a criminal prosecution and nor had any other officers who were present at the briefing been called to give evidence. PC Pullen's response, that there was no such record because it was a verbal briefing and that it would not be usual to mention morning briefings in MG11 statements is one that I accept. He was also taken to entries within the investigation log from an Inspector Hinitt which stated that the offence was not made out as it did not cross the merely preparatory threshold. In answer PC Pullen said that he had not noted that comment but that by the time he was involved the officer in charge was DS Beales who did not express any similar reservation concerning whether the offence had been committed.
10. PC Pullen said that based on the information he had been given and read that he suspected that an offence of attempted child abduction had been committed. Whilst this was challenged, I accept PC Pullen's evidence on this.
11. PC Pullen's evidence regarding the arrest is similar to the account given by Mr Andrews. That Mr Andrews was parked in his car on the phone. That he permitted Mr Andrews to finish his call and then arrested him, informing him what he was being arrested for and explaining the allegation to him including the date, time and location of the incident and the nature of the allegation. There is a dispute as to whether PC Pullen cautioned Mr Andrews (although it is not asserted that even if there had been no caution, this would, by itself, mean that the arrest was unlawful). I accept PC Pullen's evidence that he did caution Mr Andrews and that Mr Andrews then replied “No, that's not right”.
12. PC Pullen said that he considered it was necessary to arrest Mr Andrews to allow for the prompt and effective investigation and to protect vulnerable children. PC Pullen explained that he was concerned that Mr Andrews may commit further child abductions and he also considered that a search of Mr Andrews' vehicle was necessary. There is a dispute as to whether PC Pullen told Mr Andrews of the need for the arrest. I accept that he did so, but it is not, in any event, submitted that a failure to do so would make the arrest unlawful.’
The judge held the Appellant's arrest by PC Pullen to have been lawful, in accordance with section 24 of the Police and Criminal Evidence Act 1984 (‘PACE’), set out (so far as material) below:
‘ Arrest without warrant: constables
(1) …
(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.
(3) …
(4) But the power of summary arrest conferred by subsection (1), ( 2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.
(5) The reasons are—
…
(d) to protect a child or other vulnerable person from the person in question;
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
…
(6) …’
The judge set out his reasons for that conclusion at paragraphs 18 to 36 of the Judgment:
‘18. The first question is whether PC Pullen suspected that an offence of attempted child abduction had been committed. This is a subjective test.
19. The offence of child abduction involves the taking or...
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