Raissi v Commissioner of Police of the Metropolis

Hearing dates : 6th October 2008

Sir Anthony Clarke MR:

This is the judgment of the court.

Introduction

There were initially two claimants in this action, namely Sonia Raissi ('Sonia') and Mohamed Raissi ('Mohamed'), who are respectively the brother and wife of Lotfi Raissi ('Lotfi'). They claimed damages for wrongful arrest and false imprisonment against the Commissioner of Police of the Metropolis, who is the appellant in this appeal. They were both arrested and detained by different police officers on 21 September 2001 on suspicion of involvement in the terrorist attacks in the United States on 9/11, which was of course only 10 days earlier. Each was interviewed and released without charge. Sonia was detained for some 41 hours, whereas Mohamed was detained for 4 ¹/₂ days. Sonia's claim failed but Mohammed's claim succeeded. Sonia does not appeal against the order dismissing her claim, which was made by McCombe J ('the judge') on 30 November 2007. In her case the judge held that the officer had reasonable grounds to suspect that Sonia was a terrorist. By contrast, the Commissioner does appeal against the part of the same order giving judgment for Mohammed with damages to be assessed. The reason why his claim succeeded was that the judge held that Detective Constable Bredo (now Detective Sergeant Bredo) did not reasonably suspect that Mohammed was a terrorist. The judge gave permission to appeal in terms to which we refer below. Mr Beloff QC submits on behalf of the Commissioner that the judge was wrong so to hold.

The Terrorism Act 2000

Section 41 of the Terrorism Act 2000 ('the 2000 Act') provides:

“A constable may arrest without a warrant a person whom he reasonably suspects to be a terrorist.”

Section 40 of the 2000 Act defines a terrorist as including a person who

“is or has been concerned in the commission, preparation or instigation of acts of terrorism.”

The legal principles

The judge correctly set out the underlying principles at [3] and [4] of his judgment dated 30 November 2007. They may be summarised in this way. The starting point is the classic statement of Lord Atkin in Liversidge v. Anderson [1942] AC 206 at 245 that:

“in English law every imprisonment is prima facie unlawful and it is for a person directing an imprisonment to justify his act.”

The judge correctly observed at [4] that three questions have to be answered. They are those posed by Woolf LJ in Castorina v Chief Constable of Surrey, unreported, 10 June 1988, where he said at pages 20 – 21 of the transcript:

“1. Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.

2. Assuming the officer had the necessary suspicion, was there reasonable cause for suspicion? This is a purely objective requirement to be determined by the judge if necessary on the facts found by a jury.

3. If the answer to the two previous questions is in the affirmative, then the officer has a discretion which entitles him to make an arrest and in relation to that discretion has been exercised in accordance with the principles laid down by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.”

Of those three questions, both before the judge and before us only question 2 was and is in issue. As the judge said, it was not suggested that the arresting officers did not subjectively suspect that the Claimants were “concerned in the commission, preparation or instigation of acts of terrorism”. Question 1 therefore had (and has) to be answered in the affirmative. As to question 3, it was not suggested that, if the officers had reasonable grounds for their suspicions, either of them acted irrationally in exercising the power of arrest. Question 3 therefore also had (and has) to be answered in the affirmative. Question 2 remains, but only in so far as it relates to DC Bredo. It is whether he had reasonable grounds for suspicion.

Before the judge it was submitted on behalf of the Commissioner that, even if the officers did not have reasonable grounds for their suspicion, he nevertheless had a defence of necessity arising out of the extreme seriousness of the attacks in America on 9/11 and of the public safety concerns arising out of them. The judge rejected this part of the Commissioner's argument on the basis that neither claimant was informed that he or she was being arrested on any ground other than suspicion of terrorism as defined in the 2000 Act. The Commissioner does not pursue this point in this appeal.

There is a dispute between the parties as to the basis on which the judge gave permission to appeal. At the end of the oral argument relating to permission to appeal, Mr Beloff asked the judge for a record of the formulation of the relevant point. The judge said that he “allowed permission to appeal on one ground only, see below”. He then quoted what we understand to be his own written formulation of that ground as follows:

“I think there are good reasons for considering the 'nuance of difference in approach between Lords Steyn and Hope in O'Hara in paragraph 32 of my judgment. I do not say there are real prospects of success but it is an important point and I think would be worthy of the Court of Appeal's consideration. I refuse permission to argue the necessity point where I find no real prospects of success, nor a compelling reason for an appeal.”

We will consider first the relevant legal principles raised by the ground of appeal for which the judge undoubtedly gave permission. It arises out of a suggested difference of opinion between Lord Steyn and Lord Hope in O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286.

We detect no such difference of opinion between them. It would certainly be surprising if there were held to be any such difference given that Lord Mustill and Lord Hoffmann expressly agreed with the speeches of both Lord Steyn and Lord Hope and Lord Goff said that he would dismiss the appeal for the reasons given by them both.

The appeal in that case arose out of an arrest under section 12(1) of the Prevention of Terrorism (Temporary Provisions) Act 1984 ('the 1984 Act'), which provided, so far as material, as follows:

“ a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be … (b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of the Act applies; …”

It can immediately be seen that section 12 is in all material respects in the same form as sections 40 and 41 of the 2000 Act with which we are concerned. In that case a constable made the arrest in connection with a murder which was an act of terrorism within the meaning of section 12(1) of the Act. As here, it was common ground that subjectively the constable had the necessary suspicion and the question was whether the constable objectively had reasonable grounds for suspecting that the plaintiff was concerned in the murder. The constable said in evidence that his reasonable grounds for suspecting the plaintiff were based on a briefing by a superior officer. He was told that the plaintiff had been involved in the murder. The constable said that the superior officer ordered him to arrest the plaintiff. He did so. As Lord Steyn observed at page 290A, counsel for the plaintiff took the tactical decision not to cross-examine the constable about the details of the briefing. The trial judge described the evidence as scanty but he inferred that the briefing afforded reasonable grounds for the necessary suspicion. In other words the judge inferred that some further details must have been given in the briefing. The legal burden was on the Chief Constable to prove the existence of reasonable grounds for suspicion. Lord Steyn said that he was nevertheless persuaded that the judge was entitled on the sparse materials before him to infer the existence of reasonable grounds for suspicion. It followed that the Court of Appeal was entitled to dismiss the appeal and that the appeal to the House of Lords failed on what Lord Steyn called narrow and purely factual grounds.

The House nevertheless considered the issue of general public importance in respect of which leave to appeal had been given. Lord Steyn identified it as being whether an order by a superior officer to the arresting officer was itself sufficient to afford the constable a reasonable suspicion within the meaning of section 12(1). The House unanimously held that it was not. In support of the proposition that it was, the Chief Constable relied upon the decision of the House in McKee v Chief Constable for Northern Ireland [1984] 1 WLR 1358. However, the statutory provision being considered there was section 11(1) of the Northern Ireland (Emergency Provisions) Act 1978, which provided:

“Any constable may arrest without warrant any person whom he suspects...