Raissi v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MCCOMBE,The Honourable Mr. Justice McCombe |
| Judgment Date | 30 November 2007 |
| Neutral Citation | [2007] EWHC 3421 (QB),[2007] EWHC 2842 (QB) |
| Docket Number | Case No: HQ04X01940,Case No: HQ05X01939 |
| Court | Queen's Bench Division |
| Date | 30 November 2007 |
[2007] EWHC 2842 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION
The Honourable Mr. Justice Mccombe
Case No: HQ04X01940
Mr Tim Owen QC & Mr Leslie Thomas (instructed by Tuckers Solicitors) for the Claimant
Mr Michael Beloff QC & Mr John Beggs (instructed by Metropolitan Police Solicitors) for the Defendant
Hearing dates: 12 – 19 November 2007
Judgment Approved by the court
for handing down
(A)Introduction
In this action the Claimants, Mrs. Sonia Raissi (“Mrs. Sonia”) and Mr. Mohamed Raissi (“Mr. Mohamed”), claim damages for wrongful arrest and false imprisonment against the Defendant, the Commissioner of Police of the Metropolis (“the Commissioner”). The claim arises out of the Claimants' respective arrests on 21 September 2001 by officers of the Metropolitan Police Force in purported exercise of powers of arrest under section 41(1) of the Terrorism Act 2000. They were arrested and detained on suspicion of involvement in the terrorist attacks in the United States on 11 September 2001. The Claimants are, respectively, the wife and brother of one Lotfi Raissi (“Lotfi”) who was also suspected of involvement in those attacks. No charges were ever brought against either Claimant and each was released after interview and a period of detention. Mr. Mohamed was detained for some 41 hours and Mrs. Sonia for 4 1/2 days.
Section 41 of 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 Act defines a terrorist as including a person who
“is or has been concerned in the commission, preparation or instigation of acts of terrorism”
“…[E]very imprisonment is prima facie unlawful and it is for a person directing an imprisonment to justify his act”, per Lord Atkin in Liversedge v Anderson [1942] AC 206, 245.
Three questions have to be answered. These are posed in the judgment of Woolf LJ (as he then was) in Castorina v Chief Constable of Surrey 10 June 1988, unreported, at pp. 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 M.R. in Associated Provincial Picture Houses Ltd. V Wednesbury Corporation (1948) 1 K.B. 223.”
In this case, only question 2 is in issue. It is 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” (s. 40(1) of the 2000 Act). Nor is it suggested that if the officers had reasonable grounds for their suspicions that either of them was irrational in exercising the power of arrest. The only issue in each case is as to the reasonableness or otherwise of the grounds on which each of the officers acted, i.e. question 2 posed by Woolf LJ.
In addition, however, Mr. Beloff relies upon a separate point as justifying each arrest, even if he were to fail to make out reasonable grounds for the officers' suspecting the Claimants to be “terrorists” (within the meaning of the Act). That is a defence of “necessity”, a necessity arising out of the extreme seriousness of the attacks in America and the public safety concerns arising out of them. Mr. Owen QC (with whom Mr. Thomas appeared) for the Claimants said, in a rhetorical flourish intended to demonstrate what he submitted was the objectionable nature of any such defence, that this point was “worthy of Mugabe”.
It is common ground that it is the state of mind of the arresting officer at the time of the arrest that has to be examined and then it has to be asked whether, in that state of mind, he or she had reasonable grounds for making the arrest. Accordingly, the evidence in this case has been within a very narrow compass. I have read the statements of the two Claimants as to what they say occurred before, at the time of and after the arrests. I did so, noting the submission of Mr. Beloff QC for the Commissioner (with whom Mr. Beggs appeared) that, for the purposes of any determination of quantum of damages hereafter, some of the facts stated will be in dispute. Further, as it is the state of mind of the arresting officers that is in issue, the Claimants' statements are of marginal (if any) relevance. I have also heard the oral evidence of the two arresting officers, DC David Bredo (as he then was, now DS Bredo), in the case of Mr. Mohamed, and DC Samantha Miller, in the case of Mrs. Sonia.
I delivered an earlier interlocutory judgment, following argument at the opening of the trial, on a preliminary question relating to the extent to which the Commissioner was permitted to adduce evidence that might, on an agreed hypothesis, derive from a source excluded by the provisions of Section 17 of the Regulation of Investigatory Powers Act 2000 (“ RIPA”). The evidence in issue was contained in statements from two senior Metropolitan Police officers who were not involved in the arrests. For details of the issues raised, I would refer to that judgment. However, in summary, I decided that the evidence in issue was, on the agreed hypothesis, caught by the exclusion in Section 17 of RIPA, but that in any event the evidence was unlikely to be of relevance because it did not go directly to the state of mind of Mr. Bredo and Miss Miller respectively at the time of the arrests: see O'Hara v Chief Constable of the RUC [1997] AC 286. Thereafter, Mr. Beloff confined his oral evidence to that of Mr. Bredo and Miss Miller alone. He did not raise any further argument, which I had left open to him, on the relevance of the remaining evidence of the two senior officers.
In his argument on the preliminary point Mr. Beloff submitted that this may be a case in which ultimately the court might have to have resort to sight of the excluded material (under the exception to Section 17 of RIPA to be found in section 18(7) and (8) of that Act) to avoid a substantial miscarriage of justice. However, in his final submissions, Mr. Beloff stated that, in the light of the evidence, the Commissioner did not himself seek to trigger section 18(7) of RIPA, although recognising that the matter remained one for the court. As will be seen, I do not consider that it is necessary to have recourse to that provision in this case.
(B) Facts
As is notorious, on 11 September 2001 terrorists in the United States of America murdered a very large number of people by flying hijacked passenger aircraft into public buildings in New York and Washington.
On 17 and 19 September 2001 the Anti-Terrorist branch of the Metropolitan Police Force (SO13) received from the Federal Bureau of Investigation (“FBI”) in the United States letters of request for information. The letters advised that Lotfi might have been involved in or have had prior knowledge of the attacks. The information imparted by the letters is summarised uncontroversially in the amended defences served in the action. I quote from paragraph 9 of the amended defence to Mrs. Sonia's claim:
“The detail of the two FBI letters was as follows:
(i) Hani Hanjour was probably the hijacker who piloted American Airlines Flight 77 in to the Pentagon;
(ii) Another of the hijackers on Flight 77 was Nawaf Al-Hazmi;
(iii) An Arizona Driver licence issued to Lofti on 22 nd January 1997 provides an address of 20003 North 23 rd Avenue Apartment 306, Phoenix, Arizona 85027;
(iv) Lofti possessed a United States Department of Transportation FAA commercial pilot licence issued 8 th October 1997. Pilot data disclosed he had 400 flying hours.
(v) A personal data form completed by Lofti on 18 th March 1998 listed his address as 20003 North 23 rd Avenue Apartment 392, Phoenix, with telephone number 602–580–9816.
(vi) An Airman Certificate and / or Rating Application signed by Lofti on 7 th December 1998 identified him as a male citizen of Algeria born on 4 th April 1974, of address 20003 North 23 rd Avenue Apartment 302, Phoenix, Arizona 85027.
(vii) A letter dated 9 th April 1998 for the Director of Student Services of Westwind Aviation Academy to the United States Immigration Office disclosed that Lofti abandoned a Westwind Aviation Academy program to enrol with a program at Jet Tech International, owing $2,572 when he departed.
(viii) On 2 nd March 1998 the sum of $4,950 was wired to a Wells Fargo Bank account in the name of Lofti and Sonia Demolis from a Bank of New York account: the Bank Account address of Lofti and Sonia was 20003 North 23 rd Avenue Apartment 302, Phoenix, Arizona 85027.
(ix) On 27 th May 1998 the further sum of $8,003.02 was credited to the same Wells Fargo account, this time from Hazam Doudja of the Bank of New York.
(x) On 3rd December 1998 Lofti enrolled in the Federal Aviation Administration approved Boeing 737–200 Type Rating Course at Jet Tech International, Phoenix, Arizona, at a cost of $8,995 in class 98–3-121.
(xi) On 25 th January 1999 Lofti completed Jet Tech International Boeing 737 Type Rating course.
(xii) Whilst he resided in Arizona, Lofti had a vehicle, which he registered in the of Maan Al Quraishi.
(xiii) Either in February or September 1999 Lofti purchased 757/767 manuals for $250.
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