Scott Hayes (Claimant/ Appellant) v The Chief Constable of Merseyside Police
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes,Lord Justice Richards,Lord Justice Ward |
| Judgment Date | 29 July 2011 |
| Neutral Citation | [2011] EWCA Civ 911 |
| Docket Number | Case No: B3/2011/0003 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 2011 |
[2011] EWCA Civ 911
Lord Justice Ward
Lord Justice Richards
and
Lord Justice Hughes
Case No: B3/2011/0003
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Liverpool County Court
His Honour Judge Gore QC
2011/PI/10849
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Henry Blaxland QC and Ms Sarah Hemingway (instructed by Jackson & Cantor) for the Appellant
Mr Jason Beer QC (instructed by Weightmans LLP) for the Respondent
Hearing dates: 05/07/2011
On 17 June 2008 a Mr Mooney complained to the police in Liverpool that he had been assaulted in the street 4 days earlier by Mr Hayes. He made a written statement. He said that the assault was because he had in the past bought cocaine from Hayes, and that Hayes was claiming that he owed him money. He said that Hayes had previously threatened and harassed him by text messages and telephone calls in pursuit of money, and that the demands had included threats to kidnap him. On 13 th June, according to Mooney, Hayes had confronted him in the street at about 1130 in the morning when he (Mooney) was shopping with his mother and sister. Hayes was said to have seized Mooney by the throat, rifled through a bag he was carrying, demanded money and threatened greater violence if he did not get it. Moreover, he was said afterwards to have telephoned him to repeat the threats, saying, according to Mooney, "You're lucky I'm not still living at my Mum's; I should have sent some lads round to your house ages ago."
Although the offence actually committed was treated, it appears, as the relatively minor one of common assault, this was, if true, quite a serious allegation of strong arm tactics in the street by a drug dealer against a drug user. The statement went on to say that Mooney was 'scared' by Hayes. He avoided going out, and when he did he was told by others that Hayes was looking for him. There had been family discussions about whether or not to tell the police, with one parent saying yes and the other saying no.
A few days later on 24 June, the police station which had received and logged the complaint sent an E-mail to the Birkenhead tactical team "to assist in effecting arrest". At some point the case was allocated to PC Priestley to deal with. He was at the time a probationary constable operating under the tutorship of PC Jones, an experienced officer who has subsequently assumed the role of Acting Sergeant. The constables would, of course, have had other cases and other duties also. So far as this one was concerned, Mr Priestley planned to locate Mr Hayes.
He tried to find him via his mother, with whom Hayes indeed did not, it appears, live. It seems that in due course his mother either provided a telephone number and/or warned Hayes that the police were trying to speak to him. As a result, when PC Priestley came on duty on the evening of 26 June at 2100, he was able to speak to Hayes on the telephone. The constable said he needed to see Hayes. Hayes did not make difficulty and agreed to meet the constable not far from where he was living, at Lime St railway station. There he met PC Priestley, who was with other officers, one of whom was his tutor PC Jones. The judge found that Hayes was thereupon arrested, and duly told of the accusation against him, including its date, time and place. There is (now) no challenge by Mr Hayes to those findings of the judge.
Mr Hayes was taken in a police car to St Anne's police station. He was duly received by the custody sergeant, Sgt Minnery, who recorded the time as 2233. Sgt Minnery approved the detention. When given the option, Hayes perfectly sensibly elected to be attended by the duty solicitor, who was not immediately available, and indeed did not arrive before he was released about two and a half hours later. He nominated a friend to be told of his arrest and was placed in a cell.
PC Priestley then spoke on the telephone to the complainant, Mr Mooney, to tell him of the arrest. Thus to keep a complainant informed would no doubt be good practice. Mooney told him that he did not wish to pursue the complaint. That is of course by no means unusual. There are many possible reasons for it being said, only one of which is that the original complaint is admitted to be false. Mooney did not say that was the reason. He did say that he was anxious to know (a) how long Hayes would be in custody and (b) whether he would know that it was Mooney who had complained. Thus, so far as the apparent facts known to PC Priestley went, it was a distinct possibility that the complaint was true but Mooney did not now want the exposure of pursuing it. If it were true that Hayes was or had been a drug supplier to Mooney, it would not be at all surprising that an erstwhile customer would prefer not to be known on the streets to be giving evidence for the prosecution against him. Moreover, Hayes had apparently had quite a lot of notice that the police wanted to speak to him and thus, if the original allegation and its circumstances were true, might well have had the opportunity to let Mooney know that it would not be in his interests to pursue his complaint; the evidence of the constable was that he was concerned that this might be what had happened. Decisions as to whether criminal allegations are or are not to be pursued are of course not for the private resolution of the complainant, but are for the police and/or Crown Prosecution Service.
PC Priestley resolved to go to see Mooney. Before he left, he told Sgt Minnery, at least in general terms, that the complainant was speaking of withdrawing the complaint, and that he was going to see him.
PC Priestley visited Mooney there and then, somewhere around 2330. He spoke to him for about an hour. Mooney remained clear that he did not wish to pursue the complaint and PC Priestley took from him a statement which he described as 'a retraction statement'. What it actually said was:
"I would like to retract my statement of complaint. I will not assist the police with their investigation. I will not attend court with regard to this matter."
It did not say that the original allegation was false.
When PC Priestley got back to the police station with this document, Sergeant Minnery looked at it and determined that Hayes should not be charged and should be released. That was at 0058. He was sleeping in the cell as he had been for the past two hours or thereabouts. He was accordingly awakened and released.
Thus far the facts are clear and uncontroversial.
Mr Hayes sued the Chief Constable for wrongful arrest and unlawful detention. The judge found for the defendant chief constable. Two points are taken here against that decision:
i) the original arrest was unlawful because, it is said, PC Priestley did not actively consider all possible alternatives to arrest but simply formed the view arrest was necessary; and
ii) in any event, the detention became unlawful once the custody sergeant was informed that the complainant Mooney did not wish to pursue the allegation, as he was before PC Priestley went to Mooney's home to speak to him.
The statutory power of arrest
Prior to 2005 the constable's power of arrest depended upon either the offence being an arrestable offence within section 24 Police and Criminal Evidence Act 1984 (generally one carrying punishment of five years' imprisonment or greater) or, for other offences, the general arrest conditions provided by section 25 being applicable. For an arrestable offence, the power to arrest existed (inter alia) when the constable had reasonable grounds for suspecting (i) that it had been committed and (ii) that the person in question was guilty of it: section 24(6) as it then stood. For other offences, the general arrest conditions permitted arrest, broadly, either when the suspect's name and address could not readily be ascertained or when the constable had reasonable grounds for believing arrest to be necessary to prevent the suspect causing harm or damage, or in certain other specified consequences.
In that state of the law, for an arrestable offence, the only formal condition for summary arrest was that the constable had reasonable grounds for suspecting that it had been committed and that the suspect had committed it. There was no statutory condition of belief that arrest was necessary. It was well recognised, however, that even if this double condition was met, not every case justified an arrest. The constable had a discretion which he had to exercise. If he exercised it in a manner which was Wednesbury unreasonable, the arrest would be unlawful. Thus there were three stages to the justification of an arrest. Woolf LJ set them out in Castorina v Chief Constable of Surrey [1996] LGR 241 as follows:
"(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 that the officer had the necessary suspicion, was there reasonable cause for that suspicion? This is a purely objective requirement to be determined by the judge, if necessary on facts found by the 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 (sic) in accordance with the principles laid down by Lord Greene MR in Associated Provincial Picture House v Wednesbury Corporation."
The Serious Organised Crime...
To continue reading
Request your trial
-
1. Petula Fitzpatrick 2. Bruce Wilkey and Another v The Commissioner of Police of the Metropolis
...but the effect is the same. They have been formulated with the assistance of the guidance within the recent case of Hayes v Chief Constable of Merseyside [2011] EWCA Civ 911 as supplemented by a formulation drawn from the case of O'Hara v Chief Constable of the Royal Ulster Constabulary [19......
-
Graham Mouncher and Others v The Chief Constable of South Wales Police
...wishes to secure". 436 On behalf of the Defendant Mr Johnson QC and his team rely upon the decision of the Court of Appeal Hayes v Chief Constable of Merseyside Police [2012] 1WLR 517. In that case a police constable who was investigating an assault made contact with the claimant by telepho......
-
B, N, O, Q, R, U, v (Former Soldiers) v The Chief Constable of the Police Service of Northern Ireland
...to the appropriate test to apply in this context. Reference was made to the convenient summary of the law by Hughes LJ in Hayes v Chief Constable of Merseyside Police…, where he indicated that the Court of Appeal preferred the 'two stage test' proposed by counsel for the defendant. This has......
-
ABC v Derbyshire County Council
...grounds for believing that an arrest was necessary imposed a comparatively high hurdle”. 379 In Hayes v Chief Constable of Merseyside [2011] EWCA Civ 911, [2012] 1 WLR 517 at [40], Hughes LJ, with whom Richards and Ward LJJ agreed described the s.24(4) test as having two elements, thus: “......
-
Court In Bloody Sunday Case Applies 'Necessity' Threshold For Lawful Arrest
...and effective investigation of the offence or of the conduct of the person in question". In Hayes v Chief Constable of Merseyside Police [2012] 1 WLR 517, Hughes LJ confirmed that the correct test for 'necessity' in this context is a two-stage did the officer actually believe that the arres......
-
Court in Bloody Sunday case applies “necessity” threshold for lawful arrest
...and effective investigation of the offence or of the conduct of the person in question”. In Hayes v Chief Constable of Merseyside Police [2012] 1 WLR 517, Hughes LJ confirmed that the correct test for ‘necessity’ in this context is a two-stage did the officer actually believe that the arres......
-
Making an arrest in order to activate PACE entry and search powers: The Law Commission and a missed opportunity for clarification
...18 January 2005 (afternoon) at col.250, accessed 29 April 2021.16. Thus in Hayes v Chief Constable of West Merseyside Constabulary [2012] 1 WLR 517 it was accepted by the Court of Appealthat an arrest had been necessary for the purposes of s 24(5)(e), and that an arresting officer was not u......
-
Policy, Practicalities, and PACE s. 24: The Subsuming of the Necessity Criteria in Arrest Decision Making by Frontline Police Officers
...of Arrest: Plus cËa Change: More of the Same or MajorChange?' [2007] Criminal Law Rev. 439.7Hayes v. Chief Constable of Merseyside [2012] 1 W.L.R. 517.8 E. Cape, `Arrest: Power of Summary Arrest ± Reasonable Grounds for Believingthat Necessity to Arrest Person in Question' [2012] Criminal L......