Thomas v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | THE VICE-CHANCELLOR,LORD JUSTICE EVANS,LORD JUSTICE SAVILLE |
| Judgment Date | 28 November 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J1128-10 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBENF 95/0510/C |
| Date | 28 November 1996 |
[1996] EWCA Civ J1128-10
The Vice-Chancellor
(Sir Richard Scott)
Lord Justice Evans
Lord Justice Saville
QBENF 95/0510/C
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE M. DAVIES)
Royal Courts of Justice
Strand
London WC2
LORD GIFFORD QC & PAUL J. KISHORE (Instructed by Messrs Harris & Co, London, SE1 6HE) appeared on behalf of the Appellant
MR J. LOADES & PHILIP JONES (Instructed by C. S. Porteus, New Scotland Yard, Broadway, London, SW1H OBG) appeared on behalf of the Respondent
This appeal raises two issues. One is a point of general interest concerning the Rehabilitation of Offenders Act 1974. The other is a point regarding quantum of damages.
The appellant, Mr Thomas, was plaintiff in the court below. The respondent, defendant below, is the Commissioner of Police of the Metropolis.
The litigation arises out of an incident that took place at about 2.00am on 28 May 1990. The plaintiff, a limbo dancer of considerable reputation, had been giving a charity performance at a Telethon arranged by London Weekend Television at the London Arena in the Docklands. After the performance, Mr Thomas left the London Arena via the Stage Door entrance.
A security guard was on duty at the door. It appears to be common ground that immediately before Mr Thomas left the premises, an altercation of sorts had taken place between him and the security guard. Nothing turns on the content of the altercation, but in the street outside the Stage Door when Mr Thomas emerged were two Police Officers. They arrested Mr Thomas. They say that he was swearing, making a lot of noise and, in short, making a nuisance of himself. They say that he pushed one of the officers in the chest and told him to "fuck off". They therefore arrested him for threatening behaviour. Mr Thomas has throughout denied this version of the incident. He says that, on leaving the London Arena, he was forcefully confronted by the two Officers and made the object of abusive and racist remarks. He was, he says, brutally manhandled by the Officers in the course of the arrest, an arrest for which, he says, there was no reasonable or lawful cause.
The police deny that they used excessive force in effecting the arrest. They say that Mr Thomas was struggling violently while they were endeavouring to arrest him and that they had to use some degree of force to achieve their purpose.
It is common ground that Mr Thomas was taken by the police to Limehouse Police Station where he was detained in police custody until being released on police bail at 9.20am the same morning.
At the Police Station Mr Thomas was charged with the offence of threatening behaviour. He was tried on this charge on 27 November 1990 at Thames Magistrates Court. He was acquitted.
On 23 March 1993 Mr Thomas commenced proceedings in the High Court against the Commissioner. He claimed damages for assault, for damage to his property occasioned by the assault, for false imprisonment and for malicious prosecution. Exemplary damages were claimed.
The false imprisonment claim was based on the allegation that the police had had no lawful occasion to arrest him and that his detention subsequent to the arrest was consequently unlawful. The malicious prosecution case was based on allegations that the Officers deliberately made false statements in support of the threatening behaviour charge. As for the assault and damage to property case, it was not in dispute that in the course of the arrest Mr Thomas had sustained physical injuries and damage to his clothing. He had been medically examined in the Police Station following his arrest and the medical reports made that clear. The first issue on the assault and damage to property case was whether the police had had any lawful occasion to arrest him. If they had not, the assault case would be bound to succeed as, also, would the false imprisonment case. But if the police had had lawful occasion to arrest Mr Thomas, in which event the false imprisonment case would fail, Mr Thomas would still be entitled to succeed on his assault claim if the police, in arresting him, had employed a degree of force that was in all the circumstances excessive.
Mr Thomas' action against the Commissioner came for trial before Mr Justice Michael Davies and a jury in February 1995. It was a case in which the credibility of Mr Thomas on the one hand and the two Police Officers on the other hand would be crucial. Mr Thomas' wife had been a witness to most of the scene outside the London Arena Stage Door. She gave evidence corroborating Mr Thomas' version of the incident. It might have been expected that one side or the other would have called the security guard, but neither did so. So the issue as to what had actually happened in the early morning of 28 May 1990 outside the Stage Door was bound to involve a conflict of evidence between Mr Thomas, supported by his wife, and the two Police Officers.
Mr Thomas gave evidence-in-chief. His wife had not, yet given evidence. At the conclusion of his evidence-in-chief and before cross-examination began, the question was raised with the judge, in the absence of the jury, whether two previous convictions which Mr Thomas had had could be put to him in cross-examination. On 13 October 1980 Mr Thomas had been convicted at Canterbury Crown Court for the offence of unlawful wounding and sentenced to 18 months imprisonment suspended for 2 years. And on 18 October 1983 at Margate Magistrates Court he had been convicted of criminal damage, fined £50 and ordered to pay £24.71 compensation.
The question whether these convictions could be put to Mr Thomas in cross-examination required consideration to be given to the relevant provisions of the Rehabilitation of Offenders Act 1974. The main purpose of the Act was "to rehabilitate offenders who have not been reconvicted of any serious offence for periods of years." (see the Preamble). Section 1 of the Act introduced the concept of a "spent" conviction. On the expiration of a specified period of years after conviction, the "rehabilitation period", the conviction would, provided it had not led to an "excluded" sentence and provided the offender had not during the rehabilitation period received an "excluded" sentence on any subsequent conviction, be treated as "spent". Neither of Mr Thomas' sentences had been an "excluded" sentence (see Section 5(1) of the Act). The rehabilitation period applicable to the unlawful wounding conviction was 10 years. So the conviction had become spent on 13 October 1990. The rehabilitation period applicable to the criminal damage conviction was five years. So that conviction had become spent on 18 October 1988.
Section 4(1) of the Act sets out the effect of a conviction becoming "spent". It provides as follows:—
(1) Subject to sections 7 and 8 below, a person who has become a rehabilitated person for the purposes of this Act in respect of a conviction shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction; and, notwithstanding the provisions of any other enactment or rule of law to the contrary, but subject as aforesaid—
(a) no evidence shall be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in Great Britain to prove that any such person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which was the subject of a spent conviction; and
(b) a person shall not, in any such proceedings, be asked, and, if asked, shall not be required to answer, any question relating to his past which cannot be answered without acknowledging or referring to a spent conviction or spent convictions or any circumstances ancillary thereto".
I draw attention to the breadth of the words "… for all purposes in law …" and "… notwithstanding the provisions of any other enactment or rule of law to the contrary …".
It is clear from section 4(1) that, unless the case could be brought within either section 7 or section 8 of the Act, Mr Thomas' spent convictions could not be put to him in cross-examination. Section 8 relates to defamation actions and has nothing to do with this case. Section 7 sets out a number of limitations to section 4(1).
Nothing turns on sub-section (1) of section 7. Sub-section (2) provides that:—
"Nothing in section 4(1) above shall affect the determination of any issue, or prevent the admission or requirement of any evidence, relating to a person's previous convictions or to circumstances ancillary thereto —
(a) in any criminal proceedings in Great Britain (including any appeal or reference in a criminal matter);
…
(f) in any proceedings in which he is a party or a witness, provided that … he consents to the determination of the issue or, as the case may be the admission or requirement of the evidence notwithstanding the provisions of section 4(1).
Sub-section (3), however, is the critical provision for present purposes. It provides as follows:—
"If at any stage in any proceedings before a judicial authority in Great Britain (not being proceedings to which, by virtue of any of paragraphs (a) to (e) of subsection (2) above or of any order for the time being in force under subsection (4) below, section 4(1) above has no application, or proceedings to which section 8 below applies) the authority is satisfied, in the light of any considerations which appear...
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