On 11th December the Court of Appeal handed down judgment which concerned the question of whether the Claimant (more widely known as Michael Barrymore) should be entitled to substantial damages, claimed in the sum of £2.4 million, or only nominal damages following his unlawful arrest.
On 31 March 2001, following a social gathering at the Claimant’s home, a Mr Lubbock was found dead in the swimming pool. He later died at hospital. Some years later following a police re-investigation, a decision was made to simultaneously arrest three suspects, including the Claimant. This was deemed necessary to prevent collusion, maintain an element of surprise and enable concurrent interviews to compare responses in real time.
DC Jenkins was the designated arresting officer for the Claimant. She had played a central role in the re-investigation and was fully aware of the evidence. She believed she had reasonable grounds both to suspect the Claimant of committing an offence and that it was necessary to arrest. No other officer had been fully briefed as to the reasons to justify the arrest in order to avoid disclosure of information due to the Claimant’s celebrity status.
On the day of the arrests, DC Jenkins was detained in traffic and not on site to effect the arrest at the requisite time. PC Cootes was ordered to arrest the Claimant which he duly did.
Following the arrests, no material additional information came to light and the CPS decided there was insufficient evidence for any charge to be brought.
First Instance decision
The Chief Constable (“CCE”) admitted that the Claimant’s arrest was unlawful as PC Cootes (the arresting officer) did not personally have reasonable grounds for the necessary suspicion to justify the arrest as required by s.24(2) of the Police and Criminal Evidence Act 1984 and in accordance with the well-established principles in O’Hara v Royal Ulster Constabulary  AC 28.
CCE contended, however, that the Claimant was only entitled to nominal damages on the basis that he could (and would) have been arrested lawfully had DC Jenkins not been stuck in traffic. CCE relied on the decision of R (Lumba) v Sec State for the Home Dept  UKSC 12;  1 AC 245, in that the power to detain was available had the officers had the legal requirements in mind, therefore the Claimant would have been lawfully detained had the proper procedures been followed. Either DC Jenkins would have lawfully arrested the Claimant had she not been stuck in traffic or, one of the surveillance officers would have been provided sufficient information as to the grounds for arrest from DC Jenkins over the telephone.
This was dealt with as a preliminary issue in 2017 by Justice Stuart-Smith. He found that the Claimant was entitled to substantial damages because he had been unlawfully arrested by someone who did not have the requisite information to satisfy the O’Hara grounds to suspect.
Substantial or nominal damages?
On appeal CCE argued that substantial damages should not be awarded based on the interpretation of the counterfactual scenario presented – that a lawful arrest would have taken place had DC Jenkins been present.
In finding in favour of CCE, the court found that substantial damages will not be awarded if, had the defendant acted lawfully, the Claimant would have been detained in any case. Assuming that there were reasonable grounds to suspect the Claimant of committing an offence and a reasonable belief in the necessity of arrest, it was wrong to conclude that the Claimant was entitled to substantial rather than nominal damages. The Court emphasised the judgement did not encourage sloppy practice, but rather, to reflect actual loss suffered.
There must, however, be a distinction drawn between substantive and procedural decisions. In this case, the substantive requirements (that of compliance with s.24 PACE) depended on the state of mind of DC Jenkins. The procedural requirement (the O’Hara obligation that the arresting officer must have reasonable cause) would have been followed had DC Jenkins appreciated what was required. The fact that there was no evidence about what would have happened was not to the point. If DC Jenkins had been alert to the O’Hara obligations, either the arrest would have awaited her arrival or she would have sufficiently briefed PC Cootes as to the reasonable grounds for arrest. The Court succinctly dealt with this issue by stating they have “no doubt that had things been done as they should have been done, a lawful arrest would have been effected.”
Reasonable Suspicion and necessity
The Court of Appeal counselled against courts adopting an approach which seeks to over-compartmentalise material considered by the police in order to discretely analyse its relevance on a piece-by-piece basis. Officers are duty bound to weigh all material in deciding whether there were reasonable grounds for suspecting and arresting a suspect and an officer’s suspicion may take account of matters that could not be put in evidence and may be based on assertions that turn out to be wrong. The factors in the mind of the arresting officer fall to be considered cumulatively.
In relation to necessity, what is required is actual belief the arrest was necessary and objectively, that the belief is reasonable. The court agreed with the lower court that there were grounds to suspect the Claimant to be guilty of an offence and it was necessary to arrest him.
Application and commentary
Lying behind the decision in Lumba is the principle that although procedural failings are lamentable and render detention unlawful, they do not, of themselves, merit substantial damages. This judgement represents an extension of the Lumba principle and may have possible application in other categories of police cases where minor technical breaches (as opposed to substantive breaches) render an otherwise lawful action unlawful.
One can envisage many situations where it could be argued that the rationale behind the decision should be applied for example if a technical failure to conduct a statutory review of detention renders on-going detention unlawful or widening the scope further where a search under warrant is found to be unlawful due to a minor technical failure. A case can now be made that only nominal damages should be awarded in such situations. It will be interesting to see how the case law develops.
If you would like to know more about this matter, please speak to your contact at Plexus Law:
Tom Silson, Associate Partner
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