False imprisonment

Walker v Commissioner of the Police of the Metropolis: Court of Appeal, Civil Division: 1 July 2014

Unlawful detention by police officer – Appellant being involved in violent incident – Police being called – Officer blocking appellant in doorway to make enquiries – Whether detention having been unlawful and amounting to false imprisonment – Whether appellant’s reaction having been reasonable and proportionate act of self-defence – Whether purported arrest having been valid

A complaint had been made by the appellant’s girlfriend that he had hit her. The police had attended and, after a violent incident, the appellant was arrested and taken into custody. He was later released on bail. The appellant was charged with assault of a police officer in the execution of his duty.

The district judge found that the police officer concerned, PCA, had restricted the appellant’s movements in a doorway, without having intended or purported to arrest him, thereby having detained him unlawfully and that the appellant’s actions had been reasonable. He was acquitted on the ground that his initial detention had been unlawful and, consequently, the charge had failed on an essential ingredient of the offence.

Two years later, the appellant issued a claim for damages for false imprisonment, assault and malicious prosecution. The circumstances of the incident, including the initial detention and arrest, were disputed. The judge preferred the evidence given on behalf of the respondent police and the corroborating evidence of an eye witness. PCA’s evidence had been that on his arrival at the scene, the appellant’s girlfriend said that the appellant had punched her.

PCA had considered that he had had reasonable grounds to suspect the appellant of an arrestable offence, but that he had decided to make enquiries first in the hope of avoiding making an arrest. The appellant had been standing in a doorway and PCA had positioned himself so that the appellant could not get past. PCA did not touch the appellant while he was shouting and swearing in an aggressive manner and threatened PCA.

PCA’s first words, which he repeated, were ‘calm down mate or you will end up getting arrested’. The appellant firmly pushed PCA in the chest, at which point PCA told him that he was under arrest for ‘public order’. He had not had time to add ‘section 5 [of the Public Order Act 1986]’ or words to that effect because the appellant began a fight. Another police officer came to assist. PCA was bitten on his arm and finger by the appellant before being arrested.

The defence counsel accepted that the appellant’s initial detention in the doorway had not been for the purpose of arrest, but for the purpose of pursuing enquiries and that that had amounted to a detention. The appellant contended that that initial detention had been unlawful and had justified his use of reasonable force to extricate himself from what had been an unlawful, if brief, imprisonment. That initial unlawfulness was, it was submitted, compounded by PCA’s failure to effect a lawful arrest at the time when, on PCA’s evidence, he had purported to arrest the appellant, namely immediately before the fight broke out.

The judge dismissed the claim. He found that PCA had positioned himself in such a way as to prevent the appellant from escaping and that he had honestly and reasonably feared that the appellant would try to escape. Further, the appellant had threatened PCA and pushed him violently. That had been a wholly disproportionate, unnecessary and unreasonable response and reaction to PCA’s request to calm down.

Furthermore, very shortly after, PCA had arrested the appellant for a public order offence and he had had section 5 of the 1986 act in mind. Matters had escalated quickly because of the appellant’s violence and temper, but he had heard that he was under arrest and had been given full and adequate reasons for that action. The judge concluded that the detention, which had lasted for a matter of seconds, had been a trivial and fully justified interference with the appellant’s freedom of movement which had not constituted a deprivation of liberty.

In the circumstances and on the facts as found, PCA had been fully entitled to detain the appellant. The appellant’s reaction to having been told to calm down had been disproportionate, unreasonable and an unlawful overreaction. The appellant appealed.

The issues for determination were: (i) whether the appellant’s initial detention in the doorway had been unlawful, thus having amounted to false imprisonment; if so, (ii) had the appellant’s reaction to that detention been a reasonable and proportionate exercise in self-defence; and (iii) whether the purported arrest for ‘public order’ had been a valid arrest within section 28(3) of the Police and Criminal Evidence Act 1984.

The appeal would be allowed in part.

(1) The appellant had been unlawfully imprisoned in the doorway by PCA for a brief period, even if such detention might, in the circumstances, have been called ‘technical’. The judge’s reasons for having held that the detention and confinement had been within generally acceptable standards of the conduct of ordinary citizens and thus lawful had not been good reasons. It was not acceptable for an ordinary citizen to interfere with a person’s liberty by confining him in a doorway.

Although the confinement had been for only a few seconds, the principle in question was framed in terms of ‘for however short a time’. It was understandable that where liberty was in question, as in the case of assault, there was no room for complaisance. Moreover, the confinement would have been longer if the situation had not developed into an arrest and fight. The judge had remarked that the appellant had not been, in the true sense, deprived of his liberty. That concept was not identical with the tort of false imprisonment, and, it was established law that there might be a deprivation of liberty without false imprisonment and vice versa (see [30], [31], [33], [46], [50] of the judgment).

The appeal would be allowed on the first ground. The appellant was entitled to damages of £5 for the brief and ‘technical’ imprisonment immediately before his own unlawful violence and initial arrest (see [44], [45] of the judgment).

Collins v Wilcock [1984] 3 All ER 374 applied; Bird v Jones [1845] 7 QB 742 applied; Donnelly v Jackman [1970] 1 All ER 987 distinguished; Austin v Metropolitan Police Comr [2008] 1 All ER 564 applied.

(2) There had been several alternatives open to the appellant short of violence to have emphasised that he had not wanted to speak to PCA; but the appellant had resorted directly to threats and actual violence for the very reason that he had been already angry and aggressive. The court would not revisit the judge’s findings on the issue of whether the appellant’s reaction had been a reasonable and proportionate exercise in self-defence (see [34], [35] of the judgment).

The appeal would be dismissed on the second ground (see [44] of the judgment).

(3) The court would not go behind the judge’s finding that PCA had arrested the appellant for public order and had had section 5 of the 1986 act in mind. In the particular circumstances of the relevant incident, the appellant had to have been fully aware that he was being arrested for his conduct in the face of PCA and that that had been regarded as a public order offence. That had been a legally and factually adequate explanation of the reason for the arrest (see [38], [43], [46], [50] of the judgment).

The appeal would be dismissed on the third ground (see [44] of the judgment). Taylor v Chief Constable of Thames Valley Police [2004] 3 All ER 503 applied.

Anthony Metzer QC (instructed by Hodge Jones & Allen LLP) for the appellant; Mark Ley Morgan (instructed by the Metropolitan Police Service) for the respondent.