False imprisonment

Following a trial of a preliminary issue, it was ruled that the claimant, well-known television personality Michael Barrymore, could have only been lawfully arrested by the designated arresting officer and that, in her absence, the claimant had not been lawfully arrested. The Queen’s Bench Division ruled that the claimant was not restricted to recovering nominal damages only from the defendant Essex Police Chief Constable.

Background

The claimant was a well-known celebrity entertainer who appeared widely on television and elsewhere. In the early morning of 31 March 2001, he returned to his home with eight other people, including the deceased. A few hours after arriving at the claimant’s home, the deceased was found dead in the pool. An initial post-mortem revealed serious anal injuries that appeared recent and consistent with penetration by a firm object.

Although the claimant was initially questioned a number of times, he was never arrested on suspicion of rape and/or murder of the deceased.

In December 2006, a re-investigation commenced. The most important people for present purposes were the Senior Investigating Officer (the SIO) and the intended arresting officer (DCJ). The re-investigation was very extensive and covered a wide range of forensic possibilities.

By May 2007, the SIO had decided that a full arrest package should be prepared to examine the claimant and two other suspects.

In June, the arrest plan was completed, and the SIO approved the arrest of the claimant and two other suspects.

A number of surveillance officers had been in the vicinity of where the claimant had stayed the night before his arrest. When the claimant left the premises in the morning, DCJ had not arrived. The surveillance officers were ordered to arrest the claimant and it fell to another police officer (PCC) to do so. Neither PCC nor anyone else in the surveillance team had been briefed sufficiently to enable them to arrest the claimant lawfully.

The claimant was released on bail following the arrest. In September, he answered his bail and was further interviewed. That same day the Crown Prosecution Service confirmed that there was insufficient evidence to justify charging any of the three suspects and the claimant was informed that no further action would be taken against him.

The claimant brought proceedings for false imprisonment against the defendant. The purpose of the present proceedings was for a preliminary issue to be determined. The defendant Chief Constable, in the present proceedings conceded that the claimant’s arrest had been unlawful.

Issues and decisions

Whether the defendant had established that the claimant could and would have been lawfully arrested but for the delay in attendance of DCJ and, that, as a result, the claimant was entitled only to nominal damages for false imprisonment.

There was a balance that had to be maintained between the need to protect the public and bring criminals to justice on the one hand and the right of an individual not to be arrested on inadequate grounds. Striking the balance would be acutely fact sensitive in each case. Parliament had provided the criteria for the striking of the balance between the public and private interests by setting them out in ss 24(2), (4) and (5) of the Police and Criminal Evidence Act 1984 (PACE) (see [6]-[8] of the judgment).

In principle in O’Hara v Chief Constable of Royal Ulster Constabulary ([1997] 1 All ER 129 ) (O’Hara) provided that, for obvious practical reasons, police officers had to be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power did not require that the constable who exercised the power had to be in possession of all the information which had led to a decision, perhaps taken by others, that the time had come for it to be exercised. What it did require was that the constable who exercised the power had to first have equipped himself with sufficient information so that he had reasonable cause to suspect before the power was exercised (see [21] of the judgment).

On the basis of their evidence, both the SIO and DCJ had suspected that offences had been committed, specifically the offences of rape and murder.  The decision whether they had reasonable grounds for their suspicion was more finely balanced (see [136], [137] of the judgment).

It was clear beyond argument to the contrary that he claimant had been one of a small number of people who could be clearly identified as the only ones capable of having committed the offences of rape and murder. Accordingly, it would be held that the SIO and DCJ had had reasonable grounds to suspect the claimant of being guilty of the offences of rape or murder, whilst reiterating that the evidence available to them fell far short of proof to the standard required for charging or a conviction (see [138] of the judgment).

Relying upon their evidence, it was a fact that both the SIO and DCJ had believed that it had been necessary to arrest the claimant to allow the prompt and effective investigation of the offences. There had been reasonable grounds for believing that arresting each of the three suspects was an operational necessity. Therefore, in conclusion, the statutory requirement laid down by s 24(4) of PACE had been satisfied. For those reasons, the claimant could have been lawfully arrested by DCJ (see [139], [140] of the judgment).

The SIO’s evidence, which was accepted on that point, was that the claimant was going to be arrested on being sighted whether by the designated officer or by someone stepping into that breach in her absence. On the evidence, no one on site when the claimant had been sighted had been in a position to arrest him lawfully and no one on site had either known of or had in mind the O’Hara point. If the tort of unlawful arrest by PCC had not occurred, another of the officers present would have arrested the claimant, also unlawfully. Accordingly, the submission that the claimant would have been lawfully arrested would be rejected, together with the submission that he was entitled only to nominal damages for false imprisonment (see [143], [150], [151], [153] of the judgment).

Hussien v Chong Fook Kam [1969] 3 All ER 1626 applied; O’Hara v Chief Constable of Royal Ulster Constabulary [1997] 1 All ER 129 applied.

Hugh Tomlinson QC and Lorna Skinner (instructed by McAlinneys Solicitors) for the claimant.

John Beggs QC and Cecily White (instructed by DAC Beachcroft) for the defendant.

Rasheed Sarpong, Solicitor.