Lewis & Anor v The Chief Constable of the South Wales Constabulary

An arrest is a factual, continuing deprivation of liberty. Its existence is distinct from its lawfulness. Under section 28(3) of the Police and Criminal Evidence Act 1984, the grounds for arrest must be given at the time of arrest or as soon as practicable afterwards. If that duty is initially breached, the earlier detention remains unlawful, but giving the grounds later makes the continuing custody lawful from that point. Release and immediate re-arrest are unnecessary. Damages are therefore confined to the period before the grounds are given.

The appellants brought claims for wrongful arrest and false imprisonment against the respondent Chief Constable. A jury found that they had been arrested in a car on reasonable suspicion of burglary but had not been told the grounds for arrest until they were at the police station. The periods before the grounds were given were found to be 10 minutes and 23 minutes.

The Bridgend County Court held that the initial arrests were unlawful but that the custody became lawful when the grounds were supplied. Each appellant received £200. The appellants appealed, arguing that the original unlawfulness continued throughout their five-hour detention. The respondent’s notice challenged the jury’s findings as perverse.

The appeal was dismissed. Balcombe LJ gave the substantive judgment, and Taylor LJ agreed without adding reasons.

1. Nature of arrest. Arrest is a factual and continuing act, beginning when a person is taken into custody or deprived of liberty. Its existence does not depend on legality. Balcombe LJ treated the definitions in Spicer v Holt [1977] A.C. 987 and Mohammed-Holgate v Duke [1984] A.C. 437, as cited in Murray v Ministry of Defence [1988] 1 WLR 692, as continuing to represent the law after the 1984 Act.
2. Effect of supplying the grounds. Section 28(3) of the Police and Criminal Evidence Act 1984 made the initial custody unlawful because the grounds were not given at the time of arrest or as soon as practicable. It did not make the arrest a nullity. Consistently with R. v. Kulynycz [1971] 1 Q.B. 367, supplying the grounds later could not retrospectively validate the earlier period, but made the continuing custody lawful from that point. Release followed by immediate re-arrest was unnecessary. Section 31 supported this construction because a person already in custody could be arrested for another offence without being physically released and retaken.
3. The appellants were accordingly entitled to damages only for the periods before the grounds were supplied. The awards of £200 each were properly made.
4. Respondent’s notice. Applying the approach in Mechanical and General Inventions Company Limited and Lehwess v Austin and the Austin Motor Company Limited [1935] A.C. 346, the appellate court could not substitute its own factual findings for those of the jury. Although there was no direct evidence supporting the precise figures of 10 and 23 minutes, a properly directed jury could have found that some intervals existed. The appropriate course, if the verdicts were set aside, would have been a new trial rather than judgment for the respondent. As no new trial was sought, the judgment below stood. The appeal was dismissed with costs, subject to the stated enforcement and legal-aid orders, and leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) — On 11 October 1990, dismissed the appeal and left the county court judgment standing.
• Bridgend County Court — On 5 October 1989, held that the arrests were initially unlawful but that custody became lawful when the grounds were supplied, awarding £200 to each appellant.