Stanley v Benning (t/a Temptation Clothing & Charlie Browns Menswear)

The legality of a citizen’s arrest under section 24(4) and (5) of the Police and Criminal Evidence Act 1984 is determined in the civil proceedings themselves. A prior criminal acquittal does not conclusively establish, against a defendant who was not a party to those proceedings, that no arrestable offence was committed. The civil court may decide that condition on the balance of probabilities. Under section 24(4), whether conduct remained a continuous act of committing an arrestable offence is a question of fact and degree for the jury. A lawful arrest may therefore be made while a suspected thief is immediately making off, where the statutory conditions are met.

Mr Stanley sued the proprietor of a clothing shop for assault, false imprisonment and malicious prosecution, alleging vicarious liability for the shop manager’s conduct. He had earlier been acquitted of theft in the Birmingham Magistrates’ Court. At trial in the Birmingham County Court, the jury found that the manager honestly believed Mr Stanley was stealing, that he was in the process of stealing when apprehended, that the arrest was made apparent and its grounds given, and that excessive force was not used. The action was dismissed.

The appeal concerned whether the arrest was lawful under section 24(4) or (5) of the Police and Criminal Evidence Act 1984, and whether the earlier acquittal prevented the civil defendant from proving that an arrestable offence had been committed.

Appeal dismissed. The Vice-Chancellor delivered the leading judgment. Lord Justice Peter Gibson agreed with his reasons in their entirety. Lord Justice Schiemann agreed in the result and preferred to rest his judgment on section 24(5), while not disagreeing with the reasoning on section 24(4).

1. Under section 24(5) of the Police and Criminal Evidence Act 1984, the commission of an arrestable offence is a condition precedent to the citizen’s power of arrest. The earlier acquittal did not conclusively determine that issue in later civil proceedings between different parties. Hunter v Chief Constable of the West Midlands Police [1982] AC 529 and Smith v Linskills [1996] 1 WLR 763 concerned convicted persons attempting to mount collateral attacks on their convictions. They did not prevent a civil defendant from proving that an acquitted person had committed the offence. The issue could be determined by the civil tribunal on the balance of probabilities.
2. The Vice-Chancellor distinguished R v Self [1992] 1 WLR 657. Section 24(4) could not have applied on the facts of that case because the offence was complete before the arrest. In the present context, however, the dishonest conduct could constitute one continuous process. Whether the offence was still being committed at the time of arrest was a question of fact and degree for the jury. It was unnecessary to identify the precise moment at which the theft was completed. The jury’s finding was not perverse.
3. Lord Justice Gibson accepted the reasoning drawn from Hale (1978) 68 Cr App R 415 that theft need not be instantaneous and that the thief may remain in the course of stealing while making off. The judge was entitled to leave the relevant questions to the jury. Since the arrest was lawful, the claims based on assault and false imprisonment failed. The order was appeal dismissed with costs, not to be enforced without leave of the court or trial court, with legal aid taxation.

• Court of Appeal (Civil Division): dismissed the appeal with costs and ordered legal aid taxation.
• Birmingham County Court: following a jury trial before His Honour Judge Durman, dismissed the claims for assault, false imprisonment and malicious prosecution.