Okoya v Metropolitan Police Service

On an application for permission to appeal, an arguable point of law may justify permission even where the factual case appears weak and a successful appeal would lead only to a retrial. The court may consider the practical prospects on the material available, but should not refuse permission merely because eventual success seems unlikely when the legal argument cannot fairly be rejected.

Where further litigation may be disproportionate, the Court of Appeal may direct that the parties be invited to use alternative dispute resolution before taking further appellate steps.

The applicant alleged that police officers unlawfully arrested her in a betting shop after mistaking her identity for that of a suspected drug dealer. The officers used considerable force, including pressure around her neck. At trial before His Honour Judge Martineau in the Central London County Court on 6 October 2000, factual issues were put to a jury. The judge concluded that the arrest was lawful, relying on the officers’ belief that she was about to swallow cocaine and on the need to recover evidence, and refused permission to appeal.

The applicant applied to the Court of Appeal, arguing that the judge had erred in law. The central issue was whether that proposed challenge was sufficiently arguable to justify permission despite the apparently weak factual case and the likely need for a retrial.

Permission to appeal was granted. Lord Justice Thorpe did not finally determine whether the arrest was lawful. He held only that the proposed legal challenge fell within the range of the arguable.

1. The trial judge’s reasoning was open to question. The officers had arrested the wrong person because of a mistake as to identity, and the force used was considered considerable. The judge nevertheless regarded the force as justified by the officers’ sincere belief that the claimant was a cocaine dealer who was about to swallow drugs, both because swallowing might endanger her and because recovery of the drugs could provide evidence.
2. The court took account of the apparently poor factual prospects. The respondent said that the jury had answered the factual questions in its favour and that contemporaneous video recordings contradicted the claimant’s evidence. The trial judge had described the claim as hopeless. However, Lord Justice Thorpe did not have sufficient material to conclude that the appeal must fail in the jury room. The applicant also relied on medical evidence capable of supporting substantial damages. The possible weakness of the facts therefore did not justify refusing permission where the legal point was properly arguable.
3. Before any further appellate steps, the parties were to be invited to submit their dispute to the Court of Appeal’s alternative dispute resolution scheme. The court considered negotiation preferable to an extensive and expensive appeal which might result only in a retrial. The application was allowed in accordance with the judgment.

• Court of Appeal (Civil Division): On 13 February 2001, permission to appeal was granted and the parties were directed to engage with the court’s ADR scheme before further appellate steps. [2001] EWCA Civ 294
• Central London County Court: On 6 October 2000, His Honour Judge Martineau held that the arrest was lawful after factual issues had been considered by a jury and refused permission to appeal.