Shepherd v Chief Constable of Cheshire Police

The exceptional common-law power to arrest preventively may be exercised where the arresting officer reasonably apprehends a real and present threat of a breach of the peace in the near future. The threat need not arise from violence personally committed by the person arrested. In an organised and comparatively small group, it may be sufficient to identify that person as a knowing participant rather than an innocent member of a large crowd. The officer must exercise independent judgment, informed by the circumstances known to him. The Human Rights Act 1998 did not require revision of those principles in the circumstances. Pleadings must identify the parameters of the dispute, but evidence may develop at trial without invalidating the case where the essential issues are clear and no prejudice is caused.

Edmund Shepherd claimed that police officers had wrongly arrested and falsely imprisoned him on 8 and 9 February 1997 during demonstrations in Cheshire. Following a jury trial, Judge Phipps dismissed the claim on 24 October 2000. The applicant sought permission to appeal, alleging errors in assessing whether the arrests were justified and an impermissible departure from the pleaded defence.

The renewed application concerned whether the evidence justified an apprehended future breach of the peace, whether there was sufficient basis for connecting the applicant with that threat, and whether the defence had been adequately pleaded.

1. Renewed application refused. The judge below was entitled to conclude that both arrests were justified.
2. The common-law power of preventive arrest is exceptional. The arresting officer must independently assess whether there is a real and present threat of a breach of the peace in the immediate or near future. The officer may take account of the nature of the organisation involved and earlier incidents known to the police.
3. It was unnecessary for the applicant himself to have committed violence, or for there to be evidence that he would personally use violence. The evidence supported the finding that he knowingly participated in an organised, comparatively small group which moved between planned demonstrations and private premises. He was not an innocent person accidentally caught up in a large public assembly.
4. The principles governing the power of arrest did not require revision because of the Human Rights Act 1998 in the circumstances of the case.
5. The defence sufficiently marked out the parameters of the dispute. Evidence in a lengthy trial may contain variations and additional matters without amounting to an impermissible change of case. No prejudice had been shown.

• Court of Appeal (Civil Division): Renewed application for permission to appeal from the Liverpool County Court was refused.
• Liverpool County Court: Judge Phipps dismissed the claim on 24 October 2000.