Cumming & Ors v Chief Constable of Northumbria Police

A lawful arrest under section 24(6) of the Police and Criminal Evidence Act 1984 requires genuine suspicion, objectively reasonable grounds for that suspicion, and a lawful exercise of the discretion to arrest.

Reasonable suspicion must rest on facts or information capable of satisfying an objective observer that the person may have committed the offence. It requires less than prima facie proof. Opportunity may suffice where a small group comprises the only people capable of committing the offence and the police cannot reasonably narrow that group further.

The discretion to arrest must be reviewed carefully because liberty is engaged. Arrest for questioning may nevertheless be proper where it serves a legitimate investigative purpose and falls within the range reasonably open to the police.

Five local authority CCTV employees were arrested on suspicion of perverting the course of justice after recordings relevant to a criminal investigation appeared to have been deliberately overwritten or tampered with. The police had reduced the possible suspects to the appellants and one colleague but could not identify which individual was responsible. The appellants were innocent and claimed damages for wrongful arrest and false imprisonment, including damages for psychiatric consequences.

HHJ Hewitt in Newcastle County Court dismissed the claims. He found that the officers genuinely suspected the arrested persons, had reasonable grounds for doing so, and had lawfully exercised their discretion to arrest. The employees appealed, challenging the objective grounds for suspicion and the reasonableness of arrest rather than voluntary interview.

The central issues were whether opportunity shared by a small group could provide reasonable grounds to suspect every member and whether arrest was a lawful exercise of discretion, having regard to the right to liberty.

1. Appeal dismissed unanimously. Per Latham LJ, the judge was entitled to find that the officers genuinely suspected that one or more of the six arrested persons had interfered with the tapes. The officers had investigated the available material, reduced the relevant group as far as reasonably possible, and remained justifiably uncertain about the time of the interference.

2. Reasonable suspicion requires facts or information supporting the officer’s suspicion. The information must be capable of satisfying an objective observer that the arrested person may have committed the offence. This requirement is consistent with article 5(1)(c) of the European Convention on Human Rights. It does not require admissible evidence or a prima facie case. Information received from another officer may provide the necessary grounds.

3. Opportunity can constitute reasonable grounds for suspicion. A person may reasonably be suspected where a small, clearly identified group contains the only people capable of committing the offence, even though the offence was probably committed by only one or two members. This applies where no available information could or should have enabled the police to narrow the group further. On the judge’s findings, the officers therefore had reasonable grounds to suspect each person arrested.

4. Arrest for the purpose of applying investigative pressure and questioning a suspect may be a proper purpose. A proper purpose and reasonable suspicion do not, however, determine whether the discretion to arrest was lawfully exercised. The court must examine carefully whether no reasonable police officer could have made the decision, bearing in mind the importance of the arrested person’s liberty.

5. Article 5 did not require a different test for reviewing the police discretion. Its protection against arbitrary arrest was principally secured by the requirement of reasonable grounds, although the importance of liberty informed the court’s scrutiny. The judge could find that the perceived seriousness of the breach, the mistaken but reasonable belief that an earlier voluntary inquiry had failed, and the perceived need for prompt action placed the arrests within the officers’ lawful discretion.

6. Brooke LJ remained very uneasy because the employees had not first been interviewed. He nevertheless agreed with Latham LJ because the unchallenged findings established that the police reasonably believed management had already conducted an unsuccessful inquiry. The President agreed. Permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously by the court in [2003] EWCA Civ 1844. Permission to appeal to the House of Lords was refused.
2. Newcastle County Court: HHJ Hewitt dismissed the claims for wrongful arrest and false imprisonment on 27 January 2003. He held that the officers acted in good faith, had objectively reasonable grounds for suspicion, and lawfully exercised their discretion to arrest.