Cumming & Ors v Chief Constable of Northumbria Police

At the permission stage, permission should be granted where the court cannot be sure that an appeal has no realistic prospect of success and no sufficient answer can dispose of it summarily. Granting permission does not determine the merits or imply that the appeal is likely to succeed.

In a wrongful-arrest case, arguable issues may include whether police genuinely suspect an individual when they know only that one member of a small group is guilty, and whether arresting the whole group to exert pressure for a confession is reasonable in Wednesbury terms, particularly where voluntary attendance is available.

Five CCTV staff members were arrested on suspicion of attempting to pervert the course of public justice after recordings of an offence were interfered with. A sixth staff member admitted wiping one tape, and the five applicants were accepted to have been innocent.

Following a four-day trial, Judge Hewitt in the Newcastle County Court rejected their wrongful-arrest claim. The applicants sought permission to appeal. The Court of Appeal considered whether there were realistic grounds concerning the formation of suspicion against individuals within a small group and the reasonableness of arresting the whole group to obtain a confession.

Lord Justice Simon Brown gave the judgment, with Lord Justice Ward agreeing. The Court of Appeal was concerned only with permission to appeal; it did not determine whether the arrests were lawful.

1. Permission threshold. The applicants had failed at trial, but the court could not be sure that there was no realistic prospect of success on a further appeal. Having considered the papers and heard brief argument, the court could not deliver a sufficient knock-out answer disposing of every sound argument on fact or law. Permission was therefore granted. The grant did not mean that the appeal was bound to succeed, nor that the applicants should take particular encouragement from it.
2. Formation of suspicion. The first promising issue was whether police could properly be said to suspect a particular person of a crime where they were certain only that someone was guilty and concluded that the person was one of a small number who must include the offender. The court left that issue for consideration on the substantive appeal.
3. Arrest of a group. The related issue was whether it was reasonable in Wednesbury terms to arrest several people, most of whom the police recognised were likely to be wholly innocent, to exert maximum pressure on the guilty person or persons to confess. The question arose in light of the House of Lords decision in Mohammed-Holgate v Duke [1984] 1 AC 437. It also included whether arrest was permissible where persons of good character might attend the police station voluntarily for the investigation.
4. Scope and order. The court granted permission without limiting the proposed appeal, while advising the applicants to select their points carefully and discouraging an overly broad challenge to the judge’s basic factual findings. The time estimate was one day, with costs to be costs in the appeal.

1. Court of Appeal (Civil Division): permission to appeal granted on 9 June 2003. The Court of Appeal did not determine the merits.
2. Newcastle County Court: following a four-day trial on 27 January 2003, Judge Hewitt rejected the applicants’ wrongful-arrest claim.