Al Fayed & Ors v Commissioner of Police of the Metropolis & Ors

A constable may arrest under section 24(6) only where the officer actually suspects guilt, has objectively reasonable grounds for that suspicion, and exercises the resulting discretion reasonably. Reasonable suspicion is materially below a prima facie case. It may arise from information, including evidence that would be inadmissible, and must be assessed in its full context.

Article 5 does not impose a general necessity condition upon arrest under Police and Criminal Evidence Act 1984. Human-rights considerations may narrow the ordinary Wednesbury margin where the interference with liberty is substantial. A short, considerate arrest and detention for an interview to which the suspect was already willing to submit will not normally do so.

A custody officer must independently have objectively reasonable grounds to believe detention is necessary to obtain or preserve evidence. The officer need not conduct a forensic inquiry into the legality or evidential basis of the arrest.

The appellants, including Mohammed Al Fayed and four former Harrods employees, attended Kennington Police Station by arrangement in March 1998. They were arrested without warrant on suspicion of theft and criminal damage to the contents of a safe-deposit box, interviewed under caution, and released on bail shortly afterwards. No charge followed.

They sued the Commissioner and police officers for wrongful arrest and false imprisonment. Cresswell J in the Queen’s Bench Division dismissed the claims on 13 August 2002.

The appeal concerned whether the arresting officers had reasonable grounds for suspicion, whether arrest was an unreasonable exercise of discretion, whether custody officers lawfully authorised continued detention for interview, and whether the judge had adequately explained his conclusions.

1. Appeal dismissed. Auld LJ, with whom Tuckey LJ and Jackson J agreed, upheld the dismissal of all claims for wrongful arrest and false imprisonment.

2. Under section 24(6) of Police and Criminal Evidence Act 1984, the court applies the three inquiries stated in Castorina. The officer must actually suspect the arrested person; reasonable grounds for that suspicion must objectively exist; and the decision to arrest must be Wednesbury reasonable. Reasonable suspicion is conjecture or surmise short of proof. It may rest on information not amounting to admissible evidence, assessed as a whole. Opportunity to commit an offence is a relevant consideration. It need not be exclusive of every other possible suspect.

3. The accumulated material entitled the judge to find reasonable grounds to suspect each appellant of joint criminal responsibility for theft or criminal damage. The material need not have provided a prima facie case against each individual.

4. The arresting officers had exercised, rather than fettered, their discretion. They considered the appellants’ offers of voluntary co-operation and obtained legal advice. Arrest for interview, and the control it afforded during an interview, were legitimate considerations. Article 5 did not substitute a necessity test for Wednesbury review. Although the intensity of review may increase with the seriousness, publicity, duration or harshness of an interference with liberty, these brief and considerate arrests involved minimal practical interference.

5. The custody officers also acted lawfully under sections 37(2) and 37(3). On the information provided, each could reasonably believe that a short detention was necessary to obtain evidence by questioning. Their independent function did not require a forensic investigation of the arrest’s legality or of the full evidential file. The court ordered the appellants to pay costs on the indemnity basis.

• Court of Appeal (Civil Division): By [2004] EWCA Civ 1579, dismissed the appellants’ appeal and affirmed the dismissal of their claims.
• Queen’s Bench Division (Cresswell J): On 13 August 2002, dismissed the claims for damages for wrongful arrest and false imprisonment.