Paul v Humberside Police

A police officer’s statutory power to arrest is discretionary. Its exercise is reviewable on ordinary administrative law principles, including good faith, with particular regard to the importance of personal liberty. Reasonable suspicion does not by itself establish that an arrest was lawfully made.

In malicious prosecution, reasonable and probable cause has objective and subjective elements. The judge determines whether the circumstances reasonably justified belief in guilt. Where sufficient evidence exists, the jury determines the prosecutor’s actual beliefs and whether the prosecution was malicious.

A judge must leave such factual issues to the jury where circumstantial evidence could support the claimant’s case. The same principle applies to disputed good faith in decisions to arrest, charge or continue detention for the arrested person’s protection.

The claimant voluntarily attended a police station after admitting that he had struck a man who later died in police custody. He was arrested on suspicion of murder, subsequently charged with causing grievous bodily harm with intent and detained overnight after charge. The prosecution was later discontinued.

He claimed damages for false imprisonment and malicious prosecution. At the conclusion of a jury trial, Judge Heppel QC held that no factual issues remained for the jury and entered judgment for the Chief Constable.

The claimant appealed. He contended that evidence of an ulterior police motive should have been left to the jury when determining the good faith of his arrest, the police’s honest belief when charging him, and the lawfulness of his continued detention.

1. Appeal allowed and retrial ordered. Brooke LJ, with whom Chadwick and Maurice Kay LJJ agreed, held that the judge had wrongly withdrawn material factual issues from the jury.

2. A proven detention must be justified throughout its duration. Section 24(6) of the Police and Criminal Evidence Act 1984 conferred a discretion to arrest, rather than a duty. That discretion belonged to the arresting officer, had to be exercised in good faith and was reviewable on ordinary administrative law principles. The court’s scrutiny had to reflect the importance of the right to liberty.

3. Although the police had reasonable grounds to suspect the claimant of murder, that did not determine whether the discretion to arrest had been exercised in good faith. He had attended voluntarily and was willing to cooperate. The police could have interviewed him under caution and arrested him later if necessary. Evidence concerning the prior instruction to arrest him immediately, the absence of evidence from the arresting officer and the surrounding police conduct was capable of supporting the alleged improper motive. The jury should therefore have decided the good-faith issue.

4. Under Glinski v McIver [1962] AC 726, absence of reasonable and probable cause has objective and subjective elements. The judge decides whether the circumstances reasonably justified belief in guilt. Where sufficient evidence supports the claimant’s case, the jury decides what facts the prosecutor honestly believed and whether the prosecutor honestly believed in the accused’s guilt. Malice and want of reasonable and probable cause may be proved circumstantially.

5. Evidence concerning self-defence, the CCTV recording, a supportive witness, the absence of prior prosecutorial advice and the police treatment of exculpatory material was capable of supporting a finding that the police did not honestly believe the assault was unlawful. The police’s motive for charging the claimant was therefore a matter for the jury.

6. The judge also misinterpreted the recorded basis for post-charge detention under section 38(1)(a)(vi) of the Police and Criminal Evidence Act 1984. The stated ground was the claimant’s own protection. Whether the custody sergeant acted in good faith without discussing safer alternatives with the claimant or his solicitor was likewise for the jury.

1. Court of Appeal (Civil Division): The appeal was allowed. The judgment entered for the defendant was set aside and the action was remitted to Kingston upon Hull County Court for retrial before a judge and jury: [2004] EWCA Civ 308.

2. Kingston upon Hull County Court: Judge Heppel QC withdrew the disputed issues from the jury and directed that judgment be entered for the defendant.