Khadine v Commissioner of Police for the Metropolis

In a claim for unlawful arrest, the court separates the arresting officer’s subjective suspicion, the objective existence of reasonable cause, and the proper exercise of the arrest discretion. The judge decides the objective question, even where facts may need to be found by a jury.

A judge may rule without a jury where undisputed events objectively establish reasonable and probable cause. The issue of actual belief should reach the jury only on cogent evidence that the officer did not hold the belief which the circumstances justified; a claimant’s mere challenge is insufficient. Investigative incompetence does not, without more, establish dishonesty, improper motive or collusion.

The appellant, formerly a mini-cab driver, claimed damages against the Metropolitan Commissioner of Police for unlawful arrest, malicious prosecution, misfeasance in public office, negligence and racial discrimination. The claims arose from his arrest and charge for assault after he and two passengers made cross-allegations following an incident involving a taxi journey.

The Crown Prosecution Service later discontinued the prosecution. After a civil trial, Grigson J discharged the jury and entered judgment for the respondent, holding that the disputed matters could not establish a prima facie case of unlawful conduct. Permission to appeal was refused. The central issue before the Court of Appeal was whether the judge had wrongly withdrawn questions of honesty, malice and reasonable cause from the jury, and whether his procedural rulings demonstrated bias or an unfair hearing.

Application dismissed. Lord Justice Potter held that the appellant had no realistic prospect of overturning the decision of Grigson J.

1. The applicable approach to unlawful arrest involved three questions, identified in Castorina v The Chief Constable of Surrey, The Times 15 June 1988: whether the arresting officer suspected that the arrested person was guilty; whether there was objectively reasonable cause for that suspicion; and, if so, whether the arrest discretion was exercised in accordance with the principles in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, [1948] 1 KB 223.
2. Although an officer’s actual belief will ordinarily be a question for the jury, the judge need not leave that issue where the undisputed facts objectively establish reasonable and probable cause. Only cogent evidence that the officer did not hold the belief which he was objectively entitled to hold could justify leaving the issue to the jury. Mere challenge in cross-examination does not create a conflict of evidence. The court applied the approach summarised from Dallison v Caffery, [1965] 1 QB 348.
3. The arresting officer had witness statements from the two women, photographs of injury and his own observation of injury. That was ample material for a genuine suspicion that the appellant had assaulted them. There was no evidence that the officer acted from racist motives or to protect a police officer’s wife. The police investigation had been inefficient, including failures to link the complaints promptly, but those failings did not establish dishonesty, improper motive or collusion in the arrest or charge.
4. The judge was entitled to exclude observations made by Collins J in separate judicial-review proceedings. Those observations were not probative of the civil allegations because that judge had not been directly deciding those issues between the relevant parties. The judge’s intervention in questioning DI Heckles concerned inadmissible opinion evidence about the propriety of another officer’s conduct and did not demonstrate bias or breach of Article 6(1) ECHR.
5. Although it was arguable that the judge had exercised his discretion under the Rehabilitation of Offenders Act 1974 unreasonably in relation to a spent conviction, any error could not assist the appellant because the issue had not been left to the jury. There was likewise no realistic prospect of success in the claims for negligence, misfeasance in public office or racial discrimination.

• Court of Appeal (Civil Division): On 4 March 2005, Lord Justice Potter dismissed the application for permission to appeal. [2005] EWCA Civ 196
• High Court (Queen’s Bench Division): On 22 October 2004, Grigson J discharged the jury and ordered judgment for the respondent. Permission to appeal was refused.