Roberts v Chief Constable of Kent

Section 3(1) of the Criminal Law Act 1967 may justify force used in a civil claim for battery where the force was reasonable in the circumstances and used to prevent crime or effect or assist a lawful arrest. The defendant bears the burden of establishing the defence.

Reasonableness is assessed by the trial judge on all relevant circumstances, including the operational setting, the suspect’s conduct, the nature of the force and relevant expert evidence. An appellate court will not interfere where the judge considered relevant matters, excluded irrelevant matters and reached a conclusion open on the evidence. The deployment of a trained police dog to detain a fleeing suspect was reasonable on the facts.

Mr Roberts appealed from a judgment of HHJ Mitchell in the Canterbury County Court following a trial in November 2007. He claimed damages for injuries caused when a police dog was used during an attempt to arrest him for suspected driving with excess alcohol and failing or refusing to provide a breath specimen.

The judge found that the use of force was reasonable and dismissed the relevant claim. Permission to appeal was granted on the limited issue of reasonable force. The appeal concerned the use of the police dog, not the later use of CS gas or any negligence claim. The central issue was whether releasing the dog, including when Mr Roberts moved back towards his car, was lawful under section 3 of the Criminal Law Act 1967.

1. Disposition. The appeal was dismissed. Lord Justice Aikens gave the judgment, with Lord Justices Jackson and Ward agreeing.
2. Statutory defence. The claim was properly treated as one for trespass to the person, specifically battery. Section 3(2) of the Criminal Law Act 1967 replaced the previous common law rules. Under section 3(1), force may be justified in a civil battery claim where it is reasonable in the circumstances and used to prevent crime or effect or assist the lawful arrest of an offender or suspected offender. The defendant bears the burden of proving the defence. The court relied on the principle recognised in Farrell v Secretary of State for Defence [1980] 1 WLR 172.
3. Assessment of reasonableness. The question is whether the force was reasonable in the circumstances facing the officer. The trial judge must take relevant factors into account and exclude irrelevant ones. The appellant relied on Pollard v Chief Constable of West Yorkshire Police EWCA Civ 732 for the need for force to be reasonable and proportionate, but the Court of Appeal found no flaw in the judge’s approach. The judge was entitled to accept the expert dog-handlers’ evidence, including their agreement that the initial deployment and continued pursuit were appropriate and that the dog acted in accordance with its training.
4. Application. On the accepted facts, releasing the dog when Mr Roberts ran from the rear of the car was reasonable. The later release when he moved back towards the car was also not reasonably arguable as unlawful, given the earlier events and the reasonableness of the initial deployment. The force was therefore justified under section 3(1).

• Court of Appeal (Civil Division) — On 17 December 2008, the court dismissed the appeal on the limited reasonable-force ground: [2008] EWCA Civ 1588.
• Canterbury County Court — HHJ Mitchell, following a trial in November 2007, held that the Chief Constable had established that the use of force was reasonable. Judgment was given on 16 November 2007.