Buike v Chief Constable of West Yorkshire

An application for permission under section 329 of the Criminal Justice Act 2003 should be approached like an application for reverse summary judgment. The claimant must show a real prospect of establishing either that the defendant lacked the honest belief required by section 329(5), or that the defendant’s act was grossly disproportionate.

The application must not become a mini-trial. The defendant’s state of mind may ordinarily be proved by inference from the act itself and its surrounding circumstances. Once the claim has a real prospect of success, the court has no residual discretion to refuse permission.

The claimant sought permission under section 329 of the Criminal Justice Act 2003 to sue the Chief Constable for assault arising from his arrest during a ram-raid burglary. CCTV footage appeared to show a police officer kicking and stamping on him while he was on the ground and being restrained by a police dog. The officer denied kicking him and said that he had been trying to restrain his arm.

A district judge refused permission. His Honour Judge Grenfell dismissed the claimant’s appeal, finding insufficient evidence that the officer lacked the required honest belief or had used grossly disproportionate force. The claimant appealed to the Court of Appeal. The central issue was whether the evidence gave the claim a real prospect of satisfying either statutory route to permission.

1. The appeal was allowed unanimously. The claimant had crossed the statutory threshold for permission under section 329 of the Criminal Justice Act 2003. The CCTV evidence provided an arguable basis for concluding that the officer did not believe the apparent kicks were necessary to apprehend the claimant or protect himself or other officers.

2. On a section 329 permission application, the claimant must show a real prospect that the court will conclude either that the condition in subsection (5) was absent or that the defendant’s act was grossly disproportionate. This resembles the approach to reverse summary judgment under rule 24.2 of the Civil Procedure Rules. The application must not become a mini-trial.

3. His Honour Judge Grenfell had gone too far by deciding that the officer was doing what he honestly believed necessary. That was a fact-finding exercise unsuitable for the permission stage. The footage appeared to show several kicks and stamping movements. The officer’s denial that he had kicked the claimant also raised an arguable issue about what he was actually attempting to do, which could properly require oral evidence and cross-examination.

4. Section 329 places an unusual evidential burden on a claimant because primary evidence of the defendant’s state of mind will ordinarily be available only from the defendant. To make the provision workable, the claimant may point to the defendant’s conduct and invite the inference that the defendant could not have believed it necessary for a purpose specified in subsection (5).

5. The court did not decide whether the apparent force was grossly disproportionate. That issue would arise only on the hypothetical premise that the required honest belief could not realistically be disputed. The officer’s belief would instead have to be explored at trial. The court expressed no view on the claim’s ultimate merits or the damages recoverable.

1. Court of Appeal (Civil Division): By [2009] EWCA Civ 971, unanimously allowed the claimant’s appeal and granted permission for the claim to proceed.
2. County Court, His Honour Judge Grenfell: On 10 February 2009, dismissed the claimant’s appeal from the district judge’s refusal of permission.
3. County Court, District Judge Lentworth: On 13 November 2008, refused permission to bring the claim under section 329 of the Criminal Justice Act 2003.