Faniyan v The Commissioner of Police for the Metropolis

On a renewed application for permission to appeal, the Court of Appeal confirmed that it will not ordinarily interfere with clear factual findings made by a trial judge who heard the witnesses. A proposed legal ground has no real prospect of success where the statutory provision relied on does not bear the suggested meaning. Under the Road Traffic Act 1988, the obligation to provide a driver’s name and address is distinct from the obligation to produce specified documents. The qualification concerning conviction for failure to produce documents does not apply to failure to provide identity information. A point not argued at trial will generally not be permitted on appeal without good reason, particularly where it is unmeritorious.

The appellant brought claims for false imprisonment, assault and battery, and malicious prosecution arising from his arrest, detention and prosecution following a roadside traffic stop. The Central London County Court dismissed the claims after a two-day trial and refused permission to appeal. The appellant sought permission to challenge factual findings concerning an HO/RT1 form, the lawfulness of his arrest for failing to provide his name and address, and his further arrest on suspicion of immigration offences. The central issues were whether those proposed grounds had a real prospect of success and whether the immigration point, which had not been argued below, should be admitted on appeal.

1. Permission refused. The proposed challenge to the trial judge’s findings about when and where the HO/RT1 form was issued had no real prospect of success. The trial judge had heard the witnesses, made clear findings, and given reasons. The Court of Appeal would not interfere with those findings on the proposed appeal.

2. The statutory argument concerning the traffic arrest was unarguable. Sections 165(1) and (3) of the Road Traffic Act 1988 made failure to comply with a constable’s request for the driver’s name and address an offence. The qualification in section 165(4) concerned only the section 165(1) obligation to produce documents of the kind described in section 165(2). It did not qualify the separate obligation to provide the driver’s name and address. The arrest was therefore not shown to have been unlawful on that basis.

3. The proposed challenge to the further immigration arrest had not been advanced at trial. There was no good reason to permit the appellant to raise it for the first time on appeal, particularly since it was not reasonably arguable. The arresting officer was not purporting to exercise the power under section 4 of the Immigration Act 1971 to determine or vary immigration status. The court was not persuaded that the officer could not lawfully exercise the arrest power under section 28A(1)(b).

• Court of Appeal (Civil Division): On 3 April 2012, Lord Justice Rimer refused the renewed application for permission to appeal: [2012] EWCA Civ 411.
• Central London County Court: His Honour Judge Hand QC dismissed the claims for false imprisonment, assault and battery, and malicious prosecution, ordered costs, and refused permission to appeal on 9 June 2011.
• On the papers: Dame Janet Smith granted a short extension of time but refused permission to appeal on 18 October 2011.