Shittu v The Home Office

The common-law defence of necessity to assault and battery requires proof, on the balance of probabilities, that the defendant reasonably believed the intervention was necessary and that the intervention was reasonable in all the circumstances.

An appellate court should not interfere with credibility findings reached by a trial judge who evaluated the evidence, surrounding circumstances and probabilities, unless a clear error is shown.

Where force is used to protect a child from reasonably perceived imminent harm, the parent’s reasonableness in resisting removal is irrelevant. The court declined to define the force permissible merely to facilitate removal where no such risk exists.

Immigration officers attended Veronica Shittu’s home to detain and remove her and her children. The claimants accepted that the attempted removal was lawful but alleged that excessive force had been used against Veronica and her daughter Kenny, constituting assault and battery.

The Manchester County Court, after a four-and-a-half-day trial, dismissed the claims. The claimants appealed on grounds concerning the officers’ motive, the reasonableness and proportionality of the force, the trial judge’s treatment of passive resistance, and the adequacy of his findings.

The central issue was whether the officers reasonably believed that separating Kenny from her mother was necessary to protect Kenny from harm, and whether the force used was reasonable.

Appeal dismissed. Bean LJ delivered the judgment, with Underhill LJ and Asplin LJ agreeing.

1. The applicable common-law defence of necessity required the defendant to establish, on the balance of probabilities, that it reasonably believed the action was necessary and that the action taken was reasonable in all the circumstances. This formulation, derived from Ashley v Chief Constable of Sussex Police [2007] 1 WLR 398 and [2008] 1 AC 962, was accepted by both parties.
2. The trial judge was entitled to accept the officers’ evidence that the force was used to protect Kenny rather than to expedite removal. He had considered the operational timetable, the surrounding circumstances, inconsistencies in the officers’ accounts, and the competing evidence. His approach was consistent with the guidance in Armagas Ltd v Mundogas SA [1986] 1 AC 717 and Powell v Streatham Manor Nursing Home [1935] AC 243. The challenge was effectively a perversity challenge and was unsustainable.
3. The judge was entitled to find that Veronica had squeezed Kenny sufficiently tightly for the officers reasonably to perceive actual or impending harm, and that the force used to release Kenny was no greater than reasonably required. Grounds 1, 3, 4 and 5 therefore failed.
4. The reasonableness or legality of Veronica’s passive resistance to removal was irrelevant once the judge had found that the force was used to protect Kenny. The court declined to determine what force might be appropriate to separate an adult and child where there was no perceived imminent harm and the purpose was merely to facilitate removal.
5. Leave to pursue ground 3A was formally refused. The appeal was dismissed.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the Manchester County Court’s dismissal of the assault and battery claims: [2017] EWCA Civ 1748.
• Manchester County Court: His Honour Judge Armitage QC dismissed the claims following trial and a reserved judgment dated 10 April 2014.