Frugal v Nottinghamshire Police

In assessing whether an undercover police officer acted as an agent provocateur, the court focuses on the opportunity actually presented to the claimant. The officer must have enticed or lured the claimant, or done more than create an unexceptional opportunity. Conduct no more than might be expected from others in the circumstances is insufficient.

For false imprisonment, the respondent bears the burden of justifying an arrest by reasonable grounds. The arrest cannot rest on false evidence. Information is not false merely because the informant’s role is undisclosed, particularly where the arresting officer independently assesses the information and makes relevant observations.

The appellant was arrested after attending a school where protesters had gathered before a climate-change demonstration. The arresting officer relied on intelligence supplied by an undercover officer, whom the appellant alleged had acted as an agent provocateur and had provided false information.

The appellant brought a claim for false imprisonment. A Recorder rejected the claim, and HHJ Godsmark QC made an order on 24 April 2015. The appellant appealed to the Court of Appeal, alleging misdirection on agency, false imprisonment, and the lawfulness of the arrest. The central issues were whether the undercover officer had lured the appellant into the proposed offence and whether the arresting officer had reasonable grounds based on truthful information.

Appeal dismissed. The Court of Appeal upheld the Recorder’s conclusion that the arrest was lawful and that the undercover officer was not an agent provocateur.

1. Agent provocateur. The Recorder had relied on the correct ratio in R v Looseley (Attorney General’s Reference, No.3 of 2000) [2001] 1 WLR 2060. The relevant inquiry was whether the officer had enticed or lured the appellant into committing the offence, or had done more than create an unexceptional opportunity. The court was entitled to focus on the opportunity actually presented to the appellant, rather than opportunities that might have been presented to others generally.
2. The evidence showed that the appellant had travelled to Nottingham intending to participate in the protest and had become involved in planning before knowing of the undercover officer’s role. The officer had neither enticed nor lured him into the protest. The reassurance that the police had left was not the sole reason for the appellant remaining at the school. The Recorder was therefore entitled to find that the officer had done no more than might have been expected from others in the circumstances.
3. False imprisonment and reasonable grounds. Under Copeland v Commissioner of Police of the Metropolis [2014] EWCA Civ 1014, the respondent bore the burden of justifying the arrest by showing reasonable grounds and the absence of false evidence. That burden was discharged by the arresting officer’s independent assessment of what he saw and heard at the school.
4. The test identified in R(M) v Hackney LBC [2011] 1 WLR 2873 was applied, even though the Recorder had not cited the case. The undisclosed extent of the undercover officer’s role did not make the substance of the intelligence false. The arresting officer also relied on an earlier briefing and observed preparations for a break-in, giving him reasonable grounds to suspect conspiracy. There was no direct connection of the kind relied on in Hackney between the intelligence and an unlawful arrest. The Recorder’s conclusions were open to him and disclosed no error of law.

1. Court of Appeal (Civil Division): Appeal dismissed on 22 February 2017 [2017] EWCA Civ 86.
2. Nottingham County Court and Family Court: HHJ Godsmark QC made an order dated 24 April 2015 pursuant to the November 2014 judgment of Mr Recorder Willetts. The claim for false imprisonment was rejected.