Parker v The Chief Constable of Essex Police

A person unlawfully arrested because the arresting officer lacked the personally required grounds is entitled only to nominal damages where a lawful arrest would have occurred had the police appreciated and followed the correct procedure. The counterfactual assumes compliance with the procedural requirement. It does not ask merely what would have happened if the particular officer had refrained from arrest.

Reasonable suspicion is a low threshold. The court must assess the available information cumulatively rather than dismantling each item in isolation. Arrest may be reasonably believed necessary for a prompt and effective investigation where simultaneous arrests, coordinated interviews, prevention of collusion and preservation of surprise serve legitimate operational objectives.

The claimant was arrested on suspicion of rape and murder during a reinvestigation into the death of a guest at his home. The Chief Constable admitted that the arrest was unlawful because the arresting officer lacked the personal grounds required by section 24 of the Police and Criminal Evidence Act 1984.

Following the trial of a preliminary issue, Stuart-Smith J held in [2017] EWHC 2140 (QB) that a properly informed officer could lawfully have arrested the claimant. He nevertheless held that substantial damages were available because, absent the actual arrest, another insufficiently briefed surveillance officer would have made an equally unlawful arrest.

The Chief Constable appealed on the proper counterfactual for assessing damages. By a respondent’s notice, the claimant contended that no officer could lawfully have arrested him because reasonable grounds for suspicion and necessity were absent.

1. Appeal allowed. The claimant was entitled to nominal damages only. The counterfactual required by R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23 and Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79 asks what would have happened had matters been done lawfully. It does not ask simply what would have happened if the particular tortfeasor had omitted the arrest.

2. The counterfactual distinguishes the substantive grounds for detention from the procedure by which detention is effected. Procedural failures render detention unlawful, but do not themselves justify substantial compensatory damages where lawful compliance would have produced the same detention. Here, had the responsible officers appreciated the personal-ground requirement derived from O’Hara v Royal Ulster Constabulary [1997] AC 28, the arrest would have awaited the properly informed officer or that officer would have adequately briefed an officer at the scene.

3. The High Court correctly found reasonable grounds to suspect the claimant. The threshold under section 24(2) of the Police and Criminal Evidence Act 1984 is low, and all relevant material must be considered cumulatively. Even after weak material was removed or downgraded, the evidence showed a severe assault, probably anal rape, and that the claimant was one of only three men who could have been responsible. Those facts alone provided reasonable grounds.

4. The High Court also correctly found reasonable grounds to believe that arrest was necessary for a prompt and effective investigation under sections 24(4) and 24(5)(e). Simultaneous arrests could preserve surprise, reduce the risk of collusion and permit coordinated interviews. Treating the claimant as a suspect for the first time materially changed the investigation and created risks that had not arisen while he was treated as a witness.

5. The respondent’s notice was rejected. The court declared that the claimant was entitled to nominal damages only. Hallett LJ and Sir Ernest Ryder SPT agreed with Sir Brian Leveson P.

1. Court of Appeal (Civil Division): Allowed the Chief Constable’s appeal, rejected the respondent’s notice and declared that the claimant was entitled to nominal damages only: [2018] EWCA Civ 2788.
2. High Court, Queen’s Bench Division: Stuart-Smith J held that a properly informed officer could lawfully have arrested the claimant, but awarded substantial damages because another insufficiently briefed officer would otherwise have made an unlawful arrest: [2017] EWHC 2140 (QB).
3. Master: Master Eastman ordered the trial of the preliminary issue whether the claimant could and would lawfully have been arrested and was consequently entitled only to nominal damages.