Pal v Commissioner of the Police for the Metropolis

An appellate court should not rehear the evidence or substitute its own view for that of the trial judge. Intervention is justified only for an error of principle, a material failure to consider relevant matters, or a conclusion that is plainly wrong. For an arrest based on suspected harassment, the arresting officer must have an honest suspicion, objectively justified by the available material, that the offence was committed by the person arrested and that arrest was necessary. Speech and publication can constitute harassment, but the assessment must balance the statutory threshold of oppressive and unacceptable conduct with the qualified freedom of expression under Article 10. A lawful arrest, supported by reasonable and probable cause, did not breach Article 10 on these facts. An assault claim consequential on an unlawful arrest therefore failed.

The claimant appealed from the dismissal by His Honour Judge Freeland QC in the County Court at Central London of claims arising from her arrest, detention, charge and prosecution for harassment under section 2 of the Protection from Harassment Act 1997. The criminal proceedings were later discontinued.

Permission to appeal was granted on three limited issues: whether the arrest was unlawful; whether the arrest breached Article 10 of the ECHR; and whether the related assault claim succeeded. The central questions were whether the arresting officer had an objectively justified suspicion and whether the trial judge had applied the correct appellate and legal tests.

1. Appeal dismissed. The trial judge was entitled to find that the arrest was lawful, that there was no actionable Article 10 breach, and that the assault claim consequently failed.
2. The appellate court was not conducting a rehearing. Under AEI Rediffusion Music Ltd v Phonographic Performance Ltd [1999] 1 WLR 1507 and Lewis v Narayanasamy [2017] EWCA Civ 229, intervention required an error of principle, a material failure to consider a relevant matter, or a plainly wrong factual conclusion.
3. The arresting officer’s honest subjective suspicion was accepted. The objective justification was assessed by reference to the article, tweets, the complainant’s written material and the police investigation record. The trial judge was entitled to conclude that the material objectively supported a suspicion of harassment and that arrest was objectively necessary.
4. Speech fell within the statutory concept of conduct. The court had to apply the threshold of oppressive and unacceptable conduct, identified in Majrowski v Guys and St Thomas’ NHS Trust [2006] UKHL 34, [2007] 1 AC 224, and Hayes v Willoughby [2013] UKSC 17, while taking care to give proper weight to Article 10 in publication cases, as explained in Hourani v Alistair Thomson [2017] EWHC 432.
5. Article 10 remained relevant to the objective assessment. The evidence supported the finding that the arresting officer had considered the appellant’s Article 10 rights. Once the arrest was found lawful and based on reasonable and probable cause, the arrest did not constitute an Article 10 breach. The temporary bail restriction was proportionate pending the magistrates’ court’s decision.
6. The assault ground depended on establishing an unlawful arrest. It therefore failed. The use of handcuffs was not advanced as a freestanding ground.

• High Court (Queen’s Bench Division): Pal v Commissioner of the Police for the Metropolis [2018] EWHC 2988 (QB) dismissed the appeal from the County Court’s dismissal of the claims.
• County Court at Central London: His Honour Judge Freeland QC dismissed the claimant’s claims on 23 January 2018. The judgment citation was not stated in the judgment.