A cautionary tale
Emelia Bezant-Gahan examines the implications of a case law review of Fittschen v Chief Constable of Dorset  EWHC 399 (QB).
A claimant was entitled to substantial rather than nominal damages in a claim arising out of his arrest contrary to s.52 of the Sexual Offences Act 2003. While the investigating officer had honestly suspected the claimant of committing offences, the decision to arrest was not one which, objectively reviewed afterwards according to the information known to the officer at the time, had been made on reasonable grounds owing to an inadequate briefing.
On June 20, 2017, the claimant was arrested by officers for offences contrary to the Sexual Offences Act 2003 (SOA 2003) specifically section 52 – causing or inciting someone to become a prostitute for gain. He was released 19 hours later under investigation and subsequently he was notified that no further police action would be taken against him.
He sued the defendant for damages for false imprisonment, and also for a declaration that his rights under Articles 5 and 8 of the European Convention on Human Rights had been infringed and consideration of whether damages amount to just satisfaction.
The claimant argued that substantial damages should be awarded.
The defendant admitted that the claimant’s arrest was procedurally unlawful, on the basis that the arresting officer was not properly briefed. The defendant submitted that, had the proper procedure been followed, the claimant would still have been arrested, and therefore he should only receive nominal damages under the principles set out in Parker v Chief Constable of Essex Police. That issue was to be determined by the court.
The court found for the claimant and awarded substantial damages. The findings were as follows.
- In a claim for false imprisonment where detention was admitted, the person responsible for the detention had to justify it. Under section 24 of the Police and Criminal Evidence Act 1984 (PACE) a police officer had to have reasonable grounds for suspecting that an offence had been committed. The suspicion had to be in the mind of the arresting officer: the arresting officer could rely on information provided by another officer, but they could not simply rely on an instruction to make an arrest following O’Hara. Where Parker was relied upon to limit a claim to nominal damages, the test was not what would have happened if the arrest had not been made by the arresting officer, but what would have happened if the proper procedure had been followed and the arresting officer had been properly briefed. Proper briefing would ensure that the arresting officer had all the relevant information known to the officer actually making the decision that the arrest should take place.
- In general, it should be assumed that the arresting officer on that counterfactual hypothesis would have come to the same conclusion as the officer making the actual decision, and for the same reasons. Accordingly, if a decision was made to arrest someone for an offence which it was not reasonable to suspect had been committed, but there was another offence which it was reasonable on the same information to suspect had been committed, the Parker principle could not be used to substitute one offence for the other.
- Parker prevented mere procedural errors from leading to substantial damages. It did not cure errors of substance.
- The necessity test in s.24(5) of PACE was a two-stage one: the police officer had to actually believe that the arrest was necessary, and the officer’s decision had to be one which, objectively reviewed afterwards according to the information known to him at the time, had been made on reasonable grounds. The second stage of the necessity test, requiring objective reasonableness, applied equally to the test of suspicion (see paras 4-15 of judgment).
- The claimant did not suggest that the investigating officer had not honestly suspected him of committing an offence under s.52 or s.53 (SOA 2003). The only issue in relation to suspicion was whether it was objectively reasonable. The investigating officer’s dominant reason for suspecting that the claimant was involved in controlling the woman as a prostitute, or even being involved in trafficking her from Romania, was that he was German and that he had also arrived in the UK from Germany about two weeks after the Romanians. The decision to arrest was not one which, objectively reviewed afterwards according to the information known to the investigating officer at the time, had been made on reasonable grounds. The investigating officer had acted on a speculative hunch rather than reasonable grounds for suspicion, and his hunch was not proved right. It followed that the claimant was entitled to substantial rather than just nominal damages (paras 60-62, 67).
Necessity of arrest
- For completeness the judge considered the position if he was wrong about the reasonableness of the suspicion. It was not disputed that the officer honestly believed that an arrest was necessary. The remaining issue would be whether there were reasonable grounds to believe that an arrest was necessary. For this the judge held he must assume, contrary to his findings above, that there were reasonable grounds to suspect that the claimant was involved in controlling the woman as a prostitute.
- If there had been reasonable grounds for suspicion, there would also have been reasonable grounds to believe that the arrest was necessary on the basis that (a) the suspected victim was vulnerable, the claimant had her contact details, and there was a real risk to her and/or the inquiry from such contact; (b) the two Romanian men were already in custody, and prompt and effective investigation required that all suspects should be interviewed at about the same time; and (c) the claimant was planning to leave the UK imminently, and there was a real risk that he would not return (paras 65-66).
- The judge would therefore have held, if there had been reasonable grounds for suspicion, that there were also reasonable grounds to believe that the arrest was necessary.
Human rights component
- The court held that the Human Rights Act claim added nothing. Stating that the claimant did not need a declaration when he has a judgment. The court see no possibility of “just satisfaction” going beyond the claim for damages, especially where that claim is pleaded to include both aggravated and exemplary damages. The judge further observed that the prayer in the Particulars of Claim did not include a declaration of breach of human rights, nor one for damages or compensation by way of “just satisfaction”. Accordingly, the judge declined to exercise their discretion to grant any relief under this head.
With Parker now arguably the most cited and recognised police law authority this case is one of interest and note for all police law practitioners. It is acknowledged that the matter is only a Queen’s Bench decision, but it raises some important issues.
In this case the defendant had already conceded liability for the false imprisonment claim arising out of admitted procedural errors in the arrest which rendered it unlawful. They challenged quantum on the basis that only nominal damages should apply under Parker as the claimant would have been arrested lawfully in any event. It is noted that the defendant was successful in denying that any award under the Human Rights Act should apply.
The judgment of this case reads as a somewhat cautionary tale for forces as to how influential the early stages of building a case pre-arrest, with particular emphasis on briefings, can be on subsequent litigation
The claimant was only arrested for an offence under section 52 of the SOA 2003. The SIO had in their mind offences under both sections 52 and 53 in relation to controlling prostitution for gain. The judge found that it was correct, when applying Parker, to look at the reasoning made by the officer who made the decision to arrest, and to assume that the arresting officer would have come to the same conclusion and for the same reasons. On that basis, what mattered was what the SIO had intended, not what the arresting officer did.
Despite the SIO’s diligent recording of his decision and the court accepting that his belief the claimant had been dishonest with police, his genuine suspicion was not deemed to have been reasonable. The court held that there were insufficient grounds to provide that the claimant was involved in controlling prostitution for gain as opposed to being “something more than an embarrassed client of a prostitute”.
Importantly, it was held that if there had been reasonable grounds for suspicion the belief that the claimant’s arrest was necessary was reasonable.
The matter will be listed for a quantum trial and it will be interesting for practitioners to note whether it does indeed reach trial what the applicable “substantial” damages would be calculated at. In the age of significant costs exposure, lengthy waits for listing and the costs of a liability trial already having been incurred, it is of course possible that the matter will settle before any hearing.
Police forces looking to make arguments on quantum in line with Parker should carefully consider the briefing given to the arresting officer at the outset of the case and consider not just what they did but what the SIO intended. In any event, the judgment of this case reads as a somewhat cautionary tale for forces as to how influential the early stages of building a case pre-arrest, with particular emphasis on briefings, can be on subsequent litigation.
Emelia Bezant-Gahan is a solicitor in the Public Sector practice at Plexus Law.