B e f o r e :
LORD JUSTICE BALCOMBE
LORD JUSTICE TAYLOR
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ELIZABETH ANN LEWIS and RACHEL ANN EVANS
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Appellants
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v.
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THE CHIEF CONSTABLE OF THE SOUTH WALES CONSTABULARY
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Respondent
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(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters Limited, Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London, WC2A 3RU.)
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MR. G. JONES (instructed by Messrs. J. Gareth Miller & Co., Maesteg, Mid Glamorgan) appeared for the Appellants (Plaintiffs).
MR. I. MURPHY (instructed by Messrs. Dolmans, Cardiff) appeared for the Respondent (Defendant).
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LORD JUSTICE BALCOMBE: This is an appeal with the leave of the judge from a ruling given by His Honour Judge Norman Francis on 5th October 1989, sitting with a jury in the Bridgend County Court in the course of actions for wrongful arrest and false imprisonment.
In order to understand that ruling and the grounds of the appeal I must give the relevant facts. On 8th September 1987 Detective Constable Parry of the South Wales Constabulary arrested the two plaintiffs, Miss Lewis and Mrs. Evans, who in fact are sisters, on suspicion of burglary. The judge in due course held that the officer had had reasonable grounds for that suspicion. The plaintiffs were travelling at the time of their arrest in a car which had been stopped by Detective Constable Parry. The jury found as a fact that the plaintiffs were not then told why they were being arrested. They were then taken to the police station and were subsequently presented to the custody officer. It was then, so the jury found, that they were told the reasons why they were being arrested, although it is right to say that there was no express finding that it was by the custody officer that they were given the reasons.
In the case of Miss Lewis they held that she was told the reasons for her arrest 10 minutes after the time of her arrest. In the case of Mrs. Evans it was some 23 minutes later. Some five hours later they were both released from custody.
Subsequently they sued the Chief Constable of South Wales for false arrest and wrongful imprisonment. The judge ruled that, although their initial arrest was unlawful because they had not then been given the reasons for that arrest, it ceased to be unlawful when they were given reasons at the time of their presentation to the custody officer and that they had been unlawfully detained for only 10 and 23 minutes respectively. They were each awarded £200 by way of damages. They contend that what started as an unlawful arrest never became lawful and that they should be compensated for the whole of the five hour period of their detention.
That is the ground of the plaintiffs' appeal. There is a respondent's notice that the finding of the jury that the plaintiffs had been arrested in the car (which was not their case but was the police case) but had not been told of the reasons until some time later at the police station (whereas the police officer had said that he told them the reasons for their arrest at the time he arrested them in the car) was - and I here put it in my own words but I do not think it does any injustice to the respondent's case - perverse in that the jury accepted a part of the police evidence and not the remainder, and rejected the plaintiffs' own evidence about the place and time of their arrest and their own evidence as to when they were given reasons.
It will be convenient to deal with the respondent's notice in detail later in this judgment. So far as the appeal itself is concerned, this turns on section 28, in particular subsections 1 and 3, of the Police and Criminal Evidence Act 1984. Those subsections read as follows:
"(1) Subject to subsection (5) below, where a person is arrested, otherwise than by being informed that he is under arrest, the arrest is not lawful unless the person arrested is informed that he is under arrest as soon as is practicable after his arrest."
I pause there to say that nothing directly in this case turns on that, it is common ground that the plaintiffs were told that they were under arrest at the moment of their arrest.
"(3) Subject to subsection (5) below, no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest."
Then I read subsection (5) for completeness, although the relevant matters do not arise in the context of this case"
"(5) Nothing in this section is to be taken to require a person to be informed -
(a) that he is under arrest; or
(b) of the ground for the arrest,
if it was not reasonably practicable for him to be so informed by reason of his having escaped from arrest before the information could be given".
There were other sections of the Act upon which Mr. Jones for the plaintiffs relies, and I will refer to them in due course.
It is accepted that the 1984 Act was not a codifying Act in the sense that it merely codified the previous law. It did undoubtedly introduce substantial changes on certain aspects of the previous law but, in relation to the question of what is an arrest, it is relevant to note that in the House of Lords case of Murray v. Ministry of Defence [1988] 1 WLR 692 Lord Griffiths, giving the leading speech, long after the coming into force of the 1984 Act, cited with approval certain definitions or statements from cases decided before that Act, making it clear that in his view they represented the current law at the time of that case. It is right, I think I should say, that in Murray v. Ministry of Defence, which was a case from Northern Ireland, the 1984 Act was not itself being directly considered, but nevertheless he cited those passages as representing the current law and, in my judgment, they do indeed still represent the current law. The ones to which I refer are two in number: first, Spicer v. Holt [1977] A.C. 987 where, at page 1,000, Viscount Dilhorne said:
"'Arrest' is an ordinary English word ... Whether or not a person has been arrested depends not on the legality of the arrest but on whether he has been deprived of his liberty to go where he pleases."
Then in Mohammed-Holgate v. Duke [1984] A.C. 437 Lord Diplock said at page 441:
"First, it should be noted that arrest is a continuing act; it starts with the arrester taking a person into his custody, (sc. by action or words restraining him from moving anywhere beyond the arrester's control), and it continues until the person so restrained is either released from custody or, having been brought before a magistrate, is remanded in custody by the magistrate's judicial act."
In my judgment, those definitions still remain good law in the light of the 1984 Act and make it clear that arrest is a matter of fact; it is not a legal concept (though it clearly has legal consequences) and is a continuing act. There is one other case to which I refer before coming to consider the effect of section 28(3) of the 1984 Act and that is the case of R. v. Kulynycz [1971] 1 Q.B. 367. I think it is right that I should read the headnote in full and then a passage from the argument and a particular passage from the judgment:
"The defendant, who was reasonably suspected of having committed drug offences, was arrested in Cambridge on suspicion of unspecified offences committed in King's Lynn and erroneously told that a warrant had been issued for his arrest. He was taken to a police station in Cambridge where he was told that the offences were "drug offences" and, later, that he had been arrested on suspicion of handling stolen drugs. He was charged at King's Lynn of handling stolen drugs but, before the justices, he was charged with unauthorised possession of drugs in "Cambridge and elsewhere", contrary to the Drugs (Prevention of Misuse) Act, 1964, and he was committed to Norfolk Quarter Sessions. The indictment preferred against the defendant contained three counts alleging offences of unlawful possession of drugs "at Cambridge". Before arraignment, the defence submitted that the court had no jurisdiction to try the defendant as the offences had not been committed in Norfolk and, since he had neither been apprehended nor was he in lawful custody in that county, section 11(1) of the Criminal Justice Act, 1925, did not apply. The deputy chairman ruled that the court had jurisdiction. The defendant was convicted.
On the defendant's appeal against convictions-Held, dismissing the appeal, (1) that the arrest for unspecified offences was unlawful as the defendant was entitled to know the act which gave rise to his arrest but he was not entitled to know whether he had been arrested on warrant or on reasonable suspicion of having committed an offence and, accordingly, the erroneous statement that a warrant had been issued did not make the arrest unlawful. (2) That the defendant was in lawful custody when he was informed in sufficient detail at the Cambridge police station of the act constituting the offences; that the lawfulness of the custody was not affected by the alteration in the nature of the charge and in the place where the offences had been committed and, therefore, quarter sessions had jurisdiction to try the offences by virtue of section 11(1) of the Criminal Justice Act, 1925. Christie v. Leachinsky [1947] AC 573 applied."
In the course of the argument Mr. Cheatle for the defendant submitted:
"The original arrest was unlawful, nothing could cure that arrest, the defendant was not in lawful custody and therefore could not be tried. Before he could be in lawful custody he would have to be freed and re-arrested."
That argument was dealt with by a strong Court of Appeal consisting of Lord Parker C.J., Lord Justice Phillimore and Mr. Justice Ashworth in the following passage from the judgment of the court given by Lord Parker C.J. at page 371 D:
"As I have said, Mr. Cheatle's argument is that, as the original arrest was unlawful, everything else that took place thereafter fell to the ground with the result that Norfolk Quarter Sessions had no jurisdiction to try the case.
This court is quite unable to accept that argument. As it seems to this court, the question here is whether this defendant at the time he was before the Norfolk Quarter Sessions was in lawful custody, and one asks oneself at what stage, if at all, did he become in lawful custody. On that point the court is quite clearly of opinion that when he was in the police station at Cambridge informed in sufficient detail by Police Constable Welham and then Police Constable Elliott, he was thereafter in lawful custody.
Mr. Cheatle says that before he could become in lawful custody he would have to be free, he would have to leave the police station and be re-arrested. The court is quite unable to accept that contention."
Mr. Jones, for whose able submissions before us I would like to pay tribute, put his case really in two ways. First, he says that, if at the moment of initial apprehension the arrest is unlawful, the act is a nullity.
I think I have already said enough to make it clear from the cases I have cited that, in my judgment, that contention is untenable. Arrest is a situation. It is a matter of fact, as was said in Spicer v. Holt. Whether a person has been arrested depends not on the legality of his arrest but on whether he has been deprived of his liberty to go where he pleases. There is no doubt that, on the facts of this case, these two ladies were deprived of their liberty at the moment that they were arrested in the car. That act clearly was not a nullity. If it had been, some of the remaining provisions of the 1984 Act, and I refer in particular to section 41 which limits the period in which a person may be detained without charge by reference to the time of the person's arrest, would appear to have no point of time from which the period in question runs.
His more substantive argument, it seems to me, was that, whatever may have been the law before the passing of the 1984 Act, the law was changed by that Act. He accepts that, if Kulynycz is still good law, then inevitably his appeal must fail.
I do not accept that submission. Simply as a matter of the language used, arrest, as I have already said, is defined as a continuing act. It starts with the action of taking a person into custody and, undoubtedly, under section 28(3) at that moment the person arrested should be informed of the ground of the arrest, either at that moment or as soon as is practicable after arrest and, if that is not so, that arrest, that taking into custody, is unlawful. But there is nothing in the section which provides what is the effect of the arrested person subsequently being given the reasons for the arrest. Now, clearly, a subsequent giving of the reasons cannot retrospectively make the period between the moment of arrest and the time for giving the reasons lawful, and no one suggests that it did. The question which this court has to decide, which is precisely the same as the court had to decide in Kulynycz, is this. What is the effect of telling a person, who was initially arrested without being told of the reasons for his arrest, those reasons at a later time? Kulynycz held that thereafter his custody became lawful and, in so far as I have already said that arrest is a continuing act and is the process of being kept in custody or deprived of liberty, it seems to me there is nothing inconsistent with the wording of section 28(3) to say that from that moment (when reasons are given) the arrest becomes lawful, or the continued deprivation of liberty becomes lawful, or the continued custody becomes lawful. Indeed, the contrary seems to me to be not merely a surprising, but an almost ridiculous, contention, that what the police officer should do in those circumstances is to tell the person concerned, "You are now free to go", and, the instant he says that, should place his hands immediately on that person's shoulder and say, "Now you are under arrest and you are arrested for", giving the reasons. It seems to me that Parliament cannot have intended such a farce had to be gone through, and it is sufficient if the police officer gives the reasons and then from that moment onwards the arrest is lawful.
That seems to me entirely consistent with section 31 of the 1984 Act, to which Mr. Jones also referred us. That section provides:
"Where -
(a) a person -
(i) has been arrested for an offence; and
(ii) is at a police station in consequence of that arrest;
and
(b) it appears to a constable that, if he were released from that arrest, he would be liable to arrest for some other offence,
he shall be arrested for that other offence."
In that section the words "he shall be arrested for that other offence" clearly does not mean taking the person into custody or depriving him of his liberty. By very definition of the section he has already been arrested and deprived of his liberty, but he can be arrested for the second offence, which seems to me clearly to contemplate doing no more than saying, "You are also being kept in custody for offence (b) as well as offence (a)". That is what arresting in section 31 seems to me to contemplate.
So, in my judgment, the learned judge here was quite right in the ruling he gave that, upon the jury's finding that these two ladies were deprived of their liberty, in one case for 10 minutes and in the other case for 23 minutes, before being given the reasons for their arrest, that is the period in respect of which they were entitled to sue and for which they were properly awarded damages. The appeal, therefore, in my judgment, should be dismissed.
I now come to consider the respondent's notice. In order to do that it is necessary to give a little more detail. The evidence of the two plaintiffs and of D.C. Parry differed in a number of respects. The two plaintiffs both said that they were not arrested in the police car, but when they were inside the police station. I quote from page 9 of the transcript where Mrs. Evans in chief is referring to D.C. Parry:
"When we got inside [the police station] he said "You're under arrest" to both of us. He did not say why"
Then she said she was in a room on her own for some 10 minutes and said:
"Then D.C. Parry came in - he said I was under arrest for burglary and doing cheque books."
Then to the like effect under cross-examination:
"When car was stopped, D.C. Parry did not immediately say he was arrestig us for burglary - only after we went into the police station ... he arrested me as soon as I went through police station door - but I was not told reason then ..."
Then she talks about the custody record being filled in in her presence. Miss Lewis also said that it was not in the car but in the police station that D.C. Parry said they were under arrest, and she said that the reason was given about five minutes after they were arrested. So their evidence was, putting it shortly, that they were arrested in the police station and they were given the reason for their arrest some 10 minutes and five minutes later respectively. D.C. Parry's evidence was that he both arrested these two ladies and gave them the reasons for their arrest in the motor car.
The judge, after summing up to the jury, rehearsed that evidence. I need not refer to it in detail, it was in effect what I have just said, the two differing stories. Then he said he was going to put six questions to the jury. I am now quoting from part of his directions to the jury:
"There are six questions but they are in three pairs, the same question in respect of each of the two Plaintiffs. The first one is whether the Plaintiff concerned was arrested when she was still in the car or when she went into the police station."
The answers to the first pair of questions which the jury gave when they first came back into court were as follows:
"Question 1 Rachel Evans arrested in car. Question 2 Elizabeth Lewis arrested in car."
That showed that on that issue the jury preferred the evidence of the police to that of the plaintiffs. I go back to the direction:
"The second pair [of questions], were they told the grounds for their arrest when they were arrested, as they should have been, or later, and if later how much later. We are only talking about 10 minutes or so in one case and 5 minutes in the other so its a very small matter."
When the jury first came back they were not agreed on either of those two questions.
"Then finally and perhaps very much most importantly in this case, did Detective Constable Parry suspect that Rachel Evans had been involved in the burglary on the 24th August when he arrested her?"
The answer to that in both cases was yes. Then the jury went out again and finally returned verdicts on questions 3 and 4 - that is the time between the arrest and the giving of the reason - 23 minutes in the case of Mrs. Evans and 10 minutes in the case of Miss Lewis.
Mr. Murphy for the defendants has shown, at any rate to my satisfaction, that there was no direct evidence before the jury which enabled them to reach those two figures of 10 minutes and 23 minutes, and he has also drawn our attention to the custody records in the case of each of these plaintiffs, which showed that they were each arrested at 12.25, and that in the case of Mrs. Evans the custody record was signed by her at 12.48 which, mathematically, is 23 minutes after the time of arrest, and in the case of Miss Lewis the custody regard was signed at 12.35, 10 minutes after the time of arrest. He invites us to infer - and, for my part, I am willing to do so - that the jury can only have reached those two figures not by accepting any evidence, because there was no evidence which they could accept, but by deciding that the ladies were told of the reasons for their arrest at the time they signed the custody record, and he rightly points out that there was no evidence from either side to that effect. He invites us therefore to say that in those circumstances the jury's verdict was really perverse – I repeat that that was not his word – because they have accepted part of the police constable's evidence, namely the place of arrest, but not the part where he says also he gave them at the same time the reasons for arrest. They have rejected both the plaintiffs' evidence as to the place of arrest and, although they have accepted the plaintiffs' evidence that they were told the reasons for their arrest at some time later than the time of arrest, they have rejected the plaintiffs' own evidence as to what that period of time was.
Mr. Murphy has referred us to the ruling of the House of Lords in Mechanical and General Inventions Company Limited and Lehwess v. Austin and the Austin Motor Company Limited [1935] A.C. 346, and the relevant passage from the headnote is as follows:
"When it is decided that a case is to be tried by a jury, that tribunal is the only judge of the facts, and no appellate tribunal can substitute its finding for that of the jury. The appellate Court has a revising function to see, first, whether there is any evidence in support of the issue found by the jury; and, secondly, whether the verdict can stand as being one which reasonable men might have come to."
Pausing there, I think I would have been prepared to say that, in relation to the answers to questions 3 and 4, the verdict of the jury could not stand as being one which reasonable men might have come to, because there was really no evidence at all which entitled them to find those two periods as being the times between the moments of arrest and the reasons being given for the arrests. The headnote then goes on:
"If on the latter question it is obvious that no verdict for the plaintiff on all the available evidence could be supported, the Court may save the waste of time in ordering a new trial, which could have only one result, by ordering the verdict and judgment to be entered for the defendant."
I find myself quite unable to say that any new trial could only have one result. A jury, properly directed, might have come to a number of conclusions on the evidence of this case. They might have accepted in toto the evidence of the police officers or they might have accepted in toto the evidence of the defendants; they could accept part of one and part of the other. I certainly find myself wholly unable to say that a jury, properly directed and properly applying their minds to the evidence, could not come to the conclusion here that there were intervals of time between the plaintiffs being arrested and their being given reasons for those arrests even though these intervals were not those which this particular jury found. It seems to me, therefore, that, if we were to accede to Mr. Murphy's submissions, the only course open to us would be to direct a new trial. Not surprisingly, on the sums involved in this case, that is the last thing that Mr. Murphy and his clients want. In those circumstances, it seems to me that, since we are not invited to direct a new trial, the judgment below will stand. Accordingly, I would dismiss this appeal.
LORD JUSTICE TAYLOR: I agree and there is nothing I can usefully add.
Order: Appeal dismissed with costs, order not to be enforced without leave of the court. Legal aid taxation of the appellants' costs. Leave to appeal to the House of Lords refused.
