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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Tomlinson & Anor v Hertfordshire Chief Constable [2001] EWCA Civ 461 (9 March 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/461.html Cite as: [2001] EWCA Civ 461

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Previte QC)

		Royal Courts of Justice Strand London WC2 Friday 9th March, 2001

1. LORD JUSTICE ALDOUS: I will ask Lord Justice Laws to give the first judgment.
2. LORD JUSTICE LAWS: This is a claimants' appeal against the order of His Honour Judge Previte QC made in the Central London County Court on 27th January 2000 when their claim was dismissed.
3. After some delay into which it is not now necessary to go, the trial judge refused permission to appeal to this court on 6th March 2000. However permission to appeal was granted by Latham LJ on 28th June 2000.
4. The appellants, Mr Tomlinson and Miss Beningfield, have appeared before us today in person and they have addressed the court with very great courtesy and restraint.
5. Their claim was brought against the Chief Constable of Hertfordshire for damages for wrongful arrest and assault. Aggravated and exemplary damages were pleaded on behalf of both claimants. An alleged campaign of harassment by officers of the respondent Chief Constable said to have been conducted after the date of the claimants' arrest was relied on to support the claim of exemplary damages.
6. The appeal is brought on three grounds which may be summarised in this way.

(1) The learned judge erred in excluding from the trial on liability the evidence of the claimants that in the five years following the alleged false imprisonment, members of the Hertfordshire Constabulary had harassed them.

(2) The learned judge was wrong in concluding that there were reasonable grounds for the arrest. Behind that complaint I should say lies the proposition that the judge should have left matters of fact for the jury's decision before concluding, as he did, that the arrest had in truth been lawful.

(3) It is said that the learned judge went wrong in the way which he explained to the jury the reasons he had entertained for concluding that there were reasonable grounds for the arrest. The point there being made is that what the judge said to the jury was prejudicial to the claimants' claim because it may have induced in the jury a belief that the police witnesses were credible, whereas their credibility was in question.

7. While there are certainly disputes in this case – indeed very bitter disputes, not least relating to what has been called this campaign of harassment – nevertheless there are certain core facts which as I understand it are not subject to any or any reasonable contention. They may be summarised in this way.
8. In the early hours of 30th June 1993 a man called Mark Sainty saw a dark estate car, possibly a Ford Granada, pull up in a lay-by opposite his premises. He saw a white man get out and walk in the direction of a caravan display area. He lost sight of the man for 2-3 minutes. He then saw him return carrying a pole which he described as being about three metres long. The man put the pole in the vehicle and then got into the passenger side. Mr Sainty took the vehicle registration number. He relayed a summary account of these events to the police and the registration number which he gave was recorded in a log as PO8 220Y.
9. About 10 minutes after this a dark Cortina estate car was stopped. Its true registration number was POA 220Y. The first claimant Mr Tomlinson was the passenger, the second claimant Miss Beningfield was the driver. In the car there was what may I think neutrally be described as a long metal object. It stretched from the front passenger footwell through the centre of the front seats to the back of the car. A message came over the police radio to the effect that the object being sought was in fact a stick about two foot long. The claimants explained their possession of the metal object to the satisfaction of an officer by name Sergeant Hudson. They said that it was a box for a blind and in due course they were allowed to go on their way on that occasion on 30th June.
10. At this stage however there had been no report of anything stolen from the caravan display area to which I have referred. Indeed it was on the next day, 1st July, that the sales manager of the caravan display area, whose name was Mr Fenton, discovered that an awning some three metres long had been wrenched off one of his caravan vehicles during the night of 29th/30th June. He duly reported this fact to the police.
11. I come then to 2nd July. On that day officers went to the claimants' home address. They there inspected the same car. They saw in it a long metal object which stretched from the front passenger footwell to the rear of the car. They arrested the claimants on suspicion of theft of the caravan awning. The claimants were detained by the police for something like six hours. They were then released on bail and at length they were not charged with the offence of theft at all.
12. It is useful just to notice at this stage that apart from anything else there was this dispute of fact at the trial: whether the object in the car on 2nd July 1993 was the same as the object that had been seen in the car two days before on 30th June. The claimants say it was the same, the officers that it was not.
13. I turn now to the first issue in the case, that relating to the allegations of a campaign of harassment which were made by the claimants. First I should read the re-amended Particulars of Claim, paragraphs 7 to 9, since that is where this material is referred to:

"7. Following the charging of the Defendants [that means the claimants] and their release on bail police officers on numerous occasions, particularised in the schedule appended hereto, without proper and reasonable cause harassed the Plaintiffs by calling at their premises, stopping their motor-car, stopping them in the street and in like ways interfering in their daily lives.

8. The aforesaid treatment has aggravated the gross affront to the Plaintiffs' personal dignity and integrity caused by the original incident on 3rd July 1993, for which aggravated damages should be awarded.

9. The Plaintiffs will rely upon the aforesaid incidents of harassment to demonstrate the oppressive, arbitrary and unconstitutional nature of the said conduct on 3rd July 1993, for which exemplary damages should be awarded."

14. I should say that the reference to 3rd July 1993 is because the police in fact went to the claimants' home at 12.45 in the morning, as it were late in the evening of 2nd July.
15. The schedule referred to in paragraph 7 is to be found at pages 25 to 32 of the bundle before us. It contains summaries of over 50 events said to have taken place between 4th July 1993 and 12th May 1998 inclusive. It is a litany of incidents in which police officers are alleged to have followed, to have stopped and to have arrested the claimants in varying circumstances and at varying times. The second claimant Miss Beningfield kept a diary of these events or some of them, perhaps all of them. The account in the schedule which of course I have read is supported by detailed witness statements signed by each claimant on 2nd June 1999. Those statements are the subject of an application to admit fresh evidence at this hearing.
16. It is not necessary to read out all of these details. Miss Beningfield and Mr Tomlinson will appreciate that I, and if I may say so I am sure my Lord, has read all of these allegations with very great care.
17. On 11th January 2000 it was submitted in the course of the trial on behalf of the respondent Chief Constable that evidence of these matters in the schedule should not be admitted to support the claimants' case on liability. After hearing argument upon this question, the learned trial judge said this:

"Well my ruling on the matter is that the matters set out in the schedule are admissible only in respect of the aggravated and exemplary damages and therefore it does seem to me the convenient best course is to postpone the calling of that evidence, those witnesses, until after the findings on liability."

18. The appellants say that this evidence summarised in the schedule demonstrates a campaign by police officers against them which should have been admitted because it was capable of casting doubt on the credibility and motives of the officers involved in the incident of 2nd July 1993.
19. I should at this stage indicate that it is very plain that the appellants feel extremely strongly about this matter. Miss Beningfield said she felt that she had lost years of her life. They had lost their good name in the place they live. One particular incident was especially upsetting because it took place very shortly after the death of Miss Beningfield's father. They both urged upon us that they had suffered very greatly at the hands of this police force over a sustained period of years.
20. I mention those matters so that it will be understood that we have had them very fully in mind. But the appellants for their part I am sure understand also that our task in this appeal is limited to decision of the question whether the judge's ruling, which I have just read, was erroneous in law. The respondent Chief Constable in a skeleton argument prepared by counsel puts the matter in this way:

"a) the Claimants' pleaded case limited the relevance of the evidence of harassment to the issue of aggravated and/or exemplary damages;

b) only one officer involved in the events of 30th June and 2nd July 1993, PC Hardyman, was involved in any other incident and that incident was two years later and related to an arrest which the Claimants accepted was lawful and which therefore could not support a claim of harassment in any event;"

21. I interpolate: I have looked into that so far as the papers permit. It seems to have been an episode said to have taken place on 23rd July 1995. So far as the facts can be ascertained the point being made by the respondent Chief Constable there seems to be correct.

"c) all the alleged incidents of harassment postdated 2nd July 1993;

d) given the facts stated in (b) and (c) above the evidence of harassment could not affect the credibility of the officers who gave evidence in respect of the events of 30th June and 2nd July 1993;

e) this trial was before a jury. It would have been quite impossible to direct the jury on the relevance of 55 other incidents without fully investigating whether those individual incidents were unlawful conduct on the part of the Defendant's officers. The learned judge properly used his inherent court management powers [the reference must be to case management powers] to control the way in which evidence was put before the Court;

f) If this matter were to be re-tried, CPR r.32.1 would lead to the learned judge making exactly the same ruling as was made by HHJ Previte."

22. I think it is helpful just to notice the terms of Rule 32.1. It provides as follows:

"Power of court to control evidence.

32.1(1). The court may control the evidence by giving directions as to-

(a) the issues on which it requires evidence;

(b) the nature of the evidence which it requires to decide those issues; and

(c) the way in which the evidence is to be placed before the court.

(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.

(3) The court may limit cross-examination."

23. It seems to me that of these points taken by the respondent the two that are of particular importance are that all the events complained of here postdate the matters giving rise to the claimants' causes of action in the claim, and secondly the pleaded case limited the relevance of these matters of harassment to the issue of damages.
24. It is to be borne in mind that the question for the court in this action was not whether the Hertfordshire police entertained generally some kind of animus or malign motive against these claimants. The question was very much narrower. It was whether the claim of assault and false arrest at the end of June/beginning of July 1993 had been made out. Particularly in relation to the claim of false arrest, the question was not in truth what were the police motives at all. The question was - and I shall come to it in dealing with second issue in a moment - whether the arresting officer entertained a suspicion based upon reasonable grounds that the claimants were guilty of the theft of the awning.
25. I do not consider that the evidence of all those later matters in the schedule could properly have gone in proof of the narrow issues raised in the claim in relation to which the claimants had to establish that their cause of action was made out.
26. I also take the view that the respondents are right to submit that exercising his case management power under CPR Part 32.1, had that been in play, the judge would have limited the evidence going to issues of liability in effect in the way in which this judge did.
27. I should say that there are some other points taken. Mr Tomlinson submits that since the judge admitted evidence of his previous convictions (including at least one matter which postdated 2nd July 1993) so in order to be even-handed he should have allowed the jury to hear the claimants' evidence of events after 2nd July 1993. But this I fear is not good logic. The previous convictions were properly admitted on an elementary basis because they went to the question of the first claimant's credit. The date of those convictions (whether before or after 2nd July 1993) mattered not for that purpose. The same is simply not true of the schedule evidence.
28. I should add that the judge correctly directed the jury concerning Mr Tomlinson's previous convictions in the summing-up:

"You have also been reminded of matters which have nothing to do with the events of June and July but may be relevant to your assessment of credibility in relation, first of all, to Dean Tomlinson, namely his numerous convictions for offences of dishonesty, some of which were committed in the early 1990s shortly before these incidents and one of which was in 1996, post-dating these incidents. Those matters are relevant only to the question of credibility. The fact that a claimant has convictions for offences of dishonesty does not mean that a jury must disbelieve him. It is simply something in his past that you are entitled to take into account if you think it right to do so and if it assists you on making up your minds about who is telling the truth."

29. So far as it went that was an impeccable direction upon the issue of Mr Tomlinson's credibility.
30. While I am dealing with complaints to the effect that the judge was not even-handed, I should mention another matter which concerned the appellants in the course of their addresses to us. That relates to the officer who is said to have been in charge of the operation on 2nd July, PC Binnee. The complaint is that whereas, as I have said, Mr Tomlinson's convictions were fair and square before the jury, the fact that PC Binnee got into trouble at some date or dates after 2nd July 1993 was not sufficiently referred to. Here too it is said there is a want of even-handedness.
31. Taking the matter shortly, it is apparent that a statement was obtained in the course of the trial to deal with the allegations that had been made against PC Binnee upon dates after 2nd July 1993. It appears that he resigned from the force on 14th March 1996. There is a statement by a Mr Lane (who I take to be a police officer) dated 24th January 2000 which is in part in these terms:

"... at the time he was allowed to resign, he was the subject of an investigation regarding criminal offences, and breaches of the police disciplinary regulations. In connection with this investigation 31 written notices had been issued to the officer in accordance with Regulation 7 of the Police Disciplinary Regulations. The allegations contained in these notices are summarised as follows:-

Nine allegations of Misuse of the Police National Computer ...

Two allegations of having a business interest, without the permission of the Chief Constable.

Two allegations of handling stolen goods; one allegation using a falsehood.

Five allegations involving a motor vehicle, in respect of the licensing, registration for use for a particular purpose and excise duty offences.

Four allegations amounting to a neglect of duty.

Two allegations of obtaining property by Criminal Deception.

One allegation of False Accounting.

Four allegations of corrupt or improper practice.

One allegation of Discreditable Conduct."

32. We are told by Miss Barton who has represented the Chief Constable today as she did before Judge Previte that counsel for the claimants cross-examined Mr Binnee about this list of allegations, and we accept that that was done. It appears that he was, as it was put in Mr Lane's statement, allowed to resign. It may be that these allegations were not further proceeded with. If they had resulted in disciplinary sanctions - to say nothing of criminal convictions - it is unthinkable that Mr Oliver of counsel would not have put such matters to the witness in the course of the trial.
33. Just briefly I should refer to what was said by the learned judge about Mr Binnee. In his ruling as to the lawfulness of the arrest to which I shall be coming in a moment, he said this in the presence of the jury:

"It is the fact that PC Binnee, who is no longer in the Police Force, was the subject of Police investigations regarding criminal offences of dishonesty and breaches of Police Disciplinary Regulations. Whilst those matters are relevant to PC Binnee's credibility, and his credibility is in question as to whether Dean Tomlinson's behaviour embarrassed the Police, his credibility is not in question as regards the information passed to him concerning theft from Bowers Garage premises."

34. Then finally in the summing-up immediately after the passage at page 18 in which the judge dealt with Mr Tomlinson's previous convictions, this further passage appears:

"Much the same goes for Constable Binnee, you have had a whole list of matters read out to you in the course of the evidence and by Mr Oliver to show that he is a dishonest man."

35. The judge then proceeded to record the submission made by Miss Barton about the matter.
36. In my judgment there is no basis upon which it could reasonably be said that the judge was acting other than in an even-handed way. It is very far from clear whether, even if there were any mismatch between his treatment of Mr Tomlinson's convictions and his treatment of the accusations against PC Binnee, that could have amounted to a reason to admit the evidence of the matters set out in the schedule. For the reasons I have given in this judgment the judge was right to exclude those matters.
37. I turn to the second issue. As I have explained, what is said under this head is that the judge was not entitled to conclude that PC Binnee had reasonable grounds for suspecting the appellants of theft without leaving issues as to PC Binnee's state of mind to the jury. It is settled law that in a case like this it is for the judge to decide whether the relevant officer entertained reasonable grounds for the arrest. But if there is a dispute of fact which has to be resolved before that issue can be decided, then the dispute should be put to the jury. The matter was addressed in the judgment of Diplock LJ (as he then was) in Dallison v Caffrey [1965] 1 QB 348, at 371G to 372G:

"Next as to procedure. In arresting, detaining or prosecuting a suspected felon a person is acting in furtherance of the administration of justice. It is a well-settled rule of procedure that the question whether in so doing he is acting reasonable is one to be decided by the judge. It may be that this rule reflects the judicial distrust of Jacobinism among juries at the formative period if this branch of English law; but it can at least be rationalised in the ground that a judge, by reason of his office and his experience, is better qualified than a juryman to determine what conduct is reasonable or unreasonable in furtherance of the administration of justice. In those days, however, the jury was the only tribunal which at common law was competent to determine disputed issues of fact. If there was conflicting evidence as to what had happened, that is, as to what the conduct of the defendant in fact was, the jury alone was competent to resolve the conflict. But when what had happened was established, whether by uncontradicted evidence or, in case of conflict, by the jury's finding of fact, it was for the judge to rule whether the defendant's conduct was reasonable or unreasonable. This is still the position today where an action for false imprisonment or malicious prosecution arising out of the arrest, detention or prosecution of a suspected felon is tried by judge and jury. It is for the judge to decide what facts given in evidence are relevant to the question of whether the defendant acted reasonably. It is thus for him to decide, in the event of a conflict of evidence, what finding of fact is relevant and requisite to enable him to decide the question. But a jury is entitled to base findings of fact only on the evidence called before it and, as in any other jury trial, it is for the judge in an action for false imprisonment or malicious prosecution to decide whether the evidence on a relevant matter does raise any issue of fact fit to be left to a jury. If there is no real conflict of evidence, there is no issue of fact calling for determination by the jury. This applies not only to issues of facts as to what happened, on which the judge has to base his determination whether the defendant acted reasonably, but also to the issue of fact whether the defendant acted honestly, which, if there is sufficient evidence to raise this issue, is one for the jury. (See Herniman v Smith.⁸) For the reasons already indicated, however, where there is a reasonable and probable cause for an arrest or prosecution, the judge should not leave this issue to the jury except in the highly unlikely event that there is cogent positive evidence that, despite the actual existence of reasonable and probable cause, the defendant himself did not believe that it existed: see Glinski v McIver.9"

38. The learned judge said this upon what I have called the second issue:

"In my judgment, based on the information which he had at the time of arresting Dean Tomlinson and Sally Beningfield, PC Binnee had ample grounds, and certainly reasonable grounds, for arresting Dean Tomlinson and Sally Beningfield on suspicion of theft of the blind and its container stolen from Bowers Garage on night of 30th June/1st July. The information which PC Binnee had came from Mr Sainty, Sergeant Hudson, and Mr Fenton. There is no basis for any suggestion that PC Binnee did not believe that information.

But it is alleged that the real motive for arresting Dean Tomlinson was that Dean Tomlinson was causing embarrassment to the Police because of the disturbance he was causing by shouting for a witness. Even if Dean Tomlinson was an embarrassment to the Police, and even if that embarrassment hastened on the actual arrest of Dean Tomlinson, it does not, in my view, in any way undermine the grounds for the arrest of Dean Tomlinson, nor does it undermine the grounds for arresting Sally Beningfield."

39. I interpolate: there follows the paragraph about the allegations concerning PC Binnee which I have already read. The next paragraph is in these terms:

"I accept that on the night when the blind and its container were stolen and the Cortina car was stopped, there was confusion between the Police Officers as to what it was that had been stolen, and that subsequent descriptions of what had been stolen and then what was seen in the car when it was in Grange Street and subsequently when it was in Church Street, do not match one hundred per cent, but that does not detract from the basic grounds for the arrest."

40. Later on page 8:

"In my judgment there is no cogent evidence in this case that PC Binnee did not believe that grounds existed for arresting Dean Tomlinson or Sally Beningfield, and therefore there is no question fit to go to the Jury as to whether or not PC Binnee believed that reasonable grounds for arrest existed."

41. It is to be remembered that reasonable suspicion is something very far away from proof. In the decision of their Lordships in the Privy Council in Hussein v Chong Fook Kam [1970] AC 942, there appears this short passage in the judgment of their Lordships delivered by Lord Devlin:

"Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: `I suspect but I cannot prove.' Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage. It is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrest before that were forbidden, it could seriously hamper the police."

42. The appellants in their skeleton argument, prepared I think by counsel, rely on various discrepancies about what the police thought had been stolen and what was seen in the car respectively in Grange Street and later in Church Street on 2nd July or the early hours of the 3rd. It seems to me that any question whether the metal object in the car on 2nd July 1993 was the same as was in the car on 30th June 1993 might be something that would fall to be investigated in any subsequent interview. But such a question mark cannot, as I see the matter, undermine the objective basis of reasonable suspicion on the facts here. There are inconsistencies in the evidence relating to the alleged assault; as the judge acknowledged there was the allegation that the real motive for arresting the first claimant Mr Tomlinson was that he was in some way causing embarrassment to the police. But the objective grounds for suspicion of theft again are not undermined. The jury, as I have already said, knew about the later events relating to Mr Binnee. They were left to decide the question of assault which was part of the claim that had been brought. But so far as the distinct issue whether the claimants were lawfully arrested is concerned, it seems to me that on the basis of what I may call the core facts there was in effect nothing to dispute before the jury.
43. I turn to the third issue. It has not been in the forefront of the submissions made this morning by Miss Beningfield or Mr Tomlinson. But it in their notice of appeal, and it is right that it should be dealt with. In the notice it is put thus:

"That having erred as in paragraph 2 above [I interpolate that related to the judge's conclusion as to the lawfulness of the arrest] the Learned Judge erred in his explanation to the Jury of his reasons for so concluding. This explanation was given in such a way that the Jury (to whom were left only questions relating to the assaults on the Claimants) were likely to have been led to the conclusion that, the Learned Judge having decided the lawfulness of the arrest, the Police Officers who had given evidence for the Defendant were therefore credible witnesses whereas that was not a conclusion that the Jury would necessarily have reached if left to consider questions relating to the lawfulness of arrest and subsequent detention of the Claimants. If the Jury had been told only that the issue of the lawfulness of the arrest and detention was not a matter for them to consider, the Judge having ruled on the issue, the jury's view of the Defendant's witnesses' evidence would not have been so prejudiced."

44. What the judge said to the jury upon ruling that there were reasonable grounds for the arrest was this:

"Members of the Jury, that disposes of the causes of action for unlawful arrest, because I have ruled, as you have now heard, and given my reasons for coming to the conclusion that there were reasonable grounds for suspecting that Dean Tomlinson and Sally Beningfield had committed theft. But of course you will bear in mind that this Court is not saying that they did in fact commit theft, what is material is whether there were reasonable grounds for suspecting; that is all that I have found. That leaves for your determination the issue of the alleged assaults, and that is what Counsel will now address you upon."

45. Moreover, in earlier passages in this ruling which I have already set out in dealing with the second issue, the judge drew attention to the fact that there were questions about PC Binnee's credibility. The jury must surely have appreciated that the judge's ruling, explained to them as it had been, did not itself depend upon the officer's credibility. More importantly, perhaps, the summing-up in this case was in my judgment entirely even-handed. I shall just take a short passage from page 17:

"That I think is the totality of the direct evidence in relation to these two questions. On the one hand, you have the allegation of the two claimants and on the other hand the evidence of the police officers; and the two sides are completely irreconcilable. You have got to decide whether the claimants have satisfied you, on the balance of probability, that their account is the correct account and that what they say happened did happen."

46. In addition - and I have already referred to this - he reminded the jury of the contention that PC Binnee was a dishonest man.
47. It is entirely plain to me that it must have been obvious to the jury that there was a lock, stock, and barrel dispute about who was telling the truth in relation to the alleged assault. The jury cannot have thought that there was a presumption in favour of the police.
48. While I have very considerable sympathy with the appellants if their complaints of harassment to which I have already referred are true, it seems to me in conclusion that there are no proper grounds upon which this appeal should be allowed and I would dismiss it.
49. LORD JUSTICE ALDOUS: I agree.
ORDER: Appeal dismissed. No order for costs. (Order not part of approved judgment)