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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 >> Daar v Chief Constable of Merseyside Police [2005] EWCA Civ 1774 (13 December 2005) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2005/1774.html Cite as: [2005] EWCA Civ 1774

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ST HELEN'S COUNTY COURT

		Royal Courts of Justice Strand London, WC2
		13th December 2005

Tuesday, 13th December 2005

1. LORD JUSTICE LAWS: This is an appeal brought with permission granted by the Judge below against the dismissal by HHJ McKay in the St Helen's County Court on 17th May 2005 of an application by the appellant, the Chief Constable of Merseyside, for orders striking out two claims brought against him by the respondent. The application was made under CPR Part 3.4 as an abuse of the process.
2. The first of the respondent's actions against the appellant claimed damages for false imprisonment, assault and malicious prosecution arising out of alleged events taking place on 23rd and 24th April 2002. The events were crisply described by HHJ McKay at paragraph 4 of his judgment as follows:

"He claims that on 23rd April 2002 he was travelling as a passenger in a friend's car when it was stopped by the police. He suggests that, before any interchange between himself and the officers, the police bumped into the back of the car. He says he was doing nothing untoward when he was picked on by an officer, then a Police Constable Morgan (now a Sergeant), who falsely alleged that the claimant was not wearing his seatbelt and, when challenged about it, the claimant became abusive and disorderly, leading to his arrest.

5. The following day the claimant says he was simply standing on the street when the same officer, in company with other officers, arrived and the claimant was picked on and arrested. He says that he was assaulted by a constable en route to the police station."

3. The second civil claim concerned events on 10th July 2002. These were described by the Judge as follows:

"7. The second claim involves a vehicle chase on 10th July 2002 when officers saw a Vauxhall Vectra with a number of people on board. Constable Morgan recognised the driver, whom he believed to be driving without a licence, and recognised the claimant as a front-seat passenger. There was a chase and the occupants of the vehicle decamped and fled. Two men were arrested but the claimant made good his escape, so the defendant says. He was circulated as wanted. He was seen and arrested by another officer. He denies that he was in the car and the defendant alleges that he was."

4. The Judge then goes on to explain, in brief, the respondent's causes of action in the two claims. In the first, as I have said, there was a claim for false imprisonment and malicious prosecution. The offences for which he was prosecuted were laid under sections 4 and 5 of the Public Order Act 1986 and also there was a prosecution for assaulting a constable in the execution of her duty. In relation to the July matter, the respondent's case was that he was falsely imprisoned and maliciously prosecuted for an offence of being carried in a stolen motor vehicle. The prosecutions in relation to the April incidents proceeded to court.
5. In the Magistrates' Court, after what I understand to be a full summary trial, the respondent was acquitted of all the matters alleged against him in relation to those incidents on 23rd and 24th April. He was also charged with offences in relation to the July incident, but the claim as regards that was dropped. We have not gone into the details. My understanding is that no evidence was offered, or the matter may have been dropped before it ever got to court. At any rate, there was no trial. However, after the Magistrates' Court proceedings were all over the local authority, at the behest of the Merseyside Police, issued an application in the Magistrates' Court for an anti-social behaviour order (ASBO) against the respondent. This application was determined by District Judge Lomax on 19th September 2003. He made the order sought. The District Judge correctly directed himself that although the application constituted civil proceedings, the criminal standard of proof applied. That was, in very short form, the effect of the decision in their Lordships' House in McCann [2003] 1 AC 787. Giving his judgment on the ASBO application the District Judge stated, in a passage cited by HHJ McKay at paragraph 11 of the latter's judgment:

"This is a difficult case made more difficult by being heard over three separate hearings. Also a difficult case consisting (almost) in its entirety of evidence provided by police officers (the one exception being a senior member of the Somali community), some of whom were involved in failed criminal proceedings and some officers who were reportedly involved in civil proceedings taken by Mr Daar.

There is no doubt about the standard of proof required. The case of McCann (which is a House of Lords case illuminating these matters) makes it clear that I need to be satisfied to the criminal standard that Mr Daar did the acts complained of in these proceedings and they amount to harassment, alarm or distress to one or more people. I also need to be satisfied that an ASBO is needed to prevent further antisocial behaviour.

Much has been made of the alleged personal animosity between some (but not all) police officers and Mr Daar. The officers deny any targeting of Mr Daar. But again it makes it that much more difficult to assess the evidence clinically and objectively.

My conclusion, on the totality of the evidence, is that I have found the evidence presented by the local authority just sufficient to make out the acts alleged to the requisite standard. I find that the behaviour (individually and collectively) did amount to the requisite harassment, alarm or distress; and I find that an ASBO is needed to control further antisocial behaviour. But because of the concerns expressed, namely the sole dependence on the police testimony, I think the scope of the order needs to be looked at carefully."

6. As appears there, effectively the only witnesses bar one to appear in support of the ASBO application were police witnesses. The respondent, I should say, gave evidence at the ASBO application and was cross-examined.
7. The order made by the District Judge is accompanied, as HHJ McKay noted, by a list of the 12 incidents giving rise to the allegations made by the local authority in support of the ASBO application. The list is before us. Acts numbers 4, 5 and 6 related to the incidents in April 2002, the subject of the prosecution or prosecutions which led to the respondent's acquittal. Act number 10 concerned the July incident as regards which, as I have said, the charge that had been laid was not pursued. There has been no appeal against the ASBO by the respondent. There could of course be no prosecutor's appeal against the respondent's acquittal in the Magistrates' Court, save no doubt on a point of law by way of case stated. Nothing of that kind arose.
8. The appellant's case is that with one exception the respondent's civil claims are abusive because they raise issues which have already been determined against him in other proceedings, namely in the application for an ASBO and the District Judge's judgment granting it. The exception relates to the allegation of assault by the police that is pleaded in the first action. That has not been the subject of any previous adjudication in the ASBO proceedings.
9. After a review of the authorities and the Judge's judgment, Mr Edis QC submits in his skeleton (paragraph 7D) that the case raises a single issue: would it bring the administration of justice into disrepute to permit the same issues to be relitigated in the present proceedings. As I understand it Mr Edis accepts that not every legal process or action which seeks to cover the same ground as was covered by earlier litigation will amount to an abuse, and so much, indeed, is elementary. It is submitted however that here there is abuse and the administration of justice is affronted by the respondent's claims, essentially for two reasons. First, the claims involve a collateral attack on an earlier decision in civil proceedings, that is to say the ASBO judgment; and ASBO proceedings, though classified as civil following their Lordships' decision in McCann, have a close affinity with criminal proceedings. Secondly, it is said that the propriety of the respondent's civil claims cannot be saved by pointing to the existence of fresh evidence which the earlier court had no opportunity to consider. A collateral attack is undoubtedly capable of amounting to an abuse of the process. Mr Edis cites the decision of their Lordships' House in Hall & Company v Simons [2002] AC 615 in which reference is made to the earlier House of Lords decision in Hunter v Chief Constable of West Midlands Police [1982] AC 529. And a proceeding which might be abusive on the ground of collateral attack may be saved if there is "new evidence which entirely changes the aspect of the case and which was not, or could not by reasonable diligence, have been ascertained by the claimant at the time of the earlier judicial determination" (see Phosphate Sewage Company Ltd v Molleson [1879] 4 App Cas 801).
10. The principles governing abuse of process including the species of it which may consist in relitigation are not, so the cases demonstrate, hard and fast, or written in black letters. Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1 at 30 to 31 said this:

"It may very well be, as has been convincingly argued ..., that what is now taken to be the rule in Henderson v Henderson has diverged from the ruling which Wigram V-C made, which was addressed to res judicata. But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not."

11. Lord Bingham was of course there dealing with the specific situation arising where the complaint is that a party to later proceedings should have raised on allegation, now sought to be relied on, in earlier proceedings to which it was apt and material. But I apprehend that the appeal to a "broad, merits-based judgment" may properly apply across the board. This approach is, with great respect, all the more pressing in light of our obligation to respect and uphold the rights guaranteed by Article 6 of the European Convention on Human Rights. Article 6 is concerned not only with the independence and impartiality of the court, but with the very right to a determination itself. It may be said to underline the constitutional principle of the common law by which high importance is given to the subject's right of access to the Queen's Courts. Of course such a right can be overridden by another constitutional interest. The protection of the justice process against disrepute and manipulation will plainly be capable of providing such a higher interest.
12. I have also considered the judgment of Sir Andrew Morritt V-C in Secretary of State for Trade and Industry v Bairstow [2004] Ch 1, but, with respect, need not recite the text.
13. The appellant says that at numbers 4, 5, 6 and 10 in the ASBO schedule are among the very matters established to the criminal standard in the ASBO proceedings. The police evidence supporting them is the very evidence that they would serve in defence to these civil claims. At paragraph 6 of his skeleton Mr Edis submits as follows:

"The Claimant has not appealed against the Anti- Social Behaviour Order, but he now seeks to prove that the findings on which it was partly based were wrong and it would follow that it should not have been made. Thus, the possibility exists that he may be compensated in these civil actions because certain allegations are lies, at the same time as he is punished from breach of an order made on the basis that they were true."

It is right, as I hasten to say Mr Edis is the first to acknowledge, that no breach proceedings are at present in contemplation.

14. The respondent has some points as to the "diffuse and unfocused" allegations which may be made in ASBO proceedings and submits that the making of an ASBO establishes nothing beyond the fact that its recipient has been guilty of conduct likely to cause harassment, alarm or distress within the meaning of section 1(1)(a) of the Crime and Disorder Act 1988. In very general terms that is quite right. But here, as it happens, we have the judgment of the District Judge indicating that he accepted as proved all the specific allegations enumerated 1 to 12 in the schedule.
15. Mr Edis drew our attention this morning to the Act of 1998. Amongst other things he pointed to the fact (see section 1(1)(a)(c) that the Chief Constable could himself have made the application for an ASBO; and in that case strict issues of issue of estoppel or res judicata would have arisen upon issue of the respondent's civil claims. However that is not what happened. What is I think of some importance in relation to the nature of ASBO proceedings arises from the fact that they are, as I have already said (as explained in McCann) to be categorised as civil. That engages what Lord Steyn said in Hall & Co v Simons at 680 as follows:

"Relying on my experience of the criminal justice system as a presiding judge on the Northern Circuit and as a member of the Court of Appeal (Criminal Division), I do not share intuitive judgments that the public policy against relitigation still requires the immunity to be maintained in criminal cases. That leaves collateral challenges to civil decisions. The principles of res judicata, issue estoppel and abuse of process as understood in private law should be adequate to cope with this risk. It would not ordinarily be necessary to rely on the Hunter principle in the civil context but I would accept that the policy underlying it should still stand guard against unforeseen gaps."

16. It is not necessary, with great respect, to travel back into the speeches in Hunter itself. The case established that an abuse of process might be constituted where there is in effect a collateral attack on an earlier criminal conviction, albeit that the collateral attack is constituted by later proceedings in which it could not be said that the strict principles of res judicata or issue estoppel apply.
17. What is in my judgment of the first importance here is that the ASBO was obtained, as I have said, on proof to the District Judge of matters which expressly included allegations of which the respondent had been acquitted in the Magistrates' Court. I see no escape from the proposition, on these particular facts, that whatever other matters may have informed the ASBO application, it was a signal feature of that application that the applicant local authority invited the court to retry allegations on which the respondent had been acquitted. It is perhaps not fruitful to consider, and I certainly do not decide, whether the ASBO application might itself have been stayed as an abuse. The result of this case, as I perceive the matter, is dependent solely on the particular circumstance of the earlier acquittal, and the particular part played by the subject matter of those criminal proceedings in the ASBO application.
18. Mr Edis has submitted in his skeleton at paragraph 7(a) that it could not in any event have been shown that the ASBO proceedings were abusive because "acquittal is not evidence of innocence and evidence rejected by a court can later be relied upon in subsequent criminal proceedings to prove guilt (see R v Z [2000] 2 AC 483)." This, with respect to Mr Edis, does not do full justice to the Z decision. I propose just to read the headnote:

"The defendant was charged with rape. He had been tried for rape on four previous occasions, being convicted once. The Crown wished to call the four previous complainants to give evidence of the defendant's conduct towards them in order to negate the defendant's defence of consent or belief as to consent, submitting that their evidence was admissible under the similar facts rule. The trial judge ruled that the evidence of the three complainants in respect of whom the defendant had been acquitted was inadmissible and that the evidence of the fourth complainant standing alone could not establish a sufficiently cogent picture of similar facts to be admitted. The Court of Appeal dismissed an appeal by the Crown against the judge's ruling."

19. It was held in that case that while the principle of double jeopardy prevented a defendant from being prosecuted for an offence on the same, or substantially the same, facts as in a previous prosecution, still the relevant evidence was not inadmissible merely because it showed or tended to show that the defendant had in fact been guilty of a previous offence of which he had been acquitted.
20. It is to be noted that it was integral to their Lordships' reasoning in Z (see in particular per Lord Hutton at 504) that a man should not be reprosecuted for an offence of which he has been acquitted. Lord Hobhouse said this at 510:

"Fairness requires that the jury hear all relevant evidence. It also requires that the defendant shall not without sufficient reason be required more than once to rebut the same factual allegations. In principle a case supported by probative similar fact evidence is a sufficient reason. However, in exercising his discretion under section 78, [that is, of course, section 78 of the Police and Criminal Evidence Act 1984] the judge must take into account the position of both the prosecution and the defendant. If the fairness of the trial will be compromised by the non-exclusion of the similar fact evidence, the evidence should be excluded although otherwise admissible. Trial judges are experienced in exercising their discretion under section 78 and regularly have to balance probative value against prejudice. Any prejudice to the defendant arising from having to deal a second time with evidence proving facts which were in issue at an earlier trial is simply another factor to be put into the balance. The fact that the previous trial ended in an acquittal is a relevant factor in striking this balance but is no more than that."

21. It will be seen then that Z is really concerned with a specific issue as regards the admissibility of evidence. It does not, as it seems to me, throw light on the very different question whether some complaint might have been made about the bringing of the ASBO proceedings here, having regard to the fact of the previous acquittal. In the ASBO proceedings the local authority set out to prove the very facts of which the respondent had been acquitted as part of their substantive case for an ASBO. That, it seems to me, distinguishes the case from Z. It may be that the local authority may take that course; I find it difficult to see that it may then be said that it is an affront to the administration of justice for a person in the respondent's position, acquitted earlier of those very matters after a full trial, to seek to assert his innocence by civil proceedings: not because the acquittal proves innocence -- plainly it does not; but because in light of the acquittal it is not offensive to the process of justice for the respondent to insist in civil proceedings that he should not have been prosecuted at all.
22. Other points have been canvassed in the case, not least whether the appellant in any event should not have pressed his application before evidence had been called which would assist the Judge in determining whether in truth there had been an abuse (see Smith v Linskills [1996] 1 WLR 763). I do not find it necessary to go into that.
23. For the specific reasons I have given, relating as they do to the earlier acquittal in this case and the part played in the ASBO application by the facts that gave rise to that earlier prosecution, I am unpersuaded that these civil proceedings can properly be categorised as an abuse of the process. I acknowledge the concern expressed by Mr Edis for the Chief Constable that public authorities including his client should not be constrained by a previous acquittal from bringing an ASBO application relying, in part at least, on matters in relation to which an acquittal eventuated. I have already sought to make it clear that I consider that this case turns very closely on its own circumstances. I do not decide that the ASBO proceedings were abusive, nor that such claims as those now launched by this respondent might not be abusive absent the earlier acquittal in the Magistrates' Court. I would hold only, as I have said, that it is not an affront to the administration of justice for these particular civil proceedings to continue.
24. I would not in the result make a distinction between the April and the July matters, although, as I have said more than once, there was no trial to a conclusion relating to the July matter. Had the July matter stood alone, the result might I suppose have been different. It does not seem to me to be sensible in the context of an abuse of process argument to make the distinction in the events which have happened here. For all these reasons, for my part, I would dismiss the appeal.
25. LORD JUSTICE MOORE-BICK: I agree. In the context of this particular case, I think it is important to bear in mind that events 4, 5, 6 and 10 in the Anti-Social Behaviour Order Schedule, on the basis of which the District Judge made his decision, and which lie at the heart of this appeal, were only some of the many complaints upon which the District Judge found that the claimant had acted in an anti-social manner. If those matters had been excluded altogether from his consideration, there was still, in my view, plenty of material justifying the making of the order. It seems to me, therefore, that an attempt to reopen those particular matters in the context of civil proceedings does not involve a challenge to the ASBO. The question, then, is whether it would be manifestly unfair to allow the respondent to pursue this claim, or whether the administration of justice would be brought into disrepute by allowing him to do so. These are questions which depend very much on the particular facts of the case, and, for the reasons given by my Lord, Laws LJ, I, too, am satisfied that on the facts of this case it would not be an abuse of the process to allow this claim to proceed. I, therefore, would also dismiss the appeal.
(Appellant to pay the respondent's costs. Detailed assessment ordered.)