"(6) Where a constable has reasonable grounds for suspecting that an arrestable offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of an offence."

The Facts

The claimant was a passenger in a car stopped by a police patrol car on a motorway because of a damaged windscreen. A routine check on the police computer revealed an entry concerning the owner of the car, warning officers that the occupant might be armed with a firearm.

An armed response team was summoned and the claimant was arrested, handcuffed, searched and taken to a police station. No weapon was found on his person or in the vehicle.

Later the claimant was released from custody. He brought an action for damages.

The Law

LORD JUSTICE SIMON BROWN said that having accepted that the arresting officer genuinely suspected the claimant to be guilty of the unlawful possession of a firearm, the judge turned to the critical question: whether, considered objectively, reasonable grounds existed for the constable’s suspicion. The judge concluded that the burden of proof went back to the stage of the officer who placed the entry on the police national computer.

It was the chief constable’s central contention on the appeal that the evidence of the officer who placed the information was in fact immaterial: the only relevant information was that in the mind of the arresting officer.

The judge was much influenced by an obiter dictum of Mr Justice Forbes in Millington v Commissioner of Police of the Metropolis (The Times May 28, 1983 referred to in a footnote in Clayton and Tomlinson’s publication Civil Actions Against the Police (2^nd edition (1992) pp 175-176).

It was implicit in that approach that, depending on the circumstances of the arrest, what might be required to determine whether reasonable grounds existed for suspicion was investigation not of what was in the mind of the arresting officer but rather of what was in the mind of some other officer who instructed or requested the first officer to make the arrest or who provided the information which, reasonably or otherwise, caused that officer to form a genuine suspicion and make the arrest. That approach could not live with the House of Lords decision in O’Hara v Chief Constable of the Royal Ulster Constabulary (1997) AC 286; Police Journal Volume LXX No 3 page 275 in which it was held that the only relevant matters were those present in the mind of the arresting officer.

(In O'Hara it was held that in order to determine whether reasonable grounds for the suspicion to justify arrest without warrant existed under section 12(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1984, the test related to what was in the arresting officer's mind when he effected the arrest because he must have formed a genuine suspicion that the person being arrested had been concerned in acts of terrorism.

It had also to be shown that there had been reasonable grounds for forming such a suspicion. The basis of that suspicion was not necessarily the officer's own observations. He could have formed the suspicion from the information he received, whether true or false, and a reasonable man, having regard to all the surrounding circumstances, would also regard that suspicion as reasonable.

Instructions by a superior officer to arrest, without more, was insufficient to afford a ground for reasonable suspicion. The arresting officer should be given some basis for such instructions, for example, a report from an informer.)

O’Hara was decided after Clayton and Tomlinson wrote their book. It was, however, decided three years before judgment in the present case and it was a matter of surprise and regret that it was not brought to the judge’s attention.

Both parties had been represented by counsel although not counsel acting in the appeal.

The principle established, although on consideration of a different question, necessarily extended to encompass a case like the present.

The critical question to be asked in all cases was what was in the mind of the arresting officer: he could never be a mere conduit for someone else. It was for that reason insufficient for an arresting officer to rely solely upon an instruction to carry out the arrest. Conversely, however, where the arresting officer’s suspicion was formed on the basis of a police national computer entry, that entry was likely to provide the necessary objective justification. After all, if, as the authorities clearly established, information from an informer or member of the public could properly found suspicion for an arrest, why too should not an apparently appropriate entry in the computer? That was not to say that any computer entry would of itself necessarily justify an arrest. If there was no urgency in the situation and if in the light of the whole surrounding circumstances (see O’Hara) some further inquiry was clearly called for before suspicion could properly crystallise, then the entry alone would not suffice. Even, moreover, when, as here, the entry of itself provided sufficient justification for an arrest, that might not leave the aggrieved citizen entirely without remedy. Certainly it would defeat a claim for wrongful arrest.

Perhaps, however, a claim in negligence would lie against an officer making the entry in the first place, or perhaps for failing later to relive it, if it could be established that he had no proper basis for ever having made it.

In considering any such claim, of course, one would recognise that the computer entry of itself was likely to lead to just such an arrest as occurred in the present case.

Some support for a cause of action being available against the police in such circumstances could be found in the unreported decision in Clarke v Crew on May 28, 1999 (Court of Appeal (Civil Division) Transcript No 0891 of 1999.

That, however, was a question for the future.

The Decision

Where on the basis of information on the police national computer a police constable made an arrest which later formed the basis of an action for wrongful arrest and false imprisonment, the critical issue in determining the lawfulness of the arrest was whether the arresting constable had acted reasonably in acting on the information.

It was not relevant to consider whether the officer who made the computer entry had had reasonable grounds for placing the information on the computer.

The Court of Appeal so held, allowing an appeal by the Chief Constable of Staffordshire Police against the judgment at Chester County Court for the claimant, Gary Hough, with damages of £10,000 plus £600 interest for wrongful arrest, assault and false imprisonment

Comment

Powers of Arrest

It is of immense importance how an officer exercises his discretion under s.24 (6) of PACE since the outcome may be an unlawful arrest resulting in an action similar to this, assault and false imprisonment in a County Court.

S.24(6): "Where a constable has reasonable grounds for suspecting that an arrestable offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence."

Sub-section (6) deals with a constable's power of arrest: it could be termed "the double negative": there are double reasonable grounds for suspecting; both as to the commission of the offence and the person who has committed it.

Reasonable grounds suggest an objective test, this is lower than the standard sufficient to prove a prima facie case. In the course of their duties constables act for various reasons, eg, information received, radio messages, telephone calls, or perhaps the word of an informer; all are valid reasons. It is not surprising that the Courts have allowed reasonable scope: whilst setting limits.

Civil actions against the police have increased in recent years, these are a few of the cases worthy of note.

In Chapman v Director of Public Prosecutions (1988) 89 Cr.App.R. 190, it was held that a constable who suspects a person of committing an offence to which only a limited power of arrest applies cannot later defend himself on the footing that the facts might have fallen into a more serious offence category.

The Court found that the officer believed that a fellow officer had suffered an assault. The Court concluded this was a common assault, (no known injuries), which is not an arrestable offence. The officer had purportedly exercised his powers under s.26(6) Pace Act and entered a flat to do so: in the course of which he was assaulted in the execution of his duty. The Court said they were not holding that the officer did not believe he had reasonable suspicion, they were saying the conviction could not stand because there was no finding that he did.

In Castorina v Chief Constable of Surrey (1988) 138 NLJ 180, it was held that failure to follow an obvious course of inquiry or verification in exceptional circumstances may, however, be grounds for attacking the exercise of the power. Woolf LJ; suggested these.

Did the arresting officer suspect that the person arrested was guilty of the offence? This is subjective to the officer's mind.

Was there reasonable cause for that suspicion? This is a matter of law for the Judge;

If the answer to these questions is affirmative, then the officer has a discretion to arrest (he may) arrest, and the discretion must be exercised in accordance with the principles set down in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

Ward v Chief Constable of Avon and Somerset Constabulary (1986) The Times, 26 June, was also an action for wrongful arrest and false imprisonment. Following rioting in Bristol a detective sergeant received information that a television set had been carried into a premises. He went to the premises were he was admitted voluntarily. Whilst searching he found 13 Easter eggs. He did not believe the claim that they were purchased at 37p each: the price was too low and there were no price labels on them. He arrested because he had reasonable cause to suspect an arrestable offence had been committed.

The Court of Appeal held he had reasonable cause, "looking objectively as one should, DS Edwards did have reasonable cause for making the arrest. He had found the eggs in circumstances which aroused his suspicion and which called for an explanation. He was given an explanation which was apparently untrue. He disbelieved it, and on good grounds".

Mohammed-Holgate v Duke [1984] AC 437, concerned the theft of jewellery from a premises in which the plaintiff lodged. When items turned up in a local jeweller's shop the description given to police fitted the plaintiff. She was arrested on reasonable suspicion. The plaintiff maintained her innocence and was never charged. She made a claim to to County Court and was awarded £1,000 damages.

The basis of the claim was that the power had been exercised to induce the plaintiff to confess. The detective constable knew that without a confession he would not be able to charge the plaintiff, and by depriving her of her liberty there was a likelihood that she would confess.

It was held, by the House of Lords, that in deciding whether or not to make an arrest as in this case, a constable was entitled to take into consideration as a relevant matter the fact that the suspect would be more likely to tell the truth if detained for questioning at a police station rather than questioning at the suspect's home.

Plange v Chief Constable of South Humberside Police, The Times, 23 March 1992 concerns a civil action in which the plaintiff was alleged to have committed an assault. The complaint was subsequently withdrawn, but the plaintiff was nevertheless arrested and taken to a police station and detained for four hours. He was released without charge.

The issue at the end of the trial concerned the legality of the arrest. If it was lawful the claim would fail.

The County Court Judge had ruled that there was no case to go to the jury and dismissed the plaintiff's action.

The Court of Appeal, in allowing the appeal by the plaintiff, held that where a police officer arrested a person on reasonable suspicion that he had committed an arrestable offence and the arrested person could prove that the arresting officer knew, at the time of the arrest, that there was no possibility of a charge being made, then the arrest would be unlawful because the arresting officer had acted on some irrelevant consideration, or for an improper purpose

According to a report in The Times, on 11 July 1992 David Plange has been awarded £13,750 damages in his civil action against the police.

In Plange Parker LJ; said, "It must be borne in mind that under s.37 of Pace it was for the custody officer, not the arresting officer, to determine whether there was sufficient evidence to charge an arrested person and that the arresting officer's private opinions as to the likelihood or otherwise of a charge were not relevant. If he satisfied s.24(6) and took the arrested person to the police station he was, save in exceptional circumstances, properly fulfilling his duty.

In conclusion, where a constable's reasons for suspicion are sufficient, he is under no obligation to go looking for further evidence, or to probe every explanation before exercising his powers of arrest; as Lord Devlin said in Shaaban Bin Hussien v Chong Fook Kam [1970] AC 942, at 948; "suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove'." However on the authority of Plange, if he knows there will be no charge he cannot use s.24(6) Pace 1984 Act.

In s.24(5) PACE Act 1984 powers of arrest without warrant are given if an arrestable offence has been committed. As a condition precedent an offence must have been committed.