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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
    1. European Convention on Human Rights Art 5
    2. Guzzardi v Italy (1980) 3 EHRR 333
    3. R v Howell [1982] QB 416; [1981] 3 All ER 383
    4. Foulkes v Chief Constable of Merseyside [1998] 3 All ER 705
    5. DPP v Redmond-Bate (1999) 163 JP 789: [2000] HRLR 249
    6. Bibby v Chief Constable of Essex (2000) 164 JP 297; [2000] Po LR 107; The Times April 24 2000
    7. Police and Criminal Evidence Act 1984 ss 24-25; original versions
    8. Hough v Chief Constable of the Staffordshire Constabulary [2001] EWCA Civ 39
    9. Police and Criminal Evidence Act 1984 s 24A
    10. Christie v Leachinsky [1947] AC 573
    11. Police and Criminal Evidence Act 1984 s 28
    12. Kenlin v Gardner [1967] 2 QB 510; [1966] 3 All ER 931
    13. Albert v Lavin [1982] AC 546; [1981] 3 All ER 878
    14. McKee v Chief Constable for Northern Ireland [1984] 1 WLR 1358; [1985] 1 All ER 1
    15. Fox, Campbell and Hartley v United Kingdom (1990) 13 EHRR 157
    16. O'Hara v United Kingdom (2002) 34 EHRR 32
    17. Brogan v United Kingdom (1989) 11 EHRR 117
    18. A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68
  24. Chapter twenty-three: Leaving the European Union

Hough v Chief Constable of the Staffordshire Constabulary [2001] EWCA Civ 39

SIMON BROWN LJ: [1] This is the Chief Constable of Staffordshire's appeal against the order of Judge Edwards QC at the Chester County Court on 22 June 2000, giving judgment for the respondent for 10,000 damages (and 600 interest) for wrongful arrest, assault and false imprisonment. The critical decision was as to the lawfulness or otherwise of the respondent's arrest: having held that to have been unlawful, the findings as to assault and false imprisonment necessarily followed.

[2] The relevant facts are few and can be briefly told. The claim arose out of events occurring on the M6 motorway on 27 July 1995. At about 8.30 that morning the respondent (then aged 21) was travelling as the front seat passenger in a motorcar being driven south from Crewe to Northampton where the driver, a Mr Messam, was due to appear before the Crown Court. Both he and the respondent, I may note, have criminal records. On the Staffordshire section of the motorway the vehicle was stopped by a police patrol car, the officers being concerned that the vehicle had a damaged windscreen. In the course of their enquiries a routine check was made with the police national computer and then it was that the situation took a disturbing turn. Having identified the vehicle owner as a Mr Skeldon, the computer entry read as follows:

"Any sighting and description of the occupants only, no stop checks, do not approach, occupant may be armed with a firearm; information to Sergeant 1615 Woodruff at Crewe."

[3] On reading that entry, the traffic officers immediately summoned a police armed response unit to the scene, continuing in the meantime to act as if their concern was solely with a construction and use problem. After a few minutes the armed response unit duly arrived, consisting of Police Constables Cox and Turner with handguns and carbines. The respondent was at that stage sitting in the passenger seat with his legs out of the car. PC Cox at once approached him and, telling him that a police marksman (PC Turner) was aiming at him, instructed him to get out of the vehicle. He was ordered first to place his hands on the vehicle and then to put each in turn behind his back to enable him to be handcuffed. Having then been subjected to a vigorous up and down search of his clothing for a concealed weapon, he was placed in the police car and, together with Mr Messam, taken first to one and then to another Stoke-on-Trent police station. On their initial search of the vehicle at the scene the officers had been unable to find any firearms. They wanted, however, to carry out a more thorough search and for that reason took the men off to the police station. At about 10 am, when that further search had been completed and proved negative, the men were finally released from custody.

[4] [T]he arrest was held to have been unlawful....because the police called no evidence to indicate on what basis the computer entry had come to be made....

[6] Those being the facts, I come to the appeal. It is brought by leave of the Judge below, expressly limited to "a single issue of law", helpfully now formulated by Mr Mark Turner QC for the appellant as follows:

"When grounds for an arrest are based upon an entry on the police national computer, is the test of reasonableness to be applied to the officer making the arrest or the officer who put the information on the computer?"

[7] Section 24(6) of the Police & Criminal Evidence Act 1984 provides:

"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."

[8] Having accepted that PC Cox genuinely suspected the respondent to be guilty of the unlawful possession of a firearm, the judge then turned to the other critical question upon which the Chief Constable had to satisfy him: the question whether, considered objectively, reasonable grounds existed for PC Cox's suspicion? As to this, the judge's conclusions were as follows:

". . . in my view, whether Constable Cox had reasonable cause to suspect depends on whether the officer who put that message on the computer had reasonable cause to suspect that the occupants of this particular vehicle might be armed.

. . . where something has been deliberately entered onto the police computer by another officer . . . an officer reading from the computer is all the more likely to dispense with any separate assessment of his own as to what the actual facts are and is likely to rely on what is on the computer. Can it be right that simply by placing false information on the computer a police officer could somehow justify arrests by another officer who relied on that information? I think that would be a very dangerous path to go down.

I do not criticise the officers at the scene. They acted entirely reasonably once they realised that they had stopped a vehicle that perhaps they should not have stopped, had they known more, and they were acting on the information on the computer, but the burden of proof goes back to the Woodruff stage, and that is the fatal lacuna in the defendant's case."

[9] The defendants, I may note, had applied during the trial to call Sergeant Woodruff in evidence. Given the inexcusable lateness of their application, however, and that it would have required a substantial adjournment, the judge understandably refused it. That ruling is not now challenged. Rather it is the Chief Constable's central contention on the appeal that Sergeant Woodruff's evidence would in fact have been immaterial: the only relevant information is that which is in the mind of the arresting officer, here PC Cox.

[10] As the judgment below makes plain, the judge was much influenced in his conclusion by an (unreported) obiter dictum of Forbes J in 1983 Millington v Metropolitan Police Commissioner, referred to in a footnote to the following passage in Clayton and Tomlinson's 1992 publication "Civil Actions Against the Police", at pp 175-176:

"It has been suggested that, where one officer acts upon information from another officer by, for example, relying upon information in the police computer, the officer who must have reasonable grounds for his suspicion is the one who originally put the information into the computer. The officer who acts on the basis of that information is a 'mere conduit' [it is here that there is a footnoted referring to Forbes J's case]. It is submitted that, in general, when a police officer arrests someone at the request of another officer, the arrest will be unlawful unless the requesting officer has reasonable grounds for his suspicion."

[11] It is, of course, implicit in this approach that, depending on the circumstances of the arrest, what may be required to determine whether reasonable grounds exist for suspicion is investigation not of what was in the mind of the arresting officer (Officer A) but rather of what was in the mind of some other officer (Officer B) who instructed (or requested) Officer A to make the arrest or who provided the information which (whether reasonably or otherwise) caused Officer A to form a genuine suspicion and make the arrest.

[12] To my mind, however, that approach cannot live with the decision of the House of Lords in O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286, [1997] 1 All ER 129 in which the leading speeches were given by Lord Steyn and Lord Hope of Craighead.

[13] Lord Steyn (at p 293 of the former report) observed that in framing statutory provisions of this kind (s 12(1) of the Prevention of Terrorism (Temporary Provisions) Act 1984 in that case; here s 24(6) of PACE):

"Parliament has proceeded on the longstanding constitutional theory of the independence and accountability of the individual constable . . . the only relevant matters are those present in the mind of the arresting officer."

He then continued:

"Certain general propositions about the powers of constables under a section such as s 12(1) can now be summarised. (1) In order to have a reasonable suspicion the officer need not have evidence amounting to a prima facie case. Ex hypothesi one is considering a preliminary stage of the investigation and information from an informer or a tip off from a member of the public may be enough: Hussien v Chong Fook Kam [1970] AC 942, 949. (2) Hearsay information may therefore afford a constable reasonable grounds to arrest. Such information may come from other officers: Hussien's case, ibid. (3) The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest . . .

Given the independent responsibility and accountability of a constable under a provision such as s 12(1) . . . it seems to follow that the mere fact that an arresting officer has been instructed by a superior officer to effect the arrest is not capable of amounting to reasonable grounds for the necessary suspicion within the meaning of s 12(1) . . . Such an order to arrest cannot without some further information being given to the constable be sufficient to afford the constable reasonable grounds for the necessary suspicion . . . In practice it follows that a constable must be given some basis for a request to arrest somebody under a provision such as s 12(1), eg a report from an informer."

[15] O'Hara was, of course, decided after Clayton and Tomlinson wrote their book. It was, however, decided three years before judgment in the present case and it is a matter of some surprise and regret that it appears not to have been brought to the judge's attention. Both parties below were represented by counsel albeit not, I hasten to say, counsel now representing the Chief Constable on this appeal. The respondent, I should add, is today neither represented nor indeed present: his legal aid certificate, perhaps unsurprisingly in the circumstances I have outlined, was recently discharged.

[16] True it is that the particular question under consideration in O'Hara was whether an order to arrest given by a superior officer was itself sufficient to afford the arresting officer a reasonable suspicion. It was the Chief Constable's (unsuccessful) contention that it was. The principle established, however, necessarily extends to encompass also a case like the present. The critical question to be asked in all cases is what is in the mind of the arresting officer: he can never be a "mere conduit" for someone else. It is 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 is formed on the basis of a police national computer entry, that entry is likely to provide the necessary objective justification. After all, if, as the authorities clearly establish, information from an informer or member of the public can properly found suspicion sufficient for an arrest, why too should not an apparently responsible entry in the computer?

[17] But that is not to say that any computer entry will of itself necessarily justify an arrest. If...further enquiry was clearly called for before suspicion could properly crystallise, then the entry alone would not suffice.

[20] By way of footnote I add only this. The contention is advanced in a skeleton argument earlier submitted by counsel for the respondent on this appeal that art 5(1)(c) of the European Convention on Human Rights "enables reasonable suspicion to be given a wider content that that applied by the court in O'Hara", so that it becomes relevant also to have regard to what lay behind the computer entry. That argument too, however, must fail. The judgment of the European Court of Human Rights in Fox, Campbell and Hartley v United Kingdom (1990) 13 EHRR 157 was expressly considered in O'Hara and drew from Lord Hope the comment at p 302 that he could see no conflict in principle between the approach taken in the English cases and that taken in the European Court.

[21] In the result the appeal succeeds.