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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

Christie v Leachinsky [1947] AC 573

VISCOUNT SIMON: My Lords, the respondent is a "waste" merchant who deals in what are commonly called "rags", with a warehouse in Beaufort Street, Liverpool. The two appellants are respectively a detective constable and a detective sergeant in the Liverpool City Police Force. The respondent has brought an action against the appellants (together with other police officers who has now been dismissed from the suit) for damages for false imprisonment, alleging that he was wrongfully arrested and detained by them on 31 August 1942. The trial judge, Stable J directed judgment to be entered for the defendants (including the present appellants), but the Court of Appeal (Scott, Lawrence and Uthwatt LJJ) reversed this decision and ordered judgment to be entered for the plaintiff (the present respondent) against the appellants for damages, such damages to be assessed by judge and jury. I agree with Scott LJ that the main issue raised is of great importance and requires examination, for it concerns the liberty of the subject and the extent of the powers of the police to arrest without warrant.

The facts which raise this issue are as follows. The respondent was in the habit of buying his supplies from various towns and had recently from time to time made purchases from a tailoring firm in Leicester called Michaelson.

On 26 August 1942, he there bought three bales of waste cuttings for 4 6s Od., such waste being habitually sold by weight. On 27 August he called with a van to pay for and collect what he had bought and, according to his story, incidentally asked Mr Michaelson if he had any "remnants" out of which to make a dress for his wife. Mr Michaelson said he had many, and in the result the respondent bought the lot for 22, and they were packed in a single bale. The contents were pieces of cloth, stockinet, and linings. The bale is referred to in the evidence as "a bale of cloth." The respondent paid cash for the whole purchase. He consigned the four bales, together with 23 other bales of waste bought from other sellers in Leicester, by carrier to his warehouse in Liverpool, describing the whole consignment, for the purpose of the carrier's charges, as "waste." Stable J considered that no sinister inference should be drawn from this misdescription. On Saturday, 29 August the Liverpool police (apparently having already some suspicion on grounds which were not alleged in the pleading or explained at the trial) examined the goods while in the hands of the carrier and, so ascertained that one of the bales contained pieces of cloth and not mere "waste." It is possible that the interest of the police was aroused because of war-time restrictions on the sale and purchase of cloth. On the morning of Monday, 31 August the appellants secretly watched the unloading of the bales and their removal into the respondent's warehouse by the back entrance. The respondent was present and assisted in the work. He himself carried the bale of cloth inside and placed it near the door. The other bales, which required to be weighed to check the purchases, were placed in another part of the premises. The appellants now went round to the front door of the warehouse, entered, it without any search warrant, and told the respondent they were making enquiries about a bale of cloth which had been delivered to him. The respondent professed to know nothing about any cloth, and the appellants set to work to search the premises. The respondent asked if a search warrant was not necessary, but the appellant Morris told him that he was "not exceeding his powers at all"-an assertion which seems quite contrary to the law. The appellants, not being satisfied with the respondent's explanation, arrested him on a charge of "unlawful possession" under the Liverpool Corporation Act, 1921, and took him in custody to Essex Street Bridewell.

There can be no doubt that the Liverpool Corporation Act did not authorise this arrest at all. The Act does not use the term "unlawful possession," though this is the customary phrase used in connection with an infringement of the Act. The phrase is, in fact, somewhat misleading. The following provisions are included in part II of the Act:

'S. 507(1): Any person brought before any court of summary jurisdiction charged with having in his possession any thing which there is reasonable ground to believe or suspect has been stolen and (sic) who does not account to the satisfaction of the court for his possession of the same shall be liable to a penalty not exceeding 5 or in the discretion of the court to imprisonment for any term not exceeding two months with or without hard labour. (2) If any person so brought before any court shall declare that he received such thing from some other person or that he was employed as a carrier agent or servant to convey the same for some other person such court shall cause such other person and also if necessary every former or pretended purchaser or other person through whose possession the same shall have passed to be brought before a court and examined ... (5) For the purposes of this section ... the expression "stolen" means stolen or unlawfully acquired or detained....

S. 573: It shall be lawful for any police constable and all such persons as he shall call to his assistance to arrest and detain without warrant-(1) Any person whose name and residence shall be unknown to such constable and cannot then be ascertained by him and who shall commit any offence against ... . the provisions of ... . this part of this Act.'

Inasmuch as the appellants knew the respondent's name and also knew his place of residence in Southport where he had lived for the last eighteen years and moreover arrested him in his own warehouse in Beaufort Street, the Act manifestly gave the appellants no right to arrest the respondent for "unlawful possession" without a warrant.

What is surprising, and is a matter for severe comment, is that the appellant, Christie, admitted at the trial that he knew at the time that he had no power to arrest without warrant under the Liverpool Corporation Act in the circumstances and that the arrest was, nevertheless, made on this charge because it was the "most convenient" course. It is much to be hoped that the Liverpool police will be instructed not to disregard the limitations laid down by law in this connection again. In another aspect the Liverpool Act is a curious one, for the misdemeanour created by it only arises if the individual, when brought before the magistrate, fails at that stage to account for what is in his possession. No offence, therefore, can be committed before he is brought before the magistrate and the power of the police to arrest and detain an individual (whether with or without a magistrate's warrant, according to circumstances) is not a power to charge him with having committed the crime of "unlawful possession" (for up to that time he has not committed any breach of the Act,) but rather a power to arrest and detain him if his name and residence are unknown to the police so as to bring him before the court to give his explanation. The suspicion that a thing "has been stolen" is, of course, quite different from the suspicion that the individual was a party to stealing it or has received it knowing that it was stolen.

The respondent was brought to Essex Street police station about noon in custody, and later was charged by the appellant, Christie, before Police Sgt Tindall, who was then the officer on duty, with "unlawful possession" under the Liverpool Act. Christie told Tindall that "bail was not advisable." The respondent was kept a prisoner all night.... The next morning he was brought before the stipendiary on the charge of "unlawful possession" and the prosecuting constable asked for his remand for a week in custody. The stipendiary may not have been told that when the police arrested the respondent they already knew his name and address. At any rate he acquiesced in the police request. About 1.30 pm, on the day of his arrest, the respondent, after being "cautioned" by Christie, made a signed statement in which he gave a full account of how he acquired the property and gave the name and address of Michaelson, from whom he had bought the four bales and to whom had had paid cash for them. The Liverpool police, however, took no steps to bring Michaelson before the Liverpool magistrate and on 8 September the respondent was brought up again and remanded on bail for a further week until 15 September. In the meantime, the Leicester police interviewed Michaelson, who, for some reason, told a pack of lies, asserting that he had never sold the contents of the bale of cloth to the respondent or at all, and that the articles in that bale had been taken from him without his authority. On 15 September as the Leicester police were intending to prosecute the respondent for larceny, the Liverpool police applied to the stipendiary for leave to withdraw the proceedings before him, and this was done. (A further allegation of false imprisonment occurs at this point, which I will deal with later.) When the respondent was subsequently brought before the court at Leicester his solicitor triumphantly exploded the case against him and showed up Michaelson for the liar he was. In the result, therefore, the respondent has not been proved guilty of any offence and he has spent a week in prison, after being arrested on a charge of "unlawful possession" in circumstances where an arrest on this charge was contrary to law. Any liability of the police, however, for the arrest of 31 August ended when the stipendiary ordered the remand in custody, for the remand was the action of the magistrate for which the appellants cannot be held responsible as for false imprisonment.

If there were nothing to add to the above facts, it would be clear that the appellants, by arresting the respondent without a warrant on 31 August on a charge of unlawful possession when they knew his name and residence, were acting illegally and were liable to pay damages for false imprisonment: see Dumbell v Roberts. Indeed, this was admitted at the trial, but by an amendment of their defence it was pleaded that at the time of the arrest they had reasonable and probable cause for suspecting, and, in fact, suspected, that the respondent had stolen of feloniously received the bale of cloth. Stable J found that this was true, but neither the pleading nor the evidence suggested that the respondent was told that he was arrested on this ground. The question to be determined is, therefore, whether, when a policeman arrests X without a warrant, on reasonable suspicion that he has committed a give felony, but gives X no notice that he is arrested on suspicion of such felony, he is acting within the law.

There is nothing in the judgment of the trial judge to indicate that this vital question was ever argued out before him at all. Stable J had no difficulty in holding that in the circumstances arrest on the charge of "unlawful possession," standing by itself, was an unlawful imprisonment, but the fact that the police reasonably suspected larceny or felonious receiving appeared to him to provide a complete defence, though they did not arrest for this charge. The judge said:

'Of course, if when the police had arrested Mr. Leachinsky, all they had believed was that Mr. Leachinsky was in unlawful possession under the Act of this bale-if that was their state of mind, at the time of the arrest they could not justify the detention-a wrongful arrest-thereafter by setting up the fact, if fact it had been, that Mr. Leachinsky had committed some other felony of which they were wholly unaware at the time of making the arrest. The law, it seems to me, on that point is quite plain. But if they believed he had committed a felony when they arrested him, if there were reasonable grounds for that belief, and they arrested him because they so believed, that act, which was legal and justifiable at that time, does not become illegal thereafter because for convenience a charge of unlawful possession is brought in Liverpool in order that the real charge of larceny may be prosecuted by the police before the court in Leicester, which was really concerned in the matter. The test as I understand it is what was the state of mind of the police at the time of the arrest. Why did they arrest him? If they arrested him because they believed he had committed a felony and there were reasonable grounds for so believing, they do not lose the protection of the law. And what was not a wrongful act at the time does not become an actionable wrong because thereafter the proceedings in Liverpool are confined to what was really a mere formality, unlawful possession, and the prosecution for felony is relegated to the appropriate court.'

The all-important whether this passage correctly embodies the law. If a policeman arrests without warrant when he entertains a reasonable suspicion of felony, is he under a duty to inform the suspect of the nature of the charge, and if he does not do so, is the detention a false imprisonment?

In the Court of Appeal Scott LJ, strongly insisted that it was a false imprisonment. Arrest, he pointed out, was the first step in a criminal proceeding against a suspected person on a charge which was intended to be judicially investigated. If the arrest was authorised by magisterial warrant, or if proceedings were instituted by the issue of a summons, it is clear law that the warrant or summons must specify the offence. This rule is now embodied in the Criminal Justice Act, 1925, s 32, but it is a principle involved in our ancient jurisprudence. Moreover, the warrant must be founded on information in writing and on oath and, except where a particular statute provides otherwise, the information and the warrant must particularise the offence charged. The famous case of Entick v Carrington, dealing with the illegality of "general warrants" is an illustration of the principle....

When the appeal came before your Lordships' House the arguments which had prevailed before the Court of Appeal were repeated, but it was not, apparently, realised by counsel on either side that there is direct authority, both in text books of acknowledged weight and in cases actually decided, that in normal circumstances an arrest without warrant either by a policeman or by a private person can be justified only if it is an arrest on a charge made known to the person arrested....

....Burn's Justice Of The Peace is a work of acknowledged authority which has gone through more than thirty editions...[T]he author, the Rev Richard Burn, in detail with the law of arrest without warrant. He says (vol. I, p 302) that "where a constable acts without warrant by virtue of his office of constable, he should, unless the party be previously acquainted with it, notify that he is a constable, or that he arrests in the Queen's name, and for what," Hale's Pleas Of The Crown, vol 2, ch X, P 82, dealing with arrest by a private person on suspicion says: "note that in all arrests he must acquaint the party with the cause of his arrest." Archibald's Metropolitan Police Guide (7th ed, p 713) is a more modern book which affirms that the general rule is that, in arresting without warrant on suspicion, the person making the arrest, whether constable or private person, should at the time state on what charge the arrest is being made.

The propositions laid down in the text books are supported by judicial decisions..... What is particularly noteworthy is that in many of these decisions an exception to the general rule is explained and justified, and this indirectly establishes what the general rule is. For example, in Mackalley's case, the decision of the Star Chamber in the Duchess of Rutland's case was followed, to the effect that it is not necessary to state the ground of arrest when the party makes resistance before the person arresting him "can speak all his words." Mackalley's case arose out of an arrest based on a plaint of debt which led to the debtor and his friends resisting the official arrester with fatal results, and it was ruled that "an officer making an arrest, ought to show at whose suit, out of what court, and for what cause he made the arrest, when the party arrested submits himself to the arrest, but not when the party resists." In Rex v Howarth, it is laid down that there is no need to tell a man why he is being arrested when he must, in the circumstances of the arrest, know the reason already. Another qualification may be gathered from the decision of Rex v Ford, to the effect that it is not necessary for a person making an arrest to state the charge in technical or precise language.

These citations.... seem to me to establish the following propositions:

1. If a policeman arrests without warrant on reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.

2. If the citizen is not so informed, but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment.

3. The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.

4. The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraint on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.

5. The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, eg, by immediate counter-attack or by running away.

There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter. These principles equally apply to a private person who arrests on suspicion. If a policeman who entertained a reasonable suspicion that X had committed a felony were at liberty to arrest him and march him off to a police station without giving any explanation of why he was doing this, the prima facie right of personal liberty would be gravely infringed. No one, I think, would approve a situation in which, when the person arrested asked for the reason, the policeman replied: "That has nothing to do with you. Come along with me." Such a situation may be tolerated under other systems of law, as, for instance, in the time of lettres de cachet in the eighteenth century in France, or in more recent days when the Gestapo swept people off to confinement under an overriding authority which the executive in this country happily does not in ordinary times possess. This would be quite contrary to our conceptions of individual liberty. If I may introduce a reference to the well known book, Dalton's Country Justice, that author, dealing with arrest and imprisonment, says: "The liberty of a man is a thing specially favoured by the common law." There are practical considerations, as well as theory, to support the view I take. If the charge on suspicion of which the man is arrested is then and there made known to him, he has the opportunity of giving an explanation of any misunderstanding or of calling attention to other persons for whom he may have been mistaken, with the result that further enquiries may save him from the consequences of false accusation. It must be remembered that in former days arrest was practised not only in certain cases of suspected crime, but as a preliminary in civil suits also.

I entertain no doubt that in the present case the appellants are not exonerated from liability for false imprisonment by satisfying the judge that they had a reasonable suspicion that the respondent had been guilty of theft or of receiving stolen goods knowing they had been stolen, when they never told the respondent that this was the ground of his arrest. Instead of doing so, they gave a different ground which, as Christie admitted, was not a good excuse for arresting him at all.....