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Published 15 January 2019
The Court of Appeal has handed down its judgment in Parker v Chief Constable of Essex, which is of considerable significance in relation to the level of damages payable in cases of unlawful detention.
The claim arose from a cold case investigation undertaken by Essex Police into the death of Stuart Lubbock. Mr Lubbock was found unconscious in the swimming pool at the home of entertainer Michael Barrymore - real name Michael Parker - in 2001, and was later pronounced dead. Nobody was prosecuted at the time in relation to the death. Essex Police started a full review of all available evidence in 2006. This led to the arrest of Mr Parker and two others in the spring of 2007, on suspicion of offences relating to the death.
Essex had to arrest all three suspects simultaneously, even though they were in different locations, to avoid collusion, and implemented a co-ordinated plan for the arrests. However, on the way to arrest Mr Parker the designated arresting Police officer, DC Jenkins, became stuck in traffic. The arrest could not be delayed, so another Police officer present at the scene, PC Cootes, was tasked to carry out the arrest.
Mr Parker was duly detained and questioned, and in due course released. No charges were ever brought against him.
He issued a claim for substantial damages for wrongful arrest and false imprisonment. He alleged that the arrest destroyed his career, which he had been successfully rebuilding after the adverse publicity at the time of Mr Lubbock’s death.
The legal issues
In English law, a Police officer carrying out an arrest of a person, must personally have reasonable grounds to suspect the person of the offences for which they are being arrested – the ‘O’Hara principle’. The designated arresting Police officer, DC Jenkins, was fully apprised of the facts of the case, and on the Chief Constable’s case, the evidence gathered gave ample grounds for the arrest. However, the actual arresting Police officer, PC Cootes, knew very little – Essex Police had controlled the evidence on a ‘need to know’ basis. He therefore, under O’Hara, did not have reasonable grounds to arrest Mr Parker.
The Chief Constable conceded that the arrest was unlawful for breach of the O’Hara principle, but sought to extend what is known as the ‘Lumba principle’. This is derived from a 2011 Supreme Court case, which held that, where a person had been unlawfully detained by the Home Secretary due to a technical breach of procedure under the Immigration Act, that person should only be entitled to nominal damages if the person could have been lawfully detained in any event under other provisions. Therefore, the Chief Constable argued, the unlawful arrest by the Police should be recognised by an award of nominal damages only, as he would have been lawfully arrested if DC Jenkins had not been delayed in traffic.
At first instance, Mr Justice Stuart-Smith found that:
The Chief Constable appealed to the Court of Appeal, on the issue of damages. Mr Parker cross appealed, arguing that Essex Police as a corporate body did not have reasonable grounds to arrest him. Lord Justice Leveson gave the judgment of the Court of Appeal on behalf of all three judges.
First, he found that Essex Police did have reasonable grounds to suspect Mr Parker of the offences for which he was arrested. He then went on to hold that Lumba should be applied to this case. He set out the test to be used to determine whether nominal damages only should be awarded : what would have happened had Essex Police appreciated what the law required them to do? Looking at the facts, if Essex Police had realised that the arresting Police officer needed to be personally apprised of the facts they would have organised for the arresting Police officer to be briefed, probably by a phone call at the scene, by a senior Police officer.
Therefore, Mr Parker was entitled to nominal damages only.
The test to be applied for determining whether nominal damages should be paid in a claim for wrongful arrest or false imprisonment, is clearly set out in the Court of Appeal’s Judgment. It should be expected to apply not only to claims based on the O’Hara point, but also to a range of claims currently brought for breach of the provisions of the Police and Criminal Evidence Act 1984 (such as for failure to carry out a review of custody after the set periods, or a failure to provide correct information to an arrested person at the time of arrest).
This decision rebalances the law of false imprisonment, permitting those who have been subject to false imprisonment to obtain a legal declaration to that effect but allowing only a nominal award for damages where the person detained would have still been detained had the Police officers appreciated at the time that they were making an error.
It also recognises that the O’Hara principle does not sit easily with modern, complex and sensitive investigations, where not every potential arresting Police officer can or should be fully briefed.
Tom Walshaw of DAC Beachcroft acted for the successful appellant, the Chief Constable of Essex.
Our public sector team deal with cases like this on a regular basis. For more information or advice, please contact one of our experts.
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