Walker v The Commissioner of the Police of the Metropolis, Court of Appeal - Civil Division, July 01, 2014, [2014] EWCA Civ 897,[2014] WLR(D) 289

Issuing Organization:Civil Division
Actores:Walker v The Commissioner of the Police of the Metropolis
Resolution Date:July 01, 2014
 
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Case No: B2/2013/2372

Neutral Citation Number: [2014] EWCA Civ 897

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE

His Honour Judge Freeland QC

1UD11492

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 01/07/2014

Before :

LORD JUSTICE RIMER

LORD JUSTICE TOMLINSON

and

SIR BERNARD RIX

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Between :

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Anthony Metzer QC (instructed by Hodge Jones & Allen LLP) for the Appellant

Mark Ley Morgan (instructed by Metropolitan Police Services) for the Respondent

Hearing date : 21 March 2014

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JudgmentLord Justice Rix :

1. On 12 July 2008 at shortly before 4pm, the claimant, Mr Alexander Walker, got into a fight with the police in Rita Road, London SW8. The incident arose out of a complaint that he had hit his partner, Ms Cadice Lecky. On arrival of the police, Ms Lecky shouted: ``Fucking arrest him. He punched me. Get him the fuck out of here.'' Less than two and a half minutes later, the incident was over, with Mr Walker taken off to the police station in handcuffs. There he was detained for 7 hours before being released on bail. The custody record stated that he had been arrested for ``affray, assault police officer''. On 23 September 2008 Mr Walker was charged with assault of a police officer in the execution of his duty. He stood trial in Camberwell Green Magistrates' Court on 20-21 April 2009 and was acquitted following the close of the prosecution case, on the ground that his initial detention had been unlawful. It followed that the charge that he had assaulted a police officer in the execution of his duty failed on an essential ingredient of the offence. The district judge found that the police officer concerned, PC Adams, had restricted Mr Walker's movements in a doorway, without intending or purporting to arrest him, thereby detaining him unlawfully, and that Mr Walker's reactions were reasonable.

2. It was almost two years later that Mr Walker's solicitors wrote a letter of claim, dated 11 February 2011. His claim form was issued on 2 July 2011. In it he claimed damages for false imprisonment, assault, and malicious prosecution. The trial of that civil claim took place before a judge alone, His Honour Judge Freeland QC, in the Central London County Court, between 1 and 5 July 2013. The judge's reserved and detailed judgment was given on 1 August 2013. Mr Walker's claim failed totally. He rejected Mr Walker's evidence and accepted the police evidence. Mr Walker now appeals with the limited leave of Vos LJ. He was refused permission to challenge the judge's general findings, but his appeal is concerned with three comparatively narrow points arising out of his initial detention and arrest, which, as found by the judge, had preceded the major part of the fight. I should explain that his arrest, although completely secured only after he had been overpowered and handcuffed, had been initiated before the fight and was the catalyst of the violence which then ensued.

3. Apart from the basic facts described above, almost everything else about the incident had been disputed at the trial of Mr Walker's claim, including the circumstances of that initial detention and arrest.

4. Thus, Mr Walker's case and evidence were that, following an argument with his girlfriend and the arrival of the police, PC Adams approached him in a confrontational and aggressive manner. He indicated that he did not want to speak to the officer and told him to leave him alone. However, he found himself blocked in a doorway by PC Adams. He never threatened nor touched the officer, who, without saying anything about arrest, assaulted him. They fell over a wall where PC Adams sought to pin him down and handcuff him. He admitted biting the officer in his attempt to give himself room to breathe. PC Adams punched him in the face a number of times, and another officer, PC Cracknell joined in. Still further officers arrived, his legs were strapped and he was carried to a police van. On his way he was kneed in the stomach and chest. At the station he saw a forensic medical examiner, and his injuries (a black eye, bruising, swellings, scrapes and cuts) were in evidence. At trial, Mr Walker insisted that he had not lost his temper. He denied that PC Adams had tried, or had cause, to calm him down. He was calm. He denied threatening to ``bang'' the officer, or pushing him in the chest. He was attacked without cause. His evidence was generally supported by that of his mother, who was at the scene, but she also gave some evidence which detracted from her son's case, such as hearing PC Adams say ``Calm down mate or you will end up getting arrested'' and the word ``arrest'' being used.

5. The police evidence, on the other hand, was very different. PC Adams gave evidence in accordance with a witness statement made for trial which annexed his MG 11 witness statement which he had drawn up within half an hour of getting back to the police station. He said that on arrival at the scene he heard Ms Lecky say that Mr Walker had punched her. He considered that he had reasonable grounds to suspect Mr Walker of an arrestable offence, but he decided to make some enquiries first in the hope of avoiding making an arrest. Mr Walker was in a doorway and he positioned himself to prevent him getting past. His first words were ``Calm down mate or you will end up getting arrested''. His witness statement said, ``I did not touch the claimant but I made it very clear to him that he was not free to move.'' Mr Walker was trying to get past, and was shouting and swearing in an aggressive manner, agitated, irate and on his toes. Mr Walker threatened to ``bang'' him. The officer again told him to calm down or he would be arrested. Mr Walker's reaction was to say ``who are you, you're just men in suits, just fuck off'' and to push him firmly in the chest. It was at that point that PC Adams decided enough was enough and said that he was under arrest for ``public order''. He did not have time to add ``section 5'' or words to that effect (that is the section of the Public Order Act 1986 which is headed ``Intentional harassment, alarm or distress'' and speaks of the use of ``threatening, abusive or insulting words or behaviour, or disorderly behaviour'' with ``intent to cause a person harassment, alarm or distress''), because at that moment Mr Walker began a fight (``All hell broke loose'') by swinging the handcuffs, which PC Adams was attempting to deploy, towards the officer's face. Nevertheless, it was section 5 which PC Adams had in mind. PC Cracknell came to help, because PC Adams also had Mr Walker's mother and girlfriend to contend with, who were seeking to help Mr Walker. PC Adams was bitten by Mr Walker on his left forearm and his left wedding finger. He was kicked and bloody. Mr Walker's mother and girlfriend were also arrested and taken to the police station. PC Adams' evidence was supported by the evidence of PC Cracknell and PC Barton, and that of a neighbour witness, Ms Buckmaster.

6. The judge preferred the evidence of the police and Ms Buckmaster to that of Mr Walker and his mother. He found Mr Walker to be ``an unreliable and unimpressive witness''. He had made no complaint at the time, and none for two years after his acquittal. Mr Walker had a turbulent and at times violent relationship with Ms Lecky. He had been fighting with her immediately before the arrival of the police and he had remained angry, aggressive and abusive after their arrival. The judge rejected his evidence as to what was said before the fight and who landed the first blow. He also found Mr Walker's mother to be an unimpressive and unreliable witness. She had accepted a caution at the police station, and had made no complaint. She naturally wished to support her son, but even so in cross-examination came to make concessions against her son's interest.

7. On the other hand, the judge found PC Adams to be ``an entirely credible, straightforward and honest witness''. The longer he was cross-examined, the more he impressed the judge, who described his evidence, including his original MG 11 statement, to be compelling, credible and truthful. The judge also accepted PC Cracknell and PC Barton as careful, accurate and impressive witnesses, and the evidence of Ms Buckmaster as reliable.

8. The judge's critical findings were therefore in favour of the police, and I set them out below:

``115...In particular, I am sure that the claimant had not calmed down or ameliorated his behaviour by the time the police arrived, but that he remained aggressive, truculent, objectionable and threatening towards Constable Adams.

116. Of course he was a smaller man, of much slighter build, but I am sure that he reacted aggressively to PC Adams' requests to calm down and that he threatened to bang PC Adams and he pushed him. I am fully satisfied by a very wide margin that the first threat and push came from the claimant...I reject the claimant's evidence categorically and unequivocally that he had calmed down...

117...I reject categorically any suggestion that [PC Adams] was a ``bull in a china shop'' or that he was aggressive or that he was intimidating.

118. I hold, as indeed is accepted as an important fact, that he did not lay physical hands on the claimant at all to start with and I hold that he never in fact laid physical hands on the claimant when he went up to him...

120...I have concluded in the end without doubt that the claimant was aggressive and abusive towards Constable Adams. The claimant was told twice in a measured way to calm down, but he did not. He was and remained in an agitated state and in a state of temper. He threatened to assault and bang PC Adams. He pushed him quite violently in the chest...

121. I am fully satisfied that very shortly after PC Adams arrested the claimant for a public order offence and I am quite sure that he had section...

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