Stuart- Smith J
The case is a useful illustration of the approach to be adopted in assessing the counterfactual where a number of possible scenarios are advanced in claims for compensatory damages in tort.
On 14 June 2007 Mr Parker (who is better known as Mr Michael Barrymore) was arrested in London on suspicion of the rape and murder of Mr Stuart Lubbock. Mr Lubbock had died after being found in the swimming pool at Mr Parker’s home in Essex on 31 March 2001. In September of the same year the Defendant indicated that no further action would be taken against Mr Parker. To date no one has been charged in relation to the death of Mr Lubbock.
Mr Parker made a substantial claim for damages against the Defendant alleging that his arrest in June 2007 was unlawful and that he has suffered loss and damage as a result. The Defendant subsequently conceded that the arrest of Mr Parker was unlawful, because the arresting officer did not have the necessary grounds for suspecting that Mr Parker had committed the offences for which he was arrested; O’Hara v Chief Constable of RUC  AC 286 at 291H (“The O’Hara principle”).
The case came before Stuart-Smith J because the Defendant asserted that Mr Parker was not entitled to anything more than nominal damages because (the Defendant asserted) he could and would have been arrested lawfully if he had not been arrested unlawfully; therefore the unlawfulness of the actual arrest made no difference and the Claimant should only be entitled to nominal damages in the circumstances (relying on R (Lumba) v SSHD  UKSC 12,  1 AC 245 (“The Lumba principle”)).
The Defendant’s case
The Defendant’s case was that the officer nominated to arrest Mr Parker, J, had become stuck in traffic and could not in the circumstances have attended to make the arrest. The arrest was time sensitive and had to be made there and then “come what may”. Although the actual arresting officer, C, had arrested Mr Parker unlawfully because he did not have in his mind the required reasonable grounds to suspect that Mr Parker had committed the offence nor the reasonable grounds for belief that arrest was necessary (“the statutory grounds for arrest”) another officer, T, was, on the balance of probabilities, likely to have arrested Mr Parker lawfully as officer, T, would have telephoned J and been provided with the necessary information so as to be able to form the statuary grounds for arrest in his (T’s) mind
As Stuart-Smith J pointed out the reasoning contained a fundamental flaw in assuming as the starting point for the counterfactual that T would have appreciated that he was inadequately briefed and not in a position to arrest the Claimant lawfully. That was the wrong starting point both in principle and on the evidence. On principle, the starting point is simply that the tort was not committed i.e. that C did not arrest the Claimant unlawfully. The starting point does not require or permit the assumption that the tortfeasor did not commit the tort because he realised that if he acted in a given way it would be tortious and modified his conduct so as to act lawfully. The counterfactual may include consideration of what the actual tortfeasor might otherwise have done; but to start with the assumption that he would (on the facts of this case) have appreciated “the O’Hara point” assumed what the Defendant was obliged to prove if it were accepted by the Court. On the facts the same applied to T, the officer whom the Defendant asserted would have arrested Mr Parker lawfully.
Mr Justice Stuart-Smith held that:
(i) There was information available to the police that could have provided an arresting officer
with reasonable grounds for a lawful arrest; but
(ii) There was only one designated Arresting Officer who had sufficient information and had
been sufficiently briefed to enable her (J) to arrest Mr Parker lawfully. J was not present at the time of the unlawful arrest; and
(iii) It was clear that no officer at the scene had in mind the O’Hara principle. Therefore if Mr Parker had not been unlawfully arrested as and when he was, he would have been unlawfully arrested by one of a number of other police officers (e.g. T) who were at the scene.
(iv) The Defendant had failed to prove that, if not arrested unlawfully as he was, Mr Parker could and would have been arrested lawfully;
(v) In the circumstances Mr Parker was entitled to recover more than nominal damages.
A further note
The reasoning in the case has another interesting point for lawyers who undertake civil actions against the police. An often relied on reason for necessity to arrest pursuant to s.24 (4) (e) PACE 1984 is that it provides an opportunity for a suspect to confess, particularly where two or more suspects may be arrested at the same time and then isolated from each other prior to interview.
As Stuart-Smith J pointed out there is a difference between facilitating these objectives and the statutory test. The test is whether there were reasonable grounds for believing that it was necessary to arrest the Claimant to allow the prompt and effective investigation of the offence or the Claimant’s conduct – one had to consider“even though arresting may allow prompt and effective investigation, it is not necessary to arrest because prompt and effective investigation is possible without doing so;” per Stuart-Smith J
I suspect that we have not heard the end of this case and it is one to watch out for next year.
27 September 2017