Case No: B2/1999/0720
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR RECORDER GLANCY QC
BIRMINGHAM COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27th July, 2000 

B e f o r e :

LORD JUSTICE SEDLEY
and 
SIR CHRISTOPHER SLADE
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	THE CHIEF CONSTABLE OF THE
WEST MIDLANDS POLICE		Appellant	
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	OSBORNE EUGENE HEAVEN
	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
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Mr. Richard Perks(instructed by  J.M. Kilbey, Force Solicitor for the Appellant)
Mr. Nicholas Brown (instructed by  McGrath & Co.  for the Respondent)

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Sedley:
This is the judgment of the court.
1.	Mr. Heaven, the claimant, lived in a terraced house in Wolverhampton with his teenage son, Lee, who was known to the police for repeated offending, much of it involving cars.  On 17th November 1992 an unlawfully taken car was found abandoned near the house.  Suspicion fell on Lee – it was never contested that this was entirely reasonable – and at 4.00 the following morning police officers went to the house in search of him.  

2.	The claimant’s account was that he heard a bang and believed his house was being burgled.  He dressed, opened the bedroom door and saw a man in ordinary clothes at the top of the stairs.  He took him to be a burglar and asked him how he had entered the house, then walked past him to switch on the bathroom light in order to see better.  He then saw uniformed officers in the house and called to Lee to get out of bed.  The officers, however, went straight into Lee’s bedroom and arrested him.  The claimant followed Lee and the officers downstairs.  Another officer, WPC Birch, asked if she could go into the living room and when the claimant refused, kicked him on the shin and pushed him into the room.  PC Morgan then swore at him and told the other officers to arrest him, putting his foot against the claimant’s back.  The claimant was handcuffed and taken to the police station barefoot in the rain.  He was eventually charged with assaulting WPC Birch causing her actual bodily harm, assaulting PC Williams and obstructing PC Morgan.

3.	The Chief Constable’s account was that the officers searching for Lee knocked on the front door and the claimant answered it.  He denied that Lee was in the house and then slammed the door shut.  Through the patterned glass in the door WPC Birch saw someone she took to be Lee running up the stairs.  PC Morgan forced the door open and found Lee and the claimant at the top of the stairs.  He arrested Lee and then agreed to wait for the other officers downstairs while Lee dressed.  The claimant stood at the foot of the stairs and told Lee, when he came down, that he was not to go with the officers.  When PC Morgan took hold of Lee, the claimant struck at him but hit PC Williams.  In the struggle which followed, PC Morgan held on to Lee while PC Williams and PC Lewis struggled to restrain the claimant.  WPC Birch came through the front door on hearing the struggle.  The claimant, seeing her approach, tried to shut the door against her and hit her on her lower right leg.  The door was pushed against her leg by the struggle in the hall, injuring it.  She was finally able to free herself when PC Williams and PC Lewis pulled the claimant into the living room.  The claimant was arrested for obstruction and for assaulting PC Williams and WPC Birch. 

4.	About the only thing on which the parties were agreed was that when Mr. Heaven appeared finally before the Wolverhampton Crown Court on an indictment alleging Section 47 assaults on PC Williams and WPC Birch, no evidence was offered.  He was bound over to keep the peace for a year – the Chief Constable says voluntarily, Mr. Heaven says without his consent.  

5.	Mr. Heaven obtained legal aid to bring proceedings against the Chief Constable as the officer vicariously liable for the torts committed against him of trespass, assault, false arrest and malicious prosecution.  At the conclusion of the trial before Mr. Recorder Glancy QC and a jury, the following written questions were answered by either majority or unanimous verdicts in the senses indicated:

1.	ENTRY
Has the defendant satisfied you that:
1.1	on 18 November 1992, shortly after 4.00 am, Osborne Heaven answered the front door of 10 Chesterton Road, The Scotlands, Wolverhampton, before PC Morgan forced it open.
											No.

1.2	WPC Birch saw a person who she thought was Lee Heaven, through the glass panel in the front door of 10 Chesterton Road, before PC Morgan forced that door open.
											No.

2.	ARREST
Has the defendant satisfied you that:
2.1	Osborne Heaven stood at or near the bottom of the stairs in the house and prevented Lee Heaven from coming downstairs after Lee had got dressed.
											No.

2.2	Osborne Heaven threw a punch at one of the Police Officers which hit PC Williams in the face.
											No.

2.3	Osborne Heaven intentionally pushed the front door of the house thereby causing it to strike WPC Birch on her right leg.
											No.

3.	ASSAULT
Has Osborne Heaven satisfied you:

3.1	WPC Birch kicked Osborne Heaven on the shin while he stood in the doorway of his living room.
											No.

3.2	WPC Birch pushed Osborne Heaven while he stood in the doorway of his living room.
											No.

4.	PROSECUTION
Has Osborne Heaven satisfied you:

4.1	That PC Williams did not genuinely believe the account of the events he gave to the Custody Sergeants which led to Osborne Heaven being charged with the three offences with which he was charged.
										Yes.

Thus the jury found that the officers had committed a trespass to the claimant’s home and had unlawfully arrested him but had not otherwise assaulted him;  and that PC Williams had maliciously caused him to be prosecuted.  Judgment was entered for him in the previously agreed sums of £2,000 for trespass, £1,500 for false imprisonment  (wrongful arrest seems to have been subsumed in false imprisonment.) and £5,000 for malicious prosecution, a total of £8,500.  The Recorder awarded the claimant two thirds of his costs.  He also gave the Chief Constable permission to appeal against the verdicts and the claimant permission to appeal against the costs order.  

6.	Before going any further it is necessary to say something about the grant of permission to appeal.  The Recorder said to Mr. Perks, counsel for the Chief Constable:

“I have no hesitation in granting you leave to appeal.  It seems to me, as I think I have said already this morning, that the verdicts are seriously inconsistent and, for what it is worth, in my judgment, it seems difficult to understand what version of events the jury have accepted;  what they think actually happened in that house that early morning of that day and how the different findings can possibly be reconciled.  But it may be that their lordships in the Court of Appeal, who will understand these matters far better than I do, will find some way of dealing with those inconsistencies.”

7.	In our judgment the Recorder should not have given the Chief Constable permission to appeal.  The verdicts were not, as a matter of law, inconsistent and Mr. Perks has quite rightly not attempted to argue that they were.  It was perfectly possible for the jury to take the view that the police, on the one hand, were not justified in breaking into the house and arresting Mr. Heaven;  that it followed from the want of justification that Mr. Heaven had made out both the want of reasonable and probable cause for prosecuting him and the element of malice in law;  but that Mr. Heaven for his part had not persuaded them that the police had gone further and assaulted him in the way he described.  The issues argued by Mr. Perks, to which we will come, were necessarily far narrower than the Recorder’s second ground, namely that the verdicts were incomprehensible in the face of the evidence. 

8.	None of the issues, however, concerns the Recorder’s summing up.  This has escaped criticism from either side, and its quality has made the appeal easier than it would otherwise have been to determine.  

9.	Mr. Perks’ first ground of appeal is that the Recorder wrongly permitted Mr. Brown, for the claimant, to base his case upon an argument that the events described by the officers could not have occurred in an entrance hall as constricted as the claimant’s.  At the start of the trial counsel had agreed some sketch plans of the premises which showed that the front door, hinged on the right from the street side opened on a radius of 33 inches into a hall which was 55 inches deep and just under 50 inches wide.  Ahead was the staircase;  to the left was the living room.  It is Mr. Perks’ submission that the Recorder should have stopped Mr. Brown suggesting to witnesses and submitting to the jury that the incident the police described was geometrically impossible.  

10.	We are quite unable to accept this submission.  It would undoubtedly have been better if the jury had been taken to have a look at the house, but Mr. Brown’s application to this end was successfully resisted by Mr. Perks.  The latter can hardly now complain if Mr. Brown, doing his best with the available materials, argued his case in the way we have described.  It was, no doubt, simplistic, but simplicities often have virtue in the eyes of a jury.  Mr. Perks’ submissions to us as to why Mr. Brown’s simple proposition could be wrong were cogent;  but the jury, to whom he also made them, evidently found them unimpressive, and that is what the jury were there for.  

11.	Secondly, Mr. Perks criticises the Recorder for allowing Mr. Brown to leave counsel’s bench and to get WPC Birch to demonstrate, using him as the “door”, what she said had happened.  This, Mr. Brown has confirmed, is something which he did attempt.  The Recorder rapidly stopped it because it was becoming unseemly. This kind of thing can happen in a trial;  but we can see no foundation for the suggestion that it had a deleterious effect of any kind, much less one which favoured the claimant.  

12.	Thirdly, Mr. Perks challenges the Recorder’s decision, in the exercise of his residual discretion under the Civil Evidence Act 1968, to admit a statement and an incomplete manuscript letter from a neighbour, Mrs. Susan Smith, who had been awakened by the noise.  Clearly sympathetic to Mr. Heaven, who was a good neighbour, she described being awakened by the door being broken open and later seeing him taken away in handcuffs in the rain.  There was, as Mr. Brown had to accept, no excuse or explanation whatever for the failure to trace Mrs. Smith with a view to calling her;  but the Recorder, anxious – as he expressly said – to be visibly fair to Mr. Heaven, let the documents be put in evidence.  

13.	This ground of appeal is of little substance on examination.  Neither the letter nor the statement asserted any fact which controverted  the Chief Constable’s case.  In his summing up, nevertheless, the Recorder went out of his way to warn the jury against giving any weight to it because of Mrs. Smith’s absence from the witness box.  As an exercise of discretion, his initial decision can in any case be impugned only if he can be shown to have erred in principle.  Far from having done so, it seems to us that the decision was an innocuous one, intended to reassure Mr. Heaven that he was getting a fair hearing and capable of doing no appreciable harm to the defendant.  

14.	The fourth ground of appeal argued is that the Recorder ought to have discharged the jury following a reference by Mr. Brown in his opening speech to the West Midlands Serious Crime Squad.  The officers involved in this case had, of course,  nothing to do with the long-disbanded and discredited group of West Midlands police officers.  It was in opening his case to the jury and reminding them that it was they who stood between the citizen and police malpractice that Mr. Brown mentioned the Serious Crime Squad as an example of how serious such malpractice could be.  Mr. Perks objected, and at the Recorder’s request Mr. Brown made it clear to the jury that he was not suggesting that the Serious Crime Squad had anything to do with the present case.  There the matter rested.

15.	Mr. Perks submits that the damage done by Mr. Brown’s remark could not be undone.  We find this fanciful.  We are not persuaded that the remark was improper in the first place;  but if it was, it was promptly qualified and the situation defused under the Recorder’s careful eye..  

16.	Mr. Perks’ fifth ground of appeal is that the Recorder ought to have withdrawn the case of malicious prosecution from the jury.  It had, Mr. Perks submitted, been mentioned only once in Mr. Brown’s opening and had not been put in terms to PC Williams, the officer who had related the alleged facts to the Custody Sergeant and so procured the prosecution.  All that had been said was that PC Williams had confirmed in his evidence in chief that he honestly believed in the factuality of the matters charged.  

17.	Mr. Brown accepts, necessarily, that it was for him to satisfy the jury on the evidence that there was not only no reasonable and probable cause for prosecuting Mr. Heaven but that at least one of the officers had an improper motive in procuring the prosecution.  At several points in his cross-examination of PC Williams Mr. Brown  put squarely to him that he was fabricating his account.  In his closing speech he suggested to the jury that the reason why the officers had given false accounts of the incident which implicated Mr. Heaven in criminal offences was to protect themselves against the accusation that they had arrested Mr. Heaven and taken him barefoot from his house for no good reason – in other words, that there was an improper motive for the charges.  

18.	 It is true that this is the only issue on which the jury found a burden of proof discharged  The Recorder’s direction to them made it clear that it was necessary for them to be satisfied that PC Williams did not genuinely believe the account he gave to the custody sergeant.  Their verdict on this was consistent with their previous conclusion that the police had not satisfied them that they had any reason for arresting Mr. Heaven in the first place.  They were entitled to reach both views.  The Recorder’s direction, in this respect as in all others, was not open to criticism.  For the same reasons  there was sufficient evidence of malicious prosecution to go to the jury in the first place:  Mr. Heaven had given an account which, if materially true, was inconsistent with any possibility of genuine belief in his guilt.  

19.	Lastly, Mr. Perks contends that the verdicts were perverse in the face of the evidence.  He points out in particular that Mr. Heaven, who is almost blind, claimed to have come out of his bedroom, seen a man who appeared to be a burglar on the landing and walked straight past him into the bathroom to turn the light on.  This oddity, he suggested, had been compounded at trial when Mr. Brown in his final speech invited the jury to accept the evidence of the police doctor, Dr. Sharma, who had recorded Mr. Heaven as telling him later on the night of the arrest that on getting up he had looked out of the window and seen a police car.  Mr. Brown, for his part, was unrepentant about adopting some of the Chief Constable’s evidence as his own because it afforded an explanation of why Mr. Heaven might have walked past the “burglar”.  It was in any case, he argued, no more inconsistent than the divergent accounts given by the four police officers.  

20.	It was inevitable that inconsistent and in places possibly incoherent accounts were going to be given more than six years after the event.  This in itself does much to explain the reliance of the jury for the most part on burdens of proof.  But it does nothing to demonstrate perversity in their conclusions.  On the whole they can be seen to have done their competent best, with the assistance of a good summing up, to relate the evidence to the legal issues.  

21.	These are the reasons why at the conclusion of the hearing we dismissed the appeal.  It is a matter of  regret that an unlimited grant by the Recorder of permission to appeal had set the grounds at large, with the result that some very weak points were argued.

22.	It is clear from the transcript that the Recorder gave neither side an opportunity to address him on the allocation of costs before ordering the Chief Constable to pay two thirds of the claimant’s costs. In the circumstances the award of costs cannot be regarded as a proper exercise of discretion.  It falls therefore to us to decide afresh what was the proper award.  As we indicated at the conclusion of the hearing, both members of the court took the view that there was no reason to deprive the applicant of any of his costs as against the Chief Constable.  We did, however, direct that the legal aid taxation of his costs should not include the costs attributable to calling Mr. Bannerjee, the surgeon who gave evidence for the claimant, whose evidence contributed nothing to the case.  For the rest, all the issues arose out of the same series of facts and could not appropriately be segregated.  The claimant had succeeded on them in relation to three of his four heads of claim and secured substantial agreed damages.  

23.	The claimant, as respondent, is also to have his costs in this court.  Having heard submissions upon it, we do not consider that the obtaining of transcripts of the evidence of all the police officers was an unjustified expenditure on the claimant’s part.  Mr. Brown’s advice that it might be necessary in order to rebut the allegation of perversity in the verdicts was tenable advice.  There will be a legal aid taxation of the claimant’s costs in this court.

24.	The parties have agreed that, in order to save the costs of a further attendance, and the court’s conclusion having already been given in open court, this judgment is to be handed down in writing and made available to the public and the press without  need for the parties’ attendance.

Order:  Appeal dismissed.
(Order does not form part of approved judgment.)