B3/2001/1620
Neutral Citation Number: [2001] EWCA Civ 1708
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S  BENCH  DIVISION
(MR JUSTICE MORLAND)
Royal Courts of Justice
The Strand
London

Tuesday  23  October 2001
B e f o r e:

LORD  JUSTICE  LAWS

and

LORD  JUSTICE  SEDLEY

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B E T W E E N:
JOHN  WILSON
Respondent/Claimant
- v -

COMMISSIONER OF POLICE
OF  THE  METROPOLIS
Applicant/Defendant

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(Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4A 2HD
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MR D MACLEOD (instructed by the Solicitor's Department, Metropolitan Police) appeared on behalf of THE APPLICANT

MR L THOMAS (instructed by Christian Fisher, Bloomsbury) appeared on behalf of THE RESPONDENT
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J U D G M E N T
Tuesday 23 October 2001
1.	LORD JUSTICE LAWS: This is a very unhappy case. It concerns events which took place in the course of what amounted to a riot in Central London on the night of 26 June 1996 after England had played Germany in the semi‑final of the European Championship. Since I would grant permission to appeal, I will deal with the matter shortly. 
2.	The point came when the respondent, who was a teenager was (and I use this expression neutrally) knocked to the ground by a police officer in riot gear who collided with him. The question for the court in the proceedings subsequently launched against the Metropolitan Police by the respondent was whether this constituted an unlawful, deliberate assault by the officer on him or not. It was common ground before the trial judge, and is common ground before us, that the judge could only properly find for the claimant at trial if he was satisfied on compelling evidence that the event was to be interpreted as an assault. We have been provided with the well‑known case of Hornal v Neuberger Products Ltd [1956] 3 WLR 1034, which deals with the standard of proof in a case of this kind. 
3.	The judge heard quite a lot of evidence. There is no doubt that he took into account, and was impressed by, certain features which were consistent with, and perhaps assisted, the claimant's case: the lack of any of the usual kind of documentation that one would have expected to have been filled in after an event of this kind and, in particular, the fact that the officer who knocked over the claimant had not come forward and identified himself. 
4.	Both parties are agreed before us, and it may be were agreed before the judge, that the case turned on a traffic video, the camera pointing at the scene where this event took place close to an MOD police car which was being vandalised and set on fire. 
5.	We have watched the video. The judge watched the video many times, and, we understand from Mr Thomas who appears before us for the respondent/claimant, on a larger screen than we have seen. He told us that the judge saw the video perhaps on fifteen occasions. In his judgment the judge said: 
“I saw the video film very many times during the hearing. Each time I became more and more convinced that it was no accidental collision, but a deliberate assault upon the claimant who, innocently but unwisely, had stopped to watch the attack on the police car. To me the video film clearly shows the unidentified officer running along the lane marking on the road with a baton in his right hand, well above shoulder height, with his shield raised in his left hand. He veers to his right towards the attacked police car and when the claimant is stationary to his immediate left, the officer turns quickly to his left and charges into the claimant, felling him to the ground. He pauses and looks down at the claimant who is out cold below him. He then side‑steps to his right and then prances off to his left with his baton still raised. He ran off in the general direction of The Strand.” 
6.	The judge indicated that he was “utterly convinced” that the claimant was the victim of a deliberate unlawful assault. 
7.	For the applicant Commissioner, Mr Macleod has a number of points of detail. For example, he asserts that earlier in his judgment the learned judge had mistakenly indicated that the claimant was some ten feet from the car in question, whereas he was at the most two or three feet. That is not a point that greatly impresses me. 
8.	What has troubled me in this case is the difficulty that I have in apprehending how anyone looking at the video ‑‑ and we have watched it perhaps eight or ten times ‑‑ can have concluded to the standard necessary that it shows a deliberate assault. I do not suggest that what appears on the video is inconsistent with that version of events, but I have already indicated what was the standard of proof that it was the judge's duty to apply. The video camera was clearly some distance from the car and the exact scene of the collision between officer and claimant. The events took place extremely fast. Many people are in the picture and on the scene. It seems to me at the lowest arguable that it is not possible to conclude to the requisite standard that the video shows a deliberate assault. 
9.	For that reason, in my judgment, the Commissioner is entitled to have the matter ventilated on appeal and I would grant permission. 
10.	Before leaving the case, I would like to express my thanks to Mr Thomas who has appeared for the respondent/claimant and made succinct and helpful submissions to us. I would give permission. 
11.	LORD JUSTICE SEDLEY: In the light of the view formed by my Lord, permission to appeal must be granted. 
ORDER: Permission to appeal granted; appeal to be expedited to be heard this term if possible; interlocutory directions to remain undisturbed; liberty to apply if date for hearing on quantum is to be lost; costs to be costs in the appeal.