B3/2000/3277 
Neutral Citation Number: [2001] EWCA Civ 294
IN THE SUPREME COURT OF JUDICATURE              
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Martineau)

                                    Royal Courts of Justice
                                    Strand
                                    London WC2
 
                          Tuesday, 13th February 2001

B e f o r e :

LORD JUSTICE THORPE
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SUSANNE OKOYA
Applicant

‑ v ‑

METROPOLITAN POLICE SERVICE
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(Computer Aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171‑421 4040
Fax No: 0171‑831 8838
Official Shorthand Writers to the Court)
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MR. L. THOMAS (instructed by Messrs Bindman & Partners, London, WC1) appeared on behalf of the Applicant.

MR. S. WALSH (instructed by The Solicitors Office, The Metropolitan Police Service) appeared on behalf of the Respondent.

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J U D G M E N T
1.	LORD JUSTICE THORPE: This is an application for permission to appeal a judgment of His Honour Judge Martineau given in the Central London County Court on 6th October 2000. As an application for permission it would ordinarily be heard without notice, but, as a result of what is said to have been a request from my clerk, the defendant police authority are here today by Mr. Walsh of counsel who appeared in the court below. I am grateful to Mr. Walsh for coming. He has considerably assisted the determination of this application since he has a good deal of knowledge, which is not open to either me or to Mr. Thomas, who has come into the case to make the application on behalf of the applicant. There has been a change of solicitors since the conclusion of the trial, and counsel who appeared for the claimant in the trial has been replaced by Mr. Thomas.
2.	Mr. Thomas, by his amended notice of appeal and by his skeleton argument, says that Judge Martineau was wrong in law to conclude that the claimant's arrest was lawful, for reasons to which I will come in a moment. The circumstances in which Judge Martineau came to give a ruling were that there had been an extensive trial on oral evidence, and issues of fact had emerged which were crystallized into a number of questions which were put to the jury for their determination. I do not know what those questions were. I do not know how they were answered but Mr. Walsh says that they were answered in the defendant's favour, and that was the consequence of evidence from the claimant which was simply belied by three contemporaneous video recordings: (1) the shop recording which would have been the property of the book‑maker, William Hill; (2) a video taken by one of the team of arresting officers, and (3) a video subsequently taken in the custody suite. That begins to explain some of the passages in the aftermath of judgment where the judge questions whether legal aid should ever have been extended to the claimant for what he ultimately describes as a quite hopeless case. So I have to balance, on the one hand, the possibility that the judge was wrong in law and therefore erroneously withdrew the issue of damages from the jury, against the overall background that the case appeared to him to have been absolutely hopeless. Certainly, counsel who appeared in the court of trial does not seem to have been crushed by the judge's observations, since he made an application for permission to appeal which the judge inevitably refused.
3.	I turn to the judge's reasoning of his conclusion on the issue of law. The issue in question with which I am concerned is whether the arrest of the claimant in the King's Cross William Hill betting shop was lawful or not. The circumstances were that the arresting team believed that the claimant was a suspected drug dealer. They had made a mistake as to the claimant's identity and that mistake led them to arrest the wrong person. There is no doubt at all that in carrying out that arrest they exercised force which the judge considered to be considerable and inferentially excessive unless justified by all the circumstances. The judge found that justification in two particulars. The nature of the arrest was to seize the claimant by the throat, and the judge concluded that the arresting officers sincerely believed that the claimant was a cocaine dealer who had, immediately before the arrest, transferred her stock in trade from hand to mouth and was about to swallow. The judge concluded that in those circumstances it was reasonable for the officers to seize the claimant about the neck and to apply pressure because, were she to swallow, the drug would be or might be highly dangerous to her and, secondly, it was important that the arresting officers should retrieve the drug as evidence that would substantiate prosecution and conviction.
4.	Whether the judge was right in that process of reasoning is open to question. In my view, it is at any rate within the boundary of the arguable. But what is the point in granting permission to this applicant if ultimate success on the point of law would only be to revive a claim that was bound to rejection in the jury room on the facts? I do not know enough about this case to reach that conclusion, and Mr. Thomas for the applicant asserts that the medical evidence of physical injury would certainly justify a jury in bringing in an award that was substantial rather than nominal. I resolve this dilemma, therefore, by granting permission but directing that, before the case goes further in this court, the parties should be invited to submit to this court's ADR scheme. On any view this is a case which should be resolved by negotiation rather than by the extensive and expensive process of appeal, with the prospect only of an order for retrial. The reality of the case might well be that this is an application which should have been concluded today in the way that Mr. Walsh submits. On the other hand, it seems to me that I could not in conscience reject the argument that Mr. Thomas seeks to advance on the narrow point of law. That then is the direction. Permission is granted but there will be no further steps in the appellate process until the parties have received and responded to a letter of invitation from this court to submit their differences to this court's ADR scheme. The scheme has had considerable success in the past in resolving police damage cases. I see no reason why, with good sense, this case should not also be similarly resolved.
Order: Application allowed as per judgment.