Case No: B2/2007/2758
Neutral Citation Number: [2008] EWCA Civ 1588
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CANTERBURY COUNTY COURT
(HIS HONOUR JUDGE MITCHELL)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 17th December 2008

Before:

LORD JUSTICE WARD
LORD JUSTICE JACKSON
and
LORD JUSTICE AIKENS

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Between:

	ROBERTS
	Appellant	
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CHIEF CONSTABLE OF KENT	
Respondent	

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Mr P Roche (instructed by Deighton Guedalla) appeared on behalf of the Appellant.
Mr M Ley-Morgan (instructed by Berrymans Lace Mawer) appeared on behalf of the Respondent.
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Judgment
Lord Justice Aikens:

1.	This is an appeal from the judgment of HHJ Mitchell given in the Canterbury County Court on 16 November 2007 following a trial which took place over several days earlier that month.  Permission to appeal was refused on paper by Ward LJ, but was given after an oral hearing by Waller and Dyson LJJ, on limited grounds only.  I will expand on what that ground is once I have explained how the case arises.

2.	The appellant, Mr Roberts, is a retired solicitor’s clerk who was, at the relevant time, 57 or 58 years old.  His claim against the Chief Constable of Kent is for personal injuries suffered as a result of being bitten by Police Dog Oscar (“PD Oscar”)on 22 September 2002.  At the time PD Oscar was being handled by his police dog handler PC Timothy Harris, who is a trained dog handler.  PC Harris was on duty in the area of the Maidstone Road in Medway, Kent.  That is an area which is adjacent to the M2 motorway.

3.	The judge found detailed facts.  There is no appeal on the facts as found by the judge.  In particular, it is now accepted that the judge was correct to accept PC Harris’s version of the events which led to Mr Roberts being bitten by PD Oscar.  I therefore take the facts from the judgment of the learned judge.

4.	At the time, there was a great deal of construction work going on in relation both to the M2 motorway itself and also the new high-speed rail link between London and Dover for use by the Eurostar train service.  Adjacent to the motorway, at a point just above Stoney Lane, there was a compound surrounded by a high fence made of wire.  It was possible to park a car or two cars just off the road near to the compound.  It is at that spot that the events took place which give rise to the present claim.  

5.	On 22 September 2002 Mr Roberts had been in London with his friends, who included Mr Roy Dixon and three others.  It was the day of the “Liberty and Livelihood march” in London, better known as the “pro-foxhunting march”.  Mr Roberts had a lot to drink that day: he consumed about ten pints of beer in London and then had about a half a bottle of wine on the train back from London to Sittingbourne earlier that evening.  

6.	Mr Roberts had left his car, a Toyota Corolla, at Sittingbourne station.  At some stage he had agreed to take Mr Roy Dixon home.  At Sittingbourne, Mr Roberts drove the car and Mr Dixon got into the front passenger seat.  Mr Roberts and Mr Dixon had been discussing whether to get a Chinese takeaway meal and eat it at the house of a friend of Mr Roberts, Miss O’Hanlon, who had looked after Mr Roberts’ two dogs for the day.  Mr Roberts stopped in the area adjacent to the compound so that he could get out Miss O’Hanlon’s telephone number and give it to Mr Dixon.  

7.	Whilst Mr Roberts’ car was parked it was spotted by PC Harris, who was in his police van with PD Oscar in his cage in the back.  PC Harris was on his way to Rochester aerodrome to exercise Oscar.  At some stage PC Harris saw Mr Roberts’ car and was concerned.  That was because there had been a number of thefts reported at that compound.  So PC Harris turned his van round, put on the blue flashing light and ended up parked behind Mr Roberts’ car.  The police van’s ordinary lights were also flashing.  

8.	PC Harris got out of his van and went to the driver’s side of the Toyota.  He saw that there were two white males in the car and he thought that they were aged about 50 or so.  He tapped on the window but got no response.  He tapped again more loudly.  He got no response again, so he opened the door and asked the two inside if they were all right.  PC Harris noticed that inside the car it smelt strongly of alcoholic liquor.  PC Harris concluded that Mr Roberts had been drinking, as indeed he had.  He asked Mr Roberts if he had been drinking and Mr Roberts replied “no”.  At that stage the car’s engine was running.  PC Harris asked Mr Roberts to turn off the engine.  Mr Roberts would not do so, so PC Harris lent over and took out the ignition key.

9.	PC Harris then asked Mr Roberts to get out of the car and join him at the rear of the vehicle; that is, between his car and the police van.  Mr Roberts refused.  PC Harris wanted to give Mr Roberts a breath test as he thought that Mr Roberts had been driving whilst over the legal limit.  PC Harris told Mr Roberts he wished to give him a breath test.

10.	Eventually Mr Roberts got out of the car and went to the rear of it.  PC Harris said that he could smell alcoholic liquor on Mr Roberts’ breath at that stage.  PC Harris asked Mr Roberts to take a breath test and asked him to wait there whilst he fetched the test kit from the police van.  As PC Harris reached into the van, he saw Mr Roberts running away past his car and along the fence towards the compound gates.  PC Harris concluded that Mr Roberts did not wish to be breathalysed and was trying to escape.  PC Harris shouted to Mr Roberts to stop.  He did not.  PC Harris shouted to him again to stop.  He said that if Mr Roberts did not stop he would send the police dog.  Mr Roberts did not stop.  At that stage PD Oscar was taken out of his cage in the van.

11.	PD Oscar did not have a collar on him nor did he have a leash.  The judge found that at first PC Harris held the dog by the scruff of his neck.  PC Harris called to Mr Roberts again to stop and said that he would otherwise let the dog on him.  Mr Roberts did not stop but ran towards the compound gates.  PC Harris then shouted “Stop him” to the dog, which is the dog’s order to go and seize a man who is running away.  

12.	PC Harris’s evidence - which the judge accepted -was that he wanted to pursue Mr Roberts for an offence, that of driving whilst over the prescribed limit of alcohol.  PC Harris knew the area and knew the compound.  PC Harris feared that Mr Roberts would get through the compound and on to the motorway, which PC Harris knew was possible.  He knew that it could be done to try and escape from the police.  

13.	When the dog was let go, Mr Roberts was trying to climb the compound fence.  It was accepted at the time that the dog was a well-trained police dog and that PC Harris was a well-trained police dog handler. The dog was trained to look for someone running and then to try and stop that person.  The dog would try to grab the person’s right arm to achieve this object.  If the person stopped running, the dog would circle the person or stand back and bark.  

14.	PD Oscar ran towards Mr Roberts and barked at him.  Mr Roberts failed to climb over the fence and dropped to the ground.  At that point the dog did not bite Mr Roberts.  PC Harris, who had a torch, was trying to get in radio contact with other police officers to assist him and he was also trying to catch up with Mr Roberts.  As he did this, Mr Roberts was saying to the dog “Get off, stupid dog” or words to that effect.  He was also raising his arms so that the dog could not get them and he was batting and pushing the dog off. 

15.	PC Harris saw PD Oscar bite Mr Roberts’ right arm as Mr Roberts was running along the fence, which was on Mr Roberts’ left side.  This slowed Mr Roberts down and he tried to kick the dog, who held on to Mr Roberts’ arm.  At this point PC Harris caught up with Mr Roberts and the dog but PC Harris was then hit across the throat by one of Mr Roberts’ arms.  PC Harris continued to tell Mr Roberts to stand still but he got no response.  He asked Mr Roberts to stop and give himself up, but Mr Roberts ran towards his car, saying at some stage “Get lost.”  

16.	At this point PC Harris had hold of PD Oscar.  PC Harris warned Mr Roberts again that if he continued to move he would send in the dog.  PC Harris did not want Mr Roberts to get back to his car as he did not know what might happen then.  PC Harris warned Mr Roberts again but he took no notice.  

17.	PC Harris released PD Oscar to stop Mr Roberts and then PC Harris ran with the dog towards Mr Roberts.  PC Harris grabbed some of Mr Roberts’ clothes whilst Mr Roberts was kicking and moving his arms.  PC Harris heard the dog yelp.  PC Harris was hit on the right side of his face by Mr Roberts at some stage whilst PC Harris was trying to restrain Mr Roberts and get him onto the ground.  There was a struggle between the two men and they fell to the ground together.  At this stage PD Oscar was biting Mr Roberts, but PC Harris did not know where.  A police dog is trained to bite a person who is fighting a police officer and who is not complying with an order from the police officer and who is on the ground.  Moreover if the dog is punched or kicked the dog is trained to fight back.

18.	PC Harris then called off the dog.  Mr Roberts stopped struggling and got up and went towards his car.  PC Harris decided that the dog was having no effect on Mr Roberts, who appeared to have no fear at all of the dog or being bitten.  Therefore PC Harris decided to put the dog back into his cage in the police van.  At this point PC Harris still wanted Mr Roberts to stand still.  He called on Mr Roberts to do so and tried to stop him with his hands but Mr Roberts would not stop.  PC Harris again warned Mr Roberts to stop and give himself up.  Mr Roberts took no notice.  PC Harris decided at that stage that he must use CS gas spray to stop Mr Roberts.  PC Harris used the spray once for a burst of two seconds.  That was effective.  He handcuffed Mr Roberts and then other policemen arrived.

19.	Eventually an ambulance that had been called took Mr Roberts to Medway Hospital.  The injuries that Mr Roberts suffered as a result of the dog bites are, briefly, as follows:
(1) a bite on the neck which exposed the external jugular vein;
(2) a bite on the right middle finger and on the base of the right hand; 
(3) seven bites on the right forearm and seven on the left forearm; 
(4) a 15-centimetre laceration of the left thigh, which was deep and exposed the long saphenous vein ; and 
(5) a triangular incision on the left thigh.  

20.	We have seen photographs of all these injuries and they are undoubtedly very nasty.  Mr Roberts needed three operations to deal with them and he stayed in hospital for eight days.  He still has scarring and the area above the scar on his neck has altered sensibility, which will probably be permanent.

21.	The claim was pleaded on the basis of assault, unlawful arrest, false imprisonment and, for reasons I need not go into now, malicious prosecution.  The only relevant cause of action now is that of assault.  Strictly speaking. I think the correct cause of action of Mr Roberts is for damages for trespass to the person, in particular for damages for the tort of battery.  The infliction of unlawful force on the person of another is a battery and is a tort.  It is accepted in this case that if the actions of PC Harris in releasing PD Oscar or ordering the dog to detain Mr Roberts at the time he was trying to get back into the car were unlawful, then the Chief Constable of  Kent Police, the respondent on the appeal, would be vicariously liable for that battery and he would therefore be liable to Mr Roberts.  That is because the injuries to Mr Roberts were inflicted in the course of PC Harris and PD Oscar’s duties on 22 September 2002.

22.	However, the Chief Constable’s defence, accepted by the judge below, was and is that the actions of PC Harris and PD Oscar were lawful.  Again it is accepted that a trespass to the person, in particular a battery, can be justified by the defendant, or someone for whose acts the defendant is liable, for various reasons.  The relevant reason here is that set out in section 3 of the Criminal Law Act 1967, which by section 3(2) of that Act replaces all previous common law rules.  Section 3(1) empowers any person:

“to use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or of persons unlawfully at large.”

23.	It is accepted, on the basis of statements by Viscount Dilhorne at page 178 of Farrell v the Secretary of State for Defence [1980] 1 WLR 172, that s.3(1) may provide a defence to a civil action for assault or battery.  The question to be determined is whether the defendant (or user of the force) used such force as is reasonable, in the circumstances in which he was placed, in the prevention of crime, or in bringing about or assisting in the lawful arrest of an offender or suspected offender.

24.	It is accepted by Mr Roche, who appears on behalf of Mr Roberts on this appeal, that PC Harris was, from the moment that Mr Roberts ran off from the rear of his car, attempting to effect a lawful arrest of Mr Roberts for two suspected offences.  The first was driving with excess alcohol.  The second was failing or refusing to give a breath specimen.  It is common ground that the onus of establishing the defence of using reasonable force by the use of the police dog lay upon the defendant, ie the Chief Constable of Kent Police.  Therefore Mr Roche accepts, on behalf of the appellant, that if the force used by PC Harris by involving PD Oscar was, in the circumstances, reasonable, that is a valid defence to the claim of Mr Roberts.  

25.	The argument at the trial centred on this issue, effectively.  In giving reasons for granting permission to appeal, Dyson LJ stated that permission was granted only to argue the “reasonable force” argument.  That is, there was no permission to challenge any other findings.  Mr Roche confirmed to us that the appeal was confined to the issue of the use of the dog and was not concerned with the use of CS gas.  He also confirmed that the appeal was confined to the claim for damages for trespass to the person and that any argument concerning alleged negligence was no longer pursued.

26.	The judge heard evidence from two expert dog handlers, Mr Sherwood on behalf of Mr Roberts and Mr McIver on behalf of the Chief Constable of Kent Police.  They had each produced a report and they produced a joint experts’ report.  In that report it is recorded that the experts agreed as follows: 

“Points of agreement 
It is agreed that PC Harris’ initial employment of the dog to pursue Mr Roberts was the correct course of action in the circumstances described by the officer.  In PC Harris’ account Mr Roberts then attempted to climb a fence before dropping to the ground and running again.  Police Dog Oscar continued to chase Mr Roberts and detained him by the right arm. The dog was not re-sent by the officer but was allowed to continue the pursuit.  It is agreed that this was the correct course of action by the officer.  

It is agreed that, at all times, the police dog reacted in a manner to which it had been trained, both when tasked to chase and detained by PC Harris, and when acting in defence of itself and PC Harris.  

It is also agreed that the dog and handler team had received frequent training supervised by ACPO accredited instructors and, whilst it may not fully have met with ACPO recommendations, any variance was minimal and unlikely to have any adverse effect on the team.”

27.	The judge concluded (at paragraph 136 of his judgment) that the Chief Constable had established that the use of force in the circumstances was reasonable.  It is that conclusion that Mr Roche challenges on this appeal.

28.	Mr Roche’s argument was put with admirable clarity and conciseness.  I hope it can accurately be summarised as follows:  
(1) Whilst Mr Roche accepts that in principle reasonable force can be used in the course of assisting in the arrest of a suspected offender, that must always be reasonable and proportionate -- see Pollard v the Chief Constable of West Yorkshire Police EWCA Civ 732, a decision of the Court of Appeal dated 28 April 1998.  
(2) If a police dog is released so as to stop a suspect or offender, there must be a risk that the dog will bite the person to be stopped, particularly if that person resists.  
(3) On the facts of this case it was neither reasonable nor proportionate for PC Harris to release the dog in the first place when Mr Roberts ran off from the back of the car.  This was not a borderline case and it must have been clear that there was a danger that PD Oscar would bite Mr Roberts if he did not do as he was asked to do. 
(4) Mr Roberts was a 57- or a 58-year-old man who had drunk considerable amounts of alcohol, as PC Harris believed he had.  Mr Roberts could not therefore be guaranteed to react sensibly if the dog was released on him.  His reaction was unpredictable.  Moreover PC Harris knew that there was a range of reactions that a person who was drunk might have to a dog released to stop him.  The consequences of the action were severe; see the injuries to Mr Roberts which could have been life-threatening.  

29.	Mr Roche submitted that, although the experts had agreed that it was reasonable of PC Harris to release the dog in the first place, it was for the judge to make the decision on whether that was a reasonable thing to do, so that the resulting action of the dog was a reasonable use of force.  He submitted that, bearing in mind all the factors he had enumerated, the judge’s decision was plainly wrong.  

30.	I cannot accept that submission.  The judge in my view took into account all relevant factors.  He took into account no irrelevant ones.  The judge was clearly entitled to accept the experts’ views.  No flaw in the judge’s reasoning can, in my judgment, be found.

31.	Mr Roche also argued -- somewhat tentatively -- that it was not reasonable to release the dog when Mr Roberts was dashing back to the car.  In my judgment that point is not arguable, given the previous actions of PC Harris and the reasonableness of the decision to release the dog in the first place.  

32.	Therefore I would dismiss this appeal.

Lord Justice Jackson:  
33.	I agree.

Lord Justice Ward:  
34.	I also agree, I am afraid.

Order: Appeal dismissed