One Pump Court pupil Joseph Maggs explores a recent appeal in an action against the police. He is currently completing his first six and will be available to take instructions from March 2026.

In this case the trial judge dismissed a disabled man’s claim for false imprisonment, assault and malicious prosecution in relation to his arrest by two police officers while experiencing a mental health crisis. One Pump Court’s Daniel Grütters, instructed by GT Stewart Solicitors in both the trial and the appeal, and led by Stephen Simblet KC of Garden Court Chambers in the appeal following permission, acted for the claimant appellant. In this successful appeal, Lavender J found the police liable for false imprisonment and assault, while dismissing the appeal of the unsuccessful malicious prosecution claim.

Background

Two Humberside Police officers attended the claimant’s home after he phoned the force stating his intention to take his own life. The officers encountered him holding a large knife and, after a disputed sequence of events, tasered, kicked and struck him. He was arrested and charged with possessing a bladed article in a public place and an offence under section 4 of the Public Order Act 1986.

The possession charge was dropped but the claimant was tried and acquitted on the section 4 charge. He then brought claims for false imprisonment, assault and malicious prosecution against the police, which proceeded to trial in the County Court before Recorder Brain. The Judge accepted the claimant’s version of events but nevertheless dismissed the claims. The appeal came before Mr Justice Lavender in the High Court.

False imprisonment and assault

For an arrest without warrant to be lawful under section 24 of the Police and Criminal Evidence Act (“the 1984 Act”) officers must have honestly held and objectively reasonable grounds for i) suspecting that an offence is being committed and ii) for believing that arrest is necessary for one or more of the reasons listed in section 24(5). This is essentially a two-pronged exercise (per Sir Brian Leveson P in Parker v Chief Constable of Essex Police [2018] EWCA 2788): What were the officer’s actual grounds for suspicion or belief? And were those grounds reasonable?

As regards the assault claim, section 3(1) of the Criminal Law Act 1967 and section 117 of the 1984 Act together permit officers to use reasonable force, if necessary, to effect a lawful arrest.

The claimant’s case was that in the moments leading up to this arrest he only held the knife to his own throat and did not threaten the officers with it. The officers’ defence was that the claimant also verbally and physically threatened them. It was on this basis alone that they pleaded reasonable grounds for suspecting the claimant had committed the offence of affray and for believing that arrest was necessary to prevent him from causing physical injury to himself or others (the section 24(5) reason). If this was accepted, then they also used reasonable force in self-defence.

The relevant parts of the trial judge’s decision are quoted in the appeal judgment by Lavender J at ¶22-26. Recorder Brain found that the claimant held onto the knife and disregarded the officers’ command to release it but did not threaten them with it. Despite rejecting large parts of the police, he nevertheless found that the claimant had committed the offence of affray, which meant that the arrest was lawful and the use of force reasonable.

The appeal turned on the fact that the claims were dismissed on a ground that was not pleaded in the case or explored in evidence. As a preliminary point, Lavender J held that the police had not pleaded the allegation that the claimant had actually committed the offence of affray and it was therefore not open to the recorder to find that he had done so (¶64).

While it was possible in theory for the officers to reasonably suspect that the claimant had committed the offence of affray even if they were not directly threatened, their actual pleaded case was that the claimant had committed the offence of affray specifically by threatening them and that, for the same reason, they believed arrest was necessary. Recorder Brain had erred in departing from the well-known principle set out in cases such as Al-Medenni v Mars [2005] EWCA Civ 1041; 7 WLUK 505, that a judge should not decide an issue “on a point which was not pleaded and therefore not explored in the evidence” (¶71). The same error marred his findings in respect of the assault claim (¶79-80).

Lavender J gave his own helpful gloss on the principle at ¶73: “The recorder was, with respect, right to recognise that he needed to make findings as to the officers’ state of mind. The state of someone’s mind is a question of fact, about which judges and juries can and do make findings every day. However, judges make such findings within the framework of the pleaded issues. In the present case, I have concluded that the judge went beyond the pleaded issues.”

Malicious prosecution

The elements of the tort of malicious prosecution are that: (i) the defendant set the law in motion against the claimant (i.e. the identity of the prosecutor); (ii) the prosecution was resolved in the claimant’s favour; (iii) the prosecution was brought without reasonable and probable cause; (iv) the prosecution was malicious; and (v) the claimant suffered actionable damage.

The relevant parts of the trial judge’s decision are quoted in the appeal judgment by Lavender J at ¶27-30. In summary, he found that there was no reasonable and probable cause for charging the claimant with the possession offence but that there was no malice in relation to that charge. In respect of the section 4 prosecution, he found that there was both reasonable and probable cause for the prosecution and no malice. Only the finding on the section 4 prosecution was appealed.

For the same reasons he gave in relation to the claims for false imprisonment and assault, Lavender J held that the trial judge was wrong to find that there was reasonable and probable cause to prosecute the claimant for the section 4 offence (¶84). However, he was unable to allow the appeal because he (erroneously) found that the appeal grounds did not address the identity of the prosecutor nor the question of malice (¶85-86).

Commentary

This case provides a welcome reminder that in an adversarial court system it is not for the judge in an action against the police case to find ex post facto justifications for police misconduct which go beyond the case pleaded by the police defendant. While the facts in this case were more amenable in theory to such a finding than those in Alger v Metropolitan Police Commissioner [2023] EWCH 1582 (KB); 6 WLUK 370, it was not open to the judge to depart from the well-established principle that a judge should not decide a case on a ground which had not been pleaded or explored in evidence.